62016TJ0750
JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition)
14 December 2018 (
*1
)
(Civil service – Officials – Article 42c of the Staff Regulations – Leave in the interests of the service – Equal treatment – Prohibition of discrimination on grounds of age – Manifest error of assessment – Liability)
In Case T‑750/16,
FV, a former official of the Council of the European Union, represented initially by L. Levi and A. Tymen, and subsequently by L. Levi, lawyers,
applicant,
v
Council of the European Union, represented by M. Bauer and R. Meyer, acting as Agents,
defendant,
supported by
European Parliament, represented by A. Troupiotis and J.A. Steele, acting as Agents,
and by
European Commission, represented by G. Berscheid and D. Martin, acting as Agents,
interveners,
APPLICATION pursuant to Article 270 TFEU seeking, first, annulment of the decision of the Council of 8 December 2015 to place the applicant on leave in the interests of the service on the basis of Article 42c of the Staff Regulations of Officials of the European Union and, if necessary, the decision of 19 July 2016 rejecting the complaint brought by the applicant and, secondly, compensation for the harm allegedly suffered by the applicant,
THE GENERAL COURT (Second Chamber, Extended Composition),
composed of M. Prek, President, E. Buttigieg (Rapporteur), F. Schalin, B. Berke and M.J. Costeira, Judges,
Registrar: M. Marescaux, Administrator,
having regard to the written part of the procedure and further to the hearing on 10 July 2018,
gives the following
Judgment
I. Background to the dispute
1
The Staff Regulations of Officials of the European Union (‘the Staff Regulations’) have been amended, inter alia, by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15).
2
The first, third, seventh and twelfth recitals of Regulation No 1023/2013 state:
‘(1)
The European Union, and its more than 50 institutions and agencies, should continue to be equipped with a high-quality European public administration, so as to enable it to achieve its objectives, implement its policies and activities and perform its tasks to the highest possible standard in accordance with the Treaties in order to meet the challenges, both internal and external, that it will face in the future and to serve the citizens of the Union.
…
(3)
Given the size of the European civil service when measured against the objectives of the Union and its population, a decrease in the number of staff of the institutions and agencies of the Union should not lead to any impairment of the performance of their tasks, duties and functions in accordance with the obligations and powers under the Treaties. In this regard, there is a need for transparency in relation to the personnel costs incurred by each institution and agency with respect to all categories of staff employed by them.
…
(7)
A broader aim should be to optimise the management of human resources in a European civil service characterised by its excellence, competence, independence, loyalty, impartiality and stability, as well as by cultural and linguistic diversity and attractive recruitment conditions.
…
(12)
In its conclusions of 8 February 2013 on the multiannual financial framework, the European Council pointed out that the need to consolidate public finances in the short, medium and long term requires a particular effort by every public administration and its staff to improve efficiency and effectiveness and to adjust to the changing economic context. That call reiterated in fact the objective of the 2011 Commission proposal for amendment of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union, which strove to ensure cost-efficiency and acknowledged that challenges currently faced by the European Union require a particular effort by each and every public administration and each and every member of its staff to improve efficiency and to adjust to the changing economic and social context in Europe …’.
3
Article 1(24) of Regulation No 1023/2013 provided for the insertion, in Chapter 2 of Title III of the Staff Regulations, of Section 7, entitled ‘Leave in the interests of the service’, which contains a single provision, Article 42c. According to that provision:
‘At the earliest five years before the official’s pensionable age, an official with at least ten years of service may be placed by decision of the appointing authority on leave in the interests of the service for organisational needs linked to the acquisition of new competences within the institutions.
The total number of officials placed on leave in the interests of the service each year shall not be higher than 5% of the officials in all institutions who retired the previous year. The total number thus calculated shall be allocated to each institution according to their respective numbers of officials at 31 December of the preceding year. The result of such allocation shall be rounded up to the nearest whole number in each institution.
Such leave shall not constitute a disciplinary measure.
The duration of the leave shall correspond in principle to the period until the official reaches pensionable age. However, in exceptional situations, the appointing authority may decide to put an end to the leave and reinstate the official.
When the official placed on leave in the interests of the service reaches pensionable age, he shall automatically be retired.
Leave in the interests of the service shall be governed by the following rules:
(a)
another official may be appointed to the post occupied by the official;
(b)
an official on leave in the interests of the service shall not be entitled to advancement to a higher step or promotion in grade.
An official thus placed on leave shall receive an allowance calculated in accordance with Annex IV.
At the official’s request, the allowance shall be subject to contributions to the pension scheme, calculated on the basis of that allowance. In such a case, the period of service as an official on leave in the interests of the service shall be taken into account for the purpose of calculating years of pensionable service within the meaning of Article 2 of Annex VIII.
The allowance shall not be subject to a correction coefficient.’
4
Regulation No 1023/2013 entered into force on 1 November 2013 and Article 42c of the Staff Regulations has been applicable since 1 January 2014.
5
The applicant, FV, is a former official of the Council of the European Union. On 1 May 1981 she entered the service of the General Secretariat of the Council (‘the GSC’) as a probationer and on 1 November 1981 she was established. Over the course of her career, she has been assigned to various services within the Council.
6
[confidential] (
1
)
7
[confidential]
8
By Staff Communication No 71/15 of 23 October 2015 (‘the Staff Communication’), the Secretary-General of the Council provided information on the implementation of Article 42c of the Staff Regulations by the Council. The communication stated that:
‘… The EU institutions must continually innovate and modernise, which means that officials must acquire new competences and update their knowledge to adapt to new developments. Those new competences may be linked, for example, to new IT tools, new systems put in place for the production of European Council/Council documents, new public procurement or internal auditing procedures, new working methods or new management or organisational arrangements.
The purpose of leave in the interests of the service is to allow officials who experience difficulties in acquiring new competences and in adapting to the changing work environment to be placed on leave before they reach retirement age. …
In 2015, five (5) opportunities are available within the Council and the European Council …’
9
[confidential]
10
[confidential]
11
[confidential]
12
[confidential]
13
[confidential]
14
[confidential]
15
[confidential]
16
[confidential]
17
[confidential]
18
[confidential]
19
[confidential]
20
[confidential]
II. Procedure and forms of order sought
21
By application lodged at the Court Registry on 28 October 2016, the applicant brought the present action.
22
By separate document lodged at the Court Registry on that same day, the applicant requested that she be granted anonymity pursuant to Article 66 of the Rules of Procedure of the General Court. By decision of 30 January 2017, the Court granted that request.
23
By document lodged at the Court Registry on 28 November 2016, the applicant requested, on the basis of Article 66 of the Rules of Procedure, that certain information contained in the application and the annexes thereto be omitted from the documents to which the public has access.
24
On 1 February 2017, the Council lodged its defence.
25
By documents lodged at the Court Registry on 24 and 10 February 2017, respectively, the European Parliament and the European Commission sought leave to intervene in the present case in support of the form of order sought by the Council.
26
By documents lodged at the Court Registry on 8 March 2017, the applicant requested that certain information contained in the application and the annexes thereto be treated as confidential with regard to the Parliament and the Commission if those institutions were to be granted leave to intervene. The applicant attached a non-confidential version of those documents to that request.
27
On 20 April 2017, the applicant lodged her reply.
28
By document lodged at the Court Registry on 17 May 2017, the applicant requested that certain information contained in the reply and the annexes thereto be treated as confidential with regard to the Parliament and the Commission if those institutions were to be granted leave to intervene. The applicant attached a non-confidential version of those documents to that request.
29
By order of 8 June 2017, FV v Council (T‑750/16, not published, EU:T:2017:420), the Parliament and the Commission were granted leave to intervene in support of the form of order sought by the Council. Since, in accordance with Article 144(2) of the Rules of Procedure, the applicant requested that certain information contained in the abovementioned pleadings and the annexes thereto be treated as confidential, that order provisionally restricted the communication of procedural documents to the Parliament and the Commission to non-confidential versions, pending the submission of any observations by those institutions on the requests for confidential treatment.
30
By document lodged at the Court Registry on 28 June 2017, the Commission contested the request for confidential treatment of the application and the annexes thereto. The Parliament did not object to that request.
31
On 17 July 2017, the Council lodged its rejoinder.
32
On 19 and 12 July 2017 respectively, the Parliament and the Commission lodged their statements in intervention.
33
By document lodged at the Court Registry on 21 August 2017, the applicant requested that certain information contained in the rejoinder and the annexes thereto be treated as confidential with regard to the Parliament and the Commission and attached a non-confidential version of those documents to that request.
34
By document lodged at the Court Registry on 1 September 2017, the Council stated that it had no observations to make on the statements in intervention of the Parliament and of the Commission.
35
By documents lodged at the Court Registry on 5 September 2017, the applicant submitted her observations on the statements in intervention of the Parliament and of the Commission.
36
By document lodged at the Court Registry on 25 September 2017, the Commission contested the request for confidential treatment of the rejoinder and the annexes thereto. The Parliament did not object to that request.
37
By order of 26 January 2018, the President of the Second Chamber of the Court granted, in part, the applicant’s requests for confidential treatment, set a time limit for her to submit a non-confidential version of the application, the rejoinder and the annexes thereto and stated that, following service of the non-confidential versions of those documents on the Commission, the Commission would be given a period within which to supplement its statement in intervention with any further observations.
38
On 7 March 2018, the Commission supplemented its statement in intervention with further observations.
39
By document lodged at the Court Registry on 22 March 2018, the Council stated that it had no observations to make on the Commission’s supplementary observations.
40
On 5 April 2018, the applicant lodged observations on the Commission’s supplementary observations.
41
On 6 April 2018, the Court Registry notified the parties of the close of the written part of the procedure.
42
By letter of 24 April 2018, the applicant made a reasoned application, under Article 106 of the Rules of Procedure, to be heard during the oral stage of the procedure.
43
On a proposal from the Second Chamber, the Court decided, on 16 May 2018, pursuant to Article 28 of its Rules of Procedure, to refer the case to a chamber sitting in extended composition.
44
On a proposal from the Judge-Rapporteur, the Court (Second Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of its Rules of Procedure, requested the parties to respond in writing to certain questions and to lodge certain documents. The parties complied with those requests within the prescribed period.
45
The parties presented oral argument and answered the questions put by the Court at the hearing on 10 July 2018.
46
The applicant claims that the Court should:
–
annul the decision of 8 December 2015 and, if necessary, the decision of 19 July 2016 rejecting her complaint;
–
order the Council to pay damages as compensation for the material and non-material damage suffered;
–
order the Council to bear all the costs.
47
The Council contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
48
The Parliament contends that the Court should dismiss the action.
49
The Commission contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
III. Law
A. Subject matter of the action
50
In the context of her claims, the applicant seeks the annulment of the decision of 8 December 2015 and, ‘if necessary’, the annulment of the decision of 19 July 2016 rejecting the complaint. She submits that her application is admissible not only in that it is directed against the decision of 8 December 2015, but also in that it is directed against the decision rejecting the complaint, in so far as the latter decision contains elements which are new in relation to the decision of 8 December 2015.
51
The other parties to the dispute have not contested the admissibility of the application for annulment of the two decisions referred to above.
52
It must be borne in mind that, according to settled case-law, the administrative complaint, as referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. In those circumstances, an action, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8), except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged (judgment of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraph 26).
53
Indeed, every decision which is a straightforward rejection of a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged, and accordingly the claims directed against that decision without content independent from the initial decision must be regarded as being directed against the initial act (see judgment of 19 June 2015, Z v Court of Justice, T‑88/13 P, EU:T:2015:393, paragraph 141 and the case-law cited).
54
An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new matters of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (judgment of 15 September 2017, Skareby v EEAS, T‑585/16, EU:T:2017:613, paragraph 18).
55
In the present case, it must be noted, first of all, that the complaint and the action before the Court were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations.
56
Next, it must be pointed out that the decision rejecting the complaint changes neither the meaning nor the scope of the decision of 8 December 2015 placing the applicant on leave in the interests of the service pursuant to Article 42c of the Staff Regulations. Moreover, the decision rejecting the complaint supplements the statement of reasons for the decision of 8 December 2015 in relation to the assessment of the applicant’s ability to acquire new competences and to adapt to the changing work environment and, in the context of that assessment, takes into account factual matters which were not available on 8 December 2015, the date on which the decision to place the applicant on leave in the interests of the service was adopted. The Court refers, in that connection, to the applicant’s staff reports for the years 2014 and 2015, which, according to the explanations provided by the Council, were drawn up after the decision of 8 December 2015, but prior to the decision rejecting the complaint.
57
Accordingly, it must be concluded that the only act adversely affecting the applicant in the present case is the decision of 8 December 2015 placing her on leave in the interests of the service pursuant to Article 42c of the Staff Regulations (‘the contested decision’); however, the legality of the contested decision will be assessed by taking into account the statement of reasons set out in the decision rejecting the complaint.
B. The claim for annulment
58
In support of her claim for annulment, the applicant puts forward five pleas: the first is a plea of illegality directed against Article 42c of the Staff Regulations, the second alleges infringement of that provision and of the Staff Communication and also manifest errors of assessment, the third alleges infringement of the right to be heard, the fourth alleges breach of the duty to have regard for the welfare of officials and the fifth alleges misuse of powers.
1.
The first plea, alleging the illegality of Article 42c of the Staff Regulations
(a)
Preliminary remarks
59
The applicant submits that Article 42c of the Staff Regulations is unlawful since it infringes the principle of equality before the law and the principle of non-discrimination on grounds, inter alia, of age, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) and Article 1d of the Staff Regulations.
60
In that context, the applicant argues that Article 42c of the Staff Regulations, in that it applies expressly to officials and servants ‘at the earliest five years before [their] pensionable age’, introduces a difference in treatment on grounds of age as defined by Article 2(2)(a) of Directive 2000/78. According to the applicant, that difference in treatment is not objectively and reasonably justified by a legitimate aim within the meaning of Article 6(1) of Directive 2000/78. Moreover, even if Article 42c of the Staff Regulations were to be regarded as pursuing such a legitimate aim, the methods used to attain it are neither appropriate nor necessary within the meaning of Article 6(1) of Directive 2000/78.
61
The Parliament, the Council and the Commission dispute the applicant’s arguments and contend that the present plea should be rejected.
62
As a preliminary point, it is necessary to determine the provisions in the light of which the plea of illegality raised by the applicant must be examined.
63
In that regard, it must be noted that the principle of equal treatment is a general principle of EU law, enshrined in Article 20 of the Charter of Fundamental Rights, of which the principle of non-discrimination laid down in Article 21(1) thereof is a particular expression (judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 29).
64
Moreover, Article 51(1) of the Charter of Fundamental Rights states that the provisions of that charter are addressed, in particular, to the institutions, bodies, offices and agencies of the European Union with due regard for the principle of subsidiarity.
65
It follows that the legality of Article 42c of the Staff Regulations, which was introduced into the Staff Regulations by Regulation No 1023/2013, must be assessed in the light of the higher rule represented by Article 21(1) of the Charter of Fundamental Rights, referred to in the applicant’s arguments, which prohibits any discrimination on grounds, inter alia, of age.
66
As regards the applicant’s reliance on Directive 2000/78, it is appropriate to set out, first of all, the relevant provisions of that directive.
67
Article 1 of Directive 2000/78, entitled ‘Purpose’, provides:
‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’
68
Article 2 of Directive 2000/78, entitled ‘Concept of discrimination’, provides, in paragraphs 1 and 2 thereof, as follows:
‘1.   For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2.   For the purposes of paragraph 1:
(a)
direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b)
indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i)
that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary …’
69
Article 6 of Directive 2000/78, entitled ‘Justification of differences of treatment on grounds of age’, provides in paragraph 1 thereof:
‘1.   Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
Such differences of treatment may include, among others:
(a)
the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b)
the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c)
the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.’
70
Next, it must be recalled that it follows from the third paragraph of Article 288 TFEU that directives are binding, as to the result to be achieved, upon the Member States to which they are addressed. It follows that Directive 2000/78, as is stated moreover in Article 21 thereof, is addressed to the Member States, not to the institutions. Accordingly, the provisions of that directive cannot be treated, as such, as imposing obligations on the institutions in the exercise of their legislative or decision-making powers (see, to that effect and by analogy, judgments of 9 September 2003, Rinke, C‑25/02, EU:C:2003:435, paragraph 24, and of 24 May 2008, Belfass v Council, T‑495/04, EU:T:2008:160, paragraph 43) and cannot, as such, form the basis of a plea that Article 42c of the Staff Regulations is unlawful (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 52).
71
However, even though Directive 2000/78 cannot, as such, be a source of obligations for the EU institutions in the exercise of their legislative or decision-making powers to regulate the employment relationships between themselves and their members of staff, the fact remains that the rules or principles laid down in or derived from that directive can be relied on as against those institutions when those rules or principles themselves simply appear to be the specific expression of fundamental rules of the Treaties and of general principles which are directly applicable to those institutions (see, to that effect, judgment of 14 December 2016, Todorova Androva v Council and Others, T‑366/15 P, not published, EU:T:2016:729, paragraph 34 and the case-law cited).
72
The Court has already recognised that Directive 2000/78 gives specific expression, in the field of employment and occupation, to the prohibition of discrimination on grounds of age, which is a general principle of EU law (see, to that effect, judgment of 13 November 2014, Vital Pérez, C‑416/13, EU:C:2014:2371, paragraph 24 and the case-law cited).
73
It follows that, although the provisions of Directive 2000/78 cannot, as such, form the basis of the plea that Article 42c of the Staff Regulations is unlawful, they may serve as a source of inspiration for determining the obligations of the EU legislature in the context of the civil service of the European Union, while taking into account the latter’s particular features. It is in that manner that the Court will, in the present case, take into consideration Directive 2000/78.
74
As regards the applicant’s reliance upon Article 1d of the Staff Regulations, it must be borne in mind that that provision prohibits all discrimination, in particular that on grounds of age, in the application of the Staff Regulations. That provision was inserted into the Staff Regulations by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of Officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1).
75
In so far as Article 1d of the Staff Regulations is contained in the same legislative measure as Article 42c of the Staff Regulations, that is to say in the Staff Regulations, and is, therefore, of the same rank as the latter article in the hierarchy of norms, that provision does not constitute a rule in the light of which the legality of Article 42c of the Staff Regulations can be assessed. Moreover, the applicant has clarified that the reference to Article 1d of the Staff Regulations was made only in so far as that provision lays down the general principle of equality before the law and the principle of non-discrimination on grounds, inter alia, of age.
76
In the light of the foregoing considerations, it must be concluded that the legality of Article 42c of the Staff Regulations must be assessed in the light of Article 21(1) of the Charter of Fundamental Rights while taking into consideration, within the limits set out in paragraph 73 above, Directive 2000/78.
77
As has already been pointed out (see paragraph 63 above), Article 21(1) of the Charter of Fundamental Rights lays down the principle of non-discrimination, which constitutes a particular expression of the principle of equal treatment enshrined in Article 20 thereof.
78
The Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified (see judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 30 and the case-law cited).
79
It is necessary to examine, in the first place, whether Article 42c of the Staff Regulations establishes a difference in treatment on grounds of age and, if so, whether that difference in treatment is nevertheless compatible with Article 21(1) of the Charter of Fundamental Rights in that it satisfies the criteria set out in Article 52(1) thereof (see, to that effect, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 35).
(b)
The existence of a difference in treatment on grounds of age
80
It must be recalled that Article 42c of the Staff Regulations is applicable ‘at the earliest five years before the … pensionable age’ of the officials concerned. The Council stated that that provision was applicable to officials in the 55 to 66 age range. It is apparent from the regulatory framework applicable and from the explanations provided by the Commission in the context of its written answer to a question from the Court that that age range is determined on the basis of the reasoning set out below.
81
So far as concerns officials who entered the service before 1 January 2014, it is necessary to take into consideration the fifth subparagraph of Article 22(1) of Annex XIII to the Staff Regulations, which provides:
‘For officials in service before 1 January 2014 pensionable age to be taken into consideration for all references to the pensionable age in these Staff Regulations shall be determined in accordance with the above provisions, save as otherwise provided in these Staff Regulations.’
82
That pensionable age varies between 60 and 65 depending on the age of the official on 1 May 2014, as is apparent from the content of the first four subparagraphs of Article 22(1) of Annex XIII to the Staff Regulations.
83
So far as concerns officials who entered the service after 1 January 2014, the pensionable age is 66 in accordance with point (a) of the first paragraph of Article 52 of the Staff Regulations.
84
It follows that, since leave in the interests of the service may be applied to officials who have 10 years of service and who are, at the earliest, five years from pensionable age, such leave potentially concerns officials between the age of 55 (for those who were at least 60 years of age on 1 May 2014 and whose pensionable age was therefore 60 years) and the age of 66 (for those who were recruited after 1 January 2014 and whose pensionable age is therefore 66 years).
85
Since Article 42c of the Staff Regulations applies only to officials within the 55 to 66 age range and does not apply to younger officials who do not fall within that age range, that provision establishes a difference in treatment on grounds of age.
86
It should be noted that the Council expresses doubts as to whether Article 42c of the Staff Regulations may be covered by the concept of discrimination within the meaning of Article 2 of Directive 2000/78, in so far as it does not refer to a ‘particular age’, but to the pensionable age of the officials concerned, which may vary. In the Council’s view, it is, therefore, a measure accompanying retirement intended to mitigate the abruptness of retirement and not to discriminate on the basis of one particular age as against another. In support of that reasoning, the Council also notes that the application of Article 42c of the Staff Regulations is subject to a second condition unconnected with age, that of the existence of at least ten years of service.
87
Those arguments put forward by the Council concern the justification for the difference in treatment on grounds of age, which is set out in Article 42c of the Staff Regulations, and do not call in question the existence of that difference in treatment. Since that provision applies only to officials within a particular and clearly identified age range, it introduces a difference in treatment based directly on age, notwithstanding the fact that the age range referred to above is determined according to the pensionable age of the officials concerned. The question whether that difference in treatment constitutes discrimination prohibited by Article 21 of the Charter of Fundamental Rights is a question separate from that of the existence of a difference in treatment.
88
Moreover, and again in response to the Council’s arguments set out in paragraph 86 above, it must be found that the fact that Article 42c of the Staff Regulations lays down other conditions unrelated to age, such as the condition relating to the length of service of the officials concerned and the condition relating to the existence of ‘organisational needs linked to the acquisition of new competences’, does not counteract the fact that where those conditions are fulfilled, officials falling within the age range at issue are treated differently from officials who do not fall within that range.
89
According to the case-law, for the EU legislature to be accused of infringing the principle of equal treatment, it must have treated comparable situations differently, thereby subjecting some persons to disadvantages as opposed to others (see judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 39 and the case-law cited). It follows from that case-law that it is necessary to ascertain, in the present case, whether the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations entails a disadvantage for officials falling within the age range at issue as opposed to officials who do not fall within that age range (see, to that effect, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 33).
90
In the present case, the officials falling within the age range at issue and therefore potentially subject to the measure provided for in Article 42c of the Staff Regulations may be compelled, against their wishes, to change their administrative status, in so far as they will cease to be in ‘active employment’ within the meaning of Article 36 of the Staff Regulations and will be placed on ‘leave in the interests of the service’. Moreover, there will be no further career development for those officials, since, under point (b) of the sixth paragraph of Article 42c of the Staff Regulations, they will not be entitled to advancement to a higher step or promotion in grade.
91
Officials who are not subject to the application of Article 42c of the Staff Regulations do not suffer such disadvantages with regard to their career.
92
Moreover, officials placed on leave in the interests of the service indisputably suffer a reduction in their professional income resulting in particular from the fact that they cease to receive the basic salary, which is replaced by an allowance provided for in the seventh paragraph of Article 42c of the Staff Regulations. Under that provision, the allowance is calculated in accordance with Annex IV to the Staff Regulations, which means that officials placed on leave in the interests of the service receive a monthly allowance equal to their basic salary for the first three months of application of the measure, a monthly allowance equal to 85 % of their basic salary from the fourth to the sixth months of application of the measure and a monthly allowance equal to 70 % of the basic salary from the seventh month until the end of the period of leave, that is to say until pensionable age. According to the ninth paragraph of Article 42c of the Staff Regulations, that allowance is not to be subject to a correction coefficient. Furthermore, the financial loss referred to above is potentially aggravated by the fact that the officials concerned are not entitled to advancement to a higher step or promotion in grade, as already noted.
93
Officials who do not fall within the age range at issue, and to whom Article 42c of the Staff Regulations therefore cannot be applied, do not suffer the financial disadvantages identified in paragraph 92 above.
94
In the light of the foregoing considerations, it must be held that Article 42c of the Staff Regulations establishes a difference in treatment on grounds of age.
(c)
Compliance with the criteria set out in Article 52(1) of the Charter of Fundamental Rights
95
According to Article 52(1) of the Charter of Fundamental Rights, any limitation on the exercise of the rights and freedoms recognised by the 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 European Union or the need to protect the rights and freedoms of others.
96
In the present case, it must be held that the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations is provided for by ‘law’, within the meaning of Article 52(1) of the Charter of Fundamental Rights, since that provision stems from Regulation No 1023/2013 (see, to that effect, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 37).
97
Moreover, it must be noted that the difference in treatment referred to above concerns a question of limited scope in the context of the EU civil service, namely that of placing on leave in the interests of the service certain officials who fulfil a number of conditions, including that relating to age. Consequently, that difference in treatment ‘respects the essential contents’ of the principle of non-discrimination for the purposes of Article 52(1) of the Charter of Fundamental Rights (see, to that effect, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 38 and the case-law cited).
98
In support of that conclusion, it must be noted that the second paragraph of Article 42c of the Staff Regulations provides that the total number of officials placed on leave in the interests of the service each year cannot be higher than 5 % of the officials in all institutions who retired the previous year. In the light of that ceiling and the conditions of application of Article 42c of the Staff Regulations, laid down in the first paragraph of that provision, it is therefore apparent that the annual number of officials who may be placed on leave in the interests of the service is very limited, as is also clear from the written responses of the Parliament, the Council and the Commission to a question put by the Court. By way of example, the Council stated that, within that institution, four officials had been placed on leave in the interests of the service in each of the years 2015, 2016 and 2017 out of a total of 2757 officials in service at the Council as at 31 December 2017.
99
The Court will now examine the question whether the two remaining conditions provided for by Article 52(1) of the Charter of Fundamental Rights which may be relied on to justify the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations are fulfilled in the present case. Those conditions are the condition relating to whether the difference in treatment met an objective of general interest recognised by the European Union and the condition relating to proportionality.
(1) The question whether the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations meets an objective of general interest recognised by the European Union
100
The Council, supported by the Parliament and the Commission, argues, in essence, that the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations pursues three objectives of general interest in the framework of staff policy. In the first place, that difference in treatment pursues the objective of optimising the institutions’ investment in vocational training by allowing them to focus that investment on officials who still have a reasonable period of employment before retirement. In the second place, the difference in treatment referred to above pursues the objective of supporting officials nearing retirement who are unable to acquire new competences and to adapt to the changing work environment within the institutions. In the third place, that difference in treatment pursues, in essence, the objective of maintaining an age structure that is balanced between young officials and older officials, which, in turn, favours the hiring and promotion of those young officials and an exchange of experience and innovation, as well as geographical diversity.
101
The applicant disputes the existence of the three objectives referred to above. She argues that the only objective pursued by Article 42c of the Staff Regulations is that of reducing the costs and the number of staff of the institutions ‘by getting rid’ of officials who are closest to retirement and highly paid. That objective does not constitute a legitimate ‘employment policy, labour market and vocational training’ objective, within the meaning of Article 6(1) of Directive 2000/78, justifying the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations.
102
In the first place, it is necessary to determine whether the objectives relied on by the institutions were pursued. In that regard, it is appropriate to take into account the provisions of Article 42c of the Staff Regulations and, where appropriate, the general context thereof, which make it possible to identify the underlying aim of the difference in treatment on grounds of age established thereby (see, by analogy, judgments of 16 October 2007, Palacios de la Villa, C‑411/05, EU:C:2007:604, paragraphs 56 and 57; of 21 July 2011, Fuchs and Köhler, C‑159/10 and C‑160/10, EU:C:2011:508, paragraph 39; and of 6 November 2012, Commission v Hungary, C‑286/12, EU:C:2012:687, paragraph 58).
103
As regards the first objective relied on, that of optimising investment in vocational training, it must be pointed out, first of all, that the application of Article 42c of the Staff Regulations is subject to the condition that there exist ‘organisational needs linked to the acquisition of new competences’. The reference to the ‘acquisition of new competences’ demonstrates the relationship between the abovementioned provision and vocational training.
104
Next, it is clear from the file and, in particular, from the European Council conclusions of 7 and 8 February 2013 that Regulation No 1023/2013 and, consequently, Article 42c of the Staff Regulations were adopted in a context of budgetary restraint for the European public administration, in which the Member States wished to improve the efficiency and performance of that administration and there was a gradual decrease in the number of staff of the institutions, amounting to 5 % for the period 2013 to 2017.
105
Moreover, it must be borne in mind that the considerations set out in the first, third, seventh and twelfth recitals of Regulation No 1023/2013 refer, first, to the need for the European Union to continue to be equipped with a high-quality public administration (first recital) which is able to perform the tasks conferred on the institutions in the context of a decrease in the number of staff (third recital), secondly, to the need to optimise the management of human resources (seventh recital) and, thirdly, making reference to the abovementioned European Council conclusions, to the need to improve efficiency and effectiveness, the need to adjust to the changing economic context and the effort to ensure cost-efficiency (twelfth recital).
106
The abovementioned recitals of Regulation No 1023/2013 demonstrate the EU legislature’s intention to pursue the objective of effectively managing expenditure relating to the European public administration in terms of cost-efficiency, thus making it possible to maintain the high level of quality of that administration and ultimately enabling the European Union to achieve its objectives, implement its policies and perform its tasks in a context of budgetary restraint and a decrease in the number of staff of the institutions. In the light of that finding and the considerations set out in paragraph 103 above, the Court concludes that it has been established that the EU legislature pursued, by means of the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations, the objective of optimising investment in vocational training for officials.
107
Without it being necessary to determine whether the other two objectives relied on by the institutions were pursued, in the second place, it is appropriate to examine whether the first objective relied on, the existence of which has been established, constitutes an objective ‘of general interest recognised by the Union’ within the meaning of Article 52(1) of the Charter of Fundamental Rights.
108
The first objective relied on is aimed, in essence, at the sound management of public money in terms of cost-efficiency, in a context of budgetary restraint and a decrease in the number of staff of the institutions. In that regard, it should be noted that, pursuant to Article 310(5) TFEU, the European Union budget is to be implemented in accordance with the principle of sound financial management. Moreover, Article 30(1) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), provides that appropriations are to be used in accordance with the principle of sound financial management, namely in accordance with the principles of economy, efficiency and effectiveness. The second subparagraph of Article 30(2) of Regulation No 966/2012 states that the principle of efficiency concerns the best relationship between resources employed and results achieved. It follows from those provisions that the EU legislature’s objective of ensuring, by means of the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations, the optimisation of the institutions’ expenditure on vocational training constitutes an objective ‘of general interest recognised by the Union’.
109
Moreover, since the first objective relied on relates to the institutions’ vocational training policy, it falls within the scope of the first subparagraph of Article 6(1) of Directive 2000/78, which mentions, among the legitimate aims which may justify differences of treatment on grounds of age introduced by national measures, that relating to vocational training. It follows that, also on the basis of the abovementioned directive, which serves as a source of inspiration for determining the obligations of the EU legislature in the present case (see paragraph 73 above), the first objective relied on constitutes an objective of ‘general interest recognised by the Union’ within the meaning of Article 52(1) of the Charter of Fundamental Rights (see, by analogy, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraphs 42 and 43).
110
In the light of the foregoing considerations, it must be concluded that the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations meets at least one objective of general interest recognised by the European Union for the purposes of Article 52(1) of the Charter of Fundamental Rights.
111
That conclusion is not called into question by the applicant’s arguments set out in paragraph 101 above. Indeed, irrespective of the issue, raised in those arguments, of whether the objective of reducing the costs and the number of staff of the institutions may constitute, as such, an objective of general interest recognised by the European Union, the fact remains that the applicant fails to show that it constitutes the only objective pursued by Article 42c of the Staff Regulations. In that regard, it must be recalled that the existence of, at the very least, one other legitimate aim pursued by the EU legislature, in this case the objective of optimising investment in vocational training for officials, has been established.
112
Since the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations meets at least one objective of general interest recognised by the European Union, it is necessary to examine whether that difference in treatment observes the principle of proportionality within the meaning of Article 52(1) of the Charter of Fundamental Rights (see, to that effect, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 39).
(2) Proportionality
113
The examination of the proportionality of the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations involves ascertaining whether that difference in treatment is appropriate for attaining the objective pursued and does not go beyond what is necessary in order to attain it (see, to that effect, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 44).
114
In that regard, by analogy with the broad discretion given to a national legislature so far as concerns the definition of measures capable of achieving a particular aim in the field of social and employment policy (judgments of 16 October 2007, Palacios de la Villa, C‑411/05, EU:C:2007:604, paragraph 68; of 5 March 2009, Age Concern England, C‑388/07, EU:C:2009:128, paragraph 51; and of 9 September 2015, Unland, C‑20/13, EU:C:2015:561, paragraph 57), the EU legislature must be given broad discretion in the definition of measures capable of achieving an objective of general interest in the framework of staff policy. In the light of that broad discretion, the review by the Court relates, in the present case, to whether it did not appear unreasonable for the EU legislature to consider that the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations may be appropriate and necessary in order to achieve the legitimate aim relied on (see, by analogy, judgments of 16 October 2007, Palacios de la Villa, C‑411/05, EU:C:2007:604, paragraph 72; of 12 January 2010, Petersen, C‑341/08, EU:C:2010:4, paragraph 70; and of 9 September 2015, Unland, C‑20/13, EU:C:2015:561, paragraph 65).
115
As regards the first objective relied on, relating to the optimisation of investment in vocational training, it must be recalled that Article 42c of the Staff Regulations was adopted in a context of budgetary restraint and of a decrease in the number of staff of the institutions. As is apparent from the file, there was a gradual decrease of 5 % in the number of staff over the period 2013 to 2017, affecting all EU institutions, bodies and agencies. The abovementioned provision was also adopted in the context of a desire to improve the efficiency and effectiveness of the European public administration in terms of cost-efficiency, as is apparent, in particular, from the twelfth recital of Regulation No 1023/2013.
116
The Council stated that, in such a context, and in order to ensure that the decreasing number of staff had duties which developed, the institutions had to modify their working methods and require officials to adapt and acquire new competences on a regular basis. Moreover, the computerisation and dematerialisation of procedures provided further opportunities, which led to a reduction in the need for lower-skilled jobs. According to the Council, all those circumstances require the institutions to invest heavily in the continuing vocational training of their officials.
117
The Council argued that, in the light of those considerations, Article 42c of the Staff Regulations allows the institutions to focus investment in vocational training on officials who still have a reasonable length of service before retirement and to offer a form of early retirement to officials at the end of their careers.
118
It cannot be denied that, where there is a need for officials to acquire new competences and, consequently, a need for the institutions to invest in vocational training in a context of budgetary restraint and a decrease in the number of staff, the placing on leave of officials approaching pensionable age would make the funds relating to their vocational training available for the provision of vocational training to younger officials, who have a longer career before them within the institutions. It follows that the placing on leave of such officials contributes to the optimisation of investment in vocational training, in that it serves to improve the relationship between the costs relating to those investments and the benefits obtained by the institutions. It must, therefore, be concluded that, in view of the broad discretion enjoyed by the EU legislature (see paragraph 114 above), the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations constitutes an appropriate means of attaining the first objective pursued by the EU legislature.
119
As regards the assessment of whether the abovementioned difference in treatment goes beyond what is necessary for achieving its objective, that difference of treatment must be viewed against its legislative background and account must be taken both of the hardship that it may cause to the officials concerned and the benefits derived from it by, in particular, the institutions (see, to that effect and by analogy, judgment of 5 July 2017, Fries, C‑190/16, EU:C:2017:513, paragraph 53).
120
As regards the benefits derived by the institutions, it should be noted that the optimisation of investment in vocational training, pursued by the difference in treatment on grounds of age, helps the institutions, ultimately, to continue to perform their tasks in a context of budgetary restraint and a decrease in the number of staff.
121
Moreover, when the abovementioned difference in treatment is viewed in the context of Article 42c of the Staff Regulations and the Staff Regulations in general, it should be observed that the placing of an official on leave in the interests of the service is, in the final analysis, a staff management tool at the disposal of the institutions, since such leave constitutes a further administrative status which officials may be given, in addition to the other administrative statuses comprising, according to Article 35 of the Staff Regulations, active employment, secondment, leave on personal grounds, non-active status, leave for military service and parental or family leave.
122
Moreover, it should be noted that the Staff Regulations contain no provisions constituting an ‘alternative’ to the measure provided for in Article 42c of the Staff Regulations. In particular, and in so far as the applicant refers to Article 51 of the Staff Regulations, relating to incompetence, it must be pointed out that that provision is intended to establish and penalise the unsatisfactory performance by an official of his tasks and operates irrespective of the considerations relating to the interests of the service, whereas the measure adopted under Article 42c of the Staff Regulations operates in the interests of the service.
123
As an additional staff management tool, Article 42c of the Staff Regulations is, ipso facto, beneficial to the institutions.
124
As regards the damage caused to the officials concerned, account should be taken of the considerations set out in paragraphs 90 to 92 above.
125
At the same time, it must be pointed out that, as the Council also rightly argues, those officials are placed on leave in the interests of the service on reasonable financial terms. It should be recalled, in particular, that the officials concerned receive until the end of the leave a monthly allowance, the calculation of which, set out in paragraph 92 above, is not considered by the Court to be unreasonable. Moreover, as is apparent from the eighth paragraph of Article 42c of the Staff Regulations, the officials concerned may continue to contribute to the pension scheme and thereby increase the amount of their pension. The condition relating to ten years of service, laid down by Article 42c of the Staff Regulations, also contributes to the proportionality of the measure laid down by that provision, in that, as the Parliament rightly notes, that condition results in the application of that measure being restricted to officials whose salary level and pension rights are such that the financial disadvantages of being placed on leave are mitigated. Lastly, it must be borne in mind, first, that the measure provided for in Article 42c of the Staff Regulations is subject to a series of conditions laid down in the first paragraph of that provision, secondly, that the adoption of that measure is not obligatory for the institutions, which have broad discretion as regards its adoption, and, thirdly, that the total annual number of officials to whom that measure may be applied is capped at 5 % of the officials in all institutions who retired the previous year (see paragraph 98 above).
126
Having regard to all the considerations set out in paragraphs 120 to 125 above, it does not appear to be unreasonable for the EU legislature to consider it necessary to provide that leave in the interests of the service be restricted solely to officials falling within the age range at issue, to the exclusion of those officials not falling within that range, in order to achieve the legitimate aim of optimising investment in vocational training. It must, therefore, be concluded that the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations is proportionate to the first legitimate aim relied on.
127
Since the proportionality of the difference in treatment on grounds of age has been established in relation to the first legitimate aim relied on, it must be concluded that that difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations does not infringe Article 21(1) of the Charter of Fundamental Rights, inasmuch as it fulfils the criteria set out in Article 52(1) thereof. Consequently, the plea of illegality relied on as against Article 42c of the Staff Regulations must be rejected.
2.
The second plea, alleging infringement of Article 42c of the Staff Regulations, infringement of the Staff Communication and manifest errors of assessment
128
The applicant submits that the contested decision infringes Article 42c of the Staff Regulations and the Staff Communication and is vitiated by manifest errors of assessment. In that context, she argues, in particular, that the Council failed to demonstrate the interests of the service which it had sought to serve in applying Article 42c of the Staff Regulations to her, failed to identify the actual organisational needs which would require the acquisition of new competences and failed to identify the new competences which she was not in a position to acquire. On the contrary, it focused, in particular, on her allegedly negative staff reports and on her conduct within the service, that is to say on matters which do not fall within the scope of Article 42c of the Staff Regulations. The applicant also disputes the conclusion in the contested decision that she did not have the ability to adapt to the changing requirements of the work.
129
The Council disputes the applicant’s arguments and contends that the present plea in law should be rejected.
(a)
Determination of the legal framework applicable in the present case
130
It must be borne in mind that Article 42c of the Staff Regulations expressly provides that the placing of the officials concerned on leave is to be carried out in the interests of the service. Moreover, that article requires, as a condition for its application, the existence of ‘organisational needs linked to the acquisition of new competences within the institutions’.
131
It should also be recalled that, by means of the Staff Communication, the Secretary-General of the Council provided information on the implementation of Article 42c of the Staff Regulations by that institution (see paragraph 8 above) and indicated, in particular, the content of ‘organisational needs linked to the acquisition of new competences’ with respect to that institution. It is clear from that communication and from the clarifications provided in the context of the decision rejecting the complaint (see, in particular, paragraphs 44 and 64 of that decision) that, for the purposes of applying Article 42c of the Staff Regulations, the Council takes into account the following two factors: first, it takes into account ‘organisational needs linked to the acquisition of new competences’ within the institution, inasmuch as it assesses whether there are any needs requiring the acquisition of new competences by the officials concerned and, secondly, it takes into account the ability of those officials to acquire such competences and to adapt to the changing work environment.
132
The Council stated, in paragraph 44 of the decision rejecting the complaint and in its defence before the Court, that the assessment of the second factor identified in paragraph 131 above necessarily involved an element of projection, in that it was necessary to assess, on the basis of the information available to the appointing authority at the time when it took its decision, whether it was reasonable to presume that the officials concerned would experience difficulties in the future in adapting to the changing work environment and to the requirements of the service.
133
It is apparent from the legal framework, constituted in the present case by Article 42c of the Staff Regulations, as clarified by the Staff Communication, which is binding on the Council, that the assessment of the two factors identified in paragraph 131 above is a forward-looking assessment, as that institution also confirmed at the hearing, in response to a question from the Court.
134
The applicant challenges the legality of the Council’s interpretation of Article 42c of the Staff Regulations. First, she argues that the Council, by means of the Staff Communication, distorted that provision of the Staff Regulations by providing that the placing of officials on leave in the interests of the service is to be applied to ‘officials who experience difficulties in acquiring new competences and in adapting to the changing work environment’. Secondly, she argues that, on account of that unlawful distortion, the Council’s reasoning, set out in paragraph 76 of the defence, according to which it is necessary ‘to assess the potential of an official to acquire new competences and to adapt to the changing work environment’, must also be rejected since it is based on assumptions which are not supported by the wording of Article 42c of the Staff Regulations.
135
Those arguments put forward by the applicant necessitate a review of whether the Council’s approach, as described in the Staff Communication and explained in the decision rejecting the complaint and in the Council’s written pleadings before the Court, is compatible with the higher rule represented by Article 42c of the Staff Regulations (see, to that effect, judgment of 22 September 2015, Barnett v EESC, F‑20/14, EU:F:2015:107, paragraph 52 and the case-law cited).
136
In that regard, it must be borne in mind that Article 42c of the Staff Regulations expressly refers to the ‘interests of the service’. As the Council stated in the context of its written answer to a question put by the Court, ‘organisational needs linked to the acquisition of new competences’, also referred to in that article, constitute a specific aspect of the interests of the service.
137
Since ‘organisational needs’ are linked to the ‘acquisition of new competences’ and constitute only one specific aspect of the interests of the service in the context of Article 42c of the Staff Regulations, it must be concluded that the wording of that provision does not prevent the Council from taking into account, in the context of ‘organisational needs linked to the acquisition of new competences’, the ability of the officials concerned ‘to acquire new competences and to adapt to the changing work environment’, in accordance with the Staff Communication.
138
Nor is it contrary to the ratio legis of Article 42c of the Staff Regulations to take into account in that way a characteristic specific to the officials concerned. Since it has been established that that provision pursues the objective of optimising the institutions’ investments linked to vocational training in terms of cost-efficiency, it appears compatible with that objective for the Council to take into account, for the purpose of determining the costs of investments relating to vocational training, the ability of the officials concerned to acquire new competences and to adapt to the changing work environment. Taking into account in that way a characteristic specific to the officials concerned is also justified by the fact that the application of Article 42c of the Staff Regulations has unfavourable consequences for those officials and may be imposed on them against their will (see paragraphs 90 to 92 above). It follows that taking into account in that way a characteristic specific to the officials concerned makes the application of that provision less rigid for them.
139
It must, therefore, be concluded that the Council’s assessment of the ability of the officials concerned to acquire new competences and to adapt to the changing work environment is compatible with Article 42c of the Staff Regulations .
140
Moreover, since the purpose of that assessment is the pursuit of the interests of the service, the assessment must necessarily relate to the future ability of the officials concerned to acquire new competences and to adapt to the changing work environment and must, therefore, include an element of projection, as the Council rightly argues. Otherwise, that assessment would not pursue the interests of the service. Accordingly, it must also be concluded that the element of projection included in the assessment of the second factor identified in paragraph 131 above is compatible with Article 42c of the Staff Regulations.
141
On the basis of the foregoing considerations, the applicant’s arguments set out in paragraph 134 above must be rejected.
142
It is clear from the legal framework constituted by Article 42c of the Staff Regulations and the Staff Communication that the Council was, in the present case, required to assess two factors in the context of ‘organisational needs linked to the acquisition of new competences’, that is to say, in the first place, the future organisational needs of the institution requiring the acquisition of new competences and, in the second place, the applicant’s ability to acquire the new competences previously identified, with the aim of assessing, ultimately, the cost-efficiency of investing in her vocational training, in accordance with the objective pursued by Article 42c of the Staff Regulations.
(b)
The assessment, in the present case, of future organisational needs
143
As a preliminary point, it should be noted that the Council stated in its pleadings before the Court, referring to paragraph 9(c) of the contested decision, that the appointing authority had taken into account, in the present case, not only changes within the service to which the applicant was assigned, but also the organisational needs of the entire institution, namely the GSC, and that that approach neither contravened Article 42c of the Staff Regulations nor was vitiated by a manifest error of assessment. The applicant has disputed that the Council actually conducted the assessment which it claimed to have carried out.
144
It is, therefore, necessary to examine whether the Council has, as it claims, carried out, in the present case, a forward-looking and genuine assessment of the organisational needs of the service to which the applicant was assigned and also the institution as a whole.
145
Since the assessment of organisational needs concerns the assessment of the interests of the service, it is appropriate to confer a broad discretion on the Council for the purposes of that assessment, it being possible for the Court to call in question the Council’s use of that discretion only in the event of a manifest error of assessment, substantive inaccuracy or misuse of powers (see, to that effect, judgments of 12 December 2000, Dejaiffe v OHIM, T‑223/99, EU:T:2000:292, paragraph 53 and the case-law cited, and of 16 May 2018, Barnett v EESC, T‑23/17, not published, under appeal, EU:T:2018:271, paragraphs 36 and 38).
146
However, even though the judicial review carried out in the present case is of limited scope, it requires that the Council, which adopted the contested decision, must be able to show before the Court that in adopting that decision it actually exercised its discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation in question (see, to that effect and by analogy, judgments of 7 September 2006, Spain v Council, C‑310/04, EU:C:2006:521, paragraph 122, and of 11 July 2007, Wils v Parliament, F‑105/05, EU:F:2007:128, paragraph 75).
147
It follows that the Council must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested decision and on which the exercise of its discretion depended (see, to that effect and by analogy, judgments of 7 September 2006, Spain v Council, C‑310/04, EU:C:2006:521, paragraph 123, and of 11 July 2007, Wils v Parliament, F‑105/05, EU:F:2007:128, paragraph 76).
148
Since the Council must assess the cost-efficiency of investing in the applicant’s vocational training, the basic facts referred to above logically included facts relating to the nature and extent of future reforms.
149
In the present case, in the first place, it is clear from the file that the applicant, in her note of 1 December 2015 (see paragraph 13 above), inter alia, argued that the appointing authority had not established the existence of ‘organisational needs linked to the acquisition of new competences’ justifying placing her on leave against her wishes and that it had not identified the new competences which should be acquired.
150
In the second place, it is apparent from the contested decision that the only relevant paragraphs addressing issues relating to the assessment of future organisational needs are paragraphs 9(a) and (c).
151
In paragraph 9(a) of the contested decision, the appointing authority stated that the [confidential] Unit to which the applicant had been assigned was adapting its working methods in line with the reforms also carried out in other services of the [confidential] Directorate. The appointing authority broadly identified those reforms as consisting, inter alia, in the implementation of ‘new flexible procedures’ and ‘activities’, the ‘digitisation of workflows’ and the ‘adoption of interinstitutional IT solutions’. The appointing authority stated that the implementation of those reforms required that staff have appropriate know-how and a certain degree of flexibility.
152
The Court considers that the content of paragraph 9(a), referred to above, does not demonstrate that a genuine and forward-looking assessment of organisational needs at the level of both the [confidential] Unit and the [confidential] Directorate was carried out by the appointing authority. Indeed, the information provided in that paragraph demonstrates neither that the reforms referred to will take place in the future, nor that the nature and extent of those reforms was taken into account. In other words, that information neither demonstrates that the Council took into account future organisational needs as it was required to do in accordance with its forward-looking approach nor demonstrates that the Council assessed the nature and extent of those reforms in order for it to be able to assess the cost-efficiency of the applicant’s training needs.
153
As regards paragraph 9(c) of the contested decision, it must be noted that the Council merely states that the services of the GSC ‘are continually adapting to the nature and increasing frequency of the meetings which [it] must host and to the changing dynamics of the legislative process’. That information does not demonstrate that the Council carried out a forward-looking assessment of the organisational needs of the GSC as a whole, as it claimed to have done (see paragraph 143 above). Even assuming that the Council did carry out such an assessment, it has not been demonstrated that that assessment took into account the nature and extent of future reforms. The considerations set out in paragraph 9(c) of the contested decision seem to concern the examination of the applicant’s potential for mobility, as is apparent from the first and the last sentence of that paragraph.
154
The remaining provisions of paragraph 9 of the contested decision, which contain the statement of reasons for the application of Article 42c of the Staff Regulations to the applicant, do not relate to the assessment of future organisational needs. Paragraph 9(b) of the contested decision provides information on the applicant’s career background and contains an assessment of her adaptability based on data relating to her employment history up to the date of adoption of the contested decision. Paragraph 9(d) and (e) of the contested decision contains the assessment of the applicant’s potential for mobility and concludes, in point (e), that she lacked that potential. However, the assessment of that potential does not constitute an assessment of future organisational needs, since it relates to whether the applicant could be transferred to another service, and does not relate to whether it is cost-efficient to provide vocational training to her to enable her to adapt to future reforms. In any event, it is clear from the communication from the Personnel Unit of 17 November 2015 (see paragraph 11 above), on the basis of which the assessment of the applicant’s potential for mobility was carried out, that that potential was also affected by the personal choices made by the applicant, who, according to that communication, had refused a number of posts which were available. No assessment of future organisational needs was contained in that communication.
155
In the third place, it must be noted that, in her complaint against the contested decision, the applicant again disputed, in particular, the existence of a reform of a nature which would justify the application of Article 42c of the Staff Regulations with respect to her. However, the decision rejecting the complaint does not address that claim by the applicant and, more generally, contains no evidence that the Council carried out a genuine and forward-looking assessment of organisational needs. That institution limited its analysis to assessing the applicant’s ability to acquire new competences and to adapt to the changing work environment and based its conclusion that she lacked that ability on the argument, summarised in paragraph 33 of the decision rejecting the complaint, that ‘someone who is struggling to do her ordinary work is not in a position to cope with the effort involved in adapting to a changing reality’.
156
In the fourth place, before the Court, in response to the applicant’s arguments relating to the failure to identify actual organisational needs requiring the acquisition of new competences (see paragraph 128 above), the Council, in its defence, merely states, with reference to paragraph 9(c) of the contested decision, that ‘the changes in working methods within the GSC and the resulting greater need for staff adaptability, including in respect of officials in function group AST, are not purely hypothetical, but constitute a reality which the appointing authority must take into account’. That bald assertion by the Council in no way demonstrates that a genuine and forward-looking assessment of organisational needs was carried out and presents no material information additional to that provided in paragraph 9(c) of the contested decision, itself insufficient to demonstrate that such an assessment was carried out (see paragraph 153 above). The Council’s arguments in the rejoinder are also limited to a reference to paragraph 9 of the contested decision.
157
Moreover, the Council’s reference before the Court to the communication from the Head of the [confidential] Unit of 26 October 2015 (see paragraph 11 above), concerning a reorganisation of the [confidential] Service which took place in 2014, following the arrival of a new [confidential], provides no useful information on the issue of the existence of a genuine and forward-looking assessment of the organisational needs of that service, of the [confidential] Unit or of the GSC as a whole. As is also apparent from the abovementioned communication of 26 October 2015, and as confirmed by the Council in the rejoinder, the reference to a reorganisation which took place in the past served only to support the conclusion relating to the applicant’s alleged inability to acquire new competences and to adapt to the changing work environment.
158
In the fifth place, having regard to the Council’s arguments in paragraph 42 of the rejoinder, which might be understood to mean that that institution took into account, for the purposes of the assessment in the present case of future organisational needs, the decrease in the number of staff which it experienced, the Council clarified at the hearing, following a question from the Court, that this was not the case. Moreover, it is not apparent from the content of either the contested decision or the decision rejecting the complaint that that decrease was taken into account.
159
In the light of the foregoing considerations, it must be held that the Council has not established that the contested decision was adopted by actually exercising its discretion concerning the existence of future organisational needs requiring the acquisition of new competences by the applicant, since the Council has not demonstrated that it carried out a forward-looking assessment and took into account, first, the nature and extent of the reforms which were to take place and, secondly, the organisational needs of the institution as a whole, as it claims to have done. By contrast, it is apparent from the file that the Council in fact based the contested decision solely on the assessment of the applicant’s ability to acquire new competences. However, since that assessment was not linked to a genuine and forward-looking assessment of organisational needs, the Council incorrectly used Article 42c of the Staff Regulations, which requires that the institution concerned take into account objective elements relating to its ‘organisational needs’. If that institution fails to do so, the leave provided for in the abovementioned provision runs the risk of being disciplinary in nature for the officials concerned by that measure.
160
In those circumstances, it must be concluded that the Council exceeded the limits of the broad discretion available to it in the present case and that, on that basis, the second plea must be upheld. It follows that the Court must annul the contested decision, by which the applicant was placed on leave in the interests of the service, and there is no need to examine the other pleas raised by her.
C. The claim for damages
161
The applicant submits that the contested decision caused her material and non-material damage.
162
She argues that the material damage consists essentially in a loss of income and that the Council should draw all the appropriate inferences from the annulment of the contested decision and of the decision rejecting the complaint.
163
In particular, she argues that the Council should pay her, first, the difference between her net remuneration (basic salary and allowances) and the allowance paid under Article 42c of the Staff Regulations (as determined by Annex IV to the Staff Regulations), for the period from January to March 2016 and, secondly, the difference between her net remuneration (basic salary and allowances) and her pension, as from 1 April 2016. For the purposes of those calculations, it is necessary to take into account the adverse effect on the applicant’s career progression, which entailed a loss not only of entitlement to advancement to higher salary steps but also of an opportunity for promotion before the fixed retirement age of 65. Lastly, default interest on all those sums should be applied at the rate set by the European Central Bank (ECB) increased by 2 percentage points. The applicant assesses the damage in the amount of EUR 121 101.72, that amount not taking into account, in particular, default interest, the acquisition on 1 April 2018 and 1 April 2020 of two new salary steps and career progression through promotion.
164
In respect of the material damage, the applicant also relies on financial difficulties caused by the two decisions referred to above. [confidential] The applicant assesses the material damage resulting from those factors at EUR 30000, subject to adjustment.
165
[confidential]
166
[confidential]
167
[confidential]
168
[confidential]
169
The applicant claims that the non-material damage suffered cannot be compensated for solely by the judgment ordering annulment and assesses the compensation for that damage at EUR 70000ex æquo et bono.
170
The Council, supported by the Commission, contends that the claim for damages should be dismissed and, in the alternative, argues that the amounts claimed by the applicant for the alleged damage appear to be excessive and should be reduced to a fairer level.
171
It is clear from settled case-law that, in an application for damages brought by an official or servant, the European Union can be held liable only if a number of conditions are fulfilled: the conduct alleged against the institutions must be unlawful, actual damage must have been incurred and a causal link must exist between the conduct and the alleged damage (see judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 102 and the case-law cited).
172
In the present case, the applicant has alleged material damage and non-material damage.
1.
Material damage
173
The material damage alleged by the applicant has two elements: the loss of income resulting from her being placed on leave in the interests of the service and the financial consequences resulting from her inability to repay the debts which she incurred.
174
As regards the first element, the applicant argues that ‘the defendant must draw all the appropriate inferences from the annulment of the contested decisions’. She then explains those inferences.
175
It follows that the compensation sought by the applicant in respect of the material damage is indissociable from the obligations incumbent on the Council under Article 266 TFEU resulting from the annulment of the contested decision.
176
In that regard, the Court points out that, in accordance with Article 266 TFEU, the institution whose act has been declared void by a Court of the European Union is to be required to take the necessary measures to comply with the decision annulling that act in order to make reparation for the illegality which it committed. Thus, in principle, the administration must itself put the official concerned in exactly the same position in which he would have been today in the absence of the illegality found. To that effect, in order to correct in time the consequences which that illegality may have had, and on condition that the legitimate expectations of those concerned are properly respected, the administration may adopt an act having a retroactive nature (see, to that effect, judgment of 13 September 2011, AA v Commission, F‑101/09, EU:F:2011:133, paragraph 41).
177
Consequently, since the compensation sought by the applicant in respect of the first element of the material damage suffered is indissociable from the obligations incumbent on the Council resulting from the annulment of the contested decision, it must be held that the applicant’s claim is premature and cannot, therefore, be accepted (see, to that effect, judgment of 17 November 2017, Teeäär v ECB, T‑555/16, not published, EU:T:2017:817, paragraph 59).
178
As regards the second element, first, it must be held that the applicant does not establish that her financial loss is actual and certain. [confidential] Those factors do not establish certain damage but rather hypothetical damage.
179
Secondly, it should be noted that, according to settled case-law, in order to found a claim for compensation, the damage must be a sufficiently direct consequence of the conduct complained of (judgments of 4 October 1979, Dumortier and Others v Council, 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79, EU:C:1979:223, paragraph 21; of 25 June 1997, Perillo v Commission, T‑7/96, EU:T:1997:94, paragraph 41; and of 27 June 2000, Meyer v Commission, T‑72/99, EU:T:2000:170, paragraph 49). It is for the person claiming damages to adduce evidence of the causal link (judgments of 18 September 1995, Blackspur and Others v Council and Commission, T‑168/94, EU:T:1995:170, paragraph 40 and the case-law cited, and of 14 October 2004, I v Court of Justice, T‑256/02, EU:T:2004:306, paragraph 49). In the present case, the applicant has not established the existence of a sufficiently direct link between the reduction in her income resulting from the contested decision and her inability to repay the debts which she incurred. That inability may stem from several factors outside the Council’s sphere of influence and, in particular, from the applicant’s financial management, for which the Council cannot be held liable.
180
In the light of the foregoing considerations, the applicant’s claim for compensation for material damage must be rejected.
2.
Non-material damage
181
The EU judicature has stated that the annulment of an unlawful act of the administration may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material damage which that measure may have caused, unless the applicant shows that he has sustained non-material damage that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment (see judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 131 and the case-law cited).
182
In the present case, the elements set out in paragraphs 166 and 167 above, allegedly causing non-material damage, are linked to the adoption of the contested decision. In that regard, the Court considers that, in the present case, the annulment of that decision constitutes appropriate compensation for the alleged non-material damage deriving from those elements.
183
As regards the non-material damage set out in paragraph 165 above, it has no connection with the contested decision [confidential].
184
As regards the non-material damage set out in paragraph 168 above, it must be noted that the applicant has not established the existence of a sufficiently direct link between the reduction in her income resulting from the contested decision and [confidential].
185
In the light of the foregoing considerations, the applicant’s claim for compensation for non-material damage must also be dismissed. Accordingly, her claim for damages must be dismissed in its entirety.
IV. Costs
186
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.
187
Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
188
The Parliament and the Council are to bear their own costs, in accordance with Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Second Chamber, Extended Composition)
hereby:
1.
Annuls the decision of 8 December 2015 by which FV was placed on leave in the interests of the service;
2.
Dismisses the action as to the remainder;
3.
Orders the Council of the European Union to bear its own costs and to pay the costs incurred by FV;
4.
Orders the European Parliament and the European Commission to bear their own costs.
Prek
Buttigieg
Schalin
Berke
Costeira
Delivered in open court in Luxembourg on 14 December 2018.
[Signatures]
Table of contents
I. Background to the dispute
II. Procedure and forms of order sought
III. Law
A. Subject matter of the action
B. The claim for annulment
1. The first plea, alleging the illegality of Article 42c of the Staff Regulations
(a) Preliminary remarks
(b) The existence of a difference in treatment on grounds of age
(c) Compliance with the criteria set out in Article 52(1) of the Charter of Fundamental Rights
(1) The question whether the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations meets an objective of general interest recognised by the European Union
(2) Proportionality
2. The second plea, alleging infringement of Article 42c of the Staff Regulations, infringement of the Staff Communication and manifest errors of assessment
(a) Determination of the legal framework applicable in the present case
(b) The assessment, in the present case, of future organisational needs
C. The claim for damages
1. Material damage
2. Non-material damage
IV. Costs
(
*1
)	Language of the case: French.
(
1
)	Confidential information redacted.