JUDGMENT OF 27. 6. 1973 — CASE 35/72 KLEY v COMMISSION

In Case 35/72

THE COURT (Second Chamber) composed of: P. Pescatore, President, M. Sørensen and Lord Mackenzie Stuart (Rapporteur), Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts

II — Procedure

III — Submissions of the parties

IV — Pleas and arguments of the parties

A — Admissibility

B — Merits

First plea

Second plea

Third plea

Grounds of judgment

Admissibility

Merits

As to the statement of reasons in the decision

As to the contravention of Articles 5 and 7 and Annex I to the Regulations

As to misuse of powers

Costs

I —. Summary of facts

1. Mr Walter Kley is a qualified physicist and has been since 1966 a University agrégé. On 1 May 1960 he entered the service of the EAEC and was charged by the Director General with organizing the spectroscopy of neutrons at the Ispra-I reactor at the Joint Research Centre, Ispra.

2. He was appointed in Grade A 7 and on 1 November 1960 he was promoted to Grade A 5 and on 1 January 1962 to Grade A 4. At the end of 1962 the applicant was called upon to run the Experimental Physics section. On 1 September 1970 he was appointed head of the new Physics Division in Grade A 3. There he was in control of a large scientific staff comprising some forty university graduates in addition to technical and administrative staff properly so-called.

3. In summer 1970 the Director-General of the Joint Research Centre, Mr Caprioglio, decided to reorganize the Ispra Joint Research Centre and in particular to transfer the Experimental Physics section, which was incorporated in the Physics Division, to the Nuclear Studies Division. This step met with very lively opposition from the officials concerned.

4. In October 1971, Mr Kley established working groups for the preparation of experiments for the Sora reactor, of which he was the originator.

5. On 26 November 1971, Mr Finzi, Scientific Director of the Ispra establishment, addressed to Mr Kley a memorandum in the following terms:

6. On 29 November 1971, Mr Kley went on a mission to Bonn and Brussels in connexion with the Sora programme.

7. On 2 December 1971 Mr Kley sent to Mr Spinelli, member of the Commission responsible for Euratom questions, a memorandum, a copy of which was sent to Mr Caprioglio, and in which in particular it was stated:

8. On 13 December 1971 the Director General, Mr Caprioglio, asked the Director-General of Personnel and Administration to cause his departments to examine the possibility of starting disciplinary proceedings against Mr Kley. The letter requesting disciplinary measures was worded as follows:

9. On 14 December 1971, Mr Kley received the transfer documents for the officials affected by the reorganization, but he did not pass them on. Next day, in a note addressed to Mr Commissioner Spinelli, he wrote:

10. On 20 December 1971, Mr Kley transmitted, through his immediate superior, his observations regarding the complaints set out in the note from the Director-General of 13 December 1971.

11. On 7 January 1972, Mr Commissioner Spinelli replied to the note from Mr Kley of 15 December 1971 suggesting an interview.

12. On 10 January 1972, Mr Caprioglio informed Mr Kley that he would be relieved of his post as Head of Division of the Physics Division and mentioned the scientific and personal difficulties which had arisen between them.

13. In the note accompaying the observations of the applicant of 20 December 1971, the Director-General on 11 January 1972 requested the Director-General of Administration to consider the request for an examination of the possibility of initiating disciplinary proceedings as being withdrawn. He explained his change of attitude as follows:

14. On the same day, that is 11 January 1972, the Director-General relieved the applicant of his post and appointed him adviser to the Ispra Scientific Directorate, charged in particular with the coordination of work regarding the experimental programme connected with the use of the Sora reactor. This letter includes in particular the following passage:

15. The description of the basic posts mentioned in Annex I to the Staff Regulations was brought to the notice of staff by Circular 9/63 of 13 March 1963 from the Directorate General of Personnel and Administration.

16. On 28 January 1972 Mr Kley received from Mr Finzi a departmental order in manuscript, neither dated nor signed, inviting him to coordinate the working groups for the preparation of a comprehensive report. Mr Kley refused, on the ground that in his view this method of work was not scientifically practicable.

17. On 21 April 1972, Mr Finzi, in a note addressed to Mr Kley, informed him:

18. Following an exchange of notes with the Director-General, Mr Kley became responsible for an experimental programme with an allocation of 10000 UA, but, as the spectrometer which was entrusted to him was out of action and as no permanent technician had been recruited, he carried out no experiments between the date of the transfer in dispute and the present action.

19. On 10 February 1972, Mr Kley put forward a complaint, in accordance with Article 90 of the Regulations, to the President of the Commission, requesting the cancellation of the decision taken on 11 January 1972. His complaint, which was registered on 18 February 1972, remained without reply at the expiry of the period of two months.

II —. Procedure

III —. Submissions of the parties

IV —. Pleas and arguments of the parties

A —. Admissibility

B —. Merits

1. Infringement of Article 25 inasmuch as:

2. Infringement of Articles 5 and 7 and of Annex I to the Staff Regulations inasmuch as the post of adviser with the Scientific Directorate does not correspond to the Grade of the applicant, Grade A 3;

3. Misuse of powers inasmuch as the decision constitutes a disguised disciplinary measure owing to the ill will of the Director-General.

1. The action is for annulment of the implied decision rejecting the complaint lodged by the applicant on 10 February 1972 against the decision of 11 January 1972 by the Director-General of the Ispra Joint Research Centre relieving him of his duties as Head of Division of the Physics Division in order to appoint him as adviser to the Scientific Directorate.

2. The Commission pleads that the action is inadmissible on the ground that it is directed against an act not adversely affecting the applicant within the meaning of Article 91 of the Staff Regulations.

3. The transfer decision, it is contended, did not involve for the applicant any modification of his material interests or any reduction in his rank in the hierarchy, and consequently it did not adversely affect his legal position.

4. Even though a transfer decision may not affect the material interests or the rank of an official it may, having regard to the nature of the duty in question, and to the circumstances, adversely affect the morale and the future prospects of the employee concerned.

5. In these circumstances, it cannot be considered a priori that such a decision is not capable of adversely affecting the person concerned.

6. The objection must therefore be rejected.

7. In accordance with Article 25 of the Regulations, any decision adversely affecting an official shall state the reasons on which it is based.

8. A transfer decision, contrary to the wishes of the person concerned, for the reasons set out above, adversely affects an official within the meaning of that Article and the reasons on which it is based must therefore be stated.

9. The applicant maintains that the reasons given for the contested decision do not comply with the requirements of Article 25 of the Regulations, inasmuch as they are neither complete nor in accordance with the facts;

10. that the allegation in the memorandum bringing the said decision to the notice of the applicant and according to which he had not much interest in administrative duties is refuted by the fact that for ten years past he had carried out administrative responsibilities with distinction;

11. that in reality the said decision was based on his refusal to carry out the decision of the Director-General relating to the transfer of members of the Experimental Physics Section and on his refusal to accept responsibility for the Ispra-I research reactor;

12. that on 10 January 1972 the Director-General justified his decision by referring to the attitude taken by the applicant with regard to the reorganization of the Centre; and

13. that on the occasion of an interview with research workers from the Centre on 26 January 1972, the Director-General gave as the reason for his decision the flouting of his authority on two occasions.

14. These allegations, which were not explicitly denied by the defendant, were substantially confirmed in the course of the oral procedure before the Court.

15. It is moreover reasonable to suppose that the attitude of the applicant constituted a determinative factor in the decision.

16. To decide whether the requirements of Article 25 were complied with, it is appropriate to consider the circumstances in which the contested decision was taken.

17. The documents in the case reveal the existence of a fundamental divergence of opinion between the applicant and the Director-General with regard to the plans for reorganization of the Centre and a frequently uncompromising attitude on the part of the applicant.

18. The applicant declared himself to have no interest in the execution of the plans of the Director-General, at least in so far as the management of the Ispra-I reactor was concerned.

19. In the circumstances the description of the attitude of the applicant by reference to his lack of interest in administrative duties was a reasonable conclusion and one which was, moreover, expressed with much discretion.

20. In spite, therefore, of the very elliptical form of the statement of reasons, the contested decision satisfies the requirements of Article 25.

21. This plea must be rejected.

22. The applicant quotes Article 7 of the Regulations, according to which an official must be assigned to a post in his category or service which corresponds to his grade, and states that the duties entrusted to him did not correspond to his grade.

23. In this respect the applicant, whilst admitting that the post of adivser to the Scientific Directorate corresponds technically to his grade, maintains that his new post is without genuine content; and

24. that it had not been provided for in the establishment plan, but had been created to serve as a siding for him in contravention of Article 5.

25. It appears that the principal duty which the Director-General intended to assign to the applicant in his new post consisted in proceeding with the coordination of the operations of the working groups within the framework of the experimental programme bound up with the use of the Sora reactor and with the the presentation of a comprehensive report regarding these operations.

26. The applicant refused to undertake this work on the ground that, from the point of view of organization, as the method consisted in working out a comprehensive report without having any authority over the research workers involved or any direct responsibility for them, the said method would be defective.

27. In these circumstances it was necessary to entrust the work which the applicant refused to the Assistant Scientific Director, who duly produced a full report.

28. The applicant has by no means established that this work would have been of a level manifestly inferior to the post corresponding to his grade, but has confined himself to stating the reasons for which he considered it as not consonant with his abilities.

29. Assessment of the ability of an official is a matter within the competence of the administration.

30. Even if, therefore, the post of adviser had been created with the sole object of withdrawing from the applicant direct responsibility for the Physics Division, and even if his new duties were not dealt with in the establishment plan, this fact does not indicate a lack of correspondence between the grade and the post of the applicant.

31. This plea must be rejected.

32. According to the applicant, a transfer decision may be tainted with misuse of powers if it appears, on the basis of objective, relevant and concordant evidence, to have been taken for purposes other than those indicated.

33. The applicant sees such evidence in the request of the Director-General to the effect that disciplinary measures be taken with regard to him and in the fact that this request was withdrawn on the very day on which the Director-General took the decision complained of.

34. He maintains that this fact demonstrates that the transfer was in reality a disguised disciplinary measure; and

35. that the Director-General had adopted such disciplinary measure by reason of the fact that the applicant had opposed his plans for the reorganization of the Centre.

36. The attitude adopted by the applicant with regard to the said plans constituted a real obstacle to the reorganization of the work at Ispra, for which the Director-General was responsible in his capacity as superior in the chain of command.

37. Whatever may have been the justification for the request for the adoption of disciplinary measures, the later withdrawal of the latter and the decision to transfer the applicant may be regarded as an alternative solution in the interests of the department, coming within the competence of the Director-General.

38. The Director-General was entitled to draw the conclusion that the applicant was not in a position to accept responsibility for the execution of plans which he had so vehemently opposed.

39. The applicant has not provided in support of his allegations any cogent evidence making it possibile to suppose that the Director of the Centre, who, moreover, was acting intra vires, had used his powers for a purpose other than the interests of the department.

40. This plea must therefore be rejected.

41. The applicant has failed in his action.

42. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

43. However, under the terms of Article 70 of the said Rules, the costs incurred by institutions in actions brought by employees of the Community are to be borne by such institutions.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaties establishing the European Communities; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff regulations of the European Communities, especially Articles 5, 7, 25, 91 and Annex I; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (Second Chamber) hereby:

1 Dismisses the action;

2 Orders each party to bear its own costs.