61968CJ0027_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 27/68
REINALDUS RENCKENS, AN OFFICIAL OF THE EUROPEAN COMMUNITIES, RESIDING AT 78 ROUTE D'ARLON, LUXEMBOURG, REPRESENTED AND ASSISTED BY JACQUES PUTZEYS, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34 RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, ASSISTED BY H . PH . VISSER 'T HOOFT, OF THE COMMISSION'S LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL,
DEFENDANT,
Subject of the case
APPLICATION FOR :
( A ) ANNULMENT OF THE DECISION OF 26 JUNE 1968 TERMINATING THE APPLICANT'S SERVICE;
( B ) ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT LODGED BY THE APPLICANT ON 15 JULY 1968 UNDER ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC AGAINST THE DECISION OF 26 JUNE 1968 AND, IN ADDITION, ANNULMENT OF THE REJECTION OF HIS APPLICATION FOR THE VACANT POST IN THE PRESS AND INFORMATION OFFICE AT THE HAGUE;
( C ) ANNULMENT OF THE EXPRESS REJECTION OF THE AFORESAID COMPLAINT CONTAINED IN THE LETTER OF 31 OCTOBER 1968 FROM THE PRESIDENT OF THE COMMISSION .
Grounds
1/2 THE APPLICATION SEEKS THE ANNULMENT OF THE DECISION OF 26 JUNE 1968 WHEREBY THE COMMISSION ADOPTED A MEASURE TERMINATING THE SERVICE OF THE APPLICANT, AND ALSO THE ANNULMENT OF THE IMPLIED DECISIONS REJECTING ( A ) HIS COMPLAINT THROUGH OFFICIAL CHANNELS AGAINST THE SAID DECISION AND ( B ) THE APPLICATION FOR THE POST OF HEAD OF THE PRESS AND INFORMATION OFFICE AT THE HAGUE WHICH HE SUBMITTED ON 14 JUNE 1968; AND, FINALLY, THE ANNULMENT OF THE EXPRESS REJECTION OF THE AFORESAID COMPLAINT BY LETTER FROM THE PRESIDENT OF THE COMMISSION DATED 31 OCTOBER 1968 . THE APPLICATION ALSO SEEKS A DECLARATION THAT THE APPLICANT HAS REMAINED AN OFFICIAL OF THE EUROPEAN COMMUNITIES AND THAT THE COMMISSION SHOULD DULY RESTORE HIM TO HIS FINANCIAL POSITION AND RIGHTS UNDER THE STAFF REGULATIONS .
A - ADMISSIBILITY
3/4 THE APPLICATION, IN SO FAR AS IT SEEKS THE ANNULMENT OF THE IMPLIED REJECTION OF THE APPLICANT'S COMPLAINT, HAS LOST ITS PURPOSE, SINCE THE COMPLAINT WAS EXPRESSLY REJECTED BY LETTER FROM THE PRESIDENT OF THE COMMISSION DATED 31 OCTOBER 1968 . THE APPLICATION IS ALSO INADMISSIBLE IN SO FAR AS IT CONCERNS THE SAID LETTER OF 31 OCTOBER 1968 WHICH DID NO MORE THAN CONFIRM THE DECISION OF 26 JUNE 1968, WHICH IS ALSO THE SUBJECT OF THE APPLICATION .
5/8 THE APPLICATION IS, MOREOVER, INADMISSIBLE IN SO FAR AS IT CONCERNS AN IMPLIED DECISION REJECTING THE APPLICATION BY THE APPLICANT FOR THE POST OF HEAD OF THE PRESS OFFICE AT THE HAGUE . NO POST HAD, IN FACT, BEEN DECLARED VACANT AT THAT DATE AND, IN THESE CIRCUMSTANCES, THE SILENCE OF THE COMMISSION COULD NOT BE REGARDED AS AN IMPLIED DECISION REJECTING THE APPLICATION . NEVERTHELESS, THE CONSIDERATIONS TO WHICH THE APPLICANT HAS DRAWN ATTENTION IN THIS CONNEXION MIGHT, IN AN APPROPRIATE CASE, REQUIRE TO BE TAKEN INTO ACCOUNT IN DECIDING UPON THE LEGALITY OF THE DECISION TERMINATING HIS SERVICE . THEY WILL THEREFORE BE EXAMINED WHEN THE OBJECTIONS WHICH HE HAS RAISED AGAINST THAT DECISION ARE CONSIDERED .
9/10 THE APPLICANT'S REQUEST THAT THE COMMISSION BE ORDERED TO RESTORE HIM TO HIS FINANCIAL POSITION AND RIGHTS UNDER THE STAFF REGULATIONS IS LIKEWISE INADMISSIBLE . IF THE DECISION WERE TO BE ANNULLED, IT WOULD BE FOR THE COMMISSION TO TAKE THE NECESSARY STEPS TO COMPLY WITH THE JUDGMENT .
11/12 THE APPLICATION FOR ANNULMENT IS ADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST THE DECISION OF 26 JUNE 1968 SINCE THE APPEAL THROUGH OFFICIAL CHANNELS OF 15 JULY 1968 WAS BROUGHT WITHIN THE PRESCRIBED PERIOD . FOR THE REST, IT IS INADMISSIBLE .
B - THE SUBSTANCE OF THE CASE
FIRST SUBMISSION
13 IN HIS FIRST SUBMISSION THE APPLICANT CHALLENGES WHAT HE BELIEVES TO BE THE LEGAL BASIS OF THE CONTESTED DECISION AND CONTENDS THAT THE COMMISSION WAS NOT COMPETENT TO TAKE THE DECISION, SINCE THE POWER DELEGATED TO IT UNDER ANNEX I TO THE MERGER TREATY OF 8 APRIL 1965 WAS CONTRARY TO THE TREATIES, IN PARTICULAR THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY .
14/18 ANNEX I TO THE MERGER TREATY SIGNED, LIKE THE TREATY ITSELF, BY THE REPRESENTATIVES OF THE MEMBER STATES, CALLS ON THE COMMISSION TO TAKE THE NECESSARY STEPS TO RATIONALIZE ITS DEPARTMENTS FOLLOWING THE MERGER OF THE EXECUTIVES AND FIXES A TIME WITHIN WHICH THIS MUST BE DONE . THE TASK THUS ASSIGNED TO THE COMMISSION DOES NOT, HOWEVER, INCORPORATE ANY EXTENSION OF THE POWERS WHICH IT ALREADY POSSESSED UNDER THE TREATIES AND THIS IS BORNE OUT BY THE STATEMENT IN THE ANNEX THAT THE TASK ASSIGNED TO IT MUST BE CARRIED OUT " WITHIN THE FRAMEWORK OF ITS RESPONSIBILITIES ". IT WAS THEREFORE THE DUTY OF THE COMMISSION TO EFFECT THE RATIONALIZATION OF ITS DEPARTMENTS WITHIN THE FRAMEWORK OF THE STAFF REGULATIONS OF OFFICIALS OF THE COMMUNITIES AS THEY WERE AT THE TIME OR AS LATER AMENDED BY THE COUNCIL, WHICH UNDER ARTICLE 24 OF THE MERGER TREATY IS ALONE COMPETENT FOR THIS PURPOSE . UNDER ARTICLE 24 IT WAS ALSO ITS DUTY, IN THIS CONNEXION, TO SUBMIT PROPOSALS TO THE COUNCIL WITH A VIEW TO THE PREPARATION OF NEW STAFF REGULATIONS . IT IS NOT DISPUTED THAT THE CONTESTED DECISION CONSTITUTES AN APPLICATION OF ARTICLE 4 OF REGULATION NO 259/68 CONCERNING THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES .
19 ANNEX I TO THE MERGER TREATY DID NOT, THEREFORE, INCORPORATE ANY DELEGATION OF POWERS WHATSOEVER AND THE CONTESTED DECISION WAS TAKEN IN IMPLEMENTATION OF THE STAFF REGULATIONS AS ADOPTED BY THE COUNCIL, WHICH IS THE COMPETENT AUTHORITY FOR THIS PURPOSE .
20 THE FIRST HEAD OF THIS SUBMISSION MUST THEREFORE BE DISMISSED .
21 THE APPLICANT GOES ON TO ARGUE THAT ARTICLE 4 OF REGULATION NO 259/68 IS ILLEGAL AND, BECAUSE IT EMBODIES AN IMPROPER DELEGATION OF LEGISLATIVE POWERS IN FAVOUR OF THE COMMISSION, CANNOT THEREFORE BE USED AS A BASIS FOR THE CONTESTED DECISION .
22/24 UNDER ARTICLE 24 OF THE MERGER TREATY IT IS INCUMBENT ON THE COUNCIL TO LAY DOWN THE STAFF REGULATIONS OF OFFICIALS OF THE COMMUNITIES . IN SO DOING IT CLEARLY HAD TO TAKE INTO ACCOUNT THE REQUIREMENTS OF THE MERGER OF THE EXECUTIVES . IT MET THESE REQUIREMENTS IN PARTICULAR BY MEANS OF THE PROVISIONS OF CHAPTER II OF REGULATION NO 259/68 ENTITLED " SPECIAL MEASURES ".
25 IN CONFERRING ON THE COMMISSION POWER TO TAKE MEASURES, IN PARTICULAR PURSUANT TO ARTICLE 4 OF REGULATION NO 259/68, TERMINATING THE SERVICE OF INDIVIDUALS CONSEQUENT UPON THE RATIONALIZATION AND THE REDUCTION OF STAFF, THE COUNCIL DID NOT DELEGATE LEGISLATIVE POWERS TO THE COMMISSION BUT ENTRUSTED IT WITH THE PRACTICAL IMPLEMENTATION OF THE RULES WHICH IT LAID DOWN IN THAT REGULATION WITHIN THE LIMITS OF ITS JURISDICTION UNDER THE TREATY .
26 THE SECOND HEAD OF THIS SUBMISSION IS UNFOUNDED .
SECOND SUBMISSION
27/28 OBJECTING THAT THE COUNCIL HAS ACTED ILLEGALLY, THE APPLICANT COMPLAINS THAT, IN REGULATION NO 259/68, IT CREATED " EMERGENCY LEGISLATION OR, MORE ACCURATELY, THE OPPORTUNITY TO DISPENSE WITH CERTAIN OFFICIALS ON THE PRETEXT OF A NON-EXISTENT RATIONALIZATION ". THE APPLICANT DOES NOT, HOWEVER, ADDUCE ANY EVIDENCE CAPABLE OF SUBSTANTIATING THIS VIEW .
29 THE SUBMISSION MUST BE REJECTED .
THIRD SUBMISSION
30 THE APPLICANT MAINTAINS THAT THE STATEMENT OF REASONS FOR THE CONTESTED MEASURES IS PURELY FORMAL, THAT IT MAKES NO REFERENCE TO FACTUAL CONSIDERATIONS WHICH MIGHT JUSTIFY THE DECISIONS AND THAT IT DOES NOT EXPLAIN HOW THE LIST OF OFFICIALS AFFECTED BY THE MEASURES OF TERMINATION OF SERVICE WAS DRAWN UP .
31/32 UNDER THE FIRST PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS OF OFFICIALS ANY DECISION ADVERSELY AFFECTING AN OFFICIAL SHALL STATE THE REASONS ON WHICH IT IS BASED . THIS REQUIREMENT IS MET IF THE REASONS ON WHICH THE MEASURE ADVERSELY AFFECTING AN OFFICIAL IS BASED ARE SHOWN CLEARLY AND UNAMBIGUOUSLY .
33/35 IN THE PRESENT CASE THE DECISION OF 26 JUNE 1968 DOES REFER TO A NUMBER OF CONSIDERATIONS, SUCH AS AGE, VOCATIONAL TRAINING, REPORTS AND FAMILY RESPONSIBILITIES, WHICH, AFTER THE POST OCCUPIED BY THE APPLICANT HAD BEEN ABOLISHED IN THE NEW DETAILED LIST OF POSTS, WERE TAKEN INTO ACCOUNT, IN ORDER TO DEMONSTRATE THE JUSTICE OF THE DECISION NOT TO RE-ASSIGN HIM TO ANOTHER A3 POST AND, IN CONSEQUENCE, TO APPLY THE CONTESTED MEASURE TO HIM . THE COMMISSION CANNOT BE EXPECTED, AS THE APPLICANT DESIRES, TO GO FURTHER AND GIVE PARTICULARS OF ITS ASSESSMENT OF HIM IN COMPARISON WITH EACH OF THE OTHER OFFICIALS OF EQUAL RANK WHO ARE NOT THE SUBJECT OF A DECISION TERMINATING THEIR SERVICE . SUCH COMPARISONS ENTAIL COMPLEX VALUE JUDGMENTS RELATING TO INDIVIDUAL CASES WHICH MUST NOT BE EMBODIED IN THE STATEMENT OF REASONS FOR THE CONTESTED DECISION OR MADE KNOWN TO THE PERSON CONCERNED .
36 THE SUBMISSION IS THEREFORE UNFOUNDED .
FOURTH SUBMISSION
37/40 THE APPLICANT MAINTAINS THAT THE DECISION IN DISPUTE IS ARBITRARY AND IS NOT IN FACT BASED ON THE REQUIREMENTS OF DEPARTMENT RATIONALIZATION . ACCORDING TO HIM, SEVERAL A3 AND A4 POSTS WERE DECLARED VACANT DURING THE WEEKS PRIOR TO THE DISPUTED MEASURE; IN THE DIRECTORATE-GENERAL FOR INFORMATION, THE NUMBER OF POSTS WAS ACTUALLY INCREASED AS A RESULT OF THE MERGER . FINALLY, HE MAINTAINS THAT THE COMMISSION NEVER GAVE OBJECTIVE CONSIDERATION TO THE POSSIBILITY OF RE-SETTLING HIM IN ANOTHER POST IN THE INFORMATION DEPARTMENT OR, MORE PRECISELY, IN THE POST OF HEAD OF THE OFFICE AT THE HAGUE .
41/42 ARTICLE 4 OF REGULATION NO 259/68, WHILE LAYING DOWN PRECISE RULES TO GUIDE THE COMMISSION IN DRAWING UP THE LIST PROVIDED FOR UNDER THAT ARTICLE, LEAVES THE COMMISSION FREE TO ASSESS EACH INDIVIDUAL CASE ON ITS MERITS . ALTHOUGH THE COURT MAY NOT SUBSTITUTE ITS OWN ASSESSMENT FOR THAT OF THE COMMISSION, IT CAN NEVERTHELESS CHECK WHETHER THE DISPUTED DECISION WAS TAKEN HAVING REGARD TO THE CRITERIA LAID DOWN IN ARTICLE 4 OF REGULATION NO 259/68 AND WITH THE OBJECT OF RATIONALIZING ITS DEPARTMENTS .
43/44 AFTER STATING THE FACTS CONCERNING THE AGE AND FAMILY CIRCUMSTANCES OF THE APPLICANT AND THE REPORTS ON HIM, THE COMMISSION, IN ITS LETTER OF 26 JUNE 1968, JUSTIFIES THE MEASURE OF TERMINATION OF SERVICE ON THE BASIS THAT THE POST FILLED BY THE APPLICANT NO LONGER APPEARED IN THE DETAILED LIST OF POSTS . THE DEFENDANT JUSTIFIES ITS DECISION NOT TO ASSIGN THE APPLICANT TO ANOTHER POST IN GRADE A3 BY STATING THAT THE APPOINTMENT WOULD HAVE REQUIRED THE APPLICANT TO HAVE KNOWLEDGE OTHER THAN THAT WHICH HE POSSESSED AND WOULD HAVE ENTAILED A PERIOD OF ADJUSTMENT TO THE NEW DUTIES WHICH, IN VIEW OF HIS AGE, WAS HARDLY DESIRABLE .
45/47 IT IS CLEAR FROM THIS DECISION THAT THE COMMISSION HAD REGARD TO THE CRITERIA SET OUT IN ARTICLE 4 OF REGULATION NO 259/68 . IT IS ALSO CLEAR THAT, AFTER NOTING THAT THE APPLICANT'S POST HAD BEEN ABOLISHED, THE COMMISSION CONSIDERED THE POSSIBILITY OF RE-ASSIGNING HIM TO OTHER POSTS WHICH WERE, OR WERE ABOUT TO BECOME VACANT AND THAT IT REACHED A NEGATIVE CONCLUSION CONCERNING THE APPLICANT'S SUITABILITY FOR THESE POSTS . THUS, THE FACT THAT A NUMBER OF POSTS WERE VACANT IS NOT ONE WHICH COULD INVALIDATE THE DISPUTED DECISION TO TERMINATE HIS SERVICE .
48 FINALLY, THE FACT RELIED UPON BY THE APPLICANT THAT THE NUMBER OF POSTS IN THE DIRECTORATE-GENERAL OF INFORMATION INCREASED IN COMPARISON WITH THE NUMBER OF POSTS IN THE FORMER DEPARTMENT, THOUGH ONLY TO A SMALL EXTENT, IN NO WAY LESSENS THE IMPORTANCE OF THE FACT THAT THE APPLICANT'S POST HAD BEEN ABOLISHED IN CIRCUMSTANCES WHICH MADE ANY RE-ASSIGNMENT ULTIMATELY DEPENDENT ON THE COMMISSION'S ASSESSMENT OF HIS SUITABILIY .
49 THE SUBMISSION IS THEREFORE UNFOUNDED .
Decision on costs
50/52 THE APPLICANT HAS FAILED IN HIS APPEAL . UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY MUST BEAR THE COSTS . NEVERTHELESS, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS INSTITUTED BY SERVANTS OF THE COMMUNITIES, THE INSTITUTIONS SHALL BEAR THEIR OWN 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;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY;
HAVING REGARD TO THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES;
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 UNFOUNDED IN SO FAR AS IT SEEKS ANNULMENT OF THE COMMISSION'S DECISION OF 26 JUNE 1968 AND FOR THE REST AS INADMISSIBLE;
2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .