C-299/82

JUDGMENT OF THE COURT (FIRST CHAMBER) 20 OCTOBER 1983 1

Horst W. Stemfort v Commission of the European Communities

(Official — Promotion)

Case 299/82

In Case 299/82

HORST W. STEINFORT, an official of the Commission of the European Communities resident in Luxembourg, represented by Victor Biel of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 18 A Rue des Glacis,

composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges,

Advocate General: G. F. Mancini Registrar: A. W. H. Meij, Legal Secretary

gives the following

1 — Language of the Case: French.

JUDGMENT OF 20. 10. 1983 — CASE 299/82

JUDGMENT

Promotion vers le grade A 5 : ..." 1 I — Facts and procedure In his letter the applicant maintained that the decision was intended to ensure that 1. The applicant, Horst W. Steinfort, an official who had performed the duties who was born on 1 February 1920, of Chef de Cabinet for a number of entered the employment of the years was not reinstated in his original Commission on 27 March 1961 in a department in a lower post than that Grade A 4 post. which he occupied while on secondment. He claimed that, having performed the From 9 September 1964 until 5 July 1967 duties of Chef de Cabinet to a member he was acting Chef de Cabinet to Mr of the EAEC Commission in an A 2 post, Margulies, a member of the Commission he was entitled to promotion to Grade of the European Atomic Energy Com­ A 2. Alternatively, he relied on the munity (the EAEC). During that time he principle of equal treatment. All Chefs de occupied a Grade A 2 post. On the Cabinet who remained with the Com­ departure of Mr Margulies he was mission when their secondment ended assigned to the Directorate-General for had been promoted to a grade at least Research in the EAEC, and from 1968 equivalent to that attaching to the post he was assigned as an official in Grade which they occupied while on second­ A3 to Directorate-General XIII, In­ ment. formation Market and Innovation, in Luxembourg. When the Commission did not reply- within the prescribed period the appli­ By letter dated 18 February 1982 the cant submitted by letter dated 24 June applicant submitted a request to the 1982 a complaint against the implied President of the Commission pursuant to decision to reject his request. Article 90 of the Staff Regulations for promotion to Grade A 2. In doing so By letter dated 9 November 1982 the he relied upon a Commission decision Commission rejected his complaint. In recorded in the minutes of a meeting on the letter it explained that the decision of 28 July 1981 to the following effect: 1 — Translator's note: the English language version reads: " 'A' officials promoted to another career bracket "Les fonctionnaires de la catégorie A qui during a period of secondment to a Member's Office sont promus à un poste d'une carrière shall rejoin the departments ' in which promotion is accorded them within 3 months in the case of différente pendant la période de déta­ promotion to A 1, A 2 or A3,or ... in the case of chement dans un Cabinet réintégreront promotion to A 5."

28 July 1981 was intended solely to Dismiss the application; specify the maximum period on the expiry of which the official who, while on secondment to a member's office, had Make an appropriate order as to.costs. been promoted to a post in a different career bracket must return to the depart­ ment where he had been promoted. In the Commission's view the interpretation Ill — Submissions and argu­ given by the applicant to the decision of ments 28 July 1981 was incompatible with the Staff Regulations. Article 4 of the Staff Regulations provided inter alia that no The applicant states first of all that the appointment or promotion may be made Commission's decision of 28 July 1981 for any purpose other than that of filling has never been published or brought to a vacant post. A necessary, but not a the attention of those concerned and that sufficient, condition for the applicant to he became aware of it only at the be promoted to Grade A 2 would be that beginning of 1982. he applied for a vacant post of that nature. He considers that the decision merely confirms a practice current for some years and its effects are therefore not 2. By application received at the Court restricted in time. It covers all second­ Registry on 1 December 1982 the ments to members' offices both in the applicant brought the present action. past and in the future. In the applicant's view he was entitled to promotion on his Upon hearing the report of the Judge- return to his normal employment in 1967 Rapporteur and the views of the but he seeks it only as from the date of Advocate General the Court (First his complaint. Chamber) decided to open the oral procedure without any preparatory enquiry. In the applicant's view the wording of the decision and in particular the words "où la promotion leur est assurée" can have no meaning other that to assure seconded Chefs de Cabinet of promotion II — Conclusions of the parties within three months after the expiry of their secondment. As for Article 4 of the Staff Regulations, to which the The applicant claims that the Court Commission refers in its letter rejecting should: the request, he states that it is for the Commission to find the means to honour Annul the rejection of his complaint; the assurances which it gives to its officials. Rule that the Commission must promote him to Grade A 2 with effect from the Moreover, according to the German text date of his complaint; of the letter rejecting the applicant's request, application for a vacant post is not "a necessary, but not a sufficient, Order the Commission to bear the costs. condition" for promotion but on the contrary "eine notwendige, aber hin­ The Commission contends that the Court reichende Voraussetzung" [a necessary, should: but sufficient condition], since the word

The decision cited by the applicant thus Alternatively, that is to say should the gives no right of promotion to officials application be dismissed as unfounded, seconded to members' offices. Any the Commission ought nevertheless to be undertaking to that effect would, ordered to pay all the costs, since the moreover, be incompatible with the Staff applicant has been led to bring an action Regulations. Furthermore, the fact that because of the error contained in the other staff have been promoted during or letter rejecting his request. shortly after their secondment to a member's office cannot constitute a breach of the principle of equal treat­ ment if such promotion has been made in The Commission observes that the accordance with the same objective rules decision of 28 July 1981 is merely of the Staff Regulations. concerned with the rapid reinstatement in their original departments of officials who have been seconded to a member's office and promoted in the meantime. It In the Commission's view the words "où refers to the note from the President of la promotion leur est assurée" used in the Commission and Commissioner the decision of 28 July 1981 must be O'Kennedy which was the basis of the understood as synonymous with "where decision. That note states inter alia: they have obtained promotion" or "where they have been promoted".

" On 20 June 1979 the Commission decided that officials in Grade A who As regards the letter rejecting the request are promoted while on secondment to a the Commission admits that the word Member's Office should be reinstated in " not " was omitted from the German in their department before a particular date the phrase " a necessary, but not a suf­ — within the following 12 months in the ficient, condition". It emphasizes never-

JUDGMENT OF 20. 10. 1983 — CASE 299/82

" On a proposal from the President and Mr O'Kennedy the Commission adopted the following decision:

1. 'A' officials promoted to another career bracket during a period of secondment to a Member's Office shall rejoin the departments in which promotion is accorded them" [... réintégreront leur service où la promotion leur est assurée ...] "within 3 months in the case of promotion to A 1, A 2 or A 3 or at the end of the Commission's term of office in the case of promotion to A 5.

2. In the case of promotions within the same career bracket and promotions to A 5 ..."

4 In the applicant's view the decision means that officials of Category A who are seconded to a member's office are entitled to promotion within a particular period after their reinstatement in their original department and that period is three months in the case of promotion to Grade A 2. That interpretation of the decision is confirmed by the clause "où la promotion leur est assurée" and in particular by the word "assurée" which would have no meaning if former staff of a member's office were not to be promoted.

5 In the view of the Commission the decision relates not to the right to promotion of officials who have been seconded to a member's office but to the period within which officials promoted while on secondment should be reinstated. That such is its purport, as appears inter alia from the wording of the decision and from the fact that it has never been published as being of a purely internal nature, is demonstrated by the note from the President of the Commission and from Mr O'Kennedy which was the basis of the decision.

Costs

9 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, in proceedings brought by staff of the Communities the institutions are to bear their own costs.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

OPINION OF MR ADVOCATE GENERAL MANCINI 1 DELIVERED ON 6 OCTOBER 1983

Mr President, Grade A 2. At the end of the secondment Members of the Court, he worked for the EAEC Directorate- General for Research and since 1968 when he was promoted to Grade A 3 he has worked in Directorate-General XIII, Information Market and Innovation. 1. The application of 1 December Į982 with which the present case was begun concerns a request for promotion to Grade A 2 made to the Commission of the European Communities by Horst W . Steinfort, an official thereof. By letter dated 18 February 1982 Mr Steinfort requested the President of 'the Commission to be promoted to Grade A 2. He based his request on the Let me summarize the facts. The Commission's decision relating to the applicant entered employment with the "Reinstatement on promotion of officials Commission on 27 March 1961 as a seconded to a Member's Office", Principal Administrator in Grade A 4. adopted on 28 July 1981 (Doc. From 9 September 1964 to 5 July 1967 COM(81) Min. 615). More precisly the he was seconded to perform the duties applicant referred to paragraph 1 thereof of Chef de Cabinet to Mr Margulies, which provides: "Les fonctionnaires de a member of the Commission of the la catégorie A qui sont promus à un EAEC, for which he held a post in poste d'une carrière différente pendant la

1 — Translated from the Italian.