C-148/79

JUDGMENT OF 26. 2. 1981 — CASE 148/79

In Case 148/79

"WALTER KORTER, an official of the Council of the European Communities, residing in Brussels, represented by Hans-Georg Hornung, an Advocate in Trier, with an address for service in Luxembourg at the Chambers of Pierre- Paul Schleimer, 78 Grand'Rue, applicant, v

COUNCIL OF THE EUROPEAN COMMUNITIES, represented by Pierre L. Prüm, of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Maître Prüm, 22 Côte d'Eich, defendant,

APPLICATION for an order compelling the Council to take a decision susceptible to legal action on the applicant's request for a change of posting,

T H E COURT (Second Chamber)

KORTER v COUNCIL

Note No 189/78 informing its officials regarded as an administrative act that a post for an Administrator in Grade adversely affecting him. That description A 7/A 6 was temporarily vacant for one seemed questionable to him: the act in year in Directorate-General E. Direc- question contained no reference to the torate III (accession negotiations). appointing authority; the power to sign is valid only if it derives from the express and personal delegation of the Secretary- General, which was not the case here. Officials interested in that post who thought that they possessed the qualifications required were invited to submit their application for a transfer to In reply to his note of 23 February 1979 the Personnel Branch no later than Mr Korter was informed on 19 March 29 September 1978. Officials already 1979 that no application for transfer had holding a post in Grade A 7/A 6 were been taken into consideration by the eligible to apply. person responsible in the department in question and that the head of the Personnel Branch was empowered to sign communications which, like that of 6 February, are purely informative in The Staff Note stated that it was not nature. necessary to complete an application form; a note accompanied by a brief curriculum vitae was sufficient.

By a note of the same day Mr Korter asked the administration when the Referring to that Staff Note, Walter appointing authority intended to take a Korter, an Administrator with the decision on his application of 27 General Secretariat of the Council since September 1978 for a transfer, bearing in 1 October 1973, requested a transfer by mind the time-limit laid down in Article a note dated 27 September 1978. 90 (1) and (2) of the Staff Regulations.

On 26 April 1979 Mr Korter submitted a Thereafter the written procedure complaint under Article 90 of the Staff followed the normal course. Regulations to the Secretary-General of the Council asking him as the appointing Upon hearing the report of the Judge- authority to accede to his application of Rapporteur and the views of the 27 September 1978 for a transfer or at Advocate General, the Court (Second least adopt a decision in the proper form. Chamber) decided to open the oral procedure without any preparatory By a letter of 27 June 1979 the inquiry. However, it invited the Council Secretary-General of the Council to notify it in writing of the outcome of informed Mr Korter that his request did the staff note of 11 August 1978 and the not constitute a complaint within the reasons why it did not in the end accept meaning of Article 90 of the Staff Regu- any of the applications submitted to it lations, as the requirements of that pursuant to that note; at the same time provision were not fulfilled: the the applicant was requested to state in appointing authority had not taken any writing the purpose of the decision that decision concerning him; it could not, he seeks by means of the action and his under a procedure which was not laid interest in that decision. Both parties down by the Staff Regulations and which complied with those requests within the clearly specified the authority period allowed. empowered to make the choice, adopt a measure provided for by the Staff Regu- lations. The note of 6 February 1979, which was purely for information and I l l — C o n c l u s i o n s of the p a r t i e s was not a decision within the meaning of Article 7 of the Staff Regulations, was signed by the competent official. The applicant claims that the Court should:

IV — Submissions and arguments was irregular and for an order requiring of the parties during the the appointing authority to adopt written procedure another such measure must be dismissed as vexatious if such a measure cannot benefit the applicant. A — Admissibility If, on the other hand, the letter of The Council considers the application to 6 February 1979 was only informative in be inadmissible for several reasons. nature, it was signed in the proper form. A "decision" by the appointing authority would therefore have no purpose. (a) Lack of object All the application seeks is an order The negative attitude expressed by the compelling the appointing authority to Secretary-General of the Council on take a decision which may be challenged 27 June 1979 cannot be regarded as an by legal action. The best that the act adversely affecting the applicant; his applicant can obtain is a decision application for a transfer had already repeating in another form the answer been the subject of a decision of the already given to his complaint, which administration on 6 February 1979. would be pointless. A member of staff is not entitled to demand in the abstract the application of provisions of the Staff The letter from the Secretary-General Regulations without asserting that they cannot be viewed as an express rejection affect his personal rights. of the application for a transfer: it simply confirmed that the note of 6 February 1979 had been signed by the competent official and was merely intended to regu- (c) Failure to comply with provisions of larize the situation from the the Staff Regulations administrative point of view. Although described by the applicant as "a complaint pursuant to Article 90 of Nor can the Secretary-General's letter be the Staff Regulations", the applicant's viewed as coming under Article 90 (2) of request of 26 April 1979 can be no more the Staff Regulations on the ground that than one of those requests which an the appointing authority "failed to adopt official may make at any moment to the a measure prescribed by the Staff Regu- appointing authority. It cannot constitute lations": a decision has been taken and the application represents an attempt to a complaint within the meaning of secure a second decision on the same Article 90. Neither of the two conditions matter. required by the Staff Regulations is fulfilled; there was no decision adversely affecting the applicant taken by the appointing authority nor any failure by (b) Lack of an interest to sue that authority to adopt a measure pre- scribed by the Staff Regulations. If, as the applicant alleges, the note of 6 February 1979 constituted an act adversely affecting him, he could have (d) Absence of ground for complaint brought an action against that act. However, according to the case-law of Neither the note of 6 February 1979, the Court of Justice, a claim for a which was purely informative in nature, declaration that an administrative act nor the letter from the Secretary-General

(a) Object of the action (b) Interest to sue The express refusal by the Secretary- General of the Council to take a decision The refusal, at first implied and then should be interpreted either as a failure express following the complaint made by to adopt a measure required by the Staff the applicant, to take a decision on his Regulations or as an express rejection of request for a transfer is, in the the applicant's request for a transfer. The applicant's view, an act adversely applicant has not challenged the decision affecting him in so far as his legal taken by the Secretary-General in regard position has been affected by it. to his complaint; but he does challenge the express refusal to take a decision as The applicant has an interest in obtaining to his transfer. legal protection in this case. Contrary to what the Council states, he can obtain something other than a "repetition in The Council's argument to the effect another form of the answer to his that the applicant's request for a transfer complaint": the Council itself admits that had already been the subject of a the Secretary-General's answer to the decision contained in the complaint should in any event be in a administration's note of 6 February 1979 different form and the question whether is not borne out by the documents the answer can only be unfavourable contained in the papers placed before the remains open because, as the Secretary- Court and cannot be accepted: first, only General has not intervened in the the Secretary-General is empowered to proceedings, the only authority capable decide on applications for transfer from of having an overall perspective of the officials in Category A; secondly, if the interests of the service has not yet letter of 6 February 1979 was purely exercised his power of appraisal. informatory as the Council claims, it cannot constitute a decision within the meaning of Article 7 of the Staff Regu- The applicant has an undeniable interest lations but only an informatory note not in receiving the independent legal having any legal effect. protection afforded by the proper

application by the appointing authority B — Substance of the provisions of the Staff Regulations and, more specifically, in an examination of his application for a transfer solely in (a) Infringement of Article 7 of the Staff regard to the interests of the service and Regulations without regard to nationality (Article 7 of the Staff Regulations), in having a The applicant contends that the Council proper statement of the grounds on is not observing Article 7 of the Staff which the decision to reject his Regulations in this case. application was based (Article 25) and in the adoption of a decision on his Under the Council Decision of 14 May complaint (Article 90). It is important for 1962 determining the appointing his legal position that a decision be taken authority for the General Secretariat of the validity of which is susceptible to the Council (Official Journal, English judicial review.

A fresh complaint is out of the question. Staff Note No 189/78 of 11 August 1978 expressly concerned applications The interest of the applicant in having a for a change of posting (transfer); thus decision taken as to his transfer is not the appointing authority clearly intended affected by the fact that the appointing to consider the options available under authority has taken measures in relation Article 7 (1) of the Staff Regulations. It to third parties which entail a decision in subsequently refused, wrongly, to regard to him. exercise the power which that provision expressly confers upon it. The subjective interest of the applicant in taking legal action will also continue to Article 7 is none the less applicable in exist in the future: he is entitled to have this case. his future applications for a change of posting dealt with by the competent The Additional Negotiating Protocol authority by means of decisions adopted concluded on 5 April 1978 between the within the framework of and in Secretary-General of the Council and the compliance with Articles 7, 25 and 29 of trade unions provides under Part IV the Staff Regulations. The applicant (Mobility) that: cannot be expected to wait for ever for a transfer decision under Article 7 of the "Any post which becomes available, with Staff Regulations, which the Secretary- the exception of posts to be filled by General refuses to take, or for a measure transfer on health grounds and of the taken in regard to a third party which, posts referred to in point III. 5 of the owing to the Secretary-General's Annex to the Negotiating Protocol of 12 practice, would never become known to June 1975, shall be communicated to the him. staff in the form of a notification of

transfer, together with a description of Contrary to the opinion expressed in that the duties and an invitation to submit communication by the Secretary-General applications. it is plain from the case-law of the Court of Justice that Article 7 of the Staff The immediate superior shall be at Regulations is applicable to any change liberty to choose either from candidates of posting, whatever its nature. applying for transfers as a result of such notification or from other candidates. The view that Article 7 has not been This choice may be made only in amended but simply revoked is just as accordance with the criteria of the untenable; the result of that would be interests of the service." that a transfer could no longer take place That Protocol cannot constitute an at the General Secretariat of the Council amendment to the Staff Regulations; in pursuant to Article 7. particular, it does not involve any If, on the other hand, the Secretary-

It is not compatible with the or to amend them. The Council alone, as principle of the legal equality of officials the institution empowered to adopt regu- that only the candidate accepted by the lations, has the power to amend the Staff immediate superior should obtain a Regulations. decision capable of being challenged by legal action, whilst unsuccessful candi- It is therefore wrong to contend that dates, who are adversely affected by the since the implementation of the rejection of their applications, are left Additional Negotiating Protocol it no without any legal remedy. longer rests with the Secretary-General

completion of the several stages of that procedure the immediate superior did In the final analysis it rests with the not in the end accept any candidate does appointing authority to take a decision, not in any way alter the legal situation as favourable or not, on the application for regards the powers of the Secretary- a transfer. General. He should have notified the applicant by a reasoned decision that he The action is well-founded owing to the was not granting his application for a refusal of the Secretary-General to apply change of posting; however, by his Article 7 of the Staff Regulations, if only communication of 27 June 1979 he in a manner unfavourable to the expressly refused to do so. applicant.

The reference to Article 7 of the Staff In the present case the applicant was Regulations has no justification. That notified of a decision by the Secetary- provision governs the assignment of General which gave no indication of the officials to their posts by appointment or reasons on which it was based. Since it transfer; an official is given the oppor- was a negative decision, and thus an act tunity to apply for a transfer within the adversely affecting him, Article 25 of the institution to which he belongs but he Staff Regulations should have been must submit his application to the complied with. appointing authority. In this case the applicant did not make such an application; he simply notified the head The Council contends that no application of the Personnel Branch of his interest in was submitted to the appointing the post declared vacant by Staff Note authority and that no decision was taken No 189/78. It is apparent from the under the Staff Regulations which context in which the applicant's required immediate communication in application was submitted as well as from writing to the official concerned. its description and content that it was Consequently the conditions for the

JUDGMENT OF 26. 2. 1981 — CASE 148/79

The appointing authority must reply to a The Advocate General delivered his complaint designated as such in opinion at the sitting on 29 January accordance with the provisions of the 1981.

Decision

1 By application lodged at the Court Registry on 25 September 1979, Mr Korter, an administrator at the General Secretariat of the Council, brought an action to obtain a formal decision from the appointing authority on his application for a change of posting which he submitted on 27 September 1978 pursuant to a notice published by the administration.

KORTER v COUNCIL

2 From the file it appears — and these facts are not disputed — that on 11 August 1978 the General Secretariat of the Council published Staff Note No 189/78 with the heading "Application for a change of posting (transfer)". That notice informed officials of the General Secretariat of the Council that a post for an administrator in Grade A 7/A 6 was temporarily vacant for one year in Directorate-General E, Directorate III (accession negotiations). After describing the duties involved and the qualifications required the notice invited interested officials to submit an application for a change of posting to the administration in the person of the head of the Personnel Branch. Only officials already occupying a post in Grade A 7/A 6 were eligible to apply. The notice stated that there was no need to complete an application form; a note accompanied by a brief curriculum vitae was sufficient.

3 In response to that notice, on 27 September 1978, the applicant submitted to the head of the Personnel Branch an application for a change of posting. On 6 February 1979 that official sent him a note stating: "In reply to your request for a transfer to Directorate III of Directorate-General E, I regret to inform you that no application has been accepted."

7 As to the substance of the complaint, the Secretary-General confirmed the reply already given by the administration to the effect that the person in charge of the Personnel Branch, to whom the applicant had sent his application, was the person empowered to sign the letter of 6 February 1979 refusing that application.

8 In conclusion the Secretary-General observed that the note addressed by the Head of the Personnel Branch to the officials who had submitted applications under the procedure begun by Staff Note No 189/78 was simply an organizational measure, taken pursuant to the Protocol of 5 April 1978, and not a decision within the meaning of Article 7 of the Staff Regulations, which he claimed has no application in this case.

1 1 The Council's principal contention is that the action be dismissed as inadmissible. It submits that the procedure begun by Staff Note No 189/78 was merely an "administrative measure" adopted pursuant to the Protocol of 5 April 1978, in which paragraph (1) of Part IV (Mobility) provides that:

"Any post which becomes available, with the exception of posts to be filled by transfer on health grounds and of the posts referred to in point III.5 of the Annex to the Negotiating Protocol of 12 June 1975, shall be communicated to the staff in the form of a notification of transfer, together with a description of the duties and an invitation to submit applications.

The immediate superior shall be at liberty to choose either from candidates applying for transfers as a result of such notification or from other candi- dates. This choice may be made only in accordance with the criteria of the interests of the service."

12 The Council submits that when viewed in the light of that provision the communications sent to the applicant were purely for information and cannot be regarded as decisions for the purpose of Articles 7 or 25 of the Staff Regulations.

1 3 As far as the substance of the case is concerned, the Council claims that it lawfully exercised its discretion with regard to the applications which were submitted to it after publication of the notice and that it is clearly established

JUDGMENT OF 26. 2. 1981 — CASE 148/79

16 It seems from that notice as a whole that an official from the Secretariat was to be given the chance to prove his abilities in a special field of activity for a limited period and without any change of grading under the Staff Regu- lations. Hence, it is doubtful whether on an objective view the change of posting referred to in that notice corresponds to the concept of transfer within the meaning of Article 7 of the Staff Regulations, which envisages permanent postings which as such have a direct bearing on officials' career prospects. The notice out of which the dispute arose was ambiguous in this regard, in so far as it implied that there was a possibility of a "transfer", but started a procedure which was not in keeping with the requirements of the Staff Regulations as regards transfers properly so called. That uncertainty continued during the course of the successive complaints of the applicant

KORTER v COUNCIL

until the letter of 27 June 1979 in which the Secretary-General refused to regard the procedure begun by Staff Note No 189/78 as a procedure for a transfer properly so called, in spite of the words used.

17 It appears from the foregoing that the applicant's complaints had some just- ification in so far as he was protesting against the fact that the position of officials under the Staff Regulations may be affected by parallel procedures not covered by the safeguards in the Staff Regulations. However, at the same time it must be said that he has not been able to demonstrate the existence of an act adversely affecting him within the meaning of Article 90 of the Staff Regulations, even though after publication of the announcement in Staff Note No 189/78 the administration decided not to consider any of the applications submitted. As the Council has rightly pointed out, the applicant had no right to the post for which he applied. Since the administration has discontinued the procedure in issue, the applicant has no interest in seeking to obtain a formal decision in the context of that procedure.

T H E COURT (Second Chamber)

hereby:

1. Dismisses the action as inadmissible;

2. Orders the Council to pay the whole of the costs, including those of the applicant.

Pescatore Touffait Due

Delivered in open court in Luxembourg on 26 February 1981.