1 THE APPLICANT TOOK UP HIS DUTIES ON 1 APRIL 1962 AT THE JOINT RESEARCH CENTRE AT PETTEN ( THE NETHERLANDS ) AS THE ' HEAD OF HYDRAULIC STUDIES ' AND WAS ESTABLISHED ON 1 OCTOBER 1962 AS A SCIENTIFIC OFFICER IN GRADE A 6 .
2 AS A RESULT OF FAVOURABLE PERIODIC REPORTS POINTING OUT HIS ' EXTREMELY SOUND AND WIDE KNOWLEDGE IN HIS FIELD OF HYDRAULICS AND THE ALLIED FIELDS OF MECHANICS AND RESEARCH ' , HE WAS APPOINTED HEAD OF THE HYDRODYNAMICS AND MEASURES DIVISION , A POST WHICH HE OCCUPIED IN 1963 AND 1964 .
3 IN THE CONTEXT OF THESE ACTIVITIES , HE WAS SECONDED TO THE UNITED STATES IN 1964 AND 1965 AND ON HIS RETURN WAS PROMOTED TO GRADE A 5 ON 1 JANUARY 1966 .
4 DURING THE SUMMER OF 1967 , THE DIRECTORATE OF THE ESTABLISHMENT AT PETTEN CONSIDERED , IN AGREEMENT WITH THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE , THAT THE CHANGE IN THE SECOND RESEARCH PROGRAMME OF 1962 , WHICH WAS DECIDED BY THE COUNCIL ON 15 JUNE 1965 , NO LONGER ENABLED RESEARCH TO BE CONTINUED IN THE APPLICANT ' S SPECIAL FIELD ( LIQUID FUEL REACTORS ) AND THAT THE STAFF SHOULD THENCEFORTH DEVOTE THEMSELVES TO NEW DUTIES FIXED AT THE INSTITUTION .
5 THE GROUP OF WHICH THE APPLICANT WAS HEAD WAS THEREFORE DISBANDED ON 24 JULY 1967 AND IN THESE CIRCUMSTANCES THE QUESTION OF AN APPROPRIATE POSTING FOR THE APPLICANT BEGAN TO ARISE .
6 AT FIRST , AS FROM APRIL 1968 , THE APPLICANT , WHO WAS DIRECTLY ATTACHED TO THE DIRECTOR OF THE ESTABLISHMENT AT PETTEN , THEN TO THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE , WAS ABLE TO CONTINUE HIS STUDIES ON MOLTEN SALT BREEDER REACTORS AND CARRIED OUT SEVERAL MISSIONS IN THAT CONNEXION TO NATIONAL DEPARTMENTS AND INTERNATIONAL ORGANIZATIONS .
7 IN 1975 THE DIRECTORATE OF THE JOINT RESEARCH CENTRE CONSIDERED HOWEVER THAT THIS SITUATION COULD NOT CONTINUE AND ASKED THE APPLICANT TO APPLY FOR THE POST OF SCIENTIFIC ATTACHE TO THE COMMUNITY ' S DELEGATION IN WASHINGTON , A POST WHICH WAS HOWEVER GIVEN TO ANOTHER OFFICIAL FOR REASONS WHICH ARE EXTRANEOUS TO THE APPLICANT ' S QUALIFICATIONS .
8 THE DEVELOPMENT OF REACTOR SYSTEMS , WHICH WAS LEFT TO THE INITIATIVE OF THE MEMBER STATES , WAS CONFIRMED BY A DECISION OF THE COUNCIL OF MINISTERS OF 22 AUGUST 1975 ( OJ L 231 OF 2 SEPTEMBER 1975 ).
9 AT THE END OF SEPTEMBER 1975 , THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE CONSIDERED THE TRANSFER OF THE APPLICANT TO A POST IN ANOTHER PROGRAMME AND TOOK CARE TO KEEP THE LATTER INFORMED OF THE ATTEMPTS MADE TO FIND HIM A POST .
10 AT THE END OF 1975 HE WAS INFORMED THAT IN VIEW OF THE PROGRAMMES AND THE WORK TO BE CARRIED OUT THE ONLY REMAINING POSSIBILITY WAS TWO VACANT POSTS AT ISPRA AND HE WAS ASKED TO INDICATE HIS CHOICE BETWEEN THEM .
11 THE APPLICANT DID NOT MAKE USE OF THIS OPTION AND , BY DECISION OF 10 DECEMBER 1975 OF THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE , HE WAS TRANSFERRED TO ISPRA WITH EFFECT FROM 1 MARCH 1976 .
12 IN THE MEANTIME , THE APPLICANT HAD , BECAUSE OF HIS ABOVEMENTIONED EXTERNAL CONTACTS , BECOME COORDINATOR OF A GROUP OF EXPERTS OF THE INTERNATIONAL ATOMIC ENERGY AGENCY IN HIS SPECIAL FIELD .
13 IN FEBRUARY 1976 THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE INFORMED HIM THAT THAT WORK SHOULD REMAIN MARGINAL IN RELATION TO HIS WORK AT ISPRA AND IN ANY CASE SHOULD NOT EXCEED 10 % OF THE TIME WHICH HE OWED HIS ADMINISTRATION .
14 THE APPLICANT AT FIRST RECEIVED FLATTERING PERIODIC REPORTS BUT THE 1969 REPORT STATED THAT HE WAS ONLY PERFORMING MARGINAL WORK OF A PARTIAL AND TEMPORARY NATURE .
15 THE APPLICANT LODGED A COMPLAINT ON THE BASIS OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS ON 26 MARCH 1970 , BECAUSE HE CONSIDERED THAT THAT APPRAISAL AFFECTED HIM ADVERSELY .
16 ON 21 MAY 1970 THE JOINT REPORTS COMMITTEE REPORTED THAT ' MR GEIST ' S PERIODIC REPORT IS IRREGULAR IN SO FAR AS IT GIVES AN APPRAISAL , WITHOUT DETAILS , OF THE ABILITY , EFFICIENCY AND CONDUCT IN THE SERVICE OF THIS OFFICIAL WITHOUT DESCRIBING THE DUTIES WITH WHICH HE WAS ENTRUSTED AND WHICH HE PERFORMED IN THE POST WHICH IS THE SUBJECT-MATTER OF THE PERIODIC REPORT ' .
17 THIS REPORT OF 1969 WAS HOWEVER NOT COMPLETED AND THOSE OF 1971 , 1973 AND 1975 WERE NOT DRAWN UP .
18 ON 26 FEBRUARY 1976 THE APPLICANT REQUESTED THE APPOINTING AUTHORITY TO :
- ANNUL THE TRANSFER DECISION ,
- AUTHORIZE HIM TO DEVOTE ALL HIS TIME TO THE VIENNA WORK ,
- ADOPT A VIEWPOINT ON THE OBSERVATIONS PUT FORWARD BY HIM ON THE PERIODIC REPORTS OF 1967 AND 1969 ,
- DESCRIBE HIS ACTIVITIES FROM 1966 TO 1976 ,
- DRAW UP PERIODIC REPORTS WITHIN THE MEANING OF ARTICLE 43 OF THE STAFF REGULATIONS FOR THE PERIOD FROM 1965 TO 1975 ,
- APPOINT HIM AS HEAD OF A SERVICE FROM 1965 ,
- PAY HIM THE CORRESPONDING ARREARS OF SALARY , AND AWARD HIM DAMAGES .
19 IN THE ABSENCE OF A REPLY THE APPLICANT , BY APPLICATION LODGED AT THE COURT REGISTRY ON 30 JUNE 1976 , MADE SPECIFIC BY THE CONCLUSION CONTAINED IN HIS REPLY , REQUESTED :
- THE ANNULMENT OF THE TRANSFER DECISION OF 10 DECEMBER 1975
- AN ORDER THAT THE DEFENDANT SHOULD PAY FB 1 FOR NON-MATERIAL DAMAGES AND FB 71 000 FOR MATERIAL DAMAGES
- AN ORDER THAT THE DEFENDANT SHOULD DESCRIBE THE DUTIES ENTRUSTED TO THE APPLICANT SINCE 1967 AND SHOULD DRAW UP THE TWO-YEARLY PERIODIC REPORTS CONCERNING HIM
- AN ORDER THAT THE DEFENDANT SHOULD PAY DAMAGES FOR THE DAMAGE THEREBY SUFFERED OF AN AMOUNT TO BE FIXED BY THE COURT EX AEQUO ET BONO
- THE ANNULMENT OF THE REFUSAL OF THE DEFENDANT TO PERMIT THE APPLICANT TO CONTINUE , EXCEPT MARGINALLY OR FOR 10 % , HIS STUDIES , RESEARCH AND COLLABORATION IN THE FIELD OF THERMAL BREEDER REACTORS AND IN PARTICULAR TO ACT AS COORDINATOR AND RAPPORTEUR FOR THE COMMITTEE OF EXPERTS ESTABLISHED BY THE INTERNATIONAL ATOMIC ENERGY AGENCY .
20 THE REQUESTS FORMULATED IN THE APPLICATION AND THE REPLY AND STATED IN DETAIL DURING THE ORAL PROCEDURE MAY BE SUMMARIZED IN THE FORM OF THREE SUBMISSIONS WHICH SHOULD BE EXAMINED IN TURN .
I - THE LEGALITY OF THE TRANSFER DECISION
21 THE APPLICANT CLAIMS THAT THE TRANSFER DECISION , WHICH WAS TAKEN AGAINST HIS WISHES AND PLACED HIM IN A SERIOUS POSITION FROM THE FAMILY POINT OF VIEW , DID NOT STATE THE REASONS UPON WHICH IT WAS BASED WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS AND THAT THE COURT COULD NOT EXERCISE ITS POWERS OF JUDICIAL REVIEW ON A MERE REFERENCE TO THE INTERESTS OF THE SERVICE .
22 MOREOVER IT WAS TAKEN AFTER EXAMINATION OF AN INCOMPLETE AND INACCURATE PERSONAL FILE .
23 FOR THE PURPOSE OF DECIDING WHETHER THE REQUIREMENTS OF ARTICLE 25 HAVE OR HAVE NOT BEEN FULFILLED , IT IS NECESSARY TO CONSIDER NOT ONLY THE TRANSFER DECISION IN ITSELF BUT THE STAFF MEMORANDA ON WHICH IT IS BASED WHICH WERE DULY BROUGHT TO THE KNOWLEDGE OF THE APPLICANT AND WHICH CLEARLY INFORMED HIM OF THE REASONS UPON WHICH THAT DECISION WAS BASED
24 IN THE PRESENT CASE THE TRANSFER DECISION WAS PRECEDED BY A MEMORANDUM FROM THE DIRECTOR-GENERAL INFORMING THE APPLICANT AS EARLY AS 1 JUNE 1975 THAT , IN VIEW OF THE PROGRAMMES LAID DOWN BY THE COUNCIL FOR THE ESTABLISHMENT AT PETTEN , HIS SKILLS COULD NO LONGER BE USED THERE .
25 BY MEMORANDUM FROM THE DIRECTOR-GENERAL OF THE JOINT RESEARCH CENTRE OF 11 DECEMBER 1975 ADDRESSED TO THE APPLICANT AT THE SAME TIME AS THE DECISION IN QUESTION , IT WAS EXPLAINED TO THE APPLICANT THAT THE WORK IN THE FIELD OF MOLTEN SALT BREEDER REACTORS COULD NO LONGER BE CONTINUED AT THE CENTRE AND THAT IN VIEW OF HIS SPECIAL FIELD IT WAS ONLY POSSIBLE TO CONSIDER TRANSFERRING HIM TO ONE OF THE TWO VACANT POSTS AT ISPRA .
26 THE TRANSFER DECISION IS THEREFORE COMPLETED BY A STATEMENT OF THE REASONS UPON WHICH IT IS BASED OF WHICH THE APPLICANT MUST HAVE BEEN AWARE AND WHICH CONTAINS ALL THE ESSENTIAL FACTORS WHICH GUIDED THE ADMINISTRATION IN ITS DECISION AND ARE THEREFORE SUFFICIENT TO ENABLE THE EXERCISE OF JUDICIAL REVIEW .
27 IT IS THEREFORE NECESSARY TO EXAMINE THE BASIS OF THAT STATEMENT OF THE REASONS UPON WHICH THE DECISION WAS BASED IN ORDER TO SEE IF IT ENABLES EVIDENCE OF INFRINGEMENT OF THE STAFF REGULATIONS OR OF MISUSE OF POWERS TO BE REVEALED .
28 IT IS THEREFORE NECESSARY TO EXAMINE THE CIRCUMSTANCES IN WHICH THE DECISION IN QUESTION WAS TAKEN .
29 THE FILE SHOWS THAT FOLLOWING THE DECISIONS OF THE COUNCIL OF MINISTERS OF 15 JUNE 1965 AND OF 22 AUGUST 1975 AMENDING THE PROGRAMMES IT WAS NO LONGER POSSIBLE TO USE THE APPLICANT ' S SKILLS IN THE ESTABLISHMENT AT PETTEN .
30 THE APPLICANT DID NOT APPLY FOR ANY OF THE VACANT POSTS WHICH AROSE .
31 AFTER ASKING THE ADVICE OF THE DIRECTORS OF THE ESTABLISHMENTS CONCERNED THE DIRECTOR-GENERAL INFORMED THE APPLICANT BY A MEMORANDUM DATED 1 OCTOBER 1975 , THEN IN ANOTHER OF 17 NOVEMBER 1975 , THAT IN VIEW OF THE INSTRUCTIONS OF THE COUNCIL OF MINISTERS HE WAS GIVING HIM THE CHOICE , WITHIN THE JOINT RESEARCH CENTRE , OF TWO POSTS IN THE MULTI-DISCIPLINARY FRAMEWORK OF ISPRA .
32 IN THE ABSENCE OF A REPLY FROM THE APPLICANT THE DIRECTOR-GENERAL USED HIS OWN AUTHORITY TO APPOINT HIM TO DEPARTMENT B OF THAT ESTABLISHMENT AND INFORMED HIM THAT A TEAM WHICH FORMED PART OF THE HEAT TRANSFER AND FLUID MECHANICS DIVISION NEEDED ' ADDITIONAL ASSISTANCE ' , ' THE WORK CONSISTING OF RESEARCH INTO HEAT TRANSFER AND BASIC HYDRODYNAMICS IN THE FIELD OF THE THERMAL TRANSIENT OF A THIN LAYER OF FUEL COOLED BY A LIQUID INVOLVING PHASE CHANGE ' .
33 THESE FACTS SHOW THAT THE DECISION VALIDLY STATED THE REASONS UPON WHICH IT WAS BASED , THAT THOSE REASONS WERE NOT EXTRANEOUS TO THE INTERESTS OF THE SERVICE AND THAT , MOREOVER , THE NEW POST TO WHICH THE APPLICANT WAS APPOINTED CORRESPONDED BEST TO THE EXERCISE OF HIS SKILLS AND INVOLVED NO DOWNGRADING .
34 FINALLY , WITH REGARD TO THE DIFFICULTIES CAUSED TO THE APPLICANT ' S PERSONAL CIRCUMSTANCES BY THE DECISION OF 10 DECEMBER 1975 IT IS NECESSARY TO EMPHASIZE THAT THE TRANSFER OF AN OFFICIAL OF THE COMMUNITY DOES NOT CONSTITUTE AN ABNORMAL AND UNFORESEEABLE EVENT IN HIS CAREER ALTHOUGH IT MAY CAUSE HIM FAMILY AND FINANCIAL DIFFICULTIES , WHEN THE PLACES OF EMPLOYMENT TO WHICH HE MAY BE ASSIGNED ARE SPREAD OVER SEVERAL STATES AND THE ADMINISTRATION MAY BE REQUIRED TO MEET NEEDS OF THE SERVICE WHICH COMPEL IT TO DECIDE SUCH TRANSFER .
35 IT FOLLOWS FROM THE FOREGOING THAT THE TRANSFER DECISION OF 10 DECEMBER 1975 WAS TAKEN REGULARLY BOTH AS TO FORM AND AS TO SUBSTANCE .
36 CONSEQUENTLY , THE APPLICATION FOR ANNULMENT OF THE TRANSFER DECISION OF 10 DECEMBER 1975 AND THE CORRESPONDING ACTION FOR DAMAGES MUST BE DISMISSED .
II - THE LEGALITY OF THE DECISION PROHIBITING THE APPLICANT TO SPEND MORE THAN 10 % OF HIS TIME ON WORK FOR THE INTERNATIONAL ATOMIC ENERGY AGENCY
37 THE APPLICANT COMPLAINS THAT THE ADMINISTRATION ONLY AUTHORIZED HIM TO SPEND A SMALL PROPORTION OF HIS WORKING TIME ON THE STUDIES BEING CARRIED OUT WITHIN THE CONTEXT OF THE INTERNATIONAL ATOMIC ENERGY AGENCY BECAUSE HE CONSIDERS THAT THIS DECISION HINDERS THE DEVELOPMENT OF HIS CAREER AND THAT ARTICLE 24 OF THE STAFF REGULATIONS HAS THUS BEEN INFRINGED .
38 THE ADMINISTRATION IS ALONE RESPONSIBLE FOR THE ORGANIZATION OF THE SERVICES WHICH IT MUST BE ABLE TO FIX AND ALTER ON THE BASIS OF ITS TASKS .
39 THE APPLICANT ' S CONTRIBUTION TO THE WORK OF THE GROUP SET UP BY THE INTERNATIONAL ATOMIC ENERGY AGENCY HAD TO BE JUDGED ON THE BASIS OF THE COMPATIBILITY OF THAT EXTERNAL COLLABORATION WITH THE SCIENTIFIC OBJECTIVES OF THAT GROUP AND THE DUTIES WHICH HE WAS CALLED UPON TO PERFORM AT ISPRA .
40 THUS , TAKING INTO CONSIDERATION THE FACT THAT THE RESEARCH CARRIED OUT BY THE INTERNATIONAL ATOMIC ENERGY AGENCY IN THE FIELD OF THERMAL BREEDER REACTORS WAS NOT AT THAT TIME BEING PURSUED WITHIN THE EUROPEAN ATOMIC ENERGY COMMUNITY , THE DIRECTOR-GENERAL FOR RESEARCH , SCIENCE AND EDUCATION CORRECTLY CONSIDERED THAT THE APPLICANT ' S PARTICIPATION IN THAT WORK COULD ONLY BE INCIDENTAL .
41 THIS DECISION WAS TAKEN REGULARLY WITHIN THE LIMITS OF THE POWERS OF THE ADMINISTRATION WHICH WERE EXERCISED IN WHAT THAT ADMINISTRATION CONSIDERED WAS THE INTERESTS OF THE SERVICE AND WITHOUT IN ANY WAY AFFECTING ADVERSELY THE RIGHTS OF THE APPLICANT LAID DOWN IN THE STAFF REGULATIONS .
42 THIS SUBMISSION MUST THEREFORE BE REJECTED .
III - THE PERIODIC REPORTS
43 ARTICLE 43 OF THE STAFF REGULATIONS PROVIDES THAT A PERIODIC REPORT ON THE ABILITY , EFFICIENCY AND CONDUCT IN THE SERVICE OF EACH OFFICIAL MUST BE DRAWN UP AT LEAST EVERY TWO YEARS .
44 THIS DOCUMENT MUST COMPULSORILY BE DRAWN UP FOR THE GOOD ADMINISTRATION AND THE RATIONALIZATION OF THE SERVICES OF THE COMMUNITY AND IN ORDER TO SAFEGUARD THE INTERESTS OF OFFICIALS . IT CONSTITUTES AN INDISPENSABLE CRITERION OF ASSESSMENT EACH TIME THE OFFICIAL ' S CAREER IS TAKEN INTO CONSIDERATION BY THE ADMINISTRATION .
45 ONE OF THE BOUNDEN DUTIES OF THE ADMINISTRATION IS THEREFORE TO ENSURE THAT THAT REPORT IS DRAWN UP PERIODICALLY ON THE DATES LAID DOWN BY THE STAFF REGULATIONS AND THAT IT IS DRAWN UP IN PROPER FORM .
46 THE FILE SHOWS THAT THE COMPETENT AUTHORITY FAILED TO FULFIL ITS OBLIGATIONS BY DRAWING UP A REPORT IN 1969 THE REGULARITY OF WHICH IS CONTESTABLE IN SO FAR AS IT GIVES AN APPRAISAL , WITHOUT DETAILS , OF THE ABILITY , EFFICIENCY AND CONDUCT IN THE SERVICE OF THE APPLICANT AND BY OMITTING TO DRAW UP THE PERIODIC REPORTS CONCERNING HIM IN 1971 , 1973 AND 1975 .
47 THE COMMISSION HAS BEEN IN BREACH OF THE STAFF REGULATIONS OF OFFICIALS AND IT WILL BE VERY DIFFICULT AND DOUBTLESS IMPOSSIBLE IN VIEW OF THE TIME WHICH HAS ELAPSED AND THE DISPERSAL OR DEPARTURE OF THE AUTHORITIES WHO DRAW UP THE REPORTS TO FILL OBJECTIVELY THE LACUNAE IN THE APPLICANT ' S PERSONAL FILE .
48 ALTHOUGH THE APPLICANT CANNOT PROVE THAT HE HAS SUFFERED MATERIAL DAMAGE , IT IS NOT IN DISPUTE THAT HE SUFFERS NON-MATERIAL DAMAGE RESULTING FROM THE FACT THAT HE POSSESSES A PERSONAL FILE WHICH IS IRREGULAR AND INCOMPLETE , WHEN THE COMPULSORY PERIODIC REPORT IS A GUARANTEE TO AN OFFICIAL FOR THE REGULAR PROGRESS OF HIS CAREER .
49 THIS ABSENCE OF PERIODIC REPORTS OWING ONLY TO THE INSTITUTION PUT HIM IN AN UNCERTAIN AND ANXIOUS STATE OF MIND WITH REGARD TO HIS PROFESSIONAL FUTURE .
50 THE COURT CONSIDERS THAT IT MUST FIX THE AMOUNT OF THAT DAMAGE AT FB 10 000 .
COSTS
51 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
52 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE INSTITUTIONS SHALL BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT AGAINST THEM BY SERVANTS OF THE COMMUNITIES .
53 SINCE THE APPLICANT HAS ONLY BEEN UNSUCCESSFUL IN TWO SUBMISSIONS AND SINCE HE HAS BEEN PARTIALLY SUCCESSFUL IN HIS CONCLUSIONS IN THE THIRD , IT IS NECESSARY TO ORDER THE COMMISSION TO BEAR ONE THIRD OF HIS COSTS .
ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AGAINST THE TRANSFER DECISION OF 10 DECEMBER 1975 ;
2 . DISMISSES THE APPLICATION AGAINST THE DECISION PROHIBITING THE APPLICANT FROM SPENDING MORE THAN 10 % OF HIS TIME ON WORK FOR THE INTERNATIONAL ATOMIC ENERGY AGENCY ;
3 . ORDERS THE COMMISSION TO PAY THE APPLICANT FB 10 000 AS DAMAGES FOR FAILURE TO DRAW UP PERIODIC REPORTS ;
4 . ORDERS THE COMMISSION TO BEAR ITS OWN COSTS AND TO PAY ONE-THIRD OF THE APPLICANT ' S COSTS ;
5 . ORDERS THE APPLICANT TO BEAR TWO-THIRDS OF HIS OWN COSTS .
