1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 29 JULY 1980 VOLKER BLASIG , AN OFFICIAL OF THE COMMISSION , BROUGHT AN ACTION FOR AN ORDER THAT THE COMMISSION PLACE HIM IN GRADE B 1 WITH RETROACTIVE EFFECT FROM 1 OCTOBER 1974 AND PAY HIM THE DIFFERENCE , WITH INTEREST , BETWEEN THE SALARY ACTUALLY PAID AND THAT WHICH HE WOULD HAVE RECEIVED AS AN OFFICIAL IN GRADE B 1 .
2 THE APPLICANT COMMENCED HIS DUTIES IN 1974 AFTER TAKING PART IN AN OPEN COMPETITION ( COMPETITION NO COM/B/106 ) FOR THE POST OF SENIOR ADMINISTRATIVE ASSISTANT IN GRADES 3 AND 2 OF CATEGORY B . IN THE COMPETITION NOTICE THE DUTIES WERE DESCRIBED AS THOSE OF AN : ' ' EXECUTIVE OFFICIAL WHO , ON THE BASIS OF GENERAL INSTRUCTIONS , CARRIES OUT DIFFICULT AND COMPLEX TASKS , IN PARTICULAR THE PREPARATION AND REFINEMENT OF PROGRAMMES FOR THIRD-GENERATION COMPUTERS . ' ' AS A RESULT OF THE COMPETITION THE COMMISSION OFFERED THE APPLICANT ' ' THE POST OF SENIOR ADMINISTRATIVE ASSISTANT ( PROGRAMMER ) ' ' IN DIRECTORATE-GENERAL IX ' ' AS A PROBATIONARY OFFICIAL IN GRADE B 3 ' ' . THE APPLICANT ACCEPTED THE OFFER AND CONFIRMED THAT HE WOULD TAKE UP HIS EMPLOYMENT ON 1 OCTOBER 1974 . THE DECISION APPOINTING THE APPLICANT , WHICH WAS ADOPTED ON 18 OCTOBER 1974 , PLACED HIM AS A SENIOR ADMINISTRATIVE ASSISTANT IN THE FIRST STEP OF GRADE B 3 .
3 ON 6 DECEMBER 1974 THE APPLICANT LODGED A COMPLAINT AGAINST THAT DECISION ALLEGING THAT IN VIEW OF HIS EXPERIENCE WITH THIRD-GENERATION COMPUTERS HE OUGHT TO BE PLACED IN THE FIRST STEP OF GRADE B 2 OR AT LEAST IN THE THIRD STEP OF GRADE B 3 . THAT COMPLAINT WAS REJECTED BY A DECISION OF THE COMMISSION OF 2 JUNE 1975 WHICH WAS FOUNDED ON THE PRINCIPLE THAT THE APPOINTING AUTHORITY APPOINTS EVERY SUCCESSFUL APPLICANT AS A PROBATIONARY OFFICIAL IN THE BASIC GRADE OF THE BASIC CAREER BRACKET OF HIS CATEGORY .
4 AT THE END OF HIS PROBATIONARY PERIOD THE APPLICANT BECAME AN ESTABLISHED OFFICIAL IN HIS POST WITH EFFECT FROM 1 JULY 1975 .
5 ON 20 DECEMBER 1979 THE APPLICANT LODGED A FURTHER COMPLAINT AND SOUGHT TO BE PLACED IN GRADE B 1 . BY A LETTER DATED 24 APRIL 1980 MR TUGENDHAT , A MEMBER OF THE COMMISSION , INFORMED THE APPLICANT THAT THE COMMISSION HAD REJECTED THE COMPLAINT ON THE GROUND THAT THE PLACING IN THE FIRST STEP OF GRADE B 3 HAD BECOME UNASSAILABLE AFTER THE EXPIRY OF THE PERIOD FOR BRINGING AN ACTION PURSUANT TO THE REJECTION OF THE COMPLAINT MADE AGAINST THAT GRADING IN 1974 . FURTHER , THE CONTESTED GRADING WAS IN FACT JUSTIFIED IN VIEW OF THE NATURE OF THE COMPETITION ON THE BASIS OF WHICH THE APPLICANT HAD BEEN ENGAGED . THE PRESENT ACTION IS ESSENTIALLY DIRECTED AGAINST THAT DECISION TO REJECT THE COMPLAINT .
6 THE COMMISSION SUBMITS THAT THE ACTION WAS BROUGHT AFTER THE EXPIRY OF THE PERIOD LAID DOWN IN ARTICLE 91 ( 3 ) OF THE STAFF REGULATIONS AND IS THEREFORE INADMISSIBLE .
7 THE APPLICANT , WHO MAINTAINS THAT THE DUTIES WHICH HE PERFORMS ARE THOSE OF A PROGRAMMER AND NOT OF A SENIOR ADMINISTRATIVE ASSISTANT AND THAT THEY THEREFORE CORRESPOND TO A POST IN GRADE B 1 , MAKES TWO SUBMISSIONS TO SHOW THAT HIS APPLICATION IS NOT TIME-BARRED . IN THE FIRST PLACE , THE PURPOSE OF THE COMPLAINT OF 1979 WAS DIFFERENT FROM THE PURPOSE OF THE COMPLAINT MADE IN 1974 WHICH SOUGHT ONLY A HIGHER GRADING IN THE SAME CAREER BRACKET ( B 3/B 2 ); THE COMMISSION ' S DECISION REJECTING THE COMPLAINT OF 1979 SHOULD IN THOSE CIRCUMSTANCES NOT BE REGARDED AS BEING OF A CONFIRMATORY NATURE . SECONDLY , THE UNLAWFULNESS OF HIS BEING PLACED IN A GRADE OTHER THAN B 1 BECAME APPARENT TO HIM ONLY IN OCTOBER 1979 AFTER HE RECEIVED THE ' ' GUIDE TO STAFF REPORTS ' ' COMPILED BY THE COMMISSION PURSUANT TO ARTICLE 43 OF THE STAFF REGULATIONS ; IT INCLUDED IN THE DESCRIPTIVE TABLE OF BASIC POSTS A REFERENCE TO ' ' PROGRAMMER ' ' IN THE COLUMN RELATING TO GRADE B 1 AND A REFERENCE TO ' ' ASSISTANT PROGRAMMER ' ' IN THE COLUMN RELATING TO GRADES B 2 AND B 3 .
8 IT IS RELEVANT TO OBSERVE FIRST OF ALL THAT THE MEASURE ADVERSELY AFFECTING THE APPLICANT WHICH IS THE SUBJECT OF THE ACTION IS THE APPOINTING AUTHORITY ' S DECISION OF 18 OCTOBER 1974 PLACING HIM IN GRADE B 3 . SINCE THE COMMISSION REJECTED A COMPLAINT WHICH WAS LODGED AGAINST THAT DECISION WITHIN THE REQUISITE PERIOD IT WAS NOT REQUIRED , UNLESS IMPORTANT NEW FACTS AROSE , TO CONSIDER A FRESH COMPLAINT AGAINST THE SAME DECISION .
9 THE FIRST SUBMISSION MUST THEREFORE BE REJECTED AND IT IS NECESSARY TO CONSIDER WHETHER THE CIRCUMSTANCES CITED IN THE SECOND SUBMISSION MAY BE REGARDED AS A NEW ACT CAPABLE OF STARTING THE PERIOD OF LIMITATION TO RUN AFRESH .
10 THE COMMISSION OBSERVES IN THAT REGARD THAT THE DESCRIPTION OF DUTIES RELATING TO POSTS IN CATEGORY B GIVEN IN THE 1979 GUIDE TO STAFF REPORTS IS IDENTICAL TO THAT CONTAINED IN THE 1973 GUIDE TO STAFF REPORTS . THE LATTER WAS PUBLISHED IN THE 1973 STAFF COURIER ( NO 272 OF 4 SEPTEMBER 1973 ) AND WAS AVAILABLE TO ALL INTERESTED OFFICIALS AS FROM THE DATE OF ITS PUBLICATION .
11 THE APPLICANT DOES NOT DENY THAT THE DESCRIPTION OF THE BASIC POSTS HAD ALREADY BEEN PUBLISHED IN 1973 . HE POINTS OUT HOWEVER THAT AT THAT TIME HE HAD NOT YET TAKEN UP EMPLOYMENT WITH THE COMMISSION . IN HIS VIEW HE WAS NOT BOUND TO CHECK THE CONTENT OF PUBLICATIONS , ISSUED PRIOR TO HIS TAKING UP EMPLOYMENT , WHICH MIGHT CONCERN HIM . IT IS FOR THE APPOINTING AUTHORITY TO SUPPLY OFFICIALS WITH ALL PUBLICATIONS RELATIVE TO THE CORRESPONDENCE BETWEEN THEIR DUTIES AND THEIR GRADE ; THE APPLICANT HOWEVER WAS NOT NOTIFIED OF THE GUIDE TO STAFF REPORTS UNTIL HE RECEIVED A NOTE FROM THE COMMISSION DATED 9 OCTOBER 1979 .
12 THE ESSENCE OF THE APPLICANT ' S ARGUMENT , THEREFORE , IS TO SUBMIT THAT THE FACT THAT THE EXISTENCE AND APPLICATION OF THE DESCRIPTION OF THE BASIC POSTS ANNEXED TO THE GUIDE TO STAFF REPORTS CAME TO HIS ATTENTION CONSTITUTES A NEW FACT CAPABLE OF STARTING THE PERIOD OF LIMITATION TO RUN AFRESH .
13 THAT ARGUMENT CANNOT BE ACCEPTED . THE PURPOSE OF THE GUIDE TO STAFF REPORTS IS TO PROVIDE GUIDE-LINES FOR SENIOR OFFICIALS RESPONSIBLE FOR PREPARING PERIODIC REPORTS PURSUANT TO ARTICLE 43 OF THE STAFF REGULATIONS . IT IS PUBLISHED IN ORDER TO INFORM THE OFFICIALS CONCERNED OF THE CRITERIA APPLICABLE UNDER THAT PROCEDURE . ACCORDINGLY , THE DESCRIPTION OF THE BASIC POSTS WHICH IT CONTAINS DOES NOT ENTITLE THE STAFF TO DEMAND APPOINTMENT IN A GIVEN GRADE OR A FORTIORI TO REQUIRE , AFTER APPOINTMENT IN A GIVEN GRADE , A HIGHER GRADE OUTSIDE THE NORMAL PROMOTION PROCEDURE .
14 ACCORDINGLY , THE APPLICATION IS INADMISSIBLE IN SO FAR AS IT ASKS FOR THE APPLICANT TO BE PLACED IN GRADE B 1 . IT FOLLOWS THAT THE APPLICATION FOR PAYMENT OF THE DIFFERENCE BETWEEN THE SALARY ACTUALLY RECEIVED AND THAT PAYABLE ON THE APPLICANT ' S RE-GRADING MUST FAIL .
15 THE ACTION MUST THEREFORE BE DISMISSED AS INADMISSIBLE IN ITS ENTIRETY .
16 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 THEREOF THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
