JUDGMENT OF 13. 5. 1970 — CASE 46/69 REINARZ v COMMISSION
In Case 46/69
THE COURT (First Chamber) composed of: R. Monaco, President of Chamber, A. M. Donner and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General : K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of facts and procedure
In 1959 the applicant was appointed director of the Rates and Conditions Directorate of the Directorate General for Transport of the EEC. When the Communities were restructured it was decided in 1968 to reduce the number of directorates responsible for transport, and he was provisionally appointed Principal Adviser by a decision of 20 March 1968; and on 26 June 1968 a measure was adopted terminating his employment with effect from 1 October 1968.
In Application 17/68 of 29 July 1968, the applicant sought the annulment of these decisions. In it he complained that he had been dismissed from the service, and that three other officials of the same rank had been preferred to him and appointed to the three available posts of director under the new detailed list of posts in the Directorate General for Transport, whereas one of the three officials appointed had only a few months to go before retirement.
After his retirement that official was in fact replaced by an official from a lower grade, Mr Dousset, who was promoted to Director of the Directorate General for Transport by a decision of 15 January 1969.
In its judgment of 6 May 1969 (17/68, Rec. 1969, p. 62), the Court annulled the decision of 20 March 1968 allocating the applicant to a post as Principal Adviser and that of 26 June 1968 terminating his employment. The applicant learnt on 25 February 1969 of the promotion of Mr Dousset and on 24 May 1969 lodged an appeal through official channels against that decision.
On 18 June 1969 the Commission, to comply with the judgment of 6 May 1969, reinstated the applicant as an official in Grade A 2 with effect from 1 October 1968 and gave him a newly created post as Principal Adviser in Grade A 2 in the Directorate General for Transport.
The applicant's new duties were described as follows :
‘To advise the Director General and to carry out duties in the sphere of general and technological research in the field of transport, for the principal purpose of promoting the technical development of the transport system as a whole and to integrate it into the common transport policy, bearing in mind its objectives and its economic and social implications.’
In a separate decision taken during its meetings on 9 and 10 July 1969 the Commission also refused to give the applicant a car allowance for the period between the termination of his employment until the date on which he was actually reinstated therein (10 October 1968 to 30 July 1969).
The present application was lodged on 26 September 1969.
The written procedure followed the normal course.
The Court (First Chamber), after hearing the views of the Advocate-General and the report of the Judge-Rapporteur, decided to open the oral procedure without any preparatory inquiry.
The parties presented oral argument at the hearing on 18 February 1970.
The Advocate-General delivered his opinion at the hearing on 18 March 1970.
II — Conclusions of the Parties
The applicant claims that the Court should :
1) annul the decision of 18 June 1969 whereby the Commission decided to appoint the applicant a Principal Adviser;
2) annul the appointment of Mr Dousset, the date of which is unknown to the applicant;
3) annul the decision of the Commission not to pay the applicant the fixed travel allowance in the Brussels area;
4) order the Commission therefore to pay the applicant the sum of 30000 francs in respect of arrears, subject to retention by the applicant of the right to amend this sum in the course of the proceedings;
5) order the Commission to pay the applicant by way of damages the sum of one million Belgian francs, subject to retention by the applicant of the right to amend this sum in the course of the proceedings;
6) order the Commission to pay the entire costs of the proceedings. The defendant contends that the Court should :
dismiss the application as unfounded;
order the applicant to pay the costs.
The defendant further contends, in its rejoinder, that the Court should:
declare the submission of misuse of powers produced for the first time in the applicant's reply inadmissible, or alternatively unfounded; dismiss the application as unfounded ; order the applicant to pay the costs.
The applicant withdrew his claim for damages in the course of the oral proceedings.
III — Submissions and arguments of the parties
The submissions and arguments of the parties may be summarized as follows:
A. The applicant's appointment to the post of Principal Adviser
The applicant claims that in allocating him to the post of Principal Adviser the Commission failed to execute the judgment of the Court.
When the Court by its judgment of 6 May 1969 annulled the decision of 20 March 1968 appointing the applicant Principal Adviser it demonstrated clearly that the post of Principal Adviser was not equivalent to that of Director, which the applicant had previously occupied. The Commission must therefore restore him to his former situation and reinstate him in his duties as Director.
In his own particular case the absence of equivalence between the two posts lies in the following facts:
a director's duties provide him with certain opportunities of acting in connexion with and obtainig information on the daily progress of Community activities ;
at the time, the applicant as director had a series of assistants whereas at present he has merely a shorthand-typist;
the duties of a Principal Adviser are in general of a temporary nature for they depend on the needs of the Commission with regard to research needing to be carried out whereas the duties of a director are permanent duties within a determined framework. The risk of being given non-active status in the interests of the service is therefore less for a director;
opportunity for promotion to the grade of Director General is practically excluded for the more or less parallel category of Adviser;
his appointment was merely an ad hoc decision, taken not in the interests of the service but for the purpose of enabling the Commission to escape the awkward situation in which it had placed itself by appointing Mr Dousset;
the questions of general and technological research for which the applicant is responsible came, according to the current detailed list of posts, equally within the competence of two divisions in Directorate General VIII (Transport) whilst a different Directorate General (XII) continues to have general competence in the same field.
The defendant replies that although the Court annulled the allocation of the applicant to the post of Principal Adviser on the ground that there had been no prior examination of the comparative merits of the candidates, it was because it accepted that such a measure must have pre-judged the final measure terminating his employment. A reading of the judgment makes it clear in fact that if the provisional allocation to the post of Principal Adviser, decided on 20 March 1968, had continued in force and been made a final appointment, the dispute, in the form in which it was submitted to the Court, would not have taken place.
According to the Commission the applicant's administrative situation was as follows: after the annulment granted by the judgment of 6 May 1969 to ensure his reinstatement, the applicant, an official in Grade A 2 whose former post had been finally abolished, had to be appointed to one of two posts included in the definition of basic posts in Grade A 2, that is to say, a post as Director or as Principal Adviser. Relying on the case-law of the Court in Case 21/68 (judgment of 6 May 1969 Huybrechts v Commission Rec. 1969, p. 85) the defendant maintains that it was at liberty to appoint the applicant to either of the two above-mentioned posts since the Staff Regulations do not give any official a right to a particular post.
The duties attaching to posts do, of course, differ, but that alone does not justify the conclusion that they are not equivalent. On the contrary, claims the Commission, they are, not only under the Staff Regulations, but also in fact: opportunities for promotion are the same, whilst according to Article 41 of the Regulations a Principal Adviser is no more likely to be assigned non-active status than a director, bearing in mind the criteria which the administration must take into account before adopting such a measure. Lastly, the defendant contests the allegation that it did not act in the interests of the service, and thereby was guilty of a misuse of powers in allocating the applicant to the post in question by a decision taken ‘in desperation’, when the duties entrusted to him already belonged in fact to other Directorates General.
The defendant claims that this last submission is inadmissible because it is raised for the first time in the reply and in any case is unfounded.
On the one hand, it is for the Commission to organize its departments and the mere assertion that the creation of a post of Principal Adviser was not effected in the interests of the service is not sufficient to establish the alleged misuse of powers.
On the other hand, the claim that questions of general research and technology are within the sphere of competence of two directorates within Directorate General VII is incorrect, because one of the two is concerned only with certain aspects, essentially technical, of the relevant problems, leaving to the other questions of general research and of technology. Moreover, the fact that Directorate General XII, General Research and Technology, has general responsibility for research does not prevent the Directorate General for Transport from dealing with questions of scientific research arising within its own sphere. Such overlapping of powers between several Directorates general in particular subjects is made necessary by the particular duties given to each. Thus, Directorate General V, responsible for general questions of social policy, collaborates with the Directorate General for Transport on particular aspects of social policy in the field of transport and on drawing up special rules for this sector. This method of organization is manifestly not contrary to the interests of the service.
B. The appointment of Mr Dousset
The applicant requests the annulment of the appointment of Mr Dousset because the appointment is the consequence of his own dismissal.
He adds that by appointing Mr Dousset to the post of Director when in fact the Commission should have re-assigned the applicant to a director's post, the Commission in any case placed itself in such a position as to make compliance with the judgment impossible, or at least difficult.
The defendant replies, first, that the applicant does not state any procedural or substantive defect giving grounds for the annulment which he seeks. It adds that if the Court should refuse to annul the appointment of the applicant as a Principal Adviser, the request for the annulment of the appointment of Mr Dousset must also, on that ground, be rejected.
Even if the Court were to annul the decision appointing the applicant a Principal Adviser that annulment would not necessarily, claims the Commission, necessitate the annulment of the appointment of Mr Dousset.
Since the post previously occupied by the applicant was definitively abolished, which means that his reinstatement in that post is out of the question, the Commission must in that case appoint him to another post as director. But the applicant's argument amounts to a demand, (which runs counter to the case-law of the Court) to be appointed to a particular post, in this case that occupied by Mr Dousset.
Furthermore, the annulment of the appointment of Mr Dousset could not be the consequence of the fact that the Commission placed itself in a position making compliance with the judgment impossible or at least difficult, for the Commission created a post of Principal Adviser, and has not in so doing created any budgetary problems in order to refuse to comply with the judgment of the Court.
C. The refusal to grant the car allowance from 1 October 1968 to 30 July 1969
The applicant alleges that the Commission did not pay him the fixed travel allowance allowed by Article 15 of Annex VII to the Staff Regulations, whereas this allowance is properly accorded to all officials in Grade A 2, even if they are not in fact performing their duties.
The allowance is to cover both representation and travel expenses and the depreciation in the value of the car.
Like his colleagues, the applicant continued to receive this allowance even when abroad or ill, and in no case did an A 2 official have his allowance withdrawn when, for whatever reason, he was not carrying out his duties.
In any case the administration upheld the applicant's point of view before the financial controller and issued him with petrol coupons at a reduced price during the period in question.
Lastly in the applicant's own particular case, he had incurred numerous expenses in connexion with his car during the period in question, owing to the fact that he had not sold his cars because he hoped to become once more an official with the Commission, and also to the travel necessary in connexion with Case 17/68 (costs which he had not taken into account in the final financial settlement in the case).
The defendant replies that the allowance is a fixed reimbursement of expenses granted to certain officials for their travelling expenses within the boundaries of the city where they work, when they are not using a service car. Since the applicant's travel was not in the interests of the service his expenses cannot be reimbursed.
Furthermore the defendant adds that the car allowance is certainly not intended to cover depreciation of one or more cars, as the applicant claims.
Ground of judgments
1. The applicant is for the annulment: (1) of the decision of the Commission of 18 June 1969 in so far as it allocates the applicant to a post as Principal Adviser in Grade A 2 in the Directorate General for Transport; (2) of the decision of the Commission of 15 January 1969 appointing Mr Jacques Dousset Director in the Directorate General for Transport; (3) the decision of the Commission to refuse the applicant a car allowance for the period 1 October 1968 to 30 July 1969.
2. The first complaints to be examined are those directed against the appointment of Mr Dousset.
3. In its judgment of 6 May 1969 the Court of Justice annulled, inter alia, the decision of the defendant of 26 June 1968 whereby, pursuant to Article 4 of Regulation No 259/68, the applicant's employment was terminated.
4. This was the decision, later annulled, which prevented the applicant from applying for a post as Director in the Directorate General for Transport.
5. Whilst the Staff Regulations do not give officials a right to any particular post, that does not mean that an official may not have a legitimate interest in preferring one post to another.
6. This, in particular, is why the Staff Regulations make it possible for an official to be transferred on his request; moreover such preference between posts, even those in the same grade, may be in the interests of the service.
7. The result of the decision annulled by the judgment of 6 May 1969 was that the defendant, when it appointed Mr Dousset on 15 January 1969, made its choice without having at its disposal a factor of assessment which ought to have been taken into account in order for it to be able to exercise its discretion fully.
8. The application is accordingly well founded on this point.
9. On the other hand the decision of 18 June 1969 appointing the applicant to a post as Principal Adviser does not adversely affect him.
10. In fact the posts of Director and of Principal Adviser fall within the same grade and the difference between their respective powers and duties, whilst it may justify a personal preference for one or the other post, yet does not infringe the rule of equivalence between grade and post on which officials are entitled to rely.
11. Furthermore this decision is not such as to hinder the Commission in the exercise of its discretionary power when, following the present judgment, it comes to fill the vacant post of Director in the Directorate General for Transport.
12. The application on this point is inadmissible.
13. The applicant further asks for the annulment of the refusal by the defendant to grant him the car allowance allowed for by Article 15 of Annex VII to the Staff Regulations for the period prior to his reinstatement in Grade A 2.
14. The car allowance, whilts it is a fixed amount, is justified only if the vehicle can be used in the interests of the service.
15. However, during the period in question the applicant had been relieved of his duties and responsibilities within the service.
16. Accordingly the application is unfounded on this point.
Costs
17. According to Article 69 (2) of the Rules of Procedure of the Court of Justice the unsuccessful party shall pay the costs.
18. However, according to Article 70 of the Rules of Procedure the costs incurred by institutions in actions involving servants of the Communities are payable by the former.
19. It is also appropriate to apply in the present case Article 69 (3) of the Rules of Procedure according to which the Court may order that the parties bear their own costs in whole or in part.
20. Since both parties have failed in one or several of their claims, the applicant should bear one half of his own costs.
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 Treaty establishing the European Economic Community, especially Article 179; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 91 ; Having regard to Article 4 of Regulation No 259/68, THE COURT (First Chamber) hereby:
1 Annals the decision of the Commission of 15 January 1969 appointing Mr Jacques Dousset Director in the Directorate for Harmonization, Coordination and Financial Control of Infrastructures;
2 Dismisses the application against the decision of 18 June 1969 as inadmissible;
3 Dismisses the application in so far as it relates to the decision of the Commission not to pay the applicant the fixed travel allowance;
4 Orders the defendant to pay one half of the costs of the applicant.