C-173/80

JUDGMENT OF 18. 6. 1981 — CASE 173/80

In Case 173/80

VOLKER BLASIG, an official of the Commission of the European Communities, residing in Moutfort, Luxembourg, represented by Günther Maximini of the Landgericht Trier, with an address for service in Luxembourg at the latter's Chambers, 96 Rue du Kiem, Neudorf,

applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Jörn Pipkorn, a member of its Legal Department, acting as Agent, and by Etienne Van Werveke, of the Brussels Bar, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg,

defendant,

JUDGMENT

Facts and Issues

JUDGMENT OF 18. 6. 1981 — CASE 173/80

tration in Luxembourg sent the applicant had failed "to adopt a measure pre- a letter worded as follows : scribed by the Staff Regulations", namely to place the applicant in Grade B 1. "Following our letters of 19 June and 26 July 1974 I have the pleasure of being able to confirm that as a result of your By a letter dated 24 April 1980, sent to taking part in Competition No COM/ the applicant on 30 April 1980, the B/106 and the medical examination appropriate member of the Commission, which you underwent we are able to Mr Tugendhat, informed the applicant offer you a post as Senior Administrative that the Commission had dismissed his Assistant (Programmer) with the Com- complaint on the ground that his grading mission of the European Communities in B 3, Step 1, had become unassailable (Directorate-General for Personnel and after the expiry of the period for Administration, Computer Operations bringing an action following rejection of Division) in Luxembourg. the complaint made in 1974 against that grading and that in any case the grading was in fact justified having regard to his You will be employed as a probationary taking part in a competition specifically official in Grade B 3, Step 1." organized to fill vacancies in Career Bracket B 2/B 3. By a telex message dated 27 September 1974 the applicant confirmed that he would take up his duties on 1 October By an application received at the Court 1974. By a decision of the appointing on 29 July 1980 the applicant brought authority of 18 October 1974 the the present action based on "an incorrect applicant was appointed as a Senior grading in a post in Career Bracket Administrative Assistant with effect from B 2/B 3." 1 October 1974 in Grade B 3, Step 1. Upon hearing the report of the Judge- On 6 December 1974 the applicant Rapporteur and the views of the lodged a complaint against that decision Advocate General the Court (First pursuant to Article 90 (2) of the Staff Chamber) decided to open the oral Regulations, claiming that he ought to procedure without any preparatory be given the Grade B 2, Step 1, on the inquiry. ground that his experience justified that grade.

2. Order the defendant to pay the with his appointment in accordance with applicant the difference between the the relevant provisions. salary actually paid and that which he would have received if he had As a result the object of the complaint of been properly graded, together with 20 December 1979 was to invite the interest at 8 % ; defendant to take a decision which it had refrained from taking in spite of the 3. Order the defendant to pay the express provisions enjoining it so to do. costs". The defendant maintains that the application is inadmissible because it was The defendant contends that the Court lodged after the expiry of the period should: prescribed in Article 91 (3) of the Staff Regulations. The measure which is " 1 . Dismiss the action as inadmissible or alleged to have adversely affected the alternatively as unfounded; applicant was the grading in B 3 pursuant to the decision of the 2. Order the applicant to pay the appointing authority of 18 October 1974. costs". Although he had lodged a complaint against that decision on 6 December Ill — Submissions and argu- 1974 the applicant had allowed the m e n t s of t h e p a r t i e s period for bringing an action after the rejection of his complaint to expire. The subsequent decisions of the appointing Admissibility of the action authority merely confirmed the original decision which is alleged to have In h i s application the applicant observes adversely affected the applicant. that the object of his complaint of 6 September 1974 was to secure a higher The description of duties published in grading within the same career bracket in 1973 in the Staff Courier had been reliance mainly on his experience in available to all interested officials since computer technology. the date of its publication. The defendant stresses that the description of the duties At the time the applicant was unaware attached to posts in Category B as that the defendant's manner of grading contained in the 1979 Guide to Staff was irregular. Moreover he could not Reports is identical to that contained in have known it because it was only on 9 the 1973 Guide to Staff Reports. October 1979 that he received a copy of the new "Guide to Staff Reports" and In the defendant's view the inadmissi- Annex I A to the Staff Regulations bility of the first head of the application containing the description of his duties renders the second inadmissible since and the grade which he ought to have. that also has its origin in the allegedly incorrect grading. That claim is therefore The description of duties had already subject to the same rules on the been published in 1973 but at that time limitation of actions as the first. the applicant had not yet taken up employment with the Commission. He If it is a claim for damages it is time- considers that it was not for him to barred pursuant to Article 43 of the obtain those publications but that he was Statute of the Court of Justice of the entitled to expect the defendant to deal EEC.

The applicant stresses, moreover, that when the first periodic report was made Substance on him he was never given a copy of the 1973 Guide to Staff Reports. Further, there was a general ignorance of that The applicant alleges that the description guide. of duties in Notice of Competition No COM/B/106 shows that it was intended to recruit experienced programmers The defendant observes that when taking ("Executive official who, on the basis of up his employment the applicant received general instructions, carries out difficult a codified version of the Staff Regu- and complex tasks, in particular the lations. Moreover, the 1975 supplement preparation and refinement of pro- to the Guide to Staff Reports issued in grammes for third-generation com- November 1973 was sent to the applicant puters."). Moreover, in the offer of and to all other officials in active employment which it made on 6 employment. September 1974 the Commission also used the word "programmer." It follows that the defendant advertised a vacancy The only question which arises is for a programmer in Notice of whether the discovery of criteria Competition No COM/B/106. governing the applicant's recruitment constitutes a new factor capable of causing time to start to run afresh. In By virtue of Annex IA to the Staff Regu- Case 102/75 Petersen v Commission lations the duties of a programmer are [1976] ECR 1777 at p. 1792, the Court described as follows: held that the discovery of internal criteria on grading does not constitute a new fact having that legal effect. The "— Responsible for working out pro- defendant considers that that finding grammes for electronic computers." applies a fortiori in the present case. That post is in Grade B 1. The description of duties corresponds to that The main purpose of the appointing in Notice of Competition No COM/B/ authority's reply of 24 April 1980 to the 106. complaint of 20 December 1979 was to show the applicant the unassailable nature of the decision of 18 October In placing the applicant in Grade B 3 the 1974 on his recruitment. It should defendant disregarded Article 31 (1) and therefore be regarded as confirmation of Article 7 of the Staff Regulations. The that decision and is not capable of defendant avoided placing the applicant

It explains that there is none the less a difference between the description of the The defendant, in the applicant's view, duties of officials in Career Bracket overlooks the fact that Competition N o B 2/B 3 who are paid out of the C O M / B / 1 0 6 was not intended to recruit administrative appropriations (Annex 1 A assistants with general duties but to the Staff Regulations) and the executive officials who, on the basis of description of the duties of officials in general instructions, would carry out Grades B 3 to B 5 paid out of the difficult and complex tasks, in particular research funds (Annex 1 B to the Staff the preparation and refinement of Regulations). The latter are described as programmes for third-generation com- "programmers" and officials in Grades puters. That description corresponds to B 1 and B 2 of that category are called that of the duties appertaining to the "chief programmers". post of "programmer", which is a post in Career Bracket B 1.

2 The applicant commenced his duties in 1974 after taking part in an open competition (Competition No COM/B/106) for the post of Senior Administrative Assistant in Grades 3 and 2 of Category B. In the competition notice the duties were described as those of an: "Executive official who, on the basis of general instructions, carries out difficult and complex tasks, in particular the preparation and refinement of programmes for third- generation computers." As a result of the competition the Commission offered the applicant "the post of Senior Administrative Assistant (Programmer)" in Directorate-General IX "as a probationary official in Grade B 3". The applicant accepted the offer and confirmed that he would take up his employment on 1 October 1974. The decision appointing the applicant, which was adopted on 18 October 1974, placed him as a Senior Administrative Assistant in the first step of Grade B 3.

3 On 6 December 1974 the applicant lodged a complaint against that decision alleging that in view of his experience with third-generation computers he

BLASIG v COMMISSION

ought to be placed in the first step of Grade B 2 or at least in the third step of Grade B 3. That complaint was rejected by a decision of the Commission of 2 June 1975 which was founded on the principle that the appointing authority appoints every successful applicant as a probationary official in the basic grade of the basic career bracket of his category.

4 At the end of his probationary period the applicant became an established official in his post with effect from 1 July 1975.

JUDGMENT OF 18. 6. 1981 — CASE 173/80

Staff Regulations; it included in the descriptive table of basic posts a reference to "Programmer" in the column relating to Grade B 1 and a reference to "Assistant Programmer" in the column relating to Grades B 2 and B 3.

8 It is relevant to observe first of all that the measure adversely affecting the applicant which is the subject of the action is the appointing authority's decision of 18 October 1974 placing him in Grade B 3. Since the Commission rejected a complaint which was lodged against that decision within the requisite period it was not required, unless important new facts arose, to consider a fresh complaint against the same decision.

9 The first submission must therefore be rejected and it is necessary to consider whether the circumstances cited in the second submission may be regarded as a new act capable of starting the period of limitation to run afresh.

10 The Commission observes in that regard that the description of duties relating to posts in Category B given in the 1979 Guide to Staff Reports is identical to that contained in the 1973 Guide to Staff Reports. The latter was published in the 1973 Staff Courier (No 272 of 4 September 1973) and was available to all interested officials as from the date of its publication.

1 1 The applicant does not deny that the description of the basic posts had already been published in 1973. He points out however that at that time he had not yet taken up employment with the Commission. In his view he was not bound to check the content of publications, issued prior to his taking up employment, which might concern him. It is for the appointing authority to supply officials with all publications relative to the correspondence between their duties and their grade; the applicant however was not notified of the Guide to Staff Reports until he received a note from the Commission dated 9 October 1979.

16 According to Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 thereof the costs incurred by the institutions in actions by servants of the Communities are to be borne by the institutions.

OPINION OF MR REISCHL — CASE 173/80

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application as inadmissible;

"Executive official who, on the basis of In the autumn of 1973 the Commission announced in the Official Journal of the general instructions, carries out difficult European Communities (C 71, p. 4, of 8 and complex tasks, in particular the September 1973) that it was organizing preparation and refinement of pro- an open competition on the basis of grammes for third-generation com- qualifications and tests to draw up a puters." reserve list of Senior Administrative Assistants in Grades 3 and 2 of Category Candidates were to be not less than 28 B (Notice of Competition N o C O M / B / and not more than 40 years of age. The 106). requisite qualifications and experience

1 — Translated from the German.