C-83/63

JUDGMENT OF THE COURT (FIRST CHAMBER) 8 JULY 1965

Stefan Krawczynski

v Commission of the EAEC

Case 83/63

Summary

1. Procedure—Conclusions in the application — Amendment in the course of pro­

amendment is based on matters of constitutes a dispute of a financial law or of fact which come to light character, within the meaning of in the course of the written pro­ Article 91 (1) of the Staff Regula­ cedure. tions of Officials.

In Case 83/63

STEFAN KRAWCZYNSKI , Doctor of natural sciences, graduate in physical

Com­ science, an official of the Commission of the European Atomic Energy munity, resident at 33 Via Milano, Angera (Italy), assisted by Ernest Arendt, Advocate of the Cour Supérieure de Justice of the Grand-Duchy of Luxem­

bourg, with an address for service in Luxembourg at the Chambers of his saidcounsel, 6 rue Willy-Goergen,

applicant,

Application concerning the classification of the applicant, the lack of protec­ tion against the alleged animosity shown by a senior official and the alleged lack of organization at the Joint Nuclear Research Centre at Ispra;

THE COURT (First Chamber)

composed of: L. Delvaux, Acting President of Chamber, A. Trabucchi and W. Strauß (Rapporteur), Judges,

Advocate-General: J. Gand Registrar: A.Van Houtte

gives the following

JUDGMENT

KRAWCZYNSKI v COMMISSION

Gueron was responsible, which had The applicant was informed by letter of hindered his work and, in particular, 23 July 1963 that the defendant had against his dismissal from his posi­ rejected this request. tion as Head of the Reprocessing (9) On 7 August 1963 the applicant Department; made the present application. — criticizing alleged defects of organiza­ tion and urging the defendant to 'carry out a fundamental reorganiza­ II — Conclusions of the tion'. parties By letter or 11 December 1962 the defendant informed the applicant that In his application, the applicant claims his complaint had been rejected. that the Court should: (6) By a decision of the defendant of 'I — Declare that it has jurisdiction 25 April 1963 the applicant was estab­ lished in Grade A5. to hear this dispute; (7) On 28 April, following an incident II — Declare that this application is which occurred at Brussels during an admissible; official meeting held on 25 April 1963, III — On the substance: state that the the applicant submitted a complaint to the defendant in which he describes the present application is well founded; events which took place as follows: 'I entered ... the conference room ... and consequently: where I ... met Messrs ... who were 1. Rule that the duties of the engaged in conversation before the applicant as Head of the section meeting began. I approached Mr dealing with decontamination Gueron and, greeting him respectfully, and processing of effluents, I offered him my hand. Mr Gueron did under the direct authority of the not reply to my greeting. On the con­ Head of Department, corres­ trary, he left me standing there with pond to those of Head of my right hand held out for a long and Division, as described in the embrassing moment before turning detailed list of posts of 11 July brusquely away without a word ...'. 1963;

cant, as provided in Article 24 search [Mr Gueron] refused of the Staff Regulations, against to shake the applicant's

the animosity shown by the hand when proffered and

Director-General for Research abruptly turned his back on

... constitutes a wrongful act him without speaking to

or omission giving rise to a him; this occurred in the

claim for damages: presence of several of the

wrongful behaviour on the part tions to his subordinates and of that institution; colleagues without observing order the defendant to pay such the normal administrative

damages to the applicant as the channels; Court shall see fit; that, in this way, he serious­

ly damaged (b) In the alternative: the authority and respect due to the appli­

take note that the applicant cant and made it impossible offers to prove by any means for him to comply with the open to him in law, and in provisions of Article 21 oi particular by the evidence of the Staff Regulations; witnesses, the following facts: (5) that the instructions given

(1) that he was appointed at by the Director-General for the JNRC at Ispra on the Research ... conflict with

Director- express understanding that those of the

ly, A4 is a result solely of victim of this misunder-

KRAWCZYNSKI v COMMISSION

standing between the two 2. Rule that the fact that the

Directors-General and that applicant was maintained in his Grade A5/1 dis­ right to regular, useful represents cor­ scientific employment crimination as compared with

responding to his training his non-German colleagues, is has been permanently and ultra vires and constitutes a

irrevocably affected; misuse of powers; rule that this evidence is 3. Order the defendant to pay relevant and decisive and such damages as the Court shall

In his reply, the applicant claims that and interest in a career in parti­

the Court should: cular by depriving him both of any opportunity to carry out 'I —Dismiss the two objections of scientifically useful work and of

inadmissibility raised by the his eligibility for promotion defendant as unfounded; under Article 45 of the Staff Regulations; II — On the substance, princpaly: rule that the defendant is

A — 1. Accept the conclusions bound to make good the result­

of the applicant set out in his ing material and non-material

originating application; damage suffered by the applicant consequently, rule that the appli­ and, therefore, order it to pay cant's claim for classification in such damages as the Court shall Grade A3 or, alternatively, in see fit; Grade A4 as from 1 January In the alternative: 1962, with seniority in the grade as from 1 April 1961, is justified take note that applicant

salary paid to German offi­ ments of the parties

cials could not exceed by The submissions and arguments of the more than 20% the salary in parties may be summarized as follows: formerly paid Germany; that this discrimination was, 1. Admissibility of the application however, only of a tem­

appli

nature and that an The defendant maintains that the porary adjustment would be made cation is inadmissible on the ground that

at the end of the proba­ it is time - barred. In fact, since his

tionary period (6 months'); complaint of 16 October 1962, the

that all the applicant's Ger­ when the Staff Regulations were first (3) applied to him. man colleagues even those

who entered the service of 2.2. The substance of the application the JNRC after his appoint­ A A — The classification of the applicant ment, had advanced to

higher grades and that the The applicant points out that he gave

applicant had alone been up up his employment at Karlsruhe only passed over for promotion: on i the basis of a promise by Mr Ritter (4) that on 17 December 1963 that at Ispra he would be made res­

the applicant received oral ponsible for the organization and

direction Depart­ notification that the number of the Reprocessing of his colleagues was to be ment.

Order the defendant to pay all applicant at that time that the emolu­

the costs of the action'. ments paid to servants at Ispra were

fixed on the basis of the emoluments In its rejoinder, the defendant sets out in their State paid to them of origin its earlier conclusions and contends in and by virtue of that, an agreement addition that the Court should: between Germany and the Commission, 'declare that the defendant is authorized, he salaries of German scientists could

as far as is necessary to bring evidence lot exceed by more than 20% 'those

to refute the allegations of the appli­ paid before their employment with the

Centre The however cant.'

importance into larger or smaller head of division and, thus, to a post in 'departements' departments (known as Grade A3. The unit directed by the 'services' and respectively), sections and applicant is 'totally independent'; it depart­ groups; the heads 'scientific in special­ of the smaller constitutes a unit a field' ments ('services') were classified in ized as the applicant is the only career bracket A3 or, at the least, in research worker at Euratom to deal with career bracket A4. decontamination. Until 11 July 1963 In the absence or the head of the he was directly subordinate to Mr Materials Department, the applicant Ritter; at present he is responsible to

was directly subordinate to Mr Fitter. Mr Lindner who is in Grade A2. At that time this department was In addition the applicant refers to his

administered by a committee which was professional qualifications; he also

heads depart­ composed of of smaller makes the following observations: ments and heads of section and which — that on several occasions Mr Gueron

included the applicant. With the excep­ refused to comply with recommenda­

tion of the applicant and one of his tions for promotion made by Mr colleagues, all the members were classi­ Ritter without indicating the reasons fied in Grade A3 or A4. for this refusal; that the applicant

into force a new detailed list of posts ing to his activities:

which shows the following modifica­ — that Mr Laurent and Mr Hannaert, tions of the former list: the heads of the two other sections

— the department remains the most in the Chemistry Department, are

important unit: classified in Grade A4; 'department' — the former smaller — that several of the applicant s sub

('service') to the the same remunera ­

now corresponds ordinates receive 'division' (classification of its head: tion as he does; A3);­ — that several of Mr Laurent s sub­

the larger and smaller departments not be conferred by this report. When ('departements' and 'services'). the report was draf­ ted, the preliminary The defendant replies: work on the definitions of duties and (a) On admis bilty: The applicant s powers provided for in Article 5 (4) of request is inadmissible. It is doubtful the Staff Regulations of Officials had whether an official has the power to only just begun. The observation in refer the question of his classification question in no way uses binding legal to the Court, unless he can show that terminology; in particular, it omits to

his is based into 'basic fixed posts'

request on various specific take account the

and weighty elements of fact which in Annex I B to the Staff Regulations together are evidence of an infringement which does not contain such concepts

of his rights and interests. In this case as 'responsible for the direction of a department' the submissions of the applicant are or 'head of department'.

clearly irrelevant; the defendant sets The references by the applicant to the force' out this argument in detail. 'detailed list of posts in are also

of the parties, only the offer of employ­ only represented the opinion of their

ment made on 7 January 1961 is of authors. According to the Treaty, the

importance and this was accepted by Commission is alone empowered to

the applicant without reserve. It is true determine the structure of working only that the applicant was appointed units.

on the basis of his experience in the The reorganization undertaken in May respective fields of decontamination and 1962 did not reduce the applicant's

'hot chemistry', that he was first of all status. In fact the result was rather

finan­ of a reprocessing plant of the same and from the administrative and

type as that which he had planned for cial points of view he is obliged to More­ the research centre at Karlsruhe. follow the directives of his superiors and over, the applicant's present employ­ is no more independent than the other

ment, which is by no means unaccept- heads of section.

KRAWCZYNSKI v COMMISSION

It is also incorrect to claim that the research workers. The indefensible classification of an official must be deter­ nature of 'these allegations is shown by mined on the basis of that of his the case of the applicant himself. In immediate superior. fact, a comparison of the net salary The applicant's position corresponds to received by the applicant in his former Grade A5 ('head of a specialized post with the emoluments received at

section'). Moreover, there must be no the first step in career bracket A5 shows

It is at the least premature to maintain also puts forward the submission of department' that 'heads of are generally misuse of powers.

classified in Grade A3 or in Grade A4. B — The defendant's refusal to assist Several examples could be given of the applicant against the alleged officials performing duties similar to

those of the who were refer­ animosity shown by Mr Gueron applicant, red to in one of the abovementioned The applicant refers to a series of facts

schemes of organization as 'responsible which, in his opinion, demonstrate that department' for a and were classified Mr Gueron showed systematic animosity in Grade A5. towards him. These are, first, the facts In order the refute the conclusions which were the subject of the com­

drawn by the applicant from a com­ plaints submitted by the applicant in parison of his own position with that of 1962 and, in particular, the incident of certain of his colleagues, the defendant 25 April 1963. The applicant maintains defendants' relies on criteria based on age, seniority, that the refusal to assist

experience in employment and scientific him constitutes a wrongful act or

reasons for its view that the applicant officials of the Community. was unjustified in believing that the In particular, as regards the incident

classification in question was the result of 25 April 1963, Mr Gueron's behav­ of the alleged animosity shown by Mr iour was rendered even more offensive Gueron. by the fact that he is a very senior Finally, the defendant protests vigor­ official. It is useless for the defendant

ously against the applicant's allegation to seek to excuse this behaviour by that agreements had been made between referring to the applicant's complaint

Euratom and Germany which implied of 16 October 1962, since the tone of document discriminatory classification of German this was perfectly correct n and a

JUDGMENT OF 8. 7. 1965 — CASE 83/63

had not resulted in any disciplinary result both on the scientific level and

several months Mr Gueron had been similar to those set out above under 1 the target of violent criticism on the and 2, A and B. part of the applicant. Furthermore, con­

vention requires a subordinate to wait IV—Procedure for his superior to take the initiative in offering his hand. This being so, the By orders of 15 October and 13 applicant's behaviour might have November 1964 the First Chamber of

appeared to be provocation. the Court decided to order certain facts The applicant replies, as regards to to be proved by the evidence of wit­

admissibility, that the defendant's nesses and, for purpose, this to hear allegations are irrelevant, if only because Mr Hubert, Mr Ritter and Mr Lindner. he also puts forward the submission of These witnesses were heard by the

misuse of powers. Chamber at the hearing on 11 December 1964. C — On the alleged disorganization of The parties presented oral argument to of the Centre the First Chamber of the Court on 11 The applicant sets out in detail the February 1965. facts which, in his opinion, demonstrate The Advocate-General delivered his the lack of organization at the Centre opinion at the hearing on 17 March and the damage which he suffered as a 1965.

Grounds off judgment

of the applicant, the failure to protect animosity him against the alleged of

Mr Gueron and the alleged lack of organization at the Ispra Centre.

The abovementioned complaint through official channels, which was in fact formulated before the applicant was established, did not refer to bis classification.

KRAWCZYNSKI v COMMISSION

In respect of the other two issues of the present application, the applicant

relies on a fact which arose after the dismissal of this complaint, namely the incident of 25 April 1963.

the abovementioned reservations.

The defendant contests the admissibility of the first submission, on the

ground that an official is not entitled to request the Court to give a ruling on the legality of his classification.

This objection is unfounded, since Article 91 (1) of the Staff Regulations of Officials refers expressly to 'disputes of a financial character between one of the Communities and any person to whom these Staff Regulations apply.

II—The substance of the application

I. The first submission

As the Court has previously held, Article 102 of the Staff Regulations en­ abled the Institutions to proceed in this manner, although they were required to regularize the position of the person concerned if necessary under the principle of the correspondence between duties and grades.

Thus, it is necessary in this case to consider whether this principle obliged the defendant to classify the applicant in Grade A 3 or, alternatively, in Grade A 4.

In so doing, it is first necessary to take into consideration the position of the applicant at 1 January 1962, the date on which his establishment came into retroactive effect.

However, as the applicant was only informed of his establishment in 1963, it is necessary to discover whether the changes which occurred in his position between 1 January 1962 and 23 July 1963 lead to a different assessment.

3. The classification of officials of the scientific and technical services of the Joint Nuclear Research Centre is governed by Annex I B of the Staff Regu­ lations and the table of the definitions of basic posts concerning these officials drawn up by the defendant under Article 5 of these Regulations (hereinafter referred to as the 'table of definitions').

This table lays down, in particular as regards career brackets A 3, A 4 and A 5 — A 8, two alternative criteria, one of which refers primarily to the rank in the service of the person concerned and the other to his designation and the scientific or technical nature of his duties.

(départment') both before and after the entry into force of that table.

Alternatively, he claims that he should be classified in Grade A 4, on the

ground that the table of definitions mentions this grade in relation to 'Heads Department' of ('chefs de service').

The defendant objects that as, at that time, the research programmes of

Euratom and the details of their implementation were not yet crystallized, it had been impossible to give a final structure to the scientific services.

In addition, it maintains that the abovementioned detailed list of posts had been drawn up by the authorities at Ispra and had not been submitted for approval to the central administration of Euratom.

However, the defendant's argument that the table of definitions was drawn up subsequently is not of final relevance.

In fact, being an implementing provision of the Staff Regulations, this table, like the Regulations themselves, is retroactive to 1 January 1962.

It adopts to a considerable extent the concepts of the abovementioned 'department' detailed fist of posts, in particular by making the smaller ('ser­ 'department' 'sections' vice') rank below the larger ('departement') and the 'groups' 'department' and below the smaller 'service').

JUDGMENT OF 8. 7. 1965 — CASE 83/63

Finally, it seems to assume that normally the person responsible for a sector of activity which is controlled directly by a larger department (département') performs duties corresponding to Grade A 3 or, at least, to Grade A 4.

This being so, the problem is reduced to the question whether the duties performed by the applicant at 1 January 1962 were already sufficiently clearly defined to fall, from the point of view of the criterion of rank, within one of the concepts set out in the table of definitions.

This being so, the applicant's statement that Mr Ritter had promised to

entrust to him certain projects in the field of reprocessing is irrelevant.

Although it may be accepted that these were the prospects held out by Mr Ritter to his future colleague, any legal obligation to that effect is excluded

by the fact that the contract of employment, signed without reservation by the applicant, contains no reference to them.

However regrettable it may be that the applicant's professional hopes should have been disappointed, they cannot be likened to hard facts when considering classification.

In these circumstances the participation of the applicant in the work of cer­

According to the table of definitions, the duties of head of section correspond to career bracket A5-A8.

However, as the defendant admits by implication, this argument alone is not capable of refuting the applicant's claims.

In fact, even after publication of the table of definitions, and at least as

regards the department to which the applicant belongs, the defendant con­

'sections' tinued to use the term in relation to units directly responsible, in the same way as the unit directed by the applicant, to this department, whilst

according to the abovementioned table the duties of head of such a unit

In short, as regards the table of definitions, the position of the applicant with

regard to rank is, to say the least, ambiguous.

It is, however, unnecessary to consider this question in greater depth.

In fact, as publication of the table of definitions took place only a short time before the rejection of the applicant's complaint, the defendant, finding it impossible to adapt the concepts of the table of definitions quickly to the still

precarious structure of the scientific services, was able to rely in the first place on the scientific and personal criterion.

It is therefore essentially this criterion which must be taken into considera­

classification to be made.

(a) As regards the applicant's university education it is clear that he possesses the very highest degrees which are awarded in his country of origin.

From this point of view, therefore, he may certainly claim the best classifica­

tion which is legally compatible with his duties.

This view is confirmed by the applicant's membership of certain scientific bodies of the greatest importance.

(b) However, the criteria based on age and, in particular, on experience in employment take on greater importance when it is necessary to determine the classification of a research worker whose duties involve management.

At 23 July 1963, the applicant had approximately seven years' experience in

employment.

'section' Among the heads of within the same department, only one, Mr

Hannaert, Grade A4 less than 7 years'

obtained with experience.

Moreover, it is clear from one of the abovementioned documents that nor­

2. The applicant claims to have suffered discrimination inasmuch as, by an agreement made with the Federal Republic of Germany, the defendant is

alleged to have undertaken not to pay to German research workers, during the probationary period, a salary which exceeded by more than 20% that previously paid in Germany. The defendant categorically denies state­ this

ment.

In fact, it appears most improbable that a Member State and an institution of the Communities should have undertaken obligations of such manifest

illegality.

Quite another question is whether the defendant of its own accord took into

Since the disputed classification is thus objectively justified, the applicant's allegation that it was the result of Mr Gueron's animosity is shown logically to be without foundation.

It follows from all these considerations that the present submission must be rejected.

However, this decision in no way prejudices an assessment of the applicant's date subsequent to 23 July 1963, particularly in the light of the position at a

developing nature of the criteria of age and experience in employment and of the need to adapt the administrative structure of the services at Ispra to the concepts and the spirit of the table of definitions, whatever the difficulties inherent in the establishment of such a structure for scientific work.

JUDGMENT OF 8. 7. 1965 — CASE 83/63

2. The second submission

Article 24 of the Staff Regulations of Officials which obliges the Community to assist an official who is the victim of certain types of wrongful behaviour,

Mr Gueron's behaviour was all the more offensive as it occurred in the

presence of numerous other people and was perpetrated by a senior official

who should have known, better than any other, how to master his irritation, however iustified.

Such behaviour is not, however, sufficiently serious to justify recourse to Article 24 of the Staff Regulations of Officials.

The present conclusions must therefore be dismissed.

application.

In the absence of any reason justifying the delay, conclusions submitted in the reply are inadmissible.

KRAWCZYNSKI v COMMISSION

4. Offers of proof

As the Court now has all the information necessary to settle this dispute, it seems unnecessary to admit the offers of proof made by the parties, apart from that already admitted by the Court, in particular that set out in the

'request for the communication of additional information and amplification of

In fact, the inaccuracies practised or tolerated by the defendant in the de­ signation ofthe administrative units and the contradictions appearing in the

implementation of the table of definitions may have been contributory factors in the applicant's decision to claim a more favourable classification.

Moreover, the applicant may have regarded as offensive the attitude shown by Mr Gueron, a senior official employed by the defendant, during the

meeting of 25 April 1963.

Thus there is reason to divide the costs as appears in the operative part of

the judgment.

Having regard to the Protocol on the Statute of the Court of Justice of the European Atomic Energy Community;

Having regard to the Staff Regulations of Officials of the European Economic Community and of the European Atomic Energy Community, in particular Articles 24 and 91 and Annex I B;

Having regard to the Rules of Procedure of the Court of Justice of the

European Communities, in particular Articles 38, 42, 69 and 70;

THE COURT (First Chamber)

her by:

lack of organization at the Centre at Ispra as inadmissible;

4. (a) Orders the defendant to bear its own costs and two fifths of the costs of the applicant in the main action incurred in respect of

the 'request for the communication of additional information and amplification of evidence', filed by the applicant on 17 December 1964;

(b) Orders the defendant to bear the costs incurred in connexion

with the travelling expenses of the witnesses.

Delvaux Trabucchi Strauß