Report for the Hearing delivered in Case 167/86

I — Facts and procedure

By a decision of the Court of Auditors of 28 October 1981 the applicant, who had been successful in Competition CC/D/2/81, was employed as a probationary official with effect from 1 November 1981.

The applicant was established in his post by a decision of 17 May 1982 which took effect from 1 May 1982. The decision appointed the applicant to be a driver ‘for a member of the Court of Auditors’ in Grade D 3, Step 1.

While so employed the applicant received an allowance designated ‘flat-rate overtime remuneration’. In his capacity as a driver the applicant was assigned to the office of the Member of the Court of Auditors for whom he performed his duties.

By Decision No 85-12 of 16 September 1985 ‘assigning drivers to the President's department’ the Court of Auditors, while not changing the duties of drivers, altered their posting by assigning all drivers permanently to the President's department of the Court of Auditors.

By Decision No 001021 of 16 September 1985 the applicant's posting, like that of the other drivers, was altered pursuant to the aforementioned Decision No 85-12 of 16 September 1985 and the applicant was assigned to the President's department with effect from 16 September 1985.

By Decision No 001047 of 18 September 1985, which took effect from 16 September 1985. the applicant was placed at the disposal of the office of a Member of the Court of Auditors as a driver. Article 2 of the decision provided that while so employed the applicant ‘shall receive the flat-rate overtime remuneration’ and thus there was no change in the payment of that allowance to the applicant.

On 25 November 1985 the applicant and seven other drivers of the Court of Auditors sent a letter to the President of the Court of Auditors in which they stated that they could not accept the decision assigning drivers to the President's department unless the stability of their employment as drivers assigned to a Member was assured. The defendant acknowledged receipt of the letter in a letter dated 6 December 1985 to each of the signatories requesting them, if they saw fit, to submit a letter individually through the official channels.

On 13 December 1985 the applicant wrote to the President of the Court of Auditors stating that he had been recruited as a driver assigned to a Member after passing a specific competition. He observed that the decision to alter his posting represented a restriction of the terms of the competition and would have serious financial consequences for him. The decisions were thus inconsistent with the notice of competition. The applicant requested the President to give him an assurance of the stability of his employment as a driver assigned to a Member. The applicant ended the letter as follows: ‘the present request is based on the provisions of Article 90 (1) of the Staff Regulations applicable to Officials and Other Servants of the European Communities’.

On 23 January 1986 the applicant was summoned to a personal meeting (as were all the officials affected by the decisions of 16 September 1985) with, inter alia, the secretary of the Court of Auditors, who explained in detail on behalf of the defendant the reasons for the new posting. On that occasion the applicant was expressly asked to give more particulars of his arguments and to disclose the grounds in law which might justify an action against the defendant.

By application lodged at the Court Registry on 10 July 1986 the applicant brought the present action. The action was also brought in the name of Mr Gambini-Mancinelli, likewise an official at the Court of Auditors. However, by a letter dated 14 July 1986 Mr Gambini-Mancinelli requested the Court to treat as null and void any application received in his name; by order of 26 November 1986 the Court (Second Chamber) therefore removed his name as an applicant in the present case.

On 12 August 1986 the Court of Auditors applied to the Court under Article 91 of the Rules of Procedure for a decision on an objection of inadmissibility. It requested the Court to rule on the application as a preliminary issue.

The applicant's observations on the objection of inadmissibility were lodged at the Court Registry on 21 October 1986.

By decision of 26 November 1986 the Court (Second Chamber) reserved its decision on the objection of inadmissibility for the final judgment.

By letter lodged at the Court Registry on 3 April 1987 the applicant waived his right to lodge a reply.

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

II — Conclusions of the parties

The applicant claims that the Court should:

a) Annul

i) Decision No 85-12 adopted on 16 September 1985 by the Court of Auditors assigning drivers to the President's department,

ii) the decision of the President of the Court of Auditors of 16 September 1985, made pursuant to Decision No. 85-12 of the Court of Auditors of 16 September 1985, assigning Marc Rousseau to the President's department, and

iii) in so far as is necessary, the implied decision of the appointing authority rejecting the complaint lodged by the applicant on 13 December 1985 under Article 90 (2) of the Staff Regulations;

b) Order the defendant to pay the costs, pursuant to Article 69 (2) of the Rules of Procedure, including the expenses necessarily incurred for the purpose of the proceedings, in particular the costs of arranging for an address for service, travel and subsistence expenses and lawyer's fees pursuant to Article 73 (b) of those rules.

The Court of Auditors contends that the Court should:

a) Dismiss the action as inadmissible and in any event unfounded;

b) Order the applicant to pay the entire costs including the costs of the defendant.

III — Submissions and arguments of the parties

A — Admissibility

The Court of Auditors puts forward two arguments on admissibility. In the first place, the applicant has no interest in bringing proceedings. Furthermore, he has failed to observe the preliminary procedure laid down in Article 90 of the Staff Regulations.

With regard to the lack of an interest in bringing proceedings, the Court of Auditors observes that only measures which adversely and directly affect an official's rights under the Staff Regulations may be the subjectmatter of a complaint or an action before the Court. In the present case the posting of all drivers has been altered but their duties have remained unchanged. An institution has a wide discretion in posting staff, provided that staff are assigned in the interests of the service and in conformity with the principle of assignment to an equivalent post. The applicant's personal interests are in no way affected and therefore he is not adversely affected. Since the action is based on a simple fear of a future contingency that of losing the allowance at issue, it is not a vested and present interest, and in that respect the Court of Auditors refers to the judgment of the Court of 21 January 1987 in Case 204/85 (Stroghiliv Court of Auditors [1987] ECR 389).

The applicant points out that contrary to his previous position he is no longer entitled to the allowance at issue and will be able to receive it only while he is actually placed at the disposal of a Member. In making the payment of the allowance subject to fulfilment of a condition the contested decision adversely affects the applicant's rights.

With regard to the failure to comply with the preliminary procedure laid down in Article 90 of the Staff Regulations the Court of Auditors contends that Article 91 of the Staff Regulations provides that an action is admissible only if the procedure provided for in Article 90 of the Staff Regulations has first been followed. An official cannot immediately lodge a complaint under the complaints procedure referred to in Article 90 (2) but must await a decision which adversely affects him or bring about such a decision by way of Article 90 (1). In the present case the applicant's letter of 13 December 1985 to the President of the Court of Auditors was described as a request within the meaning of Article 90 (1). In consequence the Court of Auditors has not received a complaint within the meaning of Article 90 (2) of the Staff Regulations.

The applicant observes that in his letter of 13 December 1985 he stated very clearly his complaints with regard to the financial arrangements resulting from his new assignment. The Court of Auditors ought to have treated the request under Article 90 (1) as a complaint within the meaning of Article 90 (2). In that respect the applicant refers to the judgment of the Court of 7 May 1986 in Case 191/84 (Barcella and Others v Commission [1986] ECR 1541).

B — Substance

The applicant observes that the purpose of the decision of 16 September 1985 assigning him to the President's department was not to fill a vacant post within the meaning of Article 4 of the Staff Regulations. Nor was the change in his assignment a transfer within the meaning of Article 7 of the Staff Regulations since there was no change of post. The decision therefore cannot have the effect of altering the applicant's remuneration, as would be the case if he ceased to be assigned to the office of a Member and thus lost the flat-rate overtime remuneration.

The object of the decision of the Court of Auditors of 16 September 1985 was to stop the allowance at issue should the driver's assignment to the office of a Member be terminated against his will. The application of that general decision by the decision of the President of the Court of Auditors of 16 September 1985 entails an alteration in the applicant's financial rights arising from his appointment to the post of driver in the office of a Member. The two decisions at issue infringe the general principle that regulations should not be retroactive and thus the general principle of vested rights.

The Court of Auditors observes that an institution has a wide discretion in the assignment of staff, provided that staff are assigned in the interests of the service and in conformity with the principle of assignment to an equivalent post.

In the present case the decisions at issue were adopted not only in the interests of the service but also in the interests of the officials concerned. The contested decisions protect officials assigned to the offices of Members inasmuch as if a Member requested that a driver be replaced he could be assigned to a post which ensured that his career progressed normally even though he terminated his duties with the Member. Since Article 3 of Annex VI to the Staff Regulations derogates from the normal rules relating to remuneration on proof of hours worked, it is consistent with the Staff Regulations that officials who cease to work for a Member should cease to receive the flat-rate allowance at issue.

Finally, with regard to the alleged infringement of the principle of vested rights, there is no such principle in the law relating to the European Civil Service.

T. F. O'Higgins

Judge-Rapporteur

1 Language of the Cue: French.