JUDGMENT OF 16. 6. 1971 — CASE 61/70 VISTOSI v COMMISSION

In Case 61/70

THE COURT (First Chamber) composed of: A. M. Donner, President of Chamber, R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

The facts and the procedure may be summarized as follows:

The applicant, an official in Grade A 6, was on 25 October 1966 appointed Italian language editor in the Publications Division of the Joint Press and Information Department which subsequendy became the Directorate for Information and Media of the Directorate-General for Press and Information.

This posting was not preceded by a vacancy notice containing a description of the post involved. From what appears in the periodical report on the applicant, this employment consists of the editing in Italian of periodic and non-periodic-publications. In this field the applicant devoted himself in the main to the editing of the monthly magazine ‘Comunità Europee’ in which for a time he held the position of chief editor.

According to the applicant he was relieved of these duties consequent upon the appointment in May 1970 to the division to which he belongs of another employee, Mr Angelino, an official in Grade A 4, who previously worked in the Spokesman's Group.

After he had in July 1969 been seconded to the office of Commissioner Colonna di Paliano, Mr Angelino was at the expiration of Mr Colonna's term of office by decision of 6 May 1970 which came into effect on 1 July 1970 not restored to the Publications Division of his former post but was assigned to the Directorate-General for Press and Information, with posting to Rome, and in Grade A 4. The temporary servant who replaced him at the Spokesman's Group was at the same time established in his post.

In order to bring about these two postings, the Commission in the course of its meeting on 6 May 1970 transferred Mr Angelino's post from the Spokesman's Group to the Directorate-General for Press and Information, and transferred a vacant post from another Directorate-General to the Spokesman's Group. (Schedule III to the statement of defence).

According to tne applicant these operations had the effect of relieving him of his duties, since the tasks carried out by him were entrusted to Mr Angelino and since he himself had not received any new posting. In these circumstances on 13 July 1970 he made a complaint through official channels against the administrative situation in which since 1 July 1970 he had found himself, asking for ‘the annulment of the illegal procedures’ of which he complained.

After this complaint had remained unanswered for more than two months, the applicant brought an action before the Court of Justice on 4 November 1970.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry.

The parties presented oral argument at the hearing on 12 May 1971.

The Advocate-General delivered his opinion on 26 May 1971.

II — Conclusions of the parties

The applicant claims that the Court should:

‘(1) Declare null and void the Commission's implied refusal of his administrative complaint of 13 July 1970; (2) Declare null and void the decision by which the Commission appointed Mr Luciano Angelino Italian language editor of the Publication Division of the Directorate for Information and Media of the Directorate-General for Press and Information; (3) Declare null and void the decision by which the applicant was relieved of his duties; (4) Order the opposite party to bear the costs. The defendant contends that the Court should: declare the request for annulment of the contested decisions inadmissible or, alternatively, unfounded; accordingly find the action inadmissible and unfounded in its entirety; order the applicant to pay the costs.’

The applicant claims in addition in his reply that the Court should:

‘In the alternative, declare that Mr Jules Gerard Libois, Head of the Publications Division, ought to be heard as a witness on the following points: (1) What since 1 July 1970 have been the applicant's conditions of work and what are the tasks entrusted to him? (2) Is it not a fact that to the extent of 95 % the applicant's tasks in his capacity as Italian language editor as indeed those of the other editors consists of editing the Commission's monthly publication (in the present case Comunita Europee)?’

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

A —) In the application the applicant argues that the decision transferring Mr Angelino to the Publications Division of the Directorate-General for Press and Information with posting to Rome adversely affects him in that it deprives him of the opportunity of performing tasks which he had until then performed without other duties being allocated to him and that it must be annulled for the following reasons:

1) No vacancy of employment had been advertised;

2) Since the contested decision adversely affects the applicant it ought to have been notified to him; this had not been done;

3) This decision is defective by reason of a misuse of powers. It is not justified by any interest of the service since there has been no enlargement of the sphere of activity of the publications division or of the Rome office whilst on the other hand no decision has been taken to assign other duties to the applicant. The real purpose of the contested decision was to reward Mr Angelino when his duties as Deputy Chief Executive Officer of a Member of the Commission had come to an end.

4) Finally the contested decision amounts in the case of the applicant to a disciplinary action in disguise.

B —) In the statement of defence the Commission replies in the first place to the submissions relating to the alleged deprivation of employment and subsequently to those dealing with Mr Angehno's transfer.

1) As regards the first head of claim in the application, it argues in the first place that it is pointless since the applicant had in no way been relieved of his duties. If consequent upon the strengthening of the editorial team to which he belongs, the editing of the magazine ‘Comunità Europee’ was entrusted to Mr Angelino, this fact nevertheless did not have the effect of relieving him of his duties. He still remains an administrator in Grade A 6 in the Publications Division and edits the Italian language publications published by that department. If only for that reason the application ought to be dismissed as inadmissible or at any rate unfounded. Secondly, the defendant alleges that even if the applicant could prove that there had been an important change, both from the point of view of quantity and quality, in the tasks which he had previously performed, this change did not for that reason involve the illegality of the contested decision. Besides, the applicant must prove—something which he has not done—that this measure adversely affects him and that it cannot be justified for considerations based on the interest of the service.

2) As regards the decision relating to the transfer of Mr Angelino—with which the application is secondly concerned—the defendant alleges in the first place that since the applicant was not relieved of his duties the decision is not capable of adversely affecting him and that under this head too the application is inadmissible. The application ought moreover to be dismissed as unfounded for the following reasons:

a) The criticized decision stemmed from the obligation upon the Commission to reassign Mr Angelino to a post in his grade after the termination of his duties as Deputy Chief Executive Officer. To carry out this obligation can in no way be interpreted as a reward; this is moreover confirmed by the fact that the decision in dispute had the effect of depriving the person concerned of his A 3 Grade in which he had been temporarily classified whilst performing his duties with the Office.

b) The disputed decision, moreover, naa the purpose of strengthening the Publications Division, which became necessary by the multiplication of tasks concerned with information owing to the development of the Community's activities.

c) The contested decision was in no way intended to fill a vacant post within the meaning of Article 4 of the Staff Regulations but constituted a measure under Article 7 of the Staff Regulations which did not have to be preceded by a vacancy notice. The fact that the appointment in question was not preceded by such a notice does not therefore render it null and void.

C —) In his reply the applicant points out that one cannot—as was done by the defendant—divorce the two contested decisions. For the purpose of assessing their legality they form one entity for it is the decisions relating to Mr Angelino which relieved the applicant of his duties.

1) It follows that this decision ought to have been put in writing and that the reasons for it should have been given and that it should, independently of any other consideration, be annulled for that reason alone.

2) The disputed decision had resulted in a capitis diminutio of the applicant, since it relieved him of the performance of his duties, thus compromising his personal prospects for the future. That this is so can be shown by the following facts: Moreover he offers to prove these facts by witnesses.

in July 1970 consideration was given to posting the applicant to the Commission's Scientific and Technological Information Department;

the applicant had in fact before July 1970 performed the duties of chief editor of the magazine ‘Communita Europee’ whereas since July 1970 he was in respect of these activities replaced by Mr Angelino;

on 26 July 1970 he was entrusted with a single mission to Italy whereas the Italian language editor of the Publications Division might constantly be in Rome (the reason why Mr Angelino in fact received this posting);

at present he carries out what for him are unusual tasks, such as giving talks and editing brochures, work which does not correspond to his duties as Italian language editor.

3) As regards the reasons which in the defendant's view led to Mr Angelino's appointment, the applicant by way of reply states that this appointment was not intended to strengthen, and in any event did not have the effect of strengthening, the Publications Division. In fact all Mr Angelino had done was to replace the applicant and in addition to obtain the posting of Rome. Besides, another official, Mr Speranza, was subsequently withdrawn from the Rome office which reduced the number of officials in Rome to its previous level. According to tne applicant tne act by which an institution accords an advantage to a servant by placing another servant in a lesser position when no interest of the service justifies such conduct, amounts without a doubt to a misuse of powers.

4) Finally, in reply to the defendant' s argument that Mr Angelino's transfer amounts to a measure under Article 7 rather than under Article 4 of the Staff Regulations, the applicant argues that the application of this first provision in no way excludes the second. Quite to the contrary, it follows from Articles 7 and 29 of the Staff Regulations that if the appointing authority may effect transfers, it can only do so after publishing a vacancy notice in accordance with Article 4 of the Staff Regulations.

D —) In its rejoinder, the defendant quotes different facts from which it can be seen that the applicant, whilst no longer as in the past called upon to collaborate in editing “Comunità Europee”, has nevertheless been entrusted with other editorial tasks the accomplishment of which constitutes no handicap for his professional future. As regards the interpretation of Articles 4 and 7 of the Staff Regulations, the defendant further adds that the real problem is in fact whether a change of posting necessarily amounts to a means of filling a vacant post within the meaning of Article 4 of the Staff Regulations. Where the appointing authority moves an official together with his post from one administrative unit to another in order that that official may perform duties corresponding to his grade, even if those duties are not identical with those previously performed it does not fill a vacant post within the meaning of Article 4 since the official, as is the case here, is transferred together with his post. Besides, , the requirement of publication can only be insisted upon where it is capable of achieving the purpose intended by the Staff Regulations, that is, to bring forth applications. Where the appointing authority has no choice as regards the candidate to be appointed—which is the case here since it was obliged to give Mr Angelino priority when it posted him—publication is not required.

E —) In the course of his oral argument the applicant pointed out that in the present case Mr Angelino was not transferred together with his post. After coming from the Spokesman's Group, Mr Angelino was assigned to a cabinet. When he had to be restored to his former post with the Spokesman's Group, once his secondment had terminated, the defendant transferred the post from the Spokesman's Group to the Directorate-General for Press and Information and thus assigned Mr Angelino to an altogether different post. A transfer of this kind, without a prior vacancy notice is not permissible. In its oral argument the defendant stated that to require that there be a vacancy notice of an official in relation to each change of post would not be in accordance with the Staff Regulations; where an official is transferred from one department to another in order to carry out there tasks corresponding to his grade, tasks which, moreover, are similar to or identical with those which he had previously performed, then such action cannot be construed as the abolition of a post and the creation of a new post so as to require the publication of a vacancy notice. This is in accordance both with the case-law of the Court of Justice (Judgment of 9 July 1970, in Case 35/69, Lampe-Grosz [1970] ECR) and with that of the French Conseil d'État (CE 21 June 1968).

Grounds of judgment

1. By application lodged on 4 November 1970 the applicant brought before the Court an application for the annulment of the defendant's decision of 6 May 1970 transferring Mr Angelino, an official in Grade A 4 with the Spokesman's Group, to the Directorate-General for Press and Information, Publications Division, and posting him to Rome.

2. This decision is said to have had the effect of relieving the applicant, who was an administrator in Grade A 6 in that division, of his duties as Italian language editor of periodic and non-periodic publications of that division or of the press office in Rome, in particular in so far as the editing of the review “Comunità Europee” is concerned.

3. The applicant alleges in the first place that the contested decision must be annulled because no vacancy notice had been published, whereas under Article 4 of the Staff Regulations any vacancy in an institution shall be notified to the staff once the appointing authority decides that a post is to be filled.

4. The defendant replies that it did not fill a vacancy but only transferred a post because it was necessary to strengthen the Publications Division by reason of the increase in relating to information consequent upon the development of the Community's activities.

5. The appointing authority may in the interest of the service transfer a post from one Directorate-General to another where it considers that such a post is more useful in the department to which it is allocated than in that from which it is removed.

6. Where the post is transferred without any substantial change in the duties attaching to it, it does not amount to the creation of a new post.

7. Besides, where the official who occupied the transferred post is transferred together with it there is no vacancy, nor consequently is there an obligation to implement the procedure provided for such a case.

8. In the present case the defendant states that the post held by Mr Angelino with the Spokesman's Group and the post which he holds in the Publications Division were similar.

9. The applicant has submitted nothing capable of invalidating this statement.

10. Besides, contrary to the applicant's allegations, it appears from the Court file that the post transferred really went to strengthen the staff of the Publications Division.

11. Accordingly there was no need for a vacancy notice to be published.

12. The submission must therefore be rejected.

13. The applicant further alleges that consequent upon the transfer in question he was discharged from his job as editor of the review “Comunità Europee”, thus in fact relieving him of his duties without new tasks being entrusted to him.

14. The higher authority alone is responsible for the organization of the departments which it must be able to determine and modify according to the exigences, of the service, without prejudice to the rights which servants enjoy under their Staff Regulations and which they can ask the Court to enforce.

15. In particular it is clear from Articles 5 and 7 of the Staff Regulations, that an official has the right to expect that the duties which are assigned to him should as a whole be in keeping with the post which corresponds to the grade which he occupies in the scale of posts.

16. Withdrawing from an official one or more of the departments for which he was previously responsible may in certain circumstances amount to an infringement of this right.

17. Whilst it is correct that the applicant is no longer entrusted with the editing of the review “Comunita Europee” it is no less clear that since this task came to an end he has carried out other editorial activities in the Italian language.

18. Whilst this work differs from that previously done, there is nevertheless nothing to show that it is not in conformity with his grade.

19. The submission must accordingly be rejected.

20. The applicant goes on to allege that the contested measure ought to be annulled because it was not notified to him and because no reasons for it were given.

21. Under Article 25 of the Staff Regulations any decision relating to a specific individual must be communicated in writing to the official concerned.

22. In the present case the contested decision in question only had to be notified to the official to whom it related.

23. Under the said Article 25 it only had to state the reasons on which it was based as regards the addressee thereof if it adversely affected him.

24. The submission is therefore unfounded.

25. Finally, the applicant does not establish in what manner the act of posting Mr Angelino to a post in the Publications Division which corresponded to his grade constituted a misuse of powers.

26. In the absence of precise allegations on this point this submission must like wise be rejected.

27. The application must therefore be dismissed.

Costs

28. Under the provisions of Articles 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. However, under the terms of Article 70 of the said Rules, the costs incurred by the institutions in actions brought by employees of the Community are to be borne by such institutions.

29. The applicant has failed in his action.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community; Having regard to the Staff Regulations of Officials, especially Articles 4, 5, 7, 90 and 91; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (First Chamber) hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.