61981CO0037_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 37/81 R
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 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 ITS LEGAL ADVISER, ORESTE MONTALTO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE SUSPENDING A DECISION OF THE COMMISSION REASSIGNING THE APPLICANT WITHIN DIRECTORATE-GENERAL VII, TRANSPORT,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 18 FEBRUARY 1981 MR SETON, AN OFFICIAL OF THE COMMISSION IN GRADE A 4, BROUGHT AN ACTION FOR THE ANNULMENT OF A DECISION REASSIGNING HIM WITHIN DIRECTORATE-GENERAL VII, TRANSPORT, HIS REINSTATEMENT TO DUTIES COMMENSURATE WITH HIS PREVIOUS POST AND DAMAGES OF BFR 1 MILLION, THAT AMOUNT BEING SUBJECT TO AMENDMENT DURING THE COURSE OF THE PROCEEDINGS .
2 BY APPLICATION OF THE SAME DATE FOR THE ADOPTION OF AN INTERIM MEASURE THE APPLICANT SEEKS UNDER ARTICLE 91 ( 4 ) OF THE STAFF REGULATIONS THE IMMEDIATE SUSPENSION OF THE MEASURES TAKEN AGAINST HIM WHEREBY HE WAS DEPRIVED OF HIS HEADSHIP OF A SPECIALIZED DEPARTMENT, REMOVED FROM THE PLACE IN WHICH HE CARRIED OUT HIS DUTIES AND MADE RESPONSIBLE TO THE HEAD OF THE DIVISION TO WHICH HE WAS TRANSFERRED .
3 IT APPEARS FROM THE PAPERS PLACED BEFORE THE COURT THAT AT ITS 575TH MEETING ON 8 OCTOBER 1980 THE COMMISSION DECIDED AS PART OF A REORGANIZATION OF THE DIRECTORATE-GENERAL FOR TRANSPORT TO ABOLISH ON 1 NOVEMBER 1980 THE SPECIALIZED DEPARTMENT VII A 4 ( HARMONIZATION OF SOCIAL LEGISLATION ) RUN BY THE APPLICANT IN HIS CAPACITY AS HEAD OF DEPARTMENT AND TO TRANSFER HIM TO DIVISION VII B 1 WHICH WAS THEN TO BE RESPONSIBLE FOR INTER ALIA THE TASKS PREVIOUSLY CARRIED OUT BY THE DEPARTMENT ABOLISHED .
4 THE APPLICANT, WHO WAS INFORMED ABOUT THOSE MEASURES BY HIS SUPERIORS, BY WAY OF A DEPARTMENTAL NOTE OF 23 OCTOBER 1980 FROM THE HEAD OF THE NEW DIVISION VII B 1 AND A MEMORANDUM FROM THE DIRECTOR-GENERAL FOR TRANSPORT OF 30 OCTOBER 1980, WAS ASKED TO TAKE UP HIS NEW DUTIES ON THE DATE FIXED BY THE COMMISSION .
5 BY A LETTER DATED 30 JANUARY 1981 THE DIRECTOR OF PERSONNEL INFORMED THE APPLICANT THAT IN PURSUANCE OF THE MEASURES TO REORGANIZE DIRECTORATE-GENERAL VII ADOPTED BY THE COMMISSION THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION HAD DECIDED TO TRANSFER HIM TO DIVISION VII B 1, ' ' MARKET POLICIES ; WORKING CONDITIONS ' '
AS FROM 1 NOVEMBER 1980 . THAT DECISION WAS CONFIRMED ON 9 FEBRUARY 1981 BY A LETTER SENT TO THE APPLICANT BY THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION .
6 IN HIS APPLICATION THE APPLICANT CONTENDS THAT THE EFFECT OF THE CONTESTED DECISION HAS BEEN TO LOWER HIS OFFICIAL STATUS, THAT IT HAS CAUSED THE LOSS OF HIS HEADSHIP OF DEPARTMENT, TAKEN AWAY HIS STAFF, AND MADE HIM ANSWERABLE TO A COLLEAGUE IN THE SAME GRADE THEREBY DEPRIVING HIM OF THE RESPONSIBILITY WHICH HE PREVIOUSLY HAD IN HIS OWN SPHERE OF ACTIVITY . HE FURTHER BELIEVES THAT THE MEASURE ADOPTED IN REGARD TO HIM IS A DISGUISED DISCIPLINARY MEASURE TAKEN BECAUSE HIS OPINIONS DIFFERED FROM THOSE OF HIS SUPERIORS ON VARIOUS ISSUES CONCERNING COMMUNITY TRANSPORT POLICY . FINALLY HE CONSIDERS THAT IN VIEW OF HIS AGE HIS ASSIGNMENT TO A NEW POST IS LIABLE TO PREJUDICE HIS CHANCES OF PROMOTION AND WILL CREATE A SITUATION IN WHICH IT WILL BE POSSIBLE TO REMOVE HIM FROM THE SERVICE OF THE COMMISSION WITHIN A SHORT WHILE .
7 THE COMMISSION CLAIMS THAT THE ABOLITION OF THE SPECIALIZED DEPARTMENT OF WHICH THE APPLICANT HAD PREVIOUSLY BEEN IN CHARGE AND THE APPLICANT ' S ASSIGNMENT TO A NEW POST ARE PART OF AN ADMINISTRATIVE REORGANIZATION AFFECTING VARIOUS DIRECTORATES-GENERAL, INCLUDING THE DIRECTORATE-GENERAL FOR TRANSPORT, WITH THE AIM OF REDUCING THE NUMBER OF ADMINISTRATIVE UNITS OF WHICH THEY ARE COMPOSED . DURING THAT REORGANIZATION NO LESS THAN 22 DIVISIONS AND 29 SPECIALIZED DEPARTMENTS WERE ABOLISHED, INCLUDING THE DEPARTMENT RUN BY THE APPLICANT WHICH IS NOW MERGED WITH FORMER DIVISION VI B 1 AND VII B 2 INTO THE NEW DIVISION VII B 1 . THE REORGANIZATION WAS PRECEDED BY EXTENSIVE CONSULTATIONS WITHIN THE DIRECTORATES-GENERAL CONCERNED IN WHICH THE APPLICANT PARTICIPATED .
8 IN THE COMMISSION ' S VIEW THE APPLICANT HAS NOT BEEN ABLE TO DEMONSTRATE THAT THERE IS CAUSE FOR URGENCY IN THIS CASE OR THAT THE CONTESTED MEASURE IS LIABLE TO CAUSE HIM ANY DAMAGE, MUCH LESS IRREPARABLE DAMAGE . THE DUTIES ASSIGNED TO HIM IN THE NEW DIVISION VII B 1 CORRESPOND WITH THE DESCRIPTION OF BASIC
POSTS CONTAINED IN THE COMMISSION DECISION PUBLISHED IN STAFF COURIER NO 272 OF 4 SEPTEMBER 1973 . IF THE APPLICATION WERE GRANTED THE APPLICANT WOULD RESUME HIS PREVIOUS DUTIES ; AS TO HIS CHANCES OF PROMOTION THEY ARE IN NO WAY AFFECTED BY THE CONTESTED MEASURE . ON THE OTHER HAND A SUPSENSION OF THE CONTESTED DECISION WOULD SERIOUSLY PREJUDICE THE INTERESTS OF THE SERVICE BY PUTTING IN QUESTION THE REORGANIZATION OF THE DIRECTORATE-GENERAL FOR TRANSPORT .
9 AS THE PARTIES HAVE ARGUED THEIR CASES IN FULL IN THEIR WRITTEN SUBMISSIONS AND SENT TO THE COURT ALL THE DOCUMENTS WHICH HAVE TO BE CONSIDERED IN ORDER TO DECIDE THE APPLICATION FOR AN INTERIM MEASURE, THE COURT DID NOT FEEL IT WAS NECESSARY TO UNDERTAKE ANY PREPARATORY INQUIRY OR TO GIVE THE PARTIES THE OPPORTUNITY TO PRESENT ORAL ARGUMENT .
DECISION
10 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE THE APPLICANT HAS TO ESTABLISH, FIRST, THE CIRCUMSTANCES GIVING RISE TO URGENCY AND, SECONDLY, THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURE APPLIED FOR .
11 IT IS NOT NECESSARY TO CONSIDER THE SECOND CONDITION CONTAINED IN THAT PROVISION AS IT IS SUFFICIENT TO POINT OUT THAT THE APPLICANT HAS NOT ADDUCED ANY EVIDENCE TO INDICATE THAT THE MEASURE SOUGHT IS REQUIRED AS A MATTER OF URGENCY .
12 IT APPEARS IN FACT FROM THE INFORMATION WHICH HAS BEEN PROVIDED SO FAR 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 .
13 THE APPLICATION TO SUSPEND THE CONTESTED DECISION SHOULD THEREFORE BE DISMISSED .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT OF THE SECOND CHAMBER, TAKING THE PLACE OF THE PRESIDENT OF THE COURT PURSUANT TO ARTICLE 96 ( 1 ) OF THE RULES OF PROCEDURE,
HEREBY ORDERS :
1 . THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE IS DISMISSED .
2 . THE COSTS ARE RESERVED .