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Judgment of the Court of 17 June 1965. - Richard Müller v Councils of the EEC, EAEC and ECSC. - Case 43-64. European Court reports French edition Page 00499 Dutch edition Page 00482 German edition Page 00520 Italian edition Page 00474 English special edition Page 00385 Danish special edition Page 00065 Greek special edition Page 00099 Portuguese special edition Page 00115

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

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1 . OFFICIALS - APPOINTING AUTHORITY ACTING IN THE NAME OF ITS INSTITUTION - MEASURES AFFECTING THE LEGAL POSITION OF OFFICIALS AND OTHER SERVANTS - ATTRIBUTABLE TO THE INSTITUTION

( STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC, ARTICLE 2 )

2 . OFFICIALS - APPEALS BY OFFICIALS - CITATION OF INSTITUTION FROM WHICH THE ACT ADVERSELY AFFECTING THE PERSON CONCERNED ORIGINATES

( STAFF REGULATIONS OF THE EEC AND EAEC, ARTICLE 91 )

3 . EUROPEAN COMMUNITIES - SEPARATE LEGAL PERSONALITY - COUNCILS OF MINISTERS - INSTITUTIONS LEGALLY SEPARATE

4 . PROCEDURE - JUDGMENT GRANTING ANNULMENT - LEGAL EFFECTS - LIMITED TO THE PARTIES AND TO THE PERSONS DIRECTLY CONCERNED BY THE MEASURE ANNULLED - JUDGMENT CONSTITUTING A NEW FACTOR - CONCEPT

1 . CF . PARA . 1, SUMMARY, IN CASE 28/64, ( 1965 ) ECR 237 .

IT FOLLOWS FROM ARTICLE 2 OF THE STAFF REGULATIONS THAT THE APPOINTING AUTHORITY ACTS IN THE NAME OF THE INSTITUTION WHICH DESIGNATED IT, SO THAT ACTS CONCERNING THE LEGAL POSITION OF OFFICIALS AND WHICH MAY ADVERSELY AFFECT THEM MUST BE ATTRIBUTED TO THE INSTITUTION TO WHICH THEY ARE ATTACHED .

*/ 664J0028 /*.

2 . CF . PARA . 2, SUMMARY, IN CASE 28/64, ( 1965 ) ECR 237 .

UNLIKE APPEALS THROUGH OFFICIAL CHANNELS WHICH HAVE NO CONTENTIOUS ELEMENT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS, APPEALS TO THE COURT PROVIDED FOR IN ARTICLE 91 OF THOSE REGULATIONS MUST BE BROUGHT AGAINST THE INSTITUTION FROM WHICH THE ACT HAVING AN ADVERSE EFFECT EMANATED .

*/ 664J0028 /*.

3 . CF . PARA . 3, SUMMARY, IN CASE 28/64, ( 1965 ) ECR 237 .

THE MERE FACT OF THE EXISTENCE OF A SINGLE SECRETARIAT CANNOT ESTABLISH THE LEGAL UNITY OF THE COUNCILS OF MINISTERS OF THE EUROPEAN COMMUNITIES, AS EACH OF THESE COMMUNITIES HAS A SEPARATE LEGAL PERSONALITY AND AS THE TREATIES DID NOT ESTABLISH THE COUNCILS AS A COMMON INSTITUTION .

*/ 664J0028 /*.

4 . APART FROM THE ACTUAL PARTIES IN PROCEEDINGS BEFORE THE COURT, THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE ARE, THE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED . SUCH A JUDGMENT CAN ONLY CONSTITUTE A NEW FACTOR AS REGARDS THOSE PERSONS .

IN CASE 43/64

RICHARD MUELLER, AN OFFICIAL OF THE SECRETARIAT - GENERAL OF THE COUNCILS OF THE EUROPEAN COMMUNITIES, REPRESENTED AND ASSISTED BY MANFRED SCHWALL OF THE KARLSRUHE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY, COUNCIL OF THE EUROPEAN ATOMIC ENERGY COMMUNITY AND THE SPECIAL COUNCIL OF MINISTERS OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY HANS JUERGEN LAMBERS, LEGAL ADVISER AT THE SECRETARIAT-GENERAL OF THE COUNCILS WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES SECRETARIAT-GENERAL OF THE COUNCILS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF JACQUES LECLERC, AN OFFICIAL AT THE SECRETARIAT - GENERAL OF THE COUNCILS, 3 RUE AUGUSTE-LUMIERE,

DEFENDANT,

APPLICATION FOR THE CLASSIFICATION OF THE APPLICANT AT A HIGHER STEP IN GRADE B1,

P.395

ON THE NAMING OF THE DEFENDANTS AS PARTIES

THE APPLICANT HAS DIRECTED HIS APPLICATION AGAINST THE SECRETARY-GENERAL OF THE COUNCILS OF THE EUROPEAN COMMUNITIES, CLAIMING THAT, AS UNDER ARTICLE 90 OF THE STAFF REGULATIONS A COMPLAINT MUST BE SUBMITTED TO THE APPOINTING AUTHORITY, THE APPEALS PROVIDED FOR IN THE FOLLOWING ARTICLE MUST ALSO BE BROUGHT AGAINST THE SAME AUTHORITY, IN THE ABSENCE OF SPECIAL PROVISIONS TO THE CONTRARY .

THE APPLICANT ALLEGES THAT THIS POSITION IS ALL THE MORE JUSTIFIED BECAUSE HE IS AN OFFICIAL OF THE COUNCILS OF THE EEC, THE EAEC AND THE ECSC, WHICH FORM A SINGLE LEGAL AND ADMINISTRATIVE ENTITY, ENDOWED WITH A COMMON SECRETARIAT .

ACCORDING TO THE TERMS OF ARTICLE 2 OF THE SAID REGULATIONS, ' EACH INSTITUTION SHALL DETERMINE WHO WITHIN IT SHALL EXERCISE THE POWERS CONFERRED BY THESE STAFF REGULATIONS ON THE APPOINTING AUTHORITY '.

THEREFORE IT FOLLOWS THAT THE APPOINTING AUTHORITY ACTS IN THE NAME OF THE INSTITUTION WHICH HAS DESIGNATED IT, SO THAT THE ACTS AFFECTING THE LEGAL SITUATION OF OFFICIALS AND CAPABLE OF ADVERSELY AFFECTING THEM MUST BE DEEMED TO BE THOSE OF THE INSTITUTION BY WHICH THEY ARE EMPLOYED .

ALTHOUGH ARTICLE 90 OF THE STAFF REGULATIONS LAYS DOWN THAT A COMPLAINT MUST BE SUBMITTED TO THE APPOINTING AUTHORITY, THIS IS BECAUSE SUCH A PROCEDURE CONSTITUTES AN APPEAL THROUGH OFFICIAL CHANNELS AND WITH NO CONTENTIOUS ELEMENT .

FINALLY, SINCE EACH OF THE COMMUNITIES HAS A SEPARATE LEGAL PERSONALITY, AND SINCE THE TREATIES HAVE NOT ESTABLISHED THE COUNCILS AS A COMMON INSTITUTION, THE MERE FACT THAT ONLY ONE SECRETARIAT EXISTS CANNOT SHOW THAT THE SAID COUNCILS ARE A SINGLE LEGAL ENTITY .

UNDER THE TERMS OF THE GENERAL PROVISIONS OF THE TREATIES CONCERNING ACTIONS BEFORE THE COURT THE ACTION MUST BE BROUGHT AGAINST THE INSTITUTION RESPONSIBLE FOR THE ACT .

FOR ALL THESE REASONS THIS APPLICATION MUST BE CONSIDERED AS DIRECTED AGAINST THE COUNCILS OF THE EEC, THE EAEC AND THE ECSC BY WHICH THE APPLICANT IS EMPLOYED . P.396

ADMISSIBILITY

1 . IN THIS APPLICATION THE APPLICANT ASKS TO BE CLASSIFIED AT STEP 3 OF GRADE B1 WITH SENIORITY IN THAT STEP AS FROM 1 APRIL 1961 .

THE DEFENDANTS ASSERT THAT, SINCE A STEP CAN ONLY BE GRANTED IN A GIVEN GRADE, THE CONCLUSIONS OF THIS APPLICATION CONTRADICT THOSE OF APPLICATION 28/64, THE OBJECT OF WHICH WAS THE CLASSIFICATION OF THE APPLICANT IN EITHER GRADE A3 OR A POST IN THE CAREER BRACKET A5-A4 . THEY STATE THAT FOR THIS REASON THE PRESENT APPLICATION IS INADMISSIBLE .

IN SPITE OF THE APPLICANT'S ASSERTIONS TO THE CONTRARY, THIS APPLICATION MUST BE CONSIDERED AS AN ALTERNATIVE TO APPLICATION 28/64 . IN FACT ITS CONCLUSIONS WOULD ONLY CEASE TO BE RELEVANT IF A RIGHT ON THE PART OF THE APPLICANT TO BE GRADED IN A5-A4 OR IN A3 HAD BEEN RECOGNIZED . NO SUCH RIGHT HAS BEEN RECOGNIZED, AS THE CONCLUSIONS IN FAVOUR OF THIS GRADING WERE REJECTED BY THE COURT AS UNFOUNDED IN ITS JUDGMENT OF 7 APRIL 1965 IN CASE 28/64 .

THEREFORE THE INTEREST OF THE APPLICANT IN BEING CLASSIFIED AT A HIGHER STEP OF GRADE B1 CANNOT BE DENIED . IT FOLLOWS THAT THE OBJECTION OF INADMISSIBILITY IS UNFOUNDED .

2 . THE DEFENDANTS ALSO ASSERT THAT THE PRESENT APPLICATION IS OUT OF TIME, HAVING REGARD TO THE FACT THAT THE ALLEGED GROUND OF COMPLAINT AROSE FROM THE DECISION OF 28 MARCH 1963 AND 21 JUNE 1963 BY WHICH THE APPLICANT WAS CLASSIFIED AT STEP I OF GRADE B1, SO THAT IT IS AGAINST THOSE DECISIONS, OR AT LEAST AGAINST THAT OF 21 JUNE 1963, THAT HE SHOULD HAVE DIRECTED HIS APPLICATION WITHIN THE TIME-LIMIT LAID DOWN BY ARTICLE 91 OF THE STAFF REGULATIONS .

MOREOVER, AS THE DECISION OF THE COUNCILS ADOPTING THE DEFINITIONS OF THE DUTIES AND POWERS ATTACHING TO EACH BASIC POST, WITHIN THE MEANING OF ARTICLE 5(4 ) OF THE STAFF REGULATIONS, WAS BROUGHT TO THE ATTENTION OF THE STAFF ON 15 OCTOBER 1963, THE APPLICANT WAS IN A POSITION, FROM THIS DATE AT LEAST, TO REALIZE THAT A DECISION CONCERNING HIM HAD BEEN TAKEN . SINCE THE APPLICANT NEITHER MADE AN APPEAL NOR SUBMITTED A COMPLAINT AGAINST THE SAID DECISIONS WITHIN THE PRESCRIBED TIME-LIMIT, IT IS CLAIMED THAT HE IS TIME-BARRED .

ON THE OTHER HAND, THE APPLICANT ARGUES THAT IT WAS ONLY AFTER READING THE LETTER OF 2 JULY 1964 FROM THE SECRETARY-GENERAL THAT HE WAS IN A POSITION TO APPRECIATE THE INJURY WHICH HE HAD SUFFERED IN THE MATTER OF HIS GRADING, AND PARTICULARLY AS REGARDS HIS BEING GIVEN STEP I OF GRADE B1 .

THE ABOVEMENTIONED DEFINITIONS DO NO MORE THAN STATE THE GRADE IN WHICH EACH BASIC POST MUST BE CLASSIFIED IN EACH CATEGORY OR IN THE LANGUAGE SERVICE . THEY DO NOT ESTABLISH ANY CRITERIA FOR THE ALLOCATION OF STEPS . THE DECISIONS OF 28 MARCH AND 21 JUNE 1963 APPOINTED THE APPLICANT TO GRADE B1, STEP 1, WHEREAS HE HAD BEEN CLASSIFIED IN GRADE B1, STEP 3 . THUS THESE DECISIONS GAVE HIM A STEP WHICH WAS LOWER THAN THE ONE WHICH HE HAD HELD PREVIOUSLY AND TO WHICH HE CLAIMS TO BE ENTITLED .

THEREFORE IT IS AGAINST THESE DECISIONS THAT HE SHOULD HAVE MADE HIS APPLICATION WITHIN THE TIME-LIMIT LAID DOWN BY ARTICLE 91 OF THE STAFF REGULATIONS . HOWEVER, IN HIS COMPLAINT OF 19 APRIL 1963, SUBMITTED TO THE SECRETARY-GENERAL OF THE COUNCILS, HE ASKED THAT HIS CLASSIFICATION IN GRADE B1, STEP I, SHOULD BE APPLICABLE AS FROM A DATE DIFFERENT FROM THAT MENTIONED IN THE DECISION OF 28 MARCH 1963, BUT DID NOT RAISE ANY CRITICISM AS TO THE STEP WHICH HAD BEEN GIVEN TO HIM .

THE SECRETARY-GENERAL TOOK NOTE OF HIS COMPLAINT BY THE DECISION OF 21 JUNE 1963 WHICH GRANTED HIM STEP I OF GRADE B1 AS FROM 1 JANUARY 1962 .

3 . IT WAS ONLY ON 15 JULY 1964 THAT THE APPLICANT SUBMITTED TO THE SECRETARY-GENERAL OF THE COUNCILS A COMPLAINT, WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS, BY WHICH HE ASKED TO BE CLASSIFIED AT STEP 3 OF GRADE B1 .

THUS BOTH THAT COMPLAINT AND THIS APPLICATION AGAINST THE REJECTION OF THE COMPLAINT WERE MADE AFTER THE EXPIRY OF THE TIME-LIMITS, CALCULATED AS RUNNING FROM THE TIME OF THE SAID DECISIONS .

NEVERTHELESS THE APPLICANT ASSERTS THAT THE JUDGMENT DELIVERED BY THE COURT ON 7 JULY 1964 IN CASE 70/63 CONSTITUTES A NEW FACTOR CALCULATED TO CHANGE THE ESSENTIAL CIRCUMSTANCES AND CONDITIONS WHICH LED TO THE DISPUTED GRADING AND THAT THIS ENABLED THE PERIOD FOR LODGING THE APPEAL TO START TO RUN AFRESH . HE DEDUCES FROM THIS THAT BOTH THE COMPLAINT OF 15 JULY 1964 AND THE PRESENT APPLICATION ARE ADMISSIBLE, AS THEY WERE MADE WITHIN THE TIME - LIMITS CALCULATED AS RUNNING FROM THE DATE WHEN THE JUDGMENT IN CASE 70/63 WAS GIVEN .

APART FROM THE ACTUAL PARTIES IN PROCEEDINGS BEFORE THE COURT, THE ONLY PERSONS CONCERNED BY THE LEGAL EFFECTS OF A JUDGMENT OF THE COURT ANNULLING A MEASURE ARE THE PERSONS DIRECTLY AFFECTED BY THE MEASURE WHICH IS ANNULLED . SUCH A JUDGMENT CAN ONLY CONSTITUTE A NEW FACTOR AS REGARDS THOSE PERSONS .

HOWEVER, IT IS EVIDENT THAT THE APPLICANT WAS NOT DIRECTLY CONCERNED BY THE MEASURE ANNULLED BY THE JUDGMENT IN CASE 70/63 . THEREFORE THE SAID JUDGMENT IN CASE 70/63 CANNOT BE CONSIDERED, AS REGARDS THE APPLICANT, AS A NEW FACTOR CAPABLE OF CAUSING TIME TO START TO RUN AFRESH IN THIS CASE AFTER IT HAS ONCE EXPIRED .

FOR ALL THESE REASONS IT MUST BE CONCLUDED THAT THIS APPLICATION WAS MADE OUT OF TIME, AND THAT IT MUST ON THIS ACCOUNT BE DISMISSED AS INADMISSIBLE .

THE APPLICANT HAS FAILED IN HIS APPLICATION .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES, THE COSTS INCURRED BY INSTITUTIONS IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .

THE COURT

HEREBY :

1 . DISMISSES THE PRESENT APPLICATION AS INADMISSIBLE .

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE PROCEEDINGS, WITH THE EXCEPTION OF THOSE INCURRED BY THE DEFENDANT .