61987CJ0019_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 19/87
ANDRE HECQ, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT BONLEZ ( BELGIUM ), REPRESENTED BY JACQUES PUTZEYS AND XAVIER LEURQUIN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF G . NICKTS, 87 AVENUE GUILLAUME,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MARIE WOLFCARIUS, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF A NUMBER OF COMMISSION DECISIONS CONCERNING THE TRANSFER OF THE APPLICANT WITHIN THE BUILDINGS AND EQUIPMENT MANAGEMENT DEPARTMENT AND DEFINING HIS NEW DUTIES,
THE COURT ( FOURTH CHAMBER )
COMPOSED OF : G . C . RODRIGUEZ IGLESIAS, PRESIDENT OF CHAMBER, T . KOOPMANS AND C . KAKOURIS, JUDGES,
ADVOCATE GENERAL : J . MISCHO
REGISTRAR : H . A . ROEHL, PRINCIPAL ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 9 FEBRUARY 1988,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 8 MARCH 1988,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 26 JANUARY 1986 ANDRE HECQ, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN GRADE B 3, BROUGHT AN ACTION FOR THE ANNULMENT OF DECISIONS CONCERNING HIS REASSIGNMENT WITHIN THE BUILDINGS AND EQUIPMENT MANAGEMENT DEPARTMENT AND FOR AN ORDER THAT HE BE REINSTATED IN ALL HIS RIGHTS UNDER THE STAFF REGULATIONS AS THEY STOOD BEFORE 1 FEBRUARY 1986 .
2 THE DECISIONS WHOSE ANNULMENT IS REQUESTED ARE THE FOLLOWING :
( I ) DECISION OF THE DIRECTOR FOR ADMINISTRATION CONTAINED IN A MEMORANDUM OF 3 JANUARY 1986 TO THE EFFECT THAT THE APPLICANT SHOULD IN PRINCIPLE BE "REMOVED" FROM THE BUILDINGS SECTOR AND BE GIVEN RESPONSIBILITY FOR HEATING AND SANITATION IN THE NEW BUILDINGS OCCUPIED OR TO BE OCCUPIED BY THE COMMISSION FROM DECEMBER 1984;
( II ) DECISION OF THE HEAD OF THE BUILDINGS AND EQUIPMENT MANAGEMENT SPECIALIZED DEPARTMENT OF 23 JANUARY 1986 IMPLEMENTING THE DECISION OF 3 JANUARY 1986 AND LISTING THE APPLICANT' S NEW DUTIES;
( III ) DECISION OF THE DIRECTOR FOR ADMINISTRATION CONTAINED IN A MEMORANDUM OF 5 MARCH 1986 LISTING THE BUILDINGS FOR WHICH THE APPLICANT WAS TO BE RESPONSIBLE AS REGARDS HEATING AND SANITATION AND STATING WHO WAS TO BE HIS IMMEDIATE SUPERIOR;
( IV ) DECISION OF THE COMMISSION OF 27 OCTOBER 1986 WHICH WAS COMMUNICATED TO THE APPLICANT BY LETTER OF 30 OCTOBER 1986 AND BY WHICH THE COMMISSION REJECTED HIS COMPLAINT OF 2 APRIL 1986 .
3 THE DECISIONS OF JANUARY 1986 WERE ADOPTED AFTER A NUMBER OF MEMORANDA EXCHANGED WITHIN THE DEPARTMENT CONCERNED, IN PARTICULAR BETWEEN THE APPLICANT AND HIS IMMEDIATE SUPERIORS, WERE COMMUNICATED TO THE DIRECTOR FOR ADMINISTRATION . THE LATTER REACHED THE CONCLUSION, "WITH SOME REGRET", THAT CONSIDERABLE TIME HAD BEEN WASTED IN THE EXCHANGE OF MEMORANDA, WHICH SHOULD BE TERMINATED IMMEDIATELY . FOR THAT REASON HE REQUESTED THE HEAD OF DEPARTMENT TO SUBMIT TO HIM A PROPOSAL FOR THE "REMOVAL" OF THE APPLICANT FROM THE SECTION IN WHICH HE WAS WORKING IN ORDER TO GIVE HIM NEW DUTIES .
4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE BACKGROUND TO THE DISPUTE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
5 THE FIRST SUBMISSION ALLEGES INFRINGEMENT OF ARTICLES 5 AND 7 OF THE STAFF REGULATIONS AND A BREACH OF THE PRINCIPLE OF EQUAL TREATMENT . IN SUPPORT OF THIS SUBMISSION, THE APPLICANT CLAIMS THAT HIS NEW DUTIES DO NOT CORRESPOND TO HIS GRADE . IN CARRYING OUT HIS NEW FUNCTIONS, HE HAS TO WORK ALONE, EXCLUSIVELY IN THE COMMISSION' S NEW BUILDINGS AND IN TWO SECTORS AT THE SAME TIME, NAMELY HEATING AND SANITATION, WHEREAS HIS COLLEAGUES ARE STILL WORKING AS A TEAM, EXCLUSIVELY IN THE OLD COMMISSION BUILDINGS AND IN A SINGLE SECTION, EITHER HEATING OR SANITATION .
6 IN THAT REGARD IT MUST BE POINTED OUT THAT IN ITS JUDGMENTS THE COURT HAS HELD THAT THE COMMUNITY INSTITUTIONS HAVE A BROAD DISCRETION TO ORGANIZE THEIR DEPARTMENTS TO SUIT THE TASKS ENTRUSTED TO THEM AND TO ASSIGN STAFF AVAILABLE TO THEM IN THE LIGHT OF SUCH TASKS, ON CONDITION HOWEVER THAT THE STAFF ARE ASSIGNED IN THE INTERESTS OF THE SERVICE AND IN CONFORMITY WITH THE PRINCIPLE OF ASSIGNMENT TO AN EQUIVALENT POST ( JUDGMENT OF 23 JUNE 1984 IN CASE 69/83 LUX V COURT OF AUDITORS (( 1984 )) ECR 2447 ).
7 IT IS CLEAR FROM ARTICLES 5 AND 7 OF THE STAFF REGULATIONS THAT AN OFFICIAL HAS THE RIGHT TO EXPECT THAT THE DUTIES WHICH ARE ASSIGNED TO HIM SHOULD AS A WHOLE BE IN KEEPING WITH THE POST WHICH CORRESPONDS TO THE GRADE WHICH HE OCCUPIES IN THE SCALE OF POSTS . HOWEVER, FOR A MEASURE FOR THE REORGANIZATION OF DEPARTMENTS TO AFFECT THAT RIGHT ADVERSELY, IT IS NOT SUFFICIENT THAT IT SHOULD BRING ABOUT A CHANGE IN OR EVEN ANY DIMINUTION OF THE OFFICIAL' S RESPONSIBILITIES, BUT IT IS NECESSARY THAT, TAKEN TOGETHER, HIS NEW RESPONSIBILITIES SHOULD FALL CLEARLY SHORT OF THOSE CORRESPONDING TO HIS GRADE AND POST, TAKING ACCOUNT OF THEIR CHARACTER, THEIR IMPORTANCE AND THEIR SCOPE .
8 IN ORDER TO EXAMINE WHETHER THE APPLICANT' S RIGHTS HAVE BEEN DISREGARDED BY THE DECISIONS BY WHICH NEW RESPONSIBILITIES WERE ASSIGNED TO HIM, IT IS THEREFORE NECESSARY TO COMPARE THOSE RESPONSIBILITIES TO HIS GRADE AND POST . CONSEQUENTLY, THE SUBMISSION BASED ON A COMPARISON BETWEEN THE APPLICANT' S PRESENT DUTIES AND HIS PREVIOUS DUTIES IS OF NO RELEVANCE .
9 THE APPLICANT WAS APPOINTED TO THE POST OF A SENIOR TECHNICAL ASSISTANT IN GRADE B 3 BY PROMOTION IN 1984, ALTHOUGH HE WAS STILL ASSIGNED TO THE BUILDINGS AND EQUIPMENT MANAGEMENT SPECIALIZED DEPARTMENT, WHERE HE HAD BEEN WORKING SINCE 1982 . THE DUTIES OF A SENIOR TECHNICAL ASSISTANT IN GRADE B 2 OR B 3 ARE DESCRIBED IN THE COMMISSION DECISION DEFINING THE DUTIES AND POWERS ATTACHING TO THE BASIC POSTS PROVIDED FOR IN ARTICLE 5 ( 4 ) OF THE STAFF REGULATIONS ( DECISION OF 28 MAY 1973, AS SUBSEQUENTLY AMENDED AND PUBLISHED IN THE STAFF NOTICES IA NO 373 OF 9 JULY 1982 ) AS FOLLOWS :
"B 2 - B 3 : SENIOR ADMINISTRATIVE ASSISTANT - OFFICIAL
IN CHARGE OF A SECTION OF AN ADMINISTRATIVE UNIT;
ENGAGED IN ADMINISTRATIVE TASKS INVOLVING, WHERE APPROPRIATE, THE INTERPRETATION OF REGULATIONS AND GENERAL INSTRUCTIONS;
ENGAGED IN CARRYING OUT DIFFICULT AND COMPLEX TASKS IN THE LIGHT OF GENERAL DIRECTIVES ."
10
THE APPLICANT CLAIMS IN PARTICULAR THAT ACCORDING TO THAT DESCRIPTION THE COMMISSION WAS OBLIGED TO PUT ITS SENIOR TECHNICAL ASSISTANTS IN CHARGE OF A SECTION OF AN ADMINISTRATIVE UNIT, WHICH IT DID NOT DO IN HIS CASE . BY FAILING TO PUT HIM IN CHARGE OF SUCH A SECTION, IT ASSIGNED HIM TO A POST LOWER THAN HIS GRADE .
11 ON THIS POINT, THE APPLICANT ASSUMES THAT A PERSON WHO "IS IN CHARGE OF A SECTION OF AN ADMINISTRATIVE UNIT" MUST NECESSARILY HAVE PERSONS WORKING UNDER HIS ORDERS OR COORDINATE THE WORK OF A TEAM OF TECHNICIANS . THAT, HOWEVER, IS NOT THE CASE . THE ADMINISTRATIVE UNIT TO WHICH THE APPLICANT IS ASSIGNED IS RESPONSIBLE FOR THE GOOD WORKING CONDITION OF THE BUILDINGS OCCUPIED BY THE COMMISSION' S DEPARTMENTS . IN THE FRAMEWORK OF THESE DUTIES, THE APPLICANT IS RESPONSIBLE FOR ONLY SOME OF THOSE BUILDINGS . IN SUCH A SITUATION, HE MAY BE REGARDED AS BEING IN CHARGE OF A SECTION OF THE UNIT TO WHICH HE BELONGS EVEN THOUGH HE IS THE ONLY OFFICIAL RESPONSIBLE FOR THE CONDITION OF CERTAIN BUILDINGS .
12 THE APPLICANT ALSO ALLEGES THAT THE CONTESTED DECISIONS ARE CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT INASMUCH AS THEY TREAT HIM UNFAVOURABLY AS COMPARED WITH HIS FORMER COLLEAGUES, WHO ARE NOT OBLIGED TO WORK IN TWO SECTORS AT ONCE, NAMELY HEATING AND SANITATION, AND WHO DO NOT WORK EXCLUSIVELY IN NEW BUILDINGS THE MAINTENANCE OF WHICH IS FAR MORE COMPLICATED BECAUSE OF THE RUNNING-IN OF EQUIPMENT .
13 THIS ARGUMENT IS UNFOUNDED . THE APPLICANT CANNOT CLAIM DUTIES COMPARABLE TO THOSE OF HIS FORMER COLLEAGUES, WHO ARE IN A GRADE LOWER THAN HIS, TWO BEING IN GRADE B 4 AND FOUR IN CATEGORY D . IN PARTICULAR, HE CANNOT COMPLAIN THAT HIS DUTIES ARE MORE COMPLEX THAN THEIRS .
14 THE FIRST SUBMISSIONS MUST THEREFORE BE REJECTED .
15 THE SECOND SUBMISSION ALLEGES THE BREACH OF THE GENERAL PRINCIPLE OF GOOD ADMINISTRATION AND OF THE ADMINISTRATION' S DUTY TO HAVE REGARD TO THE INTERESTS OF OFFICIALS, AS WELL AS ULTRA VIRES, SINCE THE CONTESTED MEASURES WERE DECIDED WITHOUT TAKING INTO ACCOUNT THE INTERESTS OF THE APPLICANT, WHO DID NOT HAVE AN OPPORTUNITY OF PUTTING FORWARD HIS POINT OF VIEW IN ADVANCE . FURTHERMORE, THE MEASURES DID NOT ENABLE THE APPLICANT TO UNDERSTAND THE REASONS FOR WHICH THEY WERE ADOPTED .
16 AS REGARDS THE COMPLAINT THAT THE CONTESTED MEASURES ARE INADEQUATELY REASONED, IT SHOULD BE BORNE IN MIND, ACCORDING TO THE CASE-LAW OF THE COURT ( SEE IN PARTICULAR JUDGMENT OF 29 OCTOBER 1981 IN CASE 125/80 ARNING V COMMISSION (( 1981 )) ECR 2539 ), IN ORDER TO DECIDE WHETHER THE REQUIREMENT OF A STATEMENT OF REASONS LAID DOWN IN THE STAFF REGULATIONS HAS BEEN MET, IT IS NECESSARY TO TAKE INTO CONSIDERATION NOT ONLY THE DOCUMENTS GIVING NOTICE OF THE DECISION BUT ALSO THE CIRCUMSTANCES IN WHICH IT WAS TAKEN AND BROUGHT TO THE KNOWLEDGE OF THE PERSON CONCERNED . IN THAT REGARD, IT IS NECESSARY TO CONSIDER IN PARTICULAR WHETHER THE APPLICANT WAS ALREADY IN POSSESSION OF THE INFORMATION ON WHICH THE COMMISSION BASED ITS DECISION .
17 THE LETTER FROM MR PRATLEY, DIRECTOR FOR ADMINISTRATION, DATED 3 JANUARY 1986, WHICH PROMPTED THE MEASURES OF WHICH THE APPLICANT COMPLAINS, STATES THAT THE EXCHANGE OF MEMORANDA BETWEEN THE APPLICANT, THE HEAD OF SECTOR AND THE HEAD OF DEPARTMENT MUST CEASE . THE APPLICANT RECEIVED A COPY OF THAT LETTER . HE HAD HIMSELF WRITTEN A SUBSTANTIAL NUMBER OF THE INCREASINGLY ACRIMONIOUS MEMORANDA, WHICH HAD BEEN EXCHANGED SINCE OCTOBER 1984 . HE HAD ALSO RECEIVED A COPY OF THE MEMORANDA WRITTEN TO THE HEAD OF DEPARTMENT BY OTHER OFFICIALS IN THE SECTION TO WHICH HE BELONGED, IN WHICH THEY REQUESTED THAT HE BE TRANSFERRED TO ANOTHER SECTION .
18 IN THOSE CIRCUMSTANCES THE APPLICANT CANNOT CLAIM THAT HE WAS UNAWARE OF THE CIRCUMSTANCES SURROUNDING THE DETERIORATION IN THE WORKING ATMOSPHERE IN HIS SECTION OR THE DIRECTOR FOR ADMINISTRATION' S WISH TO TERMINATE THIS STATE OF AFFAIRS BY ASSIGNING HIM NEW DUTIES . THE COMPLAINT BASED ON AN INADEQUATE STATEMENT OF REASONS IS THEREFORE UNFOUNDED .
19 AS REGARDS THE COMPLAINT THAT THE APPOINTING AUTHORITY DID NOT GIVE THE APPLICANT A HEARING, IT SHOULD BE STATED FIRST OF ALL THAT IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT A SERIES OF INTERVIEWS TOOK PLACE BETWEEN THE APPLICANT AND HIS IMMEDIATE SUPERIORS BEFORE 3 JANUARY 1986, THE DATE OF THE FIRST LETTER FROM MR PRATLEY . HOWEVER, NO SPECIFIC MEASURE TO DEAL WITH THE EXISTING DIFFICULTIES WAS DISCUSSED IN THE COURSE OF THOSE CONVERSATIONS . IT IS ALSO NOT IN DISPUTE THAT THE APPLICANT WAS NOT INTERVIEWED BETWEEN 3 JANUARY AND 23 JANUARY, WHEN THE HEAD OF DEPARTMENT ADOPTED THE DECISION TO REORGANIZE THE DEPARTMENT IN THE HEATING AND SANITATION SECTOR . HOWEVER, THE APPLICANT WAS INTERVIEWED BY MR PRATLEY BETWEEN 23 JANUARY AND 5 MARCH, THE DATE ON WHICH THE DIRECTOR-GENERAL INFORMED HIM OF THE BUILDINGS FOR WHICH HE WAS TO BE RESPONSIBLE . THE LETTER OF 5 MARCH ALSO CONFIRMS THE DECISION TAKEN IN PRINCIPLE ON 3 JANUARY AND THE REORGANIZATION MEASURES OF 23 JANUARY . IT IS CLEAR IN PARTICULAR FROM A LETTER ADDRESSED BY THE APPLICANT TO MR PRATLEY ON 11 MARCH 1986 THAT HE DISCUSSED THE DESCRIPTION OF HIS NEW FUNCTIONS WITH MR PRATLEY ON 21 FEBRUARY 1986 .
20 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANT HAD THE OPPORTUNITY TO PUT FORWARD HIS POINT OF VIEW BEFORE THE REORGANIZATION MEASURES WERE FINALIZED . FURTHERMORE, IT IS CLEAR FROM THE CASE-LAW OF THE COURT THAT ALTHOUGH THE STAFF REGULATIONS CONTAIN PRECISE GUARANTEES OF OFFICIALS' RIGHTS UNDER THEM, THE ADMINISTRATION OF THE COMMUNITY INSTITUTIONS IS NOT UNDER ANY DUTY TO SEEK THE INDIVIDUAL VIEWS OF OFFICIALS ON MEASURES OF REORGANIZATION WHICH MAY AFFECT THEIR POSITION .
21 THE SECOND SUBMISSION MUST THEREFORE BE REJECTED .
22 IN HIS THIRD SUBMISSION, THE APPLICANT CLAIMS THAT THE COMMISSION INFRINGED ARTICLE 87 OF AND ANNEX IX TO THE STAFF REGULATIONS AND MISUSED ITS POWERS INASMUCH AS THE CONTESTED MEASURES WERE DESIGNED TO IMPOSE ON THE APPLICANT A DISGUISED DISCIPLINARY MEASURE BY REDUCING HIS DUTIES AND THE REMUNERATION WHICH HE ACTUALLY RECEIVED UNDER THE STAND-BY ALLOWANCE SYSTEM .
23 IN CONNECTION WITH THAT SUBMISSION, THE APPLICANT HAS CLAIMED THAT HE WAS ELECTED AS A TRADE-UNION REPRESENTATIVE BY THE STAFF BUT HE HAS ADDUCED NO EVIDENCE OF ANY LINK BETWEEN THAT CIRCUMSTANCE AND THE MEASURES OF WHICH HE COMPLAINS .
24 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE CONTESTED MEASURES DID NOT REDUCE THE APPLICANT' S DUTIES . IN THAT CONNECTION THE COMMISSION RIGHTLY STRESSED THAT THE ALLOCATION OF NEW DUTIES TO THE APPLICANT WAS SIMPLY A REASSIGNMENT DECIDED UPON IN THE INTERESTS OF THE SERVICE .
25 THE COMPLAINT THAT THE APPLICANT' S REMUNERATION WAS REDUCED IS BASED ON THE APPLICANT' S LOSS OF THE ALLOWANCE FOR STAND-BY DUTY WHEN HE GAVE UP HIS FORMER DUTIES . IN THAT REGARD IT IS SUFFICIENT TO STATE THAT THAT ALLOWANCE IS INTENDED TO COMPENSATE OFFICIALS FOR BEING OBLIGED TO REMAIN AT THE DISPOSAL OF THE INSTITUTION AND THEREFORE IT DOES NOT FORM PART OF THE SALARY ATTACHING TO THE OFFICIAL' S GRADE AND STEP . FURTHERMORE, AN OFFICIAL HAS NO RIGHT TO OCCUPY A POST THE HOLDER OF WHICH IS REGULARLY ON STAND-BY DUTY OUTSIDE NORMAL WORKING HOURS .
26 NO OTHER ARGUMENT CAPABLE OF ESTABLISHING A MISUSE OF POWERS HAS BEEN PUT FORWARD BY THE APPLICANT . CONSEQUENTLY, THE THIRD SUBMISSION CANNOT BE UPHELD .
27 THE APPLICATION MUST THEREFORE BE DISMISSED IN ITS ENTIRETY .
Decision on costs
COSTS
28 UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS, WITHOUT PREJUDICE TO THE PROVISIONS OF THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ), CONCERNING COSTS WHICH THE COURT CONSIDERS A PARTY TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR .
29 THE COMMISSION HAS REQUESTED THE COURT TO APPLY THE LATTER PROVISION . IT CONSIDERS THAT THIS APPLICATION IS VEXATIOUS BECAUSE THE APPLICANT WAS HIMSELF THE CAUSE OF THE REORGANIZATION MEASURE OF WHICH HE COMPLAINS .
30 IT IS NOT APPROPRIATE TO ALLOW THAT REQUEST . THE COURT CONSIDERS IN PARTICULAR THAT THE DOCUMENTS AND INFORMATION AT ITS DISPOSAL DO NOT ENABLE IT TO DETERMINE WHO WAS RESPONSIBLE FOR THE DETERIORATION IN THE WORKING ATMOSPHERE WHICH WAS THE CAUSE OF THE REORGANIZATION OF THE SERVICE IN QUESTION .
Operative part
ON THOSE GROUNDS,
THE COURT ( FOURTH CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION;
( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .