2.

The Councils also argue that the application was made out of time. Certainly it was started less than two months after a decision of rejection implied by the silence with which the administrative complaint of 15 July 1964 was met. But this implied decision only confirmed a legal situation which existed much earlier, and in reality the application is directed against the decisions of 28 March and 21 June 1963 which classified the applicant in Grade B1, Step 1, with effect from 1 January 1962 and which have become definitive. Even if the applicant was unable to grasp the fact that these decisions adversely affected him until the definitions of the duties and powers attaching to each basic post were adopted by the Councils and communicated to the staff on 15 October 1963, he should at least have been able to bestir himself within the time-limit of three months starting on that last date. The question at issue here seems to me to be a difficult one. Mr Müller states that the decision of 28 March 1963 was taken on the basis of Articles 45 and 108 of the Staff Regulations. Thus it constitutes promotion to a higher grade in Category B and Mr Müller, who was still unaware of the definitions of the duties and powers attaching to each basic post, tried to obtain the most favourable grading which he was then in a position to claim. It was only from the Secretary-General's letter of 2 July 1964 that he learned that the allocation of Grade B1 was the result of being graded in accordance with Article 102 of the Staff Regulations. He was thus in a position to draw his own conclusions concerning the step, and this is what he did in his complaint of 15 July. Nevertheless it remains true that the decision of 21 June 1963 classifying the applicant in Grade B1, Step 1, as from 1 January 1962 adversely affected him from the moment when it was taken in so far as he was given a step lower than the one which he claims and less seniority within it than he claims. Furthermore, when the Secretary-General let the applicant know of this decision, he made it clear to the applicant that he could not agree with the argument which the applicant had put forward. Thus the applicant's position was definitely settled at that time. The definitions of duties and powers came later. Can it be said that these constituted a new material factor of a nature such as to justify the claims in Mr Müller's present application? The judgment in Application 28/64, dealing with the grade which Mr Müller could claim, holds that the decision applying the definitions of duties and powers adopted by the Councils to his case was only taken on 18 July 1964 and was only communicated to him on 8 October 1964. He concludes from this that an application concerning this grade initiated on 2 July 1964 is rendered valid by the later decision confirming the position which he impugns. But what was this decision of 18 July 1964? It is a collective decision which fixes the grading of the posts of a certain number of officials. Dealing with Mr Müller it reads as follows: “Description of post: Assistant Principal — Grade: B1 — career bracket B1 — date of appointment: 1.1.62”. Nowhere is any reference made to the step or to the date of seniority within that step. I am tempted by this to think that, as regards these matters, which were dealt with by the decisions taken in 1963, the decision of 18 July 1964 did not constitute any new factor and did not start time running afresh in respect of the complaint. On this view, Application 43/64 is out of time. But if one considers the matter from the opposite viewpoint, the question arises Whether the liberal solution adopted by the judgment in Case 28/64 can be extended to cover the present case. The administrative position of a servant is his position as a whole. It is defined not only by a grade but by a step, and the decision settling his grade and his career bracket cannot be considered separately from the step which he has in the grade allotted to him. It is for this reason that I shall in fact suggest to you — not without some hesitation — that the objection of inadmissibility based on lapse of time put forward by the defendants should fail. If you were not to accept this view of the matter another question would arise, although Mr Müller does not directly refer to it for propounding the admissibility of the present case. This is the question whether the judgment in Case 70/63 (Collotti), given on 7 July 1964 and thus eight days before the complaint submitted to the Secretary-General, would not constitute a factor of a nature such as to start time to run afresh in any event. However my answer to this question is that clearly it would not. A judgment only has effect as between the parties to the action and cannot therefore constitute a new factor causing time to start to run afresh to the benefit of other officials who are in an analogous position. These other officials ought, where applicable, to have lodged their claims within due time, just like the person benefiting from the judgment in the case itself. A favourable judgment can only have been given because the application must first have been deemed admissible as having been made within the prescribed time-limit. The contrary solution would make it possible for decisions of a settled and definitive nature to be open to challenge indefinitely, which would undermine the stability of administrative positions, stability being one of the conditions for good administration. For this reason alone such a solution must to my mind be rejected.