JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

11 July 1997

Case T-108/96

Mireille Cesaratto

v

European Parliament

‛Officials — Article 41 of the Staff Regulations — Action for annulment of a decision rejecting a request for assignment of non-active status’

Full text in French II-653

Application for:

annulment of the decision of the Parliament of 28 November 1995 rejecting a request by the applicant for her to be assigned non-active status within the meaning of Article 41 of the Staff Regulations of Officials of the European Communities.

Decision:

Application dismissed.

Abstract of the Judgment

Within the framework of the final adoption of the general budget of the European Union for the financial year 1995 (OJ 1994 L 369. p. 1, at pp. 156 and 157), the Parliament decided to initiate the procedure for assigning officials non-active status laid down by the first subparagraph of Artide 41(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) in order to abolish a maximum of 15 posts, including three in Category B.

In implementation of that decision the appointing authority consulted the Joint Committee and decided in June 1995, pursuant to the second subparagraph of Article 41(2) of the Staff Regulations, to abolish, inter alia, the following three Category B posts: Post V/B/1779 in the crèche, occupied at that time by Mrs K.; Post III/B/1626in the General Coordination Division of the Directorate-General for Information and Public Relations (DG 3), occupied at that time by Mrs Z.; and Post VI/B/1499 (head messenger) in the Directorate-General for Administration (DG 6), vacant since 1 February 1994 when Mr M., who had held that post, retired.

Finally, the appointing authority, after consulting the Joint Committee and the Reports Committee, drew up, pursuant to the second and third subparagraphs of Article 41(2) of the Staff Regulations, the list of officials assigned non-active status.

Since MrsK. and Mrs Z., who occupied Post V/B/1779 and Post III/B/1626 respectively, had expressed the wish to be assigned non-active status, they were automatically entered on that list, in accordance with the final sentence of the third subparagraph of Article 41(2).

Following the decision to abolish the vacant Post VI/B/1499, 10 Category B officials volunteered for a transfer to that post followed by assignment of non-active status.

The appointing authority followed the opinion of the Reports Committee and granted the request made by Mrs C.

The applicant, Mireille Cesaratto, is a Parliament official in Grade B 1.

By letter of 20 December 1993 she asked to be assigned non-active status under Article 41 of the Staff Regulations. Since the Parliament had not, at that time, adopted a measure to reduce the number of posts, that request could not be acted upon.

Following the decision by the Parliament to abolish a maximum of 15 posts, including three in Category B, the applicant, by letter of 23 October 1995, submitted a request to the Parliament under Article 90 of the Staff Regulations, in which she enquired about the criteria applied on the assignment of non-active status and asked to be assigned that status.

By letters of 28 November 1995 the Secretary-General of the Parliament and the Director-General of the Directorate-General for Personnel rejected her request.

Substance

Assignment of non-active status to Mrs Z.

The applicant relies on two pleas, that the principle of equal treatment was infringed and that powers were misused.

The plea concerning infringement of the principle of equal treatment

The principle of equal treatment constitutes a superior rule of law. However, it is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified (paragraph 33).

See: 83/76, 94/76, 4/77, 15/77 and 40/77 HNL v Council and Commission [1978] ECR 1209, para. 5; 106/83 Sermide v Cassa ConguaglioZucherro [1984] ECR 4209, para. 28; C-174/89 Hoche v Bundesanstalt für Landwirtschaftliche Marktordnung [1990] ECR I-2681, para. 25; T-489/93 Unifruit Hellas v Commission [1994] ECR II-1201, para. 42; T-93/94 Becker v Court of Auditors [1996] ECR II-141, para. 26

Since Mrs Z. was in a different situation from the applicant, the principle of equal treatment was not infringed (paragraph 36).

The plea concerning a misuse of powers

The concept of misuse of powers refers to the use by an administrative authority of its powers for a puipose other than that for which they were conferred. A decision is vitiated by misuse of powers only where it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (paragraph 46).

See: T-586/93 Kotzonisv ESC[ 1995] ECRSC II-203, para. 73; T-178/95 and T-179/95 Picciolo and Caló v Committee of the Regions [1997] ECRSC II-155. para. 100

The Community institutions have a broad discretion to organize their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition however that the staff are assigned in the interests of the service and in conformity with the principle of assignment to an equivalent post. Such a discretion is indispensable in order to achieve effective organization of work and to adapt the organization to varying needs (paragraph 47).

See: 263/81 List v Commission [1983] ECR 103, para. 15; 69/83 Lux v Court of Auditors Į1984] ECR 2447. para. 17; 19/87 Hecq v Commission [1988] ECR 1681, para. 6; T-46/89 Pinone v Commission [1990] ECR II-577. para. 32, confirmed by C-378/90 P Pitrone v Commission [1992] ECR I-2375

The organization and functioning of the service are solely a matter for the institution and the administration alone is responsible for the organization of the departments. It is for it alone to assess the needs of the service and assign the staff at its disposal accordingly (paragraph 48).

See: 16/67 Labeyrie v Commission [1968] ECR 293; 61/76 Geist v Commission [1977] ECR 1419; T-46/89 Pitrone v Commission, cited above, para. 60

The Community institutions have the freedom to structure the various administrative units, taking account of a range of factors such as the nature and scope of the tasks assigned to them and the budgetary possibilities (paragraph 49).

See: 178/80 Bellardi-Ricci and Others v Commission [1981] ECR 3187, para. 19; T-108/89 Scheuer v Commission [1990] ECR II-411, para. 41 ; T-163/89 Sebastiani v Parliament [1991] ECR II-715, para. 33; T-109 /92 LacruzBassols v Court of Justice [1994] ECRSC II-105, para. 88

That freedom means that they may abolish posts and alter the allocation of tasks, in the interests of organizing the workload more effectively (paragraph 50).

It also means that they have the power to reallocate tasks previously carried out by the official in the abolished post, without its being necessary, in order for that post to be abolished, that the totality of the tasks set be carried out by a smaller number of people than before the reorganization. Furthermore, abolition of a post does not necessarily mean that the tasks which it comprised are redundant (paragraph 51).

Assignment of non-active status to Mrs C.

The applicant relies on two pleas, that powers were misused and that the principle of equal treatment was infringed. As she puts forward similar arguments in support of both those pleas, they should be analysed together.

Where, as in this case, a choice must be made between officials who have volunteered for the assignment of non-active status, the appointing authority must, in accordance with the first sentence of the third subparagraph of Article 41 (2) of the Staff Regulations, take into account their ability, efficiency, conduct in the service, family circumstances and seniority. While it must limit its assessment to those five criteria, it enjoys an element of discretion in the application of each criterion and in the weight which they must be given (paragraph 80).

The exercise of that discretion presupposes scrupulous examination of the volunteers' files and is tempered by the obligation to consider carefully and impartially all the relevant aspects of the individual case (paragraph 81).

See: C-35/92 P Parliament v Frederiksen [1993] ECR I-991, para. 15

Review by the Court is limited to the question whether the appointing authority has used its power in a manifestly incorrect way or for a purpose other than that for which it was conferred (paragraph 82).

See: T-11/91 Sditoli v Council [1992] ECR II-203. paras 51 and 70

In this case, the appointing authority did not exercise its discretion in a manifestly incorrect way. It scrupulously examined the files of the applicant and Mrs C. and considered carefully and impartially all the relevant aspects of each request. The applicant has been unable to prove on the basis of objective, relevant and consistent evidence that the appointing authority used its power for a purpose other than that for which it was conferred upon it. Furthermore, it was lawful for the appointing authority, on completion of its examination of the requests, to consider in the exercise of its wide discretion that the applicant and the candidate who was accepted, Mrs C, were not in comparable situations having regard to the wording and the weighting of the criteria laid down in the first sentence of the third subparagraph of Article 41(2) of the Staff Regulations (paragraphs 99 and 100).

Application for an additional measure of inquiry

The Court granted the application in part in that it asked the defendant on 11 March 1997, before the opening of the oral procedure, to produce, under a measure of organization of procedure adopted pursuant to Article 65(b) of the Rules of Procedure:

— the decision adopted by the appointing authority under the second subparagraph of Article 41(2) of the Staff Regulations establishing the types of post affected by the post-reducing measure;

— the opinion given by the Joint Committee on that occasion;

— the file on the basis of which it consulted the Reports Committee and the Joint Committee for the purpose of drawing up the list of officials affected by that measure;

— the opinions given by those bodies;

— the definitive list of officials assigned non-active status following that procedure (paragraph 104).

The other heads of the application for a measure of inquiry are not relevant. The documents in question are not capable of altering the assessment of the pleas put forward by the applicant; its pleas must be rejected now on the basis of the documents available to the Court, including those produced by the defendant pursuant to the measure of organization of procedure referred to above (paragraph 105).

Operative part:

The application is dismissed.