C-23/87
ECLI:EU:C:1988:336
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ALDINGER AND ANOTHER v PARLIAMENT
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 22 June 1988
My Lords, September 1986 and Mrs Virgili's similar letter of 17 September 1986, the date for the transfer was confirmed.
Mrs Aldinger and Mrs Virgili are temporary agents of the European Communities who work for the Group of the European The Court by Order of 22 June 1987 (ECR People's Party ('the PPE group') of the 2841 and 2847) suspended the implemen European Parliament. Their contracts of tation of the contested decisions in so far as employment, signed on 8 May 1981 and they provided for the transfer of the 1 April 1981 respectively, specified applicants to Brussels on 1 July 1987, Luxembourg as the place of employment. pending the determination of the cases. They work with certain committees of the Parliament, which for several years now have met almost exclusively in Brussels.
The Parliament objects that these actions are inadmissible. The letters of 7 September and 17 September 1986 are, the Parliament Following a series of discussions in 1984, claims, merely administrative requests under the Bureau of the PPE group decided to Article 90 (1) of the Staff Regulations, transfer a number of personnel working rather than administrative complaints under with those committees, including the Article 90 (2) (applicable by analogy to applicants, to Brussels. Mrs Aldinger and temporary agents by virtue of Article 46 of Mrs Virgili did not and do not wish to go. the Conditions of Employment of Other By the present applications, lodged at the Servants of the European Communities ('the Court on 28 January 1987, they seek the Conditions of Employment')). If that is annulment of various general decisions of right, the absence of administrative the PPE group concerning the intention to complaints before the applications were establish the majority of the group's acti lodged with the Court renders the actions vities in Brussels; the annulment of two inadmissible. In my view, however, those individual decisions, addressed respectively letters contain the necessary elements to be to Mrs Aldinger and Mrs Virgili, informing considered as complaints under Article them of those general decisions and setting 90 (2); and the content of the decisions 1 July 1987 as the date for their transfer to taken by the President of the PPE group in Brussels; and the annulment of two his responses of 29 October 1986 confirms decisions of the President of the PPE group that the letters should be interpreted in that in which, in reply to Mrs Aldinger's letter to way. I do not consider that these the Secretary-General of the group of 7 applications are inadmissible in toto.
OPINION OF SIR GORDON SLYNN — JOINED CASES 23 AND 24/87
However, and without reading them too ferred a reasonable time to make their strictly, it seems to me that what is arrangements, and that within limits complained about in these letters is not the dictated by the demands of the service transfer as such, but the time of transfer. personal circumstances should be taken into They wanted the date put back. Mrs account. Aldinger spoke of 'the particularly serious problem that would be caused by leaving Luxembourg for Brussels on the date indicated' and Mrs Virgili requested 'that the date for transfer be put back' explaining that 'my complaint is not against the transfer itself but rather to obtain a On the other hand, the employment of sufficient delay to solve certain family temporary agents is subject to termination problems'. In so far as they seek in these on three months notice and if the two actions to set aside the transfer in toto, they applicants had been told that their contracts go beyond the grounds relied on in the were to be terminated at the end of that complaints. To that extent the applications period if they did not wish to go, they could are inadmissible (see Case 242/85 Geist v in law have had no grounds for complaint. Commission, judgment of 20 May 1987 Moreover the transfer had been mooted at ECR 2181, paragraph 9). least from 1984 and personnel knew that one day those working with the committees would have to transfer. In the event even when the final notice was given they had a further year to prepare. That seems to me a Accordingly, in my view, the cases are fair, even a generous, period of notice as a general rule. admissible only in so far as they contest the validity of the date chosen for the transfer.
The decision to transfer certain personnel, It is said, however, that the present two including the applicants, was confirmed by applicants were under particular difficulties the President of the PPE group at a meeting which were not taken into account. Mrs held on 17 June 1986 but it was decided, inter alia for social reasons, to defer the Aldinger was expecting a baby which would implementation of that decision until July only be four months old at the date of 1987. The transfer was again confirmed by transfer and her husband's contract of the President of the PPE group on 1 July employment in Luxembourg would not 1986, at which time it was expressly stated come to an end until the beginning of 1989. that 'to take full account of the social Mrs Virgili's husband was employed as a problems of the persons concerned, and in freelance with the Office of Publications, particular educational problems, the transfer had been seeking a post as an official for will take place in July 1987'. four years, and was due to take a compe tition in December 1987. These are matters to take into account but on balance, in the light of the needs of the service, it seems to me that they were not in all the circum stances such as to oblige the Parliament to It was obviously fair to expect that the give a further extension. The moment had Parliament would give those to be trans to come when each had to decide whether
ALDINGER AND ANOTHER v PARLIAMENT
husband and wife would both stay in have accepted that the specification of Luxembourg (the wife looking for another Luxembourg as the place of employment in job), both go to Brussels, or one commute their letters of appointment meant that they weekly to Luxembourg or Brussels. could never be transferred elsewhere. Some place has to be specified ab initio, but by Article 7 of the Staff Regulations: '1 . The appointing authority shall, acting solely in the interests of the service ... , assign each official by appointment or transfer to a post I do not accept that their individual circum in his category or service which corresponds stances were not taken into account. True to his grade'. That article applies to the replies to their complaints from the temporary agents by virtue of Article 10 of President of the PPE group were couched the Conditions of Employment applicable to in general terms and did not deal speci such agents. fically with their personal circumstances but those replies state that the file had been re-examined. The facts had already been drawn to the attention of those responsible both orally and in writing. I reject the suggestion that the replies were a mere Although it might be better to specify formality and that the individual cases were initially the place of work as 'X or such not properly looked at. other place or places as the needs of the service may require', it does not seem to me that it is not possible to require a transfer when only one place is specified. The meetings of the committees had for years taken place in Brussels. The transfer of the The applicants have in any event had a applicants can, in all the circumstances, further year by virtue of the Court's interim fairly be described as being 'in conformity order and I see no reason to reject the PPE with requirements relating to the rationali group's statement that even though the zation and effectiveness of the servicing of finance and research departments are still parliamentary work' (letter from the here there is no vacancy for either applicant President of the PPE group to each in Luxembourg. applicant dated 29 October 1986) and to be in the interests of the service. The alter native, if the transfer was unacceptable, was for the Parliament or the applicant to terminate the employment on three months Accordingly, in my opinion, these notice (see Case 25/68 Schertzer v applications should be dismissed and I Parliament [1977] ECR 1729 at paragraphs would order that each party should pay its 25 and 38 to 40). own costs pursuant to Article 70 of the Court's Rules of Procedure.
This view seems to me to be entirely in accordance with the Court's decision in Had I come to the view that these Case 61/76 (Geist v Commission [1977] applications were admissible so as to ECR 1419); if anything the desirability of challenge the transfer in toto, I would not the transfer in the light of the needs of the
OPINION OF SIR GORDON SLYNN - JOINED CASES 23 AND 24/87
service in these cases is even more clearly (iv) the decision of the Secretary-General established than in Geist. of the PPE group of 16 July 1986, in so far as it is a decision rather than a mere notification, is void because ultra vires the official concerned; Accordingly, I would hold that, despite the presence of the clause stipulating Luxembourg as the place of performance of duties in the contracts of employment, the Parliament was entitled in principle to decide upon the transfer of the applicants to (v) the decision of the President of the Brussels. PPE group of 29 October 1986 rejecting the applicants' letters of formal complaint is unlawful, because it was adopted without any authority and in breach of the previous decision The applicants then claim that: of 16 July 1986.
(i) the decision of the PPE group of June 1984 is unlawful, not being adopted by I accept the Parliament's contention that the competent authority as defined by only the decisions of the President of the Article 10 of the internal rules of the PPE group dated 17 June 1986 and 1 July PPE group; 1986 are decisions open to review by the Court. The '1984 decision' is no more than a statement of intention or of principle.
(ii) the decision of the Bureau of the PPE group of 10 July 1985 is void ab initio because (the applicants say) it was based upon an untruthful statement by the President of the PPE group that The decision of 10 July 1985 which is also the persons concerned consented to no more than a general decision has given their transfer to Brussels and because rise to allegations of misinformation as to the number of Vice-presidents in the the willingness of the personnel concerned Bureau exceeded the number indicated to transfer to Brussels. In my view, it is in Article 11 of the internal rules of the clear, however, that at that stage no indi PPE group; vidual decisions had been taken and that there was therefore no 'act adversely affecting' the applicants within the meaning of Article 91 of the Staff Regulations (see Case 124/78 List v Commission [1979] ECR (iii) the decisions of the President of the 2499, at p. 2510, paragraph 5, and the PPE group dated 17 June 1986 and 1 Opinion of Advocate General Mayras in July 1986 are also void ab initio, being Joined Cases 33 and 75/79 Kuhner v adopted by an improperly constituted Commission [1980] ECR 1677, at p. 1702). authority and are vitiated by misuse of There is therefore no need to decide that power, since the President only has point; and the same also applies to the 'five authority to implement decisions of the Vice-presidents' argument concerning the Bureau; composition of the Bureau though as far as
ALDINGER AND ANOTHER v PARLIAMENT
I can see once the number of Vice- transfers between Member States in the presidents was increased from two to five, interests of the service (see also Case 69/83 Article 11 is to be read as permitting all five Lux v Court of Auditors [1984] ECR 2447, to participate. The participation of five at p. 2463, paragraphs 17 and 20). In my rather than two is in any event inherently view, as already stated, family interests were more likely to produce a situation where taken into account: they cannot be one or more voices would be in favour of conclusive. the applicants.
The applicants further claim that the It seems to me also clear that the letter from contested decisions were taken without the Secretary-General of the PPE group prior consultation of the Joint Committee. dated 16 July 1986 is merely a notification That appears, from the documents of a previous decision. submitted to the Court, to be directly contradicted by the evidence.
So far as the decisions of the President of the PPE group of 17 June 1986 and 1 July While it is clearly desirable that transfers 1986 are concerned, I consider that Article should be made with the willing consent of 10 of the PPE group's internal rules of those affected, in the end the interests of the procedure gives the Bureau the necessary service must prevail (see Case 61/76 Geist); power to take decisions and that the alle and I do not regard the administration's gations of procedural irregularity are not statement stressing the desirability of borne out by the evidence. transfers with consent as stopping it from making the present transfers.
Finally, the decision of the President of the PPE group of 29 October 1986 seems to me to fall squarely within the powers conferred The applicants further allege that the on the Presidency by Article 12 of the PPE decisions to transfer them were taken group's internal rules of procedure. without the prior hearing of the persons concerned required by Article 38 of the Staff Regulations. It seems to me that even if that Article applies by analogy (which at present I am not satisfied is necessarily the The applicants claim that the contested case) the applicants had a fair and decisions were taken without respecting the reasonable opportunity to make their views principle of encouraging the compatibility of known. family and professional duties set out in the Parliament's own documents. The document cited refers to the day-to-day management of family and professional duties leaving aside the requirements of the service. It Finally, the applicants argue that the cannot be taken to override the judgment of contested decisions did not take account of the Court in Case 61/76 Geist concerning the criteria of rationalization and effec-
OPINION OF SIR GORDON SLYNN — JOINED CASES 23 AND 24/87
tiveness of the service in choosing which may have been a temporary phenomenon personnel were to be transferred. Some whilst the move was in progress. The overall committee members were without assistants aim was the transfer of cohesive groups of in Brussels, some assistants without personnel. I therefore consider this ground, committee members in Luxembourg. This too, to be unfounded.
Therefore, even if these other arguments are admissible, I consider that these applications should be dismissed and that each party should pay its own costs pursuant to Article 70 of the Court's Rules of Procedure.