JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

8 May 2008

Case F-119/06

Petrus Kerstens

v

Commission of the European Communities

(Civil service – Officials – Admissibility – Organisation Chart – Act adversely affecting an official – Change of posting – Change of duties – Interests of the service – Equivalence of posts – Covert penalty – Misuse of powers)

Application: brought under Articles 236 EC and 152 EA, in which Mr Kerstens seeks annulment of the decision of 8 December 2005 of the Board of the Office for Administration and Payment of Individual Entitlements (PMO) amending the PMO’s organisation chart, and an order for the Commission to pay him damages for the harm allegedly suffered.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Definition – Reorganisation of departments changing the applicant’s duties – Included

(Staff Regulations, Arts 90 and 91)

2.      Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7(1); Annex IX)

1.      An action brought by a head of unit against a reorganisation decision which changes the tasks and name of his unit while providing for him to continue as its head is admissible. Even if it does not affect the official’s material interests and/or rank, a change of duties may, in altering the conditions for the performance of his duties and also their nature, impair his non-material interests and future prospects and thus adversely affect him, since certain duties may, whilst being equally classified with others, lead more readily to promotion because of the nature of the responsibilities exercised. Consequently, there is no prima facie reason why such a change should not adversely affect the official concerned.

(see paras 45, 46, 48)

See:

T-78/96 and T-170/96 W v Commission [1998] ECR-SC I‑A‑239 and II‑745, para. 47; T-51/01 Fronia v Commission [2002] ECR-SC I‑A‑43 and II‑187, para. 24

2.      The institutions have a wide discretion in the organisation of their departments according to the tasks conferred on them and in the assignment, in view of those tasks, of staff who are made available to them, on condition, however, that that assignment is carried out in the interest of the service and with respect for the principle of assignment to an equivalent post.

Regarding the first condition, and in view of the scope of the institutions’ discretion in assessing the interest of the service, the Tribunal’s review must be confined to the question whether the appointing authority remained within reasonable and proper bounds and did not use its power in a manifestly incorrect way.

Regarding the second condition, in the event of a change in an official’s duties, the principle that the post to which an official is assigned should correspond to his grade, set out in Article 7 of the Staff Regulations in particular, calls for a comparison, not between his present and previous duties, but between his present duties and his grade. There is therefore nothing to prevent a decision from entailing the assignment of new duties which, while they differ from those previously performed and are regarded by the official concerned as a reduction in his responsibilities, are nevertheless consistent with a post corresponding to his grade. Thus, an effective diminution of an official’s responsibilities infringes the rule that the post to which an official is assigned should correspond to his grade only if, taken together, his new duties clearly fall short of those corresponding to his grade and post, taking account of their character, their importance and their scope.

If a decision changing an official’s duties is not contrary to the interests of the service or the equivalence of posts, there can be no question of a covert disciplinary sanction or misuse of power, since the official cannot complain that the administration has not initiated disciplinary proceedings against him, which would have enabled him to take advantage of the procedural guarantees provided for in Annex IX to the Staff Regulations.

(see paras 82, 84, 96, 97, 103)

See:

19/87 Hecq v Commission [1988] ECR 1681, para. 7; C‑116/88 and C‑149/88 Hecq v Commission [1990] ECR I‑599, para. 11; judgment of 14 December 2006 in C‑12/05 P Meister v OHIM, not published in the ECR, paras 45 and 47

T-46/89 Pitrone v Commission [1990] ECR II‑577, para. 35; T-73/96 ForcatIcardo v Commission [1997] ECR-SC I‑A‑159 and II‑485, para. 39; T-98/96 Costacurta v Commission [1998] ECR-SC I‑A‑21 and II‑49, para. 36; Fronia v Commission, para. 53; T‑103/01 Cwik v Commission [2002] ECR-SC I‑A‑229 and II‑1137, para. 30; T-373/04 Fries Guggenheim v Cedefop [2006] ECR-SC I‑A‑2‑169 and II‑A‑2‑819, para. 67; T-339/03 Clotuche v Commission [2007] ECR-SC I-A-2-0000 and II-A-2-0000, paras 47, 62, 91 and 126; T‑118/04 and T‑134/04 Caló v Commission [2007] ECR-SC I‑A‑2-0000 and II-A-2-0000, para. 101