C-302/85

3. Accordingly a new temporary contract 'assignment of temporary staff to a post was concluded on 21 December 1983 for carrying a higher grade than that at which the period until 31 December 1985 under they were engaged shall be recorded in an which the applicant was to perform the agreement supplementary to their contract duties of a senior administrative assistant of service', and was classified in Grade B 3, Step 3. However, it is common ground that the applicant was employed in an A 7 post and and on the second paragraph of Article 15 he maintains, moreover, that he had to of the Conditions of Employment which perform the same tasks as under the provides that where a member of the previous contract. temporary staff is assigned to a post corre­ sponding to a higher grade, as provided for 4. In November 1984 the applicant received in the third paragraph of Article 10, his a certificate from his Head of Division grading is to be determined in accordance stating that he had been carrying out audits with Article 46 of the Staff Regulations of the own resources of the Community and (that is to say, in accordance with the rules taken part in audits at the Commission in governing promotion).

* Translated from the German.

PRESSLER-HOEFT v COURT OF AUDITORS

8. On 8 October 1985, the applicant brought an action before the Court of 6. The applicant replied on 16 April 1985 Justice, claiming that it should: by submitting what he himself described as a complaint to the President of the Court of Auditors. On the basis of a document (i) Annul the decision of the appointing (entitled 'Orientations concernant la gestion authority in so far as it states that the du personnel' [guidelines for personnel request of 14 January 1985 was time- management], which dealt with classifi- barred; - cation in grade and step) of which he had become aware only shortly beforehand, namely in January 1985, he claimed that (ii) Declare that that request safeguarded according to that document, the duties the applicant's right, already re- assigned to him were those of an 'auditeur/ cognized by the Court of Auditors, to administrateur' in career bracket A 7/A 6. the conclusion of a supplementary Since his assignment to Grade B 3, a agreement within the meaning of the decision under Articles 10 and 15 of the Conditions of Employment of Other Conditions of Employment must have been Servants; adopted and from that point on he should have been classified in accordance with Article 46 of the Staff Regulations. He (iii) Therefore, order the Court of Auditors argued that on the other hand the Court of to comply with the provisions ap- Auditors was not entitled to rely on the plicable to members of the temporary expiry of the time-limit, since it was guilty staff; of a continuing failure to act.

iv) Alternatively, in exercise of the Court's unlimited jurisdiction, declare that the Court of Auditors is guilty of malad- 7. The President of the Court of Auditors ministration which it must repair by adopted a further decision on 18 July 1985 paying damages corresponding to the which revoked and replaced that of 7 difference in salary acknowledged by February 1985. In it, as in the decision of 7 the Court of Auditors, namely the February 1985, it was recognized that the difference between B 3, Step 3, and

II — Analysis 14. It is not possible to counter that by saying, as the applicant has done, that in 11. My views on this case are as follows: reality, the claim is for the payment of arrears, which the Court may award in the 12. (i) It is clear from the pleadings that exercise of its unlimited jurisdiction and for the applicant, who is of the opinion that an that reason, the time-limits do not apply. It agreement supplementary to his contract of may also not be argued that the Staff Regu­ service of 21 December 1983 should, in lations contain no time-limit for claims for accordance with the second paragraph payment of salary and that, since Article 85 of Article 10 of the Conditions of thereof provides for a permanent right to Employment, have been concluded with recover sums unduly paid, officials and effect from 1 January 1984, is seeking a members of the temporary staff have a retroactive change in the legal position. In corresponding right in regard to claims for fact, on the basis of the duties performed by payment of arrears. From that point of view him, he wants the contract to be altered the system of rules which may be deduced from the very beginning. from the Staff Regulations is perfectly clear and, in the interests of legal stability and legal certainty, can only be endorsed. It is 13. Since under Article 46 of the possible to set aside or alter ab initio the Conditions of Employment, Title VII of the legal effect of an act of an authority which Staff Regulations, concerning appeals, is to apply by analogy (including the time-limits 1 — Judgment of 15 May 1985 in Case 127/84 Esly v laid down in Articles 90 and 91), it is not Commission [1985] ECR 1437. surprising that the Court of Auditors 2 — Judgment of 7 May 1986 ¡n Case 191/84 Barcella & Others v Commission [1986] ECR 1541. expressed the view that a modification or 3 — Judgment of 26 September 1985 in Case 231/84 Valentini v supplementary agreement to the contract Commission [1985] ECR 3027. concluded with the applicant with retro­ 4 — Judgment of 10 July 1986 in Case 153/85 De Fraye v active effect to the time at which it came Economic and Social Committee [1986] ECR 2427.

adversely affects an official only if it is document sent to him by the Staff contested in good time but not at any point Committee in January 1985 entitled in the future chosen by the official (there is Orientations concernant la gestion du no need to consider here whether in a case personnel' (the definition contained in the in which a relationship involves debt arising third paragraph of section II of part B of over a long period, it is possible to seek to that document implied that the applicant change the future effects of that relationship was performing duties corresponding to an at any time since in this case, the Court of A 7 post). Furthermore, he refers to the fact Auditors has actually made such an that the decision of 7 February 1985, in alteration). which his request was rejected, was revoked and replaced by the decision of 18 July 1985, which recognized that his claim was 15. (ii) It is also clear from the case-law well founded. that where new facts arise, it is certainly possible, even after the expiry of the said time-limits, for an act adversely affecting an 17. There can also be no doubt that if the official to be reconsidered provided that the abovementioned circumstances together, or request under Article 90 of the Staff Regu any one of them, constitute new facts within lations was submitted within the appropriate the meaning of the Court's case-law, the period of time after the discovery of the action before the Court was brought within relevant new facts (see the judgments in the prescribed time-limit. Cases 191/84, 231/84 and 153/85).

7 judgments in Cases 28/64, 59/81, 6190/82 whether there actually are new facts in the and 231/84. applicant's case which made it possible to raise in January 1985 the problem of his correct classification. 16. The applicant therefore wishes essen tially to argue that such a situation exists in his case. He relies in support of that 20. (a) In my opinion, that question should argument on the certificate drawn up by his be answered in the negative in so far as the superior in November 1984, the memor decision of 18 July 1985 on the applicant's andum from a Member of the Court of complaint is concerned. It can undoubtedly

For 6 — Judgment of 6 October 1982 in Case 9/81 Calvin E Willums v Court of Auditors [1982] ECR 3301. that reason, I find it wholly incom 7 — Judgment of 1 December 1983 in Case 190/82 Blomefield v prehensible that the representative of the Commission [1983] ECR 3981. Court of Auditors contested that prop-

osition at the hearing. Apparently, however, speaks of having the feeling that his classifi- that decision was not the factor which cation was incorrect. It is also true that in caused the applicant to submit his request. the said document, it is not expressly stated The decision was in fact a reaction to the that the applicant is performing the duties of applicant's request and for that reason, it an official in Grade A 7. It should however can hardly be regarded as a new fact be ñoted that it does not appear to be justifying that request. reasonable to bring formal proceedings merely on the basis of a subjective impression which may in fact be unfounded. 21. (b) On the basis of the oral argument It is possible that because the distinctions presented by the Court of Auditors, it must between duties are unclear, his classification be doubted whether the document entitled under the first contraa of service was Orientations concernant la gestion du incorrect.

. . ') and it is also inter- applicant's duties were described in one of esting to note that the Court of Auditors them ('measures of control of own resources admitted at the hearing that that document to be carried out by him', participation in could have given rise to misunderstandings numerous inspection visits to the on the part of the staff concerning gradings. Commission); moreover, the expressly However, the decisive factor is that mentioned circumstance that the applicant emphatic assurances have been given that was occupying an A 7 post is certainly a the document, in which the ideas of the strong indication that he was carrying out President of the Court of Auditors were set corresponding duties (as was later clearly out, was never adopted by the Court of recognized in the decision of 18 July 1985).

time. 23. It must certainly be assumed that the applicant, who states that he has performed the same duties as under his first contract of 26. (iii) That means that the objection of service, must have had the impression from inadmissibility raised by the Court of the beginning that he had been appointed to Auditors is unjustified and the application too low a grade. In his application, he must be regarded as admissible.