ORDER OF THE GENERAL COURT (Seventh Chamber)
20 December 2019 (*)
(Action for annulment — Civil service — Officials — Mission expenses —Act not open to challenge — Act not adversely affecting an official — Irregular nature of the pre-litigation procedure — Premature action — Inadmissibility)
In Case T‑154/19,
ZU, represented by C. Bernard-Glanz, lawyer,
applicant,
v
European External Action Service (EEAS), represented by S. Marquardt and R. Spac, acting as Agents,
defendant,
ACTION based on Article 270 TFEU seeking annulment of the part of the decision of 30 November 2018 by which the EEAS Appointing Authority
rejected the applicant’s complaint of 27 July 2018, inasmuch as it implicitly refused the request concerning mission expenses submitted by the applicant on 26 February 2018,
THE GENERAL COURT (Seventh Chamber),
composed of R. da Silva Passos, President, I. Reine and L. Truchot (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        The applicant, ZU, is an official of the European Commission who, at the time of the facts giving rise to the present dispute, was assigned to the European External Action Service (EEAS), within the Delegation of the European Union to Russia (‘the delegation’), with headquarters in Moscow (Russia).
2        In the course of his duties within the delegation, the applicant completed two missions during February 2018, the first in Sochi (Russia) and the second in Yerevan (Armenia) (‘the missions at issue’). As the end of the first mission and the beginning of the second were separated by non-working days, the delegation granted the applicant’s request for a derogation from the rule that all missions must begin and end at the place of employment of the person concerned, in this case Moscow.
3        On 26 February 2018, the applicant submitted a request via the delegation’s IT system for reimbursement of the expenses incurred in the context of the missions at issue (‘the request of 26 February 2018’), and enclosed statements of those expenses for that purpose.
4        As the delegation did not immediately accede to the request of 26 February 2018, a number of exchanges took place between the applicant and the administration. In particular, on 29 May 2018, the Head of Delegation sent the applicant a note (‘the note of 29 May 2018’), in which, inter alia, he pointed to irregularities in the travel undertaken in the context of the missions at issue, stressed the need for the applicant to provide the boarding passes pertaining to his travel during the period covered by the missions at issue, up to the date of his return to Moscow, and advised him that the delegation would examine any future mission requests from him with utmost caution.
5        On 27 July 2018, the applicant, who was yet to receive reimbursement of the expenses incurred in the context of the missions at issue, submitted a note to the delegation (‘the note of 27 July 2018’) containing the following:
–        a request on the basis of Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) that the Appointing Authority take a decision allowing the competent services to reimburse the costs incurred in connection with the missions at issue;
–        a complaint on the basis of Article 90(2) of the Staff Regulations ‘against [the] EU’s and its officials’ failure to comply with applicable provisions of [those] Staff Regulations [(Article 12a(3), Articles 56, 71, 86 …)], [of the] EU Charter of Fundamental Rights [(]Article 31(1) and (2) and Article 41(1[)], [and of the] principles of good administration and sound financial management’;
–        a request on the basis of Article 24 and Article 90(1) of the Staff Regulations that the appointing authority take relevant action aimed at ‘ensuring that my fundamental and statutory rights are respected and the damage already caused is reversed’.
6        On 30 July 2018, the delegation registered the note of 27 July 2018.
7        By decision of 30 November 2018 (‘the contested decision’), in the first place, the Appointing Authority responded to the request made by the applicant under Article 90(1) of the Staff Regulations concerning the expenses incurred in the context of the missions at issue. The Appointing Authority stated that the applicant had failed to provide the delegation with the boarding passes, even though these were necessary in order to proceed with the requested reimbursement, and invited him to provide all of the required documents, specifying that, should he experience difficulties in gathering certain documents, he could contact the delegation-approved travel agency, which would, in principle, be able to provide him with any missing records. The Appointing Authority also specified that, even though the 90-day period normally set in the delegation’s IT system for submitting requests for reimbursement of mission expenses had expired, the missions at issue had been reopened in the IT system.
8        In the second place, the Appointing Authority noted that the complaint set out in the note of 27 July 2018 concerned the same set of facts as those covered by the request in respect of which it was giving its decision. Noting that there was no final decision concerning the request for reimbursement of expenses incurred in the context of the missions at issue, the Appointing Authority took the view that the complaint was inadmissible.
9        In the third place, the Appointing Authority rejected the applicant’s request based on Article 24 and Article 90(1) of the Staff Regulations on the ground that that request was not substantiated by facts capable of demonstrating that the applicant had suffered threats, insults, defamatory acts or utterances, or any attack on his person or property, by reason of his position or duties, for the purposes of Article 24 of the Staff Regulations.
10      On 28 February 2019, the applicant lodged a complaint against the contested decision.
Procedure and forms of order sought
11      By application lodged with the Court Registry on 11 March 2019, the applicant brought the present action.
12      By separate document lodged with the Court Registry on 22 March 2019, the applicant requested anonymity under Article 66 of the Rules of Procedure of the General Court. By decision of 4 April 2019, the General Court (Third Chamber) granted that request.
13      By separate document lodged with the Court Registry on 28 May 2019, the EEAS raised a plea of inadmissibility under Article 130 of the Rules of Procedure. The applicant submitted his observations on that plea on 15 July 2019.
14      In his observations on the Court’s proposal to join Cases T‑671/18, ZU v Commission, and T‑140/19, ZU v Commission, lodged with the Court Registry on 18 July 2019, the applicant requested that those cases, the present case and Case T‑499/19, ZU v EEAS, be joined.
15      By document lodged with the Court Registry on 24 July 2019, the applicant requested that the proceedings in the present case be stayed, in the light of the request for joinder of the cases referred to in paragraph 14 above and owing to the fact that he was preparing to bring a new action following the rejection of his complaint of 28 February 2019 (see paragraph 10 above) by decision of the Appointing Authority of 28 June 2019.
16      In its observations on the request for a stay of proceedings and on the request for joinder of the cases, lodged with the Court Registry on 7 and 30 August 2019 respectively, the EEAS invited the Court to dismiss those requests.
17      Following changes to the composition of the General Court, the President of the General Court, by decision of 18 October 2019, acting pursuant to Article 27(3) of the Rules of Procedure, reassigned the case to a new Judge-Rapporteur, attached to the Seventh Chamber.
18      By decisions of the President of the Seventh Chamber of the General Court of 22 and 23 October 2019, the applicant’s request for joinder of the cases and his request for a stay of proceedings were rejected.
19      The applicant claims that the Court should:
–        declare the
action admissible;
–        annul the part of the contested decision that rejects the applicant’s complaint contained in the note of 27 July 2018, inasmuch as it implicitly refuses his request of 26 February 2018;
–        order the EEAS to pay the costs.
20      The EEAS contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
Law
21      Under
Article 130 of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without considering the merits of the case. In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the procedure.
22      As regards the plea of inadmissibility, in the first place, the EEAS argues, in essence, that the note of 27 July 2018 has to be regarded as a request, pursuant to Article 90(1) of the Staff Regulations, concerning reimbursement of the expenses incurred in the context of the missions at issue. According to the EEAS, since, by the contested decision, the Appointing Authority did not reject that request, but merely requested the applicant to provide the missing documents, that decision is not an act adversely affecting him.
23      The EEAS maintains that, in any event, assuming that the request for reimbursement of the expenses incurred in the context of the missions
at issue had been rejected, the applicant submitted the complaint referred to in paragraph 10 above but did not wait for the Appointing Authority’s decision on that complaint before bringing the present action. Therefore, the pre-litigation procedure has not been followed. Furthermore, according to the EEAS, those considerations also apply to the applicant’s request for assistance based on Article 24 of the Staff Regulations, assuming that that request has been rejected in the contested decision.
24      In the second place, the EEAS submits that, while the applicant declared in the note of 27 July 2018 that, by that note, he also intended to make a complaint, he does not specify the act adversely affecting him against which that complaint
was directed but merely alleges, incidentally and without providing any detailed reasoning, that the EEAS infringed the principle of good administration and fundamental rights. Furthermore, on the assumption that the applicant’s purported complaint was directed against the note of 29 May 2018, the EEAS maintains that that note is not an act adversely affecting the applicant, inasmuch as it does not contain any decision but merely describes the applicant’s behaviour as inappropriate.
25      In his observations on the plea of inadmissibility, the applicant specifies that his action is directed against the contested decision only to the extent that the Appointing Authority, by that decision, rejected the complaint set out in the note of 27 July 2018. He maintains that that complaint was made following a change in his legal situation resulting, first, from the automatic closure, in the delegation’s IT system, of the request for reimbursement submitted by him on 26 February 2018 and, secondly, from the note of 29 May 2018, which, furthermore, forms the basis for other decisions taken by the Appointing Authority affecting him.
26      Moreover, according to the applicant, the Appointing Authority’s failure to verify the regularity of the delegation’s actions and the measures that it took in the context of the applicant’s arguments pursuant to Article 90(2) of the Staff Regulations concerning, inter alia, the infringement of the principle of good administration, misuse of powers, breach of the rules governing the reimbursement of travel expenses, infringement of the principle of sound financial management and failure to comply with the principle of proportionality brought about a change in his legal situation on the ground that that failure led to the rejection of his request for assistance based on
Article 24 of the Staff Regulations, and of his request based on Article 90(1) of those Staff Regulations for reimbursement of his mission expenses on the basis of statements which he had already submitted to the administration.
27      It must be stated, first of all, that an administrative complaint and the action which follows must both be directed against an act adversely affecting the applicant, for the purposes of Article 90(2) and Article 91(1) of the Staff Regulations. An act adversely affecting an official is one which produces legal effects that are binding on, and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position (see order of 13 September 2013, Conticchio v Commission, T‑358/12 P, EU:T:2013:525, paragraph 21 and the case-law cited). In order to qualify as an act adversely affecting an official, the measure in question must originate from the competent authority and must set out
the administration’s final position in respect of the applicant’s particular situation (see judgment of 9 April 2019, Aldridge and Others v Commission, T‑319/17, not published, EU:T:2019:231, paragraph 42 and the case-law cited).
28      Next, the General Court must, irrespective of the positions taken by the parties, ascertain whether the contested measure is an act adversely affecting the official, which thus constitutes the starting point for the pre-litigation stage provided for in Article 90(2) of the Staff Regulations (see, to that effect, order of 15 December 1998, de Compte v Parliament, T‑25/98, EU:T:1998:300, paragraph 38 and the case-law cited).
29      Lastly, as the Court has consistently held, any action challenging an act adversely affecting an official and originating from the Appointing Authority must, as a general rule, necessarily be preceded by a complaint which has been rejected by an express or implied decision. By virtue of Article 91(2) of the Staff Regulations, an action brought before that preliminary procedure has been completed is premature and therefore inadmissible (see judgment of 18 December 2008, Belgium and Commission v Genette, T‑90/07 P and T‑99/07 P, EU:T:2008:605, paragraph 105 and the case-law cited).
30      In the present case, first, it must be stated that, contrary to what the applicant claims, his request for reimbursement of the expenses incurred in the context of the missions at issue had not been the subject of a definitive refusal by the Appointing Authority when he submitted the note of 27 July 2018.
31      Prior to that date, a number of exchanges had taken place on that subject between the applicant and the delegation’s administration. In particular, in the note of 29 May 2018, the Head of Delegation had stressed the need for the applicant to produce the boarding passes pertaining to
the travel undertaken by him
during the period covered by the missions at issue, up until the date of his return to Moscow. Furthermore, as is apparent from the contested decision, the mere fact that the delegation’s IT system automatically closed the applicant’s request of 26 February 2018 does not constitute a decision by the Appointing Authority, the latter having reopened the period within which the applicant was permitted to submit the necessary documents following the applicant’s request contained in the note of
27 July 2018. Therefore, a decision to reject that request cannot be regarded as having been taken on that date.
32      Secondly, while it is true that, in the note of
27 July 2018, the applicant states that he is submitting not only a request but also a complaint on grounds of infringement by the administration of a number of articles of the Staff Regulations, the Charter of Fundamental Rights and the principles of good administration and sound financial management, he does not, however, identify clearly the act which, implicitly or explicitly, adversely affects him and against which that complaint is directed.
33      On the assumption that the complaint set out in the note of 27 July 2018 was directed against the note of 29 May 2018, it must be pointed out that, as the EEAS has rightly observed, the latter note does not contain any decision by the Appointing Authority concerning the request of 26 February 2018. The purpose of that note was to inform the applicant of irregularities in the travel undertaken in the context of the missions at issue, to stress the need for the applicant to produce the boarding passes pertaining to his travel during the period covered by the missions at issue, up until the date of his return to Moscow, and to advise him that the delegation would examine any future mission requests from him with utmost caution.
34      Furthermore, in so far
as the applicant regards the note of 29 May 2018 as forming the basis for the adoption of other acts adversely affecting him, it must be recalled that preparatory acts do not constitute acts adversely affecting an official and therefore may be challenged only incidentally, in the context of an action brought against acts that are capable of being annulled. While certain purely preparatory measures may adversely affect an official in so far as they may influence the content of a later act that is capable of being annulled, those measures may not form the subject matter of a separate action and must be contested in support of an action directed against that act (see order of 18 December 2003, Gómez-Reino v Commission, T‑215/02, EU:T:2003:352, paragraph 47 and the case-law cited; see also, to that effect, judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 85).
35      It follows that the note of 27 July 2018 cannot be regarded as a complaint directed against an act adversely affecting the applicant with respect to reimbursement of the expenses incurred in the context of the missions at issue. Since such a complaint was not submitted until 28 February 2019 and was not rejected by the Appointing Authority until 28 June 2019 (see paragraphs 10 and 15 above), it must be held that the pre-litigation procedure had not been completed on the date on which the present action was brought.
36      Secondly, in so far as the applicant’s statements concerning the scope of the complaint effectively allege that the administration’s handling of the reimbursement of the expenses incurred in the context of the missions at issue amounts to harassment in his regard, it must be pointed out that the note of 27 July 2018 contains a request for assistance under Article 24 of the Staff Regulations. According to the case-law, that article is intended to protect EU officials against harassment and degrading treatment of any kind not only by third parties, but also by their hierarchical superiors or their colleagues. Having received a request under Article 24 of the Staff Regulations, which is substantiated by at least some evidence of the reality of the attacks of which the official claims to have been the victim, the institution concerned is under an obligation to take the necessary measures (see, to that effect, judgment of 25 October 2007, Lo Giudice v Commission, T‑154/05, EU:T:2007:322, paragraphs 135 and 136). Since the complaint made by the applicant on 28 February 2019 was also directed against the rejection of his request for assistance, the considerations set out in paragraph 35 above also apply to the present action in so far as it relates to the harassment that the applicant claims to have suffered. The action is thus premature in its entirety and, therefore, inadmissible (see the case-law cited in paragraph 29 above).
37      Having regard to all of the foregoing considerations, the plea of inadmissibility raised by the EEAS must be allowed and the present action must be dismissed as being inadmissible.
Costs
38      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. 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 (Seventh Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      ZU shall pay the costs.
Luxembourg, 20 December 2019.
E. Coulon
R. da Silva Passos
Registrar
President
*      Language of the case: English.