Opinion of Mr Advocate General Reischl
Mr President,
Members of the Court,
Maria Grazia Carbognani and Marisa Coda Zabetta had both worked for the Commission, the former in Luxembourg since September 1962 and the latter in Brussels since September 1965, when they were assigned as secretaries to the Information Office in Rome, where they took up their duties early in September 1968.
Relying on an established administrative practice of leaving officials permanently in the same place of employment, they had long assumed that the assignment was to be permanent, in other words that they were to remain in Rome definitively. They reacted immediately, therefore, when they received a circular dated 17 December 1979 signed by the Director-General for Personnel and Administration to the effect that they were to prepare for their return to headquarters, in September 1980 at the latest, in accordance with a decision taken by the Commission on 28 November 1979.
The letter and the decision merely put into effect the rotation system for staff in the Information Offices (Annex V to the application) introduced by the Commission on 24 November 1976. The system provides inter alia that the normal length of the initial assignment to an office is to be three years (paragraph 3.2), with the possibility of extending that period exceptionally up to a maximum of six years (paragraph 3.3). At the end of that period officials are then re-assigned to Brussels, one of the provisional headquarters of the Commission or, if they so wish, to another information office or even, as may be seen from the rotation form to be filled in by officials in those offices in 1979, to one of the Commission's external delegations. Their duties are usually taken over by other officials in their grade, as implied by the term rotation (paragraphs 1.2 and 2.1).
The rotation system applies to officials in Categories A, B and C, but the Commission provided in its decision of November 1976 for a more flexible procedure in the case of officials in Categories B and C so that in certain circumstances problems relating to the service or difficulties of a personal nature which might arise could be taken into account. From the documents before the Court (Annex VI to the application, p. 14) it appears that officials are exempted from participation in the rotation system if their assignment to an office was made before the decision introducing the system was adopted and either they are aged 55 or over, or their personal, family or social situation stands in the way of their transfer.
The system was originally intended to come into effect on 1 July 1979 at the latest (see the section headed III — Transitional Period in the decision of 24 November 1976). However, in view of the activities connected with the election of the European Parliament, the Commission later decided to postpone all rotation decisions until September 1979 (memorandum dated 7 November 1979, Document SEC (79) 1781 p. 3, Annex VII to the application) and the system was not in fact introduced until 1980.
In the rotation forms filled in by the applicants for the transfers to be effected in 1980 both declared that they did not wish to be re-assigned for the personal and family reasons they set out therein. Their cases were considered by the rotation committee created by the decision of 24 November 1976 (paragraph 2.3) when it met on 2 October and 26 November 1979. The committee found that the personal and family reasons put forward by them were not sufficient to warrant their exemption from the system; on the contrary, it included their names in the staff rotation list proposed for 1980. On 28 November the Commission approved the proposal and formally placed the applicants' names on the list; the applicants were informed of this by the Director-General for Personnel and Administration in a circular sent to each of them on 17 December 1979.
As the Director-General had announced in his letter, the rotation procedure followed its course with a notice in the Staff Courier of 25 January 1980 inviting applications for the vacant posts of Miss Carbognani and Miss Coda Zabetta as Italian-speaking Secretaries (Grade C) in the Information Office in Rome.
At the same time the applicants endeavoured to have implementation of the Commission's decision in their cases stopped or at least postponed. On 16 January 1980 Miss Coda Zabetta drew the attention of the authorities to her case by means of a letter to the Commission's Spokesman and Director for Information; the latter replied that the details of her personal and family circumstances had been known to the rotation committee when it examined her case and made its proposal. On 12 March 1980 the applicants submitted complaints under Article 90 (2) of the Staff Regulations of Officials against the decision of 28 November 1979 contained in the circular of 17 December 1979.
Without waiting for a reply to those complaints or the expiry of the period allowed for such a reply in the Staff Regulations, the applicants brought the present actions on 11 July 1980 under Article 91 (4) of the Staff Regulations, accompanying the applications with requests for the suspension of the execution of the decision of 28 November 1979 communicated to them in the letter of 17 December 1979.
In an order of 31 July 1980 the Judge acting as President of the Court of Justice declared that in the light of the Commission's written observations and the submissions of the parties in the oral procedure which had taken place that day it was not necessary to adjudicate upon the applications for the adoption of interim measures as the Commission did not intend to take any action on the intention evinced in the letters of 17 December 1979 until it had adopted formal re-assignment decisions with regard to the applicants which would allow reasonable periods for their implementation. That same day, in the evening, the Head of the Management and Organization Department adopted the said formal decisions in his capacity as appointing authority for the reassignment of officials in Categories C and D together with their posts (Annex VIII to the Commission's observations on the first application for the adoption of interim measures). By means of those decisions the applicants were re-assigned together with their posts with effect from 1 January 1981. They were immediately informed thereof by telex.
The express decision rejecting the applicants' complaints of 12 March 1980 was issued subsequently and notified to them on 3 September 1980, that is to say after expiry of the time-limit, as happens only too often.
A complaint under Article 90 of the Staff Regulations against the decisions of 31 July 1980 was submitted by the applicants on 20 October 1980, that is to say, after they had lodged their reply on 16 October and only a few days before the expiry of the three-month period allowed for submitting complaints under Article 90 (2).
Finally, on 5 December 1980 the applicants lodged a second application for the adoption of interim measures, again requesting the suspension of their transfer from Rome to Brussels. They withdrew the application, however, on 17 December 1980, after the Commission had in the meantime stated that it was prepared to allow them a further postponement until 1 April 1981 at the latest. The granting of this additional postponement was founded on the fact that the rotation system had only recently come into operation and on the hope that the action would soon proceed to judgment.
I — The first question to be dealt with concerns the admissibility of the applications.
II — The first submission relied on by the applicant divides into two parts of quite different weight. If I understand the applicants' arguments correctly, the essence of their view is that application of the rotation system in their cases is inadmissible because on the one hand it was given retroactive effect and on the other hand it runs counter to the interests of the service and therefore contravenes Article 7 (1) of the Staff Regulations.
As to that last requirement, I should like to make it clear that it comprises not only the general duty to assign the official to a post in his category and grade, but also the more specific duty to assign him to a sphere of activity which reflects his grade and which is described in the list of basic posts and corresponding career brackets set out in Annex I A to the Staff Regulations (judgment of the Court (Third Chamber) of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner v Commission [1980] ECR 1677, paragraph 13 of the decision).
I think that two further requirements to be found in the above-mentioned Kuhner decision should be added to the conditions. When the administration is contemplating the transfer of one of its officials it has a duty to ensure that regard is had not only to the interest of the service but also to the interests of the official, a requirement which is known in German civil service law as the Fürsorgepflicht [duty to have regard to the interests of officials] (paragraph 22 of the decision in the Kuhner judgment). In so far as a decision concerning reassignment might cause serious detriment to the interests of the official concerned the general principle of good administration requires that, unless exceptional circumstances exist, the official be given an opportunity to state his views (paragraph 25 of the decision in the Kuhner judgment). It may be assumed that in certain cases a re-assignment is capable of seriously prejudicing the interests of an official, especially if it requires a major change of location.
In the present instance the applicants have expressly pleaded only a breach of the requirement that the interests of the service be satisfied. They perceive such a breach not only in the fact that the Commission has no power to alter the provision which, as we have seen, contains that requirement, but also in other respects.
Thus they claim that it is not sufficient for the administration to rely on the interests of the service in general in order to make the re-assignment lawful. It must go further than that and indicate in what precisely those interests consist, and also that they are of sufficient importance in comparison with the interests of the official concerned which is thereby prejudiced. By postulating that last-mentioned requirement the applicants refer, without expressly naming it, to the duty to have regard to the interests of officials, the scope of which was defined by the Court of Justice in the Kuhner judgment. There would in fact be a breach of that duty if a re-assignment were of very minor importance for the administration but had grave consequences for the officials who were the victims thereof.
I think this is precisely the position as regards the system in question, at least in certain circumstances. As has been generally agreed, it is in the interests of the service for the rotation procedure to be periodically applied in the case of officials in Category A who have executive responsibility, and especially the heads of information offices. One might likewise go so far as to say that, in view of the discretion enjoyed by the administration in organizing its services the rotation system may also apply in principle to officials in Category B, including senior secretarial assistants, because of the independence required of them in carrying out their duties. However, I cannot conceive how it can be in the interests of the service to extend a system as cumbersome in form and stringent in terms as the rotation system to clerical officials in Category C such as secretaries. In the absence of any interest of the service I consider the applicants' first submission well founded.
It is, in my view, equally well founded if one compares, on the one hand, the absence of any interest on the part of the administration in applying the rotation system to the applicants and, on the other hand, the latters' interest in resisting its application. Even if a transfer from one country to another cannot be viewed as an unusual and unforeseeable incident in the career of Community officials it is understandable that it may cause considerable difficulties of a personal and human nature, such as those which have been described by Miss Carbognani and Miss Coda Zabetta (Annex IV to their applications) and into which I do not wish to enter more deeply here for the sake of discretion. In this context it is clearly not without significance that the applicants were assigned to the office in Rome more than ten years ago and that they assumed — incorrectly, but on the basis of a consistent administrative practice which has not been denied by the Commission — that the assignment was to be permanent. In these circumstances I consider that the decision to apply the rotation system to the applicants in 1980 constituted a breach of the administration's duty to have regard to their interests.
III — In their second submission the applicants allege that there has been an infringement of the second paragraph of Article 25 of the Staff Regulations which states that any decision adversely affecting an official shall state the grounds on which it is based. Those grounds must, I would add, be given in detail. In the opinion of the applicants the statement of grounds contained in the letter of 17 December 1979 from the Director-General for Personnel and Administration and in the invitation for applications published in the Staff Courier of 25 January 1980, to the effect that the measures were adopted in order to implement the rotation system, is inadequate.
The fact that those documents do not represent measures adversely affecting the officials does not in my opinion constitute an obstacle, for the Commission's original decision of 14 November 1979, to which I attribute just that character, contained the same statement of reasons as those documents, which constitute measures for the implementation of that decision. It could not be otherwise, for, as we have seen, that decision, whereby the list of staff movements between headquarters and the various offices for 1980 was drawn up, was the first decision concerning implementation of the rotation system.
In my view this submission divides essentially into three parts.
1. As to the first complaint made here against the disputed decision, the applicants reiterate their view that application of the rotation system in their case is being made retroactively. But there was no provision for such retroactive application in the Commission's decision of 24 November 1976 introducing the system. Therefore, according to the applicants, the decision in which the rotation system is given as justification for their transfer is incorrectly grounded.
2. The second part of the submission based on an inadequate statement of reasons appears to me to be well founded. As I have already said, the decision of 24 November 1976 established the principle of rotation for B and C staff with a measure of greater flexibility to allow for any problems relating to the service or difficulties of a personal nature which might arise.
3. In their reply the applicants submitted further that the reasons given for the decisions affecting them were defective in another respect; this point was treated by them in the course of the oral procedure as a new issue.
Of course it must be accepted that the use of the term rotation to describe the system in question is not entirely correct; it implies that officials from the offices concerned are, in principle, to be replaced. That also seems to be the tenor of the provisions of the decision introducing the system which emphasize the need to ensure continuity in the service (see I: Purpose of the Rotation System; II: Application of the Rotation System, paragraph 2.1), especially the provision that officials employed at the Commission's other locations, particularly Brussels, be informed as to the opportunities for transfer to the information offices in order to enable them to submit their applications within the context of the rotation system (see II: Application of the Rotation System, paragraph 1.2). If one reads them carefully, however, those provisions do not say that every official assigned or re-assigned to Brussels must be replaced, if the administration finds that the duties for which he was responsible can be assumed by colleagues who remain on the spot.
Naturally, it would be logical to assume that if the administration has taken the first steps in a procedure for transfer by means of rotation, by informing officials of their change of assignment and publishing invitation for applications to succeed them, it will continue the procedure to its end. However, if it decides in the meantime that it would be preferable not to replace the officials I do not think it can be reproached for doing so as it would be equally within its powers to re-assign the superfluous officials without recourse to the rotation system, solely on the basis of the interests of the service (judgment of the Court (First Chamber) of 11 July 1968 in Case 16/67 Labeyrie v Commission [1968] ECR 293, at p. 302 et seq; judgment of the Court (First Chamber) of 16 June 1971, Vistosi v Commission [1971] ECR 535, at p. 542, paragraph 14 of the decision; judgment of the Court (Second Chamber) of 14 July 1977, Geist v Commission [1977] ECR 1419, at p. 1434, paragraph 38 of the decision). In the case of Miss Carbognani and Miss Coda Zabetta I am of the opinion that the information supplied by the Commission sufficiently explains the interests of the service.
IV — In conclusion I propose, for the reasons explained in Sections II and III.2 above, that the Court:
1 Translated from the German.