61985CJ0302_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 302/85
HORST PRESSLER-HOEFT,
A MEMBER OF THE TEMPORARY STAFF OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 18A RUE DES GLACIS,
APPLICANT,
V
COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES,
REPRESENTED BY MICHAEL BECKER, ADMINISTRATOR IN CHARGE OF THE LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, RUE ALDRINGEN,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COURT OF AUDITORS REFUSING TO RE-CLASSIFY MR PRESSLER-HOEFT RETROACTIVELY,
THE COURT ( FIRST CHAMBER )
COMPOSED OF : F . SCHOCKWEILER, PRESIDENT OF THE CHAMBER, G . BOSCO AND R . JOLIET, JUDGES,
ADVOCATE GENERAL : C.O . LENZ
REGISTRAR : D . LOUTERMANN, ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 27 NOVEMBER 1986,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 11 DECEMBER 1986,
GIVES THE FOLLOWING :
JUDGMENT
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 8 OCTOBER 1985, HORST PRESSLER-HOEFT, A MEMBER OF THE TEMPORARY STAFF OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE COURT OF AUDITORS REJECTING AS BEING OUT OF TIME HIS REQUEST OF 14 JANUARY 1985 TO BE RE-CLASSIFIED IN GRADE A*7, STEP 2 ( THE GRADE WHICH HE HELD UNDER THE CONTRACT OF EMPLOYMENT OF 12 JANUARY 1982 ) WITH RETROACTIVE EFFECT FROM 1 JANUARY 1984, THE DATE ON WHICH THE CONTRACT OF EMPLOYMENT OF 21 DECEMBER 1983 CAME INTO EFFECT . IN THE ALTERNATIVE, HE CLAIMS THAT THE COURT OF AUDITORS SHOULD BE ORDERED TO PAY THE DIFFERENCE BETWEEN THE SALARY CORRESPONDING TO GRADE A 7, STEP 2, AND THAT CORRESPONDING TO GRADE B 3, STEP 3, IN WHICH HE WAS CLASSIFIED BETWEEN 1 JANUARY 1984 AND 14 JANUARY 1985, THE DATE ON WHICH THE AGREEMENT SUPPLEMENTARY TO THE SECOND CONTRACT OF EMPLOYMENT, RE-CLASSIFYING HIM IN GRADE A 7, STEP 3, CAME INTO EFFECT .
2 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 17 DECEMBER 1985, THE COURT OF AUDITORS RAISED AN OBJECTION OF INADMISSIBILITY AND ASKED THE COURT OF JUSTICE TO DECIDE THEREON WITHOUT CONSIDERING THE SUBSTANCE OF THE CASE .
3 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A MORE DETAILED STATEMENT OF THE FACTS, THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
4 THE COURT HAS CONSISTENTLY HELD THAT IN REGARD TO PROBLEMS OF CLASSIFICATION, THE ACT ADVERSELY AFFECTING THE OFFICIAL OR THE MEMBER OF THE TEMPORARY STAFF IS THE DECISION WHICH DEFINES THE DUTIES FOR WHICH HE HAS BEEN APPOINTED AND DEFINITIVELY FIXES THE CORRESPONDING GRADE ( JUDGMENT OF 18 JUNE 1981 IN CASE 173/80 BLASIG V COMMISSION (( 1981 )) ECR 1649; AND JUDGMENT OF 7 MAY 1986 IN CASE 191/84 BARCELLA AND OTHERS V COMMISSION (( 1986 )) ECR 1541 ). OFFICIALS OR MEMBERS OF THE TEMPORARY STAFF MAY CHALLENGE THAT CLASSIFICATION ONLY UNDER THE CONDITIONS AND WITHIN THE TIME-LIMITS LAID DOWN IN THE STAFF REGULATIONS ( JUDGMENT OF 1 DECEMBER 1983 IN CASE 198/82 BLOMEFIELD V COMMISSOIN (( 1983 )) ECR 3981 ).
5 THE TIME-LIMITS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS ARE MANDATORY AND ARE CONSEQUENTLY BINDING ON THE COURT ( JUDGMENT OF 20 MARCH 1984 IN JOINED CASES 75 AND 117/82 RAZZOUK AND BEYDOUN V COMMISSION (( 1984 )) ECR 1509; JUDGMENT OF 12 JULY 1984 IN CASE 227/83 MOUSSIS V COMMISSION /1984 / ECR 3133; AND JUDGMENT OF 7 MAY 1986 IN BARCELLA, CITED ABOVE ). AN OFFICIAL OR A MEMBER OF THE TEMPORARY STAFF MAY NOT THEREFORE CONTRIVE TO CAUSE TIME TO RUN AFRESH BY SUBMITTING TO THE APPOINTING AUTHORITY A REQUEST UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS RATHER THAN A COMPLAINT AGAINST THE DECISION ADVERSELY AFFECTING HIM . THE COURT OF AUDITORS WAS THEREFORE ENTITLED TO CONSIDER THAT MR PRESSLER-HOEFT' S "REQUEST FOR RE-CLASSIFICATION" OF 14 JANUARY 1985 IN FACT CONSTITUTED A COMPLAINT WHICH, PURSUANT TO ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, SHOULD HAVE BEEN SUBMITTED WITHIN THREE MONTHS OF THE ACT ADVERSELY AFFECTING HIM, NAMELY THE CONTRACT OF EMPLOYMENT WHICH CAME INTO EFFECT ON 1 JANUARY 1984 .
6 A REQUEST UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS SUBMITTED AFTER THE EXPIRY OF THE TIME-LIMIT FOR BRINGING AN ACTION AGAINST THE ACT ADVERSELY AFFECTING THE PERSON CONCERNED IS ADMISSIBLE ONLY IF NEW FACTS HAVE ARISEN WHICH JUSTIFY A RE-CONSIDERATION OF THE SITUATION .
7 THE APPLICANT CONSIDERS THAT IN HIS CASE, SUCH NEW FACTS DO INDEED EXIST, NAMELY THE DISTRIBUTION ON 10 JANUARY 1985 OF A DOCUMENT ENTITLED "ORIENTATIONS CONCERNANT LA GESTION DE PERSONNEL", (( GUIDELINES FOR PERSONNEL MANAGEMENT )), A MEMORANDUM FROM A MEMBER OF THE COURT OF AUDITORS AND A CERTIFICATE ISSUED BY HIS HEAD OF SECTION, WHICH DOCUMENTS REVEALED THAT THE DUTIES HE WAS PERFORMING WERE ACTUALLY THOSE OF AN OFFICIAL IN CATEGORY A . THE SAME CONCLUSIONS MAY ALSO BE DRAWN FROM THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS OF 18 JULY 1985 .
8 WITH REGARD TO THE "ORIENTATIONS CONCERNANT LA GESTION DU PERSONNEL", IT CAN BE SEEN FROM THE FILE AND FROM WHAT WAS SAID AT THE HEARING THAT THAT DOCUMENT IS A DRAFT WHICH HAS NOT BEEN APPROVED BY THE APPOINTING AUTHORITY AND WHICH, CONSEQUENTLY, COULD NOT PRODUCE LEGAL EFFECTS . IT IS THEREFORE NOT A DOCUMENT LAYING DOWN GENERAL CRITERIA FOR CLASSIFICATION AND CAPABLE, FOR THAT REASON, OF CONSTITUTING A NEW FACT IN THE SENSE THAT IT CAUSED THE APPLICANT TO DISCOVER THAT HE HAD BEEN CLASSIFIED IN A GRADE BELOW THAT CORRESPONDING TO THE DUTIES HE ACTUALLY PERFORMED .
9 THE MEMORANDUM FROM A MEMBER OF THE COURT OF AUDITORS TO THE PRESIDENT, FOR ITS PART, MERELY RECOMMENDS EMPLOYING THE APPLICANT IN A POST AT GRADE A 7 IN THE "OWN-RESOURCES" SECTOR, AFTER STATING THAT IN BUDGETARY TERMS, HE WAS UNDER-OCCUPYING AN A 7 PERMANENT POST . THAT DOCUMENT SAYS NOTHING ABOUT THE DUTIES WHICH THE APPLICANT ACTUALLY PERFORMED AND THE MERE FACT THAT, FOR BUDGETARY PURPOSES, HIS SALARY WAS PAID OUT OF CREDITS ALLOCATED FOR AN A 7 POST IS NOT SUFFICIENT TO SHOW THAT HE WAS ACTUALLY PERFORMING DUTIES PERTAINING TO THAT GRADE . CONSEQUENTLY, THE APPLICANT CANNOT RELY ON THAT DOCUMENT TO SHOW THAT HE WAS ACTUALLY PERFORMING THE DUTIES OF AN OFFICIAL IN GRADE A 7 .
10 THE CERTIFICATE FROM THE APPLICANT' S HEAD OF SECTION, DRAWN UP IN NOVEMBER 1984, MENTIONS THAT THE APPLICANT TOOK PART IN INSPECTION VISITS TO THE COMMISSION IN BRUSSELS AND AT THE OFFICES OF NATIONAL AUTHORITIES WITHOUT INDICATING THAT THE INSPECTION MISSIONS WERE CARRIED OUT BY HIM PERSONALLY AND ON HIS OWN RESPONSIBILITY . HOWEVER, AS THE COURT OF AUDITORS HAS POINTED OUT, WITHOUT BEING CONTRADICTED, INSPECTION MISSIONS ARE OFTEN CARRIED OUT BY TEAMS COMPOSED OF OFFICIALS IN GRADE A 7 ASSISTED BY MEMBERS OF STAFF IN CATEGORY B . CONSEQUENTLY, THAT DOCUMENT IS NO INDICATION THAT THE APPLICANT CARRIED OUT DUTIES CORRESPONDING TO THOSE OF A GRADE A 7 POST .
11 FINALLY, THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS OF 18 JULY 1985, ADOPTED AS A RESULT OF THE APPLICANT' S COMPLAINT OF 16 APRIL 1985 AGAINST THE DECISION OF 7 FEBRUARY 1985 REJECTING HIS REQUEST FOR RE-CLASSIFICATION SUBMITTED ON 14 JANUARY 1985, MAY NOT BE REGARDED AS A NEW FACT CAUSING THE PERIOD FOR CONTESTING A DECISION WHICH HAD BECOME DEFINITIVE TO START RUNNING AFRESH SINCE IT IS SUBSEQUENT TO THE REQUEST FOR RE-CLASSIFICATION AND IT CONFIRMS THE PREVIOUS DECISION OF 7 FEBRUARY 1985 WHICH HELD THAT THE REQUEST WAS INADMISSIBLE .
12 THUS, NONE OF THE DOCUMENTS RELIED ON BY THE APPLICANT CONSTITUTES A NEW FACT CAUSING THE APPLICANT TO REALIZE THAT HE WAS ACTUALLY PERFORMING THE DUTIES PERTAINING TO A GRADE A 7 POST AND, FOR THAT REASON, RE-OPENING THE TIME-LIMIT FOR BRINGING AN ACTION, SINCE THE REQUEST OF 14 JANUARY 1985 SEEKING AN AMENDMENT OF THE CONTRACT OF EMPLOYMENT OF 21 DECEMBER 1983 MUST BE REGARDED AS OUT OF TIME ON THE GROUND THAT IT WAS SUBMITTED AFTER THE EXPIRY OF THE TIME-LIMIT WITHIN WHICH THE DECISION COULD BE CONTESTED .
13 CONSEQUENTLY, THE APPLICATION MUST BE DECLARED INADMISSIBLE .
Decision on costs
COSTS
14 UNDER THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE, THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR . HAVING REGARD TO THE CONDUCT OF THE COURT OF AUDITORS TOWARDS MR PRESSLER-HOEFT, IT IS EQUITABLE TO ORDER THE COURT OF AUDITORS TO PAY HALF OF THE APPLICANT' S COSTS, SINCE THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS OF 18 JULY 1985 WAS FORMULATED IN TERMS WHICH COULD HAVE CAUSED THE APPLICANT TO BELIEVE THAT AN ACTION WOULD BE ADMISSIBLE .
Operative part
On those grounds,
THE COURT ( First Chamber )
hereby :
( 1 ) Dismisses the application as inadmissible;
( 2 ) Orders the Court of Auditors to pay its own costs as well as half of those incurred by the applicant .