61979CJ0791_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 791/79
RENE DEMONT, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 113, RUE DES PALMIERS, BRUSSELS, REPRESENTED BY JACQUES PUTZEYS AND XAVIER LEURQUIN, BOTH OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR NICKTS, HUISSIER DE JUSTICE, 17, BOULEVARD ROYAL,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY DENISE SORASIO, 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, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG .
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF 10 NOVEMBER 1978 BY WHICH THE COMMISSION TRANSFERRED THE APPLICANT FROM SANTIAGO, CHILE, TO BRUSSELS BY ASSIGNING HIM WITH EFFECT FROM 1 JANUARY 1979 TO THE SPECIALIZED DEPARTMENT FOR GENERALIZED TARIFF PREFERENCES IN DIRECTORATE E-2 OF DIRECTORATE-GENERAL I, AND OF THE EXPRESS DECISION REJECTING THE COMPLAINT THROUGH OFFICIAL CHANNELS LODGED BY THE APPLICANT AGAINST THAT DECISION,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 5 NOVEMBER 1979, RENE DEMONT, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION, DATED 10 NOVEMBER 1978, CHANGING THE ASSIGNMENT AND THE PLACE OF WORK OF THE APPLICANT, AND OF THE REJECTION BY THE COMMISSION OF THE COMPLAINT LODGED AGAINST THAT DECISION .
2 IT IS CLEAR FROM THE DOCUMENTS IN THE CASE THAT THE APPLICANT, WHO WAS ASSIGNED AS FROM 1 AUGUST 1973 TO THE OFFICE OF THE DELEGATION OF THE COMMISSION FOR LATIN AMERICA IN SANTIAGO, CHILE, WITHIN THE DIRECTORATE-GENERAL FOR EXTERNAL RELATIONS, WAS REASSIGNED TO BRUSSELS, BY DECISION OF THE COMMISSION DATED 10 NOVEMBER 1978, TO THE SPECIALIZED DEPARTMENT DIRECTORATE E-2 OF THAT DIRECTORATE-GENERAL, DEALING WITH GENERALIZED TARIFF PREFERENCES .
3 THE DECISION TO REASSIGN THE APPLICANT TO HEADQUARTERS IN BRUSSELS WAS TAKEN IN THE CONTEXT OF COMMUNITY RULES RELATING TO THE ROTATION SYSTEM IN RESPECT OF OFFICIALS ASSIGNED TO NON-MEMBER COUNTRIES . PURSUANT TO THOSE RULES, LAID DOWN IN PARTICULAR BY DECISIONS OF THE COMMISSION DATED 23 JULY 1975 AND 24 NOVEMBER 1976, THE NORMAL DURATION OF THE ASSIGNMENT OF SUCH OFFICIALS IS FIXED, IN PRINCIPLE, AT THREE YEARS, WHICH MAY BE EXTENDED IN THE INTEREST OF THE SERVICE FROM YEAR TO YEAR TO A MAXIMUM DURATION OF SIX YEARS . THE LIST OF OFFICIALS TO BE INCLUDED IN THE ROTATION SYSTEM IS DRAWN UP BY AN AD HOC COMMITTEE AND THE DEFINITIVE LIST OF ASSIGNMENTS IS THEN DETERMINED BY THE COMMISSION .
4 WITHIN THE FRAMEWORK OF THAT SYSTEM, THE ROTATION COMMITTEE, AT ITS MEETING ON 5 DECEMBER 1977, ENTERED THE APPLICANT ' S NAME ON THE ' ' SUGGESTED LIST ' '
OF OFFICIALS WHO MIGHT BE INCLUDED IN THE SECOND ROTATION IN RESPECT OF 1978/79 AND ENVISAGED THAT THE APPLICANT ' S REASSIGNMENT WOULD ' ' ONLY BE POSSIBLE IN 1979 ' ' . ON 12 APRIL 1978, THE COMMISSION FORMALLY ASSIGNED TO THE APPLICANT AS FROM 15 APRIL 1978 RESPONSIBILITY FOR THE BRANCH OFFICE IN SANTIAGO AND THEN, ON 26 . APRIL 1978, IT DETERMINED ' ' THE DEFINITIVE LIST ' '
OF STAFF TRANSFERS FOR 1979 . THE APPLICANT ' S NAME APPEARED ON THAT LIST .
5 BY TELEX MESSAGE DATED 20 JULY 1978, THE DIRECTOR-GENERAL OF THE DIRECTORATE-GENERAL FOR EXTERNAL RELATIONS BROUGHT THAT DECISION TO MR DEMONT ' S NOTICE, EXPLAINING TO HIM THAT, IN VIEW ESPECIALLY OF THE PECULIARITIES OF THE SCHOOL YEAR IN CHILE, THE CHANGE IN ASSIGNMENT WOULD TAKE EFFECT, IN HIS CASE, ON 1 JANUARY 1979 .
6 THE APPLICANT HAS CHALLENGED THE LEGALITY OF THAT DECISION AND ESSENTIALLY MAKES THREE SUBMISSIONS .
7 ( A ) HE MAINTAINS FIRST THAT, AS REGARDS THE DATE ON WHICH IT WAS TO TAKE EFFECT, THE DECISION CONTRAVENES THE GENERAL PROVISIONS GOVERNING THE ROTATION SYSTEM WHICH WERE ADOPTED-PURSUANT TO ARTICLES 7 ( 1 ) AND 110 OF THE STAFF REGULATIONS OF OFFICIALS SO THAT THE COMMISSION IS BOUND TO OBSERVE THEM . HE CLAIMS IN THAT RESPECT THAT UNDER POINT 3.5 OF THOSE RULES, AS LAID DOWN BY THE COMMISSION AT ITS MEETING ON 23 JULY 1975, DECISIONS ON STAFF TRANSFERS MUST BE ADOPTED EACH YEAR BEFORE 31 JANUARY, AND TAKE EFFECT AS REGARDS THE IMPLEMENTATION OF THOSE TRANSFERS, DURING THE THIRD QUARTER, WHEREAS IN THE PRESENT CASE THE COMMISSION, ALTHOUGH IT ADOPTED THE CONTESTED DECISION TO REASSIGN THE APPLICANT BEFORE 31 JANUARY 1979 SOUGHT TO GIVE EFFECT TO THAT DECISION AS FROM 1 JANUARY 1979 .
8 THAT SUBMISSION CANNOT BE UPHELD . IT IS BASED ON AN ERRONEOUS ANALYSIS OF THE NATURE AND MANDATORY CHARACTER OF THE GENERAL PROVISIONS RELATING TO THE ROTATION SYSTEM IN QUESTION . THOSE PROVISIONS, WHICH WERE ADOPTED MOREOVER OUTSIDE THE PROCEDURE LAID DOWN IN ARTICLE 110 OF THE STAFF REGULATIONS, DERIVE FROM THE GENERAL POWER VESTED IN EVERY INSTITUTION TO PROVIDE FOR ITS OWN INTERNAL ORGANIZATION IN THE INTERESTS OF PROPER EFFICIENCY . AS THE COURT CONFIRMED IN ITS JUDGMENT OF 24 FEBRUARY 1981 IN CASE 161/80 CARBOGNANI AND CODA ZABETTA V COMMISSION ( 1981 ) ECR 543, THE INSTITUTIONS ARE AT LIBERTY TO ORGANIZE THEIR OFFICES WITH DUE RESPECT TO THE TASKS ENTRUSTED TO THEM AND TO ALLOCATE THE STAFF AVAILABLE TO THEM IN THE LIGHT OF SUCH TASKS . FROM THAT POINT OF VIEW, THE GENERAL PROVISIONS LAID DOWN BY THE COMMISSION IN ITS DECISIONS OF 23 JULY 1975 AND 24 NOVEMBER 1976 RELATING TO THE ROTATION SYSTEM IN RESPECT OF OFFICIALS ASSIGNED TO NON-MEMBER COUNTRIES DID NOT ESTABLISH AN INFLEXIBLE SYSTEM OF RULES BUT RATHER A SYSTEM WHICH, AS REGARDS THE RULES GOVERNING ITS OPERATION, MAY BE ADAPTED WHERE NECESSARY, IN THE INTERESTS OF THE PROPER EFFICIENCY OF THE SERVICE AND IN THE INTEREST OF THE OFFICIAL, TO THE NEEDS OF A GIVEN INDIVIDUAL SITUATION .
9 IN PARTICULAR THAT MAY BE THE CASE WHERE, AS HERE, CONSIDERATIONS OF A FAMILY NATURE, OWING TO THE PECULIARITIES OF THE SCHOOL YEAR IN THE COUNTRY OF ASSIGNMENT, MAKE IT INADVISABLE TO GIVE EFFECT TO A DECISION TO REASSIGN AN OFFICIAL TO BRUSSELS ON THE DATE NORMALLY ENVISAGED BY THE GENERAL RULES BUT MAKE IT APPEAR MORE APPROPRIATE, IN THE INTERESTS OF THE OFFICIAL CONCERNED, THAT THE DECISION SHOULD TAKE EFFECT ON A DIFFERENT DATE WHICH MAY, IF NECESSARY, BE AN EARLIER ONE .
10 THE MINUTES OF THE MEETING OF THE COMMISSION ON 23 JULY 1975 MENTIONED BY THE APPLICANT SHOW IN FACT THAT, BY STATING THAT TRANSFERS OF STAFF ' ' SHOULD ' '
BE CARRIED OUT IN THE THIRD QUARTER OF THE YEAR THE RELEVANT GENERAL PROVISIONS DO NOT HOWEVER EXCLUDE THE POSSIBILITY THAT DECISIONS RELATING TO SUCH TRANSFERS MAY IN SPECIAL INDIVIDUAL CASES TAKE EFFECT ON A DATE DIFFERENT FROM THAT NORMALLY SET .
11 ( B ) THE APPLICANT ALSO CLAIMS THAT THE CONTESTED DECISION, IN SO FAR AS IT REASSIGNS HIM TO HEADQUARTERS IN BRUSSELS IS IRREGULAR INASMUCH AS IT DID NOT STATE THE GROUNDS UPON WHICH IT WAS BASED OR, AT LEAST, GAVE AN INSUFFICIENT STATEMENT OF THOSE GROUNDS .
12 AS THE COURT HAS ACKNOWLEDGED, IN PARTICULAR, IN ITS JUDGMENTS OF 14 JULY 1977 IN CASE 61/76 GEIST ( 1977 ) ECR 1419 AND 12 OCTOBER 1978 IN CASE 86/77 DITTERICH ( 1978 ) ECR 1855, THE DUTY TO STATE THE GROUNDS ON WHICH A DECISION IS BASED, WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS, IS SATISFIED IF THE CIRCUMSTANCES IN WHICH THE DISPUTED MEASURE WAS ADOPTED AND NOTIFIED TO THOSE CONCERNED AND THE STAFF MEMORANDA AND OTHER COMMUNICATIONS ACCOMPANYING IT MAKE IT POSSIBLE TO RECOGNIZE THE ESSENTIAL FACTORS WHICH GUIDED THE ADMINISTRATION IN ITS DECISION .
13 IN THIS CASE IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE DECISION TO TRANSFER THE APPLICANT IN THE CONTEXT OF THE ROTATION SCHEME HAS ITS LEGAL BASIS IN THE GENERAL PROVISIONS GOVERNING THAT SCHEME, AND IN PARTICULAR IN THE DECISIONS OF 23 JULY 1975 AND 24 NOVEMBER 1976 . THE GROUNDS ON WHICH THE DECISION IS BASED ARE THUS ESSENTIALLY TO BE FOUND IN THOSE PROVISIONS THEMSELVES, TO WHICH THE DECISION REFERS, AND WHICH, BY LIMITING IN PRINCIPLE THE PERIOD OF ASSIGNMENT OF EACH OFFICIAL TO NON-MEMBER COUNTRIES TO THREE YEARS, ENVISAGES A ROTATION AND A REASSIGNMENT TO BRUSSELS IN NORMAL CASES EVERY THREE YEARS .
14 MOREOVER IT MAY BE SEEN FROM THE DOCUMENTS IN THE FILE, AS THE APPLICANT HIMSELF HAS ADMITTED, THAT HE COULD NOT HAVE BEEN UNAWARE THAT THE ADOPTION OF THE CONTESTED DECISION HAD ALREADY BEEN ENVISAGED BY THE ROTATION COMMITTEE ON 5 DECEMBER 1977 WITHIN THE CONTEXT OF A PERIODIC ROTATION OF STAFF ASSIGNED TO NON-MEMBER COUNTRIES .
15 IN THE LIGHT OF THOSE FACTORS THE SECOND SUBMISSION DOES NOT APPEAR TO BE WELL FOUNDED .
16 ( A ) THE APPLICANT FINALLY MAINTAINS THAT THE CONTESTED DECISION CONSTITUTES A DISGUISED DISCIPLINARY MEASURE INFLICTED ON HIM AS A RESULT OF UNSUPPORTED ALLEGATIONS MADE BY HIS FORMER IMMEDIATE SUPERIOR IN SANTIAGO . HE INFERS FROM THOSE FACTS THAT, BY TAKING SUCH A DECISION, THE COMMISSION HAS NOT MERELY INFRINGED ARTICLE 24 OF THE STAFF REGULATIONS, BY FAILING TO FULFIL ITS DUTY OF ASSISTANCE TO ITS OFFICIALS, BUT HAS ALSO MISUSED ITS POWERS AS REGARDS THE APPLICANT .
17 AS HAS ALREADY BEEN STATED THE ROTATION SCHEME APPLICABLE TO THE PRESENT CASE IS BASED ON THE PRINCIPLE THAT THE NORMAL PERIOD OF ASSIGNMENT IN NON-MEMBER COUNTRIES IS TO BE THREE YEARS AND THAT ON THE EXPIRY OF THAT PERIOD THE ASSIGNMENT ' ' MAY ' '
POSSIBLY BE RENEWED FROM YEAR TO YEAR FOR A MAXIMUM DURATION OF SIX YEARS .
18 IT IS NOT DISPUTED THAT IN THE PRESENT CASE THE APPLICANT WAS ASSIGNED TO SANTIAGO AS FROM 1 AUGUST 1973 AND THAT IT WAS ONLY ON 5 DECEMBER 1977 THAT THE ROTATION COMMITTEE DECIDED TO ENTER HIS NAME ON THE LIST OF THOSE TO BE CONSIDERED FOR ROTATION IN RESPECT OF 1978 AND 1979 . IT IS ALSO COMMON GROUND THAT THE ASSIGNMENT TERMINATED ON 1 JANUARY 1979 . IT FOLLOWS THAT AT THE TIME OF HIS REASSIGNMENT TO BRUSSELS THE APPLICANT HAD LONG SINCE COMPLETED THE PERIOD OF THREE YEARS ENVISAGED AS BEING THE NORMAL DURATION OF AN ASSIGNMENT IN NON-MEMBER COUNTRIES AND HAD ALL BUT REACHED THE MAXIMUM DURATION OF HIS ASSIGNMENT . IN ACCORDANCE WITH THE GENERAL PROVISIONS GOVERNING THE ROTATION SCHEME AT ISSUE HIS REASSIGNMENT TO BRUSSELS WAS THUS A MEASURE WHICH THE COMMISSION WAS ENTITLED TO ADOPT IN RESPECT OF STAFF ASSIGNED TO NON-MEMBER COUNTRIES .
19 MOREOVER, THE FACTS ALLEGED BY THE APPLICANT DO NOT PROVE THAT THE CONTESTED DECISION WAS INFLUENCED BY THE DISCIPLINARY PROCEEDINGS INITIATED AGAINST HIM .
INDEED IT IS CLEAR THAT THE TERMINATION OF THE APPLICANT ' S ASSIGNMENT TO SANTIAGO AND HIS REASSIGNMENT TO BRUSSELS HAD ALREADY BEEN ENVISAGED AS EARLY AS 5 DECEMBER 1977 WHEN THE ROTATION COMMITTEE ENTERED HIS NAME ON THE DRAFT LIST OF OFFICIALS WHO MIGHT BE CONSIDERED FOR REASSIGNMENT IN RESPECT OF 1978 AND 1979, IN OTHER WORDS WELL BEFORE 19 JUNE 1978, THE DATE ON WHICH THE APPLICANT ' S IMMEDIATE SUPERIOR IN SANTIAGO SENT TO THE ASSISTANT TO THE DIRECTOR-GENERAL OF THE DIRECTORATE-GENERAL FOR EXTERNAL RELATIONS THE MEMORANDUM WHICH GAVE RISE TO THE SENDING TO SANTIAGO OF A COMMISSION OF INQUIRY AND AS A RESULT TO THE OPENING OF THE DISCIPLINARY PROCEEDINGS .
20 FURTHERMORE, THE FACT THAT THE REASSIGNMENT OF THE APPLICANT TO BRUSSELS WAS CONTEMPLATED AND PROPOSED BY AN AD HOC BODY, THE ROTATION COMMITTEE, WHOSE DUTY IT WAS TO DRAW UP PERIODICALLY THE STAFF ROTATION LIST IN RESPECT OF ASSIGNMENTS TO NON-MEMBER COUNTRIES, AND NOT BY THE APPOINTING AUTHORITY WHICH INITIATED THE DISCIPLINARY PROCEEDINGS LIKEWISE MAKES IT EVIDENT THAT THE CONTESTED REASSIGNMENT WAS NOT LINKED TO THE OPENING OF THOSE PROCEEDINGS .
21 THE THIRD SUBMISSION MUST THEREFORE BE REJECTED .
22 ON ALL THOSE GROUNDS THE APPLICATION MUST THEREFORE BE DISMISSED AS UNFOUNDED .
Decision on costs
23 PURSUANT TO THE FIRST SUBPARAGRAPH OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
24 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .
25 HOWEVER, PURSUANT TO ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS INSTITUTED BY OFFICIALS OF THE COMMUNITIES, THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS UNFOUNDED ;
2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .