61982J0148

1 . OFFICIALS - RETIREMENT - DISCRETIONARY POWER OF THE ADMINISTRATION - SCOPE

( STAFF REGULATIONS , ART . 50 )

2 . OFFICIALS - ORGANIZATION OF DEPARTMENTS - DISCRETIONARY POWER OF THE ADMINISTRATION

3 . OFFICIALS - RETIREMENT - DISCRETIONARY POWER OF THE ADMINISTRATION - SCOPE - DECISION NOT TO ASSIGN AN OFFICIAL WHO HAS BEEN RETIRED TO ANOTHER POST - DEFENCE OF THE INTERESTS OF THE EMPLOYEE CONCERNED

( STAFF REGULATIONS , ART . 50 )

1 . THE COMMUNITY INSTITUTIONS HAVE A WIDE DISCRETIONARY POWER REGARDING DECISIONS RETIRING OFFICIALS IN GRADES A 1 AND A 2 . A POWER OF THAT KIND PRESUPPOSES CONSIDERABLE FREEDOM OF DECISION REGARDING THE OBJECTIVE REQUIREMENTS OF THE SERVICE AND THE ASSESSMENT OF THE INDIVIDUAL QUALITIES OF THE OFFICIALS CONCERNED AND ALSO A SCRUPULOUS EXAMINATION OF THE RELEVANT INFORMATION .

2 . THE INSTITUTIONS ARE EMPOWERED TO ORGANIZE AND REORGANIZE THEIR DEPARTMENTS ACCORDING TO THEIR REQUIREMENTS .

3 . THE COMMUNITY INSTITUTIONS ARE VESTED WITH A WIDE DISCRETIONARY POWER WITH REGARD TO ANY DECISION TO REASSIGN OFFICIALS TO ANOTHER POST IN THE SAME GRADE . OFFICIALS WHOM THE COMMISSION HAS DECIDED TO RETIRE DO NOT ENJOY ANY PREFERENCE IN THAT RESPECT OVER THE OTHER OFFICIALS WHO QUALIFY FOR CONSIDERATION . THEY MUST HOWEVER HAVE AN ADEQUATE OPPORTUNITY PROPERLY TO SAFEGUARD THEIR INTERESTS .

IN CASE 148/82

JEAN-CLAUDE RENAUD , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 133 AVENUE MARIE-JOSEE , 1200 BRUSSELS , REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , ADVOCATE , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY HENDRIK VAN LIER , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DEFENDANT ' S DECISIONS TO RETIRE THE APPLICANT AND NOT TO ASSIGN HIM TO ANOTHER POST ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 12 MAY 1982 , MR RENAUD , A FORMER OFFICIAL IN GRADE A 2 OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 8 JULY 1981 RETIRING HIM AND FOR ANNULMENT OF THE DECISION NOT TO ASSIGN HIM TO ANOTHER POST IN HIS CATEGORY CORRESPONDING TO HIS GRADE AND OF THE DECISIONS WHEREBY , AFTER THE APPLICANT HAD BEEN RETIRED , THE POSTS IN HIS CATEGORY CORRESPONDING TO HIS GRADE WERE FILLED . THE CLAIMS IN THE ALTERNATIVE REFER IN PARTICULAR TO THE POSTS OF DIRECTOR OF DIRECTORATE D IN DIRECTORATE GENERAL I FOR EXTERNAL RELATIONS .

2 THE APPLICANT TOOK UP HIS DUTIES AT THE COMMISSION ON 1 SEPTEMBER 1977 AS AN OFFICIAL IN GRADE A 2 ASSIGNED TO THE POST OF CHIEF ADVISER IN DIRECTORATE GENERAL XVII FOR ENERGY . HIS DUTIES RELATED ESSENTIALLY TO INTERNATIONAL ENERGY PROBLEMS AND BILATERAL AND MULTILATERAL NEGOTIATIONS .

3 BY LETTER OF 4 MAY 1981 FROM THE PRESIDENT OF THE COMMISSION , THE APPLICANT WAS ADVISED THAT THE COMMISSION WAS CONSIDERING RETIRING HIM ON THE BASIS OF ARTICLE 50 OF THE STAFF REGULATIONS OF OFFICIALS . AFTER TAKING NOTE OF THE OBSERVATIONS OF THE APPLICANT , THE COMMISSION DECIDED ON 8 JULY 1981 TO RETIRE HIM IN THE INTERESTS OF THE SERVICE WITH EFFECT FROM 1 NOVEMBER 1981 . SINCE THE APPLICANT HAD NOT BEEN ASSIGNED TO ANOTHER POST IN HIS CATEGORY CORRESPONDING TO HIS GRADE , HE RECEIVED THE ALLOWANCE PAYABLE IN SUCH CASES .

4 IN SUPPORT OF HIS APPLICATION FOR ANNULMENT , MR RENAUD CLAIMS THAT THE GROUNDS OF THAT DECISION WERE NOT ADEQUATELY STATED AND THAT IT WAS MOREOVER VITIATED BY MISUSE OF POWERS . THE STATEMENT OF GROUNDS WAS EXCESSIVELY GENERAL AND DEVOID OF ANY SPECIFIC DETAILS . THE DECISION RETIRING THE APPLICANT WAS ADOPTED WITHIN THE FRAMEWORK OF A GENERALIZED APPLICATION OF ARTICLE 50 OF THE STAFF REGULATIONS INTENDED TO FACILITATE THE REPLACEMENT OF SENIOR OFFICIALS WHEN CERTAIN MEMBERS OF THE COMMISSION WERE CHANGED , AS OCCURS UNDER THE AMERICAN ' ' SPOILS SYSTEM ' ' WHERE EVERY CHANGE OF PRESIDENT INVOLVES REPLACEMENT OF THE SENIOR OFFICIALS . IN THIS CASE THE DECISION WAS IN FACT TAKEN AT A TIME WHEN MEMBERS OF THE COMMISSION HAD JUST BEEN REAPPOINTED OR NEW APPOINTMENTS HAD JUST BEEN MADE .

5 IT HAS BEEN HELD BY THE COURT ( JUDGMENT OF 11 MAY 1978 IN CASE 34/77 OSLIZLOK V COMMISSION ( 1978 ) ECR 1099 ) THAT THE COMMISSION HAS A WIDE DISCRETIONARY POWER REGARDING DECISIONS RETIRING OFFICIALS IN GRADES A 1 AND A 2 . A POWER OF THAT KIND PRESUPPOSES CONSIDERABLE FREEDOM OF DECISION REGARDING THE OBJECTIVE REQUIREMENTS OF THE SERVICE AND THE ASSESSMENT OF THE INDIVIDUAL QUALITIES OF THE OFFICIALS CONCERNED AND ALSO A SCRUPULOUS EXAMINATION OF THE RELEVANT INFORMATION .

6 THE COURT HAS ALSO HAD OCCASION TO MAKE IT CLEAR THAT THE INSTITUTIONS ARE EMPOWERED TO ORGANIZE AND REORGANIZE THEIR DEPARTMENTS ACCORDING TO THEIR REQUIREMENTS .

7 THE GROUNDS RELIED UPON BY THE COMMISSION IN ITS LETTER OF 4 MAY 1980 AND IN THE CONTESTED DECISION REFER TO THE GUIDELINES ADOPTED BY THE COMMISSION AT ITS MEETING OF 26 MARCH 1980 PRIMARILY ON THE BASIS OF THE SPIERENBURG AND ORTOLI REPORTS . ACCORDING TO THE COMMISSION THE REORGANIZATION WAS TO AFFECT MORE PARTICULARLY THE SENIOR POSTS AND TO INVOLVE THE ABOLITION OF CERTAIN POSTS OF CHIEF ADVISER , INCLUDING THE APPLICANT ' S POST .

8 IT IS APPARENT FROM THE DOCUMENTS PUBLISHED BY THE COMMISSION THAT , FOLLOWING DISCUSSIONS WITHIN THE COMMISSION IN SEPTEMBER 1978 , A GROUP OF FIVE INDEPENDENT LEADING FIGURES , PRESIDED OVER BY THE AMBASSADOR DIRK SPIERENBURG , FORMER VICE-PRESIDENT OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY AND FORMER PERMANENT REPRESENTATIVE OF THE NETHERLANDS , WAS SET UP IN JANUARY 1979 TO EXAMINE THE ORGANIZATION AND FUNCTIONING OF THE COMMISSION . THE GROUP PRESENTED ITS REPORT ON 24 SEPTEMBER 1979 . IT WAS WIDELY PUBLICIZED AND WAS DEBATED IN THE EUROPEAN PARLIAMENT . THE THIRD PART OF THE REPORT RECOMMENDED CERTAIN CHANGES IN THE ADMINISTRATIVE POLICY AND ORGANIZATION OF THE COMMISSION , INCLUDING A REDUCTION OF THE NUMBER OF BASIC ADMINISTRATIVE UNITS . THE COMMISSION ACCEPTED THE PRINCIPLE OF THAT REDUCTION AT A MEETING HELD IN OCTOBER 1979 . THAT MEETING WAS FOLLOWED BY A STATEMENT TO THE PRESS BY THE PRESIDENT OF THE COMMISSION , MR JENKINS . THE COMMISSION ALSO SET UP A WORKING GROUP UNDER THE CHAIRMANSHIP OF MR ORTOLI WHICH REPORTED IN MARCH 1980 .

9 THESE FACTS SHOW THAT THE INTERNAL REORGANIZATION OF THE COMMISSION WAS THOROUGHLY DISCUSSED OVER A LONG PERIOD AND CANNOT BE ASCRIBED EXCLUSIVELY TO THE FACT THAT NEW MEMBERS OF THE COMMISSION HAD BEEN APPOINTED . THE FACT THAT A RELATIVELY HIGH NUMBER OF SENIOR OFFICIALS WERE THUS RETIRED AT THE SAME TIME AS THE APPLICANT DOES NOT , IN ITSELF , CONSTITUTE A MISUSE OF POWERS . THEREFORE , IN THE ABSENCE OF ANY OTHER EVIDENCE TO SUPPORT THE APPLICANT ' S ALLEGATIONS , THE ACCUSATION OF MISUSE OF POWERS MUST BE REJECTED .

10 FINALLY IT IS TO BE NOTED THAT THE APPLICANT HAD AN OPPORTUNITY TO SAFEGUARD HIS INTERESTS , IN SO FAR AS HE WAS ADVISED OF THE COMISSION ' S INTENTIONS BY A LETTER OF 4 MAY 1981 . IN THAT LETTER THE COMMISSION STATED THAT IT CONSIDERED THE APPLICANT ' S POST NO LONGER TO BE NECESSARY . THE APPLICANT WAS THEREBY PROVIDED WITH A SUFFICIENT BASIS TO ENABLE HIM TO DRAW ATTENTION TO THE ADVANTAGES WHICH MIGHT ACCRUE TO THE COMMISSION FROM THE RETENTION OF A POST OF CHIEF ADVISER WITH A VIEW TO THE DISCHARGE OF THE DUTIES ATTACHED TO THAT POST UNTIL THAT TIME .

11 THE APPLICATION FOR ANNULMENT OF THE DECISION TO RETIRE THE APPLICANT MUST THEREFORE BE REJECTED .

12 IN THE ALTERNATIVE THE APPLICANT CRITICIZES THE FACT THAT HE WAS NOT ASSIGNED TO ANOTHER POST . HE CONSIDERS THAT HE WAS SUITABLE FOR THE POST OF DIRECTOR OF DIRECTORATE I IN DIRECTORATE GENERAL XVII FOR ENERGY AND ALSO SUBMITTED AN APPLICATION FOR THE POST OF DIRECTOR OF DIRECTORATE D IN DIRECTORATE GENERAL I FOR EXTERNAL RELATIONS . HIS SUITABILITY FOR THAT POST WAS CLEARLY APPARENT FROM HIS APPLICATION . HOWEVER THE POST IN THAT DIRECTORATE WAS FILLED BY MEANS OF THE PROMOTION OF AN OFFICIAL IN GRADE A 3 . ACCORDING TO THE APPLICANT , AN OFFICIAL IN GRADE A 2 WHO HAS BEEN RETIRED OUGHT TO BE REASSIGNED TO A POST FOR WHICH HE HAS THE REQUIRED SKILLS IN PREFERENCE TO AN OFFICIAL IN GRADE A 3 . 13 IT SHOULD BE NOTED IN THAT CONNECTION THAT THE COMMISSION IS VESTED WITH A WIDE DISCRETIONARY POWER WITH REGARD TO ANY DECISION TO REASSIGN OFFICIALS TO ANOTHER POST IN THE SAME GRADE . THE OFFICIALS WHOM THE COMMISSION HAS DECIDED TO RETIRE DO NOT ENJOY ANY PREFERENCE IN THAT RESPECT OVER THE OTHER OFFICIALS WHO QUALIFY FOR CONSIDERATION . THEY MUST HOWEVER HAVE AN ADEQUATE OPPORTUNITY PROPERLY TO SAFEGUARD THEIR INTERESTS .

14 IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT THE COMMISSION GAVE THE APPLICANT AN ADEQUATE OPPORTUNITY PROPERLY TO SAFEGUARD HIS INTERESTS BY BRINGING TO HIS NOTICE THE EXISTENCE OF POSTS WHICH BECOME VACANT , INCLUDING THAT OF DIRECTOR IN DIRECTORATE GENERAL I AND OF DIRECTOR IN DIRECTORATE GENERAL XVII , AND THAT THE APPLICANT APPLIED FOR THE FIRST OF THOSE TWO POSTS . IN ORDER TO FILL THAT POST , THE COMMISSION CONSIDERED AND COMPARED THE VARIOUS CANDIDATES AND CHOSE TO APPOINT A PERSON OTHER THAN THE APPLICANT TO THE VACANT POST . THAT DECISION WAS THEREFORE TAKEN IN ACCORDANCE WITH THE APPLICABLE RULES OF THE STAFF REGULATIONS . AS REGARDS THE POST IN DIRECTORATE GENERAL XVII , THE APPLICANT HIMSELF DID NOT CONSIDER IT APPROPRIATE TO SUBMIT AN APPLICATION AND THEREFORE THE COMMISSION DID NOT HAVE TO CONSIDER HIM .

15 THEREFORE , THE APPLICANT ' S ALTERNATIVE CLAIM FOR ANNULMENT OF THE DECISION NOT TO ASSIGN HIM TO ANOTHER POST MUST ALSO BE REJECTED . FOR THE SAME REASON , THERE ARE NO GROUNDS FOR ANNULLING THE DECISIONS OF THE COMMISSION WHICH HAVE BEEN ADOPTED IN THE MEANTIME IN ORDER TO FILL THE VACANT POSTS .

COSTS

16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , AN UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

17 HOWEVER , 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 ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .