CELEX: 61974CC0004(01)
Language: en
Date: 1975-06-26 00:00:00
Title: Opinion of Mr Advocate General delivered on 26 June 1975. # Giuseppe Scuppa v Commission of the European Communities. # Joined cases 4 and 30-74.

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI
      DELIVERED ON 26 JUNE 1975 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      
               1.
            
            
               In accordance with my previous opinion in these proceedings my task now is, following the reopening of the oral procedure, to comment on the substance of Case 4/74.
               The application concerns the decision to transfer Dr. Scuppa within his own institution. Whereas the main object of the application was, initially, to obtain annulment of that decision and damages against the defendant, during the course of the proceedings the applicant changed the order of his conclusions to make his main claim one of compensation for material and non-material damage which, he claims, resulted from the disputed decision. For the reasons given in my first opinion, I shall confine myself here •to examining the question only from the viewpoint of non-material damage.
               Non-material damage. Within the master-and-servant relationship an official is undoubtedly entitled to respect for his personality. The infringement of this right is bound to entail consequences, apart from any compensation for material damage and even in the absence of the conditions for annulment of the disputed act. It is clear that there is no question here of an action based on non-contractual liability which, under Article 215 of the EEC Treaty, cannot be commenced without previous enquiry whether a general principle common to the laws of the Member States is involved. At most we should be in sight of the general rule on contractual liability referred to in the first paragraph of Article 215. But on questions relating to employment, it is the specific provisions of the Staff Regulation of Officials which apply.
               Article 24 of the Regulations safeguards an official from any attack from outside, which is all the more reason why he should be assured of protection inside the institution where he is employed. In any case, as far as the relationship of employment is concerned, the Staff Regulations confer unlimited jurisdiction on the Court, by virtue of which justice and equity require that a means of redress should be found for any encroachment on the very rights which appertain to self-respect as a human being and in one's occupation. The Court has, from the beginning, been concerned to see that the non-material rights of officials are upheld. In the judgment in Joined Cases 7/56 and 3 to 7/57 of 12 July 1957 it was expressly declared: ‘The emotional reactions to this attitude [on the part of the defendant institution], and the anxiety and embarrassment which they caused to the applicants constituted non-material damage for which they are entitled to claim compensation’. (Rec. 1967, p. 130) Other decisions of the Court always confirms this particular from of protection, for which there is no need to prove the illegality of the offending measure (see the judgments in Joined Cases 43, 45 and 48/59 of 15 July 1960, Rec. 1960 p. 956; Joined Cases 19 and 65/63, [1965] ECR 557; Cases 84/63, 87/63 and 93/63, [1964] ECR 334, 484 and 511; Case 25/60 [1962] ECR 31). An official's right to compensation for damage which he has suffered, without regard to the legality or otherwise of the disputed decision, was again upheld in a recent judgment of the Court of 12 July 1973 in Joined Cases 10 and 47/72, Di Pillo [1973] ECR 772.
               There can be no doubt, therefore, that the practical protection of an aspect of an official's personality may also take the form of the grant of compensation for any non-material damage.
            
         
               2.
            
            
               We can now go on to establish whether there exists, in this case, the essential condition for such a grant, namely improper conduct on the part of those empowered to act for the Commission.
               The decision transferring him from the division responsible for social structures in agriculture and the problem of land tenure to a division with more limited responsibilities and duties which could be held to be less important in the general field of development of agricultural policy, such as that concerned with tobacco and hops, the applicant believes to have been a trick to induce him to leave the service of the Commission of his own free will as part of the special arrangements concerning voluntary retirement; or at least he sees the measure as furthering a plan designed to exclude him from his duties in the division of primary importance, for which he had assumed responsibility at the beginning of 1969.
               There is no doubt that, in view of the different powers of the two divisions concerned, the applicant's own interests, and the importance of the division of which he had been in charge for several years, and in which capacity he had, in November 1969 and January 1972, been in every respect given excellent reports, his transfer to the other division, especially when viewed against the background of the developments which led to the decision, was liable not only to cause him non-material damage, but also perhaps damage his prospects in his career.
               The various incidents quoted by the applicant to demonstrate the animosity which he claims was shown towards him by his immediate superior and which amounted to an actual boycott as far as the allocation of duties was concerned (allegations which were not substantially contradicted by the basic facts produced in evidence) have been explained in general terms by the defendant as a reaction to the behaviour of the applicant, who displayed an attitude of systematic refusal to recognize operational requirements and the interests of the service. The Commission states that, at the time when the Mansholt plan for changing the agricultural structures was in process of being launched, the interests of the service required the head of Division E/1 to be given specific responsibilities and tasks of coordination because the Division had been called upon to lay down the general guidelines for certain activities of other divisions, whose functions were, under the plan, required to be closely interdependent. The applicant's reaction to this organization of the department, it is alleged, was negativistic and he refused to accept a situation which was common to the other heads of division in his directorate in their relationship to the head of Division E/l and which the applicant regarded as an unacceptable position of subordination which was incompatible with his grade and responsibilities. The defendant regards this hostile attitude as being at the root of all the incidents alleged by the applicant to have taken place.
               It is clear from the file that the head of Division E/l regularly issued orders to the applicant, asking him to supply data, notes and information within a given time on questions within the province of Division E/3. On no occasion did the applicant fail to supply the information requested on time. The defendant has not submitted one concrete fact as evidence of failure on the applicant's part to comply with his official duties.
               On the contrary, it is clear that he showed a high degree of dedication to the service. In view of this, he cannot be criticized merely because he did not like being made de facto subordinate to a colleague. In an organization where there is, as is well known, such a highly developed consciousness of the chain of command as there appears to be in the offices of the Commission, it accords with the respect due to the authority of each official that he should receive orders as to the work to be performed from his superior and not from an official with the same grade and title as himself.
               The Commission tells us that it was as a result of the negative attitude of the applicant in this situation that the difficulties arose which subsequently led to the developments which underly this case. Nevertheless, I am unable to understand how an attitude of protest maintained with due deference to the authorities and which did not conflict with the duty to cooperate incumbent on the applicant as a serving official, could have justified the way in which he was forcibly and progressively prevented from effectively performing his duties as head of division, or the ill will shown towards him, which is the only explanation of certain discourtesies, accompanied by wholly gratuitous criticisms, to which the applicant was subjected by the director who was in charge of him.
            
         
               3.
            
            
               Study of the applicant's personal file reveals that his career in the service of the Commission was an exemplary one. Since entering the service in May 1959 as a principal administrator assisting the Head of Division IV and later Division III in their dealings with the Council and with the Committee of Permanent Representatives, he has performed his duties in a manner which repeatedly won high praise from his superiors.
               The applicant was appointed head of division at the beginning of 1969, and assigned to Division E/3 in the Directorate-General for Agriculture, and has received excellent reports from every point of view since his first year of service in his new capacity. In the report drawn up in November 1969, attention is drawn to his lively mind, enthusiasm and capacity for work and his devotion to duty, and to the fact that he possessed the personal authority and qualities of command needed to assume responsibility for a division.
               Again, the second report of his work as Head of Division, compiled by his immediate superior on 28 January 1972, confirms his excellence from the point of view of ability, industry and conduct in the service. Among the comments is a reference to his marked sense of responsibility.
               However, it appears from the papers in the case that, from 1970, the applicant had already begun to point out, although with deference, that he was being prevented from playing a full part in work appropriate to the responsibilities and the particular province of his division, as exemplified by the fact that he was excluded from certain meetings which took place under the aegis of the Directorate-General for Agriculture to deal with problems in which his division had a direct interest.
               Observations of this kind concerning various difficulties and obstacles in the way of a full discharge of his responsibilities appear in succession and become more and more frequent in the following years, without however eliciting any reaction on the part of the responsible director, to whom the applicant repeatedly turned with expressions of confidence in the outcome. Against this background, the letter's comment referred to above concerning ‘the marked sense of responsibility’ that he had observed in Dr Scuppa might seem to be a joke. But to place this interpretation upon it might perhaps be to impute a non-existent motive to its author, so it is best to take it literally. In that case, however, it is difficult to explain the negative attitude adopted throughout towards the person responsible for a division of first-class importance within the area of control entrusted to him.
               The nature of the present dispute compels me to come down to details because only the most careful study can produce a clear picture of the situation in which the applicant had to carry out his work and, at the same time, shed light on the meaning of the decision to transfer him on which the applicant bases his claim for compensation for the resultant material and non-material damage.
            
         
               4.
            
            
               Dr Scuppa quotes a whole series of developments which occurred after he took up his duties in his post as Head of Division E/3 to show that he suffered indignities of various kinds after being placed in a situation of, for practical purposes, de facto subordination to a colleague of the same grade (the person responsible for Division E/l); in other words, in a situation which could not be justified by the need for the latter merely to act as coordinator of the activities of the various divisions in a single directorate. He was systematically excluded from meetings which closely affected his division, he was kept in ignorance of the work of the Commission and of facts and information in which his division was interested; the officials immediately junior to him received instructions not only from his director, though he was not even informed of this (as will be seen from Annex 19 to the administrative complaint of 14 February 1973,) but also from his colleague, the Head of Division E/l. He was prevented from having any direct contact whatever with his superiors, who systematically refused to meet him or to reply to his requests for explanations or to his efforts to try to remove any misunderstandings. Requests submitted in scrupulously correct terms concerning the day-to-day requirements of the service met with discourteous replies and gratuituous accusations.
               I refer to specific facts which the applicant mentioned at the material time in notes communicated to his immediate superior, the truth of which has not been challenged by the Commission. The first point to be borne in mind is that, as revealed by document No 1641/VI/69 of 10 February 1969 (Annex No 5 to the administrative complaint), the decision to entrust Division E/l with the task of giving general guidance on work involving a whole series of important responsibilities borne by the applicant's division and by other divisions in the same directorate, constituted a general measure applicable within the directorate which had nothing to do with the applicant, who started work as divisional head subsequent to that date. Already, however, at the beginning of September 1969, the applicant notes that the Head of Division E/l was not confining himself to giving general guidance on policy concerning work in his division, but, in addition to calling on his colleague, the Head of Division E/3 for specific services (as I have already stated), he was dealing directly with the latter's subordinates, giving them their orders with very precise instructions concerning their work and exact time-limits for their performance. Incidents of this kind, which undoubtedly amounted to interference in a manner which was incompatible with the chain of responsibility and which did not fall within the range of tasks imposed on the Head of Division E/l to give general guidance, make it impossible to blame the applicant for expressing his reservations in clear and decisive terms as soon as he took up his duties as head of division (see note of 6 October 1969 to Mr Rencki, Head of Division E/l, copy to the Director, in Annex VI to the above-quoted complaint.
               Important changes in the applicant's responsibilities, were communicated to him at the last moment and without previous consultation after his subordinates had already been informed of them (see Annex 17 to the above-quoted administrative complaint).
               In Annex 20 there is a note dated 5 June 1972 addressed to Mr Craps, the Director, in which the applicant complains of being in constant need of the information necessary for the work of his division or of receiving it too late to make any use of it in discharging his responsibilities. A further observation on the same lines, dealing with a specific case, is contained in Annex 21, relating to a document dated 15 June 1972.
               To these respectful but clear and precise approaches by the applicant, the superior to whom they were addressed appears at no time to have replied. All efforts to clear up any misunderstandings and eliminate difficulties were simply ignored. In the note to his Director on 18 February 1972 the applicant had already explained the various problems with which he was faced in carrying out his responsibilities as head of division. This was a document of 18 pages packed with facts whose subject-matter was clearly summarized in the following terms;
               ‘Request for assurances of respect for
               
                        —
                     
                     
                        my duty (and my right) to fulfil my obligations to the Commission effectively, without the constant interference which I now have to suffer, as regards the assumption of my duties, my authority and the opportunities for access and information to which I am entitled as Head of Division VI — E/3;
                     
                  
                        —
                     
                     
                        my self-respect as a human being and as regards my occupation’.
                     
                  The applicant concluded this detailed list of complaints by asking his director to agree to meet him and, in a constructive spirit, have a frank discussion on the difficulties mentioned with a view to removing them and clearing the ground of a number of unnecessary problems.
               In his administrative complaint, the applicant expressed his disappointment at the total absence of any reply on the part of his director to this note as well, an assertion which has not been denied by the defendant.
               His director's refusal to have any direct contact with him is further evidenced by the notes addressed to the director dated 16 and 21 March 1973 (Annexes 2 and 9 to the administrative complaint). The obviously gratuituous accusations, crudely expressed in the note of reply addressed to the applicant on 21 March 1973 (Annex 8), create a strong impression of a want of objectivity and of balance on the part of the superior in dealing with his Head of Division. And what I would describe as the barrack-room manner in which, at a meeting with the Council, the same director ordered him to leave the room and make way for another official (incidentally one of a lower grade, as shown by Annex 4) does not appear conducive to good personal relationships in the service.
            
         
               5.
            
            
               It does not seem possible to blame the applicant for the unsatisfactory manner in which this series of events shows the service to have been conducted; on several occasions he offered to help in any possible way to remove any source of friction or of misunderstanding which might exist between him and his immediate superior. In this connexion I especially deplore tha lack of response to the repeated requests for an interview so that there could be a frank discussion of the problems which undoubtedly had arisen. Such an attitude accords neither with the requirements of efficiency nor with that regard for the self-respect of individuals which is essential in a modern administration.
               As the defendant has stated, the cause of all the difficulties was the applicant's negative reaction (which was, however, only expressed by word of mouth) in face of all the direct interference in the work of his division which, even at the purely executive level, his superiors tolerated on the part of one of his colleagues.
               I am not questioning the expediency of entrusting Division E/l with the task of coordinating the work of the other divisions in order to improve methods of working view of the need to implement the Mansholt plan. But even an official of the highest grade such as the Director-General for Agriculture (on the assumption that the situation described above was created with his consent) cannot be allowed to press changes in the internal organization of the services which the Commission has decided upon to such an extent as, in fact, to relieve of his duties the member of staff whom the Commission had entrusted with the responsibility of a division in order to place it under the control of others.
               Working in this way runs the risk of confusing duties and responsibilities and of upsetting the internal re-distribution of powers which the Commission itself wanted; moreover, it infringes the right of an official whose excellence has been expressly recognized, to discharge his responsibilities in full. It impairs his dignity and lowers him in the estimation of his own subordinates.
               The decision to transfer the applicant, which was originally the main subject-matter of Application 4/74, represents the culmination of the process of his improper de facto exclusion from the performance of his duties as Head of Division E/3. In view of the events which led to it, the decision assumes the character of a coup de grâce.
               
               It is conceivable that the applicant had a concept of his responsibilities which went beyond the powers appropriate to a Head of Division. It may be that his failure to keep this idea to himself is what underlies his difficulty in his relationships with his superiors. He may even have been unduly conscious of the prerogatives attaching to his post or of the respect due to individual aspects of his authority but, although all this might have justified his being specifically called to order or being given a precise definition of the limits of his responsibilities, it could not justify his de facto exclusion, through the efforts of other officials, even those of the highest grade, from the duties and responsibilities assigned to him by decision of the Commission.
               In the light of the facts referred to above, the decision to transfer him might, on an objective view, imply approval for the actions of the applicant's superiors and a decision to disown him. It does not appear, however, that the reasons for any differences which existed between the applicant and his superiors were the subject of a specific inquiry on the part of the Commission — which, incidentally, would have required that the applicant should be heard. In view of the fact that he was not even heard, it must be assumed that those who took the decision did not have a clear picture of the circumstances which led to it and did not intend the measure to have such significance. But that would mean that they had been induced to take a decision which, in the light of the previous circumstances, even if they were not aware of them, amounts to discarding a deserving official and causing him harm as an official and as a human being.
            
         
               6.
            
            
               
                  Iudex iudicare debet secundum alligata et probata, and if there is one safeguard which must be maintained for the sake of all, whether they be officials or ordinary members of the public, it consists in the strict observance in all proceedings of this ancient principle of law. We are faced with a serious, detailed and consistent body of evidence of treatment which conflicts with the rules and rationale of the public service. As there is always a reason underlying human vicissitudes, it is also conceivable, or, to put it another way, there is perhaps ground for suspecting that this attitude of marked indifference and odd contempt for the respect due to the rights of the individual was attributable to corresponding shortcomings on the part of the official concerned. But on the basis of a general deduction of this kind, which is unsupported by the evidence and not even alleged by the defendant, it is quite impossible to reject the claim of an official whose right to his own self-respect must be upheld.
               If perhaps the administration decided that silence was the best way of covering up any shortcomings on the part of the official, the Court's decision will make it clear that this was not the course which ought to have been followed. If, for example, the heads under whom the applicant served had decided to adopt a uniform policy of magnanimity and, so as to place most of the blame upon the official at the appropriate moment, heaped tributes upon him which he did not deserve, the Court's decision will make it clear that it is not by methods of lax disingenuousness that people are handled under a system which should set an example of propriety and which, above all, must ensure that human dignity is respected.
               In voicing its disapproval, the Court will thus be condemning a method in order to ensure that no one shall imagine that the Court of Justice accepts that the governance of human beings should be left to the arbitrary decision of their superiors without the officials they employ being ever placed in a position to understand the reasons for measures which affect their very existence.
               Without doubt the appointing authority can at any moment provide for transfer of an official in the interest of the service, but when, viewed objectively against the background of the events which led to it, a decision represents the culmination of general behaviour which conflicts with the fundamental principles of sound administration, it can in turn be vitiated, even without taking into account the unusual procedure which appears to have been followed and which could perhaps be explained by the special requirements of the period in which it was adopted. Moreover, the defendant has itself admitted that the difficulties which marked the applicant's relations with other officials in Directorate E for Agriculture were not wholly unconnected with his transfer to another directorate: thus accepting that there was a connexion between the situation criticized above and the disputed decision, at least in the minds of those responsible officials who had promoted him.
            
         For these reasons, and without having to consider the subsidiary application for annulment of the decision, I recommend that the Commission be ordered to make good the wrongs suffered by the applicant in his capacity as an official, and I leave it to you in your wisdom to determine the amount deemed sufficient to meet the non-material aspect of your decision.
      I recommend that, whatever the outcome, the defendant be ordered to pay the costs in Case 4/74.
      (
            1
         )	Translated from the Italian.