C-46/69
ECLI:EU:C:1970:39
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JUDGMENT OF THE COURT (FIRST CHAMBER) 13 MAY 19701
Andreas Reinarz
y Commission of the European Communities
Case 49/69
Summary
1. Officials — Post — Right to a particular post — None — Personal preference — Legiti mate interest recognized by Staff Regulations (Staff Regulations of officials of the EEC, Article 4)
2. Officials — Measure terminating employment — Annulment by the Court of Justice — Post for which the official concerned could have competed — Appointment of another official — Unlawful in the absence of an essential factor of assessment (Staff Regulations of officials of the EEC, Article 7)
3. Officials — Grade and post — Equivalence — Right of officials (Staff Regulations of officials of the EEC, Articles 5 and 7)
1. Whilst the Staff Regulations do not give official to a post for which the official officials a right to any particular post who was the subject of the annulled that does not mean that an official may decision terminating his employment not have a legitimate interest in preferring could have applied, the administration one post to another. having made the appointment without having been able to take account in 2. Where a decision terminating the em order for it to be able to exercise its ployment of an official is subsequently discretion fully. annulled by the Court of Justice, it may have the consequence of rendering 3. Officials are entitled to rely on the rule unlawful the appointment of another of equivalence between grade and post.
In Case 46/69
Andreas Reinarz, an official of the Commission of the European Communities, residing at 3, Groenstraat, Dworp (Brabant), with an address for service in Luxem bourg at the Chambers of André Elvinger, 84 Grand-rue, represented and assisted by Marcel Slusny, Advocate at the Cour d'Appel, 272, avenue Brugmann, Uccle, Brussels 18, applicant,
1 — Language of the Case: French.
JUDGMENT OF 13. 5. 1970 — CASE 46/69
v
Commission of the European Communities, with an address for service in Luxem bourg at the Chambers of Émile Reuter, Legal Adviser to the Commission, 4, boulevard Royal, represented by its Legal Adviser, Louis de la Fontaine,
defendant,
Application for:
— the annulment of the decisions of the Commission by which :
(1) Mr Reinarz was given a post as Principal Adviser,
(2) Mr Dousset was appointed Director in the Directorate General for Trans port, and
(3) the Commission refused to grant a car allowance for the period from 1 October 1968 to 30 July 1969,
— and for an order that the Commission pay the arrears of the said car allowance,
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 — Summary of facts and procedure Directorate of the Directorate General for Transport of the EEC. When the Commu In 1959 the applicant was appointed nities were restructured it was decided in director of the Rates and Conditions 1968 to reduce the number of directorates
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responsible for transport, and he was car allowance for the period between the provisionally appointed Principal Adviser termination of his employment until the by a decision of 20 March 1968; and on date on which he was actually reinstated 26 June 1968 a measure was adopted therein (10 October 1968 to 30 July 1969). terminating his employment with effect The present application was lodged on 26 from 1 October 1968. September 1969. In Application 17/68 of 29 July 1968, the The written procedure followed the normal applicant sought the annulment of these course.
decisions. In it he complained that he had The Court (First Chamber), after hearing been dismissed from the service, and that the views of the Advocate-General and the three other officials of the same rank had report of the Judge-Rapporteur, decided to been preferred to him and appointed to the open the oral procedure without any three available posts of director under the preparatory inquiry. new detailed list of posts in the Directorate The parties presented oral argument at the General for Transport, whereas one of the hearing on 18 February 1970. three officials appointed had only a few The Advocate-General delivered his opin months to go before retirement. ion at the hearing on 18 March 1970. After his retirement that official was in fact replaced by an official from a lower grade, Mr Dousset, who was promoted to Director II — Conclusions of the Parties of the Directorate General for Transport by a decision of 15 January 1969. The applicant claims that the Court should : In its judgment of 6 May 1969 (17/68, Rec. 1969, p. 62), the Court annulled the (1) annul the decision of 18 June 1969 decision of 20 March 1968 allocating the whereby the Commission decided to ap applicant to a post as Principal Adviser and point the applicant a Principal Adviser; that of 26 June 1968 terminating his employ ment. The applicant learnt on 25 February (2) annul the appointment of Mr Dousset, 1969 of the promotion of Mr Dousset and the date of which is unknown to on 24 May 1969 lodged an appeal through the applicant; official channels against that decision. On 18 June 1969 the Commission, to (3) annul the decision of the Commission comply with the judgment of 6 May 1969, not to pay the applicant the fixed reinstated the applicant as an official in travel allowance in the Brussels area; Grade A 2 with effect from 1 October 1968 and gave him a newly created post as (4) order the Commission therefore to pay Principal Adviser in Grade A 2 in the the applicant the sum of 30 000 francs Directorate General for Transport. in respect of arrears, subject to reten The applicant's new duties were described tion by the applicant of the right to as follows : amend this sum in the course of the proceedings; 'To advise the Director General and to carry out duties in the sphere of general (5) order the Commission to pay the and technological research in the field applicant by way of damages the sum of transport, for the principal purpose of one million Belgian francs, subject of promoting the technical development to retention by the applicant of the of the transport system as a whole and right to amend this sum in the course to integrate it into the common transport of the proceedings; policy, bearing in mind its objectives and its economic and social implications.' (6) order the Commission to pay the entire costs of the proceedings. In a separate decision taken during its meetings on 9 and 10 July 1969 the Com The defendant contends that the Court mission also refused to give the applicant a should :
JUDGMENT OF 13. 5. 1970 — CASE 46/69
— dismiss the application as unfounded; — the duties of a Principal Adviser are in general of a temporary nature for they — order the applicant to pay the costs. depend on the needs of the Commission The defendant further contends, in its with regard to research needing to be carried out whereas the duties of a rejoinder, that the Court should: director are permanent duties within a — declare the submission of misuse of determined framework. The risk of powers produced for the first time in the being given non-active status in the applicant's reply inadmissible, or alter interests of the service is therefore less natively unfounded; for a director;
— dismiss the application as unfounded ; — opportunity for promotion to the grade — order the applicant to pay the costs. of Director General is practically ex cluded for the more or less parallel The applicant withdrew his claim for category of Adviser; damages in the course of the oral pro ceedings. — his appointment was merely an ad hoc decision, taken not in the interests of the service but for the purpose of enabling the Commission to escape the awkward III — Submissions and arguments situation in which it had placed itself by of the parties appointing Mr Dousset;
The submissions and arguments of the — the questions of general and technolo parties may be summarized as follows: gical research for which the applicant is responsible came, according to the A. The applicant's appointment to the post current detailed list of posts, equally of Principal Adviser within the competence of two divisions in Directorate General VIII (Transport) The applicant claims that in allocating him whilst a different Directorate General to the post of Principal Adviser the Com (XII) continues to have general compe mission failed to execute the judgment of tence in the same field. the Court. When the Court by its judgment of 6 May The defendant replies that although the 1969 annulled the decision of 20 March 1968 Court annulled the allocation of the appli appointing the applicant Principal Adviser cant to the post of Principal Adviser on the it demonstrated clearly that the post of ground that there had been no prior Principal Adviser was not equivalent to that examination of the comparative merits of of Director, which the applicant had pre the candidates, it was because it accepted viously occupied. The Commission must that such a measure must have pre-judged therefore restore him to his former situation the final measure terminating his employ and reinstate him in his duties as Director. ment. A reading of the judgment makes it In his own particular case the absence of clear in fact that if the provisional allocation equivalence between the two posts lies in to the post of Principal Adviser, decided the following facts: on 20 March 1968, had continued in force — a director's duties provide him with and been made a final appointment, the certain opportunities of acting in con dispute, in the form in which it was sub nexion with and obtainig information mitted to the Court, would not have taken on the daily progress of Community place. activities ; According to the Commission the appli cant's administrative situation was as — at the time, the applicant as director had follows: after the annulment granted by the a series of assistants whereas at present judgment of 6 May 1969 to ensure his re he has merely a shorthand-typist; instatement, the applicant, an official in
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Grade A 2 whose former post had been responsibility for research does not prevent finally abolished, had to be appointed to the Directorate General for Transport from one of two posts included in the definition dealing with questions of scientific research of basic posts in Grade A 2, that is to say, a arising within its own sphere. Such over post as Director or as Principal Adviser. lapping of powers between several Director Relying on the case-law of the Court in ates general in particular subjects is made Case 21/68 (judgment of 6 May 1969 necessary by the particular duties given to Huybrechts ν Commission Rec. 1969, p. 85) each. Thus, Directorate General V, respon the defendant maintains that it was at liberty sible for general questions of social policy, to appoint the applicant to either of the two collaborates with the Directorate General above-mentioned posts since the Staff for Transport on particular aspects of social Regulations do not give any official a right policy in the field of transport and on to a particular post. drawing up special rules for this sector.
This The duties attaching to posts do, of course, method of organization is manifestly not differ, but that alone does not justify the contrary to the interests of the service. conclusion that they are not equivalent. On the contrary, claims the Commission, they B. The appointment of Mr Dousset are, not only under the Staff Regulations, but also in fact: opportunities for promo The applicant requests the annulment of the tion are the same, whilst according to appointment of Mr Dousset because the Article 41 of the Regulations a Principal appointment is the consequence of his own Adviser is no more likely to be assigned non- dismissal. active status than a director, bearing in mind He adds that by appointing Mr Dousset to the criteria which the administration must the post of Director when in fact the Com take into account before adopting such a mission should have re-assigned the appli
measure. Lastly, the defendant contests the cant to a director's post, the Commission allegation that it did not act in the interests in any case placed itself in such a position of the service, and thereby was guilty of a as to make compliance with the judgment misuse of powers in allocating the applicant impossible, or at least difficult. to the post in question by a decision taken The defendant replies, first, that the appli 'in desperation', when the duties entrusted cant does not state any procedural or to him already belonged in fact to other substantive defect giving grounds for the Directorates General. annulment which he seeks. It adds that if The defendant claims that this last sub the Court should refuse to annul the mission is inadmissible because it is raised appointment of the applicant as a Principal for the first time in the reply and in any Adviser, the request for the annulment of case is unfounded. the appointment of Mr Dousset must also, On the one hand, it is for the Commission on that ground, be rejected. to organize its departments and the mere Even if the Court were to annul the decision assertion that the creation of a post of appointing the applicant a Principal Ad Principal Adviser was not effected in the viser that annulment would not necessarily, interests of the service is not sufficient to claims the Commission, necessitate the establish the alleged misuse of powers. annulment of the appointment of Mr On the other hand, the claim that questions Dousset. of general research and technology are Since the post previously occupied by the within the sphere of competence of two applicant was definitively abolished, which directorates within Directorate General VII means that his reinstatement in that post is is incorrect, because one of the two is out of the question, the Commission must concerned only with certain aspects, essen in that case appoint him to another post as tially technical, of the relevant problems, director. But the applicant's argument leaving to the other questions of general amounts to a demand, (which runs counter research and of technology. Moreover, the to the case-law of the Court) to be appointed fact that Directorate General XII, General to a particular post, in this case that Research and Technology, has general occupied by Mr Dousset.
JUDGMENT OF 13. 5. 1970 — CASE 46/69
Furthermore, the annulment of the appoint whatever reason, he was not carrying out ment of Mr Dousset could not be the his duties. consequence of the fact that the Com In any case the administration upheld the mission placed itself in a position making applicant's point of view before the financial compliance with the judgment impossible controller and issued him with petrol or at least difficult, for the Commission coupons at a reduced price during the period created a post of Principal Adviser, and has in question. not in so doing created any budgetary Lastly in the applicant's own particular problems in order to refuse to comply with case, he had incurred numerous expenses the judgment of the Court. in connexion with his car during the period in question, owing to the fact that he had not sold his cars because he hoped to become C. The refusal to grant the car allowance once more an official with the Commission, from 1 October 1968 to 30 July 1969 and also to the travel necessary in connexion with Case 17/68 (costs which he had not The applicant alleges that the Commission taken into account in the final financial did not pay him the fixed travel allowance settlement in the case). allowed by Article 15 of Annex VII to the The defendant replies that the allowance is Staff Regulations, whereas this allowance a fixed reimbursement of expenses granted is properly accorded to all officials in Grade to certain officials for their travelling A 2, even if they are not in fact performing expenses within the boundaries of the city their duties. where they work, when they are not using The allowance is to cover both representa a service car. Since the applicant's travel tion and travel expenses and the depreci was not in the interests of the service his ation in the value of the car. expenses cannot be reimbursed. Like his colleagues, the applicant continued Furthermore the defendant adds that the to receive this allowance even when abroad car allowance is certainly not intended to or ill, and in no case did an A 2 official cover depreciation of one or more cars, as have his allowance withdrawn when, for the applicant claims.
Ground of judgments
1 The applicant is for the annulment:
(1) of the decision of the Commission of 18 June 1969 in so far as it allocates the applicant to a post as Principal Adviser in Grade A 2 in the Directorate General for Transport;
(2) of the decision of the Commission of 15 January 1969 appointing Mr Jacques Dousset Director in the Directorate General for Transport;
(3) the decision of the Commission to refuse the applicant a car allowance for the period 1 October 1968 to 30 July 1969.
2 The first complaints to be examined are those directed against the appointment of Mr Dousset.
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3 In its judgment of 6 May 1969 the Court of Justice annulled, inter alia, the decision of the defendant of 26 June 1968 whereby, pursuant to Article 4 of Regulation No 259/68, the applicant's employment was terminated.
4 This was the decision, later annulled, which prevented the applicant from applying for a post as Director in the Directorate General for Transport.
5 Whilst the Staff Regulations do not give officials a right to any particular post, that does not mean that an official may not have a legitimate interest in preferring one post to another.
6 This, in particular, is why the Staff Regulations make it possible for an official to be transferred on his request; moreover such preference between posts, even those in the same grade, may be in the interests of the service.
7 The result of the decision annulled by the judgment of 6 May 1969 was that the defendant, when it appointed Mr Dousset on 15 January 1969, made its choice without having at its disposal a factor of assessment which ought to have been taken into account in order for it to be able to exercise its discretion fully.
8 The application is accordingly well founded on this point.
9 On the other hand the decision of 18 June 1969 appointing the applicant to a post as Principal Adviser does not adversely affect him.
10 In fact the posts of Director and of Principal Adviser fall within the same grade and the difference between their respective powers and duties, whilst it may justify a personal preference for one or the other post, yet does not infringe the rule of equivalence between grade and post on which officials are entitled to rely.
11 Furthermore this decision is not such as to hinder the Commission in the exercise
of its discretionary power when, following the present judgment, it comes to fill the vacant post of Director in the Directorate General for Transport.
12 The application on this point is inadmissible.
13 The applicant further asks for the annulment of the refusal by the defendant to grant him the car allowance allowed for by Article 15 of Annex VII to the Staff Regulations for the period prior to his reinstatement in Grade A 2.
JUDGMENT OF 13. 5. 1970 — CASE 46/69
14 The car allowance, whilts it is a fixed amount, is justified only if the vehicle can be used in the interests of the service.
15 However, during the period in question the applicant had been relieved of his duties and responsibilities within the service.
16 Accordingly the application is unfounded on this point.
Costs
17 According to Article 69 (2) of the Rules of Procedure of the Court of Justice the unsuccessful party shall pay the costs.
18 However, according to Article 70 of the Rules of Procedure the costs incurred by institutions in actions involving servants of the Communities are payable by the former.
19 It is also appropriate to apply in the present case Article 69 (3) of the Rules of Procedure according to which the Court may order that the parties bear their own costs in whole or in part.
20 Since both parties have failed in one or several of their claims, the applicant should bear one half of his 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;
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Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 91 ; Having regard to Article 4 of Regulation No 259/68,
THE COURT (First Chamber)
hereby:
1. Annals the decision of the Commission of 15 January 1969 appointing Mr Jacques Dousset Director in the Directorate for Harmonization, Coordination and Financial Control of Infrastructures;
2. Dismisses the application against the decision of 18 June 1969 as inadmissible;
3. Dismisses the application in so far as it relates to the decision of the Com mission not to pay the applicant the fixed travel allowance;
4. Orders the defendant to pay one half of the costs of the applicant.
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 18 MARCH 19701
Mr President, As you know, the applicant was for a long Members of the Court, time Head of the Transport Rates and Conditions Directorate of the Directorate The proceedings which I am to discuss today General for Transport of the Commission are seen by the applicant as a continuation of the EEC. On the merger of the executives of an earlier case between the same parties of the three Communities the common (Case 17/68). I can therefore be brief in my Commission decided in the course of the summary of the facts. restructuring of its departments to maintain
1 — Translated from the German.