C-14/79

APPLICATION for a finding that the applicant occupies a post of Director in Grade A 2 and is therefore entitled to be graded in Grade A 2 with effect from 1 April 1974 or at least from 4 May 1978, and for the annulment of the implied decisions rejecting and dismissing the request and complaint made for this purpose,

THE COURT (Second Chamber)

composed of: A. Touffait, President of Chamber, P. Pescatore and Lord Mackenzie Stuart, Judges,

Advocate General: G. Reischl

Registrar: J. A. Pompe, Deputy Registrar

gives the following

I — Facts and procedure "appointment". Since nothing of the kind happened he made a request to the appointing authority on 12 May 1978 to be graded in Grade A 2 with effect from The applicant, who is a German 1 April 1974. He made a further national, a doctor of law and a application on 17 May 1979 for this languages graduate, entered the service grading to take effect at the latest as of the Council in Brussels on 1 February from 4 May 1978, the date of the entry 1958, the date when the EEC and EAEC into force of Council Regulation (EEC) institutions were set up, after working No 912/78 of 2 May 1978 amending the since 3 September 1956 for the Inter- Governmental Conference and the Staff Regulations of Officials of the European Communities and the Interim Committee responsible for the Conditions of Employment of Other working out and implementation of the Servants of the Communities (Official Treaties establishing the EEC and the EAEC. Journal L 119 of 3 May 1978 p. 1).

When he became integrated under the Staff Regulations and in accordance with Since the applicant did not receive any Article 102 (4) (b) thereof he was reply to this complaint, with the result appointed an official in Grade L/A 4 and that there was in law, pursuant to Article Head of a Translation Group at the 90 (2) of the Staff Regulations, deemed Council with effect from 1 January 1962. to be an implied decision rejecting the complaint, he filed this application which He was promoted to Grade L/A 3 with was lodged at the Court Registry on 25 the title of Head of a Translation January 1979. Division with effect from 1 January 1973.

Infringement ofArticle 5 and ofAnnex 4. Annul the defendant's refusal to grade I A to the Staff Regulations and breach the applicant in Grade A 2 with effect of the principle that the grade must from 1 April 1974 or at least from 4 correspond to the post May 1978 and the implied decisions rejecting his request and complaint The applicant maintains that the Council which were made for this purpose; was wrong to refuse to grade him in Grade A 2 since his duties correspond to the basic post of director and therefore 5. Order the defendant to pay the costs. to Grade A 2, seeing that he has been appointed to a post of head of a department of 300 persons of whom 250 The Council contends that the Court have university degrees and rank as should: Grade A and for whom he has

responsibility.

— Dismiss the applicant's applications as unfounded; The Council, by way of a preliminary and observation, first points out that for linguists in the service there are only posts in Grade L/A 8 to Grade L/A 3 — Order the applicant to pay the costs and that even Council Regulation (EEC) to the extent to which the defendant No 912/78 of 2 May 1978 (to which does not bear them pursuant to reference has already been made) has not Articles 70 and 95 (2) of the Rules of introduced a post of Grade L/A 2. Thus Procedure. there could not be a vacancy within the

LOEBISCH v COUNCIL

meaning of Article 4 of the Staff Regu- enable officials in the service who have

lations since there is not a basic post of been on the administrative side to

must be indicated for budgetary purposes; it is therefore the budgetary Although the applicant agrees with the authority alone which can either create a Council's argument concerning an new post or convert an existing post into institution's internal organization, he one of a higher category and it has not done this as far as the duties of Head of goes on to say that the appointing authority must nevertheless respect the the Translation Department are rights which employees have under their concerned. Staff Regulations in accordance with the case-law of the court (Case 61/70, Gian- The Council, relying on the case-law of franco Vistosi already quoted; Case the Court (Case 61/70, Gianfranco 66/75, Hébrant (née Macevicius) v Vistosi v Commission of the European European Parliament [1976] ECR 593; Communities [1971] ECR 535; Case Case 16/67, Henri Labeyrie v 61/76, Jean Jacques Charles Geist v Commission ofthe European Communities Commission ofthe European Communities [1968] ECR 293; Case 48/70, Giorgio [1976] ECR 1349; Case 21/68, André Bemardi v European Parliament [1971] Huybrechts v Commission ofthe European ECR 175, Case 35/72, Walter Kley v Communities [1969] ECR 85; Case Commission of the European Communities 33/67, Dietrich Kurrer v Council of the [1973] ECR 679), and accordingly the European Communities [1968] ECR 127) Council's argument is "irrelevant", since according to which the appointing the latter, by appointing a Head of authority is alone responsible for its Translation Department, decided to internal organization, refutes the create the post and that post is a post of applicant's arguments and maintains that director, because, in the first place, the consequently only the appointing head of department has supervisory authority may decide "whether it is powers over six heads of division and the expedient that the Translation head of a division is logically under the Department be directed by a Grade A 2 orders of a director; in the second place official". this head of department is the official who makes the first periodic reports on The applicant points out first that as a the six heads of division; in the third result of Mr Noack's departure there place the decision of the Councils of 7 was a vacant post within the meaning of October 1963 — describing the duties Article 4 of the Staff Regulations and and powers of officials of the General that Article 6 of the Staff Regulations Secretariat of the Councils of the cannot be invoked since, on the one European Communities — defines the hand, it is not a question of either post of director as follows: "He directs a creating or converting a post but a large administrative unit under the direct matter of acknowledging that the post authority of a Director-General or, which is occupied corresponds to Grade exceptionally, of the Institution" and the A 2 and, on the other hand, practical Translation Department, which consists difficulties cannot be pleaded in order to state what the law is. of 300 persons, is a large administrative unit.

also asserts that a promotion was in fact The Council refutes the applicant's involved, since he was appointed on 1 argument designed to prove that the post April 1974 on the recommendation of which he occupies is that of director in the Promotion Committee and Grade A 2, by maintaining that the promotion implies being appointed to the applicant is confusing, on the one hand, next higher grade pursuant to Article 45 appointment to a grade with assignment (1) of the Staff Regulations. It is true to a post and, on the other hand, being that according to Article 45 (2) of the placed at the disposal of a department. In Staff Regulations a transfer from one this case he was placed at the disposal of "service" to another — in this case a department so there has never been any moving from L/A 3 to A 2 — can take appointment to a post of Head of place only on the basis of a competition, Translation Department which the but Article 29 (2) of the Staff Regu- applicant seems to acknowledge in his lations provides that for the recruitment request — according to the Council's to Grade A 1 or A 2 "a procedure other argument — since it was drawn up by than the competition procedure may be him as follows: "... I request you to adopted by the appointing authority", apply for and authorize the conversion and the applicant asserts that the of the L/A 3 post, at present occupied by exception has become the rule in the case the undersigned, into an A 2 post"; it is of the appointment of the Head of the words "conversion of the L/A 3 post, Translation Department to Grade A 2 in at present occupied" which constitute the other European Institutions. And on this acknowledgment. the other hand promotion implies that the applicant may not refuse his new posting. The Council's final argument is that "Head of Translation Department" is not a post within the meaning of the Finally the applicant takes the view that Staff Regulations and that there has not "this being so it does not matter much therefore been an infringement of either that the career bracket of Head of Article 5 or Annex I A to the Staff Regu- lations. Translation Department does not exist as such in the list of career brackets for

the first place that the applicant — The Council also considers that, since having been a member of the Promotion the applicant is the most senior official in Committee — could very easily have his grade, he is in a position to exercise refused his appointment, especially as it authority, all the more so because the six was a question of choosing between him heads of division who are responsible for and Mr Van Royen; and in the second each language section facilitate his task. place that the duties of the Head of On the question of the applicant's being Translation Department have always subordinate to another official, the been performed by an official in Grade Council submits that, in addition to the L/A 3, except during the short period fact that he has always been under the when Mr Noack had been graded A 2 ad authority of a director since his personam; and finally that the Court held appointment, it is the "appointing in Case 176/73, Claudette Van Belle authority in the exercise of its organi- Council of the European Communities zational powers which has made this [1974] ECR 1361 that Article 29 of the decision", and that "such subordination Staff Regulations must be strictly cannot be regarded as having an adverse interpreted and that there is no right to effect on his career or authority". promotion.

The applicant disputes point by point the arguments put forward by the Council Second part by submitting:

JUDGMENT OF 13. 12. 1979 — CASE 14/79

heads of division but he directs them, senior official in the grade" is a principle since from the organizational point of which is well known in public and view they are answerable to him: their administrative law and it points out that post is not on the same level as his. Thus there is no right to promotion. the applicant has the power to make periodic reports on the six heads of division whereas in the Giuseppe Scuppa As far as the third and fourth points are case the head of division who had concerned, whilst the Council does not supervisory authority did not have the deny that the Giuseppe Scuppa case is power to make periodic reports on Mr different from the case in point, it Scuppa who was also head of a division. submits that the Klaer judgment cannot The applicant invokes in support of this be relied on either since, in that case, the submission the judgment of the Court of ECSC had never denied that Mr Klaer

15 December 1965 in Case 15/65, was in Grade A 1 ; the latter rightly Werner Klaer High Authority of the claimed that he was entitled to perform ECSC [1965] ECR 1045. duties which corresponded to his grade. The Council concludes this argument In the fourth place the argument to the by submitting that "the Translation effect that the applicant's duties are fa- Department is in fact answerable to cilitated by the work done by the six the Director of Operations/Translation. heads of division is "irrelevant" because Consequently the posts within the all the members of a directorate belong Language Department are subordinate to to divisions and are nevertheless under the post of director responsible for the the authority of the director. Translation Department".

Reynier and Piero Erba Commission of the top end of the career brackets of the the European Economic Community Translation Department". [1964] ECR 259.

The Council's reply to the first two of In conclusion the Council states that

the points raised by the applicant is that "the Council has a Director of Direc-

"the exercise of authority by the most torate-General II for Operations/

LOEBISCH COUNCIL

Translation who has been duly appointed is a matter of law it is not within the

principles of equal treadment betwen entire responsibility for them. officials and ofequity The Council, repeating once again that This submission is also divided into two the applicant was not appointed to a post parts. of director but to a post in Grade L/A 3 in 1973 and that he does not perform the duties of a director since they are First part performed by the Director for Operations/Translation, submits that the applicant's duties are to co-ordinate Infringement ofArticle 5 (3) ofthe Staff activities and it relies on the arguments Regulations already put forward in the first submission and on the biennial report on The applicant calls attention to his duties the applicant (1 November 1975 to 31 and powers and maintains that they have October 1977), which establishes that the not had any corresponding career latter performs the duties of a co- bracket since he has remained in Grade ordinator under the authority of the L/A 3. Director of Directorate II.

(General Matters) Division whose grade Head of Translation Department has to is L/A 3 and who co-ordinates the work fill a Grade A 2 post because, in the of the six translation divisions, each of report of the Working Party on the Staff which is under the direction of a head of Regulations to the Permanent Represen- division whose grade is also L/A 3. tatives' Committee on the amendments

which were to be effected by Regulation (EEC) No 912/78 (Council document R 269/77 (STAT 9) (FIN 59) of 9 Furthermore the appointment of Mr February 1977 annexed to the Noack to Grade A 2 in a personal application) the reason given for not capacity does not entitle the applicant to creating a Grade L/A 2 was that it was the same appointment and, in fact, the necessary to afford the administrators applicant is only applying for promotion. the opportunity of assuming the There is no right to promotion as the direction of such a department. case-law of the Court (Case 189/73, Gijsbertus Van Reenen Commission of the European Communities [1975] ECR 445; Case 25/77, Lucienne De Roubaix, Finally the applicant asserts that "the née De Leye Commission of the considerations put forward by the European Communities [1978] ECR Council in connexion with the absence 1081; Case 5/70, Maurice Prelle of any right to promotion are beside the Commission ofthe European Communities point", because he has not applied for [1970] ECR 1075; Case 77/70, Maurice promotion but for "the regularization of Prelle Commission of the European his grading on the basis of the law". Communities [1971] ECR 561) "shows Furthermore this case differs from the

internal organization.

Consequently the applicant does not With reference to the position of the perform the duties of a director and is heads of translation departments of the not entitled to be appointed to Grade other institutions it stresses in the first A 2. place that the Head of Translation Department of the Court of Justice is graded in Grade A 2 ad personam and that the duties of a head of translation

department, head of interpretation department and head of languages IV — Oral procedure department are not identical: hence the only valid comparisons are those with the other heads of translation departments. At the sitting on 20 September 1979 the representatives of the parties developed orally the submissions in their pleadings It also repeats its reasoning, put forward and answered questions put by the in the second part of its first submission, Court. concerning the interpretation of the modifications effected by Regulation No 912/78. The applicant stated his case in which he endeavoured to show in turn that his

2 The applicant entered the service of the Council of Ministers as a translator on 1 February 1958. On 25 May 1973 he was promoted to Grade L/A 3 and appointed "Head of the Translation Division". The Translation Department of the Council consists of six separate divisions, one for each of the six official languages of the Communities, and each under the authority of a head of division. The six heads of division are under the authority of the "Head of the Translation Department" who himself is under the authority of the Director of Directorate II "Operations — Translation Department", the latter being responsible to Directorate-General A of the General Secretariat.

Mr Noack, who had been promoted from Grade L/A 3 to Grade A 2 ad personam, filled the post of Head of the Translation Department until he retired on 13 January 1974. The applicant received the following note from the General Secretariat of the Council on 30 April 1974:

"Note for the attention of Mr Loebisch. I beg to inform you that as from 1 April 1974 you are placed at the disposal of Directorate-General A, Direc- torate II : Operations — Translation Department, as Head of the Translation Department".

The applicant, relying on the argument that his predecessor was appointed to Grade A 2, on two occasions has applied to the appointing authority to be graded in Grade A 2, with effect either from 1 April 1974 or at least from 4 May 1978, the date when the amended Staff Regulations of Officials of the European Communities entered into force. He has brought proceedings against the implied decision of the appointing authority rejecting his successive requests and has asked the Court, exercising its unlimited jurisdiction, to declare that his post is that of a director and to order the appointing authority to grade him in the grade which corresponds to the post so defined, that is to say in Grade A 2.

7 In this connexion the applicant refers to the fact that the Translation Department of the Council is a large administrative unit which contains about 250 graduates. The answer to this argument must be that it is impossible to find in the Staff Regulations anything to support the argument that the grade to which an official is appointed depends upon the number and status of his subordinates.

8 The applicant also relies on the fact that he is the immediate superior of the other heads of translation divisions. This argument scarcely applies to the

JUDGMENT OF 13. 12. 1979 — CASE 14/79

administrative co-ordination of the work of the department; this duty is not in fact of such a kind as automatically to eliminate the subordinate status of the officials whose activities are subject to such co-ordination, which it is perfectly normal to entrust to an official of the same grade.

9 The applicant also relies on the supervisory powers which he exercises over his colleagues by making periodic reports on them. Although it is true that the reporting officer is usually in a higher grade than the officials whose ability, efficiency and conduct in the service he has to assess, there is no provision of the Staff Regulations against such a practice; and there is no logical reason why it should not be feasible to entrust a senior experienced official with the duty of making periodic reports on officials having the same grade as his own. It is therefore unnecessary for a director to be the first reporting officer for heads of translation divisions.

10 The applicant has drawn attention to the fact that the post at issue in this case was previously filled by an official in Grade A 2, which corresponds to the duties of a director. It is necessary to stress in this connexion that Mr Noack, the former Head of the Translation Department, had been appointed to Grade A 2 ad personam; it may be inferred from this a contrario that the post itself is not in fact classified as Grade A 2 post, since the applicant's predecessor was only appointed to this grade owing to a discretionary promotion having regard to his personal merits and probably to the fact that he was at the end of his career.

14 Pursuant to Articles 69 and 70 of the Rules of Procedure the parties must bear their own costs.

On those grounds,

THE COURT (Second Chamber)

hereby

1. Dismisses the application as unfounded;

2. Orders the parties to pay their own costs.