JUDGMENT OF THE GENERAL COURT

(Fourth Chamber)

14 September 2011





Case T-236/02





Luigi Marcuccio

v

European Commission

(Referral back to the General Court after annulment – Civil service – Officials – Employment in a third country – Reassignment of post and post holder – Rights of the defence – Actions for damages – Unlimited jurisdiction)

Application: for annulment of the Commission’s decision of 18 March 2002 which reassigned the applicant from the Directorate-General for Development, Commission Delegation in Luanda (Angola), to the Directorate-General for Development in Brussels (Belgium), of all preliminary, connected or consecutive measures, in particular those relating to the recruitment of another official to occupy his post, of the Commission’s notes of 13 and 14 November 2001 and of the opinion or opinions of the External Service Steering Committee, and a claim for allowances in connection with his duties in Angola and damages for harm suffered.

Held: The decision of the Commission of 18 March 2002 which reassigned Mr Luigi Marcuccio from the Directorate-General for Development, Commission Delegation in Luanda (Angola), to the Directorate-General for Development in Brussels (Belgium) is annulled. The application is dismissed as to the remainder. The Commission is ordered to bear its own costs and to pay the costs incurred by Mr Marcucccio.

Summary

1. Procedure – Judgment of the Court of Justice binding on the General Court – Conditions – Referral back following an appeal – Points of law finally decided by the Court of Justice on appeal – Authority of res judicata – Scope

(Statute of the Court of Justice, Art. 61, para. 2; Rules of Procedure of the General Court, Art. 117)

2. Procedure – Introduction of new pleas during the proceedings – Conditions –Application to the procedure following referral back following an appeal – Similar solution for new claims

(Rules of Procedure of the General Court, Arts 48(2) and 120)

3. Officials – Actions – Plea alleging a procedural irregularity – Ineffective plea in the absence of any possibility of achieving a different result in a regular procedure

4. Officials – Organisation of departments – Assignment of staff – Reassignment in the interest of the service – Conditions – Right of the person concerned to be heard

5. Officials – Actions – Acts adversely affecting an official – Definition – Preparatory act – Notes and internal opinions preceding the adoption of a decision – Not included

(Staff Regulations, Arts 90 and 91)

6. Officials – Actions – Unlimited jurisdiction – Disputes of a financial character within the meaning of Article 91(1) of the Staff Regulations – Definition

(Staff Regulations, Art. 91(1))

7. Officials – Actions – Judgment annulling a measure – Effects – Restoration of the previous legal position of the person concerned

(Staff Regulations, Annex X)

8. Officials – Remuneration – Emoluments applicable to officials serving in a third country – Allowance for living conditions – Conditions for granting

(Staff Regulations, Annex X, Art. 10)

9. Officials – Reimbursement of expenses – Emoluments applicable to officials serving in a third country – Rent for official accommodation – Conditions for reimbursement

(Staff Regulations, Annex X, Arts 5, 18 and 23)

10. Officials – Social security – Sickness insurance – Medical expenses – Supplementary sickness insurance scheme for officials serving in a third country

(Staff Regulations, Annex X, Art. 24)

11. Officials – Leave – Annual leave – Officials serving in a third country – Conditions for granting

(Staff Regulations, Annex X, Arts 6 and 8)

12. Officials – Actions – Actions for damages – Annulment of the illegal act in dispute not constituting adequate compensation for non-material damage

(Staff Regulations, Art. 91)

13. Officials – Organisation of departments – Assignment of staff – Transfer from one place of employment to another – Administration’s discretion

14. Officials – Organisation of departments – Assignment of staff – Reassignment of an official in the interests of the service because of relationship difficulties – No non-material damage

15. Officials – Organisation of departments – Assignment of staff – Reassignment – Decision taken while official on sick leave

1. Once the Court of Justice has set aside a judgment or an order and referred the case back to the General Court, that Court is seised, pursuant to Article 117 of the Rule of Procedure, of the case by the judgment of the Court of Justice and must rule again on all the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the Court of Justice and the considerations on which those elements are essentially founded, as those elements have acquired the authority of res judicata.

However, there is nothing in principle to preclude the court to which the case is referred back from making the same assessment as the court of first instance as regards the claims and pleas in law which were not examined in the grounds of the judgment of the Court of Justice. In those circumstances, there is no decision of the Court of Justice on points of law within the meaning of the second paragraph of Article 61 of the Statute of the Court of Justice by which the court to which the case is referred back is bound.

(see paras 83, 86)

See: T-237/00 Reynolds v Parliament [2005] ECR-SC I-A-385 and II-1731, para. 46

2. According to Article 48(2) of the Rules of Procedure of the General Court, applicable by virtue of Article 120 of those rules where the General Court is seised of a case by a judgment of the Court of Justice referring it back, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. It follows that, following the referral judgment of the Court of Justice, the parties are not entitled, in principle, to rely on pleas which were not raised in the procedure which gave rise to the judgment of the General Court set aside by the Court of Justice. That rule applies, a fortiori, to new claims, seeking to alter the subject-matter of the dispute.

(see para. 88)

See: C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-4777, para. 71

T-10/95 Chehab v Commission [1996] ECR-SC I-A-135 and II-419, para. 66

3. A procedural error justifies the annulment of a decision only where the outcome of the administrative procedure might have been different without that procedural error.

(see para. 111)

See: 30/78 Distillers Company v Commission [1980] ECR 2229, para. 26; C-301/87 France v Commission [1990] ECR I-307, para. 31; C-294/95 P Ojha v Commission [1996] ECR I-5863, para. 67

4. A decision to reassign an official which involves moving him, against his will, to another place of employment must be taken with the necessary diligence and with special care, in particular having regard to the personal interests of the official concerned. Such a decision is thus based on a proper assessment which may be challenged. Accordingly, in a situation where the person concerned was not heard in connection with the proposed decision, it cannot be ruled out that the institution’s assessment might have been different if it had given the person concerned the opportunity to express his views and that, accordingly, observance of the rule that the parties should be heard could have influenced the content of the decision. To hold, in such circumstances, that the institution would certainly have adopted the same decision, even after having heard the person concerned, would amount to denying that that person had a genuine right to be heard, since the very essence of that right implies that the person concerned has the possibility of influencing the decision-making process at issue.

Moreover, the right of an official to be heard does not amount to the mere possibility of voicing his opposition, as such, to the reassignment, but entails the possibility of making observations capable of influencing the content of the proposed decision.

(see paras 113-116)

See: C-116/88 and C-149/88 Hecq v Commission [1990] ECR I-599, paras 11 and 23 and the case-law cited therein; Ojha v Commission, para. 47; C-89/08 P Commission v Ireland and Others [2009] ECR I-11245, para. 61; C-197/09 RX-II M v EMEA [2009] ECR I-12033, paras 53 and 54

5. The admissibility of claims for annulment deriving from the employment relationship between an official and his institution must be examined in the light of the provisions of Articles 90 and 91 of the Staff Regulations. In that regard, the existence of an act adversely affecting an official within the meaning of Articles 90(2) and 91(1) of the Staff Regulations is an indispensable condition for the admissibility of any action for annulment brought by an official against the institution which employs him. Only measures which produce binding legal effects capable of directly and immediately affecting an official’s interests by bringing about a significant change in his legal position constitute acts adversely affecting him within the meaning of those provisions.

Consequently, measures whose purpose is to prepare a decision, such as internal memoranda exchanged within the administration or opinions of internal committees for the administration are not acts adversely affecting officials within the meaning of Article 90(2) of the Staff Regulations and may therefore be challenged only incidentally in an action brought against annullable acts.

(see paras 125, 126, 128, 129, 133)

See: 60/81 IBM v Commission [1981] ECR 2639, para. 8 et seq.; judgment of 10 January 2006 in C-373/04 P Commission v Alvarez Moreno, not published in the ECR, para. 42 and the case-law cited therein; T-135/89 Pfloeschner v Commission [1990] ECR II-153, para. 11; T-6/93 Pérez Jiménez v Commission [1994] ECR-SC I-A-155 and II-497, para. 34; T-586/93 Kotzonis v ESC [1995] ECR II-665, para. 29; T-391/94 Baiwir v Commission [1996] ECR-SC I-A-269 and II-787, para. 34; T-293/94 Vela Palacios v ESC [1996] ECR-SC I-A-305 and II-893, para. 22; T-188/03 Hivonnet v Council [2004] ECR-SC I-A-139 and II-889, para. 16

6. In disputes of a financial character the General Court enjoys unlimited jurisdiction under the second sentence of Article 91(1) of the Staff Regulations, which entrusts it with the task of providing a complete solution to those disputes and thus of ruling on all the rights and obligations of the staff member, save for leaving to the institution in question, under the control of the Tribunal, the implementation of such part of the judgment and under such precise conditions as the Tribunal shall determine. In that regard, not only actions to establish liability brought by staff against an institution but also all those seeking payment by an institution to a staff member of a sum which he considers to be due to him under the Staff Regulations or other act governing his employment relationship are ‘disputes of a financial character’ within the meaning of that provision. It is therefore for the European Union judicature, where appropriate, to order an institution to pay a sum to which the person concerned is entitled under the Staff Regulations or other legal act or to recognise the existence of a right to receive allowances.

(see paras 164, 165)

See: C-135/06 P Weißenfels v Parliament [2007] ECR I-12041, paras 65, 67 and 68; C-583/08 P Gogos v Commission [2010] ECR I-4469, para. 49; T-473/04 Asturias Cuerno v Commission [2007] ECR-SC I-A-2-139 and II-A-2-963 para. 23 and the case-law cited therein

7. Although the annulment of a measure by the European Union judicature operates ex tunc and thus has the effect of cancelling retroactively the annulled measure, in the case of annulment of a decision to reassign an official previously posted to a third country, the restoration of the legal position prior to that decision does not necessarily entail his right to receive arrears of the advantages provided for by Annex X of the Staff Regulations.

That is the case where an official did not have to suffer the disadvantages suffered by officials posted to a third country because, on the date of the decision, he was living permanently in the European Union on sick leave. The specific provisions applicable by way of derogation to officials posted to a third country, set out in Annex X to the Staff Regulations, were drawn up on account of the specific living conditions of those officials. Thus, the various benefits granted to such officials are intended to compensate for the disadvantages they suffer and which officials posted in the European Union do not have to suffer.

(see paras 171, 172, 176)

See: 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, para. 30; T-372/00 Campolargo v Commission [2002] ECR-SC I-A-49 and II-223, para. 109

8. The allowance for living conditions provided for by Article 10 of Annex X to the Staff Regulations is intended to compensate for the disadvantages arising from the exercise of duties and residence in a difficult environment. Accordingly, an official who is not present in the place to which he is posted and therefore does not suffer the disadvantages which that allowance is intended to compensate for, cannot claim the payment of that allowance.

(see paras 177, 180)

9. According to Article 5(1) of Annex X to the Staff Regulations, if the institution provides the official with accommodation which corresponds to the level of his duties and to the composition of his dependent family, he is to reside in it. According to Article 23 of Annex X to the Staff Regulations, where the official is not provided with accommodation by the institution, his rent is to be reimbursed. Those provisions and those of Article 18 of Annex X to the Staff Regulations are intended to meet the specific and objective needs of the officials concerned as regards accommodation, in the light of the particular living conditions in the third country where they are posted, in order to facilitate their settlement and the exercise of their duties in those countries.

However, in the event that a decision to reassign the official to the European Union has the effect of ending the accommodation agreement signed by his institution, which pays the rent, the annulment of that decision cannot give rise to a claim on the part of the official in relation to the official accommodation in question. First, as he did not pay the rent for that accommodation, he cannot claim any reimbursement on that basis. Second, the restoration of his legal position prior to that reassignment decision cannot entail any right, even a hypothetical one, to the retroactive provision of official accommodation, since the official is not, de facto, in a position which would warrant the provision of official accommodation in a third country.

(see paras 182, 183, 186)

See: T-75/91 Scaramuzza v Commission [1992] ECR II-2557, para. 35; T-20/98 Q v Council [1999] ECR-SC I-A-147 and II-A-779, para. 50

10. The supplementary reimbursement provided for by Article 24 of Annex X to the Staff Regulations applies only to persons residing in a third country, that is to say, the official posted to that country and his dependents who also reside there. However in view of the dual ratio legis of that article, that is to say, the very high cost of healthcare in certain third countries and the additional risks to which officials and their families are exposed, the mere fact that an official incurs his medical expenses in the European Union does not allow him to be refused the benefit of supplementary insurance.

Moreover, the general provisions for implementing Article 24 adopted by the Commission provide that persons covered by the insurance of the official posted to a third country who are not permanently resident at the place of employment of that official are to be covered during the time they spend at the place of employment of the official and, after the Medical Officer has been consulted, if the medical expenses originate solely by reason of the fact of the member’s place of employment. Clearly, an official who is no longer permanently resident at his place of employment in the third country, but whose medical expenses may none the less originate in that third country, is in a comparable position.

However, the existence of a right to payment of the sums claimed by way of supplementary insurance depends on the verification by the competent authority, applying those general implementing provisions mutatis mutandis, that the medical expenses of which the official seeks full reimbursement, originate solely by reason of the fact of his assignment to the third country. Such verification might be redundant in the event that the medical expenses in question have already been reimbursed under another provision of the Staff Regulations.

(see paras 190, 196-199)

See: T-362/94 De Rijk v Commission [1996] ECR-SC I-A-117 and II-365, para. 34

11. Under Articles 6 and 8 of Annex X to the Staff Regulations, officials posted to third countries enjoy more advantageous rules as regards annual leave than officials posted within the European Union. However the purpose of those rules is clearly to compensate for the disadvantages connected with the particular, or even particularly difficult, living conditions in the place of employment. Consequently, an official who has not had to suffer such disadvantages cannot claim the benefit of those special provisions as regards leave.

(see paras 201, 202)

12. The annulment of an unlawful act may in itself constitute appropriate and, in principle, sufficient reparation for any non-material damage that act may have caused, unless the applicant demonstrates that he has suffered non-material damage separable from the illegality of the act justifying its annulment and not capable of being entirely remedied by that annulment. For the purposes of assessment of any non-material damage, account must be taken of the aggravating circumstances characterising the specific situation of the official concerned.

A reassignment decision adopted against the will of the official concerned generally has the effect that the career of that official does not develop as he would have wished, which, where that decision proves to be unlawful, may constitute non-material damage which is not adequately repaired by the annulment of that decision, as annulment cannot remove the damage retroactively.

(see paras 234, 237)

See: 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes v Commission [1987] ECR 3259, para. 22; C-343/87 Culin v Commission [1990] ECR I-225, para. 26; C-259/96 P Council v de Nil and Impens [1998] ECR I-2915, para. 25; T-307/01 François v Commission [2004] ECR II-1669, para. 110; T-10/02 Girardot v Commission [2006] ECR-SC I-A-2-129 and II-A-2-609, para. 131

13. A change in the place of posting, even though it may cause the person concerned family and financial difficulties, does not constitute an abnormal and unforeseeable event in an official’s career, when the places of employment to which he may be assigned are spread over several States and the appointing authority may be required to meet needs of the service which compel it to decide such transfer. Those considerations apply particularly as regards the situation of officials posted to third countries, who are subject to a regime of periodic mobility and cannot therefore expect, generally, to be posted permanently to a given third country.

(see para. 248)

See: 61/76 Geist v Commission [1977] ECR 1419, para. 34; 23/87 and 24/87 Aldinger and Virgili v Parliament [1988] ECR 4395, para. 17

14. Where they cause tensions prejudicial to the proper functioning of the service, internal relational difficulties may justify the transfer of an official in the interests of the service. Such a measure may even be taken irrespective of the question of responsibility for the incidents in question. Therefore, even if a reassignment decision were prompted by the existence of a relationship of conflict between the reassigned official and his former superior, such an assessment does not in itself constitute non-material damage to the official.

(see para. 251)

See: 124/78 List v Commission [1979] ECR 2499; Ojha v Commission, para. 41; T-78/96 and T-170/96 W v Commission [1998] ECR-SC I-A-239 and II-745, para. 88

15. The mere fact that a decision to reassign an official was adopted while the official concerned was on sick leave is not such as to establish damage to the reputation or dignity of the official.

(see para. 252)

See: T-76/03 Meister v OHIM [2004] ECR-SC I-A-325 and II-1477, paras 205 to 207; T-339/03 Clotuche v Commission [2007] ECR-SC I-A-2-29 and II-A-2-179, para. 219