JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

22 January 1998

Case T-98/96

Mario Costacuria

v

Commission of the European Communities

‛Officials — Decision reassigning an official — Article 7 of the Staff Regulations — Annex X to the Staff Regulations’

Full text in French II-49

Application for:

annulment of the ‘decision’ of the Committee for the Administration of External Missions, contained in a note of 30 April 1996, and of the Commission's decision of 31 May 1996 reassigning the applicant to the Office for Official Publications of the European Communities.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant is a Commission official who, since 16 February 1993, has been assigned to Directorate-General VIII (Development). More specifically, he has been serving with the Commission's delegation to Kinshasa.

On 4 July 1995, on the basis of a Commission note dated 20 June 1995 concerning the rotation, for the year 1996, of officials posted to delegations in nonmember countries, he submitted a request for early rotation.

On 12 January 1996 he received a note of 14 December 1995 from the Head of Unit 2 (‘Personnel’) of Directorate E (‘Management of external missions’) of Directorate-General IA (External relations: Europe and the new independent States, Common foreign and security policy and external missions) (hereinafter ‘Head of Unit IA.E.2’). The note stated that the Committee for the Administration of External Missions (hereinafter ‘the Committee’) of DG IA had assigned him ‘in the interests of the service’ to the Office for Official Publications of the European Communities (hereinafter ‘the Publications Office’), in which he had been serving before being posted to Kinshasa. It also informed him that he had two weeks within which to submit an appeal and that this assignment would be confirmed by the transmission of the decision of the appointing authority, which would take no action until after the deadline for submitting an appeal.

The applicant appealed on 19 January 1996.

On 8 March 1996 he asked the Central Staff Committee for a statement of reasons.

On 20 May 1996 he was informed by a note from the Head of Unit IA.E.2 of 30 April 1996 that the Committee had decided to reinstate him in the central services (Publications Office).

On 30 May 1996 the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Communities (hereinafter ‘the Staff Regulations’).

On 10 June 1996 he received the appointing authority's decision of 31 May 1996 reassigning him together with his post to the Publications Office with effect from 1 July 1996 (hereinafter ‘the decision’).

On 14 June 1996 he submitted a complaint in respect of that decision, pursuant to Article 90(2) of the Staff Regulations, by way of a supplement to his earlier complaint of 30 May 1996.

Admissibility

Acts preparatory to a decision do not adversely affect the person concerned within the meaning of Article 90(2) of the Staff Regulations and therefore can only be challenged incidentally, in proceedings contesting measures capable of being annulled. This is the position with respect to the Committee's opinion proposing that the appointing authority reassign the applicant under the system for the rotation of staff serving outside the Community (paragraphs 21 to 24).

See: 346/87 Bossi v Commission [1989] ECR 303, para. 23; T-32/89 and T-39/89 Marcopoulos v Court of Justice [1990] ECR II-281, para. 21

Substance

First plea in law: infringement of Article 7 of the Staff Regulations

The institutions enjoy a broad discretion to organise their departments in keeping with the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition, however, that they are assigned in the interests of the service and in conformity with the principle that staff must be assigned to an equivalent post (paragraph 36).

See: T-73/96 Forcai leardo v Commission [1997] ECRSC II-485, para. 26

The first point to note is that the principle of the equivalence of posts has been complied with in the present case in that the applicant was reassigned together with his post. Secondly, the interests of the service cannot be equated with those of a particular department such as that for external missions in DG IA (paragraphs 37 and 38).

In the present case, the applicant himself asked to leave the Kinshasa delegation, one of the reasons being his relations with the head of the delegation, which were ‘difficult to say the least’. However, where an official is reassigned in order to put an end to an administrative situation which has become intolerable, his reassignment must be regarded as being in the interests of the service. Accordingly, the decision cannot be regarded as a disguised disciplinary measure (paragraph 39).

See: C-116/88 and C-149/88 Hecq v Commission [1990] ECR I-599, para. 22

Moreover, reassignment is not conditional on the consent of the official concerned. Such a requirement would constitute an unacceptable restriction on the institutions' freedom to organise their departments and adapt them to changing needs. Accordingly, the fact that the applicant did not ask to be reinstated in the Publications Office does not mean that his reassignment to the department concerned was a disguised disciplinary measure (paragraph 40).

See: 161/80 and 162/80 Carbognaniand Coda Zabelta v Commission [1981] ECR 543, para. 28

Thirdly, the Commission's practice of returning an official to his original department when his assignment to a nonmember country comes to an end cannot be regarded as a breach of the principle of nondiscrimination. An official who has been reassigned to a directorate other than DG VIII or DG IA is not thereby precluded from subsequently being reassigned, pursuant to Article 7 of the Staff Regulations, to an external delegation (paragraph 41).

Lastly, even if it had been established (which is not the case) that, on being reassigned to the Publications Office, the applicant has little to occupy him, that would have no bearing on the lawfulness of the decision, which must be assessed with reference to the time at which it was adopted (paragraph 43).

See: T-77/95 SFEI and Others v Commission [1997] ECR II-1, para. 74

Second plea in law: disregard of the provisions governing the rotation of officials serving outside the Union

An official cannot claim any right to be assigned twice in succession to an external delegation or to be assigned to a particular delegation which he has specified in his request for rotation. Consequently, the Commission was not under a duty to exhaust the possibilities open to the applicant under the rotation system of placements in other external delegations before deciding to reassign him under Article 7 of the Staff Regulations. That being so, there is no need to consider the question whether sound reasons were given for not assigning the applicant to the other external delegations specified, since it has no bearing on the lawfulness of the decision adopted pursuant to that provision (paragraph 54).

The period of two weeks with effect from receipt of the applicant's appeal against the decision reassigning him — provided for by the Commission's orientations of July 1988 about the new rotation system for staff serving outside the Community — cannot be regarded as a strict time-limit, failure to observe which would invalidate any decision adopted on completion of the procedure, but constitutes a precept of sound administration, the aim of which is to prevent the appointing authority, in the interests of both administration and staff, from unjustifiably delaying the adoption of the final decision (paragraphs 56 to 60).

Tfiird plea in law: the appointing authority lacked competence

The Decison bears the signatures of the directors of Directorate E, DG IA, and of the directorate for ‘staff’ in the Commission's Directorate-General for Staff and Administration. It is clear from the applicant's reply at the hearing that he is not in fact questioning the formal competence of the appointing authority which signed the decision. The question whether an official may, in the absence of a vacancy notice, be posted from the Commission to the Publications Office is not relevant in the present case, since the measure adopted in the applicant's case was reassignment — that is to say, he was assigned together with his post — to die Publications Office (paragraphs 66 to 68).

Fourth plea in law: failure to honour legitimate expectations

The right to rely on the principle of the protection of legitimate expectations extends to any individual in whom specific assurances given by an institution have aroused reasonable expectations. In the present case, however, such assurances are not alleged to have been given. The assignment of an official under Article 7 of the Staff Regulations does not constitute an abnormal and unforeseeable event in his career. Consequently, his reassignment to the Publications Office cannot constitute a breach of the principle of the protection of legitimate expectations (paragraphs 72 and 73).

See: 61/76 Geist v Commission [1977] ECR 1419, para. 34; 289/81 Mavridis v Parliament [1983] ECR 1731, para. 21; 23/87 and 24/87 Aldinger and Another v Parliament [1988] ECR 4395, para. 17; T-123/89 Chomel v Commission [1990] ECR II-131, paras 25 and 26; T-46/89 Pitrone v Commission [1990] ECR II-577, para. 41

Fifth plea in law: breach of the duty to have regard for the welfare of officials

A decision to reassign an official which involves moving him, against his will, to another place of employment must be taken with the necessary diligence and with special care, in particular having regard to the personal interests of the official concerned. However, such consideration of an official's interests does not go so far as to preclude the appointing authority from reassigning him against his will (paragraph 78).

See: Carbognani and Coda Zabetta, cited above, para. 28; Hecq v Commission, cited above, para. 23; T-36/93 Ojha v Commission [1995] ECRSC II-497, para. 83; C-294/95P Ojha v Commission [1996] ECR I-5863, para. 47

In the present case, apart from opposing in principle a return to the Publications Office, the applicant has not relied on any personal circumstance which the Commission should have taken into account (paragraph 79).

Sixth plea in law: infringement of Articles 25 and 101a of the Staff Regulations

A decision involving the transfer of an official against his will is a measure adversely affecting him within the meaning of Article 25 of the Staff Regulations and must therefore state the reasons on which it is based. However, a decision contains an adequate statement of reasons if it was adopted in circumstances known to the official concerned and he is, accordingly, aware of the scope of the decision taken in relation to him. That is the position where a decision reassigning an official in the interests of the service expressly refers to Article 7 of the Staff Regulations and to the interests of the service, and where the official concerned was aware of the circumstances in which the decision was taken (paragraphs 86 to 90).

See: 791/79 Démont v Commission [1981] ECR 3105, para. 12; Hecq v Commission, cited above, para. 26; C-294/95 P Ojha v Commission, cited above, para. 35

Operative part:

The application is dismissed.