C-59/80

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

composed of: P. Pescatore, President of Chamber, O. Due and A. Chloros, Judges,

Advocate General: S. Rozès Registrar: J. A. Pompe, Deputy Registrar

gives the following

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JUDGMENT

On 12 April 1978 Dr Turner was given Dr Krecké, who had since asumed the the further duty of passing opinions on name Turner by marriage, was appointed diets proposed by patients' own doctors. as a probationary official on 1 February 1968 and established in her post by a decision of the Commission of the On 12 July 1978 the Commission European Communities of 31 July 1968. decided upon a reorganization of the medical branch in Brussels, which basically consisted in the creation of By a Commission decision of 22 July two medical branches, one for 1970 Dr Turner was appointed to a post "decentralized" staff (mainly consisting of principal administrator in Grade A 5 of the staff at the Joint Research Centres in the medical branch attached to the at Geel, Karlsruhe and Petten, teachers Directorate-General for Personnel and at the European Schools at Karlsruhe, Administration. Petten and Geel-Mol, the staff of press and information offices within the According to the detailed list of posts, Community and of offices of the the medical branch of the Commission, Commission situated in non-member which was headed by Dr Semiller, for countries and of the European Agency whom Dr Turner acted as deputy, at for Trade Cooperation with Develop- that time comprised a department of ping Countries), and the other for

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"centralized" staff in Brussels (consisting (a) Social medicine of Commission staff, including trainees and applicants invited to attend — The Development of social competitions, the staff of the Economic medicine at the Commission — and Social Committee, teachers at the Psychological and psychiatric European School in Brussels and the problems and other medico-social crèche staff). problems;

The responsible Member of the — Medical check-ups; Commission was given the task of taking the necessary decisions concerning the — Invalidity Committee; assignment to the two medical branches of the other officials forming part of the — The monitoring of medical Commission's medical branch. check-ups carried out outside the institutions (final paragraph of Article 59 of the Staff Regu- On 18 July 1978 Dr Turner informed the lations) and the giving of President of the Medical Board, a opinions on requests for consultative body comprising the doctors of all the Community institutions, that additional examinations; she was resigning as secretary and member of that board on account of — Medical supervision of the staff "recent events which reveal a complete of the Economic and Social disregard of the rules of medical ethics Committee; and loyalty to colleagues". — Other duties as and when the needs of the service require. Following several conversations which Dr Turner had with Dr Siddons and a (c) Administrative duties meeting on 12 March 1979 with the Director-General for Personnel and — Assisting in the administrative Administration of the Commission, by a work of the branch. letter of 14 March 1979 the Director- General confirmed to Dr Turner that as part of the reorganization of the medical The Director-General stated that he branch he intended to make her hoped Dr Turner would be able to agree responsible for the field of social to that posting; if not he would be medicine. That letter stated that her obliged to propose an alternative major duties at the Brussels medical solution to the Commission as regards branch headed by Dr Siddons would in the organization of the medical branch future be the following: which would mean that Dr Turner

Dr Turner was accordingly asked to take up from 10 May 1979 the duties According to D r Turner, the reorganiz­ described in the letter of 14 March. ation of the branch had still not been decided upon or even approved by the Commission, the group charged with drawing up a plan for the reorganization On 10 May 1979 Dr Turner drew the and operation of the branch not having Director-General's attention to the fact yet completed its work. In those circum­ that the Commission's decision of 12 stances any decision purporting to give July 1978 did not refer to the creation of her new duties would be premature to a "medico-social" unit or even less to say the least and, in any event, had no her assignment to the headship of that genuine justification. Moreover the unit; that being so, and since no decision duties planned for her came within the had been taken by the competent province of a psychologist or a authority on the basis of a detailed list of psychiatrist and did not correspond to posts setting out the operation and her own specialized field; the task of respective responsibilities of the two drawing up and implementing a newly-established medical branches, she programme to contend with alcoholism could but conclude that the proposal to was more a matter for a preliminary assign her to the headship of a socio- definition of a policy by the Commission medical unit had no legal basis. than the responsibility of a medical practitioner.

but that they would also include the She alleged that her new duties had been responsibility for medical check-ups on decided upon without any genuine prioi staff employed in the crèche. He asked consultation, that they had been imposed Dr Turner to send him proposals as soon after repeated threats and with no as possible for putting the planned indication of a valid reason, which is programme in the medico-social field incompatible with the rules of medical into effect. ethics; they infringed the freedom and independence of operation of the medical branch, had been notified to the staff during her absence from the branch By a decision of 8 June 1979 the and in disregard of the existing detailed Member of the Commission responsible list of posts, did not correspond to hei for personnel and administration decided specialized field, were excessively vague that in the interests of the service Dr and did not relate to any genuinely Turner would be assigned from 11 July existing situation. 1978 to the specialized unit called the Brussels medical branch for Brussels staff by way of change from her previous posting to the medical division. Besides entailing a significant reduction in the duties normally carried out by an established medical officer under the previous list of posts and benefiting On 3 July 1979 Dr Turner lodged a visiting doctors, her change of posting complaint under Article 90 (2) of the had all the features of a disguised Staff Regulations against the decision of disciplinary measure and, moreover, thai the Director-General for Personnel and was how it was seen in the medical Administration of 4 May 1979. branch.

moreover, carried out only very few measures to reorganize the medical medical check-ups. branch adopted by the Commission in July 1978 and immediately put into application. On 5 October 1979 Dr Turner confirmed to the Director-General for Personnel and Administration the The assignment of new duties involving reasons which had induced her to adopt medical responsibilities on no account the position of principle which she was represented an abuse of power by the maintaining in this case, both as an Director-General for Personnel and official and a doctor. Administration: it was Dr Siddons who submitted the first proposals to Dr Turner and the notification of her new On 6 November 1979 Dr Turner sent a duties, given in a letter of 14 March memorandum to the Commission in 1979, was part of the normal exercise of which she stated inter alia the reasons the powers of the Director-General for for which the restructuring of the Personnel and Administration who had medical branch, as decided upon by the direct responsibility for the admin­ Commission, could in her opinion only istrative unit to which Dr Turner accentuate existing problems and belonged. deficiencies.

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therefore constitute a material ground on Commission that in the interests of the which to base the complaint. service she should be assigned to another post corresponding to her training and experience. When the matter was put before him by Dr Siddons, the Director-General for Personnel and Administration wrote a On 8 February 1980 the Director- letter to Dr Turner on 19 December General for Personnel and Adminis- 1979, drawing her attention to the tration informed Dr Turner that he urgent nature of the proposals which she had proposed to assign her either to was to submit on the development of Directorate-General V (Employment and social medicine and the campaign against Social Affairs) to do social security alcoholism at the Commission. Those work or to Directorate-General XII proposals were to be submitted by (Research, Science and Education) to do 10 January 1980 at the latest. medical research.

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principal administrator with the Secre­ decisions of the Director-General of tariat of the Director-General for Personnel and Administration of 4 May Research, Science and Education in 1979 and of the Commission of 8 June Brussels as from 1 June 1980. 1979 assigning her to a new post. That application was registered at the Court under Number 59/80. According to Vacancy Notice N o COM/229/80 Dr Turner's duties consisted in participating in the organiz­ ation of the work of the Committee on On 29 May 1980 Dr Turner made a Medical Research and Public Health — second application against the Com­ CRM/CREST — and of its permanent mission decision of 20 May 1980 working parties, in interdepartmental imposing a compulsory transfer. That liaison to coordinate the Commission's application was registered under Number work touching on health and in under­ 129/80. taking a constant comparison of national research and development programmes in that field. In Case 129/80 Dr Turner also made an application for a stay of execution of the contested decision in accordance with The qualifications required for the post Article 91 (4) of the Staff Regulations were a university education leading to and Article 83 of the Rules of Procedure. the award of a degree or equivalent That application was dismissed by order experience, knowledge of medicine and of the President of the Second Chamber thorough experience relevant to the on 2 July 1980 [1980] ECR 2135. Costs duties. were reserved.

The Commission believes that I l l — C o n c l u s i o n s of t h e p a r t i e s Application 59/80 made against, on the one hand, the letter of 4 May 1979 from the Director-General for Personnel and The applicant claims that the Court Administration and, on the other hand, should: the decision of 8 June 1979 of the Member of the Commission responsible (1) In Case 59/80: for staff matters is inadmissible in both — Declare that the application is regards. inadmissible and well-founded; — Order the defendant to pay the (a) Contrary to the requirements of costs; Article 91 (2) of the Staff Regulations the decision of 8 June 1979 was not the (2) In Case 129/80: subject of a complaint before the — Declare the action admissible; application was made. — Annul the decision of the The applicant's complaint of 3 July 1979 Commission of 23 May 1980; is directed against the letter of 4 May — Award the applicant by way of 1979, and, judging by its wording and compensation for non-material content, certainly does not cover the damage a sum equivalent, pro- decision of 8 June. The applicant's dis- visionally and subject to sub- agreement concerns the new duties sequent adjustment, to two years' assigned to her by the letter of 4 May salary; and not her assignment by the decision — Order the defendant to pay the of 8 June 1979 to the medical branch for Brussels staff. costs.

(b) Furthermore the complaint in the The Commission contends that the Court application is really that the Commission should: assigned to Dr Turner insufficiently defined duties which the Director- (1) In Case 59/80: General for Personnel and Adminis- — Dismiss the action as inadmissible tration was not empowered to determine and in any event as unfounded; or even assign, and that it wished to be rid of the applicant. — Order the applicant to pay the costs; The application therefore contests only the procedure which led to Dr Turner's (2) In Case 129/80: being given specific duties and the nature — Dismiss the action as unfounded; of those duties. However, the single,

(b) The applicant's submissions concern In so far as the application seeks the both contested measures which have the annulment of the decision of 8 June 1979 same purpose and complement one it is inadmissible because, contrary to another. Article 38 (1) of the Rules of Procedure, it contains no statement of the grounds on which that decision is contested. (c) The final objection of inad­ missibility raised by the Commission is irrelevant because the applicant has (c) By a decision of the Commission of brought a second action before the 20 May 1980 the applicant was Court and lodged an application for the transferred as from 1 June to a vacant adoption of interim measures against the post in the Directorate-General for decision imposing a compulsory transfer. Research, Science and Education; therefore the two decisions referred to in Application 59/80 ceased to have any Β — The substance effect on 31 May 1980. Since that date at any rate the applicant has no longer had an interest in seeking their annulment. The applicant's grounds for seeking the According to the case-law of the Court annulment of the three contested when the contested measure ceases to measures are infringement of Article 7 have effect during the proceedings (1) of the Staff Regulations and misuse before the Court the action loses its of power. A further ground on which purpose. Application 129/80 is based is the infringement of essential procedural requirements and breach of the The applicant for her part believes that administration's duty of care. The Application 59/80 is wholly admissible. application for damages seeks compen­ sation for the non-material damage suffered by the applicant. (a) A reading of the complaint of 3 July 1979 clearly shows that it expressly and explicitly covers both the decision of The Commission considers that all the 8 June and that of 4 May 1979. Fur­ submissions put forward by the applicant thermore both decisions are closely are devoid of any foundation. linked together, both adversely affect the applicant, have the same statement of the reasons on which they are based and 1. Infringement of Article 7 (1) of the pursue the same object. They may Staff Regulations therefore legitimately be contested jointly in a single complaint. The applicant contends that the contested measures cannot be justified in any way Furthermore, in his express decision by the interests of the service, which, of 13 December 1979 rejecting the according to Article 7 (1) of the Staff complaint, the Commissioner responsible Regulations, is the condition for the for staff matters understood the tenor of validity of an appointment or a transfer.

The Commission's medical branch is one providing an industrial medical service and is therefore by definiton engaged in (d) Even supposing that the Director- preventive medicine; the purpose of General for Personnel and Adminis- preventive medicine is obviously social. tration had the power to create a The doctors employed in the medical "medico-social" unit within the medical branch are, by the nature of the services branch, such a decision could in any which they provide, practitioners of event only have been legitimately industrial medicine; since all medical adopted after the Commission had been work has a social aspect, all the doctors notified about the operation of the two in the medical branch perform a medico- medical branches created at Brussels as social function. The creation of a promised by its Member responsible for "medico-social" unit within the medical staff matters. That notification was branch for Brussels staff- is absurd in however not received until November itself or, at any rate, an outright mis- 1979 which was several months after the apprehension of the duties habitually decision was taken to set up a "medico- performed by doctors working in the social" unit and after the applicant had medical branch. been assigned to her "new duties".

interpreting electro-cardiograms in the decentralized staff prevented the centralized medical branch as well as in applicant from being transferred within the decentralized medical branch and she that branch is belied by the fact that she was the only specialist in internal was transferred out of the medical medicine in the entire medical branch. branch together with her post. Moreover problems had arisen over the custody of the applicant's medical files after the almost immediate implemen­ During the seven years of her basic tation of the decision to transfer her studies, ten years of specialization and compulsorily. ten further years spent in the Commission's medical branch the applicant performed exclusively medical A medical practitioner who belongs to work. Even though employed as an the medical branch of an institution "official" in an international organi­ cannot be entirely subject to the power sation she was entitled to hope that her of the administration as regards the qualifications and experience would be course of his career and, in particular, taken into account in order to assign her transfers outside the medical branch. The to a suitable post and that they would situation which has befallen the applicant not be deliberately ignored to such a is manifestly incompatible with the degree that she would be given organ­ absolute necessity to guarantee the izational and coordinating duties freedom and independence, both ethical essentially administrative in nature. and technical, of a practitioner of industrial medicine. The applicant always wished to practise medicine; she entered the service of the As a result of her transfer the applicant is Commission in an administrator's post no longer able to make available to the because it was impossible for her at the Commission her knowledge and many time to establish herself as a doctor in years of experience in internal medicine Belgium and it was a purely temporary and cardiology; she has been restricted arrangement. to administrative and executive duties inferior to her professional qualifications, which is not in the interests of the service The post to which she has been to which she has been assigned. The transferred relates only to duties which work which she is asked to do is not that are insufficiently specified and which are of a doctor but of a university graduate not in accordance with her abilities. In with medical knowledge; the training particular, only "medical knowledge" is and professional experience of doctors required on the part of the occupant of working in the field of medical research the post, which reveals the inappro- are necessarily fundamentally different priateness of the post in question to the from those of the applicant. Clinical and applicant's abilities. scientific training must not be confused; apart from the applicant Directorate- General XII does not have any doctors who are clinicians. The Commission believes that the three contested decisions are in the interests of the service and furthermore that they have assigned to the applicant a post The contention that the absence of any which corresponds to her abilities and vacant post in the medical branch for training.

(b) It is apparent from the letters from The creation of a medico-social unit the Director-General for Personnel and within the medical branch represents no Administration of 14 March and 4 May more than an organizational measure 1979 that, contrary to what the applicant internal to the branch which was alleges, the medical duties assigned to intended to put into practice one of the her were clearly defined and equal in guidelines laid down by the Member of importance to those which she previously the Commission responsible for staff performed, if not more important. matters. The measure was certainly within the powers of the official in charge of the Directorate-General for The elaboration of a genuine policy of Personnel and Administration to which social medicine is far from being the medical branch is attached. nonsense; on the contrary it is an important task which was initially assigned to the applicant, who failed to appreciate its scope. (d) The purpose of the communication of 7 November 1979 from the Member of the Commission responsible for staff Despite numerous reminders, between matters was simply to report to the May 1979 and May 1980 the applicant Commission and not to submit proposals failed to submit proposals for the concerning the medical branch. It was in implementation of the programme of no respect a prior condition for a new social medicine which was her main task allocation of duties in that branch and for several months she did not carry out any medical check-ups, which was also one of her tasks, so it is hardly appropriate for the applicant to speak of (e) The applicant's further arguments a reduction of her medical work. concerning the decision of 20 May 1980 imposing a compulsory transfer are not convincing either.

The applicant's new work consists inter The argument that it is not in the alia in participating in the organization applicant's interests to be transferred to a of the work of the Committee on post not involving the exercise of Medical Research and Public Health and medicine is a surprising one considering of its permanent working parties, that it relates to the submission that the interdepartmental liaison to coordinate interests of the service have been disre­ the Commission's work touching on garded. It is not the administration's health, undertaking a constant compari­ duty to try to keep an official in a son of national research programmes in specific post, to the detriment of the this field and coordinating the work of interests of the service, in order to enable more than 80 committees in the that official to revert to his professional Commission dealing with health career outside the insitution at a later problems. The applicant performs her date. duties under the Biology, Radiation Protection and Medical Research Programme to which two other doctors It should be remembered that at the on a full time basis and two on a part- outset the applicant carried out time basis have now been assigned. It administrative duties corresponding to cannot be argued that the duties assigned her qualifications and the position is no to the applicant are not sufficiently different now. defined and cannot be performed by a doctor.

The applicant argues that, even (d) The Commission could have supposing that the contested decisions transferred the applicant to the medical could have been based on the interests of branch for decentralized staff where she the service, the fact still remains that could have continued to practise their main, indeed their sole, purpose medicine. Moreover, the Brussels was to cause her harm. medical branch did other work in which the applicant and her specialist knowledge could have been put to better use. (a) The administration sought, through the application of the decision which it had taken to reorganize the medical The Commission acted out of the branch at Brussels, to exclude the conscious and persistent desire to remove applicant from her medical work the applicant from her medical connected with staff recruitment by responsibilities and sought to conceal its giving her responsibility for a unit true intention by artificially invoking the improperly entitled "medico-social" interests of the service. which did not actually entail any independent medical work suitable to be undertaken by a doctor serving as an official. (e) The applicant was transferred to Directorate-General XII with her post and she was not replaced either in the work which she had done in the medical (b) She had received some criticism at branch or in her new work. one time about the medical examinations to which she subjected new officials upon their recruitment. That situation The description of duties contained in had not pleased the Directorate-General Vacancy Notice N o C O M / 9 4 7 / 8 0 for for Personnel and Administration. The the recruitment of a new medical officer purpose of inventing a "medico-social" to the medical branch for Brussels staff unit when there was no real need for it made no reference to the medico-social was simply to remove the applicant from work which the Commission had claimed certain medical responsibilities. could not be delayed any longer. Moreover, the qualifications required for the post were a university education in medicine leading to a degree in (c) The compulsory transfer was really medicine. Yet when she was transferred a disciplinary measure taken against her. to Directorate-General XII the applicant As a practising doctor anxious to remain was not transferred to a doctor's post but

It is therefore quite clear that the (b) The applicant was certainly not Commission's purpose in compulsorily deprived of the greater part of her pro­ transferring the applicant was not to fessional work; since she had been given meet the requirements of the service, new duties, some tasks, such as carrying which in this case entailed the per­ out medical examinations on re­ formance in the medico-social field cruitment, were, in the ordinary course without delay of indispensable work, but of things, taken from her. That single sprang from the obvious intention to fact does not justify her in contending remove the applicant from the medical that the purpose of the contested branch. decision was to remove her from those duties. Furthermore, it should be remembered that, save for the limits imposed by Articles 5 and 7 of the Staff The Commission recalls that under the Regulations, an official has no right to case-law of the Court proof of misuse of keep any specific duties. power is subject to the existence of objective, relevant and concordant evidence demonstrating that the contested decision was taken for purposes other than those indicated; the (c) The case-law of the Court applicant, however, has not adduced any recognizes the freedom of the evidence indicating that there has been Community institutions to organize their any misuse of power. internal work in the best interests of the service. Therefore it is not incumbent on the applicant, in an action for annul­ ment, to embark upon an examination of the merits of the proposals concerning (a) Besides the development of a social medicine or the extent of their programme of social medicine, the duties usefulness. The Commission, for its part, assigned to the applicant in the medico- considered it to be desirable to develop social branch were to carry out medical social medicine in a way which would check-ups, to participate in the work of both be of assistance to the officials the Invalidity Committee, to monitor concerned and help to make its medical check-ups undertaken outside departments work better. the institutions, to give opinions on requests for supplementary examinations, to be responsible for medical surveillance of the staff of the Economic and Social Committee and to participate in the (d) The authority's responsibility as administrative work of the branch; those regards the organization of its responsibilities cannot be described as departments extends to all officials, "aberrant and conferring no benefit on including the members of the medical the patient". The submission that there branch. The principle of medical has been a misuse of power therefore independence has not been breached by concerns only some of the applicant's the administration's assigning certain

The applicant claims that the decision (e) The decision of 20 May 1980 of 20 May 1980 to transfer her imposing a compulsory transfer on the compulsorily was based on incorrect applicant was in the interests of the reasons in so far as it states that the service; therefore it cannot be applicant did not adapt herself to the stigmatized as a misuse of power. new duties which she had been given in the medical branch under the decisions of 4 May and 8 June 1979 assigning her to a new post. (f) As there was no vacant post in the medical branch for decentralized staff, the applicant could not be transferred within that branch; as for the duties The circumstances in which those "new connected with cardiology work, at the duties" were assigned to her, the fact medical branch for Brussels staff they are that she found it impossible to ascertain assigned to a doctor engaged on a part- the exact nature of her new responsi- time basis, whose work is satisfactory bilities and the withdrawal of the greater and there has been no reason to part of her medical work likely to entail discharge that doctor from those duties. medico-social case-work did not enable the applicant to accept those new duties without causing herself insurmountable difficulties. (g) By giving the applicant new duties not involving the practice of medicine the Commission obviously did not prohibit the applicant from practising her Moreover, the alleged " failure to adapt profession but merely exercised its power herself' was contested by the applicant to reorganize its departments. In the in her first application and the course of his career an official may be Commission is not entitled to base the required to perform different duties and decision imposing a compulsory transfer when moving from one set of duties to on that ground as its soundness has not another he has no justification for yet been ascertained by the Court. considering his interests to have been adversely affected. The Commission observes that the reasons on which the decision is based (h) The medico-social work is at the are not only the failure of the applicant present carried out by the head of to adapt herself to her duties in the

4. Disregard of the duty of care The Commission believes that the substance of the concept of "duty of care", which has been recognized by the The applicant claims that the duty of Court, should be determined in each care, embodying the general principle individual case; it may not be used of good management and sound indiscriminately in support of no matter administration, has been breached in what kind of argument and in the various respects in this case. absence of a sounder legal foundation.

(a) There is nothing to indicate that the (a) When she had an interview with the concept of the duty of care requires the Director-General for Personnel and administration to inform an official who Administration on 6 May 1980 before is summoned to an interview that it she was transferred the applicant was not concerns his possible transfer. The advised of the purpose of the meeting to applicant does not mention any factor which she was summoned; that capable of demonstrating that any failure behaviour on the part of the to indicate the purpose of the meeting of administration was improper not to say 6 May 1980 might have caused her some damaging. kind of harm. The applicant may not in

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any event argue that the purpose of that hostility which manifested itself first in a interview came in any way as a surprise new posting and then in a compulsory to her and it is not denied that she was transfer against which she was obliged to given the opportunity of putting her case take action in order to preserve her at her leisure. interests and rights.

Furthermore, the immoderate nature of The applicant believes that by depriving the adjectives used by the applicant her of the opportunity to practise the art hardly conceals the lack of substance in of healing in the exercise of her new her allegations. duties the Commission has acted in a manner which is injurious to her. The Commission has cast a slur on her pro- The fact that the applicant has been fessional abilities and injured her repu- given duties corresponding to her skills, tation. Since, in medical circles, the grade and post, even though not decision taken against the applicant involving the practice of medicine, appears to be an undisguised disciplinary cannot damage her reputation or be of measure, it might also reflect on the any injury to her; a fortiori that decision reputation, ability and integrity of her can have no effect on the applicant's husband who is also a doctor in Brussels. husband who has nothing to do with the dispute.

1 By two separate applications lodged at the Court Registry on 21 February and 29 May 1980, the applicant, Dr Mariette Turner, née Krecké, a medical practitioner and an official of the Commission of the European Communities in Grade A 4, brought actions for the annulment of, first, the decision of the Director-General for Personnel and Administration of 4 May 1979 assigning new duties to the applicant as part of the reorganization of the Commission's medical branch in Brussels and the Commission's decision of 8 June 1978 reassigning the applicant to the medical branch for Brusseles staff and, secondly, of the Commission's decision of 20 May 1980 compulsorily transferring the applicant to a post coming under Directorate-General XII (Research, Science and Education). In addition the second application includes a claim for damages, provisionally estimated at two years's salary, as compensation for the injury which the applicant believes she has suffered as a result of the change in her duties.

2 The applicant received her medical training at the University of Strasbourg, specializing in internal medicine and cardiology. She left university with the grade of assistant head of clinic at Medical Clinic A of the Faculty of Medicine of Strasbourg. In 1966 she entered the service of the European Atomic Energy Community after a particularly glowing assessment of her application and later, in 1968, she was appointed to the Commission's medical branch (Directorate-General IX, Personnel and Administration) in which, in the period prior to the dispute, she was assigned to the department of preventive medicine where her main functions were carrying out exam- inations on recruitment and medical check-ups, checking reports on medical examinations, vaccinations, the sick-bay, medical supervision of the crèche

6 After various talks between Dr Siddons and the applicant and an interview on 12 March 1979 between the applicant and the Director-General on 14 March 1979 the Director-General sent the applicant a letter in which he confirmed that as part of the reorganization of the medical branch he intended to put Dr Turner in charge of a "medico-social unit" in the medical branch for Brussels staff. It was defined in these terms :

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(1) Social medicine

— Development of social medicine at the Commission — Psychological and psychiatric problems and other medico-social problems;

— The drawing up and implementation of a programme to combat alcoholism at the Commission;

— Liaison with the Welfare Division.

(3) Administrative duties

— Assisting in the administrative work of the branch.

7 After the interview on 12 March 1979 the applicant sent the Director- General a report dated 13 March 1979 in which she set out her view of medical examinations on recruitment following the conversation which had taken place.

8 By a letter of 21 March 1979 the applicant informed the Director-General that it was not possible for her to consent to the proposal which had been made. She contended, first, that the Commission had not taken any decision for the purpose of organizing a department of that nature and, secondly, that the duties listed under "social medicine" were not related to her own medical speciality.

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9 By a letter of 4 May 1979 the Director-General formally requested the applicant to take up her new duties from 10 May stating that, besides psychological and psychiatric problems, the work under the head "social medicine" would consist of "examining together with the other departments of the administration certain individual cases presenting both medical and social problems".

1 1 On 18 May 1979 Dr Siddons gave the applicant confirmation of her new duties stating that from 28 May 1979 they would be those described in the Director-Generaľs letter of 14 March 1979 mentioned above. H e added that the description of duties was sufficiently detailed to enable the applicant to implement the programme envisaged. At the same time he asked Dr Turner to let him have proposals as soon as possible for carrying it out. T o that letter a "staff note" was attached listing Dr Turner's duties in identical terms to those contained in the letter of 14 March 1979 except that they included among the "other duties as and when the needs of the service require" medical check-ups of staff employed in the crèche. The document also stated that from 28 May 1979 examinations on recruitment would be carried out by Doctors Callebaut, Klein and Mancini. It became apparent during the pre- liminary inquiry that those three doctors worked for the Commission part- time as visiting doctors.

12 On 8 June 1979 the Commission adopted an express decision reassigning Dr Turner from the old medical branch to that for Brussels staff. That decision gives no details of the new duties assigned to the applicant.

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13 On 3 July 1979 the applicant served a complaint on the Commission under Article 90 of the Staff Regulations against the decision of the Director- General for Personnel of 4 May 1979. In her complaint she claimed that, besides the fact that she was placed under the direction of another doctor in the same grade as herself, the duties in the so-called "medico-social" field were excessively vague, bore no relation to the facts of the situation and hardly any to her own specialized field. So, besides involving a significant reduction in the work normally carried out by a medical officer serving as an official in the medical branch, the change of posting imposed upon her had all the characteristics of a disguised disciplinary measure and had been interpreted in that way in the medical branch.

18 After obtaining information from those two directorates-general on the posts offered the applicant informed the Director-General by a letter of 26 February 1980 that neither of the posts comprised duties related to the practice of medicine, internal medicine, cardiology or industrial medicine and that the two posts in question had no well-defined duties at all.

19 In the same period the administration published Vacancy Notice No C O M / 229/80 relating to a post in Career Bracket A 5/A 4 in Directorate-General XII. It gave the following details:

"Nature of duties: principal administrator to assist in:

— Organizing the work of the Committee on Medical Research and Public Health (CRM/CREST) and that of its permanent working parties;

— Interdepartmental liaison to coordinate the Commission's work touching on health;

— A constant comparison of national research and development programmes in this field.

"Moreover, Dr Turner, who was previously assigned to the specialized medical branch for Brussels staff has not adapted herself to the new duties which have been assigned to her in that branch; it therefore appears that it is necessary, both in the interests of the service and in those of D r Turner, to assign to her new duties".

21 On 28 May 1980 the applicant submitted a complaint against that decision under Article 90 of the Staff Regulations and on 29 May 1980 she lodged her second application to the Court and at the same time applied for the adoption of interim measures to suspend the operation of the decision to transfer her.

22 By order of 2 July 1980 ([1980] ECR 2135) the President of the Second Chamber decided that there was no urgency and that the immediate application of the decision was not likely to have irreversible consequences as far as the applicant was concerned and he rejected the application for the adoption of interim measures.

23 The applicant's complaint through official channels was rejected by Commission decision of 2 October 1980.

24 The Commission subsequently published a vacancy notice under reference COM/947/80 creating a post in Career Bracket A 7/A 6 in the medical branch for Brussels staff with a time-limit of 28 November 1980 for the submission of applications. It specified as follows:

"Title of post: Medical Officer

25 T h e Commission has admitted that that vacancy notice was in fact intended t o secure a replacement for the applicant in the medical b r a n c h . It also emerged during the inquiry that the duties previously p r o p o s e d t o D r T u r n e r had been shared after her compulsory transfer by the h e a d of the b r a n c h and a visiting d o c t o r w o r k i n g part-time w h o was also responsible for s o m e of the examinations on recruitment and that t o w a r d s the end of September 1980 the visiting d o c t o r h a d d r a w n up a " p r o p o s a l for a medico-social u n i t " consisting of t w o typed pages. O n the date of the oral p r o c e d u r e that proposal h a d still n o t received the approval of the h e a d of the b r a n c h .

The object of the action

26 The first application (59/80) is for the annulment of the decisions adopted by the Commission to take away the applicant's former duties and give her a new responsibility, for a "medico-social" unit or branch. It became clear during the proceedings that the decision of 8 June 1969 reassigning the applicant to the medical branch for Brussels staff, the object of the action, was not of a nature such as adversely to affect the applicant, since it did not contain any specific details of her duties. It also became clear during the proceedings that in actual fact that decision was not subject to challenge.

27 In support of her application the applicant makes two submissions alleging, first, disregard of the interests of the service, mentioned in Article 7 (1) of the Staff Regulations, and, secondly, a misuse of power as regards her.

31 By way of the claim for damages included in the second application the applicant seeks compensation for the non-material damage which she alleges her change of posting caused her.

Admissibility

32 In its defence to the first application the Commission has raised two objections of inadmissibility.

33 The first of those objections, made against the application in so far as it challenges the decision of 8 June 1979 to reassign the applicant, has lost its purpose because it has been stated that the applicant has no interest in challenging that decision.

34 The second objection of inadmissibility is based on the fact that the applicant no longer has any interest in seeking the annulment of the measures changing her duties in the medical branch because by the decision of 20 May

JUDGMENT OF 9. 7. 1981 — JOINED CASES 59 AND 129/80

39 She contends that it is not for the administration to define, allocate or alter medical duties and emphasizes the freedom and ethical independence of a doctor when carrying out the responsibilities which are his. It is on the basis of that principle that she sets out in greater detail, in her statement of 3 March 1979, her view of medical examinations on recruitment, stressing the freedom of action which must be allowed to the doctor in this matter when deciding on the extent of his investigations and the freedom to make his own judgment when setting forth his assessment. She points out that after the only doctor on the established staff responsible for medical examinations

TURNER ν COMMISSION

on recruitment was ousted from the medical branch, the task of conducting them was assigned to several visiting doctors with the result that such exam­ inations have since lost all consistency.

40 In adopting that line of argument the applicant is confusing the freedom of assessment which must be accorded to doctors, as regards making diagnoses and taking medical decisions where they themselves assume responsibility for any treatment, and the special position of a doctor acting in a consultative or supervisory capacity within an administrative framework.

41 The functions of the medical branches of the Community institutions are determined under the Staff Regulations by the administration in accordance with the needs created either by recruitment, the operation of the various social security schemes, or the examination of staff and facilities for health purposes. The administration has the right to define the nature and the scope of the various medical tasks arising in those different areas, save only that it may not impair the independence of judgment and decision of the doctors whom it employs when they are carrying out the duties assigned to them in that framework as thus defined and when they are required to carry out certain kinds of medical work of a preventive or therapeutic nature on their own responsibility.

45 Therefore, without prejudice to the assessment of the individual situation of the applicant and of the action taken by the officers of the Commission in regard to her, the freedom of the Community administration to give doctors in its medical branch more or less specialized duties for the purpose of carrying out certain specific tasks, such as those entailing medical social work, is not open to challenge.

46 Moreover, the administration cannot be denied the power to define those duties within the framework of general directives issued by the Commission. It follows that the decision adopted on 12 July 1978 by the Commission formed a sufficient basis to allow the administration to adopt all the measures which it considered necessary for the purpose of giving a structure to the two medical branches which it had been decided to set up at that time.

47 Last of all the applicant raises certain issues concerning the actual organ- ization of the medical branch. She considers first that the division of the former medical branch into a branch for decentralized staff and one for Brussels staff is not in accordance with medical requirements. Furthermore she complains that the head of the new branch for Brussels staff was appointed in disregard of seniority because he was a doctor in the same grade as herself, who had entered the service of the Commission after her.

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48 As regards the division of the former medical branch into a branch for decentralized staff and one for Brussels staff, it is sufficient to point out that the applicant has no interest in raising any challenge in that matter because her posting to a relatively large unit, namely the medical branch for Brussels staff, left the administration with ample scope for giving her a post corresponding to her training and experience.

JUDGMENT OF 9. 7. 1981 — JOINED CASES 59 AND 129/80

argues that, even if the administration genuinely wished to develop this part of the medical branch, those duties were outside her own specialized field as a clinician specializing in internal medicine because the duties in question were more closely related to the field of psychology and social work. She points out finally that after she was ousted from the medical branch the duties assigned to her were practically abandoned and that they are no longer even part of the description of the post offered for competition to fill the vacancy created in the medical branch following her removal.

53 As regards the compulsory transfer, the applicant points out that she was appointed against her will to a post completely unrelated to her training and specialized field which, judging by the particulars contained in the vacancy notice, was open to persons who did not have a full medical training. She further complains about the unjustified nature of the statement of reasons on which the decision to transfer her was based in so far as it purports to be based on the fact that the applicant did not "adapt herself to the new duties assigned to her" previously.

54 In view of the preparatory inquiries undertaken by the Court those complaints of the applicant appear to be well founded. In this regard the decisions changing the applicant's duties within the medical branch and the decision to transfer her compulsorily should be examined separately before the complaints common to both measures are dealt with.

The alteration of the applicant's duties within the medical branch

57 However, it appears from the file on the case that in defining the "medico- social" unit the administration has never gone further than using general formulae. Apart from the fact that a number of subsidiary duties was listed, the list of duties submitted to the applicant on 14 March 1979 by the Director-General and reproduced in Dr Siddons's staff note of 28 May contains no specific indication of the scope of the concept of "social medicine". Similarly, in his letter of 13 December 1979 rejecting the applicant's first complaint, the competent Member of the Commission restricts himself to stressing that the new duties "are in the field of preventive and social medicine and involve in particular the examination of individual cases presenting both social and medical problems" and he later adds that the creation of a medico-social unit, "the basic aim of which is to organize and develop genuine social medicine for officials", naturally necessitates new duties on the part of the doctor responsible for this field and consequently requires "an appropriate allocation of duties within the medical branch".

58 Rather than defining the scope of the new duties, the head of the branch insistently asked the applicant to draw up a working plan herself. The applicant cannot be reproached for refusing to cooperate in defining duties the content of which did not seem clear to her and which were for the administrative authority to determine. That point was moreover stressed in the letter of 13 December 1979 mentioned above in which it is stated that measures to define practical duties "are taken by the superior officers in the interests of the service".

The decision to transfer the applicant

62 In view of that refusal by the applicant the administration decided to transfer her compulsorily to a post of principal administrator in Directorate-General XII for Research, Science and Education, involving the duties defined in Notice of Competition No COM/229/80. As was recalled above, the only reason given for that transfer was that the applicant had not "adapted herself" to the new duties assigned to her in the medical branch.

63 It follows from the foregoing that such a statement of reasons amounts to an unjustified slur on the applicant in view of the insubstantial nature of the duties which she had been previously given so that the decision to transfer her is in any event lacking in a correct statement of the grounds on which it is based, contrary to the requirements of the second sentence of the second paragraph of Article 25 of the Staff Regulations.

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64 It should further be observed that, judging by the description of the qualifications required contained in Notice of Competition N o C O M / 229/80, the duties to which the applicant was transferred do not correspond either to the applicant's level of training or to the experience which she had gained after a lengthy period of practice in the Commission's medical branch.

65 It is not in fact denied that the post in question was open to persons with no real medical training or at any rate only an incomplete training in medicine. Even though the post in question might reasonably have been given to a doctor who had submitted his application, it cannot be regarded as proper for the Commission to transfer compulsorily to such a post against her will an official having a specialized medical training and as such eligible for duties different in quality from those envisaged in the notice of competition in question.

69 It should be observed in this regard that, although the applicant was orig- inally recruited to carry out work predominantly scientific in nature, the fact is that for most of her career she has been assigned to duties which were appropriate to her own specialized field, a good part of which involved work related to the practice of medicine. Therefore the Commission was not entitled, for reasons for pure administrative convenience, to assign the applicant to duties which were manifestly inappropriate to her training and previous service record.

70 It follows from all the foregoing considerations that in view of the circum- stances the Commission's conduct towards the applicant was verging upon the arbitrary. The differences of opinion existing between Dr Turner and her superiors, which undoubtedly existed, should have been settled by objective examination and not by means of indirect measures designed to remove the applicant from her duties, with no indication of the true reasons and in disregard of her professional interests founded on an honourable service record in the Community administration.

71 It therefore appears that the submission alleging misuse of powers is well founded as regards the whole of the measures taken against the applicant, that is to say both in regard to the decision of the Director-General for Personnel and Administration of 4 May 1979 assigning the applicant new duties within the medical branch for Brussels staff and the decision of 20 May 1980 transferring her. Those decisions must therefore be annulled.

75 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the defendant has basically failed in its submissions it must be ordered to pay the costs, including those of the application for the adoption of interim measures, which were reserved by the order of the President of the Second Chamber of 3 July 1980.

On those grounds,

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

hereby:

1. Annuls the decision of the Director-General for Personnel and Administration of the Commission of 4 May 1979, assigning the applicant to a different post as part of the reorganization of the medical branch, and the decision of the Commission of 20 May 1980

OPINION OF MRS ROZÈS — JOINED CASES 59 AND 129/80

Mr President, order of 3 March 1981 it was decided to Members of the Court, join Cases 59/80 and 129/80 so that they might be decided in one judgment. The cases before the Court concern Dr Turner, a doctor specializing in internal I should first like to consider the issues illnesses and cardiology, who was of admissibility and then go on to deal assigned to a different post and later with the substance of the problems compulsorily transferred in the medical raised. branch of the Commission of the European Communities at the Brussels headquarters. I — Admissibility

For the summary of the facts giving rise Application 59/80 seeks the annulment to the present applications, the course of the procedure and the conclusions, submissions and arguments of the — First, the letter of 4 May 1979 from parties, I refer to the very comprehensive the Director-General for Personnel Report for the Hearing before the Court. and Administration by which Dr I would only remind the Court that by Turner was asked to take from 10

1 — Translated from the French.