Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. On 29 January 1982 Mr Becker, a member of the temporary staff in Grade A 5 employed since 1981 in the Commission's Informatics Engineering Division, wrote to the Director-General for Administration, Mr Morel, asking him to reconsider his status with a view to his possible establishment as an official in career bracket A 5/A 4. He stated that although he had been informed by the Personnel Department that temporary staff of his level were normally established in Grade A 6, in his case studies in economics had been followed by lengthy experience in the computer field (1969-75), after which he had been employed until 1981 by the Commission as an assistant to Mr Borschette and Mr Vouel, Members of the Commission. When he left Mr Vouel's Cabinet he had been promised that he would shortly be established in Grade A 5. Mr Becker concluded his letter by writing: in view of the foregoing ... and of the responsibilities that my present duties entail... I trust — even though in the last resort I would be prepared to accept the solution proposed ... — that you will be able to find a way of establishing me as an official in Grade A 5 under the existing rules.

2. The Commission raises, as a preliminary issue, an objection of inadmissibility; in its contention the action is essentially directed against the decision of 6 February 1984 by which Mr Becker was appointed as a probationary administrator in Grade A 6 and not in Grade A 5, as he had requested on several occasions. With regard to the date of that decision, the complaint made on 30 November 1984 was out of time, and the fact that the appointing authority had nevertheless considered a request made pursuant to Article 90 (1) cannot have the effect of ... reestablishing a right of action which is definitively time-barred (judgment of 12 July 1984 in Case 227/83 Moussis v Commission [1984] ECR 3133, paragraph 13).

3. I would point out to begin with that, according to the judgment of the Court of 30 May 1984 in Case 326/82 (Ascbermann and Others v Commission [1984] ECR 2253, paragraph 13), the appointing authority is not required, unless important new facts arise, to reconsider a decision which is no longer open to challenge. In the present instance there is no doubt that the measure at issue is the decision of 6 February 1984 and that Mr Becker did not challenge it in time. Consequently, the only remaining question is whether the circumstance on which the applicant relies in his reply is new and important in accordance with the requirements set out in the judgment cited above.

4. In the event that the Court does not accept my proposal, I consider that it should, in any event, declare the applicant's claims to be unfounded. The first claim is for the annulment of the decision rejecting his complaint on the ground that the decision does not contain an adequate statement of reasons: in other words, the appointing authority failed to explain why it rejected Mr Becker's request. Yet, to me, the appointing authority's reply was comprehensive: it states that the administration alone is responsible for the organization of its departments, which it must be able to determine and modify on the basis of its own objectives and that the fact that an official fulfils tasks on a level higher than his grade is not ... sufficient to warrant a review of his administrative position. It is hardly necessary to point out that that wording faithfully reflects the approach consistently adopted by the Court (judgment of 12 July 1973 in Case 28/72 Tontodonati v Commission [1973] ECR 779, paragraph 8; judgment of 14 July 1977 in Case 61/76 Geist v Commission [1977] ECR 1419, paragraph 38).

5. In the light of the foregoing I propose that the Court should declare the application brought by Mr J. V. Becker against the Commission of the European Communities to be inadmissible or, failing that, dismiss it, and, in accordance with Article 70 of the Rules of Procedure, order the parties to bear their own costs.

1 Translated from the Italian.