Keywords

Summary



Keywords

1 . OFFICIALS - APPLICATION - EXPRESS DECISION REJECTING A COMPLAINT AFTER THE TIME-LIMIT FOR SO DOING HAS EXPIRED - DECISION SIMPLY CONFIRMING AN IMPLIED DECISION REJECTING A COMPLAINT - INADMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS , ARTS . 90 AND 91 )

2 . OFFICIALS - DECISION ADVERSELY AFFECTING AN OFFICIAL - ASSIGNMENT TO A NEW POSTING WITHIN A DEPARTMENTAL REORGANIZATION

( STAFF REGULATIONS OF OFFICIALS , ART . 25 )

3 . OFFICIALS - DECISIONS ADVERSELY AFFECTING AN OFFICIAL - DUTY TO STATE THE GROUNDS ON WHICH DECISIONS ARE BASED - SCOPE TO BE DETERMINED ON THE BASIS OF THE PARTICULAR FACTS OF EACH CASE

( STAFF REGULATIONS OF OFFICIALS , ART . 25 )

4 . OFFICIALS - POST - DUTIES MUST CORRESPOND TO THE GRADE - CRITERIA FOR DETERMINING SUCH CORRESPONDENCE

( STAFF REGULATIONS OF OFFICIALS , ART . 7 )

5 . OFFICIALS - DUTY OF THE ADMINISTRATION TO LOOK AFTER THEIR WELL-BEING - SCOPE - CONSIDERATION OF THE INTERESTS OF THE OFFICIAL AFFECTED BY THE DECISION TO BE ADOPTED

6 . OFFICIALS - POST - ASSIGNMENT - NO DUTY TO STATE TO UNSUCCESSFUL APPLICANTS THE GROUNDS ON WHICH SUCH DECISIONS ARE BASED

7 . DECISIONS ADOPTED BY THE INSTITUTIONS - SERIOUS DAMAGE TO INDIVIDUAL INTERESTS - PRINCIPLE OF GOOD ADMINISTRATION - DUTY TO ALLOW THE OFFICIAL CONCERNED TO MAKE KNOWN HIS POINT OF VIEW

Summary

1 . ALTHOUGH IT MAY DISCLOSE THE GROUNDS FOR REJECTING A COMPLAINT THROUGH OFFICIAL CHANNELS , AN EXPRESS DECISION REJECTING AN OFFICIAL ' S COMPLAINT THROUGH OFFICIAL CHANNELS NOTIFIED TO THE APPLICANT AFTER THE TIME-LIMIT OF FOUR MONTHS PRESCRIBED BY THE LAST PARAGRAPH OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS HAS EXPIRED ONLY CONFIRMS THE IMPLIED DECISION WHICH IS DEEMED , BY VIRTUE OF THE SAID ARTICLE , TO RESULT FROM THE SILENCE OF THE ADMINISTRATION . THERE- FORE AN ACTION DIRECTED AGAINST THE EXPRESS DECISION HAS NO PURPOSE AND IS ACCORDINGLY INADMISSIBLE .

2 . THE ASSIGNMENT OF AN OFFICIAL , WITHIN A DEPARTMENTAL REORGANIZATION , TO A NEW POST IN THE SAME GRADE AND IN THE SAME BASIC POST , WHICH NEVERTHELESS INCLUDES ACTIVITIES , THE DIFFERENT NATURE OF WHICH IS EVIDENT FROM THEIR DESCRIPTION , COULD HAVE AN EFFECT ON THE FUTURE PROSPECTS OF THE OFFICIAL CONCERNED AND MAY BE SUCH AS TO AFFECT HIM ADVERSELY , IN SO FAR AS IT INVOLVES A MODIFICATION OF THE DUTIES ASSIGNED TO THE OFFICIAL RESULTING IN AN ALTERATION OF THE DESCRIPTION OF DUTIES .

3 . SINCE THE PURPOSE OF THE DUTY TO STATE THE GROUNDS ON WHICH A DECISION IS BASED , WHICH IS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS OF OFFICIALS , IS BOTH TO PERMIT THE OFFICIAL CONCERNED TO DETERMINE WHETHER THE DECISION IS DEFECTIVE , MAKING IT POSSIBLE FOR ITS LEGALITY TO BE CHALLENGED AND TO ENABLE IT TO BE REVIEWED BY THE COURT , IT FOLLOWS THAT THE EXTENT OF THIS DUTY MUST BE DETERMINED ON THE BASIS OF THE PARTICULAR FACTS OF EACH CASE .

SINCE THE DECISION IN QUESTION IN THE ASSIGNMENT OF AN OFFICIAL TO A NEW POST AS A RESULT OF A DEPARTMENTAL REORGANIZATION , THE DUTY TO GIVE A STATEMENT OF GROUNDS MUST BE RELATED TO THE DISCRETIONARY POWER WHICH THE APPOINTING AUTHORITY EXERCISES IN THIS CONNEXION AND ALSO TO THE MARGINAL NATURE OF THE DISADVANTAGES WHICH MAY RESULT FOR THE OFFICIAL CONCERNED FROM THIS KIND OF MEASURE . IT IS LIKEWISE ADVISABLE TO TAKE INTO CONSIDERATION NOT ONLY THE DOCUMENT GIVING NOTICE OF THE DECISION BUT ALSO THE CIRCUMSTANCES IN WHICH IT WAS TAKEN AND BROUGHT TO THE KNOWLEDGE OF THE OFFICIAL CONCERNED AS WELL AS THE DEPARTMENTAL MEMORANDA AND OTHER COMMUNICATIONS UNDERLYING IT WHICH HAVE CLEARLY GIVEN THE OFFICIAL INFORMATION AS TO THE GROUNDS AND THE BASIS OF THE SAID DECISION .

4 . 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 BETWEEN HIS PRESENT DUTIES AND HIS GRADE AND NOT BETWEEN HIS PRESENT AND PREVIOUS DUTIES .

5 . ALTHOUGH THE DUTY OF THE AD- MINISTRATION TO LOOK AFTER THE WELL-BEING OF ITS OFFICIALS ( ' ' FURSORGE- PFLICHT ' ' ) IS NOT MENTIONED IN THE STAFF REGULATIONS OF OFFICIALS , IT REFLECTS THE BALANCE OF THE RECIPROCAL RIGHTS AND OBLIGATIONS ESTABLISHED BY THE STAFF REGULATIONS IN THE RELATIONSHIP BETWEEN THE OFFICIAL AUTHORITY AND THE CIVIL SERVANTS . A PARTICULAR CONSEQUENCE OF THIS BALANCE IS THAT WHEN THE OFFICIAL AUTHORITY TAKES A DECISION CONCERNING THE SITUATION OF AN OFFICIAL IT SHOULD TAKE INTO CONSIDERATION ALL THE FACTORS WHICH MAY AFFECT ITS DECISION AND THAT WHEN DOING SO IT SHOULD TAKE INTO ACCOUNT NOT ONLY THE INTERESTS OF THE SERVICE BUT ALSO THOSE OF THE OFFICIAL CONCERNED .

6 . IF THE APPOINTING AUTHORITY , IN ORDER TO FILL A POST , MAKES A CHOICE FROM SEVERAL OFFICIALS HAVING THE SAME QUALIFICATIONS , IT DOES NOT , AS FAR AS CONCERNS THE OFFICIAL WHICH IT HAS NOT SELECTED , HAVE TO JUSTIFY ITS REASONS FOR DECIDING THAT HIS COMPETITOR WAS MORE SUITED THAN HE WAS TO MEETING THE REQUIREMENTS OF THE DUTIES IN QUESTION .

7 . IN ACCORDANCE WITH A GENERAL PRINCIPLE OF GOOD ADMINISTRATION AN ADMIN- ISTRATION WHICH HAS TO TAKE DECISIONS , EVEN LEGALLY , WHICH CAUSE SERIOUS DETRIMENT TO THE PERSONS CONCERNED , MUST ALLOW THE LATTER TO MAKE KNOWN THEIR POINT OF VIEW , UNLESS THERE IS A SERIOUS REASON FOR NOT DOING SO .