C-2/80

JUDGMENT Op 28. 10. 1980 — CASE 2/80

In Case 2/80

HUBERT DAUTZENBERG, an official of the Court of Justice of the European Communities, of 1 Rue Jean-Pierre Brasseur, Luxembourg-Ville, Grand Duchy of Luxembourg, with an address for service in Luxembourg at his home, represented by José Saels of the Brussels Bar. applicant, v

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, represented by F.-X. Zwickert, its Director of Administration, residing in Luxembourg, assisted by Alex Bonn of the Luxembourg Bar, with an address for service at his Chambers in Luxembourg at 22 Côte d'Eich, defendant,

APPLICATION for annulment of the Court's decision of 21 March 1979 promoting Mr Fetler to the only A 3 post vacant at that time and for the promotion of Mr Dautzenberg to that grade,

THE COURT (Third Chamber)

The facts of the case, the course of the conversion. The appointing authority by procedure and the conclusions and a decision dated 21 March 1979 and arguments of the parties may be published on 30 March 1979 appointed summarized as follows: Joseph Fetler, Head of the Finance Branch, to be Head of Division as from 1 April 1979 and promoted him from Grade A 4 Step 6 to Grade A 3. I — Facts and written procedure The applicant, who does not dispute Mr Fetler's personal merits, considers that The applicant, Hubert Dautzenberg, an this decision is unfair to him. He official of the Court of Justice of the therefore submitted a complaint to the European Communities since 1963, was appointing authority on 25 June 1979 appointed Deputy Head of the Library against the said decision under Article 90 and Documentation Directorate by a of the Staff Regulations of Officials of Decision dated 9 March 1966. Since the European Communities. 1974 his grade has been Grade A 4. The applicant in his complaint laid special emphasis on the fact that in July The applicant's superiors, who were in 1978 (when Miss Maggioni was turn Mr Sperland Mr Daig, have since promoted) Mr Speri informed him that 1976 recommended to the Court his he had been given an assurance by the promotion to Grade A 3. However, as a Registrar that the next available A 3 post result of the budget proposals for 1978 would be awarded to Mr Dautzenberg. put forward at the time by Mr Speri on The disputed decision, he claims, behalf of the Library and Documentation amounts to a breach of that promise and Directorate, which, as far as A3 posts is therefore in breach of the were concerned, provided for the acknowledged principle of "the applicant's promotion to Grade A 3, one protection of the trust which an official A 3 post was allocated to the Documen- must legitimately have in his tation Branch and given to Miss administration". Maggioni. The applicant also complained of the In its budget proposals for 1979 the "continuous and systematic deflection of appointing authority asked the budget- the A 3 post to branches other than the ary authority of the Communities for the Library", which is unjustified having "conversion" of three A 4 posts into A 3 regard both to the importance of that posts. These conversions related, in branch and to the way in which the addition to the post of Head of the applicant has organized it for sixteen Library, to the posts of Head of the years past. Finance Branch and Head of the Personnel Branch. The budgetary Finally the applicant is convinced "that authority, however, only granted one the contested decision was not taken

with full knowledge of the facts, that is "1. Order the defendant to produce the to say after having taken into comparable files of the applicant, consideration all the arguments Miss Maggioni and Mr Fetler which militating in favour both of Mr Fetler were produced in 1978 and 1979 for and of myself". The decision therefore the purpose of promoting the latter did not have a legal basis. two officials to Grade A 3 instead of the applicant; The Court, as appointing authority, by a reasoned decision dated 5 October 1979, rejected the complaint. Drawing 2. Annul the decision of 21 March attention to the fact that Article 45 of 1979, published on 30 March 1979, the Staff Regulations provides that promoting Mr Fetler to the only A 3 promotion shall be by decision of the post vacant at that time; appointing authority the Court points out that even if assurances as to 3. Promote the applicant to that grade; promotion prospects had been given, such assurances could not bind the appointing authority when it makes its 4. Order the defendant to pay the selection at a future time. When the costs." appointing authority promotes an official its choice is determined after consideration of the comparative merits The defendant contends in its defence of each candidate and his periodic that the Court should : reports. In the present case the appointing authority made its selection in "1. Take note that the defendant does accordance with these principles, account not dispute the admissibility of the being taken of the careers of the officials application; concerned as a whole, of the requirements of the different branches 2. However, dismiss as inadmissible the and of every aspect of the selection to be applicant's claim that the files of the made. two other officials be produced for The applicant on 8 January 1980 brought the Court's file and also his claim to an action in which he asks the Court be promoted to Grade A 3 ; inter alia to annul the decision of 21 March 1979 published on 30 March 3. Dismiss the remainder of the 1979 promoting Mr Fetler "to the only application as unfounded; A 3 post vacant at that time and to promote the applicant to that grade". 4. Make an order as to costs in Upon hearing the report of the Judge- accordance with the provisions Rapporteur and the views of the applicable." Advocate General the Court (Third Chamber) decided to open the oral procedure without any preparatory The applicant in his reply maintains the inquiry. claims put forward in his application and claims in the alternative that the Court should: II — Conclusions of the parties "1. Allow the applicant to prove, if The applicant in his application orig- necessary by the hearing of witnesses, inating proceedings claims that the Court that the Registrar did in fact make a should: promise to Mr Speri to promote the

applicant to the next A 3 post which have been considered superior to his own became vacant in 1979; for the purpose of being promoted to Grade A3. Whilst admitting that the 2. Refer the case to the Court to be appointing authority has a very wide decided in plenary session." discretion in this field, he submits that by virtue of that same principle of legitimate The defendant contends in its rejoinder trust this discretion presupposes both that the Court should: considerable freedom of decision and at the same time the scrupulous

administration. to branches other than the Library. He contends that it follows from Article As far as concerns the purpose of the 45 of the Staff Regulations, which action the defendant submits that the provides that promotion shall be by claims for the promotion of the applicant decision of the appointing authority, that to Grade A 3 are inadmissible since the assurances which may have been given as Court of Justice is not entitled to to promotion prospects by an officer's interfere in actual administration. It also immediate superior or the Registrar can asserts that the files of other officials under no circumstances bind the who are not parties to the dispute cannot appointing authority when it makes its be produced whatever the applicant had choice at a future time. Nevertheless, in mind when he applied for their when the Court stated in its decision production. The submissions put forward rejecting his complaint that the applicant to that end should be declared could not be unaware of that principle, it inadmissible. made an interpretation restricting the principle of legitimate trust. Supposing On the other hand the defendant does that the immediate superior is aware of not challenge the admissibility of the this restrictive interpretation the trust application as such. which the official should legitimately have in him no longer has any meaning. With regard to the basis of the case the defendant's main submission concerning The applicant states that he does not the argument relating to the principle of intend to cast any doubts on the the trust which an official must unquestionable merits of Miss Maggioni legitimately have in his superior is that a and Mr Fetler. He nevertheless wonders distinction must be drawn between the in what respect their qualities ought to powers of immediate superiors and those

The applicant points out in his reply that in this case the Court is acting in a dual With reference to the applicant's capacity as the judicial and the assertion that the wide discretion allowed appointing authority. Every appointing to the appointing authority presupposes a authority may go back on its own scrupulous consideration of comparable decisions provided that rights acquired files the defendant points out that the by persons under a previous decision are applicant is convinced that the respected. It is not only entitled to appointing authority did not have involve itself in its own administration complete files at its disposal and that the but it also has the duty to involve itself in contested decision as to promotion was the functioning thereof. not taken with full knowledge of all the facts. But this submission is factually incorrect. As the administrative decision The applicant also complains that this of 5 October 1979 stated, the appointing case has been assigned to a Chamber, authority made a selection in accordance . that is to say to a branch of the full with the principles applicable, taking into Court which has in particular all the account the careers of the persons powers of the appointing authority. A concerned, the needs of the various judgment of the Court in this case in branches and all aspects of the selection other than plenary session would, in the to be made. light of the fact that in these proceedings the Court is acting in a dual capacity at one and the same time, rule out the possibility of the applicant's obtaining a re-examination of the contested decision. That is all the more apparent because Therefore the applicant asks, in the owing to the limited size of the alternative, for the case to be assigned to institution the appointing authority has the Court for a decision in plenary at its disposal, in addition to the files session.

As far as concerns the production of applicant, in this case what is questioned documents which the applicant has is whether the discussion which must requested, he submits that what is to be have preceded the decision of 21 March adjudicated upon is not the knowledge 1979 took place with full knowledge of of the particulars of persons who are not all the documents which must in the parties to the action but the knowledge ordinary course make up a file for of the material factors which were comparison including the opinions of brought before the appointing authority him formulated by his superior officers. and culminated in the decision of 21

That decision may perhaps be well founded Finally the applicant, on the basis of but only the Court can say whether that Raponi, cited above, submits that his is so after argument on both sides which application for production of documents offers the applicant all legal guarantees cannot be rejected because such a recognized by the relevant legislation. rejection would make a legal action based on Article 45 of the Staff Regul- ations illusory. With reference to the defendant's statement that the appointing authority had at its disposal important sup- The applicant maintains all the basic plementary information resulting from arguments set out in his application personal knowledge of the candidates for including the legal foundations referred promotion the applicant submits that this to therein. statement is an actual admission before the Court that subjective factors prevailed when Mr Fetler and Miss The applicant, in answer to the Maggioni were appointed in lieu of him. defendant's arguments put forward in its It is the specific aim of the procedure defence points out in the first place that, provided for in Articles 45 and 46 of in the defendant's arguments concerning the Staff Regulations to eliminate the principle of the protection of subjectivity. The requirement to carry legitimate expectation, it is not denied out a comparative, that is to say, an that promises were made to him. The objective, examination of the files is defendant merely states that these absolutely necessary in order to permit a promises cannot bind the appointing possible review by the Court at a later authority when it makes its selection at a date in the event of a dispute.

JUDGMENT OF 28. 10. 1980 — CASE 2/80

As far as concerns the interests of the administration of the contested decision service the applicant submits that the was not something which it was onus is not on him to prove that impossible for the applicant to foresee. the considerations leading to the appointment of another candidate were correct. It is for the defendant to prove Likewise as far as concerns the offers to by factors which can be objectively- adduce evidence the applicant's established not only which interest of the arguments concerning the role of the service the authority had in mind at the Registrar must be rejected as being ex- time of the appointment which is the traneous to the dispute. The offer to subject of the contested decision but also adduce evidence put forward in the what was the reason for its selection. alternative should . be rejected as irrelevant.

The defendant also denies that the The present dispute does not lend itself appointing authority based its assessment to a discussion of breach of the principle in this case on subjective factors for of the protection of legitimate evaluation. expectation. Even if it is assumed that this principle, which has been upheld by the case-law of the Court in fields As far as concerns the applicant's unconnected with the civil service, can be submission that there has been transposed to that service, it must be "continuous and systematic deflection of admitted that the implementation by the the post" the defendant maintains that

DAUTZENBERG v COURT OF JUSTICE

3 An examination of the Court's file indicates that because of the increasing importance of the duties entrusted to some of the branches of the Court of Justice, this institution considered that it was necessary for such branches to be placed under the authority of officials with the rank of head of division and consequently in Grade A 3.

JUDGMENT OF 28. 10. 1980 — CASE 2/80

4 Such an organization of the branches may be effected either by creating additional posts of head of division or by converting A4-A5 posts of Principal Administrator, which are vacant or even already occupied by heads of branches, into posts of head of division in Grade A 3. "Whereas application was made for the conversion of several posts, the budget authority granted for the 1979 budget only one conversion of an A4 post into an A3 post, without however stating which, and leaving that to the institution to decide.

5 By promoting the Head of the Finance Branch the contested decision assigned the one converted post which was granted to the Finance Branch which has thus been placed under the authority of a head of division. In fact the post in question, before it was converted, was already filled by the same official as a principal administrator.

6 The applicant has in substance called in question the compatibility of that decision with the rules of the Staff Regulations.

7 Amongst the various submissions put forward in support of the application it is necessary to examine first the submission that, by allotting the A 3 post in this way, the defendant has disregarded the interests of the service, a correct evaluation of which would have been bound to lead, after a comparison of all the relevant factors, to the post's being assigned to the applicant in his capacity as Head of the Library.

9 It follows from those provisions and also from the general principles applicable to the public service that, although each institution has a wide discretion in relation to its internal organization and the assessment of posts, it is the importance of the different branches or posts as well as of the duties and responsibilities incumbent upon them which must be the principal criterion by virtue of which it is appropriate to decide whether a given branch must be directed by — or whether a given post must be assigned to — an official in a grade corresponding to a post of head of division rather than a post of principal administrator.

10 However, if it should appear that the need for such an arrangement were to affect simultaneously and in the same way several branches or posts without its being possible, as was the position in this case, to attend to it at the same time because the budget authority did not see fit' to grant the number of posts applied for, the competent authority is entitled then to take into consideration the merits and qualifications of the officials who, after the conversion of the posts, might assume the duties of the regraded post. The application of this criterion presupposes however that the needs of the different branches or posts in question have been compared and assessed.

1 1 An examination of the Court's file does not make it possible to state that all these obligations have been fulfilled. No factor has come to light permitting the finding that an assessment of the needs of the branches in question preceded the contested decision. Furthermore, although the decision of 5 October 1979 whereby the Court rejects the applicant's complaint quotes the requirements of the different branches as being one of the reasons for the

THE COURT (Third Chamber)

hereby:

1. Annuls the Court's decision of 21 March 1979;

2. Orders the Court to pay the costs.

Kutscher Mertens de "Wilmars Mackenzie Stuart

Delivered in open court in Luxembourg on 28 October 1980.