C-8/69

JUDGMENT OF THE COURT (FIRST CHAMBER) 10 DECEMBER 19691

Theodorus Mulders

v Commission of the European Communities Case 8/69

Summary

1. Officials — Accounting officer — Independence of duties — Concept (Financial Regulation, Article 22, decision of the Commission of 30 July 1968, Article 2)

2. Officials — Financial controller and accounting officer — Equivalence of duties — None

1 — Language of the Case: French.

JUDGMENT OF 10. 12. 1969 — CASE 8/69

THE COURT (First Chamber)

composed of: R. Monaco, President of Chamber, A. M. Donner (Rapporteur) and J. Mertens de Wilmars, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

I — Summary of the facts cation of the applicant's duties was in accordance with the provisions of the The facts on which the present proceed­ Staff Regulations. ings are based may be summarized as On 28 May 1968 the applicant was in­ follows: formed by a letter from the President of The applicant entered the service of the the Commission that the latter, as part European Atomic Energy Community of its re-organization of its departments, on 8 October 1958 as Head of Financial had decided on 21 May to employ him Services, and was appointed on 21 May in the post of Head of the Division of 1961 by the Euratom Commission ac­ Finance, Treasury and Accounts, being counting officer for the Operational part of the Directorate for the Opera­ Budget, and on 19 December 1961 tional Budget and Finance, itself part of Accounting Officer for the Research the Directorate-General for the Budget. Budget. He was kept in Grade A3, his superiors On 6 March 1963 he was established in in the administrative hierarchy being Grade A3 pursuant to Article 102 of the classified respectively in Grades A2 and Staff Regulations, and was given the A1. At the same time a Directorate- tide of Head of Division. In this post he General for Financial Control was was placed, as was the financial control­ created, and the official placed at the ler for the Commission, under the head of this was later designated finan­ authority of the Director-General for cial controller. Finance, although in his capacity as ac­ On 30 July 1968 the Commission de­ counting officer he was answerable cided by written procedure, a decision directly to the Euratom Commission. confirmed during its meeting of 2 to 6 In a letter of 7 September 1966 the ap­ December 1968, to appoint Mr Mulders plicant submitted a request to the Com­ accounting officer of the Commission, mission on the basis of Article 90 of the stating that in the performance of his Staff Regulations that he be appointed duties he was to be directly responsible to Grade A2 with retroactive effect to to the Commission. 31 May 1961. By a letter of 12 Decem­ Without waiting for official notificatian ber 1966 the Director-General for Ad­ of this decision the applicant submitted ministration of the EAEC informed the a complaint by letter of 14 October applicant that the Commission had 1968 to the Commission requesting it to reached the conclusion that the classifi- amend the said decision by altering his

grading to correspond to the respon­ December 1968 it rejected the com­ sibilities given him under the Financial plaint on this subject made to it by Regulation, and with the primary aim the applicant. that the applicant should not be made The defendant contends that the Court subordinate by reason of unequal grad­ should: ing in a manner contrary to the auton­ omy required by the Financial Regula­ — declare the application unfounded; tion. Since no reply was received to his — order the applicant to pay the costs complaint by 14 December 1968, the in accordance with the relevant pro­ applicant (interpreting the silence as an visions. implied decision of rejection under Article 91 of the Staff Regulations) sub­ III — Submissions and argu­ mitted an application to the Court of ments of the parties Justice, dated 7 February 1969 and lodged at the Court Registry on 10 The submissions and arguments of the February 1969. parties may be summarized as follows: A — Admissibility II—Conclusions of the parties In its statement of defence, the defen­ The applicant claims that the Court dant considers that the application is should: only admissible as regards the decision 30 July 1968 naming the applicant ac­ — declare that the applicant, an account­ counting officer of the Commission. An ing officer with the Communities application against the decision of 21 who exercises no other duties for May 1968 appointing him to a post in them, must, in the same way as the Grade A3 is inadmissible because it is financial controller, be placed under out of time. the direct and exclusive authority of The applicant states in his reply that the Commission and be, like him, on the subject-matter of the application is the same level as Directors-General neither the decision of 21 May nor that having the powers of an authorizing of 30 July, but the implied rejection by officer; the Commission of the appeal through — declare that the decision of the Com­ official channels of 14 October 1968 mission of 30 July 1968 appointing seeking a revision of the decision of 21 the applicant accounting officer in the May on the basis of that of 30 July, the Communities must be understood to latter introducing a new element of sub­ amend accordingly the decision of 21 stance with regard to the first. May whereby he was appointed Head In the rejoinder, the defendant asserts of Division forming part of a Direc­ that in the context of the present pro­ torate itself part of a Directorate- ceedings the Court has jurisdiction only General; to examine the question whether the ap­ — accordingly, declare that the applicant pointment of the applicant as account­ should be classified in Grade A1 with ing officer of the Commission amounts effect from 30 July 1968; to conferring on him new duties giving — further to the last point, declare that him a right to be re-classified in Grade the Commission must within two Al. months from the date of the judg­ B — The substance of the case ment to be delivered adjust the ap­ plicant's grade to correspond to his After setting out the respective duties duties as accounting officer and annul of the accounting officer, the authorizing the implied decision whereby on 14 officer and the financial controller with-

in the Communities’ Administration, the ority and the EEC and EAEC Com applicant relies on various provisions in missions to their respective accounting the Financial Regulation (Articles 22, officers and financial controllers. 43, 49 and 51) in support of his claim The case-law of the Court (Case 28/64), that the officials must be independent moreover, reveals the weakness of the of one another and that, in particular, applicant's claims. the accounting officer must be directly As for the accounting officer's financial answerable to the Commission without liability, to which the applicant refers, the interposition of superiors in the ad the defendant replies that this very

given to him. In the case of the financial powers. controller, on the other hand, the need Should the Court judge, however, that to make him independent of those Dir the appointment of an official to the ectors-General who were authorizing post of accounting officer of the Com officers was taken into account, namely mission gives him a right to a Grade A1 by making his grade equal to theirs. post, this conclusion would mean that In its statement of defence, the defend the applicant's appointment was illegal ant Commission remarks that it would because it was contrary to the appro be difficult to ensure equality of grade priate procedures in the Staff Regula for the authorizing officers, the financial tions (Articles 29 and 45). controller and the accounting officer be The applicant replies, referring to cause it is itself the chief authorizing Articles 31 and 44 of the Financial

Article 22 of the Financial Regulation tion of the accounting officer and that of could only have meant the separation of the financial controller, it is difficult to Directors-General with the powers of compare their duties and responsibilities, authorizing officers from the accounting as will be seen by an examination of officer in office. The decision of the Articles 30 and 43 of the Financial Commission appointing the applicant ac Regulation. This difference is confirmed counting officer without making him in by the grades given by the High Auth- dependent of the Directorate-General to

point because the duties exercised in the Court decide that an appointment as the three administrations by the ac­ accounting officer carries with it a right to be classified in Grade Al, this would counting officer and by the financial controller are very different; but the not be sufficient to place the applicant duties of the respective accounting in that grade: on the contrary, the Com­ mission would be bound to initiate the officers were in any case far less im­ portant than the duties of the ac­ procedure laid down in Article 29 of the counting officer in the single Com­ Staff Regulations. mission. This was contested by the applicant, who claims that it is a well established The judgment of the Court in Case principle of administrative law that the 28/64 is, on the other hand, not relevant benefit of any re-assessment must be to the present case since the duties of a passed on to the person holding that financial controller in the Council are post. not comparable to those of an account­ ing officer in the Commission. According to the defendant the principle IV—Procedure of the separation of authorizing officers and the accounting officer has been The written procedure followed the maintained in the present organization, normal course. since the applicant is not subject to any After hearing the report of the Judge- directions from his superiors in the per­ Rapporteur and the views of the Ad­ formance of his duties as accounting vocate-General the First Chamber of the officer. The judgment in Case 28/64 is Court decided to commence the oral in any case perfectly relevant, because proceedings without any preparatory the provisions in the Financial Regula­ inquiry. tion concerning financial controllers and The oral submissions of the parties were accounting officers are applicable as presented at the hearing 30 October much to the budget of the Commission 1969. as to that of the Council. The Advocate-General delivered his In addition the defendant refers again to opinion at the hearing on 12 November Article 24 of the Financial Regulation to 1969.

4 The applicant has stated that the subject-matter of his application is neither the decision of 21 May nor that of 30 July 1968 but the implied rejection of his request for re-classification.

5 The point at issue is whether the decision of 30 July 1968 gave the applicant the right to be re-classified in Grade Al.

6 Since the time for an appeal against the decision of 30 July had not expired at the time when he lodged his complaint, the applicant is entitled to request a review of the legality of that decision in his application directed against the implied rejection of the said complaint.

7 The application is admissible.

The substance of the case

8 The applicant claims that the Financial Regulation of 30 July 1968 concern­ ing the drawing up and implementation of the Budget of the European Com­ munities and the responsibilities of authorizing officers and accounting officers, in particular Article 22 which provides that the execution of the Budget shall be carried out in accordance with the principle of the separation

13 The purpose of the provision is to ensure the independence of the accounting officer and make him directly answerable to the Commission in the perfor­ mance of his duties.

14 Whilst it is true that according to the detailed list of posts the Finance, Treasury and Accounts Division of which the applicant is Head comes under the Directorate for the Operational Budget and Finance and the Directorate- General for the Budget, the applicant has provided no evidence calculated to show that this situation could jeopardize the independence required by the Financial Regulation and prescribed by the decision of 30 July 1968.

15 The independence of the accounting officer, as regards the performance of his duties, from those whose authorizations of expenditure he has to verify, does not necessarily mean that there can be no difference in rank within the ser­ vice between him and them, but merely that he is not subordinate to any superior in the actual performance of his duties.

16 The reference to the grades held by the authorizing officers and by the financial controller-general has no relevance.

JUDGMENT OF 10. 12. 1969 — CASE 8/69

17 In the first place the Commission normally delegates its powers of authorizing expenditure only to officials in the highest grades, so that the recipients of these delegated powers of authorization are not placed in Grade 1 as a result of this delegation: on the contrary, it is because they are Heads of Direc­ torates-General or of Directorates that the power of authorization has been delegated to them.

24 It follows from the foregoing that the application directed against the implied rejection of the applicant's complaint of 14 October 1968 must be dismissed as unfounded.

MULDERS v COMMISSION

Costs

25 The applicant has failed in his action.

26 Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

27 However, under Article 70 of the Rules in actions by officials of the Com­ munities institutions shall bear their own costs.

Delivered in open court in Luxembourg on 10 December 1969.

Monaco Donner Mertens de Wilmars

A. Van Houtte R. Monaco Registrar President of the First Chamber