C-60/80

JUDGMENT OF 21. 5. 1981 — CASE 60/80

In Case 60/80

JACOBUS KINDERMANN, an official of the Commission of the European Communities, of 60 Avenue de ľEmeraude, 1040 Brussels, assisted and represented by Georges Vandersanden of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Nico Edon, 2 Rue Goethe,

applicant,

v

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

KINDERMANN v COMMISSION

JUDGMENT

Facts and Issues

The facts and the arguments of the formance of administrative tasks, parties during the course of the written under the authority of Division IX- procedure may be summarized as D-3, the General Matters Division, follows : acting, in regard to such tasks, on the orders of and by way of delegation by the Director of Directorate IX-D.

JUDGMENT OF 21. 5. 1981 — CASE 60/80

circular referred to the Commission's four months the applicant lodged an concern "as far as is at all possible and in appeal at the Court Registry on 21 the interests of the service" to assign its February 1980. staff who "after spending a considerable time performing the same duties in the same departments, to other duties The written procedure followed the corresponding to their status under the normal course. Staff Regulations" and thus "to enrich their experience". On hearing the report of the Judge- Rapporteur and the views of the In a note dated 29 August 1979 sent to Advocate General the Court (First Mr Ciancio, Mr Schneider, Secretary- Chamber) decided to open the oral General of the Administrative Com- procedure without any preparatory mission and Head of the Social Security inquiry. for Migrant Workers Division (DG V-D-3) under which the applicant came as regards the assessment of his work, had expressed his concern about the II — C o n c l u s i o n s of t h e p a r t i e s change of assignment of the translators "seconded" to his department and about the effect on the functioning of the department which the change would The applicant claims that the Court have. H e asked Mr Ciancio to reverse should his decision and if that were not possible at least to grant him "sufficient time to — Recognize the admissibility of his obtain other staff and to train them for action and annul the decision taken the particularly thankless duties which by Mr Tugendhat on 4 October 1979 they will have to perform". to transfer the applicant from DG IX-D-3 to DG IX-D-8 as from 1 On 17 September 1979 Mr Kindermann January 1980; sent Mr Ciancio a note challenging for various reasons the decision of 22 August — Order the defendant to pay the costs. 1979. In the absence of an answer from the administration the applicant lodged a complaint against the decision on 3 October 1979. The defendant contends that the Court should

The defendant alleges that the contested decision did not, as a matter of organ- ization, alter the applicant's posting or a In its rejoinder the Commission states fortiori his status under the Staff Regu- that the contested decision cannot lations. The decision, for practical constitute a transfer since there is no purposes, means nothing more than vacant post as is shown by the fact that putting an end to his being placed at the applicant was reassigned along with the disposal of the Administrative his post. Further, the alteration in the Commission and retransferring him administrative structure of the Trans- along with his post from Division lation Department which took place in IX-D-3 to Division IX-D-8. Similarly, the meantime required from a formal the nature and level of the translation point of view the decision to be taken by duties carried out by the applicant have the member of the Commission not been changed. Accordingly, the responsible for staff matters. Finally, decision is a simple measure of internal the "circumstances" surrounding the organization not capable of having decision by virtue of which the applicant adverse effect and thus not having the ceased to be placed at the disposal of the character of a measure which can be Administrative Commission are not such annulled under Article 91 of the Staff as to make a measure relating to the Regulations. internal organization of the department in question a measure adversely affecting the applicant.

— H e is in Career Bracket L/A 5— translation staff working in Directorate- L/A 4 and mobility concerns General IX-D-8. Finally, he challenges primarily officials in Career Brackets the Commission's opinion concerning his A 7—A 6 and B 5—B 4; interest in so far as his prospects of promotion acquired in the Administrative Commission may be jeopardized if he is — There was no invitation to apply for transferred. transfers making it possible for the mobility contemplated to be achieved on a voluntary rather than on a In addition, the procedural provisions compulsory basis; governing transfers were not complied with. The decision was not posted in the premises of the institution or published — The applicant had already been the in the Monthly Staff Bulletin (third subject of previous mobility measures paragraph of Article 25 of the Staff which he had accepted voluntarily: Regulations): nor was there a vacant this shows that there was no reason post (Article 29 (1)). to make him a primary target for a decision concerned with mobility; The procedure for secondment was disregarded since the applicant was not — The department from which the seconded within the meaning of Article applicant comes is specialized and his 37 of the Staff Regulations. H e has "removal" raises serious problems; found himself in a position in every moreover, the applicant needs time to respect comparable to that of the "legal settle down to his new duties in order revisers" put at the disposal of the Legal to ensure a normal output. Department who, as regards the special instructions relating to their work, came under the permanent and exclusive authority of the Director-General of that In the alternative the applicant maintains department. Accordingly, the procedure that if the "removal" had to be regarded leading in the present case to the as a transfer or secondment, it would be decision to transfer the applicant should necessary to concede that the requisite have been set in motion, if necessary, on conditions for such measures had not the initiative of Directorate-General V been satisfied in the present case and that under which he came in regard to the the Commission was guilty of misusing performance of his daily duties and not, its powers. as was the case, on that of Directorate- General IX.

taken in respect of the applicant is to Further the applicant has not established lend an apparent air of objectivity to a that the decision in question was taken in disguised disciplinary decision taken disregard of the interests of the service. against another person. The note from Mr Schneider is not capable of reinforcing that argument since it recognizes that "the question of the advisability of altering the assignment of translators and revisers is . . . a matter for the appreciation" of Mr Ciancio, The Commission replies that the measure Director of Directorate IX-D. In taken in regard to the applicant and addition, the interests of the service certain of his colleagues is in no way an require, as is apparent from the Practical application of the provisions on staff Guide for Translators published in mobility adopted by the Commission on October 1975 by Directorate-General 14 November 1976, since, as the IX, that translators do not spend the applicant himself points out, they whole of their career with the same concerned primarily officials in Career employing department.

Article 37 of the Staff Regulations. Accordingly, there was no cause to No measure involving a transfer is at follow the procedure referred to in issue in the present case since there was Article 38. It is irrelevant for the no vacant post and therefore it was not applicant to liken the position of trans- necessary to follow the procedure lators put at the disposal of the required in the event of transfer. That Administrative Commission to that of follows from the decision of the Court in lawyer-linguists who have no connexion Case 61/70 (Vistosi [1971] ECR 535) in with Directorate IX-D and are assigned which it was held that "where the post is permanently to the Legal Department, transferred without any substantial which governs their administrative change in the duties attaching to it, it

grade. Translation Department working at the

Administrative Commission and the Staff Regulations in that his transfer, in decision at issue. If the proper authority the circumstances in which it took place, had thought it ought to reassign an has interrupted his career and discrimi- official in order to preserve good nated against him in relation to his working relations it would have had the colleagues who have worked for the power to do so and such action would in same number of years in specialized no way constitute a disguised disciplinary departments. sanction, without also having to reassign other officials who had no connexion with the incident. The applicant also claims that there has been a breach of the duty to have regard to the welfare of officers, which is The applicant, in his reply, requests that incumbent on every administration, since Mr Schneider be summoned as a witness the change in his assignment has in order to answer the question whether disturbed his career, and the Commission the departure of the applicant and other has led him to believe that the change in translators has not caused problems for his assignment was decided for reasons the functioning of his department, which of mobility following the measures taken would show whether the transfer had in 1976. been made in accordance with Article 7 (1) of the Staff Regulations, that is to say in the sole interest of the service. The applicant contends that he was absent from the meeting called on 22 August 1979 by Mr Ciancio during He further observes that although it is which the translation staff of the true that it is desirable to facilitate staff Administrative Commission was in- mobility as far as possible, it is still more formed of the measures taken with necessary to have regard to the specific nature and effectiveness of the tasks of a regard to them. There was, therefore, translator. In the Practical Guide for disregard of the rights of the defence. Translators the accent is placed on specialization, which is an indispensable factor for the quality of the translation As regards misuse of powers, the (example p. 34) : applicant maintains that for removals carried out as they have been since the incident between two women translators "For 16 years the various language assigned to the Administrative Com- groups of the Translation Section of the mission not to be contrary to the interest Administrative Commission have worked of the service it would be necessary that side by side simultaneously on the same they should affect only the persons subjects in close and immediate collab- directly concerned to the exclusion of oration with the experts of Directorate every other witness or other person. General V (Social Matters). The prob- lems of documentation and terminology are as a result rendered much easier. The The Commission considers that the translations gain in accuracy and the application to hear Mr Schneider should work in effectiveness and quality". be dismissed. It is obvious that any change in the composition of an administrative unit is likely to cause The applicant alleges that there has been temporary difficulties in the functioning an infringement of Article 5 (3) of the of the department.

The Practical Guide for Translators of translators who have stayed with the makes it clear that “the mobility of trans- Administrative Commission does not lators and the possibility of integration reveal any discrimination. within groups must be ensured as far as possible”. The accent is therefore not put solely upon specialization. Moreover the organization plan of the Dutch Translation Division shows that the so- The issue raised concerning a breach of called “specialized” groups in that the duty to have regard to the welfare of division are required to deal with very officers is also submitted for the first diverse matters since the same group is time and should, like the previous one, required to deal with social matters, be disregarded. In any event there is no administration and information whereas foundation for it. It was in no way stated another deals with development, regional at the meeting called on 22 August 1979 policy and transport. that the measures relating to the applicant and certain of his colleagues were adopted in the context of measures taken in the interests of mobility. The There is no reason to think that the letter sent on 22 August 1979 to Mr promotion prospects of the applicant Kindermann moreover contains no may be adversely affected by the fact mention of those measures. that he is now working in the Dutch Translation Division, since the pro- motion procedure for officials belonging to the Language Department is prepared by a single Promotion Committee which Like the two previous issues, that based compares the merits of all the officials on disregard of the rights of the defence whether or not they are placed at the must also be disregarded. As a matter of disposal of a particular branch. principle the fact that the administration does not hear an official prior to adopting a decision likely to have a serious effect upon his interests cannot be looked upon as disregard of the rights The applicant is confusing “duties” with of the defence. As the case-law of the “post”. There has been no change in Court reveals, post as that term is defined in Annex I A to the Staff Regulations since he still holds a post of Principal Translator corresponding to his grade. “This case cannot be said to concern ‘the rights of the defence’ but only a general principle of good administration” As regards the breach of the principle (Joined Cases 33 and 75/79, paragraph of non-discrimination the Commission 25 at p. 1698). stresses that by virtue of Article 42 (2) of the Rules of Procedure the submission of this fresh issue cannot be allowed. Alter- natively it contends that since the duties at present entrusted to the applicant A fortiori that is so where what is at issue correspond to his grade and post and is, as in the present case, a measure since they are in no way such as to affect terminating the placing of the applicant adversely his promotion prospects, the at the disposal of another department comparison between his position and that and there is nothing to show that that

3 On 1 January 1973 the translation departments of the Commission were reorganized. The various translation sections comprising the former

KINDERMANN v COMMISSION

Translation, General Matters, Division IX-D-3, which itself was elevated to the rank of a Directorate (IX-D Translation, Documentation, Reproduction and Library) were transformed into six divisions (IX-D-4 to 9), and the translation section to which Mr Kindermann belonged thus became the Dutch Language Translation Division IX-D-8.

4 On 22 August 1979 the translators assigned to the Administrative Commission were summoned to a meeting by Mr Ciancio, the Director of Directorate IX-D, who informed them of the decision of the Commission to send those "seconded" translators, who had worked for ten years in a particular department, back to the central Language Divisions. He told the meeting that the principle which he had explained would apply first, inter alia, to Mr Kindermann who was on leave on the day of that meeting and therefore did not take part in it, and that in due course a personal letter would be sent to each translator in the Administrative Commission.

5 The letter sent to Mr Kindermann and dated 22 August 1979 reached him on 4 September 1979. It stressed the value which the Commission attached to the "possibility for its staff, so far as is at all possible and having regard to the interests of the service, to be assigned, after spending a considerable time performing the same duties in the same departments, to other duties corresponding to their status under the Staff Regulations and thus to enrich their experience." The letter continued in the following words: "I should therefore be grateful if after contacting your Mead of Division, Mr Pignot, you would present yourself on 2 January 1980 to Mr Dallinga, the Head of the Dutch Translation Division, who will inform you of your new duties."

9 The action must therefore be held to be admissible.

Substance

10 During the oral procedure the applicant put forward ultimately only two submissions against the contested decision, the first alleging infringement of Article 7 (1) of the Staff Regulations in so far as on the one hand the procedure for which that provision provides in the case of transfer was not complied with and on the other that the decision in question was not in the interests of the service. The second submission alleges that there has been a misuse of powers.

1 1 It is apparent from a consideration of those submissions and the arguments of the defence that the parties disagree as to the description of the measure in question. The applicant takes the view that he was transferred within the meaning of Article 7 of the Staff Regulations whereas according to the Commission what was done was, in formal terms, to reassign the applicant along with his post and, in practical terms, to terminate a measure placing him at the disposal of the Administrative Commission.

KINDERMANN v COMMISSION

12 It is as well to observe from the outset that under the system of the Staff Regulations there is a transfer properly so called only where an official is transferred to fill a vacant post. It follows that every transfer properly so called is subject to the formalities laid down in Articles 4 and 29 of the Staff Regulations. On the other hand those formalities do not apply in the case of reassignment of an official, as this does not give rise to a vacancy.

17 That argument must be rejected since the case-law of the Court has recognized that the institutions of the Community have a wide discretion in

JUDGMENT OF 21. 5. 1981 — CASE 60/80

the organization of their departments in accordance with the tasks entrusted to them and in the assignment, with those tasks in view, of the staff placed at their disposal. It has not been established that, in taking the decision in question, the Commission has exceeded that power.

18 For the same reason the alternative arguments put forward by the applicant in relation to the negative effects of his departure on the function of the Translation Department of the Administrative Commission and the fact that he was not aware of the need to increase the translation's staff working for Division IX-D-8 must also be rejected.

19 The first submission must therefore be rejected.

20 The second submission must be rejected on the ground that the Commission's decision to reassign the applicant has been shown above to be in conformity with the interests of the service so that it cannot give rise to a misuse of powers.

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

hereby:

1. Dismissed the application;

2. Orders the Commission to bear its own costs and one half of the applicant's costs.

Koopmans O'Keeffe Bosco

Delivered in open court in Luxembourg on 21 May 1981.