OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 30 MAY 1973 ( 1 )

Mr President,

Members of the Court,

If perseverance were proof of right, you would no doubt have to give favourable reception to the submissions in the application in which Mr Leandro Tontodonati asks you to declare in his favour against the Commission of the European Communities.

The applicant is for the second time appealing to the Court in order to obtain a re-grading which he has been demanding for over 10 years.

After entering the employment or the Euratom Commission in 1958, Mr Tontodonati was in the service of the Communities as a Principal Clerical Officer on grade C 1, 1st Division, with effect from 1 January 1962. He worked in Supplies and Stores at the Nuclear Research Centre at Ispra. Since 1963, his duties have been described in his annual reports in the following terms: ‘responsible for completion of inventory’. In 1965, the following words were added: ‘Statement of material at the Research Centre’. Then, in the reports for 1967 and 1969, these duties were described as being: ‘indexing, for inventory purposes, of material ordered for the Centre. Deciding degree of inventorability and checking that material supplied conforms with orders’.

From the outset, the applicant has contested his classification within the Staff structure. He has, since 28 February 1963, claimed a change of classification and up-grading into category B. Rejection of this first claim, did not discourage him; in 1966, then in 1969, he reiterated his demands, with no greater succes, before the Director of the Ispra Centre. His demands were rejected on the ground that there was no disparity between the duties he was carrying out and the grade in which he had been placed. On 8 December 1970, invoking Article 90 of the Staff Regulations then in force, Mr Tontodonati brought a formal claim before the President of the Commission. In this, he contended that, in view of his actual responsibilities, he should be re-classified in the career-bracket B 2/B 3, with retrospection to 1 January 1963, and that he should draw the arrears of salary appropriate to this re-grading. He brought the decision to reject his claim, implied by the Commission's silence on the subject, before the Court. Pointing out that neither the decision to place the applicant as Principal Clerical Officer in grade C1, nor the Commission's rejection of his claim had been challenged during the period of time laid down in Article 91 of the Staff Regulations, your First Chamber rejected his application as inadmissible in its judgment of 15 December 1971 (Recueil 1971, p. 1062).

Mr Tontodonati did not admit dereat. On the ground that, since January 1971, he had in fact become the sole person in charge of the stock inventory service at the Ispra establishment, which he regarded as a new development, he submitted a fresh claim to the President of the Commission, seeking re-classification in category B with effect from 1 February 1971.

He appears before you to challenge the implied rejection of his claim.

He points out that the inventory section, which forms part of the ‘Supply and Finance’ Division at the Ispra Centre, was at that time under a Mr Rousseau, a grade B 1 official, who was supported by an assistant, Mr Scaramucci, himself on grade B 4. The applicant was therefore at that time only the third-ranking member of staff in the section.

However, since the beginning or 1971, he has been in sole charge of the inventory section. At that stage his chief, Mr Rousseau, had in fact had to give up work as the result of illness; after his recovery, in the following August, he did not return to duty as the head of the section but was transferred to the Centre's Personnel and Administration Division. As for Mr Scaramucci, he had also left the inventory section, in October 1970, likewise on account of illness.

As neither of these officials was replaced, Mr Tontodonati says that he found himself obliged to undertake the greater part of the responsibilities which had been previously entrusted to them. In fact, therefore, he has been the head of the section for more than two years and in this capacity has accquitted himself to the satisfaction of the Director of the Ispra Establishment, as is borne out by complimentary assessments made about the way he does his work. The performance report of 6 March 1972, which was signed by the head of the Supply and Finance Division, in fact specifically declares that, since October 1970, the applicant has had ‘in addition to his own work, to act in place of Mr Scaramucci’ and that, since February 1971, he also replaced Mr Rousseau in his capacity as the person responsible for inventory. The report emphasizes that, despite the fact that the section was below strength and despite the need to adopt new methods of operation, Mr Tontodonati has not only kept the section in good working order but also made an effective contribution to the reorganization of the inventory, showing a devotion to duty substantially above average.

Such are the factors on which the applicant bases his application for retrospective re-grading in Category B.

The Commission opposes his application on the grounds that it is inadmissible; it believes that Mr Tontodonati's administrative status, and particularly his classification in the table of posts, have beeen clearly fixed ever since his establishment in 1963 as a Principal Clerical Officer in the Euratom services. As it was not challenged within the limiation period, the decision taken on his establishment became final, as indeed the Court has declared in its previous judgment. The implied rejection of the applicant's latest claim, designs merely to achieve the same objectives as its predecessors, was therefore no more than a confirmation of the position, and it was inadmissible for the applicant to contest yet again the validity of the classification applied to him when he first became a member of staff.

The situation would be different only if there had been a change in the applicant's position of such a character that it substantially altered the considerations which led to the original decision to place him on the establishment.

But according to the Commission the circumstances on which the applicant relies do not constitute a new factor and do not fulfil this requirement; in particular the fact that for some months the applicant was able to replace an official in a category higher than his own cannot justify a reconsideration of his position.

We will not spend much time on this bar to proceedings. In the first place the Commission's thinking does not, in our view, take account of the facts.

It is not diputed that Mr Tontodonati did not merely stand in temporarily for Mr Rousseau. After his illness the latter did not return to work in the inventory section; he was allocated to another service. It is also agreed that his assistant, Mr Scaramucci, also ceased to belong to the inventory section.

Accordingly, Mr Tontodonati round himself in sole charge of the section. In fact the service was reorganized by an extension of the applicant's responsibilities which, to put it at its lowest, entailed a change in his working conditions, as his 1972 report makes abundantly clear.

It was therefore in order for him to ask the Commission for a fresh examination of his status in the light of changes in his pattern of work.

As a consequence, it seems to us that he should be allowed to lodge a complaint against the rejection of his claim which flows from the Commission's silence on the subject. According to Article 90 of the Staff Regulations then in force, an implied decision to reject a claim was deemed to date from the expiry of two months after receipt of the claim of the competent authority, so, in the present case, it was on 31 March 1972 that such a decision was taken. Mr Tontodonati's application was entered before the Court on the 18 May following, which is within the time limit prescribed for a contentious reference to the Court.

However, while believing we can accept the application as admissible, we nevertheless recommend you to reject it as ill-founded.

It . seems to us that the applicant s development of his case rests on a confusion of two radically different concepts:

— on one hand, the power to organize the service which the administrative authority alone possesses and from which flows, among other things, its right to fix and change the organization in the light of the exigencies and needs of the service and thus to adapt it, as necessity arises, to cope with all the changes which can occur in technique and administrative management;

— on the other hand, the personal rights which members of staff enjoy under their Staff Regulations.

Whilst an official has, more particularly, a right under the Regulations to be guaranteed that the responsibilities entrusted to him are consistent with a job which corresponds to the grade he holds in the staff structure, as you declared in your judgment of 11 July 1968, (Case 19/67, Labeyrie, Rec. 1968, p. 445), and whilst the principle of ensuring that the responsibilities carried and the grade of the post correspond with each other is designed to avoid inequalities of treatment between officials (judgment of 17 December 1964, case 102/63, Boursin, Vol. 1964, p. 1379), the fact that a member of staff carries out duties appropriate to a post in a higher-graded category than his own is doubtless a factor to be borne in mind in connection with promotion, but it is not enough to justify re-classification of his job. You so decided in your judgment of 16 June 1971, (Case 77/70, Prelle, Vol. 1971, p. 567).

These principles must now De applied to the present dispute.

As we have seen, until 1971 the stock inventory section at Ispra consisted of three members of staff:

— the first classified in Category B, was, according to the description of basic posts adopted by the Commission on 29 July 1968, an executive officer charged with responsibility for an administrative unit, the appropriate designation for this job appears to us to be ‘section head’.

— the second, belonging to the same category, but on grade B 4, was, according to the same table of basic posts, an executive officer who, under supervision, carries out day-to-day office duties'.

— tne third, viz the applicant, is, in his capacity of Principal Clerical Officer in grade C 1, an official charged with executive duties of a mainly administrative character, which demand initiative or responsibility. The description of his duties, as it emerges from his 1972 report, seems to us to require the designation of his job as that of ‘Stores Manager’.

For reasons which fall solely within the discretion of the administrative authority, a reorganization of the service was put into effect in 1971. The two officials on Category B, Messrs Rousseau and Scaramucci, ceased work in the inventory section because of illness and were not replaced. The first was trasferred some months later to the Personnel Directorate; where the second was posted to is not clear, but we know that he did not return to his previous employment.

In any event, the administration took the view, no doubt because of technological developments, that the operation of the section no longer justified the employment of grade B staff and that the tasks carried out by the section could be entrusted to a single official in Category C.

In doing this the administration took a decision relating to the organization of the service which, in our view, is outside your jurisdiction to examine, and, being on ground which is not within the ambit of the Regulations, cannot be validly criticized by an official.

On the other hand, in such a situation, to what right in law can the applicant lay claim under the Regulations?

It consists exclusively of the right to be given responsibilities consistent with his position on the staff. In other words the administration could not expect him to carry out tasks on a level higher than his grade. But, on this aspect, the Commission have told you that at the other establishments of the Joint Research Centre under the Commission's control, staff who, like Mr Tontodonati, are responsible for inventory of stock, also belong to a group whose grading is lower than category B.

mat is certainly true or tne establishments at Petten and Geel. As for the position at Karlsruhe, though its inventory service is admittedly run by a category B official, the Commission has explained that this member of staff has, in addition, responsibility for analytical returns relating to the Stores and, above all, for conducting the procedures for the purchase of supplies. Both of these tasks require administrative and legal knowledge at a level higher than is required of category C officials.

However that may be, even if, since 1971, Mr Tontodonati's responsibilities had, in terms of grade-level and importance, risen above those which can be entrusted to a stores manager in grade C 1, it would not follow that the individual concerned has a right to be re-classified in the higher category. Entry into such a category cannot, according to Article 45 (2) of the Regulations, take place except on appointment determined after competition. It cannot arise from a promotion, which can, in any case, take place only within the same category and the same career-bracket.

Accordingly, even supposing that the duties carried out by the applicant could in fact be associated with grade B — a suspposition which we do not regard as corresponding to reality — the administration could not, legally, re-classify him retrospectively on that level. All the administration could do would be to relieve him of those responsibilities which are no longer compatible with the post in which he was established in 1963.

We can therefore only advise

— that the application should be dismissed, and that

— in accordance with Article 70 of the Rules of Procedure each party should bear his own costs.

( 1 ) Translated from the French.