61986J0167

++++

1 . Officials - Actions - Interest in bringing proceedings - Action against a decision affecting the applicant' s future financial position - No immediate damage - Admissibility

( Staff Regulations, Art . 91 )

2 . Officials - Organization of departments - Assignment of staff - Discretion of the administration - Limits - Interests of the service - Compliance with the principle of assignment to an equivalent post - Consideration of the interests of the official concerned

1 . Even in the absence of any immediate damage an action by an official against a decision affecting his future financial position is admissible because he has a legitimate, present and vested interest in having an uncertain factor in his status decided forthwith by the Court .

2 . Although the institutions have a broad discretion to organize their departments and to assign staff, the balance of rights and obligations established by the Staff Regulations in the relationship between the public authority and civil servants means that when the appointing authority takes a decision concerning the situation of an official it should take into consideration all the factors which may affect its decision and that in assigning an official it should take into account not only the interests of the service and the principle of assignment to an equivalent post but the rights and legitimate interests of the official concerned .

In Case 167/86

Marc Rousseau, an official of the Court of Auditors of the European Communities, represented by J . N . Louis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Y . Hamilius, 11 boulevard Royal,

applicant,

v

Court of Auditors of the European Communities, represented by M . Becker and M . Ekelmans, acting as Agents, assisted by J . A . Stoll, with an address for service in Luxembourg at the seat of the Court of Auditors, 29 rue Aldringen,

defendant,

APPLICATION for the annulment of the decision of the Court of Auditors of 16 September 1985 assigning drivers to the President' s department and the decision of the President of the Court of Auditors of 16 September 1985 assigning the applicant to the President' s department,

THE COURT ( Second Chamber )

composed of O . Due ( President of Chamber ), K . Bahlmann and T . F . O' Higgins, Judges,

Advocate General : Sir Gordon Slynn

Registrar : H . A . Ruehl, Principal Administrator

having regard to the Report for the Hearing and further to the hearing on 27 October 1987,

after hearing the Opinion of the Advocate General delivered at the sitting on 8 December 1987,

gives the following

Judgment

1 By application lodged at the Court Registry on 10 July 1986, Marc Rousseau, an official of the Court of Auditors of the European Communities, brought an action for the annulment of Decision 85-12 of the Court of Auditors of 16 September 1985 assigning drivers to the President' s department and the decision of the President of the Court of Auditors of 16 September 1985, adopted pursuant to Decision 85-12, assigning Mr Rousseau to the President' s department .

2 Following Internal Competition CC/D/2/81 of 1 September 1981 for a post of driver assigned to a Member of the Court of Auditors Mr Rousseau was appointed a probationary official by decision of 28 October 1981 as a driver assigned to a Member of that Court . He was subsequently established with effect from 1 May 1982 as a driver for a Member of the Court of Auditors . In that capacity he received in addition to his salary a flat-rate allowance for overtime pursuant to measures adopted by the Court of Auditors under Article 3 of Annex VI to the Staff Regulations .

3 By decision of 18 September 1985, adopted pursuant to the aforementioned contested decisions of 16 September 1985, Mr Rousseau was placed at the disposal of a Member of the Court of Auditors for an indefinite period not to exceed in any event the period of office of the Member . Article 2 of the decision provided that during that period he would receive the flat-rate allowance for overtime and thus there was no change in the allowance paid to him .

4 On 13 December 1985 the applicant sent a letter to the President of the Court of Auditors in which he observed that he had been recruited as a driver assigned to the office of a Member of the Court after passing a specific competition for that particular post . He observed that the contested decisions were inconsistent with the description of the post in the notice of competition and could have serious financial consequences inasmuch as he would lose the benefit of the flat-rate allowance for overtime should he no longer be assigned to a Member of the Court of Auditors . That letter was described as a "request" and referred to Article 90 ( 1 ) of the Staff Regulations .

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure, and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

Admissibility

6 The Court of Auditors contests the admissibility of the action . It argues in the first place that the applicant has no interest in bringing proceedings, since the action is based on a simple fear of a future contingency, that of losing the benefit of the flat-rate allowance for overtime . Secondly, it says the applicant has failed to comply with the preliminary procedure laid down in Article 90 ( 2 ) of the Staff Regulations .

7 With regard to the applicant' s interest in bringing proceedings it should be observed that the effect of the contested decisions is to place the applicant in a state of uncertainty regarding his financial situation in the event that he should cease to be assigned to a Member of the Court of Auditors . In those circumstances and in the light of the judgment of the Court of 1 February 1979 in Case 17/78 Deshormes v Commission (( 1979 )) ECR 189, the applicant must be held to have a legitimate, present, vested and sufficiently clear interest in having an uncertain factor in his status decided forthwith by the Court .

8 With regard to the alleged failure to comply with the preliminary procedure laid down in Article 90 ( 2 ) of the Staff Regulations, the fact that Mr Rousseau, who according to his evidence had no legal assistance at the relevant time, described his letter to the President of the Court of Auditors as a "request" under Article 90 ( 1 ) of the Staff Regulations cannot be considered decisive . It is clear from the terms of that letter that Mr Rousseau was protesting in a specific manner against the decisions adopted with regard to him, which had already entered into force . It thus constitutes a complaint within the meaning of Article 90 ( 2 ) of the Staff Regulations .

9 It follows that the action is admissible .

Substance

10 The applicant alleges that the contested decisions were adopted in breach of the Staff Regulations . Contrary to Article 4, the purpose of the change in his assignment was not to fill a vacant post . He has not been assigned within the meaning of Article 7 of the Staff Regulations since there has been no appointment or transfer to a post . In consequence he cannot be deprived of the flat-rate allowance for overtime to which he is entitled pursuant to the measures adopted by the Court of Auditors under Article 3 of Annex VI to the Staff Regulations . The change in his entitlement to the allowance in question and the risk of its discontinuance if he should cease to work for a Member of the Court of Auditors constitute an infringement of the principle of vested rights .

11 The Court of Auditors observes that an institution has a wide discretion in the assignment of staff on condition that staff are assigned in the interests of the service and in conformity with the principle of assignment to an equivalent post . In the present case, it says, the contested decisions were adopted not only in the interests of the service but also in the interests of the officials concerned . Since Article 3 of Annex VI to the Staff Regulations provides, in derogation from the normal rules, that because of special working conditions remuneration for overtime may be paid in the form of a flat-rate allowance without the need to provide proof of hours worked, it is in accordance with the Staff Regulations that officials who cease to work for a Member should also cease to receive the flat-rate allowance in question .

12 The Court has indeed held that the Community institutions have a broad discretion to organize their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition however that the staff are assigned in the interests of the service and in conformity with the principle of assignment to an equivalent post .

13 The Court has also consistently held that the Staff Regulations establishes a balance of reciprocal rights and obligations in the relationship between the public authority and civil servants; when the appointing authority takes a decision concerning the situation of an official it should take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official concerned ( see the judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner v Commission (( 1980 )) ECR 1677 ). The question which thus arises is whether the contested decisions infringe the applicant' s rights and legitimate interests .

14 Although Notice of Competition CC/D/2/81 described the post in question simply as "a post of driver in Career Bracket D 3/2" and specified only under the heading "Nature of duties" that the driver was to be assigned to a Member of the Court of Auditors, the decisions appointing Mr Rousseau as a probationary official and establishing him in the post show that he was appointed a probationary official and established as a driver for a Member of the Court of Auditors .

15 It is common ground that when the applicant was appointed the Court of Auditors had already established a system of flat-rate allowances for overtime pursuant to Article 3 of Annex VI to the Staff Regulations for drivers of Members of the Court of Auditors . It follows that when the applicant was appointed a driver for a Member the flat-rate allowance for overtime was part of his salary .

16 The combined effect of the contested decisions is clearly to make the applicant' s entitlement to the said flat-rate allowance for overtime uncertain so long as the measures providing for such an allowance are in force . That is so because the applicant' s assignment to a Member of the Court of Auditors pursuant to the terms of the individual decision of 18 September 1985 adopted following the contested decisions of 16 September 1985 is only temporary and the applicant may be assigned to other duties to which the flat-rate allowance for overtime does not apply . Since the applicant was appointed a driver to a Member and not simply a driver without a particular assignment after the system of flat-rate overtime allowances for drivers of Members came into force, he is entitled to the benefit of that allowance so long as the measures adopted in that respect by the Court of Auditors remain applicable . Consequently, the Court of Auditors, in adopting the contested decisions, did not take sufficient account of the applicant' s rights and legitimate interests .

17 Decision 85-12 of the Court of Auditors of 16 September 1985 assigning drivers to the President' s department and the decision of the President of the Court of Auditors of 16 September 1985, adopted pursuant to Decision 85-12, assigning Mr Rousseau to the President' s department must therefore be annulled .

Costs

18 Pursuant to Article 69 ( 2 ) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs . Since the Court of Auditors has failed in its submissions it must be ordered to pay the costs .

On those grounds,

THE COURT ( Second Chamber )

hereby :

( 1 ) Annuls Decision 85-12 of the Court of Auditors of 16 September 1985 assigning drivers to the President' s department and the decision of the President of the Court of Auditors of 16 September 1985, adopted pursuant to Decision 85-12, assigning Mr Rousseau to the President' s department .

( 2 ) Orders the Court of Auditors to pay the costs .