JUDGMENT OF 9. 7. 1970 — JOINED CASES 59 AND 71/69 BREMBATI v COMMISSION
In Joined Cases 59 and 71/69
THE COURT (Second Chamber) composed of: P. Pescatore (Rapportuer), President of Chamber, A. Trabucchi and W. Strauß, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
II — Procedure
III — Conclusions of the parties
IV — Submissions and arguments of the parties
A — Admissibility of Application 71/69
B — Substance
1 — Submission based on the first sentence of the second paragraph of Article 46 of the Staff Regulations
2 — Submission based on the second sentence of the second paragraph of Article 46 of the Staff Regulations
3 — Submissions based on the first paragraph of Article 62 of the Staff Regulations
4 — Submission based on the principle of equality of treatment
Grounds of judgment
I — Admissibility
II — Substance
1 — Submission based on the first sentence of the second paragraph of Article 46 of the Staff Regulations
2 — Submissions based on the second sentence of the second paragraph of Article 46 and on the first paragraph of Article 62 of the Staff Regulations
III — Costs
I —. Facts
(a). to be classified in Grade A4 and to be paid the basic salary corresponding to that grade rather than to Grade A5, and with effect from 1 October 1968 rather than from 1 November 1968;
(b). to be awarded a step in Grade A4 corresponding to an actual, rather than a notional, basic salary which is not lower than that which he would have received in his former grade;
(c). for the administration to take into account the twenty-four notional steps acquired in his former grade.
(a). to be awarded Step 5 in Grade A4 with effect from 1 October 1968;
(b). to be awarded a notional seniority in that step which would take into account the seniority acquired in Step 8 of Grade A5.
II —. Procedure
III —. Conclusions of the parties
IV —. Submissions and arguments of the parties
A —. Admissibility of Application 71/69
B —. Substance
1. — Submission based on the first sentence of the second paragraph of Article 46 of the Staff Regulations
2. — Submission based on the second sentence of the second paragraph of Article 46 of the Staff Regulations
3. — Submissions based on the first paragraph of Article 62 of the Staff Regulations
4. — Submission based on the principle of equality of treatment
1. By an application dated 15 October 1969 the applicant instituted proceedings for the annulment of the implied decision of rejection resulting from the failure of the Commission to give any reply to his request through official channels submitted on 11 June 1969 concerning his classification following promotion from Grade A5 to Grade A4. (Application 59/69).
2. As a subsequent decision of the Commission of 29 September 1969 altered the applicant's position in certain respects, he lodged an application against that decision on 2 December 1969. (Application 71/69).
I —. Admissibility
3. The Commission contends that Application 71/69 is inadmissible in that it lacks legal interest as its subject-matter is no different from that of Application 59/69.
4. Although the decison of 29 September 1969, which forms the subject-matter of Application 71/69, did not satisfy the applicant's claims, it did, however, alter his seniority of grade and step in some respects.
5. Therefore, in order to safeguard the chances of success of his original application, the applicant had a legal interest in lodging another application against this new decision.
6. As the Court has ordered the joinder of these two proceedings it is unnecessary to consider to what extent, if at all, the new application rendered the first application pointless.
7. For this reason the two applications must be declared jointly admissible.
II —. Substance
1. — Submission based on the first sentence of the second paragraph of Article 46 of the Staff Regulations
8. The applicant alleges that the Commission has infringed the first sentence of the second paragraph of Article 46 of the Staff Regulations by failing to take into account, for his classification in the scales of remuneration for Grade A4, the notional steps which he had reached through having been classified for more than twenty-four months in Step 8 of Grade A5
9. Under the terms of the first paragraph of Article 46 of the Staff Regulations an official appointed to a higher grade shall, in his new grade, have the seniority corresponding to the notional step equal to or next above the notional step reached in his former grade, plus the amount of the two-yearly increment for that grade.
10. For the application of this provision, the first sentence of the second paragraph of the same article states that Each grade shall be divided into notional steps corresponding to months of service and notional salaries rising by one twenty-fourth of the two-yearly increment for that grade throughout the span of the actual steps.
11. The purpose of this provision is in case of promotion to ensure that the seniority which may have been acquired by the official concerned is maintained for the purposes of future two-yearly increments.
12. Thus, the monthly progression envisaged by the provision in question cannot continue beyond the eighth step which forms the salary ceiling in Grade A5.
13. This is the meaning of the expressions notional step and notional salary which refer to possible rather than to imaginary steps in the scale of remuneration, as would be those which continued beyond the maximum level of remuneration laid down in the table in Article 66 of the Staff Regulations.
14. It appears therefore that the phrase throughout the span of the actual steps must be interpreted as referring to the intermediate intervals of remuneration between those steps, the last of which represents a limit which cannot be exceeded without distorting the system of scales of remuneration provided for in the Staff Regulations.
15. The result of this is, in this instance, that the monthly progression envisaged by the first sentence of the second paragraph of Article 46 cannot therefore exceed the eighth of Grade A5.
16. For this reason the submission based on the first sentence of the second paragraph of Article 46 must be rejected.
2. — Submissions based on the second sentence of the second paragraph of Article 46 and on the first paragraph of Article 62 of the Staff Regulations
17. The Commission classified the applicant in Step 4 of Grade A4 with a notional seniority of twenty-three months by applying, for this purpose, the rule appearing in the final section of the first paragraph of Article 46 of the Staff Regulations.
18. By virtue of this provision the Commission chose as the basis of calculation the salary received in the former grade plus the amount of the two-yearly increment for that grade, and took into consideration the notional salary next above.
19. As the salary calculated in this way was BF 100 lower than that received in his former grade, for one month the Commission continued to pay the remuneration received before promotion, until the official concerned could attain the salary carried by the higher step, that is, Step 5 of Grade A4.
20. The applicant considers that to determine his salary in this way is contrary to the rule contained in the second sentence of the second paragraph of Article 46, which entitles him to be paid immediately not less than the basic salary attaching to Step 5 of Grade A4.
21. For the reasons set out above, the provisions contained in the first paragraph and the first sentence of the second paragraph of Article 46 concerning the determination of seniority on the basis of notional steps for the purposes of a future rise to a higher step of remuneration in the new grade were not applicable to the applicant.
22. For this reason the applicant's salary ought to have been fixed by applying the rule contained in the second sentence of the second paragraph of Article 46 of the the Staff Regulations according to which: An official appointed to a higher grade shall in no case receive a basic salary lower than that which he would have received in his former grade.
23. The application of this provision depends on a comparison to be made between the basic salary to which an official is entitled in his new grade and the basic salary which he would have received had he not been promoted.
24. The concept of basic salary laid down in Article 62 of the Staff Regulations is set out in detail in Article 66, according to which basic salaries are determined for each grade and step by a table of figures forming an integral part of that same provision.
25. In this instance, therefore, the comparison envisaged by the second sentence of the second paragraph of Article 46 must be made between, first, the basic salary carried by Step 8 of Grade A5 and, secondly, the basic salary carried by the corresponding steps in Grade A4.
26. As the basic salary carried by the fourth step of Grade A4, as fixed by the table which was in force when the contested decisions were taken, was lower than the basic salary which the applicant would have received in his former grade, the Commission should have awarded him the step next above.
27. Therefore, the submissions based on the second sentence of the second paragraph of Article 46 and the first paragraph of Article 62 are justified to the extent to which they refer to the applicant's classification at the time of his promotion in the fifth step of Grade A4, without any seniority in step.
III —. Costs
28. Under the terms of Article 70 of the Rules of Procedure, in proceedings by officials of the Communities institutions shall bear their own costs.
29. The applicant has failed in his principal head of claim.
30. Although his alternative conclusions have been accepted it must be found that, apart from a minimal difference, they have only confirmed the practical result of the decisions in question.
31. In these circumstances, it is reasonable for the applicant to be ordered to pay the costs incurred by him.
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials, especially Articles 45, 46, 62 and 66 ; Having regard to the Protocols on the Statute of the Court of Justice annexed to the Treaties establishing the ECSC, the EEC and the EAEC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 43, 69 and 70, THE COURT (Second Chamber) hereby :
1 Annuls the contested decisions to the extent to which they refused to classify the applicant on his promotion in the fifth step of Grade A4 without any seniority in step;
2 Orders the parties to bear their own costs.