61963C0070
OPINION OF MR ADVOCATE-GENERAL LAGRANGE
DELIVERED ON 4 MARCH 1964 (
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Mr President,
Members of the Court,
In this rather complicated case — that is the least that one can say — I shall refrain from relating the progress of Mr Collotti's career from the beginning, first, because it is quite clear that you are well acquainted with the career of one of the most eminent officials of the Court, and, secondly, because this historical review is in any event irrelevant to the examination of the alternative conclusions which I shall examine in due course. The principal conclusions relate exclusively to the conditions on which the applicant's classification was effected in the scale of the new Staff Regulations, taking into account his position under the Regulations at 31 December 1961, that is to say, Grade L/A, second additional step, with 2 years' seniority at that step, which was moreover the highest in its grade and of all the Language Department.
A — Principal Conclusions
The contested decision is a decision of the Court dated 14 March 1963 classifying the person concerned at Grade L/A 3, Step 5, of the new Staff Regulations, from 1 January 1962 (with the next step due on 1 July 1962).
There is no difficulty with regard to the grade: this is purely and simply an application of Annex X to the new Staff Regulations of the EEC (corresponding to Article 102 of the Common Staff Regulations of the EEC and EAEC), which provides in paragraph (4) (b) ‘An official in the Language Service shall be classified in the grade for his post’. Annex I, establishing the basic posts and corresponding career brackets, expressly classifies the ‘Head of Translation Division’ in Grade L/A 3. On the other hand, there is a dispute over the step. The applicant claims that he is entitled, as at 1 January 1962, to Step 7 of Grade L/A 3 with the right to the next step on 1 January 1964.
The difficulty turns entirely on the interpretation of the combined provisions of paragraphs (1) and (4) (b) of Annex X.
Paragraph (4) (b), the opening words of which we have just read in connexion with the grade, states thus: ‘An official in the Language Service shall be classified in the grade for his post and at the step within that grade directly above the step at which he would have been classified in accordance with paragraph (1)’.
This paragraph (1), which previous disputes have already caused you to consider, provides, be it noted, that an official may be established under the new Staff Regulations ‘in the grade and at the
step’ in the scale of remuneration laid down by these Staff Regulations corresponding to the grade and step expressly or by implication accorded him before these Staff Regulations were applied to him, provided that etc'.
As I have had occasion to observe in prior opinions this text precribes a mere reclassification — grade for grade, step for step — from the former scale to the new scale, without the necessity of taking into account the nature of the post held, or of differences of classification in the grades in relation to the former situation, which the new Staff Regulations might entail. With regard to the former established staff of the ECSC, this problem is governed by the second paragraph of Article 94, which prescribes that in such cases the person concerned ‘obtains on personal grounds the grade corresponding to that which he held with the seniority acquired in it and the right to advance in the step in that grade’. If the new classification is lower than the former, the official thus completely retains the benefit of his former classification; if the reverse is the case, there arises a problem analagous to the one with which we were faced in a previous case and to which it is unnecessary to return now: in any event, this second paragraph of Article 94 only confirms for the officials of the ECSC the rule of reclassification — which it is convenient to call ‘linear transposition’ — established by paragraph (1) of Annex X. In this system, there can be no difficulty in principle with regard to the step: the person concerned remains at the same grade and it is easy to find the corresponding step within that grade.
But paragraph (4) of Annex X institutes — as it states itself — a derogation from the rule of linear transposition established by paragraph (1): first to subparagraph (a) dealing with officials whose posts are in Category D, and then to subparagraph (b) dealing with officials in the Language Service. This double derogation is explained by the following reasons: in the first case, the creation of a fourth category necessitates the classification in it of a proportion of the officials of the former Category C; in the second case, the recasting of the Language Service, the scales of which are henceforth calculated exactly on the general scale (contrary to the previous position), makes simple linear transposition impossible. The characteristic of this derogation is that the classification is effected directly within the grade of the new Staff Regulations corresponding to the post held, so that, as we have seen, the general rule only takes into account the correspondence of the grade without having regard to the post. What must be done with regard to the step? It is clear that if the classification takes place within a grade which is new or is (different from the former one, the rule of ‘linear’ correspondence for the step no longer makes sense: it is necessary to find in the new grade a step which retains for the person concerned his previous pecuniary position (salary and seniority). It is thus this requirement which guides Article 46 in instances of promotion in the rather complicated system of ‘notional steps’. This was done in a very simple, one might say ‘very classical’ way by paragraph (4) (a) of Annex X for the classification in Category D of the officials of the former Category C by deciding that these officials would be classified in their new grade ‘at the step for which the basic salary less etc… is equal to, or else directly below the total of the basic salary … which they were receiving when these Staff Regulations entered into force’. It is certain that if such a rule had been issued for the officials of the Language Service, there would have been no problem.
Unfortunately, subparagraph (b) relating to these officials limits itself to referring to the application of paragraph (1) and to the addition of one step. As we have seen, the mechanism in paragraph (1) can only operate where the grades of the former and the new classification are identical, for, at that point, it is quite normal to take account of the identity of the steps as well. If, on the other hand, there is no identity of grade, correspondence of step can no longer be achieved by the ‘linear’ method only by reclassification: It is no longer possible, as is however required by the paragraph (1), to accord the step which the person concerned had obtained (expressly or by implication) since that step is closely connected with the grade obtained by the person concerned.
This is why the administration, in an attempt to apply paragraph (1) as exactly as possible, puts forward the argument that the grade which the official in the Language Department ‘had obtained’ was, in any event, Grade 4, corresponding, according to the administration, to Grade L/A of the former Staff Regulations.
If this argument is correct, it must in fact be possible to reclassify by step in accordance with the rule in paragraph (1) and it is then sufficient to add a step in the new grade, in accordance with paragraph (4) (b). If it is not correct, as the applicant maintains, claiming that the former Language Department was in reality ‘autonomous’ and overlapped Grade A 3 at least in part, the ‘linear’ correspondence of step cannot be brought into play, at least for the officials who, like the applicant, are classified in Grade A 3. It is therefore necessary directly to find in this last grade a step corresponding to the one which the person concerned had obtained in Grade L/A.
Thus we arrive at what learned Counsel for the parties have clearly realized constitutes the main issue in the dispute: was the former Grade L/A only a reclassification in the Language Service of Grade A 4, which merely emerged on the abolition of the last step and the creation of an additional step or, on the other hand, did it have the character of an autonomous unit, more or less overlapping Grades A 4 and A 3? It should be noted that we are simply concerned here with a problem of the correspondence between the grades and not of the interpretation of the terms ‘expressly or by implication’. The method whereby the applicant had ‘obtained’ Grade L/A was most explicit, but to what does this grade correspond in the new Staff Regulations? That is the question.
From the point of view of the ‘preparatory work’, the most significant document is the minutes of the meeting of the Committee of Presidents on 5 March 1956, produced in Schedule 12 to the statement of defence. Two propositions arise at that time: one favoured the adoption of the classification suggested by the Staff Regulations Committee, exactly transferring the different steps of Grade T/A (later to become L/A) to those of Grade A 4 of the general scale, but allowing the officials of the Language Service transfer from that service without competition; the other insisted on maintaining a closed unit. The discussion ended in a compromise: the proposition of ‘closed unit’ prevailed but, as a compensation, and in particular to allow the Head of the Language Service to obtain at the end of his career a step located in Grade 3 or even in Grade 2, it was decided to add one higher step to the proposed scale. And that is why the higher step (second additional step), which Mr Collotti was able to attain, is not located in Grade A 4: it carries with it a salary of 8220 units of account corresponding to within a few units, to Step 5 of Grade A 3 and to Step 2 of the Grade A 2.
In these circumstances, it appears to me quite arbitrary to accept the argument that the former Grade L/A corresponded to Grade A 4: the truth of the matter is that the Language Service was of an autonomous nature (it was moreover for that very reason that the Service was instituted) and that the ‘correspondence’ of the grade enclosing the officials of this service within the grades of the general scale is not necessarily to be established with Grade A 4 alone. It must not be forgotten that the scales of step clearly overlap the grades: when an increase of a step is effected, the overlap becomes so appreciable that assimilation to the grade taken as the basis becomes truly artificial. In this respect the new Staff Regulations recognized this position by dividing the higher posts of the service between Grades L/A 3 and L/A 4 corresponding exactly to Grades A 3 and A 4 of the general scale.
It is exactly this situation which the authors of Annex X apparently failed to recognize when drafting subparagraph (b) differently from subparagraph (a). As they had not observed that the method of calculation in accordance with which the steps of the service L/A were established (those of Grade A 4 arranged in rising intervals of a step), they doubtless thought it sufficient to resort to a purely automatic procedure to establish the corresponding step, that is to say, to adopt the so-called ‘linear’ method, and then add a step. In fact, as the table which Counsel for the applicant produced at the hearing clearly shows, this procedure may be applied without difficulty from Step 1 up to the first additional step: one finds the salary relating to the corresponding step of Grade 4 each time increased by exactly one unit; for example, Step 3 of Grade L/A carries with it a salary of 7021 units of account, which is certainly the salary relating to Step 4 of Grade A 4. But, arriving at the top of the scale at the second additional step of Grade L/A (8220 units of account), it no longer corresponds with Grade A 4. Consequently any calculation in which the attempt is made at all costs to proceed on the basis of Grade A 4 turns out to be arbitrary in one way or another. This is what we have to recognize in examining the method followed by the administration. Of the series of opera tions arising from that method, a number seems to me wrong, some in favour of the applicant, some against him.
First operation: According to the defendant it is Step 7 of the new Grade L/A 4 which corresponds to the step obtained by the applicant under the previous classification (L/A, second additional step). If it is admitted that there is an obligation to look for the correspondence in Grade L/A 4, this seems to be correct. In fact, it is indeed L/A 4, Step 7 (basic monthly salary: 41250 francs, according to the table appearing in Article 66 of the new Staff Regulations) which corresponds to L/A, second additional step (8200 units of account).
Second operation: Under paragraph (4) of Annex X the value of a step in the former grade is added, that is, 1650 francs per month, which leads to Step 8 of Grade L/A 4 and, at the same time, to the top of the career bracket in this grade.
Here there is an error. In fact, an additional step, in accordance with the express terms of paragraph (4) of Annex X must be granted within the new grade, at the end of the operations therefore and not in the former grade. This is of importance as the step has a higher value in the new scale (2150 francs instead of 1650 francs). Moreover, the procedure employed is contrary to the principle of linear reclassification: an additional step should simply be accorded and the value of that step should not be taken into account (that is to say, the part of the salary pertaining to it), adding to it the other allowances which the person concerned can claim, so as to arrive at a comparison of the salary thus increased with that of Grade L/A 3 — all with a view to ascertaining the step in this last grade, for such is indeed the procedure, as I have understood it, to which the administration resorted.
Third operation: Still within the former classification, the value of a notional step (still 1650 francs) is granted in order to take into account the two years' seniority which the applicant had acquired at 1 January 1962: a ‘notional’ step, since we are in reality concerned with a Step 8 which did not exist, the second additional step (or Step 7) attained by Mr Collotti being the maximum.
The twofold criticism above is equally valid here: first, the method of linear reclassification is not applied. Secondly, the provisions of Article 94 of the new Staff Regulations are disregarded: according to this provision, ‘an official established in accordance with Article 93 (that is to say in accordance with Annex X to which this Article refers) retains …the benefit of the seniority acquired in the last grade and step which he occupied when these Staff Regulations came into force …’. Therefore, as in the case of the grant of the additional step under paragraph (4) of Annex X, seniority shall be carried forward within the new grade, once establishment has been effected in accordance with the provisions of Annex X; this seems to me to emerge clearly from the provision which is, moreover, in accordance with the rules usually followed in this type of operation: at the outset the classification is effected within the new scales taking account of the appropriate rules provided for, then, if necessary, carrying forward the seniority acquired in the former scales.
Fourth Operation: A compensatory allowance (65 francs) is granted under Article 95 of the new Staff Regulations, by ‘calculating the reduction in salary which Mr Collotti would suffer in Grade A 4, last step, of the new scale, in relation to the second additional step of Grade L/A, if he were unable to claim Grade 3’.
Here too I must raise an objection of the same order: it arises from the fact that the compensatory allowance provided for by Article 95 is only granted if there is a difference between the former remuneration and that resulting from the application of the new Staff Regulations. It is therefore necessary from the outset to effect integration in accordance with Article 93 and Annex X, as, according to the terms of Article 95, it is only ‘an official whose remuneration is reduced by reason of the application of the provisions of these Staff Regulations’ who is entitled to a compensatory allowance. This may not be employed as a means of calculation to establish the corresponding step.
Fifth and Sixth operations: These consist in the application of the provisions of Article 46 of the Staff Regulations relating to promotion, which accords the benefit of a step to a promoted official and relates to a method of calculation based on ‘actual steps’.
This is clearly a question of a special advantage granted to the applicant, the legality of which is, however, very debatable, for in the special case of paragraph (4) of Annex X, as we have seen, integration must be effected directly in the grade corresponding to the post, even if the new Staff Regulations classify this post differently: the operation may not be broken down and may not, even in part, be assimilated to a promotion. The person concerned is entitled to be integrated directly into the grade of the new Staff Regulations corresponding to his post, and it is merely a question of establishing the relevant step in this grade.
These are the reasons for which I consider that it is not possible to accept the mechanism, no matter how sophisticated it is and despite the efforts made in certain respects to benefit the person concerned.
What then is to be done?
It seems to me to be very simple. In my opinion, if it is admitted that the grade of the new scale corresponding to the grade which the person concerned had expressly obtained in his former classification is Grade L/A 3, it is sufficient to effect a reclassification of the step: it can scarcely be debated that this is indeed Step 5 of the former Grade A 3 (8220 units of account) which corresponds, to within a few units of account, to the second additional step obtained by the person concerned in his former classification L/A (8220 units of account). This corresponds to Step 5 of the new scale (45250 francs), as the applicant maintains. This is simply an application of paragraph (1) of Annex X.
But in my opinion there can no longer be any question of adding yet another additional step in pursuance of paragraph (4) of Annex X, which would constitute duplication. In fact, under this system, the application of paragraph (4) in determining the step becomes pointless: the sole aim of granting an additional step is to take account of the upwards displacement of the step, which is however only justified in relation to Grade 4; this aim no longer exists when reclassification is effected directly to Grade 3.
One must find further justification — or justification of a different sort — for this increase of a step provided for in paragraph (4) of Annex X. This is what the applicant has tried to do by alleging that we are concerned here with compensation for the fact that a servant in the Language Department is always confined to this Department and, even although he becomes Head of the Department, he can never rise beyond Grade L/A 3. But we are not entering the realm of speculation, which is rather dangerous in a case such as this, and, as the applicant recognizes, which nothing in the ‘preparatory work’ confirms. It is all the more dangerous since the double advantage which would thus be accorded the Head of the Department could not be accorded to the other officials for whom assimilation with Grade A 4 must be maintained; this would result in an unfair distortion with regard to the latter. In reality the advantage given to the Head of the Department arises quite simply from the fact that the new Staff Regulations classify him in Grade L/A 3, giving him access to the higher steps of that grade, instead of remaining ‘blocked’ in A 4 with the sole benefit of an additional step, as was the case under the former Staff Regulations. On the other hand, of course there are grounds for carrying forward the seniority acquired at i January 1962, which, in the present case, would allow Mr Collotti to obtain from 1 January 1962 the following step, that is to say, Step 6, and not only from 1 January 1962 as was laid down in the contested provision.
As a minor additional point, I would like to add that if you judge the interpretation suggested by me to be impossible and if you consider that the reclassification must be made exclusively on the basis of Grade L/A 4, it seems that one would, or could, arrive at the same result.
In fact, therefore, it is necessary to adopt the administration's system: it is Step 7 of the new Grade L/A 4 which corresponds to the step obtained by the applicant in his former grade (L/A, second additional step). This Step 7 carries with it a salary of 41250 francs. It is consequently necessary to discover, in accordance with the actual terms of paragraph (1) of Annex X, the corresponding step in Grade L/A 3.
But a difficulty arises here: the salary of 41250 francs is half way between the salary of Step 3 and that of Step 4 of Grade L/A 3 (40950 and 43100 respectively). Should reference be made to the step directly above or to the step directly below? Doubt may be experienced if it is observed that paragraph (4) (a) of Annex X (perhaps you have noticed it in the course of the reading) refers ‘to the step whose basic salary … is equal to, or directly below the amount of the basic salary’ previously received. It might be said, however, that in this case we are not concerned with comparing salaries, but steps, and there is nothing to preclude the choice of the step directly above.
If reference is thus made to Step 4, it is then sufficient to grant the additional step in accordance with paragraph (4) of Annex X. The result, as under the first system, is Step 5 at 1 January 1962 (and Step 6 by carrying forward the seniority). But, as you can see, this system requiring as it does a double reclassification, is more arbitrary than the preceding one and for this reason I prefer the former system.
B — Alternative Conclusions
My explanations with regard to the alternative conclusions will be extremely brief as these do not appear to me to be admissible.
These conclusions, as amended in .1.
These conclusions, as amended in the reply, in fact request the annulment of ‘the individual decision of the Court dated 17 July 1956 to the extent that the said decision is based on Article 2 (b) of the General Staff Regulations of the ECSC, adopted by the Committee of Presidents, which must from the outset be declared inapplicable on the ground of infringement of Article 24 of the (former) Staff Regulations of the ECSC’. The applicant consequently claims that his career bracket should be restructured. The application then raises the objection of the illegality of the General Staff Regulations of the ECSC in relation to the Staff Regulations.
It seems to me certain that the General Staff Regulations, which were adopted pursuant to the Staff Regulations and by delegation, cannot be contrary to them, all the more so since the competent authority was not the same: the Committee of Presidents and the Court of Justice for the Staff Regulations and the Committee of Presidents alone for the General Staff Regulations. But a plea of illegality can only be raised against a regulation on an appeal against an individual decision adversely affecting the person concerned. The applicant has indeed realized this, by amending the conclusions of his application with a claim for the annulment of the decision of 17 July 1956 appointing him an established official in Grade L/A, Step 5, as from 1 July 1956. Since this decision was not contested within the prescribed time-limit, it has taken effect and has become definitive.
The alternative conclusions thus appear inadmissible.
I am therefore of the opinion that:
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the decision of the Court of Justice of 14 March 1963 should be annulled to the extent that it fixed the accession of Mr Collotti to step 6 of Grade L/A 3 only at 1 July 1962, since such accession should take effect from 1 January 1962;
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Mr Collotti's case should be referred back to the Court of Justice for it to take the appropriate measures concerning him in compliance with your judgment;
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the remaining principal conclusions of the applicant should be dismissed;
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the alternative conclusions should be dismissed;
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the defendant should be ordered to bear the costs.
(
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