Opinion of Mr advocate general Reischl

Mr President,

Members of the Court,

The applicant in the proceedings in which I am delivering my opinion today has been in the service of the European Communities since 1961. After working for the Parliament and the Council of Ministers, in 1965 he moved to the Language Department of the Commission. In 1967 he was placed in Grade L/A 5 and in 1973 he was promoted to Grade L/A 4. Since 1974 he has belonged to the translation department of the Administrative Commission on Social Security for Migrant Workers, (hereinafter referred to as the Administrative Commission). The translators in question work in various languages and for administrative purposes form part of Directorate General IX but are in fact placed at the disposal of Directorate General V. They belong to Division IX/D/3 (Translation: General Matters), which itself comes under Directorate IX/D (Translation, Documentation, Reproduction and Library). In a group under a head of department the applicant worked as a translator and reviser for texts to be translated into German. From 1975 he was responsible in addition for co-ordinating the work of the five German translators in Grade L/A 5 belonging to the group and he also replaced the head of department when she was absent.

Tension and problems arose on a number of occasions between the applicant and the other translators and as a result the five German members informed the Head of Division, Mr Pignot, in writing that they rejected the applicant in all respects as a colleague and administrator, for example in connexion with the allocation of work. The Head of Division thereupon interviewed the persons concerned and the applicant about the matter and sought to arrange a joint meeting. The meeting did not take place however, as at the last moment the applicant stated that he was not prepared to have a confrontation with the conspirators and that he intended to submit a complaint to the President of the Commission. In a note for the record of 20 June 1977 Mr Pignot stated that his attempts at effecting a reconciliation had been unsuccessful and that he had requested Miss Peppinck, the Head of the translation department of the Administrative Commission herself to distribute translations into German within her department. He had the note countersigned by all the persons concerned. In a further note on the same day the Head of Division informed the applicant in writing at the latter's own request that he had asked Miss Peppinck thereafter to distribute work between the German translators of the Administrative Commission. In the note he expressly emphasized that the step was by no means a disciplinary measure but had been taken on a provisional basis in the interest of the service solely to ensure continuity of the work.

Subsequently on 21 June 1977 the applicant sent a letter to the President of the Commission in which he requested that the Commission should immediately take steps against officials who have formed a conspiracy against me, annul the measures taken against me by Mr Pignot (Head of Division IX/D/3) in order to comply with the demands of the conspirators and, finally, adopt appropriate measures to re-establish a healthy working atmosphere free from fear and tension amongst the translators of the Administrative Commission.

On 1 July 1977 Mr Pignot informed the applicant orally that he was not to replace the head of department who was temporarily absent.

The applicant thereupon sent a further letter to the President of the Commission, supplementing, the above-mentioned letter of 4 July 1977, requesting the annulment of the measure which in his opinion, in the absence of an appropriate decision by the Commission, constituted an infringement of Article 26 of the Internal Rules of Procedure of the Commission.

By a letter of 1 July 1977 the applicant rejected an assignment to the Task Force for Negotiations with Portugal proposed to him by Mr Ciancio, the Director, on 28 June 1977. The Director asked him in writing to reconsider the proposal, but by letter of 25 July 1977, the applicant sent a second supplementary letter to the President of the Commission asking that further consideration of his request of 21 June 1977 should be entrustred not to Mr Ciancio, the Director, and Mr Pignot, the Head of Division, but to an independent body.

By letter of 27 July 1977 Mr Baichère, the Director General, placed the applicant at the disposal of the Task Force for Negotiations with Portugal with effect from 1 September 1977. At the same time he emphasized that the request of the applicant of 21 June 1977 and the supplementary communication of 4 July 1977 would be examined subsequently.

Subsequently it became evident that in the Task Force for Negotiations with Portugal the applicant's duties were, for the most part, to translate from Portuguese into French and the applicant by letter of 24 October 1977 submitted a complaint to the President of the Commission against all the appointing authority's acts or omissions operating to my detriment in this case.

By letter of 27 October 1977, that is after the complaint had been lodged, Mr Baichère, the Director General, informed the applicant that he wished to reconsider the matter in order to find a new assignment for the applicant as soon as possible so as to take account of his merits and the interests of the appointing authority in the best possible way. In the meantime he asked the applicant to carry out the special duties given him by Mr Ciancio.

By letter of 8 February 1978, received by the applicant on 1 March 1978, Mr Commissioner Tugendhat informed the applicant that the Commission could not uphold his complaint of 24 October 1977 as examination of his request of June 1977 had revealed no evidence of the existence of any conspiracy, the decision of the Director General to assign the applicant to the Task Force for Negotiations with Portugal was based on the requirements of that Task Force and the qualifications of the applicant and finally the special duties assigned to the applicant had been allotted to him in the interests of the service and taking account of his abilities.

On 29 May 1978 the applicant lodged an application with the Court of Justice in which he claims that the Court should:

The defendant, the Commission, on the other hand, takes the view that the applicant has no cause of action in respect of the larger part of his claims. Accordingly it contends that the application should be dismissed as being inadmissible and, in any event, without foundation and that the applicant should be ordered to pay the costs.

My legal appraisal of this factual situation and the claims made is as follows:

I — Admissibility

I shall first examine the individual heads of claim as regards their admissibility.

II — Substance

As the first four claims have proved to be inadmissible it is no longer necessary for me to examine the question whether they are well-founded. Furthermore it is clear from my observations regarding admissibility that if the claims were held to be admissible I should take the view that they were without foundation as all the contested measures are internal administrative measures to remove obstacles to the smooth functioning of the service, which did not stand in the way of the applicant's assignment to a post corresponding to his grade. That is in particular also true of Mr Baichère's last decision whereby the measure moving the applicant to the Task Force was cancelled. As we have heard, he has been given responsibility within that same directorate for carrying out difficult translations and revising translations. The scope of those duties is no less having regard to their type, importance and extent than those corresponding to Grade L/A 4 and the applicant's post.

I therefore now have to examine only the applicant's last claim directed against the rejection of his request for protection against the machinations of his colleagues, the admissibility of which is not open to doubt.

The applicant relies on the first paragraph of Article 24 of the Staff Regulations under which: The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances … to which he … is subjected by reason of his position or duties. He regards the letter from his colleagues of 15 June 1977 notifying the Head of Division of their refusal to collaborate with the applicant as a conspiracy defaming him. In addition he alleges that the Head of Division, Mr Pignot, was not competent to satisfy the duty to provide assistance set out in Article 24 of the Staff Regulations as for officials in Grade L/A 4 the duty is incumbent upon the Commission which has not delegated its powers in that respect.

The defendant on the other hand refers to the judgment in Case 128/75 (Mr N. v Commission, judgment of 18 October 1976, [1976] 2 ECR 1567) and states that pursuant to Article 24 of the Staff Regulations the administration must act and take all necessary steps only when there are serious accusations as to the integrity of an employee in his official capacity. The said letter refusing to work with the applicant however does not constitute such serious defamation and Mr Pignot did everything to resolve the problem.

If we first examine the facts, the notes which had already been exchanged before 15 June 1977 show that tension and problems existed in the applicant's department — I shall give no opinion as to the question of blame — which hindered the smooth functioning of the service. In my opinion it is not necessary here to answer the question whether, taking those circumstances into account, the letter in question already constituted a serious unlawful attack on the integrity of the applicant in his official capacity. In any event the Head of Division after hearing the two sides took appropriate steps by asking the opposing parties to sit down at a table to settle their differences. As the applicant did not accept that invitation he must bear responsibility for the failure of the attempt at reconciliation. There can also be no doubt that, as the official's superior, the Head of Division was competent for that purpose as Article 24 states only that where certain unlawful situations exist the Communities must provide assistance.

In the light of such a situation the administration was certainly entitled to seek to remove the source of friction by severing the official relationship so as to ensure the smooth functioning of the service. Similarly the applicant has not produced sufficient evidence to show that those measures are to be regarded as a conspiracy. From the letter of the Commission of 8 February 1978 it is clear that even after that the whole situation was reviewed.

I therefore conclude that the fifth claim must be dismissed as being without foundation.

In view of the foregoing I propose that the application should be dismissed and that under Articles 69 and 70 of the Rules of Procedure each party should bear its own costs.

1 Translated from the German.