JUDGMENT OF 19. 3. 1975 — CASE 189/73 VAN REENEN v COMMISSION

In Case 189/73

THE COURT (Second Chamber) composed of: A. J. Mackenzie Stuart, President of Chamber (Rapporteur), H. Kutscher and M. Sørensen, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility

1. Lateness of the complaint

2. Mere confirmatory measure

3. Admissibility of the claim for damages

B — The substance

1. Lack of statement of reasons

2. Violation of the principle of correspondence between duties and grade

3. The claim for damages

Oral Procedure

Law

Costs

I —. Facts and procedure

1. To my knowledge, the Commission of the European Community decided in 1969 that promotion from Category B to Category A would only be open to officials who had succeeded in an internal competition based on qualifications and in a competition for drawing up a reserve list for the future recruitment of administrators.

2. In addition, I participated in the competition on the basis of both qualifications and oral tests which was intended to fill post COM/ 576/70 (Administrators). In accordance with the provisions of the notice of competition (Doc. 1X/1253/72), candidates who obtained at least 35 points out of 60 in the tests as a whole succeeded. Although I obtained altogether 39 out of 60, according to memorandum 2.11/No 4900/72 of 25. 9. 1972 from the Head of the Personnel and Administration Division of the Joint Research Centre at Ispra, he informed me, by memorandum dated 11 July 1972, that my application for the aforementioned post could not be accepted.

3. The manner in which post COM/576/70 was filled leads me to the conclusion that the aforementioned decision of the Commission of 1969 is no longer applied.

4. As I also pointed out at the end of my complaint of 18 August 1972, I hold a diploma which is recognized as equivalent to a university degree and I have for several years discharged duties always previously performed by an official in career bracket A5 — A4.

II —. Conclusions of the parties

1. Declare null and void the express rejection by the Commission, in its letter of 10 September 1973, of the claim made by the applicant in his request of 4 October 1972 to be classified in Category A, at a grade corresponding to his duties;

2. Declare and rule that by virtue of the principle of correspondence between duties und grades the applicant has the right to be classified in career bracket A5 — A4, which corresponds to the level of his duties,

3. Declare and rule that, by neglecting to take the measures necessary to ensure such classification with effect from 1 February 1970, the defendant was guilty of a wrongful omission which has caused the applicant material and non-material damage;

4. Order the defendant to pay BF 1 as compensation for the non-material damage;

5. Declare and rule that in respect of material damage the defendant must pay the difference between salary and benefits paid in respect of Grade B1 and those to which he would have been entitled had he been duly classified in Grade A5, the step being determined in accordance with Article 46 of the Staff Regulations;

6. Order that under this head the defendant should pay provisional compensation of BF 200000, the case to be brought before the Court once more when the Commission's services have calculated the exact amount of damages owing to the applicant;

7. Order the defendant to bear the costs.

1. Dismiss as unfounded the action brought before it against the express decision of 10 December 1973 rejecting the applicant's complaint;

2. Declare that a ruling cannot be given on the applicant's demands which are unrelated to the submissions in the originating application, in that these demands relate to the merits of an implied decision of rejection, the annulment of which has not been sought;

3. Alternatively, dismiss these demands as unfounded;

4. Order the applicant to bear the costs.

III —. Submissions and arguments of the parties

A —. Admissibility

1. Lateness of the complaint

2. Mere confirmatory measure

3. Admissibility of the claim for damages

B —. The substance

1. Lack of statement of reasons

2. Violation of the principle of correspondence between duties and grade

3. The claim for damages

1. The refusal over many years to reclassify the applicant without recourse to a competition.

2. The pursuit of a policy of making promotion from one category to another, even in cases of reclassification, subject to an open competition, which is in itself an infringement of the Staff Regulations, since article 45 (2) does not lay down such a requirement.

3. The failure, although no longer pursuing that policy, to rectify the applicant's administrative position, even by organizing an individual competition, whereas it had adopted and posted Vacancy Notice COM/ 534/73.

1. By application lodged on 14 December 1973 the applicant brought before the Court an action for the annulment of the Commission's decision of 10 September 1973 rejecting his request of 4 October 1972 that he be reclassified in Grade A5.

2. He is further claiming that the defendant should be ordered to make good the damage which he suffered as a result of the Commission's negligent omission to take the measures necessary to effect such reclassification with effect from 1 February 1970.

3. In support of these two heads of claim the applicant maintains that under certain circumstances an official in a lower category may be entitled to direct appointment to the next higher category without a competition.

4. Article 45 (2) of the Staff Regulations expressly states that An official may be transferred from one service to another or promoted from one category to another only on the basis of a competition.

5. It is clear from Article 29 that in considering whether it is expedient to hold a competition the appointing authority exercises a discretionary power.

6. Although, under Article 7 (1), an official cannot be compelled to perform duties corresponding to a grade higher than his own, except on a provisional basis, the fact that he agress to perform them may be a factor to be borne in mind in connexion with promotion, but does not give him the right to be reclassified.

7. By refraining from organizing a competition requiring qualifications corresponding to those of the applicant, thereby rendering it impossible for the latter to be appointed to Category A, the defendant was not acting ultra vires.

8. Since the action clearly lacks any foundation, there is no need for the Court to give a ruling on the objection of inadmissibility entered by the Commission.

9. The action brought by the applicant must therefore be dismissed.

10. The applicant's action has failed.

11. In pursuance of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

12. However, in pursuance of Article 70 of the Rules of Procedure, in actions brought by officials of the Communities, institutions shall bear their own costs.

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

1 Dismisses the action;

2 Orders the parties to bear their own costs.