JUDGMENT OF 11. 5. 1978 — CASE 25/77 DE ROUBAIX v COMMISSION

In Case 25/77

THE COURT (First Chamber) composed of: G. Bosco, President, J. Mertens de Wilmars and A. O'Keeffe, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility

Substance

Decision

Admissibility

Substance

Costs

I —. Facts and written procedure

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

1. The application, which was lodged on 18 February 1977, seeks the annulment of Vacancy Notice No COM/267/76 relating to a post in Grade B 1 assigned to the Delegation of the Commission in Washington (Euratom Supply Agency), of the decisions not to accept the applicant's application for that post and to appoint another candidate to it, and of the implied decision rejecting the applicant's complaint lodged on 2 August 1976.

2. During the preparation of the preliminary draft budget for 1975 the Agency had repeated its earlier request for the creation of two posts in Grade B 1, one of which was to be assigned to Brussels and the other to Washington.

3. However, during the preparation of the preliminary draft budget for 1976 the Agency confined itself for budgetary reasons to a request for the creation of a single post in Grade B 1, to be assigned to the Delegation of the Commission in Washington.

4. The vacancy notice in dispute, which thus concerned a post in the grade in question assigned to Washington, lists the following necessary qualifications:

5. The applicant, an official in Grade B 2, who, since her appointment in 1959, has spent her entire subsequent career at the Euratom Supply Agency, was advised on 6 July 1976 that her application for the post in question had not been successful.

6. The defendant objects that the application is inadmissible on the ground that the vacancy notice at issue does not constitute an act adversely affecting an official within the meaning of Article 91 (1) of the Staff Regulations.

7. In fixing the conditions governing access to the post the vacancy notice, drawn up within the context of Article 29 (1) (a) of the Staff Regulations, determines the officials whose candidature may be accepted.

8. In so far as the effect of those conditions is to rule out the candidature of officials who are eligible for transfer or promotion, the vacancy notice constitutes an act adversely affecting such officials.

9. The objection of inadmissibility must therefore be dismissed as regards that point.

10. The Commission also submits that in reality the application for annulment is directed not against the vacancy notice itself but against the decision to assign the newly-created post to Washington.

11. It maintains that decisions relating to the distribution of the available posts in the various administrative units fall within the field of its discretionary powers in the matter.

12. The admissibility of that head of the conclusions is linked to the substance and, more particularly, to the complaint relating to misuse of powers.

13. The applicant maintains that the contested measures infringe Articles 45 (1) and 7 (1) of the Staff Regulations and are vitiated by misuse of powers.

14. She alleges that the comparative merits of the candidate appointed were not considered as against her own, since her periodic report for the period from1 July 1973 to 30 June 1975 was only drawn up after the other candidate had been appointed.

15. The applicant adds that the fact that for many years she had perfomed de facto duties (of Head Clerk) corresponding to a grade higher than her own was not taken into account.

16. She further states that the vacancy notice at issue was drawn up not in the interests of the service but in order to permit the appointment of the other candidate, which was already agreed beforehand.

17. Although, under Article 7 (1), an official cannnot be compelled to perform duties corresponding to a grade higher than his own, except on a temporary posting, the fact that he agrees 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.

18. Although it is true that on several occasions the Director General of the Agency requested the creation of two posts in Grade B 1, one to be assigned to Washington and the other to Brussels, justified budgetary considerations led him subsequently to submit only a single application concerning the post for Washington.

19. By deciding to give priority in that way to the post to be created in Washington, the Agency thereby acknowledged that the duties appertaining to that post involved additional responsibilities, in particular having regard to the importance of the relations to be maintained with the United States circles concerned.

20. The applicant's age and seniority in the grade and post, even though superior to the successful candidate's, must not prevail over the nature of the duties to be carried out.

21. As regards the absence of her last periodic report, the applicant maintains that this would have prevented the consideration of the comparative merits of the candidates — if it had been carried out — from taking, place under the required conditions.

22. However, the applicant has not shown in what way the absence of the said report could have been prejudicial to her, since it could not have added anything to the excellent assessments made in the earlier reports.

23. The application is unfounded and must therefore be dismissed.

24. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

25. The applicant has failed in her submissions.

26. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions must bear their own costs.

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

1 Dismisses the application;

2 Orders the parties to bear their own costs.