C-129/80

ORDER OF T H E PRESIDENT OF T H E SECOND CHAMBER OF T H E COURT OF 2 JULY 1980 1

Mariette Turner, née Krecke, v Commission of the European Communities

Case 129/80 R

In Case 129/80 R

MARIETTE TURNER, NÉE KRECKE, an official of the Commission of the European Communities, residing in Brussels 1050, represented by Georges Vandersanden of the Brussels Bar, with an address for service in Luxem- bourg at the Chambers of Nico Edon, Advocate, 2 Rue Goethe, applicant, v

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

On 12 July 1978 the defendant submitted an application for the adoption institution decided to re-organize its of interim measures asking the Court "to medical branch in which the applicant, order . . . as soon as may be, the Mrs Turner, a doctor of medicine, was suspension of the operation of the employed as a Principal Administrator in decision imposing a compulsory transfer Grade A 4; as part of that re-organ- which was adopted by Mr Tugendhat on ization a proposal was first made, and 23 May 1980; and to order the then communicated to the applicant, that defendant to pay the costs". Several she should assume responsibility for the grounds were put forward by the socio-medical sector which was being set applicant in support of the application up; this was done in the first place by for the adoption of interim measures : means of a note from the Director- General of Personnel and Administration dated 4 May 1979; and secondly by a decision of the Commission of 8 June — The compulsory transfer to a post 1979 transferring the applicant from the where "some knowledge of medi- Medical Division to the specialized unit cine" is merely a subsidiary for medical services for the Brussels staff. requirement will prevent her from The applicant lodged an application with practising medicine as she has been the Court for the annulment of those doing for 25 years; decisions (Case 59/80).

— The measure was adopted with — The work is more suited to a undue haste and makes it impossible technical translator than to a doctor, to hand over current files in good so that it will be possible for the order; applicant to be blamed at some future date for inefficiency or lack of goodwill. — The measure is the most recent evidence of the attitude consistently adopted by the defendant with respect to the applicant, the purpose In reply, the defendant submitted obser- of which is to relieve the applicant, vations and a letter dated 13 June with against her wishes, of responsibility special reference to the arguments set in the medical sphere (see Case out by the applicant in her letter of 9 59/80); June. After summarizing the background of the Commission's medical branch, the defendant contends that the President of — The disputed decision was adopted in the Second Chamber should "reject the questionable circumstances while the application as being without foundation, applicant was on leave and she heard order the applicant to pay the costs, of it only by chance, so that she reserving all its rights", and submits the might otherwise not have been in a following principal arguments in support position to put forward an effective of its request: request for the operation of the measure in question to be suspended; — The applicant's claim that the — Lastly, the "excessively short time" measure which has been adopted will allowed to the applicant for prevent her from exercising the protecting her rights, and the "grave, medical profession is false, for she and even irreversible harm" inflicted was not recruited for that purpose, by the compulsory transfer are having performed for a number of grounds for granting the application years, prior to her appointment to the as a matter of urgency. medical branch, duties such as drafting the Monthly Radiological Protection Bulletin, and medical and statistical projects; the decision In a letter of 9 June 1980 the applicant transferring her returned her to informed the Court that on presenting duties of an administrative nature herself on 2 June to receive instructions such as those which she had carried concerning her new duties, and having out previously, which means that the taken up her post on 4 June after measure which has been adopted can handing over the current files, she had in no way be disciplinary; ascertained that:

— An official's posting must depend examination of the substance of the solely on the interests of the service, case and should not be dealt with by subject to the rights of the official means of a decision on an application under the Staff Regulations; the for the adoption of interim measures; requirements of the special medical services are to be determined by the — The tasks which the applicant will administration alone; have to perform as part of her new duties (participation in organizing the — The applicant's posting to a work of the Committee on Medical department responsible for or- Research and Public Health, and ganizing the work carried out by the inter-departmental liaison to co- Committee on Medical Research and ordinate activities in the health Public Health is suited to her abilities sector) are not in any case such as and will not cause her any "irre- might be performed by a technical parable harm"; translator, but are in keeping with — The way in which the disputed Mrs Turner's kind of training; other decision was drawn up and doctors participate in such work; communicated is in line with the — It is possible to use Mrs Turner's usual practice and was preceded by a knowledge of languages and in one preliminary discussion with the of the periodic reports on her it is Director-General for Personnel; indicated — in a remark added by — Whether or not the decision the applicant herself — that she had transferring her may be contrary to worked on a project between 1967 the applicant's professional interests and 1969 where English was the is a matter to be decided upon predominant language used.

3 What the applicant does rely on, however, is the irreparable harm which she claims she will suffer if it is made impossible, even temporarily, for her to practise medicine. It is not disputed, however, that the applicant practised medicine at the Commission — in the way in which she uses the term, that is to say, apparently, having responsibilities connected with the treatment of patients or personal examination of individuals — only after she had been engaged to occupy an administrative post of her own free will, as is shown by her contract of employment of 22 December 1965 and the decision to establish her dated 1 August 1968. Without prejudice to any influence those facts may have as far as the decision to be taken by the Court regarding the substance of the case is concerned, in the context of the application for the adoption of interim measures it must be concluded therefrom that the assignment to duties which do not include direct medical practice is not capable of causing irreparable harm to Mrs Turner pending the outcome of the litigation in which she is engaged with the Commission.

4 The fact that she has been temporarily asked to carry out duties comparable to those which she had previously applied to perform does not, moreover, amount to a disciplinary measure and does not in any way call Mrs Turner's reputation in question; no evidence has been put forward in support of such allegations.

5 The fact that she has to use English in her new duties would not appear necessarily to occasion any particular embarrassment to Mrs Turner in view of the fact that she herself pointed out in an earlier periodic report that she was using that language in her previous work.

T H E PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

by way of an interlocutory decision,

hereby orders as follows :

1. The application for the adoption of interim measures is dismissed.

2. Costs are reserved.

Luxembourg, 2 July 1980.