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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Charles Lux v Court of Auditors of the European Communities. [1984] EUECJ C-69/83 (21 June 1984)
URL: http://www.bailii.org/eu/cases/EUECJ/1984/C6983.html
Cite as: [1984] EUECJ C-69/83
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61983J0069
Judgment of the Court (Second Chamber) of 21 June 1984.
Charles Lux v Court of Auditors of the European Communities.
Official - New posting - Interests of the service - Misuse of powers.
Case 69/83.
European Court reports 1984 Page 02447

 
   








1 . OFFICIALS - ORGANIZATION OF DEPARTMENTS - ASSIGNMENT OF STAFF - DISCRETION VESTED IN THE ADMINISTRATION - LIMITS - INTERESTS OF THE SERVICE - COMPLIANCE WITH THE PRINCIPLE OF ASSIGNMENT TO AN EQUIVALENT POST
2 . OFFICIALS - ACTION - SUBMISSIONS - MISUSE OF POWERS - CONCEPT
3 . OFFICIALS - DECISION ADVERSELY AFFECTING AN OFFICIAL - DUTY TO STATE THE REASONS ON WHICH THE DECISION IS BASED - PURPOSE - SCOPE
( STAFF REGULATIONS OF OFFICIALS , ART . 25 )


1 . THE COMMUNITY INSTITUTIONS HAVE A BROAD DISCRETION TO ORGANIZE 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 IS ASSIGNED IN THE INTERESTS OF THE SERVICE AND IN CONFORMITY WITH THE PRINCIPLE OF ASSIGNMENT TO AN EQUIVALENT POST .


2.A DECISION MAY AMOUNT TO A MISUSE OF POWERS ONLY IF IT APPEARS , ON THE BASIS OF OBJECTIVE , RELEVANT AND CONSISTENT EVIDENCE , TO HAVE BEEN TAKEN FOR PURPOSES OTHER THAN THOSE STATED .


3.SINCE THE PURPOSE OF THE DUTY TO STATE THE REASONS ON WHICH A DECISION IS BASED IS BOTH TO PERMIT THE PERSON CONCERNED TO DETERMINE WHETHER THE DECISION IS DEFECTIVE , MAKING IT POSSIBLE FOR LEGALITY TO BE CHALLENGED , AND TO ENABLE IT TO BE REVIEWED BY THE COURT , IT FOLLOWS THAT THE EXTENT OF THAT DUTY MUST BE DETERMINED ON THE BASIS OF THE PARTICULAR FACTS OF EACH CASE .


IN CASE 69/83
CHARLES LUX , AN OFFICIAL IN GRADE A 5 AT THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , REPRESENTED BY EDMOND LEBRUN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE APPLICANT ' S APARTMENT , 17 , RUE BERTHOLET ,
APPLICANT ,
V
COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , REPRESENTED BY FRANCESCO DE FILIPPIS , ACTING AS AGENT , ASSISTED BY LUCETTE DEFALQUE , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS SEAT , 29 , RUE ALDRINGEN ,
DEFENDANT ,


APPLICATION FOR ANNULMENT OF THE DECISION OF THE COURT OF AUDITORS OF 24 MARCH 1983 CHANGING THE ALLOCATION OF POSTS AS BETWEEN THE PRESIDENT ' S SECTOR AND THE STAFF AND OPERATIONAL EXPENDITURE SECTOR AND ALSO THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS OF 14 APRIL 1983 CHANGING THE APPLICANT ' S POSTING AND ASSIGNING HIM TO THE STAFF AND OPERATIONAL EXPENDITURE SECTOR ,


1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 28 APRIL 1983 , MR CHARLES LUX , AN OFFICIAL IN GRADE A 5 AT THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE COURT OF AUDITORS DATED 24 MARCH 1983 CHANGING THE ALLOCATION OF POSTS AS BETWEEN THE PRESIDENT ' S SECTOR AND THE STAFF AND OPERATIONAL EXPENDITURE SECTOR AND TRANSFERRING A POST OF PRINCIPAL LEGAL ADMINISTRATOR FROM THE PRESIDENT ' S SECTOR TO THE STAFF AND OPERATIONAL EXPENDITURE SECTOR AND ALSO THE DECISION OF THE PRESIDENT OF THE COURT OF AUDITORS DATED 14 APRIL 1983 CHANGING THE APPLICANT ' S POSTING AND ASSIGNING HIM TO THE STAFF AND OPERATIONAL EXPENDITURE SECTOR OF THE COURT OF AUDITORS .

2 BY A SEPARATE APPLICATION , WHICH WAS LODGED ON THE SAME DATE , THE APPLICANT SOUGHT AN INTERIM MEASURE SUSPENDING THE OPERATION OF THOSE DECISIONS .

3 ON 20 MAY 1983 THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT MADE AN ORDER DISMISSING THE APPLICATION FOR THE SUSPENSION OF THE OPERATION OF THE CONTESTED DECISIONS .

4 IT APPEARS FROM THE FILE ON THE CASE THAT , AFTER PERFORMING THE DUTIES OF ADMINISTRATOR IN THE LEGAL DEPARTMENT OF THE COMMISSION FROM 25 JUNE 1973 TO 1 AUGUST 1978 , THE APPLICANT WAS APPOINTED TO A POST OF ADMINISTRATOR AT THE COURT OF AUDITORS . IN THAT POST HE WAS OBLIGED INITIALLY TO PERFORM BOTH ADMINISTRATIVE AND AUDITING DUTIES . SUBSEQUENTLY , WITH EFFECT FROM 20 JANUARY 1980 , HE WAS APPOINTED AS AN ADMINISTRATOR IN THE LEGAL DEPARTMENT , WHICH WAS TRANSFERRED ON 15 JANUARY 1981 TO THE PRESIDENT ' S SECTOR , OF WHICH IT STILL FORMS PART .

5 THE APPLICANT HELD THAT POST UNTIL THE ADOPTION OF THE CONTESTED DECISION OF 14 APRIL 1983 ASSIGNING HIM TO THE STAFF AND OPERATIONAL EXPENDITURE SECTOR , WHICH IS AN AUDITING SECTOR .

6 IN SUPPORT OF HIS APPLICATION , THE APPLICANT PUTS FORWARD FIVE SUBMISSIONS : LACK OF POWER OF THE COURT OF AUDITORS TO ADOPT THE DECISION OF 24 MARCH 1983 ; INADEQUATE STATEMENT OF THE REASONS ON WHICH THE DECISION WAS BASED ; INFRINGEMENT OF THE GUARANTEES PROVIDED FOR BY ARTICLES 4 , 7 AND 29 OF THE STAFF REGULATIONS OF OFFICIALS INASMUCH AS THE COURT OF AUDITORS MAY NOT REASSIGN AN OFFICIAL WHERE THE REASSIGNMENT INVOLVES A SUBSTANTIAL CHANGE IN HIS DUTIES , AS IN THE PRESENT CASE ; DISREGARD OF THE INTERESTS OF THE SERVICE , CONTRARY TO ARTICLE 7 OF THE STAFF REGULATIONS ; AND , FINALLY , MISUSE OF POWERS .

7 IT IS CLEAR FROM THE DOCUMENTS RELATING TO THE CASE AND FROM THE VIEWS EXPRESSED AT THE HEARING THAT THE PARTIES WERE ESSENTIALLY DIVIDED ON TWO ISSUES , NAMELY WHETHER THE DEFENDANT WAS EMPOWERED TO ADOPT THE CONTESTED DECISIONS AND WHETHER , IN ADOPTING THOSE DECISIONS , IT OBSERVED THE RIGHTS AND GUARANTEES CONFERRED ON OFFICIALS BY THE STAFF REGULATIONS AND THE CASE-LAW OF THE COURT .

DIVISION OF POWERS WITHIN THE COURT OF AUDITORS
8 THE APPLICANT CONTENDS THAT , SINCE THE POST IN QUESTION IS HELD BY AN OFFICIAL , THE POWER TO CHANGE THE ALLOCATION OF POSTS AS BETWEEN SECTORS IS VESTED NOT IN THE COURT OF AUDITORS AS A COLLEGIATE BODY BUT IN THE PRESIDENT OF THE COURT OF AUDITORS ACTING IN HIS CAPACITY AS APPOINTING AUTHORITY .

9 THE DEFENDANT , REFERRING TO THE DISTINCTIVE NATURE OF ITS INTERNAL ORGANIZATION , EXPLAINS THAT , FOLLOWING A REQUEST FROM ONE OF ITS MEMBERS FOR AN ADDITIONAL LAWYER TO JOIN HIS SECTOR , IT WAS NECESSARY , UNDER THE RULES OF PROCEDURE OF THE COURT OF AUDITORS , FIRST FOR THE POST PROVIDED FOR IN THE BUDGET TO BE TRANSFERRED BY THE COURT ACTING AS A COLLEGIATE BODY AND , SECONDLY , FOR THE APPLICANT TO BE ASSIGNED TO THAT POST BY THE APPOINTING AUTHORITY . CONSEQUENTLY , THE COURT OF AUDITORS , AS A COLLEGIATE BODY , DID NOT LACK THE POWER TO ADOPT THE FIRST DECISION , SINCE IT WAS ONLY THE SECOND DECISION WHICH HAD TO BE ADOPTED BY THE APPOINTING AUTHORITY .

10 THE PARTIES ARE AGREED THAT WHAT IN FACT TOOK PLACE WAS A TRANSFER OF THE APPLICANT TOGETHER WITH HIS POST FROM THE PRESIDENT ' S SECTOR TO THE STAFF AND OPERATIONAL EXPENDITURE SECTOR . HOWEVER , EVEN THOUGH THAT TRANSFER MAY BE VIEWED AS AN INDIVIDUAL DECISION , THE APPLICANT ' S ARGUMENTS CANNOT BE ACCEPTED .

11 IN HIS ARGUMENTS THE APPLICANT FAILS TO TAKE ACCOUNT OF THE DISTINCTIVE NATURE OF THE COURT OF AUDITORS AND , IN PARTICULAR , THE FACT THAT IT FUNCTIONS ON A COLLEGIATE BASIS , AS IS REFLECTED IN ARTICLE 13 OF ITS RULES OF PROCEDURE , WHICH PROVIDES AS FOLLOWS :
' ' ARTICLE 13 : ORGANIZATION OF DEPARTMENTS
THE COURT SHALL DETERMINE THE STRUCTURE OF ITS DEPARTMENTS . IT SHALL ALLOCATE THE POSTS AMONG THE SECTORS . ' '
THE COURT OF AUDITORS HAS ALSO STATED , ACCORDING TO THE MINUTES OF THE MEETING HELD ON 21 JANUARY 1982 , THAT AS REGARDS THE ALLOCATION OF POSTS PROVIDED FOR IN THE BUDGET IT ' ' HAS DECIDED NOT TO DEROGATE IN ANY WAY FROM ARTICLE 13 OF ITS RULES OF PROCEDURE , ACCORDING TO WHICH IT SHALL ITSELF ALLOCATE THE POSTS PROVIDED FOR IN THE BUDGET AMONG THE SECTORS ' ' .

12 THERE IS NO DOUBT THEREFORE THAT THE TRANSFER WAS CARRIED OUT IN ACCORDANCE WITH THE RULES OF PROCEDURE OF THE COURT OF AUDITORS , SINCE FIRST THE COURT ADOPTED THE DECISION TO TRANSFER A POST FROM THE PRESIDENT ' S SECTOR TO THE STAFF AND OPERATIONAL EXPENDITURE SECTOR AND , SUBSEQUENTLY , THE PRESIDENT , ACTING IN HIS CAPACITY AS APPOINTING AUTHORITY , APPOINTED THE APPLICANT TO THAT POST .

13 ACCORDINGLY , THE SUBMISSION TO THE EFFECT THAT THE COURT OF AUDITORS WAS NOT EMPOWERED TO ADOPT THE DECISION OF 24 MARCH 1983 MUST BE REJECTED .

OBSERVANCE OF THE GUARANTEES GIVEN TO OFFICIALS
14 BEFORE ALL THE OBJECTIONS RAISED BY THE APPLICANT IN THIS CONNECTION ARE CONSIDERED , IT SHOULD BE POINTED OUT THAT , SINCE THE CONTESTED DECISIONS INVOLVE THE REASSIGNMENT OF AN OFFICIAL , THEY ARE NOT SUBJECT TO THE FORMALITIES LAID DOWN BY ARTICLES 4 AND 29 OF THE STAFF REGULATIONS .

15 THUS , THE ARGUMENTS PUT FORWARD BY THE APPLICANT ARE IN SUBSTANCE THAT THE DECISION OF 24 MARCH 1983 DID NOT STATE THE REASONS ON WHICH IT WAS BASED , THAT THE REASSIGNMENT OF THE APPLICANT WAS CONTRARY TO ARTICLE 7 ( 1 ) OF THE STAFF REGULATIONS SINCE HE WAS TRANSFERRED FROM AN ADMINISTRATIVE SECTOR TO AN AUDITING SECTOR IN DISREGARD OF THE INTERESTS OF THE SERVICE AND OF THE PRINCIPLE OF ASSIGNMENT TO AN EQUIVALENT POST AND , FINALLY , THAT THE DECISION CONSTITUTES A MISUSE OF POWERS .

16 SINCE THE PURPOSE OF THE DUTY TO STATE THE REASONS ON WHICH A DECISION IS BASED IS , INTER ALIA , TO PROVIDE THE PARTY CONCERNED WITH THE NECESSARY INFORMATION TO ENABLE HIM TO ASCERTAIN WHETHER OR NOT THE DECISION IS WELL FOUNDED , IT IS APPROPRIATE TO BEGIN BY EXAMINING THE TWO CONTESTED DECISIONS IN ORDER TO DETERMINE WHETHER THEY ARE WELL FOUNDED .

17 AS A PRELIMINARY REMARK , IT MUST BE POINTED OUT THAT THE COURT HAS HELD THAT THE COMMUNITY INSTITUTIONS HAVE A BROAD DISCRETION TO ORGANIZE 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 INTERESTS OF THE SERVICE AND IN CONFORMITY WITH THE PRINCIPLE OF ASSIGNMENT TO AN EQUIVALENT POST .

18 THE APPLICANT ' S SUBMISSIONS MUST THEREFORE BE CONSIDERED IN THE LIGHT OF THESE PRINCIPLES .

INTERESTS OF THE SERVICE
19 ACCORDING TO THE APPLICANT , THE INTERESTS OF THE SERVICE DEMAND THAT HE SHOULD NOT BE MOVED FROM THE LEGAL DEPARTMENT AT A TIME WHEN THE WORKLOAD OF THAT DEPARTMENT IS PARTICULARLY HEAVY AND THE STAFF AND OPERATIONAL EXPENDITURE SECTOR DOES NOT REQUIRE AN ADDITIONAL LAWYER ; THAT IS PARTICULARLY TRUE SINCE HE PERSONALLY LACKS THE NECESSARY QUALIFICATIONS FOR ASSIGNMENT TO AN AUDITING SECTOR .

20 THAT ARGUMENT CANNOT BE ACCEPTED . NOT ONLY DOES THE COURT OF AUDITORS HAVE COMPLETE DISCRETION WITH REGARD TO THE POSTING OF THE STAFF AT ITS DISPOSAL , BUT IT IS ALSO CLEAR FROM THE FILE ON THE CASE AND , IN PARTICULAR , FROM THE STATEMENTS MADE AT THE HEARING THAT IT WAS THE MEMBER RESPONSIBLE FOR THE STAFF AND OPERATIONAL EXPENDITURE SECTOR WHO REQUESTED THE ALLOCATION OF A POST OF LAWYER TO THAT SECTOR . IT IS ALSO CLEAR FROM THE FILE THAT IN THE PERIOD BETWEEN THE DATE ON WHICH HE ENTERED THE SERVICE OF THE COURT OF AUDITORS AT THE END OF 1978 AND 20 JANUARY 1980 , WHEN HE WAS APPOINTED TO A POST IN THE LEGAL DEPARTMENT , THE APPLICANT HAD ALREADY BEEN ASSIGNED TO THE SAME AUDITING SECTOR AS THAT TO WHICH HE HAS NOW BEEN REASSIGNED .

21 FURTHERMORE , REFERENCE MUST ALSO BE MADE TO THE DISTINCTIVE NATURE OF THE COURT OF AUDITORS . IN ORDER TO CARRY OUT ITS AUDITS THE COURT OF AUDITORS HAS DECIDED TO ADOPT A SYSTEM-BASED APPROACH , WHICH CONSISTS IN EVALUATING SYSTEMS RATHER THAN THEIR EFFECTS AND INVOLVES AN ANALYSIS NOT ONLY OF INTERNAL CONTROLS BUT ALSO OF THE BUDGETARY PROCEDURES TO WHICH THEY RELATE . CONSEQUENTLY , THE AUDIT WHICH IT CARRIES OUT RELATES TO BOTH THE REGULARITY AND THE LEGALITY OF THE FINANCIAL MANAGEMENT OF THE INSTITUTIONS .

22 IT FOLLOWS THAT THE WORK OF THE COURT OF AUDITORS DEMANDS THE PERMANENT PRESENCE OF STAFF COMPETENT IN BOTH LEGAL AND AUDITING MATTERS . THEREFORE THE APPLICANT ' S CONTENTION THAT IT WOULD HAVE BEEN IN THE INTERESTS OF THE SERVICE TO RECRUIT AN AUDITOR AND NOT A LAWYER FOR THE STAFF AND OPERATIONAL EXPENDITURE SECTOR IS INCORRECT .

23 FURTHERMORE , WHEN HE APPLIED FOR THE POST ADVERTISED IN VACANCY NOTICE NO CC/A/22/79 , THE APPLICANT REFERRED TO HIS EXPERIENCE IN AUDITING STAFF EXPENDITURE HAVING REGARD TO THE LEGALITY AND THE REGULARITY THEREOF . IN THOSE CIRCUMSTANCES , ALTHOUGH HIS APPLICATION FOR THAT POST WAS UNSUCCESSFUL , THERE IS NO JUSTIFICATION NOW FOR THE APPLICANT ' S CLAIM THAT HE LACKS THE QUALIFICATIONS NECESSARY TO PERFORM THE DUTIES OF PRINCIPAL ADMINISTRATOR IN THE STAFF AND OPERATIONAL EXPENDITURE SECTOR , WHICH IS AN AUDITING SECTOR .

ASSIGNMENT TO AN EQUIVALENT POST
24 THE APPLICANT ALSO MAINTAINS THAT THE PRINCIPLE OF ASSIGNMENT TO AN EQUIVALENT POST HAS BEEN CONTRAVENED INASMUCH AS , EITHER THE APPLICANT CONTINUES TO PERFORM DUTIES WHICH ARE ESSENTIALLY OF A LEGAL NATURE , IN WHICH CASE THEY ARE LACKING IN SUBSTANCE , OR ELSE HE IS ENTRUSTED WITH AUDITING TASKS , IN WHICH CASE THERE IS A SUBSTANTIAL CHANGE IN HIS DUTIES AND HIS REASSIGNMENT IN UNLAWFUL .

25 IN THAT REGARD , IT IS APPROPRIATE TO REFER IN THE FIRST PLACE TO THE REMARKS MADE EARLIER CONCERNING THE DISTINCTIVE ORGANIZATION OF THE COURT OF AUDITORS , WHICH ENTAILS THE REJECTION OF THE DISTINCTION BETWEEN LEGAL DUTIES AND AUDITING DUTIES , AND THE FACT THAT THE APPLICANT HAD ALREADY WORKED IN THE SAME AUDITING SECTOR IN THE PAST .

26 MOREOVER , IT IS CLEAR FROM THE FILE ON THE CASE AND IN PARTICULAR FROM THE STATEMENTS MADE AT THE HEARING THAT THE TASKS ASSIGNED TO MR LUX ARE BY NO MEANS INSIGNIFICANT AND THAT , ON THE CONTRARY , IT WAS THE APPLICANT WHO INITIALLY FAILED TO SHOW IN HIS WORK THE WILLINGNESS AND ENTHUSIASM WHICH AN INSTITUTION IS ENTITLED TO EXPECT FROM A RESPONSIBLE OFFICIAL .

27 THEREFORE , IN THE LIGHT OF THE FOREGOING CONSIDERATIONS , THE APPLICANT ' S THIRD AND FOURTH SUBMISSIONS MUST BE REJECTED .

MISUSE OF POWERS
28 IN SUPPORT OF THIS SUBMISSION , THE APPLICANT MAINTAINS THAT THE CONTESTED DECISIONS CONSTITUTE A DISGUISED DISCIPLINARY MEASURE INASMUCH AS IN 1982 THE PRESIDENT OF THE COURT OF AUDITORS ALLEGEDLY MADE IT CLEAR TO HIM THAT HE MIGHT BE TRANSFERRED TO ANOTHER DEPARTMENT UNLESS HE WITHDREW TWO ACTIONS WHICH HE HAD BROUGHT BEFORE THE COURT OF JUSTICE . THAT INTENTION WAS CONFIRMED BY THE RECRUITMENT OF A TEMPORARY SERVANT WHO , ACCORDING TO THE APPLICANT , WAS TO TAKE HIS PLACE IN THE LEGAL DEPARTMENT AND BY THE FACT THAT THE PRESIDENT HAD CRITICIZED HIM IN CONNECTION WITH TWO MEMORANDA CONCERNING A RECOMMENDATION TO ' ' PROCEED WITH THE MATTER IN ANY EVENT ' ' .

29 BEFORE THIS SUBMISSION IS CONSIDERED , IT SHOULD BE POINTED OUT THAT THE APPLICANT ' S LAST-MENTIONED ARGUMENT MUST BE REJECTED SINCE IT IS CLEAR FROM THE STATEMENTS MADE AT THE HEARING THAT THE CRITICISMS IN QUESTION REFERRED NOT TO THE TWO MEMORANDA CONCERNING THE RECOMMENDATION TO ' ' PROCEED WITH THE MATTER IN ANY EVENT ' ' , BUT TO CERTAIN MEMORANDA ASSESSING THE PROFESSIONAL EXPERIENCE OF AN OFFICIAL .

30 AS THE COURT HAS REPEATEDLY HELD ( SEE , IN PARTICULAR , ITS JUDGMENT OF 5 MAY 1966 IN JOINED CASES 18 AND 35/65 , GUTMANN , ( 1966 ) ECR 103 ), A DECISION MAY AMOUNT TO A MISUSE OF POWERS ONLY IF IT APPEARS , ON THE BASIS OF OBJECTIVE , RELEVANT AND CONSISTENT , TO HAVE BEEN TAKEN FOR PURPOSES OTHER THAN THOSE STATED .

31 IT IS CLEAR FROM THE FILE ON THE CASE AND , IN PARTICULAR , FROM THE STATEMENTS MADE AT THE HEARING THAT THE APPLICANT HAS BEEN UNABLE TO DEMONSTRATE CONVINCINGLY THAT THE PRESIDENT OF THE COURT OF AUDITORS INTENDED TO TAKE DISCIPLINARY ACTION AGAINST HIM . CONSEQUENTLY , SINCE HE HAS BEEN UNABLE TO ADDUCE SUFFICIENT EVIDENCE THAT THE APPOINTING AUTHORITY PURSUED ANY OBJECTIVE OTHER THAN A LEGITIMATE OBJECTIVE , THE APPLICANT MUST ALSO FAIL IN HIS FIFTH SUBMISSION .

FAILURE TO STATE ADEQUATE REASONS
32 THE APPLICANT CONSIDERS , IN THE FIRST PLACE , THAT THE DECISION OF THE COURT OF AUDITORS OF 24 MARCH 1983 DID NOT STATE ANY OF THE REASONS ON WHICH IT WAS BASED AND WAS , MOREOVER , NOT NOTIFIED TO HIM AND , SECONDLY , THAT THE PRESIDENT ' S DECISION OF 14 APRIL 1983 , WHICH SIMPLY REFERRED TO THE PREVIOUS DECISION AND TO THE INTERESTS OF THE SERVICE , DID NOT CONTAIN AN ADEQUATE STATEMENT OF THE REASONS ON WHICH IT WAS BASED .

33 THE DEFENDANT CONTENDS THAT THE DECISION OF 24 MARCH 1983 DID NOT HAVE TO STATE THE REASONS ON WHICH IT WAS BASED SINCE IT WAS A GENERAL DECISION . IT MAINTAINS THAT THE DECISION ADOPTED BY THE APPOINTING AUTHORITY , ON THE OTHER HAND , DID STATE THE REASONS ON WHICH IT WAS BASED , ALBEIT CONCISELY , BY VIRTUE OF THE REFERENCE TO THE INTERESTS OF THE SERVICE AND TO THOSE OF THE APPLICANT AND THAT , IN THE CIRCUMSTANCES , THE REASONS STATED WERE SUFFICIENT .

34 SINCE THE MEASURE AT ISSUE IN THE PRESENT CASE IS CONCERNED WITH DEPARTMENTAL ORGANIZATION AND WAS ADOPTED , AS HAS BEEN SHOWN ABOVE , IN THE INTERESTS OF THE SERVICE AND IN CONFORMITY WITH THE PRINCIPLE OF ASSIGNMENT TO AN EQUIVALENT POST , THE DUTY TO STATE THE REASONS ON WHICH IT WAS BASED MUST BE VIEWED IN THE LIGHT OF THE DISCRETIONARY POWER ENJOYED BY THE APPOINTING AUTHORITY IN THIS AREA AND THE INCIDENTAL NATURE OF THE DISADVANTAGES WHICH SUCH A MEASURE MAY ENTAIL FOR THE OFFICIAL CONCERNED .

35 ALTHOUGH THE INTERNAL ORGANIZATION OF THE COURT OF AUDITORS MADE IT NECESSARY TO RESORT , FOR THE TRANSFER OF THE POST IN QUESTION , TO A PROCEDURE INVOLVING FIRST A DECISION BY THE COURT OF AUDITORS AS A COLLEGIATE BODY AND THEN A DECISION BY THE APPOINTING AUTHORITY , THE DISTINCTIVE NATURE OF THAT INTERNAL ORGANIZATION CANNOT JUSTIFY A DEROGATION FROM THE REQUIREMENTS LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS , WHICH PROVIDES THAT ANY DECISION ADVERSELY AFFECTING AN OFFICIAL MUST STATE THE GROUNDS ON WHICH IT IS BASED .

36 THUS , THE REASONS STATED IN THE DECISION OF THE APPOINTING AUTHORITY OF 14 APRIL 1980 , VIEWED IN THEMSELVES , ARE CLEARLY INSUFFICIENT . HOWEVER , IN ORDER TO DECIDE WHETHER THE REQUIREMENTS OF ARTICLE 25 HAVE BEEN SATISFIED , IT IS APPROPRIATE TO TAKE INTO CONSIDERATION NOT ONLY THE CONTESTED DECISION BUT ALSO THE CIRCUMSTANCES SURROUNDING ITS ADOPTION . SINCE THE PURPOSE OF THE DUTY TO STATE THE REASONS ON WHICH A DECISION IS BASED IS BOTH TO PERMIT THE PERSON CONCERNED TO DETERMINE WHETHER THE DECISION CONTAINS A DEFECT ALLOWING ITS LEGALITY TO BE CHALLENGED AND TO ENABLE IT TO BE REVIEWED BY THE COURT , IT FOLLOWS THAT THE EXTENT OF THAT DUTY MUST BE DETERMINED ON THE BASIS OF THE PARTICULAR FACTS OF EACH CASE .

37 IN THIS CASE , IT IS CLEAR FROM THE FILE ON THE CASE THAT , IN THE LIGHT OF HIS CAREER AT THE COURT OF AUDITORS AND THE DISTINCTIVE NATURE OF THAT INSTITUTION , WHICH ENTAILS IN PARTICULAR A TENDENCY TOWARDS STANDARDIZATION OF TASKS AND STAFF MOBILITY , THE APPLICANT MIGHT HAVE EXPECTED THE COURT OF AUDITORS TO TRANSFER HIM TO ANOTHER SECTOR , PARTICULARLY IN VIEW OF THE COMMUNICATIONS TRANSMITTED TO HIM BY THE SECRETARY GENERAL AND THE DISCUSSIONS WHICH TOOK PLACE BETWEEN THEM .

38 IN THOSE CIRCUMSTANCES , SINCE THE MEASURE IN QUESTION IS CONNECTED WITH INTERNAL ORGANIZATION IN THE INTERESTS OF THE SERVICE , IN RESPECT OF WHICH THE COMPETENT AUTHORITY MUST NECESSARILY ENJOY A BROAD DISCRETION , THE CONTESTED DECISION , SET IN ITS CONTEXT , CANNOT BE REGARDED AS VITIATED BY AN INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS JUSTIFYING ITS ANNULMENT .

39 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION FOR ANNULMENT IS UNFOUNDED AND MUST BE REJECTED .


COSTS
40 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

41 HOWEVER , UNDER ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE , THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR . IN THIS CASE , THE COURT OF AUDITORS , BY FAILING TO PROVIDE THE APPLICANT WITH A PROPER AND EXPRESS STATEMENT OF THE REASONS FOR HIS TRANSFER , CONTRIBUTED TO A VERY LARGE EXTENT TO THE DISPUTE WHICH GAVE RISE TO THIS ACTION . IN THOSE CIRCUMSTANCES , THE DEFENDANT MUST BE ORDERED TO PAY THE COSTS .


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

2 . ORDERS THE COURT OF AUDITORS TO PAY THE WHOLE OF THE COSTS , INCLUDING THOSE OF THE APPLICANT .

  
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