Keywords

Summary



Keywords

1. Officials ° Decision adversely affecting an official ° Reassignment ° Duty to state reasons ° Scope

(Staff Regulations of Officials, Art. 25, second para.)

2. Officials ° Organization of departments ° Assignment of staff ° Discretion of the administration ° Limits ° Interests of the service ° Compliance with principle that the post to which an official is assigned should correspond to his grade

(Staff Regulations of Officials, Art. 7(1))

3. Appeals ° Pleas in law ° Grounds of a judgment vitiated by an infringement of Community law ° Operative part well founded on other legal grounds ° Dismissal

4. Officials ° Administration' s duty to provide assistance ° Conditions

(Staff Regulations of Officials, Art. 24)

5. Officials ° Decision concerning the administrative status of an official ° Taking into account of matters not included in his personal file ° Illegality

(Staff Regulations of Officials, Art. 26)

6. Officials ° Decision concerning the administrative status of an official ° Taking into account of matters not included in his personal file ° Decisive influence ° Annulment ° Conditions

(Staff Regulations of Officials, Art. 26)

Summary

1. The reasons given for a decision adversely affecting an official are sufficient if the measure was adopted in circumstances known to the official concerned which enable him to understand its scope. That is the case where a reassignment decision in the interests of the service has been preceded by a letter and by discussions, in which the superiors of the person concerned have explained to him the situation and the reasons for the proposed reassignment, and where the official has had the opportunity to put forward his arguments against the decision informing him that he had to take the necessary steps to prepare to move.

2. The Community institutions have a wide discretion to organize their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided the staff are assigned in conformity with the principle that the post to which an official is assigned should correspond to his grade.

Where they cause tensions prejudicial to the proper functioning of the service, internal relationship difficulties may justify the transfer of an official in the interests of the service. Such a measure may even be taken irrespective of the question of responsibility for the incidents in question.

That rule applies a fortiori in the sphere of the external relations of a department, especially where it is entrusted with diplomatic tasks. The essential element of diplomatic functions is to prevent tensions from arising and to smooth out any which do. Such functions require the absolute confidence of those involved. Once that is shaken, for whatever reason, the official in question is no longer able to carry out the functions. So that the criticisms made against him do not extend to the whole of the department concerned, sound administration requires that the institution should distance him from the situation as soon as possible.

3. If the grounds of a judgment of the Court of First Instance reveal an infringement of Community law, but its operative part appears to be well founded on other legal grounds, the appeal must be dismissed.

4. Since a decision to transfer or reassign an official may be taken on the basis of the mere existence of complaints, where the interests of the service so require, the institution cannot be impugned for adopting such a measure without first opening an enquiry in order to determine whether those complaints are well founded. In such a context, any non-performance of the duty to provide assistance under Article 24 of the Staff Regulations can only lead to the annulment of the decision refusing the assistance requested and, in some cases, may constitute maladministration for which the Community may be liable.

5. A decision by the appointing authority concerning the administrative status and career of an official may not be based on matters concerning his conduct which are not included in his personal file and have not been communicated to him.

A decision to redeploy an official necessarily affects his administrative status, since it alters the place and the conditions for the performance of his duties and also their nature. It may also affect his career by influencing his future prospects, since some functions, whilst being equally classified with others, lead more readily to promotion by reason of the nature of the responsibilities exercised.

Therefore, by holding, on the one hand, that the purpose of Article 26 of the Staff Regulations is to ensure compliance with the official' s rights of defence by preventing decisions by the appointing authority which affect his administrative status and career from being based on facts concerning his conduct which are not mentioned in his personal file, and at the same time holding that the contested reassignment decision did not affect either the official' s administrative status or his career, the Court of First Instance failed to uphold Article 26 of the Staff Regulations. More particularly, by allowing documents not communicated to the official and relating to his conduct in the service to be used against him, the Court of First Instance failed to uphold the second paragraph of Article 26 of the Staff Regulations.

6. Infringement of Article 26 of the Staff Regulations does not entail the annulment of a decision by the appointing authority affecting an official' s administrative status and career unless it is established that the documents concerning his conduct not placed on his personal file and not communicated to him could have had a decisive influence on the decision.

The mere fact that documents were not placed on an official' s personal file is not enough to justify annulment of a measure adversely affecting him if they were in fact brought to his knowledge. It is apparent from the second paragraph of Article 26 of the Staff Regulations that the prohibition on using against an official documents concerning his ability, efficiency and conduct applies only to documents which were not previously communicated to him. It does not cover documents which, although brought to his knowledge, have not yet been placed on his personal file.