C-191/81

JUDGMENT OF 9. 12. 1982 — CASE 191/81

2. Article 24 of the Staff Regulations is Thus it is for the appointing concerned with the defence of authority, which is vested with dis- officials against the acts of third cretionary powers in that regard, to parties and not against acts emanating determine whether or not ac- from the institution itself. creditation is necessary for the per- formance of certain duties. If the 3. In view of that fact that accreditation appointing authority considers that, to an international organization is following a lawful change in the granted to officials and other servants responsibilities of an official or to enable them to perform their duties servant, accreditation is no longer more effectively, the advantages necessary, its decision is a direct result resulting therefrom attach to the post of that change and, accordingly, the occupied by the official or servant grounds on which the decision is concerned and not to him personally. based need not be stated.

In Case 191/81

ONNO PLUG, a temporary servant of the Commission of the European Communities, residing at 21 Avenue Weber, Geneva, represented by Edmond Lebrun of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, Advocate, 83 Boulevard Grande-Duchesse-Charlotte, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Jean-Pierre Delahousse and Hendrik van Lier, members of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Oreste Montalto, a member of its Legal Department, Jean Monnet Building, Kirchberg,

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure provided for a probationary period of six months. When the contract expired on 23 May 1978 it was not renewed but was Mr Onno Plug was employed by the merely extended until 22 September European Association for Cooperation 1978; Mr Plug was informed that [hereinafter referred to as "the renewal was impossible on the ground Association"] from 1966 to 1976 under a that appointment to the post of head of contract for an indefinite period. Under division was restricted to officials paid that contract, he performed various out of operating appropriations. duties and was subsequently placed at the disposal of the Commission of the European Communities which he A further temporary contract, albeit for a represented in Benin in 1975 and in different post, was concluded between Zambia in 1976. Mr Plug and the Commission on 15 November 1978; it was to take effect retroactively from 23 September 1978 At the beginning of 1977, the applicant and was to expire on 30 June 1980. terminated his contract with the Under that contract, Mr Plug was Association and signed a contract with recruited to an ACP temporary post in the Commission on 9 June 1977 with Grade A 3 as an adviser on relations with retroactive effect from 23 May 1977 the United Nations Conference on under which he was recruited as a Trade and Development (hereinafter temporary servant in order to perform referred to as "Unctad") with the the duties of head of division in the Commission's delegation in Geneva. Directorate General for Development, Divison VIII-B-2, and was classified in Grade A 3, Step 4. That contract was When that second contract expired, concluded for a period of one year, Mr Plug signed a fresh contract as a following a decision adopted by the temporary servant on 22 August 1980, Commission on 15 December 1976, and with retroactive effect from 1 July 1980,

for an indefinite period; he was assigned was "prejudicial to his professional repu- to the Commission's delegation in tation and integrity" — and also a Geneva but was classified as a "principal detailed description of his duties. In reply administrator" in Grade A 4. to the second request, Mr Tran van Thinh, the Head of the Commission's delegation in Geneva, sent a note to Mr On 22 November 1980, Mr Plug Plug on 18 March 1981 in which he submitted a complaint under Article 90 confirmed the latter's new duties. On 23 (2) of the Suff Regulations in which he June 1981, the Commission belatedly sought the annulment of his classification adopted a decision rejecting the in Grade A 4 and of the description of applicant's complaints in all other his duties in the contract of 22 August respects. 1980 and a declaration that he should be classified in Grade A 3, Step 5, in view of his seniority in that grade and the fact In those circumstances, Mr Plug brought that his duties were those of an adviser, this action, his application being received and that his financial entitlements should at the Court Registry on 22 June 1981. be adjusted accordingly with effect from 1 July 1980. Mr Plug claimed in that On hearing the report of the Judge- connection that in practice he was still Rapporteur and the views of the carrying out the same duties as those Advocate General, the Court (First which had been assigned to him under Chamber) decided to open the oral his previous contract. That complaint procedure without any preparatory remained unanswered. inquiry. However, the Commission was requested to submit, before the hearing, all the documents in its possession By note of 9 January 1981 from Mr concerning the decision adopted Meyer, Director General for Develop- regarding the duties to be performed by ment, Mr Plug was informed that an the applicant when the contract of 22 official in Grade A 3, Mr Grumbach, August 1980 was concluded. was to join the Commission's delegation in Geneva to represent Directorate General VIII. It was stated in that note that Mr Plug was henceforth only "to II — Conclusions of the parties cooperate" in carrying out the duties assigned to the delegation "under the authority" of the new official, Mr The applicant claims that the Court Grumbach. On the tatter's arrival, Mr should: Plug's accreditation to the international organizations in Geneva was withdrawn on the ground that the grant of such Declare the application admissible and accreditation was restricted to the official well founded; from Directorate General VIII. Consequently, On 20 January 1981 Mr Plug submitted a further complaint under Article 90 (2) Primarily: of the Staff Regulations in which he requested primarily the reinstatement of (a) Annul the decision in the contract of his accreditation — claiming that it was employment of 22 August 1980 as a absolutely necessary even for the per- member of the temporary staff, formance of the duties he was then per- which took effect on 1 July 1980, forming and that the withdrawal of it classifying the applicant in Grade A 4

Alternatively: In his reply, the applicant states the he (a) Grant the applicant compensation for will rely upon the judgment of the Court material and non-material damage, in that regard. with interest thereon at the rate of 8% per annum from 22 November (b) Substance 1980 until the date of payment; (b) Annul, in so far as necessary, the 1. First submission implied decisions rejecting his complaints of 22 November 1980 The applicant claims that the defendant and 20 January 1981 ; has infringed or failed to observe

(a) Articles 9 and 10 of the Conditions Consequently, and in any event, order of Employment of Other Servants of the defendant to pay the costs. the European Communities [herein- The defendant contends that the Court after referred to as "the Conditions should: of Employment"];

Dismiss the application as inadmissible (b) Articles 5 and 7 of the Staff Regu- inasmuch as it seeks the annulment of lations of Officials of the European the decisions rejecting the applicant's Communities (hereinafter referred to complaints; as "the Staff Regulations");

JUDGMENT OF 9. 12. 1982 — CASE 191/81

(c) the decision adopted by the applicable provisions. It follows from all Commission pursuant to Anide 5 of these considerations that the subsequent the Staff Regulations describing the decisions withdrawing his accreditation duties and powers attaching to each to the international organizations and basic post; and relieving him of his former duties are unlawful.

PLUG » COMMISSION

JUDGMENT OF 9. 12. 1982 — CASE 191/81

The conflict was 31 January 1981 to perform in Geneva resolved at the applicant's expense. That the same duties as those which he had explains why, initially, under the new carried out before under the contraa contracts he continued to perform the concluded in 1978. Although it cannot same duties as before, why he received necessarily be inferred therefrom that the no reply to his note of 27 September appointing authority had decided to 1980, why he was not informed of the assign those duties to the applicant under decision to transfer Mr Grumbach and to the new contract, there none the less relieve him of his duties until six months arises a presumption — which the after the new contraa had taken effect defendant has not succeeded in rebutting and why further vexatious measures were — that such a decision was taken. taken such as the withdrawal of his cred- Moreover, it is highly unusual that there entials, his removal to a small office are no documents (minutes, memoranda virtually hidden from view and so on. and so on) pre-dating or coinciding with the conclusion of the contraa which indicate what decision was taken with regard to the duties to be performed by the applicant under the new contract.

The Commission statement, left it unanswered. The denies that a dispute occurred between defendant gave no explanation whatever Directorate General I and Direaorate

The applicant alleges a breach of Article In the Commission's opinion, the 11 of the Conditions of Employment and applicant's argument that under the of the second paragraph of Article 25 of terms of the contract concluded in 1980 the Staff Régulations in support of his he was recruited to perform the same contention that the decisions with- duties as before, that is to say to advise drawing his international accréditation principally on relations with Unctad, has and relieving him of his former duties nothing to do with the principle that are in any event unlawful inasmuch as grading must correspond to the post they do not state thé reasons ori which occupied, inasmuch as that argument is they are based. Those décisions amount directed against his classification in to a repudiation of thé applicant and, Grade A 4 in his present contract. Whilst moreover, the withdrawal of his cre- the Commission concedes that under the dentials is incompatible even with the contract concluded in 1978 Mr Plug performance of his présent duties. Those acted as an adviser on relations with decisions should therefore have stated Unctad to the delegation in Geneva, the' the reasons on which they were based, situation created by the hew contract is particularly since the applicant has never quite different since that contract is for been assessed either in a periodic report, an indefinite period and the applicant, in a report at the expiry of his whose responsibilities are no longer probationary period or in any report comparable, as regards either their relating tó his efficiency or conduct in nature or their scope, with those which the performance of hiš duties. were previously assigned to him, is now required to assist Mr Grumbach. Since a temporary servant employed under a contract for a fixed period has no right to the renewal of his contract, the Commission was not guilty of a The Commission contends that the wrongful act, nor did it exceed the applicant's credentials were withdrawn bounds of its discretion, by re-engaging and his duties were changed not because him on different terms. he was "relieved of his duties" but as a

result of the change which the applicant's 3. Third submission situation underwent by agreement between the parties on 22 August 1980 when, upon the expiry of his contract for The applicant alleges breach of, or failure a fixed period, he accepted the offer of a to observe, new contract on different terms. The applicant is not entitled to complain about measures resulting from his (a) Article 11 of the Conditions of acceptance of that contract. Nor may he Employment, claim to have been adversely affected by the decision to assign different duties to him since it was taken with his (b) Article 24 of the Staff Regulations, agreement and, in view of the fact that no right exists to the renewal of a contract for a fixed period, it was advan- (c) the general obligation of prudence tageous to him. In any event, the and fitting conduct and the duty to decisions in question are administrative afford assistance to officials and to measures which were notified to the provide for their welfare ("Für- officials concerned by internal sorgepflicht"), and memoranda and were adopted in order to adjust the structure of the department in order to accommodate the members of (d) legal principles and rules of law, staff assigned to it and their individual including the principles of fairness, skills. Accordingly, it is incorrect to distributive justice and good regard the measures in question as administration and the principle that adversely affecting the applicant. They the administration is liable for are management decisions which may wrongful acts or omissions and must not be challenged and need not therefore provide compensation for the state the reasons on which they are based resulting damage. in accordance with the provisions relied upon. Furthermore, the manner in which the applicant's credentials were with- The applicant maintains that it is drawn and the concomitant grant of necessary to consider and analyse the credentials to Mr Grumbach clearly specific circumstances in which the show, even to third parties, that the contraa of 22 August 1980 was change which took place had nothing to concluded. At the time, the applicant had do with the merits or demerits of the been employed by the defendant for over applicant but was concerned solely with 14 years. In 1977 he terminated his the organization of the delegation, with contraa with the Association at the the result that Mr Plug's reputation defendant's request, relying upon could in no way have been undermined; assurances that he would be established moreover, he retains his accreditation to upon the expiry of two one-year the Swiss authorities and, consequently, contracts as a temporary servant, his diplomatic status. Furthermore, as far provided that he completed a as representation of the Community in probationary period of six months and international organizations is concerned, participated, on the expiry of the second the Commission must retain a margin of contraa, in an internal competition. discretion with regard to the organiz- Moreover, the contraa concluded in ation of its departments; for that reason 1977 provided for classification of the there is no body of rules governing the applicant in Grade A 3, Step 4, as did the grant of credentials in the field in question. first contract assigning him to Geneva

which was concluded in 1978 when, at to the delegation bears witness to the the time of signature, it was understood vexatious nature of those decisions. that upon the expiry of the contraa on 30 June 1980 the applicant would be appointed as head of a Commission delegation to an AC P State unless, in the meantime, an acceptable administrative solution had been found. In the light of those very specific circumstances the The Commusion points out that the duty applicant's demotion as regards his to provide for the welfare of its officials grading and the description of his duties is not embodied in any provision of the in his present contraa constitutes a Staff Regulations and that it reflects the failure to comply with the legal balance which must be maintained provisions, obligations and principles between on the one hand the principle referred to in this submission. There can that the administration is alone be no justification for a situation in responsible for the organization of its which the same person performs the departments, which it must be able to same duties in the same place, one day in determine and to adjust it in the interests Grade A3 as an adviser and the next of the service, and on the other the day in Grade A 4 as a principal obligation incumbent on the admin

other employees. The withdrawal of the contracts is a total negation of the con- applicant's accreditation to the inter traaual system applicable to auxiliary national organizations and the fact that and temporary staff, by contrast with the he was relieved of his former duties Staff Regulations which are applicable to merely aggravate the breaches com officials, and is in any event untenable plained of. Finally, the fact that the since temporary contracts for a fixed applicant was requested not only to period carry no right of renewal.

JUDGMENT OF 9. 12. 1982 — CASE 191/81

has no right to the credentials in reason of his specific experience. It question, since the grant thereof is follows logically from the intention normally restricted to the official from expressed in that letter that the Directorate General VIII. Accreditation Commission wished to establish the constitutes a specific feature of a given applicant as Head of Division VIH-B-2, post and is associated with the duties which is confirmed by the fact that he performed by an official rather than with was assigned to a post which was vacated him personally. Accordingly, in that as a result of an internal transfer and regard also, there is no need to weigh which is remunerated out of the oper­ the rights of the administration against ational budget. The applicant's claim that those of the applicant. the Commission promised to establish him in the future is therefore supported by a series of objective factors and, what is more, his contentions to that effect in his application have not been denied.

PLUG v COMMISSION

employment in the service of the In the alternative, if the Court is unable Association cannot, in itself, be regarded to grant compensation in kind as a result as employment in the service of the of the application of other principles, Commission since he was recruited by such as the principle of the separation the defendant for the first time by of judicial and administrative powers, contract of 9 June 1977. The the applicant seeks compensation for Commission disputes Mr Plug's assertion material and non-material damage that it "recalled" him to Brussels and sustained as a result of the defendant's maintains that it merely offered him a wrongful acts, in the form of damages temporary contract for a fixed period and interest thereon, and he points out which he accepted; that fact cannot that for that purpose account should be justify his claim that the Commission's taken of the loss of income resulting duty to provide for the welfare of its from his downgrading in the contract officials should be discharged more and from the damage to his reputation generously. It also disputes the and to his professional integrity caused significance of the letter to President by the fact that he was deprived of his Kaunda of Zambia since it was written credentials and relieved of his former "in a diplomatic context". Finally, it duties. contests the validity of the "promise" to establish the applicant since it was made by persons without any power whatever to bind the Commission and did not, in Those claims for compensation are any event, entail his establishment as a broken down as follows: the applicant matter of course but merely his parti- seeks, in his principal claim, the payment cipation in an internal competition which of damages assessed ex aequo et bono at he would not necessarily have passed. 2 500 Swiss Francs, in addition to compensation in kind. As regards his alternative claim, he maintains that the damage suffered by him consists of

received if in the most recent contract he by the applicant are unfounded and had been classified in Grade A 3, Step 5. maintains that: As regards the damage to his reputation, the applicant proposes that the (a) The applicant has failed to prove compensation should be assessed ex that he has sustained damage which aequo et bono at 5 000 Swiss Francs. As cannot be remedied by compensation regards the harm to his career, the in kind; applicant points out that he was entitled either to be established or at least to (b) In the light of developments in the have the procedure for establishment set course of the proceedings, any claim in motion and argues, moreover, that for compensation in kind or damages establishment would have given him equivalent thereto which does not security of tenure, continuity of his relate to the applicant's present duties and therefore a stable level of contract, which was concluded on remuneration, the right to transfer to the 22 August 1980, should be dismissed. Community's pension scheme the pension rights which he acquired under Having made those observations, the his contract with the Association, and Commission reiterates its previous opportunities for promotion. It must also conclusions. be borne in mind that the applicant agreed to terminate his contract with the Association only because he was promised establishment and the prospect of a subie future and of advancement in IV — Oral procedure his career, and that instead of an allowance upon the expiry of his contract he received a resetdement allowance, resulting in a shortfall of At the sitting on 1 July 1982. oral around 2 500 000 Belgian francs. The argument was presented for the applicant applicant therefore considers that the by E. Lebrun, of the Brussels Bar, and compensation which he should receive for the Commission of the European may be classified ex aequo et bono at Communities by H. Van Lier, a member 150 000 Swiss francs. of its Legal Department, acting as Agent.

3 At the beginning of 1977, the applicant terminated his contract with the Association in order to accept a temporary contract offered to him by the Commission. Under that contract the applicant was recruited for a period of one year, as from 23 May 1977, as head of division in Grade A 3, Step 4. That contraa, which expired on 23 May 1978, was extended until 22 September 1978 on the ground that renewal was impossible, according to the Commission, since appointments to the post of head of division are restricted to officials paid out of operating appropriations.

4 However, the applicant was re-engaged by the Commission under a new contract concluded on 15 November 1978, which was to take effect as from 23 September 1978 and to expire on 20 June 1980, and was assigned to an ACP temporary post as an adviser in Grade A 3 on relations with the United Nations Conference on Trade and Development (Unctad), attached to the Commission's delegation in Geneva.

s On 22 August 1980, the Commission offered the applicant a further contract with effect from 1 July 1980. Unlike the previous contract, the new contract provided that the applicant was to be engaged for an indefinite period as a principal administrator in Grade A 4, Step 4, and was to be attached to the Commission's delegation in Geneva.

6 The applicant signed that contract and returned it, but appended a note dated 27 September 1980 expressing a reservation regarding his classification.

JUDGMENT OF 9. 12. 1982 — CASE 191/81

That reservation was based, inter aita, on the fact that in his previous contract he was classified in Grade A 3 and that his duties in Geneva had remained unchanged.

PLŪC v COMMISSION

(a) Admissibility of the application for annulment of the implied decisions rejecting the applicant's complaints

12 The Commission has raised an objection of inadmissibility regarding Mr Plug's application for annulment of the implied decisions rejecting his complaints of 22 November 1980 and 20 January 1981, inasmuch as they merely confirm and form part of the contested decisions and do not, therefore, constitute separate measures which may be challenged.

i3 That objection is well founded. As the Court has pointed out in previous decisions and in particular in its judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner [1980] ECR 1677, every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged.

i4 In the present case, the implied decisions rejecting the applicant's complaints merely confirm previous decisions adopted by the Commission; accordingly, Mr Plug's application for their annulment must be dismissed as inadmissible.

(b) Substance

i7 That argument cannot be accepted. The contraa concluded on 22 August 1981 differs substantially from the previous contraa. The new contract contains a series of amendments regarding fundamental terms such as the duration of the contract, which became indefinite, the transfer of the post from budget heading A 3 to budget heading A 5/4 ACP/temporary and, finally, the aaual purpose of the employment relationship inasmuch as the applicant was recruited as a principal administrator in Grade A 4. The applicant must have been aware of the description of duties and responsibilities corresponding to each basic post and could not therefore expect to be entrusted with the same duties as those which he had performed under his previous contract.

2i That argument cannot be accepted either. The reference to Article 25 of the Staff Regulations is not relevant since that provision is concerned with the defence of officials against the acts of third parties and not against acts emanating from the institution itself (judgment of 25 March 1982 in Case 98/81 Munk [1982] ECR 1169). The Commission's duty to provide for the welfare of its officials reflects, according to the case-law of the Court, the balance of the reciprocal rights and obligations established by the Staff Regu- lations in the relationship between the official authority and the civil servants (judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner cited above). In the present case, that balance has not been upset by the Commission's decision.

22 The applicant's first claim must therefore be rejected.

2. Second claim

23 Secondly, the applicant seeks annulment of the decision redefining his responsibilities, contained in the note of 9 January 1981 from the Director General for Development, and of the decision withdrawing his accreditation to the international organizations in Geneva.

JUDGMENT OF 9. 12. 1982 — CASE 191/81

24 The applicant considers that the decision contained in the aforementioned note assigning new, more restricted duties to him is unlawful inasmuch as it is a decision adversely affecting him and should therefore, in accordance with the combined provisions of Article 11 of the Conditions of Employment and the second paragraph of Article 25 of the Staff Regulations, have stated the grounds on which it was based.

28 It follows that the applicant's second claim must also be rejected.

PLUG v COMMISSION

3. Third cUirn

29 Thirdly, the applicant claims compensation for damage resulting from the Commission's decisions which are in his view unlawful. Since the legality of those decisions has been upheld, it is unnecessary to consider this claim.

JO The application must therefore be dismissed in its entirety.

Costs

O'Keeffe Bosco Koópmans

Delivered in open court in Luxembourg ori 9 December 1982.

P. Heim- A. O'Keeffe Registrar President of the First Chamber