JUDGMENT OF 12. 7. 1979 — CASE 124/78 LIST v COMMISSION

In Case 124/78,

THE COURT (Second Chamber) composed of: Lord Mackenzie Stuart, President of Chamber, P. Pescatore and A. Touffait, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility

Substance

IV — Oral procedure

Decision

Admissibility

Substance

Costs

I —. Facts and procedure

II —. Conclusions of the parties

1. Declare the decision of Mr Pignot, referred to in the note of 20 June 1977, to discharge the applicant from his duties as co-ordinator of the German section of the Administrative Committee to be null and void;

2. Declare the decision of Mr Pignot that in case of absence of his superiors the applicant should not replace them or receive a temporary posting to be null and void;

3. Declare the decision of Mr Baichère, the Director General, of 27 July 1977 moving the applicant from his post as reviser/co-ordinator in the Administrative Commission to the Task Force for Negotiations with Portugal to be null and void;

4. So far as necessary declare the decision of Mr Baichère of 27 October 1977 putting the applicant at the disposal of Mr Ciancio, the Director, to be null and void;

5. Declare the opposite party's refusal of the applicant's request of 21 June 1977 for protection against the machinations of a number of his colleagues to be null and void;

6. Order the opposite party to pay the costs.

1. The Guide pratique du traducteur [Translator's Practical Guide];

2. The annual report for the 1976 financial year and if necessary for the 1977 financial year of the Directorate General for Personnel and Administration — Translation, Documentation, Reproduction and Library Directorate;

3. The applicant's periodic report for the period from 1 July 1975 to 30 June 1977;

4. The periodic reports of Mr Forster, the applicant's predecessor in the German section of the Administrative Commission (or at least the description of his duties).

1. In the course of a meeting between the applicant and Mr Ciancio on 28 June 1977 the former agreed to the measure placing him at the disposal of the Task Force for Negotiations with Portugal in order to carry out there work in accordance with his category and grade consisting of the translation of Portuguese and possibly Spanish texts into French.

2. In the course of a meeting held at the end of his leave, on 19 September 1977, the applicant informed Mr Duchateau, the official in charge of the Task Force for Negotiations with Portugal that he refused to carry out translations into French in spite of the fact that those translations were not intended for publication.

III —. Submissions and arguments of the parties

1. No reasons are stated for Mr Pignot's decision, in infringement of the second paragraph of Article 25 of the Staff Regulations;

2. The scope and effect of the decision are to diminish substantially the responsibilities of the applicant and thus to reduce his career prospects;

3. The decision constitutes a change of assignment within the meaning of Article 7 of the Staff Regulations which should have been effected by the appointing authority, in this instance a Member of the Commission;

4. Moreover the decision is a disguised disciplinary measure which could only be taken in accordance with the rules laid down in Articles 86 and 89 of the Staff Regulations;

5. The decision was not adopted in the interests of the service but only under pressure from the applicant's colleagues who had conspired against him.

1. As regards the absence of reasons it should be added that as the decision was notified orally it was not communicated to the applicant in writing without delay;

2. The applicant adds an additional argument relating to this head of claim: the decision in no way to appoint the applicant as replacement although he was the senior official in the team constitutes an infringement of Article 26 of the Commission's Internal Rules of Procedure.

1. The contested decision constitutes the sequel to Mr Pignot's decision of 20 June 1977 and bears the same defects; the reasoning is merely stereotyped and does not correspond to the facts of the case;

2. The measure was not adopted in the interests of the service as it was evident that there was no work for the applicant in the Task Force for Negotiations with Portugal.

1. Mr Pignot was entitled not to state the reasons on which his decisions of 20 June and 1 July 1977 were based as the second paragraph of Article 25 of the Staff Regulations concerns only measures which adversely affect an official. The decision of 20 June 1977 on the other hand did state the reasons on which it was based and, furthermore, was supplemented by a note for the record bearing the same date and countersigned by the applicant. As the decision of 1 July 1977 was taken a few days after the first of the contested measures the applicant could not be unaware that the reason underlying the decision was the need to avoid too frequent contacts between the applicant and his five colleagues in the interests of the Service. Finally the applicant provides no evidence to support his argument that the statement of reasons on which Mr Baichère's decision of 27 July 1977 was based has the same defects as that of Mr Pignot of 20 June 1977. In fact examination of Mr Baichère's note shows that the decision was taken both on account of the needs of the Task Force for Negotiations with Portugal and of the applicant's qualifications and his interest in Portuguese.

2. The applicant has not established in what way the contested decisions substantially reduced his responsibilities. The applicant retained his Grade L/A 4 and his duties as reviser. The sole effect of Mr Pignot's decision of 20 June 1977 was to entrust Miss Peppinck, the Head of the translation department and thus the applicant's superior, with responsibility for distributing work between the officials in the German section. The internal measure which for a time had given him responsibility for distributing work was cancelled by another internal measure. Similarly regarding the decision of 1 July 1977 it should be observed that the applicant has no better right than the other revisers to replace the head of the translation department when she was absent; taking the situation in the service into account there was the danger that if the applicant had been appointed to replace Miss Peppinck during her holiday he would have been exposed to fresh incidents which would certainly not have stood him in good stead for possible promotion. Finally regarding Mr Baichère's note of 27 July 1977 it was there emphasized that the decision taken was based in particular on the acknowledged high qualifications of the applicant.

3. Mr Pignot's decision of 20 June 1977 by no means altered the post of the applicant, who retained his duties as reviser; such a measure therefore did not constitute a change of assignment within the meaning of Article 7 of the Staff Regulations and was therefore one which his superior officers were entitled to take. As regards the decisions referred to in the second and third heads of claim in the application the applicant merely makes a reference, without establishing its factual basis, to the argument regarding the alleged change of assignment which had been effected.

4. The applicant submits no evidence to support his contention that the contested decisions were disguised disciplinary measures. There is nothing to support the argument that those measures were based on a reason other than that referred to in the measures in question.

5. The contested decisions were adopted in the interests of the service. Having tried to reconcile the parties without success in view of the absence of the applicant, Mr Pignot had to resolve to remove the contacts which gave rise to incidents between the applicant and his five colleagues which were detrimental to the smooth running of the service. The reason for Mr Baichère's decision of 27 July 1977 was that the Task Force for Negotiations with Portugal needed qualified revisers, that the applicant was sufficiently qualified to work there and that he was interested in Portuguese and Spanish.

IV —. Oral procedure

1. This application, lodged on 29 May 1978, seeks the annulment of four sucessive measures taken in respect of the applicant, an official of the Commission in Grade L/A 4, and the annulment of the Commission's refusal of the applicant's request of 21 June 1977for protection against the machinations of a number of his colleagues. The measures whose annulment he seeks, as described in the orginating application, are as follows:

2. The Commission contends that in so far as the application relates to the four above-mentioned measures it is inadmissible.

3. The Commission argues on the one hand that the application is out of time and on the other that the contested measures fall within the internal organizational powers of the administration and are not therefore measures which may be annulled within the meaning of Article 91 of the Staff Regulations. It is appropriate to examine the last argument first.

4. It appears from the file that in the course of 1975 the applicant was orally given responsibility for co-ordinating the work of the German translation section of the Administrative Commission. It should be noted that the task of co-ordinator is not provided for in Annex I to the Staff Regulations. According to the Guide Pratique du Traducteur [Translator's practical guide] (p. 22), published in October 1975 by the Directorate General for Personnel and Administration, the work of co-ordinators is of a purely technical nature. The supervisory authority remains wholly in the hands of the head of the division who, by that token, is alone responsible for the distribution of work and, where appropriate, the transfer of texts from one group to another … The note of 20 June 1977 by virtue of which the responsibilities of co-ordinator which had been carried out by the applicant were transferred to the head of department, Miss Peppinck, thus in no way affected the applicant's position under the Staff Regulations. That instruction constitutes merely an internal administrative measure which, in so far as it did not affect the applicant's rights under Articles 5 and 7 of the Staff Regulations, cannot form the subject of an application to the Court.

5. The same conclusion must be drawn regarding the decision taken by Mr Pignot on 1 July 1977 himself to replace the head of department, Miss Peppinck, during her absence. That step relating to the organization of the service, which was even more limited in nature than the previous one, does not constitute an act adversely affecting the applicant within the meaning of Article 91 of the Staff Regulations as it in no way affects the applicant's position under those regulations.

6. As the two said measures do not constitute measures capable of forming the subject of an application to the Court it is not necessary to consider whether the application directed against those two measures was introduced within the period laid down by the Staff Regulations.

7. The Commission has also challenged the admissibility of the claim directed against the instruction of 27 July 1977 by virtue of which the applicant was placed at the disposal of the Task Force for Negotiations with Portugal from 1 September 1977. As the Commission points out, that measure was superseded before the application was lodged. In the terms of the statement of the reasons on which it is based the contested measure was adopted solely by reason of the needs of the Task Force and the applicant's recognized qualifications as reviser and it can not therefore be regarded as a disguised disciplinary measure which, even after its withdrawal, might have detrimental effects on the applicant. To the extent to which it is directed against that measure the application is therefore inadmissible as it has lost its purpose.

8. Finally it must also be held that the application is inadmissible in so far as it is directed against Mr Baichère's note of 27 October 1977 placing the applicant at the disposal of Mr Ciancio as the applicant has failed to establish that he has an interest in the annulment of that note against which, furthermore, he did not lodge a complaint through official channels.

9. In view of the foregoing it is necessary to examine the substance only of the applicant's claim relating to the refusal to provide the assistance requested by him.

10. The applicant alleges that the Commission failed in its duty to assist him laid down by the first paragraph of Article 24 of the Staff Regulations by not acceding to his request for protection against the machinations of a number of his colleagues which he made on 21 June 1977. That request followed the submission on 15 June 1977 of a Note for the attention of Mr Pignot signed by the five officials in the translation group co-ordinated by the applicant. In that note the applicant's five colleagues stated that they would thereafter refuse to co-operate with the applicant.

11. The first paragraph of Article 24 of the Staff Regulations provides that: 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.

12. It is evident from the file that in the days following the submission of the said note of 15 June 1977 an attempt was made by the Head of the Division to organize a meeting between the officials concerned but the meeting could not be held as the applicant refused to have a confrontation with the conspirators. Finding that its attemps at effecting a reconciliation were of no avail the administrative authority adopted the various measures described above.

13. Contrary to what the applicant alleges these measures cannot be regarded as constituting a breach of the obligation to provide assistance set out in the first paragraph of Article 24 of the Staff Regulations. Quite apart from the question of who bears responsibility for the incident on 15 June 1977, which it is not necessary for the Court to decide in these proceedings, it should be observed that it was for the applicant, who had been given the task of coordination, to ensure that relations compatible with the proper running of the service were maintained within his working group. Once it became clearly impossible to smooth out the differences which had arisen between the applicant and his five colleagues the defendant institution was entitled to take any appropriate steps in order to restore a peaceable atmosphere in the department in question. The steps taken by the administration namely, first, in giving responsibility for co-ordination which had been carried out by the applicant to his superior and secondly in placing the applicant at the disposal of a department where a reviser with the applicant's qualifications was required, constitute a reasonable reaction to the situation resulting from the deterioration of working relationships in the translation group in question. The measures were thus adopted in the interest of the service and there is nothing to show that the way in which they were adopted detrimentally affected the applicant's interests as an official. In those circumstances the claim for a declaration that the institution failed to fulfil its obligation under the first paragraph of Article 24 of the Staff Regulations must be dismissed.

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

15. However, under Article 70 of the Rules of Procedure, in proceedings by servants of the Communities, institutions shall bear their own costs.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.