CELEX: 62009FJ0003
Public service
Officials

1.
Officials – Assignment – Transfer
(Staff Regulations, Art. 7(1))
2.
Officials – Equal treatment – Advantages granted upon reassignment to the headquarters of the Commission after completing
a period of normal assignment in a third country
(Staff Regulations, Annex X, Arts 3 and 15)
1.
A transfer in the interests of the service does not preclude the competent authorities from taking account of the personal
wishes of those concerned, particularly in order to enable them to overcome any personal problems. In so far as the efficiency
of every official depends on his personal development, and in accordance with the duty of the European Communities to have
regard for the welfare of their officials, the interests of the service necessarily involve taking into consideration personal
problems raised by officials. Allowing an official who has been reassigned at his express request and for personal reasons
to disregard that fact and to attribute his reassignment solely to the interests of the service would be tantamount to dissociating
the interests of the service and the official’s personal situation incorrectly, since those two factors are inextricably linked.
(see para. 47)
See:
140/77
Verhaaf
v
Commission
[1978] ECR 2117, paras 11 and 12
2.
The principle of equal treatment is infringed where comparable situations are treated differently or different situations
are treated in the same way, unless such difference in treatment is objectively justified. The same applies to the principle
of non‑discrimination, which is merely the specific expression of the general principle of equal treatment and constitutes,
in conjunction with the latter, one of the fundamental rights of Community law with which the Court ensures compliance. The
principle of proportionality demands that measures of the Community institutions do not exceed the confines of what is appropriate
and necessary in order to achieve the intended objective.
However, if the Community legislature was exercising its discretion when it decided to introduce ‘recycling’, in other words
temporary reassignment, with his post, of an official posted in a non-Member State to the Commission’s headquarters or any
other place of employment in the Community, it has, a fortiori, a wide discretion to determine the conditions and arrangements
for that ‘recycling’. Consequently, the principles referred to above must be interpreted in the light of that wide discretion,
while still taking account of the need to implement the legislature’s choices when it comes to staff policy.
In such a field, the Community judicature merely ascertains, as regards the principle of equal treatment and the principle
of non‑discrimination, whether the institution concerned applied a distinction which was arbitrary, or manifestly inappropriate
in relation to the objective pursued, and, as regards the principle of proportionality, whether the measure adopted was manifestly
inappropriate in relation to the objective pursued.
In view of the personal or family problems and constraints that a posting to a non-Member State may entail for officials,
it cannot be argued that the situation of officials completing a period of normal secondment in a non-Member State is comparable
to that of officials who leave the non-Member State before the end of such a period, particularly where they leave at their
own request. The same is true if the situation of officials is judged and assessed taking account of the needs of the Community
civil service, particularly the need for long-term and continuous service, as well as of budgetary requirements; it must be
admitted that such needs are better served by the completion of a period of normal secondment in a non-Member State than by
an early departure.
Since the situation of officials who complete a period of normal secondment in a non-Member State is thus not comparable to
that of officials who do not complete such a period, it follows that, except where there is objective justification to the
contrary, the distinction drawn between those two categories of officials is not only justified but even necessary.
In that context, the Community legislature is free to reserve certain advantages for officials who complete a period of normal
secondment in a non-Member State, and it is also free, subject to the principle of proportionality, to determine what those
advantages should be, as it did in introducing the ‘recycling’ periods and continued payment of the education allowance with
interest. Given that an official reassigned to headquarters without ‘recycling’ loses only the interest on the education allowance
which is allocated to officials reassigned with ‘recycling’, and not his entitlement to the education allowance, that distinction
is by no means disproportionate in relation to its objective.
(see paras 50, 51, 53-57)
See:
122/78
Buitoni
[1979] ECR 677, paras 16 and 20; 66/82
Fromançais
[1983] ECR 395, para. 8; 15/83
Denkavit Nederland
[1984] ECR 2171, para. 25; 279/84, 280/84, 285/84 and 286/84
Rau Lebensmittelwerke and Others
v
Commission
[1987] ECR 1069, para. 34; 265/87
Schräder HS Kraftfutter
[1989] ECR 2237, para. 22; C-8/89
Zardi
[1990] ECR I‑2515, para. 10; C-157/96
National Farmers’ Union and Others
[1998] ECR I‑2211, para. 60
T-13/97
Losch
v
Court of Justice
[1998] ECR-SC I‑A‑543 and II‑1633, paras 113, 121 and 122; T-164/97
Busacca and Others
v
Court of Auditors
[1998] ECR-SC I‑A‑565 and II‑1699, paras 49, 58 and 59; T-112/96 and T-115/96
Séché
v
Commission
[1999] ECR-SC I‑A‑115 and II‑623, paras 127 and 132; T-211/02
Tideland Signal
v
Commission
[2002] ECR II‑3781, para. 39; T‑94/01, T‑152/01 and T‑286/01
Hirsch and Others
v
ECB
[2003] ECR-SC I‑A‑1 and II‑27, para. 51; T-2/03
Verein für Konsumenteninformation
v
Commission
[2005] ECR II‑1121, para. 99; judgment of 13 September 2006 in T‑217/99, T‑321/00 and T‑222/01
Sinaga
v
Commission
, not published in the ECR, para. 144
F‑43/05
Chassagne
v
Commission
[2007] ECR-SC I‑A‑1‑27 and II‑A‑1‑139, para. 55, para. 59 and the case-law cited therein, and para. 61; F-115/07
Balieu-Steinmetz and Noworyta
v
Parliament
[2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 26, and the case-law cited therein