1 BY APPLICATION LODGED ON 14 DECEMBER 1973 THE APPLICANT BROUGHT BEFORE THE COURT AN ACTION FOR THE ANNULMENT OF THE COMMISSION'S DECISION OF 10 SEPTEMBER 1973 REJECTING HIS REQUEST OF 4 OCTOBER 1972 THAT HE BE RECLASSIFIED IN GRADE A5 .
2 HE IS FURTHER CLAIMING THAT THE DEFENDANT SHOULD BE ORDERED TO MAKE GOOD THE DAMAGE WHICH HE SUFFERED AS A RESULT OF THE COMMISSION'S NEGLIGENT OMISSION TO TAKE THE MEASURES NECESSARY TO EFFECT SUCH RECLASSIFICATION WITH EFFECT FROM 1 FEBRUARY 1970 .
3 IN SUPPORT OF THESE TWO HEADS OF CLAIM THE APPLICANT MAINTAINS THAT UNDER CERTAIN CIRCUMSTANCES AN OFFICIAL IN A LOWER CATEGORY MAY BE ENTITLED TO DIRECT APPOINTMENT TO THE NEXT HIGHER CATEGORY WITHOUT A COMPETITION .
4 ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS EXPRESSLY STATES THAT 'AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER OR PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION '.
5 IT IS CLEAR FROM ARTICLE 29 THAT IN CONSIDERING WHETHER IT IS EXPEDIENT TO HOLD A COMPETITION THE APPOINTING AUTHORITY EXERCISES A DISCRETIONARY POWER .
6 ALTHOUGH, UNDER ARTICLE 7 ( 1 ), AN OFFICIAL CANNOT BE COMPELLED TO PERFORM DUTIES CORRESPONDING TO A GRADE HIGHER THAN HIS OWN, EXCEPT ON A PROVISIONAL BASIS, THE FACT THAT HE AGREES TO PERFORM THEM MAY BE A FACTOR TO BE BORNE IN MIND IN CONNEXION WITH PROMOTION, BUT DOES NOT GIVE HIM THE RIGHT TO BE RECLASSIFIED .
7 BY REFRAINING FROM ORGANIZING A COMPETITION REQUIRING QUALIFICATIONS CORRESPONDING TO THOSE OF THE APPLICANT, THEREBY RENDERING IT IMPOSSIBLE FOR THE LATTER TO BE APPOINTED TO CATEGORY A, THE DEFENDANT WAS NOT ACTING ULTRA VIRES .
8 SINCE THE ACTION CLEARLY LACKS ANY FOUNDATION, THERE IS NO NEED FOR THE COURT TO GIVE A RULING ON THE OBJECTION OF INADMISSIBILITY ENTERED BY THE COMMISSION .
9 THE ACTION BROUGHT BY THE APPLICANT MUST THEREFORE BE DISMISSED .
10 THE APPLICANT'S ACTION HAS FAILED .
11 IN PURSUANCE OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
12 HOWEVER, IN PURSUANCE OF ARTICLE 70 OF THE RULES OF PROCEDURE, IN ACTIONS BROUGHT BY OFFICIALS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE ACTION;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .
