OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 5 APRIL 1973 ( 1 )

Mr President,

Members of the Court,

This case, which is concerned with the relations between Euratom and a member of its scientific staff, profoundly affects the entire structural organization of this European institution, which is concerned with a special activity carried out by persons who are described, and indeed differentiated, in their official relationships in a manner which can only by analogy be brought within the customary schemes of the administrative bureaucratic relationship.

The judge must accordingly enter the rather delicate area of the organization of a large scientific institution in which the requirements of fruitful activity come face to face with the arguments of strict law invoked in the just defence of individuals, and with the claims of scientific officials to work in the combined interest of common research and individual self-expression. The difficulty here is a peculiar one, since in the present case it is not the grade or the salary of the interested party which gives rise to argument, but his employment with a view to the convergence of interests which I have mentioned, and the judge, accustomed to a different type of dispute raised by the staff in their disputes with the Community institutions, finds it necessary here to adapt to the peculiar nature of this case the guidance afforded by a body of case law built up in the light of different perspectives. The rule of equivalence between grade and employment can furnish only a rather vague criterion, because the same qualifications and distinctions of grade, which in the normal chain of command are such as to involve a greater or lesser sum of powers, are here linked instead with the recognition of different values which do not lend themselves precisely to control by a Court like ours.

From an examination of the facts submitted for your judgment, you are required to draw the inferences needed for an evaluation which will take place against a background of difficult relationships between research workers. And the special surroundings may also tend to lend to these facts a different significance from that which the same facts would bear in a normal, purely administrative, organization, whether by softening the judgment of conduct scarcely compatible with a hierarchical structure, by aggravating the burden of removal from a post even though not entailing a change of residence or any economic consequences, or on the other hand, in the evaluation of the interests of the service and the recognition of a sufficient margin of discretion on the part of the authorities in relation to the particular requirements for the functioning of a research body.

Within this setting, the description of the facts which I shall give you should lead to an interpretation which will make it possible to approximate the situation of the parties in the case to the traditional framework of your decisions on the relations between institutions and officials. But in the particular circumstances of the situation you must bear in mind also the remedy sought. We must not forget that the object of the application is to obtain the annulment of a transfer decision within the establishment at Ispra. Now it is clear that the possible annulment of such a decision if it brought about — as in the normal case — a return to the previous situation, would involve intervention in the organization of a research centre, which would be rather serious, perhaps useless, and in any case essentially very different from the usual consequences of the annulment of a transfer decision involving the reinstatement of an administrative official in his previous post. The Court, in cases of this kind, ought to make a suitable modification so as to ensure both respect for the individual's right and at the same time the autonomy necessary for the institution. I note, therefore, as a preliminary, that in the event of the impugned decision being annulled, reinstatement in the post previously occupied would not necessarily be required in order to afford the satisfaction, essentially moral, sought by the interested party.

The solution of the present dispute depends to a large extent on the interpretation of the facts established for the two months preceding the impugned decision, facts which, however, have their origin in, and must be considered in the light of, events going back about a year, and especially in the decision of Dr Caprioglio, the Director-General of the Joint Research Centre at Ispra, to reorganize that Centre. This intention, which was apparently made known in general outline towards the middle of 1970, at once became the subject of repeated discussion on the part of the officials concerned. It appears from a document dated 15 June 1970, and addressed to Director Caprioglio by the applicant, that the scientific officials were already expressing serious reservations about the feasibility, in the absence of a previously defined programme of research, of effective reorganization regarding, in particular, the Physics Section which was concerned with the experimental reactor.

Similar criticisms were expressed by Dr Kley in a memorandum addressed to Dr Caprioglio on 3 November 1971. In this document the applicant also made special reference to a proposal from his Scientific Director, Dr Finzi, made at the beginning of May of that year, to transfer the staff of the experimental reactor of the Physics Division, controlled by the applicant, to the Nuclear Studies Division controlled by Mr Kind. It is stated in this memorandum that these organizational problems occupied more than a hundred hours of discussion between the applicant, Mr Finzi and Mr Kind. During the course of these meetings, Mr Finzi had suggested to the applicant that he should undertake responsibility for the reactor Ispra-I, which would have entailed the transfer to his division of the operating staff, 50 in number, connected with this programme. The applicant states in the said memorandum that, in order to retain for the Physics Division the character of an important centre of research and not to encumber it with technical and administrative duties, he had refused this suggestion, in which in any case he recognized nothing but a sort of exchange of counters to compensate for the proposed transfer of some of his important departments to the other division. The applicant concluded by requesting Director Caprioglio not to make a decision on the matter until Dr Burger, the future superior of Dr Finzi, had become familiar with the problems.

From the exchange of a succession of notes which took place between the applicant and Director Caprioglio, it is clear that at the bottom of the whole dispute there was a difference of opinion as to the priorities to be observed in connection with the programme of the experimental reactor Sora. The applicant maintained that it was in the interests of the realization of this project that the physical aspects of the experimental reactor should remain within the competence of the Physics Division. In this regard the applicant also pointed out the necessity of bearing in mind the human factor when effecting the proposed reorganization of the Centre. We know from a memorandum addressed by Mr Hage to Mr Finzi, dated 28 October 1971, that the great majority of the scientific officials making up this section of the Physics Division had, when a vote was taken, declared themselves against the proposed transfer of their section from the Physics Division to the Nuclear Studies Division.

In the light of the foregoing, consideration must be given to the events which followed at a quicker pace from the day the applicant was informed of the formal decision of the Scientific Director, Dr Finzi, approved by Director-General Caprioglio, to entrust to him responsibility for the reactor Ispra-I, with effect from 1 January 1972, and simultaneously to transfer the Reactor Physics Section to the Nuclear Studies Division. To this decision, communicated by means of a memorandum of 26 November 1971, the applicant replied by the memorandum of 2 December addressed to Mr Commissioner Spinelli, in which he stated that his working commitments and his scientific interests did not allow him to assume the additional responsibilities which would be entailed by the management of the experimental reactor Ispra-I.

In addition the Consultative Committee of the Physics Division expressed itself opposed to undertaking the responsibility of managing the reactor Ispra-I in view of the uncertainty of the three-year programme.

In a letter of 15 December of the same year addressed to Mr Commissioner Spinelli, Dr Kley expressed himself opposed to the decision to transfer the officials of the Physics Section of the experimental reactor from his division to the Nuclear Studies Division, accusing Director-General Caprioglio of having taken this decision unilaterally, in opposition to the wishes of the officials concerned, and contrary to the interests of the Centre's research. Dr. Kley asked to be received in person by Mr Commissioner Spinelli, so that he might put his point of view regarding the questions of the Centre's reorganization, especially in so far as concerned the Sora project.

Mr Commissioner Spinelli replied to this second letter on 7 January 1972, stating that, in accordance with the Commission's decision to confer full autonomy upon the Centre, he did not intend to interfere with Director-General Caprioglio in the exercise of his powers.

Meanwhile, on 29 November, the applicant, without seeking previous permission from his director, took himself to Bonn and Brussels, in order to put his point of view in relation to the Sora programme.

On 13 December, Director-General Caprioglio requested the Director-General of Personnel and Administration to have his staff examine the possibility of initiating disciplinary proceedings against Dr Kley on the grounds of the following conduct on his part:

1. Having taken himself on a mission to Bonn without permission and without having informed his superior;

2. Having divulged to numerous officials a copy of a letter sent to Dr Kley by the Scientific Director and a copy of his own controversial reply, the disclosure of which was of a nature calculated to weaken the authority of the Directorate in the eyes of staff;

3. Having had direct recourse to Mr Commissioner Spinelli, ignoring the normal official channels.

It is interesting to note that this request from Director Caprioglio was despatched to the Administration before the applicant had formally refused to transmit the transfer notices for the officials in his Division who were to move to another Division as a result of the reorganization decided on by the Centre Administration. In fact, the applicant received these notices next day, 14 December 1971, as appears from his letter of 15 December, mentioned above, addressed to Mr Commissioner Spinelli.

By memorandum of 11 January 1972, Dr Caprioglio informed the applicant that as a result of a meeting on the previous day in which Mr Finzi also had taken part, he had decided to entrust the direction of the Physics Division temporarily to Mr Finzi and to appoint the applicant adviser to the Scientific Division at Ispra, entrusting to him in particular the co-ordination of work relating to the experimental programme connected with the use of the Sora reactor. Dr Caprioglio also referred to the administrative duties which the applicant had formerly had to carry out, and in which, as he had often said, he felt little interest, duties which had recently had to be increased to the detriment of his scientific work.

By memorandum of the same date addressed to the Director-General for Personnel and Administration, Dr Caprioglio asked that no further steps be taken regarding his request for the initiation of disciplinary proceedings against Dr Kley, declaring himself convinced that the attitude adopted by the latter was due to the fact that the administrative duties allotted to him had not corresponded to his abilities and interests, and not to a deliberate intention to ignore the normal channels. Dr Caprioglio also expressed the hope that the new, purely scientific, post offered to Mr Kley would correspond to his interests and would accordingly make it possible to avoid a repetition of the previous difficulties.

In a joint letter to Mr Commissioner Spinelli, dated 13 January 1972, the staff of the division formerly entrusted to the applicant expressed their disapproval of the interim transfer of the Physics Division to Mr Finzi and the appointment of Mr Kley as adviser to the Scientific Division.

In a letter of 17 February 1972 Mr Commissioner Spinelli replied to Dr Kley, in answer to the letter of 15 December 1971 and the memorandum of 13 January 1972, pointing out that the Director-General of the Centre had power to adopt independently the measures necessary for the fulfilment of his tasks and that accordingly his departmental orders were effective without the need of confirmation on the part of a higher authority.

Bearing in mind all these facts, let us proceed to the examination of the merits.

But we must first examine a preliminary objection as to admissibility raised by the defendant.

Regarding the admissibility of the application

The defendant raises an objection on the admissibility of the application, on the ground that neither the transfer decision of 11 January 1972 taken regarding the applicant, nor the negative decision rejecting the complaint submitted though his immediate superior, which implicitly confirmed the said decision, constituted an act adversely affecting the applicant within the meaning of Article 90 of the Staff Regulations. However, the defendant recognizes that the question of inadmissibility posed in these terms is closely linked with the merits. The existence of an adverse effect legally actionable by the applicant as a consequence of the impugned decision in fact depends essentially upon whether his claim is wellfounded that the position assigned to him as adviser to the Scientific Directorate did not in point of fact accord with the functions corresponding to his grade.

In this regard I consider it suitable to underline the fact that the concept of ‘act adversely affecting’ an official, for the purposes of Article 91 of the Staff Regulations, has a purely procedural nature in the sense of acting as a filter for the admissibility of applications, quite independently of their merits. This procedural concept must accordingly be in no way confused with the idea of an unlawful act, much less with that particular form of illegality comprising the infringement of an official right. While it is true that the question of the admissibility of an act can sometimes be closely linked with the merits of the dispute, it would be wrong to confuse the procedural concept of an act adversely affecting an official, which merely imposes the requirement of a preliminary examination of his interest in bringing the action, and the concept of an act infringing a substantive right, which can arise only at the stage of a decision on the merits of the dispute.

The distinction between the purely procedural concept of adverse effect envisaged by Article 91 and the substantive concept of infringement of an official's rights is already established in your judgments (see for example the judgment in Case 26/28 Fux, Rec. 1969, p. 145), even if cases can also be found where the position taken is not so clear (judgment 46/69, Reinarz, Rec. 1970, p. 275), which makes a clarification of the question all the more desirable.

Article 91 of the Staff Regulations further sets up a procedure which serves not only to protect the official's subjective rights, as is the case in an action where the Court has unlimited jurisdiction (the Court's ‘unlimited jurisdiction’, designed to protect officials' subjective rights, is provided only for disputes of a financial character), but is intended rather to allow objective examination of the legality of the conduct of the Community administrative authority. In the light of the foregoing, taking account of this principal function of the application procedure, it therefore seems justifiable to accept a concept of ‘act adversely affecting’ clearly distinguished from, and in every case wider than, that of act infringing the official's subjective right.

The important function which applications under Article 91 of the Staff Regulations have in controlling the legality of administrative action has further been recognized by the decisions of this Court, as appears inter alia from the judgment in Case 20/68 Pasetti v Commission (Rec. 1969, p. 235). Rejecting the objection of inadmissibility raised by the defendant, which alleged that the impugned provision, having been adopted at the official's request, could not adversely affect the applicant, the Court observed that if the disputed provision contained a defect which rendered it illegal it should be open to appeal even though adopted at the request of the party concerned.

Accordingly, if the requirements inherent in control of the legality of action by the Administration lead to the lifting of any bar which might result from the conduct of the official concerned in cases of this kind, the same requirements must also lead to a wide interpretation of the concept of ‘act adversely affecting’ the official, even if only for the sole purpose of determining the admissibility of the application.

The fact that an official prefers one post rather than another would not, of course, be sufficient to render illegal a decision by the Administration transferring him against his will, but it is sufficient to establish the admissibility of an application under Article 91. If it then appears from an examination of the merits of the case that the decision is lawful, this will bring about the dismissal of the application as unfounded, but does not make it inadmissible.

The condition of admissibility envisaged by Article 91 is intended to avoid the possibility of applications either where these are directed against decisions which have not affected the legal position of the applicant in any way, or, more generally, in cases in which they pursue an interest which by its very nature does not appear worthy of judicial protection.

If it is correct that a subordinate without having a right to a definite post, may legitimately prefer one post to another, as was stated in judgment 46/69 mentioned above, it seems to me that this is sufficient to admit the official's interest in impugning an act which transfers him to a post against his will, a decision on the merits as to the legality of this decision being naturally reserved, since this will depend exclusively upon whether or not the action taken complies with the formal and substantive requirements to which the administrative action must conform.

In conclusion it can be stated more generally that where an act of the Administration falls directly within the area of an official's legal rights, the latter's interest in pointing out the defects in legality of the act must be recognized as a matter of principle. There is no doubt that a decision transferring an official falls within the area of his legal rights: therefore he must be allowed to request the annulment of the act by pointing out defects in its legality.

I conclude accordingly that the objection of inadmissibility raised by the defendant should be dismissed at the outset of the case, there being no necessity, either logical or practical, to subordinate this question to the solution of the case on the merits.

Regarding the statement of reasons in the impugned decision

The applicant alleges first of all an infringement of Article 25 of the Staff Regulations because the impugned decision is said not to have contained adequate reasons. This Article lays down in its second paragraph that ‘any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the reasons on which it is based.’

Let us recognize that the concept of ‘decision adversely affecting an official’, for the purposes of this provision, must be given a latitude corresponding to the analogous concept envisaged by Article 91, either for the sake of the conformity which must exist, even independently of identical terminology, between concepts with parallel and convergent functions, or because of the necessity of ensuring a real possibility of protection for officials in the case of administrative acts which they may legitimately impugn before the Court.

In his memorandum of 11 January 1972, Director Caprioglio, after informing the applicant of the content of the decision, concluded in these terms: ( 2 )

‘I should like to thank you for the work which you have carried out up to the present as Head of Division of the Physics Division, which required you to carry out administrative duties in which, as you have informed me on several occasions, you have not much interest, and which I was recently compelled to increase to the detriment of your scientific activity.’

The reason given in this memorandum as the ground for transferring the applicant is therefore the lack of interest shown by him in the duties in which his position as Head of Division involved him, which became more onerous following the previous decisions on reorganization and especially the decision to entrust the applicant with the management of reactor Ispra-I.

Taken alone, this statement of reasons, though expressed in very succinct terms, suffices to provide adequate grounds for his transfer.

Further, the wide meaning which we have adopted for the concept of ‘act adversely affecting’ envisaged by Article 91, which is substantially identical in Article 25, mentioned above, (though different phrases are employed in the Italian text) necessarily implies a certain latitude regarding the form of the statement of reasons required for the acts of the Administration.

However, doubts may arise as to whether the reasons have been given in their entirety, or whether they are genuine, having regard to the applicant's statement contained in his administrative complaint, which, far from being contradicted in the defence, was in fact substantially confirmed in the course of the oral procedure before the Court. According to this evidence, on 10 January 1972, Director Caprioglio, in the presence of Mr Finzi, when informing the applicant of the decision for his immediate transfer, referred to the fact that the applicant had failed to put into effect the decision transferring the staff of the experimental section and had refused to assume responsibility for experimental research reactor Ispra-I.

It does not seem to me, however, that there is any substantial contradiction between the reasons succinctly stated in the memorandum of 11 January and those given orally in this way to the applicant. The attitude taken by the latter over the decision to transfer to his division the management of the reactor Ispra-I was in fact based on the increased burden of administrative responsibilities which this decision would entail for him, and on the harm which would thereby be caused to the scientific research which was his main interest. It could be objected that the reasons for the decision were not sufficiently explicit and complete, especially since there is no mention, even indirect, of the first of the two charges which according to the applicant's statement were made orally, that is to his refusal to give effect to the decision to transfer the staff of the experimental section.

It is reasonable to suppose that this conduct, too, on the part of the applicant was a determining factor in the decision, which was on the other hand, as has been seen, closely connected with his refusal to undertake the duties of running experimental reactor Ispra-I.

But I do not think that the incomplete nature of the statement of reasons in the memorandum of 11 January constitutes an infringement of the provisions of the second paragraph of Article 25 of the Staff Regulations.

In fact, bearing in mind the objective interdependence of the two decisions made within the framework of the reorganization of the Joint Research Centre and the subjective interdependence of the negative position taken up by Dr Kley towards each of them, the competent authority might well summarize the applicant's attitude by referring to the essential element underlying it, and defining it in relation to the requirements of the service: his inability to sacrifice certain of his own ideas and personal preferences to the exigencies of the reorganization which had been decided upon by the competent authority within the ambit of its discretionary power.

While this consideration was formulated with great tact, in such a way as not to damage the reputation of the applicant, whose value on the scientific plane nobody has ever put in doubt, this clearly does not constitute a sufficient reason to recognize a defect in the statement of reasons serious enough to entail the annulment of the impugned decision.

Regarding the misuse of powers

The applicant maintains that the impugned decision constituted in reality a disciplinary measure taken against him, arising from malice on the part of the Director-General. This, it is said, is apparent both from the withdrawal of the request to initiate disciplinary proceedings against him, which occurred simultaneously with his transfer to another department, and from the pointlessness of his new duties. Viewed in this light, the transfer decision can be seen as a sanction imposed without complying with the procedure prescribed for that purpose.

Regarding the first of the two arguments in support of the alleged misuse of powers, I observe that it is quite true that Dr Caprioglio had requested that disciplinary proceedings be initiated against the applicant, but it is clear that the reasons for which he took this step, although linked with the applicant's behaviour in connection with the implementation of the decisions for the reorganization of the Centre, were not concerned either with the latter's refusal to undertake responsibility for the experimental reactor Ispra-I, or by his opposition to the transfer of a part of his staff to another division, which in any case was shown only by his refusal, after the request for disciplinary proceedings, to give effect to the transfer notices. It seems to me reasonable to assume, taking into account the various forms taken by the applicant's opposition to the proposed reorganization, that the Director-General of the Centre intended the disciplinary proceedings to serve chiefly as a means of recalling the applicant to order and of restoring him to a line of conduct more in keeping with the operational needs of an organization which, although concerned with scientific research, must pay attention to the requirements inherent in its character as an organization with a hierarchical structure.

This request was then withdrawn by Dr Caprioglio at the very moment he had taken the decision to transfer the applicant. It cannot however be immediately inferred that the transfer decision was merely a substitute for the disciplinary measure which might have been the outcome of any disciplinary proceedings. Once the obstacle constituted by the applicant's presence at the head of his division had been removed, an obstacle having no connection with his scientific abilities but arising only from his attitude of non-collaboration with the administration on questions of organization, Dr Caprioglio simply considered it pointless to continue with disciplinary proceedings.

The circumstance that Dr Caprioglio after having decided, perhaps rather rashly, to try the effect threatening disciplinary measures, then thought it preferable to remove the applicant from the post where his presence was detrimental to the interests of the service, does not constitute proof of malice on his part against the applicant, but may well be attributed to a different view of the best way to organize his department to ensure their smooth running, action well within the ambit of the discretionary power which must be recognized in an official responsible for running a research centre.

Examination of the documents in the case, and especially of the correspondence between the applicant and his Director-General before and after the impugned decision, does not contain any indication of personal malice on the part of Dr Caprioglio towards the applicant. It dealt throughout simply with the different points of view relating to the organization of the scientific work — differences accentuated by the certainly not very conciliatory attitude of the applicant. In face of the tenacious resistance shown by the latter towards the policy and line of action followed by the Director-General, which by that time had taken on the appearance of real obstructionism, the transfer decision taken by Dr Caprioglio after more than a year of disputes about the reorganization of the Centre and after the applicant had had the fullest opportunity of discussion with his colleagues and superiors and of putting his point of view, is quite understandable as being, in the Director's judgment, in the best interests of the running of the departments, a judgment falling within the sphere of wide competence granted to him by the Commission, the merits of which it is not within the jurisdiction of this Court to question.

Since there is no other evidence to show that the Director-General acted otherwise than in the interests of the service, and especially since there is no evidence that he attached a punitive character to the applicant's transfer, it seems to me that this transfer must, at the most, be considered as an alternative to a sanction. The situation as it stood was unsatisfactory, and change was therefore necessary; and it was found more convenient to alter the organization of the departments. In this way there was less need for a call to order by means of a disciplinary measure; in a situation which, as the applicant's legal representative has said, reflects not so much the relations between corporal and private soldier in a barracks as the relations on the general staff.

The examination of the second argument for the alleged misuse of powers, concerning the content and character of the applicant's new duties, inevitably leads to the area covered by the plea regarding the infringement of Articles 5 and 7 and of Annex 1 of the Staff Regulations. It is in this setting that the applicant's statement as to the absence of real duties attached to his new post may assume decisive importance. It is therefore time to examine this argument, which forms the principal point in the application.

Regarding the alleged infringement of Articles 5 and 7 and of Annex 1 of the Staff Regulations

The applicant maintains that in his new employment he has no opportunity of carrying out duties corresponding to his grade A 3. In particular, the new duties, which are not envisaged in the description of duties in the establishment plan, are devoid of any real content. The applicant complains especially of a loss of authority and of jurisdiction, and the loss of the technical and financial resources which were at his disposal as Head of Division.

The oral procedure provided some useful details on this point. It appeared from the discussion between the parties' representatives, and from the statements of Dr Kley and Director-General Caprioglio at the hearing, that the basic duty which was intended to be entrusted to Dr Kley in his new post was that of coordinating the working groups set up under the Sora programme. Within the framework of these duties, Dr Kley ought especially to have prepared a comprehensive report. Director Caprioglio stated that this work was considered, at the time in question, as very important and urgent.

Dr Kley thought that the method proposed to him for coordinating the work on the Sora programme was not such as to yield valid results. This task — in his words — could only be seriously carried out from inside the Physics Division. According to the statements he made before the Court, this adverse judgment of the method employed in imposing the task on him, and the absence of a written order on the matter (which he now states that he would have obeyed) form the basis of his refusal to accept the task assigned to him.

We know that the task refused by Dr Kley was undertaken and carried through by Scientific Director Dr Finzi, who had at the time also taken over for some weeks the temporary direction of the division previously managed by the applicant, and that in carrying out this task Dr Finzi compiled a voluminous report which was presented to the Administration in the following June.

In his statements at the hearing, the applicant based his refusal to undertake this task not so much upon its alleged unsuitability for his grade but rather upon the fact that he thought this duty could not be effectively accomplished outside the Physics Division.

The Court cannot enquire into the merits of these differences of opinion, as regards the best means of organizing a scientific task.

However that may be, it is established that an important task was entrusted to the applicant in his new post, that this task was not considered by his superior, Scientific Director Dr Finzi, to be unsuitable for his own level, and that it was carried out by the latter in place of the applicant. It ill becomes an applicant who accuses the Commission of having failed to provide him with suitable duties to rely on the pleas that the order to carry out that work had not been given to him in writing; this point can serve only as a defence to a charge of having by his refusal committed a real act of insubordination, a charge which nobody has in any case brought against him; but this absence of a written order in no way obscures the fact that the applicant was clearly allotted genuine duties corresponding to and suitable for his level and his grade.

His adverse view of the organization of the task allotted to him does not affect its reality; nor can the preference for an experimental project rather than for a project of scientific coordination and synthesis result in the classification of the latter as unsuitable to his grade.

Freedom in the scientific world does not exclude the scientist's duties in the world of organization. Euratom is an organization with legal rights and duties, and with its own practical and functional requirements, which necessarily create limitations on the freedom of choice of the scientific officials, adverse to the interests of their own personal research. Its centres of operations are not academies, nor is their function pure research as might conceivably be the case in a university laboratory.

Certainly it is not easy to understand why the Commission left the applicant without any real occupation for several months after his refusal to undertake the duties offered. But this concerns the organization of the departments and the projects of the Ispra Centre, bearing in mind the particular moment of crisis and uncertainty at which the events in question took place, and so far as concerns the situation prior to the date the present application was submitted, it clearly cannot be relied upon to justifiy the applicant's assertion that the duties attached to his new post do not correspond with his grade.

For the reasons given above I am of the opinion that the application should be dismissed.

Regarding the costs of the case, however, it is necessary to take account of the special context of the dispute and the peculiar nature of the problems raised relating to the complex relations which exist between the practical requirements of an organization and freedom of scientific research; this leads to a recognition of the inability of the law to accord full satisfaction to individual positions which, though morally worthy of respect, must at times be sacrificed to the functional requirements of the organization.

In consideration of these characteristics of the case, within the context of which it is understandable that the applicant might have had the impression of being personally injured, and might accordingly have felt himself morally wronged, by the impugned decision, it seems to me fair that he should not have to bear costs in the case. I propose therefore that, in accordance with the first paragraph of Article 69 (3) of the Rules of Procedure, all the costs should be borne by the defendant.

( 1 ) Translated from the Italian.

( 2 ) Translator's note: The text of this letter is given in French in the original.