C-34/65

3. Measures adopted by an institution — Annulment dependent on a new factor — Criteria — Principle of legal certainty to be taken into consideration

1. A measure containing a specific decision 3. Protection of the certainty of legal made without any reservations must be positions and relationships implies that regarded as final in the absence of ma­ the existence of decisions of Community terial factors clearly and consistently authorities governing such positions and indicating the contrary. relationships cannot for ever be called in 2. Cf. para. 4, summary, Case 43/64, Rec. question. 1965, page 500.

In Case 34/65

HANS DIETER MOSTHAF, an official of the Commission of the European Atomic Energy Community, represented by Arved Deringer, advocate of the Oberlandes­ gericht, Cologne, with an address for service in Luxembourg at the Chambers of Ernest Arendt, advocate of the Cour d'Appel, 6 rue Willy-Goergen,

applicant,

V

composed of: A. Trabucchi (Rapporteur), President of Chamber, L. Delvaux and R. Lecourt, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

MOSTHAF v COMMISSION

Fur for annulment. thermore, the change in the legal concepts of both the Commission and the Council as II — Conclusions of the parties applied to several officials following the judgments in the cases of Maudet and In his application instituting the proceed Reynier/Erba constitutes a new factor, ings the applicant claims that the Court requiring that the Commission, in accord should: ance with the principle of equality of treat '1. Annul the decision of the Commission ment, must review its earlier decisions. of 8 March 1965; The defendant puts forward the objection

'1. Declare that the application is inad cerns the classification of the post. The missible; application is this inadmissible in that it is 2. In the alternative, dismiss it as un out of time. founded; The decision of the Commission of 3 May 3. Order the applicant to pay the costs of 1963 on which the abovementioned Va the action.' cancy Notice is based is not, as the applicant In its application on a procedural issue, the claims, provisional; it contains no reserva defendant in the main action contends that tion of any kind nor the slightest evidence the Court should: for the conclusions which the applicant is

'1. Dismiss the request for a preliminary cant's complaint can only be regarded as a ruling submitted by the Commission; confirmatory measure and not such as to 2. In the alternative, reserve, its decision start a new period for bringing an applica for the final judgment.' tion to run. The judgments of the Court of Justice in the III — Submissions and arguments of Maudet and Reynier/Erba cases to which the parties the applicant refers do not of their nature reopen the periods for bringing applications The submissions and arguments of the since, as the Court stated in its judgment in parties may be summarized as follows. Müller (Case 43/64) the legal consequences of a judgment are limited to the parties to A — Admissibility the action and the persons directly con cerned by the measure itself. In his application the applicant maintains In his reply the applicant maintains that the

mally the appointing authority opens a post attaching to the post in question, applied by to competition in the grade corresponding the Commission itself in the period before to the duties involved, in this instance the the entry into force of the Staff Regulations, circumstances do not lead to such a pre also go against the presumption that the sumption. The minutes of the meeting of Notice of Competition contains a classifica the Commission of 3 May 1963 contradict tion of the duties attaching to the post in the defendant's statement that the post had question. Before the entry into force of the been classified when the Notice of Competi Staff Regulations the applicant's prede tion was circulated. These minutes merely cessor, Mr Bauer, held Grade A 4 and state that the post must be filled by an according to the classification in force at the official in career bracket A 5 — A 4, thus time had to be classified in career bracket repeating the words of the last sentence of A 4 — A 3 which, under the new Staff Regu the proposal made by Mr Funck, Director- lations, entitled him to the classification of General for Administration and Personnel, Head of Division.

It is General'. possible to conclude from this omission The applicant maintains that when the that there was a deliberate intention to Commission does not follow the proposals avoid designating the administrative unit of the administration this is always stated and thus to omit any classification of the in the minutes. It must therefore be con post. This classification is, moreover, not cluded from the terms of the latter that the contained in the transfer decision, which Commission intended to follow the pro merely refers to the Notice of Competition. posal of the Directorate-General for Ad The applicant maintains that in 1963 the ministration and Personnel. Moreover, a Commission had not finished reclassifying final classification of the post in question the posts in Grade A 3: during 1964 it had would have been contrary to the general again dealt with this question but had only policy followed by the Commission at the reclassified two posts leaving any decision time as expressed in the abovementioned on the others until the following year.

In this instance,

classification had been made by the decision fications made during the years 1963 to of the Commission of 3 May 1963 preceding 1965; they were merely those which could the Notice of Vacancy. The designation of be made and needed to be made on the basis the post of 'Principal Administrator in of the posts available for the year in ques career bracket A 5 — A 4 in the Directorate- tion. There can thus be no connexion be General for Industry and Economy (Econ tween the decision on the classification of omy Division)' contained in the Vacancy the applicant's post and the reclassifications Notice of 20 June 1963, is a plain fact, the in A 3 made during these years. In this in

The fact that involved. Not only does this argument con Mr Bauer, who had been recruited in Grade tradict the statements made by the Court in A 5, was later promoted to Grade A 4 with the cases of Maudet and Reynier/Erba, but out any statement's being made at that time also the view of the Commission and of the regarding his career bracket is evidence that Director-General for Administration and he was promoted within the framework of Personnel. career bracket A 5 — A 4. In its rejoinder the defendant refers to the judgment of the Court of 14 December 1965 B — Substance given in Case 5/65, which confirms its view on the admissibility of the present applica The applicant maintains that his post, by tion. reason of the duties attaching thereto, can Moreover, the defendant denies that the only correspond to career bracket A 3.

Moreover, or in other grades as alleged by the applicant on 14 March 1963, the Director-General for would thus have no purpose. It is true that Industry and Economy requested that after in the memorandum of 4 April 1963 from Mr Bauer's departure his post be filled by the Directorate-General for Administra an official in career bracket A 3 having tion and Personnel there is a reference to a regard to the tasks and duties involved postponement of the classification of posts therein. Although it relates to a post in in Grade A 3. However, this only concerned career bracket A 5 — A 4, the Vacancy No reclassifications in the financial year 1963, tice unquestionably refers to the post for which a postponement was necessary as already in existence and formerly held by the Commission had only arrived at a Mr Bauer, which was being retained and decision on the reclassifications in A 3 per which involves the same duties as before. mitted by the 1963 budget as its meeting of The applicant's formal request submitted 25 September 1963. on 22 January 1965 on the basis of Article 90 There is no connexion between the reclassi of the Staff Regulations and referring to his

reclassification in Grade A 3 was supported A 4, does not mean that he did not hold the by the Director-General for Industry and position of Head of Division. Moreover, Economy. the conduct of the Commission of the EEC Although, in the official documents of the shows that the term 'division' is irrelevant administration, the applicant was never to the assessment of the administrative unit described as a Head of Division, the Direc concerned. In fact, the Commission has torate-General for Administration and requested that two posts belonging to the Personnel never opposed the use of this Spokesman's Group be reassessed in Grade designation in relation to the applicant. It A 3 without the administrative units con was only in December 1964 that this Direc cerned being regarded as divisions. torate had replaced the term 'Division' by As regards the conduct of the EAEC Com 'Sector of activity' in a draft research con mission in the Moreau Case, (Joined Cases tract in which the applicant appeared as 15/64 and 60/65), the applicant observes Head of Division. that Mr Moreau had never before been (b) The administrative unit for which the regarded as a Head of Division; in spite of applicant is responsible has numerous this, the Commission considered itself powers and at present its work mainly con bound to reclassify Mr Moreau in Grade cerns civil liability in nuclear matters, the A 3. Thus, the Commission cannot now insurance of joint undertakings against nu adopt a different attitude as regards the clear risks and the transport of radioactive applicant without discriminating against

consideration. sion of the EEC. This wide autonomy is In its statement of defence, the defendant explained by the fact that the applicant's puts forward the objection that this sub duties are largely legal in nature, while the mission is inadmissible. The power of the other work of the Directorate mainly con appointing authority to decide on the cerns problems of economic policy and classification of duties is discretionary and industrial and commercial management. thus can only be challenged on the ground Two other officials in Category A, in Grades that the Commission has committed a A 5 and A 7 assist the applicant, as does a wrongful act or omission in exercising it. permanent adviser.

MOSTHAF v COMMISSION

However, the appli the powers of the applicant in the way in cant considers it significant that the Court which he describes them. It contests did not here employ the term 'discretionary generally the justification of all the argu power'. The Commission was thus wrong to ments put forward by the applicant on this have put forward a plea of inadmissibility point and claims that they are without in the absence of any complaint of misuse of relevance to the extent that they refer to the powers. nature and importance of the duties allotted Contrary to the defendant's statement that

were Heads of Division. Moreover, these on the publication of the Notice of Competi cases concern the a posteriori classification tion. In addition, the applicant refers to the of posts in the light of the situations existing statements made by the Commissioner, Mr before the entry into force of the Staff Margulies, concerning the importance of Regulations, while in this instance the insurance in nuclear matters. classification of the applicant's post in Finally, the applicant maintains that it is career bracket A 5 — A 4 occurred after the sophistry on the part of the Commission to entry into force of these Regulations. denigrate duties and powers to which it The reason why the post held by the appli formerly attached great importance, on the cant was not classified as one of Head of pretext of their legal nature.

tion. This power is only limited by the in torate-General, it cannot be classed as a terests of the department. The classification Division but only as a specialized depart of posts necessarily follows from the ment, as expressly provided for in the decision organizing the department. definition of the posts of the Commission. The defendant puts forward an objection to

the definition of the applicant's duties By letter of 15 February 1966, the applicant contained in the application and specifies put forward an objection of inadmissibility that questions concerning measures deter­ on the basis of Article 42(2) of the Rules of mining liability in case of nuclear damage or Procedure concerning that part of the injury are dealt with by the Legal Depart­ rejoinder which related to the definition of ment in cooperation with the Directorate- the applicant's duties and powers, on the General for Industry and Economy. On the ground that only in this document did the other hand, questions concerning insurance defendant first define its position on the are dealt with by the Directorate-General reasons for the application. for Industry and Economy in cooperation Alternatively, the applicant requested to be with the Legal Department. As regards the allowed to submit his observations and other sectors of activity referred to by the evidence in writing on the justification for applicant, the defendant states that a legal this statement by the defendant. problem may occasionally be dealt with by By order of 3 March the First Chamber of the specialized department directed by the the Court rejected these requests. applicant, but that the final responsibility By order of 28 April 1966, the First Cham­ for legal questions does not lie with this ber decided to hear the following witnesses: department which is answerable to the (1) Walter Funck, Director-General, Head Directorate-General for Industry and Econ­ of the Directorate-General for Ad­ omy, but only with the Legal Department of ministration and Personnel of the Com­ the Commission. This is alone sufficient to mission of Euratom; prevent any comparison's being made be­ (2) Eduard von Geldern, Director-General, tween the administrative unit directed by Head of the Directorate-General for the applicant and the other administrative Industry and Economy of the Commis­ units of the same Directorate-General. sion of Euratom: The defendant maintains that questions of (3) Theodor Vogelaar, Director-General, principle and specific questions concerning Head of the Euratom Division of the the insurance of the Commission's own joint Legal Department of the Execu­ nuclear risks were not within the powers of tives of the European Communities. the applicant, but were covered by those of At the hearing on 5 October 1966, the First another administrative authority. Chamber heard the evidence of these As regards the memorandum from the witnesses on the following questions: Director, Mr Michaelis, which is referred to (1) Walter Funck was heard on the first by the applicant, the defendant observes question: that certain tasks mentioned therein have 'Why was the applicant's post not in­ been allocated to another administrative cluded in those reclassified in the last unit within the same Directorate. Moreover, few years in Grade A 3?' at present the applicant has only one assist­ (2) Eduard Von Geldern was heard on the ant in Category A. second question: 'What were the duties, tasks and respon­ IV — Procedure sibilities of the applicant on his appoint­ ment?'

The question whether the applicant has and interest in an application which, if successful, would result in his losing his present post must therefore be considered.

If, as the applicant maintains, this post were to be classified, in Grade A 3, his appointment to this post would lose all legal basis, as a transfer can only be made within the same grade.

However, if this were so, the applicant might possibly be entitled to bring a claim for compensation for any damage suffered on the grounds that the appointing authority had required him to perform duties of a higher level than those of Grade A 5 which he held under the Staff Regulations.

Thus, independently of the existence of a right to be classified in a higher grade, the applicant has a legally valid interest in bringing this application.

The defendant maintains that its decision of 3 March 1965 which is contested in

the present application, merely confirms its decision of 13 February 1964 concern­ ing the applicant's assignment to his present post and that it is therefore the validity of the latter decision which the applicant is contesting. For this reason the applica­ tion is inadmissible as it is out of time.

A measure containing a specific decision made without any reservations must be regarded as final in the absence of material factors clearly and consistently indi­ cating the contrary.

The results of the measures of inquiry conducted by the Court do not support the argument that the measures adopted by the Commission on 3 May 1963 concerning the classification of the applicant's present post were provisional.

In particular, it has not been shown that when the post in question was classified the Commission was uncertain as to the assessment of the duties corresponding thereto.

In these circumstances any possible subsequent decision assessing the post differ­ ently would be, not a measure completing the earlier decision, but a new and independent decision changing the legal situation created by the earlier one.

This is confirmed by the fact that the decisions taken by the Commission after 1963 concerning the reassessment in Grade A 3 of posts already classified in A 5—A 4 are not for the most part retroactive.

For this reason, the decisions on which the former classification was based must be recognized as final.

The applicant does not claim to have been directly affected by the measures annulled by these judgments.

Such judgments cannot, therefore, constitute a new factor as regards the applicant.

The applicant's request essentially challenges the validity of the decision of 3 May 1963, by which the Commission classified the post in question in career bracket A 5—A 4, and the decision of 13 February 1964 which draws the consequences of this classification by awarding Grade A 5 to the applicant.

Moreover, protection of the certainty of legal positions and relationships implies that the existence of decisions of Community authorities governing such positions and relationships cannot for ever be called in question, unless there are new and serious reasons for doing so.

When the application was lodged, the period for making an application to annul the abovementioned decisions had already expired.

It must therefore be concluded that the present application was submitted outside this period and must for this reason be declared inadmissible.

The circumstances which preceded the appointment of the applicant to his present post may have led him to mistake the Commission's real intentions regarding the classification of his post and, therefore, regarding the final nature of the decision made in this respect on 3 May 1963.

For this reason, it is appropriate to order the defendant to pay half the costs incurred by the applicant.

As the witnesses were heard in their capacity as officials of the Commission of the EAEC, their travel expenses must be borne by the defendant.

On those grounds,

Upon reading the pleadings and the results of the measures of inquiry; 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 Atomic Energy Community; Having regard to Article 152 of the Treaty establishing the European Atomic Energy Community; Having regard to the Staff Regulations of Officials of the European Atomic Energy Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT (First Chamber)

A. Van Houtte A. Trabucchi

Registrar President of the First Chamber