Judgment of the Court (First Chamber) of 7 July 1964. - Simone Minot (née Van Nuffel) v Commission of the European Atomic Energy Community. - Case 93-63.



European Court reports

French edition Page 00959

Dutch edition Page 01007

German edition Page 01051

Italian edition Page 00961

English special edition Page 00489

Danish special edition Page 00521

Greek special edition Page 01161

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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - APPEAL AGAINST DECISIONS CONCERNING THE POSITION OF A SERVANT PRIOR TO THE PUBLICATION OF THE STAFF REGULATIONS - NON-APPLICABILITY OF THE STAFF REGULATIONS BEFORE THE INTEGRATION OF THAT SERVANT

2 . OFFICIALS - INTEGRATION - FAVOURABLE OPINION OF THE ESTABLISHMENT BOARD - NOT BINDING ON THE APPOINTING AUTHORITY

( STAFF REGULATIONS OF OFFICIALS OF THE EAEC, ARTICLE 102 )

Summary

1 . IN CASE OF AN APPEAL AGAINST DECISIONS PRIOR TO THE PUBLICATION OF THE STAFF REGULATIONS CONCERNING THE EXECUTION OF A CONTRACT OF EMPLOYMENT IN FORCE AT THAT TIME, THE RULES IN THOSE REGULATIONS, AND PARTICULARLY THOSE IN ARTICLE 91, CANNOT BE APPLIED BEFORE THE INTEGRATION OF THE SERVANT CONCERNED HAS BEEN PROPERLY EFFECTED .

2 . A FAVOURABLE OPINION EXPRESSED BY THE ESTABLISHMENT BOARD CANNOT BIND THE APPOINTING AUTHORITY; THE LATTER CAN BE BOUND ONLY BY AN UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD .

Parties

IN CASE 93/63

SIMONE MINOT ( NEE VAN NUFFEL ), RESIDING AT AALST ( BELGIUM ), ASSISTED BY ROLAND VAN LINT, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, 6 RUE WILLY-GOERGEN, APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, PIERRE MATHIJSEN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

Subject of the case

APPLICATION :

( A ) PRINCIPALLY, FOR :

1 . AN ORDER FOR THE DEFENDANT TO PAY 516000 FB IN REPARATION FOR DAMAGES SUFFERED BY THE APPLICANT THROUGH BEING DEPRIVED OF THE ADVANTAGES ATTACHING TO HER EMPLOYMENT FROM 1 JANUARY 1959 UNTIL 31 AUGUST 1963;

2 . THE REVERSAL OF THE DECISIONS AGAINST INTEGRATION AND OF DISMISSAL CONTAINED IN THE LETTER OF 25 JULY 1963, AND OF THE PROCEDURE UNDERLYING THE DECISIONS, INCLUDING THE UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD;

A DECISION THAT THE APPLICANT SHOULD BE INTEGRATED UNDER THE STAFF REGULATIONS OF OFFICIALS OF THE EAEC AT A GRADE AT LEAST EQUIVALENT TO THAT OF A 7, STEP 3, WITH EFFECT FROM 17 JULY 1963, WITH ALL THE CONSEQUENCES IN FACT AND IN LAW FOLLOWING UPON THIS;

AN ORDER FOR THE DEFENDANT TO PAY THE ARREARS OF REMUNERATION BECOMING DUE FOLLOWING REINSTATEMENT;

AN ORDER FOR THE DEFENDANT TO PAY 50000 FB IN REPARATION FOR NON-MATERIAL DAMAGE;

3 . AN ORDER FOR THE DEFENDANT TO PAY INTEREST AT THE RATE OF 6% ON ALL THE SUMS WHICH IT IS ORDERED TO PAY;

( B ) ALTERNATIVELY, FOR : 1 . A DECISION THAT THE APPLICANT SHALL UNDERGO A NEW INTEGRATION PROCEDURE;

2 . AN ORDER FOR THE DEFENDANT TO PAY TO THE APPLICANT THE REMUNERATION ( 20000 FB PER MONTH ) RELATING TO THE DUTIES WHICH SHE CARRIED OUT, FROM THE DATE ON WHICH THESE DUTIES ENDED UNTIL THE TIME WHEN A NEW DECISION HAS BEEN VALIDLY TAKEN;

3 . AN ORDER FOR THE DEFENDANT TO PAY THE SUM OF 50000 FB IN REPARATION FOR NON-MATERIAL DAMAGE;

4 . THE PAYMENT OF INTEREST AT THE RATE OF 6% ON THE SUMS MENTIONED ABOVE;

( C ) IN THE FURTHER ALTERNATIVE, FOR :

1 . THE AWARD OF COMPENSATION ESTIMATED AT 200000 FB FOR MATERIAL DAMAGE AND 50000 FB FOR NON-MATERIAL DAMAGE;

2 . AN ORDER FOR THE DEFENDANT TO PAY THE SUM OF 160000 FB IN LIEU OF ADDITIONAL NOTICE;

3 . THE PAYMENT OF INTEREST AT THE RATE OF 6% ON THE AMOUNTS MENTIONED ABOVE .

Grounds

I - ADMISSIBILITY

THE DEFENDANT ALLEGES THAT THE TIME-LIMITS LAID DOWN BY ARTICLE 91 OF THE STAFF REGULATIONS BEGAN TO RUN, IN RESPECT OF THE DECISIONS OF RECLASSIFICATION OF THE APPLICANT DATED 23 APRIL 1959, 3 JULY 1959, 14 JANUARY 1960 AND 5 JULY 1960, AS FROM THE PUBLICATION OF THE REGULATIONS ( 14 JUNE 1962 ) AND THAT THOSE TIME-LIMITS HAD THUS EXPIRED BY THE DATE ON WHICH THE APPLICATION WAS LODGED ( 25 OCTOBER 1963 ); CONSEQUENTLY THE GROUND OF COMPLAINT THAT THE DEFENDANT DID NOT GRANT THE APPLICANT THE GRADE AND SALARY CORRESPONDING TO HER DUTIES MUST BE DISMISSED AS INADMISSIBLE .

THIS OBJECTION OF INADMISSIBILITY CANNOT BE ACCEPTED .

IT IS TRUE THAT ARTICLE 91, TO THE EXTENT THAT IT LAYS DOWN TIME-LIMITS FOR BRINGING APPEALS, IS APPLICABLE TO THE PERSONS MENTIONED IN THE STAFF REGULATIONS ONLY FROM THE DATE OF THE PUBLICATION OF THOSE REGULATIONS .

IN THE PRESENT CASE, HOWEVER, IT IS A MATTER OF DECISIONS TAKEN PRIOR TO THE PUBLICATION OF THE STAFF REGULATIONS, WITH A VIEW TO THE EXECUTION OF THE CONTRACT OF EMPLOYMENT IN FORCE AT THAT TIME . IN THIS CASE THE RULES IN THE STAFF REGULATIONS, AND PARTICULARLY THOSE IN ARTICLE 91, CANNOT BE APPLIED BEFORE THE INTEGRATION OF THE SERVANT CONCERNED HAS BEEN PROPERLY EFFECTED . IN FACT, RECOGNITION IN SUCH CASES OF THE IMMEDIATE APPLICABILITY OF THE NEW STAFF REGULATIONS, WOULD BE TANTAMOUNT TO PREJUDICING THE INTEGRATION DECISION WHICH, APART FROM THE CASE OF OFFICIALS WHO HAVE BENEFITED FROM ESTABLISHMENT GRANTED UNDER THE SYSTEM OF THE OLD STAFF REGULATIONS OF OFFICIALS OF THE ECSC, IS TAKEN ONLY ON THE CONDITIONS LAID DOWN BY ARTICLES 102 ET SEQ . OF THE STAFF REGULATIONS OF THE EEC AND EAEC .

IN CONSEQUENCE, AS THE APPLICANT WAS NOT INTEGRATED AT THE DATE ON WHICH HER APPEAL WAS LODGED, THE TIME-LIMITS IN ARTICLE 91 HAD NOT YET THEN BEGUN TO RUN IN RESPECT OF THE GROUND OF COMPLAINT THAT THE DEFENDANT HAD NOT GRANTED THE APPLICANT BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS THE GRADE AND SALARY CORRESPONDING TO HER DUTIES .

THE OTHER TWO OBJECTIONS OF INADMISSIBILITY RAISED BY THE DEFENDANT IN RESPECT OF THE SAME GROUND OF COMPLAINT ARE ALSO BASED ON THE ALLEGATION THAT THE APPEAL IS OUT OF TIME AND THEY SHOULD THEREFORE BE DISMISSED FOR THE REASONS SET OUT ABOVE .

THE DEFENDANT HAS ALLEGED, LASTLY, THAT THE GROUND OF COMPLAINT IN QUESTION WAS INADMISSIBLE BECAUSE THE CLASSIFICATION OF AN OFFICIAL DEPENDS UPON THE DISCRETIONARY POWER OF THE ADMINISTRATION . THIS ARGUMENT MUST BE CONSIDERED AS TOUCHING THE SUBSTANCE OF THE CASE AND NOT ITS ADMISSIBILITY .

THE DEFENDANT HAS NOT DISPUTED THE ADMISSIBILITY OF THE APPLICANT'S OTHER CONCLUSIONS AND NO OBJECTION CONCERNING ADMISSIBILITY NEED IN THE PRESENT CASE BE RAISED BY THE COURT OF ITS OWN MOTION .

THE APPLICATION IS ADMISSIBLE .

II - ON THE SUBSTANCE OF THE CASE

A - THE GROUND OF COMPLAINT RELATING TO THE IRREGULARITY OF THE INTEGRATION PROCEDURE

THE APPLICANT REFERS TO THE DELAY WITH WHICH THE ESTABLISHMENT BOARD DELIVERED ITS UNFAVOURABLE REPORT THAT IS, ON 9 JULY 1963, WHILST THE ESTABLISHMENT REPORT, DATED 17 APRIL 1962, DECIDED IN FAVOUR OF HER INTEGRATION, AND THAT THE ESTABLISHMENT BOARD HAD PREVIOUSLY EXPRESSED A FAVOURABLE OPINION ON 25 JULY 1962 ON THE BASIS OF THIS ESTABLISHMENT REPORT .

THE FAVOURABLE OPINION EXPRESSED BY THE ESTABLISHMENT BOARD ON 25 JULY 1962 WAS NOT CAPABLE OF BINDING THE APPOINTING AUTHORITY . IN FACT ONLY AN UNFAVOURABLE OPINION OF THE ESTABLISHMENT BOARD CAN BE BINDING ON THE APPOINTING AUTHORITY .

THE APPLICANT COULD NOT THEREFORE TAKE ADVANTAGE OF ANY RIGHT BASED ON THE FAVOURABLE OPINION OF 25 JULY 1962, AS LONG AS THE APPOINTING AUTHORITY HAD NOT ARRIVED AT ITS DECISION .

IN ADDITION THE DELAY ALLEGED IN RESPECT OF THE UNFAVOURABLE REPORT IS THE FAULT OF THE APPLICANT HERSELF, WHO WAS NEVER ABLE TO PRODUCE IN DUE FORM THE DOCUMENTS REQUESTED OF HER IN ORDER TO COMPLETE HER FILE .

IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE GROUND OF COMPLAINT IS UNFOUNDED .

B - THE GROUND OF COMPLAINT IN RESPECT OF THE REASONS FOR REFUSAL OF ESTABLISHMENT AND FOR DISMISSAL

THE APPLICANT ALLEGES THAT THE FACTS RELIED UPON BY THE ESTABLISHMENT BOARD TO SUPPORT ITS UNFAVOURABLE OPINION ARE INACCURATE .

IT APPEARS FROM THE LETTER OF 28 APRIL 1964 FROM THE NATIONAL SECRETARIAT OF CATHOLIC EDUCATION IN BRUSSELS THAT THE INSTITUTE OF THE LADIES OF MARY AT AALST NEVER ORGANIZED COMMERCIAL STUDIES AT UNIVERSITY LEVEL AND THAT THE DIPLOMAS ISSUED BY THAT INSTITUTE CANNOT BE REGARDED AS DIPLOMAS OF HIGHER EDUCATION, SUCH AS FOR EXAMPLE THAT OF A GRADUATE IN COMMERCIAL SCIENCE . NO OBJECTION HAS BEEN RAISED IN RESPECT OF THIS LETTER .

THE DISPUTED DECISION IS THUS JUSTIFIED IN STATING THAT THE FACTS COMPLAINED OF AND THE FAILURE OF THE APPLICANT FOR FIVE YEARS TO ESTABLISH THE TRUTH SHOW BY THEMSELVES CONDUCT INCOMPATIBLE WITH INTEGRATION UNDER THE STAFF REGULATIONS .

IT FOLLOWS THAT THE GROUND OF COMPLAINT MUST BE DISMISSED .

C - THE CLAIM FOR COMPENSATION

1 . THE PERFORMANCE BY THE APPLICANT OF DUTIES HIGHER THAN THOSE OF HER GRADE AND SALARY

THE APPLICANT WHO WAS ENGAGED ON 1 JULY 1958 TO CARRY OUT ' ADMINISTRATIVE DUTIES ' WAS CLASSIFIED IN CATEGORY C .

SHE WAS SOON GIVEN ' DRAFTING ' DUTIES, WHICH JUSTIFIED HER CLASSIFICATION IN CATEGORY B .

SHE WAS ACTUALLY CLASSIFIED IN THE LATTER CATEGORY AS FROM 1 JANUARY 1960 .

THE APPLICANT CLAIMS THAT HER DUTIES WERE REALLY ' PLANNING ' DUTIES AND RELATED TO CATEGORY A .

SHE POINTS OUT IN SUPPORT OF THIS CLAIM THAT IN HER ESTABLISHMENT REPORT DATED 17 APRIL 1962 THERE APPEARS THE NOTE MADE BY THE DIRECTOR - GENERAL THAT ' THESE ARE CATEGORY A DUTIES '. THIS SIMPLE UNEXPLAINED NOTE IS NOT DECISIVE .

IT IS PROBABLE THAT THE PERSON CONCERNED, IN CARRYING OUT THE TASKS ENTRUSTED TO HER, SHOWED EVIDENCE OF ABILITY SUPERIOR TO THAT WHICH IS GENERALLY EXPECTED OF SERVANTS IN CATEGORY B, WHICH MIGHT HAVE ALLOWED CERTAIN PROSPECTS OF LATER PROMOTION TO EMPLOYMENT IN THE HIGHER GRADE . IT CLEARLY FOLLOWS, MOREOVER, FROM THE DETAILS FURNISHED BY THE DEFENDANT AS TO THE REAL NATURE OF THE DUTIES OF THE APPLICANT THAT THE LATTER ACTUALLY CARRIED OUT ' DRAFTING ' DUTIES RELATED TO CATEGORY B, IN WHICH CATEGORY SHE WAS ACTUALLY PLACED AFTER A YEAR AND A HALF OF SERVICE .

THE APPLICANT HAS NOT BEEN ABLE TO PROVE THAT SHE IN FACT CARRIED OUT DUTIES RELATED BY THEIR NATURE TO CATEGORY A . FURTHERMORE, SHE DID NOT POSSESS ANY OF THE QUALIFICATIONS NORMALLY REQUIRED FOR PROMOTION TO THAT GRADE . IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANT HAS NO RIGHT TO COMPENSATION UNDER THIS HEADING .

2 . THE DAMAGE SUFFERED FROM THE DECISION AGAINST INTEGRATION AND OF DISMISSAL

ANY RIGHT OF THE APPLICANT TO COMPENSATION FOR THE DAMAGE WHICH THE DECISION AGAINST INTEGRATION AND OF DISMISSAL MAY HAVE CAUSED HER MUST IN THIS CASE BE DENIED . IN FACT THE DISPUTED DECISION DOES NOT SHOW ITSELF TO BE VITIATED BY ANY OF THE DEFECTS ALLEGED BY THE APPLICANT .

CONSEQUENTLY, TAKING ACCOUNT OF THE NATURE AND THE OBJECT OF THAT DECISION, IT CANNOT AMOUNT TO A WRONGFUL ACT OR OMISSION AND THUS CAUSE UNLAWFUL DAMAGE UNLESS IT CONTAINS SUPERFLUOUS CRITICISM IN RESPECT OF THE APPLICANT, WHICH IS NOT ALLEGED IN THE PRESENT CASE . FURTHER, THE REASONS FOR THE DISPUTED DECISION CONTAIN NO SUPERFLUOUS CRITICISM AND ARE LIMITED TO THE INDISPENSABLE MINIMUM .

3 . INADEQUACY OF NOTICE

IT IS NECESSARY TO STATE, FIRST OF ALL, THAT THE NOTICE OF ONE MONTH IS IN ACCORDANCE WITH THAT PROVIDED FOR IN THE APPLICANT'S CONTRACT OF EMPLOYMENT .

IN APPLICATION OF ARTICLE 102 ( 2 ) OF THE STAFF REGULATIONS, THE APPLICANT HAS IN ADDITION RECEIVED COMPENSATION CORRESPONDING TO TWO MONTHS' BASIC SALARY, AS PROVIDED FOR IN ARTICLE 34 OF THE REGULATIONS . IN THE PRESENT CASE THIS GRANT, WHICH IS DIRECTLY PROVIDED FOR BY THE REGULATIONS, APPEARS SUFFICIENT FOR IT TO BE DECIDED THAT THE DEFENDANT HAS DISCHARGED ITS OBLIGATIONS CONCERNING NOTICE .

IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE CONCLUSIONS OF THE APPLICANT MUST BE DISMISSED .

Decision on costs

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

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

THE APPLICANT HAS BEEN UNSUCCESSFUL IN ALL HER SUBMISSIONS .

FOR THE REASONS SET OUT ABOVE EACH PARTY MUST BEAR ITS OWN COSTS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION N . 93/63 AS UNFOUNDED;

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .