C-791/79

JUDGMENT OF 17. 12. 1981 — CASE 791/79

In Case 791/79

RENÉ DEMONT, an official of the Commission of the European Communities, residing at 113, Rue des Palmiers, Brussels, represented by Jacques Putzeys and Xavier Leurquin, both of the Brussels Bar, with an address for service in Luxembourg at the office of Mr Nickts, Huissier de Justice, 17, Boulevard Royal, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Denise Sorasio, a Member of its Legal Department, 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 for the annulment of the decision of 10 November 1978 by which the Commission transferred the applicant from Santiago, Chile, to Brussels by assigning him with effect from 1 January 1979 to the specialized department for generalized tariff preferences in Directorate E-2 of Direc- torate-General I, and of the express decision rejecting the complaint through official channels lodged by the applicant against that decision,

T H E COURT (First Chamber)

I — Facts and w r i t t e n p r o c e d u r e various aspects of Mr Demont's official activities. As a result of that report the Commission initiated an inquiry which led to the opening on 25 September 1978 René Demont, an official of the of disciplinary proceedings against the European Communities, was assigned, applicant. The proceedings terminated with effect from 1 August 1973, within on 15 June 1979 when Mr Commissioner the Directorate-General for External Tugendhat reprimanded Mr Demont. Relations, to the Delegation of the That decision has been challenged by the Commission to Latin America which at applicant and is at present the subject of that time was located in Santiago, Chile. proceedings before the Court in Case 115/80.

Officials assigned to non-member countries are subject to a rotation By telex message of 29 June 1978, Mr scheme instituted by Commission Burghardt, Assistant to the Director- Decisions dated 23 July 1975 and General of the Directorate-General for 24 November 1976. Within that scheme External Relations (DG I) informed Mr Mr Demont's transfer was envisaged for Demont "personally and unofficially" 1979 as is evident from the minutes of that the Directorate-General was about the meeting of 5 December 1977 of the to suggest to the Rotation Committee, Rotation Committee, which is the body due to meet at the beginning of July, competent for drawing up the list of that his name should be added to the officials who are to be transferred. staff rotation list envisaged for 1978.

26 April 1978 determining the staff II — Conclusions of the parties rotation lists envisaged for 1978 and 1979. In this connection, your Mr Démont claims that the Court rotation will form part of the transfers envisaged for 1979. The should: Committee has decided not to — Annul the defendant's decision of propose to the Commission that the 10 November 1978 to transfer the time-table should be amended in applicant from Santiago to Brussels; your case. — Annul the decision of 24 July 1979 2. So as to facilitate staff transfers, expressly rejecting the applicant's both for officials and their families, complaint through official channels; changes in assignment are normally arranged in such a way as to — Order the defendant to pay the costs. coincide with the summer holidays (end of the current school year). In The Commission of the European view of the differences in that Communities contends that the Court respect in Chile the relevant time in should : your case will be December 1978. Therefore you will be recalled to — Dismiss the application as un- headquarters with effect from founded; 1 January 1979 ...". — Order the applicant to pay the costs.

On 4 December 1978, Mr Démont received notification of a decision of the III — Submissions and argu- Commission of 10 November 1978 ments of the parties changing his assignment from Santiago to Brussels with effect from 1 January 1979. In support of his application, Mr Démont makes four submissions. Mr Démont lodged a complaint through official channels against the decision to A — The first submission alleges an transfer him which was expressly rejected infringement of Article 7 (1) of the Staff by Mr Commissioner Tugendhat on Regulations of Officials of the European 24 July 1979. Mr Démont therefore Communities and of the rules which the brought an action for annulment before appointing authority has laid down for the Court of Justice on 5 November the operation of a rotation system for 1979. officials assigned to delegations or infor- mation offices in non-member countries.

and are therefore mandatory rules which It follows therefore that it was possible the Commision must adhere to. for the decision to transfer the applicant, taken on 10 November 1978, to have The applicant states that under point 3.5 effect from 1 January 1979. of the rotation system agreed at the meeting of the Commission of 23 July The Commission acknowledges that the 1975, decisions relating to staff rotations lists of officials subject to rotation must must be adopted each year before be drawn up in such a way as to allow 31 January whilst the resulting transfers officials sufficient time to make all must be carried out during the course of necessary arrangements in preparation the third quarter. for their new assignment.

The reference to the interests of the which is flexible and capable of being service does not constitute a statement of adapted according to the circumstances. the grounds but is rather the allegedly As the main aspects of the rotation legal basis for the decision. As regards policy are laid down flexibly the same preparatory measures, whilst it is true, must apply a fortiori to the provisions according to the case-law of the Court, relating to the periods within which that an adequate statement of the decisions concerning staff transfers are grounds for a decision may be given by adopted and implemented. referring to such measures, it is at the very least necessary that the decision That implementation is moreover itself should contain a reference thereto. confirmed by the minutes of the meeting If this were not so, the official concerned of the Commission on 23 July 1975 could never know upon which of those where it is stated that the "transfers measures the appointing authority had should be carried out during the third based its decision and would thus never quarter". be in a position to assess the accuracy

and validity of the grounds invoked notice of the parties affected, as well as whereas the duty to give a statement of internal memoranda and other communi- the grounds is precisely intended to give cations upon which it is based. the official that opportunity. The necessary conclusion is therefore that the contested decision does not satisfy the In the present case it is plainly evident requirement contained in the Staff Regu- that the requirement to give a statement lations that it should state the grounds of grounds has been observed since the upon which it is based. measure adopted was based upon principles laid down by the Commission as regards rotation and applied by the Alternatively, the applicant contends that Rotation Committee and since the even if it were in any case necessary to applicant was aware of the purport of have regard to preparatory measures the those principles and was informed on fact remains that in the present case several occasions that they would apply those measures are contradictory and in his case. therefore do not make it possible to detect the grounds upon which the decision is based.

the measure itself. In fact it is clear from committed a breach of the principle of several decisions of the Court that, in good administration since it gave wider order to decide whether the requirement currency than was strictly necessary to a of a statement of the grounds upon memorandum from Mr Burghardt dated which a decision is based has been met, 23 June 1978 in which it was proposed it is necessary to consider not merely the to recall Mr Démont to Brussels decision itself but also the circumstances immediately, following accusations from in which it was taken and brought to the his former immediate superior, Mr L.

The applicant considers moreover that It points out that the contested decision, the Commission has failed to fulfil its taken on 10 November 1978, merely duty of assistance: constituted the last step in the rotation procedure commenced in December — By refusing to investigate the 1977 and emphasizes that that decision is relationship existing between the connected neither with the report drawn applicant and his former immediate up by Mr L. dated 19 June 1978 nor superior as well as the motives which with the disciplinary proceedings might have led the latter to wish to initiated on 25 September 1978 so that remove his former subordinate from even if there were found to be a breach the Santiago office; of the duty of assistance as regards the allegations made against Mr Démont that would have no effect on the validity — By not taking account of the fact that of the decision. The Commission points the applicant's son was undergoing out however, as an entirely subsidiary education in Chile in a local school point, that having received the report from which he could not be taken from Mr L., it promptly sent a away suddenly without an adequate commission of inquiry to Santiago, period of notice. Chile, and that the report of that body gave rise to the initiation of disciplinary proceedings in the course of which the The applicant states that as a result of applicant was heard and was allowed to the performance of the duties of the examine witnesses and was able to head of the branch office since 15 April demonstrate that some of the allegations 1978 the trust which he was legitimately made against him were ill-founded. entitled to place in the Commission had increased particularly since the latter had on several occasions acknowledged his merits. Those facts should have led the The Commission considers therefore that Commission to take the utmost care in it has adequately fulfilled its duty of checking the facts and to avoid any assistance by conducting an inquiry at decision which might appear to be in the which both sides were heard face to face nature of a disciplinary measure. and which was designed to investigate in the light of all the facts the allegations made against the applicant. The defendant submits first that the argument alleging a breach of the principle of legitimate trust must be As regards the memorandum from rejected. It points out that this principle Mr Burghardt of 23 June 1978 the has been recognized by the Court only in Commission considers that it cannot be connection with applications brought criticized for giving it wider currency under Article 215 of the EEC Treaty and than necessary since it was merely com- if it were intended to extend that municated to a restricted number of principle to litigation involving the European public service, its exact scope senior officials as well as the Chefs de in such a context would still remain to be Cabinet of the two Members of the determined. Commission responsible.

protect any official against serious accu­ responsibility for the branch office sations made against him, the official in Santiago, the Commission had must for his part place at the demonstrated that it no longer administration's disposal all evidence by intended to give effect to the which the facts may be verified. In this aplicanťs transfer in 1979; case Mr Demont, although he has referred to a "violent exchange of correspondence" which he claims to have — On 19 June 1978 allegations relating had with Mr L. during May and June to the applicant's conduct in the 1978, never produced those letters and service were made against him by his the Commission was therefore unable to former immediate superior, Mr L.; take them into consideration. — On 23 June, namely four days after Finally, as regards Mr Demont's the allegations had been made, Mr statement that the decision to transfer Burghardt informed Sir Roy him prejudiced his son's education, the Denman, Director-General of Direc­ Commission points out once again that torate-General I, that in his opinion the decision in principle concerning Mr L.'s report made it imperative Mr Demont's transfer was taken as early that the applicant be recalled to as 5 December 1977 and confirmed Brussels forthwith; during June and July 1978, thus allowing him to take all necessary steps to safeguard his son's education. Moreover — A short time later, as is evident from in his telex message of 20 July 1980, Mr the two telex messages from Burghardt expressly informed Mr Mr Burghardt dated 29 June and 20 Démont that the decision to transfer him July 1978, a proposal to add the would take effect as from 1 January applicant's name, with effect from 1979 and since the school year in Chile 1 September 1978, to the list of ended in December that would allow transfers envisaged for 1978 was him to overcome the difficulties arising made to the Rotation Committee from the change of school. which, however, decided to adhere to the list envisaged for 1979;

The defendant states for its part that the fact that the change of assignment Secondly, at its meeting on 11 July 1978, was made "before the disciplinary the Rotation Committee did not propose proceedings, initiated simultaneously, . . . that Mr Demont be "recalled" to had been closed" shows, contrary to the Brussels but confined itself to deciding applicant's assertion, that from the point that "applications would be invited for of view of the administration no link candidates to replace Mr Demont". existed between those proceedings and the change in assignment decided upon pursuant to the policy of rotation. Finally, since the decision to transfer the applicant was by no means a disciplinary It states that the contested decision had measure the administration had no already been envisaged for 1979, as early reason to defer it whilst awaiting the as 5 December 1977, in the context of outcome of the disciplinary proceedings the periodical rotation system for against Mr Demont. The argument to officials assigned to non-member the effect that the only measure which countries. Since it was decided in the administration could have taken as principle before the allegations against regards the applicant was to suspend him Mr Demont were known, the contested from his duties is therefore not well- decision to transfer him cannot be founded. considered in any way as a disguised disciplinary measure; on the contrary it was taken in the interest of the service and was even of such a nature as to further the applicant's career. IV — Oral procedure

3 The decision to reassign the applicant to headquarters in Brussels was taken in the context of Community rules relating to the rotation system in respect of officials assigned to non-member countries. Pursuant to those rules, laid down in particular by Decisions of the Commission dated 23 July 1975 and 24 November 1976, the normal duration of the assignment of such officials is fixed, in principle, at three years, which may be extended in the interest of the service from year to year to a maximum duration of six years. The list of officials to be included in the rotation system is drawn up by an ad hoc committee and the definitive list of assignments is then determined by the Commission.

4 Within the framework of that system, the Rotation Committee, at its meeting on 5 December 1977, entered the applicant's name on the "suggested list" of officials who might be included in the second rotation in respect of 1978/79 and envisaged that the applicant's reassignment would "only be possible in 1979". On 12 April 1978, the Commission formally assigned to the applicant as from 15 April 1978 responsibility for the branch office in Santiago and then, on 26. April 1978, it determined "the definitive list" of staff transfers for 1979. The applicant's name appeared on that list.

DEMONT v COMMISSION

5 By telex message dated 20 July 1978, the Director-General of the Direc- torate-General for External Relations brought that decision to Mr Demont's notice, explaining to him that, in view especially of the peculiarities of the school year in Chile, the change in assignment would take effect, in his case, on 1 January 1979.

8 That submission cannot be upheld. It is based on an erroneous analysis of the nature and mandatory character of the general provisions relating to the rotation system in question. Those provisions, which were adopted moreover outside the procedure laid down in Article 110 of the Staff Regulations, derive from the general power vested in every institution to provide for its own internal organization in the interests of proper efficiency. As the Court confirmed in its judgment of 24 February 1981 in Case 161/80 Carbognani and Coda Zabetta v Commission [1981] ECR 543, the institutions are at liberty to organize their offices with due respect to the tasks entrusted to them and to allocate the staff available to them in the light of such tasks. From that point of view, the general provisions laid down by the Commission in its decisions of 23 July 1975 and 24 November 1976 relating to the rotation system in respect of officials assigned to non-member countries did not establish an inflexible system of rules but rather a system which, as regards the rules governing its operation, may be adapted where necessary, in the interests of the proper efficiency of the service and in the interest of the official, to the needs of a given individual situation.

JUDGMENT OF 17. 12. 1981 — CASE 791/79

9 In particular that may be the case where, as here, considerations of a family nature, owing to the peculiarities of the school year in the country of assignment, make it inadvisable to give effect to a decision to reassign an official to Brussels on the date normally envisaged by the general rules but make it appear more appropriate, in the interests of the official concerned, that the decision should take effect on a different date which may, if necessary, be an earlier one.

DEMONT v COMMISSION

14 Moreover it may be seen from the documents in the file, as the applicant himself has admitted, that he could not have been unaware that the adoption of the contested decision had already been envisaged by the Rotation Committee on 5 December 1977 within the context of a periodic rotation of staff assigned to non-member countries.

15 In the light of those factors the second submission does not appear to be well founded.

16 (a) The applicant finally maintains that the contested decision constitutes a disguised disciplinary measure inflicted on him as a result of unsupported allegations made by his former immediate superior in Santiago. He infers from those facts that, by talcing such a decision, the Commission has not merely infringed Article 24 of the Staff Regulations, by failing to fulfil its duty of assistance to its officials, but has also misused its powers as regards the applicant.

17 As has already been stated the rotation scheme applicable to the present case is based on the principle that the normal period of assignment in non- member countries is to be three years and that on the expiry of that period the assignment "may" possibly be renewed from year to year for a maximum duration of six years.

18 It is not disputed that in the present case the applicant was assigned to Santiago as from 1 August 1973 and that it was only on 5 December 1977 that the Rotation Committee decided to enter his name on the list of those to be considered for rotation in respect of 1978 and 1979. It is also common ground that the assignment terminated on 1 January 1979. It follows that at the time of his reassignment to Brussels the applicant had long since completed the period of three years envisaged as being the normal duration of an assignment in non-member countries and had all but reached the maximum duration of his assignment. In accordance with the general provisions governing the rotation scheme at issue his reassignment to Brussels was thus a measure which the Commission was entitled to adopt in respect of staff assigned to non-member countries.

Costs

23 Pursuant to the first subparagraph of Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.

24 The applicant has failed in his submissions.

25 However, pursuant to Article 70 of the Rules of Procedure, in proceedings instituted by officials of the Communities, the institutions are to bear their own costs.

DEMONT v COMMISSION

On those grounds,

A. Van Houtte G. Bosco Registrar President of the First Chamber

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 15 OCTOBER 1981 1

Mr President, a single opinion on both these two Members of the Court, closely-connected applications by reason of the underlying facts. René Démont, an official, has brought two actions against the Commission of The application in Case 791/79 seeks the European Communities. the annulment of the decision of 10 November 1978, notified to the Although the two cases were not ordered applicant on 4 December 1978, changing to be joined for the purposes of the oral the assignment of René Démont and his procedure, I take the liberty of delivering post within the Directorate-General; it 1 — Translated from the French.