JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

19 June 2014

BN

v

European Parliament

‛Civil service — Officials — Action for annulment — Official of grade AD 14 occupying a post as Head of Unit — Allegation of psychological harassment against the Director-General — Mobility exercise — Refusal to accept appointment to a post of Advisor in another Directorate-General with the loss of the salary increase for Heads of Unit — Decision on a temporary reassignment to another Advisor post — Interests of the service — Rule that the grade must correspond with the post — Action for damages — Harm arising from a failure to take a decision’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which BN requests the Tribunal, first, to annul the decision of the President of the European Parliament of 16 January 2012 terminating his duties as Head of Unit in the Directorate-General (DG) for Personnel and assigning him as an Advisor in the Resources Directorate of the same Directorate-General from 1 January 2012, and, second, for compensation for the harm he claims to have suffered as a result of harassment and maladministration on the part of the Director-General for Personnel, assessed on an equitable basis at EUR 50 000.

Held:

The action is dismissed. The European Parliament is to bear all of its own costs and is ordered to pay all the costs incurred by BN.

Summary

Officials — Administration’s duty to have regard for the welfare of officials — Scope — Enhanced obligation where the health of the official is affected — Limits (Staff Regulations, Art. 24) Officials — Transfer — Reassignment — Difference — Common conditions (Staff Regulations, Arts 4, 7(1) and 29) Officials — Organisation of departments — Assignment of staff — Reassignment — Compliance with the rule on correspondence between grade and post — Scope (Staff Regulations, Art. 7(1)) Officials — Remuneration — Salary increase associated with duties of head of unit, director or director-general — Conditions for granting (Staff Regulations, Art. 44(2)) Judicial proceedings — Costs — Burden — Taking into account of the requirements of fairness — Order that the successful party pay the costs — Costs incurred in the interlocutory proceedings — Included (Rules of Procedure of the Civil Service Tribunal, Arts 87(2) and 88)

The obligations arising for the administration from the duty to have regard for the welfare of officials are substantially enhanced where the situation of an official whose physical or mental health is shown to be affected is involved. In such circumstances, the administration must consider that official’s requests with a particularly open mind. Moreover, it is generally incumbent on the medical service of an institution, especially where its attention is drawn, either by the official concerned himself or by the administration, to the allegedly harmful consequences that an administrative decision might have for the health of the person to whom it is addressed, to ascertain the reality and the extent of the risks referred to and to inform the appointing authority of the result of its examination. However, an institution’s obligation to provide assistance and duty to have regard for the welfare of its staff do not go so far as to require the administration to disregard its own internal rules. (see paras 34, 35, 44) See: judgment in Esders v Commission, F-62/10, EU:F:2011:141, paras 80 and 82 and the case-law cited therein It is clear from the general scheme of the Staff Regulations that there is a transfer in the strict sense of the term only where an official is transferred to a vacant post. It follows that any transfer, properly so-called, is subject to the formalities prescribed by Articles 4 and 29 of the Staff Regulations. In contrast, these formalities do not apply when an official is reassigned with his post, because such a transfer does not give rise to a vacant post. However, decisions to reassign are subject, like transfers, as regards the protection of the rights and legitimate interests of the officials concerned, to the rules of Article 7(1) of the Staff Regulations inasmuch as, inter alia, the reassignment of officials may take place only in the interests of the service and in conformity with the principle of equivalence of posts. (see paras 46-48) See: judgment in Clotuche v Commission, T-339/03, EU:T:2007:36, para. 31 judgment in de Albuquerque v Commission, F-55/06, EU:F:2007:15, para. 55 and the case-law cited therein In the event of a change in an official’s duties upon reassignment, the principle that the post to which an official is assigned should correspond to his grade, set out in Article 7 of the Staff Regulations in particular, calls for a comparison, not between his present and previous duties, but between his present duties and his grade. Accordingly, the rule that the post should correspond to the grade does not preclude a decision from entailing the assignment of new duties which, although they are different from those previously carried out and are perceived by the person concerned as bringing about a reduction of his responsibilities, are none the less consistent with a post corresponding to his grade. Thus, an effective diminution of an official’s responsibilities infringes the rule that the post to which an official is assigned should correspond to his grade only if, taken together, his new duties clearly fall short of those corresponding to his grade and post, taking account of their character, their importance and their scope. Consequently, the reassignment of an official from a post of head of unit to a post of advisor, keeping the same grade AD 14, complies with the rule that his post should correspond to his grade in so far as, as is apparent from the descriptive table of basic posts in Annex I, section A, of the Staff Regulations, grade AD 14 corresponds to an administrator working for example as director, head of unit or advisor. (see paras 57-59) See: judgment in Bermejo Garde v EESC, F-41/10, EU:F:2012:135, paras 162 and 163 and the case-law cited therein, on appeal before the General Court of the European Union, Case T-530/12 P Pursuant to the second paragraph of Article 44 of the Staff Regulations, an official who is appointed head of unit, director or director-general in the same grade is to benefit from advancement by one step in that grade at the time the appointment comes into effect. That provision shows that the official is paid the increase in salary on account of the performance of management duties and that it is related to the performance of those duties. In so far as the official ceases to perform those duties in order to perform others not involving management responsibilities, the right to the salary increase lapses. (see para. 72) Under Article 88 of the Rules of Procedure of the Civil Service Tribunal, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought. In view of the fact that the applicant sought to have discussions with the Secretary-General of his institution and applied directly to the President of the institution as the appointing authority in order to request the adoption of emergency measures concerning him, but was not accommodated by either, which may have led him to feel abandoned by an institution to which he had shown dedication, it is appropriate to decide that the institution, which is the successful party, should bear its own costs, including those incurred in the interlocutory proceedings, and to order the institution to pay the costs incurred by the applicant, including in the interlocutory proceedings. (see paras 98, 100)

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

19 June 2014

BN

v

European Parliament

‛Civil service — Officials — Action for annulment — Official of grade AD 14 occupying a post as Head of Unit — Allegation of psychological harassment against the Director-General — Mobility exercise — Refusal to accept appointment to a post of Advisor in another Directorate-General with the loss of the salary increase for Heads of Unit — Decision on a temporary reassignment to another Advisor post — Interests of the service — Rule that the grade must correspond with the post — Action for damages — Harm arising from a failure to take a decision’

Application

:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which BN requests the Tribunal, first, to annul the decision of the President of the European Parliament of 16 January 2012 terminating his duties as Head of Unit in the Directorate-General (DG) for Personnel and assigning him as an Advisor in the Resources Directorate of the same Directorate-General from 1 January 2012, and, second, for compensation for the harm he claims to have suffered as a result of harassment and maladministration on the part of the Director-General for Personnel, assessed on an equitable basis at EUR 50 000.

Held

:

The action is dismissed. The European Parliament is to bear all of its own costs and is ordered to pay all the costs incurred by BN.

Summary

Officials — Administration’s duty to have regard for the welfare of officials — Scope — Enhanced obligation where the health of the official is affected — Limits (Staff Regulations, Art. 24) Officials — Transfer — Reassignment — Difference — Common conditions (Staff Regulations, Arts 4, 7(1) and 29) Officials — Organisation of departments — Assignment of staff — Reassignment — Compliance with the rule on correspondence between grade and post — Scope (Staff Regulations, Art. 7(1)) Officials — Remuneration — Salary increase associated with duties of head of unit, director or director-general — Conditions for granting (Staff Regulations, Art. 44(2)) Judicial proceedings — Costs — Burden — Taking into account of the requirements of fairness — Order that the successful party pay the costs — Costs incurred in the interlocutory proceedings — Included (Rules of Procedure of the Civil Service Tribunal, Arts 87(2) and 88)