A.

The Commission submits that the action against the express rejection of the complaint is inadmissible because that act is a pure and simple confirmation of the decision which was complained of.

In reply the applicant argues that the express rejection contained a statement of the reasons on which it was based which was not to be found in either the decision concerning the posting itself or, by definition, the implied rejection of his complaint.

This is not however sufficient in the light of the Court's case-law since, as in the case of Nebe v Commission (judgment of 14 April 1970 in Case 24/69, [1970] ECR 145 at p. 151), whilst the express decision of rejection sets out the grounds of the original decision, it nevertheless contains no new factor relating to the position in law or in fact existing at the time of the implied rejection of that original decision.

Therefore — even taking into account the fact that as he took steps against the original decision within the period allowed, the applicant does not seek in his claim for the annulment of the express rejection of his complaint the reopening of the period within which a definitive decision must be contested — the express decision of rejection must in fact be regarded as a purely confirmatory act and the action against it must be dismissed as inadmissible.

B.

The Commission also raises an objection of inadmissibility in Case 33/79 in so far as it claims annulment of the letter from the Director-General for Personnel. This letter was in fact only confirmation of the decision concerning the posting which was already known to the applicant.

Although it twice purports to be a decision it is clear that that letter simply constitutes the. first written and official notification of the decision taken in June in regard to the applicant. It is therefore a confirmatory act which according to the Court's consistent case-law cannot be regarded as adversely affecting an official. An action against it is therefore inadmissible.

Similarly in my opinion the application for the annulment of the implied rejection of the applicant's complaint is, by analogy with the Court's judgment of 2 July 1969 (Case 27/68 Renckens v Commission [1969] ECR 255 at p. 262), inadmissible on the ground that it has lost its purpose since this complaint was expressly rejected by the Commission's decision of 21 March 1979.

Consequently the examination will concern solely the decision taken by Mr Tugendhat and Mr Ortoli pursuant to the measure of the Commission of 7 June 1978 assigning the applicant to his new duties.

A.

In fact, as the Commission rightly comments, this single submission covers not only the formal infringement of those provisions but also an alleged misuse of the Commission's powers.

The applicant alleges in fact that his new posting was not in the interests of the service. In his opinion the administration took advantage of the reorganization of the Statistical Office to remove him from his former duties. By saying this he is indeed implying misuse of powers since if this contention is well-founded, “the administration was not exercising its powers for the purpose prescribed for such a measure by the Staff Regulations” (judgment of 5 May 1966, Joined Cases 18 and 35/65 Gutmann ν Commission of the EAEC [1966 ] ECR 103 at p. 118).

In questions concerning misuse of powers the burden of proof is on the applicant who must prove the existence of “objective, relevant and concordant evidence”, of such a misuse of powers (judgment of 27 June 1973, case 35/72 Kley ν Commission [1973] ECR 679 at p. 691).

The file does not contain any evidence fulfilling these conditions.

B.

As regards the infringement of Articles 5 and 7 itself, the applicant contends that he has in fact been downgraded since his present duties are plainly inferior to his previous duties in regard both to their character and their importance and scope.

This comparison is a poor one because the applicant's present responsibilities must not be compared to his previous responsibilities but to “those corresponding to his grade and post, taking account of their character, their importance and their scope” (judgment of 20 May 1976, Case 66/75 Macevicius v Parliament [1976] ECR 593 at p. 604). One must therefore ask if in this particular case his current duties clearly fall short of what one may expect of a principal administrator.

It goes without saying that such an appraisal is difficult for a court to undertake. It can be seen from the case-law of this Court, Scuppa v Commission (judgment of 10 July 1975, Joined Cases 4 and 30/74 [1975] ECR 919 at p. 933) and Macevičius v Parliament (supra, at pp. 603-605), which in the opinion of (Dubouis, Revue Trimestrielle de Droit Européen, 1978, pp. 487-488) is excessively harsh on officials, that there cannot be a positive finding in this regard unless it is evident that the applicant's present responsibilities are of no more than minimal importance. Such a finding does not seem possible here.

C.

But the applicant is also complaining that Articles 5 and 7 of the Staff Regulations have been infringed owing to the fact that he has lost the duties of the head of a special department which he had had for five years.

Under Article 5 (4), “A table showing basic posts and corresponding career brackets is given in Annex I” (first paragraph). According to Annex I A to the Staff Regulations the post of principal administrator corresponds to career bracket A 5-A 4. “By reference to this table each institution shall ... define the duties and powers attaching to each basic post” (second paragraph). In its decision published in the “Staff Courier” of 4 September 1973, the Commission described the duties and responsibilities of principal administrators as follows: official in charge of one sector of activity in a division, head of a special department, higher official engaged in planning, advisory and supervisory duties, assistant to a head of division. Legally, the heads of special departments are therefore put on the same footing as other principal administrators.

On the other hand there is no denying that in its administrative practice the defendant has created a distinction between them and other officials in A 5-A 4. In various respects it has made heads of special departments equivalent to officials in Grade A 3.

It is true that the superior nature of the duties of the head of a special department compared to other A 5-A 4 postings is not attributable to the fact that the head of a special department is in charge of an administrative unit. To acknowledge this would mean denying the administration the possibility of transferring a head of a special department to other duties in career bracket A 5-A 4. Such a result would without any doubt impose an excessive limitation on the flexibility which administrations must enjoy in order to adapt to the changing requirements of their tasks and on the legal principle, which is the corollary of this, that the administration is alone responsible for the organization of its departments which the Court acknowledged in particular in its judgments of 20 May 1976(Macevicius v Parliament, supra, at p. 604) and of 14 July 1977 (Case 61/76 Geist v Commission [1977] ECR 1419 at p. 1434).

But the following factors demonstrate clearly that, as far as the Commission is concerned, heads of special departments in fact rank above other principal administrators:

This treatment on a footing with superiors applied outside the confines of the Staff Regulations seems to me to deserve all the more consideration from the point of view of the conclusions which must be drawn from the legal point of view because it occurs “in an organization where there is, as is well known, such a highly-developed consciousness of the chain of command” as Advocate General Trabucchi put it in his opinion on the case of Scuppa ν Commission (supra at pp. 943-4).

Indeed though in treating heads of special departments in the same way as other principal administrators and in putting them on the same level in the description of their duties, the Commission has acted in such a way that it cannot be accused of having infringed the letter of Articles 5 and 7 of the Staff Regulations.

Although, therefore, it cannot be said that by depriving Mr Kuhner of his duties as head of a special department, the administration infringed Articles 5 and 7 of the Staff Regulations, its conduct towards him should at least be examined to see if it is not open to criticism on some other legal basis.

A.

The duty to look after the well-being of officials (“Fürsorgepflicht”) is a concept from German civil service law and is statutorily embodied in Article 79 of the Bundesbeamtengesetz [Federal Law on Officials].

This obligation may be summed up as the requirement that the administration should take into account not only the interests of the service but also those of its officials. In the words of Ebert “an official is entitled to expect just and fair assessment, to be protected against any damage and not to have his progress in his career improperly obstructed” (Das gesamte öffentliche Dienstrecht, p. 280-4). Ule puts it in similar terms (Beamtenrecht, paragraph 48-2, p. 197).

This duty requires in particular that an administration should avoid ordering any transfer likely to damage the career or reputation of an official (Fischbach, Bundesbeamtengesetz, I, p. 262).

However, in accordance with the maxim “specialia generalibus derogant” it seems that because the obligation is of a general nature it can only be usefully invoked when there are no specific provisions.

B.

The applicant takes the view that both his new posting and the circumstances surrounding it are a serious breach of the administration's duty to look after his well-being. In taking the contested decision the administration did not have sufficient regard to his years of service, his abilities, his experience, the responsibilities which he had previously held, or to the harmful repercussions on his standing and reputation by seriously compromising his prospects of further advancement.

The Commission acknowledges that when assigning an official to a specific post, a Community administration must take due account not only of the interests of the service but also those of the person concerned.

In this respect the Commission believes that the observance of these obligations is sufficiently safeguarded by Articles 5 and 7 of the Staff Regulations and by the review of misuse of powers which may be undertaken by the Court. I cannot but concur with it on this point.

Similarly, inasmuch as observance of it implies that certain procedural safeguards should be given to officials before measures seriously affecting their position are taken, the duty to look after the well-being of officials seems to me to be equivalent to the principle that the rights of the defence should be protected.

C.

Do those similarities mean that the duty to look after the well-being of officials does not have any specific content of its own? I do not think so because it comprises an obligation for an administration not to take measures in regard to an official which are likely to affect adversely his standing and reputation and not to cause his progress in his career to be improperly obstructed.

It is true that in the Commission's view the duty to look after the well-being of officials as understood here is equivalent to the duty to provide assistance (“Beistandspflicht”) which has been developed in the Court's case-law from a wide interpretation of the first paragraph of Article 24 of the Staff Regulations.

As the Court knows, under this provision: “The Communities shall assist any official, in particular in proceedings against any person perpetrating threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties”.

Unless an excessively wide meaning is given to threats, insulting or defamatory acts, utterances or attacks within the meaning of this provision, it does not seem to me that it can refer to the circumstances in issue. Moreover, a study of the recent case-law of the Court shows that it has always refused to accept the arguments of applicants who have attempted to give the provision general scope, going beyond the cases which are expressly referred to therein. I refer the Court here in particular to its judgments of 16 March 1978 (Case 115/76 Leonardi ν Commission [1978] ECR 735 at p. 746) and of 5 April 1979 (Case 116/78 Bellintani ν Commission [1979] ECR 1585 at p. 1600). The duty to look after the well-being of officials (“Fürsorgepflicht”) is therefore wider in scope than the provisions of Article 24 of the Staff Regulations.

D.

In fact I regard it as a principle of law, breach of which should be penalized by the Court. It seems to me that, although the Court has not stated it expressly, it has already acknowledged by implication that it is of this nature.

I think support can be found for this argument in certain opinions of Mr Advocate General Reischl in which this term is used in the sense given to it in German administrative law. Such is the case in recent years in his opinions in Case 56/75 {Elz ν Commission [1976] ECR 1097 at p. 1118) and Case 164/78 (Woebrling ν Commission [1979] ECR 1961 at pp. 1973-1974). It is to be noted that although in the Woebrling case the reference by Mr Reischl to the duty to look after the well-being of officials is in an incidental way so that the Court did not take it up in its judgment, nevertheless in the Elz case the Court arrived at the same conclusion as the Advocate General by criticizing the lack of diligence on the part of the administration.

I myself have already echoed the concern of the applicant and I have also opposed the present argument of the defendant in my opinion in Case 128/75, Mr Ν. ν Commission. In fact I acknowledged in that opinion the existence of a principle extending beyond the first paragraph of Article 24 which I called “the principle of the protection by institutions of their officials” ([1976] ECR 1567 at pp. 1580 and 1582).

I also referred to the Court's numerous judgments laying down the principle of good administration and in particular the judgment of 11 July 1974 (Case 53/72 Guillot ν Commission [1974] ECR 791) and that of 9 November 1978 (Case 140/77 Verhaaf ν Commission [1978] ECR 2117) which, in my view, all amount to implied recognition of the duty to look after the well-being of officials.

In the judgment in the Guillot case, the Court stated that: “Apart from the duties which fall on the Administration under Article 24 of the Staff Regulations, the principles of justice as well as those of good management demand” that it behave in a certain way (at p. 802). Similarly in the judgment in the Verhaaf case the Court considered that Article 24 was only an example of the power and, where necessary, the duty of the competent authorities to take certain measures in the interests of good administration (at p. 2124).

This last judgment seems all the more relevant to me since it concerned a transfer. As the representative of the Commission admitted at the sitting, a change in the assignment and post of an official, as in this case, must satisfy the same basic conditions as a transfer. Moreover, in the latter case, the Commission itself submitted that it had acceded to a request by the applicant on the basis of its duty “to give its officials help and assistance ‘Fürsorgepflicht’) (at p. 2121). One may ask oneself in vain how it can now refuse to recognize the specific nature of this concept when it accepted it in 1974.

In truth the concepts of good administration, of justice and fairness and the duty to look after the well-being of officials seem to me to be simply different ways, envolved from various legal traditions, of expressing the same concern without which there could be no harmonious relations within an administration.

E.

We must now examine whether the administration has injured the applicant's standing and reputation and improperly obstructed his career by changing his posting.

In reaching a decision in this question of discretion in the judgment of 13 December 1979. I do not think it is enough to transpose the solution adopted. (Case 14/79 Loebisch [1979] ECR 3679) in which the Court stated that “each institution controls its own detailed list of posts and has a wide discretion as regards its internal organization” (paragraph 11 of the Decision). There is in fact what I consider to be a fundamental difference between the situation of Mr Loebisch and that of Mr Kuhner. The first sought promotion to a higher grade; the second complains of “capitis diminuito” for having lost his status “equivalent to A 3”.

On the other hand I am of the opinion that the Commission has acted in a manner prejudicial to the standing and reputation of the applicant. This adverse effect is in my view attributable in the first place to the abolition as such of the duties of the applicant as head of a special department. Since in carrying out those duties the applicant enjoyed the privileges which they entail which are well-known to his fellow officials, I do not see how the measure which ultimately removed them can be regarded as anything other than defacto downgrading.

The applicant sees the change in the position of his name in the detailed list of posts in the Statistical Office as an expression of his downgrading. Whilst it used to appear on the same level as A 3 officials, his name is now placed below his head of division. It is true that, as the Commission points out, the detailed list of posts is primarily a functional working tool. But it would not be realistic to deny its impact both inside and outside the institution. Consequently the feelings of the applicant seem to me to be justified.

Finally, and perhaps most importantly, he considers that the Commission's lack of concern for him is little short of bad faith for when during the meeting on 17 July he was asked which duties he would like to be given, his new post had already been decided.

For these reasons it is, in my opinion, evident that the Commission has failed in its duty to look after his well-being.

A.

The applicant believes that he has the right to be informed and consulted beforehand about planned changes in postings which affect him, especially since the Commission specifically gave two of its members the responsibility “to consider any specific measures which could be taken in regard to the position of Mr Kuhner”.

The Commission denies the existence of such a right. It states that, when undertaking a reorganization of its departments which involves changing the postings of numerous officials, the administration cannot be expected to consult each one of them in turn. This submission therefore raises the question of the substantive scope of the principle that the rights of the defence must be observed.

It cannot be denied that this principle applies particularly in disciplinary matters; it is a field in which the safeguards of the rights of the defence are contained in specific provisions. But the Court has also acknowledged that the duty arises, even where there are no provisions, in regard to a measure “which is liable gravely to prejudice the interests of an individual” (judgment of 27 October 1977, Case 121/76 Moli ν Commission [1977] ECR 1971 at p. 1979).

As the Court's case-law presently stands, the Court has classified as such measures refusal to engage a candidate for appointment as an official or agent of the Communities on the ground of physical unfitness (judgment of 27 October 1977, Moli ν Commission, cited above, and judgment of 30 April 1978, Case 75/77 Mollet ν Commission [1978] ECR 897 at p. 908) and retirement in the interests of the service under Article 50 of the Staff Regulations (judgment of 11 May 1978, Case 34/77 Oslizlok ν Commission [1978] ECR 1099 at p. 1115).

Must the possibility therefore a priori be ruled out of cases of transfers or changes in postings made against the wishes of an official in certain circumstances being treated in the same way? I do not think so.

B.

I would point out in the first place that certain Member States have made provision for procedures which limit the discretionary power of the administration and enable an official to be heard either directly or through his representatives.

In French law, the rules governing transfers are different depending on whether or not the official comes under the general regulations on the civil service. Officials to whom, by way of exception, the regulations do not apply, are entitled to communication of the file and that is the minimum requirement imposed on the administration.

For those who come under the general regulations then in the event of a change of residence or an alteration in the situation of the person concerned consultation of the Joint Administration Council is a mandatory formal requirement which, if not observed, makes the transfer decision void. An alteration in the situation of the person concerned can mean, for example, the loss of additional allowances, a change of duties (French Conseil d'État, Egazé, 27 April 1956, Recueil, p. 172), a reduction in powers (French Conseil d'État, Dame Guillon, 23 July 1974, Recueil, p. 157) or a measure with the effect of placing an official who had the main responsibility for a department in a subordinate position (French Conseil d'État, Dame Gille, 21 July 1970, Recueil, p. 532) (Plantey — Traité Pratique de la Fonction Publique, vol. I, Third edition, Nos 1309 to 1327, Nos 1311 and 1323, Réformes dans la Fonction Publique, No 382).

The German system is much like the French system; Article 76 (1) (4) of the Law on Representation of Federal Personnel (Bundespersonalvertretungsgesetz) stipulates that the staff council must be consulted in the case of transfers.

In the Netherlands, whilst paragraph 57 (1) of the General Regulations for Civil Servants (Algemeen Rijksambtenaren Reglement) obliges the administration in the case of transfers to take account of the personal attributes of the official, his specific situation and his prospects, paragraph (2) provides that “except in cases of urgency another post may not be assigned to him until his views have been heard”.

Similarly in Luxembourg, the recent Law of 16 April 1979 laying down the regulations for civil servants provides very clearly in Article 6 (2) which is contained in the chapter on posting, that “before any measure is taken the views of the official concerned must be heard”.

It is true that the other Member States do not have comparable provisions. But it is undoubtedly right to point out that in the United Kingdom and Ireland, where there are no legal provisions on the matter, it is dealt with in a pragmatic way to the evident satisfaction of those concerned by means of discussions and internal negotiations with the participation of bodies representing the members of staff.

C.

Within the Community bodies, the right of an official to be heard before a decision regarding his posting is made has already been supported in a comparative law context less favourable to this argument by Mr Advocate General Roemer in Joined Cases 18 and 35/65, Gutmann ν Commission of the EAEC. In that case, which was similar to this one and concerned a compulsory transfer, the applicant had clearly not been informed of the statements which led to the decision he challenged. Mr Advocate General Roemer considered it “doubtful whether such a procedure can be considered proper, even if the Staff Regulations do not expressly say that an official who is to be transferred must be given an opportunity to defend himself” ([1966] ECR 103 at p. 130).

Neither can one failt to be struck by the contrast between promotion (for which there are very specific safeguards involving, inter alia, consultation of a promotion committee which includes staff representatives), staff reports (governed by directives, which are both precise and public, and open to appeal), and transfers or changes of posting (for which there are no such safeguards). I do not think that the incidence of these various decisions on the career of an official is so dissimilar as to warrant such a difference in treatment.

Looking now at the factual situation it appears that the administration frequently consults its officials without being bound to do so. For example, although it is under no such obligation under existing legal provisions, it gives the probationer concerned the opportunity to comment on its intention to dismiss him as a result of the unfavourable nature of his probation report “thereby observing the code of good personnel administration” (judgment of 12 July 1973, Joined Cases 10 and 47/72 di Pillo ν Commission [1973] ECR 763 at p. 771). This is what it claims to have done in this case by having the meeting on 18 July 1978.

It does not therefore appear that the provision of procedural safeguards in certain cases of changes of posting or transfers of an official presents insurmountable difficulties for the administration.

D.

For that reason I propose that the Court should acknowledge that in certain circumstances such a decision is likely to have serious detrimental effects for the interests of individuals.

In this case I think it is possible to say that the measure in issue is such a decision for two reasons. Although it is difficult to determine whether his new posting has involved a considerable reduction in the powers of the applicant, it cannot be denied that has nevertheless altered his duties in a substantial way and that at the same time it has had the effect of putting him in a subordinate position whereas he previously had main responsibility for a department.

In short, I conclude from my study of the submissions, apart from the submission that no reasons were given, made in support of the application for the annulment of the decision in issue that the measure which is challenged must also be annulled on the ground that it infringes the administration's duty to look after the well-being of officials and its duty to observe the rights of the defence.

I should like to add that such annulment would not mean that the Commission is under an obligation to restore the duties of head of a special department to Mr Kuhner, nor a fortiori re-establish the department which he directed before it was abolished. Such a result would render the administration inflexible when it must always aim to improve the way in which it functions.

This is the result of the reasons for which the applicant's new posting is, in my view, open to criticism. The observance of the administration's duty to look after the well-being of officials requires only the abolition of the privileges at present granted to heads of special departments, outside the confines of the Staff Regulations, which are by no means necessary for the exercise of those duties. As regards officials who are affected by transfers or changes of posting against their wishes in circumstances which can be regarded as seriously injuring their individual interests, the rights of the defence would be respected if the administration arranged a procedure enabling an official to be heard before the measure concerning him is taken or providing for consultation of a body which includes representatives of the staff.

—

Annul the decision taken between 7 and 29 or 30 June 1978 by Mr Ortoli and Mr Tugendhat transferring Mr Kuhner to Division F 1 of the Statistical Office as an official with special assignments on methods;

—

Order the Commission to pay to the applicant one unit of account as compensation for the non-material damage which he has suffered;

—

Order the Commission to pay the costs.