Judgment of the Court (First Chamber) of 12 March 1975. - Berthold Küster v European Parliament. - Case 23-74.



European Court reports 1975 Page 00353

Greek special edition Page 00133

Portuguese special edition Page 00151



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - ACTION FOR ANNULMENT - NON-CONTENTIOUS COMPLAINT PROCEDURE - DIRECT APPLICATION TO THE COURT - APPLICATION FOR INTERIM MEASURES - LEGAL PROCEEDINGS NOT SUSPENDED - ADMISSIBILITY

( STAFF REGULATIONS, ARTICLE 91 ( 4 ))

2 . OFFICIALS - ACTION FOR ANNULMENT - COMPLAINT - SUBJECT MATTER - NECESSARY PARTICULARS

( STAFF REGULATIONS, ARTICLES 90 AND 91 )

3 . OFFICIALS - TEMPORARY POSTING - EXPRESS DECISION OF THE APPOINTING AUTHORITY - NEED FOR

( STAFF REGULATIONS, ARTICLE 7 ( 2 ))

4 . OFFICIALS - TEMPORARY POSTING - APPOINTMENT - DISCRETIONARY POWER OF THE ADMINISTRATION

( STAFF REGULATIONS, ARTICLE 7 ( 2 ))

5 . OFFICIALS - RECRUITMENT - INTERNAL COMPETITION - PROMOTION OR TRANSFER WITHIN THE INSTITUTION - POSSIBILITIES - PRIOR CONSIDERATION NOT COMPULSORY ( STAFF REGULATIONS, ARTICLE 29 )

Summary

1 . AN ACTION FOR ANNULMENT TO WHICH AN APPLICATION FOR INTERIM MEASURES IS JOINED IS ADMISSIBLE WITHOUT THE NEED TO AWAIT A RULING ON THE NON-CONTENTIOUS COMPLAINT PROCEDURE EVEN IF THE LEGAL PROCEEDINGS HAVE NOT BEEN SUSPENDED .

2 . WHILST THE REQUEST OR THE COMPLAINT UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS MUST SET OUT IN A MANNER SUFFICIENT TO ENABLE THE AUTHORITY INVOLVED TO DECIDE WITH FULL KNOWLEDGE OF THE FACTS, THE PURPOSE OF THE COMPLAINT AND ALL THE GROUNDS UNDERLYING IT, IT IS NOT NECESSARY THAT THEY SHOULD ALREADY AT THIS PRE-LITIGATION STAGE SET OUT THE GROUNDS OF POSSIBLE ILLEGALITY .

3 . THE APPLICATION OF ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS REQUIRES AN EXPRESS DECISION OF THE APPOINTING AUTHORITY BECAUSE IT GIVES RISE TO SPECIFIC BENEFITS .

4 . SINCE THE TEMPORARY POSTING OF AN OFFICIAL ARISES FROM AN ASSESSMENT OF THE INTERESTS OF THE SERVICE, THE PARTY INVOLVED CANNOT, BY REASON ONLY OF THE FACT THAT HE IS PERFORMING THE FUNCTIONS OF THE POST IN QUESTION, CLAIM A RIGHT TO OBTAIN THE BENEFIT OF THIS TEMPORARY POSTING .

5 . THE INTERESTS OF THE SERVICE AND THE IMPARTIALITY OF RECRUITMENT MAY RENDER DESIRABLE AN INTERNAL COMPETITION NOTWITHSTANDING THE POSSIBILITY OF FILLING A VACANT POST BY WAY OF PROMOTION OR TRANSFER WITHIN THE INSTITUTION .

Parties

IN CASE 23/74

BERTHOLD KUESTER, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, RESIDING AT 243 RUE DES ROMAINS, BERTRANGE ( LUXEMBOURG ) REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE DU GRANDE-DUCHE, 71 RUE DES GLACIS, LUXEMBOURG, IN WHOSE CHAMBERS HE HAS CHOSEN HIS ADDRESS FOR SERVICE, APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY-GENERAL, HANS ROBERT NORD, ASSISTED BY ALEX BONN, OF THE LUXEMBOURG BAR, HAVING CHOSEN ITS ADDRESS FOR SERVICE IN HIS CHAMBERS DEFENDANT,

Subject of the case

APPLICATION PURSUANT TO ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS FOR RECOGNITION OF THE STATUS OF OFFICIAL CALLED UPON TO OCCUPY TEMPORARILY A POST IN CATEGORY A3 AND FOR THE DIFFERENTIAL ALLOWANCE RELATING THERETO AND THE ANNULMENT OF THE APPOINTMENTS MADE BY THE EUROPEAN PARLIAMENT BY VIRTUE OF INTERNAL COMPETITION NO A/43 .

Grounds

1 THE ACTION IS FOR THE ANNULMENT OF THE DECISIONS BY WHICH THE APPOINTING AUTHORITY REFUSED TO GRANT TO THE APPLICANT AS FROM 1 SEPTEMBER 1973 A TEMPORARY POSTING UNDER ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS, FOR THE PAYMENT TO HIM AS FROM 1 DECEMBER 1973 OF THE DIFFERENTIAL ALLOWANCE UNDER THE SAID ARTICLE AND FINALLY FOR THE ANNULMENT OF THE APPOINTMENTS MADE BY PARLIAMENT CONSEQUENT UPON THE VACANCIES ADVERTISED UNDER NO 875, SUBSEQUENTLY REPLACED BY NOTICE OF VACANCY NO A/43 .

ON THE ADMISSIBILITY OF THE ACTION

2 THE DEFENDANT ALLEGES THAT THE ACTION IS, AS REGARDS THE TWO FIRST HEADS OF CLAIM, INADMISSIBLE ON THE GROUND THAT IT HAS NOT BEEN THE SUBJECT-MATTER OF THE PRIOR COMPLAINT REQUIRED BY ARTICLE 90 AND 91 OF THE STAFF REGULATIONS .

3 BY LETTER OF 26 NOVEMBER 1973 THE APPLICANT MADE A REQUEST TO THE APPOINTING AUTHORITY WITH A VIEW TO OBTAINING THE TEMPORARY POSTING AS HEAD OF DIVISION, SECRETARY OF A COMMITTEE OF THE EUROPEAN PARLIAMENT .

4 THIS APPLICATION WAS REJECTED BY DECISION OF 4 MARCH 1974, WHICH ALSO MEANT, IN AN IMPLIED BUT CERTAIN FASHION, A REFUSAL TO GRANT HIM THE DIFFERENTIAL ALLOWANCE UNDER ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS .

5 AS A RESULT OF THIS REFUSAL THE APPLICANT BROUGHT THE PRESENT ACTION, TO WHICH THERE WAS JOINED AN APPLICATION FOR INTERIM MEASURES WITH A VIEW TO OBTAINING A SUSPENSION OF ANY STEPS TO FILL THE ABOVEMENTIONED VACANT POST .

6 WHILST THE APPLICANT DID NOT, PRIOR TO THE ACTION, MAKE A FRESH COMPLAINT, HE HAD ON 22 FEBRUARY 1974 SUPPLEMENTED HIS PREVIOUS REQUEST BY A COMPLAINT AGAINST THE FAILURE TO TAKE STEPS TO GRANT HIM A TEMPORARY POSTING AS SECRETARY .

7 IN VIEW OF THIS FACT THE APPLICANT WAS CORRECT IN TREATING THE LETTER OF 4 MARCH 1974 AS REJECTING BOTH .

8 IN ANY EVENT, THE FACT THAT HE HAD JOINED AN APPLICATION FOR INTERIM MEASURES TO HIS ACTION FOR ANNULMENT RENDERED THE LATTER ADMISSIBLE UNDER THE PROVISIONS OF ARTICLE 91 ( 4 ) OF THE STAFF REGULATIONS WITHOUT THE NEED TO WAIT FOR A RULING ON THAT COMPLAINT .

9 WHILST IT IS TRUE THAT THE LEGAL PROCEEDINGS WERE NOT SUSPENDED AS IN THE CASE WHERE RECOURSE IS HAD TO THE SPECIAL PROCEDURE UNDER ARTICLE 91 ( 4 ), THIS FACT, SUBSEQUENT TO THE BRINGING OF THE CLAIM, CANNOT RENDER THE LATTER INADMISSIBLE .

10 ACCORDING TO THE DEFENDANT THE ACTION IS ALSO INADMISSIBLE AS REGARDS ITS THIRD HEAD BECAUSE, IN HIS COMPLAINT OF 7 MARCH 1974 AGAINST THE APPOINTMENTS CRITICIZED, THE APPLICANT DID NOT PUT FORWARD THE GROUNDS OF ANNULMENT ON WHICH HE SUBSEQUENTLY BASED HIS ACTION .

11 WHILST THE REQUEST OR THE COMPLAINT UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS MUST SET OUT, IN A MANNER SUFFICIENT TO ENABLE THE AUTHORITY INVOLVED TO DECIDE WITH FULL KNOWLEDGE OF THE FACTS, THE SUBJECT-MATTER OF THE COMPLAINT AND THE GROUNDS UNDERLYING IT, IT IS NOT NECESSARY THAT THEY SHOULD ALREADY AT THIS PRE-LITIGATION STAGE SET OUT THE GROUNDS OF POSSIBLE ILLEGALITY .

12 THE COMPLAINT OF 7 MARCH 1974, WHICH ALSO REFERS TO PRIOR CORRESPONDENCE, COMPLIED WITH THESE CONDITIONS .

13 ACCORDINGLY THE ACTION IS ADMISSIBLE .

ON THE TEMPORARY POSTING

14 THE APPLICANT ARGUES THAT THE GRANT OF A TEMPORARY POSTING WITHIN THE MEANING OF ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS OCCURS AUTOMATICALLY IN A CASE WHERE AN OFFICIAL, CONSEQUENT ON THE DEPARTURE OF HIS SUPERIOR WHO IS PROMOTED TO ANOTHER POST, IS INSTRUCTED TO REPLACE HIM DE FACTO .

15 UNDER THE PROVISIONS OF ARTICLE 7 ( 2 ) AN OFFICIAL 'MAY BE CALLED UPON TO OCCUPY TEMPORARILY A POST IN A CAREER BRACKET IN HIS CATEGORY WHICH IS HIGHER THAN HIS SUBSTANTIVE CAREER BRACKET '.

16 THE APPLICATION OF THIS PROVISION REQUIRES AN EXPRESS DECISION ON THE PART OF THE APPOINTING AUTHORITY, SINCE IT INVOLVES IN RELATION TO THE OFFICIAL AN ENTITLEMENT TO SPECIFIC BENEFITS FROM THE ADMINISTRATION .

17 SINCE THE DECISION TO CALL UPON AN OFFICIAL TO OCCUPY TEMPORARILY A POST ARISES FROM AN ASSESSMENT OF THE INTERESTS OF THE SERVICE, THE PARTY INVOLVED CANNOT, BY REASON ONLY OF THE FACT THAT HE IS PERFORMING THE FUNCTIONS OF THE POST IN QUESTION, CLAIM A RIGHT TO OBTAIN THE BENEFIT OF THIS TEMPORARY POSTING .

18 ACCORDINGLY, THE APPLICANT'S ARGUMENT IS NOT WELL-FOUNDED .

19 CONSEQUENTLY, THE APPLICANT'S ARGUMENT THAT HE IS AS FROM 1 DECEMBER 1973 ENTITLED TO THE DIFFERENTIAL ALLOWANCE UNDER THE SAME ARTICLE 7 ( 2 ) MUST ALSO BE REJECTED .

ON THE APPOINTMENTS CRITICIZED

20 IN CONTESTING THE LEGALITY OF INTERNAL COMPETITION A/43 THE APPLICANT SUBMITS IN THE FIRST PLACE THAT IT COULD NOT HAVE BEEN INITIATED WITHOUT PROOF THAT THE FORMALITIES PROVIDED FOR UNDER ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS HAD BEEN CARRIED OUT .

21 IT IS CLAIMED THAT UNDER THIS ARTICLE THE APPOINTING AUTHORITY CAN ONLY PROCEED TO ORGANIZE A COMPETITION INTERNAL TO THE INSTITUTION, SUCH AS IS REFERRED TO UNDER ( B ) OF THE PARAGRAPH IN QUESTION, IF IT SEEMS IMPOSSIBLE TO FILL THE POST BY PROMOTION OR TRANSFER WITHIN THE INSTITUTION .

22 FROM HIS BI-ANNUAL REPORTS IT APPEARS THAT THE APPLICANT IS CAPABLE OF FILLING THE VACANT POST, AND SINCE HE HAD SUBMITTED HIS CANDIDATURE IN RESPECT THEREOF, SUCH PROOF COULD NOT BE ADDUCED, SO THAT THE DECISION TO ORGANIZE AN INTERNAL COMPETITION IS ILLEGAL .

23 THIS ARGUMENT CANNOT BE ACCEPTED .

24 IN FACT, THE PRESENCE OF SEVERAL PERSONS HAVING THE QUALIFICATIONS FOR PROMOTION OR TRANSFER WITHIN THE INSTITUTION MAY LEAD THE APPOINTING AUTHORITY TO CONCLUDE THAT THE INTERESTS OF THE SERVICE AND THE IMPARTIALITY OF RECRUITMENT RENDER AN INTERNAL COMPETITION DESIRABLE .

25 THE APPLICANT'S ARGUMENT AMOUNTS TO GRANTING THE DEPUTY OF AN OFFICIAL WHOSE POST HAS BECOME VACANT THE RIGHT TO SUCCEED HIM AS SOON AS IT APPEARS FROM HIS PERSONAL FILE THAT HE HAS THE NECESSARY QUALIFICATIONS TO FILL THAT POST .

26 BOTH THE INTERESTS OF THE SERVICE AND THE RIGHTS OF OTHER OFFICIALS MILITATE AGAINST ACCEPTANCE OF SUCH A CLAIM .

27 ACCORDINGLY THIS GROUND MUST BE REJECTED .

28 IN THE SECOND PLACE THE APPLICANT CRITICIZES THE ACTIVITIES OF THE SELECTION BOARD IN INTERNAL COMPETITION A/43 IN RELATION TO THE CRITERIA ADOPTED FOR THE LIST OF SUITABLE CANDIDATES AND THE MARKS AWARDED TO THE VARIOUS CANDIDATES .

29 WHILST BY REASON OF THE NECESSARILY RELATIVE CHARACTER OF THE DATA ON WHICH IT MUST RELY THE PROCEDURE OF A COMPETITION BASED ON QUALIFICATIONS MUST NECESSARILY INVOLVE DISADVANTAGES FOR CERTAIN PARTICIPANTS, ARTICLE 29 NEVERTHELESS EXPRESSLY PROVIDES FOR IT .

30 ACCORDINGLY THE APPLICANT'S ARGUMENTS, TO THE EXTENT THAT THEY INVOLVE A CRITICISM OF IMPERFECTIONS INHERENT IN THIS PROCEDURE, CANNOT BE UPHELD .

31 ON THE CONTRARY, IT MUST BE STATED THAT IN THE PRESENT CASE THE CRITERIA WHICH THE SELECTION BOARD ADOPTED FOR THE COMPETITION APPEAR TO HAVE BEEN CHOSEN IN A SPIRIT OF IMPARTIALITY AND TO HAVE BEEN INSPIRED BY A DESIRE AS FAR AS POSSIBLE TO TAKE ACCOUNT OF THE DIFFERENT FACTORS WHICH IN THE PRESENT CASE OUGHT TO BE TAKEN INTO CONSIDERATION .

32 IN ANY CASE IT DOES NOT APPEAR THAT BY REASON OF THE CHOICE OF CRITERIA THE APPLICANT WAS ARBITRARILY PLACED AT A DISADVANTAGE SO THAT THE ADOPTION OF THESE CRITERIA AMOUNTED IN HIS CASE TO A MISUSE OF POWERS OR A VOILATION OF HIS RIGHTS UNDER THE STAFF REGULATIONS .

33 AS REGARDS THE ATTRIBUTION OF POINTS UNDER DIFFERENT CRITERIA, THE APPLICANT RIGHTLY CRITICIZES THE DECISION OF THE SELECTION BOARD CONCERNED WITH THIS COMPETITION TO GRANT UNDER THE HEADING 'GENERAL REPORTS AND PROFESSIONAL ASSESSMENTS WITHIN THE COMMUNITY INSTITUTIONS', 7 OUT OF 10 POINTS TO TWO CANDIDATES IN RESPECT OF WHOM NO PERIODIC REPORTS EXISTED .

34 THIS REFERS TO TWO CANDIDATES WHO HAD FOR SEVERAL YEARS BEEN TEMPORARY OFFICIALS OF THE SECRETARIATS OF POLITICAL GROUPS, WHO BY REASON OF THE FACT THAT THEY WERE TEMPORARY SERVANTS HAD NOT BEEN THE SUBJECT OF PERIODIC REPORTS .

35 WHILST THERE IS NOTHING TO PREVENT THE ADMISSION OF TEMPORARY STAFF TO INTERNAL COMPETITIONS IT IS NOT CORRECT TO ATTRIBUTE TO THEM FICTITIOUS MARKS WHEN BY REASON OF THEIR LEGAL POSITION THEY DO NOT COMPLY WITH THE CRITERIA APPLIED .

36 THIS IRREGULARITY NEVERTHELESS CAUSED NO DISADVANTAGE TO THE APPLICANT SINCE THE TWO PERSONS INVOLVED WERE NOT APPOINTED TO THE VACANT POSTS .

37 ACCORDINGLY, THE CLAIM FOR ANNULMENT OF THE APPOINTMENTS MUST BE DISMISSED AS UNFOUNDED .

Decision on costs

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

39 HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES, THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY EMPLOYEES OF THE COMMUNITY ARE TO BE BORNE BY SUCH INSTITUTIONS .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .