JUDGMENT OF 21. 6. 1984 — CASE 69/83 LUX / COURT OF AUDITORS

In Case 69/83

THE COURT (Second Chamber) composed of: K. Bahlmann, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General : P. VerLoren van Themaat Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

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

I — Facts

On completion of his legal studies in Luxembourg, Aix-en-Provence and Paris, the applicant took the oath of avocat on 4 June 1969 in Luxembourg. Whilst in practice as an avocat, he underwent training in a notary's office, also in Luxembourg, and worked on the Conference for the accession of the new Member States at the General Secretariat of the Council of Ministers.

He was appointed as an official in the Commission's Legal Department on 25 June 1973, where he performed the duties of an administrator until 1 August 1978, when he was appointed to a post of administrator at the Court of Auditors. In that post he was obliged initially to perform both administrative and auditing tasks. He was appointed as a principal administrator in the Legal Department with effect from 20 January 1980.

On 15 January 1981 the Legal Department was transferred to the President's Sector, of which it still forms part.

On 24 March 1983 the Court of Auditors decided to change the allocation of posts provided for in the budget as between the President's Sector and the Staff and Operational Expenditure Sector. Pursuant to that decision, it transferred a post of principal legal administrator from the President's Sector to the Staff and Operational Expenditure Sector. By decision of 14 April 1983 the President of the Court of Auditors changed the applicant's posting by reassigning him, with effect from 15 April 1983, from the President's Sector to the Staff and Operational Expenditure Sector.

II — Written procedure

On 26 April 1983 the applicant lodged a complaint with the appointing authority of the Court of Auditors, that is to say, with the President. At the same time he made an application to the Court, together with an application for the adoption of interim measures; both applications were received at the Court Registry on 28 April 1983.

The President of the Second Chamber dismissed the application for the adoption of interim measures essentially on the ground that the applicant had failed to establish the urgency of a measure suspending the operation of the decisions adopted; consequently, the proceedings continued with regard to the main application.

The written procedure followed its normal course.

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 preparatory inquiry.

However, the Court requested the defendant to produce the minutes of the meeting held by the Court of Auditors on Thursday 24 March 1983 or, at the very least, a certified copy of the passage in the minutes relating to the allocation of posts as between the President's Sector and the Staff and Operational Expenditure Sector and, in particular, to the transfer of a post of principal legal administrator from the President's Sector to the Staff and Operational Expenditure Sector. The Court also asked the defendant for a description of the duties performed by the applicant before and after his reassignment and for a description of the duties performed by Mr Marty-Gauquié as from 14 April 1983.

The Court also summoned Jean-Aimé Stoll, Secretary General of the Court of Auditors, and Gérald Coget, Head of the Staff Expenditure Division, to appear at the hearing in order to answer any questions which the Court might wish to put to them.

III — Conclusions of the parties

The applicant claims that the Court should:

“A) Primarily,

1) Declare the application admissible and well founded;

2) Consequently:

a) annul the decision of the Court of Auditors of 24 March 1983 changing the allocation of the posts as between the President's Sector and the Staff and Operational Expenditure Sector and in particular transferring a post of principal legal administrator from the President's Sector to the Staff and Operational Expenditure Sector;

b) annul the decision of the President of the Court of Auditors of 14 April 1983 changing the applicant's posting and assigning him to the Staff and Operational Expenditure Sector;

c) annul the decision of 27 April 1983 rejecting his complaint in that regard;

d) order the defendant to pay the costs;

B) In the alternative,

1) Declare the application admissible;

2) Before considering the substance of the case, and by way of measures of inquiry, order the production of the documents referred to in the application and summon Jean-Aimé Stoll, Albert Leicht and Gerald Coget to give oral evidence concerning the points referred to in the application.

The defendant contends that the Court should:

“Declare the application admissible and unfounded; Order the applicant to pay the costs, including those of the proceedings relating to the application for interim measures.”

IV — Submissions and arguments put forward by the parties during the written procedure

The applicant has put forward five submissions, which are examined below.

First submission:

Infringement of the first paragraph of Article 2 and the first subparagraph of Article 7 (1) of the Staff Regulations and of Article 7 of the Rules of Procedure of the Court of Auditors; lack of powers and disregard of the rules and general principles of law, in particular the principle patere legem quam ipse fecisti and the principle “donner et retenir ne vaut”

The applicant maintains that in circumstances such as those of the present case, in which a post is held by an official, it is clear from all the provisions referred to above that it is not for the Court of Auditors as a body to change the allocation of posts as between sectors, but for the President of the Court of Auditors to do so, acting in his capacity as appointing authority. It is clear that the post transferred is in fact held by an official, since there is only one post of principal legal administrator at the Court of Auditors, namely that occupied by the applicant. According to the applicant, before the contested decision was adopted by the Court of Auditors, it was always the President who decided whether to reallocate a post and the holder thereof, that is to say, whether to reassign an official together with his post. In those circumstances the Court of Auditors is wrong in its contention that there was first a reallocation of the posts provided for in the budget as between two sectors and then a decision to reassign the applicant. Similarly, the defendant's statements to the effect that what was involved was a transfer of posts provided for in the budget and that the post transferred was the only one corresponding to the specialism and qualifications of the applicant are irreconcilable.

The defendant, on the other hand, contends that, in accordance with Article 13 of the Rules of Procedure of the Court of Auditors, the Court “shall determine the structure of its departments. It shall allocate the posts among the sectors.” Accordingly, the adoption of the decision of 24 March 1983 transferring a post of principal administrator provided for in the budget from one sector to another was a matter for the Court of Auditors, whereas the adoption of the decision of 14 April 1983, assigning the applicant to the Staff and Operational Expenditure Sector was a matter for the President of the Court of Auditors, acting in his capacity as appointing authority.

The first submission is based simply on the confusion by the applicant of the “allocation of posts provided for in the budget” with the “posting of officials”. According to the defendant, the confusion is attributable to the fact that in other institutions the appointing authority has the power both to allocate the posts provided for in the budget and to change the posting of officials. Finally, the defendant denies the applicant's contention that all the changes in posting prior to the one in question were effected by the President of the Court of Auditors and it claims that the examples set out in an annex to the application were concerned with exchanges of postings decided upon as part of the policy of staff mobility; the exchanges involved officials in the same grade and were effected between sectors which had corresponding budgetaiy posts at their disposal; that was not so in this case.

Second submission:

Infringement of the second paragraph of Article 25 and disregard of essential procedural requirements

The applicant contends that the decision in question, which adversely affects him, must state the reasons on which it was based. The decision of the Court of Auditors dated 24 March 1983 does not state the reasons on which it was based for the simple reason that it was not notified to him and came to his knowledge only because it was referred to in the decision of the President of the Court of Auditors dated 14 April 1983. The latter decision does not contain a statement of reasons which is sufficient for legal purposes since it does not state why the change in the applicant's posting is in the interests of the service. A statement of reasons setting out the circumstances in which the decision was adopted is particulary necessary in the present case, since the description of the duties pertaining to the applicant's post does not correspond to the nature of the duties performed in an auditing sector such as that to which he was transferred despite the fact that normally he would not have been able to obtain a post in Career Bracket A 5/A 4 in such a sector, since he does not possess six years' experience in work connected with auditing.

According to the applicant, the defendant wrongly contends that the decision of 24 March 1983 is a general decision because, first of all, at the express request of the President, the Secretary of the Court of Auditors personally informed the applicant of the decision and, secondly, if the defendant's arguments were correct, every decision reassigning an official together with his post would be of general application and would not therefore have to be notified in writing to the official concerned. As regards the argument to the effect that the President's decision contains a sufficients statement of reasons based on the interests of the service and on those of the applicant, by virtue of the reference to the decision of the Court of Auditors of 24 March 1983, the applicant takes the view that those considerations were conceived after the decision was taken and are without foundation since the interests of the service were not taken into account, as the applicant intends to demonstrate in his fourth submission.

The defendant maintains first of all that the decision of the Court of Auditors of 24 March 1988 is a general organizational measure, which moreover was notified to the applicant himself by the Secretary of the Court of Auditors. As regards the decision of the appointing authority of 14 April 1983, which admittedly was an individual decision, it was necessary for it to state the reasons on which it was based only if it adversely affected the applicant, which, in the defendant's view, was not the case. Furthermore, the interests of the service and those of the applicant provided sufficient reason for the adoption of the decision. The decision is clearly in the interests of the service since the nature of the auditing tasks carried out in the Staff and Operational Expenditure Sector indicates that a legal administrator is needed there and, moreover, the manner in which the tasks assigned to that sector had been accomplished in the last three years without the assistance of a lawyer had not been entirely satisfactory. The decision is also unquestionably in the interests of the applicant from the point of view of both his ability to perform the tasks which will be entrusted to him — since he has always held himself out also as a specialist in the verification of the legality of staff and operational expenditure as well as in budgetary and financial law — and the opportunities for advancement in the sector in question. Finally, the applicant disregards the case-law of the Court concerning the duty to state the reasons on which a decision is based, inasmuch as the Court has held that the second paragraph of Article 25 of the Staff Regulations is satisfied if the circumstances in which the contested measure was adopted make it possible for the person concerned to recognize the essential factors which guided the administration in its decision, which is the case here (see, in particular, the judgment of the Court of 1 June 1983 in Joined Cases 36, 37 and 218/81, Seton, [1983] ECR 1789, and of 14 July 1983 in Case 176/82, Nebe, [19831 ECR 2475).

Third submission:

Infringement of Articles 4, 7 and 29 of the Staff Regulations, breach of the rules and general principles of law, in particular those governing the reassigment of an official together with his post and the principles of sound administration and consistent internal organization

The applicant reaffirms that the reassignment of the applicant together with his post is unlawful, since it necessarily involves in the present case, contrary to the essential purpose of such a reassignment, a substantial change in the duties of the applicant, inasmuch as he was transferred from an administrative sector to an auditing sector. Moreover, the reassignment of the applicant is unlawful for the further reason that there is no definition whatsoever of the new tasks which he is required to perform and the tasks themselves are lacking in substance. The applicant considers that proof of his contentions lies first of all in the fact that Mr Leicht, who was at the time the Member in charge of the auditing sector in question, and Mr Coget, the applicant's new head of division, told him that they needed an auditor and not a lawyer, secondly, in the fact that in the first six months in his new posting he had been given no work for four months, had been on leave for a month and had actually worked for only a month and, thirdly, that the head of division had informed him that he did not know of any legal subjects which could be included in the work programme for the audits to be carried out in 1984 and had asked him to find subjects.

Finally, the applicant claims that the situation is temporary inasmuch as it would be difficult for him in the long term to perform his legal duties in an auditing sector in view of the working method, known as the systems-based approach, which is practised at the Court of Auditors.

The defendant is therefore faced with a dilemma. Either it entrusts the applicant with auditing tasks, in which case there is a substantial change in his duties and the reassignment of the applicant together with his post is unlawful, or else it entrusts the applicant with legal duties, in which case his presence in the sector to which he has been transferred serves no useful purpose, his tasks there are lacking in substance and his reassignment is therefore unlawful, as is clear from the Court's judgment of 9 July 1981 in Joined Cases 59 and 129/80, Turner, [1981] ECR 1883.

The defendant maintains that the reassignment of the applicant together with his post has not led to a substantial change in his duties since he will continue to perform legal duties, but as a member of an auditing team. In that connection, the defendant observes that in 1978, in his capacity as administrator in the auditing sector of which Mr Leicht was in charge, the applicant was involved, at least to a certain extent, in carrying out audits. In view of the fact that the applicant was not reassigned purely for reasons of administrative convenience, his reassignment is valid particularly since, in the light of his training and experience, he is not manifestly unsuited to the tasks entrusted to him, and the Turner, judgment is therefore inapplicable in the present case. The defendant also states in this connection that the assessment of an official's abilities is a matter for the administration.

Furthermore, the tasks entrusted to the applicant in the Staff and Operational Expenditure Sector are not lacking in substance. On the contrary, there is a specific need for a lawyer in that sector and the fact that there is no description of the duties attaching to the post is immaterial since no such description exists for any post at the Court of Auditors, inasmuch as those duties are standardized in view of the need to keep abreast of developments in auditing. Moreover, there is no legal obligation on the part of a Community institution to describe the duties of its staff in the form of a detailed list of posts, but only to determine the allocation of posts provided for in the budget.

The defendant contends that the applicant's argument to the effect that he would be unable to apply for a post of principal administrator in an auditing sector on the ground that he does not possess six years' relevant experience is based on a notice of competition, which cannot be regarded as a description of the duties attaching to a career bracket.

Finally, as regards the applicant's contention that his work is lacking in substance, the defendant considers that he seriously underestimates certain of the duties and obligations incumbent upon him and is surprised that, in spite of his obligations under the Staff Regulations, he boasts of his scant activity and bases his arguments upon it.

Fourth submission:

Infringement of Article 7 (1) of the Staff Regulations and breach of the rules and general principles of law, in particular the principle of sound administration and the principle that every administrative measure must be based on legally acceptable grounds, that is to say consistent and relevant grounds which are not vitiated by errors of fact or law or both

According to the applicant, it is in the interests of the service that he should remain in the Legal Department, a posting which is justified by his training and experience and is in conformity with the notice of competition on the basis of which he was recruited. Since the President's decision of 14 April 1983 confirms that the post held by the applicant — which is a post specifically allocated to the Legal Department — is the only post corresponding to his qualifications, it is in the interests of the service that he should not be removed from the Legal Department, especially at a time when its workload is particularly heavy.

On the other hand, the Staff and Operational Expenditure Sector does not deal with legal problems since in the last three years it has not submitted a single request to the Legal Department for a legal opinion concerning an auditing problem.

Next, the applicant observes that he lacks the necessary qualifications to apply for a post in an auditing sector since the relevant vacancy notices always require at least six year's auditing experience. Consequently, it cannot be in the interests of the service for the applicant to be entrusted with tasks for which he lacks the necessary qualifications.

Finally, the applicant contests the defendant's reasoning on the following grounds:

In the first place, he points out that the defendant's argument is contradictory inasmuch as, whilst claiming that the assignment of a lawyer to the Staff and Operational Expenditure Sector is in the interests of that sector — although it acknowledges that the sector already has five lawyers at its disposal — it takes the view that the interests of the Legal Department do not require that the applicant and his post should remain there, which moreover is tantamount to denying the very existence of the Legal Department.

Secondly, that argument concerning the Legal Department is also at variance with the note issued by the President of the Court of Auditors on 14 April 1983 informing his sector that in future Mr Marty-Gauquié would be responsible for assisting the Secretary of the Court of Auditors in relation to tasks coming within the province of the Legal Department.

Thirdly, there was a vacant A 5/A 4 post in the President's sector which could have been transferred to the auditing sector of which Mr Leicht was in charge.

Fourthly, before the decision to reassign the applicant together with his post was adopted, no comparative assessment was made of the requirements of the department in question since, according to the applicant, that question was not even on the agenda of the meeting held by the Court of Auditors on 24 March 1983 and was not discussed at all at that meeting.

The defendant maintains essentially that the allocation of its staff and the decision to allocate a post of lawyer to the Staff and Operational Expenditure Sector are matters falling within its absolute discretion. Furthermore, the assignment of a lawyer to that sector is clearly in the interests of that sector, if only in view of the nature of the auditing tasks carried out there.

The defendant challenges the arguments put forward by the applicant on the ground that he relies on certain vacancy notices in support of his contention that he lacks the necessary qualifications to carry out his new tasks, whereas, according to the case-law of the Court of Justice, an official “cannot rely ... upon conditions of admission to another ... competition, which was organized according to different procedures and which pursued a different aim ...”.

Moreover, the interests of the Legal Department did not require the applicant to remain there since the Secretary of the Court of Auditors, who is in charge of that department, may call on any official who has a legal background to assist him, either temporarily or permanently, and therefore it is for the appointing authority to decide whether or not to assign to that department an official specifically for the purpose of assisting the Secretary.

As regards the increase in the workload of the Legal Department — which in the applicant's view justified his retention in that department — the defendant agrees that, whilst that state of affairs cannot be disputed, it is to a large extent attributable to the actions which the applicant has himself brought before the Court of Justice and which he cannot therefore deal with.

Finally, the defendant emphasizes that, although the purpose of the Staff Regulations is to guarantee an official the grade which he has reached and a post corresponding to that grade, it docs not entitle him to a specific post. Similarly, an official cannot rely on his personal interest in order to prevent the adoption by the appointing authority of measures for the organization of its departments.

Fifth submission:

Misuse of procedure and of powers

The applicant maintains in the first place that, in so far as the decisions adopted constitute an unlawful reassignment of the applicant together with his post, the consequences of which are illogical and contradictory, the conclusion must be drawn that the procedure followed conceals the fact that he was compulsorily transferred.

Secondly, the applicant maintains that, in so far as the two decisions adopted were not taken in the interests of the service, they raise a presumption of a misuse of powers.

That presumption is supported, according to the applicant, by several factors:

In 1982 the President of the Court of Auditors requested Mr Stoll on two occasions to inform the applicant that he would be transferred to another department unless he withdrew two actions which he had brought before the Court of Justice.

On 7 October 1982 Mr Marty-Gauquié was recruited as a temporary servant, officially as a replacement for Mr Ruppert, and was seconded to the office of the President of the Court of Auditors, although the President had made it clear to him that he would be required to deal with other administrative and legal matters. It was Mr Marty-Gauquié who took the applicant's place in the Legal Department.

On 9 March 1983 the President of the Court of Auditors severely criticized Mr Stoll in connection with two memoranda from the Legal Department, objecting in particular to the fact that those memoranda, which were signed by Mr Stoll, also bore the initials of the applicant, and he made it clear that all the differences of opinion regarding the conception of the Legal Department's role would be settled on his return after the weekend. On 15 March 1983 the President informed Mr Stoll, without the applicant being present, that the applicant was to be transferred and that his place was to be taken by Mr Marty-Gauquié. The applicant emphasizes the importance of this fact and claims, in spite of the defendant's denials, that he helped to draft the memoranda in question.

It is clear therefore from all those factors that the two decisions in question constitute a disguised disciplinary measure directed against the applicant.

The defendant maintains that the applicant underestimates the wide margin of discretion conferred upon the appointing authority by the Staff Regulations and confirmed by the decisions of the Court of Justice. Furthermore, it emphasizes that, as it has shown, the contested decisions are in the interests of the service and of the applicant and cannot therefore be regarded as constituting a misuse of procedure or of powers.

The defendant considers that the factors relied upon by the applicant call for the following observations:

As regards the threat of a transfer, the defendant emphasizes that the President and the Secretary of the Court of Auditors often have informal and confidential discussions and that, in those circumstances, even on the assumption that the President had expressed the views imputed to him by the applicant, they should be assessed in the context of those meetings. Furthermore, since the President was not empowered to transfer the post held by the applicant, “it is difficult to see why he should have uttered a threat against the applicant which he would be unable to carry out”.

The view that the applicant was replaced by Mr Marty-Gauquié must be rejected because the post provided for in the budget and held by the applicant was reassigned together with the applicant.

As regards the contention that the President criticized the applicant on 9 March 1983, such criticism was neither severe nor directed against the applicant. Nor could it have been directed against him since it was concerned with work in which the applicant had not participated.

V — Replies to the question put by the Court

In response to the Court's request to submit a description of the duties performed by the applicant before and after his transfer and of those performed by Mr Marty-Gauquié as from 14 April 1983, the defendant points out in the first place that it is not the policy of the Court of Auditors to describe the tasks of its officials but only the posts provided for in the budget.

Subject to that proviso, the defendant gave a description of both the duties performed by the applicant and those performed by Mr Marty-Gauquié.

The defendant states that, when the applicant was assigned to the Secretariat of the Court of Auditors, his sole task was to assist the Secretary. In that capacity, the applicant helped to draw up legal opinions on a wide range of matters, including the drafting of legislation. He also assisted the Secretary of the Court of Auditors by acting as his representative on the institution's advisory committee on purchases and contracts. Finally, he took part in certain meetings of the heads of department and of the Staff Regulations Committee, at which the Court of Auditors was represented by its Secretary.

The defendant recalled the reasons for the reassignment of the applicant to the Staff and Operational Expenditure Sector and stated that, in that sector, he was responsible for the following matters:

Acting as legal adviser to the division: In that capacity he was entrusted with several matters on which legal studies were to be undertaken.

Expediting auditing tasks involving legal matters: In that capacity he was entrusted with the task of carrying out an inquiry into the payment of dependent child allowances and into ad personam grades. Furthermore, in the first months of the 1984 financial year, he was entrusted with the task of carrying out an inquiry into the employment by the Joint Research Centre at Ispra of certain staff not subject either to the Staff Regulations oito the Conditions of Employment of Other Servants.

Undertaking legal studies from time to time in connection with audits in progress or in preparation within the sector: In that capacity he was entrusted with the preparation of an inquiry into “Di appalto” contracts, a study of the legal status of the sickness insurance scheme and a comparative study of the presentation by the various institutions of staff tables for the general budget.

As regards the duties performed by Mr Marty-Gauquié from 14 April 1983, the defendant recalls that, in his internal memorandum of the same date, the President of the Court of Auditors had expressly stated that Mr Marty-Gauquié was to “assist Mr Stoll in his duties as legal adviser, whilst continuing as far as possible to assist Mr Ruppert in monitoring relations with the other institutions”.

According to the defendant, the duties of Mr Marty-Gauquié, whose principal task still consists in dealing with “institutional relations”, which requires him regularly to attend meetings of the various bodies dealing with matters concerning the budget, were merely extended. Furthermore, after 15 April 1983, Mr Marty-Gauquié travelled to Brussels, Strasbourg and Paris on 11 separate occasions and spent 24 days on mission.

Mr Marty-Gauquié is also responsible for dealing with the “external relations” of the Court of Auditors, a task which consists in the organization of meetings to provide information on the activities of the Court.

Finally, since 15 April 1983, Mr Marty-Gauquié has also assisted Mr Stoll in his capacity as legal adviser by taking part in meetings of inter-institutional and Community bodies and by helping the legal adviser to draft certain memoranda setting out his opinion.

According to the defendant, therefore, Mr Marty-Gauquié did not take the applicant's place in the department responsible for the legal affairs of the Court of Auditors but merely placed his legal skills at the disposal of the President's Sector and of the Secretary of the Court.

Taking the view that the Court of Auditors did not confine itself to giving a description of the duties performed by Mr Lux and Mr Marty-Gauquié, the applicant requested and obtained the Court's permission to express his own view in that regard.

After again reminding the Court that he was initially assigned to an administrative sector, and not to an auditing sector, and was then reassigned to the President's Sector, and not to the Secretariat of the Court of Auditors, the applicant emphasized that whilst he was working , in the Legal Department he brought only one action before the Court of Justice, which was concerned merely with his classification.

As regards the duties performed by him since his reassignment, the applicant maintained that the work programme for 1983 adopted by the Court of Auditors did not assign to his division (Staff Expenditure) a single matter requiring a legal study to be undertaken. Such studies were not carried out until later “in response to the requirements of the case”. The matters referred to by the defendant came within the scope of the tasks performed by the Legal Department. Furthermore, the applicant made the following observations concerning those matters:

As regards the study concerning the dependent child allowance, the applicant drew up a report and, following an exchange of views with his head of division, the latter informed him on 23 September 1983 that further work on that subject had been suspended.

As regards the study on ad personam grades, the applicant drew up an initial report between 16 and 29 August 1983, worked on it for a further three days in September before drafting a summary on 4 October 1983; inquiries were carried out in the various institutions in November 1983 and the final report was submitted in January 1984.

Finally, the applicant was asked for an opinion on two occasions, although he was unable to deal with one request since it was not sufficiently precise.

As far as the applicant's work in 1984 is concerned, the study on “Di appalto” contracts did not constitute legal work connected with the auditing task entrusted to the applicant's division (Staff Expenditure). Moreover, it would have been more appropriate to assign that task to a specialist in Italian law who was able to speak Italian. As regards the subject proposed in the programme from July, namely a compilation of categories of Community staff, the applicant considered it to be somewhat questionable.

The applicant made the following remarks as regards Mr Marty-Gauquiés duties:

When the applicant was reassigned, a post of administrator was simultaneously transferred from the Staff and Operational Expenditure Sector to the President's Sector.

The Court of Auditors decided that Mr Marty-Gauquié was to assist Mr Stoll in his duties as legal adviser on the same day as that on which it decided to reassign the applicant together with his post.

Since 1 October 1983 Mr Marty-Gauquié had held the post of administrator which was transferred on 24 March 1983 in exchange for the applicant's post.

The post formerly held by Mr Marty-Gauquié, which had once been filled by Mr Ruppert, was now held by Mr Gentin. According to the applicant, therefore, Mr Marty-Gauquié's posting was “changed following the adoption of, and in accordance with, the contested decisions to enable him to take the applicant's place in the Legal Department”. The applicant contended in that regard that since 15 April 1983 Mr Marty-Gauquié had essentially devoted himself to his duties within the Legal Department whilst Mr Gentin had been entrusted with responsibility for institutional relations and for external relations.

VI — Oral procedure

At the sitting on 22 March 1984, the Court first of all heard the replies given by Mr Stoll and Mr Cogct to certain questions put to them by the Court and by the applicant. Subsequently, the parties presented oral argument and replied to questions put to them by the Court.

The Advocate General delivered his opinion at the sitting on 17 May 1984.

Decision

1. By application lodged at the Court Registry on 28 April 1983, Mr Charles Lux, an official in Grade A 5 at the Court of Auditors of the European Communities, brought an action for the annulment of the decision of the Court of Auditors dated 24 March 1983 changing the allocation of posts as between the President's Sector and the Staff and Operational Expenditure Sector and transferring a post of principal legal administrator from the President's Sector to the Staff and Operational Expenditure Sector and also the decision of the President of the Court of Auditors dated 14 April 1983 changing the applicant's posting and assigning him to the Staff and Operational Expenditure Sector of the Court of Auditors.

2. By a separate application, which was lodged on the same date, the applicant , sought an interim measure suspending the operation of those decisions.

3. On 20 May 1983 the President of the Second Chamber of the Court made an order dismissing the application for the suspension of the operation of the contested decisions.

4. It appears from the file on the case that, after performing the duties of administrator in the Legal Department of the Commission from 25 June 1973 to 1 August 1978, the applicant was appointed to a post of administrator at the Court of Auditors. In that post he was obliged initially to perform both administrative and auditing duties. Subsequently, with effect from 20 January 1980, he was appointed as an administrator in the Legal Department, which was transferred on 15 January 1981 to the President's Sector, of which it still forms part.

5. The applicant held that post until the adoption of the contested decision of 14 April 1983 assigning him to the Staff and Operational Expenditure Sector, which is an auditing sector.

6. In support of his application, the applicant puts forward five submissions: lack of power of the Court of Auditors to adopt the decision of 24 March 1983; inadequate statement of the reasons on which the decision was based; infringement of the guarantees provided for by Articles 4, 7 and 29 of the Staff Regulations of Officials inasmuch as the Court of Auditors may not reassign an official where the reassignment involves a substantial change in his duties, as in the present case; disregard of the interests of the service, contrary to Article 7 of the Staff Regulations; and, finally, misuse of powers.

7. It is clear from the documents relating to the case and from the views expressed at the hearing that the parties were essentially divided on two issues, namely whether the defendant was empowered to adopt the contested decisions and whether, in adopting those decisions, it observed the rights and guarantees conferred on officials by the Staff Regulations and the case-law of the Court.

Division of powers within the Court of Auditors

8. The applicant contends that, since the post in question is held by an official, the power to change the allocation of posts as between sectors is vested not in the Court of Auditors as a collegiate body but in the President of the Court of Auditors acting in his capacity as appointing authority.

9. The defendant, referring to the distinctive nature of its internal organization, explains that, following a request from one of its Members for an additional lawyer to join his sector, it was necessary, under the Rules of Procedure of the Court of Auditors, first for the post provided for in the budget to be transferred by the Court acting as a collegiate body and, secondly, for the applicant to be assigned to that post by the appointing authority. Consequently, the Court of Auditors, as a collegiate body, did not lack the power to adopt the first decision, since it was only the second decision which had to be adopted by the appointing authority.

10. The parties are agreed that what in fact took place was a transfer of the applicant together with his post from the President's Sector to the Staff and Operational Expenditure Sector. However, even though that transfer may be viewed as an individual decision, the applicant's arguments cannot be accepted.

11. In his arguments the applicant fails to take account of the distinctive nature of the Court of Auditors and, in particular, the fact that it functions on a collegiate basis, as is reflected in Article 13 of its Rules of Procedure, which provides as follows: The Court of Auditors has also stated, according to the minutes of the meeting held on 21 January 1982, that as regards the allocation of posts provided for in the budget it “has decided not to derogate in any way from Article 13 of its Rules of Procedure, according to which it shall itself allocate the posts provided for in the budget among the sectors”.

“Article 13 : Organization of departments

The Court shall determine the structure of its departments. It shall allocate the posts among the sectors.”

12. There is no doubt therefore that the transfer was carried out in accordance with the Rules of Procedure of the Court of Auditors, since first the Court adopted the decision to transfer a post from the President's Sector to the Staff and Operational Expenditure Sector and, subsequently, the President, acting in his capacity as appointing authority, appointed'the applicant to that post.

13. Accordingly, the submission to the effect that the Court of Auditors was not empowered to adopt the decision of 24 March 1983 must be rejected.

Observance of the guarantees given to officials

14. Before all the objections raised by the applicant in this connection are considered, it should be pointed out that, since the contested decisions involve the reassignment of an official, they are not subject to the formalities laid down by Articles 4 and 29 of the Staff Regulations.

15. Thus, the arguments put forward by the applicant are in substance that the decision of 24 March 1983 did not state the reasons on which it was based, that the reassignment of the applicant was contrary to Article 7 (1) of the Staff Regulations since he was transferred from an administrative sector to an auditing sector in disregard of the interests of the service and of the principle of assignment to an equivalent post and, finally, that the decision constitutes a misuse of powers.

16. Since the purpose of the duty to state the reasons on which a decision is based is, inter alia, to provide the party concerned with the necessary information to enable him to ascertain whether or not the decision is well founded, it is appropriate to begin by examining the two contested decisions in order to determine whether they are well founded.

17. As a preliminary remark, it must be pointed out that the Court has held that the Community institutions have a broad discretion to organize their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition however that the staff are assigned in the interests of the service and in conformity with the principle of assignment to an equivalent post.

18. The applicant's submissions must therefore be considered in the light of these principles.

Interests of the service

19. According to the applicant, the interests of the service demand that he should not be moved from the Legal Department at a time when the workload of that department is particularly heavy and the Staff and Operational Expenditure Sector does not require an additional lawyer; that is particularly true since he personally lacks the necessary qualifications for assignment to an auditing sector.

20. That argument cannot be accepted. Not only does the Court of Auditors have complete discretion with regard to the posting of the staff at its disposal, but it is also clear from the file on the case and, in particular, from the statements made at the hearing that it was the Member responsible for the Staff and Operational Expenditure Sector who requested the allocation of a post of lawyer to that sector. It is also clear from the file that in the period between the date on which he entered the service of the Court of Auditors at the end of 1978 and 20 January 1980, when he was appointed to a post in the Legal Department, the applicant had already been assigned to the same auditing sector as that to which he has now been reassigned.

21. Furthermore, reference must also be made to the distinctive nature of the Court of Auditors. In order to cany out its audits the Court of Auditors has decided to adopt a system-based approach, which consists in evaluating systems rather than their effects and involves an analysis not only of internal controls but also of the budgetary procedures to which they relate. Consequently, the audit which it carries out relates to both the regularity and the legality of the financial management of the institutions.

22. It follows that the work of the Court of Auditors demands the permanent presence of staff competent in both legal and auditing matters. Therefore the applicant's contention that it would have been in the interests of the service to recruit an auditor and not a lawyer for the Staff and Operational Expenditure Sector is incorrect.

23. Furthermore, when he applied for the post advertised in Vacancy Notice No CC/A/22/79, the applicant referred to his experience in auditing staff expenditure having regard to the legality and the regularity thereof. In those circumstances, although his application for that post was unsuccessful, there is no justification now for the applicant's claim that he lacks the qualifications necessary to perform the duties of principal administrator in the Staff and Operational Expenditure Sector, which is an auditing sector.

Assignment to an equivalent post

24. The applicant also maintains that the principle of assignment to an equivalent post has been contravened inasmuch as, either the applicant continues to perform duties which are essentially of a legal nature, in which case they are lacking in substance, or else he is entrusted with auditing tasks, in which case there is a substantial change in his duties and his reassignment in unlawful.

25. In that regard, it is appropriate to refer in the first place to the remarks made earlier concerning the distinctive organization of the Court of Auditors, which entails the rejection of the distinction between legal duties and auditing duties, and the fact that the applicant had already worked in the same auditing sector in the past.

26. Moreover, it is clear from the file on the case and in particular from the statements made at the hearing that the tasks assigned to Mr Lux are by no means insignificant and that, on the contrary, it was the applicant who initially failed to show in his work the willingness and enthusiasm which an institution is entitled to expect from a responsible official.

27. Therefore, in the light of the foregoing considerations, the applicant's third and fourth submissions must be rejected.

Misuse of powers

28. In support of this submission, the applicant maintains that the contested decisions constitute a disguised disciplinary measure inasmuch as in 1982 the President of the Court of Auditors allegedly made it clear to him that he might be transferred to another department unless he withdrew two actions which he had brought before the Court of Justice. That intention was confirmed by the recruitment of a temporary servant who, according to the applicant, was to take his place in the Legal Department and by the fact that the President had criticized him in connection with two memoranda concerning a recommendation to “proceed with the matter in any event”.

29. Before this submission is considered, it should be pointed out that the applicant's last-mentioned argument must be rejected since it is clear from the statements made at the hearing that the criticisms in question referred not to the two memoranda concerning the recommendation to “proceed with the matter in any event”, but to certain memoranda assessing the professional experience of an official.

30. As the Court has repeatedly held (see, in particular, its judgment of 5 May 1966 in Joined Cases 18 and 35/65, Gutmann, [1966] ECR 103), a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent, to have been taken for purposes other than those stated.

31. It is clear from the file on the case and, in particular, from the statements made at the hearing that the applicant has been unable to demonstrate convincingly that the President of the Court of Auditors intended to take disciplinary action against him. Consequently, since he has been unable to adduce sufficient evidence that the appointing authority pursued any objective other than a legitimate objective, the applicant must also fail in his fifth submission.

Failure to state adequate reasons

32. The applicant considers, in the first place, that the decision of the Court of Auditors of 24 March 1983 did not state any of the reasons on which it was based and was, moreover, not notified to him and, secondly, that the President's decision of 14 April 1983, which simply referred to the previous decision and to the interests of the service, did not contain an adequate statement of the reasons on which it was based.

33. The defendant contends that the decision of 24 March 1983 did not have to state the reasons on which it was based since it was a general decision. It maintains that the decision adopted by the appointing authority, on the other hand, did state the reasons on which it was based, albeit concisely, by virtue of the reference to the interests of the service and to those of the applicant and that, in the circumstances, the reasons stated were sufficient.

34. Since the measure at issue in the present case is concerned with departmental organization and was adopted, as has been shown above, in the interests of the service and in conformity with the principle of assignment to an equivalent post, the duty to state the reasons on which it was based must be viewed in the light of the discretionary power enjoyed by the appointing authority in this area and the incidental nature of the disadvantages which such a measure may entail for the official concerned.

35. Although the internal organization of the Court of Auditors made it necessary to resort, for the transfer of the post in question, to a procedure involving first a decision by the Court of Auditors as a collegiate body and then a decision by the appointing authority, the distinctive nature of that internal organization cannot justify a derogation from the requirements laid down by the second paragraph of Article 25 of the Staff Regulations, which provides that any decision adversely affecting an official must state the grounds on which it is based.

36. Thus, the reasons stated in the decision of the appointing authority of 14 April 1980, viewed in themselves, are clearly insufficient. However, in order to decide whether the requirements of Article 25 have been satisfied, it is appropriate to take into consideration not only the contested decision but also the circumstances surrounding its adoption. Since the purpose of the duty to state the reasons on which a decision is based is both to permit the person concerned to determine whether the decision contains a defect allowing its legality to be challenged and to enable it to be reviewed by the Court, it follows that the extent of that duty must be determined on the basis of the particular facts of each case.

37. In this case, it is clear from the file on the case that, in the light of his career at the Court of Auditors and the distinctive nature of that institution, which entails in particular a tendency towards standardization of tasks and staff mobility, the applicant might have expected the Court of Auditors to transfer him to another sector, particularly in view of the communications transmitted to him by the Secretary General and the discussions which took place between them.

38. In those circumstances, since the measure in question is connected with internal organization in the interests of the service, in respect of which the competent authority must necessarily enjoy a broad discretion, the contested decision, set in its context, cannot be regarded as vitiated by an infringement of essential procedural requirements justifying its annulment.

39. It follows from the foregoing considerations that the application for annulment is unfounded and must be rejected.

Costs

40. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.

41. However, under Article 69 (3) of the Rules of Procedure, the Court may order even a successful party to pay costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur. In this case, the Court of Auditors, by failing to provide the applicant with a proper and express statement of the reasons for his transfer, contributed to a very large extent to the dispute which gave rise to this action. In those circumstances, the defendant must be ordered to pay the costs.

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

1 Dismisses the application;

2 Orders the Court of Auditors to pay the whole of the costs, including those of the applicant.