C-28/72
ECLI:EU:C:1973:85
- Súd
- Súdny dvor Európskej únie
- IČS
- 61972CJ0028
- Zdroj
- eur-lex.europa.eu ↗
JUDGMENT OF THE COURT (SECOND CHAMBER)
12 JULY 1973 1
Leandro Tontodonati
v Commission of the European Communities
Case 28/72
Summary
Officials — Tasks — Level higher than grade — Reclassification — Acceptance —
Right — Absence
(Staff Regulations, Art. 5)
Fulfilment by an official of tasks on a with promotion but does not give him level higher than his grade can be a the right to be reclassified. factor to be borne in mind in connection
In Case 28/72
Leandro Tontodonati , an official of the Euratom Joint Research Centre at
Ispra, resident at 18 Via Bligny, Varese, represented by Giuseppe Pellicini, of the Varese Bar, and by Victor Biehl, of the Luxembourg Bar, having chosen his address for service in Luxembourg in the chambers of Me Biel at 71, rue des Glacis,
applicant,
Commission of the European Communities , represented by its legal adviser Giorgio Pincherle, acting as agent having chosen its address for service c/o its legal adviser, Emile Reuter, 4 boulevard Royal,
defendant,
Application for annulment of the defendant's implied rejection of the
applicant's claim to be re-graded in Category B,
1 — Language of the Case: Italian.
JUDGMENT OF 12. 7. 1973 — CASE 28/72
THE COURT (Second Chamber)
composed of: P. Pescatore (President), M. Sørensen and A. J. Mackenzie
Stuart (Rapporteur), Judges,
Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Statement of facts qualifications and record justified his classification in grade B. The facts on which this dispute is based As there was no reply to the claim, Mr can be summarized as follows: Tontodonati brought an application On 20 February 1963 Mr Leandro against the Commission of the European Tontodonati was, with effect from 1 Communities on 18 May 1972. January 1962, appointed Principal Clerical Officer of the EAEC at the Joint The Inventory Section at Ispra forms part of the Centre's Supply and Finance Research Centre at Ispra in grade C 1, Division. Although there was no post of incremental step 1. 'Head of Inventory Section', the Section In its judgment of 15 December 1971, in operated under a grade B 1 official, Mr Case 17/71, the Court of Justice rejected Rousseau, who was assisted by Mr as inadmissible as being out of time an
Tonto Scaramucci, an official in grade B 4, and application submitted by Mr the applicant. Between June 1969 and donati against the Commission on 13 October 1971, Mr Scaramucci was ill April 1971 for failure to change his and shortly after his return to work, he designation and re-grade him retrospec
was transferred from the Supply and tively in Category B. Finance Division to the Personnel and
In a claim based on Article 90 of the Administration Division. Staff Regulations, dated 31 January The duties previously carried out by Mr 1972, Mr Tontodonati asked the Rousseau and Mr Scaramucci have for President of the Commission to place the most part been taken over by the him in Category B with effect from applicant. February 1971. In support of this claim,
the applicant stated that, since January 1971, he had been responsible for the
inventory section at the Ispra research II — Submissions of the
centre and that therefore the principle of parties
equal treatment, the importance of the
establishment at Ispra, the regulations of The applicant submits that the Court the Joint Research Centre, as well as his should grant him a classification in
TONTODONATI v COMMISSION
Category B, effective from February maintains that developments purporting 1971: to be new must consist of precise
The defendant submits that the Court expressions of the management's
should declare the application inadmissi intentions. ble or unfounded and should order the In the light or these considerations the applicant to pay the costs of the defendant denies the existence of any application. new development in February 1971, and
submits that, because of this the
application is inadmissible as the Ill — Pleas and arguments management's silence merely confirmed of the parties the decision taken in 1963.
In reply, the applicant states that the The pleas and arguments advanced by former head of the Inventory Section at the parties can be summarized as the Ispra establishment has not returned follows: to work in the section because he now
works in the Personnel and A — On admissibility Administration Division. The same The applicant contends that the fact that applies to the other official who was he has carried responsibility for the responsible for keeping the inventory up inventory section at the Ispra to date. Consequently the applicant is at
establishment since February 1971 the moment substantive head of the constitutes a new development which is inventory section. of a nature sufficient to justify his claim In reply, the defendant concedes that the for re-classification from that date. head of the section was transferred on 1 The defendant contends in reply that the August 1971 and that there was development alleged by the applicant to the consequently a partial extension of be new amounts to nothing more than, duties. applicant's
as a result of illness on the part of the
head of the inventory section at the Ispra B — Merits establishment, the temporary discharge (from February to May 1971) of The applicant contends that the
functions normally carried out by the requirements of equal treatment should
latter. It is a case of a temporary mean his classification in Category B extension of functions set out in the from 1 February 1971, as officials job-description as 'main duties allocated responsible for the inventory in other and discharged'. departments have all been placed in
The defendant denies that the applicant Category B in accordance with a specific in Ispra. In of the Joint Research Centre. was charge of inventory at regulation
this connection, the defendant points out The classification of the applicant in this
that instructions to the category is all the more necessary in relating of the importance of the maintenance of the inventory were view
communicated to various members of establishment at Ispra when compared
staff, including the applicant, to ensure with the others. Besides, the report on
that he was aware of decisions affecting the applicant's work show that his duties the sector in which he carried out his are appropriate to his training and duties. abilities. The Commission itself regards him as head of inventory at Ispra. Keeping the inventory up to date tell
within the responsibilities of another The defendant comments that when the
official who, because of absence due to exigencies of the service require an
illness, was temporarily replaced by the official temporarily to assume the
applicant from October 1970 until functions of a colleague this in no way September 1971. The defendant entails an obligation on the employer's
JUDGMENT OF 12. 7. 1973 — CASE 28/72
part to place him in the same grade as According to the applicant's report in the latter. Promotion to a higher the Commission's files, his duties category is governed by Article 45 (2) of consisted in indexing material ordered the Staff Regulations, and no exceptions by the establishment at Ispra for can be allowed. Replacement by the inventory purposes, in deciding whether applicant de facto of a colleague in a it was capable of being inventoried, and higher grade does not entitle the in checking that it was what had been administration to classify him in a higher ordered. When he acted for Mr. grade. Rousseau, the applicant was also
responsible for following the procedures The defendant relies on the j'udgment of laid down for bringing the inventory up the Court in case 77/70 according to to date and for distribution of supplies, which the fact that an official carries out he was responsible for coordination of duties appropriate to a higher-graded his inventory with the general inventory post is insufficient to justify regrading. and for mechanical duplication of stock Replacement must not be confused with records. The applicant works within the re-assessment of the value of an existing framwork of the Finance and Supply job as a result of which its Division under the supervision and responsibilities are given a different and direct instructions of the Head of enhanced rating. In this connection the
judgments Division, M. Metger. defendant cites the of the The level of classification is fully Court in Cases 70/63 and 26/67. justified; in this connection, it is As regards parity of treatment with sufficient to compare his functions with
officials employed in other departments those in the table showing basic posts.
of the Joint Research Centre the From this it is clear that the applicant
defendant points out that if, at Karlsuhe, has not been given duties on a level of
an official in Category B4 discharges reponsibility higher than that of his responsibilities corresponding to those of grade.
the applicant, he has, in addition, the The functions laid down for a 'Principal Officer' duty to make analytical returns on the Clerical and the different stores and to deal with purchases. In functions which have been quoted as
other departments, the applicant's examples of work at this level functions are carried out by employees correspond exactly with the functions in Category C. Moreover, the defendant carried out by the applicant, who on the denies that there are any relevant basis of these comparisons could be provisions in Regulations. described as a 'stores manager'
(to keep within the titles used in the table) or as a The applicant states in return that he is 'Principle Filing Clerk'. It is relevant to now a post whose previous occupying bear in mind duties that similar to those occupant was Mr Rousseau, an official carried out by the applicant (stores in grade B, but who is no longer in the accounts clerk, accounts clerk, machine inventory section. C 2/3, operator etc) are rated at grade
The defendant's reply to this is that it and therefore clearly within the compass
was only after the statement of defence of the higher grade. had been lodged that it was informed of However, even if the extension of the
the transfer and appointment of Mr applicant's functions was in fact Rousseau to a job in the Personnel and maintained without alteration after Mr Administration Division on 1 August Rousseau had been transferred, it was
1971, which was shortly after his return not of such a nature as to raise the
to work after a long illness. The functions discharged by Mr Tontodonati defendant maintains that this transfer out of the group normally allocated to
has no effect on the applicant's category C1 officials in the table of
classification. basic posts.
TONTODONATI v COMMISSION
At the public hearing, the defendant administration to be placed on the file added that, in assessing the value of a and to require the Commission to
post, particular account is taken of the produce them.
number of people working under the The applicant also requests the Court to official concerned. As the applicant had give instructions for inclusion in the file no one working under him, no of documents to the grade of relating re-evaluation of his job was called for. officials appointed to the Inventory The applicant adds the following Sections and to require their production argument: Though the Staff Regulations by the departments concerned. do not provide for job re-evaluation and The defendant points out that it has he himself cannot be promoted without never disputed that Mr Rousseau is in competition, the Regulations provide the grade B 1. As an annex to the statement possibility of holding a competition. In defendant is supplying of defence, the its judgment, the Court can lay down the the personal files of three officials steps to be taken to resolve the dispute, employed respectively by the establish
particularly those which would make up ments at Petten, Geel and Karlsruhe. for the management's failure to act. In support of this view, the applicant
quotes the decisions of the Court in the
following cases: IV — Procedure — Lassalle v Parliament (15/63) Recueil 1964, p. 57, After the Advocate-General had been — Bourgaux v Parliament (1/56) heard, and as a result of the
Recueil 1955-56, p. 421, Judge-Rapporteur's report, the Court
Krawczynski Commission (Second Chamber) decided to open oral — v (83/63) Recueil 1956, p. 773. proceedings by inviting the Commission to reply during the hearing to questions designed to clarify the present position
of the applicant. The oral arguments of C —
Discovery the parties were heard during on 5 April 1973. The applicant formally requests the
Court to order the documents which The Advocate-General presented his establish Mr Rousseau's position in the opinion at the hearing on 30 May 1973.
Grounds of judgment
1 By letter of 31 January 1972, addressed to the President of the Commission, the applicant, an official at the Joint Research Centre at Ispra, submitted a claim to be classified in Category B, with retrospective effect from February 1971;
Not having received any reply to the claim, he brought the present action before the Court, under the second paragraph of Article 91 (2) of the version of Staff Regulations applicable at that time.
JUDGMENT OF 12. 7. 1973 — CASE 28/72
On admissibility
2 The Commission maintains that the action is inadmissible on the ground that the implied refusal, arising from the President of the Commission's silence, was no more than confirmation of a previous decision which was no longer open to challenge.
3 The applicant states that a new development, which substantially changed the circumstances in which his grade was fixed when he was first established, took place in January 1971.
In this connection he points out that the official in charge of the Inventory Section fell ill in January 1971 and did not resume his previous duties on
recovery, having been transferred to another department in August 1971. The latter's assistant has also definitely ceased to belong to the Inventory Section; as a consequence, the applicant is carrying out all the tasks of the Section by himself.
4 During the oral proceedings, the defendant admitted that these statements were correct. The service has, in fact, been re-organized, resulting in an
extension of the scope of the applicant's duties. It was, therefore, in order for the latter to ask the Commission to review his position in the administration in view of the changes which had taken place in the structure of the
department to which he belonged.
5 The implied rejection of his claim constitutes, therefore, an act adversely
affecting the applicant.
His application is, accordingly, admissible.
Merits
6 The stock inventory section at Ispra consisted of three members of staff, one classified in grade B 1, another, his assistant, in grade B 4, and the third, the applicant, in Category C 1.
TONTODONATI v COMMISSION
When the first two ceased to be employed in the inventory section, the
applicant took sole charge of the section.
7 The applicant contends that, as he has continued to discharge the
responsibilities previously borne by these two officials, he is now head of the
section and should be re-classified in the career-bracket B 2/B 3.
8 Though the administration cannot compel an official to fulfil tasks on a level higher than his grade, the fact that he agrees to fulfil them can be a factor to be borne in mind in connection with promotion, but does not give him the
right to be re-classified.
In any case, according to Article 45 of the Staff Regulations, promotion to a
higher category can only arise from an appointment as a result of
competition.
9 It is clear from explanations supplied by the Commission that it was not only category B posts of the inventory section which were transferred to another department; the corresponding budgetary entries had been transferred as well.
There were, therefore, in the section no posts vacant in category B which
could have been filled by competition.
10 The action is therefore unfounded.
On costs
11 The applicant has failed in his action.
Under Article 69 (2) of the Rules of Procedure, the unsuccessful party must bear the costs.
Nevertheless, under Article 70 of the Rules, costs incurred by the institutions in connection with actions by staff of the Community remain the
responsibility of the Community.
OPINION OF MR MAYRAS — CASE 28/72
On those grounds,
Upon reading the pleadings; Upon reading the report of the Judge-Rapporteur; Upon hearing the oral arguments of the parties;
Upon hearing the opinion of the Advocate-General;
Having regard to the Treaties establishing the European Communities; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of the European Communities, expecially Articles 45 and 91;
Having regard to the Rules of Procedure of the Court of Justice of the
European Communities;
THE COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders each party to bear its own costs.
Pescatore Sørensen Mackenzie Stuart
Delivered in open court in Luxembourg on 12 July 1973.
A. Van Houtte P. Pescatore
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL MAYRAS
DELIVERED ON 30 MAY 1973 1
Mr President, application in which Mr Leandro
Members of the Court, Tontodonati asks you to declare in his favour against the Commission of the
If perseverance proof of you European Communities. were right, would no doubt have to give favourable The applicant is for the second time reception to the submissions in the appealing to the Court in order to obtain
1 — Translated from the French.