C-280/87
ECLI:EU:C:1988:489
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HECQ ν COMMISSION
O P I N I O N OF MR ADVOCATE GENERAL MISCHO delivered on 27 October 1988 *
Mr President, the Buildings Section implemented that Members of the Court, decision on the same day. It is established that the applicant was informed orally of the decision.
1. By your judgment of 23 March 1988 you dismissed the action brought by Mr A. Hecq, a senior technical assistant in Grade 4. I would refer to the Report for the Β 3, against the decision adopted by the Hearing for a fuller account of the facts. I Commission of the European Communities propose to examine in order the three series to 'remove' him from the Buildings section, of complaints on which the applicant founds where he was in charge of a team of tech his application for annulment. nicians, and to give him sole responsibility for heating and sanitation in five new buildings occupied or to be occupied by the Commission (Case 19/87).
I — Breach of the principle of corre- spondence between grades and posts and lack of competence of the official who 2. This Opinion relates to the second action adopted the contested decision brought by Mr Hecq, for the annulment of 'the decision adopted by an unknown person on an unknown date withdrawing from him the responsibility for heating and sanitation in the Commission's building in 5. Article 5 (4) of the Staff Regulations Square Frère Orban, Brussels' (one of the provides: 'A table showing basic posts and five buildings for which he had been given corresponding career brackets is given in responsibility at the beginning of 1986), and Annex I. By reference to this table each 'the implied decision rejecting his complaint institution s h a l l . . . define the duties and submitted through official channels under powers attaching to each basic post'. Article 90 (2) of the Staff Regulations'.
3. In reply to a question put by the Court, 6. The first subparagraph of Article 7 (1) the Commission stated that the decision to provides: 'The appointing authority shall, withdraw responsibility for the 'Orban' acting solely in the interest of the service building from Mr Hecq was adopted on 27 and without regard to nationality, assign January 1987 by the Head of the Buildings each official by appointment or transfer to a Department in the Directorate-General for post in his category or service which corre- Personnel and Administration. The Head of sponds to his grade'.
* Translated from the French.
OPINION OF MR MISCHO —CASE 280/87
7. In the application, the applicant claimed service and in conformity with the principle that 'the measures contested in this of assignment to an equivalent post application are a direct consequence of (judgment of 23 June 1984 in Case 69/83 those contested in application 19/87'. They Lux ν Court of Auditors (1984] ECR 2447). partake of the same illegality (breach of the principle of correspondence between grades and posts) which therefore entails the illegality of the measures 'contested here. Since, by its judgment of 23 March 1988, It is clear from Articles 5 and 7 of the Staff the Court dismissed Mr Hecq's first action, Regulations that an official has the right to the decisions to which it referred cannot expect that the duties which are assigned to be considered to have been illegal. The him should as a whole be in keeping with applicant therefore withdrew that sub the post which corresponds to the grade mission during the hearing. which he occupies in the scale of posts. However, for a measure for the reorgan ization of departments to affect that right adversely, it is not sufficient that it should bring about a change in, or even any 8. In order to pursue my reasoning, diminution of, the official's responsibilities, however, I must consider whether the but it is necessary that, taken together, his decision of the Commission contested in the new responsibilites should fall clearly short present action does not in itself constitute of those corresponding to his grade and an infringement of the two provisions of the post, taking account of their character, their Staff Regulations cited above. importance and their scope'. 1
9. In that regard, I consider that the prin ciples on which the Court based its first 11. It is, however, clear that the modifi judgment also apply in relation to the cation of the applicant's duties is not so reduction in Mr Hecq's responsibilities far-reaching as to mean that his new which took effect on 27 January 1987. responsibilites are not, as a whole, in keeping with the grade which the applicant occupies in the scale of posts.
10. In paragraphs 6 and 7 of the judgment of 23 March 1988, the Court declared, with regard to the submission alleging infringement of Articles 5 and 7 of the Staff 12. The withdrawal of one building from Regulations: the applicant's charge is not as radical a measure as the modification of his duties involved in Case 19/87, nor does it detract in any way from the fact that he has sole responsibility for the buildings remaining in ' . . . it must be pointed out that in its his charge and that he may still be regarded judgments the Court has held that the as being in charge of a section of the Community institutions have a broad administrative unit to which he belongs. In a discretion to organize their departments to memorandum sent on 11 March 1986 to the suit the tasks entrusted to them and to Director for Administration, the applicant in assign staff available to them in the light of such tasks, on condition however that the 1 — Judgment of 23 March 1988 in Case 19/87 Hecą ν staff are assigned in the interests of the Commission [1988] ECR 1681, paragraphs 6 and 7.
HECQ ν COMMISSION
fact pointed out that, in both his own 16. Secondly, the normal powers of Head opinion and that of the Director, four of a Division or Specialized Department buildings constituted a maximum number include, in my view, the power to allocate beyond which 'it would not be reasonably the work of his administrative unit among possible for him to carry out his work the members of its staff. In its judgment of conscientiously and efficiently'. 17 May 1984 in Case 338/82 (Albertini and Montagnani ν Commission [1984] ECR 2123, at pp. 2144 and 2145), the Court also considered an administrative order made by a Head of Division. The Court held that 13. It may therefore be concluded that the such an order was part of the normal applicant's remaining responsibilities still exercise of authority inasmuch as the correspond to the duties of a Senior applicant's position under the Staff Regu Technical Assistant in Grade Β 2 or Β 3 as lations was not adversely affected. We have set out in the Commission decision seen that this is true of the present case. containing a description of the duties and powers attaching to the basic posts provided for in Article 5 (4) of the Staff Regu lations, 2 and that his position under the 17. Finally, the fact that the decision Staff Regulations has not been adversely relating to the reassignment of duties which affected. formed the subject-matter of Case 19/87 was taken by the Director cannot constitute an argument to the contrary. In my view, the principle of parallelism of form could 14. At the hearing, however, the applicant only apply if a previous decision, taken at a made a fresh submission, which he claimed higher level, were to be revoked. In the the Court could examine of its own motion, present case, we have only a partial to the effect that the person who adopted reduction in duties, which had previously the contested decision was not competent to been envisaged by the Director as a future do so. Only the Director for Adminis possibility. tration, and not the Head of the Specialized Department to which Mr Hecq belongs, had the power to withdraw responsibility for a building from him. 18. For all the above reasons, the Head of the Specialized Department was entitled to take the decision, and this submission must therefore be dismissed.
15. I should like to make three remarks with regard to that submission. First of all, in my view, the only issues which the Court II — Failure to have regard to the interests may raise of its own motion are those of the service and to state the grounds on relating to its own lack of competence or which the contested decision was based that of the institution responsible for the measure involved. In the present case, the powers of the Commission as an institution to organize its own services cannot be chal 19. The applicant claims that there has been lenged. an infringement of Article 7 (1) of the Staff Regulations inasmuch as the contested 2 — Decision of 28 May 1973, subsequently amended and published in Staff Notices ΙΛ No 373, of 9.7.1982. decision was not based on the interests of
OPINION OF MR MISCHO — CASE 280/87
the service. It is, moreover, impossible to his post from one administrative unit to ascertain the real object of the decision another). It involves merely a partial redis inasmuch as, being an implied decision, it tribution of the workload within a basic did not state the grounds on which it was administrative unit. As we have just seen based; any administrative measure adversely with regard to the first submission, the affecting an official must state the grounds measure does not affect the official's on which it is based, under Article 25 of the position under the Staff Regulations, nor Staff Regulations. does it infringe the principle that the post to which an official is assigned should correspond to his grade. 20. I think it is appropriate to look first at the question of the statement of the grounds on which the decision was based. 24. As the Court declared in paragraph 46 of its judgment in Albertini and Montagnani 21. The second paragraph of Article 25 of ν Commission, cited above: the Staff Regulations provides:
'Any decision relating to a specific indi ' . . . it is not possible to regard as a measure vidual which is taken under the Staff Regu adversely affecting an official, within the lations shall at once be communicated in meaning of Article 25 of the Staff Regu writing to the official concerned. Any lations, and as such subject to the decision adversely affecting an official shall requirement that the administrative state the grounds on which it is based.' authority should state the grounds on which it is based, a measure of internal organ ization which is not of such a nature as to affect the official's position under the Staff 22. With regard to the absence of Regulations or to infringe the principle that communication in writing, I should like to the post to which he is assigned should refer to a line of decided cases in which the correspond to his grade . . . It is part of the Court has held that normal exercise of authority within an administration for a superior to assign, in conformity with the abovementioned 'since the communication is an act principle, duties to officials on the basis of subsequent to the decision and therefore has their particular aptitudes; measures adopted no influence over its contents, this for that purpose require no special justifi infringement cannot result in the annulment cation'. of the decision challenged' (see in particular the judgment of 29 October 1981 in Case 125/80 Anting ν Commission [1981] ECR 2539, at p. 2552, paragraph 9). 25. The applicant's argument that the decision here does nevertheless adversely affect him by reason of the mere fact that 23. Secondly, the measure to which this the Commission replied in writing to the application relates constitutes neither a substance of his complaint must also be transfer (moving an official to a vacant post) rejected: every measure must be assessed in nor a reassignment (moving an official and accordance with its intrinsic nature.
HECQ ν COMMISSION
26. It may therefore be concluded that the 30. In that connection, it should be submission based on the failure to state the observed that during the course of the grounds of the decision must also be contacts which took place between the dismissed. applicant and the Director for Adminis tration on 21 February, 5 and 20 March 1986, the applicant had the opportunity of expressing his desire to be responsible for only four buildings. The number of buildings was none the less maintained at five, but, in memoranda dated 5 and 24 27. Moreover, a measure which does not March, the Director reminded Mr Hecq adversely affect an official and which for that it had been agreed that his workload that reason 'requires no special justification' would be assessed as new buildings were let (in the phrase used in the judgment in and would be adjusted if necessary. Albertini and Montagnani) is in effect presumed to have been adopted in the interests of the service. At the hearing, the applicant in fact confirmed that he did not consider the decision in question to be a disguised disciplinary measure. 31. Mr Hecq could not, therefore, have been unaware that the extent of his duties had not been definitively fixed and that changes were likely to occur. The adminis tration could even assume that the applicant would take a rather favourable view of the reduction in the number of buildings for 28. The complaint that the Commission which he was responsible. That reduction failed to have regard to the interests of the could not, in any event, be regarded by him service is therefore also unfounded, and the as an unforeseeable and inexplicable second submission must be dismissed in its occurrence. entirety.
32. Finally, I should like to point out, as the Court did in paragraph 20 of the first III — The submission alleging a breach of judgment relating to Mr Hecq, that the general principle of sound administration and of the administration's duty to have regard to the interests of its officials
'it is clear from the case-law of the Court that although the Staff Regulations contain precise guarantees of officials' rights under them, the administration of the Community 29. The applicant criticizes the fact that the institutions is not under any duty to seek Appointing Authority did not give him an the individual views of officials on measures opportunity of putting his point of view and of reorganization which may affect their that the decision was therefore adopted position'. without taking his interests into account.
OPINION OF MR MISCHO —CASE 280/87
33. The third submission must therefore also be rejected, and the application dismissed in its' entirety.
34. With regard to costs, I propose that the Court apply Article 70 of the Rules of Procedure.