C-124/78

JUDGMENT OF THE COURT (SECOND CHAMBER) OF 12 JULY 1979 <apnote>1</apnote>

Harald List v Commission of the European Communities

Case 124/78

1. Officials — Applications to the Court — Act adversely affecting an official — Concept — Internal administrative measures — Exclusion — Conditions — Absence of effects on applicant's rights under the Staff Regulations (Staff Regulations, Art. 91)

2. Officials — Duty of the administration to provide assistance — Protection requested by an official against the alleged machinations of other officials — Unsuccessful attempts at reconciliation — Adoption of appropriate internal administrative measures — Observance of individual's rights under Staff Regulations — Legality (Staff Regulations, Art. 24)

1. An internal administrative measure Article 24 of the Staff Regulations if, does not constitute a measure which in answer to a request by an official may be the subject of an application for protection against the alleged to the Court under Article 91 of the machinations of certain of his Staff Regulations in so far as it does colleagues, and finding that its efforts not affect the rights under Articles 5 to bring about a reconciliation are of and 7 of the Staff Regulations of the no avail, it takes all the appropriate person concerned. steps to mitigate the deterioration of working relationships within the 2. The administrative authority is not in service without affecting the rights breach of its duty to provide under the Staff Regulations of the assistance under the first paragraph of person concerned.

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, assisted by Daniel Jacob, of the Brussels Bar, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,

APPLICATION in particular for the annulment of the decision taken by Mr Pignot to relieve the applicant of his duties as co-ordinator of the German translation section of the Administrative Commission on Social Security for Migrant Workers,

THE COURT (Second Chamber)

composed of: Lord Mackenzie Stuart, President of Chamber, P. Pescatore and A. Touffait, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

and from the second half of 1975 he informed him that when Miss Peppinck carried out the duties of co-ordinator of was absent Mr List would not assume the German translation section consisting responsibility for her duties. According of five officials in Grade L/A 5. to the defendant Mr Pignot informed the applicant only that during the absence of Miss Peppinck, who was taking several weeks' leave, he himself would assume On 15 June 1977 the officials in the responsibility for her duties. German translation section informed Mr Pignot, Head of the General Affairs Division that they would in future refuse On 4 July 1977 the applicant lodged an to work with the applicant. Mr Pignot additional document to his complaint tried to organize a meeting of the through official channels. A second various officials concerned but this could additional document was lodged on 25 not take place as the applicant refused to July 1977. take part declaring that he was not prepared to have a confrontation with the "conspirators". In a "note for the On 28 June 1977 the Director, Mr record" dated 20 June 1977 Mr Pignot Ciancio, suggested to the applicant that wrote that the attempts at reconciliation he be posted to the Task Force for initiated by him had failed and "in order Negotiations with Portugal.. The to ensure the continuity of the work and applicant declined that offer in a letter of in the interests of the service" he asked 1 July 1977. Miss Peppinck, Head of the translation department of the Administrative Commission herself to allocate the On 27 July 1977 Mr Baichère, the German translation work in her section". Director General, placed the applicant at The note was countersigned by the the disposal of the Task Force for various officials concerned including the Negotiations with Portugal. applicant. At the applicant's request Mr Pignot confirmed in writing in a "note for Mr Harald List through the The applicant maintains that the director of the Task Force had no work for him. intermediary of Miss J. Peppinck" dated The defendant however states that the 20 June 1977 that he had given Miss fact that there was no work for the Peppinck "instructions to allocate work amongst the members of the German applicant within that group was caused section of the Administrative solely by his refusal to translate into a Commission herself". language other than German although he had a perfect command of French and had stated in the note of 1 July 1977, in which he rejected Mr Ciancio's offer, On 21 June 1977 the applicant submitted that he was interested in Portuguese. a complaint to the Commission of the European Communities seeking primarily the withdrawal of the measures adopted On 24 October 1977 the applicant by Mr Pignot. submitted a complaint to the Commission "against all the ,appointing authority's acts or omissions operating to my detriment in this case". On 1 July 1977 Mr Pignot spoke to Mr List but the content of the conversation is interpreted differently by the parties. On 27 October 1977 Mr Baichère According to the applicant Mr Pignot informed the applicant that he was

1. Declare the decision of Mr Pignot, 3. The applicant's periodic report for the referred to in the note of 20 June period from 1 July 1975 to 30 June 1977, to discharge the applicant from 1977; his duties as co-ordinator of the German section of the Administrative 4. The periodic reports of Mr Forster, Committee to be null and void; the applicant's predecessor in the German section of the Administrative 2. Declare the decision of Mr Pignot Commission (or at least the that in case of absence of his superiors description of his duties). the applicant should not replace them or receive a temporary posting to be null and void; In its defence the defendant contends that the application should be dismissed as 3. Declare the decision of Mr Baichère, inadmissible and in any event without the Director General, of 27 July 1977 foundation and that the applicant should moving the applicant from his post as be ordered to pay the costs. In its reviser/co-ordinator in the Ad- rejoinder the defendant maintains the

LIST v COMMISSION

2. In the course of a meeting held at determined in the light of its content and the end of his leave, on 19 not in the light of the author's September 1977, the applicant description of it. informed Mr Duchateau, the official in charge of the Task Force for Negotiations with Portugal that he Secondly the defendant argues that the refused to carry out translations into decisions of 20 June and 1 July 1977 French in spite of the fact that those (first and second heads of claim in the translations were not intended for application) are not acts capable of publication. adversely affecting the applicant. Those Witness: Mr Duchateau, Director in measures by no means affect the position Directorate General I — External under the Staff Regulations of the Relations." applicant, who has retained his grade and duties, but merely concern the internal relations of the service and the administrative organization of the work. III — Submissions and argu­ The Commission refers to the judgments ments of the parties in Case 16/67 (Labeyrie v Commission [1968] ECR 293), Case 66/75 (Mace­ vicius v European Parliament [1976] 1 Admissibility ECR 593) and Case 129/75 (Hirschberg .(née Nemirowsky) v Commission [1976] 2 In its defence the defendant argues that ECR 1259) and concludes that the the application is inadmissible in so far as the first four heads of claim therein are decisions of 20 June and 1 July 1977 are concerned. not in the nature of measures which may be annulled within the meaning of Article 91 of the Staff Regulations. The defendant argues, first, that the appeal against the decisions taken by Mr Pignot on 20 June and 1 July 1977 (first and second heads of claim in the The defendant contends, thirdly, that the application) was lodged out of time. Mr appeal against Mr Baichère's decision of Pignot's decision of 20 June 1977 27 July 1977 to place the applicant at the formed the subject of a complaint disposal of the Task Force for

Negotiations with Portugal (third head for Personnel and Administration, of claim in the application) is himself used the word "request" to inadmissible because it has lost its describe the applicant's note to the purpose as the measure was superseded Commission of 21 June 1977. In that even before the appeal was lodged. note although the applicant certainly did not cite Article 24 of the Staff Regu­ lations he referred to it as he asked the Commission for assistance. The note of 21 June 1977 is therefore indeed a Finally as regards the fourth head of "request". claim the defendant observes that the appeal against the decision taken by Mr Baichère to put an end to the measure Contrary to what the defendant states placing the applicant at the disposal of the decisions of 20 June and 1 July 1977 the Task Force for Negotiations with are measures which may adversely affect Portugal is inadmissible as the decision the applicant. Those measures had in question was not referred to in the decisive effects on the applicant's duties. complaint through official channels The position would be different as preceding the application. regards tasks or powers which were merely a secondary part of the duties of the official in question such as being a member of a committee or a selection board. In his reply the applicant challenges the defendant's description of the documents sent to the Commission on 21 June and 4 Although Mr Baichère's decision of 27 July 1977 as "complaints". It is July 1977 was withdrawn it had extremely difficult, particularly for one produced both material and non-material who is not a lawyer, to draw a effects and the applicant was therefore entitled to seek its annulment which for distinction between a request and a complaint as the two concepts are very him would serve to remedy the situation. generally confused. Furthermore it is difficult to conceive of a complaint which does not at the same time contain In its rejoinder the defendant maintains a request as complaints generally are not the arguments set out in its defence abstract in nature but seek to correct a concerning the inadmissibility of the situation or to obtain a benefit laid down application. It emphasizes in particular that in so far as it refers to Mr Pignot's by the Staff Regulations and so forth. decision the note dated 21 June 1977 Bona fide application of the provisions in accordance with the intention of the from the applicant to the Commission does indeed constitute a "complaint" Community legislature, which was to and not a "request" as it seeks the avoid appeals to the Court not preceded revocation of a decision adopted by the by discussions with the administration, administration. should exclude any kind of secondary dispute on the question whether the appeal through official channels is a complaint or a request coupled with a Substance complaint or vice versa. Finally relying on the maxim error communis facit ius the applicant emphasizes, in the alternative, In support of his application the applicant that in the letter to the applicant of 27 relies, as regards the first head of claim July 1977 Mr Baichère, Director General in the application (Mr Pignot's decision

of 20 June 1977) on the following five Regarding the third head of claim in the grounds: application (Mr Baichère's decision to place the applicant at the disposal of the 1. No reasons are stated for Mr Pignot's Task Force for Negotiations with decision, in infringement of the Portugal) the applicant relies on the second paragraph of Article 25 of the same arguments as those raised in respect Staff Regulations; of the first head of claim but gives the following further details: 2. The scope and effect of the decision are to diminish substantially the 1. The contested decision constitutes the responsibilities of the applicant and thus to reduce his career prospects; sequel to Mr Pignot's decision of 20 June 1977 and bears the same defects; 3. The decision constitutes a change of the reasoning is merely stereotyped assignment within the meaning of and does not correspond to the facts Article 7 of the Staff Regulations of the case; which should have been effected by the appointing authority, in this 2. The measure was not adopted in the instance a Member of the interests of the service as it was Commission; evident that there was no work for the applicant in the Task Force for 4. Moreover the decision is a disguised Negotiations with Portugal. disciplinary measure which could only be taken in accordance with the rules laid down in Articles 86 and 89 of the Finally regarding the fifth head of claim Staff Regulations; in the application (request for assistance from the Commission) the applicant 5. The decision was not adopted in the states that his request of 21 June 1977 interests of the service but only under sought in particular to obtain from the pressure from the applicant's Commission protection against the colleagues who had conspired against him. conspiracy of which he was a victim and that the Commission had not acted on that request. As regards the second head of claim in the application (Mr Pignot's decision of In its defence the defendant makes the 1 July 1977) the applicant relies on the following observations concerning the same grounds as those set out above five arguments which are common to the subject to the following: first three heads of claim in the application made by the applicant: 1. As regards the absence of reasons it should be added that as the decision was notified orally it was not 1. Mr Pignot was entitled not to state the reasons on which his decisions of communicated to the applicant in writing without delay; 20 June and 1 July 1977 were based as the second paragraph of Article 25 2. The applicant adds an additional of the Staff Regulations concerns only argument relating to this head of measures which adversely affect an claim: the decision in no way to official. The decision of 20 June 1977 appoint the applicant as replacement on the other hand did state the although he was the senior official in reasons on which it was based and, the team constitutes an infringement furthermore, was supplemented by a of Article 26 of the Commission's "note for the record" bearing the Internal Rules of Procedure. same date and countersigned by the

applicant. As the decision of 1 July replace Miss Peppinck during her 1977 was taken a few days after the holiday he would have been exposed first of the contested measures the to fresh incidents which would applicant could not be unaware that certainly not have stood him in good the reason underlying the decision stead for possible promotion. Finally was the need to avoid too frequent regarding Mr Baichère's note of 27 contacts between the applicant and his July 1977 it was there emphasized five colleagues in the interests of the that the decision taken was based in Service. Finally the applicant provides particular on the acknowledged high no evidence to support his argument qualifications of the applicant. that the statement of reasons on which Mr Baichère's decision of 27 July 1977 was based has the same defects as that of Mr Pignot of 20 June 1977. In fact examination of Mr Baichère's note shows that the 3. Mr Pignot's decision of 20 June 1977 decision was taken both on account by no means altered the post of the of the needs of the Task Force for applicant, who retained his duties as Negotiations with Portugal and of the reviser; such a measure therefore did applicant's qualifications and his not constitute a change of assignment interest in Portuguese. within the meaning of Article 7 of the Staff Regulations and was therefore one which his superior officers were entitled to take. As regards the decisions referred to in the second and third heads of claim in the application the applicant merely makes a reference, without estab­ 2. The applicant has not established in lishing its factual basis, to the what way the contested decisions sub­ argument regarding the alleged stantially reduced his responsibilities. change of assignment which had been The applicant retained his Grade effected. L/A 4 and his duties as reviser. The sole effect of Mr Pignot's decision of 20 June 1977 was to entrust Miss Peppinck, the Head of the translation department and thus the applicant's superior, with responsibility for distri­ 4. The applicant submits no evidence to buting work between the officials in support his contention that the the German section. The internal contested decisions were "disguised measure which for a time had given disciplinary measures". There is him responsibility for distributing nothing to support the argument that work was cancelled by another those measures were based on a internal measure. Similarly regarding reason other than that referred to in the decision of 1 July 1977 it should the measures in question. be observed that the applicant has no better right than the other revisers to replace the head of the translation department when she was absent; taking the situation in the service into account there was the danger that if 5. The contested decisions were adopted the applicant had been appointed to in the interests of the service. Having

official replaces a superior who is absent a situation which is common to many or prevented from attending to his duties. working groups the Commission spared The contested decision was adopted no effort to settle the dispute but the when the head of the translation applicant did not co-operate in those department left on holiday; such a case efforts. Even if it were possible to rely on therefore does not constitute a fortuitous the obligation to provide assistance set happening or an unforeseen event and out in Article 24 of the Staff Regulations in view of the trivial nature of the events does not fall within the scope of Article 26. Even if Article 26 were applicable it in question that obligation was in any event satisfied in this case. would not necessarily follow that the contested decision infringes that provision. In fact that article provides for a system of automatic replacement, exceptions to which may be made by In his reply the applicant develops the decision of the Commission. In Case arguments set out in the application and 16/67 (Labeyrie v Commission [1968] gives further details concerning the tasks ECR 293) the Court decided that in a carried out by him within the case where an official's superior had Administrative Commission's translation deprived him of responsibility for a team. Whilst recognizing that the post of portion of the department previously co-ordinator as such is not provided for subject to his authority although, in in Annex I to the Staff Regulations the

JUDGMENT OF 12. 7. 1979 — CASE 124/78

Decision

1 This application, lodged on 29 May 1978, seeks the annulment of four sucessive measures taken in respect of the applicant, an official of the Commission in Grade L/A 4, and the annulment of the Commission's refusal

LIST v COMMISSION

of the applicant's request of 21 June 1977 "for protection against the machi­ nations of a number of his colleagues". The measures whose annulment he seeks, as described in the orginating application, are as follows:

— The note of Mr Pignot, Head of the Translation (General Matters) Division, of 20 June 1977 discharging the applicant from his duties as co-ordinator of the German section of the Administrative Commission on Social Security for Migrant Workers;

— The note of Mr Pignot of 1 July 1977 to the effect that in case of absence of his superiors the applicant should not replace them or receive a temporary posting;

JUDGMENT OF 12. 7. 1979 — CASE 124/78

section of the Administrative Commission. It should be noted that the task of co-ordinator is not provided for in Annex I to the Staff Regulations. According to the Guide Pratique du Traducteur [Translator's practical guide] (p.22), published in October 1975 by the Directorate General for Personnel and Administration, "the work of co-ordinators is of a purely technical nature. The supervisory authority remains wholly in the hands of the head of the division who, by that token, is alone responsible for the distribution of work and, where appropriate, the transfer of texts from one group to another ....» The note of 20 June 1977 by virtue of which the responsibilities of co-ordinator which had been carried out by the applicant were transferred to the head of department, Miss Peppinck, thus in no way affected the applicant's position under the Staff Regulations. That instruction constitutes merely an internal administrative measure which, in so far as it did not affect the applicant's rights under Articles 5 and 7 of the Staff Regu­ lations, cannot form the subject of an application to the Court.

5 The same conclusion must be drawn regarding the decision taken by Mr Pignot on 1 July 1977 himself to replace the head of department, Miss Peppinck, during her absence. That step relating to the organization of the service, which was even more limited in nature than the previous one, does not constitute "an act adversely affecting" the applicant within the meaning of Article 91 of the Staff Regulations as it in no way affects the applicant's position under those regulations.

Substance

10 The applicant alleges that the Commission failed in its duty to assist him laid down by the first paragraph of Article 24 of the Staff Regulations by not acceding to his request for protection "against the machinations of a number of his colleagues" which he made on 21 June 1977. That request followed the submission on 15 June 1977 of a "Note for the attention of Mr Pignot" signed by the five officials in the translation group co-ordinated by the applicant. In that note the applicant's five colleagues stated that they would thereafter refuse to co-operate with the applicant.

11 The first paragraph of Article 24 of the Staff Regulations provides that: "The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances ... to which he ... is subjected by reason of his position or duties".

12 It is evident from the file that in the days following the submission of the said note of 15 June 1977 an attempt was made by the Head of the Division to organize a meeting between the officials concerned but the meeting could not be held as the applicant refused to have a confrontation with the "conspirators". Finding that its attemps at effecting a reconciliation were of no avail the administrative authority adopted the various measures described above.

13 Contrary to what the applicant alleges these measures cannot be regarded as constituting a breach of the obligation to provide assistance set out in the

JUDGMENT OF 12. 7. 1979 — CASE 124/78

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

On those grounds,

THE COURT (Second Chamber)

hereby:

LIST v COMMISSION

1. Dismisses the application;