61981CJ0117_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 117/81
JEAN-JACQUES GEIST, REPRESENTED BY MARCEL SLUSNY, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE, CENTRE LOUVIGNY, 34 B RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, JORN PIPKORN AND HENDRIK VAN LIER, 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 FOR ANNULMENT OF THE COMMISSION DECISION OF 14 JULY 1980 TO THE EFFECT THAT THE APPLICANT ' S CANDIDATURE FOR POST NO 120 COULD NOT BE ACCEPTED, OF THE DECISION CONTAINED IN VACANCY NOTICE NO 120 TO RESERVE THE POST FOR OFFICIALS PAID FROM THE OPERATIONAL APPROPRIATIONS AND OF ALL THE DECISIONS TAKEN FOLLOWING THE PUBLICATION OF THAT NOTICE TO FILL POST NO 120,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 14 MAY 1981 MR GEIST, A SCIENTIFIC OFFICIAL ASSIGNED TO THE JOINT RESEARCH CENTRE AT ISPRA, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION NOTIFIED TO HIM ON 14 JULY 1980 TO THE EFFECT THAT HIS APPLICATION FOR POST NO 120 AS FIRST SECRETARY RESPONSIBLE FOR SCIENTIFIC AND TECHNICAL MATTERS WITH THE COMMUNITIES '
DELEGATION IN WASHINGTON COULD NOT BE ACCEPTED ; OF THE DECISION CONTAINED IN VACANCY NOTICE NO 120 TO RESERVE THE POST TO OFFICIALS PAID FROM OPERATIONAL APPROPRIATIONS AND OF ALL DECISIONS TAKEN PURSUANT TO THE PUBLICATION OF THE VACANCY NOTICE FOR THE PURPOSE OF FILLING POST NO 120 .
2 THE APPLICANT TOOK UP DUTY ON 1 APRIL 1962 AT THE JOINT RESEARCH CENTRE AT PETTEN ( THE NETHERLANDS ) AS THE HEAD OF HYDRAULIC STUDIES ; IN 1963 HE WAS APPOINTED HEAD OF THE HYDRODYNAMICS AND MEASUREMENTS DIVISION AND ON 1 JANUARY 1966 WAS PROMOTED TO GRADE A 5 AFTER A PERIOD OF SECONDMENT IN THE USA . AS A RESULT OF THE CHANGE DECIDED BY THE COUNCIL ON 15 JUNE 1965
IN THE 1962 RESEARCH PROGRAMMES FOR WHICH MR GEIST PERFORMED WORK APPROPRIATE TO HIS SPECIALIST QUALIFICATIONS HE WAS FORCED TO DEVOTE HIMSELF TO NEW TASKS DEFINED BY THE INSTITUTION . AFTER THE NEW CHANGE IN THE RESEARCH PROGRAMMES DECIDED ON 22 AUGUST 1975 BY THE COUNCIL IT WAS FOUND IMPOSSIBLE TO USE MR GEIST ' S CAPABILITIES AT THE JOINT RESEARCH CENTRE AT PETTEN AND THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE THEREFORE DECIDED ON 10 DECEMBER 1975 TO TRANSFER HIM AS FROM 1 MARCH 1976 TO THE HEAT TRANSFER AND FLUID MECHANICS DIVISION OF THE JOINT RESEARCH CENTRE AT ISPRA .
3 THAT POST DID NOT SUIT MR GEIST AND HE BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION TO TRANSFER HIM, WHICH WAS DISMISSED BY JUDGMENT OF THE COURT OF 14 JULY 1977 ( CASE 61/76 ( 1977 ) ECR 1419 ). MR GEIST THEN ASKED THE COMMISSION TO FIND HIM A POST OUTSIDE THE JOINT RESEARCH CENTRE AT ISPRA .
4 IN EXPECTATION OF A NEW ASSIGNMENT MR GEIST SUBMITTED AN APPLICATION FOR POST NO 120 ADVERTISED IN A VACANCY NOTICE IN THE STAFF COURIER OF 13 JUNE 1980 AND WORDED AS FOLLOWS :
' ' POST NO 120 - PURSUANT TO THE SYSTEM OF ROTATION ADOPTED FOR DELEGATIONS AND INFORMATION OFFICES, THE DIRECTORATE-GENERAL I, EXTERNAL RELATIONS, SEEKS FOR THE DELEGATION IN WASHINGTON : AN OFFICIAL OF GRADE A 4 TO GRADE A 7, FIRST SECRETARY RESPONSIBLE FOR SCIENTIFIC AND TECHNICAL MATTERS . WIDE EXPERIENCE IN THE FIELD OF SCIENTIFIC AND TECHNICAL PROBLEMS AND IN PARTICULAR IN THE FIELD OF ENERGY IS REQUIRED . . . APPLICATIONS ARE RESERVED TO OFFICIALS OF THE COMMISSION PAID OUT OF OPERATIONAL APPROPRIATIONS . ' '
5 IN A MEMORANDUM DATED 14 JULY 1980 MR GEIST WAS INFORMED THAT HIS APPLICATION HAD BEEN REJECTED . ON 13 OCTOBER 1980 HE MADE A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS CLAIMING THE WITHDRAWAL OF THE DECISION NOTIFIED BY LETTER OF 14 JULY 1980, THE WITHDRAWAL, SO FAR AS NECESSARY, OF THE DECISION TO TRANSFER OR PROMOTE ANOTHER OFFICIAL AND FINALLY THE AMENDMENT OF THE TERMS OF VACANCY NOTICE NO 120 WITH THE OBJECT OF MAKING THE VACANCY AVAILABLE ALSO TO OFFICIALS PAID FROM APPROPRIATIONS IN THE RESEARCH AND INVESTMENT BUDGET . WHEN BY IMPLICATION THE ADMINISTRATION REJECTED HIS COMPLAINT MR GEIST BROUGHT THE PRESENT ACTION .
THE FIRST TWO SUBMISSIONS
6 IN SUPPORT OF HIS APPLICATION THE APPLICANT FIRST OF ALL MAKES TWO SUBMISSIONS OF PATENT DEFECTS IN THE DECISION NOTIFIED ON 14 JULY 1980 REJECTING HIS APPLICATION . HE CLAIMS ON THE ONE HAND THAT THE OFFICIAL WHO SIGNED THE MEMORANDUM OF 14 JULY 1980 HAD NO POWER TO DO SO AND ON THE OTHER THAT THE GROUNDS ON WHICH THE DECISION WAS BASED WERE NOT STATED .
7 THE COURT FINDS THAT EVEN ASSUMING THAT THE CONTESTED DECISION IS VITIATED BY THE TWO BREACHES OF PROCEDURAL REQUIREMENTS ALLEGED, AN APPLICANT HAS NO LEGITIMATE INTEREST IN SECURING THE ANNULMENT OF A DECISION FOR A FORMAL DEFECT WHERE THE ADMINISTRATION HAS NO DISCRETION AND IS BOUND TO ACT IS IT DID . IN SUCH A CASE THE ANNULMENT OF THE CONTESTED DECISION COULD ONLY GIVE RISE TO ANOTHER DECISION SUBSTANTIALLY IDENTICAL TO THE DECISION ANNULLED .
8 THE COMMISSION ALLEGES THAT SUCH IS THE CASE HERE . THE VACANCY NOTICE REQUIRED IT TO EXCLUDE MR GEIST ' S APPLICATION SINCE HE WAS NOT PAID FROM OPERATIONAL APPROPRIATIONS . THE VALIDITY OF THAT ARGUMENT ULTIMATELY DEPENDS ON WHETHER VACANCY NOTICE NO 120 COULD LAWFULLY PRESCRIBE THAT THE POST IN ISSUE COULD BE ASSIGNED ONLY TO AN OFFICIAL PAID FROM THE OPERATIONAL APPROPRIATIONS . IN THOSE CIRCUMSTANCES IT IS APPROPRIATE TO RESERVE JUDGMENT ON THE FIRST TWO SUBMISSIONS AND TO CONSIDER THE OTHER SUBMISSIONS IN THE APPLICATION IN WHICH MR GEIST CHALLENGES THE LEGALITY OF VACANCY NOTICE NO 120 INASMUCH AS IT LAYS DOWN THE RULE THAT ONLY OFFICIALS PAID FROM OPERATIONAL APPROPRIATIONS MAY APPLY FOR THE POST AT ISSUE .
THE THIRD AND FOURTH SUBMISSIONS
9 ACCORDING TO THE APPLICANT THE EXCLUSION IN THE VACANCY NOTICE OF OFFICIALS PAID FROM RESEARCH APPROPRIATIONS IS IN THE FIRST PLACE CONTRARY TO THE PROVISIONS OF THE DECISION OF 23 JULY 1975 WHICH DEFINED VERY WIDELY THE SYSTEM OF ROTATION OF OFFICIALS POSTED TO DELEGATIONS AND OFFICES IN NON-MEMBER COUNTRIES .
10 IN THAT RESPECT IT MUST BE POINTED OUT THAT ALTHOUGH THE DECISION OF 23 JULY 1975 ARRANGES FOR THE TRANSFER OF OFFICIALS BETWEEN THE OFFICES IN NON-MEMBER COUNTRIES AND CENTRAL OFFICES WITHOUT EXPRESSLY MAKING A DISTINCTION BETWEEN OFFICIALS PAID FROM OPERATIONAL APPROPRIATIONS AND THOSE PAID FROM RESEARCH APPROPRIATIONS IT IS NEVERTHELESS THE FACT THAT UNDER POINT II ( 1.2 ) OF THE SAID DECISION OFFICIALS WHO TAKE PART IN GENERAL MOVEMENTS OF ROTATION ARE ASSIGNED TOGETHER WITH THEIR BUDGETARY POSTS .
11 IT IS APPARENT BOTH FROM THE DOCUMENTS PRODUCED BY THE COMMISSION AND FROM THE ARGUMENTS PUT FORWARD BEFORE THE COURT THAT OFFICIALS PAID FROM RESEARCH APPROPRIATIONS PURSUE RESEARCH OBJECTIVES SPECIALLY DEFINED BY THE COUNCIL . AN OFFICIAL PAID FROM RESEARCH APPROPRIATIONS CANNOT THEREFORE BE ASSIGNED TOGETHER WITH HIS BUDGETARY POST TO TASKS WHICH ARE NOT PART OF A RESEARCH PROGRAMME SINCE SUCH A PRACTICE WOULD BE IN BREACH OF DECISIONS TAKEN BY THE COUNCIL IN RELATION TO RESEARCH AND OF THE BUDGETARY RULES FOR ALLOCATION OF APPROPRIATIONS .
12 IT IS COMMON GROUND THAT IN THIS CASE THE POST OF FIRST SECRETARY RESPONSIBLE FOR SCIENTIFIC AND TECHNICAL MATTERS IN THE DELEGATION IN WASHINGTON WAS SIMPLY INTENDED TO REPRESENT THE EUROPEAN COMMUNITIES VIS-A-VIS NON-MEMBER COUNTRIES AND IN NO WAY CONTRIBUTED TO CARRYING OUT A RESEARCH PROGRAMME APPROVED BY THE COUNCIL .
13 IT FOLLOWS FROM THE FOREGOING THAT IN THE ABSENCE AT THAT TIME OF ANY MECHANISM ENABLING THE RESEARCH BUDGET TO BE COMPENSATED THE COMMISSION COULD NOT ASSIGN AN OFFICIAL PAID FROM RESEARCH APPROPRIATIONS TOGETHER WITH HIS BUDGETARY POST TO THE POST OF FIRST SECRETARY IN WASHINGTON . MR GEIST HAS THEREFORE NO GROUND FOR MAINTAINING THAT IN RESERVING THAT POST TO OFFICIALS PAID FROM OPERATIONAL APPROPRIATIONS VACANCY NOTICE NO 120 WAS IN BREACH OF THE DECISION OF 23 JULY 1975 .
14 IN THE SECOND PLACE THE APPLICANT MAINTAINS THAT IN EXCLUDING OFFICIALS PAID FROM RESEARCH APPROPRIATIONS VACANCY NOTICE NO 120 DISCRIMINATED WITHOUT ANY OBJECTIVE JUSTIFICATION AGAINST OFFICIALS OF THE SCIENTIFIC AND TECHNICAL STAFF .
15 IT MUST BE REMEMBERED IN THAT RESPECT THAT THE DISTINCTION BETWEEN OFFICIALS OF THE SCIENTIFIC OR TECHNICAL STAFF PAID FROM APPROPRIATIONS IN THE RESEARCH AND INVESTMENT BUDGET AND OFFICIALS OF THE ADMINISTRATIVE OR LANGUAGE STAFF PAID FROM OPERATIONAL APPROPRIATIONS FOLLOWS FROM THE VERY PROVISIONS OF TITLE VIII OF THE STAFF REGULATIONS WHICH INTRODUCES VARIOUS DIFFERENCES OF TREATMENT BETWEEN THOSE TWO CATEGORIES OF STAFF IN CONSIDERATION OF THE SPECIAL FEATURES OF THEIR DUTIES .
16 IT FOLLOWS FROM THE FOREGOING THAT WHEN VACANCY NOTICE NO 120 ESTABLISHED AN ADDITIONAL DIFFERENCE BETWEEN THOSE CATEGORIES IT WAS JUSTIFIED BY THE NEED TO APPLY THE DECISION OF 23 JULY 1975 IN ACCORDANCE WITH THE DECISIONS TAKEN BY THE COUNCIL IN RELATION TO RESEARCH AND WITH THE BUDGETARY RULES ON ALLOCATION OF APPROPRIATIONS . THE APPLICANT HAS THEREFORE NO GROUND FOR MAINTAINING THAT VACANCY NOTICE NO 120 UNLAWFULLY DISCRIMINATED BETWEEN OFFICIALS OF THE COMMISSION .
17 THE APPLICANT ' S FIRST FOUR SUBMISSIONS MUST THEREFORE BE DISMISSED .
FIFTH SUBMISSION
18 FINALLY THE APPLICANT CLAIMS THAT THE DECISION OF 23 JULY 1975 ON THE SYSTEM OF ROTATION OF OFFICIALS ASSIGNED TO NON-MEMBER COUNTRIES WAS UNLAWFUL SINCE IT WAS IN BREACH OF THE PROVISIONS OF ARTICLE 110 OF THE STAFF REGULATIONS INASMUCH AS THE STAFF COMMITTEE AND THE STAFF REGULATIONS COMMITTEE WERE NOT CONSULTED AND THERE WAS INSUFFICIENT PUBLICITY .
19 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 17 DECEMBER 1981 IN CASE 791/79 DEMONT V COMMISSION ( 1981 ) ECR 3105 THE DECISION OF 23 JULY 1975 IS NOT A GENERAL PROVISION FOR GIVING EFFECT TO THE STAFF REGULATIONS AS REFERRED TO IN ARTICLE 110 OF THOSE REGULATIONS BUT FLOWS FROM THE GENERAL POWER WHICH EACH INSTITUTION HAS TO ORGANZIE ITS OWN DEPARTMENTS IN THE INTERESTS OF THEIR EFFICIENT WORKING .
20 IT FOLLOWS THAT WITHOUT ITS BEING NECESSARY TO DECIDE UPON ITS ADMISSIBILITY THE SUBMISSION THAT THE FORMALITIES OF ARTICLE 110 OF THE STAFF REGULATIONS WERE DISREGARDED IS INVALID AND MUST BE REJECTED .
Decision on costs
COSTS
21 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
22 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .
23 HOWEVER, PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BROUGHT BY OFFICIALS OF THE COMMUNITIES, THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .