JUDGMENT OF 16. 6. 1971 — CASE 77/70 PRELLE v COMMISSION

In Case 77/70

THE COURT (First Chamber) composed of: A. M. Donner, President of Chamber, R. Monaco (Rapporteur) and J. Mertens de Wilmars, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Grounds of judgment

Admissibility of the request of 28 May 1971

The substance of the case

Costs

I —. Facts and procedure

II —. Conclusions of the parties

1. Dismiss the application both as to the principal and secondary claims as unfounded;

2. Order the applicant to pay the costs.

III —. Submissions and arguments of the parties

1. This application is directed against a decision of the Commission rejecting the complaint made by the applicant on 16 July 1970.

2. In his application, the applicant has maintained that as he occupied a post in a higher career bracket of his category after the expiry of the period set out in Article 7 (2) of the Staff Regulations, he has a right to compensation for the non-material and material damage caused to him by the continuance of such an administrative situation, which fails to comply with the regulations.

3. In its judgment of 16 December 1970, given in respect of the same parties, the Court ruled that the applicant had no right to the differential allowance set out in Article 7 (2) of the Staff Regulations since the duties undertaken by the applicant did not necessarily imply greater responsibility than was normally his.

4. In his reply, the applicant gave details of his position stating that since it appeared from the abovementioned judgment that his duties were similar to those carried out by an official of Grade A 3, it followed that his post should be reclassified in the same grade and in the same career bracket.

5. Therefore he argues that he should be classified in Grade A 3 with effect from 25 April 1970 or in the alternative that the Commission should be ordered to pay him appropriate monetary compensation.

6. By a document dated 28 May 1971, the applicant asked the Court to order, in accordance with Article 60 of the Rules of Procedure, the hearing of witnesses in order to determine the level of the duties which he had undertaken in the post in question.

7. Since this request was presented at a time when, in accordance with Article 59 (2) of the Rules of Procedure, the oral procedure had been closed, it may only be admitted if it relates to facts which are capable of having a decisive influence and which the party concerned was not able to put forward before the closure of the oral procedure.

8. Since this was not so in this case, the request is inadmissible.

9. The applicant, who is classified in Grade A 4 of the legal department of the Commission, undertook at least a substantial part of the duties of a colleague in Grade A 3 who was on leave on personal grounds from 25 April 1969 and who was re-integrated into the legal department on 1 January 1971.

10. The abovementioned judgment declared with the force of res judicata that, regard being had to the organization of the legal department of the (Commission, there was no marked difference between the duties attaching to the post occupied by the applicant and those attaching to the post which he occupied temporarily.

11. Nevertheless, the fact that an official carries out tasks which also belong to a post in a higher career bracket, although it may be a factor to be taken into account in respect of his possible promotion, cannot of itself suffice to justify a reclassification of his post.

12. This is particularly so in departments such as the one to which the applicant belongs, where the duties assigned to servants in different grades are of a comparable nature and are for this reason interchangeable.

13. Therefore the assignment of the duties in question to the post occupied by the applicant cannot have the effect of upgrading the post and making it necessary to classify it in a higher grade.

14. For these reasons the principal conclusions in the application must be rejected.

15. With regard to the secondary conclusions, for the payment of damages, it follows from the foregoing considerations that the fact that the applicant had to assume the duties referred to cannot have caused him material or non-material damage for which compensation would be due to him.

16. Therefore the secondary conclusions must also be rejected.

17. The applicant has failed in his submissions.

18. Article 69 (2) of the Rules of Procedure provides that the unsuccessful party shall be ordered to pay the costs.

19. Nevertheless Article 70 of those rules provides that the costs incurred by institutions in actions by servants of the Communities shall be borne by the institutions themselves.

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 treaties establishing the European Communities; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 5; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.