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Judgment of the Court of 9 June 1964. - Jean Reynier and Piero Erba v Commission of the European Economic Community. - Joined cases 79-63 and 82-63. European Court reports French edition Page 00511 Dutch edition Page 00541 German edition Page 00561 Italian edition Page 00511 English special edition Page 00259 Danish special edition Page 00489 Greek special edition Page 01111 Portuguese special edition Page 00459

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

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1 . OFFICIALS - DISPUTES WITH THE ADMINISTRATION - ADMINISTRATION MADE PARTY TO THE PROCEEDINGS - APPOINTING AUTHORITY - CAPACITY TO BE A PARTY TO LEGAL PROCEEDINGS

( EEC TREATY, ARTICLE 179; STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLES 90 AND 91 )

2 . OFFICIALS - STAFF REGULATIONS - INTERPRETATION BY THE COURT APPLICABLE TO ALL THE COMMUNITY INSTITUTIONS

( EEC TREATY, ARTICLE 212 )

3 . PROCEDURE - JUDGMENTS OF THE COURT - FORCE OF RES JUDICATA WITH REGARD TO THE DEFENDANT INSTITUTION - SAME FORCE WITH REGARD TO THE COMMUNITY

4 . OFFICIALS - INTEGRATION - GRADE IN WHICH ESTABLISHED

( EEC STAFF REGULATIONS, ARTICLE 102 ( 1 ))

5 . OFFICIALS - CORRESPONDENCE BETWEEN GRADE AND POST - MUST BE TAKEN INTO CONSIDERATION AFTER INTEGRATION

( EEC STAFF REGULATIONS, ARTICLE 102, ANNEX I )

1 . IT FOLLOWS FROM ARTICLE 179 OF THE EEC TREATY AND FROM ARTICLES 90 AND 91 OF THE STAFF REGULATIONS OF OFFICIALS THAT THE APPOINTING AUTHORITY, WHICH EXERCISES IN FACT THE POWERS OF AN EMPLOYER WITH REGARD TO OFFICIALS, HAS THE CAPACITY TO BE A PARTY TO LEGAL PROCEEDINGS IN DISPUTES BETWEEN SERVANTS AND THE ADMINISTRATION .

2 . THE STAFF REGULATIONS OF OFFICIALS WERE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY ARTICLE 212 OF THE TREATY BY THE AUTHORITIES DESIGNATED FOR THE PURPOSE, AND THE INSTITUTIONS ARE BOUND BY THEIR PROVISIONS; THEREFORE THE COURT'S INTERPRETATION OF THE REGULATIONS APPLIES EQUALLY TO ALL THE INSTITUTIONS OF THE COMMUNITY .

3 . SINCE THE COMMUNITY IS A SINGLE ENTITY, IT IS INCONCEIVABLE THAT A JUDGMENT OF THE COURT WHICH HAS THE FORCE OF RES JUDICATA WITH REGARD TO AN INSTITUTION SHOULD NOT HAVE THE SAME FORCE WITH REGARD TO THE COMMUNITY AS A WHOLE .

4 . WITHIN THE MEANING OF ARTICLE 102 ( 1 ) OF THE STAFF REGULATIONS OF THE EEC, SERVANTS ARE TO BE ESTABLISHED UNDER THOSE REGULATIONS IN THE GRADE AND AT THE STEP IMPLIEDLY ACCORDED THEM BEFORE THE REGULATIONS ENTERED INTO FORCE, WITHOUT ITS BEING NECESSARY DURING THIS FIRST PHASE OF THE ESTABLISHMENT OF SERVANTS UNDER THE STAFF REGULATIONS TO TAKE INTO ACCOUNT POSSIBLE DIFFERENCES BETWEEN THIS GRADE AND THAT WHICH SHOULD CORRESPOND TO THE POST IN THE LIGHT OF THE DUTIES WHICH IT INVOLVES .

CF . SUMMARY IN JOINED CASES 20 AND 21/63, PARA . 1 .

5 . ANY SERVANT WHO, AFTER ESTABLISHMENT UNDER THE STAFF REGULATIONS, WAS MAINTAINED IN AN ALREADY EXISTING POST WHICH, IN THE LIGHT OF THE DUTIES WHICH IT INVOLVED, SHOULD CORRESPOND UNDER THE NEW STAFF REGULATIONS TO A HIGHER GRADE THAN THAT OBTAINED IN ACCORDANCE WITH THE PROCEDURE REFERRED TO IN ARTICLE 102, IS ENTITLED TO HAVE HIS POSITION REGULARIZED ACCORDING TO THE PRINCIPLE DRAWN UP IN ANNEX I .

CF . SUMMARY IN JOINED CASES 20 AND 21/63, PARA . 2 .

IN JOINED CASES 79 AND 82/63

JEAN REYNIER AND PIERO ERBA, OFFICIALS OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, AND HEAD OF DEPARTMENT AT THE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, AVOCAT-AVOUE 6 RUE WILLY-GOERGEN, APPLICANTS,

V

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, 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,

1 . APPLICATION FOR :

- ANNULMENT OF THE ESTABLISHMENT OF THE APPLICANTS IN GRADE A 4 AND THE REFUSAL BY THE COMMISSION OF 21 MAY 1963 TO GRANT THEIR REQUEST TO BE RECLASSIFIED IN GRADE A 3;

- AN ORDER THAT THE COMMISSION MUST CLASSIFY THE APPLICANTS IN GRADE A 3;

- AN ORDER THAT THE EUROPEAN ECONOMIC COMMUNITY PAY THE COSTS OF THE APPLICATION;

2 . SUBSIDIARY APPLICATION FOR AN ORDER AGAINST THE EUROPEAN ECONOMIC COMMUNITY FOR THE REPAYMENT OF DAMAGES TO THE APPLICANTS,

ADMISSIBILITY

THE APPLICANTS HAVE NAMED AS DEFENDANTS IN THEIR APPLICATIONS THE EUROPEAN ECONOMIC COMMUNITY OR, ALTERNATIVELY, THE COMMISSION .

ARTICLE 179 OF THE EEC TREATY PROVIDES THAT : ' THE COURT OF JUSTICE SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OF THE CONDITIONS OF EMPLOYMENT '. THE PHRASE ' THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS ' APPLICABLE TO OFFICIALS AND OTHER SERVANTS NECESSARILY IMPLIES THAT THE APPOINTING AUTHORITY, WHICH EXERCISES IN FACT THE POWERS OF AN EMPLOYER WITH REGARD TO OFFICIALS, HAS THE CAPACITY TO BE A PARTY TO LEGAL PROCEEDINGS . IN THIS INSTANCE THE APPOINTING AUTHORITY IS THE COMMISSION ITSELF . THE WORDING OF THE REGULATIONS CONFIRMS THIS REASONING .

UNDER TITLE VIII, HEADED ' APPEALS ', ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN ECONOMIC COMMUNITY IS A CONTINUATION OF ARTICLE 90 WHICH DESCRIBES THE PROCEDURE THROUGH OFFICIAL CHANNELS, WHICH IT IS BOTH LOGICAL AND DESIRABLE TO FOLLOW BEFORE PROCEEDINGS ARE INSTITUTED BEFORE THE COURT . ANY OFFICIAL MAY SUBMIT HIS CASE TO THE APPOINTING AUTHORITY OF HIS INSTITUTION BY MEANS OF THIS PROCEDURE . CONSEQUENTLY THE APPEAL TO THE COURT PROVIDED FOR IN ARTICLE 91 OUGHT, IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY, TO OBEY SIMILAR RULES AND THUS BE DIRECTED AGAINST THAT SAME AUTHORITY .

THE APPLICANTS FURTHER CLAIM THAT IT IS NECESSARY TO COMPEL THE COMMUNITY TO APPEAR BECAUSE IT COMPRISES SEVERAL INSTITUTIONS AND BECAUSE OF THE DISTRIBUTION OF BUDGETARY AND FINANCIAL POWERS AMONG THESE INSTITUTIONS .

THE REGULATIONS WERE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY ARTICLE 212 OF THE TREATY BY THE AUTHORITIES DESIGNATED FOR THE PURPOSE, AND THE INSTITUTIONS ARE BOUND BY THEIR PROVISIONS; THEREFORE THE COURT'S INTERPRETATION OF THE REGULATIONS APPLIES EQUALLY TO ALL THE INSTITUTIONS OF THE COMMUNITY .

MOREOVER, THE FORCE OF RES JUDICATA PREVENTS RIGHTS CONFIRMED BY A JUDGMENT OF THE COURT FROM BEING DISPUTED ANEW . SINCE THE COMMUNITY IS A SINGLE ENTITY, IT IS INCONCEIVABLE THAT JUDGMENT OF THE COURT WHICH HAS THE FORCE OF RES JUDICATA WITH REGARD TO AN INSTITUTION - IN THIS CASE THE COMMISSION - SHOULD NOT HAVE THE SAME FORCE WITH REGARD TO THE COMMUNITY AS A WHOLE .

FOR THESE REASONS THE APPLICATIONS MUST BE REGARDED AS BEING MADE AGAINST THE COMMISSION AND THERE IS, MOREOVER, NO REASON TO HOLD THEM TO BE INADMISSIBLE .

THE SUBSTANCE

THE APPLICANTS SEEK, FIRST, THE ANNULMENT OF THEIR ESTABLISHMENT IN GRADE A 4 .

ARTICLE 102, PARAGRAPHS 1 TO 4 OF WHICH WERE INCORPORATED IN FULL IN ANNEX X TO THE NEW STAFF REGULATIONS OF OFFICIALS OF THE ECSC, WAS DESIGNED TO FIX UNIFORM STANDARDS NOT MERELY IN RELATION TO SERVANTS ENGAGED UNDER THE SO-CALLED ' BRUSSELS CONTRACTS ' BUT, IN CERTAIN RESPECTS, ALSO FOR ESTABLISHED OFFICIALS AND OTHER SERVANTS ENGAGED UNDER THE OLD ECSC PROVISIONS .

ONE OF THESE COMMON STANDARDS SECURES FOR ALL SERVANTS OF THE EUROPEAN COMMUNITIES ESTABLISHED UNDER THIS SCHEME RECOGNITION OF THE POSITION ACCORDED THEM PRIOR TO THE ENTRY INTO FORCE OF THE REGULATIONS ( EXCEPT IN THE PARTICULAR CASE MENTIONED BY THE SECOND PARAGRAPH OF THAT ARTICLE ); THIS WILL BE ACCOMPLISHED BY MORE OR LESS AUTOMATICALLY TRANSPOSING THE GRADE AND STEP PREVIOUSLY ACCORDED TO THEM, WHETHER EXPRESSLY OR BY IMPLICATION, INTO THE TABLE REFERRED TO IN ARTICLE 66 OF THE REGULATIONS .

BEFORE THE PRESENT REGULATIONS ENTERED INTO FORCE, SERVANTS ENGAGED UNDER THE SO-CALLED ' BRUSSELS CONTRACTS ' COULD NOT, IN THE ABSENCE OF ANY REGULATIONS GOVERNING THEIR POSITION, BE ALLOCATED A GRADE AND STEP EXCEPT BY ANALOGY WITH THE SYSTEM PREVAILING IN THE ECSC .

CONSEQUENTLY IT IS QUITE CORRECT TO MAINTAIN THAT THE POSITION OF SUCH SERVANTS IS COVERED BY THE PROVISION IN ARTICLE 102 WHICH REFERS TO GRADES AND STEPS ' IMPLIEDLY ' ACCORDED, THAT IS TO SAY, THE GRADE AND STEP ACCORDED BY IMPLICATION BY ANALOGY WITH THE ECSC RULES . IN FACT, THIS PROVISION REFERS ONLY TO THE PREVIOUS GRADE AND STEP, AS FAR AS ESTABLISHMENT OF OFFICIALS IS CONCERNED .

WHEN CARRYING OUT THE PROCESS OF ESTABLISHMENT OF OFFICIALS PROVIDED FOR BY ARTICLE 102, THE ADMINISTRATION IS NOT BOUND TO TAKE INTO ACCOUNT, IN THIS FIRST STAGE OF INTEGRATING SERVANTS INTO THE SCHEME SET UP BY THE STAFF REGULATIONS, ANY POSSIBLE DIFFERENCES BETWEEN THE GRADE ATTRIBUTED BY THIS MEANS TO EACH SERVANT AND THE GRADE WHICH PROPERLY CORRESPONDS TO HIS DUTIES ACCORDING TO ANNEX I TO THE REGULATIONS AND THE DEFINITIONS REFERRED TO IN ARTICLE 5(4 ).

THE DECISION GIVING EFFECT TO THE INTEGRATION IS THEREFORE NOT TO BE CRITICIZED ON THE GROUND THAT IT ESTABLISHED THE APPLICANTS IN THE SAME GRADE AND AT THE SAME STEP WHICH HAD BEEN ACCORDED TO THEM BY IMPLICATION BEFORE THE REGULATIONS ENTERED INTO FORCE .

IN THOSE CIRCUMSTANCES THE APPLICATIONS MUST BE DISMISSED IN SO FAR AS THEY SEEK, ON THE GROUND ABOVE-MENTIONED, THE ANNULMENT OF THE DECISIONS GIVING EFFECT TO THE INTEGRATION . HOWEVER, ANY SERVANT WHO, AFTER HE HAS BEEN BROUGHT UNDER THE STAFF REGULATIONS, HAS BEEN KEPT IN HIS PREVIOUS POST WHEN THAT POST OUGHT UNDER THE NEW REGULATIONS TO CARRY A GRADE HIGHER THAN THAT ACCORDED UNDER THE ARTICLE 102 PROCEDURE IS ENTITLED TO HAVE HIS POSITION REGULARIZED IN COMPLIANCE WITH THE PRINCIPLE OF CORRESPONDENCE BETWEEN GRADE AND DUTIES PRESCRIBED IN ANNEX I .

THE APPLICANTS REQUESTED, BY LETTERS DATED 2 AND 4 APRIL 1963, THAT THEY BE RECLASSIFIED IN GRADE A 3 WITH EFFECT FROM 1 JANUARY 1962 .

IT IS NOT DISPUTED IN THE PRESENT PROCEEDINGS THAT THE APPLICANTS EXERCISED THE DUTIES OF, AND WERE REGARDED AS, HEADS OF DIVISION . IN THE NEW STAFF REGULATIONS OF OFFICIALS OF THE THREE COMMUNITIES THESE DUTIES CORRESPOND ONLY TO THE ACTUAL CAREER BRACKET FOR HEADS OF DIVISION, WHICH IS COVERED EXCLUSIVELY BY GRADE A 3 . MOREOVER THE ADMINISTRATIVE UNITS CONTROLLED BY THE APPLICANTS WERE DESCRIBED AS ' DIVISIONS ' BY THE COMMISSION ITSELF .

THE FACT THAT THE COMMISSION FAILED TO DRAW UP WITHIN A REASONABLE TIME THE DESCRIPTION OF POSTS PROVIDED FOR IN ARTICLE 5 OF THE REGULATIONS IS NOT AN OBSTACLE TO PLACING THE APPLICANTS IN GRADE A 3 . IN FACT, ANNEX I, WHERE THE COUNCIL LAID DOWN GUIDELINES FOR THE DRAWING UP OF THIS DESCRIPTION, PROVIDED FROM THE VERY DATE ON WHICH THE REGULATIONS ENTERED INTO FORCE THAT HEADS OF DIVISION SHOULD BE CLASSIFIED IN GRADE A 3 .

CONSEQUENTLY, THE REGULATIONS UNDER WHICH THE APPLICANTS HAVE BEEN INTEGRATED CONFER ON THEM THE RIGHT TO BE CLASSIFIED IN GRADE A 3 IN ACCORDANCE WITH THEIR POSTS, AS FROM THE DATE OF ENTRY INTO FORCE OF THE REGULATIONS .

WHILE THE APPLICANT'S PRINCIPAL CONCLUSIONS ARE WELL-FOUNDED, THEIR REQUEST FOR DAMAGES IS NOT .

THE APPLICATIONS SHOULD BE REFERRED BACK TO THE COMMISSION FOR THE PURPOSE OF GIVING EFFECT TO THIS JUDGMENT .

THE DEFENDANT HAS BEEN UNSUCCESSFUL IN ITS PRINCIPAL SUBMISSIONS, AND SHOULD THEREFORE BE ORDERED TO BEAR THE COSTS OF THESE APPLICATIONS BY VIRTUE OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE .

THE COURT HAS BEEN ASKED TO GIVE A DECESION AS TO COSTS IN CASES 98 AND 99/63, AND IN THE INTERLOCUTORY PROCEEDINGS FOR THE ADOPTION OF AN INTERIM MEASURE IN THOSE CASES BETWEEN THE SAME PARTIES, BY ORDERS OF THE SECOND CHAMBER OF 12 MARCH 1964 . JEAN REYNIER AND PIERO ERBA DISCONTINUED THEIR APPLICATIONS IN THOSE CASES . THE DISCONTINUANCE WAS JUSTIFIED BY THE CONDUCT OF THE DEFENDANT WHICH STATED AT THE HEARING ON 11 NOVEMBER 1963, IN WHICH THE PARTIES TO THE APPLICATION FOR THE SUSPENSION OF CERTAIN MEASURES WERE HEARD, THAT IT WOULD RECLASSIFY THE APPLICANTS WITH EFFECT FROM 1 JANUARY 1962 IN GRADE A 3 IF THEY WERE SUCCESSFUL IN THEIR APPLICATIONS 79 AND 82/63 . HAD THIS DECLARATION BEEN MADE EARLIER IT WOULD HAVE MADE THE PROCEEDINGS IN CASES 98 AND 99/63 UNNECESSARY . THE COSTS IN CASES 98/63 AND 99/63, AND CASES 98/63 R AND 99/63 R, MUST ACCORDINGLY BE BORNE BY THE DEFENDANT PURSUANT TO ARTICLE 69 ( 4 ) OF THE RULES OF PROCEDURE .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF 21 MAY 1963 WHEREBY THE COMMISSION REFUSED TO RECLASSIFY THE APPLICANTS REYNIER ( CASE 79/63 ) AND ERBA ( CASE 82/63 );

2 . REFERS THE CASES BACK TO THE COMMISSION;

3 . ORDERS THAT THE COSTS OF THESE APPLICATIONS AND THOSE OF CASES 98 AND 99/63, INCLUDING THE COSTS OF THE APPLICATIONS FOR THE ADOPTION OF AN INTERIM MEASURE, BE BORNE BY THE COMMISSION .