C-28/80
ECLI:EU:C:1981:208
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- Súdny dvor Európskej únie
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- 61980CJ0028
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JUDGMENT OF THE COURT (FIRST CHAMBER) 17 SEPTEMBER 1981
Jean Leclercq ν Commission of the European Communities
(Former official — Contracts for studies and surveys)
Joined Cases 28 and 165/80
Officials — Applications to the Court — Act adversely affecting an official — Concept — Decision of an institution concerning the conclusion of contracts for studies and surveys with third parties — Exclusion (Staff Regulations of Officials, Arts 90 and 91)
A decision relating in general terms to the employment of an institution cannot the use of appropriations for the be regarded as an act adversely affecting conclusion of contracts for studies and a former official within the meaning of surveys with persons or companies not in Article 91 of the Staff Regulations.
In Joined Cases 28 and 165/80
JEAN LECLERCQ, a former official of the Commission of the European Communities, residing in Brussels, represented by Marcel Slusny of the Brussels Bar, with an address for service at the Chambers of E. Arendt, Advocate, 34B Rue Philippe-II, Luxembourg, applicant, ν
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Raymond Baeyens, acting as Agent, assisted by J. C. Denoncin of the Brussels Bar, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg, defendant,
1 — Language of the Case: French.
JUDGMENT OF 17. 9. 1981 — JOINED CASES 28 AND 165/80
APPLICATIONS under Article 90 of the Staff Regulations and objections by the defendant that they are inadmissible,
T H E C O U R T (First Chamber)
composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges,
Advocate General: S. Rozès Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of was allowed to terminate his service and the procedure and the conclusions, was granted the allowances provided for submissions and arguments of the parties in Article 3 (1) of Regulation No may be summarized as follows : 2530/72 from 1 July 1973 to 31 January 1984.
I — Facts and procedure 2. In a letter of 13 July 1979 which was received by the Commission on 19 July 1979, Mr Leclercq informed Mr Pierre 1. Jean Leclercq entered the service of Baichère, Director-General for Personnel the Commission of the European Atomic and Administration, that he had "par- Energy Community in 1958. In 1963 he ticipated in the establishment of a was appointed head of division with company of independent consultants effect from 1 January 1962. The last post called SCIENCE", as a member thereof, he held, as from 1 April 1971, was that and that the company had been refused of Head of the Energy Policy Division "a contract to carry out a study for of the Directorate-General for Energy. which its name had been put forward by the department concerned, the Direc- torate-General for Energy". The "refusal At his request, made in accordance with which is due to the recommendation Regulation No 2530/72, Mr Leclercq of the Advisory Committee on
LECLERCQ ν COMMISSION
Commissioned Studies . . . entails a direct Having received no specific reply to the loss for SCIENCE". To that letter was complaint lodged on 18 January 1980, annexed a copy of a letter sent on 22 Mr Leclerq, by a letter dated 10 July June 1979 to the Director-General for 1980 and registered at the Court on 14 Budgets by Mr Léon Valette, Managing July 1980, lodged Application 165/80, Director of SCIENCE Sprl. which has the same subject-matter as Application 28/80.
In a letter of 19 October 1979 the Director-General for Personnel and In accordance with Article 91 (1) of the Administration replied that "pursuant to Rules of Procedure, the Commission a new decision adopted by the applied to the Court for a decision on Commission in November last year, the the admissibility of the two applications. Directorate-General for Budgets is no longer authorized to conclude contracts for studies and surveys with undertakings or associations in which former officials Upon hearing the report of the Judge- who still retain financial connections Rapporteur and the views of the with the institution under the Staff Regu- Advocate General, the Court (First lations have a direct or indirect interest. Chamber) decided to open the oral The measure concerned is thus one of procedure without any preparatory general application which is therefore in inquiry. no way specific to the company in question or to the former officials involved in it". By order of 26 March 1981 the Court (First Chamber) decided to join Cases 28/80 and 165/80 for the purposes of 3. On 18 January 1980 Mr Leclerq the procedure and judgment. lodged a complaint in accordance with Article 90 (2) of the Staff Regulations of Officials "against the decisions notified by Mr Baichère in his letter of 19 October 1979". His purpose was to II — Conclusions of the parties "secure: (i) withdrawal of the general decision adopted in November 1978 with regard to the contracts for studies and surveys henceforth to be withheld from In both cases the applicant claims at the undertakings or associations involving present stage of the proceedings that the former officials of the Commission; Court should: (ii) withdrawal of the decision not to grant a contract for a study on solar energy to SCIENCE Sprl of which the — Dismiss the objection of inadmis- complainant is an active member" and sibility as unfounded; also "in so far as necessary . . . annulment of the said decisions". — Fix a time-limit for the defendant to By a letter dated 16 January 1980, lodge a defence; registered at the Court on 18 January 1980, Mr Leclercq lodged Application 28/80. — Reserve costs.
JUDGMENT OF 17. 9. 1981 — JOINED CASES 28 AND 165/80
The Commission contends that the Court than in exceptional cases and by express should: derogation decided upon by the Commission, contracts for studies and In Case 28/80: surveys should not be concluded with former officials who retain financial links — Dismiss the application as inadmis- with the Commission." sible; — Direct that the applicant bear the The Commission maintains that the application in Case 28/80 is also costs which he has incurred; inadmissible owing to the absence of a in Case 165/80: prior complaint through official channels rejected by an express or implied — Dismiss the application as inadmis- decision. sible; In Case 165/80 the Commission observes — Order the applicant to bear all the that the applicant prepared a number of costs. brochures or articles at the request of Directorate-General IX, C (Coordi- nation and preparation of publications III — Submissions and argu- Division) and Directorate-General X m e n t s of t h e p a r t i e s (Spokesman's Group and Directorate- General for Information). The costs, which amounted in the various cases to The Commission states by way of intro- BFR 5 000, BFR 15 000, BFR 35 000 and duction that SCIENCE (Société de BFR 55 000, were charged to Items 2720 Consultants Indépendants et Neutres de (dissemination of information) and 2730 la Communauté Européenne) Sprl, (dissemination of information to young which has its registered office in people) of the general budget, Section Brussels, was constituted on 6 September III: Commission, Title 2, Chapter 27 1973. All three founder members are (expenditure on publishing and infor- former officials of the Commission who mation). terminated their service in accordance with Regulation No 2530/72 of the As regards the facts, the applicant states Council of 4 December 1972. in reply that there is no difference between the contract entered into with In both cases it maintains that the SCIENCE Sprl before 26 June 1974, applications are inadmissible on the namely on 19 December 1973 (Contract ground that the applicant has no locus 084-73-12 EC 1-B) and the contracts standi or that there was no act adversely entered into with SCIENCE Sprl sub- affecting him. In fact, it is maintained, sequently (contracts of 19 January 1977 there is no individual, specific or direct and of 18 June 1978). In particular there connection in the present case between is no difference between contracts to the applicant and the decisions of a carry out studies, orders commissioning general nature adopted by the studies and specific research contracts. Commission with regard to the use of appropriations for studies, decisions Moreover, there are undertakings which which have been applied in this case to at present benefit from contracts for SCIENCE Sprl, which is a legal person studies notwithstanding the participation distinct from the applicant. The of former officials. Commission points out that the decisions of a general nature were taken on 26 The applicant denies that the two June 1974 (and not in 1978) and that applications 28/80 and 165/80 are they are worded as follows: 'Otherwise inadmissible on the ground of his lack of
LECLERCQ ν COMMISSION
locus standi or the lack of any act As far as Case 28/80 is concerned, the adversely affecting him. applicant maintains that the letter which he sent to Mr Baichère on 13 July 1979 The locus standi is different in each must be regarded as a complaint within individual case and is dependent on the the meaning of Article 90 (2) of the Staff connection between the applicant and Regulations. the contested measure. The unpublished general measure and its application to SCIENCE Sprl affect the applicant, IV — Oral procedure whose entitlement to dividends from the company is dependent upon the The parties presented oral argument at company's profits. The applicant is the sitting on 4 June 1981. likewise prevented from working under The Advocate General delivered her the auspices of the company. opinion at the sitting on 9 July 1981.
Decision
1 By applications lodged at the Court Registry on 18 January and 14 July 1980, Jean Leclercq, a former official of the Commission of the European Communities, brought two actions based on the provisions of the Staff Regu- lations of Officials, seeking annulment of the decision notified to him by letter of 19 October 1979 by P. Baichère, Director-General for Personnel and Administration of the Commission, and of the decision of the Commission of November 1978 to which the said letter referred.
2 Mr Baichère's letter, to which reference is made in both actions, was the answer to a letter from the applicant dated 13 July 1979 in which the applicant explained that, shortly after terminating his service with the Commission in July 1973, he had participated in the formation of a company of independent consultants called SCIENCE, the shares of which had been allotted to former officials of the Commission and other persons of various nationalities. Although not an active member, he had been kept informed of the company's activities; the company had been denied a contract to carry out a study for which its name had been put forward by the department concerned, the Directorate-General for Energy; according to information
JUDGMENT OF 17. 9. 1981 — JOINED CASES 28 AND 165/80
received by SCIENCE over the telephone, the refusal was based on the fact that the company employed former officials who maintained financial links with the Commission. The applicant stated in his letter that he found this reason "surprising", and he asked Mr Baichère to intervene so as to avoid a dispute, since the refusal entailed a direct loss for SCIENCE.
3 In his reply dated 19 October 1979 Mr Baichère expressed his regret that he was unable to give a favourable response. He stated that "pursuant to a new decision adopted by the Commission in November last year, the Directorate- General for Budgets is no longer authorized to conclude contracts for studies and surveys with undertakings or associations in which former officials who still retain financial connections with the institution under the Staff Regu- lations have a direct or indirect interest".
4 In the course of the proceedings the parties acknowledged that the "new decision" referred to in Mr Baichère's letter was in fact a decision adopted by the Commission on 26 June 1974. The Court takes the actions to be directed against that decision, and against its application to the company SCIENCE, as indicated in Mr Baichère's letter.
5 By two separate documents, lodged on 14 March and 29 September 1980, the Commission raised objections of inadmissibility and applied to the Court for a decision thereon.
Admissibility
6 It appears from the information provided by the Commission, which has not been contested by the applicant, that the Commission's decision of 26 June 1974 related to the use of appropriations for studies and was worded as follows: "Otherwise than in exceptional cases and by express derogation decided upon by the Commission, contracts for studies and surveys should not be concluded with former officials who retain financial links with the Commission."
LECLERCQ ν COMMISSION
7 A decision of this kind, which relates in general terms to the use of appropri ations for the conclusion of contracts for studies and surveys with persons or companies outside the Commission, cannot be regarded as an act adversely affecting a former official within the meaning of Article 91 of the Staff Regu lations.
8 In so far as Mr Baichère's letter of 14 October 1979 is to be regarded not as mere information, given by an official of the Commission to a former colleague, but as embodying a decision to withhold a contract for a study by virtue of the Commission's decision of 26 June 1974, the refusal to grant the contract was addressed to the company SCIENCE and not to the applicant; therefore it concerned the applicant neither directly nor individually.
9 The two applications must therefore be dismissed as inadmissible, without the need for an examination of the Commission's argument that the application in Case 28/80 is inadmissible on the ground that there was no prior complaint through official channels.
Costs
10 Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, pursuant to Article 70 of the Rules of Procedure, costs incurred by institutions in actions brought by servants of the Communities are to be borne by the institutions.
On those grounds,
THE COURT (First Chamber)
hereby:
1. Dismisses the applications as inadmissible;
OPINION OF MRS ROZÈS — JOINED CASES 28 AND 165/80
2. Orders the parties to bear their own costs.
Koopmans O'Keeffe Bosco
Delivered in open court in Luxembourg on 17 September 1981.
J. A. Pompe T. Koopmans Deputy Registrar President of the First Chamber
OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 9 JULY 1981 1
Mr President, consequence of the accession of new Members of the Court, Member States, and for the termination of service of officials of those Communities. His request was granted. This action is brought against the Commission by one of its former As the Court knows, Article 3 (1) of officials, Jean Leclercq. that regulation provides for substantial monthly allowances to be paid to officials in such a situation. Those I — Mr Leclercq entered the service of allowances continue until the retirement the Commission of the European Atomic of the officials concerned, that is to say Energy Community on 15 March 1958. in the case of Mr Leclercq until 31 From 1962 he served as a head of January 1984. division in that Commission and then in the single Commission of the European On 6 September 1973 three officials of Communities. In 1973 he applied for the the Commission who had terminated definitive termination of his service in their service in accordance with Regu- accordance with the first subparagraph lation N o 2530/72, Mr Brinck, Mr of Article 2 (3) of Regulation N o Siebker and Mr Valette, founded 2530/72 of the Council of 4 December a consultancy company called 1972 introducing special and temporary "SCIENCE" (Société de Consultants measures applicable to the recruitment of Indépendants et Neutres de la officials of the European Communities in Communauté Européenne) which carries
1 — Translated from the French.