II —

Under the terms of Article 5 of the Staff Regulations posts are classified, according to the nature and importance of the duties to which they relate, in four categories, each comprising a certain number of grades divided into career brackets ordinarily containing two grades each. A table appearing in Annex I shows basic posts and corresponding career brackets and on the basis of this table, after consulting the Staff Regulations Committee, the institution is required to define the duties and powers attaching to each post. Secondly, by virtue of Article 7, the appointing authority is to assign each official by appointment or transfer to a post in his category or service which corresponds to his grade. It is clear from this that a servant is entitled not only to remain in the same grade and to receive the corresponding remuneration, but also to be entrusted with duties and powers which are in accordance with the post corresponding to the grade which he holds in the administration. However, a certain area of uncertainty must arise from the inevitable overlapping of posts and from the fact that the various terms employed in their definition do not always correspond to clearly-defined concepts. You have seen this in questions of integration when the servants involved maintained that the duties which they performed in fact corresponded to a post in a higher grade than that in which they had been established. Here the problem is reversed: the official is complaining that he is being made responsible for duties which are inferior to those required by his post and grade. Mr Klaer holds Grade Al which in itself constitutes a career bracket; the basic post in this grade is that of Director-General, which is defined by the table adopted by the High Authority on 18 December 1962 as an official who ‘directs an administrative unit of the highest echelon’. The Unclassified Adviser, who is defined as ‘a very highly-qualified official with he task of advising the institution or engaged in top-level studies’ also holds Grade Al. This is the position held by Mr Klaer. On the other hand, posts in Grade A2 are those of either a Director who ‘directs an important administrative unit under the direct authority of a Director-General or, exceptionally, the Institution’, or a Principal Adviser who is a ‘highly-qualified official with the task of advising the Institution or a Directorate-General’, or even a ‘highly-qualified official engaged in specialized studies’. The applicant's argument is that the new duties assigned to him by the decision of 2 December 1964 are inferior to the level which can be assigned to an Unclassified Adviser and, therefore, to Grade Al. I shall pass over the fact that neither the Annex nor the definition of posts mentions the post of assistant to the Director-General (or of assistant of the Director-General, since both terms have been employed). You have already considered that these two documents cannot be exhaustive. I shall also pass over the fact that the former Staff Regulations of Officials of the ECSC mentioned a post of Assistant Director-General in Grade A2; although this is evidence of a tendency it cannot be conclusive. The important factor is not the designation but the content of the duties performed. The High Authority emphasizes on this point that it does not concern itself with defining the detailed activities of its Advisers; such activities are necessarily linked to those of a Directorate-General and take various forms depending on the internal organization of the work but implying the pre-eminence of the Director-General in the running of the department for which he alone is responsible. Such pre-eminence appears here in particular in so far as it is the Director-General who decides on the ‘specific matters’ for which he may give a ‘complete delegation’ of powers to the senior official who is his assistant; similarly, in the case of a difference of opinion between the latter and the Director-General over practical details of coordinating the departments and distributing and performing the tasks involved, it is normal for the final decision to be taken by the Director-General. Thus, Mr Klaer was not subordinate to the Director-General in the administration but rather in the performance of their functions the latter took precedence over him. Is this not rather a play on words? The precedence taken by the Director-General over the applicant cannot be justified by superiority of grade—a Director-General and an Unclassified Adviser are both in Grade A1—but it is justified by his position as Head of an administrative unit and this involves a certain subordination of his assistant. The framework of his action will be laid down for him and he will receive instructions on the direction which his activities shall take and the procedures to be employed. For example, although it is stated in the Schedule to the contested decision that Mr Klaer shall, at external meetings, express the point of view of the Directorate-General in the absence of the Director-General, this point of view will not be drawn up on the basis of the applicant's opinion but on that of the Director-General. We have seen also that the Director-General alone has the power to decide on the matters for which he believes it necessary to delegate full powers to the assistant. This is all evidence of a subordinate position in relation to the Director-General, which is perfectly logical since to be subordinate is the essence of the position of an assistant. What is at issue in this case is whether the contested decision, to the extent to which it produced these results, constitutes a decision adversely affecting the applicant and prejudicing the rights which he holds under the Staff Regulations. I believe that the answer to this question must be in the affirmative. It follows, at least by implication, from the table of definitions of basic posts that servants in Grade Al can only be responsible to the High Authority or its working groups. By definition this applies to a Director-General; it is expressly stated as regards an Unclassified Adviser with the task of ‘advising the Institution’; the definition of duties in career bracket A2 confirms this result inasmuch as it specifies that a Director is ‘under the direct authority of a Director-General or, exceptionally, the Institution’, and that a Principal Adviser has the task of ‘advising the Institution or a Directorate-General’. The same concept appears throughout the table and places the holder of a post under the authority of the official in the career bracket immediately superior: A Head of Division in Grade A3 is under the authority of a Director in Grade A2 — a Principal Administrator in Grade A4 is the head of a sector of activity within a Division, or the Assistant to a Head of Division, and so on. It is possible that this system is too rigid but it must be accepted as it is and it does not appear to allow any official in Grade Al to be placed under the authority—for the issue in this case is basically one of authority—of another official in the same grade. It is true, of course, that certain duties arising under the 1963 document setting out Mr Klaer's authority, in the exercise of which, as is stated in the contested decision, Mr Klaer was directly responsible to the High Authority, were performed at the Directorate-General for Economy and Energy. The applicant was required to ensure coordination in questions on transport with the other departments of the High Authority; this entailed the existence of working relations between the applicant and this Directorate-General, without the applicant's being integrated into it and being in no way subordinate to its Director-General. This is quite different from his position under the decision of 2 December 1964, by which he is attached to the Directorate-General in question as assistant to the Director-General. It does not matter that in the performance of his duties assigned under the earlier authority Mr Klaer continues to be responsible only to the Institution, since the new duties assigned to him are too important to be, as the defendant Institution suggests, a mere accessory to or extension of his former duties in Grade Al with which they have just been merged. They are, in fact, quite distinct and they must be assessed separately. Let me make a final observation on this point. The duties of the post of assistant to the Director-General for Economy and Energy were entrusted both to the applicant and to Mr Cros at the same time; the Directorate in which the latter was employed had been abolished by departmental reorganization and he holds Grade A2. Although Mr Klaer takes a certain precedence over the latter in that he alone is empowered to take the place of the Director-General in the absence of that official, one cannot but be surprised to see two servants in different grades jointly performing the same duties. The High Authority states that its intention was merely to give comparable prestige and ‘functional’ authority to the new duties of assistant to the Director-General especially created for these two officials, in order that they collaborate at the same level. This is possible, but in that case the level in question would be that of Grade A2. Two conclusions are to be drawn from this. The decision of 2 December 1964 is not merely an internal measure for the organization of the department which exists within the context of the administrative authority; it concerns the individual position of the applicant and the rights which, in my opinion, he holds under the Staff Regulations, by assigning to him duties which do not correspond to the post and grade which he holds in the administration. This being so, it is admissible for Mr Klaer to contest this decision and, for the reason which I have just given, he is entitled to obtain its annulment.