Judgment of the Court (Second Chamber) of 9 July 1981. - Mariette Turner, née Krecké, v Commission of the European Communities. - Staff regulations of officials - Medical branch. - Joined cases 59/80 and 129/80.



European Court reports 1981 Page 01883



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - ORGANIZATION OF DEPARTMENTS - INTERESTS OF THE SERVICE - DISCRETION OF THE ADMINISTRATION - MEDICAL BRANCH - DEFINITION OF THE VARIOUS DUTIES - POWERS OF THE ADMINISTRATION - LIMITS - RESPECT FOR DOCTORS ' INDEPENDENCE OF JUDGMENT AND POWERS OF DECISION - APPLICATION TO CONDUCT OF MEDICAL EXAMINATIONS ON RECRUITMENT

2 . OFFICIALS - ORGANIZATION OF DEPARTMENTS - GRADING - DISCRETION OF THE ADMINISTRATION - TAKING INTO ACCOUNT OF CRITERIA OTHER THAN SENIORITY OF OFFICIALS - PERMISSIBILITY

3 . OFFICIALS - POST - ASSIGNMENT OF DUTIES LACKING SUBSTANCE - RIGHT OF OFFICIAL TO REFUSE

Summary

1 . THE FUNCTIONS OF THE MEDICAL BRANCHES OF THE COMMUNITY INSTITUTIONS ARE DETERMINED UNDER THE STAFF REGULATIONS BY THE ADMINISTRATION IN ACCORDANCE WITH THE NEEDS CREATED EITHER BY RECRUITMENT , THE OPERATION OF THE VARIOUS SOCIAL SECURITY SCHEMES , OR THE EXAMINATION OF STAFF AND FA- CILITIES FOR HEALTH PURPOSES . THE ADMINISTRATION HAS THE RIGHT TO DEFINE THE NATURE AND THE SCOPE OF THE VARIOUS MEDICAL TASKS ARISING IN THOSE DIFFERENT AREAS , SAVE ONLY THAT IT MAY NOT IMPAIR THE INDEPENDENCE OF JUDGMENT AND DECISION OF THE DOCTORS WHOM IT EMPLOYS WHEN THEY ARE CARRYING OUT THE DUTIES ASSIGNED TO THEM IN THAT FRAMEWORK AS THUS DEFINED AND WHEN THEY ARE REQUIRED TO CARRY OUT CERTAIN KINDS OF MEDICAL WORK OF A PREVENTIVE OR THERAPEUTIC NATURE ON THEIR OWN RESPONSIBILITY .

THOSE PRINCIPLES ALSO APPLY TO THE PRACTICE OF CONDUCTING MEDICAL EXAMINATIONS OF NEW STAFF . IT IS FOR THE ADMINISTRATION TO DETERMINE THE NATURE AND SCOPE OF THE EXAMINATIONS AND TO GIVE APPROPRIATE INSTRUCTIONS TO THE DOCTORS RESPONSIBLE FOR UNDERTAKING THEM . WITHIN THAT FRAMEWORK DOCTORS ENJOY FREEDOM OF ASSESSMENT IN REGARD TO THEIR MEDICAL FINDINGS AND ASSESSMENT OF THE FITNESS OF CANDIDATES .

2 . THE ADMINISTRATION IS NOT BOUND TO CONSIDER OFFICIALS ' SENIORITY ALONE WHEN ARRANGING ITS INTERNAL ORGANIZATION .

3 . AN OFFICIAL IS ENTITLED TO REFUSE DUTIES WHICH HE MAY RIGHTLY CONSIDER TO BE LACKING IN SUBSTANCE . HE CANNOT THEREFORE BE REPROACHED FOR REFUSING TO COOPERATE IN DEFINING DUTIES THE CONTENT OF WHICH DOES NOT SEEM CLEAR TO HIM AND WHICH ARE FOR THE ADMINISTRATIVE AUTHORITY TO DETERMINE .

Parties

IN JOINED CASES 59 AND 129/80

MARIETTE TURNER , NEE KRECKE , A MEDICAL PRACTITIONER AND AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS AND REPRESENTED BY GEORGES VANDERSANDEN OF THE BRUSSELS BAR WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICO EDON , 2 RUE GOETHE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , JEAN-PIERRE DELAHOUSSE , 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 DECISIONS OF 4 MAY 1979 , 8 JUNE 1979 AND 20 MAY 1980 - THE FIRST TWO ASSIGNING THE APPLICANT TO A DIFFERENT POST , THE THIRD COMPULSORILY TRANSFERRING HER - AND FOR THE PAYMENT OF DAMAGES ,

Grounds

1 BY TWO SEPARATE APPLICATIONS LODGED AT THE COURT REGISTRY ON 21 FEBRUARY AND 29 MAY 1980 , THE APPLICANT , DR MARIETTE TURNER , NEE KRECKE , A MEDICAL PRACTITIONER AND AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN GRADE A 4 , BROUGHT ACTIONS FOR THE ANNULMENT OF , FIRST , THE DECISION OF THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION OF 4 MAY 1979 ASSIGNING NEW DUTIES TO THE APPLICANT AS PART OF THE REORGANIZATION OF THE COMMISSION ' S MEDICAL BRANCH IN BRUSSELS AND THE COMMISSION ' S DECISION OF 8 JUNE 1978 REASSIGNING THE APPLICANT TO THE MEDICAL BRANCH FOR BRUSSELES STAFF AND , SECONDLY , OF THE COMMISSION ' S DECISION OF 20 MAY 1980 COMPULSORILY TRANSFERRING THE APPLICANT TO A POST COMING UNDER DIRECTORATE-GENERAL XII ( RESEARCH , SCIENCE AND EDUCATION ). IN ADDITION THE SECOND APPLICATION INCLUDES A CLAIM FOR DAMAGES , PROVISIONALLY ESTIMATED AT TWO YEARS ' S SALARY , AS COMPENSATION FOR THE INJURY WHICH THE APPLICANT BELIEVES SHE HAS SUFFERED AS A RESULT OF THE CHANGE IN HER DUTIES .

2 THE APPLICANT RECEIVED HER MEDICAL TRAINING AT THE UNIVERSITY OF STRASBOURG , SPECIALIZING IN INTERNAL MEDICINE AND CARDIOLOGY . SHE LEFT UNIVERSITY WITH THE GRADE OF ASSISTANT HEAD OF CLINIC AT MEDICAL CLINIC A OF THE FACULTY OF MEDICINE OF STRASBOURG . IN 1966 SHE ENTERED THE SERVICE OF THE EUROPEAN ATOMIC ENERGY COMMUNITY AFTER A PARTICULARLY GLOWING ASSESSMENT OF HER APPLICATION AND LATER , IN 1968 , SHE WAS APPOINTED TO THE COMMISSION ' S MEDICAL BRANCH ( DIRECTORATE-GENERAL IX , PERSONNEL AND ADMINISTRATION ) IN WHICH , IN THE PERIOD PRIOR TO THE DISPUTE , SHE WAS ASSIGNED TO THE DEPARTMENT OF PREVENTIVE MEDICINE WHERE HER MAIN FUNCTIONS WERE CARRYING OUT EXAMINATIONS ON RECRUITMENT AND MEDICAL CHECK-UPS , CHECKING REPORTS ON MEDICAL EXAMINATIONS , VACCINATIONS , THE SICK-BAY , MEDICAL SUPERVISION OF THE CRECHE AND CONSULTATIONS AT THE REQUEST OF STAFF . IN THE SAME PERIOD THE APPLICANT ACTED AS REPLACEMENT FOR THE HEAD OF THE MEDICAL BRANCH , DR SEMILLER .

3 IT APPEARS FROM THE FILE ON THE CASE , AND IT HAS BEEN VERIFIED DURING THE INQUIRY , THAT DIFFICULTIES AROSE BETWEEN THE APPLICANT AND THE ADMINISTRATION ABOUT THE SCOPE AND THE METHOD OF CONDUCTING EXAMINATIONS ON RECRUITMENT . IT IS NOT DENIED THAT THE APPLICANT TOOK A STRICTER VIEW ON THIS MATTER THAN THE ADMINISTRATION AND A DIFFERENCE OF OPINION AROSE OVER THE PROPER BOUNDS OF THE DOCTOR ' S OWN RESPONSIBILITY AND THE ADMINISTRATION ' S POWERS OF MANAGEMENT .

4 ON 12 JULY 1978 THE COMMISSION , ACTING ON A PROPOSAL BY THE COMPETENT MEMBER OF THE COMMISSION , MR TUGENDHAT , ADOPTED A DECISION ON THE REORGANIZATION OF THE MEDICAL BRANCH WHICH WAS THENCEFORTH DIVIDED INTO A BRANCH FOR DECENTRALIZED STAFF UNDER THE CHARGE OF THE HEAD OF THE OLD MEDICAL BRANCH , DR SEMILLER , AND A BRANCH FOR BRUSSELS STAFF UNDER THE CHARGE OF DR SIDDONS , AN OFFICIAL IN GRADE A 4 WHO ENTERED THE SERVICE OF THE COMMISSION IN 1974 . BOTH THOSE BRANCHES WERE DIRECTLY ATTACHED TO THE DIRECTOR-GENERAL OF DIRECTORATE-GENERAL IX . IT WAS FURTHER DECIDED THAT THE COMPETENT COMMISSIONER SHOULD TAKE THE NECESSARY DECISIONS CONCERNING THE ASSIGNMENT TO BOTH THOSE MEDICAL BRANCHES OF THE OTHER OFFICIALS BELONGING TO THE OLD MEDICAL BRANCH .

5 IT APPEARS FROM THE DETAILED LIST OF POSTS DRAWN UP AFTER THAT DECISION WAS TAKEN THAT THE APPLICANT RETAINED , AT LEAST TEMPORARILY , HER FORMER DUTIES IN THE NEW MEDICAL BRANCH FOR BRUSSELS STAFF , INCLUDING ACTING AS REPLACEMENT FOR THE HEAD OF THE BRANCH .

6 AFTER VARIOUS TALKS BETWEEN DR SIDDONS AND THE APPLICANT AND AN INTERVIEW ON 12 MARCH 1979 BETWEEN THE APPLICANT AND THE DIRECTOR-GENERAL ON 14 MARCH 1979 THE DIRECTOR-GENERAL SENT THE APPLICANT A LETTER IN WHICH HE CONFIRMED THAT AS PART OF THE REORGANIZATION OF THE MEDICAL BRANCH HE INTENDED TO PUT DR TURNER IN CHARGE OF A ' ' MEDICO-SOCIAL UNIT ' ' IN THE MEDICAL BRANCH FOR BRUSSELS STAFF . IT WAS DEFINED IN THESE TERMS :

( 1 ) SOCIAL MEDICINE

- DEVELOPMENT OF SOCIAL MEDICINE AT THE COMMISSION - PSYCHOLOGICAL AND PSYCHIATRIC PROBLEMS AND OTHER MEDICO-SOCIAL PROBLEMS ;

-THE DRAWING UP AND IMPLEMENTATION OF A PROGRAMME TO COMBAT ALCOHOLISM AT THE COMMISSION ;

-LIAISON WITH THE WELFARE DIVISION .

( 2)OTHER MEDICAL DUTIES ( AS FAR AS THE PROGRAMME OF SOCIAL MEDICINE PERMITS )

-MEDICAL CHECK-UPS ;

-INVALIDITY COMMITTEE ;

-THE MONITORING OF MEDICAL CHECK-UPS CARRIED OUT OUTSIDE THE INSTITUTIONS ( FINAL PARAGRAPH OF ARTICLE 59 OF THE STAFF REGULATIONS ) AND THE GIVING OF OPINIONS ON REQUESTS FOR ADDITIONAL EXAMINATIONS ;

-MEDICAL SUPERVISION OF THE STAFF OF THE ECONOMIC AND SOCIAL COMMITTEE ;

-OTHER DUTIES AS AND WHEN THE NEEDS OF THE SERVICE REQUIRE .

( 3)ADMINISTRATIVE DUTIES

-ASSISTING IN THE ADMINISTRATIVE WORK OF THE BRANCH .

7 AFTER THE INTERVIEW ON 12 MARCH 1979 THE APPLICANT SENT THE DIRECTOR-GENERAL A REPORT DATED 13 MARCH 1979 IN WHICH SHE SET OUT HER VIEW OF MEDICAL EXAMINATIONS ON RECRUITMENT FOLLOWING THE CONVERSATION WHICH HAD TAKEN PLACE .

8 BY A LETTER OF 21 MARCH 1979 THE APPLICANT INFORMED THE DIRECTOR-GENERAL THAT IT WAS NOT POSSIBLE FOR HER TO CONSENT TO THE PROPOSAL WHICH HAD BEEN MADE . SHE CONTENDED , FIRST , THAT THE COMMISSION HAD NOT TAKEN ANY DECISION FOR THE PURPOSE OF ORGANIZING A DEPARTMENT OF THAT NATURE AND , SECONDLY , THAT THE DUTIES LISTED UNDER ' ' SOCIAL MEDICINE ' ' WERE NOT RELATED TO HER OWN MEDICAL SPECIALITY .

9 BY A LETTER OF 4 MAY 1979 THE DIRECTOR-GENERAL FORMALLY REQUESTED THE APPLICANT TO TAKE UP HER NEW DUTIES FROM 10 MAY STATING THAT , BESIDES PSYCHOLOGICAL AND PSYCHIATRIC PROBLEMS , THE WORK UNDER THE HEAD ' ' SOCIAL MEDICINE ' ' WOULD CONSIST OF ' ' EXAMINING TOGETHER WITH THE OTHER DEPARTMENTS OF THE ADMINISTRATION CERTAIN INDIVIDUAL CASES PRESENTING BOTH MEDICAL AND SOCIAL PROBLEMS ' ' .

10 BY A LETTER OF 10 MAY 1979 THE APPLICANT STATED THAT SHE WAS STILL OPPOSED TO THE DECISION WHICH HAD BEEN TAKEN . SHE POINTED OUT THAT NO REORGANIZATION PLAN HAD BEEN DRAWN UP BY THE COMMISSION AND THAT THERE WAS NO DETAILED LIST OF POSTS UNDER WHICH THE NEW DUTIES PROPOSED TO HER COULD BE DEFINED . BY A LETTER OF 14 MAY 1979 THE DIRECTOR-GENERAL STATED THAT HIS LETTER OF 4 MAY 1979 WAS A FORMAL INSTRUCTION ON HIS PART AND THAT THE APPLICANT WAS REQUIRED TO PERFORM HER NEW DUTIES IN THE BRUSSELS MEDICAL BRANCH FROM THE DATE PREVIOUSLY INDICATED .

11 ON 18 MAY 1979 DR SIDDONS GAVE THE APPLICANT CONFIRMATION OF HER NEW DUTIES STATING THAT FROM 28 MAY 1979 THEY WOULD BE THOSE DESCRIBED IN THE DIRECTOR-GENERAL ' S LETTER OF 14 MARCH 1979 MENTIONED ABOVE . HE ADDED THAT THE DESCRIPTION OF DUTIES WAS SUFFICIENTLY DETAILED TO ENABLE THE APPLICANT TO IMPLEMENT THE PROGRAMME ENVISAGED . AT THE SAME TIME HE ASKED DR TURNER TO LET HIM HAVE PROPOSALS AS SOON AS POSSIBLE FOR CARRYING IT OUT . TO THAT LETTER A ' ' STAFF NOTE ' ' WAS ATTACHED LISTING DR TURNER ' S DUTIES IN IDENTICAL TERMS TO THOSE CONTAINED IN THE LETTER OF 14 MARCH 1979 EXCEPT THAT THEY INCLUDED AMONG THE ' ' OTHER DUTIES AS AND WHEN THE NEEDS OF THE SERVICE REQUIRE ' ' MEDICAL CHECK-UPS OF STAFF EMPLOYED IN THE CRECHE . THE DOCUMENT ALSO STATED THAT FROM 28 MAY 1979 EXAMINATIONS ON RECRUITMENT WOULD BE CARRIED OUT BY DOCTORS CALLEBAUT , KLEIN AND MANCINI . IT BECAME APPARENT DURING THE PRELIMINARY INQUIRY THAT THOSE THREE DOCTORS WORKED FOR THE COMMISSION PART-TIME AS VISITING DOCTORS .

12 ON 8 JUNE 1979 THE COMMISSION ADOPTED AN EXPRESS DECISION REASSIGNING DR TURNER FROM THE OLD MEDICAL BRANCH TO THAT FOR BRUSSELS STAFF . THAT DECISION GIVES NO DETAILS OF THE NEW DUTIES ASSIGNED TO THE APPLICANT .

13 ON 3 JULY 1979 THE APPLICANT SERVED A COMPLAINT ON THE COMMISSION UNDER ARTICLE 90 OF THE STAFF REGULATIONS AGAINST THE DECISION OF THE DIRECTOR-GENERAL FOR PERSONNEL OF 4 MAY 1979 . IN HER COMPLAINT SHE CLAIMED THAT , BESIDES THE FACT THAT SHE WAS PLACED UNDER THE DIRECTION OF ANOTHER DOCTOR IN THE SAME GRADE AS HERSELF , THE DUTIES IN THE SO-CALLED ' ' MEDICO-SOCIAL ' ' FIELD WERE EXCESSIVELY VAGUE , BORE NO RELATION TO THE FACTS OF THE SITUATION AND HARDLY ANY TO HER OWN SPECIALIZED FIELD . SO , BESIDES INVOLVING A SIGNIFICANT REDUCTION IN THE WORK NORMALLY CARRIED OUT BY A MEDICAL OFFICER SERVING AS AN OFFICIAL IN THE MEDICAL BRANCH , THE CHANGE OF POSTING IMPOSED UPON HER HAD ALL THE CHARACTERISTICS OF A DISGUISED DISCIPLINARY MEASURE AND HAD BEEN INTERPRETED IN THAT WAY IN THE MEDICAL BRANCH .

14 ON 6 NOVEMBER 1979 THE APPLICANT SUBMITTED TO THE ADMINISTRATION A MEMORANDUM ON THE ORGANIZATION OF MEDICAL WORK IN BRUSSELS IN WHICH SHE SET OUT HER VIEWS ON THE DISTINCTION BETWEEN INDUSTRIAL MEDICINE , PREVENTIVE MEDICINE AND SOCIAL MEDICINE . SHE STRESSED IN PARTICULAR THAT ALL MEDICAL WORK IN THE MEDICAL BRANCH HAD A SOCIAL ASPECT AND THAT IT THEREFORE SEEMED ARTIFICIAL TO SEPARATE THAT WORK FROM THE FUNCTIONS OF THE BRANCH AS A WHOLE .

15 THE COMPLAINT OF 3 JULY 1979 WAS REJECTED BY A LETTER OF 13 DECEMBER 1979 SIGNED BY THE COMPETENT COMMISSIONER . FOLLOWING THAT DECISION THE APPLICANT LODGED HER FIRST APPLICATION TO THE COURT ON 21 FEBRUARY 1980 .

16 IT APPEARS FROM THE FILE ON THE CASE THAT IN THE SAME PERIOD THE HEAD OF THE BRANCH REPEATEDLY ASKED THE APPLICANT FOR HER PROPOSALS ON THE ORGANIZATION OF THE ' ' MEDICO-SOCIAL UNIT ' ' BUT THAT SHE ALWAYS REFUSED TO COOPERATE IN ORGANIZING SUCH A UNIT WHICH , SHE CLAIMED IN A LETTER SENT TO THE DIRECTOR GENERAL FOR PERSONNEL ON 5 OCTOBER 1979 , WAS BEING CREATED PRIMARILY IN ORDER TO REMOVE HER FROM THE MEDICAL BRANCH BY GIVING HER DUTIES WHICH WERE ILL-DEFINED AND IN ANY EVENT UNRELATED TO HER SPECIALIZED FIELD .

17 ON 17 JANUARY 1980 THE DIRECTOR-GENERAL SENT THE APPLICANT A LETTER INFORMING HER OF HIS INTENTION TO PROPOSE THAT IN THE INTERESTS OF THE SERVICE SHE BE ASSIGNED TO ANOTHER POST . BY A LETTER OF 8 FEBRUARY 1980 HE PROVIDED FURTHER DETAILS , OFFERING DR TURNER A CHOICE BETWEEN A POST IN DIRECTORATE- GENERAL V ( EMPLOYMENT AND SOCIAL AFFAIRS ) AND ONE IN DIRECTORATE-GENERAL XII ( RESEARCH , SCIENCE AND EDUCATION ).

18 AFTER OBTAINING INFORMATION FROM THOSE TWO DIRECTORATES-GENERAL ON THE POSTS OFFERED THE APPLICANT INFORMED THE DIRECTOR-GENERAL BY A LETTER OF 26 FEBRUARY 1980 THAT NEITHER OF THE POSTS COMPRISED DUTIES RELATED TO THE PRACTICE OF MEDICINE , INTERNAL MEDICINE , CARDIOLOGY OR INDUSTRIAL MEDICINE AND THAT THE TWO POSTS IN QUESTION HAD NO WELL-DEFINED DUTIES AT ALL .

19 IN THE SAME PERIOD THE ADMINISTRATION PUBLISHED VACANCY NOTICE NO COM/229/80 RELATING TO A POST IN CAREER BRACKET A 5/A 4 IN DIRECTORATE-GENERAL XII . IT GAVE THE FOLLOWING DETAILS :

' ' NATURE OF DUTIES : PRINCIPAL ADMINISTRATOR TO ASSIST IN :

- ORGANIZING THE WORK OF THE COMMITTEE ON MEDICAL RESEARCH AND PUBLIC HEALTH ( CRM/CREST ) AND THAT OF ITS PERMANENT WORKING PARTIES ;

- INTERDEPARTMENTAL LIAISON TO COORDINATE THE COMMISSION ' S WORK TOUCHING ON HEALTH ;

- A CONSTANT COMPARISON OF NATIONAL RESEARCH AND DEVELOPMENT PROGRAMMES IN THIS FIELD .

QUALIFICATIONS REQUIRED :

- UNIVERSITY EDUCATION LEADING TO A DEGREE OR EQUIVALENT WORKING EXPERIENCE ;

- KNOWLEDGE OF MEDICINE ;

- THOROUGH EXPERIENCE RELATED TO THE DUTIES ' ' .

20 BY DECISION OF 20 MAY 1980 THE COMMISSION COMPULSORILY TRANSFERRED THE APPLICANT TO THE POST DESCRIBED IN VACANCY NOTICE NO COM/229/80 AS FROM 1 JUNE 1980 . IN THE RECITALS TO THAT DECISION THE COMMISSION , HAVING NOTED THE APPLICANT ' S OBJECTIONS , STATES AS FOLLOWS :

' ' MOREOVER , DR TURNER , WHO WAS PREVIOUSLY ASSIGNED TO THE SPECIALIZED MEDICAL BRANCH FOR BRUSSELS STAFF HAS NOT ADAPTED HERSELF TO THE NEW DUTIES WHICH HAVE BEEN ASSIGNED TO HER IN THAT BRANCH ; IT THEREFORE APPEARS THAT IT IS NECESSARY , BOTH IN THE INTERESTS OF THE SERVICE AND IN THOSE OF DR TURNER , TO ASSIGN TO HER NEW DUTIES ' ' .

21 ON 28 MAY 1980 THE APPLICANT SUBMITTED A COMPLAINT AGAINST THAT DECISION UNDER ARTICLE 90 OF THE STAFF REGULATIONS AND ON 29 MAY 1980 SHE LODGED HER SECOND APPLICATION TO THE COURT AND AT THE SAME TIME APPLIED FOR THE ADOPTION OF INTERIM MEASURES TO SUSPEND THE OPERATION OF THE DECISION TO TRANSFER HER .

22 BY ORDER OF 2 JULY 1980 (( 1980 ) ECR 2135 ) THE PRESIDENT OF THE SECOND CHAMBER DECIDED THAT THERE WAS NO URGENCY AND THAT THE IMMEDIATE APPLICATION OF THE DECISION WAS NOT LIKELY TO HAVE IRREVERSIBLE CONSEQUENCES AS FAR AS THE APPLICANT WAS CONCERNED AND HE REJECTED THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .

23 THE APPLICANT ' S COMPLAINT THROUGH OFFICIAL CHANNELS WAS REJECTED BY COMMISSION DECISION OF 2 OCTOBER 1980 .

24 THE COMMISSION SUBSEQUENTLY PUBLISHED A VACANCY NOTICE UNDER REFERENCE COM/947/80 CREATING A POST IN CAREER BRACKET A 7/A 6 IN THE MEDICAL BRANCH FOR BRUSSELS STAFF WITH A TIME-LIMIT OF 28 NOVEMBER 1980 FOR THE SUBMISSION OF APPLICATIONS . IT SPECIFIED AS FOLLOWS :

' ' TITLE OF POST : MEDICAL OFFICER

DESCRIPTION AND NATURE OF DUTIES :

WORKING AS A MEDICAL OFFICER AND ASSISTING THE HEAD OF BRANCH IN RELATION TO MEDICAL ADMINISTRATION IN THE MEDICAL BRANCH OF THE COMMISSION OF THE EUROPEAN COMMUNITIES FOR BRUSSELS STAFF , IN PARTICULAR :

1 . PREVENTIVE MEDICINE

2 . INDUSTRIAL MEDICINE

3 . CONSULTATIONS AT THE REQUEST OF STAFF ' ' .

25 THE COMMISSION HAS ADMITTED THAT THAT VACANCY NOTICE WAS IN FACT INTENDED TO SECURE A REPLACEMENT FOR THE APPLICANT IN THE MEDICAL BRANCH . IT ALSO EMERGED DURING THE INQUIRY THAT THE DUTIES PREVIOUSLY PROPOSED TO DR TURNER HAD BEEN SHARED AFTER HER COMPULSORY TRANSFER BY THE HEAD OF THE BRANCH AND A VISITING DOCTOR WORKING PART-TIME WHO WAS ALSO RESPONSIBLE FOR SOME OF THE EXAMINATIONS ON RECRUITMENT AND THAT TOWARDS THE END OF SEPTEMBER 1980 THE VISITING DOCTOR HAD DRAWN UP A ' ' PROPOSAL FOR A MEDICO-SOCIAL UNIT ' ' CONSISTING OF TWO TYPED PAGES . ON THE DATE OF THE ORAL PROCEDURE THAT PROPOSAL HAD STILL NOT RECEIVED THE APPROVAL OF THE HEAD OF THE BRANCH .

THE OBJECT OF THE ACTION

26 THE FIRST APPLICATION ( 59/80 ) IS FOR THE ANNULMENT OF THE DECISIONS ADOPTED BY THE COMMISSION TO TAKE AWAY THE APPLICANT ' S FORMER DUTIES AND GIVE HER A NEW RESPONSIBILITY , FOR A ' ' MEDICO-SOCIAL ' ' UNIT OR BRANCH . IT BECAME CLEAR DURING THE PROCEEDINGS THAT THE DECISION OF 8 JUNE 1969 REASSIGNING THE APPLICANT TO THE MEDICAL BRANCH FOR BRUSSELS STAFF , THE OBJECT OF THE ACTION , WAS NOT OF A NATURE SUCH AS ADVERSELY TO AFFECT THE APPLICANT , SINCE IT DID NOT CONTAIN ANY SPECIFIC DETAILS OF HER DUTIES . IT ALSO BECAME CLEAR DURING THE PROCEEDINGS THAT IN ACTUAL FACT THAT DECISION WAS NOT SUBJECT TO CHALLENGE .

27 IN SUPPORT OF HER APPLICATION THE APPLICANT MAKES TWO SUBMISSIONS ALLEGING , FIRST , DISREGARD OF THE INTERESTS OF THE SERVICE , MENTIONED IN ARTICLE 7 ( 1 ) OF THE STAFF REGULATIONS , AND , SECONDLY , A MISUSE OF POWER AS REGARDS HER .

28 THE OBJECT OF THE SECOND APPLICATION ( 129/80 ) IS THE DECISION OF 20 MAY 1980 IMPOSING A COMPULSORY TRANSFER . THE APPLICATION IS BASED ON FOUR SUBMISSIONS ALLEGING , FIRST , DISREGARD OF THE INTERESTS OF THE SERVICE WITHIN THE MEANING OF ARTICLE 7 OF THE STAFF REGULATIONS , SECONDLY , INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS BECAUSE THE GROUNDS ON WHICH THE DECISION TO TRANSFER HER WAS BASED WERE INCORRECT IN SO FAR AS IT WAS CLAIMED THAT THERE WAS A FAILURE ON THE PART OF THE APPLICANT TO ADAPT HERSELF TO HER NEW DUTIES , THIRDLY , A BREACH OF THE ' ' DUTY OF CARE ' ' , AS DEFINED BY THE COURT ( THIRD CHAMBER ) IN ITS JUDGMENT OF 28 MAY 1980 IN JOINED CASES 33 AND 75/79 KUHNER ( 1980 ) ECR 1677 AND , FINALLY , A MISUSE OF POWER ON THE GROUND THAT THE DECISION TO TRANSFER HER IS REALLY A DISGUISED DISCIPLINARY MEASURE .

29 AN ANALYSIS OF THOSE SUBMISSIONS SHOWS THAT ALTHOUGH THE FIRST SUBMISSION ON THE TAKING INTO ACCOUNT OF THE INTERESTS OF THE SERVICE COINCIDES WITH THE FIRST SUBMISSION IN APPLICATION 59/80 , THE OTHER THREE SUBMISSIONS CONCERNED WITH THE TAKING INTO ACCOUNT OF THE APPLICANT ' S PERSONAL SITUATION IN FACT OVERLAP , EXCEPT FOR THE ALLEGED LACK OF REASONS , WITH THE SUBMISSION ALLEGING MISUSE OF POWER .

30 IT FOLLOWS THAT NOW THAT THE TWO CASES ARE JOINED THE TWO APPLICATIONS MAY BE CONSIDERED AS A WHOLE IN THE LIGHT OF TWO SUBMISSIONS AS TO , ON THE ONE HAND , THE TAKING INTO ACCOUNT OF THE INTERESTS OF THE SERVICE WITHIN THE MEANING OF ARTICLE 7 OF THE STAFF REGULATIONS AND , ON THE OTHER , THE CONCEPT OF MISUSE OF POWER , SUBJECT TO THE SUBMISSION ALLEGING AN INSUFFICIENT STATEMENT OF THE GROUNDS , WHICH IS DIRECTED ONLY AGAINST THE DECISION TO TRANSFER THE APPLICANT .

31 BY WAY OF THE CLAIM FOR DAMAGES INCLUDED IN THE SECOND APPLICATION THE APPLICANT SEEKS COMPENSATION FOR THE NON-MATERIAL DAMAGE WHICH SHE ALLEGES HER CHANGE OF POSTING CAUSED HER .

ADMISSIBILITY

32 IN ITS DEFENCE TO THE FIRST APPLICATION THE COMMISSION HAS RAISED TWO OBJECTIONS OF INADMISSIBILITY .

33 THE FIRST OF THOSE OBJECTIONS , MADE AGAINST THE APPLICATION IN SO FAR AS IT CHALLENGES THE DECISION OF 8 JUNE 1979 TO REASSIGN THE APPLICANT , HAS LOST ITS PURPOSE BECAUSE IT HAS BEEN STATED THAT THE APPLICANT HAS NO INTEREST IN CHALLENGING THAT DECISION .

34 THE SECOND OBJECTION OF INADMISSIBILITY IS BASED ON THE FACT THAT THE APPLICANT NO LONGER HAS ANY INTEREST IN SEEKING THE ANNULMENT OF THE MEASURES CHANGING HER DUTIES IN THE MEDICAL BRANCH BECAUSE BY THE DECISION OF 20 MAY 1980 SHE WAS TRANSFERRED TO ANOTHER DIRECTORATE-GENERAL . THE COMMISSION TAKES THE VIEW THAT ONCE THE CONTESTED MEASURE CEASES TO HAVE EFFECT DURING THE PROCEEDINGS BEFORE THE COURT THE ACTION LOSES ITS PURPOSE .

35 THAT LINE OF ARGUMENT ON THE PART OF THE COMMISSION MUST BE REJECTED SINCE IT IS CONTRARY TO GOOD FAITH ( SEE THE JUDGMENT OF 21 MAY 1981 IN CASE 156/80 MORBELLI , ( 1981 ) PARAGRAPH 14 ).

36 IN FACT BY STATING IN THE RECITALS TO THE DECISION TO TRANSFER THE APPLICANT THAT SHE HAD NOT ' ' ADAPTED HERSELF TO THE NEW DUTIES ASSIGNED TO HER ' ' , THE COMMISSION ITSELF ESTABLISHED A LINK BETWEEN THAT DECISION AND THE DISPUTE FORMING THE OBJECT OF THE FIRST APPLICATION . THE COMMISSION IS THEREFORE CONTRADICTING ITS OWN STATEMENTS IF IT CLAIMS THAT THE FIRST APPLICATION HAS LOST ITS PURPOSE OWING TO THE DECISION TO TRANSFER THE APPLICANT .

37 THAT OBJECTION OF INADMISSIBILITY MUST THEREFORE BE REJECTED .

THE SUBMISSION ALLEGING DISREGARD OF THE INTERESTS OF THE SERVICE

38 THE APPLICANT RELIES FIRST ON ARTICLE 7 OF THE STAFF REGULATIONS ACCORDING TO WHICH THE ASSIGNMENT OF OFFICIALS SHOULD BE ' ' SOLELY IN THE INTERESTS OF THE SERVICE ' ' . SHE MAKES THREE ARGUMENTS IN THIS REGARD CONCERNING THE DEMARCATION OF DUTIES BETWEEN THE ADMINISTRATION AND THE MEDICAL BRANCH , THE ABSENCE OF ANY OBJECTIVE JUSTIFICATION FOR THE SETTING-UP OF A ' ' MEDICO-SOCIAL ' ' UNIT AND CERTAIN ASPECTS OF THE ORGANIZATION OF THE MEDICAL BRANCH .

39 SHE CONTENDS THAT IT IS NOT FOR THE ADMINISTRATION TO DEFINE , ALLOCATE OR ALTER MEDICAL DUTIES AND EMPHASIZES THE FREEDOM AND ETHICAL INDEPENDENCE OF A DOCTOR WHEN CARRYING OUT THE RESPONSIBILITIES WHICH ARE HIS . IT IS ON THE BASIS OF THAT PRINCIPLE THAT SHE SETS OUT IN GREATER DETAIL , IN HER STATEMENT OF 3 MARCH 1979 , HER VIEW OF MEDICAL EXAMINATIONS ON RECRUITMENT , STRESSING THE FREEDOM OF ACTION WHICH MUST BE ALLOWED TO THE DOCTOR IN THIS MATTER WHEN DECIDING ON THE EXTENT OF HIS INVESTIGATIONS AND THE FREEDOM TO MAKE HIS OWN JUDGMENT WHEN SETTING FORTH HIS ASSESSMENT . SHE POINTS OUT THAT AFTER THE ONLY DOCTOR ON THE ESTABLISHED STAFF RESPONSIBLE FOR MEDICAL EXAMINATIONS ON RECRUITMENT WAS OUSTED FROM THE MEDICAL BRANCH , THE TASK OF CONDUCTING THEM WAS ASSIGNED TO SEVERAL VISITING DOCTORS WITH THE RESULT THAT SUCH EXAMINATIONS HAVE SINCE LOST ALL CONSISTENCY .

40 IN ADOPTING THAT LINE OF ARGUMENT THE APPLICANT IS CONFUSING THE FREEDOM OF ASSESSMENT WHICH MUST BE ACCORDED TO DOCTORS , AS REGARDS MAKING DIAGNOSES AND TAKING MEDICAL DECISIONS WHERE THEY THEMSELVES ASSUME RESPONSIBILITY FOR ANY TREATMENT , AND THE SPECIAL POSITION OF A DOCTOR ACTING IN A CONSULTATIVE OR SUPERVISORY CAPACITY WITHIN AN ADMINISTRATIVE FRAMEWORK .

41 THE FUNCTIONS OF THE MEDICAL BRANCHES OF THE COMMUNITY INSTITUTIONS ARE DETERMINED UNDER THE STAFF REGULATIONS BY THE ADMINISTRATION IN ACCORDANCE WITH THE NEEDS CREATED EITHER BY RECRUITMENT , THE OPERATION OF THE VARIOUS SOCIAL SECURITY SCHEMES , OR THE EXAMINATION OF STAFF AND FACILITIES FOR HEALTH PURPOSES . THE ADMINISTRATION HAS THE RIGHT TO DEFINE THE NATURE AND THE SCOPE OF THE VARIOUS MEDICAL TASKS ARISING IN THOSE DIFFERENT AREAS , SAVE ONLY THAT IT MAY NOT IMPAIR THE INDEPENDENCE OF JUDGMENT AND DECISION OF THE DOCTORS WHOM IT EMPLOYS WHEN THEY ARE CARRYING OUT THE DUTIES ASSIGNED TO THEM IN THAT FRAMEWORK AS THUS DEFINED AND WHEN THEY ARE REQUIRED TO CARRY OUT CERTAIN KINDS OF MEDICAL WORK OF A PREVENTIVE OR THERAPEUTIC NATURE ON THEIR OWN RESPONSIBILITY .

42 THOSE PRINCIPLES ALSO APPLY TO THE PRACTICE OF CONDUCTING MEDICAL EXAMINATIONS OF NEW STAFF . IT IS FOR THE ADMINISTRATION TO DETERMINE THE NATURE AND SCOPE OF THE EXAMINATIONS AND TO GIVE APPROPRIATE INSTRUCTIONS TO THE DOCTORS RESPONSIBLE FOR UNDERTAKING THEM . WITHIN THAT FRAMEWORK DOCTORS ENJOY FREEDOM OF ASSESSMENT IN REGARD TO THEIR MEDICAL FINDINGS AND ASSESSMENT OF THE FITNESS OF CANDIDATES .

43 SECONDLY , THE APPLICANT MAKES SOME CRITICISM OF THE VERY IDEA OF A ' ' MEDICO-SOCIAL UNIT ' ' AND THE NEED TO CREATE A SPECIAL ORGANIZATION FOR SUCH WORK WITHIN THE MEDICAL BRANCH . SHE CONTENDS FIRST OF ALL THAT THERE IS NO PRECISE DISTINCTION BETWEEN INDUSTRIAL MEDICINE , PREVENTIVE MEDICINE AND SOCIAL MEDICINE INASMUCH AS THE MEDICAL AND SOCIAL ASPECTS OF ALL THE DUTIES ASSIGNED TO THE MEDICAL BRANCH ARE CLOSELY CONNECTED SO THAT THE DEFINITION OF A SPECIALIZED ' ' MEDICO-SOCIAL UNIT ' ' CREATES AN ARTIFICIAL DISTINCTION BETWEEN TYPES OF WORK WHICH ARE REALLY INSEPARABLE . AS REGARDS THE STEPS TAKEN IN THIS REGARD BY THE DIRECTOR-GENERAL AND THE HEAD OF THE MEDICAL BRANCH FOR BRUSSELS STAFF , THE APPLICANT DRAWS ATTENTION TO THE FACT THAT THE COMMISSION HAS NEVER DECIDED UPON THE CREATION OF SUCH A UNIT AND THEREFORE IT IS NOT FOR THE ADMINISTRATION TO SET IT UP .

44 THE APPLICANT IS NO DOUBT RIGHT WHEN SHE EMPHASIZES THAT THERE IS A CLOSE LINK BETWEEN INDUSTRIAL , PREVENTIVE AND SOCIAL MEDICINE . THAT WAS NOT CONTESTED DURING THE INQUIRY . HOWEVER , THAT FACT IS IN NO WAY INCONSISTENT WITH THE ADMINISTRATION ' S COMPLETE FREEDOM AS REGARDS THE ORGANIZATION OF THE MEDICAL BRANCH , THE ALLOCATION OF DUTIES WITHIN IT AND THE ASSIGNMENT OF STAFF ON THE BASIS OF THE DUTIES SO DEFINED .

45 THEREFORE , WITHOUT PREJUDICE TO THE ASSESSMENT OF THE INDIVIDUAL SITUATION OF THE APPLICANT AND OF THE ACTION TAKEN BY THE OFFICERS OF THE COMMISSION IN REGARD TO HER , THE FREEDOM OF THE COMMUNITY ADMINISTRATION TO GIVE DOCTORS IN ITS MEDICAL BRANCH MORE OR LESS SPECIALIZED DUTIES FOR THE PURPOSE OF CARRYING OUT CERTAIN SPECIFIC TASKS , SUCH AS THOSE ENTAILING MEDICAL SOCIAL WORK , IS NOT OPEN TO CHALLENGE .

46 MOREOVER , THE ADMINISTRATION CANNOT BE DENIED THE POWER TO DEFINE THOSE DUTIES WITHIN THE FRAMEWORK OF GENERAL DIRECTIVES ISSUED BY THE COMMISSION . IT FOLLOWS THAT THE DECISION ADOPTED ON 12 JULY 1978 BY THE COMMISSION FORMED A SUFFICIENT BASIS TO ALLOW THE ADMINISTRATION TO ADOPT ALL THE MEASURES WHICH IT CONSIDERED NECESSARY FOR THE PURPOSE OF GIVING A STRUCTURE TO THE TWO MEDICAL BRANCHES WHICH IT HAD BEEN DECIDED TO SET UP AT THAT TIME .

47 LAST OF ALL THE APPLICANT RAISES CERTAIN ISSUES CONCERNING THE ACTUAL ORGANIZATION OF THE MEDICAL BRANCH . SHE CONSIDERS FIRST THAT THE DIVISION OF THE FORMER MEDICAL BRANCH INTO A BRANCH FOR DECENTRALIZED STAFF AND ONE FOR BRUSSELS STAFF IS NOT IN ACCORDANCE WITH MEDICAL REQUIREMENTS . FURTHERMORE SHE COMPLAINS THAT THE HEAD OF THE NEW BRANCH FOR BRUSSELS STAFF WAS APPOINTED IN DISREGARD OF SENIORITY BECAUSE HE WAS A DOCTOR IN THE SAME GRADE AS HERSELF , WHO HAD ENTERED THE SERVICE OF THE COMMISSION AFTER HER .

48 AS REGARDS THE DIVISION OF THE FORMER MEDICAL BRANCH INTO A BRANCH FOR DECENTRALIZED STAFF AND ONE FOR BRUSSELS STAFF , IT IS SUFFICIENT TO POINT OUT THAT THE APPLICANT HAS NO INTEREST IN RAISING ANY CHALLENGE IN THAT MATTER BECAUSE HER POSTING TO A RELATIVELY LARGE UNIT , NAMELY THE MEDICAL BRANCH FOR BRUSSELS STAFF , LEFT THE ADMINISTRATION WITH AMPLE SCOPE FOR GIVING HER A POST CORRESPONDING TO HER TRAINING AND EXPERIENCE .

49 AS REGARDS THE ISSUE OF THE APPLICANT ' S SENIORITY COMPARED TO THAT OF THE NEW HEAD OF THE MEDICAL BRANCH FOR BRUSSELS STAFF , THE COMMISSION POINTS OUT THAT ALTHOUGH IT IS TRUE THAT THE PRESENT HEAD OF THE BRANCH WAS NOT RECRUITED UNTIL 1974 , THAT IS TO SAY , WHEN THE APPLICANT WAS ALREADY IN THE SERVICE OF THE COMMISSION , IT IS NOT CONTESTED THAT HE RANKS HIGHER THAN THE APPLICANT BECAUSE HE WAS APPOINTED DIRECTLY INTO GRADE A 4 WHEREAS THE APPLICANT DID NOT OBTAIN PROMOTION TO THAT GRADE UNTIL 1978 .

50 EVEN THOUGH IT MUST BE ADMITTED THAT ADMINISTRATIVE PRACTICES OF THAT KIND MAY CREATE DIFFICULTIES AS FAR AS COOPERATION WITHIN DEPARTMENTS IS CONCERNED , IT SHOULD HOWEVER BE REMEMBERED THAT THE ADMINISTRATION IS NOT BOUND TO CONSIDER SENIORITY ALONE WHEN ARRANGING ITS INTERNAL ORGANIZATION . IT DOES NOT MOREOVER APPEAR THAT THE COMMISSION INJURED THE APPLICANT ' S INTERESTS IN APPOINTING THE HEAD OF THE NEW MEDICAL BRANCH FOR BRUSSELS STAFF BECAUSE OWING TO THE GRADING GIVEN TO THE FUTURE HEAD OF THE BRANCH FROM 1974 SHE WAS LOWER IN RANK .

51 IT IS APPARENT FROM ALL THE FOREGOING CONSIDERATIONS THAT THE FIRST SUBMISSION MUST BE REJECTED .

THE SUBMISSIONS BASED ON MISUSE OF POWER AND INCORRECT STATEMENT OF REASONS

52 AS FAR AS HER REASSIGNMENT IN THE MEDICAL BRANCH IS CONCERNED , THE APPLICANT CONTENDS THAT THE DUTIES ASSIGNED TO HER IN THE ' ' MEDICO-SOCIAL UNIT ' ' LACKED SUBSTANCE , THAT THE ADMINISTRATION WAS NEVER ABLE TO DESCRIBE THEM IN SPECIFIC TERMS AND THAT THE ACTION TAKEN AGAINST HER HAD NO OTHER PURPOSE THAN TO DEPRIVE HER OF HER FORMER DUTIES AND TO ' ' SHUNT HER INTO A SIDING ' ' . SHE FURTHER ARGUES THAT , EVEN IF THE ADMINISTRATION GENUINELY WISHED TO DEVELOP THIS PART OF THE MEDICAL BRANCH , THOSE DUTIES WERE OUTSIDE HER OWN SPECIALIZED FIELD AS A CLINICIAN SPECIALIZING IN INTERNAL MEDICINE BECAUSE THE DUTIES IN QUESTION WERE MORE CLOSELY RELATED TO THE FIELD OF PSYCHOLOGY AND SOCIAL WORK . SHE POINTS OUT FINALLY THAT AFTER SHE WAS OUSTED FROM THE MEDICAL BRANCH THE DUTIES ASSIGNED TO HER WERE PRACTICALLY ABANDONED AND THAT THEY ARE NO LONGER EVEN PART OF THE DESCRIPTION OF THE POST OFFERED FOR COMPETITION TO FILL THE VACANCY CREATED IN THE MEDICAL BRANCH FOLLOWING HER REMOVAL .

53 AS REGARDS THE COMPULSORY TRANSFER , THE APPLICANT POINTS OUT THAT SHE WAS APPOINTED AGAINST HER WILL TO A POST COMPLETELY UNRELATED TO HER TRAINING AND SPECIALIZED FIELD WHICH , JUDGING BY THE PARTICULARS CONTAINED IN THE VACANCY NOTICE , WAS OPEN TO PERSONS WHO DID NOT HAVE A FULL MEDICAL TRAINING . SHE FURTHER COMPLAINS ABOUT THE UNJUSTIFIED NATURE OF THE STATEMENT OF REASONS ON WHICH THE DECISION TO TRANSFER HER WAS BASED IN SO FAR AS IT PURPORTS TO BE BASED ON THE FACT THAT THE APPLICANT DID NOT ' ' ADAPT HERSELF TO THE NEW DUTIES ASSIGNED TO HER ' ' PREVIOUSLY .

54 IN VIEW OF THE PREPARATORY INQUIRIES UNDERTAKEN BY THE COURT THOSE COMPLAINTS OF THE APPLICANT APPEAR TO BE WELL FOUNDED . IN THIS REGARD THE DECISIONS CHANGING THE APPLICANT ' S DUTIES WITHIN THE MEDICAL BRANCH AND THE DECISION TO TRANSFER HER COMPULSORILY SHOULD BE EXAMINED SEPARATELY BEFORE THE COMPLAINTS COMMON TO BOTH MEASURES ARE DEALT WITH .

THE ALTERATION OF THE APPLICANT ' S DUTIES WITHIN THE MEDICAL BRANCH

55 AS HAS ALREADY BEEN INDICATED , IT CANNOT BE DENIED THAT MEDICO-SOCIAL PROBLEMS EXIST IN THE WORK OF THE MEDICAL BRANCH OR THAT THE ADMINISTRATION HAS DISCRETION AS REGARDS THE ORGANIZATIONAL MEASURES TO BE ADOPTED TO RESOLVE THOSE PROBLEMS SATISFACTORILY . NEVERTHELESS , IN VIEW OF THE CIRCUMSTANCES , THE MEASURES TAKEN IN REGARD TO THE APPLICANT HAVE NO JUSTIFICATION .

56 IT SHOULD BE OBSERVED IN THIS REGARD THAT IT IS PRIMARILY A MATTER FOR THE ADMINISTRATION AND , MORE SPECIFICALLY , FOR THE HEAD OF THE MEDICAL BRANCH , TO DEFINE THE FUNCTIONS OF THE NEW ' ' MEDICO-SOCIAL ' ' UNIT ENVISAGED . THE ADMINISTRATION WAS RIGHT TO CONSULT THE APPLICANT ABOUT THE MATTER BUT IT COULD NOT TRANSFER THE RESPONSIBILITY FOR IT TO HER .

57 HOWEVER , IT APPEARS FROM THE FILE ON THE CASE THAT IN DEFINING THE ' ' MEDICO-SOCIAL ' ' UNIT THE ADMINISTRATION HAS NEVER GONE FURTHER THAN USING GENERAL FORMULAE . APART FROM THE FACT THAT A NUMBER OF SUBSIDIARY DUTIES WAS LISTED , THE LIST OF DUTIES SUBMITTED TO THE APPLICANT ON 14 MARCH 1979 BY THE DIRECTOR-GENERAL AND REPRODUCED IN DR SIDDONS ' S STAFF NOTE OF 28 MAY CONTAINS NO SPECIFIC INDICATION OF THE SCOPE OF THE CONCEPT OF ' ' SOCIAL MEDICINE ' ' . SIMILARLY , IN HIS LETTER OF 13 DECEMBER 1979 REJECTING THE APPLICANT ' S FIRST COMPLAINT , THE COMPETENT MEMBER OF THE COMMISSION RESTRICTS HIMSELF TO STRESSING THAT THE NEW DUTIES ' ' ARE IN THE FIELD OF PREVENTIVE AND SOCIAL MEDICINE AND INVOLVE IN PARTICULAR THE EXAMINATION OF INDIVIDUAL CASES PRESENTING BOTH SOCIAL AND MEDICAL PROBLEMS ' ' AND HE LATER ADDS THAT THE CREATION OF A MEDICO-SOCIAL UNIT , ' ' THE BASIC AIM OF WHICH IS TO ORGANIZE AND DEVELOP GENUINE SOCIAL MEDICINE FOR OFFICIALS ' ' , NATURALLY NECESSITATES NEW DUTIES ON THE PART OF THE DOCTOR RESPONSIBLE FOR THIS FIELD AND CONSEQUENTLY REQUIRES ' ' AN APPROPRIATE ALLOCATION OF DUTIES WITHIN THE MEDICAL BRANCH ' ' .

58 RATHER THAN DEFINING THE SCOPE OF THE NEW DUTIES , THE HEAD OF THE BRANCH INSISTENTLY ASKED THE APPLICANT TO DRAW UP A WORKING PLAN HERSELF . THE APPLICANT CANNOT BE REPROACHED FOR REFUSING TO COOPERATE IN DEFINING DUTIES THE CONTENT OF WHICH DID NOT SEEM CLEAR TO HER AND WHICH WERE FOR THE ADMINISTRATIVE AUTHORITY TO DETERMINE . THAT POINT WAS MOREOVER STRESSED IN THE LETTER OF 13 DECEMBER 1979 MENTIONED ABOVE IN WHICH IT IS STATED THAT MEASURES TO DEFINE PRACTICAL DUTIES ' ' ARE TAKEN BY THE SUPERIOR OFFICERS IN THE INTERESTS OF THE SERVICE ' ' .

59 THE SEQUENCE OF EVENTS AFTER THE APPLICANT WAS REMOVED FROM THE MEDICAL BRANCH SHOWS THAT THE ADMINISTRATION WAS NOT REALLY INTERESTED IN INSTITUTING A ' ' MEDICO-SOCIAL ' ' UNIT . THE INQUIRY HAS IN FACT DISCLOSED THAT , EXCEPT FOR THE DUTIES BELONGING TO THE HEAD OF BRANCH , THAT WORK WAS SUBSEQUENTLY ASSIGNED TO A VISITING DOCTOR APPOINTED ON A PART-TIME BASIS , WHO DEVOTED ONLY PART OF HIS WORKING TIME TO IT . IN SEPTEMBER 1980 THE SAME DOCTOR DREW UP A DRAFT PROPOSAL ENVISAGING GENUINE MEDICAL DUTIES TOGETHER WITH DUTIES DELEGATED EITHER TO SOCIAL WORKERS OR TO THE ADMINISTRATION , WHICH , IN THE CASE OF THE GENUINE MEDICAL DUTIES , DID NOT GO APPRECIABLY FURTHER THAN THE GENERAL INDICATIONS OF THE WORK INVOLVED WHICH HAD BEEN PREVIOUSLY GIVEN TO THE APPLICANT . IT BECAME APPARENT , MOREOVER , THAT AT THE DATE OF THE ORAL PROCEDURE THESE PROPOSALS HAD STILL NOT BEEN APPROVED BY THE HEAD OF THE BRANCH .

60 FINALLY , IT SHOULD BE NOTED THAT VACANCY NOTICE NO COM/947/80 , INTENDED TO SECURE A REPLACEMENT FOR THE APPLICANT IN THE MEDICAL BRANCH , MAKES NO REFERENCE TO ' ' SOCIAL MEDICINE ' ' WHILST IN THE DESCRIPTION OF DUTIES IT REFERS ONLY TO ' ' PREVENTIVE MEDICINE ' ' AND ' ' INDUSTRIAL MEDICINE ' ' . DURING THE INQUIRY THE COMMISSION STATED THAT THE MEDICAL OFFICER WHOM IT PLANNED TO RECRUIT WOULD NOT NECESSARILY BE PUT IN CHARGE OF THE FIELD OF ' ' SOCIAL MEDICINE ' ' PROPOSED TO THE APPLICANT BUT THE COMMISSION HAS NOT EXPLAINED HOW THAT DUTY WOULD BE PERFORMED BY ANOTHER PERSON OCCUPYING THAT POST .

61 IT FOLLOWS FROM THAT CONCORDANT EVIDENCE THAT IN MAKING THE APPLICANT RESPONSIBLE FOR INSTITUTING A ' ' MEDICO-SOCIAL ' ' UNIT THE ADMINISTRATION HAD NO SPECIFIC IDEA OF THE WORK INVOLVED AND THAT THE APPLICANT WAS THEREFORE ENTITLED TO REFUSE DUTIES WHICH SHE MIGHT RIGHTLY CONSIDER TO BE LACKING IN SUBSTANCE .

THE DECISION TO TRANSFER THE APPLICANT

62 IN VIEW OF THAT REFUSAL BY THE APPLICANT THE ADMINISTRATION DECIDED TO TRANSFER HER COMPULSORILY TO A POST OF PRINCIPAL ADMINISTRATOR IN DIRECTORATE-GENERAL XII FOR RESEARCH , SCIENCE AND EDUCATION , INVOLVING THE DUTIES DEFINED IN NOTICE OF COMPETITION NO COM/229/80 . AS WAS RECALLED ABOVE , THE ONLY REASON GIVEN FOR THAT TRANSFER WAS THAT THE APPLICANT HAD NOT ' ' ADAPTED HERSELF ' ' TO THE NEW DUTIES ASSIGNED TO HER IN THE MEDICAL BRANCH .

63 IT FOLLOWS FROM THE FOREGOING THAT SUCH A STATEMENT OF REASONS AMOUNTS TO AN UNJUSTIFIED SLUR ON THE APPLICANT IN VIEW OF THE INSUBSTANTIAL NATURE OF THE DUTIES WHICH SHE HAD BEEN PREVIOUSLY GIVEN SO THAT THE DECISION TO TRANSFER HER IS IN ANY EVENT LACKING IN A CORRECT STATEMENT OF THE GROUNDS ON WHICH IT IS BASED , CONTRARY TO THE REQUIREMENTS OF THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS .

64 IT SHOULD FURTHER BE OBSERVED THAT , JUDGING BY THE DESCRIPTION OF THE QUALIFICATIONS REQUIRED CONTAINED IN NOTICE OF COMPETITION NO COM/229/80 , THE DUTIES TO WHICH THE APPLICANT WAS TRANSFERRED DO NOT CORRESPOND EITHER TO THE APPLICANT ' S LEVEL OF TRAINING OR TO THE EXPERIENCE WHICH SHE HAD GAINED AFTER A LENGTHY PERIOD OF PRACTICE IN THE COMMISSION ' S MEDICAL BRANCH .

65 IT IS NOT IN FACT DENIED THAT THE POST IN QUESTION WAS OPEN TO PERSONS WITH NO REAL MEDICAL TRAINING OR AT ANY RATE ONLY AN INCOMPLETE TRAINING IN MEDICINE . EVEN THOUGH THE POST IN QUESTION MIGHT REASONABLY HAVE BEEN GIVEN TO A DOCTOR WHO HAD SUBMITTED HIS APPLICATION , IT CANNOT BE REGARDED AS PROPER FOR THE COMMISSION TO TRANSFER COMPULSORILY TO SUCH A POST AGAINST HER WILL AN OFFICIAL HAVING A SPECIALIZED MEDICAL TRAINING AND AS SUCH ELIGIBLE FOR DUTIES DIFFERENT IN QUALITY FROM THOSE ENVISAGED IN THE NOTICE OF COMPETITION IN QUESTION .

SOME COMPLAINTS COMMON TO THE REASSIGNMENT AND THE TRANSFER

66 FINALLY , IT IS NECESSARY TO CONSIDER THE APPLICANT ' S ARGUMENT THAT NEITHER THE DUTIES GIVEN TO HER UPON HER REASSIGNMENT WITHIN THE MEDICAL BRANCH NOR THOSE ASSIGNED TO HER AS A RESULT OF HER COMPULSORY TRANSFER WERE IN ANY WAY RELATED TO HER SPECIALIZED FIELD AND THE EXPERIENCE WHICH SHE HAD GAINED THROUGH WORKING IN THE MEDICAL BRANCH . SHE LAYS STRESS MORE PARTICULARLY ON THE FACT THAT THE EFFECT OF THE FIRST CHANGE OF DUTIES AND ESPECIALLY THAT OF THE SECOND WAS TO RESTRICT HER TO PURELY ADMINISTRATIVE WORK AND TO PREVENT HER FROM PRACTISING MEDICINE .

67 THE COMMISSION CONTENDS THAT ANY DOCTOR ENTERING THE SERVICE OF A COMMUNITY ADMINISTRATION MUST BE PREPARED TO ACCEPT ANY DUTIES OF A MEDICAL NATURE INHERENT IN THE ADMINISTRATION OF THE INSTITUTION , THAT IS TO SAY , EITHER ADMINISTRATIVE OR SCIENTIFIC . IT POINTS OUT THAT THE APPLICANT WAS ORIGINALLY RECRUITED BY THE EAEC TO PERFORM DUTIES OF THAT KIND AND THAT IT WAS ONLY AFTER HER TRANSFER TO THE MEDICAL BRANCH THAT SHE WAS GIVEN DUTIES PARTIALLY INVOLVING THE PRACTICE OF MEDICINE .

68 IT IS UNDOUBTEDLY TRUE THAT THE COMMUNITY ADMINISTRATION MUST BE ABLE TO PROCURE THE ASSISTANCE OF MEDICAL EXPERTS FOR THE PERFORMANCE OF A VARIETY OF TASKS ENTAILING EITHER WORK AKIN TO THE PRACTICE OF MEDICINE OR WORK OF AN ADMINISTRATIVE OR SCIENTIFIC NATURE AND THAT SOME DEGREE OF MOBILITY OF OFFICIALS IS THEREFORE DESIRABLE . HOWEVER , IN VIEW OF THE SPECIFIC CHARACTERISTICS OF THE MEDICAL PROFESSION , DIFFERENT PRINCIPLES MUST BE APPLIED TO THE PROBLEM DEPENDING ON WHETHER IT IS A MATTER OF AN OFFICIAL ' S BEING ASSIGNED TO A MEDICAL POST WHICH HE HAS CHOSEN VOLUNTARILY OR OF HIS BEING ASSIGNED TO ANOTHER POST AFTER A LENGTHY PERIOD OF WORK IN THE SERVICE OF THE COMMUNITY , ESPECIALLY IN THE CASE OF A COMPULSORY TRANSFER .

69 IT SHOULD BE OBSERVED IN THIS REGARD THAT , ALTHOUGH THE APPLICANT WAS ORIGINALLY RECRUITED TO CARRY OUT WORK PREDOMINANTLY SCIENTIFIC IN NATURE , THE FACT IS THAT FOR MOST OF HER CAREER SHE HAS 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 . THEREFORE THE COMMISSION WAS NOT ENTITLED , FOR REASONS FOR PURE ADMINISTRATIVE CONVENIENCE , TO ASSIGN THE APPLICANT TO DUTIES WHICH WERE MANIFESTLY INAPPROPRIATE TO HER TRAINING AND PREVIOUS SERVICE RECORD .

70 IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT IN VIEW OF THE CIRCUMSTANCES THE COMMISSION ' S CONDUCT TOWARDS THE APPLICANT WAS VERGING UPON THE ARBITRARY . THE DIFFERENCES OF OPINION EXISTING BETWEEN DR TURNER AND HER SUPERIORS , WHICH UNDOUBTEDLY EXISTED , SHOULD HAVE BEEN SETTLED BY OBJECTIVE EXAMINATION AND NOT BY MEANS OF INDIRECT MEASURES DESIGNED TO REMOVE THE APPLICANT FROM HER DUTIES , WITH NO INDICATION OF THE TRUE REASONS AND IN DISREGARD OF HER PROFESSIONAL INTERESTS FOUNDED ON AN HONOURABLE SERVICE RECORD IN THE COMMUNITY ADMINISTRATION .

71 IT THEREFORE APPEARS THAT THE SUBMISSION ALLEGING MISUSE OF POWERS IS WELL FOUNDED AS REGARDS THE WHOLE OF THE MEASURES TAKEN AGAINST THE APPLICANT , THAT IS TO SAY BOTH IN REGARD TO THE DECISION OF THE DIRECTOR-GENERAL FOR PERSONNEL AND ADMINISTRATION OF 4 MAY 1979 ASSIGNING THE APPLICANT NEW DUTIES WITHIN THE MEDICAL BRANCH FOR BRUSSELS STAFF AND THE DECISION OF 20 MAY 1980 TRANSFERRING HER . THOSE DECISIONS MUST THEREFORE BE ANNULLED .

72 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 .

THE ACTION FOR DAMAGES

73 IN SUPPORT OF HER CLAIM FOR DAMAGES THE APPLICANT CONTENDS IN SUBSTANCE THAT HER PROFESSIONAL REPUTATION AND STANDING IN PROFESSIONAL CIRCLES HAVE BEEN INJURED OWING TO THE FACT THAT SHE WAS REMOVED FROM HER MEDICAL RESPONSIBILITIES BY MEASURES WHICH SHE CONSIDERS TO BE A DISGUISED FORM OF DISCIPLINARY ACTION .

74 IN VIEW OF THE REASONING SET OUT ABOVE THIS JUDGMENT ITSELF CONSTITUTES APPROPRIATE REPARATION FOR ANY INJURY WHICH MAY HAVE BEEN DONE TO THE APPLICANT ' S PROFESSIONAL STANDING . THE CLAIM FOR DAMAGES THEREFORE HAS NO PURPOSE AND IT IS NOT NECESSARY TO ADJUDICATE UPON IT .

Decision on costs

75 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS BASICALLY FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS , INCLUDING THOSE OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES , WHICH WERE RESERVED BY THE ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF 3 JULY 1980 .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ANNULS 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 ;

2 . ORDERS THE COMMISSION TO PAY THE WHOLE OF THE COSTS , INCLUDING THOSE OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .