Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

The case in which I am giving my opinion today is brought by Mr Jacobus Kindermann against the Commission. Mr Kindermann is a Principal Translator of Dutch mother-tongue and was employed from 1 February 1970 to 31 December 1979 by the Translation Section of the Administrative Commission on Social Security for Migrant Workers (hereinafter referred to as the Administrative Commission), an international body which is provided for by Articles 80 and 81 of Regulation No 1408/71 of the Council of 14 June 1971, and whose secretariat is provided by the Commission.

In his action Mr Kindermann seeks the annulment of the decision taken on 4 October 1979 by Mr Tugendhat, who at the time was the member of the Commission responsible for questions relating to staff and administration. By virtue of that decision the applicant was assigned, with effect from 1 January 1980, no longer to Division IX-D-3, the Translation, General Matters Division, but to Division IX-D-8, the Dutch Translation Division of Directorate IX-D, the Translation, Documentation, Reproduction and Library Directorate. This action thus comes within the class of proceedings, at present very numerous, which in various connexions arise from the decisions on the change in the employment of officials of the Commission with or without a change in the place of residence. It has in particular a close connexion with the action brought by Mrs Elke van Schaik, a colleague of Mr Kindermann in the Translation Section of the Administrative Commission, which is at present pending before the Second Chamber (Case 168/80); a decision was also taken on 4 October 1979 by Mr Tugendhat in relation to Mrs Schaik assigning her to the German Language Division of Directorate IX-D.

The Commission has raised an objection of inadmissibility to the action brought by Mr Kindermann on the ground that the decision taken is a purely internal measure or organization which is not open to complaint and cannot therefore be contested pursuant to Article 91 of the Staff Regulations. On closer consideration it seems to me that this contention is based on two arguments.

The applicant has put forward various arguments on the substance of the case, but has maintained them only to a very partial extent up to the conclusion of the presentation of his case.

First, in his reply he abandoned the submission, which had been the principal one contained in his application, to the effect that there was an infringement of the Commission decision of 24 November 1976 on mobility procedure.

The abandonment of that first submission was in a certain sense compensated for by the fact that, again in the reply, the following three submissions were put forward: breach of the principle of non-discrimination; breach of the duty to have regard to the applicant's welfare and disregard of the rights of the defence. Since these are fresh issues which according to our rules of procedure may not, in principle, be raised during the course of the proceedings, I should have considered them only very perfunctorily, but since the applicant's counsel did not mention them any more in his final speech, I have no hesitation in leaving them completely out of account.

There remain two related submissions: infringement of Article 7 (1) of the Staff Regulations, in so far as that provides that transfers may be made solely in the interests of the service, and misuse of powers. The submission of misuse of powers is of only subsidiary importance in comparison to the submission of disregard of the interests of the service. Only if it is shown that the contested decision was not taken in the interests of the service will it be necessary to seek the true reasons for it elsewhere. If on the other hand it is shown that the decision was justified in the interests of the service it is superfluous to consider whether there is a misuse of powers.

It only remains for me to make my proposals.

I should however first like to mention one matter of concern as Mr Advocate General Capotorti also did recently in his opinion of 29 January 1981 in Case 148/79 (Korter v Council at p. 12 of the hectographed copy). I have the impression that this case could have been avoided. As his advocate mentioned at the hearing, the applicant certainly did not bring the present action because he wished at all costs to continue to work for the Administrative Commission until his retirement, but because he was astonished at the circumstances in which the decision on the change in his employment was taken and the fact that the administration sought to make itself the sole judge of what was in the interests of his career. In that respect I can only agree that it was at least indelicate and detrimental to the confidential relations which should exist between an authority and its officials for a decision on the alteration of the applicant's employment to have been made public in his absence without his being previously informed thereof or being given an opportunity of expressing his opinion thereon and without stating with all due clarity the legal basis for that decision.

Nevertheless I can only propose that the Court should dismiss the application and order the parties to bear their own costs pursuant to Articles 69 (2) and 70 of the Rules of Procedure.

1 Translated from the German.