Judgment of the Court (First Chamber) of 13 May 1970. - Andreas Reinarz v Commission of the European Communities. - Case 46-69.



European Court reports 1970 Page 00275

Danish special edition Page 00053

Greek special edition Page 00311

Portuguese special edition Page 00347



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - POST - RIGHT TO A PARTICULAR POST - NONE - PERSONAL PREFERENCE - LEGITIMATE INTEREST RECOGNIZED BY STAFF REGULATIONS

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 4 )

2 . OFFICIALS - MEASURE TERMINATING EMPLOYMENT - ANNULMENT BY THE COURT OF JUSTICE - POST FOR WHICH THE OFFICIAL CONCERNED COULD HAVE COMPLETED - APPOINTMENT OF ANOTHER OFFICIAL - UNLAWFUL IN THE ABSENCE OF AN ESSENTIAL FACTOR OF ASSESSMENT

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 7 )

3 . OFFICIALS - GRADE AND POST - EQUIVALENCE - RIGHT OF OFFICIALS

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLES 5 AND 7 )

Summary

1 . WHILST THE STAFF REGULATIONS DO NOT GIVE OFFICIALS A RIGHT TO ANY PARTICULAR POST THAT DOES NOT MEAN THAT AN OFFICIAL MAY NOT HAVE A LEGITIMATE INTEREST IN PREFERRING ONE POST TO ANOTHER .

2 . WHERE A DECISION TERMINATING THE EMPLOYMENT OF AN OFFICIAL IS SUBSEQUENTLY ANNULLED BY THE COURT OF JUSTICE, IT MAY HAVE THE CONSEQUENCE OF RENDERING UNLAWFUL THE APPOINTMENT OF ANOTHER OFFICIAL TO A POST FOR WHICH THE OFFICIAL WHO WAS THE SUBJECT OF THE ANNULLED DECISION TERMINATING HIS EMPLOYMENT COULD HAVE APPLIED, THE ADMINISTRATION HAVING MADE THE APPOINTMENT WITHOUT HAVING BEEN ABLE TO TAKE ACCOUNT IN ORDER FOR IT TO BE ABLE TO EXERCISE ITS DISCRETION FULLY .

3 . OFFICIALS ARE ENTITLED TO RELY ON THE RULE OF EQUIVALENCE BETWEEN GRADE AND POST .

Parties

IN CASE 46/69

ANDREAS REINARZ, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 3, GROENSTRAAT, DWORP ( BRABANT ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER, 84 GRAND-RUE, REPRESENTED AND ASSISTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D' APPEL, 272, AVENUE BRUGMANN, UCCLE, BRUSSELS 18, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4, BOULEVARD ROYAL, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, DEFENDANT,

Subject of the case

APPLICATION FOR :

- THE ANNULMENT OF THE DECISIONS OF THE COMMISSION BY WHICH :

( 1 ) MR REINARZ WAS GIVEN A POST AS PRINCIPAL ADVISER,

( 2 ) MR DOUSSET WAS APPOINTED DIRECTOR IN THE DIRECTORATE GENERAL FOR TRANSPORT, AND

( 3 ) THE COMMISSION REFUSED TO GRANT A CAR ALLOWANCE FOR THE PERIOD FROM 1 OCTOBER 1968 TO 30 JULY 1969,

- AND FOR AN ORDER THAT THE COMMISSION PAY THE ARREARS OF THE SAID CAR ALLOWANCE,

Grounds

1 THE APPLICANT IS FOR THE ANNULMENT :

( 1 ) OF THE DECISION OF THE COMMISSION OF 18 JUNE 1969 IN SO FAR AS IT ALLOCATES THE APPLICANT TO A POST AS PRINCIPAL ADVISER IN GRADE A 2 IN THE DIRECTORATE GENERAL FOR TRANSPORT;

( 2 ) OF THE DECISION OF THE COMMISSION OF 15 JANUARY 1969 APPOINTING MR JACQUES DOUSSET DIRECTOR IN THE DIRECTORATE GENERAL FOR TRANSPORT;

( 3 ) THE DECISION OF THE COMMISSION TO REFUSE THE APPLICANT A CAR ALLOWANCE FOR THE PERIOD 1 OCTOBER 1968 TO 30 JULY 1969 .

2 THE FIRST COMPLAINTS TO BE EXAMINED ARE THOSE DIRECTED AGAINST THE APPOINTMENT OF MR DOUSSET .

3 IN ITS JUDGMENT OF 6 MAY 1969 THE COURT OF JUSTICE ANNULLED, INTER ALIA, THE DECISION OF THE DEFENDANT OF 26 JUNE 1968 WHEREBY, PURSUANT TO ARTICLE 4 OF REGULATION NO 259/68, THE APPLICANT' S EMPLOYMENT WAS TERMINATED .

4 THIS WAS THE DECISION, LATER ANNULLED, WHICH PREVENTED THE APPLICANT FROM APPLYING FOR A POST AS DIRECTOR IN THE DIRECTORATE GENERAL FOR TRANSPORT .

5 WHILST THE STAFF REGULATIONS DO NOT GIVE OFFICIALS A RIGHT TO ANY PARTICULAR POST, THAT DOES NOT MEAN THAT AN OFFICIAL MAY NOT HAVE A LEGITIMATE INTEREST IN PREFERRING ONE POST TO ANOTHER .

6 THIS, IN PARTICULAR, IS WHY THE STAFF REGULATIONS MAKE IT POSSIBLE FOR AN OFFICIAL TO BE TRANSFERRED ON HIS REQUEST; MOREOVER SUCH PREFERENCE BETWEEN POSTS, EVEN THOSE IN THE SAME GRADE, MAY BE IN THE INTERESTS OF THE SERVICE .

7 THE RESULT OF THE DECISION ANNULLED BY THE JUDGMENT OF 6 MAY 1969 WAS THAT THE DEFENDANT, WHEN IT APPOINTED MR DOUSSET ON 15 JANUARY 1969, MADE ITS CHOICE WITHOUT HAVING AT ITS DISPOSAL A FACTOR OF ASSESSMENT WHICH OUGHT TO HAVE BEEN TAKEN INTO ACCOUNT IN ORDER FOR IT TO BE ABLE TO EXERCISE ITS DISCRETION FULLY .

8 THE APPLICATION IS ACCORDINGLY WELL FOUNDED ON THIS POINT .

9 ON THE OTHER HAND THE DECISION OF 18 JUNE 1969 APPOINTING THE APPLICANT TO A POST AS PRINCIPAL ADVISER DOES NOT ADVERSELY AFFECT HIM .

10 IN FACT THE POSTS OF DIRECTOR AND OF PRINCIPAL ADVISER FALL WITHIN THE SAME GRADE AND THE DIFFERENCE BETWEEN THEIR RESPECTIVE POWERS AND DUTIES, WHILST IT MAY JUSTIFY A PERSONAL PREFERENCE FOR ONE OR THE OTHER POST, YET DOES NOT INFRINGE THE RULE OF EQUIVALENCE BETWEEN GRADE AND POST ON WHICH OFFICIALS ARE ENTITLED TO RELY .

11 FURTHERMORE THIS DECISION IS NOT SUCH AS TO HINDER THE COMMISSION IN THE EXERCISE OF ITS DISCRETIONARY POWER WHEN, FOLLOWING THE PRESENT JUDGMENT, IT COMES TO FILL THE VACANT POST OF DIRECTOR IN THE DIRECTORATE GENERAL FOR TRANSPORT .

12 THE APPLICATION ON THIS POINT IS INADMISSIBLE .

13 THE APPLICANT FURTHER ASKS FOR THE ANNULMENT OF THE REFUSAL BY THE DEFENDANT TO GRANT HIM THE CAR ALLOWANCE ALLOWED FOR BY ARTICLE 15 OF ANNEX VII TO THE STAFF REGULATIONS FOR THE PERIOD PRIOR TO HIS REINSTATEMENT IN GRADE A 2 .

14 THE CAR ALLOWANCE, WHILST IT IS A FIXED AMOUNT, IS JUSTIFIED ONLY IF THE VEHICLE CAN BE USED IN THE INTERESTS OF THE SERVICE .

15 HOWEVER, DURING THE PERIOD IN QUESTION THE APPLICANT HAD BEEN RELIEVED OF HIS DUTIES AND RESPONSIBILITIES WITHIN THE SERVICE .

16 ACCORDINGLY, THE APPLICATION IS UNFOUNDED ON THIS POINT .

Decision on costs

17 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE THE UNSUCCESSFUL PARTY SHALL PAY THE COSTS .

18 HOWEVER, ACCORDING TO ARTICLE 70 OF THE RULES OF PROCEDURE THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS INVOLVING SERVANTS OF THE COMMUNITIES ARE PAYABLE BY THE FORMER .

19 IT IS ALSO APPROPRIATE TO APPLY IN THE PRESENT CASE ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE ACCORDING TO WHICH THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

20 SINCE BOTH PARTIES HAVE FAILED IN ONE OR SEVERAL OF THEIR CLAIMS, THE APPLICANT SHOULD BEAR ONE HALF OF HIS OWN COSTS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE COMMISSION OF 15 JANUARY 1969 APPOINTING MR JACQUES DOUSSET DIRECTOR IN THE DIRECTORATE FOR HARMONIZATION, COORDINATION AND FINANCIAL CONTROL OF INFRASTRUCTURES;

2 . DISMISSES THE APPLICATION AGAINST THE DECISION OF 18 JUNE 1969 AS INADMISSIBLE;

3 . DISMISSES THE APPLICATION IN SO FAR AS IT RELATES TO THE DECISION OF THE COMMISSION NOT TO PAY THE APPLICANT THE FIXED TRAVEL ALLOWANCE;

4 . ORDERS THE DEFENDANT TO PAY ONE HALF OF THE COSTS OF THE APPLICANT .