Judgment — ECLI:EU:T:2005:437
Date: 2005-12-08
Language of the case: French
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Specific cases;Principle of the protection of legitimate expectations;Secondment;Duty to have regard for the interests of officials;Plea alleging misuse of powers;Sufficient compensation provided by annulment of the act
Procedure: Staff cases - unfounded;Action for damages - unfounded;Staff cases - successful;Judgment delivered after back reference;Action for damages - inadmissible

SUMMARY — CASE T-237/00 
Held: The decision of 18 July 2000 of the Secretary-General of 
the Parliament terminating the applicant's secondment in 
the interests of the service to the political group EDD and 
reinstating him in the Directorate-General for Information 
and Public relations with effect from 15 July 2000 is 
annulled. The Parliament is ordered to pay the applicant a 
sum corresponding to the difference between the 
remuneration which he should have received as an official 
on secondment in Grade A2, Step 1, and that which he 
received following his reinstatement in Grade LA5, Step 
3, for the period 15 July 2000 to 30 November 2000, plus 
default interest at the rate of 5.25% from the date on 
which the amounts making up the sum referred to in 
paragraph 149 were payable until the date of actual 
payment. The action for damages is declared inadmissible 
in so far as the applicant seeks compensation for the harm 
caused by the conduct, not involving the taking of 
decisions, of the EDD group and certain of its members. 
The Parliament is ordered to pay the applicant the sum of 
1 euro by way of symbolic damages for the non-pecuniary 
harm sustained as a result of the adoption of the contested 
decision. The Parliament is to pay all the costs of the main 
proceedings. The parties are to bear their own costs in the 
interlocutory proceedings. 
Summary 
1. Officials - Secondment in the interests of the service - Power of the appointing 
authority to terminate prematurely - Existence - Conditions 
(Staff Regulations, Arts 37, first para, (a), and 38(b)) 
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REYNOLDS v PARLIAMENT 
2. Officials — Secondment in the interests of the service — Request to terminate 
prematurely by the service to which seconded - Discretion of the appointing 
authority - Scope 
(Staff Regulations, Art. 38) 
3. Officials - Secondment in the interests of the service — Decision terminating 
prematurely - Respect for the rights of the defence — Obligation to hear person 
concerned before adopting decision which must be observed even in the absence of 
an expression provision — Limits 
(Staff Regulations, Art. 38) 
4. Officials - Decision having an adverse effect — Obligation to hear person 
concerned before adopting decision - Failure to observe - Irregularity having a 
particular impact on the content of the decision - Infringement of the rights of the 
defence — Judicial review — Scope 
5. Officials - Actions - Actions for compensation brought without a pre-litigation 
procedure consistent with the Staff Regulations - Inadmissible 
(Staff Regulations, Arts 90 and 91) 
1. Articles 37 and 38 of the Staff Regulations do not expressly provide that the 
appointing authority may terminate a secondment in the interests of the service 
before expiry of the period initially envisaged. However, Article 38(b) of the Staff 
Regulations, which provides that the duration of secondment in the interests of the 
service is to be determined by the appointing authority, 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 subparagraph (a) of the first paragraph of Article 37 of 
the Staff Regulations and, accordingly, constitute an essential condition of its 
continuation. Consequently, where it proves necessary in order to ensure that 
secondment continues to be in the interests of the service, the appointing authority 
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SUMMARY — CASE T-237/00 
has at all times the power to alter the duration initially envisaged and, accordingly, 
to terminate the secondment before the end of that period. 
That interpretation is necessary in order to ensure that Article 38(b) of the Staff 
Regulations does not lose all practical effect. Where secondment becomes 
incompatible with the interests of the service, in particular because the relations of 
mutual confidence between the official on secondment and the service to which or 
the person to whom he has been seconded no longer exist, the appointing authority's 
inability to terminate the secondment before the expiry of the period initially 
envisaged would be likely to harm the efficiency of that service or person and, more 
generally, the Community administration. 
(see paras 48-51) 
2. The request by the service to which or the person to whom an official has been 
seconded that his secondment be terminated before the agreed time, although 
decisive in nature, does not mean that the appointing authority has no discretion in 
the matter and is required to comply with the request. When it receives such a 
request, the appointing authority is required at the very least to ascertain, neutrally 
and objectively, whether the minimum requirements for the adoption of such a 
decision are satisfied, that is to say, whether the request is beyond all doubt the 
valid expression of the service to which or the person to whom the official was 
seconded and also that it is not based on manifestly illegal grounds. 
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REYNOLDS v PARLIAMENT 
That conclusion is not altered by the fact that the request originates in a political 
group of the European Parliament and because it seeks to terminate the secondment 
of an official to the post of Secretary-General of that group. 
(see paras 81-82) 
3. The fact that the Staff Regulations do not expressly provide that an official who 
has been seconded in the interests of the service must be consulted before a decision 
terminating his secondment before the expiry of the period initially envisaged is 
adopted does not mean that the appointing authority was under no such obligation. 
The principle of respect for the rights of the defence in any procedure initiated 
against a person which may culminate in an act adversely affecting him is a 
fundamental principle of Community law which must be observed even in the 
absence of an express provision to that effect in the rules governing the procedure 
in question. 
The fact that a complaint procedure is provided for in Article 90 of the Staff 
Regulations does not as such suffice to preclude the existence of an obligation on 
the appointing authority to hear the official concerned before adopting a decision 
adversely affecting him. It is an absolute requirement of the principle of respect for 
the rights of the defence that the person concerned be heard before the decision 
adversely affecting him is adopted. It is only in special circumstances where it is 
impossible in practice or incompatible with the interests of the service to consult the 
official concerned before adopting the contested decision that the requirements of 
the principle of respect for the rights of the defence may be satisfied by a hearing 
shortly after the adoption of the contested decision. 
(see paras 86, 90, 94-95) 
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SUMMARY — CASE T-237/00 
See: T-169/95 Quijano v Commission [1997] ECR-SC I-A-91 and II-273, para. 44; 
T-211/98 F v Commission [2000] ECR-SC I-A-107 and II-471, paras 28 and 34 
4. The principle of respect for the rights of the defence is infringed where it is 
established that the person concerned was not given a proper hearing before the act 
adversely affecting him was adopted and where it cannot be reasonably precluded 
that that irregularity could have had a particular impact on the content of that act. 
The possibility that a preliminary consultation might have a particular impact on the 
content of an act adversely affecting the person concerned cannot be reasonably 
precluded unless it is established that the person adopting the act has no discretion 
and is required to act as he did. 
It is not for the Community judicature to ascertain whether there were any factors 
capable of having a particular impact on the content of the act having an adverse 
effect since such an examination necessarily means that it would take the place of 
the administrative authority and anticipate the result the latter would reach if it heard 
the person concerned before possibly adopting that act, which is not permissible. 
(see paras 112-113,115) 
See: T-346/94 France-aviation v Commission [1995] ECR II-2841, para. 39 
5. In the system of remedies established by Articles 90 and 91 of the Staff 
Regulations, an action for compensation, which is an independent remedy by 
comparison with the action for annulment, is admissible only if it has been preceded 
by a pre-litigation procedure consistent with the provisions of the Staff Regulations. 
That procedure differs according to whether the harm in respect of which reparation 
is sought results from an act adversely affecting the applicant within the meaning 
of Article 90(2) of the Staff Regulations or conduct on the part of the administration 
which is not in the nature of a decision. In the former case, the person concerned 
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REYNOLDS v PARLIAMENT 
must submit a complaint against the act in question to the appointing authority 
within the prescribed period. In the latter case, on the other hand, the 
administrative procedure must commence with the introduction of a request within 
the meaning of Article 90(1) of the Staff Regulations for reparation and, where 
appropriate, be followed by a complaint against the decision rejecting the request. 
(see para. 131) 
See: T-500/93 Y v Court of Justice [1996] ECR-SC I-A-335 and II-977, para. 64; 
T-15/96 Liao v Council [1997] ECR-SC I-A-329 and II-897, para. 57 
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