CELEX: 61968CC0030
Language: en
Date: 1970-04-22 00:00:00
Title: Opinion of Mr Advocate General Roemer delivered on 22 April 1970. # Max Lacroix v Commission of the European Communities. # Case 30-68.

OPINION OF MR ADVOCATE-GENERAL ROEMER
      DELIVERED ON 22 APRIL 1970 (
            1
         )
      
         Mr President
      
      
         Members of the Court,
      In the case with which we are dealing today, the application of the special measures in Chapter 2 of Regulation No 259/68 of the Council is under discussion again, that is, the application of the provisions which were to enable the single Commission to reduce the number of its posts and rationalize its departments after the merger of the executives. It is necessary to know the following of the facts of the case :
      The applicant who brought these proceedings entered the sevice of the Commission of the European Atomic Energy Community on 6 October 1960. At that time his salary was equal to a classification in Grade A 3 of the salary table in the Staff Regulations. He was later established in this grade as Head of Division. As regards his employment in the service, I need only mention for the moment that from April 1964 to June 1968 he was ‘Inspector of Administration and Finance’ in the Directorate General for Personnel and Administration. On the occasion of the restructuring of the administration of the single Commission, the applicant was informed in Spring 1968 that it might be necessary to propose assigning him to a post ‘corresponding to the career bracket immediately below that applicable to his grade’, in acordance with Article 8 of Regulation No 259/68. As the applicant did not object to this request, the Commission took a decision on 21 May 1968 to assign him to the post of Principal Administrator, Grade A 4, with the title of Adviser in the Directorate of Administration as from 4 June 1968. The applicant learned of this in a letter from the President of the Commission of 22 May 1968 which he received on 27 May 1968. At first he was placed under a Head of Division, but later, that is on 1 August 1968, he was informed by the Directorate General for Personnel and Administration that he had to work directly for the Director of Administration.
      The applicant very soon attempted to alter this unsatisfactory situation. He tried to do so in particular by applying for a large number of posts in Grades A 3 and A 2 which were notified vacant from March 1968 onwards. If I am correct, he applied for two posts in Grade A 2 and sixteen in Grade A 3. The last application was made in September 1969. However the applicant met with no success. In addition, he sent a note on 22 July 1968 to the President of the Joint Committee entrusted with the task of examining the assignment of posts in the context of the restructuring of the Commission's administration. He referred to his applications and the need to assign him to a post corresponding to his grade. However the applicant was told in a reply of 13 August 1968 that the Joint Committee was not responsible for officials in Grades A 1, A 2 and A 3. After this he sent an express complaint to the President of the Commission on 14 August 1968, in which he referred chiefly to the vacancy notices issued since March 1968 and to the applications which he had made. Moreover he urged that he be assigned as quickly as possible to a post corresponding at least to his grade. He only received a reply to this in a letter of 6 November 1968 from the President of the Commission, that is, after the expiry of the two months' period under Article 90 of the Staff Regulations of Officials.
      As the applicant had not improved his position by this method, (the President's letter was really only a confirmation of earlier decisions taken by the Commission with which he was not in agreement), he lodged an application to the Court on 12 December 1968. The applicant asks the Court to deal with the following requests:
      
               1.
            
            
               For the annulment of the decision of 21 May 1968 in so far as it did not assign the applicant to a post corresponding to his grade;
            
         
               2.
            
            
               For a declaration that the applicant should no longer be deprived of a post in his grade and an order that all measures be taken to assign him to a similar post or a declaration that the applicant has been denied a post in his grade without reasonable cause, — this is the form the request took in the reply — and for the matter to be referred back to the Commission in order that it may comply with the judgment of the Court;
            
         
               3.
            
            
               For the annulment of all decisions to appoint or assign officials which affect the applicant adversely;
            
         
               4.
            
            
               For an order for damages against the Commission, the amount of damages to be assessed by the Court according to the facts. Let us see what we should make of these requests.
            
         Legal consideration
      I — Questions of admissibility
      As the Commission has taken the attitude first and foremost that all the applicant's conclusions must be dismissed as inadmissible and as it devoted a great deal of space to its explanation in its arguments, these objections must be tackled first.
      1 — Requests for annulment
      With regard to the requests for the annulment of certain of its decisions, the Commission first raises objections as to the observance of the period for lodging an application and secondly as to the scope of the matter at issue.
      
               (a)
            
            
               Let us first deal with the observance of the period for lodging an application. It is evident that this case raises problems in this respect since the legality of decisions which were taken in March 1968 is at issue although the application was not received until 12 December 1968. However, in order to understand the problem correctly some important principles of case-law must first be recalled to mind. According to these principles it is, as you know, unnecessary to lodge an application immediately against a decision which affects one adversely. On the contrary it is sufficient and even thought desirable to try to settle the complaint through official channels first, that is, within the period for lodging an application. If the complaint is unsuccessful, an application can still be made to the Court and it is sufficient for the application to be lodged before the expiry of the period laid down in Article 91 of the Staff Regulations, which starts to run when the complaint through official channels is submitted. The most recent cases establish clearly that in the latter case the annulment of the administrative decision which was originally taken can be directly requested — the Commission's representative seems to have overlooked this — (that is, not merely the annulment of the decision of rejection which is deemed to have been taken by implication after two months). In this connexion I would refer you to Case 27/68 ([1969] E.C.R 262).
               On the basis of these principles it must be maintained firmly in this case that it is not only possible to request the annulment of measures which were adopted not more than three months before the application was lodged or with which the applicant was acquainted not more than three months before lodging the application. As the applicant submitted a complaint through official channels and as a decision did not follow within two months and as the application was lodged before the expiry of a further two months, all the administrative decisions already mentioned in the complaint through official channels can be taken into consideration, again on condition that they were taken not more than three months before the complaint through administrative channels was submitted or on condition that the applicant had been aware that they had been taken not more than three months before the complaint through official channels was submitted. The result of a simple calculation of the date when the complaint through official channels was lodged is that the application could encompass all the decisions to appoint or assign officials which were taken or of which the applicant was informed after 14 May 1968. Therefore the right to contest the decisions concerned with filling the posts in Grade A 2 is lost, since they were made in March or the beginning of April 1968 and published in April 1968, and the applicant himself seems to be of the same view. On the other hand there are no problems of admissibility with regard to all the decisions whereby posts in Grade A 3 were filled, at least as regards the observance of the applicable period for lodging an application, because they were only taken from 21 May 1968 onwards. In the same way, there is no problem with regard to the admissibility of the decision of 21 May 1968 onwards. In the same way, there is no problem with regard to the admissibility of the decision of 21 May 1968 whereby the applicant was assigned to a post in a lower grade.
            
         
               (b)
            
            
               Having just dealt with the applicant's complaint through official channels which was submitted on 14 August 1968 its content must now be examined more closely. This is necessary because a complaint through official channels can only keep open the period for lodging an application if it and the application which is lodged afterwards both have the same matter at issue. The Commission has also raised doubts in this respect. It feels that with regard to the decision of 21 May 1968 which assigned the applicant to a specific post, the complaint through official channels only seeks amendment ex nunc. It claims that this follows from the use of the word ‘réforme’ (vary). Thus the power to request the annulment of this decision in the application, that is, its revocation ex tunc, is excluded. If one looks closely at the content of the complaint through official channels as a whole it appears however that the conclusion drawn by the Commission cannot be upheld. In fact it seems inadmissible to characterize the contents and purpose of the complaint from the interpretation of the term ‘réformer’ (to vary) which has, besides, several meanings. In my opinipn it is also important that the applicant refers in the fifth paragraph of his complaint to the vacancy notices published in March 1968 and to his applications for the posts which were notified vacant. In so doing he claims that it was possible to assign him to a post in his grade, that is, doubts are cast on the legality of the decision of 21 May 1968. The question raised by the applicant whether the decision of 21 May 1968 was necessary and whether all possibilities of assigning him to a post corresponding to his grade had been exhausted must be understood in the same sense. As far as I am concerned, the result of this is in fact that the applicant at that time already deemed the decision of 21 May 1968 to be illegal and that his intention therefore was not only to obtain its amendment later on but to obtain retroactive annulment of it. Thus it follows that the subject-matter of the complaint through official channels was not only the annulment of the decisions whereby the Commission filled the posts in Grade A 3 but also the annulment of the decision to assign the applicant to a post in a lower grade. Consequently the Commission's objections as to the identity of the subject-matter of the application are unfounded.
            
         
               (c)
            
            
               The applicant requests the annulment of all decisions taken since 21 May 1968 to fill posts in Grade A 3, but the Commission claims that the application which has been lodged is inadmissible because Article 38 (1) of the Rules of Procedure, which requires a precise definition of the subject-matter of the dispute, has been disregarded. It maintains moreover that the applicant does not have sufficient interest to claim such extensive legal protection. It states that on no account does the applicant have an interest in the annulment of all decisions of the Commission relating to posts in Grade A 3, since if the decision of 21 May 1968 concerning the applicant were annulled the annulment would enable the judgment to be complied with appropriately even without the annulment of the remaining decisions which have been mentioned. Apart from this it is possible at the most to acknowledge that the applicant has an interest to claim legal protection as regards decisions to fill posts for which he himself applied.
               
               I must say immediately that I cannot completely share the Commission's view in this case either. This applies above all to its reference to the requirements of Article 38 (1) of our Rules of Procedure. On this point, as regards the definition of the decisions which the applicant is contesting, I feel that by describing their content and giving the dates on which they were taken he has done all that is necessary. It is impossible to ask more of an official who was not notified of the measures concerned. Likewise I believe that the applicant did have an interest in the annulment of decisions whereby other officials in Grade A 3 were assigned to posts in their grade or whereby officials in Grade A 4 were promoted to posts in Grade A 3. This interest exists because the illegality of the decision whereby the applicant was assigned to a post in Grade 4 is substantiated, inter alia, in the form of the illegality of those other decisions to appoint officials. (As you know, the applicant claims that he was wrongly passed over when posts in Grade A 3 which existed or became vacant after 21 May 1968 were assigned). However the applicant's interest must also be acknowledged because the annulment of those decisions to appoint officials increases his chances of obtaining a suitable post in Grade A 3 more than would be the case if only the decision whereby he was assigned to his present post were annulled. This is still true although the Commission is under a duty to comply with the judgment of the Court properly as soon as the last-mentioned decision has been annulled.
               However the objections of the Commission with which I now have to deal are not entirely unfounded. It claims, correctly, in my opinion, that it is impossible for the applicant to have the same interest in the simultaneous annulment of all the decisions whereby posts in Grade A 3 were filled from 21 May 1968. Even the applicant would not go so far as to claim that he should have been taken into consideration when all the posts in Grade A 3 in very different spheres of activity were filled and that, because this did not happen, all the decisions concerned must be deemed illegal. Therefore he was under a duty to specify those decisions to appoint officials in connexion with which he should have been considered. After the Commission's detailed list of posts was published in March 1968 and the vacancy notices and decisions to appoint officials were later published he was perfectly able to do this. The applicant is certainly unable to justify his failure to give precise details by referring to the quite different situation which exists when a competition of ‘tableau d'avancement’ (promotion list) is contested. Therefore such negligence must be imputed to the applicant and consequences must be drawn from this with regard to the admissibility of the application. I am convinced that these consequences are that the application for the annulment of all decisions to fill posts in Grade A 3 must on principle be •dismissed as inadmissible. Only one qualification seems to be justifiable: it can be acknowledged that the applicant had an interest in contesting decisions to appoint officials which refer to posts for which he himself expressly applied. In this respect there are sixteen cases in all if those applications are included in the investigation which were made after the proceedings before the Court had been commenced. Therefore to that extent I consider that the application for annulment is admissible, contrary to the opinion of the Commission. It is however evident that the considerations which have been mentioned lead to a considerable reduction in the purpose of the application. This must be added to the conclusions to which I have already come on the basis of the investigation as to whether the period for lodging an application was observed.
            
         2 — Applicant's request for a declaration
      The Commission has moreover raised objections as to the admissibility af the requests set out in the application for an order that the applicant be assigned to a post in his grade. Its main objection is that the Court of Justice must be prevented from giving the Commission orders of this kind. I have already repeatedly emphasized that this objection is incorrect in the categorical form in which the Commission expresses it. In company with the applicant, I would refer to the findings in Cases 18/63 ([1964] E.C.R. 163 et seq.) and 70/63 ([1964] E.C.R. 861 et seq.). However, it is not necessary to go into the problem more deeply because the criticized request was considerably narrowed in the reply. Basically the Court is now asked only to declare that the applicant was wrongly deprived of a post in his grade. In this respect the applicant has expressly left it to the discretion of the Court to decide whether this declaration should appear only in the grounds of judgment or also in the operative part of the judgment. Thus we are confronted only with an argument which is intended to substantiate the request for annulment and in respect of which there are no objections as to admissibility. Furthermore, as regards the need mentioned in the reply to refer the case back to the Commission for compliance with the judgment, this is merely the legal consequence of a possible judgment granting annulment and it does not seem objectionable to raise this point either.
      Thus the second request in the application as amended certainly does not give rise to objections as regards admissibility.
      3 — Claim for damages
      
      Finally, the Commission also claims that the applicant's claim for damages is inadmissible by referring once more to Article 38 (1) of the Rules of Procedure, that is, by arguing that the applicant has not specified the extent to which he has suffered damage and how he deduces that the Commission is accordingly liable.
      It must be acknowledged that the Commission's criticism on this point does not appear to be entirely unfounded, as the application does not contain any particular statements concerning the claim for damages which is formulated last of all. I would certainly hesitate to say however that Article 38 (1) of the Rules of Procedure has been completely disregarded. For all that, the arguments from which the applicant claims to derive his claim can be seen from the recital of the facts, the statement of the circumstances in which the contested decisions are said to have been taken and the nature of the complaints which have been made generally against the Commission. Although it must thus be acknowledged that the grounds upon which the applicant's claim is founded in this case depart greatly from the norm, I do not suggest that the application for damages be dismissed without going into the problem more deeply.
      4 — Summary
      The relatively detailed preliminary investigation as to the admissibility of the application leads me to find that the only serious objections are to the requests for annulment. In fact they must be deemed inadmissible since they are requests for the annulment of decisions to fill posts in Grade A 2 which were made in March 1968 and published in April 1968 at the latest. Moreover, they are inadmissible since they request the annulment of decisions to fill posts in Grade A 3 in which the applicant did not display special interest by making an express application for them. Having made this important qualification we can now proceed to examine the substance of the case.
      II — Substance of the case
      1 — Requests for annulment
      
      
               (a)
            
            
               As regards the substance of the case, we are first concerned with the decision whereby the applicant was assigned to a post in a lower grade on 21 May 1968.
               
                        (aa)
                     
                     
                        The applicant chiefly contests its legality by claiming that there was no objective need to refuse him a post in Grade A 3. In this connexion he refers to the fact that at the time the decision was made and at the time the existing posts in Grade A 3 were filled there was no shortage of these posts in relation to the number of officials in Grade A 3 who had to be considered for them.
                        In fact this seems to be correct, even though it is not certain whether posts in Grade A 2 were filled by promotion in Spring 1968 and posts in Grade A 3 were thus made vacant, as the applicant maintains. Nevertheless, there is no doubt that thirty-seven officials in Grade A 3 terminated their service of their own accord and five officials in Grade A 3 had their service terminated under Article 4 of Regulation No 259/68, which, worked but purely arithmetically, makes a surplus of vacant posts even after a reduction of the number of posts in Grade A 3 as compared with the number employed in 1967. It also appears to be the fact that at that time a considerable number of posts in Grade A 3 were notified vacant and filled by promotion. However the facts which have been set forth are in the end of no value to the applicant in support of his argument. The determining factor is how the Commission distributed the available posts among the various spheres of activity using its discretionary powers of reorganization. Accordingly, it seems possible that there were insufficient posts in Grade A 3 in spheres of activity for which only the applicant came into consideration and that, on the contrary, it was out of the question to assign the applicant to the posts which: were vacant, because of their special requirements. Since, however, no criticism was made of the Commission's distribution of the posts in Grade A 3 among the various spheres of activity it is in fact impossible for the applicant to substantiate his request by using arguments based on the total number of posts which are vacant or filled.
                     
                  
                        (bb)
                     
                     
                        Secondly, the applicant objects that the remaining posts in Grade A 3 were assigned without the vacancy notices having previously been issued. He claims that this was an infringement of a fundamental provision of the Staff Regulations, that is, of Article 4.
                        If what I have said regarding the admissibility of the application is accepted, there is really no need to deal with this complaint as it refers chiefly to decisions which the applicant cannot contest as a whole, that is, without showing a specific interest in each one individually. However the objections which have been mentioned can be touched upon lightly on the grounds that if the vacancies had been notified properly the applicant would have been able to show his interest in particular posts more effectively and so finally to prevent a decision being issued which assigned him to a post in a lower grade. Let us therefore see what the real substance of the applicant's complaint really is.
                        I shall anticipate the result of my investigation and say that it seems to me that the Commission's view of the interpretation of Article 4 of the Staff Regulations must also be followed. According to this provision, vacancies need only be notified when posts are to be filled in the normal way, that is, if a single post becomes vacant for some reason, (for example, because its holder is promoted) or if a new post is created. On the contrary, the Commission was dealing with quite different circumstances when it had to restructure and rationalize its departments in Spring 1968. During this difficult period the existing detailed list of posts had to be replaced by a new one. Thus all the posts were at its disposal and all officials were likewise candidates for new posts. In this situation it was not only entirely impracticable to publish a general vacancy notice with exact details of the requirements of every single post; it must also be accepted that it would hardly have increased the equality of opportunity of the officials concerned when the new posts were assigned. In fact it must be considered that the applicant cannot find support for his request for annulment by referring to Article 4 of the Staff Regulations.
                     
                  
                        (cc)
                     
                     
                        A third argument to be examined in this case says that the assignment of posts and the failure to take the applicant into consideration was substantially influenced by the efforts to achieve ‘geographical balance’. According to this argument, this is an infringement of the provisions of the Staff Regulations of Officials, or more precisely, of the principles of Articles 5, 7 and 27 as defined in decided cases. In fact the Court of Justice recently stressed in Case 17/68 ([1969] E.C.R. 61) that the Commission was bound by the principle if need be ‘in those cases where the qualifications of the various candidates are substantially the same, … [to make] nationality the overriding criterion’ even when fulfilling the order to rationalize its departments. Therefore if the Commission did otherwise when filling the posts in Grade A 3, that is, placed greater stress on nationality, it would in fact have to be sanctioned by the annulment of the decision of 21 May 1968 concerning the applicant. However I can see no evidence, not even a shred of it, that the applicant's assertions are correct. The findings of fact in Case 17/68 to which the applicant refers amongst others only applied to geographical balance as regards posts of Director, and are therefore not generally valid. Oral statements to this effect which the applicant claims were made to him are not sufficient grounds because we have not been given details of them, and besides, they are not supported by documents. Moreover, the Commission was able to point out in answer to the applicant's criticism that it had not accepted applications for voluntary retirement only from French officials in Grade A 3, from which it can certainly be concluded that it did not intend to reduce the number of officials of that nationality. Therefore I am of the opinion that the applicant's third complaint which I have just examined does not lend weight to the request for annulment. At the same time it is also quite certain that the decision of 21 May 1968 concerning the assignment of the applicant to a specific post cannot be annulled because there are no valid arguments to justify it.
                     
                  
         
               (b)
            
            
               In the context of the requests for annulment, the legality of decisions which were later taken to fill posts in Grade A 3 which had been notified vacant must be investigated. In this respect we can certainly restrict ourselves to decisions to fill posts for which the applicant expressly applied, if my observations on admissibility are accepted. As you know there are sixteen cases in all which span the period from 24 June 1968 to 10 September 1969 (those are the dates of the applications made by the applicant). Now that the Commission has submitted the texts of the vacancy notices and the minutes of the meetings of the Commission at which decisions were made to fill posts in response to the question I asked during the oral procedure, which corresponded to an express request by the applicant, it appears to be possible to give an opinion which contains more than general observations. As you know the following posts were vacant: the post of the Head of the Trade Exemptions and Trade Promotion Division and Head of the Development Studies Division in the Directorate General Development Aid; the posts of the heads of three Divisions, that is, of the Medium-term Quantitative Analysis and Forecasts by Country Division, the Community Projections, General Assessment and Methods Division and the Budgetary Policy and Programming of Public Finance Division in the Directorate General for Economic and Financial Affairs; the post of Head of the Organization Division in the Directorate General for Personnel and Administration; the posts of Head of the Studies Structure and Development of the Trade Balance, Objectives of Commercial Policy, Promotion of Exports and Credit Insurance Division and Head of the Specific Questions relating to Imports and Exports, Safety Clauses — Far East Division in the Directorate General for External Trade; the post of Head of the European Law relating to Companies and Firms and Groups of Companies and Firms, Amalgamation and Conversion of Companies and Firms Division in the Directorate-General for te Internal Market; the post of Head of the Analysis and Documentation Division in the Directorate General for Regional Policy; the post of Head of the Supply Division in the Directorate General for Energy; the post of Adviser to the Director General and the post of Head of the Measures for the General Promotion of Research and Innovation Division in the Directorate General for General Research and Technology; the post of Adviser to the Director General in the Directorate General for Industrial Affairs; the post of Adviser to the Director General in the Directorate General External Relations and the post of Secretary to the Monetary Committee in the Directorate General for Economic and Financial Affairs. As we have seen, most of these posts were filled by promotion. In investigating these cases, it is of course not our task to replace the examination of suitability undertaken by the Commission, as I have already emphasized with regard to the similar problems in Case 12/69. However, we can obtain some impression of the way in which decisions were reached, first on the basis of the particular requirements for filling the posts which were notified vacant and secondly on the basis of the facts with which we are acquainted as to the applicant's education, qualifications and professional experience. In so doing, we quickly realize that it is impossible in most cases which have been quoted to come to a conclusion in favour of the applicant simply because the particulars he furnished (for example, on page 34 of his reply and in his observations of 18 March 1970) are insufficient. These posts are extraordinarily diverse and extremely specialized and are drawn from every conceivable sphere of activity. The only post mentioned to which this possibly does not apply is that in the Directorate General for Personnel and Administration. In Vacancy Notice COM/52 the nature of the duties is described as follows: ‘Managing an administrative unit responsible for examining plans for the structure and organization of all the Commission's Departments including requests for staff and equipment; ensuring the rational employment of staff; advising the departments on all questions concerning the organization, rationalization and mechanization of work’. According to the same vacancy notice, the requirements for the post are as follows: ‘University education supported by diploma or equivalent professional experience; thorough knowledge of the administration, organization and structure of the Commission's departments’. Now, considering that the applicant held a high-ranking post in the Directorate General for Personnel and Administration of the Euratom Commission for many years and that his last periodic report speaks of an excellent training in administration, this strongly suggests, that he is particularly suited to the post I have just mentioned. The judgment in Case 12/69 to which reference has already been made gives valuable guidance in answering the further question what conclusions should be drawn from this. According to this judgment in the view of the ‘quite exceptional and temporary’ nature of such a relegation in step, ‘it is necessary to provide the officials concerned with strict guarantees regarding their priority rights’. To quote from the judgment, ‘the implementation of such guarantees requires inter alia that the suitability of the candidates having priority be considered independently of any reference to the possible merits of those who have no such right’. Obviously this principle was not however observed in this case any more than it was in Case 12/69. In fact, it emerges from the minutes of the meeting of the Commission on 15, 16 and 17 July 1968 that all applications, even those of candidates for promotion, were distributed to members of the Commission. The minutes read further: ‘Mr Levi Sandri gave a detailed account of the candidates’ qualifications having regard to the nature of the post. He told the Commission the general particulars of the examination which he had carried out as to their merits. He also informed it of the opinion he had obtained from the Director General for Personnel and Administration'. Moreover, it continues: ‘The Commission noted that each of its members had the periodic reports concerning the candidates and had examined these periodic reports’. This justifies thesame finding in this case as that in Case 12/69. As you know, the Court stated on that occasion that ‘this method of procedure, which leads to comparisons between categories of servants who, in this instance, could not compete with each other, does not fully guarantee to the officials who had voluntarily accepted transfer under Article 8 (1) the full benefit of the priority right conferred on them by Article 8’. For this reason alone, therefore, the Commission's decision which was taken after its deliberations on 15, 16 and 17 July 1968 whereby an A 3 post in the Directorate General for Personnel and Administration was filled by promotion must be deemed invalid and annulled. Moreover reference must be made to the requirement, also emphasized in the judgment in Case 12/69, that a consideration of the abilities of officials having priority must be based on concrete factors which are capable of review, if the consideration might result in the officials referred to being excluded in favour of candidates not entitled to priority. The judgment continues : ‘such factors must only concern the qualifications required by the vacancy notice and must appear in the minutes of the Commission’. Obviously this requirement was not complied with in the present case since the Commission's minutes only contained the standard wording: ‘Having considered from an examination of their personal files the university education and professional experience of the candidates and their personalities taken as a whole the Commission came to the conclusion that none of these officials proved to be suitable for appointment to the post mentioned above which is at present vacant’. The Court of Justice did not allow general considerations of this kind in Case 12/69; it cannot seriously be considered that they would be sufficient in this case.
               Therefore at least one decision to fill vacant posts in Grade A 3 out of the many decisions referred to by the applicant which were taken after 21 May 1968 can be annulled because it infringes the priority right conferred by Article 8 of Regulation No 259/68 and the request for annulment can be declared to be well founded in part. Thus the result is that the applicant in fact has the opportunity of being assigned to a suitable post in Grade A 3. However the Court of Justice cannot declare in this case that this must happen.
            
         2 — Claims for damages
      Finally, the last question is whether the applicant also has a claim to the award of damages for material and non-material damage which he maintains he suffered through being employed permanently in a post in Grade A 4. As regards the material damage, I can be relatively biref on this point. According to the rule in Article 8 of Regulation No 259/68 officials who, like the applicant, are employed in a post in a lower grade retain the right to the salary corresponding to their true grade. Therefore, as the applicant receives the salary corresponding to Grade A 3, just as before, although he does not hold a post in Grade A 3, it is really impossible to see in what respect he feels that the has suffered material damage.
      Even the failure to notify the vacant posts in Grade A 2 which the applicant claims prevented him from applying for them cannot justify a claim like this which was, moreover, for only one Belgian franc. This is so because the failure to notify vacant the posts of which the applicant complains was, as I have shown, not illegal.
      As regards the claim for damages for non-material damages the applicant justifies this by referring to the worries he had concerning the decisions which he criticized and by referring to the uncertainty of his present situation and to the loss of prestige which he states were the result of his being employed in a post in Grade A 4. On the last point, the applicant claims in addition that the staff was belatedly informed that he was no longer under a Head of Division who was younger than him but was working directly for the Director of Administration as from 1 August 1968. The Commission rightly points out in answer to this argument that the determining factor is; first and foremost that the applicant's relegation in step cannot be deemed illegal. It states that, moreover, according to the system under Regulation No 259/68 it is an established fact that measures of this kind cannot be regarded as censure or a sign of inefficiency. It claims that there is no question of the legal situation being uncertain since the applicant retained his official status and the salary corresponding to his grade. In fact these references provide very important arguments for rejecting the applicant's claim. Accordingly there remains at most the fact that the applicant was at first under a Head of Division who was younger than him and that staff was not notified immediately of the step taken to correct this decision. Properly understood, this can only be seen as a certain breach of etiquette which could easily creep in during the extensive and detailed operation of restructuring the administration. In my opinion it is not in any case an argument which can justify a claim for the award of damages.
      Therefore the applicant's claims for the award of damages must be dismissed as a whole as unfounded.
      III — Summary
      Finally, I can summarize the result of my investigations as follows :
      The requests for annulment set out in the application are only admissible to the extent that they seek the annulment of the decision of 21 May 1968 regarding the applicant's employment and the annulment of later decisions whereby posts in Grade A 3 were filled for which the applicant applied. As for the rest, the requests for annulment must be dismissed as inadmissible partly because the period for lodging an application was not observed and partly because the applicant has not shown sufficient interest to claim legal protection.
      In my opinion only the request for the annulment of the decision taken in July 1968 regarding the filling of the post of Head of Division in the Directorate General for Personnel and Administration is well founded.
      All the other requests, including the request for the award of damages, must be dismissed as unfounded.
      Since the applicant has in my opinion been partly successful in proving his case this seems to indicate that the Commission should bear half the applicant's costs.
      (
            1
         )	Translated from the German.