C-1/56
ECLI:EU:C:1956:15
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JUDGMENT OF 17.12.1956 — CASE 1/56
the wording ofa draft ofthe Staff Regulations it was not prejudging the date of the entry into force ofthe StaffRegulations, since that was dependent on steps to be taken by each of the four institutions. (Treaty, Art. 78 — Convention on the Transitional Provisions, third paragraph of Art. 7)
5. Servants of the Community — Period prior to the entry into force of the Staff Regula tions — Situation during such period
The fact that a servant's contract of employment was concluded before the entry into force of the Staff Regulations does not imply that the provisions of a draft of the Staff Regulations which have not yet entered into force, especially those providing for and re gulating the assignment of non-active status, are to be applied in their entirety in ad vance.
Nevertheless if an employee's post is abolished and he cannot be assigned to another post the administration must be guided by the draft of the Staff Regulations as far as the payment offair compensation for the damage suffered is concerned. (Convention on the Transitional Provisions, third paragraph of Art. 7)
6. Costs The question whether an action is unreasonable and vexatious and for this reason jus tifies an order that the applicant must pay the costs must be determined subjectively from the point of view of the applicant. (Rules of Procedure, Art. 61 — Rules of the Court concerning costs, second subpar agraph of Art. 2 (1) and Art. 5)
In Case 1/56
RENE BOURGAUX, assisted by Pierre Chareyre, Advocate at the Conseil d'Etat and the Cour de Cassation, Paris, and Henri Rolin, Advocate at the Cour d'Ap pel, Brussels, with an address for service in Luxembourg at the Chambers of G. Margue, 6 Rue Alphonse Munchen,
applicant,
V
THE COMMON ASSEMBLY OF THE EUROPEAN COAL AND STEEL COMMUNITY, re presented by its Secretary General, M. F. F. A. de Nerée tot Babberich, acting as Agent, assisted by Pierre Ansiaux, Advocate at the Cour de Cassation, Bel gium, and Jean Coutard, Advocate at the Conseil d'Etat and the Cour de Cas sation, Paris, with an address for service in Luxembourg at its offices, 19a, Rue Beaumont,
defendant,
Application, for the annulment of a decision of the Bureau of the Common As sembly and of an order of its President,
BOURGAUX v COMMON ASSEMBLY
THE COURT
composed of: M. Pilotti, President, J. Rueff and O. Riese (Presidents of Cham bers), P. J. S. Serrarens, L. Delvaux, Ch. L. Hammes and A. van Kleffens, Judges,
Advocate General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Procedure The applicant in his reply expressly stated that he withdrew his claim for the award of On 12 January 1956 the applicant, Mr the sum of one franc for non-material dam Bourgaux, lodged an application at the age. Registry ofthe Court ofJustice challenging The First Chamber by order of 29 June both the decision of 25 November 1955 of 1956 closed the preparatory inquiry. The the Bureau of the Common Assembly, tak parties have not submitted final written en when it was discussing its administra conclusions. tive rules of procedure, which provided in The oral procedure took place during the ter alia for the abolition of the applicant's hearings in open court on 26 and 29 Sep post and non-renewal of his contract of tember, 15 October and 23 November employment expiring on 31 December 1956. 1955, and also the order of the President of Pursuant to an order of the Court of 29 the Common Assembly of 13 December September the parties produced additional 1955, implementing the said decision. documents at the hearing. The appointment of the defendant 's agent During the hearing the parties presented and of Counsel to assist the parties has oral argument. been carried out in accordance with the The defendant applied to the Court for Protocol on the Statute and the Rules of leave to produce further documents and to Procedure of the Court of Justice. require the personal appearance of and to The parties have exchanged pleadings as examine the authors of an experts' report provided for in the Rules of Procedure of on the reorganization of the Secretariat of the Court; the formal procedure followed the Assembly. the normal course and moreover has not been challenged in this respect. The President of the Court of Justice as In answer to a question put to him by the signed the case to the First Chamber and Judge-Rapporteur the applicant stated appointed Judge Hammes to be the Judge- that his application was only directed Rapporteur. against the decision of the Bureau of the By order of 12 June 1956 the First Cham Assembly of 25 November 1955 in so far ber prescribed measures of inquiry, re as it did not renew his contract of employ questing the parties to supply particulars ment; more particularly he was not chal relating to three detailed questions set out lenging Orders Nos 6 and 7 relating to the in the said order and also the documents abolition and creation of certain posts. therein mentioned. At the hearing on 23 November 1956 the The parties complied with this order with Advocate General delivered his opinion in the prescribed period. that the application should be dismissed
JUDGMENT OF 17.12.1956 — CASE 1/56
but that each party should bear its own when the contract of employment was costs. handed to you' as stated in the letter of 2 February 1955 confirming the extension. Facts 3. The Secretary General of the Common 1. The applicant, Mr Bourgaux, entered Assembly informed the applicant by letter into a contract of employment dated 10 dated 13 December 1955 of Order No January 1953 with the Common Assembly 1087 of the same date whereby the Presi ofthe European Coal and Steel Communi dent of the Assembly notified him that on ty acting in accordance with the last para the expiration of his contract on 31 De graph of Article 6 of the Treaty and the cember 1955 it would not be renewed. third paragraph of Article 7 ofthe Conven tion on the Transitional Provisions and of This notice gave effect to decisions taken Articles 45 and 49 of the Rules of Proce by the Bureau of the Assembly on 25 No dure of the Assembly. vember 1955 when it discussed the admin The contract in addition to providing re istrative rules of procedure which pro ciprocal obligations states that 'the terms vided, inter alia, for a reorganization of de of the Rules of Procedure in force' apply to partments, the abolition of the post occu relations between the parties in so far as pied by the applicant and also the non- they are not inconsistent with the express renewal of his contract of employment. terms of the contract. In adopting these measures the Bureau was With regard to these terms it is advisable in following the recommendations of a Com this case to call attention to the following mittee of Experts which came to the con points: clusion that two departments, including the one run by Mr Bourgaux, should be (a) Article 2 provides that 'the contract abolished. shall take effect as from 1 January 1953 for The President's order was based on Article the term of two years'; 43 of the Regulations of the Common As sembly dated 10 January 1953 as amended (b) Article 15 states that 'those servants to on 16 January and 12 May 1954 together whom, on the expiration of this contract, with the aforementioned administrative the definitive version of the Staff Regula rules of procedure of 25 November 1955 tions of the Common Assembly is not ap and Orders Nos 6 and 7 ofthe same date on
plied shall receive an allowance amounting the 'abolition and creation of posts'. to not less than one-twelfth of their annual It refers to the contract dated 10 January emoluments for each year of service with 1953 but does not state on what contractu the Assembly'; al basis the allowance payable on termi nation of the appointment, for which pro (c) Article 16 provides that 'the servant vision was made under that contract, was may determine the contract at any time by calculated. giving three months' notice in writing'. The sum awarded to the applicant under this head, in the absence of a further offer Pursuant to this contract, although it is si of employment by the Community, was lent on this point, the applicant was ap made up of an allowance equal to payment pointed head ofthe Reports of Proceedings for a period of 24 months of the basic sal and Temporary Parliamentary Services ary drawn by the applicant in December Department. 1955 plus family allowances in addition to allowances under the contract and the reg
2. As Mr Bourgaux's contract came to an ulations in force; it was considerably more end on 31 December 1954 the parties than the amount provided for under Arti agreed to extend it to 31 December 1955 cle 15 of the contract. upon the same terms and with reference to the provisions ofthe provisional Staff Reg 4. A memorandum of 15 December 1955 ulations, 'a copy of which was sent to you signed by the head of the General Admin-
BOURGAUX v COMMON ASSEMBLY
istration Department of the Assembly ad It is pointless to examine the last claim in dressed to the Accounts Branch gives par the application since the applicant with ticulars of the allowances awarded to the drew it during the proceedings. applicant: 2. The defendant contends that the Court (a) Allowance for termina should dismiss the application. tion of contract (Under Article 15 of his 3. Each party submits that the other party contract of employment) 123 399 Bfrs should bear the costs.
(b) Allowance for chance of 4. The defendant during the written place of residence procedure did not challenge either the ju (Pursuant to Article 31a risdiction of the Court under Article 42 of of the provisional regula the Treaty or the admissibility ofthe appli tions) 124000 Bfrs cation.
(c) Special allowance pro It is only in its rejoinder that the latter calls vided for by Order No in question the admissibility of an action 1087 801 192 Bfrs against decisions adopted by the Bureau of the Assembly without however referring 5. On 22 December 1955 the Luxem expressis verbis to Article 38 ofthe Treaty. bourg Caisse d'Épargne de l'État received Nevertheless counsel for the defendant en from the General Secretariat of the Assem larged upon this submission when he ad bly an order to pay 1048 591 Bfrs to the ap dressed the Court at the hearing on 26 Sep plicant. tember 1956.
6. On the same date the Luxembourg 5. An analysis of the applicant's sub Caisse d'Épargne de l'État transferred the missions with reference to the decisions sum of 1048591 Bfrs, through clearance which he asserts should be annulled makes channels to the Banque Generate du Lux it clear that there is a general complaint (A) embourg and requested it to credit the said contained in the submission challenging sum to the applicant's account. the decision ofthe Bureau ofthe Assembly to reduce the staff of two specific adminis 7. On 12 January 1956 the application trative units and its view that two employ was lodged and registered at the Court Re ees cannot be assigned to new posts. gistry. The individual complaints (B) represent two points of view in that they criticize (a) I — Submissions and arguments of the the non-renewal of Mr Bourgaux's con parties tract, on the one hand, and, (b), in the al ternative, his unconditional dismissal, that 1. Mr Bourgaux claims that the Court is to say without being assigned non-active should: status, on the other hand.
(a) Annul the decision ofthe Bureau of the Common Assembly of 25 November A — The submission concerning the re 1955, since it was 'improperly' adopted; duction of staff and the inability to assign two employees to new posts attacks the de (b) Accordingly annul the order of the cisions to reorganize the administrative de President ofthe Assembly of 13 December partments of the Assembly (Orders Nos 6 1955 made in implementation of the said and 7 of the said Bureau). decision of the Bureau ; In this connexion the applicant offered to adduce evidence, either by the examina (c) Award him damages in the amount of tion of one of the experts or by producing one franc. the report ofanother expert; the defendant
JUDGMENT OF 17.12.1956 — CASE 1/56
made a similar offer in its submissions of in the secretariat and under the heads of 20 November 1956. department had been reduced by two, the During the oral arguments the applicant applicant could only have been kept in his withdrew his claim for annulment on this grade if another servant occupying a post ground and stated the application did not not affected by the reorganization had been relate to the orders 'on the abolition and dismissed. creation of certain posts'. The defendant further emphasizes that since Mr Bourgaux had not yet given up his B — (a) The submissions dealing with the post in his home country, he acknow non-renewal of the applicant's contract of ledged that his employment with the As employment refer to decisions of the Bu
sembly was precarious. reau and the President of the Assembly As far as concerns the alleged misuse of which are clearly of an individual charac power the defendant, in its oral sub ter. missions, denied that it showed any male On this point Mr Bourgaux claims that 'he volent intention towards Mr Bourgaux. has a contract governed by public law con When the Bureau adopted the decision cluded before the Staff Regulations entered which is challenged, it did not take note of into force so that he cannot be dismissed the documents produced by the applicant unless the grounds for his dismissal are which amounted to personal acts ofthe Se stated and moreover are substantial'. cretary General. He maintains in support of this argument 'that by limiting the duration of the con (b) The submission relating to the appli
tract . . . the parties did not necessarily in cant's dismissal refers to the decisions of tend to enter into a contract for a fixed pe the Bureau of the Assembly and of its riod President not to renew his contract when it On the other hand he goes on to say that came to an end instead of assigning him the abolition of the post is not a sufficient non-active status. ground for bringing to an end contractual Mr Bourgaux relies on 'Article 42 of the relations which include 'an expectancy' of Staff regulations adopted provisionally on a right to be and remain a member of the 12 December 1955' to support this claim; staff although carrying out other duties; in furthermore the prospect of obtaining a any event the burden of proving that this is post under the Staff Regulations vested in impossible lies on the institution. him a vested right (arising before the Staff In any case when the Assembly brought Regulations entered into force) to be as the relations between the parties to an end signed non-active status involving a prior on the ground that this was required by claim to be assigned to any post falling va the imperative exigencies of the service cant during this period, or, on the expira whereas in fact it was a disguised tion of the said period, to receive a pen disciplinary measure, this was a misuse of sion.
powers. He produces in support of this The defendant denies that any Staff Regu argument documents emanating from lations entered into force on the date men the Secretary General of the Assembly tioned by the applicant: it asserts that the and addressed to the President, Mr Pella, text referred to by Mr. Bourgaux is a draft which contain a somewhat unflattering of the Staff Regulations drawn up subse appraisal of the applicant. quent to the decision of 25 November The defendant retorts that it was entitled 1955, which in any case was not approved not to renew the contract of employment, by the Committee of Presidents, the only provided that this non-renewal did not 'au competent body for this purpose, (ECSC tomatically' result from the abolition of a Treaty, Article 78 — third paragraph of post and that the evidence that reinstate
Article 7 of the Convention on the Tran ment was impossible is to be found in its sitional Provisions) until 28 November discussions and the opinions which it ob 1956, and which did not enter into force by tained. virtue of any publication; only the regula In fact since the total number of employees tion of 1 July 1953 could apply.
BOURGAUX v COMMON ASSEMBLY
The Assembly however acknowledges that considered on 24 March 19 5 5 by the Com it settled the applicant's case by a payment mittee of Presidents, but only by way of fix equivalent to the allowance payable to a ing the amount of the allowance,since the servant for the period of non-active status contract of employment merely provided provided for in a draft of Staff Regulations for the minimum payment.
LAW
A — Jurisdiction and admissibility
In this case the Court's jurisdiction arises under Article 42 of the Treaty read to gether with Article 17 of the applicant's contract of employment which refers to 'the terms of the Rules of Procedure in force'; all the various versions of the rules of procedure of the Common Assembly have contained an article confer ring jurisdiction upon the Court. The defendant maintains that, since the applicant claims the annulment ofa de cision affecting him, the jurisdiction of the Court is governed and limited by the provisions of Article 38 of the Treaty, under which the application is inadmis sible.
Nevertheless the general wording of Article 42 makes it impossible to conclude . that an arbitration clause can be subject to a binding legal limitation which in this case would rule out the remedy of an application for annulment. The remedies available in administrative matters to the staff of all four institu tions are organically distinct from the restricted nature ofthe review by the Court which under Article 38 of the Treaty applies to the activities of the Assembly as an institution.
Since the aim of these remedies is to restore contractual rights or rights under the Staff Regulations which have been infringed, the annulment of a measure in fringing them cannot be excluded in an appropriate case. Therefore the Court has jurisdiction to hear this case and the application is ad missible.
B — The purpose of the application
In his originating application the applicant launches a general attack on the de cision of the Bureau of the Common Assembly of 25 November 1955 (in con junction with Order No 1087 of the President of that institution dated 13 De cember 1955). The discussions and decisions ofthe Bureau on that day according to the minutes of proceedings of that sitting were complex and many of them are interconnect ed. During the hearing the applicant limited his challenge to the many decisions of the Bureau to the one (Item No 15 of the Minutes) providing for the non-renewal
JUDGMENT OF 17.12.1956 — CASE 1/56
of his contract and has thereby admitted that the institution is entitled to organ ize its administration in the best interests of the service. In these circumstances the applicant's offer in his reply to prove by means of a new expert's report that the reorganization has not achieved its object as well as the defendant's request for the presentation of evidence by experts whom it con sulted are to be rejected as having no purpose.
C — The substance of the case
The applicant concludes from the general tenor of his contract, which according to the provisions of the third paragraph of Article 7 of the Convention on the Transitional Provisions appears to foreshadow the Staff Regulations, that he has a right 'ante-dating the Staff Regulations' to prevent the defendant from termi nating the relationship between the parties, even though subject to a fixed term, except for compelling reasons. By limiting the duration ofthe contract to a fixed term the intention ofthe parties was to provide for a transitional situation made necessary in view of the time re quired to draft Staff Regulations. The defendant does not dispute this explanation but, in so far as the non-renewal of the contract is concerned, relies on the fact that since Mr Bourgaux's post had been abolished it could not continue to employ him in the service. In fact following a reorganization of its administration for reasons of economy it effected staff reductions after consulting experts in this field. In particular, since the number of heads of department and heads of division was reduced by two units, the applicant could not be kept on in his grade unless an other servant occupying a post unaffected by the staff reorganization was dis missed. In this respect it is appropriate to observe that in this case there was a complete reconstruction of the Assembly's administration followed by a reallocation of posts. Five posts of heads ofdepartment or division were abolished and three new posts were created.
In these circumstances the problem to be resolved was which of the five holders of these posts were to be given the three new posts. Although the selection was within the discretion of the Bureau of the Common Assembly, it is nevertheless appropriate to consider whether it has been properly exercised or whether the relevant decision, as the applicant claims, amounts to a misuse of powers either because a right vested in him by virtue of his grade and seniority was wilfully disregarded or because it was a concealed disciplinary measure.
The selection should have been determined by personal qualifications having re gard to the abilities required for each new post together with experience in the relevant field.
BOURGAUX v COMMON ASSEMBLY
In this case the applicant's previous duties had been spread over several divi sions.
The dismissal of other employees who were already in positions of authority could not be justified since the interests of everyone affected deserved equal con sideration.
Moreover there was no reason why the defendant should decide to assign one of the posts to the applicant rather than to the three other reclassified employees whose ability has never given grounds for criticism. There are therefore no grounds for the view that the applicant was the victim of a decision based on reasons other than the exigencies of the services. Neither can the Court subscribe to the view that the selection adversely affecting the applicant amounted to a concealed sanction. Although Mr Bourgaux's personal file containing the correspondence, which was produced to the Court, shows that certain difficulties arose between him and his superiors, it also appears from these letters, which make it clear that he was highly regarded, and from the defendant's statements at the hearing, that the Common Assembly had no cause to criticize him. As far as concerns the unfavourable views expressed by the Secretary General of the Assembly recorded in statements communicated to the President, which surprisingly contradict the commendations already contained in the documents clearly referred to, it may be noted, without its being necessary to consider their more or less confidental nature, that there is nothing to show that they were brought to the notice of the Bureau and influenced its decision, especially as the only important opinion, that of 27 January 1955, was given almost one year be fore the contested measure. This submission is therefore unfounded. The applicant's argument that the defendant should have offered him some other similar post in its administration cannot be accepted, because the reorgan ization of the departments made such a step impossible. Moreover there was no obligation to offer a position subordinate to the one which had been abolished, since even the draft Staff Regulations only provide in such a case for entitlement to a post of the same grade and compensation if such reinstatement is impossi ble; furthermore the expert's opinion does not mention such a possibility and there is no ground for assuming that any such post would have been available. The applicant submits in the alternative that the effect of the refusal to incor porate him in the reorganized administration of the Assembly should not have been the complete termination of all legal relations between the parties but the assignment to him of non-active status together with all the attendant conse quences of such a step, for instance that he might have a prior claim to be rein stated and, if this proved to be impossible, the right to a pension. He bases this submission on the provisions of the Staff Regulations of the Com munity which he maintains were adopted by the Committee of Presidents on 12 December 1955 and replaced the provisional Staff Regulations of 1 July 1953. However the construction which the applicant wished to place upon the deci-
JUDGMENT OF 17.12.1956 — CASE 1/56
sion of the Committee of Presidents is wrong. This decision was only concerned with the provisions ofthe draft regulations and this moreover did not prevent draft amendments from being discussed at the meeting of the Committee of Presidents on 28 January 1956. The expression 'fi nal adoption' therefore had no relevance except within the Committee of Presi dents and the date of the entry into force of the Staff Regulations in the various institutions was still indeterminate, since it in fact depended on the completion of the annexes applicable to each institution and on the drawing up by a joint committee of the general provisions without which the Staff Regulations could not be applied. Even if the Staff Regulations had been applicable before their entry into force and publication and had replaced the provisional regulations as soon as they had been 'adopted', the position still remains that their provisions on the assignment of non-active status would not have applied to the applicant since he had not previously been established.
This submission must therefore be rejected as unfounded.
The position is the same with regard to the argument that the Staff Regulations applied de facto, which is inferred from the fact that following a request by em ployees of the Common Assembly to the President that the Staff Regulations might be applied to them, orders issued by him provided on their behalf for a special form of extension of their contracts, which amounted in principle to the revocation as from 31 December 1955 of the provisional Staff Regulations of 1 July 1953 but retaining in an annex the provisions therein mentioned until the date when the definitive Staff Regulations entered into force. The applicant however could not derive any benefit from such an extension be cause the new staff organization governed by the above-mentioned regulations entered into force on 1 January 1956, but did not provide a post for him. Finally, the applicant claims that, since his contract was concluded before the entry into force of the Staff Regulations, it gives him the right to have applied to him in advance the provisions of the Staff Regulations relating to the possi bility of the abolition of a post and in particular the assignment of non-active status.
There are however in this case no grounds for the direct application in their en tirety of the rules relating to assignment of non-active status, which would amount to the application in advance of a draft which was still in the process of being drafted. Furthermore the Staff Regulations could not in any circumstances apply to the applicant as of right, because he has not been established, which is a condition precedent to their application, and because the relevant budget rules and esti mates had not been drawn up. When the Bureau of the Common Assembly took its decision it had to be guided by the provisions of the draft Staff Regulations governing the consequences of abolition of a post.
BOURGAUX v COMMON ASSEMBLY
In this connexion the Bureau of the Assembly decided to award the applicant not only the minimum compensation provided for under Article 15 of his con tract but also compensation equal to his entire salary for two completed years. The compensation which the Bureau of the Assembly has thus awarded the ap plicant is in keeping with its obligation to be guided by the rules specified in the draft Staff Regulations, even though the defendant referred in its oral argument to draft regulations which at the time had been withdrawn and replaced. Moreover the applicant has not made any complaint as to the amount of the compensation granted.
This submission is unfounded.
The applicant's application must be dismissed.
D — Costs
The parties have failed in some oftheir submissions and in particular the defend ant has failed in its submission that the application is inadmissible; it would therefore be appropriate for the parties to bear their own costs. In this case the defendant submits that Mr Bourgaux's application is frivolous and vexatious and that he should therefore be ordered to bear the entire costs. Although the Court has objectively acknowledged that the institution, which re lies on the fact that owing to the reorganization of its departments it could not keep the applicant on its staff, has acted in good faith, the applicant from his point of view might doubt whether his redundancy was unavoidable especially in view of the fact that the defendant's behaviour was, as mentioned above, to some extent equivocal. As the application was therefore not vexatious the Court decides that the parties must bear their own costs.
Upon reading the pleadings; Upon hearing the parties; Upon hearing the opinion of the Advocate General; Having regard to Article 42 of the Treaty ; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice and the Rules of the Court on costs,
THE COURT
hereby:
Declares that Mr Bourgaux's application is admissible;
Dismisses Mr Bourgaux's application as unfounded;
OPINION OF MR ROEMER — CASE 1/56
Orders each party to bear its own costs.
Pilotti Rueff Riese
Serrarens Delvaux Hammes van Kleffens
Delivered in open court in Luxembourg on 17 December 1956.
M. Pilotti A. Van Houtte Ch. L. Hammes President Registrar Judge-Rapporteur
OPINION OF MR ADVOCATE GENERAL ROEMER <apnote>1/p
Summary
I -Facts 372
II — Jurisdiction ofthe Court — Nature of the action and admissib ility of the application for annulment 373 1. Jurisdiction of the Court 373
2. Nature of the action 374
3. Admissibility of the application for annulment 375 III — Claims of the applicant 376 IV — Substance 376
1. Abolition of the post occupied by the applicant 376 2. Assignment to a new post 376
3. Assignment to non-active status 378
(a) Application of the Staff Regulations of the Community in their final form 379
(b) Application of the principles of the judgment in Case 1/55 (Keniall) 382
V — Result, costs and opinion 383
Mr President, the Common Assembly on 1 January Members of the Court, 1953. His contract was concluded for two years and on its expiry was extended for a Allow me, at the outset of my opinion in further year until 31 December 1955 un Case 1/56, Bourgaux v Common Assem der a general extension of similar con bly, briefly to rehearse the facts once again. tracts. The applicant was head of the Re ports of Proceedings and Parliamentary I — Facts Services Department. On 25 November 1955 the Bureau of the Common Assem The applicant entered the employment of bly after obtaining an opinion from outside
1 — Translated from the German.