C-53/70
ECLI:EU:C:1971:71
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JUDGMENT OF THE COURT 24 JUNE 1971 1
Willem Vinck
v Commission of the European Communities
Case 53/70
Summary
1. Officials — Application — Implied rejection — Expiry of limitation period for appeal — Express rejection — Absence of any new factor — Confirmatory nature — No act adversely affecting applicant
2. Action for damages — Connexion with action for annulment (Staff Regulations, Article 91)
1. A decision which is confirmatory of designed to obtain for the applicant an earlier implied decision of refusal the equivalent of benefits which he does not cause time to begin to run has been refused by a decision against afresh for the purpose of bringing which an action for annulment is proceedings. inadmissible must meet the same fate 2. An action for damages which is only as the latter action.
In Case 53/70
Willem Vinck an official of the Commission of the European Communities, residing at Overijse (Belgium), represented by Jacques Putzeys, Advocate of the Cour d'appeal, Brussels, with an address for service in Luxembourg at the Chambers of Nicolas Wennmacher, huissier, 17 boulevard Royal, 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 at the office of its Legal Adviser, Émile Reuter, 4 boulevard Royal, defendant,
Application relating, at the present stage of the proceedings, to the admis sibility of Mr Vinck's application for, on the one hand, the annulment of the decision by the President of the Commission of 21 May 1970 rejecting his application of 16 February 1970 for compensation for the 'exceptional damage' arising from 'irregular development of his career' as well as for 'career compensation' and, on the other hand, for damages,
1 — Language of the Case: French.
JUDGMENT OF 24. 6. 1971 — CASE 53/70
THE COURT (Second Chamber)
composed of: A. Trabucchi, President of Chamber, P. Pescatore (Rapporteur) and H. Kutscher, Judges,
Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts On 2 December 1966 Mr Vinck reques ted that the establishment of the On 5 May 1958 Mr Willem Vinck specialized department managed by him entered the service of the Commission be put on an official basis and be in of the EAEC, with a basic salary cor corporated in the Commission's detailed responding to Grade A 5, as Secretary list of posts. of the Directorate-General for Industry By memorandum of 24 August 1967, and the Economy, it being his particular which was confirmed on 25 September task to be concerned with questions of 1967, Mr Vinck asked the Director- re-cycling and technical security. General at the Directorate-General for Un 1 May 1961 Mr Vinck ’s basic salary Personnel and Administration that de was raised to the level corresponding cisions be taken during 1967 in regard Grade A 4, Step 1. to his promotion to Grade A 3. Mr VincK was established in Grade A 4 un 19 October 1967 he received the
with effect from 1 January 1962. reply that promotion is not a question Un 14 May 1963 Mr Vinck applied for of right but one of eligibility and that the post of Head of Division in Grade failure to promote cannot constitute an A 3 in the Directorate-General for In act having adverse effect within the dustry. meaning of the Staff Regulations. This application was not granted. At its 25th meeting on 13, 14 and 15 On 1 July and 11 October 1965 Mr February 1968 the Commission adopted Vinck again unsuccessfully applied for the new detailed list of posts for its de two posts which had been declared partments, which was published in the vacant in the departments of the Com Staff Courier of 11 March 1968. mission. Also on 11 March 1968 Mr VincK
By internal notice of 30 March 1966 the asked the President of the Commission Directorate-General for Industry and the under the provisions of Article 90 of the Economy decided that 'work concerning Staff Regulations for further details on safety on the nuclear installations shall the structure of the establishment plan be . . . carried out by the safety depart in so far as his own sphere of work was ment under the direction of Mr Vinck concerned. . . . under the direct responsibility of On 14 March 1968 Mr Vinck requested the Director for Industry'. the Directorate-General for Industry and
VINCK v COMMISSION
the Economy to consider his application On 11 March 1969 he was notified that for promotion to Grade A 3 during the his application was refused. course of 1968. Un 26 July 1968 the President or the By decision of 30 May 1968, which was Commission informed Mr Vinck in reply notified to Mr Vinck on 12 June 1968, to his request of 11 March 1968 that the Commission appointed him, in the 'it was . . . with full knowledge of the framework of its new detailed list of facts that the Commission was able to posts made as part of the restructuring decide on the organization of the de and rationalization of the whole of its tailed list of posts of its departments' and departments to the post of Principal Ad confirmed to him that it had not con ministrator in the Industrial Promotion sidered it necessary to create a special of Nuclear Energy and Advanced Tech ized department in respect of work in nology Division of Directorate C of volving the safety of nuclear installa Directorate-General HI (Industry). tions. On 13 June 1968 the Commission pub- On 7 August 1968 Mr Vinck, relying lished a decision of the Commission in on Article 90 of the Staff Regulations, volving changes in the administrative pointed out to the President of the structure of Directorate C of Directorate- Commission that his letter of 26 July General III. 1968 only amounted to a partial reply Un 14 June 1968 Mr Vinck applied for to the requests addressed to the appoint posts declared vacant by Notices COM/ ing authority and that in particular it did 76 and COM/77 respectively. not refer to the formal request of 17 On 17 June 1968 Mr Vinck drew the June 1968. attention of the President of the Com un a August 1968 Mr Vinck, by a mission under Article 90 of the Staff note addressed to the President of the Regulations to the fact that the individ Commission, renewed his application for ual decision of 30 May 1968 and the the post declared vacant under No Commission's measure of 13 June 1968 COM/77 and asked for an acknowledge on the alteration of the administrative ment of receipt of his requests of 17 structure of Directorate C of Directorate- June and 7 August 1968. General HI 'might imply a refusal to On 4 September 1968 Mr VincK again keep (him) in the post of the head of applied for a post declared vacant. an independent department' and reques Un January 1969 he was notified that ted that he be allowed to retain his this application had been refused. 'administrative independence as head of On 18 December 1968 the President or
department'. the Commission confirmed to the appli On 10 July 1968 Mr Vinck informed cant in reply to his requests of 17 June, the President of the Commission, under 10 July, 7 August and 23 August 1968 Article 90 of the Staff Regulations, inter that the Commission had decided with alia that the decision to alter the admin full knowledge of the facts on the organ istrative structure of the Directorate- ization of the detailed list of posts of General to which he belonged constitu its departments and that this list did ted a new measure of a general nature not include a specialized department re which caused new limitation periods to lating to questions involving safety of begin to run, and as regards the notifica nuclear installations since these only tion on 12 June 1968 of the decision of represented part of the work of the 30 May, that the date of 12 September division within which he was required to 1968 could be treated as the last day discharge responsibilities appropriate to for bringing an appeal against an in his grade, more specifically in so far as dividual measure. questions of safety of nuclear installa In July 1968 Mr Vinck applied for a tions were concerned. post declared vacant under No COM/42. On 25 January 1969 Mr Vinck reminded
JUDGMENT OF 24. 6. 1971 — CASE 53/70
the President of the Commission under Article 90 of the Staff Regulations that, Article 90 of the Staff Regulations of should it be confirmed that his applica his 'legitimate aspirations to be pro tion to take part in Internal Competi moted to the post of Head of Division tion COM/77 was not successful, the III—C-4' and informed him that since department concerned with technical as the Commission refused to continue the pects of 'safety of nuclear installations' specialized department for 'Safety of be re-established with the status of a Nuclear Installations' and since as of division and that procedures be put in now it appeared to prejudge his ultimate hand to enable him to be appointed to position in the administration, he felt Grade A 3 as the head of that depart obliged to consider the letter of 18 ment.
December 1968 as amounting to a On 12 November 1969 the President of measure of an individual character in the the Commission informed Mr Vinck that sense of Article 91 (2) of the Staff although he had appeared on the list Regulations. of suitable candidates, his application for On 27 January 1969 Mr Vinck submit the post declared vacant in Notice of ted his application for the internal com Competition No COM/77, had not been petition opened for the purpose of filling successful. the post declared vacant under No On 24 November 1969 Mr Vinck ap COM/77. plied for the post declared vacant in On 6 May 1969 Mr Vinck drew the Notice of Competition No COM/783/69. attention of the President of the Com On 6 April 1970 the President of the mission under the provisions of Article Commission informed Mr Vinck in re 90 of the Staff Regulations to inter alia ply to his request of 8 September 1969 the fact that the absence of a reply to that a change in the administrative struc his request of 25 January 1969 amoun ture of the Directorate-General for In ted under Article 91 (2) of the Staff dustrial Affairs was under consideration Regulations to an implied decision of and that the Commission which alone rejection but that since he was unable was competent in the matter of the or to assess in what manner such a rejection ganization of its departments would have might be interpreted, he did not have occasion to examine the considerations available to him official data that would which he had put forward. enable him to decide whether or not an On 16 February 1970 Mr Jacques application to the Court was appropri Putzeys, Mr Vinck's Legal Adviser, ad ate. dressed a request to the President of On 14 May 1969 the Commission de the Commission under Article 90 of the cided not to reply to the complaint Staff Regulations which primarily sought made by Mr Vinck on 25 January 1969. an award of compensation 'for the ex On 1 August 1969 the President of the ceptional damage arising from the ir Commission informed Mr Vinck in re regular development of Mr Vinck's car ply to his request of 6 May 1969 inter eer' and secondarily 'the termination in alia that the post declared vacant under a reasonable manner of the presently con No COM/42 had been filled under the tinuing damage by way of career com- pensation’. provisions of Article 29 (2) of the Staff Regulations. By letter of 21 May 1970 the President By note of 5 September 1969 Mr Vinck of the Commission in reply to the re requested the President of the Commis quest of 16 February 1970 informed Mr sion under Article 90 of the Staff Regu Vinck that the Commission had taken its lations to be informed of the result of decision in full knowledge of the facts Internal Competition No COM/77. on the organization of the detailed list On 8 September 1969 Mr Vinck asked of posts relating to its departments; that the President of the Commission under it was for the Commission alone to de-
VINCK v COMMISSION
cide whether to increase, to continue or relating to the admissibility of the appli to reduce activity in any particular field cation and to find against the applicant and to organize its departments in a by declaring the application wholly in manner which it considered most ap admissible. propriate; that the applications submitted In his observations lodged on 11 Decem by Mr Vinck for various posts of head ber 1970 the applicant asked the Court of division had been examined under to declare his application admissible or the conditions laid down by the Staff at least to reserve its decision on the Regulations; that no irregularity had objection for the final judgment and to appeared in the procedures which had fix fresh time-limits for the continuation resulted in the appointment of other of the proceedings on the substance of candidates; that promotion to Grade the case. A 3 could not be considered as right; The Court, after hearing the report of finally, that the Commission could not the Judge-Rapporteur and the views of consider Mr Vinck's request to be well the Advocate-General, decided to open founded. the oral procedure in relation to the objection. The parties presented oral argument on II — Procedure the admissibility of the application at the hearing on 1 April 1971. On 28 August 1970 Mr Vinck brought The Advocate-General delivered his an action in which he claims that the Court should: opinion on the admissibility of the ap plication at the hearing on 9 June 1971. (a) in the first place — annul the decision of the President
of the Commission dated 2 May III — Submissions and argu 1970 and notified on 29 May ments of the parties 1970; on the admissibility — in the exercise of its unlimited of the application jurisdiction, declare that by reason of the acts and omissions of the The submissions and arguments of the Commission he has suffered ex parties on the admissibility of the ap ceptional damage, the amount of plication may be summarized as follows: which to be assessed in a sum The defendant, as the applicant in con which the Court shall consider nexion with the interlocutory application, fair and reasonable; objects to the admissibility of the appli — order the Commission to termin cation on several grounds: ate in a reasonable manner the (a) As regards the application for annul presently continuing damage by ment of the decision of the President of way of career compensation; the Commission of 21 May 1970, re (b) alternatively, award him compensa jecting the applicant's request of 16 tion for exceptional damage since his February 1970, made before the institu tion of proceedings: legitimate expectations had been deceived as the result of the Com According to the case-law of the Court, mission's conduct; although a party may proceed by way of action founded on the liability of the (c) in any event order the Commission administration without being obliged to to pay the costs. seek the annulment of the illegal measure By document lodged on 3 October 1970 causing him damage, he cannot by this the Commission asked the Court pur device evade the inadmissibility of a suant to Article 91 of the Rules of Pro claim founded upon that same illegality cedure to rule on a preliminary objection and having the same financial ends.
JUDGMENT OF 24. 6. 1971 — CASE 53/70
Moreover, where the applicant fails to As regards the failure to appoint the contest in good time the measures from applicant to a post in Grade A 3 after which the damage relied upon clearly there had been several vacancies, he stems, he cannot repair this omission could and ought to have contested the and in a certain sense obtain a fresh appointments made not more than three opportunity of appealing by means of a months after being officially informed of claim for damages. If therefore the ad the matter by the letter of the President ministration is entitled to plead the in
of the Commission of 26 July 1968. admissibility of such an action for dam As regards the rejection or the applicant ’s ages, it must also be able to do so in request, made before the proceedings relation to an action for annulment of a were instituted, for the termination of decision—whether express or implied— the continuing damage to the applicant rejecting such a claim for damages. by way of career compensation it must In the present case the damage which be said that this request was inadmis the applicant claims to have suffered is sible: it is wholly lacking in precision; it based on the alleged 'irregularities' in the does not pursue an objective capable of development of his career, all of which being attained at law; it invites the Court in the final analysis amount to the fact to issue instructions to the Commission. that he was not appointed to a post in (b) As regards the application for dam
Grade A 3. However, the applicant could ages in respect of exceptional damage in fact have contested in good time the allegedly suffered by the applicant 'by measures in question in order to avoid reason of the act and failure to act on the damage of which he now complains. the part of the Commission' and the As regards more particularly the Com application for 'career compensation', mission's refusal to continue an inde these are equally inadmissible for the pendent department for the 'Safety of reasons set out above. Nuclear Installations', intended to be (c) As regards the application for com transformed into a division directed by pensation in respect of exceptional dam the applicant, the latter ought, not later age by reason of the applicant's having than four months after his request of been deceived in his reasonable expec 17 June 1968, to have brought an action tations, it cannot be accepted that an either against the Commission's decision official who failed to contest measures
published on 13 June 1968 on the or which allegedly caused him damage and ganization of the detailed list of posts the illegality or the irregular nature of relating to its departments, or against the which was not proved in good time, may Commission's decision of 30 May 1968 obtain compensation by putting forward notified on 12 June 1968, which defined ex post facto and, moreover, in a very his duties. Even if against all likelihood vague manner, such a complaint. one could treat the reply from the Presi The applicant (the defendant in the dent of the Commission dated 18 interlocutory proceedings) takes the view December 1968 as not merely confirma
that at the present stage of the proceed tory, the applicant ought to have made ings all that has to be done is to con an application to the Court before 19 sider the admissibility of the application March 1968. ratione taemporis; a discussion as to the As regards the failure to promote him admissibility of the application ratione to Grade A 3 during 1966 and 1967, the materiae would go to the substance of applicant ought at least to have contested the case.
The only question to decide is the decisions appointing other officials that whether the applicant was barred not more than three months after be from making his complaint of 16 coming aware of the insufficient informa February 1970 and the present appli tion in the Commission's hands to which cation. he attributes the damage to his career. (a) As regards the admissibility of the
VINCK v COMMISSION
application as a whole, the applicant to career prospects recognized by the argues that the request made by him Staff Regulations. on 16 February 1970 under the provis The second ground is admissible on the ions of Article 90 of the Staff Regula basis of an objective finding of disregard tions was a new request in that for the of the principle of equality of rights of first time it was based on the failure to officials eligible for promotion, a right respect his career prospects. which is recognized by Article 45 of the Moreover, the recognition of subjective Staff Regulations. rights which the Staff Regulations ac There is therefore no question of once cord to officials in questions relating to again calling in issue the promotions or their careers cannot be qualified by any appointments which have taken place, or limitation as to time. the Commission's detailed list of posts, (b) As regards the admissibility of the or even of obtaining the same result by application for annulment it must be indirect means; it is merely a matter of said that this application is not intended Furnishing proof, by replying on objec once more to call in question the legality tive factors which can no longer be dis of individual measures which have be puted, that the rights to which the ap come final or of obtaining the same re plicant is entitled under the Staff Regula sult; it is purely a matter of the Court's tions have not been respected by the being asked to find, by annulling the Commission. decision of 21 May 1970, that the Com (c) The application for compensation is mission by a series of measures, actions also admissible, since it is based on the and attitudes has disregarded the appli Commission's misuse of powers: it is ap cant's right to a normal development of parent from the circumstances surround his career and to his career 'prospects'. ing the applicant's career that the Com This subjective rights results in particu mission deliberately intended to deny lar from Articles 5 (3), 29 and 45 of the him a normal career; the refusal to ap Staff Regulations as well as from Annex point or promote him to one of the 1 thereto. numerous vacant posts for which he had The first ground of application is admis applied cannot be justified on grounds sible since it is based on an objective based on the interests of the service but finding of failure to appoint or pro amounts to a genuine disguised discip mote the applicant ever since he was linary penalty and accordingly to a mis established, a failure which is contrary use of powers.
Grounds of judgment 1 The application seeks the annulment of the communication of 21 May 1970 by which the President of the Commission rejected certain requests made by the applicant in relation to his position in the administration and to the development of his career.
2 Furthermore, the Court is asked to find proved the exceptional damage which the applicant claims he has suffered by reason of the Commission's attitude towards him and to draw the consequences from this finding by awarding him either a 'career compensation' or appropriate financial damages.
3 The Commission, pursuant to Article 91 of the Rules of Procedure, has asked the Court to rule on the admissibility of the application without going into the substance of the case.
JUDGMENT OF 24. 6. 1971 — CASE 53/70
4 The admissibility of the different heads of claim must be considered in the light of what preceded the communication of 21 May 1970, which is the subject-matter of the application.
It appears from the file that the applicant repeatedly submitted his application for vacant posts which would have entailed his promotion to Grade A 3 but that his applications were not granted by the Commission.
6 Moreover, he repeatedly addressed requests to the Commission relating to the creation of an independent department in his field the management of which he could have assumed under conditions which would have ensured his promotion.
7 The Commission nevertheless did not accept any of the proposals which the applicant made on this subject.
8 Faced with the Commission's attitude towards him, the applicant, by letter of 16 February 1970, asked for the award of compensation 'for exceptional damage arising from the irregular development of career' and secondarily for 'the termination in a reasonable manner of the presently continuing damage by way of career compensation'.
9 In his reply of 21 May 1970 the President of the Commission reminded the applicant of the fact that it is for the Commission, and for the Commission alone, to decide on the organization of its departments, that the applications made by him for several posts of head of division had been examined under the conditions laid down in the Staff Regulations, that no irregularity had been found in the procedures which resulted in the appointment of other applicants, and finally that promotion to Grade A 3 cannot be considered as a right and that the Commission could not therefore accept as well founded the requests formulated in the letter of 16 February 1970.
On the one hand the period for bringing an action relating to the implied decision of rejection, resulting from the Commission's silence on the appli cant's last request dated 16 February 1970 had expired before the application was made.
11 On the other hand by its letter of 21 May 1970 the Commission did no more than confirm the position which it had previously taken on the applications which the applicant had made on the proposals which he had made in relation to the re-organization of the departments and the creation of an independent department under his authority.
12 This communication did not therefore have the effect of causing time to run afresh in favour of the applicant for the purposes of an appeal to the Court.
VINCK v COMMISSION
13 The secondary conclusions formulated for the purpose of obtaining 'career compensation' or a finding of 'exceptional damage' are only designed to obtain for the applicant the career benefits which have hitherto been refused to him, or their equivalent in the form of damages.
14 These heads of the application must therefore meet the same fate as the principal claim.
15 It follows from the foregoing that the application must be dismissed as inadmissible in its entirety.
Costs
16 Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
17 The applicant has failed in his application.
18 Nevertheless, under the terms of Article 70 of the Rules of Procedure, institutions shall bear their own costs in proceedings commenced by servants of the Communities.
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 Staff Regulations; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure, especially Article 91;
THE COURT (Second Chamber)
hereby:
1. Dismisses the application as inadmissible.
2. Orders the parties to bear their own costs.
Trabucchi Pescatore Kutscher
Delivered in open court in Luxembourg on 24 June 1971.
A. Van Houtte A. Trabucchi Registrar President of the Second Chamber