JUDGMENT OF 24. 2. 1965 — CASE 10/64 JULLIEN v COMMISSION

In Case 10/64

THE COURT (Second Chamber) composed of: A. M. Donner, President (Rapporteur), W. Strauß and R. Monaco, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts

Rene Jullien entered the service of the Commission of the European Economic Community on 1 June 1958 and was appointed to the Directorate of Internal Affairs. By a decision of 12 December 1962 he was established in Grade B 1, Step 4, and was appointed to a post relating to general administration in the division of the Directorate of Internal Affairs responsible for buildings, furniture and conferences. At its 238th meeting on 29 July 1963, the Commission adopted a table of definitions of the duties and powers attaching to each post as laid down in Article 5 of the Staff Regulations. The attention of officials was drawn to this table by EEC Commission Staff Information Bulletin No 54 of 20 October 1963.

As Mr Jullien considered that according to this table the duties actually performed by him since the beginning of his career with the Commission corresponded to career bracket A4/A5 (basic post of Principal Administrator), on 4 December 1963 he submitted a request to the appointing authority under Article 90 of the Staff Regulations, asking to be placed in career bracket A4/A5 with effect from 1 January 1962. Since he did not receive any reply, he made the present application to the Court of Justice on 26 March 1964.

The procedure took place in accordance with the required formalities. At the hearing in open court on 25 January 1965 the Advocate-General delivered his opinion, proposing that the application should be dismissed.

II — Conclusions of the parties

The applicant claims that the Court should :

‘1. Rule that the implied decision rejecting his request of 4 December 1963 is null and void; 2. Rule that his appointment is null and void to the extent that it classified him in Grade B 1, Step 4; 3. Rule that the Commission must classify the applicant in Grade A5, and in such step thereof as is just, with effect from 1 January 1962; 4. Order the Commission to pay to the applicant the sum of one franc in respect of arrears of salary, the applicant reserving the right to amend this amount during the course of the proceedings; 5. Order the Commission to pay to the applicant the sum of one franc by way of compensation for non-material damage, the applicant reserving the right to amend this amount during the course of the proceedings; 6. Order the defendant to pay the costs.’

The defendant in its statement of defence contends that the Court should:

‘— declare that the application is inadmissible in so far as it is directed against Mr Jullien's appointment as an official in Grade B 1; — dismiss the application on all counts as unfounded; — make an order as to costs in accordance with the appropriate rules;’

and in its rejoinder it contends that the Court should:

‘— dismiss the application on all counts as unfounded; — make an order as to costs in accordance with the appropriate rules.’

III — Submissions and arguments of the parties

The applicant asserts that the Commission has refused to classify him in career bracket A4/A5, that is to say, has refused to appoint him, as from 1 January 1962, at least to Grade A5 and to such step thereof as is just, whilst well before the Staff Regulations came into force, and in any event at the moment when, on 12 December 1963, they first applied to him, the applicant had by implication reached at least Grade A5 because he carried out duties corresponding to career bracket A4/A5.

According to the defendant Article 102 (1) of the Staff Regulations only concerns decisions of integration and not decisions concerning the possible reclassification of established officials by applying the principle set out in Article 5 of and Annex I to the Staff Regulations correlating duties to grades.

The applicant, in referring to the case-law of the Court, holds the view that for the purposes of his application it is sufficient for him to show that the duties which he has in fact carried out correspond to an A4/A5 career as read from Annex I to the Staff Regulations and from the definition of duties adopted on 29 July 1963. After outlining the development of the organization of the departments concerned — from which it appears that from the beginning he has been the head of the section responsible for the administrative management of all the buildings occupied by the EEC at Brussels — the applicant also puts forward the view that these tasks are of vital importance to the administration of the Commission.

Starting with the nature of the duties carried out by him, the applicant then considers to which ‘basic post’ they correspond (B 1 or A4/A5). An objective analysis leads, according to him, to the conclusion that his duties are referable to career bracket A4/A5, and to no other. According to the applicant, nobody could refute the fact that his duties include planning, advisory or supervisory duties in one sector of activity, corresponding to the said career bracket A4/A5. Furthermore the Commission itself takes the view that the duties which he carried out correspond to career bracket A4/A5, since in the draft budget for 1964 it asked for several additional A5 posts, in particular in order to be able to reclassify the applicant.

The defendant replies that the duties carried out by Mr Jullien are those of a Principal Assistant in Grade B 1. The duties relating to the department for which he is responsible do not appear to be different in kind from those relating to the same departments in the other institutions of the Community and without exception these departments are supervised by officials of Category B. The duties allocated to the applicant in the post which he holds have never been altered and therefore the nature of the post has not been changed. The defendant states that the level at which a post is placed in the order of basic posts set out in Annex I to the Staff Regulations is decided solely on the basis of the nature of the tasks entailed in that post. An analysis of the duties carried out by the applicant shows that his post corresponds to the basic post of an Administrative Assistant, not to that of a Principal Administrator. Contrary to what the applicant alleges, the duties which he performs do not include planning duties. His tasks are limited to a preparatory stage, the real responsibility for negotiation with public authorities and with private persons being in no way his concern.

Finally, it is true that the Commission asked for additional Grade A5 posts to be included in the 1964 budget and that, in the event of this request being met, it was the intention of the Commission to allocate some of these posts to the Buildings, Furniture and Fittings Division. However, this fact only conconcerns the relationship between the Commission and the budgetary authority and shows no more than the Commission's motives in asking for additional posts. The applicant cannot draw any conclusions from this in favour of his case. Nothing emerges from the request, or the reasons for it, to show an intention on the part of the defendant to reclassify Mr Jullien, still less to reclassify him with retroactive effect. At all events the posts asked for were not granted.

Grounds of judgment

During the course of the proceedings the applicant limited the conclusions of his application to the annulment of the Commission's implied decision rejecting his request for reclassification to a ruling that the Commission must classify him in the duties of a Principal Administrator and to the demand for payment of arrears of salary. In these circumstances the defendant no longer disputes the admissibility of the application and there is no reason for the Court to raise the matter of its own motion.

By letter dated 4 December 1963 the applicant asked to be classified as a Principal Administrator in career bracket A4/A5, with retroactive effect to 1 January 1962. The Commission took an implied decision rejecting this request since it did not reply to it within the time-limit laid down in Article 91 of the Staff Regulations.

In support of his case the applicant invokes the Commission's decision of 29 July 1963, adopting the table of definitions of the duties and powers attaching to each post, and in particular the definition contained in the said table of the duties of a Principal Administrator, which he considers to be the only definition applicable to the post held by him. This decision was brought to the notice of the staff by EEC Commission Staff Information Bulletin No 54 of 2 October 1963.

The applicant argues that his post corresponds either to that of a head of one particular sector of activity in a Division, or to that of a head of a specialized department, or to a post held by an official engaged in planning duties, these terms being taken in the sense given to them in the table of definitions of duties mentioned above.

Thus, in refusing to place him in the grade corresponding to the said posts, the Commission has infringed the final subparagraph of Article 5 and Annex I to the Staff Regulations, as well as its decision of 29 July 1963.

It has not been alleged, still less established, that all subdivisions coming directly under a division are sectors of activity within the meaning of the said definition with the result that their respective heads are to be classified in the career bracket which the applicant claims.

Furthermore, the terms ‘sector of activity’ and ‘administrative unit’ do not correspond to clearly distinct concepts and therefore their application to the different subdivisions of an institution is to a certain extent discretionary, and depends on the general distribution of administrative responsibilities. Whilst the application of these concepts to a particular case may give rise to criticism, this fact alone is not of itself sufficient to render the measure liable to annulment for infringement of Article 5 of the Staff Regulations and measures in implementation thereof.

Although it is true that the arguments adduced by the applicant might justify calling the subdivision which he directs a particular sector of activity of a Division, they in no way exclude other evaluations. Furthermore the subdivision directed by the applicant has never been referred to as a ‘sector of activity’ in an official decision.

The tasks undertaken by the subdivision which the applicant directs, namely the administrative management of all the buildings occupied by the departments of the Commission in Brussels do not require as far as their direction is concerned specialized knowledge of university level and do not, therefore, require it to be described as a specialized department.

The duties carried out by the applicant do include some power of discretion and initiative and presuppose an up-to-date knowledge of the legal and technical problems relating to property management. However, the applicant has not shown that such powers and knowledge are greater than those found in a Grade Bl post, or that they inevitably come under the heading of planning duties within the meaning of the definitions mentioned above.

Finally the applicant has caused to be produced a document in which the Commission, in stating its reasons for its request to the Council of Ministers for budget appropriations for the 1964 financial year, showed its intention to consider the applicant's post as falling within Category A.

However, an internal administrative document of this sort, directed at persuading the budgetary authority to improve the organization of a department, cannot amount to a legally valid admission that the applicant has the right to be placed in the grade for which he asks but rather appears unsuited to the purposes for which it is quoted.

Therefore it is not established that the Commission has infringed the Staff Regulations and its decision of 29 July 1963 in refusing to reclassify the applicant in Grade A5.

It follows that the demand for payment of arrears of salary cannot be allowed.

Thus the application must be dismissed.

The applicant has failed in all his submissions and must therefore bear the costs of the present proceedings, except those which the Commission has itself incurred, in accordance with Article 70 of the Rules of Procedure.

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 Treaty establishing the European Economic Community; Having regard to the Staff Regulations of officials of the European Economic Community, especially Articles 5, 91, 102 and Annex I; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70; THE COURT (Second Chamber) hereby:

1 Dismisses Application 10/64 as unfounded;

2 Orders the applicant to bear the costs, with the exception of those incurred by the Commission.