JUDGMENT OF 12. 7. 1973 — CASE 28/72 TONTODONATI v COMMISSION

In Case 28/72

THE COURT (Second Chamber) composed of: P. Pescatore (President), M. Sørensen and A. J. Mackenzie Stuart (Rapporteur), Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Statement of facts

II — Submissions of the parties

III — Pleas and arguments of the parties

A — On admissibility

B — Merits

C — Discovery

IV — Procedure

Grounds of judgment

On admissibility

Merits

On costs

I —. Statement of facts

II —. Submissions of the parties

III —. Pleas and arguments of the parties

A —. On admissibility

B —. Merits

C —. Discovery

IV —. Procedure

1. By letter of 31 January 1972, addressed to the President of the Commission, the applicant, an official at the Joint Research Centre at Ispra, submitted a claim to be classified in Category B, with retrospective effect from February 1971;

2. The Commission maintains that the action is inadmissible on the ground that the implied refusal, arising from the President of the Commission's silence, was no more than confirmation of a previous decision which was no longer open to challenge.

3. The applicant states that a new development, which substantially changed the circumstances in which his grade was fixed when he was first established, took place in January 1971.

4. During the oral proceedings, the defendant admitted that these statements were correct. The service has, in fact, been re-organized, resulting in an extension of the scope of the applicant's duties. It was, therefore, in order for the latter to ask the Commission to review his position in the administration in view of the changes which had taken place in the structure of the department to which he belonged.

5. The implied rejection of his claim constitutes, therefore, an act adversely affecting the applicant.

6. The stock inventory section at Ispra consisted of three members of staff, one classified in grade B 1, another, his assistant, in grade B 4, and the third, the applicant, in Category C 1.

7. The applicant contends that, as he has continued to discharge the responsibilities previously borne by these two officials, he is now head of the section and should be re-classified in the career-bracket B 2/B 3.

8. Though the administration cannot compel an official to fulfil tasks on a level higher than his grade, the fact that he agrees to fulfil them can be a factor to be borne in mind in connection with promotion, but does not give him the right to be re-classified.

9. It is clear from explanations supplied by the Commission that it was not only category B posts of the inventory section which were transferred to another department; the corresponding budgetary entries had been transferred as well.

10. The action is therefore unfounded.

11. The applicant has failed in his action.

On those grounds, Upon reading the pleadings; Upon reading the report of the Judge-Rapporteur; Upon hearing the oral arguments of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaties establishing the European Communities; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of the European Communities, expecially Articles 45 and 91; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (Second Chamber) hereby:

1 Dismisses the action;

2 Orders each party to bear its own costs.