Opinion of Mr Advocate General Reischl delivered on 30 June 1977. # Jean-Jacques Geist v Commission of the European Communities. # Periodic reports. # Case 61-76.

(aa)

In this connexion it is necessary first to deal with the question whether the Commission was in breach of the second paragraph of Article 25 of the Staff Regulations of Officials which provides that decisions adversely affecting officials shall state the reasons on which they are based. In the opinion of the applicant this is so because the decision of the Director-General of the Joint Research Centre of 10 November 1975 does no more than mention the interests of the service of the Commission in a transfer and gives no further details. On the other hand the Commission objected principally that a decision providing for a transfer for official reasons requires no statement of the reasons upon which it is based. Moreover, it takes the view that such a statement of reasons, if considered necessary, is sufficiently contained in letters which were sent to the applicant in connexion with the transfer decision.

With regard to this issue it is necessary first to state that transfer decisions which are taken against the wishes of the person concerned must certainly be regarded as measures adversely affecting an official within the meaning of the second paragraph of Article 25 of the Staff Regulations of Officials and therefore require a statement of the reasons upon which they are based. This is clearly shown by the decision in Case 35/72 (Walter Kley v Commission of the European Communities, judgment of 27 July 1973, [1973] ECR 688) after a different view had been put forward in the judgment in Joined Cases 18 and 35/65 (Max Gutmann v Commission of the European Atomic Energy Community, judgments of 5 May 1966 and 15 March 1967, [1966] ECR 103 and [1967] ECR 75).

On the other hand, it is however also of importance that the duty to give a statement of reasons depends upon decisions previously taken with regard to the person concerned (Case 36/64, Société Rhénane d'Exploitation et de Manu-tention (SOREMA) v High Authority of the ECSC, judgment of 2 June 1965, [1965] ECR 329, and Case 1/69, Government of the Italian Republic v Commission of the European Communities, judgment of 9 July 1969, [1969] ECR 277), and that with regard to that statement of reasons, as emphasized very generally in Case 35/72, the circumstances in which a decision is made are relevant.

Seen in this way, it is necessary to take into consideration in the present case the fact that the applicant had already been informed in a letter of 1 October 1975 from the Director-General to whom he was responsible that the development of the molten salt breeder reactor (réacteur surgénérateur à sels fondus) was not catered for in the programme of the Joint Research Centre and will in addition not be catered for in the foreseeable future and that for that reason it was impossible, under the programme laid down by the Council of Ministers for Petten, to employ the special knowledge of the applicant there. It is even more important that, in a letter of 11 December 1975 from the Director-General of the Joint Research Centre accompanying the transfer decision, reference is made to a memorandum of 17 November 1975. In that memorandum which was also from the Director-General of the Joint Research Centre it was explained to the applicant that the work relating to molten salt breeder reactors could not be continued within the sphere of the Joint Research Centre. In addition his attention was drawn to the fact that other Directorates. General likewise had no tasks of this nature to offer. For that reason it was necessary to entrust the applicant with tasks which formed part of the programme of the Joint Research Centre. As it was impossible to employ the applicant in Petten, Karlsruhe or Geel in accordance with his knowledge and abilities, and because there were two opportunities of this nature in Ispra, which were described in detail, it was necessary to consider transferring him to Ispra.

I have a mind to accept that the duty to give a statement of reasons was, in the circumstances, fulfilled in that way. However, I consider that the fact that the contents of the abovementioned memoranda were not repeated in the transfer decision itself does not justify speaking of an infringement of essential procedural requirements. Consequently, it is impossible to justify annulment of the transfer decision by a reference to the second paragraph of Article 25 of the Staff Regulations of Officials.

(bb)

Secondly, the applicant takes the view that the issue of a transfer decision presupposes an examination of the personal file. In his case it is necessary to take into consideration in this connexion the fact that his personal file did not include any reports under Article 43 of the Staff Regulations with a description of his duties, since the last report concerning him was made in 1969 and, in addition, was criticized by the competent committee in reply to his complaint. It may therefore be said that the transfer decision has no substantial basis because it was not drawn up with knowledge of all facts relating to the career of the applicant and his work.

In this connexion it is necessary, and I shall come back to this fact again in another connexion, to acknowledge that since the abovementioned date no reports concerning the applicant have in fact been drawn up under Article 43 of the Staff Regulations, reports which, as you know, must also contain a description of the duties. However I am, with the Commission, of the opinion that it is nevertheless impossible to say that the transfer decision has no substantial basis. In fact it is necessary to bear in mind that the applicant, as described at the outset, was directly attached to the Director of the research establishment at Petten and, from 1970 onwards, to the Director-General of the Joint Research Centre. Therefore it can immediately be assumed that the Director-General of the Joint Research Centre was indeed informed of the work and abilities of the applicant and that the transfer decision made by him was therefore issued with knowledge of all important factors.

(cc)

It is claimed that the fact that there was no vacant post available in Ispra is a further defect in the transfer procedure. It is alleged that in any case there was no vacancy notice in accordance with Article 4 of the Staff Regulations, a notice which is necessary so that the officials concerned and, if necessary, the Court of Justice can examine whether the post to which the applicant is being transferred corresponds to his grade and abilities.

With regard to this allegation, it is, first, important that the applicant was transferred from Petten to Ispra together with his post. This explains why there was no vacant post in Ispra and no vacany notice as provided for in the Staff Regulations. In fact, according to the case-law of the Court, (see the judgment in Case 61/70, Gianfranco Vistosi vCommission of the European Communities, judgment of 16 June 1971, [1971] ECR 535), a vacancy notice is not necessary if the official who occupied a post is transferred together with it, in other words if the appointing authority considers that a post must be transferred from one service to another service in which it can be more usefully employed. In this connexion, and at this stage I shall do no more than point this out, if the administrative structures and the classification of duties are not to become intolerably rigid it is irrelevant in the case of scientific officers whether there are some changes in the duties of the official concerned.

On the other hand it is essential with regard to the present case that the examination considered necessary by the applicant (as to whether the duties and grade correspond) can in fact be carried out. In this respect the description of duties contained in the abovementioned memorandum from the Director-General of the Joint Research Centre of 17 November 1975 in respect of the posts at Ispra which came into consideration at that time ought in fact to be sufficient.

It is likewise hardly possible to criticize the transfer decision from the aspect with which I have just dealt.

(dd)

Finally, and I shall say it at once, the same thing applies to the fourth objection that the transfer decision was not posted up, in breach of the third paragraph of Article 25 of the Staff Regulations, but first brought to the applicant's knowledge through a staff notice of 29 April 1976 that he had been transferred to Ispra as from 1 March 1976.

In my opinion it is quite clear that the intention of the provision on which the applicant bases his argument is only to inform the staff of such events so that officials concerned may duly lodge a complaint if necessary. On the other hand it is incorrect to regard the requirement laid down in the third paragraph of Article 25 as a condition for the validity of decisions of that nature. Therefore a breach of the third paragraph of Article 25 of the Staff Regulations can likewise not lead to the annulment of the transfer decision.

(aa)

In this connexion it must be pointed out from the beginning that the appointing authority has wide discretion in respect of the issue of measures of that nature which are closely connected with the exercise of the power of the administration. Accordingly, the Court of Justice cannot in such a case enter into all questions of detail, particularly not those which involve considerations of expediency. In a case such as this judicial review by the Court of Justice rather amounts in essence to determining whether convincing reasons have been brought forward to show that the applicant could not appropriately be further employed in his former context and that it appeared possible to employ him usefully in the field to which he was transferred. Moreover, in examining the question whether this decision is appropriate it is perhaps also possible to consider the question whether the appointing authority took essential personal interests into consideration to a reasonable extent and whether, before issuing a decision involving radical changes, it took sufficient pains to find less drastic solutions.

From this point of view the starting-point of the applicant's criticism is already inappropriate. In my opinion it is impossible to justify the applicant's view that the appointing authority is under a duty to give absolute priority to the consideration of ensuring that the applicant can continue to work in his special field. Likewise, the opinion that the transfer decision may only be regarded as correct if evidence is produced that other conceivable solutions, in other words employment of the applicant outside Ispra, did not come into question at all is unacceptable.

(bb)

The important point is therefore whether serious material reasons were shown for not retaining the applicant in the post and the duties which he had occupied until the end of 1975.

In this connexion events which took place a considerable time ago are relevant. Thus, a decision of the Council adopted in 1965 on the modification of the research programme for Petten led to the dissolution of the Hydrodynamics and Measures Division of which the applicant had been the head from 1963 onwards. The applicant, for whom employment within the research programme for Petten properly speaking did not at that time come into consideration, was subsequently entrusted with the continuation of his previous work and studies and, it is true, in an unusual post; he was first attached directly to the Director of the research establishment at Petten and later directly attached to the Director-General of the Joint Research Centre.

This seemed justifiable for a while, that is, for so long as there were surplus scientific staff at the Joint Research Centre who could not be employed within the context of programmes which had been laid down. However, following the continuous reduction in the total staff this was apparently also no longer the case in Petten from 1974 onwards. Accordingly a memorandum from the Director-General of the Joint Research Centre of 27 May 1974 stated that from 1974 onwards the Council no longer authorized surplus scientific staff.

In addition, in 1975 a new programme was laid down for Petten on which all employees had to concentrate. There was apparently no room in this context either for the studies of the applicant and no solution could be found in that context for an appropriate use of the applicant's knowledge and abilities.

In view of this situation, which the applicant does not seriously call in question, it can in fact be assumed that there was an essential starting-point for the issue of the transfer decision, in other words the necessity of employing the applicant elsewhere. In any case it is impossible in this respect to see anything which indicates a misuse of discretionary power.

(cc)

So far as the further question of interest in this connexion is concerned, whether the appointing authority took sufficient pains to find a less radical measure before deciding the transfer to Ispra, I can see no reason here either for a convincing criticism.

In this respect I need not dwell on the fact that the applicant was advised at the beginning of 1975 to apply for the post of scientific attaché in Washington and that this was unsuccessful because another candidate was preferred. In the present proceedings there is no need to consider or decide whether this vacancy was filled correctly since the applicant has failed to lodge a direct action within the prescribed period against the abovementioned measure.

It is important, rather, that, as the Court was shown by means of the letter mentioned at the outset, attempts were made at certain Directorates-General in Brussels. However, they were unsuccessful because the applicant's special field could apparently not be appropriately fitted into any of the current projects of the Directorate-General to whom letters were written. It is also important, and the applicant was unable to refute this fact, that the appointing authority examined the possibility of employment in other research establishments (Karlsruhe, Geel and Mol). It seems that this did not lead to any satisfactory result either, on account, first, of the small staff of those establishments, and, secondly, because of their special areas of work for which the applicant's specialist knowledge was not of interest.

This is sufficient to assume that the appointing authority made reasonable efforts and that therefore this is not a case of misure of discretionary powers. On the other hand, there is no reason to consider the question whether it would not have been possible to extend the efforts further since the applicant was unable to prove sufficiently that obvious opportunities of employment existed at other Directorates-General. It is likewise impossible to prove a misuse of powers by reference to the fact that the appointing authority did not examine whether the applicant could be employed in the context of agreements with national or international agencies or even seconded, as provided for in Article 6 of the EAEC Treaty. There is likewise insufficient clear evidence thereof quite apart from the fact that considerations in this connexion would encroach too far on the margin of discretion reserved to the appointing authority within which it alone must come to a decision on the priorities in the treatment of certain subjects and the employment of the staff at its disposal.

(dd)

In his criticisms the applicant lays great stress, which brings me to a further consideration, on the fact that his transfer was not agreed with the head of the Joint Research Centre at Ispra responsible and that he was given no clearly defined duties in Ispra. Accordingly it cannot be assumed that the requirements of the service necessitated his transfer to Ispra. In addition, it is important that the duties which were mentioned in the transfer decision were of a lower level than his former tasks and that he was also assigned to a lower position in the hierarchy of officials.

The first part of this criticism is clearly unfounded. The Commission has assured the Court, and I see no reason to doubt the truth of its statement, that the Director of the research establishment at Ispra agreed orally to the transfer of the applicant. It is not therefore correct that the administration of the establishment did not see any reasonable employment for the applicant. It is likewise incorrect that the duties to which the applicant was newly assigned were not clearly defined. In this connexion it is possible to refer to the abovementioned letter of the Director-General of the Joint Research Centre of 17 November 1975 which preceded the transfer. Secondly, a telex sent on 12 March 1976 by one of the applicant's superiors to the Director General of the Joint Research Centre shows that the applicant had been informed about his new duties.

Moreover, so far as the nature and level of the duties to which the applicant was assigned and his position in the hierarchy of officials are concerned, it is necessary to make the following observations.

I do not consider decisive the fact that a certain change in duties occurs when an official is transferred so long as a sufficiently close connexion exists with the activities carried out until then and with the education and knowledge of the official concerned. I am convinced that it has not been sufficiently clearly shown that this was lacking in the present case. In particular the statement that the duties assigned to the applicant in Ispra are really those of a technician in Grade B 1 is in no way substantiated. In this respect, it should in particular be borne in mind that the applicant is an official in Grade A 5 and as such is in a career bracket containing several grades (Grade A 5 to Grade A 8). In my opinion it is not particularly surprising that in this connexion the level of the duties are not always clearly enough contrasted with one another.

On the other hand, the fact that the applicant was intergrated into the hierarchy of officials in Ispra and accordingly has four levels of superiors above him is of no importance because this is the normal rule in the case of an official in Grade A 5. This cannot be regarded as a downgrading even if it is a fact that the applicant was for a long time directly attached to the Director of a research establishment and subsequently directly attached to the Director-General of the Joint Research Centre. As I have already mentioned, this occurred after the disbanding of the service of which the applicant had originally been the head when the problem arose how appropriately to employ him further. However it is impossible to say that in this way the applicant became an ‘adviser’, and in particular it is impossible to derive from this a claim that the special situation caused by the difficulties of which this Court is aware had to continue as before and that the applicant had always to remain outside the hierarchy provided for under the Staff Regulations of Officials.

(ee)

Finally, I have still to examine the question whether it is possible to call in question the legality of the transfer decision on the ground that it led to a restriction of the duties with which the applicant was entrusted in the context of a committee of experts formed within the International Atomic Energy Agency and which were supposed to be completed in 1977. In addition, it is necessary to examine whether it is possible to object to the transfer decision on the ground that it did not take into consideration the fact that the applicant as the innocent party to a divorce has custody of three children who are minors, two of whom were born in the Netherlands, and that their Netherlands' governess is not willing to move with them to Italy for a long period of time.

With regard to the first point, the activities of the applicant in Vienna, it is necessary to emphasize first that, in a memorandum from the Director-General of the Joint Research Centre of 28 November 1975 in which the applicant was authorized to accept the invitation to the conference in Vienna from 8 to 11 December 1975, it was expressly emphasized that activities in this field could not be pursued further because they no longer formed part of the Community research programme. In this way it was made clear, and in so doing the transfer of the applicant was certainly already envisaged, that the applicant was not supposed to undertake important duties which required a long period of time. Moreover, reference was once more made thereto in a telex from the Director-General of the Joint Research Centre which was sent to one of the applicant's superiors on 19 March 1976. The fact that the applicant was only left marginal time for the activities in Vienna (10 % was mentioned as the criterion in a letter) can therefore hardly be put forward against the transfer decision. In my opinion it would be of no importance even if the above-mentioned restriction had not been imposed at the outset, for it is obviously within the discretion of the appointing authority to re-organize work if it takes the view that certain duties must take precedence in the Community programme. An official never has a right to the continuation of certain activities which have at one time been entrusted to him or which he has at one time been authorized to perform.

On the other hand with regard to the applicant's family situation it should not be ignored that the transfer involved problems for him in so far as the Netherlands' governess of his children is not prepared to move to Italy permanently. However, I take the view that this is not an absolute bar precluding a transfer decision if the latter seems appropriate for official reasons. In addition, I cannot agree that these are insoluble problems. In the proceedings the applicant, who was, after all, prepared to go to the USA in 1975, did nothing to counteract the impression that he has not yet made any special efforts to solve this problem, which is certainly difficult.

(ff)

On the basis of the examination of all the foregoing aspects it can be stated that the Commission cannot be reproached with a misuse of powers in the adoption of the contested transfer decision. Since, in addition, other evidence which is intended to show that this is a disguised disciplinary measure is not sufficiently weighty — the applicant puts forward in this connexion the fact that the Hydrodynamics and Measures Division was disbanded, his secretary was taken away, his office in Petten was cleared without his knowledge together with other related threatened sanctions — it can be stated all in all that the principal claim for the annulment of the transfer decision is unfounded