Algera and Others v Common Assembly: ECJ 12 Jul 1957

ECJ 1. The adoption of an administrative measure creates a presumption as to its validity. The illegality of an individual administrative measure entails its complete nullity only in exceptional cases. In principle, such an administrative measure can be set aside only by means of annulment or withdrawal, in so far as those measures are lawful.
2. A lawful administrative measure creating individual rights cannot in principle be unilaterally withdrawn. This rule applies in particular as regards the appointment of an official. No provision of the treaty lays down the conditions upon which an institution of the community can lawfully set aside an administrative measure creating individual rights, which was invalidly adopted. Therefore the court of justice must decide the question by reference to the rules acknowledged by the legislation, the learned writing and the case-law of the member states.
at all events, the withdrawal of an illegal measure of the kind stated is in principle permissible within a reasonable period of time.
3. The fact that an administrative measure is partially unlawful does not justify the withdrawal of the measure in its entirety, unless the effect of the withdrawal of the unlawful part is to deprive the measure of its justification.
4. If a servant has been validly established in a post in accordance with the staff regulations of the community, the unlawful withdrawal of that measure by the institution concerned constitutes a wrongful act or omission which entails an obligation on the part of that institution to make good the injury caused to the servant.
(treaty, first paragraph of article 40).
5. Contracts of employment concluded with servants before the staff regulations entered into force render them eligible for establishment within the meaning of the staff regulations.
that eligibility is particularly marked when the servant has been given an express, formal promise that he will be brought within the ambit of the staff regulations, especially when the entry into force of the latter is imminent
(convention on the transitional provisions, third paragraph of article 7).
6. Only the institutions of the community are competent to take decisions concerning establishment within the meaning of the staff regulations. The treaty does not provide for any participation by the committee of presidents
(treaty, fourth paragraph of article 6; article 78 (3)).
7. The second subparagraph of article 78 (3), which provides for the participation of the committee of presidents in certain administrative measures, creates an exception in relation to the principle of the independence (fourth paragraph of article 6 of the treaty) and the autonomy (first subparagraph of article 78 (3) of the treaty) of the institutions of the community; therefore it is to be strictly construed.
none the less, the committee must participate in the fixing of the salaries of servants
(article 78 (3)).
in reaching a decision on the form which this participation must take, the court of justice is not bound either by the point of view of the committee or by the provisions of the staff regulations. Quite apart from the question whether the institution concerned must obtain in advance the consent or merely the opinion of the committee, in any case a classification measure adopted without one or other of these formalities is unlawful.
(treaty, fourth paragraph of article 6; article 31; first and second subparagraphs of article 78 (3)).
8. The exception constituted by the second subparagraph of article 78 (3) to the principle of the participation of the committee of presidents in the determination of the salaries of servants relates only to those cases in which a provision of the treaty lays down a special method of determination as well as to the case where there is an implementing regulation adopted on the basis of such provision. Nor can the autonomy which the common assembly derives from its nature as a parliamentary institution be said to conflict with the power which article 78 confers on the committee of presidents. The functional autonomy of the assembly exists only within the limits of the tasks assigned to it by the treaty
(treaty, fourth paragraph of article 6; second subparagraph of article 78 (3)).
9. An order which is legal and valid in law, bringing a servant of the community within the ambit of the staff regulations and assigning him a definite grade and step of seniority, confers individual rights on the person concerned.
10. The applicant is not bound to cite the provisions on which he relies; it is enough if the application contains ‘the facts and submissions on which the application is based’ and ‘the conclusions’
(protocol on the statute of the court of justice, article 22; rules of procedure of the court, article 29 (3)).


C-7/56, [1957] EUECJ C-7/56




Updated: 20 May 2022; Ref: scu.131559