JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

7 February 2007

Case T-339/03

Gabrielle Clotuche

v

Commission of the European Communities

(Officials – Reassignment of a Director as a Principal Adviser – Interest of the service – Equivalence of posts – Reorganisation of Eurostat – Action for annulment – Action for damages)

Application: first, for annulment of the Commission’s decision of 9 July 2003 to reassign the applicant from a post as Director to a post as Principal Adviser and of the Commission’s decision of 1 October 2003 reorganising Eurostat, in so far as it does not include any measure reassigning the applicant as a Director, and, secondly, compensation for the non-material harm suffered.

Held: The Commission is ordered to pay the applicant the sum of EUR 1 by way of damages for breach of administrative duty. The action is dismissed as to the remainder. The Commission is ordered to bear its own costs inclusive of those of the proceedings for interim relief before the Court of First Instance, and one fifth of the costs incurred by the applicant inclusive of those of the proceedings for interim relief before the Court of First Instance. The applicant is ordered to bear four fifths of its own costs inclusive of those of the proceedings for interim relief before the Court of First Instance.

Summary

1. Officials – Transfer – Reassignment – Difference

(Staff Regulations, Arts 4, 7(1) and 29)

2. Officials – Actions – Interest in bringing proceedings

(Staff Regulations, Arts 38, 90 and 91)

3. Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

4. Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Arts 5(4) and 7(1))

5. Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

6. Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

7. Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

8. Officials – Actions – Act adversely affecting an official – Definition – Reorganisation of the departments of a directorate-general after the conclusion of inquiries into irregularities committed within it

(Staff Regulations, Arts 7(1), 90 and 91)

9. Officials – Principles – Protection of legitimate expectations

10. Officials – Non-contractual liability of the institutions – Breach of administrative duty

1. It is clear from the general scheme of the Staff Regulations that there is a transfer in the strict sense of the term only where an official is transferred to a vacant post. It follows that any transfer, properly so-called, is subject to the formalities prescribed by Articles 4 and 29 of the Staff Regulations. By contrast, those formalities do not apply when an official is reassigned with his post because such a transfer does not give rise to a vacant post.

However, decisions to reassign are subject, like transfers, as regards the protection of the rights and legitimate interests of the officials concerned, to the rules of Article 7(1) of the Staff Regulations inasmuch as, inter alia, the reassignment of officials may take place only in the interests of the service and in conformity with the principle of equivalence of posts.

(see paras 31, 35, 47)

See: 161/80 and 162/80 Carbognani and Coda Zabetta v Commission [1981] ECR 543, para. 21; 19/87 Hecq v Commission [1988] ECR 1681, para. 6; C‑116/88 and C‑149/88 Hecq v Commission [1990] ECR I‑599, para. 11; C‑398/93 P Rasmussen v Commission [1994] ECR I‑4043, para. 11; T‑98/96 Costacurta v Commission [1998] ECR-SC I‑A‑21 and II‑49, para. 36; T‑23/96 De Persio v Commission [1998] ECR-SC I‑A‑483 and II‑1413, para. 79; T‑100/00 Campoli v Commission [2001] ECR-SC I‑A‑71 and II‑347, para. 29; T‑103/01 Cwik v Commission [2002] ECR-SC I‑A‑229 and II‑1137, para. 30

2. An official is entitled to apply for the annulment of a decision to reassign him even if he was subsequently seconded in the interests of the service. Provided that, when such a secondment ends, the official is at once reinstated in the post he formerly occupied, he retains a personal interest in applying for the annulment of the contested decision, because if it were annulled he would be deemed never to have left the post he occupied before being reassigned.

(see paras 40-43)

3. Where it becomes apparent that irregularities have been committed within a directorate-general, the administration does not commit a manifest error of assessment in considering that it is justified in the interest of the service to withdraw all the directors from their management duties and to reassign them to positions as principal advisers in order to ensure that the inquiries into those irregularities, and particularly the investigations to assess any part they may have played in those irregularities, are conducted impartially and properly. It makes no difference in that respect, given that the objective is not to punish the directors or to prevent the irregularities from continuing, that the financial channels in question were under the control of the heads of unit and that a director, because of the date on which he took up his post, could not have been involved in the irregularities. Moreover, the reassignment of that director does not infringe the principle of equal treatment, since he is in an identical situation to that of the other directors, who are also not suspected of having been involved in the irregularities committed.

That assessment is not called into question by the allegedly political or media-friendly nature of the reassignment decisions, since because the interest of the service alone was enough to justify the decisions, any incidental considerations that might constitute grounds for adopting them do not, in any event, affect their lawfulness.

(see paras 70, 76-77, 107)

4. A decision to reassign an official to a post which, according to the General Provisions for Implementing Article 5(4) of the Staff Regulations adopted by his employer institution, corresponds to the same grade and the same basic post as the position he previously occupied, does not infringe the rule of the equivalence of posts or the rule of correspondence between grade and post. Objectively, since the perception of the person concerned is irrelevant, such a post does not appear, as such, to be on a lower level than the previous position.

The fact that the reassignment decision moving a grade A 2 official from a post as director to a post as principal adviser does not contain any job description for the post to which he is reassigned, and the fact that the post in question is newly created, are not sufficient, taking account of that newness and the very nature of the duties of a principal adviser, to prove that the equivalence of posts has not been respected.

(see paras 93, 95, 97, 101-102)

5. The reassignment in the interest of the service of all the directors in a directorate-general to positions as principal advisers in order to ensure that the inquiries into irregularities committed within that directorate-general, and particularly the investigations to assess any part they may have played in those irregularities, are conducted impartially and properly is a measure of a general and impersonal nature which precludes any desire on the part of the administration to penalise the individual conduct of the officials reassigned. Where those officials have a new post corresponding to their grade, they are not justified in claiming to have been penalised, or in accusing the administration of having committed a misuse of powers or abuse of process in not initiating a disciplinary procedure against them.

(see paras 127, 129)

6. The lawfulness of a reassignment decision taken in accordance with the interest of the service is not, in itself, affected by the fact that its disclosure to the public by the administration might have wrongly given the impression that the reassigned official might be guilty or, at the very least, suspected of having been involved in irregularities. That fact may nevertheless be a relevant factor in the consideration of a claim for compensation brought by the official concerned.

(see paras 145-146)

7. Provided that a mere measure of internal organisation taken in the interest of the service, such as a reassignment, does not affect the official’s position under the Staff Regulations or infringe the principle that the post to which he is assigned should correspond to his grade, it need be neither preceded by a hearing of the official concerned nor accompanied by a statement of reasons.

(see paras 147, 153, 195)

See: C-116/88 and C-149/88 Hecq v Commission, para. 14; Cwik v Commission, para. 62

8. Where, following the conclusion of investigations into irregularities committed within a directorate-general, the administration decides to reorganise its departments in two ways, first by reducing the number of directorates and changing their responsibilities, as well as publishing notices of vacancy in order to fill the new directors’ posts by transfer, promotion or external appointment, and secondly through a series of individual decisions maintaining the reassignment of the former directors, decided previously with a view to ensuring the successful conduct of the investigations, the first cannot adversely affect those former directors, while the second adversely affects them in that it maintains their reassignment for a reason – the need to reorganise the departments – which is different from the one which justified their provisional reassignment, so that it cannot be regarded as mere confirmation.

(see para. 180)

9. The provisional nature of a decision to reassign an official and the fact that reinstatement in his original post was one of the possibilities open to the administration do not constitute precise, unconditional and consistent guarantees giving rise to legitimate expectations of reinstatement, so that the decision to maintain the official’s reassignment for reasons which differ from those justifying his initial reassignment cannot be contrary to the principle of the protection of legitimate expectations.

(see paras 201-202, 204)

10. The administration commits a breach of administrative duty giving rise to its liability where it gives the impression, in a press release freely available to the public, that an official who is being reassigned in the interest of the service was involved in certain irregularities, even if that reassignment decision is not, in itself, unlawful. Such a breach causes non-material damage to the official in question in that he is placed in the situation of having continually to justify himself to his colleagues and to persons outside the department.

(see paras 219-221)