Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . The hearing in this case, which took place on 19 March, concerned solely the question whether the action brought by Mr Grumbach against the Commission for failure to adopt a decision under Article 7 ( 2 ) of the Staff Regulations of Officials is admissible . My opinion here is restricted to that question .
A - Facts
2 . It is sufficient at this stage to recall that from 2 February 1981 to 31 May 1983 the applicant, who was at that time an official in Grade A*4, was a member of the Commission' s delegation in Geneva responsible for questions dealt with by Directorate-General VIII ( to which the applicant belonged ). As a result of a judgment of the Court delivered on 9 December 1982 in an action brought by his predecessor ( Case 191/81),*(1 ) Mr Grumbach apparently decided that he had been entrusted with duties attaching to a post in Grade A*3 .
3 . He thereupon unsuccessfully requested the Commission to classify him in Grade A*3 . His request was rejected on 14 June 1983 and a complaint against that decision was rejected by decision of 16 January 1984, which categorically denied that the applicant had been entrusted with duties attaching to a post in Grade A*3 . The arguments put forward by the applicant were refuted in detail . The decision adopted by the competent Member of the Commission on 16 January 1984 dealt with the applicant' s assertion concerning his predecessor' s position, his own position as a member of the Commission' s delegation in Geneva, his duties and his diplomatic rank and concluded that the Commission did not share the plaintiff' s opinion that his duties indisputably corresponded to a post in Grade A*3 . The decision also stated that according to the Court' s case-law, even if it was accepted that Mr Grumbach had performed duties pertaining to a higher grade he had no right to be classified in that grade . The plaintiff did not contest that decision .
4 . A year later, on 28 February 1985, the plaintiff requested that a decision should be adopted recognizing that from 2 February 1981 until 31 May 1983 he had temporarily performed the duties of a post in Grade A*3 and granting him the differential allowance provided for in such a case by Article 7 ( 2 ) of the Staff Regulations of Officials . This request was also refused . His complaint of 14 June 1985 was rejected by a decision of 4 December 1985, which expressly stated that the object of the complaint and the observations of the applicant were essentially the same as those in the first complaint and therefore the decision of 16 January 1984 could only be confirmed . The competent Member of the Commission expressly stated that in those circumstances an application to the Court might be declared inadmissible . Nevertheless, on 25 February 1986 the applicant brought before the Court of Justice the action with which we are now concerned .
B - Discussion
5 . In relation to the admissibility of the application there are obviously no problems concerning compliance with the prescribed periods, as regards the actual dates of the request, its refusal, the submission of a complaint and its express rejection ( after four months, but none the less within the period prescribed for an appeal, which started to run from the date of the implied rejection - see Article 91 of the Staff Regulations of Officials ). It is unnecessary to set out the details here .
6 . For purposes of examining the admissibility of the application it is important, however, that this case concerns a refusal to adopt a decision which would benefit the applicant, that is to say, a claim alleging a positive obligation on the part of the administration . It is also important that in the procedure set out above ( which sought a change in classification ) it was stated in an uncontested decision on a complaint that in Geneva the applicant had not performed duties attaching to a post in Grade A*3 . The decision of 16 January 1984 is quite clearly based on that finding and not on the additional point that even if an official performs duties higher than his grade he has no right to promotion .
7 . That has an effect as regards the admissibility of the action, as I shall now demonstrate .
8 . 1 . In the first place, as regards the second point referred to above, I am not certain whether one can go so far as to say that there was a binding decision to the effect that the applicant had not performed duties attaching to a post in Grade A*3, with the result that this aspect can no longer be contested in a further procedure concerning Article 7 ( 2 ) of the Staff Regulations . It could be said that it is with regard to the objective pursued, or the right relied upon, that the decision is binding; however, the two procedures are clearly not identical ( since the first concerned a change of classification and the second concerns exclusively the application of Article 7 ( 2 ) of the Staff Regulations - the award of a differential allowance to an official called upon temporarily to occupy a higher post ).
9 . It might, however, be thought - precisely because in the decision on the first complaint there was an express finding concerning the duties performed by the applicant, which are also of importance for the purposes of Article 7 ( 2 ) of the Staff Regulations - that there was an implied decision to the effect that Article 7 ( 2 ) was also inapplicable . That would mean that the applicant ought at once to have brought an action before the Court claiming that Article 7 ( 2 ) should be applied . Since the appointing authority' s position with regard to the conditions laid down in Article 7 ( 2 ) was clear from January 1984, it does not seem possible to reopen this issue by means of a request submitted subsequently and to bring it before the Court in February 1986 after the preliminary procedure has been followed for a second time .
10 . 2 . If that is not sufficient to dispose of the matter, the judgment of the Court in a case involving similar facts gives rise to a conclusion which is different but leads to the same result .
11 . I am thinking of the judgment in Case 59/70,*(2 ) in proceedings brought under Article 35 of the ECSC Treaty ( which was also, therefore, a claim alleging a positive obligation ). I need mention only the following facts : the French Government granted low-interest loans to the French steel industry and informed the High Authority of its intention to do so in late 1966 . The High Authority came to the conclusion that there were no grounds for applying Article 4 ( c ) ( prohibiting subsidies ) or for making a recommendation under Article 67 of the ECSC Treaty, and informed the French Government and the other Member States accordingly in December 1968 . The Netherlands Government did not share the view of the High Authority . It therefore in June 1970 requested the High Authority to adopt a decision under Article 88 of the ECSC Treaty holding that the French Government had infringed the Treaty . After the implied rejection of that request ( which is deemed to have been given after two months have elapsed ), the Netherlands Government brought an action before the Court of Justice in October 1970 . The action was dismissed as inadmissible . In the grounds for its decision the Court had to acknowledge that the Treaty did not prescribe any time-limit for raising the matter with the High Authority under Article 35 of the ECSC Treaty . However, it inferred from the general scheme of Articles 33 and 35 of the ECSC Treaty and from the principles of legal certainty and of continuity of Community action that the submission of a request to the High Authority could not be delayed indefinitely but must take place within a reasonable period - especially once it was clear that the Commission had decided to take no action . Because the Netherlands Government had failed to observe that requirement and had not brought the matter before the High Authority until 18 months after the High Authority' s position had become clear, the action was held to be out of time .
12 . I take the view that it is entirely justified to extend these principles to an action for failure to act under the Staff Regulations, where the interests of sound administration require that any problems which arise should not be left unsettled for too long .
13 . In this case we must start from the proposition that the applicant had reason to take action in connection with the problem raised by him from the date on which the Court gave judgment in Case 191/81, that is to say, 9 December 1982 . He did so within a reasonable period, in so far as his request for reclassification was concerned . When his request was unsuccessful and the question arose as to whether he did not at least have a claim under Article 7 ( 2 ) of the Staff Regulations, he should have acted as soon as it became apparent that the Commission clearly considered that the conditions prescribed by that article ( the performance of duties attaching to a post in Grade A*3 ) were not satisfied . The applicant certainly should not merely have left matters as they were for another year . Thus even if it is not considered that he should have brought an action on the basis of the decision ( of 16 January 1984 ) on the first complaint, he should at least have submitted a request to the Commission seeking the application of Article 7 ( 2 ) of the Staff Regulations within a reasonable period after 16 January 1984 . In my view the request, which was not submitted until February 1985 and which then - after a further procedure - was not brought before the Court until 1986, more than three years after the material facts occurred and more than four and a half years after the right to a differential allowance allegedly arose, does not satisfy that requirement .
14 . I therefore consider that there can at least be said to have been an unreasonable delay in bringing the action and that it must therefore be considered inadmissible ( as was clearly stated by the Commission in its decision of 4 December 1985 ).
C - Conclusion
15 . Consequently, I propose that the Court should declare the action inadmissible and, as regards costs, would only suggest that an order should be made in accordance with Article 70 of the Rules of Procedure .
(*) Translated from the German .
( 1 ) Judgment of 9 December 1982 in Case 191/81 Onno Plug v Commission of the European Communities (( 1982 )) ECR 4229 .
( 2 ) Judgment of 6 July 1971 in Case 59/70 Netherlands v Commission (( 1971 )) ECR 639 .
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