C-4/74

In Joined Cases 4/74 and 30/74

GIUSEPPE SCUPPA, a former official of the Commission of the European Communities, living at Tervueren (Belgium), represented by Arnaud Lyon-Gaen, Advocate before the Conseil d'Etat and the Cour de Cassation of France, with an address for service in Luxembourg at the chambers of Tony Biever, 83 boulevard Grande-Duchesse Charlotte,

applicant,

v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Marc Sohier, its Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Pierre Lamoureux, 4 boulevard Royal,

defendant,

Advocate-General: A. Trabucchi

Registrar: A. Van Houtte,

gives the following

JUDGMENT

Facts

The facts and the arguments put forward this, on 10 February 1969, the by the parties in the course of the written Commission had, at Directorate (VI/E) procedure may be summarized as level drawn up a 'programme of work' in follows: connexion with the social and cultural memorandum called the 'Mansholt Plan'; in this 'programme of work' the Head of I — Facts Division VI/E/3 was placed under the Head of Division VI/E/1. Mr Giuseppe Scuppa, of Italian nationality, entered the service of the During the following months, Mr Scuppa Commission of the EEC (secretariat felt on numerous occasions that he had executif) on 21 May 1959. cause for complaint regarding his subordination to a colleague classified in By decision of 18 December 1968, he the same grade and occupying the same was transferred within the Institution and post as himself, and regarding attitudes promoted from a Principal Administrator and incidents which, in view of their post, with responsibility for agricultural frequency and of the general situation, he matters, to the Secretariat-General of the regarded as insults, threats or Commission as Head of Division VI/E/3 harassments liable to undermine his (Social Structures and Land Tenure) in reputation in the service and his the Directorate-General for Agriculture, authority in the section of which he was Directorate for Structures and the responsible head. Environment Mr Scuppa actually started work in his On 9 March 1973, the Commission new post on 2 March 1969. Previous to informed Mr Scuppa that, as part of the

restructuring of departments as a result of request is to be regarded as having been enlargement of the Communities it withdrawn. had, at its meeting on 13 February 1973, decided to confirm him in his Similarly, if this is not the sequence of capacity as Head of Division in the events, the undersigned takes the view Directorate-General for Agriculture. that a decision of the appointing authority to terminate his service must be By decision of 16 May 1973, Mr Scuppa regarded as being no longer based on the was transferred, as Head of Division, present request and, accordingly, must be from Division VI/E/3 to Division VI/D/4 declared null and void or revoked, on (tobacco, hops, potatoes and other application submitted by him when the specialized crops). He was not given outcome of the complaint is known.' formal notice of this decision but it was brought to his knowledge by word of At its meeting on 27 June 1973, the mouth on 17 May by the Deputy Commission decided to grant Mr Director-General of Directorate-General Scuppa's request and fixed 1 July 1973 as VI. the date when the termination of his service came into effect. This decision On 15 June 1973 Mr Scuppa submitted was communicated to Mr Scuppa by through his immediate superior, pursuant letter of 9 July. to Article 90 of the Staff Regulations of Officials, a complaint against the On 19 July 1973 Mr Scuppa requested decision on 16 May to transfer him; there the Commission to inform him, in the has been no reply to the complaint, light of the decision of 27 June 1973 and which was registered at the of the connexion between his request on Secretariat-General of the Commission 20 June for termination of his service on 18 June 1973. and his complaint of 15 June, of the outcome of his complaint. On 20 June 1973 Mr Scuppa, pursuant to Article 2 (3) of Regulation No 2530/72 of On 8 October 1973 Mr Scuppa lodged a the Council of 4 December 1972, complaint with the Commission against introducing special and temporary the decision of 27 June 1973 terminating measures applicable to the recruitment of his service. The complaint has produced officials of the European Communities in no result. consequence of the accession of new Member States and for the termination of service of officials of those Communities II — Written procedure and sub­ (OJ L 272, p. 1) requested the application missions of the parties of a measure terminating his service. In his request Mr Scuppa made the On 15 January 1974 Mr Scuppa brought following statement: an action, registered under No 4/74, in which he claimed in essence that the This request is submitted for the reasons Court should:

proceedings, damages of one Belgian In a statement lodged on 24 May 1974 franc; — order the Commission to pay the the applicant submitted his observations costs. on the objection raised by the Commission as to the admissibility of the application in Case 4/74. On 19 February 1974, pursuant to Article 91 of the Rules of Procedure the In his application in Case 30/74 and his Commission asked the Court to dismiss statement of 24 May 1974, the applicant the action as inadmissible without going declared that he had changed the into the substance and to order the submission in Application 4/74 to the applicant to pay the costs. effect that his principal claim was no longer for annulment of the transfer decision of 16 May 1973 but for On 8 May 1974, Mr Scuppa brought a compensation for the consequences of its second action, registered under No 30/74, in which he claimed, in essence, illegality. that the Court should: By order of 28 May 1974 the Court — annul the implied decision of the (Second Chamber) decided to join Cases Commission rejecting his complaint 4/74 and 30/74 for the purposes of the of 8 October 1973; written and oral procedure. — find that his request for 'voluntary discharge' of 20 June 1973 was In its statement of defence in Case submitted for the reasons set out in 30/74, lodged on 10 June 1974, the his request of 20 June 1973, in his Commission contended that the Court complaint of 8 October 1973 and in should: his application of 15 January 1974; — rule that the application is in part — declare that the decision taken by the inadmissible, and in any case Commission on 27 June 1973 unfounded, and dismiss it in its terminating his service was a entirety; consequence of the illegal decision of — order the applicant to pay the costs. 16 May 1973 and of improper conduct on the part of the By order of 9 July 1974, the Court Commission; (Second Chamber) decided to reserve its — order the Commission to pay him decision on the procedural objection compensation equal to the difference raised by the Commission in Case 4/74 between the financial benefits which for the final judgment. he would have received if he had remained in the service of the In its statement of defence in Case 4/74, Commission and those which he will lodged on 30 July 1974, the Commission receive as a result of termination of contended that the Court should: service at his own request; — rule that the application is — In the alternative: inadmissible, and in any case — annul the decision of 27 June unfounded, and dismiss it in its 1973; entirety; — restore the applicant to the — order the applicant to pay the costs. position in which he was prior to the illegal decision on transfer The written procedure in both cases within the Institution of 16 May followed the normal course. 1973 by reinstating him in his post as Head of Division VI/E/3 On the report of the Judge-Rapporteur, and restoring his career prospects; after hearing the Advocate-General, the

A — Case 4/74 As for the facts adduced, the events took place before the transfer decision and, Admissibility without prejudice to the question whether they, or the interpretation The Commission considers the placed upon them by the applicant, are application to be inadmissible from two correct or not, they were never the points of view. subject of a complaint through his immediate superior prior to that of 15 1. As regards the application for June 1973. The applicant was therefore annulment there is, on the part of the time-barred at the time when he applicant, a want of that interest which is submitted the complaint, which could one of the essential conditions for the not have validly referred to any of the admissibility of an action for annulment disputed actions. The applicant has not of an executive decision. therefore fulfilled the condition laid down in Article 91 (2) of the Staff The inadmissibility of an action Regulations of Officials, namely the commenced by someone who, at the obligation to submit a complaint to the time when it is brought before the appointing authority, in the form and Community judicature, is no longer a within the period prescribed by Article servant of one of the institutions of the 90, before lodging an appeal before the Communities, arises from a combination Court; his application for damages is of two very widely accepted principles: therefore in this respect clearly that the applicant's legally recognized inadmissible. interest must be determined as at the time the action is brought, and that As regards the alleged loss suffered as a persons who are not servants of a result of the circumstances surrounding community or public body have no the transfer decision itself, it must be legally recognized interest in contesting a recognized that it produced no result, as decision concerning one of its officials. the applicant did not take up the new In order to establish that an individual duties appropriate to the post to which has an interest, a favourable decison on he had been assigned. The application his claims by the Court must mean that for damages is, moreover, inadmissible the interest is safeguarded in the short or on account of its very close connexion long term. In the present case, execution with the application for annulment. of a judgment declaring the disputed Finally, the applicant is unable to transfer decison to be null and void establish the existence of a right which cannot alter the applicant's position has been infringed by improper conduct

on the part of the Commission; the Staff the substance and not to the Regulations do not give an official the admissibility of the application. right to be heard before his assignment by means of a transfer to a post in his The complaint of 15 June 1973 expressly category and appropriate to his grade. referred to developments prior to the transfer. No account should be taken of The applicant contends that the objection raised by the Commission as to the argument that it is time-barred, if admissibility is unfounded. only because the action for damages is not subject to the time-limits under

reinstatement. Finally, inasmuch as the channels before there can be an appeal to the Court. It cannot be disputed that applicant is seeking compensation for the sole object of the complaint of 15 the harm done to him by the transfer June 1973 was to argue in support of decision, it is very important that the annulment of the transfer decision of 16 Court should first establish its May 1973. irregularity. 2. With regard to the application for Moreover, the amendment which the damages, it is important to establish, in applicant states that he has made in the respect of its close connexion with the claims in Application 4/74 results in application for annulment, that the latter making them indistinguishable from the is not inadmissible, that the action for claims in Application 30/74 and, because damage is an autonomous form of action of patent want of interest, confirms the subject to its own rules as to the inadmissibility of Application 4/74, as conditions in which it can be brought, regards both the action for annulment and that the applicant has at all times and the action for damages; this is quite clearly differentiated between his apart from the other grounds for applications for annulment and for inadmissibility of the two actions.

SCUPPA ν COMMISSION

the transfer decision, which is the subject notice boards forthwith in the institution of Application 4/74, annulled, and that buildings; moreover, no official statement application has therefore lost its point of reasons was given for it or, at least, in the absence of any written Recognition of the intrinsic defect which communication on the subject, not so far is said to have vitiated the disputed as the applicant was concerned. transfer decision is a separate question from that of whether there is any interest Regulation No 2530/72 in no way to support the action for annulment which is the subject of Application 4/74 'repealed the Staff Regulations or as such. authorized the Commission to dispense with the rules contained in the

JUDGMENT OF 10. 7. 1975 — JOINED CASES 4 AND 30/74

Moreover, was adopted as part of a series of the Commission considered and finalized exceptional measures, the statement the disputed decision in conditions of reasons for it must be judged which prevented it from having all the against the background as a whole necessary information at its disposal and bearing in mind the comprehensive statement of reasons In the Commission's view, this given for the reorganization submission rests on pure allegation based operation. on an inaccurate view of the facts and is wholly lacking in proof. The Commission took the whole of its Second submission on annulment decisions on release, transfer and recruitment, including the decision in The applicant complains that the dispute, in the light of all the disputed decision infringes Article 4 of considerations which, in its view, were the Staff Regulations and is vitiated as necessary to make a success of this being ultra vires. unusually far-reaching operation. The post of Head of Division VI(D) (4), Moreover, officials do not possess any to which the applicant was transferred by right to be consulted or heard before a the disputed decision, was contrary to decision is taken to transfer them within Article 4 of the Staff Regulations, not the the Institution to a post in their grade subject of prior publication of a vacancy and in such circumstances the absence of notice and was, in fact, never vacant. prior consultation cannot constitute a The Commission points out that, by defect vitiating the legality of the

SCUPPA ν COMMISSION

nationality. On the contrary, it is vitiated grade and responsibility, the insults and by misuse of powers; in fact, it threats he suffered, the circumstances 'in constitutes a disciplinary measure in which the disputed decision was arrived disguise. The reorganization of at and the secrecy which surrounded it, departments on which the Commission its illegality, its consequences and claims the decision to have been based is repercussions, (in particular, the quite nothing but an excuse; the applicant was, decisive effect it had on the request for personally and individually, the victim of termination of service) and the general a covert disciplinary measure after the attitude of the Commission later on. Commission realized that it could not

These occurrences did the decision was arrived at, do not in any not amount to a wrongful act or sense constitute precise or coherent omission any more than the secrecy details which might show his transfer to which is supposed to have surrounded

expressly dealt with the subject of compensation and, secondly, that in the In the Commission's view, the case of an application on which it has submissions adduced by the applicant in unlimited jurisdiction, the Court has support of his claim for damages are been given power not only to proceed to unfounded. If the decision to terminate annulment but, on its own motion, also the applicant's service is held to be valid, to order compensation to be paid, even if it cannot constitute a wrongful act or the claims are not in due form. omission or give rise to compensation. If, on the other hand, the Court declares the As Application 30/74 does not amend disputed decision to be vitiated by Application 4/74 or impinge on the illegality, this calls for annulment and claims made therein the second the claim for damages thereby falls. In objection is without foundation in fact any case, the amount of damages the and, as the Court has itself joined the two applicant is asking for is unreasonable. cases, it is also without foundation in law. As regards the application for annulment Substance the complaint that the disputed decision paid no regard to the conditional nature The applicant contends that the transfer of the applicant's request calls for the decision of 16 May 1973 was the reason following comments. Regulation No for his own request for 'voluntary 2530/72 in no way requires a 'request for discharge' and the decision of 27 June voluntary discharge' to be made and the 1973 to terminate his service. The legality of a measure terminating the relation of cause and effect between the service of officials cannot be made two decisions of the Commission is subject to the existence of such a request

or to the conditions on which it was dated 20 June 1973 and especially to the submitted. The regulation did not, in questions whether the applicant was any case, contemplate requests for entitled to attach such conditions to it termination of service having conditions and whether the Commission was attached to them, and the very nature of entitled to entertain a request couched in operations for restructuring departments such terms. does not allow of such requests being made. As regards Application 4/74 the parties confined their explanations to a There is, therefore, no objective consideration of the admissibility of the connexion between the decision to application. transfer the applicant and his request for treatment under the regulation; the latter The Advocate-General delivered his was an expression of his wishes made of opinion at the hearing on 12 March his own free will. The applicant has 1975. adduced no element of proof establishing that the disputed decision was out of By letters of 20 March 1975 the parties order. were informed that the Court (Second Chamber) had decided to go into the substance of Case 4/74 and were invited IV — Oral Procedure to state whether they wished to be heard on this point. On 6 February 1975, in accordance with The applicant informed the Court that the instructions of the Court (Second he hoped to submit oral observations on Chamber), the parties submitted their oral observations first on Case 30/74 and the substance of Application 4/74 and on afterwards on Case 4/74. certain aspects of it which had, at the request of the Court, not been raised at the previous hearing. The oral procedure With regard to Application 30/74, the on the substance of Case 4/74 was parties dealt first with the admissibility of the different heads of claim set out in the therefore arranged to take place on 15 May 1975. During the hearing the application originating the proceedings; applicant put forward his submissions with regard in particular to the subsidiary and arguments; the Commission referred head of claim, they referred first to the to its written statements. application for annulment of the decision of 27 June 1973 and secondly The Advocate-General delivered a further to the application for the applicant to be restored to the position in which he was opinion at the hearing on 26 June 1975. immediately prior to the transfer decision of 16 May 1973. With regard to V — Joinder of cases the substance of the application, they paid particular attention to the question By order of 27 June 1975 the Court of the validity and extent in law of the (Second Chamber) decided to join Cases conditions attached by the applicant to 4/74 and 30/74 for the purposes of his request for termination of service judgment.

3 On 18 December 1968 the applicant was promoted to the post of Head of Division VI/E/3 in the Directorate-General for Agriculture.

4 On 10 February 1969, the Commission drew up a 'programme of work' for implementation of the memorandum on the reorganization of agriculture in the EEC, which meant that Division VI/E/3, of which the applicant had just been put in charge, became to some extent operationally subordinate to Division VI/E/1 in the same Directorate-General.

5 The implementation of this administrative arrangement led to repeated difficulty in the relationship between the applicant and the administration of the Commission of which conflicting versions are given by the parties.

6 By decision of 16 May 1973, which is the subject of Application 4/74, the Commission finally transferred the applicant to the post of Head of Division VI/D/4 in the Directorate-General for Agriculture.

7 On 18 June 1973 the applicant lodged a complaint against this decision under Article 90 (2) of the Staff Regulations of Officials.

8 The Commission took no action on this complaint.

11 On 27 June 1973, the Commission decided to terminate the applicant's service with effect from the following 1 July.

12 This decision was communicated to the applicant by letter of 9 July 1973 in which the Commission, after acknowledging the request submitted by the applicant, informed him that it had decided to consider and accept it.

13 On 8 October 1973 the applicant lodged a complaint under Article 90 (2) of the Staff Regulations against the decision taken.

14 No reply was received to this complaint either.

15 Having received no reply to his complaint of 18 June 1973, the applicant, by application of 15 January 1974, initiated proceedings in Case 4/74.

JUDGMENT OF 10. 7. 1975 — JOINED CASES 4 AND 30/74

21 The objection as to admissibility raised by the Commission must, accordingly, be set aside and consideration given to the substance.

22 Under the 'programme of work' for implementation of the reorganization of agriculture, which made particularly heavy demands on the Community administration, the Commission had set up a specific organization and distributed among named individuals the tasks allotted to each of the departments and officials concerned in the Directorate-General for Agriculture.

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23 Within Directorate E, which was responsible for questions concerning agricultural structures and environment, the plan made the Head of Division VI/E/1 specifically responsible for laying down the general guidelines for certain parts of the work done by other divisions in the directorate.

24 When, in March 1969, the applicant actually commenced work as Head of Division VI/E/3 he refused to accept what he regarded as 'subordinate' status to the head of the first-mentioned division and he persisted in this attitude.

25 During the four years in which he was Head of Division VI/E/3, the service relationship between the applicant and the Head of Division VI/E/1 became more and more strained and was marked by protests by the applicant in increasingly vehement and personal terms.

Application 30/74 (termination of service)

31 The Commission has raised objections as to the admissibility of certain heads of claim in the application initiating proceedings in Case 30/74 on the ground that they really applied to Application 4/74.

32 These objections are valid and it is, therefore, necessary to exclude from Application 30/74 all considerations arising from the dispute concerning the decision to transfer the applicant, on which the Court has already arrived at the decision given above.

33 With the removal of those considerations, it is clear that the essential subject-matter of Application 30/74 is the objection raised as to the legality of the decision of 27 June 1973 terminating the applicant's service and a concomitant request for the award of compensation for material and non-material damage.

34 In the applicant's view, the decision to terminate his service was an improper one because the Commission paid no regard to the conditional nature of the request which he submitted.

35 He further takes the view that the decision is merely the outcome of the difficulties which he had previously experienced in his relations with the departments of the Commission and is, therefore, a 'disguised punishment' for his previous attitude.

40 It is clear from these provisions, taken as a whole, that the departmental reorganization provided for under Regulation No 2530/72 took place as a matter of course, on the initiative of the institutions concerned and on the basis of certain considerations which they had to take into account, the only effect of a request from those concerned being to ensure that they had priority subject, however, to the interests of the service.

41 As the applicant had lodged such a request the Commission was entitled to take note of his wishes without having to take into account conditions expressed in vague terms and referring to matters which in any case were irrelevant to the considerations contained in Regulation No 2530/72.

42 In fact these conditions could have had no other purpose than to induce the Commission to resolve an old dispute in favour of the applicant.

43 Far from representing a disguised punishment the decision must be taken as the Commission's expression of a desire to find an honourable way out of the situation for an official whose services and devotion to duty it repeatedly recognized, even in the letter terminating his service.

44 This assessment of the situation is, moreover, consistent with Article 2 (4) of Regulation No 2530/72, which declares that the reorganization measures provided for 'are in ho way disciplinary'.

45 The Commission cannot, therefore, be criticized if, after eliminating all irrelevant considerations and noting the wish expressed by the applicant, it took the decision to terminate his service.

49 The applicant has failed in his submissions in both actions.

so Nevertheless, under Article 70 of the Rules of Procedure, in proceedings brought by servants of the Communities, institutions shall bear their own costs.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Dismisses Applications 4/74 and 30/74;