Opinion of Mr advocate-general Roemer

Mr President

Members of the Court,

Mr Tontodonati, the applicant in the case on which I have to give my opinion today, entered the service of the Euratom Commission on 11 September 1958. He was first employed on the basis of a contract concluded in accordance with the provisions of Belgian Labour Law, but, with effect from 1 March 1959 he was, with the rank of clerk, subject to the conditions of employment of other servants of Euratom. At his request and with effect from 31 July 1961, he was transferred to the Ispra Nuclear Research Centre, where he is still at present working.

After the entry into force of the Staff Regulations of Officials of the Community, he was appointed an official with the designation of Chief Clerk in Grade C 1, step 1, with effect from 1 January 1962. Mr Tontodonati had been aware since 28 February 1963 of the decision to appoint him, which seems to have been taken on 20 February 1963. But the official dispatch of the act of appointment is dated 16 July 1963, which is the date on which he was notified of it.

As regards the applicant's duties it should be said that he works in the Supplies and Stores Department at the Research Centre. In his 1962 periodic report his duties were indicated by the tide adjoint responsable pour la section douanière (assistant responsible for the customs section). After his transfer to the Inventory section of the Supply Department (a transfer effected with classification in Grade C 1, step 2) the 1963, 1964 and 1965 reports described Mr Tontodonati's duties as responsabile dell'esecuzione del lavoro inventario (responsibility for inventory work). In 1965, this description was further added to by the words statistique des biens du CCR (statement of material at the JRC). Finally, in the reports for the years 1967 and 1969, the applicant's duties were described as being: Codification pour le bureau local des inventaires de tout le matériel commande pour l'etablissement. Determination du caractère d'inventariabilité et verification de la conformité de la commande du materiel livré à 1'etablissement. (Classifying for the local office inventories of all the material ordered for the Centre. Ascertaining the appropriate category of the material supplied to the Centre and checking that it conforms with orders).

From the outset, the applicant has contested his classification within the salary structure. Thus, as early as 28 February 1963, he addressed, pursuant to Article 90 of the Staff Regulations of Officials, a complaint to the Commission and he reminded the President of the said Commission of this by letter dated 5 July 1963. But the complaint was unsuccessful. A letter sent to Mr Tontodonati by the Directorate-General for Administration on 19 September 1963 informed him that his complaint was rejected because, in the Commission's view, there was no inconsistency between the work he was doing and his classification. A second complaint, on similar lines, which, again pursuant to Article 90 of the Staff Regulations, Mr Tontodonati had addressed on 28 April 1966 to the Director of the Ispra Research Centre was, as is made clear in a letter of 25 May 1966, also rejected. On 28 January 1969, the applicant sent the Director of the Centre a fresh request for the correction of his classification and this, too, was rejected in a letter dated 25 March 1969 which fully explained why. Finally on 8 December 1970, again pursuant to Article 90 of the Staff Regulations, Mr Tontodonati addressed a formal complaint to the President of the Commission in which he claimed that, in view of his duties, he ought to be classified in career bracket B 3/B 2 with retroactive effect to 1 January 1963 and to receive appropriate arrears of salary. This complaint, which reached the Commission on 15 December 1970, has evoked no reply.

It was as the result of the Commission's silence that Mr Tontodonati brought his case before the Court on 13 April 1971. Although no claims are formulated in his application of 13 April 1971, it is clear from the reference made therein to the subject of the dispute that what he is seeking is recognition of his right to obtain the correction of his classification which he had claimed in his complaint.

The defendant Commission's response to the action brought against it was to submit an application under Article 91 of the Rules of Procedure in which it contended that the action was inadmissible and claimed that the Court should so rule without going into the substance of the case. As the oral proceedings on 10 November were devoted to this application and to the observations submitted by the applicant, my opinion is concerned only with the admissibility of the action.

1. It is clear that this question presents no difficulties in so far as it is concerned with compliance with the period prescribed for an appeal and in so far as one only has to examine whether the periods prescribed under Article 91 of the Staff Regulations, which commence to run from the day on which the complaint reached the Commission, namely, 15 December 1970, have been observed. As no express decision was taken in answer to the complaint, and as the appeal was brought before you on 13 April 1971, that aspect seems really to present no difficulty.

2. On the other hand, the admissibility of the application causes difficulty from another point of view.

3. Thus, following the Commission's view, my opinion is as follows: The application must be dismissed as inadmissible and that, in consequence, the applicant must bear his own costs.

1 Translated from the German.