C-61/76

JUDGMENT OF 14. 7. 1977 — CASE 61/76

In Case 61/76

JEAN-JACQUES GEIST, an official in the scientific service of the European Atomic Energy Community, represented and assisted by Marcel Slusny, Advocate at the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Avocat-Avoué, Centre Louvigny, rue Philippe II, applicant, v

Commission of the European Communities, represented by Sergio Fabro, Member of the Legal Service, acting as Agent, with an address for service in Luxembourg at the offices of Mario Cervino, Jean Monnet Building, Kirchberg, defendant,

Application for the annulment of administrative measures concerning the applicant's position in the service and the duties entrusted to that official and for a declaration that the administration is liable to him for material and

non-material damages;

Facts and issues

The facts of the case, the arguments of his capacity as an engineer, as a Scientific the parties and the procedure may be Officer by the Commission of the summarized as follows: European Atomic Energy Community on I April 1962 and was established in Grade A 6/1 on 1 October 1962. On 1 I — Summary of the facts and January 1966 he was promoted to Grade procedure A 5 after a period of secondment to the United States. Until 24 July 1967 he was After scientific study in France and the employed, either in Brussels, in Petten, United States Mr Geist was recruited, in or on secondment, in a special field

GEIST v COMMISSION

. . and this problem which, considered as a concern for a task which he considers as whole, is outside the jurisdiction of the committee.' of primary importance for the solution of energy problems' found himself increasingly isolated, as reflected by the and ended with the conclusion that: periodic reports of 1967 and 1969 which contain the following passage 'Mr Geist's periodic report is irregular in respectively: so far as it gives an appraisal, without details, of the ability, efficiency and 'Mr Geist has inevitably been very conduct in the service of this official concerned by the restriction of certain without describing the duties with which activities of the Joint Research Centre at he was entrusted and which he

situation. He does not accept that the chosen in preference to him and, by work on hydraulics with which he was memorandum of 17 November 1975, Mr entrusted has been withdrawn from the Geist was informed that he might be

posted to the establishment at Ispra. The Second Chamber of the Court, However, towards the end of the same having heard the views of the Advocate month, Mr. Geist asked to be able to General, decided to open the oral accept an invitation from the procedure without instituting a prepara International Atomic Energy Agency to tory inquiry. attend a conference of experts in Vienna in December. He was given permission to do so, with some reserve, according to II — Conclusions of the parties the Commission, in view of the nature of the questions dealt with in Vienna and The applicant claims in his application the current programme of the that the Court should: Community. 1. 'Declare the implied rejection by the opposite party of the complaint made On 10 December 1975 the Director by the applicant on 27 February 1976 and communicated on 15 March 1976

March 1976. On 27 February 1976, Mr resulting from his transfer while Geist submitted a complaint to the reserving the right to increase the sum appointing authority under Article 90 during the proceedings; of the Staff Regulations. Since the 4. Declare the persistent refusal of the administration did not reply, Mr Geist opposite party to describe the duties then lodged an application against the with which the applicant has been implied rejection of his complaint. This entrusted since 1967 and to draw up application was entered on the Court two-yearly periodic reports concerning him to be null and void;

GEIST v COMMISSION

8. Rule that the applicant will be able to The applicant completes or amends his continue these acitivities without conclusions in the reply on the following hindrance: points: 9. Order the opposite party to bear the 3. Order the opposite party to pay to the full costs of the proceedings; applicant a sum of FB 1 for In the alternative non-material damages resulting from A. Order the opposite party to produce: his transfer and the sum of FB 71 000 (1) the complete administrative file on for material damages, while reserving the applicant, that is, a file the right to increase the sum during containing all the documents which the proceedings, and with the should appear on it, and in particular deduction of daily subsistence allow­ his previous complaints; ances;

JUDGMENT OF 14. 7. 1977 — CASE 61/76

applicant's work for the III — Summary of the sub­ Committee of Experts of the missions and arguments of International Atomic Energy the parties Agency (vi) the Euratom Molten Salt Reactor Preliminary observation: The parties are Cooperation Agreement of 1962 in total disagreement as to the nature and between the United States of the significance of the facts which are at America and the European the basis of the dispute and which have Communities; been summarized under Section I above. B. ... They dispute the meaning of each (1) ... that moreover Mr Van Westen memorandum, each letter, each incident was settling scores; and each expression used by the opposite party. It is therefore useless to repeat all (b) In addition it is necessary to this detailed discussion which will be examine Mr Grass as to the found in the pleadings and the annexes following points: thereto. On the other hand the following (3) Whether he interviewed the summary will mention the principal applicant on his arrival at Ispra; contradictions which relate not only to (4) How he explains that he first the objectives of the European Atomic expressed the view that the Energy Community and the organization applicant would be able to carry of its departments but, more precisely, to out his work at the Committee the definition of the 'interests of the of Experts of the International service' referred to in the decision of 10 Atomic Energy Agency fully and December 1975, to the possible that he subsequently took employment of the applicant at Ispra, to responsibility for a memorandum the need for his external contacts and to providing that the applicant the absence of periodic reports. All the would not be able to carry out other documents referred to illustrate this work at all ...; these fundamental conflicts and to list (5) Whether he did not ask Mr them in the report would be irksome. On Dinkelspiler to transfer the the other hand it may be useful to read applicant to a post in which he them in order to establish the context would be able to carry out his and the atmosphere in which the dispute work at the Committee of Experts arose and developed. of the International Atomic

state the reasons upon which it is based. Thirdly, the applicant states that in so far The defendant claims the exercise of a as there is a statement of the reasons discretionary power in the organization upon which it is based it is of services and the optimum allocation of — inaccurate, since the allusion to the the staff and it maintains that the burden opinion of the Directors of the of proof has shifted because it is for the establishments concerned is false applicant to prove the existence of because the officials at Ispra who reasons extraneous to the service with the were concerned had not been help of objective, relevant and informed of the arrival of the concordant evidence. In reality, the applicant and of the duties with transfer remained the only possibility of which he was to be entrusted, usefully employing Mr Geist. Internal — necessarily incomplete because it was memoranda, which appear on the file, made after examination of a personal enable the reasons for the transfer to be file which was incomplete, in understood (Memoranda Nos 1017 and particular because the 1969 periodic 1257 from Mr Villani to Mr Geist of 17 report was criticized by the Joint November 1975 and 11 December 1975). Reports Committee and the following reports are non-existent. The Commission seems to reply to the fourth argument relating to the disguised Fourthly, the applicant considers that a sanction that it is in fact a correct decision taken in those circumstances application of the second paragraph of must be considered as a disguised Article 4 of the Staff Regulations. sanction or a deliberate downgrading of his position, for his new duties which are Finally, the Commission replies to the neither described nor identifiable, do not fifth argument concerning the duty of in any case come within the scope of an assistance imposed on the administration official of the level and the ability of the that the third paragraph of Article 24 of applicant who has since then been the Staff Regulations does not make it subject in Ispra to a hierarchy to which possible to acknowledge that an official he was not subjected in Petten. has the right to spend as much time as he wishes on a task which has been Finally, fifthly, the applicant states that given to him by another organization. the transfer decision makes it impossible for him to fulfil his duties at the In his reply, the applicant attempts to Committee of Experts of the Inter­ refute the replies given by the national Atomic Energy Agency while Commission by emphasizing the first, the subjects dealt with by that following points relating to his first two Committee are of the greatest interest arguments: and, secondly, it comes within the duty — alter the judgment in the Gutmann of the administration to assist officials case the Court gave judgment in the (third paragraph of Article 24 of the Staff Kley case (Case 35/72, 27 June 1973) Regulations) and not to prevent them according to which a transfer from taking part in work which is useful decision taken against the wishes of for science and for their career. the person concerned is an act adversely affecting him and the The defendant replies, it seems, to the reasons on which it is based must first three arguments of the applicant by therefore be stated;

— the stereo-typed reference to the presumptions'. However, in the present interests of the service does not case it is possible to come to such a enable the person concerned to decision by means of many views and appraise whether it is necessary to documents. lodge an application or enable the Court to exercise its power of judicial Finally, the applicant explains his fifth review; argument concerning the possible — the reasons on which it is based may employment of the applicant either in only be deduced from factors other programmes in which he could make full than the measure which was notified; use of his abilities or in external contacts it is in fact obvious that it is always which were in the past considered very possible to find motives for a desirable, as the file shows and as senior measure; it is impossible to make officials have acknowledged.

However, the according to which a transfer can reasons upon which the measure in only be made after examination of question was based which are essentially the file and the periodic reports, clearly stated in detail by previous which were in this case partially documents which have already been non-existent; this is all the more so referred to, fulfil the requirements laid since, in the absence of such an down in the judgment in the Kley case. examination, the decision must have The applicant is aware of this because he been taken 'blind' and therefore for attempts secondly to prove, with the help reasons which have not been of arguments which have already been acknowledged. refuted, that these reasons are inaccurate. Finally, the absence of the most recent The fourth argument of the applicant is periodic reports is of no influence since a based on misuse of powers. He admits transfer is not comparable to a that although administrative measures promotion and in any case the must normally be presumed to have been Director-General who took the decision taken in the interests of the service, that in question was fully aware of the ability is only a presumption juris tantum and the conduct of the applicant. which is capable of being rebutted, above all in the absence of valid reasons for the With regard to the allegation of misuse decision, by very broad evidence such of powers, both learned authors and as the statements of witnesses or case-law require proof, objective, circumstantial evidence; whatever the pertinent and concordant evidence which formulae used in national or Community is in this case totally lacking.

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the European Atomic Energy Com­ The defendant replies by arguments munity imposed by the Council on the which have been already mentioned Commission, or of the personal conduct under Section A above in fine in of the applicant. In particular, the connexion with the complaint of misuse applicant is, in Ispra as he was in Petten, of powers. It adds that the argument a scientific officer who kept his grade based on the detailed list of posts and was necessarily subject to a (organigramme) is irrelevant since the hierarchy. Only his 'persecution Staff Regulations only refer to the complex explains the fact that he concept of the list of posts (tableau des impugns to the administration objectives effectifs). other than those which have been clearly acknowledged. C — The action for damages based on the state of the personal file and B — The vacant post the conduct of the defendant

JUDGMENT OF 14. 7. 1977 — CASE 61/76

for which the Court will fix the Finally, the applicant should have compensation at the figure which it considered the authorization to keep considers fair whatever the standard and contact, even marginally, with the very low amount proposed in the International Atomic Energy Agency, as application. The payment of such a sign of goodwill. He was never compensation should not, moreover, prevented by that measure from prevent the administration from continuing his scientific work. He cannot re-establishing the applicant's position in therefore complain of any damage. the service.

The applicant next points out that the IV — Oral procedure damage caused by the obstacles put in the way of his external activities depends Prior to the hearing, the Court requested, on the request for a suspension of at the suggestion of the Judge- operation which has since been settled Rapporteur and having heard the views by the Order of 21 December 1976. of the Advocate General, that the Commission should submit by 10 The damage caused by the transfer itself February 1977 is the subjectmatter of a provisional calculation by the applicant amounting to FB 71 000, from which it is necessary 'all the correspondence between the Director General to whom Mr Geist was to deduct the daily subsistence answerable and the other Directors- allowances which have already been paid. General or heads of establishment of

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description and the allocation of At the hearing on 26 May 1977 the those posts. parties developed the arguments set out in the written pleadings. For his part, the applicant lodged a document and reserved the right to use it The Advocate General delivered his in his pleadings. opinion at the hearing on 30 June 1977.

Decision

1 The applicant took up his duties on 1 April 1962 at the Joint Research Centre at Petten (the Netherlands) as the 'head of hydraulic studies' and was established on 1 October 1962 as a scientific officer in Grade A 6.

2 As a result of favourable periodic reports pointing out his 'extremely sound and wide knowledge in his field of hydraulics and the allied fields of mechanics and research', he was appointed Head of the Hydrodynamics and Measures Division, a post which he occupied in 1963 and 1964.

3 In the context of these activities, he was seconded to the United States in 1964 and 1965 and on his return was promoted to Grade A 5 on 1 January 1966.

7 In 1975 the Directorate of the Joint Research Centre considered however that this situation could not continue and asked the applicant to apply for the post of scientific attache to the Community's delegation in Washington, a post which was however given to another official for reasons which are extraneous to the applicant's qualifications.

8 The development of reactor systems, which was left to the initiative of the Member States, was confirmed by a decision of the Council of Ministers of 22 August 1975 (OJ L 231 of 2 September 1975).

9 At the end of September 1975, the Director-General of the Joint Research Centre considered the transfer of the applicant to a post in another programme and took care to keep the latter informed of the attempts made to find him a post.

10 At the end of 1975 he was informed that in view of the programmes and the work to be carried out the only remaining possibility was two vacant posts at Ispra and he was asked to indicate his choice between them.

11 The applicant did not make use of this option and, by decision of 10 December 1975 of the Director-General of the Joint Research Centre, he was transferred to Ispra with effect from 1 March 1976.

12 In the meantime, the applicant had, because of his abovementioned external contacts, become coordinator of a group of experts of the International Atomic Energy Agency in his special field.

18 On 26 February 1976 the applicant requested the appointing authority to:

— annul the transfer decision,

— authorize him to devote all his time to the Vienna work,

— adopt a viewpoint on the observations put forward by him on the periodic reports of 1967 and 1969,

— describe his activities from 1966 to 1976,

— draw up periodic reports within the meaning of Article 43 of the Staff Regulations for the period from 1965 to 1975,

applicant since 1967 and should draw up the two-yearly periodic reports concerning him

— an order that the defendant should pay damages for the damage thereby suffered of an amount to be fixed by the Court ex aequo et bono

— the annulment of the refusal of the defendant to permit the applicant to continue, except marginally or for 10 %, his studies, research and collaboration in the field of thermal breeder reactors and in particular to act as coordinator and rapporteur for the Committee of Experts established by the International Atomic Energy Agency.

20 The requests formulated in the application and the reply and stated in detail during the oral procedure may be summarized in the form of three submissions which should be examined in turn.

I — The legality of the transfer decision

21 The applicant claims that the transfer decision, which was taken against his wishes and placed him in a serious position from the family point of view, did not state the reasons upon which it was based within the meaning of the second paragraph of Article 25 of the Staff Regulations and that the Court could not exercise its powers of judicial review on a mere reference to the interests of the service.

25 By memorandum from the Director-General of the Joint Research Centre of 11 December 1975 addressed to the applicant at the same time as the decision in question, it was explained to the applicant that the work in the field of molten salt breeder reactors could no longer be continued at the Centre and that in view of his special field it was only possible to consider transferring him to one of the two vacant posts at Ispra.

26 The transfer decision is therefore completed by a statement of the reasons upon which it is based of which the applicant must have been aware and which contains all the essential factors which guided the administration in its decision and are therefore sufficient to enable the exercise of judicial review.

27 It is therefore necessary to examine the basis of that statement of the reasons upon which the decision was based in order to see if it enables evidence of infringement of the Staff Regulations or of misuse of powers to be revealed.

28 It is therefore necessary to examine the circumstances in which the decision in question was taken.

29 The file shows that following the decisions of the Council of Ministers of 15 June 1965 and of 22 August 1975 amending the programmes it was no longer possible to use the applicant's skills in the establishment at Petten.

30 The applicant did not apply for any of the vacant posts which arose.

35 It follows from the foregoing that the transfer decision of 10 December 1975 was taken regularly both as to form and as to substance.

36 Consequently, the application for annulment of the transfer decision of 10 December 1975 and the corresponding action for damages must be dismissed.

II — The legality of the decision prohibiting the applicant to spend more than 10 % of his time on work for the International Atomic Energy Agency

37 The applicant complains that the administration only authorized him to spend a small proportion of his working time on the studies being carried out within the context of the International Atomic Energy Agency because he considers that this decision hinders the development of his career and that Article 24 of the Staff Regulations has thus been infringed.

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38 The administration is alone responsible for the organization of the services which it must be able to fix and alter on the basis of its tasks.

43 Article 43 of the Staff Regulations provides that a periodic report on the ability, efficiency and conduct in the service of each official must be drawn up at least every two years.

44 This document must compulsorily be drawn Up for the good administration and the rationalization of the services of the Community and in order to safeguard the interests of officials. It constitutes an indispensable criterion of assessment each time the official's career is taken into consideration by the administration.

45 One of the bounden duties of the administration is therefore to ensure that

that report is drawn up periodically on the dates laid down by the Staff Regulations and that it is drawn up in proper form.

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46 The file shows that the competent authority failed to fulfil its obligations by drawing up a report in 1969 the regularity of which is contestable in so far as it gives an appraisal, without details, of the ability, efficiency and conduct in the service of the applicant and by omitting to draw up the periodic reports concerning him in 1971, 1973 and 1975.

52 However, under Article 70 of the Rules of Procedure institutions shall bear their own costs in proceedings brought against them by servants of the Communities.

53 Since the applicant has only been unsuccessful in two submissions and since he has been partially successful in his conclusions in the third, it is necessary to order the Commission to bear one third of his costs.

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On those grounds,

THE COURT (Second Chamber)

hereby:

Delivered in open court in Luxembourg on 14 July 1977.

A. Van Houtte P. Pescatore

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 30 JUNE 1977 1

Mr President, European Atomic Energy Community Members of the Court, from the Joint Research Centre at Patten to the Joint Research Centre at Ispra. The proceedings with which we are dealing today essentially concern the This official took up his duties with the transfer of a scientific officer of the Commission in 1962. In February 1963

1 — Translated from the German.