Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

The applicant in the proceedings on which I shall give my opinion today, entered the service of the European Atomic Energy Community on 1 January 1962 and was appointed an established official with effect from 1 July 1962. At that time he was graded in career bracket C4-C1 in Grade C2-3 and was employed as a draughtsman at the Nuclear Research Centre at Ispra.

In view of the fact that in the annual report of 26 August 1965 his duties were described as dessinateur — projets de mécanismes divers (draughtsman — various mechanical designs) and that according to the findings of a Commission projeteurs et dessinateurs (Committee of designers and draughtsmen) of 3 May 1967 he was at the technical level of a projeteur débutant (trainee designer), the applicant reached the view that he should be graded in Category B. Accordingly, on 14 December 1967 he sent an application to this effect to the appointing authority. Nevertheless the Director of the Nuclear Research Centre rejected this request on 24 January 1968. He pointed out that the applicant was still a dessinateur (draughtsman) and not a projeteur (designer); it was therefore impossible to speak of a discrepancy between the grade and the duties performed. When the applicant thereupon observed in a letter of 6 July 1968 that since 1964 he had been carrying out projects and when he repeated his request for an amendment of his grading, referring to the description of his duties in the above-mentioned reports of 26 August 1965 and 25 March 1968, he received no further reply from the administration of the Nuclear Research Centre. At that time he took no further action. By a decision of 3 February 1971 which was communicated to the applicant on 25 February 1971 he was then promoted to Grade B4-4 with effect from 1 December 1970 and appointed to the post of laboratory technician, whilst, so he asserts, retaining the same duties. His seniority in the said grade was to begin to run from 1 December 1970 and his seniority in the step from 1 December 1969. Nevertheless the applicant did not concur with that decision. On 3 March 1971 he accordingly submitted an administrative complaint to the appointing authority which was registered on 18 March 1971 and requested therein amendment of his grading with reference to the fact that he was a dessinateur-projeteur (designer).

Since he received no reply to this complaint, on 2 July 1971 he finally applied to the Court of Justice thereby initiating the proceedings which must at present be decided.

In his application the following requests are made:

I shall now consider what view should be taken of these requests.

1. As the Court is aware the Commission considers that the principal application for the amendment of the grading with effect from 26 August 1965 is inadmissible. It points to the fact that the applicant has already endeavoured by means of his request of 14 December 1967 to have his grading altered. This was expressly rejected in January 1968. A further request submitted in June 1968 remained unanswered and accordingly constitutes an implied rejection in accordance with the service regulations of the Communities. Since the applicant failed to apply to the Court of Justice at that time it must be accepted that his grading up to 1 December 1970 (that is to say, until the entry into effect of the decision promoting him) can no longer be contested. Thus an application lodged with this purpose in view must be considered as having been filed out of time and thereby as inadmissible.

2. As I have already said, the applicant also requests in the alternative the partial annulment of the above-mentioned decision of promotion in so far as it describes the post to which the applicant was appointed as that of agent technique and provides for its classification in Grade B4. Following the annulment of that decision the applicant seeks in addition a finding that he in fact holds the post of dessinateur-projeteur and that he must be classified in Grade B3 with effect from 1 December 1970 at least.

3. Compared to the claims previously examined, the claim for the annulment of the decision rejecting by implication the administrative complaint of the applicant is meaningless in itself. As we have just seen, the alternative claim was in fact based on that administrative complaint. What I have said with regard to it thus necessarily applies also to the third claim. It must be dismissed as inadmissible and therefore does not call for further comment.

4. In view of this conclusion, the accuracy of which in my opinion cannot be doubted, there is no need to embark upon a subsidiary consideration of the substance of the case and in so doing to undertake an appraisal of the duties assigned to the applicant.

5. I must agree finally with the Commission in the view that the application must be dismissed as inadmissible, with regard to both the principal and the alternative claims. The necessary decision on costs follows in these proceedings from Article 70 of the Rules of Procedure.

1 Translated from the German.