C-37/71

JUDGMENT OF THE COURT (FIRST CHAMBER) 28 JUNE 1972<apnote>1</apnote> .

Michel Jamet v Commission of the European Communities

Case 37/71

Summary

1. Officials — Appeal against an administrative decision — Partial annulment requested — Submission not concerning public policy — Annulment of the entire decision not per­ missible

(Staff Regulations of Officials of the European Communities, Article 91)

defendant,

1 — Language of the Case: French.

JUDGMENT OF 28.6.1972 — CASE 37/71

Application, principally, for the reclassification of the applicant in Grade B 3 with effect from 26 August 1965 or, alternatively, for his appointment to a post as designer and for his promotion to Grade B 3 with effect from 1 December 1970.

THE COURT (First Chamber)

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

JAMET v COMMISSION

4. By a decision signed on 3 February 1971 2. Alternatively and notified to the applicant on 25 February 1971 he was appointed to the — partially annul the instrument of ap­ post of laboratory technician in Grade pointment and promotion of 3 February B4, Step 1 (in principle the career bracket 1971 in so far as it describes the post to of laboratory technicians is B5-B3). which the applicant is appointed as that 'of laboratory technician' and provides 5. On 3 March 1971 the applicant sub­ that the grade to which the applicant mitted a complaint against this appoint­ is promoted is Grade B4; ment as follows: — decide, or at least rule that the post to 'The instrument promoting me mentions which the applicant is appointed is "laboratory technician" which does not that of designer and that he is, or at correspond in any way to my duties which least, should be promoted to Grade are those of a designer. Would you there­ B3, the step within that grade being fore be good enough to make an appro­ decide by application of Article 46 priate amendment to the instrument'. of the Staff Regulations and the seniority in this grade starting to run from 1 Since he received no reply to this complaint December 1970 and at the step con­ ferred on 1 December 1969 with all the the applicant lodged this application on 2 July 1971. legal consequences arising therefrom, especially the payment of arears of salary from 1 December 1970. 6. After hearing the report of the Judge- Rapporteur and the views of the Advocate- 3. In any event General, the Court decided to open the oral procedure without any preparatory — annul the implied decision of rejection inquiry. of the complaint lodged on 3 March The parties presented oral argument on 1971 and registered on 18 March 1971; 17 February 1972. The Advocate-General delivered his — order the defendant to bear the costs. opinion at the hearing on 4 May 1972.

tion to the Court against keeping the The subsidiary claim is thus inadmissible. applicant in Grade C2 has thus long since The applicant replies that the Court would expired. not encroach upon the prerogatives of the The applicant replies that although the administration if it were to rule in favour above-mentioned implied and express of the conclusions seeking the amendment decisions cannot now be contested the of both the description of the post held by decision of 3 February 1971 appointing the applicant and of his grading.

The designer in a careeer bracket B3-B2 and, sole question at issue is thus to apply the moreover, the applicant is by no means a legal provisions to a specific administrative situation. trainee since he has performed these duties since 1965. In addition it is impossible to base an The defendant replies that the appointment argument on the fact that the alleged of the applicant to Grade B4 in no way purpose of the application is to have the involves recognition that he performed the applicant appointed to a post which is not duties relating to the post of designer. vacant when he has not been included in Grade B4 is not a starting grade in the the list of officials eligible for promotion career bracket of designer but a laboratory to B3. In fact a post as a designer was technician grade to which the applicant vacant but it was arbitrarily decided that was appointed because he had shown the this post should be classified in Grade ability for the career bracket of a designer B4; furthermore officials eligible for but this does not imply acknowledgement promotion to B 4 were in fact officials of the fact that he was actually performing destined to become designers and thus all the duties of a designer. eligible for promotion to B3.

JAMET v COMMISSION

didates). The applicant nevertheless claims staff), but should have been appointed to that the Court should accord him the right Grade B3. to promotion to Grade B3 which cannot Secondly, the applicant asserts that the be granted without failing to observe the decision taken infringes the principle of the provisions of the Staff Regulations and its strict correspondence between the grade budgetary feasibility. and the basic post formally established by Articles 5 and 92 of the Staff Regulations 3. Admissibility of the application against of Officials. the decision rejecting by implication the In the present case the applicant, who has complaint of 3 March 1971 the abilities of a designer, has for a long time in practice performed the tasks of a In the rejoinder the defendant observes designer. The instrument appointing him that this application which is intended to dated 3 February 1971 confirms that the have the decision of promotion amended applicant carries out the duties of a is also inadmissible since it would lead to a designer corresponding to the basic post declaration by the Court that the promo of a designer in Grade B3, even if the tion to Grade Β4 is unlawful because it defendant termed this post 'laboratory should have been to Grade B3 and an technician' in order to be able to classify order that the defendant promote the the applicant in Grade Β4. applicant.

The defendant replies that the applicant The applicant asserts that the post to has failed to establish that the duties which he was appointed by the instrument which he performs are those of a designer of 3 February 1971 is a post as designer and that in' the present case his long ex-

It adds that the decision it adopted ap­ Furthermore, the defendant has itself pointing the applicant to Grade B 4 admitted that the applicant performed the forms part of a policy intended to enable duties of a designer since it stated in its draughtsmen graded in Category C to statement of defence that it assigned to make the transition into Category B more Grade B4 officials 'suited to the career easily by means of the promotion of bracket of designer' and 'who continue to draughtsmen who have shown their quali­ perform their duties as draughtsmen whilst fications for the career of a designer to the carrying out certain projects'. post of laboratory technician in Grade B4. Such designers do not in fact perform 4. The defendant replies that the applicant the duties of a laboratory technician but has failed to show with a sufficient degree this does not affect them adversely because of proof that either since 1965 or since the without such promotion they would date of his promotion to B4 he has been remain in Category C as they do not fulfil performing in full all the duties of a all the conditions for promotion to the designer. post of designer. Even although in various periodic reports mention is made of 'trainee designer' this is 3. The applicant replies that the practice because from time to time the applicant relied upon by the Commission is unlaw­ was required to carry out simple projects. ful. In fact the Commission cannot claim Nevertheless this does not prove that he to draw a distinction between designers carried out in full all the duties of a designer and trainee designers and appoint the in Grade B3. Such a designer carries out latter to Grade B4 which corresponds to a regularly, not mrerely occasionally as do post the duties of which are not performed all draughtsmen, more comprehensive by the applicant. When a designer is at projects and series of projects. The fact the beginning of his career he must be that the applicant has been carrying out appointed to the starting grade in the certain projects for some time still does not career bracket of designer otherwise all establish that he had carried out in full starting grades in all career brackets for the new duties of a designer.

4 Since the competent authority did not reply to this complaint the applicant lodged this application before the Court.

5 The application is principally for a decision that the applicant should be classified in Grade B3 with effect from 26 August 1965.

6 This first head of claim must be dismissed as inadmissible since that request has already been the subject of previous implied decisions of rejection which were not contested within the period laid down in Article 91 of the Staff Regulations of Officials.

7 The applicant objects that the decision of 3 February 1971 recognizes by implica­ tion that the requests previously rejected were well-founded and thereby constitutes a new fact which re-opens the period for lodging an application against those decisions.

8 Without it being necessary to consider to what extent a new fact is capable of re-opening a period for lodging an application which the person concerned has allowed to expire, it is sufficient to state that, far from having the meaning which the applicant attaches to it, this decision expressly guides that it will only take effect from 1 January 1971.

9 Secondly the application is for the partial annulment of the instrument, appoint­ ment and promotion of 3 February 1971, 'in so far as it describes the post to which the applicant is appointed as that of a laboratory technician and refers to the grade to which he is promoted as Grade B4'.

Substance of the case

is Before the decision of 3 February 1971 the applicant had for several years held the post of draughtsman which in accordance with Annex I(B) to the Staff Regula­ tions corresponds to career bracket C4-C1 on the office staff of the Scientific and Technical Services of the Joint Nuclear Research Centre.

16 During this period various periodic reports were drawn up concerning him the last of which, relating to the period from 1 July 1965 to 30 June 1967, states as the principal duties performed 'trainee designer, electromechanical design and plan­ ning'.

17 According to the above-mentioned annex, the post of draughtsman corresponds to a career bracket covering Grades C4-C1 and the post as designer corresponds to a career bracket covering posts B3-B2.

18 It was intended that those two career brackets should be filled by the Design Office staff of the Joint Research Centres.

19 Two grades correspond to the career bracket of designer which, according to the description of duties, involve posts defined as follows :

22 According to the description of duties, a laboratory technician in Grade Β4 is responsible for carrying out experiments and tests in various sectors and assem­ bling and classifying the results and is therefore a member of the laboratory staff.

23 The defendant has stated that the duties actually performed under the incorrect description of laboratory technician correspond to those of a draughtsman who has shown that he has the ability to occupy the post of designer and who, in addition to the usual duties of draughtsmen with which he is entrusted, occasion­ ally carries out complete, albeit simple, projects without however performing all the duties which distinguish the post of designer from that of draughtsman.

24 The applicant has not contested that he did not perform all the duties of a designer.

25 On the contrary he asserted that this fact was unimportant because, since the appointing authority did not keep him in the post of draughtsman in Grade C1, it should inevitably have appointed him to the post and grade of a designer.

26 Whilst it is established that the applicant has the ability required for the post of designer it is however not established with a sufficient degree of proof that he in fact regularly performs all the duties constituting the said post.

27 There is no doubt that the legality of the decision in question is very uncertain in that it allocates to an official a post in Grade Β4 the duties of which were not performed by him, as was known, but this fact does not prove that the applicant performed duties corresponding to the post and grade in which he requests to be re-graded.

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 Treaty establishing the European Economic Community; Having regard to the Staff Regulations of Officials, especially Articles 5 and 91 and Annex I (B) ; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70,

THE COURT

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.