61973CJ0189_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 189/73
GIJSBERTUS VAN REENEN, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MARCEL SLUSNY, ADVOCATE, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MRS ANDLAUER, CENTRE EUROPEEN, PLATEAU DU KIRCHBERG, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOSEPH GRIESMAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, PIERRE LAMOUREUX, 4 BOULEVARD ROYAL, DEFENDANT,
Subject of the case
APPLICATION PRINCIPALLY FOR RECOGNITION OF THE APPLICANT'S RIGHT TO BE CLASSIFIED IN CAREER BRACKET A5-A4 AND FOR A RULING THAT THE COMMISSION WRONGFULLY AND NEGLIGENTLY OMITTED TO TAKE THE MEASURES NECESSARY TO ENSURE THIS CLASSIFICATION,
Grounds
1 BY APPLICATION LODGED ON 14 DECEMBER 1973 THE APPLICANT BROUGHT BEFORE THE COURT AN ACTION FOR THE ANNULMENT OF THE COMMISSION'S DECISION OF 10 SEPTEMBER 1973 REJECTING HIS REQUEST OF 4 OCTOBER 1972 THAT HE BE RECLASSIFIED IN GRADE A5 .
2 HE IS FURTHER CLAIMING THAT THE DEFENDANT SHOULD BE ORDERED TO MAKE GOOD THE DAMAGE WHICH HE SUFFERED AS A RESULT OF THE COMMISSION'S NEGLIGENT OMISSION TO TAKE THE MEASURES NECESSARY TO EFFECT SUCH RECLASSIFICATION WITH EFFECT FROM 1 FEBRUARY 1970 .
3 IN SUPPORT OF THESE TWO HEADS OF CLAIM THE APPLICANT MAINTAINS THAT UNDER CERTAIN CIRCUMSTANCES AN OFFICIAL IN A LOWER CATEGORY MAY BE ENTITLED TO DIRECT APPOINTMENT TO THE NEXT HIGHER CATEGORY WITHOUT A COMPETITION .
4 ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS EXPRESSLY STATES THAT 'AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER OR PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION '.
5 IT IS CLEAR FROM ARTICLE 29 THAT IN CONSIDERING WHETHER IT IS EXPEDIENT TO HOLD A COMPETITION THE APPOINTING AUTHORITY EXERCISES A DISCRETIONARY POWER .
6 ALTHOUGH, UNDER ARTICLE 7 ( 1 ), AN OFFICIAL CANNOT BE COMPELLED TO PERFORM DUTIES CORRESPONDING TO A GRADE HIGHER THAN HIS OWN, EXCEPT ON A PROVISIONAL BASIS, THE FACT THAT HE AGREES TO PERFORM THEM MAY BE A FACTOR TO BE BORNE IN MIND IN CONNEXION WITH PROMOTION, BUT DOES NOT GIVE HIM THE RIGHT TO BE RECLASSIFIED .
7 BY REFRAINING FROM ORGANIZING A COMPETITION REQUIRING QUALIFICATIONS CORRESPONDING TO THOSE OF THE APPLICANT, THEREBY RENDERING IT IMPOSSIBLE FOR THE LATTER TO BE APPOINTED TO CATEGORY A, THE DEFENDANT WAS NOT ACTING ULTRA VIRES .
8 SINCE THE ACTION CLEARLY LACKS ANY FOUNDATION, THERE IS NO NEED FOR THE COURT TO GIVE A RULING ON THE OBJECTION OF INADMISSIBILITY ENTERED BY THE COMMISSION .
9 THE ACTION BROUGHT BY THE APPLICANT MUST THEREFORE BE DISMISSED .
Decision on costs
10 THE APPLICANT'S ACTION HAS FAILED .
11 IN PURSUANCE OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
12 HOWEVER, IN PURSUANCE OF ARTICLE 70 OF THE RULES OF PROCEDURE, IN ACTIONS BROUGHT BY OFFICIALS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
ON THOSE GROUNDS,
Operative part
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE ACTION;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .