C-48/70

JUDGMENT OF THE COURT 16 MARCH 19711

Giorgio Bernardi v European Parliament

Case 48/70

Summa ry

1. Officials — Rules on temporary posting — Formalities of appointment (Staff Regulations of Officials, Article 7)

2. Officials — Rules on temporary posting— Temporary appointment — Juris­ diction of the appointing authority (Staff Regulations of Officials, Article 7)

defendant, 1 — Language of the Case : French.

JUDGMENT OF 16. 3. 1971 — CASE 48/70

Application for the annulment of the implied rejection by the defendant—a rejection later confirmed by letter of 25 June 1970—of the complaint of the applicant seeking, in essence,

(1) the establishment of new criteria governing the sending of officials in turn to Strasbourg on mission on the occasion of meetings of the European Parliament, and

(2) the annulment of two temporary postings granted successively to one of the colleagues of the applicant.

THE COURT (First Chamber)

The facts which form the basis of the On the other hand, the applicant con­ proceedings and the procedure may be siders that he has suffered damage summarized as follows: because of the fact that on two occasions The applicant entered the service of the Mrs Annamaria dell' Omodarme, who is, European Parliament on 10 October like the applicant, an assistant translator, 1966 and was established on 1 May 1969 was called upon temporarily to occupy in Grade L/A 7 (Italian Translation a post as a translator (from 15 December Section). 1968 to 15 September 1969 and as from The dispute which is at the basis of 5 January 1970). In fact the applicant is the present proceedings bears upon of the opinion that Mrs dell' Omodarme two distinct points: has abilities, qualifications and experi­ On the one hand, the applicant objects ence which are qualitatively and quanti­ to the fact that of 17 mission posts tatively inferior to his. granted to the Italian translation section By letter of 6 April 1970 the applicant on the occasion of the sessions of the made an appeal through official channels European Parliament in Strasbourg only to the appointing authority with a view two posts are granted in turn to ten to having the basis of his complaint on officials whilst one post in particular is these two points accepted.

BERNARDI v EUROPEAN PARLIAMENT

normal course. missions of fact and of law; By order of 13 January 1971 the First — take note mat he reserves the right Chamber of the Court asked the defen to have the defendant produce during dant to lodge the internal decision of the proceedings all documents, files the Bureau of the European Parliament and other material by which the of 12 December 1962 nominating the Parliament intends to prove the as appointing authority, as well as to reply sertion of the Secretary-General, Mr to questions concerning the description Nord, in the third page of his letter of Mrs dell' Omodarme's post and of of 25 June 1970, to the effect that those which she occupied temporarily the formal qualifications and merits and concerning the duties which Mrs of the applicant are inferior to those dell' Omodarme had to carry out in of Mrs dell' Omordarme'.

sible to the extent to which it is opinion at the hearing on 10 February 1971. directed against the decision of the Secretary-General of 6 January 1970 II — Conclusions of the par giving a temporary post to Mrs dell' ties Omodarme; — alternatively as to the first head of In the application the applicant claimed the application and as to the first that the Court should: part of the second head of the applica —'accept the present application as tion, and principally as to the second being in due form and declare that part of the second head of the it was made in good time; application, declare the application to — declare that it is admissible, since the be unfounded;

— dismiss it; being out of time as regards the — make an appropriate order as to first of the temporary appoint­ costs'. ments, declare that in any case the second must be annulled for In the reply the applicant specified and lack of jurisdiction, failure to amplified his conclusions by asking that observe procedural requirements the Court should: and misuse of powers, as well as Ί. Take note of the applicant's con­ for the lack of an expressly clusions regarding the first part of indicated purpose and basis; his appeal through official channels (e) take note that Mr Bernardi as regards the travel to Strasbourg, offers to prove to the extent declare his conclusions to be well- necessary: founded and accordingly rule on this head of the claim: (1) that the temporary appoint­ ments in question were not (a) that the European Parliament necessary in the interests of must in the interests of the ser­ the service; vice also take account of the comparative merits of servants (2) that the same temporary for the purposes of its mission appointments were granted orders of an ordinary nature without the least prior information and without which are permanently and highly coveted, such as those sufficient a posteriori in­ formation and without the for Strasbourg, knowledge of colleagues; (b) that the Parliament cannot, as is apparent from the opinion of (3) that they had the sole pur­ the Staff Committee of 1 April pose of giving the candidate who benefited from them 1970, grant a mission of a per­ manent nature to a "temporary" better prospects of promo­ servant to the disadvantage of tion, if not of procuring for her a not inconsiderable other "older established and better qualified" servants. financial advantage; (4) that the very fact that this II. As regards the criticized temporary temporary post was granted appointments, twice to the same person (a) declare that the two appoint­ had no other reason than ments in question were made by that mentioned under (3), an authority lacking the neces­ that is to say, a personal sary jurisdiction and that the advantage; appointments lack an expressly (f) declare this offer of proof to be indicated purpose and basis; relevant and cogent and conse­ (b) consequently declare them to be quently to allow the applicant null and void; to give proof by all legal means, (c) declare that the application is and more particularly by wit­ in any case admissible in respect nesses;

(a) Admissibility 2. Second head of the application The defendant points out on the subject of the complaint concerning missions to (a) Admissibility Strasbourg that the applicant stated in his originating application that he left The defendant mentions that by a deci­ the decision to the discretion of the sion of 4 December 1968 Mrs dell' Court and did not formulate a request Omodarme was for the first time called or conclusion in his application. Con­ upon to carry out duties in a temporary sequently that head of the application posting, a decision which was displayed is inadmissible. It is equally inadmissible in the premises of the institution on 19 because of the fact that the complaint December 1968. Considering that the through official channels does not men­ period of time within which an applica­ tion the name of the temporary servant tion could be made against that decision benefiting from a 'permanent' mission began running on the latter date, the order for Strasbourg. Lastly the request defendant submits that the application concerns a certain administrative practice is in that respect out of time and con­ and not an act adversely affecting the sequently inadmissible. applicant. The applicant disputes that this first In the reply the applicant points out decision was duly published and alleges that it follows from the letter of the that the Staff Bulletin published it— Secretary-General of 25 June 1970 that although incompletely—after a delay of the defendant was quite aware of the nearly a year. It was only on 25 March identity of the temporary servant men­ 1970, after asking for information on tioned by the complaint. On the other this subject, that the applicant obtained hand, he asserts that by leaving the deci­ full information concerning that decision sion to the discretion of the Court he from a letter of the Director-General intended to submit to it the whole of the of Administration of the Parliament. dispute between himself and the In its rejoinder the defendant maintains defendant. that the appointments of Mrs Annamaria

Dell' Omodarme to temporary postings could be taken on the purely administra were immediately displayed in its pre tive level. However, it is only on the mises and that the first appointment latter hypothesis that the decisions in was published in the Staff Bulletin of question could validly have been taken November-December 1968, distributed by the Secretary-General. on 20 June 1969. On the other hand, Article 7 (2) con The defendant alleges that the applica tains no guarantees concerning pro tion is also inadmissible in other respects cedure and substance which must attach since, on the one hand, at the date of to the taking of decisions in this field. the decision concerning the first tempor The choice of persons appointed to a ary posting the applicant had not yet temporary posting assumes great material been established, so that he had no importance because the fact of having interest in contesting that decision. On carried out the duties involved in a the other hand, the statement in the temporary posting places the person conclusions of the applicant that the concerned in a better position to be temporary posting of Mrs dell' chosen for a possible later promotion, Omodarme was not necessary is in so that one could even describe it as a

On the other lies not in any claim which he might hand, the repeated appointment of the have to be appointed to the temporary same person to a temporary posting is post in question instead of Mrs dell' in any case contrary to the spirit of the Omodarme, but in his anxiety not to Staff Regulations and amounts to a see the latter given advantages with a misuse of powers. view to a later promotion for which Furthermore the applicant argues that both he and the said lady were eligible. the decision on the temporary posting must be preceded by an examination of (b) The substance of the case the comparative merits of the officials The applicant complains in the first concerned. However, the two tests in place that the contested decisions were which both himself and Mrs dell'Omo secret in that the second decision still darme had taken part and which were had not been published at the time when referred to by the Secretary-General he made his application whilst the first in his reply to the complaint constitute had been published only after a delay an insufficient basis of comparison.

BERNARDI v EUROPEAN PARLIAMENT

tion; cant should recommend that each tem — a minimum of prior publicity allow porary posting should be allocated to ing the officials concerned to declare each official in turn, which would be their interest (cf. the second para absurd and contrary to the interests of graph of Article 4 of the Staff Regu the service. Decisions on temporary lations); postings must necessarily form part of — the second paragraph of Article 25 the discretionary power of the competent of the Staff Regulations were ob authority, subject always to the pos

Grade L/A6. Consequently any tem would in fact have been sufficient to porary appointment to a post in a distribute the same work differently higher grade emanating from the among the translators available. Con Secretary-General would not only be sequently any interest of the service is voidable but void. lacking in the present case. Furthermore the applicant states that in The applicant asserts further that the all respects except that of limitation in observation by the defendant concerning time a temporary posting amounts to the possibility of promoting Mrs dell promotion.

JUDGMENT OF 16. 3. 1971 — CASE 48/70

Grounds of judgment 1 By application lodged on 6 August 1970 the applicant brought an action before the Court concerning on the one hand an implied decision of rejection consequent upon the silence of the defendant and an express decision of rejection of 25 June 1970 concerning the grant of travel orders for sessions of the European Parliament in Strasbourg and concerning on the other hand the annulment of the decisions of 4 December 1968 and of 5 January 1970 appointing on both occasions a colleague of the applicant to a temporary posting as translator.

BERNARDI v EUROPEAN PARLIAMENT

The application in so far as it relates to the mission orders

2 In his originating application the applicant, whilst criticizing the manner in which in the Italian section of the Language Service of the European Parlia­ ment the travel orders are allocated to translators on the occasion of the sessions of the Parliament in Strasbourg, failed to formulate any specific claim or conclusion in this respect.

3 In his reply he submitted that the Court of Justice should decide that the European Parliament 'must in the interest of the service take account in respect of its travel orders of the comparative merits of servants and cannot grant a mission of a permanent nature to a temporary servant to the dis­ advantage of other older established servants who are better qualified'.

4 These conclusions were not formulated in the application—contrary to Article 38 of the Rules of Procedure of the Court—and are therefore inadmissible.

10 Since this line of argument affects other points in the dispute, even that of the admissibility of the application, it is appropriate to consider it before any other submission.

JUDGMENT OF 16. 3. 1971 — CASE 48/70

11 In the drafting of the provisions of the Staff Regulations their authors endeavoured to indicate their exact scope by precise wording.

12 There is no reason to extend their scope by analogy to situations to which they do not expressly refer.

13 Consequently the formal requirements laid down in the second paragraph of Article 4 and in Article 45 which mention only appointment and promotion cannot be extended to cases of temporary postings which amount neither to an appointment nor to a promotion within the strict meaning of these expressions.

14 On the other hand, the second paragraph of Article 25 which applies inter alia to decisions determining administrative status must be regarded as applicable also to decisions concerning temporary postings within the meaning of Article 7 (2).

20 The applicant considers, however, that the expiration of the limitation period for making an application cannot be raised against him, since the compulsory

BERNARDI v EUROPEAN PARLIAMENT

posting of the contested decision in the premises of the institution did not take place.

21 The defendant, however, has sufficiently shown by the production of the documents posted that in the present case the decision was posted between 19 December 1968 to 2 January 1969.

22 Consequently the objection of inadmissibility is well founded so that the application must be dismissed to the extent to which it refers to the first of the two contested decisions.

23 The defendant also argues that the applicant has no interest in asking for the annulment of the disputed decisions.

The submission of lack of jurisdiction

30 The applicant claims that by adopting the contested decision the Secretary- General of the European Parliament exceeded the powers conferred on him by the decision of the Bureau of 12 December 1962, determining the

JUDGMENT OF 16. 3. 1971 — CASE 48/70

appointing authorities following the implementation of the Staff Regulations of Officials.

31 That decision provides that 'the powers devolving under the Staff Regula­ tions of Officials upon the appointing authority ... shall be exercised ... by the President, on a proposal of the Secretary-General... for application to officials in Category A up to Grade 7 inclusive and of the Language Service up to Grade 6 inclusive of provisions 1, 7, 11 etc....'.

32 By mentioning the officials in the grades indicated, that decision clearly in­ cludes by that expression the application of the said articles for the purposes of filling posts in those grades.

38 Since the defendant has substantially failed in its submissions it must be ordered to pay the costs.

Upon 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 Treaties establishing the European Communities;

BERNARDI v EUROPEAN PARLIAMENT

Having regard to the Convention on certain Institutions common to the European Communities; Having regard to the Protocols on the Statute of the Court of Justice annexed to the Treaties establishing the ECSC, the EEC and the EAEC; 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 Com­ munities, especially Articles 4, 7, 25, 45 and 91,

THE COURT (First Chamber)

DELIVERED ON 10 FEBRUARY 19711

Mr President, ing authority a formal complaint in ac­ Members of the Court, cordance with Article 90 of the Staff Regulations of Officials. In that letter The applicant in the case which con­ which was received by the appointing cerns us today has been in the service authority on 10 April 1970, he dealt of the European Parliament as an assist­ with two questions: on the one hand ant translator since October 1966. He the rules governing missions to Stras­ was at first a temporary servant and bourg and on the other hand the tem­ then established in Grade L/A 7 as porary allocation of two posts as trans­ from 1 May 1969. At the beginning of lator under Article 7 (2) of the Staff the past year he believed he had dis­ Regulations of Officials. In respect of covered some irregularities in the Italian the first matter he pointed out that only section of the language service of the a category of privileged officials bene­ European Parliament. That is why on fited permanently from these missions, 6 April 1970 he put before the appoint- whilst others (among whom was the

1 — Translated from the French version.