C-66/75

JUDGMENT OF THE COURT (SECOND CHAMBER) 20 MAY 1976 <apnote>1</apnote>

Margherita Macevicius v European Parliament

Case 66/75

Summary

Officials — Application — Subject-matter — Measure coming within the power of internal organization — Admissibility — Conditions (Staff Regulations of Officials, Articles 5, 7, 91)

A measure coming within the power of For such to be the case, it is not internal organization of an institution sufficient that the said measures should can be actionable under Article 91 of the bring about a change or even any Staff Regulations only if it adversely reduction in the responsibilities of the affected the rights which the person person concerned, but it is necessary concerned has under Articles 5 and 7 of that, taken together, his remaining those Regulations, especially by requiring responsibilities should fall clearly short him to carry out duties which do not of those corresponding to his grade and correspond to his post and grade. post, taking account of their character, their importance and their scope.

JUDGMENT OF 4. 5. 1976 -CASE 66/75

working party, as well as a declaration that the Parliament has committed a wrongful act in respect of the applicant by failing to give favourable consideration to the complaint made by her.

THE COURT (Second Chamber)

composed of: H. Kutscher, President of Chamber, P. Pescatore and M. Sørensen, Judges,

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

gives the following

library to Mr Reid, a servant in Grade administration and the management A 5, mentioning that of the library'; — it would hardly be of interest to the — stated that the work of re-organizing applicant to take up these duties, the library was 'hierarchically and since she had shown her opposition technically within my jurisdiction' to the reforms in question; and could not therefore be confided — suggested to the applicant that she to Mr Reid, who, a chemist by should, for a certain time, occupy profession, did not possess the herself with studies concerning the qualification of a librarian, who possibility of modernizing the library would be inferior in rank to the and putting its catalogue on a applicant and who had been in the computer; service of the Parliament for only and continued, inter alia, as follows: nine months, whereas the applicant's 'You mentioned during our dis­ length of service amounted to seven cussions the possibility that you years; should maintain your present duties — emphasized that, in these in supervising the analytical cata­ circumstances, it was unacceptable logue. However, I would if I may, that she should be subordinated to strongly recommend you against Mr Reid; pursuing this idea. I appreciate your — refused to devote herself to the

great experience in this field but, as I studies suggested by Mr Taylor. have said, responsibility for con­ trolling the re-organization of a 3. In a note of 7 December 1974

classification system will be that of distributed to the officials concerned and Mr Reid, under my authority. While I headed 'Proposed re-organization of the am sure Mr Reid will not seek to Library Classification System', Mr Taylor intervene more than is strictly made inter alia the following necessary in the day-to-day work of statements:

(c) to establish the immediate shelving decisions … however, just as your requirements and to explore the position as an A4 is unaffected by the long-term space problems, and creation of the Working Party, so also is (d) to lay down the modus operandi for the task you are allotted in the Library ensuring a smooth changeover.' … You are responsible directly to me for one part of the library's services, namely By a note of 21 November 1974 the overall control of the analytical addressed to Mr Taylor, the applicant catalogue, and Mr Reid is equally protested against the appointment of Mr responsible to me for another part, Reid to the duties of re-organizer, namely the reference and information claiming in particular that: services with certain other matters held — that decision amounted in tact to in common …" giving to Mr Reid 'the general management of the library', and had In a note to Mr Taylor of 15 December been adopted 'in disregard of the 1974, the applicant kept to her previous intangible rights attaching to the position.

independent and distinct parts of two In his note in reply of 25 November different departments of the library. 1974, Mr Taylor made, inter alia, the However, this is in no way the case; since following observations: the introduction of this re-organization, all the departments have been centralized '… I have not created any new post in by you in the hands and under the the Library … but have merely direction of Mr Reid, who has been nominated a Working Party … to make specifically appointed to direct them and recommendations for reforms which the to supervise them.'

with executive powers. It makes 5. On 31 July 1975, the applicant made recommendations to me on which I take the present application.

The applicant claims inter alia that the The disputed measures were later Court should: revoked on 31 July 1975, the date on which the application was made, since 'declare that the appointment of Mr Reid on 29 April 1975 Mr Taylor dissolved the to the twofold duties of re-organizer of Working Party, the latter having lodged the Parliament Library and as Chairman its re-organization proposals. of the re-organization working party injuriously affects the applicant, that it is Furthermore, these measures, since they illegal and must consequently be amount to general measures for the annulled; organization of departments, cannot be the subject of an application. declare that the Parliament is guilty of a wrongful omission in failing to give The applicant replies that on 29 April favourable consideration to the 1975 nothing happened from which it complaint of Mrs Hebrant …' was possible to deduce the revocation of the criticized measures. On the contrary, 'order the defendant to pay the entire on 24 April Mr Taylor in the presence of costs'. Mr Pöhle, Mr Reid and the applicant, 'stated very vaguely to Mr Reid that he In her reply, the applicant specifies 'the thanked him for his work of scope these conclusions' by stating that re-organization and that he need take it she protests also and even principally no further'. This remark certainly did not against her subordination to the orders of allow it to be concluded that the said Mr Reid and that further she disputes the measures had been revoked. But even note from Mr Taylor of 9 October 1974 supposing that there had been a formal in that it calls upon the applicant 'to take revocation — quod non — the a non-existent post in a non-existent application is admissible because on the computer department'. one hand an official is entitled to complain even against the temporary The European Parliament contends that infringement of his rights and, on the the application should be declared other hand, it suffices that the measures inadmissible, and in the alternative adversely affecting him existed at the unfounded, and that there should be an time when the administrative complaint order as to costs in accordance with the was made. provisions applicable. In its rejoinder, it states further, having regard to the The disputed measures are actionable as abovementioned matters specified in the adversely affecting the applicant's rights reply, 'that it is opposed to any alteration under the Staff Regulations, and

depriving her of her rank in the and corresponding career brackets, hierarchy and of duties corresponding to constituting Annex I to the Staff her grade and seniority. Regulations) to place an official under the orders of a colleague in a lower grade. The Parliament repeats in its previous That decision adversely affected the statements, adding that since the applicant's position under the Staff interview of 29 April 1975, Mr Taylor in Regulations and her professional dignity. addition to thanking Mr Reid and to declaring the Working Party to be The critized appointment cannot be dissolved, introduced Mr Pöhle as the justified on the ground that the applicant new director of the library. The was opposed to the introduction of the Parliament offers to prove these facts by new system of classification.

The only measure which contrary to the interest of the service. occurred in the matter, the measure The applicant is all the more justified in consequent upon Mr Taylor's note of disputing Mr Reid's appointment in that 7 November 1974, consisted in she can show that she has experience establishing the Working Party and acquired in the library work; during giving the chairmanship of it to Mr Reid, recent years, she pratically assumed the which did not constitute an whole responsibility for the departments 'appointment' within the meaning of the of the library. On the other hand, Mr

authority. Under Article 24 of the Staff Regulations, the Community institutions are required 2. On the substance of the case to assist officials against threats and illegal acts from their immediate The applicant, in her application, makes superiors. In the present case the letter of inter alia the following observations: 9 October 1974 contained a threat, Mr Taylor having stated to the applicant Mr Reid's nomination as re-organizer of that, if she refused the offer to devote the library gave him, by this very fact, the herself thenceforth to the work which he power to give instructions to all the suggested to her, she would have to be library staff, including the applicant. subordinate to Mr Reid. In failing to act

MACEVICIUS v PARLIAMENT

of Mr Taylor to appoint Mr Reid as organization which requires it to arrange Chairman of the Working Party and not the working of the service in accordance the applicant 'is founded on a with administrative requirements. Mr value-judgment'. Taylor intended to have collaborating on the decimal system only the officials who The Parliament in its defence, argues were ready to do so. inter alia as follows:

applicant contrary to her status. The real concern of the applicant was to obtain The applicant is justified in pleading the new responsibilities for which she infringement of Articles 5 and 7 of the regarded herself as the most qualified Staff Regulations, since, according to Mr person; however, she cannot claim a Taylor's note of 9 October 1974, she can right under the Staff Regulations to a no longer perform the duties of principal particular post; furthermore the disputed administrator. In fact, the duties which measures did not imply the creation of a he had suggested to her in that note (the new post. introduction of a computer system) do not exist; furthermore Mr Taylor could In a hierarchical organization, a final not have overlooked the fact that he had decision must ultimately be taken and no right to create a new post. On the executed loyally. The administration of other hand, it appears clearly from the the Parliament only used its power of note that should the applicant not accept

JUDGMENT OF 4. 5. 1976 — CASE 66/75

the said proposal and should she prefer alone took over the management, the to continue to work in the library, she administration and the technical would have to follow Mr Reid's direction of the whole of the library. Mr instructions. Since in fact she did not Balbiani carried on only supervisory agree to the proposal, she had therefore, activities from 1970 until 1 March 1974, according to the very words of Mr Taylor, the date on which Mr Taylor took over to subordinate herself to Mr Reid. responsibility for the library.

colleague classified as A 4. these points, stating inter alia, in a detailed manner, the reasons why Mr It cannot be stated that the measures Reid is also highly qualified in the taken by Mr Taylor concerning the library sphere. re-organization of the library were only of a temporary nature, when the The fact that the applicant has suffered problems created by such a re­ no reduction in her position as an official organization are the problems of a in Grade A 4 follows from the generation. Furthermore, the task job-description which the applicant entrusted to Mr Reid was never revoked, herself prepared on 23 March 1975 for either verbally or in writing. the attention of Mr Pöhle. Further, her duties were further widened and Since the beginning Mr Taylor was increased in importance in summer of resolved to introduce the decimal system. 1975, in that she was given the However a complete re-organization of responsibility for the budget for the the library proved to be impossible entire library, including the sphere immediately, so that Mr Taylor finally entrusted to Mr Reid, a task which decided to resort to a system of included the right to veto intended combining in a single catalogue the expenditure. analytical and decimal classifications. Such a mixed system is impracticable, as It would have been 'ridiculous' to entrust the applicant demonstrates in detail. the task of re-organizing a department to The applicant was the only official an official who had declared repeatedly qualified to put the decimal system into that she considered that re-organization to be nonsense. operation. The academic studies leading to qualification as a librarian also deal with this system. The applicant's statements concerning the duties which she undertook Since February 1971, when Mr Lemmer previously in the library of the was transferred elsewhere, the applicant Parliament are contradictory.

2 The applicant further seeks a declaration of an unlawful act on the part of the President of the Parliament in not giving favourable consideration to the complaint which the applicant made against the abovementioned measures under Article 90 of the Staff Regulations of Officials.

I — Admissibility

3 The defendant institution claims that the application is inadmissible for lack of interest and absence any adverse effect upon her, since the disputed measures ceased to produce their effects at a date prior to that on which the

JUDGMENT OF 4. 5. 1976 — CASE 66/75

application was made and furthermore amounted to measures of internal organization, which are not actionable.

4 As to the appointment of Mr Reid as Chairman of the Working Party, the applicant does not seriously dispute that this was dissolved on 24 or 29 April 1975 and admits that Mr Taylor, who at the time directed the library, told Mr Reid in the presence of several persons, including the applicant, that he thanked him for his work 'and he need take it no further'.

MACEVICIUS v PARLIAMENT

supervising the establishment of the analytical catalogue, which she actually did, it would be necessary for her to comply with Mr Reid's instructions.

10 Questioned by the Court on whether she had actually had to conform to the instructions of Mr Reid, the applicant replied, on the one hand, that Mr Reid had not 'formally ordered her to do anything' and that she could not complain that he 'had used a hierarchical power' or 'had forced her hand' and, on the other hand that there had been 'subordination through an intermediary', since Mr Taylor, and, later, the new director of the library regularly confirmed suggestions coming from Mr Reid, thus turning them into instructions addressed to the applicant.

11 She added that, in a note of 15 December 1975, Mr Reid, although admitting that the applicant is responsible for the library budget, put into circulation a document containing the following passage 'Mme Hebrant, in consultation with Mr Reid, should prepare the overall budget proposals by February of the following year'.

12 The fact that a hierarchical superior addresses instructions to an official in accordance with proposals coming from another official in no way signifies that the first official has been subordinated to the second.

13 Further, when an official is required to act in a particular sphere, 'in consultation' with a colleague, this means only that the persons concerned carry out their respective functions on the footing of equality, but not that the first official is placed under the orders of the second.

18 It is sufficient therefore to consider, in the light of the answers provided by the parties to the questions asked by the Court and of the documents put forward in their support, whether the applicant has established that her present responsibilities do not correspond to those of a principal administrator classified in the higher grade in the career bracket A 4/A 5.

19 It appears from the 'definition of the duties' of the library officials, laid down by the defendant institution in December 1975 and constituting, by its official nature, the essential fact for the purposes of the present examination, that the library at present consists of two divisions placed respectively under the responsibility of the applicant and of Mr Reid and each of which includes in addition an administrator and a principal administrative assistant, coming respectively within career brackets A 6/A 7 and B 1.

20 According to the wording of this document, the responsibilities of the applicant are laid down by the following key words: 'supervision of the central catalogue', 'supervision of the catalogue and processing of works in French and Italian', 'ordering new acquisitions', 'supervision of the library budget', 'management of administrative questions' and 'information to users'.

21 The situation which emerges from that description agrees with the statement appearing in the note of 25 November 1974 which was sent by Mr Taylor to the applicant and which reads inter alia: 'you are responsible directly to me for one part of the Library's services, namely the overall control of the analytical catalogue, and Mr Reid is equally responsible to me for another part, namely … This situation has not changed in any way …'.

27 In these circumstances, the applicant's conclusions directed towards the annulment of the appointment of Mr Reid as re-organizer of the library of the European Parliament must be dismissed.

28 2. According to the applicant, the President of the Parliament was wrong in rejecting the complaint which the applicant made against the contested measures.

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29 However, it follows from the foregoing considerations that the conclusions directed towards the annulment of these measures must be dismissed.

30 It follows that the disputed rejection cannot be regarded as illegal, so that, for that reason alone, the request for a declaration of an unlawful act or omission on the part of the President of the Parliament cannot be upheld.

Costs

1. The application is dismissed;

2. The parties shall bear their own costs.

Kutscher Pescatore Sørensen

Delivered in open court in Luxembourg on 20 May 1976.

A. Van Houtte H. Kutscher

Registrar President of the Second Chamber