Information;Order — ECLI:EU:T:2021:796
Date: 2021-11-11
Language of the case: English
Court formation: Seventh Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - unfounded

summary of the pleas relied on. 67 It is settled case-law that that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, if an action is to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself (see judgment of 25 January 2018, BSCA v Commission, T‑818/14, EU:T:2018:33, paragraph 95 and the case-law cited). 68 In the present case, as regards the request for reimbursement, it is possible to ascertain from the application, first, that it is directed against the decision of 30 November 2018, by which the appointing authority of the EEAS rejected that request, and, second, that the applicant relies on a single plea in law, alleging manifest errors of assessment, and infringement of the rules applicable to missions and of the principle of sound administration. In essence, the applicant claims that the EEAS was not entitled to refuse him reimbursement of the mission expenses requested on the sole ground that he had not complied with the itinerary as approved in the Mission Order in relation to the missions at issue. He claims that he could not be obliged to return to Moscow after 23.00, that the route which he followed was no more expensive than the one which had been authorised and that the presentation of boarding cards was not a necessary condition for obtaining reimbursement. It is, in fact, precisely those arguments that the EEAS responded to on the merits in its defence. In addition, the references to the annexes to the application indicate with sufficient precision the passages concerned. 69 The present plea of inadmissibility must therefore be rejected. The plea of inadmissibility alleging that the appointing authority did not come to a final decision on the request for reimbursement 70 The EEAS contends that the action is inadmissible, in so far as it relates to the request for reimbursement, on the ground that no final decision has been taken to reject that request. According to the EEAS, the files of the missions at issue could still be reopened should the applicant provide the missing documents. 71 The applicant disputes that plea of inadmissibility. 72 It must be reiterated that, in the note of 27 July 2018, the applicant submitted to the appointing authority a request based on Article 90(1) of the Staff Regulations and concerning reimbursement of the expenses incurred in the context of the missions at issue. He claimed that he was entitled to that reimbursement on the basis of the documents which he had submitted, without having to add the boarding cards which the administration had asked him to provide. In the decision of 30 November 2018, the appointing authority of the EEAS rejected that request. While that decision left open the possibility for the applicant to produce the documents which the EEAS considered necessary for the purposes of reimbursement, it nonetheless rejected the request by which the applicant had sought to obtain reimbursement without having to produce any other documents. Accordingly, to that extent, the decision of 30 November 2018 is an act adversely affecting the applicant, which the applicant may seek to have annulled by the General Court. 73 In the light of the foregoing, the present plea of inadmissibility must be rejected. 74 Consequently, it is necessary to examine the substance of the application for annulment of the decision of 30 November 2018, in so far as the appointing authority of the EEAS rejected the request for reimbursement. The substance of the action, in so far as it concerns the rejection of the request for reimbursement Preliminary observations 75 First, it is common ground that the Mission Orders relating to the missions at issue provided that, in the context of the Sochi mission, the applicant was to leave Moscow on Wednesday 14 February 2018 to travel by plane to Sochi, where he was to take part in certain activities until the following Saturday 17 February. At his request, he had been authorised to remain in Sochi after completing that mission until Monday 19 February 2018, on which date he boarded a plane that landed in Yerevan at 14.05 in order to participate in certain activities scheduled in Yerevan until Wednesday 21 February 2018 at 18.00. He was due to return to Moscow on Wednesday 21 February 2018 on a flight landing at 23.40 (hereinafter ‘the contested flight’). 76 Next, it is also common ground that the applicant did not take the contested flight. He states that, given that he had taken leave on Thursday 22 February 2018 and that Friday 23 February 2018 was a non-working day, he remained in Yerevan until the morning of that second day, before taking a flight to Wrocław (Poland), which he himself had booked, and was at work again on Monday 26 February 2018 after taking a further flight back to Moscow. 77 Finally, in the decision of 30 November 2018, the appointing authority of the EEAS did not grant the request for reimbursement, on the ground that the applicant had not provided all the supporting documents required, including the boarding cards. The plea relied on in the application 78 In the application, the applicant raises a single plea, alleging a manifest error of assessment, infringement of the principle of good administration, failure to comply with the principle of proportionality, breach of Article 71 of the Staff Regulations and of its derivative provisions such as those in Annex VII to those regulations and in Commission Decision C(2008) 6215 of 18 November 2008 on the general implementing provisions adopting the Guide to missions for officials and other servants of the European Commission (‘the Guide to Missions’), and irrelevance of the request for the provision of the boarding cards as a pre-condition for the reimbursement of mission costs. 79 In essence, first, the applicant argues that he was entitled not to follow the return itinerary which had been approved in the Mission Order, on the ground that that itinerary would have obliged him to return to Moscow at 23.40, even though Chapter 7 of the Guide to Missions provides that staff going on mission cannot be obliged to arrive at the place of employment after 23.00. He admits that he could have raised such an objection when the administration offered him the contested flight, but argues that he was afraid that, in that case, the Yerevan mission would not be authorised. He adds that he considered that he was allowed to extend his stay since, under Chapter 7, he could not be required to take the contested flight. Furthermore, the applicant states that the fact that he did not take the contested flight made it possible for him to take part, on the evening of 21 February 2018, in an event which was one of the activities connected with the Yerevan mission. In his view, that participation was justified by the interests of the service. 80 Second, the applicant states that he did not seek reimbursement of the costs relating to his private journey to Poland and the return to Moscow by a flight other than the contested flight. Furthermore, the total cost of accommodation for his stay in Yerevan was lower than the cost approved in the corresponding Mission Order. Accordingly, the principle that, under Article 11 of Annex VII to the Staff Regulations, the reimbursement of mission expenses is to be limited to the cost of ‘the most economical’ journey available was respected. According to the applicant, where, as in the present case, no additional cost is involved, there is no obligation to adhere strictly to the pre-approved itinerary. The applicable rules allow a degree of flexibility as regards the requirement to communicate the precise details of the mission before departure and it is possible to take into account the final itinerary ex post. Similarly, in the absence of additional costs, the applicant was not required to provide documents relating to his detours. 81 Third, the applicant points out that the amount of claimed daily allowance was no higher than the amount in the itinerary approved in the Mission Order. 82 Fourth, the applicant claims that he was not obliged to attach the boarding cards to his request for reimbursement. In his view, the boarding cards for his flights from Yerevan to Wrocław and from Wrocław to Moscow are not relevant, since he himself booked them and he does not seek reimbursement of the costs relating to those flights. He also claims that it was unnecessary to submit the boarding cards for the other flights, including the contested flight, because those flights had been booked through the approved travel agency of the Delegation to Russia. Under such circumstances, he argues, the boarding passes were not needed to verify the duration of the mission and to prove that the journey was made. 83 The EEAS disputes the applicant’s arguments. 84 It should be borne in mind that, according to Article 71 of the Staff Regulations, ‘an official shall be entitled, as provided in Annex VII, to reimbursement of expenses incurred by him … in the course of or in connection with the performance of his duties’. 85 According to Article 11 of Annex VII to the Staff Regulations: ‘1. An official travelling on mission and holding an appropriate travel order shall be entitled to reimbursement of travel expenses and to daily subsistence allowance in accordance with the following provisions. 2. The travel order shall state the probable duration of the mission … 3. … the reimbursement of mission expenses shall be limited to the cost of the most economical journey between the place of employment and the place of mission which does not require the official on mission to extend his stay significantly’. 86 Article 13(1) of Annex VII to the Staff Regulations provides that ‘the daily subsistence allowance for missions shall comprise a flat-rate sum to cover all expenses incurred by the person on mission’ and that ‘accommodation costs … shall be reimbursed up to a maximum …, on production of supporting documents’. 87 Article 13a of Annex VII to the Staff Regulations gives the appointing authorities of the various institutions the power to lay down detailed rules for the application of Articles 11 to 13 thereof. In accordance with that provision, the Commission adopted the Guide to Missions. By decision of the High Representative of the Union for Foreign Affairs and Security Policy of 17 December 2010, the Guide to Missions was made applicable to the EEAS. 88 In the first place, as regards the applicant’s argument that, if he had taken the contested flight, he would have returned to Moscow after 23.00, it should be noted that Chapter 7 of the Guide to Missions provides as follows: ‘… Staff going on mission cannot be obliged, either at the place of employment or at the place of mission, (not including the extra time added for the purposes of calculating the allowances) to: … – arrive at the place of employment after 23.00 … …’ 89 It follows that Chapter 7 of the Guide to Missions does not preclude the possibility that the planned itinerary for a mission might include a return flight landing after 23.00, but provides that that possibility depends on the consent of the staff going on mission. In the present case, as the applicant has acknowledged, he gave his consent to the flight at issue when the Yerevan Mission Order was being prepared, stating that he wished to avoid any tension with his superiors which might lead to a refusal to authorise the mission. Already at that time, however, he had been considering not taking the flight in question and making a detour for private reasons, as the note of 27 July 2018 shows. Consequently, the applicant’s reliance on Chapter 7 of the Guide to Missions is manifestly unfounded in law. 90 In the second place, as regards the applicant’s other arguments, it should be recalled that Chapter 11 of the Guide to Missions provides as follows: ‘Immediately on your return from mission, you must draw up a statement of mission expenses … … Original supporting documents to be attached to the statement of expenses[:] … For missions by air, original boarding cards must be attached to statements of expenses. Passenger receipts will be required if a detour has been made for private reasons, if you have paid for the air ticket yourself and in the case of any dispute with an airline. Failure to comply with these provisions will delay reimbursement of the expenses incurred. The actual routes and departure and arrival times of the transport used should be indicated.’ 91 In the present case, the applicant, in his declaration of mission expenses relating to the reimbursement of, inter alia, the transport costs relating to the originally scheduled flights, including the contested flight, mentioned the times of the flights which he had taken, which excluded the contested flight and included the flight, booked by himself, between Yerevan and Wrocław. He did not attach to his statement the boarding cards for either the contested flight or the other flights. 92 Although the applicant did not request reimbursement of expenses in excess of those in the itinerary indicated in the Mission Order, the fact remains that he was required to submit to the administration all the supporting documents, including boarding cards, that would allow it to reconstruct his journeys with certainty. In accordance with the principle of sound financial management and the principle of good administration, the appointing authority is required to check whether the official going on mission carried out that mission in accordance with the itinerary indicated in the Mission Order and, if not, to ask that official to state the reasons why he or she did not follow that itinerary. The need for such a check is not mitigated by the fact that the official concerned ultimately followed another, less expensive route, and that he does not seek reimbursement of the costs relating to that other route. By changing the itinerary, that official caused the appointing authority to incur costs which could have been avoided if he had informed it in good time of his intention to change the scheduled itinerary. 93 It follows that the EEAS, when it refused, in the decision of 30 November 2018, to grant the contested request for reimbursement, on the ground that the applicant had not provided all the necessary documentation, correctly applied the relevant provisions, read in the light of the principles of sound financial management and of good administration. The EEAS also complied with the principle of proportionality, since the refusal to grant a request in a case where the conditions laid down by the applicable legislation are not met cannot be regarded as going beyond what is appropriate and necessary for achieving the aim pursued by those provisions. 94 Therefore, it must be held that the plea relied on in the application manifestly lacks any foundation in law. The new pleas in law and new evidence 95 As is apparent from paragraph 16 above, on 24 February 2021, the applicant relied on new pleas in law and produced new evidence, the admissibility of which is disputed by the EEAS. 96 It should be noted that, in so far as those pleas and that evidence relate to the rejection of the request for assistance, there is no need to examine their admissibility or their merits, since the action is inadmissible in so far as it seeks the annulment of the decision leading to that rejection (see paragraph 61 above). 97 In so far as those pleas and evidence relate to the rejection of the request for reimbursement, it is appropriate, in the interests of procedural economy, to rule directly on the substance of the case, without first ruling on the objection raised by the EEAS (see, to that effect and by analogy, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52). 98 The applicant, relying on the new evidence at issue, raises two new pleas in law, alleging, first, a failure on the part of EU officials to maintain impartiality and objectivity resulting in an infringement of Articles 11 and 11a of the Staff Regulations, and, second, a misuse of powers. That evidence, he submits, also supports his plea alleging a manifest error of assessment, since it demonstrates that the decision-making process concerning the missions at issue was vitiated by psychological harassment on the part of the officials involved in that process and that, in any event, the specific obstructive behaviour of those officials was not accidental but was the result of prejudice towards the applicant and of bias on the part of his hierarchical superiors in treating him harshly. 99 In essence, the applicant claims that the evidence which he has produced proves that, when the decision of 30 November 2018 was taken, the EEAS was aware of the accusations of conjugal violence made against him by his wife and that that fact had led the EEAS administration to treat him particularly severely in an attempt to harm him. 100 It must be borne in mind that the concept of misuse of powers encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision will be vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated. In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged (see judgment of 18 November 2020, H v Council, T‑271/10 RENV II, EU:T:2020:548, paragraph 48 and the case-law cited). 101 It should be noted that, as is apparent from the considerations set out in paragraphs 84 to 93 above, the rejection of the request for reimbursement is the result of a correct application of the relevant provisions and general principles. Therefore, even if the evidence produced by the applicant were to show that the EEAS was aware of the accusations of conjugal violence made against him by his wife, it does not follow that that rejection is the consequence of a misuse of powers. 102 Similarly, the considerations set out above also rule out the possibility that the rejection of the request for reimbursement was the result of a lack of impartiality or objectivity contrary to Article 11 of the Staff Regulations, which should have led those officials to refrain from taking any decision concerning him, in accordance with Article 11a of the Staff Regulations. 103 Consequently, without it being necessary to rule on their admissibility, which is disputed by the EEAS, the pleas and arguments which the applicant, relying on new evidence, has put forward in support of his claim for annulment of the decision rejecting his request for reimbursement must be rejected as manifestly lacking any foundation in law. 104 In the light of all of the foregoing considerations, the applicant’s claim for annulment must be rejected as in part inadmissible and in part manifestly lacking any foundation in law. The claim for damages 105 The claim for damages submitted in the application relates to compensation for the damage allegedly suffered by the applicant as a result of ‘his hierarchy’s misconduct to his detriment’ and the rejection by the appointing authority of the request for reimbursement and the request for assistance. In the reply, the applicant relied on a further form of damage, resulting from the ‘usurping powers’ exercised by the EEAS, in that it ruled on the request for assistance without being competent to do so. 106 In the first place, as regards the damage allegedly caused by the rejection of the application for reimbursement and the application for assistance, it should be recalled that, according to settled case-law, a claim for compensation for damage must be dismissed where there is a close connection between that claim and a claim for annulment, which has itself been dismissed as unfounded or inadmissible (see judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 112 and the case-law cited). 107 In the present case, in accordance with that case-law, the claim for compensation for damage caused by the rejection of the request for assistance and of the request for reimbursement must be rejected. As pointed out in paragraphs 61 and 103 above, the applicant’s claims for annulment of the decisions which led to those rejections are inadmissible or manifestly lacking any foundation in law. 108 In the second place, as regards the damage that the applicant claims to have suffered as a result of ‘his hierarchy’s misconduct to his detriment’, it must be borne in mind that, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages is admissible only if it has been preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations (see judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 123 and the case-law cited). 109 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 from conduct on the part of the administration which is not in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time limits, a complaint directed against the act in question, it being open to that person to submit the claim for damages either in that complaint or for the first time in the application, whereas, in the second case, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation, and be continued, if necessary, by a complaint directed against the decision dismissing the request (see judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 124 and the case-law cited). 110 It should be noted that the damage referred to in paragraph 108 above is likely to originate not in a decision-making act but in conduct on the part of the administration, with the result that it is covered by the second case referred to in paragraph 109 above. However, in order to seek compensation for that damage, the applicant did not initiate the two-stage pre-litigation procedure which is required by the case-law in regard to such damage. The claim for compensation in respect of the damage at issue must therefore be rejected as being manifestly inadmissible. 111 In the third place, as regards the damage alleged in the reply, resulting from the ‘usurping powers’ exercised by the EEAS, in so far as it is claimed that it decided on the request for assistance without being competent to do so, it should be recalled that, according to settled case-law, in civil service matters, in order for the European Union to incur liability, a number of conditions must be satisfied: the conduct alleged against the institution, body, office or agency must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage complained of. These three conditions are cumulative, with the result that, if one of them is not met, the European Union cannot be held liable (see, to that effect, judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 97 and the case-law cited). 112 In the present case, first, it must be held that, even though the period for bringing proceedings under Article 91 of the Staff Regulations against another defendant has expired, the applicant has not in any way explained why he could not bring the present action against both the EEAS and the Commission, despite the fact that the appointing authority of the latter was the one that took the decision of 28 June 2019. 113 Second, the applicant does not put forward any argument to explain how the fact that the EEAS lacked competence to process his request for assistance would have entailed a new administrative burden in his defence, which affected the process of his recovery and, therefore, caused harm to his career. On the contrary, the applicant was able to challenge the rejection of his request for assistance by lodging a complaint, which led to the adoption of the decision of 28 June 2019 by the competent appointing authority. Consequently, since the applicant has not in any way substantiated the existence of damage or of a causal link between that damage and the alleged illegality, the claim for compensation in respect of that damage must be rejected as manifestly lacking any foundation in law, without it being necessary to rule on its admissibility, which is disputed by the EEAS (see paragraph 20 above). Costs 114 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 applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the EEAS. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby orders: 1. The action is dismissed. 2. ZU shall pay the costs. Luxembourg, 11 November 2021. E. Coulon R. da Silva Passos Registrar President * Language of the case: English.