Avis juridique important

61964J0028(01)

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Summary

IN ORDER TO DECIDE WHETHER THE FACT RELIED UPON BY THE APPLICANT IS OF SUCH A NATURE AS TO CAUSE THE REVISION TO BE OPENED WITHIN THE MEANING OF ARTICLE 41 OF THE EEC STATUTE AND ARTICLE 42 OF THE EAEC STATUTE, IT IS NECESSARY TO CONSIDER ITS RELEVANCE TO THE GROUNDS OF THE JUDGMENT RELATING TO THE QUESTION AT ISSUE.

Parties

IN CASE 28/64 ( REVISION ) RICHARD MUELLER, AN OFFICIAL OF THE SECRETARIAT - GENERAL OF THE COUNCILS OF THE EUROPEAN COMMUNITIES, REPRESENTED AND ASSISTED BY MANFRED SCHWALL, ADVOCATE OF THE KARLSRUHE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY - GOERGEN, APPLICANT, V COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY AND COUNCIL OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY HANS JUERGEN LAMBERS, LEGAL ADVISER AT THE SECRETARIAT-GENERAL OF THE COUNCILS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JACQUES LECLERC, AN OFFICIAL OF THE SECRETARIAT-GENERAL OF THE COUNCILS, 3 RUE AUGUSTE-LUMIERE, DEFENDANTS,

Subject of the case

APPLICATION FOR THE REVISION OF THE JUDGMENT DELIVERED BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ON 7 APRIL 1965 IN CASE 28/64,

Grounds

THE APPLICANT REQUESTS THE REVISION OF THE JUDGMENT DELIVERED BY THE COURT OF JUSTICE IN CASE 28/64 ON 7 APRIL 1965 . ACCORDING TO THE PROVISIONS OF ARTICLE 41 OF THE PROTOCOL ON THE STATUTE OF THE COURT ANNEXED TO THE EEC TREATY AND OF ARTICLE 42 OF THE PROTOCOL ON THE STATUTE OF THE COURT ANNEXED TO THE EAEC TREATY AND OF ARTICLE 100(1 ) OF THE RULES OF PROCEDURE, THE COURT SITTING IN THE DELIBERATION ROOM SHALL GIVE IN THE FORM OF A PRELIMINARY JUDGMENT ITS DECISION ON THE ADMISSIBILITY OF THE APPLICATION . THE APPLICATION FOR REVISION WAS LODGED WITHIN THE PRESCRIBED PERIOD AND IN PROPER FORM . UNDER THE PROVISIONS OF THE ABOVE-MENTIONED ARTICLES 41 AND 42, AN APPLICATION FOR THE REVISION OF A JUDGMENT MAY BE MADE ' ONLY ON DISCOVERY OF A FACT WHICH IS OF SUCH A NATURE AS TO BE A DECISIVE FACTOR, AND WHICH, WHEN THE JUDGMENT WAS GIVEN, WAS UNKNOWN TO THE COURT AND TO THE PARTY CLAIMING THE REVISION '.

THE APPLICANT BASES HIS APPLICATION ON THE DECISION OF THE SECRETARY-GENERAL OF THE COUNCILS TO CLASSIFY THE DUTIES OF FINANCIAL COMPTROLLER IN A POST IN CATEGORY A . THIS DECISION IS CONTAINED IN VACANCY NOTICE NO 5/67 OF 20 JANUARY 1967, NOTIFIED TO THE STAFF OF THE SECRETARIAT-GENERAL BY CIRCULAR NO 3/67 OF 23 JANUARY 1967 . IT IS APPROPRIATE TO CONSIDER WHETHER THE DECISION IS A FACT OF SUCH A NATURE AS TO BE A DECISIVE FACTOR IN RELATION TO THE ABOVE - MENTIONED JUDGMENT . THE APPLICANT EMPHASIZES THAT THE DUTIES OF A FINANCIAL COMPTROLLER ARE LAID DOWN EXCLUSIVELY BY THE LEGAL PROVISIONS IN FORCE AND THEIR DETERMINATION DOES NOT COME WITHIN THE DISCRETIONARY ORGANIZATIONAL JURISDICTION OF THE ADMINISTRATION . IN ADDITION HE POINTS OUT THAT HIS DUTIES AND POWERS HAVE NOT BEEN CHANGED SINCE THE STAFF REGULATIONS ENTERED INTO FORCE . IT IS ALLEGED, THEREFORE, THAT THE DECISION ON CLASSIFICATION ADOPTED IN VACANCY NOTICE NO 5/67 IS EVIDENCE THAT THE DUTIES OF FINANCIAL COMPTROLLER PERFORMED BY THE APPLICANT CONTINUOUSLY UNTIL NOW COMPRISE ADMINISTRATION AND ADVISORY DUTIES; FAR FROM AMOUNTING TO A REVALUATION OF THE POST, THIS DECISION DETERMINES DEFINITIVELY THAT THE POST OF FINANCIAL COMPTROLLER FALLS WITHIN CATEGORY A . IN ORDER TO DETERMINE WHETHER THIS ARGUMENT IS CORRECT AND THEREFORE TO DECIDE WHETHER THE FACT RELIED UPON BY THE APPLICANT IS OF SUCH A NATURE AS TO CAUSE THE REVISION TO BE OPENED WITHIN THE MEANING OF THE ABOVE-MENTIONED ARTICLES 41 AND 42, IT IS NECESSARY TO CONSIDER ITS RELEVANCE TO THE GROUNDS OF THE JUDGMENT IN CASE 28/64 RELATING TO THE QUESTION AT ISSUE . THE JUDGMENT IN CASE 28/64 FOUND IN THE FIRST PLACE THAT THE DUTIES OF A FINANCIAL COMPTROLLER ARE GIVEN IN THE TABLE OF THE DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH POST IN BOTH CATEGORY A AND CATEGORY B . AFTER EXAMINING THE NATURE OF THE DUTIES PERFORMED BY THE APPLICANT AND THE LEGAL PROVISIONS LAYING DOWN THOSE DUTIES, NAMELY THE FINANCIAL REGULATION OF THE EUROPEAN COMMUNITIES, THE JUDGMENT IN QUESTION ACKNOWLEDGED THAT THEY DID NOT APPEAR TO CORRESPOND NECESSARILY TO THE ADMINISTRATIVE AND ADVISORY DUTIES DEFINED IN THE SECOND SUB-PARAGRAPH OF ARTICLE 5(1 ) OF THE STAFF REGULATIONS . THE JUDGMENT THEREFORE CONCLUDED THAT IN CLASSIFYING THE APPLICANT IN GRADE B1 THE APPOINTING AUTHORITY DID NOT DISREGARD THE ABOVE-MENTIONED ARTICLE OR ANNEX 1 TO THE STAFF REGULATIONS . MOREOVER THE JUDGMENT IN CASE 28/64 DID NOT PRECLUDE THE POSSIBILITY THAT THE DUTIES OF A FINANCIAL COMPTROLLER MIGHT IN THE FUTURE FALL WITHIN A HIGHER CATEGORY THAN THAT IN WHICH THEY WERE CLASSIFIED AT THAT TIME, IF AN OBJECTIVE REVIEW BY THE APPOINTING AUTHORITY OF THE NEED TO ENSURE THE PROPER FUNCTIONING OF THE SERVICE WERE TO MAKE SUCH A RECLASSIFICATION APPEAR TO BE NECESSARY OR EXPEDIENT . THE DECISION OF THE SECRETARY-GENERAL IN VACANCY NOTICE NO 5/67 TO CLASSIFY THE DUTIES OF FINANCIAL COMPTROLLER IN CATEGORY A MUST BE REGARDED AS A NEW CLASSIFICATION OF THESE DUTIES WHICH ONLY APPLIES FOR THE FUTURE . THE SAID DECISION CANNOT BE REGARDED AS A FACT WHICH IS OF SUCH A NATURE AS TO HAVE A DECISIVE EFFECT ON THE JUDGMENT GIVEN IN CASE 28/64 . THE APPLICATION FOR REVISION OF THE JUDGMENT IS THEREFORE INADMISSIBLE .

Decision on costs

THE APPLICANT HAS FAILED IN HIS APPLICATION AND UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, IN ACCORDANCE WITH ARTICLE 70 OF THE SAID RULES, IN APPLICATIONS BROUGHT BY OFFICIALS AND SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( SECOND CHAMBER ) HEREBY : 1 . DISMISSES THE APPLICATION FOR REVISION AS INADMISSIBLE; 2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE ACTION, WITH THE EXCEPTION OF THOSE INCURRED BY THE DEFENDANTS .