61977J0025

1 . OFFICIALS - RECRUITMENT - VACANCY NOTICE - ACCESS TO THE POST - CONDITIONS - OFFICIALS ELIGIBLE FOR TRANSFER OR PROMOTION - CANDIDATURE EXCLUDED - ACT ADVERSELY AFFECTING AN OFFICIAL

( STAFF REGULATIONS OF OFFICIALS , ART . 29 ( 1 ) ( A ))

2 . OFFICIALS - DUTIES CORRESPONDING TO A HIGHER GRADE - ACCEPTANCE - RECLASSIFICATION - RIGHT - ABSENCE

( STAFF REGULATIONS OF OFFICIALS , ART . 7 )

1 . IN SO FAR AS THE EFFECT OF THE CONDITIONS GOVERNING ACCESS TO A POST , FIXED BY THE VACANCY NOTICE , IS TO RULE OUT THE CANDIDATURE OF OFFICIALS WHO ARE ELIGIBLE FOR TRANSFER OR PROMOTION , THE VACANCY NOTICE CONSTITUTES AN ACT ADVERSELY AFFECTING SUCH OFFICIALS .

2 . ALTHOUGH AN OFFICIAL CANNOT BE COMPELLED TO PERFORM DUTIES CORRESPONDING TO A GRADE HIGHER THAN HIS OWN , EXCEPT ON A TEMPORARY POSTING , THE FACT THAT HE AGREES TO PERFORM THEM MAY BE A FACTOR TO BE BORNE IN MIND IN CONNEXION WITH PROMOTION , BUT DOES NOT GIVE HIM THE RIGHT TO BE RECLASSIFIED .

IN CASE 25/77

LUCIENNE DE ROUBAIX , NEE DE LEYE , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 13 AVENUE DES CROIX DU FEU , 1020 BRUSSELS , REPRESENTED AND ASSISTED BY MARCEL GREGOIRE AND EDMOND LEBRUN , ADVOCATES AT THE COUR D ' APPEL , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , 83 BOULEVARD GRANDE- DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , ASSISTED BY DENISE SORASIO- ALLO , A MEMBER OF THE LEGAL DEPARTMENT OF THE COMMISSION , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF VACANCY NOTICE NO COM/267/76 RELATING TO A POST IN GRADE B 1 ASSIGNED TO THE DELEGATION OF THE COMMISSION IN WASHINGTON ( EURATOM SUPPLY AGENCY ), OF THE DECISIONS NOT TO ACCEPT THE APPLICANT ' S APPLICATION FOR THAT POST AND TO APPOINT MR M TO IT , AND OF THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT LODGED ON 2 AUGUST 1976 ,

1THE APPLICATION , WHICH WAS LODGED ON 18 FEBRUARY 1977 , SEEKS THE ANNULMENT OF VACANCY NOTICE NO COM/267/76 RELATING TO A POST IN GRADE B 1 ASSIGNED TO THE DELEGATION OF THE COMMISSION IN WASHINGTON ( EURATOM SUPPLY AGENCY ), OF THE DECISIONS NOT TO ACCEPT THE APPLICANT ' S APPLICATION FOR THAT POST AND TO APPOINT ANOTHER CANDIDATE TO IT , AND OF THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT LODGED ON 2 AUGUST 1976 .

2DURING THE PREPARATION OF THE PRELIMINARY DRAFT BUDGET FOR 1975 THE AGENCY HAD REPEATED ITS EARLIER REQUEST FOR THE CREATION OF TWO POSTS IN GRADE B 1 , ONE OF WHICH WAS TO BE ASSIGNED TO BRUSSELS AND THE OTHER TO WASHINGTON .

3HOWEVER , DURING THE PREPARATION OF THE PRELIMINARY DRAFT BUDGET FOR 1976 THE AGENCY CONFINED ITSELF FOR BUDGETARY REASONS TO A REQUEST FOR THE CREATION OF A SINGLE POST IN GRADE B 1 , TO BE ASSIGNED TO THE DELEGATION OF THE COMMISSION IN WASHINGTON .

4THE VACANCY NOTICE IN DISPUTE , WHICH THUS CONCERNED A POST IN THE GRADE IN QUESTION ASSIGNED TO WASHINGTON , LISTS THE FOLLOWING NECESSARY QUALIFICATIONS :

- A THOROUGH KNOWLEDGE OF THE NUCLEAR FUEL INDUSTRY ;

- WIDE BUSINESS EXPERIENCE ;

- WIDE EXPERIENCE RELEVANT TO THE POST .

5THE APPLICANT , AN OFFICIAL IN GRADE B 2 , WHO , SINCE HER APPOINTMENT IN 1959 , HAS SPENT HER ENTIRE SUBSEQUENT CAREER AT THE EURATOM SUPPLY AGENCY , WAS ADVISED ON 6 JULY 1976 THAT HER APPLICATION FOR THE POST IN QUESTION HAD NOT BEEN SUCCESSFUL .

ADMISSIBILITY

6THE DEFENDANT OBJECTS THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT THE VACANCY NOTICE AT ISSUE DOES NOT CONSTITUTE AN ACT ADVERSELY AFFECTING AN OFFICIAL WITHIN THE MEANING OF ARTICLE 91 ( 1 ) OF THE STAFF REGULATIONS .

7IN FIXING THE CONDITIONS GOVERNING ACCESS TO THE POST THE VACANCY NOTICE , DRAWN UP WITHIN THE CONTEXT OF ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS , DETERMINES THE OFFICIALS WHOSE CANDIDATURE MAY BE ACCEPTED .

8IN SO FAR AS THE EFFECT OF THOSE CONDITIONS IS TO RULE OUT THE CANDIDATURE OF OFFICIALS WHO ARE ELIGIBLE FOR TRANSFER OR PROMOTION , THE VACANCY NOTICE CONSTITUTES AN ACT ADVERSELY AFFECTING SUCH OFFICIALS .

9THE OBJECTION OF INADMISSIBILITY MUST THEREFORE BE DISMISSED AS REGARDS THAT POINT .

10THE COMMISSION ALSO SUBMITS THAT IN REALITY THE APPLICATION FOR ANNULMENT IS DIRECTED NOT AGAINST THE VACANCY NOTICE ITSELF BUT AGAINST THE DECISION TO ASSIGN THE NEWLY-CREATED POST TO WASHINGTON .

11IT MAINTAINS THAT DECISIONS RELATING TO THE DISTRIBUTION OF THE AVAILABLE POSTS IN THE VARIOUS ADMINISTRATIVE UNITS FALL WITHIN THE FIELD OF ITS DISCRETIONARY POWERS IN THE MATTER .

12THE ADMISSIBILITY OF THAT HEAD OF THE CONCLUSIONS IS LINKED TO THE SUBSTANCE AND , MORE PARTICULARLY , TO THE COMPLAINT RELATING TO MISUSE OF POWERS .

SUBSTANCE

13THE APPLICANT MAINTAINS THAT THE CONTESTED MEASURES INFRINGE ARTICLES 45 ( 1 ) AND 7 ( 1 ) OF THE STAFF REGULATIONS AND ARE VITIATED BY MISUSE OF POWERS .

14SHE ALLEGES THAT THE COMPARATIVE MERITS OF THE CANDIDATE APPOINTED WERE NOT CONSIDERED AS AGAINST HER OWN , SINCE HER PERIODIC REPORT FOR THE PERIOD FROM 1 JULY 1973 TO 30 JUNE 1975 WAS ONLY DRAWN UP AFTER THE OTHER CANDIDATE HAD BEEN APPOINTED .

15THE APPLICANT ADDS THAT THE FACT THAT FOR MANY YEARS SHE HAD PERFOMED DE FACTO DUTIES ( OF HEAD CLERK ) CORRESPONDING TO A GRADE HIGHER THAN HER OWN WAS NOT TAKEN INTO ACCOUNT .

16SHE FURTHER STATES THAT THE VACANCY NOTICE AT ISSUE WAS DRAWN UP NOT IN THE INTERESTS OF THE SERVICE BUT IN ORDER TO PERMIT THE APPOINTMENT OF THE OTHER CANDIDATE , WHICH WAS ALREADY AGREED BEFOREHAND .

17ALTHOUGH , UNDER ARTICLE 7 ( 1 ), AN OFFICIAL CANNNOT BE COMPELLED TO PERFORM DUTIES CORRESPONDING TO A GRADE HIGHER THAN HIS OWN , EXCEPT ON A TEMPORARY POSTING , THE FACT THAT HE AGREES TO PERFORM THEM MAY BE A FACTOR TO BE BORNE IN MIND IN CONNEXION WITH PROMOTION , BUT DOES NOT GIVE HIM THE RIGHT TO BE RECLASSIFIED .

18ALTHOUGH IT IS TRUE THAT ON SEVERAL OCCASIONS THE DIRECTOR GENERAL OF THE AGENCY REQUESTED THE CREATION OF TWO POSTS IN GRADE B 1 , ONE TO BE ASSIGNED TO WASHINGTON AND THE OTHER TO BRUSSELS , JUSTIFIED BUDGETARY CONSIDERATIONS LED HIM SUBSEQUENTLY TO SUBMIT ONLY A SINGLE APPLICATION CONCERNING THE POST FOR WASHINGTON .

19BY DECIDING TO GIVE PRIORITY IN THAT WAY TO THE POST TO BE CREATED IN WASHINGTON , THE AGENCY THEREBY ACKNOWLEDGED THAT THE DUTIES APPERTAINING TO THAT POST INVOLVED ADDITIONAL RESPONSIBILITIES , IN PARTICULAR HAVING REGARD TO THE IMPORTANCE OF THE RELATIONS TO BE MAINTAINED WITH THE UNITED STATES CIRCLES CONCERNED .

20THE APPLICANT ' S AGE AND SENIORITY IN THE GRADE AND POST , EVEN THOUGH SUPERIOR TO THE SUCCESSFUL CANDIDATE ' S , MUST NOT PREVAIL OVER THE NATURE OF THE DUTIES TO BE CARRIED OUT .

21AS REGARDS THE ABSENCE OF HER LAST PERIODIC REPORT , THE APPLICANT MAINTAINS THAT THIS WOULD HAVE PREVENTED THE CONSIDERATION OF THE COMPARATIVE MERITS OF THE CANDIDATES - IF IT HAD BEEN CARRIED OUT - FROM TAKING , PLACE UNDER THE REQUIRED CONDITIONS .

22HOWEVER , THE APPLICANT HAS NOT SHOWN IN WHAT WAY THE ABSENCE OF THE SAID REPORT COULD HAVE BEEN PREJUDICIAL TO HER , SINCE IT COULD NOT HAVE ADDED ANYTHING TO THE EXCELLENT ASSESSMENTS MADE IN THE EARLIER REPORTS .

23THE APPLICATION IS UNFOUNDED AND MUST THEREFORE BE DISMISSED .

COSTS

24UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

25THE APPLICANT HAS FAILED IN HER SUBMISSIONS .

26HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS MUST BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .