C-21/68

1. There is no provision in the Staff appointing authority the power to Regulations either for re-assessment assign officials in the interests of the or for re-classification as such. Under service to the various posts which the provisions of the Staff Regula­ correspond to their grade. tions, the career of an official pro­ 3. Article 45 does not compel the ap­ gresses on the basis of a system of pointing authority to state the reas­ categories and consecutive grades, ons for decisions relating to promo­ commencing with the grade in which tion, in particular with regard to un­ he was recruited. successful candidates. It is for the party claiming that such 2. The Staff Regulations do not give a decision has no adequate basis to officials a right to any particular post; give grounds for or supply proof of on the contrary, they leave to the his allegation.

In Case 21/68

Andre H. A. C. M. Huybrechts, an official of the Commission of the European Communities, 41, Chemin Ducal, Wezembeeck-Brussels, assisted by Marcel Grégoire, Advocate at the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 boulevard Grande-Duchesse Charlotte,

applicant,

V

Commission of the European Communities , represented by its Legal Adviser Louis de la Fontaine, acting as Agent, with an address for service in

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

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure 1968 to the post of Principal Adminis­ trator in the Division of Development The applicant entered the service of the Studies within Directorate-General VIII, EEC Commission on 16 June 1958, entitled the Directorate-General for De­ when he was given a Grade A 5 post in velopment Aid (Schedule 2 to the ap­ the Directorate-General for Overseas plication). On 13 June 1968 Staff Bul­ Countries and Territories. Shortly after­ letin No 22 carried a vacancy notice wards he was placed in Grade A 4 numbered COM/40 relating to a Grade (Principal Administrator) in which grade A 3 post with duties corresponding to he was integrated on 1 January 1962. those of Head of the Division of De­ By decision of 23 February 1966, which velopment Studies (Schedules 3 and 4 took effect as from 1 October 1965, he to the application). was appointed head of the special de­ On 24 June 1968 the applicant made a partment for Development Studies with­ complaint through official channels seek­ in the same Directorate-General VIII ing: (now the Directorate-General for Over­ — classification in Grade A 3 and the seas Development). His title as Principal alteration of his title of Head of Administrator was 'converted simultane­ Division:

The Commission decided on 17 July Studies Division — Directorate B — 1968 to fill the vacant post by appoint­ Directorate-General VIII—Brus­ ing Mr Dieter Frisch Head of the De­ sels (Vacancy Notice No COM/­ velopment Studies Division (Schedule 9 40); to the application). 2. In exercise of its unlimited jurisdic­ On 7 September 1968 the applicant tion, hold that: lodged the present application at the (a) The applicant must be classified Court Registry. in Grade A 3, at the step in that After hearing the report of the Judge- grade corresponding to the one Rapporteur and the views of the Ad­ currently occupied by him in vocate-General the First Chamber of the Grade A 4; Court made an order on 12 February (b) The applicant's present title — 1969 requesting the defendant to pro­ Head of Department — must be duce no later than the day fixed for the altered to that of head of Division; oral proceedings: (c) The applicant must perform the (a) Document SEC (68) 444 of 7 Febru­ duties currently assigned to the ary 1968 entitled 'Re-organization — Head of the Development Studies Re-allocation of A 3's', and Division — Directorate B — Direc­ (b) The detailed list of posts for Direc­ torate-General VIII — Brussels; torate-General VIII—B before and after the re-organization. B — Secondarily: These documents were filed on 21 1. Annul the contested decisions, February 1969. The parties presented namely: their oral submissions at the hearing on (a) The decision by the defendant of 25 February 1969, and the Advocate- 17 July 1968 published in Staff General delivered his opinion at the Courier No 26 of 24 July 1968 hearing on 13 March 1969. appointing Mr Dieter Frisch—an official in Grade A 3 — Head of the II — Conclusions of the Development Studies Division — Directorate B — Directorate-Gen­ parties eral VIII — Brussels (Vacancy The applicant claims that the Court Notice No COM/40); and should: (to) So far as may be necessary, the A — In the first place: decision by the defendant notified 1. Annul the contested decisions, to the applicant in a letter dated namely: 12 June 1968 altering his previous (a) The decision by the defendant of appointment; 17 July 1968 published in Staff 2. In the exercise of its unlimited juris­ Courier No 26 of 24 July 1968 ap­ diction, rule, or at least declare, that pointing Mr Dieter Frisch—an the applicant is or must be pro­ official in Grade A 3 — Head of the moted to Grade A 3, at the step in Development Studies Division—­ that grade corresponding to the one Directorate B — Directorate-Gen­ currently occupied by him in Grade eral VIII—Brussels (Vacancy A 4, and appointed Head of the De­ Notice No COM/40). velopment Studies Division — Direc­ (b) The decisions by the defendant torate B — Directorate-General VIII — 'published' on 12 and 13 June Brussels (Vacancy Notice No COM/­ 1968 respectively altering the ap­ 40); plicant's appointment and adver­ Further, declare that the procedure for tising the vacant post in Grade A filling the above-named post should be 3 of Head of the Development started anew;

1. Dismiss both the main application and the subsidiary one as being un­ The substance of the case founded; A — The principal conclusions in the 2. Order the applicant to pay the costs application of the proceedings. In its rejoinder it claims that since the 1. Failure to observe the principle of Court does not have unlimited juris­ correspondence between grade and diction in the present case it cannot, if post it annuls the Commission's refusal of the applicant's request for re-classifica­ The applicant claims that the contested tion, itself order that re-classification; decisions were taken without regard to it must refer the case back to the Com­ the fundamental principle according to mission in accordance with its own case- which any re-assessment of a post must law. be compensated by an adjustment in In addition, if the decision to appoint grade. Mr Frisch were annulled the Court As early as 1965 the detailed list of posts could not at the same time promote the for Directorate-General VIII included applicant, since that promotion can only under the Studies Directorate a Division be made in accordance with the pro­ of Studies, but since no A 3 post was cedure laid down by Article 45 of the allowed for under the budget this ad­ Staff Regulations. ministrative unit became a 'division in the process of formation' or, more pre­ cisely, a 'special department'. When III — Submissions and argu­ finally in 1968 this A 3 post became ments of the parties available to the Commission, it was natural for it to have converted the The submissions and arguments of the special department into a division in parties may be summarized as follows: accordance with the said list of posts.

The conversion would not in any case vision the applicant's new appointment have entailed, with regard to the post is found to be perfectly in order. The of Head of Division, any alteration in decision of 23 February 1966 making the duties, powers and prerogatives at the applicant responsible for the Special taching to the previous post of head of Department of Development Studies a special department. Had this been stated that his administrative position done in the present case it would not was that of 'Principal Administrator have created a new post but simply have established in Grade A 4'. It conformed

Since that of his title to that of Head of Division. department no longer existed in the On all those grounds there was no justi Commission's new detailed list of posts fication for the vacancy notice, or for the Commission could not keep the ap altering the applicant's appointment. plicant in it but had to appoint him to Moreover, the fact that this appoint a new post, still in career bracket A 5- ment had been drawn up at the same A 4. This it did by appointing him time as the vacancy notice is sufficient Principal Administrator in the new di to show that the post in question was in vision. reality not vacant, but had illegally been It was not possible to make a decision made so. appointing the applicant to a post in The defendant replies in its statement Grade A 3 since this would have been of defence that the departmental re-or contrary to both Article 7 and Article ganization which followed on the merger 45 of the Staff Regulations, progress of the executives compelled the Com

Those those posts can be considered as al cases arose from the fact that prior to ready 'occupied' in the sense favoured by the entry into force of the Staff Regu the applicant. To fill them the Com lations certain heads of division (of mission had to re-appoint by decision whom Mr Maudet was one) had been all its officials. Some officials found classified in Grade A 4 and that the themselves assigned to duties identical Regulations contained transitional pro with or similar to those previously exer

JUDGMENT OF 6. 5. 1969 — CASE 21/68

The post in which Directorate-General VIII and the units the applicant was established until the subject to its control kept the same re-structuring of the departments was functions, the same detailed lists of that of head of a special department, posts, and the same complement of staff which was quite simply a Grade A 4 as beforehand: they were not affected post, whereas the present post is that by the re-organization which led to the of Head of Division, in Grade A 3. creation in other sectors of new Direc Whilst the structure and the functions torates-General. of the two administrative units are com There can thus be no doubt that the parable they are not identical, as is post in question was 're-assessed'.

not in Grade A 3. Giving him an addi motion. tional alcoholic drinks parcel cannot have Nor is it correct to assert that the ap the effect of altering his functions from plicant's request is not a request for re- that of head of a special department to grading similar to that before the Court those of a head of division: it is no more in Joined Cases 20 and 21/63. Whilst than a benefit which bears no relation it is true that the applicant was not to the administrative status of the re expressly and formally obliged to carry cipient and which was also given to all out the duties of Head of Division, it is the other heads of special departments also true, that, as a matter of fact, he and to the assistants of the directors- was responsible for an administrative general. unit which was a division in the process If one were, in fact, to accept the ap

HUYBRECHTS v COMMISSION

There is there present he is subject to a head of fore no justification for claiming that division within the administrative Articles 7 and 45 are irrelevant to the unit once run by himself; present problem. — his former duties were more interest ing and placed him on a higher 2. Detraction from post level; — previously his name appeared in the The applicant claims that the decisions detailed list of posts for Directorate- in question seriously detract from the General VIII as being responsible for post occupied by him and, ipso facto, the unit in question, in the same way as the names of the heads of divis from his status, both as regards the nature of his powers and as regards his ion, but now he no longer appears on position in the administrative hierarchy. that list.

The powers involved in exercising the applicant was classified in Grade A 4 in authority of superior rank accorded accordance with the table of definition

The applicant says that the Commission which is comparable in each in­ stance'. filled the vacant post by way of promo­ tion, since Mr Frisch, too, was an official The documents produced by the defend­ in Grade A 4. That being so it had to ant include neither the personal files follow the procedure under Article 45(1) nor the periodic reports of Mr Frisch of the Staff Regulations, since otherwise and of the applicant, nor the opinion of the appointment would be void, and to Mr Hendus, Director-General for De­ consider in accordance with that pro­ velopment Aid, nor, lastly, the proposals vision the comparative merits of the made by Mr Rochereau and Mr Levi officials eligible for promotion as well Sandri. It is these proposals, in par­ as of the periodic reports on them. ticular, as well as the detailed report of That procedure was not followed in this the candidates' qualifications drawn up case. by those two members of the Commis­ The defendant replies that the appoint­ sion, which seem in the light of the ment procedure was quite in accordance minutes of the 45th meeting to be the with Article 45(1) of the Regulations. most important pieces of information The Commission did consider the com­ before the Commission. parative merits of the candidates on the The applicant concludes that without basis of all the facts and sources of in­ these documents the Court is not in a formation necessary for that purpose. position to decide whether the conditions To support this claim it produces docu­ described above were observed, and asks ment PERS (68) 876/z of 13 July 1968 that they be produced. and an extract from the special minutes The defendant remarks, on the contrary, of the 45 th meeting of the Cornmission that it is evident from the content of (Schedules 2 and 3 to the statement of the minutes of the 45th meeting of the defence). Commission that the comparative merits The applicant replies that the minutes of the candidates were considered in the of the 45th meeting of the Commission present case. The Commission had be­ produced by the defendant do not help fore it:

— the applications, the particulars of to him in law and to request the Court which had been checked previously to order any measures of inquiry neces by the administration; sary in this respect, that it is, moreover, — the periodic reports on the appli well known that the appointment of Mr cants; Frisch was decided upon well in advance — the personal files of the applicants. of the opening of the appointment pro The differences between this considera cedure. What was involved was a prom tion of the comparative merits and that ise of promotion made to Mr Frisch, condemned by the Court in Case 27/63 his immediate colleague, by Mr Hendus, and Joined Cases 94 to 96/63 are quite Director-General of Directorate-General plain, because in those cases the Com VIII, a promise which was implemented mission had neither periodic reports nor by Mr Rochereau. applications which had been checked, The defendant objects that the decision and because it was not proved that the to appoint the candidate was made on personal files of those concerned had the basis of objective criteria and after been made available to it. a thorough examination of the appli Lastly, the defendant states: cants' personal files.

ality (Case 27/63); 2. Misuse of powers — the Court has always refrained from substituting its own value judgment The applicant claims that if the power for that of the institution concerned to appoint candidates is discretionary, (Joined Cases 27 and 30/64). that does not mean that it can be arbi Secondly, the Commission has no know trary. In the present case, however, the ledge whatsoever of the alleged promise defendant exercised this power in in made to Mr Frisch and can only con terests other than those of the service. firm what is in any case stated in the It should in fact have selected the ap

JUDGMENT OF 6. 5. 1969 — CASE 21/68

In de Cases 18 and 35/65, which lead to the ciding whether such a promise did conclusion that there has been a misuse or did not influence the decision of powers. selecting a candidate, it should be re The applicant closes his argument by called that Mr Rochereau is a member requesting that additional measures of of the Commission and one of the origin inquiry be ordered if the Court con ators of the proposed appointment to siders that some of the facts alleged the post in question, and also collabora have not been sufficiently substantiated.

steps to be taken in creating a single sed on 4 July 1968 by the Staff Com administration within the time-limits set mittee on the incompatibility between by the Treaty of 8 April 1965. For this 'the intended publication of vacant posts purpose the Directors-General had been

asked to submit proposals and sug­ 3. Absence of a statement of reasons gestions concerning the re-structuring of departments and appointments of The applicant raises this argument for officials. The content of this document the first time in his reply. With regard represents no more than working hypo­ to its admissibility, he explains that he theses, in many places very tentative due was not able to plead in the original ap­ to the large number of unknown factors plication the absence of a statement of in the problems involved. At the time reasons because, according to the case- of this document, the die was certainly law of the Court, the administration is not cast: the Commission still did not not obliged to give formal reasons, for know the number and the grades of the its choice either in respect of the appli­ posts which the budgetary authorities cant appointed or in respect of the un­ would be able to grant it. In fact it was successful applicant. But that in no way not until 29 February 1968 that the implies that such decisions must not Council drew up the draft detailed list of contain an indication of the reasons upon posts, finally adopted on 25 March 1968, which they are based and the validity and it was not until after that date that of which can be verified by the Court. the Commission was able to decide its The defendant emphasizes the discre­ preference in the matter of re-organiza­ tionary nature of its power of appoint­ tion. In the circumstances it is clear that ment which is not contested but does the proposals of the Directors-General in not explain its reasons for preferring Mr that document were in no way binding Frisch to the applicant, who had occu­ on the Commission, which made its de­ pied the post in question for almost cision in accordance with the provisions three years to the entire satisfaction of of the Staff Regulations. the Commission. The minutes of its (d) Lastly, as regards the haste with 45th meeting produced by it throw no which the Commission decided to ap­ light on the subject. point Mr Frisch, one cannot conclude In those circumstances there can be no from the fact that the administration effective judicial review of the reasons acknowledged the justification of the on which the disputed decision of pro­ point made by the Staff Committee at motion was based. its meeting on 4 July 1968, that the The defendant, after noting that the Commission for its part admitted that applicant has raised this argument only publication of the vacancy notices had in his reply, answers that the reason on been made prematurely. The note from which the contested decision was based the Central Information Committee of is quite clear. It was indicated in the 19 July 1963 refers to the administration and not to the Commission, which did statement of defence (page 10), where not share the views on this point of the it is stated that the Commission appoin­ Directorate-General of Administration. ted Mr Frisch because it considered that

2 The application is admissible.

The substance of the case

3 The applicant's principal claim is that the post of Head of the Special De­ partment of Development Studies in D.G. VIII—B, occupied by him from 1 October 1965 to 20 June 1968, was re-assessed as a post of Head of Division when the new detailed list of posts of the single Commission was established.

4 Since this re-assessment did not entail any essential alteration of the powers and duties attaching to the post of head of a special department the applicant claims that he should have been re-classified in Grade A 3, the grade cor­ responding to the post of head of division.

5 Since this was not done the contested decisions violate, according to the applicant, the principle of correspondence between grade and post and detract from the post held by the applcant and from his status.

6 There is no provision in the Staff Regulations either for re-assessment or for re-classification as such.

12 In these circumstances there is no legal foundation for the applicant's claim that he should be appointed to that new post by way of re-classification. 13 For the purpose of filling the new post, the appointing authority was bound to follow the procedures laid down by the Staff Regulations, in particular by Article 29(1), which states that it shall fill vacant posts by transfer, by pro­ motion and by competition.

14 The only way in which the applicant could be appointed to the vacant post in Grade A 3, bearing in mind his classification in Grade A 4 and Article 7(1) of the Regulations, was by promotion or by competition.

15 In the present case the appointing authority filled the vacancy by way of promotion.

16 On 17 July 1968 it decided to appoint Mr Dieter Frisch to the vacant post and rejected the applicant's application.

17 As a subsidiary point the applicant claims that the said decision is irregular in that it contains no statement of reasons, constitutes a misuse of powers and was adopted in contravention of Article 45 of the Staff Regulations.

18 As to the first submission, the applicant maintains that the information sup­ plied by the defendant both in the minutes of its 45th meeting and in its pleadings gives no indication of the points of fact or of law which could justify the contested decision. 19 Article 45 of the Staff Regulations does not compel the appointing authority to state the reasons for decisions relating to promotion, in particular with regard to unsuccessful candidates.

26 It was to be expected that during these preparations departments should con­ sider the different possibilities as to the promotions, transfers or appointments required by virtue of this general re-organization.

27 That the documents criticized were purely preparatory documents with no decisive character is made clear moreover by the fact that for a large number of officials, including Mr Frisch, a number of new appointments or pro­ motions was considered.

28 In any case that fact cannot be relied on as being of such a nature as to indicate a misuse of powers in the present case.

29 Lastly, the applicant considers that the haste with which the appointing authority adopted the decision to make the promotion in question is, taken together with other factors, a sufficient indication to enable one to conclude that there was a misuse of powers in the present case.

30 In this connexion he claims that the said authority declared the post vacant and proceeded to make the contested promotion before it replied to his com­ plaint through official channels, notwithstanding that the administration had conceded that it was appropriate to delay the publication of vacancy notices until the officials concerned had been able to submit complaints against their appointments.

31 As regards the date of the vacancy notice it should be remarked that the facts in the case, show that Vacancy Notice COM/40 was published on 13 June 1968, whereas it was not until the meeting of the relevant committee on 4 July 1968 that the administration agreed to delay publication of the vacancy notices.

37 The minutes of the Commission's 45th meeting reveal that all the applications were communicated to the Commission after the information in them had been checked, and that the periodic report and the personal file of each candidate was available to the Commission.

38 The same minutes state that the Commission considered the comparative merits of the applicants and of the periodic reports on them.

39 The applicant has shown no reason why this should be doubted.

40 Furthermore, an examination of the periodic reports on the applicant and on the successful candidate justifies the conclusion that the promotion decision in question was not taken without due regard for, or in ignorance of, the objec­ tive facts in the case.

41 On these grounds this submission must be rejected as unfounded.

Costs

THE COURT (First Chamber)

hereby:

1. Dismisses the application.

2. Orders the parties to bear their own costs.

Mertens de Wilmars Donner Monaco

Delivered in open court in Luxembourg on 6 May 1969.