C-27/68

(Regulation No 259/68 of the Council, Article 4)

2. Officials — Decision adversely affecting — Statement of reasons — Scope (Staff Regulations of Officials of the ECSC, Article 25)

3. Officials — Decisions concerning officials — Review by the Court — Limits

1. In conferring on the Commission shown clearly and unambiguously. power to take measures, in particular The Administration cannot be expec­ pursuant to Article 4 of Regulation ted to go further and give particulars No 259/68, terminating the service of its assessment of him in com­ of individuals consequent upon the parison with each of the other officials rationalization and the reduction of of equal rank who are not the subject staff, the Council did not delegate of the same measure. legislative powers to the Commission but entrusted it with the practical 3. Although the Court may not sub­ implementation of the rules which it stitute its own value judgment for that laid down in that regulation within of the Commission, it may neverthe­ the limits of the jurisdiction confer­ less check whether the decision ter­ red on it by the Treaty. minating an official's service was taken 2. The duty to state the reasons for a having regard to the criteria laid decision adversely affecting an official down in Article 4 of Regulation No is fulfilled when the reasons on which 259/68 and with the object of ration­ the measure in question is based are alizing its departments.

In Case 27/68

Reinaldus Renckens, an official of the European Communities, residing at 78 Route d'Arlon, Luxembourg, represented and assisted by Jacques Putzeys, Advocate at the Cour d'Appel, Brussels, with an address for service

(a) annulment of the decision of 26 June 1968 terminating the applicant's service;

(b) annulment of the implied decision rejecting the complaint lodged by the applicant on 15 July 1968 under Article 90 of the Staff Regulations of Officials of the ECSC against the decision of 26 June 1968 and, in addi­ tion, annulment of the rejection of his application for the vacant post in the Press and Information Office at The Hague;

(c) annulment of the express rejection of the aforesaid complaint contained in the letter of 31 October 1968 from the President of the Commission.

THE COURT (First Chamber)

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

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

bourg. By letter of 22 May 1968, the considerations to be taken into account: President of the Commission informed the ability, efficiency, conduct in the the applicant that, as part of the rational­ service, family circumstances and senior­ ization of departments, his name appeared ity of all officials in the same grade on a list of the officials in respect of (Schedule VIII to the application). whom the Commission intended to take The present appeal was lodged at the measures terminating their service as pro­ Court Registry on 13 November 1968. vided for under Article 4 of Regulation In a separate document on the same No 259/68 of the Council. date, the applicant lodged an applica­ In a letter of 14 June 1968 (Schedule tion for suspension of the operation of II to the application), addressed to the the disputed decisions. President of the Commission, the appli­ These applications were dismissed by cant set out his objections to his in­ order of 15 December 1968. clusion on the aforesaid list. He laid The pleadings of the parties were lodged special emphasis on the fact that a post within the prescribed time-limits and equivalent to the one he occupied at the written procedure followed the nor­ Luxembourg was vacant at The Hague. mal course. On 24 June 1968, the applicant addres­ At the hearing on 14 April 1969 the sed another letter to the President of Court (First Chamber), upon hearing the Commission requesting that, as an the preliminary report of the Judge- alternative, he be assigned to an A5-A4 Rapporteur and the views of the Ad­ post which was due to become vacant vocate-General, decided to open the oral shortly in the Spokesman's Group in procedure without any preparatory in­ Brussels (Schedule IV to the application). quiry. On 26 June 1968, at its 42nd meeting, The oral observations of the parties were the Commission adopted a measure ter­ made at the hearing on 30 April 1969. minating the service of the applicant The Advocate-General delivered his with effect from 1 October 1968 and opinion at the hearing on 4 June 1969. informed him of it in writing on 28 June (Schedule V to the application). II — Conclusions of the On 15 July 1968, the applicant submit­ parties ted a complaint against this decision through official channels. He reiterated A — The applicant claims that the Court his conviction that he fulfilled the con­ should: ditions for appointment to the post vacant at The Hague and challenged the 1. Entertain the action for annulment; reasons given for the decision terminat­ 2. As to the substance of the case,

The applicant argues that the decision, ies. In this instance, the argument put taken on 26 June, to terminate his ser­ forward by the applicant concerning the vice is irregular because, despite the task, validity of the task assigned to the Com­ mission is inadmissible since the dis­ which is in any case invalid, assigned to it by the Council, the Commission has puted decision was taken solely on the no power to take such a measure. basis of Regulation No 259/68. Under Annex I to the Merger Treaty, Moreover, the validity of the said regu­ the Commission is assigned the task of lation cannot be challenged by question­ rationalizing its departments. ing the legality of the said task since As, under the second paragraph of Regulation No 259/68 is founded on Article 9 of the Merger Treaty, the Article 24 of the Merger Treaty pur­ Commission exercises the powers and suant to which the Council, as the com­ jurisdiction which previously devolved, petent body, drafted it. in particular, on the High Authority of This regulation, and more particularly the ECSC under the conditions laid Chapter II thereof, in no way empowers down in the Treaties, it cannot be as­ the Commission to take measures sub­ signed tasks not provided for under the stantially amounting to an amendment Merger Treaty by the Plenipotentiaries of the new Staff Regulations laid down of Member States who signed the afore­ in Chapter I and, even though Chapter said Protocol. II speaks of 'Special measures' the chap­ In entrusting the Commission with the ter forms an integral part of the new power to amend, if only by means of Staff Regulations. The Commission confined itself to the temporary measures, the Staff Regula­ tions issued by the Council of Ministers, administrative implementation of Staff the Plenipotentiaries of the Member Regulations which were issued by the States exercised a delegation of powers competent authority and which clearly involving an amendment of the Treaties took full account of the requirements of which could have been agreed expressly the merger. It is therefore incorrect to only by the high contracting parties. speak of a delegation of powers to the Commission. The Council could not, on the oasis of an unlawful delegation, use Regulation 2. Second complaint No 259/68 as a device for authorizing the Commission to adopt measures creat­ The applicant states that, on the pretext ing exceptions to the Staff Regulations of rationalization, Regulation No 259/68 in the case of members of staff who had introduces emergency legislation con­ not already been specified by reference trary to the general principle of equality to objective and impersonal criteria. of treatment of officials.

of rationalization, it was recruiting others The defendant replies that the reasons for equivalent posts, and dismissed the given for the contested decision could applicant without finding out whether he not be expected to go expressly into could be taken back in a vacant post at every possible alternative solution The Hague. though, needless to say, the Commission As the termination measures had to be duly considered all possible alternatives. taken for the purpose of rationalizing The Commission emphasizes the limits the departments, consideration should imposed on the extent to which the be given to the question whether in fact Court may review the assessments of any such rationalization took place. merit which the Commission is called The applicant states that, as regards the upon to make. Information Department, which was al­ Nevertheless it reels able to rebut the

ready a joint one, three new divisions specific arguments advanced by the ap­ were set up with the result that, after plicant: the merger, the number of officials in­ 1) With regard to the contention that creased from 118 to 173. According to several A3 and A4-A5 posts were de­ him there was no genuine rationaliza­ clared vacant during the weeks previous tion and it is for the Commission to to the contested decision, the defendant prove that there was no possibility of joints out that the applicant is merely retaining him in his grade when the trying to create an 'impression'. The

JUDGMENT OF 2. 7. 1969 — CASE 27/68

tion. It points out that the new detailed of Regulation No 259/68 must be ap list of posts comprises at least 15 posts plied in conjunction with that provided in Grade A which were previously oc for under Article 29 of the Staff Regu cupied by experts on a contractual basis lations; in the present case, the Court or by auxiliary staff. Again, the new should carry out its review under two Directorate-General absorbed certain heads: activities previously carried out by an (a) That of the decision to terminate his other department (such as certain docu services: how the considerations to mentation and analysis activities of the

was considered. If the applicant's con others, was drawn up; by what method tention concerning the burden of proof the selection was made; and whether had to be accepted, the Commission and to what extent the criteria used would be faced with the task of provid were applied not only to his own case ing proof which it is almost impossible but also to officials who were not axed. to supply. The Commission has not in this case The defendant emphasizes that the produced proof that it carried out an qualifications required at The Hague objective assessment. In fact the reasons were very different from those required stated for the decision of 26 June 1968

RENCKENS v COMMISSION

Grounds of judgment

1/2 The application seeks the annulment of the decision of 26 June 1968 whereby the Commission adopted a measure terminating the service of the applicant, and also the annulment of the implied decisions rejecting (a) his complaint through official channels against the said decision and (b) the application for the post of Head of the Press and Information Office at The Hague which he submitted on 14 June 1968; and, finally, the annulment of the express rejec­ tion of the aforesaid complaint by letter from the President of the Com­ mission dated 31 October 1968. The application also seeks a declaration that the applicant has remained an official of the European Communities and that the Commission should duly restore him to his financial position and rights under the Staff Regulations.

JUDGMENT OF 2. 7. 1969 — CASE 27/68

A — Admissibility

3/4 The application, in so far as it seeks the annulment of the implied rejection of the applicant's complaint, has lost its purpose, since the complaint was expressly rejected by letter from the President of the Commission dated 31 October 1968. The application is also inadmissible in so far as it concerns the said letter of 31 October 1968 which did no more than confirm the decision of 26 June 1968, which is also the subject of the application.

5/8 The application is, moreover, inadmissible in so far as it concerns an implied decision rejecting the application by the applicant for the post of Head of the Press Office at The Hague. No post had, in fact, been declared vacant at that date and, in these circumstances, the silence of the Commission could not be regarded as an implied decision rejecting the application. Neverthe­ less, the considerations to which the applicant has drawn attention in this connexion might, in an appropriate case, require to be taken into account in deciding upon the legality of the decision terminating his service. They will therefore be examined when the objections which he has raised against that decision are considered.

RENCKENS v COMMISSION

steps to rationalize its departments following the merger of the executives and fixes a time within which this must be done. The task thus assigned to the Commission does not, however, incorporate any extension of the powers which it already possessed under the Treaties and this is borne out by the statement in the Annex that the task assigned to it must be carried out 'within the frame- work of its responsibilities'. It was therefore the duty of the Commission to effect the rationalization of its departments within the framework of the Staff Regulations of Officials of the Communities as they were at the time or as later amended by the Council, which under Article 24 of the Merger Treaty is alone competent for this purpose. Under Article 24 it was also its duty, in this connexion, to submit proposals to the Council with a view to the prepara­ tion of new Staff Regulations. It is not disputed that the contested decision constitutes an application of Article 4 of Regulation No 259/68 concerning the Staff Regulation of Officials of the European Communities.

19 Annex I to the Merger Treaty did not, therefore, incorporate any delegation of powers whatsoever and the contested decision was taken in implementation of the Staff Regulations as adopted by the Council, which is the competent authority for this purpose.

20 The first head of this submission must therefore be dismissed.

21 The applicant goes on to argue that Article 4 of Regulation No 259/68 is illegal and, because it embodies an improper delegation of legislative powers in favour of the Commission, cannot therefore be used as a basis for the con­ tested decision.

29 The submission must be rejected.

Third submission

30 The applicant maintains that the statement of reasons for the contested measures is purely formal, that it makes no reference to factual considera­ tions which might justify the decisions and that it does not explain how the list of officials affected by the measures of termination of service was drawn up.

31/32 Under the first paragraph of Article 25 of the Staff Regulations of Officials any decision adversely affecting an official shall state the reasons on which it is based. This requirement is met if the reasons on which the measure ad­ versely affecting an official is based are shown clearly and unambiguously.

33/35 In the present case the decision of 26 June 1968 does refer to a number of considerations, such as age, vocational training, reports and family respon­ sibilities, which, after the post occupied by the applicant had been abolished in the new detailed list of posts, were taken into account, in order to demon­ strate the justice of the decision not to re-assign him to another A3 post and, in consequence, to apply the contested measure to him. The Commissiion cannot be expected, as the applicant desires, to go further and give particulars of its assessment of him in comparison with each of the other officials of equal rank who are not the subject of a decision terminating their service. Such comparisons entail complex value judgments relating to individual cases which must not be embodied in the statement of reasons for the contested decision or made known to the person concerned.

43/44 After stating the facts concerning the age and family circumstances of the applicant and the reports on him, the Commission, in its letter of 26 June 1968, justifies the measure of termination of service on the basis that the post filled by the applicant no longer appeared in the detailed list of posts. The defendant justifies its decision not to assign the applicant to another post in Grade A3 by stating that the appointment would have required the appli­ cant to have knowledge other than that which he possessed and would have entailed a period of adjustment to the new duties which, in view of his age, was hardly desirable.

45/47 It is clear from this decision that the Commission had regard to the criteria set out in Article 4 of Regulation No 259/68. It is also clear that, after noting that the applicant's post had been abolished, the Commission considered the possibility of re-assigning him to other posts which were, or were about to become vacant and that it reached a negative conclusion concerning the applicant's suitability for these posts. Thus, the fact that a number of posts were vacant is not one which could invalidate the disputed decision to termi­ nate his service.

48 Finally, the fact relied upon by the applicant that the number of posts in the Directorate-General of Information increased in comparison with the number of posts in the former department, though only to a small extent, in no way lessens the importance of the fact that the applicant's post had been abolished in circumstances which made any re-assignment ultimately depen­ dent on the Commission's assessment of his suitability.

THE COURT (First Chamber)

hereby:

1. Dismisses the application as unfounded in so far as it seeks annul­ ment of the Commission's decision of 26 June 1968 and for the rest as inadmissible;

2. Orders each party to bear its own costs.

Mertens de Wilmars Dormer Monaco

Delivered in open court in Luxembourg on 2 July 1969.