C-184/80

JUDGMENT OF 9. 7. 1981 — CASE 184/80

higher than his substantive career 3. By postponing, out of necessity, as bracket", it in no way follows from the result of the setting-up of its that provision that an official may departments, the implementation of only be called upon to occupy the procedures laid down in Article temporarily a post corresponding to a 29 of the Staff Regulations, the grade no higher than that immediately administration concerned does not act above his own. against the interests of the service.

In Case 184/80

ADRIAEN VAN ZAANEN, a reviser at the Court of Auditors, residing at 16 Rue des Roses, Luxembourg, represented by Victor Biel, Advocate, residing at 18a Rue des Glacis, Luxembourg, with an address for service in Luxembourg at the Chambers of Mr Biel, applicant, and

COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES,

Luxembourg, represented by Jean-Aimé Stoli, Secretary of the Court, residing in Luxembourg, assisted by Alex Bonn of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 22 Côte d'Eich, defendant,

JUDGMENT

Facts and Issues

The facts and the arguments of the It seems that no official was eligible for parties put forward during the written promotion to L/A 3 on that date. procedure may be summarized as follows :

3. Vacancy Notice N o CC/LA/27/ 1978 announced that the post of Head of Translation Division (Grade L/A 3) was vacant. Of the three candidates who I — Facts and written p r o c e d u r e submitted their application for a transfer in due time, the only one to fulfil the conditions set out in the notice (Grade L/A 3) withdrew his application at the end of 1978. 1. The applicant, Adriaen Van Zaanen, a Netherlands national and an official in Grade L/A 4 with the Commission since 1974, was transferred by a decision of 8 4. In that situation, by decision of 1 December 1978 to the Court of Auditors March 1979, the appointing authority in Grade L/A 4, Step 5, of the appointed the applicant as temporary Translation Division with effect from 1 head of the Translation Division of the January 1974. His seniority in step was Court of Auditors for a period of three fixed as from 1 March 1978. months starting on 1 March 1979.

end on the same date as the temporary had been extended to 2 October 1980 posting, namely 29 February 1980. the applicant submitted his application on 1 October 1980. However, he stated: "I intend to make an appeal to the Court 5. By decision of 28 February 1980 the of Justice pursuant to Article 91 (4) of appointing authority nominated another the Staff Regulations in order to obtain official, Mr E., a Danish national and a an interim ruling suspending this reviser in Grade L/A 5, as Head of the competition until a decision has been Translation Division on a temporary given on the merits of my main basis from 1 March to 30 August 1980. application". That decision was extended to 30 November 1980. 10. Upon hearing the report of the Judge-Rapporteur and the views of the 6. On 3 April 1980 the applicant Advocate General, the Court (Third submitted a complaint to the appointing Chamber), to which the case was authority under Article 90 of the Staff assigned by the Court's decision of 9 Regulations. In his complaint he October 1979 (Official Journal 1979, criticized the creation by the appointing C 265, p. 8) decided to open the oral authority of another temporary posting procedure without any preparatory as being contrary to the Staff Regu- inquiry. lations. He claimed that a vacant post may not be filled by a procedure which involves by-passing a grade and that the temporary appointment of his successor was hardly reconcilable with the interests II — C o n c l u s i o n s of t h e p a r t i e s of the service which had for a long time required that the vacant post in L/A 3 should be filled lawfully, that is to say by In his originating application the a competition under Article 29 of the applicant claims that the Court should. Staff Regulations or else by one of the other methods provided for by that (a) Declare the application admissible; article, namely promotion or transfer. (b) Declare it well-founded; That complaint met with no reply. (c) Consequently declare that since no 7. On 2 September 1980 the Court statement was provided of the of Auditors published Notice of reasons on which the decision to Competition N o C C / L A / 3 / 8 0 relating terminate the applicant's temporary to an internal competition for the post of posting was based, it cannot be relied Head of its Translation Division. upon against him and must therefore be annulled;

In the alternative In his originating application the applicant claims that the object of his Take note of the applicant's proposal to application is to make the appointing prove by inquiry that: authority of the Court of Auditors comply with the provisions of the Staff (a) The L/A 3 post in question is more Regulations relating to vacant posts. The or less reserved to a national of one applicant alleges that his appointing of the Member States and is not authority has not complied with the bound to be given to a Netherlands requirements contained in Article 4 of national; the Staff Regulations, and in particular with the final paragraph of that article (b) The nomination of an L/A 5 official which requires the institutions to fill as Head of Division on a temporary vacant posts "by transfer, promotion or basis has seriously damaged the an internal competition". In the interests of the department in applicant's view that omission has caused question; him manifest injury and he claims in respect of non-material damage, one unit In any event order the defendant to pay of account to be converted into Belgian the costs. francs.

financial benefit, and non-materially, in In its defence the Court of Auditors states so far as the applicant was replaced by that the object of the dispute is the fact another temporary appointee, whose that the applicant was not promoted to status was Grade L/A 5. That was all the Grade L/A 3. In the application that more surprising in view of the fact that object is divided into three parts and all on 10 December 1979 the Court of three are inadmissible. Auditors in the person of Sir Norman Price had congratulated the applicant for the enormous amount of translation work which had been undertaken under In his complaint the applicant stated that his direction and which was described as he accepted that under Article 7 (2) of a "tremendous effort". the Staff Regulations his temporary appointment could not be renewed whereas in his application he claims that the decision not to renew his temporary The applicant states that he fulfils all the posting should be annulled. Therefore conditions as to seniority laid down in the application is not admissible on that Article 45 of the Staff Regulations so ground. In any event the decision of 28 that his promotion would have been February 1980 is not an act adversely quite regular (and was what all the staff affecting the applicant within the expected.) meaning of Article 90 (2) of the Staff Regulations. That decision extended the differential allowance and the applicant's As to the law, the applicant contends temporary posting from 1 January 1980 that the appointment or his successor is to 28 February 1980. contrary to Article 7 of the Staff Regu- lations under which the temporary occupation of a post may last no more than one year and which furthermore As for the submission that "the prohibits such occupation where it appointing authority could not nominate involves by-passing a grade. another servant for a temporary posting", the Court of Auditors contends that that ground of action is inadmissible H e maintains the arguments set out in unless the official in question is joined as his complaint but states further that the a party. appointing authority had a whole year to fill the L/A 3 post in accordance with the procedures laid down in Article 4 of the Staff Regulations but it had not done so. As for the allegation made in the application that the appointing authority failed to comply with the provisions of the Staff Regulations relating to the The appointing authority had not only filling of vacant posts, that failure was infringed Articles 4 and 7 of the Staff not as such criticized in the complaint. Regulations but also Article 29 which Therefore that claim should be declared requires it to consider the possibility of inadmissible on the ground that the pre- promotion and transfer within the liminary procedure required by the Staff institution in order to fill vacant posts. Regulations has not been followed. Furthermore the applicant offers to prove that, contrary to Article 27 of the Staff Regulations, it was not desired to appoint a Netherlands national to the As regards the substance of the dispute, post in question. the Court of Auditors begins with the

third claim (subparagraph (e) of the appointing authority had to open the conclusions contained in the application) competition procedure. The initiation of by which the applicant asks the Court to that procedure and the preparations and declare that the appointing authority was formalities which it involved took some bound to advertise the vacant post and time, especially since the Court of examine the possibility of filling the post Auditors had to set up and organize all by promotion in accordance with Articles its departments. On 28 February 1980 4 and 29 of the Staff Regulations. the notice of competition was still not ready for publication. That is why the administration had to decide to proceed with a new temporary posting so that the post to be occupied was not left vacant. As regards this matter the Court of Auditors points out in particular that even if the applicant had been an official at the Court since 24 October 1978 (the date of Vacancy Notice N o CC/LA/27/ As for the decision on the new 1978) his two years' seniority would not temporary posting, the second paragraph be sufficient to ensure his promotion. It of Article 7 (2) of the Staff Regulations is apparent from Article 45 that if only provides that "the duration of a one candidate is eligible for promotion temporary posting shall not exceed one the appointing authority may justifiably year". That stipulation required the take the view that it does not have a administration to terminate the appli­ choice which is sufficiently large to make cant's temporary posting but did not an appointment fulfilling as far as prohibit a second temporary appointment possible the requirements of the post to where there are practical difficulties in be filled. What is more, the Court of regard to making a permanent Auditors has never intended to exclude a appointment to the post in question. Netherlands national from the post in What is more, it is apparent from Article question. 7 (2) that it does not prohibit the temporary appointment of an official to a higher post. Therefore it was permissible in this case for the appointing authority to assign an official in Grade The decision of 28 February 1980 L/A 5 to a post in Grade L/A 3 on a relating to the applicant's temporary temporary basis. posting is not an act adversely affecting him, it does not come within the provisions of Article 25 (2) of the Staff Regulations and for that reason it did not have to contain a statement of the One of the factual arguments put reasons on which it was based. forward by the applicant in his reply is that the Court of Auditors did not publish Notice of Competition N o C C / LA/3/80 relating to an internal competition until 17 months after the As regards the statement that the applicant's temporary posting had appointing authority did not comply with commenced although everyone and Articles 4 and 29 of the Staff Regu­ particularly the appointing authority lations, the Court of Auditors points out knew that as from 1 January 1976 the that in view of the negative result of the applicant fulfilled the requirement as to procedure to fill the post by transfer, the seniority in grade in order to be eligible

for promotion. The reason for that delay that it did not commence a new was that the appointing authority had a appointment procedure in good time, candidate in mind and wanted to give that is to say, from the time when it him time to acquire some "seniority" ought to have ascertained that, to the and experience so that he might become disadvantage of the applicant and during eligible for Grade L/A 3. the temporary posting, the procedure begun on 24 October 1980 with the advertising of the vacant post in Vacancy Notice N o CC/LA/27/78 had been unsuccessful. The applicant's action does not rest on a complaint that he was not promoted but on subparagraphs (c) to (f) As far as admissibility is concerned, the of the conclusions set out in his applicant replies to the Court of application. Auditors' claim that his application is inadmissible by contending in particular that it goes without saying that in challenging the appointment of a second person by way or temporary posting the applicant had in mind all aspects of the decision of 28 February 1980 terminating According to the last subparagraph of his own temporary posting. The Article 7 of the Staff Regulations a administration did not give reasons for temporary posting may not last more its decision to terminate the applicant's than one year. That provision is a temporary posting and simultaneously necessary corollary to Article 4, its make the applicant subordinate overnight purpose being to require the appointing to a colleague of lower rank in disregard authority to start and complete the of Article 25 of the Staff Regulations. selection of candidates for a vacant post The applicant also contests the within the shortest period possible. defendant's argument that he should have joined as a party the official appointed on a temporary basis by the appointing authority when the applicant's own temporary posting came to an end. Finally, he emphasizes that in his complaint he drew attention to the The applicant also contends that an appointing authority's duty to fill a official may not be called upon to vacant post in the year in which the occupy a posting on a temporary basis by temporary posting was made and he by-passing a grade. The Court of specifically refers to a letter of 6 March Auditors quotes Article 7 (2) of the Staff 1980 which the Staff Committee wrote Regulations but it is careful not to go on this matter to the appointing into considerations of substance. The authority. irregularity of conferring a temporary posting on an official who is not eligible to be appointed to that post follows from the fact that it is impossible to calculate correctly the differential allowance referred to in the first subparagraph of Article 7 (2) in the event or the As to the substance of the dispute, the temporary appointment to a post of an applicant stresses that the criticism official to whom there has to be paid an levelled at the appointing authority is amount determined by the step "which

In those circumstances and in view of the dates mentioned above the appointing authority's conduct which the applicant In its rejoinder the Court of Auditors criticizes is understandable and justified. attributes the delay in the publication of The appointment of an official to a post Notice of Competition N o CC/LA/3/80 on a temporary basis on 1 March 1979 to the problems of organization which it and the extension of his temporary had to face as a new institution which posting to 29 February 1980 were had only been established on 25 October dictated by the needs of the service. The 1977 after ratification of the Treaties. position was no different in the case of The setting-up of the various bodies took the second temporary appointment as the some time. The first Staff Committee formalities for making a permanent took up its duties on 10 November 1978. appointment to the post had still not Its Rules of Procedure were adopted been completed. on 21 November 1978. The Joint Committee was set up by decision of 1 February 1979. The composition of that committee for 1979 was established on 19 February 1979. As to the admissibility of the application, the Court of Auditors maintains that it is not admissible for the reasons given in the defence. Those bodies for which the Staff Regu­ lations make provision had to have taken up their duties before the organization of any competition. As far as the substance of the case is concerned, the Court of Auditors claims that a time-limit placed on the temporary posting by Article 7 of the Staff Regu­ The departments could only be brought lations is the result of considerations into operation gradually. The organ­ relating to the interests of the service so ization of the Translation Division that, if the interests of the service so presented particular problems. The require, a second temporary posting may various sections had to be set up. be justified and is permissible. As far as the issue of the by-passing of grades is concerned, the Staff Regulations also take account of the interests of the service which in some circumstances may In order to recruit officials no less than justify the appointment of an official 157 competitions were organized. Every occupying a lower grade.

VAN ZAANEN ν COURT OF AUDITORS

3 Subsequently, by decision of 1 March 1979 the appointing authority made the applicant acting Head of the Translation Division of the Court of Auditors for a period of three months starting on 1 March 1979. That decision was adopted under Article 7 (2) of the Staff Regulations which states :

"An official may be called upon to occupy temporarily a post in a career bracket in his category or service which is higher than his substantive career bracket. From the beginning of the fourth month of such temporary posting, he shall receive a differential allowance equal to the difference between the remuneration carried by his substantive grade and step, and the remuneration he would receive in respect of the step at which he would be classified in the starting grade if he were appointed to the career bracket of his temporary posting.

The duration of a temporary posting shall not exceed one year, except where, directly or indirectly, the posting is to replace an official who is seconded to another post in the interests of the service, called up for military service or absent on protracted sick leave".

4 By decision of 21 June 1979 the appointing authority extended that temporary posting by one month, from 1 to 30 June 1979, and at the same time granted the applicant the differential allowance provided for by the second subparagraph of Article 7 (2).

5 That decision was extended three times until 29 February 1980 when the applicant had occupied the post for one year, which is the maximum period laid down in the second subparagraph of Article 7 (2) for a temporary posting.

8 As a result, on 3 April 1980 the applicant submitted a complaint to the appointing authority under Article 90 of the Staff Regulations in which, although accepting that by virtue of Article 7 (2) of the Staff Regulations his temporary posting could not be extended again, he contended that the appointment of Mr E. was unlawful because it was clear from the wording of Article 7 (2) that the appointing authority may not fill a post left vacant for a period exceeding one year by making successive temporary appointments to it. What is more, the appointing authority is also prohibited under that provision from calling upon an official to occupy temporarily a post in a career bracket higher than his own, which is what the appointing authority had done. Finally, the appointment of Mr E. was not in the interests of the service which required that the post in question be filled by means of one of the procedures laid down in Article 29 of the Staff Regulations.

9 The complaint met with no reply and the applicant lodged the present appeal with the Court.

10 It should also be noted that on 2 September 1980 the appointing authority published, in accordance with Article 29 (2) (b) of the Staff Regulations, a Notice of Competition N o C C / L A / 3 / 8 0 , relating to an internal competition for the post in question. In September 1980 the applicant indicated to the Selection Board that he would not be a candidate for the reasons expressed in his complaint and in his application to the Court but nevertheless he later submitted his formal application before the closing date. During the oral procedure the applicant stated, without being contradicted, that none of the candidates succeeded in the competition.

— Since the applicant accepted in his complaint that his temporary posting could not be renewed he may not raise that issue in his application;

— The decision terminating the applicant's temporary posting has not affected him adversely as the applicant has accepted that that situation is the result of Article 7 (2) of the Staff Regulations;

— The applicant's final submission is inadmissible on the ground that it was not raised in his complaint;

— The appointment of Mr E. may not be challenged unless the official is joined as a party.

1 3 The first two arguments put forward by the Court of Auditors in support of its contention that the application is inadmissible cannot be upheld as they concern issues relating to the substance of the case. As to the third argument, it follows from the wording of the complaint, or at least by necessary implication, that the applicant's third submission is covered by it, so that that

JUDGMENT OF 9. 7. 1981 — CASE 184/80

VAN ZAANEN ν COURT OF AUDITORS

that an official may be called upon to occupy temporarily only a post in or immediately above his own grade.

18 That submission, too, cannot be upheld. It is apparent from Article 7 (2) that the maximum duration of a temporary posting relates to the maximum period in which an official may temporarily occupy the post in question. It does not impose a limit of one year on the temporary occupation of the post. That limitation applies only to the period in which the post may be occupied by the same official. Therefore, at the end of that period, the appointing authority has the right to fill the post by appointing another official who fulfils the conditions laid down in the first subparagraph of Article 7 (2).

19 What is more, it in no way follows from the first subparagraph of Article 7 (2) that an official may be called upon to occupy temporarily only a post corresponding to a grade no higher than that immediately above his own. The wording of that provision in fact shows that it envisages the temporary appointment of an official to a post "in a career bracket . . . which is higher than his substantive career bracket". It follows that the appointing authority had the right to appoint Mr E., who was in a career bracket comprising Grades L/A 4 and L/A 5, as Head of the Translation Division which is a post corresponding to Grade L/A 3.

20 According to the file on the case the main submission which the plaintiff makes against the appointing authority is that it did not commence a new promotion procedure in accordance with Articles 4 and 29 of the Staff Regu­ lations in good time, that is to say, from the moment when it ought to have established, with regard to the applicant and during his temporary posting, that the procedure commenced on 24 October 1978 with the advertising of the vacant post in Vacancy Notice N o CC/LA/27/78 had. failed. In the applicant's view, if the appointing authority had acted in this way he would have had a good chance of being successful in such a competition.

25 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure the institutions are to bear their own costs incurred in proceedings brought by servants of the Communities. That provision must apply by analogy in this case.

VAN ZAANEN ν COURT OF AUDITORS

On those grounds,

T H E C O U R T (Third Chamber),

hereby:

1. Dismisses the application as unfounded;