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In Case 66/75MARGHERITA HEBRANT (NÉE MACEVICIUS), official of the European Parliament, represented by Victor Biel, of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Biel, 18a rue des Glacis,European Parliament, represented by its Secretary-General, Hans Robert Nord, acting as Agent, assisted by Alex Bonn, of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Bonn, 22, cote d'Eich,THE COURT (Second Chamber)composed of: H. Kutscher, President of Chamber, P. Pescatore and M. Sørensen, Judges,Advocate-General: H. MayrasRegistrar: A. Van Houttegives the following
Judgment
Facts
The facts of the case, the procedure, the conclusions and the submissions and arguments of the parties may be summarized as follows:
I —Facts and written procedure
II —Conclusions of the parties
The applicant claims inter alia that the Court should:‘declare that the appointment of Mr Reid to the twofold duties of re-organizer of the Parliament Library and as Chairman of the re-organization working party injuriously affects the applicant, that it is illegal and must consequently be annulled;declare that the Parliament is guilty of a wrongful omission in failing to give favourable consideration to the complaint of Mrs Hebrant …’‘order the defendant to pay the entire costs’.In her reply, the applicant specifies ‘the scope these conclusions’ by stating that she protests also and even principally against her subordination to the orders of Mr Reid and that further she disputes the note from Mr Taylor of 9 October 1974 in that it calls upon the applicant ‘to take a non-existent post in a non-existent computer department’.The European Parliament contends that the application should be declared inadmissible, and in the alternative unfounded, and that there should be an order as to costs in accordance with the provisions applicable. In its rejoinder, it states further, having regard to the abovementioned matters specified in the reply, ‘that it is opposed to any alteration in the basis of the application, which is inadmissible’.
III —Submissions and arguments of the parties developed during the written procedure
1.Admissibility
The Parliament claims that the application is inadmissible for lack of interest and any ground of complaint.The disputed measures were later revoked on 31 July 1975, the date on which the application was made, since on 29 April 1975 Mr Taylor dissolved the Working Party, the latter having lodged its re-organization proposals.Furthermore, these measures, since they amount to general measures for the organization of departments, cannot be the subject of an application.The applicant replies that on 29 April 1975 nothing happened from which it was possible to deduce the revocation of the criticized measures. On the contrary, on 24 April Mr Taylor in the presence of Mr Pöhle, Mr Reid and the applicant, ‘stated very vaguely to Mr Reid that he thanked him for his work of re-organization and that he need take it no further’. This remark certainly did not allow it to be concluded that the said measures had been revoked. But even supposing that there had been a formal revocation — quod non — the application is admissible because on the one hand an official is entitled to complain even against the temporary infringement of his rights and, on the other hand, it suffices that the measures adversely affecting him existed at the time when the administrative complaint was made.The disputed measures are actionable as adversely affecting the applicant's rights under the Staff Regulations, and depriving her of her rank in the hierarchy and of duties corresponding to her grade and seniority.The Parliament repeats in its previous statements, adding that since the interview of 29 April 1975, Mr Taylor in addition to thanking Mr Reid and to declaring the Working Party to be dissolved, introduced Mr Pöhle as the new director of the library. The Parliament offers to prove these facts by the oral testimony of Mr Pöhle.The applicant is mistaken in stating that there was a double ‘decision’ by which Mr Taylor ‘appointed’ Mr Reid to be both ‘re-organizer of the library’ and ‘Chariman of the re-organization Working Party’. The only measure which occurred in the matter, the measure consequent upon Mr Taylor's note of 7 November 1974, consisted in establishing the Working Party and giving the chairmanship of it to Mr Reid, which did not constitute an ‘appointment’ within the meaning of the Staff Regulations. Both the form and the content of that measure make it clear that it was a matter of a measure of internal organization, and furthermore of a temporary nature, and not of a ‘decision’ within the meaning of Article 90 (2) of the Staff Regulations, that is to say, a measure adopted by the appointing authority.
2.On the substance of the case
The applicant, in her application, makes inter alia the following observations:Mr Reid's nomination as re-organizer of the library gave him, by this very fact, the power to give instructions to all the library staff, including the applicant. That subordination appears clearly furthermore from Mr Taylor's letter of 9 October 1974. However, it is incompatible both with the general principles of the law relating to officials and with the spirit of the Staff Regulations (see the tables of basic posts and corresponding career brackets, constituting Annex I to the Staff Regulations) to place an official under the orders of a colleague in a lower grade. That decision adversely affected the applicant's position under the Staff Regulations and her professional dignity.The critized appointment cannot be justified on the ground that the applicant was opposed to the introduction of the new system of classification. According to the wording of her letter of 6 November 1974, she stated that she bowed before the decision of the Parliament. An official cannot be criticized for fulfilling his professional duty by showing his disagreement with measures which he considers to be contrary to the interest of the service.The applicant is all the more justified in disputing Mr Reid's appointment in that she can show that she has experience acquired in the library work; during recent years, she pratically assumed the whole responsibility for the departments of the library. On the other hand, Mr Reid has no qualification as a librarian, has no specific experience and knows only his mother tongue, English. In November 1974, he was only a temporary servant; his appointment as a probationer took place only in April 1975.Under Article 24 of the Staff Regulations, the Community institutions are required to assist officials against threats and illegal acts from their immediate superiors. In the present case the letter of 9 October 1974 contained a threat, Mr Taylor having stated to the applicant that, if she refused the offer to devote herself thenceforth to the work which he suggested to her, she would have to be subordinate to Mr Reid. In failing to act upon the applicant's complaint directed towards the annulment of the disputed measures taken by Mr Taylor, the Parliament was therefore guilty of an unlawful omission. It was wrong for the President of the Parliament, in his letter of 5 May 1975 to claim that the decision of Mr Taylor to appoint Mr Reid as Chairman of the Working Party and not the applicant ‘is founded on a value-judgment’.The Parliament in its defence, argues inter alia as follows:The applicant's rights under the Staff Regulations have not been adversely affected. According to the combined provisions of Articles 5 and 7 of the Staff Regulations, the applicant could only have claimed that the duties which she was given should correspond to a post in her grade. Such was actually the case, her duties having remained those of a principal administrator. The Working Party, which was required only to put forward its proposals, carried out its duties only for seven months. During that time, the library continued to work as in the past; the applicant was therefore not removed from the management of the library.The applicant is not subordinate to Mr Reid, but these two officials manage the library side by side, just as the applicant had previously managed it alongside Mr Lemmer. Furthermore, Grades A 4 and A 5 form a single career bracket, so that officials in one of these grades are not subordinate to one another, in the usual sense. In the present case, the seniority which weighs in favour of the applicant gives her greater authority. It appears from Mr Taylor's notes that he intended to avoid any subordination of the applicant contrary to her status. The real concern of the applicant was to obtain new responsibilities for which she regarded herself as the most qualified person; however, she cannot claim a right under the Staff Regulations to a particular post; furthermore the disputed measures did not imply the creation of a new post.In a hierarchical organization, a final decision must ultimately be taken and executed loyally. The administration of the Parliament only used its power of organization which requires it to arrange the working of the service in accordance with administrative requirements. Mr Taylor intended to have collaborating on the decimal system only the officials who were ready to do so.The reforms suggested by Mr Taylor were approved by the Bureau of the Parliament. Following that decision, it was necessary to prepare the appropriate directives; the creation of a working party was the best solution for this purpose. The choice of a chairman and members of this group came within the discretion of the Director-General; it is doubtful whether the Court is entitled to review this. Nevertheless everything points to the belief that Mr Taylor's decision was justified, given especially that the professional experience of the applicant only related to the analytical system.Lastly, it is incorrect to say that the applicant had during recent years, assumed sole responsibility for the departments of the library. After the transfer of Mr Lemmer to another post, and whilst waiting for a second director of the library to be appointed, Mr Balbiani, head of division, was more particularly responsible for the library. Since the transfer of Mr Balbiani in March 1974, Mr Taylor has assumed responsibility for the library.The applicant's reply runs essentially as follows:The applicant is justified in pleading the infringement of Articles 5 and 7 of the Staff Regulations, since, according to Mr Taylor's note of 9 October 1974, she can no longer perform the duties of principal administrator. In fact, the duties which he had suggested to her in that note (the introduction of a computer system) do not exist; furthermore Mr Taylor could not have overlooked the fact that he had no right to create a new post. On the other hand, it appears clearly from the note that should the applicant not accept the said proposal and should she prefer to continue to work in the library, she would have to follow Mr Reid's instructions. Since in fact she did not agree to the proposal, she had therefore, according to the very words of Mr Taylor, to subordinate herself to Mr Reid.It is wrong to say that the applicant was able to continue to work in the same conditions as previously, when she had been ‘divested of and de facto removed’ from her duties of the management and technical direction of the library.The argument that the career bracket A 5/A 4 forms a unit, so that there cannot be subordination in the reciprocal relationships between A 5 officials and A 4 officials, is wrong; in fact it frequently occurs that an A 5 official finds himself subordinate to his colleague classified as A 4.It cannot be stated that the measures taken by Mr Taylor concerning the re-organization of the library were only of a temporary nature, when the problems created by such a reorganization are the problems of a generation. Furthermore, the task entrusted to Mr Reid was never revoked, either verbally or in writing.Since the beginning Mr Taylor was resolved to introduce the decimal system. However a complete re-organization of the library proved to be impossible immediately, so that Mr Taylor finally decided to resort to a system of combining in a single catalogue the analytical and decimal classifications. Such a mixed system is impracticable, as the applicant demonstrates in detail.The applicant was the only official qualified to put the decimal system into operation. The academic studies leading to qualification as a librarian also deal with this system.Since February 1971, when Mr Lemmer was transferred elsewhere, the applicant alone took over the management, the administration and the technical direction of the whole of the library. Mr Balbiani carried on only supervisory activities from 1970 until 1 March 1974, the date on which Mr Taylor took over responsibility for the library.In its rejoinder the Parliament adheres to its previous statements and adds to them in the following manner:The applicant is attempting to turn the discussion towards matters which are outside the jurisdiction of the Court, that is to say, the preference to be given to this or that classification system of a library and the respective professional competences of Mr Reid and of the applicant herself. Nevertheless the Parliament makes known its views on these points, stating inter alia, in a detailed manner, the reasons why Mr Reid is also highly qualified in the library sphere.The fact that the applicant has suffered no reduction in her position as an official in Grade A 4 follows from the job-description which the applicant herself prepared on 23 March 1975 for the attention of Mr Pöhle. Further, her duties were further widened and increased in importance in summer of 1975, in that she was given the responsibility for the budget for the entire library, including the sphere entrusted to Mr Reid, a task which included the right to veto intended expenditure.It would have been ‘ridiculous’ to entrust the task of re-organizing a department to an official who had declared repeatedly, that she considered that re-organization to be nonsense.The applicant's statements concerning the duties which she undertook previously in the library of the Parliament are contradictory.
IV —Questions put to the parties
After the close of the written procedure the Court (Second Chamber) called upon the parties to reply in writing to the questions;— what had been the duties actually undertaken by the applicant before and after Mr Taylor's note of 9 October 1974;— whether the duties which she undertook after that note were different in quantity or quality from her previous duties;— in case of an affirmative answer, whether the whole of her field of activity, as it appeared after 9 October 1974, corresponded or did not correspond to a post in the grade of an A 4 official;— whether she actually had to accept instruction from Mr Reid and, if so, in what sphere.It further called upon the Parliament to produce the definition of ‘the duties and powers attached to each basis post’ within the meaning of the second paragraph of Article 5 (4) of the Staff Regulations of Officials, and the detailed list of posts for the library departments, to the extent to which such definitions or such a detailed list of posts have been laid down, and where these documents are of such character as to support the replies furnished by the Parliament to the abovementioned questions.The parties complied with these requests.
V —Oral procedure
The parties presented oral argument at the hearing on 18 March 1976.The Advocate-General delivered his opinion at the hearing on 8 April 1976.
Law
I —Admissibility
II —On the substance of the case
Costs
Operative part
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