OPINION OF MR ADVOCATE GENERAL REISCHL

DELIVERED ON 25 OCTOBER 1979 ( 1 )

Mr President,

Members of the Court,

Today's case is concerned with the question of the grading of an official. On 1 February 1958 with the establishment of the European Economic Community and the European Atomic Energy Community the applicant, a doctor of laws and graduate linguist of German nationality entered the service of the Council of Ministers as Head of the German Translation Section after already having assisted in the committees concerned with the drafting and translation of the Treaties. When the Staff Regulations of Officials of the European Communities entered into force on 1 January 1962 he was appointed an official in Grade L/A 4 as Head of Section in the Translation Department. By decision of the Secretary-General of the Council of 25 May 1973 he, along with other heads of the individual translation sections, was promoted with effect from 1 January 1973 and assigned to a post as Head of Translation Division, Grade L/A 3.

For a better understanding of the case it should be realized that the Translation Department of the Council is divided into six divisions corresponding to the number of official languages of the Communities and that each has a head of division. There is a Head of Translation Department who has an assistant. In the context of the organization of the General Secretariat of the Council, however, the Translation Department is not, as might prime facie be thought, a separate directorate, but part of Directorate II — Administration and Translation — which has a director and is in turn part of Directorate General A. The previous Head of the Translation Department, Mr Noack, was in Grade L/A 3 and a year prior to his retirement on pension was appointed ad personem to Grade A 2.

After Mr Noack's retirement on 13 January 1974 the Secretary-General of the Council wrote to the applicant on 30 April 1974 as follows:

‘Note à l'attention de M. Loebisch

J'ai l'honneur de vous informer qu'à partir du 1er avril 1974 vous êtes mis à la disposition de la Direction Générale A, Direction II: Opérations — Service linguistique, en qualité de Chef du Service linguistique.’

The applicant assumed on the basis of this letter that he would forthwith be appointed, like his precedessor, to Grade A 2. When his expectations were not fulfilled he submitted a request on 12 May 1978 to the appointing authority under Article 90 (1) of the Staff Regulations that the L/A 3 post which he held should be converted to one of A 2, the only grade corresponding to the work the applicant had done as Head of the Translation Department since 1974. He supplemented this request with a letter of 17 May 1978 stating that the regrading should take effect at the latest from4 May 1978, the day on which Council Regulation (Euratom, ECSC, EEC) No 912/78 of 2 May 1978 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities (Official Journal L 119 of 3 May 1978, p. 1) was to enter into force. Previously, in the list of basic posts and corresponding career brackets in Part A of Annex I to the Staff Regulations, the basic posts ‘Head of Translation Division’ and ‘Head of Interpretation Division’ were classified as Grades L/A 3 and L/A 4, whereas now under Article 13 of the said regulation the basic post ‘Head of a Translation or Interpretation Division’ is classified as Grade L/A 3. Grade L/A 4 is now reserved only for heads of translation or interpretation sections. In the applicant's view by making this amendment the Council was taking account of the fact that the translation department is composed of several divisions each of which is under a head who has Grade L/A 3. Consequently the head of the all-embracing Language Department unit cannot have the same rank as the heads of divisions which are subordinate to him.

When these requests were not granted, the applicant submitted by letter dated 20 September 1978 a complaint to the appointing authority under Article 90 (2) of the Staff Regulations. This complaint in turn remained unsuccessful and the applicant made the present application on 25 January 1979. He claims that the Court should declare that the post of Head of the Language Department of the Council to which he has been appointed is to be ranked in Grade A 2 and that in consequence he should be graded in Grade A 2 with effect from 1 April 1974 or at least from 4 May 1978 and further that the defendant should be ordered to grade him in Grade A 2 from the said dates.

The applicant complains in the first place of infringement of Article 5 of the Staff Regulations of Officials of the European Communities and of Part A of Annex I thereto governing the basic posts and corresponding career brackets in each category and in the language ‘service’. He also complains of infringement of general principles of law such as the principle of the correspondence of posts and grades, the principle that posts and grades are to be organized according to rank in the European civil service and the principle of good administration. Since the administration did not have regard to these principles it has been guilty of a misuse of powers.

In particular he submits that the note from the Secretary-General of 30 April 1974appointed him Head of the Language Department as from 1 April 1974. As such he works at a level corresponding to the post of a director in Grade A 2. Thus he is in charge of an administrative unit comprising some 300 officials including some 250 graduates and has under him seven officials in Grade L/A 3, namely the six Heads of the Translation Divisions and his deputy, on whose work he has to make the first report. In his view the Council Decision of 7 October 1963 on the tasks and powers of officials of the General Secretariat of the Councils of the European Communities supports his claim that he has the post of a director in Grade A 2. The decision provides that a director is head of an important administrative unit and directly responsible to a director general or, exceptionally, the institution itself. With the entry into force of Council Regulation No 912/78 of 4 May 1978 at the latest it is clear that in law the language department is an administrative unit above the division and must therefore logically have a director as head. In the applicant's view the fact that the appointment was made as a result of a proposal by the Promotion Committee is evidence that the post of Head of the Language Department is higher than that of head of a translation division and that the appointment must therefore be regarded as a promotion. The fact that under Part A of Annex I to the Staff Regulations only Grades L/A 3 to L/A 8 are provided for the language ‘service’ is not evidence against such a higher post, since it is -clearly apparent from the report of the Working Party on the Staff Regulations of 9 February 1977 (Doc. R 269/77 (STAT 9) (FIN 59)) that the post of director of a language department may be filled equally well by an official from the general Category A as from the language ‘service’. Article 29 (2) of the Staff Regulations provides that a procedure other than the competition procedure may be adopted by the appointing authority for the recruitment of Grade A 1 or A 2 officials. Since after the retirement of his predecessor a corresponding A 2 post became vacant, it is not a question of creating a new post or giving a higher classification to an existing post, but simply of finding that the post held by the applicant belongs to Grade A 2.

By rejecting such recognition the appointing authority leaves the applicant with the same grade as some of those under him. Further it is damaging to his career and reputation that he is made subordinate to a director with the title ‘Director of Operations/Translation’ who is assisted by a head of division who, in the event of the director's absence, deputizes for him.

The Council on the other hand points out that the letter of 30 April 1974 from the Secretary General did not appoint the applicant to a vacancy in a higher grade but simply entrusted him with the tasks of a Head of the Language Department. The purpose of the latter description is to describe the tasks of an official within the department and has nothing to do with his status under the Staff Regulations. In Part A of Annex I to the Staff Regulations the basic post of director is expressly classified as Grade A 2, whereas the post of Head of Language Department is not provided for in the list of categories contained therein. Moreover the appointing authority did not have a vacancy available since the applicant's predecessor, Mr Noack, had simply been appointed ad personam to Grade A 2 for a year prior to his retirement and the corresponding vacancy had already been disposed of otherwise with effect from 16 January 1974. The applicant is seeking in the proceedings a promotion to which he has no claim. The appointing authority is not bound to ask the budgetary authorities to create a new post since on the one hand in organizing the work it is bound in principle to have regard only to the interests of the department and on the other hand the applicant's activities differ from the tasks and powers of a director.

The decisive question thus is how the Secretary-General's communication of 30 April 1974 is to be classified.

Pursuant to Article 6 of the Staff Regulations each post must be defined. According to the first paragraph of Article 4 of the Staff Regulations no appointment or promotion is to be made for any purpose other than that of filling a vacant post defined in the grade. This means that appointment to a vacant post means at the same time being given a particular grade. From this it further follows that basically the rank of an official is determined only by the post to which he is appointed and not according to his post in the sense of a functional collection of tasks and powers.

Further according to Article 4 of the Staff Regulations an appointment or promotion is effective only if there is a vacant post within the meaning of a ‘poste budgétaire’.

The present case therefore depends on whether, as the applicant alleges, the appointing authority had a permanent post in Grade A 2 available at the time of the alleged appointment. This question must however clearly be answered in the negative, since, as we have heard from the Council, the permanent post of Head of the Language Department has always been an L/A 3 post and the appointment of the applicant's predecessor only a year before his retirement was of an honorary nature and on a personal basis. The appointing authority had however already made other arrangements on 16 January 1974 for the disposal of this post in Grade A 2, so that on 1 April 1974 there remained available only a post in Grade L/A 3 corresponding to the rank which the applicant already had. For this reason alone an effective promotion must be ruled out and a decision to transfer is all that the letter in question could have contained.

The form of the letter in question is however evidence both against promotion and transfer. According to Article 7 (1) of the Staff Regulations ‘the appointing authority shall … assign each official by appointment or transfer to a post in his category or service which corresponds to his grade’. ‘By appointment’ accordingly means that the document making the appointment, issued in accordance with the second paragraph of Article 25 of the Staff Regulations, must itself express the assignment to an available post with the grade and basic post appertaining thereto in the interests of clearly determining the legal position of the official.

The Council decision of 25 May 1973 promoting the applicant to Grade L/A 3 satisfies these criteria. This measure assigns the applicant to the post of Head of the Translation Division (Grade L/A 3) with effect from 1 January 1973. In contrast the letter from the Director-General of 30 April 1974 is headed only ‘Note à l'attention de M. Loebisch’ and contains neither mention of a vacancy nor the grade and basic post relating thereto: it simply states ‘… à partir du 1er avril 1974 vous êtes mis à la disposition … en qualité de Chef du Service linguistique’. It is clear from this distinction that the applicant was not being promoted to a post in a higher grade. He was also not being transferred to a post in the same grade since a decision to transfer is likewise subject to the formal requirements mentioned. It is accordingly quite clear to me that the note in question, as its wording shows, was simply entrusting the applicant with other duties whilst he retained his previous post and grade.

The wording gives no assurance of promotion. Any such assurance would be legally effective only if the intention of the appointing authority to be bound by the promise were quite clear, but there is no evidence of that in the present case.

It is clear that this originally was also the view of the applicant for his request to the appointing authority under Article 90 (1) of the Staff Regulations was expressly to the effect that the L/A 3 post he then held should be converted into an A 2 post. The notification in Staff Information on 28 May 1974 in which it is stated that the applicant has been appointed Head of the Language Department with effect from 1 April 1974 cannot change the position either since naturally only a document making an appointment and not a mere communication can have substantive effect. The fact that a successor was appointed to the applicant's post as Head of the German Translation Division is likewise no evidence that the applicant was being assigned to another post. An authority is not bound as regards the use it makes of the posts which have once been allocated to it and it may therefore have assigned the successor to another vacant post. Finally promotion cannot be inferred from the fact that the measure resulted from a proposal of the Promotion Committee. First, this is only an aid to the appointing authority in proceedings which fall entirely within its competence to settle its own internal organization; further it expressed no view as to whether the applicant should be promoted to director but only as to his appointment as Head of the Language Department.

Accordingly it only remains to consider whether the applicant has a right to promotion. According to the case-law of the Court, officials, even if they fulfil the conditions for promotion, are given in principle no personal right under the Staff Regulations to promotion (cf. the judgment of 25 November 1976 in Case 123/75 Berthold Küster v Parliament [1976] ECR 1701). The Court has consistently stressed in leading cases that the interest of the service is the exclusive criterion for promotions and that the appointing authority as having responsibility for its own organization must make appointments only on the basis of a proper exercise of its discretion (cf. judgment of 16 June 1971 in Case 61/70 Gianfranco Vistosi v Commission [1971] ECR 542 and that of 15 July 1976 in Case 61/76 Jean Jacques Gerst Commission [1976] ECR 1350, Accordingly the decision of the appointing authority in exercise of its discretion is open to challenge only if the discretion has been exceeded or wrongly exercised, that is if the responsibilities of Head of the Language Department assigned to the applicant by the letter of 30 April 1974 were far to exceed the nature, importance and extent of those to be entrusted to him on the basis of his Grade L/A 3.

The applicant is certainly right in claiming that the Language Department, which employs more than 300 people including some 250 graduates, is an important administrative unit within the meaning of the Council's official description of posts of 7 October 1963. The fact that the applicant, who inter alia is concerned with administrative tasks which guarantee the smooth running of the Language Department, is at the same time in charge of the seven heads of division says in my view nothing decisive about the level of his official duties since a considerable amount of his work consists in co-ordinating the work of the Language Department. Evidence that the applicant is not in fact in charge of the Language Department is supplied by the fact that, as the Council has assured us, he carried out his duties essentially under the surveillance and responsibility of the appropriate director, that is, he does not act on his own responsibility.

In this connexion may I finally recall the case-law of the Court to the effect that even the fact that an official performs duties corresponding to a post in a higher career bracket may be a factor to be borne in mind in connexion with promotion but does not in itself justify a higher grading for the post (cf. judgment of 16 June 1971 in Case 77/70 Maurice Prelle v Commission [1971] ECR 561; that of 19 March 1975 in Gijsbertus van Reenen v Commission [1975] ECR 445; and that of 11 May 1978 in Lucienne De Roubaix v Commission [1978] ECR 1081).

To summarize therefore it may be observed that there is no basis for a finding that the appointing authority exceeded the discretion allowed it in assessing the post.

In the same way I cannot see any breach of the principle that the structure of posts is to be based on rank. The applicant is certainly right in claiming that the relationship of officials as a relationship of public law governed by the Staff Regulations involving subordination to superior officers requires a strictly ordered hierarchy of rank, but nevertheless the connexion between the order of rank and responsibility must not be overlooked. Since, as we have seen, responsibility for the Language Department lies in the last resort with the appropriate director, it seems justified to assign the applicant to a grade which is below that of the director. On the other hand we may see from the description of duties drawn up for the applicant by the Council that the individual heads of division in the Language Department are responsible in the first place for personnel management and for the daily organization of the work in the divisions. It follows from this that the applicant's responsibility in organizing the whole Language Department does not differ so essentially from that of the heads of division that the appointing authority may be reproached for acting arbitrarily and thus not in the interests of the service by assigning the applicant to the same grade as the heads of division, especially as no provision is to be found in the Staff Regulations prohibiting an official from being made subordinate to another official of the same rank, subject to surveillance of a superior officer, for the performance of certain duties. Contrary to the opinion of the applicant nothing to contradict this is to be found in the judgment of the Court of 15 December 1965 in Case 15/65 Werner Klaer v High Authority of the ECSC [1965] ECR 1045. That case was concerned basically not with the question of the power to issue instructions but with the question of an official's being assigned to duties which were below the level of his duties and grade. In the context of that question the Court simply stressed that according to the definition of duties there is in principle a hierarchy between officials whose duties are performed at different levels; the Court however did not deal with the question whether an official may be given powers over another official whose duties are at a comparable level.

In the same way it cannot be concluded that an official, who makes a report on another official, must necessarily have a higher rank. If as a rule a reporting officer has a higher grade than that of the official whose capacities he has to judge, this is related to the fact that an official in a higher rank basically has a larger amount of knowledge and experience. This does not however mean, and there is nothing to the contrary in the Staff Regulations, that an official with long years of experience may not report on another official in the same grade.

Since there is accordingly no basis for thinking that the letter from the Secretary-General of 30 April 1974 assigned the applicant to a higher post than he had previously held, it is not possible to pray in aid the judgments of 19 March 1964 in Joined Cases 20 and 21/63 Jean Maudet v Commission [1964] ECR 113 and of 9 June 1964 in Joined Cases 79 and 82/63 Jean Reynier and Piero Erba v Commission [1964] ECR 259. Those cases were concerned with the fact that the legal position expressly or by implication attained before the entry into force of the Staff Regulations by servants of the European Communities recruited under the so-called ‘Brussels Contracts’, who pursuant to Article 102 of the Staff Regulations were to be integrated as officials under the new Staff Regulations, was to be confirmed.

Article 13 of Regulation No 912/78 of 2 May 1978 amended the section relating to ‘Language Service’ in Annex I A to the Staff Regulations. It is obvious and therefore needs no lengthy discussion that in so doing the Council was not intending to introduce a new post of a higher grade. Even if the amendment recognized that a language department consists of several translation divisions, this is no evidence as to the rank of the Head of the Language Department. Thus the question whether a transition from Grade L/A 3 to Grade A 2 is possible at all and if so on what conditions similarly no longer arises.

Accordingly I may also be brief in considering the second ground of claim put forward by the applicant.

The applicant considers the conduct of the Council to be a breach of the principle expressed in Article 5 (3) of the Staff Regulations of the equal treatment and of the equivalence of officials. He points out first that since his appointment as Head of the Language Department his duties have increased six-fold and that he carries out the duties of a director without this being reflected in his career or salary, whereas in other institutions of the European Communities officials performing similar duties are assigned to Grade A 2.

As we have seen however the applicant was not assigned to a post of Grade A 2. Also the tasks, powers and responsibility involved in his duties differ from those of a director in Grade A 2.

In so far as the applicant refers to the different treatment as regards salary of officials with corresponding duties in the various institutions of the Communities, he is right in claiming that all the institutions of the Communities constitute a functional unity and in principle the level of posts in a grade at one institution must not be allowed to be quite differently structured from those in another by the application of different criteria. On the other hand the institutions have a wide discretion as to the arrangements for their own organization. It is therefore possible to speak of unequal treatment only where officials of the various institutions, who perform equal duties, are treated differently. We have however heard from the Council that the language departments of the individual institutions are variously organized and integrated into the organization. Thus for example, if I understand the position correctly, it is only at the Court of Justice that the holder of the post of Head of the Language Department has, ad personam, Grade A 2. The office of a director of Grade A 2 is further provided for for the Head of the Translation Department and Interpretation Department of the European Parliament and the Head of the Interpretation Department of the Commission. On the other hand the Translation Department of the Commission is under a director who, as at the Council, has responsibility for other departments such as Documentation, Reproduction and Library. These examples are sufficient to show us that the structures and scope of tasks of the individual language departments of the various institutions can scarcely be compared with one another, quite apart from the degree of difficulty of the particular duties. From this it follows that there is justification for a difference in grading for the heads of the various administrative units.

The applicant thus has no claim to be assigned to Grade A 2. I therefore propose that the application should be dismissed as unfounded and that the applicant should be ordered to bear his own costs pursuant to Articles 69 and 70 of the Rules of Procedure.

( 1 ) Translated from the German.