Judgment of the Court (First Chamber) of 16 June 1971. - Gianfranco Vistosi v Commission of the European Communities. - Case 61-70.



European Court reports 1971 Page 00535

Danish special edition Page 00145

Greek special edition Page 00869

Portuguese special edition Page 00211



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . COMMUNITY INSTITUTIONS - ADMINISTRATIVE DEPARTMENTS - POST - TRANSFER - DISCRETIONARY POWER OF THE ADMINISTRATION - NO CREATION OF NEW POST - TRANSFER OF THE OFFICIAL TOGETHER WITH HIS POST - NO VACANCY

2 . COMMUNITY INSTITUTIONS - ADMINISTRATIVE DEPARTMENTS - ORGANIZATIONAL POWER OF THE HIGHER AUTHORITIES - OBLIGATION TO RESPECT THE RIGHTS OF OFFICIALS

3 . OFFICIALS - DUTIES PERFORMED, GRADE AND POST - CORRESPONDENCE - POSSIBILITY OF THIS PRINCIPLE BEING INFRINGED BY THE WITHDRAWAL OF PART OF THE SERVICES WHICH ARE SUBJECT TO AN OFFICIAL' S AUTHORITY

( STAFF REGULATIONS OF THE EUROPEAN COMMUNITIES, ARTICLES 5 AND 7 )

Summary

1 . THE APPOINTING AUTHORITY MAY IN THE INTEREST OF THE SERVICE TRANSFER A POST FROM ONE DIRECTORATE-GENERAL TO ANOTHER WHERE IT CONSIDERS THAT SUCH A POST IS MORE USEFUL IN THE DEPARTMENT TO WHICH IT IS ALLOCATED THAN IN THAT FROM WHICH IT IS REMOVED . THERE IS NO CREATION OF A NEW POST WHERE THE POST IS TRANSFERRED WITHOUT ANY SUBSTANTIAL CHANGE IN THE DUTIES ATTACHING TO IT, NOR IS THERE A VACANCY WHERE THE TRANSFER OF THE POST COINCIDES WITH THE TRANSFER OF THE OFFICIAL WHO OCCUPIES IT .

2 . THE HIGHER AUTHORITY IS ALONE RESPONSIBLE FOR THE ORGANIZATION OF THE DEPARTMENTS WHICH IT MUST BE ABLE TO DETERMINE AND MODIFY ACCORDING TO THE EXIGENCIES OF THE SERVICE, WITHOUT PREJUDICE TO THE RIGHTS WHICH SERVANTS ENJOY UNDER THEIR STAFF REGULATIONS AND WHICH THEY CAN ASK THE COURT TO ENFORCE .

3 . IN PARTICULAR IT IS CLEAR FROM ARTICLES 5 AND 7 OF THE STAFF REGULATIONS, THAT AN OFFICIAL HAS THE RIGHT TO EXPECT THAT THE DUTIES WHICH ARE ASSIGNED TO HIM SHOULD AS A WHOLE BE IN KEEPING WITH THE POST WHICH CORRESPONDS TO THE GRADE WHICH HE OCCUPIES IN THE SCALE OF POSTS . WITHDRAWING FROM AN OFFICIAL ONE OR MORE OF THE DEPARTMENTS FOR WHICH HE WAS PREVIOUSLY RESPONSIBLE MAY IN CERTAIN CIRCUMSTANCES AMOUNT TO AN INFRINGEMENT OF THIS RIGHT .

Parties

IN CASE 61/70

GIANFRANCO VISTOSI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 9 AVENUE DES HETRES-ROUGES, WEZEMBEEK-OPPEM ( BELGIUM ), REPRESENTED AND ASSISTED BY MARCEL SLUSNY, ADVOCATE OF THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE, CENTRE LOUVIGNY, 34 B/IV RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, LOUIS DE LA FONTAINE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION APPOINTING MR LUCIANO ANGELINO AS ITALIAN LANGUAGE EDITOR OF THE PUBLICATIONS DIVISION IN THE DIRECTORATE FOR INFORMATION AND MEDIA OF THE DIRECTORATE-GENERAL FOR PRESS AND INFORMATION AND THE ANNULMENT OF THE DECISION BY WHICH THE APPLICANT WAS RELIEVED OF HIS DUTIES .

Grounds

1 BY APPLICATION LODGED ON 4 NOVEMBER 1970 THE APPLICANT BROUGHT BEFORE THE COURT AN APPLICATION FOR THE ANNULMENT OF THE DEFENDANT' S DECISION OF 6 MAY 1970 TRANSFERRING MR ANGELINO, AN OFFICIAL IN GRADE A4 WITH THE SPOKESMAN' S GROUP, TO THE DIRECTORATE-GENERAL FOR PRESS AND INFORMATION, PUBLICATIONS DIVISION, AND POSTING HIM TO ROME .

2 THIS DECISION IS SAID TO HAVE HAD THE EFFECT OF RELIEVING THE APPLICANT, WHO WAS AN ADMINISTRATOR IN GRADE A6 IN THAT DIVISION, OF HIS DUTIES AS ITALIAN LANGUAGE EDITOR OF PERIODIC AND NON-PERIODIC PUBLICATIONS OF THAT DIVISION OR OF THE PRESS OFFICE IN ROME, IN PARTICULAR IN SO FAR AS THE EDITING OF THE REVIEW " COMUNITA EUROPEE " IS CONCERNED .

3 THE APPLICANT ALLEGES IN THE FIRST PLACE THAT THE CONTESTED DECISION MUST BE ANNULLED BECAUSE NO VACANCY NOTICE HAD BEEN PUBLISHED, WHEREAS UNDER ARTICLE 4 OF THE STAFF REGULATIONS ANY VACANCY IN AN INSTITUTION SHALL BE NOTIFIED TO THE STAFF ONCE THE APPOINTING AUTHORITY DECIDES THAT A POST IS TO BE FILLED .

4 THE DEFENDANT REPLIES THAT IT DID NOT FILL A VACANCY BUT ONLY TRANSFERRED A POST BECAUSE IT WAS NECESSARY TO STRENGTHEN THE PUBLICATIONS DIVISION BY REASON OF THE INCREASE IN RELATING TO INFORMATION CONSEQUENT UPON THE DEVELOPMENT OF THE COMMUNITY' S ACTIVITIES .

5 THE APPOINTING AUTHORITY MAY IN THE INTEREST OF THE SERVICE TRANSFER A POST FROM ONE DIRECTORATE-GENERAL TO ANOTHER WHERE IT CONSIDERS THAT SUCH A POST IS MORE USEFUL IN THE DEPARTMENT TO WHICH IT IS ALLOCATED THAN IN THAT FROM WHICH IT IS REMOVED .

6 WHERE THE POST IS TRANSFERRED WITHOUT ANY SUBSTANTIAL CHANGE IN THE DUTIES ATTACHING TO IT, IT DOES NOT AMOUNT TO THE CREATION OF A NEW POST .

7 BESIDES, WHERE THE OFFICIAL WHO OCCUPIED THE TRANSFERRED POST IS TRANSFERRED TOGETHER WITH IT THERE IS NO VACANCY, NOR CONSEQUENTLY IS THERE AN OBLIGATION TO IMPLEMENT THE PROCEDURE PROVIDED FOR SUCH A CASE .

8 IN THE PRESENT CASE THE DEFENDANT STATES THAT THE POST HELD BY MR ANGELINO WITH THE SPOKESMAN' S GROUP AND THE POST WHICH HE HOLDS IN THE PUBLICATIONS DIVISION WERE SIMILAR .

9 THE APPLICANT HAS SUBMITTED NOTHING CAPABLE OF INVALIDATING THIS STATEMENT .

10 BESIDES, CONTRARY TO THE APPLICANT' S ALLEGATIONS, IT APPEARS FROM THE COURT FILE THAT THE POST TRANSFERRED REALLY WENT TO STRENGTHEN THE STAFF OF THE PUBLICATIONS DIVISION .

11 ACCORDINGLY THERE WAS NO NEED FOR A VACANCY NOTICE TO BE PUBLISHED .

12 THE SUBMISSION MUST THEREFORE BE REJECTED .

13 THE APPLICANT FURTHER ALLEGES THAT CONSEQUENT UPON THE TRANSFER IN QUESTION HE WAS DISCHARGED FROM HIS JOB AS EDITOR OF THE REVIEW " COMUNITA EUROPEE " , THUS IN FACT RELIEVING HIM OF HIS DUTIES WITHOUT NEW TASKS BEING ENTRUSTED TO HIM .

14 THE HIGHER AUTHORITY ALONE IS RESPONSIBLE FOR THE ORGANIZATION OF THE DEPARTMENTS WHICH IT MUST BE ABLE TO DETERMINE AND MODIFY ACCORDING TO THE EXIGENCES, OF THE SERVICE, WITHOUT PREJUDICE TO THE RIGHTS WHICH SERVANTS ENJOY UNDER THEIR STAFF REGULATIONS AND WHICH THEY CAN ASK THE COURT TO ENFORCE .

15 IN PARTICULAR IT IS CLEAR FROM ARTICLES 5 AND 7 OF THE STAFF REGULATIONS, THAT AN OFFICIAL HAS THE RIGHT TO EXPECT THAT THE DUTIES WHICH ARE ASSIGNED TO HIM SHOULD AS A WHOLE BE IN KEEPING WITH THE POST WHICH CORRESPONDS TO THE GRADE WHICH HE OCCUPIES IN THE SCALE OF POSTS .

16 WITHDRAWING FROM AN OFFICIAL ONE OR MORE OF THE DEPARTMENTS FOR WHICH HE WAS PREVIOUSLY RESPONSIBLE MAY IN CERTAIN CIRCUMSTANCES AMOUNT TO AN INFRINGEMENT OF THIS RIGHT .

17 WHILST IT IS CORRECT THAT THE APPLICANT IS NO LONGER ENTRUSTED WITH THE EDITING OF THE REVIEW " COMUNITA EUROPEE " IT IS NO LESS CLEAR THAT SINCE THIS TASK CAME TO AN END HE HAS CARRIED OUT OTHER EDITORIAL ACTIVITIES IN THE ITALIAN LANGUAGE .

18 WHILST THIS WORK DIFFERS FROM THAT PREVIOUSLY DONE, THERE IS NEVERTHELESS NOTHING TO SHOW THAT IT IS NOT IN CONFORMITY WITH HIS GRADE .

19 THE SUBMISSION MUST ACCORDINGLY BE REJECTED .

20 THE APPLICANT GOES ON TO ALLEGE THAT THE CONTESTED MEASURE OUGHT TO BE ANNULLED BECAUSE IT WAS NOT NOTIFIED TO HIM AND BECAUSE NO REASONS FOR IT WERE GIVEN .

21 UNDER ARTICLE 25 OF THE STAFF REGULATIONS ANY DECISION RELATING TO A SPECIFIC INDIVIDUAL MUST BE COMMUNICATED IN WRITING TO THE OFFICIAL CONCERNED .

22 IN THE PRESENT CASE THE CONTESTED DECISION IN QUESTION ONLY HAD TO BE NOTIFIED TO THE OFFICIAL TO WHOM IT RELATED .

23 UNDER THE SAID ARTICLE 25 IT ONLY HAD TO STATE THE REASONS ON WHICH IT WAS BASED AS REGARDS THE ADDRESSEE THEREOF IF IT ADVERSELY AFFECTED HIM .

24 THE SUBMISSION IS THEREFORE UNFOUNDED .

25 FINALLY, THE APPLICANT DOES NOT ESTABLISH IN WHAT MANNER THE ACT OF POSTING MR ANGELINO TO A POST IN THE PUBLICATIONS DIVISION WHICH CORRESPONDED TO HIS GRADE CONSTITUTED A MISUSE OF POWERS .

26 IN THE ABSENCE OF PRECISE ALLEGATIONS ON THIS POINT THIS SUBMISSION MUST LIKEWISE BE REJECTED .

27 THE APPLICATION MUST THEREFORE BE DISMISSED .

Decision on costs

28 UNDER THE PROVISIONS OF ARTICLES 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER THE TERMS OF ARTICLE 70 OF THE SAID RULES, THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY EMPLOYEES OF THE COMMUNITY ARE TO BE BORNE BY SUCH INSTITUTIONS .

29 THE APPLICANT HAS FAILED IN HIS ACTION .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .