Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

Changes of posting and transfers, whether or not they take place in the context of the reorganization of a department, have often in recent times been the subject of applications to the Court by the officials affected. Perhaps this is evidence of a malaise of which this case is a further example.

On 17 July 1979, the Commission initiated a reorganization of its Directorate-General for Employment and Social Affairs. This reorganization involved the transformation of the Industrial Safety Division of the Health and Safety Directorate, the head of which was Mr Arning, into a special department under Mr Lemoine, who had previously been head of the Safety Matters in the Coal and Steel Industries Division and who was thus given increased responsibilities. The post in Grade A 3 which therefore became available became a post of adviser to the same directorate, which was given to Günther Arning. It is against the decision relating to this change of posting that Mr Arning has brought this action, which is both an application for annulment and a claim for compensation.

First, Günther Arning relies on the infringement of the second paragraph of Article 25 of the Staff Regulations, which provides 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. Any decision adversely affecting an official shall state the grounds on which it is based.

He believes that neither the requirement that the communication should be in writing and at once nor that relating to the statement of grounds has been met in this case.

However, although the requirement that a decision relating to a specific individual shall be in writing is necessary, it is not sufficient, since the last sentence of the second paragraph of Article 25 further requires that the grounds on which the decision is based must be given. The applicant claims that that condition was not met as regards the disputed decision.

In order to determine whether or not this condition has been fulfilled, reference must be made to the communication of the decision in writing dated 25 September 1979 and not to the Commission decision of 17 July which is an internal document and the grounds of which are not normally known to the officials concerned. The only explanation appearing in that communication is that the Commission adopted its decision in relation to Günther Arning in the context of measures relating to the reorganization of Directorate-General V, for Employment and Social Affairs.

According to Günther Arning, the decision regarding his change of posting is void on another ground, in so far as, by adopting it, the Commission failed in its duty of care towards its officials (Fürsorgepflicht).

In the words of the judgment in Kuhner, the duty to look after the well-being of its officials (Fürsorgepflicht) has been defined as the duty ... according to which when the authority enacts measures it must take account not only of the interests of the service but also of the interest of the official in avoiding any detriment to his career (paragraph 18). The judgment in Kuhner also states that although this concept is not mentioned in the Staff Regulations of Officials of the European Communities, it reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants (paragraph 22). More precisely, a particular consequence of this balance is that when the official authority takes a decision concerning the situation of an official, in this case his assignment to a specific post, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned (paragraph 22).

The applicant alleges that the Commission failed in the duty of care which it owed to him, by not taking into account, when it decided to relieve him of his duties as Head of the Industrial Safety Division, either his considerable experience in his field, or his ability in the subject, shown by his periodic reports, so as to damage his professional standing and reputation.

In my opinion, these allegations do not amount to breaches of the duty to look after the well-being of officials as defined by the Court. First, it is clear that it is not for the Court to put itself into the position of the administration by determining the advisability of a decision concerning a change of posting, as the applicant's arguments appear to invite the Court to do (see in this regard the opinion of Mr Advocate General Reischl in Case 61/76 Geist v Commission [1977] ECR 1419 at p. 1441, referred to in his opinion in Case 60/80 Kindermann ν Commission [1981] ECR 1329).

Furthermore, I cannot see in what way a change of duties from head of division to adviser may damage the standing and reputation of the official involved, always provided that this change is carried out in due form.

In his third and final submission, Günther Arning accuses the Commission of changing his posting without consulting him in advance. In his application, he took the view that this failure was an infringement of the rights of the defence, but following the judgment in Kuhner he decribed them as a breach of the principle of good administration.

It remains for me only to examine whether the applicant's claim that the Court should order the Commission to pay him damages of one unit of account in respect of the non-material damage which he claims to have suffered is well-founded. In his view, the alteration of his duties from those of head of division, which, in addition, he had directed for many years, to those of adviser, caused him non-material damage on account of its effect on his standing and reputation in so far as it exposed him to lasting discredit. It would be Otherwise, he alleges, only if he had applied for the post of adviser or had at least agreed to such a change of posting.

In order for this application, which must be regarded as a claim for damages, to be successful, the case-law of the Court requires that, in adopting the contested decision, the administration should have committed a wrongful act or omission and that such act or omission should have caused the applicant injury (judgment of 13 July 1972 in Case 79/71 Heinemann ν Commission [1972] ECR 579 at p. 589, paragraph 9).

Its is apparent that the considerations mentioned by the applicant in no way prove that the Commission committed a wrongful act or omission in relation to him. In the context of its powers in relation to its internal organization, the administration is perfectly entitled to alter the posting of an official, even against his will, by moving him, as in this case, from one basic post in his grade to another (judgment of 28 May 1980, Kuhner, as above, paragraph 20 at pp. 1696 and 1697). In itself the contested decision cannot be regarded as a wrongful act or omission on the part of the administration.

On the other hand, by the conditions in which it was adopted, it seems to me to reveal improper conduct on the part of the administration. In not giving the applicant the opportunity to express his point of view on the decision planned concerning him, then in not putting him in a position to know the precise grounds on which that decision was based and in failing to communicate it to him in writing and at once, the Commission seems to me to have committed several negligent acts for which it must be held liable.

These circumstances also explain why the applicant feels that his personal standing has been damaged by the contested decision, of which he might legitimately wonder whether it was the result of his personal conduct or inadequacy in the performance of his duties, up to the time of the official assurances contained in the reply to his complaint. It may also be imagined that he was affected by the rumours and surmises which were the result of the conditions in which the contested decision was adopted. It seems to me that the reality of the non-material damage which the applicant has suffered is undeniable.

The nominal damage which he claims seems to me, therefore, to be justified.

In short, for all the aforementioned reasons, my opinion is that the Court should:

1 Translated from the French.