C-178/80

JUDGMENT OF 17. 12. 1981 — CASE 178/80

3. The obligation to provide assistance not against the acts of the institution laid down by Article 24 of the Staff itself, the review of which is governed Regulations is concerned with the by other provisions of the Staff Regu- defence of officials by the institutions lations. against the acts of third parties and

In Case 178/80

AMEDEO BELLARDI-RICCI, DICK KLEYMANS, JACQUES GOETSCHALKX, STEFAN BAUER, E V A RITTWEGER, translators in the M e d i u m and Long-term Translation Division of the Commission, represented by Victor Biel, of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the said Victor Biel, 18a R u e des Glacis, applicants,

v

COMMISSION OF T H E EUROPEAN COMMUNITIES, represented by its Principal Legal Adviser, R a y m o n d Baeyens, acting as Agent, assisted b y Robert Andersen, of the Brussels Bar, 214 Avenue Montjoie, Brussels 1180 with an address for service in Luxembourg at the office of Oreste M o n t a k o , a member of the Commission's Legal Department, Jean M o n n e t Building, Kirchberg, defendant,

JUDGMENT

Facts and Issues

The facts of the case, the course of the Translation Division, subdivided into six procedure, the conclusions, submissions sections, one for each language. and arguments of the parties may be summarized as follows:

The organization of the division has given rise to several written questions and to claims made jointly by the heads of section that the various sections I — Facts and w r i t t e n p r o c e d u r e making up the division should be transformed into as many divisions, each with a head of division in Grade L/A 3 at its head.

JUDGMENT OF 17. 12. 1981 — CASE 178/80

and the corresponding career brackets in In the meantime, by letters dated 21 June relation to language staff, the heads of 1979 and registered at the Secretariat- section wrote jointly to the President of General of the Commission on 22 June the Commission on 12 July 1978 to seek 1979, the applicants lodged individual their reclassification as heads of division requests under Article 90 (1) of the Staff in Grade L/A 3. That letter was treated Regulations inviting the Commission to by the Commission as a request within take all the administrative and budgetary the meaning of Article 90 (1) of the Staff steps necessary to convert the posts of Regulations and registered as such at the head of section into L/A 3 posts of head Secretariat-General of the Commission of division. on 7 September 1978, under No 1408/ D/78.

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duties by its discrimination against, Article 90 (2) thereof, since the and unlawful treatment of, two appointing authority ought to have identical departments; alternatively, remedied the discrimination and unequal permit the applicants, by means of an treatment instead of confining itself to inquiry if necessary, to establish vague promises; and the applicants have infringements of the Staff Regu- been adversely affected within the lations, in particular Article 5 (3), meaning of Article91 of the Staff Regu- and breach of the principles of lations. proper administration; The defendant argues in its defence that (b) Declare that the present situation is the action is inadmissible on two unlawful, and therefore: grounds.

(c) Order the Commission to fulfil its First, it maintains that the joint letter own promise concerning the con- dated 12 July 1978 which the heads of version of the translation sections in section of the Medium and Long-term Luxembourg into divisions; Translation Division, including the applicants, sent to the President of the (d) Allow the request for the regrading Commission asking for regrading in of the posts at present occupied by Grade L/A 3 should be regarded as a the applicants and accordingly request under Article 90 (1) of the Staff appoint them as heads of division; Regulations and that it was properly registered as such at the Secretariat- (e) Order the Commission in any event General of the Commission on 7 to pay the entire costs. September 1978.

dated 21 June 1979 and registered at the It is therefore not right, in the applicant's Secretariat at the Commission on 22 view, to misrepresent a simple letter as a June 1979 could not have caused the step prior to litigation. It might at most limitation period to start to run afresh. amount to a communication falling within the context of a discussion opened between the applicants and the Com- mission. Consequently, the limitation If that first argument is rejected, the periods began to run on 22 June 1979 defendant submits that, the action ought when the individual requests made on 21 to have been brought by Thursday 17 June 1979 by each of the applicants were August 1980 at the latest. Since the registered. action was lodged at the Court Registry on Friday 18 August 1980 it must be regarded in any event as being out of time. As regards the Commission's second submission, concerning the date of the application, which ought in the defendant's view to have been lodged by The applicants allege in their reply that, Thursday 18 August at the latest, the as regards the first argument against the applicants observe that 18 August was admissibility of their action, their joint not a Thursday but a Monday and letter of 12 July 1978 is not really a further that the Registrar of the Court in request within the meaning of Article 90 reply to a letter from counsel for the (1) of the Staff Regulations but just one applicants stated that the application was letter in the correspondence between the lodged at the Court on 16 August and applicants and the Commission. The registered on 18 August with the note applicants stress that the internal regu- "Received 16 August 1980". That lations of the Commission have provided correction ought to induce the defendant for special dispatch notes on which the to abandon that submission of writers must specify the nature of their inadmissibility, which moreover in the dispatch. applicants' view ought to be rejected on the basis of Article 80 (2) of the Rules of Procedure of the Court, which provides that if the period for bringing an action The applicants state that no such note would otherwise end on a Sunday or on was attached to the letter in question, an official holiday it is to be extended which does not contain the word until the end of the first following "request" or any similar expression, and working day. The applicants therefore that it is only in the margin that one submit that their actions would be finds the word "request" written by hand admissible even if they had been brought by an official in Brussels. on Monday 18 August.

writer or whether it suffices that the true (d) Breach of its own decision object is to ask the appointing authority "amending job descriptions for the to take a decision with regard to him. basic posts in the language service The defendant is in favour of the listed in Annex I-A to the Staff latter view and in support quotes Mr Regulations of Officials of the Tugendhat's letter of 31 July 1979, European Communities". That de- which begins as follows: "I am at last in cision, which took effect on 4 May a position to answer your letter referred 1978, provided for "advisers" to be to above in which you request that placed under the authority of a certain heads of section in the translation director-general or director. For division in Luxembourg be regraded as those of the applicants who were L/A 3." appointed advisers there was no change either in their duties or posting and they continue to perform the duties of heads of section as in With regard to the second submission the past; put forward in the alternative in relation to the delay in lodging the application at the Court Registry, the defendant declares that in the light of the expla- (e) The applicants charge the Com- nations furnished by the applicants in mission with failing to discharge its their reply it concedes that the action is obligation under Article 24 of the admissible subject to the relevance of the Staff Regulations to assist its observations which it makes on the officials, inasmuch as it refuses to nature of the applicants' letter of 12 July restore equal treatment between 1978. Brussels and Luxembourg and thus eliminate discrimination in the structure of its departments; the heads of section in Luxembourg bear Substance the same responsibilities as their colleagues in Brussels and are in charge of an equally large or larger staff. The budgetary considerations The applicants charge the Commission put forward by the Commission are a with: fallacious pretext since three of the applicants are already in Grade L/A 3 and the other two receive salaries scarcely lower than they (a) Disregard of Article 5 (3) of the would obtain if they were regraded Staff Regulations, which provides to the post of head of division. that identical conditions with regard to career in the service are to apply to all officials belonging to the same category or the same service; In reply the defendant cites the general principle to the effect that it is for each (b) Breach of the principle of non- institution to determine its own internal discrimination; organization, for which purpose it has a wide discretion according to the decisions of the Court in Cases 5/70 Prelle, 61/70 Vistosi, and 14/79 Loebisch. (c) Breach of the fundamental principle It answers each of the submissions put of equal treatment; forward by the applicants as follows:

(a) Disregard of Article 5 (3) of the internal organizations. In support the Staff Regulations Commission cites the judgment of the Court in Case 14/79 Loebisch v Council and contends that there is no breach of the principle of fairness because an institution classifies a post in a lower grade than that in which a comparable The defendant observes that Article 5 (3) post is classified in another institution. of the Staff Regulations provides that The defendant does not deny that it is its identical conditions of recruitment and intention, so far as budgetary resources career in the service shall apply to all allow and in accordance with the needs officials belonging to the same category of the service, gradually to reorganize or the same service. It cannot be denied, the Medium and Long-term Translation according to the defendant, that the Division in Luxembourg, but it denies officials of the Medium and Long-term that the applicants have a right to require Translation Division are all treated it to proceed with such a reorganization equally, especially as regards career and a fortiori to do so immediately. It development. In so far as the applicants' adds that differences in organization are submission is to the effect that the justified by reason of the unequal range Commission subjects officials of that and volume of translation work division to conditions of career develop- performed by the Medium and Long- ment different from those enjoyed by term Translation Division on the one their colleagues in the translation hand, and by the translation divisions in divisions of Directorate D in Brussels Brussels on the other. and translation departments in other Community institutions, it observes that the submission is the same as that based on breach of the principle of equality and non-discrimination between officials. In their reply the applicants challenge both the facts and the legal basis of the Commission's reasoning. They maintain that the the defendant is subjecting them to discrimination and unequal treatment because when they were appointed heads (b) Breach of the principle of equality of of section the Commission applied much treatment and non-discrimination stricter criteria than those which are at present applied. They maintain that discrimination and unequal treatment are shown by a lowering in the criteria for selection which shows that the conditions of recruitment and career development The defendant is of the view that the vary from one place of employment to manner in which it has organized Direc- another, whereas at one time the torate-General IX (Personnel and conditions were the same. They stress Administration) and in particular the that their intention is not to obtain different administrative structure given to personal promotion but the reorgan- the translation units in Brussels and ization of a department which is Luxembourg is not open to criticism becoming unmanageable. Further, they because it is a manifestation of the wide submit that the purport of the cases cited discretion which it has in making use of by the defendant is different. The its personnel resources and as regards its judgment in the Vistosi case confirms the

principle of the freedom to organize number of staff reflects the scale of the departments but subject to the protection duties to be performed and determines to of the rights of officials under the Staff a large extent the kind of administrative Regulations. As regards the judgment in structure to be adopted. the Loebisch case, they maintain that it is irrelevant to the present action since it was concerned only with a comparison between the departments of different institutions whereas the object of the present case is to determine whether an institution may organize its translation Moreover, the Commission considers department differently according to that in the present case its discretion in whether it is established in Luxembourg organizing its departments has been or Brussels. exercised with full regard to the rights of the officials under the Staff Regulations. The defendant therefore stresses that it does not challenge the legitimate nature of the applicants' aspirations, which moreover concur with its own intentions, but it does deny the right of the In its rejoinder the defendant challenges applicants to impose a change and, even the conclusions inferred by the applicants more, to decide when it must be carried from the requirements for entry into its out. The Commission has at no time translation departments in Brussels and undertaken to carry out the reorgan- Luxembourg. The vacancy notices show, ization contemplated within a particular according to the defendant, that the time, for it is only too aware of its need, requirements for the two places of having regard to the budgetary employment are the same. The constraints which are more and more Commission does not think that what it onerous, to make a choice between all says regarding the applicants' career the requests submitted to it and to development can be regarded as con- postpone those which cannot be granted tradictory. Its intentions have not yet at present. been fulfilled because of budgetary difficulties and it will be only when the Commission has all the necessary L/A 3 posts that it will be able to make the present sections into divisions, each under the control of a head of division. In any event, at the present stage the organization of the Medium and Long- (c) Disregard by the Commission of its term Translation Division is not own decision, which took effect on unlawful. The creation of posts of 4 May 1978, "amending job adviser in Grade L/A 3, which are descriptions for basic posts in the scarcely to be distinguished from posts as language service listed in Annex I-A head of section, shows that notwith- to the Staff Regulations of Officials standing its still incomplete nature the of the European Communities" intended reorganization has already begun. Finally, the applicants' argument to the effect that the problem arises in terms of duties performed and responsibilities assumed, and not in terms of staff, is accepted by the defendant, which nevertheless stresses that the The defendant explains that the groups comprising the Medium and Long-term

Translation Division have always been Commission to be promoted to those directed by officials of Grade L/A4 posts. under the authority of a head of division in Grade L/A 3 who is himself responsible to the Director of Direc- torate-General IX in Luxembourg and that their duties correspond to the description in the decision in question, which provides that the head of a group In their reply the applicants insist that the "directs the work of a group of trans- Commission has disregarded the said lators . . . and sees to it that the members decision inasmuch as their responsibilities of his group receive such training as may and situation have in no way changed. be required". To direct a group with They observe that the three officials responsibility for planning, preparation appointed as "advisers" are responsible of work, observance of time-limits and to a head of division, as they were in the making periodic reports thus normally past, and that their administrative falls within the duties of an official in position has in no way changed. They Grade L/A 4. continue to administer a department which from the administrative point of view has the dimensions of a unit but does not have the status of one. The Commission has thus "obscured" a necessary measure by creating three posts of adviser which are still in rank subordinate to the head of division and through him responsible to a director or director-general, whereas according to the particulars of a decision amending the decision of 4 May 1978 the "adviser ought to be responsible to a director- Having regard to the fact that the general or director". In the applicants' creation of three posts in career bracket view there is a contradiction between, on L/A 3 is only a stage in the gradual reor- the one hand, the attitude of the ganization of the translation departments defendant as expressed in Mr Ortoli's in Luxembourg, the defendant observes letter of 19 September 1975 and in Mr that it did not intend to convert the Tugendhat's letter of 13 July 1979 translation groups into translation div- recognizing the present shortcomings isions and appoint heads of division over and, on the other hand, the contention them and that, moreover, there are no in the defence that the existing structure corresponding posts on the detailed list is the only one which is possible at of posts. It observes that the duties present. Further, the applicants consider performed by the officials promoted to the creation of the posts of "advisers" as the rank of "adviser" are not those of the worst of solutions because it in no heads of translation divisions and that way contributes to improving the even after the complete reorganization of administration of the translation groups, the Medium and Long-term Translation which are unmanageable. In creating Division as desired by the applicants it those posts the Commission thus would be for the Commission as recognized the lack of justification for appointing authority to fill the posts of the present structure without moreover heads of division in the interests of the avoiding the suspicion that the new posts service without the applicants being able have been created simply to deceive the to claim any right as against the Parliament, where several questions have

Decision

1 By application lodged at the Court Registry on 16 August 1980 A. Bellardi- Ricci D K l e y m a n s ' J· Goetschalkx, S. Bauer and E. Rittweger, officials in Grades L/A 3 or L/A 4 in the Commission's Medium and Long-term Translation , Division in Luxembourg, brought an action against the C o m m i s s i s implied refusal to reorganize the said division by converting

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the present sections into divisions and regrading the posts of head of section into posts of head of division in Grade L/A 3.

2 It should be noted that with a view to carrying out such reorganization the Commission created three posts in Grade L/A 3, described as posts of "adviser", and allocated them to three of the applicants. The applicants did not consider that measure to be sufficient and sent the President of the Commission a joint letter dated 12 July 1978 which was registered at the Secretariat-General of the Commission as a request within the meaning of Article 90 (1) of the Staff Regulations.

3 By letters dated 21 June 1979, registered at the Secretariat-General of the Commission on 22 June 1979, the applicants, acting individually, submitted requests under Article 90 (1) of the Staff Regulations inviting the Commission to take all the administrative and budgetary measures necessary to convert the posts of head of section into L/A 3 posts of head of division. By letter dated 17 January 1980, registered on 21 January 1980, they lodged a complaint with the appointing authority under Article 90 (2) of the Staff Regulations against the implied rejection of their requests.

8 As regards the second ground of inadmissibility, the applicants observe that their application was in fact lodged on 16 August 1980 and registered on 18 August with the remark "Received 16 August 1980", which is, moreover, admitted by the Commission. They therefore submit that their action is admissible as being brought within the limitation period which expired on 17 August 1980. They also observe that, according to Article 80 (2) of the Rules of Procedure of the Court, where the period for bringing an action would otherwise end on a Sunday or on an official holiday, it is extended until the end of the first following working day and consequently the action would have been admissible even if brought on Monday 18 August 1980.

9 As regards the first submission of inadmissibility, it must be affirmed that even if a written request does not expressly refer to Article 90 of the Staff Regulations and contains no expression to that effect, it may amount to a request thereunder if it invites the appointing authority to adopt a decision.

10 Nevertheless, it must be observed in the circumstances of the present case that the letter of 12 July 1978 cannot be considered outside the context constituted by the exchange of correspondence over a number of years between the various persons concerned in the Medium and Long-term Translation Division and successive Presidents of the Commission. In

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accordance with its content, the letter of 12 July 1978 must be regarded as belonging to the series of successive communications intended to urge the Commission to reorganize the division in the manner desired by the applicants and not as a request under Article 90 of the Staff Regulations.

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Regulations and that similar departments may be organized differently only if they belong to different institutions and not if they belong to the same institution.

16 Further, the applicants rely on the Commission's decision which took effect on 4 May 1978 "amending job descriptions for basic posts in the language service listed in Annex I-A to the Staff Regulations", according to which "advisers" are placed under the authority of a director-general or a director. It is said that the Commission has disregarded that decision because, by its refusal to reorganize their department, those of the applicants who have been appointed "advisers" have changed neither their duties nor their posting and continue to perform their duties as head of section, as in the past. Moreover, they are still responsible to their head of division, which is contrary to what is stated in the amending decision of 4 May 1978.

17 Finally, the applicants complain that the Commission has not fulfilled its obligation to assist its officials pursuant to Article 24 of the Staff Regu- lations.

18 With regard to these matters, it must be pointed out that, although Article 5 (3) of the Staff Regulations provides that identical conditions of recruitment and career in the service are to apply to all officials belonging to the same category or the same service, Article 4 of the Staff Regulations provides that no appointment or promotion shall be made for any purpose other than that of filling a vacant post as provided for in the Staff Regulations.

19 The conditions of recruitment and career in the service referred to in Article 5 (3) cannot be considered outside the framework determined by the organ- ization of the departments. Although that provision requires the Community administration to respect the equality of officials, in the various categories, with regard to the conditions governing recruitment and promotion, it does not restrict the freedom of the institutions to organize the various administrative units taking account of a whole range of factors, such as the nature and scope of- the tasks which are assigned to them and the budgetary

23 As regards the obligation to provide assistance laid down by Article 24 of the Staff Regulations, it suffices to observe that that provision is concerned with

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the defence of officials by the institution against the acts of third parties and not against the acts of the institution itself, the review of which is governed by other provisions of the Staff Regulations.

24 It follows that the applicants' action must be dismissed as unfounded.

Costs

25 Pursuant to Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.

2. Orders the parties to bear their own costs.

Due Pescatore Chloros

Delivered in open court in Luxembourg on 17 December 1981.

A. Van Houtte O. Due Registrar President of the Second Chamber