C-35/69

1. The application of Article 7 (2) of the 2. The decision to call upon an official to Staff Regulations of Officials requires occupy a post temporarily depends on an the express agreement of the appointing assessment of the interests of the service. authority in order 'to call upon' an An official cannot acquire a right to the official to occupy temporarily a post in a temporary post from the mere fact that higher career bracket. he is performing the duties attaching thereto.

In Case 35/69

Herta Grosz, neé Lampe, the widow of Fero Grosz and an official of the Com­ mission of the European Communities, represented and assisted by José Saels, Advocate of the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Fernand Loesch, 2 rue Gouthe,

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 Luxembourg

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

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

General, the First Chamber of the Court immediate superior, she has carried out decided to open the oral procedure without since 23 October 1968 the duties attaching any preliminary inquiry. to the post of executive secretary which The parties submitted their oral observa became vacant on that date. The Commis tions at the hearing on 28 May 1970. sion is thus obliged to pay her the differential The Advocate-General delivered his opinion allowance provided for under Article 7 (2) at the hearing on 9 June 1970. of the Staff Regulations of Officials as from

time worked by officials in Categories C and D, the defendant states that it is still pre The defendant contends that the Court should: pared even now to grant compensation or remuneration in respect of the overtime, to — dismiss Application 35/69 as unfounded; the extent to which it had actually been worked. — order the applicant to pay the costs. The applicant makes the following reply: III— Submissions and arguments of — Her director, Mr Tinelli, entrusted his the parties secretarial work to her, which clearly demonstrates that she possesses the The submissions and arguments of the par necessary qualifications for this post and ties may be summarized as follows: that a knowledge of the Italian language is not an essential requirement in this 1 — The payment of the differential allow

JUDGMENT OF 9. 7. 1970 — CASE 35/69

23 October 1968. The fact that she' 1968 from the director of Directorate IX-B distributed the post to the various heads clearly shows that the purposes of the pro of division is clear evidence of this. motion procedure in question was to fill the vacant post in that directorate and not to — It is irrelevant to object that on 24 recruit an official in Grade C1 to the office January 1969 the post in question was of a member of the Commission. The fact

stance the applicant did not have the The applicant replies that, contrary to the necessary qualifications to occupy a post on defendant's statements, Miss Borsa's pro a temporary basis, the defendant states motion to the vacant post actually took specifically that the applicant's director did place after that post had been transferred. not 'entrust his secretarial work' to her and In fact: that the duties which she performed were not the same as those carried out by the — it is not clear why, if the two decisions former occupant of the post.

ferrd. Moreover, the refusal to allow the meaning of the third paragraph of applicant to go on leave on the ground that Article 25 of the Staff Regulations, which she was to be responsible for distributing provides that specific decisions regarding the post is irrelevant in this instance, as it is promotion shall at once be posted in the not apparent that this was a task which premises of the institution to which the could only be carried out by a secretary in official belongs; Grade C1. — the only conclusive document in this 2 — The annulment of the contested decision instance is the promotion decision itself dating from 16 January 1969 and not an The applicant maintains that Miss Borsa internal memorandum the sole purpose was promoted to the vacant post whereas of which was to Obtain the opinion of any she was in fact intended to carry out other individuals or departments concerned;

— the decision of 16 January 1969 shows and offered in exchange to give up a post in expressly that the post to which Miss Grade B3/2. The Administration had, there­ Borsa was promoted was that referred to fore, considered it reasonable to bring to an in Vacancy Notice No COM/450, al­ end the procedure which was under way and though it is not disputed that she never to transfer the post in Grade C1 on the same actually occupied that post; day as that on which the promotion decision was adopted. Had it had the slightsst doubt — it cannot be accepted that at the very as to the legality of its action it would have moment when the vacant post was filled allowed several days to elapse between the by the promotion decision in dispute the promotion and the change in the detailed interests of the service suddenly required list of posts resulting in the transfer, in it to be transferred. order to enable Miss Borsa to perform her duties in Directorate IX-B, if only for a few The applicant observes, furthermore, that if days. it is assumed that the two decisions—the The principle of equality between can­ promotion and the transfer of the post—are didates has therefore not been violated actually concomitant it follows: since all the candidates submitted their applications in due form for the same — that, as it was intended that Miss Borsa vacant post, that is, the post referred to in should occupy another post, the basic Vacancy Notice No COM/450. reason for her promotion, that is, her In addition, the defendant states that: ability to perform the duties of principal secretary in Directorate IX-B, is in­ — although the decision of 16 January 1969 correct: does not show the date on which Miss Borsa's promotion had in fact been — that, for this reason, the principle of decided, this is because it is irrelevant, as equality between the candidates for such the contested promotion took effect on promotion was in that instance violated; 1 December 1968, that is, before 20 December 1968. The absence of this — that, at all events, by not publishing until information cannot justify the appli­ 16 January 1969 a decision taken on 20 cant's alternative conclusions regarding December 1968 the Commission made costs. In her complaint of 16 April 1969 an error likely to cause confusion and she did not put forward the argument to must therefore be ordered to pay the which she refers for the first time in the costs, as claimed in the alternative con­ present application, that is, that it was clusion. decided to appoint Miss Borsa to a post other than that referred to in the vacancy The defendant explains that during the pro­ vacancy notice before the pomotion motion procedure, when it became clear decision was taken; that Miss Borsa should be promoted because her qualifications coincided with — moreover, the publication of this pro­ those required for the vacant post, the office motion decision was delayed by the of Mr Colonna di Paliano had requested the public holiday at Christmas and transfer of a secretarial post in Grade C1, New Year.

3 Under the terms of Article 7 (2) of the Staff Regulations of Officials, an official who has been 'called upon' to occupy temporarily a post in a career bracket in his category or service which is higher than his substantive career bracket shall receive, from the beginning of the fourth month of such temporary posting, a differential allowance equal to the difference between the remuneration carried by his substan­ tive grade and step and the remuneration which he would receive in respect of the step at which he would be classified in the starting grade if he were appointed to the career bracket of his temporary posting.

4 At this provision involves for the official concerned a right to specific payments by the administration, its application implies the express agreement of the appointing authority in order to 'call upon' the official to occupy temporarily the post in the higher career bracket.

5 In this instance no such agreement exists.

6 Moreover, as the decision to call upon an official to occupy a post temporarily depends on an assessment of the interests of the service, the applicant cannot acquire a right to the temporary post from the mere fact that she performs the duties attaching to the post in question.

7 Furthermore, the applicant has not shown that she in fact performs the duties involved in the temporary posting in question.

8 It is clear that on 20 December 1968 the post relating to these duties was transferred from Directorate IX-B to another department, in fact to the office of a member of the Commission.

13 The applicant maintains that this decision is illegal in that it was taken after the decision to transfer this post from Directorate IX-B to the office of a member of the Commission.

14 The documents in the file show that the appointment of Miss Borsa and the transfer of the post were both decided upon on 20 December 1968.

15 However, no evidence has been brought in this instance to show that this course of action was determined by considerations other than the interests of the service.

16 Secondly, the transfer in question involved no change in the definition of duties which had been drawn up in Vacancy Notice No COM/450, and therefore did not alter the criteria on which a choice between the candidates could be made.

17 In these circumstances, this transfer cannot invalidate the contested appointment.

18 The applicant also maintains that the essential reason for this decision was that it was intended that the candidate promoted should occupy a post other than the one in question in this instance.

23 She maintains that under the terms of the third paragraph of Article 25 of the Staff Regulations 'Specific decisions regarding... promotion... of an official shall at once be posted in the premises of the institution to which the official belongs and shall be published in the Monthly Staff Bulletin of the Communities'.

24 The applicant claims that, by publishing on 16 January 1969 a decision adopted on 20 December 1968, the Commission infringed the provisions of this article and created a confusing situation capable of misleading the applicant as to her rights.

25 The applicant has brought no evidence to support this allegation.

Costs

26 The applicant has failed in her application.

27 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful 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 9 July 1970.

A. Van Houtte R. Monaco