61967J0026

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1 . OFFICIALS - RULES RELATING TO ACTING AS DEPUTY FOR ANOTHER OFFICIAL - POWERS OF THE ADMINISTRATION - RULES RELATING TO TEMPORARY POSTING - APPLICATION OF THOSE RULES RESERVED FOR OFFICIALS IN THE SAME CATEGORY AS THOSE TO BE REPLACED

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 7 )

2 . COSTS - ORDER FOR EACH PARTY TO BEAR OWN COSTS - EXCEPTIONAL CIRCUMSTANCES

( RULES OF PROCEDURE, ARTICLE 69(3 ))

1 . THE SYSTEM FOR THE TEMPORARY REPLACEMENT OF ABSENT OFFICERS FORMS PART OF THE GENERAL POWERS OF ANY ADMINISTRATION IN RESPECT OF THE ORGANIZATION OF ITS DEPARTMENTS, WHICH IT MAY USE FOR THE PURPOSE OF ENSURING THE CONTINUITY OF THE SERVICE WHEN THE HOLDER OF A POST IS ABSENT OR PREVENTED FROM ATTENDING TO HIS DUTIES . SUCH REPLACEMENT MAY ONLY CONTINUE FOR AS LONG AS IS REQUIRED FOR THE NORMAL FUNCTIONING OF THE DEPARTMENT, HAVING REGARD TO THE OBJECTIVE NEEDS OF THAT DEPARTMENT . SINCE TEMPORARY POSTING IS ONLY PERMISSIBLE WITHIN THE CATEGORY OF THE OFFICIAL TO BE REPLACED, IT CANNOT BE APPLIED TO A PERSON REPLACING AN OFFICIAL IN A CATEGORY OTHER THAN HIS OWN .

2 . EXCEPTIONAL CIRCUMSTANCES JUSTIFYING AN ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART EXIST WHERE THE SILENCE OF A LEGAL PROVISION AS TO THE POSITION IN LAW OF THE APPLICANT WAS SUCH AS TO CREATE DOUBTS REGARDING THE RULES OF LAW APPLICABLE .

IN CASE 26/67

HENRI DANVIN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED AND ASSISTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D'APPEL, BRUSSELS, LECTURER AT THE FREE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, ADVOCATE, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, L . DE LA FONTAINE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF H . MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE SAID COMMISSION,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF AN IMPLIED DECISION REFUSING A REQUEST MADE BY H . DANVIN ON 12 JANUARY 1966 FOR A DIFFERENTIAL ALLOWANCE AND FOR THE PAYMENT OF COMPENSATION,

P . 320

THE APPLICANT MAINTAINS THAT HIS RELATIONSHIP WITH THE COMMISSION DURING THE PERIOD FOR WHICH HE REPLACED HIS CHIEF ACCOUNTING OFFICER WAS GOVERNED EXCLUSIVELY BY THE STAFF REGULATIONS OF OFFICIALS, SINCE THOSE REGULATIONS REVOKED BY IMPLICATION THE TEMPORARY MEASURES ADOPTED ON 5 JUNE 1959 BY THE PRESIDENT OF THE COMMISSION PROVIDING THAT, WITHIN THE EUROPEAN DEVELOPMENT FUND, THE ASSISTANT ACCOUNTING OFFICER SHOULD AUTOMATICALLY DEPUTIZE FOR THE CHIEF ACCOUNTING OFFICER .

THAT DECISION OF THE PRESIDENT OF THE COMMISSION, THE PURPOSE OF WHICH WAS TO ENSURE CONTINUITY IN THE EXERCISE OF THE DUTIES OF CHIEF ACCOUNTING OFFICER OF THE EUROPEAN DEVELOPMENT FUND, ESTABLISHED RULES INTENDED TO PROVIDE THAT WHEN THE CHIEF ACCOUNTING OFFICER WAS ABSENT OR PREVENTED FROM ATTENDING TO HIS DUTIES HE SHOULD BE AUTOMATICALLY REPLACED ON A TEMPORARY BASIS, BY THE ASSISTANT ACCOUNTING OFFICER .

THIS SPECIAL MEASURE, WHICH CONCERNS A PARTICULAR SPHERE, CANNOT REASONABLY BE REPLACED BY THE GENERAL PROVISIONS OF THE STAFF REGULATIONS OF OFFICIALS .

THE FUNCTIONING AND ORGANIZATION OF THE EUROPEAN DEVELOPMENT FUND REQUIRE THAT THERE SHOULD BE NO INTERRUPTION IN THE EXERCISE OF THE DUTIES OF CHIEF ACCOUNTING OFFICER . IT IS THEREFORE NECESSARY THAT THE OFFICIAL CALLED UPON TO DEPUTIZE FOR THE CHIEF ACCOUNTING OFFICER SHOULD BE DESIGNATED IN ADVANCE SO AS TO FACILITATE THE LATTER'S IMMEDIATE REPLACEMENT BY A SUITABLY QUALIFIED SERVANT .

P . 321

UNDER THE STAFF REGULATIONS, THE ONLY PROVISION FOR ENSURING THE TEMPORARY REPLACEMENT OF ONE COMMUNITY OFFICIAL BY ANOTHER IS THE PROCEDURE OF TEMPORARY POSTING GOVERNED BY ARTICLE 7(2 ). UNDER THIS PROVISION, HOWEVER, AN OFFICIAL CAN ONLY BE CALLED UPON TO OCCUPY TEMPORARILY A POST WHICH IS IN THE SAME CATEGORY AS THE POST WHICH HE OCCUPIES PERMANENTLY . THE POST OF ASSISTANT ACCOUNTING OFFICER MAY FALL IN A CATEGORY LOWER THAN THAT RELATING TO THE POST OF ACCOUNTING OFFICER . IN SUCH A CASE, THE STAFF REGULATIONS DO NOT MAKE PROVISION FOR TEMPORARY REPLACEMENT OF THE CHIEF ACCOUNTING OFFICER, WHEN HE IS ABSENT OR PREVENTED FROM ATTENDING TO HIS DUTIES, BY THE OFFICIAL WHO, WITHIN THE ORGANIZATION OF THE EUROPEAN DEVELOPMENT FUND, MAY BE CONSIDERED, IN HIS POSITION AS ASSISTANT, AS THE MOST SUITABLE FOR THIS TASK .

IN THESE CIRCUMSTANCES, AND IN THE ABSENCE OF ANY EXPRESS PROHIBITION IN THE STAFF REGULATIONS IN THIS CONNEXION, THE FUNCTIONING OF THE ACCOUNTS DEPARTMENT OF THE EUROPEAN DEVELOPMENT FUND REQUIRES AND JUSTIFIES THE CONTINUANCE, EVEN AFTER THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, OF THE SPECIAL PROVISION INSTITUTED BY THE PRESIDENT OF THE COMMISSION FOR THE TEMPORARY REPLACEMENT OF THE CHIEF ACCOUNTING OFFICER .

THE REFERENCE MADE BY ARTICLE 9 OF PROVISIONAL REGULATION NO 6 OF THE COUNCIL OF 3 DECEMBER 1958 TO THE PROVISIONS WHICH WERE SUBSEQUENTLY TO BE ADOPTED PURSUANT TO ARTICLE 209(C ) AND THE THIRD PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ONLY RELATES TO THE RULES CONCERNING THE RESPONSIBILITY OF AUTHORIZING OFFICERS AND ACCOUNTING OFFICERS OF THE FUND IN RESPECT OF THE REGULARITY OF PAYMENTS AND THE KEEPING OF ACCOUNTS .

CONSEQUENTLY, THIS REFERENCE CANNOT MEAN THAT THE SPECIAL PROVISION RELATING TO THE REPLACEMENT OF THE CHIEF ACCOUNTING OFFICER BY THE ASSISTANT ACCOUNTING OFFICER IS AUTOMATICALLY REVOKED BY THE STAFF REGULATIONS OF OFFICIALS .

FURTHERMORE, THE SYSTEM FOR THE TEMPORARY REPLACEMENT OF ABSENT OFFICERS FORMS PART OF THE GENERAL POWERS OF ANY ADMINISTRATION IN RESPECT OF THE ORGANIZATION OF ITS DEPARTMENTS . THESE POWERS MAY BE USED FOR THE PURPOSE OF ENSURING THE CONTINUITY OF THE SERVICE WHEN THE HOLDER OF A POST IS ABSENT OR PREVENTED FROM ATTENDING TO HIS DUTIES .

SUCH REPLACEMENT MAY ONLY CONTINUE FOR AS LONG AS IS REQUIRED FOR THE NORMAL FUNCTIONING OF THE DEPARTMENT, HAVING REGARD TO THE OBJECTIVE NEEDS OF THAT DEPARTMENT . THE APPLICANT REPLACED THE CHIEF ACCOUNTING OFFICER FOR SIXTEEN MONTHS . ALTHOUGH THIS EXTRAORDINARILY LONG PERIOD OF TIME MAY BE JUSTIFIED IN THIS CASE BY THE POSITION AND SPECIAL REQUIREMENTS RELATING TO THE RESTRUCTURING OF THE EUROPEAN DEVELOPMENT FUND, IT IS NEVERTHELESS DESIRABLE THAT AS A GENERAL RULE IN SUCH CASES THE ADMINISTRATION SHOULD, IN SO FAR AS IS POSSIBLE, REPLACE AN OFFICIAL PREVENTED FROM ATTENDING TO HIS DUTIES FOR A PROTRACTED PERIOD BY AN OFFICIAL WHO CAN BENEFIT FROM THE TEMPORARY POSTING .

P . 322

IT IS REGRETTABLE THAT THE APPLICANT, WHO FOR A LONG PERIOD CARRIED OUT DUTIES IN A GRADE HIGHER THAN HIS OWN AND WHO, ACCORDING EVEN TO THE COMMISSION, ACQUITTED HIMSELF VERY CREDITABLY WITH THE MORE COMPLEX TASKS THUS ENTRUSTED TO HIM, WAS UNABLE TO ENJOY THE BENEFITS PROVIDED FOR BY ARTICLE 7(2 ) OF THE STAFF REGULATIONS . HOWEVER, HAVING REGARD TO THE LEGAL PROVISIONS IN FORCE, WHICH ONLY PERMIT TEMPORARY POSTING WITHIN THE SAME CATEGORY, IT IS NOT POSSIBLE TO APPLY THE PROVISIONS OF ARTICLE 7(2 ) TO THE APPLICANT, WHO REPLACED AN OFFICIAL IN A CATEGORY DIFFERENT FROM HIS OWN .

IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE DEFENDANT HAS NOT COMMITTED THE WRONGFUL ACT OR OMISSION ALLEGED BY THE APPLICANT .

THE APPLICANT CLAIMS TO BE ENTITLED TO AN ALLOWANCE BY REASON OF THE COMMISSION'S ENRICHMENT RESULTING FROM THE ACTIVITY WHICH HE PERFORMED AS REPLACEMENT FOR THE CHIEF ACCOUNTING OFFICER .

IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE FACT THAT THE DEFENDANT TEMPORARILY CONFERRED UPON THE APPLICANT, ACTING AS DEPUTY, DUTIES RELATING TO A GRADE HIGHER THAN HIS OWN DOES NOT PROVIDE GROUNDS FOR COMPLAINT .

IN THESE CIRCUMSTANCES AND WITHOUT PREJUDICE TO THE QUESTION OF THE APPLICABILITY TO THE RELATIONSHIP BETWEEN THE COMMUNITY ADMINISTRATION AND ITS OFFICIALS OF THE CONCEPT OF UNJUST ENRICHMENT, IT CANNOT, IN ANY CASE, BE ACCEPTED THAT THE COMMISSION WAS UNJUSTLY ENRICHED BY REASON OF THE APPLICANT'S ACTIVITIES . MOREOVER, ACCORDING TO A GENERALLY ACCEPTED PRINCIPLE IN THE NATIONAL LEGAL SYSTEMS, THE APPLICANT'S ACTION WOULD ONLY BE WELL FOUNDED IF HE HAD SUFFERED LOSS CORRESPONDING TO THE ALLEGED ENRICHMENT OF THE OTHER PARTY . IN THIS CASE, THE APPLICANT HAS NOT PROVED HIS CLAIM TO HAVE SUFFERED PREJUDICE BY REASON OF HIS PERFORMING DUTIES OF A GRADE HIGHER THAN THOSE RELATING TO HIS OWN POST UNDER THE STAFF REGULATIONS .

ACCORDINGLY, THE SUBMISSION OF UNJUST ENRICHMENT MUST BE REJECTED .

THE APPLICANT HAS FAILED ON ALL THE HEADS OF HIS APPLICATION . UNDER THE COMBINED PROVISIONS OF ARTICLES 69(2 ) AND 70 OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS WITH THE EXCEPTION, FOR COMMUNITY OFFICIALS, OF THE COSTS INCURRED BY THE DEFENDANT INSTITUTION .

IT IS, HOWEVER, APPROPRIATE IN THIS CASE TO APPLY ARTICLE 69(3 ) OF THE RULES OF PROCEDURE, UNDER THE PROVISIONS OF WHICH THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL . IT MUST IN FACT BE ADMITTED THAT THE SILENCE OF THE STAFF REGULATIONS AS TO THE LEGAL POSITION OF A DEPUTY WAS SUCH AS TO CREATE UNCERTAINTY REGARDING THE RULES OF LAW APPLICABLE .

FURTHERMORE, TAKING INTO CONSIDERATION THE FACTS IN THIS CASE, IT WOULD BE PARTICULARLY UNJUST TO ORDER THE APPLICANT TO BEAR ALL HIS OWN COSTS .

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATION 26/67 AS BEING UNFOUNDED;

2 . ORDERS THE DEFENDANT TO BEAR ITS OWN COSTS AND THREE-QUARTERS OF THE APPLICANT'S COSTS .