61977CJ0034_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 34/77
JOZEF OSLIZLOK, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 18 LANDBOUWLAAN, OVERIJSE ( BELGIUM ), REPRESENTED AND ASSISTED BY MARCEL GREGOIRE AND EDMOND LEBRUN, ADVOCATES AT THE COUR D ' APPEL, BRUSSELS, 68 RUE CAMILLE LEMONNIER, 1060 BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIORGIO PINCHERLE, ACTING AS AGENT, ASSISTED BY DENISE SORASIO- ALLO, A MEMBER OF THE LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING,
DEFENDANT,
Subject of the case
APPLICATION, FIRST FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 21 JULY 1976 ADOPTED IN PURSUANCE OF ARTICLE 50 OF THE STAFF REGULATIONS, RETIRING THE APPLICANT FROM HIS POST AS DIRECTOR OF DIRECTORATE A OF DIRECTORATE GENERAL XVI, REGIONAL POLICY, AND DISMISSING HIM, SECONDLY, IN SO FAR AS IT MAY BE NECESSARY, FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 21 JULY 1976 REORGANIZING DIRECTORATE GENERAL XVI AND ADOPTING A NEW DETAILED LIST OF POSTS, AS WELL AS, THIRDLY, FOR THE ANNULMENT OF THE IMPLIED DECISION REJECTING HIS COMPLAINT LODGED ON 7 OCTOBER 1976,
Grounds
1THE APPLICATION SEEKS THE ANNULMENT OF THE DECISION OF THE COMMISSION OF 21 JULY 1976 RETIRING THE APPLICANT, AN OFFICIAL IN GRADE A 2, FROM HIS POST AS DIRECTOR OF DIRECTORATE A ( ANALYSIS, DOCUMENTATION AND OBJECTIVES ) OF DIRECTORATE GENERAL XVI ( REGIONAL POLICY ) OF THE COMMISSION AND, ON THE GROUND THAT HE WAS NOT ASSIGNED TO ANOTHER POST IN HIS CATEGORY CORRESPONDING TO HIS GRADE, AWARDING HIM THE ALLOWANCE PROVIDED FOR IN THE THIRD PARAGRAPH OF ARTICLE 50 OF THE STAFF REGULATIONS .
2IT ALSO SEEKS THE ANNULMENT, IN SO FAR AS MAY BE NECESSARY, OF THE COMMISSION ' S DECISION, ALSO DATED 21 JULY 1976, REORGANIZING THE DIRECTORATE GENERAL ( XVI ) FOR REGIONAL POLICY .
3AS REGARDS THE RETIREMENT AND DECISION NOT TO RE-ASSIGN HIM TO ANOTHER POST IN HIS GRADE, THE APPLICANT COMPLAINS FIRST OF AN INFRINGEMENT OF ARTICLE 50 OF THE STAFF REGULATIONS AND DISREGARD OF THE GENERAL PRINCIPLE OF RESPECT FOR THE RIGHTS OF THE DEFENCE, INASMUCH AS HE WAS NOT GIVEN ANY OPPORTUNITY BEFOREHAND TO SUBMIT HIS OBSERVATIONS ON THE INTENTION EXPRESSED BY THE APPOINTING AUTHORITY TO RETIRE HIM IN THE INTERESTS OF THE SERVICE .
4HE COMPLAINS, SECONDLY, OF AN INFRINGEMENT OF THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS, INASMUCH AS THE STATEMENT OF THE REASONS ON WHICH THE DECISIONS IN QUESTION WERE BASED WAS NOT SUFFICIENT TO COMPLY WITH THE LAW, OF AN INFRINGEMENT OF ARTICLE 50 OF THE STAFF REGULATIONS AND MISUSE OF POWERS, INASMUCH AS THE LATTER PROVISION WAS APPLIED TO HIM WITHOUT ITS BEING JUSTIFIED BY ANY CONSIDERATION BASED ON THE INTERESTS OF THE SERVICE .
5ALTHOUGH THE APPLICANT DOES NOT MAKE ANY SUBMISSION EXPRESSIS VERBIS AGAINST THE DECISION RELATING TO THE REORGANIZATION OF THE DIRECTORATE GENERAL FOR REGIONAL POLICY, IT APPEARS FROM THE ARGUMENTS PUT FORWARD IN SUPPORT OF THE THIRD SUBMISSION THAT IT IS ALSO DIRECTED AGAINST THAT DECISION, WHICH, HE ALLEGES, WAS ADOPTED ONLY IN ORDER TO PERMIT HIS EXCLUSION .
6THUS FORMULATED THAT SUBMISSION IS ADMISSIBLE ALSO AS REGARDS THE DECISION TO REORGANIZE DIRECTORATE GENERAL XVI, SINCE IT SEEKS TO SHOW THAT UNDER THE APPEARANCE OF A MEASURE OF REORGANIZATION OF THE OFFICE THAT DECISION WAS IN FACT AIMED AT REMOVING HIM FROM HIS POST .
7IT IS FIRST NECESSARY TO CONSIDER THE APPLICATION IN SO FAR AS IT IS DIRECTED AGAINST THE DECISION TO REORGANIZE DIRECTORATE GENERAL XVI .
( A ) THE REORGANIZATION OF THE DIRECTORATE GENERAL FOR REGIONAL POLICY
8UNTIL THE CONTESTED DECISIONS WERE ADOPTED, DIRECTORATE GENERAL XVI COMPRISED THREE DIRECTORATES, THAT IS : A ( ANALYSIS, DOCUMENTATION AND OBJECTIVES ), B ( CO-ORDINATION AND PROGRAMMES ) AND C ( DEVELOPMENT AND CONVERSION OPERATIONS ), THE FIRST OF WHICH WAS DIRECTED BY THE APPLICANT .
9IT APPEARS BOTH FROM THE FILE - AND IN PARTICULAR FROM THE MINUTES OF THE MEETING OF THE COMMISSION OF 15 JANUARY 1975 - AND FROM THE EXPLANATIONS GIVEN DURING THE ORAL PROCEDURE, IN PARTICULAR BY THE WITNESS R . RUGGIERO, FORMERLY DIRECTOR GENERAL OF DIRECTORATE GENERAL XVI, THAT THE COMMISSION DECIDED AS EARLY AS THE BEGINNING OF 1975 THAT THE ADVISABILITY OF THE REORGANIZATION OF THAT DIRECTORATE GENERAL WAS TO BE CONSIDERED .
10FURTHERMORE, IT MAY BE SEEN FROM THE MINUTES OF THE MEETING OF THE COMMISSION OF 30 JUNE 1976 THAT THE MEMBER OF COMMISSION RESPONSIBLE FOR REGIONAL POLICY INFORMED IT OF HIS INTENTIONS AS REGARDS THE REORGANIZATION OF THE DIRECTORATE GENERAL FOR REGIONAL POLICY AND THAT HE INDICATED THAT ' ' THIS REORGANIZATION REPRESENTS AN ATTEMPT TO PROFIT FROM THE EXPERIENCE OF THE EXPERIMENTAL PERIOD OF ONE YEAR WHICH HAS PASSED SINCE THE EFFECTIVE ESTABLISHMENT OF THE EUROPEAN REGIONAL DEVELOPMENT FUND . IT WILL SEEK IN PARTICULAR TO CONCENTRATE THE ACTIVITIES OF THE DIRECTORATE GENERAL INTO TWO DIRECTORATES INSTEAD OF THREE AND TO STRENGTHEN THE SECRETARIAT OF THE REGIONAL POLICY COMMITTEE ' ' .
11IN ADDITION, AN INTERNAL MEMORANDUM OF 16 JULY 1976 FROM THE PRESIDENT OF THE COMMISSION AND THE MEMBER RESPONSIBLE INDICATES THAT THE AIM OF COMBINING DIRECTORATES A AND B ' ' THE BETTER TO INTEGRATE THE TASKS OF CARRYING OUT STUDIES, ANALYSES OF REGIONAL DEVELOPMENT, PLANNING AND CO- OPERATION ' ', SINCE ' ' THE . . . ELABORATION OF AN ALL-EMBRACING REGIONAL STRATEGY ' '
DEPENDS ON THE COMPLETE INTERDEPENDENCE OF THOSE VARIOUS FUNCTIONS .
12FINALLY, ACCORDING TO THE EVIDENCE OF THE WITNESS R . RUGGIERO, FROM THE TIME THE EUROPEAN REGIONAL DEVELOPMENT FUND WAS SET UP IN MARCH 1975 ( REGULATION NO 724/75 OF THE COUNCIL OF 18 MARCH 1975, OFFICIAL JOURNAL NO L 73 OF 21 MARCH 1975, P . 1 ), IT BECAME NECESSARY TO ASSIGN TO IT A NUMBER OF OFFICIALS FROM DIRECTORATE A, WHICH HELPED TO JUSTIFY THE AMALGAMATION OF DIRECTORATES A AND B, BOTH OF WHICH WERE RESPONSIBLE FOR PLANNING AND CO- ORDINATION, WHILST DIRECTORATE C WAS ESSENTIALLY TO ASSUME RESPONSIBILITY FOR THE MANAGEMENT OF THE FUND .
13IT FOLLOWS FROM THOSE FACTORS THAT THE REORGANIZATION OF DIRECTORATE GENERAL XVI WAS INSPIRED BY CONSIDERATIONS BASED ON THE INTERESTS OF THE SERVICE, WITH THE RESULT THAT IN SO FAR AS THE APPLICATION REFERS TO THAT DECISION IT MUST BE DISMISSED .
( B ) THE DECISION TO RETIRE THE APPLICANT
14IN THE NORMAL COURSE OF EVENTS THE REDUCTION IN THE NUMBER OF DIRECTORS OF DIRECTORATE GENERAL XVI FROM THREE TO TWO WOULD NECESSARILY RESULT IN THE RETIREMENT OF ONE OF THEM .
15UNDER THE TERMS OF ARTICLE 50 OF THE STAFF REGULATIONS RETIREMENT IN THE INTERESTS OF THE SERVICE IS PROVIDED FOR ONLY IN RELATION TO OFFICIALS IN GRADES A 1 AND A 2, IT DOES NOT CONSTITUTE A DISCIPLINARY MEASURE AND - IF THE OFFICIAL CONCERNED IS NOT ASSIGNED TO ANOTHER POST - IT IS ACCOMPANIED BY THE GRANT OF ALLOWANCES DESIGNED TO PROTECT THE FINANCIAL POSITION OF THE OFFICIALS CONCERNED .
16THE POWER CONFERRED BY ARTICLE 50 MUST BE CONSIDERED IN THE LIGHT OF THE FACT UNDER THE TERMS OF ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS SUCH OFFICIALS MAY BE RECRUITED BY A PROCEDURE OTHER THAN THE COMPETITION PROCEDURE AND THAT UNDER ARTICLE 34 THEY ARE NOT REQUIRED TO SERVE A PROBATIONARY PERIOD .
17IT FOLLOWS THAT THE COMMISSION ENJOYS WIDE DISCRETIONARY POWERS AS REGARDS BOTH THE RECRUITMENT AND RETIREMENT OF SUCH OFFICIALS .
18SUCH POWERS ASSUME A CONSIDERABLE FREEDOM TO TAKE DECISIONS, AS REGARDS BOTH THE OBJECTIVE REQUIREMENTS OF THE SERVICE AND THE ASSESSMENT OF THE SPECIFIC QUALITIES OF THE OFFICIALS CONCERNED AND AT THE SAME TIME A SCRUPULOUS EXAMINATION OF THE RELEVANT FACTORS - WHICH CONSTITUTES THE GUARANTEE THAT THE SAID POWERS WILL BE EXERCISED IN FULL KNOWLEDGE OF THE FACTS .
19THE DEFENDANT OBSERVES THAT THE MINUTES OF THE MEETING OF 21 JULY 1976 SHOW THAT AFTER DECIDING ON THE REORGANIZATION OF DIRECTORATE GENERAL XVI THE COMMISSION PROCEEDED TO CARRY OUT ' ' A COMPARATIVE EXAMINATION OF THOSE OFFICIALS IN GRADE A 2 AND THE OFFICIAL IN GRADE A 1 ON A PERSONAL BASIS WHO HAD PREVIOUSLY BEEN ASSIGNED TO THE POSTS OF DIRECTOR AT THE DIRECTORATE GENERAL FOR REGIONAL POLICY IN RELATION TO THE REQUIREMENTS FOR PERFORMANCE OF THE DUTIES INVOLVED IN THE DIRECTION OF THE NEW ORGANIZATION ' '
AND THAT ' ' AFTER EXAMINING THE QUALIFICATIONS OF THOSE OFFICIALS ' '
IT DECIDED, ON THE PROPOSAL OF THE PRESIDENT OF THE COMMISSION AND OF THE COMMISSIONER RESPONSIBLE FOR DIRECTORATE GENERAL XVI AND ' ' HAVING REGARD TO THE DUTIES TO BE PERFORMED BY THE TWO DIRECTORATES RESULTING FROM THE REORGANIZATION OF DIRECTORATE GENERAL XVI ' ', TO EXCLUDE THE APPLICANT AND TO MAKE THE OTHER TWO DIRECTORS RESPONSIBLE FOR THE NEW DIRECTORATES A AND B .
20IT EMERGES CLEARLY FROM THE SAID MINUTES THAT THE QUALIFICATIONS OF THE OFFICIALS CONCERNED, WHOSE PERSONAL FILES WERE, MOREOVER, AT THE DISPOSAL OF THE MEMBERS OF THE COMMISSION, WERE EXAMINED AND THAT THE DECISION WHICH RESULTED IN THE EXCLUSION OF THE APPLICANT WAS ADOPTED FOLLOWING THAT COMPARATIVE CONSIDERATION .
21THUS THE CONDITION ATTACHING TO A CORRECT EXERCISE OF THE WIDE DISCRETIONARY POWER RESERVED TO THE COMMISSION IN THE MATTER HAS BEEN SATISFIED . HAVING REGARD TO THE NATURE OF THE POWER CONFERRED IN THAT MATTER BY ARTICLE 50 THE STATEMENT THAT THE COMPARATIVE QUALIFICATIONS OF THE VARIOUS OFFICIALS CONCERNED HAVE ACTUALLY BEEN EXAMINED SATISFIES THE REQUIREMENTS CONTAINED IN ARTICLE 190 OF THE TREATY AND THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS TO THE EFFECT THAT DECISIONS SHALL STATE THE REASONS ON WHICH THEY ARE BASED .
22IN FACT, IN THE CASES COVERED BY ARTICLE 50 OF THE STAFF REGULATIONS, SUCH REASONS ARE SUFFICIENT EVIDENCE THAT THE COMMISSION TOOK THE INTERESTS OF THE SERVICE INTO ACCOUNT AND IT CANNOT BE EXPECTED TO GO FURTHER AND GIVE PARTICULARS OF ITS ASSESSMENT OF THE APPLICANT IN COMPARISON WITH EACH OF THE OTHER OFFICIALS OF EQUAL RANK .
23THE SUBMISSION WITH REGARD TO THE INADEQUACY OF THE STATEMENT OF REASONS MUST THEREFORE BE DISMISSED .
24FURTHERMORE, THE FACT THAT ON 1 JULY 1976 THE PRESIDENT OF THE COMMISSION INFORMED ONLY THE APPLICANT AND NOT THE OTHER TWO DIRECTORS, THAT THE COMMISSION WAS CONSIDERING APPLYING ARTICLE 50 TO HIM WITHIN THE CONTEXT OF THE REORGANIZATION OF THE DIRECTORATE GENERAL, CANNOT IN THE CIRCUMSTANCES OF THE CASE CONSTITUTE SUFFICIENT EVIDENCE OF MISUSE OF POWERS, SINCE THE COMMISSION ADOPTED ITS FINAL DECISION ONLY AFTER EXAMINING THE COMPARATIVE MERITS OF THE OFFICIALS CONCERNED .
25THE SUBMISSION AS TO DISREGARD OF THE RIGHTS OF THE DEFENCE MUST ALSO BE DISMISSED, SINCE THE APPLICANT HAD BEEN WARNED BY A LETTER FROM THE PRESIDENT OF THE COMMISSION THAT THE LATTER CONTEMPLATED APPLYING ARTICLE 50 OF THE STAFF REGULATIONS TO HIM AND HAD HAD AN OPPORTUNITY TO SUBMIT HIS OBSERVATIONS .
26AN EXAMINATION OF HIS REPLY OF 12 JULY 1976 SHOWS THAT HE WAS SUFFICIENTLY INFORMED OF THE NATURE AND CONSEQUENCES OF THE MEASURE CONTEMPLATED TO PUT FORWARD EFFECTIVELY SUCH ARGUMENTS AS MIGHT PREVENT ITS ADOPTION AND IT IS ESTABLISHED THAT THE MEMBERS OF THE COMMISSION WERE AWARE OF HIS OBSERVATIONS BEFORE THEY ADOPTED THE CONTESTED DECISION .
( C ) THE COMMISSION ' S DECISION NOT TO ASSIGN THE APPLICANT TO ANOTHER POST
27ACCORDING TO THE THIRD PARAGRAPH OF ARTICLE 50 OF THE STAFF REGULATIONS, AN OFFICIAL WHO IS RETIRED IN THE INTERESTS OF THE SERVICE IS TO RECEIVE AN ALLOWANCE IF HE IS NOT ASSIGNED TO ANOTHER POST IN HIS CATEGORY AND GRADE .
28JUST AS IN THE CASE OF A DECISION TO RETIRE AN OFFICIAL THE COMMISSION ENJOYS WIDE DISCRETIONARY POWERS IN THE CASE OF A DECISION TO REASSIGN AN OFFICIAL TO ANOTHER POST IN THE SAME GRADE .
29HOWEVER, BY REASON OF THE CONSEQUENCES OF SUCH A DECISION FOR THE OFFICIAL CONCERNED A DECISION NOT TO REASSIGN HIM TO ANOTHER POST CANNOT FOLLOW AUTOMATICALLY FROM THE RETIREMENT DECISION ITSELF BUT MUST BE BASED ON APPROPRIATE CONSIDERATIONS .
30THE EXERCISE OF DISCRETIONARY POWER, HOWEVER WIDE, NEVERTHELESS REQUIRES THAT AN OFFICIAL CONCERNING WHOM A DECISION NOT TO REASSIGN HIM TO ANOTHER POST IN HIS GRADE IS CONTEMPLATED SHOULD FIRST HAVE AN OPPORTUNITY OF EFFECTIVELY DEFENDING HIS INTERESTS .
31ALTHOUGH THE LETTER OF 1 JULY 1976 WAS SUCH AS TO ENABLE THE APPLICANT TO EXPRESS HIS POINT OF VIEW EFFECTIVELY AS REGARDS THE DECISION TO RETIRE HIM, IT MADE NO MENTION OF THE POSSIBILITIES OF ANY REASSIGNMENT .
32IN HIS REPLY OF 12 JULY 1976 THE APPLICANT INDICATED THAT HE WAS READY ' ' TO CONSIDER THE POSSIBILITY OF ASSIGNMENT TO ANOTHER POST ' '
CORRESPONDING TO HIS GRADE AND QUALIFICATIONS AND THAT HE WAS NOT AWARE OF THE EXISTENCE OF ANY OBJECTIVE REASONS WHICH MIGHT JUSTIFY HIS DISMISSAL .
33IT APPEARS FROM THE MINUTES OF THE MEETING OF THE COMMISSION ON 21 JULY 1976 UNDER THE HEADING ' ' C . APPLICATION OF ARTICLE 50 OF THE STAFF REGULATIONS ' '
THAT IN ADDITION TO THE NEW POST OF CHIEF ADVISER PROVIDED FOR IN THE NEW DIRECTORATE A, AT LEAST THREE OTHER POSTS IN GRADE A 2 WERE EITHER VACANT OR ABOUT TO BECOME SO IN OTHER DIRECTORATES GENERAL .
34THE COMMISSION DECIDED THAT IT WAS NOT APPROPRIATE TO ASSIGN MR OSLIZLOK TO ANOTHER POST IN ANY OF ITS DEPARTMENTS WITHOUT HIS HAVING BEEN GIVEN AN OPPORTUNITY OF EFFECTIVELY DEFENDING HIS INTERESTS IN THAT RESPECT .
35BY NEGLECTING TO GIVE THE OFFICIAL CONCERNED THE OPPORTUNITY OF MAKING HIS VIEWS KNOWN ON THAT SUBJECT THE COMMISSION FAILED TO RESPECT THE GUARANTEES WHICH MUST BE OFFERED TO OFFICIALS IN THE CASE OF THE FINAL ABOLITION OF A POST AFTER RETIREMENT UNDER ARTICLE 50 OF THE STAFF REGULATIONS AND IT MUST THEREFORE RECONSIDER HIS CASE .
36THE CONTESTED DECISION MUST THEREFORE BE ANNULLED IN SO FAR AS IT DECIDED THAT IT WAS NOT APPROPRIATE TO REASSIGN THE APPLICANT TO ANOTHER POST IN HIS CATEGORY CORRESPONDING TO HIS GRADE .
37IT WILL BE FOR THE COMMISSION TO ADOPT THE MEASURES NECESSARY FOR THE ENFORCEMENT OF THIS JUDGMENT, IN PARTICULAR BY ALLOWING THE APPLICANT THE OPPORTUNITY OF EFFECTIVELY DEFENDING HIS INTERESTS IN THAT RESPECT BEFORE DECIDING WHETHER OR NOT IT IS APPROPRIATE TO REASSIGN HIM TO ANOTHER POST .
Decision on costs
COSTS
38UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
39AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE COMMISSION ' S DECISION OF 21 JULY 1976 RELATING TO THE APPLICATION OF ARTICLE 50 OF THE STAFF REGULATIONS IN SO FAR AS IT DETERMINED THAT THE APPLICANT SHOULD NOT BE ASSIGNED TO ANOTHER POST IN HIS CATEGORY CORRESPONDING TO HIS GRADE ;
2 . ORDERS THE COMMISSION TO PAY THE COSTS .