JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

11 July 1996

Case T-102/95

Jean-Pierre Aubineau

v

Commission of the European Communities

‛Officials — Members of the temporary staff — Contract of service — Transfer — Place of employment’

Full text in French II-1053

Application for:

annulment of the decision of the Director General of the Joint Research Centre, set out in his memorandum of 27 February 1995, to effect a compulsory transfer of the applicant to Ispra as Adviser to the Director of the Institute for System Engineering and Informatics, and for compensation for nonmaterial damage.

Decision:

Dismissal.

Abstract of the Judgment

In March 1987 the applicant was engaged by the Joint Research Centre (JRC) as a member of the temporary staff in the scientific and technical service to perform the duties of Head of the Informatics Division of the JRC at Ispra.

His compulsory transfer in 1991 gave rise to a dispute which was settled by a compromise set out in a supplement to his contract of service, dated February 1993, under which the applicant's contract as a member of the temporary staff was transformed into a contract for an indefinite period and his place of posting was stated to be Brussels.

In view ofthat compromise, the applicant was posted on 1 November 1992 to the Directorate-General of the JRC in Brussels and seconded to the Directorate-General for External Relations (DG I) as Adviser in the Programmes Directorate.

With effect from October 1993 the applicant was seconded to the Humanitarian Office of the European Communities. On 1 February 1995 he was reinstated in the Directorate-General of the JRC. On 27 February 1995 the Director General of the JRC informed the applicant that, at the JRC in Brussels, there was no post corresponding to his qualifications and that, consequently, he was being posted to Ispra with effect from 1 April 1995 as Adviser to the Director of the Institute for System Engineering and Informatics. On 31 March 1995, the date on which he was to take up his duties in Ispra was postponed until 1 May 1995 in order to enable him tò look for a post in Brussels. On 7 April 1995 the applicant lodged a complaint, which was rejected.

The claim for annulment

The first and second pleas: breach of the applicant's contract of employment and breach of Article 7 of the Staff Regulations

The obligation on the Community institutions to post their staff solely in the interests of the service applies even when it may lead to a change in the place of posting not desired by the person concerned. That change, even though it may cause the person concerned family and financial difficulties, does not constitute an abnormal and unforeseeable event in an official's career, when the places of employment to which he may be assigned are spread over several States and the appointing authority may be required to meet needs of the service which compel it to decide such transfer. That conclusion applies a fortiori in the case of members of the temporary staff whose contracts of employment may be terminated on three months' notice. Nor does the scheme of the Staff Regulations provide any support for the argument that a posting should normally not take place without the consent of the person concerned; such an approach would place unacceptable limits on the freedom of the institutions to organize their departments and to adapt them as their needs change (paragraphs 28 and 29).

See: 61/76 Geist v Commission [1977] ECR 1419, para. 34; 161/80 and 162/80 Carbognaniand Coda Zabetta v Commission [1981] ECR 543, para. 28; 23/87 and 24/87 Minger and Virgili v Parliament [1988] ECR 4395. paras 17 and 18

However, it does not follow that the compromise and supplement to the contract at issue are devoid of legal effects in so far as they changed the applicant's place of posting. The Court considers that by reposting the applicant to the JRC in Brussels in the circumstances of the present case, the Commission undertook to take all reasonable measures to enable him to remain in Brussels in so far as that was compatible with the interests of the service. The Court considers that the applicant has not shown the existence of such an interest in the context of the present dispute (paragraphs 31 to 34).

The plea alleging breach of the principle of good administration

The Court finds that the Commission did not infringe the principle of good administration, since the applicant ceased to carry out duties in Brussels from the end of January 1995 and the vacant posts for which he was eligible to apply had in any event to be brought to the attention of all the Commission's staff, whatever their place of posting. Indeed, the Court considers that the Commission interpreted its duty to have regard for the welfare of its officials in a manner which was particularly favourable to the applicant, since it permitted him to remain in Brussels until 1 May 1995, without carrying out any duties, in order to allow him to find a post corresponding to his grade and professional qualifications (paragraph 38).

The plea alleging breach of the principle of the protection of legitimate expectations

The scope of the principle of the protection of legitimate expectations is determined by the circumstances to which it applies and in particular the relationship between the parties concerned. The applicant cannot therefore derive from that principle any rights greater than those to which he was entitled under his contract, as amended, and under the rules applicable to other servants of the European Communities. It follows that the applicant could have had a legitimate expectation in his continued employment in Brussels only in so far as he obtained work there. The Court considers that, since there was no work corresponding to his grade and qualifications, the applicant could not expect that his posting to Brussels would continue indefinitely (paragraphs 44 to 46).

The Court finds that the applicant has not shown the existence of another post to which he could have been assigned. By posting him to Ispra instead of terminating his contract the Commission chose the only other option which was compatible at the same time with its own obligation to act in accordance with the interests of the service. If the Commission's approach was unacceptable to the applicant, he was entitled to terminate his contract by giving three months' notice (paragraph 47).

The claim for compensation

Since the applicant has not shown that the Commission's conduct was unlawful when it posted him to Ispra, the Court rejects the claim for the award of token damages for the nonmaterial damage allegedly suffered. As to the possible expenses incurred upon his departure for Ispra, the Court finds that it has not been shown that the applicant had to incur such expenses personally. Furthermore, it has not been disputed that the applicant was entitled to allowances under the Staff Regulations arising upon the change in his place of employment (paragraphs 52 and 53).

The applicant's request to exclude certain documents from the proceedings

The Court considers it unnecessary to rule on the applicant's request to exclude from the proceedings two documents submitted by the Commission with its defence (paragraph 55).

Operative part:

The application is dismissed.