C-116/88

1. The Court has before it two applications from Mr Hecq which are rather similar to 4. During the oral procedure it was estab­ applications previously made by the same lished that Mr Hecq, who did not ultimately applicant and upon which judgments were return to work until 4 May 1987, contacted delivered on 23 March 1988 (Case 19/87) the manager of the Overijse leisure complex and 14 December 1988 (Case 280/87). by telephone before that date. He sent Mr Hecq a two-page memorandum on 29 April 1987 listing 'work outstanding at the centre' 2. I would refer to the Report for the (Annex 4 to the application). That list was Hearing for the facts of the new supplemented by memoranda of 6 May and applications and the submissions upon 1 June 1987 concerning matters of minor which they are based. I will refer to them importance. here only in so far as is necessary in order to make my reasoning clear. 5. It is common ground that Mr Hecq never submitted to his superior the compre­ hensive inventory of work, with estimates, 3. From 6 February to 4 May 1987 Mr which he had been asked to compile. Hecq was absent from work for health reasons. During that period Mr Petersen, Head of the Buildings Department, made other officials responsible for the buildings 6. On the contrary, on 13 July 1987 Mr which were previously in Mr Hecq's charge. Hecq lodged a complaint against the By a memorandum of 22 April 1987 Mr decision of 22 April 1987. The Commission Petersen, anticipating that Mr Hecq would rejected that complaint on 25 November return on 27 April 1987, informed him as 1987 and Mr Hecq then brought the action follows: in question in Case C-l 16/88 seeking the annulment both of the rejection of the complaint and of the decision which was the subject-matter of that complaint. ' When you return to work I would like you to carry out an audit of the Overijse complex. The audit, which I would like to have by 18 May, will draw up a complete 7. By a decision of 31 July 1987, confirmed inventory of the complex, broken down by by a formal measure of 16 September 1987, building trade, and suggest possible repairs, the applicant was then assigned to new or even improvements, to make the building duties in Luxembourg. Mr Hecq considered

14. The aspect concerning the taking away 10. (a) It submits first of all that the action of his former duties might possibly raise against the decision to give Mr Hecq the problems with regard to the Staff Regu­ task of carrying out an audit of the Overijse lations since the new functions, albeit complex is devoid of purpose because the temporary, were on the whole inferior to decision ceased to produce any effects well those normally performed by an official in before the action was brought. Mr Hecq Grade B 3. Secondly, since the applicant was reassigned to Luxembourg with effect did not successfully complete the task he from 1 November 1987 while the action was had been entrusted with, he has an interest not brought until 14 April 1988. The action in protecting his reputation and career prospects by establishing any unlawfulness 1 — Judgment of 17 January 1989 in Case 293/87 Vainker v Parliament [1989] ECR 23, paragraphs 7 to 9. in the decision in question.

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HECQ v COMMISSION

15. (b) In the alternative, the Commission only heating and sanitation. Consequently claims that the application is also inad­ Mr Hecq was not 'downgraded'. missible because the decision is not capable of adversely affecting the applicant. It constitutes a mere 'measure designed to improve internal organization without 21. Mr Hecq also maintains that if the audit affecting the rights under Articles 5 and 7 of is to be regarded as covering all aspects of the Staff Regulations of the official the Overijse complex, the duties assigned to 2 concerned'. him go well beyond what may reasonably be expected of an assistant in Grade B 3.

20. In that regard, however, it is sufficient to point out that the audit did not cover That definition matches the tasks entrusted 2 — Herc the Commission is citing the judgments of 11 July to Mr Hecq, which, carried out in the way 1968 in Case 16/67 Labeyńe v Commimon (1968] ECR described above, do not exceed the capa­ 431, 293 and of 12 July 1979 in Case 124/78 Lisi v Comi/imioii[1979] ECR 2499, 2510. bilities of a technical assistant in Grade B 3.

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OPINION OF MR MISCHO —JOINED CASES C-116/88 AND C-149/88

'any decision adversely affecting an official (a) in order to ensure that the department shall state the grounds on which it is based'. operated effectively, the Head of the Buildings Department found it However, the Court has consistently held necessary, during a long period when that: the applicant was absent from work, to allocate to other officials the buildings 'it is not possible to regard as a measure which were in Mr Hecq's charge adversely affecting an official, within the because buildings could not remain for meaning of Article 25 of the Staff such a long period without anyone Regulations and as such subject to being in charge of them; the requirement that the administrative authority should state the grounds on which it is based, a measure of internal organ­ (b) when Mr Hecq returned to work, the ization which is not of such a nature as to exigencies of the service at that time affect the official's position under the Staff required that priority should be given to Regulations or to infringe the principle that the carrying out of an audit of the the post to which he is assigned should Overijse complex; 3 correspond to his grade'. (c) the tasks entrusted to Mr Hecq within 3 — See in particular the judgment of 17 May 1984 in Case 338/82 Albertini and Montagnani v Commission [19841 the context of the audit corresponded to ECR 2123, 2145, paragraph 46. his grade;

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HECQ v COMMISSION

(d) the decision at issue was taken in the 35. In my view, the assessment of this interest of the service, in respect of submission hinges on the following which the administration has and must considerations. always have a wide discretionary power.

That reasoning must apply a fortiori when it is a question of a mere provisional adminis­ trative order involving work which falls 33. Consequently the decision of the within the range of tasks which a technical Director-General for Personnel was taken assistant in Grade B 3 may be requested to on the basis of lawful grounds and does not carry out. contain a manifest error. Therefore it is unnecessary to consider the alternative submissions made by the Commission in the written procedure. 37. Furthermore, I do not see how the measure at issue was injurious to Mr Hecq's personal interest. Mr Hecq had been absent from work since 6 February and there was 4 4. Infringement of the general principle of uncertainty about his final recovery. It sound administration and the duty to have could therefore appear appropriate, 'on his regard to the interests of the official concerned return to work' and in view of the absence of the head of department from 24 April to 11 May, to assign him to only temporary duties which were intended, in principle, to 34. The applicant claims that the adminis­ be completed on 18 May 1987. tration took the decision of 22 April 1987 without having regard to his interests. Moreover, he was not allowed to put 38. Moreover, as the Court pointed out in forward his point of view before the paragraph 20 of the judgment in the first decision was taken. A fuller account of Mr Hecq's arguments and the Commission's 4 — The contested memorandum of 22 April 1987 is revealing in this regard since its author 'hopes' that the applicant replies is contained in the Report for the will return on 27 April 1987 whereas he did not return Hearing. until 4 May 1987.

'it is clear from the case-law of the Court that although the Staff Regulations contain 43. I, for my part, believe that there are a precise guarantees of officials' rights under number of reasons why the Commission's them, the administration of the Community- request should be granted. First of all, there institutions is not under any duty to seek is the fact that the contested measure was of the individual views of officials on measures an entirely provisional nature. Even if that of reorganization which may affect their decision meant that the applicant lost his position'. previous post, there is no doubt that at the time he brought the action only the annulment of the decision of 16 September That applies a fortiori to a provisional 1987 posting Mr Hecq to Luxembourg administrative order. could have obliged the administration to reassign him to a post corresponding to his grade in Brussels. It should also be pointed 39. Furthermore, in the judgment in the out that the arguments used by the applicant second Hecą case (judgment of 14 to show that the decision to assign him December 1988 in Case 280/87 [1988] ECR temporarily to Overijse was unlawful are 6433) the Court stated that when there is no particularly weak. measure adversely affecting the official the administration is not obliged to give the official concerned a hearing (paragraph 11). 44. Finally, account could also be taken of the fact that this application follows the application brought by the same applicant in 40. As I have come to the conclusion that Case 280/87 which was based on arguments none of the applicant's submissions can be which were somewhat similar and also all upheld, I obviously must propose that the weak and which were rejected by the Court. Court should dismiss the application in Case C-116/88 in its entirety. 45. For those reasons I might well, on this occasion, have considered pointing out that 41. With regard to the costs, the a series of applications which, while lacking 5 Commission asks the Court to declare the any justification, nevertheless puts the application unreasonable because it defendant to the trouble and expense of contends that it is common ground that the refuting them is not permissible. annulment of the decision in question could not benefit the applicant. 46. However, it should be pointed out that the Court usually requires each party to 42. The applicant, for his part, points out bear its own costs when the defendant's that the circumstances in this case are objection of inadmissibility is rejected. That different from the circumstances in cases practice has been criticized by the Conseil where the Court has recognized that an des barreaux de la Communauté euro- application is vexatious or unreasonable. Consequently, the action is not manifestly 5 — See by analogy the judgment of 9 March 1978 in Case 54/77 Herpels v Commission [1978] ECR 585, at p. 601, inadmissible or manifestly unfounded. The paragraph 54.

49. The task given to Mr Hecq in 51. Subsequently, Mr Hecq was also put in Luxembourg was defined as follows: charge of the heating in the Jean Monnet Building. On 12 October 1988 he was asked to perform the same duties at the Commission's new building in Luxembourg, 'Under the direct authority of Mr Vial, Mr the Wagner Centre, as he performed at the Collovald and the Head of Division IX-E-2, Cube Building and the Centre polyvalent de to monitor the technical installations of the l'enfance. Cube Building which has recently been enlarged and fitted out.

52. Finally, during the oral procedure it Since the Cube Building is intended to came to light that Mr Hecq assumed, at an house the Euratom Safeguards Directorate unspecified time, new union duties which of the Directorate-General for Energy required his presence in Brussels on two (XVII), a directorate with numerous labora­ days per week and which therefore tories and specialized equipment, including prevented him from monitoring con­ considerable data-processing equipment, the tinuously the functioning of the technical

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OPINION OF MR MISCHO —JOINED CASES C-116/88 AND C-149/88

equipment in the buildings which were in for the condition of certain buildings, he his charge. could be regarded as being in charge of an administrative unit.

59. However, as I have already pointed out, the decision does in fact make express 55. The applicant also insists that previously reference to the 'interest of the service'. It he was head of a division of an adminis­ therefore states the grounds on which it is trative unit, which is now no longer the based. case. However, it must be pointed out that the description of the duties of an assistant in Grade B 3/B 2 shows that an assistant 60. The question remains whether, as the does not necessarily have authority over a applicant maintains, that statement of team of technicians as the applicant appears grounds on which the decision is based is to believe. It is evident from the judgment in insufficient or erroneous because the Case 19/87 that such is not the case. The decision was in fact based on different Court stated in that judgment that as the grounds. In the latter case, Article 7(1) of applicant was the only official responsible the Staff Regulations, which provides that

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HECQ v COMMISSION

62. In my view, a distinction must be made 63. As for the applicant's claim that the between the temporary administrative order, decision taken was in no way justified by as in Case C-l 16/88, and a definitive the interest of the service, it is evident from transfer of an official. An administrative the case-law of the Court that it can be in order need not, in my opinion, contain a the interest of the service to transfer an statement of the grounds upon which it is official when the atmosphere prevailing in based. However, in the case of a reas­ his service does not allow everyone to signment (moving an official with his post) perform their duties normally. For example, or a transfer (appointing an official to a in Kley, cited above, the Court ruled that post which was previously declared vacant), the transfer was in the interest of the service which may both be regarded as identical for because the official opposed plans which he the purposes of the arguments that follow, had been asked to implement. the statement of reasons merely refers to the interest of the service. The administration is always supposed to act on that basis; it must, therefore, also inform the official why 64. In Scappa the Court accepted that it was the interest of the service makes it necessary in the interest of the service to transfer an to transfer him against his will. Moreover, official who did not get on with his 8 the Court has held that superior.

65. Finally, in Mrs V. v Commission the 'a transfer decision, contrary to the wishes Court had no hesitation in ruling that of the person concerned ... adversely affects an official within the meaning of 7 See the judgment in Kley, cited above, and also the (Article 25) and the reasons on which it is judgments of 1 May 1983 in Joined Cases 36, 37 and 6 218/81 Selon v Comminimi [19831 ECR 1789 and of 29 based must therefore be stated'. October 1981 in Case 125/80 Aming v Commmion [1981] ECR 2553 8 — Judgment of 10 July 1975 in Joined Cases 4 and 30/74 6 — See the judgment of 27 June 1973 in Case 35/72 Kley v Scuppav Continuilo» [1975] ECR 919 Commission [1973] ECR 679

'it was in the interests of the service to put 3. Infringement of the general principle of an end to an administrative situation which sound administration and the administration's had become intolerable for all concerned. duty to have regard to the interests of its The transfer decided upon by the officials Commission may therefore be regarded as a measure which was necessary in the general 9 interest'. 69. As in Case C-l 16/88, the infringement alleged by this submission in Case C-149/88 66. It is evident from the documents before consists in the fact that the contested the Court that there was a very tense atmo­ decision was taken without having regard to sphere within the department in which Mr the interests of the applicant. He ought to Hecq worked. In paragraphs 17 and 18 of have been able to remain in his service so the judgment in Hecq I the Court had that the measure would not be interpreted already established that there was a dete­ as disguised disciplinary action. rioration in the working atmosphere in the section. Subsequently, after being trans­ ferred for the first time, Mr Hecq complained that he was responsible for too 70. However, it must be pointed out here many buildings; however, he brought an that when the Director-General took the action when one of those building was decision at issue he specifically emphasized taken out of his charge. That certainly did the fact that it was not disguised disciplinary not help to improve his relations with his action, which the applicant could point out superiors. Later he drew attention, justi­ publicly. fiably it seems, to the existence of anomalies, or even irregularities in files processed by his division, which unfortu­ nately must have given rise to new tensions. 71. Moreover, in my opinion, it is excessive Mr Hecq was given the task of carrying out to contend that the Commission ought not an audit of the Overijse leisure complex but to have taken a decision, which, as we have he never submitted the inventory he was seen, was fully in the interest of the service, asked to compile. merely in order to prevent it from being wrongly interpreted as disguised disciplinary action. 67. In view of those facts, it must be stated that the administration did not commit an error of assessment by taking the view that it was in the interest of the service and of 72. It should also be pointed out that the Mr Hecq to remove him from the division Commission did endeavour to take into to which he had belonged until then (see the account the applicant's interest in remaining letter of 17 May 1988 rejecting the in the Brussels region by offering him the applicant's complaint). chance of occupying a post in Zaventem. However, Mr Hecq maintains that the choice was not a 'real' one, since the post 68. Consequently, there is no need to offered did not correspond to his speciality. consider the other arguments put forward However, the Commission's 'mobility by the Commission. policy' involves, whenever possible, changes of duties, which the applicant concedes. The 9 — Judgment of the Court of 14 June 1979 in Case 18/87 arguments he puts forward in this regard Mrs V. v Commission [1979] ECR 2093. are not the most consistent of arguments: he

78. The applicant, who was elected to the 74. The Court has also pointed out that, Executive Committee of the Union provided that the duties assigned to him syndicale in May 1987, claims that, because correspond to his grade and basic post, of his reassignment to Luxembourg, he can no longer properly exercise his union mandate. He contends therefore that the Commission infringed Article 24a of the Staff Regulations, which provides that 'an official is obliged to accept any assignment in accordance with the requirements of the service, anywhere in the 'officials shall be entitled to exercise the Community, in any place of employment right of association; they may in particular within the institution in which he serves'." be members of trade unions or staff associ­ ations of European officials'. 10 — See the judgment of 6 May 1969 in Case 21/68 Huykrechu v Commiuion [1969] ECR 85 11 — See the judgments of 23 January 1986 in Case 173/84 Raimussen v Commission [1986] ECR 197 and of 24 February 1981 in Joined Cases 62 and 161/80 Carbognam 79. The fact that Mr Hecq obtained a new and Coda Zabetta v Commitnon [1981] ECR 543, at p. 564 mandate from another professional organ­

I-619

OPINION OF MR MISCHO— JOINED CASES C-! 16/88 AND C-149/88

ization after his transfer to Luxembourg is 'membership of a trade union or staff as­ proof, if any is needed, that his rights under sociation, participation in trade union acti­ Article 24a were in no way affected by his vities or the holding of office in a trade transfer. It is, moreover, highly unlikely that union shall in no way adversely affect the an official has the right to perform his union position or career of an official'. duties in a place of work which he himself determines.