C-61/70
ECLI:EU:C:1971:66
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JUDGMENT OF THE COURT (FIRST CHAMBER) 16 JUNE 19711
Gianfranco Vistosi
v Commission of the European Communities
Case 61/70
Summary
1. Community institutions — Administrative departments — Post — Transfer — Discretionary power of the administration — No creation of new post — Transfer of the official together with his post — No vacancy
2. Community institutions — Administrative departments — Organizational power of the higher authorities — Obligation to respect the rights of officials
3. Officials — Duties performed, grade and post — Correspondence — Possibility of this principle being infringed by the withdrawal of part of the services which are subject to an official's authority (Staff Regulations of the European Communities, Articles 5 and 7)
1. The appointing authority may in the the exigencies of the service, without interest of the service transfer a post prejudice to the rights which ser from one Directorate-General to vants enjoy under their Staff Regu another where it considers that such lations and which they can ask the a post is more useful in the depart Court to enforce. ment to which it is allocated than in 3. In particular it is clear from Articles that from which it is removed. There 5 and 7 of the Staff Regulations, is no creation of a new post where the that an official has the right to ex post is transferred without any sub pect that the duties which are as stantial change in the duties attach signed to him should as a whole be ing to it, nor is there a vacancy where in keeping with the post which cor the transfer of the post coincides with responds to the grade which he oc the transfer of the official who oc cupies in the scale of posts. With cupies it. drawing from an official one or more 2. The higher authority is alone re of the departments for which he was sponsible for the organization of the previously responsible may in cer departments which it must be able tain circumstances amount to an in to determine and modify according to fringement of this right.
In Case 61/70
Gianfranco Vistosi, an official of the Commission of the European Com munities, residing at 9 avenue des Hêtres-Rouges, Wezembeek-Oppem (Belgium), represented and assisted by Marcel Slusny, Advocate of the Cour
1 — Language of the Case: French.
JUDGMENT OF 16. 6. 1971 — CASE 61/70
d'appel, Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Advocate, Centre Louvigny, 34 B/IV rue Philippe-II, applicant,
v
Commission of the European Communities, represented by its Legal Adviser, Louis de la Fontaine, with an address for service in Luxembourg at the Chambers of Émile Reuter, 4 boulevard Royal, defendant,
Application for the annulment of the decision of the Commission appointing Mr Luciano Angelino as Italian language editor of the Publications Division in the Directorate for Information and Media of the Directorate-General for Press and Information and the annulment of the decision by which the applicant was relieved of his duties.
THE COURT (First Chamber)
composed of: A. M. Donner, President of Chamber, R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure This posting was not preceded by a vacancy notice containing a description The facts and the procedure may be of the post involved. From what appears summarized as follows: in the periodical report on the appli The applicant, an official in Grade A 6, cant, this employment consists of the was on 25 October 1966 appointed editing in Italian of periodic and non- Italian language editor in the Publications periodic-publications. In this field the Division of the Joint Press and Infor applicant devoted himself in the main mation Department which subsequendy to the editing of the monthly magazine became the Directorate for Information 'Comunità Europee' in which for a and Media of the Directorate-General time he held the position of chief for Press and Information. editor.
VISTOSI v COMMISSION
According to the applicant he was re The parties presented oral argument at lieved of these duties consequent upon the hearing on 12 May 1971. the appointment in May 1970 to the The Advocate-General delivered his division to which he belongs of another opinion on 26 May 1971. employee, Mr Angelino, an official in Grade A 4, who previously worked in the Spokesman's Group. II — Conclusions of the After he had in July 1969 been seconded parties to the office of Commissioner Colonna di Paliano, Mr Angelino was at the ex The applicant claims that the Court piration of Mr Colonna's term of office should: by decision of 6 May 1970 which came '(1) Declare null and void the Com into effect on 1 July 1970 not restored mission's implied refusal of his to the Publications Division of his for administrative complaint of 13 July mer post but was assigned to the Direc 1970; torate-General for Press and Information, (2) Declare null and void the decision with posting to Rome, and in Grade A by which the Commission appoin 4. The temporary servant who replaced ted Mr Luciano Angelino Italian him at the Spokesman's Group was at language editor of the Publication the same time established in his post. Division of the Directorate for In In order to bring about these two post formation and Media of the Direc ings, the Commission in the course of torate-General for Press and In its meeting on 6 May 1970 transferred formation; Mr Angelino's post from the Spokes (3) Declare null and void the decision man's Group to the Directorate-General for Press and Information, and trans by which the applicant was re lieved of his duties; ferred a vacant post from another Direc torate-General to the Spokesman's (4) Order the opposite party to bear the costs. Group. (Schedule III to the statement of defence). The defendant contends that the Court According to tne applicant these opera should: tions had the effect of relieving him of — declare the request for annulment of his duties, since the tasks carried out the contested decisions inadmissible by him were entrusted to Mr Angelino or, alternatively, unfounded; and since he himself had not received — accordingly find the action inadmis any new posting. In these circumstances sible and unfounded in its entirety; on 13 July 1970 he made a complaint — order the applicant to pay the costs.' through official channels against the ad The applicant claims in addition in his ministrative situation in which since 1 reply that the Court should: July 1970 he had found himself, asking 'In the alternative, for 'the annulment of the illegal pro declare that Mr Jules Gerard Libois, cedures' of which he complained. Head of the Publications Division, ought After this complaint had remained un to be heard as a witness on the follow answered for more than two months, the applicant brought an action before ing points: the Court of Justice on 4 November (l)What since 1 July 1970 have been 1970. the applicant's conditions of work and what are the tasks entrusted to Upon hearing the report of the Judge- him? Rapporteur and the views of the Ad vocate-General, the Court decided to (2) Is it not a fact that to the extent open the oral procedure without any of 95% the applicant's tasks in his preparatory inquiry. capacity as Italian language editor as
JUDGMENT OF 16. 6. 1971 — CASE 61/70
indeed those of the other editors 1. As regards the first head of claim in consists of editing the Commission's the application, it argues in the first monthly publication (in the present place that it is pointless since the ap case Comunita Europee)? plicant had in no way been relieved of his duties. If consequent upon the strengthening of the editorial team to III — Submissions and argu which he belongs, the editing of the ments of the parties magazine 'Comunità Europee' was en trusted to Mr Angelino, this fact never The submissions and arguments of the theless did not have the effect of reliev parties may be summarized as follows: ing him of his duties. He still remains an administrator in Grade A 6 in the A — In the application the applicant Publications Division and edits the argues that the decision transferring Mr Angelino to the Publications Division Italian language publications published of the Directorate-General for Press and by that department.
Information with posting to Rome ad If only for that reason the application ought to be dismissed as inadmissible or versely affects him in that it deprives him of the opportunity of performing at any rate unfounded. tasks which he had until then performed Secondly, the defendant alleges that even without other duties being allocated to if the applicant could prove that there him and that it must be annulled for had been an important change, both from the following reasons: the point of view of quantity and quality, in the tasks which he had previously (1) No vacancy of employment had been performed, this change did not for that advertised; reason involve the illegality of the con (2) Since the contested decision adver tested decision. Besides, the applicant sely affects the applicant it ought to must prove—something which he has have been notified to him; this had not done—that this measure adversely not been done; affects him and that it cannot be justi (3) This decision is defective by reason fied for considerations based on the in of a misuse of powers. It is not justi terest of the service. fied by any interest of the service 2. As regards the decision relating to since there has been no enlargement the transfer of Mr Angelino—with which of the sphere of activity of the pub the application is secondly concerned— lications division or of the Rome the defendant alleges in the first place office whilst on the other hand no that since the applicant was not re decision has been taken to assign lieved of his duties the decision is not other duties to the applicant. The capable of adversely affecting him and real purpose of the contested decis that under this head too the application ion was to reward Mr Angelino when is inadmissible. his duties as Deputy Chief Executive The application ought moreover to be Officer of a Member of the Com dismissed as unfounded for the follow mission had come to an end. ing reasons: (4) Finally the contested decision (a) The criticized decision stemmed from amounts in the case of the applicant the obligation upon the Commission to a disciplinary action in disguise. to reassign Mr Angelino to a post B — In the statement of defence the in his grade after the termination of Commission replies in the first place to his duties as Deputy Chief Execu the submissions relating to the alleged tive Officer. To carry out this obliga deprivation of employment and subse tion can in no way be interpreted quently to those dealing with Mr as a reward; this is moreover con Angehno's transfer. firmed by the fact that the decision vistosi v commission
in dispute had the effect of depriving Europee' whereas since July 1970 he the person concerned of his A 3 was in respect of these activities re Grade in which he had been tem placed by Mr Angelino; porarily classified whilst performing — on 26 July 1970 he was entrusted his duties with the Office. with a single mission to Italy whereas (b) The disputed decision, moreover, naa the Italian language editor of the the purpose of strengthening the Publications Division might con Publications Division, which became stantly be in Rome (the reason why necessary by the multiplication of Mr Angelino in fact received this tasks concerned with information posting); owing to the development of the — at present he carries out what for him Community's activities. are unusual tasks, such as giving talks (c) The contested decision was in no and editing brochures, work which way intended to fill a vacant post does not correspond to his duties as within the meaning of Article 4 of Italian language editor. the Staff Regulations but constituted Moreover he offers to prove these facts a measure under Article 7 of the by witnesses. Staff Regulations which did not have to be preceded by a vacancy notice. 3. As regards the reasons which in the The fact that the appointment in defendant's view led to Mr Angelino's question was not preceded by such appointment, the applicant by way of a notice does not therefore render reply states that this appointment was it null and void. not intended to strengthen, and in any event did not have the effect of strength C — In his reply the applicant points ening, the Publications Division. In fact out that one cannot—as was done by all Mr Angelino had done was to replace the defendant—divorce the two con the applicant and in addition to obtain tested decisions. For the purpose of as the posting of Rome. Besides, another sessing their legality they form one official, Mr Speranza, was subsequently entity for it is the decisions relating to withdrawn from the Rome office which Mr Angelino which relieved the appli reduced the number of officials in Rome cant of his duties. to its previous level. 1. It follows that this decision ought to According to tne applicant tne act by have been put in writing and that the which an institution accords an advan reasons for it should have been given tage to a servant by placing another ser and that it should, independently of any vant in a lesser position when no inter other consideration, be annulled for that est of the service justifies such conduct, reason alone. amounts without a doubt to a misuse of
2. The disputed decision had resulted in powers.
a capitis diminutio of the applicant, since 4. Finally, in reply to the defendant 's it relieved him of the performance of argument that Mr Angelino's transfer his duties, thus compromising his per amounts to a measure under Article 7 sonal prospects for the future. rather than under Article 4 of the Staff That this is so can be shown by the Regulations, the applicant argues that the following facts: application of this first provision in no — in July 1970 consideration was given way excludes the second. Quite to the to posting the applicant to the Com contrary, it follows from Articles 7 and mission's Scientific and Technological 29 of the Staff Regulations that if the Information Department; appointing authority may effect transfers, — the applicant had in fact before July it can only do so after publishing a 1970 performed the duties of chief vacancy notice in accordance with Article editor of the magazine 'Communita 4 of the Staff Regulations.
JUDGMENT OF 16. 6. 1971 — CASE 61/70
D — In its rejoinder, the defendant E — In the course of his oral argument quotes different facts from which it can the applicant pointed out that in the be seen that the applicant, whilst no present case Mr Angelino was not trans longer as in the past called upon to col ferred together with his post. After com laborate in editing 'Comunità Europee', ing from the Spokesman's Group, Mr has nevertheless been entrusted with Angelino was assigned to a cabinet. other editorial tasks the accomplishment When he had to be restored to his for of which constitutes no handicap for his mer post with the Spokesman's Group, professional future. once his secondment had terminated, the As regards the interpretation of Articles defendant transferred the post from the 4 and 7 of the Staff Regulations, the Spokesman's Group to the Directorate- defendant further adds that the real General for Press and Information and problem is in fact whether a change of thus assigned Mr Angelino to an alto posting necessarily amounts to a means gether different post. A transfer of this of filling a vacant post within the mean kind, without a prior vacancy notice is ing of Article 4 of the Staff Regulations. not permissible. Where the appointing authority moves In its oral argument the defendant an official together with his post from stated that to require that there be a one administrative unit to another in vacancy notice of an official in relation order that that official may perform to each change of post would not be in duties corresponding to his grade, even accordance with the Staff Regulations; if those duties are not identical with where an official is transferred from one those previously performed it does not fill department to another in order to carry a vacant post within the meaning of Article out there tasks corresponding to his 4 since the official, as is the case here, is grade, tasks which, moreover, are similar transferred together with his post. to or identical with those which he had Besides, , the requirement of publication previously performed, then such action can only be insisted upon where it is cannot be construed as the abolition of capable of achieving the purpose in a post and the creation of a new post tended by the Staff Regulations, that is, so as to require the publication of a to bring forth applications. Where the vacancy notice. appointing authority has no choice as This is in accordance both with the
regards the candidate to be appointed— case-law of the Court of Justice (Judg which is the case here since it was ob ment of 9 July 1970, in Case 35/69, liged to give Mr Angelino priority when Lampe-Grosz [1970] ECR) and with it posted him—publication is not re that of the French Conseil d'État (CE quired. 21 June 1968).
Grounds of judgment
1 By application lodged on 4 November 1970 the applicant brought before the Court an application for the annulment of the defendant's decision of 6 May 1970 transferring Mr Angelino, an official in Grade A 4 with the Spokes man's Group, to the Directorate-General for Press and Information, Publica tions Division, and posting him to Rome.
2 This decision is said to have had the effect of relieving the applicant, who was an administrator in Grade A 6 in that division, of his duties as Italian language editor of periodic and non-periodic publications of that division or
VISTOSI v COMMISSION
of the press office in Rome, in particular in so far as the editing of the review 'Comunità Europee' is concerned.
3 The applicant alleges in the first place that the contested decision must be annulled because no vacancy notice had been published, whereas under Article 4 of the Staff Regulations any vacancy in an institution shall be notified to the staff once the appointing authority decides that a post is to be filled.
4 The defendant replies that it did not fill a vacancy but only transferred a post because it was necessary to strengthen the Publications Division by reason of the increase in relating to information consequent upon the development of the Community's activities.
5 The appointing authority may in the interest of the service transfer a post from one Directorate-General to another where it considers that such a post is more useful in the department to which it is allocated than in that from which it is removed.
6 Where the post is transferred without any substantial change in the duties attaching to it, it does not amount to the creation of a new post.
7 Besides, where the official who occupied the transferred post is transferred together with it there is no vacancy, nor consequently is there an obligation to implement the procedure provided for such a case.
8 In the present case the defendant states that the post held by Mr Angelino with the Spokesman's Group and the post which he holds in the Publications Division were similar.
9 The applicant has submitted nothing capable of invalidating this statement.
10 Besides, contrary to the applicant's allegations, it appears from the Court file that the post transferred really went to strengthen the staff of the Publications Division.
11 Accordingly there was no need for a vacancy notice to be published.
12 The submission must therefore be rejected.
13 The applicant further alleges that consequent upon the transfer in question he was discharged from his job as editor of the review 'Comunità Europee', thus in fact relieving him of his duties without new tasks being entrusted to him.
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14 The higher authority alone is responsible for the organization of the depart ments which it must be able to determine and modify according to the exigences, of the service, without prejudice to the rights which servants enjoy under their Staff Regulations and which they can ask the Court to enforce.
15 In particular it is clear from Articles 5 and 7 of the Staff Regulations, that an official has the right to expect that the duties which are assigned to him should as a whole be in keeping with the post which corresponds to the grade which he occupies in the scale of posts.
16 Withdrawing from an official one or more of the departments for which he was previously responsible may in certain circumstances amount to an in fringement of this right.
17 Whilst it is correct that the applicant is no longer entrusted with the editing of the review 'Comunita Europee' it is no less clear that since this task came to an end he has carried out other editorial activities in the Italian language.
18 Whilst this work differs from that previously done, there is nevertheless nothing to show that it is not in conformity with his grade.
19 The submission must accordingly be rejected.»
20 The applicant goes on to allege that the contested measure ought to be annulled because it was not notified to him and because no reasons for it were given.
21 Under Article 25 of the Staff Regulations any decision relating to a specific individual must be communicated in writing to the official concerned.
22 In the present case the contested decision in question only had to be notified to the official to whom it related.
23 Under the said Article 25 it only had to state the reasons on which it was based as regards the addressee thereof if it adversely affected him.
24 The submission is therefore unfounded.
25 Finally, the applicant does not establish in what manner the act of posting Mr Angelino to a post in the Publications Division which corresponded to his grade constituted a misuse of powers.
VISTOSI v COMMISSION
26 In the absence of precise allegations on this point this submission must like wise be rejected.
27 The application must therefore be dismissed.
Costs
28 Under the provisions of Articles 69 (2) of the Rules of Procedure the un successful party shall be ordered to pay the costs. However, under the terms of Article 70 of the said Rules, the costs incurred by the institutions in actions brought by employees of the Community are to be borne by such institutions.
29 The applicant has failed in his action.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community; Having regard to the Staff Regulations of Officials, especially Articles 4, 5, 7, 90 and 91; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,
THE COURT (First Chamber)
hereby:
I. Dismisses the application;
2. Orders the parties to bear their own costs.
Dormer Monaco Mertens de Wilmars
Delivered in open court in Luxembourg on 16 June 1971.
A. Van Houtte A. M. Donner Registrar President of the First Chamber