C-30/68

JUDGMENT OF THE COURT (FIRST CHAMBER) 28 MAY 19701

Max Lacroix

ν Commission of the European Communities

Case 30/68

Summary

1. Officials — Disputes with the administration — Appeal through official channels lodged within the period for appealing to the Court — Time-limit for appealing to the Court preserved (Staff Regulations of Officials of the EC, Articles 90 and 91)

JUDGMENT OF 28. 5. 1970 — CASE 30/68

v

Commission of the European Communities, represented by its Legal Adviser Pierre Lamoureux, acting as Agent, with an address for service in Luxembourg at the offices of Émile Reuter, 4, boulevard Royal,

defendant,

Application :

— for the annulment of the defendant's decision of 21 May 1968 in so far as it did not assign the applicant to a post in his grade and for the annulment of all deci­ sions to appoint or assign officials which affect the applicant adversely,

JUDGMENT

Issues of fact and of law

I — Facts and procedure the administration he was asked on 21 May 1968 to state whether or not he accepted The facts and procedure may be summa­ the post of Adviser to the head of one of the rized as follows : divisions of the Directorate of Administra­ The applicant, who entered the service of tion in the Directorate General for Personnel the Commission of the EAEC on 6 October and Administration (a post which was in 1960, was established as Head of Division the career bracket immediately below the (Grade A 3) from 1 January 1962. career bracket for his grade). He accepted it Within the context of the reorganization of whilst stating that, first, a measure of this

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He stated that he hoped to The Advocate-General delivered his opin be assigned to another post as soon as ion at the hearing on 22 April 1970. possible where his abilities could be more fully employed. The applicant was notified that he had been II — Conclusions of the parties assigned to the post in question by a letter of 22 May 1968 from the President of the Commission. It was specified in this letter In the application the applicant claims that that he would have a priority right of the Court should : transfer to any post corresponding to his grade which might fall vacant or be created, 1. order the necessary measures of inquiry provided that he was suitable for the post into the processes which led to the in question. decision concerning the applicant taken On 14 August 1968 the applicant submitted by the Commission on 21 May 1968 a complaint to the Commission in which (a decision which was confirmed by the he pointed out that fifty-five posts in his implied rejection of the applicant's grade had been the subject of vacancy complaint of 14 August 1968 and by the notices since June 1968 and that he had ap letter sent to him on 6 November 1968), plied for eleven of them in vain and had also into the way in which the posts which applied for two posts in the grade above were declared vacant and for which the him out of the sixteen posts in that grade applicant is eligible have been filled since which had been declared vacant since then and into the number and nature

Registry on 12 December 1968. The written procedure followed the normal (c) the Commission did not observe the course. provisions of Article 4 and possibly After hearing the report of the Judge- Article 29 of the Staff Regulations, Rapporteur and the views of the Advocate- General, the Court (First Chamber) decided (d) the applicant's agreement in fact to to open the oral procedure without be assigned to a post below his grade instituting a preparatory inquiry. was inevitably conditional upon The parties presented oral argument at the the Commission's observing the hearing on 18 February 1970. legal provisions ;

(d) assess the damage suffered by the The submissions and arguments of the applicant owing to these appoint­ parties may be summarized as follows: ments and assignments and owing to all the other facts which are men­ Admissibility of the application tioned in this application or estab­ lished during the action and order The following observations have been made the payment of damages, on the admissibility of the various heads of the conclusions : (e) order the defendant to pay the costs. A — According to the defendant, the In reply the applicant states that: application against the decision of 21 May 1968 is inadmissible because the period laid — he leaves it to the discretion of the down by Article 91 of the Staff Regulations Court to decide whether the application has expired. The applicant cannot claim is admissible as regards the annulment that this period was interrupted by the of the decision of 20 March 1968 to complaint of 14 August 1968 because the assign officials to posts in Grade A 2; subject-matter of this application, the annulment of the decision of 21 May 1968, — he leaves it to the discretion of the Court differed from that of the complaint which to interpret head 3 (b) of his conclusions only asked for the decision to be varied. to mean the following: Moreover, the application should have been submitted against the decision rejecting the — find that the applicant has been and complaint by implication. still is deprived without just cause of a In the reply the applicant states that, as post in his grade and refer him to the regards the respective functions of these Commission so that all the appropriate two methods of recourse, the subject- measures may be taken to comply with matter of the complaint and that of this the judgment of the Court.' application are identical in substance. It follows that the applicant is not out of time In addition the applicant claims that the in contesting the decision of 22 May 1968. Court should : In its rejoinder the defendant adheres to the

Β — According to the defendant, the request (c) The Commission's decisions are suffi for an order that the applicant be no longer ciently described in the application. deprived without just cause of a post in his grade and that all appropriate measures be taken to assign him to such a post is In the oral procedure the applicant stated inadmissible because the applicant is re that he wished to contest in particular questing the Court to give orders to the decisions to fill the sixteen posts in Grade appointing authority calculated to cause the A 3 for which he had applied since 21 May Court to encroach upon the prerogatives of 1968, but that in so doing he was not with that authority. drawing his request for the annulment of the The applicant replies that although in the other decisions to appoint or assign which past the Court had not given orders to the affected him adversely. Commission, it had however not hesitated to state what ought in its view to be done D — According to the defendant, the appli to implement its decisions on the substance cation for the award of damages is in

the Court. He claims that in fact the following grounds: particulars given in the application show that he claims to have suffered damage (a) The period for lodging an application because of the decisions the annulment of had in most cases expired; which he seeks and because of the circum stances surrounding the contested decisions (b) The applicant does not have the which are described in the statement of facts necessary interest to request the annul contained in the application. He maintains ment of decisions to appoint other that the reservation in the conclusions in officials ; respect of 'the facts established during the action' is explained by the request for (c) The applicant has not specified the decisions concerned and cannot there measures of inquiry, and that, moreover, the Court allows this procedure (cf.

tration. On the other hand the comparative ant has already been rejected under examination which led the Commission not heading A; to assign the applicant to a new post in Grade A 3 consists of assessments and value (b) and (d) As all appointments and assign judgments which the Court has always ments might have an effect on his refused to examine. Only exceptional facts

and circumstances can therefore justify an application first before considering candi inquiry. dates who did not have a priority right but The applicant states in his reply first of all that it had come to the conclusion that he that this application is not directed against was not suitable for appointment to those the individual measure whereby his former posts. post was abolished. Then he states that the The applicant replies that it follows clearly statement of facts set out in the application from Article 8 that the Commission could contains facts and evidence to justify the not assign an official to a post below his request for measures of inquiry. He adds grade without sufficient need, which must that the findings of fact stated in the judg be capable of being verified, and that in any ment of the Court in Case 17/68 show that case he should be restored to a post in the the concern to achieve 'geographical corresponding grade as soon as possible. balance' played a part in the grounds for the He claims that standard answers such as decisions taken with regard to the re those given in the letter of 6 November 1968 organization of the departments, so that and the statement of defence are not the inquiry which he requested might have sufficient for the purpose of verifying a particular bearing on this fact. whether the decisions of the Commission were made in accordance with these basic

of posts. It did so by trying to ensure the The substance of the case best use of the available personnel, whilst protecting the interests of officials. The A — Requests for annulment defendant alleges that it is clear that at the end of this process some officials could not 1 — Infringement of Article 8 of Regula be assigned to a post in their grade, others tion No 259/68 of the Council had to be assigned to posts in the career bracket immediately below the one corres The applicant states that it follows from ponding to their grade and, lastly, some the facts which have been set out that the posts could not have been filled as there were Commission was not compelled to offer the no available officials who had the necessary applicant a post below the post in his grade qualifications.

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departments. The defendant's argument suitable. that there was no vacant post but only a This amounts to subjecting officials such as substitution of detailed lists of posts is not the applicant, who are eligible for assign convincing since an official can only be ment to these posts, to an assessment which assigned to a vacant post. He maintains is outside all the regular procedures for that Article 7, upon which the defendant examining applications. The result is a relies, expressly precludes 'an assignment' substantial contradiction between the word being made by 'methods' other than those ing of the vacancy notices which, also, if not laid down by the Staff Regulations, in in the first place, invite applications from particular by Article 4. candidates who have priority rights of In its rejoinder, the defendant alleges that transfer or promotion and the true inten Article 4 of the Staff Regulations refers to tions of the Commission which had already

May 1968. Therefore there has been an 3 — Misuse of powers and infringement infringement of Articles 5(3), 7(1) and 27 of Articles 4, 7 and 29 of the of the Staff Regulations and neither the Staff Regulations and of Article Treaty of 8 April 1965 nor Regulation 8 (2) of Regulation No 259/68 No 259/68 of the Council provides for any exceptions to these articles. The applicant states that in the circum In its statement of defence, the defendant stances which have been described, the true points out that in its reply to Written purpose of the publication from June 1968 Question 144/68 asked by Mr Scelba, the onwards of fifty-five notices of vacancies Commission stated that the reassignment relating to posts in Grade A 3, that is, more of officials which it had just completed was than one fifth of the total number of posts based on the principles laid down in in this grade, could only have been to fill Article 7 of the Staff Regulations and al these posts in the main by promoting though it had achieved some measure of officials from a career bracket below that geographical balance it had been motivated of the applicant or by outside recruitment above all 'by the desire for the efficient to the detriment of the applicant, who was running of the individual sectors of activity thus deprived of the priority right which (OJ, C 112 of 28.10.1968, p. 2.)

In his reply the applicant alleges in particular redress the wrong suffered by the applicant, that: there is nevertheless other damage suffered by him, the amount of which he asks the — the importance which was attached to Court to assess, in particular: the rapid achievement of a better 'balance' was one of the grounds, — non-material damage by reason of the communicated to the applicant by word anxieties and suffering caused by this of mouth, for the decision concerning case; him which was taken on 21 May 1968; — material damage to the applicant due — in its judgment in Case 17/68 the Court to the fact that he was unable to apply held that in fulfilling the rationalization for the posts in Grade A 2 which were mandate given to it by the Merger filled without prior vacancy notices and Treaty, the Commission was not released for which he was eligible under the Staff from the obligations which are the result Regulations; of Article 7 in conjunction with Article 27 of the Staff Regulations; — damage to his professional reputation consisting of a blow to the esteem to — it follows from this case decided by the which he had a claim in the position he Court that the Commission cannot use had held before. the powers given to it under Article 8 of Regulation No 259/68 to remove the In its rejoinder, the defendant states that the applicant from a post in his grade so as applicant has suffered no injury which to facilitate the achievement of a better justifies the payment of damages. It claims 'geographical balance'. that first, an official who has been affected by a measure laid down by Article 8 (1) of In its rejoinder the defendant alleges that the Regulation No 259/68 is in no way to blame applicant has brought no evidence in this for the situation in which he finds himself, respect and that the submission should so that there can be no question of non- therefore be rejected. material damage or of damage to the pro­ fessional reputation of the applicant and, В — Claim for damages secondly, that since the posts in Grade A 2 were not filled by promotion but by re­ In his reply, the applicant states that assigning officials in this grade pursuant to although by the partial annulment of the Article 7 (1) of the Staff Regulations, the decision of 21 May 1968 and the annulment applicant has not suffered material damage of the other decisions contested the Com­ either. mission will be enabled in the main to

4 Although it is true that this letter did not expressly request the withdrawal of the decision in question, it is, however, quite apparent from it that the applicant was trying by this approach through official channels to obtain an amicable settlement of his complaints

5 In these circumstances the period for lodging an application against the decision of 21 May 1968 must be deemed to have been interrupted by the letter of 14 August 1968.

6 Moreover the applicant lodged his application as soon as he received the reply contained in a letter from the President of the Commission dated 6 November 1968.

7 Therefore the application against the decision of 21 May 1968 is admissible.

8 The application seeks the partial annulment of the decision of 21 May 1968 in so far as it did not assign the applicant to a post in his grade.

9 Without formulating other complaints against the legality of the contested measure, the application seeks to establish that there was no need to assign the applicant to a post below his grade because the Commission could have appointed him to a post in his grade on 21 May 1968 and on several subsequent occasions.

15 It follows that the request for partial annulment is not based on the illegality of the contested decision itself, but on the illegality of a series of decisions allegedly associated with it and which relate to the reorganization of departments necessitated by the merger of the executives and which the applicant claims contributed as a whole to deprive him of his rights.

16 However, the question whether those associated decisions affected the applicant adversely and infringed his rights under the Staff Regulations can only be examined in the context of an application properly made against those measures.

17 If not, the Court would be led to a general examination of the need and advisability not only of all the measures involved but also of the whole policy which the Com­ mission felt it should adopt in applying Regulation No 259/68.

18 Such an examination would exceed the limits of the review of legality which Article 91 of the Staff Regulations of Officials empowers the Court to effect.

19 Therefore the application must be dismissed in so far as it is directed against the decision of 21 May 1968.

го The defendant also claims that the application for annulment is inadmissible in so far as it is directed against a number of decisions to appoint officials other than the applicant to posts in Grade A 2 and A 3.

25 Clearly, in order to protect the rights of the defence and of third parties concerned such imprecise requests must be regarded as inadmissible.

26 Although it is true that during the oral procedure the applicant gave somewhat more specific form to his application by pointing to some decisions which he had specially in mind, nevertheless, as this event took place in the last stage of the proceedings it cannot rectify the omissions which have been described.

27 Therefore the second head of the application is inadmissible.

28 Thus the application must be dismissed in its entirety.

Costs

29 Under Article 69 (2) of the Rules of Procedure of the Court of Justice the unsuccess­ ful party shall be ordered to pay the costs.

hereby :

1. Dismisses the application;

2. Orders the parties to bear their own costs.

Monaco Donner Mertens de Wilmars

Delivered in open court in Luxembourg on 28 May 1970.

A. Van Houtte R. Monaco