(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)

(Staff Regulations, Art. 7(1))

(Staff Regulations, Art. 7(1))

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))

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

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

(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

(see paras 132, 178)

See: 338/82 Albertini and 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

(see para. 192)

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

(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