JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

19 June 1997

Case T-73/96

Miguel Forçat leardo

v

Commission of the European Communities

‛Officials — Assignment to a new post — Interests of the service — Misuse of power’

Full text in French II-485

Application for:

annulment of the memorandum of the Director-General of Directorate-General IX (Personnel and Administration) of 11 August 1995 assigning the applicant to a new post with effect from 1 October 1995, and compensation for nonmaterial damage.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, who was then a head of unit in the Directorate-General for Development (DG VIII), was sent a memorandum dated 3 February 1995 reporting comments made about him by the head of another unit in DG VIII, which he considered insulting and defamatory.

There followed an exchange of correspondence between inter alia the applicant and the Director-General of DG VIII and meetings between those two persons and others. The Director-General concluded that the comments made about the applicant were unfounded and decided to close the matter.

On 11 August 1995, by memorandum of Mr De Koster, Director-General of the Directorate-General for Personnel and Administration, the applicant was informed that in the context of the reorganization of DG VIII the Commission had decided on 1 August 1995 to assign him to the post of head of unit 5 of Directorate B in DG VIII (unit VIII.B.5) from 1 October 1995. There was no response to the applicant's complaint of 26 October 1995.

On 14 March 1996 the applicant's lawyer sent Mr De Koster a letter in which he asked, on behalf of his client, for the assistance of the Commission in accordance with Article 24 of the Staff Regulations of Officials of the European Communities.

Admissibility of the application for annulment

Even if a decision such as that in the present case does not affect the material interests or the rank of an official it may, having regard to the nature of the duties in question and the circumstances, adversely affect the applicant's nonmaterial interests and future prospects. In those circumstances it is not possible to assume in advance that it is not capable of adversely affecting him (paragraph 16).

See: 60/80 Kmdermann v Coimnission [1981] ECR 1329. para. 8

Admissibility of the claim for compensation under the second paragraph of Article 24 of the Staff Regulations

The admissibility of an action for compensation brought by an official in reliance on the joint and several obligation - of a secondary nature — laid down in the second paragraph of Article 24 of die Staff Regulations is subject to the exhaustion of domestic legal remedies in so far as these provide effective protection for the individuals concerned and can result in reparation of the damage alleged. Moreover, an official who claims to have been injured must at least put forward prima facie evidence such as to raise serious doubts as to the effectiveness of the protection provided by domestic legal remedies (paragraph 20).

See: T-294/94 Dimitriadis v Court of Auditors [1996] ECRSC II-151, para. 68

In this case the applicant has neither claimed to have brought national proceedings nor cast doubt on the effectiveness of the protection provided by the relevant national law (paragraph 21).

Infringement of Artide 7(1) of the Staff Regulations

The institutions enjoy a broad discretion to organize their departments to suit the tasks entrusted to them and to assign staff available to them in the light of such tasks, on condition, however, that the staff are assigned in the interests of the service and in conformity with the principle that assignment must be to an equivalent post (paragraph 26).

See: T-80/92 Turner v Commission [1993] ECR II-1465, para. 53

Neither the fact that the accusations against the applicant were made before the assignment decision nor the fact that at the meeting between the applicant and the Director-General of DG VIII on 3 July 1995 both the new assignment and the accusations against the applicant were discussed can establish that the accusations caused the reassignment and that the decision was a disguised penalty imposed on the applicant (paragraphs 28 and 29).

Moreover, the rule that the post must correspond to the grade, set out in particular in Article 7 of the Staff Regulations, involves, in the event of a change in the duties of an official, a comparison not between his present and previous duties but between his present duties and his grade. In those circumstances the applicant's argument based on a comparison between his present and previous duties is of no relevance (paragraphs 30 and 31).

See: 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 20

There is nothing to prevent an institution from deciding that posts of head of unit are to be filled at A 3, A 4 or A 5 level, depending on the importance of the tasks entrusted to the unit concerned (paragraph 33).

See: T-10/94 Kratz v Commission [1995] ECR II-1455, para. 53

Moreover, it does not follow from any provision that once the level of a post is fixed it is no longer possible for die appointing authority subsequently to reconsider its classification. The fact that the post to which the applicant was assigned was previously filled by an official in a lower grade than his is thus not capable in itself of establishing that the post does not correspond to the grade (paragraph 34).

In those circumstances, die applicant, who bears the burden of proof, has not shown that the post he occupies does not correspond to his grade, despite the reduction in die remit of unit VIII.B.5, which moreover took place well before the applicant was assigned to that unit, and, a fortiori, has not shown that his assignment to that post may be regarded as a disguised penalty (paragraph 35).

Misuse of power

If a decision has not been judged to be contrary to the interests of die service, diere can be no question of any misuse of power (paragraph 36).

See: T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061, para. 57

Operative part:

The application is dismissed as inadmissible in so far as it concerns the claim for compensation based on the second paragraph of Article 24 of the Staff Regulations of Officials of the European Communities.

For the rest, the application is dismissed.