The coming into force of an appointment with retroactive effect has been common practice until the Commission's decision of 26 May 1965, as the applicant is prepared to prove both by the evidence of Mr Bruns and by examples of retroactive appointments which occurred in 1965.

The Commission is wrong in basing its refusal on its decision of 26 May 1965 which, being subsequent to the vacancy notice of 4 March 1965, does not apply to the applicant.

The defendant s reply contests the allegation that retroactive appointments have previously been common practice. This has only happened in cases where these were delayed by the coming into force of the Staff Regulations of 1962, a fact from which the applicant himself benefited at the time.

In any event, a prior administrative practice, had it existed, could still only bind the appointing authority during the period when it applied and for as long as it was not expressly modified or discontinued.

In the absence of an established practice the right to retroactive treatment can only be based on a general regulatory measure on the part of the appointing authority and this was precisely the purpose of the decision of 26 May 1965 which applied to all promotion and appointment procedures pending at that time and in particular that of the applicant, which took place in the main after the month of May 1965.

According to the defendant the applicant does not comply with the conditions which are in fact laid down by the said decision.

In the first place he did not perform in advance of promotion duties corresponding to his present post.

This results mainly from the fact that the applicant's present post could only have been created and therefore occupied at the beginning of 1965, after the grant of the budgetary A 5 posts in the 1964 supplementary budget, which was only adopted on 14 November 1964.

This also follows from the fact that the applicant's new post falls within the career bracket A 5-A 4, whilst the previous post came within career bracket A 7-A 6; a comparison of the vacancy notices relating to the two posts successively occupied by the applicant shows that they relate to separate posts involving different duties. Finally, the fact that after the applicant had left, his previous post was filled by a new official contradicts his statement.

In the second place even if—quod non— the applicant had actually performed the duties in question in advance does not in any event comply with the conditions that the appointing authority should have officially authorized the performance of his duties in advance. This requirement, even though it is not specifically formulated in the decision of 26 May 1965, is self-evident. If it were sufficient to have performed the duties of a higher grade for an official to be subsequently able to benefit from retroactive treatment, the Commission would be deprived of its sole power of creating and organizing departments and posts which clearly emerges from the power to make appointments, for the Directors General might thus force the Commission to effect certain appointments.

In the present case the appointing authority did not give the necessary authorization and moreover no application to this effect had been submitted to it.

The applicant replies that he fulfilled the conditions to which the decision of 26 May 1965 renders a retroactive appointment subject, in that he has effectively performed the duties attaching to the post and that he was instructed to carry out those duties.

The decision in question lays down no other condition and certainly does not require that the appointing authority should itself have authorized that the duties of the higher grade be performed in advance; this would amount to an indefensible idea for it would imply that an official entrusted with new duties could not execute the orders of his superiors before the appointing authority had called on him in writing to do so.

As regards the first condition the applicant asserts that he was actually performing the duties attaching to his present post from the beginning of 1964.

In his view these new responsibilities derived from the adoption of Regulation No 13/64 of 5 February 1964 on the gradual establishment of a common organization of the market in the milk and milk products sector in 1964. It was the adoption of this regulation which induced the Council in its deliberations of 4 and 5 February 1964 to create various additional posts, including that to which he was promoted. Whilst the budget was only approved on 14 November 1964, it nevertheless applied by virtue of Article 203 of the EEC Treaty to the whole of 1964 and the posts must be treated as vacant from 1 January 1964.

Since 1964, the applicant has been instructed to carry out duties different from those which he was previously performing and which had been the subject of Vacancy Notice No 303 of 1962. In 1962 his duties had been limited to preparing and putting into operation the regulation on the organization of the market in milk products, whilst as from the coming into force of this regulation he had been instructed to ensure its implementation.

The applicant further states that he is not aware of anyone else who could carry out these new duties. A note on the part of his Director, confirmed by a number of statements by witnesses as well as by his personal file and exchanges of correspondence prove this assertion.

Finally, he notes that he had from the outset requested the retroactive application of his appointment which is proved, inter alia, by the fact thai the note of 17 June 1966, under cover of which the letter appointing the applicant was sent to Mr Amiet, refers to his previous misgivings.

As regards the second condition, the applicant states that he had been instructed to carry out these new duties as is shown by a note of 1 December 1965 in which the Director, Mr Amiet, states that for two years the applicant was performing the duties corresponding to the post for which he had applied. Further evidence is available to prove this to the full.

The applicant concludes that in basing its refusal on the argument that the conditions required for retroactive appointment were not present, the defendant has taken a decision based on incorrect grounds.

The defendant replies that since the express authorization of the appointing authority is required, the suggested proofs and evidence cannot be relevant for they would merely go to show that the applicant performed his duties in advance of promotion with the agreement of his superiors.

The contrary decision taken in the case of the applicant establishes a discrimination against him as compared with other officials and violates the principle of equality of treatment.

The defendant denies that in cases similar to those of the applicant retroactive appointment has been granted to the officials involved. There has therefore been no discrimination.

The applicant replies by stating that he can prove the contrary and refers by way of example to Vacancy No 2108 (Staff Bulletin No 132 of 22 March 1965) the holder of which was retroactively appointed in circumstances similar to his.