JUDGMENT OF 15. 12. 1966 — CASE 28/65 FONZI v COMMISSION

In Case 28/65

THE COURT (First Chamber) composed of: A. Trabucchi, President of Chamber, L. Delvaux (Rapporteur) and R. Lecourt, Judges, Advocate-General: K. Roemer Registrar: H. J. Eversen, Deputy Registrar

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility

B — The substance of the case

1. Lack of competence, failure to state reasons, infringement of the Treaty and of the Staff Regulations of officials

2. Misuse of powers

3. The request for payment of the daily subsistence allowance for officials on mission, and the application for damages

IV — Procedure

Grounds of judgment

I — Admissibility

A — Applications for annulment

B — Application for payment of the daily subsistence allowance for officials on mission

C — Claims that the defendant be ordered to pay 600000 francs by way of damages

II — The application on a procedural issue of 15 January 1966

Ill — Costs

I —. Facts

II —. Conclusions of the parties

A —. the applicant claims in his application that the Court should:

B —. The defendant contends in an objection of inadmissibility that the Court of Justice should:

C —. In his observations on the objection of inadmissibility the applicant claims that the Court should:

D —. In its statement of defence the defendant contends that the Court should:

E —. In his reply the applicant:

F —. In its application on a procedural issue of 15 January 1966 the defendant claims that the Court should:

G —. In his observations on the preliminary objection the applicant claims that the Court should:

H —. In its rejoinder the defendant contends that the Court should:

III —. Submissions and arguments of the parties

A —. Admissibility

1. In calculating the extension of the time-limits on account of distance which must be taken into account is not, he says, the country in which the applicant happens to be but the country where the advocate assisting him is resident and carries on his business. This is proved by the compulsory requirement that an official be assisted by an advocate before the Court (Rules of Procedure, Article 58), the fact that the pleadings are signed by the advocate (ibid, Article 37) and the right of the parties to be assisted by an advocate resident in a country other than that in which they habitually reside.

2. Moreover, in view of the fact that the applicant was kept in the post under the Staff Regulations to which he had been appointed, he must be considered as still resident at Ispra and merely on temporary mission to Brussels. In support of this the applicant produces three of the administration's decisions, dated respectively 30 October 1964, 12 November 1964 and 10 March 1965 (Schedules 1, 2 and 3 of the reply).

B —. The substance of the case

1. Lack of competence, failure to state reasons, infringement of the Treaty and of the Staff Regulations of officials

(a). The applicant makes an analysis of the powers and duties attached to his official post at Ispra on the one hand, and of the duties assigned to him in the purchasing department by the disputed decision on the other hand. He concludes that the duties assigned to him in Brussels by the disputed decision are fundamentally different from those of the official post in which the defendant claims he was kept. He adds that the definition of duties for a scientific officer in Grade A 5, as set out in Circular 9/63 (Schedule 4 to the reply) is Head of a specialized section or of a (scientific) group or Assistant to a scientific officer or principal technician or to a head of (scientific) division. An examination of internal memorandum No 15 of 17 April 1964 on the organization of the purchasing department in the Directorate-General of Personnel and Administration (Schedule 5 to the reply) shows, according to the applicant, that the duties assigned by the disputed decision bear no resemblance to those of the basic post to which his official position corresponds.

(b). The applicant criticizes the defendant's argument that the duties carried out by the applicant in Brussels correspond to his rank, qualifications and training. This argument, he says, confuses the duties attaching to each permanent post with actual possession of the qualifications required to perform those duties. Paragraphs (1) and (4) of Article 5 of the Staff Regulations mean that it is unlawful to assign the applicant, that is, to impose on him whilst keeping him in the same permanent post, duties which are new and different from those normally attached to his permanent post. In this respect he refers to the judgment of the Court of 17 December 1964 in Boursin v High Authority (para. 4, summary, [1964] E.C.R. 691 & 692).

(c). The applicant remarks that the defendant claims, while maintaining that it is only a question of different ways of performing the same duties, that it has the power to alter at will the powers and duties attaching to a permanent post.

(d). The applicant explains that according to Article 7 (1) of the Regulations, the appointing authority shall … assign each official by appointment or transfer to a post in his category or service which corresponds to his grade.

(e). The applicant alleges that the duties assigned to him in Brussels do not correspond to his rank, scientific ability or experience. The contested decision, by assigning an official from the scientific and technical services to purely administrative duties, while continuing to draw on the research and investment budget for his post, violated Title VIII and Annex I to the Regulations. The applicant recalls that the assignment was criticized by the Audit Board (See above, paragraph (c) and Schedule 6 to the reply).

(f). The applicant claims that no reasons are given for the contested decision which therefore infringes the first paragraph of Article 25 of the Staff Regulations. He says that the judgment of the Court in the case of Huber of 1 July 1964, referred to by the defendant, is not relevant to this case.

(g). The applicant claims that he was assigned to new duties in Brussels as from 28 January 1965 purely by a note from the Director-General for Administration and Personnel, and without the least mention of a Commission decision (Schedule 16 to the reply).

(h). After summarizing his arguments ((a) to (g)) the applicant points out that the arguments put forward against the transfer decision of 7 October 1964 apply equally to the decision of 3 February 1965 rejecting the appeal through official channels against the abovementioned decision.

2. Misuse of powers

(a). He claims that the two grounds for the contested decision given by the defendant in its statement of defence are not sufficient to justify the measure to which he objects.

(b). The applicant observes that developments in the activities of CETIS are not sufficient ground for his removal from Ispra. He points put, in particular, that two scientific posts were declared vacant at the time at Ispra and that he possessed the required qualifications for them (Schedules 17 and 18 to the reply).

(c). The applicant claims that after his assignment under the contested decision to the purchasing department at Brussels to do work performed by an official in Grade B 3, he was then appointed, though without any formal measure, to replace Mr Viellard, an official in Grade A 5, deputy to the head of the purchasing department Mr Asbeck-Brusse, so that Mr Viellard could be made (without the issue of any vacancy notice or the holding of a competition) secretary to Euratom's advisory committee for purchasing and contracts. In support of this claim he quotes the evidence of the said Mr Asbeck-Brusse, and the documents produced in Schedules 5, 16, 20 and 21 to the reply.

(d). The applicant replies to the defendant's allegation that he had himself asked to leave Ispra. He says that this refers to the application which he made for one of the posts advertised in Vacancy Notice 69/64 and that this entailed scientific work in the nuclear sector at Frascatti. He explains that his wish to leave Ispra was due to the disagreement with Mr Gazzano and other officials at Ispra which was' the subject of Joined Cases 27 and 30/64.

(e). The applicant replies to the allegations of deliberate distortion and bad faith made against him in the defendant's observations with regard to the application on a procedural issue in Case 28/65 R, by producing (Schedule 23 to the reply) a photocopy of the draft minutes for the 249th session of the Commission held in Brussels on 24 June 1964, which he states he obtained through normal departmental channels.

(f). The applicant concludes by saying that the true motives for the contested decision are the following:

As to (a). the defendant observes that it was in the interests of the service not only to recall the applicant from CETIS but also to assign him to the purchasing department.

As to (b). The defendant replies that the first vacant post went to Mr Farese, an official granted leave on personal grounds and thus to be given priority according to the Regulations, and that the second post went to Mr Debroux on 9 September 1963, that is, before the date of the applicant's departure from Ispra.

As to (c). The defendant replies that the need to appoint to the purchasing department an official of the same standing and with the same training as that of the applicant became apparent, even before the contested decision was adopted, as a result of the survey conducted by Interburo.

As to (d). The defendant recalls that the applicant's accusation that Mr Gazzano and Miss Pozzi gave false information in their applications for the post was rejected by the Court in its judgment of 8 July 1965 (Rec. 1965, p. 639). It adds that it places the applications in question at the disposal of the Court.

As to (e). The defendant observes that the text in question does not refer to the contested decision but to other, earlier decisions. It recalls that on 22 March 1966 it submitted to the Judge-Rapporteur the record of the Commission's resolutions and that this showed that the document produced by it earlier corresponded to the official text of the minutes of the Commission's meeting of 24 June 1964.

As to (f). The defendant observes:

3. The request for payment of the daily subsistence allowance for officials on mission, and the application for damages

IV —. Procedure

I —. Admissibility

A —. Applications for annulment

B —. Application for payment of the daily subsistence allowance for officials on mission

C —. Claims that the defendant be ordered to pay 600000 francs by way of damages

II —. The application on a procedural issue of 15 January 1966

Ill —. Costs

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Article 152 of the Treaty establishing the EAEC; Having regard to the Protocol on the Statute of the Court of Justice of the EAEC; Having regard to the Staff Regulations of Officials of the EAEC and, in particular, Articles 90 and 91 thereof; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

1 Dismisses Application 28/65 as inadmissible;

2 Orders the removal from the file of the case of the document appearing as Schedule 22 to the reply;

3 Orders each party to pay its own costs, both in the main action and in the interlocutory proceedings.