61965CJ0015_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 15/65
WERNER KLAER, AN UNCLASSIFIED ADVISER TO THE HIGH AUTHORITY, RESIDING AT LUXEMBOURG, ASSISTED BY ALEX BONN, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND-DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS SAID COUNSEL, 22 RUE DE LA COTE-D' EICH,
APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, GUY SAUTTER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF 2-16 DECEMBER 1964 ASSIGNING THE APPLICANT TO THE DIRECTORATE-GENERAL FOR ECONOMY AND ENERGY, OR, ALTERNATIVELY, FOR A DECLARATION THAT THIS DECISION IS ILLEGAL;
Grounds
P.1053
A - ADMISSIBILITY
THE DEFENDANT MAINTAINS THAT THE APPLICATION IS INADMISSIBLE IN THAT IT IS DIRECTED AGAINST AN ACT WHICH DOES NOT ADVERSELY AFFECT THE APPLICANT . THE CONTESTED DECISION LED TO NO INJURY TO THE MATERIAL INTERESTS OF THE APPLICANT AND NO REDUCTION IN HIS RANK AS COMPARED WITH THE DIRECTOR-GENERAL WITH WHOM HE WAS REQUIRED TO CO-OPERATE . THE NEW DEFINITION OF HIS DUTIES MADE BY THE ADMINISTRATIVE AUTHORITY DID NOT ADVERSELY AFFECT HIS STATUS AND THUS, IT IS NOT ADMISSIBLE FOR THE APPLICANT TO CONTEST THE DECISION OF THE HIGH AUTHORITY .
P.1054
THE APPLICANT RIGHTLY REPLIES THAT IN THIS CASE THE ADMISSIBILITY OF THE APPLICATION IS CLOSELY CONNECTED TO THE SUBSTANCE OF THE CASE AND THAT IT IS ONLY AFTER THE CONSIDERATION OF THE SUBSTANCE BY COMPARING THE CONTENT OF THE CONTESTED DECISION WITH THOSE PROVISIONS OF THE STAFF REGULATIONS WHICH HAVE ALLEGEDLY BEEN INFRINGED THAT IT WILL BE POSSIBLE TO STATE WHETHER OR NOT THIS DECISION CONSTITUTES AN ACT ADVERSELY AFFECTING THE APPLICANT .
B - THE SUBSTANCE OF THE CASE
THE APPLICANT MAINTAINS THAT, BY ASSIGNING TO HIM DUTIES WHICH ARE NOT OF THE LEVEL OF THOSE USUALLY ASSIGNED TO AN UNCLASSIFIED ADVISER IN GRADE A1, THE DECISION IN QUESTION INFRINGED THE STAFF REGULATIONS OF OFFICIALS, IN PARTICULAR ARTICLES 5 AND 7 .
THE DEFINITIONS OF DUTIES AND POWERS, ADOPTED BY THE HIGH AUTHORITY ON 18 DECEMBER 1962 IN ACCORDANCE WITH ARTICLE 5(4 ) OF THE STAFF REGULATIONS DEFINES AN UNCLASSIFIED ADVISER AS A ' VERY HIGHLY-QUALIFIED OFFICIAL WITH THE TASK OF ADVISING THE INSTITUTION OR ENGAGED IN TOP - LEVEL STUDIES '.
THUS, AN UNCLASSIFIED ADVISER CANNOT BE REQUIRED TO ADVISE A DIRECTORATE-GENERAL .
FURTHERMORE, UNDER ARTICLE 7 OF THE STAFF REGULATIONS THE DEFENDANT IS BOUND TO ASSIGN EACH OFFICIAL TO A POST IN HIS CATEGORY WHICH CORRESPONDS TO HIS GRADE .
THE ABOVEMENTIONED PROVISIONS SHOW THAT AN OFFICIAL IS ENTITLED NOT ONLY TO REMAIN IN THE SAME GRADE AND RECEIVE THE CORRESPONDING REMUNERATION, BUT ALSO TO BE ENTRUSTED WITH DUTIES AND POWERS WHICH ARE AS A WHOLE IN ACCORDANCE WITH THE POST CORRESPONDING TO THE GRADE WHICH HE HOLDS IN THE ADMINISTRATION .
THE FIRST QUESTION IS, THEREFORE, WHETHER THE EFFECT OF THE DECISION APPOINTING THE APPLICANT TO A POST AS ASSISTANT TO THE DIRECTOR-GENERAL FOR ECONOMY AND ENERGY, WHO ALSO HELD GRADE A1, WAS NOT TO PLACE HIM IN A LOWER ADMINISTRATIVE POSITION THAN ANOTHER OFFICIAL IN THE SAME GRADE . IT IS IN THE VERY NATURE OF THE DUTIES OF AN ASSISTANT TO THE DIRECTOR-GENERAL THAT THE PERSON TO WHOM SUCH DUTIES ARE ASSIGNED IS IN A SUBORDINATE POSITION AS COMPARED WITH THE DIRECTOR-GENERAL HIMSELF .
THE POSITION OF THE DIRECTOR-GENERAL IN RELATION TO THE APPLICANT IS CONFIRMED BY THE DEFINITIONS OF DUTIES AND POWERS ANNEXED TO THE DECISION IN QUESTION .
IN PARTICULAR THE STATEMENT THAT IN THE ABSENCE OF THE DIRECTOR-GENERAL AT EXTERNAL MEETINGS MR KLAER SHALL EXPRESS THE POINT OF VIEW OF THE DIRECTORATE-GENERAL MEANS THAT THIS POINT OF VIEW WILL NOT BE PREPARED ON THE BASIS OF THE OPINION OF THE APPLICANT BUT RATHER ON THAT OF THE DIRECTOR-GENERAL .
P.1055
SECONDLY, IT IS CLEAR FROM THE DEFINITIONS OF DUTIES AND POWERS ADOPTED BY THE HIGH AUTHORITY ON 18 DECEMBER 1962 THAT AN OFFICIAL PERFORMING DUTIES IN GRADE A1 CAN ONLY BE RESPONSIBLE TO THE HIGH AUTHORITY ITSELF OR TO ITS WORKING PARTIES .
MOREOVER THE DEFINITIONS OF THE DUTIES IN CAREER BRACKET A2 SHOW THE DIRECTOR TO BE UNDER THE DIRECT AUTHORITY OF THE DIRECTOR-GENERAL AND, IN CERTAIN CASES, OF THE INSTITUTION AND THAT AN UNCLASSIFIED ADVISER IS REQUIRED TO ADVISE THE INSTITUTION OR A DIRECTORATE - GENERAL .
THIS SAME CONCEPT APPEARS THROUGHOUT THE DEFINITIONS OF DUTIES AND PLACES THE HOLDER OF A POST UNDER THE AUTHORITY OF THE OFFICIAL WHOSE BRACKET IS IMMEDIATELY SUPERIOR TO HIS OWN .
HOWEVER, THE EFFECT OF THIS SYSTEM CANNOT BE - AS IN THIS CASE - TO SUBORDINATE ONE OFFICIAL IN GRADE A1 TO THE AUTHORITY OF ANOTHER OFFICIAL IN THE SAME GRADE, AT LEAST WITHOUT HAVING OBTAINED THE AGREEMENT OF THE FORMER .
IT IS TRUE THAT UNDER THE TERMS OF ARTICLE 2 OF THE DECISION IN QUESTION THE APPLICANT REMAINS RESPONSIBLE FOR THE DUTIES DERIVING FROM THE AUTHORITY OF 12 MARCH 1963, IN THE PERFORMANCE OF WHICH HE IS DIRECTLY RESPONSIBLE TO THE HIGH AUTHORITY .
ALTHOUGH THESE DUTIES INVOLVE A WORKING RELATIONSHIP WITH THE DIRECTORATE-GENERAL FOR ECONOMY AND ENERGY, THEY DO NOT INCORPORATE THE APPLICANT INTO THIS DIRECTORATE-GENERAL OR SUBORDINATE HIM TO ITS DIRECTOR-GENERAL .
IT MATTERS LITTLE IN THIS CASE THAT, AS REGARDS THE DUTIES WHICH THE APPLICANT CONTINUES TO PERFORM BY VIRTUE OF THE AUTHORITY OF 1963, HE IS ONLY RESPONSIBLE TO THE INSTITUTION .
IN FACT, THE NEW DUTIES ASSIGNED TO HIM BY THE DECISION IN QUESTION CANNOT MERELY BE AN EXTENSION OF HIS EARLIER DUTIES IN GRADE A1, AS THEY ARE QUITE DISTINCT AND MUST, AS A RESULT OF THEIR IMPORTANCE, BE ASSESSED SEPARATELY .
THE SUBORDINATION OF THE APPLICANT TO ANOTHER OFFICIAL REPRESENTS A SUBSTANTIAL DIMINUTION OF HIS EARLIER STATUS .
BEFORE THE DECISION IN QUESTION WAS MADE THE APPLICANT WAS ONLY RESPONSIBLE TO THE HIGH AUTHORITY, WHILE AS A RESULT OF THIS DECISION HE HAS BECOME SUBORDINATE TO AN OFFICIAL IN HIS OWN GRADE .
FINALLY, THE DUTIES OF ASSISTANT TO THE DIRECTOR - GENERAL FOR ECONOMY AND ENERGY WERE AT THE SAME TIME ENTRUSTED TO MR CROS, AN OFFICIAL IN GRADE A2 .
THIS JOINT APPOINTMENT IS CONFIRMATION THAT IT WAS INTENDED TO DIMINISH THE AUTHORITY OF THE APPLICANT BY ASSIGNING TO HIM DUTIES CORRESPONDING TO GRADE A2, IN SPITE OF A CERTAIN IMPORTANCE ACCORDED TO HIM IN RELATION TO HIS COLLEAGUE IN GRADE A2, IN THAT THE APPLICANT IS ALONE EMPOWERED TO DEPUTIZE FOR THE DIRECTOR - GENERAL IN HIS ABSENCE .
THE ABOVE CONSIDERATIONS SHOW THAT THE DECISION IN QUESTION IS NOT MERELY AN INTERNAL MEASURE FOR THE ORGANIZATION OF THE DEPARTMENT, WHICH FALLS WITHIN THE SPHERE OF THE HIGH AUTHORITY'S DISCRETIONARY POWER, BUT THAT IT ADVERSELY AFFECTS THE RIGHTS HELD BY THE APPLICANT UNDER THE STAFF REGULATIONS BY REQUIRING HIM TO PERFORM DUTIES WHICH DO NOT CORRESPOND TO HIS POST AND GRADE .
THE APPLICATION IS THEREFORE ADMISSIBLE AND WELL FOUNDED .
Decision on costs
THE APPLICANT HAS BEEN SUCCESSFUL IN HIS APPLICATION .
UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE DEFENDANT MUST THEREFORE BE ORDERED TO PAY THE COSTS .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE - GENERAL;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC;
HAVING REGARD TO ARTICLES 5, 6, 7, 25, 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC AND ANNEX I THERETO;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES;
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE DECISION OF THE DEFENDANT INSTITUTION OF 2 DECEMBER 1964, NOTIFIED TO THE APPLICANT ON 16 DECEMBER 1964, BY WHICH HE WAS ATTACHED TO THE DIRECTORATE-GENERAL FOR ECONOMY AND ENERGY IN THE POST OF ASSISTANT TO THE DIRECTOR - GENERAL;
2 . ORDERS THE DEFENDANT TO PAY THE COSTS .