C-15/65

JUDGMENT OF THE COURT (FIRST CHAMBER) <ap note>1</ap note> 15 DECEMBER 1965

Werner Klaer

v High Authority of the ECSC

Case 15/65

Summary Officials — Duties performed, grade and post — Correspondence — Duties of the

administration

Luxembourg, by assisted Alex Bonn, Advocate of the Cour Supérieure de

Justice of the Grand-Duchy of Luxembourg, with an address for service in Luxembourg at the Chambers of bis said counsel, 22 rue de la Cote-d'Eich,

applicant,

v

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, represented by its Legal Adviser, acting Agent, Guy Sautter, as with an

address for service in Luxembourg at its offices, 2 place de Metz,

JUDGMENT OF 15. 12. 1965 — CASE 15/65

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts Common Market (subject to the

service of the High Authority as 'Article 1: Director of the Transport Division. On Mr Werner Klaer, Unclassified Adviser, the entry into force of the initial Staff

Regulations of the ECSC he was responsible for questions concerning in Grade transport (post No 10 in the detailed established Al, Step 5, with

effect from 1 July 1956. list of posts of Unclassified Advisers) as a result or the reorganization or the shall be attached, with immediate effect,

departments High to the Directorate-General for Economy of the Authority in Transport and Energy (post No 3 in the detailed carried out 1960, the

Division became a Directorate respon­ list of posts of that Directorate-General).

sible to the Directorate-General for Article 2: Economy and Energy. As a result, by Apart from the duties resulting tram the a decision of 18 January 1960, Mr authority conferred on him on 12 Klaer was first appointed Adviser March 1963, in the performance of (Grade 1) with effect from 1 February Un­ which he is directly responsible to the 1960 and on 1 March 1963 an High Authority, Mr Klaer shall in classified Adviser with effect from 1 future perform the duties of Assistant January 1962. A decision of 12 and 13 to the Director-General for Economy March 1963 defined Mr Klaer's duties and Energy in conjunction with Mr in the form of a threefold authority: Cros. —

Adviser, in his capacity as Assistant to costs.'

the Director-General for Economy and B — The defendant contends that the Energy In Mr Mr Court should: conjunction with Cros, Klaer shall perform the following Dismiss as inadmissible and in any case duties: as unfounded the application made by He the Director- Mr Klaer decision 16 — shall represent against the of

General for Economy and Energy December 1964 fixing his duties, with

both within and outside the all the consequences arising therefrom

Directorate-General and preside at in law, in particular as regards the pay­ internal meetings Director- costs.'

when the ment of

General in coordinating the activity A —

Admissibility Directorates within the of the various

Directorate-General and act with him The defendant claims that the applica­

to ensure coordination with the other tion is inadmissible in that it is directed Directorates-General to the High against an act which does not adversely Authority; affect the applicant.

— He shall share with the Director- 1. The defendant maintains, first, that

General in the distribution of the like the Director-General to whom he tasks between the Director­ in the current will offer more effective assistance

On 15 March the above the duties assigned to him under 1965, in absence of

the authority of 12 March 1963 is not any reply on the part of the defendant, he made the present application in order one which may validly foe put forward by an official. In support of this allega­ to avoid losing his right of action. tion, the defendant refers to French administrative case-law, according to

II — Conclusions of the which an official has no power to con­

parties test the decision of a superior which

alters his duties without adversely A — The applicant claims that the affecting his status.

Court should: The applicant replies that the defen­

submission of lack of justification. duties which he previously per­

formed: B — The substance of the case — itgives him two posts, maintaining

In him in post No 10 of the detailed list order to contest the legality of the

decision in question, the applicant of posts whileawarding him in makes the following four submissions: addition roost No 3. — infringement of an essential pro­ It follows from this that the contested

cedural requirement and in parti­ decision should have been reasoned.

cular, an absence of reasons for the The applicant alleges, however, that the decision; measure in question merely referred to Author­ — infringement of the provisions of the an earlier decision of the High

as regards those passages which could cedural requirement have been of interest to 'him.

(a; whilst expressly declaring that he The defendant replies, first, that the

does not wish to raise this fact as a contested decision does not constitute

ground for annulment, the applicant an act adversely affecting the applicant. observes that the contested decision and In support of this view it sets out the

the letter of notification were drawn up arguments which it developed in support in French, although he is a German of its allegation that the application is (See Admissi­ national. inadmissible above, A, The defendant replies that the applicant bility). was considered to be satisfied with the It adds that sufficient reasons are given

notification procedure, as he had a for the decision in question in the

The applicant maintains that there is no — provision for his new duties as

doubt as to the mandatory nature of Assistant to the Director-General for these provisions. The sixth paragraph Economy and Energy is not made

of Article 7 expressly speaks of the in the abovementioned definitions filled' 'post to be and the second para­ of duties and powers

graph specifies that a 'notice of internal — the comparable duties of Assistant competition'

must be circulated. The Director-General which appeared in result of that internal competition may the former Staff Regulations are pre­

be the recruitment of an official by sented as duties in Grade A2, which means of a transfer, promotion, or re­ shows the subordinate position in the integration. administration in which the con­

on 1 January 1962, abolished such trusted to 'him by the contested decision posts. The decision only attributed to are not Grade Al duties. the applicant—who was and is an Un­ The defendant replies that it is true

classified Adviser in Grade Al—further that an Unclassified Adviser holds the

duties within the general framework of same rank as the Director-General and, his appointment as an official 'engaged like him, is directly responsible to the

in top-level studies'. High Authority. The defendant main­

tains, however, that the High Authority 2. Intra ligament of the provisions of the does not itself define the activities of Staff Regulations of Officials such Unclassified Advisers. The (a) According to the definitions of the activities of such officials are necessarily duties and powers attaching to each linked to those of the Director-General; basic post referred to in Annex I to they take various forms depending on

the Staff Regulations (Article (4) of 5 the internal organization of the work

described in the schedule thereto are the effect of the decision in question was

not those of an official of Grade Al. not to appoint the defendant to a post

The applicant maintains that: as Assistant to the Director-General:

JUDGMENT OF 15. 12. 1965 — CASE 15/65

such an appointment would have been cedural requirement (See above, 1). improper, in that the post had not The applicant submits that, while main­

been properly created. The decision taining him in his former post No 10 merely modified, in the sense of extend­ of the detailed list of posts of the de­

remain separate by reason of the con­ of view both of the Staff Regulations tinuing distinction in their grades. The and the budget, since it led to one

level of these two officials is only the official simultaneously and permanently same as regards the authority required holding two different posts appearing duties. Even here, in de­ to perform their separately and individually the

however, the seniority remains intact tailed list of posts without any prior

since, by reason of his higher grade, decision having been taken to combine the applicant is alone qualified to 'these two posts. the application further criticizes the

deputize for the Director-General. The application further criticizes the

(b) The applicant maintains that the words 'shall foe attached, with immediate High Authority has infringed the pro­ effect, to the Directorate-General for Energy' visions of the Staff Regulations of Economy and appearing in Officials by keeping him in his present Article 1 of the contested decision and

ments by means of an individual estimate of administrative expenditure

decision (a point of view challenged by of the Community for the financial year the applicant) it should have expressly 1962-1963, page 1, 5. stated in the contested decision that it The defendant replies that it is not in

was combining posts No 10 and No 3 the light of the detailed list of posts

and was transferring the applicant. This adopted on 5 September 1963, which

argument also relates to the submission determines the structure of the depart­ of infringement of an essential pro­ ments for the period from 1 July 1963

KLAER v HIGH AUTHORITY

classified Adviser no longer exists after available so as to avoid increasing them 16 December 1964. The defendant con­ unduly but, like the abolished post No cludes from this that post No 10 must 10. it is still an Al post.

be regarded as having been combined 3. Ultra vires acts with post No 3. On the subject of the

detailed list of posts, the defendant ob­ (a) The applicant alleges that, although

serves that Article 6 of the Staff Regula­ the High Authority had observed the

tions of Officials refers to the 'list of provisions of Article 7 of the General posts', which gives general quantitative Rules of Organization of 20 April 1960 information on the allocation of the (Official Journal of 3 May 1960, p. 748), credits intended for staff expenses. How­ it became clear that post No 3 is not a

ever, the detailed list of posts, which is post in career bracket Al. He maintains the separate description of 'the organiza­ that, according to the estimate of ad­

pearing in the contested decision, the Article 7 (1) of the Staff Regulations defendant explains that it was a sui allows an official to be appointed to only generis procedure, that the applicant one post in the detailed list of posts

had in fact been transferred from one and that an official cannot, therefore, post in the detailed 'list of posts to an hold two different posts simultaneously other, but that this post itself was, first and on a permanent basis without creat­ abolished and, secondly, recreated with ing, before an individual decision is the same powers and that, as regards taken, certain necessary conditions, if the applicant, the final result is the same need be by combining the two posts, in applic­ as a transfer. accordance with the provisions

As regards the criticism made by the able in such cases.

applicant that post No 3 was in fact a The defendant replies that, as has 'been

post in Category A2, the defendant ob­ set out above (cf. 2 (b)), by virtue of

serves that post No 3 was abolished in the new detailed list taking effect on 1 June 1964 on the retirement of Mr July 1964, post No 10 of Unclassified

original post and, therefore, that the to the applicant, that the two officials

in Article 5 Staff As­ statement (4) of the concerned accepted appointment as

Regulations 'that each institution shall sistants. From this arose the mistaken

'define the duties and powers attaching opinion of the High Authority that the

to each basic would no longer have duties post'

applicant accepted the reserved

his former duties Direc­ relieved of as posed scheme of reorganization.

tor. (b) secondly, the applicant maintains

The defendant replies that, following a that at its meeting on 19 November reorganization, powers conferred on the 1964 the Administrative Committee ex­

Directorate under Mr Cros's supervision pressed the opinion that 'it should be were distributed among other Director­ suggested that Mr Klaer set out with­

ates and that for this reason he could out delay his final position on the pro­

not continue to perform his former posal for assignment which has been duties. The applicant, on the other notified to him. In the case of a refusal,

cision in question without being tee was purely advisory the High

KLAER v HIGH AUTHORITY

authority was under no obligation to President of the Court appointed Mr follow it and, secondly, that the High J. Gand to act as Advocate-General in

Authority was aware of the opinion place of Mr K. Roemer. Judge- since two of its members took part in Upon hearing the report of the Ad­ the work of the Administrative Commit­ Rapporteur and the opinion of the

tee and two Court (First Cham­ others were represented vocate-General, the on it. ber) decided on 5 October 1965 to

(c) Finally the applicant maintains that open the oral procedure without holding before taking the decision to entrust any preparatory inquiry, but neverthe­

members of the High Authority were plicant had been aware of the minutes of aware of the grade and qualifications of the meetings of the High Authority on the applicant. 24 September and 2 December 1964 which are referred to in the preamble

to the decision in question.

IV — Procedure Pursuant to Article 29 (2) (b) of the

Rules of Procedure, the Court author­

The French lan­ statements of the parties were ized the parties to use the

lodged within the prescribed time- guage in their pleadings.

directed against an act which does not adversely affect the applicant. The contested decision led to no injury to the material interests of the applicant and no reduction in his rank as compared with the Director-General with

whom he was required to cooperate. The new definition of his duties made

by the administrative authority did not adversely affect his status and thus, it is not admissible for the applicant to contest the decision of the High Authority.

JUDGMENT OF 15. 12. 1965 — CASE 15/65

The applicant rightly replies that in this case the admissibility of the applica­

tion is closely connected to the substance of the case and that it is only after

Furthermore, under Article 7 of the Staff Regulations the defendant is bound to assign each official to a post in his category which corresponds to

his grade.

The abovementioned provisions show that an official is entitled not only to remain in the same grade and receive the corresponding remuneration, but also to be entrusted with duties and powers which are as a whole in accord­ ance with the post corresponding to the grade which he holds in the ad­

ministration.

The first question is, therefore, whether the effect of the decision appointing the applicant to a post as Assistant to the Director-General for Economy and

Energy, who also held Grade Al, was not to place him in a lower administra­ tive position than another official in the same grade. It is in the very nature of the duties of an assistant to the Director-General that the person to whom such duties are assigned is in a subordinate position as compared with the

General means that this point of view will not be prepared on the basis of the opinion of the applicant but rather on that of the Director-General.

Secondly, it is clear from the definitions of duties and powers adopted by the High Authority on 18 December 1962 that an official perforating duties in Grade Al can only be responsible to the High Authority itself or to its

working parties.

Moreover the definitions of the duties in career bracket A2 show the Director

to be under the direct authority of the Director-General and, in certain cases, of the Institution and that an Unclassified Adviser is required to advise the

Institution or a Directorate-General.

applicant remains responsible for deriving the duties authority of from the

12 March 1963, in the performance of which he is directly responsible to the High Authority.

Although these duties involve a working relationship with the Directorate-

General for Economy and Energy, they do not incorporate the applicant into this Directorate-General or subordinate him to its Director-General.

It matters little in this case that, as regards the duties which the applicant

continues to perform by virtue of the authority of 1963, he is only responsible to the Institution.

Energy were at the same time entrusted to Mr Cros, an official in Grade A2.

This joint appointment is confirmation that it was intended to diminish the

authority of the applicant by assigning to him duties corresponding to Grade

A2, in spite of a certain importance accorded to him in relation to his col­

league in Grade A2, in that the applicant is alone empowered to deputize for the Director-General in his absence.

The above considerations show that the decision in question is not merely an internal measure for the organization of the department, which falls within

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 ECSC; Having regard to Articles 5, 6, 7, 25, 90 and 91 of the Staff Regulations of Officials of the ECSC and Annex I thereto;

Having regard to the Rules of Procedure of the Court of Justice of the

European Communities;

THE COURT (First Chamber)

Delvaux Trabucchi Lecourt

Delivered in open court in Luxembourg on 15 December 1965.

A. Van Houtte L. Delvaux Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL GAND <ap note>1</ap note> DELIVERED ON 17 NOVEMBER 1965­

Mr President, studies concerning transport within the

Members of the Court, ECSC—authority to represent the High Authority at various organizations deal­ Mr Werner Klaer held an important ing with problems of transport outside in the administration of the Ger­ the framework of the Common Market. post

define the duties which were conferred 'Article 1: on him. A decision of the High Authority of Mr Werner Klaer, Unclassified Adviser, 12 March 1963, which had been drawn responsible for questions concerning up with his agreement, gave him a transport (post No 10 in the detailed three-fold authority: authority to act as list of posts of Unclassified Advisers) Adviser to the Directorate-General for shall be attached, with immediate effect, Economy and Energy to ensure coordin­ to the Directorate-General for Economy ation in questions of transport with the and Energy (post No 3 in the detailed other departments of the High Author­ list of of that Directorate- posts

ity—authority to undertake certain General).

1 — Translated from the French.