Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

In the autumn of 1973 the Commission announced in the Official Journal of the European Communities (C 71, p. 4, of 8 September 1973) that it was organizing an open competition on the basis of qualifications and tests to draw up a reserve list of Senior Administrative Assistants in Grades 3 and 2 of Category B (Notice of Competition No COM/B/106).

The duties attached to the posts to be filled were described as being those of an:

Candidates were to be not less than 28 and not more than 40 years of age. The requisite qualifications and experience were described in the notice in the following terms:

Mr Blasig, the applicant in the present proceedings, successfully took part in that competition. He thereupon received a letter dated 6 September 1974 from the Director of the Personnel and Administrative Directorate responsible for the offices of the Commission in Luxembourg. In that letter he was offered a post as a Senior Administrative Assistant (Programmer) and was informed that if he accepted the offer he would be appointed as a probationary official in Grade 3, Step 1, of Category B. On 1 October 1974 the applicant took up his duties and was assigned to a post paid from the operating budget in the administrative unit Analysis and Programming. By a decision of 18 October 1974 he was appointed as a probationary official in the post of Senior Administrative Assistant in Grade B 3, Step 1, with effect from 1 October 1974. By decision of 16 July 1975 he was appointed an established official in his post with effect from 1 July 1975.

Even before then, in a letter of 6 December 1974, the applicant had approached the Commission with a dual request. First, he asked for information as to what criteria had governed assignment to grades and steps under Competition COM/B/106, whether use had been made of the possibilities provided by Article 31 (2) (b) or the second paragraph of Article 32 of the Staff Regulations and what the criteria were for his being placed in Grade B 3, Step 1. Secondly, as a precaution he objected to his being given too low a grade and, referring to his experience, requested that he be placed in Grade B 2, Step 1, or at least B 3, Step 3.

That complaint was rejected by a letter dated 2 June 1975 which cited and enclosed a Commission decision which came into force on 1 July 1973 on the criteria applicable to grade and step classification upon recruitment. On that occasion there was no application to the Court.

On 20 December 1979 the applicant made a further complaint to his appointing authority. In substance he referred therein to the description of the duties and competences entailed in the basic posts laid down in Annex IA to the Staff Regulations contained in a Commission decision of 1 July 1972 and to the said annex to the Staff Regulations, and, mentioning the particulars of the duties attaching to the posts given in Notice of Competition No COM/B/106, the conditions of admission to the competition and the duties he had in fact performed after taking up employment, ne claimed that Notice of Competition No COM/B/106 had in fact advertised a post in Career Bracket B 1 and that he ought therefore to have been placed in Career Bracket B 1 with effect from 1 October 1974.

That complaint was rejected by the appropriate member of the Commission in a letter dated 24 April 1980. It was pointed out on the one hand that the applicant's grading was no longer open to challenge because he had not brought further proceedings after the rejection of his first complaint; further, it was claimed that the grading was in fact justified because he had taken part in a competition organized for Career Bracket B 3/B 2; the alleged performance of more valuable duties did not entitle him to be placed in another career bracket.

Thereupon the applicant brought the matter before the Court of Justice claiming that the Court should:

The Commission contends that those claims are inadmissible and in any event unfounded and should be rejected.

My opinion on the issues is as follows.

I — Admissibility

I — Admissibility

The Commission considers the entire action inadmissible. The claim for alteration of the applicant's grading involves criticism of a 1974 decision against which a complaint was lodged at the time but was not followed by court proceedings. That decision is no longer open to challenge for the subsequent decision of the appointing authority rejecting the applicant's complaint of 20 December 1979 represents no more than a confirmatory measure without any substance of its own. But in so far as the applicant relies on the fact that he did not become aware of the incorrect grading until 1979 when he received a Guide to Staff Reports containing the description of duties laid down in 1972, the crucial factor in the Commission's opinion is that that did not amount to the occurrence of new facts. Besides, the question when the applicant actually became aware of that matter is not decisive because the description of duties was published in the Staff Courier of 4 September 1973 and the Guide to Staff Reports was made available to the applicant in 1975 in connection with the first report on him. The inadmissibility of the application in relation to grading automatically renders the claim for arrears of salary inadmissible. Since that claim likewise has its origin in the allegedly incorrect grading the same considerations must apply with regard to the time-limits to be observed. If, however, it were to be treated as an action for damages, then according to Article 43 of the Statute of the Court of Justice of the EEC it was already out of time when the complaint was lodged on 20 December 1979.

Against that the applicant states in the first place that his complaint in 1974 was not designed to secure a place in Grade B 1 but simply, as is clear from the Commission decision, to obtain a higher step within Career Bracket B 3/B 2 having regard to his previous experience. He became aware that he was entitled to be graded in B 1 only when in October 1979 he received the Guide to Staff Reports containing the description of duties. The Commission cannot object that the description of duties had been published in 1973 or that the applicant had received at least a supplement of the Guide to Staff Reports in 1975. In fact no such supplement was sent to the applicant and so he did not receive knowledge of the description of duties in 1975. As regards the publication thereof in 1973 it is significant that the applicant was not then in the employment of the Community. Nor may it be assumed that he was bound to ascertain the position himself; it is rather the duty of the employer to make available to his employee in good time all resolutions and decisions appertaining to his legal status.

With regard to this argument it must be stated at the outset that the view expressed by the applicant in the written procedure to the effect that unlawful decisions may be challenged at any time is obviously mistaken. That is quite clearly not in accord with the Staff Regulations. Because of the principle of legal certainty, which is important both to the administration and to others, review of the lawfulness of measures adversely affecting officials has been made conditional upon its being sought within certain time-limits first by means of a complaint to the appointing authority and then by means of an application to the Court.

The essential point is that the applicant is in fact concerned with the modification of a decision which was taken in 1974 in respect of his grading in a salary scale when he entered the service. In view of the time-limits applicable under the Staff Regulations (lodging of a complaint within three months of notification of the contested decision (Article 90)) that object can in principle no longer be obtaining by means of proceedings brought in 1979. The view which immediately springs to mind is that any notice issued thereafter was simply a confirmatory measure which according to decisions of the Court (see for example the judgment on Joined Cases 33 and 75/79 Richard Kuhner v Commission [1980] ECR 1677) does not give rise to a right of action. That may be more readily said in so far as it was stressed in the decision on the complaint that the contested grading had already ceased to be open to challenge and only incidentally was it stated that the grading in 1974 was correct.

A different judgment would be possible only if after the original decision on grading there had arisen new facts leading to a change in the position in fact and law. In such a case there would be ground for the administration to review an earlier decision and if fresh administrative proceedings were then brought a decision thereon could not be regarded as purely confirmatory; it would rather be a new measure giving rise to a further time-limit for complaint and action. Authority for that is the judgment in Joined Cases 109/63 and 13/64 Charles Muller v Commission [1964] ECR 663 at p. 674, where it is stated that if important new facts arise the administration must reconsider a decision which would otherwise no longer be open to challenge, or the judgment in Case 59/65 Heinrich Schreckenberg v Commission of the EAEC [1966] ECR 543, where a similar view was taken.

There can obviously be no question of that in the present case. The applicant does not indeed claim in support of the action which he began in 1979 that fresh facts have arisen within the meaning of the decisions cited. He says only that he then for the first time discovered the legal criterion governing the decision on grading, which presupposes that it is a criterion which applied already in 1974 and had to be observed when the contested decision was taken. That circumstance cannot lead to the conclusion that when the administration reached a decision on the applicant's complaint it adopted a fresh measure which could again be challenged; indeed it was purely a confirmatory measure which did not start a fresh limitation period running because the factor put forward by the applicant involved nothing new for the administration.

At most an application made out of time might conceivably be allowed in the event of the subsequent discovery of a factor affecting the validity of a decision; on that the second paragraph of Article 42 of the Statute of the Court of Justice of the EEC provides:

But even that provision does not make the applicant's claim admissible. On principle it must be doubted whether complete or partial ignorance of the law (as in the applicant's case) is at all ground for allowing an application out of time. Reference may be made to corresponding provisions of national law (such as Article 60 of the German Verwaltungsgerichtsordnung [Rule of Procedure of the Administrative Courts]) according to which it depends on whether a time-limit is innocently disregarded and with regard to which it has been stressed that ignorance of the law may in principle not be pleaded (see the commentary on the Verwaltungsgerichtsordnung by Eyermann-Fröhler, note 11 on Article 60). The view may therefore be advanced (at least in the case of officials in certain grades which must surely include higher-ranking officials in the B Category) that they must see to it that they have in good time the necessary legal knowledge for. the review of their grading and if they fail to do so they cannot in support of a subsequent claim rely on the appointing authority's duty to have regard to the interests of officials in order to claim that they were not informed in sufficient detail of their legal position.

Further in the present case the applicant's ignorance, lasting even until 1979, of the criteria relevant to his grading can by no means be regarded as excusable to such an extent as to found a right to make an application out of time. In this regard it is not necessary to discuss the question whether in 1975 the applicant received a supplement to the Guide to Staff Reports together with a description of posts or whether, as he maintains, that was not so. It is more important, first, that the applicant received a copy of the Staff Regulations when he took up his employment. He was thus, through Article 5 thereof, referred to the existence of a description of posts; that would have been easy to obtain since it had been published in the autumn of 1973 in the Staff Courier available to every official. Further, as his first complaint shows, it is obvious that as soon as he took up employment the applicant had inquired into the niceties of the rights of the staff and had specifically concerned himself with the criteria for grading. Thus in principle it was open to him to consider all aspects of that question instead of confining himself to the grading within the career bracket; in any event he should not have postponed his consideration of the matter until 1979.

If therefore the applicant might no longer be allowed in 1979 to challenge the decision taken in 1974 in respect of his grading that means that not only the first claim is inadmissible but also the second. That is obvious because his claim for arrears of salary depends on a finding that the decision in respect of his grading was unlawful and such a finding is no longer possible. Nor can that result be avoided by attempting to classify the claim for arrears as a claim for compensation. In that respect it is significant that the claim contains no particular submissions alleging a wrongful act or omission and that the compensation sought is payment in arrear of the difference between the applicant's salary and the salary carried by Grade B 1. The facts clearly recall those in Case 59/65 Schreckenberg v Commission of the EAEC which I have already cited. It was argued there that in fact the applicant was not seeking compensation but simply a sum equal to the difference between the salary paid and that which he would have received in Grade A3; it was expressly held that in that way, namely by means of a claim for compensation, he might not circumvent the inadmissibility of an application concerning the same illegality and having the same financial end in view. Further, in this case it is necessary to have regard to Article 43 of the Statute of the Court of Justice of the EEC which provides that proceedings against the Community in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. Since the event giving rise to the damage, namely the allegedly incorrect grading of the applicant, is said to have taken place in 1974 and a complaint against it, in so far as grading in B 1 is concerned, was not made until December 1979, an objection that the action is barred by lapse of time would certainly succeed; the second claim would therefore in any event have to be rejected on that ground.

II — Substance

It is only for the sake of completeness that I deal with the question whether the application is well founded, a question which the Commission answered in the negative.

The appointment of the applicant which led to the now-contested grading followed, as provided in the Staff Regulations (Article 29), a competition, the particulars of which are laid down in Annex III to the Staff Regulations. That fact, which is obviously of crucial significance in a claim such as the present, is quite clear in so far as there is mention therein of appointment of Senior Administrative Assistants in Career Bracket B 3/B 2.

III — I therefore propose that in the first place the action should be dismissed as inadmissible or in the alternative as unfounded and that an order for costs be made pursuant to Article 70 of the Rules of Procedure.

1 Translated from the German.