C-26/67
ECLI:EU:C:1968:38
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JUDGMENT OF THE COURT (SECOND CHAMBER) 11 JULY 19681
Henri Danvin v Commission of the European Communities
Case 26/67
Summary
1. Officials — Rules relating to acting as deputy for another official — Powers of the administration — Rules relating to temporary posting — Application of those rules reserv ed for officials in the same category as those to be replaced (Staff Regulations of Officials of the EEC, Article 7)
2. Costs — Order for each party to bear own costs — Exceptional circumstances (Rules of Procedure, Article 69(3)
1. The system for the temporary replace department. Since temporary posting is ment of absent officers forms part of the only permissible within the category of general powers of any administration in the official to be replaced, it cannot be respect of the organization of its depart applied to a person replacing an official ments, which it may use for the purpose in a category other than his own. of ensuring the continuity of the service 2. Exceptional circumstances justifying an when the holder of a post is absent or order that the parties bear their own prevented from attending to his duties. costs in whole or in part exist where the Such replacement may only continue for silence of a legal provision as to the as long as is required for the normal position in law of the applicant was such functioning of the department, having as to create doubts regarding the rules of regard to the objective needs of that law applicable.
In Case 26/67
Henri DANVIN , an official of the Commission of the European Communities, represented and assisted by Marcel Slusny, Advocate at the Cour d'Appel, Brussels, lecturer at the Free University of Brussels, with an address for service in Luxem bourg at the Chambers of E. Arendt, Advocate, 6 rue Willy-Goergen,
applicant,
v
Commission of the European Communities , represented by its Legal Adviser,.
1 — Language of the Case: French.
JUDGMENT OF 11. 7. 1968 — CASE 26/67
L. de la Fontaine, with an address for service in Luxembourg at the offices of H. Manzanarès, Secretary of the Legal Department of the said Commission,
defendant,
Application for the annulment of an implied decision refusing a request made by H. Danvin on 12 January 1966 for a differential allowance and for the payment of compensation,
THE COURT (Second Chamber)
composed of: W. Strauß, President, A. Trabucchi (Rapporteur) and P. Pescatore, Judges,
Advocate-General: J. Gand
Registrar: A.Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of the facts On the entry into force of the Convention of Association between the EEC and the The facts may be summarized as follows: Associated African States and Malagasy, The applicant holds a post in Category B1 the Commission undertook the restruct in the Accounts Division of the Directorate uring of the accounting services in com for Investments of the Directorate-General pliance with the provisions of the Financial for Overseas Development. Regulation adopted by the Council on 1 By decision of the President of the Commis June 1964 (Official Journal No 93 of 11 June sion of 5 June 1959, Mr Danvin was ap 1964) providing for the setting up of an pointed assistant accounting officer in an independent service under a financial accounting unit the head of which was Mr comptroller. Heusghem, an official in Grade A5. An Under the temporary measures adopted for other decision of the same date specified the purpose of implementing the financial that when the chief accounting officer was operations relating to the second European absent or prevented from attending to his Development Fund, Mr Heusghem was, on duties, the assistant accounting officer 25 February 1965, nominated as the official should take over his duties. These two in charge of controlling the accounts. From decisions were adopted on the basis of then until June 1966, Mr Danvin carried out Articles 6 and 9 of Provisional Regulation the duties of chief accounting officer, as a No 6 of the Council of 3 December 1958 replacement, first, for Mr Heusghem and, (Official Journal No 33 of 31 December as from 20 December 1965, for Mr Bering, 1958) relating to the responsibility of the new Holder of the post of chief account authorizing officers and accounting officers ing officer for the Fund. for the funds of the Development Fund for On 12 January 1966, Mr Danvin requested the Overseas Countries and Territories. the differential allowance prescribed by;
DANVIN v COMMISSION
Article 7(2) of the Staff Regulations for the The defendant contends that the Court period during which he had. replaced the should: chief accounting officer. This request, which '— dismiss the application as unfounded; had received the support of the applicant's — order the applicant to bear the costs in Director-General, was refused by the accordance with the provisions appli Directorate-General of Administration, on cable'. the ground that under the provisions of Article 7(2) of the Staff Regulations tem III — Submissions and arguments of porary posting applies only within a
the parties category or service. Contesting the decision rejecting his request, A — The admissibility of the application which was notified to him by letter of 27 February 1967 from the Director-General The admissibility of the application is not of Administration, on 30 March 1967 Mr contested by the defendant. Danvin submitted a complaint under Article 90 of the Staff Regulations to the President B — The substance of the case of the Commission claiming damages equi valent to the differential allowance under The submissions and arguments of the Article 7(2) of the Staff Regulations for the parties may be summarized as follows: period during which he had replaced the principal accounting officer.
1. The submission relating to infringement On 24 July 1967, Mr Danvin made an appli of the Staff Regulations of Officials and cation to the Court against the implied to the wrongful act or omission con decision rejecting his request constituted by stituted by this infringement the silence of the Commission. He named both the European Economic Community The applicant maintains that apart from the and the Commission of the European Com question whether the temporary posting munities as parties. with which he had been entrusted conform ed to the Staff Regulations he could not II — Conclusions of the parties refuse to follow the instructions issued by his immediate superiors.
If these instruc The applicant claims that the Court should: tions proved to be contrary to the Staff Regulations, the Commission would be '1. Annul the implied decision of the Com guilty of a wrongful act or omission giving mission of the European Economic rise to liability on its part. Community rejecting his appeal through The defendant contends that no temporary official channels; posting was conferred on Mr Danvin; it was 2. Rule that the applicant must be paid a only the decision of the President of the differential allowance calculated on the Commission of the EEC of 5 June 1959, basis of the principles set out in Article providing expressly that the assistant ac 7(2) of the Staff Regulations and which counting officer should automatically de the applicant estimates, subject to the putize for the chief accounting officer when right to amend the sum as he may deem the latter was absent or prevented from necessary during the course of the attending to his duties, which was applied. proceedings, at BF 100 000; Consequently, there was no infringement of
3. Order the defendants to pay this allow the Staff Regulations or of any other rules of ance; law on the part of the applicant's superiors. 4. Order the defendants to bear all the The applicant, in his reply, emphasizes that costs of the proceedings; the two decisions of the President of the 5. Order the defendants to submit to the Commission, adopted in pursuance of Court the calculation of the allowance Articles 6 and 9 of Provisional Regulation which should have been paid to the No 6 of the Council of 3 December 1958 applicant in accordance with Article 7(2) were prior to the entry into force of the: of the Staff Regulations'. Staff Regulations of Officials in 1962.
The
JUDGMENT OF 11. 7. 1968 — CASE 26/67
relationship between Mr Danvin and the Category B cannot be temporarily assigned Commission for the period in which he to a post in Category A, is in this case con replaced his chief accounting officer were trary to the spirit of the provision in ques therefore governed by the Staff Regulations. tion. However, even from the point of view This is confirmed by the fact that Article 9 of this strict interpretation, the applicant's of the abovementioned Regulation No 6 of position presented anomalies: he was not the Council refers to the provisions which allowed under the Staff Regulations to
should subsequently have been taken pur deputize for his chief and yet he did so for suant to Article 209(c) and the third para four months longer than the period of one graph of Article 215 of the Treaty. The year prescribed for the temporary posting temporary provisions which were adopted of officials of the same category. in this connexion by the President of the The defendant states, on the other hand, that Commission before the provisions referred in Article 7(2) of the Staff Regulations the to in Article 9 of Regulation No 6 were word 'category' is not used in a sense differ adopted must therefore be regarded as ent from that in Article 5. having been repealed by implication by the The fact that the period for which the Staff Regulations. principal accounting officer was prevented The defendant denies that there is any link from attending to his duties continued for between the decisions of the President so long is explained by the complexity of the relating to the organization of the Accounts problems raised by the restructuring of the Department and Article 9 of Provisional accounting departments and by the unfore Regulation No 6 of the Council.
Accord seeable nature of the circumstances which ingly, the argument which the applicant delayed the appointment of the new chief bases on Article 9 cannot support his accounting officer. Mr Danvin's period of proposition that the organization of the disputizing for his chief was justified in the Accounts Department, established by the interests of the service and could not there two decisions of the President, was only a fore give rise to damages. temporary measure. In the absence of any provision expressly The applicant's principal argument relating authorizing it, the Commission was not to tacit revocation of the two decisions of obliged to grant Mr Danvin a special 1959 is based on a misinterpretation by him allowance compensating him for the work of the two concepts of temporary posting which he carried out and which, essentially, and of deputizing. Whilst it admits that in is covered by the duties attaching to his post. practice these two concepts relate, more or In any case, the action for damages brought less, to the same function, the defendant by the applicant is completely unfounded points out that there are important differ since he has not proved that he suffered any ences between them: deputizing, in contrast damage. to temporary posting, is of an automatic The applicant observes that, according to and precautionary nature, and limits the Article 2 of the decision of the President deputy's powers in such a way that he of the Commission of 5 June 1959 relating cannot alter the general orientation given to to the replacement of the chief accounting the activities of the department by the officer by his deputy, the President official holding the post. was required to authorize every such Having regard to these differences, the replacement. The replacement of Mr defendant maintains that Article 7 of the Heusghem by Mr Danvin was not automa Staff Regulations, corresponding exclusive
tic; at the time it was not possible for the ly to the concept of temporary posting, appointment to be made by decision of the cannot exclude other forms, prescribed by President of the Commission but it was legislative provisions from time to time, of decided upon by the Director-General for replacing the holder of a post who is absent Overseas Development, in other words by or prevented from attending to his duties. his superior officer, as is implied by Article In the applicant's opinion, the strict inter 7(2) of the Staff Regulations. pretation of the word 'category', referred to The defendant points out in reply that the in Article 7(2), in the sense that an official in intervention by the Director-General re-
DANVIN v COMMISSION
sponsible for the applicant did not amount latter. The damage which the applicant has to a formal assignment of the post but suffered arises from the fact that in carrying merely constituted a designation of a out his superior's work in addition to his person who, once chosen, was automatically own he exhausted the possibility of under entrusted with the duties on the strength of taking any occasional additional work out the President's decision. Moreover, the side his duties with the Commission. applicant's immediate superior did not have If there is no legal provision justifying this the power to authorize the temporary enrichment on the part of the institution, it posting under Article 7(2) of the Staff must be recognized that it is unjustified. Regulations, since the application of this Even if the first submission is rejected this Article is solely a matter for the appointing submission is justified for reasons of natural
authority. The defendant also contests the justice. applicant's argument that the wording of The defendant maintains that the subsidiary the President's decision prescribes that the nature attributed to the actio de in rem verso authorization of the President is required on must be judged in abstracto by reason of the every occasion on which a deputy assumes exceptional nature of that action; this the duties of his superior. On the contrary, means that the plaintiff can only bring such this decision entrusts the deputy with the an action if he has no other grounds of duties of his superior once and for all, so action arising from a contract or quasi- that the system functions automatically contract or based on tortious or quasi whenever the need arises. tortious liability, which is not the case here, for the facts giving rise to the alleged en
2. The submissions relating to unjust en richment occurred within the context of a richment relationship governed by public law between the applicant and the Commission. The applicant maintains that the Commis In any case, the defendant maintains that sion has been unjustly enriched and by the submission based on unjust enrichment reason of this fact has a duty to pay to him a cannot be accepted, since it has not been differential allowance calculated in accor established that the applicant suffered dance with the principles set out in Article damage. 7(2) of the Staff Regulations of Officials. Gainful activity outside the service is of an The defendant objects that, according to the exceptional nature under the Staff Regula internal laws of the six Member States, tions, as can be seen from the fact that for unjust enrichment and corresponding loss such activity to be legal it must be author must not result from any legal relationship ized in accordance with the provisions of
between the parties. In this case, on the Articles 11 and 12 of the Staff Regulations. other hand, the alleged enrichment derives Finally, the defendant states that the action from the relationship of employment arising from unjust enrichment is not based between Mr Danvin and the Commission on considerations of natural justice but on and this suffices to deny him the opportunity specific legal principles established either by to plead actio de in rem verso. Since the the legislature or by case-law. Commission cannot be held in anyway to be liable, the enrichment is merely the result 3.
The amount of the allowance of the service which the applicant is legally bound to perform. Subject to the right to amend the sum as he In his reply, the applicant, after emphasizing may deem necessary during the course of that he only intended to raise this submis the proceedings, the applicant claims an sion as a subsidiary plea, asserts that the allowance of BF 100 000. work and additional responsibilities which The defendant points out that the actual he assumed have without doubt led to a gain amounts of the allowance to which Mr on the part of the institution since it has Danvin would be entitled, if Article 7(2) of obtained at one and the same time the work the Staff Regulations were to apply in his of a chief accounting officer and that of an case, would be, at the most, BF 16 783. assistant account officer for the salary of the The applicant replies that to the material
JUDGMENT OF 11. 7. 1968 — CASE 26/67
damage which he suffered there must be since he could not have been ignorant of the added the non-material damage caused by fact that a temporary appointment can the false hope which he was given of occu never give a person the right to promotion. pying officially the post the duties and During the oral procedure the applicant responsibilities of which he was undertaking stated that the calculation of the allowance on a provisional basis. made by the defendant on the basis of The defendant observes in its rejoinder that, Article 7(2) was incorrect, since account by persisting in his claim for an allowance of was not taken of the applicant's seniority in BF 100 000 without at the same time con his grade. At the same time counsel for the testing the fact that the allowance calculated applicant declared that he withdrew the on the basis of Article 7(2) of the Staff claim relating to compensation for non- Regulations amounts to BF 16 783, the material damage. applicant has thereby advanced a new claim. In effect, this claim, which the appli IV — Procedure cant now justifies by reference to the existence of alleged non-material da mage, is The written procedure followed the normal no longer directed towards obtaining solely course. Upon hearing the report of the the differential allowance under Article 7(2) Judge-Rapporteur and the opinion of the of the Staff Regulations, which the appli Advocate-General the Court (Second cant has requested in his appeal through Chamber) decided to open the oral pro official channels and in his application to the cedure without making any preparatory Court. inquiry. This new claim must be dismissed on the The oral procedure took place on 15 May ground of inadmissibility. Furthermore, 1968 and the Advocate-General delivered there can be no 'false hopes' for which the his opinion at the hearing on 27 May 1968. official concerned can receive compensation
Grounds of judgment
The applicant maintains that his relationship with the Commission during the period for which he replaced his chief accounting officer was governed exclusively by the Staff Regulations of Officials, since those Regulations revoked by implication the temporary measures adopted on 5 June 1959 by the President of the Commission providing that, within the European Development Fund, the assistant accounting officer should automatically deputize for the chief accounting officer.
That decision of the President of the Commission, the purpose of which was to ensure continuity in the exercise of the duties of chief accounting officer of the European Development Fund, established rules intended to provide that when the chief accounting officer was absent or prevented from attending to his duties he should be automatically replaced on a temporary basis, by the assistant accounting officer.
This special measure, which concerns a particular sphere, cannot reasonably be replaced by the general provisions of the Staff Regulations of Officials.
The functioning and organization of the European Development Fund require that there should be no interruption in the exercise of the duties of chief accounting
DANVIN v COMMISSION
officer. It is therefore necessary that the official called upon to deputize for the chief accounting officer should be designated in advance so as to facilitate the latter's immediate replacement by a suitably qualified servant.
Under the Staff Regulations, the only provision for ensuring the temporary replace ment of one Community official by another is the procedure of temporary posting governed by Article 7(2). Under this provision, however, an official can only be called upon to occupy temporarily a post which is in the same category as the post which he occupies permanently. The post of assistant accounting officer may fall in a category lower than that relating to the post of accounting officer. In such a case, the Staff Regulations do not make provision for temporary replacement of the chief accounting officer, when he is absent or prevented from attending to his duties, by the official who, within the organization of the European Development Fund, may be considered, in his position as assistant, as the most suitable for this task.
In these circumstances, and in the absence of any express prohibition in the Staff Regulations in this connexion, the functioning of the Accounts Department of the European Development Fund requires and justifies the continuance, even after the entry into force of the Staff Regulations, of the special provision instituted by the President of the Commission for the temporary replacement of the chief accounting officer.
The reference made by Article 9 of Provisional Regulation No 6 of the Council of 3 December 1958 to the provisions which were subsequently to be adopted pursuant to Article 209(c) and the third paragraph of Article 215 of the EEC Treaty only relates to the rules concerning the responsibility of authorizing officers and accounting officers of the Fund in respect of the regularity of payments and the keeping of accounts.
Consequently, this reference cannot mean that the special provision relating to the replacement of the chief accounting officer by the assistant accounting officer is automatically revoked by the Staff Regulations of Officials.
Furthermore, the system for the temporary replacement of absent officers forms part of the general powers of any administration in respect of the organization of its departments. These powers may be used for the purpose of ensuring the continuity of the service when the holder of a post is absent or prevented from attending to his duties.
Such replacement may only continue for as long as is required ;for the normal functioning of the department, having regard to the objective, needs of that depart ment. The applicant replaced the chief accounting officer for sixteen months. Although this extraordinarily long period of time may be justified in this case by the position and special requirements relating to the restructuring of the European
JUDGMENT OF 11. 7. 1968 — CASE 26/67
Development Fund, it is nevertheless desirable that as a general rule in such cases the administration should, in so far as is possible, replace an official prevented from attending to his duties for a protracted period by an official who can benefit from the temporary posting.
It is regrettable that the applicant, who for a long period carried out duties in a grade higher than his own and who, according even to the Commission, acquitted himself very creditably with the more complex tasks thus entrusted to him, was unable to enjoy the benefits provided for by Article 7(2) of the Staff Regulations. However, having regard to the legal provisions in force, which only permit tem porary posting within the same category, it is not possible to apply the provisions of Article 7(2) to the applicant, who replaced an official in a category different from his own.
It follows from the foregoing considerations that the defendant has not committed the wrongful act or omission alleged by the applicant.
The applicant claims to be entitled to an allowance by reason of the Commission's enrichment resulting from the activity which he performed as replacement for the chief accounting officer.
It follows from the foregoing considerations that the fact that the defendant tem porarily conferred upon the applicant, acting as deputy, duties relating to a grade higher than his own does not provide grounds for complaint.
In these circumstances and without prejudice to the question of the applicability to the relationship between the Community administration and its officials of the concept of unjust enrichment, it cannot, in any case, be accepted that the Commis sion was unjustly enriched by reason of the applicant's activities. Moreover, according to a generally accepted principle in the national legal systems, the appli cant's action would only be well founded if he had suffered loss corresponding to the alleged enrichment of the other party. In this case, the applicant has not proved his claim to have suffered prejudice by reason of his performing duties of a grade higher than those relating to his own post under the Staff Regulations.
Accordingly, the submission of unjust enrichment must be rejected.
Costs
The applicant has failed on all the heads of his application. Under the combined provisions of Articles 69(2) and 70 of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs with the exception, for Community officials, of the costs incurred by the defendant institution.
It is, however, appropriate in this case to apply Article 69(3) of the Rules of
DANVIN v COMMISSION
Procedure, under the provisions of which the Court may order that the parties bear their own costs in whole or in part where the circumstances are exceptional. It must in fact be admitted that the silence of the Staff Regulations as to the legal position of a deputy was such as to create uncertainty regarding the rules of law applicable.
Furthermore, taking into consideration the facts in this case, it would be par ticularly unjust to order the applicant to bear all his own costs.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 7; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
THE COURT (Second Chamber)
hereby:
1. Dismisses Application 26/67 as being unfounded;
2. Orders the defendant to bear its own costs and three-quarters of the applicant's costs.
Strauß Trabucchi Pescatore
Delivered in open court in Luxembourg on 11 July 1968.
A. Van Houtte W. Strauß
Registrar President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL GAND DELIVERED ON 27 MAY 19681
Mr President, whom the defendant institution speaks Members of the Court, highly, but whose request it declares itself unable to satisfy — I should like to recall Before examining the merits of the applica briefly how the dispute arose. tion made by Mr Danvin—an official of For the creation in 1958 of the Development
1 — Translated from the French.