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Judgment of the Court (First Chamber) of 8 July 1965. - Stefan Krawczynski v Commission of the EAEC. - Case 83-63. European Court reports French edition Page 00773 Dutch edition Page 00806 German edition Page 00828 Italian edition Page 00740 English special edition Page 00623 Danish special edition Page 00105 Greek special edition Page 00145 Portuguese special edition Page 00179

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

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1 . PROCEDURE - CONCLUSIONS IN THE APPLICATION - AMENDMENT IN THE COURSE OF PROCEEDINGS - PROHIBITED IN PRINCIPLE - PERMISSIBILITY IN CERTAIN CIRCUMSTANCES

( RULES OF PROCEDURE, ARTICLE 42(2 ))

1 . AMENDMENT OF THE CONCLUSIONS OF THE APPLICATION IN THE COURSE OF THE PROCEEDINGS IS ONLY PERMISSIBLE IF SUCH AMENDMENT IS BASED ON MATTERS OF LAW OR OF FACT WHICH COME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE .

2 . AN OFFICIAL IS ENTITLED TO REQUEST THE COURT TO GIVE A RULING ON THE LEGALITY OF HIS CLASSIFICATION AS SUCH AN APPEAL CONSTITUTES A DISPUTE OF A FINANCIAL CHARACTER, WITHIN THE MEANING OF ARTICLE 91(1 ) OF THE STAFF REGULATIONS OF OFFICIALS .

IN CASE 83/63

STEFAN KRAWCZYNSKI, DOCTOR OF NATURAL SCIENCES, GRADUATE IN PHYSICAL SCIENCE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, RESIDENT AT 33 VIA MILANO, ANGERA ( ITALY ), ASSISTED BY ERNEST ARENDT, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND-DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS SAID COUNSEL, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, BRUSSELS, REPRESENTED BY ITS LEGAL ADVISER, JEAN-PIERRE DELAHOUSE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION CONCERNING THE CLASSIFICATION OF THE APPLICANT, THE LACK OF PROTECTION AGAINST THE ALLEGED ANIMOSITY SHOWN BY A SENIOR OFFICIAL AND THE ALLEGED LACK OF ORGANIZATION AT THE JOINT NUCLEAR RESEARCH CENTRE AT ISPRA;

P.632

I - ADMISSIBILITY

1 . THE DEFENDANT MAINTAINS THAT, AS THE SUBJECT OF THIS APPLICATION IS THE SAME AS THAT OF THE APPLICANT'S COMPLAINT OF 16 OCTOBER 1962 THROUGH OFFICIAL CHANNELS AND AS THE REJECTION OF THAT COMPLAINT WAS NOT CONTESTED WITHIN THE PRESCRIBED PERIOD, THE APPLICATION IS INADMISSIBLE .

THE PRESENT APPLICATION IS BASED ON THREE ISSUES, NAMELY : THE CLASSIFICATION OF THE APPLICANT, THE FAILURE TO PROTECT HIM AGAINST THE ALLEGED ANIMOSITY OF MR GUERON AND THE ALLEGED LACK OF ORGANIZATION AT THE ISPRA CENTRE .

THE ABOVEMENTIONED COMPLAINT THROUGH OFFICIAL CHANNELS, WHICH WAS IN FACT FORMULATED BEFORE THE APPLICANT WAS ESTABLISHED, DID NOT REFER TO HIS CLASSIFICATION .

P.633

IN RESPECT OF THE OTHER TWO ISSUES OF THE PRESENT APPLICATION, THE APPLICANT RELIES ON A FACT WHICH AROSE AFTER THE DISMISSAL OF THIS COMPLAINT, NAMELY THE INCIDENT OF 25 APRIL 1963 .

THEREFORE, TO THE EXTENT TO WHICH THE APPLICANT BASES HIS APPLICATION ON THIS INCIDENT, THE OBJECTION MUST BE DISMISSED .

2 . THE COURT FINDS OF ITS OWN MOTION THAT THE REPLY SETS OUT THE CONCLUSIONS OF THE APPLICATION IN AN AMENDED FORM WITHOUT GIVING THE FACTORS WHICH MIGHT HAVE JUSTIFIED SUCH AN AMENDMENT .

ALTHOUGH, ACCORDING TO ARTICLE 42(2 ) OF THE RULES OF PROCEDURE, NO FRESH ISSUE MAY BE RAISED IN THE COURSE OF PROCEEDINGS UNLESS IT IS BASED ON MATTERS OF LAW OR OF FACT WHICH COME TO LIGHT IN THE COURSE OF THE WRITTEN PROCEDURE, THIS CONDITION GOVERNS A FORTIORI ANY AMENDMENT TO THE CONCLUSIONS .

THUS, ONLY THE CONCLUSIONS SET OUT IN THE ORIGINATING APPLICATION MAY BE TAKEN INTO CONSIDERATION .

IT FOLLOWS FROM THESE FACTORS THAT THE APPLICATION IS ADMISSIBLE SUBJECT TO THE ABOVEMENTIONED RESERVATIONS .

THE DEFENDANT CONTESTS THE ADMISSIBILITY OF THE FIRST SUBMISSION, ON THE GROUND THAT AN OFFICIAL IS NOT ENTITLED TO REQUEST THE COURT TO GIVE A RULING ON THE LEGALITY OF HIS CLASSIFICATION .

THIS OBJECTION IS UNFOUNDED, SINCE ARTICLE 91(1 ) OF THE STAFF REGULATIONS OF OFFICIALS REFERS EXPRESSLY TO ' DISPUTES OF A FINANCIAL CHARACTER BETWEEN ONE OF THE COMMUNITIES AND ANY PERSON TO WHOM THESE STAFF REGULATIONS APPLY .

II - THE SUBSTANCE OF THE APPLICATION

1 . THE FIRST SUBMISSION

A - PRELIMINARY CONSIDERATIONS

1 . THE PRESENT APPLICATION ARISES OUT OF THE EXPRESS REJECTION OF 23 JULY 1963 OF THE COMPLAINT SUBMITTED BY THE APPLICANT THROUGH OFFICIAL CHANNELS ON 17 MAY 1963 REQUESTING A REVISION OF THE GRADE IN WHICH HE HAD JUST BEEN ESTABLISHED .

THUS, IN CONSIDERING WHETHER THIS COMPLAINT IS WELL FOUNDED, THE FACTS MUST BE EXAMINED AS THEY EXISTED AT 23 JULY 1963, EXCLUDING LATER EVENTS .

P.634

2 . THE DEFENDANT ESTABLISHED THE APPLICANT IN GRADE A5, WHICH CORRESPONDS TO THE GRADE WHICH HE HAD BEEN ACCORDED BEFORE THE STAFF REGULATIONS WERE APPLIED TO HIM .

AS THE COURT HAS PREVIOUSLY HELD, ARTICLE 102 OF THE STAFF REGULATIONS ENABLED THE INSTITUTIONS TO PROCEED IN THIS MANNER, ALTHOUGH THEY WERE REQUIRED TO REGULARIZE THE POSITION OF THE PERSON CONCERNED IF NECESSARY UNDER THE PRINCIPLE OF THE CORRESPONDENCE BETWEEN DUTIES AND GRADES .

THUS, IT IS NECESSARY IN THIS CASE TO CONSIDER WHETHER THIS PRINCIPLE OBLIGED THE DEFENDANT TO CLASSIFY THE APPLICANT IN GRADE A3 OR, ALTERNATIVELY, IN GRADE A4 .

IN SO DOING, IT IS FIRST NECESSARY TO TAKE INTO CONSIDERATION THE POSITION OF THE APPLICANT AT 1 JANUARY 1962, THE DATE ON WHICH HIS ESTABLISHMENT CAME INTO RETROACTIVE EFFECT .

HOWEVER, AS THE APPLICANT WAS ONLY INFORMED OF HIS ESTABLISHMENT IN 1963, IT IS NECESSARY TO DISCOVER WHETHER THE CHANGES WHICH OCCURRED IN HIS POSITION BETWEEN 1 JANUARY 1962 AND 23 JULY 1963 LEAD TO A DIFFERENT ASSESSMENT .

THIS TABLE LAYS DOWN, IN PARTICULAR AS REGARDS CAREER BRACKETS A3, A4 AND A5-A8, TWO ALTERNATIVE CRITERIA, ONE OF WHICH REFERS PRIMARILY TO THE RANK IN THE SERVICE OF THE PERSON CONCERNED AND THE OTHER TO HIS DESIGNATION AND THE SCIENTIFIC OR TECHNICAL NATURE OF HIS DUTIES .

IT IS THEREFORE NECESSARY TO EXAMINE THE APPLICANT'S COMPLAINT IN THE LIGHT OF EACH OF THESE CRITERIA, HEREINAFTER REFERRED TO AS ' THE CRITERION OF RANK ' AND ' THE SCIENTIFIC AND PERSONAL CRITERION '.

B - APPLICATION OF THE CRITERION OF RANK

( 1 ) POSITION OF THE APPLICANT AT 1 JANUARY 1962

THE APPLICANT MAINTAINS THAT, IN THE ESTABLISHMENT REPORT AND IN A DETAILED LIST OF POSTS OF THE ISPRA CENTRE DRAWN UP IN JANUARY 1962, HE WAS DESCRIBED RESPECTIVELY AS ' ENTRUSTED WITH THE DIRECTION OF THE REPROCESSING DEPARTMENT ' AND ' RESPONSIBLE ' FOR THAT ' DEPARTMENT '.

HE BASES HIS CLAIM TO GRADE A3 ON THE FACT THAT, ACCORDING TO THE TERMINOLOGY IN FORCE AT THAT TIME, THE ADMINISTRATIVE UNIT DESCRIBED AS A ' DEPARTMENT ' (' SERVICE ') CORRESPONDED TO THE UNIT DESCRIBED IN THE TABLE OF DEFINITIONS AS A ' DIVISION ' AND THAT BOTH WERE DIRECTLY RESPONSIBLE TO THE UNIT KNOWN AS A ' DEPARTMENT ' (' DEPARTMENT ') BOTH BEFORE AND AFTER THE ENTRY INTO FORCE OF THAT TABLE .

P.635

ALTERNATIVELY, HE CLAIMS THAT HE SHOULD BE CLASSIFIED IN GRADE A4, ON THE GROUND THAT THE TABLE OF DEFINITIONS MENTIONS THIS GRADE IN RELATION TO ' HEADS OF DEPARTMENT ' (' CHEFS DE SERVICE ').

THE DEFENDANT OBJECTS THAT AS, AT THAT TIME, THE RESEARCH PROGRAMMES OF EURATOM AND THE DETAILS OF THEIR IMPLEMENTATION WERE NOT YET CRYSTALLIZED, IT HAD BEEN IMPOSSIBLE TO GIVE A FINAL STRUCTURE TO THE SCIENTIFIC SERVICES .

IN ADDITION, IT MAINTAINS THAT THE ABOVEMENTIONED DETAILED LIST OF POSTS HAD BEEN DRAWN UP BY THE AUTHORITIES AT ISPRA AND HAD NOT BEEN SUBMITTED FOR APPROVAL TO THE CENTRAL ADMINISTRATION OF EURATOM .

FINALLY, IT OBSERVES THAT THE TERMINOLOGY REFERRED TO BY THE APPLICANT WAS IN USE AT A TIME WHEN ITS AUTHORS WERE INEVITABLY UNAWARE BOTH OF THE WORDING OF THE STAFF REGULATIONS, WHICH DOES NOT EMPLOY THIS TERMINOLOGY, AND OF THE TABLE OF DEFINITIONS .

THE APPLICANT HAS NOT SERIOUSLY CHALLENGED THE PROVISIONAL AND PRECARIOUS NATURE OF THE STRUCTURES IN PREPARATION OR ENVISAGED AT THAT TIME .

THIS PROVISIONAL AND PRECARIOUS NATURE HAS MOREOVER BEEN CONFIRMED BY THE EVIDENCE OF MR RITTER, AUTHOR OR CO-AUTHOR OF THE EXPRESSIONS REFERRED TO BY THE APPLICANT AND WHOSE GOODWILL TOWARDS HIM IS NOT IN DOUBT .

IT IS CLEAR FROM THIS EVIDENCE IN PARTICULAR THAT THE AUTHORS CONSIDERED THE WORD ' DEPARTMENT ' (' SERVICE ') TO REFER TO A SECTOR OF ACTIVITY AND NOT TO AN ADMINISTRATIVE UNIT .

HOWEVER, THE DEFENDANT'S ARGUMENT THAT THE TABLE OF DEFINITIONS WAS DRAWN UP SUBSEQUENTLY IS NOT OF FINAL RELEVANCE .

IN FACT, BEING AN IMPLEMENTING PROVISION OF THE STAFF REGULATIONS, THIS TABLE, LIKE THE REGULATIONS THEMSELVES, IS RETROACTIVE TO 1 JANUARY 1962 .

IT ADOPTS TO A CONSIDERABLE EXTENT THE CONCEPTS OF THE ABOVEMENTIONED DETAILED LIST OF POSTS, IN PARTICULAR BY MAKING THE SMALLER ' DEPARTMENT ' (' SERVICE ') RANK BELOW THE LARGER ' DEPARTMENT ' (' DEPARTEMENT ') AND THE ' SECTIONS ' AND ' GROUPS ' BELOW THE SMALLER ' DEPARTMENT ' (' SERVICE ').

P.636

FINALLY, IT SEEMS TO ASSUME THAT NORMALLY THE PERSON RESPONSIBLE FOR A SECTOR OF ACTIVITY WHICH IS CONTROLLED DIRECTLY BY A LARGER DEPARTMENT (' DEPARTEMENT ') PERFORMS DUTIES CORRESPONDING TO GRADE A3 OR, AT LEAST, TO GRADE A4 .

THIS BEING SO, THE PROBLEM IS REDUCED TO THE QUESTION WHETHER THE DUTIES PERFORMED BY THE APPLICANT AT 1 JANUARY 1962 WERE ALREADY SUFFICIENTLY CLEARLY DEFINED TO FALL, FROM THE POINT OF VIEW OF THE CRITERION OF RANK, WITHIN ONE OF THE CONCEPTS SET OUT IN THE TABLE OF DEFINITIONS .

IT IS CLEAR FROM THE ALLEGATIONS OF THE APPLICANT HIMSELF THAT AT THIS DATE HIS HOPES AND THOSE OF MR RITTER THAT THE ' REPROCESSING ' ACTIVITIES WOULD PLAY A ROLE OF PARTICULAR IMPORTANCE WERE ALREADY SERIOUSLY THREATENED BY THE CONTRARY INTENTIONS OF THE CENTRAL ADMINISTRATION OF EURATOM, WHICH WERE TO TAKE SHAPE A SHORT TIME LATER .

FURTHERMORE, THE FILE SHOWS THAT AT THIS TIME THE APPLICANT'S WORK HAD NOT REALLY PROGRESSED FROM THE STAGE OF PREPARATORY STUDIES AND ABSTRACT PLANNING .

ALTHOUGH IT IS POSSIBLE THAT THE REALIZATION OF EARLIER PLANS MIGHT HAVE INVOLVED THE APPLICANT IN RESPONSIBILITIES IMPLYING A HIGHER CLASSIFICATION, THE COURT CANNOT BASE ITS JUDGMENT ON SUCH HYPOTHESES, WHICH ARE BY DEFINITION UNCERTAIN .

THIS BEING SO, THE APPLICANT'S STATEMENT THAT MR RITTER HAD PROMISED TO ENTRUST TO HIM CERTAIN PROJECTS IN THE FIELD OF REPROCESSING IS IRRELEVANT .

ALTHOUGH IT MAY BE ACCEPTED THAT THESE WERE THE PROSPECTS HELD OUT BY MR RITTER TO HIS FUTURE COLLEAGUE, ANY LEGAL OBLIGATION TO THAT EFFECT IS EXCLUDED BY THE FACT THAT THE CONTRACT OF EMPLOYMENT, SIGNED WITHOUT RESERVATION BY THE APPLICANT, CONTAINS NO REFERENCE TO THEM .

HOWEVER REGRETTABLE IT MAY BE THAT THE APPLICANT'S PROFESSIONAL HOPES SHOULD HAVE BEEN DISAPPOINTED, THEY CANNOT BE LIKENED TO HARD FACTS WHEN CONSIDERING CLASSIFICATION .

IN THESE CIRCUMSTANCES THE PARTICIPATION OF THE APPLICANT IN THE WORK OF CERTAIN COMMITTEES, WHICH, MOREOVER, HAD NO DEFINED STRUCTURE, IS NO MORE CONCLUSIVE .

IN SHORT, FROM THE POINT OF VIEW OF THE CRITERION OF RANK CONSIDERED AT 1 JANUARY 1962, THE APPLICANT'S CLAIMS ARE UNFOUNDED .

P.637

( 2 ) POSITION OF THE APPLICANT AT 23 JULY 1963

BY A DECISION OF MR GUERON AND MR RITTER TAKING EFFECT ON 1 JUNE 1962, THE APPLICANT WAS GIVEN THE DUTIES OF ' HEAD OF THE SECTION CONCERNED WITH DECONTAMINATION AND PROCESSING OF EFFLUENTS '; HE STILL HAD THIS DESIGNATION AND WAS STILL PERFORMING THESE DUTIES AT 23 JULY 1963 .

ACCORDING TO THE TABLE OF DEFINITIONS, THE DUTIES OF HEAD OF SECTION CORRESPOND TO CAREER BRACKET A5-A8 .

HOWEVER, AS THE DEFENDANT ADMITS BY IMPLICATION, THIS ARGUMENT ALONE IS NOT CAPABLE OF REFUTING THE APPLICANT'S CLAIMS .

IN FACT, EVEN AFTER PUBLICATION OF THE TABLE OF DEFINITIONS, AND AT LEAST AS REGARDS THE DEPARTMENT TO WHICH THE APPLICANT BELONGS, THE DEFENDANT CONTINUED TO USE THE TERM ' SECTIONS ' IN RELATION TO UNITS DIRECTLY RESPONSIBLE, IN THE SAME WAY AS THE UNIT DIRECTED BY THE APPLICANT, TO THIS DEPARTMENT, WHILST ACCORDING TO THE ABOVEMENTIONED TABLE THE DUTIES OF HEAD OF SUCH A UNIT NORMALLY CORRESPOND TO GRADE A3 OR A4 .

MOREOVER, THE DEFENDANT ENTRUSTED RESPONSIBILITY FOR THE MAJORITY OF THESE ' SECTIONS ' TO OFFICIALS ESTABLISHED IN GRADE A4, CERTAIN OF WHOM DIRECT GROUPS CONTAINING NUMBERS EQUAL TO OR EVEN SMALLER THAN THE ' SECTION ' OF THE APPLICANT .

THE RATHER INCOHERENT AND CONFUSING WAY IN WHICH THE DEFENDANT HAS APPLIED THE CRITERIA OF RANK CONTAINED IN THE TABLE OF DEFINITIONS IS SHOWN BY THE FACT THAT, WHEN HEARD BY THE COURT, MR RITTER REFERRED TO THE APPLICANT AS AN ' ABTEILUNGSLEITER ', WHICH IS EQUIVALENT TO A ' HEAD OF DIVISION ' IN THE GERMAN VERSION OF ANNEX IB TO THE STAFF REGULATIONS .

IN SHORT, AS REGARDS THE TABLE OF DEFINITIONS, THE POSITION OF THE APPLICANT WITH REGARD TO RANK IS, TO SAY THE LEAST, AMBIGUOUS .

IT IS, HOWEVER, UNNECESSARY TO CONSIDER THIS QUESTION IN GREATER DEPTH .

IN FACT, AS PUBLICATION OF THE TABLE OF DEFINITIONS TOOK PLACE ONLY A SHORT TIME BEFORE THE REJECTION OF THE APPLICANT'S COMPLAINT, THE DEFENDANT, FINDING IT IMPOSSIBLE TO ADAPT THE CONCEPTS OF THE TABLE OF DEFINITIONS QUICKLY TO THE STILL PRECARIOUS STRUCTURE OF THE SCIENTIFIC SERVICES, WAS ABLE TO RELY IN THE FIRST PLACE ON THE SCIENTIFIC AND PERSONAL CRITERION .

IT IS THEREFORE ESSENTIALLY THIS CRITERION WHICH MUST BE TAKEN INTO CONSIDERATION IN GIVING A DECISION ON THE PRESENT SUBMISSION .

P.638

C - APPLICATION OF THE SCIENTIFIC AND PERSONAL CRITERION

1 . IN THE INITIAL CONSTITUTION OF TEAMS OF RESEARCH WORKERS, THE DEFENDANT RIGHTLY ATTACHED THE GREATEST IMPORTANCE TO CRITERIA BASED ON UNIVERSITY EDUCATION, EXPERIENCE IN EMPLOYMENT AND AGE, WHICH ENABLED THE MOST OBJECTIVE CLASSIFICATION TO BE MADE .

( A ) AS REGARDS THE APPLICANT'S UNIVERSITY EDUCATION IT IS CLEAR THAT HE POSSESSES THE VERY HIGHEST DEGREES WHICH ARE AWARDED IN HIS COUNTRY OF ORIGIN .

FROM THIS POINT OF VIEW, THEREFORE, HE MAY CERTAINLY CLAIM THE BEST CLASSIFICATION WHICH IS LEGALLY COMPATIBLE WITH HIS DUTIES .

THIS VIEW IS CONFIRMED BY THE APPLICANT'S MEMBERSHIP OF CERTAIN SCIENTIFIC BODIES OF THE GREATEST IMPORTANCE .

( B ) HOWEVER, THE CRITERIA BASED ON AGE AND, IN PARTICULAR, ON EXPERIENCE IN EMPLOYMENT TAKE ON GREATER IMPORTANCE WHEN IT IS NECESSARY TO DETERMINE THE CLASSIFICATION OF A RESEARCH WORKER WHOSE DUTIES INVOLVE MANAGEMENT .

AT 23 JULY 1963, THE APPLICANT WAS SCARCELY 34 YEARS OLD .

AMONG THE HEADS OF THE ' SECTIONS ' WITHIN THE SAME DEPARTMENT, ONLY ONE, MR LAURENT, OBTAINED GRADE A4 BEFORE HE HAD REACHED THE AGE OF 34 .

AS REGARDS THE EFFECT OF THE CRITERION OF AGE, THE COURT HAS EXAMINED THE DOCUMENTS SUPPLIED BY THE DEFENDANT, THE CONTENT OF WHICH HAS NOT BEEN CONTESTED BY THE APPLICANT, AND THE EVIDENCE OF MR HUBERT .

IT IS CLEAR FROM THESE TWO SOURCES THAT EVEN ASSUMING THE APPLICANT TO HAVE BEEN RECRUITED WITH PROSPECT OF A ' BRILLANT ' CAREER HE SUFFERED NO DISCRIMINATION FROM THE POINT OF VIEW OF AGE .

AT 23 JULY 1963, THE APPLICANT HAD APPROXIMATELY SEVEN YEARS' EXPERIENCE IN EMPLOYMENT .

AMONG THE HEADS OF ' SECTION ' WITHIN THE SAME DEPARTMENT, ONLY ONE, MR HANNAERT, OBTAINED GRADE A4 WITH LESS THAN 7 YEARS' EXPERIENCE .

MOREOVER, IT IS CLEAR FROM ONE OF THE ABOVEMENTIONED DOCUMENTS THAT NORMALLY ADVANCEMENT INTO GRADE A4, EVEN BY A ' BRILLANT ' RESEARCH WORKER, IS ONLY ENVISAGED AFTER HE HAS ACQUIRED NINE YEARS' EXPERIENCE IN EMPLOYMENT .

P.639

THIS IS LARGELY CONFIRMED BY THE INFORMATION CONCERNING THE HEADS OF ' SECTION ' WITHIN THE DEPARTMENT IN QUESTION .

THUS IT IS CLEAR THAT, AS REGARDS EXPERIENCE IN EMPLOYMENT, THE APPLICANT SUFFERED NO DISCRIMINATION .

2 . THE APPLICANT CLAIMS TO HAVE SUFFERED DISCRIMINATION INASMUCH AS, BY AN AGREEMENT MADE WITH THE FEDERAL REPUBLIC OF GERMANY, THE DEFENDANT IS ALLEGED TO HAVE UNDERTAKEN NOT TO PAY TO GERMAN RESEARCH WORKERS, DURING THE PROBATIONARY PERIOD, A SALARY WHICH EXCEEDED BY MORE THAN 20 PER CENT OF THAT PREVIOUSLY PAID IN GERMANY . THE DEFENDANT CATEGORICALLY DENIES THIS STATEMENT .

IN FACT, IT APPEARS MOST IMPROBABLE THAT A MEMBER STATE AND AN INSTITUTION OF THE COMMUNITIES SHOULD HAVE UNDERTAKEN OBLIGATIONS OF SUCH MANIFEST ILLEGALITY .

QUITE ANOTHER QUESTION IS WHETHER THE DEFENDANT OF ITS OWN ACCORD TOOK INTO ACCOUNT THE SALARY PREVIOUSLY PAID IN GERMANY IN FIXING THE INITIAL CLASSIFICATION OF RESEARCH WORKERS .

WHATEVER THE ANSWER MAY BE, IT APPEARS TO BE IMPOSSIBLE THAT AT 23 JULY 1963 THE APPLICANT'S CLASSIFICATION, ALREADY JUSTIFIED BY THE CRITERIA OF AGE AND EXPERIENCE IN EMPLOYMENT, COULD HAVE BEEN INFLUENCED BY SUCH DISTORTIONS .

3 . IT FOLLOWS FROM ALL THESE FACTORS THAT, FROM THE POINT OF VIEW OF THE SCIENTIFIC AND PERSONAL CRITERION CONSIDERED AT 23 JULY 1963, THE DEFENDANT WAS ENTITLED TO CONTINUE TO CLASSIFY THE APPLICANT IN GRADE A5 .

SINCE THE DISPUTED CLASSIFICATION IS THUS OBJECTIVELY JUSTIFIED, THE APPLICANT'S ALLEGATION THAT IT WAS THE RESULT OF MR GUERON'S ANIMOSITY IS SHOWN LOGICALLY TO BE WITHOUT FOUNDATION .

IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THE PRESENT SUBMISSION MUST BE REJECTED .

HOWEVER, THIS DECISION IN NO WAY PREJUDICES AN ASSESSMENT OF THE APPLICANT'S POSITION AT A DATE SUBSEQUENT TO 23 JULY 1963, PARTICULARLY IN THE LIGHT OF THE DEVELOPING NATURE OF THE CRITERIA OF AGE AND EXPERIENCE IN EMPLOYMENT AND OF THE NEED TO ADAPT THE ADMINISTRATIVE STRUCTURE OF THE SERVICES AT ISPRA TO THE CONCEPTS AND THE SPIRIT OF THE TABLE OF DEFINITIONS, WHATEVER THE DIFFICULTIES INHERENT IN THE ESTABLISHMENT OF SUCH A STRUCTURE FOR SCIENTIFIC WORK .

P.640

2 . THE SECOND SUBMISSION

THIS SUBMISSION FOLLOWS THE IMPLIED REJECTION OF THE COMPLAINT OF 28 APRIL 1963, BY WHICH THE APPLICANT REQUESTED THE DEFENDANT TO ASSIST HIM AGAINST THE ATTITUDE ADOPTED BY MR GUERON .

WITHOUT BEING CONTRADICTED BY THE DEFENDANT ON THE FACTS, THE APPLICANT DESCRIBES THE INCIDENT IN QUESTION IN THE FOLLOWING TERMS : ' I ENTERED THE CONFERENCE ROOM...WHERE I ... MET MESSRS...WHO WERE ENGAGED IN CONVERSATION BEFORE THE MEETING BEGAN . I APPROACHED...MR GUERON AND, GREETING HIM RESPECTFULLY, I OFFERED HIM MY HAND . MR GUERON DID NOT REPLY TO MY GREETING . ON THE CONTRARY HE LEFT ME STANDING THERE WITH MY RIGHT HAND HELD OUT FOR A LONG AND EMBARRASSING MOMENT BEFORE TURNING AWAY BRUSQUELY WITHOUT A WORD '. THE APPLICANT BASES HIS CLAIM ON THE FIRST PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS OF OFFICIALS WHICH OBLIGES THE COMMUNITY TO ASSIST AN OFFICIAL WHO IS THE VICTIM OF CERTAIN TYPES OF WRONGFUL BEHAVIOUR .

MR GUERON'S BEHAVIOUR WAS ALL THE MORE OFFENSIVE AS IT OCCURRED IN THE PRESENCE OF NUMEROUS OTHER PEOPLE AND WAS PERPETRATED BY A SENIOR OFFICIAL WHO SHOULD HAVE KNOWN, BETTER THAN ANY OTHER, HOW TO MASTER HIS IRRITATION, HOWEVER JUSTIFIED .

SUCH BEHAVIOUR IS NOT, HOWEVER, SUFFICIENTLY SERIOUS TO JUSTIFY RECOURSE TO ARTICLE 24 OF THE STAFF REGULATIONS OF OFFICIALS .

THE PRESENT CONCLUSIONS MUST THEREFORE BE DISMISSED .

3 . THE THIRD SUBMISSION

BY THIS SUBMISSION THE APPLICANT MAINTAINS THAT HE HAS BEEN ADVERSELY AFFECTED BY THE ALLEGED LACK OF ORGANIZATION AT THE ISPRA CENTRE .

ALTHOUGH THIS GROUND OF COMPLAINT IS SET OUT IN THE ORIGINATING APPLICATION, IT IS REPEATED IN THE CONCLUSIONS ONLY IN THE FORM OF AN OFFER OF PROOF AND IS, MOREOVER, SUBMITTED ' IN THE ALTERNATIVE '.

A CONCLUSION TO THIS EFFECT WAS ONLY SET OUT IN THE REPLY .

SUCH A METHOD OF PROCEEDING IS INCOMPATIBLE WITH THE REQUIREMENT OF ARTICLE 38(1)(D ) OF THE RULES OF PROCEDURE, ACCORDING TO WHICH THE SUBMISSIONS OF THE APPLICANT (' LES CONCLUSIONS DU REQUERANT ') MUST BE CONTAINED IN THE APPLICATION .

IN THE ABSENCE OF ANY REASON JUSTIFYING THE DELAY, CONCLUSIONS SUBMITTED IN THE REPLY ARE INADMISSIBLE .

P.641

4 . OFFERS OF PROOF

AS THE COURT NOW HAS ALL THE INFORMATION NECESSARY TO SETTLE THIS DISPUTE, IT SEEMS UNNECESSARY TO ADMIT THE OFFERS OF PROOF MADE BY THE PARTIES, APART FROM THAT ALREADY ADMITTED BY THE COURT, IN PARTICULAR THAT SET OUT IN THE ' REQUEST FOR THE COMMUNICATION OF ADDITIONAL INFORMATION AND AMPLIFICATION OF EVIDENCE ', FILED BY THE APPLICANT ON 17 DECEMBER 1964 .

THE APPLICANT HAS FAILED IN ALL THE HEADS OF HIS APPLICATION .

THEREFORE, UNDER THE TERMS OF THE COMBINED PROVISIONS OF ARTICLE 69(2 ) AND ARTICLE 70 OF THE RULES OF PROCEDURE, THE APPLICANT MUST BE ORDERED TO PAY THE COSTS OF THE ACTION, WITH THE EXCEPTION OF THOSE INCURRED BY THE DEFENDANT .

IN THIS CASE, HOWEVER, IT IS NECESSARY TO APPLY ARTICLE 69(3 ) OF THOSE RULES ACCORDING TO WHICH, WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

IN FACT, THE INACCURACIES PRACTISED OR TOLERATED BY THE DEFENDANT IN THE DESIGNATION OF THE ADMINISTRATIVE UNITS AND THE CONTRADICTIONS APPEARING IN THE IMPLEMENTATION OF THE TABLE OF DEFINITIONS MAY HAVE BEEN CONTRIBUTORY FACTORS IN THE APPLICANT'S DECISION TO CLAIM A MORE FAVOURABLE CLASSIFICATION .

MOREOVER, THE APPLICANT MAY HAVE REGARDED AS OFFENSIVE THE ATTITUDE SHOWN BY MR GUERON, A SENIOR OFFICIAL EMPLOYED BY THE DEFENDANT, DURING THE MEETING OF 25 APRIL 1963 .

THUS THERE IS REASON TO DIVIDE THE COSTS AS APPEARS IN THE OPERATIVE PART OF THE JUDGMENT .

AS THE WITNESSES WERE HEARD IN THEIR CAPACITY AS OFFICIALS, THEIR TRAVEL EXPENSES MUST BE BORNE BY THE DEFENDANT .

IN ITS ORDER OF 20 JANUARY 1965 THE FIRST CHAMBER OF THE COURT RESERVED THE COSTS RELATING TO THE ' REQUEST FOR THE COMMUNICATION OF ADDITIONAL INFORMATION AND AMPLIFICATION OF EVIDENCE ', FILED BY THE APPLICANT ON 17 DECEMBER 1964 .

THESE COSTS MUST BE BORNE IN THE SAME WAY AS THE COSTS IN THE MAIN ACTION .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE CONCLUSIONS OF THE APPLICANT DIRECTED TO SECURING AN AMENDMENT OF HIS CLASSIFICATION AS UNFOUNDED;

2 . DISMISSES THE CONCLUSIONS OF THE APPLICANT DIRECTED TO OBTAINING A FINDING THAT THE DEFENDANT FAILED IN ITS DUTY OF ASSISTANCE AND PROTECTION AS UNFOUNDED;

3 . DISMISSES THE CONCLUSIONS OF THE APPLICANT CONCERNING THE ALLEGED LACK OF ORGANIZATION AT THE CENTRE AT ISPRA AS INADMISSIBLE;

4 . ( A ) ORDERS THE DEFENDANT TO BEAR ITS OWN COSTS AND TWO-FIFTHS OF THE COSTS OF THE APPLICANT IN THE MAIN ACTION INCURRED IN RESPECT OF THE ' REQUEST FOR THE COMMUNICATION OF ADDITIONAL INFORMATION AND AMPLIFICATION OF EVIDENCE ', FILED BY THE APPLICANT ON 17 DECEMBER 1964;

( B ) ORDERS THE DEFENDANT TO BEAR THE COSTS INCURRED IN CONNEXION WITH THE TRAVELLING EXPENSES OF THE WITNESSES .