61984CJ0191_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
( III)WITH REGARD TO COSTS, APPLY ARTICLE 70 OF THE RULES OF PROCEDURE .
JUDGMENT OF THE COURT ( SECOND CHAMBER )
7 MAY 1986*
IN CASE 191/84
( 1 ) JEAN-PIERRE BARCELLA,
( 2 ) WINFRIED BLASIUS,
( 3 ) DENIS CARRARA,
( 4 ) ROGERS DELGADO,
( 5 ) MARC DICKES,
( 6 ) JOEL FICHANT,
( 7 ) MICHEL KUBIAK,
( 8 ) ANTONIO MANDARINO,
( 9 ) GIOVANNI MILLOCH,
( 10 ) CLAUDIO PEZZAN,
( 11 ) LUCIANO PROIETTI,
( 12 ) FRANCO ROSSI,
( 13 ) MARINO TURCO,
( 14 ) ALBERT ZBOGAR,
( 15 ) IOANIS KLAPANARIS,
( 16 ) CHRISTOS TARTORAS,
( 17 ) ATHANAS TZIKAS,
( 18 ) GERARD ZISKOS,
( 19 ) CLAUDIO BARTOLETTI,
( 20 ) ROGER BELLE,
( 21 ) ANTONIO FERRI,
( 22 ) BRUNO FRANZ,
( 23 ) JAN LAUREYS,
( 24 ) GERARD REIS,
( 25 ) ROBERT SCHEMBERGER,
( 26 ) ROBERT SCHIERTZ,
( 27 ) JOHNNY SCHINTGEN,
( 28 ) ALAIN ZASTAWNIK,
OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JEAN-NOEL LOUIS, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICHOLAS DECKER, 16 AVENUE MARIE-THERESE,
APPLICANTS,
Subject of the case
V
Grounds
JUDGMENT
( THE ACCOUNT OF THE FACTS AND ISSUES WHICH IS CONTAINED IN THE COMPLETE TEXT OF THE JUDGMENT IS NOT REPRODUCED )
DECISION
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 18 JULY 1984, FRANCO ROSSI AND 27 OTHER OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN GRADES D 4, D 3 AND D 1 BROUGHT AN ACTION FOR THE ANNULMENT OF COMMISSION DECISIONS OF 21 NOVEMBER 1983, 15 DECEMBER 1983 AND 11 JANUARY 1984 REFUSING TO RECLASSIFY THEM IN CATEGORY C .
2 IN THEIR REPLY, THE APPLICANTS ASKED THE COURT TO ' DECLARE THAT THEY ARE ENTITLED, WITHOUT BEING SUBJECT TO DISCIPLINARY MEASURES, TO REFUSE TO CARRY OUT DUTIES WHICH DO NOT CORRESPOND TO THEIR GRADE . '
3 THE COMMISSION OBJECTS TO THAT CHANGE IN THE SUBJECT-MATTER OF THE APPLICATION, WHICH WAS NOT SET OUT IN THE ORIGINAL APPLICATION OR REFERRED TO DURING THE PRE-LITIGATION STAGE .
4 IT IS THEREFORE NECESSARY FIRST OF ALL TO DEFINE THE SUBJECT-MATTER OF THE PROCEEDINGS .
5 THE CLAIM PUT FORWARD FOR THE FIRST TIME IN THE REPLY MODIFIES THE ORIGINAL SUBJECT-MATTER OF THE APPLICATION AND MUST BE REGARDED AS A NEW CLAIM . UNDER ARTICLE 38 ( 1 ) IN CONJUNCTION WITH ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE AND THE FIRST PARAGRAPH OF ARTICLE 19 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC, THE SUBJECT-MATTER OF THE CLAIM MUST BE SET OUT IN THE APPLICATION, AND NO NEW CLAIM MAY BE SUBMITTED IN THE COURSE OF THE PROCEEDINGS .
6 CONSEQUENTLY, THE CLAIM PUT FORWARD IN THE REPLY MUST BE CONSIDERED INADMISSIBLE, AND THE PROCEEDINGS THEREFORE CONCERN ONLY THE CLAIM FOR THE ANNULMENT OF THE REFUSAL TO RECLASSIFY THE APPLICANTS .
7 WITH THE EXCEPTION OF MR BLASIUS, WHO WAS APPOINTED AS AN OFFICIAL IN GRADE D 1 ON 1 JANUARY 1962, THE APPLICANTS WERE ALL EMPLOYED INITIALLY AS LOCAL OR TEMPORARY STAFF BETWEEN 1974 AND 1981 . AFTER ENTERING AND PASSING COMPETITIONS, THEY WERE APPOINTED AS PROBATIONARY OFFICIALS IN GRADES D 4 OR D 3 BETWEEN 1981 AND 1983, THE LAST OF THEM ON 1 APRIL 1983 . THEY WERE ESTABLISHED IN THOSE GRADES IN THE COURSE OF 1982 AND 1983, THE LAST OF THEM ON 1 OCTOBER 1983 . IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE NATURE OF THE APPLICANTS '
WORK HAS NOT SIGNIFICANTLY ALTERED SINCE THEY ENTERED THE SERVICE OF THE COMMISSION AS LOCAL OR TEMPORARY EMPLOYEES .
8 THE APPLICANTS TAKE THE VIEW THAT THEIR WORK DOES NOT FALL UNDER CATEGORY D - OFFICIALS ENGAGED IN ELEMENTARY OR ROUTINE WORK - BUT UNDER CATEGORY C - OFFICIALS ENGAGED IN THE EXECUTION OF WORK OF A TECHNICAL NATURE NECESSITATING A PROFESSIONAL BACKGROUND AND QUALIFICATIONS SUPPORTED IN PRINCIPLE BY A CERTIFICATE OF OCCUPATIONAL PROFICIENCY OR ACQUIRED THROUGH PRACTICAL EXPERIENCE - IN ACCORDANCE WITH THE TABLE SHOWING BASIC POSTS AS PROVIDED FOR IN ARTICLE 5 OF THE STAFF REGULATIONS PUBLISHED IN THE COMMISSION ' S ADMINISTRATIVE NOTICES NO . 373 OF 9 JULY 1982 . ACCORDINGLY, BY REQUESTS SUBMITTED ON 15 SEPTEMBER, 22 NOVEMBER AND 13 DECEMBER 1983 PURSUANT TO ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS, THEY ASKED THE COMMISSION TO RECLASSIFY THEIR POSTS, STATING THAT THE INSTRUMENTS APPOINTING THEM AND CLASSIFYING THEM IN CATEGORY D WERE AT VARIANCE WITH THE TABLE OF BASIC POSTS .
9 THOSE REQUESTS WERE EXPRESSLY REJECTED BY THE COMMISSION BY DECISIONS OF 21 NOVEMBER 1983, 15 DECEMBER 1983 AND 11 JANUARY 1984 . ON 19 DECEMBER 1983 AND 18 JANUARY 1984, THE APPLICANTS SUBMITTED COMPLAINTS AGAIN REQUESTING THEIR RECLASSIFICATION IN CATEGORY C . THE COMMISSION DID NOT REPLY TO THOSE COMPLAINTS, AND THE APPLICANTS THEREFORE BROUGHT THIS ACTION ON 18 JULY 1984 .
10 THE COMMISSION OBJECTS THAT THE ACTION IS OUT OF TIME AND THEREFORE INADMISSIBLE, ON THE GROUND THAT THE ACTS ADVERSELY AFFECTING THE APPLICANTS WERE THE INITIAL DECISIONS APPOINTING THEM AS OFFICIALS . THE REQUESTS FOR RECLASSIFICATION SUBMITTED TO THE COMMISSION MUST THEREFORE BE REGARDED AS COMPLAINTS AGAINST THOSE DECISIONS . HOWEVER, THOSE COMPLAINTS WERE NOT BROUGHT WITHIN THE PERIOD OF THREE MONTHS IMMEDIATELY FOLLOWING THE APPOINTMENT OF EACH APPLICANT . THE PUBLICATION OF ADMINISTRATIVE NOTICES NO 373 ON 9 JULY 1982, CONTAINING THE TABLE SHOWING BASIC POSTS AS PROVIDED FOR IN ARTICLE 5 OF THE STAFF REGULATIONS, DID NOT CONSTITUTE A NEW EVENT JUSTIFYING THE RE-OPENING OF THE PERIOD FOR SUBMITTING A COMPLAINT . THE APPLICANTS WERE APPOINTED IN THE GRADE IN WHICH THEY HAD PREVIOUSLY BEEN CLASSIFIED AND THEIR DUTIES REMAINED IDENTICAL .
11 IN ITS JUDGMENT OF 18 JUNE 1981 ( CASE 173/80 BLASIG V COMMISSION ( 1981 ) ECR 1649 ), THE COURT HELD THAT IN THE CASE OF A REQUEST FOR RECLASSIFICATION THE MEASURE ADVERSELY AFFECTING THE APPLICANT IS THE DECISION APPOINTING HIM AS A PROBATIONARY OFFICIAL . IT IS THAT DECISION WHICH DEFINES THE DUTIES FOR WHICH THE OFFICIAL HAS BEEN APPOINTED AND DEFINITIVELY FIXES THE CORRESPONDING GRADE . THE DECISION ESTABLISHING THE OFFICIAL MERELY CONFIRMS THAT DECISION .
12 AN OFFICIAL MAY CHALLENGE HIS CLASSIFICATION ON RECRUITMENT ONLY UNDER THE CONDITIONS AND WITHIN THE TIME-LIMITS LAID DOWN IN THE STAFF REGULATIONS ( SEE THE JUDGMENT OF 1 DECEMBER 1983 IN CASE 198/82 BLOMEFIELD V COMMISSION ( 1983 ) ECR 3981 ). THE TIME-LIMITS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS ARE MANDATORY AND ARE NOT SUBJECT TO THE DISCRETION OF THE PARTIES OR OF THE COURT, SINCE THEY WERE LAID DOWN WITH A VIEW TO ENSURING CLARITY AND LEGAL CERTAINTY ( SEE THE JUDGMENTS OF 20 MARCH 1984 IN JOINED CASES 75 AND 117/82 RAZZOUK AND BEYDOUN V COMMISSION ( 1984 ) ECR 1509, AND 12 JULY 1984 IN CASE 227/83 MOUSSIS V COMMISSION ( 1984 ) ECR 3133 ). AN OFFICIAL CANNOT CONTRIVE TO RE-OPEN THE LIMITATION PERIODS BY SUBMITTING A REQUEST TO THE APPOINTING AUTHORITY UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS RATHER THAN A COMPLAINT AGAINST THE DECISION ADVERSELY AFFECTING HIM . THE APPLICANTS '
' REQUESTS FOR RECLASSIFICATION '
MUST THEREFORE BE REGARDED AS COMPLAINTS WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AND SHOULD HAVE BEEN BROUGHT WITHIN THREE MONTHS OF THE ACT ADVERSELY AFFECTING THEM .
Decision on costs
13 ONCE THE TIME-LIMITS FOR THE COMMENCEMENT OF PROCEEDINGS AGAINST AN ACT ADVERSELY AFFECTING AN OFFICIAL HAVE EXPIRED, A REQUEST UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS MAY BE BROUGHT ONLY IN THE EVENT OF A NEW CIRCUMSTANCE ARISING WHICH MAKES IT NECESSARY TO RECONSIDER THE SITUATION . THE PUBLICATION IN ADMINISTRATIVE NOTICES NO 373 OF 9 JULY 1982 OF THE TABLE OF BASIC POSTS DOES NOT CONSTITUTE A NEW CIRCUMSTANCE . THE TABLE DOES NOT ALTER THE DESCRIPTION OF THE APPLICANTS '
POSTS, BUT MERELY BRINGS UP TO DATE THE TABLE PREVIOUSLY PUBLISHED IN ADMINISTRATIVE NOTICES NO 272 OF 4 SEPTEMBER 1973, INCORPORATING THE AMENDMENTS WHICH HAVE BEEN MADE REGARDING CATEGORIES A AND B AND CERTAIN POSTS IN CATEGORY C INVOLVING DATA PROCESSING . IN ANY EVENT, AS THE COURT HELD IN ITS JUDGMENT OF 18 JUNE 1981 ( BLASIG, REFERRED TO ABOVE ), THE DESCRIPTION OF BASIC POSTS DOES NOT ENTITLE STAFF TO REQUIRE, AFTER APPOINTMENT IN A GIVEN GRADE, A HIGHER GRADE OUTSIDE THE NORMAL PROMOTION PROCEDURE .
14 SINCE THE LAST OF THE APPLICANTS WAS APPOINTED ON 1 APRIL 1983, AND THE FIRST, MR BLASIUS, ON 1 JANUARY 1962, THE LIMITATION PERIOD OF THREE MONTHS LAID DOWN IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS HAD ALREADY EXPIRED BY 15 SEPTEMBER, 22 NOVEMBER AND 13 DECEMBER 1983, THE DATES ON WHICH THE REQUESTS FOR RECLASSIFICATION WERE SUBMITTED .
Operative part
15 UNDER ARTICLE 91 ( 2 ) OF THE STAFF REGULATIONS AN APPEAL TO THE COURT OF JUSTICE LIES ONLY WHERE THE APPOINTING AUTHORITY HAS PREVIOUSLY HAD A COMPLAINT SUBMITTED TO IT PURSUANT TO ARTICLE 90 ( 2 ) WITHIN THE PERIOD PRESCRIBED THEREIN . SINCE THE COMPLAINTS WERE SUBMITTED AFTER THE EXPIRY OF THE PERIOD PRESCRIBED IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS THE ACTION BROUGHT BY THE APPLICANTS MUST BE DISMISSED AS INADMISSIBLE .
COSTS
16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )