C-161/80

T H E COURT (Second Chamber)

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

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT OF 24. 2. 1981 — JOINED CASES 161 AND 162/80

JUDGMENT

The facts of the case, the course of the regard to any special political and/or procedure, the conclusions and the linguistic factors. submissions and arguments of the parties may be summarized as follows: The system applies in principle to officials in Categories A, B and C; each year such officials are informed of assignments which are available in the I — Facts information offices and are invited to apply for them under the rotation system. Maria Grazia Carbognani, who entered the service of the High Authority of the ECSC on 17 September 1962, and The list of officials to be included in the Marisa Coda Zabetta, who entered the rotation system is drawn up each year by service of the Commission of the EEC a committee comprising the Directors- on 1 September 1965, were employed, General of the Directorate-General for the former in Luxembourg and the latter Information, of the Spokesman's Group, in Brussels, until 1 and 2 September 1968 of the Directorate-General for External respectively, when they were assigned to Relations and of the Directorate-General the Commission's Information Office in for Personnel and Administration; the Rome as secretaries/shorthand-typists. definitive list of assignments is determined by the Commission on the joint proposal of its members responsible for personnel and information matters. On 24 November 1976 the Commission decided to set up a rotation system for the information offices which it had The normal duration of the initial established in the various Member States. assignment to an information office is fixed in principle at three years, a period which may be extended in the interests That rotation system is intended to of the service on a case by case basis for encourage mobility by organizing a renewable period of one year, with a exchanges of officials between the offices limit of three years. and headquarters (Brussels) and its purpose is to ensure, in view of the special functions of the Information For officials in Categories B and C the Service, that the various offices have staff Commission has established more flexible who are specialized in the dissemination rules for implementing the system, which of information, competent and experi- allow problems relating to the service enced, and able to maintain continuity in and questions of a personal nature which the distribution of information and may arise for such officials to be taken preserve established contacts, with due into account where appropriate.

In application of that system the rotation The two complaints were expressly committee included Miss Carbognani rejected by decisions of the Commission and Miss Coda Zabetta on 2 October dated 22 July 1980. 1979 on the staff rotation list proposed for 1980. On 31 July 1980 the Head of the Management and Organization Depart- On 28 November 1979 the Commission ment informed Miss Carbognani and decided that they should be included in Miss Coda Zabetta by telex message that the final rotation list to be put into effect their transfer to Brussels had been in 1980. confirmed that same day by the appointing authority and that it would take effect on 1 January 1981. The Director-General for Personnel and Administration informed Miss Carbo- gnani and Miss Coda Zabetta of the fact by letters dated 17 December 1979. In the letters he advised them that they II — W r i t t e n p r o c e d u r e should make preparations for their return to headquarters (Brussels), which was expected to take place no later than September 1980, and that applications were to be invited immediately to fill On 11 July 1980 Maria Grazia their positions in the Rome office. Carbognani and Marisa Coda Zabetta each brought an action against the implied decision rejecting their com- plaints lodged on 12 March 1980. On 25 January 1980 the Commission published in the Staff Courier notices inviting applications for vacant posts under the rotation system concerning, in On the same day, 11 July 1980, each of particular, three posts in Category C for the two applicants submitted an Italian-speaking secretaries/shorthand- application for the adoption of interim typists for the Information Office in measures under Article 83 of the Rules Rome. of Procedure, seeking to delay the implementation of the decisions notified to them on 17 December 1979 providing In letters dated 6 March 1980, lodged at for their transfer from Rome to Brussels. the Commission's Secretariat-General on 12 March, the applicants submitted complaints under Article 90 (2) of the By an order dated 31 July 1980 the Staff Regulations against the decisions of Judge acting as President of the Court which they had been notified on decided that it was unnecessary to 17 December 1979. In support of their adjudicate upon the applications for complaints they relied on personal or interim measures, the latter having lost family grounds and claimed that the their purpose as a result of the decisions to transfer them were contrary declaration made by the Commission in to Articles 4 and 7 of the Staff Regu- the course of the proceedings that it did lations and that the rotation system was not intend to take any action on the not applicable retroactively to officials proposal contained in the letters of who had already been assigned to the 17 December 1979 until it had adopted Rome office prior to the introduction of formal decisions re-assigning the ap- the system. plicants. Costs were reserved.

Following the Commission's decision of The Commission contends that the Court 31 July 1980, each applicant lodged a should: second application on 5 December 1980 for the adoption of interim measures in (a) Dismiss the applications as un- order to delay implementation of the founded; decision to transfer them to Brussels on 1 January 1981. As the Commission stated (b) Order the applicants to pay the costs. in its observations that it was prepared to delay implementation of the decision re- assigning the applicants until 1 April IV — S u b m i s s i o n s and a r g u m e n t s 1981, they withdrew their second of the p a r t i e s in the c o u r s e application for the adoption of interim of the w r i t t e n p r o c e d u r e measures on 17 December 1980. By an order dated 15 January 1981 the Judge acting as President of the Court decided A — Admissibility to remove the applications for the adoption of interim measures from the register, and reserved costs. The Commission submits that the applications are directed against By an order dated 18 December 1980 the measures which were taken in Court (Second Chamber) decided to join preparation for a decision and which are the two cases for the purposes of the oral therefore not capable of adversely procedure and the judgment. affecting the applicants. The formal decision to re-assign the applicants was The written procedure followed the not taken until 31 July 1980, after the normal course. date on which the applications were lodged. Strict observance of the rules On hearing the report of the Judge- would require the applicants to have Rapporteur and the opinion of the submitted first a complaint and then, Advocate General, the Court (Second after an express or implied decision Chamber) decided to open the oral rejecting that complaint, an application procedure without any preparatory to the Court. In any event, as the inquiry. Commission dealt with all aspects of the problem in its reply of 22 July 1980 to the first complaint, the reply to a new I I I — C o n c l u s i o n s of the p a r t i e s complaint would certainly have been to the same effect. In the circumstances it leaves to the Court a decision as to the The applicants both claim that the Court admissibility of the applications. should: The applicants submit that the (a) Declare the applications admissible applications are admissible within the and well founded; terms of Article 91 (4) of the Staff Regu- (b) Annul the decisions notified to them lations and maintain that this has not on 17 December 1979 whereby the been seriously contested by the Commission declared their posts at Commission. the Information Office in Rome vacant and ordered the applicants to B — Substance be transferred to headquarters in Brussels; The applicants claim that the application (c) Order the defendant to pay the costs. in their case of the rotation system is

1. Non-compliance with the Staff Regu- lations The acceptance by an official of a temporary post implies that the alteration of his place of residence and work every three years is quite compatible with his The applicants submit that the rotation personal and family situation. It is quite system created by the Commission's otherwise in the case of officials who decision of 24 November 1976 cannot accepted their assignment to an infor- lawfully be applied retroactively to mation office without the knowledge officials who were assigned by way of that the assignment was purely transfer to an information office prior to temporary: the transfer of such an 24 November 1976. official is liable to disrupt his social and family network completely; in any case the official's state of health may not be compatible with an abrupt change of residence. (a) The rotation system, which necessitates the transfer of officials from one place of work to another, presents wholly different characteristics depend- ing on whether the officials in question (b) The legal basis of the two situations were assigned to an information office is different. before or after 24 November 1976: officials transferred after that date are fully aware of the fact that their assignment to an office is only The decision to transfer an official, temporary; in applying for such an taken with his consent, might have its assignment they accepted by implication legal basis in Articles 4 and 7 of the Staff the temporary nature thereof and gave Regulations, which provide for transfer prior consent to any subsequent transfer to a vacant post and transfer on which became necessary under the application. Both cases presuppose the provisions of the system at the end of a official's prior consent. Transfer by particular period. By contrast officials mutual consent is lawful provided that it assigned to an information office before occurs in the "interest of the service", a 24 November 1976 did not consent, concept which has been described and either by implication or explicitly, to defined in the case-law of the Court. their transfer at a future date to a different place or work. When made in the context of the rotation system the transfer to a different place of work of officials who were When the administration decides to assigned to an information office after 24 transfer to another place of work an November 1976 is a transfer by mutual

consent; such a decision is accordingly against the wishes of the official may, lawful provided that it is taken in the and in this case does, adversely affect the interest of the service. In this connexion official's living and working conditions. it may be conceded that the establish- According to the Commission, even the ment of a rotation system may be most insignificant interest of the service regarded by the administration as being legitimizes the transfer of officials, even in the interests of the service; hence the though it gravely impairs their living and rotation system, when properly applied, working conditions; thus, it asserts that that is to say, without retroactive effect, the interests of the service must always is lawful according to Community law. take precedence over the conflicting interests of the official. That view is extreme and unacceptable : the interest of the service which is being relied upon ought to be one of reasonable importance. It is for the Court to Where officials who were assigned to an ascertain whether the interest of the information office prior to 24 November service which persuades the Commission 1976 are transferred to a different place to transfer a Category C official to a of work, the legal foundation for such a different country is reasonably import- decision is supplied by the first subpar- ant, or insufficient. agraph of Article 7 (1) of the Staff Regu- lations which states that "the appointing authority shall, acting solely in the interest of the service . . . assign each official by appointment or transfer to a post". However, it is not possible to accept the theory that the existence of an The interest of the service referred to in interest of the service is not merely an Article 7 of the Staff Regulations is essential requirement for the legality of a therefore an essential requirement, but decision to transfer an official but not sufficient in itself, and it cannot suffices per se to justify such a decision, establish the lawfulness of the disputed even if the transfer was made against the transfers. Article 7 cannot, therefore, wishes of the official. Such an interpret- provide the legal foundation for the ation is contradicted by the actual decisions in question: it does not wording of the provision in question and authorize the administration to transfer by the fact that it regulates appointments officials to another place of work against and transfers in the same fashion; since a their will, thereby impairing their living person cannot be appointed as an official and working conditions. without his consent, it follows that the interest of the service, although an essential requirement, is not sufficient in itself to legitimize an appointment or, as a result, a transfer.

official's consent, and where that is not Clearly, the transfer of officials in the the case, in the absence of a rule on the context of the rotation system has the basis of which the lawfulness or characteristics neither of a transfer as a otherwise of the decision may be disciplinary measure nor of a "re- established, the legal foundation for the posting". When a transfer is made under transfer must be sought in other rules of the rotation system, therefore, none of Community law and, in particular, in those circumstances are present which, general legal principles. according to Community law, justify transferring the official against his wishes. Hence the transfer of officials under the rotation system is lawful only General legal principles establish that if the official to be transferred has given transfer without consent is lawful in two his prior consent. Retroactive application special instances, namely, transfer as a of the rotation system, involving the disciplinary measure and "re-posting". transfer to a different place of work of officials appointed to an information office prior to 24 November 1976, the date on which the system was introduced, must be considered Transfer as a disciplinary measure, the unlawful: such officials did not consent, only case of transfer without the either by implication or expressly, to official's consent which is provided for in their subsequent transfer. That is the Staff Regulations, presupposes a precisely the position of the two failure on the part of the official to carry applicants. out a specific obligation imposed on him by the Staff Regulations.

the Council is given exclusive power to two offices in question will remain lay down the Staff Regulations of precisely the same as before; all that will Officials; the Council has made no change will be the person who carries partial delegation of legislative power to out duties which remain absolutely the Commission where officials' legal unchanged. The rotation system may be status is concerned. Hence the justified in the case of high-ranking Commission cannot create legal rules in officials but hardly in the case of such matters or amend the existing rules. Category C officials, whose duties are purely clerical, who do not bear responsibility for them and who are not called upon to exercise any discretion. (g) The Commission cannot infer a To give work of this kind to one power to transfer officials to a different individual rather than to another cannot place of work against their wishes from bring about any appreciable change in the fact that the legal relationship the existing situation. between an official and the institution is governed by the Staff Regulations, and not by contract. The non-contractual nature of that relationship merely (j) According to the statements made indicates that it is governed exclusively by the Commission's Agent at the by the Staff Regulations; it. must hearing on the application for interim therefore be ascertained whether those measures on 31 July 1980, at noon, the regulations confer on the Commission interests of the service did not require, at the power to which it lays claim. In fact, that moment, that the applicants be the Staff Regulations contain no transferred; but at 7.20 p.m. on that very provision whatsoever to that effect. same day, the applicants were informed that the interests of the service required their transfer to Brussels and that all the necessary details had been decided upon. That confirms that the decisions (h) Nor can the power to effect any impugned were taken without any transfer it considers appropriate be consideration of the interests of the derived from the Commission's freedom, service, and therefore in a manner which which is not contested, to organize its is unlawful with regard to Article 7 of operations in the best interests of the the Staff Regulations. service. Even in the Commission's own view the rotation system in question does not entail any reorganization of its services; it provides merely for alter- The Commission contests the applicant's nating different officials in identical arguments based on an alleged failure to posts. comply with the Staff Regulations.

(b) The applicants' hypotheses reveal basis for transfer to a different place of an ignorance of the fundamental work when decided upon with the principles governing conditions of consent of the official: that is not the employment in the public service. case here. The distinction between Because the relationship between the "transfer on application" and "transfer administration and its officials is a non- to a vacant post" is, in any case, the contractual one, the former may at any result of an inadequate understanding of time amend the rules which apply to its the Staff Regulations. officials in any manner it considers appropriate to the interests of the service, provided only that amendments may not be applied retroactively; similarly, the administration's power to determine its The analysis of the basis for transfer to a own organization enables it to effect any different place of work of officials transfer or change of posting it considers posted to an information office prior necessary, subject only to the condition to 24 November 1976 is equally that it must not be contrary to the unconvincing. A transfer which is interests of the service and must not decided upon without the consent of the adversely affect the rights of officials official in no way offends against Article under the Staff Regulations. Thus the 7 (1) of the Staff Regulations so far as its question whether the applicants foundation in law is concerned. Nor is it consented or not to the application in contrary to Article 117 of the EEC their case of the rotation system is Treaty: the mere fact that an official irrelevant. does not agree to a transfer in no way implies that it gravely impairs the official's living conditions and so contravenes the Treaty.

As the official's consent is not, as a general rule, required in the event of As to the alleged prejudice, the transfer it should be noted that there is applicants' arguments are based on a nothing in the text of the decision of 24 misconception of the principles govern- November 1976 which runs counter to ing the operation of the rotation system: that rule. under the scheme officials posted to an information office are certainly not obliged, every three years, to transfer their residence and that of their family abroad; they remain, in principle, at the (d) In denying that the Commission office to which they were assigned for a has any legislative power relating to period of three years, which may be officials' legal status, the applicants extended to six years at the most, and at ignore the existence of numerous the end of that period they are in "general implementing provisions" which principle re-assigned to a department at have been adopted by the Commission headquarters or, in some cases, to concerning various provisions of the another information office. As a general Staff Regulations. The Commission's rule, officials are re-assigned to the power to change the posting of an central administration and are then no official, whether the measure is longer subject to measures taken under individual or forms part of a pre-existing the rotation system. There can therefore scheme, or is taken as part of a general be no question in the applicants' case of reorganization, has been recognized by their having to alter their place of the Court. residence every three years. The applicants are misled in claiming that the decisions which they contest will wholly disrupt their family and social The Court has also recognized in very relationships: they were recruited either general terms that the administration is in Luxembourg or in Brussels before entitled to alter the organization of their assignment to the Information individual departments and the posting Office in Rome. They could not of officials in the interests of the service. therefore be ignorant of the fact that being an official of the Communities may mean having to perform one's duties outside the State of origin; that kind (e) By applying to the applicants in of constraint, moreover, is merely the 1980 provisions adopted in 1976 the counterpart to certain advantages Commission was not in breach of the enjoyed by officials. principle of non-retroactivity, properly understood.

(h) The rotation system is intended (a) In all its communications both to avoid the possible onset of a concerning the disputed decisions the certain rigidity in the information offices Commission gave as grounds the for lack of regular staff renewal and to implementation of the rotation system. enable officials assigned to those offices As a statement of reasons that cannot be to return to headquarters after a certain held to be valid: the rotation system period in order to become acquainted could be implemented quite adequately with the workings of the central on the basis of the ordinary rules administration, thereby broadening their governing its operation, without retro- experience and increasing their chances active application. Retroactive appli- of promotion. cation is in any case not provided for in the decision of 24 November 1976. The Commission had, therefore, a duty to state the reasons for its decisions and to These aims are equally appropriate for indicate the reasons for applying the Category C officials: the applicants are system retroactively. The fact is that officials in Grade C 2 who occupy posts there are no reasonable grounds to as secretaries/shorthand-typists, immedi- justify that course of action. The failure ately below the posts for executive secre- to state reasons means that the decisions taries, which are in Grade C 1 and entail are void under the second paragraph of a certain amount of responsibility; Article 25 of the Staff Regulations. moreover, since the amendment of the Staff Regulations in 1972 it is possible for secretaries to move into Category B and, specifically, into the new career brackets B 2/B 3 (senior secretarial assistants) and B 4/B 5 (secretarial (b) The decision of 24 November 1976 assistants). allows consideration to be given to difficulties of a personal nature which may arise for officials in Categories B and C. However, the administration The varied experience which the failed to communicate to the applicants applicants would be able to acquire the reasons for which they considered through being assigned to headquarters the personal and family circumstances might have a favourable effect on both raised by them to be irrelevant. The their level of training and their chances Commission has a duty to state the of promotion. The rotation system is general principles which it applies in compatible with the interests of the choosing which officials to transfer, in service inasmuch as its aim is both to order, in particular, to enable the Court improve the operation of the to decide whether those principles are departments and to enhance officials' equitable and whether they were applied chances of promotion. correctly in the applicants' case. That obligation does not demand a comparative assessment of the personal situations of the various officials 2. The alleged failure to state reasons concerned.

The Commission considers the argument devoid of foundation. Moreover, the applicants have not raised any circumstance capable of establishing that the reasons which they advanced (a) As to the complaint that the were more deserving of consideration Commission failed to say why it applied than those relied upon by the officials the decision of 24 November 1976 who had been granted a deferment of retroactively, it should be remembered their inclusion in the rotation system. that officials have no vested right to the retention of the rules in force at the time of their entry into the service and that the administration may alter the rules governing the conditions of employment of its staff at any time, provided that its decisions refer only to the future. That (c) Since it is a question of a collective was precisely the case here, the measure concerning the organization of Commission's decision of 1976 having the service, and since it was adopted on been applied for the first time in 1980. the basis of a scheme already in existence Therefore the administration did not and known to the applicants, the apply that decision retroactively and was decision in question does not require an obviously not required to furnish any individual statement of reasons in each explanation in that regard. case.

CARBOGNANI AND CODA ZABETTA v COMMISSION

The Advocate General delivered his The applicants maintained that the opinion at the sitting on 12 February decision to transfer them to Brussels was 1981.

JUDGMENT OF 24. 2. 1981 — JOINED CASES 161 AND 162/80

Decision

1 By applications lodged at the Court Registry on 11 July 1980 Miss Carbognani and Miss Coda Zabetta, officials in Grade C 2 assigned as secre- taries to the Commission's Information Office in Rome, brought actions seeking the annulment of decisions whereby the Commission ordered their transfer from the Rome office to headquarters in Brussels.

2 Miss Carbognani originally entered the service of the High Authority of the ECSC in 1962. She worked in Luxembourg until 5 July 1968 and was then transferred to Directorate-General X of the Commission and assigned to the Information Office in Rome.

3 Miss Coda Zabetta entered the service of the Commission of the EEC in 1965. She worked in Brussels until 5 July 1968 and was then transferred, like her colleague, to Directorate-General X and assigned to the Information Office in Rome.

8 In an order dated 31 July 1980 the Judge acting as President of the Court noted that the Commission did not consider the above-mentioned letters from the Director-General for Personnel to be formal decisions but merely advance notices and held that it was not necessary to adjudicate upon the applications for the adoption for interim measures.

9 On the same day the head of the Management and Organization Department, acting as the appointing authority, signed formal decisions transferring the applicant to Brussels with effect from 1 January 1981.

10 After fresh applications for the adoption of interim measures had been submitted by the applicants on 5 December 1980, seeking to delay implementation of the decisions to transfer them, the Commission decided to defer the operation of the decisions until 1 April 1981 in order to give the Court an opportunity to adjudicate upon the actions. As a result, the applicants withdrew their applications for the adoption of interim measures.

1 1 By an order dated 18 December 1980 the two cases were joined for the purposes of the oral procedure and for judgment.

JUDGMENT OF 24. 2. 1981 — JOINED CASES 161 AND 162/80

Admissibility

CARBOGNANI AND CODA ZABETTA v COMMISSION

17 The argument based on the infringement of the Staff Regulations embraces a number of complaints concerning the applicability to the applicants of the decision on rotation, the mode of implementing that decision inasmuch as it permits officials to be transferred without their consent, and consideration of the applicants' personal circumstances.

18 On consideration of these submissions and the arguments of the defence it appears that the parties are in disagreement as to the nature of the disputed acts. The applicants are of the opinion that they have been subject to a transfer within the meaning of Article 7 of the Staff Regulations, whereas, according to the Commission, the operation is to be considered, consistently with current administrative practice, as a change of assignment affecting both the posts in question and their occupants. In this regard the applicants draw attention to the fact that in its decision of 24 November 1976 the Commission itself defined the scheme as a plan to "organize transfers of officials between the Offices and headquarters as part of the general programme to promote staff mobility".

T h e s c o p e of the c o n c e p t s of r e - a s s i g n m e n t and t r a n s f e r u n d e r the Staff R e g u l a t i o n s

19 Within the general scheme of the Staff Regulations there is a transfer in the strict sense of the term only when an official is transferred to a vacant post. It follows that any transfer, properly so-called, is subject to the formalities prescribed by Articles 4 and 29 of the Staff Regulations. However, those formalities do not apply when an official is re-assigned with his post because such a transfer does not give rise to a vacant post.

23 The applicants' argument disregards the principles of the Staff Regulations concerning the posting of officials and the effect in that respect of the decision introducing the rotation system. The way in which the Community's administration functions implies a duty on the part of every European official to accept any assignment, provided that it is consistent with the category and grade of his post and in accordance with the requirements of the service, throughout the Community in any place of employment within the institution in which he took up his duties. Constraints of a personal and family nature to which those conditions may give rise in the operation of the service are compensated for by the advantages and privileges conferred by the conditions of employment in the European public service.

24 Thus, even before the rotation decision was put into effect every official assigned to a post in a Commission office away from headquarters was subject to recall at any time as required by the organization of its services.

CARBOGNANI AND CODA ZABETTA v COMMISSION

Even though at the time in question the Commission had not altered the applicants' posting, or indeed that of other officials who were in a similar situation, for a considerable period that fact does not confer on those concerned any right to the indefinite continuance of that situation.

25 In the circumstances the decision of 24 November 1976 cannot be said to have introduced any new rules of substance concerning the assignment of officials to external offices, its effect being to replace a system of ad hoc decisions by a regulated system of transfers more in keeping with the requirements of justice and foreseeability for the officials concerned. In the circumstances it was to be expected that this scheme would be applied in the first place to the officials who had worked for a considerable time in the external offices and there can be no question of retroactive effect when a decision to recall them might have occurred previously under the general principles of the Staff Regulations.

29 In doing so the institutions must observe the guarantees embodied in the Staff Regulations and in particular the rule in Article 7 of the Staff Regu- lations which provides every official with the assurance of being given a post suited to his category and grade whatever the circumstances.

30 No criticism can be made of the principles of the rotation decision with regard to those requirements. As has already been stated in the above- mentioned order of 31 July 1980 the rotation system is intended to achieve a number of objectives such as the mobility of departments, diversification and optimum use of officials' experience, closer ties between the central administration and its external offices and the securing of balanced careers for the officials concerned. Accordingly, the Commission did not exceed its powers of organization and management in deciding to transfer the applicants under the system established by the rotation decision.

31 The Court must therefore reject the objections raised by the applicants to the actual principle of the decision of 24 November 1976 inasmuch as it lays down a scheme for changes of assignment between the central administration and the various external offices even against the wishes of those concerned.

— Consideration of the applicants' personal circumstances

32 In this regard the applicants assert, first, that even if it could be conceded that the rotation system is justified in the case of high-ranking officials it is not applicable to officials in their category, whose duties are purely clerical. Moreover, they consider that the Commission did not take into account, as it should have done, their personal circumstances and the grave adverse effects which their transfer from Rome to Brussels would have on them.

36 It should be borne in mind here that both the applicants were recruited orig- inally at the institution's headquarters, the first to work for the High Authority in Luxembourg and the second to work for the Commission of the

JUDGMENT OF 24. 2. 1981 — JOINED CASES 161 AND 162/80

EC in Brussels, and that they were originally assigned to secretarial duties in the central administration of those two institutions. They were transferred to the Directorate-General for Information and assigned to the Rome office in 1968 as part of the administrative reorganization which followed the merger of the European executives. Their assignment to Rome continued for a lengthy period which far exceeded that considered in the rotation decision to be a normal period having regard to the requirements of the service.

37 Against their transfer both applicants have raised objections of a personal and family nature, to which is added, for the second applicant, a difficulty regarding the education of her child.

The nature of those objections is such that, even leaving aside any question of principle, the adminstration cannot be criticized for having allowed the interests of the service to override them. As regards in particular the educational problems it should be pointed out that owing to the arrangements made by the institutions and the governments of the Member States, their solution should not raise any insuperable problems for the families of European officials.

38 Therefore the objections pleaded by the applicants based on their belonging to Category C and on the existence of personal difficulties must also be rejected.

42 In their reply, and more explicitly in the oral procedure, the applicants alleged misuse of powers by the Commission, based on the claim that in the course of the procedure it had become apparent that their transfer, originally presented as an exchange of officials between the central administration and the Rome office, was in reality designed to reduce the number of staff in that office. They maintain that it has in fact become clear in the meantime that they will not be replaced there.

43 The Commission has not denied that that is in fact the ultimate aim of its action; the figures given by it in the course of the proceedings show in fact that compared with similar offices established in other Member States the Rome office is over-staffed at the secretarial level, making it necessary to reduce the numbers to more appropriate proportions.

44 In this regard it must be appreciated that the way in which the decision of 24 November 1976 arranged for the rotation system to be put into effect in no way precludes the Commission, when staff are being transferred, from malting adjustments of staff levels between the central administration and the various external offices. Having been transferred with their posts to the central administration, the applicants have no ground to criticize the measures adopted on their departure in relation to the office to which they had previously been assigned.

45 Consideration of all the submissions leads to the conclusion that the application must be dismissed.

Costs

46 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs.

2. Orders each party to bear its own costs.

Pescatore Touffait Due

Delivered in open court in Luxembourg on 24 February 1981.

A. Van Houtte P. Pescatore Registrar President of the Second Chamber

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 12 FEBRUARY 1981 1

Mr President, Relying on an established administrative Members of the Court, practice of leaving officials permanently in the same place of employment, they had long assumed that the assignment Maria Grazia Carbognani and Marisa was to be permanent, in other words Coda Zabetta had both worked for the that they were to remain in Rome Commission, the former in Luxembourg definitively. They reacted immediately, since September 1962 and the latter in therefore, when they received a circular Brussels since September 1965, when dated 17 December 1979 signed by the they were assigned as secretaries to the Director-General for Personnel and Information Office in Rome, where they Administration to the effect that they took up their duties early in September were to prepare for their return to 1968. headquarters, in September 1980 at the