C-36/81

SETON v COMMISSION

may adversely affect officials are 8. Even if an official has grounds based is intended to enable the official for complaint regarding the concerned to know why a decision administration's slowness in his was adopted in his regard and to take regard, where he makes such steps to defend his rights and excessive charges in pursuing his case interests. that the defendant institution is compelled to hold an administrative That requirement is satisfied when the inquiry the result of which ought to measure against which an action may have dissuaded him from continuing be brought has been adopted in his action, his conduct makes the circumstances known to the official entire proceedings vexatious in concerned, which enable him to character and as a result he must apprehend the scope of a measure be ordered to pay the whole of the which concerns him personally. costs.

In Joined Cases 36, 37 a n d 2 1 8 / 8 1

PIETER W I L L E M SETON, an official of the Commission of the European Communities residing at La H u l p e (Belgium), represented by Marcel Slusny, of the Brussels Bar, with an address for service in Luxembourg at the C h a m b e r s of Ernest Arendt, 34 B R u e Philippe-Il,

applicant, v

COMMISSION OF T H E EUROPEAN COMMUNITIES, represented by J ö r n P i p k o r n , a member of its Legal D e p a r t m e n t , acting as Agent, assisted by Daniel J a c o b , of the Brussels Bar, with an address for service in L u x e m b o u r g at the office of Oreste M o n t a k o , a m e m b e r of its Legal D e p a r t m e n t , Jean M o n n e t Building, Kirchberg,

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the On 19 March 1976 Mr Seton was procedure and the conclusions, sub- notified of his periodic report for the missions and arguments of the parties period 1 July 1973 to 30 June 1975. may be summarized as follows :

By a letter dated 2 April 1976 Mr Seton made a number of comments on several I —• S u m m a r y of t h e facts points in that report, in particular on the description of his duties and the A — Cases 36 and 218/81 assessment of his ability, conduct in the service, technical knowledge and Pieter Willem Seton, who was engaged experience. He also requested that the by the Commission on 15 June 1959, was report be referred to the appeal assessor established by decision of 19 December in accordance with Article 6 of the 1962 as a principal administrator in General Provisions for Giving Effect to Grade A 4 at the Directorate General for Article 43 of the Staff Regulations of Transport with effect from 1 January Officials adopted by the Commission on 1962. 18 July 1971.

By Decision of 22 March 1974 Mr Seton was appointed head of the specialized On 15 November 1976 the Director branch dealing with harmonization of General, acting in his capacity of appeal social legislation at the Directorate for assessor, amended the periodic report by the General Development of the Com- supplementing the description of the mon Transport Policy and Air and Sea applicant's duties. On all the other points Transport with effect from 1 January he agreed with the assessments made by 1974. the first assessor.

In the opinion delivered on 14 April In 1980, having regard in particular to 1978 and notified to Mr Seton on certain recommendations made in the 21 April the Joint Committee on Staff report of 24 September 1979 containing Reports found that no reasons were proposals to reform the Commission of given such as to justify an assessment of the European Communities and its his ability and conduct in the service departments, drawn up at the Com- lower than that in the previous report. mission's request by five independent The committee came to the conclusion persons under the chairmanship of Dirk that the report in question should be Spierenburg, the Commission began to reconsidered. reorganize several of its directorates general with the aim in particular of reducing the number of administrative In a letter of 6 February 1979 the first units of which they were composed. assessor informed the appeal assessor of the express reasons for the assessments he had made. He stated in particular that As a result, on 8 October 1980 it as head of a specialized branch Mr Seton adopted with effect from 1 November was required to meet higher standards, measures to reorganize the Directorate that he had not proved to have sufficient General for Transport. As part of that managerial and organizational skills reorganization it decided in particular to ("ability") and that he had not treated abolish the specialized branch headed by his subordinates correctly or managed to Mr Seton and to assign him to the new create a good working atmosphere Market Policies (Working Conditions) ("conduct in the service"). Division. Mr Seton was officially notified of that decision in a letter from the Director for Personnel of 30 January 1981 and later in a memorandum from On 17 July 1980 Mr Seton lodged a the Director General for Personnel and complaint with the Commission under Administration of 9 February 1981. Article 90 of the Staff Regulations challenging in particular the assessments made by the assessor and complaining of In his new division Mr Seton was the delay in the drawing up of the required to take charge of the field periodic report. covering the harmonization of working conditions under the authority of a head of division.

Upon hearing the report of the Judge- After receiving no reply to his complaint Rapporteur and the views of the of 17 July 1980 during the four months Advocate General the Court (Second after it had been lodged, Mr Seton Chamber) decided to open the oral brought an action on 18 February 1981 procedure without any preparatory against the implied decision rejecting it. inquiry. That action was registered under number 36/81. The Court (Second Chamber), considering that the written procedure Mr Seton's complaint of 28 October had provided it with sufficient infor- 1980 failed to elicit any reply during thé mation about the other aspects of the four months after it had been lodged and dispute, requested the parties in their was therefore by implication rejected on argument at the hearing to concentrate 28 February 1981. An express decision on the question whether the reassign- rejecting his two complaints was notified ment of an official to duties corres- to Mr Seton by a letter from a Member ponding to his grade and his abilities of the Commission dated 13 May 1981 may constitute a "decision adversely which Mr Seton received on 20 May affecting an official" within the meaning 1981. On 20 July 1981 Mr Seton of the second paragraph of Article 25 of brought an action against the decision the Staff Regulations. rejecting his complaint of 28 October 1980. That action was registered under number 218/81.

I I I — C o n c l u s i o n s of t h e p a r t i e s On 18 February 1981 Mr Seton had brought an action against the Commission's'decision to assign him to a new post. That action was registered The applicant claims, as his conclusions under number 37/81. now stand, that the Court should :

(d) in Cases 36 and 37/81: A — Cases 36 and 218/81 Order the Commission to pay the applicant by way of compensation The procedure for drawing up the for material damage and non- periodic report material damage together such an amount to be fixed by the Court as it The applicant considers that the considers fair and reasonable; assessor's consistent delay and that of the In the alternative, should the Court persons to be consulted in the drawing consider that it cannot award joint up of his report for the period 1973 to compensation in Cases 36 and 1975 and the inability of the adminis- 37/81, order the Commission to pay tration to observe reasonable time-limits such compensation as the Court made the whole procedure, which was considers to be fair and reasonable, completed only as the result of his either for the material and non- complaint, null and void. material damage together or for the material and non-material damage The Commission itself regrets the delay separately; in the drawing up of the periodic report and its final form. It contends, however, that it would be paradoxical to ask for it (e) in the Joined Cases: to be annulled for that reason alone. The Order the Commission to pay the applicant adduces no evidence of having costs in all three cases; any interest in such a step.

The periodic report (f) in the final alternative: Order certain facts of which the The applicant contests the regularity of details are set out in the reply to be his periodic report for several reasons. verified by the evidence of witnesses; Order the Commission to produce (a) The Commission's decision of 13 papers, documents and memoranda; May 1981 expressly rejecting the com-

plaint of 17 July 1980 was not preceded harmonization of social legislation, and by consultation of the Joint Committee placed under an official who was pre- on Staff Reports as required by the viously in the same grade as the Guide to Staff Reports. applicant. They even made it possible to remove him from the service of the Commission, either by compulsorily terminating his service or assigning him non-active status or by the application of Article 51 of the Staff Regulations. Taken as a whole, the Guide to Staff Reports constitutes a measure for giving effect to the Staff Regulations which is binding on the institution. The rule relied upon in this case is in any event worded in such a way that it binds the A whole series of documents, facts and Commission as against its officials. circumstances set out in detail by the Consultation of the Joint Committee on applicant prove, he claims, that his Staff Reports is by no means an empty immediate superior, who was the first formality. In this instance it would have assessor, was biased against him and offered a genuine advantage as it show how their relations gradually concerned an amended report. deteriorated. In particular the applicant contends that in disregard of his own career interests he had tried to harmonize conditions of competition in the transport field whereas his superior was anxious to give preference to the (b) The reasons which the assessor interests of the carrier organizations and gave in his letter of 6 February 1979, of certain governments and block the which were adopted by the appeal progress of certain projects and the assessor in his letter of 30 July 1980, are implementation of several regulations. allegations going well beyond the assessments contained in the original periodic report and are contradicted by the applicant's very favourable report for the previous period. They are offensive towards the applicant and are not Those assertions are by no means refuted compatible with the appeal assessor's by the fact that the periodic report in function which is to act as a conciliator question was drawn up in 1976, which is between the official assessed and his before the period leading up to and assessor and not to make the report ending in the reorganization of the direc- worse. torate general within which the applicant was reassigned. The appeal assessor's report was in fact notified to him on 30 July 1980, when the preparations for the reorganization had already been published. Moreover, in the first reform (c) The letter of 6 February 1979 and proposal it was planned to take periodic the appeal assessor's decision constitute a reports into account to make a selection misuse of power. Their purpose was to of the heads of specialized branches who prepare the way for the measure by would remain principal administrators, which he was deprived of his headship of so the contested reporting procedure the specialized branch dealing with may be regarded as having been

(a) Neither the Staff Regulations nor even the general provisions adopted by There is no contradiction between the the Commission on 27 July 1979 for report and the assessment made in the giving effect to Article 43 of those regu- previous period. It is in the veiy nature lations provide for the Joint Committee of the process of periodic assessment that on Staff Reports to be consulted in the assessments previously made should event of a complaint. This is mentioned change; the new assessments of the only in the Guide to Staff Reports, a applicant stem from his change of duties document which explains and interprets at the end of the previous period of the general provisions. assessment.

According to the case-law of the Court, (c) The contested report dates from there is no infringement of an essential 19 March 1976 and it was finally procedural requirement if the decision approved in 1979 by the appeal assessor alleged to have been disregarded does who did not change it. It is therefore not constitute an implementing provision hardly plausible that the applicant's

JUDGMENT OF 1. 6. 1983 — JOINED CASES 36, 37 AND 218/81

The applicant seeks compensation for the material and non-material damage (b) No evidence has been adduced of allegedly caused him by the circum- the alleged non-material damage. stances in which his periodic report for 1973 to 1975 was drawn up and by the actual contents of that report. (c) The applicant has adduced no evidence capable of proving an intention "to diminish his standing". (a) The negligent delay in drawing up the report caused the applicant material damage consisting in the fact that between July 1975 and the date on which B — Case 37/81 the report was notified to him (30 July 1980) he was prevented from being promoted to four posts which became The regularity of the decision to transfer vacant. The Commission was thus guilty the applicant of a wrongful act or omission by putting or leaving the applicant in a less favourable situation than other officials The applicant contends that the eligible for promotion. Commission's decision to assign him to a new post is void on the grounds that the person who adopted that decision had no (b) In any event the applicant suffered power to do so, that the second non-material damage owing to the fact paragraph of Article 25 of the Staff that his personal file was irregular and Regulations was infringed, that no incomplete when the provision of a regard was had to the interests of the compulsory periodic report is a service and on the grounds of infringe- guarantee to an official of the regular ment of Articles 5 and 7 of the Staff progression of his career. Regulations and misuse of powers.

(c) In view of the applicant's age, the An amendment to the decision of measure in question permanently blocks 5 October 1977 transferring to the his career. Since it was adopted pursuant Director General for Personnel and to Article 7 (1) of the Staff Regulations, Administration the power to reassign which refers to the interest of the service, officials in Grades A 4 to A 8 was not it should have been applied upon published and could not be relied upon conditions analogous to those applying as against third parties until 5 November to a measure adopted under Article 50 of 1980. However, the decision to change the Staff Regulations which the Court the applicant's posting appears to have has held to be based on the assumption been adopted before that date. that the official concerned may give his views on the question whether the measure envisaged is in the interest of the service. That was not the case in this instance. In any event the only explanation for the instruction received by the applicant on or about 1 November 1980 to vacate the room which he occupied as head of a specialized branch and to occupy (d) According to the established another room is that the decision to case-law of the Court, a transfer may transfer him had already been taken, at a not have as its purpose or effect time, therefore, when the director adversely to affect an employee's general still had no power so to act. material and non-material interests and career prospects considered in relation to his previous duties. His remaining duties must correspond to his grade and post, account being taken of their character, (b) It is established by case-law that a importance and scope. transfer which is made without the agreement of the official concerned is a measure which adversely affects him and must therefore be communicated to him in writing at once in accordance with In this instance, because of the serious Article 25 of the Staff Regulations. In reduction of his chances of being that regard the written communications promoted to a post in Grade A 3, the dated 30 January and 9 Februaty 1981 applicant's present duties no longer

In the Commission's view, the statement (a) The Commission's decision of 5 of the reasons on which the decision October 1977 on the exercise of powers in question was based meets the conferred by the Staff Regulations of requirements set by the Court in its Officials on the appointing authority was decisions. At the preparatory stage the amended by a decision of the applicant was informed in broad terms of Commission which entered into force on the reorganization planned and was kept 1 April 1980 and was published in well posted of its progress whilst the Administrative Notices on 5 November decision was preceded and followed by a 1980. As amended the decision confers number of written and oral communi- on the Director General for Personnel cations which enabled the applicant to and Administration the power to reassign foresee and then to become acquainted officials in Grades A 4 to A 8 and their with its content and the reasons on posts. which it was based.

SETON v COMMISSION

JUDGMENT OF 1. 6. 1983 — JOINED CASES 36, 37 AND 218/81.

In the Commission's view, the application an administrative reorganization, in the for damages must be dismissed. The same grade and the same basic post may application for annulment is groundless, affect his future prospects and may be of and the applicant has not proved or even such a nature as adversely to affect him alleged any wrongful act or omission on in so far as it entails a change in the the part of the Commission. duties entrusted to him. In the present In any event the contested decision case the applicant's new duties entail a cannot have caused the applicant any real capitis diminutio for him as they damage, material or non-material. are on a lower level, involve less responsibility and compromise his career prospects. V — Oral procedure The Commission pointed out that the applicant continues to fill one of the At the hearing on 17 March 1983 oral basic posts corresponding to his grade, argument was presented by Marcel which, according to the Court's case- Slusny, for the applicant, and by Daniel law, is the crucial factor. In fact his Jacob and Jörn Pipkorn, for the present duties are at least of the same defendant, and answers were given to level as his previous duties and his career questions put by the Court. prospects have in no way been adversely affected. On the question of the concept of a measure "adversely affecting" an official As regards the other issues the parties within the meaning of the second elaborated on the contentions and paragraph of Article 25 of the Staff arguments which they had advanced in Regulations the applicant contended that the written procedure. it is clear from the case-law of the Court The Advocate General delivered his that an official's new posting, as part of opinion at the sitting on 5 May 1983.

The description of his duties in part 4 (b) was incomplete;

The analytical assessments in part 4, in which the assessor had awarded the mark "Average" for the applicant's ability and conduct in the service, were insufficient when compared with the previous report in which Mr Seton obtained the mark "Above average";

Whilst acknowledging Mr Seton's technical knowledge and experience, the report contained an unjustified criticism in so far as it was said that his management of his administrative unit left room for improvement.

4 In response to the applicant's objections the appeal assessor, Mr Le Goy, director general, amended the periodic report by supplementing the description of duties but as far as the rest of the report was concerned he confirmed the assessments made by the first assessor.

5 On 14 April 1978 the Joint Committee on Staff Reports found on appeal from Mr Seton that the assessor's general assessments were not sufficient justification for changing the marks awarded for ability and conduct in the service as compared with those awarded in the previous report.

6 On 6 February 1979 Mr Erdmenger expressly stated the reasons for his assessments as requested in that opinion. He stated that as head of an independent branch Mr Seton had assumed new responsibilities during the period of assessment, that in the performance of those duties he had not shown sufficient aptitude for organizing and managing his unit and that he

That the appeal assessor ignored his rôle of conciliator by merely confirming the adverse judgments of the first assessor;

That some of the assessments in the report were manifestly wrong;

That there was a misuse of power inasmuch as by means of his unfavourable report Mr Erdmenger prepared the ground for removing the applicant from his post of head of department.

io In support of the last submission the applicant maintains word for word the arguments advanced in the dispute about his reassignment. Since that contention will be examined in connection with Application 37/81, for the

SETON v COMMISSION

purposes of Applications 36 and 218/81 its examination may therefore be limited to the submissions relating to the delay in drawing up the periodic report and the fact that the Joint Committee on Staff Reports was not consulted and to the allegations that the appeal assessor ignored his true rôle and that certain assessments were wrong.

H In any case delay in the adoption of certain definitive views during the course of the assessment procedure is not such as by itself to affect the

JUDGMENT OF 1. 6. 1983 — JOINED CASES 36, 37 AND 218/81

validity of the resultant report. It must therefore be concluded that this submission, and consequently the whole of Application 36/81, must be dismissed for lack of any interest on the part of the applicant.

The submission that the Joint Committee on Staff Reports was not consulted

15 The applicant contends that, according to the Guide to Staff Reports, the Commission ought to have consulted the Joint Committee on Staff Reports before making its decision of 13 May 1981 rejecting his complaint. N o such consultation took place however.

16 It is true that the Guide to Staff Reports provides that the Joint Committee must be consulted when the official assessed lodges a complaint under Article 90 of the Staff Regulations. However, in this instance it must be borne in mind that the applicant had himself appealed to the Joint Committee at en earlier stage of the procedure and had obtained satisfaction inasmuch as that committee's opinion led the assessors to give express reasons for certain assessments which he had challenged.

20 In making that submission the applicant fails to understand the rôle of the appeal assessor. His task is to check, quite independently, the assessments made by the first assessor. He is therefore perfectly entitled to confirm the first assessment if he thinks that appropriate.

21 This submission must therefore also be dismissed.

The submission that some of the assessments in the periodic report are manifestly •wrong

22 The applicant contends that the assessors' critical observations regarding his ability to manage a specialized branch and on his relations with his colleagues are manifestly wrong and quite groundless. He attributes them to his superiors' animosity towards him due to differences of opinion about the policy pursued by the directorate general and bias shown on behalf of one of his colleagues whose promotion his immediate superiors wished to ensure.

23 In this regard it must be stressed that assessors have the widest discretion when judging the work of persons upon whom they must report and that it is not for the Court to interfere with their assessments save in the case of error or manifest exaggeration.

24 On this point it need only be recalled that in his original periodic report the applicants performance was marked as "average" and it was only at the applicant's insistence that the assessors expressly stated the reasons which, in their view, justified a less favourable assessment than that awarded for the previous period of assessment. The applicant has not adduced any convincing reason for believing that in making their judgments the assessors exceeded

28 By a letter of 30 J a n u a r y 1981 from the D i r e c t o r of Personnel the applicant was officially notified of his assignment t o Division V I I B 1. T h a t letter was confirmed on 9 February 1981 by a letter from the Director General of Personnel and Administration.

29 On 30 January 1981 the applicant lodged a complaint with the Commission under Article 90 of the Staff Regulations. In that complaint he attributed his reassignment to the ill-will of his former director with whom he took issue

SETON v COMMISSION

on several problems concerning the views adopted by the directorate general on transport policy. In specifying his grounds for complaint he questioned the objectivity of his immediate superiors, accusing them of being sensitive to pressure from carrier organizations and certain governments to the point of failing to implement provisions of the Treaty and certain regulations and directives adopted under the Treaty.

32 The applicant lodged his application on 18 Februaiy 1981 together with an application for the adoption of an interim order suspending the decision to reassign him. After finding that "within the new department to which he has been transferred following the reorganization of Directorate General VII the

JUDGMENT OF 1. 6. 1983 — JOINED CASES 36, 37 AND 218/81

applicant will be able to carry out the duties corresponding to his grade and that nothing has happened to him which could be reversed were his application to be granted", the President of the Second Chamber of the Court, by an order of 12 March 1981 ([1981] ECR 813), dismissed the application for an interim order on the ground that the matter was not one of urgency.

33 In his application the applicant puts forward five submissions alleging that the authority which adopted the decision to reassign him had no authority to do so, that he was not properly consulted on the planned measure concerning him, that his administrative position and rights guaranteed by Articles 5 and 7 of the Staff Regulations were infringed, that contrary to Article 25 of the Staff Regulations a statement of reasons was not provided and that there has been a misuse of power.

The submission as to lack of authority

34 The applicant contends that the decision to reassign him ought to have been adopted by the member of the Commission responsible for staff matters and that the decision is in any case contrary to the provisions adopted by the Commission on the delegation of powers.

39 As to that complaint, it need only by remarked that, although the Staff Regulations contain precise guarantees of officials' rights under them, the Community administration is not under any duty to seek the individual views of officials on measures of reorganization which may affect their individual position. The only guarantee afforded to officials by the Staff Regulations in this regard is the duty laid down in Article 25 of the Staff Regulations to state the grounds on which individual decisions which may adversely affect their position under the Staff Regulations are based.

40 This submission must therefore be dismissed.

The submission that the applicant's administrative position was affected

41 The applicant considers that the measure involving his reassignment adversely affected his material and non-material interests recognized in Articles 5 and 7 of the Staff Regulations as well as his career prospects. He takes the view that the fact that he was deprived of the management of a specialized branch and was transferred to another administrative unit in which he no longer enjoys the same independence amounts to a repudiation of the guarantees provided by the Staff Regulations.

42 On this point it must be observed that, although the abolition of the specialized branch may have caused the applicant to lose a certain independence, it did not nevertheless alter his position under the Staff Regu- lations in any way. The new duties assigned to the applicant come within the

JUDGMENT OF 1. 6. 1983 — JOINED CASES 36, 37 AND 218/81

The submission that reasons were not given

46 The applicant relies inter alia on Article 25 of the Staff Regulations which states that: "Any decision adversely affecting an official shall state the grounds on which it is based". However, the reassignment decisions, he claims, contain no statement of the grounds on which they are based except a vague reference to the "reorganization of the Directorate General for Transport" in the letter of 9 February 1981.

SETON v COMMISSION

47 The scope of the obligation under Article 25 of the Staff Regulations to state the grounds on which decisions are based must be ascertained from the purpose of that provision which is to protect an official against the possibility that his position under the Staff Regulations may be adversely affected in any way. The statement of the reasons on which measures which may adversely affect officials are based is intended to enable the official concerned to know why a decision was adopted in his regard and to take steps to defend his rights and interests.

48 That requirement is satisfeid when the measure against which an action may be brought has been adopted in circumstances known to the official concerned, which enable him to apprehend the scope of a measure which concerns him personally.

49 It appears from the papers before the Court that the applicant knew of the Commissions decision concerning the reorganization of his directorate general and was aware of the consequences which that reorganization must have upon his own administrative position. Under those circumstances, the reference in the communications at issue to the reorganization of Directorate General VII is a sufficient indication of grounds for the purposes of Article 25 of the Staff Regulations.

53 If Mr Seton had reasons for disapproving of his superiors' actions he could have made his criticisms to the competent authorities. The Commission's reaction to the accusations made in the complaint of 30 January 1981 and the task assigned to Mr Verheyden demonstrate that the Commission was sensitive to the applicant's comments and that it endeavoured to form an objective view of the differences of opinion that existed.

54 It should also be pointed out that the measures of reorganization which led to the abolition of the specialized branch previously managed by the applicant and the decision to reassign him were adopted by the Commission at the highest level so that it is illusory to attempt to establish a link between those measures and Mr Seton's personal dispute with his immediate superiors.

55 As to the applicant's contention that the disagreement with his superiors was reflected in his periodic report, it should again be recalled that the first version of the report shows great reserve on the part of the assessors in expressing certain criticisms of the applicant's management of the specialized branch of which he was in charge. More explicit criticism was expressed only in response to the complaint lodged by the applicant with the "Joint Committee on Staff Reports.

56 The submission alleging misuse of power must therefore be dismissed in respect of both Applications 37 and 218/81.

57 It follows from the foregoing that the applications must be dismissed in their entirety, including the claims for damages.

SETON v COMMISSION

1. Dismisses the applications;

2. Orders the applicant to pay the whole of the costs, including those in the proceedings for the adoption of an interim order.

Pescatore Due Bahlmann

Delivered in open court in Luxembourg on 1 June 1983.

J. A. Pompe P. Pescatore Deputy Registrar President of the Second Chamber