JUDGMENT OF 18. 6. 1981 — CASE 173/80 BLASIG v COMMISSION

In Case 173/80

THE COURT (First Chamber) composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility of the action

Substance

IV — Oral prodecure

Decision

Costs

I —. Facts and procedure

II —. Conclusions of the parties

1. Order the defendant to place the applicant in Grade B 1 in accordance with Articles 7 and 31 of the Staff Regulations of Officials of the European Communities, with retroactive effect from 1 October 1974;

2. Order the defendant to pay the applicant the difference between the salary actually paid and that which he would have received if he had been properly graded, together with interest at 8 % ;

3. Order the defendant to pay the costs.

1. Dismiss the action as inadmissible or alternatively as unfounded;

2. Order the applicant to pay the costs.

III —. Submissions and arguments of the parties

—. Responsible for working out programmes for electronic computers.

IV —. Oral prodecure

1. By application lodged at the Court Registry on 29 July 1980 Volker Blasig, an official of the Commission, brought an action for an order that the Commission place him in Grade B 1 with retroactive effect from 1 October 1974 and pay him the difference, with interest, between the salary actually paid and that which he would have received as an official in Grade B 1.

2. The applicant commenced his duties in 1974 after taking part in an open competition (Competition No COM/B/106) for the post of Senior Administrative Assistant in Grades 3 and 2 of Category B. In the competition notice the duties were described as those of an: Executive official who, on the basis of general instructions, carries out difficult and complex tasks, in particular the preparation and refinement of programmes for third-generation computers. As a result of the competition the Commission offered the applicant the post of Senior Administrative Assistant (Programmer) in Directorate-General IX as a probationary official in Grade B 3. The applicant accepted the offer and confirmed that he would take up his employment on 1 October 1974. The decision appointing the applicant, which was adopted on 18 October 1974, placed him as a Senior Administrative Assistant in the first step of Grade B 3.

3. On 6 December 1974 the applicant lodged a complaint against that decision alleging that in view of his experience with third-generation computers he ought to be placed in the first step of Grade B 2 or at least in the third step of Grade B 3. That complaint was rejected by a decision of the Commission of 2 June 1975 which was founded on the principle that the appointing authority appoints every successful applicant as a probationary official in the basic grade of the basic career bracket of his category.

4. At the end of his probationary period the applicant became an established official in his post with effect from 1 July 1975.

5. On 20 December 1979 the applicant lodged a further complaint and sought to be placed in Grade B 1. By a letter dated 24 April 1980 Mr Tugendhat, a member of the Commission, informed the applicant that the Commission had rejected the complaint on the ground that the placing in the first step of Grade B 3 had become unassailable after the expiry of the period for bringing an action pursuant to the rejection of the complaint made against that grading in 1974. Further, the contested grading was in fact justified in view of the nature of the competition on the basis of which the applicant had been engaged. The present action is essentially directed against that decision to reject the complaint.

6. The Commission submits that the action was brought after the expiry of the period laid down in Article 91 (3) of the Staff Regulations and is therefore inadmissible.

7. The applicant, who maintains that the duties which he performs are those of a Programmer and not of a Senior Administrative Assistant and that they therefore correspond to a post in Grade B 1, makes two submissions to show that his application is not time-barred. In the first place, the purpose of the complaint of 1979 was different from the purpose of the complaint made in 1974 which sought only a higher grading in the same Career Bracket (B 3/B 2); the Commission's decision rejecting the complaint of 1979 should in those circumstances not be regarded as being of a confirmatory nature. Secondly, the unlawfulness of his being placed in a grade other than B 1 became apparent to him only in October 1979 after he received the Guide to Staff Reports compiled by the Commission pursuant to Article 43 of the Staff Regulations; it included in the descriptive table of basic posts a reference to Programmer in the column relating to Grade B 1 and a reference to Assistant Programmer in the column relating to Grades B 2 and B 3.

8. It is relevant to observe first of all that the measure adversely affecting the applicant which is the subject of the action is the appointing authority's decision of 18 October 1974 placing him in Grade B 3. Since the Commission rejected a complaint which was lodged against that decision within the requisite period it was not required, unless important new facts arose, to consider a fresh complaint against the same decision.

9. The first submission must therefore be rejected and it is necessary to consider whether the circumstances cited in the second submission may be regarded as a new act capable of starting the period of limitation to run afresh.

10. The Commission observes in that regard that the description of duties relating to posts in Category B given in the 1979 Guide to Staff Reports is identical to that contained in the 1973 Guide to Staff Reports. The latter was published in the 1973 Staff Courier (No 272 of 4 September 1973) and was available to all interested officials as from the date of its publication.

11. The applicant does not deny that the description of the basic posts had already been published in 1973. He points out however that at that time he had not yet taken up employment with the Commission. In his view he was not bound to check the content of publications, issued prior to his taking up employment, which might concern him. It is for the appointing authority to supply officials with all publications relative to the correspondence between their duties and their grade; the applicant however was not notified of the Guide to Staff Reports until he received a note from the Commission dated 9 October 1979.

12. The essence of the applicant's argument, therefore, is to submit that the fact that the existence and application of the description of the basic posts annexed to the Guide to Staff Reports came to his attention constitutes a new fact capable of starting the period of limitation to run afresh.

13. That argument cannot be accepted. The purpose of the Guide to Staff Reports is to provide guide-lines for senior officials responsible for preparing periodic reports pursuant to Article 43 of the Staff Regulations. It is published in order to inform the officials concerned of the criteria applicable under that procedure. Accordingly, the description of the basic posts which it contains does not entitle the staff to demand appointment in a given grade or a fortiori to require, after appointment in a given grade, a higher grade outside the normal promotion procedure.

14. Accordingly, the application is inadmissible in so far as it asks for the applicant to be placed in Grade B 1. It follows that the application for payment of the difference between the salary actually received and that payable on the applicant's re-grading must fail.

15. The action must therefore be dismissed as inadmissible in its entirety.

16. According to Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 thereof the costs incurred by the institutions in actions by servants of the Communities are to be borne by the institutions.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application as inadmissible;

2 Orders the parties to bear their own costs.