C-35/72

JUDGMENT OF THE COURT (SECOND CHAMBER) OF 27 JUNE 1973 1

Walter Kley v Commission of the European Communities

Case 35/72

1. Officials — Recruitment — Transfer within the Institution — Act adversely Affecting official — Criteria — Statement of reasons (Staff Regulations, Art. 25, Art. 91)

2. Officials — Ability — Assessment — Competence of administration (Staff Regulations, Art. 43)

1. Even if a decision on transfer within wishes of the person concerned is an the institution does not affect the act adversely affecting him within the material interests or rank of an meaning of Article 25 of the official it may, having regard to the Regulations and the reasons on which nature of the duties in question and it is based must therefore be stated. to the circumstances, adversely affect the morale and future prospects of 2. Assessment of the ability of an official the employee concerned. is a matter within the competence of A transfer decision taken against the the administration.

Application for annulment of the decision of 11 January 1972 relieving the applicant of his office as Head of Division of the 'Physics Division' and appointing him adviser to the 'Scientific Directorate' of the Joint Research Centre, Ispra,

THE COURT (Second Chamber)

composed of: P. Pescatore, President, M. Sørensen and Lord Mackenzie Stuart (Rapporteur), Judges,

Advocate-General: A. Trabucchi

Registrar: A. Van Houtte

gives the following

KLEY v COMMISSION

6. On 29 November 1971, Mr Kley rules. went on a mission to Bonn and Brussels in connexion with the Sora programme. (b) In answer to a memorandum from the Scientific Director of the Ispra 7. On 2 December 1971 Mr Kley sent establishment, Mr Kley felt justified in to Mr Spinelli, member of the Commission responsible for Euratom divulging to numerous officials a copy of a letter which had been sent to him by questions, a memorandum, a copy of which was sent to Mr Caprioglio, and in the Scientific Director, as well as a copy which in particular it was stated: of a controversial reply accusing the latter of creating numerous scientific and 'I was given yesterday responsibility for human problems. The disclosure was of the Ispra-I reactor. Unfortunately, I must a nature calculated to weaken the inform you that my scientific work and authority of the Directorate in the eyes my interests concern above all the of staff. subjects of condensed matter, neutron physics and the evolution of pulsed (c) Moreover, for the same reasons, Mr neutron sources, and that my university Kley, ignoring the normal official obligations at the Munich Technical channels, wrote directly to Mr College do not permit me to accept an Commissioner Spinelli. I had recently

9. On 14 December 1971, Mr Kley received the transfer documents for the to examine the possibility of starting officials affected by the reorganization, disciplinary proceedings against Mr but he did not pass them on. Next day, Kley. The letter requesting disciplinary in a note addressed to Mr Commissioner measures was worded as follows: Spinelli, he wrote: 'The complaints which I make against Mr Kley are as follows: As I am of the opinion that this decision is extremely prejudicial to the Joint (a) Although, by note No 0.01/729/71, Research Centre, both in the human and of 26 November 1971, I pointed out the the scientific spheres, it is impossible for necessity for complying with the me in good conscience to pass on the requirements of the Regulations transfer documents.

JUDGMENT OF 27. 6. 1973 — CASE 35/72

10. On 20 December 1971, Mr Kley which required you to carry out transmitted, through his immediate administrative duties in which, as you superior, his observations regarding the have informed me on several occasions, complaints set out in the note from the you have not much interest, and which I Director-General of 13 December 1971. was recently compelled to increase to the detriment of your scientific activity.' 11. On 7 January 1972, Mr Commissioner Spinelli replied to the 15. The description of the basic posts note from Mr Kley of 15 December 1971 mentioned in Annex I to the Staff suggesting an interview. Regulations was brought to the notice of staff by Circular 9/63 of 13 March 1963

13. In the note accompaying the responsible for research or supervision observations of the applicant of 20 under the authority of a Director- December 1971, the Director-General on General or a Director. 11 January 1972 requested the Director- General of Administration to consider 16. On 28 January 1972 Mr Kley the request for an examination of the received from Mr Finzi a departmental possibility of initiating disciplinary order in manuscript, neither dated nor proceedings as being withdrawn.

him: abilities and interests, rather than to a deliberate intention to ignore the normal 'I regret that you have not accepted the channels.' responsibility which was offered to you regarding the experimental Sora 14. On the same day, that is 11 programme. I can only tell you once January 1972, the Director-General more that this opportunity still remains relieved the applicant of his post and open if you so desire. appointed him adviser to the Ispra Scientific Directorate, charged in I should like to express to you my particular with the coordination of work satisfaction at seeing you propose

18. Following an exchange of notes The applicant submits that the Court with the Director-General, Mr Kley should: became responsible for an experimental programme with an allocation of 10 000 — annul the decision taken and refer UA, but, as the spectrometer which was the case back to the Commission; entrusted to him was out of action and as no permanent technician had been — order the defendant to pay the costs recruited, he carried out no experiments of the action; between the date of the transfer in alternatively, dispute and the present action. — state that the defendant is required to 19. On 10 February 1972, Mr Kley put produce at the hearing the forward a complaint, in accordance with establishment plan of the Ispra Joint Article 90 of the Regulations, to the Research Centre, as at 11 January President of the Commission, requesting 1972; the cancellation of the decision taken on 11 January 1972. His complaint, which — permit the applicant to prove by was registered on 18 February 1972, witnesses that, at the time of the remained without reply at the expiry of interview on 26 January 1972, the the period of two months. Director-General of the Joint Research Committee, Mr Caprioglio, gave as the reason for his transfer decision of 11 January 1972 the II — Procedure flouting by the applicant on two occasions of his authority in the On 16 June 1972, Mr Kley started the chain of command. present action. The written procedure followed the normal course. The defendant submits that the Court should: After hearing the report of the Judge-Rapporteur and the opinion of the — declare the present action inadmissi­ Advocate-General, the Court (Second ble or unfounded; Chamber ) decided to open the oral — order the applicant to pay the costs. procedure without any preparatory inquiry. The parties were invited to concentrate, in their oral explanations, on describing the duties of the applicant. IV — Pleas and arguments The Court (Second Chamber) invited the of the parties applicant and the Director-General, Mr Caprioglio, to be present personally at The pleas and arguments of the parties the oral procedure. At the hearing of 21 may be summarized as follows: March 1973, after hearing the oral observations of the representatives of the parties, the Court put certain questions A — Admissibility to the applicant and to Mr Caprioglio with a view in particular to defining the The defendant pleads that the action is duties assigned to the applicant after 11 inadmissible on the ground that it is January 1972 and the duties in fact directed against an act which does not carried out by him. adversely affect the applicant. It submits The Advocate-General presented his that the decision of 11 January 1972 opinion at the hearing on 5 April 1973. may be analysed as a transfer within the

— (Joined Cases 18 and 35/65) (Rec. 1966, p. 149) Max Gutmann v In support of his proposition with regard Commission of the EAEC. to the illegality of the contested decision, the applicant puts forward the following — (Case 21/68) (Rec. 1969, p. 85) pleas: Andre Huybrechts v Commission; 1. Infringement of Article 25 inasmuch — (Case 55/70) (Rec. 1971, p. 379) as: Andreas Reinarz v Commission. (a) no reasons for the decision were The defendant also takes its stand on the stated or decisions of French administrative courts in stating that cases of transfer within (b) no sufficient reasons were stated the same department, when they do not within the meaning of the said Article or involve either change of residence or any derogation from the status of the party (c) the reason stated is inaccurate; concerned under the Regulations, remain always subject to the discretionary 2. Infringement of Articles 5 and 7 and power of the administration, which is of Annex I to the Staff Regulations the master of the organization of its own inasmuch as the post of adviser with departments. the Scientific Directorate does not correspond to the Grade of the The applicant replies that the concept of applicant, Grade A 3; an act adversely affecting an official, such as is set out in Articles 25 and 91 of 3. Misuse of powers inasmuch as the the Staff Regulations, cannot be decision constitutes a disguised interpreted in a restrictive manner. He disciplinary measure owing to the ill maintains that an action is open to will of the Director-General. officials, in particular if departmental orders have the character of a First plea disciplinary measure. He takes his stand in this respect on French administrative The applicant claims that, in accordance law and on the case law of the Court: with Article 25, first paragraph, of the Regulations, reasons on which the — Gutmann case (cited above); decision was based ought to have been — (Case 16/67) (Rec. 1968, p. 431) stated in view of the fact that it was a Henri Labeyrie v Commission; decision adversely affecting him.

applicant were terminated. the rule of equivalence between grade and post, and that the differences It is true that reasons were not stated in between the past and present duties of the departmental note of the same day the applicant cannot be quoted as but these were not required, as the note adversely affecting the applicant. It was intended for all departments and claims that this follows from the not for the applicant alone. Judgment in Case 46/69 Moreover, the applicant points out that, — Reinarz v Commission cited above in his letter of 11 January 1972 to the Director-General of Personnel and and from the opinion of the Administration, the Director General Advocate-General in that Case. refers to an alleged lack of ability; and It claims that the present post of the the reasons thus stated are materially applicant is of a high scientific level, inaccurate. The obligation to state the involving genuine scientific tasks, and is reasons, as prescribed by Article 25, first of great importance, inasmuch as it deals paragraph, of the Regulations, was with the preparation of the Sora therefore not satisfied: the reasons on programme, with the co-ordination of which the act adversely affecting the the work of a large number of physicists, official was based did not appear, as and with the comprehensive presentation required by the Judgment of the Court of a Sora scientific programme, all of in Case 27/68 Reinoldus Renckens v which must give rise to a very important Commission (Rec. 1969, p. 255), in a report. 'clear and unequivocal manner'. According to the defendant, the new The defendant points out that an issue duties of adviser devolving upon the based on the material inaccuracy of applicant correspond to his grade, are reasons stated is a fresh issue which prescribed in the description of the concerns supervision of internal legality duties and by no means derogate from and not a defect of form. By application the rights derived from Articles 5 and 7 of Article 42 of the Rules of Procedure, of the Regulations for the official the Court ought to reject as inadmissible concerned. In this respect, the defendant the fresh issue, based on internal legality, takes its stand on the opinion of the as being based on legal grounds distinct Advocate-General in Cases: from those on which the issue set out in — Huybrechts v Commission (21/68), the application was based. already cited, — Reinarz v Commission (46/69), Second plea already cited. The applicant claims that the new duties The defendant points out that a which were entrusted to him do not distinction ought to be drawn between, correspond to Grade A 3 which is his on the one hand, the budgetary grade. He states that they were not document mentioned in Article 6 of the prescribed in the description of the Regulations, which gives aggregate duties or even in the establishment plan, quantitative indications regarding the are void of all content and would entail allocation of credits intended for on the part of the applicant a diminution expenditure on staff, and, on the other and a loss of technical and financial hand, the differentiated description of

modifications of the establishment plan, of ability' alleged are controverted. since indeed they are silent with regard The defendant states that the decision of to the concept of establishment plan and 11 January 1972 was taken in the sole recognize only that of the list of posts. interests of the department, within the The applicant replies that if the post had framework of the discretionary power indeed been provided for, it was attaching to the competent authorities of astonishing that a vacancy in a post of the institution and concerning the such 'high scientific importance' was not arrangement of the departments and the brought to the notice of staff so that this best distribution of posts. On these post might be entrusted to the best grounds, it claims to benefit from the qualified and most competent official. presumption according to which transfers are decided in the interests of In fact the post of adviser to the Scientific Directorate had, he claimed, the department. been created to serve as a 'siding' for The defendant further states that the him. applicant by no means claims that the The defendant retorts that in the event interests of the department did not of the applicant's intending to introduce require the adoption of the decision an issue based upon an infringement of taken. Even if the point of view of the Article 6 of the Regulations, this issue, as applicant, who claims to be the victim of it constitutes a fresh issue, must a disguised disciplinary measure, were to necessarily be rejected as inadmissible. be adopted in its totality, it would The defendant continues that the follow at the most that the act

The Staff Regulations do not include The applicant further states that in his transfer in the scale of disciplinary new post he is condemned to idleness; measures; a transfer decision could only he has never been consulted by the be annulled as being a measure adversely Director in his capacity as scientific affecting an official, as may be the case adviser. The duties which the Director- in connexion with a transfer entailing a General wished to assign to the change of residence, and after it has been applicant were those which he had shown, on the basis of objective, relevant already exercised formerly in his and concordant signs that the decision capacity as Head of Division, with the was taken to attain objects other than essential difference that now he is no those put forward. longer to possess the attributes of The letter requesting that a disciplinary authority and decision inherent in his measure be initiated is not in keeping grade under the Regulations. with the other facts advanced by the The defendant retorts that the delegation applicant to establish a misuse of of research workers came above all to powers. make enquiries of the Director-General Finally, the Commission refers to the with a view to ascertaining whether the case law of the Court, according to departure of Mr Kley from the Physics which the latter is not competent to Division was to be interpreted as a substitute its own value judgment for the repudiation of the lines of scientific estimates by the administration of the investigation followed until then by that professional ability of an official Division.

3 The transfer decision, it is contended, did not involve for the applicant any modification of his material interests or any reduction in his rank in the hierarchy, and consequently it did not adversely affect his legal position.

4 Even though a transfer decision may not affect the material interests or the rank of an official it may, having regard to the nature of the duty in question, and to the circumstances, adversely affect the morale and the future prospects of the employee concerned.

5 In these circumstances, it cannot be considered a priori that such a decision is not capable of adversely affecting the person concerned.

6 The objection must therefore be rejected.

Merits

As to the statement of reasons in the decision

12 that on 10 January 1972 the Director-General justified his decision by referring to the attitude taken by the applicant with regard to the reorganization of the Centre; and

13 that on the occasion of an interview with research workers from the Centre

on 26 January 1972, the Director-General gave as the reason for his decision the flouting of his authority on two occasions.

14 These allegations, which were not explicitly denied by the defendant, were substantially confirmed in the course of the oral procedure before the Court.

15 It is moreover reasonable to suppose that the attitude of the applicant constituted a determinative factor in the decision.

16 To decide whether the requirements of Article 25 were complied with, it is appropriate to consider the circumstances in which the contested decision was taken.

As to the contravention of Articles 5 and 7 and Annex I to the Regulations

22 The applicant quotes Article 7 of the Regulations, according to which an official must be assigned to a post in his category or service which corresponds to his grade, and states that the duties entrusted to him did not correspond to his grade.

23 In this respect the applicant, whilst admitting that the post of adivser to the Scientific Directorate corresponds technically to his grade, maintains that his new post is without genuine content; and

24 that it had not been provided for in the establishment plan, but had been created to serve as a 'siding' for him in contravention of Article 5.

25 It appears that the principal duty which the Director-General intended to assign to the applicant in his new post consisted in proceeding with the coordination of the operations of the working groups within the framework of the experimental programme bound up with the use of the Sora reactor and with the the presentation of a comprehensive report regarding these operations.

26 The applicant refused to undertake this work on the ground that, from the point of view of organization, as the method consisted in working out a comprehensive report without having any authority over the research workers involved or any direct responsibility for them, the said method would be defective.

31 This plea must be rejected.

As to misuse of powers

32 According to the applicant, a transfer decision may be tainted with misuse of powers if it appears, on the basis of objective, relevant and concordant evidence, to have been taken for purposes other than those indicated.

33 The applicant sees such evidence in the request of the Director-General to the effect that disciplinary measures be taken with regard to him and in the fact that this request was withdrawn on the very day on which the Director- General took the decision complained of.

34 He maintains that this fact demonstrates that the transfer was in reality a disguised disciplinary measure; and

35 that the Director-General had adopted such disciplinary measure by reason of the fact that the applicant had opposed his plans for the reorganization of the Centre.

40 This plea must therefore be rejected.

Costs

41 The applicant has failed in his action.

42 Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

43 However, under the terms of Article 70 of the said Rules, the costs incurred by institutions in actions brought by employees of the Community are to be borne by such institutions.

On those grounds,

Delivered in open court in Luxembourg on 27 June 1973.

A. Van Houtte P. Pescatore

Registrar President of the Second Chamber