Judgment of the Court (First Chamber) of 24 June 1969. - Jeannette Fux v Commission of the European Communities. - Case 26-68.



European Court reports 1969 Page 00145

Danish special edition Page 00031

Greek special edition Page 00045

Portuguese special edition Page 00047



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - RECRUITMENT - COMPETITION - SUBSEQUENT ACTION OF ADMINISTRATION - PROCEEDINGS INSTITUTED BY CANDIDATES - ADMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 29 )

2 . OFFICIALS - RECRUITMENT - NO OBLIGATION ON THE PART OF THE ADMINISTRATION TO FILL POST WHICH HAS BECOME VACANT

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLES 4, 29, 30 )

3 . OFFICIALS - EXPERTS AND OFFICIALS - DISTINCTION

4 . OFFICIALS - RECRUITMENT - COMPETITION - CANDIDATES ENTERED ON LIST OF SUITABLE CANDIDATES - RIGHT OF CANDIDATES TO BE APPOINTED - NO UNCONDITIONAL RIGHT

( STAFF REGULATIONS OF OFFICIALS OF THE EEC, ARTICLE 30 )

Summary

1 . THE FACT THAT A CANDIDATE HAS TAKEN PART IN A COMPETITION WITH THE RESULT THAT HE HAS BEEN ENTERED ON A LIST OF SUITABLE CANDIDATES IS EVIDENCE OF AN INTEREST WHICH HE HAS IN THE OUTCOME OF THAT COMPETITION AS DETERMINED BY THE APPOINTING AUTHORITY .

2 . IT DOES NOT FOLLOW FROM THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 4 OR FROM ARTICLES 29 AND 30 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EEC THAT ONCE A RECRUITMENT PROCEDURE HAS BEEN INITIATED THE APPOINTING AUTHORITY IS OBLIGED TO PURSUE IT BY FILLING THE POST WHICH HAS BECOME VACANT .

3 . IT DOES NOT NECESSARILY FOLLOW FROM THE CONCEPT OF AN EXPERT THAT SUCH A PERSON CANNOT, SHOULD THE NEED ARISE, BE CONSULTED REGULARLY AND CARRY OUT WITHOUT INTERRUPTION THE ACTIVITIES ASSIGNED TO HIM . THE DISTINCTION BETWEEN AN EXPERT AND AN OFFICIAL MUST BE SOUGHT ABOVE ALL IN THE NATURE OF THE LEGAL RELATIONSHIP WHICH BINDS EACH OF THEM TO THE INSTITUTION TO WHICH THEY ARE ASSIGNED .

4 . THE CANDIDATES ENTERED ON A LIST OF SUITABLE CANDIDATES HAVE NO UNCONDITIONAL RIGHT TO BE APPOINTED TO THE VACANT POST EVEN IF THEY ARE PLACED FIRST .

Parties

IN CASE 26/68

JEANNETTE FUX, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT SCHAERBEEK-BRUSSELS, 27 AVENUE ADOLPHE-LACOMBLEE, ASSISTED BY MAURICE COLAERT, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL,

DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION NOTIFIED TO THE APPLICANT BY LETTER OF 13 AUGUST 1968 AND FOR THE PAYMENT OF DAMAGES,

Grounds

ADMISSIBILITY

1 THE DEFENDANT OBJECTS THAT THE APPLICATION IS INADMISSIBLE, CLAIMING THAT OFFICIALS AND SERVANTS CANNOT BE HEARD TO CONTEST MEASURES ADOPTED BY THE INSTITUTIONS CONCERNING THE ORGANIZATION AND THE FUNCTIONING OF THE DEPARTMENTS IN SO FAR AS THOSE MEASURES DO NOT ADVERSELY AFFECT THE RIGHTS WHICH THEY HOLD UNDER THE STAFF REGULATIONS .

2 IN THE PRESENT CASE THE CONTESTED MEASURE IS SAID NOT TO AFFECT ADVERSELY THE RIGHTS OF THE APPLICANT SINCE THE OFFICIALS NAMED ON THE LIST OF SUITABLE CANDIDATES HAVE NO RIGHT TO BE APPOINTED TO THE POST OPENED TO COMPETITION .

3 THE FACT THAT A CANDIDATE HAS TAKEN PART IN A COMPETITION WITH THE RESULT THAT HE HAS ACHIEVED A FAVOURABLE POSITION IS EVIDENCE OF AN INTEREST WHICH HE HAS IN THE OUTCOME OF THAT COMPETITION AS DETERMINED BY THE APPOINTING AUTHORITY .

4 IN THE PRESENT CASE THE APPLICANT ARGUES THAT THE COMMISSION'S DECISION TO TERMINATE THE RECRUITMENT PROCEDURE IN DISPUTE INFRINGED CERTAIN PROVISIONS OF THE STAFF REGULATIONS AND CONSTITUTES A MISUSE OF POWERS SINCE IT WAS PROMOTED BY REASONS UNCONNECTED WITH THE INTERESTS OF THE SERVICE .

5 IT IS CLAIMED THAT ON THESE GROUNDS THE DECISION AFFECTS THE APPLICANT ADVERSELY .

6 THE CONSIDERATION OF THESE SUBMISSIONS INVOLVES AN EXAMINATION OF THE SUBSTANCE OF THE CASE .

7 THE OBJECTION OF INADMISSIBILITY CANNOT THEREFORE BE UPHELD .

THE SUBSTANCE OF THE CASE

THE REQUEST FOR ANNULMENT

A - INFRINGEMENT OF THE STAFF REGULATIONS

8 THE APPLICANT REFERS TO THE SECOND PARAGRAPH OF ARTICLE 4 AND TO ARTICLES 29 AND 30 OF THE STAFF REGULATIONS AND CONCLUDES FROM THESE THAT THE APPOINTING AUTHORITY, ONCE IT HAS DECIDED TO FILL A VACANT POST AND TO THIS END HAS INITIATED THE RECRUITMENT PROCEDURE PRESCRIBED BY THE STAFF REGULATIONS, NO LONGER HAS THE POWER TO ABOLISH THAT POST AND TO GO BACK ON ITS ORIGINAL DECISION .

9 THE SAID PROVISIONS STATE THE OBJECTIVE CRITERIA WHICH ANY PROCEDURE FOR FILLING VACANT POSTS IN THE INTERESTS OF THE SERVICE MUST SATISFY .

10 THEY ARE INTENDED AT THE SAME TIME TO PROVIDE A GUARANTEE FOR THE PERSON CONCERNED THAT THE APPOINTING AUTHORITY WILL ONLY MAKE APPOINTMENTS IN CONFORMITY WITH THE RULES PRESCRIBED BY LAW .

11 HOWEVER, IT DOES NOT FOLLOW FROM THESE PROVISIONS THAT ONCE A RECRUITMENT PROCEDURE HAS BEEN INITIATED THE SAID AUTHORITY IS OBLIGED TO PURSUE IT BY FILLING THE POST WHICH HAS BECOME VACANT .

12 FURTHERMORE, THE DEFENDANT JUSTIFIES THE ABOLITION OF THE POST IN DISPUTE ON GROUNDS DERIVED FROM THE MERGER OF THE EXECUTIVES .

13 SUBSEQUENT UPON THIS MERGER IT BECAME APPARENT THAT THE DEPARTMENTS REQUIRED TO BE RE-STRUCTURED AND RATIONALIZED IN ORDER TO ENSURE THAT THE SINGLE EXECUTIVE WOULD BE EQUIPPED WITH THE APPROPRIATE MEANS OF ACTION .

14 REGULATION NO 259/68 THEREFORE AUTHORIZED THE COMMISSION TO REDUCE THE NUMBER OF POSTS ALREADY OCCUPIED BY OFFICIALS BUT THE PRESERVATION OF WHICH WAS INCOMPATIBLE WITH THE REQUIREMENTS OF THE RE-STRUCTURING OF THE DEPARTMENTS .

15 WITH ALL THE MORE REASON, THEN, IT WAS EMPOWERED TO TAKE DECISIONS TO ABOLISH POSTS WHICH WERE STILL VACANT AND WHICH NEEDED TO BE DISPENSED WITH TO MEET THE REQUIREMENTS OF THE NEW ADMINISTRATIVE STRUCTURE .

16 IT FOLLOWS FROM THE FOREGOING THAT THE SUBMISSION FOUNDED ON INFRINGEMENT OF THE STAFF REGULATIONS MUST BE DISMISSED AS UNFOUNDED .

B - MISUSE OF POWERS

17 THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION CONSTITUTES A MISUSE OF POWERS IN THAT THE ABOLITION OF THE POST IN DISPUTE IS FICTITIOUS AND WAS SOLELY INSPIRED BY THE DESIRE TO ASSIGN THE DUTIES WHICH WERE ATTACHED TO IT TO MR DIETZLER AS AN OFFICIAL HAVING GERMAN NATIONALITY .

18 ACCORDING TO THE APPLICANT MR DIETZLER WHO IS " CONSULTED REGULARLY ON THE PROBLEMS OF THE HARMONIZATION OF CUSTOMS LAWS HAVING REGARD TO SPECIFIC GERMAN PROBLEMS " IS IN FACT PERFORMING THE SAME DUTIES AS THOSE PRESCRIBED FOR THE POST IN DISPUTE .

19 FURTHERMORE SHE SAYS THAT THIS OFFICIAL HAS BEEN WRONGLY DESCRIBED AS AN EXPERT SINCE HE IS CONSULTED ON A CONTINUING BASIS AND PERFORMS HIS DUTIES ON A PERMANENT BASIS .

20 IT IS APPARENT FROM VACANCY NOTICE NO 5882 RELATING TO THE POST IN DISPUTE THAT THE DUTIES WHICH WERE ENTRUSTED TO MR DIETZLER ONLY PARTLY CORRESPOND TO THOSE ATTACHED TO THIS POST .

21 MOREOVER IT DOES NOT NECESSARILY FOLLOW FROM THE CONCEPT OF AN EXPERT THAT SUCH PERSON CANNOT, SHOULD THE NEED ARISE, BE CONSULTED REGULARLY AND CARRY OUT WITHOUT INTERRUPTION THE ACTIVITIES ASSIGNED TO HIM .

22 THE DISTINCTION BETWEEN AN EXPERT AND AN OFFICIAL MUST BE SOUGHT ABOVE ALL IN THE NATURE OF THE LEGAL RELATIONSHIP WHICH BINDS EACH OF THEM TO THE INSTITUTION TO WHICH THEY ARE ASSIGNED .

23 IT IS COMMON GROUND IN THE PRESENT CASE THAT MR DIETZLER CONTINUES TO BE EMPLOYED BY HIS NATIONAL ADMINISTRATION, THE COMMISSION MERELY PAYING HIM SUBSISTENCE ALLOWANCES AND REIMBURSING HIS TRAVEL EXPENSES AS FAR AS BRUSSELS .

24 A SITUATION OF THIS KIND IS NOT ONE WHICH COULD CONCEIVABLY FIT INTO A SERVICE RELATIONSHIP EXISTING BETWEEN THE COMMUNITY AND ONE OF ITS OFFICIALS WITHIN THE MEANING OF THE STAFF REGULATIONS .

25 ALTHOUGH THE PRACTICE OF HAVING RECOURSE WITHIN THE DEPARTMENTS OF THE COMMUNITY TO THE SERVICES OF NATIONAL OFFICIALS DOES CALL FOR CERTAIN RESERVATIONS TO BE EXPRESSED IF THE USE OF SUCH OFFICIALS ATTAINS SIZEABLE PROPORTIONS AND LASTS A CONSIDERABLE TIME, IT CAN BE JUSTIFIED IN THE PRESENT CASE BECAUSE OF THE NEED FOR CLOSE COOPERATION BETWEEN THE COMMISSION AND THE NATIONAL CUSTOMS ADMINISTRATIONS WHEN THE TRANSITIONAL PERIOD COMES TO AN END .

26 FOR THOSE REASONS A MISUSE OF POWERS HAS NOT BEEN PROVED IN THE PRESENT CASE .

27 THE REQUEST FOR ANNULMENT MUST THEREFORE BE DISMISSED AS UNFOUNDED .

28 ACCORDINGLY THE CLAIM FOR DAMAGES MUST ALSO BE DISMISSED AS UNFOUNDED IN SO FAR AS IT IS BASED ON THE ALLEGEDLY ILLEGAL NATURE OF THE CONTESTED DECISION .

THE CLAIM FOR DAMAGES

29 THE APPLICANT MAINTAINS ALTERNATIVELY THAT THE COMMISSION WAS GUILTY OF A WRONGFUL ACT OR OMISSION IN THAT IN MAY 1967 IT DECIDED TO FILL THE POST IN DISPUTE AND ARRANGED THE COMPETITION PROCEDURE AND THAT IT THEN WENT BACK ON THIS DECISION ON GROUNDS CONNECTED WITH THE MERGER OF THE EXECUTIVES .

30 SHE CLAIMS THAT AT THAT TIME IT COULD AND SHOULD ALREADY HAVE BEEN PAYING HEED TO THE PROBLEMS PRESENTED BY SUCH A MERGER SO FAR AS ITS ADMINISTRATIVE STRUCTURE WAS CONCERNED .

31 THE APPLICANT STATES THAT AS A RESULT OF THIS GROSS NEGLIGENCE IT WAS IMPOSSIBLE FOR HER, AS LONG AS THE OUTCOME OF THE COMPETITION PROCEDURE REMAINED UNDECIDED, TO APPLY FOR OTHER VACANT POSTS AND THAT SHE THEREBY SUFFERED DAMAGE TO HER CAREER .

32 FURTHERMORE SHE HAD TO EXPEND FRUITLESS EFFORTS BY WAY OF PREPARATION IN ORDER TO TAKE PART IN THE COMPETITION .

33 THE APPLICANT HAS FAILED TO SHOW THE EXISTENCE OF ANY DAMAGE CAUSED BY THE WRONGFUL ACT OR OMISSION OF WHICH SHE ACCUSES THE COMMISSION .

34 SINCE THE CANDIDATES ENTERED ON A LIST OF SUITABLE CANDIDATES HAVE NO UNCONDITIONAL RIGHT TO BE APPOINTED TO THE VACANT POST, EVEN IF THEY ARE PLACED FIRST, THERE DOES NOT EXIST IN THE PRESENT CASE AN ADEQUATE CAUSAL CONNEXION BETWEEN THE CONDUCT OF THE COMMISSION AND THE DAMAGE ALLEGED .

35 SINCE, MOREOVER, THE COMPETITION IN DISPUTE WAS, AS APPEARS FROM THE VACANCY NOTICE, ON THE BASIS OF QUALIFICATIONS, IT DID NOT PRESCRIBE TESTS WHICH WOULD HAVE CALLED FOR SPECIAL EFFORT BY WAY OF PREPARATION ON THE PART OF THE CANDIDATES .

36 FURTHERMORE THE APPLICANT HAS BROUGHT NO EVIDENCE OF THE EXPENSES SHE INCURRED ON THIS OCCASION .

37 IN THESE CIRCUMSTANCES THE CLAIM FOR DAMAGES MUST BE DISMISSED AS UNFOUNDED .

Decision on costs

38 THE APPLICANT HAS FAILED IN HER APPLICATION .

39 UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

40 HOWEVER, UNDER ARTICLE 70 OF THE SAID RULES THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .