61984J0173

1 . OFFICIALS - APPEALS - PRIOR ADMINISTRATIVE COMPLAINT - SAME SUBJECT-MATTER AND LEGAL BASIS

( STAFF REGULATIONS , ARTS 90 AND 91 )

2 . OFFICIALS - ASSIGNMENT - DISCRETION OF APPOINTING AUTHORITY - EXTENT - OBLIGATION OF OFFICIAL TO ACCEPT ANY ASSIGNMENT TO WORK CORRESPONDING TO HIS GRADE

( STAFF REGULATIONS , ART . 7 )

1 . BY PROVIDING THAT AN APPEAL TO THE COURT OF JUSTICE IS TO LIE ONLY IF THE APPOINTING AUTHORITY HAS PREVIOUSLY HAD A COMPLAINT SUBMITTED TO IT AND THAT COMPLAINT HAS BEEN REJECTED , ARTICLE 91 OF THE STAFF REGULATIONS SEEKS TO ENABLE AND ENCOURAGE AN AMICABLE SETTLEMENT TO BE REACHED OF THE DIFFERENCE WHICH HAS ARISEN BETWEEN OFFICIALS OR SERVANTS AND THE ADMINISTRATION ; IN ORDER TO COMPLY WITH THIS REQUIREMENT , IT IS ESSENTIAL THAT THE ADMINISTRATION BE IN A POSITION TO KNOW THE COMPLAINTS OR REQUESTS OF THE PERSON CONCERNED . BUT IT IS NOT THE PURPOSE OF THAT PROVISION TO BIND STRICTLY AND ABSOLUTELY THE CONTENTIOUS STAGE OF THE PROCEEDINGS , IF ANY , PROVIDED THAT THE CLAIMS SUBMITTED AT THAT STAGE CHANGE NEITHER THE LEGAL BASIS NOR THE SUBJECT-MATTER OF THE COMPLAINT .

2 . ARTICLE 7 OF THE STAFF REGULATIONS CONFERS UPON THE APPOINTING AUTHORITY A VERY WIDE DISCRETION IN THE ASSIGNMENT OF AN OFFICIAL , IN THE INTERESTS OF THE SERVICE , TO A POST IN HIS CATEGORY OR SERVICE CORRESPONDING TO HIS GRADE . AN OFFICIAL IS OBLIGED TO ACCEPT ANY ASSIGNMENT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SERVICE , ANYWHERE IN THE COMMUNITY , IN ANY PLACE OF EMPLOYMENT WITHIN THE INSTITUTION WHICH HE SERVES , SUBJECT TO HIS RIGHT TO REQUIRE THAT THE DUTIES ASSIGNED TO HIM CORRESPOND TO HIS GRADE AND BASIC POST .

IN PARTICULAR IT IS NOT CONTRARY TO ARTICLE 7 OF THE STAFF REGULATIONS FOR AN OFFICIAL TO BE ASSIGNED TO WORK WHICH , THOUGH DIFFERENT FROM THAT WHICH HE WAS ORIGINALLY CARRYING OUT , IS NOT INCOMPATIBLE WITH HIS GRADE AND IS INTENDED TO PROVIDE HIM WITH A NEW CAREER OPENING .

IN CASE 173/84

LARS BO RASMUSSEN , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT DALHEIM ( LUXEMBOURG ), REPRESENTED BY JEAN-NOEL LOUIS , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER , 16 AVENUE MARIE-THERESE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , HENRI ETIENNE , AND ITS LEGAL ADVISER , DIMITRIOS GOULOUSSIS , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES KREMLIS , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION REFUSING TO REINSTATE THE APPLICANT IN HIS POST IMMEDIATELY AND FOR DAMAGES ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 2 JULY 1984 , LARS BO RASMUSSEN , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN GRADE A6 , HAS BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 27 JUNE 1984 IN SO FAR AS IT REFUSED TO REINSTATE HIM IN THE POST WHICH HE ORIGINALLY OCCUPIED AND FOR A DECLARATION THAT THE COMMISSION SHOULD ASSIGN HIM TO AN ACTUAL POST IN HIS CATEGORY , CORRESPONDING TO HIS GRADE , EXPERIENCE AND QUALIFICATIONS , AND , IF IT FAILS TO COMPLY WITH THAT OBLIGATION , SHOULD PAY HIM A DAILY ALLOWANCE TO BE FIXED BY THE COURT . THE APPLICANT FURTHER CLAIMS APPROPRIATE COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH HE HAS SUFFERED OWING TO THE IRREGULARITIES IN HIS ADMINISTRATIVE SITUATION WHICH HAVE DISRUPTED THE NORMAL DEVELOPMENT OF HIS CAREER .

THE FACTS OF THE CASE

2 THE APPLICANT , WHO HAS A DEGREE IN ECONOMICS AND POLITICAL SCIENCE , WAS APPOINTED ON 1 MARCH 1975 AS AN ADMINISTRATOR IN GRADE A6 IN THE OFFICE FOR OFFICIAL PUBLICATIONS OF THE EUROPEAN COMMUNITIES , WHERE HE WAS GIVEN RESPONSIBILITY IN THE PUBLICATIONS DIVISION FOR DRAWING UP THE MONTHLY AND ANNUAL ALPHABETICAL INDEXES AND METHODOLOGICAL TABLES OF THE OFFICIAL JOURNAL .

3 OWING TO THE INTRODUCTION OF NEW WORKING METHODS INTO THE PUBLICATIONS OFFICE , FOLLOWING IN PARTICULAR THE COMPUTERIZATION OF THE SYSTEM BY WHICH THE INDEX WAS PREPARED , AND BECAUSE PROSPECTS OF PROMOTION WERE LIMITED , ATTEMPTS WERE MADE TO FIND A NEW CAREER OPENING FOR THE APPLICANT . WITH THE APPLICANT ' S AGREEMENT , THE DIRECTOR OF THE PUBLICATIONS OFFICE ARRANGED WITH THE DIRECTOR-GENERAL OF THE STATISTICAL OFFICE FOR THE APPLICANT TO WORK IN THE STATISTICAL OFFICE FOR A PERIOD OF ONE YEAR FROM 15 MARCH 1980 . FOR ADMINISTRATIVE PURPOSES THE APPLICANT WAS STILL ATTACHED TO THE PUBLICATIONS OFFICE , WHICH CONTINUED TO PAY HIS SALARY . THE ARRANGEMENT PLACING HIM AT THE DISPOSAL OF THE STATISTICAL OFFICE WAS BASED PURELY ON AN AGREEMENT BETWEEN THE TWO DIRECTORATES-GENERAL CONCERNED AND WAS EXTENDED ON 17 MARCH 1982 , PENDING A PERMANENT ADMINISTRATIVE SOLUTION .

4 ON NUMEROUS OCCASIONS THE APPLICANT EXPRESSED CONCERN AT HIS UNCERTAIN AND PRECARIOUS ADMINISTRATIVE SITUATION , WHICH IN HIS VIEW WAS DETRIMENTAL TO THE DEVELOPMENT OF HIS CAREER , AND REQUESTED THAT HE SHOULD BE OFFICIALLY ASSIGNED TO THE STATISTICAL OFFICE .

5 WITH EFFECT FROM 15 MARCH 1983 , THE NEW DIRECTOR OF THE STATISTICAL OFFICE TERMINATED THE ARRANGEMENT ON THE GROUND THAT THE APPLICANT ' S OUTPUT WAS INADEQUATE . ON PROFESSIONAL AND PERSONAL GROUNDS THE APPLICANT REFUSED VARIOUS POSTS WHICH WERE OFFERED TO HIM , SUCH AS AN ASSIGNMENT TO THE CONSULTATIVE COMMITTEE OF THE EUROPEAN COAL AND STEEL COMMUNITY AND A TRANSFER TO DIRECTORATE-GENERAL V IN BRUSSELS .

6 IN 1983 HE AGREED TO BE ASSIGNED TO THE TRANSLATION SERVICE IN DIRECTORATE-GENERAL IX IN LUXEMBOURG , WITH A VIEW TO PREPARING FOR AN INTERNAL COMPETITION WHICH WOULD ENABLE HIM TO BE TRANSFERRED TO THE LANGUAGE SERVICE . IN JULY OF THE SAME YEAR , HOWEVER , HE REFUSED TO SIT THE L/A COMPETITION WHICH , ACCORDING TO THE COMMISSION , HAD BEEN ARRANGED ESPECIALLY FOR HIM , STATING THAT HE WOULD PREFER HIS ADMINISTRATIVE SITUATION TO BE REGULARIZED WITHIN CATEGORY A .

7 DURING THE PERIOD IN WHICH THE APPLICANT WAS PLACED AT THE DISPOSAL OF THE STATISTICAL OFFICE AND WHILE HE WAS ASSIGNED TO DIRECTORATE-GENERAL IX , PERIODIC REPORTS CONTAINING A DESCRIPTION OF HIS DUTIES AND AN ASSESSMENT OF THE WORK WHICH HE CARRIED OUT WERE DULY MADE ON HIM AND WERE ON THE WHOLE FAVOURABLE . HE WAS RECOMMENDED FOR PROMOTION TO GRADE A5 IN THE 1983 FINANCIAL YEAR .

8 ON 30 NOVEMBER 1983 THE APPLICANT SUBMITTED A COMPLAINT TO THE SECRETARY-GENERAL OF THE COMMISSION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS , IN WHICH HE REQUESTED THE COMMISSION :

TO REGULARIZE HIS ADMINISTRATIVE SITUATION ;

TO GIVE HIM THE PROMOTION TO GRADE A5 FOR WHICH HE WAS ELIGIBLE .

9 IN ITS REPLY OF 27 JUNE 1984 , AGAINST WHICH THE PRESENT APPLICATION IS DIRECTED , THE COMMISSION ACKNOWLEDGED THAT THE EFFORTS MADE HAD NOT YET ENABLED THE APPLICANT TO BE ASSIGNED TO A POST CORRESPONDING TO HIS EXPERIENCE AND QUALIFICATIONS ; HOWEVER , IT DREW HIS ATTENTION TO A NOTICE OF AN INTERNAL COMPETITION FOR AN L/A7 - L/A6 POST IN THE DANISH SECTION OF THE TRANSLATION SERVICE IN LUXEMBOURG .

ADMISSIBILITY

10 THE COMMISSION CONTENDS THAT THE APPLICATION IS INADMISSIBLE ON TWO GROUNDS .

11 IT CLAIMS THAT THE APPLICATION IS INADMISSIBLE IN SO FAR AS IT SEEKS THE APPLICANT ' S REINSTATEMENT IN HIS FORMER POST IN THE PUBLICATIONS OFFICE , SINCE SUCH A REQUEST WAS NOT MADE IN HIS COMPLAINT TO THE COMMISSION AND WAS THEREFORE NOT REJECTED BY THE COMMISSION .

12 AS THE COURT HELD IN ITS JUDGMENT OF 1 JULY 1976 IN CASE 58/75 ( SERGY V COMMISSION ( 1976 ) ECR 1139 ), THE OBJECT OF ARTICLE 91 OF THE STAFF REGULATIONS IS TO ENABLE AND ENCOURAGE AN AMICABLE SETTLEMENT TO BE REACHED OF THE DIFFERENCE WHICH HAS ARISEN BETWEEN OFFICIALS OR SERVANTS AND THE ADMINISTRATION , AND , IN ORDER TO COMPLY WITH THIS REQUIREMENT , IT IS ESSENTIAL THAT THE ADMINISTRATION BE IN A POSITION TO KNOW THE COMPLAINTS OR REQUESTS OF THE PERSON CONCERNED ; IT IS NOT THE PURPOSE OF THAT PROVISION TO BIND STRICTLY AND ABSOLUTELY THE CONTENTIOUS STAGE OF THE PROCEEDINGS , IF ANY , PROVIDED THAT THE CLAIMS SUBMITTED AT THAT STAGE CHANGE NEITHER THE LEGAL BASIS NOR THE SUBJECT-MATTER OF THE COMPLAINT .

13 ALTHOUGH THE APPLICANT DOES NOT EXPRESSLY ASK IN HIS COMPLAINT TO BE REINSTATED IN HIS FORMER POST , SUCH A REQUEST IS IMPLICIT IN THE GENERAL REQUEST FOR HIS ADMINISTRATIVE SITUATION TO BE REGULARIZED . AS NO FORMAL ADMINISTRATIVE MEASURE PROVIDED FOR BY THE STAFF REGULATIONS HAS BEEN ADOPTED TO TRANSFER THE APPLICANT IN ACCORDANCE WITH THE PRESCRIBED PROCEDURE TO ANOTHER DEPARTMENT , AND IN THE LIGHT OF HIS PREVIOUS REPRESENTATIONS , THE COMMISSION COULD NOT HAVE BEEN UNAWARE THAT , BY ASKING FOR HIS ADMINISTRATIVE SITUATION TO BE REGULARIZED , THE APPLICANT MEANT THAT A POST SHOULD BE FOUND CORRESPONDING TO HIS CATEGORY AND GRADE , IN THE FIRST INSTANCE IN THE ADMINISTRATIVE UNIT TO WHICH OFFICIALLY HE HAS ALWAYS BEEN ASSIGNED .

14 CONSEQUENTLY THE REQUIREMENTS SET OUT IN ARTICLE 91 OF THE STAFF REGULATIONS ARE SATISFIED AND THE FIRST PLEA OF INADMISSIBILITY MUST BE DISMISSED .

15 SECONDLY , THE COMMISSION CLAIMS THAT ITS DECISION OF 27 JUNE 1984 DID NOT ADVERSELY AFFECT THE APPLICANT ; IT HAD ACCEDED TO HIS REQUEST BY INFORMING HIM THAT AN INTERNAL COMPETITION HAD BEEN ARRANGED FOR A TRANSLATOR ' S POST AND BY THUS AFFORDING HIM AN OPPORTUNITY OF OBTAINING A POST CORRESPONDING TO HIS ABILITIES .

16 THE APPLICANT STATES THAT HE WAS RECRUITED AS AN ADMINISTRATOR IN AN ADMINISTRATIVE DEPARTMENT AND DENIES THAT THE OPPORTUNITY OF SITTING A COMPETITION FOR A POST AS A TRANSLATOR AMOUNTED IN HIS CASE TO A RESPONSE TO HIS REQUEST THAT HE SHOULD BE GIVEN AN ACTUAL POST CORRESPONDING TO HIS GRADE AND ABILITIES , IN VIEW OF THE FACT THAT HIS UNIVERSITY EDUCATION DID NOT FIT HIM FOR WORK AS A TRANSLATOR .

17 THE ARGUMENTS PUT FORWARD BY BOTH SIDES NECESSITATE AN ASSESSMENT OF THE MERITS OF THE APPLICATION WHICH IS CLEARLY PART OF THE SUBSTANCE , AND SHOULD THEREFORE NOT BE CONSIDERED AT THIS STAGE OF THE DISCUSSION WHICH CONCERNS ADMISSIBILITY .

18 CONSEQUENTLY , THE SECOND PLEA OF INADMISSSIBILITY IS DISMISSED .

SUBSTANCE

19 IN SUPPORT OF HIS APPLICATION , THE APPLICANT RELIES BASICALLY ON THE FOLLOWING FOUR SUBMISSIONS :

( I ) FAILURE TO ASSIGN HIM TO DUTIES CORRESPONDING TO THE GRADE WHICH HE HOLDS IN HIS CATEGORY , CONTRARY TO ARTICLES 5 AND 7 OF THE STAFF REGULATIONS OF OFFICIALS ;

( II)INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT , INASMUCH AS THE DECISION POSTING HIM TO THE PUBLICATIONS OFFICE AND THE SUBSEQUENT DECISIONS WERE NOT CONTAINED IN ANY INDIVIDUAL DECISION COMMUNICATED TO HIM IN WRITING AND STATING THE GROUNDS ON WHICH IT WAS BASED , OR POSTED IN THE COMMISSION ' S PREMISES OR PUBLISHED IN THE MONTHLY STAFF BULLETIN , CONTRARY TO ARTICLE 25 OF THE STAFF REGULATIONS OF OFFICIALS ;

( III)INFRINGEMENT OF ARTICLE 38 OF THE STAFF REGULATIONS OF OFFICIALS AND THE PRINCIPLE THAT LEGITIMATE EXPECTATIONS SHOULD BE PROTECTED , IN THAT HE WAS ENTITLED TO BELIEVE THAT HE WAS BEING TEMPORARILY SECONDED , AS PROVIDED FOR BY ARTICLE 37 , AND WOULD BE REINSTATED IN HIS FORMER POST WHEN HIS SECONDMENT ENDED ;

( IV)INFRINGEMENT OF ARTICLE 45 OF THE STAFF REGULATIONS OF OFFICIALS AND OF THE PRINCIPLE OF NON-DISCRIMINATION , BECAUSE THE FAILURE TO ASSIGN HIM TO A POST CORRESPONDING TO HIS CATEGORY AND GRADE MADE IT IMPOSSIBLE FOR HIM TO UNDERTAKE RESPONSIBILITIES WHICH ALLOWED HIS MERITS TO BE COMPARED WITH THOSE OF OTHER OFFICIALS FOR THE PURPOSES OF PROMOTION .

SUBMISSIONS ON THE INFRINGEMENT OF ARTICLES 5 AND 7 OF THE STAFF REGULATIONS

20 THE APPLICANT DOES NOT DENY THE NEED TO FIND A NEW CAREER OPENING FOR HIM , FOLLOWING THE RESTRUCTURING AND COMPUTERIZATION OF THE PUBLICATIONS OFFICE , BUT HE COMPLAINS THAT THE COMMISSION DID NOT FIND HIM A POST IN HIS CATEGORY CORRESPONDING TO HIS GRADE AND TRAINING .

21 THE APPLICANT ALSO CLAIMS THAT THE POSTS TO WHICH HE WAS SUBSEQUENTLY ASSIGNED DID NOT REQUIRE HIM TO CARRY OUT ANY ACTUAL WORK . THE TRANSLATION WORK WHICH HE WAS REQUIRED TO CARRY OUT IN DIRECTORATE-GENERAL IX OCCUPIED HIM FOR BARELY ONE HOUR PER DAY . THUS THE COMMISSION INFRINGED THE GENERAL PRINCIPLE OF THE RIGHT TO WORK .

22 THE COMMISSION CONTENDS THAT THE APPLICANT WAS AWARE THAT IT WAS NO LONGER POSSIBLE FOR HIS CAREER TO DEVELOP IN THE NORMAL WAY IN THE PUBLICATIONS OFFICE AND WILLINGLY ACCEPTED THE VARIOUS POSTS IN OTHER DEPARTMENTS TO WHICH HE WAS PROVISIONALLY ASSIGNED , WITH A VIEW TO FINDING A PERMANENT POSITION FOR HIM IN ANOTHER DEPARTMENT OR SERVICE . BECAUSE OF HIS LINGUISTIC ABILITY , HE WAS PARTICULARLY SUITED TO A CAREER IN THE LANGUAGE SERVICE . AFTER LEAVING THE PUBLICATIONS OFFICE HE HAD ALWAYS BEEN ASSIGNED TO WORK CORRESPONDING TO HIS TRAINING AND ESPECIALLY HIS ABILITIES . THE COMMISSION HAD SATISFIED ITS OBLIGATIONS BY INFORMING THE APPLICANT OF THE VARIOUS CAREER OPENINGS AVAILABLE TO HIM AND FACILITATING A TRANSFER , IF NECESSARY . ALTHOUGH NO SOLUTION HAS YET BEEN FOUND , THE COMMISSION CONSIDERS THAT THAT IS BECAUSE OF THE APPLICANT ' S REFUSAL TO COOPERATE AND MAKE THE NECESSARY EFFORT AND ENDEAVOURS HIMSELF .

23 ACCORDING TO THE COMMISSION , AN OFFICIAL IS NOT ENTITLED TO A PARTICULAR POST AND MAY BE ASSIGNED TO ANY POST IN HIS CATEGORY WHICH IS CONSIDERED SUITABLE BY THE APPOINTING AUTHORITY IN THE INTERESTS OF THE SERVICE . THE COMMISSION IS NOT BOUND TO ACHIEVE ANY PARTICULAR RESULT AND FULFILLED ITS OBLIGATIONS BY MAKING EVERY EFFORT TO ENABLE THE APPLICANT TO APPLY FOR A POST WHICH WAS APPROPRIATE TO HIS TRAINING AND KNOWLEDGE .

24 ALTHOUGH THE COURT ACCEPTED IN ITS JUDGMENT OF 21 MAY 1981 IN CASE 60/80 ( KINDERMAN V COMMISSION ( 1981 ) ECR 1329 ) THAT ARTICLE 7 OF THE STAFF REGULATIONS CONFERS UPON THE APPOINTING AUTHORITY A VERY WIDE DISCRETION IN THE ASSIGNMENT OF AN OFFICIAL , IN THE INTERESTS OF THE SERVICE , TO A POST IN HIS CATEGORY OR SERVICE CORRESPONDING TO HIS GRADE , IT HAS NEVERTHELESS RECOGNIZED , IN ITS JUDGMENT OF 22 OCTOBER 1981 IN CASE 218/80 ( KRUSE V COMMISSION ( 1981 ) ECR 2417 ), THAT AN OFFICIAL IS ENTITLED TO REQUIRE THAT THE DUTIES ASSIGNED TO HIM CORRESPOND TO HIS GRADE AND BASIC POST .

25 SUBJECT TO THAT RESERVATION , AN OFFICIAL IS OBLIGED TO ACCEPT ANY ASSIGNMENT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SERVICE , ANYWHERE IN THE COMMUNITY , IN ANY PLACE OF EMPLOYMENT WITHIN THE INSTITUTION IN WHICH HE SERVES ( SEE JUDGMENT OF 24 FEBRUARY 1981 IN JOINED CASES 161 AND 162/80 CARBOGNANI V COMMISSION ( 1981 ) ECR 543 ). THE COURT RECOGNIZED IN ITS JUDGMENTS OF 28 MAY 1970 IN CASE 36/69 ( PECO V COMMISSION ( 1970 ) ECR 361 ) AND OF 28 SEPTEMBER 1983 IN JOINED CASES 193 TO 198/82 ( ROSANI AND OTHERS V COUNCIL ( 1983 ) ECR 2841 ) THAT THE APPOINTING AUTHORITY IS ENTITLED TO EXPECT SENIOR OFFICIALS TO BE SUFFICIENTLY ADAPTABLE TO FILL POSTS OF DIFFERENT KINDS . IT SHOULD ALSO BE NOTED THAT THE DUTIES WHICH THE APPLICANT ORIGINALLY CARRIED OUT AND IN WHICH HE WISHES TO BE REINSTATED NO LONGER EXIST AND THAT THE POST WHICH HE ORIGINALLY OCCUPIED NOW REQUIRES , FOLLOWING THE RE-ORGANIZATION OF THE DEPARTMENT , DIFFERENT TRAINING FROM THAT WHICH WAS REQUIRED AT THE TIME WHEN THE APPLICANT WAS ENGAGED . THE APPLICANT WAS RECRUITED IN CATEGORY A AND CERTAINLY SHOULD HAVE BEEN SUFFICIENTLY ADAPTABLE . MOREOVER , HIS PERIODIC REPORTS MAKE PARTICULAR MENTION OF HIS COMMAND OF SEVERAL COMMUNITY LANGUAGES . THE APPLICANT NEVER REFUSED TO CARRY OUT THE WORK ENTRUSTED TO HIM , IN PARTICULAR THE WORK IN THE LANGUAGE FIELD , BUT ON THE CONTRARY SOUGHT TO DIRECT HIS CAREER TOWARDS A TRANSFER TO THE LANGUAGE SERVICE , EVEN AS EARLY AS 1978 WHEN HE APPLIED FOR AN INTERNAL COMPETITION FOR A POST AS A REVISER . HIS SUBSEQUENT REFUSAL TO SIT COMPETITIONS FOR THE LANGUAGE SERVICE SEEMS TO BE PRIMARILY DUE TO HIS DESIRE TO BE PROMOTED TO GRADE A5 . UNDER THOSE CIRCUMSTANCES , THE COMMISSION CANNOT BE BLAMED FOR HAVING ASSIGNED THE APPLICANT TO WORK IN THE LANGUAGE FIELD , WHICH , THOUGH DIFFERENT FROM THE WORK WHICH HE WAS ORIGINALLY CARRYING OUT , WAS NOT INCOMPATIBLE WITH HIS GRADE AND WOULD ALSO PROVIDE HIM WITH A NEW CAREER OPENING .

26 THE APPLICANT WAS AWARE OF THE NEED TO FIND A NEW CAREER OPENING AND , AS THE COURT REQUIRED IN ITS JUDGMENT OF 5 MAY 1983 IN CASE 785/79 ( PIZZIOLO V COMMISSION ( 1983 ) ECR 1343 ), AS REGARDS THE REINSTATEMENT OF OFFICIALS UPON THE EXPIRY OF LEAVE ON PERSONAL GROUNDS , OUGHT TO SHOW THAT HE HAS MADE REASONABLE EFFORTS TO LOOK FOR OTHER POSTS . IT IS CLEAR FROM THE FILE THAT ALTHOUGH THE APPLICANT ACCEPTED THE PROVISIONAL POSTINGS , HE NEVER ACTIVELY COOPERATED IN FINDING A PERMANENT SOLUTION BUT REFUSED TO APPLY FOR POSTS WHICH WERE BROUGHT TO HIS ATTENTION .

27 AS REGARDS THE SUBMISSION THAT THE COMMISSION INFRINGED THE GENERAL PRINCIPLE OF THE RIGHT TO WORK BY NOT PROVIDING THE APPLICANT WITH ANY ACTUAL WORK , IN PARTICULAR FOLLOWING HIS ASSIGNMENT TO DIRECTORATE-GENERAL IX , IT SHOULD BE STATED - WITHOUT GOING INTO THE QUESTION WHETHER SUCH A PRINCIPLE EXISTS IN COMMUNITY LAW - THAT IT IS CLEAR FROM A NOTE DATED 22 OCTOBER 1985 FROM THE ACTING HEAD OF THE DANISH TRANSLATION DIVISION IN DIRECTORATE-GENERAL IX , WHICH WAS PUT BEFORE THE COURT AT THE HEARING , THAT THE APPLICANT TRANSLATED ABOUT 40 PAGES PER MONTH . ALTHOUGH IT IS DIFFICULT TO ASSESS THE NUMBER OF PAGES THAT A TRANSLATOR IS CAPABLE OF TRANSLATING , SINCE THAT DEPENDS IN PARTICULAR UPON THE DEGREE OF DIFFICULTY AND THE TECHNICAL NATURE OF THE DOCUMENTS CONCERNED , IT NEVERTHELESS CANNOT BE SAID THAT THE APPLICANT WAS LEFT WITHOUT ANY ACTUAL WORK DURING HIS ASSIGNMENT TO DIRECTORATE-GENERAL IX . IN ASSESSING THE VOLUME OF WORK ENTRUSTED TO THE APPLICANT , ACCOUNT SHOULD ALSO BE TAKEN OF THE FACT THAT IN THIS CASE THE APPLICANT DID NOT HOLD A SPECIFIC TRANSLATOR POST BUT WAS MERELY PLACED IN A LANGUAGE DEPARTMENT IN ORDER TO ENABLE HIM TO BECOME ACQUAINTED WITH THE WORK , SO THAT HE COULD APPLY FOR A POST IN THE LANGUAGE SERVICE .

28 CONSEQUENTLY THE SUBMISSION IS UNFOUNDED IN FACT .

SUBMISSION ON THE INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT ( ARTICLE 25 OF THE STAFF REGULATIONS )

29 THE APPLICANT CLAIMS THAT UNDER ARTICLE 25 OF THE STAFF REGULATIONS THE MEASURES ASSIGNING HIM TO THE STATISTICAL OFFICE AND LATER TO DIRECTORATE GENERAL IX , AND THE MEASURE REFUSING TO REINSTATE HIM IN THE PUBLICATIONS OFFICE CONSTITUTE DECISIONS WHICH SHOULD STATE THE GROUNDS ON WHICH THEY ARE BASED AND SHOULD HAVE BEEN POSTED IN THE PREMISES OF THE INSTITUTION TO WHICH BE BELONGS AND PUBLISHED IN THE MONTHLY STAFF BULLETIN OF THE COMMUNITIES .

30 THE COMMISSION DENIES THAT ARTICLE 25 IS APPLICABLE ON THE GROUND THAT THE MEASURES IN QUESTION , WHICH WERE ESSENTIALLY TEMPORARY , DID NOT CONSTITUTE DECISIONS RELATING TO A SPECIFIC INDIVIDUAL WITHIN THE MEANING OF ARTICLE 25 AND DID NOT ADVERSELY AFFECT THE APPLICANT . MOREOVER , IN EACH CASE HE AGREED TO THE VARIOUS MEASURES ADOPTED , THE NATURE OF WHICH AND REASONS FOR WHICH WERE KNOWN TO HIM .

31 IT IS CLEAR FROM AN ASSESSMENT OF THE FACTS THAT THE SUCCESSIVE MEASURES ASSIGNING THE APPLICANT ARE NOT SPECIFIC DECISIONS REGARDING APPOINTMENT , ESTABLISHMENT , PROMOTION , TRANSFER , TERMINATION OF ADMINISTRATIVE STATUS OR TERMINATION OF SERVICE OF AN OFFICIAL WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 25 . THOSE MEASURES , RELATING TO THE INTERNAL ORGANIZATION OF THE SERVICE AND ADOPTED WITH THE APPLICANT ' S COMPLETE AGREEMENT , DID NOT IN ANY WAY ALTER HIS LEGAL POSITION AND DO NOT CONSTITUTE DECISIONS ADVERSELY AFFECTING HIM WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 25 .

32 CONSEQUENTLY ARTICLE 25 IS NOT APPLICABLE AND THE SUBMISSION MUST BE REJECTED .

SUBMISSION ON THE INFRINGEMENT OF ARTICLE 38 OF THE STAFF REGULATIONS

33 THE APPLICANT CLAIMS THAT TO ALL APPEARANCES HIS ASSIGNMENT TO THE STATISTICAL OFFICE AND SUBSEQUENTLY TO DIRECTORATE-GENERAL IX CONSTITUTED SECONDMENT WITHIN THE MEANING OF ARTICLE 37 ( 1 ) ( A ) OF THE STAFF REGULATIONS . BY VIRTUE OF THE PRINCIPLE THAT LEGITIMATE EXPECTATIONS SHOULD BE PROTECTED , HE CLAIMS THAT HE WAS ENTITLED TO EXPECT THE COMMISSION TO REINSTATE HIM IN ACCORDANCE WITH ARTICLE 38 ( G ).

34 THE COMMISSION DENIES THAT THE APPLICANT WAS SECONDED WITHIN THE MEANING OF ARTICLE 37 AND STATES THAT THE APPLICANT WAS AWARE OF THE PRECISE NATURE OF THE VARIOUS ASSIGNMENTS , SO THAT ARTICLE 38 CANNOT APPLY .

35 AS HAS BEEN STATED ABOVE , THE VARIOUS MEASURES ADOPTED DID NOT ALTER THE APPLICANT ' S LEGAL POSITION IN ANY WAY AND IT IS CLEAR FROM HIS STATEMENTS AT THE TIME OF THE VARIOUS TRANSFERS THAT HE WAS AWARE THAT THE MEASURES IN QUESTION , WHICH WERE ALWAYS ADOPTED WITH HIS COMPLETE AGREEMENT IN ORDER TO WORK TOWARDS A PERMANENT SOLUTION IN HIS INTEREST , WERE PROVISIONAL AND TEMPORARY .

36 CONSEQUENTLY , THERE WAS NO SECONDMENT WITHIN THE MEANING OF ARTICLE 37 OF THE STAFF REGULATIONS AND THERE WAS NOTHING IN THE COMMISSION ' S ATTITUDE TO GIVE THE APPLICANT GROUNDS FOR BELIEVING THAT THE MEASURES IN QUESTION HAD ANY SUCH EFFECT .

37 THE SUBMISSION ON THE INFRINGEMENT OF ARTICLE 38 THUS HAS NO FOUNDATION IN FACT .

SUBMISSION ON THE INFRINGEMENT OF ARTICLE 45 OF THE STAFF REGULATIONS AND THE PRINCIPLE OF NON-DISCRIMINATION

38 THE APPLICANT CLAIMS THAT SINCE LEAVING THE PUBLICATIONS OFFICE HE HAS NO LONGER BEEN ENTRUSTED WITH SPECIFIC DUTIES SUCH AS TO ALLOW HIS MERITS TO BE COMPARED WITH THOSE OF OTHER OFFICIALS WITH A VIEW TO PROMOTION .

39 THE COMMISSION REPLIES THAT THE VARIOUS ASSIGNMENTS DID NOT PREVENT THE APPLICANT ' S MERITS FROM BEING CONTINUALLY ASSESSED IN THE ACCOMPLISHMENT OF THE VARIOUS DUTIES ASSIGNED TO HIM . PERIODIC REPORTS WERE DRAWN UP , TAKING INTO ACCOUNT THE DIFFERENT WORK WHICH HE CARRIED OUT .

40 THE APPLICANT WAS RECOMMENDED FOR PROMOTION IN THE 1983 FINANCIAL YEAR . HE WAS NOT RECOMMENDED FOR PROMOTION IN THE 1984 FINANCIAL YEAR PURELY BECAUSE OF AN UNFAVOURABLE ASSESSMENT BY THE REPORTING OFFICER .

41 IT IS CLEAR FROM THE EVIDENCE PUT BEFORE THE COURT THAT , IN SPITE OF THE DIVERSITY OF THE DUTIES ASSIGNED TO THE APPLICANT , PERIODIC REPORTS WERE DULY DRAWN UP , ENABLING HIS MERITS TO BE ASSESSED WITH A VIEW TO PROMOTION .

42 SINCE THE CONSIDERATION OF THE MERITS OF OFFICIALS FOR THE PURPOSES OF PROMOTION IS , IN THE ABSENCE OF A MANIFEST ERROR OF ASSESSMENT WHICH IS NOT ALLEGED IN THIS CASE , WITHIN THE DISCRETION OF THE APPOINTING AUTHORITY , NO INFRINGEMENT OF ARTICLE 45 ( 1 ) HAS BEEN ESTABLISHED . AS PERIODIC REPORTS WERE MADE ON THE APPLICANT ON THE SAME BASIS AS OTHER OFFICIALS , THERE IS NO FOUNDATION FOR THE ALLEGATION OF DISCRIMINATORY TREATMENT .

43 THAT SUBMISSION MUST THEREFORE BE REJECTED .

44 ACCORDINGLY , THE APPLICATION FOR THE ANNULMENT OF THE ALLEGED DECISION REFUSING TO REINSTATE THE APPLICANT IMMEDIATELY IN THE PUBLICATIONS OFFICE AND FOR COMPENSATION FOR THE NON-MATERIAL DAMAGE ALLEGEDLY SUFFERED OWING TO THE DISRUPTION OF THE NORMAL DEVELOPMENT OF HIS CAREER MUST BE DISMISSED AS UNFOUNDED . THE APPLICATION FOR A DECLARATION THAT THE COMMISSION IS BOUND TO ASSIGN THE APPLICANT TO AN ACTUAL POST IN HIS CATEGORY , CORRESPONDING TO HIS GRADE , EXPERIENCE AND QUALIFICATIONS , MUST ALSO BE DISMISSED AS UNFOUNDED .

COSTS

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

HEREBY :

( 1 ) DISMISSES THE APPLICATION ;

( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .