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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Maria Grazia Carbognani and Marisa Coda Zabetta v Commission of the European Communities. [1981] EUECJ C-161/80 (24 February 1981)
URL: http://www.bailii.org/eu/cases/EUECJ/1981/C16180.html
Cite as: [1981] EUECJ C-161/80
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
   

61980J0161
Judgment of the Court (Second Chamber) of 24 February 1981.
Maria Grazia Carbognani and Marisa Coda Zabetta v Commission of the European Communities.
Staff regulations of officials - Assignment and transfer.
Joined cases 161/80 and 162/80.
European Court reports 1981 Page 00543

 
   








1 . OFFICIALS - APPLICATIONS TO THE COURT - ACT ADVERSELY AFFECTING AN OFFICIAL - ACT WHICH MAY BE OBJECTIVELY CONSIDERED AS A FINAL DECISION
( STAFF REGULATIONS OF OFFICIALS , ARTS 90 AND 91 )
2 . OFFICIALS - TRANSFER - RE-ASSIGNMENT - BASIS OF DISTINCTION - SAME CONDITIONS
( STAFF REGULATIONS OF OFFICIALS , ARTS 4 , 7 ( 1 ) AND 29 )
3 . OFFICIALS - POSTING - OBLIGATION OF THOSE CONCERNED TO ACCEPT , IN ANY PART OF THE COMMUNITY , ANY POSTING COMPATIBLE WITH THEIR GRADE
( STAFF REGULATIONS OF OFFICIALS , ART . 7 ( 1 ))
4 . OFFICIALS - ORGANIZATION OF DEPARTMENTS - DISCRETIONARY POWER OF THE ADMINISTRATION - BOUNDS - OBSERVANCE OF GUARANTEES PROVIDED BY THE STAFF REGULATIONS - OFFICIALS ' CONSENT TO A RE-ASSIGNMENT NOT REQUIRED
5 . OFFICIALS - POST - NON-ALTERATION OF PLACE OF EMPLOYMENT - RESTRICTED TO LOCAL STAFF - NOT APPLICABLE TO OFFICIALS EMPLOYED UNDER THE STAFF REGULATIONS OR TO CERTAIN CATEGORIES OF THEM
( STAFF REGULATIONS OF OFFICIALS , ART . 7 ( 1 ); CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , ART . 4 )
6 . OFFICIALS - DECISION ADVERSELY AFFECTING AN OFFICIAL - OBLIGATION TO STATE GROUNDS - SCOPE
( STAFF REGULATIONS OF OFFICIALS , SECOND PARAGRAPH OF ART . 25 )


1 . THE ADMISSIBILITY OF AN ACTION CHALLENGING A COMMUNICATION FROM THE ADMINISTRATION CANNOT BE QUESTIONED ON THE GROUND THAT THE COMMUNICATION IS MERELY AN ACT PREPARATORY TO A DECISION YET TO BE MADE BY THE APPOINTING AUTHORITY , WHERE ITS CONTENT AND THE NATURE OF ITS SOURCE ARE SUCH THAT IT MAY BE OBJECTIVELY CONSIDERED AS AMOUNTING TO A FINAL DECISION TAKEN BY THE APPROPRIATE ADMINISTRATIVE AUTHORITY .

2 . WITHIN THE GENERAL SCHEME OF THE STAFF REGULATIONS OF OFFICIALS THERE IS A TRANSFER , IN THE STRICT SENSE OF THE TERM , ONLY WHERE AN OFFICIAL IS TRANSFERRED TO A VACANT POST . IT FOLLOWS THAT ANY TRANSFER , PROPERLY SO CALLED , IS SUBJECT TO THE FORMALITIES PRESCRIBED BY ARTICLES 4 AND 29 OF THE STAFF REGULATIONS . HOWEVER , THOSE FORMALITIES DO NOT APPLY WHEN AN OFFICIAL IS RE-ASSIGNED WITH HIS POST BECAUSE SUCH A TRANSFER DOES NOT GIVE RISE TO A VACANT POST .

NONE THE LESS , DECISIONS RE-ASSIGNING OFFICIALS ARE SUBJECT IN THE SAME WAY AS TRANSFERS , AS REGARDS SAFEGUARDING THE RIGHTS AND LEGITIMATE INTERESTS OF THE OFFICIALS CONCERNED , TO THE PROVISIONS OF ARTICLE 7 ( 1 ) OF THE STAFF REGULATIONS , INASMUCH AS OFFICIALS MAY BE RE-ASSIGNED ONLY IN THE INTERESTS OF THE SERVICE AND IN COMPLIANCE WITH THE REQUIREMENT THAT POSTS MUST CORRESPOND TO THE OFFICIALS ' GRADES .

3 . THE WAY IN WHICH THE COMMUNITY ' S ADMINISTRATION FUNCTIONS IMPLIES A DUTY ON THE PART OF EVERY EUROPEAN OFFICIAL TO ACCEPT ANY ASSIGNMENT PROVIDED THAT IT IS CONSISTENT WITH THE CATEGORY AND GRADE OF HIS POST AND IN ACCORDANCE WITH THE REQUIREMENTS OF THE SERVICE , THROUGHOUT THE COMMUNITY , IN EVERY PLACE OF EMPLOYMENT WITHIN THE INSTITUTION IN WHICH HE TOOK UP HIS DUTIES . CONSTRAINTS OF A PERSONAL AND FAMILY NATURE TO WHICH THOSE CONDITIONS MAY GIVE RISE IN THE OPERATION OF THE SERVICE ARE COMPENSATED FOR BY THE ADVANTAGES AND PRIVILEGES CONFERRED BY THE CONDITIONS OF EMPLOYMENT IN THE EUROPEAN PUBLIC SERVICE .

4 . THE COMMUNITY INSTITUTIONS ARE AT LIBERTY TO ORGANIZE THEIR OFFICES TO SUIT THE TASKS ENTRUSTED TO THEM AND TO ASSIGN THE STAFF AVAILABLE TO THEM IN THE LIGHT OF SUCH TASKS , PROVIDED THAT THEY OBSERVE THE GUARANTEES EMBODIED IN THE STAFF REGULATIONS AND IN PARTICULAR THE RULE IN ARTICLE 7 OF THE STAFF REGULATIONS WHICH PROVIDES EVERY OFFICIAL WITH THE ASSURANCE OF BEING GIVEN A POST SUITED TO HIS CATEGORY AND GRADE WHATEVER THE CIRCUMSTANCES . THERE IS NO SUPPORT IN THE STAFF REGULATIONS FOR THE ARGUMENT THAT A RE-ASSIGNMENT CANNOT NORMALLY OCCUR WITHOUT THE AGREEMENT OF THE OFFICIAL CONCERNED ; THAT WOULD HAVE THE EFFECT OF IMPOSING AN INTOLERABLE RESTRICTION ON THE INSTITUTIONS ' DISCRETION IN ORGANIZING THEIR SERVICES AND IN ADAPTING THAT ORGANIZATION TO CHANGING REQUIREMENTS .

5 . IT WOULD BE CONTRARY TO THE SPIRIT OF THE STAFF REGULATIONS , WHICH ARE THE SAME FOR ALL THOSE GOVERNED BY THEM , TO INTRODUCE DIFFERENT TREATMENT FOR EACH CATEGORY REGARDING THE GEOGRAPHICAL ASSIGNMENT OF OFFICIALS . ONLY LOCAL STAFF , WHO ARE RECRUITED UNDER CONTRACT IN A PARTICULAR PLACE , ARE ENTITLED TO OBJECT TO A CHANGE IN THEIR PLACE OF EMPLOYMENT BECAUSE FOR THEM THE CONTINUITY OF SERVICE AT THEIR PLACE OF WORK IS PART OF THEIR ACTUAL CONDITIONS OF EMPLOYMENT ; THAT CONTINUITY IS , MOREOVER , BALANCED BY THE FACT THAT SUCH STAFF DO NOT ENJOY THE BENEFITS CONFERRED ON OFFICIALS UNDER THE STAFF REGULATIONS .

6 . A DECISION ADVERSELY AFFECTING AN OFFICIAL DOES NOT REQUIRE A SPECIFIC STATEMENT OF THE GROUNDS ON WHICH IT IS BASED IF , ACCOUNT BEING TAKEN OF THE CONTEXT IN WHICH IT WAS MADE AND WHICH WAS WELL KNOWN TO THE OFFICIAL CONCERNED , THE LATTER WAS AWARE BOTH OF THE GROUNDS FOR THE MEASURE AND OF THE OPPORTUNITY FOR HIM TO PRESENT ANY OBJECTIONS HE MIGHT HAVE .


IN JOINED CASES 161 AND 162/80
MARIA GRAZIA CARBOGNANI AND MARISA CODA ZABETTA , OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN ROME , REPRESENTED BY BLANCHE MOUTRIER OF THE LUXEMBOURG BAR AND GUIDO NAPOLETANO OF THE ROME BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF BLANCHE MOUTRIER , 11A AVENUE DE LA PORTE-NEUVE ,
APPLICANTS ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JORN PIPKORN , A MEMBER OF ITS LEGAL DEPARTMENT , 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 ,


APPLICATIONS FOR THE ANNULMENT OF THE DECISIONS NOTIFIED ON 17 DECEMBER 1979 WHEREBY THE COMMISSION DECLARED THE POSTS OF MISS CARBOGNANI AND MISS CODA ZABETTA AT THE INFORMATION OFFICE IN ROME VACANT AND ORDERED THE SAID OFFICIALS TO BE TRANSFERRED TO BRUSSELS ,


1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 11 JULY 1980 MISS CARBOGNANI AND MISS CODA ZABETTA , OFFICIALS IN GRADE C 2 ASSIGNED AS SECRETARIES TO THE COMMISSION ' S INFORMATION OFFICE IN ROME , BROUGHT ACTIONS SEEKING THE ANNULMENT OF DECISIONS WHEREBY THE COMMISSION ORDERED THEIR TRANSFER FROM THE ROME OFFICE TO HEADQUARTERS IN BRUSSELS .

2 MISS CARBOGNANI ORIGINALLY ENTERED THE SERVICE OF THE HIGH AUTHORITY OF THE ECSC IN 1962 . SHE WORKED IN LUXEMBOURG UNTIL 5 JULY 1968 AND WAS THEN TRANSFERRED TO DIRECTORATE-GENERAL X OF THE COMMISSION AND ASSIGNED TO THE INFORMATION OFFICE IN ROME .

3 MISS CODA ZABETTA ENTERED THE SERVICE OF THE COMMISSION OF THE EEC IN 1965 . SHE WORKED IN BRUSSELS UNTIL 5 JULY 1968 AND WAS THEN TRANSFERRED , LIKE HER COLLEAGUE , TO DIRECTORATE-GENERAL X AND ASSIGNED TO THE INFORMATION OFFICE IN ROME .

4 BY A DECISION OF 24 NOVEMBER 1976 THE COMMISSION INTRODUCED A ROTATION SYSTEM FOR THE INFORMATION OFFICES . ACCORDING TO THAT DECISION THE NORMAL LENGTH OF ASSIGNMENT OF OFFICIALS TO POSTS AWAY FROM HEADQUARTERS IS HENCEFORTH THREE YEARS , A PERIOD WHICH MAY BE EXTENDED , FOR ONE YEAR AT A TIME , BY UP TO THREE YEARS AT THE MOST . THE SCHEME APPLIES TO ALL STAFF IN CATEGORIES A , B AND C . HOWEVER , IN THE CASE OF OFFICIALS IN CATEGORIES B AND C REGARD MAY BE HAD TO SPECIAL DIFFICULTIES RELATING TO THE NEEDS OF THE SERVICE OR TO PROBLEMS OF A PERSONAL NATURE . BY VIRTUE OF THE SAME DECISION A ROTATION PLAN IS TO BE DRAWN UP EACH YEAR BY AN AD HOC COMMITTEE AND APPROVED BY THE COMMISSION .

5 ON 2 OCTOBER 1979 THE COMMITTEE DECIDED TO ENTER THE APPLICANTS ' NAMES ON THE LIST OF TRANSFERS PROPOSED FOR 1980 ; THE LIST WAS APPROVED BY THE COMMISSION ON 28 NOVEMBER 1979 .
6 ON 17 DECEMBER 1979 THE DIRECTOR-GENERAL FOR PERSONNEL SENT EACH OF THE APPLICANTS A LETTER IN WHICH , AFTER REFERRING TO THE DECISION INTRODUCING THE ROTATION SCHEME , HE INFORMED THEM THAT THEIR NAMES HAD BEEN ENTERED ON THE LIST OF TRANSFERS TO BE EFFECTED IN 1980 AND REQUESTED THEM TO PREPARE FOR THEIR RETURN TO HEADQUARTERS IN BRUSSELS IN SEPTEMBER OF THAT YEAR .

7 HAVING SUBMITTED THEIR OBSERVATIONS TO THE ADMINISTRATION , ON 12 MARCH 1980 THE APPLICANTS LODGED COMPLAINTS IN SIMILAR TERMS UNDER ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS . IN THE ABSENCE OF A REPLY FROM THE COMMISSION WITHIN THE PERIOD LAID DOWN IN THAT PROVISION , THEY BROUGHT ACTIONS ON 11 JULY 1980 SEEKING THE ANNULMENT OF THE DECISIONS TO TRANSFER THEM . AT THE SAME TIME THEY SUBMITTED APPLICATIONS UNDER ARTICLE 83 OF THE RULES OF PROCEDURE FOR THE ADOPTION OF INTERIM MEASURES SUSPENDING THE IMPLEMENTATION OF THE CONTESTED DECISIONS .

8 IN AN ORDER DATED 31 JULY 1980 THE JUDGE ACTING AS PRESIDENT OF THE COURT NOTED THAT THE COMMISSION DID NOT CONSIDER THE ABOVE-MENTIONED LETTERS FROM THE DIRECTOR-GENERAL FOR PERSONNEL TO BE FORMAL DECISIONS BUT MERELY ADVANCE NOTICES AND HELD THAT IT WAS NOT NECESSARY TO ADJUDICATE UPON THE APPLICATIONS FOR THE ADOPTION FOR INTERIM MEASURES .

9 ON THE SAME DAY THE HEAD OF THE MANAGEMENT AND ORGANIZATION DEPARTMENT , ACTING AS THE APPOINTING AUTHORITY , SIGNED FORMAL DECISIONS TRANSFERRING THE APPLICANT TO BRUSSELS WITH EFFECT FROM 1 JANUARY 1981 .
10 AFTER FRESH APPLICATIONS FOR THE ADOPTION OF INTERIM MEASURES HAD BEEN SUBMITTED BY THE APPLICANTS ON 5 DECEMBER 1980 , SEEKING TO DELAY IMPLEMENTATION OF THE DECISIONS TO TRANSFER THEM , THE COMMISSION DECIDED TO DEFER THE OPERATION OF THE DECISIONS UNTIL 1 APRIL 1981 IN ORDER TO GIVE THE COURT AN OPPORTUNITY TO ADJUDICATE UPON THE ACTIONS . AS A RESULT , THE APPLICANTS WITHDREW THEIR APPLICATIONS FOR THE ADOPTION OF INTERIM MEASURES .

11 BY AN ORDER DATED 18 DECEMBER 1980 THE TWO CASES WERE JOINED FOR THE PURPOSES OF THE ORAL PROCEDURE AND FOR JUDGMENT .

ADMISSIBILITY
12 THE COMMISSION MAINTAINS THAT THE APPLICATIONS ARE INADMISSIBLE ON THE GROUND THAT THE SUBJECT-MATTER OF THE APPLICATIONS , NAMELY THE LETTERS FROM THE DIRECTOR-GENERAL FOR PERSONNEL DATED 17 DECEMBER 1979 , WERE MERELY MEASURES TAKEN IN PREPARATION FOR A DECISION TO BE ADOPTED LATER BY THE APPOINTING AUTHORITY . THUS AT THE TIME WHEN THE APPLICATIONS WERE SUBMITTED NO FORMAL AND DEFINITIVE DECISION HAD YET BEEN TAKEN BY THE COMPETENT AUTHORITY . THAT AUTHORITY , IN THE PERSON OF THE HEAD OF THE MANAGEMENT AND ORGANIZATION DEPARTMENT , ADOPTED SUCH A DECISION ON 31 JULY 1980 .
13 THE OBJECTION CANNOT BE UPHELD .

14 IN VIEW OF BOTH THE WORDING OF THE LETTERS OF 17 DECEMBER 1979 AND THE AUTHORITY OF THEIR AUTHOR , THE APPLICANTS CANNOT BE BLAMED FOR CONSIDERING THOSE COMMUNICATIONS TO BE DECISIONS TAKEN BY THE APPOINTING AUTHORITY . HAD THEY FAILED TO CHALLENGE THOSE DECISIONS UNDER ARTICLE 90 OF THE STAFF REGULATIONS THEY WOULD HAVE RISKED SUBSEQUENT DEFEAT ON THE GROUND OF INADMISSIBILITY FOR NOT HAVING CHALLENGED IN DUE TIME ACTS WHICH , SINCE THEY INFORMED THE APPLICANTS THAT THEIR RETURN TO HEADQUARTERS WOULD TAKE PLACE ' ' BY SEPTEMBER 1980 AT THE LATEST ' ' , COULD BE CONSIDERED OBJECTIVELY AS AMOUNTING TO FINAL DECISIONS .

15 SINCE , APART FROM THE DATE ON WHICH IT WAS ADOPTED , THE PURPORT OF THE DECISION OF THE APPOINTING AUTHORITY IS IDENTICAL TO THAT OF THE PREPARATORY DECISION OF 17 DECEMBER 1979 , THE TWO ACTS MAY BE CONSIDERED AS A SINGLE DECISION FOR THE PURPOSE OF CHALLENGING THEM IN COURT .

SUBSTANCE
16 IN SUPPORT OF THEIR ACTIONS THE APPLICANTS ADVANCE TWO ARGUMENTS RELATING TO THE INFRINGEMENT OF VARIOUS PROVISIONS OF THE STAFF REGULATIONS AND ON THE INADEQUACY OF THE STATEMENT OF THE REASONS ON WHICH THE DECISIONS ARE BASED . IN THEIR REPLY AND IN THE ORAL PROCEDURE THEY ALSO PUT FORWARD AN ARGUMENT RELATING TO MISUSE OF POWERS ON THE GROUND THAT IN THE COURSE OF THE PROCEEDINGS IT BECAME APPARENT THAT THE APPLICANTS ' TRANSFER WAS NOT DICTATED BY THE REQUIREMENTS OF STAFF ROTATION BUT IN FACT BY A DESIRE TO REDUCE THE NUMBER OF STAFF IN THE ROME OFFICE .

17 THE ARGUMENT BASED ON THE INFRINGEMENT OF THE STAFF REGULATIONS EMBRACES A NUMBER OF COMPLAINTS CONCERNING THE APPLICABILITY TO THE APPLICANTS OF THE DECISION ON ROTATION , THE MODE OF IMPLEMENTING THAT DECISION INASMUCH AS IT PERMITS OFFICIALS TO BE TRANSFERRED WITHOUT THEIR CONSENT , AND CONSIDERATION OF THE APPLICANTS ' PERSONAL CIRCUMSTANCES .

18 ON CONSIDERATION OF THESE SUBMISSIONS AND THE ARGUMENTS OF THE DEFENCE IT APPEARS THAT THE PARTIES ARE IN DISAGREEMENT AS TO THE NATURE OF THE DISPUTED ACTS . THE APPLICANTS ARE OF THE OPINION THAT THEY HAVE BEEN SUBJECT TO A TRANSFER WITHIN THE MEANING OF ARTICLE 7 OF THE STAFF REGULATIONS , WHEREAS , ACCORDING TO THE COMMISSION , THE OPERATION IS TO BE CONSIDERED , CONSISTENTLY WITH CURRENT ADMINISTRATIVE PRACTICE , AS A CHANGE OF ASSIGNMENT AFFECTING BOTH THE POSTS IN QUESTION AND THEIR OCCUPANTS . IN THIS REGARD THE APPLICANTS DRAW ATTENTION TO THE FACT THAT IN ITS DECISION OF 24 NOVEMBER 1976 THE COMMISSION ITSELF DEFINED THE SCHEME AS A PLAN TO ' ' ORGANIZE TRANSFERS OF OFFICIALS BETWEEN THE OFFICES AND HEADQUARTERS AS PART OF THE GENERAL PROGRAMME TO PROMOTE STAFF MOBILITY ' ' .

THE SCOPE OF THE CONCEPTS OF RE-ASSIGNMENT AND TRANSFER UNDER THE STAFF REGULATIONS
19 WITHIN THE GENERAL SCHEME OF THE STAFF REGULATIONS THERE IS A TRANSFER IN THE STRICT SENSE OF THE TERM ONLY WHEN AN OFFICIAL IS TRANSFERRED TO A VACANT POST . IT FOLLOWS THAT ANY TRANSFER , PROPERLY SO-CALLED , IS SUBJECT TO THE FORMALITIES PRESCRIBED BY ARTICLES 4 AND 29 OF THE STAFF REGULATIONS . HOWEVER , THOSE FORMALITIES DO NOT APPLY WHEN AN OFFICIAL IS RE-ASSIGNED WITH HIS POST BECAUSE SUCH A TRANSFER DOES NOT GIVE RISE TO A VACANT POST .

20 AN ANALYSIS OF THE ACTS WHICH COMPRISE THE SUBJECT-MATTER OF THE ACTIONS REVEALS THAT , SINCE THE OFFICIALS ARE BEING TRANSFERRED TOGETHER WITH THEIR POSTS , THE DECISIONS WHICH WERE TAKEN WITH REGARD TO THE APPLICANTS DO NOT GIVE RISE TO A VACANCY AND DO NOT THEREFORE CONSTITUTE TRANSFERS WITHIN THE MEANING OF THE STAFF REGULATIONS . TO THAT EXTENT THE TERMINOLOGY EMPLOYED BY THE APPLICANTS AND , OCCASIONALLY , BY THE COMMISSION ITSELF , IS INAPPROPRIATE .

21 NONE THE LESS , THAT INCORRECT DESCRIPTION DOES NOT IMPAIR THE CONTENT OF THE ARGUMENTS ADVANCED BY THE APPLICANTS . AS RECOGNIZED BY THE COMMISSION ' S OWN CONSISTENT PRACTICE , WHICH IS REFLECTED IN THE DISPUTED ACTS , DECISIONS RE-ASSIGNING OFFICIALS ARE SUBJECT IN THE SAME WAY AS TRANSFERS , AS REGARDS SAFEGUARDING THE RIGHTS AND LEGITIMATE INTERESTS OF THE OFFICIALS CONCERNED , TO THE PROVISIONS OF ARTICLE 7 ( 1 ) OF THE STAFF REGULATIONS , INASMUCH AS OFFICIALS MAY BE RE-ASSIGNED ONLY IN THE INTERESTS OF THE SERVICE AND IN COMPLIANCE WITH THE REQUIREMENT THAT POSTS MUST CORRESPOND TO THE OFFICIALS ' GRADES . THUS , HOWEVER THE DISPUTED ACTS ARE TO BE DESCRIBED , IT IS IN THE LIGHT OF THE PRINCIPLES IN ARTICLE 7 ( 1 ) THAT THE SUBMISSIONS PUT FORWARD BY THE APPLICANTS MUST BE CONSIDERED .

THE FIRST SUBMISSION :
- APPLICABILITY OF THE ROTATION DECISION IN THE APPLICANTS ' CASE
22 THE APPLICANTS ' PRIMARY SUBMISSION IS THAT , HAVING BEEN ASSIGNED TO THEIR POSTS IN THE ROME OFFICE SINCE 1968 , THEY ARE NOT COVERED BY THE DECISION INTRODUCING THE ROTATION SYSTEM WHICH DATES ONLY FROM 24 NOVEMBER 1976 . AT THE VERY LEAST THEY ARE ENTITLED TO PROTECTION OF THE LEGITIMATE EXPECTATION WHICH THEY HAD THAT THEIR POSTING WOULD REMAIN STABLE IN CONFORMITY WITH THE PREVIOUS PRACTICE OF THE COMMISSION .

23 THE APPLICANTS ' ARGUMENT DISREGARDS THE PRINCIPLES OF THE STAFF REGULATIONS CONCERNING THE POSTING OF OFFICIALS AND THE EFFECT IN THAT RESPECT OF THE DECISION INTRODUCING THE ROTATION SYSTEM . THE WAY IN WHICH THE COMMUNITY ' S ADMINISTRATION FUNCTIONS IMPLIES A DUTY ON THE PART OF EVERY EUROPEAN OFFICIAL TO ACCEPT ANY ASSIGNMENT , PROVIDED THAT IT IS CONSISTENT WITH THE CATEGORY AND GRADE OF HIS POST AND IN ACCORDANCE WITH THE REQUIREMENTS OF THE SERVICE , THROUGHOUT THE COMMUNITY IN ANY PLACE OF EMPLOYMENT WITHIN THE INSTITUTION IN WHICH HE TOOK UP HIS DUTIES . CONSTRAINTS OF A PERSONAL AND FAMILY NATURE TO WHICH THOSE CONDITIONS MAY GIVE RISE IN THE OPERATION OF THE SERVICE ARE COMPENSATED FOR BY THE ADVANTAGES AND PRIVILEGES CONFERRED BY THE CONDITIONS OF EMPLOYMENT IN THE EUROPEAN PUBLIC SERVICE .

24 THUS , EVEN BEFORE THE ROTATION DECISION WAS PUT INTO EFFECT EVERY OFFICIAL ASSIGNED TO A POST IN A COMMISSION OFFICE AWAY FROM HEADQUARTERS WAS SUBJECT TO RECALL AT ANY TIME AS REQUIRED BY THE ORGANIZATION OF ITS SERVICES . EVEN THOUGH AT THE TIME IN QUESTION THE COMMISSION HAD NOT ALTERED THE APPLICANTS ' POSTING , OR INDEED THAT OF OTHER OFFICIALS WHO WERE IN A SIMILAR SITUATION , FOR A CONSIDERABLE PERIOD THAT FACT DOES NOT CONFER ON THOSE CONCERNED ANY RIGHT TO THE INDEFINITE CONTINUANCE OF THAT SITUATION .

25 IN THE CIRCUMSTANCES THE DECISION OF 24 NOVEMBER 1976 CANNOT BE SAID TO HAVE INTRODUCED ANY NEW RULES OF SUBSTANCE CONCERNING THE ASSIGNMENT OF OFFICIALS TO EXTERNAL OFFICES , ITS EFFECT BEING TO REPLACE A SYSTEM OF AD HOC DECISIONS BY A REGULATED SYSTEM OF TRANSFERS MORE IN KEEPING WITH THE REQUIREMENTS OF JUSTICE AND FORESEEABILITY FOR THE OFFICIALS CONCERNED . IN THE CIRCUMSTANCES IT WAS TO BE EXPECTED THAT THIS SCHEME WOULD BE APPLIED IN THE FIRST PLACE TO THE OFFICIALS WHO HAD WORKED FOR A CONSIDERABLE TIME IN THE EXTERNAL OFFICES AND THERE CAN BE NO QUESTION OF RETROACTIVE EFFECT WHEN A DECISION TO RECALL THEM MIGHT HAVE OCCURRED PREVIOUSLY UNDER THE GENERAL PRINCIPLES OF THE STAFF REGULATIONS .

26 THIS COMPLAINT MUST THEREFORE BE REJECTED .

- OBJECTIONS AS TO THE MANNER OF IMPLEMENTING THE ROTATION DECISION
27 THE APPLICANTS EMPHASIZE THAT THEIR INTENTION IS NOT TO CONTEST THE ROTATION SYSTEM ITSELF ; IN THEIR OPINION THE SYSTEM IS LAWFUL UNDER COMMUNITY LAW ' ' WHEN PROPERLY APPLIED ' ' . HOWEVER , THEY EXPRESS CRITICISM OF ITS APPLICATION IN SO FAR AS IT ALLOWS RE-ASSIGNMENT EVEN AGAINST THE WISHES OF OFFICIALS . ON THIS POINT THEIR ARGUMENT IS THAT IN PRINCIPLE ' ' TRANSFERS ' ' OF OFFICIALS MAY ONLY TAKE PLACE WITH THEIR CONSENT , COMPULSORY TRANSFERS BEING PERMITTED ONLY IN SPECIAL CASES .

28 THERE IS NO SUPPORT FOR THE APPLICANTS ' THEORY ON THIS POINT IN THE STAFF REGULATIONS . IT HAS BEEN CONSISTENTLY HELD THAT THE COMMUNITY INSTITUTIONS ARE AT LIBERTY TO ORGANIZE THEIR OFFICES TO SUIT THE TASKS ENTRUSTED TO THEM AND TO ASSIGN THE STAFF AVAILABLE TO THEM IN THE LIGHT OF SUCH TASKS ( SEE THE JUDGMENTS OF 11 JULY 1968 IN CASE 16/67 LABEYRIE ( 1968 ) ECR 293 ; 16 JUNE 1971 IN CASE 61/70 VISTOSI ( 1971 ) ECR 535 ; 14 JULY 1977 IN CASE 61/76 GEIST ( 1977 ) ECR 1419 ). THE APPLICANTS ' ARGUMENT THAT A RE-ASSIGNMENT CANNOT NORMALLY OCCUR WITHOUT THE AGREEMENT OF THE OFFICIAL CONCERNED WOULD HAVE THE EFFECT OF IMPOSING AN INTOLERABLE RESTRICTION ON THE INSTITUTIONS ' DISCRETION IN ORGANIZING THEIR SERVICES AND IN ADAPTING THAT ORGANIZATION TO CHANGING REQUIREMENTS .

29 IN DOING SO THE INSTITUTIONS MUST OBSERVE THE GUARANTEES EMBODIED IN THE STAFF REGULATIONS AND IN PARTICULAR THE RULE IN ARTICLE 7 OF THE STAFF REGULATIONS WHICH PROVIDES EVERY OFFICIAL WITH THE ASSURANCE OF BEING GIVEN A POST SUITED TO HIS CATEGORY AND GRADE WHATEVER THE CIRCUMSTANCES .

30 NO CRITICISM CAN BE MADE OF THE PRINCIPLES OF THE ROTATION DECISION WITH REGARD TO THOSE REQUIREMENTS . AS HAS ALREADY BEEN STATED IN THE ABOVE-MENTIONED ORDER OF 31 JULY 1980 THE ROTATION SYSTEM IS INTENDED TO ACHIEVE A NUMBER OF OBJECTIVES SUCH AS THE MOBILITY OF DEPARTMENTS , DIVERSIFICATION AND OPTIMUM USE OF OFFICIALS ' EXPERIENCE , CLOSER TIES BETWEEN THE CENTRAL ADMINISTRATION AND ITS EXTERNAL OFFICES AND THE SECURING OF BALANCED CAREERS FOR THE OFFICIALS CONCERNED . ACCORDINGLY , THE COMMISSION DID NOT EXCEED ITS POWERS OF ORGANIZATION AND MANAGEMENT IN DECIDING TO TRANSFER THE APPLICANTS UNDER THE SYSTEM ESTABLISHED BY THE ROTATION DECISION .

31 THE COURT MUST THEREFORE REJECT THE OBJECTIONS RAISED BY THE APPLICANTS TO THE ACTUAL PRINCIPLE OF THE DECISION OF 24 NOVEMBER 1976 INASMUCH AS IT LAYS DOWN A SCHEME FOR CHANGES OF ASSIGNMENT BETWEEN THE CENTRAL ADMINISTRATION AND THE VARIOUS EXTERNAL OFFICES EVEN AGAINST THE WISHES OF THOSE CONCERNED .

- CONSIDERATION OF THE APPLICANTS ' PERSONAL CIRCUMSTANCES
32 IN THIS REGARD THE APPLICANTS ASSERT , FIRST , THAT EVEN IF IT COULD BE CONCEDED THAT THE ROTATION SYSTEM IS JUSTIFIED IN THE CASE OF HIGH-RANKING OFFICIALS IT IS NOT APPLICABLE TO OFFICIALS IN THEIR CATEGORY , WHOSE DUTIES ARE PURELY CLERICAL . MOREOVER , THEY CONSIDER THAT THE COMMISSION DID NOT TAKE INTO ACCOUNT , AS IT SHOULD HAVE DONE , THEIR PERSONAL CIRCUMSTANCES AND THE GRAVE ADVERSE EFFECTS WHICH THEIR TRANSFER FROM ROME TO BRUSSELS WOULD HAVE ON THEM .

33 IN THE FIRST PLACE , AS REGARDS THE APPLICATION OF THE DECISION OF 24 NOVEMBER 1976 TO SECRETARIAL STAFF , THE COMMISSION CANNOT BE REPROACHED FOR HAVING INCLUDED IN PRINCIPLE OFFICIALS IN THAT CATEGORY IN THE TRANSFERS . SUCH STAFF PARTICIPATE , AT THEIR OWN LEVEL , IN THE TASKS OF PROVIDING INFORMATION , CONTACTS AND REPRESENTATION WHICH ARE ENTRUSTED TO THE INFORMATION OFFICES ESTABLISHED IN THE VARIOUS MEMBER STATES . IN THE CIRCUMSTANCES THERE IS NO GROUND FOR CRITICIZING THE INCLUSION OF SUCH STAFF IN EXCHANGES BETWEEN HEADQUARTERS AND THE VARIOUS EXTERNAL OFFICES IN ORDER TO PROMOTE CLOSER CONTACT BETWEEN THE COMMISSION ' S ADMINISTRATION AND ITS EXTERNAL SERVICES .

34 IT WOULD IN ANY CASE BE CONTRARY TO THE SPIRIT OF THE STAFF REGULATIONS , WHICH ARE THE SAME FOR ALL THOSE GOVERNED BY THEM , TO INTRODUCE DIFFERENT TREATMENT FOR EACH CATEGORY REGARDING THE GEOGRAPHICAL ASSIGNMENT OF OFFICIALS . ONLY LOCAL STAFF , WHO ARE RECRUITED UNDER CONTRACT IN A PARTICULAR PLACE , ARE ENTITLED TO OBJECT TO A CHANGE IN THEIR PLACE OF EMPLOYMENT BECAUSE FOR THEM THE CONTINUITY OF THEIR PLACE OF WORK IS PART OF THEIR ACTUAL CONDITIONS OF EMPLOYMENT ; THAT CONTINUITY IS , MOREOVER , BALANCED BY THE FACT THAT SUCH STAFF DO NOT ENJOY THE BENEFITS CONFERRED ON OFFICIALS UNDER THE STAFF REGULATIONS .

35 IT SHOULD BE NOTED THAT WHILST IN PRINCIPLE THE DECISION OF 24 NOVEMBER 1976 INCLUDES OFFICIALS IN CATEGORIES B AND C IN THE ROTATION SYSTEM , IT GRANTS THEM THE BENEFIT OF MORE FLEXIBLE IMPLEMENTING RULES WHICH ALLOW CONSIDERATION TO BE GIVEN IN APPROPRIATE CIRCUMSTANCES TO DIFFICULTIES RELATING TO THE NEEDS OF THE SERVICE OR TO PROBLEMS OF A PERSONAL NATURE WHICH MAY ARISE . IT IS NOT CONTESTED THAT IN VIEW OF THAT PROVISION THE APPLICANTS WERE GIVEN THE OPPORTUNITY OF EXPLAINING THEIR DIFFICULTIES TO THE ADMINISTRATION AND THAT THEIR CASES WERE CONSIDERED TOGETHER WITH THOSE OF ALL THE OTHER OFFICIALS WHO OBJECTED TO BEING TRANSFERRED . HOWEVER , THE ADMINISTRATION DID NOT CONSIDER THE DIFFICULTIES EXPRESSED BY THE APPLICANTS SUFFICIENTLY GRAVE TO TAKE PRECEDENCE OVER THE REQUIREMENTS OF THE SERVICE .

36 IT SHOULD BE BORNE IN MIND HERE THAT BOTH THE APPLICANTS WERE RECRUITED ORIGINALLY AT THE INSTITUTION ' S HEADQUARTERS , THE FIRST TO WORK FOR THE HIGH AUTHORITY IN LUXEMBOURG AND THE SECOND TO WORK FOR THE COMMISSION OF THE EC IN BRUSSELS , AND THAT THEY WERE ORIGINALLY ASSIGNED TO SECRETARIAL DUTIES IN THE CENTRAL ADMINISTRATION OF THOSE TWO INSTITUTIONS . THEY WERE TRANSFERRED TO THE DIRECTORATE-GENERAL FOR INFORMATION AND ASSIGNED TO THE ROME OFFICE IN 1968 AS PART OF THE ADMINISTRATIVE REORGANIZATION WHICH FOLLOWED THE MERGER OF THE EUROPEAN EXECUTIVES . THEIR ASSIGNMENT TO ROME CONTINUED FOR A LENGTHY PERIOD WHICH FAR EXCEEDED THAT CONSIDERED IN THE ROTATION DECISION TO BE A NORMAL PERIOD HAVING REGARD TO THE REQUIREMENTS OF THE SERVICE .

37 AGAINST THEIR TRANSFER BOTH APPLICANTS HAVE RAISED OBJECTIONS OF A PERSONAL AND FAMILY NATURE , TO WHICH IS ADDED , FOR THE SECOND APPLICANT , A DIFFICULTY REGARDING THE EDUCATION OF HER CHILD .

THE NATURE OF THOSE OBJECTIONS IS SUCH THAT , EVEN LEAVING ASIDE ANY QUESTION OF PRINCIPLE , THE ADMINSTRATION CANNOT BE CRITICIZED FOR HAVING ALLOWED THE INTERESTS OF THE SERVICE TO OVERRIDE THEM . AS REGARDS IN PARTICULAR THE EDUCATIONAL PROBLEMS IT SHOULD BE POINTED OUT THAT OWING TO THE ARRANGEMENTS MADE BY THE INSTITUTIONS AND THE GOVERNMENTS OF THE MEMBER STATES , THEIR SOLUTION SHOULD NOT RAISE ANY INSUPERABLE PROBLEMS FOR THE FAMILIES OF EUROPEAN OFFICIALS .

38 THEREFORE THE OBJECTIONS PLEADED BY THE APPLICANTS BASED ON THEIR BELONGING TO CATEGORY C AND ON THE EXISTENCE OF PERSONAL DIFFICULTIES MUST ALSO BE REJECTED .

THE SECOND SUBMISSION : INADEQUACY OF THE STATEMENT OF REASONS
39 RELYING ON THE SECOND PARAGRAPH IN ARTICLE 25 OF THE STAFF REGULATIONS , THE APPLICANTS FURTHER CLAIM THAT THE DECISIONS TO TRANSFER THEM LACKED ANY STATEMENT OF THE REASONS ON WHICH THEY WERE BASED .

40 IN THIS REGARD IT SHOULD BE NOTED THAT IN THE LETTERS SENT TO THE APPLICANTS ON 17 DECEMBER 1979 THE ADMINISTRATION EXPRESSLY REFERRED TO THE ROTATION DECISION . THE ATTENTION OF THE APPLICANTS WAS THEREFORE DRAWN BOTH TO THE STATEMENT OF REASONS ON WHICH THAT MEASURE WAS BASED , WHICH ARE SUMMARIZED ABOVE , AND TO THE OPPORTUNITY FOR THEM TO PRESENT ANY OBJECTIONS THEY MIGHT HAVE . IN VIEW OF THE CIRCUMSTANCES IN WHICH THE DISPUTED DECISIONS WERE MADE AND OF WHICH THE APPLICANTS WERE WELL AWARE THERE WAS NO NEED FOR THOSE DECISIONS TO CONTAIN SPECIFIC STATEMENTS OF REASONS .

41 THAT SUBMISSION MUST ACCORDINGLY BE REJECTED .

THE THIRD SUBMISSION : MISUSE OF POWERS
42 IN THEIR REPLY , AND MORE EXPLICITLY IN THE ORAL PROCEDURE , THE APPLICANTS ALLEGED MISUSE OF POWERS BY THE COMMISSION , BASED ON THE CLAIM THAT IN THE COURSE OF THE PROCEDURE IT HAD BECOME APPARENT THAT THEIR TRANSFER , ORIGINALLY PRESENTED AS AN EXCHANGE OF OFFICIALS BETWEEN THE CENTRAL ADMINISTRATION AND THE ROME OFFICE , WAS IN REALITY DESIGNED TO REDUCE THE NUMBER OF STAFF IN THAT OFFICE . THEY MAINTAIN THAT IT HAS IN FACT BECOME CLEAR IN THE MEANTIME THAT THEY WILL NOT BE REPLACED THERE .

43 THE COMMISSION HAS NOT DENIED THAT THAT IS IN FACT THE ULTIMATE AIM OF ITS ACTION ; THE FIGURES GIVEN BY IT IN THE COURSE OF THE PROCEEDINGS SHOW IN FACT THAT COMPARED WITH SIMILAR OFFICES ESTABLISHED IN OTHER MEMBER STATES THE ROME OFFICE IS OVER-STAFFED AT THE SECRETARIAL LEVEL , MAKING IT NECESSARY TO REDUCE THE NUMBERS TO MORE APPROPRIATE PROPORTIONS .

44 IN THIS REGARD IT MUST BE APPRECIATED THAT THE WAY IN WHICH THE DECISION OF 24 NOVEMBER 1976 ARRANGED FOR THE ROTATION SYSTEM TO BE PUT INTO EFFECT IN NO WAY PRECLUDES THE COMMISSION , WHEN STAFF ARE BEING TRANSFERRED , FROM MAKING ADJUSTMENTS OF STAFF LEVELS BETWEEN THE CENTRAL ADMINISTRATION AND THE VARIOUS EXTERNAL OFFICES . HAVING BEEN TRANSFERRED WITH THEIR POSTS TO THE CENTRAL ADMINISTRATION , THE APPLICANTS HAVE NO GROUND TO CRITICIZE THE MEASURES ADOPTED ON THEIR DEPARTURE IN RELATION TO THE OFFICE TO WHICH THEY HAD PREVIOUSLY BEEN ASSIGNED .

45 CONSIDERATION OF ALL THE SUBMISSIONS LEADS TO THE CONCLUSION THAT THE APPLICATION MUST BE DISMISSED .


46 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

47 HOWEVER , ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT , IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .


ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATIONS ;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .

  
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