61980J0178

1 . OFFICIALS - APPLICATION TO THE COURT - REQUEST WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS - CONCEPT

( STAFF REGULATIONS , ART . 90 ( 1 ))

2 . OFFICIALS - EQUAL TREATMENT - IDENTICAL CONDITIONS OF RECRUITMENT AND CAREER - LIMITS - ORGANIZATION OF DEPARTMENTS - ADMINISTRATION ' S DISCRETION

( STAFF REGULATIONS , ART . 5 ( 3 ))

3 . OFFICIALS - ADMINISTRATION ' S DUTY TO ASSIST - SCOPE

( STAFF REGULATIONS , ART . 24 )

1 . EVEN IF A WRITTEN REQUEST DOES NOT EXPRESSLY REFER TO ARTICLE 90 OF THE STAFF REGULATIONS AND CONTAINS NO EXPRESSION TO THAT EFFECT , IT MAY AMOUNT TO A REQUEST THEREUNDER IF IT INVITES THE APPOINTING AUTHORITY TO ADOPT A DECISION .

2 . THE CONDITIONS OF RECRUITMENT AND CAREER IN THE SERVICE REFERRED TO IN ARTICLE 5 ( 3 ) CANNOT BE CONSIDERED OUTSIDE THE FRAMEWORK DETERMINED BY THE ORGANIZATION OF THE DEPARTMENTS . ALTHOUGH THAT PROVISION REQUIRES THE COMMUNITY ADMINISTRATION TO RESPECT THE EQUALITY OF OFFICIALS , IN THE VARIOUS CATEGORIES , WITH REGARD TO THE CON- DITIONS GOVERNING RECRUITMENT AND PROMOTION , IT DOES NOT RESTRICT THE FREEDOM OF THE INSTITUTIONS TO ORGANIZE THE VARIOUS ADMINISTRATIVE UNITS TAKING ACCOUNT OF A WHOLE RANGE OF FACTORS , SUCH AS THE NATURE AND SCOPE OF THE TASKS WHICH ARE ASSIGNED TO THEM AND THE BUDGETARY POSSI- BILITIES . IT FOLLOWS THAT THE ADMINIS- TRATION HAS NO OBLIGATION WITH REGARD TO AN OFFICIAL TO ORGANIZE THE DEPART- MENT IN WHICH HE IS EMPLOYED SO AS TO GUARANTEE HIM AN OPPORTUNITY TO PERFORM CERTAIN DUTIES AND OBTAIN PROMOTION AS A RESULT .

3 . THE OBLIGATION TO PROVIDE ASSISTANCE LAID DOWN BY ARTICLE 24 OF THE STAFF REGULATIONS IS CONCERNED WITH THE DEFENCE OF OFFICIALS BY THE INSTITUTIONS AGAINST THE ACTS OF THIRD PARTIES AND NOT AGAINST THE ACTS OF THE INSTITUTION ITSELF , THE REVIEW OF WHICH IS GOVERNED BY OTHER PROVISIONS OF THE STAFF REGULATIONS .

IN CASE 178/80

AMEDEO BELLARDI-RICCI , DICK KLEYMANS , JACQUES GOETSCHALKX , STEFAN BAUER , EVA RITTWEGER , TRANSLATORS IN THE MEDIUM AND LONG-TERM TRANSLATION DIVISION OF THE COMMISSION , REPRESENTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID VICTOR BIEL , 18A RUE DES GLACIS ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN , OF THE BRUSSELS BAR , 214 AVENUE MONTJOIE , BRUSSELS 1180 WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION CHALLENGING THE PRESENT ORGANIZATION OF THE MEDIUM AND LONG-TERM TRANSLATION DIVISION AND THE IMPLIED REFUSAL OF THE COMMISSION TO REORGANIZE THAT DIVISION BY REGRADING THE POSTS SO AS TO CONVERT THE PRESENT SECTIONS INTO DIVISIONS ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 16 AUGUST 1980 A . BELLARDI-RICCI , D . KLEYMANS , J . GOETSCHALKX , S . BAUER AND E . RITTWEGER , OFFICIALS IN GRADES L/A 3 OR L/A 4 IN THE COMMISSION ' S MEDIUM AND LONG-TERM TRANSLATION DIVISION IN LUXEMBOURG , BROUGHT AN ACTION AGAINST THE COMMISSION ' S IMPLIED REFUSAL TO REORGANIZE THE SAID DIVISION BY CONVERTING THE PRESENT SECTIONS INTO DIVISIONS AND REGRADING THE POSTS OF HEAD OF SECTION INTO POSTS OF HEAD OF DIVISION IN GRADE L/A 3 .

2 IT SHOULD BE NOTED THAT WITH A VIEW TO CARRYING OUT SUCH REORGANIZATION THE COMMISSION CREATED THREE POSTS IN GRADE L/A 3 , DESCRIBED AS POSTS OF ' ' ADVISER ' ' , AND ALLOCATED THEM TO THREE OF THE APPLICANTS . THE APPLICANTS DID NOT CONSIDER THAT MEASURE TO BE SUFFICIENT AND SENT THE PRESIDENT OF THE COMMISSION A JOINT LETTER DATED 12 JULY 1978 WHICH WAS REGISTERED AT THE SECRETARIAT-GENERAL OF THE COMMISSION AS A REQUEST WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS .

3 BY LETTERS DATED 21 JUNE 1979 , REGISTERED AT THE SECRETARIAT-GENERAL OF THE COMMISSION ON 22 JUNE 1979 , THE APPLICANTS , ACTING INDIVIDUALLY , SUBMITTED REQUESTS UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS INVITING THE COMMISSION TO TAKE ALL THE ADMINISTRATIVE AND BUDGETARY MEASURES NECESSARY TO CONVERT THE POSTS OF HEAD OF SECTION INTO L/A 3 POSTS OF HEAD OF DIVISION . BY LETTER DATED 17 JANUARY 1980 , REGISTERED ON 21 JANUARY 1980 , THEY LODGED A COMPLAINT WITH THE APPOINTING AUTHORITY UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE IMPLIED REJECTION OF THEIR REQUESTS .

ADMISSIBILITY

4 THE COMMISSION SUBMITS THAT THE ACTION IS INADMISSIBLE ON TWO GROUNDS .

5 IN THE FIRST PLACE , IT CONTENDS THAT THE LETTER WHICH THE APPLICANTS AND THE OTHER HEADS OF SECTION IN THE MEDIUM AND LONG-TERM TRANSLATION DIVISION SENT TO THE PRESIDENT OF THE COMMISSION ON 12 JULY 1978 WITH A VIEW TO OBTAINING THEIR REGRADING IN L/A 3 WAS A REQUEST UNDER ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS AND ITS REGISTRATION ON 7 SEPTEMBER 1978 SET IN MOTION THE PERIOD OF FOUR MONTHS REFERRED TO IN ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS WHICH DETERMINES THE SUBSEQUENT PERIODS LAID DOWN BY ARTICLE 90 ( 2 ). THE COMMISSION SUBMITS THAT SINCE THOSE PERIODS HAVE EXPIRED THE APPLICATION IS OUT OF TIME AS REGARDS THE APPLICANTS ' INDIVIDUAL REQUESTS , WHICH HAVE THE SAME SUBJECT-MATTER AS THE JOINT REQUEST OF 12 JULY 1978 .

6 THE SECOND GROUND OF INADMISSIBILITY PLEADED BY THE COMMISSION IS BASED ON THE FACT THAT THE APPLICATION WAS REGISTERED AT THE COURT REGISTRY ON 18 AUGUST 1980 , WHEREAS IT OUGHT TO HAVE BEEN LODGED AT THE LATEST ON 17 AUGUST 1980 .

7 AS REGARDS THE FIRST GROUND OF INADMISSIBILITY , THE APPLICANTS CONTEND THAT SINCE THE LETTER OF 12 JULY 1978 DID NOT USE THE SPECIAL DISPATCH NOTE PROVIDED FOR THAT PURPOSE UNDER THE INTERNAL REGULATIONS OF THE COMMISSION AND SINCE MOREOVER IT DID NOT CONTAIN EITHER THE WORD ' ' REQUEST ' ' OR ANY EQUIVALENT EXPRESSION , IT CANNOT BE CLASSIFIED AS A REQUEST WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS . IT IS SIMPLY ONE LETTER IN THE COURSE OF THE CORRESPONDENCE WITH THE COMMISSION . THEREFORE , ACCORDING TO THE APPLICANTS , THE LIMITATION PERIOD MUST BE DEEMED TO HAVE STARTED TO RUN ON 22 JUNE 1979 WHEN THE INDIVIDUAL REQUESTS SUBMITTED BY THE APPLICANTS WERE REGISTERED .

8 AS REGARDS THE SECOND GROUND OF INADMISSIBILITY , THE APPLICANTS OBSERVE THAT THEIR APPLICATION WAS IN FACT LODGED ON 16 AUGUST 1980 AND REGISTERED ON 18 AUGUST WITH THE REMARK ' ' RECEIVED 16 AUGUST 1980 ' ' , WHICH IS , MOREOVER , ADMITTED BY THE COMMISSION . THEY THEREFORE SUBMIT THAT THEIR ACTION IS ADMISSIBLE AS BEING BROUGHT WITHIN THE LIMITATION PERIOD WHICH EXPIRED ON 17 AUGUST 1980 . THEY ALSO OBSERVE THAT , ACCORDING TO ARTICLE 80 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT , WHERE THE PERIOD FOR BRINGING AN ACTION WOULD OTHERWISE END ON A SUNDAY OR ON AN OFFICIAL HOLIDAY , IT IS EXTENDED UNTIL THE END OF THE FIRST FOLLOWING WORKING DAY AND CONSEQUENTLY THE ACTION WOULD HAVE BEEN ADMISSIBLE EVEN IF BROUGHT ON MONDAY 18 AUGUST 1980 .

9 AS REGARDS THE FIRST SUBMISSION OF INADMISSIBILITY , IT MUST BE AFFIRMED THAT EVEN IF A WRITTEN REQUEST DOES NOT EXPRESSLY REFER TO ARTICLE 90 OF THE STAFF REGULATIONS AND CONTAINS NO EXPRESSION TO THAT EFFECT , IT MAY AMOUNT TO A REQUEST THEREUNDER IF IT INVITES THE APPOINTING AUTHORITY TO ADOPT A DECISION .

10 NEVERTHELESS , IT MUST BE OBSERVED IN THE CIRCUMSTANCES OF THE PRESENT CASE THAT THE LETTER OF 12 JULY 1978 CANNOT BE CONSIDERED OUTSIDE THE CONTEXT CONSTITUTED BY THE EXCHANGE OF CORRESPONDENCE OVER A NUMBER OF YEARS BETWEEN THE VARIOUS PERSONS CONCERNED IN THE MEDIUM AND LONG-TERM TRANSLATION DIVISION AND SUCCESSIVE PRESIDENTS OF THE COMMISSION . IN ACCORDANCE WITH ITS CONTENT , THE LETTER OF 12 JULY 1978 MUST BE REGARDED AS BELONGING TO THE SERIES OF SUCCESSIVE COMMUNICATIONS INTENDED TO URGE THE COMMISSION TO REORGANIZE THE DIVISION IN THE MANNER DESIRED BY THE APPLICANTS AND NOT AS A REQUEST UNDER ARTICLE 90 OF THE STAFF REGULATIONS .

11 IT MUST ALSO BE OBSERVED THAT ONE OF THE APPLICANTS IN THE PRESENT ACTION DID NOT SIGN THE LETTER OF 12 JULY 1978 , SO THAT EVEN IF THAT LETTER WERE TO BE REGARDED AS A REQUEST WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS THE ACTION WOULD STILL BE ADMISSIBLE AS FAR AS HE IS CONCERNED AND THE SUBSTANCE WOULD IN ANY EVENT HAVE TO BE CONSIDERED .

12 IT FOLLOWS THAT THE FIRST SUBMISSION OF INADMISSIBILITY PLEADED BY THE COMMISSION MUST BE REJECTED AND SINCE THE SECOND SUBMISSION HAS NO FACTUAL FOUNDATION THE ACTION MUST BE HELD TO BE ADMISSIBLE .

SUBSTANCE

13 THE APPLICANTS CONTEND THAT THE COMMISSION ' S REFUSAL TO REORGANIZE THE DIVISION INFRINGES ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS WHICH PROVIDES THAT IDENTICAL CONDITIONS AS REGARDS CAREER IN THE SERVICE ARE TO APPLY TO ALL OFFICIALS BELONGING TO THE SAME CATEGORY OR THE SAME SERVICE .

14 THEY ALSO COMPLAIN THAT THE COMMISSION HAS DISREGARDED THE PRINCIPLES OF NON-DISCRIMINATION AND EQUAL TREATMENT OF OFFICIALS BECAUSE A LOWERING IN THE SELECTION CRITERIA FOR THE DEPARTMENT IN BRUSSELS IN RELATION TO THE CRITERIA FOR RECRUITMENT APPLICABLE WHEN THEY WERE APPOINTED AS HEADS OF SECTION MEANS THAT THE CONDITIONS OF RECRUITMENT VARY FROM ONE PLACE OF EMPLOYMENT TO ANOTHER , SO THAT MAINTENANCE OF THE PRESENT STRUCTURE OF THE DEPARTMENT IN LUXEMBOURG HAS LED TO A DEGRADING OF THEIR POSTS WHICH THE REORGANIZATION SOUGHT WOULD COUNTERACT .

15 THEY OBSERVE THAT ACCORDING TO THE CASE-LAW OF THE COURT THE DISCRETION ENJOYED BY THE INSTITUTIONS AS REGARDS THEIR INTERNAL ORGANIZATION IS SUBJECT TO A RESERVATION CONCERNING THE PROTECTION OF OFFICIALS ' RIGHTS UNDER THE STAFF REGULATIONS AND THAT SIMILAR DEPARTMENTS MAY BE ORGANIZED DIFFERENTLY ONLY IF THEY BELONG TO DIFFERENT INSTITUTIONS AND NOT IF THEY BELONG TO THE SAME INSTITUTION .

16 FURTHER , THE APPLICANTS RELY ON THE COMMISSION ' S DECISION WHICH TOOK EFFECT ON 4 MAY 1978 ' ' AMENDING JOB DESCRIPTIONS FOR BASIC POSTS IN THE LANGUAGE SERVICE LISTED IN ANNEX I-A TO THE STAFF REGULATIONS ' ' , ACCORDING TO WHICH ' ' ADVISERS ' ' ARE PLACED UNDER THE AUTHORITY OF A DIRECTOR-GENERAL OR A DIRECTOR . IT IS SAID THAT THE COMMISSION HAS DISREGARDED THAT DECISION BECAUSE , BY ITS REFUSAL TO REORGANIZE THEIR DEPARTMENT , THOSE OF THE APPLICANTS WHO HAVE BEEN APPOINTED ' ' ADVISERS ' ' HAVE CHANGED NEITHER THEIR DUTIES NOR THEIR POSTING AND CONTINUE TO PERFORM THEIR DUTIES AS HEAD OF SECTION , AS IN THE PAST . MOREOVER , THEY ARE STILL RESPONSIBLE TO THEIR HEAD OF DIVISION , WHICH IS CONTRARY TO WHAT IS STATED IN THE AMENDING DECISION OF 4 MAY 1978 .

17 FINALLY , THE APPLICANTS COMPLAIN THAT THE COMMISSION HAS NOT FULFILLED ITS OBLIGATION TO ASSIST ITS OFFICIALS PURSUANT TO ARTICLE 24 OF THE STAFF REGULATIONS .

18 WITH REGARD TO THESE MATTERS , IT MUST BE POINTED OUT THAT , ALTHOUGH ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS PROVIDES THAT IDENTICAL CONDITIONS OF RECRUITMENT AND CAREER IN THE SERVICE ARE TO APPLY TO ALL OFFICIALS BELONGING TO THE SAME CATEGORY OR THE SAME SERVICE , ARTICLE 4 OF THE STAFF REGULATIONS PROVIDES THAT NO APPOINTMENT OR PROMOTION SHALL BE MADE FOR ANY PURPOSE OTHER THAN THAT OF FILLING A VACANT POST AS PROVIDED FOR IN THE STAFF REGULATIONS .

19 THE CONDITIONS OF RECRUITMENT AND CAREER IN THE SERVICE REFERRED TO IN ARTICLE 5 ( 3 ) CANNOT BE CONSIDERED OUTSIDE THE FRAMEWORK DETERMINED BY THE ORGANIZATION OF THE DEPARTMENTS . ALTHOUGH THAT PROVISION REQUIRES THE COMMUNITY ADMINISTRATION TO RESPECT THE EQUALITY OF OFFICIALS , IN THE VARIOUS CATEGORIES , WITH REGARD TO THE CONDITIONS GOVERNING RECRUITMENT AND PROMOTION , IT DOES NOT RESTRICT THE FREEDOM OF THE INSTITUTIONS TO ORGANIZE THE VARIOUS ADMINISTRATIVE UNITS TAKING ACCOUNT OF A WHOLE RANGE OF FACTORS , SUCH AS THE NATURE AND SCOPE OF THE TASKS WHICH ARE ASSIGNED TO THEM AND THE BUDGETARY POSSIBILITIES . IT FOLLOWS THAT THE COMMISSION HAS NO OBLIGATION WITH REGARD TO THE APPLICANTS TO ORGANIZE THE DEPARTMENT IN WHICH THEY ARE EMPLOYED SO AS TO GUARANTEE THEM AN OPPORTUNITY TO PERFORM CERTAIN DUTIES AND OBTAIN PROMOTION AS A RESULT .

20 THE APPLICANTS HAVE NOT BEEN ABLE TO SHOW THAT THE COMMISION HAS EXERCISED ITS POWERS OF ORGANIZATION , IN RELATION TO THE ADMINISTRATIVE UNIT IN WHICH THEY ARE EMPLOYED , FOR REASONS EXTRANEOUS TO THE INTERESTS OF THE SERVICE . IN PARTICULAR , THEY HAVE NOT BEEN ABLE TO SHOW THAT THE OPINION ARRIVED AT BY THE COMMISSION ON THE BASIS OF THE AMOUNT OF WORK AND STAFF IN THE TRANSLATION DEPARTMENT IN LUXEMBOURG IN RELATION TO THAT IN BRUSSELS EXCEEDS THE LIMITS OF THE DISCRETION WHICH THE COMMISSION HAS IN THE PRESENT CASE , EXPECIALLY AS , BY THE MEASURES ALREADY TAKEN IN FAVOUR OF THE DEPARTMENT IN LUXEMBOURG , THE COMMISSION HAS SHOWN ITSELF READY TO PROCEED GRADUALLY TO A REORGANIZATION IN THE DIRECTION DESIRED BY THE APPLICANTS , TAKING ACCOUNT OF THE EXISTING BUDGETARY CONSTRAINTS .

21 IN THIS RESPECT , THE COMMISSION CANNOT BE LEGALLY COMPELLED TO CARRY OUT THE REORGANIZATION IN QUESTION WITHIN A PARTICULAR PERIOD , EITHER ON THE BASIS OF A SPECIFIC RIGHT ON WHICH THE APPLICANTS MIGHT RELY UNDER THE STAFF REGULATIONS OR ON THE BASIS OF THE COMMISSION ' S OWN STATEMENTS REGARDING ITS INTENTION TO PROCEED WITH THAT REORGANIZATION .

22 AS REGARDS THE COMMISSION ' S ALLEGED INFRINGEMENT OF ITS DECISION OF 4 MAY 1978 IT MUST BE BORNE IN MIND THAT , BECAUSE THE POSTS IN QUESTION DO NOT APPEAR ON THE DETAILED LIST OF POSTS FOR THAT DEPARTMENT , THE DEFENDANT HAS NOT BEEN ABLE TO CONVERT THE TRANSLATION SECTIONS INTO DIVISIONS AND TO APPOINT HEADS OF DIVISION AT THEIR HEAD . IT CANNOT THEREFORE BE MAINTAINED THAT THOSE OF THE APPLICANTS WHO HAVE BEEN APPOINTED ADVISERS IN GRADE L/A 3 AT THE PRESENT STAGE OF LIMITED AND PARTIAL REORGANIZATION , AND WHO ARE STILL PERFORMING THE SAME DUTIES AS THEIR COLLEAGUES IN GRADE L/A 4 HAVE SUFFERED A DIMINUTION OF THEIR ADMINISTRATIVE POSITION BY THE MAINTENANCE , WITH REGARD TO THEM , OF THE HIERARCHY TO WHICH THOSE COLLEAGUES NECESSARILY REMAIN SUBJECT .

23 AS REGARDS THE OBLIGATION TO PROVIDE ASSISTANCE LAID DOWN BY ARTICLE 24 OF THE STAFF REGULATIONS , IT SUFFICES TO OBSERVE THAT THAT PROVISION IS CONCERNED WITH THE DEFENCE OF OFFICIALS BY THE INSTITUTION AGAINST THE ACTS OF THIRD PARTIES AND NOT AGAINST THE ACTS OF THE INSTITUTION ITSELF , THE REVIEW OF WHICH IS GOVERNED BY OTHER PROVISIONS OF THE STAFF REGULATIONS .

24 IT FOLLOWS THAT THE APPLICANTS ' ACTION MUST BE DISMISSED AS UNFOUNDED .

25 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

26 THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS .

27 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .