2.

As I have already said, the applicant also requests in the alternative the partial annulment of the above-mentioned decision of promotion in so far as it describes the post to which the applicant was appointed as that of ‘agent technique’ and provides for its classification in Grade B4. Following the annulment of that decision the applicant seeks in addition a finding that he in fact holds the post of ‘dessinateur-projeteur’ and that he must be classified in Grade B3 with effect from 1 December 1970 at least. In this respect it is immediately clear that problems as to the admissibility of the application do not arise regarding observation of the period for lodging an application as, after notification of the decision of promotion, the applicant submitted an administrative complaint within the period for lodging an application prescribed in Article 91 and set out therein the request, which although perhaps not worded with complete clarity, now forms the subject-matter of his alternative claim. Nevertheless, the Commission considers that the alternative claim is likewise inadmissible. In this connexion it is of the opinion that the decisive factor is the fact that if the Court were to allow the applicant's claim it would encroach on the scope of the administrative discretion of the Commission. This is because it is necessary with regard to the allocation of a post in B3 for provision to be made for such a post within the framework of the detailed list of posts and for the staff to be notified in accordance with Article 4 of the Staff Regulations of Officials. This is however connected with considerations of expediency with regard to the organization of the services and the limitations of the budget. At the time in question the Commission did not in fact advertise a vacant post in B3 as was necessary in the view of the applicant. Furthermore the name of the applicant was only included in the list of candidates considered eligible for promotion to B4. Comparative consideration of their merits took place on that basis. On the other hand, for a promotion to B3 the list would have had to be of a different nature and to include other candidates. However the Administration has not yet made that choice and it is consequently impossible to anticipate it through a judgment of the Court which assumes the fact that the applicant was also the candidate most deserving promotion to B3. May I say from the outset that it is also in fact impossible to deny the justification of this argument. This holds good even if it is admitted that per se the promotion of a draughtsman from Category C2 to Category B4 appears incorrect. In fact, as we have heard in the proceedings, according to Annex I(B) to the Staff Regulations of Officials in conjunction with the description of posts of the Commission of September 1963, the career bracket of draughtsman only covers Grades C4 to C1 and, if ‘dessinateurs-projeteurs’ are included, Grades B3 to B1. Grade B4, in itself valid with regard to other duties, was thus introduced by the Commission somewhat illegally (that is to say, it failed to observe the general decision of the Commission of 10 March 1971 regarding grading on promotion) in order to ease the transition from Grade C2 to Category B and, according to the statements of the Commission, it was envisaged for officials who cannot yet be appointed as ‘dessinateurs-projeteurs’ but can only be described as entrants (débutants) to this category. Even if one refuses to acknowledge that such a structure of the career of draughtsman is lawful, that is, if promotion from C2 to B4 is not considered permissible, the outcome sought by the applicant, his classification in Grade B3, is by no means inevitable. In that case, that is to say, if the Commission were obliged to concede that the method adopted by it is impossible to follow it comes first and foremost within the discretionary power of the Administration to take a decision regarding other conceivable arrangements. It could for example make provision for a post in B3 and thereby enable promotion to such a post. As I have already said however, this would presuppose a discretionary decision within the framework of the detailed list of posts and taking account of the limitations of the budget. If the Administration were in fact to decide to take that step it would require an ‘appraisal of merits’ differing from that which came into consideration with regard to promotion to B4. It would thus be necessary to take into account all candidates who may conceivably be promoted to B3, especially all draughtsmen who, like the applicant in 1971, were first promoted to Grade B4. It is however impossible to maintain with certainty that the applicant in particular would have to be considered as the candidate most deserving of promotion in a selection procedure in which seniority in the grade also plays an important part. The conclusion necessarily follows from the finding that the essential aim of the applicant is not annulment of the decision of promotion as such but classification in Grade B3 and in view of the fact that such a decision involves on the part of the Commission several considerations coming within its discretion and relating to expediency which the Court cannot make in its stead, that the alternative claim too is basically inadmissible. This conclusion remains unaffected even by the reference by the applicant to judgments in which the Court of Justice has made specific orders with regard to grading. They are all decisions unconnected with the margin of discretion of the Administration. Indeed that applies in particular to all instances concerned exclusively with the determination of a step within a grade. Since grading problems of this nature can in fact be settled in accordance with purely objective criteria, their treatment cannot constitute a precedent with regard to the difficulties in the present case which are of quite another aspect. Despite the case-law of the Court (for example, the judgments in Joined Cases 59 and 71/69, [1970] ECR 623) the conclusion reached above remains valid, that the alternative claim of the applicant must be declared inadmissible.