JUDGMENT OF 13. 12. 1984 — CASE 14/84 HANSEN-MEYER / ESC

In Case 14/84

THE COURT (Third Chamber) composed of: C. Kakouris, President of Chamber, U. Everling and Y. Galmot, Judges, Advocate General: P. VerLoren van Themaat Registrar: D. Louterman, Administrator

gives the following

JUDGMENT

Facts and Issues

I — Background

A — Preliminary considerations concerning the concept of streams or basic posts in Category B

B — Facts of the Case

II — Written procedure and conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility

1. Action against an internal measure which may not be contested

2. Lack of an interest in bringing an action

3. Delay in instituting proceedings

B — Substance

IV — Replies given by the parties to a question from the Court

V — Oral procedure

Decision

The claim for a declaration that Decision No 317/83/A is void in so far as it maintains the applicant's designation as a secretarial assistant

The other claims made in the application

Costs

I —. Background

A —. Preliminary considerations concerning the concept of streams or basic posts in Category B

(i). the normal B stream (for officials qualified to carry out administrative and office duties) ;

(ii). the secretarial B stream (for officials involved essentially in secretarial work and typing) ;

(iii). the technical B stream (for officials engaged upon work of a technical nature).

B —. Facts of the Case

(i). to amend the detailed list of posts in the general secretariat by Decision No 306/83/A of 1 July 1983 by exchanging two posts, that is to say by classifying as a normal B 5/B 4 post the secretarial B 5/B 4 post allocated to Group III and, conversely, by classifying as a secretarial B 5/B 4 post the normal B 5/B 4 post allocated to the Mail/Records/Library/Documentation Department;

(ii). to assign Mrs Barbesta to the normal B 5/B 4 post thus allocated to the secretariat of Group III (Decision No 316/83/A of 1 July 1983);

(iii). to transfer Mrs Hansen, in her existing capacity as a secretarial assistant, to the secretarial B 5/B 4 post now allocated to the Mail/Records/Library/Documentation Department (Decision No 317/83/A of 1 July 1983).

II —. Written procedure and conclusions of the parties

(i). declare that Decision No 317/83/A of the Secretary-General of the Economic and Social Committee of 1 July 1983 is void in so far as the applicant is still designated therein as a secretarial assistant, but without calling in question the validity of the transfer itself;

(ii). declare that the Economic and Social Committee must adopt the measures needed to regularize her situation, namely by specifying that the applicant is an administrative assistant in Career Bracket B 4/B 5 in the normal B stream;

(iii). declare void Decision No 306/83/A of 1 July 1983 amending the detailed list of posts;

(iv). order the verification, by hearing oral testimony, of a number of facts relating to the assignment of the applicant to the Records Department;

(v). order the defendant to submit a number of documents, in particular those relating to the problems posed by careers in the normal B stream and the secretarial B stream;

(vi). order the Economic and Social Committee to pay the costs.

(i). dismiss the application as unfounded;

(ii). order the applicant to pay the costs.

III —. Submissions and arguments of the parties

A —. Admissibility

1. Action against an internal measure which may not be contested

(a). According to the defendant, the applicant is in fact calling in question the detailed list of posts and the amendment thereof, in so far as she claims that the contested decision should be rectified and that she should be appointed an administrative assistant (in a normal B post), which she has never been and which was impossible under the budget.

(b). The applicant points out that she is asking only for her position to be regularized, that is to say, for a transfer to a normal B post as an administrative assistant, and she states that she is indeed contesting the amendment of the detailed list of posts on the grounds set out below.

2. Lack of an interest in bringing an action

(a). In the opinion of the Economic and Social Committee, the applicant has no interest in bringing an action; she has always been a secretarial assistant (occupying a secretarial B post), she could be transferred in that capacity to the Mail/Records/Library/Documentation Department and she was not entitled to a normal B post. Moreover, her rights to promotion in the normal B stream are not affected by the contested decision, since it is still open to the applicant in the course of her career to apply for any vacancy which may arise in that stream.

(b). The applicant maintains, on the contrary, that her interests were adversely affected since she was eligible for appointment to a normal B post as an administrative assistant, that the reserve list on which she was placed, for future recruitment in the normal B stream, is not of indefinite duration, that it will be possible to assess her only in her capacity as a secretarial assistant and that her career will not develop smoothly in the normal B stream. According to the Court of Justice, an official is entitled to know in advance the significance of the factors which may influence his career.

3. Delay in instituting proceedings

(a). Finally, according to the Economic and Social Committee, the application is out of time since the applicant, who was placed at the disposal of the Mail /Records /Library /Documentation Department with effect from 11 March 1982, never raised any objections to the effect that her duties did not correspond to her grade until she lodged a complaint on 18 July 1983.

(b). The applicant maintains that she was under no obligation to lodge a complaint against a preliminary, transitional measure which, as such, did not adversely affect her.

B —. Substance

1. The first submission is concerned with the alleged infringement of (i) the Decision of the Bureau of 28 April 1964 and Decision No 657/74/A of the Economic and Social Committee of 27 March 1974 describing the duties and powers attaching to each post and, (ii) the second subparagraph of Article 5 (4) of the Staff Regulations.

2. The second submission is concerned with the alleged disregard of Vacancy Notice No 31/76 of 14 April 1976, which described the duties attaching to the post of administrative assistant in the Mail/Records/Library/Documentation Department.

3. The third submission is concerned with the alleged disregard of the organizational plan for 1983.

4. The fourth submission, put forward in the alternative, is concerned with the alleged infringement of Article 7 (1) of the Staff Regulations, which provides that each official is to be assigned to a post in his category or service which corresponds to his grade.

5. The fifth submission (first pleaded in the reply) is concerned with the alleged infringement of Article 25 of the Staff Regulations

6. In her sixth submission (first pleaded in the reply) the applicant contends that the Secretary-General lacks the power to amend the detailed list of posts.

7. The seventh submission (first pleaded in the reply) is concerned with an alleged misuse of powers vitiating all the aforesaid decisions relating to the amendment of the detailed list of posts, Mrs Barbesta's secondment and the applicant's transfer.

IV —. Replies given by the parties to a question from the Court

(a). Since the decision in question was adopted on 24 May 1984 and not on 1 July 1983, the date on which Decision No 317/83/A was adopted, the applicant considers that, in view of her interpretation of the lack of interpenetrability [sic] between the normal B and the secretarial B streams, the minimum qualifying period for her promotion did not start to run until 24 May 1984, instead of 1 July 1983.

(b). The decision of 24 May 1984 contains an ambiguity which the applicant has sought to remove by submitting a request to the appointing authority on 20 July 1984 which has so far failed to evoke any response (Annex I).

V —. Oral procedure

1. By an application lodged at the Court Registry on 11 January 1984, Marie-Reine Hansen, née Meyer, an official at the Economic and Social Committee, brought an action for:

2. An examination of Section A of Annex I to the Staff Regulations, which sets out the basic posts and career brackets in each category and in the language service, reveals that Career Brackets B 2/B 3 and B 4/B 5 contain three types of post, namely administrative assistant, technical assistant and secretarial assistant. Those types of post correspond to three different streams within Category B: the normal B stream, which is for officials qualified to carry out administrative and office work; the secretarial B stream, which is for officials involved essentially in secretarial work and typing; and finally the technical B stream, which is for officials engaged upon work of a technical nature.

3. It is common ground that the above distinction has no effect with regard to the financial position of those concerned or their status under the Staff Regulations. However, the career prospects of officials in the normal B stream are better since they have more opportunities for advancement from Career Bracket B 4/B 5 to Career Bracket B 2/B 3 and only they can apply for promotion to Grade B 1.

4. Mrs Hansen, who entered the service of the Economic and Social Committee as a typist in Grade C 5 on 4 June 1968, was assigned on 11 November 1969, as a secretary, to Division B. From 1 June 1973 to 1 November 1978 she was assigned, as a secretary, to the Mail/Records/Library/Documentation Department. In 1978 she was appointed a principal secretary in Directorate A and advanced to grade C 1. She successfully took part in Competition No B/25/74, organized in order to constitute a reserve of administrative assistants (normal B posts). In the absence of a normal B vacancy, however, she applied on 18 December 1979 for a post of secretarial assistant (a secretarial B post) in the secretariat of Directorate A. She was appointed to that post with effect from 1 February 1980.

5. By a decision of 11 March 1982, which was adopted at the applicant's request, she was placed at the disposal of the Mail/Records/Library/Documentation Department.

6. In order to bring the list of posts as closely as possible into line with the existing state of affairs, and having regard to Mrs Hansen's request for a permanent transfer to that department, the Secretary-General adopted two decisions on 1 July 1983:

7. It is those two decisions which are the subject-matter of these proceedings, the second decision only in so far as it maintains Mrs Hansen's designation as a secretarial assistant. The transfer itself is not contested.

8. Finally, in a decision of 24 May 1984, which was referred to by the Economic and Social Committee for the first time in its rejoinder, the Secretary-General took account of the fact that the Economic and Social Committee's budget for 1984 made it possible to allocate a new normal B 5/B 4 post to the Mail/Records/Library/Documentation Department and proceeded to appoint Mrs Hansen to that post as an administrative assistant, that is to say she was appointed to a normal B post.

9. After the adoption of the aforesaid decision of 24 May 1984, appointing her to a normal B post as an administrative assistant, the applicant maintained, both in her reply to a written question put to her by the Court and at the hearing, that she still had an interest in continuing the proceedings since that decision did not satisfy her claim in full for two reasons:

10. The Economic and Social Committee, which did not reply in writing to the question put to it by the Court, stated at the hearing that, in the first place, in accordance with the provisions of the Staff Regulations as consistently applied by the Economic and Social Committee, seniority acquired in a secretarial B post was taken into account in full with regard to further advancement in the normal B stream; secondly, the problem of competition between the applicant and officials in the secretarial B stream no longer arose, since she was in the normal B stream and officials classified in the secretarial B stream would have to pass a competition in order to be assigned to a normal B post. The applicant was therefore in the same position as all other officials in the normal B stream at the Economic and Social Committee.

11. The Court considers it appropriate to take formal note of those statements and to declare that, as a result of the adoption of the decision of 24 May 1984, the applicant's claim has been satisfied in full. In those circumstances the claim for a declaration that Decision No 317/83/A of 1 July 1983 is void has become devoid of purpose.

12. It follows that the claim for a declaration that Decision No 306/83/A of 1 July 1983 amending, the detailed list of posts is void, which was put forward solely in order to obtain a declaration that Decision No 317/83/A is void, has also become devoid of purpose. The same is true of the claim for a declaration that the Economic and Social Committee must adopt the measures needed to regularize the applicant's situation.

13. Under Article 69 (5) of the Rules of Procedure, where it is not necessary to rule on a claim the costs are to be at the discretion of the Court.

14. It must be noted that the Economic and Social Committee did not reply in writing to the question put to it by the Court in order to ascertain whether the applicant still had an interest in continuing the proceedings after the adoption of the decision of 24 May 1984. The defendant answered that question only during the oral procedure. Since the applicant therefore remained uncertain whether she had an interest in continuing the proceedings, it is appropriate in the circumstances of this case to order the Economic and Social Committee to pay the costs.

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

1 Declares that it is unnecessary to give a decision on the claims set out in Mrs Hansen's application;

2 Orders the Economic and Social Committee to pay the costs.