62016TJ0573_RES
Case T‑573/16
(publication by extracts)
PT
v
European Investment Bank
Judgment of the General Court (Fourth Chamber), 3 July 2019
(Civil service — EIB Staff — Organisation of departments — Dispensation from service — Access to email and IT connections — Pre-litigation procedure — Admissibility — Legal certainty — Right to be heard — Presumption of innocence — Final report of OLAF — Obligation to state reasons — Liability — Material harm — Non-material harm)
EU law — Principles — Legal certainty — EU legislation — Requirement of clarity and foreseeability
(see paragraphs 233-237)
Officials — Staff of the European Investment Bank — Organisation of departments — Dispensation from service of a member of staff — Decisions releasing a member of staff from the performance of his duties without specifying the applicable legal basis or allowing the member of staff to determine their temporal scope — Not permissible — Breach of the principle of legal certainty
(Staff Regulations of the European Investment Bank, Arts 16, 22, 23 and 39)
(see paragraphs 238-258)
Résumé
In the judgment in PT v EIB (T‑573/16), delivered on 3 July 2019, the General Court upheld the action of a member of staff of the European Investment Bank (EIB) against decisions by which the EIB gave him a ‘dispensation from service’ for a total period of more than two and a half years, and blocked access to his email and to the EIB’s IT connections. In its decision, the Court annulled the contested decisions and ordered the EIB to pay damages of EUR 25000 in respect of the non-material harm suffered as a result of those decisions.
The applicant was the subject of a number of decisions which, for an extended period, deprived him of any opportunity to perform his duties, whilst maintaining his salary. Those decisions sought, on the one hand, to facilitate a return to normality against a background of tensions which were prejudicial to the proper functioning of the department to which the applicant was assigned and, on the other, to ensure the smooth conduct of investigations relating to allegations of blackmail and attempted blackmail made against the applicant or to allow the administration to take action on the basis of the reports which resulted from those investigations. In his action, the applicant invoked a breach of the principle of legal certainty and of the obligation to state reasons, in so far as he was not in a position to understand the effect on his rights and obligations of four of those decisions, which he maintained included concepts and words in respect of which he was not in a position to assess either the scope or the precise meaning and, in the case of the first two of those decisions, did not set out the legal basis used.
With regard, first of all, to the compatibility of the failure to identify the legal basis used in the first two decisions with the principle of legal certainty and the obligation to state reasons, the Court pointed out that those decisions did not refer to any legal provision or contain any information which might have enabled the applicant to identify that legal basis. In that regard, the Court observed that the concept of ‘dispensation from service’ itself does not have an express basis in any provision of EU law and that it had not been demonstrated that it was a common, or even known, practice within the EIB in particular and the EU institutions in general. The Court also noted that the EIB had for a long time failed to reply to the applicant’s requests for clarification as to the legal basis used, merely informing him that he had not been suspended. The Court thus concluded that the first two decisions were vitiated by a breach of the principle of legal certainty and a failure to state reasons.
With regard, next, to the question of the extent to which the principle of legal certainty obliges an EU institution or body to specify the duration of an individual measure such as the dispensation from service to which the applicant was subject, the Court took the view that it was up to the EIB to put the applicant in a position to assess with a sufficient degree of precision how long it was intended that his dispensation from service would last. That requirement was particularly important because an extended dispensation from service, such as that to which the applicant was subject, is not only equivalent to a decision to suspend a person, in so far as it deprives him of the opportunity to perform his duties, but is also liable to have a significant adverse impact on his work, administrative and financial situation. In so far as such a dispensation from service prohibits the person concerned from working, it deprives him of the opportunity to be properly appraised and, consequently, of the opportunity to be paid allowances or to be eligible for a promotion on the basis of merit. As no duties are assigned to the person concerned, he may, in addition, plead detriment to his non-material interests and breach of the principle of correspondence between grade and post. However, unlike a suspension decision, the maximum duration of which is three months unless criminal proceedings have been brought, the third and fourth decisions were not subject to any specific temporal limitation. It is true that those decisions referred to the temporary nature of the dispensation from service and essentially stated that its expiry was conditional upon the occurrence of a future event, namely the drawing up of the European Anti-Fraud Office’s investigation report. However, the date on which such an event would occur could not be ascertained with a sufficient degree of precision. The Court thus concluded that the third and fourth decisions were vitiated by a breach of the principle of legal certainty.