Judgment of the Court (First Chamber) of 10 December 1969. - Theodorus Mulders v Commission of the European Communities. - Case 8-69.



European Court reports 1969 Page 00561

Danish special edition Page 00165

Greek special edition Page 00223

Portuguese special edition Page 00233



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

++++

1 . OFFICIALS - ACCOUNTING OFFICER - INDEPENDENCE OF DUTIES - CONCEPT

( FINANCIAL REGULATION, ARTICLE 22, DECISION OF 30 JULY 1968, ARTICLE 2 )

2 . OFFICIALS - FINANCIAL CONTROLLER AND ACCOUNTING OFFICER - EQUIVALENCE OF DUTIES - NONE

( FINANCIAL REGULATION, ARTICLE 24 )

Summary

1 . THE INDEPENDENCE OF THE ACCOUNTING OFFICER, AS REGARDS THE PERFORMANCE OF HIS DUTIES, FROM THOSE WHOSE AUTHORIZATIONS OF EXPENDITURE HE HAS TO VERIFY, DOES NOT NECESSARILY MEAN THAT THERE CAN BE NO DIFFERENCE IN RANK WITHIN THE SERVICE BETWEEN HIM AND THEM, BUT MERELY THAT HE IS NOT SUBORDINATE TO ANY SUPERIOR IN THE ACTUAL PERFORMANCE OF HIS DUTIES .

2 . NO EQUIVALENCE EXISTS BETWEEN THE DUTIES OF A FINANCIAL CONTROLLER AND THOSE OF AN ACCOUNTING OFFICER SUCH AS TO JUSTIFY THEIR BEING GIVEN AN EQUAL GRADING .

Parties

IN CASE 8/69

THEODORUS MULDERS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN UCCLE, 2 AVENUE MARECHAL-NEY, REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER, 84 GRAND-RUE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, 4 BOULEVARD ROYAL,

DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE IMPLIED DECISION OF REJECTION TAKEN BY THE COMMISSION WITH REGARD TO THE REQUEST BY MR THEODORUS MULDERS TO HAVE THE DECISION APPOINTING HIM ACCOUNTING OFFICER OF THE COMMISSION SUPPLEMENTED BY PROMOTING HIM TO A HIGHER GRADE,

Grounds

1 THE APPLICATION, LODGED AT THE REGISTRY ON 10 FEBRUARY 1969, SEEKS THE ANNULMENT OF THE DECISION OF REJECTION IMPLIED ACCORDING TO ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS BY THE FAILURE OF THE COMMISSION TO REPLY WITHIN TWO MONTHS TO THE COMPLAINT SUBMITTED TO IT BY THE APPLICANT ON 14 OCTOBER 1968 .

2 IN THE SAID COMPLAINT THE APPLICANT REQUESTED THE COMMISSION TO SUPPLEMENT ITS DECISION OF 30 JULY 1968 APPOINTING HIM ACCOUNTING OFFICER OF THE COMMISSION BY RE-CLASSIFYING HIM IN GRADE A1, THEREBY ADAPTING HIS GRADING TO HIS RESPONSIBILITIES AND AVOIDING THE INTERPOSITION OF SUPERIORS IN THE ADMINISTRATION CONTRARY TO THE INDEPENDENCE ESSENTIAL TO HIS POST .

ADMISSIBILITY OF THE APPLICATION

3 THE DEFENDANT HAS CONTENDED THAT THE APPLICATION CANNOT CALL IN ISSUE THE DECISION OF 21 MAY 1968 APPOINTING THE APPLICANT TO A POST IN GRADE A3 BECAUSE NO COMPLAINT OR APPLICATION TO THE COURT WAS MADE AGAINST THAT DECISION WITHIN THE PRESCRIBED PERIOD OF THREE MONTHS .

4 THE APPLICANT HAS STATED THAT THE SUBJECT - MATTER OF HIS APPLICATION IS NEITHER THE DECISION OF 21 MAY NOR THAT OF 30 JULY 1968 BUT THE IMPLIED REJECTION OF HIS REQUEST FOR RE-CLASSIFICATION .

5 THE POINT AT ISSUE IS WHETHER THE DECISION OF 30 JULY 1968 GAVE THE APPLICANT THE RIGHT TO BE RE-CLASSIFIED IN GRADE A1 .

6 SINCE THE TIME FOR AN APPEAL AGAINST THE DECISION OF 30 JULY HAD NOT EXPIRED AT THE TIME WHEN HE LODGED HIS COMPLAINT, THE APPLICANT IS ENTITLED TO REQUEST A REVIEW OF THE LEGALITY OF THAT DECISION IN HIS APPLICATION DIRECTED AGAINST THE IMPLIED REJECTION OF THE SAID COMPLAINT .

7 THE APPLICATION IS ADMISSIBLE .

THE SUBSTANCE OF THE CASE

8 THE APPLICANT CLAIMS THAT THE FINANCIAL REGULATION OF 30 JULY 1968 CONCERNING THE DRAWING UP AND IMPLEMENTATION OF THE BUDGET OF THE EUROPEAN COMMUNITIES AND THE RESPONSIBILITIES OF AUTHORIZING OFFICERS AND ACCOUNTING OFFICERS, IN PARTICULAR ARTICLE 22 WHICH PROVIDES THAT THE EXECUTION OF THE BUDGET SHALL BE CARRIED OUT IN ACCORDANCE WITH THE PRINCIPLE OF THE SEPARATION OF AUTHORIZING OFFICERS AND ACCOUNTING OFFICERS, REQUIRES THAT AUTHORIZING OFFICERS, THE ACCOUNTING OFFICER AND THE FINANCIAL CONTROLLER BE INDEPENDENT OF EACH OTHER AND THAT THE ACCOUNTING OFFICER BE DIRECTLY RESPONSIBLE TO THE COMMISSION WITHOUT THE INTERPOSITION OF SUPERIORS IN THE ADMINISTRATION .

9 SINCE, ACCORDING TO THE APPLICANT, THE DUTIES OF THE AUTHORIZING OFFICERS, THE ACCOUNTING OFFICER AND THE FINANCIAL CONTROLLER ARE OF EQUIVALENT IMPORTANCE, IT FOLLOWS THAT THESE PERSONS SHOULD ALL HAVE THE SAME RANK IN THE HIERARCHY AND SHOULD NOT BE SUBJECT TO THE INSTRUCTIONS OF OTHER OFFICIALS .

10 TO ENSURE THEIR COMPLETE INDEPENDENCE FROM OTHER OFFICIALS THE AUTHORIZING OFFICERS AND THE FINANCIAL CONTROLLER-GENERAL HAVE BEEN PLACED IN GRADE A1; CONSEQUENTLY THE ACCOUNTING OFFICER, TOO, SHOULD ACCORDING TO THE APPLICANT BE GIVEN THE SAME GRADE .

11 ARTICLE 2 OF THE DECISION OF 30 JULY 1968 PROVIDES THAT " IN THE PERFORMANCE OF THEIR DUTIES THE ACCOUNTING OFFICER AND THE ASSISTANT ACCOUNTING OFFICERS SHALL BE RESPONSIBLE DIRECTLY TO THE COMMISSION ".

12 THE APPLICANT HAS NOT CONTESTED THE LEGALITY OF THIS PROVISION .

13 THE PURPOSE OF THE PROVISION IS TO ENSURE THE INDEPENDENCE OF THE ACCOUNTING OFFICER AND MAKE HIM DIRECTLY ANSWERABLE TO THE COMMISSION IN THE PERFORMANCE OF HIS DUTIES .

14 WHILST IT IS TRUE THAT ACCORDING TO THE DETAILED LIST OF POSTS THE FINANCE, TREASURY AND ACCOUNTS DIVISION OF WHICH THE APPLICANT IS HEAD COMES UNDER THE DIRECTORATE FOR THE OPERATIONAL BUDGET AND FINANCE AND THE DIRECTORATE-GENERAL FOR THE BUDGET, THE APPLICANT HAS PROVIDED NO EVIDENCE CALCULATED TO SHOW THAT THIS SITUATION COULD JEOPARDIZE THE INDEPENDENCE REQUIRED BY THE FINANCIAL REGULATION AND PRESCRIBED BY THE DECISION OF 30 JULY 1968 .

15 THE INDEPENDENCE OF THE ACCOUNTING OFFICER, AS REGARDS THE PERFORMANCE OF HIS DUTIES, FROM THOSE WHOSE AUTHORIZATIONS OF EXPENDITURE HE HAS TO VERIFY, DOES NOT NECESSARILY MEAN THAT THERE CAN BE NO DIFFERENCE IN RANK WITHIN THE SERVICE BETWEEN HIM AND THEM, BUT MERELY THAT HE IS NOT SUBORDINATE TO ANY SUPERIOR IN THE ACTUAL PERFORMANCE OF HIS DUTIES .

16 THE REFERENCE TO THE GRADES HELD BY THE AUTHORIZING OFFICERS AND BY THE FINANCIAL CONTROLLER-GENERAL HAS NO RELEVANCE .

17 IN THE FIRST PLACE THE COMMISSION NORMALLY DELEGATES ITS POWERS OF AUTHORIZING EXPENDITURE ONLY TO OFFICIALS IN THE HIGHEST GRADES, SO THAT THE RECIPIENTS OF THESE DELEGATED POWERS OF AUTHORIZATION ARE NOT PLACED IN GRADE 1 AS A RESULT OF THIS DELEGATION : ON THE CONTRARY, IT IS BECAUSE THEY ARE HEADS OF DIRECTORATES - GENERAL OR OF DIRECTORATES THAT THE POWER OF AUTHORIZATION HAS BEEN DELEGATED TO THEM .

18 SECONDLY, A COMPARISON OF ARTICLES 29 TO 31, 39 AND 40 WITH ARTICLES 42 TO 45 OF THE FINANCIAL REGULATION PROVES THAT THE DUTIES AND RESPONSIBILITIES OF THE FINANCIAL CONTROLLER AND THOSE OF THE ACCOUNTING OFFICER DIFFER CONSIDERABLY .

19 ARTICLE 24 OF THE REGULATION, MOREOVER, IN PROVIDING THAT THE RULES OF THE ADMINISTRATIVE PROVISIONS APPLICABLE TO FINANCIAL CONTROLLERS SHALL BE DETERMINED IN SUCH A WAY AS TO GUARANTEE THE INDEPENDENCE OF THEIR DUTIES AND THAT THE MEASURES TAKEN IN RESPECT OF THEIR APPOINTMENT AND PROMOTION, DISCIPLINARY ACTION OR TRANSFERS, AND VARIOUS METHODS OF INTERRUPTION OR TERMINATION OF APPOINTMENT SHALL BE SUBJECT TO REASONED DECISIONS TO BE FORWARDED, FOR INFORMATION, TO THE COUNCIL, HAS HEDGED THE POSITION OF FINANCIAL CONTROLLERS AROUND WITH GUARANTEES EVEN MORE PRECISE THAN THOSE PROVIDED FOR THE POSITION OF ACCOUNTING OFFICER .

20 THE APPLICANT IS THEREFORE WRONG TO CLAIM THAT BETWEEN THE DUTIES OF FINANCIAL CONTROLLER AND THE DUTIES OF AN ACCOUNTING OFFICER THERE EXISTS AN EQUIVALENCE SUCH AS TO JUSTIFY THESE OFFICERS' BEING GIVEN AN EQUAL GRADING .

21 FURTHERMORE THE APPOINTMENT OF THE APPLICANT AS ACCOUNTING OFFICER DOES NOT CONSTITUTE AN IMPORTANT NEW FACT IN RELATION TO HIS ASSIGNMENT TO THE POST OF HEAD OF THE FINANCE, TREASURY AND ACCOUNTS DIVISION .

22 IN FACT THE DUTIES OF THIS DIVISION COINCIDE WITH THE WORK OF AN ACCOUNTING OFFICER TO SUCH AN EXTENT THAT IT IS IMPOSSIBLE TO SEPARATE OR DISTINGUISH THE TWO SETS OF DUTIES .

23 THAT IS, MOREOVER, CONFIRMED BY THE APPLICANT'S OWN STATEMENT THAT HE HAS NO DUTIES OR RESPONSIBILITIES OTHER THAN THOSE OF ACCOUNTING OFFICER .

24 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION DIRECTED AGAINST THE IMPLIED REJECTION OF THE APPLICANT'S COMPLAINT OF 14 OCTOBER 1968 MUST BE DISMISSED AS UNFOUNDED .

Decision on costs

25 THE APPLICANT HAS FAILED IN HIS ACTION .

26 UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

27 HOWEVER, UNDER ARTICLE 70 OF THE RULES IN ACTIONS BY OFFICIALS OF THE COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .