C-218/80

JUDGMENT OF 22. 10. 1981 — CASE 218/80

3. It is proper to apply the second party to incur, to an institution which subparagraph of Article 69 (3) of the has led an official to bring an Rules of Procedure, pursuant to application by itself bringing about an which the Court may order even a abnormal situation and arousing in successful party to pay costs which the applicant expectations which are the Court considers that party by its understandable but unjustified. conduct to have caused the opposite

In Case 218/80

WALTRAUT KRUSE, an official of the Commission of the European Communities, residing in Brussels, represented by P.-P. Van Gehuchten of the Brussels Bar, with an address for service in Luxembourg at the Chambers of M r Loesch, 2 Rue Goethe,

applicant,

ν

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

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of that she performed those duties to the the procedure and the conclusions, complete satisfaction of her superiors. submissions and arguments of the parties However, in June 1979, she was asked may be summarized as follows : also to undertake secretarial duties and she then stated that she was unable, for health reasons, to undertake any type of work other than translation. I — Facts and procedure The applicant was absent from work The applicant, Miss Waltraut Kruse, has owing to sickness from the beginning of been an official of the European June 1979 until the end of that year. On Communities since 1961. She is a 3 December 1979, she had a discussion secretary/shorthand-typist in Category with her immediate superior who C. In the first few years of her career she informed her that, when she resumed her carried out secretarial duties as such, but duties in the following January, he it is clear from her periodic report for intended to assign her to the library 1970 to 1971 that, during the period in where she woulď be able to undertake question, she was already undertaking urgent translation work, albeit only for various translations and the drafting of one half of her time. It is clear from the texts in the usual working languages. documents in the case that the latter restriction led the applicant to make As from March 1973 she was exclusively strong protests. assigned to the duties of drafting texts and translation into several languages, By a note of 7 January 1980 addressed and it is clear from the periodic reports to the Director-General, the applicant let

There then followed an exchange of I l l — Submissions and argu- correspondence between the applicant's ments of the parties lawyer and the administration on 17 January, 17 March and 22 April 1980. On 18 April 1980, the applicant A — Admissibility submitted a complaint through official channels which was rejected by the administration on 28 July. This action The Commission first points out that the was brought on 28 October 1980. applicant mentioned herself in her complaint that "as from June 1979 she was compelled more and more to forsake On 22 April 1980, the appointing her work as a translator in order to authority informed the applicant that a attend to petty secretarial tasks". decision had been taken to refer her case According to the Commission, the act to the Invalidity Committee. adversely affecting the applicant dates therefore from the beginning of June and in December 1979 was merely II — Conclusions confirmed. The Commission argues therefore that the complaint, when lodged, was already out of time. Further- In her application, the applicant claims more, the rejection, whether express or that the Court should order the implied, of the complaint was purely a Commission to continue to guarantee confirmatory act and no application to her right to perform the duties of a the Court may be brought against it. translator, together with her assignment to such duties. Alternatively, the Commission states in this connection that a decision must be In her reply the applicant made a fresh taken on the basis of the conclusions of claim requesting the Court to declare the Invalidity Committee whether the that the Commission had failed to fulfil applicant is fit to perform her duties. In its obligation under Article 24 of the the Commission's view the applicant Staff Regulations of Officials to facilitate does not therefore have a sufficient the further training and instruction of interest to bring this action. the applicant, and to order the Commission to pay to her by way of The applicant states that the application damages one franc for damage suffered was brought within the period of three under that head. months from the date of the notification

Β — Substance The fresh claim set out in the applicant's reply, even if admissible, is unfounded, since it is clear from the documents in the case that, by permitting her, over the In her application, the applicant states years, to follow language courses and by that for the past seven years, although allowing her to undertake translations, she is in Category C, she has been the Commission did facilitate the working as a translator to the satisfaction applicant's supplementary personal of her superiors and that she has training. However, the fact remains that acquired a right to continue doing that she may only receive promotion within specialized work. her own category, after being successful in a competition, and the Commission alone is responsible for organizing its departments and must be allowed to make any changes in them which may In her reply, the applicant states that by become necessary. assigning ner to secretarial tasks the Commission has failed to fulfil its obligation under Article 24 of the Staff Regulations to facilitate her training and instruction. She bases her allegation on the fact that the Commission was aware of her exceptional qualifications in the IV — Oral procedure field of translation and also knew that she had great difficulty in adapting herself to secretarial duties. Moreover, the periodic reports clearly indicate that it is in fact thanks to her further training that she was able to produce work of a At the hearing on 4 June 1981, P.-P. very high standard. The administration's Van Gehuchten, representing Miss W. power to transfer officials is restricted, Kruse and D. Jacob, representing the on the one hand, by the interests of the Commission, presented oral argument. service and its efficient working, and on the other hand, by the duty of protection and assistance in the development of an official's career. The Commission has, on The Advocate General delivered her an objective view, not given any serious opinion on 17 September 1981.

4 The Commission challenges the admissibility of the application by stating, on the one hand, that the complaint was out of time and, on the other hand, that the applicant does not have a sufficient interest in the proceedings now that her case has been referred to the Invalidity Committee.

KRUSE ν COMMISSION

5 In the event, it is not necessary to adjudicate upon those preliminary objections since, even upon a cursory examination of the applicant's arguments, it may be adjudged that the application is in all respects manifestly unfounded.

6 In that connection it should be remembered, in the first place, that under Article 7 of the Staff Regulations of Officials, the appointing authority, acting solely in the interest of the service, has to assign each official to a post in his category or service which corresponds to his grade and secondly that it follows from Article 36 of those regulations that an official in active employment is obliged to perform the duties pertaining to the post to which he has been appointed.

7 Whilst it cannot be denied that the administration has every interest in assigning its officials to posts which accord with their particular aptitudes and their personal preferences, an official cannot for all that be recognized as having a right to perform or to retain specific duties, or to refuse any other duties pertaining to his basic post. The only right guaranteed to officials by the Staff Regulations is to have duties assigned to them which correspond to their grade and basic post.

8 Such considerations apply a fortiori where the duties, which the official claims she should be allowed to retain fall, at least partly, within another category than her own, as is the case here.

12 Although the applicant in fact has failed in her submissions, in settling the question of costs, the history of the dispute must be borne in mind. By assigning the applicant over a very long period, exclusively or mainly, to drafting and translating duties which at least partly fall within a category other than her own, the administration has itself brought about an abnormal situation and has aroused in the applicant expectations which are under- standable but unjustified. Thus, the attitude of mind which led the applicant to bring this application is due in part to the organizational arrangements made previously by the administration. In the circumstances, it is appropriate to apply the second paragraph of Article 69 (3) of the Rules of Procedure pursuant to which the Court may order even a successful party to pay costs which the Court considers that party by its conduct to have caused the opposite party to incur.

KRUSE ν COMMISSION

On those grounds,

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

hereby:

1. Dismisses the application;