1.

Since the applicant principally argues against the implied rejection of his request of 16 July 1970 and since, as we have seen, this request was for a posting for Grade A3, the main issue of the proceedings is whether the Commission was justified in refusing to reclassify the applicant. As we know the applicant denies that it was so justified by referring to the principle, often emphasized in the decided cases, of the correspondence of posts and grades (Case 102/63 Boursin v High Authority [1964] ECR 691) and by arguing that he does in fact carry out the duties of an A3 official. The Commission replies that the applicant did not in fact carry out the duties relating to a higher post and that in addition, there is no decision of the appointing authority, which is indispensable according to the Staff Regulations. The important problems in the present case are now made clear. First, with regard to the formalities, it must straight away be stated that this is of real importance according to the decided cases. According to the decided cases in fact, both with regard to claims for compensatory payments for the temporary occupation of another post in accordance with Article 7 (2) of the Staff Regulations and with regard to claims for regrading, the actual performance of particular duties is in no way sufficient but it must be established that they were assigned to the official by the competent appointing authority. In this respect I rely on the judgment in Case 102/63 ([1964] ECR 691) and the judgment in Case 35/69 ([1970] ECR 609). We must therefore first of all examine this aspect with regard to the applicant. If only an express measure of the appointing authority could be considered, the answer would be short and simple: there is apparently no such measure and therefore the applicant's claim must be rejected for failure to fulfil a formal requirement. However we should further ask whether an implied posting to higher duties by the appointing authorities may be spoken of (assuming that this is sufficient to give rise to a claim under the Staff Regulations for a corresponding regrading). It must then be considered whether, after the departure of his colleague his duties necessarily devolved on the plaintiff as the appropriate replacement and that therefore Article 26 of the provisional Rules of Procedure of the Commission was applicable. That article provides: ‘Save as otherwise decided by the Commission, where any senior official is prevented from exercising his functions, his place shall be taken by the longest serving subordinate official present and, in the event of equal length of service, by the official who is the senior by age in the highest category and grade’. Closer examination revealed that these conclusions can hardly be drawn. The abovementioned provision is not suitable for application within a department which has a structure like the legal department of the Commission. The groups which are divided according to fields of responsibility (known as ‘équipes’) cannot in fact be described as administrative units with A2 officials in charge. Thus it is even less appropriate within such a group to speak of an A3 official being the superior of an A4 official. Moreover the Commission correctly states that, if application of the abovementioned Article 26 were at all to be considered in the context of the legal department, the whole department would have to be regarded as an administrative unit which would mean that, not the applicant, but a longer, serving A4 official would be in line for the automatic replacement. The Commission's reaction to the applicant's complaint through official channels might also be regarded as an implicit assignment of duties. However in the end this view must also be dismissed since it is quite clear from the express reply of the President, that the Commission was not stating its position on the question of the allocation of duties within the legal department but it merely stated that the responsibilities undertaken by the applicant corresponded entirely with his grade. It still remains to be asked whether the allocation of tasks undertaken by the Director-General of the legal department with regard to the applicant—the assignment to him of responsibility for all of the duties which were originally assigned to him and to the colleague who later went on leave—can be regarded as a measure taken by the Commission as the appointing authority, in the sense that this gives rise to consequences in the matter of classification. However that assumption may also not be. made. In this connexion, the fact, emphasized by the applicant, that the Director-General of the legal department is directly subject to the President of the Commission is irrelevant. Just as with the subordination of the other Director-Generals each to one Member of the Commission, this cannot be understood to mean that the President may be held responsible for the actions of the Director-General. In addition, it must not be forgotten that the Commission, not the President, is the appointing authority competent to deal with a situation such as this. In the same way I would regard it as incorrect to refer to an implied delegation of the powers of the appointing authority to the Director-General of the legal department within the meaning of Article 2 of the Staff Regulations on the grounds that, because of the particular structure of the legal department (with which I shall deal later) it is left to the Director-General to share out the work in the sense of assigning various spheres of work. One can certainly assume that this may only be done within the confines of the hierarchy established by the Commission itself, that is, according to the classification in the salary scale determined by the Commission. The Commission has thus not simply given away the power of organization in respect of the legal department and it was certainly not its intention to allow its power of decision on grading or promotion to be preempted by internal measures by the Director-General of the legal department. An assumption to the contrary could only be made if a clear and express delegation of powers existed which, however, is not the case. Therefore the applicant's request for a higher grading must be rejected in view of the fact that he cannot rely on the measure of the competent appointing authority assigning to him the duties exercised by him, which allegedly correspond to an A3 post. Rather than contending myself with this formal consideration which some might perhaps challenge, I would rather go into the substantive main point of the proceedings and therefore examine whether it can in fact be said that the applicant exercised the duties attaching to an A3 post. In this respect he relies mainly on the uncontested fact that he took over the full responsibilities of his colleague who had been promoted to Grade A3, when the latter went on leave. To see whether that is a sufficient basis for the applicant's claim we must first examine the way and means in which the posts within the legal department of the Commission are defined. Although we cannot refer to a general description of posts in this respect (which apparently does not exist) we can obtain a reliable picture from the occasionally published vacancy notices in which, as the Commission says, the progressive formation of the description of posts can be seen. The most important conclusion from this is that the posts are defined not according to the field of work involved but in a more general form, that is, in so far as the A3 and A4 posts relevant here are concerned, according to the level of responsibility which an official must be capable of assuming, according to the greater or lesser independence in dealing with legal matters, according to the latitude allowed to an official representing the Commission on committees, groups of experts or the permanent representatives, and also whether an official is asked to represent the Commission at a higher level of the hierarchy and in important cases before the Court of Justice. As the Commission says, it is in this sense that the differences in the vacancy notices are to be understood. (For A4 officials they refer to ‘carrying out the tasks of making studies and of supervision and in particular to take part in the study of all the legal problems which may arise either with regard to Treaties or in different national legislations’ while for officials in Grade A3 the notices mention that they will be called upon to ‘examine all the legal problems which may arise, either with regard to the Treaties or in the different national legislations in respect of the actions of the Commission’ and they must have had ‘practical experience of a legal nature of at least five years dealing inter alia with contentious matters’ — which is moreover a factor referred to for differentiating between career brackets in the second subparagraph of Article 5 (1) of the Staff Regulations.) In view of the explanations which we have heard on this point, it cannot be denied that this method of defining posts appears suitable for the particular characteristics of the legal department. It corresponds with the typical assignment of duties to lawyers who exercise in different fields similar advisory and defence activities which are only, distinguished by the degree of responsibility. To tie posts to certain subject-matters and to make corresponding differentiations would, on the other hand, in view of the difficulties of a just evaluation of the various matters and the inevitable overlapping, appear to create enormous problems. Since alterations in the assignment of work would necessitate the complicated procedure of transfer, it would also deprive the department of much of its flexibility, which, in view of the changing burden of work and of the variable nature of the tasks, is almost indispensable and which, according to the Commission, particularly in the lower grades of officials is in fact much used. It would be difficult to reconcile such an inflexible attachment to subject-matter with the sensible aim of having available to the legal department lawyers who can be called upon to undertake a variety of tasks. The abovementioned considerations have been primarily concerned with suitability, but, contrary to the view of the applicant, it furthermore cannot be said that the method of organization cannot be reconciled with the principles of the Staff Regulations. First, it can in no way be said that the fact that the officials in the differing grades are not placed in order of rank in the sense of an administrative hierarchy does not mean that a hierarchy of posts established was not established. As regards possible overlapping of spheres of duties, it has already been recognized in the decided cases as unavoidable and therefore in conformity with the Staff Regulations, (Case 28/64 Richard Müller v Council of the EEC and Council of the EAEC [1965] ECR 237). Moreover the provisions of the Staff Regulations, in particular Articles 1 and 4, in fact do not require such a far-reaching individual definition of posts as the applicant thinks necessary. It is not even referred to in Article 5 (4) which deals with the description of posts. This description can perfectly well remain general in nature as long as it only contains ‘descriptions of duties capable of serving as criteria of evaluation’, ‘particulars making it possible to clarify the description of a post’ which guarantee uniform classification of all grades adjudged to be of the same level in the same career bracket. ( 2 ) Thus even in this way, and without assuming that the Commission's description of posts which has been kept general in nature, was made more detailed by the internal measures of the Director-General of the legal department, the observance of important provisions of the Staff Regulations is guaranteed, in particular of Articles 1 and 7 (1), of Article 4 (in so far as it is in fact concerned with the filling of vacant posts), and also of Article 7 (2) (temporary filling of higher posts). While oh the one hand it must be admitted that the latter provision obviously is more rarely applied where the description of posts is in general terms, however in view of the exceptional nature of this provision it cannot be regarded as jeopardizing to any substantial degree the basic principles of the Staff Regulations. The same must also apply to the fact that in such a situation and in cases of a simple exchange of fields of work the provisions relating to transfer may hardly be brought to bear. Notwithstanding the case-law in Reinarz v Commission of the European Communities I do not see any danger in it chiefly because transfer decisions are in any case taken under discretionary powers and because, within the scope of a compact department it is quite possible to pay sufficient attention to the legitimate wishes of officials for a change in their sphere of work. In any case in these particular circumstances I see no grounds for stating that the application of the provisions of the Staff Regulations are discriminatory in comparison with other Directorates-General whose spheres of activity allow a different form of organization. In this respect it should not only be borne in mind that other departments as well, (Statistical Office, Spokesman's Group, Directorate-General for Competition) are organized in a similar fashion to the legal department, but it is necessary also to remember the advantages that officials in such departments may gain from this very flexible structure. Examining the applicant's claim to be classified in a higher grade in the light of these principles, it is immediately clear that it is without foundation. As I have already said, the applicant takes the view that the assignment to him of the duties in the field which he formerly covered jointly with a colleague necessarily implies giving him the duties of a post in Grade A3 as his colleague had been promoted to Grade A3 before going on leave while retaining the same responsibility. However this conclusion is only superficially convincing. Under the organization of the legal department as we know it the promotion did not in fact mean that the post of the colleague promoted was itself reassessed, and that the field in which he worked was valued more highly (which from the point of view of the applicant, would in 1968 already have given grounds for asking for a reassessment of his post which related to the same field of work). The applicant's colleague was effectively promoted to another post and was thereafter, generally speaking, ready to take over greater responsibilities. This is corroborated by the fact that the former post of the promoted officials was advertised as vacant, filled and the newly appointed official was assigned to another group within the legal department. It is possible, as the Commission's representative stated during the proceedings, that one relevant consideration with regard to the promotion was the idea of assigning the official to a different field of work (as was in fact done after his return from leave), and of only temporarily leaving him in the ‘Euratom & Research Group’ in view of his approaching leave. However this consideration is not decisive since the evaluation of the post is not made according to the area of work covered and because the promoted official therefore, even though his sphere of work remained unaltered, took over a higher post in view of the greater responsibility assigned to him. Thus the reference by the applicant to the field of work assigned to him is in itself of no value. However it is important moreover that since the applicant could not show that, after his colleague had gone on leave, the increased responsibility, that is, the discharge of duties in this field at the same level on all committees, devolved on time and since the Commission also states in this connexion that the Grade A2 official in charge of the group undoubtedly had to make greater use of his powers of leadership and supervision after the reduction in size of his team, then it must indeed be accepted that the applicant did not assume the duties attaching to a higher post and therefore has no right to have his classification connected. Therefore not only the formal considerations stated earlier but also important material reasons justified the Commission in rejecting the request made by the applicant.