C-125/80

ARNING ν COMMISSION

In Case 125/80

GÜNTHER ARNING, an official of the European Communities residing at 32 Rue de Sandweiler, Itzig, Grand Duchy of Luxembourg, assisted and represented by L. Schiltz of the Luxembourg Bar, 83 Boulevard Grande- Duchesse Charlotte, Luxembourg, with an address for service in Luxem- bourg at the latter's Chambers, applicant, ν

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Denise Sorasio, a member of its Legal Department, acting as Agent, assisted by R. Andersen of the Brussels Bar, 214 Avenue Montjoie, Brussels, with an address for service in Luxembourg at the office of its Legal Adviser, M. Cervino, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for the annulment of the decision of the Commission of 17 July 1979, relieving the applicant of his duties as head of the Industrial Safety Division of the Health and Safety Directorate in the Directorate- General for Employment and Social Affairs, in order to appoint him to the post of adviser within the same directorate,

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

The facts of the case, the course of the 3. Mr Arning was informed of this procedure, the conclusions and the decision orally by his director on 31 July submissions and arguments of the parties 1979. may be summarized as follows :

The new detailed list of posts for the Directorate-General for Employment and Social Affairs was published I — Facts and procedure in Administrative Notices N o 246 of 2 August 1979.

1. On 18 December 1968, with effect from 1 January 1969, then again on By a letter of 25 September 1979, the 9 August 1970 following the annulment Director-General for Personnel and of the first decision making the Administration informed Mr Arning that appointment by the judgment of the "in the context of the measures Court of 10 December 1969 in Case concerning the reorganization of Direc­ 12/69, Wonnerth ν Commission ([1969] torate-General V, for Employment and ECR 577), Mr Arning, who has been an Social Affairs, the Commission, in the official of the Commission since 1960, course of its 524th meeting on 17 July was appointed head of the Industrial 1979" had decided to appoint him as Safety Division in the Industrial Safety adviser in Directorate E, the Health and and Medicine Directorate which is part Safety Directorate. of the Directorate-General for Social Affairs, in Grade A 3.

On 26 September 1979, the Director- General of the Directorate-General for 2. By a decision of 17 July 1979, in the Employment and Social Affairs explained context of the reorganization of the the decision to Mr Arning by referring, Directorate-General for Social Affairs, according to the applicant, to the the Commission decided to appoint Mr structure of the directorate and the need Arning to the post of adviser in the to make better use of his legal Health and Safety Directorate. knowledge.

The proposal for reorganization adopted limits for lead, cadmium, asbestos, by the Commission on 17 July 1979 was etc.) accompanied by a note which, in relation to the Health and Safety Directorate, read as follows: 12. It is considered to be more rational to bring together all the problems "... concerning safety in one department which is to be headed by M r Lemoine. 11. As far as Directorate F is concerned, the development of initiatives in the fields of industrial toxicology and biology, as a result of the implementation of the proposals for action in 'Safety and Health at 14. This reorganization results in the Work', necessitates the creation number of divisions and special of a special administrative unit departments being reduced by one responsible for examining the division. There are possibilities of problems related to the monitoring further rationalization." of the effects of major pollutants on the health of workers (draft directive on major pollutants at present before the Council of Ministers and 5. On 26 October 1979, M r Arning proposal for a directive in the lodged a complaint against the decision process of preparation on exposure of the Commission of 17 July 1979

JUDGMENT OF 29. 10. 1981 — CASE 125/80

under Article 90 (2) of the Staff Regu­ account in compensation for the lations. non-material damage suffered;

On 23 May 1980, Mr Arning brought (5) Order the defendant to pay the this action. costs.

By letter of 21 May 1980, which was 2. The Commission claims that the received by Mr Arning on 4 July 1980, Court should: the Commission had rejected his complaint. (1) Dismiss the application as inadmis­ sible and in any event unfounded; Upon hearing the report of the Judge- Rapporteur and the views of the (2) Order the applicant to pay the costs. Advocate General the Court (Second Chamber) decided to open the oral procedure without any preliminary III — Submissions and argu­ inquiry. However, it decided to ask the m e n t s of t h e p a r t i e s Commission to reply in writing to certain questions before the oral hearing. A — Admissibility

ARNING ν COMMISSION

JUDGMENT OF 29. 10. 1981 — CASE 125/80

was not planned and for which he had decision on the description of the duties not applied. The department of which he and powers attaching to the basic posts was the head was downgraded for this appearing in Annex I A to the Staff purpose to a special department, though Regulations, published in the Official it retained its former title. Notices of the Staff Courier N o 272 of 4 September 1973.

The decision constitutes a disguised disciplinary measure equivalent to a Nor does the Commission see in what reduction in rank, as if there had been way the contested decision adversely incompetence and inefficiency on the affects the applicant. It recalls that in the part of the applicant in the performance judgment in the Kuhner cases the Court of his duties. recognized that in connection with the organization of a department the appointing authority exercises a discre- 2. The Commission does not see what tionary power which is also to be related other justification it could have given, to the duty to give a statement of since the only ground for the change grounds. in the applicant's posting was the departmental reorganization in the Directorate-General for Employment The Commission's decision is not and Social Affairs. arbitrary. It affects the directorate- general in question as a whole. It is a direct result of the Council Resolution of According to the Commission, a fuller 29 June 1978 on an action programme of statement of reasons is less essential the European Communities on safety inasmuch as it is clear from the judgment and health at work (Official Journal in the Kuhner cases that, in the case of a 1978, C 165, p. 1) in which emphasis is measure concerning the organization of put on fixing exposure limits, establishing the department, the duty to give a conditions of hygiene, methods of statement of grounds must be related to analysis and sampling, etc. This technical the marginal nature of the disadvantages approach was confirmed in the detailed which may result from such a measure list of posts published in Administrative for the officials concerned; from the Notices N o 286 of 17 July 1980. material point of view the situation of the applicant has not changed.

account must be taken of the oral expla­ administration shall consider not only nations given to the applicant by his the interests of the service but also the director and director-general, of the fact interests of the official in avoiding any that the Commission's decision of 17 detriment to his career. July 1979 reflects, on an institutional level, the new policies set out by the Council in the action programme Indeed, the Commission did not take adopted on 29 June 1978, and of the fact into account either the applicant's that the director and his various seniority in the department, or his assistants, including the applicant, were abilities and experience and the involved both in preparing and in responsibilities which he held. carrying out that programme. The new detailed list of posts could not, therefore, have surprised the applicant. The aforementioned principle is further breached by the fact that the decision damaged the applicant's career and repu- 3. The applicant replies that the tation as he has shown. Council Resolution of 29 June 1978 did not establish the primacy of the technical field over the legal field and does not necessitate his replacement by an 2. The Commission rejects this engineer. argument and refers to its observations on the second part of the first submission. H e points out that Article 117 of the Treaty and those which follow provide for the harmonization of social The applicant's third submission provisions and that the above-mentioned resolution refers to these articles and also to Article 235 of the Treaty. 1. In connection with this submission the applicant, relying on the judgment of H e emphasizes that in the division of the Court in the Kuhner cases, notes that which he was the head there remain very there was an infringement of the rights close links between the legal and the of the defence, since he was neither technical fields and during his long consulted nor informed in advance of the career in his own country and in the contested decision. Indeed, he knew Community he has acquired wide nothing about it until he was informed of experience of the technical aspects of the it by his director on 31 July 1979. problems in question.

to take decisions, even legally, which which showed that the applicant was cause serious detriment to the persons involved in the preliminary work for the concerned, must allow the latter to make reorganization of his directorate, or that known their point of view, unless there is he was informed of this reorganization a serious reason for not doing so. The before the decision to change his posting contested decision, under which the was adopted. applicant retains all the advantages of his grade and basic post, is not of such a kind as to make it necessary to comply with formal requirements other than those provided by Article 90 of the Staff The Commission replied that in the Regulations for the purpose of protecting interests of efficiency, the initiatives the interests of officials and servants, to contained in the action programme of which is to be added, if need be, judicial the European Communities on safety review by the Court." and health at work were divided among the existing units, in the course of several meetings of the Industrial Medicine, The formal requirements were met. Toxicology and Industrial Safety depart- Furthermore, the directorate to which ments. According to the Commission, it the applicant belongs took part in the cannot, therefore, be alleged that Mr preparation of the Council Resolution of Arning was not aware of these 29 June 1978 and its implementation was assignments which were made over a examined with Mr Arning among others. period of several months. The announcement by the director and by the director-general of the change in the detailed list of posts only confirmed a situation which had been under C — Damages preparation for a long time.

The Commission was assisted at the hearing by Mr Recht, Director and the applicant's superior at the material time. Questions were put to him by the Court The former coal and steel department, and the applicant on the reasons for the headed by an engineer, dealt with reorganization of his directorate and on technical research in the coal and steel the possible connection between these sectors, and in the context of the reasons and the change in Mr Arning's programmes of the European Coal and posting, and also on the extent to which Steel Community. The Mines Safety and the latter was informed of the reorganiz- Health Commission, in view of the ation. In particular, Mr Recht explained nature of its work, should be under the that, even in 1976 when he took up his control of a mining engineer. As to the duties, the number of divisions and part of the action programme relating to special departments seemed to him to be safety at work which is assigned to the excessive. Mr Arning's two assistants had Industrial Safety Division, this essentially been appointed directly to the Secretariat concerns the technical aspects of of the Consultative Committee and as a prevention. result he was virtually alone with one secretary. Rationalization became absol- utely essential as a result of the new action programme, because in spite of the shortage of staff it was necessary to carry out the technical and scientific For all these reasons, the Commission tasks set out in that programme. chose to place a mining engineer at the head of this unit. It believed that Mr Arning's training would enable him to be of greater service as an adviser to the entire directorate. For that reason, it was decided to combine Mr Arning's division with the special department for safety matters in the coal and steel industries and later with the .Mines Safety and Health Commission. Since the action pro- 3. The Court also asked the gramme was the work of the directorate Commission what was the training of the as a whole, Mr Arning ought to have heads of the other departments in the foreseen this result. Health and Safety Directorate. The Commission replied that the heads of departments in that directorate were: a doctor, a chemist, an engineer, an expert in protection against radioactivity and The Advocate General delivered her lawyer, and a mining engineer. opinion on 8 October 1981.

ARNING ν COMMISSION

4 It is also apparent from the file that the decision of 17 July 1979 was made known to the applicant for the first time during an interview with his director on 31 July. On 2 August, the new detailed list of posts resulting from the first phase of the reorganization was published in Administrative Notices, a bulletin sent out to all staff, and on 26 September the applicant, who had taken up his new duties on the third of the month, had an interview with his director-general. However, it was not until 1 October that the applicant received a communication dated 25 September from the Director-General for Personnel and Administration, which set out the new post which had been given to him by the decision of 17 July, but which merely stated that the said decision had been taken "in the context of measures for the reorganization of Directorate-General V".

5 In these circumstances, the applicant makes four submissions, of which three relate to the infringement by the Commission of essential procedural requirements, whilst the fourth concerns the content of the decision.

Late communication of the decision

6 First, the applicant alleges that the Commisison has infringed the first sentence of the second paragraph of Article 25 of the Staff Regulations, which provides that any decision relating to a specific individual which is taken under the Staff Regulations shall at once be communicated in writing to the official concerned.

7 In this regard, the Commision submits that the decision of 17 July 1979 was a reorganization measure involving all the officials in the directorate-general. As a result, the collective communication by means of the publication of the new detailed list of posts on 2 August 1979 was already enough. In view of the publication of this list, as well as other information which was at the applicant's disposal before he received the written communication of 25 September 1979, the latter cannot, in the Commission's view, be considered to be late.

1 1 The Commission, on the other hand, refers to the judgment of the Court of 28 May 1980 (Joined Cases 33 and 75/79 Kuhner v Commission [1979] ECR 1677) and submits that the grounds given were sufficient, taking account particularly of the wide discretion which it enjoys in relation to its internal organization and of the fact that the decision reflects on an institutional level the new policies set out by the Council in the action programme. The applicant was involved in both the preparation and the implementation of that programme and therefore the new detailed list of posts could not have come as a surprise to him. Furthermore the Commission refers to the interviews which the applicant had with his director and director-general before he received the communication.

ARNING ν COMMISSION

12 As the Court has already stated in the aforementioned judgment, it is correct that the duty to give a statement of the grounds on which a measure concerning organization of the department is based must be related to the discretionary power which the appointing authority exercises in this connection and also to the marginal nature of the disadvantages which result for the official concerned from a re-posting which does not affect his grade or his material situation. However, these considerations are not sufficient to justify a statement of grounds which merely refers to the reorganization of the directorate-general concerned.

13 As the Court also stated in the above-mentioned judgment, in order to decide whether the requirement laid down in Article 25 has been met, it is advisable to take into consideration not only the document giving notice of that decision but also the circumstances in which it was taken and brought to the knowledge of the person concerned. In this regard, it is necessary to investigate in particular whether the applicant was already in possession of the information on which the Commission alleges that the decision was based.

15 The applicant further submits that there has been a breach of the rights of the defence, because he was neither consulted nor informed in advance of the contested decision.

16 The Commission replies to this submission by referring once againt to the above-mentioned judgment of 28 May 1980, in which it was stated that "this case cannot be said to concern the rights of the defence but only a general principle of good administration to the effect that an administration which has to take decisions, even legally, which cause serious detriment to the persons concerned, must allow the latter to make known their point of view, unless there is a serious reason for not doing so". The Commission maintains that the transfer in question cannot be assimilated to measures of this nature.

Costs

20 Although the applicant has failed to establish his case, nevertheless in relation to any order as to costs, the aforementioned considerations concerning good administrative practice must be taken into account. Indeed, it appears that the action arose largely as a result of the procedure adopted by the Commission and by the lack of consideration for the applicant which that procedure displayed. It should be pointed out that, although the applicant was involved in the preparatory work on the reorganization, he did not have an opportunity to make known his point of view on the particular measure which directly affected him, that, in breach of the Staff Regulations, the administration delayed giving the applicant a communication in writing until he had already been performing his new duties for almost a month, and that the only reference in the communication to the grounds on which the measure was based was that which was made concerning the general reor­ ganization of all the departments in the directorate-general. In these circum­ stances, the applicant, who made his application before the judgment from which the Commission has taken most of its arguments, should not be penalized for having brought the matter before the Court in order to obtain a review of the effect of this lack of consideration on the legality of the decision.

21 It is therefore fitting to apply the second subparagraph of Article 69 (3) of the Rules of Procedure, which provides that the Court may order even a successful party to pay costs in proceedings which have arisen as a result of its own conduct.

Due Chloros Grévisse

Delivered in open court in Luxembourg on 29 October 1981.

J. A. Pompe O. Due Deputy Registrar President of the Second Chamber

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 8 OCTOBER 1981 1

Mr President, context of the reorganization of a Members of the Court, department, have often In recent times been the subject of applications to the Court by the officials affected. Perhaps Changes of posting and transfers, this is evidence of a malaise of which this whether or not they take place in the case is a further example.

1 — Translated from the French.