C-28/64

Application concerning the implied refusal by the Secretary-General of the Councils of the request of the applicant to be classified in Category A as from 1 January 1962,

THE COURT (Second Chamber)

composed of: A. M. Donner, President, W. Strauß and R. Monaco (Rapporteur), Judges,

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

gives the following

MÜLLER v COUNCIL

I — Summary of the facts 2. Order the Secretary-General of the Councils of the European Communi­ The facts may be summarized as ties to pay the costs.' follows: In reply he modifies his conclusions in Mr Richard Müller was engaged on 31 the following manner: August 1959 as a contractual official in '1. Order the defendant to take a decis­ the Secretariat of the Councils of the ion that the applicant shall be classi­ European Communities. He was inte­ fied in Grade A 3 as from 1 January grated in Grade B 2 as from 1 January 1962; 1962 under Article 102 (1) of the Staff 2. Order the defendant to pay the costs. Regulations. He was then promoted to The conclusions of the application Grade B 1, first as from 1 October are maintained in the alternative.' 1962 and subsequently as from 1 January 1962. The defendant contends that the Court should: On 9 April 1964 the applicant sent a 'Declare the application inadmissible or, request to the Secretary-General of the Councils for his classification in one alternatively, unfounded and order the of the grades of career bracket A 5-A 4 costs to be paid by the applicant to as from 1 January 1962. the extent to which they are not pay­ able by the defendant under the pro­ Having received no reply by 9 June visions of Articles 70 and 95 (1) of 1964, the applicant made the present the Rules of Procedure.' application on 2 July 1964. By a letter of the same day, the Secretary-General dealt with the question raised by the III — Submissions and argu­ applicant by rejecting his request of 9 ments of the parties April 1964. The submissions and arguments of the parties may be summarized as fol­ II — Conclusions of the lows: parties The naming of the defendant as a party The applicant claims in his application that the Court should: The defendant first draws the attention '1. Annul the decision of the Secretary- of the Court to the fact that the appli­ General of the Councils of the Euro­ cation was directed against the Secre­ pean Communities which follows by tary-General of the Councils, whereas implication from the expiration on it should have been brought against 9 June 1964 of the time-limit laid the Councils of the EEC and the down in the second indent of Article EAEC. 91 (2) of the Staff Regulations of The applicant raises the objection that the European Economic Community the argument that officials of the Secre­ and of the European Atomic Energy tariat of the Councils, who are officials Community rejecting the request of of the EEC and the EAEC, should the applicant concerning his classi­ make their applications against the fication, as from 1 January 1962, Councils of those Communities, and in one of the grades of career bracket the officials of the said Secretariat, who A 4 - A 5 of Category A; are at the same time officials of the

ECSC, against the Special Councils General. The Councils, as well as the of Ministers, is hardly reasonable and, common institutions, are in fact ob in addition, raises problems with re liged to fulfil their obligations, even if gard to the execution of a judgment these arise not from the three Com of the Court given against the Councils munities at the same time, but only of the EEC and the EAEC, or against from certain of them. the Council of the ECSC, taking into The defendant states finally that the account the fact that the Councils of incorrect naming of the defendant need the three Communities are, from the not necessarily be regarded as a cir financial point of view, a 'common cumstance resulting in the inadmiss institution'. ibility of the application, and it sub Futhermore, since under the terms of mits to the wisdom of the Court to Article 90 of the Staff Regulations, a deal with the inferences which may be complaint is addressed to the appoint drawn from the situation. ing authority, the appeal provided for

By a de Regulations describes the appointing cision of 17 January 1963, he was in authority as the party against which tegrated under the Staff Regulations any complaints should be made, and in Grade B 2; by a decision of 28 that the Secretary-General exercises the March 1963, he was promoted to Grade functions of that authority in respect of B 1 as from 1 October 1962. Accord the majority of the officials of the Secre ing to the objections made at the time, tariat, it is also undeniable, on the one the applicant complained, in the first hand, that in deciding to establish the case, of not having been classified in applicant, the Secretary-General acted on Grade B 1 and, in the second case, of behalf of the Councils and, on the other having been promoted to that Grade hand, that only the institutions can have only as from 1 October 1962 and not the capacity to be defendants before the as from 1 January 1962.

June 1963 implied for him until after tion of a judgment from the fact that the decisions of the Councils adopting the Councils themselves are the de the definition of duties and powers fendants, and not their Secretaries- within the meaning of Article 5 (4) of

the Staff Regulations, it should be the Staff Regulations). As the defini noted that this decision was brought to tions of the duties and powers the knowledge of the staff on 15 Octo attaching to each basic post were ber 1963 and that, at least from this not settled by then, the question of date, the applicant was in a position his classification in accordance with to know that a decision adversely affect Article 5 of the Staff Regulations ing him had been made. The applicant and Annex I thereto was put aside did not, in this case either, bring an sine die and was left for later con appeal or lodge a complaint within the sideration. prescribed time-limits. (b) The request of 19 April 1963 was Against these arguments, the applicant satisfied by a decision of 21 June 1963. advances the following arguments in Consequently, neither this decision, nor particular: the previous decision of 28 March 1963 (a) He never indicated that he con which was partly modified by it, was sidered that he had suffered damage as capable of adversely affecting the appli a result of his classification in Grade cant, whether in respect of the date on B 2 by the decision of 17 January which his promotion to Grade B 1 took 1963, anticipating his integration with effect or as regards the 'settling of his in the Staff Regulations, all the more position under the Staff Regulations'. so as the 'automatic' classification con

lude, do not raise complaints on this promotion which clearly is not one to subject. which the person concerned has a In fact: right. — in his letter of 5 June 1963, addres For all these reasons, the argument of sed furthermore to the Director- the defendant that the applicant failed General of Administration and not within the time-limit of three months to the appointing authority, the ap to show his dissatisfaction 'concerning plicant criticized the decision on his position thus settled under the Staff integration to the extent that it put Regulations' cannot be accepted. him in a step lower than that to (c) Nor, furthermore, can the claim be which he was entitled on the basis accepted that the applicant failed to

Nevertheless, on the one hand, the cant asked that the date on which definitions of duties is not an act hav his promotion was to take effect ing adverse effect and, on the other should be fixed at 1 January 1962 hand, the irregular nature of his clas (the date of the entry into force of sification in relation to those definitions

and to Annex I to the Regulations fol­ from the day on which the definitions lowed not from a decision taken by of duties had been adopted was suffi­ the Secretary-General adversely affect­ cient to revise his classification, and ing the applicant, but from the absence that is why he submitted his complaint of a decision leading to his reclassifica­ on 9 April 1964. tion. In these circumstances, no act The objection raised by the defendant adversely affecting him within the that the period of limitation has ex­ meaning of Article 91 of the Staff pired is thus completely unfounded. Regulations existed in the present case, In the rejoinder, the defendant states and the time for bringing an appeal as follows: did not begin to run. (a) Or the three decisions relating to In addition, no provision of the the applicant in 1963, the last (21 Staff Regulations stipulates that the June 1963) is doubdess to be con­ person concerned must lodge his com­ sidered as settling the classification of plaint within a time-limit of three- the applicant in Grade 1, as from 1 months. The appointing authority, when January 1962. The fact that this de­ required to decide upon a complaint cision had the effect of back-dating the based on Article 90 of the Staff Regu­ coming into effect of the applicant's lations, cannot in any case reject this promotion to Grade B 1 does not avoid request on the ground that it has been the position that by confirming him raised too late. The authority only has in this grade and not in Grade A 5 the power to refuse to give effect to or A 4, it necessarily adversely affected a right claimed in respect of the period him with regard to his classification. which has expired to the extent to — It is undeniable that a complaint which a time-limit applies, whilst no within the meaning of Article 90 of the time-limit may under the Staff Regu­ Staff Regulations may be made at any lations be set against the claims ad­ time. Nevertheless, an appeal cannot vanced by the applicant. be made after the expiration of the (d) In a supplementary memorandum prescribed time-limits unless the appli­ accompanying the reply, the applicant cant has made a complaint within the mentions that he had notification on 8 three months following the decision October 1964 of the decision of the adversely affecting him (cf. judgment Secretary-General of 18 July 1964, pro­ of the Court in Case 69/63). It is viding for his classification in Grade necessary in fact to prevent an official B 1, taking into account the definitions from being able to question his clas­ of the duties and powers attaching to sification throughout the duration of each basic post. This decision must his active service, and being able to therefore be regarded as terminating cause the strictly-prescribed period for the integration procedure and is suffi­ lodging an appeal to start to run afresh cient evidence that 'the settling of the by making a complaint at any time applicant's position under the Staff under under Article Ar ticle 90 90 of of the the Regulations. Regulations.

tion is inadmissible under Article 38 — that, after the implementation of the (1) of the Rules of Procedure. It can Financial Regulation concerning the not be examined in the light of Article preparation and execution of the 42 (2) of those Rules, because that various parts of the budgets relating Article does not apply to cases such to the common institutions and to as the present one. the Councils, he was made a finan cial comptroller on 20 December The substance of the case 1963, within the meaning of Article After recalling that the definitions of 25 of the same Regulation; the duteis and powers attaching to each — that, in carrying out his duties, he post is, together with Annex I to the is independent in the sense that he Staff Regulations, the basis on which is not under instructions coming the classification of officials rests, the from immediate superiors; applicant asserts that the appointing — that the supervision which he carries authority of the Councils should, once out covers acts of officials Who be those definitions had been adopted, have long mainly to the highest cate re-examined the classification of ser gories (A 1, A 2, A 3 and A 5). vants which had been made under the On the basis of these details, the ap transitional provisions (Article 102 (2)) plicant maintains that the post which or of promotions made on the basis of he holds does not correspond to execu Article 45 of the Regulations.

By his classification be revised to conform analysing in particular the definitions of with the foregoing rules as from the the duties attaching to posts in career entry into force of the Staff Regula bracket B 1 (the explanations given on tions. this subject apply equally to posts in The applicant next describes the origin, career bracket B 3-B 2) and in career the nature and the characteristics of brackets A 7-A 6 and A 5-A 4 the his duties. He points out to this end: applicant stresses in the application that — that by a decision of the Secretary- his duties are those of a post in career General of 1 November 1961 he was bracket A 5-A 4. put in charge of checking expendi The defendant disputes, on the other ture both as regards liabilities en hand, that the applicant's duties were tered into and orders to pay, as administrative and advisory duties re provided for in Article 25 of the quiring university education or equiva Financial Regulation concerning the lent professional experience (Category preparation and execution of the A). In the opinion of the defendant, budget of the EEC and of the opera they correspond to executive duties ting budget of the EAEC, and the which require an advanced level of responsibility of auditors and ac secondary education or equivalent pro countants (Annex I to the applica fessional experience (Category B). tion); In support of this assertion, the de-

fendant points out in its statement of to executive duties (Grade B). The defence that the Staff Regulations Member States also have cases where themselves do not expressly classify officials lacking in university education supervisory duties in Grade A or B. or equivalent professional experience The definitions of duties adopted by carry out within limited fields the task the Council does not, furthermore, al of checking in that way conformity low of an a priori classification of posts between facts and rules of law (for which entail supervisory duties in a example the case of the 'Rechtspfleger' particular category.

Article 31 of the applicant on the basis of the particular Financial Regulation and Article 206 characteristics of the post provided for of the EEC Treaty). Neither does he in Article 25 of the Financial Regula consider the 'legality' of the expendi tion. ture, but confines himself to checking It appears from Articles 30, 31 (a) and its 'conformity' with the provisions ap (b) and 40 of that Regulation that the plicable to the matter, which appears duties which this post entails consist of to indicate that he should primarily purely formal financial supervision and exercise supervision not on a legal basis, relate to financial technique. In order but upon that of financial technique. to determine whether these duties re- In addition the fact that, in the exer quire a university level of education, cise of his duties, the applicant is not reference should be made to Article subject to orders is not capable of 31 (c) according to which a financial corroborating the arguments of the comptroller is required to check 'the opposing party. On the one hand, it is

MÜLLER V COUNCIL

Lastly, the supervision carried out by tion and in any case the supervision the applicant bears not only upon a carried out by the financial comptroller part but upon all the duties of author bears only upon the clearly defined izing officers and the sphere of his field of the activity of the officials duties is not as confined as the de authorized to pass the accounts. fendant believes, since it implies the In the reply, the applicant points out taking into consideration of all the that the term 'supervising' contained in provisions applicable by an adminis the definitions of the duties relating to trative body, including those of the career bracket B 1 is translated in the Staff Regulations which alone account German version by the word 'Über for approximately 65% of the total wachung', from which it would follow expenditure of the Councils.

of the analysis of the duties applying to them, conference set up on the occasion of (reply pp. 13 to 20), that the argu the negotiations for the entry of the ments of the defendant that a financial United Kingdom into the Common comptroller would not examine 'good Market. Still by way of comparison financial management', would not con but nevertheless without having in view sider the 'expediency' of the expendi posible harmonization measures within ture and would exercise supervision not the meaning of Article 102 of the Staff of a legal order are false or inadequate. Regulations, the applicant refers to the He points out in particular that the classification which was given to the competence of a financial comptroller to financial comptrollers in the other Com consider whether financial resources munity institutions, particularly at the have been used according to the 'prin EAEC Commission and at the Euro ciples of good financial management' pean Parliament. comes from the actual wording of He finishes his reply by mentioning Article 2 of the Financial Regulation. the reasons for which he modified the Furthermore, the distinction between conclusions in the application, so that technical supervision and legal super in this statement he asks as his main vision in the present case is unjustified request to be classified in A 3.

JUDGMENT OF 7. 4. 1965 — CASE 28/64

upon his duties is linked to the ques­ the nature of the duties of the appli­ tion whether financial supervision is cant who is required to consider the the responsibility of the Director-Gen­ conformity of certain facts with legal eral, a Director or a Head of Division rules and who carries out his super­ (the subordination to one of these vision over a small sector of the acti­ superiors not implying however that vities of the officials who are authoriz­ they give him orders as to the exercise ing officers. of his duties), that is to say if, in the In respect more particularly of the definitions of the duties, his post is scope of the supervision carried out by a post in career bracket A 3 or a post the applicant, the defendant admits that in career bracket A 5-A 4, he explains the rules of the Staff Regulations are that at the time when he brought his also taken into account by the comp­ action, he did not know who his im­ troller, but nevertheless disputes that mediate superior was, so that he had the latter may base himself, in the considered that his post ought to be exercise of his duties, 'on all of the at least a post in career bracket A 5- provisions applied by an administra­ A 4. It appears from the 'note to the tive body'. The application of many of staff' of 29 June 1964, which was given the rules is in fact removed from his

to him after the application was lodged, power of supervision, since that is that the applicant works directly under exercised only in respect of a body of Mr Markull, the Director-General, who, rules which are well defined by reason according to the list drawn up by the of their financial nature.

in its statement of defence concerning On hearing the report of the Judge-

MÜLLER v COUNCIL

Rapporteur and the opinion of the February 1965 as the date of opening Advocate-General, the Second Chamber of the oral procedure. of the Court decided not to undertake The Advocate-General delivered his any preparatory inquiry and fixed 3 opinion on 17 March 1965.

Grounds of judgment

The naming of the defendant as a party

The applicant has directed his application against the Secretary-General of the Councils of the European Communities, considering that since, under the terms of Article 90 of the Staff Regulations, a complaint must be addressed to the appointing authority the appeal provided for in the following Article must also be brought against the said authority in the absence of express provisions to the contrary.

JUDGMENT OF 7.4. 1965 — CASE 28/64

For all these reasons, this application must be regarded as being directed against the Councils of the EEC and EAEC to which the applicant belongs.

Admissibility

1. The defendants maintain that this application is out of time, on the ground that the complaint put forward by the applicant arises from the earlier decisions of 28 March 1963 and 21 June 1963, promoting him to Grade B 1 as from 1 January 1962.

Further, as the decision of the Councils adopting the definitions of the duties and powers attaching to each post, within the meaning of Article 5 (4) of the Staff Regulations, was brought to the attention of the staff on 15 October 1963, the applicant was in a position, from this date at least, to realize that a decision affecting him had been taken.

Since the applicant neither made an appeal nor submitted a complaint against those decisions or the abovementioned definitions within the prescribed time- limit, it is claimed that he is time-barred.

If the contrary were the case, it would be permissible for any official to thwart the intention of the authors of the Staff Regulations, clearly expressed in the wording of those Regulations, to limit the period of time during which the legality of an administrative measure may be questioned.

It has been established, however, that the decision applying the definitions of duties adopted by the Councils in the case of the applicant was not made until 18 July 1964 and was not made known to him until 8 October 1964.

In view of this belated application of the said definitions, the defendant can­ not raise the objection of inadmissibility on the ground that time has run out against the applicant's application, which was made on 2 July 1964 and thus prior to its own decision.

Although the application of 2 July 1964 was premature, as the Councils had not yet arrived at their decision by that date, it was validated by the subse­ quent decision adopting the attitude in dispute.

Consequently in the circumstances of the present case the objection of in­ admissibility must be rejected.

2. In addition, the applicant modifies in the reply the conclusions set out in the application in which he requests principally to be classified in Grade A 3.

He maintains that the post which he holds corresponds, according to this table, to that of financial comptroller, the duties of which fall within career bracket A 5 - A 4, or even within Grade A 3.

He points out for this purpose that the duties which he carries out correspond to administrative and advisory duties within the meaning of the second sub­ paragraph of Article 5 (1) of the Staff Regulations, requiring university education or equivalent professional experience.

Thus the appointing authority, by its refusal to confer upon him the grade corresponding to those duties and by classifying him in Grade B 1, has infringed Article 5 (4) of the Regulations and Annex I thereto, as well as the above-mentioned decision of 21 June 1963.

The applicant carries out the duties of financial comptroller, under Article 25 of the Financial Regulation of the three Communities, which entered into force on 1 January 1963.

The reference to supervisory duties appears in this table both with reference to posts in Category A and to those in Category B.

In these circumstances, the table of the definitions of duties does not by itself make it possible to decide to which category the supervisory duties exercised by the applicant belong.

It may be inferred, therefore, that the duties of a financial comptroller as laid down in the Financial Regulation do not necessarily require knowledge of a university level or equivalent professional experience.

Moreover the facts and legal considerations submitted for consideration by the Court are not such that it emerges clearly from them that the duties of checking or supervision entrusted to the applicant are in the present case so far-reaching that they require such knowledge or equivalent professional experience.

Further, the independence enjoyed by the applicant in the exercise of his duties and the possibility for him to exercise supervision over acts carried out by officials classified in very high grades are an indispensable requirement for the exercise of supervisory activities, but they give no indication of the quality and nature of the supervision carried out in the present case.

The fact that the applicant is placed directly under the authority of a Director-General who is at the same time his reporting officer is not decisive, for it is a characteristic of a financial comptroller to have the advantage of considerable independence in the exercise of his duties.

Lastly, the favourable reports made in respect of him by his Director-General involve a value judgment concerning his ability and his competence in the exercise of his duties, but do not enable the nature of the latter to be deter­ mined for the purpose of their classification.

For all these reasons it does not appear that the duties exercised by the applicant necessarily correspond to administrative and advisory duties as defined in the second subparagraph of Article 5 (1) of the Staff Regulations.

However, under Article 70 of the Rules of Procedure, costs incurred by the institutions in applications by servants of the Communities shall be borne by the institutions.

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 Protocol on the Statute of the Court of Justice of the European Economic Community and 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; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70;

THE COURT (Second Chamber)

hereby:

1. Dismisses Application 28/64 as unfounded;