OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 16 JUNE 1965 ( 1 )

Mr President,

Members of the Court,

Mr Götz Schoffer was engaged by the Commission of the EEC with effect from 1 May 1959 as assistant to the Director-General of External Relations. He was classified in Grade A4, Step 1, in accordance with a decision of a general nature, taken on the previous 23 April by the Commission, under which these servants would in principle—and subject to the proviso that positions already obtained would not be affected—be classified in career bracket A5-A4.

During the integration procedure he was maintained in his previous duties and was established with effect from 1 January 1962 in Grade A4, Step 2. Notice of the decision to this effect was given to him at the latest in February 1963.

On 19 June 1964 he submitted a request to the Commission based on Article 90 of the Staff Regulations. He maintained that the nature of the duties of assistants of Directors-General justified their being classified in Grade A3. And, relying on the principle established by you in the Maudet judgment of 19 March 1964, he asked to be reclassified in this grade as from the effective date of his establishment. Having received an interim reply on 8 September, he lodged an application on 16 October 1964 at the Court Registry. He asks you to nullify the implied decision of rejection taken in respect of him and rule that the Commission should give effect to his request.

A — Admissibility

Both in the written procedure and during the oral proceedings, the defendant institution has raised the objection of inadmissibility against the applicant saying that his application calls in question a classification which, not having been contested in due time, was already finally settled when he made the request of 19 June 1964. The implied decision of rejection, which came about through the attitude taken by the Commission on this request, merely confirmed the decision fixing the classification, and could not therefore cause the period for lodging an appeal to start to run afresh.

Mr Schoffer replies to this objection of inadmissibility that the very nature of his request is such that it cannot be time-barred. The administration is under the permanent obligation to classify the servants whom it employs according to the conditions laid down in Article 5 of the Staff Regulations. Therefore this obligation is not limited in time nor, which follows logically, is an application which could arise from decisions not in conformity with that obligation. It is difficult to reconcile this reasoning with the scheme laid down in Article 91 which says that in disputes between the Community and its staff appeals shall be filed within a period of three months. This period begins on the date of notification of the decision to the person concerned in the case of an individual, in this case the decision to make a classification, which was notified in February 1963 at the latest. The reason for this is that the rule in Article 91 is of general application and applies whatever the decision at issue.

In principle the decision may no longer be contested once this time-limit has expired. The decision is then definitive and the administration cannot be required to go back on it. The position is otherwise only when—you brought this point back to mind in the judgment of 16 December 1964 in the case of Charles Müller (Rec. 1964, p. 1295)— there is ‘an important new fact’. It is then up to the official to submit a complaint in accordance with the conditions set out in Article 90, stating the new fact which he thinks he can rely on.

How does this apply to the present case? You have on several occasions accepted the proposition that the publication of the table of definitions of posts provided for by Article 5 of the Staff Regulations could constitute this ‘new’ fact, because it is only when a servant sees this table that he can discover whether he was correctly or incorrectly classified when he was established. I think that in this case the complaint, when it is made, must still be brought within the time-limit for contentious applications. This is the view which Mr Advocate-General Roomer supported in his opinion in the case of Boursin (Rec. 1964, p. 1390), and it is the only view whereby one can avoid divesting of all meaning the rules laid down in the Staff Regulations as regards what kinds of applications may be brought and within what time-limits.

However, there is no doubt that the table of definitions, adopted by the Commission at its meeting of 29 July 1963, was published in the Staff Bulletin of the Commission on 2 October 1963. It was this publication which constituted the moment when the period within which the new fact could have been raised started to run, and the request submitted on 19 June 1964 was clearly out of time.

However the trutn is that Mr Schoffer does not rely on that new fact, but mainly on the Maudet judgment of 19 March 1964. He already refers to this in the first paragraph of his request submitted to the administration. As he says in his reply, in his view this judgment really constitutes a precedent for the right which he is claiming. It does so in so far as the Court of Justice has stated that any servant who, after his integration, has been kept on in a post to which the Staff Regulations attribute a higher grade than the one which has been assigned to him during the establishment procedure has the right to have his classification rectified. He says that this judgment eliminated ‘the legal uncertainty which had been hanging over the question’ because of the fact that “the text of Article 102 (2) of the Staff Regulations gave rise to doubts”.

It is true that there was room for hesitation over the meaning of Article 102 of the Staff Regulations and that your judgment in the Maudet case gave an interpretation of it for the first time. But this does not mean that it constitutes a new fact starting time running again in favour of officials for bringing appeals in order to contest the legality of the classification given to them. As I have had occasion to say in another case, the force of res judicata of the Maudet judgment is limited to the legal relationships existing between the parties to the suit: the Commission and Mr Maudet; it has no effect on the relationships between the Commission and other servants whose situation is not altered as regards the time-limits within which they may assert their rights. In its rejoinder the defendant institution has shown how this view conforms generally to the accepted principles on actions in administrative matters in the various Member States, and I shall not emphasize this point any further. I shall simply add that the case which we are now discussing is not even of the same sort as the one which gave rise to the judgment in the Maudet case because, in contrast to that case, there is here a dispute as to what grade the duties performed by the applicant correspond to, which in that case there was not.

However, Mr Schoffer also relies on the fact that in June 1964—which means just before his request to the administration—the Commission appointed another official, Mr Stefani, to Grade A3 as assistant to the Director-General of Economic and Financial Affairs. Mr Schoffer says that this appointment was the first practical application of the new rules adopted by the Commission on 28 November 1962 for classifying these servants. According to those rules it was appropriate ‘in future to take decisions on the grading of the assistants from case to case on the basis of the special features peculiar to this post’. Thus he argues that for the first time after the entry into force of the Staff Regulations and of the definition of posts the Commission officially acknowledged that the tasks of an assistant are duties attributable to Grade A3.

The Court file does not reveal whether, as the Commission maintains, other servants were appointed before Mr Stefani pursuant to the rules laid down in November 1962. At all events the appointment to which the applicant refers is in the nature of an individual measure which only produces effects concerning the position of the person to whom it relates, and cannot legally constitute a ‘new fact’ enabling the period for calling in issue the classification of a third party to start running again.

In short I think that the classification of Mr Schoffer in Grade A4, Step 3, as from 1 January 1962 is now definitely settled because it was not contested either when it was notified to the person concerned, or when the table of definitions of posts was published. Therefore the request submitted by him in June 1964, more than three months after the occurrence of the only new fact of which he could have taken advantage, could not reopen the time-limit set for him under Article 91 of the Staff Regulations for asserting his rights or compel the administration to alter a grading which could no longer be contested.

This solution may seem rigorous, as are all rules fixing time-limits for bringing legal proceedings, especially actions by public servants. However it must not be forgotten that the explanation for these procedural rules is the need to ensure that legal situations and administrative decisions should be stabilized. Although this principle is unfavourable to the official in the present case, it may be to his advantage in other circumstances, for example where it prevents the administration from going back on an act whereby it has conferred rights on him.

If you were not to share this view you would have to rule on the substance of the request made by Mr Schoffer to be classified in Grade A3 as from 1 January 1962. I shall now briefly examine this question as a supplementary point.

B — The substance of the case

The position of an assistant to a Director-General does not appear either in Annex I to the Staff Regulations or in the table of definitions of basic posts adopted by the Commission.

we Know that this table describes the duties attaching to the basic posts of Principal Administrator (career bracket A4-A5) as being ‘head of one particular sector of activity in a division’, or ‘head of a specialized department’, or ‘qualified official engaged in planning, advisory or supervisory duties in one sector of activity’, or finally ‘assistant to Head of Division’. As for the basic post of Head of Division (career bracket A3), this means either a servant who ‘directs an administrative unit under the authority of a Director—or, where appropriate, under the direct authority of a Director-General—in a specialized field’, or one who is a ‘highly qualified official with the task of advising one body of the institution or engaged in studies or supervisory work, under the authority of a Director-General or a Director’.

In order to show that the post of assistant to a Director-General should be classified in Grade A3, Mr Schoffer points in the first place to the nature of the duties concerned which are substantially those performed by an ‘Adviser’ to a Director-General. Direcdy responsible to this senior official, he assists him and tenders advice to him on the running of the Directorate-General. He partakes on his own responsibility in the preparation and the carrying out of all the important tasks. He ensures proper communications with Directors and with Heads of Division, and also with the Offices of the Members of the Commission. On occasion he deputizes for the Director-General, and, in the absence of the latter, he is sometimes in fact called upon to give actual instructions to the officials of the Directorate-General on his behalf. Finally he is responsible for the running of the secretariat of the Directorate-General. All these are tasks which do not correspond to those of a Principal Administrator, but rather to those of a highly qualified official required to advise a body of the institution.

Mr Schoffer also calls to mind the fact—this is his other argument—that of nine assistants to Directors-General, four are classified in Grade A3 and five in Grade A4. If the figures of the defendant institution be taken, the distribution amongst 12 Directorates-General or equivalent bodies is four in Grade A3 and eight in Grade A4 or A5. But whatever the truth may be about these differences, there is no valid reason, says Mr Schoffer, for this difference in grading. He asserts that the nature of the duties performed by an assistant scarcely vary from one Directorate-General to another; which means that they should all be treated alike.

The reply given by the (commission to this dual line of propositions seems to me to be more convincing in some ways than in others. I am rather inclined to agree with it that the duties of an assistant correspond to those of a servant in Grade A4-A5, or at least that they do not correspond to those of a servant in Grade A3, contrary to what Mr Schoffer attempts to establish. Responsibility for the secretariat of a Directorate-General cannot really be put on the same level as responsibility for a division—anyhow the applicant does not argue this. The main point is that it strikes me as an abuse of words to call him an ‘Adviser’ to the Director-General within the meaning of the definition of posts, which seems to associate this term with the idea of a highly qualified expert. The advisory role of the assistant in this respect does not go beyond the context of the general duty which Article 21 places on the whole body of officials. Nor is it correct either to say that he ‘deputizes for’ his Director-General, and that he is called upon to give instructions in his stead and in his place. As for the fact that he participates in or is present at the meetings of a number of committees, this does not seem to be of any significance for the purpose of his classification in the scale of posts.

However the fact that other assistants have been classified in Grade A3 under the new Staff Regulations is a more difficult matter. The administration does not justify it with the argument about keeping people on in the same post as they had before—which anyhow does not apply to all those who benefit from this grading. It says that although ever since the beginning the needs of the service have required a post of assistant to be established within each Directorate-General, nevertheless this post does not constitute a ‘basic post’ corresponding to a given career bracket within the meaning of Article 5 of the Staff Regulations. It adds that the Commission's power to vary the duties of this post cannot be denied.

The fact that there may be blurred and overlapping in the definition of duties and powers attaching to each basic post which the institution has to adopt is something which in another case I have described as unfortunately inevitable. However this does not render the argument advanced today by the Commission any the less suspect and dangerous. It seems to me to amount to the idea that the career brackets laid down in the Annex only hold good for the basic posts listed therein, and that it is only these posts which have a precise, established and unchanging meaning. The contrary applies, so runs the argument, to the other posts; they do not have any fixed duties. The same tide could cover duties of different levels, and therefore different career brackets would correspond to these levels.

However Article 5 or the Staff Regulations which, after providing that the relationship between basic posts and career brackets is established by the table in Annex I, requires each institution to define the duties and powers attaching to each post. This definition must therefore be as full as possible. It must be drawn up in such a way that a place can be found in it for every post, if not expressly, at least by analogy; that by comparing the duties performed by the holder of a post with those defined in the table, it is possible to say that the post comes under one of the basic posts set out therein, and thus to find the career bracket to which the holder is entitled.

Although differences may exist between one institution and another, I find it hard to see how, within the same institution and in the context of the same table of definitions, the same title could correspond to different basic posts and career brackets. In the oral proceedings the Commission drew attention to the case of the ‘Principal Adviser’ and of the ‘Adviser’ ranked respectively in Grades A2 and A3 by the table which, however, defines the duties of the one and of the other in a very similar if not identical way. This is true as a fact. However it is not necessarily sufficient to justify a difference in level and therefore in classification between posts for assistants, especially since we are told elsewhere that from the outset the needs of the service have required the creation of this post within each Directorate-General, that is to say, a post for which there is an equal need in each Directorate-General, but one nevertheless whose purpose is to fulfil different duties depending on the case. This does not seem to me to be very convincing.

The fact is that we are faced with a choice between two concepts: either the title of ‘Assistant to the Director-General’ refers to duties of different levels depending on the case, and thus corresponds to different posts; I have expressed the doubts which this idea raises. Or it is accepted that the post is unique, but then—contrary to the state of affairs in other posts—how can its career bracket range from Grade A3 to Grade A5 without disregarding the rules of the Staff Regulations, and in particular of Annex I? Furthermore the question emerges whether the argument put forward by the Administration on the variable duties of the post is to be explained by the desire to break loose from the bonds which originate in this provision of the Staff Regulations.

If it were to befall you to give judgment on the substance of the appeal brought by Mr Schoffer, you could not do so, to my mind, without first having decided this point of law. Perhaps you would be led to seek a certain amount of additional information on the position of assistants in the various Directorates-General, without its being necessary, in order to do so, to call evidence from the immediate superior or the colleagues of the applicant. However, for the reasons which I have given, I think that your investigations should come to an end before even beginning a study of the substance of Mr Schoffer's claims.

I am therefore of the opinion that:

— Application 46/64 should be dismissed,

— and the parties should bear their own costs in accordance with the provisions laid down in Article 70 of the Rules of Procedure.

( 1 ) Translated from the French.