61978J0124

1 . OFFICIALS - APPLICATIONS TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - CONCEPT - INTERNAL ADMINISTRATIVE MEASURES - EXCLUSION - CONDITIONS - ABSENCE OF EFFECTS ON APPLICANT ' S RIGHTS UNDER THE STAFF REGULATIONS

( STAFF REGULATIONS , ART . 91 )

2 . OFFICIALS - DUTY OF THE ADMINISTRATION TO PROVIDE ASSISTANCE - PROTECTION REQUESTED BY AN OFFICIAL AGAINST THE ALLEGED MACHINATIONS OF OTHER OFFICIALS - UNSUCCESSFUL ATTEMPTS AT RECONCILIATION - ADOPTION OF APPROPRIATE INTERNAL ADMINISTRATIVE MEASURES - OBSERVANCE OF INDIVIDUAL ' S RIGHTS UNDER STAFF REGULATIONS - LEGALITY

( STAFF REGULATIONS , ART . 24 )

1 . AN INTERNAL ADMINISTRATIVE MEASURE DOES NOT CONSTITUTE A MEASURE WHICH MAY BE THE SUBJECT OF AN APPLICATION TO THE COURT UNDER ARTICLE 91 OF THE STAFF REGULATIONS IN SO FAR AS IT DOES NOT AFFECT THE RIGHTS UNDER ARTICLES 5 AND 7 OF THE STAFF REGULATIONS OF THE PERSON CONCERNED .

2 . THE ADMINISTRATIVE AUTHORITY IS NOT IN BREACH OF ITS DUTY TO PROVIDE ASSISTANCE UNDER THE FIRST PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS IF , IN ANSWER TO A REQUEST BY AN OFFICIAL FOR PROTECTION AGAINST THE ALLEGED MACHINATIONS OF CERTAIN OF HIS COLLEAGUES , AND FINDING THAT ITS EFFORTS TO BRING ABOUT A RECONCILIATION ARE OF NO AVAIL , IT TAKES ALL THE APPROPRIATE STEPS TO MITIGATE THE DETERIORATION OF WORKING RELATIONSHIPS WITHIN THE SERVICE WITHOUT AFFECTING THE RIGHTS UNDER THE STAFF REGULATIONS OF THE PERSON CONCERNED .

IN CASE 124/78 ,

HARALD LIST , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY MARCEL SLUSNY , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B/IV RUE PHILIPPE II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOSEPH GRIESMAR , ACTING AS AGENT , ASSISTED BY DANIEL JACOB , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION IN PARTICULAR FOR THE ANNULMENT OF THE DECISION TAKEN BY MR PIGNOT TO RELIEVE THE APPLICANT OF HIS DUTIES AS CO-ORDINATOR OF THE GERMAN TRANSLATION SECTION OF THE ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS ,

1 THIS APPLICATION , LODGED ON 29 MAY 1978 , SEEKS THE ANNULMENT OF FOUR SUCESSIVE MEASURES TAKEN IN RESPECT OF THE APPLICANT , AN OFFICIAL OF THE COMMISSION IN GRADE L/A 4 , AND THE ANNULMENT OF THE COMMISSION ' S REFUSAL OF THE APPLICANT ' S REQUEST OF 21 JUNE 1977 ' ' FOR PROTECTION AGAINST THE MACHINATIONS OF A NUMBER OF HIS COLLEAGUES ' ' . THE MEASURES WHOSE ANNULMENT HE SEEKS , AS DESCRIBED IN THE ORGINATING APPLICATION , ARE AS FOLLOWS :

- THE NOTE OF MR PIGNOT , HEAD OF THE TRANSLATION ( GENERAL MATTERS ) DIVISION , OF 20 JUNE 1977 DISCHARGING THE APPLICANT FROM HIS DUTIES AS CO-ORDINATOR OF THE GERMAN SECTION OF THE ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS ;

- THE NOTE OF MR PIGNOT OF 1 JULY 1977 TO THE EFFECT THAT IN CASE OF ABSENCE OF HIS SUPERIORS THE APPLICANT SHOULD NOT REPLACE THEM OR RECEIVE A TEMPORARY POSTING ;

- THE NOTE OF MR BAICHERE , DIRECTOR GENERAL OF PERSONNEL AND ADMINISTRATION , OF 27 JULY 1977 MOVING THE APPLICANT FROM HIS POST AS REVISER/CO-ORDINATOR IN THE ADMINISTRATIVE COMMISSION TO THE TASK FORCE FOR NEGOTIATIONS WITH PORTUGAL ;

- THE NOTE OF MR BAICHERE OF 27 OCTOBER 1977 PUTTING THE APPLICANT AT THE DISPOSAL OF MR CIANCIO , DIRECTOR OF THE TRANSLATION , DOCUMENTATION , REPRODUCTION AND LIBRARY DIRECTORATE .

ADMISSIBILITY

2 THE COMMISSION CONTENDS THAT IN SO FAR AS THE APPLICATION RELATES TO THE FOUR ABOVE-MENTIONED MEASURES IT IS INADMISSIBLE .

3 THE COMMISSION ARGUES ON THE ONE HAND THAT THE APPLICATION IS OUT OF TIME AND ON THE OTHER THAT THE CONTESTED MEASURES FALL WITHIN THE INTERNAL ORGANIZATIONAL POWERS OF THE ADMINISTRATION AND ARE NOT THEREFORE MEASURES WHICH MAY BE ANNULLED WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS . IT IS APPROPRIATE TO EXAMINE THE LAST ARGUMENT FIRST .

4 IT APPEARS FROM THE FILE THAT IN THE COURSE OF 1975 THE APPLICANT WAS ORALLY GIVEN RESPONSIBILITY FOR CO-ORDINATING THE WORK OF THE GERMAN TRANSLATION SECTION OF THE ADMINISTRATIVE COMMISSION . IT SHOULD BE NOTED THAT THE TASK OF CO-ORDINATOR IS NOT PROVIDED FOR IN ANNEX I TO THE STAFF REGULATIONS . ACCORDING TO THE GUIDE PRATIQUE DU TRADUCTEUR ( TRANSLATOR ' S PRACTICAL GUIDE ) ( P.22 ), PUBLISHED IN OCTOBER 1975 BY THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION , ' ' THE WORK OF CO-ORDINATORS IS OF A PURELY TECHNICAL NATURE . THE SUPERVISORY AUTHORITY REMAINS WHOLLY IN THE HANDS OF THE HEAD OF THE DIVISION WHO , BY THAT TOKEN , IS ALONE RESPONSIBLE FOR THE DISTRIBUTION OF WORK AND , WHERE APPROPRIATE , THE TRANSFER OF TEXTS FROM ONE GROUP TO ANOTHER . . . ' ' . THE NOTE OF 20 JUNE 1977 BY VIRTUE OF WHICH THE RESPONSIBILITIES OF CO-ORDINATOR WHICH HAD BEEN CARRIED OUT BY THE APPLICANT WERE TRANSFERRED TO THE HEAD OF DEPARTMENT , MISS PEPPINCK , THUS IN NO WAY AFFECTED THE APPLICANT ' S POSITION UNDER THE STAFF REGULATIONS . THAT INSTRUCTION CONSTITUTES MERELY AN INTERNAL ADMINISTRATIVE MEASURE WHICH , IN SO FAR AS IT DID NOT AFFECT THE APPLICANT ' S RIGHTS UNDER ARTICLES 5 AND 7 OF THE STAFF REGULATIONS , CANNOT FORM THE SUBJECT OF AN APPLICATION TO THE COURT .

5 THE SAME CONCLUSION MUST BE DRAWN REGARDING THE DECISION TAKEN BY MR PIGNOT ON 1 JULY 1977 HIMSELF TO REPLACE THE HEAD OF DEPARTMENT , MISS PEPPINCK , DURING HER ABSENCE . THAT STEP RELATING TO THE ORGANIZATION OF THE SERVICE , WHICH WAS EVEN MORE LIMITED IN NATURE THAN THE PREVIOUS ONE , DOES NOT CONSTITUTE ' ' AN ACT ADVERSELY AFFECTING ' ' THE APPLICANT WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS AS IT IN NO WAY AFFECTS THE APPLICANT ' S POSITION UNDER THOSE REGULATIONS .

6 AS THE TWO SAID MEASURES DO NOT CONSTITUTE MEASURES CAPABLE OF FORMING THE SUBJECT OF AN APPLICATION TO THE COURT IT IS NOT NECESSARY TO CONSIDER WHETHER THE APPLICATION DIRECTED AGAINST THOSE TWO MEASURES WAS INTRODUCED WITHIN THE PERIOD LAID DOWN BY THE STAFF REGULATIONS .

7 THE COMMISSION HAS ALSO CHALLENGED THE ADMISSIBILITY OF THE CLAIM DIRECTED AGAINST THE INSTRUCTION OF 27 JULY 1977 BY VIRTUE OF WHICH THE APPLICANT WAS PLACED AT THE DISPOSAL OF THE TASK FORCE FOR NEGOTIATIONS WITH PORTUGAL FROM 1 SEPTEMBER 1977 . AS THE COMMISSION POINTS OUT , THAT MEASURE WAS SUPERSEDED BEFORE THE APPLICATION WAS LODGED . IN THE TERMS OF THE STATEMENT OF THE REASONS ON WHICH IT IS BASED THE CONTESTED MEASURE WAS ADOPTED SOLELY BY REASON OF ' ' THE NEEDS OF THE TASK FORCE ' ' AND THE APPLICANT ' S ' ' RECOGNIZED QUALIFICATIONS AS REVISER ' ' AND IT CAN NOT THEREFORE BE REGARDED AS A ' ' DISGUISED DISCIPLINARY MEASURE ' ' WHICH , EVEN AFTER ITS WITHDRAWAL , MIGHT HAVE DETRIMENTAL EFFECTS ON THE APPLICANT . TO THE EXTENT TO WHICH IT IS DIRECTED AGAINST THAT MEASURE THE APPLICATION IS THEREFORE INADMISSIBLE AS IT HAS LOST ITS PURPOSE .

8 FINALLY IT MUST ALSO BE HELD THAT THE APPLICATION IS INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST MR BAICHERE ' S NOTE OF 27 OCTOBER 1977 PLACING THE APPLICANT AT THE DISPOSAL OF MR CIANCIO AS THE APPLICANT HAS FAILED TO ESTABLISH THAT HE HAS AN INTEREST IN THE ANNULMENT OF THAT NOTE AGAINST WHICH , FURTHERMORE , HE DID NOT LODGE A COMPLAINT THROUGH OFFICIAL CHANNELS .

9 IN VIEW OF THE FOREGOING IT IS NECESSARY TO EXAMINE THE SUBSTANCE ONLY OF THE APPLICANT ' S CLAIM RELATING TO THE REFUSAL TO PROVIDE THE ASSISTANCE REQUESTED BY HIM .

SUBSTANCE

10 THE APPLICANT ALLEGES THAT THE COMMISSION FAILED IN ITS DUTY TO ASSIST HIM LAID DOWN BY THE FIRST PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS BY NOT ACCEDING TO HIS REQUEST FOR PROTECTION ' ' AGAINST THE MACHINATIONS OF A NUMBER OF HIS COLLEAGUES ' ' WHICH HE MADE ON 21 JUNE 1977 . THAT REQUEST FOLLOWED THE SUBMISSION ON 15 JUNE 1977 OF A ' ' NOTE FOR THE ATTENTION OF MR PIGNOT ' ' SIGNED BY THE FIVE OFFICIALS IN THE TRANSLATION GROUP CO-ORDINATED BY THE APPLICANT . IN THAT NOTE THE APPLICANT ' S FIVE COLLEAGUES STATED THAT THEY WOULD THEREAFTER REFUSE TO CO-OPERATE WITH THE APPLICANT .

11 THE FIRST PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS PROVIDES THAT : ' ' THE COMMUNITIES SHALL ASSIST ANY OFFICIAL , IN PARTICULAR IN PROCEEDINGS AGAINST ANY PERSON PERPETRATING THREATS , INSULTING OR DEFAMATORY ACTS OR UTTERANCES . . . TO WHICH HE . . . IS SUBJECTED BY REASON OF HIS POSITION OR DUTIES ' ' .

12 IT IS EVIDENT FROM THE FILE THAT IN THE DAYS FOLLOWING THE SUBMISSION OF THE SAID NOTE OF 15 JUNE 1977 AN ATTEMPT WAS MADE BY THE HEAD OF THE DIVISION TO ORGANIZE A MEETING BETWEEN THE OFFICIALS CONCERNED BUT THE MEETING COULD NOT BE HELD AS THE APPLICANT REFUSED TO HAVE A CONFRONTATION WITH THE ' ' CONSPIRATORS ' ' . FINDING THAT ITS ATTEMPS AT EFFECTING A RECONCILIATION WERE OF NO AVAIL THE ADMINISTRATIVE AUTHORITY ADOPTED THE VARIOUS MEASURES DESCRIBED ABOVE .

13 CONTRARY TO WHAT THE APPLICANT ALLEGES THESE MEASURES CANNOT BE REGARDED AS CONSTITUTING A BREACH OF THE OBLIGATION TO PROVIDE ASSISTANCE SET OUT IN THE FIRST PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS . QUITE APART FROM THE QUESTION OF WHO BEARS RESPONSIBILITY FOR THE INCIDENT ON 15 JUNE 1977 , WHICH IT IS NOT NECESSARY FOR THE COURT TO DECIDE IN THESE PROCEEDINGS , IT SHOULD BE OBSERVED THAT IT WAS FOR THE APPLICANT , WHO HAD BEEN GIVEN THE TASK OF CO-ORDINATION , TO ENSURE THAT RELATIONS COMPATIBLE WITH THE PROPER RUNNING OF THE SERVICE WERE MAINTAINED WITHIN HIS WORKING GROUP . ONCE IT BECAME CLEARLY IMPOSSIBLE TO SMOOTH OUT THE DIFFERENCES WHICH HAD ARISEN BETWEEN THE APPLICANT AND HIS FIVE COLLEAGUES THE DEFENDANT INSTITUTION WAS ENTITLED TO TAKE ANY APPROPRIATE STEPS IN ORDER TO RESTORE A PEACEABLE ATMOSPHERE IN THE DEPARTMENT IN QUESTION . THE STEPS TAKEN BY THE ADMINISTRATION NAMELY , FIRST , IN GIVING RESPONSIBILITY FOR CO-ORDINATION WHICH HAD BEEN CARRIED OUT BY THE APPLICANT TO HIS SUPERIOR AND SECONDLY IN PLACING THE APPLICANT AT THE DISPOSAL OF A DEPARTMENT WHERE A REVISER WITH THE APPLICANT ' S QUALIFICATIONS WAS REQUIRED , CONSTITUTE A REASONABLE REACTION TO THE SITUATION RESULTING FROM THE DETERIORATION OF WORKING RELATIONSHIPS IN THE TRANSLATION GROUP IN QUESTION . THE MEASURES WERE THUS ADOPTED IN THE INTEREST OF THE SERVICE AND THERE IS NOTHING TO SHOW THAT THE WAY IN WHICH THEY WERE ADOPTED DETRIMENTALLY AFFECTED THE APPLICANT ' S INTERESTS AS AN OFFICIAL . IN THOSE CIRCUMSTANCES THE CLAIM FOR A DECLARATION THAT THE INSTITUTION FAILED TO FULFIL ITS OBLIGATION UNDER THE FIRST PARAGRAPH OF ARTICLE 24 OF THE STAFF REGULATIONS MUST BE DISMISSED .

COSTS

14 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

15 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .