Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

Théo Nebe, an official in Grade A 4, has brought an action before the Court against the Commission of the European Communities concerning its decision of 24 November 1981 to reassign him from Division VI/D/1 (Milk Products) to Division VI/G/4 (Clearance of Accounts, Irregularities and Frauds) within the Directorate-General of Agriculture.

I — The facts are as follows:

Théo Nebe was engaged by the Commission as a probationary official by virtue of Article 29 (2) of the Staff Regulations of Officials After he had been established he was promoted on several occasions and finally on 13 July 1973 to Grade A 4 with effect from 1 January 1973. For more than 19 years he performed his duties in the Milk Products Division of the Directorate-General for Agriculture (the title of which has been changed on several occasions).

On 12 March 1981 Mr Villain, the Director-General for Agriculture, circulated a memorandum for the attention of the staff of that Directorate-General which defined his policy regarding the mobility of the officials under his authority. I would refer to three elements thereof:

On 13 October 1981 Mr Villain suggested to Théo Nebe that he should be reassigned to a post in the Clearance of Accounts, Irregularities and Fraud Division of the directorate for the European Agricultural Guidance and Guarantee Fund.

After discussions with leading officials of the European Agricultural Guidance and Guarantee Fund in the course of which his duties were explained Théo Nebe sent a memorandum to Mr Villain declining his suggestion and giving reasons for his refusal.

On 29 October Mr Villain repeated his oral proposal in writing. After replying to the applicant's objections he asked him to commence his new duties on 1 December 1981.

On 4 November Mr Villain sent to the Director-General for Personnel and Administration a list of reassignments to be decided upon by the appointing authority and the name of Théo Nebe appeared on that list.

On 24 November the formal decision reassigning him was taken. The post occupied by him was transferred from Division VI/D/1 (Milk Products) to Division VI/G/4 (Clearance of Accounts, Irregularities and Fraud) with effect from the following 1 December. That measure is the subject of this application.

Representations made by the German Minister of Agriculture and the Luxembourg Minister for Foreign Affairs that Mr Nebe should remain in his former post were unsuccessful.

On 30 November Théo Nebe informed the Director-General for Personnel and Administration of his intention to lodge a complaint against the decision concerning him and of which he actually received notice on 18 December 1981.

On 18 December 1981 he lodged a complaint pursuant to Article 90 (2) of the Staff Regulations. He contended that the decision of 24 November 1981 was illegal for three reasons :

Since the Commission remained silent for four months the objection was deemed to have been impliedly rejected on 18 April 1982. Subsequently it was explicitly rejected on 1 October 1982, which may be regarded as a very slow response.

In the meantime Théo Nebe brought the present action which was lodged at the Court Registry on 12 July 1982. The Commission's statement of defence was lodged on 20 September.

Before considering the arguments submitted by the applicant it is necessary to decide whether or not the contested decision was adopted pursuant to what is known as the mobility procedure. Guidelines for that procedure were laid down by the Commission at a meeting on 23 July 1980 and the details of its implementation were fixed by the Commission on the following 29 October. According to those rules measures taken to reassign an official must comply with certain requirements as to procedure and substance. Moreover, the Commission emphasizes that the new procedure is not intended to replace the system of transfer and reassignment with the officials's post currently in. force. As the Court is aware decisions of the latter type need only comply with the two requirements referred to in Article 7(1) of the Staff Regulations: the interests of the service must be respected and the post must correspond to the official's grade.

It is essential to consider that question frist: if the decision concerning Théo Nebe's assignment was not taken pursuant to the decision of 29 October 1980 relating to mobility but was merely a decision reassigning him with his post, there is no need to consider either his second submission, that there has been an infringement of that decision, or the arguments flowing from it to be found in all the other submissions.

The Commission maintained that the latter alternative applied in the present case and the Court requested, in order to enable it to determine the accuracy of that assertion, the production of:

An examination of those documents shows, without doubt, that the decision adopted with regard to Théo Nebe dated 24 November 1981 could not have been adopted in the context of the mobility procedure laid down by the Commission on 29 October 1980. In fact the first stage of the procedure, that is to say the publication of preliminary lists of all the officials who had not had a significant change of assignment for a given period (three years or more for officials in Grades A 6 and A 7, for example; more than five years for officials in Grades A 4 and A 5), did not take place until 15 February 1982. With regard to category A, it related only to officials in Grades A 7 and A 6. Furthermore, that procedure applies to all the departments of the Commission with the exception of scientific and technical personnel. It is not therefore applied separately in each Directorate-General.

It follows that the decision adopted with regard to Théo Nebe falls within the provisions of Article 7 (1) of the Staff Regulations.

Nevertheless, the decision does have some special characteristics since it is clear from the evidence submitted that it was adopted pursuant to the mobility policy outlined by the Director-General for Agriculture in his memorandum of 12 March 1981 and implemented solely within that Directorate-General.

Thus there is now no purpose in examining the applicant's submission, and the arguments supporting it, in respect of the failure to observe the Commission's decision of 29 October 1980.

III — As the application is indubitably admissible, I will examine the substance of the dispute.

Théo Nebe makes four submissions:

First submission

The applicant relies in the first place on Article 7(1) of the Staff Regulations which lays down two requirements: the interests of the service and ensuring that the post corresponds to the official's grade. To be precise the provision states that:

In the present case the decision does not amount to a transfer, which presupposes the existence of a vacant post, but is a reassignment with the official's post.

Théo Nebe does not contend, moreover, that his new post does not correspond to his grade, nor in particular that it is at a level below his grade, but questions whether his reassignment was decided solely in the interests of the service.

The Court's case-law has already defined the concept of solely in the interest of the service. The Court has recognized that the Community institutions have a wide discretion in the organization of their departments in accordance with the tasks entrusted to them and in the assignment, with those tasks in view, of the staff placed at their disposal.

In addition the Court has placed upon officials the burden of proving that the decision taken with regard to them is not in the interests of the service or, to use the wording adopted by the Court in the Kindermann case, that in taking the decision in question, the Commission has exceeded [its discretionary] power.

First argument: recruitment under Article 29 (2) of the Staff Regulations

In support of his submission Théo Nebe relies essentially on four arguments which must be considered individually:

First argument: recruitment under Article 29 (2) of the Staff Regulations

In both his complaint and his application Théo Nebe maintained that his reassignment to duties other than those for which he was recruited direct and by a procedure other than that which is normally adopted was incompatible with the legal basis of his recruitment and the interests of the service. He has now withdrawn that argument, which certainly went too far, and argues instead that:

It is true that it is not sufficient for the administration to invoke in the abstract the interests of the service for an alteration in the employment of its officials to be ipso facto lawful. The concept of the interests of the service is an imprecise and vague one. Its mere mention, which can take on the character of a commonplace and correspond to nothing precise, is not sufficient for even a limited judicial review to be possible. It is therefore necessary for the administration to be in a position to state the specific nature of such interest.

As regards the second point it appears that in the case of an official who is recruited under Article 29 (2) it is essential to consider with particular care whether the decision relieving him of the duties which required special qualifications on the part of the person recruited to perform them really is in the interests of the service. In fact the level of expertise implied by that method of recruitment leads to a presumption that the official in question is more useful performing those duties than others. The administration's discretion must be more limited in such a case than it is generally. However, once the expert has left his initial post it seems to me that the Court's ordinary case-law may be applied.

Second argument: prejudice caused to his former division without a benefit for his new division

It is maintained that the departure of Théo Nebe disrupted the organization of the Milk Products Division without any benefit to the division to which he was reassigned. The interests of the service therefore require that he should be retained in the duties performed by him in the former division.

The applicant contends that:

Third argument: failure to take into account his personal interest

In the view both of the Commission and of the applicant it is necessary, on the reassignment of an official, to reconcile the interests of the service with the personal interest of the official as far as possible. Théo Nebe concedes that in the case of conflict the interests of the service must prevail over the personal interest of the official.

But the parties differ as to the application of those principles to the present case. In the applicant's opinion the administration has clearly infringed its duty to have regard for his welfare [Fürsorgepflicht]. By forcing him to perform duties which do not correspond to his particular expertise it has failed to take into account his personal interest.

Théo Nebe contends that two matters must be considered:

In fact, Mr Villain was aware of those matters but they do not appear to have been decisive in view of the imperative requirements of the service.

It seems to me that that argument is well founded. In any case Théo Nebe ceased to rely on family reasons both in his complaint prior to the commencement of proceedings and during those proceedings. With regard to the difficulty of continuing to collaborate in the publication of Das Recht der Milchwirtschaft that should not, in the opinion of the Commission, be overestimated.

In addition it is my opinion that the concept of the personal interest of the official may include not only factors of a private nature, even if they are closely linked to his work, but also factors related to his employment. It is certain that Théo Nebe's reassignment resulted in an increase in his responsibilities. A comparison of the description of his duties in the Milk Products Division (periodic report for 1977-79) with that of his new duties confirms the truth of that assertion. The Commission went on to state that Théo Nebe's new duties were in an area which the relevant authorities considered to be a priority area and he was now in charge of a team of some 20 persons. It therefore concludes that if his reassignment is not a guarantee of promotion it can certainly only help in that direction.

All the above considerations enable me to conclude that the relevant authorities within the Commission did take into account the applicant's personal interest to the extent required by the Court's case-law and in compliance with the duty to have regard to his welfare.

Fourth argument: unfavourable reactions outside the Commission

Finally, the interests of the service must be assessed not only from the point of view of internal administrative management, in the opinion of Théo Nebe, but also with regard to the relationship between the service and persons outside it. That is particularly important where the officials who are transferred are required to maintain close contacts with all those (from the national authorities to commercial operators) who are involved in the operation of the common market organizations, as is the case with officials of the Milk Products Division.

In fact the letter of 24 November 1981 from the German Minister for Agriculture to the Commissioner responsible for agricultural questions and an article which appeared in the German magazine Welt der Milch, Fachzeitschrift für die europäische Milch- und Nahrungsmittelindustrie [The World of Milk, a specialist publication of the European milk and foodstuffs industry] dated 26 February 1982 demonstrate that Théo Nebe's removal was the subject of criticism in the relevant circles.

Without entering into the specific problem of substance the Commission replies, in a convincing manner, that the argument based on the unfavourable reactions of a specialist publication or of a national politician may be taken into account only with the greatest caution. It states, quite rightly, that such articles in the press and, one might add, intervention by persons in public office, are frequently inspired by extraneous considerations. It emphasizes, furthermore, that Théo Nebe continues to maintain close contacts with relevant authorities of the Member States in his new duties.

Thus when it reassigned Théo Nebe compulsorily from the Milk Products Division to the division concerned with the clearance of accounts of the European Agricultural Guidance and Guarantee Fund within the Directorate-General for Agriculture, the Commission did not exceed the limits of its discretion in taking the view that such a step was in the interests of the service, even taking into account the fact that the person concerned was an expert.

Second submission

Since the contested decision was not adopted pursuant to the Commission's decision of 29 October 1980 concerning mobility, there is no need to consider Théo Nebe's second submission, based on an infringement of that decision.

Third submission

His third submission is based on the second sentence of the second paragraph of Article 25 of the Staff Regulations according to which any decision adversely affecting an official must state the grounds on which it is based.

Let us recall first the Court's case-law with regard to the scope of that duty in relation to transfers and reassignments with the official's post.

There is a twofold purpose to the duty to give reasons: on the one hand it allows the official concerned to determine whether the decision is defective, making it possible for its legality to be challenged and on the other hand it enable[s] it to be reviewed by the Court, and the Court has stated that the dual obligation is fulfilled if the circumstances in which the disputed measure was adopted and notified to those concerned and the staff memoranda and other communications accompanying it make it possible to recognize the essential factors which guided the administration in its decision.

Moreover, the Court has stated that:

the duty to give a statement of the grounds on which a measure concerning organization of the department is based must be related to the discretionary power which the appointing authority exercises in this connection and also to the marginal nature of the disadvantages which result for the official concerned from a reposting which does not affect his grade or his material situation.

Finally, the Court has held that:

I have been able to find only one judgment amongst the Court's recent decisions where it has annulled a decision to transfer an official on the ground that the reasons upon which it was based were mistaken.

In that case, which concerned the compulsory transfer of a medical practitioner from the Commission's medical branch to DG XII on the sole ground that she had not adapted herself to the new duties assigned to her in the medical branch which were particularly insubstantial, the Court considered that such a statement of reasons amounted to an unjustified slur on the applicant so that the decision to transfer her is in any event lacking in a correct statement of the grounds on which it is based, contrary to the requirements of the second sentence of the second paragraph of Article 25 of the Staff Regulations (paragraph 63).

In the present case it may be seen that the decision of 24 November 1981 refers solely to the interests of the service as the ground on which it was based. The statement of reasons therefore does not contain any specific, negative reason of the kind which formed the basis of the decision referred to above which was adopted in relation to Mrs Turner.

It is therefore necessary to refer to the steps preceding the contested decision: the conversation between Mr Villain and Mr Nebe on the previous 13 October and the memoranda exchanged between them.

In the opinion of Théo Nebe they show that the statement of reasons was contradictory and insufficient.

Fourth submission

Théo Nebe submits fourthly that the decision to reassign him is invalid for misuse of powers.

IV — It remains for me to give my opinion on the question of costs.

As I emphasized by way of a preliminary consideration, the course of this action, and probably its conclusion, would have been different had Théo Nebe been reassigned pursuant to the mobility procedure laid down by the Commission in its decision of 29 October 1980. In fact, as I am about to demonstrate, there was confusion with regard to the legal basis of that decision until an advanced stage of the contentious proceedings. In those circumstances it would appear to be quite understandable that the applicant should have believed for a long time that the decision to reassign him was adopted in direct application of the Commission's decision and not, as has been shown to be the case, pursuant to an internal procedure within the Directorate-General for Agriculture which, whilst it draws on the principles laid down in the mobility guidelines adopted by the Commission on 23 July 1980, need only satisfy the conditions laid down in the memorandum providing for it and those laid down by Article 7 (1) of the Staff Regulations.

In my opinion the resulting ambiguity should have been removed sooner. The Commission should have eliminated it as soon as the memorandum of 30 November 1981 from Théo Nebe to the Director-General for Personnel and Administration was received, which states: it [the manner in which Mr Villain had acted] was contrary to the Commission's décision concerning mobility which provides that those measures may only be adopted with the agreement of the official in question.

More serious still is the fact that the statement of defence of 27 September, which was lodged at the Court Registry on 30 September, is still equivocal. In its reply to the third submission relating to the statement of reasons, that is to say in reply to the applicant's argument that the decision fails to take into account the fact that he is an expert in the milk products sector, the Commission states that that factor may not be usefully relied upon unless that specialization was such that there was no other post in the Commission where he could pursue a career which was sufficiently interesting for him or which was sufficiently useful to the Commission. It was thereby reproducing the wording of point 3 (b) of its decision of 29 October 1980 concerning mobility. That was why the matter was still the subject of debate in the applicant's reply.

Finally the explicit rejection of Théo Nebe's complaint on 1 December 1982 contains the following passage: you may have been led to consider the decision adopted in relation to you as a measure adopted in the context of a mobility arrangement because it was adopted concurrently with a reorganization of the departments of DG VI pursuant to the general guidelines issued by the Commission on 29 October 1980 which does not affect, at the initial stage, officials in Grades A 5 and A 4. That passage is clearly incorrect since the first stage in implementing the decisions taken by virtue of the mobility policy of 29 October 1980 was not carried out, as I have already said, until 15 February 1982 and did not relate solely to DG VI but to all the departments of the Commission.

It is for that reason that I suggest that an order be made under the second subparagraph of Article 69 (3) of the Rules of Procedure which gives the Court the power to order one party, even a successful party, to pay the costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur.

Consequently my conclusions are:

1 Translated from the French.

2 Judgment of 24. 2. 1981 in Joined Cases 161 and 162/80 Carbognani and Zabetta [1981] ECR 543, paragraph 21 at p. 562.

3 Staff Courrier No 353.

4 Judgment of 21. 5. 1981 in Case 60/80 Kindermann v Commission [1981] ECR 1329, paragraph 17 at pp. 1341 and 1342; see also, for the specific case of the reorganization of the medical branch: judgment of 9. 7. 1981 in Joined Cases 59 and 129/80 Turner v Commission [1981] ECR 1883, paragraphs 44 and 45 at p. 1914.

5 Paragraph 17, ibid., inline.

6 Opinion of Advocate General Reischl in the Kindermann case, cited above, at p. 1351.

7 Opinion of Advocate General Reischl in the Kindermann case, cited above, at p. 1351.

8 Judgment of 9. 12. 1982 in Case 191/81 Plug, [1982] ECR 4229 at p. 4247, paragraph 21.

9 Judgment of 28. 5. 1980 in Joined Cases 33 and 75/79 Kuhner, [1980] ECR 1677, paragraph 22 at p. 1697.

10 Judgment of 29. 10. 1981 in Case 125/80 Aminį [1981] ECR 2539, paragraph 19 at p. 2555.

11 Judgment of 28.5. 1980, Kühner, cited above, paragraph 15 at p. 1695.

12 Judgment of 17. 12. 1981 in case 791/79 Demont v Commission [1981] ECR 3105, paragraph 12 at p. 3116.

13 Judgment in the Aming case, cited above, paragraph 12 at p. 2553.

14 Judgment in the Kuhner case, cited above, paragraph 15 at p. 1695.

15 Judgment of 9. 7. 1981 in Joined Cases 59 and 129/80 Turner v Commission, paragraphs 62 to 65, in particular paragraph 63, at pp. 1918 and 1919.

16 Memorandum of 29 October 1981.

17 Opinion of Advocate General Reischl of 10. 3.1983 in Case 85/82 Schlohv Council [1983] ECR.

18 Judgment of 25. 11. 1976 in Case 123/75 Küster v European Parliament [1976] ECR 1701, paragraph 15 at p. 1710; see also the judgment of 5. 51966 in Joined Cases 18 and 35/65 Gutmann v Commission of the EAEC [1966] ECR 103.

19 Opinion of Advocate General Reischl in the Schloh case, cited above.

20 Jugdment in the Küster case, 1976 Receuil 1701, paragraph 15 at p. 1710.

21 Judgment in the Gutmann case, cited above, at p. 117.

22 Observations submitted by the Commission on 12 April 1983 as a result of the Court's request to produce to it certain documents.

23 Reply of the Commission of 15. 4. 1983 to the Court.