Judgment of the Court (Third Chamber) of 28 October 1980. - Hubert Dautzenberg v Court of Justice of the European Communities. - Promotion of officials. - Case 2/80.



European Court reports 1980 Page 03107

Greek special edition Page 00205



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - POST - CRITERIA FOR ASSESSMENT - IMPORTANCE OF THE POST IN QUESTION - REGRADING OF A POST - CONVERSION OF A POST - PROCEDURE

( STAFF REGULATIONS , ART . 5 ( 1 ) AND ( 4 ))

Summary

IT FOLLOWS FROM ARTICLE 5 ( 1 ) AND ( 4 ) OF THE STAFF REGULATIONS AND ALSO FROM THE GENERAL PRINCIPLES APPLICABLE TO THE PUBLIC SERVICE THAT , ALTHOUGH EACH INSTITUTION HAS A WIDE DISCRETION IN RELATION TO ITS INTERNAL ORGANIZATION AND THE ASSESSMENT OF POSTS , IT IS THE IMPORTANCE OF THE DIFFERENT BRANCHES OR POSTS AS WELL AS OF THE DUTIES AND RESPONSIBILITIES INCUMBENT UPON THEM WHICH MUST BE THE PRINCIPAL CRITERION BY VIRTUE OF WHICH IT IS APPROPRIATE TO DECIDE WHETHER A GIVEN BRANCH MUST BE DIRECTED BY - OR WHETHER A GIVEN POST MUST BE ASSIGNED TO - AN OFFICIAL IN A GRADE CORRESPONDING TO A POST OF HEAD OF DIVISION RATHER THAN A POST OF PRINCIPAL ADMINISTRATOR .

IF IT APPEARS THAT THE NEED FOR SUCH AN ARRANGEMENT WERE TO AFFECT SIMULTANEOUSLY AND IN THE SAME WAY SEVERAL BRANCHES OR POSTS WITHOUT ITS BEING POSSIBLE TO ATTEND TO IT AT THE SAME TIME FOR BUDGETARY REASONS , THE COMPETENT AUTHORITY IS ENTITLED THEN TO TAKE INTO CONSIDERATION THE MERITS AND QUALIFICATIONS OF THE OFFICIALS WHO , AFTER THE CONVERSION OF THE POSTS , MIGHT ASSUME THE DUTIES OF THE REGRADED POST . THE APPLICATION OF THIS CRITERION PRESUPPOSES HOWEVER THAT THE NEEDS OF THE DIFFERENT BRANCHES OR POSTS IN QUESTION HAVE BEEN COMPARED AND ASSESSED .

Parties

IN CASE 2/80

HUBERT DAUTZENBERG , AN OFFICIAL OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , OF 1 RUE JEAN-PIERRE BRASSEUR , LUXEMBOURG-VILLE , GRAND DUCHY OF LUXEMBOURG , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT HIS HOME , REPRESENTED BY JOSE SAELS OF THE BRUSSELS BAR .

APPLICANT ,

V

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , REPRESENTED BY F.-X . ZWICKERT , ITS DIRECTOR OF ADMINISTRATION , RESIDING IN LUXEMBOURG , ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE AT HIS CHAMBERS IN LUXEMBOURG AT 22 COTE D ' EICH ,

DEFENDANT ,

Subject of the case

APPLICATION FOR ANNULMENT OF THE COURT ' S DECISION OF 21 MARCH 1979 PROMOTING MR FETLER TO THE ONLY A 3 POST VACANT AT THAT TIME AND FOR THE PROMOTION OF MR DAUTZENBERG TO THAT GRADE ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 8 JANUARY 1980 THE APPLICANT , THE HEAD OF THE LIBRARY AT THE COURT , BROUGHT AN ACTION FOR ANNULMENT OF THE DECISION OF THAT INSTITUTION DATED 21 MARCH 1979 APPOINTING THE HEAD OF THE FINANCE BRANCH TO THE POST OF HEAD OF DIVISION IN GRADE A 3 .

2 IN THE APPLICANT ' S VIEW THAT DECISION IS IN BREACH OF THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION , WAS TAKEN WITHOUT THE PERSONAL FILES OF THE VARIOUS CANDIDATES BEING COMPREHENSIVELY EXAMINED , IS CONTRARY TO THE INTERESTS OF THE SERVICE AND CONSTITUTES ' ' A DEFLECTION ' ' OF A 3 POSTS GRANTED BY THE BUDGET AUTHORITY ' ' TO BRANCHES OTHER THAN THE LIBRARY ' ' .

3 AN EXAMINATION OF THE COURT ' S FILE INDICATES THAT BECAUSE OF THE INCREASING IMPORTANCE OF THE DUTIES ENTRUSTED TO SOME OF THE BRANCHES OF THE COURT OF JUSTICE , THIS INSTITUTION CONSIDERED THAT IT WAS NECESSARY FOR SUCH BRANCHES TO BE PLACED UNDER THE AUTHORITY OF OFFICIALS WITH THE RANK OF HEAD OF DIVISION AND CONSEQUENTLY IN GRADE A 3 .

4 SUCH AN ORGANIZATION OF THE BRANCHES MAY BE EFFECTED EITHER BY CREATING ADDITIONAL POSTS OF HEAD OF DIVISION OR BY CONVERTING A 4-A 5 POSTS OF PRINCIPAL ADMINISTRATOR , WHICH ARE VACANT OR EVEN ALREADY OCCUPIED BY HEADS OF BRANCHES , INTO POSTS OF HEAD OF DIVISION IN GRADE A 3 . WHEREAS APPLICATION WAS MADE FOR THE CONVERSION OF SEVERAL POSTS , THE BUDGET AUTHORITY GRANTED FOR THE 1979 BUDGET ONLY ONE CONVERSION OF AN A 4 POST INTO AN A 3 POST , WITHOUT HOWEVER STATING WHICH , AND LEAVING THAT TO THE INSTITUTION TO DECIDE .

5 BY PROMOTING THE HEAD OF THE FINANCE BRANCH THE CONTESTED DECISION ASSIGNED THE ONE CONVERTED POST WHICH WAS GRANTED TO THE FINANCE BRANCH WHICH HAS THUS BEEN PLACED UNDER THE AUTHORITY OF A HEAD OF DIVISION . IN FACT THE POST IN QUESTION , BEFORE IT WAS CONVERTED , WAS ALREADY FILLED BY THE SAME OFFICIAL AS A PRINCIPAL ADMINISTRATOR .

6 THE APPLICANT HAS IN SUBSTANCE CALLED IN QUESTION THE COMPATIBILITY OF THAT DECISION WITH THE RULES OF THE STAFF REGULATIONS .

7 AMONGST THE VARIOUS SUBMISSIONS PUT FORWARD IN SUPPORT OF THE APPLICATION IT IS NECESSARY TO EXAMINE FIRST THE SUBMISSION THAT , BY ALLOTTING THE A 3 POST IN THIS WAY , THE DEFENDANT HAS DISREGARDED THE INTERESTS OF THE SERVICE , A CORRECT EVALUATION OF WHICH WOULD HAVE BEEN BOUND TO LEAD , AFTER A COMPARISON OF ALL THE RELEVANT FACTORS , TO THE POST ' S BEING ASSIGNED TO THE APPLICANT IN HIS CAPACITY AS HEAD OF THE LIBRARY .

8 ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS STATES : ' ' THE POSTS COVERED BY THESE STAFF REGULATIONS SHALL BE CLASSIFIED , ACCORDING TO THE NATURE AND IMPORTANCE OF THE DUTIES TO WHICH THEY RELATE , IN FOUR CATEGORIES , A , B , C AND D , IN DESCENDING ORDER OF RANK ' ' . ARTICLE 5 ( 4 ) STATES : ' ' A TABLE SHOWING BASIC POSTS AND CORRESPONDING CAREER BRACKETS IS GIVEN IN ANNEX I . BY REFERENCE TO THIS TABLE EACH INSTITUTION SHALL , AFTER CONSULTING THE STAFF REGULATIONS COMMITTEE REFERRED TO IN ARTICLE 10 , DEFINE THE DUTIES AND POWERS ATTACHING TO EACH BASIC POST ' ' . ACCORDING TO THE DEFINITION OF DUTIES DRAWN UP BY THE DEFENDANT PURSUANT TO THE SAID ARTICLE 5 ( 4 ) THE A 3 CAREER BRACKET CORRESPONDING TO THE POST OF HEAD OF DIVISION IS DESCRIBED AS FOLLOWS :

' ' BASIC POST : HEAD OF DIVISION

DESCRIPTION OF DUTIES :

- DIRECTS AN ADMINISTRATIVE UNIT UNDER THE AUTHORITY OF A DIRECTOR - OR WHERE APPROPRIATE UNDER THE AUTHORITY OF A DIRECTOR-GENERAL - IN A SPECIALIZED FIELD .

- HIGHLY QUALIFIED OFFICIAL WITH THE TASK OF ADVISING ONE BODY OF THE INSTITUTION OR ENGAGED IN STUDIES OR SUPERVISORY WORK UNDER THE AUTHORITY OF A DIRECTOR-GENERAL OR A DIRECTOR .

. . . ' ' .

9 IT FOLLOWS FROM THOSE PROVISIONS AND ALSO FROM THE GENERAL PRINCIPLES APPLICABLE TO THE PUBLIC SERVICE THAT , ALTHOUGH EACH INSTITUTION HAS A WIDE DISCRETION IN RELATION TO ITS INTERNAL ORGANIZATION AND THE ASSESSMENT OF POSTS , IT IS THE IMPORTANCE OF THE DIFFERENT BRANCHES OR POSTS AS WELL AS OF THE DUTIES AND RESPONSIBILITIES INCUMBENT UPON THEM WHICH MUST BE THE PRINCIPAL CRITERION BY VIRTUE OF WHICH IT IS APPROPRIATE TO DECIDE WHETHER A GIVEN BRANCH MUST BE DIRECTED BY - OR WHETHER A GIVEN POST MUST BE ASSIGNED TO - AN OFFICIAL IN A GRADE CORRESPONDING TO A POST OF HEAD OF DIVISION RATHER THAN A POST OF PRINCIPAL ADMINISTRATOR .

10 HOWEVER , IF IT SHOULD APPEAR THAT THE NEED FOR SUCH AN ARRANGEMENT WERE TO AFFECT SIMULTANEOUSLY AND IN THE SAME WAY SEVERAL BRANCHES OR POSTS WITHOUT ITS BEING POSSIBLE , AS WAS THE POSITION IN THIS CASE , TO ATTEND TO IT AT THE SAME TIME BECAUSE THE BUDGET AUTHORITY DID NOT SEE FIT TO GRANT THE NUMBER OF POSTS APPLIED FOR , THE COMPETENT AUTHORITY IS ENTITLED THEN TO TAKE INTO CONSIDERATION THE MERITS AND QUALIFICATIONS OF THE OFFICIALS WHO , AFTER THE CONVERSION OF THE POSTS , MIGHT ASSUME THE DUTIES OF THE REGRADED POST . THE APPLICATION OF THIS CRITERION PRESUPPOSES HOWEVER THAT THE NEEDS OF THE DIFFERENT BRANCHES OR POSTS IN QUESTION HAVE BEEN COMPARED AND ASSESSED .

11 AN EXAMINATION OF THE COURT ' S FILE DOES NOT MAKE IT POSSIBLE TO STATE THAT ALL THESE OBLIGATIONS HAVE BEEN FULFILLED . NO FACTOR HAS COME TO LIGHT PERMITTING THE FINDING THAT AN ASSESSMENT OF THE NEEDS OF THE BRANCHES IN QUESTION PRECEDED THE CONTESTED DECISION . FURTHERMORE , ALTHOUGH THE DECISION OF 5 OCTOBER 1979 WHEREBY THE COURT REJECTS THE APPLICANT ' S COMPLAINT QUOTES THE REQUIREMENTS OF THE DIFFERENT BRANCHES AS BEING ONE OF THE REASONS FOR THE SELECTION , IT DOES SO ONLY AFTER FIRST POINTING OUT THAT THE MERITS OF EACH CANDIDATE AND THEIR CAREERS HAVE BEEN COMPARED .

12 THE CONTESTED DECISION IS THEREFORE ILLEGAL AND MUST BE ANNULLED .

Decision on costs

13 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE COURT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . ANNULS THE COURT ' S DECISION OF 21 MARCH 1979 ;

2 . ORDERS THE COURT TO PAY THE COSTS .