C-176/82

JUDGMENT OF 14. 7. 1983 — CASE 176/82

2. Since the purpose of the duty to state The duty to state the gounds on the grounds on which a decision is which a decision is based, within the based is both to permit the person meaning of the second paragraph of concerned to determine whether the Article 25 of the Staff Regulations, is decision is defective, making it satisfied if the circumstances in which possible for its legality to be the contested measure was adopted challenged, and to enable it to be and notified to those concerned make reviewed by the Court, it follows that it possible for those persons to the extent of that obligation must be recognize the essential factors which determined on the basis of the guided the administration in its particular facts of each case. decision.

In Case 176/82

T H É O NEBE, an official of the Commission of the European Communities in Grade A 4, represented by G. Vandersanden of the Brussels Bar, with an address for service in Luxembourg at the Chambers of J. Biver, 2 Rue Goethe, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by J. Pipkom, a member of its Legal Department, acting as Agent, assisted by R. Andersen of the Brussels Bar, with an address for service in Luxembourg at the office of O. Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for the annulment of the decision of the Commission of 24 November 1981 concerning the reassignment of the applicant with effect from 1 December 1981 from Division V I / D / 1 to Division V I / G / 4 ,

Facts and Issues

The facts of the case, the course of the memorandum the Commissioner the procedure and the conclusions, stated that the new procedure was "not submissions and arguments of the parties intended to replace the present system of may be summarized as follows: transfer provided for by Article 29 (1) (a) of the Staff Regulations but to encourage increased staff mobility." The Commissioner's proposals were adopted by the Commission on 29 October 1980. I — Facts and p r o c e d u r e

JUDGMENT OF 14. 7. 1983 — CASE 176/82

lations and states that it was adopted "in they were not adopted pursuant the interest of the service". to the Commission's decision of 29 October 1980 concerning the manner in which the decision of 23 On 18 December 1981 the applicant July 1980 was to be implemented. lodged a complaint against that decision "concerning reassignment under the mobility procedure". 2. The decision of 29 October 1980 was implemented in respect of all departments of the Commission by As there was no response to his the publication of a 'preliminary list' of officials in Categories A 7/A 6 complaint he brought the present action and B 5/B 4 who had not had a on 12 July 1982. 'significant change of assignment' for three years or more. The list was Upon hearing the report of the Judge- published on 15 February 1982 in Rapporteur and the views of the the Staff Courrier No 353. On the Advocate General, the Court (Second basis of the response to the pub- Chamber) decided to open the oral lication of the list a final list of procedure without any preparatory officials in Categories A 7/A 6 and inquiry. Nevertheless the Court asked B 5/B 4 who had not had such a the Commission several questions to change of assignment was published which it replied in writing. on 15 October 1982 in the Staff Courrier No 383. That list.. . comprises 16. officials in Category Thus the Commission informed the A 7/A 6 and six officials in Category B 5/B 4 employed in DG VI. Court by a letter of 12 April 1983 that:

The Commission contends that the Moreover, both the situation existing in Court should: Division V I / D / 1 as a result of the applicant's departure and the alleged Dismiss the action; need to strengthen Division V I / G / 4 by transferring him to it are contrary to the interests of the service. In the applicant's Order the costs to be paid in accordance opinion his absence from Division with the relevant legal provisions. V I / D / 1 is responsible for the poor operation of that division. It is true that work was being delayed in Division V I / G / 4 but that defect is attributable to Ill — Submissions and argu- the complicated nature of the supervisory m e n t s of the p a r t i e s procedures relating to the closing of accounts. Furthermore the applicant's specialized experience was of no First submission: infringement of Article assistance there. 7 (1) of the Staff Regulations In addition the assessment by the The applicant emphasizes that the appointing authority of the interests of contested decision is governed by Article the service must include the functioning 7 (1) of the Staff Regulations and that of the departments in their external therefore it must be'based; in principle,' relations, where the compulsory re- "solely on the interest of the service". posting of the applicant gave rise to astonishment. He states that whilst it cannot be denied Finally, even if the interest of the service that that concept requires the exercise of is a concept the scope of which must be a discretionary power by the Community assessed primarily by the appointing administration, it is necessary to authority, it would be unreasonable not ascertain whether the administration has to take into account at all the interest exercised it for the proper reasons. If it of the person concerned. Since the has not, the decision must be regarded as appointing authority took account of vitiated by an error of' law. neither the applicant's expertise nor his wishes, the administration was in breach The applicant submits that the whole of of the duty to have regard for his welfare his professional career has been involved [Fürsorgepflicht]. in the study of the milk products sector. It was precisely on account of his out- The applicant therefore concludes that standing specialist qualifications that the the reference to the interests of the Commission recruited him by the service to justify his assignment to new exceptional method of direct ap- duties constitutes an error of law pointment as provided for by Article vitiating the contested decision. 29 (2) of the Staff Regulations to fill a specific post the duties of which The Commission emphasizes that all correspond in every respect to his officials, regardless of their method of knowledge. Consequently, the interests recruitment, are subject to the same rules of the service and respect for the legality contained in the Staff Regulations and of that exceptional method of recruit- may, whoever they are, be transferred or ment require that the applicant should reassigned in the interest of the service. remain assigned to the special duties Neither the Director-General of DG VI which formed the justification and basis nor the appointing authority exceeded for his recruitment. the limits of the broad discretionary

The Commission reiterates that the The applicant maintains that the measure adopted · in relation to the Commission's decision of 29 October applicant was a reassignment in the 1980 was disregarded inasmuch as he interests of the service. In order to was compulsorily reassigned despite the decide whether the duty to give reasons fact that the conditions laid down in the under Article 25 of the Staff Regulations decision were not met in his case. was complied with consideration must be given not only to the wording of the decision itself but also to all the circum- The Commission replies that the stances in which it was adopted and applicant's reassignment was not a direct brought to the applicant's notice, as well consequence of the implementation of as the staff memoranda and other the mobility procedure, which is not communications on which it was based. intended to replace the present system of transfer referred to in Article 29 (1) (a) of the Staff Regulations. Reassignment is In the present case it is clear that the certainly subject to the rules set out in applicant received ample information as Article 7(1) of the Staff Regulations to the reasons for his reassignment. In with regard to the protection of the fact, not only did the Director-General rights and legitimate interests of the explain to him in the course of an officials in question, but in the present interview that he intended to propose his case those rules were scrupulously reassignment to Division V I / G / 4 but he

NEBE v COMMISSION

Decision

1 By application lodged at the C o u r t Registry o n 12 July 1982 M r T h é o N e b e , an official of the Commission in G r a d e A 4, b r o u g h t an action for the annulment of the decision of the Commission of 24 N o v e m b e r 1981 reassinging him with effect from 1 D e c e m b e r 1981 from Division V I / D / 1 to Division V I / G / 4 .

2 T h e applicant, w h o is an expert in milk products and their m a n u f a c t u r e , entered the service of the Commission in 1962. H e was appointed p u r s u a n t to Article 29 (2) of the Staff Regulations of Officials which provides t h a t a recruitment p r o c e d u r e other than the competition p r o c e d u r e m a y be a d o p t e d by the appointing authority in exceptional cases, inter alia for posts requiring

JUDGMENT OF 14. 7. 1983 — CASE 176/82

special qualifications. Until 1 December 1981 the applicant performed his duties in Division V I / D / 1 , Milk Products, of Directorate-General VI, Agri- culture.

4 Those proposals were adopted by the Commission on 29 October 1980.

s On 12 March 1981, in a memorandum issued for the attention of the staff of Directorate-General VI, the Director-General for Agriculture emphasized that the mobility policy applied, in principle, on a voluntary basis, b u t t h a t did not exclude, according to the memorandum, the possibility of compulsory reassignment should the need arise.

NEBE v COMMISSION

6 On 13 October 1981 in the course.of an interview with the applicant the Director-General for Agriculture offered him a reassignment to Division V I / G/A, Clearance of Accounts, Irregularities and Frauds. The applicant declined the offer and gave the reasons for his refusal in a memorandum to the Director-General. Nevertheless the latter, in a memorandum of 29 October 1981 addressed to the applicant, confirmed his intention to assign him to the aforementioned division with effect from 1 December 1981 and emphasized the urgent need to assign to Division V I / G / 4 an expert with the qualifications possessed by the applicant.

7 On 4 November 1981 the Director-General for Agriculture sent to the Director-General for Personnel and Administration a memorandum concerning "mobility within DG VI". Annexed to that memorandum was a list of transfers upon which a decision was to be adopted. One of the names on the list was that of the applicant.

s On 24 November 1981 the Director-General for Personnel and Administration adopted the contested decision which assigned the applicant together with his post to Division V I / G / 4 with effect from 1 December 1981. The decision refers to Article 7 (1) of the Staff Regulations and states that it has been adopted "in the interests of the service".

Inadequate statement of the grounds on which the decision was based;

Misuse of powers.

The alleged infringement of the Commission's decision of 29 O c t o b e r 1980

u The applicant maintains that the Commission's decision of 24 November 1981 was adopted pursuant to the mobility policy. If the decision refers to Article 7 (1) of the Staff Regulations that is because, technically, the mobility policy did not replace the transfer procedure. The applicant states that, until the rejection of his complaint in October 1982, there was nothing to suggest that it was a question of an internal reorganization of the departments. Consequently, since the contested decision does not comply with all the requirements laid down in the decision concerning the mobility rules, that is to say first and foremost the requirement that the move be volunatry, the contested decision should be annulled. In any case the applicant is one of those officials whose requests that their names should be removed from the list ought to be accepted according to the terms of the said general decision.

1 3 The Commission states that the applicant's reassignment was not a direct consequence of the implementation of the mobility rules laid down by the Commission's decision of 29 October 1980. It was a compulsory reassignment in the interests of the service, the most important reasons for which were the urgent need to improve the quality of Division V I / G / 4 in order to reduce the major delays occurring in the clearance of accounts and the need, for that purpose, to have an official with the applicant's qualifications and experience.

The alleged infringement of A r t i c l e 7 (1) of t h e Staff Regu- lations

i6 The applicant emphasizes that he was recruited originally under Article 29 (2) of the Staff Regulations on account of his specialized qualifications. Consequently, the interests of the service and respect for the legality of that exceptional procedure require that he should remain assigned to the special duties which formed the justification and basis for his recruitment and a particularly detailed statement of reasons must, in view of that requirement, be given for any decision to reassign or transfer him. Moreover, the fact that the applicant's transfer disrupted the Milk Products Division without benefiting the division to which he was reassigned is contrary to tne interests of the service. In addition the interests of the service should be assessed not only by reference to internal administrative management but also with regard

JUDGMENT OF 14. 7. 1983 — CASE 176/82

to the functioning of the departments in their external relations, where the applicant's move gave rise to astonishment. Finally, in forcing the applicant to perform duties which did not correspond to his specialist expertise the appointing authority failed to take into account his personal interest and thereby infringed the duty to have regard for his welfare. The applicant concludes that the contested decision was not adopted solely in the interests of the service as is required by Article 7 of the Staff Regulations and that it should therefore be annulled.

i7 It is clearly established in the Court's case-law that decisions reassigning officials are subject in the same way as transfers to the provisions of Article 7 (1) of the Staff Regulations with regard to the protection of the rights and legitimate interests of the officials concerned inasmuch as the officials may, in particular, be reassigned only in the interests of the service and in conformity with the principle that the post must correspond to the official's grade.

T h e s t a t e m e n t of t h e g r o u n d s on w h i c h t h e d e c i s i o n w a s b a s e d

20 The applicant maintains that the contested decision, like any measure adversely affecting an official, must state the grounds on which it is based in accordance with Article 25 of the Staff Regulations. In the present case the decision contains no reasons except the very general reference to the interest of the service. The record of events prior to the decision is inconsistent, inad- equate or incomplete and shows clearly that the decision was adopted by reference to the mobility policy despite the fact that the essential requirements for the implementation of that policy were not complied with.

21 As the Court has already emphasized on many occasions, since the purpose of the duty to state the grounds on which a decision is based is both to permit the person concerned to determine whether the decision is defective, making it possible for its legality to be challenged, and to enable it to be reviewed by the Court, it follows that the extent of that obligation must be determined on the basis of the particular facts of each case. As the Court has also confirmed in its case-law, the duty to state the grounds on which a decision is based, within the meaning of the second paragraph of Article 25 of the Staff Regulations, is satisfied if the circumstances in which the contested measure was adopted and notified to those concerned make it possible for those persons to recognize the essential factors which guided the administration in its decision.

Costs

26 Although the applicant has failed in all his submissions it is nevertheless necessary to take into account, for the purpose of making an order as to costs, the aforementioned considerations regarding the ambiguity of the Commission's position in relation to the legal basis of the contested decision. The Commission only indicated clearly that its decision was not adopted in the context of the mobility policy at a late stage, that is to say in its reply to the applicant's complaints and in its rejoinder. The applicant should not be penalized for having brought the matter before the Court in order to obtain a review of the legality of a decision which he had reason to consider to be entirely unlawful in that context.

27 It is therefore fitting to apply the second subparagraph of Article 69 (3) of the Rules of Procedure, which provides that the Court may order even a successful party to pay costs in proceedings which have arisen as a result of its own conduct.

NEBE v COMMISSION

On those grounds,

T H E COURT (Second Chamber)

O P I N I O N OF MRS ADVOCATE GENERAL ROZES DELIVERED O N 19 MAY 1983 '

Mr President, Accounts, Irregularities and Frauds) Members of the Court, within the Directorate-General of Agri- culture. Théo Nebe, an official in Grade A 4, has brought an action before the Court against the Commission of the European Communities concerning its decision of I — The facts are as follows: 24 November 1981 to reassign him from Division VI/D/1 (Milk Products) to Théo Nebe was engaged by the Division VI/G/4 (Clearance of Commission as a probationary official by

1 — Translated from the French.