JUDGMENT OF 13. 7. 1961 — JOINED CASES 22 AND 23/60 ELZ v HIGH AUTHORITY

In Joined Cases 22 and 23/60

THE COURT (Second Chamber) composed of: Ch. L. Hammes, President, J. Rueff (Rapporteur) and R. Rossi, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts of the action may be summarized as follows:

On 9 April 1954 the applicant was appointed for three months on a temporary basis as a ‘comptable analyste’ (book-keeper engaged in statistical work) with the High Authority. This posting was subsequently prolonged on two occasions.

When the Staff Regulations of Officials of the Community came into force a letter from the President of the High Authority dated 9 July 1956 offered the applicant admission to the Staff Regulations as an established official in the third step of Grade 9 in Category B, with effect from 1 July 1956. By letter of 2 August 1956 the applicant informed the President of the High Authority that his clasification in Grade 9 did not correspond to the post for which he had been engaged and requested to be regraded on the basis of a fresh examination of his position. However, on 25 September 1956, he accepted the offer made by the President of the High Authority, while continuing to press his claim. In addition, on 5 October 1956, he signed a statement in which he accepted the offer contained in the letter from the President of the High Authority of 9 July 1956. He sought, however, to delete therefrom the word ‘unconditionally’.

By letter of 5 May 1959 to the President of the High Authority the applicant repeated his request to be regraded in a higher grade. As he received no reply to this letter he lodged an application before the Court of Justice of the European Communities on 15 July 1959.

By judgment given on 4 April 1960 the Court (Second Chamber) declared the application inadmissible in that it was out of time.

By notice dated 15 June 1960 members of staff were informed that the post of Principal Administrative Assistant, corresponding to career bracklet 7-6 in Category B at the Directorate for Withdrawals, Budget and Internal Control at the Directorate-General for Administration and Finance, was vacant. Candidates eligible for appointment to this post by means of transfer or promotion under Article 28 (2), 1 and 2 of the Staff Regulations, that is, who were in Grades 7 or 6 or had been in Grade 8 since 1 July 1958, were given until 23 June in which to submit their applications.

The applicant, who was classified in Grade 9, was unable to submit an application.

A staff note of 19 July 1960 published new detailed lists of posts which came into force on 1 July. Officials classified either in one of the grades in the career bracket corresponding to a vacant post or in the grade immediately below the lowest grade in that career bracket were invited in accordance with Article 28 of the Staff Regulations to submit applications to the Directorate for Personnel before 10 August 1960 for assignment to the vacant posts by transfer or promotion.

On 2 August 1960 the Director-General for Administration and Finance informed the applicant that his name appeared on the promotion list for promotion from Grade 9 to Grade 8 with effect from 1 January 1961. On 9 August 1960 the applicant sent the following registered letter to the Director-General for Administration and Finance:

‘I refer to the publication of the new detailed list of posts and to the Staff Note of 19 July 1960 (Doc. No. 4734-60 f). I wish to apply for Vacant Post No. 215, that of Principal Administrative Assistant in the Accounts Department, which corresponds to Grades 7 and 6 in Category B and which I have occupied temporarily for some years. Until now I have not received the differential allowance provided for in Article 26 of the Staff Regulations. According to this article a temporary posting can only last for one year. The post of Principal Administrative Assistant has already been declared vacant by Staff Notice No. 3 of 15 June 1960, with a description of the duties to be performed which correspond exactly to those which I have performed for some years. I have concluded from this that I am entitled to the differential allowance for this period. I was unable to apply for this post since, in order to be eligible under the provisions of Article 28 (2), 1, I should have been in Grade 8 since, at the latest, 1 July 1958. From the point of view of Article 28 of the Staff Regulations which deals with appointments to posts, my position in the service is irregular in that the administration has so far failed to make the annual report to which each servant is entitled under Article 37 of the Staff Regulations. Article 3 of Annex IV of the Staff Regulations expressly states that the comparative merits of those servants who are eligible for promotion shall be taken into account, together with their annual reports. The failure to make the annual report provided for in Article 37 of the Staff Regulations is bound to affect adversely those officials who have been in the service of the High Authority since 1 July 1956 and could have been eligible for promotion in July 1958, which would then have enabled them to apply for Vacant Post No 215 by way of promotion under Article 28 of the Staff Regulations. I am sorry to have had to draw your attention to these irregularities which are damaging to my career and I am sure that you will readily acknowledge that my complaints are justified’.

As he received no reply to this letter, the applicant lodged the present applications on 8 November 1960.

On 14 November 1960 Notice of Competition HA/141/B was published in the Official Journal of the European Communities concerning the recruitment of a Principal Administrative Assistant in the General Accounts Branch of the Directorate for Withdrawals, Budget and Internal Control at the Directorate-General for Administration and Finance.

Applications had to reach the High Authority by 14 December 1960 at the latest (although the time-limit for the submission of documentary evidence relating to qualifications or diplomas which were necessary or desirable was fixed at 3 January 1961).

On 28 November 1960, in a letter addressed to the President of the High Authority, the applicant requested that the holding of this competition be postponed until the Court of Justice had given judgment on his applications, ‘the outcome of which is likely to influence the conditions under which the vacant post might be filled’.

By letter of 8 December 1960 the President of the High Authority refused to agree to this request and informed the applicant that his position in the service, and in particular his classification, did not prevent him submitting an application.

The applicant did not reply to this letter.

Since 1 January 1961 the applicant has received a salary corresponding to Grade 8.

II — Conclusions of the parties

The applicant claims that the Court should:

a) In Case 22/60, annul the implied decision of refusal resulting from the failure of the Director-General for Administration and Finance of the High Authority to answer his request of 9 August 1960 for his personal file to be completed by the addition of the annual report provided for in Article 37 of the Staff Regulations and for the rights and privileges attaching to a temporary posting under the terms of Article 26 of the Staff Regulations to be acknowledged;

b) In Case 23/60, order the High Authority to pay the differential allowance corresponding to the difference between Grade 7 and Grade 9 for the whole of the period during which he has performed temporarily the duties of Principal Administrative Assistant to the Head of the General Accounts Department of the Directorate-General for Administration and Finance, as well as the interest payable on the principal sum which is not yet settled;

c) In both cases, order the High Authority to bear all the costs.

The defendant contends that the Court should dismiss both applications as inadmissible and, in the alternative, as unfounded with all the legal consequences, in particular as regards payment of the costs.

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

A — Case 22/60

Admissibility

The applicant maintains that the development of his career is dependant upon the es tablishment of the exact nature of his duties and the existence of a proper file containing the annual report made by his superiors. He therefore has an interest in bringing the proceedings.

In addition, the applicant maintains that the failure of the High Authority to reply within two months to his registered letter of 9 August 1960 constitutes an implied decision of refusal which adversely affects him.

The defendant puts forward the following five arguments:

The applicant has no direct and definite interest. He is seeking promotion to the post of Principal Administrative Assistant for which he is not eligible under the Staff Regulations. Secondly, he refuses to take part in the competition, which makes it impossible for the appointing authority lawfully to take his application into consideration for the post in question.

The applicant cannot show that he has suffered any special damage. First, the absence of an annual report has no causal relationship with the unfavourable career development of which he claims he is a victim, since the situation complained of applies to all the servants of the High Authority and there is no evidence that his annual report would have been favourable. Furthermore, the applicant was in fact put on the promotion list for Grade 8 on 27 July 1960 and his promotion became effective on 1 January 1961 (he had already been informed of it on 2 August 1960). Finally, the applicant should have complained of the absence of the annual report for 1957 in 1958, so as to enable the High Authority to take the necessary action in his case.

It an implied decision of refusal exists the scope of the proceedings before the court must be determined by the content of the formal notice. In his letter dated 9 August 1960 the applicant applies for the vacant post in question and, so as to justify the consideration of his application, which did not fulfil the requirements laid down in Article 28 of the Staff Regulations, he considers it necessary to draw attention to the irregularities which are adversely affecting his career in that they prevented him from applying for the vacant post by way of promotion. On the other hand, the application seeks the annulment of the implied refusal by the High Authority of a complaint which seeks, first, the completion of his personal file by the addition of the annual report and, secondly, an acknowledgement that the applicant was entitled to the rights attaching to a temporary posting. The submissions contained in the preliminary request have become the subject-matter of the action for failure to act and, as a result, the subject-matter of the application is not the same as that of the request: it is impossible to bring an action. On this point the defendant refers to the judgment of 22 March 1961 in Joined Cases 42 and 49/59, Société Nouvelle des Usines de Pontlieue-Aciéries du Temple (SNUPAT) v High Authority (Rec. 1961, Vol. VII, p. 105 et seq.).

The letter of 9 August 1960 cannot be regarded as formal notice, served in due form, since it had to be interpreted by the administration within the context of the staff note of 19 July 1960, to which it expressly refers. The importance and complexity of the measures referred to in this note necessarily prevented the rapid adoption of individual decisions brought about by the reorganization of the services of the High Authority. Thus, there can be no question of any failure to act.

The application is in fact intended to revive an earlier dispute concerning the classification of the applicant; that application had been dismissed as out of time by a judgment of the Court of Justice given between the same parties on 4 April 1960. The force of res judicata prevents that question being reopened.

The applicant replies that:

The letter of 9 August 1960 constitutes on its part an appeal through official channels and sets out his eligibility to occupy the post of Principal Administrative Assistant which had been declared vacant and to receive the differential allowance provided for by Article 26 of the Staff Regulations in respect of the preceding period. The absence of any annual report is expressly pointed out in this letter. The application therefore contains no new arguments as compared to the contents of the letter of 9 August 1960. It is therefore possible to bring an action.

However complex the measures involved in the reorganization of the services of the High Authority the application had to be lodged without delay on penalty of being time-barred. The precedent set by Case 34/59 could only encourage the applicant to take immediate action.

Article 28 of the Staff Regulations establishes unequivocally the principle that internal recruitment takes priority over competitions. The applicant, who has occupied the vacant post for some years as a temporary posting, is seeking direct promotion on the basis of his ability and the nature of the duties which he was actually performing. Had the applicant followed the advice of the President of the High Authority and submitted his application, this would have been interpreted as a waiver of the right to assert the claim to the priority given to internal recruitment by Article 28.

The High Authority puts forward an argument based on its own failure to act. It stresses that the absence of an annual report is common to all the staff and observes that any annual report would not necessarily have been favourable to the applicant. In fact, by deciding on 27 July 1960 to promote the applicant the administration is acknowledging his ability which, it may reasonably be thought, could have justified the promotion he is seeking to the post of Principal Administrative Assistant.

In its rejoinder, the defendant adds further details to its arguments and emphasizes that the argument which the applicant bases on Article 28 of the Staff Regulations of Officials does not apply in this instance, since candidates for appointment by way of promotion must show that they have the minimum seniority provided for in Article 39 (1) of the Staff Regulations and Article 2 of Annex IV. Moreover, the applicant was promoted within the context of his present duties. It is acknowledged that the work done by Mr Elz at his present level is good but his promotion does not imply recognition of an ability to hold a post at a higher level.

Substance

In his application the applicant maintains that, as a result of the failure to act on the part of the administration of the High Authority, it is impossible for him to be promoted to Principal Administrative Assistant in the Accounts Department. In his reply he restates his right to be appointed to this post by way of promotion, without the need to undergo the competition procedure.

He maintains that, according to the description in the vacancy notice, the post in question corresponds exactly to that which he has held for some years as a temporary posting which has been improperly extended for more than one year without his receiving the differential allowance provided for under Article 26 of the Staff Regulations.

He complains that the High Authority violated th provisions of Article 37 of the Staff Regulations of Officials by failing to make the annual report on him which should have been drawn up with regard to every official. He maintains that for this reason he was unable to receive the promotion in July 1958 which would have enabled him, after further promotion, to occupy the vacant post.

The defendant replies that the post of Principal Administrative Assistant which forms the subject of Notice of Open Competition No HA/141/B and corresponds to a career bracket comprising Grades 7 and 6 in Category B, is a regraded post of accounting officer to which the duties performed by the applicant do not correspond.

As, therefore, the applicant has never been called upon to occupy a post on a temporary basis at a level which corresponds to a higher grade than his present grade, the defendant maintains that it was under no obligation to award him the differential allowance provided for in Article 26 of the Staff Regulations and, a fortiori to regularize, under paragraph 3 of that article, a temporary posting lasting more than one year.

As regards the absence of an annual report in the applicant's personal file the High Authority observes that such a report could not have compelled the administration to as sess a temporary posting nor, in particular, to promote him to the corresponding level.

Finally, it points out that the situation of which the applicant complains is the same for all servants of the High Authority and that the delay in drawing up and applying a system of reports which complies with Article 37 of the Staff Regulations is the result of concern for good administration.

B — Case 23/60

Admissibility

The applicant refers to his arguments concerning the admissibility of his application for annulment, Application No 22/60.

The defendant claims that the application cannot be admitted in so far as it attempts to revive the dispute concerning the applicant's classification, which was held to be time-barred in the judgment of the Court of Justice of 4 April 1960.

Substance

The applicant states that, although he is classified in Grade 9, he has for several years performed duties corresponding to those carried out by servants in Grades 6 and 7.

He considers this to be shown by the description of the vacant post contained in the Staff Notice of 15 June 1960 which corresponds exactly to the duties he has performed over a long period. He maintains that, as he is a book-keepr engaged in statistical work and not merely an assistant accounting officer, his duties are those of an assistant to the head of branch and, therefore, of a principal administrative assistant responsible for reviewing and coordinating the accounting. Thus, he in fact occupied on a temporary basis a post in Grade 7 and therefore should have received the differential allowance provided for in Article 26 of the Staff Regulations from the third month of that temporary posting.

The applicant maintains that the objection cannot be made that he was not officially instructed to hold the temporary posting by a proper administrative decision. It is sufficient to consider the facts to acknowledge, on the basis of the provision in the Staff Regulations which is intended to ensure that servants receive the remuneration which is in accordance with the responsibilities and tasks conferred upon them, that he has in fact held a temporary posting.

He therefore considers himself justified in requesting the High Authority to pay him a differential allowance corresponding to the difference in salary between Grade 9 and Grade 7 for the whold period during which he performed, on a temporary basis, the duties of principal administrative assistant to the Head of the General Accounts Department of the Directorate-General for Administration and Finance of the High Authority. In an appendix to Application No 23/60 the applicant maintains that he has carried out ad interim the duties involved in the post in question since 2 December 1957.

The defendant replies, first, that there can be no question of the post being occupied ad interim since it was not vacant; it was in fact held by another official until 10 February 1960.

Secondly, it rejects the applicant's assertion that Article 26 of the Staff Regulations requires no formal decision to entitle the officials concerned to the differential allowance.

The defendant maintains that the applicant has never had the responsibilities which he claims to have had. There can therefore be no question of paying any differential allowance.

IV — Procedure

After the joinder of the cases the procedure followed the normal course.

Grounds of judgment

I — The application for annulment in Case 22/60

Admis sib ility

The application seeks the annulment of an implied decision by which the High Authority, it is claimed, violated the rules of law stemming from the Staff Regulations of Officials of the European Coal and Steel Community and refused to uphold certain claims made by the applicant.

It is therefore appropriate to consider, first, whether the conditions for an action for failure to act are fulfilled in this instance.

In this respect the defendant raises a preliminary objection of inadmissibility on the ground that it has not been served formal notice to take the decisions the absence of which is criticized by the applicant and that, therefore, there is no question of a failure to act.

By letter dated 9 August 1960 addressed to the Director-General for Administration and Finance of the High Authority the applicant submitted certain complaints to the defendant concerning his position in the service.

This letter in fact constitutes an appeal through official channels in which the applicant asks the defendant to review his position.

Moreover, the applicant himself described it as such in his reply.

Although it is for the court to classify legal measures according to their nature rather than according to their form and although, in the stage of an action for failure to act, there is no need to show excessive severity towards an official as regards compliance with the necessary formalities, the fact remains that the letter of 9 August 1960 does not contain any formal request or indicate an intention to pursue the matter and it does not show sufficiently clearly that it constitutes the beginning of the period for lodging an application.

It cannot therefore be regarded as formal notice intended to encourage the defendant to take a preliminary express or implied decision which may be challenged in proceedings before the Court.

If, by this letter, the applicant had intended to close the administrative stage of an action for failure to act he would not have failed to tell the defendant so clearly, as he had done in his earlier application (Case 34/59) in a letter dated 5 May 1959.

Even if the failure of the High Authority to reply to this letter in good time is scarcely in accordance with the diligence required of a conscientious administration it cannot be regarded as an implied decision of refusal which is capable of forming the subject-matter of an action for failure to act.

The application for annulment in Case 22/60 is therefore inadmissible.

II — T he application for compensation in Case 23/60

A — Admissibility

The application seeks an order that the High Authority pay to the applicant the differential allowance corresponding to the difference between Grade 7 and Grade 9 for the whole period during which he performed as a temporary posting the duties of Principal Administrative Assistant to the Head of the General Accounts Department of the Directorate-General for Administration and Finance.

It is First necessary to consider whether this application has not been brought in spite of the force of res judicata of Case 34/59, which concerned the same parties and was settled by the judgment of the Court (Second Chamber) of 4 April 1960.

It appears from reading the conclusions of the applicant that the subject-matter of the application in Case 34/59 is essentially different from that of Case 23/60. The application in Case 34/59 was for the regrading of the applicant while the application in Case 23/60 is for the payment of a differential allowance by way of remuneration for a temporary posting.

The force of res judicata is therefore no bar to the admissibility of this application.

The applicant's interest in bringing proceedings is material and may be assessed in monetary terms.

That interest of the applicant in bringing proceedings must therefore be acknowleged.

The application for compensation in Case 23/60 is therefore admissible.

B — Substance

The applicant maintains that he is entitled to the payment of a differential allowance under Article 26 of the Staff Regulations of the European Coal and Steel Community on the ground that since 2 December 1957 he has performed ad interim the duties involved in the post of Principal Administrative Assistant in the Accounts Department.

The duties of principal administrative assistant are described as follows in the Staff Notice of 15 June 1960:

‘Assisting the Head of the General Accounts Department in the performance of all the work of the department. In particular, he will be responsible for: Ensuring the coordination of the work of accounting and verifying that it is carried out properly and within the required time-limits; Checking that expenditure has been charged to the correct accounts and items of the budget; Analysing and preparing written justification of account balances.’

A memorandum dated 15 September 1958 from the Director of the Directorate for Budget and Internal Control of the High Authority, which appears in the applicant's personal file, shows his duties to be as follows:

‘Ledger posting and checking that items of expenditure shown in statements provided each month by the seven offices at present established outside Luxembourg are posted to the correct accounts; Checking the posting of items of expenditure by the other officials of the branch (work shared with the Head of the Accounts Department); Explanation of account balances, in particular, of current accounts; Preparation of statistics and summary tables; Finally, assistance in drawing up the balance sheet and in preparing the necessary explanatory documents.’

Even if they could possibly have justified regrading, a question which the Court is not required to settle within the context of this application, the duties of the applicant so defined do not correspond to those of a Principal Administrative Assistant.

In particular, it does not appear that the applicant was responsible for assisting the head of department in the performance of all the tasks of the department.

There is also no evidence that he was responsible for ensuring the proper coordination of all the work of accounting and of verifying that it was carried out properly and within the required time-limit.

The applicant has not shown sufficiently in law or offered to bring evidence that he in fact performed the duties of principal administrative

In these circumstances he cannot claim that he had occupied the post in question as a temporary posting.

The application is therefore unfounded.

Ill — Costs

The applicant has been unsuccessful in his two applications.

He must therefore be ordered to pay the costs.

Under the terms of Article 70 of the Rules of Procedure of the Court, the High Authority shall bear the costs which it has incurred.

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 Protocol on the Statute of Justice of the European Coal and Steel Community; Having regard to the Staff Regulations of Officials of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (Second Chamber) hereby:

1 Dismisses Applications 22/60 and 23/60;

2 Orders the applicant to pay the costs; the costs incurred by the defendant shall be borne by that institution.