JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

30 November 2009

Case F-3/09

Roberto Ridolfi

v

Commission of the European Communities

(Civil service – Officials – Officials posted to non-Member States – Education allowance with interest – Reassignment to headquarters – ‘Recycling’ – Period of normal secondment – Articles 3 and 15 of Annex X to the Staff Regulations)

Application: brought under Articles 236 EC and 152 EA, in which Mr Ridolfi seeks annulment, in particular, first, of the Commission’s decision of 5 March 2008 refusing to grant him from 24 October 2007, the date of his reassignment to headquarters following a period of service in a third country, the ‘recycling’ provided for in Article 3 of Annex X to the Staff Regulations of Officials of the European Communities, and, second, of the Commission’s note of 12 December 2008 recovering the interest on the education allowance granted to the applicant pursuant to Article 15 of Annex X to the Staff Regulations for the period from 24 October 2007 to 31 December 2007.

Held: The action is dismissed. The applicant is ordered to bear the costs.

Summary

1. Officials – Assignment – Transfer

(Staff Regulations, Art. 7(1))

2. Officials – Equal treatment – Advantages granted upon reassignment to the headquarters of the Commission after completing a period of normal assignment in a third country

(Staff Regulations, Annex X, Arts 3 and 15)

1. A transfer in the interests of the service does not preclude the competent authorities from taking account of the personal wishes of those concerned, particularly in order to enable them to overcome any personal problems. In so far as the efficiency of every official depends on his personal development, and in accordance with the duty of the European Communities to have regard for the welfare of their officials, the interests of the service necessarily involve taking into consideration personal problems raised by officials. Allowing an official who has been reassigned at his express request and for personal reasons to disregard that fact and to attribute his reassignment solely to the interests of the service would be tantamount to dissociating the interests of the service and the official’s personal situation incorrectly, since those two factors are inextricably linked.

(see para. 47)

See:

140/77 Verhaaf v Commission [1978] ECR 2117, paras 11 and 12

2. The principle of equal treatment is infringed where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified. The same applies to the principle of non‑discrimination, which is merely the specific expression of the general principle of equal treatment and constitutes, in conjunction with the latter, one of the fundamental rights of Community law with which the Court ensures compliance. The principle of proportionality demands that measures of the Community institutions do not exceed the confines of what is appropriate and necessary in order to achieve the intended objective.

However, if the Community legislature was exercising its discretion when it decided to introduce ‘recycling’, in other words temporary reassignment, with his post, of an official posted in a non-Member State to the Commission’s headquarters or any other place of employment in the Community, it has, a fortiori, a wide discretion to determine the conditions and arrangements for that ‘recycling’. Consequently, the principles referred to above must be interpreted in the light of that wide discretion, while still taking account of the need to implement the legislature’s choices when it comes to staff policy.

In such a field, the Community judicature merely ascertains, as regards the principle of equal treatment and the principle of non‑discrimination, whether the institution concerned applied a distinction which was arbitrary, or manifestly inappropriate in relation to the objective pursued, and, as regards the principle of proportionality, whether the measure adopted was manifestly inappropriate in relation to the objective pursued.

In view of the personal or family problems and constraints that a posting to a non-Member State may entail for officials, it cannot be argued that the situation of officials completing a period of normal secondment in a non-Member State is comparable to that of officials who leave the non-Member State before the end of such a period, particularly where they leave at their own request. The same is true if the situation of officials is judged and assessed taking account of the needs of the Community civil service, particularly the need for long-term and continuous service, as well as of budgetary requirements; it must be admitted that such needs are better served by the completion of a period of normal secondment in a non-Member State than by an early departure.

Since the situation of officials who complete a period of normal secondment in a non-Member State is thus not comparable to that of officials who do not complete such a period, it follows that, except where there is objective justification to the contrary, the distinction drawn between those two categories of officials is not only justified but even necessary.

In that context, the Community legislature is free to reserve certain advantages for officials who complete a period of normal secondment in a non-Member State, and it is also free, subject to the principle of proportionality, to determine what those advantages should be, as it did in introducing the ‘recycling’ periods and continued payment of the education allowance with interest. Given that an official reassigned to headquarters without ‘recycling’ loses only the interest on the education allowance which is allocated to officials reassigned with ‘recycling’, and not his entitlement to the education allowance, that distinction is by no means disproportionate in relation to its objective.

(see paras 50, 51, 53-57)

See:

122/78 Buitoni [1979] ECR 677, paras 16 and 20; 66/82 Fromançais [1983] ECR 395, para. 8; 15/83 Denkavit Nederland [1984] ECR 2171, para. 25; 279/84, 280/84, 285/84 and 286/84 Rau Lebensmittelwerke and Others v Commission [1987] ECR 1069, para. 34; 265/87 Schräder HS Kraftfutter [1989] ECR 2237, para. 22; C-8/89 Zardi [1990] ECR I‑2515, para. 10; C-157/96 National Farmers’ Union and Others [1998] ECR I‑2211, para. 60

T-13/97 Losch v Court of Justice [1998] ECR-SC I‑A‑543 and II‑1633, paras 113, 121 and 122; T-164/97 Busacca and Others v Court of Auditors [1998] ECR-SC I‑A‑565 and II‑1699, paras 49, 58 and 59; T-112/96 and T-115/96 Séché v Commission [1999] ECR-SC I‑A‑115 and II‑623, paras 127 and 132; T-211/02 Tideland Signal v Commission [2002] ECR II‑3781, para. 39; T‑94/01, T‑152/01 and T‑286/01 Hirsch and Others v ECB [2003] ECR-SC I‑A‑1 and II‑27, para. 51; T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II‑1121, para. 99; judgment of 13 September 2006 in T‑217/99, T‑321/00 and T‑222/01 Sinaga v Commission, not published in the ECR, para. 144

F‑43/05 Chassagne v Commission [2007] ECR-SC I‑A‑1‑27 and II‑A‑1‑139, para. 55, para. 59 and the case-law cited therein, and para. 61; F-115/07 Balieu-Steinmetz and Noworyta v Parliament [2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 26, and the case-law cited therein