61974J0004

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OFFICIALS - RANK - EQUALITY - INTERESTS OF SERVICE - SUBORDINATION

NO PROVISION IN THE STAFF REGULATIONS PREVENTS AN OFFICIAL WHO IS CARRYING OUT ADMINISTRATIVE DUTIES FROM BEING, IN THE INTERESTS OF THE SERVICE AND FOR THE PURPOSE OF COORDINATING CERTAIN ACTIVITIES, MADE ANSWERABLE, UNDER THE AUTHORITY OF HIS IMMEDIATE SUPERIOR, TO THE HEAD OF ANOTHER DIVISION .

IN JOINED CASES 4/74 AND 30/74

GIUSEPPE SCUPPA, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, LIVING AT TERVUEREN ( BELGIUM ), REPRESENTED BY ARNAUD LYON-GAEN, ADVOCATE BEFORE THE CONSEIL D'ETAT AND THE COUR DE CASSATION OF FRANCE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MARC SOHIER, ITS LEGAL ADVISER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, PIERRE LAMOUREUX, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR, PRINCIPALLY, PAYMENT OF DAMAGES TO THE APPLICANT IN RESPECT OF THE DECISION TO TRANSFER HIM WITHIN THE INSTITUTION TAKEN BY THE COMMISSION ON 16 MAY 1973 ( APPLICATION 4/74 ) AND FOR REVIEW OF THE DECISION OF THE COMMISSION OF 27 JUNE 1973 TERMINATING THE SERVICE OF THE APPLICANT ( APPLICATION 30/74 ),

1 THE OBJECTIVE OF THE APPLICATION IS, ESSENTIALLY :

( A ) IN CASE 4/74 : AWARD OF DAMAGES FOR THE DECISION OF THE COMMISSION OF 16 MAY 1973 RELIEVING THE APPLICANT OF HIS DUTIES AS HEAD OF DIVISION VI/E/3 IN THE DIRECTORATE-GENERAL FOR AGRICULTURE AND ASSIGNING HIM TO THE POST OF HEAD OF DIVISION VI/D/4 IN THE SAME DIRECTORATE-GENERAL AND, IN THE ALTERNATIVE, ANNULMENT OF THE DECISION;

( B ) IN CASE 30/74 : A NUMBER OF DECLARATIONS IN RELATION TO THE DECISION TAKEN BY THE COMMISSION ON 27 JUNE 1973 TO TERMINATE THE APPLICANT'S SERVICE, TOGETHER WITH ANNULMENT OF THE DECISION AND THE AWARD OF DAMAGES .

2 IN VIEW OF THE WAY IN WHICH THE APPLICANT HAS LINKED APPLICATION 4/74 CONCERNING THE DECISION OF TRANSFER AND APPLICATION 30/74 CONCERNING THE DECISION TO TERMINATE HIS SERVICE, IT IS FIRST NECESSARY TO IDENTIFY THE SPECIFIC SUBJECT-MATTER OF EACH OF THESE TWO APPLICATIONS .

3 ON 18 DECEMBER 1968 THE APPLICANT WAS PROMOTED TO THE POST OF HEAD OF DIVISION VI/E/3 IN THE DIRECTORATE-GENERAL FOR AGRICULTURE .

4 ON 10 FEBRUARY 1969, THE COMMISSION DREW UP A 'PROGRAMME OF WORK' FOR IMPLEMENTATION OF THE MEMORANDUM ON THE REORGANIZATION OF AGRICULTURE IN THE EEC, WHICH MEANT THAT DIVISION VI/E/3, OF WHICH THE APPLICANT HAD JUST BEEN PUT IN CHARGE, BECAME TO SOME EXTENT OPERATIONALLY SUBORDINATE TO DIVISION VI/E/1 IN THE SAME DIRECTORATE-GENERAL .

5 THE IMPLEMENTATION OF THIS ADMINISTRATIVE ARRANGEMENT LED TO REPEATED DIFFICULTY IN THE RELATIONSHIP BETWEEN THE APPLICANT AND THE ADMINISTRATION OF THE COMMISSION OF WHICH CONFLICTING VERSIONS ARE GIVEN BY THE PARTIES .

6 BY DECISION OF 16 MAY 1973, WHICH IS THE SUBJECT OF APPLICATION 4/74, THE COMMISSION FINALLY TRANSFERRED THE APPLICANT TO THE POST OF HEAD OF DIVISION VI/D/4 IN THE DIRECTORATE-GENERAL FOR AGRICULTURE .

7 ON 18 JUNE 1973 THE APPLICANT LODGED A COMPLAINT AGAINST THIS DECISION UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS .

8 THE COMMISSION TOOK NO ACTION ON THIS COMPLAINT .

9 ON 20 JUNE 1973 THE APPLICANT SUBMITTED A REQUEST TO THE COMMISSION FOR TERMINATION OF HIS SERVICE UNDER ARTICLE 2 OF REGULATION NO 2530/72 OF THE COUNCIL OF 4 DECEMBER 1972, INTRODUCING SPECIAL AND TEMPORARY MEASURES APPLICABLE TO THE RECRUITMENT OF OFFICIALS OF THE EUROPEAN COMMUNITIES IN CONSEQUENCE OF THE ACCESSION OF NEW MEMBER STATES AND FOR THE TERMINATION OF SERVICE OF OFFICIALS OF THOSE COMMUNITIES ( OJ L 272, P . 1 ).

10 THE REQUEST WAS ACCOMPANIED BY A SUPPLEMENTARY STATEMENT BY THE APPLICANT IN THE FOLLOWING TERMS :

'THIS REQUEST IS SUBMITTED FOR THE REASONS AND IN THE CIRCUMSTANCES EXPLAINED BY THE UNDERSIGNED IN HIS COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS, WHICH WAS REGISTERED AT THE SECRETARIAT-GENERAL ON 18 JUNE 1973 . CONSEQUENTLY, IF, AS IS TO BE HOPED, THE COMMISSION GIVES ITS DECISION ON THE COMPLAINT BEFORE IT GIVES ONE ON THE PRESENT REQUEST, THAT IS, BEFORE 30 JUNE 1973, AND IN TERMS WHICH THE UNDERSIGNED ACCEPTS AS SATISFACTORY, THIS REQUEST IS TO BE REGARDED AS HAVING BEEN WITHDRAWN .

SIMILARLY, IF THIS IS NOT THE SEQUENCE OF EVENTS, THE UNDERSIGNED TAKES THE VIEW THAT A DECISION OF THE APPOINTING AUTHORITY TO TERMINATE HIS SERVICE MUST BE REGARDED AS BEING NO LONGER BASED ON THE PRESENT REQUEST AND, ACCORDINGLY, MUST BE DECLARED NULL AND VOID OR REVOKED, ON APPLICATION SUBMITTED BY HIM WHEN THE OUTCOME OF THE COMPLAINT IS KNOWN '.

11 ON 27 JUNE 1973, THE COMMISSION DECIDED TO TERMINATE THE APPLICANT'S SERVICE WITH EFFECT FROM THE FOLLOWING 1 JULY .

12 THIS DECISION WAS COMMUNICATED TO THE APPLICANT BY LETTER OF 9 JULY 1973 IN WHICH THE COMMISSION, AFTER ACKNOWLEDGING THE REQUEST SUBMITTED BY THE APPLICANT, INFORMED HIM THAT IT HAD DECIDED TO CONSIDER AND ACCEPT IT .

13 ON 8 OCTOBER 1973 THE APPLICANT LODGED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AGAINST THE DECISION TAKEN .

14 NO REPLY WAS RECEIVED TO THIS COMPLAINT EITHER .

15 HAVING RECEIVED NO REPLY TO HIS COMPLAINT OF 18 JUNE 1973, THE APPLICANT, BY APPLICATION OF 15 JANUARY 1974, INITIATED PROCEEDINGS IN CASE 4/74 .

16 SIMILARLY, WHEN HIS COMPLAINT OF 8 OCTOBER 1973 ALSO REMAINED UNANSWERED, THE APPLICANT, BY APPLICATION OF 8 MAY 1974, INITIATED THE PROCEEDINGS IN CASE 30/74 .

APPLICATION 4/74 ( DECISION OF TRANSFER )

17 BY AN APPLICATION ON A PROCEDURAL ISSUE SUBMITTED UNDER ARTICLE 91 OF THE RULES OF PROCEDURE, THE COMMISSION ASKED THE COURT TO RULE ON THE ADMISSIBILITY OF APPLICATION 4/74 .

18 BY ORDER OF 9 JULY 1974 THE COURT DECIDED TO RESERVE ITS DECISION ON THE PRELIMINARY OBJECTION FOR THE FINAL JUDGMENT .

19 IN SUPPORT OF ITS OBJECTION, THE COMMISSION EMPHASIZED THE FACT THAT AT THE DATE WHEN THE APPLICATION WAS LODGED, 15 JANUARY 1974, THE APPLICANT WAS, AS A RESULT OF THE DECISION OF 27 JUNE 1973 TERMINATING HIS SERVICE, NO LONGER AN OFFICIAL OF THE COMMUNITY, AND THAT HE THEREFORE NO LONGER HAD A LEGAL INTEREST IN ASKING FOR AN ADMINISTRATIVE SITUATION WHICH NO LONGER EXISTED TO BE CHANGED .

20 THE EXPLANATIONS SUPPLIED BY THE APPLICANT DURING THE PROCEEDINGS HAVE ENABLED HIM TO ESTABLISH A VALID INTEREST IN OBTAINING A REVIEW OF THE CORRECTNESS OR OTHERWISE OF THE DECISION TO TRANSFER HIM, NOTWITHSTANDING THE DECISION TO TERMINATE HIS SERVICE, A FORTIORI SINCE HE IS CHALLENGING THE LATTER DECISION .

21 THE OBJECTION AS TO ADMISSIBILITY RAISED BY THE COMMISSION MUST, ACCORDINGLY, BE SET ASIDE AND CONSIDERATION GIVEN TO THE SUBSTANCE .

22 UNDER THE 'PROGRAMME OF WORK' FOR IMPLEMENTATION OF THE REORGANIZATION OF AGRICULTURE, WHICH MADE PARTICULARLY HEAVY DEMANDS ON THE COMMUNITY ADMINISTRATION, THE COMMISSION HAD SET UP A SPECIFIC ORGANIZATION AND DISTRIBUTED AMONG NAMED INDIVIDUALS THE TASKS ALLOTTED TO EACH OF THE DEPARTMENTS AND OFFICIALS CONCERNED IN THE DIRECTORATE-GENERAL FOR AGRICULTURE .

23 WITHIN DIRECTORATE E, WHICH WAS RESPONSIBLE FOR QUESTIONS CONCERNING AGRICULTURAL STRUCTURES AND ENVIRONMENT, THE PLAN MADE THE HEAD OF DIVISION VI/E/1 SPECIFICALLY RESPONSIBLE FOR LAYING DOWN THE GENERAL GUIDELINES FOR CERTAIN PARTS OF THE WORK DONE BY OTHER DIVISIONS IN THE DIRECTORATE .

24 WHEN, IN MARCH 1969, THE APPLICANT ACTUALLY COMMENCED WORK AS HEAD OF DIVISION VI/E/3 HE REFUSED TO ACCEPT WHAT HE REGARDED AS 'SUBORDINATE' STATUS TO THE HEAD OF THE FIRST-MENTIONED DIVISION AND HE PERSISTED IN THIS ATTITUDE .

25 DURING THE FOUR YEARS IN WHICH HE WAS HEAD OF DIVISION VI/E/3, THE SERVICE RELATIONSHIP BETWEEN THE APPLICANT AND THE HEAD OF DIVISION VI/E/1 BECAME MORE AND MORE STRAINED AND WAS MARKED BY PROTESTS BY THE APPLICANT IN INCREASINGLY VEHEMENT AND PERSONAL TERMS .

26 THE PROVISIONS OF THE 'PROGRAMME OF WORK', TO WHICH THE APPLICANT OBJECTED, FORM PART OF MEASURES WHICH THE COMMUNITY AUTHORITY WAS ENTITLED TO TAKE IN THE INTERESTS OF THE INTERNAL ORGANIZATION OF ITS DEPARTMENTS .

27 MORE PARTICULARLY, NO PROVISION IN THE STAFF REGULATIONS PREVENTS A HEAD OF DIVISION, IN THE INTERESTS OF THE SERVICE AND FOR THE PURPOSE OF COORDINATING CERTAIN ACTIVITIES, FROM BEING, UNDER THE AUTHORITY OF HIS IMMEDIATE SUPERIOR, MADE ANSWERABLE TO THE HEAD OF ANOTHER DIVISION .

28 FAR FROM BEING AN INDICATION OF ILL WILL TOWARDS THE APPLICANT, THE DECISION TO TRANSFER HIM, TAKEN WITH FULL REGARD TO HIS RANK AND PECUNIARY RIGHTS, WAS A LEGITIMATE METHOD ADOPTED BY THE COMMISSION TO PUT AN END TO A SITUATION WHICH WAS INIMICAL TO THE SMOOTH WORKING OF ITS DEPARTMENTS AS WELL AS TO THE PERSONAL INTERESTS OF ALL CONCERNED .

29 THE DECISION WAS, THEREFORE, BASED ON SOUND REASONS AND, IN CONSEQUENCE, INFLICTED ON THE APPLICANT NO DAMAGE CALLING FOR COMPENSATION ON THE PART OF THE COMMUNITY .

30 IT FOLLOWS THAT APPLICATION 4/74 MUST BE DISMISSED .

APPLICATION 30/74 ( TERMINATION OF SERVICE )

31 THE COMMISSION HAS RAISED OBJECTIONS AS TO THE ADMISSIBILITY OF CERTAIN HEADS OF CLAIM IN THE APPLICATION INITIATING PROCEEDINGS IN CASE 30/74 ON THE GROUND THAT THEY REALLY APPLIED TO APPLICATION 4/74 .

32 THESE OBJECTIONS ARE VALID AND IT IS, THEREFORE, NECESSARY TO EXCLUDE FROM APPLICATION 30/74 ALL CONSIDERATIONS ARISING FROM THE DISPUTE CONCERNING THE DECISION TO TRANSFER THE APPLICANT, ON WHICH THE COURT HAS ALREADY ARRIVED AT THE DECISION GIVEN ABOVE .

33 WITH THE REMOVAL OF THOSE CONSIDERATIONS, IT IS CLEAR THAT THE ESSENTIAL SUBJECT-MATTER OF APPLICATION 30/74 IS THE OBJECTION RAISED AS TO THE LEGALITY OF THE DECISION OF 27 JUNE 1973 TERMINATING THE APPLICANT'S SERVICE AND A CONCOMITANT REQUEST FOR THE AWARD OF COMPENSATION FOR MATERIAL AND NON-MATERIAL DAMAGE .

34 IN THE APPLICANT'S VIEW, THE DECISION TO TERMINATE HIS SERVICE WAS AN IMPROPER ONE BECAUSE THE COMMISSION PAID NO REGARD TO THE CONDITIONAL NATURE OF THE REQUEST WHICH HE SUBMITTED .

35 HE FURTHER TAKES THE VIEW THAT THE DECISION IS MERELY THE OUTCOME OF THE DIFFICULTIES WHICH HE HAD PREVIOUSLY EXPERIENCED IN HIS RELATIONS WITH THE DEPARTMENTS OF THE COMMISSION AND IS, THEREFORE, A 'DISGUISED PUNISHMENT' FOR HIS PREVIOUS ATTITUDE .

36 THE LEGALITY OF THE DECISION TO TERMINATE HIS SERVICE MUST BE APPRAISED IN THE LIGHT OF REGULATION NO 2530/72, ON THE BASIS OF WHICH IT WAS TAKEN .

37 UNDER ARTICLE 2 ( 1 ) OF THE REGULATION, THE INSTITUTIONS OF THE COMMUNITIES WERE AUTHORIZED, UNTIL 30 JUNE 1974, TO ADOPT, IN THE INTERESTS OF THE SERVICE, MEASURES TERMINATING THE SERVICE OF OFFICIALS IN CERTAIN GRADES .

38 UNDER ARTICLE 2 ( 2 ) A LIST OF THE OFFICIALS TO BE AFFECTED BY SUCH MEASURES WAS DRAWN UP BY THE INSTITUTIONS CONCERNED AFTER TAKING INTO ACCOUNT THE OFFICIALS' AGE, ABILITY, EFFICIENCY, CONDUCT IN THE SERVICE, FAMILY CIRCUMSTANCES AND SENIORITY .

39 THE FIRST SUBPARAGRAPH OF ARTICLE 2 ( 3 ) READS : 'IF THE INTERESTS OF THE SERVICE PERMIT, THE INSTITUTION SHALL TAKE INTO ACCOUNT THE REQUESTS OF OFFICIALS THAT THEIR SERVICE BE TERMINATED UNDER PARAGRAPH ( 1 )'.

40 IT IS CLEAR FROM THESE PROVISIONS, TAKEN AS A WHOLE, THAT THE DEPARTMENTAL REORGANIZATION PROVIDED FOR UNDER REGULATION NO 2530/72 TOOK PLACE AS A MATTER OF COURSE, ON THE INITIATIVE OF THE INSTITUTIONS CONCERNED AND ON THE BASIS OF CERTAIN CONSIDERATIONS WHICH THEY HAD TO TAKE INTO ACCOUNT, THE ONLY EFFECT OF A REQUEST FROM THOSE CONCERNED BEING TO ENSURE THAT THEY HAD PRIORITY SUBJECT, HOWEVER, TO THE INTERESTS OF THE SERVICE .

41 AS THE APPLICANT HAD LODGED SUCH A REQUEST THE COMMISSION WAS ENTITLED TO TAKE NOTE OF HIS WISHES WITHOUT HAVING TO TAKE INTO ACCOUNT CONDITIONS EXPRESSED IN VAGUE TERMS AND REFERRING TO MATTERS WHICH IN ANY CASE WERE IRRELEVANT TO THE CONSIDERATIONS CONTAINED IN REGULATION NO 2530/72 .

42 IN FACT THESE CONDITIONS COULD HAVE HAD NO OTHER PURPOSE THAN TO INDUCE THE COMMISSION TO RESOLVE AN OLD DISPUTE IN FAVOUR OF THE APPLICANT .

43 FAR FROM REPRESENTING A DISGUISED PUNISHMENT THE DECISION MUST BE TAKEN AS THE COMMISSION'S EXPRESSION OF A DESIRE TO FIND AN HONOURABLE WAY OUT OF THE SITUATION FOR AN OFFICIAL WHOSE SERVICES AND DEVOTION TO DUTY IT REPEATEDLY RECOGNIZED, EVEN IN THE LETTER TERMINATING HIS SERVICE .

44 THIS ASSESSMENT OF THE SITUATION IS, MOREOVER, CONSISTENT WITH ARTICLE 2 ( 4 ) OF REGULATION NO 2530/72, WHICH DECLARES THAT THE REORGANIZATION MEASURES PROVIDED FOR 'ARE IN NO WAY DISCIPLINARY '.

45 THE COMMISSION CANNOT, THEREFORE, BE CRITICIZED IF, AFTER ELIMINATING ALL IRRELEVANT CONSIDERATIONS AND NOTING THE WISH EXPRESSED BY THE APPLICANT, IT TOOK THE DECISION TO TERMINATE HIS SERVICE .

46 AS THE FINANCIAL CONSEQUENCES OF TERMINATION OF SERVICE ARE LAID DOWN IN CLEAR AND SUFFICIENT TERMS BY REGULATION NO 2530/72, THE SUBSIDIARY CLAIM FOR DAMAGES IS WITHOUT FOUNDATION .

47 ON THOSE GROUNDS, APPLICATION 30/74 MUST BE DISMISSED .

48 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY MUST BEAR THE COSTS .

49 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS IN BOTH ACTIONS .

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

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES APPLICATIONS 4/74 AND 30/74;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .