Judgment of the Court (Second Chamber) of 27 June 1973. - Walter Kley v Commission of the European Communities. - Case 35-72.



European Court reports 1973 Page 00679

Greek special edition Page 00593

Portuguese special edition Page 00281



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - RECRUITMENT - TRANSFER WITHIN THE INSTITUTION - ACT ADVERSELY AFFECTING OFFICIAL - CRITERIA - STATEMENT OF REASONS

( STAFF REGULATIONS, ART . 25, ART . 91 )

2 . OFFICIALS - ABILITY - ASSESSMENT - COMPETENCE OF ADMINISTRATION

( STAFF REGULATIONS, ART . 43 )

Summary

1 . EVEN IF A DECISION ON TRANSFER WITHIN THE INSTITUTION DOES NOT AFFECT THE MATERIAL INTERESTS OR RANK OF AN OFFICIAL IT MAY, HAVING REGARD TO THE NATURE OF THE DUTIES IN QUESTION AND TO THE CIRCUMSTANCES, ADVERSELY AFFECT THE MORALE AND FUTURE PROSPECTS OF THE EMPLOYEE CONCERNED .

A TRANSFER DECISION TAKEN AGAINST THE WISHES OF THE PERSON CONCERNED IS AN ACT ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLE 25 OF THE REGULATIONS AND THE REASONS ON WHICH IT IS BASED MUST THEREFORE BE STATED .

2 . ASSESSMENT OF THE ABILITY OF AN OFFICIAL IS A MATTER WITHIN THE COMPETENCE OF THE ADMINISTRATION .

Parties

IN CASE 35/72

WALTER KLEY, AN OFFICIAL OF THE EUROPEAN ATOMIC ENERGY COMMUNITY RESIDING AT B 8 VIA ESPERIA, ISPRA ( VARESE, ITALY ), REPRESENTED BY ERNEST ARENDT, AVOCAT-AVOUE, ASSISTED BY NICOLAS DECKER, AVOCAT, BOTH RESIDING IN LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ME ARENDT, 34B RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOSEPH GRIESMAR, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER EMILE REUTER, DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF THE DECISION OF 11 JANUARY 1972 RELIEVING THE APPLICANT OF HIS OFFICE AS HEAD OF DIVISION OF THE " PHYSICS DIVISION " AND APPOINTING HIM ADVISER TO THE " SCIENTIFIC DIRECTORATE " OF THE JOINT RESEARCH CENTRE, ISPRA,

Grounds

1 THE ACTION IS FOR ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT LODGED BY THE APPLICANT ON 10 FEBRUARY 1972 AGAINST THE DECISION OF 11 JANUARY 1972 BY THE DIRECTOR-GENERAL OF THE ISPRA JOINT RESEARCH CENTRE RELIEVING HIM OF HIS DUTIES AS HEAD OF DIVISION OF THE PHYSICS DIVISION IN ORDER TO APPOINT HIM AS ADVISER TO THE SCIENTIFIC DIRECTORATE .

ADMISSIBILITY

2 THE COMMISSION PLEADS THAT THE ACTION IS INADMISSIBLE ON THE GROUND THAT IT IS DIRECTED AGAINST AN ACT NOT ADVERSELY AFFECTING THE APPLICANT WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS .

3 THE TRANSFER DECISION, IT IS CONTENDED, DID NOT INVOLVE FOR THE APPLICANT ANY MODIFICATION OF HIS MATERIAL INTERESTS OR ANY REDUCTION IN HIS RANK IN THE HIERARCHY, AND CONSEQUENTLY IT DID NOT ADVERSELY AFFECT HIS LEGAL POSITION .

4 EVEN THOUGH A TRANSFER DECISION MAY NOT AFFECT THE MATERIAL INTERESTS OR THE RANK OF AN OFFICIAL IT MAY, HAVING REGARD TO THE NATURE OF THE DUTY IN QUESTION, AND TO THE CIRCUMSTANCES, ADVERSELY AFFECT THE MORALE AND THE FUTURE PROSPECTS OF THE EMPLOYEE CONCERNED .

5 IN THESE CIRCUMSTANCES, IT CANNOT BE CONSIDERED A PRIORI THAT SUCH A DECISION IS NOT CAPABLE OF ADVERSELY AFFECTING THE PERSON CONCERNED .

6 THE OBJECTION MUST THEREFORE BE REJECTED .

MERITS

AS TO THE STATEMENT OF REASONS IN THE DECISION

7 IN ACCORDANCE WITH ARTICLE 25 OF THE REGULATIONS, ANY DECISION ADVERSELY AFFECTING AN OFFICIAL SHALL STATE THE REASONS ON WHICH IT IS BASED .

8 A TRANSFER DECISION, CONTRARY TO THE WISHES OF THE PERSON CONCERNED, FOR THE REASONS SET OUT ABOVE, ADVERSELY AFFECTS AN OFFICIAL WITHIN THE MEANING OF THAT ARTICLE AND THE REASONS ON WHICH IT IS BASED MUST THEREFORE BE STATED .

9 THE APPLICANT MAINTAINS THAT THE REASONS GIVEN FOR THE CONTESTED DECISION DO NOT COMPLY WITH THE REQUIREMENTS OF ARTICLE 25 OF THE REGULATIONS, INASMUCH AS THEY ARE NEITHER COMPLETE NOR IN ACCORDANCE WITH THE FACTS;

10 THAT THE ALLEGATION IN THE MEMORANDUM BRINGING THE SAID DECISION TO THE NOTICE OF THE APPLICANT AND ACCORDING TO WHICH HE HAD NOT MUCH INTEREST IN " ADMINISTRATIVE DUTIES " IS REFUTED BY THE FACT THAT FOR TEN YEARS PAST HE HAD CARRIED OUT ADMINISTRATIVE RESPONSIBILITIES WITH DISTINCTION;

11 THAT IN REALITY THE SAID DECISION WAS BASED ON HIS REFUSAL TO CARRY OUT THE DECISION OF THE DIRECTOR-GENERAL RELATING TO THE TRANSFER OF MEMBERS OF THE EXPERIMENTAL PHYSICS SECTION AND ON HIS REFUSAL TO ACCEPT RESPONSIBILITY FOR THE ISPRA-I RESEARCH REACTOR;

12 THAT ON 10 JANUARY 1972 THE DIRECTOR-GENERAL JUSTIFIED HIS DECISION BY REFERRING TO THE ATTITUDE TAKEN BY THE APPLICANT WITH REGARD TO THE REORGANIZATION OF THE CENTRE; AND

13 THAT ON THE OCCASION OF AN INTERVIEW WITH RESEARCH WORKERS FROM THE CENTRE ON 26 JANUARY 1972, THE DIRECTOR-GENERAL GAVE AS THE REASON FOR HIS DECISION THE FLOUTING OF HIS AUTHORITY ON TWO OCCASIONS .

14 THESE ALLEGATIONS, WHICH WERE NOT EXPLICITLY DENIED BY THE DEFENDANT, WERE SUBSTANTIALLY CONFIRMED IN THE COURSE OF THE ORAL PROCEDURE BEFORE THE COURT .

15 IT IS MOREOVER REASONABLE TO SUPPOSE THAT THE ATTITUDE OF THE APPLICANT CONSTITUTED A DETERMINATIVE FACTOR IN THE DECISION .

16 TO DECIDE WHETHER THE REQUIREMENTS OF ARTICLE 25 WERE COMPLIED WITH, IT IS APPROPRIATE TO CONSIDER THE CIRCUMSTANCES IN WHICH THE CONTESTED DECISION WAS TAKEN .

17 THE DOCUMENTS IN THE CASE REVEAL THE EXISTENCE OF A FUNDAMENTAL DIVERGENCE OF OPINION BETWEEN THE APPLICANT AND THE DIRECTOR-GENERAL WITH REGARD TO THE PLANS FOR REORGANIZATION OF THE CENTRE AND A FREQUENTLY UNCOMPROMISING ATTITUDE ON THE PART OF THE APPLICANT .

18 THE APPLICANT DECLARED HIMSELF TO HAVE NO INTEREST IN THE EXECUTION OF THE PLANS OF THE DIRECTOR-GENERAL, AT LEAST IN SO FAR AS THE MANAGEMENT OF THE ISPRA-I REACTOR WAS CONCERNED .

19 IN THE CIRCUMSTANCES THE DESCRIPTION OF THE ATTITUDE OF THE APPLICANT BY REFERENCE TO HIS LACK OF INTEREST IN ADMINISTRATIVE DUTIES WAS A REASONABLE CONCLUSION AND ONE WHICH WAS, MOREOVER, EXPRESSED WITH MUCH DISCRETION .

20 IN SPITE, THEREFORE, OF THE VERY ELLIPTICAL FORM OF THE STATEMENT OF REASONS, THE CONTESTED DECISION SATISFIES THE REQUIREMENTS OF ARTICLE 25 .

21 THIS PLEA MUST BE REJECTED .

AS TO THE CONTRAVENTION OF ARTICLES 5 AND 7 AND ANNEX I TO THE REGULATIONS

22 THE APPLICANT QUOTES ARTICLE 7 OF THE REGULATIONS, ACCORDING TO WHICH AN OFFICIAL MUST BE ASSIGNED TO A POST IN HIS CATEGORY OR SERVICE WHICH CORRESPONDS TO HIS GRADE, AND STATES THAT THE DUTIES ENTRUSTED TO HIM DID NOT CORRESPOND TO HIS GRADE .

23 IN THIS RESPECT THE APPLICANT, WHILST ADMITTING THAT THE POST OF ADVISER TO THE SCIENTIFIC DIRECTORATE CORRESPONDS TECHNICALLY TO HIS GRADE, MAINTAINS THAT HIS NEW POST IS WITHOUT GENUINE CONTENT; AND

24 THAT IT HAD NOT BEEN PROVIDED FOR IN THE ESTABLISHMENT PLAN, BUT HAD BEEN CREATED TO SERVE AS A " SIDING " FOR HIM IN CONTRAVENTION OF ARTICLE 5 .

25 IT APPEARS THAT THE PRINCIPAL DUTY WHICH THE DIRECTOR-GENERAL INTENDED TO ASSIGN TO THE APPLICANT IN HIS NEW POST CONSISTED IN PROCEEDING WITH THE COORDINATION OF THE OPERATIONS OF THE WORKING GROUPS WITHIN THE FRAMEWORK OF THE EXPERIMENTAL PROGRAMME BOUND UP WITH THE USE OF THE SORA REACTOR AND WITH THE PRESENTATION OF A COMPREHENSIVE REPORT REGARDING THESE OPERATIONS .

26 THE APPLICANT REFUSED TO UNDERTAKE THIS WORK ON THE GROUND THAT, FROM THE POINT OF VIEW OF ORGANIZATION, AS THE METHOD CONSISTED IN WORKING OUT A COMPREHENSIVE REPORT WITHOUT HAVING ANY AUTHORITY OVER THE RESEARCH WORKERS INVOLVED OR ANY DIRECT RESPONSIBILITY FOR THEM, THE SAID METHOD WOULD BE DEFECTIVE .

27 IN THESE CIRCUMSTANCES IT WAS NECESSARY TO ENTRUST THE WORK WHICH THE APPLICANT REFUSED TO THE ASSISTANT SCIENTIFIC DIRECTOR, WHO DULY PRODUCED A FULL REPORT .

28 THE APPLICANT HAS BY NO MEANS ESTABLISHED THAT THIS WORK WOULD HAVE BEEN OF A LEVEL MANIFESTLY INFERIOR TO THE POST CORRESPONDING TO HIS GRADE, BUT HAS CONFINED HIMSELF TO STATING THE REASONS FOR WHICH HE CONSIDERED IT AS NOT CONSONANT WITH HIS ABILITIES .

29 ASSESSMENT OF THE ABILITY OF AN OFFICIAL IS A MATTER WITHIN THE COMPETENCE OF THE ADMINISTRATION .

30 EVEN IF, THEREFORE, THE POST OF ADVISER HAD BEEN CREATED WITH THE SOLE OBJECT OF WITHDRAWING FROM THE APPLICANT DIRECT RESPONSIBILITY FOR THE PHYSICS DIVISION, AND EVEN IF HIS NEW DUTIES WERE NOT DEALT WITH IN THE ESTABLISHMENT PLAN, THIS FACT DOES NOT INDICATE A LACK OF CORRESPONDENCE BETWEEN THE GRADE AND THE POST OF THE APPLICANT .

31 THIS PLEA MUST BE REJECTED .

AS TO MISUSE OF POWERS

32 ACCORDING TO THE APPLICANT, A TRANSFER DECISION MAY BE TAINTED WITH MISUSE OF POWERS IF IT APPEARS, ON THE BASIS OF OBJECTIVE, RELEVANT AND CONCORDANT EVIDENCE, TO HAVE BEEN TAKEN FOR PURPOSES OTHER THAN THOSE INDICATED .

33 THE APPLICANT SEES SUCH EVIDENCE IN THE REQUEST OF THE DIRECTOR-GENERAL TO THE EFFECT THAT DISCIPLINARY MEASURES BE TAKEN WITH REGARD TO HIM AND IN THE FACT THAT THIS REQUEST WAS WITHDRAWN ON THE VERY DAY ON WHICH THE DIRECTOR-GENERAL TOOK THE DECISION COMPLAINED OF .

34 HE MAINTAINS THAT THIS FACT DEMONSTRATES THAT THE TRANSFER WAS IN REALITY A DISGUISED DISCIPLINARY MEASURE; AND

35 THAT THE DIRECTOR-GENERAL HAD ADOPTED SUCH DISCIPLINARY MEASURE BY REASON OF THE FACT THAT THE APPLICANT HAD OPPOSED HIS PLANS FOR THE REORGANIZATION OF THE CENTRE .

36 THE ATTITUDE ADOPTED BY THE APPLICANT WITH REGARD TO THE SAID PLANS CONSTITUTED A REAL OBSTACLE TO THE REORGANIZATION OF THE WORK AT ISPRA, FOR WHICH THE DIRECTOR-GENERAL WAS RESPONSIBLE IN HIS CAPACITY AS SUPERIOR IN THE CHAIN OF COMMAND .

37 WHATEVER MAY HAVE BEEN THE JUSTIFICATION FOR THE REQUEST FOR THE ADOPTION OF DISCIPLINARY MEASURES, THE LATER WITHDRAWAL OF THE LATTER AND THE DECISION TO TRANSFER THE APPLICANT MAY BE REGARDED AS AN ALTERNATIVE SOLUTION IN THE INTERESTS OF THE DEPARTMENT, COMING WITHIN THE COMPETENCE OF THE DIRECTOR-GENERAL .

38 THE DIRECTOR-GENERAL WAS ENTITLED TO DRAW THE CONCLUSION THAT THE APPLICANT WAS NOT IN A POSITION TO ACCEPT RESPONSIBILITY FOR THE EXECUTION OF PLANS WHICH HE HAD SO VEHEMENTLY OPPOSED .

39 THE APPLICANT HAS NOT PROVIDED IN SUPPORT OF HIS ALLEGATIONS ANY COGENT EVIDENCE MAKING IT POSSIBLE TO SUPPOSE THAT THE DIRECTOR OF THE CENTRE, WHO, MOREOVER, WAS ACTING INTRA VIRES, HAD USED HIS POWERS FOR A PURPOSE OTHER THAN THE INTERESTS OF THE DEPARTMENT .

40 THIS PLEA MUST THEREFORE BE REJECTED .

Decision on costs

41 THE APPLICANT HAS FAILED IN HIS ACTION .

42 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

43 HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES, THE COSTS INCURRED BY INSTITUTIONS IN ACTIONS BROUGHT BY EMPLOYEES OF THE COMMUNITY ARE TO BE BORNE BY SUCH INSTITUTIONS .

Operative part

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE ACTION;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .