Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

As you know, the applicant in the action on which I am today giving my opinion originally worked for the Euratom Commission. From 1 February 1964 he was posted to the joint Legal Department of the executives of the Communities in the Euratom section in Grade A 5. With effect from 1 January 1965 he was promoted to Principle Administrator in Grade A4. After the formation of a single Commission in 1967 the Legal Department was restructured. However the applicant remained in the Euratom and Research Group which, at that time consisted of one A2 official (the head of the group) one A3 official and two A4 officials and which was responsible for questions of the application of the Euratom Treaty, of technological development and of research in the sphere of the European Coal and Steel Treaty. Together with another colleague in Grade A4 the applicant was particularly concerned with the question of nuclear research, with the circulation of the knowledge acquired and with matters concerning patents and research agreements within the scope of the European Coal and Steel Treaty. In addition he had responsibility for problems of civil liability in the sphere of nuclear matters.

By a decision of 24 July 1968 the colleague of the applicant was promoted to Grade A3 with effect from 1 July 1968 without there being any immediate alteration in the matters for which he was responsible. In the course of 1969, to be exact from 25 April 1969, this official received leave on personal grounds by a decision of the appointing authority which was originally meant to finish on 24 May 1970 but which however later was regularly extended and, in all, lasted until December 1970. During this time the composition of the Euratom and Research group in the Legal Department of the Commission did not alter (only with effect from 15 January 1971 was another A6 official posted to it). This meant that during the absence of his colleague on leave, the applicant was essentially alone responsible for the sphere of work which had originally been assigned to him and to his colleague jointly.

In view of this and of the abovementioned promotion of his colleague (wherein he saw an upgrading of the post), the applicant came to the view that he had temporarily been given responsibility for that upgraded post and that he therefore had a claim under Article 7 (2) of the Staff Regulations. Accordingly on 3 October 1969 he applied for payment of a differential allowance equal to the difference between the remuneration carried by his substantive grade and step and the remuneration he would receive in respect of the step at which he would be classified in the starting grade if he were appointed to the career bracket of his temporary posting. However the application was unsuccessful. The applicant also achieved no success in his action before the court.

Taking the view that he was filling the higher post of his colleague on leave on a temporary basis and in view of the fact that the leave had lasted longer than the period of one year provided in Article 7 (2), on 16 July 1970 the applicant made a formal complaint to the appointing authority. Setting out the known facts, he argued that it was incompatible with Article 7 of the Staff Regulations that the temporary posting should last longer than one year. The Commission should therefore remedy the situation and draw the necessary conclusions. Since the career brackets and grades must correspond, this had to be done by altering the plaintiff's career bracket, that is, by promoting the applicant to Grade A3 with effect from 24 April 1970. The applicant did not receive an answer within the two months' period laid down in Article 91 of the Staff Regulations. His application was only expressly rejected by a letter from the President of the Commission of 29 September 1970 by reference to the fact that the responsibilities which the applicant had undertaken since his colleague had been on leave were hot linked to a post in a higher career bracket.

For these reasons on 19 November 1970 the applicant brought the present action in which he seeks:

The Commission believes that these claims must also be rejected as unfounded.

I snail now go on to examine what is to be made of the dispute which I have described. I must first mention that after the applicant's colleague had returned from leave and after the issue of the vacancy notice for his A3 post in October 1970, he did not return to his earlier sphere of work but, with effect from 1 January 1970, was posted to the Competition group in the legal department.

1. Since the applicant principally argues against the implied rejection of his request of 16 July 1970 and since, as we have seen, this request was for a posting for Grade A3, the main issue of the proceedings is whether the Commission was justified in refusing to reclassify the applicant. As we know the applicant denies that it was so justified by referring to the principle, often emphasized in the decided cases, of the correspondence of posts and grades (Case 102/63 Boursin v High Authority [1964] ECR 691) and by arguing that he does in fact carry out the duties of an A3 official. The Commission replies that the applicant did not in fact carry out the duties relating to a higher post and that in addition, there is no decision of the appointing authority, which is indispensable according to the Staff Regulations. The important problems in the present case are now made clear.

2. In the light of these conclusions, I can deal briefly with the further claim for payment of monetary compensation for the material and nonmaterial damage caused by the allegedly irregular administrative situation.

3. There remains finally the question of costs. Following the precedent set in other proceedings, it here seems not unreasonable to take account of the unclear and complex legal situation and to bear this in mind in the applicant's favour. Since the uncertainty of the legal situation is the fault of the Commission, an order might be made for part of the costs incurred by the applicant to be borne by the Commission.

4. To summarize: I am of the opinion that the action is admissible but that it cannot be regarded as well founded. It must therefore be dismissed in its entirety. Nonetheless it appears to me justified to order that part of the costs incurred by the applicant be borne by the Commission.

1 Translated from the German.

2 Euler, Europäisches Beamtenstatut, Vol. 1, p. 78.