C-25/77

JUDGMENT OF THE COURT (FIRST CHAMBER) OF 11 MAY 1978 1

Lucienne De Roubaix, nee De Leye v Commission of the European Communities

"Official — promotion"

Case 25/77

1. Officials — Recruitment — Vacancy notice — Access to the post — Conditions — Officials eligible for transfer or promotion — Candidature excluded — Act adversely affecting an official (Staff Regulations of Officials, Art 29 (1) (a))

2. Officials — Duties corresponding to a higher grade — Acceptance — Reclassification — Right — Absence (StaffRegulations of Officials, Art. 7)

Allo, a member of the Legal Department of the Commission, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for the annulment of Vacancy Notice No COM/267/76 relating to a post in Grade B 1 assigned to the Delegation of the Commission in Washington (Euratom Supply Agency), of the decisions not to accept the applicant's application for that post and to appoint Mr M to it, and of the implied decision rejecting the applicant's complaint lodged on 2 August 1976,

THE COURT (First Chamber)

composed of: G. Bosco, President, J. Mertens de Wilmars and A. O'Keeffe, Judges,

Advocate General: J.-P. Warner Registrar: A. Van Houtte

Clerk of the Agency. She is responsible duties falling within the ambit of the for documentation, for the supervision safeguards system and the Supply of the archives and the post, for the Agency. He was promoted to Grade B 2 administration of the budget and for the on 1 January 1971. financial transactions arising out of The applicant, who had applied for the administration of the Agency's capital. post in question, was advised on 6 July In addition, she is responsible for the 1976 that her application had not been invoicing relating to the commercial successful. As there was no response to activities of the Agency." her complaint within the meaning of During the preparation of the Article 90 (2) of the Staff Regulations, Commission's preliminary draft budget which was registered on 2 August 1976, for 1975 the Agency repeated its request she lodged the present application on 18 for the creation of two posts in Grade February 1977. It was received by the B 1, one of which was to be assigned to Court Registry on 22 February 1977. Brussels and the other to Washington (the Agency also wished to return the The written procedure followed the normal course. Grade B 2 post in Washington to the Directorate General for Energy, which Upon hearing the report of the Judge- wished to assign it to its office in Luxem­ Rapporteur and the views of the bourg). In the light of the guide-lines Advocate General, the Court (First laid down by the Commission on the Chamber) decided to open the oral basis of its concern for budgetary procedure without holding any austerity the Agency confined itself, preparatory inquiry. when the preliminary draft budget for 1976 was being prepared, to a request for the creation of a single post in II — Conclusions of the parties Grade B 1. The new post sought, which was to be obtained on 18 December The applicant claims that the Court 1975, expressly concerned the should: Delegation of the Commission in Washington. Since then the Agency has — Annul Vacancy Notice No COM/ again asked for a Grade B1 post to be 267/76 concerning a post in Grade created for Brussels. B 1 at the Euratom Supply Agency assigned to Washington; Vacancy Notice No COM/267/76 therefore related to a post in Grade B 1 — Annul the decisions not to accept at the Euratom Supply Agency, with the applicant's application for that assignment to Washington. The post and to appoint Mr M to it; qualifications required were primarily: — Annul the implied decision rejecting — A thorough knowledge of the the applicant's complaint registered nuclear fuel industry; on 2 August 1976 under No 4482; — Wide business experience if possible; — Order the defendant to pay the — Wide experience relevant to the costs.

III — Submissions and argu­ The Commission replies that the mere ments of the parties amendment by the applicant of the wording of one of the heads of her Admissibility conclusions does not affect the question of its admissibility. The existence of an The Commission observes that a vacancy notice cannot constitute an act capable action brought by the applicant on the of adversely affecting an official, since it basis of the decision not to accept her is merely in the nature of a measure application — a point on which the publishing an earlier decision and of a defendant has not put forward any measure preparatory to the decision to objections as regards admissibility — fill the post. At the very most the irregu­ confirms that the legal guarantees larity of the vacancy notice may be enjoyed by servants are in no way pleaded in support of an application for diminished by observance of the distinction which exists between the annulment of subsequent decisions. When it is considered that the measures of a purely structural nature application for annulment is in reality and those which affect them personally. directed against the decision to assign Substance the newly- created post to Washington, the inadmissibility of the application is The applicant maintains that the no less evident. The decisions relating to contested decisions constitute an the distribution of the available posts in infringement of Articles 45 (1) and 7 (1) the various administrative units fall of the Staff Regulations and a misuse of within the field of the Commission's powers. Mr M was in fact appointed to discretionary powers in the matter. The the post in dispute: fact that the contested decision concerns — Without a prior consideration of his the assignment of a single post ought comparative merits with those of the not to affect that principle. In fact, that decision is entirely distinguishable from applicant (the applicant's periodic the measures of an individual nature report for the period from 1 July affecting the position of one or other 1973 to 30 June 1975 was not drawn servant — appointments, promotions, up when that promotion procedure even transfers — which are capable of was carried out); adversely affecting the person — Without any account having been concerned. taken of the indispensable reclassi­ The applicant observes that as the head fication of the applicant or, at least, of the conclusions at issue criticizes the of the fact that she performed duties decision to assign the said post in Grade corresponding to a grade higher B 1 to Washington and to draw up the than her own (the applicant claims vacancy notice accordingly it follows that since 1959 she has performed de that the first ground of inadmissibility facto the duties of Head Clerk, that put forward by the defendant is is, those corresponding to the basic purposeless. post of Principal Administrative

Assistant, Grade B 1). In that regard constantly on the increase (they are she produces, in addition to her characterized in particular by the periodic reports, a letter from the importance of the relations to be main first Director General of the tained with American circles). There is, Agency, dated 1964, stating that in therefore, nothing incomprehensible in his opinion the rôle played by the the fact that in 1974 the Agency added applicant "appears to justify the a request for a Grade B1 post for highest grade in Category B and to Washington to that which it had already correspond to that of Principal submitted for Brussels and then in 1975, Administrative Assistant"). when compelled to reduce its demands as a result of the policy of budgetary Furthermore, Vacancy Notice No austerity, embarked upon by the COM/267/76 was not drawn up in the Commission, regarded the post last interests of the service but in order to applied for as of greater importance as permit the appointment of Mr M, which regards the interests of the service.

torate General XVII. that that report was on the whole The Commission observes that the slightly less eulogistic in its appraisals of applicant's arguments do not in any way her than the previous one had been. satisfy the conditions which must be The necessary consideration of fulfilled in order to demonstrate the comparative merits was in fact carried existence of a misuse of powers. Such a out. The applicant refers only to a misuse is to be evidenced by objective, number of factors which are, in her relevant and consistent factors showing eyes, such as to justify promotion to that the administration used its powers Grade B 1 but which are in no way for purposes other than those for which capable of demonstrating her specific they were conferred upon it (judgment qualifications for the post in question. of the Court of Justice of 5 May 1966 The differences of age and seniority in in Joined Cases 18 and 35/65, Gutmann the grade are not of decisive [1966] ECR 103). importance.

JUDGMENT OF 11. 5. 1978 — CASE 25/77

That is shown The applicant replies that when the by various internal memoranda which competent authority considered the preceded the grant of the post in comparative merits of the candidates it dispute by the Council or, at least, publ had the latest periodic report available ication of the vacancy notice. The for one of them but not for the other. applicant requests the production of Not only was the applicant's periodic those memoranda in the name of the report for the period from 1 July 1973 co-operation which must exist between to 30 June 1975 drawn up after the the parties in the production of comparative merits were considered but evidence. what is more it is dated 18 April 1977 The defendant replies that however and was drawn up, first, very near the regrettable the absence of the periodic end of the following report period (1 report for the period from 1 July 1973 July 1975 to 3 June 1977) and, to 30 June 1975 may be it cannot, for secondly, after the present application the purposes of the proceedings for

The of Article 45 of the Staff Regulations. content of her last report, which was drawn up after the adoption of the Contrary to the written statement of the decision at issue, must in any case be defendant, the applicant does possess regarded as immaterial as regards the the particular qualifications required for solution of the present dispute, since it the post in question. First, she has could not have been more favourable necessarily acquired a thorough than those available in June 1976, all of knowledge of the nuclear fuel industry. which bore the comment "better than After all, if the official appointed has average". The applicant cannot, acquired a thorough knowledge of that therefore, validly claim that the absence industry in the course of six years spent of her last periodic report can have at Washington, how would the reduced her chances of promotion.

DE ROUBAIX v COMMISSION

The defendant adds that in practice the of the European Communities, rep­ fact that the Agency is so small (16 resented by D. Sorasio-Allo, a member officials in all) reduces the importance of the Legal Department, acting as of the staff reports and that the Agent, delivered oral argument at the applicant's merits were for that reason hearing on 27 October 1977. well known. The applicant, represented by E. Lebrun The Advocate General delivered his of the Brussels Bar, and the Commission opinion at the hearing on 13 April 1978.

Decision

1 The application, which was lodged on 18 February 1977, seeks the annulment of Vacancy Notice No COM/267/76 relating to a post in Grade B 1 assigned to the Delegation of the Commission in Washington (Euratom Supply Agency), of the decisions not to accept the applicant's application for that post and to appoint another candidate to it, and of the implied decision rejecting the applicant's complaint lodged on 2 August 1976.

2 During the preparation of the preliminary draft budget for 1975 the Agency had repeated its earlier request for the creation of two posts in Grade B 1, one of which was to be assigned to Brussels and the other to Washington.

3 However, during the preparation of the preliminary draft budget for 1976 the Agency confined itself for budgetary reasons to a request for the creation of a single post in Grade B 1, to be assigned to the Delegation of the Commission in Washington.

6 The defendant objects that the application is inadmissible on the ground that the vacancy notice at issue does not constitute an act adversely affecting an official within the meaning of Article 91 (1) of the Staff Regu­ lations.

7 In fixing the conditions governing access to the post the vacancy notice, drawn up within the context of Article 29 (1) (a) of the Staff Regulations, determines the officials whose candidature may be accepted.

8 In so far as the effect of those conditions is to rule out the candidature of officials who are eligible for transfer or promotion, the vacancy notice constitutes an act adversely affecting such officials.

9 The objection of inadmissibility must therefore be dismissed as regards that point.

10 The Commission also submits that in reality the application for annulment is directed not against the vacancy notice itself but against the decision to assign the newly-created post to Washington.

11 It maintains that decisions relating to the distribution of the available posts in the various administrative units fall within the field of its discretionary powers in the matter.

15 The applicant adds that the fact that for many years she had perfomed de facto duties (of Head Clerk) corresponding to a grade higher than her own was not taken into account.

16 She further states that the vacancy notice at issue was drawn up not in the interests of the service but in order to permit the appointment of the other candidate, which was already agreed beforehand.

17 Although, under Article 7 (1), an official cannnot be compelled to perform duties corresponding to a grade higher than his own, except on a temporary posting, the fact that he agrees to perform them may be a factor to be borne in mind in connexion with promotion, but does not give him the right to be reclassified.

18 Although it is true that on several occasions the Director General of the Agency requested the creation of two posts in Grade B 1, one to be assigned to Washington and the other to Brussels, justified budgetary considerations led him subsequently to submit only a single application concerning the post for Washington.

19 By deciding to give priority in that way to the post to be created in Washington, the Agency thereby acknowledged that the duties appertaining to that post involved additional responsibilities, in particular having regard to the importance of the relations to be maintained with the United States circles concerned.

20 The applicant's age and seniority in the grade and post, even though superior to the successful candidate's, must not prevail over the nature of the duties to be carried out.

25 The applicant has failed in her submissions.

26 However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions must bear their own costs.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application;