OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 12 MAY 1971 (*1)

Mr President,

Members of the Court,

As you know, the applicant in the action on which I am today giving my opinion originally worked for the Euratom Commission. From 1 February 1964 he was posted to the joint Legal Department of the executives of the Communities in the ‘Euratom’ section in Grade A 5. With effect from 1 January 1965 he was promoted to Principle Administrator in Grade A4. After the formation of a single Commission in 1967 the Legal Department was restructured. However the applicant remained in the ‘Euratom and Research’ Group which, at that time consisted of one A2 official (the head of the group) one A3 official and two A4 officials and which was responsible for questions of the application of the Euratom Treaty, of technological development and of research in the sphere of the European Coal and Steel Treaty. Together with another colleague in Grade A4 the applicant was particularly concerned with the question of nuclear research, with the circulation of the knowledge acquired and with matters concerning patents and research agreements within the scope of the European Coal and Steel Treaty. In addition he had responsibility for problems of civil liability in the sphere of nuclear matters.

By a decision of 24 July 1968 the colleague of the applicant was promoted to Grade A3 with effect from 1 July 1968 without there being any immediate alteration in the matters for which he was responsible. In the course of 1969, to be exact from 25 April 1969, this official received leave on personal grounds by a decision of the appointing authority which was originally meant to finish on 24 May 1970 but which however later was regularly extended and, in all, lasted until December 1970. During this time the composition of the ‘Euratom and Research’ group in the Legal Department of the Commission did not alter (only with effect from 15 January 1971 was another A6 official posted to it). This meant that during the absence of his colleague on leave, the applicant was essentially alone responsible for the sphere of work which had originally been assigned to him and to his colleague jointly.

In view of this and of the abovementioned promotion of his colleague (wherein he saw an upgrading of the post), the applicant came to the view that he had temporarily been given responsibility for that ‘upgraded’ post and that he therefore had a claim under Article 7 (2) of the Staff Regulations. Accordingly on 3 October 1969 he applied for payment of a differential allowance ‘equal to the difference between the remuneration carried by his substantive grade and step and the remuneration he would receive in respect of the step at which he would be classified in the starting grade if he were appointed to the career bracket of his temporary posting’. However the application was unsuccessful. The applicant also achieved no success in his action before the court.

Taking the view that he was filling the higher post of his colleague on leave on a temporary basis and in view of the fact that the leave had lasted longer than the period of one year provided in Article 7 (2), on 16 July 1970 the applicant made a formal complaint to the appointing authority. Setting out the known facts, he argued that it was incompatible with Article 7 of the Staff Regulations that the temporary posting should last longer than one year. The Commission should therefore remedy the situation and draw the necessary conclusions. Since the career brackets and grades must correspond, this had to be done by altering the plaintiff's career bracket, that is, by promoting the applicant to Grade A3 with effect from 24 April 1970. The applicant did not receive an answer within the two months' period laid down in Article 91 of the Staff Regulations. His application was only expressly rejected by a letter from the President of the Commission of 29 September 1970 by reference to the fact that the responsibilities which the applicant had undertaken since his colleague had been on leave were hot linked to a post in a higher career bracket.

For these reasons on 19 November 1970 the applicant brought the present action in which he seeks:

The annulment of the decision of the Commission rejecting the applicant's complaint of 16 July 1970;

a ruling that the Commission is under an obligation to pay compensation for non-material and material damage which was caused to the applicant by an administrative situation in breach of the Staff Regulations and thus that, with effect from 25 April 1970 the applicant must be classified in Grade A3 or that financial compensation in a sum to be determined by the Court of Justice must be paid to him.

The Commission believes that these claims must also be rejected as unfounded.

I snail now go on to examine what is to be made of the dispute which I have described. I must first mention that after the applicant's colleague had returned from leave and after the issue of the vacancy notice for his A3 post in October 1970, he did not return to his earlier sphere of work but, with effect from 1 January 1970, was posted to the ‘Competition’ group in the legal department.

First, with regard to the formalities, it must straight away be stated that this is of real importance according to the decided cases. According to the decided cases in fact, both with regard to claims for compensatory payments for the temporary occupation of another post in accordance with Article 7 (2) of the Staff Regulations and with regard to claims for regrading, the actual performance of particular duties is in no way sufficient but it must be established that they were assigned to the official by the competent appointing authority. In this respect I rely on the judgment in Case 102/63 ([1964] ECR 691) and the judgment in Case 35/69 ([1970] ECR 609). We must therefore first of all examine this aspect with regard to the applicant. If only an express measure of the appointing authority could be considered, the answer would be short and simple: there is apparently no such measure and therefore the applicant's claim must be rejected for failure to fulfil a formal requirement. However we should further ask whether an implied posting to higher duties by the appointing authorities may be spoken of (assuming that this is sufficient to give rise to a claim under the Staff Regulations for a corresponding regrading). It must then be considered whether, after the departure of his colleague his duties necessarily devolved on the plaintiff as the appropriate replacement and that therefore Article 26 of the provisional Rules of Procedure of the Commission was applicable. That article provides: ‘Save as otherwise decided by the Commission, where any senior official is prevented from exercising his functions, his place shall be taken by the longest serving subordinate official present and, in the event of equal length of service, by the official who is the senior by age in the highest category and grade’. Closer examination revealed that these conclusions can hardly be drawn. The abovementioned provision is not suitable for application within a department which has a structure like the legal department of the Commission. The groups which are divided according to fields of responsibility (known as ‘équipes’) cannot in fact be described as administrative units with A2 officials in charge. Thus it is even less appropriate within such a group to speak of an A3 official being the superior of an A4 official. Moreover the Commission correctly states that, if application of the abovementioned Article 26 were at all to be considered in the context of the legal department, the whole department would have to be regarded as an administrative unit which would mean that, not the applicant, but a longer, serving A4 official would be in line for the automatic replacement.

The Commission's reaction to the applicant's complaint through official channels might also be regarded as an implicit assignment of duties. However in the end this view must also be dismissed since it is quite clear from the express reply of the President, that the Commission was not stating its position on the question of the allocation of duties within the legal department but it merely stated that the responsibilities undertaken by the applicant corresponded entirely with his grade.

It still remains to be asked whether the allocation of tasks undertaken by the Director-General of the legal department with regard to the applicant—the assignment to him of responsibility for all of the duties which were originally assigned to him and to the colleague who later went on leave—can be regarded as a measure taken by the Commission as the appointing authority, in the sense that this gives rise to consequences in the matter of classification. However that assumption may also not be made. In this connexion, the fact, emphasized by the applicant, that the Director-General of the legal department is directly subject to the President of the Commission is irrelevant. Just as with the subordination of the other Director-Generals each to one Member of the Commission, this cannot be understood to mean that the President may be held responsible for the actions of the Director-General. In addition, it must not be forgotten that the Commission, not the President, is the appointing authority competent to deal with a situation such as this. In the same way I would regard it as incorrect to refer to an implied delegation of the powers of the appointing authority to the Director-General of the legal department within the meaning of Article 2 of the Staff Regulations on the grounds that, because of the particular structure of the legal department (with which I shall deal later) it is left to the Director-General to share out the work in the sense of assigning various spheres of work. One can certainly assume that this may only be done within the confines of the hierarchy established by the Commission itself, that is, according to the classification in the salary scale determined by the Commission. The Commission has thus not simply given away the power of organization in respect of the legal department and it was certainly not its intention to allow its power of decision on grading or promotion to be preempted by internal measures by the Director-General of the legal department. An assumption to the contrary could only be made if a clear and express delegation of powers existed which, however, is not the case.

Therefore the applicant's request for a higher grading must be rejected in view of the fact that he cannot rely on the measure of the competent appointing authority assigning to him the duties exercised by him, which allegedly correspond to an A3 post.

Rather than contending myself with this formal consideration which some might perhaps challenge, I would rather go into the substantive main point of the proceedings and therefore examine whether it can in fact be said that the applicant exercised the duties attaching to an A3 post. In this respect he relies mainly on the uncontested fact that he took over the full responsibilities of his colleague who had been promoted to Grade A3, when the latter went on leave.

To see whether that is a sufficient basis for the applicant's claim we must first examine the way and means in which the posts within the legal department of the Commission are defined. Although we cannot refer to a general description of posts in this respect (which apparently does not exist) we can obtain a reliable picture from the occasionally published vacancy notices in which, as the Commission says, the progressive formation of the description of posts can be seen. The most important conclusion from this is that the posts are defined not according to the field of work involved but in a more general form, that is, in so far as the A3 and A4 posts relevant here are concerned, according to the level of responsibility which an official must be capable of assuming, according to the greater or lesser independence in dealing with legal matters, according to the latitude allowed to an official representing the Commission on committees, groups of experts or the permanent representatives, and also whether an official is asked to represent the Commission at a higher level of the hierarchy and in important cases before the Court of Justice. As the Commission says, it is in this sense that the differences in the vacancy notices are to be understood. (For A4 officials they refer to ‘carrying out the tasks of making studies and of supervision and in particular to take part in the study of all the legal problems which may arise either with regard to Treaties or in different national legislations’ while for officials in Grade A3 the notices mention that they will be called upon to ‘examine all the legal problems which may arise, either with regard to the Treaties or in the different national legislations in respect of the actions of the Commission’ and they must have had ‘practical experience of a legal nature of at least five years dealing inter alia with contentious matters’ — which is moreover a factor referred to for differentiating between career brackets in the second subparagraph of Article 5 (1) of the Staff Regulations.) In view of the explanations which we have heard on this point, it cannot be denied that this method of defining posts appears suitable for the particular characteristics of the legal department. It corresponds with the typical assignment of duties to lawyers who exercise in different fields similar advisory and defence activities which are only distinguished by the degree of responsibility. To tie posts to certain subject-matters and to make corresponding differentiations would, on the other hand, in view of the difficulties of a just evaluation of the various matters and the inevitable overlapping, appear to create enormous problems. Since alterations in the assignment of work would necessitate the complicated procedure of transfer, it would also deprive the department of much of its flexibility, which, in view of the changing burden of work and of the variable nature of the tasks, is almost indispensable and which, according to the Commission, particularly in the lower grades of officials is in fact much used. It would be difficult to reconcile such an inflexible attachment to subject-matter with the sensible aim of having available to the legal department lawyers who can be called upon to undertake a variety of tasks.

The abovementioned considerations have been primarily concerned with suitability, but, contrary to the view of the applicant, it furthermore cannot be said that the method of organization cannot be reconciled with the principles of the Staff Regulations. First, it can in no way be said that the fact that the officials in the differing grades are not placed in order of rank in the sense of an administrative hierarchy does not mean that a hierarchy of posts established was not established. As regards possible overlapping of spheres of duties, it has already been recognized in the decided cases as unavoidable and therefore in conformity with the Staff Regulations, (Case 28/64 Richard Müller v Council of the EEC and Council of the EAEC [1965] ECR 237)

Moreover the provisions of the Staff Regulations, in particular Articles 1 and 4, in fact do not require such a far-reaching individual definition of posts as the applicant thinks necessary. It is not even referred to in Article 5 (4) which deals with the description of posts. This description can perfectly well remain general in nature as long as it only contains ‘descriptions of duties capable of serving as criteria of evaluation’, ‘particulars making it possible to clarify the description of a post’ which guarantee uniform classification of all grades adjudged to be of the same level in the same career bracket.

Thus even in this way, and without assuming that the Commission's description of posts which has been kept general in nature, was made more detailed by the internal measures of the Director-General of the legal department, the observance of important provisions of the Staff Regulations is guaranteed, in particular of Articles 1 and 7 (1), of Article 4 (in so far as it is in fact concerned with the filling of vacant posts), and also of Article 7 (2) (temporary filling of higher posts). While oh the one hand it must be admitted that the latter provision obviously is more rarely applied where the description of posts is in general terms, however in view of the exceptional nature of this provision it cannot be regarded as jeopardizing to any substantial degree the basic principles of the Staff Regulations. The same must also apply to the fact that in such a situation and in cases of a simple exchange of fields of work the provisions relating to transfer may hardly be brought to bear. Notwithstanding the case-law in Reinarz v Commission of the European Communities I do not see any danger in it chiefly because transfer decisions are in any case taken under discretionary powers and because, within the scope of a compact department it is quite possible to pay sufficient attention to the legitimate wishes of officials for a change in their sphere of work. In any case in these particular circumstances I see no grounds for stating that the application of the provisions of the Staff Regulations are discriminatory in comparison with other Directorates-General whose spheres of activity allow a different form of organization. In this respect it should not only be borne in mind that other departments as well, (Statistical Office, Spokesman's Group, Directorate-General for Competition) are organized in a similar fashion to the legal department, but it is necessary also to remember the advantages that officials in such departments may gain from this very flexible structure.

Examining the applicant's claim to be classified in a higher grade in the light of these principles, it is immediately clear that it is without foundation. As I have already said, the applicant takes the view that the assignment to him of the duties in the field which he formerly covered jointly with a colleague necessarily implies giving him the duties of a post in Grade A3 as his colleague had been promoted to Grade A3 before going on leave while retaining the same responsibility. However this conclusion is only superficially convincing. Under the organization of the legal department as we know it the promotion did not in fact mean that the post of the colleague promoted was itself reassessed, and that the field in which he worked was valued more highly (which from the point of view of the applicant, would in 1968 already have given grounds for asking for a reassessment of his post which related to the same field of work). The applicant's colleague was effectively promoted to another post and was thereafter, generally speaking, ready to take over greater responsibilities. This is corroborated by the fact that the former post of the promoted officials was advertised as vacant, filled and the newly appointed official was assigned to another group within the legal department. It is possible, as the Commission's representative stated during the proceedings, that one relevant consideration with regard to the promotion was the idea of assigning the official to a different field of work (as was in fact done after his return from leave), and of only temporarily leaving him in the ‘Euratom & Research Group’ in view of his approaching leave. However this consideration is not decisive since the evaluation of the post is not made according to the area of work covered and because the promoted official therefore, even though his sphere of work remained unaltered, took over a higher post in view of the greater responsibility assigned to him. Thus the reference by the applicant to the field of work assigned to him is in itself of no value. However it is important moreover that since the applicant could not show that, after his colleague had gone on leave, the increased responsibility, that is, the discharge of duties in this field at the same level on all committees, devolved on time and since the Commission also states in this connexion that the Grade A2 official in charge of the group undoubtedly had to make greater use of his powers of leadership and supervision after the reduction in size of his team, then it must indeed be accepted that the applicant did not assume the duties attaching to a higher post and therefore has no right to have his classification connected.

Therefore not only the formal considerations stated earlier but also important material reasons justified the Commission in rejecting the request made by the applicant.

In the light of these conclusions, I can deal briefly with the further claim for payment of monetary compensation for the material and nonmaterial damage caused by the allegedly irregular administrative situation.

In this connexion it must first of all be stated that the applicant does not allege that the extent of the field of work assigned to him exceeded what was reasonable. He would indeed scarcely have been successful in this since it can scarcely be said, on taking due account of variations in the work load and the importance of the matters involved and comparing the work load of other groups in the legal department, that it was wrong to assign to him alone on a temporary basis the responsibility for the field of work in question (as we know the ‘Euratom & Research Group’ was reinforced by an A6 official as from 15 January 1971) in view of the possibility that the leader of the group took a part of the duties upon himself. The applicant mainly relies in founding his claim for damages on allegations of incorrect grading and other irregularities on the part of the Commission, in particular its failure to produce a detailed description of posts based on fields of work.

In view of everything I have said with regard to the claim for reclassification it must however be immediately apparent that the applicant cannot succeed in his claim for compensation for material damage. It cannot really be said that there was a wrong classification since, according to the organization of the legal department, the classification is not linked to work in a particular field. In addition the description of posts is not inadequate since, as we have seen, the Staff Regulations leave sufficient latitude for the scheme that is applied in the legal department. Thus there exists no wrongful act or omission on the part of the administration. In addition, one might ask, as the Commission did, in what way did the applicant suffer any financial loss or damage. This applies in particular with regard to the allegedly deficient description of posts, for it is in no way proved that a more detailed description of posts linked to fields of work would necessarily bring a higher evaluation of the field covered by the applicant.

On the other hand, it should nevertheless be mentioned that non-material damage to the applicant is possible in that the abovementioned measures of the Commission might lead to the impression that the duties of the applicant's colleague were those of Grade A3 but that the Commission wrongfully refuses to give the applicant the appropriate status although he is responsible for the same field of work. The impression may also have arisen that the applicant, who for a long time covered the field that was originally assigned to two officials, whereas his colleague was promoted and given leave on personal grounds, was the subject of deliberate discrimination, and that, perhaps on the grounds of nationality, he was the victim of a misuse of powers. In fact there could have been no question of this if the organizational measures taken by the Commission were more clearly delineated and more understandably explained. Since I doubt whether we are in sufficient possession of the facts with regard to wrongful acts or omissions of the administration and to damage (it must be accepted that in the legal department the true situation is well known) and since I also have the feeling that with such considerations, the Court could be straying too far into the realm of fairness, I think we should in the last analysis also dismiss the idea of compensation for non-material damage and I would therefore suggest that the claim in this respect be dismissed.

There remains finally the question of costs. Following the precedent set in other proceedings, it here seems not unreasonable to take account of the unclear and complex legal situation and to bear this in mind in the applicant's favour. Since the uncertainty of the legal situation is the fault of the Commission, an order might be made for part of the costs incurred by the applicant to be borne by the Commission.

To summarize: I am of the opinion that the action is admissible but that it cannot be regarded as well founded. It must therefore be dismissed in its entirety. Nonetheless it appears to me justified to order that part of the costs incurred by the applicant be borne by the Commission.

Translated from the German.

Euler, Europäisches Beamtenstatut, Vol. 1, p. 78.