Judgment of the Court (Second Chamber) of 9 July 1970. - Algiso Brembati v Commission of the European Communities. - Joined cases 59 and 71-69.



European Court reports 1970 Page 00623

Danish special edition Page 00103

Greek special edition Page 00391

Portuguese special edition Page 00439



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - PROMOTION - CLASSIFICATION IN THE NEW GRADE - CRITERIA - " NOTIONAL " STEPS

( FIRST SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 OF THE STAFF REGULATIONS OF OFFICIALS )

2 . OFFICIALS - PROMOTION - CLASSIFICATION IN THE NEW GRADE - CRITERIA - BASIC SALARY

( SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 AND ARTICLE 66 OF THE STAFF REGULATIONS OF OFFICIALS )

Summary

1 . THE PURPOSE OF THE FIRST SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 IS, IN CASES OF PROMOTION, TO ENSURE BY TAKING INTO ACCOUNT THE " NOTIONAL STEPS " THAT THE SENIORITY WHICH MAY HAVE BEEN ACQUIRED BY THE OFFICIAL CONCERNED IS MAINTAINED FOR THE PURPOSES OF FUTURE TWO-YEARLY INCREMENTS . THE PHRASE " THROUGHOUT THE SPAN OF THE ACTUAL STEPS " MUST BE INTERPRETED AS REFERRING TO THE INTERMEDIATE INTERVALS OF REMUNERATION BETWEEN THOSE STEPS, THE LAST OF WHICH REPRESENTS A LIMIT WHICH CANNOT BE EXCEEDED WITHOUT DISTORTING THE SYSTEM OF SCALES OF REMUNERATION PROVIDED FOR IN THE STAFF REGULATIONS .

2 . THE PURPOSE OF THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 IS TO ENSURE THAT AN OFFICIAL WHO IS PROMOTED TO A HIGHER GRADE IS CLASSIFIED IN SUCH A STEP OF THAT GRADE THAT THE BASIC SALARY AS FIXED IN THE TABLE APPEARING IN ARTICLE 66 IS AT LEAST EQUAL TO THE BASIC SALARY PAYABLE IN HIS FORMER GRADE .

Parties

IN JOINED CASES 59 AND 71/69

ALGISO BREMBATI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN BRUSSELS, REPRESENTED BY GIANFRANCO MARIS, ADVOCATE OF THE MILAN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF LUIGI RONCHI, 14 RUE BATTY-WEBER, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, SERGIO VENTURA, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION TO DETERMINE THE STEP AND THE SENIORITY IN STEP OF THE APPLICANT FOLLOWING HIS PROMOTION TO GRADE A 4;

Grounds

1 BY AN APPLICATION DATED 15 OCTOBER 1969 THE APPLICANT INSTITUTED PROCEEDINGS FOR THE ANNULMENT OF THE IMPLIED DECISION OF REJECTION RESULTING FROM THE FAILURE OF THE COMMISSION TO GIVE ANY REPLY TO HIS REQUEST THROUGH OFFICIAL CHANNELS SUBMITTED ON 11 JUNE 1969 CONCERNING HIS CLASSIFICATION FOLLOWING PROMOTION FROM GRADE A 5 TO GRADE A 4 . ( APPLICATION 59/69 ).

2 AS A SUBSEQUENT DECISION OF THE COMMISSION OF 29 SEPTEMBER 1969 ALTERED THE APPLICANT' S POSITION IN CERTAIN RESPECTS, HE LODGED AN APPLICATION AGAINST THAT DECISION ON 2 DECEMBER 1969 . ( APPLICATION 71/69 ).

I - ADMISSIBILITY

3 THE COMMISSION CONTENDS THAT APPLICATION 71/69 IS INADMISSIBLE IN THAT IT LACKS LEGAL INTEREST AS ITS SUBJECT-MATTER IS NO DIFFERENT FROM THAT OF APPLICATION 59/69 .

4 ALTHOUGH THE DECISION OF 29 SEPTEMBER 1969, WHICH FORMS THE SUBJECT-MATTER OF APPLICATION 71/69, DID NOT SATISFY THE APPLICANT' S CLAIMS, IT DID, HOWEVER, ALTER HIS SENIORITY OF GRADE AND STEP IN SOME RESPECTS .

5 THEREFORE, IN ORDER TO SAFEGUARD THE CHANCES OF SUCCESS OF HIS ORIGINAL APPLICATION, THE APPLICANT HAD A LEGAL INTEREST IN LODGING ANOTHER APPLICATION AGAINST THIS NEW DECISION .

6 AS THE COURT HAS ORDERED THE JOINDER OF THESE TWO PROCEEDINGS IT IS UNNECESSARY TO CONSIDER TO WHAT EXTENT, IF AT ALL, THE NEW APPLICATION RENDERED THE FIRST APPLICATION POINTLESS .

7 FOR THIS REASON THE TWO APPLICATIONS MUST BE DECLARED JOINTLY ADMISSIBLE .

II - SUBSTANCE

I - SUBMISSION BASED ON THE FIRST SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 OF THE STAFF REGULATIONS

8 THE APPLICANT ALLEGES THAT THE COMMISSION HAS INFRINGED THE FIRST SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 OF THE STAFF REGULATIONS BY FAILING TO TAKE INTO ACCOUNT, FOR HIS CLASSIFICATION IN THE SCALES OF REMUNERATION FOR GRADE A 4, THE " NOTIONAL STEPS " WHICH HE HAD REACHED THROUGH HAVING BEEN CLASSIFIED FOR MORE THAN TWENTY-FOUR MONTHS IN STEP 8 OF GRADE A 5 .

9 UNDER THE TERMS OF THE FIRST PARAGRAPH OF ARTICLE 46 OF THE STAFF REGULATIONS AN OFFICIAL APPOINTED TO A HIGHER GRADE SHALL, IN HIS NEW GRADE, HAVE THE SENIORITY CORRESPONDING TO THE NOTIONAL STEP EQUAL TO OR NEXT ABOVE THE NOTIONAL STEP REACHED IN HIS FORMER GRADE, PLUS THE AMOUNT OF THE TWO-YEARLY INCREMENT FOR THAT GRADE .

10 FOR THE APPLICATION OF THIS PROVISION, THE FIRST SENTENCE OF THE SECOND PARAGRAPH OF THE SAME ARTICLE STATES THAT " EACH GRADE SHALL BE DIVIDED INTO NOTIONAL STEPS CORRESPONDING TO MONTHS OF SERVICE AND NOTIONAL SALARIES RISING BY ONE TWENTY-FOURTH OF THE TWO-YEARLY INCREMENT FOR THAT GRADE THROUGHOUT THE SPAN OF THE ACTUAL STEPS ".

11 THE PURPOSE OF THIS PROVISION IS IN CASE OF PROMOTION TO ENSURE THAT THE SENIORITY WHICH MAY HAVE BEEN ACQUIRED BY THE OFFICIAL CONCERNED IS MAINTAINED FOR THE PURPOSES OF FUTURE TWO-YEARLY INCREMENTS .

12 THUS, THE MONTHLY PROGRESSION ENVISAGED BY THE PROVISION IN QUESTION CANNOT CONTINUE BEYOND THE EIGHT STEP WHICH FORMS THE SALARY CEILING IN GRADE A 5 .

13 THIS IS THE MEANING OF THE EXPRESSIONS " NOTIONAL STEP " AND " NOTIONAL SALARY " WHICH REFER TO POSSIBLE RATHER THAN TO IMAGINARY STEPS IN THE SCALE OF REMUNERATION, AS WOULD BE THOSE WHICH CONTINUED BEYOND THE MAXIMUM LEVEL OF REMUNERATION LAID DOWN IN THE TABLE IN ARTICLE 66 OF THE STAFF REGULATIONS .

14 IT APPEARS THEREFORE THAT THE PHRASE " THROUGHOUT THE SPAN OF THE ACTUAL STEPS " MUST BE INTERPRETED AS REFERRING TO THE INTERMEDIATE INTERVALS OF REMUNERATION BETWEEN THOSE STEPS, THE LAST OF WHICH REPRESENTS A LIMIT WHICH CANNOT BE EXCEEDED WITHOUT DISTORTING THE SYSTEM OF SCALES OF REMUNERATION PROVIDED FOR IN THE STAFF REGULATIONS .

15 THE RESULT OF THIS IS, IN THIS INSTANCE, THAT THE MONTHLY PROGRESSION ENVISAGED BY THE FIRST SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 CANNOT THEREFORE EXCEED THE EIGHT OF GRADE A 5 .

16 FOR THIS REASON THE SUBMISSION BASED ON THE FIRST SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 MUST BE REJECTED .

2 - SUBMISSIONS BASED ON THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 AND ON THE FIRST PARAGRAPH OF ARTICLE 62 OF THE STAFF REGULATIONS

17 THE COMMISSION CLASSIFIED THE APPLICANT IN STEP 4 OF GRADE A 4 WITH A NOTIONAL SENIORITY OF TWENTY-THREE MONTHS BY APPLYING, FOR THIS PURPOSE, THE RULE APPEARING IN THE FINAL SECTION OF THE FIRST PARAGRAPH OF ARTICLE 46 OF THE STAFF REGULATIONS .

18 BY VIRTUE OF THIS PROVISION THE COMMISSION CHOSE AS THE BASIS OF CALCULATION THE SALARY RECEIVED IN THE FORMER GRADE PLUS THE AMOUNT OF THE TWO-YEARLY INCREMENT FOR THAT GRADE, AND TOOK INTO CONSIDERATION THE " NOTIONAL SALARY " NEXT ABOVE .

19 AS THE SALARY CALCULATED IN THIS WAY WAS BF 100 LOWER THAN THAT RECEIVED IN HIS FORMER GRADE, FOR ONE MONTH THE COMMISSION CONTINUED TO PAY THE REMUNERATION RECEIVED BEFORE PROMOTION, UNTIL THE OFFICIAL CONCERNED COULD ATTAIN THE SALARY CARRIED BY THE HIGHER STEP, THAT IS, STEP 5 OF GRADE A 4 .

20 THE APPLICANT CONSIDERS THAT TO DETERMINE HIS SALARY IN THIS WAY IS CONTRARY TO THE RULE CONTAINED IN THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46, WHICH ENTITLED HIM TO BE PAID IMMEDIATELY NOT LESS THAN THE BASIC SALARY ATTACHING TO STEP 5 OF GRADE A 4 .

21 FOR THE REASONS SET OUT ABOVE, THE PROVISIONS CONTAINED IN THE FIRST PARAGRAPH AND THE FIRST SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 CONCERNING THE DETERMINATION OF SENIORITY ON THE BASIS OF NOTIONAL STEPS FOR THE PURPOSES OF A FUTURE RISE TO A HIGHER STEP OF REMUNERATION IN THE NEW GRADE WERE NOT APPLICABLE TO THE APPLICANT .

22 FOR THIS REASON THE APPLICANT' S SALARY OUGHT TO HAVE BEEN FIXED BY APPLYING THE RULE CONTAINED IN THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 OF THE STAFF REGULATIONS ACCORDING TO WHICH : " AN OFFICIAL APPOINTED TO A HIGHER GRADE SHALL IN NO CASE RECEIVE A BASIC SALARY LOWER THAN THAT WHICH HE WOULD HAVE RECEIVED IN HIS FORMER GRADE ".

23 THE APPLICATION OF THIS PROVISION DEPENDS ON A COMPARISON TO BE MADE BETWEEN THE " BASIC SALARY " TO WHICH AN OFFICIAL IS ENTITLED IN HIS NEW GRADE AND THE " BASIC SALARY " WHICH HE WOULD HAVE RECEIVED HAD HE NOT BEEN PROMOTED .

24 THE CONCEPT OF " BASIC SALARY " LAID DOWN IN ARTICLE 62 OF THE STAFF REGULATIONS IS SET OUT IN DETAIL IN ARTICLE 66, ACCORDING TO WHICH BASIC SALARIES ARE DETERMINED FOR EACH GRADE AND STEP BY A TABLE OF FIGURES FORMING AN INTEGRAL PART OF THAT SAME PROVISION .

25 IN THIS INSTANCE, THEREFORE, THE COMPARISON ENVISAGED BY THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 MUST BE MADE BETWEEN, FIRST, THE BASIC SALARY CARRIED BY STEP 8 OF GRADE A 5 AND, SECONDLY, THE BASIC SALARY CARRIED BY THE CORRESPONDING STEPS IN GRADE A 4 .

26 AS THE BASIC SALARY CARRIED BY THE FOURTH STEP OF GRADE A 4, AS FIXED BY THE TABLE WHICH WAS IN FORCE WHEN THE CONTESTED DECISIONS WERE TAKEN, WAS LOWER THAN THE BASIC SALARY WHICH THE APPLICANT WOULD HAVE RECEIVED IN HIS FORMER GRADE, THE COMMISSION SHOULD HAVE AWARDED HIM THE STEP NEXT ABOVE .

27 THEREFORE, THE SUBMISSIONS BASED ON THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 46 AND THE FIRST PARAGRAPH OF ARTICLE 62 ARE JUSTIFIED TO THE EXTENT TO WHICH THEY REFER TO THE APPLICANT' S CLASSIFICATION AT THE TIME OF HIS PROMOTION IN THE FIFTH STEP OF GRADE A 4, WITHOUT ANY SENIORITY IN STEP .

Decision on costs

28 UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY OFFICIALS OF THE COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

29 THE APPLICANT HAS FAILED IN HIS PRINCIPAL HEAD OF CLAIM .

30 ALTHOUGH HIS ALTERNATIVE CONCLUSIONS HAVE BEEN ACCEPTED IT MUST BE FOUND THAT, APART FROM A MINIMAL DIFFERENCE, THEY HAVE ONLY CONFIRMED THE PRACTICAL RESULT OF THE DECISIONS IN QUESTION .

31 IN THESE CIRCUMSTANCES, IT IS REASONABLE FOR THE APPLICANT TO BE ORDERED TO PAY THE COSTS INCURRED BY HIM .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE CONTESTED DECISIONS TO THE EXTENT TO WHICH THEY REFUSED TO CLASSIFY THE APPLICANT ON HIS PROMOTION IN THE FIFTH STEP OF GRADE A 4 WITHOUT ANY SENIORITY IN STEP;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .