C-184/80

JUDGMENT OF 9.7.1981 — CASE 184/80 VAN ZAANEN v COURT OF AUDITORS

CELEX: 61980CJ0184
Datum: 1981-07-09
Källa: eur-lex.europa.eu

THE COURT (Third Chamber) composed of: Lord Mackenzie Stuart, President of Chamber, A. Touffait and U. Everling, Judges, Advocate General : Sir Gordon Slynn Registrar: H. A. Rühl, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Summary of the submissions and arguments of the parties

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. The applicant, Adriaen Van Zaanen, a Netherlands national and an official in Grade L/A 4 with the Commission since 1974, was transferred by a decision of 8 December 1978 to the Court of Auditors in Grade L/A 4, Step 5, of the Translation Division with effect from 1 January 1974. His seniority in step was fixed as from 1 March 1978.

2. In 1978 the Court of Auditors was in the process of setting up its departments including its Translation Division. It considered the possibility of filling the vacant post of Head of the Translation Division using the recruitment procedures provided for in the Staff Regulations but having ascertained that there were no qualified candidates to whom the procedures set out in Article 29 (1) (a) and (b) of the Staff Regulations could be applied it decided to have recourse to the procedure provided for in Article 29 (1) (c). It therefore authorized publication of Vacancy Notice No CC/LA/27/1978 which was published on 24 October 1978.

3. Vacancy Notice No CC/LA/27/1978 announced that the post of Head of Translation Division (Grade L/A 3) was vacant. Of the three candidates who submitted their application for a transfer in due time, the only one to fulfil the conditions set out in the notice (Grade L/A 3) withdrew his application at the end of 1978.

4. In that situation, by decision of 1 March 1979, the appointing authority appointed the applicant as temporary head of the Translation Division of the Court of Auditors for a period of three months starting on 1 March 1979.

5. By decision of 28 February 1980 the appointing authority nominated another official, Mr E., a Danish national and a reviser in Grade L/A 5, as Head of the Translation Division on a temporary basis from 1 March to 30 August 1980. That decision was extended to 30 November 1980.

6. On 3 April 1980 the applicant submitted a complaint to the appointing authority under Article 90 of the Staff Regulations. In his complaint he criticized the creation by the appointing authority of another temporary posting as being contrary to the Staff Regulations. He claimed that a vacant post may not be filled by a procedure which involves by-passing a grade and that the temporary appointment of his successor was hardly reconcilable with the interests of the service which had for a long time required that the vacant post in L/A 3 should be filled lawfully, that is to say by a competition under Article 29 of the Staff Regulations or else by one of the other methods provided for by that article, namely promotion or transfer.

7. On 2 September 1980 the Court of Auditors published Notice of Competition No CC/LA/3/80 relating to an internal competition for the post of Head of its Translation Division.

8. By an application lodged at the Court Registry on 4 September 1980 the applicant brought an action for, inter alia, the annulment of the decision to terminate his temporary posting.

9. After the closing date for applications for the internal competition had been extended to 2 October 1980 the applicant submitted his application on 1 October 1980. However, he stated: I intend to make an appeal to the Court of Justice pursuant to Article 91 (4) of the Staff Regulations in order to obtain an interim ruling suspending this competition until a decision has been given on the merits of my main application.

10. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Third Chamber), to which the case was assigned by the Court's decision of 9 October 1979 (Official Journal 1979, C 265, p. 8) decided to open the oral procedure without any preparatory inquiry.

II —. Conclusions of the parties

(a). Declare the application admissible;

(b). Declare it well-founded;

(c). Consequently declare that since no statement was provided of the reasons on which the decision to terminate the applicant's temporary posting was based, it cannot be relied upon against him and must therefore be annulled;

(d). Declare that in any event the appointing authority could not nominate another servant for a temporary posting as that period cannot exceed one year;

(e). Declare that on the contrary the appointing authority was bound to advertise the vacant post and under Articles 4 and 29 of the Staff Regulations had to examine the possibility of filling the post by promotion;

(f). Declare that by its omission the appointing authority has caused injury to the applicant and that the damage suffered may be assessed at one unit of account to be converted into Belgian francs at the rate in force on the date of judgment;

(a). The L/A 3 post in question is more or less reserved to a national of one of the Member States and is not bound to be given to a Netherlands national;

(b). The nomination of an L/A 5 official as Head of Division on a temporary basis has seriously damaged the interests of the department in question;

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

IV —. Oral procedure

1. By application lodged at the Court Registry on 4 September 1980 the applicant, an official of the Court of Auditors in Grade L/A 4, brought an action under Article 179 of the EEC Treaty for the annulment of a decision of the appointing authority of 28 February 1980 terminating as from 29 February 1980 the applicant's temporary occupation of the post of Head of the Translation Division, a post corresponding to Grade L/A 3. In the same application the applicant further asks the Court to declare, first, that the appointing authority could not appoint another official temporarily to the post of Head of the Translation Division as the period of a temporary posting may not exceed one year and, secondly, that the appointing authority was bound to advertise the vacant post and according to Articles 4 and 29 of the Staff Regulations had to examine the possibility of filling the post by promotion. The applicant finally asks the Court to declare that by its omission the appointing authority has caused injury to the applicant which may be assessed at one unit of account to be converted into Belgian francs at the rate in force at the date of judgment.

2. The file on the case shows that the applicant, an official of the Commission in Grade L/A 4 since 1974, was transferred by a decision of 8 December 1978 to the Court of Auditors in Grade L/A 4, Step 5, of the Translation Division (L/A) with effect from 1 December 1978. That transfer took place at a time when the Court of Auditors was setting up its departments, in particular its Translation Division. On 24 October 1978, in order to fill the vacant post of Head of that Division, the Court of Auditors published Vacancy Notice No CC/LA/27/1978 in accordance with the procedure laid down in Article 29 (1) (c) of the Staff Regulations. However, that procedure was unsuccessful owing to an absence of applications meeting the conditions set in the vacancy notice.

3. Subsequently, by decision of 1 March 1979 the appointing authority made the applicant acting Head of the Translation Division of the Court of Auditors for a period of three months starting on 1 March 1979. That decision was adopted under Article 7 (2) of the Staff Regulations which states :

4. By decision of 21 June 1979 the appointing authority extended that temporary posting by one month, from 1 to 30 June 1979, and at the same time granted the applicant the differential allowance provided for by the second subparagraph of Article 7 (2).

5. That decision was extended three times until 29 February 1980 when the applicant had occupied the post for one year, which is the maximum period laid down in the second subparagraph of Article 7 (2) for a temporary posting.

6. The last decision extending the temporary posting from 1 January 1980 until 29 February 1980 was not adopted until 28 February 1980 and stated that the differential allowance granted to the applicant shall come to an end on that date.

7. On 28 February 1980 the appointing authority adopted another decision by which it appointed another official, Mr E., of Danish nationality and a reviser in Grade L/A 5, as acting Head of the Translation Department from 1 March to 30 August 1980. That decision was extended until 30 November 1980.

8. As a result, on 3 April 1980 the applicant submitted a complaint to the appointing authority under Article 90 of the Staff Regulations in which, although accepting that by virtue of Article 7 (2) of the Staff Regulations his temporary posting could not be extended again, he contended that the appointment of Mr E. was unlawful because it was clear from the wording of Article 7 (2) that the appointing authority may not fill a post left vacant for a period exceeding one year by making successive temporary appointments to it. What is more, the appointing authority is also prohibited under that provision from calling upon an official to occupy temporarily a post in a career bracket higher than his own, which is what the appointing authority had done. Finally, the appointment of Mr E. was not in the interests of the service which required that the post in question be filled by means of one of the procedures laid down in Article 29 of the Staff Regulations.

9. The complaint met with no reply and the applicant lodged the present appeal with the Court.

10. It should also be noted that on 2 September 1980 the appointing authority published, in accordance with Article 29 (2) (b) of the Staff Regulations, a Notice of Competition No CC/LA/3/80, relating to an internal competition for the post in question. In September 1980 the applicant indicated to the Selection Board that he would not be a candidate for the reasons expressed in his complaint and in his application to the Court but nevertheless he later submitted his formal application before the closing date. During the oral procedure the applicant stated, without being contradicted, that none of the candidates succeeded in the competition.

11. In support of his application the applicant makes the following submissions :

12. The Court of Auditors contests the admissibility of those submissions for the following reasons :

13. The first two arguments put forward by the Court of Auditors in support of its contention that the application is inadmissible cannot be upheld as they concern issues relating to the substance of the case. As to the third argument, it follows from the wording of the complaint, or at least by necessary implication, that the applicant's third submission is covered by it, so that that argument must be rejected as well. Finally, it must be stated, with regard to the Court of Auditors' final argument, that the applicant had an obvious interest in the temporary appointment of Mr E. being annulled for the reasons he puts forward in so far as the annulment of Mr E.'s appointment would open the way to one of the procedures laid down in Article 29 of the Staff Regulations in which the applicant would be able to participate.

14. It follows from those considerations that the application is admissible.

15. The applicant's first submission seeks the annulment of the decision terminating his temporary posting on the ground that the reasons on which the decision is based are insufficient.

16. That submission cannot be upheld. Even though that decision of 28 February 1980 did not expressly provide that the applicant's temporary posting would terminate definitively on 29 February 1980 by virtue of Article 7 (2) of the Staff Regulations, that is the implicit result of the decision which states that the differential allowance awarded to the applicant on account of his temporarily occupying the post in question shall come to an end on that date. It is also apparent from the text of the complaint that the applicant knew that in view of the terms of Article 7 (2) his temporary posting could not be extended again. It follows that the reasons on which the decision is based, even though not wholly appropriate, were therefore sufficient in law.

17. The applicant then contends that the appointing authority was not entitled to appoint Mr E. as Head of the Translation Division on a temporary basis on the ground that under Article 7 (2) the duration of a temporary posting may not exceed one year. The applicant further claims that the appointment of Mr E. is in any event unlawful. He argues that it follows from Article 7 (2) that an official may be called upon to occupy temporarily only a post in or immediately above his own grade.

18. That submission, too, cannot be upheld. It is apparent from Article 7 (2) that the maximum duration of a temporary posting relates to the maximum period in which an official may temporarily occupy the post in question. It does not impose a limit of one year on the temporary occupation of the post. That limitation applies only to the period in which the post may be occupied by the same official. Therefore, at the end of that period, the appointing authority has the right to fill the post by appointing another official who fulfils the conditions laid down in the first subparagraph of Article 7 (2).

19. What is more, it in no way follows from the first subparagraph of Article 7 (2) that an official may be called upon to occupy temporarily only a post corresponding to a grade no higher than that immediately above his own. The wording of that provision in fact shows that it envisages the temporary appointment of an official to a post in a career bracket... which is higher than his substantive career bracket. It follows that the appointing authority had the right to appoint Mr E., who was in a career bracket comprising Grades L/A 4 and L/A 5, as Head of the Translation Division which is a post corresponding to Grade L/A 3.

20. According to the file on the case the main submission which the plaintiff makes against the appointing authority is that it did not commence a new promotion procedure in accordance with Articles 4 and 29 of the Staff Regulations in good time, that is to say, from the moment when it ought to have established, with regard to the applicant and during his temporary posting, that the procedure commenced on 24 October 1978 with the advertising of the vacant post in Vacancy Notice No CC/LA/27/78 had. failed. In the applicant's view, if the appointing authority had acted in this way he would have had a good chance of being successful in such a competition.

21. The Court of Auditors has told the Court that the reason for the delay in starting a new procedure to recruit a Head of the Translation Division resided in the fact that after the unsuccessful outcome of the first vacancy notice of 24 October 1978 it decided to organize a competition for the post in question. At that time, however, the Court of Auditors, which was a new institution established on 25 October 1977, was in the process of setting up its departments which entailed in particular the organization of some 157 competitions including that for the post of Head of the Translation Division, No CC/LA/3/80, which was one of the last. On 28 February 1980 the notice of competition had not yet been published. That was why the administration had to decide to make a new temporary posting in order not to leave the post in question vacant.

22. As those reasons have not been seriously contested they should be accepted and it should be stated that the Court of Auditors did not act against the interests of the service by postponing out of necessity the implementation of the procedures laid down in Article 29.

23. For those reasons the applicant's third submission should therefore be rejected.

24. In the result the appointing authority has not harmed the applicant by its omission and the applicant's claim for compensation for any damage must therefore also be rejected.

25. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure the institutions are to bear their own costs incurred in proceedings brought by servants of the Communities. That provision must apply by analogy in this case.

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

1 Dismisses the application as unfounded;

2 Orders the parties to bear their own costs.