C-33/79

defendant,

APPLICATION in Case 33/79 for the annulment of a decision of the defendant relieving the applicant of his functions as head of department assigned to the special department for statistics relating to "Other countries" in Directorate F (External relations, transport and services statistics) of the Statistical Office of the European Communities and assigning him to the post of principal administrator in Division F 1 (Statistical methods and classi­ fication of external trade) of the Statistical Office of the European Communities and of the implied decision rejecting the applicant's complaint relating thereto and also for a declaration that the Commission is liable to pay damages,

APPLICATION in Case 75/79 for the annulment of the express decision rejecting the above-mentioned complaint,

T H E C O U R T (Third Chamber)

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

Directorate F: External relations, transport Directorate F: External trade, ACP and non- and services statistics member countries statistics (S. Ronchetti) (S. Ronchetti) 1. External trade (R. Sannwald) 1. Statistical methods and classification of external trade (R. Sannwald) — Special assignments on methods (R. Kuhner)

2. ACP Countries (A. de Michelis) 2. External trade statistics (J. Nols) 3. Other countries (R. Kuhner) 3. Analysis of external trade and statistics (A. de Michelis) 4. Transport (H. G. Baggendorff) 5. Services (C. Simeoni)

KUHNER ν COMMISSION

On 26 July 1978 the applicant lodged a II — C o n c l u s i o n s of t h e p a r t i e s complaint, which was registered on 31 July 1978, against the arrangements Case 33/79 made with reference to him. Since he received no reply to this complaint on The applicant claims that the Court 28 February 1979 the applicant brought should: an action before the Court of Justice asking for the annulment, on the one (a) Annul the purported decisions of the hand, of the decision assigning him to defendant, namely a letter of 30 June his new post and, on the other, of the 1978 from Mr Petit-Laurent and a appointment of another official as head letter of 3 November 1978 from of the "Wages and incomes" department Mr Baichère, Director-General of in Directorate C (Demographic and Personnel and Administration, social statistics) and also asking for relieving him of his functions as damages (Case 33/79). head of the special department for statistics relating to "Other On 21 March 1979 the Commission countries" and assigning him to forwarded to the applicant a decision Directorate F.1 "with responsibility which was taken out of time, rejecting for special assignments on methods"; his complaint. (b) Annul the implied decision rejecting By an application lodged at the Registry his complaint in consequence of of the Court on 3 May 1979 the the Commission's silence for more applicant brought a second action before than four months following the the Court asking it to annul this express registration of his complaint on decision (Case 75/79). 31 July 1978 under No 139778;

In the alternative the applicant requests admissible only in so far as it is directed the Court to allow him to bring evidence against the Commission's decision that "during a conversation on 18 July relating to the contested assignment of 1978 in Luxembourg the Director- the applicant to a post rather than General of the Statistical Office asserted: against the communication of 29 June (a) that he had the greatest difficulty in 1978 or the letter of the Director- finding a new posting for him and (b) General of Personnel and Administration that the unfavourable assessment of the of 3 November 1978, neither of which quality of his work was not unconnected are decisions, the applicant replies that with his transfer". the two communications against which he has directed his application are the The applicant, who in his application only two documents by means of which originating proceedings also asked the he was informed of the contested Court to annul the appointment of decision assigning him to a new post and another official, G. Lohmann, as head of that it is clearly that decision which is the "Wages and incomes" department of the subject-matter of the application. Directorate C (Demographic and social statistics) has withdrawn this request in As the defendant has likewise pointed his reply. out that the second application (Case The defendant contends that the Court 75/79) is inadmissible because the should: express rejection of the complaint is merely a confirmatory document, the (a) Reject the appeal in part as being applicant replies that it is nothing of the inadmissible and in any event as kind because the express rejection unfounded; contains a statement of the grounds upon (b) Order the applicant to pay the costs. which it is based, which is to be found in neither the contested decision nor, by Case 75/79 definition, the implied decision rejecting The applicant claims that the Court the complaint resulting from the absence of any reply by the Commission. The should: applicant refuses to accept the relevance (a) Annul the express decision of 21 of the decided cases quoted by the March 1979 rejecting his complaint Commission pointing out that those registered on 31 July 1978; cases deal with disputes in which the (b) Order the defendant to pay the applicants relied on a purely confir­ costs. matory document as a pretext to re-open the time-limit for challenging a decision The defendant contends that the Court which had become definitive. Those decided cases do not apply to this case should: since the original decision was (a) Dismiss the application as challenged within the prescribed period. inadmissible and in any event as unfounded; Β — The substance of the two (b) Order the applicant to pay the costs. applications

grounds for the annulment, namely: (1) should therefore for this reason in itself breach of the obligation to give a be annulled. statement of the grounds upon which the decisions are based which is imposed by (2) Failure to observe the rights of the Article 25 of the Staff Regulations of defence Officials of the European Communities; (2) failure to observe the rights of the According to the applicant when any defence; (3) infringement of Articles 5 administration makes a decision likely to and 7 of the Staff Regulations; and (4) have a serious adverse effect on the breach of the duty of administrative interests of individuals, it is under a duty authorities to look after the well-being of to make it possible for the persons

Commission. The appointing authority never afforded him the opportunity to put forward his interests and systematically endeavoured to present him with a fait accompli by (1) The Commission has infringed notifying him only at the last minute of Article 25 of the Staff Regulations by not decisions affecting him and by not stating the grounds on which the stating the grounds upon which they decision assigning the applicant to a new were based and this has prevented him post was based even though this new from effectively defending his position. posting is likely to affect him adversely. According to the applicant it is clear (3) Infringement of Articles 5 and 7 of from the case-law of the Court of Justice the Staff Regulations and in particular from the judgment of 27 June 1973 (Case 35/72 Walter Kleyν According to the applicant, even though

disciplinary measure for his incom applicant's case. Whereas before he was petence or for serious mistakes in the directly under a director he now finds performance of his duties. The contested that he has been placed under the orders decision does not however state any of of a head of division with whom he was the grounds on which it is based and previously on an equal footing and his

duties are limited to the study of rejecting his complaint of 31 July 1978 methodological problems which do not submits that this rejection must be have any topical interest, when he was annulled, on the one hand, because it formerly head of a specialized depart- occurred after the expiry of the binding ment having a very wide field of action time-limits which the Commission is and study and with corresponding allowed under Article 90 of the Staff responsibilities. In spite of the fact that Regulations and because a later his assignment to a new post was strictly statement of grounds cannot make good within the letter of the law it amounts in the defect inherent in the earlier fact to a demotion which raises the decisions which were unlawful because presumption of a misuse of powers with of the failure to state the grounds upon the purpose of imposing a disguised which they are based and, on the other, disciplinary measure. because this late statement of grounds is moreover incomplete and incorrect.

within the meaning of the German law applicable to civil servants, they The Commission in its defences (in Cases nevertheless by implication incorporate 33/79 and 75/79) considers the the same principle whereof Articles 24, applicant's submissions in the order in 58 and 76 constitute several specific which they have been made. applications; he points out that legal writers (Euler, Europäisches Beam- (1) The defendant, after considering tenstatut, p. 225) advocate a broad the submission that no grounds are

As far as concerns the of service, abilities, experience and his requirement that the grounds on which a previous responsibilities. By means of the decision is based must be stated the contested decision the Commission has defendant observes that, according to the "not only brought to an abrupt halt the case-law of the Court (judgment of 14 progress of the applicant's brilliant and July 1977 in Case 61/76 Jean-Jacques promising career but also cast doubts on Geist ν Commission of the European his abilities or raised the presumption Communities [1977] ECR 1419 at p. that he has been guilty of some failing in 1432), for the purpose of deciding his work". whether the conditions of the second paragraph of Article 25 have been

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which were duly brought to the ization of the Statistical Office and that knowledge of the applicant and which he had meetings with the Director- clearly informed him of the reasons upon General several times so that he was put which that decision was based". In this in a position to submit observations. case the contested decision was preceded on 17 February 1978 by a statement by the Director-General of the Statistical Office to all the officials and the (3) With regard to the infringement of applicant has on several occasions had Articles 5 and 7 of the Staff Regulations the opportunity to acquaint himself with the defendant submits that although it is the reasons for the contemplated reor­ true that the withdrawal from an official ganization and planned disappearance of of some of the departments for which he the specialized department which he was previously responsible could, in directed. Moreover the grounds of the certain circumstances, prejudice his contested decision are evident from the rights under the Staff Regulations, it minutes of the meeting of the does not thereby follow that every Commission of 7 June 1978 and from departmental reorganization may be the communication to this institution called in question. It is not sufficient that from Mr Ortoli and Mr Tugendhat of such a reorganization brings about a which documents the applicant was change or even any reduction in his aware and to which he refers in his responsibilities but it is necessary that, complaint. taken together, his remaining responsibilities should fall clearly short of those corresponding to his grade and The contested decision is therefore based post, taking account of their character, on grounds which have been their importance and their scope communicated to the applicant and it (judgment of 20 May 1976 in Case fulfils the conditions prescribed by the 66/75 Margherita Macevicius v European second paragraph of Article 25 of the Parliament [1976] ECR 593). Staff Regulations.

the duties and powers attaching to basic substance of the administration's "Fiir- posts that officials in Grades A l to A 5 sorgepflicht" (duty to look after well- perform duties of a kind which cause being of officials). It is true that when them, according to circumstances and the latter assigns an official to a specific within each grade, either to direct post it is under a duty to take into administrative units or to carry out account his abilities and the interests of advisory duties or to advise an institution the service but those are assessments without any of these duties being which are primarily a matter for the considered more important than the administration (Case 35/72 Kley ν

It is clear on the other has proved neither the' existence nor a hand from the communication dated 31 fortiori the seriousness of the detrimental May 1978 from Mr Ortoli and Mr effects to his standing and reputation Tugendhat that incorporating a number caused by him being assigned to a new of specialized departments into one post. This new posting has not meant larger administrative unit has been that his duties are less important and is justified by the too limited size of these certainly not due to the fact that the

If the

3. Reply The Commission then considers the complaints that the grounds which allegedly serve as the basis of the The applicant replies that with regard to contested decision were late, incorrect the question whether the defendant has and inadequate and also the submission complied with the obligation to state the that there has been a misuse of powers. grounds upon which the contested The grounds referred to have not been decision was based the defendant has not stated out of time as the analysis of the even met the requirements of the decided circumstances which led to the contested cases which it has itself quoted. Although decisions contained in the defence (Case it is perfectly true that the Director- 33/79) indicates. On the other hand the General of the Statistical Office fact that the reply to the complaint did informed all the officials concerned of not deal systematically with all the the reasons for the projected reorgani­ applicant's arguments — in so far as the zation he gave no indication of the new rejection of the complaint must be postings which would result therefrom. regarded as an act adversely affecting the Moreover if a statement of the grounds official which the defendant disputes — on which a decision is based is to comply is not of such a kind as to invalidate that with Article 25, it must be in writing rejection. The statement of the grounds and, apart from the fact that the on which a decision adversely affecting references in the Commission's minutes an official is based is in fact adequate if do not contain a statement of the said those grounds are shown clearly and grounds, the applicant was not aware of unambiguously (judgment of 2 July 1969 them and contrary to the Commission's in Case 27/68, Reinaldas Renckens ν statement did not refer to them in his Commission of the European Communities complaint. [1969] ECR 255). Although the administration was not under a duty to The applicant's reply to the Com­ obtain the views of the applicant the mission's statement regarding observance latter nevertheless on several occasions of the rights of the defence is that the had the opportunity to submit his obser­ resultant obligation is not restricted to vations in connexion with the proposed disciplinary proceedings but has a much reorganization. wider application. In spite of making

Even if the reorganization of the Stat- istical Office was obviously not planned (5) that the post at present occupied by in order to apply to him a disguised the applicant was created out of a disciplinary measure (and he has never miscellany of duties and was not claimed that it was), it nevertheless found in any of the former schemes served as the pretext to "get rid of him". of posts. There is some evidence to suggest that the interests of the service were not the main reason for his new posting. In this In connexion with the administration's connexion the applicant sets out the duty to look after the well-being of its following facts: officials the applicant does not accept the defendant's restrictive interpretation of (1) setting up a new administrative unit this concept. Moreover French law and abolishing it fourteen months relating to civil servants also imposes later, each time referring to the upon the administration the duty to act importance of the field of studies in carefully and diligently when it decides question; to assign its servants to new posts. In his view he has shown in his application as well as in his reply that the defendant's (2) the Director-General of the Stat- policy on postings is inconsiderate and istical Office led him to understand inhumane and that the interests of the

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In answer to the arguments put forward With regard to the incorrectness of the by the Commission concerning the statement of grounds the applicant legality of the express decision rejecting maintains that, contrary to what the his complaint the applicant points out defendant has stated in its express that the period prescribed for reply to a decision rejecting his complaint, he has complaint is an essential procedural de facto been downgraded since the requirement non-compliance with which defendant has in fact itself created, makes this reply invalid. Since the outside the description of the duties and periods prescribed in Articles 90 and 91 powers attaching to each basic post in have to be strictly observed by officials it Annex 1 A, a post having the status of an is not possible to accept a different official who is a head of department system when these periods run against treated on the same footing as Grade A 3 the appointing authority. He then officials. expresses the view that the hypothesis envisaged in Article 91 (3) does not With reference to misuse of powers the apply in this action because it relates applicant refers to his application in Case only to the case where the appointing 33/79. authority makes its decision before an action is brought before the Court of 4. Rejoinder Justice. The defendant in its rejoinder repeats The applicant repeats that the statement that the requirement that there must be a by the defendant, in its express decision statement of the grounds on which a rejecting his complaint, of the grounds decision is based, as defined by the on which the decision is based is out of case-law of the Court, has been met in time and cannot remove the illegality of this case. the decisions challenged in his complaint and in his first application. It draws attention to the different facts and communications, both written and Even if it has to be accepted that this last oral, to which it has already referred and statement of grounds may be taken into infers from them that the grounds on consideration in order to assess whether which the decision to reorganize the the rejection of his complaint was lawful, Statistical Office and the decision to it would have to be held that this assign the applicant to a new post were statement of grounds is inadequate, based, were stated and that the applicant

was acquainted with these statements of lations the defendant does not accept the grounds. The Commission's decision of 7 facts pleaded by the applicant and June 1978 is not in any case a decision considers that the head of a special relating to a specific individual and department cannot be placed on the consequently is not subject to the same footing as even a potential head of conditions of Article 25 of the Staff division; in any case it is clear that Regulations as was indicated in inter alia arguments of a purely factual nature, the opinion of Mr Advocate General even if the existence of the facts has been Roemer in Joined Cases 109/63 and proved, which is not the case here, 13/64 (judgment of the Court of 16 cannot prevail over the legal rule which December 1964, Charles Muller ν The draws a clear distinction between the European Economic Community [1964] duties corresponding to Grade A 3, on ECR 663 at p. 678 et seq.). The decision the one hand, and Grade A 5 and Grade assigning the applicant to a new post is A 4 on the other. merely a direct consequence of the reor

are only infringed in cases where the On the question of observing the rights remaining duties of the official fall of the defence the defendant asserts that clearly short of those corresponding to the principle has been invoked mainly in his grade and post, taking account of connexion with contentious disciplinary their character, their importance and matters and does not in any case apply their scope, and even the applicant does where the individual interests of offcials not allege this. could not be seriously damaged, as in the event of assignment to a new posting in The defendant also disputes the appli the interests of the service. On the cant's statement that the reorganization strength of the judgment of the Court of of the Statistical Office in general and 14 July 1977 in Case 61/76 (Jean-Jacques the abolition of his specialized Geist ν Commission of the European department in particular are not justified Communities [1977] ECR 1419) the by the interests of the service.

KUHNER ν COMMISSION

this principle, which moreover has not or omission in the performance of its been proved to be common to the laws functions. In the alternative it states that of the Member States. According to the applicant has neither proved nor French law an official cannot avail offered to prove that he has suffered any himself of a right to perform specific damage whatsoever, either material or functions or to occupy a particular post non-material. and the administration must be able to adapt to constantly changing tasks (Plantey, Traité pratique de la fonction In his reply the applicant states that the publique, 3rd Edition, 1972, Vol. 1, Nos contested decisions have caused him not 1277 and 1286). Keeping the applicant's only non-material damage, namely to his name in the directory of the Statistical professional reputation, but also material Office has preserved his reputation in the damage, namely loss of promotion estimation of third parties. prospects, especially in his particular case, since he is approaching the end of his career. He goes on to say that future damage may also be the subject of Finally as far as concerns the applicant's compensation even if it cannot yet be offer, in the alternative, to produce accurately quantified. In his view he is evidence the defendant considers that it entitled to ask the Court to order the has no relevance since the content of the Commission to pay nominal damages of applicant's conversation with the one unit of account. Director-General is known owing to the minute drawn up by the latter and entered on the Court file. Consequently The defendant, in its rejoinder, reaffirms the decision to reorganize the Statistical that none of the conditions laid down by Office has no connexion with the the case-law of the Court, in particular applicant's professional qualifications in its judgment of 9 July 1970 (Case which have not been called in question 23/69 Anneliese Fiebn ν Commission of but only reassessed in relation to those of the European Communities [1970] ECR other officials on an equivalent level. 547) for the award of damages are present and that this claim must be rejected.

(a) Annul the "decisions" of 30 June 1978 of Mr Petit-Laurent and of 3 November 1978 of Mr Baichère which allegedly relieved him of his post as head of the special department for statistics relating to "Other countries" within the Statistical Office and assigned him to the post of principal administrator with responsibility for special assignments on methods in the special "Statistical methods and classification of external trade" department of the Statistical Office after its reorganization;

(b) Annul the Commission's decision of 7 June 1978 assigning G. Lohmann to the post of head of the special "Wages and incomes" department of the Statistical Office;

(c) Award damages.

3 In the second action (75/79) the applicant claims that the Court should annul the express decision of the Commission of 21 March 1979 rejecting his complaint dated 26 July 1978 and registered on 31 July 1978 against the decision to transfer him.

4 By an order of 30 May 1979 the Court (First Chamber) decided to join the two cases. In the course of the proceedings the applicant for his part withdrew his claim relating to the posting of G. Lohmann.

I — T h e s u b j e c t - m a t t e r and a d m i s s i b i l i t y of the a c t i o n s

8 It is against this express decision that the second action is directed, which the Commission considers to be inadmissible since it is merely of a confirmatory nature.

9 Although the course of bringing a second action against an express decision rejecting an official's complaint after the time-limit for so doing has expired originates in the Commission's bad practice of not replying to officials'

JUDGMENT OF 28. 5. 1980 — JOINED CASES 33 AND 75/79

complaints within the period of four months prescribed by Article 90 of the Staff Regulations, it is none the less true that, although an express decision which purely and simply rejects a complaint may disclose the grounds for this rejection, it only confirms the implied decision which preceded it. It is moreover necessary to point out that every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. It is only when this decision upholds all or part of the complaint of the person concerned that it will, in appropriate circumstances, constitute by itself a decision against which an action can be brought.

10 It is therefore necessary to conclude from the foregoing that the second action has no purpose and is therefore inadmissible and that the first action is in substance concerned with the applicant's posting as head of department being changed to that of principal administrator.

II — T h e s u b s t a n c e

which is evident from their description, namely: (1) official in charge of one sector of activity in a division; (2) head of a special department; (3) higher official engaged in planning, advisory and supervisory duties in one sector of activity; and (4) assistant to a head of division. This difference is moreover visible in the fact that two different names of principal administrator or head of department correspond to the posts comprised in the basic posts. Such a modification of the duties assigned to an official which results in an alteration of the description of duties could have an effect on the future prospects of the official concerned and may be such as to affect him adversely.

14 It follows that the decision in question had in principle to set out the grounds on which it is based and it is necessary to ascertain whether this requirement has been met while taking into account the fact that, since it is a measure concerning organization of the department, the duty to give a statement of grounds must be related to the discretionary power which the appointing authority exercises in this connexion and also to the marginal nature of the disadvantages which result for the official concerned from this kind of measure.

17 In those circumstances and since the decision at issue is necessarily linked to the organization of the service in the interests of the service, in respect of which the competent authority must necessarily have a wide discretion, the contested decision may be considered to have set out adequately the grounds on which it is based so that the submission made in this connexion must be rejected.

Second and third submissions

18 The applicant then pleads infringement of Articles 5 and 7 of the Staff Regu- lations on the ground that the duties assigned to him are not consistent with a post corresponding to his grade so that the contested decision is in fact a downgrading. In support of this complaint his main submission is that his previous duties were, by reason of their extent, importance and the official prerogatives attaching to them, of a distinctly higher order than his present duties. He emphasizes in particular that it is the practice of the administration to treat the head of a special department, especially with regard to the information which he receives, on the same footing as officials in Grade A 3. He pleads in addition breach of the duty known in German administrative law as “Fürsorgepflicht” [duty to look after the well-being of officials] according to which when the authority enacts measures it must take account not only of the interests of the service but also of the interest of the official in avoiding any detriment to his career.

19 Both of these submission must be rejected.

20 Regarding the submission based on Articles 5 and 7 of the Staff Regulations it should be noted that the rule that the post must correspond to the grade,

23 Examination of the file on the case and of the matters to be taken into consideration which emerged from the written and also from the oral procedure have brought to light n o factor of such a kind as to raise a presumption that the Commission failed to c a n y out a comprehensive exami- nation of all the determinative factors including those relating to the personal situation of the applicant before assigning him to his present duties. In particular there is n o reason to suppose that, by appointing another official, w h o had also previously directed a special department to direct the

JUDGMENT OF 28. 5. 1980 — JOINED CASES 33 AND 75/79

departments which had been merged, the Commission allowed itself to be influenced by reasons unconnected with the principles of justice and of good administration. Moreover according to the consistent case-law if the appointing authority makes a choice from several officials having the same qualifications, it does not, in so far as concerns the official which it has not selected, have to justify its reasons for deciding that his competitor was more suited than he was to meeting the requirements of the duties in question.

Fourth submission

24 According to the applicant the contested decision constitutes a breach of the rights of the defence because, as it is a measure likely to cause serious damage to (his) individual interests, it could not be taken without him being in a position to make his point of view known.

25 This case cannot be said to concern "the rights of the defence" but only a general principle of good administration to the effect that an administration which has to take decisions, even legally, which cause serious detriment to the persons concerned, must allow the latter to make known their point of view, unless there is a serious reason for not doing so. The contested decision, under which the applicant retains all the advantages of his grade and basic post, is not of such a kind as to make it necessary to comply with formal requirements other than those provided by Article 90 of the Staff Regulations for the purpose of protecting the interests of officials and servants , to which is to be added, if need be, judicial review by the Court.

29 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,

T H E C O U R T (Third Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to pay their own costs.