JUDGMENT OF 28. 5. 1970 — CASE 30/68 LACROIX v COMMISSION

In Case 30/68

THE COURT (First Chamber) composed of: R. Monaco, President, A. M. Donner (Rapporteur) and J. Mertens de Wilmars, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

The facts and procedure may be summarized as follows :

The applicant, who entered the service of the Commission of the EAEC on 6 October 1960, was established as Head of Division (Grade A 3) from 1 January 1962.

Within the context of the reorganization of the administration he was asked on 21 May 1968 to state whether or not he accepted the post of Adviser to the head of one of the divisions of the Directorate of Administration in the Directorate General for Personnel and Administration (a post which was in the career bracket immediately below the career bracket for his grade). He accepted it whilst stating that, first, a measure of this kind could only be justified if it was really essential and secondly, that the validity of this measure was questionable, because according to him, the Commission's resolution to alter the distribution of posts among nationals of the Member States was a decisive consideration in the formulation of this decision. He stated that he hoped to be assigned to another post as soon as possible where his abilities could be more fully employed.

The applicant was notified that he had been assigned to the post in question by a letter of 22 May 1968 from the President of the Commission. It was specified in this letter that he would have a priority right of transfer to any post corresponding to his grade which might fall vacant or be created, provided that he was suitable for the post in question.

On 14 August 1968 the applicant submitted a complaint to the Commission in which he pointed out that fifty-five posts in his grade had been the subject of vacancy notices since June 1968 and that he had applied for eleven of them in vain and had also applied for two posts in the grade above him out of the sixteen posts in that grade which had been declared vacant since March 1968. In conclusion he requested it to assign him to a post in his grade by varying the decision of 21 May 1968 on this point and by withdrawing or revoking the measures taken to fill the posts in his grade or the one immediately above it whether they had been declared vacant or not.

As he had received no decision within the period of two months laid down in the Staff Regulations, the applicant considered his request to have been rejected — this was confirmed by a communication of 6 November 1968 — and made an application, dated 11 December 1968, to the Court of Justice which was lodged at the Court Registry on 12 December 1968.

The written procedure followed the normal course.

After hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (First Chamber) decided to open the oral procedure without instituting a preparatory inquiry.

The parties presented oral argument at the hearing on 18 February 1970.

At the request of the Court the defendant produced on 4 March 1970 documents relating to the procedures for filling the posts for which the applicant had applied since 21 May 1968. The applicant submitted his observations on those documents in a letter of 18 March 1970.

The Advocate-General delivered his opinion at the hearing on 22 April 1970.

II — Conclusions of the parties

In the application the applicant claims that the Court should :

1) order the necessary measures of inquiry into the processes which led to the decision concerning the applicant taken by the Commission on 21 May 1968 (a decision which was confirmed by the implied rejection of the applicant's complaint of 14 August 1968 and by the letter sent to him on 6 November 1968), into the way in which the posts which were declared vacant and for which the applicant is eligible have been filled since then and into the number and nature of such posts which are not in fact occupied;

2) Declare that during the processes before or after the decision of 21 May 1968 or in this decision, as the case may be,

a) the Commission did not observe the provisions of Article 8 of Regulation No 259/68 of the Council of 29 February 1968,

b) the Commission did not observe the provisions of Articles 5(3), 7(1) and 27 of the Staff Regulations,

c) the Commission did not observe the provisions of Article 4 and possibly Article 29 of the Staff Regulations,

d) the applicant's agreement in fact to be assigned to a post below his grade was inevitably conditional upon the Commission's observing the legal provisions ;

3) On those grounds and on such further grounds as may be put forward :

a) annul in part the decision of 21 May 1968 in so far as it did not assign the applicant to a post in his grade,

b) order that the applicant be no longer deprived without just cause of a post in his grade and that all appropriate measures be taken to assign him to such a post,

c) annul all decisions to appoint or assign officials which affect the applicant adversely owing to the Commission's failure to observe Articles 4, 5(3), 7(1), 27 and possibly 29 of the Staff Regulations and Article 8 of Regulation No 259/68 of the Council of 29 February 1968,

d) assess the damage suffered by the applicant owing to these appointments and assignments and owing to all the other facts which are mentioned in this application or established during the action and order the payment of damages,

e) order the defendant to pay the costs.

In reply the applicant states that:

he leaves it to the discretion of the Court to decide whether the application is admissible as regards the annulment of the decision of 20 March 1968 to assign officials to posts in Grade A 2;

he leaves it to the discretion of the Court to interpret head 3 (b) of his conclusions to mean the following:

‘find that the applicant has been and still is deprived without just cause of a post in his grade and refer him to the Commission so that all the appropriate measures may be taken to comply with the judgment of the Court.’

In addition the applicant claims that the Court should :

extend the subject-matter of the application to the vacancy notices for posts in Grade A 3 which were published after 12 December 1968, as those are part of the same series of illegal measures as the vacancy notices which were published from 21 May to 12 December 1968 and are tainted with the same legal defects as the latter.

The defendant contends that the Court should :

dismiss the applicant's application completely as inadmissible and unfounded;

order the applicant to pay the costs.

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

Admissibility of the application

The following observations have been made on the admissibility of the various heads of the conclusions :

A —) According to the defendant, the application against the decision of 21 May 1968 is inadmissible because the period laid down by Article 91 of the Staff Regulations has expired. The applicant cannot claim that this period was interrupted by the complaint of 14 August 1968 because the subject-matter of this application, the annulment of the decision of 21 May 1968, differed from that of the complaint which only asked for the decision to be varied. Moreover, the application should have been submitted against the decision rejecting the complaint by implication. In the reply the applicant states that, as regards the respective functions of these two methods of recourse, the subject-matter of the complaint and that of this application are identical in substance. It follows that the applicant is not out of time in contesting the decision of 22 May 1968. In its rejoinder the defendant adheres to the arguments which were set out in its statement of defence.

B —) According to the defendant, the request for an order that the applicant be no longer deprived without just cause of a post in his grade and that all appropriate measures be taken to assign him to such a post is inadmissible because the applicant is requesting the Court to give orders to the appointing authority calculated to cause the Court to encroach upon the prerogatives of that authority. The applicant replies that although in the past the Court had not given orders to the Commission, it had however not hesitated to state what ought in its view to be done to implement its decisions on the substance of the case. In addition, he states his conclusions on this point in detail.

C —) The defendant states that the request for the annulment of all decisions to appoint or assign officials which were taken during the periods stated is inadmissible on the following grounds: The applicant replies that: In the oral procedure the applicant stated that he wished to contest in particular decisions to fill the sixteen posts in Grade A 3 for which he had applied since 21 May 1968, but that in so doing he was not withdrawing his request for the annulment of the other decisions to appoint or assign which affected him adversely.

a) The period for lodging an application had in most cases expired;

b) The applicant does not have the necessary interest to request the annulment of decisions to appoint other officials ;

c) The applicant has not specified the decisions concerned and cannot therefore be heard to apply for the annulment as a whole of a number of decisions which he defines only in general terms;

d) In any case, the applicant cannot be allowed to contest appointments made following a competition in which he did not apply to take part.

a) This argument on the part of the defendant has already been rejected under heading A;

b) and (d) As all appointments and assignments might have an effect on his carreer, they are capable of affecting him adversely;

c) The Commission's decisions are sufficiently described in the application.

D —) According to the defendant, the application for the award of damages is inadmissible because, in failing to give particulars of his claim, the applicant has not satisfied the provisions of Article 38(1) of the Rules of Procedure of the Court. The applicant states that he has satisfied Article 38(1) of the Rules of Procedure of the Court. He claims that in fact the particulars given in the application show that he claims to have suffered damage because of the decisions the annulment of which he seeks and because of the circumstances surrounding the contested decisions which are described in the statement of facts contained in the application. He maintains that the reservation in the conclusions in respect of ‘the facts established during the action’ is explained by the request for measures of inquiry, and that, moreover, the Court allows this procedure (cf. Case 62/65, [1966] E.C.R. 813).

E —) With regard to the request that the Court order measures of inquiry, the defendant considers that the applicant has not proved the facts which justify an inquiry. On the one hand the reorganization of departments which led to the applicant's former post being abolished comes in principle under the powers of the administration. On the other hand the comparative examination which led the Commission not to assign the applicant to a new post in Grade A 3 consists of assessments and value judgments which the Court has always refused to examine. Only exceptional facts and circumstances can therefore justify an inquiry. The applicant states in his reply first of all that this application is not directed against the individual measure whereby his former post was abolished. Then he states that the statement of facts set out in the application contains facts and evidence to justify the request for measures of inquiry. He adds that the findings of fact stated in the judgment of the Court in Case 17/68 show that the concern to achieve ‘geographical balance’ played a part in the grounds for the decisions taken with regard to the reorganization of the departments, so that the inquiry which he requested might have a particular bearing on this fact.

F —) Finally the defendant alleges that the applicant's requests, which are set out in paragraph 2 of his conclusions, are in fact only concerned with declarations and are not therefore admissible as conclusions. The applicant leaves the decision to the discretion of the Court.

The substance of the case

A — Requests for annulment

1 — Infringement of Article 8 of Regulation No 259/68 of the Council

The applicant states that it follows from the facts which have been set out that the Commission was not compelled to offer the applicant a post below the post in his grade on account of the reduction of the number of posts in Grade A 3 or the need to rationalize departments and that therefore it infringed the provisions of this article.

The defendant replies that the post previously held by the applicant was not included in the new detailed list of posts and that it had not been possible to assign him to one of the posts in his grade provided for by the new list.

In respect of the posts in his grade which had been notified since the decision of 21 May 1968, the defendant states that, as regards the eleven posts for 'which the applicant applied, the Commission had borne in mind the priority right given by Article 8(2) of Regulation No 259/68 and had examined his application first before considering candidates who did not have a priority right but that it had come to the conclusion that he was not suitable for appointment to those posts.

The applicant replies that it follows clearly from Article 8 that the Commission could not assign an official to a post below his grade without sufficient need, which must be capable of being verified, and that in any case he should be restored to a post in the corresponding grade as soon as possible. He claims that standard answers such as those given in the letter of 6 November 1968 and the statement of defence are not sufficient for the purpose of verifying whether the decisions of the Commission were made in accordance with these basic provisions and says that such verification is certainly within the jurisdiction of the Court. In the rejoinder the defendant insists on the fact that following the merger of the three executives it was the task of the single Commission to restructure and rationalize its departments and to reduce the number of posts. It did so by trying to ensure the best use of the available personnel, whilst protecting the interests of officials. The defendant alleges that it is clear that at the end of this process some officials could not be assigned to a post in their grade, others had to be assigned to posts in the career bracket immediately below the one corresponding to their grade and, lastly, some posts could not have been filled as there were no available officials who had the necessary qualifications. This whole process, including the procedure whereby vacant posts were later filled, involves the use of value judgments which only the appointing authority can make.

2 — Infringement of Article 4 of the Staff Regulations of Officials

In this respect, the applicant points out that the Commission assigned officials to posts in their own grade without notifying the vacant posts, in particular by its decisions of 20 March 1968 (posts in grades A 1 and A 2) and 21 May 1968 (posts in grade A 3), and that this is contrary to the provisions of Article 4 of the Staff Regulations.

The defendant replies that vacant posts were not concerned in the cases mentioned since, basically, three former detailed lists of posts were being replaced by the single new detailed list of posts. Therefore the Commission did not have to apply Article 4 and could proceed on the basis only of Article 7 (1) of the Staff Regulations.

The applicant replies that Regulation No 259/68 does not make an exception to the rule in Article 4 of the Staff Regulations, which should therefore have been applied in the context of the reorganization of departments. The defendant's argument that there was no vacant post but only a substitution of detailed lists of posts is not convincing since an official can only be assigned to a vacant post. He maintains that Article 7, upon which the defendant relies, expressly precludes ‘an assignment’ being made by ‘methods’ other than those laid down by the Staff Regulations, in particular by Article 4.

In its rejoinder, the defendant alleges that Article 4 of the Staff Regulations refers to the normal situation. The situation prevailing when the departments of the Communities were being restructured was quite different. This restructuring meant that all posts were vacant and that the appointing authority had to examine the case of each official. It is evident that in these circumstances to invite applications as laid down in Article 4 of the Staff Regulations would have been completely unnecessary and indeed inappropriate.

3 — Misuse of powers and infringement of Articles 4, 7 and 29 of the Staff Regulations and of Article 8 (2) of Regulation No 259/68

The applicant states that in the circumstances which have been described, the true purpose of the publication from June 1968 onwards of fifty-five notices of vacancies relating to posts in Grade A 3, that is, more than one fifth of the total number of posts in this grade, could only have been to fill these posts in the main by promoting officials from a career bracket below that of the applicant or by outside recruitment to the detriment of the applicant, who was thus deprived of the priority right which Article 8 (2) of Regulation No 259/68 conferred on him.

As the defendant has not adopted a specific position on this submission, the applicant expands it in his reply. In particular he points out that the defendant, in reply to the second submission, stated that these vacancy notices were only published in the case of vacancies which the Commission had been unable to fill in the restructuring process because there was no official available of the grade in question who was suitable.

This amounts to subjecting officials such as the applicant, who are eligible for assignment to these posts, to an assessment which is outside all the regular procedures for examining applications. The result is a substantial contradiction between the wording of the vacancy notices which, also, if not in the first place, invite applications from candidates who have priority rights of transfer or promotion and the true intentions of the Commission which had already decided previously that they were not suitable.

4 — Infringement of Articles 5(3), 7(1) and 27 of the Staff Regulations and misuse of powers

According to the applicant, the Commission's resolution to alter immediately the distribution of postas among nationals of the Member States was a determining factor in the making of the decision of 21 May 1968. Therefore there has been an infringement of Articles 5(3), 7(1) and 27 of the Staff Regulations and neither the Treaty of 8 April 1965 nor Regulation No 259/68 of the Council provides for any exceptions to these articles.

In its statement of defence, the defendant points out that in its reply to Written Question 144/68 asked by Mr Scelba, the Commission stated that the reassignment of officials which it had just completed was based on the principles laid down in Article 7 of the Staff Regulations and although it had achieved some measure of geographical balance it had been motivated above all 'by the desire for the efficient running of the individual sectors of activity (OJ, C 112 of 28.10.1968, p. 2.)

In his reply the applicant alleges in particular that:

the importance which was attached to the rapid achievement of a better ‘balance’ was one of the grounds, communicated to the applicant by word of mouth, for the decision concerning him which was taken on 21 May 1968;

in its judgment in Case 17/68 the Court held that in fulfilling the rationalization mandate given to it by the Merger Treaty, the Commission was not released from the obligations which are the result of Article 7 in conjunction with Article 27 of the Staff Regulations;

it follows from this case decided by the Court that the Commission cannot use the powers given to it under Article 8 of Regulation No 259/68 to remove the applicant from a post in his grade so as to facilitate the achievement of a better ‘geographical balance’.

In its rejoinder the defendant alleges that the applicant has brought no evidence in this respect and that the submission should therefore be rejected.

B — Claim for damages

In his reply, the applicant states that although by the partial annulment of the decision of 21 May 1968 and the annulment of the other decisions contested the Commission will be enabled in the main to redress the wrong suffered by the applicant, there is nevertheless other damage suffered by him, the amount of which he asks the Court to assess, in particular:

non-material damage by reason of the anxieties and suffering caused by this case;

material damage to the applicant due to the fact that he was unable to apply for the posts in Grade A 2 which were filled without prior vacancy notices and for which he was eligible under the Staff Regulations;

damage to his professional reputation consisting of a blow to the esteem to which he had a claim in the position he had held before.

In its rejoinder, the defendant states that the applicant has suffered no injury which justifies the payment of damages. It claims that first, an official who has been affected by a measure laid down by Article 8 (1) of Regulation No 259/68 is in no way to blame for the situation in which he finds himself, so that there can be no question of non-material damage or of damage to the professional reputation of the applicant and, secondly, that since the posts in Grade A 2 were not filled by promotion but by reassigning officials in this grade pursuant to Article 7 (1) of the Staff Regulations, the applicant has not suffered material damage either.

Grounds of judgment

1. The application seeks essentially on the one hand the partial annulment of the decision of 21 May 1968 whereby the Commission, pursuant to Article 8 of Regulation No 259/68, assigned the applicant to a post corresponding to a career bracket directly below the career bracket for his grade and, on the other hand, the annulment of a number of decisions to appoint other officials to posts in Grades A 2 and A 3.

2. The defendant claims that the application for the annulment of the decision of21 May 1968 referred to above is out of time because it was only lodged on 11 November 1968, that is, more than three months after notification of the contested decision.

3. However, the applicant requested the President of the Commission in a letter of 14 August 1968 to vary the decision of 21 May as soon as possible and to assign him to a vacant post in his grade.

4. Although it is true that this letter did not expressly request the withdrawal of the decision in question, it is, however, quite apparent from it that the applicant was trying by this approach through official channels to obtain an amicable settlement of his complaints

5. In these circumstances the period for lodging an application against the decision of 21 May 1968 must be deemed to have been interrupted by the letter of 14 August 1968.

6. Moreover the applicant lodged his application as soon as he received the reply contained in a letter from the President of the Commission dated 6 November 1968.

7. Therefore the application against the decision of 21 May 1968 is admissible.

8. The application seeks the partial annulment of the decision of 21 May 1968 in so far as it did not assign the applicant to a post in his grade.

9. Without formulating other complaints against the legality of the contested measure, the application seeks to establish that there was no need to assign the applicant to a post below his grade because the Commission could have appointed him to a post in his grade on 21 May 1968 and on several subsequent occasions.

10. The applicant claims that the contested decision was therefore not necessitated by the interests of the service.

11. Under Article 8 of Regulation No 259/68, before taking a decision under Article 4 (1) of this regulation (termination of the service of an official), the Commission may in the interests of the service request the official concerned to state within one month whether he will accept transfer to a post corresponding to the career bracket immediately below that applicable to his grade.

12. It follows from this that the alternative to the transfer of the applicant to a post below his grade was not to appoint him to a post corresponding to that grade but to adopt a measure terminating his service.

13. Faced with this option, the applicant accepted the application of Article 8 so that the Commission waived the application of Article 4.

14. It follows that the application is directed not only aginast the contested decision but also against the previous implied decision possibly to apply Article 4 with regard to him, on the ground that neither was justified in the interests of the service.

15. It follows that the request for partial annulment is not based on the illegality of the contested decision itself, but on the illegality of a series of decisions allegedly associated with it and which relate to the reorganization of departments necessitated by the merger of the executives and which the applicant claims contributed as a whole to deprive him of his rights.

16. However, the question whether those associated decisions affected the applicant adversely and infringed his rights under the Staff Regulations can only be examined in the context of an application properly made against those measures.

17. If not, the Court would be led to a general examination of the need and advisability not only of all the measures involved but also of the whole policy which the Commission felt it should adopt in applying Regulation No 259/68.

18. Such an examination would exceed the limits of the review of legality which Article 91 of the Staff Regulations of Officials empowers the Court to effect.

19. Therefore the application must be dismissed in so far as it is directed against the decision of 21 May 1968.

20. The defendant also claims that the application for annulment is inadmissible in so far as it is directed against a number of decisions to appoint officials other than the applicant to posts in Grade A 2 and A 3.

21. In fact the subject-matter of this part of the application is not indicated with sufficient precision to enable it to be examined profitably.

22. To begin with, so far as the originating application is concerned, not only was there an omission in breach of Article 22 of the Protocol on the Statute of the Court of Justice of the ECSC and of Article 19 of the Protocol on the Statute of the Court of Justice of the EEC and EAEC to append in an annex thereto the measures the annulment of which was sought, but only a general indication of these measures was given.

23. Furthermore, in the reply the Court was requested to extend the subject-matter of the application to the appointments made on the basis of the vacancy notices relating to posts in Grade A 3 which were published since the application was lodged, so that the subject-matter of the application is not merely indefinite but could become even wider during the course of the action.

24. Besides, although the applicant did indicate that, of the measures which he has so generally defined, he only intends to contest those which affect him adversely, he has still however failed to define them precisely and has thereby left the Court the task of finding out which of the measures described are really the subject of the application.

25. Clearly, in order to protect the rights of the defence and of third parties concerned such imprecise requests must be regarded as inadmissible.

26. Although it is true that during the oral procedure the applicant gave somewhat more specific form to his application by pointing to some decisions which he had specially in mind, nevertheless, as this event took place in the last stage of the proceedings it cannot rectify the omissions which have been described.

27. Therefore the second head of the application is inadmissible.

28. Thus the application must be dismissed in its entirety.

Costs

29. Under Article 69 (2) of the Rules of Procedure of the Court of Justice the unsuccessful party shall be ordered to pay the costs.

30. The applicant has failed in his submissions.

31. However, under Article 70 of the Rules of Procedure institutions shall bear their own costs in proceedings brought against them by servants of the Communities.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties ; Upon hearing the opinion of the Advocate-General; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 91 ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (First Chamber) hereby :

1 Dismisses the application;

2 Orders the parties to bear their own costs.