C-77/70
ECLI:EU:C:1971:68
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JUDGMENT OF THE COURT (FIRST CHAMBER) 16 JUNE 19711
Maurice Prelle
v Commission of the European Communities
Case 77/70
Summary
1. Procedure — Closure of the oral procedure — Request to the Court by one party for a measure of inquiry — Conditions for admissibility (Rules of Procedure, Article 59 (2))
2. Officials — Upgrading of post — Carrying out the duties of a superior career bracket — No grounds for reclassification
1. The application for a measure of en a career bracket higher than his own quiry made by one party after the may be one factor to be taken into closure of the oral procedure may account for the purposes of his pro only be granted if it relates to facts motion but is not in itself enough to which are capable of having a de justify the reclassification of his cisive influence and which the party post. concerned was not able to put for This is particularly so in departments ward before the closure of the oral where the duties assigned to servants procedure. in different grades are of a compar 2. The carrying out by an official of able nature and are for this reason tasks which also belong to a post in interchangeable.
In Case 77/70
Maurice Prelle , an official of the Commission of the European Com munities, residing at 18, Square Ambiorix, Brussels, assisted by Ernest Arendt, Advocate of the Cour superieure de Justice of the Grand Duchy of Luxembourg at the Chambers of the said Ernest Arendt, 34/B rue Phillippe-II,
applicant, v
Commission of the European Communities , represented by its Legal Adviser, Peter Gilsdorf, acting as Agent, with an address for service in Luxembourg at the offices of Émile Reuter, Legal Adviser to the Commission, 4 boulevard Royal, defendant,
1 — Language of the Case: French.
JUDGMENT OF 16. 6. 1971 — CASE 77/70
Application for the annulment of the decision of the Commission rejecting the application made by the applicant on 16 July 1970, and of a request for either the classification of the applicant in Grade A 3, as from 25 April 1970, or monetary compensation,
THE COURT (First Chamber)
composed of: A. M. Donner, President of Chamber, R. Monaco (Rapporteur) and J. Mertens de Wilmars, Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure he requested the Commission to draw the consequences in accordance with the The facts and procedure may be sum Staff Regulations and, more particularly, marized as follows: to classify him in Grade A 3 with effect On 26 January 1970, Maurice Prelle from 24 April 1970. brought an action for the annulment of The Commission replied by a letter of a decision of the Commission refusing 29 September 1970 rejecting his re to grant him, as from 24 July 1969, the quest. differential allowance provided for by On 19 November Mr Prelle lodged the Article 7 (2) of the Staff Regulations. application which is the subject of the He believed that as from 24 April 1969, present case. After hearing the report in addition to his own duties, he had of the Judge-Rapporteur and the views undertaken those of a colleague in of the Advocate-General, the Court Grade A 3, who had obtained leave on (First Chamber) decided to open the personal grounds. oral procedure without any preparatory The action was dismissed by the judg inquiry. ment of the Court in Case 5/70 of 16 The parties presented oral argument at December 1970. the hearing on 28 April 1971. In the meantime, on 16 July 1970 the The Advocate-General delivered his applicant lodged a complaint whereby, opinion at the hearing on 12 May 1971. after stating that the factual situation By a document dated 28 May 1971, the giving rise to the action had carried on applicant made a request for the hearing beyond the period of one year set out of witnesses in accordance with Article in Article 7 (2) of the Staff Regulations, 60 of the Rules of Procedure.
PRELLE V COMMISSION
II — Conclusions of the par sequence of two decisions of the Com ties mission: the decision promoting Mr Marchini-Camia to Grade A 3 in July The applicant claims that the Court 1968 and the decision to grant to this should: official at his request leave on personal 'Annul the decision of the Com grounds (as from 25 April 1969) which mission rejecting the abovementioned implied in the short term the applicant's application made by the applicant on deputizing for him in the long term a 16 July 1970; temporary posting or a decision to fill Rule that there are grounds for com
the post. pensation for the damage, both non- The applicant observes, with regard to material and material, suffered by the the nature of the duties in question, that applicant because of the existence and whereas in its letter of 29 September continuance of an administrative situa 1970 the Commission stated that 'the duties carried out are not linked to a tion which does not comply with the Staff Regulations. In compensation for post in a higher career bracket', never theless in its statement of defence in this damage, declare and adjudge: — either the applicant shall be classi Case 5/70 it had recognized that 'in fied in Grade A 3 as from 25 April practice the applicant had to take over 1970; the duties' of his colleague in Grade
A3. — or that the applicant shall be grant ed such monetary compensation as The defendant sees no contradiction between these two statements. The fact the Court shall deem appropriate; order the Commission, should this that in practice the applicant undertakes be necessary, to pay the said com the tasks which were previously carried pensation; and out by a colleague classed in Grade A 3 Order the Commission to pay the does not allow of any conclusion as to entire costs.' the level of these duties. In view of the structure of the legal department, it is The defendant submits that the Court not in fact impossible that duties of the
should: same level may be carried out by officials '1. Dismiss the application both as to of different career brackets. Certainly the principal and secondary claims the correspondence between the level of as unfounded; duties and the post—to which the grade 2. Order the applicant to pay the costs.' should correspond—is a basic rule, but there are natural limits to the applica tion of this rule where a certain type of III — Submissions and argu work corresponds to the description of ments of the parties duties belonging to posts of different
levels. This is precisely the case in the The submissions and arguments of the legal department, whose structure cannot parties may be summarized as follows: be adapted to the principle of a com The applicant states that the main object plete and absolutely rigid hierarchy. of the application is essentially to obtain Such a structure very often results in compensation for the non-material and the superimposing of career brackets, material damage suffered by him in his but it was chosen to achieve proper career by having to carry out, while in objects (the functioning of a department Grade A 4, the duties of a post in career with very divergent duties, the need to bracket A 3 for longer than the period have lawyers of general experience).
In of one year set out in Article 7 (2) of the addition it does not prejudice the rights Staff Regulations. The irregularity of his accruing to officials under the Staff position was the easily foreseeable con Regulations, either in making provision
JUDGMENT OF 16. 6. 1971 — CASE 77/70
for vacant posts or with regard to pro on a principle whereby each post, an motion or careers. Rather it encourages individual concept relating to each the harmonious continuation of a career official, is, for the purposes of its defini since officials may, without a change of tion, characterized by the nature of the post, which is always complicated, work duties attaching to it and, with regard in different areas of the law and thus to its place in the scale of posts, by the better prepare themselves to assume level of these duties.
It follows that two increased responsibilities. posts of the same level cannot be graded The defendant further observes, in the in different career brackets, one in A 3 alternative, that even if the applicant did, and the other in A 5/A 4. It is precisely as from 24 April 1970, undertake duties with this principle, which forms the legal undeniably belonging to the level of framework within which the institutions Grade A 3, it does not automatically are free to organise their departments, follow that he has a right to be classified that the system advocated by the Com
in this grade. Since the granting of an mission conflicts; according to that allowance for a temporary posting is system two posts, recognised to be of subject to an express decision of the the same level, are graded in two differ appointing authority, the final grading ent career brackets. In addition this should a fortiori be a matter for this system has the result of dividing officials authority. into two groups, those who benefit from The defendant contends that since the the guarantees of the Staff Regulations applicant was not given duties which linked to the scale of posts and to the were above his grade and his post, the definition of posts and those who are Commission has committed no wrongful excluded therefrom because of the act and therefore cannot be ordered to organization of the department to which pay him monetary compensation.
The they belong. For this reason it is con applicant has no right to such com trary not only to Articles 5 (1), 7 (1), 4 pensation, even if the contrary were and 29 of the Staff Regulations but also true, because it is impossible to see what to the principle which is set out in real damage he suffers merely because Article 5 (3) of the equality of career he is carrying out duties belonging to a conditions. higher level than that of his grade.
In other words, the Commission s con After giving details of certain facts con ception of the posts in the legal depart cerning in particular the organization ment is merely of a system where the (after the merger of the executives) of appointing authority distributes grades the department to which he belonged, without needing to take into account the applicant mainly criticizes the de the duties or their level. If this were fendant's conception of grades, career accepted by the case-law, this conception brackets and posts within this depart would open the way to arbitrariness with ment. out there being any judicial interpreta First, the applicant states that he does tion available to remedy the absence of not contest the principle of the force of counterbalances which the legislature res judicata attaching to the judgment would necessarily have provided, had it of the Court in Case 5/70 since this been led to choose such a system. judgment was delivered with regard to The attempt by the defendant to show temporary measures whereas the present that the 'particular' system applicable to application relates to a problem of final lawyers nevertheless did have counter grading. balances, is far from being convincing Citing in particular Articles 7 (1) and and merely underlines the futility of 5 (1) of the Staff Regulations, the appli
such advantages. cant observes that the system established The applicant asserts that the failure up by these provisions rests in the main to now to apply the second subparagraph
PRELLE V COMMISSION
of Article 5 (4) of the Staff Regulations, fact and law. In particular it denies that providing for the definition of the duties, the promotion of the colleague of the is a failure to act of which the administra applicant to Grade A 3 was linked to an tion cannot take advantage in this case. upgrading of his (former) post and thus He goes on to reply to a number of of the duties attaching to it. In fact the arguments of fact and of law put forward official concerned had been promoted by the defendant. With particular regard in another post and after his promotion to his request for reclassification he had continued to exercise at least on a replies that in any case it cannot be provisional basis the same duties as denied that if a situation contrary to the before. His former post (A 5/ A 4) had Staff Regulations is created adequate thereafter been declared vacant and had compensation in one form or another been occupied by another official. More must be made for this. The fact that a over the Commission states that it never subjective right to be reclassified cannot maintained that the post of the applicant be invoked by the applicant in the ab and that of his colleague were of the sence of a decision by the appointing same nature. On the contrary it had authority appointing him to the higher emphasized that the A 3 and A 4 posts post or giving him, on a permanent basis, of the legal department were distinguish the duties which he claims, is not an ed by the degree of responsibility which argument but merely begs the question. the officials had to assume, but that this In fact it was the Commission which did not exclude that for a certain time automatically set off the situation at issue they might exercise identical duties. by the effect of the rules for deputizing Neither did it state that posts in the which it set up itself, and which deter legal department which were graded mined the classification of the post in differently did not show marked differ question in Grade A 3. The principles ences with regard to the level of the of good faith provide that it should not duties. In spite of the overlapping of try to escape from the consequence of career brackets, there was a continuous its own decisions. The defendant replies grading of the level of functions accord by stating its position on a number of ing to the step in the hierarchy of posts particular remarks relating to points of within this department.
Grounds of judgment
1 This application is directed against a decision of the Commission rejecting the complaint made by the applicant on 16 July 1970.
2 In his application, the applicant has maintained that as he occupied a post in a higher career bracket of his category after the expiry of the period set out in Article 7 (2) of the Staff Regulations, he has a right to compensation for the non-material and material damage caused to him by the continuance of such an administrative situation, which fails to comply with the regulations.
3 In its judgment of 16 December 1970, given in respect of the same parties, the Court ruled that the applicant had no right to the differential allowance set out in Article 7 (2) of the Staff Regulations since the duties undertaken by the applicant did not necessarily imply greater responsibility than was normally his.
JUDGMENT OF 16. 6. 1971 — CASE 77/70
4 In his reply, the applicant gave details of his position stating that since it appeared from the abovementioned judgment that his duties were similar to those carried out by an official of Grade A 3, it followed that his post should be reclassified in the same grade and in the same career bracket.
5 Therefore he argues that he should be classified in Grade A 3 with effect from 25 April 1970 or in the alternative that the Commission should be ordered to pay him appropriate monetary compensation.
Admissibility of the request of 28 May 1971
6 By a document dated 28 May 1971, the applicant asked the Court to order, in accordance with Article 60 of the Rules of Procedure, the hearing of wit nesses in order to determine the level of the duties which he had undertaken in the post in question.
7 Since this request was presented at a time when, in accordance with Article 59 (2) of the Rules of Procedure, the oral procedure had been closed, it may only be admitted if it relates to facts which are capable of having a decisive influence and which the party concerned was not able to put forward before the closure of the oral procedure.
8 Since this was not so in this case, the request is inadmissible.
The substance of the case
9 The applicant, who is classified in Grade A 4 of the legal department of the Commission, undertook at least a substantial part of the duties of a colleague in Grade A 3 who was on leave on personal grounds from 25 April 1969 and who was re-integrated into the legal department on 1 January 1971.
10 The abovementioned judgment declared with the force of res judicata that, regard being had to the organization of the legal department of the (Commis sion, there was no marked difference between the duties attaching to the post occupied by the applicant and those attaching to the post which he occupied temporarily.
11 Nevertheless, the fact that an official carries out tasks which also belong to a post in a higher career bracket, although it may be a factor to be taken into account in respect of his possible promotion, cannot of itself suffice to justify a reclassification of his post.
PRELLE V COMMISSION
12 This is particularly so in departments such as the one to which the applicant belongs, where the duties assigned to servants in different grades are of a comparable nature and are for this reason interchangeable.
13 Therefore the assignment of the duties in question to the post occupied by the applicant cannot have the effect of upgrading the post and making it necessary to classify it in a higher grade.
14 For these reasons the principal conclusions in the application must be rejected.
15 With regard to the secondary conclusions, for the payment of damages, it follows from the foregoing considerations that the fact that the applicant had to assume the duties referred to cannot have caused him material or non- material damage for which compensation would be due to him.
16 Therefore the secondary conclusions must also be rejected.
Costs
17 The applicant has failed in his submissions.
18 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party shall be ordered to pay the costs.
19 Nevertheless Article 70 of those rules provides that the costs incurred by institutions in actions by servants of the Communities shall be borne by the institutions themselves.
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 treaties establishing the European Communities; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Com munities, especially Article 5; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
OPINION OF MR ROEMER — CASE 77/70
THE COURT (First Chamber)
hereby:
I. Dismisses the application;
2. Orders the parties to bear their own costs.
Donner Monaco Mertens de Wilmars
Delivered in open court in Luxembourg on 16 June 1971.
A. Van Houtte A. M. Donner
Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 12 MAY 19711
Mr President, with the question of nuclear research, Members of the Court, with the circulation of the knowledge acquired and with matters concerning As you know, the applicant in the patents and research agreements within action on which I am today giving my the scope of the European Coal and opinion originally worked for the Eura Steel Treaty. In addition he had tom Commission. From 1 February 1964 responsibility for problems of civil lia he was posted to the joint Legal Depart bility in the sphere of nuclear matters. ment of the executives of the Com By a decision of 24 July 1968 the col munities in the 'Euratom' section in league of the applicant was promoted to Grade A 5. With effect from 1 January Grade A 3 with effect from 1 July 1968 1965 he was promoted to Principle without there being any immediate Administrator in Grade A 4. After the alteration in the matters for which he formation of a single Commission in was responsible. In the course of 1969, 1967 the Legal Department was re to be exact from 25 April 1969, this structured. However the applicant re official received leave on personal mained in the 'Euratom and Research' grounds by a decision of the appointing Group which, at that time consisted of authority which was originally meant to one A 2 official (the head of the group) finish on 24 May 1970 but which how one A 3 official and two A 4 officials and ever later was regularly extended and, in which was responsible for questions of all, lasted until December 1970. During the application of the Euratom Treaty, this time the composition of the 'Eura of technological development and of re tom and Research' group in the Legal search in the sphere of the European Department of the Commission did not Coal and Steel Treaty. Together with alter (only with effect from 15 January another colleague in Grade A 4 the 1971 was another A 6 official posted to applicant was particularly concerned it). This meant that during the absence
1 — Translated from the German.