C-263/81

JUDGMENT OF 27. 1. 1983 — CASE 263/81

It is not, however, necessary that 3. When proceedings are induced by the when the appointment decision is conduct of the appointing authority made all applicants should be at and by the lack of regard it has exactly the same stage regarding the shown the applicant, the latter should state of their periodic reports or that not be penalized, even if he has failed the appointing authority should in the majority of his submissions, for postpone its decision if the most requesting the Court to review t h e ' recent report on one or other of the effect that that conduct might have applicants is not yet final because it upon the lawfulness of the measures has been referred to the appeal in question. It is therefore appropriate assessor or to the Joint Committee. in such circumstances to apply the Furthermore, at least where a large second paragraph of Article 69 (3) of number of appointments are chal- the Rules of Procedure, according to lenged, the fact that the personal file which the Court may order even a of one applicant is irregular and successful party to pay the costs in incomplete is not a sufficient ground proceedings which have arisen as a for the annulment of the appoint- result of the conduct of that party. ments unless it is established that this was capable of having a decisive effect on the appointment procedure.

In Case 2 6 3 / 8 1

HARALD LIST, an official of t h e Commission of the E u r o p e a n Communities, residing in Brussels, represented a n d assisted by Marcel Slusny, of t h e Brussels Bar, with an address for service in L u x e m b o u r g at the C h a m b e r s of Ernest Arendt, of t h e L u x e m b o u r g Bar, 34b R u e Phillippe-II,

Annulment of the applicant's assignment to Directorate General II in view of his working conditions there;

Payment of compensation for the damage caused by that assignment;

Annulment of the procedure relating to the appointment of heads of group following Vacancy Notices Nos COM/895 to 901/80, including appoint- ments already made, alternatively the payment of damages therefor,

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

composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges,

Advocate General: Sir Gordon Slynn Registrar: J. A. Pompe, Deputy Registrar

was placed at the disposal of Mr complaint that he had been left without Ciancio, Director responsible for work since 1 October 1979 and that Translation, Documentation, Repro- when he obtained a new appointment it duction and the Library. In Case 124/78 involved translation work of insufficient Mr List claimed that those three quantity, whereas he was a reviser in decisions and other decisions relating Grade LA 4. The complaint was thereto should be annulled. In its registered at the Secretariat General of judgment in that case (judgment of 12. 7. the Commission on 3 March 1981. 1979 [1979] ECR 2499), the Court held that the withdrawal from the applicant of his duties as coordinator and the refusal to make him responsible in the absence of his superiors did not adversely affect The applicant applied for the posts of his position under the Staff Regulations head of group published in Vacancy and constituted simply internal ad- Notices Nos COM/895 to C O M / ministrative measures which could not be 934/80. the subject of an action. Even though the applicant sought to be protected against the alleged machinations of certain colleagues, the measures were justified when a reconciliation between the applicant and his colleagues was found Vacancy Notices Nos C O M / 8 9 5 to to be impossible, and they did not 901/80 were worded as follows: constitute an infringement of the obli- gation to provide assistance incumbent upon the administrative authority under Article 24 of the Staff Regulations. Furthermore, albeit for procedural "Category and Career Bracket LA 4 / reasons and without considering the LA 5 substantive issues raised, the Court confirmed the placing of the applicant at Department: II-C 4 Mr Ciancio's disposal. Directorate General: Personnel and Administration Directorate : Translation, Documen- tation, Reproduction and Library Division : Translation ·—German In 1978, before that case was closed, the applicant lodged a complaint that the Specialized department: work entrusted to him by Mr Ciancio, Place of employment: Brussels , the director, was of an inadequate level Basic post and quantity. That complaint was dismissed and the applicant did not bring Title of the post: Head of Translation the matter before the Court. Group Description and nature of duties : Direction of the work of a specialist translation group; Responsibility for the translation and In February 1981 the applicant was revision of important documents; placed at the disposal of Directorate Responsibility for ensuring the further General II. On 26 February he lodged a training of members of the group.

4. Thorough experience of translation It appears from a memorandum from Mr and revision work. Ciancio dated 11 December 1981 that once that condition had been satisfied Mr Ciancio reconsidered the applications Languages required: in question but did not think that the applicant could be appointed. As regards Vacancy Notices Nos COM/895 to Thorough knowledge of German; 901/80, the reason given was that, although the applicant had been first Very good knowledge of two other reviser in a small group of Germans languages of the Communities. working in the multi-language section concerned with migrant workers, he had ,» never been responsible for planning the work of a group of the size of those which were the subject of the vacancy notices and which formed an integral Vacancy Notices Nos COM/902 to part of a larger department, the size of 934/80 related to posts of the same kind which completely changed the nature of but in language groups other than the the problems. His application must be German groups. rejected in particular because his personal characteristics made him more suited to study than to management. Upon learning in March 1981 that his application had been rejected and knowing that his periodic report for the years 1977 to 1979 had not been made Subsequently, on 17 June 1982, the available to the appointing authority, the appointing authority adopted a decision applicant on 20 March 1981 lodged a confirming the rejection of the fresh complaint relating to the rejection applicant's candidature. of his application and the delay in compiling his periodic report. That complaint was registered at the Sec- retariat General on 23 March 1981. Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General tlie Court decided to Since neither complaint evoked any open the oral procedure without any response, the applicant brought this preparatory inquiry. By letter dated 14 action on 30 September 1981. July 1982 the Court nevertheless asked

the Commission to submit to it in writing the applicant, had met on 29 July 1982. before the hearing information as precise Provisional minutes of that meeting were as possible about the level and quantity submitted to the Court but do not of work entrusted to the applicant in his indicate the final result thereof. present post and comparable information on the work entrusted to his two colleagues. The Commission was also asked to make available to the Court Vacancy Notices Nos C O M / 8 9 5 to II — C o n c l u s i o n s of t h e p a r t i e s COM/934/80 and the applicant's periodic report for the years 1977 and 1978. On the basis of the explanations given during the oral procedure, the applicant claims that the Court should: As regards the quantity of work entrusted to Mr List and his two colleagues in Directorate General II, the Annul the disguised disciplinary measure Commission, by letter dated 8 October whereby the applicant was deprived of 1982, replied that in August 1982 Mr work during the period mentioned in the List had received 25 pages to be complaint of 3 March 1981; translated into German. His colleague, Mrs Tissot, who according to the infor- mation available to the Court is a In the alternative, order the defendant to translator in Grade LA 7, received in pay to the applicant such sum as the July 1982 23 pages to be translated into Court shall think fit to determine ex French, while his colleague, Mrs aequo et bono in compensation for the Gordon, who according to the same damage, both material and non-material, information is a translator in Grade which the applicant has suffered; LA 6, received during the same month 33 pages to be translated into English. The Commission added that those figures Annul the re-assignment of the applicant might be regarded as a normal month's to Directorate General II in view of his work for the three translators assigned to working conditions there; Directorate General II and that the level of the translation work entrusted to them was basically comparable and in any Order the defendant to pay by way of event varied according to the documents damages such amount as the Court shall to be translated: communications to the think fit to determine ex aequo et bono Council, minutes of committee meetings for the material and non-material and press releases. damage suffered;

In the alternative, order the defendant to been given relatively small quantities of pay to the applicant by way of damages work but adds that this has enabled him such amount as the Court shall think fit to devote a certain amount of time to his to determine ex aequo et bono for own further training. The Commission the material and non-material damage emphasizes further that the documents suffered; which the applicant was asked to translate were of an extremely technical Order the defendant to pay interest on nature or intended for publication such damages at the normal rate allowed without revision. by the Court as from the date on which the action was brought; There is therefore no disregard of the principle that the post should correspond Order the defendant to pay the costs. to the grade and no infringement of Article 45 of the Staff Regulations in the The Commission contends that the sense that the duties performed by the Court should: applicant have an adverse effect upon his career. There is thus no evidence of a disciplinary measure or any misuse of Dismiss the application as unfounded; power. Order the applicant to pay the costs. Second submission: Infringement of Articles 5, 7 and 25 of 'the Staff Regu- lations Ill — Submissions and argu- m e n t s of the p a r t i e s The applicant alleges that his secondment to Directorate General II, with the First submission : Misuse of powers consequent demotion from the point of view of the duties which he performs, The applicant emphasizes first of all that represents not only a new posting he has been without work for a period of contrary to Articles 5 and 7 of the Staff more than a year and that the work Regulations, as argued in his first entrusted to him in Directorate General submission, but also on that account a II is that of a translator, whereas he is a measure adversely affecting him, which reviser and ought not to be called upon pursuant to Article 25 ought to have to do translations save in exceptional been notified to him in writing and been cases. accompanied by a statement of the reasons on which it was based. The To deprive an official of work or to give applicant is not opposed to working in him work corresponding to a lower Directorate General II but states that grade than his own is an infringement of when he accepted that posting it was Articles 7 and 45 of the Staff Regulations understood that he would be working as and constitutes a disguised disciplinary a reviser. measure, inasmuch as the formalities for disciplinary measures provided for in Annex IX to the Staff Regulations are The Commission emphasizes first of all not observed. that the applicant — who, however, denies this — had ever)· opportunity during the interviews with his superiors The Commission admits that there have and with the assistant to the Director been periods in which the applicant has General of Directorate General II prior

The applicant emphasizes that it is IV — O r a l p r o c e d u r e common ground that his periodic report was compiled late. That very fact means that the applicant suffered material and non-material damage. It follows further The applicant, represented by M. Slusny, that, since the appointing authority did and the Commission, represented by J. not have knowledge of the report when Delmoly, acting as Agent, presented oral it reached its decision on the appoint- argument and answered questions put by ments to the posts of head of group, it the Court at the sitting on 14 October could not compare the merits of the 1982. applicant with those of the other applicants. There was thus an infringe- ment of the requirements of Article 45 of the Staff Regulations. Mr Ciancio's At that sitting the Court (Second reconsideration of the application on 11 Chamber) was composed of A. Chloros, December 1981 is quite irrelevant. It President, O. Due and K. Bahlmann, ought to have been carried out by the ad Judges. According to Article 27 (2) of

LIST v COMMISSION

the Rules of Procedure only those judges its new composition and fixed a second who were present at the oral proceedings sitting for 9 December 1982 at which the may take part in the deliberations. parties did not appear. Because of the death of A. Chloros, President of the Second Chamber, the Court, by order dated 19 November The Advocate General delivered his 1982, decided to re-open the oral opinion at the sitting on 16 December procedure before the Second Chamber in 1982.

Decision

1 By application lodged at the Court registry on 30 September 1981 Harald List, an official of the European Communities in Grade LA 4, brought an action, on the one hand, for the annulment of certain measures taken by the Commission with regard to him and, on the other, for an order that the Commission pay damages for the material and non-material damage caused by those measures.

5 In the meantime the applicant had applied, inter alia, for posts of head of group in the German translation division advertised in Vacancy Notices Nos COM/895 to COM/901/80. Upon being informed in March 1981 that his application had been unsuccessful and knowing that his periodic report for the years 1977 to 1979 had not been made available to the appointing authority, the applicant lodged on 20 March 1981 a complaint relating to the rejection of his application and the delay in compiling his periodic report.

6 The contested measures, as described in the application and specified in the oral procedure, are as follows:

The disguised disciplinary measure whereby the applicant was deprived of work for more than 12 months;

The assignment of the applicant to Directorate General II in view of his working conditions there;

The procedure relating to the appointment of heads of group following the aforesaid vacancy notices, including appointments already made.

LIST v COMMISSION

T h e a s s i g n m e n t to D i r e c t o r a t e G e n e r a l II

io The applicant alleges that his assignment to Directorate General II has involved demotion in so far as the level of his duties is concerned, inasmuch as the work entrusted to him in his new post is not only of an insufficient quantity but also of a level lower than that corresponding to his grade and

JUDGMENT OF 17. 1. 1983 — CASE 263/81

previous post. That assignment thus constitutes a measure adversely affecting him, which according to Article 25 of the Staff Regulations should have stated the reasons on which it was based and been notified to him in writing. Moreover, it constitutes an infringement of Articles 5 and 7 of the Staff Regulations, whereby every official must bē assigned to a post corresponding to his grade.

n The Commission emphasizes that the applicant agreed to the proposed secondment after having every opportunity during his meetings with his superiors to obtain information about the duties which awaited him. Moreover, the assignment did not adversely affect the rights of the applicant under the Staff Regulations since it was simply an internal administrative measure, as all nón-legal translators working at the Commission in Brussels are assigned to the Directorate General for Personnel and Administration. Therefore the decision in question cannot be regarded as a measure adversely affecting the applicant. Since the applicant agreed to perform his new duties with knowledge of the work involved, it follows that, if the requirement to state reasons and to give notification did apply, that requirement was met.

is There is no doubt that the appointing authority has, in the interests of the service, a wide discretion in allotting to officials who are members of the language staff translation and revision work which must be done at any particular time. Such discretion is indispensable in order to achieve effective organization of work and to adapt the organization to varying needs.

i6 Nevertheless that discretion does not extend to the case where the official is solely or mainly occupied with duties which, in view of their character, their importance and their scope, are normally entrusted to officials of a lower grade.

i7 It is apparent from the aforesaid description supplied by the Commission itself of the quantity and nature of the work entrusted to the applicant that such is the case here. That is, moreover, corroborated by the fact that the applicant's two colleagues in Directorate General II are both translators in Career Bracket LA 6 — LA 7 and that the request sent by the directorate general to the applicant's superiors concerned the secondment of a translator.

is Since it has not been shown that the applicant agreed to be seconded to Directorate General II in those circumstances, that amounts to a measure adversely affecting him. Moreover, it was adopted in infringement of Articles 5 and 7 of the Staff Regulations.

JUDGMENT OF 27. 1. 1983 — CASE 263/81

i9 The decision seconding the applicant to Directorate General II is therefore unlawful and must be annulled.

23 It appears from the file that the periodic report on the applicant for the years 1977 to 1979 was signed by the assessor on 8 June 1981, the applicant added his comments on 9 June 1981, the report was amended by the appeal assessor on 30 October 1981 and the Joint Committee on Periodic Reports, to which the applicant referred the matter, met on 29 July 1982. The Court has not been informed of any final result of that meeting.

LIST v COMMISSION

24 Moreover, it appears from the file that the Commission decided during the written procedure to reconsider Mr List's application for the posts in question when his periodic report had been drawn up and notified to him. When that condition was satisfied Mr Ciancio proceeded on 11 December 1980 to reconsider the applications in question but took the view that Mr List's application could still not meet with success. Subsequently, on 17 June 1982, that is to say before the meeting of the Joint Committee on Periodic Reports, the appointing authority adopted a decision confirming the rejection of the application.

25 As the Court has already emphasized, inter alia, in its judgment of 5 June 1980 in Case 24/79 Oberthiirv Commission [1980] ECR 1743, the periodic report constitutes an indispensable criterion of assessment each time the official's career is taken into consideration by the administration. The fact that the procedure in question does not relate to promotion within the meaning of the Staff Regulations is therefore not decisive.

26 The Court has consistently held that such a procedure is tainted with irregu- larity in so far as the appointing authority has not been able to consider the comparative merits of the candidates because there has been a substantial delay on the part of the administration in drawing up the periodic reports of one or more of them.

29 For those reasons it is necessary to dismiss the claims for annulment and damages based on the irregularity of the procedure relating to the appointment of heads of group following Vacancy Notices Nos COM/895 to 901/80.

Costs

30 A l t h o u g h the applicant has failed in the majority of his submissions, it is necessary for the purposes of costs to take account of the above-mentioned considerations relating to the conduct of the defendant. It is apparent that the proceedings were induced by that conduct and by the lack of regard for the applicant which it demonstrated. It must be remembered that for a very long period the Commission gave the applicant only work of an insufficient quantity and level in spite of his complaints and in spite of his long experience and his undeniable and undenied ability and that the Commission has given no explanation to justify the considerable delay in drawing up his periodic report for the years 1977 to 1979. In those circumstances the applicant should not be penalized for requesting the Court to review the effect that those matters might have upon the lawfulness of the measures in question.

3i It is therefore appropriate to apply the second paragraph of Article 69 (3) of the Rules of Procedure, according to which the Court may order even a successful party to pay the costs in proceedings which have arisen as a result of the conduct of that party.

LIST v COMMISSION

On those grounds,

Delivered in open court in Luxembourg on 27 January 1983.

For the Registrar H. A. Rühi P. Pescatore Principal Administrator President of the Second Chamber

O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N SLYNN DELIVERED O N 16 DECEMBER 1982

My Lords, action (the second he has brought) concerns the period of his employment The Applicant, Harald List, is an official beginning on 1 October 1979. For the of the Commission in grade LA 4. At all first part of that period Mr List was material times he occupied the post of a working in DG IX. He says that he was reviser, in the Language Service. This given no work to do and, when he