61981J0189

OFFICIALS - APPLICATIONS TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - CONCEPT - TRANSFER TO A POST IN A PERSONAL CAPACITY OF AN OFFICIAL ALREADY ASSIGNED IN A PERSONAL CAPACITY TO ANOTHER POST OF THE SAME GRADE - TRANSFER PERMISSIBLE

( STAFF REGULATIONS OF OFFICIALS , ART . 91 )

A DECISION OF THE APPOINTING AUTHORITY ASSIGNING TO A POST IN A PERSONAL CAPACITY AN OFFICIAL WHO HAS ALREADY BEEN ASSIGNED IN A PERSONAL CAPACITY TO ANOTHER POST OF THE SAME GRADE DOES NOT ALTER THE POSITION OF THE PERSON CONCERNED UNDER THE STAFF REGULATIONS AND THEREFORE DOES NOT ADVERSELY AFFECT HIM .

IN CASE 189/81

ROBERT BOSMANS , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR , 68 RUE CAMILLE LEMONNIER , 1060 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , ADVOCATE , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , J.-P . DELAHOUSSE , ACTING AS AGENT , ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR , 93 AVENUE BRILLAT SAVARIN , 1050 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION DECISION OF 25 JUNE 1980 ASSIGNING THE APPLICANT AS AN ADVISER TO DIRECTORATE IX-A , PERSONNEL , WITH EFFECT FROM 1 AUGUST 1980 , IN SO FAR AS IT IS TO AN A 3 POST IN A PERSONAL CAPACITY , FOR A DECLARATION THAT THE POST OCCUPIED BY THE APPLICANT IS AND MUST BE AN ESTABLISHED A 3 POST , AND ALSO FOR THE ANNULMENT OF THE REJECTION OF HIS REQUEST OF 25 JULY 1980 AND OF HIS COMPLAINT OF 2 DECEMBER 1980 ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 19 JUNE 1981 , MR BOSMANS , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN APPLICATION FOR THE ANNULMENT OF THE COMMISSION DECISION OF 25 JUNE 1980 ASSIGNING HIM AS AN ADVISER TO DIRECTORATE IX-A WITH EFFECT FROM 1 AUGUST 1980 , IN SO FAR AS IT WAS TO AN A 3 POST IN A PERSONAL CAPACITY , AND FOR THE ANNULMENT OF THE REJECTION OF HIS REQUEST OF 25 JULY 1980 AND OF HIS COMPLAINT OF 2 DECEMBER 1980 WHICH ASKED THAT THAT POST SHOULD BE AN ESTABLISHED A 3 POST .

2 THE APPLICANT ENTERED THE SERVICE OF THE COMMISSION ON 1 SEPTEMBER 1958 IN GRADE A 5 . HE WAS PROMOTED TO GRADE A 4 WITH EFFECT FROM 1 MARCH 1960 , THEN TO GRADE A 3 AS HEAD OF DIVISION WITH EFFECT FROM 1 OCTOBER 1963 , AND HE OCCUPIED CORRESPONDING POSTS IN THE COMMISSION ' S LIST OF POSTS . ON 1 AUGUST 1973 HE WAS ASSIGNED TO A POST IN WHICH HE RETAINED HIS GRADE A 3 IN A PERSONAL CAPACITY .

3 INDEED , ACCORDING TO THE LIST OF POSTS WITHIN THE MEANING OF ARTICLE 6 OF THE STAFF REGULATIONS PUBLISHED IN THE OFFICIAL JOURNAL ON 19 NOVEMBER 1973 AND A DETAILED LIST OF POSTS DATED 30 OCTOBER 1973 , THE POST TO WHICH THE APPLICANT WAS APPOINTED ON 1 AUGUST 1973 WAS AN A 5/A 4 POST , BUT WAS OCCUPIED BY HIM AS AN OFFICIAL IN GRADE A 3 IN A PERSONAL CAPACITY . FOLLOWING THAT ASSIGNMENT , THE APPLICANT LODGED A REQUEST WITH THE APPOINTING AUTHORITY ASKING THAT HIS NEW POST SHOULD BE REPLACED BY ANOTHER IDENTICAL AS TO ITS ESTABLISHED NATURE TO THAT WHICH HE HAD HELD WITHOUT INTERRUPTION SINCE 1 OCTOBER 1963 . HOWEVER , THAT REQUEST WAS WITHDRAWN ON 8 FEBRUARY 1974 .

4 ON 25 JUNE 1980 , THE APPLICANT WAS TRANSFERRED TO A POST AS AN ADVISER IN DIRECTORATE A , PERSONNEL , OF DIRECTORATE GENERAL IX OF THE COMMISSION . THE APPLICANT DISPUTES THE LEGALITY OF THAT DECISION , INASMUCH AS IT ASSIGNS HIM TO A POST IN A PERSONAL CAPACITY , AS WELL AS THE REJECTION OF HIS REQUEST OF 25 JULY 1980 THAT , IN ACCORDANCE WITH ARTICLES 25 AND 90 OF THE STAFF REGULATIONS , THE APPOINTING AUTHORITY SHOULD CONFIRM THAT HE OCCUPIED ONE OF THE A 3 POSTS IN THE LIST OF POSTS OTHER THAN THE A 3 POSTS IN A PERSONAL CAPACITY .

5 HE CLAIMS THAT THERE HAS BEEN AN INFRINGEMENT OF ARTICLES 1 , 5 AND 7 ( 1 ) OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES , OF THE COMMISSION DECISION UNDER ARTICLE 5 ( 4 ) OF THE STAFF REGULATIONS DEFINING THE DUTIES AND POWERS ATTACHING TO EACH BASIC POST IN ANNEX I , PART A , OF THE STAFF REGULATIONS , OF THE COMMISSION DECISION OF 10 DECEMBER 1963 PROMOTING THE APPLICANT TO GRADE A 3 , AND ALSO A BREACH OF PRINCIPLES OF LAW , IN PARTICULAR THE PRINCIPLES OF EQUALITY , GOOD ADMINISTRATION AND DISTRIBUTIVE JUSTICE .

6 ACCORDING TO THE APPLICANT , HIS ASSIGNMENT TO AN A 3 POST IN A PERSONAL CAPACITY CONFLICTS WITH THE RIGHT OF AN OFFICIAL TO BE ASSIGNED FROM THE BEGINNING AND THROUGHOUT HIS CAREER TO AN ESTABLISHED POST IN THE LIST OF POSTS OF HIS INSTITUTION CORRESPONDING TO HIS GRADE NOT ONLY SO FAR AS THE NATURE OF THE DUTIES AND THE DESCRIPTION OF THE POST ARE CONCERNED , BUT ALSO IN RELATION TO THE CLASSIFICATION OF THAT POST IN THE LIST OF POSTS .

7 HE CONSIDERS THAT HIS ASSIGNMENT IS THE RESULT OF A PRACTICE WHICH HAS NO LEGAL BASIS AND WHICH CONSTITUTES A SOURCE OF CONFUSION AND UNEQUAL TREATMENT OF OFFICIALS .

8 THE COMMISSION CONTENDS THAT THE ASSIGNMENT TO AN A 3 POST IN A PERSONAL CAPACITY HAS NO EFFECT ON THE APPLICANT ' S POSITION UNDER THE STAFF REGULATIONS OR ON HIS MATERIAL AND NON-MATERIAL INTERESTS , SINCE THE POST IN A PERSONAL CAPACITY IS EXCLUSIVELY A BUDGETARY CONCEPT WHICH DOES NOT AFFECT THE DEFINITION OF POSTS UNDER THE STAFF REGULATIONS , RESULTING PARTICULARLY FROM ARTICLE 5 AND ANNEX I , PART A , THEREOF .

9 THE COMMISSION FURTHER CLAIMS THAT THE APPLICATION IS INADMISSIBLE , INASMUCH AS IT CALLS IN QUESTION A SITUATION WHICH HAS EXISTED FOR AT LEAST EIGHT YEARS WITHOUT INTERRUPTION , SINCE THE DECISION OF 25 JUNE 1980 HAS HAD NO EFFECT ON THE APPLICANT ' S POSITION UNDER THE STAFF REGULATIONS OR ON HIS MATERIAL AND NON-MATERIAL INTERESTS .

10 IT IS COMMON GROUND THAT THE APPLICATION SEEKS TO CHALLENGE THE DECISION OF 25 JUNE 1980 BY WHICH THE APPLICANT WAS ASSIGNED AS AN ADVISER TO AN A 3 POST IN A PERSONAL CAPACITY . BY ASSIGNING THE APPLICANT TO AN A 3 POST IN A PERSONAL CAPACITY , THE DECISION IN QUESTION DID NOT ALTER HIS POSITION UNDER THE STAFF REGULATIONS , WHICH RESULTED FROM HIS ASSIGNMENT TO AN A 3 POST IN A PERSONAL CAPACITY WITH EFFECT FROM 1 AUGUST 1973 .

11 IF FOLLOWS THAT IN SO FAR AS THE CONTESTED MEASURE RETAINS THE APPLICANT IN AN A 3 POST IN A PERSONAL CAPACITY , IT NEITHER ALTERS NOR SEEKS TO ALTER THE APPLICANT ' S POSITION . THEREFORE IN THIS RESPECT IT IS NOT AN ACT WHICH ADVERSELY AFFECTS HIM .

12 THE APPLICANT DOES NOT CONTEST THE LEGALITY OF HIS TRANSFER TO THE POST OF ADVISER , WHICH IS THE TRUE PURPOSE OF THE CONTESTED DECISION OF 25 JUNE 1980 .

13 THE APPLICATION MUST THEREFORE BE DISMISSED AS UNFOUNDED AND IT IS UNNECESSARY TO EXAMINE THE OBJECTION OF INADMISSIBILITY RAISED BY THE COMMISSION .

COSTS

14 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 , COSTS INCURRED BY THE INSTITUTIONS IN APPLICATIONS BY OFFICIALS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS THEMSELVES .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .