61985CJ0267_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 267/85
MARCEL LUTTGENS, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN STEINSEL ( LUXEMBOURG ), REPRESENTED BY MARCEL SLUSNY OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE AT THE APPLICANT ' S OFFICE, OFFICE A 2/60, COMMISSION OF THE EUROPEAN COMMUNITIES, JEAN MONNET BUILDING,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY DIMITRIOS GOULOUSSIS, ITS LEGAL ADVISER, ACTING AS AGENT, ASSISTED BY CHARLES-ETIENNE GUDIN, OF THE PARIS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGIOS KREMLIS, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S REFUSAL TO CONSIDER THE APPLICANT FOR A POST OF HEAD OF DIVISION, THE PROMOTION PROCEDURE AND THE REASSIGNMENT OF THE APPLICANT ON HIS REINSTATEMENT,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 3 SEPTEMBER 1985 MARCEL LUTTGENS, A REVISER IN THE FRENCH TRANSLATION DIVISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN LUXEMBOURG, SEEKS THE ANNULMENT OF THE COMMISSION ' S REFUSAL TO CONSIDER HIM FOR A POST OF HEAD OF DIVISION, THE PROMOTION PROCEDURE FOR THAT POST AND HIS REASSIGNMENT ON REINSTATEMENT .
2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS, THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
3 IN ITS REJOINDER THE COMMISSION STATED, IN CONTRADICTION TO WHAT IT HAD MAINTAINED PREVIOUSLY, THAT IT HAD IN FACT CONSIDERED MR LUTTGENS ' S APPLICATION FOR PROMOTION TO THE POST OF HEAD OF DIVISION BUT HAD REJECTED IT, SELECTING A DIFFERENT CANDIDATE ON GROUNDS OF MERIT .
4 AT THE HEARING THE APPLICANT WITHDREW THE PART OF HIS APPLICATION SEEKING THE ANNULMENT OF THE COMMISSION ' S DECISION, WHICH HE HAD ASSUMED HAD REFUSED TO CONSIDER HIM FOR THE POST . THE REASON HE GAVE FOR WITHDRAWING THAT PART OF HIS APPLICATION WAS THAT IF THE COMMISSION ' S DECISION AS SET OUT IN THE REJOINDER HAD BEEN NOTIFIED TO HIM WHEN IT WAS ADOPTED HE WOULD NOT, PERHAPS, HAVE BROUGHT THIS ACTION AND IN ANY CASE WOULD NOT HAVE DONE SO IN THE SAME TERMS OR ON THE SAME GROUNDS .
5 THE APPLICANT REQUESTED THE COURT AT THE HEARING TO GRANT HIM COMPENSATION FIXED AT THE SYMBOLIC AMOUNT OF ONE ECU AND TO ORDER THE COMMISSION TO PAY THE COSTS IN VIEW OF THE ALLEGED FAILURE OF THE COMMISSION TO INFORM HIM IN DUE TIME THAT HE HAD BEEN CONSIDERED FOR THE POST IN QUESTION .
6 THE CLAIM FOR COMPENSATION CONSTITUTES A NEW CLAIM WHICH IS NOT ADMISSIBLE AT THE STAGE OF THE ORAL PROCEEDINGS .
7 IT MUST, THEREFORE, BE DISMISSED .
8 THE APPLICANT ALSO WITHDREW AT THE HEARING THE CLAIMS IN THE APPLICATION REGARDING THE ANNULMENT OF THE PROMOTION PROCEDURE . ACCORDINGLY, IT ONLY REMAINS FOR THE COURT TO EXAMINE THE CLAIMS IN THE APPLICATION CONCERNING THE CIRCUMSTANCES OF HIS REINSTATEMENT ON THE EXPIRY OF HIS LEAVE ON PERSONAL GROUNDS .
9 THE APPLICANT SUBMITS THAT BY REINSTATING HIM AS A REVISER, WHEN PRIOR TO HIS LEAVE HE HAD BEEN PERFORMING THE DUTIES OF HEAD OF A SPECIAL DEPARTMENT WHICH WERE EQUIVALENT TO THOSE OF HEAD OF A TRANSLATION GROUP UNDER ANNEX I TO THE STAFF REGULATIONS, THE COMMISSION ACTED TO THE DETRIMENT OF HIS PERSONAL STANDING AND, ABOVE ALL, TO THE DETRIMENT OF HIS CHANCES OF BEING ABLE TO QUALIFY FOR PROMOTION . THE DAMAGE LIES IN THE FACT THAT IN HIS NEW POSITION HE IS NO LONGER RESPONSIBLE, AS HE WAS BEFORE, FOR THE ACTIVITIES OF A GROUP, SO THAT HIS PERSONAL STATUS HAS BEEN DIMINISHED AND HE IS NO LONGER ABLE TO DO ADMINISTRATIVE WORK OF A KIND MORE APT TO ENABLE HIM TO QUALIFY FOR PROMOTION .
10 IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT AND THE ARGUMENT PRESENTED AT THE HEARING REVEALED THAT THE APPLICANT, AN OFFICIAL IN GRADE L/A 4, ENTERED THE COMMISSION ' S SERVICE AS A TRANSLATOR ON 15 JUNE 1964, WAS APPOINTED HEAD OF THE FRENCH TRANSLATION DEPARTMENT, A SPECIAL DEPARTMENT, IN LUXEMBOURG ON 18 MARCH 1983 AND, AFTER TAKING LEAVE ON PERSONAL GROUNDS FROM 1 MARCH 1984, WAS REINSTATED AS A REVISER IN THE FRENCH TRANSLATION DIVISION IN LUXEMBOURG ON 1 OCTOBER 1984 . WHILE HE WAS ON LEAVE THE COMMISSION REORGANIZED ITS FRENCH TRANSLATION UNITS AND THE PRINCIPAL RESULT OF THAT REORGANIZATION WAS TO CONVERT THEM INTO A DIVISION . THE REORGANIZATION ENTAILED ABOLISHING THE POST OF HEAD OF THE SPECIAL DEPARTMENT, WHICH IN ANY CASE IS NOT PROVIDED FOR IN ANNEX I TO THE STAFF REGULATIONS . IN SO FAR AS THE DUTIES OF HEAD OF A SPECIAL DEPARTMENT MAY BE REGARDED, AS THEY MAY IN THIS CASE, AS EQUIVALENT TO THOSE OF HEAD OF A TRANSLATION GROUP, THEY MUST BE REGARDED AS EQUIVALENT TO THE DUTIES OF A REVISER, SINCE ANNEX I TO THE STAFF REGULATIONS PLACES THOSE POSTS AT THE SAME LEVEL .
11 THE APPLICANT REMAINS RESPONSIBLE FOR THE WORK OF OTHER TRANSLATORS AND IN HIS NEW POSITION HE HAS THE OPPORTUNITY, OWING TO THE NATURE OF HIS WORK AND THE RESPONSIBILITIES ATTACHED TO IT, OF QUALIFYING FOR PROMOTION IN THE FUTURE, SO THAT HIS PROSPECTS HAVE NOT BEEN COMPROMISED BY HIS REASSIGNMENT . THE MERE FACT THAT HIS DUTIES IN HIS NEW POST ARE NOT THE SAME AS THOSE HE PERFORMED PREVIOUSLY IS NOT SUFFICIENT TO JUSTIFY THE CONCLUSION THAT HIS INTERESTS HAVE BEEN PREJUDICED PROVIDED THAT HE WAS REINSTATED, AS IN THIS CASE, IN THE SAME GRADE AS BEFORE AND IN DUTIES CORRESPONDING TO THAT GRADE .
12 CONSEQUENTLY, THE APPLICANT ' S COMPLAINTS ARE NOT WELL-FOUNDED AND THE APPLICATION MUST BE DISMISSED .
Decision on costs
COSTS
13 ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT IN ACTIONS BROUGHT BY OFFICIALS THE COSTS INCURRED BY THE INSTITUTIONS MUST BE PAID BY THEM . ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS ; ARTICLE 69 ( 3 ) PROVIDES, HOWEVER, THAT THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL . IN THIS CASE THE COMMISSION ' S CONDUCT IN ALLOWING THE IMPRESSION TO BE GIVEN THAT NO DECISION HAD BEEN TAKEN ON THE SUBSTANCE OF THE REQUEST FOR PROMOTION BECAUSE IT COULD NOT BE TAKEN INTO CONSIDERATION, AND IN INDICATING ONLY IN THE REJOINDER THAT A FORMAL DECISION GIVING THE POST TO ANOTHER CANDIDATE HAD BEEN ADOPTED AFTER A COMPARATIVE EXAMINATION OF THE CANDIDATES '
MERITS, INFLUENCED THE WAY IN WHICH THE APPLICANT FORMULATED HIS APPLICATION AND INDUCED HIM TO MAKE SUBMISSIONS ON WHICH HE WOULD NOT HAVE RELIED HAD HE KNOWN THAT HIS REQUEST HAD BEEN DULY CONSIDERED . IT THEREFORE APPEARS EQUITABLE, IN VIEW OF THE EXTRA COSTS INCURRED AS A RESULT BY THE APPLICANT, TO ORDER THE COMMISSION TO PAY ONE HALF OF THE APPLICANT ' S COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION .
( 2)ORDERS THE COMMISSION TO PAY ONE HALF OF THE APPLICANT ' S COSTS IN ADDITION TO ITS OWN .