C-189/81

J U D G M E N T O F T H E C O U R T (SECOND CHAMBER) 8 JULY 1982 '

Robert Bosnians v Commission of the European Communities

(Official — Assignment to a post in a personal capacity)

Case 189/81

Officiali — Applications to the Court — Act adversely affecting an official — Concept — Transfer to a post in a personal capaàty of an official already assigned in a personal capacity to another post of the same grade — Transfer permissible (Staff Regulations of Officials, Art. 91)

A decision of the appointing authority the same grade does not alter the assigning to a post in a personal capacity position of the person concerned under an official who has already been assigned the Staff Regulations and therefore does in a personal capacity to another post of not adversely affect him.

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

composed of: O. Due, President of Chamber, A. Chloros and F. Grėvisse, Judges,

Advocate General: P. VerLoren van Themaat Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

mission, the applicant was assigned as an II — C o n c l u s i o n s of the p a r t i e s adviser to Directorate A, Personnel, of that Directorate General, following the The applicant claims that the Court merger óf the Salaries, Pensions, should: Missions and Miscellaneous Allowances Division, headed by the applicant, with " 1 . Declare the application admissible the Individual Rights and Privileges and well-founded; Division. 2. Consequently: The memorandum of 26 June 1980 from (a) annul the defendant's decision of Mr Baichère, Director General of Direc- 25 June 1980 in so far as the torate General IX, effecting the re- applicant's assignment as an assignment, did not state whether the adviser to Directorate IX-A, A 3 post was established or in a personal Personnel, with effect from 1 capacity. The applicant attempted to August 1980, is to an A 3 post in clarify that question by a request of a personal capacity; 25 July 1980 pursuant to Article 90(1) (b) declare that the post occupied by of the Staff Regulations. the applicant under the said decision is and must be an In a memorandum of 13 October 1980, estiblished A 3 post listed in the the Director General did not refer to defendant's list of posts; that request but replied: " . . . you (c) annul the rejection of the request continue to occupy an A 3 post in a of 25 July 1980 and of the personal capacity in the list of posts." complaint of 2 December 1980;

The applicant contests that argument. He points out that after his assignment in a B — Substance personal capacity on 1 August 1978 his request of 3 January 1974 was with- drawn as a result of verbal assurances given to him by Mr Baichėre to the The applicant claims that there was a effect that the decision relating to his breach of and/or failure to observe: assignment was vitiated by certain i i- accuracies and that his previous administrative position had in no way Articles 1, 5, 7(1) and Annex I. Part A, changed. The applicant states that he of the Staff Regulations of Officials; was therefore convinced that he occupied an established post. However, in the event of his submission's not being The Commission decision "describing accepted by the Court, the applicant the basic posts figuring in Annex I-A of claims in the alternative that the decision the Staff Regulations of the European which is now contested in any case Communities, and the duties thev involve contains a new factor altering the legal ... ) or factual position resulting from the original decision, if it should be considered that there was such a decision The Commission decision of 10 De­ and that it might be pleaded against the cember 1963 promoting him, as from 1 applicant. That new factor is the October 1963, to Grade A 3; applicant's assignment to the new post of adviser as from 1 August 1980, in so far as it is to a post in a personal capacity. Principles of law, such as the principles of equality, good administration and distributive justice. The Commission denies that the remarks attributed to Mr Baichėre were made The applicant claims that by the decision and maintains that since that time the in question he was wrongly and applicant has continued to occupy a post unlawfully assigned to an A 3 post in the in Grade A 3 in a personal capacity and list of posts, not in a permanent capacity that he withdrew his request in full but in a personal capacity. knowledge of the facts without being given a "verbal assurance" such as he alleges. Moreover, the fact that the In particular, the applicant claims that applicant made a new request on 25 July the status of official involves assignment 1980 proves that he could not have made to an established post in the institution's a mistake in that regard. list of posts. Thus the official is entitled to a post corresponding to his grade not only in relation to the nature of the The applicant's arguments in the alter­ duties and description of that post but native must also be rejected, according also in relation to the classification of the to the Commission because his new post in the list of posu and also to equal assignment as adviser is a measure of an treatment.

In addition, the applicant claims that the The defendant contends that the creation of established posts and posts applicant's legal position is identical in held in a personal capacity leads to every respect to that of other Grade A 3 discrimination, since a post held in a officials in the institution and that his personal capacity does not carry the assignment in a personal capacity has not same chances of promotion, transfer or in any way affected his position under assignment to a higher post as a post in the Staff Regulations or his material or an established capacity. non-material interests. The Commission states that Grade A 3 corresponds to the basic post of head of division; the duties Moreover, according to the applicant, which correspond to that post are those so far as non-material interests are of head of division sensu strido and concerned, the ambiguity of the adviser; an adviser is defined as a expression "in a personal capacity" "highly qualified official with the task of covers two opposite situations in relation advising one body of the institution or to a post: that of the official who holds a engaged in studies or supervisory work, post of a grade lower than the grade to under the authority of a Director which' he is assigned in a personal General or a Director". Again, the capacity — for example, an A 3 official Commission points out that the applicant "¡n a personal capacity" assigned to a enjoys all the rights and obligations post of principal administrator (A 4) — attached to Grade A 3, in particular in and, in addition, that of the official who relation to his salary and his eligibility holds a post corresponding to the grade for promotion to Grade A 2. to which he is assigned in a personal capacity— for example, an A 3 official "in a personal capacity" assigned to a On the other hand, it states that the post as Adviser (A 3). applicant's allegation concerning the legal basis of the distinction between posts which are permanent and those The applicant states in particular that it held in a personal capacity is unfounded is the absence of legal basis for the and arises as a result of the fact that the creation of posts in a personal capacity applicant confuses an official's position which makes the Comission's practice under the Staff Regulations with a unjustified. The explanation that that provision which relates only to the practice was implemented because of budget. The Commission explains that budgetary constraints is not accurate budgetary constraints prevent the and, moreover, the description of a post number of officials and other servants for budgetar)' purposes is not irrelevant from being increased, whilst the to the application of the Staff Regu- institution may on grounds relating to lations. the interest of service find it necessary to increase the number of officials in a given grade beyond the posts fixed in the Lastly, the applicant claims that his post list of posts pursuant to authorization appears in the Commission's list of posts from the budgetary authority. That is the among the established posts but in Grade explanation for the existence of so-called A 4, not Grade A 3. The defendant's

Decision

1 By an application lodged at the C o u r t Registry on 19 J u n e 1981, M r Bosmans, an official of the Commission of the E u r o p e a n C o m m u n i t i e s b r o u g h t an application for the a n n u l m e n t of the Commission decision of 25 J u n e 1980 assigning him as a n adviser to Directorate I X - A with effect from 1 August 1980, in so far as it was t o an A 3 post in a personal capacity, a n d for the a n n u l m e n t of the rejection of his request of 25 July 1980 and of his complaint of 2 D e c e m b e r 1980 which asked that that post should be an established A 3 post.

BOSMANS v COMMISSION

2 The applicant entered the service of the Commission on 1 September 1958 in Grade A 5. He was promoted to Grade A 4 with effect from 1 March I960, then to Grade A 3 as head of division with effect from 1 October 1963, and he occupied corresponding posts in the Commission's list of posts. On 1 August 1973 he was assigned to a post in which he retained his Grade A 3 in a personal capacity.

j Indeed, according to the list of posts within the meaning of Article 6 of the Staff Regulations published in the Official Journal on 19 November 1973 and a detailed list of posts dated 30 October 1973, the post to which the applicant was appointed on 1 August 1973 was an A 5/A 4 post, but was occupied by him as an official in Grade A 3 in a personal capacity. Following that assignment, the applicant lodged a request with the appointing authority asking that his new post should be replaced by another identical as to its established nature to that which he had held without interruption since 1 October 1963. However, that request was withdrawn on 8 February 1974.

s The Commission contends that the assignment to an A 3 post in a personal capacity has no effect on the applicant's position under the Staff Regulations or on his material and non-matenal interests, since the post in a personal capacity is exclusively a budgetary concept which does not affect the definition of posts under the Staff Regulations, resulting particularly from Article 5 and Annex I, P a n A, thereof.

9 The Commission further claims that the application is inadmissible, inasmuch as it calls in question a situation which has existed for at least eight years without interruption, since the decision of 25 June 1980 has had no effect on the applicant's position under the Staff Regulations or on his material and non-material interests.

io It is common ground that the application seeks to challenge the decision of 25 June 1980 by which the applicant was assigned as an adviser to an A 3 post in a personal capacity. By assigning the applicant to an A 3 post in a personal capacity, the decision in question did not alter his position under the Staff Regulations, which resulted from his assignment to an A 3 post in a personal capacity with effect from 1 August 1973.

n If follows that in so far as the contested measure retains the applicant in an A 3 post in a personal capacity, it neither alters nor seeks to alter the applicant's position. Therefore in this respect it is not an act which adversely affects him.

i2 The applicant does not contest the legality of his transfer to the post of adviser, which is the true purpose of the contested decision of 25 June 1980.

T H E COURT (Second Chamber)

hereby:

1. Dismisses the application;

2. Orden the parties to bear their own costs.

Due Chloros Grévisse

Delivered in open court in Luxembourg on 8 July 1982.