Avis juridique important

Order of the Court (Second Chamber) of 17 October 1995. - Mariette Turner v Commission of the European Communities. - Official - Compulsory reassignment - Non-material damage - Claim for compensation - Appeal manifestly inadmissible and unfounded. - Case C-62/94 P. European Court reports 1995 Page I-03177

Parties Grounds Decision on costs Operative part

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1. Appeals ° Pleas in law ° Mere repetition of the pleas in law and arguments submitted to the Court of First Instance ° Inadmissible ° Dismissal of appeal

(Statute of the Court of Justice of the EC, Arts 49 and 51; Rules of Procedure, Art. 112(1)(c))

2. Officials ° Reassignment ° Administration' s duty to have regard to the welfare of officials ° Reconciliation with the interests of the service

In Case C-62/94 P,

Mariette Turner, formerly an official of the Commission of the European Communities, residing in Brussels, represented by Georges Vandersanden, of the Brussels Bar, with an address for service in Luxembourg at the office of Fiduciaire Myson, 1 Rue Glesener,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 16 December 1993 in Case T-80/92 Turner v Commission [1993] ECR II-1465, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by Gianluigi Valsesia, Principal Legal Adviser, acting as Agent, assisted by Denis Waelbroek, of the Brussels Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

THE COURT (Second Chamber),

composed of: G. Hirsch (Rapporteur), President of the Chamber, G.F. Mancini and F.A. Schockweiler, Judges,

Advocate General: G. Cosmas,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By application lodged at the Registry of the Court on 15 February 1994 Mrs Turner brought an appeal in accordance with Article 49 of the EC Statute and the corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice against the judgment of the Court of First Instance in Case T-80/92 Turner v Commission [1993] ECR II-1465, which dismissed her action for symbolic damages of one ecu in compensation for the non-material damage allegedly suffered by her owing to a compulsory reassignment and the conditions in which it occurred.

2 It appears from the judgment under appeal that the appellant, a doctor, was a Commission official. At the end of 1992 she reached the retirement age. From 1981 to February 1992 she was assigned to the Sickness and Accident Insurance Unit of Directorate B (rights and obligations) of the Directorate-General for Personnel and Administration (DG IX).

3 By registered letter of 7 February 1992, which she received at her home address on 10 February 1992 during a period of sick leave, the appellant was formally notified of the decision adopted on 31 January 1992 by the appointing authority to assign her to the Brussels Medical Service Unit in the interests of the service with effect from 1 February 1992.

4 On 6 March 1992 she lodged a complaint against that decision.

5 The complaint was rejected by Commission decision dated 31 July 1992, which was notified to the appellant by letter of 7 August 1992. However, the Commission postponed to 15 February 1992 the date on which the reassignment was to take effect.

6 On 28 September 1992 the appellant brought an action before the Court of First Instance which resulted in the judgment appealed against.

7 Before the Court of First Instance she raised five pleas based respectively on procedural error, infringement of Article 7 of the Staff Regulations of Officials of the European Communities, infringement of Article 25 of the Staff Regulations, misuse of powers and breach of the duty to have regard for the welfare of officials.

8 In support of her appeal the appellant pleads an infringement of Community law by the Court of First Instance in that it rejected the abovementioned pleas.

9 The Commission contends that the appeal is manifestly unfounded.

10 Under Article 119 of the Rules of Procedure the Court may at any time dismiss an appeal where it is clearly inadmissible or clearly unfounded.

11 In her first plea the appellant alleges that the Court of First Instance was wrong not to take cognizance of the procedural error made by the Commission in stipulating that the reassignment which was notified only by letter of 7 February 1992 was to take effect retroactively from 1 February 1992.

12 At paragraph 38 of its judgment the Court of First Instance held that the contested decision was not capable of having practical effect whilst the appellant was on sick leave. That assessment is corroborated by the finding at paragraph 22 of the judgment that, following the appellant' s complaint, the date on which that decision was to take effect was postponed to 15 February 1992. The first plea must therefore be rejected as manifestly unfounded.

13 In her second plea the appellant considers that the Court of First Instance misconstrued Article 7 of the Staff Regulations.

14 She bases this allegation on the following assertions:

° the Court of First Instance was wrong to accept that the appointing authority was entitled to rely on a valid, objective and general ground in order to reassign her in the interests of the service;

° the Court of First Instance was wrong to criticize her for failing to fulfil her duty of loyalty and cooperation;

° it was wrong to consider that she had not demonstrated the negative effects of her compulsory reassignment on the functioning of her previous department;

° it was not really urgent to transfer her post to the medical service, since that post remained vacant after the appellant' s departure.

15 Under Article 51 of the EC Statute of the Court of Justice, an appeal is limited to points of law and must be brought on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it or an infringement of Community law by the Court of First Instance. Article 112(1)(c) of the Rules of Procedure stipulates that the appeal must contain the pleas in law and legal arguments relied on.

18 As regards the first, third and fourth claims in support of this plea, suffice it to state that the appellant has failed to advance arguments establishing that the Court of First Instance misdirected itself in law in the assessment which it conducted. On those points the plea must therefore be dismissed as clearly inadmissible.

19 As regards the second claim in support of the same plea the Court of First Instance stated (paragraph 57, second part of the sentence) "... the Commission, at the time when it adopted the contested decision, was entitled to assume that the applicant would adopt conduct in line with her duty of cooperation and loyalty".

20 In that connection, it should be noted that the Court of First Instance merely recalled the fundamental duty of loyalty and cooperation in a sentence which was not essential for the dismissal of the action. Moreover in itself that statement by the Court of First Instance cannot constitute the actual finding of a failure by the appellant to fulfil that duty. On that point the second plea must consequently be rejected as clearly unfounded.

21 In support of her third plea, based on an infringement of Article 25 of the Staff Regulations, the appellant claims that the mere reference to "the interests of the service" and the wide discretionary power enjoyed by the Commission and to the memorandum of 14 February 1992 from Dr Hoffmann do not amount to a sufficient statement of reasons.

22 In that connection, the Court of First Instance correctly found that, as a result of the various memorandums sent by the administration in the context of the contested decision, the appellant was perfectly able to apprehend the scope of the decision. The third plea must therefore be rejected as manifestly unfounded.

23 In support of her fourth plea, based on a misuse of powers, the appellant alleges that the Court of First Instance in the judgment appealed against did not conduct an examination and discussion of the arguments which she had advanced in support of that plea but, after setting out those arguments, merely concluded ° without any statement of reasons or justification ° that they did not constitute "objective, pertinent and consistent evidence such as to establish to a satisfactory legal standard that the reassignment at issue had been decided upon for any purpose other than that of reinforcing the staff of the medical service" (paragraph 72 of the judgment appealed against).

24 By thus rejecting the arguments submitted to it, namely

"° the fact that in 1990 and 1991 there was a major divergence of views between the applicant and her Head of Division concerning a decision to reorganize the service to which she was at that time assigned;

° the fact that, according to the applicant, the reassignment decision was adopted on the initiative of the Director-General of DG IX and not at the request of the medical service;

° the fact that the arguments advanced by the applicant against the reassignment decision concerning her were not satisfactorily answered according to her; and

° the fact that, in spite of the opposition evinced by the applicant to her reassignment, the Commission refused to consider the possibility of an amicable settlement of the dispute" (paragraph 71 of the judgment appealed against),

the Court of First Instance carried out an assessment of mere allegations of fact unsupported by any evidence and no specific statement of reasons was required in order to reject them. Since that plea is based on a lack of reasoning and justification for such an assessment, it is clearly unfounded.

° whilst it is doubtless true that a reinforcement of the medical service might have become necessary, that situation had been known for a long time and if it was appropriate at that time to appoint a new doctor, a person other than the appellant ought to have been chosen;

° the tasks entrusted to the appellant remained incoherent, uncertain and without any real content;

° those in authority in the Commission, both in the administration and the medical service, having been unable to secure the reinforcement of the staff of that service despite a request dating back more than three years, had the idea of transferring the appellant together with her post in order that the post would remain available within the medical service following her departure,

they constitute fresh allegations of fact without any legal argument. As such they are manifestly inadmissible.

27 In that connection the Court of First Instance correctly found that the Commission had not exceeded the limits of its wide discretionary power in the assessment both of the requirements of the interests of the service and of those of the applicant. It cannot be maintained that a reassignment, even a few months before retirement, to a department in which the appellant had worked for 10 years (see paragraph 56 of the judgment of the Court of First Instance), was inconsistent with the administration' s duty to have regard for the welfare of officials or constituted a disguised disciplinary measure. The plea must therefore be rejected as clearly unfounded.

28 It follows from all the foregoing considerations that the pleas submitted by the appellant in support of her appeal are either clearly inadmissible or clearly unfounded. The appeal must therefore be dismissed in accordance with Article 119 of the Rules of Procedure.

Costs

29 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Article 70 of those Rules provides that in proceedings between the Communities and their servants the institutions are to bear their own costs. However, by virtue of Article 122 of those Rules, Article 70 does not apply to appeals brought by an official or other servant of an institution against that institution. Since Mrs Turner' s appeal has been unsuccessful she must be ordered to pay the costs of these proceedings.

On those grounds,

THE COURT (Second Chamber)

hereby orders:

1. The appeal is dismissed.

2. Mrs Turner is ordered to pay the costs of these proceedings.

Luxembourg, 17 October 1995.