61980CJ0125_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 125/80
GUNTHER ARNING, AN OFFICIAL OF THE EUROPEAN COMMUNITIES RESIDING AT 32 RUE DE SANDWEILER, ITZIG, GRAND DUCHY OF LUXEMBOURG, ASSISTED AND REPRESENTED BY L . SCHILTZ OF THE LUXEMBOURG BAR, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE, LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY DENISE SORASIO, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY R . ANDERSEN OF THE BRUSSELS BAR, 214 AVENUE MONTJOIE, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, M . CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 17 JULY 1979, RELIEVING THE APPLICANT OF HIS DUTIES AS HEAD OF THE INDUSTRIAL SAFETY DIVISION OF THE HEALTH AND SAFETY DIRECTORATE IN THE DIRECTORATE-GENERAL FOR EMPLOYMENT AND SOCIAL AFFAIRS, IN ORDER TO APPOINT HIM TO THE POST OF ADVISER WITHIN THE SAME DIRECTORATE,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 23 MAY 1980, GUNTHER ARNING, AN OFFICIAL IN GRADE A 3 WITH A LEGAL TRAINING IN THE SERVICE OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION CLAIMING, ON THE ONE HAND, THE ANNULMENT OF THE COMMISSION ' S DECISION OF 17 JULY 1979 RELIEVING THE APPLICANT OF HIS DUTIES AS HEAD OF THE INDUSTRIAL SAFETY DIVISION OF THE HEALTH AND SAFETY DIRECTORATE AND TRANSFERRING HIM TO THE POST OF ADVISER IN THE SAME DIRECTORATE AND, ON THE OTHER, THAT THE COMMISSION SHOULD BE ORDERED TO PAY HIM DAMAGES OF ONE UNIT OF ACCOUNT IN RESPECT OF THE NON-MATERIAL DAMAGE WHICH HE HAS SUFFERED OWING TO THIS CHANGE OF POSTING .
2 IT IS CLEAR FROM THE FILE THAT THE CHANGE OF POSTING, WHICH DID NOT RAISE THE PROBLEM OF WHETHER THE APPLICANT ' S POST CORRESPONDED TO HIS GRADE, WAS MADE IN THE CONTEXT OF A REORGANIZATION OF DIRECTORATE-GENERAL V, FOR EMPLOYMENT AND SOCIAL AFFAIRS . IT IS NOT DISPUTED THAT, IN RELATION TO THE HEALTH AND SAFETY DIRECTORATE, THIS REORGANIZATION WAS ALSO A RATIONALIZATION MEASURE WITH A VIEW TO CARRYING OUT THE NEW TASKS NECESSITATED BY THE IMPLEMENTATION OF THE ACTION PROGRAMME ON HEALTH AND SAFETY AT WORK, WHICH WAS THE SUBJECT OF THE COUNCIL RESOLUTION OF 29 JUNE 1978 ( OFFICIAL JOURNAL 1978, C 165, P . 1 ) AND IN WHICH EMPHASIS WAS PUT ON TECHNICAL AND SCIENTIFIC PROBLEMS PARTICULARLY IN THE FIELDS OF TOXICOLOGY AND BIOLOGY .
3 IN RELATION TO THE INDUSTRIAL SAFETY DIVISION, WHICH, ACCORDING TO THE COMMISSION, WAS VERY SMALL AND THE ONLY UNIT IN THE DIRECTORATE TO BE DIRECTED BY A PERSON WITHOUT TECHNICAL OR SCIENTIFIC TRAINING, THE REORGANIZATION LED TO ITS AMALGAMATION, FIRST WITH THE SPECIAL DEPARTMENT FOR SAFETY MATTERS IN THE COAL AND STEEL INDUSTRIES AND AT A LATER DATE WITH THE MINES SAFETY AND HEALTH COMMISSION . IN THE FUTURE ALL SAFETY PROBLEMS ARE TO BE DEALT WITH BY A SINGLE SPECIAL DEPARTMENT, HEADED BY A MINING ENGINEER, AN OFFICIAL IN GRADE A 4 .
4 IT IS ALSO APPARENT FROM THE FILE THAT THE DECISION OF 17 JULY 1979 WAS MADE KNOWN TO THE APPLICANT FOR THE FIRST TIME DURING AN INTERVIEW WITH HIS DIRECTOR ON 31 JULY . ON 2 AUGUST, THE NEW DETAILED LIST OF POSTS RESULTING FROM THE FIRST PHASE OF THE REORGANIZATION WAS PUBLISHED IN ADMINISTRATIVE NOTICES, A BULLETIN SENT OUT TO ALL STAFF, AND ON 26 SEPTEMBER THE APPLICANT, WHO HAD TAKEN UP HIS NEW DUTIES ON THE THIRD OF THE MONTH, HAD AN INTERVIEW WITH HIS DIRECTOR-GENERAL . HOWEVER, IT WAS NOT UNTIL 1 OCTOBER THAT THE APPLICANT RECEIVED A COMMUNICATION DATED 25 SEPTEMBER FROM THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION, WHICH SET OUT THE NEW POST WHICH HAD BEEN GIVEN TO HIM BY THE DECISION OF 17 JULY, BUT WHICH MERELY STATED THAT THE SAID DECISION HAD BEEN TAKEN ' ' IN THE CONTEXT OF MEASURES FOR THE REORGANIZATION OF DIRECTORATE-GENERAL V ' ' .
5 IN THESE CIRCUMSTANCES, THE APPLICANT MAKES FOUR SUBMISSIONS, OF WHICH THREE RELATE TO THE INFRINGEMENT BY THE COMMISSION OF ESSENTIAL PROCEDURAL REQUIREMENTS, WHILST THE FOURTH CONCERNS THE CONTENT OF THE DECISION .
LATE COMMUNICATION OF THE DECISION
6 FIRST, THE APPLICANT ALLEGES THAT THE COMMISISON HAS INFRINGED THE FIRST SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS, WHICH PROVIDES THAT ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL WHICH IS TAKEN UNDER THE STAFF REGULATIONS SHALL AT ONCE BE COMMUNICATED IN WRITING TO THE OFFICIAL CONCERNED .
7 IN THIS REGARD, THE COMMISION SUBMITS THAT THE DECISION OF 17 JULY 1979 WAS A REORGANIZATION MEASURE INVOLVING ALL THE OFFICIALS IN THE DIRECTORATE-GENERAL . AS A RESULT, THE COLLECTIVE COMMUNICATION BY MEANS OF THE PUBLICATION OF THE NEW DETAILED LIST OF POSTS ON 2 AUGUST 1979 WAS ALREADY ENOUGH . IN VIEW OF THE PUBLICATION OF THIS LIST, AS WELL AS OTHER INFORMATION WHICH WAS AT THE APPLICANT ' S DISPOSAL BEFORE HE RECEIVED THE WRITTEN COMMUNICATION OF 25 SEPTEMBER 1979, THE LATTER CANNOT, IN THE COMMISSION ' S VIEW, BE CONSIDERED TO BE LATE .
8 THESE ARGUMENTS ON THE PART OF THE COMMISSION MUST BE REJECTED . ALTHOUGH IT WAS TAKEN IN THE CONTEXT OF A GENERAL REORGANIZATION, THE DECISION TO
TRANSFER THE APPLICANT CONSTITUTES A DECISION RELATING TO A SPECIFIC INDIVIDUAL THE COMMUNICATION OF WHICH IN WRITING MAY NOT BE REPLACED EITHER BY THE PUBLICATION OF THE NEW DETAILED LIST OF POSTS OR BY AN INTERVIEW WITH THE APPLICANT ' S SUPERIORS . THE FACT THAT THE DECISION OF 17 JULY WAS NOT COMMUNICATED UNTIL 25 SEPTEMBER CONSTITUTES AN INFRINGEMENT OF ARTICLE 25 .
9 HOWEVER, SINCE THE COMMUNICATION IS AN ACT SUBSEQUENT TO THE DECISION AND THEREFORE HAS NO INFLUENCE OVER ITS CONTENTS, THIS INFRINGEMENT CANNOT RESULT IN THE ANNULMENT OF THE DECISION CHALLENGED . AS THE APPLICANT HAS NOT ESTABLISHED THE EXISTENCE OF ANY DAMAGE CAUSED SIMPLY BY THE FACT THE COMMUNICATION WAS LATE, THIS INFRINGEMENT ITSELF IS NOT SUFFICIENT REASON TO ORDER THE COMMISION TO PAY DAMAGES . THIS SUBMISSION MUST THEREFORE BE REJECTED .
INADEQUATE STATEMENT OF GROUNDS
10 SECONDLY, THE APPLICANT SUBMITS THAT THE DECISION AFFECTED HIM ADVERSELY AND THAT THE GROUNDS ON WHICH IT WAS BASED SHOULD THEREFORE HAVE BEEN GIVEN, IN ACCORDANCE WITH THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS . THE ONLY REFERENCE IN THE COMMUNICATION OF 25 SEPTEMBER TO THE GENERAL REORGANIZATION OF THE DEPARTMENT WAS INADEQUATE, HE STATES, ESPECIALLY AS THE NEW AIMS SET OUT IN THE ACTION PROGRAMME, WHICH IS AT THE ROOT OF HIS REORGANIZATION, DID NOT AFFECT THE DUTIES OF THE INDUSTRIAL SAFETY DIVISON, AND THE APPLICANT WAS THEREFORE UNABLE TO FORESEE THAT THE REORGANIZATION WOULD EXTEND TO THAT DIVISION .
11 THE COMMISSION, ON THE OTHER HAND, REFERS TO THE JUDGMENT OF THE COURT OF 28 MAY 1980 ( JOINED CASES 33 AND 75/79 KUHNER V COMMISSION ( 1979 ) ECR 1677 ) AND SUBMITS THAT THE GROUNDS GIVEN WERE SUFFICIENT, TAKING ACCOUNT PARTICULARLY OF THE WIDE DISCRETION WHICH IT ENJOYS IN RELATION TO ITS INTERNAL ORGANIZATION AND OF THE FACT THAT THE DECISION REFLECTS ON AN INSTITUTIONAL LEVEL THE NEW POLICIES SET OUT BY THE COUNCIL IN THE ACTION PROGRAMME . THE APPLICANT WAS INVOLVED IN BOTH THE PREPARATION AND THE IMPLEMENTATION OF THAT PROGRAMME AND THEREFORE THE NEW DETAILED LIST OF POSTS COULD NOT HAVE COME AS A SURPRISE TO HIM . FURTHERMORE THE COMMISSION REFERS TO THE INTERVIEWS WHICH THE APPLICANT HAD WITH HIS DIRECTOR AND DIRECTOR-GENERAL BEFORE HE RECEIVED THE COMMUNICATION .
12 AS THE COURT HAS ALREADY STATED IN THE AFOREMENTIONED JUDGMENT, IT IS CORRECT THAT THE DUTY TO GIVE A STATEMENT OF THE GROUNDS ON WHICH A MEASURE CONCERNING ORGANIZATION OF THE DEPARTMENT IS BASED MUST BE RELATED TO THE DISCRETIONARY POWER WHICH THE APPOINTING AUTHORITY EXERCISES IN THIS CONNECTION AND ALSO TO THE MARGINAL NATURE OF THE DISADVANTAGES WHICH RESULT FOR THE OFFICIAL CONCERNED FROM A RE-POSTING WHICH DOES NOT AFFECT HIS GRADE OR HIS MATERIAL SITUATION . HOWEVER, THESE CONSIDERATIONS ARE NOT SUFFICIENT TO JUSTIFY A STATEMENT OF GROUNDS WHICH MERELY REFERS TO THE REORGANIZATION OF THE DIRECTORATE-GENERAL CONCERNED .
13 AS THE COURT ALSO STATED IN THE ABOVE-MENTIONED JUDGMENT, IN ORDER TO DECIDE WHETHER THE REQUIREMENT LAID DOWN IN ARTICLE 25 HAS BEEN MET, IT IS ADVISABLE TO TAKE INTO CONSIDERATION NOT ONLY THE DOCUMENT GIVING NOTICE OF THAT DECISION BUT ALSO THE CIRCUMSTANCES IN WHICH IT WAS TAKEN AND BROUGHT TO THE KNOWLEDGE OF THE PERSON CONCERNED . IN THIS REGARD, IT IS NECESSARY TO INVESTIGATE IN PARTICULAR WHETHER THE APPLICANT WAS ALREADY IN POSSESSION OF THE INFORMATION ON WHICH THE COMMISSION ALLEGES THAT THE DECISION WAS BASED .
14 THE APPLICANT DOES NOT DISPUTE THAT HE WAS INVOLVED IN THE PREPARATION AND IMPLEMENTATION OF THE NEW ACTION PROGRAMME, OR THAT THIS CONFERRED ON THE HEALTH AND SAFETY DIRECTORATE, ALBEIT IN AREAS NOT RELATING TO THE APPLICANT ' S DIVISION, IMPORTANT NEW TASKS OF A TECHNICAL AND SCIENTIFIC NATURE WHICH THE DIRECTORATE WAS UNABLE TO CARRY OUT IN THE ABSENCE OF AN INTERNAL REORGANIZATION AND RATIONALIZATION . IN ADDITION, THE APPLICANT COULD NOT HAVE BEEN UNAWARE OF THE FACT THAT HIS DIVISION WAS VERY SMALL, THAT IT WAS THE ONLY UNIT TO BE HEADED BY AN OFFICIAL WITHOUT A TECHNICAL OR SCIENTIFIC TRAINING AND THAT THEREFORE THE ABOLITION OF THAT DIVISION MIGHT FACILITATE THE NECESSARY RATIONALIZATION . FURTHERMORE, THE PUBLICATION OF THE NEW DETAILED LIST OF POSTS GAVE ALL OFFICIALS AN IDEA OF THE REORGANIZATION MEASURES AS A WHOLE . IN VIEW OF THIS AND OF THE FACT THAT, BEFORE RECEIVING THE COMMUNICATION IN WRITING, THE APPLICANT WAS ABLE TO OBTAIN ADDITIONAL EXPLANATIONS DURING HIS INTERVIEWS WITH THE DIRECTOR AND THE DIRECTOR-GENERAL, IT MUST BE HELD THAT THE OFFICIAL CONCERNED WAS IN A POSITION TO DETERMINE WHETHER THE DECISION WAS WELL-FOUNDED AND LAWFUL, AND TO SEEK A REVIEW OF ITS LEGALITY BY THE COURT . IT FOLLOWS THAT, IN THIS INSTANCE, THE FACT THAT THE STATEMENT OF GROUNDS GIVEN IN THE COMMUNICATION OF 25 SEPTEMBER IS VERY BRIEF IS NOT SUCH AS TO AFFECT THE VALIDITY OF THE DECISION OF 17 JULY OR RENDER THE COMMISSION LIABLE . THIS SUBMISSION ALSO MUST THEREFORE BE REJECTED .
ABSENCE OF PRELIMINARY CONSULTATION
15 THE APPLICANT FURTHER SUBMITS THAT THERE HAS BEEN A BREACH OF THE RIGHTS OF THE DEFENCE, BECAUSE HE WAS NEITHER CONSULTED NOR INFORMED IN ADVANCE OF THE CONTESTED DECISION .
16 THE COMMISSION REPLIES TO THIS SUBMISSION BY REFERRING ONCE AGAINT TO THE ABOVE-MENTIONED JUDGMENT OF 28 MAY 1980, IN WHICH IT WAS STATED THAT ' ' THIS CASE CANNOT BE SAID TO CONCERN THE RIGHTS OF THE DEFENCE BUT ONLY A GENERAL PRINCIPLE OF GOOD ADMINISTRATION TO THE EFFECT THAT AN ADMINISTRATION WHICH HAS TO TAKE DECISIONS, EVEN LEGALLY, WHICH CAUSE SERIOUS DETRIMENT TO THE PERSONS CONCERNED, MUST ALLOW THE LATTER TO MAKE KNOWN THEIR POINT OF VIEW, UNLESS THERE IS A SERIOUS REASON FOR NOT DOING SO ' ' . THE COMMISSION MAINTAINS THAT THE TRANSFER IN QUESTION CANNOT BE ASSIMILATED TO MEASURES OF THIS NATURE .
17 IF THE APPLICANT ' S TRANSFER IS INDEED A MEASURE ADVERSELY AFFECTING HIM, IT IS NONE THE LESS TRUE THAT IT DID NOT AFFECT HIS GRADE OR HIS MATERIAL SITUATION AND COULD NOT BE REGARDED AS A MEASURE CAUSING SERIOUS DETRIMENT TO THE OFFICIAL CONCERNED . IN SUCH A CASE, IT IS NOT POSSIBLE, IN THE ABSENCE OF AN EXPRESS PROVISION IN THE STAFF REGULATIONS, TO DRAWN THE CONCLUSION THAT THERE IS A DUTY ON THE PART OF THE ADMINISTRATION TO CONSULT THE OFFICIAL ON THE DECISION WHICH IT INTENDS TO TAKE IN RELATION TO HIM . THIS SUBMISSION MUST THEREFORE BE REJECTED AS HAVING NO FOUNDATION IN LAW . NEVERTHELESS, IT IS IN ACCORDANCE WITH THE REQUIREMENTS OF GOOD FAITH AND MUTUAL CONFIDENCE, WHICH SHOULD CHARACTERIZE THE RELATIONSHIP BETWEEN OFFICIALS AND THE ADMINISTRATION, THAT THE LATTER SHOULD, AS FAR AS POSSIBLE, PUT THE OFFICIAL IN A POSITION TO MAKE HIS POINT OF VIEW ON THE PROJECTED DECISION KNOWN . SUCH A PRACTICE IS ALSO LIKELY TO PREVENT LEGAL DISPUTES .
INFRINGEMENT OF THE DUTY OF CARE
18 LASTLY, THE APPLICANT SUBMITS THAT THE COMMISSION FAILED IN ITS DUTY OF CARE, IN SO FAR AS, IN DECIDING TO RELIEVE HIM OF HIS DUTIES AS HEAD OF THE INDUSTRIAL SAFETY DIVISION, IT DID NOT TAKE INTO ACCOUNT HIS CONSIDERABLE EXPERIENCE IN HIS SPECIAL FIELD OR HIS ABILITY IN THE SUBJECT, SHOWN BY HIS PERIODIC REPORTS, SO THAT THE DECISION DAMAGED HIS PROFESSIONAL STANDING AND REPUTATION .
19 IN THIS REGARD, IT MUST BE BORNE IN MIND THAT THE ADMINISTRATION HAS A WIDE DISCRETION IN RELATION TO ITS INTERNAL ORGANIZATION . ALTHOUGH IT IS INDEED THE CASE THAT, IN TAKING A DECISION CONCERNING THE SITUATION OF AN OFFICIAL, THE AUTHORITY MUST TAKE INTO ACCOUNT NOT ONLY THE INTERESTS OF THE SERVICE BUT ALSO THOSE OF THE OFFICIAL CONCERNED, THIS CONSIDERATION CANNOT PREVENT THE AUTHORITY FROM UNDERTAKING A RATIONALIZATION OF DEPARTMENTS IF IT BELIEVES THAT THIS IS NECESSARY . FURTHERMORE, THE MERE FACT THAT AN OFFICIAL WITH LEGAL TRAINING IS TRANSFERRED FROM DUTIES AS HEAD OF DIVISION TO BEING AN ADVISER ON ALL LEGAL PROBLEMS ARISING IN HIS DIRECTORATE, CANNOT BE CONSIDERED TO BE A MEASURE DAMAGING THE PROFESSIONAL STANDING AND REPUTATION OF THE OFFICIAL CONCERNED . THUS THE FINAL SUBMISSION MUST ALSO BE REJECTED .
Decision on costs
COSTS
20 ALTHOUGH THE APPLICANT HAS FAILED TO ESTABLISH HIS CASE, NEVERTHELESS IN RELATION TO ANY ORDER AS TO COSTS, THE AFOREMENTIONED CONSIDERATIONS CONCERNING GOOD ADMINISTRATIVE PRACTICE MUST BE TAKEN INTO ACCOUNT . INDEED, IT APPEARS THAT THE ACTION AROSE LARGELY AS A RESULT OF THE PROCEDURE ADOPTED BY THE COMMISSION AND BY THE LACK OF CONSIDERATION FOR THE APPLICANT WHICH THAT PROCEDURE DISPLAYED . IT SHOULD BE POINTED OUT THAT, ALTHOUGH THE APPLICANT WAS INVOLVED IN THE PREPARATORY WORK ON THE REORGANIZATION, HE DID NOT HAVE AN OPPORTUNITY TO MAKE KNOWN HIS POINT OF VIEW ON THE PARTICULAR MEASURE WHICH DIRECTLY AFFECTED HIM, THAT, IN BREACH OF THE STAFF REGULATIONS, THE ADMINISTRATION DELAYED GIVING THE APPLICANT A COMMUNICATION IN WRITING UNTIL HE HAD ALREADY BEEN PERFORMING HIS NEW DUTIES FOR ALMOST A MONTH, AND THAT THE ONLY REFERENCE IN THE COMMUNICATION TO THE GROUNDS ON WHICH THE MEASURE WAS BASED WAS THAT WHICH WAS MADE CONCERNING THE GENERAL REORGANIZATION OF ALL THE DEPARTMENTS IN THE DIRECTORATE-GENERAL . IN THESE CIRCUMSTANCES, THE APPLICANT, WHO MADE HIS APPLICATION BEFORE THE JUDGMENT FROM WHICH THE COMMISSION HAS TAKEN MOST OF ITS ARGUMENTS, SHOULD NOT BE PENALIZED FOR HAVING BROUGHT THE MATTER BEFORE THE COURT IN ORDER TO OBTAIN A REVIEW OF THE EFFECT OF THIS LACK OF CONSIDERATION ON THE LEGALITY OF THE DECISION .
21 IT IS THEREFORE FITTING TO APPLY THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE, WHICH PROVIDES THAT THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS IN PROCEEDINGS WHICH HAVE ARISEN AS A RESULT OF ITS OWN CONDUCT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE COMMISSION TO PAY THE COSTS, INCLUDING THOSE OF THE APPLICANT .