JUDGMENT OF 28.6.1972 — CASE 37/71 JAMET v COMMISSION

In Case 37/71

THE COURT (First Chamber) composed of: J. Mertens de Wilmars (Rapporteur), President of Chamber, A. M. Donner and R. Monaco (Judges), Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Statement of facts and procedure

The facts and procedure may be summarized as follows:

1) The applicant has been an official of Euratom since 1962 where he began as a draughtsman in a post in Grade C 2. Between 1963 and 1967 his duties were described as follows in the periodic reports : and according to the report of 27 April 1967 of the Committee of Draughtsmen and Designers at the Research Centre, Ispra the applicant ‘is of the technical standard of a trainee designer’.

for the period from 1963 to 1965: draughtsman, projects for various devices ;

for the period from 1965 to 1967: trainee designer: electromechanical design and planning;

2) In application of Articles 5(4) and 92 of the Staff Regulations of Officials, the table showing basic posts and corresponding career brackets for officials in the scientific and technical services is given in Annex IB of the Staff Regulations. This table specifies that the basic post of a draughtsman corresponds to a career bracket covering Grades C4 to C1 and that the basic post of designer corresponds to a career bracket in Grades B3-B2.

3) Since he considered that he was performing the duties of a designer and that those duties fell within career bracket B3-B2 the applicant, on the basis of the above-mentioned provisions of the Staff Regulations, requested on 14 December 1967 that he should be re-graded in Category B. This request was rejected on 24 January 1968 by the officers of the Commission on the ground that the applicant was not actually performing the duties of a designer. The Administration did not reply to a further request dated 6 June 1968.

4) By a decision signed on 3 February 1971 and notified to the applicant on 25 February 1971 he was appointed to the post of laboratory technician in Grade B4, Step 1 (in principle the career bracket of laboratory technicians is B5-B3).

5) On 3 March 1971 the applicant submitted a complaint against this appointment as follows: ‘The instrument promoting me mentions “laboratory technician” which does not correspond in any way to my duties which are those of a designer. Would you therefore be good enough to make an appropriate amendment to the instrument’. Since he received no reply to this complaint the applicant lodged this application on 2 July 1971.

6) After hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry. The parties presented oral argument on 17 February 1972. The Advocate-General delivered his opinion at the hearing on 4 May 1972.

II — Conclusions of the parties

The applicant claims that the Court should :

1. Principally

decide, or at least rule that the applicant shall be, or at least should be, classified in Grade B3, since the post which he actually occupies is that of a designer, the step within this grade being determined by application of Articles 44 and 46 of the Staff Regulations of Officials and his seniority in this grade starting to run from 26 August 1965 with all the legal consequences arising therefrom, in particular, payment of arrears of salary from the date of classification in B3.

2. Alternatively

partially annul the instrument of appointment and promotion of 3 February 1971 in so far as it describes the post to which the applicant is appointed as that ‘of laboratory technician’ and provides that the grade to which the applicant is promoted is Grade B4;

decide, or at least rule that the post to which the applicant is appointed is that of designer and that he is, or at least, should be promoted to Grade B3, the step within that grade being decide by application of Article 46 of the Staff Regulations and the seniority in this grade starting to run from 1 December 1970 and at the step conferred on 1 December 1969 with all the legal consequences arising therefrom, especially the payment of arears of salary from 1 December 1970.

3. In any event

annul the implied decision of rejection of the complaint lodged on 3 March 1971 and registered on 18 March 1971;

order the defendant to bear the costs.

The defendant contends that the Court should:

declare the application inadmissible or unfounded;

order the applicant to bear the costs.

III — Submissions and arguments of the parties

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

A — Admissibility

1. The admissibility of the principal claim The defendant asserts that the principal claim is inadmissible because it is out of time. In fact the applicant made his first request to be regraded in Category B on 14 December 1967 and this was rejected by a decision of 24 January 1968; he did not lodge an application before the Court against this decision. The applicant made a fresh request on 6 June 1968 which the Administration only refused by implication from its failure to reply and this likewise was not contested. The period of time for lodging an application to the Court against keeping the applicant in Grade C2 has thus long since expired. The applicant replies that although the above-mentioned implied and express decisions cannot now be contested the decision of 3 February 1971 appointing the applicant to Grade B 4 constitutes a new fact which makes the period of time for lodging an application for re-grading begin to run again. The fact that the appointment was made whilst the duties and the post of the applicant have remained unchanged in fact constitutes official recognition by the defendant that the post occupied by the former was that of a designer. The objection to the effect that the appointment in question was to Grade B4, intended for trainee designers and not to Grade B3 (the starting grade in the career bracket of designer) cannot be sustained as under the Staff Regulations there is no post of ‘trainee designer’, only that of designer in a careeer bracket B3-B2 and, moreover, the applicant is by no means a trainee since he has performed these duties since 1965. The defendant replies that the appointment of the applicant to Grade B4 in no way involves recognition that he performed the duties relating to the post of designer. Grade B4 is not a starting grade in the career bracket of designer but a laboratory technician grade to which the applicant was appointed because he had shown the ability for the career bracket of a designer but this does not imply acknowledgement of the fact that he was actually performing all the duties of a designer.

2. The admissibility of the alternative claim The defendant asserts that if the Court holds that this claim is admissible it would encroach upon the prerogatives of the appointing authority and decide a promotion without observing the formalities laid down by the Staff Regulations. In fact on one hand no appointment can be made without a post being declared vacant and on the other the persons to be considered for promotion vary according to whether the relevant post is in Grade B4 or Grade B3. The subsidiary claim is thus inadmissible. The applicant replies that the Court would not encroach upon the prerogatives of the administration if it were to rule in favour of the conclusions seeking the amendment of both the description of the post held by the applicant and of his grading. It is indeed of the essence of the power of the Court in legal disputes that it may totally or partially annul an administrative measure which is contrary to the relevant legal provisions or which is based on incorrect facts or facts which are wrongly described in view of the legal provisions applied. The application for the proper grading of the applicant is likewise admissible because the applicant merely requests on the one hand that a situation, his post, should be correctly described in terms of the Staff Regulations but on the other hand does not request to be promoted, since hs has been promoted, but to be given the grading required under the Staff Regulations. The sole question at issue is thus to apply the legal provisions to a specific administrative situation. In addition it is impossible to base an argument on the fact that the alleged purpose of the application is to have the applicant appointed to a post which is not vacant when he has not been included in the list of officials eligible for promotion to B3. In fact a post as a designer was vacant but it was arbitrarily decided that this post should be classified in Grade B4; furthermore officials eligible for promotion to B 4 were in fact officials destined to become designers and thus eligible for promotion to B3. Finally it was pointless to make a comparison of the abilities of the applicant with those of any designers in Grade B4 who likewise should not have been promoted but regraded in B3. The defendant replies that the alternative claim in fact seeks to have the Court decide a promotion. The promotion relates exclusively to Grade B4 since all the necessary formalities for promotion to this grade were complied with (such as consideration of the comparative merits of the candidates). The applicant nevertheless claims that the Court should accord him the right to promotion to Grade B3 which cannot be granted without failing to observe the provisions of the Staff Regulations and its budgetary feasibility.

3. Admissibility of the application against the decision rejecting by implication the complaint of 3 March 1971 In the rejoinder the defendant observes that this application which is intended to have the decision of promotion amended is also inadmissible since it would lead to a declaration by the Court that the promotion to Grade B4 is unlawful because it should have been to Grade B3 and an order that the defendant promote the applicant.

B — The substance of the case

1. The applicant asserts in the first place that the contested decisions were adopted in breach of Article 92 and Annex 1(b) of the Staff Regulations of Officials and of the decision of the former Euratom Commission of September 1963 concerning the definition of the duties and the powers attaching to the basic posts. In accordance with the latter provision a designer must of necessity be appointed to career bracket B3-B2 and the basic post of designer is defined as ‘that involving sole responsibility for drawings of an entire project’, that duty entailing ‘several years' experience as a draughtsman’. A designer, even a trainee designer, could by no means be graded in B4 which is reserved to laboratory technicians (laboratory staff). The applicant asserts that the post to which he was appointed by the instrument of 3 February 1971 is a post as designer since in that post he was required independently to design a complete project and because he has had long experience not merely as a draughtsman but in addition as a designer. Consequently the applicant could not have been appointed to Grade B4 which corresponds to the basic post of laboratory technician (member of the laboratory staff), but should have been appointed to Grade B3. Secondly, the applicant asserts that the decision taken infringes the principle of the strict correspondence between the grade and the basic post formally established by Articles 5 and 92 of the Staff Regulations of Officials. In the present case the applicant, who has the abilities of a designer, has for a long time in practice performed the tasks of a designer. The instrument appointing him dated 3 February 1971 confirms that the applicant carries out the duties of a designer corresponding to the basic post of a designer in Grade B3, even if the defendant termed this post ‘laboratory technician’ in order to be able to classify the applicant in Grade B4. Finally the applicant asserts that the contested measures were adopted in breach of the general decision of the Commission of 10 March 1971 whereby ‘in any decision of appointment to a post in a career bracket in a higher category, the person concerned shall be classified in the starting grade of the said career bracket’. Since the starting grade in the career bracket of designer is Grade B3, the applicant should have been appointed to that grade. The applicant infers from the foregoing that he is entitled to be classified in Grade B3 and not in Grade B4 or, alternatively, that the instrument of appointment and promotion of 3 February 1971 should be partially annulled in so far as it describes the post to which the applicant was appointed as that of laboratory technician and fixes Grade B4 instead of Grade B3 as that to which the applicant is appointed.

2. The defendant replies that the applicant has failed to establish that the duties which he performs are those of a designer and that in the present case his long experience as a draughtsman and the fact that he has already carried out projects are not capable of establishing that he performed fully all the duties of a designer as defined in the table describing the basic posts. It adds that the decision it adopted appointing the applicant to Grade B4 forms part of a policy intended to enable draughtsmen graded in Category C to make the transition into Category B more easily by means of the promotion of draughtsmen who have shown their qualifications for the career of a designer to the post of laboratory technician in Grade B4. Such designers do not in fact perform the duties of a laboratory technician but this does not affect them adversely because without such promotion they would remain in Category C as they do not fulfil all the conditions for promotion to the post of designer.

3. The applicant replies that the practice relied upon by the Commission is unlawful. In fact the Commission cannot claim to draw a distinction between designers and trainee designers and appoint the latter to Grade B4 which corresponds to a post the duties of which are not performed by the applicant. When a designer is at the beginning of his career he must be appointed to the starting grade in the career bracket of designer otherwise all starting grades in all career brackets for officials starting in those career brackets must be reduced by a grade. The applicant adds that he was no longer a trainee designer since his status as a designer had been recognized as early as 1965. Furthermore, the defendant has itself admitted that the applicant performed the duties of a designer since it stated in its statement of defence that it assigned to Grade B4 officials ‘suited to the career bracket of designer’ and ‘who continue to perform their duties as draughtsmen whilst carrying out certain projects’.

4. The defendant replies that the applicant has failed to show with a sufficient degree of proof that either since 1965 or since the date of his promotion to B4 he has been performing in full all the duties of a designer. Even although in various periodic reports mention is made of ‘trainee designer’ this is because from time to time the applicant was required to carry out simple projects. Nevertheless this does not prove that he carried out in full all the duties of a designer in Grade B3. Such a designer carries out regularly, not mrerely occasionally as do all draughtsmen, more comprehensive projects and series of projects. The fact that the applicant has been carrying out certain projects for some time still does not establish that he had carried out in full the new duties of a designer.

Grounds of judgment

Admissibility

1. The defendant asserts that the application is inadmissible in that it seeks, principally, a decision, or at least a ruling, that the applicant should be classified in Grade B 3 with effect from 26 August 1965 and in that, alternatively, it requests the partial annulment of the decision of 3 February 1971 and as a further alternative the annulment of the decision rejecting by implication the complaint submitted by the applicant against the said decision.

2. The applicant, a draughtsman in Grade C1 at the Joint Nuclear Research Centre at Ispra, having made various unsuccessful requests to have his post re-graded in the career bracket of designer, B3-B2 in 1967 and 1968, was appointed by a decision of 3 February 1971 to a post as a laboratory technician in Grade B4, Step 1.

3. On 3 March 1971 he requested by means of a complaint through official channels that that decision be amended by substituting for the reference to ‘laboratory technician’ that of ‘designer’.

4. Since the competent authority did not reply to this complaint the applicant lodged this application before the Court.

5. The application is principally for a decision that the applicant should be classified in Grade B3 with effect from 26 August 1965.

6. This first head of claim must be dismissed as inadmissible since that request has already been the subject of previous implied decisions of rejection which were not contested within the period laid down in Article 91 of the Staff Regulations of Officials.

7. The applicant objects that the decision of 3 February 1971 recognizes by implication that the requests previously rejected were well-founded and thereby constitutes a new fact which re-opens the period for lodging an application against those decisions.

8. Without it being necessary to consider to what extent a new fact is capable of re-opening a period for lodging an application which the person concerned has allowed to expire, it is sufficient to state that, far from having the meaning which the applicant attaches to it, this decision expressly guides that it will only take effect from 1 January 1971.

9. Secondly the application is for the partial annulment of the instrument, appointment and promotion of 3 February 1971, ‘in so far as it describes the post to which the applicant is appointed as that of a laboratory technician and refers to the grade to which he is promoted as Grade B4’.

10. This request is also inadmissible.

11. The parts of the contested decision whose annulment is requested are inseparable from this decision as a whole so that in their absence the measure in dispute would no longer be capable of producing legal effects.

12. Furthermore, if the Court were to annul the entire measure this would constitute a ruling ultra petita since the application against the contested decision does not concern public policy.

13. On the other hand, the application is admissible to the extent to which it refers to the anulment of the implied decision of rejection resulting from the failure to reply to the complaint against his appointment and promotion of 3 March 1971 submitted by the applicant to his immediate superior.

14. This complaint constitutes a request for re-grading of a post and, as such, is admissible.

Substance of the case

15. Before the decision of 3 February 1971 the applicant had for several years held the post of draughtsman which in accordance with Annex I(B) to the Staff Regulations corresponds to career bracket C4-C1 on the office staff of the Scientific and Technical Services of the Joint Nuclear Research Centre.

16. During this period various periodic reports were drawn up concerning him the last of which, relating to the period from 1 July 1965 to 30 June 1967, states as the principal duties performed ‘trainee designer, electromechanical design and planning’.

17. According to the above-mentioned annex, the post of draughtsman corresponds to a career bracket covering Grades C4-C1 and the post as designer corresponds to a career bracket covering posts B3-B2.

18. It was intended that those two career brackets should be filled by the Design Office staff of the Joint Research Centres.

19. Two grades correspond to the career bracket of designer which, according to the description of duties, involve posts defined as follows :

‘Executive officer:

B 2 —) Designer responsible for designing important projects unassisted on the basis of the data laid down in the specifications and in particular for making the calculations relating to such projects. He gives instructions to the draughtsmen responsible for draughting the details of the said projects.

B 3 —) Designer responsible for designing a complete project unassisted. This position implies several years experience as a draughtsman’.

20. In view of the skills acquired by the applicant which were attested inter alia by his periodic report the defendant appointed him to Grade B4 to a post described in Vacancy Notice No COM/P/2/70 as that of laboratory technician by altering his category.

21. Nevertheless the Commission does not contest that this description does not correspond to the post occupied by the applicant.

22. According to the description of duties, a laboratory technician in Grade B4 is responsible for carrying out experiments and tests in various sectors and assembling and classifying the results and is therefore a member of the laboratory staff.

23. The defendant has stated that the duties actually performed under the incorrect description of laboratory technician correspond to those of a draughtsman who has shown that he has the ability to occupy the post of designer and who, in addition to the usual duties of draughtsmen with which he is entrusted, occasionally carries out complete, albeit simple, projects without however performing all the duties which distinguish the post of designer from that of draughtsman.

24. The applicant has not contested that he did not perform all the duties of a designer.

25. On the contrary he asserted that this fact was unimportant because, since the appointing authority did not keep him in the post of draughtsman in Grade C1, it should inevitably have appointed him to the post and grade of a designer.

26. Whilst it is established that the applicant has the ability required for the post of designer it is however not established with a sufficient degree of proof that he in fact regularly performs all the duties constituting the said post.

27. There is no doubt that the legality of the decision in question is very uncertain in that it allocates to an official a post in Grade B4 the duties of which were not performed by him, as was known, but this fact does not prove that the applicant performed duties corresponding to the post and grade in which he requests to be re-graded.

28. Consequently the application must be dismissed.

Costs

29. Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

30. The applicant has failed in his application.

31. Nevertheless under Article 70 of the said Rules of Procedure, in proceedings brought against them 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 Treaty establishing the European Economic Community; Having regard to the Staff Regulations of Officials, especially Articles 5 and 91 and Annex I (B) ; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 70, THE COURT hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.