(a)

Dealing first with the effects of the decision to promote, the applicant above all relies on the fact that since February 1964 he has performed the duties of the post to which he was promoted. In such cases the Commission has always applied the rule that promotions were to take effect retroactively. The principle of equality of treatment of officials accordingly demands that the applicant's case shall also be dealt with in accordance with this established practice. The Commission counters this by contesting that the applicant has performed the duties of the higher post from February 1964 and that there has been a general practice of retroactive promotion. Even apart from this the Commission argues that in making the decision in dispute it was bound by its rules of 26 May 1965 relating to the date of coming into force of promotions and appointments and that these rules allow for retroactive effect under special circumstances which do not apply in the case of the applicant. To resolve this argument it must be said at once that nothing can be gleaned from the Staff Regulations themselves, in particular the provisions therein as to promotion. From the Staff Regulations all that is clear is that there is no actual entitlement to promotion. On the other hand it admittedly does not in principle exclude retroactive promotions. Looked at in this way it really does appear that the applicant's case could most easily be advanced by referring to the relevant administrative practice of the Commission, that is to say the application of the principle of equality of treatment. Meanwhile—and I have already pointed this out—there are two difficulties in this respect. First, the fact that the Commission has emphatically disputed that there ever was an administrative practice of the kind described by the applicant. In fact, the Commission argues, retroactive appointments and promotions have only taken place in certain exceptional circumstances. If we wanted to be clear on this point, then we should have to fall back on the proof tendered by the applicant. The second difficulty is connected with the question whether the applicant can rely at all on an administrative practice which may possibly have existed in the past, or whether in his case all depends on the rules made in May 1965 which have replaced the previous procedure. In pursuing this question—at the same time this will save us going into the proof before referred to—then, to give you the result of my inquiry at the outset, one does indeed get the impression that the Commission's view is correct. In the first place one is forced to agree-that the Commission's attempt by means of its rules of 26 May 1965 to create binding directives for appointment and promotion procedures is to be welcomed from the point of view of legal certainty. Disputes in which one might have to prove a more or less consistent administrative practice will thus probably be avoided in future. Moreover—and this is more important for arriving at a decision—one will be able to assume that the rules mentioned became applicable as from their coming into force and thus also applied to appointments procedures which, as in the case of the applicant, had already got under way by notice of competition and the handing in of applications. What is decisive in this respect is that one is not dealing here with a true retroactive effect which is of course out of the question where one is dealing with an infringement of acquired rights. After all—and I have already said this—no one is automatically entitled to promotion; at the most one can think in terms of a claim, unimportant for the present purposes to be considered, which is asserted by means of the application. In the case of the applicant there is the added fact that a proposal of appointment in his favour on the part of the Directorate General for Agriculture, which increased his prospects of promotion, was only made in January 1966, that is to say after the promotion rule had been laid down. Thus one can in fact say that the Commission's previous administrative practice has no relevance to the present proceedings and that the solution of the matter depends solely on principles of the new rules concerning appointments. Now if we try to clarify these then in the present case involving a promotion coupled with change of career bracket we immediately come up against the principle enunciated under II, 2, first paragraph, whereby the promotion becomes effective on the first day of the month following upon the month in which the appointing authority made its decision to promote. As we have already seen, the Commission adhered to this. On the basis of the following paragraphs retroactive promotion is furthermore possible ‘where the official already previously performed the duties corresponding to his new post’. It is provided that in such case the promotion can already become effective on the first day of the month next after the month when the official was entrusted with the relevant duties. To come within the exception therefore, two factors are important: the duties corresponding to the new post must already have been performed and the official must have been entrusted with those duties. On the first point we must remember that this is in dispute between the parties, that it is not certain whether the applicant has since February 1964 performed the duties attaching to the post to which he was promoted (as he claims he has). If this were crucial, then proof would probably have to be provided, although it would appear even now that the correctness of the applicant's argument is confirmed by a statement by his director dated 1 December 1965, according to which the plaintiff had been carrying out for two years the duties which were later officially entrusted to him. In fact this question can remain open because in this context also, it is possible to reach a conclusion on the second point and once again following the line of the Commission. As you know it is the Commission's case that what matters is that the official who is to be promoted retroactively should be entrusted by the appointing authority itself with carrying out the duties attaching to the post to which he is promoted; that on the other hand a simple instruction on the part of a superior without formal consent on the part of the appointing authority does not suffice. This seems to me to be the correct view of the matter for only thus is it possible to ensure that the organizational powers which are reserved to the appointing authority, including the exercise of the right to promote, are not prejudiced and in the last resort eroded by individual acts on the part of divisional heads. Since however in the present case there is no doubt that no formal instruction on the part of the appointing authority to carry out the duties of the post which was advertised in March 1965 was addressed to the applicant and since it cannot be assumed that there was an implied instruction—assuming this were permissible—in the absence of appropriate instruction on the part of the applicant's superiors which would have induced the appointing authority to consider its position, we can only find that the applicant is not entitled to retroactive promotion and that the Commission has correctly fixed the date for the coming into effect of the promotion on the basis of the only provision that is applicable to this case. Finally this result cannot be altered by the applicant's remark that in a similar case, decided at an even later date, there had been a retroactive promotion contrary to what is laid down by the decision of the Commission of 26 May 1965. As regards this point we have heard in the course of the oral proceedings that it had not proved possible to ascertain the grounds for this procedure. It probably amounted to an error on the part of the administration. In fact this point can be left open for a single or even several inadmissible breaches of the Commission's rules for the date for coming into force of appointments and promotions can clearly not establish a practice that would confer on others a claim to similar inadmissible treatment. The ground of appeal referring to retroactive promotion must therefore be rejected as unfounded.