C-55/70

2. Officials — Recruitment — Rationalization of departments as a result of the Merger Treaty — Voluntary transfer to lower grade — Priority right of person concerned to be transferred to a post corresponding to his grade — Strict application (Regulation No 259/68 of the Council, Article 8)

1. Since Article 29 of the Staff Regu­ of the Council derogates from the lations treats transfer on a par with principle of equality of candidates promotion, a difference in grade be­ eligible for promotion and transfer tween candidates for a post cannot and cannot therefore be applied, hav­ per se constitute a decisive factor in ing regard both to its very precise the choice which the competent ad­ objective and its exceptional nature, ministrative authority must make. in cases other than those to which 2. Article 8 (1) of Regulation No 259/68 it expressly refers.

In Case 55/70

ANDREAS REINARZ, an official of the Commission of the European Com­ munities, residing at 3 Groenstraat, Tourneppe (Belgium), represented by A. J. Hammerstein, Advocate at the Arrondissementsrechtbank, Maastricht, with an address for service in Luxembourg at the Chambers of A. Elvinger, Advocate, 84 Grand-rue, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Louis de la Fontaine, acting as Agent, assisted by H. Ph. Visser't Hooft, a member of the Legal Department of the Commission, with an address for service in Luxembourg at the office of its Legal Adviser, É. Reuter, 4 boulevard Royal, defendant, 1 — Language of the Case : Dutch.

JUDGMENT OF 12. 5. 1971 — CASE 55/70

Issues of fact and of law

I — Summary of facts and Dousset, who had been appointed Direc­ procedure tor in the Directorate-General for Trans­ port by decision of 15 January 1969, The facts of the case may be summarized the applicant, on 24 May 1969, lodged as follows: a complaint through official channels The applicant, who entered the service against this decision. On 18 June 1969, of the ECSC in 1952, was appointed in following the judgment of the Court of 1959 Director of the Rates and Con­ 6 May 1969, the Commission reinstated ditions Directorate of the Directorate- the applicant as an official in Grade A 2 General for Transport of the Commis­ with effect from 1 October 1968 and sion of the EEC. By decision of 20 gave him a newly created post as Prin­ March 1968, taken under the terms of cipal Adviser in Grade A 2 at the the rationalization of departments, con­ Directorate-General for Transport. sequent on the merger of the executives, Following an action which the applicant Mr Reinarz was appointed temporary brought on 26 September 1969 for the Principal Adviser prior to having his purpose of obtaining, inter alia, the an­ services terminated on 26 June 1968 nulment of the decision of 18 June 1969 under Article 4 of Regulation No 259/68 by which the Commission had appointed by a decision which was to become him Principal Adviser and the decision effective on 1 October 1968. Following of 15 January 1969 appointing Mr an action which the applicant brought Dousset Director in the Directorate for on 29 July 1968 (Case 17/68) the Court Harmonization, Coordination and Finan­ by judgment of 6 May 1969 ([1969] cial Control of Infrastructures, the Court, ECR 62) annulled the decision of 20 by judgment of 13 May 1970 in Case March 1968 assigning the applicant to a 46/69 ([1970] ECR 275), dismissed the post of Principal Adviser and that of application against the decision of 18 26 June 1968 terminating his service. June 1969 as inadmissible and annulled Meanwhile, having learned on 25 the aforementioned decision appointing February 1969 of the promotion of Mr Mr Dousset. The main ground of this

annulment was that, when the Com — make such order as to costs as is mission appointed Mr Dousset, it made appropriate. its choice without having at its disposal a factor which ought to have been taken into account for it to be able to exer III — Submissions and argu cise its discretion fully, since, as a re ments of the parties sult of its abovementioned decision of 26 June 1968, it had prevented the The submissions and arguments of the applicant from applying for the post to parties may be summarized as fol

torate. After making a complaint through tain a balance in the allocation on a official channels to the Commission geographical basis of posts of Director against this decision, the applicant in the Directorate-General for Transport brought the present application for its without regard to the interests of the annulment on 11 September 1970. service. The facts which have been The written procedure followed the established by the Court in the two normal course. previous judgments show the intention The Court (Second Chamber), after of the Commission from the outset to hearing the report of the Judge-Rap give the post in question to a director porteur and the views of the Advocate- of French nationality.

parties the service. It appears from the minutes of the meet The applicant claims that the Court ing on 17 June 1970 that the Commis should: sion examined the reports of the can (1) Declare null and void or at least didates of Grade A 3 from the point of annul the decision of the Commission view of their ability, efficiency and con of unknown date appointing Mr duct in the service but not that it made Dousset Director in the Directorate- a similar examination with regard to the General for Transport; candidates of Grade A 2.

JUDGMENT OF 12. 5. 1971 — CASE 55/70

under Article 33 of the Staff Regulations ate to the detailed description which the no such report is made for officials in Commission gives to it, was not de Grade A 2. It appears however from the clared vacant until after the Court, by minutes of the meeting of the Com its judgment of 6 May 1969, had com mission on 17 June 1970 that all can pelled the Commission, irrespective of its didates were in fact considered. The fact own views, to re-establish the applicant that the document of 12 June 1970 in its service and in his duties as an mentions only four applications is due official in Grade A 2. If this post met to a simple copying error arising from an objective requirement of the service, the heading of the document in ques the Commission would already have ap tion which wrongly states 'Provision for pointed an official to fill it. It is thus a post of Grade A 3 vacant in the through giving priority to the concern Directorate-General for Social Affairs', for allocation on a geographical basis in a post for which four people in fact the Directorate-General for Transport applied. that the Commission refused to transfer

To the appli the maintenance of career prospects must cant's argument that Mr Dousset had a take precedence over the concern to lower grade than that of the applicant maintain the broadest possible geographi and therefore there could not be said to cal basis and, on the other hand, an be a choice between candidates with official may have a legitimate interest roughly equal qualifications, the defend in preferring one post to another. ant states that in making an appointment The applicant observes that the extract the level of qualification cannot be solely from the minutes of the meeting of the determined according to the grade, since Commission on 17 June 1970 contains Article 29 of the Staff Regulations rules no note of the background of the case out any priority for transfer in relation and in particular does not mention to promotion. either the two judgments of the Court Contrary to the applicant's contention or the criteria laid down therein.

REIN ARZ v COMMISSION

Grounds of judgment

1 By application filed on 11 September 1970, the applicant has asked the Court 'to declare null and void or, at least, annul the decision of the Commission, of unknown date, appointing Mr Dousset Director in the Directorate-General for Transport.'

JUDGMENT OF 12. 5. 1971 — CASE 55/70

The first complaint

2 The applicant maintains that the decision challenged infringes Article 7 (1) and the third paragraph of Article 27 of the Staff Regulations and disregards the principles laid down by the judgment of 6 May 1969 and in Case 17/68 in view of the fact that the decision is inspired solely by the Commission's concern to maintain the balance on a geographical basis of the allocation of posts of Director in the Directorate-General for Transport, without regard to the interests of the service.

3 The applicant bases his complaint first on the fact that he was already established in Grade A 2, whereas the official chosen for the post of Director, which was the subject-matter of the procedure, had a lower grade.

9 The applicant alleges infringement of an essential procedural requirement in that the decision challenged does not show whether the Commission took into

REIN ARZ v COMMISSION

account the judgments given by the Court on 6 May 1969 and 13 May 1970 in the actions previously brought against it by Mr Reinarz.

10 The only obligation on the Commission under the Treaty was in the present case to comply with the judgments which have been given, and it is not disputed that this has been done.

11 On the other hand, there is no necessity to refer to it in the decision in question.

12 Accordingly this complaint is unfounded.

The fourth complaint

18 The applicant maintains that the decision challenged is contrary to a general principle of good administration requiring the administrative authority to repair as far as possible the fault or omission of which it has been guilty.

JUDGMENT OF 12. 5. 1971 — CASE 55/70

19 The decision appointing Mr Dousset, dated 15 January 1969, was annulled by the Court because when the Commission made this appointment it did not have at its disposal all the factors which would have been taken into account if by its decision of 26 June 1968 concerning the termination of the appli­ cant's services—a decision annulled by the judgment of 6 May 1969—it had not illegally prevented the applicant from applying for the post to which Mr Dousset had been appointed.

20 By initiating de novo the procedure to fill the post in question and by thus giving the applicant the opportunity to apply, the Commission did what was necessary to rectify the irregularity in procedure already found by the Court.

21 Accordingly this complaint is unfounded.

THE COURT (Second Chamber)

hereby:

I. Dismisses the application as unfounded;

REIN ARZ v COMMISSION

2. Orders the parties to bear their own costs.

Trabucchi Pescatore Kutscher

Mr President, permanent and not temporary basis. Members of the Court, This decision however did not satisfy Mr Reinarz, especially as during the Mr Reinarz has been Director in the time of his irregular dismissal from the Directorate-General for Transport of the service, the Directorate which he had Commission since 1959. wanted to obtain had been given to On the merger of the executives this another official, Mr Dousset. Directorate-General was reorganized and Mr Reinarz then asked the Court to it is with this reorganization that the annul first his appointment as Principal career difficulties experienced by Mr Adviser and secondly the appointment Reinarz began. of Mr Dousset as Director. Until the merger this Directorate- In its judgment of 13 May 1970, which General had four Directors but in the I shall likewise mention later, the Court new detailed list of posts it had only rejected the submissions of Mr Reinarz three. directed against his appointment as The applicant's candidature for one of Principal Adviser, but on the other these Directorates was not accepted and hand annulled the appointment of Mr in 1968 he was appointed Principal Dousset as Director. Adviser on a temporary basis and then Following this second judgment, the some months later he was dismissed Commission reconsidered the question under the provisions of Regulation No and once again appointed Mr Dousset 259/68, the purpose of which was to as Director. It is this appointment which provide for personnel problems arising the applicant is asking the Court to from the merger of the executives. annul in the present application. However by a judgment of 6 May 1969, In support of his application he relies to which I shall return later, the Court on numerous pleas which I think may annulled the decision appointing Mr be classified into three groups. Reinarz temporary Principal Adviser A — The first group of pleas relates to and the decision terminating his service. formal defects or procedural irregulari­ Following that judgment the Commis­ ties which are claimed to exist. sion once again appointed Mr Reinarz (a) First of all the applicant maintains as Principal Adviser but this time on a that there are insufficient grounds for