CELEX: 61968CC0026
Language: en
Date: 1969-06-04
Title: Opinion of Mr Advocate General Roemer delivered on 4 June 1969. # Jeannette Fux v Commission of the European Communities. # Case 26-68.

OPINION OF MR ADVOCATE-GENERAL ROEMER
   DELIVERED ON 4 JUNE 1969 (
         1
      )
   
      Mr President,
   
      Members of the Court,
   The applicant in the present proceedings, a French citizen, entered the service of the European Economic Community on 1 October 1958. She was employed as an official in Grade B 2 in Directorate-General XI (Foreign Trade) Directorate A (Trade Policy) Division 2 (Questions relating to GATT). In May 1967 the Commission of the European Economic Community published a notice of competition for the purpose of filling a post, which had become vacant through promotion, of principal administrative assistant (in Grade B 1) in Directorate-General III Directorate B Division 3. The applicant was one of those who participated in the competition the outcome of which was that at its meeting on 3 July 1967 the selection board placed the applicant first on its list of suitable candidates and this was communicated to her by letter of 12 July 1967. However, no appointment was made to the post in question. After repeated inquiries the applicant was informed on 20 June 1968 that the procedure for filling the post would progress no further until a new detailed list of posts had been drawn up. On 20 June 1968 the new Commission fixed the detailed list in respect of officials in Category B. The post of principal administrative assistant, for which the applicant had applied, no longer appeared in it. The applicant was informed of the abolition of the post by a letter from the Directorate-General for Administration dated 13 August 1968.
   Since she found this unacceptable she decided — having been assigned to another post in Grade B 2 by decision of 25 July 1968 — to institute proceedings before the Court. In her application which was lodged on 13 November 1968 she puts forward the following conclusions :
   
            —
         
         
            for the annulment of the decision communicated to the applicant by letter of 13 August 1969;
         
      
            —
         
         
            for the Commission to be ordered to pay Frs 250000 as compensation for material and non-material damage;
         
      
            —
         
         
            
               alternatively: in any event for the Commission to be ordered to pay the said sum by way of damages.
         
      The Commission on the other hand takes the view that the application is inadmissible and must for this reason be dismissed. In any event it claims that the applicant must be dismissed as unfounded.
   It is on this dispute that I give my opinion today.
   Legal consideration
   I — Questions of Admissibility
   The first matter to be considered in order to deal with the Commission's objection on this point is to what extent the applicant is entitled to bring an action. It should be remembered that in the present case what is at issue is the replacement of a detailed list of posts of the former Commission of the European Economic Community by a list drawn up by the new Commission which no longer makes provision for the post for which the applicant applied. The Commission takes the view that this is a matter which lies in the discretion of the administration, that nobody has a right to a particular post, that by taking part in a competition a candidate may at most be said to have a prospect of or a contingent right to appointment, and that it is therefore impossible to contest by way of an application to the Court the abolition of a post in the detailed list of posts.
   This view of the law is certainly to a large degree correct. Support for it may be found in the national laws on civil servants (to which the Commission referred in the statement of defence and in respect of which — so far as German law is concerned — arguments to the same effect may be found in the Commentary by Plog-Wiedow on the Bundesbeamtengesetz, note 11 to paragraph 172). Furthermore, the Commission's view has a basis in the case-law of the Court of Justice (for example, in Cases 1/55, 1/56, 109/63, 13/64). In fact it is established according to this case-law that measures which an administration takes in the organization of its departments cannot in principle be the subject of proceedings before a judicial body. However, this rule does not apply without exception (again, as is demonstrated by national law and the case-law of the Court). If, in particular, rights of an official or a candidate under the Staff Regulations are adversely affected (which of course is not the same thing as an infringement of the objective law relating to civil servants) this in any event justifies the bringing of an action. An example of this is offered by Case 16/67 in which objection was taken to the severance of an administrative unit from the applicant's division. Although what was concerned was a measure of administrative organization the Court of Justice affirmed that the application was admissible on the ground that:
   ‘An official has the right to expect that the duties which are assigned to him should as a whole be in keeping with the post which corresponds to the grade which he occupies in the scale of posts.’ (
         2
      )
   We must therefore ask whether a similar justification for bringing an action is possible in the present case. In this connexion the primary question should be not so much the consideration that as a general rule no one has the right to demand to be allocated to a specific post but whether the applicant is in a legally protected situation which justifies the institution of proceedings before the Court. This wider formulation of the question was accepted in cases concerned with requests by unsuccessful candidates for the annulment of decisions on promotion. The Court of Justice acted in this spirit even in favour of a candidate participating in an open competition when it spoke of the duty of the administration not to depart substantially from the result of a competition without weighty reasons. (
         3
      ) It is when one takes account in particular of the last-mentioned case that I believe there can be no doubting that the applicant is in a legally protected situation. By reason of her participation in the competition she acquired a right to expect that the procedure for filling the post should be properly carried out, that the administration should exercise in accordance with its obligations the discretionary powers which are involved in this procedure and in particular that the proceedings should not be discontinued save for cogent reasons in the interests of the service. In this connexion it is irrelevant that the discontinuance of the proceedings arises from a measure taken by the administration relating to the organization of its departments or more precisely from the abolition of the post which this procedure was intended to fill.
   If such is the case, however, if it is admitted that the applicant's situation is protected by law there can be no objection to the admissibility of her application for annulment, in particular because the applicant, following the requirements laid down by the Court in an earlier judgment, alleges, giving particulars in support, that there has been a misuse of powers (I shall return to the details of this argument). This does not mean, as the Commission fears it does, that should the application be held to be well founded the Court will issue mandatory instructions to the Commission on how its administrative departments are to be organized; on the contrary, it will still be entirely a matter for the Commission to draw in an appropriate manner the conclusions resulting from the judgment of the Court.
   II — The substance of the case
   1. The application for annulment
   (a) Infringement of the Staff Regulations
   The applicant supports her application for annulment in the first place by refer-.ring to the second paragraph of Article 4 and to Articles 29 and 30 of the Staff Regulations. She argues that once a decision has been issued in which provision is made for a particular post to be filled and once a competition has been carried out it is no longer possible for the administration to withdraw the advertised post.
   However, if one looks to the wording of the said provisions it appears dubious whether it is possible to arrive at the conclusions drawn from them by the applicant. The second paragraph of Article 4 of the Staff Regulations provides in essence that once the appointing authority decides that a vacancy is to be filled it shall notify this vacancy to the staff. Article 29 prescribes a particular procedure for filling the post and the carrying out of various investigations in a given sequence. Finally Article 30 provides that the appointing authority shall make its selection for the post from a list of suitable candidates drawn up by the Selection Board. On the basis of these provisions it is impossible to say that the administration is absolutely bound by decisions taken for the purpose of filling vacant posts. At most it can be said that the said provisions are intended to ensure that the procedure for filling posts is to be carried out on an objective basis and that officials shall have certain opportunities open to them so far as careers are concerned.
   On the other hand it must not of course be overlooked that the result of a competition could be easily circumvented and in practical terms therefore nullified if one were to allow that the appointing authority could at will decline to fill the post once the competition procedure had terminated. This appears to be no more compatible with the spirit of the Staff Regulations than the substantial departure from the order of merit stated in the fist of suitable candidates which was criticized in Case 62/65. Accordingly it cannot be said that the administration has an entirely free hand in arranging its organization, but, following on from the thoughts I have expressed on admissibility, it will on the contrary be necessary to proceed on the basis that the administration is under a duty to take a competition through to a proper conclusion. This principle does not, however, imply that the participants have an indefeasible claim in the sense of a personal right. Rigid principles of this kind have no place in the field of the organization of the departments of an administrative body, a field which, as we have seen, is characterized by a broad discretion vested in the administration. A more sensible view, therefore, is that the administration is not bound by the principles which apply with regard to the revocation of administrative measures conferring benefits on the persons to whom they relate (‘begünstigende Verwaltungsakte’), that is to say, it may decline to take to its conclusion a procedure for filling a vacant post not only when the decision initiating the procedure is illegal, but each time it can show that there is a compelling reason in the interest of the service.
   If one applies those principles when judging the present case few difficulties are presented, for it is clear that the alterations made to the organization of the administration's departments, which entailed the abolition of the post sought by the applicant, were not lacking an objective justification, but that they resulted from the merger of the executives and from the rationalization and re-structuring of the administration which this involved. After the merger the Commission had at its disposal a smaller number of posts in Category B 1 than had existed previously within these three executives. There thus existed a situation which justified the Commission even in dismissing B 1 officials or classifying them in a lower grade, that is to say, in applying Regulation No 259/68 which is familiar to us from other cases.
   If such is the case, however, there can in principle be no objection to the Commission's withdrawal of a B 1 post vacant at this time the effect of which was therefore to deprive the procedure for filling it of any purpose. It might be otherwise only if it had been claimed that the abolition precisely of this post as opposed to another constituted a misuse of powers. But this is not what the applicant has alleged; on the contrary, as we shall see later, the burden of her complaint of a misuse of powers is quite different.
   Finally, the fact that at the time of the vacancy notice (May 1967) the merger of the executives was imminent provides no grounds for altering the conclusions which we have reached up to now. On the contrary, for reasons of efficient administrative management, procedures for filling vacant posts could be justifiably initiated so that, should the need arise, the corresponding appointments could be made promptly and the continuity of administrative management assured. Since, however, the repercussions of the merger could not be predicted in detail at the time, there are no good reasons for taking the view that subsequent discontinuance of the procedure for filling the post on the ground of the consequences of the merger from the point of view of organization could not be justified.
   In all, therefore, I am of the opinion that the first submission discloses no valid criticism of the contested decision.
   (b) Misuse of powers
   I have already mentioned that the applicant also considers that the abolition of the post referred to in the vacancy notice constitutes a misuse of powers. More precisely, she argues that the interests of the service are not the reason for the measure since the Customs Directorate, as an administrative unit concerned exclusively with the questions arising under the the EEC Treaty, was not affected by the re-structuring of the administration. The abolition meant that the division concerned was the only one remaining without a single B 1 post. In fact, she says, this was done with the intention of preventing her from being appointed for, following the fictitious abolition of the post, the duties attached to it were assigned to a German official in the administration of finance who since then has been working with the Commission on a permanent basis as an expert.
   These are indeed serious complamts which call for close examination.
   We can quickly dispose however of the argument that the Customs Directorate was not affected by the re-structuring of the administration. According to the Commission this is not so; on the contrary, apart from the post sought by the applicant one A 4 post and three A 5 posts were abolished in the Directorate. No objection can be taken to this, moreover, since there is nothing which compels the conclusion that the rationalization and alteration of the administrative structure occasioned by the merger were required to leave intact those units whose competence extended and continued to extend solely to matters concerned with the EEC Treaty, administrative units, that is, in respect of which there was no question of their exercising concurrent powers under the three Treaties. Upon the re-structuring of the entire administration and in view of the reduced number of staff it was quite possible that individual administrative units found that their importance had changed, although their duties remained the same, and that their organization was altered accordingly. Thus it can in no way be said that the contested measure could not have been motivated by a desire on the part of the Commission to rationalize its departments.
   similarly the tact that after the abolition of the post in question only a single division of the Commission did not have a B 1 post is not in itself decisive. There is no mandatory rule which imposes an absolute parallelism between the various sections of the administrative structure. On the contrary diversity in the structure of the departments may also be justified on objective grounds, for example, having regard to the importance and extent of their powers or to other reasons on which I shall speak later.
   Finally with regard to the applicant's chief complaint which is that the abolition of the post was intended to operate to her disadvantage and to the advantage of a German official who now carries out the duties corresponding to that post, it is necessary to make the following remarks. There can certainly be no question of a fictitious abolition — to use the applicant's expression — of the post concerned. The post was indeed abolished; it is no longer to be found in the Commission's detailed list of posts or accordingly in its budget. Furthermore it was for this reason impossible to appoint another official to this post. The Commission's solution was to entrust the corresponding duties (or more precisely, a part of them) to an expert, an official seconded for a given period of time by the national administration. This official continues to receive his salary from his national employers; from the Commission he only receives a subsistence allowance in respect of his temporary stay in Brussels and travel expenses (this is sufficiently proved by the documents produced by the Commission). Now it is possible to take the view that, especially given the necessity for independence, the use in this way of a national official in the service of the Commission is not free from objection, at least if it is extensive and for a considerable time. However it is necessary to take account of the special situation in which the Commission found itself following the reduction in staff and in view of the necessary administrative rationalization. I think that this provides sufficient justification for the temporary use of national officials. It seems quite natural that in the first place the Commission resorted to the national administration whose specific problems are concerned. Moreover the view that the solution adopted was directed specifically against the interests of the applicant is in my opinion untenable for the very reason that the national official concerned was not regularly employed in the Commission immediately after the closure of the competition but only from 1 April 1968. This seems to suggest that in fact this must have been a measure the necessity for which only became apparent in the context of the re-structuring of the administration.
   To sum up, I therefore hold to the view that there is no sufficient evidence of a misuse of powers and that on the contrary there are objective reasons in the interests of the service which favour the choice of the measure which was taken. The second submission too, therefore, must be rejected — which means that the whole of the application for annulment must be dismissed as unfounded.
   2. Wrongful act or omission
   There only remains to consider whether the claim for FB 250000 as compensation for material and non-material damage is well founded. The applicant places this claim alongside her application for annulment and also submits it in the alternative, should that application fail.
   
            (a)
         
         
            To begin with, I can be brief about the claim for damages formulated so as to accompany the application for annulment, that is to say, about the applicant's view that those factors which militate in favour of the annulment of the contested decision prove at the same time the existence of a wrongful act or omission. In fact the abolition of the post cannot be re-garded as an illegal measure. However, since the claim founded on the liability of the administration presupposes that there must at least have been some illegal conduct, it must fail in the absence of such conduct.
         
      
            (b)
         
         
            The claim for damages submitted in the alternative is based on the fact that the vacancy notice and the holding of the competition shortly preceded the merger of the executives. In this connexion it is said that the Commission did not give sufficient consideration to the question whether the merger might have repercussions on the procedure for filling posts. In the reply the applicant has pointed out that from July 1967 to June 1968 the Commission kept her in a state of uncertainty about how the procedure was progressing and thus prevented her from participating in other procedures for filling posts.
         
      At least in so far as the first point is concerned all that is necessary has already been said. On the one hand it seems to be clear that two months before the entry into force of the Merger Treaty it could not be predicted in detail what alterations in the administrative structure the merger would involve. On the other hand the prompt initiation of a procedure for filling a vacant post despite the imminent merger was compatible with the principles of efficient administrative management because it paved the way for the administrative structure to be completed quickly and efficiently. I therefore see no cause for describing this conduct on the part of the Commission as constituting a wrongful act. With regard to the complaint put forward in the reply that the Commission left the applicant in a state of uncertainty for a long time it should be said that in view of the extensive and difficult work involved with the merger and the re-structuring of the administration it was hardly possible to arrive at an earlier decision on the fate of the procedure for filling the post with which the applicant was concerned. This factor, too, cannot be regarded as amounting to a wrongful act or omission. Furthermore it must be held against the applicant that she has only herself to blame for not having pursued other career opportunities (which moreover she does not specify) while the procedure in question was suspended. Finally, on the question of the cause of damage I shall say no more than point out that the competition in question was one based on qualifications, which did not call for any special preparation on the part of candidates. Moreover there is no evidence that the applicant incurred expenditure in connexion with such preparation.
   It is therefore clear that from any point of view the claims for damages too are unfounded.
   III — Summary
   For the foregoing reasons my opinion is therefore as follows :
   The application is admissible but none of the submissions formulated in it is well founded. The application must therefore be dismissed in its entirety and, as asked for by the Commission, the applicant must be ordered to bear her own costs.
   (
         1
      )	Translated from the German.
   (
         2
      )	Rec. 1968, p. 445.
   (
         3
      )	Rec. 1966, p. 826.