OPINION OF MR ADVOCATE-GENERAL LAGRANGE

DELIVERED ON 21 JANUARY 1964 (*1)

Mr President,

Members of the Court,

Mr Maudet, a special-category administrative officer at the French Treasury, entered the service of the European Economic Community under the so-called system of ‘Brussels’ contracts (with which you are acquainted) following a letter of appointment of 24 November 1958. This document, signed by the Director-General of Administration, indicated that during its meeting of 19 November 1958 the Commission had appointed the applicant ‘to perform the duties of head of the Premises and Equipment Division at the Directorate-General of Administration’.

By letter of 25 February 1959 the applicant was informed that the Commission had ‘accorded him Grade A4, Step 2 (at a basic salary of 26750 BF)’. A decision of 4 May 1960 accorded him the fifth step of the same grade with effect from 1 March 1960 and on 20 December 1960 he was accorded an additional step, still at Grade A4, with effect from 1 December 1960. This was the situation on 1 January 1962 on the entry into force of the Staff Regulations. A decision of 14 December 1962 applying Article 102 of the Staff Regulations established the applicant in Grade A4, Step 6, of the new table, and declared that he was ‘assigned to a post in the Directorate-General of Administration, in the Premises, Equipment and Conferences Division of the Internal Affairs Directorate’. The decision also stated that ‘this appointment shall take effect from 1 January 1962’.

This decision is contested by Application 20/63 in that it established the applicant in Grade A4 and not Grade A3 to which he claims he was entitled. A second Application, 21/63, contests the decision of the President of the Commission rejecting the complaint made by the applicant against the decision establishing him in Grade A4. The defendant contends that, as the subject-matter of both actions is the same, the second application is inadmissible.

I shall deal with the question of admissibility after considering the first application. In fact, contrary to the views apparently held by the parties, it is not absolutely certain a priori that the subject of both applications is the same; in my opinion this depends in part on the result of the first application, which I shall now consider.

I — Application 20/61

You are aware of the arguments of each party: the applicant maintains that, as he has performed the duties of head of the Premises, Equipment and Conferences Division since his appointment by the Commission, he is entitled to establishment in Grade A3, on the ground that in Annex I to the Staff Regulations the ‘basic post’ of head of division corresponds to this career bracket. On the other hand, the Commission considers that under Article 102 the applicant could only be established in the grade ‘expressly or impliedly accorded him before these Staff Regulations were applied to him’, namely Grade A4.

A — General considerations

The action, therefore, essentially concerns the interpretation of the provisions of Article 102 of the Staff Regulations and in particular the meaning and scope of the phrases ‘grade and step expressly or impliedly accorded’ and ‘subject to any decisions which may be taken by agreement between the Councils of the European Economic Community and the European Atomic Energy Community for standardizing practice in regard to career brackets and the criteria to be used in grading’.

It can be seen at once that this provision solves only one of the two problems raised by the introduction of new Regulations for the establishment of staff who are already employed. These concern establishment itself, that is, the conditions under which the Regulations are applied to such staff, and the classification of servants in new services. Only the former is resolved by the Article, the latter being merely the subject of a reference in the Article (‘subject to any decisions …’). It is clear that in the absence of any details on this matter, a classification or final reclassification of each servant in the posts in the new table, taking into account the nature of each post and the qualifications required for it, may only be made after the introduction of the necessary preparatory measures, such as the organization of services and the definition of these duties which attach to the various categories of posts. A single operation (often carried out by a commission endowed with wide powers) may then be used ‘to fill’ the newly-organized services and to assign to each servant a post in his grade according to the requirements of the Staff Regulations and the special transitional provisions, such as those which liberate servants already employed from compliance with the requirements concerning access to new posts or promotion to a higher grade or step; therefore, establishment (if the servant is not already an established official), entry into new posts and appointment to a specific grade corresponding to the nature of the post held are made by a single act which finally regulates the position of the servant concerned. This is the standard type of establishment procedure.

However, a single operation of this type was not provided for, or at any rate was not imposed by, the transitional provisions; moreover, in respect of servants already employed as such, these provisions contain no specific exceptions to the normal conditions of recruitment and advancement provided for in the Staff Regulations in order to allow classification in the light of the nature of the duties previously performed. The sole purpose of Article 102 is to maintain situations existing before the entry into force of the Regulations and it therefore provides for a servant to be established in the grade and at the step of the new system ‘corresponding to the grade and step expressly or impliedly accorded him before these Staff Regulations were applied to him’; the ‘subject to …’ which follows, and with which I am about to deal, only refers to a possibility and is certainly not intended to ‘block’ the establishment machinery provided for in the first part of the sentence. It is clear that this machinery implies a reference to the past and not to the future: establishment takes place in the grade accorded to the servant concerned before the Staff Regulations were applied to him and not in the grade which might be accorded by virtue of those Regulations. This being so, unless it waits (as did the Court of Justice) for what I have called the ‘preliminary measures’ to be adopted and carried out before allowing its servants to be governed by the Staff Regulations (which allow establishment and possible reclassification under the Regulations to be the subject of a single measure) the institution, if it prefers to take the necessary decisions concerning its servants immediately, may only establish them in the first instance according to Article 102. This was the procedure followed by the Commission. It is clear that on 14 December 1962 the ‘preparatory measures’ had not been taken. In particular, the ‘job description’ referred to in Article 5 (4) and vital to either classification or reclassification was only drawn up on 29 July 1963.

B — On the words ‘expressly or impliedly’

I shall now consider the meaning of the phrase ‘expressly or impliedly accorded him’. The first obvious interpretation — which has been followed by the Commision in this case — maintains that the grade and step ‘expressly accorded’ are those expressly allocated by the Commission to a servant during the period before the entry into force of the Staff Regulations; ‘implied’ acquisition refers to cases in which no express allocation of a particular grade and step has been made: it would therefore be necessary to discover which grade and step of the ECSC table (the only one in existence at the time) correspond to the position held by the servant, taking into account both the salary paid and the duties performed. In this case, as we know, a particular grade, A4, was expressly accorded to the servant concerned.

A second interpretation, which I believe to be that of the administration of the Court of Justice, considers that only established officials of the ECSC may hold a grade and step ‘expressly accorded’ since they alone were governed by Staff Regulations which include formal classification in grades and steps. It is only be reference to the rules of the ECSC Staff Regulations which their administration wished to extend that servants of the Communities in Brussels have been able to benefit from the regulations governing officials of the ECSC. However, these regulations were applied by analogy or by reference, which left intact the contractual nature of the relationship between the servant and the institution: this is one type of situation which Article 102 intended to cover by the use of the adverb ‘impliedly’. One might then wonder why the adverb ‘expressly’ was also used since, unless he was transferred or arrived by some other means from the ECSC, it was impossible for any servant at Brussels to be an established official: the answer to this question lies in the absolute necessity to resolve the problem raised by the existence of common institutions bringing into line the wording of the two Staff Regulations and in this case to make the wording of Annex X to the Staff Regulations of the ECSC coincide with Article 102 of the Regulations governing the two new Communities. That is the second interpretation.

It is clear that the servants recruited by the Commission before the entry into force of the Staff Regulations were all contractual servants, even those holding so-called ‘Brussels’ contracts. This has been confirmed by the Court on many occasions. It follows that the Staff Regulations of established officials of the ECSC never applied fully to such servants, and legally could never have done so, whatever references express or otherwise had been made in their contracts to certain of the ECSC Staff Regulations. What is one to make, therefore, of an express reference to a specific grade and step (in this case Grade A4, Step 2, followed by the fifth step and then by an additional step) which clearly could only refer to those in the ECSC table? It might be tempting to reply that such a reference could have only one legal result, namely, to confer by analogy on the servant concerned the salary corresponding to that paid under the ECSC Staff Regulations to established officials at the grade and step concerned. In this case the total salary was given in parentheses in the letter of 25 February 1959 which indicated that, on 1 January 1962 when the new Staff Regulations came into force, the applicant, who must be regarded as having been only ‘impliedly’ accorded a specific grade and step, was entitled to classification in the new table at the grade and step carrying the salary which he had been paid.

This might lead to the classification of the servant concerned in a higher grade than that ‘impliedly’ accorded to him before the entry into force of the Staff Regulations. You are aware that there is a certain overlap of salaries between the grades with the result that the same salary may be paid at different steps of two grades. If, as was done in this case, the residence allowance is added to the ECSC salary (this allowance, paid to all servants, actually supplemented the salary and was incorporated into the basic salary under the new Staff Regulations) it is clear that on 3 December 1961 the salary received by Mr Maudet was higher than the minimum paid in Grade A3. The institution had thus to make a choice between two grades and this choice allowed the Maudet case to be settled equitably and in accordance with the Regulations.

I feel that this interpretation, although attractive, is unacceptable. It involves too great a departure from the precise wording of Article 102 and Annex X to the ECSC Staff Regulations, which directly refer to the grade and step accorded (expressly or impliedly) and not to the salary. Moreover, the results of this interpretation would not be only paradoxical but unfair to established officials of the ECSC who are governed by the same provisions and whose grades were always accorded ‘expressly’: even if on 31 December 1961 such an official had reached the higher steps of his grade he could not claim establishment in a higher grade on the ground that the salary paid in its lower steps was less than he was already receiving. It is inconceivable that the right to establishment of officials governed by the ECSC Staff Regulations should be less advantageous than that of mere contractual servants of the new Communities.

In my opinion Article 102 was intended to regularize the situation existing before the entry into force of the Staff Regulations, which resulted from the Commission's frequent practice of applying by analogy the provisions of these ECSC Regulations and in particular of according to its servants those grades and steps which appeared in the ECSC table. It does not matter whether we regard such awards of grades, even where they were explicit, as having been made only ‘impliedly’ or on the other hand ‘expressly’: the question in every case is to find which grade or step was actually accorded. In fact, as, before the entry into force of the Staff Regulations, the Commission did not simply determine grades by reference to the ECSC Staff Regulations, but also accorded its servants higher grades as it would in cases of promotion, this interpretation is even more acceptable. Since time was passing and the promised Staff Regulations did not appear this action was quite reasonable: it was natural that the Commission by analogy should apply the ECSC Staff Regulations, including the provisions concerning advancement, more and more often. Although the President of the Commission considered it ‘regrettable’ it is a fact that Grade A3 had not been accorded to Mr Maudet by 31 December 1961.

C — On the phrase ‘subject to …’

On this interpretation of Article 102 what is meant by the phrase ‘subject to any decisions which may be taken by agreement between the Councils of the European Economic Community and the European Atomic Energy Community for standardizing practice in regard to career brackets and the criteria to be used in grading’ ? The applicant believes this to be a reference to the criteria to be used in grading laid down in Annex I to the Staff Regulations which, as regards the post of head of division, settles the question without any doubt by classifying it in Grade A3.

Such an interpretation is difficult to sustain, at least from a literal point of view. In fact, whereas the reference is to decisions which may be taken and to those taken between the Councils, Annex I is part of the Staff Regulations and its ‘application’ is entrusted to the institution competent under Article 5 to define the powers and duties attaching to each post without requiring the approval of the Councils.

The reservation in Article 102 refers in fact to cases in which the ‘job descriptions’ drawn up by two institutions, or the interpretations of such descriptions, do not correspond, with the result that the same post involving identical duties performed under the same conditions is classified differently in two institutions; this is the notorious problem of standardization, already well-known in the context of the ECSC. As the lack of harmony in such cases results from the exercise of powers by two institutions it is necessary to provide for an arbitration procedure, in this case by the Councils. Although the defendant has said little on this point during both the written and oral procedures I consider this to be the meaning of the phrase in dispute. If this is so, then it is clear that the phrase ‘subject to …’ has no part in the action: this case has raised no problem of standardizing practice between institutions, requiring a decision by the Council.

The fact remains however — and it is an argument in favour of the application — that in contrast to the first part of the text Article 102 is here referring to classification in the grades of the Staff Regulations which correspond to the character of the new posts. It is clear that if such considerations are to be taken into account in a case, however exceptional, in which it appears necessary to standardize the definition of posts, they should a fortiori be taken into account in normal cases which concern purely and simply the application of Annex I and the ‘job description’ drawn up by the institution under Article 5 (4).

I consider this reasoning to be correct: it is clear that establishment in the position held on 1 January 1962 does not exclude a possible reclassification in the tables of the new Staff Regulations, whether or not measures have been taken to standardize practice between institutions. However, does it follow that the reference in the final part of Article 102 to a particular case of reclassification has established a legal link of interdependence between establishment and reclassification? This question is not resolved by the wording of the provision. I consider that, in the absence of any machinery especially provided for this purpose, the two procedures are separate and that, in the absence of any transitional provisions in Title IX expressly departing from the ordinary rules of the Staff Regulations, the classification or reclassification of established servants in the new tables may only be made according to the usual rules and, where no express provision exists to the contrary, without retroactive effect.

For this reason, the contested decision which established Mr Maudet in Grade A4 which he had already been accorded (whether expressly or impliedly does not matter), without taking into account the possibility of later reclassification, is legal.

II — Application 21/63

I shall now consider Application 21/63 which, in my opinion, only partly duplicates the first application. The main object of this application is to request the review of the establishment decision by means of an application to the President of the Commission. In his conclusions, however, the applicant makes an alternative request in the following terms:

‘On these grounds, considering that I have suffered non-material damage and financial loss, and exercising the power available under Article 90 of the Staff Regulations, I request that the establishment decisions in my favour be reviewed, or completed by a decision to promote me in order that I may be accorded Grade A3 as from 1 January 1962’.

Thus, by requesting alternatively that if the decision is not ‘reviewed’ it should be ‘completed’ by a decision to ‘promote’ him, the applicant himself drew a distinction between establishment and a classification or later reclassification which takes into account the nature of the post. If you adopt my reasoning there is no doubt that you will not accept that such a measure could have retroactive effect to 1 January 1962, but the applicant has nevertheless requested that this decision be made. Considered in this light, the subject of the second application is different from the first, as the President of the Commission recognized by implication in his reply by noting the ‘essential difference’ between the two problems.

Here is his reply:

‘The problem of establishment in a particular grade and step is essentially different from the problem of correspondence between that grade and the duties actually performed’.

And, after a reference to ‘the importance of the tasks’ entrusted to the applicant and the ‘excellent manner’ in which he carried them out, the letter finishes in the following way:

‘I have therefore instructed the Directorate-General of Administration to find a solution as soon as possible to this situation, which, like you, I regard as regrettable.’

What are the legal consequences of this reply? It may be regarded merely as a ‘delaying reply’ not involving any decision, in which case Application 21/63 must be regarded as an application against the implied decision rejecting the complaint, provision for which is made in the second subparagraph of Article 91 (2); the time-limits prescribed for this type of action have been observed. It might, however, — and I prefer this view which appears to correspond more to reality — be regarded as an express decision refusing, at least in the present circumstances, to grant the promotion requested.

It is clear that Mr Maudet could have no right to promotion, even by way of reclassification, but the administration should have given legal grounds for its refusal. This is, in fact, a question of law which raises extremely delicate problems, echoes of which were heard in the oral procedure: were there posts available for which budgetary provision had been made? If the answer is yes (and I am told that such posts did exist although not in sufficient number to permit the reclassification of all officials entitled thereto), to what extent, if at all, did the institution have a discretionary power to distribute between different departments posts in a single grade which correspond to a single career bracket? To what extent, if at all, may the institution limit the field of promotion to a vacant post by imposing particular conditions? Where several candidates are eligible for promotion, have those expecting reclassification priority over the others? More generally, there is the problem of the respective powers and duties of the institution, which recommends, and the budgetary authority which determines, the number of posts in each grade, a problem which is necessarily affected by the reclassification of employees.

Clearly the Court is unable to settle all these questions in this action although some of them were raised during the oral procedure. It would have required some legal statement of reasons for the decision forming the subject of the action, however briefly formulated, to bring these questions into the proceedings, but this was lacking in the reply given on 8 March 1963. Of course the view of the Council on these questions is indispensable and could easily have been obtained by applying the second paragraph of Article 21 of the EEC Protocol on the Statute of the Court of Justice.

I therefore propose that you should annul, on the ground that insufficient reasons were given, only the decision contested in Application 21/63 to the extent that it rejected the request made by Mr Maudet for reclassification by means of promotion.

I am therefore of the opinion that:

—both Application 20/63 and the remainder of the conclusions of Application 21/63 should be dismissed;

—the costs of Application 21/63 should be borne by the Commission.

* * *

(1) Translated from the French.