delivered on 13 March 1986 (*1)

Mr President,

Members of the Court,

1.The applicants, who are all Commission officials, are of the opinion that the classification of their posts in Category D does not correspond to the work which they actually carry out; that work, they say, falls under Category C, according to the Table showing Basic Posts as provided for in Article 5 of the Staff Regulations, published in the Commission's Administrative Notices No 373 of 9 July 1982.

They therefore submitted a request to the Commission under Article 90 (1) of the Staff Regulations, asking it

‘to reclassify the posts occupied by them at the Commission’,

on the ground that

‘the instruments appointing [them], which classified [them] in Category D, are at variance with the table of basic posts at the Commission’

of 9 July 1982 , by which table the Commission was bound.

They stated that whereas, according to the table, Category D posts involved

‘manual work or tasks necessitating primary-level education, where appropriate supplemented by technical training’,

they were in fact carrying out tasks

‘of a technical nature necessitating a professional background and qualifications supported in principle by a certificate of occupational proficiency or acquired through practical experience’.

They pointed out that, according to the table, tasks of that description were carried out by officials in Category C.

The appointing authority expressly rejected that claim whereupon the applicants submitted a ‘complaint’ repeating both the subject-matter of their request — their reclassification in Category C — and its basis, that is to say the conflict between the instrument appointing them, by which they were classified in Category D, and the table published on 9 July 1982; they concluded that

‘they should therefore be classified in Category C, not in Category D’.

2.Before examining the objection of inadmissibility raised by the Commission in its defence, I must first define the subject-matter of this application. That is made necessary by the applicants' reply, in which they state that the action is in fact intended to obtain a declaration by the Court that ‘they are entitled, without being subject to disciplinary measures, to refuse to carry out duties which do not correspond to their grade’.

That is to say, the applicants' objective is no longer to challenge the classification of their posts in Category D but rather to obtain recognition of their right to refuse to carry out tasks which in their view are properly those of Category C officials.

Without going into the merits of that claim, which the Commission submits should be rejected, I need merely point out that it has the result of modifying or at least adding to the original subject-matter of the application; that modification is not justified by any new element of fact or of law and is therefore contrary to Article 38 (1) (c) of the Rules of Procedure and Article 91 (2) of the Staff Regulations.

The Court has recently reiterated that, since the object of Article 91 is to encourage an amicable settlement of differences it is essential that the appointing authority ‘be in a position to know the complaints or requests of the person concerned’. The Court therefore concluded that it was not the purpose of that article

‘to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject-matter of the complaint’

(judgment of 23 January 1986 in Case 173/84 Rasmussen v Commission at paragraph 12; my emphasis)

The new claim put forward in the reply must therefore be declared inadmissible, since the original subject-matter of the proceedings was, as the wording of the ‘request’ and the ‘complaint’ shows, the reclassification in a higher category of the posts occupied by the applicants.

3.The Commission submits that the application as redefined above is out of time.

In support of its objection it points out that inasmuch as it seeks their reclassification the applicants' action is necessarily directed against a decision of classification, in the event the decision attendant upon their appointment. Far from seeking to obtain a decision on the part of the Commission, in accordance with Article 90 (1) of the Staff Regulations, their ‘request’ in fact sought to challenge an existing decision and must therefore be regarded as a ‘complaint’. None of the complaints submitted by the applicants was submitted within the period of three months provided for in Article 90 (2) after their appointment as probationary officials.

Furthermore, neither the subsequent publication, on 9 July 1982, of the table of basic posts nor the promotion of some of the applicants to a higher grade could have the effect of reopening the limitation period laid down in the Staff Regulations, since the promotions merely confirmed those applicants' classification in Category D and the publication of the table did no more than formally set out the nature of the work carried out by them since their recruitment.

The application was out of time in any event.

The applicants argue that the applications of 10 of them are admissible, since their ‘request’ was submitted within three months of their establishment. As for the others, they acted within a reasonable time having regard to the period of observation which was necessary for them to ascertain that, as is alleged, their actual tasks did not correspond to the description of their post. Moreover, the applicants' level of education explains why several months elapsed before some of them filed their applications.

4.In my view the objection of inadmissibility raised by the Commission must be upheld.

As I have already pointed out, the ‘requests’ submitted by the applicants were expressly intended to obtain the reclassification of their posts in Category C. They clearly challenge their original classification in Category D pursuant to the instrument appointing them. It is that instrument that must be regarded as the act adversely affecting the applicants and thus the starting point of the period within which proceedings may be brought, subject to the following reservations which I do not consider relevant in this case.

In order that an administrative appeal may be regarded as a complaint rather than as a request, it is not enough merely that there exists an act adversely affecting the person concerned. In that regard, however, the Court takes a strict view of the matter. It has consistently held that although an official is entitled to ask the appointing authority to take a decision relating to him, that does not allow him to

‘set aside the time-limits laid down in Articles 90 and 91 for the lodging of a complaint and an appeal by indirectly calling in question by means of a request a previous decision which has not been challenged within the period prescribed’

That is to say,

‘only the existence of new substantial facts may justify the submission of a request for a review of such a decision’ (judgment of 26 September 1985 in Case 231/84 Valentini v Commission at paragraph 14).

When a Community official brings proceedings on the basis of the principle laid down in Articles 5 and 7 of the Staff Regulations that his duties must correspond to his grade, he may argue that a discrepancy became apparent after the decision appointing him. The Court has thus held that it is ‘in order’ for an employee whose duties change as a result of administrative reorganization, for example, to ask the institution

‘to review his position in the administration in view of the changes which [have] taken place in the structure of the department to which he [belongs]’

(Case 28/72 Tontodonati v Commission [1973] ECR 779 at paragraph 4).

Similarly, the appearance, after the original decision, of new criteria governing classification laid down by the institution, may constitute a new element justifying such reexamination. In that regard the Court has held that although, in principle,

‘an official cannot be permitted to challenge the conditions of his initial recruitment once that recruitment has become definitive’,

he may nevertheless rely on a decision of the appointing authority altering the classification criteria which existed at the time of his recruitment but came to his knowledge much later in order to make a request for the review of his classification (Case 190/82 Blomefield v Commission [1983] ECR 3981, at paragraph 10).

In both cases it is the existence of a new element which makes it possible to submit a request for the reexamination of a previous decision.

In this case there is no indication of any new element of fact. The Court was careful to be sure of that, and in reply to one of the questions that it put to them at the hearing the applicants admitted that their duties had remained the same since their recruitment. As for the table of 9 July 1982 describing basic posts, it does not constitute a new element of fact of such a kind as to provide justification for a request. The applicants have indeed relied on that document in order to establish the discrepancy between their classification under the Staff Regulations and their actual duties. However, that table, which brings up to date the table previously drawn up by the Commission, incorporates amendments made in 1981 regarding Categories A and B and certain posts in Category C ‘involving dataprocessing’. It is obvious that none of these amendments concerns the description of the applicants' posts, as set out in the table which appeared in Administrative Notices No 272 of 4 September 1973 and has not been changed since.

In my view the requests submitted by the applicants must therefore, in accordance with Article 90 (1) and (2), be redefined as complaints. Under the second indent of Article 90 (2) of the Staff Regulations a complaint must be submitted to the appointing authority within three months of the date of notification to the person concerned of an act adversely affecting him. The applicants may not, as they have tried to do, take as the starting point of that period the decision by which the appointing authority established each of them. As I have already pointed out, the very wording of the requests puts in issue their classification as a result of the instrument appointing them. In any event, the decision establishing them merely confirms the applicants' original classification in Category D, and the Court has consistently held that an act which merely confirms a previous act does not adversely affect the person concerned and therefore does not revive a right of action which has become barred by the passage of time.

Since the act adversely affecting them was the decision appointing them, it must be held that none of the 28 applicants submitted his complaint within the period laid down in the Staff Regulations. Examination of the documents before the Court shows that in the most favourable case more than seven months elapsed between the date of the decision appointing the applicant concerned and the date on which he submitted his complaint.

Even if those complaints were not time-barred, it would still be necessary to declare the application to the Court out of time. The application was filed on 18 July 1984, more than three months after the reply of the appointing authority, which was given, in the most favourable case, on 11 January 1984. Neither the ‘complaints’ submitted on 19 December 1983 or 18 January 1984 depending on the applicant concerned nor the implied decisions of rejection with which, say the applicants, they were met can reopen the period for the institution of proceedings, inasmuch as they result from the applicants' error as to the nature of the first steps taken by them, the responsibility for which cannot be laid at the door of the Commission.

It must therefore be concluded that the complaints submitted by the applicants to the appointing authority merely sought to impugn an administrative decision which was no longer open to challenge. The time-limits laid down in Articles 90 and 91 of the Staff Regulations

‘are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were laid down with a view to ensuring clarity and legal certainty’ (Case 227/83 Moussis v Commission [1984] ECR 3133 at paragraph 12).

For those reasons the application must be declared inadmissible.

5.It is purely in the interests of completeness, therefore, that I shall go on to consider the merits.

It must be recalled that this application cannot have as its objective the reassignment of the persons concerned to duties which in their view correspond more closely to the category in which they are now classified. It seeks their reclassification in a higher category on the ground that the duties which they actually carry out are appropriate to that higher category.

As Mr Advocate General Mayras put it in his Opinion in the van Reenen case,

‘the fact that an official is in a position to undertake, even for a lengthy period, duties appropriate to a post in a higher category than his own does not give him any unconditional right to be appointed to that category’,

since Article 45 (2) of the Staff Regulations

‘expressly makes access to a higher category subject to success in a competition’(Case 189/73 van Reenen v Commission [1975] ECR 445, Opinion, at p. 460).

That is why the Court has consistently held that

‘although, under Article 7 (1), an official cannot be compelled to perform duties corresponding to a grade higher than his own, except on a provisional basis, the fact that he agrees to perform them may be a factor to be borne in mind in connection with promotion, but does not give him the right to be reclassified’ (Case 189/73, cited above, at paragraph 6).

The same principle must apply a fortiori in the case of a change of category. In any event, that rule reflects the essential principle that administrative action must be kept separate from the judicial function. It is illustrated in the Morina case, where the Court held that

‘assessment of the expediency or necessity of organizing a competition lies within the exclusive domain of the appointing authority’

and, therefore, that

‘the Court cannot order a competition to be held or re-held without encroaching upon the prerogatives of the administrative authority’(Case 11/65 Morina v Parliament [1965] ECR 1017).

6.I therefore propose that the Court

(i)declare the application inadmissible;

(ii)in the alternative, declare it unfounded;

(iii)with regard to costs, apply Article 70 of the Rules of Procedure.

*1 Translated from the French.