JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

11 April 2016

FN and Others

v

European Police College (CEPOL)

‛Civil service — CEPOL staff — Temporary staff — Contract staff — Place of employment corresponding to the seat of CEPOL — Relocation of CEPOL to Budapest (Hungary) — Corresponding change in the place of employment of members of staff — Contractual consequences — Need for consent from members of staff — Correction coefficient applicable to the new place of employment — Legitimate expectations — Principle of sound administration’

Application:

under Article 270 TFEU, in which FN, FP, FQ and four other applicants (FK, FL, FM and FO) seek, inter alia, annulment of Decision No 17/2014/DIR of the Director of the European Police College (CEPOL) (‘the Agency’) of 23 May 2014 concerning the relocation of CEPOL to Budapest (Hungary) (‘the contested decision’); annulment of the various decisions of CEPOL of 28 November 2014 rejecting their complaints, lodged individually between 8 and 21 August 2014, against the contested decision; compensation from CEPOL for the material and non-material damage suffered.

Held:

The action is dismissed. FN, FP and FQ are to bear their own costs and are ordered to pay the costs incurred by the European Police College.

Summary

Officials — Temporary and contract staff — Contractual nature of the employment relationship — Contractual freedom — Limits — Obligations stemming from the specific mission of general interest entrusted to the institutions, bodies, offices and agencies of the Union — Transfer of the seat of an EU agency — Reassignment of staff — Consent not necessary

Officials — Resignation — Transfer of the seat of an EU agency — Fact that a staff member does not report to his new place of work — Conduct tantamount to resignation

The consent of the person concerned to an act adversely affecting him is not such as to cause that act to cease to be an act adversely affecting him. Secondly, a decision which establishes the principle that staff of an EU agency are to take up their duties, although purportedly implementing an act of general application of the Council and of the Parliament, must be regarded as a decision adversely affecting the applicants in that it amends their place of employment under conditions which are, allegedly, unlawful. (see paras 47, 49) See: Judgment of 24 February 1981in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, para. 14 Judgment of 11 July 1996in Ortega Urretavizcaya v Commission, T‑587/93, EU:T:1996:100, para. 28

The fact that a member of staff does not report to his place of work may be regarded as the expression by that member of staff of conduct of a person who has resigned which is, therefore, tantamount to resignation for the purposes of Article 47 of the Conditions of Employment of Other Servants. In that regard, the functioning of the administration of the European Union entails an obligation for any EU civil service official or member of staff to accept any assignment, provided that it is consistent with the category and grade of his post and in accordance with the requirements of the service, throughout the European Union in any place of employment within the institution or agency in which he took up his duties. Furthermore, pursuant to Article 20 of the Staff Regulations, applicable by analogy to temporary and contract staff by virtue of Articles 11 and 81 of the Conditions of Employment of Other Servants, EU officials and members of staff are to reside either in the place where they are employed or at no greater distance therefrom as is compatible with the proper performance of their duties. In those circumstances, the authority empowered to conclude contracts of employment of an EU agency cannot be criticised for having, in implementation of the decision of the EU legislature to transfer that agency’s seat, asked its staff to take up their duties in that new location. Consequently, also taking into account the agency’s broad discretion in the organisation and structuring of its services, the authority is entitled, in the face of possible refusal by one of its members of staff to take up duties at the new seat which the EU legislature has established, to decide, exercising that broad discretion, that such a refusal is tantamount to resignation. (see paras 58, 60-62) See: Judgments of 24 February 1981in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paras 23 and 37, and 6 July 1983in Geist v Commission, 285/81, EU:C:1983:192, para. 15 Judgment of 9 April 2003in Walton v Commission, T‑155/01, EU:T:2003:105, paras 31-34 Judgment of 10 September 2014in Tzikas v ERA, F‑120/13, EU:F:2014:197, para. 82 and the case-law cited therein

The basis of the employment relationship between a member of the temporary or contract staff and the institution or agency concerned is the employment contract. Therefore, the consensus between the contracting parties, as expressed, inter alia, by the signing of the employment contract, gives rise to obligations of a contractual nature which restrict the power of the authority empowered to conclude contracts of employment to act unilaterally outside the cases expressly provided for by the Conditions of Employment of Other Servants. However, the extent of that contractual freedom and the conditions for the exercise thereof are regulated and limited by the rights and obligations laid down in those Conditions of Employment or, as the case may be, resulting from the application by analogy of provisions of the Staff Regulations, with the result that the contracting partners cannot, via contractual means, evade obligations stemming from the specific mission of general interest entrusted to the institutions, bodies, offices and agencies of the Union. Regarding the question whether the place of employment may be unilaterally amended by the authority when it is mentioned in the employment contract of a member of the temporary or contract staff, it should be noted that, at any time, the EU legislature or the Heads of State or governments of the Member States may change the seats of the various institutions and agencies of the Union. It should also be borne in mind that the obligation for the institutions and agencies of the Union 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 staff member concerned. Furthermore, the authority empowered to conclude contracts of employment may, in the interests of the service, change the place of employment of a member of the temporary staff without it being necessary to obtain the consent of the staff member concerned, though that staff member must still be heard. Regarding contract staff, irrespective of whether Article 7 of the Staff Regulations is applicable by analogy to such staff, the authority empowered to conclude contracts of employment may also decide to assign them and reassign them to another place, since only local staff, who are specifically recruited under contract in a particular place, are entitled to object to a change in their place of employment because for them the continuity of their place of work is part of their actual conditions of employment. (see paras 68-70, 72, 73) See: Judgments of 18 October 1977in Schertzer v Parliament, 25/68, EU:C:1977:158, para. 40; 24 February 1981in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paras 28 and 34; 14 July 1988in Aldinger and Virgili v Parliament, 23/87 and 24/87, EU:C:1988:406, para. 17, and 19 June 1992in V v Parliament, C‑18/91 P, EU:C:1992:269, para. 39 Judgment of 11 July 1996in Aubineau v Commission, T‑102/95, EU:T:1996:104, para. 29 Judgments of 4 June 2009in Plasa v Commission, F‑52/08, EU:F:2009:54, para. 77; 12 February 2014in Bodson and Others v EIB, F‑73/12, EU:F:2014:16, para. 52 and the case-law cited therein, and 16 July 2015in Murariu v EIOPA, F‑116/14, EU:F:2015:89, paras 101 and 103

The reassignment of an EU official or member of staff does not constitute an abnormal and unforeseeable event in his career although it may cause him family and financial difficulties, it being understood that the administration may be required to meet needs of the service which compel it to decide on such a reassignment. That is the case, inter alia, where the places of employment of the institution or agency to which the official or member of staff is assigned are spread over several Member States or located in third States. The same applies, a fortiori, when it is the EU legislature that has decided to transfer the seat of an agency of the Union from one Member State to another Member State. The obligation for the institutions and agencies of the Union to assign their staff solely in the interests of the service and their corresponding right to impose of their own motion changes to the place of employment not desired by the staff member concerned apply not only with regard to officials but also with regard to members of the temporary staff. Furthermore, the functioning of the administration of the European Union entails an obligation for any EU official or member of staff to accept any assignment, provided that it is consistent with the category and grade of his post and in accordance with the requirements of the service, throughout the European Union in any place of employment within the institution in which he took up his duties, it being understood that constraints of a personal and family nature to which those conditions may give rise in the operation of the service are compensated for by the advantages and privileges conferred by the European civil service. (see paras 81-84) See: Judgments of 14 July 1977in Geist v Commission, 61/76, EU:C:1977:127, para. 34; 24 February 1981in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paras 23 and 37; 23 January 1986in Rasmussen v Commission, 173/84, EU:C:1986:29, para. 25; 14 July 1988in Aldinger and Virgili v Parliament, 23/87 and 24/87, EU:C:1988:406, para. 17, and order of 11 February 1999in Costacurta v Commission, C‑75/98 P, EU:C:1999:73, not published, para. 49 Judgment of 11 July 1996in Aubineau v Commission, T‑102/95, EU:T:1996:104, para. 30 Judgment of 14 September 2011in Marcuccio v Commission, T‑236/02, EU:T:2011:465, para. 248