61970J0055

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1 . OFFICIALS - RECRUITMENT - TRANSFER AND PROMOTION - LACK OF PRIORITY - DIFFERENCE OF GRADE BETWEEN CANDIDATES FOR A POST - NON-DECISIVE FACTOR IN THE CHOICE BY THE COMPETENT AUTHORITY

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 29 )

2 . OFFICIALS - RECRUITMENT - RATIONALIZATION OF DEPARTMENTS AS A RESULT OF THE MERGER TREATY - VOLUNTARY TRANSFER TO LOWER GRADE - PRIORITY RIGHT OF PERSON CONCERNED TO BE TRANSFERRED TO A POST CORRESPONDING TO HIS GRADE - STRICT APPLICATION

( REGULATION NO 259/68 OF THE COUNCIL, ARTICLE 8 )

1 . SINCE ARTICLE 29 OF THE STAFF REGULATIONS TREATS TRANSFER ON A PAR WITH PROMOTION, A DIFFERENCE IN GRADE BETWEEN CANDIDATES FOR A POST CANNOT PER SE CONSTITUTE A DECISIVE FACTOR IN THE CHOICE WHICH THE COMPETENT ADMINISTRATIVE AUTHORITY MUST MAKE .

2 . ARTICLE 8 ( 1 ) OF REGULATION NO 259/68 OF THE COUNCIL DEROGATES FROM THE PRINCIPLE OF EQUALITY OF CANDIDATES ELIGIBLE FOR PROMOTION AND TRANSFER AND CANNOT THEREFORE BE APPLIED, HAVING REGARD BOTH TO ITS VERY PRECISE OBJECTIVE AND ITS EXCEPTIONAL NATURE, IN CASES OTHER THAN THOSE TO WHICH IT EXPRESSLY REFERS .

IN CASE 55/70

ANDREAS REINARZ, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 3 GROENSTRAAT, TOURNEPPE ( BELGIUM ), REPRESENTED BY A . J . HAMMERSTEIN, ADVOCATE AT THE ARRONDISSEMENTSRECHTBANK, MAASTRICHT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF A . ELVINGER, ADVOCATE, 84 GRAND-RUE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, ASSISTED BY H . PH . VISSER' T HOOFT, A MEMBER OF THE LEGAL DEPARTMENT OF THE COMMISSION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, E . REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR AN ANNULMENT OF THE DECISION OF THE COMMISSION OF 17 JUNE 1970 BY WHICH MR DOUSSET WAS APPOINTED TO THE POST OF DIRECTOR IN THE DIRECTORATE-GENERAL FOR TRANSPORT,

1 BY APPLICATION FILED ON 11 SEPTEMBER 1970, THE APPLICANT HAS ASKED THE COURT " TO DECLARE NULL AND VOID OR, AT LEAST, ANNUL THE DECISION OF THE COMMISSION, OF UNKNOWN DATE, APPOINTING MR DOUSSET DIRECTOR IN THE DIRECTORATE-GENERAL FOR TRANSPORT ".

THE FIRST COMPLAINT

2 THE APPLICANT MAINTAINS THAT THE DECISION CHALLENGED INFRINGES ARTICLE 7 ( 1 ) AND THE THIRD PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS AND DISREGARDS THE PRINCIPLES LAID DOWN BY THE JUDGMENT OF 6 MAY 1969 AND IN CASE 17/68 IN VIEW OF THE FACT THAT THE DECISION IS INSPIRED SOLELY BY THE COMMISSION' S CONCERN TO MAINTAIN THE BALANCE ON A GEOGRAPHICAL BASIS OF THE ALLOCATION OF POSTS OF DIRECTOR IN THE DIRECTORATE-GENERAL FOR TRANSPORT, WITHOUT REGARD TO THE INTERESTS OF THE SERVICE .

3 THE APPLICANT BASES HIS COMPLAINT FIRST ON THE FACT THAT HE WAS ALREADY ESTABLISHED IN GRADE A2, WHEREAS THE OFFICIAL CHOSEN FOR THE POST OF DIRECTOR, WHICH WAS THE SUBJECT-MATTER OF THE PROCEDURE, HAD A LOWER GRADE .

4 ARTICLE 29 OF THE STAFF REGULATIONS TREATS TRANSFER ON A PAR WITH PROMOTION AND THEREFORE A DIFFERENCE IN GRADE BETWEEN CANDIDATES FOR A POST CANNOT PER SE CONSTITUTE A DECISIVE FACTOR IN THE CHOICE WHICH THE COMPETENT ADMINISTRATIVE AUTHORITY MUST MAKE .

5 IN CONTRAST TO THE CASE CONSIDERED IN THE ABOVEMENTIONED JUDGMENT OF 6 MAY 1969, THERE IS NOTHING IN THE PRESENT CASE TO SHOW THAT THE DECISION WAS DETERMINED BY CONSIDERATIONS RELATING TO THE NATIONALITY OF THOSE CONCERNED .

6 THE APPLICANT MAINTAINS FURTHER THAT IT APPEARS FROM THE MINUTES OF THE MEETING OF THE COMMISSION ON 17 JUNE 1970 THAT THE COMMISSION CONSIDERED ONLY THE QUALIFICATIONS OF CANDIDATES IN GRADE A3 AND THAT FURTHER THE DOCUMENTS OF 12 AND 16 JUNE 1970 RELATING TO THE SAME COMPETITION REFER TO FOUR APPLICATIONS INSTEAD OF THE SIX ACTUALLY LODGED, WHICH SHOWS THAT THE DECISION TO APPOINT MR DOUSSET HAD ALREADY BEEN TAKEN IN ADVANCE .

7 ALTHOUGH AT THE TIME OF THE COMPETITION THE COMMISSION DID NOT HAVE A PERIODIC REPORT ON THE APPLICANT, SINCE SUCH A REPORT IS NOT MADE IN RESPECT OF OFFICIALS OF GRADE A2, IT NEVERTHELESS APPEARS FROM THE MINUTES OF THE MEETING ON 17 JUNE 1970, AT WHICH THE DECISION IN QUESTION WAS TAKEN, THAT THE COMMISSION CONSIDERED THE COMPARATIVE MERITS AND QUALIFICATIONS OF ALL THE CANDIDATES, INCLUDING THOSE WHO WERE ALREADY CLASSIFIED IN GRADE A2 .

8 ACCORDINGLY THIS COMPLAINT IS UNFOUNDED .

THE SECOND COMPLAINT

9 THE APPLICANT ALLEGES INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT IN THAT THE DECISION CHALLENGED DOES NOT SHOW WHETHER THE COMMISSION TOOK INTO ACCOUNT THE JUDGMENTS GIVEN BY THE COURT ON 6 MAY 1969 AND 13 MAY 1970 IN THE ACTIONS PREVIOUSLY BROUGHT AGAINST IT BY MR REINARZ .

10 THE ONLY OBLIGATION ON THE COMMISSION UNDER THE TREATY WAS IN THE PRESENT CASE TO COMPLY WITH THE JUDGMENTS WHICH HAVE BEEN GIVEN, AND IT IS NOT DISPUTED THAT THIS HAS BEEN DONE .

11 ON THE OTHER HAND, THERE IS NO NECESSITY TO REFER TO IT IN THE DECISION IN QUESTION .

12 ACCORDINGLY THIS COMPLAINT IS UNFOUNDED .

THE THIRD COMPLAINT

13 THE APPLICANT MAINTAINS THAT THE DECISION CHALLENGED INFRINGES ARTICLE 8 ( 2 ) OF REGULATION NO 259/68 OF THE COUNCIL, FROM WHICH THERE IS TO BE INFERRED A PRIORITY RIGHT FOR THE APPLICANT TO BE APPOINTED TO THE POST IN QUESTION .

14 THIS ARTICLE PROVIDES THAT " AN OFFICIAL AFFECTED BY A DECISION TAKEN IN ACCORDANCE WITH THE SECOND SUBPARAGRAPH OF PARAGRAPH ( 1 ) SHALL RETAIN HIS GRADE AND ALL RIGHTS RELATING THERETO . HE SHALL HAVE A PRIORITY RIGHT OF TRANSFER TO ANY POST CORRESPONDING TO HIS GRADE WHICH MAY FALL VACANT OR BE CREATED PROVIDED THAT HE IS SUITABLE FOR THE POST IN QUESTION ".

15 THIS PROVISION, WHICH IS INTENDED TO COMPENSATE AN OFFICIAL WHO UNDER ARTICLE 8 ( 1 ) MAY HAVE BEEN TRANSFERRED TO A POST CORRESPONDING TO THE CAREER BRACKET IMMEDIATELY BELOW THAT APPLICABLE TO HIS GRADE, DEROGATES FROM THE PRINCIPLE OF EQUALITY OF CANDIDATES ELIGIBLE FOR PROMOTION AND TRANSFER AND CANNOT THEREFORE BE APPLIED, HAVING REGARD BOTH TO ITS VERY PRECISE OBJECTIVE AND ITS EXCEPTIONAL NATURE, IN CASES OTHER THAN THOSE TO WHICH IT EXPRESSLY REFERS .

16 SINCE THE APPLICANT HAS BEEN TRANSFERRED TO A POST CORRESPONDING TO HIS GRADE, HE CANNOT AVAIL HIMSELF OF THIS PROVISION .

17 ACCORDINGLY THIS COMPLAINT IS UNFOUNDED .

THE FOURTH COMPLAINT

18 THE APPLICANT MAINTAINS THAT THE DECISION CHALLENGED IS CONTRARY TO A GENERAL PRINCIPLE OF GOOD ADMINISTRATION REQUIRING THE ADMINISTRATIVE AUTHORITY TO REPAIR AS FAR AS POSSIBLE THE FAULT OR OMISSION OF WHICH IT HAS BEEN GUILTY .

19 THE DECISION APPOINTING MR DOUSSET, DATED 15 JANUARY 1969, WAS ANNULLED BY THE COURT BECAUSE WHEN THE COMMISSION MADE THIS APPOINTMENT IT DID NOT HAVE AT ITS DISPOSAL ALL THE FACTORS WHICH WOULD HAVE BEEN TAKEN INTO ACCOUNT IF BY ITS DECISION OF 26 JUNE 1968 CONCERNING THE TERMINATION OF THE APPLICANT' S SERVICES - A DECISION ANNULLED BY THE JUDGMENT OF 6 MAY 1969 - IT HAD NOT ILLEGALLY PREVENTED THE APPLICANT FROM APPLYING FOR THE POST TO WHICH MR DOUSSET HAD BEEN APPOINTED .

20 BY INITIATING DE NOVO THE PROCEDURE TO FILL THE POST IN QUESTION AND BY THUS GIVING THE APPLICANT THE OPPORTUNITY TO APPLY, THE COMMISSION DID WHAT WAS NECESSARY TO RECTIFY THE IRREGULARITY IN PROCEDURE ALREADY FOUND BY THE COURT .

21 ACCORDINGLY THIS COMPLAINT IS UNFOUNDED .

22 THE APPLICANT HAS FAILED IN HIS APPLICATION .

23 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

24 HOWEVER, ACCORDING TO ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS INVOLVING SERVANTS OF THE COMMUNITIES ARE PAYABLE BY THE FORMER .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .