JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

28 February 1996

Case T-15/95

Nuno do Paço Quesado

v

Commission of the European Communities

‛Officials — Annulment of the Commission's decision establishing the applicant's classification — Reinstatement after secondment at applicant's request’

Full text in French II-171

Application for:

annulment of the Commission's decision of 1 March 1994 establishing the applicant's classification, on his reinstatement in the Commission's translation service after secondment at his request, in Grade LA 5, Step 1, with effect from 1 April 1994.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant entered the service of the Commission on 1 January 1986 and was classified in Grade A 7, Step 1. He was assigned to the Translation Service. At his request he was seconded, with effect from 1 October 1987, to the European Centre for the Development of Vocational Training. His secondment was repeatedly extended up to 30 September 1990.

After passing Open Competition COM/LA/5/88, the applicant was appointed Principal Translator and assigned to the Commission's Translation Service, classified in Grade LA 5, Step 1, with effect from 1 October 1990. His seniority in step was fixed at the same date. However, at his request, his secondment was further extended by a number of decisions, up to 30 September 1994.

Further to his request, by note dated 16 November 1993, the applicant was informed of his reinstatement with effect from 1 April 1994 and, by decision of the Director General for Personnel and Administration of 1 March 1994, was assigned to the Translation Service, classified in Grade LA 5, Step 1, with effect from 1 April 1994. By registered letter the applicant subsequently requested the annulment of that decision and that the period of his secondment be taken into account for the purpose of establishing his classification. The Commission treated that letter as a complaint, which it rejected.

Substance

It follows from the second paragraph of Article 37 of the Staff Regulations that secondment in the interests of the service is governed by the rules set out in Article 38 whereas secondment at an officials's own request is governed by the rales set out in Article 39, those two provisions constituting together the regime for the administrative status of ‘secondment’, one of the administrative statuses provided for in Chapter 2 of Title III of the Staff Regulations. Article 38(f) of the Staff Regulations expressly provides that an official on secondment in the interests of the service is to retain his post, his right to advancement to a higher step and his eligibility for promotion (paragraphs 26 and 27).

On the other hand, the rules contained in Article 38 of the Staff Regulations and providing for entitlement to a differential payment and for the rights to advancement and to eligibility for promotion are not reproduced in Article 39. It must therefore be considered that the Community legislature did not intend to confer those rights on an official seconded at his own request. Were that not the case, then, as regards the provisions intended to define, in accordance with Article 37 of the Staff Regulations, the conditions under which an official on secondment continues to enjoy his rights and to be subject to the obligations resulting from his belonging to his parent institution, the Community legislature would not have failed to adopt, in Article 39, provisions on these matters identical to those contained in Article 38. It is therefore not permissible to infer from the silence of Article 39 the existence of a right which is expressly provided for only in the case of officials seconded in the interests of the service (paragraph 28).

The provisions of the Staff Regulations employ precise wording and there is no reason to extend their scope by analogy to situations to which they do not expressly refer, so that it is not possible to add to the rules exhaustively laid down in Article 39 a rule identical to that laid down in Article 38(f) (paragraph 29).

See: 48/70 Bernardi v Parliament [1971] ECR 175, paras 11 and 12; 123/84 Klein v Commission [1985] ECR 1907. para. 23

Such an interpretation of the differing mies established by Articles 38 and 39 of the Staff Regulations is justified by the consideration that, in the case of the former article, it may be decided to second an official against his own wishes, so that it may be thought that the Community legislature intended to guarantee to that official that the change in his posting would, as such, affect neither his remuneration nor his career prospects in his parent institution. In contrast, such a guarantee does not appear indispensable in the case of secondment at an official's own request, since, in that case, it is for the official concerned to weigh up the advantages of the secondment he is seeking notwithstanding a possible reduction in salary and the loss of eligibility for promotion acquired in his parent institution. These considerations regarding the presumed intention of the legislature cannot be refuted by the applicant's argument to the effect that the effect of a refusal to grant to an official on secondment at his own request entitlement to advancement to a higher step as prescribed in Article 44 of the Staff Regulations would be to confer on his parent institution the benefit, without any quid pro quo, of the professional experience acquired during his secondment (paragraph 30).

As regards entitlement to automatic advancement in step, it cannot, contrary to the applicant's argument, be accepted that there is a common regime characterized by automatic advancement in step, such as that laid down in Article 44 of the Staff Regulations, since, if such a common regime, applicable in the absence of individual provisions, did exist, there would have been no need for the Community legislature to grant expressly, in Article 38(f) and the second paragraph of 42, such a right to officials respectively seconded in the interests of the service and called up for military service and to refuse that right, just as explicitly, in the first subparagraph of Articles 40(3) and 41(3) to officials on leave on personal grounds or having non-active status (paragraph 31).

That conclusion is not invalidated by the apparent silence of Article 39 of the Staff Regulations. Such an inteipretation could, if at all, be justified only if secondment at the request of the official concerned constituted, in itself, one of the administrative statuses referred to in Article 35. Secondment at an official's own request does not, however, constitute a distinct administrative status under the Staff Regulations but, together with secondment in the interests of the service, forms a single administrative status, that of ‘secondment’, as defined in Article 37 and regulated in Articles 38 and 39, all this in Section 2 of Chapter 2 of Title III of the Staff Regulations. The provisions of Article 38 must be read in conjunction with those of Article 39 which also regulate the administrative status of secondment. It follows that the absence, in Article 39, of any express provision conferring the right at issue to officials on secondment at their own request must also be considered in conjunction with Article 38(f), which does confer the right at issue, but solely on officials seconded in the interests of the service (paragraph 32).

It is therefore not open to the applicant to claim an application by analogy by means of the argument that, in the absence of express provisions for the purpose, there exists a common regime conferring on officials having an administrative status under the Staff Regulations other than active employment the right to automatic advancement in step as laid down in Article 44 of the Staff Regulations (paragraph 33).

The applicant's plea, alleging misapplication of Article 39 of the Staff Regulations, must therefore be rejected (paragraph 34).

Operative part:

The application is dismissed.