JUDGMENT OF 28.6.1972 — CASE 37/71 JAMET v COMMISSION

In Case 37/71

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

gives the following

JUDGMENT

Issues of fact and of law

I — Statement of facts and procedure

II — Conclusions of the parties

1. Principally

2. Alternatively

3. In any event

III — Submissions and arguments of the parties

A — Admissibility

B — The substance of the case

Grounds of judgment

Admissibility

Substance of the case

Costs

I —. Statement of facts and procedure

1. The applicant has been an official of Euratom since 1962 where he began as a draughtsman in a post in Grade C 2. Between 1963 and 1967 his duties were described as follows in the periodic reports :

2. In application of Articles 5(4) and 92 of the Staff Regulations of Officials, the table showing basic posts and corresponding career brackets for officials in the scientific and technical services is given in Annex IB of the Staff Regulations.

3. Since he considered that he was performing the duties of a designer and that those duties fell within career bracket B3-B2 the applicant, on the basis of the above-mentioned provisions of the Staff Regulations, requested on 14 December 1967 that he should be re-graded in Category B. This request was rejected on 24 January 1968 by the officers of the Commission on the ground that the applicant was not actually performing the duties of a designer.

4. By a decision signed on 3 February 1971 and notified to the applicant on 25 February 1971 he was appointed to the post of laboratory technician in Grade B4, Step 1 (in principle the career bracket of laboratory technicians is B5-B3).

5. On 3 March 1971 the applicant submitted a complaint against this appointment as follows:

6. After hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry.

II —. Conclusions of the parties

1. Principally

2. Alternatively

3. In any event

III —. Submissions and arguments of the parties

A —. Admissibility

1. The admissibility of the principal claim

2. The admissibility of the alternative claim

3. Admissibility of the application against the decision rejecting by implication the complaint of 3 March 1971

B —. The substance of the case

1. The applicant asserts in the first place that the contested decisions were adopted in breach of Article 92 and Annex 1(b) of the Staff Regulations of Officials and of the decision of the former Euratom Commission of September 1963 concerning the definition of the duties and the powers attaching to the basic posts. In accordance with the latter provision a designer must of necessity be appointed to career bracket B3-B2 and the basic post of designer is defined as that involving sole responsibility for drawings of an entire project, that duty entailing several years' experience as a draughtsman. A designer, even a trainee designer, could by no means be graded in B4 which is reserved to laboratory technicians (laboratory staff).

2. The defendant replies that the applicant has failed to establish that the duties which he performs are those of a designer and that in the present case his long experience as a draughtsman and the fact that he has already carried out projects are not capable of establishing that he performed fully all the duties of a designer as defined in the table describing the basic posts.

3. The applicant replies that the practice relied upon by the Commission is unlawful. In fact the Commission cannot claim to draw a distinction between designers and trainee designers and appoint the latter to Grade B4 which corresponds to a post the duties of which are not performed by the applicant. When a designer is at the beginning of his career he must be appointed to the starting grade in the career bracket of designer otherwise all starting grades in all career brackets for officials starting in those career brackets must be reduced by a grade.

4. The defendant replies that the applicant has failed to show with a sufficient degree of proof that either since 1965 or since the date of his promotion to B4 he has been performing in full all the duties of a designer.

1. The defendant asserts that the application is inadmissible in that it seeks, principally, a decision, or at least a ruling, that the applicant should be classified in Grade B 3 with effect from 26 August 1965 and in that, alternatively, it requests the partial annulment of the decision of 3 February 1971 and as a further alternative the annulment of the decision rejecting by implication the complaint submitted by the applicant against the said decision.

2. The applicant, a draughtsman in Grade C1 at the Joint Nuclear Research Centre at Ispra, having made various unsuccessful requests to have his post re-graded in the career bracket of designer, B3-B2 in 1967 and 1968, was appointed by a decision of 3 February 1971 to a post as a laboratory technician in Grade B4, Step 1.

3. On 3 March 1971 he requested by means of a complaint through official channels that that decision be amended by substituting for the reference to laboratory technician that of designer.

4. Since the competent authority did not reply to this complaint the applicant lodged this application before the Court.

5. The application is principally for a decision that the applicant should be classified in Grade B3 with effect from 26 August 1965.

6. This first head of claim must be dismissed as inadmissible since that request has already been the subject of previous implied decisions of rejection which were not contested within the period laid down in Article 91 of the Staff Regulations of Officials.

7. The applicant objects that the decision of 3 February 1971 recognizes by implication that the requests previously rejected were well-founded and thereby constitutes a new fact which re-opens the period for lodging an application against those decisions.

8. Without it being necessary to consider to what extent a new fact is capable of re-opening a period for lodging an application which the person concerned has allowed to expire, it is sufficient to state that, far from having the meaning which the applicant attaches to it, this decision expressly guides that it will only take effect from 1 January 1971.

9. Secondly the application is for the partial annulment of the instrument, appointment and promotion of 3 February 1971, in so far as it describes the post to which the applicant is appointed as that of a laboratory technician and refers to the grade to which he is promoted as Grade B4.

10. This request is also inadmissible.

11. The parts of the contested decision whose annulment is requested are inseparable from this decision as a whole so that in their absence the measure in dispute would no longer be capable of producing legal effects.

12. Furthermore, if the Court were to annul the entire measure this would constitute a ruling ultra petita since the application against the contested decision does not concern public policy.

13. On the other hand, the application is admissible to the extent to which it refers to the anulment of the implied decision of rejection resulting from the failure to reply to the complaint against his appointment and promotion of 3 March 1971 submitted by the applicant to his immediate superior.

14. This complaint constitutes a request for re-grading of a post and, as such, is admissible.

15. Before the decision of 3 February 1971 the applicant had for several years held the post of draughtsman which in accordance with Annex I(B) to the Staff Regulations corresponds to career bracket C4-C1 on the office staff of the Scientific and Technical Services of the Joint Nuclear Research Centre.

16. During this period various periodic reports were drawn up concerning him the last of which, relating to the period from 1 July 1965 to 30 June 1967, states as the principal duties performed trainee designer, electromechanical design and planning.

17. According to the above-mentioned annex, the post of draughtsman corresponds to a career bracket covering Grades C4-C1 and the post as designer corresponds to a career bracket covering posts B3-B2.

18. It was intended that those two career brackets should be filled by the Design Office staff of the Joint Research Centres.

19. Two grades correspond to the career bracket of designer which, according to the description of duties, involve posts defined as follows :

20. In view of the skills acquired by the applicant which were attested inter alia by his periodic report the defendant appointed him to Grade B4 to a post described in Vacancy Notice No COM/P/2/70 as that of laboratory technician by altering his category.

21. Nevertheless the Commission does not contest that this description does not correspond to the post occupied by the applicant.

22. According to the description of duties, a laboratory technician in Grade B4 is responsible for carrying out experiments and tests in various sectors and assembling and classifying the results and is therefore a member of the laboratory staff.

23. The defendant has stated that the duties actually performed under the incorrect description of laboratory technician correspond to those of a draughtsman who has shown that he has the ability to occupy the post of designer and who, in addition to the usual duties of draughtsmen with which he is entrusted, occasionally carries out complete, albeit simple, projects without however performing all the duties which distinguish the post of designer from that of draughtsman.

24. The applicant has not contested that he did not perform all the duties of a designer.

25. On the contrary he asserted that this fact was unimportant because, since the appointing authority did not keep him in the post of draughtsman in Grade C1, it should inevitably have appointed him to the post and grade of a designer.

26. Whilst it is established that the applicant has the ability required for the post of designer it is however not established with a sufficient degree of proof that he in fact regularly performs all the duties constituting the said post.

27. There is no doubt that the legality of the decision in question is very uncertain in that it allocates to an official a post in Grade B4 the duties of which were not performed by him, as was known, but this fact does not prove that the applicant performed duties corresponding to the post and grade in which he requests to be re-graded.

28. Consequently the application must be dismissed.

29. Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

30. The applicant has failed in his application.

31. Nevertheless under Article 70 of the said Rules of Procedure, in proceedings brought against them by servants of the Communities, institutions shall bear their own costs.

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 Treaty establishing the European Economic Community; Having regard to the Staff Regulations of Officials, especially Articles 5 and 91 and Annex I (B) ; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70, THE COURT hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.