JUDGMENT OF 14. 12. 1965 — CASE 52/64 PFLOESCHNER v COMMISSION

In Case 52/64

THE COURT (Second Chamber) composed of: W. Strauß, President of Chamber, A. M. Donner and R. Monaco (Rapporteur), Judges, Advocate-General: J. Gand 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 entered the service of the Commission on 11 July 1958. On his integration under the Staff Regulations he was classified in Grade L/B, Step 4. On 21 December 1962 he was appointed an established official in Grade L/A5, Step 5. By decision of 23 September 1963 he was classified in Grade L/A4, Step 2, as from 1 January 1962.

By letters of 24 July and 30 September 1964 addressed to the Director-General of Administration and the Commission respectively, the applicant requested that he be awarded Step 4. On 2 October 1964 he was informed by the Director-General of Administration that his ‘application was under consideration by the competent departments’.

As he received no reply to these two letters within the period of two months provided for by Article 91 of the Staff Regulations of officials he lodged the present application on 23 November 1964.

II — Conclusions of the parties

The applicant claims that the Court should:

‘Declare the present application to be admissible and well founded; therefore, by varying the implied decision of the Commission of the European Economic Community refusing the request: declare the apphcant was wrongly classified by the decisions of 21 September 1962 and 23 September 1963; declare that the applicant shall be classified in Grade L/A4, Step 5, with 16 months' seniority in that Step and that he be paid arrears of salary from 1 January 1962; order the defendant to pay the costs;’

The defendant contends that the Court should:

‘dismiss the present application as inadmissible or, alternatively, as unfounded; order the applicant to pay the costs in accordance with the applicable provisions’.

III — Submissions and arguments of the parties

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

Admissibility

In this application the applicant puts forward the following considerations:

a) Primarily Article 90 of the Staff Regulations provides an opportunity for each official to submit a complaint to the appointing authority. No time-limit is laid down for this purpose. As the applicant had received from the administration no reply to his complaint within the two-month period he brought the present application within the time-limit laid down by the Staff Regulations.

b) Further In view of the judgment given by the Court in Joined Cases 42 and 49/59, there is reason to consider the judgment in Case 70/63 as a ‘new factor’, in the light of which the administration must reconsider its position on the meaning and application of the various Articles of the Staff Regulations. Thus, far from merely confirming its earlier point of view, the refusal of the administration to deal with the complaint of the applicant contains an implied decision that the judgment in Case 70/63 did not entail the adoption of a different attitude. Therefore a new decision exists which can be contested.

c) Further Good faith is to be presumed on the part of the administration as much as on the part of officials. The interpretation of the Staff Regulations which appears in the decision of 23 September 1963 must therefore be presumed to have been given and accepted at that time in good faith.

The judgment in Case 70/63 has shown this interpretation to be wrong. It therefore constitutes a new factor capable of reviving the applicant's right of action.

It is, moreover, a general rule in both national and Community administrations that a judicial decision given in favour of an official on a question of interpretation of the Staff Regulations inures to the benefit of all others in the same situation. This is an administrative practice which is inspired by an obvious concern for fairness and the need to avoid an unprofitable multiplicity of disputes.

The defendant maintains that, according to the case-law of the Court, an administrative complaint alone could not be the basis of an appeal to the Court unless the express or implied decision to which it gives rise is a genuine decision rather than a mere confirmation of an earlier decision. In the latter case the application is inadmissible if, when the complaint is submitted, the original decision can no longer be contested. In this instance, the applicant's complaint was filed when the period for bringing an application against the decision of 23 September 1963 — the only decision capable of being contested — had long since expired.

The applicant is wrong in believing that in the judgment in Case 70/63 of 7 July 1964 he is able to find a ‘new faotor’ which concerns him and is capable of causing these periods to run again.

The force res judicata which attaches to this judgment is limited to the parties to the action and thus does not extend to third parties such as the applicant. Such a result is in accordance with the general principles of law in force in Member States and is based on the obvious need to maintain stability in administrative arrangements.

It is a mistake to cite the judgment in Joined Cases 42 and 49/59 in order to maintain that the judgment in Case 70/63 is capable in this instance of causing expired periods for bringing applications to begin to run afresh, since the solution given in this judgment can only be explained by the particular facts of the case and therefore cannot extend to the present action in which the same facts do not exist. In fact:

the same parties were involved on the one hand in Joined Cases 42. and 49/59 and on the other in Joined Cases 32 and 33/58 and the subject-matter of the two cases was connected;

the above cases dealt with the financial arrangement for the equalization of ferrous scrap which, by its nature, is of joint concern to associated undertakings and which established a close interdependence between the individual positions and burdens of all the associates.

For all these reasons the present application is submitted out of time. The principle of good faith cannot be invoked against this bar as it cannot frustrate the principle of legal certainty.

The applicant replies that he has never claimed that the Court had formulated the principle that a judgment given in favour of one official must automatically apply to all those in the same or in similar situations. He merely stated that in the past, in accordance with a then current administrative practice, decisions given in favour of one official were always applied to others in the same situation.

Furthermore, it is also true that any judgment constitutes a source of law to the extent that it gives a certain interpretation of the texts applicable. Thus, the judgment in Joined Cases 42 and 49/59 did not hold that a judgment of the Court could only constitute a new factor in the particular circumstances of fact which characterized the dispute in that case, but it expressed a principle of general application which extends beyond that dispute namely, that a judgment of the Court constitutes a new factor if it obliges the administration to reconsider the grounds for its earlier decision.

The grounds of judgment in Case 70/63 laid down a general principle as regards the re-evaluation of posts which is quite contrary to the practice followed by the institutions. The applicant's complaint based on this judgment must, therefore, either lead the administration to reconsider the grounds for its earlier decision and then to decide either to apply to this decision the principle laid down in the judgment in Case 70/63, or to depart from this principle. In this instance the latter option was chosen and it cannot be denied that, in such circumstances, the decision of the administration is a new decision rather than a mere confirmation of an earlier one.

Finally, as regards observance of the principle of legal certainty referred to by the defendant, it must not be forgotten that in national systems of administrative law a rigorous application of this principle is mitigated by exceptions which are all the more justified in new or developing legal systems such as Community law.

The development of this law is largely carried out by the judgments of the Court, which for this reason are often likely to constitute a ‘new factor’. In such a system, to uphold a decision which is contrary to the principles of law contained in a judgment of the Court constitutes the adoption of a new attitude.

In its rejoinder the defendant emphasizes that the circumstances referred to in the judgment in Case 70/63 cannot be compared with those of the present action and that it is, therefore, impossible to invoke the principle of the ‘new factor’ in this case. Finally, the defendant refers to the judgment of the Court in Joined Cases 50, 51, 53, 54 and 57/64.

On the substance of the case

The applicant makes the preliminary observation that the integration of officials in the Language Service must be carried out on the basis of Article 102 (4) (b) of the Staff Regulations rather, than on the basis of paragraph (1). This paragraph states that ‘a servant … may … be established’ while paragraph (4) provides that ‘an official in the Language Service shall be classified in the grade for his post’.

Secondly, the applicant states that both before and at the time of the entry into force of the Staff Regulations he was performing duties described in those Regulations ‘Head; of Interpretation Section’; he is prepared to demonstrate the accuracy of this claim.

This being so, he should have been accorded Grade L/A5, Step 5. By a a decision of 23 September 1963 the appointing authority acknowledged his right to classification in L/A4 but, at the same time, only awarded him Step 2.

After emphasizing that, in spite of the different wording of paragraphs (1) and (4) (b) of Article 102, the integration of officials in the Language Service is no more automatic than that of other officials, the defendant states that the classification of the applicant in L/A5, Step 5, was in accordance with Article 102 of the Staff Regulations and that his reclassification in L/A4 was decided on outside the procedure laid down by mat Article.

The defendant here observes that the post of ‘Head of Interpretation Section’, was only created by the Staff Regulations. Before the entry into force of these Regulations the applicant held the post of ‘Interpreter’, with the result that in accordance with Article 102 (1) and (4)' he could. only be established in L/A5, Step 5. The applicant only obtained Grade L/A4 by the decision of 23 September 1963 as a result of a reclassification procedure which was distinct from th procedure for establishment and arose put of the fact that his duties as Assistant Head of the Interpretation Division were to be put in the same category as those of ‘Head of Interpretation Section’, within the meaning of Annex I to the Staff Regulations.

As, on that occasion, the question had been one of determining the step to be attributed to the applicant, it had been impossible to apply the criteria laid down by the judgment in Case 70/63. First, that judgment concerns the reassessment of a post, while this case merely concerns the evaluation of the post; secondly, although, as in Case 70/63, it is quite possible for the new classification of posts introduced by the Staff Regulations to have, indirectly or otherwise, a retroactive effect as regards officials of the ECSC, this cannot apply to servants whose positions before the entry into force of the Regulations were governed by contract. In such circumstances the Commission could only apply the rule ‘of general law; which appears to emerge from all the provisions of the Staff Regulations on the subject’ and which, in cases of change of grade, avoids as far as possible any break in the continuity of the right of an official during his career to increasing remuneration.

After leaving to the discretion or the Court the question of the meaning of paragraphs (i) and (4) of Article 102 of the Staff Regulations the applicant maintains in his reply that there is no real substance to the argument that the ‘post’ (and not the ‘duties’) of the ‘Head of Interpretation Section’ had only been created by these Regulations. In fact, the applicant was already performing the duties of ‘Assistant Head of the Interpretation Division’ before the entry, into force of this provision and he is still performing them now as they were shown to be necessary by the development of the department and were therefore drawn up before the Regulations came into force.

Finally, the applicant. contends that no re-assessment of post had been made in this instance and that for this reason the criteria laid down in the judgment in Case 70/63 could not be applied. He claims that the distinction made by the defendant in this connexion between the position of officials of the ECSC and that of servants of the EEC appointed under contract in the period before the Staff Regulations came into force is not relevant, as before the entry into force of the Regulations servants had been the subject of many administrative measures (creation of a Language Service similar to that of the ECSC, publication of competitions, promotions, awarding of steps, etc.) which virtually embodied a system of regulations.

In its rejoinder the defendant repeats the arguments set out in the statement of defence.

IV — Procedure

The procedure followed the normal course.

Upon hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General, the Court (Second Chamber) decided that there were no grounds for any preparatory inquiry.

The parties presented their oral submissions at the hearing on 7 October 1965.

The Advocate-General delivered his opinion at the hearing on 10 November 1965.

Grounds of judgment

Admissibility

The applicant has referred to the Court the failure of the Commission to take a decision on his letters of 24 July and 30 September 1964 concerning the classification awarded him by decision of 23 September 1963. The defendant maintains that his application was in fact against the decision of 23 September 1963 and that it was therefore inadmissible for being out of time.

Under Article 91 (2) of the Staff Regulations of officials appeals must be filed within a period of three months from the date of notification to the person concerned of the decision in dispute.

A request or complaint through official channels which is not made within this period cannot, upon the expiry of this period, escape being tune-barred.

In this instance the decision of 23 September 1963 classifying the applicant was notified to him by 31 October 1963 at the latest. His request or complaint of 24 July 1964 was thus made after the expiry of the period of three months laid down in Article 91 (2) of the Staff Regulations.

The fact that the applicant was informed that his request or complaint was under consideration cannot cause this period to start to run afresh. In fact, such a temporizing reply amounts to a failure to give a decision within the meaning of Article 91. It could not, therefore, re-open the period for bringing an appeal to the Court.

The applicant relies on the new factor which, he maintains, is constituted by the judgment in Case 70/63 delivered on 7 July 1964 in an action between the Court and one of its servants. The judgment annulled an individual decision regarding the classification of that servant.

The only persons concerned by the legal effects of a judgment of the Court annulling a measure taken by an institution are parties to the action and those persons directly affected by the measure which is annulled. Such a judgment can only constitute a new factor and cause the periods for bringing appeals to run afresh as regards these parties and persons.

As this is not the case in this instance the application is inadmissible.

Costs

The applicant has failed in his application.

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, in proceedings by servants of the Communities, institutions shall bear their own costs.

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 the Court of Justice of the European Economic Community; Having regard to the Staff Regulations of officials of the European Economic Community and of the European Atomic Energy Community, especially Articles 90 and 91; 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 52/64 as inadmissible;

2 Orders the applicant to pay the costs of the action, apart from those incurred by the defendant.