C-4/74

JUDGMENT OF 10. 7. 1975 — JOINED CASES 4 AND 30/74 SCUPPA v COMMISSION

CELEX: 61974CJ0004
Datum: 1975-07-10
Källa: eur-lex.europa.eu

In Joined Cases 4/74 and 30/74

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

gives the following

JUDGMENT

Facts

The facts and the arguments put forward by the parties in the course of the written procedure may be summarized as follows:

I — Facts

Mr Giuseppe Scuppa, of Italian nationality, entered the service of the Commission of the EEC (secretariat executif) on 21 May 1959.

By decision of 18 December 1968, he was transferred within the Institution and promoted from a Principal Administrator post, with responsibility for agricultural matters, to the Secretariat-General of the Commission as Head of Division VI/E/3 (Social Structures and Land Tenure) in the Directorate-General for Agriculture, Directorate for Structures and Environment

Mr Scuppa actually started work in his new post on 2 March 1969. Previous to this, on 10 February 1969, the Commission had, at Directorate (VI/E) level drawn up a ‘programme of work’ in connexion with the social and cultural memorandum called the ‘Mansholt Plan’; in this ‘programme of work’ the Head of Division VI/E/3 was placed under the Head of Division VI/E/1.

During the following months, Mr Scuppa felt on numerous occasions that he had cause for complaint regarding his subordination to a colleague classified in the same grade and occupying the same post as himself, and regarding attitudes and incidents which, in view of their frequency and of the general situation, he regarded as insults, threats or harassments liable to undermine his reputation in the service and his authority in the section of which he was the responsible head.

On 9 March 1973, the Commission informed Mr Scuppa that, as part of the restructuring of departments as a result of enlargement of the Communities it had, at its meeting on 13 February 1973, decided to confirm him in his capacity as Head of Division in the Directorate-General for Agriculture.

By decision of 16 May 1973, Mr Scuppa was transferred, as Head of Division, from Division VI/E/3 to Division VI/D/4 (tobacco, hops, potatoes and other specialized crops). He was not given formal notice of this decision but it was brought to his knowledge by word of mouth on 17 May by the Deputy Director-General of Directorate-General VI.

On 15 June 1973 Mr Scuppa submitted through his immediate superior, pursuant to Article 90 of the Staff Regulations of Officials, a complaint against the decision on 16 May to transfer him; there has been no reply to the complaint, which was registered at the Secretariat-General of the Commission on 18 June 1973.

On 20 June 1973 Mr Scuppa, pursuant to Article 2 (3) of Regulation No 2530/72 of the Council of 4 December 1972, introducing special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States and for the termination of service of officials of those Communities (OJ L 272, p. 1) requested the application of a measure terminating his service. In his request Mr Scuppa made the following statement:

‘This request is submitted for the reasons and in the circumstances explained by the undersigned in his complaint under Article 90 of the Staff Regulations, which was registered at the Secretariat-General on 18 June 1973. Consequently, if, as is to be hoped, the Commission gives its decision on the complaint before it gives one on the present request, that is, before 30 June 1973, and in terms which the undersigned accepts as satisfactory, this request is to be regarded as having been withdrawn. Similarly, if this is not the sequence of events, the undersigned takes the view that a decision of the appointing authority to terminate his service must be regarded as being no longer based on the present request and, accordingly, must be declared null and void or revoked, on application submitted by him when the outcome of the complaint is known.’

At its meeting on 27 June 1973, the Commission decided to grant Mr Scuppa's request and fixed 1 July 1973 as the date when the termination of his service came into effect. This decision was communicated to Mr Scuppa by letter of 9 July.

On 19 July 1973 Mr Scuppa requested the Commission to inform him, in the light of the decision of 27 June 1973 and of the connexion between his request on 20 June for termination of his service and his complaint of 15 June, of the outcome of his complaint.

On 8 October 1973 Mr Scuppa lodged a complaint with the Commission against the decision of 27 June 1973 terminating his service. The complaint has produced no result.

II — Written procedure and submissions of the parties

On 15 January 1974 Mr Scuppa brought an action, registered under No 4/74, in which he claimed in essence that the Court should:

annul the decision of the Commission of 16 May 1973 relieving him of his duties as Head of Division VI/E/3 and assigning him to duties as Head of Division VI/D/4;

annul the implied decision rejecting his complaint of 15 June 1973;

annul, in consequence, the appointment of Mr John Scully as Head of Division VI/E/3;

order the Commission to pay, subject to increase in the course of proceedings, damages of one Belgian franc;

order the Commission to pay the costs.

On 19 February 1974, pursuant to Article 91 of the Rules of Procedure the Commission asked the Court to dismiss the action as inadmissible without going into the substance and to order the applicant to pay the costs.

On 8 May 1974, Mr Scuppa brought a second action, registered under No 30/74, in which he claimed, in essence, that the Court should:

annul the implied decision of the Commission rejecting his complaint of 8 October 1973;

find that his request for ‘voluntary discharge’ of 20 June 1973 was submitted for the reasons set out in his request of 20 June 1973, in his complaint of 8 October 1973 and in his application of 15 January 1974;

declare that the decision taken by the Commission on 27 June 1973 terminating his service was a consequence of the illegal decision of 16 May 1973 and of improper conduct on the part of the Commission;

order the Commission to pay him compensation equal to the difference between the financial benefits which he would have received if he had remained in the service of the Commission and those which he will receive as a result of termination of service at his own request;

In the alternative:

annul the decision of 27 June 1973;

restore the applicant to the position in which he was prior to the illegal decision on transfer within the Institution of 16 May 1973 by reinstating him in his post as Head of Division VI/E/3 and restoring his career prospects;

order the Commission to pay the costs.

In a statement lodged on 24 May 1974 the applicant submitted his observations on the objection raised by the Commission as to the admissibility of the application in Case 4/74.

In his application in Case 30/74 and his statement of 24 May 1974, the applicant declared that he had changed the submission in Application 4/74 to the effect that his principal claim was no longer for annulment of the transfer decision of 16 May 1973 but for compensation for the consequences of its illegality.

By order of 28 May 1974 the Court (Second Chamber) decided to join Cases 4/74 and 30/74 for the purposes of the written and oral procedure.

In its statement of defence in Case 30/74, lodged on 10 June 1974, the Commission contended that the Court should:

rule that the application is in part inadmissible, and in any case unfounded, and dismiss it in its entirety;

order the applicant to pay the costs.

By order of 9 July 1974, the Court (Second Chamber) decided to reserve its decision on the procedural objection raised by the Commission in Case 4/74 for the final judgment.

In its statement of defence in Case 4/74, lodged on 30 July 1974, the Commission contended that the Court should:

rule that the application is inadmissible, and in any case unfounded, and dismiss it in its entirety;

order the applicant to pay the costs.

The written procedure in both cases followed the normal course.

On the report of the Judge-Rapporteur, after hearing the Advocate-General, the Court (Second Chamber) decided to open the oral proceedings without any preparatory inquiry.

By letters dated 22 January 1975, however, the Court gave the parties an indication of the order in which it wished the different issues raised by thé applications to be taken during the oral proceedings.

III — Submissions and arguments of the parties in the course of the written procedure

A — Case 4/74

Admissibility

The Commission considers the application to be inadmissible from two points of view.

1) As regards the application for annulment there is, on the part of the applicant, a want of that interest which is one of the essential conditions for the admissibility of an action for annulment of an executive decision. The inadmissibility of an action commenced by someone who, at the time when it is brought before the Community judicature, is no longer a servant of one of the institutions of the Communities, arises from a combination of two very widely accepted principles: that the applicant's legally recognized interest must be determined as at the time the action is brought, and that persons who are not servants of a community or public body have no legally recognized interest in contesting a decision concerning one of its officials. In order to establish that an individual has an interest, a favourable decison on his claims by the Court must mean that the interest is safeguarded in the short or long term. In the present case, execution of a judgment declaring the disputed transfer decison to be null and void cannot alter the applicant's position because, having lost the status of an official and ceased to be employed by the institutions of the Communities, the applicant can no longer claim to be employed in any post at all, still less to be employed in his former capacity.

2) As regards the action for damages, it must be said at once that the applicant has not offered any assessment, even in general terms, of the loss which he claims to have suffered; this reflects the high degree of uncertainty in his own mind about the loss and whether it exists at all. As for the facts adduced, the events took place before the transfer decision and, without prejudice to the question whether they, or the interpretation placed upon them by the applicant, are correct or not, they were never the subject of a complaint through his immediate superior prior to that of 15 June 1973. The applicant was therefore time-barred at the time when he submitted the complaint, which could not have validly referred to any of the disputed actions. The applicant has not therefore fulfilled the condition laid down in Article 91 (2) of the Staff Regulations of Officials, namely the obligation to submit a complaint to the appointing authority, in the form and within the period prescribed by Article 90, before lodging an appeal before the Court; his application for damages is therefore in this respect clearly inadmissible. As regards the alleged loss suffered as a result of the circumstances surrounding the transfer decision itself, it must be recognized that it produced no result, as the applicant did not take up the new duties appropriate to the post to which he had been assigned. The application for damages is, moreover, inadmissible on account of its very close connexion with the application for annulment. Finally, the applicant is unable to establish the existence of a right which has been infringed by improper conduct on the part of the Commission; the Staff Regulations do not give an official the right to be heard before his assignment by means of a transfer to a post in his category and appropriate to his grade.

The applicant contends that the objection raised by the Commission as to admissibility is unfounded.

1) The precedents adduced to defeat the admissibility of the application for annulment cannot apply in this case. The transfer decision of 16 May 1973 undoubtedly did harm to the applicant's interests, and especially, because of the surrounding circumstances, his morale and general well-being; it is therefore of the greatest interest to him that the Court should declare the disputed decision illegal. The contention that the applicant did not in fact take up his new duties does not affect his legal interest. The Commission was itself largely responsible for this; moreover, the request for termination of service was lodged subject to the reservation that the transfer was not declared illegal and the applicant in no way excluded the possibility of reinstatement. Finally, inasmuch as the applicant is seeking compensation for the harm done to him by the transfer decision, it is very important that the Court should first establish its irregularity.

2) With regard to the application for damages, it is important to establish, in respect of its close connexion with the application for annulment, that the latter is not inadmissible, that the action for damage is an autonomous form of action subject to its own rules as to the conditions in which it can be brought, and that the applicant has at all times clearly differentiated between his applications for annulment and for damages. The objection based on the alleged absence or uncertainty of damage goes to the substance and not to the admissibility of the application. The complaint of 15 June 1973 expressly referred to developments prior to the transfer. No account should be taken of the argument that it is time-barred, if only because the action for damages is not subject to the time-limits under Article 91 of the Staff Regulations. The Commission's objections to admissibility of the submission based on illegalities affecting the transfer are neither well-founded nor relevant. In respect of the applicant's purported amendment, during the course of the proceedings, of the claims in his Application 4/74, in accordance with which he is now, as his first priority, seeking compensation in the form of damages, the Commission contends that this application for damages is inadmissible because the object of the complaint made through his immediate superior and that of the claims set out in the subsequent application are not the same, and this makes it impossible to satisfy the requirement that there must be a complaint through administrative channels before there can be an appeal to the Court. It cannot be disputed that the sole object of the complaint of 15 June 1973 was to argue in support of annulment of the transfer decision of 16 May 1973. Moreover, the amendment which the applicant states that he has made in the claims in Application 4/74 results in making them indistinguishable from the claims in Application 30/74 and, because of patent want of interest, confirms the inadmissibility of Application 4/74, as regards both the action for annulment and the action for damages; this is quite apart from the other grounds for inadmissibility of the two actions. As the applicant is no longer petitioning for reinstatement in one of the departments of the Commission, at least as his main objective, he has no interest in having the transfer decision, which is the subject of Application 4/74, annulled, and that application has therefore lost its point Recognition of the intrinsic defect which is said to have vitiated the disputed transfer decision is a separate question from that of whether there is any interest to support the action for annulment which is the subject of Application 4/74 as such. The confusion between the submissions in Application 4/74 and those in Application 30/74 necessarily has the effect of rendering the action for damages which is the subject of the first-mentioned action equally inadmissible on the ground of lack of interest, in so far as this action is indistinguishable from that which is the subject of the later application.

The applicant contends that the Commission's objection is devoid of any relevance, as the amendment, during the proceedings, of the claims in Application 4/74 was made within the four corners of the application and was perfectly in order. The Commission is equally wrong in stating that, as thus amended, the application has lost its point because the applicant has not stopped seeking a specific and separate decision under Application 4/74, the only difference between his original and amended claims being the order in which they are set out.

Substance

First submission on annulment

The applicant contends that the disputed transfer decision is in breach of Article 25 of the Staff Regulations of Officials, especially paragraphs (2) and (3) thereof, and is vitiated by infringement of essential procedural requirements.

Although it was a decision affecting an individual, it was not communicated in writing to the applicant or placed on notice boards forthwith in the institution buildings; moreover, no official statement of reasons was given for it or, at least, in the absence of any written communication on the subject, not so far as the applicant was concerned.

Regulation No 2530/72 in no way repealed the Staff Regulations or authorized the Commission to dispense with the rules contained in the regulations when its departments were reorganized in consequence of the accession of new Member States. The Commission cannot arrogate to itself the power to dispense, as it sees fit, with the rule of law in alleged exceptional circumstances, because it is precisely in those circumstances that the Staff Regulations most need to be applied.

The Commission points out, in the general context, that by reason of the objective, magnitude and exceptional character of the measures to be taken under the reorganization of departments in consequence of the accession of the new Member States, together with the fact that, as each measure has a reciprocal effect on the other, they had to be considered and decided upon simultaneously and as a whole, within a fairly short time, there could be no question of following normal procedure, especially as regards publishing vacancy notices, summoning of candidates and preliminary contact with all those concerned. It is against this background that the legality of the decisions arrived at must be judged, in relation both to their justification and to the reasons which led to their adoption, and in relation to the procedure followed. In the case of the Directorate-General for Agriculture, all individual decisions on head of division posts were adopted in the form of approval of a new organization plan, containing names, and embodying the various measures for termination of service, transfer and recruitment which form part of a single decision.

In particular, the following observations require to be made regarding the first submission in the application:

a) The absence of written communication to the applicant of the disputed decision to transfer him does not constitute a ground for annulment; its only effect is to prevent the period for lodging an appeal against the decision from being used against the applicant.

b) The applicant cannot rely on absence of notice board publicity for the disputed decision, as this could affect only third parties.

c) The absence of a formal statement of reasons is not decisive; in order to determine whether the requirements of Article 25 of the Staff Regulations have been satisfied, it is necessary to consider the circumstances in which the disputed decision was taken. As it was adopted as part of a series of exceptional measures, the statement of reasons for it must be judged against the background as a whole and bearing in mind the comprehensive statement of reasons given for the reorganization operation.

Second submission on annulment

The applicant complains that the disputed decision infringes Article 4 of the Staff Regulations and is vitiated as being ultra vires.

The post of Head of Division VI(D) (4), to which the applicant was transferred by the disputed decision, was contrary to Article 4 of the Staff Regulations, not the subject of prior publication of a vacancy notice and was, in fact, never vacant.

The Commission points out that, by definition, the measures adopted in the special and temporary circumstances of Regulation No 2530/72 in general affected all posts in Grades A 1 to A 5 and this is the reason why no vacancy in these posts was published.

In any case there is no basis on which the applicant can rely on failure to publish because this could infringe the rights only of third parties interested in the post concerned.

Third submission on annulment

The applicant contends that the disputed decision was taken in breach of the principle that the exercise of discretionary powers requires that there shall be a complete and comprehensive consideration of all factors involved.

In fact, when the decision was under consideration, everything was carefully and deliberately concealed from the applicant; the object and the effect of this deliberately sustained secrecy was to prevent anything reaching the Commission from the applicant which might influence its decision. Moreover, the Commission considered and finalized the disputed decision in conditions which prevented it from having all the necessary information at its disposal

In the Commission's view, this submission rests on pure allegation based on an inaccurate view of the facts and is wholly lacking in proof. The Commission took the whole of its decisions on release, transfer and recruitment, including the decision in dispute, in the light of all the considerations which, in its view, were necessary to make a success of this unusually far-reaching operation.

Moreover, officials do not possess any right to be consulted or heard before a decision is taken to transfer them within the Institution to a post in their grade and in such circumstances the absence of prior consultation cannot constitute a defect vitiating the legality of the decison.

Fourth submission on annulment

The applicant complains that the disputed decision infringes Articles 7, 25 and 27 of the Staff Regulations and the principle that every decision of the administration must have a precise factual basis and comply with the relevant legal provisions, and that it is vitiated as being ultra vires and a misuse of powers.

A decision of the administration must have a basis, even if it is only implied, and this, in law, may not involve anything but the interest of the service or take into account any considerations of nationality; moreover, a discretionary power may not be exercised for purposes other than those for which it was conferred.

In the present case, it is clearly not possible to justify the disputed transfer decision solely on grounds of the interest of the service or without reference to nationality. On the contrary, it is vitiated by misuse of powers; in fact, it constitutes a disciplinary measure in disguise. The reorganization of departments on which the Commission claims the decision to have been based is nothing but an excuse; the applicant was, personally and individually, the victim of a covert disciplinary measure after the Commission realized that it could not take a decision to dismiss him. It is impossible to claim that it was in the interest of the service to transfer him from a post in which he gave complete satisfaction to one for which his suitability is less obvious.

The Commission maintains that the reasons given for the appointment of Mr Scully to be Head of Division E/3 and for the transfer of the applicant to be Head of Division D/4 are perfectly valid and are, without question, based wholly on the interest of the service. The facts referred to by the applicant concerning, first, differences of opinion between him and his superiors or his colleagues during the years prior to the disputed decision and, secondly, the conditions in which the decision was arrived at, do not in any sense constitute precise or coherent details which might show his transfer to have been a covert disciplinary measure. On the contrary, the absence of any punitive motive is proved by the very fact that the applicant was transferred to a post in the same grade and of comparable responsibility. If there had been any intention to victimize the applicant, it could have been carried out by a measure imposing termination of service under Regulation No 2530/73.

Claim for damages

The applicant contends that the Commission has been guilty of wrongful acts or omissions in the performance of its functions, causing him damage.

These wrongful acts or omissions consisted, in the main, of his being placed under an Official of the same grade and responsibility, the insults and threats he suffered, the circumstances in which the disputed decision was arrived at and the secrecy which surrounded it, its illegality, its consequences and repercussions, (in particular, the quite decisive effect it had on the request for termination of service) and the general attitude of the Commission later on.

These wrongful acts or omissions caused him non-material as well as material damage, for which there must be compensation.

The Commission maintains that it has not infringed any of the applicant's rights under the Staff Regulations and has not therefore committed any wrongful act or omission towards him.

The alleged ‘subordination’ of the applicant is the product of faulty understanding of a division of duties based on the requirements of a rational organization of the work; the ‘insults and threats’ consisted in reality of differences and tensions caused by the attitude of the applicant himself. These occurrences did not amount to a wrongful act or omission any more than the secrecy which is supposed to have surrounded the way in which the decision was arrived at.

In any case, the applicant has given no valid proof of any damage for which he could claim compensation.

B — Case 30/74

Admissibility

The Commission contends for the inadmissibility of the application in so far as its subject matter goes beyond that of the complaint of 8 October 1973; in particular, the claims for, respectively, pecuniary compensation and restoration of the status quo ante the transfer decision of 16 May 1973 have nothing to do with this complaint.

The application is also inadmissible in so far as its purpose is to amend the claims in Application 4/74.

On the first point the applicant argues, first, that the complaint through his immediate superior on 8 October 1973 expressly dealt with the subject of compensation and, secondly, that in the case of an application on which it has unlimited jurisdiction, the Court has been given power not only to proceed to annulment but, on its own motion, also to order compensation to be paid, even if the claims are not in due form.

As Application 30/74 does not amend Application 4/74 or impinge on the claims made therein the second objection is without foundation in fact and, as the Court has itself joined the two cases, it is also without foundation in law.

Substance

The applicant contends that the transfer decision of 16 May 1973 was the reason for his own request for ‘voluntary discharge’ and the decision of 27 June 1973 to terminate his service. The relation of cause and effect between the two decisions of the Commission is apparent from the order in which events took place, the terms in which the applicant submitted his request for ‘voluntary discharge’, and the purpose of the request. As the transfer decision was illegal and the decision to terminate his service merely the consequence of it, the Commission must necessarily draw the appropriate legal conclusions, especially as regards compensation for the loss suffered by the applicant and, alternatively, on its annulment, declare the applicant to be reinstated and, as far as his career prospects are concerned, placed in the same position as he was before.

Furthermore, the decision to terminate his service was out of order because the Commission did not pay regard to the fact that the applicant's request was conditional; it is also illegal because, like the transfer decision with which it is linked, it constituted a covert disciplinary measure and, in any case, a measure adopted for reasons which have nothing whatever to do with the interest of the service.

In the Commission's view, the submissions adduced by the applicant in support of his claim for damages are unfounded. If the decision to terminate the applicant's service is held to be valid, it cannot constitute a wrongful act or omission or give rise to compensation. If, on the other hand, the Court declares the disputed decision to be vitiated by illegality, this calls for annulment and the claim for damages thereby falls. In any case, the amount of damages the applicant is asking for is unreasonable.

As regards the application for annulment the complaint that the disputed decision paid no regard to the conditional nature of the applicant's request calls for the following comments. Regulation No 2530/72 in no way requires a ‘request for voluntary discharge’ to be made and the legality of a measure terminating the service of officials cannot be made subject to the existence of such a request or to the conditions on which it was submitted. The regulation did not, in any case, contemplate requests for termination of service having conditions attached to them, and the very nature of operations for restructuring departments does not allow of such requests being made.

There is, therefore, no objective connexion between the decision to transfer the applicant and his request for treatment under the regulation; the latter was an expression of his wishes made of his own free will. The applicant has adduced no element of proof establishing that the disputed decision was out of order.

IV — Oral Procedure

On 6 February 1975, in accordance with the instructions of the Court (Second Chamber), the parties submitted their oral observations first on Case 30/74 and afterwards on Case 4/74.

With regard to Application 30/74, the parties dealt first with the admissibility of the different heads of claim set out in the application originating the proceedings; with regard in particular to the subsidiary head of claim, they referred first to the application for annulment of the decision of 27 June 1973 and secondly to the application for the applicant to be restored to the position in which he was immediately prior to the transfer decision of 16 May 1973. With regard to the substance of the application, they paid particular attention to the question of the validity and extent in law of the conditions attached by the applicant to his request for termination of service dated 20 June 1973 and especially to the questions whether the applicant was entitled to attach such conditions to it and whether the Commission was entitled to entertain a request couched in such terms.

As regards Application 4/74 the parties confined their explanations to a consideration of the admissibility of the application.

The Advocate-General delivered his opinion at the hearing on 12 March 1975.

By letters of 20 March 1975 the parties were informed that the Court (Second Chamber) had decided to go into the substance of Case 4/74 and were invited to state whether they wished to be heard on this point.

The applicant informed the Court that he hoped to submit oral observations on the substance of Application 4/74 and on certain aspects of it which had, at the request of the Court, not been raised at the previous hearing. The oral procedure on the substance of Case 4/74 was therefore arranged to take place on 15 May 1975. During the hearing the applicant put forward his submissions and arguments; the Commission referred to its written statements.

The Advocate-General delivered a further opinion at the hearing on 26 June 1975.

V — Joinder of cases

By order of 27 June 1975 the Court (Second Chamber) decided to join Cases 4/74 and 30/74 for the purposes of judgment.

Law

1. The objective of the application is, essentially: (a) in Case 4/74: award of damages for the decision of the Commission of 16 May 1973 relieving the applicant of his duties as Head of Division VI/E/3 in the Directorate-General for Agriculture and assigning him to the post of Head of Division VI/D/4 in the same Directorate-General and, in the alternative, annulment of the decision; (b) in Case 30/74: a number of declarations in relation to the decision taken by the Commission on 27 June 1973 to terminate the applicant's service, together with annulment of the decision and the award of damages.

2. In view of the way in which the applicant has linked Application 4/74 concerning the decision of transfer and Application 30/74 concerning the decision to terminate his service, it is first necessary to identify the specific subject-matter of each of these two applications.

3. On 18 December 1968 the applicant was promoted to the post of Head of Division VI/E/3 in the Directorate-General for Agriculture.

4. On 10 February 1969, the Commission drew up a ‘programme of work’ for implementation of the memorandum on the reorganization of agriculture in the EEC, which meant that Division VI/E/3, of which the applicant had just been put in charge, became to some extent operationally subordinate to Division VI/E/1 in the same Directorate-General.

5. The implementation of this administrative arrangement led to repeated difficulty in the relationship between the applicant and the administration of the Commission of which conflicting versions are given by the parties.

6. By decision of 16 May 1973, which is the subject of Application 4/74, the Commission finally transferred the applicant to the post of Head of Division VI/D/4 in the Directorate-General for Agriculture.

7. On 18 June 1973 the applicant lodged a complaint against this decision under Article 90 (2) of the Staff Regulations of Officials.

8. The Commission took no action on this complaint.

9. On 20 June 1973 the applicant submitted a request to the Commission for termination of his service under Article 2 of Regulation No 2530/72 of the Council of 4 December 1972, introducing special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States and for the termination of service of officials of those Communities (OJ L 272, p. 1).

10. The request was accompanied by a supplementary statement by the applicant in the following terms:

Similarly, if this is not the sequence of events, the undersigned takes the view that a decision of the appointing authority to terminate his service must be regarded as being no longer based on the present request and, accordingly, must be declared null and void or revoked, on application submitted by him when the outcome of the complaint is known.’

11. On 27 June 1973, the Commission decided to terminate the applicant's service with effect from the following 1 July.

12. This decision was communicated to the applicant by letter of 9 July 1973 in which the Commission, after acknowledging the request submitted by the applicant, informed him that it had decided to consider and accept it.

13. On 8 October 1973 the applicant lodged a complaint under Article 90 (2) of the Staff Regulations against the decision taken.

14. No reply was received to this complaint either.

15. Having received no reply to his complaint of 18 June 1973, the applicant, by application of 15 January 1974, initiated proceedings in Case 4/74.

16. Similarly, when his complaint of 8 October 1973 also remained unanswered, the applicant, by application of 8 May 1974, initiated the proceedings in Case 30/74.

Application 4/74 (decision of transfer)

17. By an application on a procedural issue submitted under Article 91 of the Rules of Procedure, the Commission asked the Court to rule on the admissibility of Application 4/74.

18. By order of 9 July 1974 the Court decided to reserve its decision on the preliminary objection for the final judgment.

19. In support of its objection, the Commission emphasized the fact that at the date when the application was lodged, 15 January 1974, the applicant was, as a result of the decision of 27 June 1973 terminating his service, no longer an official of the Community, and that he therefore no longer had a legal interest in asking for an administrative situation which no longer existed to be changed.

20. The explanations supplied by the applicant during the proceedings have enabled him to establish a valid interest in obtaining a review of the correctness or otherwise of the decision to transfer him, notwithstanding the decision to terminate his service, a fortiori since he is challenging the latter decision.

21. The objection as to admissibility raised by the Commission must, accordingly, be set aside and consideration given to the substance.

22. Under the ‘programme of work’ for implementation of the reorganization of agriculture, which made particularly heavy demands on the Community administration, the Commission had set up a specific organization and distributed among named individuals the tasks allotted to each of the departments and officials concerned in the Directorate-General for Agriculture.

23. Within Directorate E, which was responsible for questions concerning agricultural structures and environment, the plan made the Head of Division VI/E/1 specifically responsible for laying down the general guidelines for certain parts of the work done by other divisions in the directorate.

24. When, in March 1969, the applicant actually commenced work as Head of Division VI/E/3 he refused to accept what he regarded as ‘subordinate’ status to the head of the first-mentioned division and he persisted in this attitude.

25. During the four years in which he was Head of Division VI/E/3, the service relationship between the applicant and the Head of Division VI/E/1 became more and more strained and was marked by protests by the applicant in increasingly vehement and personal terms.

26. The provisions of the ‘programme of work’, to which the applicant objected, form part of measures which the Community authority was entitled to take in the interests of the internal organization of its departments.

27. More particularly, no provision in the Staff Regulations prevents a head of division, in the interests of the service and for the purpose of coordinating certain activities, from being, under the authority of his immediate superior, made answerable to the head of another division.

28. Far from being an indication of ill will towards the applicant, the decision to transfer him, taken with full regard to his rank and pecuniary rights, was a legitimate method adopted by the Commission to put an end to a situation which was inimical to the smooth working of its departments as well as to the personal interests of all concerned.

29. The decision was, therefore, based on sound reasons and, in consequence, inflicted on the applicant no damage calling for compensation on the part of the Community.

30. It follows that Application 4/74 must be dismissed.

Application 30/74 (termination of service)

31. The Commission has raised objections as to the admissibility of certain heads of claim in the application initiating proceedings in Case 30/74 on the ground that they really applied to Application 4/74.

32. These objections are valid and it is, therefore, necessary to exclude from Application 30/74 all considerations arising from the dispute concerning the decision to transfer the applicant, on which the Court has already arrived at the decision given above.

33. With the removal of those considerations, it is clear that the essential subject-matter of Application 30/74 is the objection raised as to the legality of the decision of 27 June 1973 terminating the applicant's service and a concomitant request for the award of compensation for material and non-material damage.

34. In the applicant's view, the decision to terminate his service was an improper one because the Commission paid no regard to the conditional nature of the request which he submitted.

35. He further takes the view that the decision is merely the outcome of the difficulties which he had previously experienced in his relations with the departments of the Commission and is, therefore, a ‘disguised punishment’ for his previous attitude.

36. The legality of the decision to terminate his service must be appraised in the light of Regulation No 2530/72, on the basis of which it was taken.

37. Under Article 2 (1) of the regulation, the institutions of the Communities were authorized, until 30 June 1974, to adopt, in the interests of the service, measures terminating the service of officials in certain grades.

38. Under Article 2 (2) a list of the officials to be affected by such measures was drawn up by the institutions concerned after taking into account the officials' age, ability, efficiency, conduct in the service, family circumstances and seniority.

39. The first subparagraph of Article 2 (3) reads: ‘If the interests of the service permit, the institution shall take into account the requests of officials that their service be terminated under paragraph (1)’.

40. It is clear from these provisions, taken as a whole, that the departmental reorganization provided for under Regulation No 2530/72 took place as a matter of course, on the initiative of the institutions concerned and on the basis of certain considerations which they had to take into account, the only effect of a request from those concerned being to ensure that they had priority subject, however, to the interests of the service.

41. As the applicant had lodged such a request the Commission was entitled to take note of his wishes without having to take into account conditions expressed in vague terms and referring to matters which in any case were irrelevant to the considerations contained in Regulation No 2530/72.

42. In fact these conditions could have had no other purpose than to induce the Commission to resolve an old dispute in favour of the applicant.

43. Far from representing a disguised punishment the decision must be taken as the Commission's expression of a desire to find an honourable way out of the situation for an official whose services and devotion to duty it repeatedly recognized, even in the letter terminating his service.

44. This assessment of the situation is, moreover, consistent with Article 2 (4) of Regulation No 2530/72, which declares that the reorganization measures provided for ‘are in ho way disciplinary’.

45. The Commission cannot, therefore, be criticized if, after eliminating all irrelevant considerations and noting the wish expressed by the applicant, it took the decision to terminate his service.

46. As the financial consequences of termination of service are laid down in clear and sufficient terms by Regulation No 2530/72, the subsidiary claim for damages is without foundation.

47. On those grounds, Application 30/74 must be dismissed.

Costs

48. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party must bear the costs.

49. The applicant has failed in his submissions in both actions.

50. Nevertheless, under Article 70 of the Rules of Procedure, in proceedings brought by servants of the Communities, institutions shall bear their own costs.

On those grounds, THE COURT (Second Chamber) hereby:

1 Dismisses Applications 4/74 and 30/74;

2 Orders each party to bear its own costs.

1 Translator's note: The words par priorité, which appear in the French text of this article, do not occur in the English version.