Avis juridique important

Judgment of the Court (First Chamber) of 21 May 1981. - Jacobus Kindermann v Commission of the European Communities. - Official - Re-assignment. - Case 60/80. European Court reports 1981 Page 01329

Summary Parties Subject of the case Grounds Decision on costs Operative part

1 . OFFICIALS - APPLICATION TO THE COURT - MEASURE ADVERSELY AFFECTING - CHANGE OF ASSIGNMENT ON REORGANIZATION OF DEPARTMENTS

( STAFF REGULATIONS , ART . 91 )

2 . OFFICIALS - TRANSFER - REASSIGNMENT - CRITERIA FOR DISTINGUISHING - CONDITIONS COMMON THERETO

( STAFF REGULATIONS , ARTS 4 , 7 ( 1 ) AND 29 )

3 . OFFICIALS - ORGANIZATION OF DEPARTMENS - DISCRETION OF ADMINISTRATION

1 . EVEN IF A DECISION DOES NOT AFFECT THE MATERIAL INTEREST OR THE RANK OF AN OFFICIAL IT MAY , HAVING REGARD TO THE NATURE OF THE DUTIES IN QUESTION AND THE CIRCUMSTANCES , ADVERSELY AFFECT THE NON-MATERIAL INTERESTS AND FUTURE PROSPECTS OF THE OFFICER CONCERNED .

2 . UNDER THE SYSTEM OF THE STAFF REGULATIONS THERE IS A TRANSFER PROPERLY SO-CALLED ONLY WHERE AN OFFICIAL IS TRANSFERRED TO FILL A VACANT POST . IT FOLLOWS THAT EVERY TRANSFER PROPERLY SO-CALLED IS SUBJECT TO THE FORMALITIES LAID DOWN IN ARTICLES 4 AND 29 OF THE STAFF REGULATIONS . ON THE OTHER HAND THOSE FORMALITIES DO NOT APPLY IN THE CASE OF REASSIGNMENT OF AN OFFICIAL , AS THIS DOES NOT GIVE RISE TO A VACANCY .

DECISIONS TO REASSIGN ARE SUBJECT , JUST AS TRANSFERS , AS REGARDS THE PROTECTION OF THE RIGHTS AND LEGITIMATE INTERESTS OF THE OFFICIALS CONCERNED , TO THE RULES OF ARTICLE 7 ( 1 ) OF THE STAFF REGULATIONS INASMUCH AS IN PARTICULAR THE REASSIGNMENT OF OFFICIALS MAY TAKE PLACE ONLY IN THE INTERESTS OF THE SERVICE AND IN CONFORMITY WITH THE PRINCIPLE OF EQUIVALENCE OF POSTS .

3 . THE INSTITUTIONS OF THE COMMUNITY 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 CASE 60/80

JACOBUS KINDERMANN , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , OF 60 AVENUE DE L ' EMERAUDE , 1040 BRUSSELS , ASSISTED AND REPRESENTED BY GEORGES VANDERSANDEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICO EDON , 2 RUE GOETHE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JEAN-PIERRE DELAHOUSSE , ACTING AS AGENT , ASSISTED BY DANIEL JACOB OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 4 OCTOBER 1979 TO TRANSFER THE APPLICANT FROM DIRECTORATE-GENERAL IX-D-3 TO DIRECTORATE-GENERAL IX-D-8 AS FROM 2 JANUARY 1980 ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 21 FEBRUARY 1980 MR KINDERMANN , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITES , BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 4 OCTOBER 1979 , SIGNED BY MR TUGENDHAT , THE MEMBER OF THE COMMISSION RESPONSIBLE FOR MATTERS RELATING TO PERSONNEL AND ADMINISTRATION , REASSIGNING HIM FROM DIVISION IX-D-3 , THE TRANSLATION , GENERAL MATTERS DIVISION TO DIVISION IX-D-8 , THE DUTCH LANGUAGE TRANSLATION DIVISION , AS FROM 1 JANUARY 1980 .

2 THE APPLICANT ENTERED THE SERVICE OF THE COMMISSION ON 15 JUNE 1959 AS AN AUXILIARY TRANSLATOR , WAS ESTABLISHED WITH EFFECT FROM 1 JANUARY 1962 AND ASSIGNED TO A POST IN THE DUTCH TRANSLATION SECTION OF THE NEW TRANSLATION , REPRODUCTION AND PRINTING OF DOCUMENTS DIVISION OF THE INTERNAL MATTERS DIRECTORATE OF THE DIRECTORATE-GENERAL FOR GENERAL ADMINISTRATION . DURING HIS CAREER MR KINDERMANN WAS PLACED AT THE DISPOSAL OF VARIOUS DEPARTMENTS AND IN PARTICULAR THE DIRECTORATE-GENERAL FOR COMPETITION . SINCE 1 FEBRUARY 1970 HE HAS PERFORMED HIS DUTIES IN THE TRANSLATION DEPARTMENT OF THE ADMINISTRATIVE COMMISSION FOR SOCIAL SECURITY FOR MIGRANT WORKERS ( HEREINAFTER REFERRED TO AS ' ' THE ADMINISTRATIVE COMMISSION ' ' ).

3 ON 1 JANUARY 1973 THE TRANSLATION DEPARTMENTS OF THE COMMISSION WERE REORGANIZED . THE VARIOUS TRANSLATION SECTIONS COMPRISING THE FORMER TRANSLATION , GENERAL MATTERS , DIVISION IX-D-3 , WHICH ITSELF WAS ELEVATED TO THE RANK OF A DIRECTORATE ( IX-D TRANSLATION , DOCUMENTATION , REPRODUCTION AND LIBRARY ) WERE TRANSFORMED INTO SIX DIVISIONS ( IX-D-4 TO 9 ), AND THE TRANSLATION SECTION TO WHICH MR KINDERMANN BELONGED THUS BECAME THE DUTCH LANGUAGE TRANSLATION DIVISION IX-D-8 .

4 ON 22 AUGUST 1979 THE TRANSLATORS ASSIGNED TO THE ADMINISTRATIVE COMMISSION WERE SUMMONED TO A MEETING BY MR CIANCIO , THE DIRECTOR OF DIRECTORATE IX-D , WHO INFORMED THEM OF THE DECISION OF THE COMMISSION TO SEND THOSE ' ' SECONDED ' ' TRANSLATORS , WHO HAD WORKED FOR TEN YEARS IN A PARTICULAR DEPARTMENT , BACK TO THE CENTRAL LANGUAGE DIVISIONS . HE TOLD THE MEETING THAT THE PRINCIPLE WHICH HE HAD EXPLAINED WOULD APPLY FIRST , INTER ALIA , TO MR KINDERMANN WHO WAS ON LEAVE ON THE DAY OF THAT MEETING AND THEREFORE DID NOT TAKE PART IN IT , AND THAT IN DUE COURSE A PERSONAL LETTER WOULD BE SENT TO EACH TRANSLATOR IN THE ADMINISTRATIVE COMMISSION .

5 THE LETTER SENT TO MR KINDERMANN AND DATED 22 AUGUST 1979 REACHED HIM ON 4 SEPTEMBER 1979 . IT STRESSED THE VALUE WHICH THE COMMISSION ATTACHED TO THE ' ' POSSIBILITY FOR ITS STAFF , SO FAR AS IS AT ALL POSSIBLE AND HAVING REGARD TO THE INTERESTS OF THE SERVICE , TO BE ASSIGNED , AFTER SPENDING A CONSIDERABLE TIME PERFORMING THE SAME DUTIES IN THE SAME DEPARTMENTS , TO OTHER DUTIES CORRESPONDING TO THEIR STATUS UNDER THE STAFF REGULATIONS AND THUS TO ENRICH THEIR EXPERIENCE . ' ' THE LETTER CONTINUED IN THE FOLLOWING WORDS : ' ' I SHOULD THEREFORE BE GRATEFUL IF AFTER CONTACTING YOUR HEAD OF DIVISION , MR PIGNOT , YOU WOULD PRESENT YOURSELF ON 2 JANUARY 1980 TO MR DALLINGA , THE HEAD OF THE DUTCH TRANSLATION DIVISION , WHO WILL INFORM YOU OF YOUR NEW DUTIES . ' '

6 ON 17 SEPTEMBER 1979 MR KINDERMANN SENT TO MR CIANCIO A LETTER IN WHICH HE CHALLENGED THE DECISION OF 22 AUGUST 1979 . THE FOLLOWING 3 OCTOBER HE LODGED A COMPLAINT AGAINST THAT DECISION . THE NEXT DAY HE RECEIVED THE DECISION SIGNED BY MR TUGENDHAT AGAINST WHICH HE LODGED A COMPLAINT ON 12 OCTOBER 1979 WHICH REMAINED UNANSWERED DURING THE PRESCRIBED PERIOD OF FOUR MONTHS .

ADMISSIBILITY

7 THE COMMISSION CHALLENGES THE ADMISSIBILITY OF THE ACTION ON THE GROUND THAT THE DECISION OF 4 OCTOBER 1979 DID NOT , AS A MATTER OF ORGANIZATION , CHANGE THE APPLICANT ' S POSTING OR A FORTIORI HIS POSITION UNDER THE STAFF REGULATIONS . IN PRACTICE , IT MEANT NOTHING MORE THAN THAT THE APPLICANT CEASED TO BE PLACED AT THE DISPOSAL OF THE ADMINISTRATIVE COMMISSION AND WAS REASSIGNED ALONG WITH HIS POST FROM DIVISION IX-D-3 TO DIVISION IX-D-8 . FURTHER , THE NATURE AND LEVEL OF THE TRANSLATION DUTIES CARRIED OUT BY MR KINDERMANN WERE NOT CHANGED . IT WAS THEREFORE ONLY A SIMPLE MEASURE OF INTERNAL ORGANIZATION OF THE DEPARTMENT NOT CAPABLE OF HAVING ADVERSE EFFECT AND THUS NOT THE KIND OF MEASURE CAPABLE OF BEING ANNULLED PURSUANT TO ARTICLE 91 OF THE STAFF REGULATIONS .

9 THE ACTION MUST THEREFORE BE HELD TO BE ADMISSIBLE .

SUBSTANCE

10 DURING THE ORAL PROCEDURE THE APPLICANT PUT FORWARD ULTIMATELY ONLY TWO SUBMISSIONS AGAINST THE CONTESTED DECISION , THE FIRST ALLEGING INFRINGEMENT OF ARTICLE 7 ( 1 ) OF THE STAFF REGULATIONS IN SO FAR AS ON THE ONE HAND THE PROCEDURE FOR WHICH THAT PROVISION PROVIDES IN THE CASE OF TRANSFER WAS NOT COMPLIED WITH AND ON THE OTHER THAT THE DECISION IN QUESTION WAS NOT IN THE INTERESTS OF THE SERVICE . THE SECOND SUBMISSION ALLEGES THAT THERE HAS BEEN A MISUSE OF POWERS .

11 IT IS APPARENT FROM A CONSIDERATION OF THOSE SUBMISSIONS AND THE ARGUMENTS OF THE DEFENCE THAT THE PARTIES DISAGREE AS TO THE DESCRIPTION OF THE MEASURE IN QUESTION . THE APPLICANT TAKES THE VIEW THAT HE WAS TRANSFERRED WITHIN THE MEANING OF ARTICLE 7 OF THE STAFF REGULATIONS WHEREAS ACCORDING TO THE COMMISSION WHAT WAS DONE WAS , IN FORMAL TERMS , TO REASSIGN THE APPLICANT ALONG WITH HIS POST AND , IN PRACTICAL TERMS , TO TERMINATE A MEASURE PLACING HIM AT THE DISPOSAL OF THE ADMINISTRATIVE COMMISSION .

12 IT IS AS WELL TO OBSERVE FROM THE OUTSET THAT UNDER THE SYSTEM OF THE STAFF REGULATIONS THERE IS A TRANSFER PROPERLY SO CALLED ONLY WHERE AN OFFICIAL IS TRANSFERRED TO FILL A VACANT POST . IT FOLLOWS THAT EVERY TRANSFER PROPERLY SO CALLED IS SUBJECT TO THE FORMALITIES LAID DOWN IN ARTICLES 4 AND 29 OF THE STAFF REGULATIONS . ON THE OTHER HAND THOSE FORMALITIES DO NOT APPLY IN THE CASE OF REASSIGNMENT OF AN OFFICIAL , AS THIS DOES NOT GIVE RISE TO A VACANCY .

15 HAVING REGARD TO THE FOREGOING IT ONLY REMAINS , SO FAR AS THE FIRST SUBMISSION IS CONCERNED , TO CONSIDER THE COMPLAINT BASED ON DISREGARD OF THE INTERESTS OF THE SERVICE .

16 THE APPLICANT MAINTAINS THAT THE DECISION IN QUESTION WAS TAKEN IN DISREGARD OF THE INTERESTS OF THE SERVICE . SINCE THIS DECISION HAD NOTHING TO DO WITH ANY REORGANIZATION OF THE SERVICE THERE IS NOTHING TO PROVE THAT THE POST TRANSFERRED IS MORE USEFUL TO THE INTERESTS OF THE SERVICE IN THE NEW DIVISION TO WHICH THE APPLICANT HAS BEEN ASSIGNED ( IN THE PRESENT CASE IX-D-8 ) THAN IN HIS ORIGINAL DIVISION ( NAMELY IX-D-3 ).

18 FOR THE SAME REASON THE ALTERNATIVE ARGUMENTS PUT FORWARD BY THE APPLICANT IN RELATION TO THE NEGATIVE EFFECTS OF HIS DEPARTURE ON THE FUNCTION OF THE TRANSLATION DEPARTMENT OF THE ADMINISTRATIVE COMMISSION AND THE FACT THAT HE WAS NOT AWARE OF THE NEED TO INCREASE THE TRANSLATION ' S STAFF WORKING FOR DIVISION IX-D-8 MUST ALSO BE REJECTED .

19 THE FIRST SUBMISSION MUST THEREFORE BE REJECTED .

20 THE SECOND SUBMISSION MUST BE REJECTED ON THE GROUND THAT THE COMMISSION ' S DECISION TO REASSIGN THE APPLICANT HAS BEEN SHOWN ABOVE TO BE IN CONFORMITY WITH THE INTERESTS OF THE SERVICE SO THAT IT CANNOT GIVE RISE TO A MISUSE OF POWERS .

IT IS APPARENT FROM THE FILE THAT THE APPLICANT WAS INFORMED OF THE DECISION OF 22 AUGUST 1979 ALTERING HIS ASSIGNMENT BY HIS COLLEAGUES IN THE ADMINISTRATIVE COMMISSION WHO HAD THEMSELVES LEARNED OF IT AT THE MEETING FROM WHICH HE WAS ABSENT . IN VIEW OF THE FACT THAT THE COMMISSION MIGHT HAVE TAKEN CARE TO INFORM THE APPLICANT FIRST IT IS PROPER TO ORDER THE COMMISSION TO BEAR ONE HALF OF THE APPLICANT ' S COSTS .

FURTHERMORE , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSED THE APPLICATION ;

2 . ORDERS THE COMMISSION TO BEAR ITS OWN COSTS AND ONE HALF OF THE APPLICANT ' S COSTS .