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Judgment of the Court (Second Chamber) of 13 July 1961. - Raymond Elz v High Authority of the European Coal and Steel Community. - Joined cases 22 and 23-60. European Court reports French edition Page 00359 Dutch edition Page 00377 German edition Page 00391 Italian edition Page 00347 English special edition Page 00181 Danish special edition Page 00259 Greek special edition Page 00619 Portuguese special edition Page 00619

Summary Parties Subject of the case Grounds Decision on costs Operative part

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PROCEDURE - ACTION BY AN OFFICIAL FOR FAILURE TO ACT - PREVIOUS FORMAL NOTICE TO THE ADMINISTRATION - FORM

A REQUEST BY AN OFFICIAL TO THE ADMINISTRATION NOT CONTAINING ANY FORMAL REQUEST OR INDICATING AN INTENTION TO PURSUE THE MATTER AND WHICH DOES NOT SHOW SUFFICIENTLY CLEARLY THAT IT CONSTITUTES THE BEGINNING OF THE PERIOD FOR LODGING AN APPLICATION, CANNOT BE REGARDED AS NOTICE CAPABLE OF CONSTITUTING THE PRELIMINARY PROCEDURAL FORMALITY IN AN ACTION FOR FAILURE TO ACT .

IN JOINED CASES 22 AND 23/60

RAYMOND ELZ, AN OFFICIAL OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, RESIDING AT 169, RUE DE SOLEUVRE, DIFFERDANGE, GRAND DUCHY OF LUXEMBOURG, ASSISTED BY PIERRE CHAREYRE, ADVOCATE AT THE CONSEIL D'ETAT AND THE FRENCH COUR DE CASSATION, WITH AN ADDRESS FOR SERVICE AT THE CHAMBERS OF GEORGES MARGUE, ADVOCATE OF LUXEMBOURG, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISOR, RAYMOND BAEYENS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS SEAT, 2 PLACE DE METZ, LUXEMBOURG DEFENDANT,

APPLICATION

( A ) FOR THE ANNULMENT OF AN IMPLIED DECISION OF REFUSAL BY THE HIGH AUTHORITY IN RESPECT OF A LETTER FROM THE APPLICANT CONCERNING HIS POSITION IN THE SERVICE;

( B ) FOR AN ORDER THAT THE HIGH AUTHORITY PAY THE APPLICANT A DIFFERENTIAL ALLOWANCE BY VIRTUE OF A TEMPORARY POSTING;

P . 187

I - THE APPLICATION FOR ANNULMENT IN CASE 22/60

ADMISSIBILITY

THE APPLICATION SEEKS THE ANNULMENT OF AN IMPLIED DECISION BY WHICH THE HIGH AUTHORITY, IT IS CLAIMED, VIOLATED THE RULES OF LAW STEMMING FROM THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COAL AND STEEL COMMUNITY AND REFUSED TO UPHOLD CERTAIN CLAIMS MADE BY THE APPLICANT .

IT IS THEREFORE APPROPRIATE TO CONSIDER, FIRST, WHETHER THE CONDITIONS FOR AN ACTION FOR FAILURE TO ACT ARE FULFILLED IN THIS INSTANCE .

IN THIS RESPECT THE DEFENDANT RAISES A PRELIMINARY OBJECTION OF INADMISSIBILITY ON THE GROUND THAT IT HAS NOT BEEN SERVED FORMAL NOTICE TO TAKE THE DECISIONS THE ABSENCE OF WHICH IS CRITICIZED BY THE APPLICANT AND THAT, THEREFORE, THERE IS NO QUESTION OF A FAILURE TO ACT .

BY LETTER DATED 9 AUGUST 1960 ADDRESSED TO THE DIRECTOR-GENERAL FOR ADMINISTRATION AND FINANCE OF THE HIGH AUTHORITY THE APPLICANT SUBMITTED CERTAIN COMPLAINTS TO THE DEFENDANT CONCERNING HIS POSITION IN THE SERVICE .

P . 188

THIS LETTER IN FACT CONSTITUTES AN APPEAL THROUGH OFFICIAL CHANNELS IN WHICH THE APPLICANT ASKS THE DEFENDANT TO REVIEW HIS POSITION .

MOREOVER, THE APPLICANT HIMSELF DESCRIBED IT AS SUCH IN HIS REPLY .

ALTHOUGH IT IS FOR THE COURT TO CLASSIFY LEGAL MEASURES ACCORDING TO THEIR NATURE RATHER THAN ACCORDING TO THEIR FORM AND ALTHOUGH, IN THE STAGE OF AN ACTION FOR FAILURE TO ACT, THERE IS NO NEED TO SHOW EXCESSIVE SEVERITY TOWARDS AN OFFICIAL AS REGARDS COMPLIANCE WITH THE NECESSARY FORMALITIES, THE FACT REMAINS THAT THE LETTER OF 9 AUGUST 1960 DOES NOT CONTAIN ANY FORMAL REQUEST OR INDICATE AN INTENTION TO PURSUE THE MATTER AND IT DOES NOT SHOW SUFFICIENTLY CLEARLY THAT IT CONSTITUTES THE BEGINNING OF THE PERIOD FOR LODGING AN APPLICATION .

IT CANNOT THEREFORE BE REGARDED AS FORMAL NOTICE INTENDED TO ENCOURAGE THE DEFENDANT TO TAKE A PRELIMINARY EXPRESS OR IMPLIED DECISION WHICH MAY BE CHALLENGED IN PROCEEDINGS BEFORE THE COURT .

IF, BY THIS LETTER, THE APPLICANT HAD INTENDED TO CLOSE THE ADMINISTRATIVE STAGE OF AN ACTION FOR FAILURE TO ACT HE WOULD NOT HAVE FAILED TO TELL THE DEFENDANT SO CLEARLY, AS HE HAD DONE IN HIS EARLIER APPLICATION ( CASE 34/59 ) IN A LETTER DATED 5 MAY 1959 .

EVEN IF THE FAILURE OF THE HIGH AUTHORITY TO REPLY TO THIS LETTER IN GOOD TIME IS SCARCELY IN ACCORDANCE WITH THE DILIGENCE REQUIRED OF A CONSCIENTIOUS ADMINISTRATION IT CANNOT BE REGARDED AS AN IMPLIED DECISION OF REFUSAL WHICH IS CAPABLE OF FORMING THE SUBJECT - MATTER OF AN ACTION FOR FAILURE TO ACT .

THE APPLICATION FOR ANNULMENT IN CASE 22/60 IS THEREFORE INADMISSIBLE .

II - THE APPLICATION FOR COMPENSATION IN CASE 23/60

A - ADMISSIBILITY

THE APPLICATION SEEKS AN ORDER THAT THE HIGH AUTHORITY PAY TO THE APPLICANT THE DIFFERENTIAL ALLOWANCE CORRESPONDING TO THE DIFFERENCE BETWEEN GRADE 7 AND GRADE 9 FOR THE WHOLE PERIOD DURING WHICH HE PERFORMED AS A TEMPORARY POSTING THE DUTIES OF PRINCIPAL ADMINISTRATIVE ASSISTANT TO THE HEAD OF THE GENERAL ACCOUNTS DEPARTMENT OF THE DIRECTORATE-GENERAL FOR ADMINISTRATION AND FINANCE . IT IS FIRST NECESSARY TO CONSIDER WHETHER THIS APPLICATION HAS NOT BEEN BROUGHT IN SPITE OF THE FORCE OF RES JUDICATA OF CASE 34/59, WHICH CONCERNED THE SAME PARTIES AND WAS SETTLED BY THE JUDGMENT OF THE COURT ( SECOND CHAMBER ) OF 4 APRIL 1960 .

P . 189

IT APPEARS FROM READING THE CONCLUSIONS OF THE APPLICANT THAT THE SUBJECT-MATTER OF THE APPLICATION IN CASE 34/59 IS ESSENTIALLY DIFFERENT FROM THAT OF CASE 23/60 . THE APPLICATION IN CASE 34/59 WAS FOR THE REGRADING OF THE APPLICANT WHILE THE APPLICATION IN CASE 23/60 IS FOR THE PAYMENT OF A DIFFERENTIAL ALLOWANCE BY WAY OF REMUNERATION FOR A TEMPORARY POSTING .

THE FORCE OF RES JUDICATA IS THEREFORE NO BAR TO THE ADMISSIBILITY OF THIS APPLICATION .

THE APPLICANT'S INTEREST IN BRINGING PROCEEDINGS IS MATERIAL AND MAY BE ASSESSED IN MONETARY TERMS .

THAT INTEREST OF THE APPLICANT IN BRINGING PROCEEDINGS MUST THEREFORE BE ACKNOWLEDGED .

THE APPLICATION FOR COMPENSATION IN CASE 23/60 IS THEREFORE ADMISSIBLE .

B - SUBSTANCE

THE APPLICANT MAINTAINS THAT HE IS ENTITLED TO THE PAYMENT OF A DIFFERENTIAL ALLOWANCE UNDER ARTICLE 26 OF THE STAFF REGULATIONS OF THE EUROPEAN COAL AND STEEL COMMUNITY ON THE GROUND THAT SINCE 2 DECEMBER 1957 HE HAS PERFORMED AD INTERIM THE DUTIES INVOLVED IN THE POST OF PRINCIPAL ADMINISTRATIVE ASSISTANT IN THE ACCOUNTS DEPARTMENT .

THE DUTIES OF PRINCIPAL ADMINISTRATIVE ASSISTANT ARE DESCRIBED AS FOLLOWS IN THE STAFF NOTICE OF 15 JUNE 1960 :

'ASSISTING THE HEAD OF THE GENERAL ACCOUNTS DEPARTMENT IN THE PERFORMANCE OF ALL THE WORK OF THE DEPARTMENT . IN PARTICULAR, HE WILL BE RESPONSIBLE FOR :

ENSURING THE COORDINATION OF THE WORK OF ACCOUNTING AND VERIFYING THAT IT IS CARRIED OUT PROPERLY AND WITHIN THE REQUIRED TIME - LIMITS;

CHECKING THAT EXPENDITURE HAS BEEN CHARGED TO THE CORRECT ACCOUNTS AND ITEMS OF THE BUDGET;

ANALYSING AND PREPARING WRITTEN JUSTIFICATION OF ACCOUNT BALANCES .'

A MEMORANDUM DATED 15 SEPTEMBER 1958 FROM THE DIRECTOR OF THE DIRECTORATE FOR BUDGET AND INTERNAL CONTROL OF THE HIGH AUTHORITY, WHICH APPEARS IN THE APPLICANT'S PERSONAL FILE, SHOWS HIS DUTIES TO BE AS FOLLOWS :

'LEDGER POSTING AND CHECKING THAT ITEMS OF EXPENDITURE SHOWN IN STATEMENTS PROVIDED EACH MONTH BY THE SEVEN OFFICES AT PRESENT ESTABLISHED OUTSIDE LUXEMBOURG ARE POSTED TO THE CORRECT ACCOUNTS;

P . 190

CHECKING THE POSTING OF ITEMS OF EXPENDITURE BY THE OTHER OFFICIALS OF THE BRANCH ( WORK SHARED WITH THE HEAD OF THE ACCOUNTS DEPARTMENT );

EXPLANATION OF ACCOUNT BALANCES, IN PARTICULAR, OF CURRENT ACCOUNTS;

PREPARATION OF STATISTICS AND SUMMARY TABLES;

FINALLY, ASSISTANCE IN DRAWING UP THE BALANCE SHEET AND IN PREPARING THE NECESSARY EXPLANATORY DOCUMENTS .'

EVEN IF THEY COULD POSSIBLY HAVE JUSTIFIED REGRADING, A QUESTION WHICH THE COURT IS NOT REQUIRED TO SETTLE WITHIN THE CONTEXT OF THIS APPLICATION, THE DUTIES OF THE APPLICANT SO DEFINED DO NOT CORRESPOND TO THOSE OF A PRINCIPAL ADMINISTRATIVE ASSISTANT .

IN PARTICULAR, IT DOES NOT APPEAR THAT THE APPLICANT WAS RESPONSIBLE FOR ASSISTING THE HEAD OF DEPARTMENT IN THE PERFORMANCE OF ALL THE TASKS OF THE DEPARTMENT .

THERE IS ALSO NO EVIDENCE THAT HE WAS RESPONSIBLE FOR ENSURING THE PROPER COORDINATION OF ALL THE WORK OF ACCOUNTING AND OF VERIFYING THAT IT WAS CARRIED OUT PROPERLY AND WITHIN THE REQUIRED TIME-LIMIT .

THE APPLICANT HAS NOT SHOWN SUFFICIENTLY IN LAW OR OFFERED TO BRING EVIDENCE THAT HE IN FACT PERFORMED THE DUTIES OF PRINCIPAL ADMINISTRATIVE ASSISTANT .

IN THESE CIRCUMSTANCES HE CANNOT CLAIM THAT HE HAD OCCUPIED THE POST IN QUESTION AS A TEMPORARY POSTING .

THE APPLICATION IS THEREFORE UNFOUNDED .

THE APPLICANT HAS BEEN UNSUCCESSFUL IN HIS TWO APPLICATIONS .

HE MUST THEREFORE BE ORDERED TO PAY THE COSTS .

UNDER THE TERMS OF ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT, THE HIGH AUTHORITY SHALL BEAR THE COSTS WHICH IT HAS INCURRED .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATIONS 22/60 AND 23/60;

2 . ORDERS THE APPLICANT TO PAY THE COSTS; THE COSTS INCURRED BY THE DEFENDANT SHALL BE BORNE BY THAT INSTITUTION .