Girish Ojha v Commission of the European Communities.
Date: 1996-11-12
35 It is settled case-law that the reasons given for a decision are sufficient if it was adopted in circumstances known to the official concerned which enable him to understand the scope of the measure concerning him (see Arning v Commission, cited above, paragraph 13, and Joined Cases C-116/88 and C-149/88 Hecq v Commission, cited above, paragraph 26).
40 It should be recalled that the Court has held that the Community institutions have a broad discretion to organize their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided such assignment conforms with the principle of assignment to an equivalent post (see Lux v Court of Auditors, cited above, paragraph 17, and Case 19/87 Hecq v Commission [1988] ECR 1681, paragraph 6).
41 The Court has repeatedly held that, where they cause tensions prejudicial to the proper functioning of the service, internal relationship difficulties may justify the transfer of an official in the interests of the service. Such a measure may even be taken irrespective of the question of responsibility for the incidents in question (see Case 124/78 List v Commission [1979] ECR 2499, paragraph 13).
42 That case-law applies a fortiori in relation to the external relations of a department, especially where it is entrusted with diplomatic tasks. The essential element of diplomatic functions is, indeed, to prevent tensions from arising and to smooth out any which do. Such functions absolutely require the confidence of those involved. Once that is shaken, for whatever reason, the official in question is no longer able to carry out the functions. So that the criticisms made against him do not extend to the whole of the department concerned, sound administration requires that the institution should distance him from the situation as soon as possible.
48 Secondly, the Court' s statement, at paragraph 85 of the contested judgment, that the disputed reassignment measure had been adopted solely in the interests of the proper functioning of the Commission delegation in Dacca, must be understood in the light of its context. Paragraphs 85 and 86 show that, with those words, the Court of First Instance merely found that the reassignment decision was genuinely adopted in the interests of the service and did not constitute a disguised disciplinary measure. Nor did it hold that the Commission had ignored Mr Ojha' s interests.
49 Resting as it does on an erroneous interpretation of the contested judgment, the first part of the third plea must therefore be dismissed.
The second part of the plea
52 The interpretation of Article 24 of the Staff Regulations adopted by the Court of First Instance must therefore be regarded as erroneous. Nevertheless, it is not capable of resulting in the contested judgment being set aside, since the operative part of the judgment appears to be well founded on other legal grounds (see Case C-30/91 P Lestelle v Commission [1992] ECR I-3755, paragraph 28).
53 Suffice it to say in that respect that the plea of infringement of Article 24 of the Staff Regulations was, in the circumstances, misplaced. Since a decision to transfer or reassign an official may be taken on the basis of the mere existence of complaints, where the interests of the service so require, the institution cannot be impugned for adopting such a measure without first opening an enquiry in order to determine whether those complaints are well founded. In such a context, any non-performance of the duty to provide assistance can only lead to the annulment of the decision refusing the assistance requested (see Guillot v Commission, cited above, paragraph 14) and, in some cases, may constitute maladministration for which the Community may be liable.
57 The purpose of Article 26 of the Staff Regulations is to ensure that decisions taken by the appointing authority concerning the administrative status and career of the official concerned are not based on matters concerning his conduct which are not included in his personal file and have not been communicated to him (see Case 88/71 Brasseur v Parliament [1972] ECR 499, paragraph 11; Case 233/85 Bonino v Commission [1987] ECR 739, paragraph 11; and Case 140/86 Strack v Commission [1987] ECR 3939, paragraph 7).
58 A decision to redeploy an official necessarily affects his administrative status, since it alters the place and the conditions for the performance of his duties and also their nature. It may also affect his career by influencing his future prospects, since some functions, whilst being equally classified with others, lead more readily to promotion by reason of the nature of the responsibilities exercised.
67 Infringement of that provision entails the annulment of a measure only if it is established that the documents in question could have had a decisive influence on the contested decision (see Case 21/70 Rittweger v Commission [1971] ECR 7, paragraph 35; Case 263/81 List v Commission [1983] ECR 103, paragraph 27, and Bonino v Commission, cited above, paragraph 13).