61982C0299
OPINION OF MR ADVOCATE GENERAL MANCINI
DELIVERED ON 6 OCTOBER 1983 (
1
)
Mr President,
Members of the Court,
1.
The application of 1 December 1982 with which the present case was begun concerns a request for promotion to Grade A 2 made to the Commission of the European Communities by Horst W. Steinfort, an official thereof.
Let me summarize the facts. The applicant entered employment with the Commission on 27 March 1961 as a Principal Administrator in Grade A 4. From 9 September 1964 to 5 July 1967 he was seconded to perform the duties of Chef de Cabinet to Mr Margulies, a member of the Commission of the EAEC, for which he held a post in Grade A 2. At the end of the secondment he worked for the EAEC Directorate-General for Research and since 1968 when he was promoted to Grade A 3 he has worked in Directorate-General XIII, Information Market and Innovation.
By letter dated 18 February 1982 Mr Steinfort requested the President of the Commission to be promoted to Grade A 2. He based his request on the Commission's decision relating to the “Reinstatement on promotion of officials seconded to a Member's Office”, adopted on 28 July 1981 (Doc. COM(81) Min. 615). More precisly the applicant referred to paragraph 1 thereof which provides: “Les fonctionnaires de la catégorie A qui sont promus à un poste d'une carrière différente pendant la période de détachement dans un Cabinet réintégreront leur service où la promotion leur est assurée dans un certain délai: promotion vers le grade A 1, A 2 ou A3: 3 mois; promotion vers le grade A 5: à la fin du mandat actuel de la Commission”. (
2
)
According to the applicant that paragraph confirmed the practice on the basis of which former Chefs de Cabinet on completion of their term of secondment were promoted to a grade at least at the level of the duties they performed for the member of the Commission.
When he received no answer to his request the applicant submitted an administrative complaint against the implied decision of rejection (24 June 1982). On 9 November 1982 the appointing authority rejected the complaint. It said that the paragraph on which the applicant relied had an aim quite different from the one he attributed to it. It was intended to prescribe the periods within which officials promoted while on secondment to a member's office must return to their respective departments.
2.
Let us consider the applicant's case. As I have said, he considers that the said decision gives former Chefs de Cabinet a right to promotion at the end of their period of secondment and also fixes the period within which the institution must make the promotion. Its wording and especially the phrase “où la promotion leur est assurée” support his view. The refusal to promote him is therefore unlawful because: (a) it breaches the principle of the protection of legitimate expectation; (b) it is discriminatory treatment vis-à-vis other officials seconded to cabinets; and (c) it amounts to a misuse of powers.
That interpretation is, however, entirely without foundation. As the defendant institution observes, the decision of 28 July 1981 was intended to amend a previous decision adopted by the Commission on 20 June 1979, also relating to the reinstatement after promotion of officials seconded to a member's office. The new measure is intended mainly to reduce the periods allowed in the previous decision for posting to the new department. The maximum period of three months which it fixed in the case of promotion to A 1, A 2 and A 3 is thus intended to reconcile two important requirements: to fill high managerial posts speedily and to allow member's offices to reorganize and to select new staff.
The discussion which preceded the decision (Doc. PERS (81) 171) and, if properly considered, the wording of the decision itself confirm the Commission's view. It is obviously badly drafted (and the phrase cited by the applicant, which is so incomprehensible as to lead to a suspicion of a misprint, demonstrates it per tabulas). But the interpretation attributed to it by Mr Steinfort to the effect that an official promoted while on secondment should, once he is reinstated in his department, obtain a “second” promotion of which “he is assured” by the institution, is absurd and in patent contradiction with the Staff Regulations. If it is read less hastily it will be perceived that there is a definite connection between the words “dans un certain délai” and “réintégreront leur service”; it follows that the period of three months can mean only the period within which the official must take up his new post. In any event it is clear that the wording in question expressly covers the case of an official of Category A promoted while on secondment to a member's office. As we know, Mr Steinfort was promoted subsequently; he could therefore obtain no advantage from the decision even if his interpretation were correct.
3.
Consequently the decision of 28 July 1981 gives an official seconded to a member's office neither an expectation nor, even less, a right of promotion. Moreover, as the Court has several times stressed, such a right would be alien to the rules of the Community civil service since promotion depends on the discretion of the appointing authority.
It follows that none of the applicant's submissions is well-founded. Since the decision contains no promise of promotion, it is not possible to say that the principle of legitimate expectation has been infringed. Furthermore, the complaint of discriminatory treatment in relation to officials seconded to members' offices has no basis; any promotion which they may have obtained does not contradict the principle of equality in career progress (Article 5 (3) of the Staff Regulations) at least in so far as the appointing authority has observed the Staff Regulations in making the promotion. Finally the allegation of misuse of powers is gratuitous. Neither the file nor the oral proceedings has revealed any factor indicating that the refusal to promote him was a disguised sanction or the result of animosity towards Mr Steinfort.
4.
For all the reasons which I have put forward above my opinion is that the application made on 1 December 1982 by Horst W. Steinfort against the Commission should be dismissed. As to costs, I think that in accordance with Article 70 of the Rules of Procedure the parties should bear their own costs.
(
1
)	Translated from the Italian.
(
2
)	Tramlalor's note: the English language version reads: “‘A’ officials promoted to another career bracket during a period of secondment to a Member's Office shall rejoin the departments in which promotion is accorded them within 3 months in the case of promotion to A 1, A 2 or A 3 or at the end of the Commission's term of office in the case of promotion to A 5.”