61982CJ0266_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 266/82
MARIETTE TURNER, NEE KRECKE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 213 AVENUE LOUISE, BRUSSELS, ASSISTED
AND REPRESENTED BY GEORGES VANDERSANDEN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . BIVER, 2 RUE
GOETHE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER, BERNARD PAULIN, 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
APPLICATION FOR ANNULMENT OF THE COMMISSION DECISION OF 20 OCTOBER 1981 COMPULSORILY TRANSFERRING THE APPLICANT TO DIVISION IX-A-6, SICKNESS INSURANCE AND BUILDING LOANS, AND FOR AN ORDER FOR THE PAYMENT TO THE APPLICANT OF BFR 250 000 AS COMPENSATION FOR THE NON-MATERIAL DAMAGE SUFFERED AS A RESULT OF THE CONTESTED DECISION,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 27 SEPTEMBER 1982 DR MARIETTE TURNER, NEE KRECKE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION DECISION OF 20 OCTOBER 1981 COMPULSORILY ASSIGNING HER TO DIVISION IX-A-6, SICKNESS INSURANCE AND BUILDING LOANS, AND FOR THE PAYMENT OF THE SUM OF BFR 250 000 AS COMPENSATION FOR THE NON-MATERIAL DAMAGE SUFFERED AS A RESULT OF THE CONTESTED DECISION .
2 IN SUPPORT OF HER ACTION DR TURNER PUTS FORWARD THREE SUBMISSIONS, NAMELY DISREGARD OF A JUDICIAL DECISION, TO BE EQUATED WITH A BREACH OF THE LAW, INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS AND MISUSE OF POWERS .
3 AS REGARDS THE FIRST SUBMISSION DR TURNER CONSIDERS THAT THE CONTESTED DECISION DISREGARDED THE JUDGMENT OF 9 JULY 1981 ( JOINED CASES 59 AND 129/80 TURNER V COMMISSION ( 1981 ) ECR 1883 ) IN WHICH THE COURT ANNULLED THE DECISION OF THE DIRECTOR GENERAL FOR PERSONNEL AND ADMINISTRATION OF THE COMMISSION OF 4 MAY 1979, ASSIGNING THE APPLICANT TO A DIFFERENT POST AS PART OF THE REORGANIZATION OF THE MEDICAL BRANCH, AND THE DECISION OF THE COMMISSION OF 20 MAY 1980 COMPULSORILY TRANSFERRING THE APPLICANT TO A POST IN DIRECTORATE GENERAL XII ( RESEARCH, SCIENCE AND EDUCATION ). FOLLOWING THE ANNULMENT OF THOSE DECISIONS THE APPLICANT WAS TO BE REGARDED FROM THE LEGAL POINT OF VIEW AS HAVING BEEN REASSIGNED TO THE DUTIES WHICH SHE PERFORMED PRIOR TO 4 MAY 1979, THAT IS TO SAY THE DUTIES OF PREVENTIVE MEDICINE PERFORMED AS PART OF THE MEDICAL DEPARTMENT .
4 DR TURNER COMPLAINS FIRST OF ALL THAT FROM 9 JULY TO 20 OCTOBER 1981 THE COMMISSION TOOK NO STEP TO COMPLY WITH THE JUDGMENT OF THE COURT BY RE-ASSIGNING THE APPLICANT TO HER PREVIOUS DUTIES AND MAINTAINS THAT THAT CONSTITUTES PATENT DISREGARD OF THE RETROACTIVE EFFECT OF THE JUDGMENT .
5 IN THAT RESPECT IT MUST BE OBSERVED THAT IT IS NOT NORMALLY POSSIBLE TO COMPLY IMMEDIATELY WITH A JUDGMENT ANNULLING A MEASURE, SINCE IT REQUIRES THE
ADOPTION OF A NUMBER OF ADMINISTRATIVE MEASURES . THE SECOND PARAGRAPH OF ARTICLE 34 OF THE ECSC TREATY HAS TAKEN ACCOUNT OF THOSE CIRCUMSTANCES BY EXPRESSLY ALLOWING THE HIGH AUTHORITY ' ' A REASONABLE TIME ' '
TO TAKE ' ' THE NECESSARY STEPS TO COMPLY WITH THE JUDGMENT ' ' . THE REASONS BEHIND THE SECOND PARAGRAPH OF ARTICLE 34 OF THE ECSC TREATY CONSTITUTE GROUNDS FOR ACCEPTING THAT THE COMMISSION ALSO HAS A ' ' REASONABLE TIME ' '
TO COMPLY WITH A JUDGMENT ANNULLING A DECISION TAKEN UNDER THE EEC TREATY EVEN IN THE ABSENCE OF AN EXPRESS PROVISION IN THE TREATY WITH REGARD THERETO .
6 IN THIS CASE, IN VIEW OF THE NATURE OF THE MEASURES TO BE TAKEN AND OTHER RELEVANT CIRCUMSTANCES SUCH AS THE SUMMER HOLIDAYS, THE ANNUAL LEAVE TAKEN BY THE APPLICANT FROM 1 TO 20 SEPTEMBER 1981 AND HER ABSENCES BY REASON OF SICKNESS DURING JULY AND AUGUST 1981, THE PERIOD OF A LITTLE MORE THAN THREE MONTHS WHICH ELAPSED BETWEEN THE DELIVERY OF THE JUDGMENT AND THE DECISION MAKING A FRESH ASSIGNMENT CANNOT BE REGARDED AS EXCESSIVE .
7 THE APPLICANT FURTHER CHALLENGES THE DECISION OF 20 OCTOBER 1981 ASSIGNING HER TO DIVISION IX-A-6, SICKNESS INSURANCE AND BUILDING LOANS, ON THE GROUND THAT IT IS A MEASURE INCOMPATIBLE WITH COMPLIANCE WITH THE AFORESAID JUDGMENT OF 9 JULY 1981 ACCORDING TO WHICH ' ' UNDER THE FIRST PARAGRAPH OF ARTICLE 176 OF THE EEC TREATY IT WILL BE THE DUTY OF THE ADMINISTRATION TO RECONSIDER THE APPLICANT ' S SITUATION IN THE LIGHT OF THE PRINCIPLES UNDERLYING THIS JUDGMENT AND TO ADOPT NEW MEASURES IN REGARD TO HER FUTURE POSTING ' ' .
8 AS APPEARS FROM THE JUDGMENT IN QUESTION THE NEW PROVISIONS TO BE ADOPTED BY THE ADMINISTRATION WERE TO TAKE ACCOUNT OF THE APPLICANT ' S TRAINING AND HER PREVIOUS EMPLOYMENT, THE DISTINGUISHING FEATURE OF WHICH WAS THAT THE APPLICANT HAD, FOR MOST OF HER CAREER, BEEN ASSIGNED TO DUTIES WHICH WERE APPROPRIATE TO HER OWN SPECIALIZED FIELD, A GOOD PART OF WHICH INVOLVED WORK RELATED TO THE PRACTICE OF MEDICINE . IT IS THEREFORE NECESSARY TO CHECK HOW FAR THE ASSIGNMENT MADE BY THE DECISION OF 20 OCTOBER 1981 OBSERVED THOSE CRITERIA .
9 THE CONTESTED DECISION ASSIGNED DR TURNER AS A MEDICAL OFFICER TO THE OFFICE RESPONSIBLE FOR SETTLING CLAIMS IN RESPECT OF SICKNESS INSURANCE . BECAUSE OF THE
VERY NATURE OF THE DUTIES INVOLVED, THAT POST IS NOT OPEN TO PERSONS WITH NO REAL MEDICAL TRAINING OR AT ANY RATE ONLY AN INCOMPLETE TRAINING IN THE FIELD OF MEDICINE . IN ENTRUSTING THOSE TASKS TO THE APPLICANT THE COMMISSION THUS TOOK INTO CONSIDERATION BOTH HER SPECIALIZED FIELD, THAT IS TO SAY HER MEDICAL TRAINING, AND HER PREVIOUS SERVICE . IN VIEW OF THE NATURE OF THE DUTIES ENTRUSTED TO MEDICAL OFFICIALS OF THE INSTITUTIONS IT IS NECESSARY FURTHER TO EMPHASIZE THAT NO COMPLAINT CAN BE MADE OF THE COMMISSION FOR NEGLECTING THE APPLICANT ' S SPECIALIZED TRAINING IN ONE OF THE BRANCHES OF MEDICINE .
10 IN VIEW OF THE FOREGOING CONSIDERATIONS THE FIRST SUBMISSION IN THE APPLICATION MUST BE REJECTED .
11 IN HER SECOND SUBMISSION WHICH RELATES TO THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS DR TURNER ALLEGES THAT THE STATEMENT OF THE REASONS ON WHICH THE CONTESTED DECISION IS BASED IS INSUFFICIENT OR WRONG IN SO FAR AS NO REASON IS GIVEN FOR THE FAILURE TO KEEP THE APPLICANT IN THE MEDICAL BRANCH, THAT THE IMPORTANCE OF THE MEDICAL CHECKS IN DIVISION IX-A-6 IS EXAGGERATED AND THAT FINALLY THE DECISION JUSTIFIES THE APPLICANT ' S NEW ASSIGNMENT BY REFERENCE TO THE INTERESTS OF THE SERVICE .
12 AS THE COMMISSION RIGHTLY OBSERVES, A DECISION ASSIGNING AN OFFICIAL TO A GIVEN POST SATISFIES THE REQUIREMENT TO STATE THE REASONS ON WHICH IT IS BASED WHEN IT MENTIONS THE REASONS FOR THE ASSIGNMENT WITHOUT ITS BEING NECESSARY TO STATE WHY THE OFFICIAL WAS NOT ASSIGNED TO ANOTHER POST OR KEPT IN HIS PREVIOUS POST . IT IS THEREFORE UNNECESSARY TO CONSIDER THE ARGUMENTS PUT FORWARD BY THE APPLICANT IN THAT RESPECT .
13 AS REGARDS THE ARGUMENT RELATING TO THE REFERENCE TO THE INTERESTS OF THE SERVICE IT MUST BE REMEMBERED THAT THE EXISTENCE OF THE INTERESTS OF THE SERVICE DEPENDS SOLELY ON THE QUESTION WHETHER THERE WERE OBJECTIVE REASONS JUSTIFYING A MEDICAL OFFICIAL ' S ASSIGNMENT TO DIVISION IX-A-6 .
14 IT IS THEREFORE NECESSARY ONLY TO CHECK WHETHER THE STATEMENT OF THE REASONS ON WHICH THE CONTESTED DECISION WAS BASED WAS CORRECT IN SO FAR AS IT REFERS TO THE NEED TO ASSIGN THE APPLICANT TO DIVISION IX-A-6 BECAUSE OF THE INCREASE IN THE MEDICAL DUTIES INVOLVED IN THE WORK OF THE OFFICE RESPONSIBLE FOR SETTLING CLAIMS .
15 THE PARTIES AGREE THAT THE NUMBER OF BENEFICIARIES UNDER THE COMMISSION ' S SICKNESS INSURANCE SCHEME ROSE FROM 27 000 IN 1978 TO 34 000 IN 1982 AND THAT THE TREND INVOLVED A PROPORTIONAL INCREASE IN THE FILES SUBMITTED TO THE SICKNESS INSURANCE OFFICE . DR TURNER HOWEVER DENIES THAT THAT INCREASE INVOLVED A WORK-LOAD EXCEEDING THE CAPACITY OF THE VISITING DOCTOR WORKING HALF-TIME, WHO WAS RESPONSIBLE FOR CARRYING OUT THE DUTIES OF MEDICAL OFFICER, AND THUS MADE NECESSARY THE APPLICANT ' S ASSIGNMENT TO THE OFFICE RESPONSIBLE FOR SETTLING CLAIMS .
16 IT IS COMMON GROUND THAT THE INCREASE IN THE NUMBER OF BENEFICIARIES MADE THE WORK-LOAD OF THE MEDICAL OFFICER INCREASINGLY HEAVY . ALTHOUGH IT IS TRUE THAT UNTIL 1978 THE DUTIES OF MEDICAL OFFICER COULD BE PERFORMED BY A DOCTOR WHO WAS ALSO RESPONSIBLE FOR CHECKING ABSENCES, FROM THEN ON IT WAS NECESSARY TO ENTRUST THAT WORK TO A VISITING DOCTOR, WORKING HALF-TIME, WHO WAS HOWEVER FACED WITH A CONTINUALLY INCREASING WORK-LOAD WHICH, ACCORDING TO THE COMMISSION, REQUIRED HIM TO DEVOTE FAR MORE THAN HALF HIS TIME TO THE WORK AND ALSO INVOLVED DELAYS IN DEALING WITH FILES .
17 IN VIEW OF THOSE CIRCUMSTANCES AND THE FACT THAT THE VISITING DOCTOR WAS DUE TO RETIRE AT THE BEGINNING OF 1983 THE COMMISSION WAS JUSTIFIED IN CONSIDERING THAT THE NATURE AND AMOUNT OF WORK IN DIVISION IX-A-6 REQUIRED THE ASSIGNMENT THERETO OF A FULL-TIME MEDICAL OFFICIAL . THE FACT THAT AFTER THE DEPARTURE OF THE VISITING DOCTOR WHO WORKED THERE BETWEEN 1978 AND 1983 A NEW VISITING DOCTOR WAS ENGAGED IN ADDITION TO THE APPLICANT, EVEN IF THERE WAS NO OBJECTIVE NECESSITY FOR THE APPOINTMENT, CANNOT ALTER THE ASSESSMENT OF THE SITUATION AS IT APPEARED ON 20 OCTOBER 1981 WHEN THE CONTESTED DECISION TO ASSIGN THE APPLICANT WAS TAKEN .
18 THE SECOND SUBMISSION MUST THEREFORE ALSO BE REJECTED .
19 FROM THE AFOREGOING CONSIDERATIONS IT IS APPARENT THAT THE THIRD SUBMISSION OF MISUSE OF POWERS IS ALSO UNFOUNDED SINCE THE CONTESTED DECISION WAS BASED ON OBJECTIVE CONSIDERATIONS .
Decision on costs
COSTS
20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .