JUDGMENT OF 16. 3. 1971 — CASE 48/70 BERNARDI v EUROPEAN PARLIAMENT

In Case 48/70

THE COURT (First Chamber) composed of: A. M. Donner (Rapporteur), President of Chamber, R. Monaco 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 which form the basis of the proceedings and the procedure may be summarized as follows:

The applicant entered the service of the European Parliament on 10 October 1966 and was established on 1 May 1969 in Grade L/A 7 (Italian Translation Section).

The dispute which is at the basis of the present proceedings bears upon two distinct points:

On the one hand, the applicant objects to the fact that of 17 mission posts granted to the Italian translation section on the occasion of the sessions of the European Parliament in Strasbourg only two posts are granted in turn to ten officials whilst one post in particular is granted permanently to a temporary servant.

On the other hand, the applicant considers that he has suffered damage because of the fact that on two occasions Mrs Annamaria dell' Omodarme, who is, like the applicant, an assistant translator, was called upon temporarily to occupy a post as a translator (from 15 December 1968 to 15 September 1969 and as from 5 January 1970). In fact the applicant is of the opinion that Mrs dell' Omodarme has abilities, qualifications and experience which are qualitatively and quantitatively inferior to his.

By letter of 6 April 1970 the applicant made an appeal through official channels to the appointing authority with a view to having the basis of his complaint on these two points accepted.

By letter of 25 June 1970 the Secretary-General of the European Parliament rejected that complaint.

The applicant considered on the one hand that under the limitation period of two months laid down by Article 91 (2) of the Staff Regulations his complaint had been rejected by implication and stated on the other hand that such rejection had later been confirmed by the said letter of 15 June 1970 and brought the case before the Court by an application dated 6 August 1970 lodged in the Court Registry on the same date.

The written procedure followed the normal course.

By order of 13 January 1971 the First Chamber of the Court asked the defendant to lodge the internal decision of the Bureau of the European Parliament of 12 December 1962 nominating the appointing authority, as well as to reply to questions concerning the description of Mrs dell' Omodarme's post and of those which she occupied temporarily and concerning the duties which Mrs dell' Omodarme had to carry out in these different posts.

The defendant complied with these requests by letter of 26 January 1971.

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

The parties presented oral argument at the hearing on 2 February 1971.

The Advocate-General delivered his opinion at the hearing on 10 February 1971.

II — Conclusions of the parties

In the application the applicant claimed that the Court should:

‘accept the present application as being in due form and declare that it was made in good time; declare that it is admissible, since the applicant has a legitimate interest in contesting the measure criticized; declare that the application is well-founded and consequently, declare the temporary postings granted to Mrs Annamaria dell' Omodarme to be null and void for the periods mentioned under (b) above; order the Parliament to take all measures arising from the judgment to be delivered; order it to pay the costs of the proceedings; take note that the applicant reserves the right to make, where appropriate, during the proceedings further submissions of fact and of law; take note that he reserves the right to have the defendant produce during the proceedings all documents, files and other material by which the Parliament intends to prove the assertion of the Secretary-General, Mr Nord, in the third page of his letter of 25 June 1970, to the effect that the formal qualifications and merits of the applicant are inferior to those of Mrs dell' Omordarme’.

The defendant contended that the Court should:

‘declare the first head of the application to be inadmissible; declare the second head of the application to be inadmissible to the extent to which it is directed against the decision of the Secretary-General of 4 December 1968 giving a temporary post to Mrs dell' Omodarme; declare the second head to be admissible to the extent to which it is directed against the decision of the Secretary-General of 6 January 1970 giving a temporary post to Mrs dell' Omodarme; alternatively as to the first head of the application and as to the first part of the second head of the application, and principally as to the second part of the second head of the application, declare the application to be unfounded; dismiss it; make an appropriate order as to costs’.

In the reply the applicant specified and amplified his conclusions by asking that the Court should:

‘I. Take note of the applicant's conclusions regarding the first part of his appeal through official channels as regards the travel to Strasbourg, declare his conclusions to be well-founded and accordingly rule on this head of the claim: (a) that the European Parliament must in the interests of the service also take account of the comparative merits of servants for the purposes of its mission orders of an ordinary nature which are permanently and highly coveted, such as those for Strasbourg, (b) that the Parliament cannot, as is apparent from the opinion of the Staff Committee of 1 April 1970, grant a mission of a permanent nature to a “temporary” servant to the disadvantage of other “older established and better qualified” servants. II. As regards the criticized temporary appointments, (a) declare that the two appointments in question were made by an authority lacking the necessary jurisdiction and that the appointments lack an expressly indicated purpose and basis; (b) consequently declare them to be null and void; (c) declare that the application is in any case admissible in respect of the two appointments, since the applicant was only belatedly informed of what had happened; (d) in the event that the Court arrives at the conclusion that the application is inadmissible as being out of time as regards the first of the temporary appointments, declare that in any case the second must be annulled for lack of jurisdiction, failure to observe procedural requirements and misuse of powers, as well as for the lack of an expressly indicated purpose and basis; (e) take note that Mr Bernardi offers to prove to the extent necessary: (1) that the temporary appointments in question were not necessary in the interests of the service; (2) that the same temporary appointments were granted without the least prior information and without sufficient a posteriori information and without the knowledge of colleagues; (3) that they had the sole purpose of giving the candidate who benefited from them better prospects of promotion, if not of procuring for her a not inconsiderable financial advantage; (4) that the very fact that this temporary post was granted twice to the same person had no other reason than that mentioned under (3), that is to say, a personal advantage; (f) declare this offer of proof to be relevant and cogent and consequently to allow the applicant to give proof by all legal means, and more particularly by witnesses; (g) in that case take all legally necessary measures and reserve the costs. III. To the extent to which the Court can already deliver judgment on the application, order the Parliament to pay the costs of the proceedings.’

In its rejoinder the defendant gave further particulars of its conclusion contending that the Court should:

‘reject the submissions, conclusions and offers of proof of the applicant; find for the defendant as regards the conclusions in its statement of defence; furthermore declare that the second head of application is inadmissible for lack of any interest on the part of the applicant as is apparent from his explanations in the reply and consequently dismiss it.’

III — Submissions and arguments of the parties

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

1. First head of the application

(a) Admissibility

The defendant points out on the subject of the complaint concerning missions to Strasbourg that the applicant stated in his originating application that he left the decision to the discretion of the Court and did not formulate a request or conclusion in his application. Consequently that head of the application is inadmissible. It is equally inadmissible because of the fact that the complaint through official channels does not mention the name of the temporary servant benefiting from a ‘permanent’ mission order for Strasbourg. Lastly the request concerns a certain administrative practice and not an act adversely affecting the applicant.

In the reply the applicant points out that it follows from the letter of the Secretary-General of 25 June 1970 that the defendant was quite aware of the identity of the temporary servant mentioned by the complaint. On the other hand, he asserts that by leaving the decision to the discretion of the Court he intended to submit to it the whole of the dispute between himself and the defendant.

In its rejoinder the defendant repeats the objection of madmissibility which it raised. It considers that the conclusions put forward in the reply to be also inadmissible because they are not of time and because they ask the Court to give judgment in a general manner by laying down rules.

(b) On the substance of the case

In order to dispute that this head of the application is well-founded, the defendant refers to the reasoning contained in the reply to the complaint. It is specified there that the missions to Strasbourg are neither a favour nor a right but that they are a duty imposed by the authority in the exercise of its discretionary powers and that, moreover, in respect of their position in the service there is no distinction between temporary servants and officials.

2. Second head of the application

(a) Admissibility

The defendant mentions that by a decision of 4 December 1968 Mrs dell' Omodarme was for the first time called upon to carry out duties in a temporary posting, a decision which was displayed in the premises of the institution on 19 December 1968. Considering that the period of time within which an application could be made against that decision began running on the latter date, the defendant submits that the application is in that respect out of time and consequently inadmissible.

The applicant disputes that this first decision was duly published and alleges that the Staff Bulletin published it—although incompletely—after a delay of nearly a year. It was only on 25 March 1970, after asking for information on this subject, that the applicant obtained full information concerning that decision from a letter of the Director-General of Administration of the Parliament.

In its rejoinder the defendant maintains that the appointments of Mrs Annamaria Dell' Omodarme to temporary postings were immediately displayed in its premises and that the first appointment was published in the Staff Bulletin of November-December 1968, distributed on 20 June 1969.

The defendant alleges that the application is also inadmissible in other respects since, on the one hand, at the date of the decision concerning the first temporary posting the applicant had not yet been established, so that he had no interest in contesting that decision. On the other hand, the statement in the conclusions of the applicant that the temporary posting of Mrs dell' Omodarme was not necessary is inadmissible. Assuming such criticism to be justified, the applicant cannot ask to be appointed instead of Mrs dell' Omodarme. He therefore had no interest in criticizing the appointments referred to in the application.

In disputing this last submission or inadmissibility the applicant observed during the oral procedure that in reality his interest in the present proceedings lies not in any claim which he might have to be appointed to the temporary post in question instead of Mrs dell' Omodarme, but in his anxiety not to see the latter given advantages with a view to a later promotion for which both he and the said lady were eligible.

(b) The substance of the case

The applicant complains in the first place that the contested decisions were secret in that the second decision still had not been published at the time when he made his application whilst the first had been published only after a delay of a year.

Furthermore the applicant alleges that because of the very concise nature of Article 7 (2) of the Staff Regulations, a certain number of problems arise in respect of temporary postings.

On the one hand, that provision does not resolve the question whether decisions on temporary posting were a matter for the appointing authority or whether they could be taken on the purely administrative level. However, it is only on the latter hypothesis that the decisions in question could validly have been taken by the Secretary-General.

On the other hand, Article 7 (2) contains no guarantees concerning procedure and substance which must attach to the taking of decisions in this field. The choice of persons appointed to a temporary posting assumes great material importance because the fact of having carried out the duties involved in a temporary posting places the person concerned in a better position to be chosen for a possible later promotion, so that one could even describe it as a ‘preliminary promotion’. Having regard to this material importance of the temporary posting, conformity with Article 5 (3) must require the competent authority to ensure adequate publicity in cases requiring a temporary posting (‘preliminary vacancy notices’) in order to give as far as possible every official concerned an opportunity to occupy temporarily a higher post. On the other hand, the repeated appointment of the same person to a temporary posting is in any case contrary to the spirit of the Staff Regulations and amounts to a misuse of powers.

Furthermore the applicant argues that the decision on the temporary posting must be preceded by an examination of the comparative merits of the officials concerned. However, the two tests in which both himself and Mrs dell'Omodarme had taken part and which were referred to by the Secretary-General in his reply to the complaint constitute an insufficient basis of comparison. In that respect he again specifies his diplomas and professional qualifications.

The defendant replies to the complaint of secrecy by asserting that the two decisions in question were properly displayed in its premises and that furthermore it is not responsible for any delays in the publication of the Staff Bulletin. Further, the publication of such decisions is not even provided for in the second paragraph of Article 25 of the Staff Regulations.

As to the criticisms concerning the decisions as such, the defendant observes that the Staff Regulations in no way equate decisions on temporary postings with promotions and that, consequently, any argument based on a similarity between the two procedures is unfounded. If he wished to be consistent the applicant should recommend that each temporary posting should be allocated to each official in turn, which would be absurd and contrary to the interests of the service. Decisions on temporary postings must necessarily form part of the discretionary power of the competent authority, subject always to the possibility of the rejected ‘candidate’ showing that there has been a misuse of powers affecting him. This was not proved by the applicant and certainly cannot be deduced from a comparison of the respective qualifications of the applicant and Mrs dell'Omodarme as they appear not only from the results of the two competitions already mentioned but also from the respective probation reports and periodic reports.

The defendant again observes that on 5 January 1970 — the commencing date of the second temporary posting of Mrs dell'Omodarme — the latter was capable of being promoted to Grade L/A6 (temporary grade), whilst the applicant was not.

In his reply the applicant mentions that under a decision of 12 December 1962 of the Bureau of the Parliament, the Secretary-General's power of appointment extends only to posts below Grade L/A6. Consequently any temporary appointment to a post in a higher grade emanating from the Secretary-General would not only be voidable but void.

Furthermore the applicant states that in all respects except that of limitation in time a temporary posting amounts to promotion. Consequently there is reason under a general principle of law to fill the gaps in the rules on temporary postings by applying by analogy the provisions governing promotion. It follows that a decision making an appointment to a temporary posting is in order only if

the temporary posting includes the actual performance of duties different from and of a higher level than, the normal duties of the servant in question;

a minimum of prior publicity allowing the officials concerned to declare their interest (cf. the second paragraph of Article 4 of the Staff Regulations);

the second paragraph of Article 25 of the Staff Regulations were observed;

the decision on the temporary posting were preceded by a consideration of the comparative merits of the officials concerned (cf. Article 45 of the Staff Regulations);

a representative of the Staff Committee were called upon to participate in the choice (cf. Article 9 (3) of the Staff Regulations in conjunction with Article 3 of Annex III).

The applicant alleges that in particular the first condition, which is fundamental and was incorporated in Article 7 (2) of the Staff Regulations, was not observed in the present case, since in the post to which she was appointed to occupy temporarily Mrs dell'Omodarme had neither authority over her colleagues in grade L/A 7, nor was given duties superior to theirs. In order to replace an absent translator, which was the intention of the contested decisions, it would in fact have been sufficient to distribute the same work differently among the translators available. Consequently any interest of the service is lacking in the present case.

The applicant asserts further that the observation by the defendant concerning the possibility of promoting Mrs dell'omodarme as from 5 January 1970 is irrelevant in the present case and that furthermore Mrs dell'Omodarme was not capable of being promoted on the date of commencement of the first temporary posting.

Finally the applicant offers to prove various facts of such a nature as to support his conclusions.

In its rejoinder the defendant disputes that the fact that an appointment or a nomination emanating from an authority lacking the necessary jurisdiction renders the measure void. The measure thereby merely becomes open to challenge within the limitation period prescribed for applications.

Furthermore the provisions of the Staff Regulations show that temporary appointments may legitimately be made by an authority which is not formally the appointing authority. The difference between the wording of paragraphs (1) and (2) of Article 7 is of importance in that respect.

There is no basis for putting appointments to temporary posts and promotion on the same footing.

As concerns the usefulness of temporary postings, the defendant states that there is no difference in the nature of the duties of translator and those of assistant translator. The difference is rather one of qualification, the translator being more experienced and as a general rule being given more complex work. Nevertheless it is undeniable that the evaluation of the reasons governing an appointment to a temporary posting is exclusively for the administration. Consequently the offers of proof of the applicant in the reply are inadmissible.

During the oral procedure the applicant stated inter alia:

that the decision of the Bureau of the European Parliament of 12 December 1962 does not distinguish between the two paragraphs of Article 7 of the Staff Regulations when it provides for its application to Officials … in the language service up to Grade 6 inclusive' by ‘the President on a proposal by the Secretary-General’ acting as appointing authority;

that, from the replies made by the defendant to the questions put to it by the Court, there does not appear a sufficiently clear distinction between Mrs dell'Omodarme's post, on the one hand, and those which she occupied temporarily, on the other, to justify the decisions on temporary postings under Article 7 of the Staff Regulations.

In reply to the submission based on the decision of the Bureau of the Parliament, the defendant alleges that it follows from the very wording of Article 7 that decisions on temporary postings come within the jurisdiction not of the appointing authority but of the authority which is required to organize the internal distribution of work in the interest of the service, that is to say, in the present case, the Secretary-General of the Parliament. Consequently the problem of the power of appointment which the said decision of the Bureau is intended to settle does not even apply in the present case.

Grounds of judgment

1. By application lodged on 6 August 1970 the applicant brought an action before the Court concerning on the one hand an implied decision of rejection consequent upon the silence of the defendant and an express decision of rejection of 25 June 1970 concerning the grant of travel orders for sessions of the European Parliament in Strasbourg and concerning on the other hand the annulment of the decisions of 4 December 1968 and of 5 January 1970 appointing on both occasions a colleague of the applicant to a temporary posting as translator.

The application in so far as it relates to the mission orders

2. In his originating application the applicant, whilst criticizing the manner in which in the Italian section of the Language Service of the European Parliament the travel orders are allocated to translators on the occasion of the sessions of the Parliament in Strasbourg, failed to formulate any specific claim or conclusion in this respect.

3. In his reply he submitted that the Court of Justice should decide that the European Parliament ‘must in the interest of the service take account in respect of its travel orders of the comparative merits of servants and cannot grant a mission of a permanent nature to a temporary servant to the disadvantage of other older established servants who are better qualified’.

4. These conclusions were not formulated in the application—contrary to Article 38 of the Rules of Procedure of the Court—and are therefore inadmissible.

5. Furthermore, by giving a ruling in the terms sought the Court would be interfering with the exercise of the powers of the Parliament.

6. Consequently the first head of the application must be dismissed as inadmissible.

The application for annulment

7. The applicant argues in the first place that because of their nature appointments to temporary postings are equivalent to a ‘preliminary promotion’, since according to him the fact of having occupied a post temporarily puts the person concerned in a better position for possible promotion to that post.

8. Consequently, according to the applicant, under the third paragraph of Article 5 of the Staff Regulations the requirement of publicity laid down in the second paragraph of Article 4, the requirement of the posting of decisions in the premises of the institution laid down in the second (sic) paragraph of Article 25 and the provisions of Article 45 of the Staff Regulations are applicable by analogy.

9. In any case the decisions provided for in Article 7 (2) are said to fall only within the jurisdiction of the appointing authority.

10. Since this line of argument affects other points in the dispute, even that of the admissibility of the application, it is appropriate to consider it before any other submission.

11. In the drafting of the provisions of the Staff Regulations their authors endeavoured to indicate their exact scope by precise wording.

12. There is no reason to extend their scope by analogy to situations to which they do not expressly refer.

13. Consequently the formal requirements laid down in the second paragraph of Article 4 and in Article 45 which mention only appointment and promotion cannot be extended to cases of temporary postings which amount neither to an appointment nor to a promotion within the strict meaning of these expressions.

14. On the other hand, the second paragraph of Article 25 which applies inter alia to decisions determining administrative status must be regarded as applicable also to decisions concerning temporary postings within the meaning of Article 7 (2).

15. Lastly it follows from the combination of the first two paragraphs of Article 7 that the power to make temporary postings mentioned in the second paragraph belongs to the authority mentioned in the previous paragraph.

The admissibility of the application

16. The applicant requests the annulment of the decisions by which Mrs Annamaria dell'Omodarme, an assistant translator, was called upon to occupy temporarily a post of translator from 15 December 1968 to 15 September 1969 and from 5 January 1970 respectively.

17. The defendant considers that the application against the first decision is out of time and consequently inadmissible, since the appeal through official channels against that decision was lodged on 6 April 1970, that is to say, more than three months after the notification of the decision to the person concerned.

18. By the expression ‘notification to the person concerned’ Article 91 of the Staff Regulations clearly applies to the written communication to the official concerned which the first paragraph of Article 25 of the Statute requires in the case of every decision relating to a specific individual.

19. It is not disputed that as regards the first of the two contested decisions, written communication took place more than three months before 6 April 1970.

20. The applicant considers, however, that the expiration of the limitation period for making an application cannot be raised against him, since the compulsory posting of the contested decision in the premises of the institution did not take place.

21. The defendant, however, has sufficiently shown by the production of the documents posted that in the present case the decision was posted between 19 December 1968 to 2 January 1969.

22. Consequently the objection of inadmissibility is well founded so that the application must be dismissed to the extent to which it refers to the first of the two contested decisions.

23. The defendant also argues that the applicant has no interest in asking for the annulment of the disputed decisions.

24. It alleges in this respect that if, as the applicant maintains, the decision on the temporary posting must be annulled because of the lack of any appreciable difference between the duties carried out by Mrs dell'Omodarme in her grade and those in the temporary post which was given to her, there would not have been a temporary posting, so that the applicant himself would have no interest in asking for the annulment of the contested measure, since for the same reason there could be no question of his being given the said temporary posting.

25. If it were shown that the temporary appointment had no purpose, it would follow that it did not take place in the interest of the service, but had the purpose of granting the servant who benefited from it an unjustified advantage, particularly by way of differential allowance.

26. Furthermore the repeated grant of temporary posts is capable of putting a servant in an advantageous situation for possible promotions or competitions.

27. The conferring of such advantages on certain officials, which is not justified in the interests of the service, is capable of adversely affecting their immediate colleagues because it infringes the principles of equality of treatment and of objectivity which must govern the public service.

28. The contested measures were thus capable of affecting the applicant adversely.

29. The application is consequently admissible.

The submission of lack of jurisdiction

30. The applicant claims that by adopting the contested decision the Secretary-General of the European Parliament exceeded the powers conferred on him by the decision of the Bureau of 12 December 1962, determining the appointing authorities following the implementation of the Staff Regulations of Officials.

31. That decision provides that ‘the powers devolving under the Staff Regulations of Officials upon the appointing authority … shall be exercised … by the President, on a proposal of the Secretary-General… for application to officials in Category A up to Grade 7 inclusive and of the Language Service up to Grade 6 inclusive of provisions 1, 7, 11 etc…’.

32. By mentioning the officials in the grades indicated, that decision clearly includes by that expression the application of the said articles for the purposes of filling posts in those grades.

33. Otherwise the promotion of an official from Grade A 8 or B 1 to a post in Grade A 5, 6 or 7, as well as the appointment of persons engaged from outside to all the grades in Category A, would not be covered by the provision quoted and would therefore fall within the jurisdiction of the Secretary-General, which would be contrary to the wording of the decision.

34. Consequently the application of Article 7 of the Staff Regulations for the purpose of calling upon an official to occupy temporarily a post in the career bracket of translator covering Grades L/A 5 and L/A 6 is within the jurisdiction of the President acting upon a proposal of the Secretary-General.

35. However, it is established and not disputed that the contested decision was not taken by the President but by another authority.

36. It follows from the foregoing that the contested decision must be annulled.

Costs

37. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

38. Since the defendant has substantially failed in its submissions it must be ordered to pay the costs.

Upon 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 Treaties establishing the European Communities; Having regard to the Convention on certain Institutions common to the European Communities; Having regard to the Protocols on the Statute of the Court of Justice annexed to the Treaties establishing the ECSC, the EEC and the EAEC; 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 Articles 4, 7, 25, 45 and 91, THE COURT (First Chamber) hereby :

1 Annuls the decision of the Secretary-General of the European Parliament of 6 January 1970 calling upon Mrs dell'Omodarme temporarily to occupy a post of translator;

2 Orders the European Parliament to pay the costs.