61969J0035

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1 . OFFICIALS - TEMPORARY POSTING - EXPRESS AGREEMENT OF THE APPOINTING AUTHORITY - NECESSITY

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 7 ( 2 ))

2 . OFFICIALS - TEMPORARY POSTING - OFFICIAL CALLED UPON TO OCCUPY A POST TEMPORARILY - DISCRETIONARY POWER OF THE APPOINTING AUTHORITY

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 7 ( 2 ))

1 . THE APPLICATION OF ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS REQUIRES THE EXPRESS AGREEMENT OF THE APPOINTING AUTHORITY IN ORDER " TO CALL UPON " AN OFFICIAL TO OCCUPY TEMPORARILY A POST IN A HIGHER CAREER BRACKET .

2 . THE DECISION TO CALL UPON AN OFFICIAL TO OCCUPY A POST TEMPORARILY DEPENDS ON AN ASSESSMENT OF THE INTERESTS OF THE SERVICE . AN OFFICIAL CANNOT ACQUIRE A RIGHT TO THE TEMPORARY POST FROM THE MERE FACT THAT HE IS PERFORMING THE DUTIES ATTACHING THERETO .

IN CASE 35/69

HERTA GROSZ, NEE LAMPE, THE WIDOWN OF FERO GROSZ AND AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED AND ASSISTED BY JOSE SAELS, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FERNAND LOESCH, 2 RUE GOUTHE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, LEGAL ADVISER OF THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF A DECISION AS TO PROMOTION AND FOR PAYMENT OF THE ALLOWANCE PROVIDED FOR IN ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS,

THE REQUEST FOR THE AWARD OF A DIFFERENTIAL ALLOWANCE

1 THE APPLICATION SEEKS FIRST OF ALL AN ORDER THAT THE COMMISSION PAY THE APPLICANT AS FROM 24 JANUARY 1969 A DIFFERENTIAL ALLOWANCE IN RESPECT OF A TEMPORARY POSTING IN ACCORDANCE WITH ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS .

2 IN SUPPORT OF THIS CONCLUSION THE APPLICANT, WHO IS CLASSIFIED IN GRADE C 2, MAINTAINS THAT SINCE 23 OCTOBER 1968 SHE HAS PERFORMED THE DUTIES ATTACHING TO THE POST OF EXECUTIVE SECRETARY IN GRADE C 1, WHICH BECAME VACANT ON THE DEPARTURE OF ITS FORMER OCCUPANT .

3 UNDER THE TERMS OF ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS, AN OFFICIAL WHO HAS BEEN " CALLED UPON " TO OCCUPY TEMPORARILY A POST IN A CAREER BRACKET IN HIS CATEGORY OR SERVICE WHICH IS HIGHER THAN HIS SUBSTANTIVE CAREER BRACKET SHALL RECEIVE, FROM THE BEGINNING OF THE FOURTH MONTH OF SUCH TEMPORARY POSTING, A DIFFERENTIAL ALLOWANCE EQUAL TO THE DIFFERENCE BETWEEN THE REMUNERATION CARRIED BY HIS SUBSTANTIVE GRADE AND STEP AND THE REMUNERATION WHICH HE WOULD RECEIVE IN RESPECT OF THE STEP AT WHICH HE WOULD BE CLASSIFIED IN THE STARTING GRADE IF HE WERE APPOINTED TO THE CAREER BRACKET OF HIS TEMPORARY POSTING .

4 AT THIS PROVISION INVOLVES FOR THE OFFICIAL CONCERNED A RIGHT TO SPECIFIC PAYMENTS BY THE ADMINISTRATION, ITS APPLICATION IMPLIES THE EXPRESS AGREEMENT OF THE APPOINTING AUTHORITY IN ORDER TO " CALL UPON " THE OFFICIAL TO OCCUPY TEMPORARILY THE POST IN THE HIGHER CAREER BRACKET .

5 IN THIS INSTANCE NO SUCH AGREEMENT EXISTS .

6 MOREOVER, AS THE DECISION TO CALL UPON AN OFFICIAL TO OCCUPY A POST TEMPORARILY DEPENDS ON AN ASSESSMENT OF THE INTERESTS OF THE SERVICE, THE APPLICANT CANNOT ACQUIRE A RIGHT TO THE TEMPORARY POST FROM THE MERE FACT THAT SHE PERFORMS THE DUTIES ATTACHING TO THE POST IN QUESTION .

7 FURTHERMORE, THE APPLICANT HAS NOT SHOWN THAT SHE IN FACT PERFORMS THE DUTIES INVOLVED IN THE TEMPORARY POSTING IN QUESTION .

8 IT IS CLEAR THAT ON 20 DECEMBER 1968 THE POST RELATING TO THESE DUTIES WAS TRANSFERRED FROM DIRECTORATE IX-B TO ANOTHER DEPARTMENT, IN FACT TO THE OFFICE OF A MEMBER OF THE COMMISSION .

9 THE APPLICANT MAINTAINS THAT, IN SPITE OF THIS TRANSFER, SHE CONTINUES TO PERFORM THE DUTIES ATTACHING TO THE SAID POST WITHIN THE ABOVEMENTIONED DIRECTORATE .

10 THIS ALLEGATION CANNOT BE ACCEPTED, AS THE DUTIES WHICH THE APPLICANT CLAIMS TO PERFORM CLEARLY FALL WITHIN THE FRAMEWORK OF DIRECTORATE IX-B AND THEREFORE CANNOT BE REGARDED AS CONSTITUTING THE TEMPORARY OCCUPATION OF A POST WHICH HAS BEEN TRANSFERRED TO ANOTHER DEPARTMENT .

11 FOR THESE REASONS, THE APPLICATION FOR THE AWARD OF A DIFFERENTIAL ALLOWANCE IN RESPECT OF A TEMPORARY POSTING, AS PROVIDED FOR IN ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS, MUST BE DISMISSED AS UNFOUNDED .

THE APPLICATION FOR ANNULMENT

12 THE APPLICATION ALSO SEEKS THE ANNULMENT OF THE DECISION OF 16 JANUARY 1969 APPOINTING MISS CARLA BORSA TO THE POST IN GRADE C 1, REFERRED TO IN VACANCY NOTICE NO COM/450 .

13 THE APPLICANT MAINTAINS THAT THIS DECISION IS ILLEGAL IN THAT IT WAS TAKEN AFTER THE DECISION TO TRANSFER THIS POST FROM DIRECTORATE IX-B TO THE OFFICE OF A MEMBER OF THE COMMISSION .

14 THE DOCUMENTS IN THE FILE SHOW THAT THE APPOINTMENT OF MISS BORSA AND THE TRANSFER OF THE POST WERE BOTH DECIDED UPON ON 20 DECEMBER 1968 .

15 HOWEVER, NO EVIDENCE HAS BEEN BROUGHT IN THIS INSTANCE TO SHOW THAT THIS COURSE OF ACTION WAS DETERMINED BY CONSIDERATIONS OTHER THAN THE INTERESTS OF THE SERVICE .

16 SECONDLY, THE TRANSFER IN QUESTION INVOLVED NO CHANGE IN THE DEFINITION OF DUTIES WHICH HAD BEEN DRAWN UP IN VACANCY NOTICE NO COM/450, AND THEREFORE DID NOT ALTER THE CRITERIA ON WHICH A CHOICE BETWEEN THE CANDIDATES COULD BE MADE .

17 IN THESE CIRCUMSTANCES, THIS TRANSFER CANNOT INVALIDATE THE CONTESTED APPOINTMENT .

18 THE APPLICANT ALSO MAINTAINS THAT THE ESSENTIAL REASON FOR THIS DECISION WAS THAT IT WAS INTENDED THAT THE CANDIDATE PROMOTED SHOULD OCCUPY A POST OTHER THAN THE ONE IN QUESTION IN THIS INSTANCE .

19 IT IS ESTABLISHED THAT VACANCY NOTICE NO COM/450 REQUIRED A KNOWLEDGE OF ITALIAN SHORTHAND AND TYPING .

20 THE DOCUMENTS IN THE FILE SHOW THAT IT WAS IN RELATION TO THESE REQUIREMENTS THAT MISS CARLA BORSA' S QUALIFICATIONS WERE EXAMINED AND THAT SHE WAS THE CANDIDATE CHOSEN .

21 ON THESE GROUNDS THE APPLICATION FOR ANNULMENT MUST BE DISMISSED .

THE ALTERNATIVE CLAIM

22 THE APPLICANT CLAIMS IN THE ALTERNATIVE THAT THE DEFENDANT BE ORDERED TO PAY THE COSTS OF THE ACTION .

23 SHE MAINTAINS THAT UNDER THE TERMS OF THE THIRD PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS " SPECIFIC DECISIONS REGARDING ... PROMOTION ... OF AN OFFICIAL SHALL AT ONCE BE POSTED IN THE PREMISES OF THE INSTITUTION TO WHICH THE OFFICIAL BELONGS AND SHALL BE PUBLISHED IN THE MONTHLY STAFF BULLETIN OF THE COMMUNITIES ".

24 THE APPLICANT CLAIMS THAT, BY PUBLISHING ON 16 JANUARY 1969 A DECISION ADOPTED ON 20 DECEMBER 1968, THE COMMISSION INFRINGED THE PROVISIONS OF THIS ARTICLE AND CREATED A CONFUSING SITUATION CAPABLE OF MISLEADING THE APPLICANT AS TO HER RIGHTS .

25 THE APPLICANT HAS BROUGHT NO EVIDENCE TO SUPPORT THIS ALLEGATION .

26 THE APPLICANT HAS FAILED IN HER APPLICATION .

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

28 HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THOSE RULES, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .