Order of the Court (Third Chamber) of 7 October 1987. - Detlef Brüggemann v Economic and Social Committee of the European Communities. - Inadmissibility. - Case 248/86.



European Court reports 1987 Page 03963



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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OFFICIALS - PROMOTION - REQUIRED MINIMUM PERIOD IN GRADE - COMPUTATION - STARTING POINT - ESTABLISHMENT

( STAFF REGULATIONS OF OFFICIALS, ART . 45*(1 )*)

Summary

THE MINIMUM PERIOD WHICH, UNDER ARTICLE 45 OF THE STAFF REGULATIONS, AN OFFICIAL MUST COMPLETE IN HIS GRADE BEFORE BEING ELIGIBLE FOR PROMOTION MUST BE COMPUTED, IN THE CASE OF THE FIRST PROMOTION OF AN OFFICIAL AFTER RECRUITMENT, FROM THE DATE OF THE OFFICIAL' S ESTABLISHMENT .

Parties

IN CASE 248/86

DETLEF BRUEGGEMANN, AN OFFICIAL OF THE ECONOMIC AND SOCIAL COMMITTEE, RESIDING AT 64 AVENUE DE L' OISEAU BLEU, BRUSSELS, REPRESENTED BY HANS-UDO HORST, RECHTSANWALT, BIELEFELD, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALEX BONN, 22 COTE D' EICH,

APPLICANT,

V

ECONOMIC AND SOCIAL COMMITTEE OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ALOYSE MAY, OF THE LUXEMBOURG BAR, 31 GRAND-RUE,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE ECONOMIC AND SOCIAL COMMITTEE OF 17 FEBRUARY 1986 CONCERNING A PROMOTION DECISION AND FOR DAMAGES,

THE COURT ( THIRD CHAMBER )

COMPOSED OF : J . C . MOITINHO DE ALMEIDA, PRESIDENT OF CHAMBER, U . EVERLING AND Y . GALMOT, JUDGES,

ADVOCATE GENERAL : SIR GORDON SLYNN

REGISTRAR : P . HEIM

AFTER HEARING THE VIEWS OF THE ADVOCATE GENERAL,

MAKES THE FOLLOWING

ORDER

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 24 SEPTEMBER 1986, DETLEF BRUEGGEMANN, AN OFFICIAL OF THE ECONOMIC AND SOCIAL COMMITTEE IN GRADE A*7, STEP 3, BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES FOR THE ANNULMENT OF THE DECISION OF THE ECONOMIC AND SOCIAL COMMITTEE OF 17 FEBRUARY 1986 CONCERNING THE PROMOTION OF ANOTHER OFFICIAL OF THE ECONOMIC AND SOCIAL COMMITTEE, MR H ., FROM GRADE A*7, STEP 3, TO GRADE A*6, STEP 1 . HE ALSO CLAIMS COMPENSATION FOR THE DAMAGE WHICH HE ALLEGES THAT DECISION CAUSED HIM .

2 MR BRUEGGEMANN WAS APPOINTED A PROBATIONARY OFFICIAL IN GRADE A*7, STEP 3, WITH EFFECT FROM 1 NOVEMBER 1983 AND WAS ESTABLISHED IN HIS POST WITH EFFECT FROM 1 AUGUST 1984 .

3 IN JUNE 1985 THE JOINT PROMOTION COMMITTEE OF THE ECONOMIC AND SOCIAL COMMITTEE DREW UP A LIST INDICATING THAT THE APPLICANT, ALONG WITH THREE OTHER OFFICIALS IN GRADE A*7, FULFILLED THE CONDITIONS FOR PROMOTION TO GRADE A*6, WHEREAS UNDER THE BUDGET IT WAS POSSIBLE TO FILL ONLY TWO POSTS . ACCORDING TO THAT LIST, THE APPLICANT HAD COMPLETED ON 1 NOVEMBER 1985 THE MINIMUM PERIOD OF SERVICE NEEDED FOR PROMOTION, WHEREAS MR H . HAD ATTAINED THAT MINIMUM ON 1 DECEMBER 1984 .

4 ONLY ONE OF THE ABOVEMENTIONED FOUR OFFICIALS WAS PROMOTED TO GRADE A*6 DURING 1985 . IN ACCORDANCE WITH THE OPINION OF THE JOINT PROMOTION COMMITTEE OF 13 JANUARY 1986, THE ECONOMIC AND SOCIAL COMMITTEE DECIDED,ON 17 FEBRUARY 1986, TO PROMOTE MR H . TO THE SECOND POST IN GRADE A*6 . THAT IS THE DECISION WHICH IS BEING CONTESTED IN THIS CASE .

5 THE APPLICANT CLAIMS ESSENTIALLY THAT THE ECONOMIC AND SOCIAL COMMITTEE ATTACHED MOST WEIGHT TO THE PERIOD OF SERVICE COMPLETED BY THE CANDIDATES AT THE TIME OF THE PROMOTION PROCEDURES AND THEREBY INFRINGED ARTICLE 45 OF THE STAFF REGULATIONS ACCORDING TO WHICH PROMOTION IS TO BE MADE EXCLUSIVELY AFTER CONSIDERATION OF THE COMPARATIVE MERITS OF THE OFFICIALS ELIGIBLE FOR PROMOTION . IN THAT CONNECTION, HE CONTESTS IN PARTICULAR THE PRACTICE OF THE ECONOMIC AND SOCIAL COMMITTEE OF TAKING ACCOUNT ONLY OF CANDIDATES WHO, IN ADDITION TO THE PERIOD OF SERVICE OF TWO YEARS LAID DOWN IN ARTICLE 45 OF THE STAFF REGULATIONS, HAVE COMPLETED AN ADDITIONAL PERIOD ( VARIABLE ACCORDING TO GRADE AND STATUS ). THE JOINT PROMOTION COMMITTEE OF THE ECONOMIC AND SOCIAL COMMITTEE THEREFORE DECIDED, IN ACCORDANCE WITH THAT PRACTICE, TO FIX A MINIMUM LIMIT FOR PERIOD OF SERVICE AND TIME SPENT AWAITING PROMOTION, THE "BAR", BELOW WHICH NO CANDIDATURE WAS CONSIDERED, CONTRARY TO ARTICLE 45 OF THE STAFF REGULATIONS . IN THIS CASE, THE "BAR" WAS PLACED ABOVE THE APPLICANT' S NAME .

6 UNDER ARTICLE 92*(2 ) OF THE RULES OF PROCEDURE, THE COURT MAY AT ANY TIME OF ITS OWN MOTION CONSIDER WHETHER THERE EXISTS ANY ABSOLUTE BAR TO PROCEEDINGS WITH A CASE . IN SUCH A CASE, IT MAY GIVE ITS DECISION WITHOUT ANY ORAL PROCEDURE, AS IS PERMITTED BY ARTICLE 91*(3 ) OF THE RULES OF PROCEDURE . INFORMED THAT THE COURT INTENDED TO CONSIDER OF ITS OWN MOTION A POSSIBLE ABSOLUTE BAR TO PROCEEDING WITH THE CASE ON THE GROUND OF THE ABSENCE OF AN ACT ADVERSELY AFFECTING THE APPLICANT WITHIN THE MEANING OF ARTICLES 90*(2 ) AND 91 OF THE STAFF REGULATIONS OF OFFICIALS, THE PARTIES HAD AN OPPORTUNITY TO SUBMIT WRITTEN OBSERVATIONS ON THE QUESTION WHETHER THE APPLICANT FULFILLED AT THE TIME WHEN THE CONTESTED DECISION WAS ADOPTED THE MINIMUM REQUIREMENT AS TO PERIOD OF SERVICE LAID DOWN IN ARTICLE 45 OF THE STAFF REGULATIONS OF OFFICIALS . IN THE LIGHT OF THOSE OBSERVATIONS, THE COURT CONSIDERS THAT THE QUESTION OF THE ADMISSIBILITY OF THE ACTION SHOULD BE DECIDED BY ORDER, WITHOUT ANY ORAL PROCEDURE .

7 ACCORDING TO ARTICLE 45 OF THE STAFF REGULATIONS, TO BE ELIGIBLE FOR PROMOTION, AN OFFICIAL MUST HAVE COMPLETED A MINIMUM PERIOD IN HIS GRADE . FOR OFFICIALS AS APPOINTED TO THE STARTING GRADE IN THEIR SERVICE OR CATEGORY, THAT PERIOD IS SIX MONTHS FROM THE DATE OF THEIR ESTABLISHMENT . FOR OTHER OFFICIALS, IT IS TWO YEARS . THE COURT INTERPRETED THAT PROVISION IN ITS JUDGMENT OF 13 DECEMBER 1984 ( JOINED CASES 20 AND 21/83 VLACHOS V COURT OF JUSTICE (( 1984 )) ECR 4149 ) AS MEANING THAT AN OFFICIAL ELIGIBLE FOR PROMOTION MUST COMPLETE THE MINIMUM PERIOD OF SERVICE AFTER ESTABLISHMENT . IT IS COMMON GROUND THAT THE MINIMUM PERIOD OF SERVICE REQUIRED IN THIS CASE WAS TWO YEARS .

8 IT FOLLOWS FROM THE FOREGOING THAT THE PERIOD OF TWO YEARS BEGAN TO RUN FROM THE ESTABLISHMENT OF THE APPLICANT, THAT IS TO SAY, FROM 1 AUGUST 1984 . SINCE THE APPLICANT FULFILLED THE CONDITION CONCERNING THE MINIMUM PERIOD OF SERVICE ONLY ON 1 AUGUST 1986, THE CONTESTED DECISION OF 17 FEBRUARY 1986 COULD NOT ADVERSELY AFFECT HIM WITHIN THE MEANING OF ARTICLES 90*(2 ) AND 91 OF THE STAFF REGULATIONS . THE APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE ECONOMIC AND SOCIAL COMMITTEE MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

9 WITH REGARD TO THE APPLICATION FOR COMPENSATION FOR THE DAMAGE ALLEGEDLY SUFFERED AS A RESULT OF THE CONTESTED DECISION, IT MUST ALSO BE DISMISSED AS INADMISSIBLE ON THE SAME GROUNDS .

10 THE APPLICATION MUST THEREFORE BE DISMISSED IN ITS ENTIRETY AS INADMISSIBLE .

Decision on costs

COSTS

11 UNDER THE SECOND SUBPARAGRAPH OF ARTICLE 69*(3 ) OF THE RULES OF PROCEDURE, THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR . PURSUANT TO THAT PROVISION, AND HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, IN PARTICULAR THE FACT THAT FOR THE PURPOSES OF DRAWING UP THE LIST OF OFFICIALS ELIGIBLE FOR PROMOTION, THE ECONOMIC AND SOCIAL COMMITTEE CALCULATED THE MINIMUM PERIOD OF SERVICE WITHIN THE MEANING OF ARTICLE 45 OF THE STAFF REGULATIONS IN A WAY WHICH WAS IN CONTRADICTION WITH THE CASE-LAW OF THE COURT ( SEE THE JUDGMENT OF 13 DECEMBER 1984, CITED ABOVE ), THE COURT CONSIDERS THAT IT IS EQUITABLE TO ORDER THE ECONOMIC AND SOCIAL COMMITTEE TO PAY ALL THE COSTS .

Operative part

ON THOSE GROUNDS,

THE COURT ( THIRD CHAMBER )

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION IS DISMISSED AS INADMISSIBLE;

( 2 ) THE ECONOMIC AND SOCIAL COMMITTEE IS ORDERED TO PAY ALL THE COSTS .

LUXEMBOURG, 7 OCTOBER 1987 .