Avis juridique important

61963J0020

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Summary

1.1 . WITHIN THE MEANING OF ARTICLE 102(1 ) OF THE STAFF REGULATIONS OF THE EEC, SERVANTS ARE TO BE ESTABLISHED UNDER THOSE REGULATIONS IN THE GRADE AND AT THE STEP IMPLIEDLY ACCORDED THEM BEFORE THE REGULATIONS ENTERED INTO FORCE, WITHOUT ITS BEING NECESSARY DURING THIS FIRST PHASE OF THE ESTABLISHMENT OF SERVANTS UNDER THE STAFF REGULATIONS TO TAKE INTO ACCOUNT POSSIBLE DIFFERENCES BETWEEN THIS GRADE AND THAT WHICH SHOULD CORRESPOND TO THE POST IN THE LIGHT OF THE DUTIES WHICH IT INVOLVES .

2.2 . ANY SERVANT WHO, AFTER ESTABLISHMENT UNDER THE STAFF REGULATIONS, WAS MAINTAINED IN AN ALREADY EXISTING POST WHICH, IN THE LIGHT OF THE DUTIES WHICH IT INVOLVED, SHOULD CORRESPOND UNDER THE NEW STAFF REGULATIONS TO A HIGHER GRADE THAN THAT OBTAINED IN ACCORDANCE WITH THE PROCEDURE REFERRED TO IN ARTICLE 102, IS ENTITLED TO HAVE HIS POSITION REGULARIZED ACCORDING TO THE PRINCIPLE OF THE CORRESPONDENCE BETWEEN DUTIES AND GRADES DRAWN UP IN ANNEX I .

Parties

IN JOINED CASES 20 AND 21/63 JEAN MAUDET, AN OFFICIAL OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY LOUIS ROUSSEAU, ADVOCATE, OF THE CONSEIL D' ETAT AND COUR DE CASSATION, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, ADVOCATE, OF THE COURT OF APPEAL, LUXEMBOURG, 27 AVENUE GUILLAUME, APPLICANT, V COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF : 1 . THE DECISION OF THE COMMISSION OF 14 DECEMBER 1962 IN THAT IT ESTABLISHED MR MAUDET IN GRADE A4 INSTEAD OF GRADE A3 ( CASE 20/63 ); 2 . THE DECISION OF THE PRESIDENT OF THE COMMISSION OF 8 MARCH 1963 IN THAT IT DISMISSED THE COMPLAINT MADE BY MR MAUDET AND REFUSED TO PLACE HIM IN GRADE A3 ( CASE 21/63 );

Grounds

ON ADMISSIBILITY THE TWO APPLICATIONS HAVE BEEN MADE IN DUE FORM AND WITHIN THE PRESCRIBED TIME-LIMITS . THE DEFENDANT HAS RAISED NO OBJECTION AS TO THE ADMISSIBILITY OF APPLICATION 20/63 AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION . ON THE OTHER HAND, THE DEFENDANT HAS QUESTIONED THE ADMISSIBILITY OF APPLICATION 21/63 ON THE GROUND THAT THE CONTESTED DECISION CREATED NO NEW LEGAL SITUATION FOR THE APPLICANT . IF, INDEPENDENTLY OF THE DECISION ESTABLISHING THE APPLICANT, THE COMMISSION WERE TO HAVE CLASSIFIED HIM BY MEANS OF A SEPARATE DECISION IN A GRADE OTHER THAN THAT OBTAINED BY HIM UNDER THE ESTABLISHMENT PROCEDURE, THEN THE REFUSAL OF THE COMMISSION TO UPHOLD HIS REQUEST FOR RECLASSIFICATION, WHICH IS CONTESTED IN APPLICATION 21/63, WOULD CERTAINLY BE CAPABLE OF AFFECTING HIM ADVERSELY . THIS QUESTION IS A MATTER RELATING TO THE CONSIDERATION OF THE SUBSTANCE OF THE CASE . IN THESE CIRCUMSTANCES APPLICATION 21/63 MUST ALSO BE DECLARED ADMISSIBLE . ON THE SUBSTANCE OF THE CASE HAVING REGARD BOTH TO THE OFFICE OF HEAD OF DIVISION FOR WHICH HE WAS RECRUITED BY THE COMMISSION AND THE DUTIES HE IS PERFORMING AT PRESENT, THE APPLICANT MAINTAINS THAT HE IS ENTITLED TO CLASSIFICATION IN GRADE A3 UNDER THE ESTABLISHMENT PROCEDURE REFERRED TO IN ARTICLE 102 AND PURSUANT TO ANNEX I TO THE STAFF REGULATIONS OF OFFICIALS OF THE EEC . THE DEFENDANT CONTENDS THAT ARTICLE 102 PREVENTS A CONTRACTUAL SERVANT WHO WAS EXPRESSLY ACCORDED A PARTICULAR GRADE BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS - AS IS THE CASE OF THE APPLICANT WHO IS CLASSIFIED IN GRADE A4 - FROM OBTAINING A DIFFERENT GRADE ON ESTABLISHMENT . MOREOVER, ANNEX I CAN ONLY BE APPLIED IN THE CONTEXT OF THE POSSIBLE MEASURES OF STANDARDIZATION REFERRED TO IN ARTICLE 102, AFTER THE DEFINITION OF THE DUTIES AND POWERS ATTACHING TO EACH POST HAD BEEN ADOPTED BY EACH INSTITUTION . ARTICLE 102, THE FIRST FOUR PARAGRAPHS OF WHICH HAVE BEEN WHOLLY INCORPORATED INTO ANNEX X TO THE NEW STAFF REGULATIONS OF OFFICIALS OF THE ECSC, WAS INTENDED TO PROVIDE UNIFORM CRITERIA TO GOVERN NOT ONLY SERVANTS RECRUITED ON THE BASIS OF THE SO-CALLED ' BRUSSELS ' CONTRACT BUT ALSO, IN CERTAIN CASES, ESTABLISHED AND NON-ESTABLISHED SERVANTS RECRUITED UNDER THE FORMER STAFF REGULATIONS OF THE ECSC . ONE OF THE COMMON CRITERIA ENSURES THAT EXCEPT IN THE PARTICULAR CASE REFERRED TO IN PARAGRAPH ( 2 ) OF THAT ARTICLE, ALL SERVANTS OF THE EUROPEAN COMMUNITIES ON BEING GRANTED ESTABLISHMENT MAINTAIN THE POSITIONS WHICH THEY HELD BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS; THIS IS EFFECTED BY MEANS OF A QUASI-AUTOMATIC RECLASSIFICATION WITHIN THE TABLE PROVIDED IN ARTICLE 66 OF THE STAFF REGULATIONS OF THE GRADE AND STEP EXPRESSLY OR IMPLIEDLY ACCORDED EARLIER . BEFORE THE ENTRY INTO FORCE OF THESE STAFF REGULATIONS, SERVANTS RECRUITED UNDER THE SO - CALLED ' BRUSSELS ' SCHEME HAD NO STAFF REGULATIONS TO GOVERN THEIR POSITION AND COULD ONLY OBTAIN A PARTICULAR GRADE AND STEP BY ANALOGY WITH THE SYSTEM IN FORCE IN THE ECSC . THEREFORE, IT SHOULD BE REMEMBERED THAT THE POSITION OF THESE SERVANTS IS COVERED BY THE PROVISION IN ARTICLE 102 WHICH REFERS TO THE GRADE AND STEP ' IMPLIEDLY ' ACCORDED, THAT IS, THOSE IMPLIEDLY ACCORDED BY ANALOGY WITH THE SYSTEM IN FORCE IN THE ECSC . IN FACT, IN QUESTIONS OF ESTABLISHMENT, THE ABOVE PROVISIONS ONLY REFERS TO THE GRADE AND STEP ACCORDED EARLIER . WHEN ACTING IN THE CONTEXT OF THE ESTABLISHMENT PROCEDURE REFERRED TO IN ARTICLE 102, THE ADMINISTRATION NEED NOT, DURING THIS FIRST PHASE OF THE ESTABLISHMENT OF SERVANTS UNDER THE STAFF REGULATIONS, TAKE INTO ACCOUNT POSSIBLE DIFFERENCES BETWEEN THE GRADE THUS ACCORDED TO EACH SERVANT AND THAT WHICH, UNDER ANNEX I TO THE STAFF REGULATIONS AND THE DEFINITION REFERRED TO IN THE LAST SUBPARAGRAPH OF ARTICLE 5, SHOULD CORRESPOND TO THE POST IN THE LIGHT OF THE DUTIES WHICH IT INVOLVES . THE DECISION TO ESTABLISH THE APPLICANT CANNOT, THEREFORE, BE CHALLENGED ON THE GROUND THAT IT ESTABLISHED HIM AT THE SAME GRADE AND STEP WHICH HE HAD IMPLIEDLY BEEN ACCORDED BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS . THEREFORE, APPLICATION 20/63 WHICH SEEKS THE ANNULMENT OF THE DECISION CONCERNING ESTABLISHMENT ON THIS GROUND SHOULD BE DISMISSED . HOWEVER, ANY SERVANT WHO, AFTER ESTABLISHMENT UNDER THE STAFF REGULATIONS, WAS MAINTAINED IN AN ALREADY EXISTING POST WHICH, IN THE LIGHT OF THE DUTIES WHICH IT INVOLVED, SHOULD CORRESPOND UNDER THE NEW STAFF REGULATIONS TO A HIGHER GRADE THAN THAT OBTAINED IN ACCORDANCE WITH THE PROCEDURE REFERRED TO IN ARTICLE 102, IS ENTITLED TO HAVE HIS POSITION REGULARIZED ACCORDING TO THE PRINCIPLE OF THE CORRESPONDENCE BETWEEN DUTIES AND GRADES DRAWN UP IN ANNEX I . IN THE COMPLAINT MADE ON 11 JANUARY 1963 AGAINST HIS ESTABLISHMENT IN GRADE A4 THE APPLICANT REQUESTED NOT ONLY ANNULMENT OF THE DECISION CONCERNING ESTABLISHMENT BUT, INDEPENDENTLY OF THIS, HIS RECLASSIFICATION IN GRADE A3 AS FROM 1 JANUARY 1962 . MOREOVER, THE FACT THAT THE DEFENDANT WAS ALSO AWARE OF THE DISTINCTION THUS MADE BETWEEN ESTABLISHMENT AND CLASSIFICATION IN A GRADE CORRESPONDING TO THE DUTIES INVOLVED IS SHOWN BY THE LETTER, CONTESTED IN APPLICATION 21/63, BY WHICH THE COMMISSION REJECTED THE APPLICANT'S COMPLAINT . IT IS CLEAR THAT IN THIS CASE THE APPLICANT WAS RECRUITED IN 1958 TO PERFORM THE DUTIES OF HEAD OF THE PREMISES, EQUIPMENT AND CONFERENCES DIVISION AT THE COMMISSION OF THE EEC . ON RECRUITMENT HE HAD BEEN GIVEN A POSITION CORRESPONDING TO GRADE A4 BY REFERENCE TO THE SYSTEM LAID DOWN IN THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC . ACCORDING TO THE TABLE OF GRADES AND CORRESPONDING DUTIES APPLYING TO SERVANTS OF THE HIGH AUTHORITY BEFORE THE ENTRY INTO FORCE OF THE NEW STAFF REGULATIONS, THIS GRADE WAS THE STARTING POINT OF THE CAREER BRACKET OF PRINCIPAL ADMINISTRATOR WHICH INCLUDED GRADES A4 AND A3 . THE DEFINITION GIVEN IN THIS TABLE OF THE DUTIES OF A PRINCIPAL ADMINISTRATOR (' RESPONSIBLE FOR ONE OF THE PRINCIPAL SECTIONS OF A DIVISION ') CORRESPOND TO THE DUTIES PERFORMED BY THE APPLICANT . IN THE NEW STAFF REGULATIONS OF OFFICIALS OF THE THREE COMMUNITIES THESE DUTIES CORRESPOND TO THE CAREER BRACKET OF HEAD OF DIVISION, WHICH NOW OCCURS ONLY IN GRADE A3 . MOREOVER, THE PREMISES, EQUIPMENT AND CONFERENCES DEPARTMENT IN WHICH THE APPLICANT HAS ALWAYS BEEN EMPLOYED WAS REFERRED TO AS A ' DIVISION ' IN THE ACTUAL DOCUMENT, DATED 14 DECEMBER 1962, GRANTING HIM ESTABLISHMENT . THE APPLICANT WAS RESPONSIBLE FOR THE DIRECTION OF THIS DEPARTMENT BOTH BEFORE AND AFTER HIS ESTABLISHMENT UNDER THE STAFF REGULATIONS . THE FACT THAT THE COMMISSION DID NOT DRAW UP THE DEFINITION OF POSTS LAID DOWN IN ARTICLE 5 OF THE STAFF REGULATIONS WITHIN THE REQUIRED TIME COULD NOT PREVENT THE APPLICANT'S BEING ACCORDED GRADE A3, SINCE ANNEX I IN WHICH THE COUNCIL GAVE DIRECTIONS FOR THE FORMULATION OF THIS DEFINITION PROVIDED THAT, FROM THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, HEADS OF DIVISION SHOULD BE CLASSIFIED IN THIS GRADE . MOREOVER, THE DEFINITION OF POSTS DRAWN UP BY THE COMMISSION ON 29 JULY CONFIRMS THAT THE DUTIES PERFORMED BY THE APPLICANT CORRESPOND TO THE POST OF HEAD OF DIVISION WITHIN THE MEANING OF ANNEX I . THEREFORE, FROM THE DATE OF THEIR ENTRY INTO FORCE, THE STAFF REGULATIONS UNDER WHICH THE APPLICANT WAS ESTABLISHED GAVE HIM THE RIGHT TO BE CLASSIFIED IN GRADE A3 WHICH CORRESPONDS TO HIS POST .

Decision on costs

ALTHOUGH APPLICATION 20/63 MUST BE DISMISSED THE APPLICANT HAS BEEN SUCCESSFUL IN HIS CLAIMS . IN PURSUANCE OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE DEFENDANT MUST BE ORDERED TO PAY THE COSTS .

Operative part

THE COURT HEREBY : 1 . DISMISSES APPLICATION 20/63; 2 . ANNULS THE DECISION CONTESTED IN APPLICATION 21/63; 3 . ORDERS THE DEFENDANT TO PAY THE COSTS .