61963CJ0102_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 102/63
JACQUES BOURSIN, AN OFFICIAL OF THE HIGH AUTHORITY OF THE ECSC, REPRESENTED AND ASSISTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D'APPEL, BRUSSELS, HEAD OF DEPARTMENT AT THE UNIVERSITY OF BRUSSELS, RESIDENT AT BERELDANGE, 63 RUE DE LUXEMBOURG ( GRAND DUCHY OF LUXEMBOURG ), APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, 2 PLACE DE METZ, LUXEMBOURG, REPRESENTED BY ITS LEGAL ADVISER PIERRE LAMOUREUX, ACTING AS AGENT, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF DECISIONS RELATING TO THE APPLICANT'S CAREER,
Grounds
A - THE NAMING OF THE ECSC AND THE COMMITTEE OF PRESIDENTS AS DEFENDANTS
THE APPLICANT NAMED AS DEFENDANT IN HIS APPLICATION NOT ONLY THE HIGH AUTHORITY OF THE ECSC BUT ALSO THE ECSC ITSELF AND, AS FAR AS NECESSARY, THE COMMITTEE OF THE FOUR PRESIDENTS REFERRED TO IN ARTICLE 78 OF THE ECSC TREATY .
AS FAR AS THE NAMING OF THE EUROPEAN COAL AND STEEL COMMUNITY AS A PARTY IS CONCERNED, ARTICLE 90 OF THE STAFF REGULATIONS, WHICH GOVERNS THE PROCEDURE FOR THE SUBMISSION OF COMPLAINTS TO THE APPOINTING AUTHORITY PRIOR TO THE INITIATION OF LEGAL PROCEEDINGS, PROVIDES THAT ANY OFFICIAL MAY SUBMIT HIS COMPLAINT TO THE APPOINTING AUTHORITY OF HIS INSTITUTION . IN THE ABSENCE OF PROVISIONS TO THE CONTRARY AN APPEAL TO THE COURT UNDER ARTICLE 91 OF THE REGULATIONS MUST BE GOVERNED BY SIMILAR RULES AND BE DIRECTED AGAINST THAT SAME INSTITUTION .
IN VIEW OF THE NATURE OF THE DUTIES ASSIGNED TO THE COMMITTEE OF THE FOUR PRESIDENTS BY ARTICLE 78 OF THE TREATY, MEASURES ADOPTED BY IT ARE ONLY CAPABLE OF PRODUCING LEGAL EFFECTS AS REGARDS SERVANTS OF THE COMMUNITY BY MEANS OF DECISIONS OF THE INSTITUTIONS ON WHICH SUCH MEASURES ARE BINDING . THE LEGALITY OF MEASURES ADOPTED BY THE COMMITTEE OF PRESIDENTS MAY ONLY BE QUESTIONED THROUGH SUCH INSTITUTIONS .
CONSEQUENTLY, IT IS NECESSARY TO EXCLUDE, BEFORE PROCEEDING TO ANY FURTHER EXAMINATION, THE POSSIBILITY OF ADMITTING ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITY AGAINST THAT COMMITTEE, AND IT IS NOT NECESSARY TO DECIDE THE QUESTION WHETHER THE LATTER HAS THE CAPACITY UNDER COMMUNITY LAW TO BE A PARTY TO LEGAL PROCEEDINGS .
IN THE CIRCUMSTANCES THE APPLICATION MUST BE CONSIDERED ONLY AS DIRECTED AGAINST THE HIGH AUTHORITY OF THE ECSC .
B - PRESERVATION OF THE APPLICANT'S CAREER PROSPECTS
ADMISSIBILITY
THE APPLICANT REQUESTS THE ANNULMENT OF THE DECISION OF REFUSAL CONTAINED, HE ALLEGES, IN THE NOTE OF 17 OCTOBER 1963 SIGNED BY THE VICE-PRESIDENT OF THE HIGH AUTHORITY . THE DEFENDANT OBJECTS THAT THIS REQUEST IS INADMISSIBLE, SINCE THE MEASURE CHALLENGED DOES NOT IN ITS OPINION CONSTITUTE A DECISION .
THE ARGUMENTS PUT FORWARD BY THE DEFENDANT IN SUPPORT OF THIS OBJECTION, HOWEVER, ARE BASED ON THE DENIAL OF ANY RIGHT VESTED IN THE APPLICANT TO A CAREER IN BRACKET A3, PRINCIPALLY ON THE GROUND THAT NEITHER UNDER THE OLD REGULATIONS NOR UNDER THE NEW ARE COMMUNITY SERVANTS ENTITLED AS OF RIGHT TO BE ESTABLISHED IN A POST WHICH THEY OCCUPY TEMPORARILY . THESE ARGUMENTS TOUCH ON THE SUBSTANCE OF THE CASE AND THEREFORE THIS OBJECTION CANNOT BE UPHELD UNTIL SOME EXAMINATION HAS BEEN MADE OF THE SUBSTANCE .
THE DEFENDANT FURTHER OBJECTS THAT THE REQUEST IS INADMISSIBLE BECAUSE IT IS OUT OF TIME . THE APPLICANT WAS NOTIFIED OF THE DETERMINATION OF HIS POSITION WITHIN THE ADMINISTRATION AND HIS CAREER BRACKET UNDER THE NEW REGULATIONS BY A NOTE SENT TO HIM ON 23 JANUARY 1963 . IT APPEARS FROM THIS NOTE THAT THE APPLICANT'S CAREER BRACKET WAS RESTRICTED TO GRADES A4 AND A5 . THEREFORE, EVEN THOUGH THE LETTER SENT ON 28 JANUARY 1963 BY THE APPLICANT TO THE PRESIDENT OF THE HIGH AUTHORITY IS CAPABLE OF CONSTITUTING A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE REGULATIONS, AND THOUGH THE NOTE OF 7 FEBRUARY 1963 SIGNED BY THE DIRECTOR OF PERSONNEL CANNOT AMOUNT TO AN ADEQUATE REPLY TO THIS COMPLAINT, THE TIME-LIMIT FOR INITIATING PROCEEDINGS BEFORE THE COURT AGAINST THE IMPLIED DECISION OF REFUSAL UNDER ARTICLE 91 OF THE STAFF REGULATIONS HAD ALREADY EXPIRED WHEN THE PRESENT APPLICATION WAS LODGED .
THE APPLICANT FURTHER CLAIMS THAT, SINCE THE REGULATIONS WERE DRAWN UP BY A BODY WHICH, AFTER THE EXPIRY OF THE TIME-LIMIT PROVIDED FOR BY PARAGRAPH 7 OF THE CONVENTION, LACKED THE NECESSARY POWERS, THEY WERE THEREFORE VOID IN LAW, SO THAT THE TIME-LIMIT FIXED BY ARTICLE 91 OF THE REGULATIONS DOES NOT APPLY .
THIS OBJECTION CANNOT BE UPHELD . PARAGRAPH 7 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS, FAR FROM ITSELF CONFERRING POWERS RELATING TO THE REGULATIONS ON THE COMMITTEE OF PRESIDENTS, PRESUPPOSED THE EXISTENCE OF SUCH POWERS .
IT IS USUAL AND IN ACCORDANCE WITH THE PROPER FUNCTIONING OF ANY ADMINISTRATION THAT A BODY WHICH HAS POWER TO ADOPT REGULATIONS IN A PARTICULAR FIELD SHOULD LIKEWISE HAVE THE POWER TO AMEND THEM . THEREFORE, ARTICLE 62 OF THE REGULATIONS DRAWN UP IN 1956 BY THE COMMITTEE OF PRESIDENTS AND APPLIED BY THE HIGH AUTHORITY, PROVIDING THAT THE COMMITTEE SHALL HAVE THE POWER TO MAKE AMENDMENTS, SUBJECT TO CERTAIN CONDITIONS, TO THE REGULATIONS, MUST BE CONSIDERED LAWFUL .
IN THOSE CIRCUMSTANCES ARTICLE 91 OF THE NEW REGULATIONS APPLIES TO THE APPLICANT, AND THE SAID REQUEST MUST BE HELD INADMISSIBLE BECAUSE IT IS OUT OF TIME .
C - ADMISSIBILITY OF THE SECOND HEAD OF THE PRINCIPAL CONCLUSIONS AND THE SECOND HEAD OF THE SUBSIDIARY CONCLUSIONS
IT IS CLEAR FROM THE ABOVE THAT QUITE APART FROM ANY OTHER CONSIDERATION THE APPLICANT'S REQUESTS FOR THE ANNULMENT, AS FAR AS NECESSARY, ON THE ONE HAND, OF ARTICLE 5 ( 4 ) AND OF ANNEX I TO THE STAFF REGULATIONS AND, ON THE OTHER HAND OF THE DECISION OF 5 SEPTEMBER 1962, BY WHICH HE WAS INTEGRATED, IN SO FAR AS IT CLASSIFIES THE APPLICANT IN GRADE A4, ARE INADMISSIBLE BECAUSE THEY ARE OUT OF TIME .
D - CORRESPONDENCE BETWEEN DUTIES AND GRADE
1 . ADMISSIBILITY
IN SUPPORT OF THE FIRST HEAD OF HIS SUBSIDIARY CONCLUSIONS, THE APPLICANT CLAIMS THAT THE DUTIES EXERCISED BY HIM IN ACCORDANCE WITH THE INSTRUCTIONS GIVEN BY HIS DIRECTOR-GENERAL, BOTH BEFORE AND AFTER HIS INTEGRATION UNDER THE NEW STAFF REGULATIONS, CORRESPOND TO THOSE OF AN ADVISER IN GRADE A3, ACCORDING TO THE DEFINITION OF DUTIES AND POWERS DRAWN UP BY THE HIGH AUTHORITY . CONSEQUENTLY, HE CLAIMS THAT HE IS ENTITLED TO BE RECLASSIFIED IN THAT GRADE .
THE DEFENDANT CONTENDS THAT THIS REQUEST IS INADMISSIBLE BECAUSE IT IS OUT OF TIME, ON THE GROUND THAT WHILE MADE IN THE FORM OF AN APPLICATION AGAINST THE NOTE OF 17 OCTOBER 1963, IT IS IN REALITY AIMED AT THE DECISION INTEGRATING THE APPLICANT NOTIFIED TO HIM ON 21 SEPTEMBER 1962 AND THE DECISION FIXING HIS POSITION WITHIN THE ADMINISTRATION NOTIFIED TO HIM ON 23 JANUARY 1963 .
THIS OBJECTION CANNOT BE UPHELD . ONLY BY REFERRING TO THE DEFINITION OF DUTIES AND POWERS DRAWN UP BY HIS INSTITUTION WAS THE APPLICANT ABLE TO BECOME FULLY AWARE OF THE CORRESPONDENCE BETWEEN THE FUNCTIONS EXERCISED BY HIM AND A GIVEN BASIC POST .
THE DEFENDANT FURTHER CONTENDS THAT IN THE NOTE OF 29 JULY 1963 THE APPLICANT MADE NO REQUEST TO BE RECLASSIFIED IN GRADE A3 . HE COULD NOT THEREFORE HAVE ELICITED FROM THE HIGH AUTHORITY IN THIS MATTER ANY DECISION CAPABLE OF FORMING THE SUBJECT-MATTER OF AN APPEAL UNDER ARTICLE 91 OF THE STAFF REGULATIONS .
IT IS TRUE THAT IN HIS ABOVE-MENTIONED NOTE THE APPLICANT ONLY REQUESTED AS A SUBSIDIARY POINT, AND IN VERY VAGUE TERMS THAT HIS POST OF ADMINISTRATOR BE CONVERTED INTO A POST OF ADVISER . HOWEVER, THE DEFENDANT WELL UNDERSTOOD THE TRUE IMPORT OF THIS PROPOSAL, AS IS EVIDENT FROM THE REPLY GIVEN BY THE HIGH AUTHORITY IN THE NOTE OF 17 OCTOBER 1963 AND FROM THE REASONS GIVEN IN IT FOR THE IMPOSSIBILITY OF CONVERTING THE APPLICANT'S POST AS HE HAD REQUESTED .
THIS OBJECTION OF THE DEFENDANT MUST THEREFORE LIKEWISE BE REJECTED .
2 . THE SUBSTANCE
THE AIM OF THE PRINCIPLE OF THE CORRESPONDENCE BETWEEN DUTIES PERFORMED AND THE GRADE WHICH FORMS THE BASIS OF ANNEX I TO THE REGULATIONS AS ALSO OF ARTICLE 5 REFERRING TO THE DEFINITION OF DUTIES AND POWERS DRAWN UP BY EACH INSTITUTION, IS ON THE ONE HAND TO AVOID INEQUALITY OF TREATMENT BETWEEN OFFICIALS TO WHOM DUTIES OF A COMPARABLE NATURE HAVE BEEN VALIDLY ASSIGNED, AND ON THE OTHER HAND TO ENSURE THAT NO OFFICIAL IS REQUIRED TO GIVE SERVICES WHICH DO NOT FALL WITHIN THE DEFINITION OF THE DUTIES ATTACHING TO HIS POST .
THAT IS WHY, IN THE CASE REFERRED TO BY THE APPLICANT THE COURT ANNULLED THE REFUSAL BY THE APPOINTING AUTHORITY TO CLASSIFY AN OFFICIAL IN A GRADE WHICH CORRESPONDED TO THE DUTIES FOR THE PERFORMANCE OF WHICH HE HAD BEEN EXPRESSLY ENGAGED AND WHICH HAD BEEN EXERCISED BY HIM WITHOUT INTERRUPTION IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE-MENTIONED AUTHORITY, BOTH BEFORE AND AFTER HIS INTEGRATION UNDER THE STAFF REGULATIONS .
ON THE OTHER HAND, THIS PRINCIPLE CANNOT BE APPLIED IN SUCH A MANNER AS TO OBLIGE THE APPOINTING AUTHORITY TO ACCORD ITS OFFICIALS A GRADE OTHER THAN THAT WHICH, ACCORDING TO ANNEX I AND THE DEFINITION REFERRED TO IN ARTICLE 5, CORRESPONDS TO THE BASIC POST TO WHICH IT HAS NOT ONLY FORMALLY APPOINTED THEM, BUT ALSO IN FACT INTENDED THEM TO FILL . ANY OTHER CONCLUSIONS WOULD MEAN THAT EVERY TIME A HEAD OF DEPARTMENT TOOK IT UPON HIMSELF WITHOUT AUTHORITY TO GIVE HIS SUBORDINATES DUTIES TO PERFORM WHICH, ACCORDING TO THE SCALE OF POSTS, RELATED TO A POST HIGHER THAN THAT TO WHICH THE EMPLOYEE HAD BEEN APPOINTED, A FACTUAL SITUATION MIGHT ARISE WHICH WOULD BE BINDING ON THE APPOINTING AUTHORITY WHILE NOT INTENDED BY IT .
IN THE PRESENT CASE, WHATEVER THE NATURE OF THE DUTIES THE APPLICANT MIGHT HAVE BEEN ASKED TO PERFORM BY HIS DIRECTOR-GENERAL, IT IS CLEAR THAT THE DEFENDANT NEVER AUTHORIZED THE APPLICANT TO BE DIRECTLY ATTACHED TO THE LATTER . ON THE CONTRARY, IT SHOWED EVIDENCE OF THE OPPOSITE INTENTION ON SEVERAL OCCASIONS .
CONSEQUENTLY, THE APPLICANT CAN HAVE NO LEGITIMATE CLAIM TO BE RECLASSIFIED IN GRADE A3 .
E - THE CLAIM FOR DAMAGES
THE APPLICANT ASKS THAT WHATEVER THE OUTCOME OF THE CASE THE DEFENDANT BE ORDERED TO PAY NON-MATERIAL DAMAGES OF, PROVISIONALLY, ONE FRANC . HOWEVER, THE APPLICANT HAS IN NO WAY EXPLAINED IN WHAT RESPECT HE HAS SUFFERED NON-MATERIAL DAMAGE . MOREOVER, IT HAS BEEN ESTABLISHED THAT HE HAD NO RIGHT TO BE RECLASSIFIED IN GRADE A3 .
THEREFORE THIS CLAIM MUST BE DISMISSED .
Decision on costs
UNDER ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN ACTIONS BY SERVANTS OF THE COMMUNITIES .
UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
SINCE THE APPLICANT HAS FAILED IN ALL HIS SUBMISSIONS, HE MUST PAY HIS OWN 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 ARTICLE 78 OF THE TREATY ESTABLISHING THE ECSC AND PARAGRAPH 7 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS ANNEXED TO THAT TREATY;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC;
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES APPLICATION N . 102/63;
2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .