JUDGMENT OF 27. 6. 1973 — CASE 35/72 KLEY v COMMISSION

In Case 35/72

THE COURT (Second Chamber) composed of: P. Pescatore, President, M. Sørensen and Lord Mackenzie Stuart (Rapporteur), Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts

The facts of the action may be summarized as follows:

1) Mr Walter Kley is a qualified physicist and has been since 1966 a University agrégé. On 1 May 1960 he entered the service of the EAEC and was charged by the Director General with organizing the spectroscopy of neutrons at the Ispra-I reactor at the Joint Research Centre, Ispra.

2) He was appointed in Grade A 7 and on 1 November 1960 he was promoted to Grade A 5 and on 1 January 1962 to Grade A 4. At the end of 1962 the applicant was called upon to run the ‘Experimental Physics’ section. On 1 September 1970 he was appointed head of the new ‘Physics Division’ in Grade A 3. There he was in control of a large scientific staff comprising some forty university graduates in addition to technical and administrative staff properly so-called.

3) In summer 1970 the Director-General of the Joint Research Centre, Mr Caprioglio, decided to reorganize the Ispra Joint Research Centre and in particular to transfer the ‘Experimental Physics’ section, which was incorporated in the ‘Physics Division’, to the ‘Nuclear Studies Division’. This step met with very lively opposition from the officials concerned.

4) In October 1971, Mr Kley established ‘working groups’ for the preparation of experiments for the Sora reactor, of which he was the originator.

5) On 26 November 1971, Mr Finzi, Scientific Director of the Ispra establishment, addressed to Mr Kley a memorandum in the following terms:

‘I am therefore informing you that I have decided to entrust you with responsibility for the Ispra-I reactor from 1 January 1972 …

This decision, taken in conjunction with the decision to transfer the physics group of the reactor to the ETN Division, constitutes an essential improvement in the organization of the establishment.’

6) On 29 November 1971, Mr Kley went on a mission to Bonn and Brussels in connexion with the Sora programme.

7) On 2 December 1971 Mr Kley sent to Mr Spinelli, member of the Commission responsible for Euratom questions, a memorandum, a copy of which was sent to Mr Caprioglio, and in which in particular it was stated:

‘I was given yesterday responsibility for the Ispra-I reactor. Unfortunately, I must inform you that my scientific work and my interests concern above all the subjects of condensed matter, neutron physics and the evolution of pulsed neutron sources, and that my university obligations at the Munich Technical College do not permit me to accept an additional obligation such as responsibility for an experimental reactor.

On these grounds I reject the claims of the Directorate of the Joint Research Centre.’

8) On 13 December 1971 the Director General, Mr Caprioglio, asked the Director-General of Personnel and Administration to cause his departments to examine the possibility of starting disciplinary proceedings against Mr Kley. The letter requesting disciplinary measures was worded as follows:

‘The complaints which I make against Mr Kley are as follows:

a) Although, by note No 0.01/729/71, of 26 November 1971, I pointed out the necessity for complying with the requirements of the Regulations regarding the prohibition of an official's making, without authorization, outside contacts capable of harming the institution, particularly in the present difficult circumstances, Mr Kley went on a mission to Bonn without authorization, and without informing me or his superior, the Scientific Director of the Ispra establishment, of his actions. Please find attached his travel order which I refused to sign. I would add that Mr Kley has already been guilty of this type of breach of the established rules.

b) In answer to a memorandum from the Scientific Director of the Ispra establishment, Mr Kley felt justified in divulging to numerous officials a copy of a letter which had been sent to him by the Scientific Director, as well as a copy of a controversial reply accusing the latter of creating numerous scientific and human problems. The disclosure was of a nature calculated to weaken the authority of the Directorate in the eyes of staff.

c) Moreover, for the same reasons, Mr Kley, ignoring the normal official channels, wrote directly to Mr Commissioner Spinelli. I had recently called Mr Kley to order and I was hoping that this warning would be heeded. The attitudes which he has recently taken up show that this was not the case. In spite of the patience which I have shown, I can no longer tolerate insubordination of this kind.’

9) On 14 December 1971, Mr Kley received the transfer documents for the officials affected by the reorganization, but he did not pass them on. Next day, in a note addressed to Mr Commissioner Spinelli, he wrote: A copy of this note was sent to the Director-General, Mr Caprioglio, and to Mr Finzi, Director of the Scientific Directorate.

‘As I am of the opinion that this decision is extremely prejudicial to the Joint Research Centre, both in the human and the scientific spheres, it is impossible for me in good conscience to pass on the transfer documents. For this reason I request an interview in the course of which I should like to enlighten you with regard to the connexions between this decision and the whole of the problems raised by Sora — reorganization and management… before you give binding force to this decision.’

10) On 20 December 1971, Mr Kley transmitted, through his immediate superior, his observations regarding the complaints set out in the note from the Director-General of 13 December 1971.

11) On 7 January 1972, Mr Commissioner Spinelli replied to the note from Mr Kley of 15 December 1971 suggesting an interview.

12) On 10 January 1972, Mr Caprioglio informed Mr Kley that he would be relieved of his post as Head of Division of the ‘Physics Division’ and mentioned the scientific and personal difficulties which had arisen between them.

13) In the note accompaying the observations of the applicant of 20 December 1971, the Director-General on 11 January 1972 requested the Director-General of Administration to consider the request for an examination of the possibility of initiating disciplinary proceedings as being withdrawn. He explained his change of attitude as follows:

‘In fact I am convinced that the attitude taken up by Mr Kley on the occasion of the actions referred to in my previous note was due to the fact that the administrative duties with which I had entrusted him did not correspond to his abilities and interests, rather than to a deliberate intention to ignore the normal channels.’

14) On the same day, that is 11 January 1972, the Director-General relieved the applicant of his post and appointed him adviser to the Ispra Scientific Directorate, charged in particular with the coordination of work regarding the experimental programme connected with the use of the Sora reactor. This letter includes in particular the following passage:

‘I should like to thank you for the work which you have carried out up to the present in your capacity as Head of Division of the “Physics Division”, which required you to carry out administrative duties in which, as you have informed me on several occasions, you have not much interest, and which I was recently compelled to increase to the detriment of your scientific activity.’

15) The description of the basic posts mentioned in Annex I to the Staff Regulations was brought to the notice of staff by Circular 9/63 of 13 March 1963 from the Directorate General of Personnel and Administration. The duties of adviser and those of Head of Division corresponded to Grade A 3. The duties of adviser are those of a highly qualified official required to advise an organ of the institution or responsible for research or supervision under the authority of a Director-General or a Director.

16) On 28 January 1972 Mr Kley received from Mr Finzi a departmental order in manuscript, neither dated nor signed, inviting him to coordinate the ‘working groups’ for the preparation of a comprehensive report. Mr Kley refused, on the ground that in his view this method of work was not scientifically practicable.

17) On 21 April 1972, Mr Finzi, in a note addressed to Mr Kley, informed him:

‘I regret that you have not accepted the responsibility which was offered to you regarding the experimental Sora programme. I can only tell you once more that this opportunity still remains open if you so desire.

I should like to express to you my satisfaction at seeing you propose experimental activity using the Ispra-I reactor.’

18) Following an exchange of notes with the Director-General, Mr Kley became responsible for an experimental programme with an allocation of 10000 UA, but, as the spectrometer which was entrusted to him was out of action and as no permanent technician had been recruited, he carried out no experiments between the date of the transfer in dispute and the present action.

19) On 10 February 1972, Mr Kley put forward a complaint, in accordance with Article 90 of the Regulations, to the President of the Commission, requesting the cancellation of the decision taken on 11 January 1972. His complaint, which was registered on 18 February 1972, remained without reply at the expiry of the period of two months.

II — Procedure

On 16 June 1972, Mr Kley started the present action. The written procedure followed the normal course.

After hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General, the Court (Second Chamber) decided to open the oral procedure without any preparatory inquiry. The parties were invited to concentrate, in their oral explanations, on describing the duties of the applicant. The Court (Second Chamber) invited the applicant and the Director-General, Mr Caprioglio, to be present personally at the oral procedure. At the hearing of 21 March 1973, after hearing the oral observations of the representatives of the parties, the Court put certain questions to the applicant and to Mr Caprioglio with a view in particular to defining the duties assigned to the applicant after 11 January 1972 and the duties in fact carried out by him.

The Advocate-General presented his opinion at the hearing on 5 April 1973.

III — Submissions of the parties

The applicant submits that the Court should:

annul the decision taken and refer the case back to the Commission;

order the defendant to pay the costs of the action;

alternatively,

state that the defendant is required to produce at the hearing the establishment plan of the Ispra Joint Research Centre, as at 11 January 1972;

permit the applicant to prove by witnesses that, at the time of the interview on 26 January 1972, the Director-General of the Joint Research Committee, Mr Caprioglio, gave as the reason for his transfer decision of 11 January 1972 the flouting by the applicant on two occasions of his authority in the chain of command.

The defendant submits that the Court should:

declare the present action inadmissible or unfounded;

order the applicant to pay the costs.

IV — Pleas and arguments of the parties

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

A — Admissibility

The defendant pleads that the action is inadmissible on the ground that it is directed against an act which does not adversely affect the applicant. It submits that the decision of 11 January 1972 may be analysed as a transfer within the same department, carried out in the interests of the department, not involving any change in place of employment, and amounting in short to a simple change of post in the same place.

The applicant remained, as in the past, an official of Grade A 3; it follows that the decision complained of by no means constituted a breach of the requirements of the Regulations regarding equivalence between grade an post, and, from this point of view, the decision in dispute did not adversely affect the applicant.

In support of this line of argument, the defendant quotes the case law of the Court, in particular:

(Joined Cases 18 and 35/65) (Rec. 1966, p. 149)Max Gutmann v Commission of the EAEC.

(Case 21/68) (Rec. 1969, p. 85)Andre Huybrechts v Commission;

(Case 55/70) (Rec. 1971, p. 379)Andreas Reinarz v Commission.

The defendant also takes its stand on the decisions of French administrative courts in stating that cases of transfer within the same department, when they do not involve either change of residence or any derogation from the status of the party concerned under the Regulations, remain always subject to the discretionary power of the administration, which is the master of the organization of its own departments.

The applicant replies that the concept of an act adversely affecting an official, such as is set out in Articles 25 and 91 of the Staff Regulations, cannot be interpreted in a restrictive manner. He maintains that an action is open to officials, in particular if departmental orders have the character of a disciplinary measure. He takes his stand in this respect on French administrative law and on the case law of the Court:

Gutmann case (cited above);

(Case 16/67) (Rec. 1968, p. 431)Henri Labeyrie v Commission;

Reinarz v Commission (cited above).

He maintains that the admissibility of the present action is intimately bound up with its merits and refers in this connexion to the Judgment:

Klaer v Commission (Case 15/65) (Rec. 1965, p. 1295).

The defendant retorts that if the applicant's proposition was admitted, it would have the effect of preventing in the future any transfer of this type without the formal agreement of the official concerned.

B — Merits

In support of his proposition with regard to the illegality of the contested decision, the applicant puts forward the following pleas:

1) Infringement of Article 25 inasmuch as:

a) no reasons for the decision were stated or

b) no sufficient reasons were stated within the meaning of the said Article or

c) the reason stated is inaccurate;

2) Infringement of Articles 5 and 7 and of Annex I to the Staff Regulations inasmuch as the post of adviser with the Scientific Directorate does not correspond to the Grade of the applicant, Grade A 3;

3) Misuse of powers inasmuch as the decision constitutes a disguised disciplinary measure owing to the ill will of the Director-General.

First plea

The applicant claims that, in accordance with Article 25, first paragraph, of the Regulations, reasons on which the decision was based ought to have been stated in view of the fact that it was a decision adversely affecting him.

The defendant points out that the reasons on which the decision was based were in fact stated. The last paragraph of the Director-General's note of 11 January 1972 clearly sets out the reasons for which the duties of Head of Division of the Physics Division carried out by the applicant were terminated.

It is true that reasons were not stated in the departmental note of the same day but these were not required, as the note was intended for all departments and not for the applicant alone.

Moreover, the applicant points out that, in his letter of 11 January 1972 to the Director-General of Personnel and Administration, the Director General refers to an alleged lack of ability; and the reasons thus stated are materially inaccurate. The obligation to state the reasons, as prescribed by Article 25, first paragraph, of the Regulations, was therefore not satisfied: the reasons on which the act adversely affecting the official was based did not appear, as required by the Judgment of the Court in Case 27/68 Reinoldus Renckens v Commission (Rec. 1969, p. 255), in a ‘clear and unequivocal manner’.

The defendant points out that an issue based on the material inaccuracy of reasons stated is a fresh issue which concerns supervision of internal legality and not a defect of form. By application of Article 42 of the Rules of Procedure, the Court ought to reject as inadmissible the fresh issue, based on internal legality, as being based on legal grounds distinct from those on which the issue set out in the application was based.

Second plea

The applicant claims that the new duties which were entrusted to him do not correspond to Grade A 3 which is his grade. He states that they were not prescribed in the description of the duties or even in the establishment plan, are void of all content and would entail on the part of the applicant a diminution and a loss of technical and financial facilities. In this connexion he cites the Judgment of the Court in the Case

Werner Klaer v Commission (15/65) cited above. The defendant, on the other hand, submits that there has been no breach of the rule of equivalence between grade and post, and that the differences between the past and present duties of the applicant cannot be quoted as adversely affecting the applicant. It claims that this follows from the Judgment in Case 46/69

Reinarz v Commission cited above and from the opinion of the Advocate-General in that Case. It claims that the present post of the applicant is of a high scientific level, involving genuine scientific tasks, and is of great importance, inasmuch as it deals with the preparation of the Sora programme, with the co-ordination of the work of a large number of physicists, and with the comprehensive presentation of a Sora scientific programme, all of which must give rise to a very important report. According to the defendant, the new duties of adviser devolving upon the applicant correspond to his grade, are prescribed in the description of the duties and by no means derogate from the rights derived from Articles 5 and 7 of the Regulations for the official concerned. In this respect, the defendant takes its stand on the opinion of the Advocate-General in Cases:

Huybrechts v Commission (21/68), already cited,

Reinarz v Commission (46/69), already cited.

The defendant points out that a distinction ought to be drawn between, on the one hand, the budgetary document mentioned in Article 6 of the Regulations, which gives aggregate quantitative indications regarding the allocation of credits intended for expenditure on staff, and, on the other hand, the differentiated description of the organization of the various departments, the establishment plan, which gives indications regarding the distribution of the aggregate credits specified in the first document, which is not for internal use.

The defendant further states that the organization of the various departments is described in the said establishment plan and cannot be fixed in advance in a definitive manner for a whole year. The Regulations create no impediment to modifications of the establishment plan, since indeed they are silent with regard to the concept of establishment plan and recognize only that of the list of posts.

The applicant replies that if the post had indeed been provided for, it was astonishing that a vacancy in a post of such ‘high scientific importance’ was not brought to the notice of staff so that this post might be entrusted to the best qualified and most competent official.

In fact the post of adviser to the Scientific Directorate had, he claimed, been created to serve as a ‘siding’ for him.

The defendant retorts that in the event of the applicant's intending to introduce an issue based upon an infringement of Article 6 of the Regulations, this issue, as it constitutes a fresh issue, must necessarily be rejected as inadmissible.

The defendant continues that the applicant, in any event, is not the person aggrieved by the alleged adverse act. The only persons who would appear to be in a position to raise criticism with regard to this matter are the colleagues of the party concerned, who, it may be, were precluded from putting forward their candidature for the vacant post by reason of the alleged defect in procedure, and who might, on these grounds, regard themselves as aggrieved.

Third plea

The applicant sees evidence of a misuse of powers in various aspects of the case and, in particular, in

the commencement, followed by the suspension, of the disciplinary procedure initiated after his refusal to abide by the decisions of the Director-General concerning the reorganization, and

the reasons given for the decision transferring him to a post not involving any genuine work and which constitutes a disguised disciplinary measure.

In this connexion, he submits that the ‘lack of interest’ and above all the ‘lack of ability’ alleged are controverted.

The defendant states that the decision of 11 January 1972 was taken in the sole interests of the department, within the framework of the discretionary power attaching to the competent authorities of the institution and concerning the arrangement of the departments and the best distribution of posts. On these grounds, it claims to benefit from the presumption according to which transfers are decided in the interests of the department.

The defendant further states that the applicant by no means claims that the interests of the department did not require the adoption of the decision taken. Even if the point of view of the applicant, who claims to be the victim of a disguised disciplinary measure, were to be adopted in its totality, it would follow at the most that the act complained of, having also been undertaken with a legitimate object (the interests of the department), would have a plurality of objects and that for these reasons it could not be assailed on the ground of misuse of powers.

The disagreements regarding the reorganization of the Ispra Centre do not, in the defendant's view, have the obvious appearance of objective, relevant and concordant signs of a misuse of powers.

In order that there might be a disguised disciplinary measure, there would have to be, to begin with, a disciplinary measure capable of being disguised, and thus similar in its effects to the step actually taken.

The Staff Regulations do not include transfer in the scale of disciplinary measures; a transfer decision could only be annulled as being a measure adversely affecting an official, as may be the case in connexion with a transfer entailing a change of residence, and after it has been shown, on the basis of objective, relevant and concordant signs that the decision was taken to attain objects other than those put forward.

The letter requesting that a disciplinary measure be initiated is not in keeping with the other facts advanced by the applicant to establish a misuse of powers.

Finally, the Commission refers to the case law of the Court, according to which the latter is not competent to substitute its own value judgment for the estimates by the administration of the professional ability of an official

Judgment Fulvio Fonzi v Commission of the EAEC (Cases 27 and 30/64) (Rec. 1965, p. 615).

The applicant replies that the transfer decision complained of was very badly received by the staff of the Physics Division.

He states that on 26 January 1972, a delegation of research workers, received by the Director-General, asked the latter what reasons had induced him to deprive the applicant of his post as Head of Division; they received the reply that on two occasions the applicant had not respected the authority of the Director General.

The applicant further states that in his new post he is condemned to idleness; he has never been consulted by the Director in his capacity as scientific adviser. The duties which the Director-General wished to assign to the applicant were those which he had already exercised formerly in his capacity as Head of Division, with the essential difference that now he is no longer to possess the attributes of authority and decision inherent in his grade under the Regulations.

The defendant retorts that the delegation of research workers came above all to make enquiries of the Director-General with a view to ascertaining whether the departure of Mr Kley from the Physics Division was to be interpreted as a repudiation of the lines of scientific investigation followed until then by that Division.

On the other hand, certain reasons were advanced by the Director-General regarding the difficulty of his relations with Mr Kley from the point of view of the administrative management of the Division.

The defendant reaffirms that in fact it was the applicant himself who refused to accept the responsibilities offered to him regarding the Sora experimental programme. The interest of the applicant in the duties carried out by him in his capacity as Head of Division could not suddenly have disappeared when he was invited to resume the same functions after his transfer.

Grounds of judgment

1. The action is for annulment of the implied decision rejecting the complaint lodged by the applicant on 10 February 1972 against the decision of 11 January 1972 by the Director-General of the Ispra Joint Research Centre relieving him of his duties as Head of Division of the Physics Division in order to appoint him as adviser to the Scientific Directorate.

Admissibility

2. The Commission pleads that the action is inadmissible on the ground that it is directed against an act not adversely affecting the applicant within the meaning of Article 91 of the Staff Regulations.

3. The transfer decision, it is contended, did not involve for the applicant any modification of his material interests or any reduction in his rank in the hierarchy, and consequently it did not adversely affect his legal position.

4. Even though a transfer decision may not affect the material interests or the rank of an official it may, having regard to the nature of the duty in question, and to the circumstances, adversely affect the morale and the future prospects of the employee concerned.

5. In these circumstances, it cannot be considered a priori that such a decision is not capable of adversely affecting the person concerned.

6. The objection must therefore be rejected.

Merits

As to the statement of reasons in the decision

7. In accordance with Article 25 of the Regulations, any decision adversely affecting an official shall state the reasons on which it is based.

8. A transfer decision, contrary to the wishes of the person concerned, for the reasons set out above, adversely affects an official within the meaning of that Article and the reasons on which it is based must therefore be stated.

9. The applicant maintains that the reasons given for the contested decision do not comply with the requirements of Article 25 of the Regulations, inasmuch as they are neither complete nor in accordance with the facts;

10. that the allegation in the memorandum bringing the said decision to the notice of the applicant and according to which he had not much interest in ‘administrative duties’ is refuted by the fact that for ten years past he had carried out administrative responsibilities with distinction;

11. that in reality the said decision was based on his refusal to carry out the decision of the Director-General relating to the transfer of members of the Experimental Physics Section and on his refusal to accept responsibility for the Ispra-I research reactor;

12. that on 10 January 1972 the Director-General justified his decision by referring to the attitude taken by the applicant with regard to the reorganization of the Centre; and

13. that on the occasion of an interview with research workers from the Centre on 26 January 1972, the Director-General gave as the reason for his decision the flouting of his authority on two occasions.

14. These allegations, which were not explicitly denied by the defendant, were substantially confirmed in the course of the oral procedure before the Court.

15. It is moreover reasonable to suppose that the attitude of the applicant constituted a determinative factor in the decision.

16. To decide whether the requirements of Article 25 were complied with, it is appropriate to consider the circumstances in which the contested decision was taken.

17. The documents in the case reveal the existence of a fundamental divergence of opinion between the applicant and the Director-General with regard to the plans for reorganization of the Centre and a frequently uncompromising attitude on the part of the applicant.

18. The applicant declared himself to have no interest in the execution of the plans of the Director-General, at least in so far as the management of the Ispra-I reactor was concerned.

19. In the circumstances the description of the attitude of the applicant by reference to his lack of interest in administrative duties was a reasonable conclusion and one which was, moreover, expressed with much discretion.

20. In spite, therefore, of the very elliptical form of the statement of reasons, the contested decision satisfies the requirements of Article 25.

21. This plea must be rejected.

As to the contravention of Articles 5 and 7 and Annex I to the Regulations

22. The applicant quotes Article 7 of the Regulations, according to which an official must be assigned to a post in his category or service which corresponds to his grade, and states that the duties entrusted to him did not correspond to his grade.

23. In this respect the applicant, whilst admitting that the post of adivser to the Scientific Directorate corresponds technically to his grade, maintains that his new post is without genuine content; and

24. that it had not been provided for in the establishment plan, but had been created to serve as a ‘siding’ for him in contravention of Article 5.

25. It appears that the principal duty which the Director-General intended to assign to the applicant in his new post consisted in proceeding with the coordination of the operations of the working groups within the framework of the experimental programme bound up with the use of the Sora reactor and with the the presentation of a comprehensive report regarding these operations.

26. The applicant refused to undertake this work on the ground that, from the point of view of organization, as the method consisted in working out a comprehensive report without having any authority over the research workers involved or any direct responsibility for them, the said method would be defective.

27. In these circumstances it was necessary to entrust the work which the applicant refused to the Assistant Scientific Director, who duly produced a full report.

28. The applicant has by no means established that this work would have been of a level manifestly inferior to the post corresponding to his grade, but has confined himself to stating the reasons for which he considered it as not consonant with his abilities.

29. Assessment of the ability of an official is a matter within the competence of the administration.

30. Even if, therefore, the post of adviser had been created with the sole object of withdrawing from the applicant direct responsibility for the Physics Division, and even if his new duties were not dealt with in the establishment plan, this fact does not indicate a lack of correspondence between the grade and the post of the applicant.

31. This plea must be rejected.

As to misuse of powers

32. According to the applicant, a transfer decision may be tainted with misuse of powers if it appears, on the basis of objective, relevant and concordant evidence, to have been taken for purposes other than those indicated.

33. The applicant sees such evidence in the request of the Director-General to the effect that disciplinary measures be taken with regard to him and in the fact that this request was withdrawn on the very day on which the Director-General took the decision complained of.

34. He maintains that this fact demonstrates that the transfer was in reality a disguised disciplinary measure; and

35. that the Director-General had adopted such disciplinary measure by reason of the fact that the applicant had opposed his plans for the reorganization of the Centre.

36. The attitude adopted by the applicant with regard to the said plans constituted a real obstacle to the reorganization of the work at Ispra, for which the Director-General was responsible in his capacity as superior in the chain of command.

37. Whatever may have been the justification for the request for the adoption of disciplinary measures, the later withdrawal of the latter and the decision to transfer the applicant may be regarded as an alternative solution in the interests of the department, coming within the competence of the Director-General.

38. The Director-General was entitled to draw the conclusion that the applicant was not in a position to accept responsibility for the execution of plans which he had so vehemently opposed.

39. The applicant has not provided in support of his allegations any cogent evidence making it possibile to suppose that the Director of the Centre, who, moreover, was acting intra vires, had used his powers for a purpose other than the interests of the department.

40. This plea must therefore be rejected.

Costs

41. The applicant has failed in his action.

42. Under the terms of Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

43. However, under the terms of Article 70 of the said Rules, the costs incurred by institutions in actions brought by employees of the Community are to be borne by such institutions.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaties establishing the European Communities; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff regulations of the European Communities, especially Articles 5, 7, 25, 91 and Annex I; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (Second Chamber) hereby:

1 Dismisses the action;

2 Orders each party to bear its own costs.