C-782/79

In Case 782/79

MAURICE GEERAERD, an official on the language staff of the Commission of the European Communities, residing in Brussels, represented by Edmond Lebrun of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 Boulevard Grande-Duchesse Charlotte, applicant, v I — Language of the Case: French.

JUDGMENT OF 4. 12. 1980 — CASE 782/79

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Jörn Pipkom, a member of its Legal Department, acting as Agent, 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 the decisions promoting officials from Grade L / A 6 to Grade L/A 5 for the 1978 financial year and of the decision rejecting the complaint lodged against those decisions,

T H E C O U R T (Second Chamber)

composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges,

seniority in that step from 1 December Certain difficulties relating to the 1971. His duties are those of a translator implementation and the consequences of in the Translation, Documentation, those amendments to the Staff Regu- Reproduction and Library Directorate of lations, notably regarding promotion the Directorate-General for Personnel procedures, were examined on 30 and Administration. October 1978 at the 116th meeting of the Heads of Administration. On the basis of the work of the preparatory On 10 March 1978 there was published committee the following measures were in Administrative Notices No 191 the list put forward and approved on 21 of officials, in particular in Category December 1978 at the 118th meeting of L/A, including Mr Geeraerd, who were the Heads of Administration: paid from operational appropriations, who were eligible for promotion in 1978. On 31 December 1978 those officials As regards promotion procedures had the seniority required to be affecting language staff a distinction considered for promotion, in particular must be made between two kinds of within Career Bracket L/A 6 - L/A 5, to promotion. Grade L/A 5.

JUDGMENT OF 4. 12. 1980 — CASE 782/79

GEERAERD v COMMISSION

which was not published, of 21 officials L/A 5 for the 1978 financial year, considered to be the most deserving of which were published in promotion to Grade L/A 5 for the 1978 Administrative Notices No 225 of financial year. 15 February 1979; The appointing authority decided to — Annul the implied decision and the promote all the officials selected by the express decision notified by letter of Ad hoc Committee with retroactive effect 27 August 1979 rejecting the to 1 January 1978. The names of those applicant's complaint registered on officials were published in Administrative 26 March 1979; Notices No 225 of 15 February 1979. — Order the defendant to pay the costs. On 26 March 1979 Mr Geeraerd lodged a complaint under Article 90 (2) of the Staff Regulations against the decisions to The Commission contends that the Court promote officials to Grade L/A 5 should: published on 15 February 1979. — Declare the first submission in the More than four months after that application inadmissible and in any complaint had been lodged, and there- event unfounded ; for at a time when there was already an implied decision to reject the complaint, — Declare the second submission in the application unfounded; on 27 August 1980 the Commission sent to Mr Geeraerd an express, reasoned — Reject the application as a whole; decision rejecting his complaint. — Order the applicant to pay the costs.

II — W r i t t e n p r o c e d u r e IV — S u b m i s s i o n s a n d a r g u m e n t s On 22 October 1979 Mr Geeraerd of t h e p a r t i e s in t h e w r i t t e n lodged this application. procedure

lation. It therefore took promotion from inadmissibility raised by the Commission Grade L/A 6 to Grade L/A 5 as on grounds of his lack of interest in promotion within the career bracket taking proceedings. (former career brackets) not requiring publication of vacant posts to be filled through those promotions. The Commission regards this first submission as inadmissible and ill founded. Those promotions from Grade L/A 6 to Grade L/A 5, coming after the date on which the new table of basic posts and (a) The applicant has not proved either corresponding career brackets for that the alleged irregularities in the language staff laid down by Article 35 of promotion decisions were injurious to Regulation N o 912/78 came into force, him or impaired his legitimate interests must be regarded as promotion from one or that the procedure normally followed career bracket to another; consequently in the past to promote officials from one there should have been prior publication career bracket to another might have of the vacant posts to be filled. That been more to his advantage. omission constitutes a breach of the legal provisions in point; any other interpret- ation would disregard the principle of the immediate application of the regu- The lack of publication of a vacancy lation. In the case of promotions due to notice for the vacant posts in Grade L/A take effect on 1 January 1978 without 5 could not have been injurious to his question there should have been an legitimate interests. The purpose of a examination as to whether the necessary vacancy notice is to allow the appointing requirements were met on that date; on authority to examine as a first step the other hand the promotion procedures whether the vacant post cannot be filled taking place after 4 May 1978 should by means of transfer or promotion and have taken into account the amendments to enable officials eligible for promotion made by Regulation N o 912/78 to the or transfer to apply for the posts. As the table of posts and corresponding career applicant was one among 184 officials brackets and therefore, in the case of eligible for promotion from Grade L/A 6 promotion from L/A 6 to L/A 5, should to Grade L/A 5 the publication of a have taken the form of promotion pro- vacancy notice could not have given him cedures from one career bracket to any additional advantage. another. The procedures laid down by the Commission for promotion within career (b) The application of the procedure brackets afforded wider safeguards to laid down by the regulation was in no officials eligible for promotion, as sense detrimental to the interests of regards consideration of the comparative officials who, on 1 January 1978, had merits of each candidate eligible, than do the seniority required for such the procedures applying in the case of promotion: Regulation N o 912/78 does promotion from one career bracket to not lay down any new basic conditions. another.

(a) By not first publishing either the list The appointing authority was entitled to of officials regarded as the most take the promotion decisions in issue for deserving of promotion to Grade L/A 5 the financial year 1978 and to take for the financial year 1978 or the list of account of the fact that the officials officials put forward for such promotion concerned were eligible for promotion by its branches, the Commission ignored within the career bracket under that the legal provisions and practices financial year before the amendments to requiring immediate communication of the Staff Regulations came into force. those lists. Officials who on 1 January 1978 had the seniority required for promotion could have legitimately expected to compete in the procedures for promotion within a It is not possible to concur with the career bracket, especially as the list of arguments of the Commission which, officials eligible for such promotion had whilst admitting that there is a duty to been published. Promotions within a publish the lists and that such publication career bracket are moreover generally did not in fact take place, contends that announced by the appointing authority publication does not constitute an with retroactive effect to 1 January. essential requirement providing sufficient ground for the annulment of the decisions in issue if not effected. The requirements of form and procedure The sole purpose of the amendments to which are in fact regarded as essential the Staff Regulations was to give officials ones and which therefore entail the on the language staff, from the time annulment of any contested measure when they came into force, new oppor- disregarding them are those adopted in tunities for promotion in line with those the interest of the persons concerned or available to officials in Category A. in the general interest. The publication of the lists of the most meritorious officials and of the officials proposed for promotion is unquestionably an essential The second submission formality since it is clearly imposed in the interest of officials who are eligible for promotion. The single fact, which has been established during the The applicant also complains that the proceedings, that those lists have not contested promotion decisions infringe been published makes the promotion Articles 5 (3) and 45 (1) of the Staff decisions in issue null and void. Regulations and Anieles 2, 4, 5 and 7 of the Commission decision of 21 December 1970, as amended by the decision of 14 July 1971, laying down general implementing provisions for the (b) The fact that certain officials, not procedure to promote officials within including the applicant or a number of

(c) If the explanation for the lack of any publication of the list of the officials considered to be the most deserving of promotion to Grade L/A 5 is that no list or procedure to draw up such a list had (g) Contrary to the provisions of the been commenced, then there is a breach decision of 21 December 1970 by which of the other legal provisions referred to the consideration of the comparative in the submission. merits must be undertaken by the Promotion Committee, that examination was carried out in this case by an ad boc committee. That amounts to an additional procedural irregularity. (d) The applicant cannot be required to indicate the arguments capable of changing the tenor of the decisions in issue, which he could have advanced if The Commission believes that the publication had been effected. Such a requirement is tantamount to inviting the submission of procedural irregularity is Court to involve itself in questions of unfounded. opinion, which would be contrary to its established case-law. The crucial point is that the applicant was utterly unable to formulate the observations which he considered useful and that such obser- (a) The omission to publish the list of vations had no opportunity to influence officials considered to be the most the decision to be taken. deserving of promotion or the list of proposals submitted for that purpose by the branches is not sufficient ground to annul the decisions in issue. That pub- lication does not constitute an essential (e) The argument that even the requirement. In no sense does the application of the procedure advocated applicant prove that the decisions by the applicant would have led to the complained of might have been different same result cannot be accepted. The if publication had been effected or that case-law referred to by the Commission the irregularity involved was detrimental on this point relates to a specific case to the interests at stake. In the absence of and an exceptional situation which are such consequences, according to the not transposable to this case. case-law of the Court the irregularity is

The consideration of the comparative — Non-publication of the list of the merits of officials eligible for promotion officials considered to be the most by an "ad hoc committee" and not by the deserving of promotion cannot be Promotion Committee is certainly an detrimental to the applicant's interests. anomaly but is in no sense detrimental to That list is intended to limit the discret- the applicant: the composition of that ad ionary power of the appointing authority hoc committee and its working methods which can promote only officials on that are identical to those of the Promotion list; that power has been limited still Committee. more by the fact that the list published contains a number of officials equal only to the number of possible promotions. Therefore the list of officials considered to be the most meritorious is identical to (d) Even if the application were the list of officials promoted, which was considered admissible and well founded published. there would be no ground to annul the decisions complained of. Such annulment would cause damage to the other officials promoted which would be — Non-publication of the list of disproportionate to that suffered by the officials proposed by their branch for applicant. His rights may be safeguarded promotion is at variance with the by other more appropriate measures customary administrative practice which which it is not necessary to indicate at is not however applied strictly and this stage.

JUDGMENT OF 4. 12. 1980 — CASE 782/79

V — Oral procedure the Directorate-General for Personnel and Administration presented oral argument and replied to questions from The applicant, represented by Mr the Court at the hearing on 2 October Lebrun, and the Commission, 1980. represented by Mr Pipkorn, assisted by Giangaleazzo Cairoli, principal The Advocate General delivered his administrator in the Recruitment, opinion at the sitting on 30 October Appointments and Promotions Branch of 1980.

GEERAERD v COMMISSION

on the aforesaid date officials had the seniority required, whilst the promotion of officials to the new career bracket would be carried out in accordance with the provisions of the new rules. The Heads of Administration recommended that those rules be applied in the same way in all the institutions.

4 The Commission immediately took the necessary steps to put that recommendation into effect, before the end of the year in question. In the case of officials on the language staff eligible for promotion from Grade L/A 6 to Grade L/A 5 in the "former career bracket" the Commission formed an "ad hoc committee" composed in the same way as the Promotion Committee for the language staff. By a memorandum of 4 December 1978 the Director of the Translation, Documentation, Reproduction and Library Directorate, IX/D, submitted to that group a list together with a proposal to promote 21 officials selected from 184 candidates fulfilling the necessary requirements. The Ad hoc Committee unanimously agreed to recommend the promotion of the officials proposed.

s The appointing authority accepted that proposal and the officials concerned were consequently promoted with effect from 1 January 1978. That decision was published in Administrative Notices No 225 of the Commission of 15 February 1979.

6 On 26 March 1979 the applicant lodged a complaint with the Commission against those decisions pursuant to Article 90 (2) of the Staff Regulations. On 27 August 1979 the Commission informed the applicant that it was unable to give him a favourable reply. It is against both those decisions to reject his complaint, the first implied and the second express, that the applicant has made his application within the prescribed period.

io The applicant's submission must be rejected. There is no need to go into the interest of the applicant, as it suffices to state that in any event the measures adopted by the administration in order to regulate the situation of officials who might expect to be promoted within their former career bracket at the time when the new regulation came into force come under the measures which may be legitimately taken to resolve the transitional problems arising in regard to the officials concerned from the restructuring of career brackets. It follows that the promotions in question could still be treated as being promotions within the same career bracket.

GEERAERD v COMMISSION

The alternative submission

1 1 As an alternative argument the applicant contends that the Commission did not observe the formalities provided for by the decision of 21 December 1970 under which the promotion of any official must be preceded by the publication of the list of officials regarded as the most deserving of promotion, drawn up by the appointing authority on the proposal of Promotion Committees. Furthermore, contrary to practice, the promotion proposals of the branches were not notified to the staff. Those are, it is alleged, essential formalities since the purpose of the publication of those lists is to enable the officials concerned to defend their interests effectively. Finally, the applicant contends that there is a further irregularity in regard to the promotion proposals in so far as they originated not from the Promotion Committee so-called but from an "ad hoc committee" separate from it.

H Consideration of the facts has moreover disclosed that no safeguard contained in the Staff Regulations has been disregarded in the procedure applied to the promotions in issue. It is not in fact disputed that the applicant's case received attentive and impartial treatment from the administrative authority as did those of other officials who likewise fulfilled the requirements for being promoted. The applicant has not been able to prove that he incurred any special disadvantage as a result of the appointing authority's following, as it did, a procedure different from that prescribed by the decision of 21 December 1970. Consequently there can be no doubt as to the lawful·nature of the promotions made under those circumstances.

is It follows from all of the foregoing that the application must be rejected as a whole.

Costs

i6 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

i7 However, under Article 70 of the Rules of Procedure the costs incurred by the institutions in actions by employees of the Communities shall be borne by those institutions.

On those grounds,

Delivered in open c o u r t in L u x e m b o u r g o n 4 D e c e m b e r 1980.

J. A. Pompe P. P e s c a t o r e Deputy Registrar President of the Second Chamber

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 30 OCTOBER 1980 »

Mr President, employment of other servants of the Members of the Court, European Communities" (Official Journal, L 119 of 3 May 1978, p. 1) The applicant in the proceedings on which by virtue of Article 35 entered into which I give my opinion today entered force on 4 May 1978. Article 13 the Commission's service on 1 October rearranged career brackets for language 1967 as a probationary official in staff listed in Annex I (A) to the Staff Category L / A 7 . He became established Regulations of Officials. For the future on 1 April 1968 and was employed as an Grade L/A 6 and Grade L/A 7 became assistant translator in the Translation, one career bracket so that as from 4 May Documentation, Reproduction and 1978 promotion from L/A 6 to L/A 5 Library Directorate of the Directorate- could no longer occur, as before, within General for Personnel and one career bracket but was considered as Administration. On 1 October 1972 he promotion from career bracket (L/A 7 - was promoted to translator in Grade L/A 6) to career bracket (L/A 5 - L / L/A 6 which at that time under Annex I A4). (A) to the Staff Regulations of Officials was the starting grade in Career Bracket L/A 6 - L/A 5. His name was one of those on the list published on 10 March After a meeting on 30 October 1978 the 1978 of officials who fulfilled the Heads of Administration of the conditions for promotion in the 1978 budget year. institutions of the Communities recommended that in the promotion of officials of the language staff within the On 2 May 1978 Council Regulation N o career brackets applying up to 3 May 912/78 was adopted "amending the Staff 1978 the rules previously in force should Regulations of Officials of the European be applied to officials who had the Communities and the conditions of required seniority on that date and