JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

17 November 1998

Case T-131/97

Carmen Gómez de Enterria y Sanchez

v

European Parliament

‛Officials — Retirement in the interests of the service — Article 50 of the Staff Regulations’

Full text in French II-1855

Application for:

annulment of the decision adopted by the European Parliament at its meeting on 15 and 16 July 1996, pursuant to Article 50 of the Staff Regulations of Officials of the European Communities, retiring the applicant in the interests of the service and rejecting her applications for two other posts in the same grade.

Decision:

Inadmissible in part. Remainder of the application dismissed.

Abstract of the Judgment

The applicant, a former Director-General at the European Parliament, was retired in the interests of the service pursuant to Article 50 of the Staff Regulations of Officials of the European Communities (Staff Regulations) with effect from 31 March 1995. By judgment of 14 May 1996 in Case T-82/95 Gómez de Eritema y Sanchez v Parliament [1996] ECRSC II-599 the Court of First Instance annulled the decision retiring her in the interests of the service on the ground that she had not been given the opportunity to assert her interests effectively.

Following the judgment the Bureau of the Parliament, acting as appointing authority, decided to resume the procedure in such a way as to provide the applicant with the opportunity to assert her interests effectively. On 25 June 1996 the applicant had an interview with the Secretary-General of the Parliament concerning the grounds which had led the Bureau to contemplate adopting a decision retiring her in the interests of the service and also its examination of the possibilities of reassigning her to another post corresponding to her grade.

At the meeting held on 15 and 16 July 1996 the Bureau considered the question of the application of Article 50 of the Staff Regulations to the applicant. It decided to confirm its earlier decision and not to give effect to the applicant's request to be appointed to a vacant post as special adviser (Grade A 1). The applicant was informed of that decision in a letter from the President of the Parliament dated 9 October 1996.

Substance

First plea, alleging infringement of the first paragraph of Article 176 of the Treaty

Article 176 of the Treaty provides for the sharing of powers between the judicial authority and the administrative authority, according to which it is for the institution that issued the act annulled to determine what measures are required to comply with a judgment annulling a decision. In order to comply with the judgment and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis. Even if reinstatement of an official cannot be precluded a priori from the range of measures available to give full effect to a judgment annulling a decision retiring an official in the interests of the service, such a solution would be excessive where the decision was annulled because it infringed the official's rights to assert his interests and a fresh decision implementing the judgment annulling the original decision has been taken following a procedure initiated for the specific purpose of making good that defect. The solution consisting in regularising the applicant's administrative and financial position with retroactive effect makes it possible to reconcile the applicant's interests and those of the service and meets the requirements of proper administration (paragraph 38).

See: T-84/91 Meskens v Parliament [1992] ECR II-2335, para. 73; T-106/92 Frederiksen v Parliament [1995] ECRSC II-99, para. 31

The contested decision cannot be regarded as unlawful merely because it refers expressly to the decision which has been annulled. The contested decision does not simply reproduce the earlier decision retiring the applicant, since both its operative part and the procedure which led to its adoption are different.

It follows that the first plea must be rejected (paragraph 40).

Second plea, alleging breach of the rights of the defence

The parties are agreed that the applicant's letter of 4 July 1996 was brought to the knowledge of the members of the Bureau at its meeting of 15 and 16 July 1996. In those circumstances it was for the applicant to show that her observations of 4 July 1996 had not been taken into consideration by the Bureau. The applicant has not adduced the slightest evidence that in the present case the members of the Bureau were not aware of the content and scope of her observations and that her rights of defence had therefore been breached (paragraphs 43 and 44).

It follows that the second plea must be rejected (paragraph 45).

Third plea, alleging failure to state reasons

The Parliament's objective in retiring the applicant in the interests of the service can be readily identified from the reasons on which the contested decision is based.

It follows that the reasoning of the contested decision is adequate and that the third plea must be rejected (paragraph 51).

Fourth plea, alleging failure to take the interest of the service into account

As regards retirement in the interests of the service in the case of officials in Grades A 1 and A 2, the appointing authority has a wide discretion. The Staff Regulations do not limit the reasons which may justify retiring an official in the interests of the service under Article 50 of the Staff Regulations: they may consist in the objective requirements of the service and also in the assessment of the individual qualities of the official concerned in the light of those interests. This wide discretion presupposes considerable freedom of decision and at the same time a scrupulous examination of the facts of each case, this latter consideration being necessary as a guarantee that the discretion will be used with full knowledge of each case. This examination also implies that the official for whom retirement in the interests of the service is contemplated is given the opportunity to assert his interests. The same applies where it is envisaged that a decision will be taken not to assign the official to another post in his grade within the meaning of the third paragraph of Article 50 of the Staff Regulations.

See: l7/68Reinarz v Commission [1969] ECR 61, paras 15 and 16; 19/70 Almini v Commission [1971] ECR 623; 34/77 Oslizlok v Commission [1978] ECR 1099, para. 30; 131/82 Angelini v Commission [1983] ECR 2801, para. 11; 148/82 Renaud v Commission [1983] ECR 2823, para. 10

In the present case the Parliament did in fact undertake a scrupulous examination of the various interests involved (paragraphs 56 and 57).

Fifth plea, alleging misuse of powers

It is clear upon examining the fourth plea that the applicant has not shown that the contested decision was adopted without regard to the interests of the service. It is settled case-law that where a decision has not been judged to be contrary to the interests of the service there can be no question of any misuse of powers (paragraph 62).

See: T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061, para. 57

Sixth plea, alleging failure to observe the reasonable time requirement

Although the contested decision was notified after an unfortunate delay, it must be borne in mind that a delay in the notification of an individual decision to the person concerned cannot entail the annulment of that decision, since its notification is an act subsequent to the decision and therefore has no influence on its contents. In any event, the delay in notifying the contested decision did not adversely affect the applicant's rights, since she was able to lodge a complaint and the present action for annulment.

See: 125/80 Anting v Commission [1981] ECR 2539, para. 9; 111/83 Picciolo v Parliament [1984] ECR 2323, para. 25

It follows from the foregoing considerations that the contested decision is not vitiated for illegality by the Parliament's delay in notifying it to the applicant and that the sixth plea must therefore be rejected (paragraph 70).

It follows that the application must be dismissed in its entirety (paragraph 71).

Operative part:

The application is inadmissible in so far as it seeks the annulment of the part of the operative part of the decision adopted by the European Parliament at its meeting on 15 and 16 July 1996 which confirms that the applicant's candidature for the post of Director-General in the Directorate-General for Sessional Services of the Parliament was not accepted.

The remainder of the application is dismissed.