OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 24 NOVEMBER 1966 ( 1 )

Mr President,

Members of the Court,

The applicant in the case in which I am today delivering my opinion entered the service of the Commission of Euratom on 25 November 1960. His initial salary amounted to 21000 Belgian francs, a sum which, according to the Commission, corresponded to a classification in Grade A 5 of the Staff Regulations of Officials of the European Coal and Steel Community. From the outset of his service the applicant was assigned to the Directorate-General for Administration where he performed the duties of Head of the Internal Services Department, a position which he still holds. The present action concerns the assessment of these duties according to the Staff Regulations of Officials and the definition of posts drawn up by the Commission.

I shall only make a few observations on the history of this action.

After the entry into force of the Staff Regulations a decision of the Commission of 5 March 1963 established the applicant as from 1 January 1962 in the post of Principal Administrator in Grade A 5, Step 2. On 8 July 1964 the applicant requested that in the light of the importance of his duties the President of the Commission should award him the differential allowance provided for in Article 7 (2) of the Staff Regulations. This request was not complied with. However, by a decision of 13 October 1964 the Commission promoted the applicant to Grade A 4, Step 1, as from 1 January 1964. After learning from information posted in the institution on 3 May 1965 that by decision of 8 April 1965 several officials (including two from the Directorate-General for Administration and one of his colleagues) had been promoted to Grade A 3, the applicant submitted to the Commission on 8 July 1965 a complaint through official channels pursuant to Article 90 of the Staff Regulations.

In this complaint the applicant requested that, having regard to the importance of his duties, he be classified in Grade A 3 with effect from 1 January 1962. This complaint, too, failed. It was dismissed by a decision of the President of the Commission of which the applicant was informed on 22 September 1965 by a letter from the Director-General for Administration in which he expressly emphasized that the assessment of the duties made in the decision of 5 March 1963 establishing the applicant remained unchanged. This led the applicant to institute legal proceedings. His appeal was filed on 13 December 1965 and in it he claims that you should:

— annul the decision of 22 September 1965 rejecting his complaint;

— declare that the Commission shall be bound to classify him in Grade A 3, Step 2, with effect from 1 January 1962 with advancement to those steps to which he is entitled as at 1 January 1964 and 1 January 1966 under Article 44 of the Staff Regulations;

— in the alternative: order the Commission to pay him damages in the form of the allowance provided for in Article 7 (2) of the Staff Regulations, calculated as from 1 January 1962, which the applicant: assesses at 100000 Belgian francs, without prejudice to any increased sum which may be claimed in the course of the proceedings.

The Commission reacted to this appeal on 17 January 1966 by submitting an application under Article 91 of the Rules of Procedure and asking the Court for a preliminary ruling on the admissibility of the appeal. The Chamber by order of 3 March 1966 reserved its decision on the admissibility of the appeal for the final judgment and the Commission supplemented its conclusions with an alternative request that the applicant's claims be dismissed as unfounded.

This is the case in which I have to give my opinion.

Legal Consideration

I — Questions of admissibility

1. The applications for annulment and for a declaratory judgment

Let me consider first the question of the admissibility of the application which is most important in relation to the applicant's principal conclusions. In these proceedings, too, the Commission considers that the applicant can now no longer argue his alleged claim to a higher grade. It had been open to the applicant to raise this question after he was informed of the integration decision of 5 March 1964. On the other hand, the decision which rejected his complaint of 8 July 1965 was merely a confirmatory measure which gave rise to no new possibility for bringing an application, since it had not been shown that new factors had arisen.

As we know, the applicant refers to the evidence of the Director-General, Mr Funck, in the case of Mosthaf v Euratom Commission and to his memorandum of 4 April 1963 in order to contend that the Commission has not yet made a final assessment of all the posts which might be classified in Grade A 3. It is clear, he says, that this assessment was not made in 1963, but at the latest in 1965. Thus, the assessment of the applicant's post made in the integration of 5 March 1963 was only provisional and could not give rise to a time-limit for an appeal. If, however, the integration decision were regarded as final, it would then be necessary to consider that the action undertaken by the Commission in 1965 to fill a group of posts in Grade A 3 constitutes a new factor within the meaning procedural requirements, as a result of which the applicant may again question the correctness of his classification. Mr Schreckenberg maintains that he did so in the required form and within the required period if time is deemed to run from the publication of the reclassification measures in question. If this is so, the decision taken by the Commission in reply to his complaint of 8 July 1965 cannot be regarded as a mere confirmatory measure.

You will remember that I have already given my opinion on all these questions in Case 34/65 so I can be brief in my arguments in this case.

I shall, therefore, merely point out that it is clearly impossible to maintain that the evidence given by the Director-General, Mr Funck, showed that a final assessment had been made of all the posts which might be considered for classification in Grade A 3. Although it is already extremely improbable that for several years the Commission left undecided important questions of status concerning a large number of officials, it is, furthermore, possible to discover not only in the evidence in question but also in the minutes of the meeting of the Commission of 22 January 1963 (which speak of a ‘general consideration of the classification of posts held by servants to whom the Staff Regulations apply’) substantial indications which run counter to the applicant's view. Consequently, as I have already explained, the evidence given by Mr Funck to the effect that the assessment of all those posts open to classification in Grade A 3 is not yet terminated, may reasonably be understood to mean that in the future in specific cases and in the context of the budget, it might be necessary to return to the assessment of certain posts (for example, where the duties involved therein had been modified). On the other hand, it does not appear possible to justify the admissibility of the present appeal on the basis of this evidence.

The memorandum of 4 April 1963 from the Director-General, Mr Funck, with which we are acquainted from Case 34/65 and which refers to a postponement of the assessment of the posts in Grade A 3 until a later date is also irrelevant as regards the question of admissibility. Apart from the fact that this memorandum only concerns those posts in Grade A 3 available during the financial year 1963 and, therefore, those classifications made in September 1963, the position of Mr Schreckenberg differs from that of the applicant in Case 34/65 in that no formal proposal exists to convert the applicant's post into a post in Grade A 3. Thus, unlike the Mosthaf case, there can be no question of considering whether the memorandum from Mr Funck also referred to the applicant's post and whether, at least as regards 1963, the classification of this post in the salary scale was not merely provisional.

It is therefore impossible to question the final nature of the classification decision adopted in relation to the applicant in 1963 and to justify in this way the admissibility of an appeal filed in 1965.

The remaining question is whether, as a result of new factors which had arisen, the applicant was justified in re-opening the question of the correctness of his classification. However, in accordance with the considerations which I developed in the Mosthaf Case, this was no longer possible. In the case-law of the Court it has been established for a long time that judgments given in actions concerning similar problems but other parties cannot be regarded as new factors. Similarly, the adoption of the definition of posts drawn up by the Commission cannot be regarded as a new factor, since it was prepared more than two years before the appeal was brought. There is no question in this case of a change in the administrative practice of the Commission as regards the assessment of posts in Grade A 3, a circumstance which could be regarded as a new factor, for the following reasons. Even if (as certain facts seem to indicate) the measures taken by the Commission in this field during the years 1963, 1964 and 1965 were intended to represent not only promotions but also corrections in grading, they could still not be evidence of an administrative practice sufficiently widespread and general to be regarded as a new factor within the meaning of the Rules of Procedure of the Court. As far as we know, several specific cases have been re-examined, but they do not amount to a fundamental change in the administrative practice of the Commission. If, however, this action were to be accepted as a general administrative practice, the decisive factor in this instance would be that it was already employed in 1963 and 1964 and not merely in 1965. Thus, in 1963 and 1964 the applicant would already have had grounds for requesting the Commission to reconsider his reclassification. On the other hand, the fact that the classifications made in 1965 had affected even the administrative unit in which the applicant worked and (according to him) represented the final stage in the reclassification procedure, cannot revive a right of action which is already extinct.

As a result, it appears that the conclusions seeking annulment are inadmissible, even if all the circumstances of the case are considered as favourably as possible. This also applies to the alternative conclusions based on those in favour of annulment, which seek a declaratory judgment. To this extent the appeal must therefore be dismissed as inadmissible.

2. The claim for damages

However my examination of the subject matter of the dispute is still incomplete. It is precisely in case the application for annulment and for a declaration should be dismissed, that is, if he could no longer claim a correction in his classification, that the applicant claims damages equal to the amount of the differential allowance calculated in accordance with Article 7 of the Staff Regulations of Officials. In this way his financial position will correspond to the actual value of his services.

The Commission considers that this claim too is inadmissible. It points out that it is not possible to bring a claim for damages in order to attain a financial objective which cannot be achieved by means of an application for an alteration of the applicant's rights (‘Gestaltungsklage’). On this point it refers to the judgment in Case 25/62 in which, on similar facts, the Court declared that an administrative measure which has not been annulled could not in itself constitute a wrongful act or omission and that a claim for damages could not remove the legal consequences of the decision which has not been annulled. In my opinion the Commission's argument on this point must in the final analysis be accepted.

Of course (as I have already emphasized on several occasions) the statement made in the abovementioned judgment is too general and can consequently be criticized, particularly as the EEC Treaty did expressly formulate a similar principle to that laid down by Article 34 of the ECSC Treaty. I also consider that it cannot be maintained that in drawing up the Staff Regulations the Council wished to depart from the general provision concerning the limitation of actions arising from non-contractual liability provided for by the Statute of the Court of Justice of Euratom (Article 44) and to state that claims for damages brought by oficials on the basis of measures capable of annulment must be brought within the period of three months laid down in Article 91 of the Staff Regulations. The result sought by the Commission may, however, be attained by applying a similar principle to that provided for in paragraph 839 of the German Civil Code for actions concerning a wrongful act or omission. Subparagraph 3 states that ‘There shall be no obligation to pay compensation where the injured party has intentionally or negligently failed to use the legal remedies available in order to avoid the damage’. If this idea is applied to the case before us it must be concluded that where it is possible for the party concerned to remove certain legal consequences by means of an application for annulment and he lets the opportunity lapse, he is no longer entitled to pursue the same object, or a substantial part of it, by means of an action for financial compensation. It is of secondary importance to know whether the question in this instance is strictly speaking one of the liability of the two parties, that is to say, of the substance of the claim, or one which concerns the admissibility of the appeal. In my opinion, in such a case the application may be dismissed as inadmissible. In the present case, this means that the applicant cannot seek to obtain by means of complaints based on the liability of the administration an objective which, owing to the expiry of the limitation period in question, he can no longer obtain by means of the primary application for annulment.

I am therefore of the opinion that this appeal must be dismissed as inadmissible in its entirety.

As I am dealing with rather difficult questions concerning the admissibility of the appeal, I shall depart from my usual practice and not bring my consideration of the facts to a close at this point, but shall by way of a secondary consideration investigate the substance of the case to see whether the applicant's claims concerning his classification are justified.

II — The substance of the case

As in the Mosthaf Case, the applicant argues that in view of the level of the duties entrusted to him by the appointing authority, which have remained essentially unchanged since 1 January 1962, he must be classified in Grade A 3 in the capacity of Head of Division. We may recall, too, from the Mosthaf Case how the duties of Head of Division are described in the definition of posts drawn up by the Commission on 13 March 1963. According to this definition, the important point is whether the official concerned directs an administrative unit under the authority of a Director in a specialized sector. On the other hand, a Principal Administrator in Grade A 5 — A 4 (the applicant's present career bracket) is defined as follows: Head of one particular sector of activity in a Division or Head of a specialized department.

I have already observed that these definitions provide very little information on which the classification can be reviewed and that, consequently, the Commission must be acknowledged to have a wide discretionary power, at least as regards the higher grades in Category A. The Court cannot substitute its own assessment for that of the administration, but may only check whether factors exist which enable it to be said that in a given case the duties conferred on the author of the complaint have been underassessed.

Let us see how the present case appears in the light of these principles.

Unlike the Mosthaf Case, it might give the impression of being easily settled (to the detriment of the applicant), since it is clear that in this instance one condition concerning the administrative hierachy is not fulfilled: the subordination of the applicant to a Director. In fact, the applicant's administrative unit is answerable to an official who only holds Grade A 3, that is, according to the classification made by the Staff Regulations, to a Head of Division, and it appears that this official has so far made no active attempt to seek reclassification in his own case.

In my opinion too much importance should not be attached to this point of view, not for the reasons put forward by the applicant, who claims that in a document drawn up in 1960 (EUR-/C/3840/1/60) the administrative unit in question is expressly described as a Directorate, that the same designation appears in a document known as the ‘detailed list of posts’ and that in the ‘Guide des Communautés Européennes’ of 1965 (page 163) the name of his superior is printed in the same letters as that of the other Directors. It is clear that these factors are not decisive. Either they relate to a period during which the Commission was unable to act on the basis of Staff Regulations in determining its organization, or they are unofficial, in that (like the Guide des Communautés) they were only prepared by the documentation centre as a list indicating the officials and their duties, or (like the detailed list of posts) they were prepared by the ‘Directorate’ for Administration itself. I consider that great importance need not be attached to the formal aspect of this question, as in my opinion it is quite probable that errors of classification and organization occur regularly in several grades. For these reasons, I must extend my consideration of the problem to other points of view, in order to form a clear opinion of the level of the applicant's duties. In doing so, I have, however, to acknowledge at once that among all the various arguments put forward by the applicant are certain observations which are of little value in assessing the position.

— Thus I consider that it is not important that the applicant's integration report of 17 June 1962 refers to his administrative unit as a division. This report was prepared by one of his superiors and only counter-signed by a single member of the Commission, which is evidence that the appointing authority has made no such official designation of the applicant's administrative unit. Moreover, the Commission maintains that the applicant's superiors sometimes described his administrative unit as a ‘department’ (‘Referat’). If the description had been employed each time in a technical sense, their proposal to classify the applicant in Grade A 5 would be incomprehensible. The decisive factor in this context must be that the competent appointing authority dealt with the proposal before it by classifying the applicant in Grade A 5.

— Furthermore I am also unable to accept the applicant's conclusion that the Commission has in principle acknowledged his point of view to be correct, as it did not refute point by point the arguments in his complaint concerning the definition of his duties and their importance, in particular in comparison with those of other officials. In fact, the categorical rejection of the applicant's claims must also be regarded as a refusal to accept the arguments which he had put forward. The only acceptable conclusion (the representative of the Commission did not dismiss it during the oral proceedings), is that the statement of the duties actually performed by the applicant is largely accepted (at least to the extent that the details have not been challenged). This does not, however affect the assessment of these duties according to the definition of posts. Therefore, rather than spend time considering the two arguments which I have mentioned, let me deal with the comparisons made by the applicant regarding the assessment of the duties of one of his colleagues and the activities of officials of the EEC Commission and of the High Authority.

— We know that Mr Schreckenberg's principal reason for bringing the appeal is that in 1965 another official in the Administration department was promoted to Grade A 3, although until then he had been in the same grade as the applicant. The applicant places particular importance on a comparison of the assessment made of his duties and those of this official. At this point we immediately see the problems caused by such comparisons when they refer to duties of a different type. Although the applicant's colleague is essentially responsible for questions concerning salaries and allowances, the applicant's Internal Services Department includes other duties, (I will not go into all the details) such as questions concerning buildings (rent, purchase, upkeep), the powers to order and make payment of budgetary expenses for administration and research, purchase and stocking of office equipment, transport, technical installations (telephone, telex, interpreting equipment) messages and duplication, the typing pool and purchases and equipment concerning the welfare of the staff. I have already emphasized in the Mosthaf Case that in order to determine the relative importance of these duties the number of subordinates of the various officials cannot be decisive. It is for this reason that in this instance I cannot draw any conclusion from the fact that, on the entry into force of the Staff Regulations, 178 people were answerable to the applicant and that now this number has risen to 237, whilst his colleague has only 31. The numerical element becomes even less important when one considers that 12 officials in Category B are answerable to the applicant's colleague, whilst only 8 are answerable to the applicant (the remaining staff in the applicant's department belong to Categories C and D). Furthermore, however, when on the subject of the relative value of the duties performed the Commission emphasizes that questions concerning the salaries and allowances (including the tax problems) of all the staff of the Commission at Brussels and in the other places of employment of servants of the Commission constitute a more difficult task meriting a higher classification than those which for some time the applicant has at least recently only performed at the Centre, I do not see how the objective nature of this distinction can be criticized. Thus, a comparison with the legal position of the colleague who has been promoted cannot make the applicant's classification appear as an abuse of discretionary power.

— It might be more useful on the other hand to compare the applicant's position with that of officials in other institutions who (according to him) perform largely the same duties. In this respect, however, his general argument to the effect that duties have always been undervalued by the Euratom Commission does not merit profound consideration, since it is only supported by vague statements in a communication from the Staff Committee of 7 June 1966, which is itself referring to the first conclusions of a working party on the harmonization of classifications. On this point, the applicant refers in particular to the position of Mr Maudet who was entrusted with the same duties (or even with lesser duties) at the Commission of the EEC and who had been rightly classified in Grade A 3 following the judgment of the Court.

If this comparison were correct the applicant would have found an important argument to support his claim, even if it is considered that the administrative practice of one institution cannot always be binding on the others. However, one impression stands out from the contradictory statements made in the course of the proceedings: that the Commission has shown certain important differences to exist between these two cases which I cannot simply neglect to consider. It is clear from the documents which have been produced that from January 1962 questions concerning the insurance of buildings were no longer the responsibility of the applicant. We have seen also that as regards the purchase of equipment for the Euratom Commission, at least as regards contracts for important purchases, a special purchasing department has been introduced to which the applicant is not entitled to give instructions. The most significant factor is, however, that the duties and powers of the official of the EEC Commission referred to above concern the entire administrative machinery of the Commission, while at least since 1964 (there was no decentralization during the early years of the establishment of the research centres) the applicant has dealt mainly with the administration of the central organization in Brussels and no longer with that of the research centres.

I consider that these differences in the extent of powers cannot be compensated for by the fact that the applicant was entrusted with additional duties which were not performed at the Commission of the EEC by Mr Maudet but allegedly by several other officials in Grade A 3. As is shown by the table drawn up by the applicant himself, (cf. Schedule 8 to the document of 28 October 1966), taking into account the necessary corrections made by the Commission, the officials of the EEC Commission in question have further important powers which the applicant does not have, which are capable of justifying classification in Grade A 3 (for example, the official of the EEC responsible for the messenger and security service is also responsible for records and mail, the official in charge of the central typing pool of the EEC is also responsible for the translation department and, finally, at the EEC Commission, the official responsible for the organization of conferences, meetings, and receptions is additionally responsible for simultaneous interpretation). However, as regards the other officials referred to in this connexion, it is clear that either they only hold Grade A 4 (such as the official who is not only entrusted, like the applicant, with tax-free purchases and questions concerning the staff stores, but also with other important additional duties), or they only hold Grade A 5 (such as the official responsible at the Commission of the EEC for settlement of the accounts concerning the purchase of equipment and dealing with the secretarial department of the purchasing committee), which renders it impossible for any valid comparison to be made with the applicant's position.

A similar picture emerges from a comparison with the position in the European Coal and Steel Community and the value of this comparison is necessarily much reduced since the administration of the High Authority is organized on a different basis. On this point also, the account given by the applicant (in spite of the fact that it incomplete) shows the important differences between his sphere of activity and that of the officials involved in the comparison. In particular, we find that in addition to those duties performed by the applicant several officials of the High Authority also perform important duties capable of justifying a higher classification. Thus, the official who can best be compared to the applicant is also responsible for the translation department, purchases and the organization of conferences. The official in charge of the messengers is also responsible for records, post and library and documentation services. The official responsible for the duplication department also performs duties concerning the publication of the Official Journal and, finally, the official in charge of the central typing pool is also competent to deal with questions concerning competitions, transfers and the training of officials.

Quite apart from the above, I consider that the applicant has not shown convincingly that, unlike the officials with whom he compares his position, the importance and difficulty of execution of his duties are such as clearly to warrant classification in Grade A 3. This applies to his alleged participation in the preparation of budgetary estimates and requests for reports on credits which, according to the Commission, merely consist of collecting data. The final approval of these measures is in fact given by the Directorate-General for Finance which also is ultimately responsible for checking and paying accounts. It also applies to certain powers to make orders for payment delegated to the applicant by the Director-General for Administration on 9 April 1965, which are unlimited as regards the administrative budget but as regards the research budget are limited in the same way as those delegated to other officials in Grades A 1 — A 3. The objection put forward by the Commission is important in this respect: this is that these other officials have important additional duties which play a primary role in determining their rank. The applicant's power to make orders for payment only concerns the central administration at Brussels (and not the administration of the research centres) and, as is clear from the corresponding sections of the budget, only concerns routine matters, while the applicant's superior must intervene in important transactions. Finally, this also applies to the organization of conferences, meetings and receptions: the Commission has shown that the applicant is only responsible for their material organization (making available equipment and staff) while the planning itself is entrusted to an official from the Executive Secretariat who only holds Grade A 5.

Although in the light of the above I have to admit that the applicant performs many importants duties which imply responsibility for considerable sums, it cannot be said that the evidence he has brought, in particular his attempts to compare his position with that of other officials, shows the Commission's assessment of his post to be an abuse of discretionary power.

Thus, without the need to hold any preparatory inquiry, we must conclude that the applicant could not be successful in his claims concerning classification. For this reason the appeal would have to be dismissed as unfounded if it were not already inadmissible.

It is obvious that this applies both to the conclusions seeking annulment and a declaration and to the claim for damages, which is also dependent on proof that the applicant was wrongly classified.

III — Conclusion

I am therefore of the opinion that the appeal should be dismissed as inadmissible in its entirety and in any event unfounded. In accordance with Article 70 of the Rules of Procedure each party must bear its own costs.

( 1 ) Translated from the German.