Avis juridique important

61982J0299

European Court reports 1983 Page 03141

Parties

IN CASE 299/82

APPLICANT,

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JORN PIPKORN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY ROBERT ANDERSEN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

Subject of the case

APPLICATION TO OBTAIN A REGRADING OF THE APPLICANT PURSUANT TO THE GENERAL DECISION OF THE COMMISSION OF 28 JULY 1981 ON THE REINSTATEMENT ON PROMOTION OF OFFICIALS SECONDED TO THE OFFICE OF A MEMBER OF THE COMMISSION,

Grounds

1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 1 DECEMBER 1982 HORST W. STEINFORT, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR A DECLARATION THAT HE WAS ENTITLED TO BE PROMOTED TO GRADE A 2.

2 THE APPLICANT ENTERED THE EMPLOYMENT OF THE COMMISSION IN 1961 AS A PRINCIPAL ADMINISTRATOR IN GRADE A 4 AND FROM 1964 TO 1967 PERFORMED THE DUTIES OF CHEF DE CABINET TO MR MARGULIES, A MEMBER OF THE EAEC COMMISSION. AT THE END OF THAT SECONDMENT, DURING WHICH HE OCCUPIED A GRADE A 2 POST, HE WAS ASSIGNED TO THE EAEC DIRECTORATE-GENERAL FOR RESEARCH AND THEN IN 1968 PROMOTED TO GRADE A 3 IN DIRECTORATE-GENERAL XIII OF THE COMMISSION, INFORMATION MARKET AND INNOVATION. BY LETTER DATED 18 FEBRUARY 1982 HE REQUESTED THAT THE COMMISSION PROMOTE HIM TO GRADE A 2 ON THE BASIS OF A DECISION TAKEN BY THE COMMISSION IN JULY 1981.

3 SINCE THE APPLICATION IS ALMOST EXCLUSIVELY BASED ON THE SAID DECISION OF JULY 1981 IT IS APPROPRIATE TO REFER FIRST OF ALL TO ITS TERMS. THE DECISION, WHICH HAS NEVER BEEN PUBLISHED, APPEARS IN THE MINUTES OF THE SITTING OF THE COMMISSION ON 28 JULY 1981. UNDER THE HEADING 'REINSTATEMENT ON PROMOTION OF OFFICIALS SECONDED TO A MEMBER'S OFFICE' THE MINUTES READ AS FOLLOWS:

'ON A PROPOSAL FROM THE PRESIDENT AND MR O'KENNEDY THE COMMISSION ADOPTED THE FOLLOWING DECISION:

4 IN THE APPLICANT'S VIEW THE DECISION MEANS THAT OFFICIALS OF CATEGORY A WHO ARE SECONDED TO A MEMBER'S OFFICE ARE ENTITLED TO PROMOTION WITHIN A PARTICULAR PERIOD AFTER THEIR REINSTATEMENT IN THEIR ORIGINAL DEPARTMENT AND THAT PERIOD IS THREE MONTHS IN THE CASE OF PROMOTION TO GRADE A 2. THAT INTERPRETATION OF THE DECISION IS CONFIRMED BY THE CLAUSE 'OU LA PROMOTION LEUR EST ASSUREE' AND IN PARTICULAR BY THE WORD 'ASSUREE' WHICH WOULD HAVE NO MEANING IF FORMER STAFF OF A MEMBER'S OFFICE WERE NOT TO BE PROMOTED.

5 IN THE VIEW OF THE COMMISSION THE DECISION RELATES NOT TO THE RIGHT TO PROMOTION OF OFFICIALS WHO HAVE BEEN SECONDED TO A MEMBER'S OFFICE BUT TO THE PERIOD WITHIN WHICH OFFICIALS PROMOTED WHILE ON SECONDMENT SHOULD BE REINSTATED. THAT SUCH IS ITS PURPORT, AS APPEARS INTER ALIA FROM THE WORDING OF THE DECISION AND FROM THE FACT THAT IT HAS NEVER BEEN PUBLISHED AS BEING OF A PURELY INTERNAL NATURE, IS DEMONSTRATED BY THE NOTE FROM THE PRESIDENT OF THE COMMISSION AND FROM MR O'KENNEDY WHICH WAS THE BASIS OF THE DECISION.

THAT NOTE CONTAINS THE FOLLOWING SENTENCE:

'SINCE PROMOTION TO GRADES A 1, A 2 AND A 3 ENTAILS THE OCCUPATION OF HIGHLY RESPONSIBLE POSTS WHICH IT IS ESSENTIAL TO FILL SPEEDILY FOR THE PROPER FUNCTIONING OF THE DEPARTMENTS, IT SEEMS DESIRABLE TO SHORTEN THE PERIODS AGREED ON IN 1979 AND TO MAKE THEM 3 MONTHS FOR ALL THE GRADES UNDER CONSIDERATION.'

6 THE INTERPRETATION GIVEN BY THE COMMISSION MUST BE FOLLOWED. THE ARGUMENT FAVOURED BY THE APPLICANT WOULD RENDER THE MAIN CLAUSE IN THE DECISION AT ISSUE ('OFFICIALS . . . SHALL REJOIN THE DEPARTMENTS . . . WITHIN 3 MONTHS . . .') MEANINGLESS. MOREOVER, SINCE THAT HYPOTHESIS WOULD HAVE THE EFFECT OF CONFERRING RETROACTIVELY PROMOTION TO HIGH GRADES ON ALL OFFICIALS WHO HAVE BEEN SECONDED TO A MEMBER'S OFFICE IT WOULD DEPART FROM THE PROCEDURE UNDER THE STAFF REGULATIONS GOVERNING PROMOTION WITHOUT REGARD FOR THE DIFFICULTY OF FINDING SUFFICIENT POSTS CORRESPONDING TO SUCH GRADES.

7 THE OTHER COMPLAINTS MADE BY THE APPLICANT, SUCH AS DISCRIMINATORY TREATMENT AND MISUSE OF POWERS BY THE COMMISSION, ARE NOT SUFFICIENTLY PRECISE TO WARRANT CONSIDERATION.

8 THE APPLICATION MUST THEREFORE BE REJECTED.

Decision on costs

COSTS

9 UNDER ARTICLE 69 (2) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS. HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BROUGHT BY STAFF OF THE COMMUNITIES THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS.

Operative part

ON THOSE GROUNDS,

HEREBY: