Avis juridique important

61970J0005

European Court reports 1970 Page 01075 Danish special edition Page 00219 Greek special edition Page 00571 Portuguese special edition Page 00613

Summary

1 . THE SYSTEM OF TEMPORARY POSTING MAY ONLY BE APPLIED TO AN OFFICIAL WHO TEMPORARILY OCCUPIES A POST OF A GRADE HIGHER THAN HIS OWN AND THEREBY CARRIES OUT DUTIES WHICH ARE SUBSTANTIALLY DIFFERENT FROM THOSE INVOLVED IN HIS OWN POST .

2 . COMMISSION - INTERNAL ORGANIZATION OF DEPARTMENTS

IN CASE 5/70

MAURICE PRELLE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN BRUSSELS, REPRESENTED BY ERNEST ARENDT, ADVOCATE OF THE COUR SUPERIEURE DE JUSTICE OF THE GRAND DUCHY OF LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34/B/IV CENTRE LOUVIGNY, RUE PHILIPPE-II, APPLICANT,

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PETER GILSDORF, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, EMILE REUTER, 4, BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE DECISION WHEREBY THE COMMISSION REFUSED TO GRANT TO THE APPLICANT, AS FROM 24 JULY 1969, THE DIFFERENTIAL ALLOWANCE SET OUT IN ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS, AND FOR THE AWARD OF DAMAGES,

Grounds

1 THE APPLICANT SEEKS THE ANNULMENT OF THE DECISION WHEREBY THE COMMISSION REFUSED TO GRANT HIM AS FROM 24 JULY 1969 THE DIFFERENTIAL ALLOWANCE PROVIDED FOR CASES OF TEMPORARY POSTING BY ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS; IN ADDITION HE SEEKS DAMAGES FOR THE LIABILITY INCURRED BY THE COMMISSION FOR ITS FAILURE TO REGULARIZE BY EXPRESS DECISION THE EXISTING SITUATION WHEREBY, IRRESPECTIVE OF HIS OWN WISHES, THE APPLICANT WAS LED TO ASSUME DAILY THE DUTIES OF A COLLEAGUE WHO HAD OBTAINED LEAVE ON PERSONAL GROUNDS .

THE APPLICATION FOR ANNULMENT

2 BY THE TERMS OF ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS " AN OFFICIAL MAY BE CALLED UPON TO OCCUPY TEMPORARILY A POST IN A CAREER BRACKET ... WHICH IS HIGHER THAN HIS SUBSTANTIVE CAREER BRACKET ".

3 IT IS NOT DENIED THAT THE APPLICANT, A PRINCIPAL ADMINISTRATOR IN GRADE A 4, IN THE LEGAL DEPARTMENT OF THE COMMISSION, ASSUMED AT LEAST A SUBSTANTIAL PART OF THE DUTIES OF A COLLEAGUE IN GRADE A 3 WHO HAD OBTAINED LEAVE ON PERSONAL GROUNDS .

4 HAVING BEEN CALLED UPON TO OCCUPY TEMPORARILY A POST IN A HIGHER CAREER BRACKET WITHIN HIS CATEGORY, THE APPLICANT BELIEVES HE IS ENTITLED TO PAYMENT OF THE DIFFERENTIAL ALLOWANCE AS SET OUT IN THE ABOVEMENTIONED PROVISION .

5 IN ADDITION TO THE OTHER CONDITIONS FOR ITS APPLICATION, THE FIRST SENTENCE OF ARTICLE 7 ( 2 ) MAKES THE PAYMENT OF THE DIFFERENTIAL ALLOWANCE CONDITIONAL ON THE OCCUPATION OF A POST IN A CAREER BRACKET HIGHER THAN THAT OF THE OFFICIAL WHO IS CALLED UPON TO OCCUPY IT .

6 THIS PROVISION IS INTENDED TO ENSURE THAT AN OFFICIAL WHO IS CALLED UPON TEMPORARILY TO ASSUME DUTIES WHICH ENTAIL RESPONSIBILITIES GREATER THAN THOSE WHICH HE NORMALLY BEARS RECEIVES PAYMENT CORRESPONDING TO THOSE GREATER RESPONSIBILITIES .

7 TO GRANT THE SAME ALLOWANCE TO AN OFFICIAL WHO TEMPORARILY OCCUPIES A POST IN A CAREER BRACKET HIGHER THAN HIS OWN, BUT WHO NEVERTHELESS DOES NOT CARRY OUT DUTIES WHICH ARE SUBSTANTIALLY DIFFERENT FROM THOSE INVOLVED IN HIS OWN POST, WOULD GO BEYOND THE SCOPE OF THIS PROVISION .

8 IT IS CLEAR FROM THE SUBMISSIONS WHERE THE PARTIES ARE IN AGREEMENT THAT, TAKING INTO ACCOUNT THE ORGANIZATION OF THE LEGAL DEPARTMENT OF THE COMMISSION AND THE ASSIGNMENT OF DUTIES WITHIN THAT SERVICE, THERE IS NO SUBSTANTIAL DIFFERENCE BETWEEN THE POST NORMALLY OCCUPIED BY THE APPLICANT AND THE POST TEMPORARILY OCCUPIED BY HIM .

9 THE APPLICANT MAY NOT THEREFORE CLAIM THE DIFFERENTIAL ALLOWANCE PROVIDED FOR BY ARTICLE 7 ( 2 ) OF THE STAFF REGULATIONS .

THE CLAIM FOR DAMAGES

10 ALTERNATIVELY, THE APPLICANT MAINTAINS THAT IN THE ORGANIZATION OF THE LEGAL DEPARTMENT THE COMMISSION HAS NOT GIVEN A SUFFICIENTLY PRECISE DESCRIPTION OF THE POSTS AND HAS NOT PLACED EACH OFFICIAL IN A SPECIFIC POST CORRESPONDING TO HIS GRADE .

11 HE CLAIMS THAT IN CONSEQUENCE OF THIS LACK OF ORGANIZATION AN OFFICIAL CALLED UPON TO OCCUPY TEMPORARILY, WITHIN THAT DEPARTMENT, A POST IN A CAREER BRACKET HIGHER THAN HIS OWN IS UNABLE TO CLAIM THE DIFFERENTIAL ALLOWANCE TO WHICH HE WOULD NORMALLY BE ENTITLED .

12 THE APPLICANT BELIEVES THAT BY VIRTUE OF THIS OMISSION THE COMMISSION IS LIABLE TO HIM FOR COMPENSATION .

13 IT IS FOR THE COMMISSION TO DETERMINE THE INTERNAL ORGANIZATION OF ITS DEPARTMENTS .

14 IN VIEW OF THE LACK OF ANY NOTICEABLE DIFFERENCES BETWEEN THE APPLICANT' S POST AND THE POST TEMPORARILY OCCUPIED BY HIM, BY VIRTUE OF THE WAY IN WHICH THE LEGAL DEPARTMENT WAS ORGANIZED, THE COMMISSION WAS NOT REQUIRED TO GIVE THE APPLICANT A NEW POSTING AS A RESULT OF HIS TEMPORARY OCCUPATION OF THE POST IN QUESTION .

15 FOR THESE REASONS THE ALTERNATIVE REQUEST MUST ALSO BE REJECTED .

Decision on costs

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

17 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

18 HOWEVER, BY VIRTUE OF ARTICLE 70 OF THE RULES OF PROCEDURE INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN ACTIONS BY SERVANTS OF THE COMMUNITIES .

Operative part

THE COURT ( SECOND CHAMBER ) HEREBY :

1 . DISMISSES THE APPLICATION BOTH AS REGARDS THE PRINCIPAL AND THE ALTERNATIVE CLAIM .

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .