C-59/65

JUDGMENT OF THE COURT (FIRST CHAMBER) 15 DECEMBER 19661

Heinrich Schreckenberg v Commission of the EAEC

Case 59/65

Summary

1. Measures adopted by an institution — Definitive nature — Criteria

2. Procedure — Claim for compensation distinct from an application for annulment — Limits of this distinction

defendant,

Application for the annulment of the Commission's refusal of 22 September 1965 to comply with the applicant's request of 8 July 1965; for classification in Grade

1 — Language of the Case: French.

JUDGMENT OF 15. 12. 1966 — CASE 59/65

A 3, Step 2, as from 1 January 1962, with additional biennial advancement of step as from that date; and, in the alternative, for the payment of damages;

THE COURT (First Chamber)

I— Facts and Procedure brought an appeal against the decision of the Commission reïecting his request. In an Heinrich Schreckenberg was engaged by application on procedural issue the Com­ the EAEC on 25 November 1960 at a mission contended that the application was salary of 21 000 Belgian francs. He has out of time and therefore inadmissible. since performed the duties of Head of the By order of 3 March 1966 the Court (First Internal Services Department. On 5 March Chamber) reserved its decision on the 1963 he was integrated in Grade A 5, Step 2, procedural issue for the final judgment. with effect from 1 January 1962. On 13 At the request of both parties, at the October 1964, Mr Schreckenberg was hearing on 21 October 1966 the remainder promoted to Grade A 4, Step 1, with effect of the oral procedure was adjourned until from 1 January 1964. 10 November to allow for the consideration On 8 July 1965 he addressed to the President of further documents placed on the file. of the Commission a 'complaint concerning Mr Advocate-General Roemer delivered [his] classification submitted in accordance his reasoned oral opinion at the hearing on with Article 90 of the Staff Regulations'. He 24 November 1966. asked to be reclassified retroactively in Grade A 3. His request was chiefly based on II — Conclusions of the parties a comparison of his position with that of Mr Maudet at the Commission of the EEC In his application the applicant claims that and on the precedent constituted by the the Court should: judgment given by the Court in the Maudet '1. declare that the refusal of the Commis­ Case. On 22 September 1965, the Commis­ sion on 22 September 1965 to comply sion rejected this complaint and confirmed with his request and complaint sub­ the decisions which classified the applicant mitted by letter of 8 July 1965 is void and and integrated him in the post of Principal of no effect; Administrator in Grade A 5 with effect 2. declare and adjudge that the Commis­ from 1 January 1962 (decision of 5 March sion shall be bound to classify the appli­ 1962) and promoted him to Grade A 4 cant as from 1 January 1962 in Grade with effect from 1 January 1964 (decision of A 3, Step 2, with an additional biennial 13 October 1964). advancement in step in accordance with On 13 December 1965 Mr Schreckenberg Article 44 of the Staff Regulations;

3. in the alternative, declare and adjudge at the 282nd and 283rd meetings (item that the Commission shall pay the appli XI of the 282nd meeting and item XV cant by way of damages a sum corre of the 283rd meeting); sponding to the differential allowance 2. order the Commission to produce docu provided for in Article 7(2) of the Staff ment EUR/C/1651/63 f and the letter of Regulations, which he should have 8 March 1965 from the Commission to received as from 1 January 1962 and Dieter Mosthaf; which is assessed at 100 000 Belgian In the further alternative: francs, subject always to the right of the as the applicant offers to make Mr Funck, applicant to claim an increased sum in the Director-General for Administration the course of the proceedings; and Personnel, available for examination as 4. in any event, declare and adjudge that a witness, order the following facts to be the Commission must bear the entire proved by witnesses: costs of the proceedings.' "that Mr Funck informed the applicant The defendant contends that the Court that this his position could not be settled as should: long as the duties performed by him and by — declare that M. Schreckenberg's appli certain other officials at the Directorate of

In the alternative: III — Submissions and arguments of — reserve its decision on the procedural the parties issue for the final judgment; — make an appropriate order as to costs.' A — Admissibility In its statement of defence the defendant contends that the Court should: The defendant emphasizes that as the appli '— declare that the applications for annul cant only submitted his complaint through ment and damages are out of time and official channels on 8 July 1965, 28 months therefore inadmissible; after the integration decision of 5 March — uphold the defendant's preliminary 1963 was taken, neither that complaint nor objection on a procedural issue ; his appeal to the Court against the classifi — in the alternative, declare the said appli cation resulting expressly from that decision cations to be unfounded and dismiss were submitted within the periods provided them; for in Article 91 of the Staff Regulations. — order the applicant to pay the costs to The decision of the President dismissing the extent provided for by Article70 of this belated complaint merely confirmed the Rules of Procedure of the Court.' the decision of 5 March 1963.

JUDGMENT OF 15. 12. 1966 — CASE 59/65

a general reorganization of the depart factors referred to, in particular the state ments followed by a reclassification of the ments made by Mr Funck, are either diffi servants in question represents. cult to accept or do not apply to this case. The applicant replies that the objection of As regards the distinction between the two inadmissibility put forward by the defen requests the applicant refers to Belgian case- dant did not refer to the admissibility of the law and as regards the new factor empha second request and emphasizes that it was sizes that in his view so far the Court has impossible to come to a decision on this only given it a negative definition in the second request without having considered judgments in which it refused to regard the

drawn that in the light of the content of the Rec. 1965, p. 1). file, 'we are dealing with an important new The measures taken on 8 April 1965 con factor'. cerning certain officials were not merely promotions but reclassifications (and were, In particular, as Article 4 of the Staff Regulations provides that no promotion moreover, irregular in that they were not shall be made for any purpose other than retroactive). Everything goes to show that that of filling a vacant post, and that such the measures in question concerned a new vacant posts shall be notified to the staff, organization of all the departments (the the fact that the Commission issued no such lack of preliminary publication of these notification was evidence that no vacant measures, the minutes of the 282nd and post existed and therefore no promotion 283rd meetings of the Commission, the was possible; the measures in question memorandum of 4 April 1963 from Mr therefore concerned a re-assessment of the Funck to the Commission, the inclusion in posts and the corresponding classifications. the 1963 budget of certain posts filled in Thus, for a colleague of the applicant 'to 1965, the statements made by Mr Funck and the manner in which Euratom set out have been promoted to Grade A 3 the administrative unit directed by him must its departments in the 'Guide de la Com first have been organized as a division; it munaute').

SCHRECKENBERG v COMMISSION

Division. The detailed list of posts referred Furthermore, the series of individual to has no value as an official document and measures taken in 1965 merely repeated as the Guide des Communautés Européen similar measures taken in 1963 and 1964. It nes is simply an information directory it has is impossible to see why the new factor was no probative value. Finally, Mr Maudet only constituted by the measures taken in was recruited in 1958 to perform duties at a

More vacancy notice was published 'tempore non over, the responsibilities assumed by Mr suspecto' was evidence that the administra Maudet in the departments of the EEC were tion was not pursuing the aim alleged by the often performed by Mr Schreckenberg's applicant, which could have been achieved immediate superior in the departments of without any publication. Euratom. Furthermore, the comparative table of the respective duties of these two B — Substance servants, which appears as a schedule to the application, is not entirely accurate. (a) On the application for annulment The applicant recalls that the report on his abilities, drawn up in 1962 with a view to The applicant states that he was maintained his integration, several times described the in a pre-existing post which, having regard administrative unit directed by him as a to the duties performed, must correspond 'Division' and that his arguments con under the new Staff Regulations to a higher cerning the analogy between his own case grade than that obtained under the integra and that of Mr Maudet was not denied tion procedure. As Mr Schreckenberg during the administrative stage which directs an. administrative unit in the followed his complaint through official capacity of Head of Division, his position channels. The classification of the appli must be regularized in accordance with the cant's immediate superior in Grade A 3 was definition of basic posts. This is shown by the result of an unusual situation, since Mr the internal detailed lists of posts of the Snoeren, who was answerable to the same Directorate for Administration and by the superior, was himself classified in Grade structure of the Directorate-General for A 3. The detailed list of posts applying Administration and Personnel. internally to the Directorate for Adminis The applicant's statement on this point in tration had been drawn up 'tempore non the schedule to his complaint of 8 July has suspecto', for the sole purpose of indicating not been denied, either as regards the the distribution of tasks within that Direc definition of his duties or the comparison torate. Moreover, in a letter addressed to a between these duties and those of Mr colleague of the applicant the Commission Maudet, the applicant's counterpart in the acknowledged that the classification of a EEC Commission. post 'is determined by the duties and powers The defendant replies that, to the extent that attaching thereto and not by the grade of it refers to the post of Head of Division, the the immediate superior in question'.

JUDGMENT OF 15. 12. 1966 — CASE 59/65

Grounds" of judgment

Mr Schreckenberg was engaged by the Commission of the EAEC on 25 November 1960 to perform the duties of Head of the Internal Services Department. On 5 March 1963 he was integrated as a Principal Administrator in Grade A 5 and on 13 October 1964 promoted to Grade A 4. He has brought an appeal against the decision of the Commission of 22 September 1965 rejecting his request for reclassi­ fication in Grade A 3.

The applicant maintains that he is entitled to reclassification in accordance with the principle of the correspondence between duties and grades under Article 102 and Annex I to the Staff Regulations of Officials and requests that he be recognized as Head of Division. In the alternative, he claims damages corresponding to the differential allowance provided for in Article 7 (2) of these Regulations.

The Commission maintains that this appeal is inadmissible on the ground that

SCHRECKENBERG v COMMISSION

after being classified in Grade A 5 by the integration decision of 5 March 1963 Mr Schreckenberg did not appeal against this decision within the period provided for in Article 91 of the Staff Regulations and only submitted his complaint through official channels on 8 July 1965.

Commission cannot alone constitute evidence that the Commission has accepted his recommendations since the Commission is in no way bound by proposals made by its departments and the silence of the minutes on the point cannot be interpreted as acquiescence. Evidence by witnesses taken by the Court in Case 34/65 and produced with the consent of the parties at the hearing in the present case does not show the classification decision of 5 March 1963 to have been

provisional. It does not appear that when this classification was made the Com­ mission had doubts on its assessment of the duties corresponding to the post in question. Moreover, no importance can be attached to the fact that in a report drawn up by the applicant's superiors on 13 June 1962, that is, before the classi­ fication decision of 5 March 1963 was made, the applicant's department was described as a 'division'. The factors relied on are, therefore, not sufficient to deprive this decision of its definitive character, in particular as the minutes of the

JUDGMENT OF 15. 12. 1966 — CASE 59/65

196th meeting of the Commission of 22 January 1963 refer to a 'general consider­ ation of the classification of the posts held by servants to whom the Staff Regula­ tions apply'.

Although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal measure which causes him damage, he may not by this means circumvent the inadmissibility of an application which concerns the same illegality and has the same financial end in view.

In fact, in the alternative head of his appeal, the applicant is not claiming that damages be assessed in the light of the actual damage which he claims to have suffered by reason of the duties which he performed, but is seeking the award of a sum equal to the difference between the salary paid and that which he would have received from 1 January 1962 in Grade A 3 to which he claims to be entitled.

SCHRECKENBERG v COMMISSION

The principal application concerning the classification fixed by the decision of 5 March 1963 has been held to be inadmissible, since the particulars alleged to be important new factors have been found incapable of calling this decision in ques­ tion, with the result that they cannot be regarded as constituting a wrongful act. This decision is final. Lastly, by basing his claim on Article 7 (2) of the Staff Regulations the applicant draws attention to the real object of his claim which is not so much to make good damage suffered as to extend the benefit of this provision concerning payment of a salary for a temporary posting, which the applicant was precluded from claiming since he was out of time.

For all these reasons, the alternative claim must be declared inadmissible.

Costs

OPINION OF MR ROEMER — CASE 59/65

2. Orders the defendant to bear its own costs and one half of the costs incurred

by the applicant.

Trabucchi Delvaux Lecourt

Delivered in open court in Luxembourg on 15 December 1966.

A. Van Houtte A. Trabucchi

Mr President, Commission promoted the applicant to Members of the Court, Grade A 4, Step 1, as from 1 January 1964. After learning from information posted in The applicant in the case in which I am the institution on 3 May 1965 that by today delivering my opinion entered the decision of 8 April 1965 several officials service of the Commission of Euratom on (including two from the Directorate- 25 November 1960. His initial salary General for Administration and one of his amounted to 21 000 Belgian francs, a sum colleagues) had been promoted to Grade which, according to the Commission, A 3, the applicant submitted to the Com­ corresponded to a classification in Grade mission on 8 July 1965 a complaint through A 5 of the Staff Regulations of Officials of official channels pursuant to Article 90 of the European Coal and Steel Community. the Staff Regulations. From the outset of his service the applicant In this complaint the applicant requested was assigned to the Directorate-General that, having regard to the importance of his for Administration where he performed the duties, he be classified in Grade A 3 with duties of Head of the Internal Services effect from 1 January 1962. This complaint, Department, a position which he still holds. too, failed. It was dismissed by a decision of The present action concerns the assessment the President of the Commission of which of these duties according to the Staff the applicant was informed on 22 Sep­ Regulations of Officials and the definition tember 1965 by a letter from the Director- of posts drawn up by the Commission. General for Administration in which he I shall only make a few observations on the expressly emphasized that the assessment of history of this action. the duties made in the decision of 5 March After the entry into force of the Staff 1963 establishing the applicant remained Regulations a decision of the Commission unchanged. This led the applicant to insti­ of 5 March 1963 established the applicant as tute legal proceedings. His appeal was filed from 1 January 1962 in the post of Principal on 13 December 1965 and in it he claims Administrator in Grade A 5, Step 2. On 8 that you should: July 1964 the applicant requested that in — annul the decision of 22 September 1965 the light of the importance of his duties the rejecting his complaint; President of the Commission should award — declare that the Commission shall be him the differential allowance provided for bound to classify him in Grade A 3, in Article 7 (2) of the Staff Regulations. Step 2, with effect from 1 January 1962 This request was not complied with. How­ with advancement to those steps to ever, by a decision of 13 October 1964 the which he is entitled as at 1 January 1964