61981CJ0191_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 191/81
ONNO PLUG, A TEMPORARY SERVANT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 21 AVENUE WEBER, GENEVA, REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, ADVOCATE, 83 BOULEVARD
GRANDE-DUCHESSE-CHARLOTTE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JEAN-PIERRE DELAHOUSSE AND HENDRIK VAN LIER, MEMBERS OF ITS LEGAL DEPARTMENT, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION IN THE TERMS SET OUT IN THE APPLICANT ' S CONCLUSIONS,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 22 JUNE 1981, MR ONNO PLUG, A TEMPORARY SERVANT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR ANNULMENT OF HIS CLASSIFICATION IN GRADE A 4 AND OF THE DESCRIPTION OF HIS DUTIES IN THE TEMPORARY CONTRACT OF 22 AUGUST 1980, FOR
ANNULMENT OF THE DECISION OF 9 JANUARY 1981 RELIEVING HIM OF HIS FORMER DUTIES AND WITHDRAWING HIS ACCREDITATION TO THE INTERNATIONAL ORGANIZATIONS IN GENEVA, FOR AN ORDER THAT THE COMMISSION MUST PAY HIM COMPENSATION FOR MATERIAL AND NON-MATERIAL DAMAGE WHICH HE CLAIMS TO HAVE SUFFERED AS A RESULT OF THE ABOVEMENTIONED DECISIONS AND, FINALLY, FOR ANNULMENT OF THE IMPLIED DECISIONS REJECTING HIS COMPLAINTS OF 22 NOVEMBER 1980 AND 20 JANUARY 1981 .
2 FROM 1966 TO 1976, THE APPLICANT WAS EMPLOYED BY THE EUROPEAN ASSOCIATION FOR COOPERATION ( HEREINAFTER REFERRED TO AS ' ' THE ASSOCIATION ' ' ) UNDER A CONTRACT FOR AN INDEFINITE PERIOD . DURING THAT PERIOD, HE WAS PLACED AT THE DISPOSAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HE REPRESENTED IN BENIN AND IN ZAMBIA .
3 AT THE BEGINNING OF 1977, THE APPLICANT TERMINATED HIS CONTRACT WITH THE ASSOCIATION IN ORDER TO ACCEPT A TEMPORARY CONTRACT OFFERED TO HIM BY THE COMMISSION . UNDER THAT CONTRACT THE APPLICANT WAS RECRUITED FOR A PERIOD OF ONE YEAR, AS FROM 23 MAY 1977, AS HEAD OF DIVISION IN GRADE A 3, STEP 4 . THAT CONTRACT, WHICH EXPIRED ON 23 MAY 1978, WAS EXTENDED UNTIL 22 SEPTEMBER 1978 ON THE GROUND THAT RENEWAL WAS IMPOSSIBLE, ACCORDING TO THE COMMISSION, SINCE APPOINTMENTS TO THE POST OF HEAD OF DIVISION ARE RESTRICTED TO OFFICIALS PAID OUT OF OPERATING APPROPRIATIONS .
4 HOWEVER, THE APPLICANT WAS RE-ENGAGED BY THE COMMISSION UNDER A NEW CONTRACT CONCLUDED ON 15 NOVEMBER 1978, WHICH WAS TO TAKE EFFECT AS FROM 23 SEPTEMBER 1978 AND TO EXPIRE ON 20 JUNE 1980, AND WAS ASSIGNED TO AN ACP TEMPORARY POST AS AN ADVISER IN GRADE A 3 ON RELATIONS WITH THE UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT ( UNCTAD ), ATTACHED TO THE COMMISSION ' S DELEGATION IN GENEVA .
5 ON 22 AUGUST 1980, THE COMMISSION OFFERED THE APPLICANT A FURTHER CONTRACT WITH EFFECT FROM 1 JULY 1980 . UNLIKE THE PREVIOUS CONTRACT, THE NEW CONTRACT PROVIDED THAT THE APPLICANT WAS TO BE ENGAGED FOR AN INDEFINITE PERIOD AS A PRINCIPAL ADMINISTRATOR IN GRADE A 4, STEP 4, AND WAS TO BE ATTACHED TO THE COMMISSION ' S DELEGATION IN GENEVA .
6 THE APPLICANT SIGNED THAT CONTRACT AND RETURNED IT, BUT APPENDED A NOTE DATED 27 SEPTEMBER 1980 EXPRESSING A RESERVATION REGARDING HIS CLASSIFICATION .
THAT RESERVATION WAS BASED, INTER ALIA, ON THE FACT THAT IN HIS PREVIOUS CONTRACT HE WAS CLASSIFIED IN GRADE A 3 AND THAT HIS DUTIES IN GENEVA HAD REMAINED UNCHANGED .
7 ON 22 NOVEMBER 1980, MR PLUG SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS IN WHICH HE SOUGHT THE ANNULMENT OF HIS CLASSIFICATION IN GRADE A 4 AND OF THE DESCRIPTION OF HIS DUTIES, A DECLARATION THAT HIS DUTIES WERE THOSE OF AN ADVISER IN GRADE A 3 AND A CORRESPONDING ADJUSTMENT OF HIS FINANCIAL ENTITLEMENTS . THAT COMPLAINT REMAINED UNANSWERED .
8 BY NOTE OF 9 JANUARY 1981, THE DIRECTOR GENERAL FOR DEVELOPMENT INFORMED THE APPLICANT THAT ANOTHER OFFICIAL IN GRADE A 3, MR GRUMBACH, WAS TO BE TRANSFERRED TO GENEVA TO TAKE OVER THE DUTIES PREVIOUSLY ASSIGNED TO MR PLUG WHO WAS THENCEFORTH MERELY ' ' TO COOPERATE ' '
IN CARRYING OUT THE TASKS ENTRUSTED TO THE DELEGATION ' ' UNDER THE AUTHORITY ' '
OF MR GRUMBACH .
9 AS A RESULT OF THAT DECISION, MR PLUG ' S ACCREDITATION TO THE INTERNATIONAL ORGANIZATIONS IN GENEVA WAS WITHDRAWN UPON MR GRUMBACH ' S ARRIVAL .
10 ON 20 JANUARY 1981, THE APPLICANT SUBMITTED A FURTHER COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS IN WHICH HE REQUESTED PRIMARILY THE REINSTATEMENT OF HIS ACCREDITATION, WHICH HE CONSIDERED ESSENTIAL EVEN FOR THE ACCOMPLISHMENT OF THE MORE RESTRICTED DUTIES ASSIGNED TO HIM AND THE WITHDRAWAL OF WHICH WAS, IN HIS OPINION, HARMFUL TO HIS REPUTATION AND TO HIS PROFESSIONAL STANDING AND, SECONDLY, A DETAILED DESCRIPTION OF HIS DUTIES .
11 ALTHOUGH THE COMMISSION ACCEDED TO HIS SECOND REQUEST BY A NOTE OF 18 MARCH 1981 FROM THE HEAD OF THE DELEGATION IN GENEVA IN WHICH THE NEW DUTIES ASSIGNED TO HIM WERE DESCRIBED IN DETAIL, ON 23 JUNE 1981 IT BELATEDLY ADOPTED A DECISION REJECTING THE FIRST REQUEST CONCERNING HIS ACCREDITATION . IN THE MEANTIME, MR PLUG BROUGHT THIS ACTION, HIS APPLICATION BEING RECEIVED AT THE COURT REGISTRY ON 22 JUNE 1981 .
( A ) ADMISSIBILITY OF THE APPLICATION FOR ANNULMENT OF THE IMPLIED DECISIONS REJECTING THE APPLICANT ' S COMPLAINTS
12 THE COMMISSION HAS RAISED AN OBJECTION OF INADMISSIBILITY REGARDING MR PLUG ' S APPLICATION FOR ANNULMENT OF THE IMPLIED DECISIONS REJECTING HIS COMPLAINTS OF 22 NOVEMBER 1980 AND 20 JANUARY 1981, INASMUCH AS THEY MERELY CONFIRM AND FORM PART OF THE CONTESTED DECISIONS AND DO NOT, THEREFORE, CONSTITUTE SEPARATE MEASURES WHICH MAY BE CHALLENGED .
13 THAT OBJECTION IS WELL FOUNDED . AS THE COURT HAS POINTED OUT IN PREVIOUS DECISIONS AND IN PARTICULAR IN ITS JUDGMENT OF 28 MAY 1980 IN JOINED CASES 33 AND 75/79 KUHNER ( 1980 ) ECR 1677, EVERY DECISION PURELY AND SIMPLY REJECTING A COMPLAINT, WHETHER IT BE EXPRESS OR IMPLIED, ONLY CONFIRMS THE ACT OR FAILURE TO ACT TO WHICH THE COMPLAINANT TAKES EXCEPTION AND IS NOT, BY ITSELF, A DECISION WHICH MAY BE CHALLENGED .
14 IN THE PRESENT CASE, THE IMPLIED DECISIONS REJECTING THE APPLICANT ' S COMPLAINTS MERELY CONFIRM PREVIOUS DECISIONS ADOPTED BY THE COMMISSION ; ACCORDINGLY, MR PLUG ' S APPLICATION FOR THEIR ANNULMENT MUST BE DISMISSED AS INADMISSIBLE .
( B ) SUBSTANCE
1 . FIRST CLAIM
15 THE APPLICANT SEEKS, IN THE FIRST PLACE, THE AMENDMENT OF HIS CLASSIFICATION AND OF THE DESCRIPTION OF HIS DUTIES IN THE CONTRACT CONCLUDED ON 22 AUGUST 1980, WITH RETROACTIVE EFFECT FROM THE DATE ON WHICH THE CONTRACT TOOK EFFECT, BUT WITHOUT ANY CHANGE IN THE OTHER PROVISIONS OF THE CONTRACT .
16 IN SUPPORT OF HIS CLAIM, THE APPLICANT MAINTAINS, IN HIS FIRST SUBMISSION, THAT HIS CLASSIFICATION IN GRADE A 4 AND THE DESCRIPTION OF HIM AS A PRINCIPAL ADMINISTRATOR ARE IN BREACH OF THE PRINCIPLE THAT AN OFFICIAL ' S DUTIES AND GRADING MUST CORRESPOND TO THE POST OCCUPIED BY HIM WHICH IS EMBODIED IN ARTICLES 5 AND 7 OF THE STAFF REGULATIONS AND IS ALSO APPLICABLE TO TEMPORARY SERVANTS BY VIRTUE OF ARTICLES 9 AND 10 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES ( HEREINAFTER REFERRED TO AS ' ' THE
CONDITIONS OF EMPLOYMENT ' ' ). HE CLAIMS IN THAT REGARD THAT AFTER THE EXPIRY OF THE CONTRACT OF 15 NOVEMBER 1978 HE PERFORMED THE SAME DUTIES AS BEFORE FOR A PERIOD OF AT LEAST FOUR MONTHS AND THAT THOSE DUTIES CORRESPONDED, IN SO FOR AS IT IS POSSIBLE TO TELL FROM THE DESCRIPTION OF THE DUTIES AND THE RESPONSIBILITIES ATTACHING TO EACH BASIC POST ADOPTED BY THE COMMISSION, TO GRADE A 3 AND TO THE DESCRIPTION OF ADVISER . THE APPLICANT CLAIMS THAT THE DEFINITION OF HIS NEW DUTIES, CONTAINED IN THE NOTES OF 9 JANUARY 1981 AND 18 MARCH 1981, CANNOT ALTER THAT SITUATION INASMUCH AS IN REALITY THOSE NOTES CONSTITUTE A UNILATERAL AMENDMENT OF THE CONTRACT WHICH HAD ALREADY BEEN CONCLUDED, THEIR SOLE PURPOSE BEING TO RECTIFY EX POST FACTO THE ERROR ALLEGEDLY MADE BY THE COMMISSION .
17 THAT ARGUMENT CANNOT BE ACCEPTED . THE CONTRACT CONCLUDED ON 22 AUGUST 1981 DIFFERS SUBSTANTIALLY FROM THE PREVIOUS CONTRACT . THE NEW CONTRACT CONTAINS A SERIES OF AMENDMENTS REGARDING FUNDAMENTAL TERMS SUCH AS THE DURATION OF THE CONTRACT, WHICH BECAME INDEFINITE, THE TRANSFER OF THE POST FROM BUDGET HEADING A 3 TO BUDGET HEADING A 5/4 ACP/TEMPORARY AND, FINALLY, THE ACTUAL PURPOSE OF THE EMPLOYMENT RELATIONSHIP INASMUCH AS THE APPLICANT WAS RECRUITED AS A PRINCIPAL ADMINISTRATOR IN GRADE A 4 . THE APPLICANT MUST HAVE BEEN AWARE OF THE DESCRIPTION OF DUTIES AND RESPONSIBILITIES CORRESPONDING TO EACH BASIC POST AND COULD NOT THEREFORE EXPECT TO BE ENTRUSTED WITH THE SAME DUTIES AS THOSE WHICH HE HAD PERFORMED UNDER HIS PREVIOUS CONTRACT .
18 THE FACT THAT, FOR APPROXIMATELY FOUR MONTHS PRIOR TO MR GRUMBACH ' S ARRIVAL IN GENEVA, THE APPLICANT CONTINUED TO PERFORM THE DUTIES WHICH HAD BEEN ASSIGNED TO HIM UNDER THE CONTRACT CONCLUDED IN 1978 AND THAT DURING THAT PERIOD HE THEREFORE CARRIED OUT DUTIES WHICH WERE MORE IMPORTANT THAN THOSE ASSIGNED TO HIM UNDER THE CONTRACT CONCLUDED IN 1980 IS NOT A DECISIVE CONSIDERATION EITHER . PURSUANT TO ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS, WHICH ALSO APPLIES TO TEMPORARY SERVANTS BY VIRTUE OF THE REFERENCE TO THAT PROVISION CONTAINED IN THE FIRST PARAGRAPH OF ARTICLE 10 OF THE CONDITIONS OF EMPLOYMENT, ANY OFFICIAL MAY BE CALLED UPON TO OCCUPY TEMPORARILY AND FOR A PERIOD NOT EXCEEDING ONE YEAR, A POST IN A HIGHER CAREER BRACKET ; HE MAY NOT REFUSE SUCH A TEMPORARY POSTING OR THEREBY ACQUIRE ANY ENTITLEMENT TO RE-CLASSIFICATION . ACCORDINGLY, THE AFOREMENTIONED CIRCUMSTANCES DO NOT CONFER UPON THE APPLICANT ANY RIGHT TO BE RE-GRADED OR TO HAVE THE DESCRIPTION OF HIS DUTIES AMENDED IN HIS EXISTING CONTRACT . IT IS CLEAR, ON THE
OTHER HAND, THAT FOLLOWING THE NOTE OF 9 JANUARY 1981 AND THE ARRIVAL IN GENEVA OF ANOTHER OFFICIAL IN GRADE A 3, MORE RESTRICTED DUTIES WERE ASSIGNED TO THE APPLICANT WHICH CORRESPONDED PRECISELY TO THE GRADE AND TO THE DESCRIPTION CONTAINED IN THE CONTESTED CONTRACT .
19 THE CONCLUSION MUST THEREFORE BE DRAWN THAT, IN THE PRESENT CASE, THERE HAS BEEN NO BREACH OF THE PRINCIPLE THAT AN OFFICIAL ' S GRADING MUST CORRESPOND TO THE POST WHICH HE OCCUPIES .
20 IN HIS SECOND SUBMISSION CONCERNING THIS CLAIM, THE APPLICANT MAINTAINS THAT IN DOWNGRADING HIM BY COMPARISON WITH HIS CLASSIFICATION IN THE PREVIOUS CONTRACT THE COMMISSION ACTED IN BREACH OF ITS DUTY OF ASSISTANCE, PROVIDED FOR BY ARTICLE 24 OF THE STAFF REGULATIONS, AND OF A NUMBER OF OTHER UNWRITTEN DUTIES, IN PARTICULAR ITS DUTY TO PROVIDE FOR THE WELFARE OF ITS OFFICIALS ( ' ' FURSORGEPFLICHT ' ' ).
21 THAT ARGUMENT CANNOT BE ACCEPTED EITHER . THE REFERENCE TO ARTICLE 25 OF THE STAFF REGULATIONS IS NOT RELEVANT SINCE THAT PROVISION IS CONCERNED WITH THE DEFENCE OF OFFICIALS AGAINST THE ACTS OF THIRD PARTIES AND NOT AGAINST ACTS EMANATING FROM THE INSTITUTION ITSELF ( JUDGMENT OF 25 MARCH 1982 IN CASE 98/81 MUNK ( 1982 ) ECR 1169 ). THE COMMISSION ' S DUTY TO PROVIDE FOR THE WELFARE OF ITS OFFICIALS REFLECTS, ACCORDING TO THE CASE-LAW OF THE COURT, THE BALANCE OF THE RECIPROCAL RIGHTS AND OBLIGATIONS ESTABLISHED BY THE STAFF REGULATIONS IN THE RELATIONSHIP BETWEEN THE OFFICIAL AUTHORITY AND THE CIVIL SERVANTS ( JUDGMENT OF 28 MAY 1980 IN JOINED CASES 33 AND 75/79 KUHNER CITED ABOVE ). IN THE PRESENT CASE, THAT BALANCE HAS NOT BEEN UPSET BY THE COMMISSION ' S DECISION .
22 THE APPLICANT ' S FIRST CLAIM MUST THEREFORE BE REJECTED .
2 . SECOND CLAIM
23 SECONDLY, THE APPLICANT SEEKS ANNULMENT OF THE DECISION REDEFINING HIS RESPONSIBILITIES, CONTAINED IN THE NOTE OF 9 JANUARY 1981 FROM THE DIRECTOR GENERAL FOR DEVELOPMENT, AND OF THE DECISION WITHDRAWING HIS ACCREDITATION TO THE INTERNATIONAL ORGANIZATIONS IN GENEVA .
24 THE APPLICANT CONSIDERS THAT THE DECISION CONTAINED IN THE AFOREMENTIONED NOTE ASSIGNING NEW, MORE RESTRICTED DUTIES TO HIM IS UNLAWFUL INASMUCH AS IT IS A DECISION ADVERSELY AFFECTING HIM AND SHOULD THEREFORE, IN ACCORDANCE WITH THE COMBINED PROVISIONS OF ARTICLE 11 OF THE CONDITIONS OF EMPLOYMENT AND THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS, HAVE STATED THE GROUNDS ON WHICH IT WAS BASED .
25 THAT ARGUMENT IS UNFOUNDED . SINCE THE CHANGE IN THE APPLICANT ' S DUTIES WAS THE RESULT OF THE CONCLUSION OF A NEW CONTRACT IN 1980, THE DIRECTOR GENERAL ' S NOTE OF 9 JANUARY 1981 MUST BE REGARDED AS AN INTERNAL ADMINISTRATIVE MEASURE IN WHICH THE COMPETENT AUTHORITY DEFINED THE APPLICANT ' S RESPONSIBILITIES AS PRINCIPAL ADMINISTRATOR .
26 THE APPLICANT MAINTAINS THAT IT WAS ILLOGICAL AND SENSELESS TO WITHDRAW HIS ACCREDITATION TO THE INTERNATIONAL ORGANIZATIONS INASMUCH AS HE IS THEREBY PREVENTED FROM CARRYING OUT EVEN THE MORE RESTRICTED DUTIES AT PRESENT ASSIGNED TO HIM AND THE MEASURE IS THEREFORE PURELY VEXATIOUS IN NATURE AND PURPOSE . THE DECISION TO WITHDRAW HIS ACCREDITATION IS, MOREOVER, UNLAWFUL BECAUSE IT DOES NOT STATE THE GROUNDS ON WHICH IT IS BASED .
27 THAT ARGUMENT CANNOT BE ACCEPTED . IN VIEW OF THE FACT THAT ACCREDITATION IS GRANTED TO OFFICIALS AND OTHER SERVANTS TO ENABLE THEM TO PERFORM THEIR DUTIES MORE EFFECTIVELY, THE ADVANTAGES RESULTING THEREFROM ATTACH TO THE POST OCCUPIED BY THE OFFICIAL OR SERVANT CONCERNED AND NOT TO HIM PERSONALLY . THUS, IT IS FOR THE APPOINTING AUTHORITY, WHICH IS VESTED WITH DISCRETIONARY POWERS IN THAT REGARD, TO DETERMINE WHETHER OR NOT ACCREDITATION IS NECESSARY FOR THE PERFORMANCE OF CERTAIN DUTIES . IF, IN THAT CONNECTION, THE APPOINTING AUTHORITY CONSIDERS THAT, FOLLOWING A LAWFUL CHANGE IN THE RESPONSIBILITIES OF AN OFFICIAL OR SERVANT, ACCREDITATION IS NO LONGER NECESSARY, ITS DECISION IS A DIRECT RESULT OF THAT CHANGE AND, ACCORDINGLY, THE GROUNDS ON WHICH THE DECISION IS BASED NEED NOT BE STATED .
28 IT FOLLOWS THAT THE APPLICANT ' S SECOND CLAIM MUST ALSO BE REJECTED .
3 . THIRD CLAIM
29 THIRDLY, THE APPLICANT CLAIMS COMPENSATION FOR DAMAGE RESULTING FROM THE COMMISSION ' S DECISIONS WHICH ARE IN HIS VIEW UNLAWFUL . SINCE THE LEGALITY OF THOSE DECISIONS HAS BEEN UPHELD, IT IS UNNECESSARY TO CONSIDER THIS CLAIM .
30 THE APPLICATION MUST THEREFORE BE DISMISSED IN ITS ENTIRETY .
Decision on costs
COSTS
31 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS UNFOUNDED .
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .