C-167/86
ECLI:EU:C:1987:529
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ROUSSEAU v COURT OF AUDITORS
O P I N I O N O F ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 8 December 1987
My Lords, allowance under Article 3 of Annex VI to the Staff Regulations.
Following Competition Notice No C C / D / 2 / 8 1 of 1 September 1981 relating to a post as chauffeur assigned to ('affecté On 25 November 1985 eight of the à') a Member of the Court of Auditors, Mr Members' drivers, including Mr Rousseau, Rousseau was, by a decision of 28 October protested that the decision taken was 1981, appointed in a probationary capacity contrary to the job description in the as a chauffeur in Grade D 3, Step 1, with competition notices under which they had assignment to ('affectation auprès') a been appointed and would deprive them of Member of that Court. With effect from 1 the fixed overtime allowance unless they May 1982 he became an established official were actually working as part of the office as a chauffeur with ('auprès') a Member of of a Member of the Court. Having been that Court. H e worked as a driver of a told in reply to that letter that the drivers Member of the Court and in that capacity could only submit individual communi- received a fixed overtime allowance in cations, Mr Rousseau on 13 December 1985 addition to his salary, pursuant to submitted to the President a document arrangements made under Article 3 of which is described as 'a request' and which Annex VI to the Staff Regulations. refers to Article 90 (1) of the Staff Regu- lations. Although there were subsequent oral discussions, there was no written reply and the request (or complaint if, as is alleged, such it was) was deemed to have been By Decision 85-12 of 16 September 1985 rejected by 13 April 1986. the Court of Auditors decided that all chauffeur posts would be attributed to the President's department ('secteur présidence') with effect from that date. On the same day the President of the Court adopted a decision changing Mr Rousseau's assign- Mr Rousseau then brought these ment ('affectation') with the Member of proceedings against the Court of Auditors the Court to the President's department for the annulment of with effect from 16 September 1985. On 18 September 1985 the President decided that Mr Rousseau was 'mis à dispo- sition . . . auprès du cabinet de [the same Member] . . . pour une période indéterminée ne pouvant en aucun cas excéder le mandat (i) Decision 85-12 adopted on 16 du Membre', with effect from 16 September September 1985 by the Court of 1985. Mr Rousseau continued without inter- Auditors assigning chauffeurs to the ruption to draw the fixed overtime President's department;
OPINION OF SIR GORDON SLYNN — CASE 167/86
(ii) The decision of the President of the remained the same and (c) he still receives Court of Auditors of 16 September the fixed allowance and will go on doing so 1985 deciding, pursuant to Decision as long as he drives a Member. Moreover, it 85-12, to assign Marc Rousseau to the is said that there never was a complaint President's department; under Article 90 (2) of the Staff Regu- lations, merely a request under Article 90 (1), so that by virtue of Article 91 (2) he cannot apply to this Court.
(iii) As far as necessary, the implied The first of these objections at times decision of the appointing authority confounds admissibility and substance — he rejecting the complaint lodged by the does not have to show that he is right as to applicant on 13 December 1985 under the substance before his action can be taken Article 90 (2) of the Staff Regulations. as admissible.
He contends that he cannot in law be moved from the post with a Member to His claims are put first on the basis that a post in the President's department there was a breach of the Staff Regulations. (apparently the department of the Court of H e was not moved to fill a vacant post, Auditors responsible for general adminis- contrary to Article 4. He was not assigned trative services) merely being allocated to within the meaning of Article 7 (1) because work for a Member for an indeterminate there was no appointment or transfer to a period which cannot be longer than the post. Therefore he cannot be deprived of mandate of the particular Member. Instead the fixed allowance to which, as a Member's of his appointment being as an established driver, he was entitled under the Member's driver with a right to fixed arrangements made pursuant to Annex VI. overtime (at any rate as long as that The change in his entitlement to that arrangement remains in being) he is now at allowance and the risk that it would be risk that the period during which he drives a removed if he ceased to work for a Member Member may be terminated and that he will is in violation of his acquired rights. lose the fixed overtime allowance.
These seem to me to be arguable matters which he is entitled to raise. It is not necessary for this purpose that he should The Court of Auditors replies first that the show that he has lost money to date (Cases proceedings are inadmissible. H e . has no 17/78 Deshormesv Commission [1979] ECR interest to protest since (a) he could always 189, at p. 197 and 7/77 Von Wüllerstorff be moved within the institution at its und Urhair v Commission [1978] ECR 769, discretion, (b) his functions have in fact at p. 779). If his legal arguments are right
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he has lost the certainty of the allowance think that it would be right to take too (and the advantage, as he may consider it, formalistic a view about this particular of driving one person rather than acting as document. The complaint he makes is set part of a pool). This case is quite different out in sufficient detail and (in the light of from Case 204/85 Stroghili v Court of decisions such as e. g. Case 30/68 Lacroix v Auditors [1987] ECR 389, where the alleged Commission [1970] ECR 301, at p. 309, loss or interest was far more remote. paragraph 4; Case 79/70 Müllers v Economic and Social Committee [1971] ECR 689, at p. 697, paragraph 15; judgment of 7 May 1986 in Case 191/84 Barcella Commission, ECR 1541, at p. 1552, paragraph 12; judgment of 27 October 1987 in Joined Cases 146 and 431/85 Diezler v Economic and Social I would reject the argument that he has not Committee, ECR 4283, at p. 4314, sufficient interest to bring these proceedings. paragraph 8; and in particular Case 54/77 Herpels v Commission [1978] ECR 585, at p. 600, paragraph 47: ' N o form is prescribed for complaints which must, as the Court has often stated, be interpreted and understood by the administration with all the care that a As to the form of his communication of 13 large and well-equipped organization owes December 1985, the Court of Auditors is to those having dealings with it, including right in saying that it does not refer to members of its staff) I would treat the note Article 90 (2) of the Staff Regulations, nor of 13 December 1985 as being a complaint, does it use the word 'complaint'. whether or not the collective drivers' note can be treated as severally a request by Mr Rousseau which was rejected by the Court of Auditors.
The document was, however, it seems, drafted by Mr Rousseau himself following I would accordingly reject the preliminary the (as I see it) incorrect statement that objections that these proceedings are inad- collective petitions or interventions could missible. not be made. If joint applications can be made to this Court (as they frequently are) I do not see why joint requests or complaints should not be made so long as individual interests are shown in the respective documents. In Case 69/83 (Lux v Court of Auditors [1984] ECR 2447, at p. 2463), the Court, following earlier cases, stressed that Community institutions 'have a broad discretion to organize their departments to suit the tasks entrusted to them and to assign the staff available to them in the light In the circumstances, since the relevant of such tasks, on condition however that the decisions had been taken and there seems staff are assigned in the interests of the little chance that a request to revoke them service and in conformity with the principle would have achieved anything, I do not of assignment to an equivalent post'.
OPINION OF SIR GORDON SLYNN — CASE 167/86
Despite this discretion the Court has the Staff Regulations do not expressly recognized that a balance has to be struck mention the term 'mis à disposition' save in between the interests of the service and the Article 37 in connection with the rights and interests of the official. Thus in secondment of an official to another Joined Cases 161 and 162/80 (Carbognani Community institution or organization, v Commission [1981] ECR 543, at p. 562), which is not the present case. It is thus not a the Court said, 'As recognized by the formal step provided for in the regulations Commission's own consistent practice, in the present context like 'transfer' or which is reflected in the disputed acts, 'assignment'. decisions re-assigning officials are subject in the same way as transfers, as regards safe- guarding the rights and legitimate interests of the officials concerned, to the provisions So long as Mr Rousseau's legitimate of Article 7 (1) of the Staff Regulations, interests and rights were not thereby inasmuch as officials may be re-assigned adversely affected, I do not see that this only in the interests of the service and in reorganization of itself gives him any compliance with the requirement that posts ground for complaint. The question is must correspond to the officials' grades'. whether such interests and rights were adversely affected.
In Joined Cases 33 and 75/79 (Kuhner v Commission [1980] ECR 1677, at p. 1697) If he had simply been appointed in the first the Court referred again to the balance place as a driver, but in fact allocated to between the rights of the official and the drive a Member, I would not consider that interests and rights of the institution. Thus: he could legitimately complain, other things 'A particular consequence of this balance is being equal, if he were then told that he that when the official authority takes a must undertake other driving duties, even if decision concerning the situation of an doing so involved his losing certain rights or official, in this case his assignment to a privileges which he had enjoyed as a specific post, it should take into Member's driver. consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the The notice of vacancy and the notice of individual concerned'. competition described the 'post' simply as 'Driver D 3/2' and specified driving a Member of the Court of Auditors under the rubric 'nature of duties'. The applicant here is right when he says that there was not an appointment or promotion or transfer to a vacant post within the meaning of Article 4, nor an The appointment, both as a probationer and 'assignment' to a post within the meaning of on establishment, seems to me, however, to Article 7, of the Staff Regulations. What run the two together. The decisions make it happened was that the post itself, as a clear that he was appointed in fact and in matter of reorganization, was transferred to law as a Member's driver and established in the President's department. There was no such a post. There may be, I do not know, longer a post attached to the office of a an advantage and a satisfaction to be gained particular Member. It must also be said that from driving one person rather than being
ROUSSEAU v COURT OF AUDITORS
available for any driving which is needed. posts or given other tasks than the ones That is one factor which distinguishes the which they have been doing, so long as they specific from the general job, though I do are not downgraded. The exceptional not attach overmuch weight to it. What feature of this case is that there was in being does, however, matter is that at the time of at all material times a fixed overtime appointment the Court of Auditors had allowance which was equal to one-third of already set up a system of fixed overtime the basic salary and which as a result of the allowances under Article 3 of Annex VI. Mr decisions taken has now become precarious Rousseau knew when he was appointed that in that it may or may not be paid according that allowance was a part of his to what job he is doing at the time. remuneration. His appointment was thus from the beginning to be a Member's driver and to be paid, in addition to his salary, the fixed overtime allowance.
Nor does this conclusion mean that Mr Rousseau is necessarily entitled to the fixed overtime allowance for ever. The matter has not been argued, so that only a provisional view should be stated, but it seems to me Transferring his post to the President's prima facie that if a fixed allowance is given department on the basis, stated in Decision pursuant to Article 3 of Annex VI it may 85-12, that it was convenient to provide for (pursuant to that provision) be given only the possibility of putting drivers 'tempo- for a period and then stopped. My rarily' and according to what was needed at conclusion in this case is no wider than that the disposal of Members, for a period not whilst the arrangements providing for the longer than their mandate, and that the fixed allowance are in operation for fixed allowance would only be paid whilst Members' drivers, Mr Rousseau is entitled the driver was actually available to a to the benefit of that allowance. Member ('mis à disposition auprès d'un membre') seems to me to take away his entitlement to be a Member's driver and to continue to receive the fixed overtime allowance. That in my view the Court of Auditors was not entitled to do in this case. They did not have sufficient regard to his rights and legitimate interests.
For my own part I do not think that the transfer for administrative reasons of the post from the Member's cabinet to the administration is necessarily bad so long as the driver appointed as a Member's driver carries out those functions on the terms applicable, though it may possibly be easier to leave the post with the Member's office. This conclusion is not inconsistent with the Converting a Member's driver, however, view that persons can be assigned to other into a driver who may from time to time
OPINION OF SIR GORDON SLYNN — CASE 167/86
and for a time be a Member's driver, but the drivers themselves and examples have who may well equally be told to do been given which it is said support the latter something quite different as a driver without justification (sed quaere). This may all be the fixed overtime allowance, in my view is relevant to the consideration as to whether a change of post and function outwith the the interests of the service justified the Court of Auditors' powers. changes made; it does not seem to me to cancel out any rights or legitimate interests It is suggested that this decision was taken which Mr Rousseau was entitled to have in the interests not only of the service but of respected.
This case may at first sight seem a storm in a teacup since Mr Rousseau has been paid and will go on being paid as long as he drives a Member. In my view, however, he is entitled to a declaration that the decisions taken in respect of him should be annulled. Because of the interaction of the various clauses in Decision N o 85-12 with each other, it seems to me more satisfactory to annul the whole of that decision together with the decision of 16 September 1985 assigning Mr Rousseau to the President's department. It will then be a matter for the Court of Auditors to consider what, if any, steps they should take. In the circumstances it seems to me unnecessary to annul the implied decision rejecting his complaint, but that Mr Rousseau should have his costs of these proceedings.