C-22/60
ECLI:EU:C:1961:17
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JUDGMENT OF THE COURT 13 JULY 1961 1
Raymond Elz v High Authority of the European Coal and Steel Community
Joined Cases 22 and 23/60
Summary Procedure — Action by an official for failure to act — Previous formal notice to the ad ministration — Form
A request by an official to the administra period for lodging an application, cannot be tion not containing any formal request or regarded as notice capable of constituting indicating an intention to pursue the matter the preliminary procedural formality in an and which does not show sufficiently clearly action for failure to act. that it constitutes the beginning of the
In Joined Cases 22 and 23/60
Raymond Elz , an official of the High Authority of the European Coal and Steel Community, residing at 169, rue de Soleuvre, Differdange, Grand Duchy of Lux embourg, assisted by Pierre Chareyre, Advocate at the Conseil d'Etat and the French Cour de Cassation, with an address for service at the Chambers of Georges Margue, Advocate of Luxembourg,
applicant,
v
High Authority of the European Coal and Steel Community , represented by its Legal Advisor, Raymond Baeyens, acting as Agent, with an address for service in Luxembourg at its seat, 2 place de Metz, Luxembourg,
defendant,
Application
(a) for the annulment of an implied decision of refusal by the High Authority in respect of a letter from the applicant concerning his position in the service;
(b) for an order that the High Authority pay the applicant a differential allowance by virtue of a temporary posting;
1 - Language of the Case: French.
JUDGMENT OF 13. 7. 1961—JOINED CASES 22 AND 23/60
THE COURT (Second Chamber)
composed of: Ch. L. Hammes, President, J. Rueff (Rapporteur) and R. Rossi, Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts By letter of 5 May 1959 to the President of the High Authority the applicant repeated The facts of the action may be summarized his request to be regraded in a higher grade. as follows: As he received no reply to this letter he On 9 April 1954 the applicant was ap lodged an application before the Court of pointed for three months on a temporary Justice of the European Communities on 15 basis as a 'comptable analyste' (book-keeper July 1959. engaged in statistical work) with the High By judgment given on 4 April 1960 the Authority. This posting was subsequently Court (Second Chamber) declared the ap prolonged on two occasions. plication inadmissible in that it was out of When the Staff Regulations of Officials of time.
the Community came into force a letter By notice dated 15 June 1960 members of from the President of the High Authority staff were informed that the post of Prin dated 9 July 1956 offered the applicant ad cipal Administrative Assistant, cor mission to the Staff Regulations as an es responding to career bracklet 7-6 in tablished official in the third step of Grade 9 Category B at the Directorate for in Category B, with effect from 1 July 1956. Withdrawals, Budget and Internal Control By letter of 2 August 1956 the applicant in at the Directorate-General for Administra formed the President of the High Authority tion and Finance, was vacant. Candidates that his clasification in Grade 9 did not cor eligible for appointment to this post by respond to the post for which he had been means of transfer or promotion under Arti engaged and requested to be regraded on the cle 28 (2), 1 and 2 of the Staff Regulations, basis of a fresh examination of his position. that is, who were in Grades 7 or 6 or had However, on 25 September 1956, he ac been in Grade 8 since 1 July 1958, were cepted the offer made by the President of given until 23 June in which to submit their the High Authority, while continuing to applications. press his claim. In addition, on 5 October The applicant, who was classified in Grade 1956, he signed a statement in which he ac 9, was unable to submit an application. cepted the offer contained in the letter from A staff note of 19 July 1960 published new the President of the High Authority of 9 detailed lists of posts which came into force July 1956. He sought, however, to delete on 1 July. Officials classified either in one of therefrom the word 'unconditionally'. the grades in the career bracket cor
ELZ v HIGH AUTHORI TY
responding to a vacant post or in the grade be taken into account, together with their immediately below the lowest grade in that annual reports. career bracket were invited in accordance The failure to make the annual report with Article 28 of the Staff Regulations to provided for in Article 37 of the Staff submit applications to the Directorate for Regulations is bound to affect adversely Personnel before 10 August 1960 for assign those officials who have been in the service ment to the vacant posts by transfer or of the High Authority since 1 July 1956 and promotion. could have been eligible for promotion in On 2 August 1960 the Director-General for July 1958, which would then have enabled Administration and Finance informed the them to apply for Vacant Post No 215 by applicant that his name appeared on the way of promotion under Article 28 of the promotion list for promotion from Grade 9 Staff Regulations. to Grade 8 with effect from 1 January 1961. I am sorry to have had to draw your atten On 9 August 1960 the applicant sent the fol tion to these irregularities which are damag lowing registered letter to the Director- ing to my career and I am sure that you will General for Administration and Finance: readily acknowledge that my complaints are 'I refer to the publication of the new justified'. detailed list of posts and to the Staff Note of As he received no reply to this letter, the ap 19 July 1960 (Doc. No. 4734-60 f). plicant lodged the present applications on 8 I wish to apply for Vacant Post No. 215, November 1960.
that of Principal Administrative Assistant in On 14 November 1960 Notice of Competi the Accounts Department, which corres tion HA/141/B was published in the Official ponds to Grades 7 and 6 in Category B and Journal of the European Communities con which I have occupied temporarily for some cerning the recruitment of a Principal Ad years. Until now I have not received the dif ministrative Assistant in the General Ac ferential allowance provided for in Article counts Branch of the Directorate for
26 of the Staff Regulations. According to Withdrawals, Budget and Internal Control this article a temporary posting can only at the Directorate-General for Administra last for one year. tion and Finance. The post of Principal Administrative Assis Applications had to reach the High tant has already been declared vacant by Authority by 14 December 1960 at the Staff Notice No. 3 of 15 June 1960, with a latest (although the time-limit for the sub description of the duties to be performed mission of documentary evidence relating to which correspond exactly to those which I qualifications or diplomas which were neces have performed for some years. I have con sary or desirable was fixed at 3 January cluded from this that I am entitled to the 1961). differential allowance for this period. On 28 November 1960, in a letter addressed I was unable to apply for this post since, in to the President of the High Authority, the order to be eligible under the provisions of applicant requested that the holding of this Article 28 (2), 1, I should have been in competition be postponed until the Court of Grade 8 since, at the latest, 1 July 1958. Justice had given judgment on his applica From the point of view of Article 28 of the tions, 'the outcome of which is likely to in Staff Regulations which deals with appoint fluence the conditions under which the va ments to posts, my position in the service is cant post might be filled'. irregular in that the administration has so By letter of 8 December 1960 the President far failed to make the annual report to of the High Authority refused to agree to which each servant is entitled under Article this request and informed the applicant that 37 of the Staff Regulations. Article 3 of An his position in the service, and in particular nex IV of the Staff Regulations expressly his classification, did not prevent him sub states that the comparative merits of those mitting an application. servants who are eligible for promotion shall The applicant did not reply to this letter.
JUDGMENT OF 13. 7. 1961-JOINED CASES 22 AND 23/60
Since 1 January 1961 the applicant has tablishment of the exact nature of his duties received a salary corresponding to Grade 8. and the existence of a proper file containing the annual report made by his superiors. He therefore has an interest in bringing the II — Conclusions of the parties proceedings. The applicant claims that the Court should: In addition, the applicant maintains that (a) In Case 22/60, annul the implied deci the failure of the High Authority to reply sion of refusal resulting from the failure within two months to his registered letter of of the Director-General for Administra 9 August 1960 constitutes an implied deci tion and Finance of the High Authority sion of refusal which adversely affects him. to answer his request of 9 August 1960 The defendant puts forward the following for his personal file to be completed by five arguments: the addition of the annual report The applicant has no direct and definite in provided for in Article 37 of the Staff terest. He is seeking promotion to the post of Regulations and for the rights and Principal Administrative Assistant for privileges attaching to a temporary which he is not eligible under the Staff posting under the terms of Article 26 of Regulations.
Secondly, he refuses to take the Staff Regulations to be part in the competition, which makes it im acknowledged; possible for the appointing authority lawful (b) In Case 23/60, order the High ly to take his application into consideration Authority to pay the differential al for the post in question. lowance corresponding to the difference The applicant cannot show that he has suf between Grade 7 and Grade 9 for the fered any special damage. First, the absence whole of the period during which he has of an annual report has no causal performed temporarily the duties of relationship with the unfavourable career Principal Administrative Assistant to development of which he claims he is a vic the Head of the General Accounts tim, since the situation complained of ap Department of the Directorate-General plies to all the servants of the High for Administration and Finance, as well Authority and there is no evidence that his as the interest payable on the principal annual report would have been favourable. sum which is not yet settled; Furthermore, the applicant was in fact put (c) In both cases, order the High Authority on the promotion list for Grade 8 on 27 July to bear all the costs. 1960 and his promotion became effective on The defendant contends that the Court 1 January 1961 (he had already been in should dismiss both applications as inadmis formed of it on 2 August 1960).
Finally, the sible and, in the alternative, as unfounded applicant should have complained of the with all the legal consequences, in particular absence of the annual report for 1957 in as regards payment of the costs. 1958, so as to enable the High Authority to take the necessary action in his case. It an implied decision of refusal exists the III — Submissions and arguments scope of the proceedings before the court of the parties must be determined by the content of the formal notice.
In his letter dated 9 August The submissions and arguments of the par 1960 the applicant applies for the vacant ties may be summarized as follows: post in question and, so as to justify the con sideration of his application, which did not A - Case 22/60 fulfil the requirements laid down in Article 28 of the Staff Regulations, he considers it Admissibility necessary to draw attention to the ir The applicant maintains that the develop regularities which are adversely affecting ment of his career is dependant upon the es his career in that they prevented him from
ELZ v HIGH AUTHORITY
applying for the vacant post by way of new arguments as compared to the contents promotion. On the other hand, the applica of the letter of 9 August 1960. It is therefore tion seeks the annulment of the implied possible to bring an action. refusal by the High Authority of a com However complex the measures involved in plaint which seeks, first, the completion of the reorganization of the services of the his personal file by the addition of the an High Authority the application had to be nual report and, secondly, an acknowledge lodged without delay on penalty of being ment that the applicant was entitled to the time-barred. The precedent set by Case rights attaching to a temporary posting. The 34/59 could only encourage the applicant to submissions contained in the preliminary re take immediate action.
quest have become the subject-matter of the Article 28 of the Staff Regulations es action for failure to act and, as a result, the tablishes unequivocally the principle that in subject-matter of the application is not the ternal recruitment takes priority over com same as that of the request: it is impossible petitions. The applicant, who has occupied to bring an action. On this point the defen the vacant post for some years as a tem dant refers to the judgment of 22 March porary posting, is seeking direct promotion 1961 in Joined Cases 42 and 49/59, Société on the basis of his ability and the nature of Nouvelle des Usines de Pontlieue-Aciéries du
the duties which he was actually perform Temple (SNUPAT) v High Authority (Rec. ing. Had the applicant followed the advice 1961, Vol. VII, p. 105 et seq.). of the President of the High Authority and The letter of 9 August 1960 cannot be submitted his application, this would have regarded as formal notice, served in due been interpreted as a waiver of the right to form, since it had to be interpreted by the assert the claim to the priority given to administration within the context of the staff internal recruitment by Article 28. note of 19 July 1960, to which it expressly The High Authority puts forward an argu refers. The importance and complexity of ment based on its own failure to act.
It stres the measures referred to in this note neces ses that the absence of an annual report is sarily prevented the rapid adoption of in common to all the staff and observes that dividual decisions brought about by the any annual report would not necessarily reorganization of the services of the High have been favourable to the applicant. In Authority. Thus, there can be no question of fact, by deciding on 27 July 1960 to any failure to act. promote the applicant the administration is The application is in fact intended to revive acknowledging his ability which, it may an earlier dispute concerning the classifica reasonably be thought, could have justified tion of the applicant; that application had the promotion he is seeking to the post of been dismissed as out of time by a judgment Principal Administrative Assistant. of the Court of Justice given between the In its rejoinder, the defendant adds further same parties on 4 April 1960. The force of details to its arguments and emphasizes that res judicata prevents that question being the argument which the applicant bases on
reopened. Article 28 of the Staff Regulations of Of The applicant replies that: ficials does not apply in this instance, since The letter of 9 August 1960 constitutes on candidates for appointment by way of its part an appeal through official channels promotion must show that they have the and sets out his eligibility to occupy the post minimum seniority provided for in Article of Principal Administrative Assistant which 39 (1) of the Staff Regulations and Article 2 had been declared vacant and to receive the of Annex IV. Moreover, the applicant was differential allowance provided for by Arti promoted within the context of his present cle 26 of the Staff Regulations in respect of duties. It is acknowledged that the work done the preceding period. The absence of any by Mr Elz at his present level is good but his annual report is expressly pointed out in this promotion does not imply recognition of an
letter. The application therefore contains no ability to hold a post at a higher level.
JUDGMENT OF 13. 7. 1961 — JOINED CASES 22 AND 23/60
Substance sess a temporary posting nor, in particular, to promote him to the corresponding level. In his application the applicant maintains Finally, it points out that the situation of that, as a result of the failure to act on the which the applicant complains is the same part of the administration of the High Authority, it is impossible for him to be for all servants of the High Authority and promoted to Principal Administrative Assis that the delay in drawing up and applying a system of reports which complies with Arti tant in the Accounts Department. In his rep cle 37 of the Staff Regulations is the result ly he restates his right to be appointed to this post by way of promotion, without the of concern for good administration. need to undergo the competition procedure. B — Case 23/60 He maintains that, according to the descrip tion in the vacancy notice, the post in ques Admissibility tion corresponds exactly to that which he has held for some years as a temporary The applicant refers to his arguments con posting which has been improperly extended cerning the admissibility of his application for more than one year without his receiving for annulment, Application No 22/60. the differential allowance provided for un The defendant claims that the application der Article 26 of the Staff Regulations. cannot be admitted in so far as it attempts He complains that the High Authority to revive the dispute concerning the appli violated th provisions of Article 37 of the cant's classification, which was held to be Staff Regulations of Officials by failing to time-barred in the judgment of the Court of make the annual report on him which Justice of 4 April 1960. should have been drawn up with regard to every official. He maintains that for this Substance reason he was unable to receive the promo tion in July 1958 which would have enabled The applicant states that, although he is him, after further promotion, to occupy the classified in Grade 9, he has for several vacant post. years performed duties corresponding to The defendant replies that the post of Prin those carried out by servants in Grades 6 cipal Administrative Assistant which forms and 7.
the subject of Notice of Open Competition He considers this to be shown by the No HA/141/B and corresponds to a career description of the vacant post contained in bracket comprising Grades 7 and 6 in the Staff Notice of 15 June 1960 which cor Category B, is a regraded post of accounting responds exactly to the duties he has per officer to which the duties performed by the formed over a long period. He maintains applicant do not correspond. that, as he is a book-keepr engaged in As, therefore, the applicant has never been statistical work and not merely an assistant called upon to occupy a post on a temporary accounting officer, his duties are those of an basis at a level which corresponds to a assistant to the head of branch and, higher grade than his present grade, the therefore, of a principal administrative as defendant maintains that it was under no sistant responsible for reviewing and coor obligation to award him the differential al dinating the accounting. Thus, he in fact oc lowance provided for in Article 26 of the cupied on a temporary basis a post in Grade Staff Regulations and, a fortiori to 7 and therefore should have received the dif regularize, under paragraph 3 of that arti ferential allowance provided for in Article cle, a temporary posting lasting more than 26 of the Staff Regulations from the third one year. month of that temporary posting. As regards the absence of an annual report The applicant maintains that the objection in the applicant's personal file the High cannot be made that he was not officially in Authority observes that such a report could structed to hold the temporary posting by a not have compelled the administration to as proper administrative decision. It is suf
ELZ v HIGH AUTHORITY
ficient to consider the facts to acknowledge, The defendant replies, first, that there can on the basis of the provision in the Staff be no question of the post being occupied ad Regulations which is intended to ensure that interim since it was not vacant; it was in servants receive the remuneration which is fact held by another official until 10 in accordance with the responsibilities and February 1960. tasks conferred upon them, that he has in Secondly, it rejects the applicant's assertion fact held a temporary posting. that Article 26 of the Staff Regulations re He therefore considers himself justified in quires no formal decision to entitle the of requesting the High Authority to pay him a ficials concerned to the differential al differential allowance corresponding to the lowance.
difference in salary between Grade 9 and The defendant maintains that the applicant Grade 7 for the whold period during which has never had the responsibilities which he he performed, on a temporary basis, the claims to have had. There can therefore be duties of principal administrative assistant no question of paying any differential al to the Head of the General Accounts lowance.
Department of the Directorate-General for Administration and Finance of the High Authority. In an appendix to Application No IV — Procedure
23/60 the applicant maintains that he has carried out ad interim the duties involved in After the joinder of the cases the procedure the post in question since 2 December 1957. followed the normal course.
Grounds of judgment
I — The application for annulment in Case 22/60
Admis sib ility
The application seeks the annulment of an implied decision by which the High Authority, it is claimed, violated the rules of law stemming from the Staff Regula tions of Officials of the European Coal and Steel Community and refused to uphold certain claims made by the applicant.
It is therefore appropriate to consider, first, whether the conditions for an action for failure to act are fulfilled in this instance.
In this respect the defendant raises a preliminary objection of inadmissibility on the ground that it has not been served formal notice to take the decisions the absence of which is criticized by the applicant and that, therefore, there is no question of a failure to act.
By letter dated 9 August 1960 addressed to the Director-General for Administration and Finance of the High Authority the applicant submitted certain complaints to the defendant concerning his position in the service.
JUDGMENT OF 13. 7. 1961—JOINED CASES 22 AND 23/60
This letter in fact constitutes an appeal through official channels in which the ap plicant asks the defendant to review his position.
Moreover, the applicant himself described it as such in his reply.
Although it is for the court to classify legal measures according to their nature rather than according to their form and although, in the stage of an action for failure to act, there is no need to show excessive severity towards an official as regards compliance with the necessary formalities, the fact remains that the letter of 9 August 1960 does not contain any formal request or indicate an intention to pursue the matter and it does not show sufficiently clearly that it constitutes the beginning of the period for lodging an application.
It cannot therefore be regarded as formal notice intended to encourage the defen dant to take a preliminary express or implied decision which may be challenged in proceedings before the Court.
If, by this letter, the applicant had intended to close the administrative stage of an action for failure to act he would not have failed to tell the defendant so clearly, as he had done in his earlier application (Case 34/59) in a letter dated 5 May 1959.
Even if the failure of the High Authority to reply to this letter in good time is scarcely in accordance with the diligence required of a conscientious administration it cannot be regarded as an implied decision of refusal which is capable of forming the subject-matter of an action for failure to act.
The application for annulment in Case 22/60 is therefore inadmissible.
II — T he application for compensation in Case 23/60
A — Admissibility
The application seeks an order that the High Authority pay to the applicant the differential allowance corresponding to the difference between Grade 7 and Grade 9 for the whole period during which he performed as a temporary posting the duties of Principal Administrative Assistant to the Head of the General Accounts Department of the Directorate-General for Administration and Finance.
It is First necessary to consider whether this application has not been brought in spite of the force of res judicata of Case 34/59, which concerned the same parties and was settled by the judgment of the Court (Second Chamber) of 4 April 1960.
ELZ v HIGH AUTHORITY
It appears from reading the conclusions of the applicant that the subject-matter of the application in Case 34/59 is essentially different from that of Case 23/60. The application in Case 34/59 was for the regrading of the applicant while the applica tion in Case 23/60 is for the payment of a differential allowance by way of remuneration for a temporary posting.
The force of res judicata is therefore no bar to the admissibility of this application.
The applicant's interest in bringing proceedings is material and may be assessed in monetary terms.
That interest of the applicant in bringing proceedings must therefore be acknowleged.
The application for compensation in Case 23/60 is therefore admissible.
B — Substance
The applicant maintains that he is entitled to the payment of a differential al lowance under Article 26 of the Staff Regulations of the European Coal and Steel Community on the ground that since 2 December 1957 he has performed ad in terim the duties involved in the post of Principal Administrative Assistant in the Ac counts Department.
The duties of principal administrative assistant are described as follows in the Staff Notice of 15 June 1960:
'Assisting the Head of the General Accounts Department in the performance of all the work of the department. In particular, he will be responsible for:
Ensuring the coordination of the work of accounting and verifying that it is car ried out properly and within the required time-limits;
Checking that expenditure has been charged to the correct accounts and items of the budget;
Analysing and preparing written justification of account balances.'
A memorandum dated 15 September 1958 from the Director of the Directorate for Budget and Internal Control of the High Authority, which appears in the appli cant's personal file, shows his duties to be as follows:
'Ledger posting and checking that items of expenditure shown in statements provided each month by the seven offices at present established outside Luxem bourg are posted to the correct accounts;
JUDGMENT OF 13. 7. 1961 — J0INED) CASKS 22 AND 23/60
Checking the posting of items of expenditure by the other officials of the branch (work shared with the Head of the Accounts Department);
Explanation of account balances, in particular, of current accounts;
Preparation of statistics and summary tables;
Finally, assistance in drawing up the balance sheet and in preparing the necessary explanatory documents.'
Even if they could possibly have justified regrading, a question which the Court is not required to settle within the context of this application, the duties of the appli cant so defined do not correspond to those of a Principal Administrative Assistant.
In particular, it does not appear that the applicant was responsible for assisting the head of department in the performance of all the tasks of the department.
There is also no evidence that he was responsible for ensuring the proper coordina tion of all the work of accounting and of verifying that it was carried out properly and within the required time-limit.
The applicant has not shown sufficiently in law or offered to bring evidence that he in fact performed the duties of principal administrative
In these circumstances he cannot claim that he had occupied the post in question as a temporary posting.
The application is therefore unfounded.
Ill-Costs
The applicant has been unsuccessful in his two applications.
He must therefore be ordered to pay the costs.
Under the terms of Article 70 of the Rules of Procedure of the Court, the High Authority shall bear the costs which it has incurred.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties;
ELZ v HIGH AUTHORITY
Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of Justice of the European Coal and Steel Community; Having regard to the Staff Regulations of Officials of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT (Second Chamber)
hereby:
1. Dismisses Applications 22/60 and 23/60;
2. Orders the applicant to pay the costs; the costs incurred by the defendant shall be borne by that institution.
Hammes Rueff Rossi
Delivered in open court in Luxembourg on 13 July 1961.
A. Van Houtte Ch. L. Hammes
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 21 JUNE 1961'
Mr President, nected, so I may deal with them both in a Members of the Court, common opinion. The applicant himself and the development The applicant, an official of the High of his career with the High Authority are Authority of the European Coal and Steel known to the Court from an earlier case
Community, has submitted two applications (Case 34/59) in which he had unsuccessful to the Court for the purpose of settling his ly sought a regrading in the salary scale on position in the service. His applications in the basis of his duties in the service. volve an action for failure to act, which con The present applications arise out of an stitutes his reaction to the fact that no reply amendment made to the administrative
was given to a request made by him, and a organization of the High Authority, which claim for compensation in relation to was linked to a change in the detailed list of another posting. The Court has joined the posts. This amendment was adopted on 25 two applications as they are so closely con May 1960 and came into force on 1 July
1 — Translated from the German.