JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

28 October 2004

Case T-76/03

Herbert Meister

v

Office for Harmonisation in the Internal Market

(Trade Marks and Designs) (OHIM)

(Officials – Reassignment of a head of service – Interest of the service – Equivalence of posts – Right to freedom of expression – Duty to have regard for the interests of officials – Statement of reasons – Right to be heard – Non-contractual liability)

Full text in French II - 0000

Application:         for, first, annulment of the OHIM’s decision PERS-AFFECT-02-30 of 22 April 2002 appointing the applicant, in the interest of the service, with his post, as legal adviser to the Vice-President for Legal Affairs and, second, for damages.

Held:         OHIM is ordered to pay the applicant EUR 5 000 by way of damages for breach of administrative duty. The remainder of the action is dismissed. OHIM is to pay its own costs and one fifth of the costs incurred by the applicant. The applicant is to pay four fifths of his own costs.

Summary

1.     Officials – Actions – Purpose – Order directed to the administration – Inadmissibility

(Art. 233 EC; Staff Regulations, Art. 91)

2.     Officials – Organisation of departments – Assignment of staff – Discretion of the administration – Limits – Interests of the service – Compliance with the principle of assignment to an equivalent post – Review by the Court – Limits

(Staff Regulations, Art. 7(1))

3.     Officials – Action – Reorganisation of departments – Compliance with the principle of assignment to an equivalent post

(Staff Regulations, Art. 7(1))

4.     Officials – Measure of internal organisation not affecting an official’s position under the Staff Regulations or infringing the principle of assignment to an equivalent post – Obligation of the administration to hear the official concerned and to give reasons for its decision – None(Staff Regulations, Art. 25)

5.     Officials – Rights and obligations – Freedom of expression – Exercise – Limits – Protection of the legitimate interests of the institutions – Review by the Court

(Staff Regulations, Art. 7(1))

6.     Officials – Administration’s duty to have regard to the welfare of officials – Scope – Limits

7.     Officials – Non-contractual liability of the administration – Administrative fault – Communication by a Community administration to its entire staff of a perfectly regular and non-disciplinary decision to reassign an official – Communication liable to give impression that a disciplinary measure was being adopted – Damage to the reputation of the official reassigned – Non-material damage

1.     It is not for the Court of First Instance to make declarations of principle or to issue directions to Community institutions as part of an action brought under Article 91 of the Staff Regulations. If applicable, when a measure is annulled, the institution concerned is obliged by Article 233 EC to take the measures required to comply with the judgment.

(see para. 38)

See: T‑243/02 J v Commission [2003] ECR-SC I‑A‑99 and II‑523, para. 4; T‑14/03 DiMarzio v Commission [2004] ECR-SC I-A-43 and II-167, para. 63

2.     The institutions have a wide discretion to organise 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 interest of the service and in conformity with the principle of the equivalence of posts.

Having regard to the extent of the institutions’ discretion in evaluating the interests of the service, the review undertaken by the Community judicature of whether the condition regarding the interests of the service has been respected must be confined to the question whether the appointing authority remained within reasonable limits and did not use its discretion in a manifestly wrong way.

An institution is entitled to deem, in the application of the broad power with which it is vested for organising its services, that the interest of the service justifies the reassignment of an official decided as part of the operational reorganisation of the administrative structures of that institution. When the official concerned has expressed his objection to this reorganisation by generating significant and irreversible tension with his management on the subject, the reassignment of that official is even more strongly justified in the interest of the service.

(see paras 61, 64, 75, 104)

See: 19/87 Hecq v Commission [1988] ECR 1681, para. 6; C‑116/88 and C‑149/88 Hecq v Commission [1990] ECR I‑599, para. 11; T‑98/96 Costacurta v Commission [1998] ECR-SC I‑A‑21 and II‑49, para. 36; T‑223/99 Dejaiffe v OHIM [2000] ECR-SC I‑A‑277 and II‑1267, para. 53; T‑51/01 Fronia v Commission [2002] ECR-SC I‑A‑43 and II‑187, para. 55; T‑103/01 Cwik v Commission [2002] ECR-SC I‑A‑229 and II‑1137, para. 30

3.     The principle of equivalence of grade and post calls, in the event of a change in an official’s duties, not for a comparison between his present and previous duties but for a comparison between his present duties and the grade which he occupies within the scale of posts. Accordingly, there is nothing to preclude a transfer decision involving the attribution of new duties which, although different from those previously carried out by the official and seen by him as constituting a diminution of his duties and powers, are nevertheless in conformity with the post corresponding to his grade. Thus, an effective decrease in the responsibilities of an official infringes the principle of equivalence of grade and post only if the official’s responsibilities, taken together, are clearly short of those corresponding to his grade and post, taking account of their character, their importance and their scope.

(see para. 113)

See: T‑59/91 and T‑79/91 Eppe v Commission [1992] ECR II‑2061, paras 49 and 51; T‑78/96 and T‑170/96 W v Commission [1998] ECR-SC I‑A‑239 and II‑745, para. 104, and the case-law cited therein; Fronia v Commission, cited above, para. 50

4.     If a mere measure of internal organisation, taken in the interests of the service, does not affect the official’s position under the Staff Regulations or infringe the principle that the post to which he is assigned should correspond to his grade, the administration is not obliged to state the grounds on which the decision is based.

(see paras 132, 178)

See: 338/82 Albertiniand Others v Commission [1984] ECR 2123, para. 46; C‑116/88 and C-149/88 Hecq v Commission, cited above, para. 14; Cwik v Commission, cited above, para. 62

5.     Although an official or an agent of the European Communities is perfectly entitled to make critical observations regarding a restructuring envisaged by management, thereby exercising his right to freedom of expression granted by Article 10 of the European Convention on Human Rights, the exercise of such a right is not without limits. In that regard, Article 10(2) of that convention provides that the exercise of freedom of expression carries with it duties and responsibilities and as such may be subject to certain conditions or restrictions. Also, specific restrictions on the exercise of the right of freedom of expression can, in principle, be justified by the legitimate aim of protecting the rights of the institutions that are charged with carrying out tasks in the public interest, which citizens must be able to rely on their doing effectively.

In exercising their power of review, the Community Courts must decide, having regard to all the circumstances of the case, whether a fair balance has been struck between the individual’s fundamental right to freedom of expression and the legitimate concern of the institution to ensure that its officials and agents observe the duties and responsibilities implicit in the performance of their tasks.

Regarding the balance to be struck between the right of officials to freedom of expression and the right of the institutions to deploy the staff available to them as part of organising the services in accordance with their needs, under Article 7 of the Staff Regulations, the interest of the service and the principle of assignment to an equivalent post manifestly constitute conditions intended to ensure a balance between these rights. Indeed, these conditions afford the institution concerned the discretion required when organising its services by allowing the possibility of reassigning officials to different duties to those that they initially performed, whilst guaranteeing to the officials concerned that such a reassignment is not motivated by arbitrary considerations unrelated to the interest of the service and does not affect their position under the Staff Regulations. As a result, provided that the reassignment decision respects the interest of the service and the principle of assignment to an equivalent post, it cannot infringe the freedom of expression of the person concerned.

(see paras 157-162)

See: C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paras 43 to 48

6.     The administration’s duty to have regard for the welfare of officials reflects the balance of reciprocal rights and obligations created by the Staff Regulations in relationships between the public authority and its members of staff. Although, by virtue of this principle, the competent authority is bound in assessing the interests of the service to take into consideration all elements capable of affecting its decision, including the interests of the member of staff concerned, this consideration of an official’s interests does not go so far as to preclude the appointing authority from reassigning him against his will.

(see para. 192)

See: Costacurta v Commission, cited above, para. 78; Cwik v Commission, cited above, para. 52

7.     The communication informing the entire staff of a Community administration by e-mail of an individual decision to reassign an official, which decision is not marred by any defect liable to affect its legality and does not as such constitute a disciplinary sanction since it is in accordance with the interest of the service and respects the principle of assignment to an equivalent post, constitutes nevertheless an administrative fault liable to create an entitlement to compensation where its author has, by using the expression ‘relieved of his duties’ with its obvious disciplinary connotations, given the erroneous impression that that decision constituted such a sanction, if the staff, or at least a part thereof, has been strongly induced to believe that a sanction justified by such reasons had been imposed on the official in question through his transfer to another service. Such a fault was the cause of non-material damage to the interested party, an official whose professional qualities were appreciated both by his superiors and by his colleagues, since that fault placed him in the situation of continually having to justify himself before his colleagues with regard to the measure to which he was subjected.

(see paras 202-210)

See: T‑100/00 Campoli v Commission [2001] ECR-SC I‑A-71 and II‑347, para. 76; T‑338/00 and T‑376/00 Morello v Commission [2002] ECR-SC I‑A‑301 and II‑1457, para. 150