JUDGMENT OF 29. 10. 1981 — CASE 125/80 ARNING ν COMMISSION
In Case 125/80
THE COURT (Second Chamber) composed of: O. Due, President of Chamber, A. Chloros and F. Grevisse, Judges, Advocate General: S. Rozès Registrar: H. A. Rühl, Principal Administrator
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the procedure, the conclusions and the submissions and arguments of the parties may be summarized as follows :
I — Facts and procedure
1. On 18 December 1968, with effect from 1 January 1969, then again on 9 August 1970 following the annulment of the first decision making the appointment by the judgment of the Court of 10 December 1969 in Case 12/69, Wonnerth ν Commission ([1969] ECR 577), Mr Arning, who has been an official of the Commission since 1960, was appointed head of the Industrial Safety Division in the Industrial Safety and Medicine Directorate which is part of the Directorate-General for Social Affairs, in Grade A 3.
2. By a decision of 17 July 1979, in the context of the reorganization of the Directorate-General for Social Affairs, the Commission decided to appoint Mr Arning to the post of adviser in the Health and Safety Directorate. The division of which Mr Arning, who is trained as a lawyer, was the head, was put in the charge of an engineer, Mr Lemoine, who is in Grade A 4.
3. Mr Arning was informed of this decision orally by his director on 31 July 1979. The new detailed list of posts for the Directorate-General for Employment and Social Affairs was published in Administrative Notices No 246 of 2 August 1979. By a letter of 25 September 1979, the Director-General for Personnel and Administration informed Mr Arning that “in the context of the measures concerning the reorganization of Directorate-General V, for Employment and Social Affairs, the Commission, in the course of its 524th meeting on 17 July 1979” had decided to appoint him as adviser in Directorate E, the Health and Safety Directorate. On 26 September 1979, the Director-General of the Directorate-General for Employment and Social Affairs explained the decision to Mr Arning by referring, according to the applicant, to the structure of the directorate and the need to make better use of his legal knowledge.
4. The reorganization of the directorate in question is shown in the following comparative table : Before reorganization After reorganization Directorate F Directorate E Health and Safety (P. Recht, unclassified adviser) Health and Safety (P. Recht, unclassified adviser) (G. Amine, adviser) 1. Environmental health and radioactivity monitoring (—) 1. Toxicology, biology and health effects (—) 2. Radioactive waste and prevention and safety measures in nuclear installations (E. Hampe) 2. Radioactive waste and prevention and safety measures in nuclear installations (E. Hampe) 3. Basic standards and health protection regulations (H. Eriskat) 3. Public health and radiation protection (H. Eriskat) 4. Industrial medicine and hygiene (P. Hentz) 4. Industrial medicine and hygiene (P. Hentz) 5. Industrial safety (G. Arning) 5. Industrial safety (P. Lemoine) 6. Safety matters in the coal and steel industries (P. Lemoine) 6. The Mines Safety and Health Commission (J. Leclercq) 7. The Mines Safety and Health Commission (J. Leclercq) The proposal for reorganization adopted by the Commission on 17 July 1979 was accompanied by a note which, in relation to the Health and Safety Directorate, read as follows:
“...
11. As far as Directorate F is concerned, the development of initiatives in the fields of industrial toxicology and biology, as a result of the implementation of the proposals for action in ‘Safety and Health at Work’, necessitates the creation of a special administrative unit responsible for examining the problems related to the monitoring of the effects of major pollutants on the health of workers (draft directive on major pollutants at present before the Council of Ministers and proposal for a directive in the process of preparation on exposure limits for lead, cadmium, asbestos, etc.)
12. It is considered to be more rational to bring together all the problems concerning safety in one department which is to be headed by Mr Lemoine. ...
14. This reorganization results in the number of divisions and special departments being reduced by one division. There are possibilities of further rationalization.”
5. On 26 October 1979, Mr Arning lodged a complaint against the decision of the Commission of 17 July 1979 under Article 90 (2) of the Staff Regulations. On 23 May 1980, Mr Arning brought this action. By letter of 21 May 1980, which was received by Mr Arning on 4 July 1980, the Commission had rejected his complaint. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (Second Chamber) decided to open the oral procedure without any preliminary inquiry. However, it decided to ask the Commission to reply in writing to certain questions before the oral hearing.
II — Conclusions of the parties
1. The applicant claims that the Court should: (1) Declare that the application is admissible and well-founded; (2) Annul the decision of the Commission adopted on 17 July 1979 and notified in writing to the applicant by letter of 25 September 1979 whereby he was relieved of his duties as Head of the Industrial Safety Division and transferred to the post of adviser in Directorate E, the Health and Safety Directorate, in the detailed list of posts of Directorate-General V, for Employment and Social Affairs; (3) In addition annul, in so far as is necessary, the implied decision rejecting his complaint submitted on 26 October 1979 in accordance with Article 90 (2) of the Staff Regulations; (4) Order the Commission to pay the applicant damages of one unit of account in compensation for the non-material damage suffered; (5) Order the defendant to pay the costs.
2. The Commission claims that the Court should: (1) Dismiss the application as inadmissible and in any event unfounded; (2) Order the applicant to pay the costs.
III — Submissions and arguments of the parties
A — Admissibility
1. The Commission claims that the application is inadmissible in so far as it seeks the annulment of the implied decision rejecting the applicant's complaint: according to the judgment of the Court of 28 May 1980 in Joined Cases 33 and 75/79 Kuhner ν Commission ([1980] ECR 1677 at p. 1694), “every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged”.
2. The applicant is content to leave the matter to the Court.
Β — Substance
The applicant's first submission
Part One
1. The applicant believes that the requirement in the second paragraph of Article 25 of the Staff Regulations that a decision relating to a specific individual be communicated to him “at once” is infringed by the fact that the decision of 17 July was not communicated to him until 25 September 1979. The publication of the new detailed list of posts cannot take the place of an individual communication to the applicant of a change of posting.
2. The Commission points out that in its judgment in the Kuhner cases (paragraphs 14 and 15) the Court found that: “... since it is a measure concerning organization of the department, the duty to give a statement of grounds must be related to the discretionary power which the appointing authority exercises in this connection and also to the marginal nature of the disadvantages which result for the official concerned from this kind of measure. In order to decide whether the requirement laid down in Article 25 has been met it is advisable however to take into consideration not only the document giving notice of this decision but also the circumstances in which it was taken and brought to the knowledge of the official concerned as well as the departmental memoranda and other communications underlying it which have clearly given the applicant information as to the grounds and the basis of the said decision”. Although these statements were made in relation to the duty to state the grounds on which a decision is based, the Commission is in no doubt that they apply equally to the duty to communicate at once imposed by the second paragraph of Article 25 of the Staff Regulations. In any event, the Commission was released from the duty to inform individually each of those, affected by means of a communication.owing to the fact that the decision of 17 July 1979 was a measure of reorganization involving all of the officials in the directorate-general in question and that they had been informed collectively by means of the publication of the new detailed list of posts. The Commission points out that this publication took place-, on 2 August 1979, that is, within a very short period of time. In view of the publication of this list and also the information already available to the applicant, the notification made to him by letter of 25 September 1979 cannot,. according, to the Commission, be considered to be too late.
Part Two
1. The applicant believes that the statement of grounds on which the decision was based should have been communicated at the same time as the decision. He states that the ground given in the letter of 25 September 1979 was limited to referring to the reorganization measures, without setting out why these necessitated an actual change in the applicant's personal situation. This statement of grounds does not meet the requirements laid down in the second paragraph of Article 25; of the Staff Regulations: judgment of 28 February 1980 in Case 89/79 Bonu v Council ([1980] ECR 553); judgments of 5 April 1979 in Case 112/78 Kobor v Commission ([19791 ECR 1573) and in Case 117/78 Orlandi v Commission ([1979] ECR 1613). The decision affected him adversely, even though his material situation has not changed. The circumstances surrounding the decision make it appear damaging to his reputation. It assigns him to a post which was not planned and for which he had not applied. The department of which he was the head was downgraded for this purpose to a special department, though it retained its former title. The decision constitutes a disguised disciplinary measure equivalent to a reduction in rank, as if there had been incompetence and inefficiency on the part of the applicant in the performance of his duties.
2. The Commission does not see what other justification it could have given, since the only ground for the change in the applicant's posting was the departmental reorganization in the Directorate-General for Employment and Social Affairs. According to the Commission, a fuller statement of reasons is less essential inasmuch as it is clear from the judgment in the Kuhner cases that, in the case of a measure concerning the organization of the department, the duty to give a statement of grounds must be related to the marginal nature of the disadvantages which may result from such a measure for the officials concerned; from the material point of view the situation of the applicant has not changed. The Commission emphasizes that the post of adviser which the applicant at present holds is in keeping with his special legal abilities and enables him to have a general view of the legal aspects of the different proposals which the Commission has to work out in the field of medicine and industrial safety. The applicant's new posting is also consistent with the Commission's decision on the description of the duties and powers attaching to the basic posts appearing in Annex IA to the Staff Regulations, published in the Official Notices of the Staff Courier No 272 of 4 September 1973. Nor does the Commission see in what way the contested decision adversely affects the applicant. It recalls that in the judgment in the Kuhner cases the Court recognized that in connection with the organization of a department the appointing authority exercises a discretionary power which is also to be related to the duty to give a statement of grounds. The Commission's decision is not arbitrary. It affects the directorate-general in question as a whole. It is a direct result of the Council Resolution of 29 June 1978 on an action programme of the European Communities on safety and health at work (Official Journal 1978, C 165, p. 1) in which emphasis is put on fixing exposure limits, establishing conditions of hygiene, methods of analysis and sampling, etc. This technical approach was confirmed in the detailed list of posts published in Administrative Notices No 286 of 17 July 1980. In gathering together all the problems relating to industrial safety under the responsibility of a single special department, the Commission was only giving expresssion to this new approach on an institutional level. An engineer is better qualified than a lawyer to take on the running of a department of this kind. The Commission adds that, in order to assess the adequacy of the reasons given in the letter of 25 September 1979, account must be taken of the oral explanations given to the applicant by his director and director-general, of the fact that the Commission's decision of 17 July 1979 reflects, on an institutional level, the new policies set out by the Council in the action programme adopted on 29 June 1978, and of the fact that the director and his various assistants, including the applicant, were involved both in preparing and in carrying out that programme. The new detailed list of posts could not, therefore, have surprised the applicant.
3. The applicant replies that the Council Resolution of 29 June 1978 did not establish the primacy of the technical field over the legal field and does not necessitate his replacement by an engineer. He points out that Article 117 of the Treaty and those which follow provide for the harmonization of social provisions and that the above-mentioned resolution refers to these articles and also to Article 235 of the Treaty. He emphasizes that in the division of which he was the head there remain very close links between the legal and the technical fields and during his long career in his own country and in the Community he has acquired wide experience of the technical aspects of the problems in question.
The applicant's second submission
1. In relation to this submission, the applicant claims that there has been a breach of a duty which is known in German administrative law as “Fürsorgepflicht” and which requires that the administration shall consider not only the interests of the service but also the interests of the official in avoiding any detriment to his career. Indeed, the Commission did not take into account either the applicant's seniority in the department, or his abilities and experience and the responsibilities which he held. The aforementioned principle is further breached by the fact that the decision damaged the applicant's career and reputation as he has shown.
2. The Commission rejects this argument and refers to its observations on the second part of the first submission.
The applicant's third submission
1. In connection with this submission the applicant, relying on the judgment of the Court in the Kuhner cases, notes that there was an infringement of the rights of the defence, since he was neither consulted nor informed in advance of the contested decision. Indeed, he knew nothing about it until he was informed of it by his director on 31 July 1979.
2. The Commission points out that in the above-mentioned judgment in paragraph 25 the Court held that: The formal requirements were met. Furthermore, the directorate to which the applicant belongs took part in the preparation of the Council Resolution of 29 June 1978 and its implementation was examined with Mr Arning among others.
“This case cannot be said to concern ‘the rights of the defence’ but only a general principle of good administration to the effect that an administration which has to take decisions, even legally, which cause serious detriment to the persons concerned, must allow the latter to make known their point of view, unless there is a serious reason for not doing so. The contested decision, under which the applicant retains all the advantages of his grade and basic post, is not of such a kind as to make it necessary to comply with formal requirements other than those provided by Article 90 of the Staff Regulations for the purpose of protecting the interests of officials and servants, to which is to be added, if need be, judicial review by the Court.”
C — Damages
1. Since the contested decision does not cause damage to the applicant, the Commission believes that his claim for damages is also unfounded.
2. Referring to his observations summarized above, the applicant alleges that he has suffered non-material damage.
IV — Replies to the written questions put by the Court
1. The Court asked the Commission what information it had at its disposal which showed that the applicant was involved in the preliminary work for the reorganization of his directorate, or that he was informed of this reorganization before the decision to change his posting was adopted. The Commission replied that in the interests of efficiency, the initiatives contained in the action programme of the European Communities on safety and health at work were divided among the existing units, in the course of several meetings of the Industrial Medicine, Toxicology and Industrial Safety departments. According to the Commission, it cannot, therefore, be alleged that Mr Arning was not aware of these assignments which were made over a period of several months. The announcement by the director and by the director-general of the change in the detailed list of posts only confirmed a situation which had been under preparation for a long time.
2. The Court further asked the Commission what information was available to show which new or different tasks, assigned to the division of which the applicant was head, necessitated his replacement by an engineer. The Commission replied that the new department covered the following three former units: the Safety Matters in the Coal and Steel Industries Division, the Industrial Safety Division, the secretariat of the Mines Safety and Health Commission. The former coal and steel department, headed by an engineer, dealt with technical research in the coal and steel sectors, and in the context of the programmes of the European Coal and Steel Community. The Mines Safety and Health Commission, in view of the nature of its work, should be under the control of a mining engineer. As to the part of the action programme relating to safety at work which is assigned to the Industrial Safety Division, this essentially concerns the technical aspects of prevention. For all these reasons, the Commission chose to place a mining engineer at the head of this unit. It believed that Mr Arning's training would enable him to be of greater service as an adviser to the entire directorate.
3. The Court also asked the Commission what was the training of the heads of the other departments in the Health and Safety Directorate. The Commission replied that the heads of departments in that directorate were: a doctor, a chemist, an engineer, an expert in protection against radioactivity and lawyer, and a mining engineer. Günther Arning, represented by L. Schiltz, and the Commission represented by D. Sorasio, acting as Agent, assisted by R. Andersen, presented oral argument at the sitting on 18 June 1981. The Commission was assisted at the hearing by Mr Recht, Director and the applicant's superior at the material time. Questions were put to him by the Court and the applicant on the reasons for the reorganization of his directorate and on the possible connection between these reasons and the change in Mr Arning's posting, and also on the extent to which the latter was informed of the reorganization. In particular, Mr Recht explained that, even in 1976 when he took up his duties, the number of divisions and special departments seemed to him to be excessive. Mr Arning's two assistants had been appointed directly to the Secretariat of the Consultative Committee and as a result he was virtually alone with one secretary. Rationalization became absolutely essential as a result of the new action programme, because in spite of the shortage of staff it was necessary to carry out the technical and scientific tasks set out in that programme. For that reason, it was decided to combine Mr Arning's division with the special department for safety matters in the coal and steel industries and later with the.Mines Safety and Health Commission. Since the action programme was the work of the directorate as a whole, Mr Arning ought to have foreseen this result. The Advocate General delivered her opinion on 8 October 1981.
Decision
1. By an application lodged at the Court Registry on 23 May 1980, Günther Arning, an official in Grade A 3 with a legal training in the service of the Commission of the European Communities, brought an action claiming, on the one hand, the annulment of the Commission's decision of 17 July 1979 relieving the applicant of his duties as head of the Industrial Safety Division of the Health and Safety Directorate and transferring him to the post of adviser in the same directorate and, on the other, that the Commission should be ordered to pay him damages of one unit of account in respect of the non-material damage which he has suffered owing to this change of posting.
2. It is clear from the file that the change of posting, which did not raise the problem of whether the applicant's post corresponded to his grade, was made in the context of a reorganization of Directorate-General V, for Employment and Social Affairs. It is not disputed that, in relation to the Health and Safety Directorate, this reorganization was also a rationalization measure with a view to carrying out the new tasks necessitated by the implementation of the action programme on health and safety at work, which was the subject of the Council Resolution of 29 June 1978 (Official Journal 1978, C 165, p. 1) and in which emphasis was put on technical and scientific problems particularly in the fields of toxicology and biology.
3. In relation to the Industrial Safety Division, which, according to the Commission, was very small and the only unit in the directorate to be directed by a person without technical or scientific training, the reorganization led to its amalgamation, first with the special department for safety matters in the coal and steel industries and at a later date with the Mines Safety and Health Commission. In the future all safety problems are to be dealt with by a single special department, headed by a mining engineer, an official in Grade A 4.
4. It is also apparent from the file that the decision of 17 July 1979 was made known to the applicant for the first time during an interview with his director on 31 July. On 2 August, the new detailed list of posts resulting from the first phase of the reorganization was published in Administrative Notices, a bulletin sent out to all staff, and on 26 September the applicant, who had taken up his new duties on the third of the month, had an interview with his director-general. However, it was not until 1 October that the applicant received a communication dated 25 September from the Director-General for Personnel and Administration, which set out the new post which had been given to him by the decision of 17 July, but which merely stated that the said decision had been taken “in the context of measures for the reorganization of Directorate-General V”.
5. In these circumstances, the applicant makes four submissions, of which three relate to the infringement by the Commission of essential procedural requirements, whilst the fourth concerns the content of the decision.
Late communication of the decision
6. First, the applicant alleges that the Commisison has infringed the first sentence of the second paragraph of Article 25 of the Staff Regulations, which provides that any decision relating to a specific individual which is taken under the Staff Regulations shall at once be communicated in writing to the official concerned.
7. In this regard, the Commision submits that the decision of 17 July 1979 was a reorganization measure involving all the officials in the directorate-general. As a result, the collective communication by means of the publication of the new detailed list of posts on 2 August 1979 was already enough. In view of the publication of this list, as well as other information which was at the applicant's disposal before he received the written communication of 25 September 1979, the latter cannot, in the Commission's view, be considered to be late.
8. These arguments on the part of the Commission must be rejected. Although it was taken in the context of a general reorganization, the decision to transfer the applicant constitutes a decision relating to a specific individual the communication of which in writing may not be replaced either by the publication of the new detailed list of posts or by an interview with the applicant's superiors. The fact that the decision of 17 July was not communicated until 25 September constitutes an infringement of Article 25.
9. However, since the communication is an act subsequent to the decision and therefore has no influence over its contents, this infringement cannot result in the annulment of the decision challenged. As the applicant has not established the existence of any damage caused simply by the fact the communication was late, this infringement itself is not sufficient reason to order the Commision to pay damages. This submission must therefore be rejected.
Inadequate statement of grounds
10. Secondly, the applicant submits that the decision affected him adversely and that the grounds on which it was based should therefore have been given, in accordance with the second sentence of the second paragraph of Article 25 of the Staff Regulations. The only reference in the communication of 25 September to the general reorganization of the department was inadequate, he states, especially as the new aims set out in the action programme, which is at the root of his reorganization, did not affect the duties of the Industrial Safety Divison, and the applicant was therefore unable to foresee that the reorganization would extend to that division.
11. The Commission, on the other hand, refers to the judgment of the Court of 28 May 1980 (Joined Cases 33 and 75/79 Kuhner v Commission [1979] ECR 1677) and submits that the grounds given were sufficient, taking account particularly of the wide discretion which it enjoys in relation to its internal organization and of the fact that the decision reflects on an institutional level the new policies set out by the Council in the action programme. The applicant was involved in both the preparation and the implementation of that programme and therefore the new detailed list of posts could not have come as a surprise to him. Furthermore the Commission refers to the interviews which the applicant had with his director and director-general before he received the communication.
12. As the Court has already stated in the aforementioned judgment, it is correct that the duty to give a statement of the grounds on which a measure concerning organization of the department is based must be related to the discretionary power which the appointing authority exercises in this connection and also to the marginal nature of the disadvantages which result for the official concerned from a re-posting which does not affect his grade or his material situation. However, these considerations are not sufficient to justify a statement of grounds which merely refers to the reorganization of the directorate-general concerned.
13. As the Court also stated in the above-mentioned judgment, in order to decide whether the requirement laid down in Article 25 has been met, it is advisable to take into consideration not only the document giving notice of that decision but also the circumstances in which it was taken and brought to the knowledge of the person concerned. In this regard, it is necessary to investigate in particular whether the applicant was already in possession of the information on which the Commission alleges that the decision was based.
14. The applicant does not dispute that he was involved in the preparation and implementation of the new action programme, or that this conferred on the Health and Safety Directorate, albeit in areas not relating to the applicant's division, important new tasks of a technical and scientific nature which the directorate was unable to carry out in the absence of an internal reorganization and rationalization. In addition, the applicant could not have been unaware of the fact that his division was very small, that it was the only unit to be headed by an official without a technical or scientific training and that therefore the abolition of that division might facilitate the necessary rationalization. Furthermore, the publication of the new detailed list of posts gave all officials an idea of the reorganization measures as a whole. In view of this and of the fact that, before receiving the communication in writing, the applicant was able to obtain additional explanations during his interviews with the director and the director-general, it must be held that the official concerned was in a position to determine whether the decision was well-founded and lawful, and to seek a review of its legality by the Court. It follows that, in this instance, the fact that the statement of grounds given in the communication of 25 September is very brief is not such as to affect the validity of the decision of 17 July or render the Commission liable. This submission also must therefore be rejected.
Absence of preliminary consultation
15. The applicant further submits that there has been a breach of the rights of the defence, because he was neither consulted nor informed in advance of the contested decision.
16. The Commission replies to this submission by referring once againt to the above-mentioned judgment of 28 May 1980, in which it was stated that “this case cannot be said to concern the rights of the defence but only a general principle of good administration to the effect that an administration which has to take decisions, even legally, which cause serious detriment to the persons concerned, must allow the latter to make known their point of view, unless there is a serious reason for not doing so”. The Commission maintains that the transfer in question cannot be assimilated to measures of this nature.
17. If the applicant's transfer is indeed a measure adversely affecting him, it is none the less true that it did not affect his grade or his material situation and could not be regarded as a measure causing serious detriment to the official concerned. In such a case, it is not possible, in the absence of an express provision in the Staff Regulations, to drawn the conclusion that there is a duty on the part of the administration to consult the official on the decision which it intends to take in relation to him. This submission must therefore be rejected as having no foundation in law. Nevertheless, it is in accordance with the requirements of good faith and mutual confidence, which should characterize the relationship between officials and the administration, that the latter should, as far as possible, put the official in a position to make his point of view on the projected decision known. Such a practice is also likely to prevent legal disputes.
Infringement of the duty of care
18. Lastly, the applicant submits that the Commission failed in its duty of care, in so far as, in deciding to relieve him of his duties as Head of the Industrial Safety Division, it did not take into account his considerable experience in his special field or his ability in the subject, shown by his periodic reports, so that the decision damaged his professional standing and reputation.
19. In this regard, it must be borne in mind that the administration has a wide discretion in relation to its internal organization. Although it is indeed the case that, in taking a decision concerning the situation of an official, the authority must take into account not only the interests of the service but also those of the official concerned, this consideration cannot prevent the authority from undertaking a rationalization of departments if it believes that this is necessary. Furthermore, the mere fact that an official with legal training is transferred from duties as head of division to being an adviser on all legal problems arising in his directorate, cannot be considered to be a measure damaging the professional standing and reputation of the official concerned. Thus the final submission must also be rejected.
Costs
20. Although the applicant has failed to establish his case, nevertheless in relation to any order as to costs, the aforementioned considerations concerning good administrative practice must be taken into account. Indeed, it appears that the action arose largely as a result of the procedure adopted by the Commission and by the lack of consideration for the applicant which that procedure displayed. It should be pointed out that, although the applicant was involved in the preparatory work on the reorganization, he did not have an opportunity to make known his point of view on the particular measure which directly affected him, that, in breach of the Staff Regulations, the administration delayed giving the applicant a communication in writing until he had already been performing his new duties for almost a month, and that the only reference in the communication to the grounds on which the measure was based was that which was made concerning the general reorganization of all the departments in the directorate-general. In these circumstances, the applicant, who made his application before the judgment from which the Commission has taken most of its arguments, should not be penalized for having brought the matter before the Court in order to obtain a review of the effect of this lack of consideration on the legality of the decision.
21. It is therefore fitting to apply the second subparagraph of Article 69 (3) of the Rules of Procedure, which provides that the Court may order even a successful party to pay costs in proceedings which have arisen as a result of its own conduct.
On those grounds, THE COURT (Second Chamber) hereby:
1 Dismisses the application;
2 Orders the Commission to pay the costs, including those of the applicant.