Contents
In Case 8/69THEODORUS MULDERS, an official of the Commission of the European Communities, residing in Uccle, 2 avenue Maréchal-Ney, represented by Marcel Slusny, Advocate at the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Andre Elvinger, 84 Grand'Rue,vCOMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Louis de la Fontaine, acting as Agent, with an address for service in Luxembourg at the offices of Émile Reuter, 4 boulevard Royal,THE COURT (First Chamber)composed of: R. Monaco, President of Chamber, A. M. Donner (Rapporteur) and J. Mertens de Wilmars, Judges,Advocate-General: K. RoemerRegistrar: A. Van Houttegives the following
Judgment
Issues of fact and of law
I —Summary of the facts
The facts on which the present proceedings are based may be summarized as follows:The applicant entered the service of the European Atomic Energy Community on 8 October 1958 as Head of Financial Services, and was appointed on 21 May 1961 by the Euratom Commission accounting officer for the Operational Budget, and on 19 December 1961 Accounting Officer for the Research Budget.On 6 March 1963 he was established in Grade A3 pursuant to Article 102 of the Staff Regulations, and was given the tide of Head of Division. In this post he was placed, as was the financial controller for the Commission, under the authority of the Director-General for Finance, although in his capacity as accounting officer he was answerable directly to the Euratom Commission.In a letter of 7 September 1966 the applicant submitted a request to the Commission on the basis of Article 90 of the Staff Regulations that he be appointed to Grade A2 with retroactive effect to 31 May 1961. By a letter of 12 December 1966 the Director-General for Administration of the EAEC informed the applicant that the Commission had reached the conclusion that the classification of the applicant's duties was in accordance with the provisions of the Staff Regulations.On 28 May 1968 the applicant was informed by a letter from the President of the Commission that the latter, as part of its re-organization of its departments, had decided on 21 May to employ him in the post of Head of the Division of Finance, Treasury and Accounts, being part of the Directorate for the Operational Budget and Finance, itself part of the Directorate-General for the Budget. He was kept in Grade A3, his superiors in the administrative hierarchy being classified respectively in Grades A2 and A1. At the same time a Directorate-General for Financial Control was created, and the official placed at the head of this was later designated financial controller.On 30 July 1968 the Commission decided by written procedure, a decision confirmed during its meeting of 2 to 6 December 1968, to appoint Mr Mulders accounting officer of the Commission, stating that in the performance of his duties he was to be directly responsible to the Commission.Without waiting for official notificatian of this decision the applicant submitted a complaint by letter of 14 October 1968 to the Commission requesting it to amend the said decision by altering his grading to correspond to the responsibilities given him under the Financial Regulation, and with the primary aim that the applicant should not be made subordinate by reason of unequal grading in a manner contrary to the autonomy required by the Financial Regulation. Since no reply was received to his complaint by 14 December 1968, the applicant (interpreting the silence as an implied decision of rejection under Article 91 of the Staff Regulations) submitted an application to the Court of Justice, dated 7 February 1969 and lodged at the Court Registry on 10 February 1969.
II—Conclusions of the parties
The applicant claims that the Court should:— declare that the applicant, an accounting officer with the Communities who exercises no other duties for them, must, in the same way as the financial controller, be placed under the direct and exclusive authority of the Commission and be, like him, on the same level as Directors-General having the powers of an authorizing officer;— declare that the decision of the Commission of 30 July 1968 appointing the applicant accounting officer in the Communities must be understood to amend accordingly the decision of 21 May whereby he was appointed Head of Division forming part of a Directorate itself part of a Directorate-General;— accordingly, declare that the applicant should be classified in Grade A1 with effect from 30 July 1968;— further to the last point, declare that the Commission must within two months from the date of the judgment to be delivered adjust the applicant's grade to correspond to his duties as accounting officer and annul the implied decision whereby on 14 December 1968 it rejected the complaint on this subject made to it by the applicant.The defendant contends that the Court should:— declare the application unfounded;— order the applicant to pay the costs in accordance with the relevant provisions.
III —Submissions and arguments of the parties
The submissions and arguments of the parties may be summarized as follows:
A —Admissibility
In its statement of defence, the defendant considers that the application is only admissible as regards the decision 30 July 1968 naming the applicant accounting officer of the Commission. An application against the decision of 21 May 1968 appointing him to a post in Grade A3 is inadmissible because it is out of time.The applicant states in his reply that the subject-matter of the application is neither the decision of 21 May nor that of 30 July, but the implied rejection by the Commission of the appeal through official channels of 14 October 1968 seeking a revision of the decision of 21 May on the basis of that of 30 July, the latter introducing a new element of substance with regard to the first.In the rejoinder, the defendant asserts that in the context of the present proceedings the Court has jurisdiction only to examine the question whether the appointment of the applicant as accounting officer of the Commission amounts to conferring on him new duties giving him a right to be re-classified in Grade Al.
B —The substance of the case
After setting out the respective duties of the accounting officer, the authorizing officer and the financial controller within the Communities' Administration, the applicant relies on various provisions in the Financial Regulation (Articles 22, 43, 49 and 51) in support of his claim that the officials must be independent of one another and that, in particular, the accounting officer must be directly answerable to the Commission without the interposition of superiors in the administration. In this respect he refers to the report of the Audit Board for the financial year 1963 and the reply from the EAEC Commission to the report. Despite the fact that at the time of the decision of 30 July 1968 it was expressly acknowledged that the applicant was directly under the authority of the Commission in the exercise of his duties, no alteration was made either to the decision of 21 May 1968 which placed him under the authority of a Director himself subject to a Director-General, or to the Grade A3 classificaton previously given to him. In the case of the financial controller, on the other hand, the need to make him independent of those Directors-General who were authorizing officers was taken into account, namely by making his grade equal to theirs.In its statement of defence, the defendant Commission remarks that it would be difficult to ensure equality of grade for the authorizing officers, the financial controller and the accounting officer because it is itself the chief authorizing officer. The powers of an authorizing officer accorded to certain officials, in particular Directors-General, are only derivative and are based on a delegation of powers on the part of the Commission. The grade in which an accounting officer is placed must be determined by the nature of his duties.as to the comparison between the position of the accounting officer and that of the financial controller, it is difficult to compare their duties and responsibilities, as will be seen by an examination of Articles 30 and 43 of the Financial Regulation. This difference is confirmed by the grades given by the High Authority and the EEC and EAEC Commissions to their respective accounting officers and financial controllers.The case-law of the Court (Case 28/64), moreover, reveals the weakness of the applicant's claims.As for the accounting officer's financial liability, to which the applicant refers, the defendant replies that this very liability was the reason behind the classification of accounting officers in Grade A3, the accounting officers in other institutions being classified in Grade B1.In a more general way the defendant contends that its powers and responsibilities in relation to the organization of its departments are not subject to any particular restrictions as regards the Financial Control Services and accounts, and concludes from this that its decisions on those matters can only be challenged on the ground of misuse of powers.Should the Court judge, however, that the appointment of an official to the post of accounting officer of the Commission gives him a right to a Grade A1 post, this conclusion would mean that the applicant's appointment was illegal because it was contrary to the appropriate procedures in the Staff Regulations (Articles 29 and 45).The applicant replies, referring to Articles 31 and 44 of the Financial Regulation, that the duties of the financial controller and the accounting officer are exercisable in the same way as those of the authorizing officer, by virtue of the delegation of powers by the Commission. In laying down the principle of the separation of authorizing officers and accounting officers from each other Article 22 of the Financial Regulation could only have meant the separation of Directors-General with the powers of authorizing officers from the accounting officer in office. The decision of the Commission appointing the applicant accounting officer without making him independent of the Directorate-General to which he belonged must therefore be annulled on the ground of excess or misuse of powers.As far as the comparison with the position of the financial controller is concerned the applicant claims in particular:1. That whilst Article 47 of the Financial Regulation makes financial controllers liable only to disciplinary action, accounting officers are liable both to disciplinary action and to payment of compensation under Article 49 of the same regulation;2. That the argument based on the respective grades given to accounting officers and financial controllers in the High Authority and the EEC and the EAEC Commissions misses the point because the duties exercised in the three administrations by the accounting officer and by the financial controller are very different; but the duties of the respective accounting officers were in any case far less important than the duties of the accounting officer in the single Commission.The judgment of the Court in Case 28/64 is, on the other hand, not relevant to the present case since the duties of a financial controller in the Council are not comparable to those of an accounting officer in the Commission.According to the defendant the principle of the separation of authorizing officers and the accounting officer has been maintained in the present organization, since the applicant is not subject to any directions from his superiors in the performance of his duties as accounting officer. The judgment in Case 28/64 is in any case perfectly relevant, because the provisions in the Financial Regulation concerning financial controllers and accounting officers are applicable as much to the budget of the Commission as to that of the Council.In addition the defendant refers again to Article 24 of the Financial Regulation to demonstrate the fundamental difference which exists between the liability of financial controllers and that of accounting officers.Lastly, it is not true to say that the duties of the accounting officer and of the financial controller were very different in the three Communities. In fact after 1965 the provisions in the Financial Regulations concerning accounting officers and financial controllers in the three executives were identical.During the oral proceedings the defendant also contested the claim that the decision of 30 July 1968 constituted a new element of substance, since this decision did not alter the nature of the duties exercised by the applicant.On the other hand, it stated that should the Court decide that an appointment as accounting officer carries with it a right to be classified in Grade Al, this would not be sufficient to place the applicant in that grade: on the contrary, the Commission would be bound to initiate the procedure laid down in Article 29 of the Staff Regulations.This was contested by the applicant, who claims that it is a well established principle of administrative law that the benefit of any re-assessment must be passed on to the person holding that post.
IV—Procedure
The written procedure followed the normal course.After hearing the report of the Judge-Rapporteur and the views of the Advocate-General the First Chamber of the Court decided to commence the oral proceedings without any preparatory inquiry.The oral submissions of the parties were presented at the hearing 30 October 1969.The Advocate-General delivered his opinion at the hearing on 12 November 1969.
Grounds of judgment
Admissibility of the application
The substance of the case
Costs
Operative part
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