JUDGMENT OF 17. 3. 1983 — CASE 252/81 MACEVIČIUS v PARLIAMENT

In Case 252/81

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges, Advocate General: G. F. Mancini Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the observations made by the parties may be summarized as follows:

I — Facts and procedure

The applicant, a qualified librarian, took up duties with the European Parliament on 1 December 1967 and has taken part in the management and administration of the library since that date. On 1 January 1973 she was classified in Grade A 4 as a Principal Administrator.

In 1972 the Parliament appointed Mr Taylor as Head of the Directorate-General for Research and Documentation, which is responsible for the library, and on 23 September 1974 it authorized him to carry out the reforms which he had planned.

From the outset, the applicant was opposed to the measures for the reorganization of the library recommended by Mr Taylor. In the context of those measures, the Director-General had appointed a Mr Reid, an employee in Grade A 5, to carry out the reorganization. The applicant disputed that appointment by bringing an action before the Court on 31 July 1975 even though the appointment had been revoked in April of that year. The action was dismissed by a judgment of the Court (Second Chamber) of 20 May 1976 (Case 66/75 Macevičius v Parliament [1976] ECR593).

On 24 March 1976 the applicant brought a second action seeking principally the annulment of her periodic report for the period 1973 to 1974. The disputed report, dated 19 March 1975, which according to the applicant contained assessments not consistent with those in earlier reports (that is to say, reports made before Mr Taylor became Director-General), was described by the applicant as constituting “serious ... abuse of powers by a director-general in the performance of his administrative duties”. However, that action too was dismissed by a judgment of the Court (First Chamber) of 12 May 1977 (Case 31/76 Macevičius v Parliament [1977] ECR 883).

Certain structural changes were to be carried out in 1978 and 1979 in the Cataloguing and Library Administration Division of the library of the European Parliament, of which the applicant is in charge, and in the Reference, Information and Documentation Division of which Mr Reid, also a Principal Administrator in Grade A 4, is in charge. Various preparatory documents relating to the budget and the organization of the European Parliament, originating from the Secretary-General and from the Committee on Budgets in particular, suggested a conversion of post for those two heads of section from Grade A 5/4 to Grade A 3.

In a memorandum dated 5 September 1979 addressed to the Secretary-General of the Parliament and relating to the adoption of the 1980 budget, Mr Taylor, Director-General for Research and Documentation, referring to the budgetary limits fixed by Parliament in a resolution dated 10 May 1979, proposed only that the post of Head of the Reference, Information and Documentation Division should be converted to Grade A3 for the budgetary year 1980 and did not mention the Cataloguing and Library Administration Division. The proposal, was accepted and later adopted by the Secretary-General and by the Parliament's Committee on Budgets.

In a letter to the President of the Parliament dated 6 November 1979 and registered on 12 November 1979, the applicant complained that the Cataloguing and Library Administration Division had not been considered with regard to the requests for conversion of posts. According to the applicant, this was an example of a systematic administrative policy pursued by Mr Taylor aimed at upgrading the post of the head of the Reference, Information and Documentation Division to the detriment of the Cataloguing and Library Administration Division.

On 14 July 1980 Vacancy Notice No 2677 was published, advertising a post of head of division (Grade A 3), a regraded post to be included in the detailed list of posts for 1980 for the Directorate of the Reference, Information and Documentation Division. On 11 June 1980 the applicant brought an action seeking principally the annulment of the nomination of Mr Reid alone for promotion to Grade A 3 and, in the alternative, that she and Mr Reid should both be promoted to Grade A 3. However, by an order made on 18 November 1980 the Court (Third Chamber) dismissed the action as inadmissible (Case 141/80 [1980] ECR 3509).

The applicant did not submit an application for the vacancy mentioned above. After examination of the applications received, five in number, the appointing authority appointed Mr Reid as Head of Division in Grade A 3 by a decision of 24 October 1980 published on 25 November 1980. On 20 February 1981 the applicant submitted a complaint against the decision pursuant to Article 90 (2) of the Staff Regulations. Following the implied rejection of that complaint she brought this action on 16 September 1981, which was registered at the Court on the same day.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral proceedings without any preparatory inquiry.

II — Conclusions of the parties

The applicant claimed that the Court should:

“1. Take formal note of the lodging of this application and declare it admissible; 2. Declare it well founded and consequently annul the decision of 24 October 1980, published on 25 November 1980, in so far as it appointed Mr Reid to the sole A 3 post vacant; 3. Alternatively, appoint the applicant to that post; Order the Parliament to pay the costs.”

In its statement of defence, the defendant contended that the Court should:

“Dismiss the application as inadmissible; Alternatively, reject it as not well founded; Rule on costs in accordance with the relevant provisions of law.”

In its rejoinder the defendant added that “as for costs, however,” the Court should “order the applicant to pay them in full.”

Ill — Summary of the submissions and arguments of the parties

A — On the facts

a) The applicant believes that the criticisms which she made of the changes undertaken by Mr Taylor were the reason for the permanent state of tension between herself and Mr Taylor and for her periodic reports being less favourable than before. She maintains that she has been the subject of “various machinations” which, after the dismissal of her three earlier actions, led to the creation of “an artificial but effective barrier to the progress of her career”.

The appointment of Mr Reid was thus the culmination of a process begun several years earlier.

The defendant disputes that interpretation of the facts and considers that, on the contrary, the applicant's systematic opposition — which she invariably attributed to the interests of the service — led to a negative and noncompliant attitude “which resulted in personal disappointments and which had a detrimental effect on her efficiency in the department.”

According to the defendant, the applicant had already had difficulties in her relations with the superiors before the arrival of Mr Taylor, imagining that she was the target of “revenge for having expressed opinions different from those of her superiors”.

The Parliament concludes that the insinuations and accusations directed against Mr Taylor were as ill-founded as those described above.

In her reply the applicant denies having set out the facts in a subjective manner. She admits that she has expressed herself in forceful terms in the past and that there have been comments concerning her conduct at work, but that is due to the fact “that she is personally not wellliked for the reasons which she has given.”

She also emphasizes that it is not correct to maintain that she is still opposed to the reorganization decided upon in 1974. She accepts it as a fact; however, that does not mean that the arguments which she put forward are automatically invalid, and therefore all she has done is to explain her previous position. On the other hand, she believes “that by reason of her opposition at the time she has subsequently been discriminated against”.

Finally, the applicant maintains that Mr Reid was the only applicant for the post advertised in Vacancy Notice No 2677.

In its rejoinder, the defendant disputes the last-mentioned submission, maintaining that there were in fact five applicants for the vacant post.

B — On admissibility

The defendant maintains that the applicant's main and alternative claims are both inadmissible.

First, as regards the main conclusion, namely the claim for annulment of the appointment of Mr Reid “to the sole A 3 post vacant”, the defendant considers that the two grounds put forward by the applicant — that is to say, on the one hand an intellectual one connected with her opposition to the development of such a division and on the other hand the fact that the requirements as to proficiency and qualifications set out in the Vacancy Notice were based on Mr Reid's curriculum vitae — should be rejected.

The first of those two grounds, which is evidence of the applicant's enduring opposition to a reform which was decided upon years ago, cannot be reconciled with the obligation to act solely in the interests of the institution. As for the second, the Parliament denies that the requirements laid down in the Vacancy Notice were based on Mr Reid's curriculum vitae, and considers that in deciding not to apply the applicant continued to show the same attitude of sterile opposition, which is reprehensible from the point of view of both the institution and its departments.

In any case, by not applying for the vacant post, the applicant has precluded herself from bringing an action against the appointment of another official to that post because, on the one hand, that appointment cannot now constitute an act adversely affecting the applicant, and on the other hand, the applicant no longer has an interest in opposing the appointment of a third party.

As for her alternative conclusion, in which the applicant asks the Court to appoint her to the disputed post, the defendant regards it as “patently inadmissible”, relying first on the argument set out above and secondly on the Order of the Court of 18 November 1980 in Case 141/80 (cited above).

The applicant's first comment is that only the Court is competent to decide whether she has an interest in bringing an action.

Furthermore, she maintains that the disputed measure does adversely affect her inasmuch as it allows a third party to benefit from advantages which she does not enjoy, and that it may be considered to be tainted by illegality or nullity; from that point of view she has an argument for the admissibility of her application.

The applicant then challenges the Parliament's argument that her refusal to apply for the vacancy in question was evidence of her continuing opposition to the changes decided upon by the Parliament in 1974. She considers, on the contrary, that if she had done so when she did not possess the required experience, she would have been criticized for such “presumption”, and that presumption would, moreover, have been interpreted “as outright intellectual dishonesty”.

The applicant is of the view that even supposing she had brought an action after having submitted an application for the vacant post, the European Parliament would none the less have answered her to the effect that “the interests of the service being paramount in decisions on appointments, it was obvious that, given the opposition shown earlier to the change of which the disputed measure is merely a consequence, the applicant could evidently not carry out the relevant duties”.

Finally, the applicant is of the opinion that the attitude of the defendant towards her is, at the very least, lacking in balance. The Parliament maintains on the one hand that the applicant's attitude is sterile and groundless — the result of her difficult character and the fact that she is full of her own merits — while on the other hand, arguing for the inadmissibility of the action, the Parliament maintains that by reason of both her training and her experience the applicant could have aspired to the vacant post in question.

The defendant adds that as far as admissibility is concerned officials must abide by the rules. Since officials have a duty to cooperate with regard to the procedure for filling vacant posts, the applicant cannot complain that her interests were not protected by the appointing authority when she had deprived it of the opportunity of doing so within the framework of the proper procedure.

C — On the merits

The applicant relies on three submissions.

(a) First submission: “Breach of the trust which an official may legitimately have in the appointing authority as well as of the general principles of equity”

The applicant points out that the Staff Regulations, and in particular Articles 11 and 21 thereof, require an official, in carrying out his duties, to bear in mind solely the interests of the Communities and to assist and advise his superiors, giving them his opinion in writing if necessary.

Those principles together should “be placed in parallel with the confidence which an official is entitled to have in his superiors.”

In that respect, it would be contrary to equity for an official fulfilling a duty in the interests of the service by explaining, in writing if necessary, the reasons for which he is opposed to carrying out an instruction in the interests of the service to be penalized for his attitude by having the progress of his career blocked.

Yet according to the applicant it was as a result of the written communications in which she had expressed, in her professional capacity, opposition to the reforms planned that she had been “on the one hand the subject of unfavourable periodic reports, and on the other hand deprived of promotion on the basis of the Vacancy Notice”, whereas the applicant might have expected that her courage would, on the contrary, increase the confidence which one could have in her regarding the way in which she carried out her duties.

The defendant entirely agrees with the applicant's argument that “an official who expressed an opinion to his hierarchical superior relating to instructions which appear to him to be irregular should not be penalized for doing so.” However, it disputes the conclusion drawn by the applicant that she has been penalized for expressing her opinion, and refers the Court to the description of the facts and antecedents of the case. In this context there is no room for discussion of the controversial principle of the legitimate trust of officials in the appointing authority.

As far as the alleged breach of general principles of equity is concerned, the defendant considers itself unable to reply to a submission upon which the applicant has declined to elaborate, and therefore proposes to dismiss it out of hand.

The applicant persists in maintaining that it was only from the time that she first showed her opposition to Mr Taylor's project for reorganizing the library that the mention “unsatisfactory” had appeared in her periodic reports regarding her conduct in the department.

As for the general principle of equity which is implied in that of legitimate trust, it presupposes that “the authority in which the official is to have trust will not react unfairly with regard to the person concerned.”

(b) Second submission: “Infringement of Article 5 (3) of the Staff Regulations of Officials”

According to the applicant, the principle stated in Article 5 (3) of the Staff Regulations, namely that identical conditions of recruitment and service career shall apply to all officials belonging to the same category or the same service, has been blantantly ignored as far as she is concerned.

She points out that she has had no promotion since 1 January 1973, whereas Mr Reid's career over the same period “could well be described as ‘meteoric’ ”. According to her, it would be difficult not to see a “flagrant difference” between the stagnation of her career and the rapid development of that of Mr Reid, “which could only derive from the facts already stated: on the one hand the applicant's courageous stance and on the other hand promotion due to the success of the ideas for reorganizing the division directed by Mr Taylor”.

The defendant considers that “the applicant's complaints are entirely groundless” because she was not the victim of any discrimination, especially as what she refers to as her “courageous attitude” — which is in fact an obstinate refusal to recognize first the desirability and subsequently the reality of a change — “has done nothing but create needless problems for her superiors”.

Furthermore, the Parliament is of the view that the sole effect of Article 5 (3) is to stipulate equal treatment for all officials from their entry into the service of the Communities, and it cannot therefore be interpreted as meaning that officials of the same grade should have identical progress in their careers. Appointments and promotions should be made only as required by the interests of the service. It follows from the description of the facts that the administration of the Parliament acted exclusively in the interest of the service as it appeared from the circumstances and in so doing it was merely complying with its obligations under the Staff Regulations, and therefore the second submission should also be rejected.

The applicant remarks that on the one hand the Parliament does not deny that there are differences between the careers of the two officials in question without giving any explanation for the difference, while on the other hand it has retreated behind the concept of the interests of the service. Such an attitude demonstrates that the applicant was correct in alleging, as far as the admissibility of the action is concerned, that even had she applied for the vacancy in question, she would have been told “that the interests of the service required that Mr Reid should be appointed in her stead”.

Furthermore, the simple statement by the Parliament that Article 5 (3) of the Staff Regulations merely stipulates equal treatment for all officials from their entry into the service of the Communities cannot be regarded as constituting a valid argument for dismissing the applicant's proposition, especially since the Parliament did not provide any other explanation for the disparity between the career of Mr Reid and that of the applicant.

(c) Third submission: “Infringement of Article 7 (1) of the Staff Regulations of Officials and of Article 45 (1) thereof”

According to the applicant, it appears from the preparatory documents for the requests submitted to the budget authority that the interests of the service required that the Library Division, more properly under the charge of the applicant, should be managed by an official of Grade A 3. It is clear that that requirement does not cease to exist “merely because the only A 3 post which appears ultimately to have been requested from the budget authority is to be allocated to the Reference, Documentation and Information Division”.

It is true that the appointing authority is the sole judge of the interests of the service in the allocation of posts, but it is necessary for it to take a reasoned decision and while the Court is not judge of the interests of the service, it is the judge “of the manner in which such a decision was taken”. In the circumstances the applicant, relying in addition on the differences between the careers of Mr Reid and herself, maintains that the conversion of post from A4 to A3 which is in dispute in the present action is contrary to the rules contained in the Staff Regulations. On this point the applicant refers to the judgment given by the Court on 28 October 1980 (Case 2/80 Dautzenberg v Court of Justice. [1980] ECR 3107). According to that judgment, if it is not possible to provide for several posts at the same time because the budget authority did not see fit to grant the number of posts requested, the competent authority is entitled to take into consideration the merits and qualifications of the officials who, after the conversion of the posts, are capable of assuming the relevant duties. That would entail a comparison and an assessment of the needs of the various departments or posts in question. The Parliament has not fulfilled those obligations in their entirety and has thereby caused damage to the applicant.

According to the Parliament, the lessons of the Dautzenberg judgment are not applicable to the present case. In that case the administration obtained only one of the three A 3 posts which it had requested, but the Committee on Budgets left the choice of the remaining post to the appointing authority. In this case, however, the Commitee on Budgets made it clearly understood that it was not disposed to accept the creation of two A 3 posts, while at the same time insisting on the need for reinforcement in the documentation department. It was in the light of that that the Director-General had put forward the fully reasoned proposal to develop the documentation department. The defendant points out that, contrary to the position in other Community institutions, the budget authority of the Parliament constitutes a part of the appointing authority for the General Secretariat.

Consequently, not only had the General Secretariat acted in full conformity with the lessons arising from the Dautzenberg case, but furthermore, even if it had been in the position of the appointing authority in the Dautzenberg case, the administration of the Parliament could not have taken any decision other than the one at issue now. Therefore, the third submission should also be rejected.

The applicant first remarks that the Dautzenberg judgment had not yet been given at the time when the proposals to the budget authority were being prepared; it would therefore appear difficult for the Parliament to have observed the lessons contained therein in advance.

According to the applicant, the position as set out by the defendant indicates that the Director-General, Mr Taylor, changed “his view of the interests of the service during the course of planning, restricting his consideration to the division to which Mr Reid belonged because the Committee on Budgets had already insisted on the need for strengthening the documentation department”. Consequently the allocation of the re-grading of the A 4 post to A 3 to Mr Reid's department was not carried out in due form, and it is that absence of regularity which the Court may condemn without its being necessary to rule on the concept of the interests of the service, which the Court is not competent to do.

Finally, the applicant repeats that the problem raised by the present case is exactly the same as that of the Dautzenberg case. The Parliament confined itself to the assumption that the change in the Director-General's proposal had taken the interests of the service into account, for the simple reason that it had been taken by a Director-General. In the Dautzenberg judgment, however, it was stated that the Court “must be able to ascertain that the test of the interests of the service has been applied”. Nowhere in the various documents is there any mention of the test of the interests of the service having been applied in terms which could be the subject of condemnation by the Court. In the circumstances, reliance on the presumption of the application of a principle or on a stylized formula amounts to deliberate removal of the reasons for a decision from the Court's purview; therefore the Parliament's argument should be rejected.

The defendant repeats that the Parliament's administration has merely complied with the directives drawn up by the Committee on Budgets, which is an integral part of the appointing authority. Since those directives were designed to enable the Parliament to put into effect the aims of the Treaty under the best conditions, administrative action complying with those directives was merely serving the interests of the service as they had been defined. The lessons deriving from the Dautzenberg judgment are not, therefore, applicable in the present case.

IV — Oral procedure

The applicant, represented by J. Saels of the Brussels Bar, and the European Parliament, represented by Mr Peter, acting as Agent, and on whose behalf A. Bonn of the Luxembourg Bar appeared, presented oral argument at the hearing on 20 January 1983.

The Advocate General delivered his Opinion at the hearing on 3 March 1983.

Decision

1. By an application lodged at the Court Registry on 16 September 1981 Mrs Margherita Hebrant, née Macevičius, an official in Grade A 4 of the European Parliament, brought an action for the annulment of the decision of the Parliament of 24 October 1980 by which Mr Reid was appointed to the vacant A 3 post in the library and, in the alternative, for the appointment of the applicant to that post.

2. The applicant is in charge of the Cataloguing and Library Administration Division of the library of the European Parliament which also includes the Reference, Information and Documentation Division under the charge of Mr Reid. When alterations to the structure of those two departments were being planned for 1978 and 1979, the Secretary-General of the European Parliament requested conversion of posts from Grade A 5/4 to Grade A 3 for the two heads of division mentioned above, in preparatory documents relating to the budget and organization of the Parliament.

3. However, referring to the budgetary limits fixed by the European Parliament in a resolution of 10 May 1979, the Director-General for Research and Documentation, who is responsible for the library, finally proposed that only the post of Head of the Reference, Information and Documentation Division be converted into a Grade A 3 post.

4. The applicant submitted a complaint against that proposal and brought an action which led to an Order of the Court, made on 18 November 1980, dismissing her action as inadmissible (Case 141/80 [1980] ECR 3509).

5. In the meantime, Vacancy Notice No 2677 advertising the abovementioned post was published on 14 July 1980. The applicant did not apply for the post. Having examined the five applications which it received, the appointing authority by decision of 24 October 1980 appointed Mr Reid Head of Division in Grade A 3. The present action is directed against that decision. In its defence, the Parliament raised an objection of inadmissibility directed against both the main claim and the alternative claim seeking the appointment of the applicant to the post in dispute.

On the admissibility of the application for annulment

6. In essence, the Parliament submits that, not having applied for the vacant post, the applicant could no longer challenge the appointment of Mr Reid. Since she did not apply for the post, it maintains, the appointment does not constitute a measure adversely affecting the applicant and she has no interest at stake in opposing the appointment of a third party.

7. The applicant objects that since the contested decision allows a third party to obtain advantages which she does not enjoy she has an interest at stake and the disputed measure does affect her adversely. The measure is all the more detrimental to her because it was tainted by procedural irregularities. In essence these were that Mr Reid was the only candidate for the A 3 post in dispute, and that the Vacancy Notice contained requirements based on Mr Reid's curriculum vitae to such an extent that she did not have the required qualifications, a fact which, moreover, justified her failure to submit an application. She further maintains that even had she brought an action after having submitted an application, the Parliament would have retreated behind the notion of the interests of the service in order to reject it.

8. It is appropriate to recall in the first place that in the Order of 18 November 1980 the President of the Third Chamber declared that Vacancy Notice No 2677 could not now be the subject of an action because it had not been the subject of a previous complaint on the part of the applicant. Consequently, the applicant's main argument, by which she maintains that the requirements imposed by that notice deprived her of the appointment to the disputed Grade A 3 post, is no longer open to her.

9. In addition it is established that from the date of the publication of the Vacancy Notice the appointment procedure followed its normal course, that five candidates applied and that Mr Reid fulfilled the conditions required by the Vacancy Notice.

10. Since the applicant voluntarily decided not to apply for the post, and thus refused to take part in the appointment procedure, she cannot now challenge the appointment of a third party, and consequently her application for the annulment of Mr Reid's appointment is inadmissible.

On the admissibility of the alternative claim

11. Since the principal claim is inadmissible, the alternative claim seeking the appointment of the applicant to the disputed A 3 post must likewise be inadmissible because it is apparent that that post is properly occupied by Mr Reid and that his appointment can no longer be challenged by the applicant.

12. Consequently, the action must be dismissed as inadmissible.

Costs

13. Pursuant to Article 70 of the Rules of Procedure costs incurred by the institutions in actions brought by servants of the Communities are to be borne by the institutions, without prejudice to the provisions of the second paragraph of Article 69 (3) relating to costs which the Court considers that a party has unreasonably or vexatiously caused the opposite party to incur. Given the patently inadmissible nature of the action, it is appropriate to apply the second paragraph of Article 69 (3) of the Rules of Procedure and to order the applicant to pay the costs.

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

1 Dismisses the application as inadmissible.

2 Orders the applicant to pay the costs in their entirety.