OPINION OF MR ROEMER — CASE 12/69 WONNERTH v COMMISSION

Mr President,

Members of the Court,

Let me recall briefly the essential facts giving rise to the action before us today.

The applicant, Mr Wonnerth, entered the service of the High Authority of the European Coal and Steel Community in 1958. He was an official and headed the Technical Research Division which formed part of the Directorate for Production within the Directorate-General for Coal. After initial classification in Grade A5 he rose to Grade A4 in 1960 and was finally promoted to Grade A3 in 1962. On the merger of the Executives the Division of which the applicant was the Head was disbanded. In the reformed single Commission the applicant was assigned to the Directorate for Coal which formed part of the Directorate-General for Energy, as adviser on coal research, and without any change in his classification. Within the context of the rationalization of its administration and the reduction in the number of posts the Commission applied to the applicant the provisions of Chapter II of Regulation No 259/68 of the Council, with which we are already familiar from other cases and which provides for the application of special measures to officials of the Commission. He was not required to leave the service, but the Commission requested him under Article 8 of this Regulation to state whether he accept[ed] transfer to a post corresponding to the career bracket immediately below that applicable to his grade. The applicant signified his acceptance. By virtue of a decision of the Commission of 21 May 1968 he has performed since 4 June 1968 duties corresponding to Grade A4. However, in accordance with the provision in Article 8(2) of Regulation No 259, he retains the rights to the emoluments corresponding to Grade A3 and to all the advantages relating thereto. Subsequently, by invoking another right sanctioned by Article 8(2) — the priority right of transfer to any post corresponding to his grade which may fall vacant or be created —the applicant applied for several posts in Grade A3 for which vacancies had been announced. To some of these applications he received no reply and he was informed that the others could not be entertained. It appears that an application submitted on 9 September 1968 was still being considered when the present appeal was lodged at the Court.

The question in this action concerns the application submitted by the applicant on 25 October 1968 for the post of Head of the Work Safety Division, the vacancy in the Directorate-General for Social Affairs having been published under Reference No COM/161. His application was accompanied by a detailed memorandum in which he gave an account of his former activities and of his experience in employment in matters of work safety. On 6 November he sent a letter in support of his application to the Commissioner responsible for the Directorate-General for Social Affairs. He moreover drew the attention of the President of the Commission to has application, regarding which he provided him with certain explanations in a further letter also dated 6 November. The memorandum to which I have just referred was attached to these two letters.

However, the approaches thus made by the applicant were unavailing. The post advertised was awarded, by way of promotion to an official in Grade A4 by a decision of the Commission of 18 December 1968. On 19 December 1968 the applicant submitted a complaint against this appointment to the President of the Commission in a letter in which he maintained that the decision had been taken in disregard of the priority right of transfer which he held under Article 8 of Regulation No 259 and he therefore requested the Commission to suspend the official announcement of the decision to the candidates pending clarification of the matter in dispute. In this also he was unsuccessful: the promotion in question was published in an internal document of the Commission dated 16 January 1969. The applicant was subsequently informed by a letter from the Directorate-General for Administration and Personnel of 30 January 1969 simply that the appointing authority had been unable to entertain his application.

It is as a result of this letter that he lodged his appeal to the Court on 5 March 1969.

In his application, he claimed that the Court should:

In addition, he claimed the annulment of the decision of the Commission refusing to transfer him to the post advertised and appointing another official thereto.

finally, he asked for a declaration that the official thus appointed must intervene in the action.

In his reply the applicant set out additional conclusions claiming that, when a priority right is claimed an the award of a post, recruitment to such a post must be carried out on the basis of precisely defined rules and that either the Court shall itself define at least the general nature of such rules or that it shall order the Commission to adopt them.

The Commission asks the Court to dismiss as inadmissible the conclusions in which the applicant claims the annulment of the alleged decision refusing to appoint him, on the grounds that no such decision exists. In addition, the defendant requests you to state that the fresh conclusions set out by the applicant in his reply are also inadmissible. The defendant moreover considers that the appeal as a whole must be dismissed as unfounded.

In order to open the legal consideration of this case, I must first consider certain questions of admissibility.

I — Questions of admissibility

(1). As I have already pointed out, the Commission disputes in limine litis that it adopted a decision for the express purpose of rejecting the applicant's application. It maintains that there can, therefore, be no question of the annulment of such a decision.

(2). The admissibility of the two heads of conclusions by which the applicant is requesting you to state, first, that he is suitable for the post advertised and, secondly, that he has a claim to be transferred thereto likewise appears doubtful.

(3). I do not need to deal with his conclusions claiming that the official appointed to the post in question must enter an appearance, or, in the words of his appeal, must be compelled to intervene. Whatever one's opinion on the system of compulsory intervention and, in particular, on the question whether it could exist in our procedural law, the decisive factor is that it does not appear in the provisions at present in force governing the procedure of the Court of Justice. The Court cannot therefore order an intervention; it must rather allow the parties concerned to decide for themselves whether or not to participate in the action. This head of the applicant's conclusions is therefore without legal foundation and cannot be accepted.

(4). Finally, the Commission maintains that the conclusions claiming certain declaration which the applicant sets out in his reply must be dismissed as out of time. However, I hesitate to follow the Commission on this point. It is of course clear that these conclusions do not appear in the application, even disguised in the form of a statement of reasons. Let me observe, however, that the applicant was only able to set them out on the basis and as a result of the production of the minutes of a meeting in the Commission, since the document was necessary in order to obtain the details of the appointment procedure and, in particular, to ascertain that it took place without any special implementing provision having been made. In this connexion it seems appropriate to refer to Article 42 of the Rules of Procedure, to the principles of which the Court has had recourse by analogy on several occasions when an amendment or an addition has been made to conclusions set out in the application.

II — Substance

After making these observations on admissibility, I shall now consider whether the applicant's conclusions are well-founded. I shall deal principally with those which claim the annulment of the decision of 18 December 1968, in other words with those in which the applicant requests the annulment of the appointment of another official to the post advertised. The principal argument which he puts forward against this appointment is that it was made in disregard of his priority right of transfer provided for by Article 8 of Regulation No 259. In this connexion he first sets out a number of considerations of principle, which, in my opinion, must be regarded as essentially justified. I must therefore refer to each one expressly. It thus appears undeniable that the declassification (if I may so call it for the sake of brevity) provided for in Article 8 of Regulation No 259, like all the special measures provided for in Chapter II of this Regulation, must follow extremely strict rules because it constitutes an exception to the general rules which the Staff Regulations lay down concerning the career bracket of officials. According to these principles the Commission, acting in the context of the organization of its administration, must ensure that this situation, which is in principle contrary to the Staff Regulations, exists for as short a period as possible. This requirement is a corollary of the basic principle of Chapter II of Regulation No 259 which concerns rationalization and a reduction in the number of posts (objectives which largely coincide with the aim of making financial economies). It is admittedly difficult to reconcile with this aim the maintenance of officials of Grade A3 on duties corresponding to a lower grade while appointing, by means of promotion, officials of that lower grade to vacant posts corresponding to Grade A3. However, another not insignificant reason which requires the administration to act with particular caution is the interest of the declassified officials who have been recognized as having a priority right (Vorrecht) to transfer or, as the French version of the Regulations more neatly terms it, a droit de priorité. This right is intended to ensure that the position of such officials is brought as quickly as possible into line with the basic principle of the law relating to public servants which has been emphasized by the Court on many occasions (Judgment of 15 December 1965 in Case 15/65 (Klaer v High Authority [1965] E.C.R. 1054). According to this principle there must be a correspondence between the grade and the duties performed. However, it is undeniable that if this priority right is not to remain a dead letter it must be matched by a strict obligation on the administration. In this respect there are several considerations to be taken into account with which I shall now deal in order to determine whether, in this instance, the Commission has satisfied all the demands which can reasonably be made of it.

(1). First, as we have seen, the applicant argues that for Article 8 of Regulation No 259 to be applied, detailed rules and precise criteria must be laid down in order that it can be determined whether the Commission correctly assessed the applications for transfer submitted in pursuance of this provision.

(2). In addition, the applicant maintains that where applications for a vacant post are submitted both by officials enjoying a priority right and by officials eligible for promotion (as was the case in this instance) the Commission is not entitled in considering comparative suitability and merits (as provided in Article 45 in matters of promotion) to review both groups together. He considers that, in such a situation, it is first necessary to consider separately the applications submitted by officials holding a priority right and he goes so far as to say that a separate procedure is required and that it is only where the vacancy cannot be filled as a result of such procedure that the Commission may later consider the case of officials eligible for promotion.

(3). I have already referred to a further guarantee of the priority right of transfer which resides in the obligation on the Commission, when the outcome of the consideration does not enable the post to be filled, to provide a detailed statement of reasons showing in what way and how closely the factors put forward were considered. Let me examine, therefore, whether the Commission fulfilled this requirement. Of course, I shall not need to go so far as to require the Commission to adopt a reasoned decision in respect of each of the officials concerned and to notify him of it. In the cases concerning appointment with which the Court has dealt it has never maintained that the administration was obliged to act in this way as regards the unsuccessful candidate; moreover, it cannot be shown that such a requirement must be met as regards the candidates enjoying a priority right. My consideration must therefore concern only the question of what reasons for the adoption of the contested decision were set out in the minutes of the meeting of the Commission and, in accordance with the judgment in the Serio case of 15 December 1966 (Case 62/65, Serio v Commission of the EAEC [1966] E.C.R. 561), how the Cammission attempts to give reasons for its decision before the Court.

(4). It is therefore unnecessary for me to continue my inquiry. There is no reason for me to give an opinion on the conclusions claiming a definition of the priority right to transfer. I believe that I have said enough on this point in the earlier consideration. I do not believe it necessary for you to make a special ruling on this point in the operative part of your judgment. It is also unnecessary for you to deal with the conclusions by which the applicant claims (in the alternative) the annulment of the implied decision of rejection which is deemed to have been taken at the end of a period of two months from the date on which the complaint was submitted.

III — Summary

I am therefore of the opinion that:

The conclusions by which the applicant claims the annulment of the (alleged) decision to reject his application, a declaration by the Court that he is suitable for the post advertised and that he is entitled to be appointed to it, and a declaration that the official who was appointed to the post shall be obliged to intervene in the action, should be dismissed as inadmissible.

The conclusions by which the applicant asks the Court to declare that the Commission must adopt precise rules for the award of a post applied for by officials enjoying a priority right are unfounded.

On the other hand, the appeal appears justified to the extent that it seeks the annulment of the decision appointing another official to the post advertised.

The Commission must bear all the costs of the action as the applicant has been successful as to the main part of his claims.

1 Translated from the German.

2 Volume I, page 324