CELEX: 62017TJ0017
Civil service
Officials
Education
Admission to childcare facilities
Decision to enrol a child in childcare facilities other than those where he was previously enrolled
Mistaken designation of the defendant in the application
Inadmissibility
Liability

Background to the dispute
The applicant, Mr Radu Constantinescu, is an official in the Directorate-General for Infrastructure and Logistics of the European Parliament and assigned to Luxembourg (Luxembourg). He resides in Kreuzweiler (Germany).
The applicant has two children who were aged four and two years when the action was lodged. Both were originally enrolled at the crèche of the European institutions in Kirchberg, Luxembourg.
On 12 January 2016, as the applicant’s elder son had then reached the age limit for attending the crèche, the applicant contacted the European School Luxembourg I — Kirchberg (‘European School in Kirchberg’) by mail in order to register him at the Early Childhood Centre (‘the CPE’ or ‘the childcare facilities’). By letter of 19 January 2016, the European School in Kirchberg replied that its director and that of the European School Luxembourg II — Bertrange-Mamer (‘the European School in Mamer’) jointly decided on new admissions and that the decisions would be taken only after examination of the admission file which should be lodged after the Easter holiday.
In May 2016, the applicant received confirmation from the Office for Infrastructure and Logistics — Luxembourg (OIL) of the registration of his son at the CPE, with no information as to the premises to which the child would be allocated.
On 27 May 2016, the OIL informed the applicant by email that his son would attend the CPE of the European School in Mamer and that, in order to ensure equal treatment of all the children and parents, no derogation was possible (‘the contested decision’).
By letter of 6 June 2016, the applicant lodged a complaint against the decision of the OIL in its capacity as appointing authority refusing to admit his child to the CPE of the European School in Kirchberg near the Parliament. At the same time he lodged an application to refer the matter to the CPE committee for an opinion.
On 29 August 2016, the applicant informed the OIL that his son would not attend the CPE of the European School in Mamer.
On 16 September 2016, the CPE committee informed the applicant that, having analysed the file, it was of the opinion that the Rules on admission to and operation of the CPE establishments had been correctly applied.
By decision of 7 October 2016, the Parliament rejected the applicant’s complaint (‘the decision rejecting the complaint’).
Procedure and forms of order sought
The applicant brought the present action by application lodged at the Registry of the General Court on 11 January 2017.
By letter of 1 February 2017, the Parliament requested the Court, on the basis of Article 42 of the Statute of the Court of Justice of the European Union, to join the European Commission to the proceedings so that the judgment of the Court would be fully and directly enforceable against it.
On 15 February 2017, under the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the Court invited the Parliament to lodge certain documents.
The Parliament replied on 24 February 2017 and the applicant submitted his observations on 21 March 2017.
The Parliament lodged a statement in defence at the Court Registry on 6 April 2017.
The applicant lodged a reply and a request for the adoption of measures of organisation of procedure and measures of inquiry by separate letter of 7 June 2017 and the Parliament lodged a rejoinder containing observations on the request for measures of organisation of procedure and measures of inquiry on 24 July 2017.
The applicant claims that the Court should:
–
annul the contested decision;
–
annul the decision rejecting the complaint;
–
award damages and interest for material and non-material damage suffered;
–
order the Parliament to pay the costs.
The Parliament claims that the Court should:
–
dismiss the action as unfounded;
–
order the applicant to pay the costs.
Upon hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral part of the procedure.
The parties presented oral argument and answered the questions put by the Court at the hearing on 8 March 2018.
Law
Subject matter of the action
As a preliminary point, it should be noted that the applicant seeks the annulment of the contested decision and the annulment of the decision rejecting the complaint. In that regard, it should be borne in mind that claims for annulment formally directed against a decision rejecting a complaint have, where that decision lacks any independent content, the effect of bringing before the Court the act against which the complaint was submitted (judgment of 17 January 1989, Vainker v Parliament,
293/87
,
EU:C:1989:8
, paragraph
). Since in the present case the decision rejecting the complaint lacks any independent content, the action must be regarded as being directed against the contested decision alone. That may, in particular, be the case where the decision rejecting the complaint does not emanate from the same institution as the decision which is the subject of the complaint, provided that it is purely confirmatory of the latter and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission,
T‑325/09 P
,
EU:T:2011:506
, paragraph
).
Admissibility of the claim for annulment
Without formally raising an objection of inadmissibility under Article 130 of the Rules of Procedure, the Parliament submits that it is not the author of the act whose annulment is sought.
By letter of 1 February 2017, the Parliament thus indicated that it had addressed the complaint with full powers as appointing authority with regard to the applicant, including in relation to Article 90 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). That competence had not been delegated by the Parliament to the OIL. However, the act which is challenged in the complaint and whose annulment is primarily sought in the main action emanated from the OIL and not from the Parliament.
The Parliament states, in its reply of 24 February 2017 to the Court’s request to produce, first, the measures by virtue of which it could act as appointing authority and, secondly, the measures by virtue of which certain implementation tasks were entrusted to the OIL by the Commission, that it is apparent from point X of the Annex to the decision of the bureau of 13 January 2014 concerning the delegation of the powers of the appointing authority and the authority empowered to conclude contracts of employment (‘the AECE’) that, irrespective of the matter concerned, the Parliament’s authorities have competence as appointing authority for complaints lodged by Parliament staff. In the context of disputes involving the OIL, the Parliament has not delegated its powers as appointing authority under Article 90(2) of the Staff Regulations either to the Commission or to the OIL and therefore remains competent to hear complaints brought in this area.
At the hearing, the Parliament also stated that the action was admissible, but unfounded.
The applicant, in his observations of 21 March 2017, shares the Parliament’s concern and states that, according to the Rules of the CPE, the crèche is run by the Parliament and the Garderie and Study Centre by the Commission. The OIL has been entrusted by delegation to manage the childcare facilities on behalf of all the institutions and bodies of the European Union in Luxembourg. Finally, the Parliament never contested its competence and is therefore competent to examine his complaint, as is confirmed by the decision of the bureau of the Parliament concerning the delegation of the powers of the appointing authority and of the AECE.
In the first place, it should be noted that Article 2(2) of the Staff Regulations provides that one or more institutions may entrust to one of them or to an inter-institutional body the exercise of some or all of the powers conferred on the appointing authority other than decisions relating to appointments, promotions or transfers of officials. In addition, pursuant to Article 91a of the Staff Regulations, appeals relating to the areas in which Article 2(2) has been applied are to be made against the institution to which the appointing authority entrusted with the exercise of powers is answerable.
Secondly, according to Article 1 of Commission Decision 2003/524/EC of 6 November 2002 establishing the [OIL] (
OJ 2003 L 183, p. 40
), that office is attached to the Directorate-General (DG) for Personnel and Administration of the Commission. Article 11 of Decision 2003/524 provides that ‘the Director [of the OIL] shall be the appointing authority for the [OIL] and the [AECE], in accordance with the rules in force at the Commission, within the limits of the powers conferred on him or her by the Commission’.
Thirdly, Article 15(3) of Decision 2003/524 states that ‘in accordance with Article 90 of the Staff Regulations, requests and complaints relating to the exercise of the powers conferred on the Director [of the OIL] under Article 11 of this Decision shall be lodged with the Directorate-General for Personnel and Administration’ and that ‘any appeal in these areas shall be against the Commission as such’.
In the present case, there is no doubt that the contested decision was adopted by the OIL. Furthermore, it follows from a combined reading of the applicable legislation and, in particular, Article 91a of the Staff Regulations that the Commission is the defendant in an action against a decision of the OIL.
As the Court of Justice and the General Court have already held in numerous judgments, it follows from Article 2 of the Staff Regulations, first, that the appointing authority acts in the name of the institution which designated it, so that acts concerning the legal position of officials and which may adversely affect them must be attributed to the institution to which they are attached and, second, that any appeal must be brought against the institution from which the act having an adverse effect emanated (judgments of 19 March 1964, Schmitz v EEC,
18/63
,
EU:C:1964:15
, p.
, and of 22 November 1990, Mommer v Parliament,
T‑162/89
,
EU:T:1990:72
, paragraph
).
That is further confirmed by the Parliament itself, which states that the contested decision emanated from the OIL and not from the Parliament and that the Commission should therefore be joined to the proceedings so that the judgment to be delivered will be fully and directly enforceable against it.
In that regard, it should be made clear that, although Article 42 of the Statute of the Court of Justice of the European Union enables third-party proceedings to be instituted to contest judgments rendered, it does not empower the General Court to make the Commission intervene.
Moreover, as the Court of Justice has held in the context of its Rules of Procedure, whose wording is identical on that point to that of Article 76 of the Rules of Procedure of the General Court, the mistaken designation in the application of a defendant other than the body which adopted the contested measure does not render the application inadmissible if the application contains information which makes it possible to identify unambiguously the party against whom it is made, such as the designation of the contested measure and the body responsible for it. In such a case, the defendant must be considered to be the body responsible for the contested measure, even if not referred to in the introduction to the application. That situation must however be distinguished from the case in which the applicant persists in the designation of the defendant referred to in the introduction to the application, in full awareness of the fact that that defendant is not the author of the contested measure. In the latter case, the Court must treat as defendant the party designated in the application and, where appropriate, draw the necessary consequences of that designation in so far as concerns the admissibility of the action (see order of 16 October 2006, Aisne and Nature v Commission,
T‑173/06
, not published,
EU:T:2006:320
, paragraphs
and
and the case-law cited).
In that regard, the applicant stated inter alia in his observations submitted on 21 March 2017 (see paragraph 13 above) that he could ‘only note — and deplore — the vagueness that [appeared] to surround the question of the competent appointing authority inasmuch as the European Parliament and the Commission [did not appear] to give it the same answer’, that ‘he addressed his complaint to the Secretary-General of the European Parliament in its capacity as appointing authority, which has never disputed its competence in the matter’ and that he ‘[maintained] that the European Parliament was indeed the authority competent to examine his complaint’.
It follows from the foregoing that the claims for annulment are inadmissible since they were not directed against the Commission.
The claim for damages
In accordance with settled case-law relating to the civil service, where a claim for damages is closely related to a claim for annulment, the rejection of the latter, either as inadmissible or as unfounded, also entails the rejection of the claim for damages (see judgment of 30 September 2003, Martínez Valls v Parliament,
T‑214/02
,
EU:T:2003:254
, paragraph
and the case-law cited).
In the present case, the claim for annulment has such a nexus with the claim for damages.
Since the claim for annulment has been dismissed, the claim for damages must also be dismissed.
It follows from all the foregoing that the application must be dismissed in its entirety.
Costs
Under Article 134 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. However, under Article 135(2) of the Rules of Procedure, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought.
For the reasons set out in this judgment, the applicant has been unsuccessful in his action. Furthermore, in its pleadings the Parliament has expressly requested that the applicant be ordered to pay the costs.
However, it follows from this judgment that the fact, first, that the Parliament declared itself competent to hear the applicant’s complaint although it was directed against an act of the OIL (see paragraph 22 above) and, second, that at no point did it draw the applicant’s attention to the fact that it was not the author of the contested decision is evidence of maladministration on the part of the Parliament and could have misled the applicant and encouraged him to bring the present action against the Parliament alone.
Consequently, the Court considers that proper account of the circumstances of the present case, as regards the provisions of Article 135(2) of the Rules of Procedure, will be taken by deciding that the Parliament is to bear, in addition to its own costs, the costs incurred by the applicant.

On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:

1.
Dismisses the action;

2.
Orders the European Parliament to bear the costs.

Collins
Barents
Passer
Delivered in open court in Luxembourg on 4 October 2018.
[Signatures]
(
*1
)	Language of the case: French.