JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

25 January 2007

Case F-55/06

Augusto de Albuquerque

v

Commission of the European Communities

(Officials – Reassignment – Article 7(1) of the Staff Regulations – Manifest error of assessment – Principle of equal treatment – Abuse of power – Interest of the service)

Application: brought under Articles 236 EC and 152 EA, in which Mr de Albuquerque seeks annulment of the decision of 23 September 2005 of the Director-General of the Commission’s Directorate-General for the Information Society and the Media transferring him to be head of unit G 2 ‘Micro and nanosystems’, and of the appointing authority’s decision of 2 February 2006 rejecting his complaint against the contested decision.

Held: The action is dismissed. The parties are to bear their own costs.

Summary

1. Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

2. Procedure – Proof – Appeal against a decision to reassign an official

3. Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

4. Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1))

1. Provided that a decision has not been judged to be contrary to the interests of the service, there can be no question of any misuse of powers. That is true of a decision to reassign an official taken in order to put an end to an administrative situation that has become untenable, where internal relationship difficulties cause tensions prejudicial to the proper functioning of the service. It is not important, in this respect, to determine who is responsible for the incidents in question or even whether the allegations made are well founded.

(see paras 60-61, 89)

See:

124/78 List v Commission [1979] ECR 2499, para. 13; 176/82 Nebe v Commission [1983] ECR 2475, para. 25; C-116/88 and C-149/88 Hecq v Commission [1990] ECR I‑599, para. 22; C-294/95 P Ojha v Commission [1996] ECR I‑5863, para. 41

T-59/91 and T-79/91 Eppe v Commission [1992] ECR II‑2061, para. 57; T-98/96 Costacurta v Commission [1998] ECR-SC I‑A‑21 and II‑49, para. 39; T-78/96 and T-170/96 W v Commission [1998] ECR-SC I‑A‑239 and II‑745, para. 88; T‑131/97 Gómez de Enterría y Sanchez v Parliament [1998] ECR-SC I‑A‑613 and II‑1855, para. 62; T-100/00 Campoli v Commission [2001] ECR-SC I‑A‑71 and II‑347, paras 45 and 63; T-76/03 Meister v OHIM [2004] ECR-SC I‑A‑325 and II‑1477, paras 79 and 80; T-236/02 Marcuccio v Commission [2005] ECR‑SC I‑A‑365 and II‑1621, para. 182

2. For the purpose of its defence and, in particular, in order to demonstrate the merits of the grounds cited in support of a reassignment decision contested before the Community judicature, the administration may reasonably refer to a note from the applicant revealing the existence of tension prejudicial to the proper functioning of the service, even if that note, marked ‘personal and confidential’, was not formally submitted to the addressee, the applicant’s immediate superior, but was sent by the applicant to other senior staff in the department, since those circumstances cannot deprive it of evidential value.

(see para. 64)

See:

T-353/94 Postbank v Commission [1996] ECR II‑921, paras 67 and 68

3. The fact that a decision to reassign an official in the interest of the service, as a result of relationship difficulties with his immediate superiors, was combined with the reassignment of other officials in a compulsory mobility operation provided for in an internal directive of the administration is not capable of undermining its legality.

(see para. 70)

4. In a reassignment involving a number of officials, one of whom is being reassigned in the interest of the service as a result of relationship difficulties with his immediate superiors, while the others are being reassigned in a compulsory mobility operation provided for in an internal directive of the administration, no comparison is possible between the former and the latter, who, not being involved in a personal conflict, are in a different situation. The fact that the administration took account of a refusal to be reassigned to a particular post by an official for compulsory mobility reasons, but not of the same refusal by an official reassigned in the interest of the service, does not therefore constitute discrimination.

(see paras 92, 94)