ORDER OF THE GENERAL COURT (Ninth Chamber)
19 June 2023 (*)
(Civil service – Members of the contract staff – Change of place of employment – Addendum to the contract of employment – Purely confirmatory measure – Inadmissibility)
In Case T‑327/22,
PS, represented by S. Rodrigues and A. Champetier, lawyers,
applicant,
v
European External Action Service (EEAS), represented by A. Ireland and S. Falek, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, H. Kanninen (Rapporteur) and M. Sampol Pucurull, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
makes the following
Order
1        By his action based on Article 270 TFEU, the applicant, PS, seeks annulment of the addendum to his contract of employment signed on 23 July 2021 (‘the addendum of 23 July 2021’) and, so far as necessary, annulment of the decision of the European External Action Service (EEAS) of 22 February 2022 rejecting his complaint of 20 October
2021 (‘the decision rejecting the complaint’).
Background to the dispute
2        On 16 February 2020, the applicant entered the service of the EEAS as a member of the contract staff for an indefinite period, in accordance with Article 3a of the Conditions of Employment of Other Servants of the European Union. Under the second paragraph of Article 2 of the applicant’s contract of employment, his place of assignment was in Washington (United States). Under the third paragraph of that article, the EEAS reserved the right to reassign the applicant to ‘another place’, solely in the interests of the service. According to the same paragraph, the applicant was required to act on such a reassignment.
3        On 23 March 2021, the Head of Division ‘HR.2 – Selection and recruitment’ of the EEAS (‘the HR.2 Division’) sent the applicant an email informing him of the decision to assign him to the vacant architect post No 339626, within the ‘Field Operations’ team of the ‘BA.SI.4’ Division at the EEAS headquarters in Brussels (Belgium), with effect from 27 April 2021 (‘the decision of 23 March 2021’). According to that decision, the applicant would retain his contract of employment.
4        On 30 March 2021, the applicant’s representative informed the Head of the HR.2 Division that, in principle,
the applicant accepted the proposal, but that the applicant requested that he be given until the end of August 2021 to be able to organise his move to Brussels.
5        On 4 May
2021, the Head of the HR.2 Division notified the applicant of his decision to reassign the applicant to the EEAS headquarters in Brussels with effect from 1 July 2021 (‘the decision of 4 May 2021’).
6        On
7 July 2021, the Head of the HR.2 Division informed the applicant that it had finally been decided that he would take up his duties in Brussels on 1 September 2021 (‘the decision of 7 July 2021’).
7        Subsequently, the applicant signed the addendum of 23 July
2021. According to that addendum, the applicant’s place of employment was to be in Brussels, with effect from 1 September 2021.
8        On 20 October 2021, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the addendum of 23 July 2021.
9        On 22 February 2022, the authority authorised to conclude contracts (‘the AACC’) adopted the decision rejecting the complaint, by which the complaint of 20 October 2021 was rejected as inadmissible.
Forms of order sought
10      The applicant claims, in essence, that the Court should:
–        annul the addendum of 23 July 2021 and, so far as necessary, the decision rejecting the complaint;
–        order the EEAS to pay the costs.
11      In the plea of inadmissibility, the EEAS contends, in essence, that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
Law
12      Under
Article 130(1) and (7) of the Rules of Procedure of the General Court, the General
Court may, at the defendant’s request, give a decision on inadmissibility without going to the substance of the case.
13      In the present case, since the EEAS has requested a ruling on inadmissibility, and the Court considers that it has sufficient information available to it from the material in the file, the Court has decided to give a ruling without taking further steps in the proceedings.
14      As a preliminary point, it must be noted that the AACC rejected the complaint lodged against the addendum of 23 July 2021 as inadmissible on the ground that the latter was a measure that merely confirmed the decision of 23 March 2021, as amended by the decisions of 4 May and 7 July 2021, and that it could no longer be challenged because the time
limit for lodging a complaint had expired.
15      In its plea of inadmissibility, the EEAS relies on the same ground to argue that the action against the addendum of 23 July 2021 is inadmissible. It states that the addendum is not an act adversely affecting the applicant, since it merely confirms the decision of 23 March 2021, according to which the applicant’s new place of employment was Brussels. That decision was subsequently amended, only as regards the date on which the applicant would take up his duties in Brussels, by the decisions of 4 May and 7 July 2021.
16      The EEAS submits that, even in the absence of the addendum of 23 July 2021, the applicant would have been reassigned to Brussels on 1 September 2021, since a decision such as that in the present case, adopted on the basis of the provisions of the contract of employment itself, constitutes a unilateral decision of the AACC adopted solely in the interests of the service. Such a decision does not require the consent of the staff member concerned in order to take effect.
17      The decisions of 23 March, 4 May and 7 July
2021 were not challenged by way of a complaint in due time. Therefore, if the action were considered to be directed against those decisions, it would also have to be dismissed as manifestly inadmissible on the ground that the requirements of the pre-litigation phase have not been complied with.
18      In the application and in his observations on the plea of inadmissibility, the applicant claims that the addendum of 23 July 2021 is an autonomous act amending his contract. In his view, the addendum of 23 July 2021 was issued by the competent authority and contains a definitive position adopted by the administration. Thus, it is a decision which produces binding legal effects capable of affecting his interests.
19      The applicant submits that, since the decision to reassign him to Brussels could be adopted only on the basis of Article 2 of his contract of employment, it would produce effects only if that contract were formally and explicitly amended.
20      In the applicant’s view, the decisions of 23 March, 4 May and 7 July 2021 must be regarded as preparatory acts which express only a mere intention on the part of the EEAS, whereas the addendum of 23 July 2021 lays down the EEAS’ final position reassigning the applicant to Brussels. Consequently, the complaint was lodged, pursuant to Article 90(2) of the Staff Regulations, within the prescribed period, against the decision which, in his view, adversely affected him, namely the addendum of 23 July 2021.
21      It must be noted that the admissibility of an action brought before the Court under Article 270 TFEU and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner and upon the prescribed time limits for that procedure being complied with (see judgments of 6 July 2004, Huygens v Commission, T‑281/01, EU:T:2004:207, paragraph 125 and the case-law cited, and of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 64 and the case-law cited).
22      According to settled case-law, the periods for lodging complaints and bringing actions referred to in Articles 90 and 91 of the Staff Regulations, applicable to members of the contract staff pursuant to Article 117 of the Conditions of Employment of Other Servants of the European Union, are matters of public policy and cannot be left to the discretion of the parties or the Court, which must ascertain, of its own motion if need be, whether they have been complied with. Those periods meet the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, to that effect, judgments of 29 June 2000, Politi v ETF, C‑154/99 P, EU:C:2000:354, paragraph 15, and of
3 March 2022, WV v EEAS, C‑172/20 P, not published, EU:C:2022:155, paragraphs 43 and 45 and the case-law cited).
23      Under Article 90(2) of the Staff Regulations, a member of the contract staff is required to lodge a complaint against the act adversely affecting him or her within three months of the date on which he or she was notified of that act.
24      It must also be noted that only measures the legal effects of which are binding on and capable of directly and immediately affecting the interests of the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment (see judgment of 23 November 2016, Alsteens v Commission, T‑328/15 P, not published, EU:T:2016:671, paragraph 113 and the case-law cited).
25      In that regard, a purely confirmatory measure, such as a decision which was not preceded by a review of the situation of the person concerned and which, therefore, contains no new element in relation to the previous decision adversely affecting the person concerned, which is not therefore replaced but merely confirmed subsequently, cannot be classified as an act adversely affecting the person concerned within the meaning of Article 90(2) of the Staff Regulations (see, to that effect, judgment of 9 March 1978, Herpels v Commission, 54/77, EU:C:1978:45, paragraphs 13 to 15, and order of 19 January 2022, FC v EASO, T‑148/20, not published, EU:T:2022:30, paragraph 49).
26      If a subsequent decision merely confirms an earlier act which itself has already adversely affected the person concerned and which is therefore open to challenge, and the subsequent decision does not contain any new position as compared with the earlier act, annulment of the subsequent decision cannot have any effect on the legal position of the person concerned distinct from that which follows from the annulment of the earlier act. In such a situation, the action must be brought against the earlier act which is the act adversely affecting the person concerned. The subsequent decision cannot have the effect of setting a new time limit for bringing an action (see order of 19 January 2022, FC v EASO, T‑148/20, not published, EU:T:2022:30, paragraph 50 and the case-law cited).
27      In the present case, it is common ground, first, that the applicant did not lodge a complaint within the prescribed period against the decisions of 23 March, 4 May or 7 July 2021 and, second, that he lodged, within the prescribed period, a complaint against the addendum of 23 July 2021.
28      Therefore, in order to rule on the admissibility of the claim for annulment of the addendum of 23 July 2021, it is necessary to ascertain whether that addendum is a measure which merely confirms the decision of 23 March 2021, as amended by the decisions of 4 May and 7 July 2021, or an act adversely affecting the applicant, as the latter maintains.
29      In the present case, by decision of 23 March 2021, the EEAS decided that the applicant would be reassigned from his post in Washington to a vacant post as an architect in Brussels. The decisions of 4 May and 7 July 2021 amend the decision of 23 March 2021 as regards the date of entry into service. The decision of 7 July 2021 definitively determines that the applicant’s entry into service in his new post in Brussels would take place on 1 September 2021. Consequently, it is the decision of 23 March 2021, as amended by the decision of 7 July 2021, which brings about a distinct change in the applicant’s legal position.
30      By contrast, the addendum of 23 July 2021 merely constitutes an implementation of the decision of 23 March 2021, as amended by the decision of 7 July 2021.
31      The addendum of 23 July 2021 merely reiterates that the applicant’s new place of employment is Brussels, and that that change will take effect from 1 September 2021. None of that information is a new element in relation to the applicant’s situation as it stood following the adoption of the decision of 23 March 2021, as amended by the decision of 7 July 2021. The drawing up of the addendum of 23 July 2021 and the signing of that addendum were also not preceded by a review of the applicant’s situation.
32      Accordingly, the addendum of 23 July 2021 constitutes a measure which merely confirms the decision of 23 March 2021, as amended by the decision of 7 July
2021, as regards the applicant’s place of employment and the date of entry into service.
33      That assessment is not invalidated by the applicant’s argument that his consent was necessary under Article 2 of the contract of employment. It is apparent from that article that the AACC may, solely in the interests of the service and in view of the specific nature of the EEAS, unilaterally change the applicant’s place of employment without it being required to seek the applicant’s prior consent. Furthermore, it must be noted that, according to the case-law, first, the obligation for the EU institutions to assign their staff solely in the interests of the service applies even where it is likely to entail a change in the place of employment not desired by the person concerned and, second, reassignment in the interests of the service does not require the consent of the person concerned (see, to that effect, judgment of 20 October
2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 197 and the case-law cited).
34      It follows from all of the foregoing that the action must be dismissed as inadmissible without there being any need to rule separately on the claim for annulment of the decision rejecting the complaint.
Costs
35      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.
36      In the present case, since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the EEAS.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      PS shall pay the costs.
Luxembourg, 19 June 2023.
V. Di Bucci
L. Truchot
Registrar
President
*      Language of the case: English.