JUDGMENT OF 9. 7. 1981 — JOINED CASES 59 AND 129/80 TURNER ν COMMISSION

In Joined Cases 59 and 129/80

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and A. Chloros, Judges, Advocate General: S. Rozès Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the conclusions, submissions and arguments of the parties may be summarized as follows :

I — Summary of the facts

By a contract dated 22 December 1965 Mariette Krecké, a medical practitioner specializing in internal medicine and cardiology, was engaged by the Commission of the European Atomic Energy Community as a temporary servant for a period of two years from 1 April 1966. She was graded in Grade A 6 and assigned to Brussels with the Hygiene and Atomic Medicine Division of the Directorate of Health Protection, a part of the Directorate-General for Social Affairs.

Dr Krecké, who had since asumed the name Turner by marriage, was appointed as a probationary official on 1 February 1968 and established in her post by a decision of the Commission of the European Communities of 31 July 1968.

By a Commission decision of 22 July 1970 Dr Turner was appointed to a post of principal administrator in Grade A 5 in the medical branch attached to the Directorate-General for Personnel and Administration.

According to the detailed list of posts, the medical branch of the Commission, which was headed by Dr Semiller, for whom Dr Turner acted as deputy, at that time comprised a department of industrial medicine, a department of preventive medicine and a department of insurance and supervisory medicine.

Dr Turner was in charge of one of five sections in the department of preventive medicine and, more particularly, she was responsible for medical examinations of newly recruited officials, medical checkups, the examination of reports on check-ups carried out by doctors of officials' own choice, prior authorizations for special examinations, vaccinations, the sick bay, particularly care and treatment and physiotherapy, medical supervision of the crèche and consultations on request.

By decision of the Commission of 7 April 1978 Dr Turner was promoted to Grade A 4 from 1 January 1978 without any change of post.

On 12 April 1978 Dr Turner was given the further duty of passing opinions on diets proposed by patients' own doctors.

On 12 July 1978 the Commission decided upon a reorganization of the medical branch in Brussels, which basically consisted in the creation of two medical branches, one for “decentralized” staff (mainly consisting of the staff at the Joint Research Centres at Geel, Karlsruhe and Petten, teachers at the European Schools at Karlsruhe, Petten and Geel-Mol, the staff of press and information offices within the Community and of offices of the Commission situated in non-member countries and of the European Agency for Trade Cooperation with Develop-ping Countries), and the other for “centralized” staff in Brussels (consisting of Commission staff, including trainees and applicants invited to attend competitions, the staff of the Economic and Social Committee, teachers at the European School in Brussels and the crèche staff).

Dr Semiller, who had been head of the whole medical branch until that time, was put in charge of the medical branch for decentralized staff and Dr Siddons was put in charge of the medical branch for Brussels staff. Both of them came directly under the Director General of Directorate-General IX (Personnel and Administration).

The responsible Member of the Commission was given the task of taking the necessary decisions concerning the assignment to the two medical branches of the other officials forming part of the Commission's medical branch.

On 18 July 1978 Dr Turner informed the President of the Medical Board, a consultative body comprising the doctors of all the Community institutions, that she was resigning as secretary and member of that board on account of “recent events which reveal a complete disregard of the rules of medical ethics and loyalty to colleagues”.

Following several conversations which Dr Turner had with Dr Siddons and a meeting on 12 March 1979 with the Director-General for Personnel and Administration of the Commission, by a letter of 14 March 1979 the Director-General confirmed to Dr Turner that as part of the reorganization of the medical branch he intended to make her responsible for the field of social medicine. That letter stated that her major duties at the Brussels medical branch headed by Dr Siddons would in future be the following:

a) Social medicine

The Development of social medicine at the Commission — Psychological and psychiatric problems and other medico-social problems;

The drawing up and implementation of a programme to combat alcoholism at the Commission;

Liaison with the Welfare Division.

b) Other medical duties (as far as the programme of social medicine permits)

Medical check-ups;

Invalidity Committee;

The monitoring of medical check-ups carried out outside the institutions (final paragraph of Article 59 of the Staff Regulations) and the giving of opinions on requests for additional examinations;

Medical supervision of the staff of the Economic and Social Committee;

Other duties as and when the needs of the service require.

c) Administrative duties

Assisting in the administrative work of the branch.

The Director-General stated that he hoped Dr Turner would be able to agree to that posting; if not he would be obliged to propose an alternative solution to the Commission as regards the organization of the medical branch which would mean that Dr Turner would be assigned to a post outside Directorate-General IX.

On 21 March 1979 Dr Turner told the Director-General for Personnel and Administration that she could not agree to the proposal to change her duties in the medical branch.

According to Dr Turner, the reorganization of the branch had still not been decided upon or even approved by the Commission, the group charged with drawing up a plan for the reorganization and operation of the branch not having yet completed its work. In those circumstances any decision purporting to give her new duties would be premature to say the least and, in any event, had no genuine justification. Moreover the duties planned for her came within the province of a psychologist or a psychiatrist and did not correspond to her own specialized field; the task of drawing up and implementing a programme to contend with alcoholism was more a matter for a preliminary definition of a policy by the Commission than the responsibility of a medical practitioner.

On 11 April 1979 Dr Turner informed the Director-General for Administration and Personnel that she had not changed her mind and by a letter of 4 May 1979 he told her that on 12 July 1978 the Commission had taken a decision concerning the reorganization of the medical branch. He further informed her that several measures pertaining to the internal administration of the medical branch for Brussels staff had been adopted; the reorganization would be followed by the creation of a medico-social unit which he had proposed she should run, amongst other medical duties; that proposal was the final part of the reorganization decided upon; the duties which she would be given under the title “Social medicine” concerned not only psychological and psychiatric problems but also other medico-social problems and she had the abilities necessary for the performance of those duties.

Dr Turner was accordingly asked to take up from 10 May 1979 the duties described in the letter of 14 March.

On 10 May 1979 Dr Turner drew the Director-General's attention to the fact that the Commission's decision of 12 July 1978 did not refer to the creation of a “medico-social” unit or even less to her assignment to the headship of that unit; that being so, and since no decision had been taken by the competent authority on the basis of a detailed list of posts setting out the operation and respective responsibilities of the two newly-established medical branches, she could but conclude that the proposal to assign her to the headship of a socio-medical unit had no legal basis.

On 14 May 1979 the Director-General explained to Dr Turner that the letter which he had sent to her on 4 May was a formal instruction from him that she should begin her new duties with the Brussels medical branch as from 10 May 1979.

By a letter of 18 May 1979 Dr Siddons, the head of the medical branch for Brussels staff, confirmed to Dr Turner that, pursuant to the formal instructions which she had received on 4 and 14 May 1979, her duties after 28 May 1979 would be those described in the Director-General's letter of 14 March but that they would also include the responsibility for medical check-ups on staff employed in the crèche. He asked Dr Turner to send him proposals as soon as possible for putting the planned programme in the medico-social field into effect.

By a decision of 8 June 1979 the Member of the Commission responsible for personnel and administration decided that in the interests of the service Dr Turner would be assigned from 11 July 1978 to the specialized unit called the Brussels medical branch for Brussels staff by way of change from her previous posting to the medical division.

On 3 July 1979 Dr Turner lodged a complaint under Article 90 (2) of the Staff Regulations against the decision of the Director-General for Personnel and Administration of 4 May 1979.

In her complaint she contended that she had been put in charge of a unit described as “medico-social” entailing duties which, besides being subject to the instructions of another medical practitioner in the same grade as herself, were ill-defined and bore hardly any relation to her own specialized field.

She claimed inter alia that the Director-General for Personnel and Administration had no power to adopt the disputed decision, that the Commission had not approved it, that the Director-General had abused his powers by imposing duties involving medical responsibilities, that the posting was retroactive in nature, and that it was unlawful to make her subordinate to Dr Siddons, an official in the same grade.

She alleged that her new duties had been decided upon without any genuine prioi consultation, that they had been imposed after repeated threats and with no indication of a valid reason, which is incompatible with the rules of medical ethics; they infringed the freedom and independence of operation of the medical branch, had been notified to the staff during her absence from the branch and in disregard of the existing detailed list of posts, did not correspond to hei specialized field, were excessively vague and did not relate to any genuinely existing situation.

Besides entailing a significant reduction in the duties normally carried out by an established medical officer under the previous list of posts and benefiting visiting doctors, her change of posting had all the features of a disguised disciplinary measure and, moreover, thai was how it was seen in the medical branch.

The medico-social field was not defined in relation to either the duties of the other doctors in the branch or to its work; it was not based on any express provision of the Staff Regulations.

In the circumstances in which it was decided upon her new posting caused her injury, was unlawful and was not ir the interests of. either the service or the public at large.

By letters of 16 August, 26 October anc 5 December 1979 Dr Siddons remindec Dr Turner that she had still not made any proposals for the development oi social medicine or for a programme tc contend with alcoholism; she had, moreover, carried out only very few medical check-ups.

On 5 October 1979 Dr Turner confirmed to the Director-General for Personnel and Administration the reasons which had induced her to adopt the position of principle which she was maintaining in this case, both as an official and a doctor.

On 6 November 1979 Dr Turner sent a memorandum to the Commission in which she stated inter alia the reasons for which the restructuring of the medical branch, as decided upon by the Commission, could in her opinion only accentuate existing problems and deficiencies.

In reply to her complaint of 3 July 1979 the Commission informed Dr Turner by a letter of 13 December 1979 that it could not accept the complaint.

It stated that a decision to reorganize the medical branch had been adopted by the Commission on 12 July 1978. The fact that the express decision concerning Dr Turner's posting was not adopted until 8 June 1979 was attributable to the fact that it did not appear to be necessary at first to adopt express decisions on the postings of officials assigned to the medical branch for Brussels staff. The measures defining practical duties were adopted in the interests of the service by the Director-General for Personnel and Administration, lawfully exercising his powers with regard to an official assigned to a branch under his direct responsibility. After a sufficiently long period of operation a report was submitted to the Commission on the operation of the two medical branches set up in July 1978. The alleged failure to notify the applicant and the failure to obtain the Commission's approval could not in any event call in question the measures to reorganize the medical branch adopted by the Commission in July 1978 and immediately put into application.

The assignment of new duties involving medical responsibilities on no account represented an abuse of power by the Director-General for Personnel and Administration: it was Dr Siddons who submitted the first proposals to Dr Turner and the notification of her new duties, given in a letter of 14 March 1979, was part of the normal exercise of the powers of the Director-General for Personnel and Administration who had direct responsibility for the administrative unit to which Dr Turner belonged.

Her new duties were in the field of preventive and social medicine and involved in particular the examination of individual cases presenting both medical and social problems. The experience which she had gained in the medical branch at Brussels was in that respect an important factor as regards her ability to perform the duties proposed to her.

As to the allegation that her subordination to Dr Siddons was unlawful, it should be noted that Dr Siddons was expressly put in charge of the medical branch for Brussels staff and as such had authority over all staff assigned to that administrative unit.

The allegation that she was not consulted beforehand was not borne out by the facts. Dr Turner's new duties were not such as to impair the freedom and independence of operation of the medical branch in any respect. The date on which the decision of 8 June 1979 took effect could not have been before 12 July 1978 and the technical error responsible for its being expressed as 11 July was inconsequential and could not therefore constitute a material ground on which to base the complaint.

When the matter was put before him by Dr Siddons, the Director-General for Personnel and Administration wrote a letter to Dr Turner on 19 December 1979, drawing her attention to the urgent nature of the proposals which she was to submit on the development of social medicine and the campaign against alcoholism at the Commission. Those proposals were to be submitted by 10 January 1980 at the latest.

On 21 December 1979 Dr Turner told the Director General that with the best will in the world she found it impossible to make a useful and effective contribution in the field of medicine described as “social”; owing to her specialization she had no particular skills in that field and no one had yet told her what it actually consisted of in strictly medical terms.

On 21 December 1979 Dr Turner explained to the competent member of the Commission the reasons for which she felt it was necessary to go beyond the individual case and reconsider the administration of the medical branch as a whole. On 7 January 1980 she again told the Director-General for Personnel and Administration that the failure to define the duties assigned tó her in any degree whatsoever was clearly attributable to the fact that they did not entail any genuine responsibilities. On 17 January 1980 she was then informed by the Director-General that, since she had not complied with the requests to submit to him proposals on the development of the medico-social field and in order not to delay the implementation of the essential measures in that field, he was about to propose to the competent member of the Commission that in the interests of the service she should be assigned to another post corresponding to her training and experience.

On 8 February 1980 the Director-General for Personnel and Administration informed Dr Turner that he had proposed to assign her either to Directorate-General V (Employment and Social Affairs) to do social security work or to Directorate-General XII (Research, Science and Education) to do medical research.

After talks with the Director of the Biology and Radiation Protection Programme and with the head of a specialized department of the Directorate-General for Employment and Social Affairs on 26 February 1980 Dr Turner informed the Director-General that the duties envisaged in the transfers proposed bore no relation to the practice of medicine, internal medicine, cardiology or industrial medicine and that the two posts in question had no well-defined duties.

During a hearing before the Director-General for Personnel and Administration on 6 May 1980 Dr Turner was told that the competent directorate-general considered that she possessed the necessary qualifications for a post in the field of medical research which had been advertised in Vacancy Notice No COM/229/80 and for which no application had been received and he would recommend to the competent member of the Commission that she should be transferred to that post.

By a decision of 20 May 1980 the Member of the Commission responsible for personnel and administration decided to transfer Dr Turner to the post of principal administrator with the Secretariat of the Director-General for Research, Science and Education in Brussels as from 1 June 1980.

According to Vacancy Notice No COM/229/80 Dr Turner's duties consisted in participating in the organization of the work of the Committee on Medical Research and Public Health — CRM/CREST — and of its permanent working parties, in interdepartmental liaison to coordinate the Commission's work touching on health and in undertaking a constant comparison of national research and development programmes in that field.

The qualifications required for the post were a university education leading to the award of a degree or equivalent experience, knowledge of medicine and thorough experience relevant to the duties.

On 28 May 1980 Dr Turner sent the appointing authority a complaint under Article 90 of the Staff Regulations against the decision to transfer her. In her complaint she claimed that the contested measure should be annulled as being against the interests of the service and on the ground that, since it had the effect of preventing her from practising medicine, it was a disguised disciplinary measure.

Dr Turner's complaint was rejected by a Commission decision of 2 October 1980.

II — Written procedure

On 21 February 1980 Dr Turner made an application to the Court against the decisions of the Director-General of Personnel and Administration of 4 May 1979 and of the Commission of 8 June 1979 assigning her to a new post. That application was registered at the Court under Number 59/80.

On 29 May 1980 Dr Turner made a second application against the Commission decision of 20 May 1980 imposing a compulsory transfer. That application was registered under Number 129/80.

In Case 129/80 Dr Turner also made an application for a stay of execution of the contested decision in accordance with Article 91 (4) of the Staff Regulations and Article 83 of the Rules of Procedure. That application was dismissed by order of the President of the Second Chamber on 2 July 1980 [1980] ECR 2135. Costs were reserved.

The written procedure followed the normal course in both cases subject to the fact that in accordance with Article 91 (4) of the Staff Regulations the proceedings in Case 129/80 were suspended until a decision rejecting the applicant's complaint was adopted.

By order of 3 March 1981 the Court (Second Chamber) decided with the consent of the parties to join Cases 59 and 129/80 for the purposes of the oral procedure and the judgment.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the court (Second Chamber) decided to ask the Commission to reply in writing to a number of questions before the opening of the oral procedure. That request was complied with within the time allowed.

By order of 9 April 1981 the Court (Second Chamber) decided to hear as a witness Dr Ornella Mancini, a visiting doctor at the Commission, and requested the applicant to appear in person at the hearing.

Ill — Conclusions of the parties

The applicant claims that the Court should:

1) In Case 59/80:

Declare that the application is inadmissible and well-founded;

Order the defendant to pay the costs;

2) In Case 129/80:

Declare the action admissible;

Annul the decision of the Commission of 23 May 1980;

Award the applicant by way of compensation for non-material damage a sum equivalent, provisionally and subject to subsequent adjustment, to two years' salary;

Order the defendant to pay the costs.

The Commission contends that the Court should:

1) In Case 59/80:

Dismiss the action as inadmissible and in any event as unfounded;

Order the applicant to pay the costs;

2) In Case 129/80:

Dismiss the action as unfounded;

Order the applicant to pay the costs.

IV — Submissions and arguments of the parties in the written procedure

A — Admissibility

The Commission believes that Application 59/80 made against, on the one hand, the letter of 4 May 1979 from the Director-General for Personnel and Administration and, on the other hand, the decision of 8 June 1979 of the Member of the Commission responsible for staff matters is inadmissible in both regards.

a) Contrary to the requirements of Article 91 (2) of the Staff Regulations the decision of 8 June 1979 was not the subject of a complaint before the application was made. The applicant's complaint of 3 July 1979 is directed against the letter of 4 May 1979, and, judging by its wording and content, certainly does not cover the decision of 8 June. The applicant's disagreement concerns the new duties assigned to her by the letter of 4 May and not her assignment by the decision of 8 June 1979 to the medical branch for Brussels staff.

b) Furthermore the complaint in the application is really that the Commission assigned to Dr Turner insufficiently defined duties which the Director-General for Personnel and Administration was not empowered to determine or even assign, and that it wished to be rid of the applicant. The application therefore contests only the procedure which led to Dr Turner's being given specific duties and the nature of those duties. However, the single, purely administrative purpose of the decision of 8 June 1979 was to reassign the applicant and her post to the medical branch for Brussels staff and did not deal with her duties in any way. In so far as the application seeks the annulment of the decision of 8 June 1979 it is inadmissible because, contrary to Article 38 (1) of the Rules of Procedure, it contains no statement of the grounds on which that decision is contested.

c) By a decision of the Commission of 20 May 1980 the applicant was transferred as from 1 June to a vacant post in the Directorate-General for Research, Science and Education; therefore the two decisions referred to in Application 59/80 ceased to have any effect on 31 May 1980. Since that date at any rate the applicant has no longer had an interest in seeking their annulment. According to the case-law of the Court when the contested measure ceases to have effect during the proceedings before the Court the action loses its purpose.

The applicant for her part believes that Application 59/80 is wholly admissible.

a) A reading of the complaint of 3 July 1979 clearly shows that it expressly and explicitly covers both the decision of 8 June and that of 4 May 1979. Furthermore both decisions are closely linked together, both adversely affect the applicant, have the same statement of the reasons on which they are based and pursue the same object. They may therefore legitimately be contested jointly in a single complaint. Furthermore, in his express decision of 13 December 1979 rejecting the complaint, the Commissioner responsible for staff matters understood the tenor of the complaint perfectly and rejected the applicant's arguments both in regard to the letter of 4 May 1979 and his own decision of 8 June.

b) The applicant's submissions concern both contested measures which have the same purpose and complement one another.

c) The final objection of inadmissibility raised by the Commission is irrelevant because the applicant has brought a second action before the Court and lodged an application for the adoption of interim measures against the decision imposing a compulsory transfer.

Β — The substance

The applicant's grounds for seeking the annulment of the three contested measures are infringement of Article 7 (1) of the Staff Regulations and misuse of power. A further ground on which Application 129/80 is based is the infringement of essential procedural requirements and breach of the administration's duty of care. The application for damages seeks compensation for the non-material damage suffered by the applicant.

The Commission considers that all the submissions put forward by the applicant are devoid of any foundation.

1. Infringement of Article 7 (1) of the Staff Regulations

The applicant contends that the contested measures cannot be justified in any way by the interests of the service, which, according to Article 7 (1) of the Staff Regulations, is the condition for the validity of an appointment or a transfer. The interests of the service have not been observed in this case from either the medical or administrative point of view.

a) The creation of a “medico-social” branch has no valid justification from the medical point of view. The Commission's medical branch is one providing an industrial medical service and is therefore by definiton engaged in preventive medicine; the purpose of preventive medicine is obviously social. The doctors employed in the medical branch are, by the nature of the services which they provide, practitioners of industrial medicine; since all medical work has a social aspect, all the doctors in the medical branch perform a medico-social function. The creation of a “medico-social” unit within the medical branch for Brussels staff- is absurd in itself or, at any rate, an outright misapprehension of the duties habitually performed by doctors working in the medical branch.

b) The decisions of 4 May and 8 June 1979 had the effect of depriving the applicant of a large number or her previous medical responsibilities, especially in the area of medical examinations on recruitment, and entailed a drastic reduction in her other duties; in return she was given ill-defined and, in view of her professional qualifications, undefinable duties.

c) From the administrative viewpoint, the decision to create a “medico-social” unit did not come within the powers of the Director-General for Personnel and Administration, nor did the allocation of medical duties within a medical branch and the assignment to the applicant of duties different from those which she had previously performed. The medical branch is not an administrative unit like any other branch. The work which is carried out there does not come within the organizational powers of the administration; doctors serving as officials should be subject to regulations different from those of other officials which would guarantee both their independence and their careers.

d) Even supposing that the Director-General for Personnel and Administration had the power to create a “medico-social” unit within the medical branch, such a decision could in any event only have been legitimately adopted after the Commission had been notified about the operation of the two medical branches created at Brussels as promised by its Member responsible for staff matters. That notification was however not received until November 1979 which was several months after the decision was taken to set up a “medico-social” unit and after the applicant had been assigned to her “new duties”.

e) The decision of 20 May 1980 imposing a compulsory transfer, which is the subject-matter of Application 129/80, is not in the interests either of the applicant's former branch, of the branch to which she was transferred, or of the applicant.

It had proved necessary to engage seven doctors from outside the institution in order to run the Brussels medical branch and it is therefore difficult to understand why the applicant was assigned to other duties. The Brussels medical branch has at present no more than one part-time visiting cardiologist whereas the applicant was formerly responsible for interpreting electro-cardiograms in the centralized medical branch as well as in the decentralized medical branch and she was the only specialist in internal medicine in the entire medical branch. Moreover problems had arisen over the custody of the applicant's medical files after the almost immediate implementation of the decision to transfer her compulsorily. A medical practitioner who belongs to the medical branch of an institution cannot be entirely subject to the power of the administration as regards the course of his career and, in particular, transfers outside the medical branch. The situation which has befallen the applicant is manifestly incompatible with the absolute necessity to guarantee the freedom and independence, both ethical and technical, of a practitioner of industrial medicine.

As a result of her transfer the applicant is no longer able to make available to the Commission her knowledge and many years of experience in internal medicine and cardiology; she has been restricted to administrative and executive duties inferior to her professional qualifications, which is not in the interests of the service to which she has been assigned. The work which she is asked to do is not that of a doctor but of a university graduate with medical knowledge; the training and professional experience of doctors working in the field of medical research are necessarily fundamentally different from those of the applicant. Clinical and scientific training must not be confused; apart from the applicant Directorate-General XII does not have any doctors who are clinicians. The contention that the absence of any vacant post in the medical branch for decentralized staff prevented the applicant from being transferred within that branch is belied by the fact that she was transferred out of the medical branch together with her post.

During the seven years of her basic studies, ten years of specialization and ten further years spent in the Commission's medical branch the applicant performed exclusively medical work. Even though employed as an “official” in an international organisation she was entitled to hope that her qualifications and experience would be taken into account in order to assign her to a suitable post and that they would not be deliberately ignored to such a degree that she would be given organizational and coordinating duties essentially administrative in nature. The applicant always wished to practise medicine; she entered the service of the Commission in an administrator's post because it was impossible for her at the time to establish herself as a doctor in Belgium and it was a purely temporary arrangement. The post to which she has been transferred relates only to duties which are insufficiently specified and which are not in accordance with her abilities. In particular, only “medical knowledge” is required on the part of the occupant of the post, which reveals the inappropriateness of the post in question to the applicant's abilities. The Commission believes that the three contested decisions are in the interests of the service and furthermore that they have assigned to the applicant a post which corresponds to her abilities and training.

a) The fact that all medical work may entail a social aspect certainly does not mean that the creation within the medical branch of a medico-social unit must be considered as “absurd”. On the contrary, the magnitude of some predominantly social problems is capable, as in this case, of justifying the creation of such a unit.

b) It is apparent from the letters from the Director-General for Personnel and Administration of 14 March and 4 May 1979 that, contrary to what the applicant alleges, the medical duties assigned to her were clearly defined and equal in importance to those which she previously performed, if not more important. The elaboration of a genuine policy of social medicine is far from being nonsense; on the contrary it is an important task which was initially assigned to the applicant, who failed to appreciate its scope. Despite numerous reminders, between May 1979 and May 1980 the applicant failed to submit proposals for the implementation of the programme of social medicine which was her main task and for several months she did not carry out any medical check-ups, which was also one of her tasks, so it is hardly appropriate for the applicant to speak of a reduction of her medical work.

c) The applicant has not demonstrated in any respect why it is not for the administration to allocate duties entrusted to officials assigned to the medical branch. From the point of view of its organization the medical branch is no different from other Commission departments. As it comes under the authority of the Director-General for Personnel and Administration it is for him to assign specific duties to its officials after consultation with the doctor in charge of the branch. As for the “medical claims” mentioned by the applicant, they relate to special rules for doctors serving as officials but such claims have never been acceded to by the Commission. The creation of a medico-social unit within the medical branch represents no more than an organizational measure internal to the branch which was intended to put into practice one of the guidelines laid down by the Member of the Commission responsible for staff matters. The measure was certainly within the powers of the official in charge of the Directorate-General for Personnel and Administration to which the medical branch is attached.

d) The purpose of the communication of 7 November 1979 from the Member of the Commission responsible for staff matters was simply to report to the Commission and not to submit proposals concerning the medical branch. It was in no respect a prior condition for a new allocation of duties in that branch

e) The applicant's further arguments concerning the decision of 20 May 1980 imposing a compulsory transfer are not convincing either.

The applicant's departure did not impair the operation of the medical branch; the duties which she had previously undertaken were taken over by her colleagues and it was possible for her records to be handed over to the head of the branch on 4 June 1980 without any particular difficulty and with due regard to the interests of the patients. The considerations relating to the ethical and technical independence of a practitioner of industrial medicine must not overshadow the fact that the applicant is an official of the Commission in an administrative grade and that in that capacity she is subject to the Staff Regulations which give the administration the right in particular to transfer any official in the interests of the service.

The applicant's new work consists inter alia in participating in the organization of the work of the Committee on Medical Research and Public Health and of its permanent working parties, interdepartmental liaison to coordinate the Commission's work touching on health, undertaking a constant comparison of national research programmes in this field and coordinating the work of more than 80 committees in the Commission dealing with health problems. The applicant performs her duties under the Biology, Radiation Protection and Medical Research Programme to which two other doctors on a full time basis and two on a part-time basis have now been assigned. It cannot be argued that the duties assigned to the applicant are not sufficiently defined and cannot be performed by a doctor. The fact that the applicant had previously gained clinical experience certainly does not mean that she cannot satisfactorily perform the duties which she has now been given, especially since she has performed duties of an administrative nature in the past. There is no provision in the Staff Regulations to the effect that duties involving the practice of medicine are on a higher level than those performed by a doctor working in the field of medical research and the organization thereof and it is not denied that the duties assigned to Dr Turner are at a level corresponding to a post in career bracket A 5/A 4. The applicant has been transferred to a vacant post and not reassigned together with post; therefore, she could not have been assigned within the medical branch for decentralized staff as there was no vacant post in that branch.

The argument that it is not in the applicant's interests to be transferred to a post not involving the exercise of medicine is a surprising one considering that it relates to the submission that the interests of the service have been disregarded. It is not the administration's duty to try to keep an official in a specific post, to the detriment of the interests of the service, in order to enable that official to revert to his professional career outside the insitution at a later date. It should be remembered that at the outset the applicant carried out administrative duties corresponding to her qualifications and the position is no different now.

f) Generally, the applicant does not demonstrate how the contested decision fails to take account of the interests of the service. According to the case-law of the Court the authority alone is responsible for the organization of departments which it must be able to determine and modify according to the exigencies of the service, subject however to the necessity to respect the rights which servants enjoy under the Staff Regulations and which they may ask the Court to enforce. However, except for the submission that there has been a misuse of power, the applicant does not argue that the contested decisions infringe the rights guaranteed to her by the Staff Regulations; therefore she cannot legitimately call in question a decision to carry out an internal reorganization under which she is given new duties.

2. Misuse of power

The applicant argues that, even supposing that the contested decisions could have been based on the interests of the service, the fact still remains that their main, indeed their sole, purpose was to cause her harm.

a) The administration sought, through the application of the decision which it had taken to reorganize the medical branch at Brussels, to exclude the applicant from her medical work connected with staff recruitment by giving her responsibility for a unit improperly entitled “medico-social” which did not actually entail any independent medical work suitable to be undertaken by a doctor serving as an official.

b) She had received some criticism at one time about the medical examinations to which she subjected new officials upon their recruitment. That situation had not pleased the Directorate-General for Personnel and Administration. The purpose of inventing a “medico-social” unit when there was no real need for it was simply to remove the applicant from certain medical responsibilities.

c) The compulsory transfer was really a disciplinary measure taken against her. As a practising doctor anxious to remain so she was deprived of the right to practise medicine; such a disciplinary measure, which is the most serious which a professional body can impose on one of its members, is a matter for the disciplinary authorities in her profession alone and not for the administative authorities, even in the case of a doctor serving as an official.

d) The Commission could have transferred the applicant to the medical branch for decentralized staff where she could have continued to practise medicine. Moreover, the Brussels medical branch did other work in which the applicant and her specialist knowledge could have been put to better use. The Commission acted out of the conscious and persistent desire to remove the applicant from her medical responsibilities and sought to conceal its true intention by artificially invoking the interests of the service.

e) The applicant was transferred to Directorate-General XII with her post and she was not replaced either in the work which she had done in the medical branch or in her new work.

The description of duties contained in Vacancy Notice No COM/947/80 for the recruitment of a new medical officer to the medical branch for Brussels staff made no reference to the medico-social work which the Commission had claimed could not be delayed any longer. Moreover, the qualifications required for the post were a university education in medicine leading to a degree in medicine. Yet when she was transferred to Directorate-General XII the applicant was not transferred to a doctor's post but to a post for a university graduate having some knowledge of medicine which was moreover attached to the Director-General's secretariat in Brussels.

It is therefore quite clear that the Commission's purpose in compulsorily transferring the applicant was not to meet the requirements of the service, which in this case entailed the performance in the medico-social field without delay of indispensable work, but sprang from the obvious intention to remove the applicant from the medical branch.

The Commission recalls that under the case-law of the Court proof of misuse of power is subject to the existence of objective, relevant and concordant evidence demonstrating that the contested decision was taken for purposes other than those indicated; the applicant, however, has not adduced any evidence indicating that there has been any misuse of power.

a) Besides the development of a programme of social medicine, the duties assigned to the applicant in the medico-social branch were to carry out medical check-ups, to participate in the work of the Invalidity Committee, to monitor medical check-ups undertaken outside the institutions, to give opinions on requests for supplementary examinations, to be responsible for medical surveillance of the staff of the Economic and Social Committee and to participate in the administrative work of the branch; those responsibilities cannot be described as “aberrant and conferring no benefit on the patient”. The submission that there has been a misuse of power therefore concerns only some of the applicant's duties; therefore it cannot be contended that the main, if not the sole, purpose of the contested duties assigned to the applicant was to cause her harm.

b) The applicant was certainly not deprived of the greater part of her professional work; since she had been given new duties, some tasks, such as carrying out medical examinations on recruitment, were, in the ordinary course of things, taken from her. That single fact does not justify her in contending that the purpose of the contested decision was to remove her from those duties. Furthermore, it should be remembered that, save for the limits imposed by Articles 5 and 7 of the Staff Regulations, an official has no right to keep any specific duties.

c) The case-law of the Court recognizes the freedom of the Community institutions to organize their internal work in the best interests of the service. Therefore it is not incumbent on the applicant, in an action for annulment, to embark upon an examination of the merits of the proposals concerning social medicine or the extent of their usefulness. The Commission, for its part, considered it to be desirable to develop social medicine in a way which would both be of assistance to the officials concerned and help to make its departments work better.

d) The authority's responsibility as regards the organization of its departments extends to all officials, including the members of the medical branch. The principle of medical independence has not been breached by the administration's assigning certain duties to the applicant, on the proposal of the doctor in charge of the branch, without intervening in their performance from the medical point of view. The principle of “medical independence” cannot permit the applicant to make her own judgment on the expediency of carrying out the work which she is given, otherwise the fundamental principles of the public service may be disregarded and the implementation of a policy of social medicine justified by the interests of the service delayed.

e) The decision of 20 May 1980 imposing a compulsory transfer on the applicant was in the interests of the service; therefore it cannot be stigmatized as a misuse of power.

f) As there was no vacant post in the medical branch for decentralized staff, the applicant could not be transferred within that branch; as for the duties connected with cardiology work, at the medical branch for Brussels staff they are assigned to a doctor engaged on a part-time basis, whose work is satisfactory and there has been no reason to discharge that doctor from those duties.

g) By giving the applicant new duties not involving the practice of medicine the Commission obviously did not prohibit the applicant from practising her profession but merely exercised its power to reorganize its departments. In the course of his career an official may be required to perform different duties and when moving from one set of duties to another he has no justification for considering his interests to have been adversely affected.

h) The medico-social work is at the present carried out by the head of the medical branch pending an appointment's being made to the post to which Vacancy Notice No COM/947/80 relates. Then it will be possible to make a final allocation of duties between the head of the medical branch and the doctor who is to assist him.

3. Infringement of essential procedural requirements

The applicant claims that the decision of 20 May 1980 to transfer her compulsorily was based on incorrect reasons in so far as it states that the applicant did not adapt herself to the new duties which she had been given in the medical branch under the decisions of 4 May and 8 June 1979 assigning her to a new post.

The circumstances in which those “new duties” were assigned to her, the fact that she found it impossible to ascertain the exact nature of her new responsibilities and the withdrawal of the greater part of her medical work likely to entail medico-social case-work did not enable the applicant to accept those new duties without causing herself insurmountable difficulties.

Moreover, the alleged “ failure to adapt herself” was contested by the applicant in her first application and the Commission is not entitled to base the decision imposing a compulsory transfer on that ground as its soundness has not yet been ascertained by the Court.

The Commission observes that the reasons on which the decision is based are not only the failure of the applicant to adapt herself to her duties in the medical branch but also the finding that she possessed the qualifications required by Vacancy Notice No COM/229/80.

The fact that the applicant denies that she failed to adapt herself to her new duties is not sufficient to disprove that she did not.

The assessment of an official's abilities is a matter for the administration and any assessment at which it arrives should be considered accurate unless and until the Court declares it to be based on manifest factual error. To decide otherwise would amount to making the administration's power to assign an official, which presupposes an assessment of his abilities, subject to the permission of the Court. The administration has the privilege, however, of being able to take action on its own initiative which, since its task is to serve the public interest, enables it to act by enforceable decisions.

4. Disregard of the duty of care

The applicant claims that the duty of care, embodying the general principle of good management and sound administration, has been breached in various respects in this case.

a) When she had an interview with the Director-General for Personnel and Administration on 6 May 1980 before she was transferred the applicant was not advised of the purpose of the meeting to which she was summoned; that behaviour on the part of the administration was improper not to say damaging.

b) The applicant was made to accept under duress duties in the medical branch devoid of any clear definition and ostensibly “medico-social” in nature. She was then assigned to a post in which she could no longer use her professional qualifications and experience.

c) The fact that the applicant's views were heard and it was insisted that she accept the duties planned for her reflects a deliberate and conscious desire to remove her from her work in the medical branch.

d) To transfer the applicant compulsorily in questionable circumstances and stop her from practising medicine, to the advantage of visiting doctors who are employed under temporary contracts and have no protection at all under the Staff Regulations, is contrary to good management. The staff Regulations give officials the right to occupy a post involving duties corresponding to the qualifications of the person concerned.

The Commission believes that the substance of the concept of “duty of care”, which has been recognized by the Court, should be determined in each individual case; it may not be used indiscriminately in support of no matter what kind of argument and in the absence of a sounder legal foundation.

a) There is nothing to indicate that the concept of the duty of care requires the administration to inform an official who is summoned to an interview that it concerns his possible transfer. The applicant does not mention any factor capable of demonstrating that any failure to indicate the purpose of the meeting of 6 May 1980 might have caused her some kind of harm. The applicant may not in any event argue that the purpose of that interview came in any way as a surprise to her and it is not denied that she was given the opportunity of putting her case at her leisure.

b) So long as the transfer in question was in the interests of the service and those of the applicant the duty of care cannot have been disregarded.

5. The application for damages

The applicant believes that by depriving her of the opportunity to practise the art of healing in the exercise of her new duties the Commission has acted in a manner which is injurious to her. The Commission has cast a slur on her professional abilities and injured her reputation. Since, in medical circles, the decision taken against the applicant appears to be an undisguised disciplinary measure, it might also reflect on the reputation, ability and integrity of her husband who is also a doctor in Brussels.

The applicant regularly receives inquiries from her former patients and from her colleagues outside the Commission who are concerned to know why she has been deprived of the right to pursue her work as a doctor in the medical branch. Apart from giving rise to concern the position is regarded as incomprehensible.

The decision to transfer the applicant compulsorily is illegal; it caused her serious and clear non-material damage and it is proper that she should be granted compensation. She is entitled by way of non-material damages to a sum equivalent to two years' salary; those damages cover the period in which she incessantly suffered the Commission's hostility which manifested itself first in a new posting and then in a compulsory transfer against which she was obliged to take action in order to preserve her interests and rights.

The Commission considers that the submissions made in support of the application for the annulment of the decision imposing the transfer have no foundation and in the absence of any fault on the part of the administration the application for damages can only be dismissed.

Furthermore, the immoderate nature of the adjectives used by the applicant hardly conceals the lack of substance in her allegations.

The fact that the applicant has been given duties corresponding to her skills, grade and post, even though not involving the practice of medicine, cannot damage her reputation or be of any injury to her; a fortiori that decision can have no effect on the applicant's husband who has nothing to do with the dispute.

V — Oral procedure

At the sitting on 21 May 1981 oral argument and replies to the questions put by the Court (Second Chamber) were submitted on behalf of the applicant, represented by Mr Vandersanden, and the Commission, represented by Mr Delahousse and Mr Jacob.

On the same date and before the sitting began the Court heard the evidence of Dr Ornella Mancini on the measures taken to organize a medico-social unit within the Commission's medical branch and then, for information purposes, that of Dr Siddons, head of the medical branch for Brussels staff, on, more specifically, the particular features of the medico-social unit, Vacancy Notice No COM/947/80 and the applicant's view of examinations on recruitment.

The Advocate General delivered her opinion at the sitting on 2 July 1981.

Decision

1. By two separate applications lodged at the Court Registry on 21 February and 29 May 1980, the applicant, Dr Mariette Turner, née Krecké, a medical practitioner and an official of the Commission of the European Communities in Grade A 4, brought actions for the annulment of, first, the decision of the Director-General for Personnel and Administration of 4 May 1979 assigning new duties to the applicant as part of the reorganization of the Commission's medical branch in Brussels and the Commission's decision of 8 June 1978 reassigning the applicant to the medical branch for Brusseles staff and, secondly, of the Commission's decision of 20 May 1980 compulsorily transferring the applicant to a post coming under Directorate-General XII (Research, Science and Education). In addition the second application includes a claim for damages, provisionally estimated at two years's salary, as compensation for the injury which the applicant believes she has suffered as a result of the change in her duties.

2. The applicant received her medical training at the University of Strasbourg, specializing in internal medicine and cardiology. She left university with the grade of assistant head of clinic at Medical Clinic A of the Faculty of Medicine of Strasbourg. In 1966 she entered the service of the European Atomic Energy Community after a particularly glowing assessment of her application and later, in 1968, she was appointed to the Commission's medical branch (Directorate-General IX, Personnel and Administration) in which, in the period prior to the dispute, she was assigned to the department of preventive medicine where her main functions were carrying out examinations on recruitment and medical check-ups, checking reports on medical examinations, vaccinations, the sick-bay, medical supervision of the crèche and consultations at the request of staff. In the same period the applicant acted as replacement for the head of the medical branch, Dr Semiller.

3. It appears from the file on the case, and it has been verified during the inquiry, that difficulties arose between the applicant and the administration about the scope and the method of conducting examinations on recruitment. It is not denied that the applicant took a stricter view on this matter than the administration and a difference of opinion arose over the proper bounds of the doctor's own responsibility and the administration's powers of management.

4. On 12 July 1978 the Commission, acting on a proposal by the competent Member of the Commission, Mr Tugendhat, adopted a decision on the reorganization of the medical branch which was thenceforth divided into a branch for decentralized staff under the charge of the head of the old medical branch, Dr Semiller, and a branch for Brussels staff under the charge of Dr Siddons, an official in Grade A 4 who entered the service of the Commission in 1974. Both those branches were directly attached to the Director-General of Directorate-General IX. It was further decided that the competent Commissioner should take the necessary decisions concerning the assignment to both those medical branches of the other officials belonging to the old medical branch.

5. It appears from the detailed list of posts drawn up after that decision was taken that the applicant retained, at least temporarily, her former duties in the new medical branch for Brussels staff, including acting as replacement for the head of the branch.

6. After various talks between Dr Siddons and the applicant and an interview on 12 March 1979 between the applicant and the Director-General on 14 March 1979 the Director-General sent the applicant a letter in which he confirmed that as part of the reorganization of the medical branch he intended to put Dr Turner in charge of a “medico-social unit” in the medical branch for Brussels staff. It was defined in these terms : (1) Social medicine Development of social medicine at the Commission — Psychological and psychiatric problems and other medico-social problems; The drawing up and implementation of a programme to combat alcoholism at the Commission; Liaison with the Welfare Division. (2) Other medical duties (as far as the programme of social medicine permits) Medical check-ups; Invalidity Committee; The monitoring of medical check-ups carried out outside the institutions (final paragraph of Article 59 of the Staff Regulations) and the giving of opinions on requests for additional examinations; Medical supervision of the staff of the Economic and Social Committee; Other duties as and when the needs of the service require. (3) Administrative duties Assisting in the administrative work of the branch.

7. After the interview on 12 March 1979 the applicant sent the Director-General a report dated 13 March 1979 in which she set out her view of medical examinations on recruitment following the conversation which had taken place.

8. By a letter of 21 March 1979 the applicant informed the Director-General that it was not possible for her to consent to the proposal which had been made. She contended, first, that the Commission had not taken any decision for the purpose of organizing a department of that nature and, secondly, that the duties listed under “social medicine” were not related to her own medical speciality.

9. By a letter of 4 May 1979 the Director-General formally requested the applicant to take up her new duties from 10 May stating that, besides psychological and psychiatric problems, the work under the head “social medicine” would consist of “examining together with the other departments of the administration certain individual cases presenting both medical and social problems”.

10. By a letter of 10 May 1979 the applicant stated that she was still opposed to the decision which had been taken. She pointed out that no reorganization plan had been drawn up by the Commission and that there was no detailed list of posts under which the new duties proposed to her could be defined. By a letter of 14 May 1979 the Director-General stated that his letter of 4 May 1979 was a formal instruction on his part and that the applicant was required to perform her new duties in the Brussels medical branch from the date previously indicated.

11. On 18 May 1979 Dr Siddons gave the applicant confirmation of her new duties stating that from 28 May 1979 they would be those described in the Director-Generaľs letter of 14 March 1979 mentioned above. He added that the description of duties was sufficiently detailed to enable the applicant to implement the programme envisaged. At the same time he asked Dr Turner to let him have proposals as soon as possible for carrying it out. To that letter a “staff note” was attached listing Dr Turner's duties in identical terms to those contained in the letter of 14 March 1979 except that they included among the “other duties as and when the needs of the service require” medical check-ups of staff employed in the crèche. The document also stated that from 28 May 1979 examinations on recruitment would be carried out by Doctors Callebaut, Klein and Mancini. It became apparent during the preliminary inquiry that those three doctors worked for the Commission part-time as visiting doctors.

12. On 8 June 1979 the Commission adopted an express decision reassigning Dr Turner from the old medical branch to that for Brussels staff. That decision gives no details of the new duties assigned to the applicant.

13. On 3 July 1979 the applicant served a complaint on the Commission under Article 90 of the Staff Regulations against the decision of the Director-General for Personnel of 4 May 1979. In her complaint she claimed that, besides the fact that she was placed under the direction of another doctor in the same grade as herself, the duties in the so-called “medico-social” field were excessively vague, bore no relation to the facts of the situation and hardly any to her own specialized field. So, besides involving a significant reduction in the work normally carried out by a medical officer serving as an official in the medical branch, the change of posting imposed upon her had all the characteristics of a disguised disciplinary measure and had been interpreted in that way in the medical branch.

14. On 6 November 1979 the applicant submitted to the administration a memorandum on the organization of medical work in Brussels in which she set out her views on the distinction between industrial medicine, preventive medicine and social medicine. She stressed in particular that all medical work in the medical branch had a social aspect and that it therefore seemed artificial to separate that work from the functions of the branch as a whole.

15. The complaint of 3 July 1979 was rejected by a letter of 13 December 1979 signed by the competent Commissioner. Following that decision the applicant lodged her first application to the Court on 21 February 1980.

16. It appears from the file on the case that in the same period the head of the branch repeatedly asked the applicant for her proposals on the organization of the “medico-social unit” but that she always refused to cooperate in organizing such a unit which, she claimed in a letter sent to the Director General for Personnel on 5 October 1979, was being created primarily in order to remove her from the medical branch by giving her duties which were ill-defined and in any event unrelated to her specialized field.

17. On 17 January 1980 the Director-General sent the applicant a letter informing her of his intention to propose that in the interests of the service she be assigned to another post. By a letter of 8 February 1980 he provided further details, offering Dr Turner a choice between a post in DirectorateGeneral V (Employment and Social Affairs) and one in Directorate-General XII (Research, Science and Education).

18. After obtaining information from those two directorates-general on the posts offered the applicant informed the Director-General by a letter of 26 February 1980 that neither of the posts comprised duties related to the practice of medicine, internal medicine, cardiology or industrial medicine and that the two posts in question had no well-defined duties at all.

19. In the same period the administration published Vacancy Notice No COM/229/80 relating to a post in Career Bracket A 5/A 4 in Directorate-General XII. It gave the following details:

“Nature of duties: principal administrator to assist in:

Organizing the work of the Committee on Medical Research and Public Health (CRM/CREST) and that of its permanent working parties;

Interdepartmental liaison to coordinate the Commission's work touching on health;

A constant comparison of national research and development programmes in this field.

Qualifications required:

University education leading to a degree or equivalent working experience;

Knowledge of medicine;

Thorough experience related to the duties”.

20. By decision of 20 May 1980 the Commission compulsorily transferred the applicant to the post described in Vacancy Notice No COM/229/80 as from 1 June 1980. In the recitals to that decision the Commission, having noted the applicant's objections, states as follows:

“Moreover, Dr Turner, who was previously assigned to the specialized medical branch for Brussels staff has not adapted herself to the new duties which have been assigned to her in that branch; it therefore appears that it is necessary, both in the interests of the service and in those of Dr Turner, to assign to her new duties”.

21. On 28 May 1980 the applicant submitted a complaint against that decision under Article 90 of the Staff Regulations and on 29 May 1980 she lodged her second application to the Court and at the same time applied for the adoption of interim measures to suspend the operation of the decision to transfer her.

22. By order of 2 July 1980 ([1980] ECR 2135) the President of the Second Chamber decided that there was no urgency and that the immediate application of the decision was not likely to have irreversible consequences as far as the applicant was concerned and he rejected the application for the adoption of interim measures.

23. The applicant's complaint through official channels was rejected by Commission decision of 2 October 1980.

24. The Commission subsequently published a vacancy notice under reference COM/947/80 creating a post in Career Bracket A 7/A 6 in the medical branch for Brussels staff with a time-limit of 28 November 1980 for the submission of applications. It specified as follows:

“Title of post: Medical Officer

Description and nature of duties:

Working as a medical officer and assisting the head of branch in relation to medical administration in the medical branch of the Commission of the European Communities for Brussels staff, in particular:

1) Preventive medicine

2) Industrial medicine

3) Consultations at the request of staff”.

25. The Commission has admitted that that vacancy notice was in fact intended to secure a replacement for the applicant in the medical branch. It also emerged during the inquiry that the duties previously proposed to Dr Turner had been shared after her compulsory transfer by the head of the branch and a visiting doctor working part-time who was also responsible for some of the examinations on recruitment and that towards the end of September 1980 the visiting doctor had drawn up a “proposal for a medico-social unit” consisting of two typed pages. On the date of the oral procedure that proposal had still not received the approval of the head of the branch.

The object of the action

26. The first application (59/80) is for the annulment of the decisions adopted by the Commission to take away the applicant's former duties and give her a new responsibility, for a “medico-social” unit or branch. It became clear during the proceedings that the decision of 8 June 1969 reassigning the applicant to the medical branch for Brussels staff, the object of the action, was not of a nature such as adversely to affect the applicant, since it did not contain any specific details of her duties. It also became clear during the proceedings that in actual fact that decision was not subject to challenge.

27. In support of her application the applicant makes two submissions alleging, first, disregard of the interests of the service, mentioned in Article 7 (1) of the Staff Regulations, and, secondly, a misuse of power as regards her.

28. The object of the second application (129/80) is the decision of 20 May 1980 imposing a compulsory transfer. The application is based on four submissions alleging, first, disregard of the interests of the service within the meaning of Article 7 of the Staff Regulations, secondly, infringement of essential procedural requirements because the grounds on which the decision to transfer her was based were incorrect in so far as it was claimed that there was a failure on the part of the applicant to adapt herself to her new duties, thirdly, a breach of the “duty of care”, as defined by the Court (Third Chamber) in its judgment of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner [1980] ECR 1677 and, finally, a misuse of power on the ground that the decision to transfer her is really a disguised disciplinary measure.

29. An analysis of those submissions shows that although the first submission on the taking into account of the interests of the service coincides with the first submission in Application 59/80, the other three submissions concerned with the taking into account of the applicant's personal situation in fact overlap, except for the alleged lack of reasons, with the submission alleging misuse of power.

30. It follows that now that the two cases are joined the two applications may be considered as a whole in the light of two submissions as to, on the one hand, the taking into account of the interests of the service within the meaning of Article 7 of the Staff Regulations and, on the other, the concept of misuse of power, subject to the submission alleging an insufficient statement of the grounds, which is directed only against the decision to transfer the applicant.

31. By way of the claim for damages included in the second application the applicant seeks compensation for the non-material damage which she alleges her change of posting caused her.

Admissibility

32. In its defence to the first application the Commission has raised two objections of inadmissibility.

33. The first of those objections, made against the application in so far as it challenges the decision of 8 June 1979 to reassign the applicant, has lost its purpose because it has been stated that the applicant has no interest in challenging that decision.

34. The second objection of inadmissibility is based on the fact that the applicant no longer has any interest in seeking the annulment of the measures changing her duties in the medical branch because by the decision of 20 May 1980 she was transferred to another directorate-general. The Commission takes the view that once the contested measure ceases to have effect during the proceedings before the Court the action loses its purpose.

35. That line of argument on the part of the Commission must be rejected since it is contrary to good faith (see the judgment of 21 May 1981 in Case 156/80 Morbelli, [1981] paragraph 14).

36. In fact by stating in the recitals to the decision to transfer the applicant that she had not “adapted herself to the new duties assigned to her”, the Commission itself established a link between that decision and the dispute forming the object of the first application. The Commission is therefore contradicting its own statements if it claims that the first application has lost its purpose owing to the decision to transfer the applicant.

37. That objection of inadmissibility must therefore be rejected.

The submission alleging disregard of the interests of the service

38. The applicant relies first on Article 7 of the Staff Regulations according to which the assignment of officials should be “solely in the interests of the service”. She makes three arguments in this regard concerning the demarcation of duties between the administration and the medical branch, the absence of any objective justification for the setting-up of a “medico-social” unit and certain aspects of the organization of the medical branch.

39. She contends that it is not for the administration to define, allocate or alter medical duties and emphasizes the freedom and ethical independence of a doctor when carrying out the responsibilities which are his. It is on the basis of that principle that she sets out in greater detail, in her statement of 3 March 1979, her view of medical examinations on recruitment, stressing the freedom of action which must be allowed to the doctor in this matter when deciding on the extent of his investigations and the freedom to make his own judgment when setting forth his assessment. She points out that after the only doctor on the established staff responsible for medical examinations on recruitment was ousted from the medical branch, the task of conducting them was assigned to several visiting doctors with the result that such examinations have since lost all consistency.

40. In adopting that line of argument the applicant is confusing the freedom of assessment which must be accorded to doctors, as regards making diagnoses and taking medical decisions where they themselves assume responsibility for any treatment, and the special position of a doctor acting in a consultative or supervisory capacity within an administrative framework.

41. The functions of the medical branches of the Community institutions are determined under the Staff Regulations by the administration in accordance with the needs created either by recruitment, the operation of the various social security schemes, or the examination of staff and facilities for health purposes. The administration has the right to define the nature and the scope of the various medical tasks arising in those different areas, save only that it may not impair the independence of judgment and decision of the doctors whom it employs when they are carrying out the duties assigned to them in that framework as thus defined and when they are required to carry out certain kinds of medical work of a preventive or therapeutic nature on their own responsibility.

42. Those principles also apply to the practice of conducting medical examinations of new staff. It is for the administration to determine the nature and scope of the examinations and to give appropriate instructions to the doctors responsible for undertaking them. Within that framework doctors enjoy freedom of assessment in regard to their medical findings and assessment of the fitness of candidates.

43. Secondly, the applicant makes some criticism of the very idea of a “medico-social unit” and the need to create a special organization for such work within the medical branch. She contends first of all that there is no precise distinction between industrial medicine, preventive medicine and social medicine inasmuch as the medical and social aspects of all the duties assigned to the medical branch are closely connected so that the definition of a specialized “medico-social unit” creates an artificial distinction between types of work which are really inseparable. As regards the steps taken in this regard by the Director-General and the head of the medical branch for Brussels staff, the applicant draws attention to the fact that the Commission has never decided upon the creation of such a unit and therefore it is not for the administration to set it up.

44. The applicant is no doubt right when she emphasizes that there is a close link between industrial, preventive and social medicine. That was not contested during the inquiry. However, that fact is in no way inconsistent with the administration's complete freedom as regards the organization of the medical branch, the allocation of duties within it and the assignment of staff on the basis of the duties so defined.

45. Therefore, without prejudice to the assessment of the individual situation of the applicant and of the action taken by the officers of the Commission in regard to her, the freedom of the Community administration to give doctors in its medical branch more or less specialized duties for the purpose of carrying out certain specific tasks, such as those entailing medical social work, is not open to challenge.

46. Moreover, the administration cannot be denied the power to define those duties within the framework of general directives issued by the Commission. It follows that the decision adopted on 12 July 1978 by the Commission formed a sufficient basis to allow the administration to adopt all the measures which it considered necessary for the purpose of giving a structure to the two medical branches which it had been decided to set up at that time.

47. Last of all the applicant raises certain issues concerning the actual organization of the medical branch. She considers first that the division of the former medical branch into a branch for decentralized staff and one for Brussels staff is not in accordance with medical requirements. Furthermore she complains that the head of the new branch for Brussels staff was appointed in disregard of seniority because he was a doctor in the same grade as herself, who had entered the service of the Commission after her.

48. As regards the division of the former medical branch into a branch for decentralized staff and one for Brussels staff, it is sufficient to point out that the applicant has no interest in raising any challenge in that matter because her posting to a relatively large unit, namely the medical branch for Brussels staff, left the administration with ample scope for giving her a post corresponding to her training and experience.

49. As regards the issue of the applicant's seniority compared to that of the new head of the medical branch for Brussels staff, the Commission points out that although it is true that the present head of the branch was not recruited until 1974, that is to say, when the applicant was already in the service of the Commission, it is not contested that he ranks higher than the applicant because he was appointed directly into Grade A 4 whereas the applicant did not obtain promotion to that grade until 1978.

50. Even though it must be admitted that administrative practices of that kind may create difficulties as far as cooperation within departments is concerned, it should however be remembered that the administration is not bound to consider seniority alone when arranging its internal organization. It does not moreover appear that the Commission injured the applicant's interests in appointing the head of the new medical branch for Brussels staff because owing to the grading given to the future head of the branch from 1974 she was lower in rank.

51. It is apparent from all the foregoing considerations that the first submission must be rejected.

The submissions based on misuse of power and incorrect statement of reasons

52. As far as her reassignment in the medical branch is concerned, the applicant contends that the duties assigned to her in the “medico-social unit” lacked substance, that the administration was never able to describe them in specific terms and that the action taken against her had no other purpose than to deprive her of her former duties and to “shunt her into a siding”. She further argues that, even if the administration genuinely wished to develop this part of the medical branch, those duties were outside her own specialized field as a clinician specializing in internal medicine because the duties in question were more closely related to the field of psychology and social work. She points out finally that after she was ousted from the medical branch the duties assigned to her were practically abandoned and that they are no longer even part of the description of the post offered for competition to fill the vacancy created in the medical branch following her removal.

53. As regards the compulsory transfer, the applicant points out that she was appointed against her will to a post completely unrelated to her training and specialized field which, judging by the particulars contained in the vacancy notice, was open to persons who did not have a full medical training. She further complains about the unjustified nature of the statement of reasons on which the decision to transfer her was based in so far as it purports to be based on the fact that the applicant did not “adapt herself to the new duties assigned to her” previously.

54. In view of the preparatory inquiries undertaken by the Court those complaints of the applicant appear to be well founded. In this regard the decisions changing the applicant's duties within the medical branch and the decision to transfer her compulsorily should be examined separately before the complaints common to both measures are dealt with.

The alteration of the applicant's duties within the medical branch

55. As has already been indicated, it cannot be denied that medico-social problems exist in the work of the medical branch or that the administration has discretion as regards the organizational measures to be adopted to resolve those problems satisfactorily. Nevertheless, in view of the circumstances, the measures taken in regard to the applicant have no justification.

56. It should be observed in this regard that it is primarily a matter for the administration and, more specifically, for the head of the medical branch, to define the functions of the new “medico-social” unit envisaged. The administration was right to consult the applicant about the matter but it could not transfer the responsibility for it to her.

57. However, it appears from the file on the case that in defining the “medico-social” unit the administration has never gone further than using general formulae. Apart from the fact that a number of subsidiary duties was listed, the list of duties submitted to the applicant on 14 March 1979 by the Director-General and reproduced in Dr Siddons's staff note of 28 May contains no specific indication of the scope of the concept of “social medicine”. Similarly, in his letter of 13 December 1979 rejecting the applicant's first complaint, the competent Member of the Commission restricts himself to stressing that the new duties “are in the field of preventive and social medicine and involve in particular the examination of individual cases presenting both social and medical problems” and he later adds that the creation of a medico-social unit, “the basic aim of which is to organize and develop genuine social medicine for officials”, naturally necessitates new duties on the part of the doctor responsible for this field and consequently requires “an appropriate allocation of duties within the medical branch”.

58. Rather than defining the scope of the new duties, the head of the branch insistently asked the applicant to draw up a working plan herself. The applicant cannot be reproached for refusing to cooperate in defining duties the content of which did not seem clear to her and which were for the administrative authority to determine. That point was moreover stressed in the letter of 13 December 1979 mentioned above in which it is stated that measures to define practical duties “are taken by the superior officers in the interests of the service”.

59. The sequence of events after the applicant was removed from the medical branch shows that the administration was not really interested in instituting a “medico-social” unit. The inquiry has in fact disclosed that, except for the duties belonging to the head of branch, that work was subsequently assigned to a visiting doctor appointed on a part-time basis, who devoted only part of his working time to it. In September 1980 the same doctor drew up a draft proposal envisaging genuine medical duties together with duties delegated either to social workers or to the administration, which, in the case of the genuine medical duties, did not go appreciably further than the general indications of the work involved which had been previously given to the applicant. It became apparent, moreover, that at the date of the oral procedure these proposals had still not been approved by the head of the branch.

60. Finally, it should be noted that Vacancy Notice No COM/947/80, intended to secure a replacement for the applicant in the medical branch, makes no reference to “social medicine” whilst in the description of duties it refers only to “preventive medicine” and “industrial medicine”. During the inquiry the Commission stated that the medical officer whom it planned to recruit would not necessarily be put in charge of the field of “social medicine” proposed to the applicant but the Commission has not explained how that duty would be performed by another person occupying that post.

61. It follows from that concordant evidence that in making the applicant responsible for instituting a “medico-social” unit the administration had no specific idea of the work involved and that the applicant was therefore entitled to refuse duties which she might rightly consider to be lacking in substance.

The decision to transfer the applicant

62. In view of that refusal by the applicant the administration decided to transfer her compulsorily to a post of principal administrator in Directorate-General XII for Research, Science and Education, involving the duties defined in Notice of Competition No COM/229/80. As was recalled above, the only reason given for that transfer was that the applicant had not “adapted herself” to the new duties assigned to her in the medical branch.

63. It follows from the foregoing that such a statement of reasons amounts to an unjustified slur on the applicant in view of the insubstantial nature of the duties which she had been previously given so that the decision to transfer her is in any event lacking in a correct statement of the grounds on which it is based, contrary to the requirements of the second sentence of the second paragraph of Article 25 of the Staff Regulations.

64. It should further be observed that, judging by the description of the qualifications required contained in Notice of Competition No COM/229/80, the duties to which the applicant was transferred do not correspond either to the applicant's level of training or to the experience which she had gained after a lengthy period of practice in the Commission's medical branch.

65. It is not in fact denied that the post in question was open to persons with no real medical training or at any rate only an incomplete training in medicine. Even though the post in question might reasonably have been given to a doctor who had submitted his application, it cannot be regarded as proper for the Commission to transfer compulsorily to such a post against her will an official having a specialized medical training and as such eligible for duties different in quality from those envisaged in the notice of competition in question.

Some complaints common to the reassignment and the transfer

66. Finally, it is necessary to consider the applicant's argument that neither the duties given to her upon her reassignment within the medical branch nor those assigned to her as a result of her compulsory transfer were in any way related to her specialized field and the experience which she had gained through working in the medical branch. She lays stress more particularly on the fact that the effect of the first change of duties and especially that of the second was to restrict her to purely administrative work and to prevent her from practising medicine.

67. The Commission contends that any doctor entering the service of a Community administration must be prepared to accept any duties of a medical nature inherent in the administration of the institution, that is to say, either administrative or scientific. It points out that the applicant was originally recruited by the EAEC to perform duties of that kind and that it was only after her transfer to the medical branch that she was given duties partially involving the practice of medicine.

68. It is undoubtedly true that the Community administration must be able to procure the assistance of medical experts for the performance of a variety of tasks entailing either work akin to the practice of medicine or work of an administrative or scientific nature and that some degree of mobility of officials is therefore desirable. However, in view of the specific characteristics of the medical profession, different principles must be applied to the problem depending on whether it is a matter of an official's being assigned to a medical post which he has chosen voluntarily or of his being assigned to another post after a lengthy period of work in the service of the Community, especially in the case of a compulsory transfer.

69. It should be observed in this regard that, although the applicant was originally recruited to carry out work predominantly scientific in nature, the fact is that for most of her career she has been assigned to duties which were appropriate to her own specialized field, a good part of which involved work related to the practice of medicine. Therefore the Commission was not entitled, for reasons for pure administrative convenience, to assign the applicant to duties which were manifestly inappropriate to her training and previous service record.

70. It follows from all the foregoing considerations that in view of the circumstances the Commission's conduct towards the applicant was verging upon the arbitrary. The differences of opinion existing between Dr Turner and her superiors, which undoubtedly existed, should have been settled by objective examination and not by means of indirect measures designed to remove the applicant from her duties, with no indication of the true reasons and in disregard of her professional interests founded on an honourable service record in the Community administration.

71. It therefore appears that the submission alleging misuse of powers is well founded as regards the whole of the measures taken against the applicant, that is to say both in regard to the decision of the Director-General for Personnel and Administration of 4 May 1979 assigning the applicant new duties within the medical branch for Brussels staff and the decision of 20 May 1980 transferring her. Those decisions must therefore be annulled.

72. Under the first paragraph of Article 176 of the EEC Treaty it will be the duty of the administration to reconsider the applicant's situation in the light of the principles underlying this judgment and to adopt new measures in regard to her future posting.

The action for damages

73. In support of her claim for damages the applicant contends in substance that her professional reputation and standing in professional circles have been injured owing to the fact that she was removed from her medical responsibilities by measures which she considers to be a disguised form of disciplinary action.

74. In view of the reasoning set out above this judgment itself constitutes appropriate reparation for any injury which may have been done to the applicant's professional standing. The claim for damages therefore has no purpose and it is not necessary to adjudicate upon it.

Costs

75. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the defendant has basically failed in its submissions it must be ordered to pay the costs, including those of the application for the adoption of interim measures, which were reserved by the order of the President of the Second Chamber of 3 July 1980.

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

1 Annuls the decision of the Director-General for Personnel and Administration of the Commission of 4 May 1979, assigning the applicant to a different post as part of the reorganization of the medical branch, and the decision of the Commission of 20 May 1980 compulsorily transferring the applicant to a post in Directorate-General XII;

2 Orders the Commission to pay the whole of the costs, including those of the application for the adoption of interim measures.