61982CJ0338_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 338/82
CARLO ALBERTINI, ENGINEER, SCIENTIFIC OFFICER, RESIDING IN ISPRA,
AND
MARIO MONTAGNANI, ENGINEER, PRINCIPAL SCIENTIFIC OFFICER, RESIDING IN BOLOGNA,
BOTH EMPLOYED AT THE JOINT RESEARCH CENTRE, ISPRA, REPRESENTED BY ANGELO ULGHERI, OF THE MILAN BAR, AND MARCEL SLUSNY, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MARTINE REICHERTS, 7 COTE D ' EICH,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY GUIDO BERARDIS, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, ALSO A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF CERTAIN DECISIONS OF THE HEAD OF THE APPLIED MECHANICS DIVISION OF THE JOINT RESEARCH CENTRE, ISPRA, WHEREBY THE APPLICANTS WERE FORBIDDEN TO HAVE CONTACT IN THE COURSE OF THEIR DUTIES WITH CERTAIN EXTERNAL ASSOCIATES, TO TAKE PART IN A SCIENTIFIC CONFERENCE ORGANIZED BY THE UNIVERSITY OF CAIRO AND TO PRESENT A SCIENTIFIC PAPER AT THAT
CONFERENCE, AND ALSO OF AN INTERNAL MEMORANDUM RELIEVING THE APPLICANTS OF THEIR RESPONSIBILITY FOR RESEARCH INTO THE DYNAMIC BEHAVIOUR OF MATERIALS,
Grounds
1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 23 DECEMBER 1982, CARLO ALBERTINI, AN ENGINEER AND SCIENTIFIC OFFICER IN GRADE A 6 AT THE JOINT RESEARCH CENTRE AT ISPRA, AND MARIO MONTAGNANI, AN ENGINEER AND PRINCIPAL SCIENTIFIC OFFICER IN GRADE A 4 AT THE SAME ESTABLISHMENT, BROUGHT AN ACTION CLAIMING THAT THE COURT SHOULD :
DECLARE THAT THE APPLICANTS ARE ENTITLED TO PRESENT AND PUBLISH, AT A SCIENTIFIC CONFERENCE TO BE HELD AT CAIRO UNIVERSITY ON 27 DECEMBER 1982, A SCIENTIFIC PAPER ENTITLED ' ' CONSTITUTIVE EQUATIONS OF AUSTENITIC STAINLESS STEEL IN DYNAMICS - EXPERIMENTS AND CALIBRATION PROCEDURE ' '
( HEREINAFTER REFERRED TO AS ' ' THE PAPER ' ' ), PREPARED IN COLLABORATION WITH TWO RESEARCH WORKERS AT THE UNIVERSITY OF BOLOGNA ;
RECOGNIZE THEIR RIGHT TO MAINTAIN CONTACTS WITH INSTITUTIONS AND RESEARCH WORKERS IN THE COMMUNITY AND NON-MEMBER COUNTRIES ; AND
DECLARE VOID THE INTERNAL MEMORANDUM ISSUED BY THE HEAD OF THE APPLIED MECHANICS DIVISION ON 10 NOVEMBER 1982 RELIEVING THE APPLICANTS OF THEIR RESPONSIBILITY FOR RESEARCH INTO THE DYNAMIC BEHAVIOUR OF MATERIALS AND DEPRIVING THEM OF THE USE OF THE LARGE MACHINE FOR DYNAMIC TESTS .
IN ADDITION, THE APPLICANTS CLAIM THAT THE COMMISSION SHOULD BE ORDERED TO MAKE GOOD THE DAMAGE CAUSED TO THEM BY ITS UNLAWFUL ACTION .
2 IT HAS BECOME APPARENT DURING THE PROCEEDINGS THAT THE ACTION, WHICH WAS BROUGHT UNDER ARTICLES 90 AND 91 OF THE STAFF REGULATIONS, SEEKS IN SUBSTANCE THE ANNULMENT OF THREE SETS OF DECISIONS OR MEASURES TAKEN BY THE APPLICANTS '
SUPERIOR AT THE CENTRE, NAMELY :
( A ) TWO MEMORANDA OF 7 OCTOBER AND 5 NOVEMBER 1982, SIGNED BY THE HEAD OF THE APPLIED MECHANICS DIVISION, REFUSING THE APPLICANTS PERMISSION TO PUBLISH THE ABOVEMENTIONED PAPER AND TO PARTICIPATE IN THE CAIRO CONFERENCE ;
( B)TWO MEMORANDA FROM THE HEAD OF DIVISION, ONE OF 27 SEPTEMBER 1982 REFUSING TO INVITE A POLISH EXPERT AT THE EXPENSE OF THE CENTRE AND ANOTHER OF 6 OCTOBER 1982 REBUKING THE APPLICANTS FOR INTERFERING IN THE PERFORMANCE OF RESEARCH CONTRACTS ;
( C)A MEMORANDUM ISSUED BY THE HEAD OF DIVISION ON 10 NOVEMBER 1982 INFORMING THE OFFICIALS CONCERNED, INCLUDING THE APPLICANTS, OF NEW ARRANGEMENTS CONCERNING THE RESPONSIBILITY FOR RESEARCH INTO THE DYNAMIC BEHAVIOUR OF MATERIALS AND THE USE OF THE RESEARCH EQUIPMENT ( THE ' ' LARGE MACHINE ' ' ) INTENDED FOR THAT PURPOSE .
3 BY A SEPARATE APPLICATION OF 23 DECEMBER 1982, THE APPLICANTS APPLIED FOR AN INTERIM ORDER SUSPENDING THE OPERATION OF THE DECISIONS CONTESTED IN THE MAIN APPLICATION .
4 ON THE SAME DAY THE PRESIDENT OF THE SECOND CHAMBER MADE AN ORDER (( 1982 ) ECR 4667 ) REJECTING THE APPLICATION FOR SUSPENSION OF THE OPERATION OF THE DECISIONS RELATING TO THE PUBLICATION OF THE PAPER AND PARTICIPATION IN THE CAIRO CONFERENCE DUE TO TAKE PLACE ON 27 DECEMBER 1982 AND RESERVING HIS DECISION ON THE OTHER CLAIMS . THE OTHER CLAIMS WERE DISMISSED BY AN ORDER OF 1 FEBRUARY 1983 (( 1983 ) ECR 145 ) ON THE GROUND OF LACK OF URGENCY .
5 THE APPLICANTS HAVE NOT FORMULATED IN LEGAL TERMS THE SUBMISSIONS IN SUPPORT OF THEIR APPLICATION . IT APPEARS FROM THEIR WRITTEN AND ORAL OBSERVATIONS, TAKEN AS A WHOLE, THAT THEY ARE PUTTING FORWARD IN SUBSTANCE THREE SERIES OF COMPLAINTS . IN THE FIRST PLACE, THEY ALLEGE THAT THE MEASURES TAKEN WITH REGARD TO THEM WERE MOTIVATED BY THE ANIMOSITY OF THEIR HEAD OF DIVISION AND FOR THAT REASON WERE BASED ON GROUNDS UNCONNECTED WITH THE INTERESTS OF THE SERVICE . IN THE SECOND PLACE, THEY CLAIM THAT THE MEASURES TAKEN RESTRICTED THEIR SCIENTIFIC FREEDOM ; THEY CONSIDER THAT SUCH A RESTRICTION FOLLOWS FROM THE MANNER IN WHICH THE SECOND PARAGRAPH OF ARTICLE 17 OF THE STAFF REGULATIONS WAS APPLIED TO THEM WITH RESPECT TO THE PUBLICATION OF THE PAPER AT ISSUE, FROM THE OBSTACLES PLACED IN THE WAY OF THEIR CONTACTS WITH INSTITUTIONS OR RESEARCH WORKERS OUTSIDE THE CENTRE AND FROM THE WITHDRAWAL OF RESPONSIBILITY FOR CARRYING OUT RESEARCH INTO THE DYNAMIC BEHAVIOUR OF
MATERIALS . IN THE THIRD PLACE, THEY COMPLAIN THAT ADEQUATE REASONS WERE NOT GIVEN FOR THE VARIOUS MEASURES AT ISSUE, PARTICULARLY AS REGARDS THE DECISION OF 10 NOVEMBER 1982 .
6 THE FIRST OF THOSE COMPLAINTS CALLS FOR A PRELIMINARY OBSERVATION . THE COMPLAINT, WHICH IS SET OUT AT GREAT LENGTH IN THE APPLICATION, INVOLVES A NUMBER OF ALLEGATIONS INSULTING TO THE HEAD OF DIVISION, SOME OF WHICH ARE CAPABLE OF CASTING A SLUR ON HIS PERSONAL, SCIENTIFIC AND ADMINISTRATIVE REPUTATION . THOSE ALLEGATIONS WERE NOT WITHDRAWN UNTIL THE HEARING . IN VIEW OF THE FACT THAT THAT WITHDRAWAL RENDERS THE FIRST COMPLAINT VIRTUALLY WITHOUT SUBSTANCE, IT MAY BE CONCLUDED THAT THE APPLICANTS ARE, IN THE FINAL ANALYSIS, CLAIMING EITHER THAT THERE WAS NO REASON FOR THE MEASURES TAKEN WITH REGARD TO THEM OR THAT THE REASONS FOR THE MEASURES WERE WHOLLY UNCONNECTED WITH THE INTERESTS OF THE SERVICE AND THAT, IN ANY EVENT, THE MEASURES RESTRICT THEIR SCIENTIFIC FREEDOM . IT IS IN THAT LIGHT THAT THE THREE SERIES OF COMPLAINTS SET OUT ABOVE MUST BE CONSIDERED .
THE REFUSAL OF PERMISSION TO PUBLISH THE PAPER AND TO ATTEND THE CAIRO CONFERENCE
7 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT ON 13 JULY 1982 MR ALBERTINI FORWARDED TO THE SECRETARY GENERAL OF THE CAIRO CONFERENCE THE ORIGINAL VERSION OF THE PAPER IN ISSUE FOR INCLUSION IN THE PROGRAMME AND INFORMED HIM OF HIS AND MR MONTAGNANI ' S INTEREST IN THE POSSIBILITY OF DISCUSSING IT AT THE CONFERENCE . THE SECRETARY GENERAL ACKNOWLEDGED RECEIPT BY A LETTER DATED 30 JULY 1982 AND INFORMED THE APPLICANTS THAT THE PAPER HAD BEEN ACCEPTED FOR PRESENTATION TO THE CONFERENCE AND PUBLICATION IN THE BOUND VOLUME OF THE PROCEEDINGS .
8 ON 31 AUGUST 1982 THE APPLICANTS SUBMITTED A REQUEST TO THEIR HEAD OF DIVISION FOR PERMISSION TO PUBLISH THE PAPER AT THE CONFERENCE IN QUESTION .
9 IN A MEMORANDUM OF 7 OCTOBER 1982 THE HEAD OF DIVISION MADE A NUMBER OF CRITICISMS WITH REGARD TO BOTH THE FORM AND THE SUBSTANCE OF THE PAPER . HE DREW THE APPLICANT ' S ATTENTION TO THE FACT THAT THE MAJOR PART OF THE PAPER WAS DEVOTED TO THE REPRODUCTION OF WORK ALREADY PUBLISHED BY OTHER RESEARCH
WORKERS AND OBSERVED THAT ' ' UNFORTUNATELY THE ONLY TWO PAGES WHICH COULD GIVE SOME SUBSTANCE TO THE PAPER ARE VERY POOR . ' '
THE HEAD OF DIVISION INVITED THE APPLICANTS TO WITHDRAW THEIR PAPER . IN ADDITION, HE EMPHASIZED THAT THEY HAD ACTED IMPROPERLY IN SENDING THE PAPER TO THE CONFERENCE ORGANIZER BEFORE SUBMITTING IT FOR INTERNAL REVISION . IN CONCLUSION, HE IMPRESSED UPON THEM THE NEED TO FOLLOW THE NORMAL PROCEDURE IN THE MATTER .
10 ON 5 NOVEMBER 1982 THE HEAD OF DIVISION SENT THE APPLICANTS AN INTERNAL MEMORANDUM CONCERNING THEIR ATTENDANCE AT THE CAIRO CONFERENCE, WHICH READ AS FOLLOWS :
' ' I HAVE EXAMINED THE PROGRAMME AND TAKE THE VIEW THAT IT WOULD NOT BE PROFITABLE TO SEND ANYONE TO THE CONFERENCE . THE PROGRAMME IS GREATLY LACKING IN HOMOGENEITY AND FOR THE MOST PART IS OF NO INTEREST TO US ( PRODUCTION, DESIGN, INDUSTRIAL SESSIONS, ETC .). SOME DISTINGUISHED NAMES APPEAR IN THE PROGRAMME BUT WE CAN OBTAIN THE INFORMATION CONTAINED IN THEIR PAPERS BY OTHER MEANS . THE MATERIALS AND REPORTS OF THE SESSION HAVE LITTLE INTEREST FOR US . I HAVE INVITED YOU TO WITHDRAW YOUR PAPER . NATURALLY MY AUTHORITY DOES NOT EXTEND TO YOUR EXTERNAL CO-AUTHORS . IF THEY WISH TO PRESENT THE PAPER IN THE NAME OF THEIR UNIVERSITY THEY WILL HAVE TO REACH AGREEMENT WITH THEIR SUPERIORS . ' '
11 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT ON 30 NOVEMBER 1982 THE APPLICANTS WROTE TO THE CONFERENCE ORGANIZER TO INFORM HIM THAT PERMISSION TO PUBLISH HAD NOT YET BEEN GIVEN AND THAT THE PAPER MUST BE REGARDED AS WITHDRAWN UNLESS PERMISSION WAS FORTHCOMING WITHIN THE REQUIRED PERIOD .
12 IT APPEARS FROM UNCHALLENGED INFORMATION PROVIDED BY THE COMMISSION THAT ULTIMATELY THE PAPER WAS IN FACT PUBLISHED IN THE PROCEEDINGS OF THE CONFERENCE, WHICH THE APPLICANTS DID NOT ATTEND .
13 IN ORDER TO DEMONSTRATE THE UNLAWFULNESS OF THE REFUSAL OF THEIR TWO REQUESTS THE APPLICANTS REFER TO AN INTERNAL MEMORANDUM DATED 15 MAY 1979 ( NO 13/79 ) FROM THE DIRECTOR OF THE ISPRA ESTABLISHMENT RELATING TO THE PROCEDURE
FOR NOMINATING THOSE WHO SHOULD TAKE PART IN SCIENTIFIC AND TECHNICAL CONFERENCES AND THE PRESENTATION OF PAPERS . THEY REFER IN PARTICULAR TO TWO POINTS IN THAT MEMORANDUM, FROM WHICH IT APPEARS THAT THE APPLICATION TO TAKE PART IN A CONFERENCE THAT IS TO BE SUBMITTED TO THE HIERARCHICAL SUPERIOR SHOULD CONTAIN INTER ALIA ' ' IF POSSIBLE CONFIRMATION THAT THE PAPER HAS BEEN ACCEPTED BY THE ORGANIZER ' '
( POINT 2.7 ) AND THAT OFFICIALS ARE AUTHORIZED TO FORWARD TO THE ORGANIZERS THEIR PROPOSED PAPERS ' ' IN THE FORM OF A TITLE OR SUMMARY ' '
( POINT 4.1.B ). THE APPLICANTS MAINTAIN THAT THEY CANNOT THEREFORE BE CRITICIZED FOR SENDING IN ADVANCE TO THE CONFERENCE ORGANIZERS WHAT THEY DESCRIBED IN THEIR ORAL ARGUMENT AS A ' ' DRAFT ' '
OR ' ' SKETCH ' ' .
14 IN ADDITION, THE APPLICANTS EMPHASIZED THE LIMITS WHICH IN THEIR VIEW WERE INHERENT IN THE RIGHT OF CONTROL EXERCISED BY THE INSTITUTION, UNDER THE SECOND PARAGRAPH OF ARTICLE 17 OF THE STAFF REGULATIONS, OVER THE PUBLICATIONS OF ITS OFFICIALS ON SUBJECTS CONNECTED WHICH THE WORK OF THE COMMUNITIES . IN THAT RESPECT THEY POINT OUT THAT, ACCORDING TO THE SECOND SENTENCE OF THAT PARAGRAPH, PERMISSION TO PUBLISH MAY BE REFUSED ONLY WHERE THE PROPOSED PUBLICATION ' ' IS LIABLE TO PREJUDICE THE INTERESTS OF THE COMMUNITIES . ' '
IN THEIR OPINION, CONSIDERATION OF THOSE INTERESTS MAY INVOLVE QUESTIONS SUCH AS SECRECY OR SECURITY, MAY NOT EXTEND TO CONTROL OF THE QUALITY OF A DOCUMENT ; IN PARTICULAR THE ALLEGED MEDIOCRITY OF A DOCUMENT CANNOT ADVERSELY AFFECT THE INTERESTS OF THE COMMUNITIES . IT WAS ALL THE MORE UNJUSTIFIED TO REFUSE PUBLICATION OF A PAPER OF HIGH SCIENTIFIC QUALITY SUCH AS THAT OF THE APPLICANTS .
15 THE COMMISSION OBSERVES THAT THE APPLICANTS DID NOT FOLLOW THE NORMAL PROCEDURE FOR SUBMITTING A REQUEST FOR PERMISSION TO PUBLISH AND DID NOT OBSERVE THE PRECISE AND EXPRESS PROVISIONS OF INTERNAL MEMORANDUM NO 13/79 . THE REQUEST FOR PERMISSION, ON THE APPROPRIATE FORM, WAS NOT SUBMITTED UNTIL A MONTH AND A HALF AFTER THE PAPER AT ISSUE HAD BEEN FORWARDED TO THE CONFERENCE ORGANIZERS IN CAIRO . THAT ATTEMPT TO CONFRONT THE APPLICANT ' S SUPERIORS WITH A FAIT ACCOMPLI IS IN FLAGRANT BREACH OF ARTICLE 17 OF THE STAFF REGULATIONS AND IS SUFFICIENT IN ITSELF TO JUSTIFY DISMISSAL OF THE ACTION .
16 WITH REGARD TO SCOPE OF THE RIGHT OF CONTROL EXERCISED BY THE COMMUNITY INSTITUTIONS OVER THE PUBLICATIONS OF THEIR OFFICIALS UNDER THE SECOND PARAGRAPH OF ARTICLE 17, THE COMMISSION EMPHASIZES THAT THAT RIGHT IS INTENDED, IN THE SCIENTIFIC FIELD, TO ENSURE OBSERVANCE OF A FUNDAMENTAL REQUIREMENT, NAMELY THAT PUBLICATIONS MADE IN THE NAME OF THE CENTRE SHOULD NOT ADVERSELY AFFECT THE SCIENTIFIC REPUTATION OF THE COMMUNITY .
17 IN THE PRESENT CASE, THE COMPETENT HEAD OF DIVISION EXPRESSLY INFORMED THE APPLICANTS OF HIS CRITICISMS REGARDING THE INADEQUATE SCIENTIFIC QUALITY OF THEIR PAPER AND IN THAT CONNECTION THE COMMISSION CONSULTED TWO OUTSIDE EXPERTS, ONE BELONGING TO THE FRENCH ATOMIC ENERGY COMMISSION AND THE OTHER TO THE NUCLEAR RESEARCH CENTRE IN KARLSRUHE ; BOTH CONFIRMED THE HEAD OF DIVISION ' S OPINION .
18 THE COMMISSION ADDS THAT IN AUGUST 1983 THE APPLICANTS MADE A REQUEST FOR PUBLICATION OF AN AMENDED AND IMPROVED VERSION OF THEIR PAPER FOR A CONFERENCE IN CHICAGO ( SMIRT VII ). THE PERUSAL COMMITTEE AT THE CENTRE FOUND THAT CERTAINS PASSAGES IN THE PREVIOUS VERSION, CONSIDERED TO BE SCIENTIFICALLY INCORRECT, HAD BEEN DELETED AND THAT OTHERS HAD BEEN IMPROVED OR SUPPLEMENTED . MOREOVER, ACCORDING TO THE COMMISSION, COMPLETELY NEW PASSAGES HAD BEEN ADDED, WHICH PROVIDED THE NEW TEXT WITH A SUBSTANTIALITY WHICH IT PREVIOUSLY LACKED . FINALLY, THE PERUSAL COMMITTEE PROPOSED AMENDMENTS WHICH THE AUTHORS IMMEDIATELY ACCEPTED . CONSEQUENTLY, PERMISSION TO PUBLISH WAS GRANTED, WHICH, ACCORDING TO THE COMMISSION, DEMONSTRATES THAT THE HEAD OF DIVISION ' S ATTITUDE ON THE OCCASION OF THE REQUEST FOR PUBLICATION OF THE VERSION INTENDED FOR THE CAIRO CONFERENCE WAS FULLY JUSTIFIED AND THAT THERE WAS NO ANIMOSITY TOWARDS THE APPLICANTS .
19 FINALLY, AS REGARDS THE APPLICANTS '
ATTENDANCE AT THE CAIRO CONFERENCE, THE COMMISSION STATES THAT AN OFFICIAL REQUESTING TO GO ON A MISSION DOES NOT HAVE THE RIGHT TO DO SO ; RATHER THE COMPETENT SUPERIOR HAS A DISCRETION TO AUTHORIZE HIM TO DO SO IN SO FAR AS THE MISSION APPEARS APPROPRIATE AND COMPATIBLE WITH THE FUNDS AVAILABLE . IN THE PRESENT CASE THE HEAD OF DIVISION CONSIDERED THE CAIRO MISSION TO BE INAPPROPRIATE AND SUPERFLUOUS . THE COMMISSION CONSIDERS THAT IN ANY EVENT THAT QUESTION IS NO LONGER OF ANY CONSEQUENCE SINCE THE CAIRO CONFERENCE IS NOW IN THE PAST .
20 THE APPLICANTS PUT FORWARD TWO CONTENTIONS IN REPLY TO THE COMMISSION ' S ARGUMENTS .
21 ON THE ONE HAND, THEY CONSIDER THAT THE COMMISSION MAY NOT PUT FORWARD OPINIONS OBTAINED AFTER THE ACTION WAS BROUGHT AND WHICH HAVE NOT BEEN EXAMINED BY BOTH SIDES . SECONDLY, THEY ALLEGE THAT THE PAPER PRESENTED FOR THE CHICAGO CONFERENCE IS NOT IN ANY WAY AN AMENDED VERSION OF THE PAPER IN QUESTION BUT A COMPLETELY SEPARATE PAPER .
22 IN ORDER TO RESOLVE THESE ISSUES, IT IS NECESSARY FIRST OF ALL TO RECALL THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 17 OF THE STAFF REGULATIONS :
' ' AN OFFICIAL SHALL NOT, WHETHER ALONE OR TOGETHER WITH OTHERS, PUBLISH OR CAUSE TO BE PUBLISHED WITHOUT THE PERMISSION OF THE APPOINTING AUTHORITY, ANY MATTER DEALING WITH THE WORK OF THE COMMUNITIES . PERMISSION SHALL BE REFUSED ONLY WHERE THE PROPOSED PUBLICATION IS LIABLE TO PREJUDICE THE INTERESTS OF THE COMMUNITIES . ' '
23 THAT PROVISION IS SUPPLEMENTED IN RELATION TO OFFICIALS OF THE SCIENTIFIC AND TECHNICAL STAFF OF THE EUROPEAN ATOMIC ENERGY COMMUNITY BY ARTICLE 94 OF THE STAFF REGULATIONS, WHICH PROVIDES INTER ALIA THAT THE OBLIGATION TO OBTAIN PERMISSION EXTENDS TO ' ' THE PUBLICATION . . OF ANY MATTER ' '
DEALING WITH THE WORK OF THE COMMUNITY .
24 THE OBLIGATIONS ARISING FROM THOSE PROVISIONS FOR THE OFFICIALS CONCERNED ARE AMPLY SET OUT, AS FAR AS THE REQUIREMENTS OF THE ISPRA ESTABLISHMENT ARE CONCERNED, IN INTERNAL MEMORANDUM NO 13/79, THE RELEVANCE OF WHICH HAS BEEN RECOGNIZED BY THE PARTIES .
25 IT FOLLOWS BOTH FROM THE AFORESAID PROVISIONS OF THE STAFF REGULATIONS AND FROM THE INTERNAL MEMORANDUM THAT THE OFFICIALS CONCERNED MAY NOT ENTER INTO ANY COMMITMENT REGARDING OFFICIAL PARTICIPATION IN SCIENTIFIC MEETINGS AND THE PRESENTATION OF PAPERS BEFORE SUBMITTING TO THE SUPERIOR AUTHORITY THE DRAFT OF THE DOCUMENTS WHICH THEY WISH TO PRESENT OR PUBLISH ON THE OCCASION OF SUCH MEETINGS .
26 IT IS TRUE THAT INTERNAL MEMORANDUM NO 13/79 ALLOWS OFFICIALS TO ANNOUNCE THE TITLE OF THEIR CONTRIBUTIONS AND TO FORWARD A SUMMARY THEREOF IN ADVANCE, BUT IT IS EXPRESSLY STATED AT POINT 4.1.B . THAT ' ' FULL TEXTS MAY IN NO EVENT BE FORWARDED TO THE CONFERENCE IF THEIR PUBLICATION HAS NOT BEEN DULY AUTHORIZED . ' '
27 IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT IT WAS THE FULL TEXT OF THEIR PAPER WHICH THE APPLICANTS, LONG BEFORE THEY SUBMITTED THEIR REQUEST FOR PERMISSION, FORWARDED TO THE CONFERENCE ORGANIZERS IN CAIRO, INFORMING THEM OF THEIR WISH TO PARTICIPATE . THE HEAD OF DIVISION WAS THEREFORE FULLY JUSTIFIED IN REMINDING THEM, IN HIS MEMORANDUM OF 7 OCTOBER 1982, OF THEIR OBLIGATION TO OBSERVE THE RULES APPLICABLE IN THE MATTER .
28 IN SO FAR AS THE CONTENT OF THE PAPER STILL NEEDS TO BE CONSIDERED IN SPITE OF THE CLEAR BREACH BY THE APPLICANTS OF THEIR DUTIES UNDER THE STAFF REGULATIONS AND INTERNAL MEMORANDUM NO 13/79, THE FOLLOWING SHOULD BE ADDED .
29 AS THE COMMISSION RIGHTLY OBSERVED, THE COMPETENT AUTHORITY IS ENTITLED TO TAKE INTO ACCOUNT ALL ASPECTS OF A COMMUNICATION OR A DOCUMENT CONCERNED WITH THE WORK OF A COMMUNITY INSTITUTION IN ORDER TO DETERMINE WHETHER ITS PUBLICATION IS COMPATIBLE WITH THE INTERESTS OF THE COMMUNITY . IN PARTICULAR, IN THE CASE OF A RESEARCH ESTABLISHMENT SUCH AS THE CENTRE, THE COMPETENT AUTHORITY IS ENTITLED TO ASSESS THE SCIENTIFIC VALUE OF A WORK IN ORDER TO DETERMINE THE EFFECT OF ITS PUBLICATION ON THE SCIENTIFIC REPUTATION OF THAT ESTABLISHMENT .
30 IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT THE HEAD OF DIVISION, WHO, BY VIRTUE OF THE INTERNAL ORGANIZATION OF THE CENTRE, WAS ENTRUSTED WITH CONTROLLING THE SCIENTIFIC WORK OF THE DEPARTMENTS PLACED UNDER HIS AUTHORITY, DID NOT EXCEED HIS LAWFUL DISCRETION IN ASSESSING THE DRAFT PAPER FROM THE VIEWPOINT OF THE SCIENTIFIC QUALITIES DESIRABLE IN THE CASE OF WORK PRESENTED IN THE NAME OF THE CENTRE . THE APPLICANTS HAVE BEEN UNABLE TO DEMONSTRATE ANY CIRCUMSTANCES WHICH COULD LEAD TO THE VIEW THAT THERE WAS A MANIFEST ERROR IN THAT ASSESSMENT .
31 IN THOSE CIRCUMSTANCES IT DOES NOT APPEAR NECESSARY TO CONSIDER THE OPINIONS WHICH THE COMMISSION HAS OBTAINED OR TO RESOLVE THE QUESTION WHETHER THE DOCUMENT SUBSEQUENTLY PRESENTED AT THE CHICAGO CONFERENCE IS AN IMPROVED VERSION OF THE PAPER IN ISSUE OR AN ENTIRELY NEW DOCUMENT .
32 AS REGARDS THE QUESTION OF PARTICIPATION IN THE CAIRO CONFERENCE, WHICH THE APPLICANTS STILL CONSIDER IMPORTANT AS A MATTER OF PRINCIPLE, IT MUST BE OBSERVED THAT IT IS FOR THE SUPERIOR AUTHORITY ALONE TO DECIDE, IN COMPLETE FREEDOM, WHETHER IT IS APPROPRIATE TO ALLOW STAFF TO PARTICIPATE IN THEIR OFFICIAL CAPACITY IN SCIENTIFIC MEETINGS OF THAT KIND . THE APPLICANTS CANNOT THEREFORE COMPLAIN THAT THEIR HEAD OF DIVISION CONSIDERED THAT THE CAIRO CONFERENCE, WHATEVER THE VALUE OF ITS WORK, WAS NOT OF SUFFICIENT INTEREST FROM THE VIEWPOINT OF THE WORK PERFORMED BY THE CENTRE .
33 FINALLY, IN SO FAR AS THE COMPLAINT BASED ON THE FAILURE TO GIVE ADEQUATE REASONS APPLIES TO THE TWO DECISIONS IN QUESTIONS, IT MUST BE OBSERVED THAT BOTH DECISIONS CONTAIN AN EXPRESS STATEMENT OF REASONS, WHICH WAS MOREOVER FULLY UNDERSTOOD BY THOSE CONCERNED .
34 IT FOLLOWS FROM THE FOREGOING THAT THE COMPLAINTS MADE AGAINST THE INTERNAL MEMORANDA OF 7 OCTOBER AND 5 NOVEMBER 1982, SIGNED BY THE HEAD OF THE APPLIED MECHANICS DIVISION, MUST BE REJECTED .
THE REFUSAL TO ESTABLISH CERTAIN OUTSIDE CONTACTS
35 IN THEIR APPLICATION AND THEIR ORAL OBSERVATIONS THE APPLICANTS COMPLAINED THAT OBSTACLES WERE SYSTEMATICALLY PLACED IN THE WAY OF THEIR EFFORTS TO ESTABLISH SCIENTIFIC CONTACTS WITH INSTITUTIONS OR RESEARCH WORKERS IN THE COMMUNITY OR IN NON-MEMBER COUNTRIES . HOWEVER, ONLY TWO OF THE INCIDENTS REFERRED TO ARE THE SUBJECT OF CLAIMS FOR ANNULMENT, NAMELY THE REFUSAL TO RECEIVE A POLISH EXPERT AT THE ESTABLISHMENT AND THE REBUKES DELIVERED TO THE APPLICANTS BECAUSE OF THEIR INTERVENTION IN THE PERFORMANCE OF CERTAIN RESEARCH CONTRACTS . THE COURT MUST THEREFORE CONFINE ITS CONSIDERATION TO THOSE TWO INCIDENTS .
36 IN ANSWER TO THE APPLICANTS '
COMPLAINTS, THE COMMISSION CONTENDED THAT THERE HAR NEVER BEEN ANY GENERAL BAN ON THE APPLICANTS MAINTAINING CONTACTS WITH EXPERTS OUTSIDE THE CENTRE . THE TWO INCIDENTS REFERRED TO BY THE APPLICANTS MUST EACH BE CONSIDERED ACCORDING TO THEIR PARTICULAR MERITS ; THE COMMISSION CONSIDERS THAT THE REFUSAL IN THE FIRST CASE AND THE REBUKES IN THE SECOND WERE FULLY JUSTIFIED .
37 WITH REGARD TO THE REFUSAL OF THE PROPOSAL TO INVITE A POLISH EXPERT, IT APPEARS FROM THE CONTESTED DECISION ITSELF THAT THE INVITATION TO MAKE A SCIENTIFIC VISIT TO THE CENTRE WAS TO BE AT THE EXPENSE OF THE COMMUNITY . THE AUTHORIZATION OF SUCH A VISIT FALLS WITHIN THE POWERS OF THE HEAD OF THE DEPARTMENT CONCERNED ; THE APPLICANTS CANNOT THEREFORE COMPLAIN THAT THE HEAD OF DIVISION TOOK THE VIEW THAT, IN VIEW OF THE FACT THE SERVICES PROVIDED BY THE EXPERTS ON THE OCCASION OF PREVIOUS VISITS HAD BEEN CONSIDERED DISAPPOINTING, A FURTHER INVITATION DID NOT APPEAR APPROPRIATE .
38 AS REGARDS THE INTERNAL MEMORANDUM OF 6 OCTOBER 1982, IT APPEARS FROM THAT MEMORANDUM THAT THE HEAD OF DIVISION REBUKED THE APPLICANTS FOR INTERFERING WITH THE PERFORMANCE OF A RESEARCH CONTRACT WITHOUT THE KNOWLEDGE OF THE PERSON PRIMARILY RESPONSIBLE FOR THE CONTRACT, FOR FORWARDING TO A THIRD PARTY A LETTER SENT TO THE CENTRE BY A FRENCH ORGANIZATION AND FOR INTERVENING IMPROPERLY IN ANOTHER CONTRACT . THOSE INCIDENTS LED THE HEAD OF DIVISION MERELY TO REMIND THE APPLICANTS OF THE RULE THAT ' ' IN ITS OUTSIDE CONTACTS THE CENTRE MUST SPEAK WITH A SINGLE VOICE ' '
AND TO DESCRIBE THEIR CONDUCT AS UNACCEPTABLE BECAUSE IT CAUSED ' ' CONFUSION TO OUTSIDE ASSOCIATES AND CHAOS WITHIN THE CENTRE ' ' .
39 SINCE THE PURPOSE OF THAT INTERNAL MEMORANDUM WAS MERELY TO REMINED THE APPLICANTS OF CERTAIN ELEMENTARY PRINCIPLES VALID FOR ANY ADMINISTRATION IN ITS RELATIONS WITH THIRD PARTIES, IT CANNOT BE REGARDED AS AN ACT CAPABLE OF ADVERSELY AFFECTING THE APPLICANTS WITHIN THE MEANING OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .
40 IT APPEARS THEREFORE THAT THE COMPLAINTS MADE UNDER THIS HEAD MUST BE DISMISSED ON THE GROUND THAT THEY DO NOT DISCLOSE ANY LEGITIMATE INTEREST .
WITHDRAWAL FROM THE APPLICANTS OF THEIR RESPONSIBILITY FOR RESEARCH INTO THE DYNAMIC BEHAVIOUR OF MATERIALS
41 THE SUBJECT-MATTER OF THIS COMPLAINT IS AN INTERNAL MEMORANDUM DATED 10 NOVEMBER 1982 FROM THE HEAD OF DIVISION ADDRESSED INTER ALIA TO THE APPLICANTS, THE TERMS OF WHICH WERE AS FOLLOWS :
' ' WITH EFFECT FROM TODAY MR VERZELETTI WILL TAKE OVER RESPONSIBILITY FOR RESEARCH INTO THE DYNAMIC BEHAVIOUR OF MATERIALS, COMPONENTS AND STRUCTURES, USING THE LARGE MACHINE FOR DYNAMIC TESTS .
HIS FIRST TASK WILL BE TO DRAW UP AN INSTRUMENTATION PLAN, A PLAN FOR CARRYING OUT TESTS TO PERFECT THE MACHINE AND A PLAN OF EXPERIMENTS IN THE MEDIUM TERM ( TWO TO THREE YEARS ). HE WILL COORDINATE THE NUMERICAL SUPPORT ACTIVITIES NECESSARY FOR THE PROJECT . ' '
42 THE APPLICANTS ALLEGE THAT THE EFFECT OF THAT MEMORANDUM WAS WRONGLY TO DEPRIVE THEM OF THEIR RESPONSIBILITY, IN THE FIELD OF ACTIVITY ASSIGNED TO THEM, FOR AN INSTRUMENT OF RESEARCH WHICH THEY HAD DEVISED AND CONSTRUCTED IN THE COURSE OF MANY YEARS OF WORK .
43 IN THEIR OPINION, THE CONTESTED DECISION COULD BE TAKEN ONLY BY THE APPOINTING AUTHORITY AND NOT BY THE HEAD OF DIVISION . IN ADDITION IT CONTAINED NO STATEMENT OF REASONS AS REQUIRED BY ARTICLE 25 OF THE STAFF REGULATIONS .
44 ON THAT ISSUE THE COMMISSION CONTENDS FIRST OF ALL THAT MR ALBERTINI ' S COMPLAINS ARE WITHOUT FOUNDATION SINCE HE HAS RETAINED ALL HIS PREVIOUS DUTIES ; CONSEQUENTLY, ONLY MR MONTAGNANI IS IN FACT CONCERNED .
45 AS REGARDS THE NATURE OF THE CONTESTED DECISION, THE COMMISSION STATES THAT IT IS A MEASURE OF INTERNAL ORGANIZATION TAKEN WITHIN THE APPLIED MECHANICS DIVISION AND CANNOT THEREFORE BE REGARDED AS A DECISION CAPABLE OF ADVERSELY AFFECTING THE APPLICANTS WITHIN THE MEANING OF ARTICLE 25 OF THE STAFF REGULATIONS . THE REORGANIZATION WAS NECESSARY BECAUSE MR MONTAGNANI, WHOSE MERITS WITH RESPECT TO THE CONSTRUCTION OF THE MACHINE ARE NOT DISPUTED, HAD NOT SHOWN IN THE PAST SUFFICIENT APTITUDE FOR WORK INVOLVING MANAGEMENT AND COORDINATION, WHICH BECAME NECESSARY ONCE THE CONSTRUCTION STAGE WAS
COMPLETE . IN NO EVENT CAN THE FACT THAT THE APPLICANTS CONTRIBUTED TO THE CONSTRUCTION OF THE EQUIPMENT IN QUESTION, WHICH IS THE PROPERTY OF THE CENTRE, CONFER ON THEM A RIGHT OF EXCLUSIVE USE . IN THAT REGARD THE COMMISSION EMPHASIZES THAT THE APPLICANTS, LIKE OTHER RESEARCH WORKERS AT THE CENTRE, CONTINUE TO HAVE ACCESS TO THIS RESEARCH INSTRUMENT .
46 WITH REGARD TO THIS HEAD OF CLAIM, IT MUST BE REMEMBERED THAT IT IS NOT POSSIBLE TO REGARD AS A MEASURE ADVERSELY AFFECTING AN OFFICIAL, WITHIN THE MEANING OF ARTICLE 25 OF THE STAFF REGULATIONS, AND AS SUCH SUBJECT TO THE REQUIREMENT THAT THE ADMINISTRATIVE AUTHORITY SHOULD STATE THE GROUNDS ON WHICH IT IS BASED, A MEASURE OF INTERNAL ORGANIZATION WHICH IS NOT OF SUCH A NATURE AS TO AFFECT THE OFFICIAL ' S POSITION UNDER THE STAFF REGULATIONS OR TO INFRINGE THE PRINCIPLE THAT THE POST TO WHICH HE IS ASSIGNED SHOULD CORRESPOND TO HIS GRADE ( SEE ON THIS POINT THE JUDGMENT OF 1 JUNE 1983 IN JOINED CASES 36, 37 AND 218/81, SETON V COMMISSION, ( 1983 ) ECR 1789 ). IT APPEARS FROM THE PARTICULARS SUPPLIED DURING THE PROCEEDINGS THAT THE INTERNAL MEMORANDUM IN QUESTION DID NOT ALTER THE SCIENTIFIC NATURE OF THE DUTIES PERFORMED BY THE APPLICANTS WITHIN THEIR DIVISION . IT IS PART OF THE NORMAL EXERCISE OF AUTHORITY WITHIN AN ADMINISTRATION FOR A SUPERIOR TO ASSIGN, IN CONFORMITY WITH THE ABOVEMENTIONED PRINCIPLE, DUTIES TO OFFICIALS ON THE BASIS OF THEIR PARTICULAR APTITUDES ; MEASURES ADOPTED FOR THAT PURPOSE REQUIRE NO SPECIAL JUSTIFICATION .
47 IT IS APPARENT FROM AN EXAMINATION OF THE DOCUMENTS BEFORE THE COURT THAT THE POSITION OF THE TWO APPLICANTS UNDER THE STAFF REGULATIONS WAS NOT ADVERSELY AFFECTED BY THE MEASURES TAKEN BY THE HEAD OF DIVISION IN HIS INTERNAL MEMORANDUM OF 10 NOVEMBER 1982, WHEREBY HE ALTERED THE RESPONSIBILITIES WITHIN HIS DIVISION WITH RESPECT TO THE MANAGEMENT OF THE RESEARCH INSTRUMENT TO THE CONSTRUCTION OF WHICH THE APPLICANTS CONTRIBUTED .
48 THIS COMPLAINT MUST THEREFORE ALSO BE REJECTED .
49 IT FOLLOWS FROM THE FOREGOING THAT THE CLAIM FOR ANNULMENT MUST BE DISMISSED .
50 THE CLAIM FOR DAMAGES MADE IN THE ALTERNATIVE IS THEREFORE RENDERED PURPOSELESS .
Decision on costs
COSTS
51 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, ARTICLE 70 PROVIDES THAT, WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) CONCERNING COSTS WHICH THE COURT CONSIDERS TO HAVE BEEN UNREASONABLY OR VEXACIOUSLY CAUSED, IN STAFF CASES INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
52 THE COURT CONSIDERS THAT THE APPLICANTS CANNOT BENEFIT FROM THE PROVISIONS OF ARTICLE 70 BECAUSE OF THE, IN MANY RESPECTS, ABNORMAL AND ABUSIVE MANNER IN WHICH THEY HAVE CONDUCTED THE PROCEEDINGS . SUCH CONDUCT, WHICH IS UNACCEPTABLE IN THE RELATIONSHIP OF TRUST WHICH SHOULD EXIST WITHIN THE COMMUNITY ADMINISTRATION, MEANS THAT THE APPLICANTS MUST BE ORDERED TO PAY THE WHOLE OF THE COSTS, INCLUDING THOSE OF THE INTERIM PROCEEDINGS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2.ORDERS THE APPLICANTS TO PAY THE WHOLE OF THE COSTS, INCLUDING THOSE OF THE INTERIM PROCEEDINGS .