JUDGMENT OF 9. 12. 1982 — CASE 191/81 PLUG v COMMISSION

In Case 191/81

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General : G. Reischl Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

Mr Onno Plug was employed by the European Association for Cooperation [hereinafter referred to as “the Association”] from 1966 to 1976 under a contract for an indefinite period. Under that contract, he performed various duties and was subsequently placed at the disposal of the Commission of the European Communities which he represented in Benin in 1975 and in Zambia in 1976.

At the beginning of 1977, the applicant terminated his contract with the Association and signed a contract with the Commission on 9 June 1977 with retroactive effect from 23 May 1977 under which he was recruited as a temporary servant in order to perform the duties of head of division in the Directorate General for Development, Divison VIII-B-2, and was classified in Grade A 3, Step 4. That contract was concluded for a period of one year, following a decision adopted by the Commission on 15 December 1976, and provided for a probationary period of six months. When the contract expired on 23 May 1978 it was not renewed but was merely extended until 22 September 1978; Mr Plug was informed that renewal was impossible on the ground that appointment to the post of head of division was restricted to officials paid out of operating appropriations.

A further temporary contract, albeit for a different post, was concluded between Mr Plug and the Commission on 15 November 1978; it was to take effect retroactively from 23 September 1978 and was to expire on 30 June 1980. Under that contract, Mr Plug was recruited to an ACP temporary post in Grade A 3 as an adviser on relations with the United Nations Conference on Trade and Development (hereinafter referred to as “Unctad”) with the Commission's delegation in Geneva.

When that second contract expired, Mr Plug signed a fresh contract as a temporary servant on 22 August 1980, with retroactive effect from 1 July 1980, for an indefinite period; he was assigned to the Commission's delegation in Geneva but was classified as a “principal administrator” in Grade A 4.

On 22 November 1980, Mr Plug submitted a complaint under Article 90 (2) of the Suf f Regulations in which he sought the annulment of his classification in Grade A 4 and of the description of his duties in the contract of 22 August 1980 and a declaration that he should be classified in Grade A 3, Step 5, in view of his seniority in that grade and the fact that his duties were those of an adviser, and that his financial entitlements should be adjusted accordingly with effect from 1 July 1980. Mr Plug claimed in that connection that in practice he was still carrying out the same duties as those which had been assigned to him under his previous contract. That complaint remained unanswered.

By note of 9 January 1981 from Mr Meyer, Director General for Development, Mr Plug was informed that an official in Grade A 3, Mr Grumbach, was to join the Commission's delegation in Geneva to represent Directorate General VIII. It was stated in that note that Mr Plug was henceforth only “to cooperate” in carrying out the duties assigned to the delegation “under the authority” of the new official, Mr Grumbach. On the tatter's arrival, Mr Plug's accreditation to the international organizations in Geneva was withdrawn on the ground that the grant of such accreditation was restricted to the official from Directorate General VIII.

On 20 January 1981 Mr Plug submitted a further complaint under Article 90 (2) of the Staff Regulations in which he requested primarily the reinstatement of his accreditation — claiming that it was absolutely necessary even for the performance of the duties he was then performing and that the withdrawal of it was “prejudicial to his professional reputation and integrity” — and also a detailed description of his duties. In reply to the second request, Mr Tran van Thinh, the Head of the Commission's delegation in Geneva, sent a note to Mr Plug on 18 March 1981 in which he confirmed the latter's new duties. On 23 June 1981, the Commission belatedly adopted a decision rejecting the applicant's complaints in all other respects.

In those circumstances, Mr Plug brought this action, his application being received at the Court Registry on 22 June 1981.

On 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 any preparatory inquiry. However, the Commission was requested to submit, before the hearing, all the documents in its possession concerning the decision adopted regarding the duties to be performed by the applicant when the contract of 22 August 1980 was concluded.

II — Conclusions of the parties

The applicant claims that the Court should:

Declare the application admissible and well founded;

Consequently,

Primarily:

a) Annul the decision in the contract of employment of 22 August 1980 as a member of the temporary staff, which took effect on 1 July 1980, classifying the applicant in Grade A 4 and describing his duties, and declare that he should be classified in the contraa in Grade A 3, Step 5, and his duties described as those of an adviser, so that the defendant must adjust the applicant's financial entitlements accordingly with effect from 1 July 1980;

b) Annul the decision withdrawing the applicant's accreditation to the international organizations in Geneva and' the decision notified to him on 9 January 1981 relieving him of the duties previously performed by him at the Commission delegation in Geneva and declare that his accreditation must be reinstated and that he must be given back his former duties;

c) Grant the applicant compensation for nonmaterial damage, with interest thereon at the rate of 8% per annum from 22 November 1980 until the date of payment;

d) Annul the implied decisions rejecting his complaints of 22 November 1980 and 20 January 1981:

Alternatively:

a) Grant the applicant compensation for material and nonmaterial damage, with interest thereon at the rate of 8% per annum from 22 November 1980 until the date of payment;

b) Annul, in so far as necessary, the implied decisions rejecting his complaints of 22 November 1980 and 20 January 1981 ;

Consequently, and in any event, order the defendant to pay the costs.

The defendant contends that the Court should:

Dismiss the application as inadmissible inasmuch as it seeks the annulment of the decisions rejecting the applicant's complaints;

Dismiss the application as unfounded;

Make an order as to costs in accordance with the Court's Rules of Procedure.

III — Submissions and arguments of the parties

(a) Admissibility

In its defence, the Commission observes that the applicant seeks the annulment of the implied decisions rejecting his complaints. The defendant points out that an express decision rejecting them was adopted, albeit out of time, and it raises an objection of inadmissibility as regards that head of the applicant's claim inasmuch as the measures involved merely confirm and form part of the contested decision and cannot therefore in themselves be regarded as measures adversely affecting the person concerned (as the Court held in its judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kühner v Commission [1980] ECR 1677).

In his reply, the applicant states the he will rely upon the judgment of the Court in that regard.

(b) Substance

1. First submission

The applicant claims that the defendant has infringed or failed to observe

a) Articles 9 and 10 of the Conditions of Employment of Other Servants of the European Communities [hereinafter referred to as “the Conditions of Employment”];

b) Articles 5 and 7 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as “the Staff Regulations”);

c) the decision adopted by the Commission pursuant to Article 5 of the Staff Regulations describing the duties and powers attaching to each basic post; and

d) the legal principles and rules of law, including the principle that grading must correspond to the post occupied and the principle that measures adopted by the administration are unlawful if vitiated by errors of fact or law or both.

The applicant emphasizes that the contract in question, which was concluded upon the expiry of the contraa of 15 November 1978, concerned the same post with the Commission's delegation in Geneva (principally, relations with Unctad) and came under the same budget heading (A3, ACP/iemporary). In the contract concluded in 1978 the applicant was, in his opinion, correctly classified in Grade A3, Step 5, and his duties were described as those of an adviser. Since under the fresh contract concluded in 1980 he was recruited in order to carry out the same duties as before (which were in practice more extensive as a result of the inclusion of relations with other international organizations in addition to Unctad), those duties should have corresponded to Grade A 3 and to the description of adviser. Moreover, as his post came under a budget heading corresponding to grade A 3 he should have been classified in Grade A 3, Step 5 and not in Grade A 4, Step 4, and his duties should have been described as those of an adviser and not as those of a principal administrator. Accordingly, the applicant must be graded and his duties must be described in accordance with the applicable provisions. It follows from all these considerations that the subsequent decisions withdrawing his accreditation to the international organizations and relieving him of his former duties are unlawful.

The Commission considers in the first place that the applicant's reasoning is based essentially on a comparison between his present grading and duties on the one hand and his grading and duties under his previous contract on the other, and that the comparison is not relevant since two different situations are involved which are governed by separate contracts freely entered into by the parties concerned. The situation should therefore be considered solely in the light of the contract concluded in 1980 which was offered to the applicant on the basis of the Commission's requirements and in view of the exigencies of the service and which was accepted by him. To accept the applicant's argument would be to confer on temporary servants under a contract for a fixed period a right to the renewal of that contract on the same terms, which would be incompatible with both the law of contract and the provisions of the Conditions of Employment. Furthermore, even in the case of a non-contractual relationship governed by the Staff Regulations, the comparison should be not between the present and former duties of an official (or other employee) but between his present duties and his grade in the service (see the Kuhner judgment cited above).

Secondly, the defendant denies that the duties performed by the applicant correspond to those which an official in Grade A 3 is normally expected to carry out. The applicant was recruited as a temporary servant in Grade A 4 in order to carry out the duties corresponding to that grade. The extent of his responsibilities and his rank in the service were explained to him on several occasions, by a note of 9 January 1981 from Mr Meyer, Director General for Development, and by a note of 18 March 1981 from the head of the Commission's delegation in Geneva. The duties described in detail in those notes are indeed those of an official in Grade A4. The applicant's contention that his post comes under the same budget heading as that applicable to his previous contract is equally incorrect since, at the time, he occupied an A 3 temporary post whereas under the present contract he occupies an A 4/A 5 temporary post.

The Commission concedes that pending Mr Grumbach's arrival the applicant may have been obliged to assume responsibilities very similar to those assigned to him under his previous contract. However, that situation arose precisely because Mr Grumbach's transfer to Geneva did not take place as swiftly as would have been desirable. Moreover, the fact that the applicant was required to carry out, on a provisional basis, tasks which were wider in scope than those officially assigned to him cannot confer on him a right to be reclassified, as is clear from the case-law of the Court. That is particularly true in the case of a small department with few members of staff where duties are more interchangeable.

The Commission considers that it was quite justifiable to withdraw the applicant's accreditation to the international organizations since the grant thereof is restricted to the official from Directorate General VIII. The measure complained of accords entirely with the duties performed by the applicant and cannot be regarded as constituting a breach of the provisions referred to, a disguised penalty, or even an error of fact or law.

In reply, the applicant denies claiming that to recruit a person in a grade below that in which that person was recruited in the past is unlawful in itself, or that the performance in practice of duties which are more important than those attaching to the grade in question confers entitlement to reclassification; however, he maintains that a person is entitled to reclassification if the post to which he is assigned by decision of the appointing authority legally deserves a higher grading, and that he is also entitled to a grading and description of duties which are free from any errors. In his application, the applicant refers to his previous duties only in order to support his analysis of the description and classification of the post at present assigned to him by the defendant under the new contract.

Against that background, the applicant maintains that the conclusions drawn by the Commission from the note of 9 January 1981 informing him of the decision to transfer Mr Grumbach to Geneva and specifying his new duties are incorrect. That note reached him more than four months after the contract was concluded and more than six months after it had taken effect. The note had not therefore clarified the terms of the contract but had, on the contrary, distorted them in order to align the facts ex post facto, after the applicant had submitted a complaint, with the unlawful classification and description of his duties contained in the contract. Thus, the contention that following the conclusion of the contract of 22 August 1980 the applicant was no longer under the direct authority of the head of delegation is incorrect since it was not until after 18 March 1981 that that situation arose. Similarly, it is untrue that the withdrawal of his accreditation was an inevitable consequence of Mr Grumbach's arrival. Of all the members of staff seconded to the delegation only the applicant was deprived of his accreditation; at present, even two officials in Category B hold credentials. Accordingly, it cannot seriously be denied that under the new contract the applicant continued from 1 July 1980 to 31 January 1981 to perform in Geneva the same duties as those which he had carried out before under the contraa concluded in 1978. Although it cannot necessarily be inferred therefrom that the appointing authority had decided to assign those duties to the applicant under the new contract, there none the less arises a presumption — which the defendant has not succeeded in rebutting — that such a decision was taken. Moreover, it is highly unusual that there are no documents (minutes, memoranda and so on) predating or coinciding with the conclusion of the contraa which indicate what decision was taken with regard to the duties to be performed by the applicant under the new contract. A further presumption is raised by the fact that although by a note of 27 September 1980, the applicant submitted a complaint against both his classification and the description of his duties, in which he pointed out that he was remaining in Geneva in order to carry out the same duties as before, the Commission, instead of challenging that statement, left it unanswered. The defendant gave no explanation whatever regarding the circumstances which prevented Mr Grumbach from being transferred to Geneva sooner, the date on which the transfer was decided, the reasons for the transfer, or any other details of that kind.

The applicant considers that, in reality, when the new contract was concluded in 1980, it was decided that he should continue to perform the same duties as before. However, that decision was called in question as a result of a difference of opinion between Directorate General I (whose area of responsibility includes the Geneva delegation) and Direaorate General VIII (whose area of responsibility includes relations with Unctad). The conflict was resolved at the applicant's expense. That explains why, initially, under the new contracts he continued to perform the same duties as before, why he received no reply to his note of 27 September 1980, why he was not informed of the decision to transfer Mr Grumbach and to relieve him of his duties until six months after the new contraa had taken effect and why further vexatious measures were taken such as the withdrawal of his credentials, his removal to a small office virtually hidden from view and so on.

In its rejoinder, the Commission argues that it was already clearly stated in the contraa concluded in 1980 that the applicant was being recruited as a principal administrator in Grade A 4. Accordingly, the notes of 9 January 1981 and 18 March 1981 can in no circumstances be regarded as an attempt to distort the contraa. The Commission denies that a dispute occurred between Directorate General I and Direaorate General VIII and was resolved at the applicant's expense. It acknowledges that Mr Plug is at present the only member of staff in the delegation not to possess credentials but it points out that the grant of credentials to staff in Category B is justified by the nature of their duties and that once Mr Grumbach had been provided with credentials, as the representative of Directorate General VIII, it was no longer necessary for the applicant to retain his credentials, account also being taken of the fact that Mr Plug had been entrusted with work which did not involve his participation in international meetings in Geneva.

In the Commission's opinion, the applicant's argument that under the terms of the contract concluded in 1980 he was recruited to perform the same duties as before, that is to say to advise principally on relations with Unctad, has nothing to do with the principle that grading must correspond to the post occupied, inasmuch as that argument is directed against his classification in Grade A 4 in his present contract. Whilst the Commission concedes that under the contract concluded in 1978 Mr Plug acted as an adviser on relations with Unctad to the delegation in Geneva, the' situation created by the hew contract is quite different since that contract is for an indefinite period and the applicant, whose responsibilities are no longer comparable, as regards either their nature or their scope, with those which were previously assigned to him, is now required to assist Mr Grumbach. Since a temporary servant employed under a contract for a fixed period has no right to the renewal of his contract, the Commission was not guilty of a wrongful act, nor did it exceed the bounds of its discretion, by reengaging him on different terms.

The reason for the delay in Mr Grumbach's transfer to Geneva was that although he was already in a sute of readiness to leave for Geneva in June 1980, he was obliged to remain in Brussels on a temporary basis, as acting head of division in his original department (Directorate General VIII, Division A 3) since the official head of division, Mr Russell, had applied for leave on personal grounds.

2. Second submission

The applicant alleges a breach of Article 11 of the Conditions of Employment and of the second paragraph of Article 25 of the Staff Régulations in support of his contention that the decisions withdrawing his international accréditation and relieving him of his former duties are in any event unlawful inasmuch as they do not state thé reasons ori which they are based. Those décisions amount to a repudiation of thé applicant and, moreover, the withdrawal of his credentials is incompatible even with the performance of his présent duties. Those decisions should therefore have stated the reasons on which they were based, particularly since the applicant has never been assessed either in a periodic report, in a report at the expiry of his probationary period or in any report relating tó his efficiency or conduct in the performance of hiš duties.

The Commission contends that the applicant's credentials were withdrawn and his duties were changed not because he was “relieved of his duties” but as a result of the change which the applicant's situation underwent by agreement between the parties on 22 August 1980 when, upon the expiry of his contract for a fixed period, he accepted the offer of a new contract on different terms. The applicant is not entitled to complain about measures resulting from his acceptance of that contract. Nor may he claim to have been adversely affected by the decision to assign different duties to him since it was taken with his agreement and, in view of the fact that no right exists to the renewal of a contract for a fixed period, it was advantageous to him. In any event, the decisions in question are administrative measures which were notified to the officials concerned by internal memoranda and were adopted in order to adjust the structure of the department in order to accommodate the members of staff assigned to it and their individual skills. Accordingly, it is incorrect to regard the measures in question as adversely affecting the applicant. They are management decisions which may not be challenged and need not therefore state the reasons on which they are based in accordance with the provisions relied upon. Furthermore, the manner in which the applicant's credentials were withdrawn and the concomitant grant of credentials to Mr Grumbach clearly show, even to third parties, that the change which took place had nothing to do with the merits or demerits of the applicant but was concerned solely with the organization of the delegation, with the result that Mr Plug's reputation could in no way have been undermined; moreover, he retains his accreditation to the Swiss authorities and, consequently, his diplomatic status. Furthermore, as far as representation of the Community in international organizations is concerned, the Commission must retain a margin of discretion with regard to the organization of its departments; for that reason there is no body of rules governing the grant of credentials in the field in question.

3. Third submission

The applicant alleges breach of, or failure to observe,

a) Article 11 of the Conditions of Employment,

b) Article 24 of the Staff Regulations,

c) the general obligation of prudence and fitting conduct and the duty to afford assistance to officials and to provide for their welfare (“Fürsorgepflicht”), and

d) legal principles and rules of law, including the principles of fairness, distributive justice and good administration and the principle that the administration is liable for wrongful acts or omissions and must provide compensation for the resulting damage.

The applicant maintains that it is necessary to consider and analyse the specific circumstances in which the contraa of 22 August 1980 was concluded. At the time, the applicant had been employed by the defendant for over 14 years. In 1977 he terminated his contraa with the Association at the defendant's request, relying upon assurances that he would be established upon the expiry of two one-year contracts as a temporary servant, provided that he completed a probationary period of six months and participated, on the expiry of the second contraa, in an internal competition. Moreover, the contraa concluded in 1977 provided for classification of the applicant in Grade A 3, Step 4, as did the first contract assigning him to Geneva which was concluded in 1978 when, at the time of signature, it was understood that upon the expiry of the contraa on 30 June 1980 the applicant would be appointed as head of a Commission delegation to an ACP State unless, in the meantime, an acceptable administrative solution had been found. In the light of those very specific circumstances the applicant's demotion as regards his grading and the description of his duties in his present contraa constitutes a failure to comply with the legal provisions, obligations and principles referred to in this submission. There can be no justification for a situation in which the same person performs the same duties in the same place, one day in Grade A3 as an adviser and the next day in Grade A 4 as a principal administrator. Nor is it justifiable that after more than 14 years' service and three years after his recall from Zambia, when he relied upon the abovementioned conditions and promises, the applicant should be classified in a lower grade than previously and be assigned less important duties.

The fact that the contraa concluded in 1980 was a new contraa cannot, in the circumstances of the case, justify the applicant's demotion. On the contrary, the view must be taken that the Commission has failed to discharge its general duties towards its officials and other employees. The withdrawal of the applicant's accreditation to the international organizations and the fact that he was relieved of his former duties merely aggravate the breaches complained of. Finally, the fact that the applicant was requested not only to move out of his office but also to move into a small office not visible to visitors to the delegation bears witness to the vexatious nature of those decisions.

The Commusion points out that the duty to provide for the welfare of its officials is not embodied in any provision of the Staff Regulations and that it reflects the balance which must be maintained between on the one hand the principle that the administration is alone responsible for the organization of its departments, which it must be able to determine and to adjust it in the interests of the service, and on the other the obligation incumbent on the administration not to infringe the rights conferred upon officials by the Staff Regulations (judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner, cited above). That rule of conduct applies only to employment relationships governed by the Staff Regulations. However, servants recruited on a contraaual basis may not, as regards their recruitment, rely on the Commission's duty to provide for the welfare of its officials since, far from having to accept passively a decision adopted in relation to them by the official authority, they arę in a position to agree and to define, in conjunction with the administration, the terms and conditions of their employment. The applicant's argument to the effea that the Commission has failed to discharge its duty to provide for the welfare of its officials inasmuch as the contraa concluded in 1980 does not contain the terms included in previous contracts is a total negation of the contraaual system applicable to auxiliary and temporary staff, by contrast with the Staff Regulations which are applicable to officials, and is in any event untenable since temporary contracts for a fixed period carry no right of renewal. As regards the issue of accreditation to the international organizations, the applicant has no right to the credentials in question, since the grant thereof is normally restricted to the official from Directorate General VIII. Accreditation constitutes a specific feature of a given post and is associated with the duties performed by an official rather than with him personally. Accordingly, in that regard also, there is no need to weigh the rights of the administration against those of the applicant.

In his reply, the applicant concedes that, if taken out of context, his argument may appear to deny the validity of the contractual system but he emphasizes that if the context is taken into account, as it should be, it becomes apparent that the Commission has acted in breach of its duty to assist its officials, misused the contractual system and exceeded its rights. It must be borne in mind that the situation of a person with over 14 years' service who has been promised establishment is quite different from that of a person who applies for employment for the first time as a temporary servant. Thus, a decision which pńma Jacie is not illegal may become unlawful according to the circumstances of the case. The applicant was already in the defendant's employment when he was working for the Association. The reasons for the termination of his contract with the Association can be explained solely by reference to the contents of a letter sent on 9 February 1977 by Mr Ç. Cheysson, a Member of the Commission, to the President of the Republic of Zambia in which it is stated that the applicant had been sent to Zambia by the Commission as a senior representative in view of his extensive experience of African problems and that he was subsequently recalled to Brussels only because the Commission intended to appoint him as head of the division responsible for relations with Central, East and southern Africa, by reason of his specific experience. It follows logically from the intention expressed in that letter that the Commission wished to establish the applicant as Head of Division VIH-B-2, which is confirmed by the fact that he was assigned to a post which was vacated as a result of an internal transfer and which is remunerated out of the operational budget. The applicant's claim that the Commission promised to establish him in the future is therefore supported by a series of objective factors and, what is more, his contentions to that effect in his application have not been denied.

As regards the Commission's failure to honour its promise to establish him as Head of Division VIII-B-2, the applicant submits that the obstacle consisting in the fact that appointment to that post is restricted to officials paid put of operating appropriations could easily have been overcome by the organization of an internal competition to fill the vacancy in question and he maintains that he would undoubtedly have passed that competition in view of his experience and his ability. With regard to his acceptance of his present contract upon the expiry of the first contract assigning him to Geneva, the applicant emphasizes that it is wholly unrealistic to speak of freedom of choice on his part, in view of his situation at the time — a temporary servant does not, upon the expiry of his contract, qualify for unemployment benefits. In any event, he signed the contract subject to the reservations set out in his note of 27 September 1980.

In its rejoinder, the Commission argues that the applicant's period of employment in the service of the Association cannot, in itself, be regarded as employment in the service of the Commission since he was recruited by the defendant for the first time by contract of 9 June 1977. The Commission disputes Mr Plug's assertion that it “recalled” him to Brussels and maintains that it merely offered him a temporary contract for a fixed period which he accepted; that fact cannot justify his claim that the Commission's duty to provide for the welfare of its officials should be discharged more generously. It also disputes the significance of the letter to President Kaunda of Zambia since it was written “in a diplomatic context”. Finally, it contests the validity of the “promise” to establish the applicant since it was made by persons without any power whatever to bind the Commission and did not, in any event, entail his establishment as a matter of course but merely his participation in an internal competition which he would not necessarily have passed.

4. Compensation

The applicant seeks primarily compensation in kind for the damage which he claims to have suffered as a result of the decisions complained of, that is to say he seeks a declaration that he must be classified in the contract in Grade A 3, Step 5, and his duties described as those of a adviser, that his accreditation to the international organizations must be restored and that he must be given back his former duties. He maintains, moreover, that such compensation would be incomplete unless accompanied by separate compensation for the nonmaterial damage which he claims to have suffered in the meantime.

In the alternative, if the Court is unable to grant compensation in kind as a result of the application of other principles, such as the principle of the separation of judicial and administrative powers, the applicant seeks compensation for material and nonmaterial damage sustained as a result of the defendant's wrongful acts, in the form of damages and interest thereon, and he points out that for that purpose account should be taken of the loss of income resulting from his downgrading in the contract and from the damage to his reputation and to his professional integrity caused by the fact that he was deprived of his credentials and relieved of his former duties.

Those claims for compensation are broken down as follows: the applicant seeks, in his principal claim, the payment of damages assessed ex aequo et bono at 2500 Swiss Francs, in addition to compensation in kind. As regards his alternative claim, he maintains that the damage suffered by him consists of

a) the loss of income resulting from the downgrading of his contraa,

b) the damage to his reputation and professional integrity caused by the fan that he was deprived of his accreditation and relieved of his former duties and by his demotion, and

c) the harm to his career since his recall from Zambia.

As regards the loss of income, the damage could be remedied by an order that the defendant must pay the applicant the remuneration which he would have received if in the most recent contract he had been classified in Grade A 3, Step 5. As regards the damage to his reputation, the applicant proposes that the compensation should be assessed ex aequo et bono at 5000 Swiss Francs. As regards the harm to his career, the applicant points out that he was entitled either to be established or at least to have the procedure for establishment set in motion and argues, moreover, that establishment would have given him security of tenure, continuity of his duties and therefore a stable level of remuneration, the right to transfer to the Community's pension scheme the pension rights which he acquired under his contract with the Association, and opportunities for promotion. It must also be borne in mind that the applicant agreed to terminate his contract with the Association only because he was promised establishment and the prospect of a subie future and of advancement in his career, and that instead of an allowance upon the expiry of his contract he received a resetdement allowance, resulting in a shortfall of around 2500000 Belgian francs. The applicant therefore considers that the compensation which he should receive may be classified ex aequo et bono at 150000 Swiss francs.

In its rejoinder, the Commission reiterates that the arguments relied upon by the applicant are unfounded and maintains that:

a) The applicant has failed to prove that he has sustained damage which cannot be remedied by compensation in kind;

b) In the light of developments in the course of the proceedings, any claim for compensation in kind or damages equivalent thereto which does not relate to the applicant's present contract, which was concluded on 22 August 1980, should be dismissed.

Having made those observations, the Commission reiterates its previous conclusions.

IV — Oral procedure

At the sitting on 1 July 1982. oral argument was presented for the applicant by E. Lebrun, of the Brussels Bar, and for the Commission of the European Communities by H. Van Lier, a member of its Legal Department, acting as Agent.

The Advocate General delivered his opinion at the sitting on 7 October 1982.

Decision

1. By application lodged at the Court Registry on 22 June 1981, Mr Onno Plug, a temporary servant of the Commission of the European Communities, brought an action for annulment of his classification in Grade A 4 and of the description of his duties in the temporary contract of 22 August 1980, for annulment of the decision of 9 January 1981 relieving him of his former duties and withdrawing his accreditation to the international organizations in Geneva, for an order that the Commission must pay him compensation for material and nonmaterial damage which he claims to have suffered as a result of the abovementioned decisions and, finally, for annulment of the implied decisions rejecting his complaints of 22 November 1980 and 20 January 1981.

2. From 1966 to 1976, the applicant was employed by the European Association for Cooperation [hereinafter referred to as “the Association”] under a contract for an indefinite period. During that period, he was placed at the disposal of the Commission of the European Communities which he represented in Benin and in Zambia.

3. At the beginning of 1977, the applicant terminated his contract with the Association in order to accept a temporary contract offered to him by the Commission. Under that contract the applicant was recruited for a period of one year, as from 23 May 1977, as head of division in Grade A 3, Step 4. That contraa, which expired on 23 May 1978, was extended until 22 September 1978 on the ground that renewal was impossible, according to the Commission, since appointments to the post of head of division are restricted to officials paid out of operating appropriations.

4. However, the applicant was reengaged by the Commission under a new contract concluded on 15 November 1978, which was to take effect as from 23 September 1978 and to expire on 20 June 1980, and was assigned to an ACP temporary post as an adviser in Grade A 3 on relations with the United Nations Conference on Trade and Development (Unctad), attached to the Commission's delegation in Geneva.

5. On 22 August 1980, the Commission offered the applicant a further contract with effect from 1 July 1980. Unlike the previous contract, the new contract provided that the applicant was to be engaged for an indefinite period as a principal administrator in Grade A 4, Step 4, and was to be attached to the Commission's delegation in Geneva.

6. The applicant signed that contract and returned it, but appended a note dated 27 September 1980 expressing a reservation regarding his classification. That reservation was based, inter aita, on the fact that in his previous contract he was classified in Grade A 3 and that his duties in Geneva had remained unchanged.

7. On 22 November 1980, Mr Plug submitted a complaint under Article 90 (2) of the Staff Regulations in which he sought the annulment of his classification in Grade A 4 and of the description of his duties, a declaration that his duties were those of an adviser in Grade A 3 and a corresponding adjustment of his financial entitlements. That complaint remained unanswered.

8. By note of 9 January 1981, the Director General for Development informed the applicant that another official in Grade A 3, Mr Grumbach, was to be transferred to Geneva to take over the duties previously assigned to Mr Plug who was thenceforth merely “to cooperate” in carrying out the tasks entrusted to the delegation “under the authority” of Mr Grumbach.

9. As a result of that decision, Mr Plug's accreditation to the international organizations in Geneva was withdrawn upon Mr Grumbach's arrival.

10. On 20 January 1981, the applicant submitted a further complaint under Article 90 (2) of the Staff Regulations in which he requested primarily the reinstatement of his accreditation, which he considered essential even for the accomplishment of the more restricted duties assigned to him and the withdrawal of which was, in his opinion, harmful to his reputation and to his professional standing and, secondly, a detailed description of his duties.

11. Although the Commission acceded to his second request by a note of 18 March 1981 from the head of the delegation in Geneva in which the new duties assigned to him were described in detail, on 23 June 1981 it belatedly adopted a decision rejecting the first request concerning his accreditation. In the meantime, Mr Plug brought this action, his application being received at the Court Registry on 22 June 1981.

(a) Admissibility of the application for annulment of the implied decisions rejecting the applicant's complaints

12. The Commission has raised an objection of inadmissibility regarding Mr Plug's application for annulment of the implied decisions rejecting his complaints of 22 November 1980 and 20 January 1981, inasmuch as they merely confirm and form part of the contested decisions and do not, therefore, constitute separate measures which may be challenged.

13. That objection is well founded. As the Court has pointed out in previous decisions and in particular in its judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner [1980] ECR 1677, every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged.

14. In the present case, the implied decisions rejecting the applicant's complaints merely confirm previous decisions adopted by the Commission; accordingly, Mr Plug's application for their annulment must be dismissed as inadmissible.

(b) Substance

1. First claim

15. The applicant seeks, in the first place, the amendment of his classification and of the description of his duties in the contraa concluded on 22 August 1980, with retroactive effe from the date on which the contract took effect, but without any change in the other provisions of the contraa.

16. In support of his claim, the applicant maintains, in his first submission, that his classification in Grade A4 and the description of him as a principal administrator are in breach of the principle that an official's duties and grading must correspond to the post occupied by him which is embodied in Articles 5 and 7 of the Staff Regulations and is also applicable to temporary servants by virtue of Articles 9 and 10 of the Conditions of Employment of Other Servants of the European Communities (hereinafter referred to as “the Conditions of Employment”). He claims in that regard that after the expiry of the contract of 15 November 1978 he performed the same duties as before for a period of at least four months and that those duties corresponded, in so for as it is possible to tell from the description of the duties and the responsibilities attaching to each basic post adopted by the Commission, to Grade A 3 and to the description of adviser. The applicant claims that the definition of his new duties, contained in the notes of 9 January 1981 and 18 March 1981, cannot alter that situation inasmuch as in reality those notes constitute a unilateral amendment of the contraa which had already been concluded, their sole purpose being to rectify ex post facto the error allegedly made by the Commission.

17. That argument cannot be accepted. The contraa concluded on 22 August 1981 differs substantially from the previous contraa. The new contract contains a series of amendments regarding fundamental terms such as the duration of the contract, which became indefinite, the transfer of the post from budget heading A 3 to budget heading A 5/4 ACP/temporary and, finally, the aaual purpose of the employment relationship inasmuch as the applicant was recruited as a principal administrator in Grade A 4. The applicant must have been aware of the description of duties and responsibilities corresponding to each basic post and could not therefore expect to be entrusted with the same duties as those which he had performed under his previous contract.

18. The fact that, for approximately four months prior to Mr Grumbach's arrival in Geneva, the applicant continued to perform the duties which had been assigned to him under the contract concluded in 1978 and that during that period he therefore carried out duties which were more important than those assigned to him under the contraa concluded in 1980 is not a decisive consideration either. Pursuant to Article 7 (2) of the Staff Regulations, which also applies to temporary servants by virtue of the reference to that provision contained in the first paragraph of Article 10 of the Conditions of Employment, any official may be called upon to occupy temporarily and for a period not exceeding one year, a post in a higher career bracket; he may not refuse such a temporary posting or thereby acquire any entitlement to reclassification. Accordingly, the aforementioned circumstances do not confer upon the applicant any right to be re-graded or to have the description of his duties amended in his existing contract. It is clear, on the other hand, that following the note of 9 January 1981 and the arrival in Geneva of another official in Grade A 3, more restricted duties were assigned to the applicant which corresponded precisely to the grade and to the description contained in the contested contract.

19. The conclusion must therefore be drawn that, in the present case, there has been no breach of the principle that an official's grading must correspond to the post which he occupies.

20. In his second submission concerning this claim, the applicant maintains that in downgrading him by comparison with his classification in the previous contract the Commission acted in breach of its duty of assistance, provided for by Article 24 of the Staff Regulations, and of a number of other unwritten duties, in particular its duty to provide for the welfare of its officials (“Fürsorgepflicht”).

21. That argument cannot be accepted either. The reference to Article 25 of the Staff Regulations is not relevant since that provision is concerned with the defence of officials against the acts of third parties and not against acts emanating from the institution itself (judgment of 25 March 1982 in Case 98/81 Munk [1982] ECR 1169). The Commission's duty to provide for the welfare of its officials reflects, according to the case-law of the Court, the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants (judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner cited above). In the present case, that balance has not been upset by the Commission's decision.

22. The applicant's first claim must therefore be rejected.

2. Second claim

23. Secondly, the applicant seeks annulment of the decision redefining his responsibilities, contained in the note of 9 January 1981 from the Director General for Development, and of the decision withdrawing his accreditation to the international organizations in Geneva.

24. The applicant considers that the decision contained in the aforementioned note assigning new, more restricted duties to him is unlawful inasmuch as it is a decision adversely affecting him and should therefore, in accordance with the combined provisions of Article 11 of the Conditions of Employment and the second paragraph of Article 25 of the Staff Regulations, have stated the grounds on which it was based.

25. That argument is' unfounded. Since the change in the applicant's duties was the result of the conclusion of a new contract in 1980, the Director General's note of 9 January 1981 must be regarded as an internal administrative measure in which the competent authority defined the applicant's responsibilities as principal administrator.

26. The applicant maintains that it was illogical and senseless to withdraw his accreditation to the international organizations inasmuch as he is thereby prevented from carrying out even the more restricted duties at present assigned to him and the measure is therefore purely vexatious in nature and purpose. The decision to withdraw his accreditation is, moreover, unlawful because it does not state the grounds on which it is based.

27. That argument cannot be accepted. In view of the fact that accreditation is granted to officials and other servantsto enable them to perform their duties more effectively, the advantages resulting therefrom attach to the post occupied by the officiali or servant concerned and not to him personally. Thus, it is for the appointing authority, which is vested with discretionary powers in that regard, to determine whether or not accreditation is necessary for the performance of certain duties. If, in that connection, the appointing authority considers that, following a lawful change in the responsibilities of an official or servant, accreditation is no longer necessary, its decision is a direct result of that change and, accordingly, the grounds on which the decision is based need not be stated.

28. It follows that the applicant's second claim must also be rejected.

3. Third claim

29. Thirdly, the applicant claims compensation for damage resulting from the Commission's decisions which are in his view unlawful. Since the legality of those decisions has been upheld, it is unnecessary to consider this claim.

30. The application must therefore be dismissed in its entirety.

Costs

31. Under Article 69 (2) of the Rules of Procedure, thé unsuccessful party' is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities institutions are to bear their own costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application as unfounded.

2 Orders the parties to bear their own costs.