OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 9 JULY 1981

My Lords,

The Commission's Medium and Long-term Translation Service forms part of Directorate-General IX, Personnel and Administration. At the material time that Directorate-General comprised five directorates in Brussels and one in Luxembourg. One of the directorates in Brussels, entitled “Translation, Documentation, Reproduction and Library” consisted at the material time of eleven divisions, seven of which were devoted to translation: there was one division for general matters of translation and one for each of the official languages. The directorate in Luxembourg was divided into seven divisions, of which the Medium and Long-term Translation Service is one. That division was divided into eight sections, one for each official language, one concerned with general affairs and planning, and one with questions of terminology.

In these proceedings five of the heads of those sections complain of the Commission's implied refusal of their demand to restructure the Commission's Medium and Long-term Translation Service so as to convert the existing sections into divisions of the kind existing in Brussels and consequently to make the senior person a head of division instead of a head of section. The dispute has a long history.

As early as June 1973 the heads of the sections in Luxembourg addressed to the President of the Commission, then Mr Ortoli, a letter in which they maintained that they were less favourably treated than their counterparts in Brussels and in the Parliament, who had the title of heads of divisions with the grade L/A 3. They asked that their own posts should be converted accordingly. Mr Ortoli replied that, although the classification of heads of sections correctly described the nature of the work and reflected the current organization and needs of the service in Luxembourg, in the light of a likely increase in the work the Commission contemplated a review of the structure of the Medium and Long-term Translation Service and a request, in the draft budget for 1975, for funds to enable it to solve the problem. The heads of sections and their successor exchanged correspondence with the President of the Commission in much the same vein throughout 1973 and 1974.

In 1974 and 1975 two Members of the European Parliament put written questions to the Commission on the subject: see PQ 19/74 of 20 March 1974, OJ 1974 C 61/24; PQ 189/74 of 21 June 1974, OJ 1974 C 113/14; and PQ 614/74 of 10 January 1975, OJ 1975 C 86/24. By its replies, particularly the latest of them, the Commission confirmed that it intended to proceed to the gradual reorganization of the Medium and Long-term Translation Service so as to create divisions in place of sections and stated that provision was made in the budget for 1975 for two posts of Grade L/A 3.

Those posts were allocated to two of the heads of sections in Luxembourg, who were given the rank of counsellor. In response to a letter from all seven heads of section, expressing regret that the holders of the new posts were not designated as directors, the President of the Commission, by letter dated 19 November 1975, indicated that the decision to award those two the rank of counsellor was motivated only by the need to keep intact a homogeneous administrative structure in Luxembourg. The President confirmed that the Commission adhered to its plan to restructure the Medium and Long-term Translation Service gradually.

On 12 July 1978, shortly after the entry into force of Council Regulation No 912/78 of 12 May 1978 amending the Staff Regulations (OJ 1978 L 119/1) the heads of sections in Luxembourg (then numbering eight) again wrote to the President of the Commission contending that it would be natural and logical to reclassify them with the Grade L/A 3, since their existing Grade L/A 4 had become L/A 5/4 which was regarded as a downgrading. They also said that nothing justified further delaying their classification as heads of divisions. The Commission registered this letter as a request within Article 90 (1) of the Statute but did not at that stage reply to it. On 12 March 1979 the heads of section again wrote to the President of the Commission repeating in substance their letter of 12 July 1978, this time relying on the fact that the Commission had a smaller proportion of staff of Grade L/A 3 then other Community institutions. Three months later they had received no reply to either of those letters.

On 21 June 1979, therefore, each of the five applicants addressed to the Commission a communication headed “Demande au titre de l'article 90 (1) du Statut” asking the Commission to take all administrative and budgetary steps necessary to transform his or her post to one of a head of division with Grade L/A 3. On 31 July 1979 Mr Tugendhat, a Member of the Commission, replied to the letter sent on 12 July 1978. He stated that in its draft budget for 1980 the Commission had applied for funds which, if granted, would enable it to apoint an Assistant Director-General for Directorate-General IX at Luxembourg. This in turn ought to permit a revision of the structure of the Directorate-General in the context of the 1981 budget. There was, however, in this letter no more specific promise.

Accordingly, the applicants on 17 January 1980, submitted their complaints under Article 90 (2) of the Staff Regulations. They received no reply to their complaints and accordingly they filed their appeals, under Article 91 (3), on 16 August 1980.

The Commission maintains that the present appeals are inadmissible. It contends that the letter dated 12 July 1978 amounted to a request, within the meaning of Article 90 (1) of the Staff Regulations, was registered as such, and constituted the point of departure for the time-limits prescribed by that and the subsequent article. According to this reasoning, the applicants' letters dated 21 June 1979 could not give rise to new periods for complaining and appealing since they had the same object as the previous collective request.

It is now well-established that an applicant who fails to challenge a decision within the periods specified in Articles 90 and 91 of the Staff Regulations may not rectify his fault by the simple expedient of challenging a subsequent communication of the competent authority which confirms the previous decision. In the present case, the question is whether the letter dated 12 July 1978 is properly to be characterized as a request.

A communication which does not bear the title “Demande” (or “request”) and does not refer expressly to Article 90 of the Staff Regulations may amount to a request within the meaning of that article, if it discloses with sufficient clarity an express invitation to the competent authority to make a specific decision with respect to identified persons. (See e.g. Joined Cases 22 and 23/60 Elz v High Authority [1961] ECR 181 and Case 79/70 Müllers v Economic and Social Committee [1971] ECR 689.) If the letter is read in isolation, it is arguable that it is a “demande”, although principally concerned with the Grade L/A3 rather than the post of head of a division. It seems to me, however, that it is unrealistic to deal with the letter in isolation, it must be read in the context of the protracted exchange of correspondence which had taken place between the applicants, and their predecessors, and successive Presidents of the Commission, in which the former repeatedly argued for the restructuring of their service. Against this background, the letter of 12 July 1978 does not seem to me to be a request that the authority take a decision relating to the signatories of the letter within the meaning of Article 90 (1). It is rather part of a series of communications designed to persuade the competent authorities to effect certain changes in the structure of the organization. Accordingly, I do not consider that these applications are inadmissible.

Even if the letter dated 12 July 1978 is a “request” within the meaning of Article 90, Mr Stefan Bauer's appeal is not thereby rendered inadmissible since he did not sign that letter. It follows that it would be necessary to consider Mr Bauer's application upon its merits.

The applicant's claim in these proceedings is thus that the Commission is in breach of duty to them in that it has not created divisions (rather than sections) in the Directorate-General in Luxembourg, with the consequence, that there would, at the least, be a possibility of their being appointed as heads of divisions.

For my part I accept at once the submission of counsel for the Commission that the letters and the parliamentary answers relied on by the applicants do not in themselves create an obligation enforceable by the applicants. They create at most a statement of intent, or, (as was said in argument) a moral undertaking in the circumstances outlined to investigate, and when possible to implement, a restructuring of the service.

That, however, is not the end of the case. Counsel for the applicants relied primarily on the provisions of the Regulations and on general principles of law to support their claim. The fact that what was said in the letters and in the answers has not yet been done is relied upon to establish that the Regulations and these principles of law have been violated. Article 5 (3) of the Regulations provides that “Identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service”. The relevant group is thus a “category”, not a grade, or posts within the same specialized professional field formed into services embracing a number of grades in one or more of the categories.

What precisely is covered by the phrase “Identical conditions of ... service career” is not, at any rate to me, immediately clear. It obviously does not mean identical conditions of service, or otherwise, e.g. salaries would have to be identical within a category. It seems to involve, at any rate, the concept that people doing identical work should be treated equally, in particular as to rank, and that the same avenues for promotion should be available to them. This approach seems to be suggested by the French text “des conditions identiques de recrutement et de déroulement de carrière”. It seems also to be recognized in the judgment of the Court in Case 102/63 Bottrsin v High Authority of ECSC [1964] ECR 691 at p. 708, where it was said that “The aim of the principle of the correspondence between duties performed and the grade which forms the basis of Annex I to the Regulations as also of Article 5 referring to the definition of duties and powers drawn up by each institution, is on the one hand to avoid inequality of treatment between officials to whom duties of a comparable nature have been validly assigned, and on the other hand to ensure that no official is required to give services which do not fall within the definition of the duties attaching to his post.”

It is true that by Article 4 no appointment or promotion shall be made for any purpose other than that of filling a vacant post as provided for in the Staff Regulations. Accordingly if an individual is appointed to a particular post, but is asked to and does carry out duties which belong to a higher post, he cannot claim that that of itself justifies the reclassification of his post in a higher grade (see Boursin and Case 77/70 Prelle v Commission [1971] ECR 561 at p. 566). This, however, as I see it, is not an answer to the claim since the complaint is not initially that the claimants were not promoted but that the posts of heads of division were not created.

This alleged breach of Article 5 is closely linked with a second argument that there is a breach of the general principles of equity and nondiscrimination which ought to exist in relations between the Commission and its officials.

Assuming that Article 5 is to be read as including the matters referred to above, and that the general principle applies, there still remains the question as to whether those between whom it is sought to make a comparison are to be regarded as in pari materia. This seems to me to be a matter for the Commission to assess. On the one hand as Mr Advocate General Reischl said in Case 14/79 Loebisch v Council [1979] ECR 3679 at p. 3701“In principle the level of posts in a grade at one institution must not be be allowed to be quite differently structured from those in another by the application of different criteria.” Yet clearly “the institutions have a wide discretion as to the arrangements for their own organization. It is therefore possible to speak of unequal treatment only where officials of the various institutions who perform equal duties, are treated differently.” Both these propositions seem to me to apply to a situation where officials employed in different branches of the same institution are concerned.

As the Court put it in the Loebisch case at page 3692 “Each institution controls its own detailed list of posts and has a wide discretion as regards its internal organization”. It is, primarily for the Commission to determine the needs of its organization, and to assess the relative equivalence of posts. That does not, of course, mean that the Commission's decision is entirely removed from the Court's scrutiny. Just as in Case 61/70 Vistosi v Commission [1971] ECR 542 the Court thought that the removal from an official of departments for which he had been responsible might constitute a breach of Articles 5 and 7, so it seems to me that the Court can interfere if the Commission can be shown to have acted in a way in which no reasonable employer could reasonably act in the light of the Staff Regulations and the general principles referred to above. A decision based on a misunderstanding of the Regulations, or one inspired by irrelevant considerations, would justify the Court in setting aside the Commission's exercise of its discretion.

The same discretion and the same powers of review exist in relation to the decision as to how many officials should be appointed to a particular grade (here L/A 3) in the various institutions.

In the present case the tenor of the Commission's attitude initially was that the arrangements in Luxembourg were right for the conditions existing there, including the amount of work and the number of officials engaged. The reorganization proposed was considered in relation to future needs and developments. The Commission still contends both in its written submissions and during oral argument that there are differences between the size of the organization and the volume of work in Brussels and that in Luxembourg, which justify the distinction in structure, even if much of the work is the same and of the same degree of responsibility.

The size of the unit is, in my opinion, capable as a matter of law of being a relevant consideration for the Commission to take into account in arriving at its decision. The commanding officer of a division is at a different level from the commanding officer of a brigade even if they both command. It is accordingly for the Commission to make an appreciation of what is needed and what can be afforded in the light of budgetary constraints. I do not consider that the fact that the Commission has indicated that it is intended to create the posts of heads of division, in the future when funds permit, necessarily proves that the Commission is in breach of Article 5 at present. Whether changes in the future size and work load of the department would change the position it is not for the Court to speculate.

It was further contended that the Commission was in breach of its own decision dated 4 May 1978 amending the description of functions of officials in Annex I to the Staff Regulations. The substance of this argument, as I understand it, was that the applicants who have been appointed as counsellors with Grade L/A 3 continue in fact to perform the tasks of heads of sections with Grade L/A 4, whereas the decision of 4 May 1978 describes counsellors as officials with high qualifications called upon to advise on linguistic matters or to discharge specified functions under the control of a Director-General or Director. I do not consider that there is substance in this argument. The three applicants who have been promoted to the rank of counsellor, with Grade L/A 3, may indeed perform the tasks of heads of sections of the kind described under the heading L/A 4 in the decision.

If so, they can hardly be said to have suffered loss since their promotion to the task of counsellor. The remaining applicants do not contend that the decision describes their functions other than accurately.

Finally, it was argued that the contested decision was inconsistent with Article 24 of the Staff Regulations, which embodies the Commission's obligation to protect its staff against attacks on their person or reputation to which they are exposed in performing their duties. The protection envisaged in that article is against acts emanating from third parties: Case 116/78 Bellitani v Commission [1979] ECR 1585 at p. 1600. The article has been construed so as to extend to protection against attacks made on one official by another; Case 18/78 Mme V. v Commission [1979] ECR 2093 at p. 2102. In my view, however, it does not impose on the Commission a duty to protect officials against the Commission itself. In Case 115/76 Leonardi v Commission [1978] ECR 735 at pp. 745-746, the Court found Article 24 inapplicable to a case in which there was an abnormal and excessive delay attributable to the Commission's negligence in dealing with the applicant's accident claim. In the present case, in my opinion, that article is of no avail.

The disappointment of those, (some of whom are now retired) who had hoped for reorganization on the basis of the letters and parliamentary answers is well understandable after this very long time lag, but I am not satisfied by the applicants (on whom in my view the onus lies) that the Commission here has been in breach of duty so as to enable the Court to intervene.

For the foregoing reasons I am of the opinion that the appeals are admissible but that they must be dismissed. In conformity with Articles 69 (2) and 70 of the Rules of Procedure, each party must bear its own costs.