61976CJ0005(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 5/76
HEINZ GUNTHER JANSCH, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 23 RUE DES CIGALES, LUXEMBOURG, REPRESENTED BY MARCEL SLUSNY, ADVOCATE, OF THE COUR D ' APPEL, BRUSSELS, 272 AVENUE BRUGMANN, 1180 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ADDRESS OF MR JANSCH,
APPLICANT,
V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOSEPH GRIESMAR, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, B III, CENTRE EUROPEEN, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF THE ' PROCEDURES TO BE IMPLEMENTED PRIOR TO DECISIONS ON THE TRANSFER FROM CATEGORY B TO CATEGORY A OF OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES ', ADOPTED BY THE COMMISSION IN DECEMBER 1974, OF THE DECISIONS TAKEN BY THE COMMISSION IN IMPLEMENTATION OF THOSE PROCEDURES AND, SO FAR AS NECESSARY, OF ARTICLE 92 OF THE STAFF REGULATIONS,
Grounds
1 THE ACTION, BROUGHT ON 16 JANUARY 1976, IS ON THE ONE HAND FOR THE ANNULMENT OF ' PROCEDURES TO BE IMPLEMENTED PRIOR TO DECISIONS ON THE TRANSFER FROM CATEGORY B TO CATEGORY A OF OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES '
WHICH THE COMMISSION ADOPTED UNDER THE SECOND PARAGRAPH OF ARTICLE 98 OF THE STAFF REGULATIONS AND FOR THE ANNULMENT OF THE REFUSAL BY THE COMMISSION TO GIVE THE APPLICANT THE BENEFIT OF THOSE ' PROCEDURES '
AND, ON THE OTHER HAND, FOR A DECLARATION THAT ARTICLE 92 OF THE STAFF REGULATIONS IS INVALID OR AT ALL EVENTS INAPPLICABLE TO THE APPLICANT .
2 BY A DOCUMENT LODGED ON 20 FEBRUARY 1976 THE COMMISSION APPLIED TO THE COURT IN ACCORDANCE WITH ARTICLE 91 OF THE RULES OF PROCEDURE FOR A DECISION ON A PRELIMINARY OBJECTION TO THE ADMISSIBILITY OF THE ACTION, A DECLARATION THAT THE ACTION WAS INADMISSIBLE AND AN ORDER FOR THE APPLICANT TO BEAR THE COSTS .
3 BY A JUDGMENT OF 15 JUNE 1976 (( 1976 ) ECR 1027 ) THE COURT ( SECOND CHAMBER ) DECLARED THE APPLICATION TO BE ADMISSIBLE AND ORDERED THE PROCEDURE TO CONTINUE WITH REGARD TO THE SUBSTANCE .
4 ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS REQUIRES THE ORGANIZATION OF A COMPETITION FOR THE PROMOTION OF AN OFFICIAL FROM ONE CATEGORY TO ANOTHER .
5 AN EXCEPTION TO THAT PROVISION IS PROVIDED IN THE SECOND PARAGRAPH OF ARTICLE 98 OF THE STAFF REGULATIONS IN FAVOUR OF OFFICIALS COVERED BY ARTICLE 92, THAT IS TO SAY OFFICIALS ' WHO OCCUPY POSTS IN THE FIELD OF NUCLEAR SCIENCE CALLING FOR SCIENTIFIC OR TECHNICAL QUALIFICATIONS AND WHO ARE PAID FROM APPROPRIATIONS IN THE RESEARCH AND INVESTMENT BUDGET ' .
6 THE ' PROCEDURES ', WHICH LAY DOWN CERTAIN FORMALITIES AND PROCEDURES RELATING TO SUCH A CHARGE, STATE THAT THEY APPLY ONLY TO OFFICIALS BELONGING TO THE SCIENTIFIC OR TECHNICAL SERVICES .
7 THE APPLICANT, WHO IS AN OFFICIAL IN CATEGORY B, A DOCTOR OF PHILOSOPHY ( ELECTRONICS AND ELECTRICAL ENGINNERING ) AND PAID FROM APPROPRIATIONS IN THE OPERATING BUDGET, REQUESTED HIS PROMOTION TO CATEGORY A, USING THE FORM ANNEXED TO THE ' PROCEDURES ' .
8 THAT APPLICATION WAS NOT GRANTED BY THE COMMISSION ON THE GROUND THAT THE APPLICANT DID NOT FULFIL ONE OF THE REQUISITE CONDITIONS, NAMELY BELONGING TO THE SCIENTIFIC OR TECHNICAL SERVICES .
9 THE APPLICANT CLAIMS IN THE FIRST PLACE THAT, SINCE THEY ARE RESTRICTED TO OFFICIALS ' IN THE SCIENTIFIC OR TECHNICAL SERVICES '
THE ' PROCEDURES '
ARE INCOMPATIBLE WITH ARTICLE 92 ( 1 ) OF THE STAFF REGULATIONS .
10 IT FOLLOWS HOWEVER FROM THE WORDING OF ARTICLE 92 OF THE STAFF REGULATIONS THAT OFFICIALS WHO COME UNDER TITLE VIII, WHICH INCLUDES ARTICLE 98 ON CHANGE OF CATEGORY, ARE SUCH AS FULFIL A DOUBLE CONDITION : WHO OCCUPY POSTS IN THE FIELD OF NUCLEAR SCIENCE CALLING FOR SCIENTIFIC OR TECHNICAL QUALIFICATIONS AND WHO ARE PAID FROM APPROPRIATIONS IN THE RESEARCH AND INVESTMENT BUDGET .
11 THE ' PROCEDURES '
HAVE RESPECTED THESE CRITERIA IN FIXING THE SCOPE OF THOSE PROVISIONS .
12 THAT CLAIM MUST THEREFORE BE REJECTED .
13 THE APPLICANT CLAIMS FURTHER THAT THE SECOND CLAUSE OF THE SENTENCE IN ARTICLE 92 ( 1 ) OF THE STAFF REGULATIONS INVOLVES DISCRIMINATION CONTRARY TO THE PRINCIPLE OF EQUALITY BETWEEN OFFICIALS IN THAT IT FAVOURS THOSE WHO ARE PAID FROM APPROPRIATIONS IN THE RESEARCH AND INVESTMENT BUDGET .
14 ARTICLE 174 OF THE EAEC TREATY STATES THAT ' EXPENDITURE RELATING TO THE IMPLEMENTATION OF THE COMMUNITY RESEARCH PROGRAMME '
IS INCLUDED IN THE RESEARCH AND INVESTMENT BUDGET .
15 ARTICLE 7 OF THE SAME TREATY PROVIDES THAT PROGRAMME SHALL BE DRAWN UP FOR A PERIOD OF NOT MORE THAN FIVE YEARS AND IN PRACTICE THE PERIODS ARE SHORTER .
16 THE FACT THAT A TERM IS FIXED FOR THESE PROGRAMMES CAUSES A CERTAIN INSECURITY TO THE OFFICIALS WHO ARE ASSIGNED TO THEM .
17 TO ENCOURAGE RESEARCH WORKERS TO TAKE PART IN SUCH RESEARCH PROGRAMMES IN SPITE OF THIS INSECURITY, THE STAFF REGULATIONS PROVIDE CERTAIN ADVANTAGES FOR THEM, INTER ALIA WITH REGARD TO SALARY .
18 SUCH ADVANTAGES ALSO INCLUDE THE POSSIBILITY, PROVIDED FOR BY THE SECOND PARAGRAPH OF ARTICLE 98 OF THE STAFF REGULATIONS, OF PROMOTION OF OFFICIALS COVERED BY ARTICLE 92 FROM ONE CATEGORY TO ANOTHER WITHOUT A COMPETITION .
19 IN VIEW OF THE CIRCUMSTANCES MENTIONED, NAMELY THE BUDGETARY CONSTRAINT, THE ORGANIZATION OF COMMUNITY RESEARCH AND THE POSITION OF OFFICIALS ASSIGNED TO IT, THE PROVISIONS OF ARTICLE 92 OF THE STAFF REGULATIONS ARE BASED ON OBJECTIVE CRITERIA SO THAT THERE CAN BE NO QUESTION OF A BREACH BY THAT ARTICLE OF THE PRINCIPLE OF EQUALITY BETWEEN OFFICIALS .
20 ACCORDINGLY THIS CLAIM MUST ALSO BE DISMISSED .
21 FINALLY THE APPLICANT CLAIMS THAT SINCE THE ' PROCEDURES '
ARE ' GENERAL PROVISIONS FOR GIVING EFFECT '
WITHIN THE MEANING OF ARTICLE 110 OF THE STAFF REGULATIONS THEY OUGHT NOT TO HAVE BEEN ADOPTED EXCEPT AFTER CONSULTATION WITH THE STAFF REGULATIONS COMMITTEE .
22 THE COMMISSION FOR ITS PART ALLEGES THAT BY REASON OF THE FACT THAT THE ' PROCEDURES '
CONCERN ONLY OFFICIALS WHO BELONG TO THE COMMISSION ALONE, SUCH PROCEDURES ARE NOT AFFECTED BY ARTICLE 110 WHICH RELATES ONLY TO PROVISIONS APPLICABLE TO OFFICIALS NO MATTER TO WHICH INSTITUTION THEY BELONG .
23 IN THIS RESPECT NO MATTER WHAT THE SCOPE OF ARTICLE 110 THIS CLAIM CANNOT USEFULLY BE RELIED ON BY THE APPLICANT SINCE EVEN AFTER CONSULTING THE STAFF REGULATIONS COMMITTEE THE COMMISSION WOULD NOT BE ABLE TO ADOPT ' PROCEDURES '
CONTRARY TO ARTICLE 92 OF THE STAFF REGULATIONS, WHICH IS IN FACT THE OBJECTIVE OF THIS CLAIM .
24 THE ACTION MUST THEREFORE BE DISMISSED .
Decision on costs
COSTS
25 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
26 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .
27 NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES SHALL BE BORNE BY SUCH INSTITUTIONS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .