JUDGMENT OF 16. 6. 1971 — CASE 61/70 VISTOSI v COMMISSION

In Case 61/70

THE COURT (First Chamber) composed of: A. M. Donner, President of Chamber, R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Grounds of judgment

Costs

I —. Facts and procedure

II —. Conclusions of the parties

(1). Declare null and void the Commission's implied refusal of his administrative complaint of 13 July 1970;

(2). Declare null and void the decision by which the Commission appointed Mr Luciano Angelino Italian language editor of the Publication Division of the Directorate for Information and Media of the Directorate-General for Press and Information;

(3). Declare null and void the decision by which the applicant was relieved of his duties;

(4). Order the opposite party to bear the costs.

(1). What since 1 July 1970 have been the applicant's conditions of work and what are the tasks entrusted to him?

(2). Is it not a fact that to the extent of 95 % the applicant's tasks in his capacity as Italian language editor as indeed those of the other editors consists of editing the Commission's monthly publication (in the present case Comunita Europee)?

III —. Submissions and arguments of the parties

A —. In the application the applicant argues that the decision transferring Mr Angelino to the Publications Division of the Directorate-General for Press and Information with posting to Rome adversely affects him in that it deprives him of the opportunity of performing tasks which he had until then performed without other duties being allocated to him and that it must be annulled for the following reasons:

B —. In the statement of defence the Commission replies in the first place to the submissions relating to the alleged deprivation of employment and subsequently to those dealing with Mr Angehno's transfer.

C —. In his reply the applicant points out that one cannot—as was done by the defendant—divorce the two contested decisions. For the purpose of assessing their legality they form one entity for it is the decisions relating to Mr Angelino which relieved the applicant of his duties.

D —. In its rejoinder, the defendant quotes different facts from which it can be seen that the applicant, whilst no longer as in the past called upon to collaborate in editing Comunità Europee, has nevertheless been entrusted with other editorial tasks the accomplishment of which constitutes no handicap for his professional future.

E —. In the course of his oral argument the applicant pointed out that in the present case Mr Angelino was not transferred together with his post. After coming from the Spokesman's Group, Mr Angelino was assigned to a cabinet. When he had to be restored to his former post with the Spokesman's Group, once his secondment had terminated, the defendant transferred the post from the Spokesman's Group to the Directorate-General for Press and Information and thus assigned Mr Angelino to an altogether different post. A transfer of this kind, without a prior vacancy notice is not permissible.

1. By application lodged on 4 November 1970 the applicant brought before the Court an application for the annulment of the defendant's decision of 6 May 1970 transferring Mr Angelino, an official in Grade A 4 with the Spokesman's Group, to the Directorate-General for Press and Information, Publications Division, and posting him to Rome.

2. This decision is said to have had the effect of relieving the applicant, who was an administrator in Grade A 6 in that division, of his duties as Italian language editor of periodic and non-periodic publications of that division or of the press office in Rome, in particular in so far as the editing of the review Comunità Europee is concerned.

3. The applicant alleges in the first place that the contested decision must be annulled because no vacancy notice had been published, whereas under Article 4 of the Staff Regulations any vacancy in an institution shall be notified to the staff once the appointing authority decides that a post is to be filled.

4. The defendant replies that it did not fill a vacancy but only transferred a post because it was necessary to strengthen the Publications Division by reason of the increase in relating to information consequent upon the development of the Community's activities.

5. The appointing authority may in the interest of the service transfer a post from one Directorate-General to another where it considers that such a post is more useful in the department to which it is allocated than in that from which it is removed.

6. Where the post is transferred without any substantial change in the duties attaching to it, it does not amount to the creation of a new post.

7. Besides, where the official who occupied the transferred post is transferred together with it there is no vacancy, nor consequently is there an obligation to implement the procedure provided for such a case.

8. In the present case the defendant states that the post held by Mr Angelino with the Spokesman's Group and the post which he holds in the Publications Division were similar.

9. The applicant has submitted nothing capable of invalidating this statement.

10. Besides, contrary to the applicant's allegations, it appears from the Court file that the post transferred really went to strengthen the staff of the Publications Division.

11. Accordingly there was no need for a vacancy notice to be published.

12. The submission must therefore be rejected.

13. The applicant further alleges that consequent upon the transfer in question he was discharged from his job as editor of the review Comunità Europee, thus in fact relieving him of his duties without new tasks being entrusted to him.

14. The higher authority alone is responsible for the organization of the departments which it must be able to determine and modify according to the exigences, of the service, without prejudice to the rights which servants enjoy under their Staff Regulations and which they can ask the Court to enforce.

15. In particular it is clear from Articles 5 and 7 of the Staff Regulations, that an official has the right to expect that the duties which are assigned to him should as a whole be in keeping with the post which corresponds to the grade which he occupies in the scale of posts.

16. Withdrawing from an official one or more of the departments for which he was previously responsible may in certain circumstances amount to an infringement of this right.

17. Whilst it is correct that the applicant is no longer entrusted with the editing of the review Comunita Europee it is no less clear that since this task came to an end he has carried out other editorial activities in the Italian language.

18. Whilst this work differs from that previously done, there is nevertheless nothing to show that it is not in conformity with his grade.

19. The submission must accordingly be rejected.

20. The applicant goes on to allege that the contested measure ought to be annulled because it was not notified to him and because no reasons for it were given.

21. Under Article 25 of the Staff Regulations any decision relating to a specific individual must be communicated in writing to the official concerned.

22. In the present case the contested decision in question only had to be notified to the official to whom it related.

23. Under the said Article 25 it only had to state the reasons on which it was based as regards the addressee thereof if it adversely affected him.

24. The submission is therefore unfounded.

25. Finally, the applicant does not establish in what manner the act of posting Mr Angelino to a post in the Publications Division which corresponded to his grade constituted a misuse of powers.

26. In the absence of precise allegations on this point this submission must like wise be rejected.

27. The application must therefore be dismissed.

28. Under the provisions of Articles 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. However, under the terms of Article 70 of the said Rules, the costs incurred by the institutions in actions brought by employees of the Community are to be borne by such institutions.

29. The applicant has failed in his action.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community; Having regard to the Staff Regulations of Officials, especially Articles 4, 5, 7, 90 and 91; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (First Chamber) hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.