Report for the Hearing delivered in Joined Cases C-116/88 and C-149/88

I — Facts and procedure

1. Background to the dispute

André Hecq has worked in the technical departments of the Commission since 1967. He was originally a member of the local staff and was established in 1975 and classified in Grade B 5 in the post of technical assistant. With effect from 1 August 1982, he was assigned to the Buildings and Equipment Management Department; since February 1984, he has occupied the post of a senior technical assistant in Grade BT 3. Following an incident which occurred at the end of 1984, Mr Hecq's relations with his colleagues and with his immediate superior, Mr Brusset, deteriorated. The situation gave rise to an exchange of memoranda of a somewhat personal nature.

After receiving, on 3 January 1986, two memoranda from Mr Brusset on the situation in the section, Mr Pratley, Director for Administration, informed Mr de Hoe, Head of the Buildings and Equipment Management Department, that the exchange of memoranda should cease immediately. Mr Pratley proposed that Mr Hecq should be removed from the buildings sector and given responsibility for heating and plumbing in certain new Commission buildings. Mr de Hoe adopted that proposal by decision of 23 January 1986, in which he also defined Mr Hecq's new duties. After hearing Mr de Hoe and Mr Hecq, Mr Pratley set out in a memorandum dated 5 March 1986 the buildings for which Mr Hecq was to be responsible. On 11 March 1986, Mr Hecq sent to Mr Pratley a memorandum requesting him to place a team of technicians at his disposal because it was impossible for him to carry out his work conscientiously and efficiently on his own. On 24 March 1986, Mr Pratley decided to take some buildings out of Mr Hecq's charge in order to make it easier for him to carry out his duties. On 2 April 1986, Mr Hecq submitted a complaint against the decisions of 3 and 23 January and 5 March 1986. On 30 October 1986, the Commission rejected Mr Hecq's complaint. On 26 January 1987, Mr Hecq lodged an application seeking the annulment of the abovementioned decisions and his own reinstatement in all his rights under the Staff Regulations as they stood before 1 February 1986. That action was registered under Number 19/87 at the Court Registry. By judgment of 23 March 1988 the Court (Fourth Chamber) dismissed the application.

A few days after lodging the application in Case 19/87, Mr Hecq learned of the existence of a memorandum of 27 January 1987 from Mr Brusset to a certain Mr Scocci, according to which one of the five buildings for which he was responsible, the building in Square Frère Orban, was taken out of his charge. On 18 February 1987, Mr Hecq submitted a complaint against that decision, which had never been notified to him. Since the Commission delayed in responding to that complaint (to which it replied on 29 September), on 22 September 1987 Mr Hecq brought an application for annulment before the Court of Justice (Case 280/87). That application was dismissed by judgment of 14 December 1988.

In the meantime, from 6 February to 4 May 1987, Mr Hecq was absent from work for health reasons. During that period, Mr Petersen, Head of the Buildings Department gave other officials responsibility for the buildings in Mr Hecq's charge. When Mr Hecq returned from sick leave, Mr Petersen assigned him a new task, namely the carrying out of an audit of the Overijse complex. In his memorandum of 22 April 1987, he stated that the audit should draw up a detailed inventory of the complex, to be broken down by building trade, and to suggest any remedial steps which could be taken to make the complex more functional. On 13 July 1987 Mr Hecq lodged a complaint against that decision. On 25 November 1987 the Commission rejected Mr Hecq's complaint. The decision notified on 22 April 1987 and the decision rejecting Mr Hecq's complaint are the subject-matter of Case C-116/88.

On 22 July 1987 Mr Hecq took part in a meeting with, among others, the Director-General of Personnel and Administration, Mr Hay, during which the need to reassign him was discussed. By a memorandum of 29 July 1987, Mr Hay proposed two new appointments to him and provided him with the relevant job descriptions. Mr Hecq had the choice between the Telecommunications and Distributed Hardware Department in Brussels and Division IXE-2 (Buildings and Equipment) in Luxembourg. However, Mr Hecq never expressed a choice between the two offers. On 31 July 1987 Mr Hay therefore notified him of his decision to assign him, with effect from 1 November 1987, to Directorate IXE of the Commission in Luxembourg with a post in Grade B 3/2. On 28 October 1987 Mr Hecq lodged a complaint against that decision, to which the Commission did not reply until 27 May 1988. The application in Case C-149/88 is directed against the decision of 31 July 1987 and the implied rejection of his complaint.

2. Procedure

Mr Hecq's application in Case C-116/88 was received at the Court Registry on 14 April 1988. The application in Case C-149/88 was lodged on 25 May 1988.

In Case C-116/88 the Commission did not lodge the rejoinder within the time allowed. It claimed that the omission was accidental and requested an extension of five weeks. By a decision of 9 September 1988 the President of the Fourth Chamber refused the request, taking the view that the circumstances relied on by the Commission were not such as to establish the existence of a case such as that provided for in Article 42 of the Rules of Procedure.

In Case C-116/88, by an application lodged at the Court Registry on 20 December 1988, Mr Hecq requested pursuant to Article 91 of the Rules of Procedure that the Commission should lodge two documents, either voluntarily or by order of the Court. Moreover, he requested that a new time-limit of 30 days should be granted to each of the parties to prepare their written submissions concerning the contents of the two aforementioned documents. On 24 January 1989 the Commission produced the documents in question. By a decision of 13 March 1989 the Court (Fourth Chamber) reserved its decision on the applicant's application for the final judgment without granting a new time-limit for the exchange of written pleadings.

By an order of 17 April 1989 the Court (Fourth Chamber) decided to join the two cases for the purposes of the oral procedure and the judgment.

By an application lodged at the Court Registry on 25 May 1989, Mr Hecq requested pursuant to Article 91 of the Rules of Procedure that the Commission should be ordered to lodge document BS. A(89)D/260. The Commission voluntarily lodged the document, but at the same time requested that it should be excluded from the proceedings.

By an order of 28 June 1989 the Court excluded the document from the proceedings.

Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court (Fourth Chamber) decided to open the oral procedure without any preparatory inquiry. However, it asked the parties to answer a question in writing.

II — Conclusions of the parties

In Case C-116/88 the applicant, Mr Hecq, claims that the Court should:

The defendant, the Commission, concludes that the Court should:

In Case C-149/88 the applicant, Mr Hecq, claims that the Court should:

The defendant, the Commission, concludes that the Court should:

III — Submissions and arguments of the parties

1. The admissibility of the application in Case C-116/88

In its defence, the Commission claims that the application is now devoid of purpose since the contested decision ceased to produce effects on 1 November 1987, the date on which the applicant was reassigned to Luxembourg. Consequently, the application is inadmissible because the applicant has no current interest. In the alternative, the Commission points out that a decision, such as the one at issue, which is intended to improve the organization of the Commission without affecting the rights of the official cannot adversely affect the official. For those reasons, the application must be declared inadmissible.

The applicant claims that in so far as the decision has had injurious legal effects, he has a current and definite interest in obtaining a declaration from the Court that it is unlawful. There is no doubt that the decision adversely affects him.

2. Infringement of Articles 5(4) and 7(1) of the Staff Regulations of Officiais

In both cases the applicant claims that the Commission infringed the guarantee provided for under the Staff Regulations that the appointing authority acts solely in the interest of the service when it assigns an official to a post in his category which corresponds to his grade. The auditing of the Overijse complex did not, however, correspond to the basic post of assistant in Grade B 3/B 2; firstly, the part of the audit relating to plumbing and heating involved duties which were appreciably inferior to those which may be required of an assistant in Grade B 3/B 2; secondly, as regards the other building trades, the applicant had no competence, experience or special training so that the duties in question went clearly beyond those which could be required of an assistant in Career Bracket B 3/B 2.

The applicant's new duties in Luxembourg are appreciably inferior to those corresponding to his grade and post; instead of being responsible for a section of an administrative unit, as he was in Brussels, he now works himself under the authority of a person responsible for a section of such a unit; his duties are very limited because all the teams were already complete before his arrival. From that fact it is evident that the applicant was not reassigned in the interest of the service.

With regard to the Overijse complex, the Commission points out that the institutions have a wide discretionary power to organize their departments. The only condition is that when assigning staff they should act in the interest of the service and should assign officials to posts which correspond to their grades. However, in a Commission decision detailing duties and powers, the duties of a technical assistant in Grade B 2 or B 3 are described as follows:

The Commission contends that the nature, importance, and scope of the applicant's duties in the Overijse complex fit that description. The Commission also points out that the decision must be placed in its context. Firstly, the applicant's ineffectiveness and his long periods of sick leave made it difficult to supervise and coordinate the heating and plumbing work in the buildings in his charge. Secondly, it was necessary to make a start on the renovation of the Overijse complex. In view of the deteriorating working atmosphere surrounding Mr Hecq the decision to reassign him to Overijse was entirely in the interest of the service.

With regard to the applicant's reassignment to Luxembourg, the Commission points out first of all that the applicant never complied with the order to carry out an audit of the Overijse complex. The working atmosphere remained detrimental both to the proper functioning of the service and to the interests of all those concerned. It was necessary to reestablish for the applicant, in a different environment, working conditions which would enable his career to follow a normal course; it was that consideration which led the Director-General for Personnel to reassign the applicant once more. As the applicant did not make a choice between the two posts offered, the Director-General assigned him to Luxembourg where the duties involved were better suited to the applicant's qualifications and experience. More specifically, those duties consist in taking care of the technical equipment in the Cube Building which houses the Euratom Safeguards Directorate. That directorate has numerous laboratories and uses specialized equipment. The overseeing of that equipment is a demanding task with considerable responsibility. The applicant is also responsible for the functioning and maintenance of the technical equipment in the Centre polyvalent de l'enfance and he has the task of helping to prepare a draft technical specification for an invitation to tender for the renewal of contracts for the maintenance of the lifting equipment of the Jean Monnet Building. With regard to the last-mentioned project, the applicant has been of considerable assistance. However, his many absences mean that it is not possible to assess how far the duties he was given to perform correspond to his abilities. According to the Commission, it follows from all the foregoing considerations that the applicant was reassigned in the interest of the service and in compliance with the provisions of Articles 5 and 7 of the Staff Regulations.

With regard to the posts he was offered, the applicant claims that the choice was not a real one and that, consequently, his reassignment to Luxembourg was compulsory.

3. Infringement of Article 25 of the Staff Regulations of Officials

In Case C-116/88, the applicant claims that the decision contained in the letter of 22 April 1987 did not contain a statement of reasons and the express rejection of his complaint is based on erroneous grounds. The applicant contends that he is adversely affected by the decision to reassign him to Overijse and that consequently the decision should state the grounds upon which it is based pursuant to Article 25 of the Staff Regulations.

The Commission replies that the Court has consistently held that an internal administrative measure such as the one at issue cannot affect the official's position under the Staff Regulations or infringe the principle that the post to which he is assigned should correspond to his grade and is not therefore subject to the requirement that it should contain a statement of reasons. Furthermore, even if the contested decision were liable to affect the applicant's interests, he was aware of the context within which the decision was made and, consequently, he understood its scope. Under those circumstances, a more explicit statement of grounds is not required.

The Commission points out in that regard that the applicant must be aware that his poor performance, exacerbated by his long periods of sick leave, forced the administration to carry out a reorganization. Those internal reasons were due, moreover, to the rejection of the applicant's complaint. Finally, the Commission refers to the deterioration in the working atmosphere surrounding the applicant.

In his reply, the applicant claims that a long period of sick leave cannot constitute a legitimate ground for moving an official on his return to work.

With regard to the deterioration in the working atmosphere, the applicant maintains that in Case 19/87 the Court took the view that it was not he who was responsible for the deterioration in the working atmosphere in the service in question. A ground based on the deterioration in the working atmosphere is therefore entirely erroneous.

The applicant then disputes the claim that his performance was insufficient. In his opinion, there is no valid evidence to support that submission; on the contrary, no indication of poor performance was ever given to him.

Finally, the applicant claims that the decision could not have been adopted on grounds based on the interest of the service. It is clear, in particular from two documents lodged by the Commission on 24 January 1989, that the true grounds are unlawful; the decision is in fact disguised disciplinary action.

The Commission observes that it has difficulty in understanding how the two documents are evidence of the unlawful real grounds. The first memorandum in question merely confirms the deterioration in the working atmosphere within Mr Petersen's Buildings Department. The second concerns certain steps taken or suggested by Mr Petersen which fall within his competence.

In Case C-149/88 the same arguments are put forward concerning the statements of reasons of the contested measures.

The applicant submits that the grounds should have been stated for the decision to reassign him to Luxembourg since it was a measure which adversely affected him.

The Commission replies that the decision does not affect the applicant's position under the Staff Regulations or infringe the principle that the post to which an official is assigned should correspond to his grade. The insignificant disadvantage which may have been suffered does not mean that the decision ought to have contained a statement of reasons. In addition, since the applicant attended meetings with the Director-General for Personnel and Administration, Mr Hay, before the decision was adopted, he is perfectly aware of the factors which guided the administration in adopting that decision. At the meeting of 22 July 1987 Mr Hay explained to the applicant that within the framework of the general policy of staff mobility it was necessary to reassign him both in the interest of the harmonious functioning of the service in question and in his own interest.

In his reply the applicant claims that the decision adversely affects him not only because it infringes the principle that an official should be assigned to a post which corresponds to his grade but also because it means that his family is split between Luxembourg and Brussels. Moreover, he can no longer pursue his union activities.

The applicant then points out that the harmonious functioning of the service in question cannot be used as an argument in favour of his reassignment; there is no evidence of new disputes or problems within his department. Furthermore, the applicant is not responsible for the past deterioration in the working atmosphere.

In reply, the Commission points out that the mere fact that the official's personal or family situation is affected cannot transform his reassignment into a measure which adversely affects him. Moreover, the applicant is free to pursue his union activities in his new place of employment. The Commission adds that the discord which existed within the Buildings Department before November 1987 disappeared once the applicant had been transferred.

4. Infringement of the general principle of proper administration and of the duty to have regard to the interests of the official

In both cases, the applicant claims that the Commission adopted the decisions without taking his interests into account. In Case C-116/88 he adds that he was not allowed to put forward his point of view before the decision was adopted.

In the context of this submission the applicant discusses several documents relating to the events which took place between October 1984 and October 1986. He claims that those documents show that Mr Brusset is responsible for the deterioration in the working atmosphere within the Buildings Department of which the applicant was a victim. As a result of a number of malpractices, disciplinary proceedings were initiated on 23 October 1986 against the applicant but not against other persons involved in the malpractices such as Mr Brusset. The applicant claims that in those circumstances the Commission ought not to have allowed the situation to deteriorate or to wrongly name him as a person responsible; it ought to have immediately looked into the question of responsibility within the service. It follows from the foregoing that the Commission never took account of all the determining factors and that it manifestly failed in its duty to have regard to his interests.

The Commission claims that it always fully assessed all the determining factors, including those relating to the applicant's personal situation, before it assigned him to his new duties.

As for the factors which, according to the applicant, caused the deterioration in the working atmosphere, and the accusations made in particular against Mr Brusset, the Commission points out that that issue is only relevant in so far as it shows that the accusations of irregularities made against certain officials had a detrimental effect on working conditions. Once the applicant had left to go to Luxembourg, the atmosphere improved. With regard to Mr Brusset, who, moreover, was transferred as part of the staff mobility policy, an investigation showed that the accusations made against him by the applicant were groundless.

Finally, in reply to the applicant's claim in Case C-116/88 that he was not given an opportunity to put his point of view, the Commission observes that the administration is not under any duty to seek the individual views of officials on reorganization measures which may affect their position.

5. Disguised disciplinary action

In Case C-149/88 the applicant claims that his reassignment to Luxembourg must be regarded as disguised disciplinary action even though it was concluded, at the end of the disciplinary proceedings brought against him, that the accusations were groundless. The punative nature of his reassignment is evident in particular from a confidential memorandum of February 1987 from Mr Petersen and from the fact that the decision to close the disciplinary proceedings coincided with the decision to reassign the applicant to Luxembourg.

The Commission contends that the applicant has adduced no evidence to suggest that there is any link whatsoever between the disciplinary proceedings and his reassignment. Moreover, the applicant's duties have not been curtailed. His reassignment is in no way a disguised downgrading.

6. Infringement of the right of association and of union rights

The applicant, who was elected to the Executive Committee of the Union syndicale in May 1987, claims that owing to his reassignment to Luxembourg he is no longer able to exercise his union mandate properly. Thus the Commission has infringed Article 24a of the Staff Regulations and Article 13 of the Agreement on Relations between the Commission of the European Communities and the Trade Union and Staff Associations of 20 September 1974.

The Commission has difficulty in understanding how a reassignment to Luxembourg can infringe the applicant's right of association. Moreover, it claims that the abovementioned agreement does not give rise to any direct right. Finally, it points out that the Union syndicale never contacted the competent authorities in order to call into doubt the lawfulness of the reassignment to Luxembourg. On the contrary, in a letter of 30 July 1987 the President and the Secretary-General of the Union syndicale stated that they were in favour of the reassignment.

7. Costs

In its defence in Case C-116/88 the Commission claims that the application seeking the annulment of a decision which since 1 November 1987 has ceased to produce effect is unreasonable because any annulment cannot benefit the applicant. It therefore asks the Court to order the applicant to pay all the costs pursuant to Article 69(3) of the Rules of Procedure.

The applicant claims that that request is in no way well founded since his application is neither dilatory nor unreasonable and vexatious.

1 Language of the case: French.