C-17/68

2. Officials — Recruitment — Criteria — Geographical balance — Directorate- General as field of application (Staff Regulations of Officials of the European Communities, Article 7)

3. Officials — Recruitment — Criteria — Rationalization of the service as a result of the Merger Treaty — Principle of entitlement to career prospects — Overriding criterion in relation to the principle of geographical balance (Merger Treaty, Annex I)

1. It is clear from Article 7 of the establish a geographical balance Staff Regulations read together with among its staff. Article 27 thereof that, when the 2. The fulfilment of the obligation to Commission recruits, promotes and as­ secure the recruitment of officials on signs its servants to posts, it must be the broadest possible geographical guided on the one hand by the interests basis must not be limited to a small of the service without regard to number of posts within a single nationality and on the other hand Directorate -General. must ensure that they are recruited 3. In the special conditions applicable on the widest possible geographical to the task imposed by the Merger basis from among nationals of the Treaty compliance with the prin­ Member States of the Communities. ciple that proper regard should be The Commission reconciles these had for the career prospects of requirements when, in those cases officials must take precedence over where the qualifications of the various considerations relating to the main­ candidates are substantially the same, tenance of a geographical balance in it makes nationality the overriding the composition of the staff of the criterion in order to maintain or re­ Communities.

(a) for the annulment of the decision of 26 June 1968 terminating the service of the applicant; (b) for the annulment, to the extent to which it may be necessary, of the decision of 20 March allocating the applicant on a provisional basis to the post of Principal Adviser and of the decision of 30 May 1968 notified by a letter from the President of the Commission dated 31 May 1968, entering the applicant's name on the list of officials who might be affected by a measure terminating the service of certain officials; (c) for a declaration that the applicant shall continue to be paid his remunera­ tion and to enjoy all the benefits attached to his post,

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars, President (Rapporteur), A. M. Donner and R. Monaco, Judges,

Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

The applicant having previously ex that this consent was moreover con pressed his intention of leaving the ditional and that he was therefore forced service of the Commission, gave notice to emphasize that a decision based on by a letter of 11 March 1968 addressed a 'consent which was expressly made to his superior, Mr Rho, Director- subject to a condition' appeared to him General for Transport that he had to be entirely unjustified. changed his mind but reserved the At its 39th meeting on 30 May 1968 right to avail himself if necessary of the Commission considered whether to the provisions of Article 4(3) of Regula adopt measures terminating the service tion No 259/68. of certain officials, including the appli On 20 March 1968 the Commission at cant, and instructed the President to its 30th meeting allocated certain inform the persons concerned 'so that officials to the posts of Director and they can submit any comments they allocated certain other officials, including may wish to make to the Commission' the applicant, on a provisional basis to before it made its final decision in the the post of Principal Adviser. last ten days of Tune 1968. By letter or 22 March 1968 the Com On 31 May 1968 President Rey notified missioner responsible for the Directorate the applicant of this decision and in for Transport requested Mr Rho, the formed him that the decisions of 20 Director-General, to inform the appli March 1968 which allocated certain cant that his decision of 11 March 1968 officials to the post of Principal Ad was out of time. He went on to say: viser did not in any way anticipate the terms of the final decisions to be taken

As a measure terminating the service of you are aware the Commission took note certain officials as provided for by of this proposal and therefore designated Article 4(1) of Regulation No 259/68 the other three Directors for the new of the Council of 29 February 1968. Directorates. The present application was lodged at For your personal guidance I would the Registry on 29 June 1968. mention that, if the selection of the The pleadings of the parties were de officials is called in question, this would livered within the prescribed time-limits lead to another discussion within the and the procedure followed the normal Commission concerning a geographical course. balance which was only achieved with During the hearing of 14 January 1969 great difficulty.' the Court (First Chamber) heard the By a letter of 14 April 1968 addressed preliminary report of the Judge-Rap to the President of the Commission the porteur and after hearing the views of applicant reminded him that he had the Advocate-General decided to open withdrawn his previously expressed con the oral procedure without ordering any sent to leave the service voluntarily; preparatory inquiry.

The oral submissions of the parties were III — Submissions and presented at the hearing of 25 February arguments of the 1969. parties At the end or the hearing the applicant lodged a document which had been pre­ A — Admissibility viously communicated to the defendant. He also lodged a note containing a claim The defendant contends that the appli­ in the alternative for damages and in­ cation is inadmissible in so far as it is terest and an indication of the evidence directed against the decisions of 20 relied on in support of this claim. March and 30 May 1968. The Advocate-General delivered his The decision of 20 March 1968 is only opinion during the hearing of 13 March an ordinary internal administrative 1969. measure and, moreover, since its only purpose is to alter the applicant's duties by giving him on a provisional basis II — Conclusions of the new tasks corresponding to his grade, parties such a measure taken in order to rationalize the departments is not of a The applicant claims in his application kind which can adversely affect him. that the Court should: The decision of 30 May 1968 is not a (1) Declare that the decision of the Com­ measure which can have direct effect on mission of 26 June 1968 terminating a specific legal situation, as in it the his service with the Commission is Commission only makes a declaration of null and void; intent. The final decisions made at the (2) Declare, to the extent to which it meeting of 26 June 1968 moreover may be necessary, that the decision proved to be different from those at the of 20 March 1968 and the decision, meetings held between 28 and 31 May the date of which is not known, men­ 1968. tioned in the letter of the President The applicant replies that the decision of the Commission of 31 May 1968 of 20 March 1968 is not a modification are null and void; of the duties assigned to him which (3) Declare that the applicant shall con­ might be provisional but logically and tinue to be entitled to receive his necessarily had to be followed by the salary and to enjoy the benefits at­ decision of 26 June 1968. He invokes taching to his post; in support of this argument the letter (4) Order the defendant to pay the of 22 March 1968 of Mr Bodson and costs. the fact that from 29 April 1968 the The defendant in its statement of de­ staff was informed in No 28 of the fence and in its rejoinder contends that 'Staff Courier' of the final appointment the Court should: of a number of new officials to the posts (1) Declare that the application is in­ of Director provided for in the detailed admissible in so far as it is directed list of posts. As all the posts were filled, against the decision of 20 March the dismissal of the Principal Advisers 1968 and against the decision of 30 could no longer be in doubt. The ap­ May 1968; plication is therefore admissible in so far (2) In addition dismiss it as unfounded; as it is directed against the decision of (3) Order me applicant to pay the costs. 20 March 1968, because the assignment The applicant in his reply claims that of new duties to the applicant was only the Court should: a pretence and the decision was in fact Declare that the application is admissible the first measure indicating that his ser­ and well founded. vice would be terminated.

1. The first complaint decisions which are disputed were pre­ ceded by a comparative examination The applicant submits that the decision implies that the Commission admits that of 20 March 1968 was taken, as is shown it cannot shelter behind the general pro­ by the letter of 22 March 1968 of the visions of Article 50 of the Staff Commissioner Mr Bodson, without first Regulations of Officials in order to examining the comparative situations of avoid the obligation to conduct a pre­ the officials affected. liminary comparative examination. He goes on to say that the two later Regulation No 259/68 implies that even decisions are only repetitions of the in the case of officials of Grades A 1 first. and A 2 a similar examination must The defendant takes the view that the precede any measure terminating the minutes of the meeting held by the service of officials. The reference to a Commission on 20 March 1968 show comparative examination in the minutes that a first examination of the com­ produced by the Commission are only parative situations of the officials affec­ formal expressions. The letter of 22 ted had already taken place before the March 1968 proves that the comparative adoption of the decisions made on the examination was limited to taking note same day relating to the modifications of a previous proposal by the applicant of the assignment of duties. that he should be included among the The contested measure of 20 March officials who were contemplating volun­ 1968 is a provisional modification of the tary retirement from the service, whereas assignment of duties but is not the he had withdrawn this proposal, which necessary condition precedent to a meas­ had from the beginning been condi­ ure terminating the service of officials. tional, on 8 March, and notified the Moreover, several officials who had Commissioner Mr Bodson of this with­ similarly been assigned different duties drawal on 11 March 1968. on a provisional basis were subsequently The Commission therefore based its confirmed in these new posts. decision to exclude him from considera­ The decision of 26 June 1968 terminat­ tion upon a reason which did not exist ing the service of the applicant created and it should therefore be annulled for a situation which was fundamentally lack of any such reason. different from the one arising out of the By stating that the notification of 11 decision of 20 March and each of these March 1968 was out of time and by two measures could have been taken referring to the fact that the new detail­ independently of the other and cannot ed list of posts had already been drawn be regarded as a mere repetition of the up the Commissioner, Mr Bodson, must other. be deemed to have indicated that, even Furthermore, the defendant asserts that before this date, the members of the the decision of 26 June 1968 was in fact Commission expected that the voluntary preceded by a comparative examination retirement of the applicant would facili­ as is shown by the minutes of the meet­ tate a solution of the problem of staff ing of the Commission on 26 June 1968 reductions. As in the meantime the and in particular by the words 'having applicant's situation had changed, the

tion is deemed to be defective, it did The defendant replies that officials in not determine the final decision to Grades A 1 and A 2 are a special terminate the service of the applicant. category and there is a special pro­ This was only made on 26 June 1968 cedure for appointing and dismissing after another comparative examination them. Although the measures for com­ and at this date the Commission knew, pulsory retirement provided by the Staff thanks to the letter which the applicant Regulations imply that a statement of sent to President Rey on 14 April 1968, the grounds upon which the decision is that it was not or was no longer his based is always necessary, retirement intention to avail himself of the pro­ under Article 50 of the Staff Regula­ visions of Article 4(3) of Regulation No tions, which only applies to officials in 259/68. Grades A 1 and A 2, is on the contrary exempted from this obligation. 2. Second complaint Article 4 of Regulation No 259/68 did not introduce any additional requirement The applicant submits that, even if the in relation to the rules governing retire­ decision of 26 June 1968 is presumed ment under Article 50 of the Staff to have been taken after a comparative Regulations and in the present case the examination of the cases of the indivi­ defendant, in the exercise of its dis­ dual officials affected, the grounds upon cretionary powers, is not even obliged which it is based are inadequate in to disclose the reasons upon which the particular for the purpose of their re­ decision of 26 June 1968 was based. view by the Court. The defendant states as a general pro­ The decision does state that a compara­ position: tive examination was carried out but it (a) That the comparative examination does not say whether this examination covered all the officials in Grades covered all the senior officials, Directors- A 1 and A 2 including Principal General, Directors and Principal Advisers: Advisers. (b) The essence of a discretionary deci­ In addition, although in the case of sion is that the various factors taken Grades A 1 and A 2 officials the Com­ into account by the Commission

when it makes an assessment, which at least did not adequately answer the cannot be subject to review, of the applicant's observations. interests of the service and the The defendant states that it based its exigencies arising from them, are not final decision on the objective facts con disclosed, since the grounds of the tained in this letter which enabled it to decision relating in particular to the evaluate the seniority, the family applicant's professional ability and responsibilities and the scientific training the general nature of his personality of the applicant. are not subject to review by the To plead in his reply the absence of Court. any answer to his appeal through The applicant's claim that the contested official channels amounts to raising a decision was based on a consideration fresh issue which is inadmissible. which had nothing to do with the Further, this submission is unfounded examination of the comparative merits since the complaint against the provi of the persons concerned is not support sional decision had no purpose following ed by any evidence or by an offer to the adoption of a final measure. produce such evidence.

cant in his post or in another Directorate mission on each occasion examined all after the departure of Mr Noel Mayer, the personal files. but this post was only advertized as be ing vacant in October 1968 so that the 4. Fourth complaint applicant could not offer himself as a candidate. The applicant criticizes the decision of Although it has to be admitted that the 26 June 1968 for referring in one of its criterion of nationality may be taken into recitals to the 'observations' contained account in considering the different in the letter which he sent to the defen

affecting a number of officials and just as important, that is to say, personal thereby based it on incorrect grounds or capabilities, the ability to run an

important administrative unit, the 7. Seventh complain personality of the officials concerned and the allocation of posts on a geo­ The applicant submits that the decision graphical basis, all had to be taken into of 20 March 1968 which was repeated consideration. on 26 June 1968 was a concealed dis­ The defendant states that considerations ciplinary measure in that it was based relating to its concern to uphold the upon a comparative examination of cases principle of geographical balance at the of the officials affected which led the level of the post of Director in the Commission to appoint in January 1969 Directorate-General for Transport could another official as Director of the legitimately have arisen which made it Directorate for Transport Rates and undesirable to 'remove Mr Noel Mayer Conditions. from the staff in preference to Mr The fact that this measure was taken Reinarz and to designate the latter as without giving any reason for a dis­ the successor to Mr Noel Mayer. ciplinary measure and outside the pro­ cedure prescribed in Annex IX to the 6. Sixth complaint Staff Regulations shows that it was a The applicant submits that an objective concealed disciplinary measure amount­ ing to a misuse of powers. consideration of the history of his career made it imperative for him to be The defendant contends that there is no kept in the service. Therefore by ter­ reason to suppose that the preference minating his service the Commission given to the other official could have did not act in the interests of the the effect of transforming the contested service. decision into a concealed disciplinary measure. His personal file contained no reservation and he was the only official who had Moreover, as Article 4(4) or Regulation served in the ECSC and the EEC. No 259/68 provides that measures ter­ The defendant submits that it has a minating the service of officials shall in discretionary power in these matters. no way constitute disciplinary measures, A value judgment, which by its very it would have been illegal to apply to nature cannot be verified objectively, such termination the procedure of Annex had of necessity to be made on the IX to the Staff Regulations. In addition, applicant's personality, which was not the recitals to the contested decision recorded on his personal file, since he show that it was not in any way was a senior official. disciplinary.

Admissibility

4 The defendant regards the application as inadmissible in so far as it refers to the measures of 20 March and 30 May 1968 which it submits are not decisions adversely affecting an official within the meaning of Article 91 of the Staff Regulations. 5 The decision of 20 March 1968 constitutes a transfer. Although such a measure falls in principle within the discretionary power of the administration to organize its departments, it may however in certain circumstances amount to a measure adversely affecting an official. 6 To that extent the application is admissible.

7 During its meeting on 30 May 1968 the Commission considered the adoption of a measure terminating the service of various officials in Grades A 1 and A 2 including the applicant and instructed the President to inform the officials concerned so that they could submit any comments they wished to make before the Commission made its final decision.

8 Having regard to the fact that inclusion in the list provided for by Article 4 of Regulation No 259/68 is not required for officials of Grades A 1 and A 2, this resolution was only a declaration of intent which can have no legal effect but which was intended to be and has in fact been the subject of a new resolution.

9 To that extent the application is therefore inadmissible. 10 However, the applicant takes the view that this decision as well as the one adopted on 20 March forms part of a whole series of measures which amount to an abuse or misuse of powers and that the complaints made arising out of them must in any event be examined in connexion with the principal claim.

15 Such a discretionary power presupposes considerable freedom of decision and at the same time a scrupulous examination of the facts of each case.

16 The latter consideration is necessary as a guarantee that the said discretion shall be exercised with full knowledge of each case.

17 In the present case this requirement implied the consideration of the com­ parative qualifications and situations of the officials whose retirement from or retention in the service had to be considered.

18 It follows from the schedule to Document G (68) 175 A 1 of 24 June 1968 that at its meeting of 20 March 1968 the Commission intended to draw up a provisional list of officials of Grades A 1 and A 2 likely to be affected during the following weeks by a measure terminating the service of officials.

19 The letter sent to the Director-General for Transport on 22 March 1968 by the member of the Commission responsible for this Directorate-General shows that when the Commission discussed this matter on 20 March it was unaware that the applicant no longer intended, as he had previously stated, to retire from the service voluntarily and had duly informed his superior of his change of mind. 20 As a result therefore of a mistake of fact he was not included in the examina­ tion of the comparative qualifications and situations of the officials affected which the Commission carried out.

21 In fact, the Commission, convinced that the applicant still wished to leave the service, considered that it was released from the necessity of making a difficult

27 However, the facts of this case make it clear that the personal files examined were those of all the officials whose future in the service was still in doubt and that the decisions taken on 20 March with regard to the allocation of posts were not called in question so far as the Directorate for Transport was concerned.

28 It was only to this extent that the applicant's case was compared with those of other servants. However, because of the abolition in the meantime in the 1968 budget of the post of Principal Adviser in the Directorate-General for Transport and having regard to the applicant's highly specialized trainin g, this limited comparative examination made it virtually impossible for him to be excluded from a measure terminating the service of officials.

29 Further, the applicant submits that one of the four Directors involved was to reach the retirement age in September 1968 and was due to retire at that time.

30 In spite of this the Commission passed over the applicant and on 20 March 1968 gave this Director one of the three remaining Directorates and later confirmed this posting with the intention of allocating the post afterwards to an official of the same nationality.

JUDGMENT OF 6. 5. 1969 — CASE 17/68

31 The applicant regards this procedure as an infringement of Articles 7 and 27 of the Staff Regulations.

39 The facts in the present case show that a Director was kept in his post, even though he was near the end of his career, mainly to facilitate his replacement at a later date by a servant of the same nationality.

40 Moreover the rationalization measures which the Commission was required to take consisted mainly in effecting considerable reductions of the number of servants in particular those of the same grade as the applicant.

41 The dismissal in such circumstances of officials in the service, on the ground that they are redundant, when their retirement from the service results soon

REINARZ v COMMISSION

afterwards in the promotion of servants of a lower grade to the posts which they held, cannot be accepted in principle. 42 Otherwise the principle that proper regard should be had for the career pros­ pects of officials would be called in question without this being absolutely necessary, and in the special conditions applicable to the task imposed by the Merger Treaty compliance with this principle had to take precedence over the considerations relating to the composition of the staff of the Communities on a mainly geographical basis.

43 The complaints that there was no consideration of comparative merits and that Articles 7 and 27 of the Staff Regulations were infringed or at least wrongly applied therefore appear to be well founded. The decisions of 20 March and 26 June 1968 must therefore be annulled.

49 Moreover it is for the Commission by virtue of Article 176 of the Treaty to take the necessary measures to comply with the judgment of the Court of Justice.

50 It is therefore unnecessary to decide upon the claim for a declaration or upon the claim for damages.

Costs

51 Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

JUDGMENT OF 6. 5. 1969 — CASE 17/68

52 As the defendant has failed in its submissions it must therefore be ordered to pay the costs.

3. Declares that it is unnecessary to decide upon the remainder of the claim;

4. Orders the Commission of the European Communities to pay the costs.

Mertens de Wilmars Monaco Donner

Delivered in open court in Luxembourg on 6 May 1969.

A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber