IR v Commission (Civil service - Secondment in the interests of the service - Judgment) [2020] EUECJ T-131/20 (02 September 2020)

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(Civil service – Officials – Rights and obligations of officials – Secondment in the interests of the service – Article 37, first paragraph, heading (a), first indent, of the Staff Regulations – Article 38 of the Staff Regulations – Refusal to extend a secondment – Duty to have regard for the welfare of officials – Rights of the defence)

European Commission, represented by T. Bohr and I. Melo Sampaio, acting as Agents,

APPLICATION under Article 270 TFEU seeking annulment, first, of the decision of the Commission of 2 July 2019 rejecting the request of the European Centre for the Development of Vocational Training (Cedefop) that the applicant’s secondment within its services should be extended for an additional year and, second, of the decision of 23 January 2020 rejecting the applicant’s complaint brought against the decision of 2 July 2019,

composed of H. Kanninen (Rapporteur), President, O. Porchia and M. Stancu, Judges,

1 The applicant, IR, has been an official of the European Commission since April 2003. He is assigned to the Directorate-General (DG) ‘Employment, Social Affairs and Inclusion’ located in Brussels (Belgium).

2 The applicant has been a widower since 2012 and himself raises his only son, who was 14 years old on the day on which the present action was brought. The applicant’s son has been affected by [confidential] (1) since birth. In 2014, a Greek health institution established that the child had a total disability rate of [confidential]%. The seriousness of the child’s illness has been recognised by the Joint Sickness Insurance Scheme of the Institutions of the European Communities (JSIS) in 2013 and in 2015.

3 From September 2011, the applicant’s son was educated in a school in Brussels. It is apparent from a certificate issued in June 2014 by that school [confidential] that it was better that he be educated in a Greek school and environment with specialised support.

4 The applicant enrolled his son in a school in Thessaloniki (Greece) in September 2014. From that date until September 2016, the applicant’s son lived in Thessaloniki in the care of a third person. Between 2014 and 2016, the applicant was allowed to carry out 25% of his work teleworking from Greece.

5 By decision of 27 July 2016, the applicant was granted a secondment in the interests of the service, pursuant to Article 37, first paragraph, heading (a), first indent, of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) at the European Centre for the Development of Vocational Training (Cedefop), located in Thessaloniki. According to that decision, the secondment was to start on 16 September 2016 and to end on 15 September 2017.

6 That secondment was extended, the first time until 15 September 2018, by decision of 26 July 2017, and then a second time until 15 September 2019, by decision of 2 August 2018.

7 By email of 2 July 2019, Cedefop requested DG ‘Employment, Social Affairs and Inclusion’ to extend the applicant’s secondment in the interests of the service beyond 15 September 2019 for one additional year, on the ground that the applicant’s knowledge was useful for the performance of certain administrative and operational tasks (‘Cedefop’s request of 2 July 2019’).

8 By email of 2 July 2019, in which the applicant was included in copy, DG ‘Employment, Social Affairs and Inclusion’ replied negatively to that request on the ground that ‘[DG “Human Resources and Security” had] already announced to everybody at the moment of the renewal last year that there would be no further renewal’ (‘the decision of 2 July 2019’).

9 In the same email, DG ‘Employment, Social Affairs and Inclusion’ requested Cedefop to confirm that it had no post on its budget to allow recruitment of the applicant and stated that, as appropriate, the latter would be reintegrated in the DG from 16 September 2019. By email of 3 July 2019, Cedefop confirmed that it had no post on its budget to allow the applicant’s recruitment.

10 Following the decision of 2 July 2019, it was suggested to the applicant, inter alia, that he take leave in the interests of the service, in the circumstances set out in Article 42c of the Staff Regulations, until his retirement, which would give rise to a payment of compensation. The applicant also took steps concerning his reintegration in DG ‘Employment, Social Affairs and Inclusion’.

11 At the beginning of September 2019, the applicant requested to take family leave for medical reasons, pursuant to Article 42b of the Staff Regulations, for one month starting on 1 October 2019. He was granted that leave.

12 On 26 September 2019, the applicant submitted a complaint under the conditions provided for by Article 90(2) of the Staff Regulations, for the purpose of challenging the decision of 2 July 2019 (‘the complaint of 26 September 2019’).

13 By email of 10 October 2019, the applicant requested an extension of his family leave until 31 December 2019. He justified that request by the fact that his resettlement with his son in Brussels had turned out to be more complicated than expected, since that change in environment required psychological support so as not to impair the child’s development. That extension was granted.

14 On 23 January 2020, the appointing authority rejected the complaint of 26 September 2019 (‘the 23 January 2020 rejection of the complaint’).

15 By letter of 28 February 2020, the applicant refused the Commission’s proposal to grant him leave in the interests of the service under Article 42c of the Staff Regulations.

16 The applicant also introduced other requests to extend his family leave, in the light of the 23 January 2020 rejection of the complaint, on the ground that it was better for his son’s well-being that he should not change schools during the course of the school year. His leave was extended until 30 June 2020.

17 By application lodged at the Court Registry on 27 February 2020, the applicant brought the present action.

18 By separate document lodged at the Court Registry on the same day, the applicant requested that the present action be dealt with under an expedited procedure in accordance with Article 152 of the Rules of Procedure of the General Court. On 16 March 2020, the Commission lodged its observations regarding that request. By decision of 25 March 2020, the Court granted the application for an expedited procedure.

19 By letter lodged at the Court Registry on 17 March 2020, the applicant applied for anonymity in accordance with Article 66 of the Rules of Procedure. The Court granted that application.

20 On 22 April 2020, due to the health crisis linked to the COVID-19 pandemic, the Court, in the light of Article 155(1) of the Rules of Procedure, requested the parties to state whether they were prepared to waive participation in a hearing, explaining that, if the answers were in the affirmative, it would approve, under the conditions set out in Article 154(3) of those rules, the lodging of a reply and a rejoinder. The parties stated that they were prepared to waive participation in a hearing.

21 On 8 May 2020, by way of the measures of organisation of procedure provided for in Article 89(3) of the Rules of Procedure, the Court requested the applicant to lodge a reply and to answer a number of questions. The applicant complied with those requests within the prescribed time limit.

22 On 27 May 2020, by way of the measures of organisation of procedure provided for in Article 89(3) of the Rules of Procedure, the Court requested the Commission to lodge a rejoinder and to answer a number of questions. The Commission complied with those requests within the prescribed time limit.

– annul the decision of 2 July 2019 and the 23 January 2020 rejection of the complaint;

25 Under Article 155(1) of the Rules of Procedure, where the Court has approved an expedited procedure, it may decide to rule without an oral part of the procedure where the main parties decide not to participate in a hearing and the Court considers that it has sufficient information available to it from the material in the file in the case.

26 In the present case, since the main parties have decided not to participate in a hearing, the Court, considering that it has sufficient information available to it from the documents in the file, decides to give its ruling without opening the oral part of the procedure.

27 The applicant raises four pleas in law in support of his action. The first plea is raised in support of the request for annulment of the 23 January 2020 rejection of the complaint. The second, third and fourth pleas are raised in support of the request for annulment of the decision of 2 July 2019 and of the 23 January 2020 rejection of the complaint.

28 The Court considers it appropriate to examine first of all the second, third and fourth pleas, seeking annulment of the decision of 2 July 2019 and of the 23 January 2020 rejection of the complaint.

29 For the purposes of examining the second, third and fourth pleas, it should be recalled from the outset that the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the EU Courts, except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the EU Courts, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34 and the case-law cited).

30 Moreover, the statement of reasons for a decision rejecting a complaint is deemed to supplement the statement of reasons for the decision against which the complaint was directed (see judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraph 55 and the case-law cited).

31 In the present case, first, it should be noted that the 23 January 2020 rejection of the complaint confirms the decision of 2 July 2019 and does not differ in scope from that of that decision. In that regard, it should also be observed that the appointing authority states, in the 23 January 2020 rejection of the complaint, that its review is limited to manifest error of assessment and misuse of powers.

32 Second, whereas the decision of 2 July 2019 concerns the refusal to renew the applicant’s secondment to Cedefop solely on the ground that it had already been announced to everybody at the moment of the renewal the previous year that there would be no further renewal, the 23 January 2020 rejection of the complaint expands those grounds, by referring to certain facts of the case, and by referring to the rules in the Staff Regulations concerning secondment, the interests of the service and the administration’s duty to have regard for the welfare of its officials.

33 Consequently, with regard to the examination of the second, third and fourth pleas, the action must be understood as being directed against the decision of 2 July 2019, the legality of which will be examined taking into account the grounds of the 23 January 2020 rejection of the complaint, in accordance with the case-law cited in paragraph 29 above.

34 In support of his action directed against the decision of 2 July 2019, the applicant raises three pleas. The second plea is divided into two parts, alleging, first, infringement of Article 38 of the Staff Regulations and, second, breach of the right to be heard enshrined in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’) as well as in Article 38(a) of the Staff Regulations. The third plea is also divided into two parts, alleging, first, breach of the duty to have regard for the welfare of officials and failure to have regard to the principle of sound administration and, second, breach of the duty to state reasons. The fourth plea alleges infringement of the right of protection of the family enshrined in Article 33(1) of the Charter.

35 The Court considers it appropriate, in the present case, to examine first of all the second part of the third plea concerning breach of the duty to state reasons.

36 In addition, the first part of the second plea and the first part of the third plea overlap to a large extent, in so far as the applicant, in essence, claims that the Commission failed to have regard to Article 38 of the Staff Regulations, the duty to have regard for the welfare of officials and the principle of sound administration by adopting the decision of 2 July 2019 without having regard for the interests of the service and without taking into account his own interests in the light of his situation, that is to say, the fact that he is the sole parent of a child suffering from serious health problems. Those pleas must therefore be examined together.

– The second part of the third plea, alleging breach of the duty to state reasons

37 In the context of the second part of his third plea, the applicant, expressing the view that the duty to state reasons is further reinforced where the administration has a wide discretion, maintains that neither the decision of 2 July 2019 nor the 23 January 2020 rejection of the complaint provided reasons which are at least sufficient to justify the refusal to extend his secondment, in particular as regards the balancing of the interests of the service and of his own interests and those of his family. Furthermore, the circumstances in which those decisions were adopted did not allow him to understand the underlying reasons.

38 The applicant adds that the reasons for the 23 January 2020 rejection of the complaint are contradictory, since it follows, on the one hand, that the administration tried to find an appropriate alternative solution to a renewal of the secondment and, on the other, that the decision of 2 July 2019 was adopted pursuant to a binding note according to which the secondment would last no more than three years. Moreover, claims that an alternative solution was proposed are not substantiated.

40 According to settled case-law, the statement of reasons must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court to exercise its jurisdiction to review legality (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147 and the case-law cited).

41 Moreover, the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 146).

42 In the present case, the applicant maintains that neither the decision of 2 July 2019 nor the 23 January 2020 rejection of the complaint provided reasons, at the very least sufficient reasons, to justify the refusal to renew his secondment.

43 In that regard, first of all, it must be observed that, in the decision of 2 July 2019, the Commission decided to refuse to extend the applicant’s secondment beyond 15 September 2019 on the ground that ‘[DG “Human Resources and Security” had] already announced to everybody at the moment of the renewal last year that there would be no further renewal’.

44 Next, in the 23 January 2020 rejection of the complaint, the appointing authority expressed the view that officials of the European Union had in principle no right to a renewal of their secondment, since it was conditional upon the interests of the service, and that the administration had a wide discretion in that regard. The appointing authority also referred to internal notes sent by DG ‘Human Resources and Security’ to DG ‘Employment, Social Affairs and Inclusion’ stating that the duration of secondment would not exceed three years, as well as internal notes concerning the last renewal of the applicant’s secondment stating that no further extensions would be granted. It also refers to contacts between DG ‘Employment, Social Affairs and Inclusion’ and the applicant, whereby the latter was informed that his secondment would not be extended beyond 15 September 2019.

45 As regards the applicant’s situation, the appointing authority found that the secondment had been approved for three years in order to enable the applicant to live with his son in Thessaloniki and to find a solution in the meantime. Next, as regards the duty to have regard for the welfare of officials, the appointing authority found, first, that the administration had taken measures to have regard for the difficulties encountered by the applicant, but that he had not followed the advice suggesting that he find an alternative solution enabling him to remain in Greece and, second, that DG ‘Human Resources and Security’ had stated clearly from the outset that the applicant’s secondment could not be renewed beyond three years.

46 Having regard to the foregoing, the reasons why the Commission took the view that Cedefop’s request of 2 July 2019 should be rejected are disclosed in a clear and unequivocal fashion. Moreover, it is evident from the application that the applicant understood those reasons and was in a position to criticise effectively the substance of those reasons in his action.

47 In addition, the reason that the Commission limited the duration of secondment to three years does not appear to be at variance with the reason according to which the administration made efforts to find an appropriate solution. Taken together, those reasons show that, for the Commission, the obligations flowing from the duty to have regard for the welfare of officials were complied with, since it authorised the applicant’s secondment for three years and it invited the applicant to find a stable position in the region of Thessaloniki.

48 The question of whether the applicant was in fact aware of the limitation of the secondment to three years referred to by the Commission, or whether the grounds relied on by the Commission justify refusal of the renewal of his secondment for a third year in the light of the balancing of the interests of the service and of his own interests and those of his family, is not covered by the adequacy of the grounds but by reviewing the merits of those grounds in law and in fact.

– The first part of the second plea and the first part of the third plea, alleging infringement of Article 38 of the Staff Regulations, alleging breach of the duty to have regard for the welfare of officials and failure to have regard to the principle of sound administration

50 In the context of the first part of the second plea, the applicant submits that the decision of 2 July 2019 was taken on the sole ground that, one year earlier, DG ‘Human Resources and Security’ had adopted an ‘instruction’ without any legal basis, according to which his secondment would not be extended beyond 15 September 2019. Limiting itself to application of that instruction, without examining the applicant’s particular case, the Commission, it is submitted, infringed Article 38 of the Staff Regulations by not making use of its discretion in the light of the interests of the service and of all the relevant circumstances.

51 In the context of the first part of the third plea, the applicant maintains that the appropriateness of renewing a secondment must be assessed in accordance with the duty to have regard for the welfare of officials, which requires a balancing of the interests of the service and the interests of officials. However, in the present case, he submits, the Commission prejudged that an extension of the duration of the secondment could not be granted, as demonstrated by the fact that the decision was adopted within a very brief period of time. By failing to have regard to the principle of sound administration, it also neglected to examine the circumstances of the case such as they existed at the time when the request for renewal was examined, in particular the state of health of the applicant’s son.

52 The Commission submits, in response to the first part of the second plea, that it is clear from Article 37, first paragraph, heading (a), first indent, of the Staff Regulations that a secondment is by its very nature temporary. It relies on an internal note dated 12 July 2016 which states that the secondment was intended to enable the applicant to fulfil his family obligations and maintains that this was a temporary solution enabling the applicant to reside in Thessaloniki while seeking permanent employment in the region.

53 In addition, the Commission states that it had stipulated, when the secondment was approved, that it would last for a maximum of three years. That duration represented, in its view, a fair balance between the interests of the applicant and those of the administration, in so far as it gave the applicant sufficient time to find a permanent solution allowing him to remain in Greece, while at the same time limiting the period of time during which the Commission would be deprived of one of its staff members and would receive only a partial financial compensation from Cedefop.

54 In response to the first part of the third plea, the Commission maintains that it fulfilled its duty to have regard for the welfare of officials. First of all, it was actively seeking a way to allow the applicant to live with his son, which led to the authorisation of the secondment to Cedefop. Furthermore, the Commission maintained contact with the applicant prior to the end of the three-year-period of secondment, in particular so that he could find a new permanent position, it being pointed out, however, that under Article 7(1) of the Staff Regulations the duty to have regard for the welfare of officials did not require the administration to employ the applicant in such a position in the region of Thessaloniki. Subsequent to the decision of 2 July 2019, it proposed to the applicant that he carry out 50% of his duties by teleworking, or that he accept leave in the interests of the service.

55 Further extensions of the secondment on the ground of the applicant’s family situation would, the Commission argues, lead to his permanent secondment until his retirement age, which would be contrary to Article 37 of the Staff Regulations and would upset the balance of the reciprocal rights and obligations of the administration and of staff members.

56 The Commission also disputes that the applicant has established to the required standard that his presence near his son or schooling in a Greek environment are necessary for the child’s development.

57 In his reply, the applicant adds that he submitted documents establishing to the required standard that his son’s state of health could justify a renewal of his secondment beyond 15 September 2019. He also claims that he has taken steps to be employed in some positions in the Commission in the region of Thessaloniki and that, in any event, failure to exercise due care in that regard does not exempt the administration from compliance with the duty to have regard for the welfare of officials.

58 In its rejoinder, first, the Commission adds that the applicant has not established that, at the time when Cedefop’s request of 2 July 2019 was being examined, he had drawn the administration’s attention to evidence establishing that his situation had undergone substantial changes. In particular, the applicant did not bring to the administration’s attention medical certificates submitted before the Court, the majority of which, moreover, are subsequent to the decision of 2 July 2019.

59 Second, the Commission submits that the probative value of the medical certificates submitted by the applicant is limited, since they were drawn up at the applicant’s request and for the sole purpose of the dispute, and maintains that the Staff Regulations lay down no specific rules as to how the administration can assess or contradict such documents. Furthermore, following the adoption of the decision of 2 July 2019, the applicant indicated in email exchanges with the Commission that he intended to school his son in Brussels, which provides evidence that he was not as certain of the absolute need for his physical presence in Greece or for his son’s schooling in that country, as he claims before the Court.

60 It follows from Article 37, first paragraph, heading (a), first indent, of the Staff Regulations that an official on secondment is, inter alia, an established official who, by decision of the appointing authority, has been directed in the interests of the service to serve temporarily in a post outside his institution.

61 Secondment pursuant to Article 37, first paragraph, heading (a), of the Staff Regulations is to be governed by the rules set out in Article 38 of the Staff Regulations. Pursuant to Article 38(a) of the Staff Regulations, the decision on secondment in the interests of the service is to be taken by the appointing authority. In addition, it is clear from Article 38(b) of the Staff Regulations that the duration of secondment in the interests of the service is to be determined by the appointing authority.

62 It is apparent from the case-law that Article 38(b) of the Staff Regulations must be interpreted in the light of the fact that ‘the interests of the service’ form part of the very essence of secondment provided for in heading (a) of the first paragraph of Article 37 of the Staff Regulations and, accordingly, constitute an essential condition of its continuation (judgment of 8 December 2005, Reynolds v Parliament, T‑237/00, EU:T:2005:437, paragraph 65).

63 In view of that case-law, it must be held that Article 38(b) of the Staff Regulations must be interpreted as meaning that it is in the light of the interests of the service that the appointing authority must not only determine the initial period of a secondment based on Article 37, first paragraph, heading (a), of the Staff Regulations, but must also decide, as the case may be, whether to extend that secondment beyond the initial period envisaged.

64 In addition, since the interests of the service are likely to evolve with time, they must be assessed in the light of the circumstances existing at the time when the appointing authority adopts a decision concerning the extension of a secondment.

65 Moreover, it is clear from settled case-law that the appointing authority must comply with the duty to have regard for the welfare of officials and with the principle of sound administration, which have as a particular consequence that, when the authority takes a decision concerning the situation of a member of staff, it should take into consideration all the factors which may affect its decision and that, when doing so, it should take into account not only the interests of the service but also those of the official concerned (see judgment of 7 November 2019, WN v Parliament, T‑431/18, EU:T:2019:781, not published, paragraph 105 and the case-law cited).

66 It should also be noted that, since the institutions enjoy a broad discretion to organise their departments according to the tasks entrusted to them and to assign the staff available to them in the light of those tasks, judicial review is limited to the issue of whether there has been a manifest error or a misuse of powers (see, to that effect, judgments of 8 September 2009, ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 162, and of 10 October 2014, EMA v BU, T‑444/13 P, EU:T:2014:865, paragraph 28).

67 In the present case, the applicant is correct in asserting that, when it examined Cedefop’s request of 2 July 2019, the Commission applied Article 38(b) of the Staff Regulations without carrying out a balancing of the interests of the service and of the applicant’s interests in the light of the relevant circumstances at the time when it took its decision.

68 In the first place, it must be noted that, in the decision of 2 July 2019, the refusal to renew the secondment was justified solely on the ground that ‘[DG “Human Resources and Security” had] already announced to everybody at the moment of the renewal last year that there would be no further renewal’. That decision therefore makes no reference to, inter alia, the applicant’s family situation existing on the day of its adoption.

69 In the second place, as regards the 23 January 2020 rejection of the complaint, first, it is apparent that the appointing authority found, in that rejection, that officials of the European Union generally had no right to a renewal of their secondment, since this was conditional on the interests of the service, for the examination of which the administration has a wide discretion. In that regard, the appointing authority held that it had been stated, in a number of internal notes sent by DG ‘Human Resources and Security’ to DG ‘Employment, Social Affairs and Inclusion’, one of which was dated 12 June 2018, that the duration of the applicant’s secondment would not exceed three years.

70 Before the Court, the Commission submitted two notes of DG ‘Human Resources and Security’, drawn up in the light of requests of DG ‘Employment, Social Affairs and Inclusion’ dated 12 July 2016 and 23 June 2017, stating that the applicant’s secondment could not be extended beyond three years. Another note of DG ‘Human Resources and Security’ dated 26 July 2018, concerning the second extension of the secondment, stated that an additional extension would not be possible and that the decision concerning the secondment would be notified to the applicant.

71 However, on the assumption that the notes mentioned in paragraph 70 above are those referred to in the 23 January 2020 rejection of the complaint, it should be noted that these are preparatory documents relating to the initial decision on the applicant’s secondment or to the decisions renewing it and that it is apparent that the limitation of the duration of the secondment to three years is the result of an assessment carried out by the administration at the time when it adopted the initial secondment decision.

72 While it was possible for the administration to thus define a time limit for a secondment pursuant to Article 38(b) of the Staff Regulations, the appointing authority could not, however, in the light of its duty to have regard for the welfare of officials and the principle of sound administration, base itself on an assessment carried out at the time when the initial secondment decision was taken in order to release itself from the obligation to carry out a new analysis of the relevant circumstances as they existed on the day on which Cedefop’s request of 2 July 2019 was examined.

73 Second, as regards the applicant’s situation, the appointing authority limited itself to stating, in the 23 January 2020 rejection of the complaint, in respect of the duty to have regard for the welfare of officials, that the secondment had been authorised for the purpose of enabling the applicant to live with his son in Thessaloniki, that the administration had taken measures to take into account the difficulties encountered by the applicant but that he had not followed the advice suggesting that he find an alternative solution which would allow him to remain in Greece.

74 In so doing, the appointing authority failed to take into account the particular circumstances concerning the applicant’s situation as they existed at the time when it adopted its decision. Thus, the 23 January 2020 rejection of the complaint contains no examination of the evidence on which the applicant relied in the complaint of 26 September 2019, which is substantiated, in particular, by a medical certificate of 19 September 2019 which indicates that his son’s state of health required a stable family, school and social environment and that a possible return to Belgium would adversely affect that child’s learning and development as well as his mental health.

75 As regards the Commission’s arguments challenging the probative value of that document, first, it should be noted that the applicant was perfectly entitled to have a medical certificate drawn up in order to support the arguments of the complaint of 26 September 2019 alleging a duty of care, since those arguments concerned in particular the health of his son. Second, it is clear from the case-law that the prevailing principle of EU law is the principle of the unfettered evaluation of evidence (see, to that effect, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 49 and the case-law cited). However, in the present case, aside from criticism concerning the date on which the medical certificate of 19 September 2019 was drawn up, the Commission submitted no other evidence which could lead the Court to doubt the credibility of that document.

76 The foregoing findings are borne out by the fact that the appointing authority, in the conclusion of the 23 January 2020 rejection of the complaint, maintained that the applicant had not presented arguments capable of rendering the assessments contained in the decision of 2 July 2019 implausible. Since that decision does not contain any reference to the applicant’s situation, this demonstrates that the appointing authority, which, moreover, stated that it had to limit its review to ascertaining that there had been no manifest error of assessment or misuse of powers, did not carry out a proper review in the present case.

77 It follows from the foregoing that, in order to refuse renewal of the applicant’s secondment for an additional year, the Commission merely referred to a time limit for the secondment adopted at the time of its initial approval, without carrying out, for the purposes of balancing the interests of the service and those of the official concerned, an examination of all the elements existing at the time when it examined Cedefop’s request of 2 July 2019. In so doing, the Commission failed in its obligation to take into consideration, in the application of Article 38(b) of the Staff Regulations, the duty to have regard for the welfare of officials and the principle of sound administration.

78 In the third place, the other arguments raised by the Commission before the Court are ineffective or lack a legal basis.

79 First of all, before the Court, the Commission refers to the financial consequences of the applicant’s secondment, linked to the fact that DG ‘Employment, Social Affairs and Inclusion’ received only a partial compensation from Cedefop in respect of the provision of one of its officials. It also relies on the benefit that the applicant’s original department would draw, in the event of his return, from the professional experience acquired as a result of the secondment. However, it must be observed that those factors are not included in the reasoning of the decision of 2 July 2019, or in the reasoning of the 23 January 2020 rejection of the complaint, as considerations justifying the limitation of the secondment to three years in the interests of the service. This is therefore an attempt to provide a belated statement of reasons for the decision being contested before the Court (see, to that effect, judgment of 24 September 2015, Rintisch v OHIM – Compagnie laitière européenne (PROTICURD), T‑382/14, not published, EU:T:2015:686, paragraph 62).

80 The same is true in regard to the arguments alleging that the applicant refused a proposal that he take leave in the interests of the service under Article 42c of the Staff Regulations, since that fact was not referred to in the decision of 2 July 2019 or in the 23 January 2020 rejection of the complaint.

81 Next, the Commission contends, both in the 23 January 2020 rejection of the complaint and in its defence, that DG ‘Employment, Social Affairs and Inclusion’ had had contacts with the applicant in which it had been suggested to the applicant that he seek a permanent position in Cedefop or, failing that, in the Commission’s official representations in Athens (Greece) or Skopje (North Macedonia), since he had to demonstrate that he was making some effort if he intended to remain in the region, and that the applicant had not taken sufficient steps in that respect. However, even if that failure to show diligence were established, notwithstanding the applicant’s denials, and there was a link with the balancing of the interests of the service and the interests of the official in the context of examining Cedefop’s request of 2 July 2019 that the secondment be extended, it could not exempt the administration from taking into account the state of health of the applicant’s son at the time when that request was examined.

82 The Commission also contends that it is clear from Article 37, first paragraph, heading (a), first indent, of the Staff Regulations that a secondment is temporary, which precludes the claims of the applicant, who sought to have his secondment at Cedefop extended until his retirement age.

83 In that regard, first, while it is clear from Article 37, first paragraph, heading (a), first indent, of the Staff Regulations that a secondment in the interests of the service is an inherently provisional position, it is also apparent that, under Article 38(b) of those regulations, no time limit is provided for in respect of such a secondment, with the result that those provisions did not in themselves preclude a favourable response to Cedefop’s request of 2 July 2019 that the applicant’s secondment be renewed beyond 15 September 2019 for an additional year. Second, it does not appear from any of the material in the file that the applicant sought to have the secondment renewed until the time of his retirement.

84 Lastly, the Commission considers that, even if the contested decision were to be annulled, that does not, however, mean that the applicant’s secondment would be automatically renewed.

85 In this respect, suffice it to note that the Commission’s arguments consist of mere speculation as to the implementation of an annulling judgment. An annulment would, however, require the Commission to review the applicant’s request for secondment to Cedefop by taking into consideration the grounds of the annulling judgment.

86 In the light of the foregoing considerations, the first part of the second plea and the first part of the third plea must be upheld.

– The second part of the second plea, alleging breach of the right to be heard

87 In the context of the second part of the second plea, the applicant submits that the decision of 2 July 2019 was adopted in breach of the right to be heard. He relies on Article 41(2)(a) of the Charter and on Article 38(a) of the Staff Regulations. The applicant claims that, since the request for renewal of his secondment was made by Cedefop, he did not himself have the opportunity to make his views known at that stage of the procedure and that, following that request, he was not given a hearing before the Commission adopted the decision of 2 July 2019.

88 First of all, the Commission maintains that, since all parties were aware from the beginning that the secondment would be limited to three years, it was not necessary to hear the applicant before adopting the contested decision, the latter being a mere formalisation of a previous agreement. Next, it submits that neither Article 37 nor Article 38 of the Staff Regulations imposes the obligation to hear an official before the adoption of a decision which ends a secondment or refuses its renewal in the interests of the service.

89 In the alternative, the Commission maintains that, even if the applicant had the right to be heard before the decision concerning the renewal of his secondment was taken, he had the opportunity, in the present case, to make known his views. The applicant had contacted a member of staff of DG ‘Employment, Social Affairs and Inclusion’ by telephone several times in March and then in May 2019, on which occasions he did not mention the difficulties related to his son’s state of health. In those circumstances, the applicant’s reference to the judgment of 8 December 2005, Reynolds v Parliament (T‑237/00, EU:T:2005:437), is not relevant, since, in the case which gave rise to that judgment, not only was a decision in issue which ended a secondment early, but it was not clear that the official concerned could have had information to that effect. The Commission adds that, following the adoption of the decision of 2 July 2019, the applicant stated that he would be making arrangements for his relocation to Brussels, which indicates that he considered that his views had been duly taken into account.

90 In the further alternative, the Commission submits that, in any event, the applicant merely claims in his application that his right to be heard was breached, without stating how the observations that he could have submitted were likely to have a bearing on the decision of 2 July 2019. Moreover, the Commission took into account all the relevant information available to it, in the light of the consequences, in particular the financial consequences, of the secondment for the applicant’s original department. In addition, the Commission contends that the medical certificates submitted by the applicant post-date the adoption of the decision of 2 July 2019, with the exception of the certificate referring to surgery. Furthermore, a number of emails addressed by the applicant to the administration show that the difficulties encountered by his son because of his move to Brussels, and which justified the request for family leave, did not become apparent until after July 2019.

91 In his reply, first of all, the applicant states that he was never informed by the Commission, either in writing or orally, that it had been definitively established that his secondment would not last for more than three years. He does, however, acknowledge that he was informed orally that, in principle, his secondment would be limited to three years. In addition, he also questions the probative value of a document submitted by the Commission intended to describe the exchanges which he had with DG ‘Employment, Social Affairs and Inclusion’, on the ground that that document is neither dated nor signed and that he was not given the opportunity to comment on it before bringing the action. In any event, he submits, it is apparent from that document that it had been indicated to him that his secondment was ‘likely’ to end in September 2019, with the result that he could reasonably hope that a further renewal would remain a possibility.

92 Next, as regards the applicability of the right to be heard, the applicant submits that, under Article 38 of the Staff Regulations, there is no difference between an initial secondment decision and a decision renewing a secondment.

93 Finally, the applicant observes that, in the present case, the request for renewal of the secondment was made by Cedefop on 2 July 2019. The Commission rejected that request on the same day as that on which it was made. However, the request for his secondment to be extended might have been accepted if it had been examined in the light of the specific circumstances that he could have claimed, taking into account the administration’s duty to have regard for the welfare of officials. The applicant adds that, even though the administration had initially considered that the total duration of the secondment would not exceed three years, it was obliged to examine the particular circumstances in which he found himself, before defining the interests of the service as they were in July 2019.

94 In addition, the applicant disputes the Commission’s argument that compliance with the right to be heard does not imply that a formal hearing must take place and that it suffices that the official concerned is in a position to make known his or her views.

95 In its rejoinder, the Commission produces a solemn declaration by the official who authored the document setting out the exchanges that the applicant had with DG ‘Employment, Social Affairs and Inclusion’ attesting that that document had been drawn up after the application had been lodged and that it sets out correctly the content of those exchanges. The Commission adds that the applicant’s statements concerning his knowledge of the fact that his secondment would be limited to three years are contradictory. It relies, in addition, on a number of email exchanges which, in its view, demonstrate that knowledge.

96 As regards the fact that the decision of 2 July 2019 was adopted in response to a request of Cedefop of the same day, the Commission states that, due to the limitation of the secondment to three years, which was a matter of general knowledge, Cedefop was not supposed to request a renewal of the secondment.

97 For the purposes of examining the second part of the second plea, in the first place, it must be established whether the applicant was entitled to be heard prior to the adoption of the decision of 2 July 2019.

98 It must be observed that, pursuant to Article 38(a) of the Staff Regulations, the decision on secondment in the interests of the service is to be taken by the appointing authority after hearing the official concerned. That provision therefore does not expressly address the question of whether the official concerned has the right to be heard in the case where the appointing authority gives its decision on the renewal of a secondment in the light of a request to that effect made by an EU agency.

99 In that regard, it must be observed that Article 41(2) of the Charter provides that the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. More specifically, the right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect that person’s interests adversely (see judgment of 25 June 2020, HF v Parliament, C‑570/18 P, EU:C:2020:490, paragraphs 57 and 58).

100 In the present case, it is apparent from the file that the applicant’s secondment had initially been decided on in the light of, in particular, his son’s state of health and that the administration was not unaware that the applicant hoped that his secondment might be renewed again beyond 15 September 2019, in order that he could remain established in Thessaloniki. Consequently, the decision taken in response to Cedefop’s request of 2 July 2019 significantly affected the applicant’s interests (see, to that effect, judgment of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 51).

101 The applicant was therefore entitled to be heard prior to the adoption of the decision taken in response to Cedefop’s request of 2 July 2019.

102 That finding is not invalidated by the judgment of 29 April 2004, Parliament v Reynolds (C‑111/02 P, EU:C:2004:265), which concerns the situation in which an official is placed, pursuant to Article 37, first paragraph, heading (a), second indent, of the Staff Regulations, in a post of a very particular character, such as Secretary-General of a political group of the European Parliament, and where that political group considers that the relationship of mutual confidence between the group and the official no longer exists. In that situation, the official concerned was not heard prior to the adoption of the decision prematurely terminating his secondment in the interests of the service because the appointing authority was then obliged to act on the decision of the Parliamentary group as soon as possible (see, to that effect, judgment of 29 April 2004, Parliament v Reynolds, C‑111/02 P, EU:C:2004:265, paragraphs 58 to 60).

103 By contrast, when examining Cedefop’s request of 2 July 2019 that the applicant’s secondment be extended in the interests of the service, pursuant to Article 37, first paragraph, heading (a), first indent, of the Staff Regulations, the administration had a wide discretion since, as set out in paragraph 63 above, it is clear from Article 38(b) of the Staff Regulations that it is in the light of the interests of the service that the appointing authority must come to its decision and that the duty to have regard for the welfare of officials required the administration to balance the interests of the service and the interests of the official concerned, in accordance with the case-law cited in paragraph 65 above. In the context of that discretion, the appointing authority was obliged to comply with the right to be heard, the purpose of which is, in particular, to enable the person concerned to submit such information relating to his or her personal circumstances as will argue in favour of the decision being adopted or not, or in favour of its having a specific content (judgment of 14 February 2017, Kerstens v Commission, T‑270/16 P, not published, EU:T:2017:74, paragraph 74).

104 In the light of the foregoing, the Commission’s arguments that the administration has a wide discretion to refuse the renewal of a secondment, that such a refusal to renew a secondment does not change the applicant’s situation or that, in the present case, it had already been agreed that the secondment would last only three years and that Cedefop was not supposed to request a further renewal of the secondment, appear to be unfounded or ineffective.

105 In the second place, as to whether the Commission has complied, in the present case, with the right to be heard, it must be recalled that that right presupposes that the institution concerned hears the person concerned before the adoption of an act which adversely affects that person, since the requirements arising from the rights of the defence do not present any particular difficulties of implementation for a diligent administration and a hearing of the person concerned is a minimum guarantee when the administration is acting in an area in which it has a broad discretion (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 155).

106 Moreover, the right to be heard implies that the administration must, in an oral or written exchange initiated by the competent authority and proof of which must be adduced by the latter, give the addressees of decisions which have a significant effect on their interests the opportunity effectively to make their point of view known in regard to the information on which the administration intends to base its decision. In order to do so, the administration is required not only to bring to the knowledge of the person concerned the various items of information in question, but also to inform him or her in sufficient detail, at the stage when that person is called upon to submit his or her observations, as to what action may be taken on the basis of that information. The administration must thus ensure that the person concerned is informed clearly of the measure contemplated (see judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraphs 265 and 266 (not published) and the case-law cited).

107 In the present case, it must be observed that the request for renewal of the applicant’s secondment was made by Cedefop on 2 July 2019.

108 The appointing authority was under an obligation to provide the applicant with an opportunity effectively to make his views known before it responded to Cedefop’s request of 2 July 2019, irrespective of whether it could have adopted an initial position in that regard, or whether exchanges had previously taken place between the administration and the applicant prior to that request.

109 However, it appears that, by adopting the decision of 2 July 2019, the appointing authority rejected Cedefop’s request on the same day as that on which it was made, by omitting to hear the applicant beforehand in that regard in an oral or written exchange undertaken on its own initiative.

110 The issue of whether the Commission was or was not capable of showing that an alleged agreement had been brought to the applicant’s knowledge, although he claims not to have received those documents stating that his secondment could not be renewed beyond three years, has no bearing in this regard. The argument concerning the existence of a possible previous agreement between the official and the Commission, or between the Commission and Cedefop, appears to be ineffective in the context of the exercise of the applicant’s right to be heard following Cedefop’s request of 2 July 2019.

111 In the third place, it must be observed that a breach of the right to be heard can result in the annulment of a measure only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 105 and the case-law cited).

112 To establish that this is the case, the applicant must explain what arguments and evidence he would have relied on if his rights of defence had been respected and must demonstrate, as appropriate, that such arguments and evidence might have led in his case to a different result (see judgment of 3 July 2019, PT v EIB, T‑573/16, EU:T:2019:481, paragraph 269 (not published) and the case-law cited).

113 Moreover, an applicant who claims that his or her rights of defence have been infringed cannot be required to show that the decision of the EU institution concerned would have been different in content but simply that such a possibility cannot be entirely ruled out (see judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 106 and the case-law cited).

114 In the present case, the applicant correctly maintains that the administration ought to have reassessed the duration of his secondment by taking into account all the factors existing at the time when it took the decision of 2 July 2019, in particular those concerning the interests of its member of staff. The applicant also submits before the Court evidence, admittedly dating from after 2 July 2019, in support of the fact that his son’s state of health had improved by reason of his schooling in a Greek-speaking environment and as a result of his father’s nearby presence and that a relocation to Brussels would have been detrimental to the child’s health. Had the applicant been heard before the adoption of the decision of 2 July 2019, he might possibly have been able to submit evidence at that stage concerning his son’s state of health.

115 As regards the Commission’s arguments that the applicant’s secondment could not in any event have been extended on the ground that that position was necessarily temporary pursuant to Article 37 of the Staff Regulations, or that financial considerations or considerations linked to the interests of the applicant’s original department justified a refusal to renew the secondment, they are either unfounded, for the reasons set out in paragraph 83 above, or ineffective, for the reasons set out in paragraph 79 above.

116 Therefore, it is conceivable that the decision of 2 July 2019 might have been different if the applicant had been heard prior to its adoption.

117 In the light of all the foregoing, it must be held that the second part of the second plea raised by the applicant must be upheld.

118 Consequently, the decision of 2 July 2019 must be annulled without there being any need to consider the fourth plea raised by the applicant.

The first plea, seeking annulment of the 23 January 2020 rejection of the complaint

119 In the context of the first plea, the applicant submits that the 23 January 2020 rejection of the complaint is vitiated by an irregularity in the pre-litigation procedure, on the ground that the appointing authority failed adequately to review the decision of 2 July 2019.

120 According to the applicant, in so doing, the appointing authority committed an error, since the review procedure is designed to make it possible to reach an amicable settlement to a dispute between the official and the administration, entailing a new in-depth assessment of the act adversely affecting the official, in the light of any substantial or procedural objections made by the official.

122 It follows from settled case-law that an interest in bringing proceedings presupposes that the action must be capable, if successful, of procuring an advantage for the party bringing it and that the absence of a continuing interest in bringing proceedings may be raised by the EU Courts of their own motion (see, to that effect, judgment of 6 September 2018, Bank Mellat v Council, C‑430/16 P, EU:C:2018:668, paragraphs 49 and 50 and the case-law cited).

123 In the present case, since the Court has already held that the decision of 2 July 2019 must be annulled, the applicant no longer has an interest in securing the annulment of the 23 January 2020 rejection of the complaint, which is relevant only in relation to the decision of 2 July 2019, the content of which it confirms.

124 Consequently, there is no need to adjudicate on the first plea, which concerns the annulment of the 23 January 2020 rejection of the complaint.

125 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

1. Annuls the decision of the European Commission of 2 July 2019 rejecting the request of the European Centre for the Development of Vocational Training (Cedefop) that IR’s secondment within its services be extended for an additional year;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> IR v Commission (Civil service - Secondment in the interests of the service - Judgment) [2020] EUECJ T-131/20 (02 September 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/T13120.html Cite as: ECLI:EU:T:2020:381, [2020] EUECJ T-131/20, EU:T:2020:381

Court of Justice of the European Communities (including Court of First Instance Decisions)