61981CJ0036_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 36, 37 AND 218/81
PIETER WILLEM SETON, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES RESIDING AT LA HULPE ( BELGIUM ), REPRESENTED BY MARCEL SLUSNY, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34 B RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JORN PIPKORN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY DANIEL JACOB, 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
APPLICATIONS FOR THE ANNULMENT OF THE APPLICANT ' S PERIODIC REPORT FOR THE PERIOD 1973 TO 1975 AND THE COMMISSION ' S DECISION ASSIGNING HIM TO A NEW POST AND FOR AN AWARD OF DAMAGES,
Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 18 FEBRUARY AND 20 JULY 1981 PIETER WILLEM SETON, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, ASSIGNED AS A PRINCIPAL ADMINISTRATOR IN GRADE A 4 TO THE DIRECTORATE GENERAL FOR TRANSPORT ( DG VII ), BROUGHT ACTIONS FOR THE ANNULMENT FIRST OF HIS PERIODIC REPORT FOR THE PERIOD 1973 TO 1975 ( APPLICATIONS 36 AND 218/81 ) AND SECONDLY OF HIS REASSIGNMENT TO A NEW POST WITHIN THE SAME DIRECTORATE GENERAL ( APPLICATION 37/81 ). APPLICATIONS 36 AND 37/81 ALSO CONTAIN CLAIMS FOR COMPENSATION FOR MATERIAL AND NON-MATERIAL DAMAGE ASSESSED BY THE APPLICANT AT BFR 500 000 AND BFR 2 000 000 RESPECTIVELY .
APPLICATIONS 36 AND 218/81 ( PERIODIC REPORT )
2 IT APPEARS FROM THE PAPERS BEFORE THE COURT THAT ON 19 MARCH 1976 MR ERDMENGER, DIRECTOR OF DIVISION VII A 4 OF THE DIRECTORATE GENERAL FOR TRANSPORT AND THE IMMEDIATE SUPERIOR OF THE APPLICANT, WHO AT THAT TIME WAS HEAD OF THE SPECIALIZED BRANCH DEALING WITH HARMONIZATION OF SOCIAL LEGISLATION, DREW UP THE APPLICANT ' S PERIODIC REPORT FOR THE PERIOD 1973 TO 1975 .
3 THREE ASPECTS OF THAT REPORT PRODUCED OBJECTIONS FROM THE APPLICANT, MR SETON . HE CONSIDERED THAT :
THE DESCRIPTION OF HIS DUTIES IN PART 4 ( B ) WAS INCOMPLETE ;
THE ANALYTICAL ASSESSMENTS IN PART 4, IN WHICH THE ASSESSOR HAD AWARDED THE MARK ' ' AVERAGE ' '
FOR THE APPLICANT ' S ABILITY AND CONDUCT IN THE SERVICE, WERE INSUFFICIENT WHEN COMPARED WITH THE PREVIOUS REPORT IN WHICH MR SETON OBTAINED THE MARK ' ' ABOVE AVERAGE ' ' ;
WHILST ACKNOWLEDGING MR SETON ' S TECHNICAL KNOWLEDGE AND EXPERIENCE, THE REPORT CONTAINED AN UNJUSTIFIED CRITICISM IN SO FAR AS IT WAS SAID THAT HIS MANAGEMENT OF HIS ADMINISTRATIVE UNIT LEFT ROOM FOR IMPROVEMENT .
4 IN RESPONSE TO THE APPLICANT ' S OBJECTIONS THE APPEAL ASSESSOR, MR LE GOY, DIRECTOR GENERAL, AMENDED THE PERIODIC REPORT BY SUPPLEMENTING THE DESCRIPTION OF DUTIES BUT AS FAR AS THE REST OF THE REPORT WAS CONCERNED HE CONFIRMED THE ASSESSMENTS MADE BY THE FIRST ASSESSOR .
5 ON 14 APRIL 1978 THE JOINT COMMITTEE ON STAFF REPORTS FOUND ON APPEAL FROM MR SETON THAT THE ASSESSOR ' S GENERAL ASSESSMENTS WERE NOT SUFFICIENT JUSTIFICATION FOR CHANGING THE MARKS AWARDED FOR ABILITY AND CONDUCT IN THE SERVICE AS COMPARED WITH THOSE AWARDED IN THE PREVIOUS REPORT .
6 ON 6 FEBRUARY 1979 MR ERDMENGER EXPRESSLY STATED THE REASONS FOR HIS ASSESSMENTS AS REQUESTED IN THAT OPINION . HE STATED THAT AS HEAD OF AN INDEPENDENT BRANCH MR SETON HAD ASSUMED NEW RESPONSIBILITIES DURING THE PERIOD OF ASSESSMENT, THAT IN THE PERFORMANCE OF THOSE DUTIES HE HAD NOT SHOWN SUFFICIENT APTITUDE FOR ORGANIZING AND MANAGING HIS UNIT AND THAT HE
HAD NOT TREATED HIS SUBORDINATES CORRECTLY OR SUCCEEDED IN CREATING A GOOD WORKING ATMOSPHERE . THOSE CONSIDERATIONS JUSTIFIED, HE STATED, THE REDUCTION OF THE TWO MARKS IN QUESTION AS COMPARED WITH THOSE OBTAINED IN THE PREVIOUS PERIOD . ON 30 JULY 1980 THOSE FINDINGS WERE CONFIRMED BY THE ASSESSOR AND ATTACHED TO THE PERIODIC REPORT .
7 ON 17 JULY 1980 MR SETON HAD MADE A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS AGAINST THE ASSESSMENT OF THE FIRST ASSESSOR . HAVING IN THE MEANTIME RECEIVED NOTIFICATION OF THE APPEAL ASSESSOR ' S OPINION HE SUBMITTED A SECOND COMPLAINT ON 28 OCTOBER 1980 .
8 MR SETON DID NOT RECEIVE A REPLY TO HIS COMPLAINTS AND ON 18 FEBRUARY 1981 HE THEREFORE LODGED APPLICATION 36/81 SEEKING THE ANNULMENT OF THE ENTIRE ASSESSMENT PROCEDURE ON THE GROUNDS OF ' ' CONSISTENT DELAY ' ' .
9 SUBSEQUENTLY, THE COMMISSION REJECTED HIS COMPLAINTS BY A DECISION OF 13 MAY 1981 AND MR SETON THEN LODGED APPLICATION 218/81 ON 20 JULY 1981 . IN THAT APPLICATION HE ADVANCED FOUR ADDITIONAL SUBMISSIONS ALLEGING :
THAT, CONTRARY TO THE PROVISIONS OF THE GUIDE TO STAFF REPORTS, THE JOINT COMMITTEE ON STAFF REPORTS WAS NOT CONSULTED ;
THAT THE APPEAL ASSESSOR IGNORED HIS ROLE OF CONCILIATOR BY MERELY CONFIRMING THE ADVERSE JUDGMENTS OF THE FIRST ASSESSOR ;
THAT SOME OF THE ASSESSMENTS IN THE REPORT WERE MANIFESTLY WRONG ;
THAT THERE WAS A MISUSE OF POWER INASMUCH AS BY MEANS OF HIS UNFAVOURABLE REPORT MR ERDMENGER PREPARED THE GROUND FOR REMOVING THE APPLICANT FROM HIS POST OF HEAD OF DEPARTMENT .
10 IN SUPPORT OF THE LAST SUBMISSION THE APPLICANT MAINTAINS WORD FOR WORD THE ARGUMENTS ADVANCED IN THE DISPUTE ABOUT HIS REASSIGNMENT . SINCE THAT CONTENTION WILL BE EXAMINED IN CONNECTION WITH APPLICATION 37/81, FOR THE
PURPOSES OF APPLICATIONS 36 AND 218/81 ITS EXAMINATION MAY THEREFORE BE LIMITED TO THE SUBMISSIONS RELATING TO THE DELAY IN DRAWING UP THE PERIODIC REPORT AND THE FACT THAT THE JOINT COMMITTEE ON STAFF REPORTS WAS NOT CONSULTED AND TO THE ALLEGATIONS THAT THE APPEAL ASSESSOR IGNORED HIS TRUE ROLE AND THAT CERTAIN ASSESSMENTS WERE WRONG .
THE SUBMISSION REGARDING THE DELAY IN DRAWING UP THE PERIODIC REPORT
11 THE INTERVALS BETWEEN THE DATES SET OUT ABOVE SHOW THAT IN FACT FOUR YEARS AND THREE MONTHS ELAPSED BETWEEN THE DATE ON WHICH THE APPLICANT MADE HIS OBSERVATIONS ON THE FIRST VERSION OF HIS PERIODIC REPORT AND THE DATE ON WHICH IT WAS FINALLY CONFIRMED BY THE APPEAL ASSESSOR . THAT STATEMENT, HOWEVER, CALLS FOR A NUMBER OF OBSERVATIONS .
12 FIRST OF ALL, IT SHOULD BE OBSERVED THAT THE FIRST ASSESSOR DID NOT DELAY IN DRAWING UP THE PERIODIC REPORT IMMEDIATELY AFTER THE ASSESSMENT PERIOD HAS EXPIRED ON 19 MARCH 1976 AND THAT THE SUBSEQUENT SLOWING DOWN OF THE PROCEDURE WAS MAINLY DUE TO THE COMPLAINTS RAISED BY THE APPLICANT . THOSE COMPLAINTS NO DOUBT REPRESENT A LEGITIMATE EXERCISE OF THE REMEDIES AFFORDED BY THE STAFF REGULATIONS AND THE PROVISIONS ADOPTED TO GIVE EFFECT TO THEM . HOWEVER, IN EXERCISING THOSE REMEDIES THE APPLICANT SHOULD HAVE BEEN AWARE THAT THIS WOULD NECESSARILY DELAY THE ASSESSMENT PROCEDURE . IN PARTICULAR, THE APPEAL MADE TO THE JOINT COMMITTEE ON STAFF REPORTS ON 19 NOVEMBER 1976 CAUSED A DELAY OF ONE AND A HALF YEARS AS THAT COMMITTEE ' S OPINION WAS NOT DELIVERED UNTIL 14 APRIL 1978 .
13 ALTHOUGH IT IS THEREFORE TRUE THAT THE ASSESSORS WERE UNDULY SLOW IN ACTING UPON THAT OPINION, THE APPLICANT HAS NOT BEEN ABLE TO PROVE THAT THE DELAY WAS PREJUDICIAL TO HIM IN ANY WAY . HE COMPLAINS THAT DURING THE PERIOD IN QUESTION VARIOUS POSTS FELL VACANT TO WHICH HE COULD HAVE BEEN PROMOTED . IT NEED ONLY BE OBSERVED THAT, IF HE WAS A CANDIDATE, THE APPLICANT DID NOT LODGE ANY COMPLAINT OR BRING ANY ACTION IN THIS REGARD .
14 IN ANY CASE DELAY IN THE ADOPTION OF CERTAIN DEFINITIVE VIEWS DURING THE COURSE OF THE ASSESSMENT PROCEDURE IS NOT SUCH AS BY ITSELF TO AFFECT THE
VALIDITY OF THE RESULTANT REPORT . IT MUST THEREFORE BE CONCLUDED THAT THIS SUBMISSION, AND CONSEQUENTLY THE WHOLE OF APPLICATION 36/81, MUST BE DISMISSED FOR LACK OF ANY INTEREST ON THE PART OF THE APPLICANT .
THE SUBMISSION THAT THE JOINT COMMITTEE ON STAFF REPORTS WAS NOT CONSULTED
15 THE APPLICANT CONTENDS THAT, ACCORDING TO THE GUIDE TO STAFF REPORTS, THE COMMISSION OUGHT TO HAVE CONSULTED THE JOINT COMMITTEE ON STAFF REPORTS BEFORE MAKING ITS DECISION OF 13 MAY 1981 REJECTING HIS COMPLAINT . NO SUCH CONSULTATION TOOK PLACE HOWEVER .
16 IT IS TRUE THAT THE GUIDE TO STAFF REPORTS PROVIDES THAT THE JOINT COMMITTEE MUST BE CONSULTED WHEN THE OFFICIAL ASSESSED LODGES A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS . HOWEVER, IN THIS INSTANCE IT MUST BE BORNE IN MIND THAT THE APPLICANT HAD HIMSELF APPEALED TO THE JOINT COMMITTEE AT EN EARLIER STAGE OF THE PROCEDURE AND HAD OBTAINED SATISFACTION INASMUCH AS THAT COMMITTEE ' S OPINION LED THE ASSESSORS TO GIVE EXPRESS REASONS FOR CERTAIN ASSESSMENTS WHICH HE HAD CHALLENGED .
17 IN THOSE CIRCUMSTANCES, TO REQUIRE THE JOINT COMMITTEE TO BE CONSULTED FOR A SECOND TIME WOULD AMOUNT TO EXCESSIVE FORMALISM THE EFFECT OF WHICH WOULD BE TO PARALYSE THE SMOOTH FUNCTIONING OF THE ASSESSMENT PROCEDURE . THE FACTS SET FORTH ABOVE SHOW NOT ONLY THAT THE APPLICANT WAS ABLE TO MAKE FULL USE OF HIS RIGHTS OF COMPLAINT UNDER THE STAFF REGULATIONS AND THE IMPLEMENTING PROVISIONS ADOPTED PURSUANT TO THEM BUT ALSO THAT HIS COMPLAINTS RECEIVED SERIOUS ATTENTION FROM HIS SUPERIORS, WHO EXPRESSLY STATED THEIR REASONS FOR AN ASSESSMENT WHICH MIGHT HAVE APPEARED INAPPROPRIATE TO THE APPLICANT AND NOT SUFFICIENTLY REASONED TO THE JOINT COMMITTEE .
18 IT FOLLOWS THAT THIS SUBMISSION MUST ALSO BE DISMISSED .
THE SUBMISSION THAT THE APPEAL ASSESSOR IGNORED HIS TRUE ROLE
19 THE APPLICANT ACCUSES THE APPEAL ASSESSOR OF HAVING ADOPTED, QUITE UNCRITICALLY, THE ASSESSMENTS MADE BY THE FIRST ASSESSOR IN HIS LETTER OF 6 FEBRUARY
1979 IN RESPONSE TO THE JOINT COMMITTEE ' S OPINION . THE APPLICANT CONTENDS THAT IN THUS CONFIRMING WHAT HE CONSIDERS TO BE ' ' UNJUSTIFIED ACCUSATIONS ' '
THE APPEAL ASSESSOR DISREGARDED HIS PROPER TASK WHICH IS TO ACT AS A ' ' CONCILIATOR ' '
IN THE DISPUTE BETWEEN AN OFFICIAL AND HIS ASSESSOR .
20 IN MAKING THAT SUBMISSION THE APPLICANT FAILS TO UNDERSTAND THE ROLE OF THE APPEAL ASSESSOR . HIS TASK IS TO CHECK, QUITE INDEPENDENTLY, THE ASSESSMENTS MADE BY THE FIRST ASSESSOR . HE IS THEREFORE PERFECTLY ENTITLED TO CONFIRM THE FIRST ASSESSMENT IF HE THINKS THAT APPROPRIATE .
21 THIS SUBMISSION MUST THEREFORE ALSO BE DISMISSED .
THE SUBMISSION THAT SOME OF THE ASSESSMENTS IN THE PERIODIC REPORT ARE MANIFESTLY WRONG
22 THE APPLICANT CONTENDS THAT THE ASSESSORS '
CRITICAL OBSERVATIONS REGARDING HIS ABILITY TO MANAGE A SPECIALIZED BRANCH AND ON HIS RELATIONS WITH HIS COLLEAGUES ARE MANIFESTLY WRONG AND QUITE GROUNDLESS . HE ATTRIBUTES THEM TO HIS SUPERIORS '
ANIMOSITY TOWARDS HIM DUE TO DIFFERENCES OF OPINION ABOUT THE POLICY PURSUED BY THE DIRECTORATE GENERAL AND BIAS SHOWN ON BEHALF OF ONE OF HIS COLLEAGUES WHOSE PROMOTION HIS IMMEDIATE SUPERIORS WISHED TO ENSURE .
23 IN THIS REGARD IT MUST BE STRESSED THAT ASSESSORS HAVE THE WIDEST DISCRETION WHEN JUDGING THE WORK OF PERSONS UPON WHOM THEY MUST REPORT AND THAT IT IS NOT FOR THE COURT TO INTERFERE WITH THEIR ASSESSMENTS SAVE IN THE CASE OF ERROR OR MANIFEST EXAGGERATION .
24 ON THIS POINT IT NEED ONLY BE RECALLED THAT IN HIS ORIGINAL PERIODIC REPORT THE APPLICANT ' S PERFORMANCE WAS MARKED AS ' ' AVERAGE ' '
AND IT WAS ONLY AT THE APPLICANT ' S INSISTENCE THAT THE ASSESSORS EXPRESSLY STATED THE REASONS WHICH, IN THEIR VIEW, JUSTIFIED A LESS FAVOURABLE ASSESSMENT THAN THAT AWARDED FOR THE PREVIOUS PERIOD OF ASSESSMENT . THE APPLICANT HAS NOT ADDUCED ANY CONVINCING REASON FOR BELIEVING THAT IN MAKING THEIR JUDGMENTS THE ASSESSORS EXCEEDED
THE DISCRETION ALLOWED THEM OR WERE GUIDED BY CONSIDERATIONS ALIEN TO THE SPIRIT OF OBJECTIVITY IN WHICH PERIODIC REPORTS MUST BE DRAWN UP .
25 THIS SUBMISSION MUST THEREFORE ALSO BE DISMISSED .
APPLICATION 37/81 ( REASSIGNMENT )
26 BEFORE THE OCCURRENCE OF THE EVENTS WHICH GAVE RISE TO THIS CASE MR SETON MANAGED AS HEAD OF DEPARTMENT THE SPECIALIZED BRANCH DEALING WITH HARMONIZATION OF SOCIAL LEGISLATION, IN DIVISION A 4 OF DIRECTORATE GENERAL VII ( TRANSPORT ). AT ITS 575TH MEETING ON 8 OCTOBER 1980 THE COMMISSION ADOPTED A PLAN TO REORGANIZE THE DIRECTORATE GENERAL FOR TRANSPORT IN PURSUANCE OF THE SPIERENBURG REPORT WHICH DREW ATTENTION TO THE PROLIFERATION OF DIVISIONS AND SPECIALIZED BRANCHES AND RECOMMENDED A REDUCTION IN THE NUMBER OF SUCH UNITS . ONE OF THE MEASURES ADOPTED AT THAT MEETING WAS THE ABOLITION OF THE SPECIALIZED BRANCH DEALING WITH HARMONIZATION OF SOCIAL LEGISLATION AND MR SETON WAS TRANSFERRED TO THE NEW DIVISION B 1, THE MARKET POLICY AND WORKING CONDITIONS DIVISION, WHOSE TASK IN FUTURE WAS TO CARRY OUT INTER ALIA THE WORK PREVIOUSLY DONE BY THE BRANCH WHICH WAS ABOLISHED . IN THAT DIVISION MR SETON WAS REQUIRED TO MANAGE THE SIXTH SECTOR, ON HARMONIZATION OF WORKING CONDITIONS, UNDER THE AUTHORITY OF THE HEAD OF DIVISION .
27 IT IS COMMON GROUND THAT DURING THE YEAR PRIOR TO THE COMMISSION ' S DECISION THAT REORGANIZATION LED TO CONSULTATIONS WITHIN THE DIRECTORATE GENERAL IN WHICH THE APPLICANT WAS INVOLVED . ON 20 OCTOBER 1980 A MEETING TOOK PLACE TO INFORM ALL THE OFFICIALS OF THE DIRECTORATE GENERAL OF WHAT WAS PLANNED AND ON 30 OCTOBER THE NEW SCHEME OF ORGANIZATION WAS COMMUNICATED TO THEM .
28 BY A LETTER OF 30 JANUARY 1981 FROM THE DIRECTOR OF PERSONNEL THE APPLICANT WAS OFFICIALLY NOTIFIED OF HIS ASSIGNMENT TO DIVISION VII B 1 . THAT LETTER WAS CONFIRMED ON 9 FEBRUARY 1981 BY A LETTER FROM THE DIRECTOR GENERAL OF PERSONNEL AND ADMINISTRATION .
29 ON 30 JANUARY 1981 THE APPLICANT LODGED A COMPLAINT WITH THE COMMISSION UNDER ARTICLE 90 OF THE STAFF REGULATIONS . IN THAT COMPLAINT HE ATTRIBUTED HIS REASSIGNMENT TO THE ILL-WILL OF HIS FORMER DIRECTOR WITH WHOM HE TOOK ISSUE
ON SEVERAL PROBLEMS CONCERNING THE VIEWS ADOPTED BY THE DIRECTORATE GENERAL ON TRANSPORT POLICY . IN SPECIFYING HIS GROUNDS FOR COMPLAINT HE QUESTIONED THE OBJECTIVITY OF HIS IMMEDIATE SUPERIORS, ACCUSING THEM OF BEING SENSITIVE TO PRESSURE FROM CARRIER ORGANIZATIONS AND CERTAIN GOVERNMENTS TO THE POINT OF FAILING TO IMPLEMENT PROVISIONS OF THE TREATY AND CERTAIN REGULATIONS AND DIRECTIVES ADOPTED UNDER THE TREATY .
30 IN RESPONSE TO THOSE ACCUSATIONS AND HAVING REGARD TO A REQUEST FOR ASSISTANCE MADE UNDER ARTICLE 24 OF THE STAFF REGULATIONS BY THE DIRECTOR IN QUESTION THE COMMISSION CHARGED MR VERHEYDEN, DIRECTOR GENERAL OF THE OFFICE FOR OFFICIAL PUBLICATIONS OF THE EUROPEAN COMMUNITIES, TO CARRY OUT AN ADMINISTRATIVE INQUIRY INTO THE FACTS ALLEGED IN MR SETON ' S COMPLAINT . AFTER INTERVIEWING THE APPLICANT AS WELL AS THE OTHER PERSONS CONCERNED MR VERHEYDEN PRODUCED A REPORT ON 23 MAY 1981 IN WHICH WHILST ACKNOWLEDGING THE APPLICANT ' S HUMAN QUALITIES HE FOUND THAT HE WAS ' ' QUITE UNABLE OR UNWILLING TO ACCEPT THAT IN A HIERARCHY EACH GRADE ASSESSES SITUATIONS AT ITS OWN LEVEL AND WITH THE MEANS AVAILABLE AND THAT THE VIEW TAKEN BY A DIRECTOR RESPONSIBLE FOR WORKING OUT THE ENTIRE COMMON TRANSPORT POLICY OR THAT OF A DIRECTOR GENERAL FOR TRANSPORT MIGHT DIFFER FROM THAT OF A HEAD OF SPECIALIZED BRANCH FOR REASONS WHICH ARE QUITE OBJECTIVE AND HONOURABLE ' ' . OF THE MEASURE CHANGING MR SETON ' S ADMINISTRATIVE POSITION MR VERHEYDEN SAID IN HIS REPORT THAT ' ' THE UNSATISFACTORY WAY IN WHICH THIS WAS COMMUNICATED TO MR SETON IS NO DOUBT REGRETTABLE ' '
AND HE ADDED THAT ' ' IT IS HOWEVER WRONG TO SAY THAT IT WAS ADOPTED UNEXPECTEDLY OR THAT MR SETON HAD NO OPPORTUNITY TO VOICE HIS VIEWS ON THE MATTER ' ' . THE REPORT ARRIVED AT THE FINDING THAT ' ' THE ABOLITION OF THE SPECIALIZED BRANCH AS AN INDEPENDENT ADMINISTRATIVE UNIT HAD BECOME DESIRABLE FOR THE PROPER OPERATION OF THE SERVICE, TO WHICH THE WELL-BEING OF THE INDIVIDUAL HAD TO TAKE SECOND PLACE ' ' .
31 FOLLOWING THAT REPORT THE COMMISSION REJECTED THE APPLICANT ' S COMPLAINT ON 23 JULY 1981 AND AT THE SAME TIME REPRIMANDED THE APPLICANT ABOUT THE ' ' RASH ' '
MANNER IN WHICH HE HAD MADE THE ACCUSATIONS AGAINST HIS FORMER DIRECTOR .
32 THE APPLICANT LODGED HIS APPLICATION ON 18 FEBRUARY 1981 TOGETHER WITH AN APPLICATION FOR THE ADOPTION OF AN INTERIM ORDER SUSPENDING THE DECISION TO REASSIGN HIM . AFTER FINDING THAT ' ' WITHIN THE NEW DEPARTMENT TO WHICH HE HAS BEEN TRANSFERRED FOLLOWING THE REORGANIZATION OF DIRECTORATE GENERAL VII THE
APPLICANT WILL BE ABLE TO CARRY OUT THE DUTIES CORRESPONDING TO HIS GRADE AND THAT NOTHING HAS HAPPENED TO HIM WHICH COULD BE REVERSED WERE HIS APPLICATION TO BE GRANTED ' ', THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT, BY AN ORDER OF 12 MARCH 1981 (( 1981 ) ECR 813 ), DISMISSED THE APPLICATION FOR AN INTERIM ORDER ON THE GROUND THAT THE MATTER WAS NOT ONE OF URGENCY .
33 IN HIS APPLICATION THE APPLICANT PUTS FORWARD FIVE SUBMISSIONS ALLEGING THAT THE AUTHORITY WHICH ADOPTED THE DECISION TO REASSIGN HIM HAD NO AUTHORITY TO DO SO, THAT HE WAS NOT PROPERLY CONSULTED ON THE PLANNED MEASURE CONCERNING HIM, THAT HIS ADMINISTRATIVE POSITION AND RIGHTS GUARANTEED BY ARTICLES 5 AND 7 OF THE STAFF REGULATIONS WERE INFRINGED, THAT CONTRARY TO ARTICLE 25 OF THE STAFF REGULATIONS A STATEMENT OF REASONS WAS NOT PROVIDED AND THAT THERE HAS BEEN A MISUSE OF POWER .
THE SUBMISSION AS TO LACK OF AUTHORITY
34 THE APPLICANT CONTENDS THAT THE DECISION TO REASSIGN HIM OUGHT TO HAVE BEEN ADOPTED BY THE MEMBER OF THE COMMISSION RESPONSIBLE FOR STAFF MATTERS AND THAT THE DECISION IS IN ANY CASE CONTRARY TO THE PROVISIONS ADOPTED BY THE COMMISSION ON THE DELEGATION OF POWERS .
35 IT IS CLEAR FROM THE FOREGOING THAT THE APPLICANT ' S REASSIGNMENT WITHIN HIS DIRECTORATE GENERAL WAS DECIDED UPON AS PART OF A GENERAL REORGANIZATION MEASURE ADOPTED BY THE COMMISSION ON 8 OCTOBER 1980 WHICH WAS SUBSEQUENTLY PUT INTO EFFECT BY A SERIES OF SUCCESSIVE MEASURES IN WHICH THE RESPONSIBLE OFFICIALS OF BOTH THE DIRECTORATE GENERAL CONCERNED AND OF THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION WERE INVOLVED .
36 THE INDIVIDUAL MEASURE ADOPTED WITH REGARD TO THE APPLICANT WAS NOTIFIED IN TWO SEPARATE COMMUNICATIONS OF 30 JANUARY AND 9 FEBRUARY 1981 SIGNED BY DULY EMPOWERED OFFICIALS OF THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION . IT IS THEREFORE UNQUESTIONABLE THAT THE REASSIGNMENT WAS EFFECTED IN ACCORDANCE WITH THE WILL OF THE COMMISSION AND WITHIN THE PROPER LIMITS OF THE POWERS DELEGATED WITHIN ITS ADMINISTRATION .
37 THAT SUBMISSION MUST THEREFORE BE DISMISSED .
THE SUBMISSION THAT THE APPLICANT WAS NOT DULY CONSULTED
38 THE APPLICANT CONSIDERS THAT IN VIEW OF THE IMPORTANT CONSEQUENCES WHICH THE ABOLITION OF HIS FORMER BRANCH AND HIS TRANSFER TO OTHER DUTIES ENTAILED FOR HIM THAT MEASURE OUGHT TO HAVE BEEN PRECEDED BY THOROUGH CONSULTATION TO ENABLE HIM TO EXPRESS HIS OPINION ON THE QUESTION WHETHER THE MEASURE PLANNED WAS IN THE INTEREST OF THE SERVICE .
39 AS TO THAT COMPLAINT, IT NEED ONLY BY REMARKED THAT, ALTHOUGH THE STAFF REGULATIONS CONTAIN PRECISE GUARANTEES OF OFFICIALS '
RIGHTS UNDER THEM, THE COMMUNITY ADMINISTRATION IS NOT UNDER ANY DUTY TO SEEK THE INDIVIDUAL VIEWS OF OFFICIALS ON MEASURES OF REORGANIZATION WHICH MAY AFFECT THEIR INDIVIDUAL POSITION . THE ONLY GUARANTEE AFFORDED TO OFFICIALS BY THE STAFF REGULATIONS IN THIS REGARD IS THE DUTY LAID DOWN IN ARTICLE 25 OF THE STAFF REGULATIONS TO STATE THE GROUNDS ON WHICH INDIVIDUAL DECISIONS WHICH MAY ADVERSELY AFFECT THEIR POSITION UNDER THE STAFF REGULATIONS ARE BASED .
40 THIS SUBMISSION MUST THEREFORE BE DISMISSED .
THE SUBMISSION THAT THE APPLICANT ' S ADMINISTRATIVE POSITION WAS AFFECTED
41 THE APPLICANT CONSIDERS THAT THE MEASURE INVOLVING HIS REASSIGNMENT ADVERSELY AFFECTED HIS MATERIAL AND NON-MATERIAL INTERESTS RECOGNIZED IN ARTICLES 5 AND 7 OF THE STAFF REGULATIONS AS WELL AS HIS CAREER PROSPECTS . HE TAKES THE VIEW THAT THE FACT THAT HE WAS DEPRIVED OF THE MANAGEMENT OF A SPECIALIZED BRANCH AND WAS TRANSFERRED TO ANOTHER ADMINISTRATIVE UNIT IN WHICH HE NO LONGER ENJOYS THE SAME INDEPENDENCE AMOUNTS TO A REPUDIATION OF THE GUARANTEES PROVIDED BY THE STAFF REGULATIONS .
42 ON THIS POINT IT MUST BE OBSERVED THAT, ALTHOUGH THE ABOLITION OF THE SPECIALIZED BRANCH MAY HAVE CAUSED THE APPLICANT TO LOSE A CERTAIN INDEPENDENCE, IT DID NOT NEVERTHELESS ALTER HIS POSITION UNDER THE STAFF REGULATIONS IN ANY WAY . THE NEW DUTIES ASSIGNED TO THE APPLICANT COME WITHIN THE
DESCRIPTION OF DUTIES ADOPTED IN A COMMISSION DECISION ( UNDATED ) PUBLISHED IN STAFF COURIER NO 272 OF 4 SEPTEMBER 1973 THE ANNEX TO WHICH PROVIDES AS FOLLOWS WITH REGARD TO THE CATEGORY TO WHICH THE APPLICANT BELONGS :
CAREER BRACKET
BASIC POST
DESCRIPTION OF DUTIES
TITLE
A 4 - A 5
PRINCIPAL ADMINISTRATOR
HEAD OF ONE PARTICULAR SECTOR OF ACTIVITY IN A DIVISION
HEAD OF A SPECIALIZED DEPARTMENT
QUALIFIED OFFICIAL ENGAGED IN PLANNING, ADVISORY OR SUPERVISORY DUTIES IN ONE SECTOR OF ACTIVITY
ASSISTANT TO HEAD OF DIVISION
PRINCIPAL ADMINISTRATOR
OR
HEAD OF DEPARTMENT
43 IT IS CLEAR FROM THAT TABLE THAT BOTH THE NEW AND THE OLD POST FILLED BY THE APPLICANT FALL WITHIN THE DESCRIPTION OF THE TYPICAL DUTIES INVOLVED IN CAREER BRACKET A 4/A 5 .
44 IT THEREFORE APPEARS THAT THE APPLICANT WAS REASSIGNED IN ACCORDANCE WITH THE PRINCIPLE ESTABLISHED IN ARTICLE 5 ( 4 ) OF THE STAFF REGULATIONS THAT BASIC POSTS AND CAREER BRACKETS SHOULD CORRESPOND AND THAT HIS REASSIGNMENT DID NOT CONTRAVENE ARTICLE 7 WHICH STATES THAT THE APPOINTING AUTHORITY MUST, ACTING SOLELY IN THE INTEREST OF THE SERVICE, ASSIGN EACH OFFICIAL TO A POST IN HIS CATEGORY WHICH CORRESPONDS TO HIS GRADE . IT IS CLEAR FROM ALL THE FOREGOING THAT THE APPLICANT WAS REASSIGNED AS PART OF A REORGANIZATION CONCEIVED WITH THE GENERAL INTEREST IN MIND AND CARRIED OUT SUBJECT TO THE STRICTEST OBSERVANCE OF THE PROVISIONS CITED ABOVE .
45 THAT SUBMISSION MUST THEREFORE BE DISMISSED .
THE SUBMISSION THAT REASONS WERE NOT GIVEN
46 THE APPLICANT RELIES INTER ALIA ON ARTICLE 25 OF THE STAFF REGULATIONS WHICH STATES THAT : ' ' ANY DECISION ADVERSELY AFFECTING AN OFFICIAL SHALL STATE THE GROUNDS ON WHICH IT IS BASED ' ' . HOWEVER, THE REASSIGNMENT DECISIONS, HE CLAIMS, CONTAIN NO STATEMENT OF THE GROUNDS ON WHICH THEY ARE BASED EXCEPT A VAGUE REFERENCE TO THE ' ' REORGANIZATION OF THE DIRECTORATE GENERAL FOR TRANSPORT ' '
IN THE LETTER OF 9 FEBRUARY 1981 .
47 THE SCOPE OF THE OBLIGATION UNDER ARTICLE 25 OF THE STAFF REGULATIONS TO STATE THE GROUNDS ON WHICH DECISIONS ARE BASED MUST BE ASCERTAINED FROM THE PURPOSE OF THAT PROVISION WHICH IS TO PROTECT AN OFFICIAL AGAINST THE POSSIBILITY THAT HIS POSITION UNDER THE STAFF REGULATIONS MAY BE ADVERSELY AFFECTED IN ANY WAY . THE STATEMENT OF THE REASONS ON WHICH MEASURES WHICH MAY ADVERSELY AFFECT OFFICIALS ARE BASED IS INTENDED TO ENABLE THE OFFICIAL CONCERNED TO KNOW WHY A DECISION WAS ADOPTED IN HIS REGARD AND TO TAKE STEPS TO DEFEND HIS RIGHTS AND INTERESTS .
48 THAT REQUIREMENT IS SATISFEID WHEN THE MEASURE AGAINST WHICH AN ACTION MAY BE BROUGHT HAS BEEN ADOPTED IN CIRCUMSTANCES KNOWN TO THE OFFICIAL CONCERNED, WHICH ENABLE HIM TO APPREHEND THE SCOPE OF A MEASURE WHICH CONCERNS HIM PERSONALLY .
49 IT APPEARS FROM THE PAPERS BEFORE THE COURT THAT THE APPLICANT KNEW OF THE COMMISSION ' S DECISION CONCERNING THE REORGANIZATION OF HIS DIRECTORATE GENERAL AND WAS AWARE OF THE CONSEQUENCES WHICH THAT REORGANIZATION MUST HAVE UPON HIS OWN ADMINISTRATIVE POSITION . UNDER THOSE CIRCUMSTANCES, THE REFERENCE IN THE COMMUNICATIONS AT ISSUE TO THE REORGANIZATION OF DIRECTORATE GENERAL VII IS A SUFFICIENT INDICATION OF GROUNDS FOR THE PURPOSES OF ARTICLE 25 OF THE STAFF REGULATIONS .
50 THIS SUBMISSION MUST THEREFORE ALSO BE DISMISSED .
THE SUBMISSION AS TO MISUSE OF POWER
51 FINALLY, THE APPLICANT ALLEGES THAT THE MEASURE ADOPTED TO REASSIGN HIM INVOLVED A MISUSE OF POWER . HE TAKES THE VIEW THAT THE ABOLITION OF THE SPECIALIZED BRANCH WHICH HE HAD MANAGED AND THE CHANGING OF HIS DUTIES ARE NOTHING OTHER THAN A DISGUISED DISCIPLINARY MEASURE INFLICTED UPON HIM ON ACCOUNT OF THE DIFFERENCES OF OPINION BETWEEN HIMSELF AND HIS SUPERIORS ON VARIOUS QUESTIONS OF TRANSPORT POLICY WITH THE ULTIMATE AIM OF REMOVING HIM FROM THE SERVICE OF THE COMMISSION . THE UNFAVOURABLE ASSESSMENTS OF HIS WORK CONTAINED IN THE PERIODIC REPORT WHICH IS THE SUBJECT OF THE OTHER TWO ACTIONS HAD THE SAME PURPOSE . THE APPLICANT REFERS TO VARIOUS CLASHES BETWEEN HIMSELF AND HIS SUPERIORS AND IT IS IN CONNECTION WITH THIS LINE OF ARGUMENT THAT HE HAS MADE THE ACCUSATIONS OF WEAKNESS AND BIAS REFERRED TO ABOVE .
52 THE COMPLAINTS MADE BY THE APPLICANT DEMONSTRATE A FAILURE ON HIS PART TO COMPREHEND THE DIFFERENCE BETWEEN THE DEFENCE OF HIS OWN ADMINISTRATIVE
POSITION AND THE DIFFERENCES OF OPINION WHICH INEVITABLY EXIST WITHIN AN ADMINISTRATION, ESPECIALLY AT THE LEVEL AT WHICH VARIOUS POLICIES ARE WORKED OUT IN THE COMPLEX COMMUNITY SETTING .
53 IF MR SETON HAD REASONS FOR DISAPPROVING OF HIS SUPERIORS '
ACTIONS HE COULD HAVE MADE HIS CRITICISMS TO THE COMPETENT AUTHORITIES . THE COMMISSION ' S REACTION TO THE ACCUSATIONS MADE IN THE COMPLAINT OF 30 JANUARY 1981 AND THE TASK ASSIGNED TO MR VERHEYDEN DEMONSTRATE THAT THE COMMISSION WAS SENSITIVE TO THE APPLICANT ' S COMMENTS AND THAT IT ENDEAVOURED TO FORM AN OBJECTIVE VIEW OF THE DIFFERENCES OF OPINION THAT EXISTED .
54 IT SHOULD ALSO BE POINTED OUT THAT THE MEASURES OF REORGANIZATION WHICH LED TO THE ABOLITION OF THE SPECIALIZED BRANCH PREVIOUSLY MANAGED BY THE APPLICANT AND THE DECISION TO REASSIGN HIM WERE ADOPTED BY THE COMMISSION AT THE HIGHEST LEVEL SO THAT IT IS ILLUSORY TO ATTEMPT TO ESTABLISH A LINK BETWEEN THOSE MEASURES AND MR SETON ' S PERSONAL DISPUTE WITH HIS IMMEDIATE SUPERIORS .
55 AS TO THE APPLICANT ' S CONTENTION THAT THE DISAGREEMENT WITH HIS SUPERIORS WAS REFLECTED IN HIS PERIODIC REPORT, IT SHOULD AGAIN BE RECALLED THAT THE FIRST VERSION OF THE REPORT SHOWS GREAT RESERVE ON THE PART OF THE ASSESSORS IN EXPRESSING CERTAIN CRITICISMS OF THE APPLICANT ' S MANAGEMENT OF THE SPECIALIZED BRANCH OF WHICH HE WAS IN CHARGE . MORE EXPLICIT CRITICISM WAS EXPRESSED ONLY IN RESPONSE TO THE COMPLAINT LODGED BY THE APPLICANT WITH THE JOINT COMMITTEE ON STAFF REPORTS .
56 THE SUBMISSION ALLEGING MISUSE OF POWER MUST THEREFORE BE DISMISSED IN RESPECT OF BOTH APPLICATIONS 37 AND 218/81 .
57 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATIONS MUST BE DISMISSED IN THEIR ENTIRETY, INCLUDING THE CLAIMS FOR DAMAGES .
Decision on costs
COSTS
58 ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT, WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THOSE RULES, WHICH CONCERNS COSTS WHICH ONE PARTY HAS UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR, INSTITUTIONS MUST BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY OFFICIALS .
59 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANT SHOULD NOT ENJOY THE ADVANTAGE GIVEN TO OFFICIALS BY ARTICLE 70 OF THE RULES OF PROCEDURE . HE NO DOUBT HAD GROUNDS FOR COMPLAINT AS REGARDS THE SLOWNESS OF THE LAST STAGE OF THE ASSESSMENT PROCEDURE . HOWEVER, IN PURSUING HIS CASE HE MADE SUCH EXCESSIVE CHARGES THAT THE COMMISSION WAS COMPELLED TO INSTITUTE AN ADMINISTRATIVE INQUIRY . THE RESULT OF THAT INQUIRY OUGHT TO HAVE DISSUADED THE APPLICANT FROM CONTINUING HIS ACTION . THUS HIS CONDUCT MADE THE ENTIRE PROCEEDINGS VEXATIOUS IN CHARACTER AND HE MUST BE ORDERED AS A RESULT TO PAY THE WHOLE OF THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATIONS ;
2.ORDERS THE APPLICANT TO PAY THE WHOLE OF THE COSTS, INCLUDING THOSE IN THE PROCEEDINGS FOR THE ADOPTION OF AN INTERIM ORDER .