C-14/84

MARIE-REINE HANSEN, NÉE MEYER, an official of the Economic and Social Committee, represented by Marcel Slusny of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Avocat, Centre Louvigny, 34 B IV Rue Philippe-II,

applicant, v

THE ECONOMIC AND SOCIAL COMMITTEE, represented by Marius Simond, acting as Agent, with an address for service in Luxembourg at the Chambers of Mr Hamilius, Avocat-avoué, of the Luxembourg Bar, 11 Boulevard Royal, defendant,

APPLICATION for a declaration that the decision of the Secretary General of the Economic and Social Committee of 1 July 1983 transferring the applicant is void in so far as she is still designated in that decision as a secre- tarial assistant,

1 — Language of the Case: French.

JUDGMENT OF 13. 12. 1984 — CASE 14/84

The facts of the case, the course of (iii) the technical B stream (for officials the procedure, and the conclusions, engaged upon work of a technical submissions and arguments of the parties nature). may be summarized as follows: Accordingly, an examination of the structure of Category B in Section A of Annex I to the Staff Regulations, which I — Background sets out the basic posts and career brackets in each category and in the A — Preliminary considerations concern- language service, as provided for in ing the concept of "streams" or basic Article 5 (4) of the Staff Regulations posts in Category B reveals that Career Brackets B 2/B 3 and B 4/B 5 contain three types of post, namely administrative assistant, technical At the beginning of the seventies the assistant and secretarial assistant. Ac- Council, whose attention had been cording to footnote No 2 at the bottom drawn to the position of secretaries and of the page, the number of posts technical staff whose career was re- corresponding to those basic posts is stricted to Category C and who could be "exactly and specifically fixed" in the list promoted to Category B only by taking of posts appended to the budget for each part in competitions, decided to create institution. different "streams" within Category B: The distinction between the three types (i) the normal B stream (for officials of post has no effect with regard to the qualified to carry out administrative financial position of those concerned or and office duties) ; their status under the Staff Regulations. However, the career prospects of (ii) the secretarial B stream (for officials officials in the normal B stream are involved essentially in secretarial better since they seem to advance more work and typing) ; easily from Career Bracket B 4/B 5 to

Career Bracket B 2/B 3 and only then (which, according to the detailed list of can apply for promotion to Grade B 1. posts for 1982, did not yet have a post of administrative assistant at its disposal, It is that difference in career prospects unlike the other two groups), Mrs which lies at the heart of this dispute. Barbesta, an administrative assistant occupying a normal B post in the Mail/ Records/Library/Documentation De- partment (Division for the Registry of B — Facts of the Case the Assembly and the Bureau) was temporarily placed at that group's Mrs Hansen, who entered the service of disposal. the Economic and Social Committee as a typist in Grade C 5 on 4 June 1968, was It then became possible to move Mrs assigned on 11 November 1969, to Hansen from her post as a secretarial Division B of the Economic and Social assistant in Directorate A to the Mail/ Committee. From 1 June 1973 to Records/Library/Documentation De- 1 November 1978 she was assigned, as a partment. She was placed at the disposal secretary, to the Mail/Records/Library/ of the latter department by Decision No Documentation Department. 534/1 of 11 March 1982, which took effect on 15 March 1982. In 1978 she was appointed a principal secretary in Directorate A and advanced After the budgetary authorities had to Grade C 1. allocated a new post in the normal B stream to the Economic and Social In the meantime, she had successfully Committee and the latter had assigned it taken part in Competition No B/25/74, to the Secretariat of Group III, the organized in order to constitute a reserve Secretary-General of the Economic and of administrative assistants (normal B Social Committee wished to clarify a posts). situation which had become confused and made it impossible to assign anyone On 18 December 1979, in the absence of to the post of secretarial assistant in a normal B vacancy, she applied for a Directorate A. Therefore, according to post of secretarial assistant (a secretarial the Economic and Social Committee — B post) in the secretariat of Directorate whose version of the facts is challenged A. by the applicant — it was in order to bring the organizational plan (the list of posts) as closely as possible into line with She was appointed a secretarial assistant the existing state of affairs in the with effect from 1 February 1980 in interests of the service and having regard Grade B 5, Step 4. to Mrs Hansen's request for a permanent transfer from Directorate A, that the For reasons which are not entirely clear Secretary-General decided: and on which the parties have been unable to agree, the applicant requested (i) to amend the detailed list of posts in the Secretary-General on 12 June 1980 the general secretariat by Decision to transfer her to another department. No 306/83/A of 1 July 1983 by exchanging two posts, that is to say On 8 March 1982, at the request of the by classifying as a normal B 5/B 4 Chairman of Group III of the general post the secretarial B 5/B 4 post secretariat, who wished to ensure the allocated to Group III and, proper functioning of his secretariat conversely, by classifying as a secre-

tarial B 5/B 4 post the normal plicant brought an action against the B 5/B 4 post allocated to the Economic and Social Committee. Ac- Mail/Records/Library/Documenta- cording to her conclusions in their final tion Department; version, the applicant claims that the Court should : (ii) to assign Mrs Barbesta to the normal B 5/B 4 post thus allocated (i) declare that Decision N o 317/83/A to the secretariat of Group III of the Secretary-General of the (Decision N o 316/83/A of 1 July Economic and Social Committee of 1983); 1 July 1983 is void in so far as the applicant is still designated therein as a secretarial assistant, but without (iii) to transfer Mrs Hansen, in her calling in question the validity of the existing capacity as a secretarial transfer itself; assistant, to the secretarial B 5/ B 4 post now allocated to the Mail/Records/Library/Documenta- (ii) declare that the Economic and tion Department (Decision N o Social Committee must adopt the 317/83/A of 1 July 1983). measures needed to regularize her situation, namely by "specifying that the applicant is an administrative It is that decision which the applicant assistant in Career Bracket B 4/B 5 contests, but only in so far as she is in the normal B stream"; still designated therein as a secretarial assistant. She does not contest the (iii) declare void Decision N o 306/83/A transfer itself. of 1 July 1983 amending the de- tailed list of posts; A complaint submitted by the applicant on 18 July 1983 was rejected by the (iv) order the verification, by hearing Secretary-General on 11 October 1983. oral testimony, of a number of facts relating to the assignment of the Finally, the Economic and Social Com- applicant to the Records Depart- mittee's budget for 1984 made it possible ment; to allocate a normal B 5/B 4 post to the Mail / Records / Library / Documentation (v) order the defendant to submit a Department. In accordance with an number of documents, in particular undertaking given by the Secretary- those relating to the problems posed General, the applicant was appointed to by careers in the normal B stream that post as an administrative assistant (a and the secretarial B stream; normal B post) by a decision of 24 May 1984 which the Economic and Social (vi) order the Economic and Social Committee referred to for the first time Committee to pay the costs. in its rejoinder.

On hearing the report of the Judge- 2. Lack of an interest in bringing an Rapporteur and the views of the action Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, it re- (a) In the opinion of the Economic and quested the applicant and the Economic Social Committee, the applicant has no and Social Committee to reply to a interest in bringing an action; she has question before the hearing. always been a secretarial assistant (occupying a secretarial B post), she could be transferred in that capacity to the Mail/Records/Library/Documen- III — Submissions and argu- tation Department and she was not m e n t s of the p a r t i e s entitled to a normal B post. Moreover, her rights to promotion in the normal B stream are not affected by the contested decision, since it is still open to the A — Admissibility applicant in the course of her career to apply for any vacancy which may arise in that stream. The Economic and Social Committee raised three objections of inadmissibility. (b) The applicant maintains, on the contrary, that her interests were ad- 1. Action against an internal measure versely affected since she was eligible for which may not be contested appointment to a normal B post as an administrative assistant, that the reserve list on which she was placed, for future (a) According to the defendant, the recruitment in the normal B stream, is applicant is in fact calling in question the not of indefinite duration, that it will be detailed list of posts and the amendment possible to assess her only in her capacity thereof, in so far as she claims that the as a secretarial assistant and that her contested decision should be rectified career will not develop smoothly in the and that she should be appointed an normal B stream. According to the Court administrative assistant (in a normal B of Justice, an official is entitled to know post), which she has never been and in advance the significance of the factors which was impossible under the budget. which may influence his career.

(b) The applicant maintains that she (b) The Economic and Social Committee was under no obligation to lodge a recites the reasons justifying the complaint against a preliminary, tran- amendment of the detailed list of posts sitional measure which, as such, did not and states that by assigning the applicant adversely affect her. to a post of secretarial assistant which had fallen vacant in the Mail/Records/ Library/Documentation Department the Secretary General did not intend to B — Substance amend the nature of the duties pertaining to that department. Furthermore, as regards the starting grades in Category The applicant relied on four submissions B, a degree of "mobility" is necessary in support of her initial application. both in the interests of the service and in Subsequently, on the basis of Article 42 the interests of the officials themselves, (2) of the Rules of Procedure and having and the tasks of coordination in the regard to the fact that the Economic and operational directorates do not differ Social Committee produced a copy of substantially from those performed in the Decision No 306/83/A amending the Records Department. detailed list of posts, the applicant raised three further submissions in her reply. 2. The second submission is concerned with the alleged disregard of Vacancy 1. The first submission is concerned Notice N o 31/76 of 14 April 1976, with the alleged infringement of (i) the which described the duties attaching to Decision of the Bureau of 28 April 1964 the post of administrative assistant in and Decision No 657/74/A of the the Mail/Records/Library/Documen- Economic and Social Committee of 27 tation Department. March 1974 describing the duties and powers attaching to each post and, (ii) In support of this submission, the the second subparagraph of Article 5 (4) applicant relies on the same arguments as of the Staff Regulations. those put forward in support of her first submission and the defence pleaded by the Economic and Social Committee is (a) The applicant maintains that the also the same. duties assigned to her, as set out in the vacancy notice relating to the post occupied by her, are unquestionably those of an administrative assistant, not 3. The third submission is concerned of a secretarial assistant. with the alleged disregard of the organ- izational plan for 1983.

5. The fifth submission (first pleaded in 4. The fourth submission, put forward the reply) is concerned with the alleged in the alternative, is concerned with the infringement of Article 25 of the Staff alleged infringement of Article 7 (1) of Regulations the Staff Regulations, which provides that each official is to be assigned to a post in his category or service which (a) The applicant charges the Economic corresponds to his grade. and Social Committee with failing to publish, post or bring to her attention the decision of 1 July 1983 amending the detailed list of posts, which adversely (a) The applicant maintains that the affects her. normal B, technical B and secretarial B streams are in practice distinct categories and that in those circumstances there cannot be any mobility between them. (b) The Economic and Social Committee Accordingly, after successfully taking contends that the detailed list of posts in part in a normal B competition and being an institution, which is adopted in order assigned to a post of administrative to ensure the proper functioning of that assistant, she should have been accorded institution, does not constitute a decision the status of administrative asssistant, not relating to a specific individual within the that of secretarial assistant. Moreover, meaning of Article 25 of the Staff Regu- she was adversely affected by that lations and need not therefore be posting since the secretarial B stream published or posted. leads no further than to Career Bracket B 2/B 3, whilst the normal B stream leads to Grade B 1. 6. In her sixth submission (first pleaded in the reply) the applicant contends that the Secretary-General lacks the power to (b) In reply the Economic and Social amend the detailed list of posts. Committee states that the post in the Mail / Records / Library / Documentation Department corresponds to the appli- (a) The applicant maintains that the cant's category and grade, inasmuch as Secretary-General is empowered only to she is an official in Career Bracket adopt, in the interests of the service, B 5/B 4, and that the tasks entrusted to measures implementing the initial the applicant in that department do not decision laying down the detailed list of involve a greater degree of responsibility posts and that he cannot act for the than those formerly performed by her in Bureau of the Economic and Social the secretarial B 5/B 4 post. The ap- Committee, which alone has the power plicant's grade therefore corresponds to to adopt the organizational plan and to her post. Moreover, the normal B and amend it.

(b) In reply the Economic and Social IV — R e p l i e s given by t h e p a r t i e s Committee states that by Decision No to a q u e s t i o n from the 72/83/A of 23 February 1983 certain Court powers were delegated to the Secretary- General to amend the organization of the secretariat in the interests of the By a letter of 27 September 1984 the service. The Secretary-General did so Court requested the parties to reply within the limits of the powers conferred before the hearing to the following upon him by the Rules of Procedure and question : in particular by Article 57 thereof. "Does the decision of 24 May 1984 appointing Mrs Hansen an administrat- ive assistant (in a normal B post) satisfy 7. The seventh submission (first the applicant's claim in its entirety? If pleaded in the reply) is concerned with not, what precisely, since the adoption of an alleged misuse of powers vitiating all that decision, is the purpose of the the aforesaid decisions relating to the proceedings or, in other words, to what amendment of the detailed list of posts, extent does the applicant still have an Mrs Barbesta's secondment and the interest in continuing the proceedings applicant's transfer. after the adoption of the decision of 24 May 1984?" (a) The applicant contends that the By a letter of 12 October 1984 the voluntary renunciation by the Economic applicant replied as follows : and Social Committee of a post in the normal B stream, the measures adopted "(a) Since the decision in question was in relation to Mrs Barbesta, which can be adopted on 24 May 1984 and not explained by reference not to the on 1 July 1983, the date on which interests of the service but to a "policy Decision No 317/83/A was based on personalities", and the secrecy adopted, the applicant considers surrounding the measures adopted are that, in view of her interpretation of factors which point to a misuse of power. the lack of interpenetrability [sic] The applicant offers to call witnesses in between the normal B and the support of that contention. secretarial B streams, the minimum qualifying period for her promotion did not start to run until 24 May (b) The Economic and Social Committee 1984, instead of 1 July 1983. emphatically rejects that argument and stresses that all the decisions adopted (b) The decision of 24 May 1984 were taken in the interests of the service, contains an ambiguity which the having regard to the provisions adopted applicant has sought to remove by by the Bureau and to budgetary submitting a request to the ap- constraints, and that the applicant's pointing authority on 20 July 1984 contentions are factually incorrect. which has so far failed to evoke any response (Annex I)." At the same time, the Economic and Social Committee pointed out that as soon as a post became available under V — Oral procedure the budget the applicant was, by a decision of 24 May 1984, appointed an administrative assistant, that is to say she At the sitting on 25 October 1984 oral was assigned to a normal B post. argument was presented by the

(i) a declaration that Decision No 317/83/A of 1 July 1983 whereby the Secretary-General of the Economic and Social Committee transferred the applicant, in her existing capacity as a secretarial assistant, to a new secretarial B 5/B 4 post, allocated to the Mail/Records/Library/ Documentation Department, is void in so far as she is still designated in that decision as a secretarial assistant;

(ii) a declaration that Decision No 306/83/A of 1 July 1983 whereby the Secretary-General of the Economic and Social Committee amended the detailed list of posts in that institution is void;

JUDGMENT OF 13. 12. 1984 — CASE 14/84

(iii) a declaration that the Economic and Social Committee must adopt the measures needed to regularize the applicant's situation, namely by "specifying that the applicant is an administrative assistant in Career Bracket B 4/B 5 in the normal B grade".

2 An examination of Section A of Annex I to the Staff Regulations, which sets out the basic posts and career brackets in each category and in the language service, reveals that Career Brackets B 2/B 3 and B 4/B 5 contain three types of post, namely administrative assistant, technical assistant and secretarial assistant. Those types of post correspond to three different "streams" within Category B: the normal B stream, which is for officials qualified to carry out administrative and office work; the secretarial B stream, which is for officials involved essentially in secretarial work and typing; and finally the technical B stream, which is for officials engaged upon work of a technical nature.

The first decision, No 306/83/A, amended the detailed list of posts in the general secretariat by allocating a new secretarial B 5/B 4 post to the Mail/ Records/Library/Documentation Department, as a result of an exchange of posts;

The second decision, No 317/83/A, transferred Mrs Hansen, in her existing capacity as a secretarial assistant, to that new post.

7 It is those two decisions which are the subject-matter of these proceedings, the second decision only in so far as it maintains Mrs Hansen's designation as a secretarial assistant. The transfer itself is not contested.

8 Finally, in a decision of 24 May 1984, which was referred to by the Economic and Social Committee for the first time in its rejoinder, the Secretary-General took account of the fact that the Economic and Social Committee's budget for 1984 made it possible to allocate a new normal B 5/B 4 post to the Mail/Records/Library/Documentation Department and proceeded to appoint Mrs Hansen to that post as an administrative assistant, that is to say she was appointed to a normal B post.

T h e claim for a d e c l a r a t i o n t h a t D e c i s i o n N o 3 1 7 / 8 3 / A is void in so far as it m a i n t a i n s t h e a p p l i c a n t ' s d e s i g n a t i o n as a s e c - retarial assistant

9 After the adoption of the aforesaid decision of 24 May 1984, appointing her to a normal B post as an administrative assistant, the applicant maintained, both in her reply to a written question put to her by the Court and at the hearing, that she still had an interest in continuing the proceedings since that decision did not satisfy her claim in full for two reasons:

12 It follows that the claim for a declaration that Decision N o 306/83/A of 1 July 1983 amending, the detailed list of posts is void, which was put forward solely in order to obtain a declaration that Decision N o 317/83/A is void, has also become devoid of purpose. The same is true of the claim for a declaration that the Economic and Social Committee must adopt the measures needed to regularize the applicant's situation.

HANSEN-MEYER / ESC

Costs

13 Under Article 69 (5) of the Rules of Procedure, where it is not necessary to rule on a claim the costs are to be at the discretion of the Court.

1 4 It must be noted that the Economic and Social Committee did not reply in writing to the question put to it by the Court in order to ascertain whether the applicant still had an interest in continuing the proceedings after the adoption of the decision of 24 May 1984. The defendant answered that question only during the oral procedure. Since the applicant therefore remained uncertain whether she had an interest in continuing the proceedings, it is appropriate in the circumstances of this case to order the Economic and Social Committee to pay the costs.

On those grounds,

J. A. Pompe C. Kakouris Deputy Registrar President of the Third Chamber