C-109/63

of a table defining the duties of officials Important new fact — — Application for review of the decision on grading Permissibility —

2. Officials — Grading — No right to a particular post based on an internal administrative proposal for the improvement of the service

3. Officials — Appeal against a general measure for the organization of departments —

Inadmissibility (Staff Regulation of Officials of the EEC, Article 91)

1. The publication of a table defining itself constitute legal recognition of

the duties and powers attaching to the right of an official to a grading each post can be regarded as an corresponding to a particular post. important new fact enabling an 3. The administration is alone respon­

Charles Muller , an official of the Commission of the European Economic

Community, represented and assisted by Marcel Slusny, advocate at the Cour d'Appel, Brussels, and assistant lecturer at the university of Brussels, with an address for service in Luxembourg at the chambers of E. Arendt, 6 rue Willy-Goergen, applicant, 1 — Language of the Case: French.

JUDGMENT OF 16.12.1964 — JOINED CASES 109/63 AND 13/64

The European Economic Community or, alternatively, the Commission

of the European Economic Community represented by its Legal Adviser, Louis de la Fontaine, with an address for service in Luxembourg at the offices of Henri Manzanares, Secretary of the Legal Department of the

European Executives, 2 place de Metz, defendant,

—

of the decision of Mr Van Gronsveld of 11 September 1963 to withdraw from Mr Muller his permission to deputize for Mr Blenkers, the Head of the Salary and Mission Expenses Divsion; —

of the decision of the Commission of 29 July 1963 upon which the

preceding decision was said to be based;

2. Payment of damages to Mr Muller,

THE COURT (Second Chamber)

Mr Charles Muller was engaged by the ment of his duties in this post was re­

Commission of the European Economic corded by a note from Mr Blenkers to the Community, on 1 December 1958, in a personnel department (a note put on

post corresponding at that time to the Mr Muller's personal file), stating in

MULLER V COMMISSION

particular that 'when Mr Muller takes ants to a Head of a Division in career final charge of the missions section, he bracket A/4 — A/5 for Principal will at the same time become permanent Administrators.

deputy to the Head of this Division'. As I have carried out these two duties Mr Muller was integrated on 12 Decem­ permanently since I took up my ber 1962 in Grade B1, Step 6 of the new appointment —

out the duties of a higher grade'. fied as a Principal Administrator in

By a letter of 28 August 1963, Mr Muller career bracket A/4 —

A/5, with

requested that he be graded from 1 retroactive effect from 1 January January 1962, as a Principal Admini­ 1962, on the basis of the provisions of strator in career bracket A/4 — A/5. the Staff Regulations as well as the

This letter contains the following pas­ general regulations implementing the sage: said provisions referred to in this

In the meantime I have been inte­ application.

Staff Regulations). pointment in career bracket A/4 —

This standardizing of career brackets A/5 should not therefore meet with

and the criteria to be used in grading any difficulty on this point.' laid down in Article 5 (4) of the Staff By letter of 18 September 1963 the

Regulations and based on the table President of the Commission replied

showing the basic posts and corres­ that this request would be 'examined in detail'

ponding career bracket in Annex I of and that he would give his the Staff Regulations was agreed by a answer as soon as possible. .

July 1963 Mr Zeilmaker, Head of the You cannot either, when you chal­

Organization Division, will deputize lenge the measures which have been for Mr Blenkers, Head of the Salaries taken, argue that you are the most

and Mission Expenses Division, during senior official in your category and his leave'. carry the highest grade. In fact Mr Van Gronsveld in answer to the two although Article 26 of the internal requests from Mr Muller informed him regulations provides that in the nor­

that' … the Commission, at its meeting mal course of events such an official

on 29 July 1963, decided that in the shall deputize for a senior official who divisions or departments where there is is prevented from performing his

only one post in category A, the deputy duties, this is so only provided that the for the person occupying this post shall, Commission has not taken a contrary under the provisions of the Staff Regu­ decision. Moreover the measures

sary, against the decision of the Com­ publish this

mission of 29 July 1963. II — Conclusions of the parties On 15 April 1964 the applicant lodged his application 13/64 against the implied The applicant claims in his application

decision of refusal of his request of No 109/63 that the Court should: 16 December 1963 arising out of the 1. annul the implied decision of re­

silence of the administration in connex­ fusal of his request of 28 August ion therewith for a period of two 1963; months. 2. annul his appointment to the

On 16 April 1964 the President of the extent that it classified him in Commission answered this request by a Grade B1 at Step 6; X_»3. declarethat heCom is ionmust reclassify the applicant in Grade

letter of which the relevant extract is as 3. declare that the Commission must fol ws: reclassify the applicant in Grade 'I have to inform Com­ you that the A5, step which he is and at the

head of division) which was not issued as he may deem necessary in the

MULLER V COMMISSION

course of the proceedings; attending to his duties"); 6. order the Commission to bear the —

authority of 3 May 1960 granted

heads costs;'

to the other of section

reference to arrears of salary; for the purpose of integrating him; as a subsidiary point, order the —

job allocation plan of 5 March defendant to produce the following 1959 for the Mission Expenses documents: Office; —

payment order of 18 September —

report on the work in the Mission 1959 in accordance with which the Expenses Section of 12 September amount of the installation allow­ 1959, addressed to Mr Blenkers ance calculated is for a servant in and in particular page 3B-a) set­

Grade B 6 step 3; ting out the new tasks; —

instructions given to the applicant —

report of Mr Blenkers of 1 October other expenses which Division 1962 headed "Description of the

1X/A/14 is empowered to dis­ work and the scope of the duties of

charge ; officials in Categories A and B —

in Division ("Beschrei- general authority of 18 August 1X/A/4"; —

1961 delegated to the Salaries and bung der Tatigkeit und des Auf­ Mission Expenses Division to pay gabenbereichs der A- und B Beam- Vertre­ expenses up to 50000 F "in ten der Abteilung 1X/A/4"); tung des abwesenden oder ver­ — description of the tasks of the staff Abteilung" hinderten Leiters der in the missions section, made on

("on behalf of the Head of Division 28 November 1962 specifying the

either the a in mission to deputize for Mr Blen­ creation of post

Grade A 4 or even A 5, or the kers, Head of the Salaries and

upgrading of post B to a post in Mission Expenses Division; Grade A 6 or A 5, because his 2. annul the said decision if it is held duties as assistant to a head of to be based on the decision of the division entitled him to such a Commission of 29 July ­ 1963; grade. 3. declare that the Commission owes As a further subsidiary point, to auth­ the applicant the sum of 1 BF for orize the applicant to adduce evidence non-material damage; bv witnesses proving: 4. order the Commission to bear the 1. Mr Director- Smulders, costs.'

that

General of Administration, assured The defendant submits that the Court him when he suggested that he should:

his letter dismiss in­ should sign of appoint­ '— the appeal as being ment without any reservations, admissible and in all respects un­

vant

The defendant amplifies in its rejoinder Both before and after the entry into the first head of its foregoing conclusions force of the Staff Regulations and, in and submits that the Court should: any case, when the Regulations were

declare that the appeal is inadmis­ applied to him the applicant had by sible to the extent that it challenges implication been accorded Grade A 5, the appointment of Mr Muller as an since he performed duties corresponding

MULLER V COMMISSION

to those in career bracket A4/A5. The cannot entitle him to a grade corres­

applicant relies over and above this ponding to that of an Assistant-Head of argument on the last sentence of Article Division. Even if the applicant's designa­ 102 (1). tion of his duties is correct, the detailed The defendant replies that Mr Muller list of posts of the Salaries and Mission was never accorded by implication Expenses Division, does not include a

brackets and of the criteria to be used in only take place after a competition. grading. Such a decision however has The second head of the conclusions (annul­ not yet been made. ment of annointment to Grade B1) The applicant supports this head of his 2. Infringement of the last sentence of Article conclusions with the same grounds and

5, of Annex I to the Staff Regulations and with the additional argument that the

of the decisions of 29 July 1963 relating to principle of good faith applicable to

the definition of duties and powers time-limits and delays (judgment in Case 18/63 of 19 March 1964, Wollast, judgment Com­ In reliance on the of 19 nee Schmitz) does not allow the

March 1964 (Cases 20 and 21/63, mission to raise the plea that his right to

Maudet) the applicant maintains that bring any proceedings against it is he only has to show that the duties of his barred, because it is the Commission post before the entry into force of the itself which, by belatedly embarking on Staff Regulations and afterwards, are the definition of powers and duties, left those which, according to Annex I to the him completely unaware of his legal Staff Regulations and the definition of rights.

with effect from 1 January 1962 or at practice the legal status of officials is least from 28 August 1963) not only determined by the formalities The applicant rejects the charge that he of the Staff Regulations. The question

is asking the Court to exceed its jurisdic­ is whether Article 26 of the internal tion. He only asks for a decision on the regulations of the Commission can create principle involved. rights or benefits which can only be

The defendant objects that in the con­ extinguished by a special procedure. text of the present proceedings the Court According to the defendant the con­

can only annul a measure and leave it to tested decisions, having regard to their

the Commission on its own responsibility nature and purpose, cannot be the

subject of an appeal under Article 91 of and having regard to the reasons upon which the annulment is based to deal the Staff Regulations. They were not

damages unless the Court holds that its as deputy to his Head of Division was

judgment on the other heads of his con­ withdrawn and no legal interest in such clusions constitutes a satisfactory remedy proceedings. Article 26 of the internal for the applicant. regulations of the Commission does not The defendant replies that the applicant give an official the right to deputize for does not even attempt to prove that the his superior, if he is prevented from failure to act, for which the Commission performing his duties, since it provides is alleged to be responsible, is a wrongful that the Commission shall have the

failure for which the Community is right to designate at its discretion the liable. The applicant is correctly classi­ official who is to deputize. fied in the grade corresponding to the So tar as Article 7 (2) of the staff Regula­ duties which he normally performs. tions provides for the possibility that an

MULLER V COMMISSION

official may be called upon to occupy of the internal regulations. If he can

temporarily a post in a career bracket only be classified in Grade A5 following in his category or grade which is higher a competition or promotion, the periods than his substantive career bracket, it when he acted as a deputy should be (Opinion Advo­ does not confer a right upon the official taken into account of

modification or decrease by the appoint­ vented from attending to his duties.

ing authority at its discretion of those duties for reasons based on the interests The substance of the service. Deputizing for a superior who is prevented from attending to his First submission: Lack of authority (Mr duties could not be regarded as one of Van Gronsveld, acting Director General the inherent duties of the post occupied of Administration, not authorized to

by anv subordinate official. take the decision notified to the appli­

T he applicant replies that the argument cant on 11 September 1963) centres precisely ascertaining the on

scope of the exception in Article 26 of According to the applicant no decision the internal regulations ('unless the taken pursuant to item VC3 of the

Commission deci­ 238th shall take a contrary minutes of meeting of the the

placed in Category A, and thus fulfil the tioned in the decision of 29 July 1963. requirements of Article 26 of the internal The defendant replies that it was not a regulations. decision of Mr Van Gronsveld but the The applicant puts forward an addi­ decision taken by the Commission at its tional argument on the question whe­ 238th meeting of 29 July 1963 which

ther he has any legal interest in meant that the applicant (classified in

requesting the application of Article 26 Category B) could no longer act as

JUDGMENT OF 16.12.1964 — JOINED CASES 109/63 AND 13/64

deputy for the Head of the Salaries and his duties and powers. This factor Mission Expenses Division. The de­ adversely affects him his grade, in as

fendant maintains that by the measure accordance with Article 102 and the taken Mr Van Gronsveld in­ last sentence of Article 5 of the Staff simply formed the applicant of the designation, Regulations, depends upon the duties to the decision of the Com­ he performs. The de­ pursuant which actually mission of 29 July 1963, of Mr Zeilmaker fendant replies that the applicant was

replies before the entry into force that Second submission: Infringement of an of the Staff Regulations there was no essential procedural requirement (EEC appointing authority. He continued to infringe­ Treaty, Article 162 (2)) and act as assistant to the Head of Division ment of Article 26 of the internal regula­

with the full knowledge of the most tions of the Commission senior officials of the Commission and

therefore with their consent.

The applicant, while admitting that the The defendant s answer to this is that it decision of 29 July 1963 is a general was only force of circumstances which

decision, submits that it should have caused the applicant to deputize for a

been taken in the same form as in the specific period for his superior whenever internal regulations, because it departed he was absent (cf. Case 109/63). from the provisions of Article 26 of the The applicant is of the opinion that

29 July 1963 is not a departure from advantages attaching to that grade and Article 26 of the internal regulations. It in particular the right to deputize for a neither amends nor adds to it. It did not superior does not constitute an un­

therefore have to be published in the reasonable application of the principle

Official Journal. of vested rights. The defendant replies that, even if the applicant had undertaken to deputize Third and fourth submissions: infringement for his superior as part of his permanent of vested rights and misuse of powers duties he could not assert any vested

right to continue to act as deputy. Since The applicant refers to his arguments in Regula­ the entry into force of the Staff Case 109/63. The contested decision tions the conditions of service of officials

fails to acknowledge his right to retain have been governed entirely by them.

MULLER V COMMISSION

During the oral procedure he expressly discontinued the applications in so far as they were directed against the Community as such.

Joined Cases 109/63 and 13/64 must therefore be regarded as applications against the Commission of the European Economic Community alone.

Application to annul the decision of the Commission of 12 June 1962 classifying Mr Muller in Grade Bl, Step 6

The applicant first asks the Court to 'declare that his appointment is null and void in so far as he was classified in Grade B1, at Step 6'.

This application therefore only asks for the annulment of that part of the decision taken by the Commission on 12 June 1962, notified to the applicant on 18 December 1962, which, after integrating him, classified him in Grade Bl, at Step 6.

However Mr Muller's complaint to the administration was made by a letter of 28 August 1963. The resulting application to the Court was lodged on 23 December 1963. According to the provisions of Article 91 of the Staff

must reclassify him in Grade A5 and at the step to which he is entitled, with effect from 1 January 1962, or at least from 28 August 1963 …'.

In addition, in his letter of 18 August 1963 he had requested 'to be classified

as Principal Administrator in career bracket A4 — A5, with retroactive effect from 1 January 1962. The failure by the Commission to make a decision as to this request by the expiration of the period laid down by Article 91 of the Staff Regulations constitutes an implied decision to refuse the request.

The Commission was not required, unless important new facts arose, to reconsider a decision which could no longer be contested. In this case the

applicant regards as a new fact of such a nature the decision of the Com­ mission of 29 July 1963 drawing up the table which defines the duties and powers attaching to each post and which was notified to the staff in the Staff Information Bulletin of the Commission of the EEC No 54 of 2 October 1963. In support of his application the applicant quotes the definition in this table of the duties of Principal Administrator which he considers applies to his post and therefore justifies a revision of his gradings.

The publication of this table could in fact be regarded as a sufficiently important new fact to enable the applicant to request the Commission to

In the first place the appointing authority did not allocate to Mr Muller the duties of assistant to a head of division. Further, the documents in the case do not indicate that the applicant helped, assisted or deputized for the Head of Division on a permanent basis.

The applicant does not, moreover, appear to have occupied the post of one

activity in a division or to have been engaged in planning particular sector of

duties. Although it is important to ascertain the duties assigned to him by

MULLER V COMMISSION

examining the services he rendered, he does not on this basis appear to

Finally, the applicant has had produced a document in which the Com­ mission, in order to justify an application to the Council of Ministers for a budget appropriation for 1964, expressed its intention to regard the appli­

cant's duties as falling within category A.

Such an internal administrative document, however, intended to cause the

budgetary authority to improve the organization of a department, cannot by itself constitute legal recognition of the right of the applicant to the post referred to.

It emerges from all these facts that the Commission has not infringed any provision by refusing by implication the request of the applicant for reclassi­

fication and that the Commission was under no obligation to classify him in Grade A5.

JUDGMENT OF 16.12.1964 — JOINED CASES 109/63 AND 13/64

General of Administration, notified Mr Muller that pursuant to the decision of the Commission of 29 July 1963 (P.V. p. 238), the task of deputizing for Mr Blenkers, the Head of the Salaries and Mission Expenses Division, would be carried out during his leave by Mr Zeilmaker, Head of the Organization Division. The applicant submits that the decision contained in this note is null and void.

However, the note of Mr Van Gronsveld to Mr Muller is merely the applica­

tion to Mr Muller of the decision of the Commission. As there is no complaint

against this notification as such, independently of the decision which it merely implements, this claim must be dismissed.

The application to annul the decision of the Commission of 29 July 1963

The claim for payment of one Belgian franc for non-material damage

The claim for payment of one Belgian franc for non-material damage therefore appears to be itself inadmissible.

Costs

The applicant has failed on all the heads of his conclusions and must there­ fore be ordered to bear the costs, with the exception of the costs of the

Commission, in accordance with Article 70 of the Rules of Procedure.

On those grounds,

European Communities, especially Article 69,

THE COURT (Second Chamber)

her by:

1. dismisses Joined Applications 109/63 and 13/64 as being inadmissible or unfounded;

2. orders the applicant to bear the costs, with the exception of

the costs of the Commission.

Legal consideration 680

I — Case 109/63 680 1. Designation of the defendants 680 2. The first claim 680

(a) Does Article 102 oj the Staff Regulations justify the

applicant's claim to be regraded? 680

1 — Translated from the German.