C-79/63
ECLI:EU:C:1964:39
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JUDGMENT OF 9.6.1964 — JOINED CASES 79 AND 82/63
In Joined Cases 79 and 82/63
Jean REYNIER and PIERO Erba , officials of the Commission of the European Economic Community, represented by Marcel Slusny, Advocate of the
Cour d'Appel, Brussels, and Head of Department at the University of
Brussels, with an address for service in Luxembourg at the Chambers of E. Arendt, avocat-avoué 6 rue Willy-Goergen,
applicants,
v
Commission of the European Economic Community , represented by its Legal Adviser, Louis de la Fontaine, acting as Agent, with an address for
service in Luxembourg at the offices of Henri Manzanarès, Secretary of the
Legal Department of the European Executives, 2 place de Metz,
defendant,
1. Application for:
—
annulment of the establishment of the applicants in Grade A 4 and the refusal by the Commission of 21 May 1963 to grant their request to be reclassified in Grade A 3;
—
an order that the Commission must classify the applicants in Grade A 3;
—
an order that the European Economic Community pay the costs of the ap licaton;
2. Subsidiary application for an order against the European Economic Community for the repayment of damages to the applicants,
THE COURT (Second Chamber)
composed of: Ch. L. Hammes, President, R. Rossi and R. Lecourt (Rappor
teur), Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
REYNIER v COMMISSION
JUDGMENT
Issues of fact and of law
I — Facts 21 January 1963 in Grade A 4, Step 2. On 15 February 1963 he formally Mr Jean Reynier was engaged by the acknowledged receipt of the communi
Commission of the European Economic cation appointing resigned him and
Community by a letter of 18 March 1959 from his 'Brussels contract', reserving to and commenced duties under a so-called himself, however, the benefit of 'all 'Brussels 1 April 1959, contract'
on rights vested or continuing to exist after attached to the Joint Statistical Office the entry into force of the new contract'.
of the European Communities. He was On 4 April 1963 he wrote to the Com
at the time placed in Grade A 6, Step 1. mission through the official channels
He was appointed to Grade A 5, Step 2 requesting, in accordance with Article on 1 1960, and to Step 3 of the March 90 of the Staff Regulations, that his same grade on 1 April 1961. Then, with position within the administration be effect from 1 December 1961, he was regularized by appointing him to Grade reclassified in Grade A 4, Step 2, and A 3 with effect from 1 January 1962, and appointed Head of the Associated Over his letter was supported by a note dated seas Countries Statistics Division by a 24 May 1963 from Mr R. Dumas, Decision of the Commission of 22 Decem signed on behalf of the Director-General ber 1961. On 21 January 1963 he was of the Statistical Office, drawing atten
established as an official in Grade A 4, tion to the table of basic posts and
Step 2. On 2 April 1963 he wrote to the corresponding career brackets which Commission through the official chan appears in Annex I to the Staff Regula
nels requesting, in accordance with tions.
Article 90 of the Staff Regulations, that By letter of 21 May 1963 the President his position within the administration be of the Commission informed Messrs regularized by appointing him to Grade Reynier and Erba that the Commission A 3 with effect from 1 Tanuarv 1962. was as yet not in a position to give a
Mr Piero Erba was engaged by the decision on their request since 'the Commission of the European Economic problems arising from Article 102 and
Community by a letter of 9 December the table of basic posts and corres
1959 and commenced duties under a ponding career brackets have yet to be so called 'Brussels contract'
on 1 Feb studiedin full'.
ruary 1960, attached to the Joint Stati Messrs Reynier and Erba then com
stical Office of the European Com menced legal proceedings in the Court munities. He was at the time placed in of Justice of the European Communities Grade A 5, Step 2. in Cases 79 and 82/63, lodged at the
A letter of 14 December 1960 informed Registry on 29 July 1963. him that the Commission had appointed him to Grade A 4, Step 1. He was made II — Conclusions of the parties
Head of Division for 'Banking and Accounts' Financial within the depart The applicants claim that the Court ment of General Statistics by a Decision should:
of 3 May 1961 without altering his 1. Declare their appointments null
grade, and was informed of this in a and void in so far as these establish letter dated 26 1961. in Grade A May them 4;
He was established as an official on 2. Declare null and void the refusal
JUDGMENT OF 9.6.1964 — JOINED CASES 79 AND 82/63
of the Commission of 21 May 1963 III — Submissions and argu
to grant their request for reclassi ments of the parties
fication ; 3. Rule that the Commission must A — The Commission named as defendant place the applicants in Grade A 3; 4. As a subsidiary point: The applicants have named as defendant Order the European Economic in the application both the European Community and if necessary the Economic Community or, alternatively, Commission to pay the applicants the Commission of the Community, on damages of 1 franc, to be made up the basis of Article 91 of the Staff to the proper sum during the course Regulations. Since these Regulations of the proceedings; were drawn up by the Councils it would 5. Hold that the European Economic be useful to know the contents of the
Community and if necessary the unpublished minutes of the Council Commission must bear the costs of relating to their adoption. Secondly, the action in full: since the Commission has argued in its 6. Place on record the fact that the defence the Council's refusal to grant
ap licants: its budgetary requests it would be
(a) reserve the right to raise any desirable for the Council, if it does not fresh issues of fact or of law intervene, at least to produce all the fol documents which may be necessary necessary explanations and
lowing the statement by the at the request of the Court under
other party of its defence, and Article 21 of its Statute. docu believe for the right to produce They that it is necessary ments, if need be; them to name the Community as a
(b) offer to by any means prove party by virtue of Article 210 of the open to them in law, including Treaty and because of their subsidiary evidence by witnesses, the facts claim, the more so since the Commission alleged by them but not yet claims in its defence force majeure as a
proved in writing, should those result of the Council's attitude. facts be contested by the other T he defendant replies that naming the
party.' European Economic Community as a
In their reply, the applicants supple defendant is an unnecessary precaution mented their initial conclusions by in view of the case-law of the Court, and further subsidiary conclusions request emphasizes the fact that the Council of ing that the Court should: Ministers is neither a party to the
Order the Council of Ministers to proceedings, nor has it intervened in furnish such explanations and to them.
produce such documents as the Court considers desirable in order that it B — Principal request diffi may be fully informed of the
culties alleged by the defendant; T he applicants plead the tour grounds
Order the Commission to produce all provided for in Article 173 and the
the necessary documents relating to principle that vested rights must be it.' the difficulties alleged by respected, and ask that their appoint
The defendant contends that the Court ment to Grade A 4, Step 2, be annulled.
should: They consider that according to Article 'Declare the applications unfounded 102 of the Staff Regulations, they should and make an order as to costs in have been established in the grade and
accordance with the relevant pro step expressly or impliedly accorded
before became visions.'
them subject to they
REYNIER v COMMISSION
the Regulations. have been infringed. They recall that in T hey claim that their duties were those arguing on the basis of their position
of Heads of Division and support this by prior to the Staff Regulations (no
quoting a number of documents in breach of continuity) they were not
which the Commission recognized this. thereby claiming any right except to
The defendant replies that these grounds the extent that Article 102 takes such a
are not pleaded with sufficient clarity. position into account. It points out that the applicants, having T hey reject the distinction to which the
been accorded Grade A 4, defendant has recourse between grades expressly cannot claim that a higher grade was assigned expressly and by implication, a accorded them by implication, irres distinction which can be disputed both pective of the duties exercised by them on the facts (position of officials estab
during the period prior to the Staff lished under a Brussels contract) and on
Regulations or after their entry into the law (the correct interpretation of
force. Article 102). It is of the opinion that the performance As to the two conditions which the
of duties recognized as those of Head of defendant claims must be satisfied before Division during the period prior to the the applicants can be accorded Grade Staff Regulations could lead to the A 3, the applicants stress that the first applicants being given a different grade, condition, that of recognition of the
if two conditions were fulfilled, namely administrative units directed by them
that the Commission recognizes the as being divisions, has never been administrative units controlled by them applied and is contradicted by a number as being divisions within the meaning of events and documents, particularly of and subject to the Regulations, and the request for A 3 posts to be allowed that it has a Grade A 3 post at its dis for in the 1962 budget. posal under the budget. But the Council The second condition — that a vacant
of Ministers, it goes on to explain, has A 3 post should be available —
is, refused its request for the supplement to according applicants, wrong in to the
be made to the budget for the financial fact and in law. In law, if the Council year 1962 which would have allowed has not intervened in the present pro
some A 4 posts occupied by officials ceedings its refusal cannot be taken into Division' known as 'Heads of during the consideration when there is a question
period prior to the Staff Regulations to of the observance of the Regulations. If be converted into A 3 posts. It also the Court were to give judgment against
explains that it did request within the the Commission, the inevitable result
terms of the 1964 budget that two A 4 would be that the Council would be posts in the Statistical Office be con compelled to grant the budgetary credits into A 3 posts, thus for effect to be verted enabling the necessary given to the applicants' position to be regularized. Court's decision. It is therefore compelled to ask the As to the facts, there is at least one A 3 Court to dismiss the principal applica post available in the Statistical Office, tion. and several similar posts in the joint The applicants reply that their argu services, as shown by the vacancy ments are sufficiently precise for the notices.
defendant to have grasped them, and The applicants also state that the bud
they invoke in this connexion Articles gets allowed to the Commission are
38 (1) and 42 (2) of the Rules of Pro expressed in aggregate figures, and
cedure. credits are not allocated by reference
They stress that, in their view, Article to administrative units. This is in keep 102 and Annex I of the Regulations ing with the fact that officials are
JUDGMENT OF 9.6.1964 — JOINED CASES 79 AND 82/63
established in a grade, and not in a and publications', the subject of a
particular post. vacancy notice challenged by the appli
T he applicants draw attention to the cants in Cases 98 and 99/63.
vagueness and the hypothetical nature It also emphasizes that the staff of the
of the difficulties referred to by the Statistical Office authorized for 1963 by Commission. the budget has been precisely estab
Lastly, they state that even if the lished and that the number of A 3 posts Council decides to agree to the creation in it cannot be increased. of two new A 3 posts which would be given to the applicants, the latter would C —
Subsidiary application still suffer financial damage and their
careers would be retarded since the new The applicants seek compensation for budget only comes into effect on 1 Janu material and non-material damage ary 1964. caused by the Commission's delay, con
The defendant replies that the applicants stituting a wrongful omission in ('faute'),
argument assumes that a contractual defining the duties and powers attaching servant can be accorded by implication to each post, despite the completion of
a grade other than his expressly recog the work of the Staff Regulations Com that in the event of a the As nized grade, and mittee and prompting of the conflict between the two it is the latter sembly; this is an inexcusable and which must prevail. This is clearly wrongful failure to act.
contrary to the wording and spirit of The defendant points out that if the Article 102 of the Regulations. In any Court allows the principal request, the event, exercise of particular functions subsidiary request made by the appli
cannot be the determining factor in cants loses its point; if the Court does not deciding which grade has been by allow the request, there will be no
implication attained, since the contract ground for awarding damages since a does not provide for any legally deter wrongful omission will not have been
mined table of correspondence between established.
grades. The table of correspondence in Annex I cannot create rights for con IV —
Procedure tractual servants.
The defendant is of the opinion that, if The written procedure followed the
the Court rejects the applicants' claim normal course. By Order of the Second to be made officials in Grade A 3 with Chamber of the Court of 12 March 1964 effect from 1 January 1962 by virtue a decision as to costs in the proceedings of Article 102 of the Regulations, the in Cases 98 and 99/63 (main action and related problem of possibly reclassifying application for the adoption of an
the applicants is raised by reason of the interim measure) between the same
fact that to the the discon they continued perform parties, which applicants
same duties after becoming subject to tinued, was reversed, on the ground of
the Staff Regulations. This would entail identity of subject-matter with the
a second appointment which could only present action, to the judgment in the
be made subject to the above-mentioned present proceedings. The present two
conditions. cases were joined on the ground of their
As regards the vacant posts, the de identical subject-matter for the pur
fendant draws attention to the fact that poses of the oral procedure and of the
the only vacant A 3 post in the Statistical judgment.
Office provided for by the budget was On 13 May 1964 Mr Advocate-General transferred in the interests of the service Roemer delivered his oral and reasoned to a post in the second 'Third countries opinion to the effect that the decisions
REYNIER v COMMISSION
of the Commission refusing to reclassify ordered to pay the costs of the present
the applicants with effect from 1 January applications and of those in Cases 98 1962 in Grade A 3 should be annulled, and 99/63 (main action and application and that the Commission should be for the adoption of an interim measure).
Grounds of judgment
Admissibility
The applicants have named as defendants in their applications the European Economic Community or, alternatively, the Commission.
Article 179 of the EEC Treaty provides that: 'The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations
of the Conditions of Employment'. The phrase 'the conditions laid down in Regulations' the Staff applicable to officials and other servants necessarily implies that the appointing authority, which exercises in fact the powers of
an employer with regard to officials, has the capacity to be a party to legal proceedings. In this instance the appointing authority is the Commission itself. The wording of the Regulations confirms this reasoning.
Under Title VIII, headed 'Appeals', Article 91 of the Staff Regulations of officials of the European Economic Community is a continuation of Article 90 which describes the procedure through official channels, which it is both
logical and desirable to follow before proceedings are instituted before the Court. Any official may submit his case to the appointing authority of his institution by means of this procedure. Consequently the appeal to the Court provided for in Article 91 ought, in the absence of any provision to the
contrary, to obey similar rules and thus be directed against that same
authority.
The applicants further claim that it is necessary to compel the Community to appear because it comprises several institutions and because of the
distribution of budgetary and financial powers among these institutions.
The Regulations were adopted in accordance with the procedure laid down
by Article 212 of the Treaty by the authorities designated for the purpose, and the institutions are bound by their provisions; therefore the Court's
interpretation of the Regulations applies equally to all the institutions of the Community.
JUDGMENT OF 9.6.1964 — JOINED CASES 79 AND 82/63
Moreover, the force of res judicata prevents rights confirmed by a judgment of the Court from being disputed anew. Since the Community is a single entity, it is inconceivable that judgment of the Court which has the force of
res judicata with regard to an institution — in this case the Commission —
should not have the same force with regard to the Community as a whole.
For these reasons the applications must be regarded as being made against the Commission and there is, moreover, no reason to hold them to be inad
missible.
The Substance
The applicants seek, first, the annulment of their establishment in Grade A 4.
Article 102, paragraphs 1 to 4 of which were incorporated in full in Annex X
to the new Staff Regulations of officials of the ECSC, was designed to fix merely in relation to servants engaged under the so uniform standards not
'Brussels but, in certain respects, also for established contracts'
offi called
cials and other servants engaged under the old ECSC provisions.
One of these common standards secures for all servants of the European Communities established under this scheme recognition of the position
accorded them prior to the entry into force of the Regulations (except in the particular case by the second paragraph of that mentioned Article); this will be by more or less automatically transposing the grade accomplished
and step previously accorded to them, whether expressly or by implication, into the table referred to in Article 66 of the Regulations.
Before the present Regulations entered into force, servants engaged under
the so-called 'Brussels contracts' could not, in the absence of any regulations governing their position, be allocated a grade and step except by analogy with the system prevailing in the ECSC.
Consequently it is quite correct to maintain that the position of such servants is covered by the provision in Article 102 which refers to grades and steps 'impliedly' implica accorded, that is to say, the grade and step accorded by tion by analogy with the ECSC rules. In fact, this provision refers only to the previous grade and step, as far as establishment of officials is concerned.
When carrying out the process of establishment of officials provided for by Article 102, the administration is not bound to take into account, in this
first stage of integrating servants into the scheme set up by the Staff Regula
tions, any possible differences between the grade attributed by this means to
REYNIER v COMMISSION
each servant and the grade which properly corresponds to his duties accord
ing to Annex I to the Regulations and the definitions referred to in Article 5(4).
The decision giving effect to the integration is therefore not to be criticized on the ground that it established the applicants in the same grade and at the
same step which had been accorded to them by implication before the Regulations entered into force.
In those circumstances the applications must be dismissed in so far as they
seek, on the ground above-mentioned, the annulment of the decisions giving
effect to the integration.
However, any servant who, after he has been brought under the Staff Regulations, has been kept in his previous post when that post ought under the new Regulations to carry a grade higher than that accorded under the Article 102 procedure is entitled to have his position regularized in com
pliance with the principle of correspondence between grade and duties prescribed in Annex I.
The applicants requested, by letters dated 2 and 4 April 1963, that they be reclassified in Grade A 3 with effect from 1 January 1962.
It is not disputed in the present proceedings that the applicants exercised
the duties of, and were regarded as, Heads of Division. In the new Staff Regulations of officials of the three Communities these duties correspond
only to the actual career bracket for Heads of Division, which is covered exclusively by Grade A 3. Moreover the administrative units controlled 'Divisions'
by the applicants were described as by the Commission itself.
The fact that the Commission failed to draw up within a reasonable time the description of posts provided for in Article 5 of the Regulations is not an
obstacle to placing the applicants in Grade A 3. In fact, Annex I, where the Council laid down guidelines for the drawing up of this description, provided from the very date on which the Regulations entered into force that Heads of Division should be classified in Grade A 3.
Consequently, the Regulations under which the applicants have been integrated confer on them the right to be classified in Grade A 3 in accord
ance with their posts, as from the date of entry into force of the Regulations.
While the their applicants'
principal conclusions are well-founded, request
for damages is not.
JUDGMENT OF 9.6.1964 — JOINED CASES 79 AND 82/63
The applications should be referred back to the Commission for the purpose
of giving effect to this judgment.
Costs
The defendant has been unsuccessful in its principal submissions, and should therefore be ordered to bear the costs of these applications by virtue of Article 69 (2) of the Rules of Procedure.
The Court has been asked to give a decision as to costs in Cases 98 and 99/63, and in the interlocutory proceedings for the adoption of an interim measure in those cases between the same parties, by Orders of the Second Chamber of 12 March 1964. Jean Reynier and Piero Erba discontinued their applica
tions in those cases. The discontinuance was justified by the conduct of the defendant which stated at the hearing on 11 November 1963, in which the parties to the application for the suspension of certain measures were heard, that it would reclassify the applicants with effect from 1 January 1962 in Grade A 3 if they were successful in their applications 79 and 82/63. Had this declaration been made earlier it would have made the proceedings in Cases 98 and 99/63 unnecessary. The costs in Cases 98/63 and 99/63, and Cases 98/63 R and 99/63 R, must accordingly be borne by the defendant pursuant
to Article 69 (4) of the Rules of Procedure.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General;
Having regard to the Treaty establishing the European Economic Com munity, especially Article 179;
Having regard to the Staff Regulations of officials of the European Economic
Community, especially Articles 5, 66, 90, 91, 102 and Annex I; Having regard to the Rules of Procedure of the Court ofJustice of the Euro pean Communities, especially Article 69,
THE COURT (Second Chamber)
hereby:
1. Annuls the Decision of 21 May 1963 whereby the Commission
refused to reclassify the applicants Reynier (Case 79/63) and Erba (Case 82/63);
REYNIER v COMMISSION
2. Refers the cases back to the Com is on;
3. Orders that the costs of these applications and those of
Cases 98 and 99/63, including the costs of the applications
for the adoption of an interim measure, be borne by the Commission.
Hammes Rossi Lecourt
Delivered in open court in Luxembourg on 9 June 1964.
A. Van Houtte Ch. L. Hammes
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER 1 DELIVERED ON 13 MAY 1964
Mr President, of the first applicant) and Grade A 5/2 Members of the Court, (in the case of the second) under the scale of salaries in the ECSC Staff The problems raised in the two cases Regulations. After a number of salary
which concern us today (joined by an increases (by letter of the Commission of order of 23 April 1964 for the purposes 14 December 1960 the first applicant
of the oral procedure and therefore also was promoted to Grade A 5/2, and the
for the opinion) relate to the classifica second applicant was promoted to Grade
tion of servants following their integra A 4/1 by a letter from the Commission tion under the new Staff Regulations; of the same date), the two applicants
these problems were considered in detail were appointed, during 1961, Heads of by my colleague Advocate-General La Division in the Statistical Office, in the grange and the Court in Maudet v Com case of the first applicant by Decision of European Economic Com 22 December 1961 him in mission of the classifying munity. Grade A 4/2 as from 1 December 1961; The facts appear on the whole to be and in the case of the second, by indisputable. Decision of 3 May 1961, with classifica The first applicant (Case 79/63) and the tion unchanged.
second applicant (Case 82/63) com In the integration procedure, which was menced employment with the Commis introduced after the entry into force of sion of the EEC on the basis of 'Brussels the new Staff Regulations for Com
contracts' (contracts dated 18 March munity officials in order to canvass the
1959 in the case of the second applicant). possibilities of confirming the appoint
They were assigned to the Statistical ments of individual employees, the
Office and at first received salaries cor duties of the applicants were described
responding to Grade A 6/1 (in the case in the integration reports as those of
1 — Translated from the German.