JUDGMENT OF 6. 5. 1969 — CASE 21/68 HUYBRECHTS v COMMISSION
In Case 21/68
THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner, and R. Monaco (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure
II — Conclusions of the parties
A — In the first place:
B — Secondarily:
C — In any event:
III — Submissions and arguments of the parties
Admissibility
The substance of the case
A — The principal conclusions in the application
1. Failure to observe the principle of correspondence between grade and post
2. Detraction from post
B — The subsidiary pleas
1. Infringement of Article 45(1) of the Staff Regulations
2. Misuse of powers
3. Absence of a statement of reasons
Grounds of judgment
Admissibility
The substance of the case
Costs
I —. Facts and procedure
(a). Document SEC (68) 444 of 7 February 1968 entitled Re-organization — Re-allocation of A 3's, and
(b). The detailed list of posts for Directorate-General VIII — B before and after the re-organization.
II —. Conclusions of the parties
A —. In the first place:
1. Annul the contested decisions, namely:
2. In exercise of its unlimited jurisdiction, hold that:
B —. Secondarily:
1. Annul the contested decisions, namely:
2. In the exercise of its unlimited jurisdiction, rule, or at least declare, that the applicant is or must be promoted to Grade A 3, at the step in that grade corresponding to the one currently occupied by him in Grade A 4, and appointed Head of the Development Studies Division — Directorate B — Directorate-General VIII — Brussels (Vacancy Notice No COM/40);
C —. In any event:
1. Grant the requests contained in the conclusions set out in his application;
2. Secondarily, and before proceeding further:
1. Dismiss both the main application and the subsidiary one as being unfounded;
2. Order the applicant to pay the costs of the proceedings.
III —. Submissions and arguments of the parties
A —. The principal conclusions in the application
1. Failure to observe the principle of correspondence between grade and post
2. Detraction from post
B —. The subsidiary pleas
1. Infringement of Article 45(1) of the Staff Regulations
2. Misuse of powers
(a). As tar as the applicant s qualifications and general merits are concerned (periodic report, qualifications, linguistic proficiency, length of service in the post in question), he possessed the complete range of major qualities required for his duties and for an appointment to the post which has undergone no change.
(b). The defendant disclaims all knowledge of the promise of promotion made to Mr Frisch, but does not expressly deny the applicant's allegations. In deciding whether such a promise did or did not influence the decision selecting a candidate, it should be recalled that Mr Rochereau is a member of the Commission and one of the originators of the proposed appointment to the post in question, and also collaborated in making the report to the Commission on the suitability of each applicant to occupy the vacant post.
(c). It is also common knowledge that the appointment of Mr Frisch was decided well in advance of the commencement of the recruitment procedure. Mr Frisch was in fact accepted as head of the division in question in a confidential document for limited circulation entitled Re-organization — Re-allocation of A 3 posts (Doc. SEC (68) 444) dated 7 February 1968, that is, a month before publication of the new detailed list of posts and over four months before publication of the vacancy notice.
(d). The last factor to be taken into consideration is the haste with which the defendant accomplished the appointment of Mr Frisch (17 July 1968) even before relying to the applicant's complaint through official channels, made on 24 June 1968, in spite of the fact that it had acknowledged the view expressed on 4 July 1968 by the Staff Committee on the incompatibility between the intended publication of vacant posts and the opportunity given to officials of appealing against the appointment communicated to them, since some of the vacant posts might suit officials unhappy with their appointments. In a note dated 19 July 1968, the Central Information Committee (Comité Centrale Informations) actually states that the administration has acknowledged that this argument is justified (Schedule 14 to the application).
(a). The applicant's claim that from the point of view of his length of service, merits and qualifications he is the person best qualified for the post in question is no more than a subjective assessment. The Commission will not enter into a discussion as to the respective qualifications of the two applicants. However, it has produced in Court the periodic reports on Mr Frisch.
(b). As to the promise supposedly made to Mr Frisch it can only repeat that, even if this were proved, it could not affect the decision to be taken, which only the Commission was competent to take.
(c). As to the wholly confidential document No SEC (68) 444 designating Mr Frisch as Head of Division VIII — B 2, this was a working document used by chefs de cabinet to study the various steps to be taken in creating a single administration within the time-limits set by the Treaty of 8 April 1965. For this purpose the Directors-General had been asked to submit proposals and suggestions concerning the re-structuring of departments and appointments of officials. The content of this document represents no more than working hypotheses, in many places very tentative due to the large number of unknown factors in the problems involved. At the time of this document, the die was certainly not cast: the Commission still did not know the number and the grades of the posts which the budgetary authorities would be able to grant it. In fact it was not until 29 February 1968 that the Council drew up the draft detailed list of posts, finally adopted on 25 March 1968, and it was not until after that date that the Commission was able to decide its preference in the matter of re-organization. In the circumstances it is clear that the proposals of the Directors-General in that document were in no way binding on the Commission, which made its decision in accordance with the provisions of the Staff Regulations.
(d). Lastly, as regards the haste with which the Commission decided to appoint Mr Frisch, one cannot conclude from the fact that the administration acknowledged the justification of the point made by the Staff Committee at its meeting on 4 July 1968, that the Commission for its part admitted that publication of the vacancy notices had been made prematurely. The note from the Central Information Committee of 19 July 1963 refers to the administration and not to the Commission, which did not share the views on this point of the Directorate-General of Administration. The Staff Committee was in fact well aware of this, since it adds, in that very note: The results of our request will be followed very closely. It should also be noted that on 17 July 1968, the date of Mr Frisch's appointment the Commission made appointments of seven other heads of division. Accordingly the applicant cannot maintain that the Commission followed an abnormal procedure with regard to him.
3. Absence of a statement of reasons
1. The admissibility of the application is not contested by the defendant and there is no ground for the Court to raise the matter of its own motion.
2. The application is admissible.
3. The applicant's principal claim is that the post of Head of the Special Department of Development Studies in D.G. VIII — B, occupied by him from 1 October 1965 to 20 June 1968, was re-assessed as a post of Head of Division when the new detailed list of posts of the single Commission was established.
4. Since this re-assessment did not entail any essential alteration of the powers and duties attaching to the post of head of a special department the applicant claims that he should have been re-classified in Grade A 3, the grade corresponding to the post of head of division.
5. Since this was not done the contested decisions violate, according to the applicant, the principle of correspondence between grade and post and detract from the post held by the applcant and from his status.
6. There is no provision in the Staff Regulations either for re-assessment or for re-classification as such.
7. Under the provisions of the Staff Regulations the career of an official progresses on the basis of a system of categories and consecutive grades commencing with the grade in which he was recruited.
8. Although the Staff Regulations are intended to guarantee to an official the grade he has obtained and a post corresponding to that grade they give him no right to any particular post; on the contrary, they leave to the appointing authority the power to assign officials in the interests of the service to the various posts corresponding to their grade.
9. The applicant does not deny that the post to which he was assigned corresponds to his grade prior to the implementing of the Merger Treaty, which is still his at the present time.
10. Moreover, the alteration made to the detailed list of posts to which the applicant refers does not amount to a re-assessment of an existing post, but must be considered as substituting a division for another administrative unit.
11. This substitution in the present case on the one hand led to the creation of a new post of head of division with new responsibilities, and on the other necessitated a fresh appointment for the official who was previously head of the other administrative unit.
12. In these circumstances there is no legal foundation for the applicant's claim that he should be appointed to that new post by way of re-classification.
13. For the purpose of filling the new post, the appointing authority was bound to follow the procedures laid down by the Staff Regulations, in particular by Article 29(1), which states that it shall fill vacant posts by transfer, by promotion and by competition.
14. The only way in which the applicant could be appointed to the vacant post in Grade A 3, bearing in mind his classification in Grade A 4 and Article 7(1) of the Regulations, was by promotion or by competition.
15. In the present case the appointing authority filled the vacancy by way of promotion.
16. On 17 July 1968 it decided to appoint Mr Dieter Frisch to the vacant post and rejected the applicant's application.
17. As a subsidiary point the applicant claims that the said decision is irregular in that it contains no statement of reasons, constitutes a misuse of powers and was adopted in contravention of Article 45 of the Staff Regulations.
18. As to the first submission, the applicant maintains that the information supplied by the defendant both in the minutes of its 45th meeting and in its pleadings gives no indication of the points of fact or of law which could justify the contested decision.
19. Article 45 of the Staff Regulations does not compel the appointing authority to state the reasons for decisions relating to promotion, in particular with regard to unsuccessful candidates.
20. It is for the party claiming that such a decision has no adequate basis to give grounds for or supply proof of his allegation.
21. Since the applicant has indicated these grounds in his submissions relating to misuse of powers and infringement of the Staff Regulations, these complaints will be examined during discussion of his other claims.
22. Secondly, the applicant claims that the disputed decision promoting Mr Frisch to the post of Head of the Division of Development Studies constitutes a misuse of powers by reason of the fact that the decision making the promotion was taken before the opening of the procedure for making the appointment.
23. In support of this he alleges that certain promises were made with regard to the promotion in question both by the Director-General of D. G. VIII and by a member of the Commission, and that document SEC (68) 444 and its annexes show that the decision promoting Mr Frisch was drawn up before the post was officially announced to be vacant.
24. The applicant confines himself to saying in support of his complaint that the abovementioned promise was common knowledge, without providing the Court with better particulars capable of contituting prima facie evidence.
25. On the other hand, the facts alleged must be considered in the context of the task of re-organization following upon the merger of the executives.
26. It was to be expected that during these preparations departments should consider the different possibilities as to the promotions, transfers or appointments required by virtue of this general re-organization.
27. That the documents criticized were purely preparatory documents with no decisive character is made clear moreover by the fact that for a large number of officials, including Mr Frisch, a number of new appointments or promotions was considered.
28. In any case that fact cannot be relied on as being of such a nature as to indicate a misuse of powers in the present case.
29. Lastly, the applicant considers that the haste with which the appointing authority adopted the decision to make the promotion in question is, taken together with other factors, a sufficient indication to enable one to conclude that there was a misuse of powers in the present case.
30. In this connexion he claims that the said authority declared the post vacant and proceeded to make the contested promotion before it replied to his complaint through official channels, notwithstanding that the administration had conceded that it was appropriate to delay the publication of vacancy notices until the officials concerned had been able to submit complaints against their appointments.
31. As regards the date of the vacancy notice it should be remarked that the facts in the case, show that Vacancy Notice COM/40 was published on 13 June 1968, whereas it was not until the meeting of the relevant committee on 4 July 1968 that the administration agreed to delay publication of the vacancy notices.
32. The contested promotion decision, however, was not taken until 17 July 1968, three weeks after the submission of the complaint through official channels on 24 June 1968.
33. Whilst such a lapse of time may not always be sufficient to enable the appointing authority to give a reply to the complaint before it, it can, however, be considered long enough for it to decide what position to adopt with regard to the complaint.
34. On those grounds the submission of misuse of powers cannot be held to be established and must therefore be rejected.
35. However, the circumstances of this case make it imperative for the Court to satisfy itself by way of a thorough examination that a comparative examination of the various applications was in fact made on the occasion of this promotion.
36. The applicant maintains that the contested decision is irregular in that it was adopted without the Commission's having considered the comparative merits of officials eligible for promotion and the periodic reports concerning them, as required by Article 45(1) of the Staff Regulations.
37. The minutes of the Commission's 45th meeting reveal that all the applications were communicated to the Commission after the information in them had been checked, and that the periodic report and the personal file of each candidate was available to the Commission.
38. The same minutes state that the Commission considered the comparative merits of the applicants and of the periodic reports on them.
39. The applicant has shown no reason why this should be doubted.
40. Furthermore, an examination of the periodic reports on the applicant and on the successful candidate justifies the conclusion that the promotion decision in question was not taken without due regard for, or in ignorance of, the objective facts in the case.
41. On these grounds this submission must be rejected as unfounded.
42. The applicant has failed in his application.
43. Under Article 69(2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
44. However, under Article 70 of the Rules of Procedure institutions shall bear their own costs in actions by officials of the Communities.
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 the Treaty establishing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice; THE COURT (First Chamber) hereby:
1 Dismisses the application.
2 Orders the parties to bear their own costs.