Opinion of Mr advocate general Mayras

Mr President,

Members of the Court,

The point at issue in this case is of no small importance for it will enable you to decide the best way of reconciling the freedom which must incontestably be given to the administration to change the way in which its services are organized with the requisite protection for officials affected by such reorganization to the extent that it may seriously affect their professional position and their position under the Staff Regulations.

The reorganization of the Statistical Office of the Commission, decided upon in June 1978, has given rise to this dispute. It involved the abolition, from 1 September of that year, of several special departments including the Department for statistics relating to Other countries which was integrated into a larger administrative unit. Richard Kuhner, a Principal Administrator in Grade A 4, had been at its head since its creation.

At the time of abolishing this department the Commission instructed Mr Ortoli and Mr Tugendhat to consider any specific measures which could be taken in regard to the position of Mr Kuhner ....

Pursuant to these terms of reference the two members of the Commission gave him special assignments on methods under the authority of the head of Division F 1 of the Statistical Office which deals with statistical methods and classification of external trade.

The official was officially informed of his new posting by the photocopy of a letter dated 29 or 30 June 1978 (it bears both dates) signed by a member of Mr Ortoli's cabinet.

On 17 July 1978 he was called for an interview with his director-general who has left us a written report of it. According to this report, which in this respect is not disputed, one of the questions broached was the areas of activity which might interest the applicant after the abolition of his small unit.

It was in these circumstances that on 26 July Mr Kuhner submitted a complaint against his new posting. As he received no reply to this complaint, on 28 February 1979 he brought an action before the Court (Case 33/79). At the present stage of the proceedings the action is for the annulment of the decision relating to the new posting of the applicant and for compensation for the material and non-material damage which he has suffered as a result.

On 8 September 1978 the Commission took its decision on the re-assignment and posts of officials in Grades A 4 to A 7 at the Statistical Office, including the applicant.

It was only by a letter of 3 November 1978 signed by the Director-General of Personnel and Administration however that Mr Kuhner was officially informed of his new posting.

Finally on 21 March 1979 the Commission expressly rejected the complaint of 26 July 1978 which led to the complainant bringing a second action (Case 75/79) for the annulment of this express decision. The defendant objected that this action is inadmissible and I shall deal with that objection straight away.

A. The Commission submits that the action against the express rejection of the complaint is inadmissible because that act is a pure and simple confirmation of the decision which was complained of.

B. The Commission also raises an objection of inadmissibility in Case 33/79 in so far as it claims annulment of the letter from the Director-General for Personnel. This letter was in fact only confirmation of the decision concerning the posting which was already known to the applicant.

The first submission relied upon by the applicant against this decision is that of infringement of the second paragraph of Article 21 of the Staff Regulations. As the Court is aware, this provision states that any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned and that any decision adversely affecting an official shall state the grounds on which it is based. Although, as the facts of the case show, the applicant would have some ground for alleging infringement of the first sentence cited, he confined himself to the absence of a statement of the grounds on which the decision was based.

As Mr Advocate General Reischl reminded the Court very recently in his opinion on Case 89/79 (Bonu v Council), the general principle of law by which decisions adversely affecting individuals must state the grounds on which they are based derives from the principle of the rule of law (Rechtstaatsprinzip), which also forms part of the Community legal order, and is embodied in ... the second paragraph of Article 25 of the Staff Regulations.

In the opinion of Advocate General Reischl, the meaning and purpose of this obligation to give a statement of the reasons for decisions adversely affecting a person is to allow the person to form an opinion on the question whether the decision has been made in a lawful manner or is defective, so that its legality may be challenged ...; it follows therefore that the statement of reasons must be notified to the person concerned together with the decision adversely affecting that person.

I may add that the absence of a statement of reasons makes judicial review by the Court very difficult if not impossible.

What is the position in regard to this case?

It is clear that the decision which must be examined to see whether it states the reasons on which it is based is not the one abolishing the special department under the direction of the applicant. Moreoever it is not this measure of a general nature which the applicant challenges; indeed he could not do so since such a measure does not adversely affect an official within the meaning of Article 91 of the Staff Regulations as the Court has ruled in its judgment of 16 December 1964 (Joined Cases 109/63 and 13/64 Muller v The European Economic Community or alternatively the Commission [1964] ECR 663).

Furthermore, if this measure had not been taken and the applicant could have remained head of his special department, it is possible that a posting other than the one which he received would have satisfied him. This emerges from the fact that his action originally also sought the annulment of the appointment of another official as head of the special department concerned with Wages and Incomes: Mr Kuhner says that he would have considered those duties as an acceptable alternative after the abolition of the special department of which he was head.

There is therefore clearly a discretionary element in the disputed choice of the applicant's posting after the reorganization of the Office. The effect of there being no link between the two decisions is that the statement of grounds for one decision cannot, in itself, justify the absence of a statement of reasons for the other decision. It is necessary, therefore, to examine only the statement of grounds for the decision concerning his posting.

It is further necessary to ascertain whether the act produces adverse effects.

Since the Commission itself, acknowledging the admissibility of the action, expressly states that the decision entrusting the applicant with special assignments on methods within Division F 1 is capable of adversely affecting his non-material interests, in my opinion, there is still less room for doubting that the answer to this question must be in the affirmative. It is clear from the Court's judgment of 27 June 1973, (Case 35/72 Kley v Commission [1973] ECR 679 at pp. 688-689) that a decision of this nature is an act adversely affecting an official within the meaning of Article 25 of the Staff Regulations and it must consequently state the reasons on which it is based.

Does it do so?

The answer to this question is certainly no for the simple reason that the disputed decision did not appear in the file on the case. Nor was it submitted after an express request had been made.

All that we know is that it is not to be confused with the decision of 7 June 1978, changing the organization of the Statistical Office, since at paragraph 7 of that measure the Commission reserves the matter of the posting of the applicant and asks Mr Ortoli and Mr Tugendhat to deal with his particular case.

There then follows a period during which the disputed decision must have been taken; no one knows on exactly what date, nor in what form nor, a fortiori, the precise content of it. This period is from 7 to 29 or 30 June.

As I have already indicated, the dates appear on the letter confirming to the Director-General of Eurostat the new duties which Mr Ortoli and Mr Tugendhat had assigned to the applicant. It is common ground that that letter on no account constitutes the decision but only communication of it.

In regard to the collective decision of 8 September taken under paragraph 8 of the Decision of 7 June laying down the reassignment and the postings of the officials in Grades A 4 to A 7 at the Statistical Office, although it does include the name of Mr Kuhner, one cannot, in view of the circumstances, treat it as anything other than a confirmatory decision vis-à-vis the applicant and even as the retrospective regularization of the missing decision which is the only one which adversely affects the applicant. That is why the grounds on which the decision is based, which, after all, simply amount to the very general consideration of the interests of the service, can on no account make good the formal defect in the initial act, the only one with adverse effects.

What is the effect of there being no statement of the grounds on which the decision was based?

Until very recently the case-law of the Court would have led me to state that this is not sufficient in itself to lead to the annulment of the decision in question since, in the words of the Court's judgment of 29 September 1976 (Case 9/76 Morello ν Commission [1976] ECR 1415 at p. 1422), an applicant can have no legitimate interest in obtaining the annulment, on the ground of the absence or inadequacy of the reasons on which it is based of a decision which could certainly be confirmed in substance, in the absence of a mistake of law or of fact ....

But now, in its judgment of 28 February 1980 (Case 89/79 Bonn ν Council, [1980] ECR 553), the Court has annulled a decision by the Council refusing to admit a candidate to a competition on the sole ground that the statement of the reasons for the decision was inadequate. In view of the concurring opinion of Mr Advocate General Reischl which I have quoted, it appears to me that the significance of this decision goes far beyond disputes about admission to competitions.

Moreover, in this case, it is not only on account of the inadequacy of the statement of reasons but because of the absence of any such statement that the Commission may be criticized.

In these circumstances I shall deal with the other submissions of the applicant only On a somewhat subsidiary basis. At least in this way I can set out my views on the reconciliation of interests which I referred to at the start.

The applicant first alleges infringement of Articles 5 and 7 of the Staff Regulations under which the duties assigned to an official must, taken as a whole, conform with a post corresponding to the grade which he occupies.

A. In fact, as the Commission rightly comments, this single submission covers not only the formal infringement of those provisions but also an alleged misuse of the Commission's powers.

B. As regards the infringement of Articles 5 and 7 itself, the applicant contends that he has in fact been downgraded since his present duties are plainly inferior to his previous duties in regard both to their character and their importance and scope.

C. But the applicant is also complaining that Articles 5 and 7 of the Staff Regulations have been infringed owing to the fact that he has lost the duties of the head of a special department which he had had for five years.

Such a basis might be a breach of the duty which the applicant thinks the administration owes its staff to look after their well-being.

A. The duty to look after the well-being of officials (Fürsorgepflicht) is a concept from German civil service law and is statutorily embodied in Article 79 of the Bundesbeamtengesetz [Federal Law on Officials].

B. The applicant takes the view that both his new posting and the circumstances surrounding it are a serious breach of the administration's duty to look after his well-being. In taking the contested decision the administration did not have sufficient regard to his years of service, his abilities, his experience, the responsibilities which he had previously held, or to the harmful repercussions on his standing and reputation by seriously compromising his prospects of further advancement.

C. Do those similarities mean that the duty to look after the well-being of officials does not have any specific content of its own? I do not think so because it comprises an obligation for an administration not to take measures in regard to an official which are likely to affect adversely his standing and reputation and not to cause his progress in his career to be improperly obstructed.

D. In fact I regard it as a principle of law, breach of which should be penalized by the Court. It seems to me that, although the Court has not stated it expressly, it has already acknowledged by implication that it is of this nature.

E. We must now examine whether the administration has injured the applicant's standing and reputation and improperly obstructed his career by changing his posting.

The only submission put forward in support of the decision concerning the posting in issue which I have not yet examined concerns the observance of the rights of the defence.

A. The applicant believes that he has the right to be informed and consulted beforehand about planned changes in postings which affect him, especially since the Commission specifically gave two of its members the responsibility to consider any specific measures which could be taken in regard to the position of Mr Kuhner.

B. I would point out in the first place that certain Member States have made provision for procedures which limit the discretionary power of the administration and enable an official to be heard either directly or through his representatives.

C. Within the Community bodies, the right of an official to be heard before a decision regarding his posting is made has already been supported in a comparative law context less favourable to this argument by Mr Advocate General Roemer in Joined Cases 18 and 35/65, Gutmann ν Commission of the EAEC. In that case, which was similar to this one and concerned a compulsory transfer, the applicant had clearly not been informed of the statements which led to the decision he challenged. Mr Advocate General Roemer considered it doubtful whether such a procedure can be considered proper, even if the Staff Regulations do not expressly say that an official who is to be transferred must be given an opportunity to defend himself ([1966] ECR 103 at p. 130).

D. For that reason I propose that the Court should acknowledge that in certain circumstances such a decision is likely to have serious detrimental effects for the interests of individuals.

It remains for me to give my views on the applicant's application that the Commission be ordered to pay damages for the contested decision.

Since, in my opinion, it has been shown that the decision is unlawful, the first condition for the award of damages is therefore fulfilled. But the applicant must in addition adduce evidence that this decision has caused him damage.

Clearly this condition is not satisfied as regards the alleged material damage consisting of the applicant's loss of prospects of promotion to the higher career bracket. It is clear that there is not the sufficient certainty, necessary under the Court's case-law (judgment of 2 July 1976, Joined Cases 56 to 60/74 Kampffmeyer ν Commission and Council [1976] ECR 711 at p. 741), of a principal administrator with the duties of head of a special department reaching Grade A 3.

On the other hand, as I have shown, I think that the measure in issue and the circumstances in which it was taken can only be regarded both inside and outside the Commission as adversely affecting the standing and reputation of the applicant, despite the Commission's submissions to the contrary. I therefore propose that the Court order the defendant to pay the applicant one unit of account which he claims as nominal damages.

In consequence I submit that the Court should:

1 Translated from the French.