61968CJ0017_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 17/68
ANDREAS REINARZ, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDENT IN DWORP ( BELGIUM ), REPRESENTED AND ASSISTED BY HENRI ROLIN AND MARCEL SLUSNY, ADVOCATES AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ANDRE ELVINGER, ADVOCATE, 84 GRAND RUE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,
Subject of the case
APPLICATION
( A ) FOR THE ANNULMENT OF THE DECISION OF 26 JUNE 1968 TERMINATING THE SERVICE OF THE APPLICANT;
( B ) FOR THE ANNULMENT, TO THE EXTENT TO WHICH IT MAY BE NECESSARY, OF THE DECISION OF 20 MARCH ALLOCATING THE APPLICANT ON A PROVISIONAL BASIS TO THE POST OF PRINCIPAL ADVISER AND OF THE DECISION OF 30 MAY 1968 NOTIFIED BY A LETTER FROM THE PRESIDENT OF THE COMMISSION DATED 31 MAY 1968, ENTERING THE APPLICANT'S NAME ON THE LIST OF OFFICIALS WHO MIGHT BE AFFECTED BY A MEASURE TERMINATING THE SERVICE OF CERTAIN OFFICIALS;
( C ) FOR A DECLARATION THAT THE APPLICANT SHALL CONTINUE TO BE PAID HIS REMUNERATION AND TO ENJOY ALL THE BENEFITS ATTACHED TO HIS POST,
Grounds
1 THE PRINCIPAL OBJECT OF THE APPLICATION IS THE ANNULMENT OF THE DECISION TERMINATING THE SERVICE OF THE APPLICANT TAKEN BY THE COMMISSION ON 26 JUNE 1968 AND A DECLARATION THAT HE SHALL CONTINUE TO BE ENTITLED TO BE PAID HIS SALARY AND TO ENJOY ALL THE BENEFITS ATTACHING TO HIS POST .
2 THE APPLICATION IN ADDITION ASKS FOR THE ANNULMENT, TO THE EXTENT TO WHICH IT MAY BE NECESSARY, OF THE DECISION OF 20 MARCH 1968 TRANSFERRING THE APPLICANT FROM HIS POST OF DIRECTOR OF THE DIRECTORATE FOR TRANSPORT RATES AND CONDITIONS TO THE POST OF PRINCIPAL ADVISER IN THIS DIRECTORATE-GENERAL AND OF THE DECISION OF 30 MAY 1968 WHEREBY THE COMMISSION PROPOSED TO ADOPT A FINAL MEASURE FOR TERMINATING THE SERVICE OF VARIOUS SERVANTS INCLUDING THE APPLICANT .
3 FINALLY, DURING THE ORAL PROCEDURE THE APPLICANT OFFERED TO ADDUCE EVIDENCE AND ASKED FOR AN AWARD OF DAMAGES THE AMOUNT WHEREOF SHOULD BE DETERMINED BY THE COURT IN THE EVENT OF " HIS RE-INSTATEMENT AS DIRECTOR BEING REGARDED AS MEETING WITH INSUPERABLE OBSTACLES ".
ADMISSIBILITY
4 THE DEFENDANT REGARDS THE APPLICATION AS INADMISSIBLE IN SO FAR AS IT REFERS TO THE MEASURES OF 20 MARCH AND 30 MAY 1968 WHICH IT SUBMITS ARE NOT DECISIONS ADVERSELY AFFECTING AN OFFICIAL WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS .
5 THE DECISION OF 20 MARCH 1968 CONSTITUTES A TRANSFER . ALTHOUGH SUCH A MEASURE FALLS IN PRINCIPLE WITHIN THE DISCRETIONARY POWER OF THE ADMINISTRATION TO ORGANIZE ITS DEPARTMENTS, IT MAY HOWEVER IN CERTAIN CIRCUMSTANCES AMOUNT TO A MEASURE ADVERSELY AFFECTING AN OFFICIAL .
6 TO THAT EXTENT THE APPLICATION IS ADMISSIBLE .
7 DURING ITS MEETING ON 30 MAY 1968 THE COMMISSION CONSIDERED THE ADOPTION OF A MEASURE TERMINATING THE SERVICE OF VARIOUS OFFICIALS IN GRADES A1 AND A2 INCLUDING THE APPLICANT AND INSTRUCTED THE PRESIDENT TO INFORM THE OFFICIALS CONCERNED SO THAT THEY COULD SUBMIT ANY COMMENTS THEY WISHED TO MAKE BEFORE THE COMMISSION MADE ITS FINAL DECISION .
8 HAVING REGARD TO THE FACT THAT INCLUSION IN THE LIST PROVIDED FOR BY ARTICLE 4 OF REGULATION NO 259/68 IS NOT REQUIRED FOR OFFICIALS OF GRADES A1 AND A2, THIS RESOLUTION WAS ONLY A DECLARATION OF INTENT WHICH CAN HAVE NO LEGAL EFFECT BUT WHICH WAS INTENDED TO BE AND HAS IN FACT BEEN THE SUBJECT OF A NEW RESOLUTION .
9 TO THAT EXTENT THE APPLICATION IS THEREFORE INADMISSIBLE .
10 HOWEVER, THE APPLICANT TAKES THE VIEW THAT THIS DECISION AS WELL AS THE ONE ADOPTED ON 20 MARCH FORMS PART OF A WHOLE SERIES OF MEASURES WHICH AMOUNT TO AN ABUSE OR MISUSE OF POWERS AND THAT THE COMPLAINTS MADE ARISING OUT OF THEM MUST IN ANY EVENT BE EXAMINED IN CONNEXION WITH THE PRINCIPAL CLAIM .
THE SUBSTANCE
A - THE LEGALITY OF THE CONTESTED DECISIONS
11 IN THE VIEW OF THE APPLICANT THE CONTESTED DECISIONS MUST BE ANNULLED BECAUSE THEY WERE TAKEN WITHOUT ANY PRIOR CONSIDERATION OF THE COMPARATIVE MERITS AND OF THE DIFFERENT SITUATIONS OF THE OFFICIALS LIKELY TO BE AFFECTED BY A MEASURE TERMINATING THE SERVICE OF OFFICIALS AND IN ANY EVENT BECAUSE, IF THIS CONSIDERATION DID TAKE PLACE, IT WAS NOT PRECEDED BY PERUSAL OF THE PERSONAL FILE OF EACH OFFICIAL .
12 UNDER ARTICLE 50 OF THE STAFF REGULATIONS AN OFFICIAL HOLDING A POST IN GRADE A1 OR A2 MAY BE RETIRED IN THE INTEREST OF THE SERVICE . FURTHER, IT IS CLEAR FROM THIS PROVISION THAT REASONS DO NOT HAVE TO BE GIVEN FOR SUCH DECISIONS .
13 ON THE OTHER HAND ARTICLE 4(2 ) OF REGULATION NO 259/68 PROVIDES THAT IF THE COMMISSION INTENDS TO TAKE MEASURES TERMINATING THE SERVICE OF OFFICIALS OF GRADES OTHER THAN A1 AND A2 IT SHALL DRAW UP A LIST OF THE OFFICIALS TO BE AFFECTED BY SUCH MEASURES, AFTER CONSULTING THE JOINT COMMITTEE, AND TAKING INTO ACCOUNT THE OFFICIALS' ABILITY, EFFICIENCY, CONDUCT IN THE SERVICE, FAMILY CIRCUMSTANCES AND SENIORITY .
14 IF THESE TWO ARTICLES ARE READ TOGETHER IT IS CLEAR THAT THE COMMISSION ENJOYS A WIDE MEASURE OF DISCRETIONARY POWER WHEN DEALING WITH OFFICIALS OF GRADES A1 AND A2 .
15 SUCH A DISCRETIONARY POWER PRESUPPOSES CONSIDERABLE FREEDOM OF DECISION AND AT THE SAME TIME A SCRUPULOUS EXAMINATION OF THE FACTS OF EACH CASE .
16 THE LATTER CONSIDERATION IS NECESSARY AS A GUARANTEE THAT THE SAID DISCRETION SHALL BE EXERCISED WITH FULL KNOWLEDGE OF EACH CASE .
17 IN THE PRESENT CASE THIS REQUIREMENT IMPLIED THE CONSIDERATION OF THE COMPARATIVE QUALIFICATIONS AND SITUATIONS OF THE OFFICIALS WHOSE RETIREMENT FROM OR RETENTION IN THE SERVICE HAD TO BE CONSIDERED .
18 IT FOLLOWS FROM THE SCHEDULE TO DOCUMENT G ( 68 ) 175 A1 OF 24 JUNE 1968 THAT AT ITS MEETING OF 20 MARCH 1968 THE COMMISSION INTENDED TO DRAW UP A PROVISIONAL LIST OF OFFICIALS OF GRADES A1 AND A2 LIKELY TO BE AFFECTED DURING THE FOLLOWING WEEKS BY A MEASURE TERMINATING THE SERVICE OF OFFICIALS .
19 THE LETTER SENT TO THE DIRECTOR-GENERAL FOR TRANSPORT ON 22 MARCH 1968 BY THE MEMBER OF THE COMMISSION RESPONSIBLE FOR THIS DIRECTORATE-GENERAL SHOWS THAT WHEN THE COMMISSION DISCUSSED THIS MATTER ON 20 MARCH IT WAS UNAWARE THAT THE APPLICANT NO LONGER INTENDED, AS HE HAD PREVIOUSLY STATED, TO RETIRE FROM THE SERVICE VOLUNTARILY AND HAD DULY INFORMED HIS SUPERIOR OF HIS CHANGE OF MIND .
20 AS A RESULT THEREFORE OF A MISTAKE OF FACT HE WAS NOT INCLUDED IN THE EXAMINATION OF THE COMPARATIVE QUALIFICATIONS AND SITUATIONS OF THE OFFICIALS AFFECTED WHICH THE COMMISSION CARRIED OUT .
21 IN FACT, THE COMMISSION, CONVINCED THAT THE APPLICANT STILL WISHED TO LEAVE THE SERVICE, CONSIDERED THAT IT WAS RELEASED FROM THE NECESSITY OF MAKING A DIFFICULT CHOICE AND ASSIGNED THE THREE REMAINING POSTS TO THE OTHER DIRECTORS WHO HAD PREVIOUSLY BEEN PERFORMING THESE DUTIES .
22 AS A RESULT THE COMMISSION REMOVED THE APPLICANT FROM HIS POST OF DIRECTOR AND TRANSFERRED HIM TO A POST AS PRINCIPAL ADVISER BUT MADE IT CLEAR THAT THE DECISION WAS PROVISIONAL UNTIL SUCH TIME AS A FINAL MEASURE COULD BE TAKEN IN HIS CASE PURSUANT TO THE NEW PROVISIONS OF THE STAFF REGULATIONS, WHICH WOULD TAKE ACCOUNT OF THE REQUESTS MADE BY OFFICIALS WHO, ON THEIR OWN INITIATIVE, HAD ASKED FOR THE TERMINATION OF THEIR SERVICE .
23 THE COMMISSION THEREFORE TOOK THIS DECISION WITHOUT HAVING BEEN ABLE TO TAKE ACCOUNT OF ONE PIECE OF INFORMATION WHICH WAS VITAL FOR THE FULL EXERCISE OF ITS DISCRETIONARY POWERS .
24 IT IS TRUE THAT DURING ITS MEETINGS OF 30 MAY AND 26 JUNE 1968 THE COMMISSION RE-EXAMINED THE APPLICANT'S CASE .
25 ON THESE TWO DATES IT WAS AWARE OF THE FACT THAT HE HAD CHANGED HIS MIND AND IT HAD ALSO TAKEN NOTE OF THE OBSERVATIONS CONTAINED IN THE LETTER OF 14 APRIL 1968 AND - BEFORE MAKING A FINAL DECISION - OF THOSE CONTAINED IN HIS LETTER OF 19 JUNE 1968 .
26 THE DECISION OF 26 JUNE 1968 WAS TAKEN, AS THE MINUTES CONFIRM, AFTER A RE-EXAMINATION OF ALL THE PERSONAL FILES .
27 HOWEVER, THE FACTS OF THIS CASE MAKE IT CLEAR THAT THE PERSONAL FILES EXAMINED WERE THOSE OF ALL THE OFFICIALS WHOSE FUTURE IN THE SERVICE WAS STILL IN DOUBT AND THAT THE DECISIONS TAKEN ON 20 MARCH WITH REGARD TO THE ALLOCATION OF POSTS WERE NOT CALLED IN QUESTION SO FAR AS THE DIRECTORATE FOR TRANSPORT WAS CONCERNED .
28 IT WAS ONLY TO THIS EXTENT THAT THE APPLICANT'S CASE WAS COMPARED WITH THOSE OF OTHER SERVANTS . HOWEVER, BECAUSE OF THE ABOLITION IN THE MEANTIME IN THE 1968 BUDGET OF THE POST OF PRINCIPAL ADVISER IN THE DIRECTORATE-GENERAL FOR TRANSPORT AND HAVING REGARD TO THE APPLICANT'S HIGHLY SPECIALIZED TRAINING, THIS LIMITED COMPARATIVE EXAMINATION MADE IT VIRTUALLY IMPOSSIBLE FOR HIM TO BE EXCLUDED FROM A MEASURE TERMINATING THE SERVICE OF OFFICIALS .
29 FURTHER, THE APPLICANT SUBMITS THAT ONE OF THE FOUR DIRECTORS INVOLVED WAS TO REACH THE RETIREMENT AGE IN SEPTEMBER 1968 AND WAS DUE TO RETIRE AT THAT TIME .
30 IN SPITE OF THIS THE COMMISSION PASSED OVER THE APPLICANT AND ON 20 MARCH 1968 GAVE THIS DIRECTOR ONE OF THE THREE REMAINING DIRECTORATES AND LATER CONFIRMED THIS POSTING WITH THE INTENTION OF ALLOCATING THE POST AFTERWARDS TO AN OFFICIAL OF THE SAME NATIONALITY .
31 THE APPLICANT REGARDS THIS PROCEDURE AS AN INFRINGEMENT OF ARTICLES 7 AND 27 OF THE STAFF REGULATIONS .
32 THE DEFENDANT " DOES NOT CONCEAL THE FACT THAT CONSIDERATIONS RELATING TO ITS CONCERN TO UPHOLD THE PRINCIPLE OF GEOGRAPHICAL BALANCE AT THE LEVEL OF THE POST OF DIRECTOR IN THE DIRECTORATE-GENERAL FOR TRANSPORT MIGHT LEGITIMATELY HAVE ARISEN WHICH MADE IT UNDESIRABLE TO REMOVE MR NOEEL MAYER FROM THE STAFF IN PREFERENCE TO MR REINARZ AND TO DESIGNATE THE LATTER AS THE SUCCESSOR TO MR NOEEL MAYER ".
33 MOREOVER THE BEFORE-MENTIONED LETTER OF 22 MARCH 1968 MAKES IT CLEAR THAT THE ALLOCATION OF POSTS EFFECTED BY THE COMMISSION ON 20 MARCH IN THE VIEW OF THE COMMISSION TOOK ACCOUNT OF THIS CONCERN .
34 IT IS CLEAR FROM ARTICLE 7 OF THE STAFF REGULATIONS READ TOGETHER WITH ARTICLE 27 THEREOF THAT WHEN THE COMMISSION RECRUITS, PROMOTES AND ASSIGNS ITS SERVANTS TO POSTS IT MUST BE GUIDED ON THE ONE HAND BY THE INTERESTS OF THE SERVICE WITHOUT REGARD TO NATIONALITY AND ON THE OTHER HAND MUST ENSURE THAT THEY ARE RECRUITED ON THE WIDEST POSSIBLE GEOGRAPHICAL BASIS FROM AMONG NATIONALS OF THE MEMBER STATES OF THE COMMUNITIES .
35 THE COMMISSION RECONCILES THESE REQUIREMENTS WHEN, IN THOSE CASES WHERE THE QUALIFICATIONS OF THE VARIOUS CANDIDATES ARE SUBSTANTIALLY THE SAME, IT MAKES NATIONALITY THE OVERRIDING CRITERION IN ORDER TO MAINTAIN OR RE-ESTABLISH A GEOGRAPHICAL BALANCE AMONG ITS STAFF .
36 IN CARRYING OUT ITS TASK OF RATIONALIZING THE ADMINISTRATION, WHICH IT WAS UNDER A DUTY TO DO BY VIRTUE OF ANNEX I TO THE MERGER TREATY, IT HAD TO TAKE INTO ACCOUNT THE SAME REQUIREMENTS .
37 HOWEVER, THE FULFILMENT OF THE OBLIGATION TO SECURE THE RECRUITMENT OF OFFICIALS ON THE BROADEST POSSIBLE GEOGRAPHICAL BASIS MUST NOT BE LIMITED TO A SMALL NUMBER OF POSTS WITHIN A SINGLE DIRECTORATE-GENERAL .
38 FURTHER, THE THIRD PARAGRAPH OF ARTICLE 27 OF THE STAFF REGULATIONS EXPRESSLY PROHIBITS THE RESERVATION OF POSTS FOR NATIONALS OF ANY SPECIFIC MEMBER STATE .
39 THE FACTS IN THE PRESENT CASE SHOW THAT A DIRECTOR WAS KEPT IN HIS POST, EVEN THOUGH HE WAS NEAR THE END OF HIS CAREER, MAINLY TO FACILITATE HIS REPLACEMENT AT A LATER DATE BY A SERVANT OF THE SAME NATIONALITY .
40 MOREOVER THE RATIONALIZATION MEASURES WHICH THE COMMISSION WAS REQUIRED TO TAKE CONSISTED MAINLY IN EFFECTING CONSIDERABLE REDUCTIONS OF THE NUMBER OF SERVANTS IN PARTICULAR THOSE OF THE SAME GRADE AS THE APPLICANT .
41 THE DISMISSAL IN SUCH CIRCUMSTANCES OF OFFICIALS IN THE SERVICE, ON THE GROUND THAT THEY ARE REDUNDANT, WHEN THEIR RETIREMENT FROM THE SERVICE RESULTS SOON AFTERWARDS IN THE PROMOTION OF SERVANTS OF A LOWER GRADE TO THE POSTS WHICH THEY HELD, CANNOT BE ACCEPTED IN PRINCIPLE .
42 OTHERWISE THE PRINCIPLE THAT PROPER REGARD SHOULD BE HAD FOR THE CAREER PROSPECTS OF OFFICIALS WOULD BE CALLED IN QUESTION WITHOUT THIS BEING ABSOLUTELY NECESSARY, AND IN THE SPECIAL CONDITIONS APPLICABLE TO THE TASK IMPOSED BY THE MERGER TREATY COMPLIANCE WITH THIS PRINCIPLE HAD TO TAKE PRECEDENCE OVER THE CONSIDERATIONS RELATING TO THE COMPOSITION OF THE STAFF OF THE COMMUNITIES ON A MAINLY GEOGRAPHICAL BASIS .
43 THE COMPLAINTS THAT THERE WAS NO CONSIDERATION OF COMPARATIVE MERITS AND THAT ARTICLES 7 AND 27 OF THE STAFF REGULATIONS WERE INFRINGED OR AT LEAST WRONGLY APPLIED THEREFORE APPEAR TO BE WELL FOUNDED . THE DECISIONS OF 20 MARCH AND 26 JUNE 1968 MUST THEREFORE BE ANNULLED .
44 IT IS THEREFORE UNNECESSARY TO EXAMINE THE APPLICANT'S OTHER COMPLAINTS AGAINST THE CONTESTED DECISIONS .
B - THE REMAINDER OF THE CLAIM
45 THE APPLICANT ASKS THE COURT TO DECLARE THAT HE SHALL CONTINUE TO BE ENTITLED TO RECEIVE HIS SALARY AND ENJOY ALL THE BENEFITS ATTACHING TO HIS POST .
46 DURING THE ORAL PROCEDURE THE APPLICANT CLAIMED IN THE ALTERNATIVE AN AWARD OF DAMAGES SHOULD HIS RE-INSTATEMENT MEET WITH INSUPERABLE OBSTACLES .
47 UNDER ARTICLE 19 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY AND ARTICLE 38 OF THE RULES OF PROCEDURE THE SUBJECT-MATTER OF THE DISPUTE AND THE FORM OF ORDER SOUGHT MUST BE CONTAINED IN THE APPLICATION AND THIS EXCLUDES THE ADDITION OF NEW CLAIMS DURING THE PROCEEDINGS .
48 THE CLAIM FOR DAMAGES MADE FOR THE FIRST TIME DURING THE ORAL PROCEDURE MUST THEREFORE BE CONSIDERED AS OUT OF TIME AND CONSEQUENTLY INADMISSIBLE .
49 MOREOVER IT IS FOR THE COMMISSION BY VIRTUE OF ARTICLE 176 OF THE TREATY TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT OF JUSTICE .
50 IT IS THEREFORE UNNECESSARY TO DECIDE UPON THE CLAIM FOR A DECLARATION OR UPON THE CLAIM FOR DAMAGES .
Decision on costs
51 UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
52 AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST THEREFORE BE ORDERED TO PAY THE COSTS .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLES 173 AND 179;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ESPECIALLY ARTICLES 7, 27, 29, 90 AND 91;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,
Operative part
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE TO THE EXTENT TO WHICH IT SEEKS THE ANNULMENT OF THE DECISION OF 30 MAY 1968;
2 . ANNULS THE DECISION OF 20 MARCH 1968 ASSIGNING THE APPLICANT TO THE POST OF PRINCIPAL ADVISER AND THE DECISION OF 26 JUNE 1968 TERMINATING HIS SERVICE;
3 . DECLARES THAT IT IS UNNECESSARY TO DECIDE UPON THE REMAINDER OF THE CLAIM;
4 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE COSTS .