C-54/86

Mr President, A 3. His request was rejected on 14 June Members of the Court, 1983 and a complaint against that decision was rejected by decision of 16 January 1984, which categorically denied that the applicant had been entrusted with duties attaching to a post in Grade A 3. The 1. The hearing in this case, which took arguments put forward by the applicant place on 19 March, concerned solely the were refuted in detail. The decision adopted question whether the action brought by Mr by the competent Member of the Grumbach against the Commission for Commission on 16 January 1984 dealt with failure to adopt a decision under Article 7 the applicant's assertion concerning his (2) of the Staff Regulations of Officials is predecessor's position, his own position as a admissible. My opinion here is restricted to member of the Commission's delegation in that question. Geneva, his duties and his diplomatic rank and concluded that the Commission did not share the plaintiff's opinion that his duties indisputably corresponded to a post in A — Facts Grade A 3. The decision also stated that according to the Court's case-law, even if it was accepted that Mr Grumbach had performed duties pertaining to a higher grade he had no right to be classified in that 2. It is sufficient at this stage to recall that .grade. The plaintiff did not contest that from 2 February 1981 to 31 May 1983 the decision. applicant, who was at that time an official in Grade A 4, was a member of the Commission's delegation in Geneva responsible for questions dealt with by Directorate-General VIII (to which the applicant belonged). As a result of a 4. A year later, on 28 February 1985, the judgment of the Court delivered on 9 plaintiff requested that a decision should be December 1982 in an action brought by his adopted recognizing that from 2 February predecessor (Case 191/81),1 Mr Grumbach 1981 until 31 May 1983 he had temporarily apparently decided that he had been performed the duties of a post in Grade A 3 entrusted with duties attaching to a post in and granting him the differential allowance Grade A 3. provided for in such a case by Article 7 (2) of the Staff Regulations of Officials. This request was also refused. His complaint of 14 June 1985 was rejected by a decision of 4 December 1985, which expressly stated that 3. He thereupon unsuccessfully requested the object of the complaint and the obser­ the Commission to classify him in Grade vations of the applicant were essentially the same as those in the first complaint and * Translated from the German. therefore the decision of 16 January 1984 1 — Judgment of 9 December 1982 in Case 191/81 Onno Plug could only be confirmed. The competent v Commission of the European Communities [1982] ECR 4229. Member of the Commission expressly stated

that in those circumstances an application to 8. 1. In the first place, as regards the second the Court might be declared inadmissible. point referred to above, I am not certain Nevertheless, on 25 February 1986 the whether one can go so far as to say that applicant brought before the Court of there was a binding decision to the effect Justice the action with which we are now that the applicant had not performed duties concerned. attaching to a post in Grade A 3, with the result that this aspect can no longer be contested in a further procedure concerning Article 7 (2) of the Staff Regulations. It B — Discussion could be said that it is with regard to the objective pursued, or the right relied upon, that the decision is binding; however, the two procedures are clearly not identical 5. In relation to the admissibility of the (since the first concerned a change of classi­ application there are obviously no problems fication and the second concerns exclusively concerning compliance with the prescribed the application of Article 7 (2) of the Staff periods, as regards the actual dates of the Regulations — the award of a differential request, its refusal, the submission of a allowance to an official called upon tempo­ complaint and its express rejection (after rarily to occupy a higher post). four months, but none the less within the period prescribed for an appeal, which started to run from the date of the implied rejection — see Article 91 of the Staff Regu­ lations of Officials). It is unnecessary to set out the details here. 9. It might, however, be thought — precisely because in the decision on the first complaint there was an express finding concerning the duties performed by the applicant, which are also of importance for 6. For purposes of examining the admissi­ the purposes of Article 7 (2) of the Staff bility of the application it is important, Regulations — that there was an implied however, that this case concerns a refusal to decision to the effect that Article 7 (2) was adopt a decision which would benefit the also inapplicable. That would mean that the applicant, that is to say, a claim alleging a applicant ought at once to have brought an positive obligation on the part of the admin­ action before the Court claiming that Article istration. It is also important that in the 7 (2) should be applied. Since the procedure set out above (which sought a appointing authority's position with regard change in classification) it was stated in an to the conditions laid down in Article 7 (2) uncontested decision on a complaint that in was clear from January 1984, it does not Geneva the applicant had not performed seem possible to reopen this issue by means duties attaching to a post in Grade A 3. of a request submitted subsequently and to The decision of 16 January 1984 is quite bring it before the Court in February 1986 clearly based on that finding and not on the after the preliminary procedure has been additional point that even if an official followed for a second time. performs duties higher than his grade he has no right to promotion.

conclusion which is different but leads to decided to take no action. Because the the same result. Netherlands Government had failed to observe that requirement and had not brought the matter before the High Authority until 18 months after the High Authority's position had become clear, the 11. I am thinking of the judgment in Case action was held to be out of time. 2 59 / 70 , in proceedings brought under Article 35 of the ECSC Treaty (which was also, therefore, a claim alleging a positive obligation). I need mention only the following facts: the French Government 12.

13. In this case we must start from the December 1968. The Netherlands Govern proposition that the applicant had reason to ment did not share the view of the High take action in connection with the problem Authority. It therefore in June 1970 raised by him from the date on which the requested the High Authority to adopt a Court gave judgment in Case 191/81, that decision under Article 88 of the ECSC is to say, 9 December 1982. He did so

The action was soon as it became apparent that the dismissed as inadmissible. In the grounds for Commission clearly considered that the its decision the Court had to acknowledge conditions prescribed by that article (the that the Treaty did not prescribe any performance of duties attaching to a post in time-limit for raising the matter with the Grade A 3) were not satisfied. The High Authority under Article 35 of the applicant certainly should not merely have ECSC 'Treaty. However, it inferred from left matters as they were for another year. the general scheme of Articles 33 and 35 of Thus even if it is not considered that he the ECSC Treaty and from the principles of should have brought an action on the basis legal certainty and of continuity of of the decision (of 16 January 1984) on the Community action that the submission of a first complaint, he should at least have request to the High Authority could not be submitted a request to the Commission delayed indefinitely but must take place seeking the application of Article 7 (2) of within a reasonable period— especially once the Staff Regulations within a reasonable it was clear that the Commission had period after 16 January 1984. In my view the request, which was not submitted until 2 — Judgment of 6 July 1971 in Case 59/70 Netherlands v Commission [1971] ECR 639. February 1985 and which then — after a