C-24/69
ECLI:EU:C:1970:22
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JUDGMENT OF THE COURT (FIRST CHAMBER) 14 APRIL 19701
Theo Nebe
y Commission of the European Communities
Case 24/69
Summary
1. Officials — Applications — Time-limits — Nature — Extension — Not permissible (Staff Regulations of Officials, Article 91)
2. Officials — Applications — Failure to act on the part of the administration — Concept (Staff Regulations of Officials, Article 91)
3. Officials — Applications — Implied rejection — Expiration of period for bringing application — Express rejection — Absence of new factor — Confirmatory nature — No act adversely affecting the official (Staff Regulations of Officials, Article 91)
1. The two periods mentioned in Article 91 meaning of Article 91 of the Staff of the Staff Regulations are intended to Regulations. ensure within the Community institu tions the legal certainty indispensable to 3. The express rejection of a request or com their proper functioning. plaint, after expiry of the period for It is not therefore for the parties con lodging an application on the ground of cerned to extend them at their pleasure. its implied rejection, which contains no new factor relating to the position in law 2. A notice to the applicant that his com or in fact existing at the time of rejection plaint is under consideration cannot of is a purely confirmatory measure and is itself have any legal effect and cannot be not capable of adversely affecting an considered as a decision within the official.
In Case 24/69
Theo Nebe, an official of the Commission of the European Communities, residing at 65 rue Solleveld, Brussels, represented by Alex Bonn, Advocate of Luxembourg, and residing there at 22, Côte D'Eich, applicant,
1 — Language of the Case: German.
JUDGMENT OF 14. 4. 1970 — CASE 24/69
v
Commission of the European Communities, represented by its Legal Adviser, Jürgen Utermann, with an address for service in Luxembourg at the office of its Legal Adviser, Émile Reuter, 4 boulevard Royal, defendant,
Application for the annulment of :
(a) the decision of the Commission of the European Economic Community of 23 May 1966 appointing the applicant to a post in Grade A 5, in so far as it lays down 1 May 1966 as the date on which it is to take effect; (b) the decision of the Commission of the European Communities of 14 March 1969 rejecting the applicant's complaint based on Article 90 of the Staff Regulations.
THE COURT (First Chamber)
composed of : R. Monaco, President of Chamber, A. M. Donner and J. Mertens de Wilmars (Rapporteur), Judges,
Advocate-General: K. Roemer
Registrar : A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure 8. 12. 1964 p. 3460) provided, inter alia, that the Commission was authorized to meet the The applicant entered the service of the cost of the salaries of seven additional A 5 Communities as a member of the auxiliary officials during the course of the financial staff on 1 September 1962 and was on 6 year 1964. January 1964 with effect from 1 November Availing itself of this opportunity, the Com 1962 appointed an administrator in Grade mission on 4 March 1965 published Vacancy A 6 in the Directorate-General for Agri Notice No 2079 relating to a post of culture, Directorate of Market Organiza Principal Administrator in Grade A 5 in the tion for Animal Products, Milk Products Directorate and Division to which the Division. applicant belonged ; the latter submitted his The supplementary budget for the financial candidature on 9 March 1965 and was by year 1964, adopted by the Council of decision of 23 May 1966, taking effect on Ministers on 14 November 1964 (OJ of 1 May 1966, appointed to this post.
NEBE v COMMISSION
In his acknowledgement of receipt of his the applicant's posting to a post in notification of appointment the applicant Grade A 5, his appointment as Principal expressed reservations as to the date when Administrator and his promotion to that decision ought in his view to have taken Grade A 5, and annul this provision ; effect; on 30 August 1966 he made a com 3. Rule that plaint under Article 90 of the Staff Regula — the applicant must be appointed to tions, stating that he had performed the Grade A 5 with effect from 1 Novem duties of the post since the beginning of 1964 ber 1964, and requesting first, that his promotion be — the appointing authority must under back-dated to 1 November 1964, the date Article 7 (2) of the Staff Regulations on which he had completed two years' take a decision with effect from 1 May service in Grade A 6, and secondly that, 1964 and that this decision must apply under Article 7 of the Staff Regulations, he until the coming into force of the be granted meanwhile a temporary posting applicant's appointment to Grade to this position in respect of the period from A 5; 1 May to 30 October 1964. 4. Remit the case to the appointing author After the applicant had sent a reminder to ity; the Commission on 2 October 1968 the 5. Order the defendant to bear the costs. latter rejected this complaint by a decision The defendant contends that the Court of 14 March 1969, which was notified to should : him on 10 April 1969 and in support of this 1. Reject the appeal as unfounded; refusal of his application the Commission 2. Order the applicant to bear the costs. argued that by virtue of its decision of 26 The applicant by way of reply further May 1965, laying down the general provi claims that the Court should : sions as to the date when appointments and — reject the defendant 's application and promotions take effect, the new duties accordingly accede to the applicant's should have been undertaken with the agree
claim; ment of the appointing authority which in as a subsidiary point and so far as may be its view had not been the case. necessary: The applicant brought an action before the (a) Order that Mr Korth, Head of Court of Justice on 5 June 1969. Division, Mr Amiet, Director, and The procedure followed the normal course. Mr Heringa, Deputy General, be After hearing the report of the Judge- heard on the facts set out under Rapporteur, and the views of the Advocate- point 2; General, the Court decided to open the oral (b) Order that Mr Heinz Bruns, Assis procedure without a preparatory inquiry. tant to the Director General for The parties were heard on 14 January 1970. Agriculture be heard on the facts set The Advocate-General delivered his opinion out under point 3 above; on 4 February 1970. (c) Order the production of the com plete correspondence which passed
between the Directorate General for II — Conclusions of the parties Agriculture and the Directorate The applicant claims that the Court should : General for Personnel and Adminis 1. Declare null and void, or at any rate tration on the subject of the appli illegal, the decision of the Commission cant's promotion, based on the of the European Communities of 14 declarations by the latter under March 1969 rejecting the complaint points (2) (e) and (7). made by him based on Article 90 of the Staff Regulations, and annul that III — Submissions and arguments decision ;
of the parties 2. Declare null and void, or at any rate illegal, point 3 of the decision of the The submissions and arguments of the Commission of the European Economic parties may be summarized as follows. Community of 23 May 1966 relating to In the applicant's view, the duties assigned
JUDGMENT OF 14. 4. 1970 — CASE 24/69
to him by the contested decision of 23 May when it applied and for as long as it was not 1966 have been exercised by him as from the expressly modified or discontinued. beginning of 1964, this post having resulted In the absence of an established practice the from the supplement to the budget of 1964 right to retroactive treatment can only be which was adopted by the Council in the based on a general regulatory measure on course of its meeting of 4 and 5 February the part of the appointing authority and this 1964. was precisely the purpose of the decision of He deduces therefrom that he should have 26 May 1965 which applied to all promotion been appointed to Grade A 5 with effect and appointment procedures pending at from 1 November 1964, this being the date that time and in particular that of the appli on which he fulfilled the conditions of cant, which took place in the main after the seniority required under Article 45 of the month of May 1965. Staff Regulations and further that in respect According to the defendant the applicant of the period from 1 May to 31 October 1964 does not comply with the conditions which a decision ought to have been taken granting are in fact laid down by the said decision. him a temporary posting to this position In the first place he did not perform in within the meaning of Article 7 (2) of the advance of promotion duties corresponding Staff Regulations. to his present post.
This results mainly from the fact that the 1 — The retroactive effect of the appointment applicant's present post could only have (a) The applicant submits that whilst the been created and therefore occupied at the Staff Regulations are silent on the retro beginning of 1965, after the grant of the active effect of appointments or promotions, budgetary A 5 posts in the 1964 supplemen it nevertheless allows this and the provisions tary budget, which was only adopted on being silent on the point, the case ought to 14 November 1964. have been dealt with according to the prac
This also follows from the fact that the tice currently followed by the Commission, applicant's new post falls within the career as required by the principle of equality of bracket A 5-A 4, whilst the previous post treatment and this all the more so since the came within career bracket A 7-A 6 ; a com recruiting and promotion procedure has in parison of the vacancy notices relating to the the event taken more than two years for no two posts successively occupied by the obvious reason. applicant shows that they relate to separate The coming into force of an appointment posts involving different duties.
Finally, the with retroactive effect has been common fact that after the applicant had left, his pre practice until the Commission's decision of vious post was filled by a new official con 26 May 1965, as the applicant is prepared to tradicts his statement. prove both by the evidence of Mr Bruns and In the second place even if—quod non— the by examples of retroactive appointments applicant had actually performed the duties which occurred in 1965. in question in advance does not in any event The Commission is wrong in basing its comply with the conditions that the appoint refusal on its decision of 26 May 1965 ing authority should have officially author which, being subsequent to the vacancy ized the performance ofhis duties in advance. notice of 4 March 1965, does not apply to This requirement, even though it is not the applicant. specifically formulated in the decision of The defendant 's reply contests the allegation 26 May 1965, is self-evident.
If it were that retroactive appointments have pre sufficient to have performed the duties of a viously been common practice. This has higher grade for an official to be subsequent only happened in cases where these were ly able to benefit from retroactive treatment, delayed by the coming into force of the the Commission would be deprived of its Staff Regulations of 1962, a fact from which sole power of creating and organizing de the applicant himself benefited at the time. partments and posts which clearly emerges In any event, a prior administrative prac from the power to make appointments, for tice, had it existed, could still only bind the the Directors General might thus force the appointing authority during the period Commission to effect certain appointments.
NEBE v COMMISSION
In the present case the appointing authority ments by witnesses as well as by his per did not give the necessary authorization and sonal file and exchanges of correspondence moreover no application to this effect had prove this assertion. been submitted to it. Finally, he notes that he had from the outset The applicant replies that he fulfilled the requested the retroactive application of his conditions to which the decision of 26 May appointment which is proved, inter alia, by 1965 renders a retroactive appointment the fact thai the note of 17 June 1966, under subject, in that he has effectively performed cover of which the letter appointing the the duties attaching to the post and that he applicant was sent to Mr Amiet, refers to was instructed to carry out those duties. his previous misgivings. The decision in question lays down no other As regards the second condition, the appli condition and certainly does not require cant states that he had been instructed to that the appointing authority should itself carry out these new duties as is shown by a have authorized that the duties of the higher note of 1 December 1965 in which the grade be performed in advance; this would Director, Mr Amiet, states that for two amount to an indefensible idea for it would years the applicant was performing the imply that an official entrusted with new duties corresponding to the post for which duties could not execute the orders of his he had applied.
Further evidence is avail superiors before the appointing authority able to prove this to the full. had called on him in writing to do so. The applicant concludes that in basing its As regards the first condition the applicant refusal on the argument that the conditions asserts that he was actually performing the required for retroactive appointment were duties attaching to his present post from the not present, the defendant has taken a beginning of 1964. decision based on incorrect grounds. In his view these new responsibilities derived The defendant replies that since the express from the adoption of Regulation No 13/64 authorization of the appointing authority is of 5 February 1964 on the gradual establish
required, the suggested proofs and evidence ment of a common organization of the cannot be relevant for they would merely go market in the milk and milk products sector to show that the applicant performed his in 1964. It was the adoption of this regula duties in advance of promotion with the tion which induced the Council in its agreement of his superiors. deliberations of 4 and 5 February 1964 to (b) The applicant alleges that whatever the create various additional posts, including rules in the matter of retroactive appoint
that to which he was promoted. Whilst the ment, the defendant has acted towards him budget was only approved on 14 November in a discriminatory manner. According to 1964, it nevertheless applied by virtue of him other appointments with retroactive Article 203 of the EEC Treaty to the whole effect were made at the same time as his and of 1964 and the posts must be treated as he offers to provide proof of this fact. vacant from 1 January 1964. The contrary decision taken in the case of Since 1964, the applicant has been instructed the applicant establishes a discrimination to carry out duties different from those against him as compared with other officials which he was previously performing and and violates the principle of equality of which had been the subject of Vacancy treatment.
Notice No 303 of 1962. In 1962 his duties The defendant denies that in cases similar to had been limited to preparing and putting those of the applicant retroactive appoint into operation the regulation on the organ ment has been granted to the officials in ization of the market in milk products, volved. There has therefore been no dis whilst as from the coming into force of this crimination. regulation he had been instructed to ensure The applicant replies by stating that he can its implementation. prove the contrary and refers by way of The applicant further states that he is not example to Vacancy No 2108 (Staff Bulletin aware of anyone else who could carry out No 132 of 22 March 1965) the holder of
these new duties. A note on the part of his which was retroactively appointed in cir Director, confirmed by a number of state- cumstances similar to his.
JUDGMENT OF 14. 4. 1970 — CASE 24/69
2 — The temporary posting to appoint a temporary occupant to the post (cf. opinion of the Advocate-General in The applicant alleges that the appointing Case 26/67, Danvin ν Commission of EC, authority ought under Article 7 (2) of the [1968] E.C.R. 323). Staff Regulations to have taken a decision Finally it notes as a subsidiary point that appointing him temporarily as from 1 May Article 7 assumes that there should be a 1964 to the post until the coming into force corresponding post. The post in question of his appointment to Grade A 5, which was not created until March 1965. Under could only take place as from 1 November the first and second subparagraphs of 1964. Article 7 (2) the temporary posting could The defendant replies that as regards this therefore only have taken effect from 1 June point it may well be asked whether the appli 1965, neither, for that matter, could it have cation is not inadmissible as being out of been granted for more than twelve months. time. The applicant in fact asked for the The applicant replies that the admissibility temporary posting in his complaint through of his arguments in support of obtaining the official channels of 3 August 1966, that is to status of an official subject to a temporary say two and a half years after the applicant posting cannot be questioned: this com had allegedly occupied the new post. plaint could only have been formulated The defendant adds that Article 7 imposes after the rejection of his application for moreover no obligation on the Commission retroactive appointment.
Grounds of judgment 1 The application, registered at the Court on 5 June 1969, is first for annulment of the decision of the Commission of 23 May 1966 to the extent to which, in fixing 1 May 1966 as the date on which the promotion of the applicant to Grade A 5 takes effect, this decision refuses him the benefit of retroactive treatment as from 1 November
1964, to which he claims to be entitled.
Secondly the application is for the annulment of the decision of the Commission of 14 March 1969 rejecting the applicant's claim of 3 August 1966 under Article 90 of the Staff Regulations.
2 The applicant who claimed actually to have performed his duties since the beginning of the month of February 1964, in the Grade A 5 post to which he was subsequently appointed, sought by his complaint to obtain a modification of the decision of 23 May 1966 with a view to its taking effect as from 1 November 1964, a date on which he satisfied the minimum seniority in Grade A 6 required for promotion.
His request was further for the grant for the period from 1 May 1964 until the date when his appointment took effect, of the temporary differential allowance provided for by Article 7 (2) of the Staff Regulations.
The defendant notified him on 24 August 1966 that 'a detailed investigation of the matter was currently being undertaken' and that a reply would be given as soon as 'a definite conclusion' had been reached.
NEBE v COMMISSION
After a reminder addressed to it on 2 October 1968, the Commission rejected the complaint and the applicant's request on 14 March 1969, that is to say after more than three years.
3 By reason of the periods which have elapsed it is necessary to examine whether the appeal must not be regarded as out of time.
4 Under Article 91 of the Staff Regulations, failure on the part of the competent authority to give a decision in reply to a request or complaint must at the expiration of a period of two months be regarded as an implied decision rejecting the request or complaint and such decision may be contested within a period of two months.
5 The two combined periods under Article 91 of the Staff Regulations are intended to ensure within the Community institutions the legal certainty indispensable to their proper functioning.
They take into account inter alia the fact that in an administration decisions relating to the situation of a particular member of the staff may frequently affect the position of other officials. It is not therefore for the parties most immediately concerned to prolong these periods at their pleasure.
6 The letter of 24 August 1966 does not constitute a decision in reply to the appli cant's complaint. It cannot moreover, of itself, have any other legal effect sinceit has the sole purpose of intimating the carrying out by the Commission of an obligation already provided for, as in Article 91 of the Staff Regulations.
7 It follows that if at the expiration of the period of two months the examination of which the applicant had been informed had not led to an express decision, the complaint must be regarded as rejected by implication.
The appeal must accordingly be considered as out of time and therefore inadmissible to the extent to which it is directed against the decision of 23 May 1966 and against the implied rejection.
8 As regards the express decision of rejection contained in the letter of 14 March 1969, whilst this letter sets out the grounds for adhering to the previous decision, it nevertheless contains no new factor relating to the position in law or in fact existing at the time of the implied rejection of the original decision.
Accordingly it amounts to a measure limited to confirming the previous measure and for that reason not capable of adversely affecting the person concerned.
OPINION OF MR ROEMER — CASE 24/69
Costs
9 The applicant has failed in his application.
Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
Nevertheless under Article 70 of the Rules of Procedure, in actions by servants of the Communities the institutions shall bear their own costs.
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 European Economic Community; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 91 ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
THE COURT (First Chamber)
1. Dismisses the application as inadmissible;
2. Orders the parties to bear their own costs.
Delivered in open court in Luxembourg on 14 April 1970.
Monaco Donner Mertens de Wilmars
A. Van Houtte R. Monaco
Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 4 FEBRUARY 1970
Mr President, of an official of the Commission of the Members of the Court, European Economic Community. This pro motion is not however being contested, as in In the proceedings with which I shall deal other cases, by candidates who were passed today we are concerned with the promotion over but by the person actually promoted, 1 — Translated from the German.