Judgment — ECLI:EU:T:2018:917
Date: 2018-12-12
Language of the case: French
Court formation: Fourth Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible

summary form, coherently and intelligibly, in the application itself (orders of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20, and of 21 May 1999, Asia Motor France and Others v Commission, T‑154/98, EU:T:1999:109, paragraph 49). 87 In the present case, in the first place, it should be stated that the applicant did not specify in her application what constituted the breach of the principle of legitimacy on which she relies in the title of her fourth plea. That plea must therefore be declared inadmissible in so far as it relates to the alleged breach of that principle. 88 In the second place, as regards the principle of proportionality on which the applicant relies, it must admittedly be stated that her argument is brief. However, it follows sufficiently clearly and coherently from her reasoning that she claims that there has been a breach of the principle of proportionality which, according to Article 52 of the Charter, must be observed in the limitation of the rights recognised by the Charter. 89 The fourth plea must therefore be declared admissible as regards the infringement of Article 52 of the Charter and breach of the principle of proportionality. (ii) Substance 90 Article 52(1) of the Charter provides: ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’ 91 It follows from the explanations on Article 52 that the purpose of that article is to set the scope of the rights and principles of the Charter and to lay down rules for their interpretation. In particular, Article 52(1) defines the arrangements for the limitations. 92 However, in the present case, it should be observed that, in the context of the present plea, the applicant has not specified which right, or which freedom, recognised by the Charter was limited by the provision at issue. 93 Furthermore, it should be emphasised that, in the context of the first and third pleas raised in support of the plea of illegality against the provision at issue, the Court did not find any limitation by the provision at issue of the rights provided for in the Charter. 94 It follows that the applicant has failed to establish an infringement of Article 52(1) of the Charter. 95 The fourth plea and, consequently, the plea of illegality raised by the applicant must therefore be rejected. (5) Fifth plea: error of law and breach of the principle of sound administration and of the duty to have regard for the welfare of officials and other servants and the duty to provide assistance 96 The applicant submits that, as the provision at issue is unlawful for the reasons set out in the context of her first to fourth pleas, the AHCC made an error of law and breached the principle of sound administration by adopting the contested decision on the basis of that provision. She emphasises that, until the time when the PMO’s memorandum of 6 May 2015 was communicated, the PMO had not informed her that she was not entitled to receive dependent child allowances under the provision at issue. She also observes that payment of those allowances was interrupted suddenly. 97 In her reply, the applicant also claims that there has been a breach of the duty to have regard for the welfare of officials and other servants and of the duty to provide assistance. She maintains that the Commission failed to fulfil those duties by failing to assist and guide the applicant in the steps she took in 2011 or to allow her time to comply, with effect from 2016, with the new requirements of the PMO, according to which she ought to have produced a decision based on the legislation of a Member State. On that point, the applicant states that it was only on reading the Commission’s defence that she became aware that the PMO considered that a decision recognising the judgment of the Tribunal de résidence Buyenzi (District Court, Buyenzi) could be regarded as a decision based on the legislation of a Member State and then be accepted by the PMO as the basis for the grant of the dependent child allowances. 98 In the first place, as regards the error of law on which the applicant relies, it should be stated that she merely refers to the grounds of illegality raised in the context of her first four pleas and that, in the context of the present plea, she does not put forward any further argument to support a finding that the provision at issue is unlawful or that the AHCC made an error of law. As her first four pleas have been rejected, there is no need to examine further the error of law relied on in support of the present plea. 99 In the second place, as regards the principle of sound administration, it is sufficient to observe that, contrary to the applicant’s contention, the AHCC did not suddenly interrupt payment of the allowances in question. As stated in paragraph 5 above, the PMO had previously informed the applicant, by its memorandum of 6 May 2015, that payment of the allowances was going to be interrupted. 100 In the third place, as regards the breach of the duty to have regard for the welfare of its officials and other servants on which the applicant relies in her reply, the Commission claims that that argument is inadmissible, since she raised it out of time. 101 In that regard, it should be emphasised that, according to settled case-law, the administration’s duty to have regard for the welfare of its officials and other servants, which reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil service, and the principle of sound administration combine to require that when the hierarchical authority takes a decision concerning the situation of an official, it should take into account not only the interests of the service but also those of the official concerned (judgments of 7 March 2007, Sequeira Wandschneider v Commission, T‑110/04, EU:T:2007:78, paragraphs 184 and 185, and of 13 November 2014, De Loecker v EEAS, F‑78/13, EU:F:2014:246, paragraph 76). 102 In her application, the applicant claimed that there had been a breach of the principle of sound administration in the context of her fifth plea. It must therefore be considered that the applicant’s argument alleging breach of the duty to have regard for the welfare of officials and other servants is a development of her fifth plea. That argument must therefore be declared admissible. 103 In that regard, it should be borne in mind that the duty to have regard for the welfare of officials and other servants implies, in particular, that, when it takes a decision concerning the situation of an official, the hierarchical authority is to take into consideration all the matters that are capable of informing its decision and that, in doing so, it takes account not only of the interests of the service but also those of the official concerned (judgment of 1 June 1999, Rodriguez Perez and Others v Commission, T‑114/98 and T‑115/98, EU:T:1999:114, paragraph 32). 104 In the present case, it must be stated that the applicant seeks, in essence, to infer from the duty to have regard for the welfare of officials and other servants that the administration was under a positive obligation to assist and guide her at least in the steps taken by her in 2011. 105 In that regard, first, it should be observed that the duty to have regard to the welfare of officials and other servants does not, in principle, impose a wide positive obligation on the administration to assist EU officials or other servants. In particular, a diligent administration which deals with a multitude of requests for dependent child allowances cannot be reasonably expected to take the initiative to assist and guide all those requesting such allowances in the steps which they might have to take in order to obtain such allowances (see, to that effect and by analogy, judgment of 20 July 2016, Barroso Truta and Others v Court of Justice of the European Union, F‑126/15, EU:F:2016:159, paragraph 74). 106 The administration may be required at most to discharge strong obligations under the duty to have regard to the welfare of its officials and other servants when particular circumstances apply, relating in particular to the applicant’s situation of extreme vulnerability (see, to that effect, judgment of 28 October 2010, U v Parliament, F‑92/09, EU:F:2010:140, paragraphs 65 to 67, 85 and 88). However, the applicant does not show or even claim that such circumstances apply in the present case. 107 Second, it should also be observed that every normally diligent official is deemed to be familiar with the Staff Regulations and, more particularly, with the rules governing his or her remuneration, including those relating to family allowances. According to the case-law, the normal diligence to be expected of an official or other servant must be assessed by reference to his training, his grade and his professional experience (judgment of 17 May 2017, Piessevaux v Council, T‑519/16, not published, EU:T:2017:343, paragraph 96 and the case-law cited). 108 In the present case, it should be noted that the applicant entered the service of the Commission in 2007 as a contractual agent in function group IV. According to the table in Article 80(2) of the Conditions of Employment, that function group covers tasks corresponding to the following description: ‘Administrative, advisory, linguistic and equivalent technical tasks, performed under the supervision of officials or temporary staff’. According to Article 82(2)(c), recruitment as a member of the contract staff is to require at least a level of education which corresponds to completed university studies of at least three years attested by a diploma, or, where justified in the interest of the service, professional training of an equivalent level. The wording of the provision at issue is clear in that it expressly makes payment of a dependent child allowance for a child whom the official has a responsibility to maintain conditional on that responsibility having arisen under a judicial decision based on Member States’ legislation, so that it ought to have been obvious to a contractual agent with experience, a level of training and a grade such as the applicant’s that a decision based on the legislation of a third country such as the judgment of the Tribunal de résidence Buyenzi (District Court, Buyenzi), could not serve as the basis of the grant of the dependent child allowance. At the very least, the normal diligence that could be expected of such an agent would have required him or her to seek information in that respect from the administration. Accordingly, the applicant is not justified in claiming that the requirement consisting in producing a decision based on the legislation of a Member State is novel and that the Commission ought thereafter to have given her time to comply with that requirement as from 2016. 109 The applicant’s argument alleging breach of the duty to have regard for the welfare of officials and other servants must therefore be rejected as unfounded. 110 As regards the duty to provide assistance, which is placed on the administration by Article 24 of the Staff Regulations, that duty is concerned with the defence of officials by the institution against the acts of third parties and not against the acts of the institution itself, the review of which is governed by other provisions of the Staff Regulations (judgment of 9 September 2016, De Esteban Alonso v Commission, T‑557/15 P, not published, EU:T:2016:456, paragraph 45 and the case-law cited). 111 In the present case, however, the applicant’s argument does not refer to the actions of third parties, but to an act or omission of the Commission. The applicant cannot therefore rely on a breach of the duty to provide assistance. 112 The present plea must therefore be rejected as unfounded. (6) Sixth plea: breach of the principles of acquired rights, legal certainty and foreseeability 113 In her reply, the applicant claims, for the first time in the present procedure, that there has been a breach of the principle of acquired rights and also of the principles of legal certainty and foreseeability. 114 In that regard, she maintains that she was misled by the PMO until the adoption of the decision rejecting the complaint, owing to the fact that in June 2011 the PMO had accepted the judgment of the Tribunal de résidence Buyenzi (District Court, Buyenzi) as a judicial decision granting entitlement to the allowances in question. It was only by means of the decision rejecting the complaint that she became aware that the judgment of the Tribunal de résidence Buyenzi (District Court, Buyenzi) would no longer be recognised as a decision granting entitlement to the allowances. Before February 2017, moreover, she did not know that the PMO would have accepted, as a decision granting entitlement to the dependent child allowances, a decision recognising the judgment of the Tribunal de résidence Buyenzi (District Court, Buyenzi) adopted by a court of a Member State. It was for that reason that she submitted an application to the Belgian authorities to adopt Joe and Claire. By going back, at such a late stage and so suddenly, on its decision to recognise, between 2011 and 2016, that Burundian judicial decisions produced legal effects and by requiring the applicant to seek such a decision recognising the judgment in question, the Commission breached the applicant’s acquired rights and also the principles of legal certainty and foreseeability. 115 Furthermore, the applicant maintains that a decision recognising the judgment of the Tribunal de résidence Buyenzi (District Court, Buyenzi) by a court in the European Union would still be based on a foreign law and could not thus be regarded as a judicial decision based on the legislation of a Member State on the protection of minors within the meaning of the provision at issue, since, according to the case-law, the provisions granting entitlement to financial contributions must be interpreted strictly. 116 The Commission contends that the applicant’s complaints set out in paragraphs 113 to 115 above are inadmissible, on the grounds that they were raised out of time and that they could have been raised at the stage of the application. 117 In answer to a question put by the Court at the hearing, the applicant submitted that she had raised those complaints for the first time in her reply because she had become aware on reading the defence that the PMO would have accepted a decision recognising the judgment of the Tribunal de résidence Buyenzi (District Court, Buyenzi) adopted by a court of a Member State as granting entitlement to the dependent child allowances for Joe and Claire. 118 In that regard, it should be borne in mind that it follows from Article 84(1) of the Rules of Procedure that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which have come to light in the course of the procedure. 119 In the present case, first, it must be held that, as the applicant acknowledged at the hearing, the AHCC had already informed her in the decision rejecting the complaint that the reason for cancelling the allowances at issue was that the judgment of the Tribunal de résidence Buyenzi (District Court, Buyenzi) was not based on the legislation of a Member State. 120 Thus, it must be stated that it was not when the applicant read the defence for the first time, that she understood the reasons for the cancellation of the dependent child allowances which she received. 121 It follows that, in so far as it relates to the reasons for the cancellation of the dependent child allowances, the applicant’s argument alleging breach of the principles of legal certainty, acquired rights and foreseeability is not based on matters of law or of fact which came to light in the course of the procedure before the Court. That argument must therefore be rejected as inadmissible. 122 Second, it should be stated that the applicant’s argument relating to recognition of the judgment of the Tribunal de résidence Buyenzi (District Court, Buyenzi) by a court of a Member State relates to conduct on the Commission’s part that is unconnected with decision-making and cannot therefore entail the annulment of the contested decision. That argument must therefore be declared ineffective, without there being any need to rule on its admissibility. 123 It follows from all of the foregoing that the action must be dismissed. IV. Costs 124 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. 125 In the present case, the applicant has been unsuccessful and the Commission has applied for costs. The applicant must therefore be ordered, in addition to bearing her own costs, to pay those incurred by the Commission. 126 Under Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Parliament and the Council shall therefore bear their own costs. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Dismisses the action; 2. Orders SH to pay the costs; 3. Orders the European Parliament and the Council of the European Union to bear their own costs. Kanninen Calvo-Sotelo Ibáñez-Martín Reine Delivered in open court in Luxembourg on 12 December 2018. [Signatures] * Language of the case: French.