C-148/82

JUDGMENT OF 28. 9. 1983 — CASE 148/82

the same grade. Officials whom the qualify for consideration. They must Commission has decided to retire do however have an adequate oppor­ not enjoy any preference in that tunity properly to safeguard their respect over the other officials who interests.

In Case 148/82

JEAN-CLAUDE RENAUD, a former official of the Commission of the European Communities, residing at 133 Avenue Marie-Josée, 1200 Brussels, 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 Hendrik van Lier, a member of its Legal Department, acting as Agent, assisted by Robert Andersen of the Brussels Bar, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean . Monnet Building, Kirchberg, defendant,

JUDGMENT

Facts and Issues

I — Facts and written procedure another post in his grade in the Commission. The President of the Commission replied by letter of 24 June 1981 confirming the commission's intention to retire him but assuring him that the Commission would give careful consideration to his observations and The applicant is an arts and law graduate would consider the possibility of and has a degree awarded by the Ecole assigning him to another post in his Nationale d'Administration; he is on grade. The Commission nevertheless unpaid leave from the French ad­ decided on 8 July 1981 to apply Ar­ ministration. He took up his duties at the ticle 50 of the Staff Regulations. The Commission on 1 September 1977 as an applicant was retired in the interests of official in Grade A 2, as a chief adviser the service with effect from .1 November in the Directorate General for Energy 1981. He was not assigned to another post in his category corresponding to his (DG XVII). His duties related essentially grade and he therefore received the to international energy problems and benefits payable in such cases. bilateral and multilateral negotiations.

Ill — Submissions and argu­ The applicant claims that the Court ments of the parties should:

A — The decision to retire the applicant A. Primarily:

1. Annul the defendant's decision of According to the applicant, the decision 8 July 1981 retiring the applicant; retiring him does not state sufficiently, in the prescribed manner, the grounds on which it is based. The justification for 2. Annul the implied decision the decision retiring him was worded as rejecting the complaint which was follows:, " The Commission has decided, lodged in that behalf on 14 Oc­ as part of a general internal reorgan­ tober 1981; ization, to dispense with certain posts of chief adviser," including that held by Mr B. In the alternative: Renaud ..." That statement is entirely general and contains no specific details. 3. Annul the defendant's decision not The contested decision erroneously to assign the applicant to another indicates that in its letter of 24 June 1981 post in his category corresponding the Commission told the applicant of the to his grade and, more particu­ reasons for the envisaged measure. In larly, not to assign him to the post that letter no details were given, only of director of Directorate D in generalities once again. The applicant Directorate General I for External refers to the judgment of the Court of Relations; 11 May 1978 in Case 34/77 Oslizlok [1978] ECR 1099, paragraph 18 of the 4. Annul the defendant's decision decision. whereby, after the applicant had been retired, the posts in his The applicant also accuses the defendant category corresponding to his of misuse of powers. The contested grade were filled and, more par­ decision was adopted within the ticularly, the defendant's decision framework of a generalized application whereby the post of Director of of Article 50 of the Staff Regulations, Directorate D in Directorate the purpose of which is to create General I for External Relations vacancies. The only reasons which can was filled; justify retirement pursuant to Article 50

of the Staff Regulations are those based posts of chief adviser no longer fulfil a on the objective requirements of the genuine requirement of the service, it is service or on an assessment of the entitled to abolish them by recourse, to individual qualities of officials in the the procedure under Article 50 of the light of those requirements. Article 50 Staff Regulations. The Commission of the Staff Regulations calls for a considered that it was important to scrupulous examination of each reorganize Directorate General XVIII in individual case and cannot be relied order to adapt it to the new upon for an operation akin to the requirements. At its meeting of 15 July American "spoils system", where a 1981 the Commission confirmed the change of the President entails a shuffle proposals of Messrs Davignon and of the senior officials. It is contrary to O'Kennedy to create a new Directorate the principles governing the European E for Energy Saving and Alternative Civil Service, the career system and Energy Sources, Electricity and Heat stability of employment, even though and, in view of the transfers to the new that stability may not be absolute for an directorate with regard to alternative official in Grade Al or A 2. If, in the energy sources, to re-name Directorate applicant's case, there really was an D as the Directorate for Nuclear Energy objective requirement of the service and to put in charge of it Mr Caccia justifying his retirement, the Commission Dominioni who would be transferred, could have abolished that post but with his post, from Directorate General appointed the applicant to one of the XII to Directorate General XVII.

In its judgment in that obligation to give more details and in case, the Court emphasized the particular is not required to explain why considerable discretionary power vested it decided to dispense with some posts of in the Commission. The Commission is chief adviser and to retain certain other under an obligation scrupulously to posts. examine the circumstances of. the case and to give the official a prior oppor tunity properly to defend his interests. Even if there was no formal requirement for the decision retiring him to state the The Commission defends its right to grounds on which is was based, the adopt a series of individual measures applicant was nevertheless aware of the retiring officials in the interests of the reasons which induced the Commission service, provided that none of such to consider retiring him. Those reasons measures is in itself in any way vitiated. are apparent from the letters of 4 May It does not dispute the fact that the

JUDGMENT OF 28. 9. 1983 — CASE 148/82

The The Commission is entitled to dispense Commission draws a distinction between with the applicant's post of chief adviser its decision of 8 July 1981 to retire the without previously transferring him to applicant and its decision of 15 July 1981 another post as director. which does not relate to the abolition of the applicant's post, a matter which was already settled, but had a wholly The applicant refers to an information different purpose: it was concerned with bulletin issued by the Staff Committee in reorganization of the Directorate Brussels and an extract from the Staff General for Energy.

belonged. The statement of the reasons was induced to dispense with the on which the retiremend decision of 8 applicant's post rather than some other July 1981 was based is incorrect, to say post is simple: the Commission the least, in so far as it states that the considered that the post was Commission had decided, within the unnecessary. framework of a general internal reorgan ization, to dispense with certain posts. B — The decision not to assign the applicant to another post The allegations contained in the application regarding the generalized application of Article 50 of the Staff The applicant objects to the fact that he Regulations in order to create vacancies, was not assigned to another post the decision to dismiss officials on the corresponding to his grade even though pretext of retiring them and the lists of he possessed all the necessary abilities for victims prepared on an a priori basis, other vacant posts corresponding to his

The decision not to reassign an official The applicant submitted his application to another post in the same grade does for the post of director of Directorate D not formally have to state the grounds in Directorate General I for External upon which it is based. According to the Relations. His suitability for that post Court's decision in Oslizlok, there are is unequivocally apparent from his considerations specific to a decision not application. That post as director was to reassign an official which are distinct filled by promotion of an A 3 official. from those giving rise to the decision to Even if it were admitted that that official retire him. The advisory committee on had the same abilities as the applicant for appointments to Grades A 2 and A 3 the performance of the duties attaching considered that the applications of the to that post, preference should have been applicant and of Messrs Beseler and given to the applicant. The latter Exintaris in particular should be con­ maintains that an official in Grade A 2 sidered. After undertaking a comparative who is retired must be assigned to a examination of the merits of the cand­ vacant A 2 post for which he has the idates, the Commission decided to give required capabilities in preference to an preference to the application of Mr official in Grade A 3. Beseler who was head of the division entitled "Instruments of Autonomous and Conventional Policy; Dumping, Countervailing Duties and Safeguard Measures; Article 115 of the EEC As regards the Commission's decision to Treaty; and General Questions", by fill a post in Directorate General I, the reason of his profound and specific applicant criticizes the absence of any experience on the problems of Direc­ statement of the grounds on which it was torate D in Directorate General I. The based. As regards the post in Directorate Commission rejects the view that the General XVII, the applicant criticizes the applicant had a preferential right to be fact that the Commission did not on its reassigned to that post and considers that

According to the Commission, the advisory committee makes a preliminary selection by rejecting all applications other than those of candidates who fulfil The applicant insists that he had all the the minimum conditions required for required skills for the post of director of appointment to the post. It puts forward Directorate DG-I-D and cites the a list of those candidates in alphabetical opinion of the advisory committee on order. The choice as between them is the appointments to Grades A 2 and A 3 to prerogative of the appointing authority. that effect. He also insists on the priority The Commission gives more extensive which must be given to re-employment information on' the qualifications of Mr of an A 2 official who is retired. Even Beseler who is the author of a work on though that priority may not be apparent dumping. It considered that Mr Beseler expressis verbis from the third paragraph was the best of the candidates who had of Article 50, it is inherent in the nature submitted applications. The alleged of things. Where there are two candi­ preferential right, if such a right exists, dates for one post, who have the same would in any case only be conceivable qualifications, for one of them non- for the purpose of choosing between two appointment involves dismissal whilst for candidates ex cequo. The considerations the other the only consequence of non- based on equity and stability of em­ appointment is that he is not promoted. ployment cannot take precedence over

RENAUD v COMMISSION

the overriding interests of the service. complaint on 28 May 1982, seeking Moreover, the Staff Regulations provide annulment of the decision on the part of for special treatment for officials in the appointing authority not to appoint Grades A 1 and A 2. him arid consequently for annulment of Scope of the action the decision whereby that post was filled.

observations of the applicant, the Commission decided on 8 July 1981 to retire him in the interests of the service with effect from 1 November 1981. Since the applicant had not been assigned to another post in his category corresponding to his grade, he received the allowance payable in such cases.

4 In support of his application for annulment, Mr Renaud claims that the grounds of that decision were not adequately stated and that it was moreover vitiated by misuse of powers. The statement of grounds was excessively general and devoid of any specific details. The decision retiring the applicant was adopted within the framework of a generalized application of Article 50 of the Staff Regulations intended to facilitate the replacement of senior officials when certain members of the Commission were changed, as occurs under the American "spoils system" where every change of President involves replacement of the senior officials. In this case the decision was in fact taken at a time when members of the Commission had just been reappointed or new appointments had just been made.

s It has been held by the Court (judgment of 11 May 1978 in case 34/77 Oslizlok v Commission [1978] ECR 1099) that the Commission has a wide discretionary power regarding decisions retiring officials in Grades Aland A 2 A power of that kind presupposes considerable freedom of decision regarding the objective requirements of the service and the assessment of the individual qualities of the officials concerned and also a scrupulous examination of the relevant information.

8 It is apparent from the documents published by the Commission that, following discussions within the Commission in September 1978, a group of five independent leading figures, presided over by the Ambassador Dirk Spierenburg, former Vice-President of the High Authority of the European Coal and Steel Community and former Permanent Representative of the Netherlands, was set up in January 1979 to examine the organization and functioning of the Commission. The group presented its report on 24 September 1979. It was widely publicized and was debated in the European Parliament. The third part of the report recommended certain changes in the administrative policy and organization of the Commission, including a reduction of the number of basic administrative units. The Commission accepted the principle of that reduction at a meeting held in October 1979. That meeting was followed by a statement to the Press by the President of the Commission, Mr Jenkins. The Commission also set up a working group under the chairmanship of Mr Ortoli which reported in March 1980.

9 These facts show that the internal reorganization of the Commission was thoroughly discussed over a long period and cannot be ascribed exclusively to the fact that new members of the Commission had been appointed. The fact that a relatively high number of senior officials were thus retired at the same time as the applicant does not, in itself, constitute a misuse of powers. Therefore, in the absence of any other evidence to support the applicant's allegations, the accusation of misuse of powers must be rejected.

H It is apparent from the documents before the Court that the Commission gave the applicant an adequate opportunity properly to safeguard his interests by bringing to his notice the existence of posts which become vacant, including that of director in Directorate General I and of director in Directorate General XVII, and that the applicant applied for the first of those two posts. In order to fill that post, the Commission considered and compared the various candidates and chose to appoint a person other than the applicant to the vacant post. That decision was therefore taken in accordance with the applicable rules of the Staff Regulations. As regards the post in Directorate General XVII, the applicant himself did not consider it appropriate to submit an application and therefore the Commission did not have to consider him.

is Therefore, the applicant's alternative claim for annulment of the decision not to assign him to another post must also be rejected. For the same reason, there are no grounds for annulling the decisions of the Commission which have been adopted in the meantime in order to fill the vacant posts.

RENAUD v COMMISSION

Costs

i6 Under Article 69 (2) of the Rules of Procedure, an unsuccessful party is to be ordered to pay the costs.

17 However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions must bear their own costs.

Delivered in open court in Luxembourg on 28 September 1983.

For the Registrar

H. A. Rühi U. Everling Principal Administrator President of the Third Chamber