C-338/82

JUDGMENT OF 17. 5. 1984 — CASE 338/82

state the grounds on which it is based, It is part of the normal exercise of a measure relating to internal organi- authority within an administration for zation which is not of such a nature a superior to assign, in conformity as to affect the official's position with the abovementioned principle, under the Staff Regulations or to duties to officials on the basis of their infringe the principle that the post to particular aptitudes; measures adopted which he is assigned should for that purpose require no special correspond to his grade. justification.

In Case 338/82

CARLO ALBERTINI, engineer, scientific officer, residing in Ispra,

and

MARIO MONTAGNANI, engineer, principal scientific officer, residing in Bologna,

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

Advocate General : G. F. Mancini Registrar : H . A. Rühi , Principal Administrator

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of On 31 August 1982 Mr Albertini and the procedure, and the conclusions, Mr Montagnani asked the Head of submissions and arguments of the parties the Applied Mechanics Division for per­ may be summarized as follows: mission to publish a paper which they had prepared in collaboration with two professors from the the University of I — Facts Bologna under the title of "Constitutive equations of austenitic stainless steels in dynamics — Experiments and Carlo Albertini and Mario Montagnani, calibration procedure". That paper was scientific officers at the Joint Research intended to be presented and discussed Centre, Ispra, have for several years been at a scientific conference to be held on carrying out research into the dynamic 17 December 1982 and organized by the behaviour of materials in the Applied University of Cairo; on 13 July 1982 it Mechanics Division. Their scientific had been forwarded by Mr Albertini to work appears to have made them inter­ the organizers of the conference. national authorities in the study of reactions of materials in dynamics and By a decision of 7 October 1982 the the constructions of apparatus capable of applicants were refused permission to measuring such reactions. publish the paper; on 5 November 1982

the Head of Division also objected to After hearing oral argument presented by their attending the Cairo conference. the applicants on the same day that they lodged their application for interim In a note dated 27 September 1962 the measures, and even before the Com­ Head of the Applied Mechanics Division mission had presented its observations, rejected a request by Mr Albertini and the President of the Second Chamber, Mr Montagnani for permission to invite acting as President of the Court, made an outside expert to the Centre. In a the following order on 23 December memorandum of 6 October 1982 he 1982 ([1982] ECR 4667) pursuant to reminded them that in relation to Article 84 (2) of the Rules of Procedure: contacts with outside researchers the Centre "must speak with a single voice", 1. The application to suspend the complained that they had been guilty of operation of the decisions of the improper conduct and requested them Head of the Applied Mechanics "to follow the normal procedures in Division of the Joint Nuclear future". Research Centre of 7 October and 5 November 1982 is dismissed. In an internal memorandum of 10 November 1982 the Head of Division 2. A decision on the other claims is informed various staff at the Centre, reserved. including Mr Albertini and Mr Montagnani, that "with effect from 3. Costs are reserved. today Mr V. will take over responsibility for research into the dynamic behaviour After receiving the written observations of materials, components and structures, of the Commission on the application for using the large machine for dynamic interim 'measures, the President of the trials". Second Chamber made a second order on 1 February 1983 ([1983] ECR 145) as On 9 December 1982 Mr Albertini and follows : Mr Montagnani submitted complaints to the competent superior authority 1. The application for the suspension of pursuant to Article 90 (2) of the Staff the operation of the decisions of the Regulations against all the decisions of Head of the Applied Mechanics the Head of the Applied Mechanics Division of the Joint Nuclear Divisions. Research Centre of 27 September, 6 October and 10 November 1982 are dismissed. II — Written procedure 2. Costs are reserved. On 23 December 1982, in accordance with the provisions of Articles 90 (2) and On 17 May 1983, more than four 91 (4) of the Staff Regulations, Mr months after the applicants had lodged Albertini and Mr Montagnani brought their complaint and therefore after an action seeking the annulment of the the implied rejection thereof, the decisions in question on the ground that Commission took an express decision they infringed Articles 17, 21 and 24 of rejecting the complaint and stating its those regulations. reasons for doing so.

The applicants claim that the Court should: Declare void the memorandum issued by the Head of the Applied Mechanics Division of 10 November 1982 whereby the applicants were unjustifiably and Declare that they are entitled under on a mere pretext deprived of their Article 17 of the Staff Regulations to responsibility for research into the publish and present their paper at the dynamic behaviour of materials and conference in Cairo on 27 December related studies, concerning in particular 1982; the use and improvement of equipment for heavy loading invented by the applicants; Declare that the appointing authority, its agencies and officials may not deny the applicants the right to publish the paper, Order the defendant to pay damages; inasmuch as such a denial violates the fundamental principles of the Com­ munity laid down in Article 2 of the EAEC Treaty and the equally fun­ Make an order for costs in favour of damental rights of research workers the applicants unless the appointing sanctioned by Article 17 of the Staff authority rapidly revokes the decision Regulations; and measures challenged;

Order preparatory inquiries including the Recognize the right of the applicants, hearing of witnesses, expert evidence, in the overriding interest of the inspection of the premises and the development of the research programme production of documents.

JUDGMENT OF 17. 5. 1984 — CASE 338/82

The Commission contends that the Court new head of division who took up his should: duties in 1976: he appointed another head to the relevant sector of the Applied Mechanics Division, refused to Dismiss the application in its entirety; assign a technician to the laboratory, deliberately impeded important scientific initiatives of the applicants and removed Order the applicants to pay the costs, from their responsibility equipment including those relating to the interim which was the most important that they proceedings. had patented and which represented the latest development of their research.

All such research is said to have been conducted on the applicants' own The insults to the head of division are at initiative without advice or encourage­ the same time insults to the Commission; ment from their superiors; relations with the provocative attitude of the applicants foreign undertakings have always been also offends the dignity of the Court. maintained by the applicants, the Centre merely providing the administrative structure; every decision and initiative of B — The refusal to allow publication and a scientific nature has been taken by them; the laboratory for trials of participation at a conference materials in dynamics had a separate and original scientific function until 10 November 1982; the Centre contributed The applicants complain that the head of only marginally to scientific devel­ division did not accept that they should opments. maintain independent scientific relations at a high level in order to further their work; his violent reaction to their The applicant's initiatives and scientific request for permission to publish the achievements were not accepted by the paper intended for the conference in

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The Commission considers that the (d) In any event, the refusal to refusal to authorize publication of the authorize publication of the paper in paper intended for the Cairo conference question is fully justified for scientific reasons. and to allow the applicants to attend the conference was fully justified for both procedural and substantive reasons. The negative opinion of the head of division was shared by other members of the division; an inter-departmental (a) The applicants did not follow seminar on the behaviour patterns of the normal procedure for submitting a materials came to conclusions con­ request for permission to publish: their firming, at least in part, the validity of request for permission was made on 31 the observations of the head of division; August 1982, one and a half months two outside experts subsequently con­ after the paper had been forwarded to sulted by the Commission delivered a the organizers of the Cairo conference. negative opinion on the scientific merits of the paper.

The applicant's conduct was in flagrant breach of the second paragraph of (e) On 9 March 1983 the applicants Article 17 of the Staff Regulations. submitted a request to publish a paper to be presented at a conference in Chicago in August 1983. The paper was an (b) The obligations to follow the amended and improved version of the established procedure is intended to paper in question and permission to ensure observance of the fundamental publish was granted. That fact confirms requirement, especially in the scientific that the attitude of the head of division

with regard to the request to publish the the Community and claim that the basic paper in question was fully justified and reason for the memoranda of 27 Sep­ that there is no animosity towards the tember and 6 October 1982 was the fact applicants. that the head of division, through his own fault, felt excluded from the management of scientific matters in the sector for which he was responsible. (f) The application to annul the refusal to authorize the applicants to take part in the Cairo conference no longer has any purpose in view of the date on which The fact that the applicants on a number the conference was held. of occasions had to propose cooperation with external theoretical experts was due to the shortcomings of another member of staff responsible to the same head of Moreover, the refusal of permission to division. attend the conference is inseparable from the refusal to permit publication of the paper. The cooperation with the outside expert whom the applicants had invited to the Centre allowed a joint research Even if the request to attend the programme of undoubted interest to be conference in Cairo could be regarded as established at a very modest cost. independent, it must be remembered that missions are not a right of the officials who request to be sent on them; the The head of division is aware that the competent superior has a discretion to applicants would never agree to enter authorize them if it is appropriate to do into research contracts with undertakings so. The availability of budgetary funds is not offering a sufficient scientific not a sufficient reason for a mission. In guarantee in the particular matter in the present case the head of division question. In a field falling directly within considered that the mission to Cairo was the competence of the applicants, he inappropriate and superfluous. prefers to rely on persons whom he regards as more docile to implement a policy which is not in the interests of the The fact that the refusal to authorize the Community. mission question was not dictated by any animosity on the part of . the head of division towards the applicants is shown The Commission considers that the by the fact that in the past they have applicants' contentions concerning the been on a large number of missions. right to maintain external contacts and to take part in conferences cannot be accepted.

The applicants' complain that the internal memorandum of 10 November 1982 (d) In the present case the head of in practice relieved them of the respon­ division considered that the two previous sibility for equipment which they had visits of the expert in question had been devised and built and entrusted it to disappointing, that his ideas were well- another employee. known and could be used in conjunction with others at least as valuable, without his being present. The applicants had worked for a large part of the last five years on the con­ struction of that equipment, being The refusal of the head of division to extremly special experimental apparatus; forward the request to invite the expert because of the head of division's personal was fully justified and did not infringe attitude, they were suddenly deprived any right of the applicants. without any justification of a unique instrument required for the further development of their research.

(e) The memorandum of 6 October 1982 from the head of division contains no general ban on the applicants' having The effect of the contested decision in contact with outside experts. It merely practice is to prevent testing and initial demands that the Centre's procedures in experiments with the apparatus in this matter be followed. Internal coordi­ question; in view of the applicants'

JUDGMENT OF 17. 5. 1984 — CASE 338/82

unique experience with the project and with the requirements of the department. the construction of the apparatus there is The aspects of staff management in a a risk of further delay if they are not scientific division which are at issue are reassigned to it. the responsibility not of the appointing authority but of the head of division.

The applicants were not the only staff The Commission is of the opinion that members of the Centre to have par­ the contested departmental instruction ticipated in the construction of the lies within the exclusive competence of heavy-loading machine; in any event, the the head of division, whose responsibility applicants cannot claim to have an it is to take all the decisions relating exclusive monopoly in its use. to the internal organization of his department in order to ensure that it functions as smoothly as possible. The The transition from the stage of the reasons on which it is based are construction of the machine to the stage completely valid, since they correspond at which it is perfected and then used for to the requirements of the department experiments requires from an organ­ and infringe no right of the applicants. izational point of view management and coordinating abilities very different from those required in the initial stage. An alteration in the allocation of duties (a) With regard to Mr Albertini, it between the members of the division is must be observed that his complaints are therefore quite normal; it is for the head quite without foundation since he has of division to assess the qualities of the retained his previous title of "sheet staff in the department and to decide holder", together with the duties which on their assignments on the basis of that involves. the fundamental requirement that the department should function as smoothly as possible. The applicants and in (b) As regards Mr Montagnani, it has particular Mr Montagnani had given to be said that the decisions contained in evidence in the past that they have little the contested departmental memorandum aptitude for work involving management were taken by the head of division after and coordination, which requries fre­ consultation with the director of the quent daily contact and cooperation with Centre; the head of division is other departments of the Centre; responsible inter alia for organizing the moreover the applicants, whether de­ work of the division in the best possible liberately or not, had retreated into manner and in that connection must "splendid isolation" which was not assign duties and responsibilities to the conducive to a climate of healthy members of the division in accordance internal cooperation.

The applicants gave particulars of their claims and stated that they withdrew the The Commission contended essentially criticisms of a personal nature directed that, in applying the second paragaph of against the Head of the Applied Article 17 of the Staff Regulations, the Mechanics Division of the Ispra competent authority is perfectly entitled establishment. to take account of the scientific merits of the paper submitted for permission to publish; authority was delegated to the head of division and in any event the As regards the refusal of permission to applicants no longer had any interest in publish their paper intended for the making any complaint in that respect, Cairo conference, they stated that they since their contribution was published had followed the normal practice of the with a note of their name and of the fact Ispra establishment (in which there that they belonged to the Centre in the was no "perusal committee"); they publication devoted to the work of the challenged the authority of the head of Cairo conference. division to apply the second paragraph of Article 17 or the Staff Regulations; they stated that the paper presented to the Moreover, by virtue of a delegation of Chicago conference in August 1983 was powers, the head of division had the different from that intended for the authority to determine whether the Cairo conference and they considered applicants should attend the Cairo that, in any event, the administration had conference and to adopt such measures no discretion in this matter; in particular of internal re-organization as appeared the scientific merits of a paper was not a necessary to him. criterion which could justify a refusal of permission to publish. At the sitting both sides were authorized to produce a number of documents, on which they submitted written obser­ As regards the refusal of permission vations, the applicants on 9 January 1984 to attend the Cairo conference, the and the Commission on 27 January 1984. applicants stressed that scientific staff have a general interest in establishing as many contacts as possible with research The Advocate General delivered his workers outside the Centre. opinion at the sitting on 5 April 1984.

In addition, the applicants claim that the Commission should be ordered to make good the damage caused to them by its unlawful action.

2 It has become apparent during the proceedings that the action, which was brought under Articles 90 and 91 of the Staff Regulations, seeks in substance the annulment of three sets of decisions or measures taken by the applicants' superior at the Centre, namely:

(a) two memoranda of 7 October and 5 November 1982, signed by the Head of the Applied Mechanics Division, refusing the applicants permission to publish the abovementioned paper and to participate in the Cairo conference;

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(b) two memoranda from the Head of Division, one of 27 September 1982 refusing to invite a Polish expert at the expense of the Centre and another of 6 October 1982 rebuking the applicants for interfering in the performance of research contracts;

(c) a memorandum issued by the Head of Division on 10 November 1982 informing the officials concerned, including the applicants, of new arrangements concerning the responsibility for research into the dynamic behaviour of materials and the use of the research equipment (the "large machine") intended for that purpose.

5 The applicants have not formulated in legal terms the submissions in support of their application. It appears from their written and oral observations, taken as a whole, that they are putting forward in substance three series of complaints. In the first place, they allege that the measures taken with regard to them were motivated by the animosity of their Head of Division and for that reason were based on grounds unconnected with the interests of the service. In the second place, they claim that the measures taken restricted their scientific freedom; they consider that such a restriction follows from the manner in which the second paragraph of Article 17 of the Staff Regulations was applied to them with respect to the publication of the paper at issue, from the obstacles placed in the way of their contacts with institutions or research workers outside the Centre and from the withdrawal of responsibility for carrying out research into the dynamic behaviour of

JUDGMENT OF 17. 5. 1984 — CASE 338/82

materials. In the third place, they complain that adequate reasons were not given for the various measures at issue, particularly as regards the decision of 10 November 1982.

6 The first of those complaints calls for a preliminary observation. The complaint, which is set out at great length in the application, involves a number of allegations insulting to the head of division, some of which are capable of casting a slur on his personal, scientific and administrative repu­ tation. Those allegations were not withdrawn until the hearing. In view of the fact that that withdrawal renders the first complaint virtually without substance, it may be concluded that the applicants are, in the final analysis, claiming either that there was no reason for the measures taken with regard to them or that the reasons for the measures were wholly unconnected with the interests of the service and that, in any event, the measures restrict their scientific freedom. It is in that light that the three series of complaints set out above must be considered.

10 On 5 November 1982 the Head of Division sent the applicants an internal memorandum concerning their attendance at the Cairo conference, which read as follows:

"I have examined the programme and take the view that it would not be profitable to send anyone to the conference. The programme is greatly lacking in homogeneity and for the most part is of no interest to us (production, design, industrial sessions, etc.). Some distinguished names appear in the programme but we can obtain the information contained in their papers by other means. The materials and reports of the session have little interest for us. I have invited you to withdraw your paper. Naturally my authority does not extend to your external co-authors. If they wish to present the paper in the name of their university they will have to reach agreement with their superiors."

11 It appears from the documents before the Court that on 30 November 1982 the applicants wrote to the conference organizer to inform him that permission to publish had not yet been given and that the paper must be regarded as withdrawn unless permission was forthcoming within the required period.

12 It appears from unchallenged information provided by the Commission that ultimately the paper was in fact published in the proceedings of the conference, which the applicants did not attend.

13 In order to demonstrate the unlawfulness of the refusal of their two requests the applicants refer to an internal memorandum dated 15 May 1979 (No 13/79) from the Director of the Ispra establishment relating to the procedure

15 The Commission observes that the applicants did not follow the normal procedure for submitting a request for permission to publish and did not observe the precise and express provisions of Internal Memorandum No 13/79. The request for permission, on the appropriate form, was not submitted until a month and a half after the paper at issue had been forwarded to the conference organizers in Cairo. That attempt to confront the applicant's superiors with a fait accompli is in flagrant breach of Article 17 of the Staff Regulations and is sufficient in itself to justify dismissal of the action.

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16 With regard to scope of the right of control exercised by the Community institutions over the publications of their officials under the second paragraph of Article 17, the Commission emphasizes that that right is intended, in the scientific field, to ensure observance of a fundamental requirement, namely that publications made in the name of the Centre should not adversely affect the scientific reputation of the Community.

17 In the present case, the competent Head of Division expressly informed the applicants of his criticisms regarding the inadequate scientific quality of their paper and in that connection the Commission consulted two outside experts one belonging to the French Atomic Energy Commission and the other to the Nuclear Research Centre in Karlsruhe; both confirmed the Head of Division s opinion.

21 On the one hand, they consider that the Commission may not put forward opinions obtained after the action was brought and which have not been examined by both sides. Secondly, they allege that the paper presented for the Chicago conference is not in any way an amended version of the paper in question but a completely separate paper.

22 In order to resolve these issues, it is necessary first of all to recall the provisions of the second paragraph of Article 17 of the Staff Regulations:

"An official shall not, whether alone or together with others, publish or cause to be published without the permission of the appointing authority, any matter dealing with the work of the Communities. Permission shall be refused only where the proposed publication is liable to prejudice the interests of the Communities."

23 That provision is supplemented in relation to officials of the scientific and technical staff of the European Atomic Energy Community by Article 94 of the Staff Regulations , which provides inter alia that the obligation to obtain permission extends to " the publication . . of any matter " dealing with the work of the Community .

24 The obligations arising from those provisions for the officials concerned are amply set out, as far as the requirements of the Ispra establishment are concerned, in Internal Memorandum No 13/79, the relevance of which has been recognized by the parties.

25 It follows both from the aforesaid provisions of the Staff Regulations and from the internal memorandum that the officials concerned may not enter into any commitment regarding official participation in scientific meetings and the presentation of papers before submitting to the superior authority the draft of the documents which they wish to present or publish on the occasion of such meetings.

30 It is apparent from the documents before the Court that the Head of Division, who, by virtue of the internal organization of the Centre, was entrusted with controlling the scientific work of the departments placed under his authority, did not exceed his lawful discretion in assessing the draft paper from the viewpoint of the scientific qualities desirable in the case of work presented in the name of the Centre. The applicants have been unable to demonstrate any circumstances which could lead to the view that there was a manifest error in that assessment.

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31 In those circumstances it does not appear necessary to consider the opinions which the Commission has obtained or to resolve the question whether the document subsequently presented at the Chicago conference is an improved version of the paper in issue or an entirely new document.

32 As regards the question of participation in the Cairo conference, which the applicants still consider important as a matter of principle, it must be observed that it is for the superior authority alone to decide, in complete freedom, whether it is appropriate to allow staff to participate in their official capacity in scientific meetings of that kind. The applicants cannot therefore complain that their Head of Division considered that the Cairo conference, whatever the value of its work, was not of sufficient interest from the viewpoint of the work performed by the Centre.

33 Finally, in so far as the complaint based on the failure to give adequate reasons applies to the two decisions in questions, it must be observed that both decisions contain an express statement of reasons, which was moreover fully understood by those concerned.

38 As regards the internal memorandum of 6 October 1982, it appears from that memorandum that the Head of Division rebuked the applicants for interfering with the performance of a research contract without the knowledge of the person primarily responsible for the contract, for forwarding to a third party a letter sent to the Centre by a French organiz­ ation and for intervening improperly in another contract. Those incidents led the Head of Division merely to remind the applicants of the rule that "in its outside contacts the Centre must speak with a single voice" and to describe their conduct as unacceptable because it caused "confusion to outside associates and chaos within the Centre".

39 Since the purpose of that internal memorandum was merely to remined the applicants of certain elementary principles valid for any administration in its relations with third parties, it cannot be regarded as an act capable of adversely affecting the applicants within the meaning of Articles 90 and 91 of the Staff Regulations.

40 It appears therefore that the complaints made under this head must be dismissed on the ground that they do not disclose any legitimate interest.

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Withdrawal from the applicants of their responsibility for research into the dynamic behaviour of materials

41 The subject-matter of this complaint is an Internal Memorandum dated 10 November 1982 from the Head of Division addressed inter alia to the applicants, the terms of which were as follows :

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complete. In no event can the fact that the applicants contributed to the construction of the equipment in question, which is the property of the Centre, confer on them a right of exclusive use. In that regard the Commission emphasizes that the applicants, like other research workers at the Centre, continue to have access to this research instrument.

46 With regard to this head of claim, it must be remembered that it is not possible to regard as a measure adversely affecting an official, within the meaning of Article 25 of the Staff Regulations, and as such subject to the requirement that the administrative authority should state the grounds on which it is based, a measure of internal organization which is not of such a nature as to affect the official's position under the Staff Regulations or to infringe the principle that the post to which he is assigned should correspond to his grade (see on this point the judgment of 1 June 1983 in Joined Cases 36, 37 and 218/81, Seton v Commission, [1983] ECR 1789). It appears from the particulars supplied during the proceedings that the internal memorandum in question did not alter the scientific nature of the duties performed by the applicants within their division. It is part of the normal exercise of authority within an administration for a superior to assign, in conformity with the abovementioned principle, duties to officials on the basis of their particular aptitudes; measures adopted for that purpose require no special justification.

47 It is apparent from an examination of the documents before the Court that the position of the two applicants under the Staff Regulations was not adversely affected by the measures taken by the Head of Division in his Internal Memorandum of 10 November 1982, whereby he altered the responsibilities within his division with respect to the management of the research instrument to the construction of which the applicants contributed .

52 The Court considers that the applicants cannot benefit from the provisions of Article 70 because of the, in many respects, abnormal and abusive manner in which they have conducted the proceedings. Such conduct, which is unacceptable in the relationship of trust which should exist within the Community administration, means that the applicants must be ordered to pay the whole of the costs, including those of the interim proceedings.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Dismisses the application;

2. Orders the applicants to pay the whole of the costs, including those of the interim proceedings.