C-48/64

(Staff Regulations of officials of the EEC, Article 5)

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

1. Cf. para. 1, summary, in Case 10/64, 2. Cf. para. 2, summary, in Case 10/64, [1965] E.C.R. [1965] E.C.R.

In Joined Cases 48/64 and 1/65

CLAUDE BRUS, an official of the Commission of the European Economic Community, of 26 rue de Décembre, Woluwé-Saint-Lambert, represented and assisted by Marcel Grégoire, Advocate of the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 boulevard de la Grande-Duchesse Charlotte, applicant,

v

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

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

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts obtaining his reclassification in the career bracket of Principal Admini­ The applicant entered the service of the strator, Grade A5, as from 1 January Commission on 1 October 1958. He 1962. By letter of 18 September 1963 was classified in Grade B8, Step 4, and the President informed the applicant was later reclassified in Grade B6, Step that his request was being thoroughly 2, as from 1 March 1960. He had pre­ examined. On 21 May 1964 the appli­ viously been employed by the Société cant informed the President that he nationale des chemins de fer français had not yet received a reply from the (the French State Railways) where since Commission and asked to be informed 1 October 1954 he had carried out the whether this lack of response should duties of group leader, which were clas­ be considered simply as a rejection of sified in the public service in the cate­ his request. On 15 July 1964 the gory of 'executive', treated as equivalent Director-General of Administration to Category A in the public service. By replied to him that the problems raised an appointment of 12 December 1962 by this request for reclassification were the applicant was appointed an official still under consideration and that he of the EEC, established in Grade B1, hoped to notify him shortly of the Step 3, and assigned to a post in the decision which he believed the Com­ Directorate-General of Administration, mission would take. On 29 October Personnel Department, Salaries and 1964 the applicant lodged Application Missions Division. 48/64, asking for the annulment of the On 4 September 1963 the applicant implied decision of refusal of the Com­ submitted a request to the President mission. By letter of 13 November 1964 of the Commission under Article 90 of the President of the Commission notified the Staff Regulations with a view to the applicant of the decision taken by

the Commission in response to his the extent that it rejected the complaint. On 7 January 1965 the applicant's request and refused to applicant lodged Application 1/65 re­ integrate him in Grade A5, with all questing the annulment of this express the legal consequences thereof, as decision of refusal of the Commission. from 1 January 1962. The defendant contends that the Court should: II — Conclusions of the 1. Declare Application 48/64 to be parties inadmissible; 2. In any event, dismiss Applications The applicant claims that the Court 48/64 and 1/65 as being without should: foundation; 1. Annul the implied decision of the 3. Order the applicant to bear the costs Commission of the EEC so far as in accordance with the relevant it by implication rejected the appli­ provisions. cant's request and refused to inte­ grate him in Grade A5, with all the III — Submissions and legal consequences thereof, as from 1 January 1962; arguments of the 2. So far as is necessary, annul the parties defendant's decision of 12 December On admissibility 1962, whereby the applicant was established in Grade B1, Step 3; According to the defendant, Application 3. Rules that the applicant should be 48/64 should be declared inadmissible established in Grade A5, Step 3, because it was not lodged within the with all the legal consequences period of two months laid down in thereof, as from 1 January 1962; Article 91 (2) of the Staff Regulations. 4. Order the Commission of the EEC A letter of acknowledgement addressed to pay to the applicant the arrears to the person concerned cannot have the of salary which, taking account of his effect of extending the period within grade, are due to him since 1 which the competent authority is alleged January 1962; to have given an implied decision of 5. Order the Commission of the EEC rejection. to pay to the applicant by way of The applicant maintains that there is compensation interest at a rate to be only an implied decision where there fixed by the Court on the arrears is no express decision excluding the of salary due; presumption deriving from the absence 6. Order the Commission of the EEC of a decision. to pay the costs; On 15 July 1964, the date on which 7. Take official note that the applicant the President of the Commission pro­ reserves the right to adduce fresh mised an early decision, there could evidence in support of his sub­ be no question of an implied decision missions during the course of the of rejection; moreover good faith must proceedings and taking into account prevail in relations between the the arguments of the Commission of defendant and its staff. the EEC. In his application in Case 1/65 the On the substance of the case applicant again submits that the Court should: Infringement of Article 102 (1) of the — Annul the decision of the Com­ Staff Regulations mission of 13 November 1964 to The applicant alleges that Article 102

(1) has been infringed since Annex I or equivalent professional experience. to the Staff Regulations was adopted Likewise the administrative re-organiza by common accord of the Councils of tion of the Salaries section, effected by the European Economic Community the applicant, fell within the normal and the European Atomic Energy Com activity of a head clerk. munity and therefore constitutes The applicant maintains that he carries standardization under the said Article out his duties under the direct authority 102. of the Head of Division. As the Salaries The defendant disputes that Annex I and Mission Expenses Division com to the Staff Regulations forms an inte prises four subdivisions of which the gral part of the Staff Regulations and applicant considers that the Salaries cannot be considered as a decision Department of which he is in charge within the meaning of Article 102 (cf. is the principal one and that he is Opinion of the Advocate-General in therefore 'the head of one particular Joined Cases 20 and 21/63, Maudet). sector of activity in a Division'. Infringement of the provisions of Article The defendant states that each of these 5 (4) and of Annex I to the Staff four subdivisions—named sections or Regulations, and of the decision of the offices—of the Salaries and Mission Commission of the EEC of 29 July Expenses Division had an official in

there is no difference in kind between d'étude nécessitant des connaissances de the duties of the applicant in Case niveau universitaire ou une experience 109/63 and those of the present professionnelle d'un niveau equivalent') applicant. (second paragraph of Article 5 (1) of the Staff Regulations) Since he planned the organization and and that he was operation of the Social Security Section for auxiliary and local staff, which 'Head of one particular sector of activity section was placed under his control and in a Division'

1 — Translator's Note: This word does not in fact appear in the English version of the Staff Regulations.

BRUS v COMMISSION

carried out by him are planning duties According to the defendant there are no since in its budget demands of 1964 grounds for failing to apply these same and 1965 it claimed for the Salaries principles in the present case. and Mission Expenses Division the The applicant requests the Court to transformation of one B post into an order the defendant to produce the A5 post and the transformation of three minutes of all the meetings in the B posts to A6 posts and stated moreover course of which it considered the re­ that the assistant to the Head of Divi­ quest for reclassification addressed to it sion in question should have A5 status by the applicant, and in particular the and further that the Heads of the four minutes of the meetings in March Sections are in any event 'officials 1964. engaged in planning advisory and super­ visory duties on the basis of general Directives'. IV — Procedure The defendant is astonished that the applicant considers that he may thus The procedure followed the normal use an internal document of the Com­ course.

mission, without having obtained the On 25 January 1965 the Court joined prior permission of the competent Cases 48/64 and 1/65. authority. It maintains moreover that At the hearing on 19 May 1965, the the Court has laid down in its judg­ Advocate-General delivered his opinion ment in Joined Cases 109/63 and 13/64 that Application 48/64 should be dis­ that such an internal document cannot missed as being inadmissible and that by itself constitute proof of the appli­ Application 1/65 should be dismissed cant's right to the post in question. as being without foundation.

On the other hand no observation need be made on the admissibility of Appeal 1/65, filed within the period of three months from the notification of the contested decision to the person concerned.

JUDGMENT OF 16. 6. 1965 — JOINED CASES 48/64 AND 1/65

On the substance of the case

In alleging that the contested decision infringes Article 102 (1) of the Staff Regulations, the applicant attempts to bring before the Court an alleged in­ fringement of Annex I to the Staff Regulations. This ground of complaint is materially connected with the second, and it is desirable to consider them together.

The applicant has based his application on Annex I to the Staff Regulations and on the decision of the Commission of 29 July 1963, adopting the table of definitions of the duties and powers attaching to each post and notified to the staff in the EEC Commission Staff Information Bulletin No 54 of 2 October 1963, and in particular on the definition in the said table of the duties of a Principal Administrator, which he considers is the only one applic­ able to the post held by him. His post corresponds either to that of an official engaged in planning duties, or that of Head of one particular sector of activity in a Division, or of Head of a specialized department.

The applicant's allegations are without sufficient foundation. Although the documents produced and the information furnished show the zeal and com­ petence with which the applicant carried out his duties, they are not such as to prove that the ability and knowledge required by the applicant's post exceed those of a post in Grade B1 and clearly fall within the plannin g duties referred to by the abovementioned description.

The applicant cannot claim the status of Head of a specialized department either, because the duties of the Social Security Office for auxiliary and local staff, set in operation by him and placed under his supervision, do not involve a sufficient degree of specialization to justify this status.

The applicant has caused to be produced a document in which the Commis­ sion in stating its reasons for its request to the Council of Ministers for budgetary appropriations for the financial year 1964, showed its intention to consider the applicant's post as falling within Category A.

However, an internal administrative document of this sort, directed at per­ suading the budgetary authority to improve the organization of the depart­ ment, cannot amount to a legally valid admission that the applicant has the right to be placed in the grade for which he asks but rather appears unsuited to the purposes for which it is quoted.

Finally, the applicant has requested the Court to order the defendant to produce certain documents, in particular the minutes of the meetings relating to the thorough examination of his request which forms the subject of the present dispute.

The secrecy of deliberation of the Commission should be broken only if it is necessary to do so in order to clarify the case. However, nothing gives rise to a presumption that the documents requested are relevant to an appraisal of the grounds of complaint which have been raised. There are therefore no grounds for proceedings with the measure of inquiry requested,

It is not established that the Commission infringed the Staff Regulations and its decision of 29 July 1963 by its refusal to reclassify the applicant in Grade A5. Consequently, the claim for payment of arrears of salary cannot be upheld. The application must therefore be dismissed.

hereby:

I. Dismisses Application 48/64 as inadmissible; 2. Dismisses Application 1/65 as unfounded;

3. Orders the applicant to bear the costs, with the exception of those incurred by the Commission.

Donner Strauß Monaco

Delivered in open court in Luxembourg on 16 June 1965.

M. J. Eversen A. M. Donner