C-19/87

(a) The memorandum dated 3 January 1986 4. Article 5 (4) of the Staff Regulations from the Director for Administration to provides that: 'A table showing basic posts the Head of the Buildings and and corresponding career brackets is given Equipment Management Department, in in Annex I. By reference to this table each institution shall . . . define the duties and which it was decided in principle to powers attaching to each basic post'. 'remove the applicant from the buildings sector and give him responsibility for heating and sanitation in the new buildings occupied or to be occupied by 5. According to Article 7 (1), 'The the Commission from December 1984'; appointing authority shall, acting solely in the interest of the service and without regard to nationality, assign each official by (b) The decision of the head of department appointment or transfer to a post in his responsible, dated 23 January 1986, category or service which corresponds to his implementing the decision taken in grade'. principle on 3 January 1986 and defining the applicant's new duties, together with three subsequent memoranda defining in detail the scope 6. The applicant considers that his new of those duties or confirming the duties do not correspond to his grade. The previous decisions; fact that he now has to work alone, without

* Translated from the French.

HECQ v COMMISSION

9. It must therefore be considered whether 8. The Court has consistently held that the the new duties and responsibilities entrusted higher authority alone is responsible for the to the applicant, taken together, fall clearly organization of the departments, which it short of those of a senior technical assistant must be able to determine and modify classified in Grade BT 3/2, as set out in the according to the exigencies of the service, Commission Decision of 28 May 1973 6 without prejudice to the rights which containing a description of the duties and officials and other agents enjoy under their powers attaching to the basic posts provided Staff Regulations. 1 In particular, it is clear for in Article 5 (4) of the Staff Regulations. from Articles 5 and 7 of the Staff Regu- Although the Court has accepted that the appointing authority responsible for issuing lations that an official has a right to expect the vacancy (or competition) notice is that the duties which are assigned to him entitled to add to the definition drawn up should as a whole be in keeping with the by the institution the necessary special post which corresponds to the grade which details, having regard to the needs of the he occupies in the scale of posts. 2 With- service, 7it has also held that the rule that drawing from an official one or more of the the post must correspond to the grade, set departments for which he was previously out in particular in Article 7 of the Staff responsible may in certain circumstances Regulations, involves, in the event of a amount to an infringement of this right. 3 change in the duties of an official, a Although a difference in the powers of the comparison between his present duties and various posts in a grade might justify a

'B 2 — B 3 : Senior Administrative Assistant — Official — coordinating the work of a team of technicians in the Heating and Sani- tation Section. ' 9

— in charge of a section of an adminis- trative unit; 12. The description of the duties entrusted to the applicant after he was reassigned with effect from 1 February 1986 is as follows: — engaged in administrative tasks involving, where appropriate, the inter- 'In the air-conditioning, heating and sani- pretation of regulations and general tation sectors: instructions;

— supervising the carrying out of contracts concluded with outside firms for the — engaged in carrying out difficult and maintenance and improvement of complex tasks in the light of general buildings and the technical installations directives.' therein;

13. First of all, it is clear from a comparison therefore be regarded as being in charge of of these different descriptions that in the a 'section' of that administrative unit. B 3 post to which Mr Hecq was appointed with effect from 1 February 1984, a post which he accepted without reservation, he was already responsible for both the heating and sanitation sectors. It is therefore 16. The question whether or not he should difficult to understand why two years later be assisted in his duties by others depends he complains that he must now take respon- upon the burden which that work entails. It sibility for both these sectors at once. is for his superiors to decide the number of buildings in which one person can reasonably be expected to be responsible for both heating and sanitation. Originally, the Director for Administration had entrusted six buildings to Mr Hecq (memorandum 14. Secondly, it is undeniable that the dated 5 March 1986). From 24 March 1986 description of the basic post of a senior that number was reduced to five. Finally, assistant in career bracket B 3/2 states that when at the end of 1986 or the beginning of the person concerned should be in charge of 1987 the building situated in the Square du a 'section of an administrative unit'. It Frère Orban was removed from the remains to be ascertained whether that applicant's charge, he submitted a complaint expression necessarily means that the holder under Article 90 (2) of the Staff Regulations of such a post must have persons working (followed by an application to the Court, under him or be responsible for 'coordi- Case 280/87), in which he stated as follows: nating the work of a team of technicians', as was stated in the vacancy notice for the post to which Mr Hecq was appointed in 1984.

on the basis of general directives'. Responsi- 23. As regards that part of the new bility for a section of an administrative unit description of the applicant's duties which is therefore a characteristic inherent not in requires him to supervise 'the carrying out Grade B 3/2 but in the post of a senior of contracts concluded with outside firms administrative assistant. for the maintenance and improvement of buildings and the technical installations therein', it must be confirmed that this corresponds exactly to the definition which appeared in the previous description, which 19. The applicant also complains that in the referred to 'supervising work carried out by description of his new duties his responsi- firms responsible for operating and main- bility for studies carried out within the taining technical and heating instal- department was reduced since the 1984 lations . . . and supervising the carrying out vacancy notice referred to 'advising and of work on heating and sanitary instal- preparing requests for tenders . . . ', whereas lations'. the description of his new duties mentions 'participating in studies carried out within the department, in drawing up files for consulting undertakings and analysing tenders received and drafting contracts'. 24. The fact that an official in a lower grade (namely D 3) was also required inter alia to undertake such supervision seems inevitable in a department which is 20. It is clear from a reading of the responsible not for itself carrying out main- description of the various basic posts that it tenance or improvement work but for super- is the head of division who is responsible for vising work carried out by private firms. advice or supervision under the authority of a director-general or director.

27. It is difficult to understand the (a) Complaint based on the absence of a applicant's reasoning in this regard since statement of grounds under this head he is in fact asking to be treated in the same way as officials in a grade lower than his own (namely two 30. The applicant complains that the B 4s, one D 1 and three D 3s). It is certain decision adopted relating to him did not that equal treatment must be assessed by satisfy the requirement of a statement of reference to the responsibilities of officials grounds laid down in the second paragraph in the same grade. The fact that Mr Hecq is of Article 25 of the Staff Regulations. required to take sole charge of new buildings in two sectors, heating and sani- 31. The Court has recognized in its tation, in my view shows that the judgments that, since the purpose of the Commission took care, on the contrary, to duty to state the grounds on which a assign him duties of some importance and decision is based is both to permit the some complexity, in keeping with his person concerned to determine whether the experience, which could not have been decision is defective, making it possible for given to officials in a lower grade. its legality to be challenged, and to enable it Moreover, that was acknowledged by the to be reviewed by the Court, it follows that applicant himself in his complaint the extent of that obligation must be concerning the building in the Square du determined on the basis of the particular Frère Orban to which I have already facts of each case. 10 The Court has also referred. held that 'in order to decide whether the requirements of Article 25 relating to a statement of reasons were fulfilled 28. I must therefore conclude that the consideration should be given not only to complaint based on the breach of the the transfer decision itself but also to the principle of equal treatment is also staff memoranda in support thereof which unfounded. were brought to the notice of the person concerned and which clearly informed him of the reasons behind the said decision'. 11

32. In this case the formal decision to (b) The complaint that there was no prior change the applicant's posting was preceded consultation by the memorandum dated 3 January 1986 from the Director for Administration, which was addressed to the head of department 35. It may be regarded as established that concerned and a copy of which was sent to the applicant's comments were not heard the applicant. In that memorandum the either before the decision was taken in Director noted that time was being wasted principle on 3 January 1986 or before the through the exchange of memoranda within formal decision of 23 January 1986 by the Buildings Sector of DG IX. B.5 and which he was reassigned. expressed the desire that the energies and qualities of the officials concerned should instead be devoted to their duties within the 36. The Director for Administration, Mr department; he stated that the best way of Pratley, in his memorandum dated 3 achieving that aim was to remove the January 1986 addressed to Mr de Hoe, applicant from the Buildings Sector and give Head of the Buildings and Equipment him the duties to which I have referred. The Management Department stated as follows: applicant was therefore informed by that 'I am of course prepared to see both Mr memorandum of the reasons for which he Brusset and Mr Hecq at the appropriate was about to be reassigned. Furthermore, it time, but at present I consider that I have is clear from the documents contained in the all the information necessary to take a file, and in particular those produced at the decision'. It has not been alleged, however, Court's request, that the applicant was in that Mr Hecq insisted on an immediate fact the author of a large number of the interview and that his request was refused. memoranda expressing the persistent It may also be thought that Mr Hecq's point disagreements which impeded the proper of view on the subject-matter of the dispute functioning of the service. was well known to the director since a meeting had taken place in July 1985 and all of the memoranda sent by Mr Hecq to Mr Brusset had been transmitted by the latter to Mr Pratley.

38. It is therefore regrettable that Mr (c) Compkint that the applicant's interests Hecq's observations were not heard. It were not taken into account remains to be decided whether any obli- gation was breached in this case. On 41. The applicant also refers to the reflection I consider that in the circum- judgments in which the Court has held that stances of the case it was not. In its the administration's duty to have regard to judgments in Kuhner 14 and Anting the the interests of its staff 'reflects the balance Court held that the administration is bound of the reciprocal rights and obligations to give officials an opportunity of making established by the Staff Regulations in the known their point of view only in the case relationship between the official authority of measures which cause serious detriment and the civil servants. A particular conse- to the official concerned. In other cases, in quence of that duty and of the principle of the absence of an express requirement in the good administration is that when the Staff Regulations, no such obligation exists authority takes a decision concerning the and the formalities prescribed by Article 90 situation of an official it should take into of the Staff Regulations for the protection consideration all the factors which may of the interests of officials must be regarded affect its decision and that when doing so it as adequate, subject to any review by the should take into account not only the Court. interests of the service but also those of the official concerned'. 16

O P I N I O N OF M R M I S C H O — C A S E 19/87

the interests of officials 'cannot prevent the III — Submission based on the infringement authority from undertaking a rationalization of Article 87 of the Staff Regulations and of departments if it believes that this is misuse of powers necessary*. The Court has also consistently held that it cannot substitute its assessment of the interests of the service for that of the appointing authority, but its review must be 47. Lastly, Mr Hecq claims that he was limited to consideration of the question 'subject to a disguised disciplinary measure, whether, having regard to the consider- in so far as his duties were reduced and also ations which have influenced the adminis- the remuneration which he actually received tration in making its assessment, the latter as a result of an allowance for stand-by has remained within reasonable bounds and duty at the place of work was reduced, on has not used its power in a manifestly the ground that he was a union represen- incorrect way. 18 As regards disagreements tative'. There was therefore an infringement between officials in particular, the Court has of Article 87 of the Staff Regulations which held that once it becomes clearly impossible lays down the principle that the most serious to smooth out the differences which have disciplinary measures, such as downgrading, arisen between an official and his superior, may be ordered only in accordance with the the institution is entitled to take any appro- disciplinary procedure provided for in priate steps in order to restore a peaceable Annex IX to the Staff Regulations. atmosphere in the department in question. 19

46. Therefore none of the arguments put forward in support of the second submission may be upheld. 50. As regards the complaint that the remuneration actually received by the 18 — See judgment of 12 February 1987 in Case 233/85 A. applicant was reduced owing to the loss of Bonino v Commission [1987] ECR 739, paragraph 5. the stand-by allowance, it does not seem to 19 — See in this regard judgment of 12 July 1979 in Case 124/78 me to be founded in law. Although the Staff H. List v Commission [1979] ECR 2499, paragraph 13; also judgment of 11 July 1968 in Case 16/67 H. Labeyrie v Regulations are intended to guarantee to an Commission [1968] ECR 293, especially p. 302 (a) first and official the grade he has attained and a post second sentences; judgment of 14 June 1979 in Case 18/78 Mrs V. v Commission [1978] ECR 2093, paragraph 18. corresponding to that grade, they give him 20 — See judgment in H. List v Commission, cited above. no right to any particular post; on the

HECQ v COMMISSION

52. It is in the reply that the applicant states, for the first time, that he was 55. In that regard, however, account should penalized because he was engaged in union activities. There are two possiblities. Either in my view be taken of the following the Commission is wont to 'punish' those of factors : its officials who engage in union activities, and in that case the applicant would have no difficulty in adducing evidence of such conduct on the part of the institution, which — The application is not manifestly inad- he has not done. O r Mr Hecq has attracted missible or manifestly unfounded; 2 3 attention by engaging personally in actions that are in themselves normal for trade 23 — As regards applications that are manifestly unfounded see for example judgment of 10 January 1980 in Case 116/78 R A. Bellintani and Others v Commission [1980] ECR 23; Order of 11 December 1986 in Case 25/86 B. 21 — See judgment of 6 May 1969 in Case 21/68 A. Huybrechli Suss v Commission [1986] ECR 3929; as regards v Commission [1969] ECR 85, paragraph 8; and judgment applications that are manifestly inadmissible, see for of 13 May 1970 in Case 46/69 A. Reinarz v Commission example judgment of 17 March 1983 in Case 252/81 M. [1970] ECR 275, paragraph 5. Macevicius v Parliament [1983] ECR 867; also judgment of 22 — See for example judgment of 21 June 1984 C. Lux v Court 6 October 1983 in Joined Cases 118 to 123/82 M. G. of Auditors, cited above, paragraph 30; similarly, judgment Celant v Commission [1983] ECR 95; judgment of 12 July of 18 June 1987 in Case 307/85 A. Gavanos v Economic 1984 in Case 227/83 S. Moussis v Commission [1984] ECR and Social Committee of the EEC [1987] ECR 2435, 3133; judgment of 21 January 1987 in Case 204/85 V. paragraph 37. Stroghili v Court of Auditors [1987] ECR 389.