Action brought on 24 July 2020 – LB v Parliament
(Case T-468/20)
Language of the case: German
Parties
Applicant: LB (represented by: O. Schmechel, lawyer)
Defendant: European Parliament
Form of order sought
The applicant claims that the Court should
annul the defendant’s decision of 2 July 2020 to transfer the applicant to the European Parliament’s liaison office in Luxembourg with effect from 1 September 2020;
order the defendant to pay the costs of the proceedings.
Pleas in law and main arguments
The action is based on the following pleas in law.
First plea in law: failure to state reasons
The transfer decision is formally unlawful, since it does not contain any statement of reasons. A statement of reasons was required under Article 41(2) of the EU Charter of Fundamental Rights and Article 296 TFEU, since the applicant’s interest herein was clearly identifiable by the defendant.
Second plea in law: failure to comply with the procedure under the terms of the decision
The applicant was allowed to refuse the post at the Liaison Office of the European Parliament (EPLO) in Luxembourg under the terms of the decision and did so. The transfer to that post was therefore no longer an option.
Third plea in law: breach of the duty to have regard for the welfare of officials. The transfer to another place of employment was contrary to the employer’s duty to have regard for the welfare of officials, since it was incompatible with several fundamental rights laid down in the European Charter of Fundamental Rights. In particular, the following rights have been infringed:
The right to private and family life (Articles 7 and 33) and the right of the daughter, a minor, to maintain on a regular basis a personal relationship and direct contact with both her parents (Article 24) were infringed, since the applicant’s family would have to live separately. The daughter would remain in Berlin with the father, the applicant would move to Luxembourg alone.
The right to equality before the law (Article 20) and non-discrimination (Article 21) was infringed. As a married EPLO official and mother of a minor daughter, for whom she shares custody with her husband, the applicant is subject to mobility on the basis of which she is to be transferred to Luxembourg. Separated and divorced officials of an EPLO with shared custody of a minor child remain exempt from mobility until the majority of the child, without there being any objective reason for this unequal treatment.
Fourth plea in law: Disproportionate character of the transfer to another place of employment
There was no balancing of the interests of the applicant and the defendant, although the defendant was obliged to do so in the context of its duty of good administration (Article 41 of the EU Charter of Fundamental Rights).
The protected interests of the applicant clearly outweigh the defendant’s interest in the transfer.
The transfer from the EPLO in Berlin to the EPLO in Luxembourg was not in the interests of the service.
Fifth plea in law: Improper use of discretion
The defendant does not recognise its discretion and therefore has not exercised it.
Sixth plea in law: Principle of the protection of legitimate expectations
Since the applicant was appointed in 2001 until the adoption of the 2018 mobility decision of the Bureau of the European Parliament, the principle that AST officials, like the applicant, are not subject to mobility was applicable. This principle has been in force since the 1998 mobility decision and was reaffirmed in the 2002 and 2004 mobility decisions of the Bureau of the European Parliament.
The applicant’s legitimate expectations in the continued existence of the mobility exception were protected. A change of rules therefore requires appropriate transitional arrangements and appropriate exceptions. The proposed three-year transitional period is inappropriate, since it does not eliminate the separation of the applicant’s family. An exception for the applicant is missing.
Seventh plea in law: Forfeiture
The defendant forfeited the possibility of ordering mobility with the consequence of a change of place of employment against the applicant, since, by repeatedly exempting AST officials from mobility with the applicant, it created the impression that a change of place of employment was not to be expected by the applicant.
____________