C-69/83

defendant,

APPLICATION for annulment of the decision of the Court of Auditors of 24 March 1983 changing the allocation of posts as between the President's Sector and the Staff and Operational Expenditure Sector and also the decision of the President of the Court of Auditors of 14 April 1983 changing the applicant's posting and assigning him to the Staff and Operational Expenditure Sector,

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

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

Advocate General : P. VerLoren van Themaat Registrar: H. A. Rühi, Principal Administrator

gives the following

On 24 March 1983 the Court of Upon hearing the report of the Judge- Auditors decided to change the allo- Rapporteur and the views of the cation of posts provided for in the Advocate General, the Court (Second budget as between the President's Sector Chamber) decided to open the oral and the Staff and Operational Ex- procedure without any preparatory penditure Sector. Pursuant to that inquiry.

JUDGMENT OF 21. 6. 1984 — CASE 69/83

However, the Court requested the (b) annul the decision of the defendant to produce the minutes of the President of the Court of meeting held by the Court of Auditors Auditors of 14 April 1983 on Thursday 24 March 1983 or, at the changing the applicant's very least, a certified copy of the passage posting and assigning him to in the minutes relating to the allocation the Staff and Operational of posts as between the President's Expenditure Sector; Sector and the Staff and Operational Expenditure Sector and, in particular, to (c) annul the decision of 27 April the transfer of a post of principal legal 1983 rejecting his complaint administrator from the President's Sector in that regard; to the Staff and Operational Expenditure (d) order the defendant to pay Sector. The Court also asked the the costs; defendant for a description of the duties performed by the applicant before and B. In the alternative, after his reassignment and for a 1. Declare the application admiss- description of the duties performed by ible; Mr Marty-Gauquié as from 14 April 2. Before considering the substance 1983. of the case, and by way of The Court also summoned Jean-Aimé measures of inquiry, order the Stoll, Secretary General of the Court of production of the documents Auditors, and Gérald Coget, Head of referred to in the application and the Staff Expenditure Division, to appear summon Jean : Äimé Stoli, Albert at the hearing in order to answer any Leicht and Gerald Coget to give questions which the Court might wish to oral evidence concerning the put to them. points referred to in the ap- plication.

the Court of Auditors; lack of powers determine the structure of its depart­ and disregard of the rules and general ments. It shall allocate the posts among principles of law, in particular the the sectors." Accordingly, the adoption principle patere legem quam ipse fecisti of the decision of 24 March 1983 and the principle "donner et retenir ne transferring a post of principal ad­ vaut" ministrator provided for in the budget from one sector to another was a matter for the Court of Auditors, whereas the adoption of the decision of 14 April 1983, assigning the applicant to the Staff The applicant maintains that in circum­ and Operational Expenditure Sector was stances such as those of the present case, a matter for the President of the Court in which a post is held by an official, it is of Auditors, acting in his capacity as clear from all the provisions referred to appointing authority. above that it is not for the Court of Auditors as a body to change the allo­ cation of posts as between sectors, but The first submission is based simply on for the President of the Court of the confusion by the applicant of the Auditors to do so, acting in his capacity "allocation of posts provided for in the as appointing authority. It is clear that budget" with the "posting of officials". the post transferred is in fact held by an According to the defendant, the con­ official, since there is only one post of fusion is attributable to the fact that principal legal administrator at the Court in other institutions the appointing of Auditors, namely that occupied by the authority has the power both to allocate applicant. According to the applicant, the posts provided for in the budget and before the contested decision was to change the posting of officials. adopted by the Court of Auditors, it was Finally, the defendant denies the always the President who decided applicant's contention that all the whether to reallocate a post and the changes in posting prior to the one in holder thereof, that is to say, whether to question were effected by the President reassign an official together with his of the Court of Auditors and it claims post. In those circumstances the Court of that the examples set out in an annex to Auditors is wrong in its contention that the application were concerned with there was first a reallocation of the posts exchanges of postings decided upon as provided for in the budget as between part of the policy of staff mobility; the two sectors and then a decision to exchanges involved officials in the same reassign the applicant. Similarly, the grade and were effected between sectors defendant's statements to the effect that which had corresponding budgetaiy what was involved was a transfer of posts posts at their disposal; that was not so in provided for in the budget and that this case. the post transferred was the only one cor­ responding to the specialism and qualifications of the applicant are irrec­ oncilable. Second submission:

must state the reasons on which it was considerations were conceived after the based. The decision of the Court of decision was taken and are without Auditors dated 24 March 1983 does not foundation since the interests of the state the reasons on which it was based service were not taken into account, as for the simple reason that it was not the applicant intends to demonstrate in notified to him and came to his his fourth submission. knowledge only because it was referred to in the decision of the President of the The defendant maintains first of all that Court of Auditors dated 14 April 1983. the decision of the Court of Auditors of The latter decision does not contain a 24 March 1988 is a general organi- statement of reasons which is sufficient zational measure, which moreover was for legal purposes since it does not state notified to the applicant himself by the why the change in the applicant's posting Secretary of the Court of Auditors.

The decision of 24 March 1983 is a general decision is also unquestionably in the decision because, first of all, at the interests of the applicant from the point express request of the President, the of view of both his ability to perform the Secretary of the Court of Auditors tasks which will be entrusted to him — personally informed the applicant of the since he has always held himself out also decision and, secondly, if the defendant's as a specialist in the verification of arguments were correct, every decision the legality of staff and operational reassigning an official together with his expenditure as well as in budgetary and post would be of general application and financial law •—• and the opportunities would not therefore have to be notified for advancement in the sector in in writing to the official concerned. As question.

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2475). Finally, the applicant claims that the situation is temporary inasmuch as it would be difficult for him in the long Third submission: term to perform his legal duties in an auditing sector in view of the working method, known as the systems-based Infringement of Articles 4, 7 and 29 of approach, which is practised at the Court the Staff Regulations, breach of the rules of Auditors. and general principles of law, in particular those governing the re- assigment of an official together with his post and the principles of sound The defendant is therefore faced with a administration and consistent internal dilemma. Either it entrusts the applicant organization with auditing tasks, in which case there is a substantial change in his duties and the reassignment of the applicant together with his post is unlawful, or else The applicant reaffirms that the re- it entrusts the applicant with legal duties, assignment of the applicant together with in which case his presence in the sector his post is unlawful, since it necessarily to which he has been transferred serves involves in the present case, contrary to no useful purpose, his tasks there are the essential purpose of such a lacking in substance and his reassignment reassignment, a substantial change in the is therefore unlawful, as is clear from the duties of the applicant, inasmuch as he Court's judgment of 9 July 1981 in was transferred from an administrative Joined Cases 59 and 129/80, Turner, sector to an auditing sector.

In that time the Member in charge of the connection, the defendant observes that auditing sector in question, and Mr in 1978, in his capacity as administrator Coget, the applicant's new head of in the auditing sector of which Mr Leicht division, told him that they needed an was in charge, the applicant was auditor and not a lawyer, secondly, in involved, at least to a certain extent, in the fact that in the first six months in his carrying out audits.

JUDGMENT OF 21. 6. 1984 — CASE 69/83

training and experience, he is not general principles of law, in particular manifestly unsuited to the tasks entrusted the principle of sound administration and to him, and the Turner, judgment is the principle that every administrative therefore inapplicable in the present case. measure must be based on legally The defendant also states in this acceptable grounds, that is to say connection that the assessment of an consistent and relevant grounds which official's abilities is a matter for the are not vitiated by errors of fact or law administration. or both

Finally, as regards the applicant's Next, the applicant observes that he contention that his work is lacking in lacks the necessary qualifications to substance, the defendant considers that apply for a post in an auditing sector he seriously underestimates certain of the since the relevant vacancy notices always duties and obligations incumbent upon require at least six year's auditing him and is surprised that, in spite of his experience. Consequently, it cannot be obligations under the Staff Regulations, in the interests of the service for the he boasts of his scant activity and bases applicant to be entrusted with tasks his arguments upon it. for which he lacks the necessary qualifications.

Fourth submission: Finally, the applicant contests the Infringement of Article 7 (1) of the Staff defendant's reasoning on the following Regulations and breach of the rules and grounds :

LUX /COURT OF AUDITORS

As regards the increase in the workload Fourthly, before the decision to reassign of the Legal Department — which in the the applicant together with his post was applicant's view justified his retention in adopted, no comparative assessment was that department — the defendant agrees made of the requirements of the that, whilst that state of affairs cannot be department in question since, according disputed, it is to a large extent attri- to the applicant, that question was not butable to the actions which the even on the agenda of the meeting held applicant has himself brought before the by the Court of Auditors on 24 March Court of Justice and which he cannot 1983 and was not discussed at all at that therefore deal with. meeting.

Finally, the defendant emphasizes that, The defendant maintains essentially that although the purpose of the Staff Regu- the allocation of its staff and the decision lations is to guarantee an official the to allocate a post of lawyer to the Staff grade which he has reached and a post and Operational Expenditure Sector are corresponding to that grade, it docs not matters falling within its absolute entitle him to a specific post. Similarly, discretion. Furthermore, the assignment an official cannot rely on his personal of a lawyer to that sector is clearly in the interest in order to prevent the adoption

JUDGMENT OF 21. 6. 1984 — CASE 69/83

That presumption is supported, accord- The defendant maintains that the ap- ing to the applicant, by several factors : plicant underestimates the wide margin of discretion conferred upon the ap- In 1982 the President of the Court of pointing authority by the Staff Regu- Auditors requested Mr Stoll on two lations and confirmed by the decisions of occasions to inform the applicant that he the Court of Justice. Furthermore, it would be transferred to another de- emphasizes that, as it has shown, the partment unless he withdrew two actions contested decisions are in the interests which he had brought before the Court of the service and of the applicant of Justice. and cannot therefore be regarded as constituting a misuse of procedure or of powers. On 7 October 1982 Mr Marty-Gauquié was recruited as a temporary servant, officially as a replacement for Mr The defendant considers that the factors Ruppert, and was seconded to the office relied upon by the applicant call for the of the President of the Court of following observations: Auditors, although the President had made it clear to him that he would As regards the threat of a transfer, the be required to deal with other ad- defendant emphasizes that the President ministrative and legal matters. It was Mr and the Secretary of the Court of Marty-Gauquié who took the applicant's Auditors often have informal and place in the Legal Department. confidential discussions and that, in those circumstances, even on the On 9 March 1983 the President of the assumption that the President had Court of Auditors severely criticized Mr expressed the views imputed to him by

The defendant recalled the reasons for As regards the contention that the the reassignment of the applicant to the President criticized the applicant on 9 Staff and Operational Expenditure March 1983, such criticism was neither Sector and stated that, in that sector, he severe nor directed against the applicant. was responsible for the following Nor could it have been directed against matters: him since it was concerned with work in which the applicant had not participated. Acting as legal adviser to the division: In that capacity he was entrusted with several matters on which legal studies V — R e p l i e s to the q u e s t i o n put were to be undertaken. by t h e C o u r t Expediting auditing tasks involving legal matters: In that capacity he was In response to the Court's request to entrusted with the task of carrying out submit a description of the duties an inquiry into the payment of performed by the applicant before and dependent child allowances and into ad after his transfer and of those performed personam grades. Furthermore, in the by Mr Marty-Gauquié as from 14 April first months of the 1984 financial year, 1983, the defendant points out in the first he was entrusted with the task of place that it is not the policy of the carrying out an inquiry into the Court of Auditors to describe the tasks employment by the Joint Research of its officials but only the posts Centre at Ispra of certain staff not provided for in the budget. subject either to the Staff Regulations oi- to the Conditions of Employment of Other Servants. Subject to that proviso, the defendant gave a description of both the duties performed by the applicant and those Undertaking legal studies from time to performed by Mr Marty-Gauquié. time in connection with audits in progress or in preparation within the sector: In that capacity he was entrusted The defendant states that, when the with the preparation of an inquiry into applicant was assigned to the Secretariat "Di appalto" contracts, a study of the

legal status of the sickness insurance applicant's place in the department scheme and a comparative study of the responsible for the legal affairs of the presentation by the various institutions of Court of Auditors but merely placed his staff tables for the general budget. legal skills at the disposal of the President's Sector and of the Secretary of the Court. As regards the duties performed by Mr Marty-Gauquié from 14 April 1983, the defendant recalls that, in his internal Taking the view that the Court of memorandum of the same date, the Auditors did not confine itself to giving a President of the Court of Auditors had description of the duties performed by expressly stated that Mr Marty-Gauquié Mr Lux and Mr Marty-Gauquié, the was to "assist Mr Stoll in his duties as applicant requested and obtained the legal adviser, whilst continuing as far Court's permission to express his own as possible to assist Mr Ruppert in view in that regard. monitoring relations with the other institutions". After again reminding the Court that he was initially assigned to an administrative According to the defendant, the duties of sector, and not to an auditing sector, and Mr Marty-Gauquié, whose principal task was then reassigned to the President's still consists in dealing with "institutional Sector, and not to the Secretariat of relations", which requires him regularly the Court of Auditors, the applicant to attend meetings of the various bodies emphasized that whilst he was working , dealing with matters concerning the in the Legal Department he brought only budget, were merely extended. Further- one action before the Court of Justice, more, after 15 April 1983, Mr Marty- which was concerned merely with his Gauquié travelled to Brussels, Strasbourg classification. and Paris on 11 separate occasions and spent 24 days on mission. As regards the duties performed by him since his reassignment, the applicant maintained that the work programme for Mr Marty-Gauquié is also responsible 1983 adopted by the Court of Auditors for dealing with the "external relations" did not assign to his division (Staff of the Court of Auditors, a task which Expenditure) a single matter requiring a consists in the organization of meetings legal study to be undertaken. Such to provide information on the activities studies were not carried out until later of the Court, "in response to the requirements of the case". The matters referred to by the defendant came within the scope of Finally, since 15 April 1983, M r Marty- the tasks performed by the Legal Gauquié has also assisted Mr Stoll in his Department. Furthermore, the applicant capacity as legal adviser by taking part made the following observations con- in meetings of inter-institutional and cerning those matters: Community bodies and by helping the legal adviser to draft certain memoranda setting out his opinion. As regards the study concerning the dependent child allowance, the applicant drew up a report and, following an According to the defendant, therefore, exchange of views with his head of Mr Marty-Gauquié did not take the division, the latter informed him on 23

The post formerly held by Mr Marty- Finally, the applicant was asked for an Gauquié, which had once been filled by opinion on two occasions, although he Mr Ruppert, was now held by Mr was unable to deal with one request since Gentin. According to the applicant, it was not sufficiently precise. therefore, Mr Marty-Gauquié's posting was "changed following the adoption of, and in accordance with, the contested As far as the applicant's work in 1984 is decisions to enable him to take the concerned, the study on "Di appalto" applicant's place in the Legal De- contracts did not constitute legal work partment". The applicant contended in connected with the auditing task that regard that since 15 April 1983 Mr entrusted to the applicant's division Marty-Gauquié had essentially devoted (Staff Expenditure). Moreover, it would himself to his duties within the Legal have been more appropriate to assign Department whilst Mr Gentin had been that task to a specialist in Italian law entrusted with responsibility for who was able to speak Italian. As regards institutional relations and for external the subject proposed in the programme relations. from July, namely a compilation of cate- gories of Community staff, the applicant considered it to be somewhat ques- tionable. VI — Oral procedure

The applicant made the following re- marks as regards Mr Marty-Gauquiés duties: At the sitting on 22 March 1984, the Court first of all heard the replies given by Mr Stoll and Mr Cogct to certain When the applicant was reassigned, a questions put to them by the Court and post of administrator was simultaneously by the applicant. Subsequently, the transferred from the Staff and Oper- parties presented oral argument and ational Expenditure Sector to the replied to questions put to them by the President's Sector. Court.

4 It appears from the file on the case that, after performing the duties of administrator in the Legal Department of the Commission from 25 June 1973 to 1 August 1978, the applicant was appointed to a post of administrator at the Court of Auditors. In that post he was obliged initially to perform both administrative and auditing duties. Subsequently, with effect from 20 January 1980, he was appointed as an administrator in the Legal Department, which was transferred on 15 January 1981 to the President's Sector, of which it still forms part.

5 The applicant held that post until the adoption of the contested decision of 14 April 1983 assigning him to the Staff and Operational Expenditure Sector, which is an auditing sector.

6 In support of his application, the applicant puts forward five submissions: lack of power of the Court of Auditors to adopt the decision of 24 March

LUX /COURT OF AUDITORS

1983; inadequate statement of the reasons on which the decision was based; infringement of the guarantees provided for by Articles 4, 7 and 29 of the Staff Regulations of Officials inasmuch as the Court of Auditors may not reassign an official where the reassignment involves a substantial change in his duties, as in the present case; disregard of the interests of the service, contrary to Article 7 of the Staff Regulations; and, finally, misuse of powers.

7 It is clear from the documents relating to the case and from the views expressed at the hearing that the parties were essentially divided on two issues, namely whether the defendant was empowered to adopt the contested decisions and whether, in adopting those decisions, it observed the rights and guarantees conferred on officials by the Staff Regulations and the case-law of the Court.

"Article 13 : Organization of departments

The Court shall determine the structure of its departments. It shall allocate the posts among the sectors."

The Court of Auditors has also stated, according to the minutes of the meeting held on 21 January 1982, that as regards the allocation of posts provided for in the budget it "has decided not to derogate in any way from Article 13 of its Rules of Procedure, according to which it shall itself allocate the posts provided for in the budget among the sectors".

12 There is no doubt therefore that the transfer was carried out in accordance with the Rules of Procedure of the Court of Auditors, since first the Court adopted the decision to transfer a post from the President's Sector to the Staff and Operational Expenditure Sector and, subsequently, the President, acting in his capacity as appointing authority, appointed'the applicant to that post.

13 Accordingly, the submission to the effect that the Court of Auditors was not empowered to adopt the decision of 24 March 1983 must be rejected.

O b s e r v a n c e of t h e g u a r a n t e e s given to officials

18 The applicant's submissions must therefore be considered in the light of these principles.

I n t e r e s t s of t h e s e r v i c e

19 According to the applicant, the interests of the service demand that he should not be moved from the Legal Department at a time when the workload of that department is particularly heavy and the Staff and Operational Expenditure Sector does not require an additional lawyer; that is particularly true since he personally lacks the necessary qualifications for assignment to an auditing sector.

20 That argument cannot be accepted. Not only does the Court of Auditors have complete discretion with regard to the posting of the staff at its disposal, but it is also clear from the file on the case and, in particular, from the statements made at the hearing that it was the Member responsible for the Staff and Operational Expenditure Sector who requested the allocation of a post of lawyer to that sector. It is also clear from the file that in the period between the date on which he entered the service of the Court of Auditors at the end of 1978 and 20 January 1980, when he was appointed to a post in the Legal Department, the applicant had already been assigned to the same auditing sector as that to which he has now been reassigned.

21 Furthermore, reference must also be made to the distinctive nature of the Court of Auditors. In order to cany out its audits the Court of Auditors has

JUDGMENT OF 21. 6. 1984 — CASE 69/83

25 In that regard, it is appropriate to refer in the first place to the remarks made earlier concerning the distinctive organization of the Court of Auditors, which entails the rejection of the distinction between legal duties and auditing duties, and the fact that the applicant had already worked in the same auditing sector in the past.

LUX/COURT OF AUDITORS

26 Moreover, it is clear from the file on the case and in particular from the statements made at the hearing that the tasks assigned to Mr Lux are by no means insignificant and that, on the contrary, it was the applicant who initially failed to show in his work the willingness and enthusiasm which an institution is entitled to expect from a responsible official.

27 Therefore, in the light of the foregoing considerations, the applicant's third and fourth submissions must be rejected.

M i s u s e of p o w e r s

28 In support of this submission, the applicant maintains that the contested decisions constitute a disguised disciplinary measure inasmuch as in 1982 the President of the Court of Auditors allegedly made it clear to him that he might be transferred to another department unless he withdrew two actions which he had brought before the Court of Justice. That intention was confirmed by the recruitment of a temporary servant who, according to the applicant, was to take his place in the Legal Department and by the fact that the President had criticized him in connection with two memoranda concerning a recommendation to "proceed with the matter in any event".

33 The defendant contends that the decision of 24 March 1983 did not have to state the reasons on which it was based since it was a general decision. It maintains that the decision adopted by the appointing authority, on the other hand, did state the reasons on which it was based, albeit concisely, by virtue of the reference to the interests of the service and to those of the applicant and that, in the circumstances, the reasons stated were sufficient.

34 Since the measure at issue in the present case is concerned with departmental organization and was adopted, as has been shown above, in the interests of the service and in conformity with the principle of assignment to an equivalent post, the duty to state the reasons on which it was based must be viewed in the light of the discretionary power enjoyed by the appointing authority in this area and the incidental nature of the disadvantages which such a measure may entail for the official concerned.

35 Although the internal organization of the Court of Auditors made it necessary to resort, for the transfer of the post in question, to a procedure involving first a decision by the Court of Auditors as a collegiate body and then a decision by the appointing authority, the distinctive nature of that internal organization cannot justify a derogation from the requirements laid down by the second paragraph of Article 25 of the Staff Regulations, which provides that any decision adversely affecting an official must state the grounds on which it is based.

36 Thus, the reasons stated in the decision of the appointing authority of 14 April 1980, viewed in themselves, are clearly insufficient. However, in order to decide whether the requirements of Article 25 have been satisfied, it is appropriate to take into consideration not only the contested decision but also the circumstances surrounding its adoption. Since the purpose of the

40 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.

41 However, under Article 69 (3) of the Rules of Procedure, the Court may order even a successful party to pay costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur. In this case, the Court of Auditors, by failing to provide the applicant with a proper and express statement of the reasons for his transfer, contributed to a very large extent to the dispute which gave rise to this action. In those circumstances, the defendant must be ordered to pay the costs.

OPINION OF MR VERLOREN VAN THEMAAT — CASE 69/83

O n those g r o u n d s ,

T H E C O U R T (Second C h a m b e r )

hereby:

Mr President, an action complaining of his reas- Members of the Court, signment from the Legal Department to the Staff and Operational Expenditure 1. Introduction Sector, which is an auditing sector. The In this case, Mr Lux, an official in Grade applicant asks the Court to annul the A 5 at the Court of Auditors has brought decision of the Court of Auditors of 24

1 — Translated from the Dutch.