JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

16 September 2013

Barbara Wurster

v

European Institute for Gender Equality (EIGE)

‛Civil service — Staff of the EIGE — Temporary staff — Procedure for assessing the management capabilities of staff of the EIGE recently appointed to a middle management post — Reassignment to a non-management post — Right to be heard — Scope of the law — Finding made by the Tribunal of its own motion — Substitution of grounds made by the Tribunal of its own motion’

Applications:

brought by Ms Wurster under Article 270 TFUE, the first filed as Case F‑20/12, and the second as Case F‑43/12, seeking, in essence, firstly, an order setting aside the decision of the Director of the European Institute for Gender Equality (‘EIGE’ or the ‘Institute’) of 8 September 2011, reassigning Ms Wurster, with effect from 1 October 2011, to the position of Team Leader of the Resource and Documentation Centre, secondly, annulment of the decision of the director of the EIGE (‘the Director’) of 12 January 2012, not to pay her the management allowance for the period from 1 June 2010 to 30 September 2011, and thirdly, payment of the management allowance for the period from 1 June 2010 to 30 September 2011, together with interest at 2 percentage points over the refinancing rate set by the European Central Bank.

Held:

The Director’s decision of 8 September 2012 to reassign Ms Wurster to the post of Team Leader of the Resource and Documentation Centre is annulled The appeals are dismissed as to the remainder. The EIGE is to bear its own costs and is ordered to pay those incurred by Ms Wurster.

Summary

Actions brought by officials — Interest in bringing proceedings — Assessed as at the time the action is brought — Action retaining its purpose notwithstanding that the applicant had resigned after bringing it — Continuation of interest in bringing proceedings (Staff Regulations, Arts 90 and 91) Actions brought by officials — Unlimited jurisdiction — Recognition of right to an allowance (Staff Regulations, Art. 91(1)) Officials — Members of the temporary staff — Reports procedure — Assessment report on management capabilities — Drawing up — Right to be heard — Scope (Conditions of Employment of Other Servants, Art. 14) EU law — Principles — Force majeure — Meaning — Summer holidays — Not included Actions brought by officials — Plea based on misapprehension of the scope of the law — Finding made by the Tribunal of its own motion Acts of the institutions — Temporal application — Retrospective effect of a substantive rule — Conditions Actions brought by officials — Interest in bringing proceedings — Plea based on infringement of essential procedural requirements — Linked jurisdiction of the administration — Invalid plea in law (Staff Regulations, Art. 91)

The conditions for the admissibility of an action, in particular whether there is a legal interest in bringing proceedings and whether Articles 90 and 91 of the Staff Regulations have been complied with, relate to the question whether there is an absolute bar to proceedings, which must be verified by the court of its own motion. The applicant’s interest in bringing proceedings is to be assessed as at the time when the action is brought, not at the time of the judgment. The fact that a member of the temporary staff has resigned after bringing an action may undoubtedly raise an issue as to whether the action has become devoid of purpose, but where an action does become devoid of purpose this does not, of itself, require the Courts of the European Union to declare that there is no need to adjudicate for lack of purpose. Indeed, even where there is no need to adjudicate on the substantive issues, the Courts must rule on costs, which will depend, in particular, on whether the action was justified at the time it was brought. (see paras 55-57) See: 29 June 2000, C‑154/99 P Politi v European Training Foundation, para. 15; 7 June 2007, C‑362/05 P Wunenburger v Commission, para. 47 23 October 2012, F‑44/05 RENV Strack v Commission, para. 97 The last sentence of Article 91(1) of the Staff Regulations confers unlimited jurisdiction on the Civil Service Tribunal in disputes of a financial character. As part of that unlimited jurisdiction, the Court has power to recognise the existence of a right to allowances. In this regard, by analogy with claims for damages, where a person asks the Tribunal to recognise that he has such a right, on the basis that the decision which led the administration to refuse to pay the allowance was illegal, he must initiate the pre-litigation procedure by making a complaint within 3 months of being notified or learning of the decision, even he is not seeking its annulment. (see paras 61,63) See: 30 November 1993, T‑15/93 Vienne v Parliament, para. 41; 19 June 2007, T‑473/04 Asturias Cuerno v Commission, para. 23, and the case-law cited Any person who is the subject of an assessment report which may have consequences for his career must be given the opportunity to make observations before the report becomes definitive, even where there is no express provision to that effect. The same applies to an assessment report relating to the management capabilities of a member of the temporary staff which is drawn up under provisions internal to a Union agency. In that regard, the fact that the person concerned attended an interview as part of the procedure laid down by Article 14 of the Conditions of Employment of Other Servants does not release the agency from its obligation to hold an interview as part of the procedure for assessing management capabilities. Sending a document in relation to this is not a substitute for holding an interview. While the procedure laid down in Article 14 is intended as an assessment of the aptitude of the person concerned to carry out the tasks attaching to his role and his efficiency and conduct in the service, which must be made of him as a whole, the procedure for assessing management capabilities is intended solely to verify the management capabilities of the person concerned. Furthermore, an act will only be annulled on the basis of a procedural defect where, in the absence of that defect, the outcome might have been different. This condition is satisfied in the case of an assessment report on management capabilities, as such a report is based on value judgments which are subjective and thus, by their nature, susceptible to change. (see paras 75, 77-79, 82) See: 13 December 2005, T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission, para. 156; 25 October 2006, T‑173/04 Carius v Commission, para. 71; 25 October 2007, T‑27/05 Lo Giudice v Commission, para. 49 13 September 2011, F‑4/10 Nastvogel v Council, paras 90 and 94 Force majeure exists only where three conditions are satisfied, namely that the event relied on was extraneous, unforeseeable and unavoidable. This cannot be the case in relation to summer holidays. (see para. 80) Since a plea based on the misapprehension of the scope of the law is a matter of public policy, the Civil Service Tribunal is obliged to raise it of its own motion. If it failed to raise the point that the decision challenged had been taken on the basis of a legal rule which, on the facts of the case, was inapplicable, it would be failing in its duty as judge of the lawfulness of the situation, even if the parties had not put the matter in issue. The purpose of the Tribunal raising points of public policy of its own motion is to ensure compliance with a rule which, by reason of its importance, cannot be left to the to the diligence of the parties or the quality of their pleadings. Consequently, the fact that an applicant has not set out the factual and legal background in sufficient detail does not prevent the Tribunal from examining, of its own motion, a plea based on misapprehension of the scope of the law. (see paras 84, 88) See: 15 July 1994, T‑576/93 to T‑582/93 Browet and Others v Commission, para. 35 29 September 2011, F‑74/10 Kimman v Commission, para. 44, on appeal to the General Court in Case T‑644/11 P Although in general the principle of legal certainty precludes a measure of general application from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected. Furthermore, any such retrospective effect must be clear from the terms, purpose or overall scheme of the provisions in question. Any new rule applies not only to situations yet to arise, but also to the future effects of situations which arose, but were not fully constituted under the old rule. Situations which are not yet fully constituted are cases where, on the date when the legal rule was revoked or amended, the person concerned only partly fulfilled the conditions for the application of that rule. (see paras 93, 95-96) See: 10 February 1982, 21/81 Bout, para. 13; 11 July 1991, C‑368/89 Crispoltoni, para. 17 13 June 2012, F 31/10 Guittet v Commission, paras 47 and 50, and the case-law cited; 13 June 2012, F 63/10 BL v Commission, para. 58 If there is no valid legal basis for an administration’s practice of paying an allowance, then, regardless of the merits of an applicant’s claim to receive the allowance, the administration cannot pay it by way of compliance with a judgment, as such payment would be illegal. (see para. 99) See: 20 May 1987, 432/85 Souna v Commission, para. 20 4 February 2010, F‑15/08 Wiame v Commission, para. 27; 26 September 2011, F‑31/06 Pino v Commission, para. 112

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

16 September 2013

Barbara Wurster

v

European Institute for Gender Equality (EIGE)

‛Civil service — Staff of the EIGE — Temporary staff — Procedure for assessing the management capabilities of staff of the EIGE recently appointed to a middle management post — Reassignment to a non-management post — Right to be heard — Scope of the law — Finding made by the Tribunal of its own motion — Substitution of grounds made by the Tribunal of its own motion’

Applications:

brought by Ms Wurster under Article 270 TFUE, the first filed as Case F‑20/12, and the second as Case F‑43/12, seeking, in essence, firstly, an order setting aside the decision of the Director of the European Institute for Gender Equality (‘EIGE’ or the ‘Institute’) of 8 September 2011, reassigning Ms Wurster, with effect from 1 October 2011, to the position of Team Leader of the Resource and Documentation Centre, secondly, annulment of the decision of the director of the EIGE (‘the Director’) of 12 January 2012, not to pay her the management allowance for the period from 1 June 2010 to 30 September 2011, and thirdly, payment of the management allowance for the period from 1 June 2010 to 30 September 2011, together with interest at 2 percentage points over the refinancing rate set by the European Central Bank.

Held:

The Director’s decision of 8 September 2012 to reassign Ms Wurster to the post of Team Leader of the Resource and Documentation Centre is annulled The appeals are dismissed as to the remainder. The EIGE is to bear its own costs and is ordered to pay those incurred by Ms Wurster.

Summary

Actions brought by officials — Interest in bringing proceedings — Assessed as at the time the action is brought — Action retaining its purpose notwithstanding that the applicant had resigned after bringing it — Continuation of interest in bringing proceedings (Staff Regulations, Arts 90 and 91) Actions brought by officials — Unlimited jurisdiction — Recognition of right to an allowance (Staff Regulations, Art. 91(1)) Officials — Members of the temporary staff — Reports procedure — Assessment report on management capabilities — Drawing up — Right to be heard — Scope (Conditions of Employment of Other Servants, Art. 14) EU law — Principles — Force majeure — Meaning — Summer holidays — Not included Actions brought by officials — Plea based on misapprehension of the scope of the law — Finding made by the Tribunal of its own motion Acts of the institutions — Temporal application — Retrospective effect of a substantive rule — Conditions Actions brought by officials — Interest in bringing proceedings — Plea based on infringement of essential procedural requirements — Linked jurisdiction of the administration — Invalid plea in law (Staff Regulations, Art. 91)