ORDER OF THE GENERAL COURT (Ninth Chamber)
23 January 2024 (*)
(Civil service – Members of the contract staff – Change of place of employment – Liability – Close link with the claim for annulment – Inadmissibility)
In Case T‑4/23,
PS, represented by S. Rodrigues and A. Champetier, avocats,
applicant,
v
European External Action Service (EEAS), represented by A. Ireland, R. Coesme and S. Falek, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, H. Kanninen (Rapporteur) and M. Sampol Pucurull, Judges,
Registrar: V. Di Bucci,
makes the following
Order
1        By his action based on Article 270 TFEU, the applicant, PS, seeks, first, annulment of the decision of the European External Action Service (EEAS) of 30 September 2022 rejecting his complaint of 20 May 2022 (‘the decision of 30 September 2022 rejecting the complaint’) and, in so far as necessary, of the decision of the EEAS of 22 February 2022 rejecting his request for compensation of 20 October 2021 (‘the decision of 22 February 2022 in so far as it relates to the request for compensation’), and second, compensation for the material and non-material damage which he claims to have suffered as a result of the EEAS’ decision to reassign him to Brussels (Belgium).
Background to the dispute
2        On 16 February 2020, the applicant entered the service of the EEAS as a member of the contract staff for an indefinite period, in accordance with Article 3a of the Conditions of Employment of Other Servants of the European Union. Under the second paragraph of Article 2 of the applicant’s contract of employment, his place of assignment was in Washington (United States). Under the third paragraph of that article, the EEAS reserved the right to reassign the applicant to ‘another place’, solely in the interests of the service. According to the same paragraph, the applicant was required to act on such a reassignment.
3        On 13 October 2020, the authority authorised to conclude contracts (‘the AACC’) sent the applicant a note informing him that the post which he occupied would be suppressed and that the EEAS intended to terminate his contract with effect from 16 February 2021, and invited the applicant to express his views.
4        On 26 October 2020, the applicant requested that the AACC provide clarifications regarding the note referred to in paragraph 3 above.
5        On 24 November 2020, the AACC replied to that request by confirming that the post would be suppressed in the interests of the service and that the applicant’s contract would be terminated.
6        On 25 November 2020, the EEAS decided to terminate the applicant’s contract.
7        On 23 March 2021, the Head of Division ‘HR.2 – Selection and recruitment’ of the EEAS (‘the HR.2 Division’) sent the applicant an email informing him of the decision to reassign him to the vacant architect post No 339626, within the ‘Field Operations’ team of the ‘BA.SI.4’ division at the EEAS headquarters in Brussels, with effect from 27 April 2021 (‘the decision of 23 March 2021’). According to that email, the applicant was to retain his contract of employment and the decision of 25 November 2020 to terminate the applicant’s contract was withdrawn.
8        On 30 March 2021, the applicant’s representative informed the HR.2 Division that, in principle, the applicant would accept the post to which he was to be reassigned, but he asked that he be given until the end of August 2021 to be able to organise his move to Brussels.
9        On 4 May 2021, the Head of the HR.2 Division notified the applicant of his decision to reassign
him to the EEAS headquarters in Brussels with effect from 1 July 2021.
10      On 7 July 2021, the Head of the HR.2 Division informed the applicant that it had finally been decided that the applicant would take up his duties in Brussels on 1 September 2021 (‘the decision of 7 July 2021’).
11      On 23 July 2021, the applicant signed an addendum to his contract of employment. According to that addendum, the applicant’s place of employment was to be in Brussels, with effect from 1 September 2021 (‘the addendum of 23 July 2021’).
12      On 20 October 2021, the applicant lodged, first, a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the addendum of 23 July 2021, and second, a request for compensation under Article 90(1) of the Staff Regulations.
13      By decision of 22 February 2022, the AACC rejected the complaint lodged by the applicant against the addendum of 23 July 2021 as inadmissible. By the decision of 22 February 2022 in so far as it relates to the request for compensation, the AACC also rejected the request for compensation of 20 October 2021.
14      On 20 May 2022, the applicant lodged, first, a complaint against the decision of 22 February 2022 in so far as it relates to the request for compensation and, second, a new request for compensation.
15      The addendum of 23 July 2021 and the decision of 22 February 2022, in so far as it concerned that addendum, were the subject of an action for annulment lodged at the Registry of the General Court on 31 May 2022 under case number T‑327/22 (‘the action for annulment of 31 May 2022’).
16      By the decision of 30 September 2022 rejecting the complaint, the AACC rejected the complaint of 20 May 2022 as manifestly inadmissible.
17      On the same day, by a separate decision, the AACC rejected the new request for compensation, submitted on 20 May 2022, as in part inadmissible and in part unfounded.
18      By order of 19 June 2023, PS v EEAS (T‑327/22, not published, EU:T:2023:354), the General Court dismissed the action for annulment of 31 May 2022 as inadmissible.
Forms of order sought
19      The applicant claims, in essence, that the Court should:
–        annul the decision of 30 September 2022 rejecting the complaint and, so far as necessary, the decision of 22 February 2022 in so far as it relates to the request for compensation;
–        order the EEAS to pay him the sum of EUR 65 000 as compensation for the professional
and reputational harm suffered, EUR 75 000 as compensation for the harm to health suffered, and EUR 3 289 200 as compensation for the material damage suffered;
–        order the EEAS to pay the costs.
20      In the plea of inadmissibility, the EEAS contends, in essence, that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
Law
21      Under Article 130(1) and (7) of the Rules of Procedure of the General Court, the General Court may, at the defendant’s request, give a decision on inadmissibility without going to the substance of the case.
22      In the present case, since the EEAS has requested a ruling on inadmissibility, and the Court considers that it has sufficient information available to it from the material in the file, the Court has decided to give a ruling without taking further steps in the proceedings.
The claim for annulment
23      The applicant, while submitting a claim for compensation, seeks annulment of the decision of 30 September 2022 rejecting the complaint and, so far as necessary, of the decision of 22 February 2022 in so far as it relates to the request for compensation.
24      According to settled case-law in civil service matters, a decision of an institution rejecting a request for compensation is an integral part of the preliminary administrative procedure which precedes an action to establish liability before the Court. The measure setting out the position adopted by the institution during the pre-litigation stage has the sole effect of allowing the party who has suffered damage to apply to the Court for compensation, and consequently, claims for annulment of such a decision cannot be assessed in isolation from the claims relating to compensation (see judgment of 3 October 2019, DQ and Others v Parliament, T‑730/18, EU:T:2019:725, paragraph 42 and the case-law cited).
25      Accordingly, there is no need in the present case to rule in isolation on the applicant’s first head of claim, since the sole purpose of the present action is to obtain compensation for the damage which the applicant claims to have suffered as a result of unlawful acts that he attributes to the EEAS.
The claim for compensation
26      As a preliminary point, it should be noted that, in the decision of 30 September 2022 rejecting the complaint, the AACC rejected the complaint, lodged by the applicant against the decision of 22 February 2022 in so far as it relates to the request for compensation, as inadmissible on the ground, inter alia, that he was seeking to challenge, indirectly, the decision to suppress his post in Washington and the decision of 23 March 2021, which had already been the subject of complaints declared inadmissible on account of the expiry of the time limit prescribed by Article 90(2) of the Staff Regulations. Furthermore, the AACC referred to the case-law according to which a claim for compensation must be declared inadmissible in so far as it is closely linked to an application for annulment which has itself been found to be inadmissible.
27      In the plea of inadmissibility, the EEAS has relied on that same ground in order to argue that the present action is inadmissible.
28      Furthermore, in the context of a measure of organisation of procedure by which the parties were invited to submit their observations on the conclusions which they drew, for the present case, from the order of 19 June 2023, PS v EEAS (T‑327/22, not published, EU:T:2023:354), the EEAS submitted that the present action should be dismissed as inadmissible for failure to comply with the requirements of the pre-litigation stage. According to the EEAS, it is apparent from that order that the applicant did not challenge the decision of 23 March 2021 in due time under Article 90(2) of the Staff Regulations. Thus, to find that the action for damages is admissible would result in an extension of the deadlines laid down in the Staff Regulations to the benefit of the applicant, which would be in contradiction with the requirement of legal certainty and with the need to avoid any discrimination or arbitrary treatment in the administration of justice.
29      In that regard, the EEAS submits that, since the applicant did not bring an appeal against the order of 19 June 2023, PS v EEAS (T‑327/22, not published, EU:T:2023:354), within the period prescribed in Article 56 of the Statute of the Court of Justice of the European Union, the order has become final and has acquired the force of res judicata.
30      In his observations on the plea of inadmissibility, the applicant has stated that the present action does not seek compensation for the damage linked to the suppression of his post but compensation for the damage linked to the reassignment decision.
31      In addition, the applicant claims, in essence, that the addendum of 23 July 2021 is an autonomous act amending his contract. According to him, the addendum of 23 July 2021 was issued by the competent authority and includes a definitive position adopted by the administration. Thus, according to him, it is a decision which produces binding legal effects capable of affecting his interests. He claims that the decisions of 23 March, 4 May and 7 July 2021 should be regarded as preparatory acts which express mere intention on the part of the EEAS, whereas the addendum of 23 July 2021 lays down the EEAS’ final position as regards the applicant’s reassignment to Brussels. Consequently, the complaint of 20 October 2021 was lodged, pursuant to Article 90(2) of the Staff Regulations, within the period prescribed as regards the addendum of 23 July 2021.
32      In response to the abovementioned measure of organisation of procedure, the applicant claims, in essence, that, by lodging a complaint against the addendum of 23 July 2021, he duly followed the internal pre-litigation procedure to challenge that act. Since he brought his action against the addendum of 23 July 2021 with the belief that it was admissible, it cannot be asserted that he failed to contest, in due time, acts that purportedly adversely affect him.
33      Furthermore, the applicant claims that, in accordance with the principle of the autonomy of legal remedies, the fact that an action for annulment is declared inadmissible does not mean that an action for damages brought at the same time is inadmissible on the sole ground that those actions are based on similar, or even identical, complaints.
34      It follows, according to the applicant, that the order of 19 June 2023, PS v EEAS (T‑327/22, not published, EU:T:2023:354), has no bearing on the admissibility of the present case.
35      In that regard, it should be observed 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. The pre-litigation procedure in actions for damages differs according to whether the damage for which reparation is sought results from an act having an adverse effect for the purposes of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case it is for the person concerned to submit to the administration, within the prescribed time limit, a complaint directed against the act in question. In the second case, on the other hand, 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 continue, where appropriate, with a complaint against the decision rejecting that request (see judgment of 18 September 2018, Barroso Truta and Others v Court of Justice of the European Union, T‑702/16 P, EU:T:2018:557, paragraphs 64 and 65 and the case-law cited).
36      Furthermore, the action for annulment and the action for damages are independent remedies. However, an exception to that principle has been accepted in civil service law when a claim for compensation is closely linked to the claim for annulment which the Court has previously rejected (see, to that effect, judgments of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 51, and of 24 January 1991, Latham v Commission, T‑27/90, EU:T:1991:5, paragraph 38 and the case-law cited).
37      It has also been held that a claim for compensation for material and non-material damage had be rejected in so far as it was closely linked to the claim for annulment which itself had been dismissed as inadmissible or unfounded (see, to that effect, judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 202 and the case-law cited).
38      In the present case, first, the applicant claims that the reassignment resulted in a downgrading of his professional level in comparison to the professional level corresponding to the duties and functions he had been hired for in Washington, as well as a downgrading in his professional prestige. Consequently, he seeks compensation ex aequo et bono for ‘professional and reputational’ harm which he estimates at EUR 65 000.
39      Second, according to the applicant, his reassignment had consequences for his well-being and that of his family. Accordingly, he submits that the EEAS infringed the duty of care normally incumbent on the administration. The reassignment therefore caused him health problems and non-material damage. Thus, he seeks compensation ex aequo et bono for non-material damage and harm to his health, which he estimates at EUR 75 000.
40      Third, the applicant claims that he has suffered material damage since, as a result of his reassignment, he lost the benefit of several allowances to which he was entitled by reason of the post which he held in Washington. In respect of that damage, he seeks compensation in the amount of EUR 3 289 200, that is to say, EUR 2 970 000 in annual damages for a period of 11 years and EUR 319 200 in loss of salary in the event of permanent invalidity.
41      As regards the causal link between the damage relied on and the alleged misconduct on the part of the EEAS, the applicant claims that the damage alleged in the present action was brought about by the reassignment decision.
42      First, in so far as the heads of damage relied on by the applicant, as set out in paragraphs 38 to 40 above, are all the result of the decision to reassign him to Brussels, it should be noted that the claim for compensation for those heads of damage is closely linked to the action for annulment of 31 May 2022, by which the applicant sought the annulment of the addendum of 23 July 2021. Thus, contrary to what the applicant asserts in his response to the measure of organisation of procedure, by means of the present action, he is seeking precisely to obtain compensation for the allegedly harmful consequences of the decision of 23 March 2021.
43      There is therefore a close link between the claim for compensation made in the present action and the claim for annulment of the addendum of 23 July 2021, which the Court dismissed as inadmissible in its order of 19 June 2023, PS v EEAS (T‑327/22, not published, EU:T:2023:354). Accordingly, the claim for compensation must also be rejected as inadmissible.
44      Second, and in any event, it should be recalled that the Court held, first, that the addendum of 23 July 2021 constituted a measure which merely confirmed the decision of 23 March 2021, as amended by the decision of 7 July 2021, as regards the applicant’s place of employment and the date of entry into service (order of 19 June 2023, PS v EEAS, T‑327/22, not published, EU:T:2023:354, paragraph 32), and second, that that decision had not been the subject of a complaint within the time limit laid down in Article 90(2) of the Staff Regulations (see order of 19 June 2023, PS v EEAS, T‑327/22, not published, EU:T:2023:354, paragraph 27) or, consequently, of an action for annulment. It is apparent from the case-law that an official who failed to contest the measures which adversely affect him or her, by lodging a complaint or bringing proceedings to annul them at the proper time, cannot repair that omission and, as it were, procure himself or herself further time for bringing proceedings by means of a subsequent claim for compensation (see, to that effect, judgment of 13 July 1993, Moat v Commission, T‑20/92, EU:T:1993:63, paragraph 46).
45      In the light of all the foregoing, the action must be dismissed as inadmissible.
Costs
46      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.
47      In the present case, 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 (Ninth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      PS shall pay the costs.
Luxembourg, 23 January 2024.
V. Di Bucci
L. Truchot
Registrar
President
*      Language of the case: English.