Judgment of the Court (Third Chamber) of 28 May 1980. - Richard Kuhner v Commission of the European Communities. - Change of posting and measures concerning departmental reorganization. - Joined cases 33/79 and 75/79.



European Court reports 1980 Page 01677

Greek special edition Page 00221



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



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 .

Parties

IN JOINED CASES 33 AND 75/79

RICHARD KUHNER , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 10 RUE DES EGLANTIERS , LUXEMBOURG , REPRESENTED BY DAVID ARENDT , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS REPRESENTATIVE , 34 B RUE PHILIPPE II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DENISE SORASIO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , OF 93 AVENUE BRILLAT-SAVARIN , 1050 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION IN CASE 33/79 FOR THE ANNULMENT OF A DECISION OF THE DEFENDANT RELIEVING THE APPLICANT OF HIS FUNCTIONS AS HEAD OF DEPARTMENT ASSIGNED TO THE SPECIAL DEPARTMENT FOR STATISTICS RELATING TO ' ' OTHER COUNTRIES ' ' IN DIRECTORATE F ( EXTERNAL RELATIONS , TRANSPORT AND SERVICES STATISTICS ) OF THE STATISTICAL OFFICE OF THE EUROPEAN COMMUNITIES AND ASSIGNING HIM TO THE POST OF PRINCIPAL ADMINISTRATOR IN DIVISION F 1 ( STATISTICAL METHODS AND CLASSIFICATION OF EXTERNAL TRADE ) OF THE STATISTICAL OFFICE OF THE EUROPEAN COMMUNITIES AND OF THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT RELATING THERETO AND ALSO FOR A DECLARATION THAT THE COMMISSION IS LIABLE TO PAY DAMAGES ,

APPLICATION IN CASE 75/79 FOR THE ANNULMENT OF THE EXPRESS DECISION REJECTING THE ABOVE-MENTIONED COMPLAINT ,

Grounds

1 THE APPLICANT HAS BROUGHT TWO ACTIONS AGAINST THE COMMISSION OF THE EUROPEAN COMMUNITIES , THE FIRST DATED 28 FEBRUARY 1979 , THE SECOND DATED 3 MAY 1979 .

2 IN THE FIRST CASE ( 33/79 ) THE APPLICANT CLAIMS THAT THE COURT SHOULD :

( A ) ANNUL THE ' ' DECISIONS ' ' OF 30 JUNE 1978 OF MR PETIT-LAURENT AND OF 3 NOVEMBER 1978 OF MR BAICHERE WHICH ALLEGEDLY RELIEVED HIM OF HIS POST AS HEAD OF THE SPECIAL DEPARTMENT FOR STATISTICS RELATING TO ' ' OTHER COUNTRIES ' ' WITHIN THE STATISTICAL OFFICE AND ASSIGNED HIM TO THE POST OF PRINCIPAL ADMINISTRATOR WITH RESPONSIBILITY FOR SPECIAL ASSIGNMENTS ON METHODS IN THE SPECIAL ' ' STATISTICAL METHODS AND CLASSIFICATION OF EXTERNAL TRADE ' ' DEPARTMENT OF THE STATISTICAL OFFICE AFTER ITS REORGANIZATION ;

( B)ANNUL THE COMMISSION ' S DECISION OF 7 JUNE 1978 ASSIGNING G . LOHMANN TO THE POST OF HEAD OF THE SPECIAL ' ' WAGES AND INCOMES ' ' DEPARTMENT OF THE STATISTICAL OFFICE ;

( C)AWARD DAMAGES .

3 IN THE SECOND ACTION ( 75/79 ) THE APPLICANT CLAIMS THAT THE COURT SHOULD ANNUL THE EXPRESS DECISION OF THE COMMISSION OF 21 MARCH 1979 REJECTING HIS COMPLAINT DATED 26 JULY 1978 AND REGISTERED ON 31 JULY 1978 AGAINST THE DECISION TO TRANSFER HIM .

4 BY AN ORDER OF 30 MAY 1979 THE COURT ( FIRST CHAMBER ) DECIDED TO JOIN THE TWO CASES . IN THE COURSE OF THE PROCEEDINGS THE APPLICANT FOR HIS PART WITHDREW HIS CLAIM RELATING TO THE POSTING OF G . LOHMANN .

I - THE SUBJECT-MATTER AND ADMISSIBILITY OF THE ACTIONS

5 ON 7 JUNE 1978 THE COMMISSION INITIATED A REORGANIZATION OF THE STATISTICAL OFFICE . THIS REORGANIZATION INVOLVED , INTER ALIA , THE MERGER OF TWO SPECIAL DEPARTMENTS IN DIRECTORATE F , NAMELY THE ' ' ACP COUNTRIES ' ' DEPARTMENT AND THE ' ' OTHER COUNTRIES ' ' DEPARTMENT , OF WHICH A . DE MICHELIS AND THE APPLICANT WERE THE RESPECTIVE HEADS , INTO ONE DEPARTMENT CALLED ' ' ANALYSIS OF EXTERNAL TRADE AND STATISTICS ' ' ASSIGNED TO A . DE MICHELIS . SINCE THE APPLICANT ' S POST HAD THUS BEEN ABOLISHED , THE COMMISSION , BY DECISION OF 7 AND 29 JUNE 1978 , NOTIFIED TO THE DIRECTOR-GENERAL OF THE STATISTICAL OFFICE ON 30 JUNE 1978 AND TO THE APPLICANT ON 3 NOVEMBER 1978 , ENTRUSTED TO THE LATTER AS PRINCIPAL ADMINISTRATOR , THAT IS TO SAY WITHOUT ANY CHANGE IN HIS GRADE , SPECIAL ASSIGNMENTS ON METHODS IN THE REORGANIZED ' ' STATISTICAL METHODS AND CLASSIFICATION OF EXTERNAL TRADE ' ' DEPARTMENT , AT THE HEAD OF WHICH WAS MR SANNWALD .

6 AS FROM 26 JULY 1978 THE APPLICANT , WHO KNEW OF THE DECISION AFFECTING HIM , ALTHOUGH HE HAD NOT YET BEEN NOTIFIED THEREOF , SUBMITTED TO THE APPOINTING AUTHORITY A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , WHICH WAS REGISTERED ON 31 JULY 1978 , PROTESTING AGAINST THE DECISION AFFECTING HIM AND ASKING TO RETAIN THE FUNCTIONS OF HEAD OF DEPARTMENT . THE COMMISSION DID NOT REPLY TO THIS COMPLAINT WITHIN THE PERIOD OF FOUR MONTHS PRESCRIBED BY THE SAID ARTICLE 90 SO THAT IT IS DEEMED TO HAVE TAKEN AN IMPLIED DECISION REJECTING IT AGAINST WHICH THE FIRST ACTION IS DIRECTED .

7 ON 21 MARCH 1979 THE COMMISSION GAVE NOTICE , OUT OF TIME , OF THE ABOVE-MENTIONED EXPRESS DECISION REJECTING THE APPLICANT ' S COMPLAINT . IT POINTED OUT THAT THE ASSIGNMENT IN DISPUTE HAD BEEN TO ANOTHER POST WITHIN THE SAME BASIC POST , NAMELY THAT OF PRINCIPAL ADMINISTRATOR CORRESPONDING TO THE CAREER BRACKET A 4-A 5 , AS THAT TO WHICH THE APPLICANT HAD PREVIOUSLY BEEN ASSIGNED , SO THAT THIS NEW POSTING IN NO WAY AMOUNTED TO A DOWNGRADING AND DID NOT AFFECT THE RIGHT OF AN OFFICIAL TO OCCUPY A POST CORRESPONDING TO HIS GRADE .

8 IT IS AGAINST THIS EXPRESS DECISION THAT THE SECOND ACTION IS DIRECTED , WHICH THE COMMISSION CONSIDERS TO BE INADMISSIBLE SINCE IT IS MERELY OF A CONFIRMATORY NATURE .

9 ALTHOUGH THE COURSE OF BRINGING A SECOND ACTION AGAINST AN EXPRESS DECISION REJECTING AN OFFICIAL ' S COMPLAINT AFTER THE TIME-LIMIT FOR SO DOING HAS EXPIRED ORIGINATES IN THE COMMISSION ' S BAD PRACTICE OF NOT REPLYING TO OFFICIALS ' COMPLAINTS WITHIN THE PERIOD OF FOUR MONTHS PRESCRIBED BY ARTICLE 90 OF THE STAFF REGULATIONS , IT IS NONE THE LESS TRUE THAT , ALTHOUGH AN EXPRESS DECISION WHICH PURELY AND SIMPLY REJECTS A COMPLAINT MAY DISCLOSE THE GROUNDS FOR THIS REJECTION , IT ONLY CONFIRMS THE IMPLIED DECISION WHICH PRECEDED IT . IT IS MOREOVER NECESSARY TO POINT OUT THAT EVERY DECISION PURELY AND SIMPLY REJECTING A COMPLAINT , WHETHER IT BE EXPRESS OR IMPLIED , ONLY CONFIRMS THE ACT OR FAILURE TO ACT TO WHICH THE COMPLAINANT TAKES EXCEPTION AND IS NOT , BY ITSELF , A DECISION WHICH MAY BE CHALLENGED . IT IS ONLY WHEN THIS DECISION UPHOLDS ALL OR PART OF THE COMPLAINT OF THE PERSON CONCERNED THAT IT WILL , IN APPROPRIATE CIRCUMSTANCES , CONSTITUTE BY ITSELF A DECISION AGAINST WHICH AN ACTION CAN BE BROUGHT .

10 IT IS THEREFORE NECESSARY TO CONCLUDE FROM THE FOREGOING THAT THE SECOND ACTION HAS NO PURPOSE AND IS THEREFORE INADMISSIBLE AND THAT THE FIRST ACTION IS IN SUBSTANCE CONCERNED WITH THE APPLICANT ' S POSTING AS HEAD OF DEPARTMENT BEING CHANGED TO THAT OF PRINCIPAL ADMINISTRATOR .

II - THE SUBSTANCE

A - THE ANNULMENT OF THE DECISION RELATING TO THE APPLICANT ' S POSTING

THE FIRST SUBMISSION

11 THE FIRST OF THE APPLICANT ' S ARGUMENTS AGAINST THE CONTESTED DECISION IS THAT IT INFRINGES THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS ACCORDING TO WHICH ANY DECISION ADVERSELY AFFECTING AN OFFICIAL SHALL STATE THE GROUNDS ON WHICH IT IS BASED .

12 ALTHOUGH DOUBTS MAY BE ENTERTAINED WHETHER THE DECISION ASSIGNING THE APPLICANT TO A NEW POST SHOULD BE REGARDED AS A TRANSFER WITHIN THE MEANING OF THE STAFF REGULATIONS RATHER THAN AS AN INTERNAL MEASURE RELATING TO THE REORGANIZATION OF THE DEPARTMENT , THE FACT REMAINS THAT IN THIS CASE IT HAS HAD THE SAME EFFECT AS A TRANSFER , A MEASURE WHICH THE COURT HAS HELD , IN PARTICULAR IN ITS JUDGMENT OF 27 JUNE 1973 ( CASE 35/72 WALTER KLEY V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1973 ) ECR 679 ), MAY AMOUNT TO A DECISION ADVERSELY AFFECTING AN OFFICIAL .

13 IN FACT , ALTHOUGH THE ASSIGNMENT TO A NEW POSTING WAS EFFECTED IN THE SAME BASIC POST OF PRINCIPAL ADMINISTRATOR AND IN THE SAME GRADE , THE FACT MUST BE BORNE IN MIND THAT THIS BASIC POST INCLUDES ACTIVITIES THE DIFFERENT NATURE OF WHICH IS EVIDENT FROM THEIR DESCRIPTION , NAMELY : ( 1 ) OFFICIAL IN CHARGE OF ONE SECTOR OF ACTIVITY IN A DIVISION ; ( 2 ) HEAD OF A SPECIAL DEPARTMENT ; ( 3 ) HIGHER OFFICIAL ENGAGED IN PLANNING , ADVISORY AND SUPERVISORY DUTIES IN ONE SECTOR OF ACTIVITY ; AND ( 4 ) ASSISTANT TO A HEAD OF DIVISION . THIS DIFFERENCE IS MOREOVER VISIBLE IN THE FACT THAT TWO DIFFERENT NAMES OF PRINCIPAL ADMINISTRATOR OR HEAD OF DEPARTMENT CORRESPOND TO THE POSTS COMPRISED IN THE BASIC POSTS . SUCH A MODIFICATION OF THE DUTIES ASSIGNED TO AN OFFICIAL WHICH RESULTS IN AN ALTERATION OF THE DESCRIPTION OF DUTIES COULD HAVE AN EFFECT ON THE FUTURE PROSPECTS OF THE OFFICIAL CONCERNED AND MAY BE SUCH AS TO AFFECT HIM ADVERSELY .

14 IT FOLLOWS THAT THE DECISION IN QUESTION HAD IN PRINCIPLE TO SET OUT THE GROUNDS ON WHICH IT IS BASED AND IT IS NECESSARY TO ASCERTAIN WHETHER THIS REQUIREMENT HAS BEEN MET WHILE TAKING INTO ACCOUNT THE FACT THAT , SINCE IT IS A MEASURE CONCERNING ORGANIZATION OF THE DEPARTMENT , 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 RESULT FOR THE OFFICIAL CONCERNED FROM THIS KIND OF MEASURE .

15 THE NOTIFICATION OF THE CONTESTED DECISION TO THE APPLICANT ON 3 NOVEMBER 1979 FROM THE DIRECTOR-GENERAL OF PERSONNEL AND ADMINISTRATION ITSELF DOES NO MORE THAN MERELY JUSTIFY THE NEW POSTING BY REFERENCE TO THE MEASURES FOR THE REORGANIZATION OF THE STATISTICAL OFFICE . IN ORDER TO DECIDE WHETHER THE REQUIREMENT LAID DOWN IN ARTICLE 25 HAS BEEN MET IT IS ADVISABLE HOWEVER TO TAKE INTO CONSIDERATION NOT ONLY THE DOCUMENT GIVING NOTICE OF THIS DECISION BUT ALSO THE CIRCUMSTANCES IN WHICH IT WAS TAKEN AND BROUGHT TO THE KNOWLEDGE OF THE OFFICIAL CONCERNED AS WELL AS THE DEPARTEMENTAL MEMORANDA AND OTHER COMMUNICATIONS UNDERLYING IT WHICH HAVE CLEARLY GIVEN THE APPLICANT INFORMATION AS TO THE GROUNDS AND THE BASIS OF THE SAID DECISION . SINCE THE PURPOSE OF THE DUTY TO STATE THE GROUNDS ON WHICH A DECISION IS BASED 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 OBLIGATION MUST BE DETERMINED ON THE BASIS OF THE PARTICULAR FACTS OF EACH CASE .

16 IN THIS INSTANCE IT IS QUITE CLEAR FROM THE FILE ON THE CASE THAT THE APPLICANT WAS GIVEN AMPLE INFORMATION ON THE COMMISSION ' S INTENTION TO EFFECT A MERGER OF THE SPECIAL DEPARTMENT OF WHICH HE WAS HEAD WITH ANOTHER DEPARTMENT AND ALSO ON THE CONSEQUENTIAL ABOLITION OF ONE OF THE POSTS OF HEAD OF DEPARTMENT . THE COMPLAINT DATED 26 JULY 1978 AND REGISTERED ON 31 JULY 1978 , THAT IS TO SAY BEFORE HE HAD BEEN OFFICIALLY NOTIFIED OF THE DECISION AFFECTING HIM , LEAVES NO DOUBT ON THIS POINT , ESPECIALLY AS IT MENTIONS THAT IN FEBRUARY AND JULY 1978 THE APPLICANT DISCUSSED THE PROJECTED REORGANIZATION AND ITS CONSEQUENCES WITH THE DIRECTOR-GENERAL OF THE STATISTICAL OFFICE .

17 IN THOSE CIRCUMSTANCES AND SINCE THE DECISION AT ISSUE IS NECESSARILY LINKED TO THE ORGANIZATION OF THE SERVICE IN THE INTERESTS OF THE SERVICE , IN RESPECT OF WHICH THE COMPETENT AUTHORITY MUST NECESSARILY HAVE A WIDE DISCRETION , THE CONTESTED DECISION MAY BE CONSIDERED TO HAVE SET OUT ADEQUATELY THE GROUNDS ON WHICH IT IS BASED SO THAT THE SUBMISSION MADE IN THIS CONNEXION MUST BE REJECTED .

SECOND AND THIRD SUBMISSIONS

18 THE APPLICANT THEN PLEADS INFRINGEMENT OF ARTICLES 5 AND 7 OF THE STAFF REGULATIONS ON THE GROUND THAT THE DUTIES ASSIGNED TO HIM ARE NOT CONSISTENT WITH A POST CORRESPONDING TO HIS GRADE SO THAT THE CONTESTED DECISION IS IN FACT A DOWNGRADING . IN SUPPORT OF THIS COMPLAINT HIS MAIN SUBMISSION IS THAT HIS PREVIOUS DUTIES WERE , BY REASON OF THEIR EXTENT , IMPORTANCE AND THE OFFICIAL PREROGATIVES ATTACHING TO THEM , OF A DISTINCTLY HIGHER ORDER THAN HIS PRESENT DUTIES . HE EMPHASIZES IN PARTICULAR THAT IT IS THE PRACTICE OF THE ADMINISTRATION TO TREAT THE HEAD OF A SPECIAL DEPARTMENT , ESPECIALLY WITH REGARD TO THE INFORMATION WHICH HE RECEIVES , ON THE SAME FOOTING AS OFFICIALS IN GRADE A 3 . HE PLEADS IN ADDITION BREACH OF THE DUTY KNOWN IN GERMAN ADMINISTRATIVE LAW AS ' ' FURSORGEPFLICHT ' ' ( DUTY TO LOOK AFTER THE WELL-BEING OF OFFICIALS ) ACCORDING TO WHICH WHEN THE AUTHORITY ENACTS MEASURES IT MUST TAKE ACCOUNT NOT ONLY OF THE INTERESTS OF THE SERVICE BUT ALSO OF THE INTEREST OF THE OFFICIAL IN AVOIDING ANY DETRIMENT TO HIS CAREER .

19 BOTH OF THESE SUBMISSION MUST BE REJECTED .

20 REGARDING THE SUBMISSION BASED ON ARTICLES 5 AND 7 OF THE STAFF REGULATIONS IT SHOULD BE NOTED THAT 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 . IN THIS CONNEXION THE APPLICANT DOES NOT DENY THAT THE DUTIES TO WHICH HE WAS ASSIGNED , DESCRIBED AS THOSE OF A PRINCIPAL ADMINISTRATOR , WHEN HE WAS ENTRUSTED WITH SPECIAL ASSIGNMENTS ON METHODS , CORRESPOND VERY CLOSELY TO ONE OF THE DESCRIPTIONS OF POSTS COMPRISED IN THE BASIC POST OF PRINCIPAL ADMINISTRATOR AT THE STATISTICAL OFFICE , NAMELY ' ' HIGHER OFFICIAL ENGAGED IN PLANNING , ADVISORY OR SUPERVISORY DUTIES IN ONE SECTOR OF ACTIVITY ' ' .

21 FURTHERMORE IF THE DIFFERENCES IN THE NATURE OF THE TASKS AND IN THE SITUATION OF OFFICIALS IN THE SAME BASIC POST ARE JUSTIFIED BY THEIR DIFFERING DUTIES , SUCH DIFFERENCES DO NOT PERMIT AN OFFICIAL , WHO , WHEN CHANGING FROM ONE POST TO ANOTHER , CEASES TO ENJOY THESE SPECIAL CHARACTERISTICS OF HIS WORK , TO CONCLUDE THAT HIS INTERESTS HAVE BEEN ADVERSELY AFFECTED . THE SPECIAL CHARACTERISTICS OF CERTAIN DUTIES , BE THEY FAVOURABLE OR UNFAVOURABLE , ATTACH TO THE DUTIES AND NOT TO THE OFFICIAL PERSONALLY .

22 WITH REGARD TO THE BREACH OF THE ' ' FURSORGEPFLICHT ' ' ( DUTY TO LOOK AFTER THE WELL-BEING OF OFFICIALS ) IT SHOULD BE NOTED THAT , ALTHOUGH THIS CONCEPT IS NOT MENTIONED IN THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES , 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 , IN THIS CASE HIS ASSIGNMENT TO A SPECIFIC POST , 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 INDIVIDUAL CONCERNED .

23 EXAMINATION OF THE FILE ON THE CASE AND OF THE MATTERS TO BE TAKEN INTO CONSIDERATION WHICH EMERGED FROM THE WRITTEN AND ALSO FROM THE ORAL PROCEDURE HAVE BROUGHT TO LIGHT NO FACTOR OF SUCH A KIND AS TO RAISE A PRESUMPTION THAT THE COMMISSION FAILED TO CARRY OUT A COMPREHENSIVE EXAMINATION OF ALL THE DETERMINATIVE FACTORS INCLUDING THOSE RELATING TO THE PERSONAL SITUATION OF THE APPLICANT BEFORE ASSIGNING HIM TO HIS PRESENT DUTIES . IN PARTICULAR THERE IS NO REASON TO SUPPOSE THAT , BY APPOINTING ANOTHER OFFICIAL , WHO HAD ALSO PREVIOUSLY DIRECTED A SPECIAL DEPARTMENT TO DIRECT THE DEPARTMENTS WHICH HAD BEEN MERGED , THE COMMISSION ALLOWED ITSELF TO BE INFLUENCED BY REASONS UNCONNECTED WITH THE PRINCIPLES OF JUSTICE AND OF GOOD ADMINISTRATION . MOREOVER ACCORDING TO THE CONSISTENT CASE-LAW IF THE APPOINTING AUTHORITY MAKES A CHOICE FROM SEVERAL OFFICIALS HAVING THE SAME QUALIFICATIONS , IT DOES NOT , IN SO 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 .

FOURTH SUBMISSION

24 ACCORDING TO THE APPLICANT THE CONTESTED DECISION CONSTITUTES A BREACH OF THE RIGHTS OF THE DEFENCE BECAUSE , AS IT IS A MEASURE LIKELY TO CAUSE SERIOUS DAMAGE TO ( HIS ) INDIVIDUAL INTERESTS , IT COULD NOT BE TAKEN WITHOUT HIM BEING IN A POSITION TO MAKE HIS POINT OF VIEW KNOWN .

25 THIS CASE CANNOT BE SAID TO CONCERN ' ' THE RIGHTS OF THE DEFENCE ' ' BUT ONLY A GENERAL PRINCIPLE OF GOOD ADMINISTRATION TO THE EFFECT THAT AN ADMINISTRATION 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 . THE CONTESTED DECISION , UNDER WHICH THE APPLICANT RETAINS ALL THE ADVANTAGES OF HIS GRADE AND BASIC POST , IS NOT OF SUCH A KIND AS TO MAKE IT NECESSARY TO COMPLY WITH FORMAL REQUIREMENTS OTHER THAN THOSE PROVIDED BY ARTICLE 90 OF THE STAFF REGULATIONS FOR THE PURPOSE OF PROTECTING THE INTERESTS OF OFFICIALS AND SERVANTS , TO WHICH IS TO BE ADDED , IF NEED BE , JUDICIAL REVIEW BY THE COURT .

26 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION FOR ANNULMENT IS UNFOUNDED AND MUST BE DISMISSED .

B - THE CLAIM FOR COMPENSATION

27 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE COMMISSION HAS BEEN GUILTY OF NO WRONGFUL ACT OR OMISSION SO THAT THIS CLAIM MUST ALSO BE DISMISSED .

Decision on costs

28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

29 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .