2.

First comes the claim for the annulment of the decision of 18 June 1969 appointing the applicant a Principal Adviser in the Directorate General for Transport. Two grounds were given for this in the application. The applicant claims that the issue of the contested decision did not correctly comply with the judgment of the Court of Justice of 6 May 1969. In addition to that the duties of a Principal Adviser are not equivalent to those of a director and therefore the applicant should not be appointed a Principal Adviser when earlier he had fulfilled the duties of a director. In considering this argument the first thing to bring to mind is the reasons given in the judgment in Case 17/68 for annulling the appointment of the applicant as a Principal Adviser in the Directorate General for Transport. In my opinion a reading of the judgment leaves no doubt on this point. The fact is that the decision of 20 March 1968 which was then contested was only criticized and annulled because the initial selection of A 2 officials whose employment was to be terminated was made on that day, in other words because the appointment as a Principal Adviser was intended to prepare the way for the decision terminating his employment taken later and because this was done under the mistaken assumption that the applicant intended to leave the service voluntarily, so that his performance and capabilities need not be taken into account in selecting the officials who were to remain in the service. This emerges clearly from the finding in the judgment that the Commission intended at its meeting of 20 March 1968‘to draw up a provisional list of officials of Grades A 1 and A 2 likely to be affected during the following weeks by a measure terminating the service of officials’ (Rec. 1969 p. 70), and in the sentence ‘As a result the Commission removed the applicant from his post of director and transferred him to a post as Principal Adviser but made it clear that the decision was provisional until such time as a final measure could be taken’ (Rec. 1969, p. 71). There is, on the other hand, no indication in the judgment to the effect that the duties of a Principal Adviser were not equivalent to those of a director, making it contrary to the Staff Regulations to appoint an A 2 official as Principal Adviser. There can therefore be no question of the judgment in Case 17/68 providing grounds for the annulment of the decision in dispute which on this occasion was not a measure preparatory to later dismissal, and therefore served a purpose completely different from that of the decision of 20 March 1968. Let us therefore ask, independently of the abovementioned judgment, what results from the argument based on the lack of equivalence of duties (between a Principal Adviser on the one hand and a director on the other) for the purpose of evaluating the applicant's claim. On this point it must doubtless be admitted that there are certain differences as regards the opportunities to act and to obtain information, the number of collaborators and even the prestige attached to both positions in the eyes of the staff. However, I would be inclined to agree with the Commission that such factors, whilst they may also play a rôle in assessing directors' posts, are not decisive for the purpose of the examination in this case. The real deciding point is that according to the binding definition of posts in the service, the so-called ‘job. description’, the duties of Principal Adviser and of director are assumed to be equivalent in the law governing the staff of the Communities. This the Commission also observes, rightly, in another connexion (one only has to think of the organization of its legal department). On the basis of this fact, the existence of different opportunities for promotion and career prospects cannot be accepted as proved. Nor is it right to assume any difference in principle regarding the stability of the service relationship, even though it must be admitted that the duties of a Principal Adviser in the field of research may not be as constant as the duties of a director. The decisive factor is that Article 41 of the Staff Regulations contains provisions for reducing the number of posts, which in such a case are designed to ensure the objectivity of the selection procedure and thus prevent those holding posts as Principal Advisers (such as we are now concerned with) from being placed in particular jeopardy. Since this also invalidates the argument that the duties of a Principal Adviser are less important and since in the case-law of the Court no official can claim any particular post in the service, but only at most to be given duties of a particular level, we are left with the conclusion that the applicant cannot hope for any success in his first claim on the basis of the arguments set out in the application. However the applicant has now raised a further complaint in his reply, which could lead to a different evaluation of the first claim were it not excluded from consideration by our rules of procedure. What the applicant claimed in his second pleading was that in fact his appointment as a Principal Adviser was not made in the interests of the service. It should be seen as an emergency solution, because the director's post which became vacant in October 1968 in the Directorate General for Transport had been filled otherwise, by way of promotion, and so could no longer be considered as a possible post for the applicant. This interpretation of the facts is said to be borne out in particular by the fact that duties relating to research of the kind entrusted to the applicant are assumed (by a total of five high-ranking officials) in several different administrative units. In fact we must follow the Commission in saying that this argument cannot be taken into account in view of Article 42 of our Rules of Procedure and the fact that they are in no way implied in the grounds given in the application. Whilst other cases may give rise to doubt whether or not Article 42 of the Rules of Procedure is rightly applied, the present proceedings do not appear to me to leave the slightest doubt on this point. What immediately strikes one in this case is that in an extremely concise application, which takes a mere 40 lines or so to set out the facts and grounds for four claims, a handful of grounds of application are merely indicated and that important arguments independent of these were only presented at a later stage in the proceedings. I think it must be made clear once again in the judgment that this method of proceeding cannot be tolerated. However, leaving aside the objections on the procedural aspects even the actual content of the complaint which was belatedly raised proves in the end to be of no avail to the applicant's case. This is certainly true of the argument that duties in connexion with research such as those entrusted to the applicant were undertaken in several different administrative units of the Commission. Apart from the fact that the Commission has in part contested the accuracy of the applicant's assertions, such overlapping of areas of duty in administrative structures, which indicate the size of the Commission's departments, is frequently unavoidable, and this settles the point. But it has not been proved that in this particular case giving such functions to certain officials is not in the interests of the service. Moreover, one cannot agree with the claim that the appointment of the applicant as a Principal Adviser was an emergency solution on the part of the Commission. In my opinion the Commission can be believed when it declares that if it had been necessary in order to comply with the judgment in Case 17/68 it would have been prepared to transfer the applicant to a post of director, particularly since it had managed to keep such a post available in its budget. Since this was not required of the Commission, however, the way in which it organizes its administrative departments must in principle be left to its own discretion. This leaves us with the conclusion that the first claim in the application must be rejected as unfounded even if, contrary to the principle in Article 42 of the Rules of Procedure, the arguments which were introduced by the applicant late in the proceedings were to be included in our examination.