Judgment of the Court (Second Chamber) of 26 February 1981. - Walter Korter v Council of the European Communities. - Staff regulations of officials - Request for change of posting. - Case 148/79.



European Court reports 1981 Page 00615



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - TRANSFER - CRITERIA - PERMANENT POSTING

( STAFF REGULATIONS OF OFFICIALS , ART . 7 ( 1 ))

2 . PROCEDURE - COSTS - COSTS UNREASONABLY OR VEXATIOUSLY CAUSED

( RULES OF PROCEDURE , SECOND SUBPARAGRAPH OF ART . 69 ( 3 ))

Summary

1 . THE CONCEPT OF TRANSFER , WITHIN THE MEANING OF ARTICLE 7 OF THE STAFF REGULATIONS OF OFFICIALS , RELATES TO PERMANENT POSTINGS WHICH AS SUCH HAVE A DIRECT BEARING ON OFFICIALS ' CAREER PROSPECTS .

2 . WHERE THE OCCURRENCE AND CONTINUATION OF A DISPUTE BETWEEN AN OFFICIAL AND THE INSTITUTION TO WHICH HE BELONGS WERE DUE IN PART TO THE ATTITUDE OF THAT INSTITUTION ' S ADMINISTRATION , ESPECIALLY TO THE LEGAL AMBIGUITY WHICH IT MAINTAINED IN REGARD TO THE NATURE , UNDER THE STAFF REGULATIONS , OF A PROCEDURE FOR FILLING A VACANT POST AND TO ITS REFUSAL TO GIVE ANY EXPLANATION OF THE REASONS FOR ITS ACTION , WHICH WERE DISCLOSED ONLY DURING THE PROCEEDINGS BEFORE THE COURT , AN OFFICIAL MAY NOT BE CRITICIZED FOR HAVING BROUGHT AN ACTION IN RESPONSE TO WHAT HE HAD REASON TO REGARD AS ARBITRARY CONDUCT ON THE PART OF THE ADMINISTRATION IN REGARD TO HIM . IT IS PROPER IN SUCH A CASE TO APPLY THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE AND TO ORDER THE ADMINISTRATION , EVEN IF SUCCESSFUL , TO PAY COSTS WHICH THE COURT CONSIDERS THE ADMINISTRATION TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE APPLICANT TO INCUR .

Parties

IN CASE 148/79

WALTER KORTER , AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY HANS-GEORG HORNUNG , AN ADVOCATE IN TRIER , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF PIERRE-PAUL SCHLEIMER , 78 GRAND ' RUE ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY PIERRE L . PRUM , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MAITRE PRUM , 22 COTE D ' EICH ,

DEFENDANT ,

Subject of the case

APPLICATION FOR AN ORDER COMPELLING THE COUNCIL TO TAKE A DECISION SUSCEPTIBLE TO LEGAL ACTION ON THE APPLICANT ' S REQUEST FOR A CHANGE OF POSTING ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 25 SEPTEMBER 1979 , MR KORTER , AN ADMINISTRATOR AT THE GENERAL SECRETARIAT OF THE COUNCIL , BROUGHT AN ACTION TO OBTAIN A FORMAL DECISION FROM THE APPOINTING AUTHORITY ON HIS APPLICATION FOR A CHANGE OF POSTING WHICH HE SUBMITTED ON 27 SEPTEMBER 1978 PURSUANT TO A NOTICE PUBLISHED BY THE ADMINISTRATION .

2 FROM THE FILE IT APPEARS - AND THESE FACTS ARE NOT DISPUTED - THAT ON 11 AUGUST 1978 THE GENERAL SECRETARIAT OF THE COUNCIL PUBLISHED STAFF NOTE NO 189/78 WITH THE HEADING ' ' APPLICATION FOR A CHANGE OF POSTING ( TRANSFER ) ' ' . THAT NOTICE INFORMED OFFICIALS OF THE GENERAL SECRETARIAT OF THE COUNCIL THAT A POST FOR AN ADMINISTRATOR IN GRADE A 7/A 6 WAS TEMPORARILY VACANT FOR ONE YEAR IN DIRECTORATE-GENERAL E , DIRECTORATE III ( ACCESSION NEGOTIATIONS ). AFTER DESCRIBING THE DUTIES INVOLVED AND THE QUALIFICATIONS REQUIRED THE NOTICE INVITED INTERESTED OFFICIALS TO SUBMIT AN APPLICATION FOR A CHANGE OF POSTING TO THE ADMINISTRATION IN THE PERSON OF THE HEAD OF THE PERSONNEL BRANCH . ONLY OFFICIALS ALREADY OCCUPYING A POST IN GRADE A 7/A 6 WERE ELIGIBLE TO APPLY . THE NOTICE STATED THAT THERE WAS NO NEED TO COMPLETE AN APPLICATION FORM ; A NOTE ACCOMPANIED BY A BRIEF CURRICULUM VITAE WAS SUFFICIENT .

3 IN RESPONSE TO THAT NOTICE , ON 27 SEPTEMBER 1978 , THE APPLICANT SUBMITTED TO THE HEAD OF THE PERSONNEL BRANCH AN APPLICATION FOR A CHANGE OF POSTING . ON 6 FEBRUARY 1979 THAT OFFICIAL SENT HIM A NOTE STATING : ' ' IN REPLY TO YOUR REQUEST FOR A TRANSFER TO DIRECTORATE III OF DIRECTORATE-GENERAL E , I REGRET TO INFORM YOU THAT NO APPLICATION HAS BEEN ACCEPTED . ' '

4 AFTER THAT COMMUNICATION THE APPLICANT EXCHANGED CORRESPONDENCE WITH THE ADMINISTRATION ; IN PARTICULAR HE CHALLENGED THE RIGHT OF THE PERSON WHO HAD SIGNED THAT REPLY TO DO SO . THE ADMINISTRATION REPLIED THAT THE COMMUNICATION IN QUESTION WAS ' ' PURELY INFORMATIVE ' ' IN NATURE ( LETTER DATED 19 MARCH 1979 ) AND THE APPLICANT INSISTED ON HAVING A FORMAL DECISION TAKEN BY THE APPOINTING AUTHORITY IN REPLY TO HIS APPLICATION .

5 HAVING FAILED TO OBTAIN SATISFACTION , ON 26 APRIL 1979 THE APPLICANT SENT A FORMAL COMPLAINT TO THE COUNCIL PURSUANT TO ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS . HE REQUESTED THAT EITHER THE APPLICATION WHICH HE HAD SUBMITTED ON 27 SEPTEMBER 1978 SHOULD BE ACCEPTED OR AT LEAST THE APPOINTING AUTHORITY SHOULD TAKE A DECISION ON THAT APPLICATION IN ACCORDANCE WITH ARTICLE 7 OF THE STAFF REGULATIONS .

6 IN HIS REPLY OF 27 JUNE 1979 THE SECRETARY-GENERAL OF THE COUNCIL , REFERRING TO THE ADDITIONAL NEGOTIATING PROTOCOL CONCLUDED IN BRUSSELS ON 5 APRIL 1978 BETWEEN THE SECRETARY-GENERAL AND THE STAFF TRADE-UNION ORGANIZATIONS ( HEREINAFTER REFERRED TO AS THE ' ' PROTOCOL OF 5 APRIL 1978 ' ' , THE TEXT OF WHICH WAS PUBLISHED IN STAFF NOTE NO 77/78 OF 14 APRIL 1978 ), INFORMED THE APPLICANT THAT HE COULD NOT REGARD HIS LETTER AS A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS AND ADDED : ' ' IT IS CLEAR THAT , WHILST THE APPOINTING AUTHORITY HAS NEVER TAKEN A DECISION IN THIS MATTER IN YOUR CASE , THERE IS NO QUESTION OF IT HAVING ' FAILED TO ADOPT A MEASURE PRESCRIBED BY THE STAFF REGULATIONS ' IN THE CASE OF A PROCEDURE WHICH IS NOT EVEN LAID DOWN IN THE STAFF REGULATIONS AND IN WHICH IT IS CLEARLY STATED WHO IS TO MAKE THE CHOICE . ' '

7 AS TO THE SUBSTANCE OF THE COMPLAINT , THE SECRETARY-GENERAL CONFIRMED THE REPLY ALREADY GIVEN BY THE ADMINISTRATION TO THE EFFECT THAT THE PERSON IN CHARGE OF THE PERSONNEL BRANCH , TO WHOM THE APPLICANT HAD SENT HIS APPLICATION , WAS THE PERSON EMPOWERED TO SIGN THE LETTER OF 6 FEBRUARY 1979 REFUSING THAT APPLICATION .

8 IN CONCLUSION THE SECRETARY-GENERAL OBSERVED THAT THE NOTE ADDRESSED BY THE HEAD OF THE PERSONNEL BRANCH TO THE OFFICIALS WHO HAD SUBMITTED APPLICATIONS UNDER THE PROCEDURE BEGUN BY STAFF NOTE NO 189/78 WAS SIMPLY AN ORGANIZATIONAL MEASURE , TAKEN PURSUANT TO THE PROTOCOL OF 5 APRIL 1978 , AND NOT A DECISION WITHIN THE MEANING OF ARTICLE 7 OF THE STAFF REGULATIONS , WHICH HE CLAIMED HAS NO APPLICATION IN THIS CASE .

9 IT IS AGAINST THAT COMMUNICATION FROM THE SECRETARY-GENERAL THAT THE APPLICANT HAS BROUGHT HIS ACTION WITHIN THE PRESCRIBED PERIOD . IN HIS APPLICATION MR KORTER ADVANCES A NUMBER OF ARGUMENTS ALLEGING NON-COMPLIANCE BY THE COUNCIL WITH ARTICLES 7 , 25 AND 90 OF THE STAFF REGULATIONS . THE THRUST OF HIS ARGUMENT IS THAT THE PROCEDURE BEGUN BY STAFF NOTE NO 189/78 WAS A TRANSFER PROCEDURE WITHIN THE MEANING OF ARTICLE 7 OF THE STAFF REGULATIONS ; AS A RESULT , A REASONED DECISION SHOULD HAVE BEEN ADOPTED IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS . AS IT CONCERNED AN OFFICIAL IN CATEGORY A , THAT DECISION SHOULD HAVE COME FROM THE SECRETARY-GENERAL OF THE COUNCIL HIMSELF , ACTING IN HIS CAPACITY AS APPOINTING AUTHORITY FOR THAT CATEGORY OF OFFICIALS , AS STIPULATED BY COUNCIL DECISION 63/9 OF 14 MAY 1962 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P . 4 ). ACCORDINGLY , IN HIS COMMUNICATION OF 27 JUNE 1979 , THE SECRETARY-GENERAL FAILED IN HIS DUTY TO ADOPT A DEFINITE POSITION ALTHOUGH A FORMAL COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS HAD BEEN MADE TO HIM . THE APPLICANT CONSIDERS THAT THE PROTOCOL OF 5 APRIL 1978 , TO WHICH THE SECRETARY-GENERAL REFERS FOR JUSTIFICATION OF THE ADMINISTRATION ' S CONDUCT , COULD NOT DEROGATE FROM THE MANDATORY REQUIREMENTS OF THE STAFF REGULATIONS .

10 BY A SEPARATE DOCUMENT LODGED PURSUANT TO ARTICLE 91 OF THE STAFF REGULATIONS THE COUNCIL CHALLENGED THE ADMISSIBILITY OF THE ACTION AND REQUESTED THE COURT TO DETERMINE THAT ISSUE WITHOUT GOING INTO THE SUBSTANCE OF THE CASE . AFTER TAKING COGNIZANCE OF THE APPLICANT ' S OBSERVATIONS , BY AN ORDER DATED 13 FEBRUARY 1980 THE COURT ( SECOND CHAMBER ) DECIDED TO DEAL WITH THE PRELIMINARY OBJECTION AND MERITS TOGETHER .

11 THE COUNCIL ' S PRINCIPAL CONTENTION IS THAT THE ACTION BE DISMISSED AS INADMISSIBLE . IT SUBMITS THAT THE PROCEDURE BEGUN BY STAFF NOTE NO 189/78 WAS MERELY AN ' ' ADMINISTRATIVE MEASURE ' ' ADOPTED PURSUANT TO THE PROTOCOL OF 5 APRIL 1978 , IN WHICH PARAGRAPH ( 1 ) OF PART IV ( MOBILITY ) PROVIDES THAT :

' ' ANY POST WHICH BECOMES AVAILABLE , WITH THE EXCEPTION OF POSTS TO BE FILLED BY TRANSFER ON HEALTH GROUNDS AND OF THE POSTS REFERRED TO IN POINT III.5 OF THE ANNEX TO THE NEGOTIATING PROTOCOL OF 12 JUNE 1975 , SHALL BE COMMUNICATED TO THE STAFF IN THE FORM OF A NOTIFICATION OF TRANSFER , TOGETHER WITH A DESCRIPTION OF THE DUTIES AND AN INVITATION TO SUBMIT APPLICATIONS .

THE IMMEDIATE SUPERIOR SHALL BE AT LIBERTY TO CHOOSE EITHER FROM CANDIDATES APPLYING FOR TRANSFERS AS A RESULT OF SUCH NOTIFICATION OR FROM OTHER CANDIDATES . THIS CHOICE MAY BE MADE ONLY IN ACCORDANCE WITH THE CRITERIA OF THE INTERESTS OF THE SERVICE . ' '

12 THE COUNCIL SUBMITS THAT WHEN VIEWED IN THE LIGHT OF THAT PROVISION THE COMMUNICATIONS SENT TO THE APPLICANT WERE PURELY FOR INFORMATION AND CANNOT BE REGARDED AS DECISIONS FOR THE PURPOSE OF ARTICLES 7 OR 25 OF THE STAFF REGULATIONS .

13 AS FAR AS THE SUBSTANCE OF THE CASE IS CONCERNED , THE COUNCIL CLAIMS THAT IT LAWFULLY EXERCISED ITS DISCRETION WITH REGARD TO THE APPLICATIONS WHICH WERE SUBMITTED TO IT AFTER PUBLICATION OF THE NOTICE AND THAT IT IS CLEARLY ESTABLISHED BY THE CASE-LAW OF THE COURT THAT THE UNFAVOURABLE REPLY GIVEN TO THE APPLICANT DID NOT HAVE TO STATE THE REASONS ON WHICH IT WAS BASED .

14 IN ANSWER TO A QUESTION PUT TO IT BY THE COURT , THE COUNCIL STATED THAT THE PUBLICATION OF STAFF NOTE NO 189/78 ATTRACTED FOUR APPLICATIONS ; ONE WAS HELD TO BE INADMISSIBLE AND ALTHOUGH THE REMAINING THREE APPLICANTS , INCLUDING THE APPLICANT IN THIS CASE , FULFILLED THE FORMAL CONDITIONS THEY DID NOT MEET THE SPECIFIC REQUIREMENTS LAID DOWN FOR THE VACANT POST .

15 EXAMINATION OF THE PAPERS PLACED BEFORE THE COURT AND OF THE ARGUMENTS ADVANCED BY THE PARTIES MAKES IT EVIDENT THAT THE MAIN CAUSE OF THE DISPUTE RESIDES IN THE UNCERTAINTY SURROUNDING THE NATURE OF THE VACANCY ADVERTISED IN STAFF NOTE NO 189/78 IN REGARD TO THE PROVISIONS OF THE STAFF REGULATIONS . THAT NOTICE MENTIONED A POST AS AN ADMINISTRATOR PROVISIONALLY VACANT FOR ONE YEAR AND INVITED OFFICIALS INTERESTED TO SUBMIT ' ' AN APPLICATION FOR A CHANGE OF POSTING ' ' ; HOWEVER , ONLY OFFICIALS ALREADY OCCUPYING A POST IN THE SAME CATEGORY AND GRADE AS THE POST TO BE FILLED WERE ELIGIBLE TO APPLY . ACCORDING TO THE STAFF NOTE THE VACANT POST , WHICH WAS CONNECTED WITH THE COUNCIL ' S WORK CONCERNING ACCESSION NEGOTIATIONS , CALLED FOR PARTICULAR QUALITIES SUCH AS THE ABILITY TO ANALYSE AND ASSIMILATE DATA , A SENSE OF ORGANIZATION AND METHOD , THE CAPACITY TO ADAPT TO NEW FIELDS AND A THOROUGH KNOWLEDGE OF LANGUAGES .

16 IT SEEMS FROM THAT NOTICE AS A WHOLE THAT AN OFFICIAL FROM THE SECRETARIAT WAS TO BE GIVEN THE CHANCE TO PROVE HIS ABILITIES IN A SPECIAL FIELD OF ACTIVITY FOR A LIMITED PERIOD AND WITHOUT ANY CHANGE OF GRADING UNDER THE STAFF REGULATIONS . HENCE , IT IS DOUBTFUL WHETHER ON AN OBJECTIVE VIEW THE CHANGE OF POSTING REFERRED TO IN THAT NOTICE CORRESPONDS TO THE CONCEPT OF TRANSFER WITHIN THE MEANING OF ARTICLE 7 OF THE STAFF REGULATIONS , WHICH ENVISAGES PERMANENT POSTINGS WHICH AS SUCH HAVE A DIRECT BEARING ON OFFICIALS ' CAREER PROSPECTS . THE NOTICE OUT OF WHICH THE DISPUTE AROSE WAS AMBIGUOUS IN THIS REGARD , IN SO FAR AS IT IMPLIED THAT THERE WAS A POSSIBILITY OF A ' ' TRANSFER ' ' , BUT STARTED A PROCEDURE WHICH WAS NOT IN KEEPING WITH THE REQUIREMENTS OF THE STAFF REGULATIONS AS REGARDS TRANSFERS PROPERLY SO CALLED . THAT UNCERTAINTY CONTINUED DURING THE COURSE OF THE SUCCESSIVE COMPLAINTS OF THE APPLICANT UNTIL THE LETTER OF 27 JUNE 1979 IN WHICH THE SECRETARY-GENERAL REFUSED TO REGARD THE PROCEDURE BEGUN BY STAFF NOTE NO 189/78 AS A PROCEDURE FOR A TRANSFER PROPERLY SO CALLED , IN SPITE OF THE WORDS USED .

17 IT APPEARS FROM THE FOREGOING THAT THE APPLICANT ' S COMPLAINTS HAD SOME JUSTIFICATION IN SO FAR AS HE WAS PROTESTING AGAINST THE FACT THAT THE POSITION OF OFFICIALS UNDER THE STAFF REGULATIONS MAY BE AFFECTED BY PARALLEL PROCEDURES NOT COVERED BY THE SAFEGUARDS IN THE STAFF REGULATIONS . HOWEVER , AT THE SAME TIME IT MUST BE SAID THAT HE HAS NOT BEEN ABLE TO DEMONSTRATE THE EXISTENCE OF AN ACT ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS , EVEN THOUGH AFTER PUBLICATION OF THE ANNOUNCEMENT IN STAFF NOTE NO 189/78 THE ADMINISTRATION DECIDED NOT TO CONSIDER ANY OF THE APPLICATIONS SUBMITTED . AS THE COUNCIL HAS RIGHTLY POINTED OUT , THE APPLICANT HAD NO RIGHT TO THE POST FOR WHICH HE APPLIED . SINCE THE ADMINISTRATION HAS DISCONTINUED THE PROCEDURE IN ISSUE , THE APPLICANT HAS NO INTEREST IN SEEKING TO OBTAIN A FORMAL DECISION IN THE CONTEXT OF THAT PROCEDURE .

18 THUS IT FOLLOWS THAT THE ACTION IS INADMISSIBLE .

Decision on costs

19 HOWEVER , THE FOREGOING SHOULD BE TAKEN INTO ACCOUNT IN THE ALLOCATION OF COSTS . IT SEEMS IN FACT THAT THE OCCURRENCE AND CONTINUATION OF THE DISPUTE WERE DUE IN PART TO THE ATTITUDE OF THE COUNCIL ' S ADMINISTRATION , ESPECIALLY TO THE LEGAL AMBIGUITY WHICH IT MAINTAINED IN REGARD TO THE NATURE , UNDER THE STAFF REGULATIONS , OF THE POSSIBLE TRANSFER ANNOUNCED IN STAFF NOTE NO 189/78 AND TO ITS REFUSAL TO GIVE THE APPLICANT ANY EXPLANATION OF THE REASONS FOR ITS ACTION , WHICH WERE DISCLOSED ONLY DURING THE PROCEEDINGS BEFORE THE COURT . UNDER THOSE CIRCUMSTANCES THE APPLICANT CANNOT BE CRITICIZED FOR HAVING BROUGHT AN ACTION IN RESPONSE TO WHAT HE HAD REASON TO REGARD AS ARBITRARY CONDUCT ON THE PART OF THE ADMINISTRATION IN RELATION TO HIM . ACCORDINGLY , IT IS PROPER TO APPLY THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE , WHICH STATES THAT : ' ' 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 . ' '

20 THEREFORE THE COUNCIL SHOULD BE MADE TO BEAR THE WHOLE OF THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION AS INADMISSIBLE ;

2.ORDERS THE COUNCIL TO PAY THE WHOLE OF THE COSTS , INCLUDING THOSE OF THE APPLICANT .