C-59/69
ECLI:EU:C:1970:70
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JUDGMENT OF THE COURT (SECOND CHAMBER) 9 JULY 1970<apnote>1</apnote>
Algiso Brembati v Commission of the European Communities
Joined Cases 59 and 71/69
Summary
1. Officials — Promotion — Classification in the new grade — Criteria — 'Notional' steps (First sentence of the second paragraph of Article 46 of the Staff Regulations of Officials)
2. Officials — Promotion — Classification in the new grade — Criteria — Basic salary (Second sentence of the second paragraph of Article 46 and Article 66 of the Staff Regulations of Officials)
1. The purpose of the first sentence of the distorting the system of scales of re second paragraph of Article 46 is, in muneration provided for in the Staff cases of promotion, to ensure by taking Regulations. into account the 'notional steps' that the seniority which may have been acquired 2. The purpose of the second sentence of the by the official concerned is maintained second paragraph of Article 46 is to for the purposes of future two-yearly ensure that an official who is promoted increments. The phrase 'throughout the to a higher grade is classified in such a span of the actual steps' must be in step of that grade that the basic salary terpreted as referring to the intermediate as fixed in the table appearing in Article intervals of remuneration between those 66 is at least equal to the basic salary steps, the last of which represents a limit payable in his former grade. which cannot be exceeded without
In Joined Cases 59 and 71/69
ALGISO BREMBATI, an official of the Commission of the European Communities, residing in Brussels, represented by Gianfranco Maris, Advocate of the Milan Bar, with an address for service in Luxembourg at the Chambers of Luigi Ronchi, 14 rue Batty-Weber,
applicant,
1 — Language of the Case: Italian.
JUDGMENT OF 9. 7. 1970 — JOINED CASES 59 AND 71/69
V
Commission of the European COMMUNITIES, represented by its Legal Adviser, Sergio Ventura, acting as Agent, with an address for service in Luxembourg at the Chambers of its Legal Adviser, Émile Reuter, 4 boulevard Royal,
defendant,
Application to determine the step and the seniority in step of the applicant follow ing his promotion to Grade A4;
THE COURT (Second Chamber)
composed of : P. Pescatore (Rapportuer), President of Chamber, A. Trabucchi and W. Strauß, Judges,
Advocate-General: J. Gand
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts of October 1968 as he had received in his former grade. By decision of the Commission of 24 On 7 February 1969, Mr Brembati sub January, 1969, Mr Algiso Brembati, an mitted a request to the Director General official of the Commission of the European for Personnel and Administration of the Communities, was promoted, with effect Commission : from 1 October 1968, without any change in his post, from Grade A5, Step 8, to (a) to be classified in Grade A4 and to be Grade A4, Step 4, with seniority in that step paid the basic salary corresponding to as from 1 November 1966. that grade rather than to Grade A5, In a letter of 30 January 1969, the Director- and with effect from 1 October 1968 General for Personnel and Administration rather than from 1 November 1968; of the Commission informed Mr Brembati that as the basic salary in his new grade was (b) to be awarded a step in Grade A4 100 BF less than that in Grade A5, he would corresponding to an actual, rather than be paid the same basic salary for the month a notional, basic salary which is not
BREMBATI ν COMMISSION
lower than that which he 'would have in that grade from 1 July 1968 and in that received' in his former grade; step from 1 August 1966. On the same day Mr Brembati was informed (c) for the administration to take into that, as a result of the change in the date on account the twenty-four notional steps which his promotion took effect, his new acquired in his former grade. basic salary was 100 BF lower than that received in Grade A5 and that for the month On 15 March 1969 the Commission paid of July 1968 he had been paid the basic Mr Brembati, together with his salary for salary received in his former grade. March 1969, the sum of BF 7100 by way of arrears due following his promotion. By letter of 17 March 1969, Mr Brembati
II — Procedure informed the Director-General for Person nel and Administration that in his opinion, even accepting the doubtful method of cal culation employed by the Commission, the As within two months he had received no sum paid in respect of four months' arrears reply from the Commission to his request (from November 1968 to February 1969) through official channels of 11 June 1969, should have amounted to BF 7 200 and Mr Brembati brought an application on asked whether the reduction of BF 100 in 15 October 1969 for the annulment of the his salary following his promotion was the implied decision of rejection resulting from result of a deduction. this failure to reply. On 1 April 1969, Mr Brembati received a This application was registered under reply to the effect that there had been a No 59/69. material error in this matter.
The Commission lodged its statement of This error was made good by a payment defence in Case 59/69 on 20 November 1969. made during October 1969. On 2 December 1969 Mr Brembati brought On 14 April 1969 the Director-General for a further application against the decision Personnel and Administration of the which had been notified to him by the letter Commission confirmed to Mr Brembati that dated 29 September 1969 from the Director- after reconsideration of his case it was General for Personnel and Administration apparent that the classification which had of the Commission. been notified to him was in accordance with This application was registered under
Article 46 of the Staff Regulations. No 71/69. On 11 June 1969, Mr Brembati submitted By order of 15 December 1969 the Second an application to the President of the Chamber of the Court decided to join Commission in which he requested: Cases 59/69 and 71/69 for the purposes of procedure and judgment. (a) to be awarded Step 5 in Grade A4 with On 29 December 1969 the Commission effect from 1 October 1968; lodged its statement of defence in Case
71/69. (b) to be awarded a notional seniority in The applicant lodged a reply in Joined that step which would take into account Cases 59 and 71/69 on 5 February 1970 and the seniority acquired in Step 8 of the Commission lodged a rejoinder of 6 Grade A5. March 1970. Upon hearing the report of the Judge- In a letter of 29 September 1969, the Rapporteur and the views of the Advocate- Director-General for Personnel and Ad General, the Second Chamber of the Court ministration informed Mr Brembati that the decided that it was not necessary to hold Commission had decided that 'promotions any preparatory inquiry. made within the career bracket for the The parties oral argument at the hearing financial year 1968 will take effect on 1 July on 27 May 1970. 1968' and that he had therefore been The Advocate-General delivered his opinion classified in Grade A4, Step 4, with seniority at the hearing on 18 June 1970.
JUDGMENT OF 9. 7. 1970 — JOINED CASES 59 AND 71/69
III — Conclusions of the parties must therefore be declared inadmissible for lack of any interest. After amending his first conclusions the On the other hand, the applicant maintains that the Commission dealt in both decisions applicant claims that the Court should: — declare the application to be admissible; with the promotion, the step and the date —principally: declare that, in the calcula on which such promotion took effect. The tion of the notional salary to which he second decision is unquestionably and is entitled in Grade A4, the Commission radically new, from the point of view both must take into account the twenty-four of the procedure and of the substance. It covers the entire breadth and scope of the months' notional seniority in step acquired in Grade A5/8; earlier decision, even as regards that part — in the alternative: declare that the which is substantially the same. It puts forward a new and different assessment of applicant must be classified in Step 5 of Grade A4 with effect from 1 July 1968, the problem as a whole. It has thus annulled the earlier decision, which no longer exists. without any seniority in step; — order the Commission to pay the costs. Case 59/69 now only concerns the costs which the Court cannot refuse to award to The Commission contends that the Court should: the applicant. Case 71/69 also concerns the substance of the action and the applicant — dismiss Application 59/69 as unfounded; has an undoubted interest in seeing his — declare that Application 71/69 is inad missible or, alternatively, dismiss it as argument accepted. The Court has rightly unfounded; recognized a connexion between them and — order the applicant to pay the costs has decided on the joinder of the two cases. according to the terms of Article 70 of the В — Substance Rules of Procedure.
1 — Submission based on the first sentence IV — Submissions and arguments of of the second paragraph of Article 46 the parties of the Staff Regulations
The submissions and arguments of the The applicant alleges that the Commission parties may be summarized as follows: has infringed the first sentence of the second paragraph of Article 46 of the Staff A — Admissibility of Application 71/69 Regulations, according to which each grade shall be divided into notional steps The Commission considers that the subject- corresponding to months of service and matter of Application 71/69 is the same as notional salaries rising by one twenty-fourth that of Application 59/69 and that the of the two-yearly increment for that grade decision to which it refers is not independent throughout the span of the actual steps'. of the first decision; the only amendment This provision means that 'throughout their made had concerned the date on which the span' each of the actual steps in each grade, applicant's promotion took effect. It was including the eighth, are divided into thus a partly confirmatory measure which, twenty-four notional steps. in so far as it makes no changes in the The intention of the Staff Regulations is to objective legal position defined by the protect the 'normal' development of the measure confirmed, cannot be regarded as career of an official who, on recruitment at any different from it. Such a measure may the first step of his grade, receives an not be validly contested on the basis of increment every two years. This direct submissions which only refer to factors progression would be interrupted if the last already contained in the earlier decision, step in the grade were not also divided into which have not changed. The applicant twenty-four notional steps as, of course, gives evidence of no interest in support of his promotion cannot always take place on the second application, different from that very day on which the official reaches the referred to in the first. Application 71/69 last step of his grade.
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However, contrary to the letter and the The applicant maintains that by awarding spirit of the first sentence of the second him Grade A4, Step 4, which corresponds paragraph of Article 46, the Commission to a basic salary of BF 40 800 when he was refused to credit the applicant, who had classified in Grade A5, Step 8, with a basic been classified in Grade A5, Step 8, for salary of BF 40 900, the Commission in more than twenty-four months, with the fringed the second sentence of the second maximum twenty-four notional steps ac paragraph of Article 46 of the Staff Regu quired in that step. lations of Officials which provides that : 'An For its part, the Commission considers that official appointed to a higher grade shall no more notional steps exist beyond the last in no case receive a basic salary lower than actual step of each grade, from which an that which he would have received in his official appointed to a higher grade might former grade'. benefit in his new grade. It follows from Article 46 that the salary The notional steps correspond to months which the promoted official 'would have of service representing a series of potential received' is made up of the salary which he increases in salary which are justified to the was receiving at the time of his promotion, extent to which an official may rise auto as increased by the twenty-four notional matically, through the mere passage of time, months of service acquired in the step which to a new step involving a higher salary in the he held. same grade. Once an official has reached the final step in a grade, it is no longer The Commission awarded the applicant a possible to rise automatically to a higher basic salary which was not only lower than that which he 'would have received' but was salary and there is no further reason for the lower than that which he was receiving. notional steps to exist.
2 — Submission based on the second The applicant sets out as follows the solu sentence of the second paragraph of tions which would have conformed with the Article 46 of the Staff Regulations Staff Regulations:
If he is entitled to have taken into account If he is not entitled to have the twenty-four the twenty-four notional months of service notional months of service taken into acquired, at the time of his promotion, in account : the step he had then reached: BF 40 900 basic salary in Grade A5/8 BF 40 900 basic salary in Grade A5/8 BF 1 700 24/24 notional steps 0
BF 42 600 notional salary which he 'would BF 40 900 notional salary which he 'would have received' have received' BF 1 700 two-yearly increment pursuant BF 1 700 two-yearly increment to the second sentence of the second paragraph of Article 46 BF 44 300 BF 42 600
There is thus reason to award the applicant This sum corresponds to Step 4 of Grade Step 5 in Grade A4, with a basic salary of A4. In order to comply with the second BF 42700 and a notional salary of BF 44 362 sentence of the second paragraph of Article corresponding to the twenty-first notional 46 it is necessary to award the applicant the step in Step 5. basic salary in the step next above (BF 42 700), that is, Step 5, without any seniority in step.
JUDGMENT OF 9. 7. 1970 — JOINED CASES 59 AND 71/69
In the opinion of the applicant the aim of the tation put forward by the applicant would second sentence of the second paragraph be to ensure that every official appointed to of Article 46 is to alter, in the cases to which a higher grade is classified 'not lower than it relates, the classification fixed on the basis the initial step in that grade', which would of the first paragraph alone, to which it render superfluous the final paragraph of makes an express exception. Article 46 which expressly provides that this Contrary to the wording of the text the shall be the case. interpretation put forward by the Commis sion only awards an official the salary which 3 — Submissions based on the first para he was already receiving before this pro
graph of Article 62 of the Staff motion, although under the regulations he Regulations must continue to receive the basic salary 'which he would have received' in his former The applicant maintains that under the grade. terms of the first paragraph of Article 62 The Commission replies that the application of the Staff Regulations: 'In accordance of the first paragraph of Article 46 of the with Annex VII and save as otherwise Staff Regulations, which provides that 'An expressly provided, an official who is duly official appointed to a higher grade shall, appointed shall be entitled to the remunera in his new grade, have the seniority corres tion carried by his grade and step'. ponding to the notional step equal to or In contravention of this provision the next above the notional step reached in his, Commission awarded him in respect, first, former grade, plus the amount of the two- of October and later of July 1968, the salary yearly increment for that grade' involved carried by Grade A5, Step 8, although he the classification of the applicant in Step 4 was promoted to Grade A4. of his new grade.
In fact, as it was impossible The Commission maintains that the first to award the 'notional step . . . reached in paragraph of Article 62 must be interpreted (his) former grade', it was necessary to take in the light of Article 46. into account the salary received, by the The 'remuneration carried by his grade and applicant in Step 8 — the last step in step' to which an official is entitled is that Grade A5 — plus the amount of the two- which corresponds to the new grade and yearly increment for that grade, that is, 40 900 + 1 700 = BF 42 600.
In the table step to which he has been appointed under of notional steps in Grade A4, the notional the first paragraph of Article 46. Where, as in this instance, this remuneration is lower salary next above is BF 42 620.83. The than that received in his former grade, the applicant was thus classified in Step 4 of second sentence of the second paragraph Grade A4 with a notional seniority of 23 of Article 46 allows the payment of the months in that step. salary previously received, although it is As the basic salary payable in Grade A4, higher .than that resulting from the joint Step 4, was BF 100 lower than that received application of the provisions of the first in his former grade the applicant was paragraph of Article 62 and the first
informed that, in accordance with the paragraph of Article 46. second sentence of the second paragraph of Article 46, he would continue to receive the salary paid before his promotion until 4 — Submission based on the principle of such time — one month later — as he. was equality of treatment entitled to a higher salary in his new grade. At all events, the second sentence of the The applicant observes that another official second paragraph of Article 46 cannot be of the Community, who was promoted in interpreted as capable of changing the the same circumstances as he, was im classification fixed on the basis of the first mediately awarded Step 5 of Grade A4 as
paragraph. It merely constitutes a safe well as notional seniority in that step. guard clause of a purely financial nature. The Commission replies that the case It refers only to 'salary' and not to 'classifi referred to by the applicant is similar but cation'. Moreover, the effect of the interpre- not identical to his own. In that instance it
BREMBATI ν COMMISSION
was necessary to take into account a ECSC, which led the Commission to award compensatory allowance paid to the official him the salary corresponding to the third concerned by the High Authority of the notional step following Step 5 of Grade A4.
Grounds of judgment
1 By an application dated 15 October 1969 the applicant instituted proceedings for the annulment of the implied decision of rejection resulting from the failure of the Commission to give any reply to his request through official channels submitted on 11 June 1969 concerning his classification following promotion from Grade A5 to Grade A4. (Application 59/69).
2 As a subsequent decision of the Commission of 29 September 1969 altered the applicant's position in certain respects, he lodged an application against that decision on 2 December 1969. (Application 71/69).
I — Admissibility
3 The Commission contends that Application 71/69 is inadmissible in that it lacks legal interest as its subject-matter is no different from that of Application 59/69.
4 Although the decison of 29 September 1969, which forms the subject-matter of Application 71/69, did not satisfy the applicant's claims, it did, however, alter his seniority of grade and step in some respects.
5 Therefore, in order to safeguard the chances of success of his original application, the applicant had a legal interest in lodging another application against this new decision.
б As the Court has ordered the joinder of these two proceedings it is unnecessary to consider to what extent, if at all, the new application rendered the first application pointless.
7 For this reason the two applications must be declared jointly admissible.
JUDGMENT OF 9. 7. 1970 — JOINED CASES 59 AND 71/69
II — Substance
1 — Submission based on the first sentence of the second paragraph of Article 46 of the Staff Regulations
8 The applicant alleges that the Commission has infringed the first sentence of the second paragraph of Article 46 of the Staff Regulations by failing to take into account, for his classification in the scales of remuneration for Grade A4, the 'notional steps' which he had reached through having been classified for more than twenty-four months in Step 8 of Grade A5
9 Under the terms of the first paragraph of Article 46 of the Staff Regulations an official appointed to a higher grade shall, in his new grade, have the seniority corresponding to the notional step equal to or next above the notional step reached in his former grade, plus the amount of the two-yearly increment for that grade.
10 For the application of this provision, the first sentence of the second paragraph of the same article states that 'Each grade shall be divided into notional steps corre sponding to months of service and notional salaries rising by one twenty-fourth of the two-yearly increment for that grade throughout the span of the actual steps'.
11 The purpose of this provision is in case of promotion to ensure that the seniority which may have been acquired by the official concerned is maintained for the purposes of future two-yearly increments.
12 Thus, the monthly progression envisaged by the provision in question cannot continue beyond the eighth step which forms the salary ceiling in Grade A5.
13 This is the meaning of the expressions 'notional step' and 'notional salary' which refer to possible rather than to imaginary steps in the scale of remuneration, as would be those which continued beyond the maximum level of remuneration laid down in the table in Article 66 of the Staff Regulations.
14 It appears therefore that the phrase 'throughout the span of the actual steps' must be interpreted as referring to the intermediate intervals of remuneration between those steps, the last of which represents a limit which cannot be exceeded without distorting the system of scales of remuneration provided for in the Staff Regulations.
BREMBATI ν COMMISSION
15 The result of this is, in this instance, that the monthly progression envisaged by the first sentence of the second paragraph of Article 46 cannot therefore exceed the eighth of Grade A5.
16 For this reason the submission based on the first sentence of the second paragraph of Article 46 must be rejected.
2 — Submissions based on the second sentence of the second paragraph of Article 46 and on the first paragraph of Article 62 of the Staff Regulations
17 The Commission classified the applicant in Step 4 of Grade A4 with a notional seniority of twenty-three months by applying, for this purpose, the rule appearing in the final section of the first paragraph of Article 46 of the Staff Regulations.
18 By virtue of this provision the Commission chose as the basis of calculation the salary received in the former grade plus the amount of the two-yearly increment for that grade, and took into consideration the 'notional salary' next above.
19 As the salary calculated in this way was BF 100 lower than that received in his former grade, for one month the Commission continued to pay the remuneration received before promotion, until the official concerned could attain the salary carried by the higher step, that is, Step 5 of Grade A4.
20 The applicant considers that to determine his salary in this way is contrary to the rule contained in the second sentence of the second paragraph of Article 46, which entitles him to be paid immediately not less than the basic salary attaching to Step 5 of Grade A4.
21 For the reasons set out above, the provisions contained in the first paragraph and the first sentence of the second paragraph of Article 46 concerning the determina tion of seniority on the basis of notional steps for the purposes of a future rise to a higher step of remuneration in the new grade were not applicable to the applicant.
22 For this reason the applicant's salary ought to have been fixed by applying the rule contained in the second sentence of the second paragraph of Article 46 of the the Staff Regulations according to which: 'An official appointed to a higher grade shall in no case receive a basic salary lower than that which he would have received in his former grade'.
JUDGMENT OF 9. 7. 1970 — JOINED CASES 59 AND 71/69
23 The application of this provision depends on a comparison to be made between the 'basic salary' to which an official is entitled in his new grade and the 'basic salary' which he would have received had he not been promoted.
24 The concept of 'basic salary' laid down in Article 62 of the Staff Regulations is set out in detail in Article 66, according to which basic salaries are determined for each grade and step by a table of figures forming an integral part of that same provision.
25 In this instance, therefore, the comparison envisaged by the second sentence of the second paragraph of Article 46 must be made between, first, the basic salary carried by Step 8 of Grade A5 and, secondly, the basic salary carried by the corresponding steps in Grade A4.
26 As the basic salary carried by the fourth step of Grade A4, as fixed by the table which was in force when the contested decisions were taken, was lower than the basic salary which the applicant would have received in his former grade, the Com mission should have awarded him the step next above.
27 Therefore, the submissions based on the second sentence of the second paragraph of Article 46 and the first paragraph of Article 62 are justified to the extent to which they refer to the applicant's classification at the time of his promotion in the fifth step of Grade A4, without any seniority in step.
III — Costs
28 Under the terms of Article 70 of the Rules of Procedure, in proceedings by officials of the Communities institutions shall bear their own costs.
29 The applicant has failed in his principal head of claim.
30 Although his alternative conclusions have been accepted it must be found that, apart from a minimal difference, they have only confirmed the practical result of the decisions in question.
31 In these circumstances, it is reasonable for the applicant to be ordered to pay the costs incurred by him.
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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 Staff Regulations of Officials, especially Articles 45, 46, 62 and 66 ; Having regard to the Protocols on the Statute of the Court of Justice annexed to the Treaties establishing the ECSC, the EEC and the EAEC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 43, 69 and 70,
THE COURT (Second Chamber)
hereby :
1. Annuls the contested decisions to the extent to which they refused to classify the applicant on his promotion in the fifth step of Grade A4 without any seniority in step;
2. Orders the parties to bear their own costs.
Pescatore Trabucchi Strauß
Delivered in open court in Luxembourg on 9 July 1970.
A. Van Houtte P. Pescatore
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL GAND DELIVERED ON 18 JUNE 1970<apnote>1</apnote>
Mr President, European Communities, against the deci Members of the Court, sions determining his step and seniority in step will lead the Court to decide on the The applications brought by Mr Brembati, meaning and scope of the rather complex an official of the Commission of the provisions of Article 46 of the Staff
1 — Translated from the French.