OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 6 MAY 1965 (*1)

Mr President,

Members of the Court,

Application 43/64 which has been referred to you by the Second Chamber is the last episode in the argument which has been going on between the Secretary-General of the Councils of the European Communities and Mr Richard Müller ever since the Staff Regulations came into force. In order to understand it in its context, it will be helpful briefly to point out again the main landmarks in this official's career and the claims which he has made both through official channels and to the Court concerning it.

Mr Richard Müller was employed under contract on 31 August 1959 in Grade B VIII, Step 3, and was assigned to the accountancy department. He was then promoted to Grade B VIII, Step 3, on 1 April 1961. The next event was a decision of 1 November 1961 putting him in charge of checking the expenditure of the Secretariat of the Councils, both as regards liabilities entered into and orders to pay. This was before the financial rules for the Secretariat took effect, which did not occur until 1 January 1963. On 17 January 1963 Mr Müller was established under the new Staff Regulations in Grade B2, Step 3, which corresponded to a simple transposition from his former position. Almost immediately he was promoted to Grade B1, Step 1, by a decision of 28 March 1963 which refers to Articles 45 and 108 of the Staff Regulations. His promotion took effect from 1 October 1962 and his seniority in Step 1 was deemed to run from 1 April 1962. He then submitted a complaint which resulted in a decision of 21 June 1963 back-dating his promotion to 1 January 1962, with seniority in Step 1 calculated from the same date.

It was only on 15 October 1963 that the definitions of the duties and powers attaching to each basic post were brought to the attention of the staff. On 20 December 1963, that is to say, after the entry into force of the financial rules of the Secretariat, Mr Müller was confirmed in his post as financial comptroller. He formed the view that this post corresponded to Category A, and on 9 April 1964 he made a request through official channels to be graded in A5-A4 as from 1 January 1962. On 30 June 1964 he made Application 28/64 to this Court to that end.

But on 2 July 1964 the Secretary-General of the Councils expressly rejected the applicant's complaint and stated that the post which he had already held before the Staff Regulations came into force fell within career bracket B1. So on 15 July Mr Müller asked to be classified in Grade B1, Step 3, as from 1 January 1962, with seniority in that step as from 1 April 1961. Since he did not receive any reply, he made Application 43/64 to this Court on 22 September 1964.

You are aware that, since the case which we are now considering was pleaded before you, your Second Chamber was dismissed Application 28/64. It decided that the appointing authority had not misconstrued Article 45 of the Staff Regulations or Annex I thereto when classifying the applicant in Grade B1. So the legal position now is that you are no longer required to give judgment on Mr Müller's grade but on his step.

Let me say first of all that the application is directed against the Secretary-General of the Councils, that is to say, the appointing authority, and follows a complaint submitted to that same authority. This is an error as the defendant emphasizes and as your judgment in Case 28/64 stated. Acts affecting the legal situation of officials must be deemed to be those of the institution by which they are employed; each Community has a separate legal personality, since the Treaties have not made the Councils into a common institution, and the existence of a single Secretariat does not mean that the Councils are a single legal entity. Since the applicant is an official of the Councils of the EEC and the EAEC, his application must be considered as being directed against those two Councils by which he is employed.

Even when the application is thus amended, the question whether it is admissible is harder to answer.

First of all the defendants argue against the conclusions of the application by saying that they contradict those contained in Application 28/64. In that application Mr Müller asked to be classified in a grade of career bracket A4-A5, whereas in this application he assumes that his duties are those of a post in career bracket B1. He refuses to consider Application 43/64 as alternative to Application 28/64 and maintains that the two cases are independent. Moreover, a step can only be granted in a particular grade and it is not possible to pass over the question of the grade in which the applicant should be classified.

It seems to me certain that the present application is indeed made as an alternative to the earlier one, contrary to what Mr Müller maintains. If the applicant had been successful in the earlier case, and if his right to be classified in A5-A4 or even in A3 had been granted as requested by him, his conclusions directed at obtaining Step 3 in Grade B1 would clearly no longer be relevant. Such is not the case, and it seems to me that the first of the defendants' objections must therefore fail.

The Councils also argue that the application was made out of time. Certainly it was started less than two months after a decision of rejection implied by the silence with which the administrative complaint of 15 July 1964 was met. But this implied decision only confirmed a legal situation which existed much earlier, and in reality the application is directed against the decisions of 28 March and 21 June 1963 which classified the applicant in Grade B1, Step 1, with effect from 1 January 1962 and which have become definitive. Even if the applicant was unable to grasp the fact that these decisions adversely affected him until the definitions of the duties and powers attaching to each basic post were adopted by the Councils and communicated to the staff on 15 October 1963, he should at least have been able to bestir himself within the time-limit of three months starting on that last date.

The question at issue here seems to me to be a difficult one. Mr Müller states that the decision of 28 March 1963 was taken on the basis of Articles 45 and 108 of the Staff Regulations. Thus it constitutes promotion to a higher grade in Category B and Mr Müller, who was still unaware of the definitions of the duties and powers attaching to each basic post, tried to obtain the most favourable grading which he was then in a position to claim. It was only from the Secretary-General's letter of 2 July 1964 that he learned that the allocation of Grade B1 was the result of being graded in accordance with Article 102 of the Staff Regulations. He was thus in a position to draw his own conclusions concerning the step, and this is what he did in his complaint of 15 July.

Nevertheless it remains true that the decision of 21 June 1963 classifying the applicant in Grade B1, Step 1, as from 1 January 1962 adversely affected him from the moment when it was taken in so far as he was given a step lower than the one which he claims and less seniority within it than he claims. Furthermore, when the Secretary-General let the applicant know of this decision, he made it clear to the applicant that he could not agree with the argument which the applicant had put forward. Thus the applicant's position was definitely settled at that time.

The definitions of duties and powers came later. Can it be said that these constituted a new material factor of a nature such as to justify the claims in Mr Müller's present application? The judgment in Application 28/64, dealing with the grade which Mr Müller could claim, holds that the decision applying the definitions of duties and powers adopted by the Councils to his case was only taken on 18 July 1964 and was only communicated to him on 8 October 1964. He concludes from this that an application concerning this grade initiated on 2 July 1964 is rendered valid by the later decision confirming the position which he impugns.

But what was this decision of 18 July 1964?

It is a collective decision which fixes the grading of the posts of a certain number of officials. Dealing with Mr Müller it reads as follows: “Description of post: Assistant Principal — Grade: B1 — career bracket B1 — date of appointment: 1.1.62”. Nowhere is any reference made to the step or to the date of seniority within that step. I am tempted by this to think that, as regards these matters, which were dealt with by the decisions taken in 1963, the decision of 18 July 1964 did not constitute any new factor and did not start time running afresh in respect of the complaint. On this view, Application 43/64 is out of time.

But if one considers the matter from the opposite viewpoint, the question arises Whether the liberal solution adopted by the judgment in Case 28/64 can be extended to cover the present case. The administrative position of a servant is his position as a whole. It is defined not only by a grade but by a step, and the decision settling his grade and his career bracket cannot be considered separately from the step which he has in the grade allotted to him. It is for this reason that I shall in fact suggest to you — not without some hesitation — that the objection of inadmissibility based on lapse of time put forward by the defendants should fail.

If you were not to accept this view of the matter another question would arise, although Mr Müller does not directly refer to it for propounding the admissibility of the present case. This is the question whether the judgment in Case 70/63 (Collotti), given on 7 July 1964 and thus eight days before the complaint submitted to the Secretary-General, would not constitute a factor of a nature such as to start time to run afresh in any event. However my answer to this question is that clearly it would not. A judgment only has effect as between the parties to the action and cannot therefore constitute a new factor causing time to start running afresh to the benefit of other officials who are in an analogous position. These other officials ought, where applicable, to have lodged their claims within due time, just like the person benefiting from the judgment in the case itself. A favourable judgment can only have been given because the application must first have been deemed admissible as having been made within the prescribed time-limit. The contrary solution would make it possible for decisions of a settled and definitive nature to be open to challenge indefinitely, which would undermine the stability of administrative positions, stability being one of the conditions for good administration. For this reason alone such a solution must to my mind be rejected.

In the light of the above observations I now turn to an examination of the substance of the case. Mr Richard Müller had been classified at Step 3 of Grade B7 since 1 April 1961. This corresponds to Grade B2 in the Staff Regulations. He has in fact been in Grade B1, Step 1, since 1 January 1962. This last grade is the one which, taking into account the definitions of duties and powers, corresponds to the post of financial comptroller which he holds. This is what emerges from the judgment in Case 28/64. Mr Müller asserts that, by application of the Staff Regulations, he is entitled to Step 3 in this grade, which is the step which he had previously.

His arguments are to a large extent based on the judgment in Case 70/63 and there is no point in going over what that judgment says. He believes that it lays down a general legal rule which he describes as follows (here I quote the wording of the reply itself): “When an official, after being integrated in accordance with Article 102 of the Staff Regulations, is entitled to have his administrative position regularized with regard to Annex I to the Staff Regulations in combination with the definitions of the duties and powers attaching to each basic post (cf. judgment in Joined Cases 20 and 21/63), there shall be granted to him the same step with the same seniority within that step in the new grade which corresponds to his revalued post as the step and seniority which he had in the former grade during the first stage of his integration carried out under Articles 102 and 103 of the Staff Regulations”.

If this is in fact the rule which was applied in order to deal with the situation giving rise to Application 70/63, the question has to be asked whether it has such a general scope as Mr Müller wishes to accord it and whether he can make use of it for his own situation. For my part I strongly doubt it.

In spite of the very general terms in which this judgment is drawn up, the first thing that no-one should lose sight of is that it deals with a servant in the language department. There is no need to remind you of the very special position which this department has always had from the point of view of the Staff Regulations, and the difficulties which this has caused. But the main thing to consider is the meaning to be given to the idea of “revaluation of the post” upon which the judgment is based “because of a more favourable evaluation of the duties”. This supposes therefore that these duties could have been and were precisely evaluated before the Staff Regulations of 1962. This was indeed so for the head of the language department whose post was defined and classified in the former Staff Regulations of the ECSC. It was also the case in a general way for established servants already placed under a system of Regulations for staff which defined the posts and gave a precise classification to each. In cases such as these, a real comparison can be made between the position in the former and new Staff Regulations and this can indeed show that a more favourable assessment has been made of the same duties and thus that the post has been revalued.

But I do not think that this reasoning can be applied with the same certainty in cases, such as Mr Richard Müller's, where servants were previously employed on a contractual basis and where the main object of the contract was to fix their remuneration. So far as their posts were concerned, it would only be possible to give them a grade and a step by means of analogy with the system in force in the ECSC, with all the lack of precision which recourse to such a method brings with it. It is true that the Staff Regulations of 1962 result in a definite classification of the posts which had been held in this way, but it is often difficult to see if this classification revalues any particular post.

It cannot be ignored, finally, that this method of approach may lead to consequences which are hard to justify. It favours officials who have been appointed to a “revalued” post by means of reclassification compared with those who have been directly recruited in a higher post or who have reached it by means of promotion before the entry into force of the Staff Regulations. Let us suppose, for example, that two officials held a post in Grade B7 (now B2), Step 3, in 1961 and that one of them was promoted to Grade B6 (now B1). He would only have been given the first step in his new grade. However, if the Staff Regulations take the former post as corresponding to Grade B1, the other official, who will be reclassified, will immediately arrive at Step 3, even though his colleague, considered of greater merit, was promoted before him. As part of its defence, the administration has produced evidence to the effect that three of the applicant's colleagues were promoted from Grade B7 to Grade B6 before him and that Mr Müller would get favourable treatment compared with them if he carried over without any change into his new grade the step which he had obtained in the former one. Anomalies of this sort can be found frequently when there are several posts in the same grade within an institution, which was not so in Case 70/63. Here the best thing that I can do is to refer you to the examples given in the rejoinder and to which reference was made during the oral procedure.

For all these reasons I think that it would be neither legally correct nor desirable to extend the solution given in your judgment in Case 70/63 beyond the very precise situation which gave rise to it. At all events I do not think that it should be applied to the case of Richard Müller.

The applicant also bases his claim on Article 103 of the Staff Regulations. Since the Secretary-General of the Councils admitted that the post held by him before the entry into force of the Staff Regulations fell within career bracket B1 according to the definition of duties and powers, he was entitled to be classed in this grade as from 1 January 1962. However, by virtue of Article 103, he should also, so he alleges, have been put in Step 3 of this grade which was the same as the step that he had held in Grade B2 in which he had first been integrated. He also claims the same seniority in this step (as from 1 April 1961) for the same reasons. Replying to one of the defendants' objections, he reminds the Court that, according to the judgment in the Maudet case, the integration procedure can be divided into two stages, the first of which does no more than apply Article 102 whilst the second results in the reclassification of the servant in accordance with Annex I. He states that it is during this second stage that Article 103 comes into operation, and the provisions contained therein concerning the preservation of seniority in a step are to be applied not only to the measures taken on establishment, but also for reclassification by virtue of the definitions of duties and powers.

This argument is open to question. Article 102 deals only with establishment in the grade and step of the salary scale corresponding to those which the official had expressly or by implication obtained before coming under the Staff Regulations. This leads to the view that, when the following Article says that an official shall keep his seniority acquired ‘in the grade and step which have been granted to him’, it means the grade and step mentioned in Article 102, that is, prior to any possible reclassification. This solution does not seem to me to go against the judgment in the Maudet case, which in any event deals only with the question of the grade, and not the step, which is the only one at issue here.

The applicant's argument in this case, as I have explained them to you in this opinion, do not seem to me to be wholly persuasive, but I must add that the argument put forward by the defendant institution is not without its weaknesses. Although, says the institution, the grading in B1 of the post of financial comptroller, held by Mr Müller since 1 November 1961, in accordance with the Staff Regulations could have constituted a revaluation of the post, this does not exclude the possibility that the revalued post could be filled by means of promotion. In fact the appointing authority must be in a position to consider whether the former holder of the post can continue to perform the same duties or whether those duties must be given to other more qualified persons. In the first of these two cases, the former holder must be put in the higher grade but his grading is the result of promotion within the meaning of Article 45 of the Staff Regulations. Therefore the seniority in the new grade and step must be calculated along the lines laid down in Article 46, which is what was done here. As the case-law of your Court stands at present, this reasoning cannot be accepted, although I personally do not see anything very wrong with it.

However it is enough for me to avoid any application of the judgment in the Collotti case — as I think we must here — and also the interpretation which the applicant gives to Article 103 of the Staff Regulations, in arriving at my opinion:

—that Mr Richard Müller's Application 43/64 be dismissed

—and that both parties should bear their own costs in accordance with the provisions laid down in Article 70 of the Rules of Procedure.

*

(1) Translated from the French.