T-69/92

JUDGMENT OF 24. 6. 1993 — CASE T-69/92

rendered admissible only if special cir­ inform potential candidates as accurately cumstances justify it. This might be the as possible of the nature of the conditions case either if the decision in issue were in of eligibility for the post in order to the nature of a covert penalty or if it dis­ enable them to judge whether they should closed an intention to discriminate against apply for it. However, the information the official concerned or, again, if it contained in the notice concerning the involved misuse of powers. arrangements for the performance of duties has neither the object nor the effect of requiring the administrative authority to organize the department on a perma­ nent basis exclusively in accordance with 2. Under the Staff Regulations the essential the arrangements described after the suc­ purpose of a notice of competition is to cessful candidates have been recruited.

J U D G M E N T O F T H E C O U R T O F F I R S T I N S T A N C E (Third C h a m b e r ) 24 J u n e 1 9 9 3 *

In Case T-69/92,

Willy Seghers, official of t h e C o u n c i l of the E u r o p e a n C o m m u n i t i e s , residing in Brussels, represented b y Georges Vandersanden and Laure Levi, of the Brussels Bar, with an address for service in L u x e m b o u r g at the C h a m b e r s of Alex Schmitt, 62 Avenue Guillaume,

applicant,

APPLICATION for the annulment of the decision of 28 October 1991 withdraw­ ing the applicant from the rota for providing cover in three shifts and for the annul­ ment of the decision of 19 June 1992 rejecting his complaint,

THE C O U R T O F FIRST INSTANCE OF T H E EUROPEAN COMMUNITIES (Third Chamber),

composed of: J. Biancarelli, President, B. Vesterdorf and R. Garcia-Valdecasas, Judges,

Registrar: H. Jung,

having regard to the written procedure and further to the hearing on 19 May 1993,

gives the following

to 9 July 1990. He also acted as a spokesman on many technical and social matters.

3 By note of 28 October 1991, brought to the attention of the applicant the same day, Mr B., his immediate superior, withdrew him from the rota for shiftwork with effect from 1 November 1991.

4 That note reads as follows:

'The organization of a rota to provide 24-hour cover in three shifts in the security department is heavily dependent on the actual presence of staff during the shifts allocated to them.

Your frequent absences from the department both in 1990 and in 1991 have come to my attention.

The information at my disposal shows that your actual attendance in the depart- ment has been as follows:

6 O n 11 D e c e m b e r 1991 tlie applicant asked to be 'restored to the rota for shiftwork' and, in the absence of anv reply t o his request, on 27 January 1992 he submitted a complaint against the above decision of 28 O c t o b e r 1991 p u r s u a n t to Article 90(2) of the Staff Regulations.

7 Following the submission of that complaint, by decision of 27 April 1992 with effect from 15 Mav 1992, the applicant was assigned t o the C o u n c i l ' s general ser­ vices d e p a r t m e n t and his allowance for shiftwork was stopped as from that latter date. O n 27 July 1992 the applicant submitted a new complaint against that decision, p u r s u a n t t o Article 90(2) of the Staff Regulations. That complaint was rejected on 27 N o v e m b e r 1992. O n 26 February 1993 the applicant lodged an appli­ cation for a n n u l m e n t of the decision of 27 April 1992 (Case T-20/93).

8 T h e complaint of 27 January 1992 against the decision of 28 O c t o b e r 1991, which is the only one in issue in this case, was expressly rejected by decision of the Secretary-General of the Council dated 19 J u n e 1992. That decision reads as fol­ lows:

'Your complaint regarding the decision of 28 O c t o b e r 1991 withdrawing you from the rota for shiftwork as from 1 N o v e m b e r 1991 has been given t h o r o u g h consid­ eration. I n o w have the following c o m m e n t s to make.

T h e decision of 28 O c t o b e r 1991 was taken in the interest of the service, given that y o u r frequent absences created problems in relation to the organization of contin­ uous cover. It is self-evident that this cannot be d o n e in a rational and satisfactory manner if the staff called u p o n to w o r k u n d e r this system arc required to w o r k overtime for long periods to cover for absent colleagues.

Forms of order sought

10 The applicant claims that the Court should:

•— declare the application admissible and well founded;

— accordingly, annul the decision of the appointing authority of 28 October 1991 and, as far as necessary, the decision of the appointing authority of 19 June 1992 rejecting the applicant's complaint.

11 The Council contends that the Court should:

— dismiss the application as unfounded;

T h e claims for a n n u l m e n t

Arguments of the parties

Admissibility

15 T h e applicant argues that the application is admissible as he has been deprived of the right to carry out the duties which he was recruited to perform in accordance with the arrangements and the time-table described in the notice of competition. H e adds that the defendant's contention that the contested decision has not adversely affected him is irrelevant because, although it is undisputed that an offi- cial may be posted to many different departments during his career, those postings must fit into the framework set out in the notice of competition.

16 At the hearing the applicant argued that the contested act did have an adverse effect on him, firstly because it led to a progressive d o w n g r a d i n g of the content of his duties; secondly because, under the circumstances, it cannot be viewed merely as a temporary organizational measure; thirdly, because it is liable to p r o d u c e effects

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18 At the hearing the Council added that the act in issue never had any financial effect whatsoever as the allowance for shiftwork continued to be paid. Moreover, since that act never had any legal effect, the judgment of the Court on the legality of the decision of 27 April 1992 would not alter the actual position of the applicant in any respect. Furthermore, the Council pointed out that, of the roughly 50 employ­ ees in its security department, about 15 work outside the shift system on a perma­ nent basis, as did the applicant temporarily without any alteration or downgrading

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whatsoever of the nature of his duties. Finally, the Council argued that if the C o u r t were to annul the decision of 27 April 1992 the applicant would be reinstated in his post in the security department outside the shift system but retaining the allow- ance for shiftwork, even though, in this last respect, his position would have to be covered by an appropriate arrangement.

Substance

19 In support of his application for annulment of the contested decision, the applicant puts forward four pleas in law. T h e first alleges breach of Article 1 of Annex II to the Staff Regulations concerning the Staff C o m m i t t e e and a manifest error of assess- ment by the administrative authority; the second alleges breach of the principle of non-discrimination and the existence of a manifest error in the assessment of the circumstances of the case; the third alleges an error in the reasoning of the contested decision; finally, the fourth alleges misuse of powers by the defendant institution.

against the background of the wide discretion which the administrative authority has in organizing its departments and assigning its staff in order to carry out their tasks. It is settled case-law of the Court of Justice that this power to organize departments entails an obligation on an official to accept any assignment to a post in his category and the right of the Community institutions to reassign officials to different posts without their consent. That case-law, developed in connection with redeployment, must with greater reason apply to the facts of this case, in which the decision in issue merely alters the arrangements for the performance of duties. In view of the applicant's absences, this measure, taken solely as a result of the appli- cant's frequent and unpredictable absences, as witnessed by the reference to the need for 'the actual presence of staff during the shifts allocated to them', was nec- essary for the organization of a department where the 'interdependence' of staff is particularly marked. In those circumstances, the Council considers that there is no need to go to the lengths of verifying the exact number of days the applicant was absent during the period from 1 January 1990 to 30 September 1991.

24 As to the third plea alleging an error of reasoning, the applicant maintains that, according to the defence, the decision in issue was not based, as its statement of grounds purports, on a clearly defined number of days' absence, but on the fre­ quency of his 'unscheduled' absences. The applicant questions whether it is possi­ ble for the statement of reasons in the decisions in issue to be replaced by a new statement. The real reasons for the contested decision were only revealed when the defence was lodged. This new statement of reasons replaced the initial statement, as the defendant itself admits, with the result that the institution was in breach of Article 25 of the Staff Regulations and did not enable the applicant to defend his rights without restriction and in full knowledge of the case against him.

Findings of the Court

Admissibility

28 It is settled case-law that an application made under Article 91 of the Staff Regu­ lations is only admissible if it concerns an act adversely affecting an official, that is to say, an act directly and immediately affecting the legal position of the official concerned (Case 129/75 Hirschberg ν Commission [1976] ECR 1259 and Case 204/85 Stroghili ν Court of Auditors [1987] ECR 389 and the orders of the Court of First Instance in Weyrich ν Commission, cited above, and Case T-34/91 White­ head ν Commission [1992] ECR II-1723).

30 In this connection it should be pointed out that the reassignment of an official is, strictly speaking, a matter for the internal organization of the department and can be the subject of a legal action only if the particular circumstances justify it (Case 17/68 Reinarz v Commission [1969] ECR 61 and of the Court of First Instance in Case T-50/92 Fiorani v Parliament [1993] ECR II-555). Moreover, the Court of Justice has held that a decision assigning to a post in a personal capacity an official already assigned in that capacity to another post in the same grade does not alter the position of that official under the Staff Regulations and, therefore, does not affect him adversely (Case 189/81 Bosmans v Commission [1982] ECR 2681). Finally, the Court of First Instance has held that, for a reorganizational measure within a department to prejudice the rights of an official under the Staff Regula­ tions, and consequently, for it to be able to be the subject of any action before the Court, it is not sufficient for it to entail a change in, or even any diminution of, his responsibilities; it is necessary that, taken together, the residual responsibilities should fall clearly short of those corresponding to his grade and post, taking account of their importance and scope (Case T-46/89 Pitrone v Commission [1990] ECR II-577).

31 Moreover, in its assessment of the effects of the contested act, the Community judi­ cature takes account not only of the legal effects in the narrow sense but also of the material and financial effects. Thus, a departmental circular informing an official that an allowance he has been receiving is to be withdrawn is an act adversely affecting him and, as such, may be the subject of an action (Case 56/72 Goetb-Van der Schueren v Commission [1973] ECR 181).

34 Secondly, the Court rejects the applicant's argument that the Community institu­ tion is bound by the information in provisions in the notice of competition, that candidates' duties would be performed on a rota basis and that, accordingly, the contested decision had altered the legal position of the applicant. The Court of Jus­ tice has held that '[A] ccording to the Staff Regulations, the basic function of the notice of competition is precisely to give those interested the most accurate infor­ mation possible about the conditions of eligibility for the post to enable them to judge whether they should apply for it' (Case 255/78 Anselme and Constant ν Commission [1979] ECR 2323 and in Case 67/81 Ruske ν Commission [1982] ECR 661). In this case, pursuant to Article 1(1) of Annex II to the Staff Regulations under which the notice of competition 'must specify ... (c) the type of duties and tasks involved in the post to be filled', candidates were admittedly informed of the fact that the department was organized on a rota basis. However the information thus given to the candidates and intended to enable them to apply for the post in full knowledge of the circumstances had neither the object or effect of requiring the administrative authority, if it was not to act unlawfully, to organize the depart­ ment on a permanent basis exclusively as described in the notice after the success­ ful candidates in the competition had been recruited. To endow a notice of com­ petition with such an effect would amount to nullifying the wide discretion which the administrative authority has in organizing its departments to the best advan­ tage. Accordingly, the applicant may not rely on the information contained in the notice of competition in order to maintain that the contested decision has produced legal effects with respect to him or has altered his position under the Staff Regu­ lations.

36 Finally, and contrary to the applicant's assertions at the hearing, only the decision of 27 April 1992, which, before the action was brought, assigned the applicant to the Council's general services department and stopped the payment to him of the allowance provided for in Article 56a of the Staff Regulations, can affect him adversely. Following the rejection by the administrative authority of the complaint made that that decision is moreover, the subject of a separate action currently pend­ ing before the Court. In the — purely contingent — event, invoked by the appli­ cant, that the Court should allow his claim in Case T-20/93 (see paragraph 7, above), the annulment of the decision of 27 April 1992 would serve only to restore the applicant to the position he was in before the annulled decision was taken, that is to say, the applicant would, as the Council admitted at the hearing, pursuant to Article 176 of the EEC Treaty, have to be reinstated in the security department outside the three-shift system but without detriment to his previous financial pos­ ition, subject to a decision to be taken regarding the continuance of the payment to him of the shiftwork allowance. Such an annulment would thus, in itself and in any event, have no effect on the admissibility of the present action, a matter which must be assessed as at the date on which the action was brought.

3 7 It follows that the application, which is directed against a decision which altered neither the legal nor the material situation of the applicant and, consequently, does not affect him adversely, is, in principle, inadmissible.

40 Furthermore, the Court points out, by reference solely to the number of days on which the applicant was absent, as expressly admitted by him in the written pro- cedure, in particular on pages 5 and 10 of his application, that the administrative authority was not guilty of any manifest error of assessment in taking the view that such absences, which do not include the applicant's absences justified by his other obligations within the institution, namely 156 days during the period from 1 Jan- uary 1990 to 30 September 1991, were incompatible with the operation of a shift service, particularly in the case of duties in the security department of an institu- tion, whatever the merits of the reasons put forward to justify them. That finding, which is based solely on the statements made by the applicant, cannot be called in question because of possible clerical errors made by the administrative authority in calculating those absences.

41 On the second question, namely whether the contested decision infringes the prin- ciple of non-discrimination, the Court considers that that principle cannot be inter- preted as meaning that the administrative authority, which must take into account

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the means at its disposal in adopting the arrangements for the organization of the department, is obliged to adopt strictly identical measures with respect to any employee who, through absenteeism, puts himself in a position comparable to the applicant's. In such circumstances the administrative authority retains its discretion to ensure the best possible continuity in the department, at least where, as in this case, the measures adopted are not tainted by any manifest error of assessment and do not constitute a covert penalty.

44 Furthermore, to dispose fully of the applicant's case, the Court considers that he has no grounds for claiming that the written procedure revealed that the contested decision was issued in breach of the obligation, under Article 25 of the Staff Reg­ ulations, to state the reasons on which it was based. Notwithstanding the light in which the defendant institution may successively have presented the applicant's absences, which are sufficiently proven by the measure of inquiry, and in particular by the applicant's own admissions, that decision is clearly based on the incompat­ ibility between those absences and the obligations and constraints necessary to ensure continuity of shiftwork cover. It follows, moreover, from all the foregoing considerations that, contrary to his assertions, the applicant has in no way been prevented from invoking his rights with respect to that decision and the Court has not been prevented from exercising its jurisdiction.

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JUDGMENT OF 24. 6. 1993 — CASE T-69/92

45 It follows from all the foregoing considerations that the application is inadmissible and, in any event, unfounded. It can, therefore, only be rejected, without any neces- sity for the Court to order the measures of inquiry sought.

Costs

46 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. However, Article 88 of those Rules provides that in proceedings between the Communities and their servants the institutions are to bear their own costs.

Delivered in open court in Luxembourg on 24 June 1993.

H.Jung J. Biancarelli

Registrar President

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