Judgment of the Court (Second Chamber) of 13 December 1979. - Ralph Loebisch v Council of the European Communities. - Case 14/79.



European Court reports 1979 Page 03679

Greek special edition Page 00743



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - POST - GRADE - CRITERIA FOR ASSIGNMENT - NUMBER AND STATUS OF SUBORDINATES - EXCLUSION

( STAFF REGULATIONS OF OFFICIALS , ART . 5 )

2 . OFFICIALS - PERIODIC REPORTS - PROCEDURE - REPORTS BY A SENIOR OFFICIAL IN THE SAME GRADE - PERMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS , ART . 43 )

3 . OFFICIALS - INTERNAL ORGANIZATION OF AN INSTITUTION - DISCRETION OF THE ADMINISTRATION - CLASSIFICATION OF COMPARABLE POSTS DIFFERENT IN EACH INSTITUTION - PRINCIPLE OF EQUITY - BREACH - NONE

Summary

1 . IT IS IMPOSSIBLE TO FIND IN THE STAFF REGULATIONS ANYTHING TO SUPPORT THE ARGUMENT THAT THE GRADE TO WHICH AN OFFICIAL IS APPOINTED DEPENDS UPON THE NUMBER AND STATUS OF HIS SUBORDINATES .

2 . THERE IS NO PROVISION OF THE STAFF REGULATIONS PREVENTING THE DUTY OF MAKING PERIODIC REPORTS ON OFFICIALS OF A GIVEN GRADE FROM BEING ENTRUSTED TO A SENIOR EXPERIENCED OFFICIAL HAVING THE SAME GRADE .

3 . SINCE EACH INSTITUTION CONTROLS ITS OWN DETAILED LIST OF POSTS AND HAS A WIDE DISCRETION AS REGARDS ITS INTERNAL ORGANIZATION , THE FACT THAT ONE INSTITUTION CLASSIFIES A POST IN A LOWER GRADE THAN THAT IN WHICH A COMPARABLE POST IS CLASSIFIED IN ANOTHER INSTITUTION DOES NOT CONSTITUTE A BREACH OF THE PRINCIPLE OF EQUITY .

Parties

IN CASE 14/79

RALPH LOEBISCH , AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , RESIDING AT 107 AVENUE DES AUBEPINES , 1180 BRUSSELS , REPRESENTED AND ASSISTED BY EDMOND LEBRUN , OF THE BRUSSELS BAR , OF 68 RUE CAMILLE LEMONNIER , 1060 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , ADVOCATE , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JOHN CARBERY , ADVISER IN THE LEGAL DEPARTMENT OF THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 2 PLACE DE METZ ,

DEFENDANT ,

Subject of the case

APPLICATION FOR A FINDING THAT THE APPLICANT OCCUPIES A POST OF DIRECTOR IN GRADE A 2 AND IS THEREFORE ENTITLED TO BE GRADED IN GRADE A 2 WITH EFFECT FROM 1 APRIL 1974 OR AT LEAST FROM 4 MAY 1978 , AND FOR THE ANNULMENT OF THE IMPLIED DECISIONS REJECTING AND DISMISSING THE REQUEST AND COMPLAINT MADE FOR THIS PURPOSE ,

Grounds

1 BY AN APPLICATION WHICH REACHED THE REGISTRY ON 25 JANUARY 1979 RALPH LOEBISCH , HEAD OF THE TRANSLATION DEPARTMENT OF THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , INSTITUTED PROCEEDINGS CLAIMING THAT HE SHOULD BE APPOINTED TO GRADE A 2 AND ALSO ASKING FOR THE ANNULMENT OF THE IMPLIED DECISIONS REJECTING HIS REQUEST AND COMPLAINT WHICH WERE MADE FOR THAT PURPOSE .

2 THE APPLICANT ENTERED THE SERVICE OF THE COUNCIL OF MINISTERS AS A TRANSLATOR ON 1 FEBRUARY 1958 . ON 25 MAY 1973 HE WAS PROMOTED TO GRADE L/A 3 AND APPOINTED ' ' HEAD OF THE TRANSLATION DIVISION ' ' . THE TRANSLATION DEPARTMENT OF THE COUNCIL CONSISTS OF SIX SEPARATE DIVISIONS , ONE FOR EACH OF THE SIX OFFICIAL LANGUAGES OF THE COMMUNITIES , AND EACH UNDER THE AUTHORITY OF A HEAD OF DIVISION . THE SIX HEADS OF DIVISION ARE UNDER THE AUTHORITY OF THE ' ' HEAD OF THE TRANSLATION DEPARTMENT ' ' WHO HIMSELF IS UNDER THE AUTHORITY OF THE DIRECTOR OF DIRECTORATE II ' ' OPERATIONS - TRANSLATION DEPARTMENT ' ' , THE LATTER BEING RESPONSIBLE TO DIRECTORATE-GENERAL A OF THE GENERAL SECRETARIAT .

MR NOACK , WHO HAD BEEN PROMOTED FROM GRADE L/A 3 TO GRADE A 2 AD PERSONAM , FILLED THE POST OF HEAD OF THE TRANSLATION DEPARTMENT UNTIL HE RETIRED ON 13 JANUARY 1974 . THE APPLICANT RECEIVED THE FOLLOWING NOTE FROM THE GENERAL SECRETARIAT OF THE COUNCIL ON 30 APRIL 1974 :

' ' NOTE FOR THE ATTENTION OF MR LOEBISCH . I BEG TO INFORM YOU THAT AS FROM 1 APRIL 1974 YOU ARE PLACED AT THE DISPOSAL OF DIRECTORATE-GENERAL A , DIRECTORATE II : OPERATIONS - TRANSLATION DEPARTMENT , AS HEAD OF THE TRANSLATION DEPARTMENT ' ' .

THE APPLICANT , RELYING ON THE ARGUMENT THAT HIS PREDECESSOR WAS APPOINTED TO GRADE A 2 , ON TWO OCCASIONS HAS APPLIED TO THE APPOINTING AUTHORITY TO BE GRADED IN GRADE A 2 , WITH EFFECT EITHER FROM 1 APRIL 1974 OR AT LEAST FROM 4 MAY 1978 , THE DATE WHEN THE AMENDED STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES ENTERED INTO FORCE . HE HAS BROUGHT PROCEEDINGS AGAINST THE IMPLIED DECISION OF THE APPOINTING AUTHORITY REJECTING HIS SUCCESSIVE REQUESTS AND HAS ASKED THE COURT , EXERCISING ITS UNLIMITED JURISDICTION , TO DECLARE THAT HIS POST IS THAT OF A DIRECTOR AND TO ORDER THE APPOINTING AUTHORITY TO GRADE HIM IN THE GRADE WHICH CORRESPONDS TO THE POST SO DEFINED , THAT IS TO SAY IN GRADE A 2 .

3 SINCE THE PARTIES DISPUTE BOTH THE FACTS AND THE LAW IT IS ADVISABLE TO CONSIDER IN TURN THE DECISIVE FACTORS ON THE COURT ' S FILE , THAT IS TO SAY THE IMPLICATION OF THE NOTE OF 30 APRIL 1974 , THE NATURE OF THE APPLICANT ' S PRESENT DUTIES AND THEIR PLACE IN THE COUNCIL ' S DETAILED LIST OF POSTS , THE ALLEGED DISCRIMINATION AGAINST THE APPLICANT COMPARED WITH HIS PREDECESSOR , AND FINALLY WHETHER HE MAY BE ENTITLED TO A PARTICULAR GRADING OR PROMOTION .

4 BY THE NOTE OF 30 APRIL 1974 THE APPLICANT WAS ' ' PLACED AT THE DISPOSAL ' ' OF A DIRECTORATE ' ' AS HEAD OF THE TRANSLATION DEPARTMENT ' ' . WHATEVER THE TITLE OR TERMS OF A DOCUMENT MAY BE AND WHATEVER DESCRIPTION MAY HAVE BEEN APPLIED TO IT , ITS SCOPE SHOULD BE DEFINED WITH REFERENCE TO ITS REAL NATURE . THE NOTE OF 30 APRIL CONSTITUTES A TRANSFER OF THE APPLICANT IN THE INTERESTS OF THE SERVICE WHICH HAS NO EFFECT ON HIS GRADE ; THAT DOCUMENT CANNOT CONSTITUTE AN ACTUAL APPOINTMENT SINCE THERE IS NO SUCH CAREER BRACKET AS HEAD OF TRANSLATION DEPARTMENT IN THE LIST OF CAREER BRACKETS APPLICABLE TO TRANSLATORS .

5 THE APPLICANT HAS REMAINED AN OFFICIAL IN GRADE L/A 3 , SINCE THE POSTS OF HEAD OF A TRANSLATION DIVISION AND HEAD OF LANGUAGES DEPARTMENT ARE BOTH ASSIGNED TO GRADE L/A 3 IN THE LIST OF DETAILED POSTS OF THE GENERAL SECRETARIAT OF THE COUNCIL .

6 IT IS NOW NECESSARY TO CONSIDER WHETHER THE DUTIES OF HEAD OF THE TRANSLATION DEPARTMENT OF THE SAID GENERAL SECRETARIAT CORRESPOND OR NOT TO THE TASKS WHICH AN OFFICIAL IN GRADE L/A 3 MAY IN THE ORDINARY COURSE BE REQUIRED TO PERFORM .

7 IN THIS CONNEXION THE APPLICANT REFERS TO THE FACT THAT THE TRANSLATION DEPARTMENT OF THE COUNCIL IS A LARGE ADMINISTRATIVE UNIT WHICH CONTAINS ABOUT 250 GRADUATES . THE ANSWER TO THIS ARGUMENT MUST BE THAT IT IS IMPOSSIBLE TO FIND IN THE STAFF REGULATIONS ANYTHING TO SUPPORT THE ARGUMENT THAT THE GRADE TO WHICH AN OFFICIAL IS APPOINTED DEPENDS UPON THE NUMBER AND STATUS OF HIS SUBORDINATES .

8 THE APPLICANT ALSO RELIES ON THE FACT THAT HE IS THE IMMEDIATE SUPERIOR OF THE OTHER HEADS OF TRANSLATION DIVISIONS . THIS ARGUMENT SCARCELY APPLIES TO THE ADMINISTRATIVE CO-ORDINATION OF THE WORK OF THE DEPARTMENT ; THIS DUTY IS NOT IN FACT OF SUCH A KIND AS AUTOMATICALLY TO ELIMINATE THE SUBORDINATE STATUS OF THE OFFICIALS WHOSE ACTIVITIES ARE SUBJECT TO SUCH CO-ORDINATION , WHICH IT IS PERFECTLY NORMAL TO ENTRUST TO AN OFFICIAL OF THE SAME GRADE .

9 THE APPLICANT ALSO RELIES ON THE SUPERVISORY POWERS WHICH HE EXERCISES OVER HIS COLLEAGUES BY MAKING PERIODIC REPORTS ON THEM . ALTHOUGH IT IS TRUE THAT THE REPORTING OFFICER IS USUALLY IN A HIGHER GRADE THAN THE OFFICIALS WHOSE ABILITY , EFFICIENCY AND CONDUCT IN THE SERVICE HE HAS TO ASSESS , THERE IS NO PROVISION OF THE STAFF REGULATIONS AGAINST SUCH A PRACTICE ; AND THERE IS NO LOGICAL REASON WHY IT SHOULD NOT BE FEASIBLE TO ENTRUST A SENIOR EXPERIENCED OFFICIAL WITH THE DUTY OF MAKING PERIODIC REPORTS ON OFFICIALS HAVING THE SAME GRADE AS HIS OWN . IT IS THEREFORE UNNECESSARY FOR A DIRECTOR TO BE THE FIRST REPORTING OFFICER FOR HEADS OF TRANSLATION DIVISIONS .

10 THE APPLICANT HAS DRAWN ATTENTION TO THE FACT THAT THE POST AT ISSUE IN THIS CASE WAS PREVIOUSLY FILLED BY AN OFFICIAL IN GRADE A 2 , WHICH CORRESPONDS TO THE DUTIES OF A DIRECTOR . IT IS NECESSARY TO STRESS IN THIS CONNEXION THAT MR NOACK , THE FORMER HEAD OF THE TRANSLATION DEPARTMENT , HAD BEEN APPOINTED TO GRADE A 2 AD PERSONAM ; IT MAY BE INFERRED FROM THIS A CONTRARIO THAT THE POST ITSELF IS NOT IN FACT CLASSIFIED AS GRADE A 2 POST , SINCE THE APPLICANT ' S PREDECESSOR WAS ONLY APPOINTED TO THIS GRADE OWING TO A DISCRETIONARY PROMOTION HAVING REGARD TO HIS PERSONAL MERITS AND PROBABLY TO THE FACT THAT HE WAS AT THE END OF HIS CAREER .

11 FINALLY THE APPLICANT REGARDS THE COUNCIL ' S BEHAVIOUR TOWARDS HIM AS A BREACH OF THE PRINCIPLE OF EQUITY ; HE PERFORMS DUTIES AS A DIRECTOR WHICH JUSTIFY AN APPOINTMENT TO GRADE A 2 IN THE OTHER INSTITUTIONS . THE ANSWER TO THIS ARGUMENT MUST BE THAT EACH INSTITUTION CONTROLS ITS OWN DETAILED LIST OF POSTS AND HAS A WIDE DISCRETION AS REGARDS ITS INTERNAL ORGANIZATION . IT MAY BE NOTED THAT THE COUNCIL THOUGHT IT ADVISABLE TO PLACE A DIRECTOR - WHO MOREOVER AT THE SAME TIME DIRECTS ANOTHER ADMINISTRATIVE UNIT - AT THE HEAD OF THE APPLICANT ' S DEPARTMENT AND THAT THE DEPARTMENT HAS THEREFORE NOT BEEN DEPRIVED OF DIRECTION .

12 IT IS THUS APPARENT THAT AS A MATER OF FACT THERE IS NO POSITION UNDER THE STAFF REGULATIONS TO WHICH THE APPLICANT COULD CLAIM TO BE PROMOTED . EVEN IF SUCH A POSITION WERE CREATED , FOLLOWING AN ALTERATION OF THE DETAILED LIST OF POSTS UNDER THE COUNCIL , THE APPOINTING AUTHORITY WOULD STILL BE FREE TO ASSESS THE APPLICANT ' S MERITS WITH A VIEW TO HIS POSSIBLE PROMOTION .

13 THE APPLICANT ' S CLAIMS ARE THEREFORE NOT WELL FOUNDED AND MUST CONSEQUENTLY BE DISMISSED .

Decision on costs

COSTS

14 PURSUANT TO ARTICLES 69 AND 70 OF THE RULES OF PROCEDURE THE PARTIES MUST BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY

1 . DISMISSES THE APPLICATION AS UNFOUNDED ;

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .