JUDGMENT OF 27. 1. 1983 — CASE 263/81 LIST v COMMISSION

In Case 263/81

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges, Advocate General: Sir Gordon Slynn 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 — Facts and procedure

The applicant worked from 1974 in the translation group of the Administrative Commission on Social Security for Migrant Workers, where from 1975 he carried out the duties of coordinator of the German translation group. Following difficulties in working with his colleagues it was decided in 1977 to relieve him of his duties. Shortly afterwards he was assigned to the Task Force for Negotiations with Portugal but that assignment was rescinded three months later and pending a fresh assignment he was placed at the disposal of Mr Ciancio, Director responsible for Translation, Documentation, Reproduction and the Library. In Case 124/78 Mr List claimed that those three decisions and other decisions relating thereto should be annulled. In its judgment in that case (judgment of 12. 7. 1979 [1979] ECR 2499), the Court held that the withdrawal from the applicant of his duties as coordinator and the refusal to make him responsible in the absence of his superiors did not adversely affect his position under the Staff Regulations and constituted simply internal administrative measures which could not be the subject of an action. Even though the applicant sought to be protected against the alleged machinations of certain colleagues, the measures were justified when a reconciliation between the applicant and his colleagues was found to be impossible, and they did not constitute an infringement of the obligation to provide assistance incumbent upon the administrative authority under Article 24 of the Staff Regulations. Furthermore, albeit for procedural reasons and without considering the substantive issues raised, the Court confirmed the placing of the applicant at Mr Ciancio's disposal.

In 1978, before that case was closed, the applicant lodged a complaint that the work entrusted to him by Mr Ciancio, the director, was of an inadequate level and quantity. That complaint was dismissed and the applicant did not bring the matter before the Court.

In February 1981 the applicant was placed at the disposal of Directorate General II. On 26 February he lodged a complaint that he had been left without work since 1 October 1979 and that when he obtained a new appointment it involved translation work of insufficient quantity, whereas he was a reviser in Grade LA 4. The complaint was registered at the Secretariat General of the Commission on 3 March 1981.

The applicant applied for the posts of head of group published in Vacancy Notices Nos COM/895 to COM/934/80.

Vacancy Notices Nos COM/895 to 901/80 were worded as follows:

“Category and Career Bracket LA 4/LA 5 ... Department: II-C 4 Directorate General: Personnel and Administration Directorate : Translation, Documentation, Reproduction and Library Division : Translation —German Specialized department: Place of employment: Brussels, Basic post Title of the post: Head of Translation Group Description and nature of duties : Direction of the work of a specialist translation group; Responsibility for the translation and revision of important documents; Responsibility for ensuring the further training of members of the group. Qualifications required: 1. Studies at university level culminating in a certificate or experience at an equivalent level; 2. Thorough experience of the organization, coordination and rationalization of translation work; 3. Ability to direct a translation group; 4. Thorough experience of translation and revision work. Languages required: Thorough knowledge of German; Very good knowledge of two other languages of the Communities. ...”

Vacancy Notices Nos COM/902 to 934/80 related to posts of the same kind but in language groups other than the German groups.

Upon learning in March 1981 that his application had been rejected and knowing that his periodic report for the years 1977 to 1979 had not been made available to the appointing authority, the applicant on 20 March 1981 lodged a fresh complaint relating to the rejection of his application and the delay in compiling his periodic report. That complaint was registered at the Secretariat General on 23 March 1981.

Since neither complaint evoked any response, the applicant brought this action on 30 September 1981.

On 24 September 1981, during the written procedure, the Commission rejected the applicant's complaint regarding the small amount of work required of him and his secondment to Directorate General II, but decided to reconsider his application for the posts of head of group when his periodic report for the years 1977 to 1979 had been sent to him pursuant to Article 43 of the Staff Regulations to enable him to add any comments which he considered relevant.

It appears from a memorandum from Mr Ciancio dated 11 December 1981 that once that condition had been satisfied Mr Ciancio reconsidered the applications in question but did not think that the applicant could be appointed. As regards Vacancy Notices Nos COM/895 to 901/80, the reason given was that, although the applicant had been first reviser in a small group of Germans working in the multi-language section concerned with migrant workers, he had never been responsible for planning the work of a group of the size of those which were the subject of the vacancy notices and which formed an integral part of a larger department, the size of which completely changed the nature of the problems. His application must be rejected in particular because his personal characteristics made him more suited to study than to management.

Subsequently, on 17 June 1982, the appointing authority adopted a decision confirming the rejection of the applicant's candidature.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General tlie Court decided to open the oral procedure without any preparatory inquiry. By letter dated 14 July 1982 the Court nevertheless asked the Commission to submit to it in writing before the hearing information as precise as possible about the level and quantity of work entrusted to the applicant in his present post and comparable information on the work entrusted to his two colleagues. The Commission was also asked to make available to the Court Vacancy Notices Nos COM/895 to COM/934/80 and the applicant's periodic report for the years 1977 and 1978.

As regards the quantity of work entrusted to Mr List and his two colleagues in Directorate General II, the Commission, by letter dated 8 October 1982, replied that in August 1982 Mr List had received 25 pages to be translated into German. His colleague, Mrs Tissot, who according to the information available to the Court is a translator in Grade LA 7, received in July 1982 23 pages to be translated into French, while his colleague, Mrs Gordon, who according to the same information is a translator in Grade LA 6, received during the same month 33 pages to be translated into English. The Commission added that those figures might be regarded as a normal month's work for the three translators assigned to Directorate General II and that the level of the translation work entrusted to them was basically comparable and in any event varied according to the documents to be translated: communications to the Council, minutes of committee meetings and press releases.

In its reply the Commission stated further that the periodic report for the period from 1 July 1977 to 30 June 1979 had been signed by the assessor on 8 June 1981, that the applicant had added his comments on 9 June 1981, that the report had been amended by the appeal assessor on 30 October 1981 and that the Joint Committee on Staff Reports, to -which the matter had been referred by the applicant, had met on 29 July 1982. Provisional minutes of that meeting were submitted to the Court but do not indicate the final result thereof.

II — Conclusions of the parties

On the basis of the explanations given during the oral procedure, the applicant claims that the Court should:

Annul the disguised disciplinary measure whereby the applicant was deprived of work during the period mentioned in the complaint of 3 March 1981;

In the alternative, order the defendant to pay to the applicant such sum as the Court shall think fit to determine ex aequo et bono in compensation for the damage, both material and nonmaterial, which the applicant has suffered;

Annul the reassignment of the applicant to Directorate General II in view of his working conditions there;

Order the defendant to pay by way of damages such amount as the Court shall think fit to determine ex aequo et bono for the material and nonmaterial damage suffered;

Annul the procedure relating to the appointment of heads of group following Vacancy Notices Nos COM/895 to 901/80, including appointments already made;

In so far as necessary, annul the implied rejection of the complaint of 23 March 1981;

In the alternative, order the defendant to pay to the applicant by way of damages such amount as the Court shall think fit to determine ex aequo et bono for the material and nonmaterial damage suffered;

Order the defendant to pay interest on such damages at the normal rate allowed by the Court as from the date on which the action was brought;

Order the defendant to pay the costs.

The Commission contends that the Court should:

Dismiss the application as unfounded;

Order the applicant to pay the costs.

III — Submissions and arguments of the parties

First submission : Misuse of powers

The applicant emphasizes first of all that he has been without work for a period of more than a year and that the work entrusted to him in Directorate General II is that of a translator, whereas he is a reviser and ought not to be called upon to do translations save in exceptional cases.

To deprive an official of work or to give him work corresponding to a lower grade than his own is an infringement of Articles 7 and 45 of the Staff Regulations and constitutes a disguised disciplinary measure, inasmuch as the formalities for disciplinary measures provided for in Annex IX to the Staff Regulations are not observed.

The Commission admits that there have been periods in which the applicant has been given relatively small quantities of work but adds that this has enabled him to devote a certain amount of time to his own further training. The Commission emphasizes further that the documents which the applicant was asked to translate were of an extremely technical nature or intended for publication without revision.

There is therefore no disregard of the principle that the post should correspond to the grade and no infringement of Article 45 of the Staff Regulations in the sense that the duties performed by the applicant have an adverse effect upon his career. There is thus no evidence of a disciplinary measure or any misuse of power.

Second submission: Infringement of Articles 5, 7 and 25 of the Staff Regulations

The applicant alleges that his secondment to Directorate General II, with the consequent demotion from the point of view of the duties which he performs, represents not only a new posting contrary to Articles 5 and 7 of the Staff Regulations, as argued in his first submission, but also on that account a measure adversely affecting him, which pursuant to Article 25 ought to have been notified to him in writing and been accompanied by a statement of the reasons on which it was based. The applicant is not opposed to working in Directorate General II but states that when he accepted that posting it was understood that he would be working as a reviser.

The Commission emphasizes first of all that the applicant — who, however, denies this — had ever) opportunity during the interviews with his superiors and with the assistant to the Director General of Directorate General II prior to his secondment to that directorate general to obtain information about the duties which would be entrusted to him and that he accepted the decision, after being informed that Directorate General II required a translator of German mother-tongue, with full knowledge of the duties which would be expected of him. Secondly, the applicant's secondment to Directorate General II is not a new posting but simply an internal administrative measure which in no way adversely affects the applicant's rights under the Staff Regulations. The measure did not affect his administrative posting since all non-legal translators working in the Commission are posted to the Directorate General for Personnel and Administration. They perform their duties either in translation divisions coming under Directorate IX C or in the various directorates general, but in the latter case they are attached for administrative purposes to Division IX/C/3 — Translation (General matters).

Third submission: Infringement of Article 45 of the Staff Regulations

The applicant emphasizes that it is common ground that his periodic report was compiled late. That very fact means that the applicant suffered material and nonmaterial damage. It follows further that, since the appointing authority did not have knowledge of the report when it reached its decision on the appointments to the posts of head of group, it could not compare the merits of the applicant with those of the other applicants. There was thus an infringement of the requirements of Article 45 of the Staff Regulations. Mr Ciancio's reconsideration of the application on 11 December 1981 is quite irrelevant. It ought to have been carried out by the ad hoc joint committee entrusted with drawing up the list of officials to be promoted and above all by the appointing authority. Furthermore, the reconsideration should have been postponed until the final report was available.

The Commission maintains that it is not possible to rely on Article 45 in this case since that article refers to promotions and not to applications for posts in the same career bracket (LA 4—LA 5) as that of the applicant. In any event, there was no material damage since appointment to the post would not have involved promotion.

Furthermore, the Commission agreed to reconsider the applicant's application in the light of his periodic report when it had been compiled and his comments had been appended. The adverse decision of the appointing authority shows that the absence of the said report was not a factor contributing to the unsuccessful outcome of his application.

IV — Oral procedure

The applicant, represented by M. Slusny, and the Commission, represented by J. Delmoly, acting as Agent, presented oral argument and answered questions put by the Court at the sitting on 14 October 1982.

At that sitting the Court (Second Chamber) was composed of A. Chloros, President, O. Due and K. Bahlmann, Judges. According to Article 27 (2) of the Rules of Procedure only those judges who were present at the oral proceedings may take part in the deliberations. Because of the death of A. Chloros, President of the Second Chamber, the Court, by order dated 19 November 1982, decided to reopen the oral procedure before the Second Chamber in its new composition and fixed a second sitting for 9 December 1982 at which the parties did not appear.

The Advocate General delivered his opinion at the sitting on 16 December 1982.

Decision

1. By application lodged at the Court registry on 30 September 1981 Harald List, an official of the European Communities in Grade LA 4, brought an action, on the one hand, for the annulment of certain measures taken by the Commission with regard to him and, on the other, for an order that the Commission pay damages for the material and nonmaterial damage caused by those measures.

2. The applicant took up employment with the Communities in 1961 and has been with the Commission since 1965. He was classified in Grade LA 4 with effect from 1 January 1973. In 1974 he was assigned to the translation group of the Administrative Commission on Social Security for Migrant Workers where he worked from the second half of 1975 as coordinator of the German translation group. Following difficulties in working with his colleagues it was decided in 1977 to relieve him of his duties; shortly afterwards he was assigned to the Task Force for Negotiations with Portugal. Since the applicant did not wish to translate into a language other than his main language, namely German, that assignment was revoked three months later and the applicant was placed at the disposal of Mr Ciancio, Director responsible for Translation, Documentation, Reproduction and the Library, pending a fresh assignment. In its judgment of 12 July 1979 (Case 124/78 [1979] ECR 2499) the Court dismissed an action brought by the applicant seeking, inter alia, the annulment of certain of the abovementioned measures.

3. In February 1978 the applicant lodged a complaint that the work entrusted to him by Mr Ciancio was of an inadequate quantity and level. That complaint was rejected and the applicant did not bring the matter before the Court.

4. On 20 February 1981 the applicant was seconded to Directorate General II. On 26 February 1981 he lodged a complaint that he had been deprived of work for a period of more than 12 months and that after being reassigned to Directorate General II he had received only translation work of insufficient quantity, whereas he was a reviser in Grade LA 4.

5. In the meantime the applicant had applied, inter alia, for posts of head of group in the German translation division advertised in Vacancy Notices Nos COM/895 to COM/901/80. Upon being informed in March 1981 that his application had been unsuccessful and knowing that his periodic report for the years 1977 to 1979 had not been made available to the appointing authority, the applicant lodged on 20 March 1981 a complaint relating to the rejection of his application and the delay in compiling his periodic report.

6. The contested measures, as described in the application and specified in the oral procedure, are as follows: The disguised disciplinary measure whereby the applicant was deprived of work for more than 12 months; The assignment of the applicant to Directorate General II in view of his working conditions there; The procedure relating to the appointment of heads of group following the aforesaid vacancy notices, including appointments already made.

The alleged disguised disciplinary measure

7. The applicant states that he was deprived of work from October 1979 until November 1980. To deprive an official of work is to affect him adversely and is thus a disciplinary measure. In the present case such a disciplinary measure is quite unjustified and, moreover, was taken without observance of the formalities for disciplinary measures provided in particular in Annex IX to the Staff Regulations.

8. The Commission has been unable to provide the Court with details of the amount of work entrusted to the applicant before his secondment to Directorate General II but admits that for a certain period his work load was minimal. It denies however that the applicant's work situation amounted to a disciplinary measure.

9. In the absence of sufficient information from the Commission it must be concluded that for a period of more than a year the applicant was left virtually without work. Although the difficulties previously encountered by the appointing authority in attempting to find a suitable posting for the applicant may justify a certain delay, there is no excluse for the administration's failure to find work for him for such a long period. However, whilst it must be admitted that the applicant has suffered from an abnormal administrative situation it cannot be equated with a disciplinary measure. The applicant has been unable to show that the Commission intended to penalize him in any way. Since the claims for annulment and for damages are linked in the applicant's conclusions to the existence of a disguised disciplinary measure, that finding is in itself a sufficient ground for the dismissal of the two claims.

The assignment to Directorate General II

10. The applicant alleges that his assignment to Directorate General II has involved demotion in so far as the level of his duties is concerned, inasmuch as the work entrusted to him in his new post is not only of an insufficient quantity but also of a level lower than that corresponding to his grade and previous post. That assignment thus constitutes a measure adversely affecting him, which according to Article 25 of the Staff Regulations should have stated the reasons on which it was based and been notified to him in writing. Moreover, it constitutes an infringement of Articles 5 and 7 of the Staff Regulations, whereby every official must bē assigned to a post corresponding to his grade.

11. The Commission emphasizes that the applicant agreed to the proposed secondment after having every opportunity during his meetings with his superiors to obtain information about the duties which awaited him. Moreover, the assignment did not adversely affect the rights of the applicant under the Staff Regulations since it was simply an internal administrative measure, as all nón-legal translators working at the Commission in Brussels are assigned to the Directorate General for Personnel and Administration. Therefore the decision in question cannot be regarded as a measure adversely affecting the applicant. Since the applicant agreed to perform his new duties with knowledge of the work involved, it follows that, if the requirement to state reasons and to give notification did apply, that requirement was met.

12. As regards the level and quantity of translation work in Directorate General II, the Commission, at the request of the Court, supplied information on the translation work entrusted to the applicant and his two colleagues, of whom one is of French and the other of English mother tongue during a month which the parties agree to be representative. It appears that during the month in question the applicant received 25 pages to translate while his two colleagues received 23 and 33 pages respectively. It is, moreover, apparent that the level of work entrusted to the three officials is largely comparable and consists of communications to the Council, minutes of committee meetings and press releases.

13. The Commission admits that the work does not include revision but states that either the texts are highly technical or the translations are intended to be published without revision. It also admits that the amount of work is far lower than the standard for translators working for the Communities but emphasizes that translators seconded to directorates general must be ready to produce translations at any time within extremely short periods.

14. The basic posts and corresponding career brackets for language staff are shown in Annex I to the Staff Regulations. It is apparent that Career Bracket LA 4 — LA 5 covers both the basic post of principal translator and that of reviser. The basic post of translator falls in Career Bracket LA 6 — LA 7. The descriptions of the functions and duties, which those basic posts involve are laid down by a Commission decision. It is apparent from that decision that the duties relating to those basic posts overlap to some extent.

15. There is no doubt that the appointing authority has, in the interests of the service, a wide discretion in allotting to officials who are members of the language staff translation and revision work which must be done at any particular time. Such discretion is indispensable in order to achieve effective organization of work and to adapt the organization to varying needs.

16. Nevertheless that discretion does not extend to the case where the official is solely or mainly occupied with duties which, in view of their character, their importance and their scope, are normally entrusted to officials of a lower grade.

17. It is apparent from the aforesaid description supplied by the Commission itself of the quantity and nature of the work entrusted to the applicant that such is the case here. That is, moreover, corroborated by the fact that the applicant's two colleagues in Directorate General II are both translators in Career Bracket LA 6 — LA 7 and that the request sent by the directorate general to the applicant's superiors concerned the secondment of a translator.

18. Since it has not been shown that the applicant agreed to be seconded to Directorate General II in those circumstances, that amounts to a measure adversely affecting him. Moreover, it was adopted in infringement of Articles 5 and 7 of the Staff Regulations.

19. The decision seconding the applicant to Directorate General II is therefore unlawful and must be annulled.

20. Since the applicant has not shown that by reason of that decision he has suffered damage capable of being compensated by a pecuniary award his claim for damages must, on the other hand, be dismissed.

The procedure relating to the appointment of heads of group

21. The applicant emphasizes that, since his periodic report for the years 1977 to 1979 had not been compiled when the appointing authority decided on the appointments for the posts of heads of group, the appointing authority could not compare the merits of the applicant with those of the other applicants. There was thus an infringement of Article 45 of the Staff Regulations. Mr Ciancio's reconsideration of the application on 11 December 1981 is irrelevant since it ought to have been carried out by the ad hoc joint committee responsible for drawing up the list of officials to be promoted and above all by the appointing authority itself. Furthermore, the reconsideration ought to have been postponed until the final periodic report was available.

22. The Commission maintains that it is not possible to rely on Article 45 of the Staff Regulations in the present case since that article is concerned with promotions and not applications for posts in the same career bracket (LA 4 — LA 5) as that of the applicant. Moreover, the Commission agreed to reconsider the application from the applicant in the light of his periodic report when it had been compiled and his comments had been appended. The confirmatory decision of the appointing authority adopted following that reconsideration shows that the absence of the said report was not a factor contributing to the original rejection of the application.

23. It appears from the file that the periodic report on the applicant for the years 1977 to 1979 was signed by the assessor on 8 June 1981, the applicant added his comments on 9 June 1981, the report was amended by the appeal assessor on 30 October 1981 and the Joint Committee on Periodic Reports, to which the applicant referred the matter, met on 29 July 1982. The Court has not been informed of any final result of that meeting.

24. Moreover, it appears from the file that the Commission decided during the written procedure to reconsider Mr List's application for the posts in question when his periodic report had been drawn up and notified to him. When that condition was satisfied Mr Ciancio proceeded on 11 December 1980 to reconsider the applications in question but took the view that Mr List's application could still not meet with success. Subsequently, on 17 June 1982, that is to say before the meeting of the Joint Committee on Periodic Reports, the appointing authority adopted a decision confirming the rejection of the application.

25. As the Court has already emphasized, inter alia, in its judgment of 5 June 1980 in Case 24/79 Oberthiirv Commission [1980] ECR 1743, the periodic report constitutes an indispensable criterion of assessment each time the official's career is taken into consideration by the administration. The fact that the procedure in question does not relate to promotion within the meaning of the Staff Regulations is therefore not decisive.

26. The Court has consistently held that such a procedure is tainted with irregularity in so far as the appointing authority has not been able to consider the comparative merits of the candidates because there has been a substantial delay on the part of the administration in drawing up the periodic reports of one or more of them.

27. It should, however, be emphasized that that does not mean that when the appointment decision is made all applicants must be at exactly the same stage regarding the state of their periodic reports or that the appointing authority must postpone its decision if the most recent report on one or other of the applicants is not yet final because it has been referred to the appeal assessor or to the Joint Committee. Furthermore, it should be noted that the Court, in a case in which a large number of appointments were challenged (interim judgment of 18 December 1980 in Joined Cases 156/79 and 51/80 Gratreau v Commission [1980] ECR 3943), emphasized that the fact that the personal file of one applicant was irregular and incomplete was not a sufficient ground for the annulment of the appointments unless it was established that this was capable of having a decisive effect on the appointment procedure.

28. In the present case there is no doubt that the applicant's periodic report for the years 1977 to 1979 was drawn up with considerable and inexplicable delay and for that reason the original appointment procedure was tainted with irregularity. On the other hand it is common ground that the appointing authority reconsidered the application after it received the periodic report and the comments appended thereto by the applicant. Moreover, in view of the circumstances of the case and above all the confirmatory decision which the appointing authority took following that reconsideration, there are no grounds for a finding that the absence of the periodic report was capable of having a decisive effect upon the original appointment procedure.

29. For those reasons it is necessary to dismiss the claims for annulment and damages based on the irregularity of the procedure relating to the appointment of heads of group following Vacancy Notices Nos COM/895 to 901/80.

Costs

30. Although the applicant has failed in the majority of his submissions, it is necessary for the purposes of costs to take account of the abovementioned considerations relating to the conduct of the defendant. It is apparent that the proceedings were induced by that conduct and by the lack of regard for the applicant which it demonstrated. It must be remembered that for a very long period the Commission gave the applicant only work of an insufficient quantity and level in spite of his complaints and in spite of his long experience and his undeniable and undenied ability and that the Commission has given no explanation to justify the considerable delay in drawing up his periodic report for the years 1977 to 1979. In those circumstances the applicant should not be penalized for requesting the Court to review the effect that those matters might have upon the lawfulness of the measures in question.

31. It is therefore appropriate to apply the second paragraph of Article 69 (3) of the Rules of Procedure, according to which the Court may order even a successful party to pay the costs in proceedings which have arisen as a result of the conduct of that party.

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

(1) Annuls the assignment of the applicant to Directorate General II;

(2) Dismisses the remainder of the application;

(3) Orders the Commission to pay the whole of the costs.