Judgment of the Court (First Chamber) of 16 March 1971. - Giorgio Bernardi v European Parliament. - Case 48-70.



European Court reports 1971 Page 00175

Danish special edition Page 00031

Greek special edition Page 00713

Portuguese special edition Page 00049



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - RULES ON TEMPORARY POSTING - FORMALITIES OF APPOINTMENT

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 7 )

2 . OFFICIALS - RULES ON TEMPORARY POSTING - TEMPORARY APPOINTMENT - JURISDICTION OF THE APPOINTING AUTHORITY

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 7 )

3 . OFFICIALS - ACT ADVERSELY AFFECTING OFFICIALS - UNJUSTIFIED GRANT OF BENEFITS - INFRINGEMENT OF THE PRINCIPLE OF EQUALITY OF TREATMENT

Summary

1 . THE FORMAL REQUIREMENTS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 4, AND IN ARTICLE 45 FOR APPOINTMENT AND PROMOTION CANNOT BE EXTENDED TO CASES OF TEMPORARY POSTINGS . ON THE OTHER HAND THE SECOND PARAGRAPH OF ARTICLE 25 WHICH APPLIES TO THE DETERMINATION OF ADMINISTRATIVE STATUS IS APPLICABLE TO DECISIONS CONCERNING TEMPORARY POSTINGS .

2 . IT FOLLOWS FROM THE COMBINATION OF THE TWO PARAGRAPHS OF ARTICLE 7 OF THE STAFF REGULATIONS THAT THE POWER TO MAKE THE TEMPORARY POSTINGS MENTIONED IN THE SECOND PARAGRAPH BELONGS TO THE AUTHORITY MENTIONED IN THE PREVIOUS PARAGRAPH .

3 . THE CONFERRING OF ADVANTAGES ON CERTAIN OFFICIALS, WHICH IS NOT JUSTIFIED IN THE INTERESTS OF THE SERVICE, IS CAPABLE OF ADVERSELY AFFECTING THEIR IMMEDIATE COLLEAGUES BECAUSE IT INFRINGES THE PRINCIPLES OF EQUALITY OF TREATMENT AND OF OBJECTIVITY WHICH MUST GOVERN THE PUBLIC SERVICE .

Parties

IN CASE 48/70

GIORGIO BERNARDI, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING AT 5 RUE EUGENE-WELTER, LUXEMBOURG-HOWALD, REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL, 17 RUE DES GLACIS, APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALEX BONN, 22 COTE-D' EICH, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE IMPLIED REJECTION BY THE DEFENDANT - A REJECTION LATER CONFIRMED BY LETTER OF 25 JUNE 1970 - OF THE COMPLAINT OF THE APPLICANT SEEKING, IN ESSENCE,

( 1 ) THE ESTABLISHMENT OF NEW CRITERIA GOVERNING THE SENDING OF OFFICIALS IN TURN TO STRASBOURG ON MISSION ON THE OCCASION OF MEETINGS OF THE EUROPEAN PARLIAMENT, AND

( 2 ) THE ANNULMENT OF TWO TEMPORARY POSTINGS GRANTED SUCCESSIVELY TO ONE OF THE COLLEAGUES OF THE APPLICANT .

Grounds

1 BY APPLICATION LODGED ON 6 AUGUST 1970 THE APPLICANT BROUGHT AN ACTION BEFORE THE COURT CONCERNING ON THE ONE HAND AN IMPLIED DECISION OF REJECTION CONSEQUENT UPON THE SILENCE OF THE DEFENDANT AND AN EXPRESS DECISION OF REJECTION OF 25 JUNE 1970 CONCERNING THE GRANT OF TRAVEL ORDERS FOR SESSIONS OF THE EUROPEAN PARLIAMENT IN STRASBOURG AND CONCERNING ON THE OTHER HAND THE ANNULMENT OF THE DECISIONS OF 4 DECEMBER 1968 AND OF 5 JANUARY 1970 APPOINTING ON BOTH OCCASIONS A COLLEAGUE OF THE APPLICANT TO A TEMPORARY POSTING AS TRANSLATOR .

THE APPLICATION IN SO FAR AS IT RELATES TO THE MISSION ORDERS

2 IN HIS ORIGINATING APPLICATION THE APPLICANT, WHILST CRITICIZING THE MANNER IN WHICH IN THE ITALIAN SECTION OF THE LANGUAGE SERVICE OF THE EUROPEAN PARLIAMENT THE TRAVEL ORDERS ARE ALLOCATED TO TRANSLATORS ON THE OCCASION OF THE SESSIONS OF THE PARLIAMENT IN STRASBOURG, FAILED TO FORMULATE ANY SPECIFIC CLAIM OR CONCLUSION IN THIS RESPECT .

3 IN HIS REPLY HE SUBMITTED THAT THE COURT OF JUSTICE SHOULD DECIDE THAT THE EUROPEAN PARLIAMENT " MUST IN THE INTEREST OF THE SERVICE TAKE ACCOUNT IN RESPECT OF ITS TRAVEL ORDERS OF THE COMPARATIVE MERITS OF SERVANTS AND CANNOT GRANT A MISSION OF A PERMANENT NATURE TO A TEMPORARY SERVANT TO THE DISADVANTAGE OF OTHER OLDER ESTABLISHED SERVANTS WHO ARE BETTER QUALIFIED ".

4 THESE CONCLUSIONS WERE NOT FORMULATED IN THE APPLICATION - CONTRARY TO ARTICLE 38 OF THE RULES OF PROCEDURE OF THE COURT - AND ARE THEREFORE INADMISSIBLE .

5 FURTHERMORE, BY GIVING A RULING IN THE TERMS SOUGHT THE COURT WOULD BE INTERFERING WITH THE EXERCISE OF THE POWERS OF THE PARLIAMENT .

6 CONSEQUENTLY THE FIRST HEAD OF THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .

THE APPLICATION FOR ANNULMENT

7 THE APPLICANT ARGUES IN THE FIRST PLACE THAT BECAUSE OF THEIR NATURE APPOINTMENTS TO TEMPORARY POSTINGS ARE EQUIVALENT TO A " PRELIMINARY PROMOTION ", SINCE ACCORDING TO HIM THE FACT OF HAVING OCCUPIED A POST TEMPORARILY PUTS THE PERSON CONCERNED IN A BETTER POSITION FOR POSSIBLE PROMOTION TO THAT POST .

8 CONSEQUENTLY, ACCORDING TO THE APPLICANT, UNDER THE THIRD PARAGRAPH OF ARTICLE 5 OF THE STAFF REGULATIONS THE REQUIREMENT OF PUBLICITY LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 4, THE REQUIREMENT OF THE POSTING OF DECISIONS IN THE PREMISES OF THE INSTITUTION LAID DOWN IN THE SECOND ( SIC ) PARAGRAPH OF ARTICLE 25 AND THE PROVISIONS OF ARTICLE 45 OF THE STAFF REGULATIONS ARE APPLICABLE BY ANALOGY .

9 IN ANY CASE THE DECISIONS PROVIDED FOR IN ARTICLE 7 ( 2 ) ARE SAID TO FALL ONLY WITHIN THE JURISDICTION OF THE APPOINTING AUTHORITY .

10 SINCE THIS LINE OF ARGUMENT AFFECTS OTHER POINTS IN THE DISPUTE, EVEN THAT OF THE ADMISSIBILITY OF THE APPLICATION, IT IS APPROPRIATE TO CONSIDER IT BEFORE ANY OTHER SUBMISSION .

11 IN THE DRAFTING OF THE PROVISIONS OF THE STAFF REGULATIONS THEIR AUTHORS ENDEAVOURED TO INDICATE THEIR EXACT SCOPE BY PRECISE WORDING .

12 THERE IS NO REASON TO EXTEND THEIR SCOPE BY ANALOGY TO SITUATIONS TO WHICH THEY DO NOT EXPRESSLY REFER .

13 CONSEQUENTLY THE FORMAL REQUIREMENTS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 4 AND IN ARTICLE 45 WHICH MENTION ONLY APPOINTMENT AND PROMOTION CANNOT BE EXTENDED TO CASES OF TEMPORARY POSTINGS WHICH AMOUNT NEITHER TO AN APPOINTMENT NOR TO A PROMOTION WITHIN THE STRICT MEANING OF THESE EXPRESSIONS .

14 ON THE OTHER HAND, THE SECOND PARAGRAPH OF ARTICLE 25 WHICH APPLIES INTER ALIA TO DECISIONS DETERMINING ADMINISTRATIVE STATUS MUST BE REGARDED AS APPLICABLE ALSO TO DECISIONS CONCERNING TEMPORARY POSTINGS WITHIN THE MEANING OF ARTICLE 7 ( 2 ).

15 LASTLY IT FOLLOWS FROM THE COMBINATION OF THE FIRST TWO PARAGRAPHS OF ARTICLE 7 THAT THE POWER TO MAKE TEMPORARY POSTINGS MENTIONED IN THE SECOND PARAGRAPH BELONGS TO THE AUTHORITY MENTIONED IN THE PREVIOUS PARAGRAPH .

THE ADMISSIBILITY OF THE APPLICATION

16 THE APPLICANT REQUESTS THE ANNULMENT OF THE DECISIONS BY WHICH MRS ANNA-MARIA DELL' OMODARME, AN ASSISTANT TRANSLATOR, WAS CALLED UPON TO OCCUPY TEMPORARILY A POST OF TRANSLATOR FROM 15 DECEMBER 1968 TO 15 SEPTEMBER 1969 AND FROM 5 JANUARY 1970 RESPECTIVELY .

17 THE DEFENDANT CONSIDERS THAT THE APPLICATION AGAINST THE FIRST DECISION IS OUT OF TIME AND CONSEQUENTLY INADMISSIBLE, SINCE THE APPEAL THROUGH OFFICIAL CHANNELS AGAINST THAT DECISION WAS LODGED ON 6 APRIL 1970, THAT IS TO SAY, MORE THAN THREE MONTHS AFTER THE NOTIFICATION OF THE DECISION TO THE PERSON CONCERNED .

18 BY THE EXPRESSION " NOTIFICATION TO THE PERSON CONCERNED " ARTICLE 91 OF THE STAFF REGULATIONS CLEARLY APPLIES TO THE WRITTEN COMMUNICATION TO THE OFFICIAL CONCERNED WHICH THE FIRST PARAGRAPH OF ARTICLE 25 OF THE STATUTE REQUIRES IN THE CASE OF EVERY DECISION RELATING TO A SPECIFIC INDIVIDUAL .

19 IT IS NOT DISPUTED THAT AS REGARDS THE FIRST OF THE TWO CONTESTED DECISIONS, WRITTEN COMMUNICATION TOOK PLACE MORE THAN THREE MONTHS BEFORE 6 APRIL 1970 .

20 THE APPLICANT CONSIDERS, HOWEVER, THAT THE EXPIRATION OF THE LIMITATION PERIOD FOR MAKING AN APPLICATION CANNOT BE RAISED AGAINST HIM, SINCE THE COMPULSORY POSTING OF THE CONTESTED DECISION IN THE PREMISES OF THE INSTITUTION DID NOT TAKE PLACE .

21 THE DEFENDANT, HOWEVER, HAS SUFFICIENTLY SHOWN BY THE PRODUCTION OF THE DOCUMENTS POSTED THAT IN THE PRESENT CASE THE DECISION WAS POSTED FROM 19 DECEMBER 1968 TO 2 JANUARY 1969 .

22 CONSEQUENTLY THE OBJECTION OF INADMISSIBILITY IS WELL FOUNDED SO THAT THE APPLICATION MUST BE DISMISSED TO THE EXTENT TO WHICH IT REFERS TO THE FIRST OF THE TWO CONTESTED DECISIONS .

23 THE DEFENDANT ALSO ARGUES THAT THE APPLICANT HAS NO INTEREST IN ASKING FOR THE ANNULMENT OF THE DISPUTED DECISIONS .

24 IT ALLEGES IN THIS RESPECT THAT IF, AS THE APPLICANT MAINTAINS, THE DECISION ON THE TEMPORARY POSTING MUST BE ANNULLED BECAUSE OF THE LACK OF ANY APPRECIABLE DIFFERENCE BETWEEN THE DUTIES CARRIED OUT BY MRS DELL' OMODARME IN HER GRADE AND THOSE IN THE TEMPORARY POST WHICH WAS GIVEN TO HER, THERE WOULD NOT HAVE BEEN A TEMPORARY POSTING, SO THAT THE APPLICANT HIMSELF WOULD HAVE NO INTEREST IN ASKING FOR THE ANNULMENT OF THE CONTESTED MEASURE, SINCE FOR THE SAME REASON THERE COULD BE NO QUESTION OF HIS BEING GIVEN THE SAID TEMPORARY POSTING .

25 IF IT WERE SHOWN THAT THE TEMPORARY APPOINTMENT HAD NO PURPOSE, IT WOULD FOLLOW THAT IT DID NOT TAKE PLACE IN THE INTEREST OF THE SERVICE, BUT HAD THE PURPOSE OF GRANTING THE SERVANT WHO BENEFITED FROM IT AN UNJUSTIFIED ADVANTAGE, PARTICULARLY BY WAY OF DIFFERENTIAL ALLOWANCE .

26 FURTHERMORE THE REPEATED GRANT OF TEMPORARY POSTS IS CAPABLE OF PUTTING A SERVANT IN AN ADVANTAGEOUS SITUATION FOR POSSIBLE PROMOTIONS OR COMPETITIONS .

27 THE CONFERRING OF SUCH ADVANTAGES ON CERTAIN OFFICIALS, WHICH IS NOT JUSTIFIED IN THE INTERESTS OF THE SERVICE, IS CAPABLE OF ADVERSELY AFFECTING THEIR IMMEDIATE COLLEAGUES BECAUSE IT INFRINGES THE PRINCIPLES OF EQUALITY OF TREATMENT AND OF OBJECTIVITY WHICH MUST GOVERN THE PUBLIC SERVICE .

28 THE CONTESTED MEASURES WERE THUS CAPABLE OF AFFECTING THE APPLICANT ADVERSELY .

29 THE APPLICATION IS CONSEQUENTLY ADMISSIBLE .

THE SUBMISSION OF LACK OF JURISDICTION

30 THE APPLICANT CLAIMS THAT BY ADOPTING THE CONTESTED DECISION THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT EXCEEDED THE POWERS CONFERRED ON HIM BY THE DECISION OF THE BUREAU OF 12 DECEMBER 1962, DETERMINING THE APPOINTING AUTHORITIES FOLLOWING THE IMPLEMENTATION OF THE STAFF REGULATIONS OF OFFICIALS .

31 THAT DECISION PROVIDES THAT " THE POWERS DEVOLVING UNDER THE STAFF REGULATIONS OF OFFICIALS UPON THE APPOINTING AUTHORITY ... SHALL BE EXERCISED ... BY THE PRESIDENT, ON A PROPOSAL OF THE SECRETARY-GENERAL ... FOR APPLICATION TO OFFICIALS IN CATEGORY A UP TO GRADE 7 INCLUSIVE AND OF THE LANGUAGE SERVICE UP TO GRADE 6 INCLUSIVE OF PROVISIONS 1, 7, 11 ETC . ... ".

32 BY MENTIONING THE OFFICIALS IN THE GRADES INDICATED, THAT DECISION CLEARLY INCLUDES BY THAT EXPRESSION THE APPLICATION OF THE SAID ARTICLES FOR THE PURPOSES OF FILLING POSTS IN THOSE GRADES .

33 OTHERWISE THE PROMOTION OF AN OFFICIAL FROM GRADE A 8 OR B 1 TO A POST IN GRADE A 5, 6 OR 7, AS WELL AS THE APPOINTMENT OF PERSONS ENGAGED FROM OUTSIDE TO ALL THE GRADES IN CATEGORY A, WULD NOT BE COVERED BY THE PROVISION QUOTED AND WOULD THEREFORE FALL WITHIN THE JURISDICTION OF THE SECRETARY-GENERAL, WHICH WOULD BE CONTRARY TO THE WORDING OF THE DECISION .

34 CONSEQUENTLY THE APPLICATION OF ARTICLE 7 OF THE STAFF REGULATIONS FOR THE PURPOSE OF CALLING UPON AN OFFICIAL TO OCCUPY TEMPORARILY A POST IN THE CAREER BRACKET OF TRANSLATOR COVERING GRADES L/A 5 AND L/A 6 IS WITHIN THE JURISDICTION OF THE PRESIDENT ACTING UPON A PROPOSAL OF THE SECRETARY-GENERAL .

35 HOWEVER, IT IS ESTABLISHED AND NOT DISPUTED THAT THE CONTESTED DECISION WAS NOT TAKEN BY THE PRESIDENT BUT BY ANOTHER AUTHORITY .

36 IT FOLLOWS FROM THE FOREGOING THAT THE CONTESTED DECISION MUST BE ANNULLED .

Decision on costs

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

38 SINCE THE DEFENDANT HAS SUBSTANTIALLY FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT OF 6 JANUARY 1970 CALLING UPON MRS DELL' OMODARME TEMPORARILY TO OCCUPY A POST OF TRANSLATOR;

2 . ORDERS THE EUROPEAN PARLIAMENT TO PAY THE COSTS .