Case T‑315/17

Chantal Hebberecht

v

European External Action Service

(Civil service — Officials — EEAS — Posting — Position of Head of Delegation of the European Union to Ethiopia — Decision refusing to extend the posting — Interests of the service — Obligation to state reasons — Equal treatment)

Summary — Judgment of the General Court (First Chamber), 27 November 2018

Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject matter of the dispute — Brief summary of the pleas in law on which the application is based — Action seeking compensation for loss caused by an EU institution — No indications as to the character and extent of the damage suffered or as to the causal link — Inadmissibility

Officials — Equal treatment — Equal opportunities for men and women — Essential nature of that equality — Not taken into account in a decision concerning the organisation of departments — Annulment of the decision

Officials — Organisation of departments — Assignment of staff — Rotation of officials posted outside the European Union — Administration's discretion — Limits — Interests of the service — Decision refusing to extend the posting of a head of delegation — Different treatment among applicants for an extension — Breach of the principle of equal treatment — None

As regards the policy of rotation of officials, the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided such assignment is made in the interest of the service and conforms with the principle of assignment to an equivalent post. In the context of its review of the decisions concerning the organisation of departments, the Court, where an action has been brought before it, must verify whether the appointing authority has remained within the bounds of its direction and did not use it in a manifestly wrong way. To establish the existence of a manifest error, the applicant must adduce evidence dispelling the plausibility of the assessments made by the administration. The interest of the service requires that there to be no break in the continuity of the service with the consequence that the review must also cover the existence of any manifest errors dispelling the plausibility of the assessments made by the appointing authority. However, turnover of staff is inherent to the mobility procedure and does not compromise the continuity of service, since that continuity is guaranteed through a dialogue between outgoing staff members, those remaining in their positions and incoming staff members who have been selected on the basis of their knowledge and experience necessary for the type of position in question. (see paras 27-29, 39, 41)

The obligation to ensure equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. That principle requires that comparable situations are not treated differently and that different situations are not treated in the same way, unless such treatment is objectively justified. The principle is not infringed by differences justified on the basis of objective and reasonable criteria where those differences are proportionate to the aim pursued by the differential treatment in question. Equal treatment is of general application and applies to acts adopted by the appointing authority within the statutory framework each time a comparison is possible between situations. In the present case, its application is not, in itself, precluded by the fact that decisions concerning extension requests for head of delegation posts are based on the interests of the service, in so far as those interests constitute objective and reasonable criteria justifying a difference in treatment between officials. A comparison may be drawn between the responses to extension requests, since such a comparison is performed by the institution concerned itself in the decision rejecting the complaint in which it seeks to highlight why the situations of the heads of delegation are different to the situation of the person concerned. That must be examined having regard to the case-law giving the administration a wide discretion to take measures in the interests of the service, with the EU courts therefore having to verify, in the context of its review, whether an arbitrary distinction or a manifest error of assessment has been committed. In the present case, those considerations set out in the decision rejecting the complaint to explain the distinction drawn between the cases are plausible without the applicant having submitted evidence suggesting an arbitrary distinction or a manifest error of assessment could have been committed. (see paras 58-60, 62-64, 66, 76)

According to Article 1d(2) of the Staff Regulations, full equality in practice between men and women in working life is an essential element to be considered in the implementation of all aspects of the Staff Regulations. Under that provision, the principle of equal treatment is not to prevent the institutions of the European Union from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. Pursuant to Article 1d(3) of the Staff Regulations, the appointing authorities of the institutions are to determine, by agreement, after consulting the Staff Regulations Committee, measures and actions to promote equal opportunities for men and women in the areas covered by the Staff Regulations, and are to adopt the appropriate provisions notably to redress such de facto inequalities as hamper opportunities for women in these areas. Accordingly, an institution which excludes gender equality from the considerations surrounding the adoption of a decision concerning a request for extension for a head of delegation, despite that element being regarded as essential in the eyes of the legislature, infringes the abovementioned statutory provisions. (see paras 81-83, 94)