JUDGMENT OF 13. 12. 1979 — CASE 14/79 LOEBISCH v COUNCIL

In Case 14/79

THE COURT (Second Chamber) composed of: A. Touffait, President of Chamber, P. Pescatore and Lord Mackenzie Stuart, Judges, Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — The conclusions of the parties

III — Summary of the submissions and arguments of the parties

First part

Infringement of Article 5 and of Annex I A to the Staff Regulations and breach of the principle that the grade must correspond to the post

Second part

Breach of the principle that posts and grades are to be organized according to rank in the European civil service and of the principle of good administration

First part

Infringement of Article 5 (3) of the Staff Regulations

Second part

Breach of the principle of equal treatment between officials and of the principle of equity

IV — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. The conclusions of the parties

1. Declare that the application is admissible and well founded;

2. Declare that the post of Head of Translation Department of the defendant institutions to which the applicant has been appointed is a post of Director in Grade A 2 and that the applicant must therefore be graded in Grade A 2 with effect from 1 April 1974 or at least from 4 May 1978;

3. Order the defendant to grade the applicant in Grade A 2 with effect from 1 April 1974 or at least from 4 May 1978;

4. Annul the defendant's refusal to grade the applicant in Grade A 2 with effect from 1 April 1974 or at least from 4 May 1978 and the implied decisions rejecting his request and complaint which were made for this purpose;

5. Order the defendant to pay the costs.

III —. Summary of the submissions and arguments of the parties

IV —. Oral procedure

1. By an application which reached the Registry on 25 January 1979 Ralph Loebisch, Head of the Translation Department of the General Secretariat of the Council of the European Communities, instituted proceedings claiming that he should be appointed to Grade A 2 and also asking for the annulment of the implied decisions rejecting his request and complaint which were made for that purpose.

2. The applicant entered the service of the Council of Ministers as a translator on 1 February 1958. On 25 May 1973 he was promoted to Grade L/A 3 and appointed Head of the Translation Division. The Translation Department of the Council consists of six separate divisions, one for each of the six official languages of the Communities, and each under the authority of a head of division. The six heads of division are under the authority of the Head of the Translation Department who himself is under the authority of the Director of Directorate II Operations — Translation Department, the latter being responsible to Directorate-General A of the General Secretariat.

3. Since the parties dispute both the facts and the law it is advisable to consider in turn the decisive factors on the Court's file, that is to say the implication of the note of 30 April 1974, the nature of the applicant's present duties and their place in the Council's detailed list of posts, the alleged discrimination against the applicant compared with his predecessor, and finally whether he may be entitled to a particular grading or promotion.

4. By the note of 30 April 1974 the applicant was placed at the disposal of a directorate as Head of the Translation Department. Whatever the title or terms of a document may be and whatever description may have been applied to it, its scope should be defined with reference to its real nature. The note of 30 April constitutes a transfer of the applicant in the interests of the service which has no effect on his grade; that document cannot constitute an actual appointment since there is no such career bracket as Head of Translation Department in the list of career brackets applicable to translators.

5. The applicant has remained an official in Grade L/A 3, since the posts of head of a translation division and head of languages department are both assigned to Grade L/A 3 in the list of detailed posts of the General Secretariat of the Council.

6. It is now necessary to consider whether the duties of Head of the Translation Department of the said General Secretariat correspond or not to the tasks which an official in Grade L/A 3 may in the ordinary course be required to perform.

7. In this connexion the applicant refers to the fact that the Translation Department of the Council is a large administrative unit which contains about 250 graduates. The answer to this argument must be that it is impossible to find in the Staff Regulations anything to support the argument that the grade to which an official is appointed depends upon the number and status of his subordinates.

8. The applicant also relies on the fact that he is the immediate superior of the other heads of translation divisions. This argument scarcely applies to the administrative co-ordination of the work of the department; this duty is not in fact of such a kind as automatically to eliminate the subordinate status of the officials whose activities are subject to such co-ordination, which it is perfectly normal to entrust to an official of the same grade.

9. The applicant also relies on the supervisory powers which he exercises over his colleagues by making periodic reports on them. Although it is true that the reporting officer is usually in a higher grade than the officials whose ability, efficiency and conduct in the service he has to assess, there is no provision of the Staff Regulations against such a practice; and there is no logical reason why it should not be feasible to entrust a senior experienced official with the duty of making periodic reports on officials having the same grade as his own. It is therefore unnecessary for a director to be the first reporting officer for heads of translation divisions.

10. The applicant has drawn attention to the fact that the post at issue in this case was previously filled by an official in Grade A 2, which corresponds to the duties of a director. It is necessary to stress in this connexion that Mr Noack, the former Head of the Translation Department, had been appointed to Grade A 2 ad personam; it may be inferred from this a contrario that the post itself is not in fact classified as Grade A 2 post, since the applicant's predecessor was only appointed to this grade owing to a discretionary promotion having regard to his personal merits and probably to the fact that he was at the end of his career.

11. Finally the applicant regards the Council's behaviour towards him as a breach of the principle of equity; he performs duties as a director which justify an appointment to Grade A 2 in the other institutions. The answer to this argument must be that each institution controls its own detailed list of posts and has a wide discretion as regards its internal organization. It may be noted that the Council thought it advisable to place a director — who moreover at the same time directs another administrative unit — at the head of the applicant's department and that the department has therefore nôt been deprived of direction.

12. It is thus apparent that as a mater of fact there is no position under the Staff Regulations to which the applicant could claim to be promoted. Even if such a position were created, following an alteration of the detailed list of posts under the Council, the appointing authority would still be free to assess the applicant's merits with a view to his possible promotion.

13. The applicant's claims are therefore not well founded and must consequently be dismissed.

14. Pursuant to Articles 69 and 70 of the Rules of Procedure the parties must bear their own costs.

On those grounds, THE COURT (Second Chamber) hereby

1 Dismisses the application as unfounded;

2 Orders the parties to pay their own costs.