JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

13 January 1998

Case T-176/96

Cornells Volger

v

European Parliament

‛Officials — Action for annulment — Admissibility — Decision to assign to non-active status — Article 41 of the Staff Regulations — Duty to have regard to officials' interests’

Full text in French II-1

Application for:

annulment, first, of the Parliament's decision of 1 December 1995 to assign the applicant to non-active status with effect from 30 November 1995 and all subsequent related decisions adopted in order to implement that decision and, second, of the Parliament's decision of 3 September 1996 amending to 31 January 1996 the date ori which the decision of 1 December 1995 was to take effect.

Decision:

Application dismissed.

Abstract of the Judgment

By letter of 21 March 1995 the Director-General of the Parliament's Directorate-General for Personnel, the Budget and Finance (DG 5) informed the applicant that the institution had decided to apply Article 41 of the Staff Regulations of Officials of the European Communities (Staff Regulations) to a number of officials and that the appointing authority intended to abolish his post.

In the same letter the applicant was requested to inform the Parliament before 3 April 1995 whether he was willing to be assigned to non-active status, pursuant to the third subparagraph of Article 41(2) of the Staff Regulations. He was informed that if he answered in the affirmative or failed to respond by the date mentioned he would be automatically entered on the list of officials affected by the decision to reduce the number of posts. If he answered in the negative he was requested to submit his observations before 3 April 1995; on the basis of these observations the appointing authority, after consulting the Joint Committee and the Reports Committee, would adopt either a decision to assign him to non-active status or a decision reassigning him.

On 30 March 1995 the applicant informed the Parliament that he did not object to his post being abolished ‘provided that [his] personal interests [were] not prejudiced’. In that regard, he proposed that he should not be assigned to non-active status until the end of the budgetary year and that his institution should release him from duty unless he were to be offered promotion in the meantime.

By letter of 26 April 1995 the Director-General of DG 5 informed the applicant that it would be proposed that Article 41 of the Staff Regulations should be applied to him with effect from 1 December 1995 and that it was impossible to release him from the obligation to perform his duties until the date on which he was actually assigned to non-active status, pursuant to Article 55 of the Staff Regulations, unless he took leave or requested leave on personal grounds.

By letter of 30 October 1995 to the President of the Staff Committee the applicant stated that he had learnt that ‘at a recent meeting of the Joint Committee it [had] been stated that [he was] unconditionally willing to be assigned to non-active status under Article 41 of the Staff Regulations’. He further stated that this was not true and that he was not willing to be assigned to non-active status.

On 24 November 1995, after receiving a ‘communication to officials and other servants who are definitively leaving their posts’, die applicant wrote to Mr A., of the pensions department of the Social Affairs Division in DG 5, to ascertain what decision had served as the basis for sending that communication.

By letter of 28 November 1995 the Head of the Personnel Division wrote to die applicant confirming die terms of the letter of 26 April 1995 and informing him tíiat after consulting the Joint Committee and the Reports Committee the administration had proposed diat die applicant should be assigned to non-active status wiüi effect from 1 December 1995. The letter also stated tliat the formal decision would be communicated to die applicant as soon as it had been adopted.

By letter of 27 December 1995 the Parliament notified the applicant of its decision of 1 December 1995 assigning him to non-active status ‘with effect from the evening of 30 November 1995’ and that he had been granted the allowance provided for in Annex IV to the Staff Regulations with effect from 1 December 1995 (decision of 1 December 1995).

By memorandum of 9 January 1996 the pensions department determined the applicant's rights pursuant to Article 41 of the Staff Regulations.

On 1 April 1996 the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the decision of 1 December 1995 and all subsequent related decisions (complaint).

On 10 September 1996 the Head of the ‘Staff Regulations and Personnel Management’ department of the Personnel Division of DG 5 wrote to the applicant informing him that the appointing authority had decided, ‘following the budgetary authority's decision to extend until 1996 the arrangements for applying Article 41 of the Staff Regulations ... which were made for 1995 and having regard to [his] complaint concerning the date on which the decision to assign [him] to non-active service was to take effect’, to amend the decision of 1 December 1995‘so that it would take effect from the first day following its notification, namely 1 February 1996’. The Parliament's decision of 3 September 1996 was enclosed with that letter.

On 18 November 1996 the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the decision of 3 September 1996. The Parliament rejected that complaint by decision of 9 January 1997.

Admissibility

By its decision of 3 September 1996 the appointing authority did not meet the applicant's claims in full. By that decision it amended the date on which the decision of 1 December 1995 was to take effect but did not withdraw the decision to assign the applicant to non-active status. The decision of 3 September 1996 therefore expressly rejected the complaint in part (paragraph 37).

Consequently, the action has not become entirely devoid of purpose, since the decision of 1 December 1995 was not replaced by a new decision meeting the applicant's claims in full, but was only amended in the light of the applicant's objection to the date on which the decision to assign him to non-active status was to take effect (paragraph 38).

See: T-41/93B. v Commission [1993] ECR II-1037, para. 19

The action is admissible in so far as it seeks to challenge the legality of tire decision of 1 December 1995 to assign the applicant to non-active status (paragraph 40).

Since the decision of 3 September 1996 constituted a positive reply to the objections which the applicant raised in his complaint to the retroactive nature of the decision of 1 December 1995, the arguments which he puts forward in support of those objections in the present action are devoid of purpose (paragraph 41).

Substance

The plea alleging infringement of Article 25 of the Staff Regulations and of the principles of the protection of legitimate expectations, of non-retroactivity and of legal certainty

The complaints based on the retroactive effect of the decision of 1 December 1995 and the belated publication in the Bulletin mensuel du personnel des Communautés are devoid of puipose, since the appointing authority decided that the decision of 1 December 1995 was to take effect on 1 February 1996 (paragraph 48).

The decision of 3 September 1996 is not a new decision assigning the applicant to non-active status. Accordingly, in adopting the decision of 3 September 1996 the appointing authority did not alter the applicant's legal situation but merely amended the date from which his non-active status became effective (paragraph 50).

Furthermore, the complaint to the effect that the decision of 3 September 1996 is inadequately reasoned, in so far as it produces retroactive effects, is unfounded (paragraph 51).

The Parliament was under no obligation to provide reasons for the fact that the new date on which the decision of 1 December 1995 was to take effect was not later than the date on which it adopted its subsequent decision, 3 September 1996. The letter of 10 September 1996 also provided an adequate explanation of the fact that the budgetary authority had extended the arrangements for applying Article 41 of the Staff Regulations until 1996 (paragraphs 52 and 53).

Lastly, tlie applicant's plea alleging breach of the principle of the protection of legitimate expectations is unfounded. He was given no assurance by the administration that the decision of 1 December 1995 assigning him to non-active status would be withdrawn (paragraph 54).

The plea alleging infringement of Article 41 of the Staff Regulations and breach of the duty to have regard for the interests of officials

The administration is required to consider complaints with an open mind. The plea alleging infringement of Article 41 of the Staff Regulations had already been raised in the administrative procedure with sufficient clarity to enable the appointing authority to be aware of the applicant's objections to the contested decision (paragraph 65).

See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 11; T-506/93 Moat v Commission [1995] ECR-SC II-147, para. 18

The alleged infringement of Article 41 of the Staff Regulations

This complaint must be taken to mean that there was a breach of Article 41 of the Staff Regulations in so far as the applicant was automatically included on the list of officials affected by the decision to reduce the number of posts when he had not expressed a desire to be assigned to non-active status (paragraph 66).

In that regard, it is apparent from a memorandum from the Director-General of DG 5 to the President of the Joint Committee dated 26 September 1995 and produced by the Parliament at the hearing that the applicant was regarded as coming within the category of ‘officials who have not volunteered’ (paragraphs 71 to 73).

The complaint alleging a breach of Article 41 of the Staff Regulations is unfounded. That finding is in no way affected by the fact that the advisory committees, in the exercise of the powers conferred on them by the Staff Regulations, regarded the applicant as having volunteered for non-active status, contrary to the view expressed by the administration (paragraph 75).

The alleged breach of the duty to have regard for the interests of officials

The administration's duty to have regard for the interests of its servants reflects the balance between the reciprocal rights and obligations created by the Staff Regulations for relations between the public authority and public service employees and the requirements of the duty to have regard to the interests of officials cannot prevent the appointing authority from adopting the measures it considers to be necessary in the interests of the service. Furthermore, although in taking a decision concerning the situation of an official the authority must take into account not only the interests of the service but also those of the official concerned, this consideration cannot prevent the authority from undertaking a rationalisation of departments if it believes that this is necessary (paragraph 76).

See: 125/80 Anting v Commission [1981] ECR 2539, para. 19; T-59/91 and T-79/91 Eppe v Commission [1992] ECR II-2061, para. 66

The requirements associated with the duty to have regard for the interests of officials were satisfied in the present case (paragraph 77).

The Parliament proposed, further to the applicant's observations, that Article 41 of the Staff Regulations should be applied with effect from 1 December 1995. Moreover, it was distinctly negligent of the applicant not to submit any observation in response to the letter of 26 April 1995 from the Director-General of DG 5 (paragraphs 78 and 79).

Lastly, tlie document which the Parliament produced at the hearing shows that the applicant's situation was considered in the light of the matters referred to in the third subparagraph of Article 41(2) of the Staff Regulations, namely his ability, efficiency, conduct in the service, family circumstances and seniority. These matters, which the appointing authority is required to take into account where it draws up the list of the officials to be affected by a decision to reduce the number of posts, are expressly set out in that document, together with comments. Furthermore, the document explains that the applicant was not regarded as capable of pursuing his career within the institution, since according to the criteria laid down in the document he was not a suitable candidate for transfer (paragraph 80).

Operative part:

The application is dismissed.