C-189/73

JUDGMENT OF THE COURT (SECOND CHAMBER) OF 19 MARCH 1975 1

Gijsbertus Van Reenen v Commission of the European Communities

Case 189/73

Summary

1. Officials — Recruitment — Competition — Organization — Expediency — Discretionary power of the Administration (Staff Regulations, Article 29)

2. Officials — Duties corresponding to a higher grade — Acceptance — No right to reclassification (Staff Regulations, Article 7)

Application principally for recognition of the applicant's right to be classified in career bracket A5—A4 and for a ruling that the Commission wrongfully and negligently omitted to take the measures necessary to ensure this classification,

THE COURT (Second Chamber)

composed of: A. J. Mackenzie Stuart, President of Chamber (Rapporteur), H. Kutscher and M. Sørensen, Judges,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

higher category has been provided for in When, in February 1970, the Head of my case. Personnel and Administration was As I stated in my aforementioned transferred to another post Mr. Van memorandum, I believe I am entitled to Reenen assumed, besides the duties claim appointment to Category A on the devolving upon him personally, those basis of my education, experience and previously untertaken by that official in duties'. Grade A4. The Commission and the On February 27 1963 Mr Van Reenen applicant agree that from that time on, was established as an Official in Grade at least part of the duties undertaken by B2 and on 1 November 1963 he was the applicant have been of a level higher promoted to Grade B1 than those pertaining to Category B. In On 16 October 1964 he was transferred the applicant's opinion, they relate to career bracket A4-A5. to the Petten Establishment to carry out the duties of Head of the Local Affaires Despite the rule that admission to the Office. next higher career bracket depends on On 5 April 1966 the applicant wrote success on an open reserve competition, another memorandum to the administra the Commission organized competition tion concerning his personal classifica COM/576/70 which led to the tion, asking to be appointed to Category appointment to Grade A7 of an official A. He added that, if necessary, he was in Category B whose name did not appear willing to take part in a competition. in any reserve list constituted by competition for the future recruitment of On 24 April 1969, while organizing

of internal competitions on the basis of in the following terms: qualifications and tests, would be included in the reserve list to be drawn 'I hereby request the appointing authority to consider appointing me to up following those competitions. Category A so that I may continue to That decision of 24 April 1969 was exercise my present duties. This request brought to the attention of the staff is based on the following considerations: through the Staff Courier No 81 of 11 September 1969.

the Department for Personnel and That is why I entered the competition Administration, the Head of which was published under No COM/A/264. On at the time an official in Grade A4. 18 August 1972 I made to the

JUDGMENT OF 19. 3. 1975 — CASE 189/73

appointing authority under Article 90 Taking account of the above of the Staff Regulations a complaint considerations, I feel I am justified in relating to that competition. That requesting the appointing authority to complaint was registered at the propose my appointment to Category Secretariat-General of the Commis­ A so that I may continue to perform sion under No 490. my present duties'.

In the meantime, I learned that an On 10 September 1973 the Commission official in Category B who had not replied to the applicant's complaint. participated in an internal competi­ That reply was as follows: tion for the drawing up of a reserve 'By your letter of 4 October 1972, list for the future recruitment of registered at the Secretariat-General administrators had however been under No 7 134, you made a request to appointed to post COM/576/70 (A7 the appointing authority in accordance — A6). with Article 90 (1) of the Staff Regulations in which you asked to be 3. The manner in which post appointed to Category A. On 9 May COM/576/70 was filled leads me to 1973 you lodged a complaint, which was the conclusion that the aforemen­ registered on 25 May 1973 under No tioned decision of the Commission of 621, against the implied decision 1969 is no longer applied. rejecting your aforementioned request. I 4. As I also pointed out at the end of my regret very much having to inform you complaint of 18 August 1972, I hold a that the Commission considers your diploma which is recognized as complaint to be unfounded for the equivalent to a university degree and I following reasons: have for several years discharged — It is true that in Competition duties always previously performed COM/576/70 you obtained the by an official in career bracket A5 — minimum number of points required A4. (35/60) and that you gave evidence In addition I have now been of a wide general knowledge. successful in Internal Competition — In Notice of Competition COM/ COM/576/70 (Administrators). 576/70 (Doc. 1X/1253/72) it was

however stated that candidates were II — Conclusions of the not required solely to obtain a parties minimum number of points but had also to satisfy other conditions. In his application the applicant claims that the Court should: Those conditions included in particular a knowledge of Italian Law and a good 1. Declare null and void the express knowledge of Italian. You were admitted rejection by the Commission, in its to the competition because the Selection letter of 10 September 1973, of the Board wished to convince itself of your claim made by the applicant in his knowledge of Italian language and law. request of 4 October 1972 to be Since you do not possess the necessary classified in Category A, at a grade knowledge of the Italian language corresponding to his duties; and since you stated expressly, as is apparent from the report of the Selection 2. Declare and rule that by virtue of the Board, that you have no knowledge of principle of correspondence between Italian law, it was impossible for the duties und grades the applicant has Selection Board to include you on the the right to be classified in career list of suitable candidates as provided for bracket A5 — A4, which corresponds in the first paragraph of Article 30 of the to the level of his duties,

damage; registered on 16 January 1974, the Commission raised a plea of 5. Declare and rule that in respect of inadmissibility. material damage the defendant must pay the difference between salary and On 15 March 1974 the applicant lodged benefits paid in respect of Grade B1 his submissions on the application on a and those to which he would have procedural issue. been entitled had he been duly In a letter of 28 March 1974 the classified in Grade A5, the step being Commission replied to a request by the determined in accordance with Article Court to give its views on points raised 46 of the Staff Regulations; in the submissions of the applicant in the

7. Order the defendant to bear the costs. of the Judge-Rapporteur and the views of the Advocate-General, the Court In its application on a procedural issue, (Second Chamber) decided that there the Commission claims that the Court was no need for any preparatory inquiry. should:

— dismiss the application as inadmissi­ normally being the date of registration at ble; the Secretariat-General of the Commis­ sion, the complaint is still out of time. — order the applicant to bear the costs. The Commission does not deny that for In its defence, the Commission contends this purpose account could be taken of that the Court should: the date when the complaint was — dismiss the action as unfounded; submitted to the applicant's immediate superior. — order the applicant to bear the costs. But the Commission maintains that there In its rejoinder the Commission contends is no evidence in this case that the that the Court should: applicant's complaint was conveyed to his immediate superior on 9 May 1973. 1. Dismiss as unfounded the action brought before it against the express The applicant claims and offers evidence decision of 10 December 1973 of the fact that he delivered a copy of his rejecting the applicant's complaint; complaint on 9 May 1973 to the postal service at Petten; he denies responsibility 2. Declare that a ruling cannot be given for the fact that this complaint was not on the applicant's demands which are registered until 25 May 1973. unrelated to the submissions in the He claims that the relevant date is the originating application, in that these date when he submitted the complaint to demands relate to the merits of an his immediate superior. implied decision of rejection, the annulment of which has not been 2. Mere confirmatory measure sought; According to the Commission, the 3. Alternatively, dismiss these demands applicant's requests in 1962 and 1963 as unfounded; were followed by implied decisions of 4. Order the applicant to bear the costs. rejection which were not contested within the periods prescribed and the express decision of rejection of 10 September 1973 was merely a decision of III — Submissions and argu­ a confirmatory nature. The rejection of ments of the parties the complaint in May 1973 could not reopen the period for the making of an application to the Court. A — Admissibility The applicant denies that his memoranda of 1962 and 1963 should be 1. Lateness of the complaint deemed to be requests within the The Commission maintains that in view meaning of Article 90 of the Staff of the dates at the head of the Regulations, since they were not applicant's request and complaint, the addressed to the appointing authority. period for the lodging of a complaint Moreover, the applicant claims that a through official channels came to an end new fact had occurred. For the purpose on 6 May 1973. Since the complaint was of making possible the applicant's lodged only on 9 May 1973, it is out of promotion to Category A a vacancy time and the application is therefore notice was drawn up containing a inadmissible in accordance with Article description which corresponded to the 91 of the Staff Regulations. nature of the post occupied by the Even if the period is deemed to applicant, but in the end the competition commence on the date of receipt of the did not take place because the documents by the Commission, this Commission decided in 1969 that

Secondly, the Commission maintains The refusal to give effect to the that the inadmissibility of an application applicant's complaint made it impossible for annulment entails that of the claim for him to be promoted to Category A for damages if the latter is closely linked and affected him adversely. The Staff to the application for annulment. Regulations do not recognize a reply to an application through official channels The mere allegation of a wrongful which is both implied and express. The omission is, on the one hand, irrelevant Administration's reply of 10 September and, on the other hand, too brief to be 1973 must therefore be annulled on the considered admissible. Since there is no ground that there is no statement of statement of grounds supporting this reasons. submission, the latter appears too The Commission claims that even if it is lacking in substance to be regarded as satisfying the requirements of Article 38 admitted that an incomplete or partial (1) (c) of the Rules of Procedure. solution was given to the problem raised in the request of 4 October 1972 it In the applicant's opinion, if in the nevertheless was accompanied by an complaint, a document which is implied decision of rejection. Article 25 normally drawn up by the official can only relate to express decisions. concerned without any legal assistance, The Staff Regulations, which recognize the contested measure is adequately both express and implied decisions of specified and if the arguments are rejection, do not in any event preclude, sufficiently detailed, the complaint must in the case of a request made up of be accepted as including, by implication, several heads or of several grounds, an every subsidiary claim logically flowing express decision with regard to part of from it, and in particular a claim for the request, rejecting certain heads or damages. certain grounds, the remainder being The question whether the application for rejected by implication through the very annulment and the claim for damages fact of the silence maintained thereupon are separable is a substantive matter. over a period of four months.

2. Violation of the principle of higher of lower duties upon him, so as correspondence between duties and to free himself of them; he cannot grade request the revaluation of the post: The applicant states that he performs — Boursin v Commission (Case 102/63, duties which appertain to Category A. [1964] ECR 691) Since his classification does not conform — Prelle v Commission (cited above) to his duties, it is contrary to the principle of correspondence between — Tontodonati v Commission (Case duties and grade. The applicant's right 28/72, [1973] ECR 779) to reclassification accords with the Apart from exceptional cases relating to principles relating to classification the integration of officials in the system enshrined in the Staff Regulations. The of grades, which was carried out in ratio legis of those principles has been 1962, there has been no instance of an indicated by the Court in its judgment in official's benefiting from an appointment Prelle v Commission (Case 77/70, Rec. involving reclassification in the next 1971, p. 561). In the applicant's opinion, higher grade which has not itself been where reclassification is due, there is no the result of promotion by selection or question of promotion. Reclassification of success in a competition, as laid down is a right, promotion a favour. by Article 45 (2) of the Staff Regulations The principle of the right to in respect of appointment to a higher reclassification has been recognized by category. the Court in Mulders v Commission (Case 8/69 Rec. 1969, p. 561) 3. The claim for damages Advancement from one grade to another is no different from advancement from The applicant maintains that the present one category to another. This argument position, which has existed since is accepted by implication in Muller v 1 February 1970, is the result of a Commission (Joined Cases 109/63 and wrongful omission on the part of the 13/64, [1964] ECR 663). Commission, which has caused the Alternatively, if the Court were to applicant non-material damage; this consider that promotion for one could be compensated by the category to another could be effected rectification of his administrative only on the basis of a competition, the position. He has also suffered material Commission would have to follow the damage equivalent to the difference procedure which it itself instituted by between the amount of salary and publishing Vacancy Notice COM/ benefits paid to him in respect of Grade 534/73. B1 and the amount which he would have

since article 45 (2) does not lay down Having regard to the information given such a requirement. in Vacancy Notice COM/534/73, publication of this notice cannot be 3. The failure, although no longer regarded as the preliminary step in a pursuing that policy, to rectify the procedure which had necessarily to lead applicant's administrative position, to the organization of an individual even by organizing an individual competition: failure to organize such a competition, whereas it had adopted competition cannot therefore be and posted Vacancy Notice COM/ described as a wrongful interruption, in

wrongful act. Any error which the the Commission on 24 April 1969 on the Administration may have committed in grounds of failure to observe Articles reliance upon Article 45 (2) of the Staff 110, 45 and 29 of the Staff Regulations Regulations would at the very least be in that the decision was not brought to explicable. the attention of the staff, was taken without prior consultation with the Staff In this connexion the defendant Committee, was not submitted to the emphasizes that the rule adopted in 1969 Staff Regulations Committee and was and since maintained in force renders the not published in extenso.

The Court has of Article 42 of the Rules of Procedure. itself accepted the legality of open The Court must consider only the reserve competitions instituted by the submissions and arguments in the decision of 1969, in particular in the application. judgment in Campogrande and Others V A general decision of the Commission Commission (Joined Cases 112, 144 and dated 10 March 1971 provided that any 145/73, of 9 October 1974). decision relating to appointment to a When deciding whether or not to higher career bracket or category organize competitions, the appointing entailed the classification of the person authority exercises a discretionary concerned in the starting grade of the power; this means that the choice made said career bracket.

JUDGMENT OF 19. 3. 1975 — CASE 189/73

been classified in Grade B1, step 5, on 1 to maintain his former salary. Even if November 1971, had become entitled as there was a wrongful omission on the from 1971 to reclassification in Category part of the Commission by virtue of its A following success in a competition, he failure to organize a competition to would have been classified in Grade A7, make possible the applicant's promotion the starting grade. However, in Grade to Category A, that omission could not A7, steps 1 to 6, the salary is lower than have caused him material damage. that of step 4 in Grade B1 held by the applicant. A compensatory allowance The Advocate-General delivered his would have had to be paid to enable him opinion on 25 February 1975.

Law

1 By application lodged on 14 December 1973 the applicant brought before the Court an action for the annulment of the Commission's decision of 10 September 1973 rejecting his request of 4 October 1972 that he be reclassified in Grade A5.

2 He is further claiming that the defendant should be ordered to make good the damage which he suffered as a result of the Commission's negligent omission to take the measures necessary to effect such reclassification with effect from 1 February 1970.

3 In support of these two heads of claim the applicant maintains that under certain circumstances an official in a lower category may be entitled to direct appointment to the next higher category without a competition.

9 The action brought by the applicant must therefore be dismissed.

Costs

10 The applicant's action has failed.

11 In pursuance of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

12 However, in pursuance of Article 70 of the Rules of Procedure, in actions brought by officials of the Communities, institutions shall bear their own costs.

On those grounds,

Delivered in open court in Luxembourg on 19 March 1975.

A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 25 FEBRUARY 1975 1

Mr President, The Head of that department — at that Members of the Court, time Mr Van Westen — was an official in Grade A4. The Facts Several months later, in February 1970, Mr Van Westen was promoted to Head Mr Van Reenen was recruited by the of the Administration, Finance and Commission of Euratom on 1 March General Technical Services Division. As 1961 in Grade B2 and attained Grade B1 regards his previous duties he was not on 1 November 1963. replaced by a Category A official. In October of the following year, at the As a result, a proportion of those Petten Establishment, he was called previous duties were, as from that time, upon to perform the duties of Head of the Local Affairs Office. With effect undertaken by Mr Van Reenen, although with his consent. from 1 July 1969 he became Head of the Office of Internal Administration and Notwithstanding this fact Mr Van Staff Matters, under the Department for Reenen was not officially given a Personnel and Administration. temporary posting as replacement for his

1 — Translated from the French.