The facts and arguments advanced by the parties in the course of the written procedure may be summarized as follows:
<TI><NP><NO.P>I —</NO.P><TXT>Facts</TXT></NP></TI>1.Article 45 (2) of the Staff Regulations of Officials (hereinafter referred to as the Staff Regulations) makes promotion from one category to another conditional on a competition.An exception is provided for in the second paragraph of Article 98 of the Staff Regulations in respect of officials covered by Article 92, that is to say officials who occupy posts in the field of nuclear science calling for scientific or technical qualifications and who are paid from appropriations in the research and investment budget.
2.The applicant entered the service of the Commission of the EAEC in August 1960 as a laboratory technician. As from September 1961 his place of employment was the Joint Nuclear Research Centre at Ispra. In January 1962 he was established as an official in Grade B 4 and in January 1966 he was promoted to Grade B 3.During his employment at the Joint Nuclear Research Centre at Ispra the applicant was paid from appropriations in the research and investment budget
From 1966 to 1969 the applicant was on leave on personal grounds during which time he studied at the university of Birmingham where he graduated as a doctor of philosophy (electronic and electrical engineering).
In the absence on the expiration of his leave of a vacant post corresponding to his qualifications he was reintegrated only as from August 1973 in a post as senior administrative assistant with the Directorate-General for Energy and Euratom safeguards in Luxembourg.
In this post the applicant was paid from appropriations in the operational budget.
3.On 16 December 1974 the Commission published in the Staff Courier under the second paragraph of Article 98 of the Staff Regulations procedures to be implemented prior to decisions on the transfer from Category B to Category A of officials in the scientific and technical services. These Procedures stated that they related only to officials covered by Article 92 of the Staff Regulations.The applicant while recognizing that his post was paid from appropriations in the operational budget and not in the research and investment budget, applied on 22 January 1975 for promotion to Category A using the form suggested in the annex to the above mentioned Procedures.
On 12 February 1975 the applicant submitted a request under Article 90 (1) of the Staff Regulations to the effect that the benefit of the Procedures be extended to him or alternatively that he be transferred to a post paid from appropriations in the research and investment budget
By letter dated 3 March 1975, registered on 6 March 1975, the applicant submitted a complaint under Article 90 (2) of the Staff Regulations directed against the Procedures.
On 18 June 1975 the applicant requested that his complaint of 3 March 1975 be re-registered.
On 30 June 1975 the Head of the Recruiting, Appointments and Promotions Division informed the applicant that it had not been possible for his application for promotion from Category B to Category A to be granted because he did not fulfil one of the requisite conditions, namely belonging to the scientific and technical service. However, his case, along with that of other officials in the same position, had been brought to the notice of the administration.
By letter dated 2 October 1975 the Commission replied expressly to the applicant's complaint of 3 March 1975. The Commission informed him in particular that it could not, on obvious grounds of natural justice, extend the application of the Procedures to officials other than those expressly covered by Article 92 without infringing the express provisions of Article 45 (2) of the Staff Regulations. Further the Commission said that it had organized general competitions giving access to Category A to candidates with a university degree in the field in question. In these circumstances the Commission considered that it had acted in accordance with the principle of equality of treatment
The letter from the Commission dated 2 October 1975 addressed to the applicant's place of work was not delivered to him until 16 October 1975 by reason of the fact that he was on leave from 29 September to 15 October 1975.
<TI><NP><NO.P>III —</NO.P><TXT>Submissions and arguments of the parties on the admissibility of the action</TXT></NP></TI>1.The defendant, the applicant with regard to the procedural issue, claims that in so far as the action asks for the annulment of the decision of the Commission of 2 October 1975 and of the Procedures, an implied decision rejecting the applicant's complaint of 3 March 1975, registered on 6 March 1975, took effect on 6 July 1975 in accordance with Article 90 (2) of the Staff Regulations. This implied decision should have been contested before 7 October 1975 in accordance with the second indent of Article 91 (3) of the Staff Regulations. The Commission's express rejection dated 2 October 1975 was not notified to its addressee until 16 October 1975 on his return from leave. It could not cause another period for bringing an action to start to run since its notification was subsequent to the expiration of the period within which the previous implied decision should have been contested (second indent of Article 91 (3) of the Staff Regulations).The action is likewise out of time on what appears to be the applicant's own argument, namely that the express decision of rejection takes effect on the date on which it is deemed to have been given, that is to say in the present case, on 2 October 1975. That decision should in accordance with Article 91 (3) of the Staff Regulations have been contested before the Court before 3 January 1976.
These conclusions were not invalidated by the fact that on 20 June 1975 the applicant considered that he should ask that his previous complaint, which had already been registered on 6 March 1975, should be re-registered.
2.In so far as the appeal asks for the annulment of the decisions taken under the Procedures other than that notified to the applicant on 30 June 1975, the defendant states that the very summary manner in which the applicant cites these decisions leads to doubt whether this head of claim complies with Article 38 (1) of the Rules of Procedure.Further it remains to be shown how the promotion to Category A of certain officials belonging to an occupational service to which the applicant does not constitutes an act adversely affecting him.
Finally, the contesting of these decisions for the first time before the Court constitutes an inadmissible claim, since no prior complaint was made through official channels in accordance with Article 90 (2) of the Staff Regulations.
More particularly as regards the decision notified to the applicant on 30 June 1975 the claim for its annulment would also seem to be inadmissible since it has not been preceded by any prior complaint through official channels.
3.In so far as the application claims that Article 92 of the Staff Regulations should be annulled or at least declared inapplicable, the defendant submits that this claim can be considered only if the appeal itself is admissible.Moreover the defendant cannot see what interest the applicant can have in arguing that Article 92 of the Staff Regulations is void or does not apply: if this article were found to be unlawful the result would be that Article 45 (2) of the Staff Regulations would then apply in respect of everyone including officials covered by Article 92.
4.The applicant, the defendant as regards the procedural issue, submits that as regards the annulment of the decision of the Commission of 2 October 1975 and the Procedures he agrees that the request of 20 June 1975 has no effect on the time-limits.With regard to the situation created by the express rejection by the administration within the three months provided for in the second indent of Article 91 (3) of the Staff Regulations and the notification after this period of this rejection, the applicant observes that the periods for taking action must in certain cases be capable of interruption or suspension.
The Court itself in its judgment in Case 44/71, Marcato [1972] ECR 427, caused the periods to start to run afresh having regard to the circumstances of the case and the fact that the applicant was entitled to think that he had acted properly.
The applicant then alleges that the Court in its judgment in Joined Cases 109/63 and 13/64, Muller [1964] ECR 663, took the view that the publication of a table defining the duties and powers attaching to each post may be regarded as an important new fact enabling an official affected by it to request the administration to retract a decision with regard to classification which can no longer be contested.
According to the applicant only notification causes new periods to run and the effect of the reply is suspended until it is notified.
Whatever the legal construction the Court considers it must adopt, whether it be the doctrine to be deduced from the judgement in Marcato, the judgment in Muller or the argument suggested by the applicant, the solution is to make the new period run from notification of the express rejection, that is to say in the present case, 16 October 1975.
Moreover the applicant's normal leave from 29 September to 15 October 1975 was not for the purpose of relaxation. The applicant remained at home in Luxembourg to prepare for the L/A competitions. Up to 6 October 1975 at least he was at home in Luxembourg and subsequently he could easily have been reached at the administrative offices where he was at the time of these competitions. Notification of the letter of 2 October 1975 was thus unduly delayed and the defendant should in this respect produce the applicant's leave record sheet where all the details are to be found.
Moreover to the three legal constructions mentioned above may be added that which consists in recognizing that periods are suspended when the end of a period falls during absence on normal leave or mission.
5.With regard to the annulment of the decisions taken in implementation of the Procedures, the applicant alleges that it has always been recognized that it is possible in the course of the procedure to give more details of one's claims and even, according to the case-law of the Court, formulate arguments and submissions amplifying previous arguments.The defendant could certainly not be mistaken as to the applicant's claims and submissions.
Further the appointments which are the ultimate result of the implementation of the Procedures should be annulled by the defendant of its own accord. The question of a prior complaint through official channels does not arise in respect of the necessary consequences of an annulment.
With regard to the argument that the contested measure does not adversely affect him, the applicant says that if the A posts which he can claim were filled, he would be frustrated even if the Procedures were ultimately annulled and the Court upheld him as regards the annulment of Article 92 of the Staff Regulations.
The arguments which the applicant has set out with regard to the general consequences of the annulment of the Procedures apply likewise with regard more particularly to the annulment of the decision notified to the applicant on 30 June 1975.
6.With regard to the annulment of Article 92 of the Staff Regulations the applicant is in complete agreement with the defendant in regarding the admissibility of the objection to it as depending on the admissibility of the application.If the inapplicability of Article 92 of the Staff Regulations were to result in Article 45 (2) of the Staff Regulations being left as the sole rule applicable to promotions the applicant would already obtain partial satisfaction by reason of the fact that all the officials covered by Article 92 of the Staff Regulations would thus be in the same position.
According to the applicant the inapplicability of Article 92, to the extent to which it is sought in the application, would abolish the discrimination contained in that article but would leave untouched the benefits provided for in Article 98 of the Staff Regulations in the interest of all officials of the Communities 'who occupy posts in the field of nuclear science calling for scientific or technical qualifications .
The applicant, represented by Marcel Slusny, and the Commission, represented by its Agent, Joseph Griesmar, made oral observations at the hearing on 6 May 1976.
At this hearing the parties adduced new factors summarized below:
The Commission states that the first indent of Article 90 (2) shows that a prior complaint through official channels may be directed against a measure of a general nature. Such a measure does not include measures having a legislative scope as for example the Procedures.
As to the applicant's leave record sheet produced by the administration, the Commission points out that there is no mention on this sheet of the applicant's address during his leave from 29 September to 15 October 1975.
The applicant states in particular in reply to the arguments of the Commission that in appears from the case-law of the Court that in the case of a procedural measure, that is to say a measure which involves the carrying out of a certain number of implementing measures, it is possible to attack the original measure.
During his leave from 29 September to 15 October 1975 the applicant had gone regularly to his office to collect his post. All who had seen him come and go knew very well that he was in Luxembourg and that he was coming into the office. In addition, a friend of the applicant confirmed in a letter that during the period in question he had been all the time at home in Luxembourg save for two days which he had spent in Brussels.