Case T‑750/16

FV

v

Council of the European Union

(Civil service — Officials — Article 42c of the Staff Regulations — Leave in the interests of the service — Equal treatment — Prohibition of discrimination on grounds of age — Manifest error of assessment — Liability)

Summary — Judgment of the General Court (Second Chamber, Extended Composition), 14 December 2018

Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Annulment of a decision placing the official on leave in the interests of the service — Claim by the applicant for compensation in respect of the material harm suffered — Premature nature of the claim

See the text of the decision. (see paras 70-73)

For the EU legislature to be accused of breaching the principle of equal treatment, it must have treated comparable situations differently, thereby subjecting some persons to disadvantages as opposed to others. The officials falling within the age range from 55 to 66 years and therefore potentially subject to the measure provided for in Article 42c of the Staff Regulations may be compelled, against their wishes, to change their administrative status, in so far as they will cease to be in ‘active employment’ within the meaning of Article 36 of the Staff Regulations and will be placed on ‘leave in the interests of the service’. Moreover, there will be no further career development for those officials, since, under point (b) of the sixth paragraph of Article 42c of the Staff Regulations, they will not be entitled to advancement to a higher step or promotion in grade. By contrast, officials who are not subject to the application of Article 42c of the Staff Regulations do not suffer such disadvantages with regard to their career. Moreover, officials placed on leave in the interests of the service indisputably suffer a reduction in their professional income compared with officials who did not fall within the age range at issue and to whom Article 42c of the Staff Regulations therefore cannot be applied. Therefore, Article 42c of the Staff Regulations establishes a difference in treatment on grounds of age. As regards the requirements imposed by Article 52(1) of the Charter of Fundamental Rights of the European Union, it must be held, first, that that difference in treatment on grounds of age is provided for by ‘law’, within the meaning of that article, in so far as that provision has its origin in Regulation No 1023/2013, amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union and, secondly, that it concerns a question of limited scope in the context of the EU civil service, namely that of placing on leave in the interests of the service certain officials who fulfil a number of conditions, including that relating to age. Consequently, that difference in treatment ‘respects the essential contents’ of the principle of non-discrimination for the purposes of that article. Furthermore the objective of optimising investment in vocational training for officials pursued by the EU legislature by means of the difference in treatment on grounds of age introduced by Article 42c of the Staff Regulations has been held to be established. That objective constitutes an objective ‘of general interest recognised by the Union’ within the meaning of Article 52(1) of the Charter of Fundamental Rights. Concerning the proportionality of the treatment, the EU legislature must be given wide discretion in the definition of measures capable of achieving an objective of general interest in the framework of staff policy. In the light of that wide discretion, it did not appear to be unreasonable for the EU legislature to consider it necessary to provide that leave in the interests of the service be restricted solely to officials falling within the age range at issue, to the exclusion of those officials not falling within that range, in order to achieve the legitimate aim of optimising investment in vocational training. (see paras 89-94, 96, 97, 106, 108, 114, 126)

Article 42c of the Staff Regulations expressly refers to the ‘interests of the service’. The ‘organisational needs linked to the acquisition of new competences’, also referred to in that article, constitute a specific aspect of the interests of the service. To the extent that ‘organisational needs’ are linked to the ‘acquisition of new competences’ and constitute only one specific aspect of the interests of the service in the context of Article 42c of the Staff Regulations, the assessment by an institution of the ability of the officials concerned to acquire new competences and to adapt to the changing work environment is compatible with that article. Nor is it contrary to the ratio legis of Article 42c of the Staff Regulations to take into account in that way a characteristic specific to the officials concerned. In so far as it has been established that that provision pursues the objective of optimising the institutions’ investments linked to vocational training in terms of cost-efficiency, it appears compatible with that objective for the institution to take into account, for the purpose of determining the costs of investments relating to vocational training, the ability of the officials concerned to acquire new competences and to adapt to the changing work environment. Taking into account in that way a characteristic specific to the officials concerned is also justified by the fact that the application of Article 42c of the Staff Regulations has unfavourable consequences for those officials and may be imposed on them against their will. Moreover, in so far as the purpose of that assessment is the pursuit of the interests of the service, it must necessarily relate to the future ability of the officials concerned to acquire new competences and to adapt to the changing work environment and must therefore include an element of prognosis. Otherwise, that assessment would not pursue the interests of the service. (see paras 136-140)

In so far as the assessment of organisational needs concerns the assessment of the interests of the service, it is appropriate to confer a wide discretion on the institutions for the purposes of that assessment, it being possible for the Court to call into question the Council’s use of that discretion only in the event of a manifest error of assessment, substantive inaccuracy or misuse of powers. However, even though the judicial review carried out is of limited scope, it requires that the institution concerned, which adopted the contested decision, must be able to show before the Court that in adopting that decision it actually exercised its discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation in question. It follows that the institution concerned must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested decision and on which the exercise of its discretion depended. In so far as it has not been demonstrated that it carried out a forward-looking assessment and took into account, on the one hand, the nature and extent of the reforms which were to take place and, on the other hand, the organisational needs of the institution as a whole, the institution incorrectly used Article 42c of the Staff Regulations, which requires that the institution concerned take into account objective elements relating to its ‘organisational needs’. If that institution fails to do so, the leave provided for in the abovementioned provision runs the risk of being disciplinary in nature for the officials concerned by that measure. In those circumstances, it must be held that the institution exceeded the limits of the wide discretion available to it. (see paras 145-147, 159, 160)