JUDGMENT OF 15. 12. 1966 — JOINED CASES 15/64 AND 60/65 MOREAU v COMMISSION

In Joined Cases 15/64 and 60/65

THE COURT (First Chamber) composed of: A. Trabucchi (Rapporteur), President, L.Delvaux and R. Lecourt, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

The facts may be summarized as follows:

The applicant joined the Press and Information Department of the Commission of the EAEC on 1 September 1960, his remuneration being equivalent to the salary received at that time by an official of the ECSC in Grade A 4, Step 4.

When he was integrated pursuant to the Staff Regulations he was classified in Grade A 4, Step 4, with effect from 1 January 1962, his seniority in that step dating from 1 September 1960.

By letter of 21 February 1964 addressed to the President of the Commission of the EAEC the applicant made a request through official channels for classification in Grade A 3 from 1 January 1962 based on the fact that he occupied a post in this grade both before and after his integration under the Staff Regulations.

By an application lodged at the Registry on 29 April 1964 the applicant challenged the implied decision of refusal to be inferred from the silence of the Commission.

Although the defendant acknowledged from the very beginning of the administrative proceedings the applicant's right to be classified in Grade A 3 in accordance with the principle that posts correspond to certain grades as laid down in Annex I to the Staff Regulations, it stated that it could not grant the applicant's request, because the Council had not authorized in its budget the post for which it had applied for this purpose.

Subsequently the Council decided on 13 October 1964 to convert the post in Grade A 4 occupied by the applicant into a post graded A 3. Therefore by decision of 13 January 1965 it accorded the applicant Grade A 3 with effect from 1 January 1962. The last recital of this decision, which provisionally assigned the applicant Step 2 in this new grade, stated that:

‘a final decision on the step to be assigned will be made at a later stage, particularly after taking into consideration the decision which the Court is asked to make in Case 70/63; this decision therefore only assigns the step on a provisional basis in accordance with the rules of Article 46 of the Staff Regulations, without prejudice to the rights of Mr Moreau in this respect’.

By a decision of 14 September 1965 the Commission determined finally the applicant's position under the Staff Regulations by establishing him in Step 2, with seniority in that step from 1 October 1961.

The decision determining his step is justified by the following considerations:

‘Whereas the position of the contractual servant, who was employed by the institution before the entry into force of the Staff Regulations and appointed to a higher grade when the Staff Regulations entered into force through the application of the table showing posts and their corresponding grades (Article 5 (4) of the Staff Regulations and Annex I thereto) is governed by Article 46 of these Staff Regulations; and whereas all the reclassifications of servants of the institution on the entry into force of the Staff Regulations with the object of harmonizing grades and posts were effected in accordance with the provisions of Article 46 of the Staff Regulations; and whereas it is necessary therefore to apply these provisions to the case of Mr Moreau; and whereas under this Article Mr Moreau must be classified in Step 2 of Grade A3 with seniority in that step from 1 October 1961’.

By an application lodged on 13 December 1965 the applicant contested this decision.

II — Conclusions of the parties

The applicant claims in his application in Case 15/64 that the Court should:

‘1. Rule that the implied decision of refusal to grant his request of 21 February 1964 is null and void; 2. Rule that his appointment, to the extem to which it classified him in Grade A 4, is null and void; 3. Rule that the Commission is obliged to classify the applicant in Grade A 3, at the step to which he is legally entitled, with effect from 1 January 1962; 4. Order the Commission to pay to the applicant by way of arrears of salary the sum of 1 franc subject to the right to amend this sum as he may deem necessary during the course of the proceedings; 5. Order the Commission to pay to the applicant by way of damages and interest thereon for non-material damage the sum of 1 franc subject to the right to amend this sum as he may deem necessary in the course of the proceedings; 6. Order the defendant to pay the costs’.

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

‘— take note that the Commission applied to the Council for the conversion of the post occupied by the applicant, when he was integrated, into a post corresponding to the tasks which he performs; — declare that the Commission has not exercised its powers in an illegal manner justifying the annulment of the contested decisions; — consequently dismiss the application against the Commission as unfounded; — decide in its discretion to what extent the application is by implication directed against a decision of the budgetary authority’.

The applicant in his reply repeats his original conclusions, withdraws claim No 2 and asks that claim No 4 be reserved.

The defendant contends in its rejoinder that the Court should:

‘Without prejudice to any issue, in particular that of admissibility, which the Court may raise of its own motion: take note that the Commission appointed the applicant to Grade A 3, Step 2, with effect from 1 January 1962 by decisions of 13 January and 9 September 1965; declare that the application, the main object whereof is “the classification of the applicant in Grade A 3 and at the step to which he is legally entitled” no longer has any purpose; declare that consequently it is no longer necessary to decide as to the principal claim in the application; dismiss the claim for damages and interest thereon for non-material damage as unfounded; decide in its discretion how the costs of the action shall be borne’.

The applicant in his application in Case 60165 claims that the Court should:

‘— annul the decision of the Commission of the EAEC of 14 September 1965 in so far as it determines the step at which the applicant is to be classified; — rule that the applicant is to be classified in Grade A 3, Step 5, with effect from 1 January 1962 with the benefit of all the resulting financial consequences and arrears of salary from that date; — rule that the applicant's step in his grade at the present time be determined after taking into account the biennial advancement laid down in Article 44 of the Staff Regulations; — order the defendant to bear the costs’.

The defendant contends that the Court should:

‘— dismiss the application as unfounded; — order the applicant to bear the costs in accordance with conditions laid down in Article 70 of the Rules of Procedure’.

The applicant claims in his reply that the Court should:

‘— take note that the applicant's conclusions in his application stand as originally pleaded with the exception of the second conclusion which must now be read as follows: rule that the applicant is to be classified in Grade A 3, Step 4, with effect from 1 January 1962 with the benefit of all the resulting financial consequences and arrears of salary at that date; as a subsidiary matter: — request the institutions which are not parties to these proceedings to produce all such information as the Court shall deem necessary for the purpose of these proceedings and, in particular, to request the Commission of the EEC to state what measures it took for the assignment of steps when the applicant's colleagues, as heads of department, in the Press and Information Department were reclassified.’

The defendant contends in its rejoinder that the Court should:

‘— declare that if the applicant has introduced a new claim in his reply based on a fresh issue both the claim and the issue are inadmissible; — reject the claim put forward “as a subsidiary matter” the conclusions to the reply as irrelevant because it does nothing to resolve the issue raised in this case; — reject the remaining claims in the application as unfounded; — order the applicant to bear the costs in accordance with the provisions of Article 70 of the Rules of Procedure.’

III — Submissions and arguments of the parties

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

Case 15/64

As the Commission decided during the course of the proceedings to assign the applicant Grade A 3, which is the main purpose of Case 15/64, it is unnecessary to examine the submissions and arguments put forward in support of this claim by the applicant.

With regard to the claim for compensation for non-material damage which the applicant maintains that he suffered from the previous refusal of his request by the Commission, the defendant denies that any such damage occurred. It submits that it is well-known that the refusal was caused because no such post was authorized in the budget and that, as a result, no one could have regarded the retention of the applicant in Grade A 4 as an indication of the importance of his duties or his competence in those duties.

During the oral procedure the applicant stated that he did not wish to pursue this claim.

With regard to the costs relating to this matter the defendant in its rejoinder leaves them to the discretion of the Court.

Case 60/65

The submission based on Article 102 (1) of the Staff Regulations of Officials.

The applicant submits that his classification in Grade A 3, Step 2, is contrary to the provisions of Article 102 (1) of the Staff Regulations. His case is that, before the Staff Regulations were applied to him, he had by implication been accorded Grade A 3, Step 4, which corresponds, according to such Staff Regulations, to the duties which he performed before they entered into force and which he still performs.

The defendant denies that the applicant had by implication been accorded Grade A 3, Step 4, before the Staff Regulations were applied to him. The applicant has confused establishment in the grade and at the step, which had been ‘impliedly’ accorded him under Article 102 of the Staff Regulations with the harmonization of posts and grades in accordance with Article 5 and Annex I.

The applicant replies that, according to the interpretation of Article 102 of the Staff Regulations suggested by the defendant, the presence of the adverb ‘impliedly’ in the text of this Article would be completely meaningless.

The defendant replies that the word ‘impliedly’ in Article 102 cannot refer to the grading to which servants were entitled after the harmonization of posts and grades, for the very good reason that this Article refers to the grade and step accorded before the Staff Regulations were applied to them. Moreover it cannot be denied that before the applicant was integrated he was only ever classified in Grade A 4, Step 4.

The submission relating to the revaluation of the applicant's post

The applicant submits that in any case, even though the Staff Regulations are silent on this point, it must be accepted that, whenever a post is revalued the servant occupying the post is entitled to be classified in his new grade at the step accorded him in his former grade.

The defendant takes the view that this argument, which was applied in the case of Collotti v Court of Justice of the EEC, cannot be used in this case. The principle put forward by the applicant would in fact favour without any justification officials who had been assigned to posts which had been revalued, compared with those officials who had from the beginning been directly recruited in a higher post or who had obtained such a post by promotion before the entry into force of the Staff Regulations. The automatic application of such an abstract principle would in many cases cause the unjustified passing-over of servants with greater seniority and occupying a higher grade by younger servants who, although they performed the same duties, were in a lower grade before the posts were revalued. In order to determine the step in this case, Article 46 of the Staff Regulations must be applied. This provision not only covers promitions but also all appointments to a higher grade, including those made on the entry into force of the Staff Regulations with the object of ensuring that grades correspond to posts.

Because of the fundamental difference between the situation of an official like Mr Collotti appointed under the Staff Regulations, and the applicant Mr Moreau, who was engaged as a contractual servant, he is not in the position to rely on the criterion laid down in the Collotti Judgment.

On this point the defendant refers to the opinion of Mr Advocate-General Gand in Case 43/64, that the absence of any reliable method of assigning a grade and step under the system adopted before the Staff Regulations entered into force by reference to the system adopted by the EAEC does not permit a valid comparison which could lead with any certainty to a more favourable evaluation of the same duties and consequently to a revaluation of the post.

1 he defendant emphasizes that in tact under the system adopted before the Staff Regulations entered into force the grade and step were not primarily determined according to the type of post and seniority in the service respectively but also by reference to various factors not directly connected with the actual duties: experience, merit, age, previous salary, domestic situation etc. These factors cannot therefore be used as a basis for a comparison of posts and therefore for the revaluation of a post. In addition, under the Staff Regulations of the ECSC, there is only one grade for Mr Collotti's post and there was therefore no risk that he would be unjustifiably passed over. On the other hand the post of head of division, for which there were two grades, is restricted under the new Staff Regulations to one grade, which gives rise to the serious risk mentioned above.

The applicant does not accept the argument that the principle upon which the Collotti Judgment is based is not a generally applicable abstract rule of law independently of its application to the particular case. The necessity for, certainty in legal relationships means that the principle must be regarded as a rule of general application.

If the principle laid down in the Collotti Judgment is not applied to this case there would indeed be a gap in the law, since Article 46 of the Staff Regulations would not be applicable.

The risk mentioned by the defendant does not in fact exist, because, as the Court has already laid down, a state of affairs in respect of which an appeal to the Court has not been filed within the prescribed period can no longer be called in question.

The applicant claims that other officials working as he does in the Press and Information Department of the European Communities, some of whom are younger than he is, have benefited from reclassifications of step by the Commission of the EEC, which, although they do not follow the Collotti Judgment, do not result either from the automatic application of Article 46 of the Staff Regulations.

With regard to the view that the revaluation of a post is not an issue in this case because of the change-over from a system of engaging officials under contracts of service which was adopted before the Staff Regulations entered into force to a system under which their conditions of employment were governed by these Staff Regulations, the applicant replies that, even in the particular case of Mr Collotti, it is not absolutely certain that the position which he occupied corresponded to a clearly defined post in the language department. In addition, once their contracts of service have been entered into officials engaged under the so-called ‘Brussels’ contract are also subject, at least by analogy, to a system of authentic Staff Regulations. It is therefore useless from this point of view to ask whether the situation of Mr Collotti is on all fours with that of Mr Moreau.

The defendant raises the objection that the criterion adopted by the Court in the Collotti Judgment is not a legislative rule but a legal solution intended to decide in an equitable manner a specific issue of some difficulty having regard to the particular facts of that case. It does not therefore lend itself to a general interpretation and there is no gap in the law since Article 46 is applicable.

The applicant's claim that the rule followed by the Commission of the EEC be applied to him is a fresh claim and is therefore inadmissible as it was put forward in the reply. Moreover, since it is a claim for the application of the criterion of ‘reclassification of a step’, it contradicts the original claims which are for an acknowledgment of his right to be assigned Grade 3, Step 5, because it would lead to a different result.

In addition, the minor differences between the step assigned to certain heads of department in the Commission of the EEC and to those in the Commission of the EAEC are due essentially to the rules according to which steps were assigned by implication under the system adopted before the Staff Regulations entered into force. Since the Commission of the EEC based its decisions on grading chiefly on age, treated as an indication of experience, it is now in a position in cases similar to that of the applicant to embark on a kind of restructuring of career brackets by adopting a system which would make it possible to avoid the main difficulty in the Collotti Judgment, that is to say, the passing-over of officials in Grade A 3 by the heads of division in Grade A 4. This system of ascertaining what steps servants would have been assigned according to their age, if they had been classified in Grade A 3 on recruitment, is not applicable to officials of the Commission of the EAEC, because that Commission, in assigning steps, assessed the merits of candidates with more discrimination. In any case under the system of restructuring of career brackets the applicant cannot be assigned Step 4 in his present Grade A 3, because it would have been impossible for him to have advanced to such a step if the Commission had classified him at the very beginning in this grade. With such a classification he would have been entitled in fact to a salary of 33100 francs, whereas the salary he received was 29250 francs. Therefore, if Mr Moreau had been accorded Grade A 3, he would have been assigned a step corresponding to the latter salary which the Commission intended to grant him, that is to say, Step 1 (28900 francs) or, at best, Step 2 (30300 francs). The latter classification corresponds to the one assigned to him by the contested decision.

However, Article 102 of the Staff Regulations does not make any provision for checking the criteria adopted to determine the salary under the original contract of service. In the case of any conflict between the need to treat on the same footing all officials working in the same department and the need to apply the principle of equality of treatment to all officials belonging to the same institution and coming under the same administrative authority the latter must prevail. Therefore, even if the principle of restructuring of grading by reclassifying the steps in each grade is accepted, it must be implemented in accordance with the rules applicable to the departments of the EAEC.

Finally the defendant does not accept the arguments which minimize the importance of the difference between the legal position of Mr Collotti under the Staff Regulations and the legal position of the applicant under his contract of service. It cannot in fact be denied that the step in a grade in the case of a contractual servant is not determined in accordance with the same principles and does not have the same effect as the step in a grade accorded pursuant to the Staff Regulations of the EAEC. In fact under the Staff Regulations Mr Moreau would not have been able to be assigned Step 4 when he was engaged.

The applicant submits in addition that the Court must not only annul the contested decision but, by virtue of its unlimited jurisdiction, determine the administrative position of the applicant and state the measures which must be taken for its rectification. He emphasizes that it is important that the Court in this case should give a clear statement of the rules and criteria upon the basis of which the Commission must determine the administrative position of the applicant. The defendant takes the view that this does not amount to a submission but to one of the heads of the conclusions themselves. It is not certain whether the Court has unlimited jurisdiction in this matter. The dispute does not have a financial character within the meaning of Article 91 of the Staff Regulations, as any financial advantage which the applicant would derive from a judgment in his favour would only be the result of an administrative decision coming within the jurisdiction of the Commission.

IV — Procedure

The procedure took the normal course.

By order of 10 January 1966 the two cases were joined for the purpose of procedure and judgment.

By letter of 8 June 1966 lodged at the Registry on 13 June 1966 the applicant requested the Court to order that the minutes relating to item No 10 of the 144th sitting of the Council of the EAEC held at Brussels on 13 October 1964 be produced and added to the documents of the case.

The First Chamber of the Court decided that it was unnecessary to ask for production of the said document and opened the oral procedure without any preparatory inquiry. The parties presented oral argument at the hearing on 5 October 1966.

The Advocate-General delivered his opinion on 19 October 1966.

Grounds of judgment

Admissibility

The defendant has not challenged the admissibility of the present application and there is no necessity for the Court to raise the matter of its own motion.

The applications are admissible.

The substance of the case

Case 15/64

Following the decision of the Commission of 13 January 1965 assigning the applicant Grade A 3 the main conclusions of the application no longer have any purpose.

During the oral procedure the applicant stated that he did not intend to maintain his claim for compensation for non-material damage.

Therefore this case need only be examined for the purposes of making a decision as to costs.

Case 60/65

The applicant submits that before the Staff Regulations were applied to him he had by implication been accorded Grade A 3, Step 4. According to the applicant the grade accorded him by implication under Article 102 of the Staff Regulations is the grade corresponding to the duties performed by him during the period before the Staff Regulations entered into force according to the later assessment of the grade under the Staff Regulations.

The object of Article 102 of the Staff Regulations is to ensure that contractual servants, who are integrated in accordance with the said Regulations, keep the position which they previously occupied, by the almost automatic transference to the table set out in Article 66 of the Staff Regulations of the grade and step ‘expressly or impliedly’ accorded them before the Staff Regulations were applied to them.

On the other hand it is only possible to ensure that the duties performed correspond to the grade by reference to the provisions of Annex I to the Staff Regulations and to the definition referred to in the last paragraph of Article 5.

It cannot be disputed that before the entry into force of the new Staff Regulations of Officials the applicant's salary had been fixed with reference to the salary-scale of the Staff Regulations for Officials of the ECSC, at the salary corresponding to Grade A 4, Step 4, of that salary-scale.

It is not therefore true that the applicant had already been accorded Grade A 3, Step 4, before the Staff Regulations were applied to him.

Therefore this submission is unfounded.

The applicant submits that he has in any event the right to keep in the new grade accorded as a result of the revaluation of his post under the new Staff Regulations the step which he was assigned in his previous grade.

In the absence of any specific reference in the Staff Regulations to this situation, the application of the criterion of the simple transference of the step to the new grade would be understandable if the previous classification of the post were governed by the previous Staff Regulations of the ECSC or covered only one grade.

In fact under the Staff Regulations the assignment of a step is governed by precise and uniform rules.

On the other hand under the system of contractual engagements applied to the applicant before the entry into force of the new Staff Regulations of Officials the rules for determining the step in a grade were not so strict.

The implied assignment of a high step in a certain grade without being in any way connected with the seniority in the service or experience of the servant could in particular have been intended to enable him to be given, having regard to other considerations, the desired level of remuneration.

In these circumstances the application to such cases of the criterion of the automatic transference of a step would risk discriminating against officials subject to the previous Staff Regulations.

On the other hand the application of this criterion to the applicant, who had by implication been accorded a high step in a lower grade of a career bracket covering two grades, would also be likely to benefit him unjustly in comparison with other servants engaged under a ‘Brussels’ contract and performing the same duties and who had been by implication classified at a lower step but in a higher grade.

Therefore the criterion suggested by the applicant cannot be upheld.

The question whether the Commission adopted the correct method for determining the step assigned to the applicant remains to be decided.

Under the system of contractual engagements the implied assignment of steps by reference to the salary-scale under the ECSC Staff Regulations was mainly determined by the level of remuneration.

Therefore, in order to determine the step in the new grade, it is appropriate, as the Regulations are silent on this point, to be guided by a criterion which takes account principally of the salary attained previously.

Article 46 of the Staff Regulations relating to the promotion of officials lays down precise rules expressly designed to avoid any discrimination in salaries between officials moving up from a lower to a higher grade.

In the absence of any provision in the Staff Regulations applying precisely to the case in question, it is appropriate to accept that this provision may properly be applied by analogy to the applicant.

Therefore the applicant's submission is unfounded.

Costs

Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. However, under Article 70 of the Rules of Procedure institutions shall bear their own costs in actions by officials of the Communities.

In Case 15/64 the defendant admitted during the course of the proceedings the applicant's claim to be assigned Grade A 3.

The defendant has therefore admitted by implication the main submission in the application.

On the other hand during the oral procedure the applicant withdrew his claim for compensation for non-material damage.

In these circumstances the defendant must bear the costs of the action up to notification of the decision of the Commission of 13 January 1965.

On the other hand the applicant must bear any costs incurred by him relating to the period after the date of that notification.

As in Case 60/65 the applicant failed in all his submissions he must therefore bear his own costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinions of the Advocate-General; Having regard to the Treaty establishing the European Atomic Energy Community; Having regard to the Staff Regulations of Officials of the European Atomic Energy Community, especially Articles 91 and 102; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70; THE COURT (First Chamber) hereby:

1 Declares that Application 15/64 no longer has any purpose;

2 Dismisses Application 60/65 as unfounded;

3 Orders the defendant to pay the costs incurred in Application 15/64 up to the date of notification of the decision of the Commission of 13 January 1965 and orders the applicant to bear the costs incurred by him after that date.

4 Orders the parties to bear their own costs in Application 60/65.