C-5/70

1. The system of temporary posting may duties which are substantially different only be applied to an official who tem­ from those involved in his own post. porarily occupies a post of a grade higher 2. It is for the Commission to determine the than his own and thereby carries out internal organization of its departments.

In Case 5/70

Maurice Prelle, an official of the Commission of the European Communities, residing in Brussels, represented by Ernest Arendt, Advocate of the Cour Supérieure de Justice of the Grand Duchy of Luxembourg, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34/B/IV Centre Louvigny, rue Philippe-II,

applicant,

v

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

Advocate-General: A. Dutheillet de Lamothe

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I —Facts 1969 requested from the Commission the differential allowance provided for in When the departments of the Commission Article 7 (2) of the Staff Regulations. were recognized, following the merger of As he had been given no express decision on the executives in 1967, Mr Maurice Prelle, a this, on 6 January 1970 he submitted a com­ Principal Administrator in Grade A4 in the plaint through official channels. Commission, was employed, within the On 26 January 1970 he, made an application Legal Department, in a branch which against the implied decision rejecting his covered in particular matters relating to the complaint through official channels. application of the EAEC Treaty and to In the course of these proceedings the Com­ technological research and the research mission expressly rejected Mr Prelle's agreements of the ECSC. request in a reasoned decision of 18 Febru­ When the work was divided up between the ary 1970, which he received on 24 February. four members of the branch, Mr Prelle was given responsibility, jointly with a colleague, for matters concerning nuclear research, the II — Procedure circulation of the knowledge acquired, of the patents and of the research agreements of the ECSÇ. The application directed against the Com­ After being promoted to Grade A3, Mr mission's implied decision of rejection was Prelle's colleague obtained leave on per­ lodged at the Court Registry on 26 January sonal grounds, starting on 25 April 1969. 1970. Mr Prelle believed himself to be deputizing Apart from the issue of an express decision for his colleague, having taken over all his by the Commission, the written procedure duties, and in a memorandum of 3 October followed the normal course.

After hearing the report of the Judge-Rap­ IV — Submissions and arguments of porteur and the views of the Advocate- the parties General, the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry. The applicant's arguments may be sum­ The parties presented oral argument at the marized as follows : hearing on 12 November 1970. The Advocate-General delivered his opi­ (a) In the absence of his colleague in Grade nion at the hearing on 19 November 1970. A3 he is carrying out his duties and there­ fore temporarily occupies his post. The Commission was under an obligation to III — Conclusions of the parties make the necessary arrangements under the Staff Regulations and to effect financial adjustments in accordance with Article 7 (2) of those Regulations. The applicant claims that the Court should: (b) The Staff Regulations lay down certain (a) rule that the Commission is obliged to fundamental rules which are applicable to pay to him the differential allowance all officials, irrespective of their posting: provided for in Article 7 (2) of the Staff Regulations for the period from 24 July — the appointing authority is under an 1969 to 24 April 1970; obligation to place each official in a post corresponding to his grade; this means, (b) order it to do so, if necessary; on the one hand, that there must neces­ sarily be a post corresponding to each (c) alternatively, rule that the Commission official and, on the other hand, that the is liable for a wrongful act or omission duties are in accordance with the level of on its part giving rise to damage equal each grade without there being any pos­ to the amount of the allowance set out in sible confusion between the levels of two the Regulations or to any other amount different grades belonging to different which the Court may determine ex career brackets; aequo et bono for failing to take an express decision appointing him to a — the appointing authority is obliged to temporary posting and thus to regular­ give a description of the posts; even if ize the existing situation whereby ir­ there is no express measure there are respective of his wishes the applicant some posts which are at least 'predeter­ daily had to carry out the duties of his mined' by internal departmental meas­ colleague; ures;

levels of duties on which the Staff Regula It is incorrect, moreover, that the system tions are based would be prejudiced. Tem of seniority of grades within the legal de porary posting is limited in time and subject partment is not observed. to financial compensation as it is an excep tion to the rules protecting this system of (f) The argument relating to an 'adminis seniority. The appointing authority cannot, trative practice' is still less relevant to its therefore, without committing an unlawful legality. act or omission, give to an official of a lower rank duties attaching to a higher position (g) There can be no doubt as to the wrong while not giving him financial compensa ful act or omission on the part of the Com tion or observing the maximum period of mission with regard to the general principles one year; the interpretation whereby the of the Staff Regulations. The irregularity of appointing authority is able to escape its the position in which the applicant was obligations merely by refraining from placed against his clearly expressed wishes making an express decision in accordance is made more serious by the rule of equality with Article 7 (2) of the Staff Regulations is amongst officials.

in question. tain duties by an official of a lower grade, except of course in the hypothetical case of (b) From a legal point of view it is clear 'usurpation'. Formal regularization of the from the wording of Article 7 (2) of the situation by an express decision of a tem Staff Regulations and from their spirit that porary posting is no doubt desirable; how a right to payment can only arise where the ever the substance of the right to the differ official has been called upon to occupy a ential allowance lies solely in the actual and post temporarily by a decision of the ap bona fide performance of duties by a person pointing authority in the circumstances set of a lower grade. out in Article 7 (2) of the Staff Regulations. The intention to create a temporary posting This is clearly not the case here. is to be deduced by implication, but neces A decision to have a post occupied tem sarily, from the decision to allow the holder porarily has not insignificant consequences, ofthe higher post leave on personal grounds, in particular on departmental organization, and not to replace him in his post or to and cannot be taken away from the supreme abolish it. authority in the hierarchy.

PRELLE v COMMISSION

ferred from the behaviour of the Commis­ to duties defined ratione materiae but is sion the intention, with a wide range of based on other criteria: the nature of the administrative measures open to it, to have work and the degree of responsibility of the post in question occupied on a tem­ lawyers with a general background. Now­ porary basis, and even less to give the appli­ here do the Staff Regulations provide that cant the temporary posting. all posts should be so defined and deter­ mined that they should be clearly distin­ (d) The applicant cannot rely on any right guishable from one another by the descrip­ to be called upon to occupy temporarily the tion of their duties alone; in any case such a post in question and therefore can have no requirement would be incompatible with right to the temporary differential allow­ the needs of a live administration and, in ance. respect of the legal department in partic­ Article 7 (2) of the Staff Regulations leaves ular, would result in total atrophy and to the discretion of the appointing authority prevent it from accomplishing its duties the the decision whether an official is to be ap­ nature of which is continually changing. pointed to a higher post on a temporary In particular the difference between a lawyer basis. in Grade A3 and one in Grade A4 cannot be Doubtless the appointing authority is not established by a comparison of the different entirely free in the exercise of this discre­ work done by those officials ; as is confirmed tion; however in this case it can in no way by the wording of the vacancy notices for be held at fault: the applicant is not able to each post, the difference lies in the greater claim that there is a usual practice, which in measure of responsibility which a Grade 3 his case has not been followed; the factual adviser must in general be able to assume, situation is not such as to meet the require­ as well as the requirement of a longer pro­ ments of Article 7 (2) of the Staff Regula­ fessional experience, in comparison with a tions which the authority has refused to principal administrator of the A5-A4 rectify by means of a decision. career bracket.

The application for annulment

2 By the terms of Article 7 (2) of the Staff Regulations 'An official may be called upon to occupy temporarily a post in a career bracket ... which is higher than his substantive career bracket'.

3 It is not denied that the applicant, a principal administrator in Grade A4, in the legal department of the Commission, assumed at the least a substantial part of the duties of a colleague in Grade A3 who had obtained leave on personal grounds.

4 Having been called upon to occupy temporarily a post in a higher career bracket within his category, the applicant believes he is entitled to payment of the differen­ tial allowance as set out in the abovementioned provision.

5 In addition to the other conditions for its application, the first sentence of Article 7 (2) makes the payment of the differential allowance conditional on the occupation of a post in a career bracket higher than that of the official who is called upon to occupy it.

6 This provision is intended to ensure that an official who is called upon temporarily to assume duties which entail responsibilities greater than those which he normally bears receives payment corresponding to those greater responsibilities.

11 He claims that in consequence of this lack of organization an official called upon to occupy temporarily, within that department, a post in a career bracket higher than his own is unable to claim the differential allowance to which he would normally be entitled.

12 The applicant believes that by virtue of this omission the Commission is liable to him for compensation.

13 It is for the Commission to determine the internal organization of its departments'

14 In view of the lack of any noticeable differences between the applicant's post and the post temporarily occupied by him, by virtue of the way in which the legal department was organized, the Commission was not required to give the applicant a new posting as a result of his temporary occupation of the post in question.

15 For these reasons the alternative request must also be rejected.

Costs

THE COURT (Second Chamber)

hereby:

1. Dismisses the application both as regards the principal and the alternative claim.

2. Orders the parties to bear their own costs.

Trabucchi Pescatore Kutscher

Delivered in open court in Luxembourg on 16 December 1970