C-46/64

parties and to the persons directly concerned by the measure annulled — Judgment

constituting a new fact — Concept Cf. paragraph 4, summary in Case 43/64.

In Case 46/64

GÖTZ SCHOFFER , an official or the European Economic (community, residing at 147, Madoux, avenue 15, assisted by J. Mechelinck, advocate at Brussels the Cour d'Appel, Brussels, with an address for service at the Chambers of

Ernest Arendt, advocate at the Cour d'Appel, Luxembourg, 27, avenue Guillaume,

applicant,

Application for the annulment of the decision rejecting the applicant's request dated 19 June 1964 concerning his grading, being a decision implied from the fact that no reply was given within two months of that date;

THE COURT (Second Chamber)

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

1 — Language of the Case: French.

JUDGMENT OF 14. 7. 1965 — CASE 46/64

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

General of External Relations of the 'to dismiss the application as inadmis­

EEC, and was classified in Grade A4. or as sible, alternatively unfounded, A decision of 21 December 1962 estab­ and to order the opposite party to bear lished him in this grade as from 1 the costs in accordance with the rele­

January 1962. vant provisions'.

By letter dated 19 June 1964, he lodged with defendant a request based on Article 90 of the Staff Regulations III — Submissions and argu­

of officials of the EEC and of the ments of the parties

EAEC to foe classified in Grade A3 as

The applicant, in his application, duties attaching to each basic post requests the Court: (hereinafter called the 'table of defini­ to annul the implied decision of rejec­ tions').

tion taken by the Commission of the (a) The judgment of 19 March 1964 in EEC concerning the applicant—being a the Maudet case (Rec. 1964, p. 219 et

decision resulting from the fact that no seq.) cannot foe considered as a new

reply was given to the request made fact capable of reviving the right of

on 19 June 1964 within two months action. This was the case in which the

and to that the Com­ Court recognized that servant say every thereof—­

judgment was given in the Maudet case — the force of res judicata of the said no official could be expected to take judgment only applies to the parties

to the dispute in that case; the risk of bringing proceedings. At the time of the request of 19 June 1964, —

unlike the present case, in the the decision of the defendant on the Maudet case the level of the duties depart­ grading of a series of heads of performed by the person concerned ments in application of the principle in was not in dispute; the Maudet judgment had not yet been — tnerefore the applicant cannot rely taken. on the fact that after the judgment as to The appointment of Mr (b) in the Maudet case the defendant first Stefani was the act by which the regraded a number of officials who, defendant acknowledged that the duties like Mr Maudet, had been left in of an assistant to a Director-General grades which were undeniably lower come within Grade A3, and was also than the grade corresponding to their the first act whereby it applied the rules respective posts. Besides, even in the adopted at the meeting of 27 and 28 case of those officials, the defendant November 1962. only acted by virtue of a moral

obligation. 2. The substance of the case

(b) The decision of 9 June 1964 where­

A — Submissions and arguments of the by the defendant appointed Mr Stefani, applicant assistant to the Director-General of

it met on 27 and 28 November 1962, are Directors-General;

namely of 'taking decisions on the —

during tne summer, as is snown by grading of assistants case by case for the 'the lists of responsible officials

future'. Moreover the said appointment present during the summer recess

was not the first application of this from 1959 to 1964; principle. the Director- — inmany cases, when The applicant argues first that me General is absent. obligation of the defendant to grade its (b) According to the table or definitions, officials in accordance with the duties such duties correspond to career bracket which they perform is not limited in A3 and not to career bracket A4/5. time. At all events the time-limit for — such an assistant is not comparable

bringing an action could not have ex­ with an assistant to a Head of

body of the institution'; 'giving advice in Grade A3 must also depend on the

and support to the Director-General availability of an A3 post in the

constitutes the substance of his duties Directorate-General concerned. in the service'. B — Submissions and arguments of the — He is a highly qualified official .

defendant The applicant argues in detail that

'the Commission has always judged As to (a) The defendant agrees in the position of assistant to a general with the way in which the

Director-General highly, and has not applicant describes his duties, but it rated it in order of importance below does not agree that the assistant may the position of a Head of Division be called upon to represent his Director- or Adviser'. General. When the latter is absent the

justifying such a difference. This body which holds meetings for the pur­

arbitrary practice shows that the present poses of information and for discussion. application is well-founded even apart Furthermore the applicant cannot use

from the fact that the grade should the fist relating to the long vacation

correspond to the post. The definition because 'he never appears in it as a

basic for Director- of posts required by Article 5 temporary substitute the of the Staff Regulations would lose all General'. meaning if the same duties could be As to (b) 'By reason of its special

classfied differendy. It is even a fact nature, the post of assistant cannot be that not long ago the ratio of assistants . . . integrated in a rigid and uniform framework' in A3 and assistants in A4/5 was 5 manner into the of the

in career bracket A4/5, and

favoured colleagues. it confirmed this decision on 27 and

The truth is that the differences at issue 28 November 1962 when it was express-

SCHOFFER v COMMISSION

ly agreed that it would not be which cannot easily be defined in changed. advance, and which relate to the very If it be necessary to attempt to find a nature (extensive, new, specialized) of

correlation between the dudes under the areas of activity entrusted to the

Nor can the applicant lay claim to the of the persons concerned had been tide of 'Adviser'. 'The description of classified in Grade A3 before they were "Adviser" applies to officials whose established and thus had to be kept activities are comparable with those of a in this grade by virtue of Article 102 highly Staff Regulations. As the expert'

qualified whereas the of the regards

duties which the applicant performs in assistant to the Director-General of

this respect do not go beyond the Transport, a number of departments, requirements of Article 21 of the Staff several of them placed under the

Regulations Principal Admini­ according to which an responsibility of

official, whatever his rank, shall assist strators, come under the authority of

The difference is justified 'because the A3 gradings would be illegal. duties attached to the post of an

assistant are variable in nature and in IV — Procedure extent in the different Directorates-

General, the structure and tasks of The procedure followed the normal

which are also variable'. course.

It is open to the defendant to assign The oral arguments of the parties took

to an assistant other and wider duties place before the First Chamber on 19 alongside those which normally are March 1965. allocated to him. The defendant may do The Advocate-General delivered his

JUDGMENT OF 14. 7. 1965 — CASE 46/64

(a) The present application is brought under Article 91 (2) of the Staff Regulations of officials of the EEC and of the EAEC against the implied

decision, to be inferred from the absence of an express decision, rejecting the request made by the applicant on 19 June 1964 to be classified in Grade A3

as from 1 January 1962. An analysis of the said implied decision shows that

it confirmed the decision taken on 21 December 1962 whereby the applicant was integrated under the Staff Regulations, and appointed an official in Grade A4. It is not disputed that the applicant lodged neither an administrative

complaint nor an appeal to the Court against this latter decision within the

stitute a new factor as regards those persons.

It is not contested that the judgment in Cases 20 and 21/63 annulled a

decision of the Commission of the EEC refusing to regularize the position

of the party concerned in accordance with the principle that duties should

correspond to the grades set out in Annex I to the Staff Regulations of

officials. Since this decision only dealt with the individual position of the

is contrary to statements made by the applicant himself. It is therefore un­

necessary to examine the premise according to which such a decisive change constitutes a new fact enabling the period for lodging an appeal to start to

run afresh. First of all it is in fact clear from the allegations made by the two parties that in making the said appointment the defendant did no more

than apply the criteria which it had adopted in a decision of principle adopted in November 1962 and according to which it would thenceforth

decide 'from case to case on the grading of assistants'. Furthermore the appli­

cant has himself claimed that during recent years and amongst the assistants in Grade A3 has de­ to Directors-General the number of officials classified

those incurred by the defendant.

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 Rules of Procedure of the Court of Justice of the

European Communities, especially Articles 69 and 70;

Having regard to the Staff Regulations of officials of the European Economic Community and of the European Atomic Energy Community, especially Article 91,

Donner Strauß Monaco

Delivered in open court in Luxembourg on 14 July 1965.

A. Van Houtte A. M. Donner

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL GAND <ap note>1</ap note> DELIVERED ON 16 JUNE 1965­

Mr President, being classified in Grade A3. And, Members of the Court, relying on the principle established by you in the Maudet judgment of 19 Mr Götz Schoffer was engaged by the March 1964, he asked to be reclassi­

Admissibility was maintained in his previous duties and was established with effect from 1 Both in the written procedure and dur­

January 1962 in Grade A4, Step 2. ing the oral proceedings, the defendant Notice of the decision to this effect institution has raised the objection of

him latest in Feb­ was given to at the inadmissibility against the applicant say­

ruary 1963. ing that his application calls in question On 19 June 1964 he submitted a request a classification which, not having been to the Commission based on Article 90 contested in due time, was already of the Staff Regulations. He maintained finally settled when he made the request that the nature of the duties of assis­ of 19 June 1964. The implied decision tants of Directors-General justified their of rejection, which came about through

1 - Translated from the French.