C-18/69
ECLI:EU:C:1970:37
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JUDGMENT OF THE COURT (FIRST CHAMBER) 13 MAY 19701
Bernard Fournier y Commission of the European Communities
Case 18/69
Summary
Officials — Recruitment — Compulsory procedures
The appointment and establishment of with the procedures and requirements laid servants may only be effected in accordance down by the Staff Regulations.
In Case 18/69
Bernard Fournier, a member of the temporary staff of the Commission of the European Communities, represented by Philippe Waquet, Advocate, residing at 36, avenue Georges-Mandel, Paris, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Avocat-Avoue, 34 bis, rue Philippe-II,
applicant,
ν
Commission of the European Communities, represented by its Legal Adviser, Louis de la Fontaine, with an address for service in Luxembourg at the offices of Émile Reuter, Legal Adviser to the Commission, 4, boulevard Royal,
defendant,
Application for the annulment of the implied decision of the Commission rejecting the applicant's request to be established as an official in Grade A 4 and a request for a declaration that he should be established in that grade,
1 — Language of the case: French.
JUDGMENT OF 13. 5. 1970 — CASE 18/69
THE COURT (First Chamber)
composed of: R. Monaco, President of Chamber, A. M. Donner and J. Mertens de Wilmars (Rapporteur), Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts December 1968, was lodged on 21 April 1969.
The applicant was appointed as a member of the auxiliary staff of the EEC in Group I of Category A on 12 August 1964 for a II — Conclusions of the parties period of six months with effect from 1 Sep tember 1964, and had his contract renewed The applicant claims that the Court should : for successive periods until 31 December 1968. — annul the implied decision of refusal by Over the years he applied for various vacant the Commission of the European Com posts and took part in a number of internal munities, competitions: in one instance (Competition No 5768, Annex 55 to the application) he — in doing so, rule that the applicant should was included on the list of suitable candi be established as an official in Grade A4, dates but was not appointed. — order the Commission of the European On 19 December 1968 he submitted a Communities to pay the entire costs. request through official channels 'for his position to be regularized, in particular that The defendant contends that the Court he be established in Grade A 4'. should: By a decision of 23 December 1968 the Commission appointed him to the tem — declare the application inadmissible, or porary staff in Grade В 1 (Step 3) for a alternatively not well-founded; period of three months, and informed him — order the applicant to pay the costs. in a letter of 20 January 1969 'that this post was offered him pending a decision on his appointment as an official'; this contract as III — Submissions and arguments of a temporary servant was extended on a the parties number of occasions, the last time until 30 June 1970. The present application, directed against the The submissions and arguments of the implied decision to refuse his request of 19 parties may be summarized as follows.
FOURNIER ν COMMISSION
A — Admissibility here since the present application has nothing in common with those involving It is alleged by the defendant in the first place the judgments to which the applicant refers. that the application should be declared in According to the defendant the application admissible on the ground that it has no is also inadmissible because in seeking a purpose : establishment of an official is only ruling 'that the applicant should be estab possible where there is a vacant post, and lished as an official in Grade A 4' the appli after an appointment and completion of the cant is asking the Court of Justice to give probationary period described in Article 34 instructions to the appointing authority of the Staff Regulations (first paragraph of which encroach on the Commission's pre
Article 4, Articles 27 and 31 of the Regula rogatives. It refers in this context to the tions). The purpose of this application is judgments of 16 December 1960 (Fiddelaar therefore impossible of achievement having ν Commission of the EEC Case 44/59, Rec. regard to the present legal position of the 1960 page 1093) and 15 December 1966 applicant. (Serio ν Commission of the ECSC, Case Secondly it claims that the application 62/65 [1966] E.C_R_ 571). should be dismissed on the ground that its The Court has allowed applications from purpose is insufficiently defined, for to officials submitting claims under the provi request establishment in a particular grade sions of the Staff Regulations for a grade without indicating either the post or the corresponding to the duties carried out by recruitment procedure relative thereto, and them; but this case-law cannot be relied on a fortiori, to request that 'his position be by the applicant who has never been ap regularized' without further elaboration, pointed an official and who has never has no meaning in law. carried out, in that capacity, duties specific The applicant replies that the object of the ally attached to a permanent post. application is to have his position redefined The applicant replies that the Court of with regard to the relevant legal provisions Justice has unlimited jurisdiction and can and thus to secure an acknowledgement of therefore give a ruling as to which grade the his right to be established. applicant is entitled to claim (judgment of 9 This object is in no way impossible since the June 1964, Reynier and Erba ν Commission applicant's rights have been infringed and of the EEC, Joined Gases 79/63 and 82/63, the duty of the Court is to ensure respect for [1964] E.C_R_ 259; judgment of 19 March legal rights. 1964 Maude t v Commission of the EEC, The applicant claims that the defendant kept Joined Cases 20 and 21/63, [1964] E.C_R_ him arbitrarily in the position of an auxiliary 113). Consequently the Court of Justice can servant for more than four years when such establish the illegality of the downgrading of status cannot continue for more than one the applicant from Category A to Category year ; it failed to respond to his applications B, for his qualifications and references as
for posts and it acted illegally in altering his well as his classification in career bracket A position as an auxiliary servant in Group AI for the duration of his service as an auxiliary to that of a temporary servant in Grade Β1 employee demand that he be classified in when he was entitled to be established in Category A. Grade A. In the rejoinder the defendant points out that Moreover, the Court of Justice has fre the request for the annulment of his classi quently intervened in similar cases to fication in Category B set out by the appli reinstate applicants in accordance with their cant in his reply is inadmissible because it is rights and duties (judgment of *19 March out of time.
Moreover the object of the 1964, Case 18/63 Mrs E. Wollast ν EEC request is incomprehensible: if the Court [1964] E.C_R_ 85; judgment of 1 July 1964, holds that the applicant should be establish Case 26/63 Pistoj ν Commission of the ed in A 4 there is no point in making such a European Economic Community [1964] request and if the Court refuses such estab E.C_R_ 341). lishment but allows the application for the The defendant'sresponse is that the previous annulment of the classification the applicant case-law of the Court cannot be relied on would be without employment.
JUDGMENT OF 13. 5. 1970 — CASE 18/69
The applicant replies that this request was by the capabilities, qualifications and referen implication but necessarily contained in the ces to merit his being appointed. application. Lastly both the letter of 3 April 1968 from The defendant lastly objects to the admis the applicant's superior and that addressed sibility of the application on the ground to him by the Commission on 20 January that the applicant nowhere indicates what 1969 acknowledged the applicant's right to might be the legal basis for the alleged be established. illegality of the refusal which he is chal The Commission cannot rely on a purely lenging and therefore the application does legal formality as an excuse by claiming that not fulfil the requirements of Article 38 (1) a competition is a necessary pre-condition (c) of the Rules of Procedure (judgment of for appointing the applicant.
It has kept 600 14 December 1962 Meroni and Co. v High officials, including the applicant, in the Authority of the ECSC, Joined Cases 46 position of auxiliary staff for years and and 47/59, [1962] E.C_R_ 419; judgment of should now bear the consequences of its 14 December 1966, Alfieri v European Par actions and establish the applicant in con liament, Case 3/66, [1966] E.C_R_ 447). formity with the consistent practice follow The applicant replies that his grounds for the ed in such matters with respect to 'former application were briefly but sufficiently set auxiliary staff'. Once the applicant's right out, namely : infringement of Article 52 of to establishment has been proved, there is the Conditions of Employment for Other no doubt that such establishment can only Servants; misuse of powers constituted by be in Grade A 4. the hostile and unjust attitude consistently The facts are that the applicant was an taken towards him, whether in respect of the auxiliary servant in Category A, Group I, persistent refusal to accord him the proper that is to say, according to the definition in position to which he was entitled as of right, Article 53 of the Conditions of Employment or on the occasion of his classification in of Other Servants, a 'Researcher with a high Category B. degree of experience in one or more fields', which corresponds to the descriptions of the
duties attaching to Category A to be found B — Substance in Article 5 of the Staff Regulations; in the second place his duties cannot be assimilated 1. Infringement of Article 52 of the Con to those of Category B which are 'executive ditions of Employment of Other Servants duties which require an advanced level of and infringement of the applicant's rights secondary education or equivalent profes sional experience'. The applicant alleges that his contract as an Moreover, the other auxiliary servants in auxiliary servant was renewed on many Group A I who have been established were occasions between 1 September 1964 and 31 established in Grade A 4, the grade which December 1968 whereas Article 52 of the the applicant is seeking. Regulations provides that the period of em The defendant replies that although it is true ployment of auxiliary staff shall not exceed that Article 52 has not been observed that one year unless the servant is a temporary fact alone is not sufficient to confer on the replacement for another member of staff; applicant a right to be appointed an official therefore when this period came to an end in Grade A 4. the defendant should have either terminated The conditions of employment for 'other his employment or confirmed his position servants' contain no provision relating to by making him an established official. the appointment of auxiliary staff as According to the applicant all the condi
officials. For temporary servants, the second tions for establishing him were present. paragraph of Article 8 of the conditions ex In the first place he had applied for many plains that on the expiry of their contracts vacant posts, thereby giving the appointing such servants may be assigned to established authority an opportunity to appoint him, posts in the institution only if they are ap and on the other hand, as shown by the pointed as officials in accordance with the particulars furnished by him, he possessed Staff Regulations.
According to the de-
FOURNIER ν COMMISSION
fendant the same rule must apply a fortiori made should the applicant be successful in a to auxiliary servants. competition. Recruitment of officials is subject to specific Moreover, in giving the applicant a con rules from which the Commission may not tract dating from 1 January 1969 as a deviate as the applicant wishes. The latter temporary servant in Category Β the Com was successful in only one internal com mission not only showed that it did not petition, and even in that case the Commis recognize his right to be established but also sion selected another auxiliary servant who that it had not taken a decision to establish obtained a higher place in preference to him. him without his taking a competition. When the Commission decided to end the employment of all auxiliary servants by 1 3. Misuse of powers and irregular competi January 1969 it substituted for their con
tion procedure tracts as temporary servants, thus giving those concerned an opportunity to be The applicant claims that he is the victim of established. To that end former auxiliary animosity. servants in Category A were classified in two He claims that after applying on 34 occa categories: those who might become sions to take part in competitions, only twice eligible for establishment in Category A, was he told the result of his application. who were employed as temporary staff in He claims that the competitions were a mere Category A, and those who, for various fiction because the results were known in reasons, would not be eligible for establish advance; it is also claimed by the applicant ment in Category A and were employed as that the only reason he never had any temporary staff in Category B. That was the success in these irregular procedures was position of the applicant and, moreover, because of the animosity of a number of his says the defendant, it was on humanitarian superiors and colleagues. grounds that he was offered this contract of The defendant replies that no proof has been employment when initially it had been given of this alleged misuse of powers. intended to dispense with his services al As regards, first of all, the failure of the together in view of his inadequate per applicant's applications to meet with any formance. response it observes that in 26 of the 34 cases competitions did not in fact take place in the
2. Infringement of the applicant's vested end ; in the other cases the delay complained rights of was due to the fact that the administra tion only notified the unsuccessful candida Next, the applicant alleges that the defen tes after the appointing authority had made dant acknowledged his right to be establish its choice. ed both in a letter from Mr de Monts of Moreover, the failure to establish the appli 3 April 1968 and in the note from the Com cant was due to the fact that the selection mission of 18 December and in the letter of boards dit not consider him suitable for the 20 January 1969 addressed to him by the post he sought.
This removes any suspicion Director General for Personnel and Ad of misuse of powers, in the absence of a ministration. claim that the members of the selection Such recognition, even if it were to con board failed in their duty to be objective by stitute irregular establishment without a allowing themselves to be influenced by the competition, has created a right for the alleged intrigues of certain officials. applicant for which he claims recognition. The defendant replies that it has never IV — Procedure acknowledged that the applicant had a right
to be established. The letter of 3 April 1968 On 17 September 1969 after hearing the from Mr de Monts merely spoke of a views of the Advocate-General and re possible establishment, and the letter of 20 ceiving the written observations of the January 1969 should be interpreted as an parties, the Court decided to reserve the offer of a contract as a temporary servant in defendant's objection of inadmissibility for the expectancy of an appointment to be the final judgment.
JUDGMENT OF 13. 5. 1970 — CASE 18/69
After hearing the views of the Advocate- course.
General and the preliminary report of the The parties presented oral argument at the Judge-Rapporteur the Court decided to hearing on 4 February 1970. open the oral procedure without any pre The Advocate-General delivered his opinion paratory inquiry. at the hearing on 11 March 1970. The written procedure followed the normal
Grounds of judgment
1 The applicant was engaged on 12 August 1964 as an auxiliary servant of the EEC in Group I of Category A for a period of six months, and his contract was extended by successive periods until 31 December 1968.
2 On 19 December 1968 he submitted a request to the Commission under Article 90 of the Staff Regulations asking to be established in Grade A 4.
3 On 23 December 1968 he was appointed a temporary servant in Grade В 1, Step 3, for a period of three months which was later extended by successive periods until 30 June 1970.
4 The application is for the annulment of the implied decision refusing the request for establishment resulting from the failure of the Commission to reply within a period of two months to the applicant's complaint through the official channels and for a ruling that the applicant is to be established in Grade A 4.
Admissibility
5 The applicant bases his request for establishment on the fact that he remained an auxiliary servant in the service of the Commission for several years, whereas under Article 52 of the Conditions of Employment of Other Servants the period of employment of an auxiliary servant may not exceed one year unless he is a tem porary replacement for another member of staff, and besides this on the fact that his superiors in the service have acknowledged his eligibility for a Grade A 4 post.
6 He adds that during the preceding years he applied on a number of occasions for vacant posts, in particular those in Grade A to be filled by way of competition, and he suggests that irregularities occurred in connexion with these competitions.
FOURNIER ν COMMISSION
7 None of these competitions however has been made the subject of a complaint or an application for annulment by him.
8 Even if the illegality of the successive extensions of his contract alleged by the applicant were established, his complaint through official channels and his applica tion to the Court have as their object something which the Commission has no power to do because the appointment and establishment of servants may only be effected in accordance with the requirements and procedures laid down by the Staff Regulations.
9 Furthermore he has failed to indicate the legal basis for any part of his application.
10 Accordingly the application must be dismissed as inadmissible.
Costs
11 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
12 The applicant has been unsuccessful in his claims.
13 However, under Article 70 of the Rules of Procedure in proceedings by servants of the Communities institutions shall bear their 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 Treaty establishing the European Economic Community especially Article 179; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
OPINION OF MR ROEMER — CASE 24/69
Having regard to the Staff Regulations of Officials of the European Communities, especially Article 91 ; Having regard to the Conditions of Employment of Other Servants of the European Communities, especially Article 52;
THE COURT (First Chamber)
hereby :
1. Dismisses the application as inadmissible;
2. Orders each party to bear its own costs.
Monaco Donner Mertens de Wilmars
Delivered in open court in Luxembourg on 13 May 1970.
A. Van Houtte R. Monaco
Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 11 MARCH 19701
Mr President, French Civil Service and private concerns, Members of the Court, entered the service of the Commission of the European Economic Community on 1 Sep The two cases (18/69 and 39/69) on which I temper 1964. He was engaged on the basis am about to give my opinion were dealt with of a contract of 12 August 1964 made in joint oral proceedings on 4 February initially for a period of six months. In law 1970. Since the same applicant lodged both, the applicant's position was that of a I can discuss them in one opinion. One member of the auxiliary staff under Title III advantage of this is that at least the facts can of the Conditions of Employment of Other be summarized together. The following are Servants of the Communities; his remune the main facts. ration was that of Category A I-II under The applicant is a French national who, Article 63 of those Conditions. Subsequent after successfully completing his studies at ly, despite several adverse reports, the appli the École des Sciences Politiques and work cant's contract was extended and for the ing for a time for the United Nations, the last time on 10 July 1968 with effect until
1 — Translated from the German.