CELEX: 61981CC0191
Language: en
Date: 1982-10-07 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 7 October 1982. # Onno Plug v Commission of the European Communities. # Temporary staff - Grading and duties. # Case 191/81.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 7 OCTOBER 1982 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The applicant in the proceedings to which this opinion relates was employed by the European Association for Cooperation [hereinafter referred to as “the Association”] between 1966 and 1977. During that period he was, amongst other assignments, placed at the disposal of the Commission of the European Communities which he represented in Benin in 1975 and in Zambia in 1976.
      At the beginning of 1977, the applicant terminated his contraa of employment for an indefinite period with the Association in order to sign a new contraon 9 June 1977 which was offered to him by the Commission of the European Communities. Under that contract, the applicant was appointed as Head of Division in Grade A3, Step 4, in the Directorate General for Development (Division VIII-B-2) for a period of one year with retroattive effect from 31 May 1977.
      Upon the expiry of that contract and following a short extension of its validity, a new contract was concluded, for a fixed period, on 15 November 1978, with retroactive effect from 23 September 1978, which was to expire on 30 June 1980 and provided for the applicant's appointment as a member of the Commission's Permanent Delegation to the international organizations in Geneva as Head of Division in Grade A 3, Step 4.
      When that contract expired, the Commission offered the applicant a new contract on 22 August 1980 with retroactive effect from 1 July 1980. Unlike theprevious contract, the new contract provided for the assignment of the applicant for an indefinite period to the Commission's Delegation in Geneva (Directorate General for Development) as principal administrator in Grade A 4, Step 4.
      The applicant signed and returned the contract on 27 September 1980 together with a note containing an express reservation regarding the decision to classify him in a lower grade. He based his reservation on inter alia the fact that under his previous contracts for a fixed period he was classified in Grade A 3 and his duties in Geneva had remained unchanged. In the circumstances, he had felt compelled to sign the contract even though it was neither compatible with the uninterrupted period of 15 years which he had spent in the service of the Commission nor in keeping with the Commission's promise to establish him which was made when the first contract was concluded.
      Since that reservation met with no response from the Commission, on 22 November 1980 the applicant submitted an official complaint, within the meaning of Article 90 (2) of the Staff Regulations, claiming that his classification in Grade A 4 in the contraa of 22 August 1980 and the description of his duties therein should be annulled and that he should be classified as an “adviser” in Grade A 3. That complaint too remained unanswered.
      From a note sent on 9 January 1981 by Mr Meyer, Direaor General for Development, to the Head of the Commission's Delegation to the United Nations, the applicant learnt that another official from DGVIII, Mr Grumbach, was to be seconded to Geneva as from 1 February 1981. The duties- of that official were described in detail in that note. At the same time, it was decided that the applicant was to cooperate in carrying out those duties under the direct authority of Mr Grumbach.
      On Mr Grumbach's arrival in Geneva, moreover, the applicant's accreditation to the international organizations in that city was withdrawn on the ground that such accreditation was reserved for the official from Directorate General VIII.
      On 20 January 1981, the applicant submitted another official complaint, within the meaning of Article 90 (2) of the Staff Regulations, in which he requested reinstatement of his accreditation to the international organizations and a detailed description of his duties.
      By a note of 18 March 1981, the Head of the Commission's Permanent Delegation, Mr Tran Van Thinh, confirmed the applicant's new duties, inasmuch as he made it clear that the applicant was to assist Mr Grumbach, under the guidance and supervision of the latter, in drafting various documents concerning international organizations.
      Finally, by decision of 13 July 1981, the Commission expressly rejected the applicant's official complaints.
      In the meantime, on 22 June 1981 the applicant had instituted proceedings before the Court of Justice in which he claimed that the Court should primarily:
      
               (a)
            
            
               Annul the decision in the contract of 22 August 1980 classifying the applicant in Grade A4 and describing his duties, and declare that he should be classified in the contract as an adviser in Grade A3, Step 5, and order the defendant to adjust the applicant's financial entitlements accordingly with effect from 1 July 1980;
            
         
               (b)
            
            
               Annul the decision withdrawing the applicant's accreditation to the international organizations in Geneva and the decision notified to him on 9 January 1981 relieving him of his former duties, and declare that his credentials must be returned to him and that he must be reinstated in his former post;
            
         
               (c)
            
            
               Grant the applicant compensation for nonmaterial damage with interest thereon at the rate of 8% per annum from 22 November 1980 until the date of payment; and
            
         
               (d)
            
            
               Annul the implied decision rejecting his complaints of 22 November 1980 and 20 January 1981.
            
         Alternatively, the applicant claims compensation for material and nonmaterial damage with interest thereon at the rate of 8% per annum from 22 November 1980 until the date of payment.
      Finally, the applicant claims that the Court should in any event order the defendant to pay the costs.
      The Commission, on the other hand, contends in substance that the Court should dismiss the application as unfounded and make an order as to costs in accordance with its Rules of Procedure.
      My opinion on those claims is as follows.
      I — Admissibility of the application
      The Commission regards the applicant's claim for annulment of the implied rejection of his complaints as. inadmissible since the Court of Justice made it clear, in particular in its judgment in Kühner, (
            2
         ) that every decision purely and simply rejecting a complaint only confirms the act or failure to act to which the complainant takes exception and is not a decision which may be challenged.
      To counter that objection of inadmissibility it is sufficient to refer to Article 90 (2) of the Staff Regulations which provides that the failure to reply to a complaint within the period prescribed therein is deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91 of the Staff Regulations. Thus, in Joined Cases 33 and 75/79 the Court of Justice treated the failure to reply to the complaint as an implied decision rejecting it, against which the first action was admissible. The Court went on to explain, in regard to the second action alone, that every decision purely and simply rejecting a complaint does not constitute by itself a measure against which a separate action may be brought. Consequently, the Court held that the second action had no purpose and was therefore inadmissible. Since those circumstances do not arise in the present case, there is no reason to declare the application inadmissible with regard to the claim in question.
      II — Substance
      1. First claim
      In his first claim, the applicant seeks the amendment of the contested contract of 22 August 1980 as regards both his grading and the description of his duties with retroactive effect from the commencement of the contract, which he wishes to remain unchanged in other respects. That claim is based essentially on two submissions, on which my opinion is as follows:
      (a) First submission
      In the applicant's view, the decision to classify him in Grade A 4 and to describe him as a principal administrator constitutes a breach of the principle that an official's duties must correspond to his grading and post, embodied in Articles 5 and 7 of the Staff Regulations which, as a result of Articles 9 and 10 of the Conditions of Employment of Other Servants of the European Communities [hereinafter referred to as “the Conditions of Employment”], must also be observed in relation to the employment of temporary servants. In that connection, the applicant maintains that in substance his duties and his powers remained unchanged after 30 June 1980, that is to say following the expiry of the second contract for a fixed period concluded on 15 November 1978. However, as inter alia the previous contract shows, and as is also apparent from the description of duties and powers attaching to each basic post (see Staff Courier No 272 of 4 September 1973), adopted by the defendant pursuant to Article 5 of the Staff Regulations, those duties correspond to Grade A 3 and to the description “adviser” or “head of division”. Any other grading or description constitutes a legal or factual error and is therefore unlawful. That cannot be altered, in the applicant's view, by the notes of 9 January 1981 from the Director General for Development and of 18 March 1981 from the Head of the Permanent Delegation, which were not sent until after the conclusion, of the contract and, the applicant believes, were merely intended to rectify the error retroactively.
      The inference that when the contract was concluded the intention was that he should continue to perform the same duties as before may be drawn, according to the applicant, from the existence of circumstantial evidence which has not been refuted by the Commission. In support of that argument, the applicant relies in the first place on the fact that even after the conclusion of the contract, until at least January 1981, that is to say for a period of four months or more, he carried out the same duties as before, without being notified of any changes thereto. Moreover, in the note of 27 September 1980 which he wrote when he entered into the contract and in his subsequent official complaint of 22 November 1980, he made it quite clear, without being contradicted by the Commission, that he was proceeding on the assumption that he would continue to be employed in the same post as before. Further reasons for that assumption by the applicant were the payment of his salary under the same budget heading as that applicable to his previous contract and the Commission's inability to produce any documentary evidence that at the time when the contract was concluded its intention had been to assign him to another post.
      However, what militates against the applicant's contention that the former employment relationship was tacitly renewed — the principal weakness of which lies in the fact that it is based on circumstantive evidence — is in my opinion primarily the fact that the contract of 22 August 1980 differs essentially in content from the previous contracts, inasmuch as it expressly and unequivocally provides for the employment of the applicant thenceforth for an indefinite period as principal administrator in Grade A 4. From that fact, it is apparent that the Commission's intention was not merely to renew the previous contractual relationship. Moreover, since he was aware of the description of the duties and powers attaching to each basic post adopted by the Commission, the applicant could hardly proceed on the assumption that he would continue to be entrusted with the same duties as before for an unlimited period. If he had entertained any doubts whatsoever in that regard, he could have dispelled them by making further inquiries when he entered into the contract.
      Nor is any basis for the applicant's inference that he would continue to perform the same duties as before provided by the Commission's failure promptly to correct the assumption to that effect contained in his note of 27 September 1980 and in his official complaint of 22 November 1980. Even though such conduct on the Commission's part may run counter to proper administrative practice, nonetheless it does not cast doubts on the grading of the applicant and description of his duties in the contract which are both unequivocal. Moreover, the opposite view cannot, contrary to the applicant's opinion, be deduced from the conduct of the Commission which, perpetuating an undesirable practice, did not expressly reject the applicant's complaint until after the prescribed period had elapsed, since the Staff Regulations clearly provide that failure to reply to a complaint within the four month period is to be deemed to constitute a rejection thereof.
      Finally, it does not necessarily follow from the absence of any internal documents, however surprising that may be, that the Commission did not envisage any redeployment of staff at its Geneva office at the time when the contract was concluded. As the Commission has assured the Court, such decisions may also be taken orally. In any event the new version of the contract and the applicant's transfer to a post classified for budget purposes as A 4/5 ACP/temporary point to the fact that such a decision was taken.
      When the question of compliance with the principle that duties must correspond to grading is considered, it is necessary, as the Commission righdy emphasizes, simply to determine whether the duties assigned to the applicant under the new contract were really those of a principal administrator classified in grade A 4. In that regard, it is my view beyond dispute that the duties performed by the applicant until Mr Grumbach's arrival on 1 February 1981 were broadly comparable with his previous duties ; then — certainly no later — as the note of 9 January 1981 from the Director General for Development and that of 18 March 1981 from the Head of the Permanent Delegation in Geneva reveal, a change occurred in the nature and scope of his duties. In the Commission's opinion, a temporary assignment of that kind involving the performance of duties attaching to a higher career bracket must however be accepted by the official concerned.
      That is correct, from a legal point of view, inasmuch as under Article 7 (2) of the Staff Regulations an official who is called upon to occupy for up to a year a post in a career bracket in his category which is higher than his own career bracket is not entitled to object to such a temporary assignment; nor, as the Court of Justice has repeatedly affirmed (see inter alia its judgments in Van Reenen (
            3
         ) and Tontodonati, (
            4
         ) does it confer on the official the right to be re-graded.
      On the other hand, account should have been taken of the fact that, as the Court held in its judgments in Boursin (
            5
         ) and Lampe, (
            6
         ) a decision “to call upon” an official to occupy a post in a higher career bracket requires the express agreement of the appointing authority since the application of the article in question confers on the official entitlement to a differential allowance from the fourth month. Last but not least, reference must also be made in that connection to the third paragraph of Article 10 of the Conditions of Employment, according to which an agreement supplementary to bis contract of service must be concluded where a temporary servant is assigned to a post carrying a higher grade than that in which he was engaged.
      However, since in the final analysis there has been no breach of the principle that the post must correspond to the salary bracket, the alternative argument remains to be considered, namely that the Commission could not have offered the applicant duties which were less important than those which his former position entailed and a post in a lower grade without infringing his rights.
      (b) Second submission
      The applicant maintains that his downgrading and the description of his duties constitute a breach of the duty of assistance embodied in Article 24 of the Staff Regulations and of several other general principles of law, in particular the duty to provide for the welfare of officials.
      The Commission however takes the view that there is no basis for the rights claimed by the applicant either in the Conditions of Employment or in the contract of 22 August 1980 which was offered to the applicant without any obligation and was signed by him of his own free will.
      As regards this submission, it must be conceded to the Commission that, as the Court of Justice has repeatedly held, most recently in Munk, (
            7
         ) Article 24 of the Staff Regulations cannot apply since it is concerned with the defence of officials by the institution against the acts of third parties and not against acts emanating from the institution itself.
      However, I am not inclined to agree either with the Commission's contention that the contested contract is to be viewed in isolation, or with its conclusion that the re-grading of the applicant does not infringe any of the rights arising out of the previous employment relationship.
      In particular, the superficially attractive formal argument that the Commission was under no obligation on the expiry of the previous contract to offer the applicant a fresh contraa and that, accordingly, there was nothing to prevent it from offering him a less senior post, does not stand up to scrutiny. It is important in that connection not to lose sight of the fact that there was already a preexisting employment relationship between the applicant and the defendant when the contract was concluded. That relationship was intended to continue without interruption, as is shown in particular by the fact that the contract was given retroactive effect. Accordingly, a continuous employment relationship may be inferred which involves several consecutive contracts for a fixed period and a contrafor an indefinite period. Although the legitimacy of concluding such a senes of linked contracts cannot be denied outright — there may be reasons which justify the employer's conduct from an economic point of view and make it appear socially acceptable — it must none the less be regarded as settled under the labour laws of many if not all the Member Sutes that it is not permissible for such a series of linked contracts of employment to lead to any erosion of the scope of the protection which labour law affords to those who are economically and socially dependent on employers. Accordingly, on a proper view, a series of linked contracts of employment is also, as far as protection against dismissal and protection of other vested rights of employees are concerned, to be regarded as constituting a single employment relationship.
      The significance of this in the present case is that the applicant must, as regards the protection or his rights, be treated as though he had been continuously employed, irrespective of whether an extension of the validity of a contract or the conclusion of a fresh contract is involved. Accordingly, the question of the grade in which the applicant should have been reclassified does not arise; instead, it is necessary to consider whether it was permissible to demote him from his previous post as head of division or adviser in Grade A3 to principal administrator in Grade A 4.
      Such a demotion is forbidden in principle, not only under the Staff Regulations of Officials of the European Communities but also, for example, under German legislation on public servants, save in certain exceptional cases where it is the result of disciplinary proceedings. Moreover, downgrading and reassignment to less important duties are, at least under German legislation concerning workers and employees in the public service, also permitted only on condition that certain very stringent requirements are complied with; for example, the employee must give his consent or he must be given notice of the proposed transfer. Finally, assignment to less important duties with a corresponding reduction in salary should riot, even in other fields of activity, be permitted unconditionally but only subject to compliance with certain requirements. That conception of protection, deriving from the very essence of labour law, must however also be considered in relation to the Conditions of Employment, even though it is not expressly provided for therein. Accordingly, in this case too, there must be observance of the fundamental principle that a lenghty employment relationship entails a special duty to protect the employee and to provide for his welfare and, that the protection owed may not be^circumvented either by means of a series of linked contracts or through employment by different legal persons which in reality are merely branches of the same entity.
      Therefore, in the light of those considerations, it is necessary to reject the Commission's contention that the duty to provide for the welfare of its officials, which was recognized by the Court in the Kuhner (
            8
         ) judgment, is inapplicable in relation to other employees.
      As regards the scope of the duty to provide for the welfare of officials, the Court of Justice pointed out in the above mentioned Kuhner case and also in Anting (
            9
         ) that the duty in question, inasmuch as it reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants, requires the official authority when it takes a decision concerning the situation of an official to take into consideration in particular all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service hut also those of the official concerned. That also holds true as regards the duty to provide for the welfare of other employees. Thus, in order to maintain that balance when it takes a decision concerning the situation of one of its employees, the official authority must, in its appraisal of the interests involved on both sides, take into account not only the interests of the service but also those of the individual concerned;
      In that regard, the Commission's alternative argument that the duty to provide for the welfare of its officials applies in relation only to unilateral and not to contractual acts of the official authority is also untenable. Ultimately, in the view of the Commission, the applicant signed the contract of his own free will and in full knowledge of its contents.
      Apart from the question whether the duty tö provide for the welfare of employees, which is an essential part of every employment relationship, may be modified in any way, the fact remains in any event that in the present case the applicant, who was aged fifty-four at the time, is highly specialized in his field and was faced with the choice of continuing to work as a principal administrator of not, in fact only appeared to sign the contraa of his own free will and did so subject to an express reservation of his rights.
      If attention is now focused on the question whether by downgrading the applicant the Commission acted in breach of its duty in principle to provide for the welfare of its employees, it remains to be considered whether in reassigning the duties performed by the applicant at the time, it took full account' of all relevant factors, including those connected with the applicant's personal situation. In that regard, the Commission contends that as far as the length of the applicant's service is concerned, until 22 May 1977 he was employed by the Association, an independent legal person, and only subsequently entered the service of the Commission as a result of a decision freely taken by him after he had weighed up all the circumstances.
      Even though that argument may be formally correa, it is none the less impossible to overlook the fact that even during his period of service with the Association the applicant had been placed at the disposal of the defendant and had, amongst other assignments represented it in Benin and in Zambia. Although he was employed by the Association, it cannot in any case be denied that even- during that period of employment — and this strikes me as the decisive factor — the applicant aaed, in the performance of his duties, in the interests of the Commission and for some 14 years placed his expertise at that institution's disposal.
      Moreover, it must be borne in mind in that connection that the applicant as a reasonable man would scarcely have terminated his contraa for an indefinite period with the Association if the Commission had not held out the prospect of an appointment at least equivalent in status to his former post. As both the contract of 9 June 1977 and that of 15 November 1978 show, the contracting parties apparendy proceeded on the assumption, at least at the outset, that the post of head of division or adviser in Grade A 3 corresponded to the duties previously performed by the applicant. In my opinion, therefore, he was fully entitled to expect that, in accordance with the principle of good faith and mutual trust, the duties attaching to that post would also be assigned to him in the future.
      Nor can that argument be refuted by the objection that the applicant had to be downgraded in the interests of the service on the ground that, for budgetary reasons, the post hitherto' occupied by him had to be filled by an official. Even though it might no longer have been possible to employ him in Geneva, the Commission could none the less have aaed differently and sought from amongst the wide range of posts at its disposal, a position for the applicant which was comparable to the post formerly occupied by him.
      Furthermore, the applicant's downgrading cannot be justified by the argument that the A 3 contracts for a fixed period were replaced by an A4 contract of indefinite duration which offered him greater security of tenure. Apart from the faa that even such contracts for an indefinite period provide only limited protection, since they may be terminated by notice, the contraa concluded with the applicant merely accorded him a status which in any event entitled him to protection, as I pointed out in my observations concerning the duty to afford protection which arises under a series of linked contracts.
      Since the conclusion must therefore be drawn that the Commission has failed to discharge its duty to provide for the welfare of the applicant, inasmuch as in the contraa of 22 August 1980 it merely offered him the post of principal administrator in Grade A 4, the Court should, in accordance with the applicant's claim, annul his grading and the corresponding description of his duties and declare that, in the light of the principles referred to above and without prejudice to his rights he must be reclassified in his previous grade with retroactive effect from 1 July 1980.
      2. Second daim
      This claim is concerned with the withdrawal of the applicant's accreditation to the international organizations in Geneva and the new description of his duties contained in the note from the Director General for Development of 9 January 1981. The applicant maintains that the measures involved are decisions adversely affecting him which must, pursuant to Article 11 of the Conditions of Employment, in conjunction with the second paragraph of Article 25 of the Staff Regulations, state the grounds on which they are based.
      However, as I have already pointed out, it is the reclassification of the applicant in a lower grade, contained in the contract of 22 August 1980, which is the measure adversely affecting him. In that light, the contested note is no more than an internal administrative document which does not adversely affect the applicant, in which his duties as principal administrator were set out in detail and which as such may not be challenged in its own right. Moreover, if the applicant's first submission is accepted, his objection to that decision is to no purpose since he no longer has an interest in challenging it.
      As far as the claim for reinstatement in his previous post is concerned, I have already indicated that neither the Conditions of Employment nor the Staff Regulations confer on officials any right to be employed in a specific post. The opposite view would, according to wellestablished case-law of the Court of Justice, lead to an excessive restriction of the Commission's freedom to adopt internal administrative procedures which are, as far as possible, in keeping with the interests of the service. The only restriction to which the administration's discretion is subject regarding the adoption of the necessary organizational measures lies in the fact that an official or other servant may not, merely for reasons of administrative convenience, be given duties to perfcnn which clearly do not correspond in fern, importance and scope to his exper. enee and previous duties.
      Finally, the grant to employees of accreditation to other States or international organizations must be seen as closely bound up with the assignment of duties by the official authority. In general terms, it may be stated, without there being any need to consider the specific nature of such accreditation, that its main purpose is to enable and to make it easier for officials or other employees to carry out their official duties. Consequently, the advantages associated with such accreditation attach to the post and not to the person of the official concerned. Accordingly, the appointing authority must have a margin of discretion in assessing whether such accreditation is required for the performance of specific duties. If the duties of an official are changed and the appointing authority in the proper exercise of its discretion no longer regards accreditation as necessary for the performance of those duties, that decision does not affect the status of the individual concerned, as defined in the Staff Regulations or in the Conditions of Employment and cannot therefore be regarded as a decision adversely affecting him within the meaning of the second paragraph of Article 25 of the Staff Regulations.
      If, following the assignment of other duties to the applicant the Commission withdrew his accreditation on the ground that it was unnecessary for the performance of his new duties, that internal administrative decision cannot be challenged Uwfitlly — which is the sole issue which needs to be resolved in the present case — on the ground either that it does not state the reasons on which it is based or that it constitutes an abuse of a discretionary power.
      Since, as has been demonstrated, the applicant is not entitled to occupy a specific post, it follows that he is not entitled to reinstatement of his accreditation.
      3. The remaining claims
      The applicant also seeks compensation for nonmaterial damage which he claims to have suffered as a result of his downgrading and of the change in the duties assigned to him. His claim is based essentially on the alleged damage to his professional integrity and to his reputation.
      Apart from the fact that such damage has not been sufficiently proven, it seems to me in any event that the solution proposed constitutes appropriate compensation for any damage to the applicant's professional reputation and that the claim for compensation for nonmaterial damage therefore serves no purpose.
      In view of that conclusion, the applicant's claim for the annulment of the implied decisions rejecting his complaints and his alternative claims have become devoid of purpose.
      III —
      In conclusion, I propose that the Court should, whilst rejecting the application in other respects, annul the decision contained in the contract of 22 August 1980 classifying the applicant in Grade A 4 and describing his duties, and declare that the applicant must be re-graded with effect from 1 July 1980, without prejudice to his vested rights, and in accordance with the principles set forth in this opinion. Since the Commission has largely failed in its submissions, it should be ordered to pay the costs pursuant to Article 69 (2) of the Rules of Procedure.
      (
            1
         )	Transited from the German.
      (
            2
         )	Judgment of 28 May 1980 in Joined Cues 33 and 75/79 Ku/meri Commission [1980] ECR 1677.
      (
            3
         )	Judgment of 19 March 1975 in Caie 189/73 Van Reenen y Coamuiion [1975] ECR 445.
      (
            4
         )	Judgment of 12 July 1973 in Case 28/72 Tontodonati v Coamunon (1973) ECR 779.
      (
            5
         )	Judgment of 17 December 1964 in Caie 102/63 Boantni High Authority [Wto] ECR 691.
      (
            6
         )	Judgment of 9 July 1970 in Caie 35/69 Heru Gron née Lampe v Comrauiion [1970] ECR 609.
      (
            7
         )	Judgment of 25 March 1982 in Cist 98/81 Munk v Connmton [1982] EC R USS.
      (
            8
         )	Judgment of 28 May 1980 in joined Cases 33 and 75/79 Kuhntrv Commission [1980] ECR 1677.
      (
            9
         )	Judgment of 29 October 1981 in Case 125/80 Anting v Commiion (l981) ECR 2539.