C-102/63

JUDGMENT OF 17.12.1964 — CASE 102/63

formed and the grade which forms the definition of the duties attaching the basis of Annex I to the Staff to his post.

Regulations, as also of Article 5 Where, however, independently of

referring to the definition of duties the wishes of the appointing au­

and powers drawn up by each insti­ thority, a servant performs duties tution, is on the one hand to avoid which, according to the scale of posts,

inequality of treatment between offi­ relate to a post higher than that

applicant,

High Authority of the European Coal and Steel Community, 2 place de Metz, Luxembourg, represented by its Legal Adviser Pierre Lamoureux,

acting as Agent, defendant,

Application for the annulment of decisions relating to the applicant's

career,

THE COURT (First Chamber)

Issues of fact and of law

I — Facts In a note dated 22 January 1963 ad­

dressed to the President of the High The facts of the case may be summarized Authority, the applicant expressed his as fol ws: dissatisfaction with the career bracket The applicant entered the service of the to which he had been assigned, on the

High Authority of the ECSC on 3 ground thatit curtailed the career

January 1955, and on 1 July 1956 was prospects which he had formerly en­

established under the Staff Regulations joyed. The reply given by the Director in grade Personnel 7 1963 in­ A6/1. of on February In October 1958 he appeared in the formed the applicant that as the general detailed list of posts in the Marketing list of posts stood at that time it was

January 1961 the applicant was re­ list of posts for 1963 to 1964, inter alia, being' of 'Conseiller'

quired to discharge 'for the time that a new post (Adviser) Principal Administrator (Grade A3) be created in the Director­ the duties of a

as from 1 July 1960 in post No 18 of the ate-General, abolishing in consequence detailed list of posts in the Directorate- the post of Principal Administrator in

General for Work Problems, the Industrial Reconversion Division. Rationalization and Reconversion. Fol­ According to the note these alterations, lowing this appointment, he was granted considered by Mr Vinck to be necessary

from 1 September 1960 a supplementary in the interests of the service, would have allowance making up his salary to that enabled a number of disputes arising of Grade A4/1. from the introduction of the new Staff

On 21 September 1962, a decision of the Regulations, including that of the appli­

On 29 July 1963 the applicant sub­ under the former Staff Regula­ mitted a complaint under Article 90 of tions at least for him personally;

the Staff Regulations to the President III —

As a subsidiary claim, of the High Authority and asked that the declare null and void, decision of 18 December 1962 be re­ 1. the refusal of the High Authority viewed, at least in so far as it concerned contained in the note of 17 October the career bracket of Principal Admini­ 1963 to grant the applicant's re­

strator, or at the very least that his quest that his administrative career former personal career prospects — bracket be regularized, with the

which included Grade A3 should be obtaining a classification in aim of —

preserved. He also referred to the possi­ Grade A3, which he had by his be­ bility of the conversion of post of implication attained prior to

void: from the Staff Regulations; 1. the refusal of the High Authority in any case, contained in its note of 17 October V — order the defendant parties re­

1963 to grant the applicant's re­ ferred to at 1 and 2 to pay the

quest that his administrative career applicant non-material dam­

be regularized, and especially that ages of, provisionally, one franc, his career prospects, altered by the reserving the right to amend definition of duties and powers this figure as he deems necessary

attaching to basic posts contained in the course of the proceedings; in Annex I to the Staff Regula­ VI —

order the defendant parties

tions at least for him personally: Article 70 of the Rules of II Declare that the defendant In his dated 10 1964 the — par­ reply May ties named in 1 and 2 must applicant submits further subsidiary allow the applicant's career claims that the Court should: prospects to remain as they were 'order the defendant parties to pro-

BOURSIN v HIGH AUTHORITY

duce the following: 9. A note of 19 December 1962 from 1. The minutes of the High Au­ Mr Signorini to Mr F. Vinck brack­ thority relating to the adoption of regarding the new career

the Staff Regulations of officials ets;

dating from 1955 (apparently, 21 10. A staff communication (HA December document No 8585/62 f Sche­ 1955) and 1956; 2. A note from the President of 16 dules I, II, III) of 20 December June 1958, signed by Messrs 1962, signed by Mr G. Signorini Dehnen, Rollman and Vinck (all on the subject of: Introduction of three Directors in the Marketing the new career brackets; concerning the Division), promo­ 11. A note of 7 January 1963 from Mr tions for 1 July 1958; G. Signorini to Mr F. Vinck on 3. A note from Mr F. Vincik of the subject of: Introduction of the December 1959, concerning Mr new career brackets; J. Boursin on the subject of: 12. A note addressed to Mr G. Assessment of the work and duties Signorini, dated 5 August 1963, of Mr J. Boursin with a view to from Mr F. Vinck on the subject possible promotion (Schedule to of: Complaint by Mr Boursin Annual Article 90 of the Regula­ Report); under

4. Internal memorandum No 200 tions — Administrative position

o. A note addressed to the Director- Allow the applicant 's request to call

General of Work Problems of 15 the following witnesses: March 1962 from Mr Signorini 1. Mr Spiegleer,

on the subject of: Introduction of as to the tact that, probably in

new career bracket. Main sub­ September 1961, and in any event jects concerned — "Conditions of on 8 January 1962, Mr Spiegeleer "Social the his employment"

and secu­ assured applicant that rity"; appointment to Grade A4 had 7. A note of 29 May 1962 from Mr been made on the basis of the old Vinck to Mr G. Signorini, on the Regulations, either following a

subject of: Establishment report purely formal competition, or by on Mr Jacques Boursin; promoti n;

Community, leaves the matter to the

It its rejoinder of 24 July 1964 the discretion of the Court. defendant repeats the conclusions in the As for the Committee of the tour Presi­ statement of defence, and, dents the naming of which as defendant leaves entirely to the discretion of tne in the proceedings is justified by the

Court the question whether it is facts of the case, the applicant states that possible, having regard to the ques­ the Committee, while admittedly not

tions of law raised by the applicant's one of the institutions referred to by conclusions, to order the appearance Articles 6 and 7 of the Treaty, is never­

as witnesses of persons who can only theless a Community organ, the powers have acted in a private capacity or of which are disputed in the proceedings.

who at least, as the applicant well It refers to Belgian law, which allows in knows, did not exercise functions such such cases an appeal to the Conseil as could confer on them a power which d'Etat against organs of the commune, could supplant that of the High such as the 'Collège des bourgmestres el Authority the échevins', which do not themselves have autho­ or appointing legal capacity. rity.'

that neither the note from the President In his originating application the appli­ dated 17 October 1963, nor any previous cant named as def nda ts: communication whatsoever from the

1. The ECSC; High Authority could have contained a 2. T he High Authority of the ECSC; refusal to uphold the applicant's vested

3. If necessary, the Committee of the rights relating to a career within bracket four Presidents mentioned in Article A3, because he never had any. The 78 of the ECSC Treaty. applicant was in fact established in the

In its statement of defence, the High post of Principal Administrator which he Authority declares that within the limits occupied from 1 January 1962, that is to of its powers it represents the ECSC in say, a date when the career of Principal accordance with the third paragraph of Administrator no longer included Article 6 of the Treaty. Grades A4/A3, but only Grades A5/A4. The Committee of the four Presidents, in a Thus, since the applicant was never

letterfrom its Chairman dated 27 established in career bracket A4/A3, nor a fortiori January 1964, states that since it is not no career prospects any an institution referred to by Articles 6 right attaching to career bracket A3 and 7 of the ECSC Treaty it has no could have vested in him or, as a result,

capacity to be a party to legal pro­ have been withdrawn. ceedings. T he applicant replies that the promotion

defendant could not reply to the appli­ Annex I to Regulations regarding the

cant's request by alleging a failure to act the correspondence between basic posts

on his part. The defendant itself had and career brackets and the determina­ acknowledged in the past that the tion of the position within the admini­

applicant's career prospects covered stration and personal career bracket of

career bracket A3 and expressed its by note from the President the applicant

regret that it was unable to uphold them of the High Authority of 16 February

promoted to Grade A5 with effect Transitional Provisions they should be from 1 January 1960, could not be regarded as not merely open to challenge

given a new promotion before 1 before the Court, but void ab initio. The January 1962, by virtue of the first limitation period fixed by Article 91 of paragraph of Article 39 of the ECSC these Regulations is therefore irrelevant,

Staff Regulations, and the second since it is the old Regulations which are paragraph of Article 2, Annex IV of applicable, Article 58 of which makes no the High Authority to those Regula­ mention of a limitation period for initiat­ tions. ing proceedings. Even if Article 91 of the However, the defendant concedes that new Staff Regulations were held to be the question whether or not the note of applicable, the period of time of three

17 October 1963 amounted to an ex­ months for commencing proceedings pression of intention to refuse to main­ can only begin to run from the date of

tain the applicant's career prospects publication of the Regulations, in ac­

extends somewhat beyond the field of cordance with Article 81 of the Rules of admissibility. Nevertheless, it is a ques­ Procedure of the Court, since they tion which must precede any discussion applica­ constitute a measure of general

that he responded to the note from the career prospects up to Grade A3 Director of Personnel of 23 January 1963 in a note sent to the President of the See arguments under I — 1 above.

High Authority. The reply to this note, made not by the High Authority itself III —

1. Annulment of the refusal, con­

but merely by Jaurant- Octo­ an official, Mr tained in the note of 17

Singer, cannot be considered to consti­ ber 1963, to reclassify the

tute an authoritative reply to a com­ applicant in Grade A3 plaint through official channels.

cumstance sufficient to make a measure made, either expressly or by implica­ void is the presence of a grave irregula­ tion.

rity, which is certainly not the case here. The defendant also observes that since

The new Regulations, set out in the this request, submitted in the guise of an

Official Journal of the Communities application against the note of 17 (Official Journal, 1962, p. 2673), were October 1963, is in reality directed moreover public knowledge and the against the decisions of 5 September applicant was fully aware of them. 1962 and 23 January 1963, it is out of

Since he admits that on 28 January 1963 time.

he made a complaint to the administra­ The applicant replies that when he sug­

Illegality of the established without reservations, or that

tions, especially Article 5 (4) and his reservations must be disregarded Annex I because they were not followed by pro­

ceedings, the resultant exclusion of his See the arguments under I —

1, (b) right of appeal applies only to the past, above. and his complaint must be admissible

BOURSIN v HIGH AUTHORITY

from the date on which it was submitted, that the Court itself should establish

matter of the appeal could be made

be deter­ The defendant contends that the applicant permitting its true nature to

mined. Since the administrative appeal has submitted no arguments in support of 29 June 1963 made no reference of this request, which is accordingly whatsoever to the definition of duties inadmissible. sent out on 21 May 1963, and only such T he applicant considers that if judgment a reference could have given the reasons is given in his favour as regards the main for and constituted a request for reclassi­ heads of his conclusions, it will thereby fication, the request must be out of time. accord him satisfaction as regards the

non-material damage. III — 2. Annulment of the integration of the applicant in so far as it Substance of the case

involves his establishment in Grade A4 A The refusal of the High Authority —

contained in its note of 17 October 1963 The defendant maintains that this request is inadmissible because it is made out of The application challenges the decision of time, the applicant having been notified refusal which he alleges is contained in of his establishment in Grade A4 17 October 1963, by a the note of on the infringe­ note dated 21 September 1962. grounds of lack of competence,

January 1962 drawn up by a body lacking the neces­

sary powers, the period of time pres­

The defendant states that this request is cribed by paragraph 7 of the Conven­ inadmissible on the ground that it tion on the Transitional Provisions relates to the exercise of a power vested having expired when the Regulations in the administration alone. were drawn up by the Committee of The applicant replies that he is not asking Presidents. Articles 46 and 62 of the

JUDGMENT OF 17.12.1964 — CASE 102/63

Regulations, drawn up maintaining it. In fact if the Regulations pur­ previous

suant to paragraph 7 of the Convention, were defective the decision establishing are not applicable outside the transi­ the applicant in his post of Principal tional period allowed for by this pro­ Administrator, consequently his and

applicant to support the grounds upon appointment, especially since he had which he relies, in particular those of already been appointed to Grade A4 infringement of an essential procedural under the old Regulations. Moreover, requirement and of misuse of powers, he could have an interest, even if he

contrary to Article 38 (1) of the Rules of were to be put back in Grade A5 for a Procedure, these submissions must fail time, in being subsequently appointed from the outset. to Grade A4 with the same career

The applicant replies that it is sufficient prospects as he enjoyed under the old

for the requirements of Article 38 of the Regulations. Rules of Procedure that the opposite T he dejendant observes, on the contrary,

party is not in doubt as to the grounds that the applicant's interest in obtaining

invoked, without any necessity for the a declaration to the effect that the

Head III — 1. of his conclusions. nullity.

The dejendant contends that it is not

sufficient to state the facts and plead the (b) Substance grounds of nullity, without establishing the relationship between them. According to the defendant the grounds invoked by the applicant are not well-

The argument based on lack of com­ founded in law since Articles 62 and 46 petence ratione temporis of the former Regulations on which the power of the Committee of Presidents to (a) Admissibility amend the Regulations is based, did not

cease to be applicable on expiry of the The defendant maintains that the sub­ transitional period. The transitional mission based on the alleged nullity of provisions which, according to para­

the Regulations is inadmissible because graph 7 of the Convention, were to cease it fails to establish its object and because to have effect on the expiry of the

Committee of Presidents is competent to Presidents in this respect is not a power rule under Article 78 (3) of the Treaty to make decisions, but merely to co­

are governed by Article 5 (4) and Annex ordinate the measures to be taken in this I to the Regulations, the establishing of a field by the competent body which has table of correspondence between basic yet to be determined. posts and career brackets coming within As regards the power of the High

the context of determination of salary Authority itself to adopt the new text of scales. But even if the Committee of the Regulations, the applicant con­

Presidents had not the necessary powers, siders it highly probable that in this

the High Authority itself did because it instance the new text was by adopted

has power to regulate relationships the High Authority purely by means of a between itself and its servants. decision to the effect that the text was to The applicant relies on the opinion ot be applicable to its staff. Moreover, it is Advocate-General Lagrange in the Al- not certain whether after the transi­

34/58, the applicant readily concedes ments of provisions of the actual Treaty that the former Regulations could have and not to the Staff Regulations. There continued to be applicable even after is no reason for the High Authority to expiry of the transitional period. If the consider itself bound to preserve the

High Authority wished to draw up new career prospects available to a particular

Regulations it should have followed the official under the old Regulations. procedure for amendment laid down by as regards the powers of the Com­

Article 95 of the Treaty, or allowed the mittee of Presidents, the defendant individual institutions to make the neces­ cannot see how 'a prior declaration sary amendments themselves. within meaning of Article 78 the (3), of

Rejecting the defendant's arguments to the Treaty implies a power to give

JUDGMENT OF 17.12.1964 — CASE 102/63

in the continued existence of the text must be respected by administrative

governing their position, other than that bodies. The right to a particular grade

expressly accorded them. It refers on this appoint­ arises only after promotion or

point in particular to Belgian, French ment to that grade. There is no right to and Italian law. promotion. Consequently, the creation The applicant, while acknowledging that of new, immediately applicable condi­

under national law officials governed by tions which must be satisfied in order to staff regulations do not in general have give rise to a right to Grade A3, by the advantage of vested rights, states means of amending the career brackets, that the case-law of international ad­ does not infringe the principle of non-

ministrative courts and tribunals shows rectroactivity. The second paragraph

with regard to international public that vested rights must be respected.

servants. This is because these, unlike The defendant contends that this argu­

national public servants, have little ment is inadmissible because, first, the

BOURSIN v HIGH AUTHORITY

applicant is not entitled to invoke such arguments to support those grounds.

an argument when his career prospects The defendant contends that these never embraced Grade A3 and, grounds nullity cannot be taken into of secondly, the failure on the part of the consideration in the circumstances. In Committee of Presidents to make transi­ any case it could not classify the appli­

of the Rules of Procedure that the oppo­

sonal career prospects. site party and the Court should be able T he replies that the illegality applicant to understand precisely the content of precisely in the failure by the consists the application without its being neces­

Committee of Presidents to make pro­

sary to make express reference to any vision in the Regulations for preserving particular Article of the Treaty or to any the above-mentioned career prospects. other provisions. Moreover, Article 42 of the Rules of Procedure permits C— The correspondence between duties and grounds which are outlined in the grade application to be developed in greater

detail, and applies particularly in a case In his originating application the appli­

such as this, where the Court has un­

JUDGMENT OF 17.12.1964 — CASE 102/63

stated in the Maudet judgment. The ate to that of someone who was himself Director. applicant claims bearing in mind that, responsible to a

the fact that he was directly attached to The various reports on the position

Mr Vinck, the duties carried out by him drawn up by the Director-General of both before and after his integration Administration and Finance on behalf correspond to those of an Adviser in of the High Authority, the refusal

Grade A3, according to the definition of given on 5 March 1963 by the Adminis­ duties and powers drawn up by the High trative Committee to create a post of

Director- Authority. He submits that Mr Vinck be Adviser to the applicant's

lished in those cases that the applicant trary to the third paragraph of Article 78 was in charge of a department which was of the Treaty, the power of prior deci­ 'division' termed a by the institution sion which is provided for therein. itself, and it was therefore indisputable that the applicant was exercising the IV—Procedure duties of a head of division both de jure and de facto. In this case, however, it is The written procedure followed the

de jure incontestable, having regard to normal course. After hearing the Advo­ the detailed list of posts both before and cate-General, the First Chamber of the did Court decided at its sitting on 21 Octo­ after 1962, that the applicant not

exercise the duties of a. head of a division, ber 1964 to open the oral procedure

or duties such as would have shown that without any preparatory inquiry. he had the task of advising one body of The oral submissions of the parties were the institution, or that he was engaged in Heard in open court on 11 November studies or supervisory work under the 1964. The Advocate-General delivered

authority of a Director-General or a his opinion at the hearing on 2 December Director, because his rank was subordin­ 1964.

Grounds of judgment

Regulations must be governed by similar rules and be directed against that same institution.

In view of the nature of the duties assigned to the Committee of the four Presidents by Article 78 of the Treaty, measures adopted by it are only capable of producing legal effects as regards servants of the Community by means of decisions of the institutions on which such measures are binding.

The legality of measures adopted by the Committee of Presidents may only be questioned through such institutions.

Consequently, it is necessary to exclude, before proceeding to any further examination, the possibility of admitting actions brought by servants of the

Community against that Committee, and it is not necessary to decide the latter has the capacity under Community law to be a question whether the

party to legal proceedings.

cannot be upheld until some examination has been made of the substance.

The defendant further objects that the request is inadmissible because it is

JUDGMENT OF 17.12.1964 — CASE 102/63

out of time. The applicant was notified of the determination of his position within the administration and his career bracket under the new Regulations

by a note sent to him on 23 January 1963. It appears from this note that the applicant's career bracket was restricted to Grades A4 and A5. Therefore, even though the letter sent on 28 January 1963 by the applicant to the President of the High Authority is capable of constituting a complaint

within the meaning of Article 90 of the Regulations, and though the note of

Transitional Provisions, far from itself conferring powers relating to the Regulations on the Committee of Presidents, presupposed the existence of such powers.

It is usual and in accordance with the proper functioning of any administra­ tion that a body which has power to adopt regulations in a particular field should likewise have the power to amend them. Therefore, Article 62 of the

Regulations drawn up in 1956 by the Committee of Presidents and applied

by the High Authority, providing that the Committee shall have the power to make amendments, subject to certain conditions, to the Regulations, must be considered lawful.

In those circumstances Article 91 of the new Regulations applies to the

applicant, and the said request must be held inadmissible because it is out of time.

out of time.

D — Correspondence between duties and grade

1. Admissibility

In support of the first head of his subsidiary conclusions, the applicant claims that the duties exercised by him in accordance with the instructions given by his Director-General, both before and after his integration under the new Staff Regulations, correspond to those of an Adviser in Grade A3,

according to the definition of duties and powers drawn up by the High Authority. Consequently, he claims that he is entitled to be reclassified in that grade.

The defendant contends that this request is inadmissible because it is out of

It is true that in his above-mentioned note the applicant only requested as a

subsidiary point, and in very vague terms that his post of Administrator be converted into a post of Adviser. However, the defendant well understood the true import of this proposal, as is evident from the reply given by the High Authority in the note of 17 October 1963 and from the reasons given in it for the impossibility of converting the applicant's post as he had requested.

This objection of the defendant must therefore likewise be rejected.

JUDGMENT OF 17.12.1964 — CASE 102/63

2. The substance

The aim of the principle of the correspondence between duties performed and the grade which forms the basis of Annex I to the Regulations as also of

authority to give his subordinates duties to perform which, according to the scale of posts, related to a post higher than that to which the employee had been appointed, a factual situation might arise which would be binding on the appointing authority while not intended by it.

In the present case, whatever the nature of the duties the applicant might have been asked to perform by his Director-General, it is clear that the defendant never authorized theapplicant to be directly attached to the

latter. On the contrary, it showed evidence of the opposite intention on

several occasions.

Consequently, the applicant can have no legitimate claim to be reclassified in Grade A3.

E — The claim for damages

Under Article 70 of the Rules of Procedure of the Court of Justice of the European Communities institutions shall bear their own costs in actions by servants of the Communities.

Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

Since the applicant has failed in all his submissions, he must pay his own costs.

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-Gneral;

Having regard to Article 78 of the establishing the ECSC and Treaty paragraph 7 of the Convention on the Transitional Provisions annexed to

Lecourt Delvaux Trabucchi

Delivered in open court in Luxembourg on 17 December 1964.

A. Van Houtte R. Lecourt Registrar President of the First Chamber