61968J0021

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1 . OFFICIALS - POST - RE-ASSESSMENT OF POST

2 . OFFICIALS - POST - NO RIGHT TO A PARTICULAR POST

3 . OFFICIALS - PROMOTION - NO OBLIGATION TO STATE REASONS - PROOF OF INADEQUACY OF REASONS TO BE PROVIDED BY THE PERSON ALLEGING IT

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 45 )

1 . THERE IS NO PROVISION IN THE STAFF REGULATIONS EITHER FOR RE-ASSESSMENT OR FOR RE-CLASSIFICATION AS SUCH . UNDER THE PROVISIONS OF THE STAFF REGULATIONS, THE CAREER OF AN OFFICIAL PROGRESSES ON THE BASIS OF A SYSTEM OF CATEGORIES AND CONSECUTIVE GRADES, COMMENCING WITH THE GRADE IN WHICH HE WAS RECRUITED .

2 . THE STAFF REGULATIONS DO NOT GIVE OFFICIALS A RIGHT TO ANY PARTICULAR POST; ON THE CONTRARY, THEY LEAVE TO THE APPOINTING AUTHORITY THE POWER TO ASSIGN OFFICIALS IN THE INTERESTS OF THE SERVICE TO THE VARIOUS POSTS WHICH CORRESPOND TO THEIR GRADE .

3 . ARTICLE 45 DOES NOT COMPEL THE APPOINTING AUTHORITY TO STATE THE REASONS FOR DECISIONS RELATING TO PROMOTION, IN PARTICULAR WITH REGARD TO UNSUCCESSFUL CANDIDATES .

IT IS FOR THE PARTY CLAIMING THAT SUCH A DECISION HAS NO ADEQUATE BASIS TO GIVE GROUNDS FOR OR SUPPLY PROOF OF HIS ALLEGATION .

IN CASE 21/68

ANDRE H.A.C.M . HUYBRECHTS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, 41 CHEMIN DUCAL, WEZEMBEECK-BRUSSELS, ASSISTED BY MARCEL GREGOIRE, ADVOCATE 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 LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR APPOINTMENT OF THE APPLICANT TO THE POST OF HEAD OF THE DIVISION OF DEVELOPMENT STUDIES IN DIRECTORATE GENERAL VIII-B,

ADMISSIBILITY

1 THE ADMISSIBILITY OF THE APPLICATION IS NOT CONTESTED BY THE DEFENDANT AND THERE IS NO GROUND FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

2 THE APPLICATION IS ADMISSIBLE .

THE SUBSTANCE OF THE CASE

3 THE APPLICANT'S PRINCIPAL CLAIM IS THAT THE POST OF HEAD OF THE SPECIAL DEPARTMENT OF DEVELOPMENT STUDIES IN DG VIII-B, OCCUPIED BY HIM FROM 1 OCTOBER 1965 TO 20 JUNE 1968, WAS RE-ASSESSED AS A POST OF HEAD OF DIVISION WHEN THE NEW DETAILED LIST OF POSTS OF THE SINGLE COMMISSION WAS ESTABLISHED .

4 SINCE THIS RE-ASSESSMENT DID NOT ENTAIL ANY ESSENTIAL ALTERATION OF THE POWERS AND DUTIES ATTACHING TO THE POST OF HEAD OF A SPECIAL DEPARTMENT THE APPLICANT CLAIMS THAT HE SHOULD HAVE BEEN RE-CLASSIFIED IN GRADE A3, THE GRADE CORRESPONDING TO THE POST OF HEAD OF DIVISION .

5 SINCE THIS WAS NOT DONE THE CONTESTED DECISIONS VIOLATE, ACCORDING TO THE APPLICANT, THE PRINCIPLE OF CORRESPONDENCE BETWEEN GRADE AND POST AND DETRACT FROM THE POST HELD BY THE APPLICANT AND FROM HIS STATUS .

6 THERE IS NO PROVISION IN THE STAFF REGULATIONS EITHER FOR RE-ASSESSMENT OR FOR RE-CLASSIFICATION AS SUCH .

7 UNDER THE PROVISIONS OF THE STAFF REGULATIONS THE CAREER OF AN OFFICIAL PROGRESSES ON THE BASIS OF A SYSTEM OF CATEGORIES AND CONSECUTIVE GRADES COMMENCING WITH THE GRADE IN WHICH HE WAS RECRUITED .

8 ALTHOUGH THE STAFF REGULATIONS ARE INTENDED TO GUARANTEE TO AN OFFICIAL THE GRADE HE HAS OBTAINED AND A POST CORRESPONDING TO THAT GRADE THEY GIVE HIM NO RIGHT TO ANY PARTICULAR POST; ON THE CONTRARY, THEY LEAVE TO THE APPOINTING AUTHORITY THE POWER TO ASSIGN OFFICIALS IN THE INTERESTS OF THE SERVICE TO THE VARIOUS POSTS CORRESPONDING TO THEIR GRADE .

9 THE APPLICANT DOES NOT DENY THAT THE POST TO WHICH HE WAS ASSIGNED CORRESPONDS TO HIS GRADE PRIOR TO THE IMPLEMENTING OF THE MERGER TREATY, WHICH IS STILL HIS AT THE PRESENT TIME .

10 MOREOVER, THE ALTERATION MADE TO THE DETAILED LIST OF POSTS TO WHICH THE APPLICANT REFERS DOES NOT AMOUNT TO A RE-ASSESSMENT OF AN EXISTING POST, BUT MUST BE CONSIDERED AS SUBSTITUTING A DIVISION FOR ANOTHER ADMINISTRATIVE UNIT .

11 THIS SUBSTITUTION IN THE PRESENT CASE ON THE ONE HAND LED TO THE CREATION OF A NEW POST OF HEAD OF DIVISION WITH NEW RESPONSIBILITIES, AND ON THE OTHER NECESSITATED A FRESH APPOINTMENT FOR THE OFFICIAL WHO WAS PREVIOUSLY HEAD OF THE OTHER ADMINISTRATIVE UNIT .

12 IN THESE CIRCUMSTANCES THERE IS NO LEGAL FOUNDATION FOR THE APPLICANT'S CLAIM THAT HE SHOULD BE APPOINTED TO THAT NEW POST BY WAY OF RE-CLASSIFICATION .

13 FOR THE PURPOSE OF FILLING THE NEW POST, THE APPOINTING AUTHORITY WAS BOUND TO FOLLOW THE PROCEDURES LAID DOWN BY THE STAFF REGULATIONS, IN PARTICULAR BY ARTICLE 29(1 ), WHICH STATES THAT IT SHALL FILL VACANT POSTS BY TRANSFER, BY PROMOTION AND BY COMPETITION .

14 THE ONLY WAY IN WHICH THE APPLICANT COULD BE APPOINTED TO THE VACANT POST IN GRADE A3, BEARING IN MIND HIS CLASSIFICATION IN GRADE A4 AND ARTICLE 7(1 ) OF THE REGULATIONS, WAS BY PROMOTION OR BY COMPETITION .

15 IN THE PRESENT CASE THE APPOINTING AUTHORITY FILLED THE VACANCY BY WAY OF PROMOTION .

16 ON 17 JULY 1968 IT DECIDED TO APPOINT MR DIETER FRISCH TO THE VACANT POST AND REJECTED THE APPLICANT'S APPLICATION .

17 AS A SUBSIDIARY POINT THE APPLICANT CLAIMS THAT THE SAID DECISION IS IRREGULAR IN THAT IT CONTAINS NO STATEMENT OF REASONS, CONSTITUTES A MISUSE OF POWERS AND WAS ADOPTED IN CONTRAVENTION OF ARTICLE 45 OF THE STAFF REGULATIONS .

18 AS TO THE FIRST SUBMISSION, THE APPLICANT MAINTAINS THAT THE INFORMATION SUPPLIED BY THE DEFENDANT BOTH IN THE MINUTES OF ITS 45TH MEETING AND IN ITS PLEADINGS GIVES NO INDICATION OF THE POINTS OF FACT OR OF LAW WHICH COULD JUSTIFY THE CONTESTED DECISION .

19 ARTICLE 45 OF THE STAFF REGULATIONS DOES NOT COMPEL THE APPOINTING AUTHORITY TO STATE THE REASONS FOR DECISIONS RELATING TO PROMOTION, IN PARTICULAR WITH REGARD TO UNSUCCESSFUL CANDIDATES .

20 IT IS FOR THE PARTY CLAIMING THAT SUCH A DECISION HAS NO ADEQUATE BASIS TO GIVE GROUNDS FOR OR SUPPLY PROOF OF HIS ALLEGATION .

21 SINCE THE APPLICANT HAS INDICATED THESE GROUNDS IN HIS SUBMISSIONS RELATING TO MISUSE OF POWERS AND INFRINGEMENT OF THE STAFF REGULATIONS, THESE COMPLAINTS WILL BE EXAMINED DURING DISCUSSION OF HIS OTHER CLAIMS .

22 SECONDLY, THE APPLICANT CLAIMS THAT THE DISPUTED DECISION PROMOTING MR FRISCH TO THE POST OF HEAD OF THE DIVISION OF DEVELOPMENT STUDIES CONSTITUTES A MISUSE OF POWERS BY REASON OF THE FACT THAT THE DECISION MAKING THE PROMOTION WAS TAKEN BEFORE THE OPENING OF THE PROCEDURE FOR MAKING THE APPOINTMENT .

23 IN SUPPORT OF THIS HE ALLEGES THAT CERTAIN PROMISES WERE MADE WITH REGARD TO THE PROMOTION IN QUESTION BOTH BY THE DIRECTOR-GENERAL OF DG VIII AND BY A MEMBER OF THE COMMISSION, AND THAT DOCUMENT SEC ( 68 ) 444 AND ITS ANNEXES SHOW THAT THE DECISION PROMOTING MR FRISCH WAS DRAWN UP BEFORE THE POST WAS OFFICIALLY ANNOUNCED TO BE VACANT .

24 THE APPLICANT CONFINES HIMSELF TO SAYING IN SUPPORT OF HIS COMPLAINT THAT THE ABOVEMENTIONED PROMISE WAS " COMMON KNOWLEDGE ", WITHOUT PROVIDING THE COURT WITH BETTER PARTICULARS CAPABLE OF CONSTITUTING PRIMA FACIE EVIDENCE .

25 ON THE OTHER HAND, THE FACTS ALLEGED MUST BE CONSIDERED IN THE CONTEXT OF THE TASK OF RE-ORGANIZATION FOLLOWING UPON THE MERGER OF THE EXECUTIVES .

26 IT WAS TO BE EXPECTED THAT DURING THESE PREPARATIONS DEPARTMENTS SHOULD CONSIDER THE DIFFERENT POSSIBILITIES AS TO THE PROMOTIONS, TRANSFERS OR APPOINTMENTS REQUIRED BY VIRTUE OF THIS GENERAL RE-ORGANIZATION .

27 THAT THE DOCUMENTS CRITICIZED WERE PURELY PREPARATORY DOCUMENTS WITH NO DECISIVE CHARACTER IS MADE CLEAR MOREOVER BY THE FACT THAT FOR A LARGE NUMBER OF OFFICIALS, INCLUDING MR FRISCH, A NUMBER OF NEW APPOINTMENTS OR PROMOTIONS WAS CONSIDERED .

28 IN ANY CASE THAT FACT CANNOT BE RELIED ON AS BEING OF SUCH A NATURE AS TO INDICATE A MISUSE OF POWERS IN THE PRESENT CASE .

29 LASTLY, THE APPLICANT CONSIDERS THAT THE HASTE WITH WHICH THE APPOINTING AUTHORITY ADOPTED THE DECISION TO MAKE THE PROMOTION IN QUESTION IS, TAKEN TOGETHER WITH OTHER FACTORS, A SUFFICIENT INDICATION TO ENABLE ONE TO CONCLUDE THAT THERE WAS A MISUSE OF POWERS IN THE PRESENT CASE .

30 IN THIS CONNEXION HE CLAIMS THAT THE SAID AUTHORITY DECLARED THE POST VACANT AND PROCEEDED TO MAKE THE CONTESTED PROMOTION BEFORE IT REPLIED TO HIS COMPLAINT THROUGH OFFICIAL CHANNELS, NOTWITHSTANDING THAT THE ADMINISTRATION HAD CONCEDED THAT IT WAS APPROPRIATE TO DELAY THE PUBLICATION OF VACANCY NOTICES UNTIL THE OFFICIALS CONCERNED HAD BEEN ABLE TO SUBMIT COMPLAINTS AGAINST THEIR APPOINTMENTS .

31 AS REGARDS THE DATE OF THE VACANCY NOTICE IT SHOULD BE REMARKED THAT THE FACTS IN THE CASE SHOW THAT VACANCY NOTICE COM/40 WAS PUBLISHED ON 13 JUNE 1968, WHEREAS IT WAS NOT UNTIL THE MEETING OF THE RELEVANT COMMITTEE ON 4 JULY 1968 THAT THE ADMINISTRATION AGREED TO DELAY PUBLICATION OF THE VACANCY NOTICES .

32 THE CONTESTED PROMOTION DECISION, HOWEVER, WAS NOT TAKEN UNTIL 17 JULY 1968, THREE WEEKS AFTER THE SUBMISSION OF THE COMPLAINT THROUGH OFFICIAL CHANNELS ON 24 JUNE 1968 .

33 WHILST SUCH A LAPSE OF TIME MAY NOT ALWAYS BE SUFFICIENT TO ENABLE THE APPOINTING AUTHORITY TO GIVE A REPLY TO THE COMPLAINT BEFORE IT, IT CAN, HOWEVER, BE CONSIDERED LONG ENOUGH FOR IT TO DECIDE WHAT POSITION TO ADOPT WITH REGARD TO THE COMPLAINT .

34 ON THOSE GROUNDS THE SUBMISSION OF MISUSE OF POWERS CANNOT BE HELD TO BE ESTABLISHED AND MUST THEREFORE BE REJECTED .

35 HOWEVER, THE CIRCUMSTANCES OF THIS CASE MAKE IT IMPERATIVE FOR THE COURT TO SATISFY ITSELF BY WAY OF A THOROUGH EXAMINATION THAT A COMPARATIVE EXAMINATION OF THE VARIOUS APPLICATIONS WAS IN FACT MADE ON THE OCCASION OF THIS PROMOTION .

36 THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION IS IRREGULAR IN THAT IT WAS ADOPTED WITHOUT THE COMMISSION'S HAVING CONSIDERED THE COMPARATIVE MERITS OF OFFICIALS ELIGIBLE FOR PROMOTION AND THE PERIODIC REPORTS CONCERNING THEM, AS REQUIRED BY ARTICLE 45(1 ) OF THE STAFF REGULATIONS .

37 THE MINUTES OF THE COMMISSION'S 45TH MEETING REVEAL THAT ALL THE APPLICATIONS WERE COMMUNICATED TO THE COMMISSION AFTER THE INFORMATION IN THEM HAD BEEN CHECKED, AND THAT THE PERIODIC REPORT AND THE PERSONAL FILE OF EACH CANDIDATE WAS AVAILABLE TO THE COMMISSION .

38 THE SAME MINUTES STATE THAT THE COMMISSION CONSIDERED THE COMPARATIVE MERITS OF THE APPLICANTS AND OF THE PERIODIC REPORTS ON THEM .

39 THE APPLICANT HAS SHOWN NO REASON WHY THIS SHOULD BE DOUBTED .

40 FURTHERMORE, AN EXAMINATION OF THE PERIODIC REPORTS ON THE APPLICANT AND ON THE SUCCESSFUL CANDIDATE JUSTIFIES THE CONCLUSION THAT THE PROMOTION DECISION IN QUESTION WAS NOT TAKEN WITHOUT DUE REGARD FOR, OR IN IGNORANCE OF, THE OBJECTIVE FACTS IN THE CASE .

41 ON THESE GROUNDS THIS SUBMISSION MUST BE REJECTED AS UNFOUNDED .

42 THE APPLICANT HAS FAILED IN HIS APPLICATION .

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

44 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN ACTIONS BY OFFICIALS OF THE COMMUNITIES .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION .

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .