JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

16 July 1998

Case T-162/96

Sandro Forcheri

v

Commission of the European Communities

‛Officials — Secondment in die interests of the service — Temporary posting — Entitlement to the differential allowance — Discretion of the administration’

Full text in French II-1203

Application for:

annulment, first, of the Commission's decision of 12 December 1995 rejecting the applicant's request for recognition of his temporary posting and for payment of the differential allowance and, second, of the Commission's decision of 24 July 1996 declaring that the applicant was serving as Head of Unit 4 (Common Customs Tariff), Directorate B (Customs), Directorate-General XXI (Customs and Indirect Taxation), and granting him the temporary posting allowance, in so far as that decision was set to take effect on 1 August 1996 for a fixed term of one year, rather than on 29 October 1992 for an indefinite period.

Decision:

Partial annulment; for the rest, application dismissed.

Abstract of the Judgment

The applicant, a Commission official in grade A 4, is Deputy Head of Unit 4 (Common Customs Tariff) of Directorate B (Customs) in Directorate General (DG) XXI (Customs and Indirect Taxation) (Unit XXI.B.4). Since 29 October 1992 he has de facto been acting Head of Unit - performing duties which officially have always been attributed to his immediate superior - because of the latter's appointment as Head of Samcomm (Sanctions Assistance Missions Communication Centre), a body set up under the aegis of the Conference on Security and Cooperation in Europe in order to enforce the embargo decreed by the UN Security Council against Serbia and Montenegro.

By note addressed to the appointing authority on 18 September 1995 pursuant to Article 90(1) of the Staff Regulations, the applicant requested formal appointment as temporary Head of Unit XXI.B.4 and payment of the allowance provided for in Article 7(2) of the Staff Regulations. That request was rejected by note of 12 December 1995 from the Commission Director-General of DG IX (Personnel and Administration).

On 11 March 1996 the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations in respect of that decision. By note of 24 July 1996 the Director-General of DG IX informed him that it had been decided to grant him the differential allowance with effect from 1 August 1996 for a period of 12 months.

Substance

An official is regarded as having been seconded in the interests of the service within the meaning of Article 37 of the Staff Regulations where, by decision of the appointing authority, he has been directed in the interests of the service to occupy temporarily a post outside his institution.

In defining secondment in the interests of the service, Article 37, first paragraph, subparagraph (a), of the Staff Regulations is silent as to the nature and characteristics of the ‘post’ which an official may temporarily occupy, outside his institution, by way of secondment by the appointing authority. In particular, there is nothing to suggest that the term ‘post’ is to be construed in the technical sense in which it is used in the Staff Regulations, that is to say, a permanent post created by decision of the budgetary authority. Nor is it necessary that the ‘post’ at issue exist independently of the measure seconding the official, or even that secondment be to a public authority whose officers occupy ‘posts’ which satisfy the definition given in the Staff Regulations (paragraph 65).

See: 56/81 Novi v Commission [1982] ECR 1

It appears from the documents before the Court that the applicant's immediate superior must be regarded as having been seconded in the interests of the service ever since he took up the duties of Head of Samcomm.

Where an official is called upon on the basis of Article 7(2) of the Staff Regulations to occupy a post temporarily, this does not mean that there is a corresponding vacancy. First, it is clear from Article 7(2), first subparagraph, of the Staff Regulations that in those circumstances the official is not being appointed to the post. Secondly, Article 7(2), second subparagraph, of the Staff Regulations provides that a temporary posting is possible, in particular, where there is a need to replace an official who has been seconded in the interests of the service or who is absent on protracted sick leave. It is clear from Article 38(f) and (g) of the Staff Regulations that an official who has been seconded in the interests of the service retains his post and is to be reinstated in that post as soon as secondment comes to an end. Similarly, it is clear that an official on protracted sick leave retains his post (paragraphs 82 to 84).

In Case T-163/89 Sebastiani v Parliament [1991] ECR II-715, relied upon by the defendant, it was held that a temporary posting is impossible where there is no vacant post. However, that judgment is irrelevant here since, by contrast with the facts of the present case, in Sebastiani there was no post with duties which could be performed on a temporary basis, because of the transfer to another department of the only post in the same category in a grade higher than that of the applicant (paragraph 85).

See: 35/69 Lampe v Commission [1970] ECR 609, paras 8 to 10; Sebastiani v Parliament, cited above, para. 48

Since the application of Article 7(2) of the Staff Regulations entitles the official to specific benefits from the administration, it requires an express decision of the appointing authority. As the decision to call upon an official to occupy a post temporarily involves an assessment of the interests of the service, the person concerned cannot, merely by dint of performing the duties attaching to the post in question, invoke a right to the attendant benefits (paragraph 92).

See: Opinion of Advocate General Roemer in 24/69 Nebe v Commission [1970] ECR 145, p. 153; Opinion of Advocate General Roemer in Lampe v Commission, cited above, p. 619; Lampe v Commission, cited above, paras 4 and 6; 23/74 Küster v Parliament [1975] ECR 353, paras 14 to 17; 198/81, 199/81,200/81, 201/81 and 202/81 Micheli and Others v Commission [1982] ECR 4145, para. 15

Furthermore, Article 26 of the Commission's internal rules of procedure in force at the material time, which provides that ‘[s]ave where the Commission decides otherwise, any official who is absent or prevented from attending to his duties shall be replaced by the most senior subordinate official present, and in the case of equal seniority the oldest, in the highest category and grade’, merely makes arrangements for automatic deputising so as to secure on a temporary basis, where an official is absent or prevented from working, his immediate and automatic replacement by another official in order to ensure continuity in the service (paragraph 94).

Those arrangements, which fall within the normal powers of an administration to organise its departments, are to be distinguished from the provision made in Article 7(2) of the Staff Regulations for temporary posting. Whereas deputising is automatic as soon as an official is prevented from working, temporary posting, by contrast, is conditional upon an express decision of the appointing authority. Consequently, the applicant is not justified in claiming that, by virtue of Article 2 of the Staff Regulations in conjunction with Article 26 of the Commission's rules of procedure, he has occupied a temporary posting since 29 October 1992 (paragraphs 95 to 98).

See: 26/67 Danvin v Commission [1968] ECR 315 and Opinion of Advocate General Gand, pp. 323, 325 and 326

The fact remains that deputising cannot continue for a period longer than is required for the normal operation of the service, having regard to its objective needs, and that in each case where the appointing authority declines to adopt a decision calling upon an official to take up a temporary posting, it must be determined whether it has exceeded its discretion. In no circumstances can the appointing authority exercise its discretion in a manner which permits the administration to fall short of its obligations under the Staff Regulations (paragraph 99).

See: Danvin v Commission, cited above; Opinion in Nebe v Commission, cited above, p. 159; Opinion in Lampe v Commission, cited above, p. 619; Opinion of Advocate General Dutheillet de Lamothe in 5/70 Prelle v Commission [1970) ECR 1075, p. 1084

In this connection, the Staff Regulations guarantee officials the right to be accorded the powers attaching to their grade and post. The principle, laid down in Article 7(1) of the Staff Regulations, that grade and post should correspond was established for the benefit of officials in that it ensures, in principle, that an official will always be assigned to a post in his category or service corresponding to his grade and not to a lower grade. By virtue of that principle, moreover, an official may refuse assignment to a post corresponding to a grade higher than his own except where he is called upon under Article 7(2) to serve temporarily, subject to certain conditions designed to ensure that if he is called upon temporarily to take over tasks entailing heavier responsibilities than those with which he is normally entrusted, his remuneration will reflect the higher level of responsibility (paragraph 100).

See: Prelle v Commission, cited above, para. 6; 28/72 Tontodonativ Commission [1973] ECR 779, para. 8; 189/73 Van Reenen v Commission [1975] ECR 445, para. 6; 25/77 De Roubaix v Commission [1978] ECR 1081, para. 17; 218/80 Kruse V Commission [1981] ECR2417, para. 7, and Opinion of Advocate General Rozès, p. 2428;T-18/90 jongen v Commission [1991] ECR II-187, para. 27

Given the particular circumstances of the present case, which are related to emergency action taken by the competent international authorities in a disturbing situation the outcome of which was difficult to foresee, the Court considers that the defendant neither exceeded its power to organise its departments nor fell short of its duty to have regard for the welfare of officials by declining to adopt, as of 29 October 1992, a decision granting the applicant the temporary posting allowance (paragraphs 101 and 103).

However, in the light of actual developments the appointing authority was duty bound to review the applicant's administrative position. In neglecting to call upon the applicant to serve as Head of Unit XXI.B.4 on a temporary basis, with effect from the time when his immediate superior's secondment was extended well beyond initial expectations, the appointing authority manifestly exceeded the bounds of its discretion, contrary to Article 7(2) of the Staff Regulations and in dereliction of its duty to have regard for the welfare of officials. That constitutes an omission on the part of the administration in the performance of its duties through which it has incurred liability in so far as it deprived the applicant of the differential allowance to which he was entitled with effect from the fourth month of his temporary posting which ought to have been accredited to him (paragraphs 104, 106 and 107).

Furthermore, since the purpose of the temporary posting in which the applicant should have been called upon to serve was the need to replace an official seconded in the interests of the service, the duration of the applicant's entitlement to the differential allowance could not be restricted to one year (paragraph 108).

Under Article 91(1) of the Staff Regulations, the Court has unlimited jurisdiction in disputes of a financial character. Accordingly, the defendant must be ordered to pay to the applicant the monthly instalments of the differential allowance that would have been due to him if he had been properly called upon to serve temporarily as Head of Unit XXI.B.4. Since the defendant has raised no objection to the rate of interest proposed by the applicant in this case, default interest shall be applied to those instalments at the rate of 8% per annum (paragraph 110).

There is no need to consider the other heads of claim (paragraph 111).

Operative part:

The Commission's decisions of 12 December 1995 and 24 July 1996 are annulled, save in so far as the latter granted the applicant the temporary posting allowance.

The Commission is ordered to pay to the applicant the monthly instalments of the differential allowance referred toin Article 7(2) of the Staff Regulations that would have been due to him if he had been properly called upon to serve temporarily as Head of Unit XXI.B.4 on 24 March 1993, together with default interest at the rate of 8% per annum to be applied with effect from the dates on which those instalments should have been paid until the date of final settlement.

The remainder of the application is dismissed.