Important legal notice

61988C0116

European Court reports 1990 Page I-00599

Opinion of the Advocate-General

Mr President, Members of the Court, 1 . The Court has before it two applications from Mr Hecq which are rather similar to applications previously made by the same applicant and upon which judgments were delivered on 23 March 1988 ( Case 19/87 ) and 14 December 1988 ( Case 280/87 ).

3 . From 6 February to 4 May 1987 Mr Hecq was absent from work for health reasons . During that period Mr Petersen, Head of the Buildings Department, made other officials responsible for the buildings which were previously in Mr Hecq' s charge . By a memorandum of 22 April 1987 Mr Petersen, anticipating that Mr Hecq would return on 27 April 1987, informed him as follows :

"When you return to work I would like you to carry out an audit of the Overijse complex . The audit, which I would like to have by 18 May, will draw up a complete inventory of the complex, broken down by building trade, and suggest possible repairs, or even improvements, to make the building more functional . All proposals must of course be accompanied by estimates so that an assessment can be made of the impact they will have on the budget ."

4 . During the oral procedure it was established that Mr Hecq, who did not ultimately return to work until 4 May 1987, contacted the manager of the Overijse leisure complex by telephone before that date . He sent Mr Hecq a two-page memorandum on 29 April 1987 listing "work outstanding at the centre" ( Annex 4 to the application ). That list was supplemented by memoranda of 6 May and 1 June 1987 concerning matters of minor importance .

5 . It is common ground that Mr Hecq never submitted to his superior the comprehensive inventory of work, with estimates, which he had been asked to compile .

6 . On the contrary, on 13 July 1987 Mr Hecq lodged a complaint against the decision of 22 April 1987 . The Commission rejected that complaint on 25 November 1987 and Mr Hecq then brought the action in question in Case C-116/88 seeking the annulment both of the rejection of the complaint and of the decision which was the subject-matter of that complaint .

7 . By a decision of 31 July 1987, confirmed by a formal measure of 16 September 1987, the applicant was then assigned to new duties in Luxembourg . Mr Hecq considered that disciplinary action had been taken against him and on 28 October 1987 he lodged a complaint which the Commission rejected on 27 May 1988 . The applicant subsequently brought the action in Case C-149/88 seeking the annulment of the decision of 31 July 1987 and of the rejection of the complaint lodged against that decision .

Concerning Case C-116/88

1 . The admissibility of the application

9 . The Commission claims first of all that the action is inadmissible on two grounds .

10 . ( a ) It submits first of all that the action against the decision to give Mr Hecq the task of carrying out an audit of the Overijse complex is devoid of purpose because the decision ceased to produce any effects well before the action was brought . Mr Hecq was reassigned to Luxembourg with effect from 1 November 1987 while the action was not brought until 14 April 1988 . The action is therefore inadmissible on the ground that the applicant has no current interest .

11 . It must in fact be recognized that annulling the decision of 22 April 1987 would not enable Mr Hecq to resume the duties which he performed before that date because in the meantime he has been appointed to other duties in Luxembourg .

13 . Contrary to what might be supposed from merely reading its contents, the memorandum of 22 April 1987 was not a purely provisional measure which left open the possibility of Mr Hecq resuming his former duties automatically once his task at Overijse had been completed . On the contrary, the Commission admits in a memorandum appearing on page 6A of its defence that the decision was indeed an actual reassignment in so far as it took away Mr Hecq' s former duties and gave him only a purely temporary task to perform .

14 . The aspect concerning the taking away of his former duties might possibly raise problems with regard to the Staff Regulations since the new functions, albeit temporary, were on the whole inferior to those normally performed by an official in Grade B 3 . Secondly, since the applicant did not successfully complete the task he had been entrusted with, he has an interest in protecting his reputation and career prospects by establishing any unlawfulness in the decision in question .

15 . ( b ) In the alternative, the Commission claims that the application is also inadmissible because the decision is not capable of adversely affecting the applicant . It constitutes a mere "measure designed to improve internal organization without affecting the rights under Articles 5 and 7 of the Staff Regulations of the official concerned ". ( 2 )

16 . However, that is precisely what the applicant disputes in his arguments on the substance of the case . In my view, therefore, it is not possible to conclude from the outset that the application in Case C-116/88 is inadmissible; on the contrary, it is necessary to consider the substance of the case .

17 . The applicant claims first of all that the Commission assigned him to duties which were not in keeping with his grade and post . Consequently, it infringed in particular Articles 5(4 ) and 7(1 ) of the Staff Regulations .

18 . In support of that argument the applicant puts forward two contradictory submissions .

19 . He maintains firstly that if his task at the Overijse complex was concerned only with heating and sanitation it fell well short of what may be expected from an assistant in Grade B 3/B 2 .

20 . In that regard, however, it is sufficient to point out that the audit did not cover only heating and sanitation . Consequently Mr Hecq was not "downgraded ".

21 . Mr Hecq also maintains that if the audit is to be regarded as covering all aspects of the Overijse complex, the duties assigned to him go well beyond what may reasonably be expected of an assistant in Grade B 3 .

22 . However, I have already mentioned that Mr Hecq was assisted by the building manager, who sent him a fairly long list of the work to be done . Consequently, Mr Hecq needed only to review, with the building manager, the problems which the latter had drawn attention to, to form an opinion on them and to contact potential suppliers, contractors, and craftsmen in order to estimate as accurately as possible the cost of the work accepted as necessary . In his inventory with estimated costs he could legitimately have drawn attention to the fact that he is not a specialist in all the fields in question and that he could in no way guarantee the accuracy of his assessments .

23 . The job description for a technical assistant in Grade B 3/B 2 adopted by the Commission provides inter alia that an official in that grade is "engaged in carrying out difficult and complex tasks in the light of general directives ".

That definition matches the tasks entrusted to Mr Hecq, which, carried out in the way described above, do not exceed the capabilities of a technical assistant in Grade B 3 .

24 . Moreover, in view of the scale of the task he was given to carry out at Overijse, it could be argued that Mr Hecq was in charge of a "section of an administrative unit" within the meaning of the abovementioned job description .

25 . It must be concluded that Mr Hecq was not assigned to a post at Overijse which did not correspond to his grade ( Article 7(1 ) of the Staff Regulations ) or to the description of the duties and powers attaching to the basic post of a technical assistant in Career Bracket B 3/B 2 ( Article 5(4 ) of the Staff Regulations ).

26 . Consequently the administrative order of 22 April 1987 did not infringe the principle that an official' s post must correspond to his grade .

3 . Infringement of Article 25 in conjunction with Article 7(1 ) of the Staff Regulations

27 . The second paragraph of Article 25 of the Staff Regulations states that "any decision adversely affecting an official shall state the grounds on which it is based ".

However, the Court has consistently held that :

"it is not possible to regard as a measure adversely affecting an official, within the meaning of Article 25 of the Staff Regulations and as such subject to the requirement that the administrative authority should state the grounds on which it is based, a measure of internal organization which is not of such a nature as to affect the official' s position under the Staff Regulations or to infringe the principle that the post to which he is assigned should correspond to his grade ". ( 3 )

28 . Since that was the position in the present case, the submission that Article 25 was infringed cannot be upheld .

29 . The applicant also claims, however, that even if it was not necessary for the act to contain a statement of the "external grounds", it needed nevertheless to be based on "internal grounds" pursuant to the Staff Regulations . In other words, it should have been based on the interest of the service, expressly referred to in Article 7(1 ), as the only valid ground for any decision to assign or transfer an official . In the present case, the statement of grounds contained an error and evidence of a misuse of power .

30 . In this regard, it is necessary, in my opinion, to refer to the letter of 22 December 1987 by which the Commission rejected Mr Hecq' s complaint .

31 . That letter puts forward the following arguments in support of the contested decision :

( a)in order to ensure that the department operated effectively, the Head of the Buildings Department found it necessary, during a long period when the applicant was absent from work, to allocate to other officials the buildings which were in Mr Hecq' s charge because buildings could not remain for such a long period without anyone being in charge of them;

( b)when Mr Hecq returned to work, the exigencies of the service at that time required that priority should be given to the carrying out of an audit of the Overijse complex;

( c)the tasks entrusted to Mr Hecq within the context of the audit corresponded to his grade;

( d)the decision at issue was taken in the interest of the service, in respect of which the administration has and must always have a wide discretionary power .

32 . The only one of those grounds which is still in dispute at this stage is the ground that priority was to be given to the carrying out of an audit of the Overijse complex . However, the applicant has not succeeded in proving that the Commission committed a manifest error of assessment in that regard . The fact that the Commission did not conclude a contract with a firm of architects until a long time after the applicant had refused to carry out the audit is not conclusive . It is evident from that contract, which the Commission has entered in the file, that it is much wider in scope than the task given to the applicant .

33 . Consequently the decision of the Director-General for Personnel was taken on the basis of lawful grounds and does not contain a manifest error . Therefore it is unnecessary to consider the alternative submissions made by the Commission in the written procedure .

4 . Infringement of the general principle of sound administration and the duty to have regard to the interests of the official concerned

34 . The applicant claims that the administration took the decision of 22 April 1987 without having regard to his interests . Moreover, he was not allowed to put forward his point of view before the decision was taken . A fuller account of Mr Hecq' s arguments and the Commission' s replies is contained in the Report for the Hearing .

35 . In my view, the assessment of this submission hinges on the following considerations .

36 . In the judgment of 29 0ctober 1981 in Case 125/80 Arning v Commission (( 1981 )) ECR 2539, at p . 2555, the Court stated that, "although it is indeed the case that, in taking a decision concerning the situation of an official, the authority must take into account not only the interests of the service but also those of the official concerned, this consideration cannot prevent the authority from undertaking a rationalization of departments if it believes that this is necessary ".

That reasoning must apply a fortiori when it is a question of a mere provisional administrative order involving work which falls within the range of tasks which a technical assistant in Grade B 3 may be requested to carry out .

37 . Furthermore, I do not see how the measure at issue was injurious to Mr Hecq' s personal interest . Mr Hecq had been absent from work since 6 February and there was uncertainty about his final recovery . ( 4 ) It could therefore appear appropriate, "on his return to work" and in view of the absence of the head of department from 24 April to 11 May, to assign him to only temporary duties which were intended, in principle, to be completed on 18 May 1987 .

38 . Moreover, as the Court pointed out in paragraph 20 of the judgment in the first Hecq case ( judgment of 23 March 1988 in Case 19/87 (( 1988 )) ECR 1681 ), it is clear from the case-law of the Court that although the Staff Regulations contain precise guarantees of officials' rights under them, the administration of the Community institutions is not under any duty to seek the individual views of officials on measures of reorganization which may affect their position .

39 . That applies a fortiori to a provisional administrative order .

40 . Furthermore, in the judgment in the second Hecq case ( judgment of 14 December 1988 in Case 280/87 (( 1988 )) ECR 6433 ) the Court stated that when there is no measure adversely affecting the official the administration is not obliged to give the official concerned a hearing ( paragraph 11 ).

41 . As I have come to the conclusion that none of the applicant' s submissions can be upheld, I obviously must propose that the Court should dismiss the application in Case C-116/88 in its entirety .

42 . With regard to the costs, the Commission asks the Court to declare the application unreasonable because it contends that it is common ground that the annulment of the decision in question could not benefit the applicant .

43 . The applicant, for his part, points out that the circumstances in this case are different from the circumstances in cases where the Court has recognized that an application is vexatious or unreasonable . Consequently, the action is not manifestly inadmissible or manifestly unfounded . The applicant did not make use of excessive means of attack in his application; nor was his application manifestly dilatory .

Concerning Case C-149/88

"Under the direct authority of Mr Vial, Mr Collovald and the Head of Division IX-E-2, to monitor the technical installations of the Cube Building which has recently been enlarged and fitted out.

Since the Cube Building is intended to house the Euratom Safeguards Directorate of the Directorate-General for Energy (XVII), a directorate with numerous laboratories and specialized equipment, including considerable data-processing equipment, the presence of an official in Grade BT is useful because of the nature, quantity and grade of the standard and specialized technical equipment in that building.

The official must be able to evaluate what measures are necessary for the proper functioning of the equipment, to notify the competent services and/or to take the emergency measures required for the safety of the building."

(a) monitoring the functioning and the maintenance of the Centre polyvalent de l'enfance;

(b) preparing a draft specification for an invitation to tender for the renewal of the maintenance contracts for the lifting equipment in the Jean Monnet Building.

62However, it should be pointed out that, in the present case, the decision was taken after meetings had taken place during which the Director-General for Personnel and Administration explained the situation to the applicant and the reasons why he was required to make the choice he was.

Consequently, there is no need to consider the other arguments put forward by the Commission.

3. Infringement of the general principle of sound administration and the administration's duty to have regard to the interests of its officials

5. Infringement of the right of association and trade union rights

Conclusion

(*) Original language: French.

(1) Judgment of 17 January 1989 in Case 293/87 Vainker v Parliament ((1989)) ECR 23, paragraphs 7 to 9.

(2) Here the Commission is citing the judgments of 11 July 1968 in Case 16/67 Labeyrie v Commission ((1968)) ECR 293 and of 12 July 1979 in Case 124/78 List v Commission ((1979)) ECR 2510.

(3) See in particular the judgment of 17 May 1984 in Case 338/82 Albertini and Montagnani v Commission ((1984)) ECR 2145, paragraph 46.

(4) The contested memorandum of 22 April 1987 is revealing in this regard since its author "hopes" that the applicant will return on 27 April 1987 whereas he did not return until 4 May 1987.

(5) See by analogy the judgment of 9 March 1978 in Case 54/77 Herpels v Commission ((1978)) ECR 585, at p. 601, paragraph 54.

(6) See the judgment of 27 June 1973 in Case 35/72 Kley v Commission ((1973)) ECR 679.

(7) See the judgment in Kley, cited above, and also the judgments of 1 May 1983 in Joined Cases 36, 37 and 218/81 Seton v Commission ((1983)) ECR 1789 and of 29 October 1981 in Case 125/80 Arning v Commission ((1981)) ECR 2553.

( 8 )Judgment of 10 July 1975 in Joined Cases 4 and 30/74 Scuppa v Commission (( 1975 )) ECR 919 .

( 9 )Judgment of the Court of 14 June 1979 in Case 18/87 Mrs V . v Commission (( 1979 )) ECR 2093 .

( 10 )See the judgment of 6 May 1969 in Case 21/68 Huybrechts v Commission (( 1969 )) ECR 85 .

( 11 )See the judgments of 23 January 1986 in Case 173/84 Rasmussen v Commission (( 1986 )) ECR 204 and of 24 February 1981 in Joined Cases 161 and 162/80 Carbognani and Coda Zabetta v Commission (( 1981 )) ECR 543, at p . 564 .