JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

16 December 1997

Case T-19/97

Claude Richter

v

Commission of the European Communities

‛Officials — Leave on personal grounds — Reinstatement — Place of employment — Duty to have regard to the welfare of officials — Principle of sound administration — Action for compensation’

Full text in French II-1019

Application for:

compensation for the damage which the applicant alleges to have suffered owing to the fact that the Commission failed to reinstate him on expiry of his leave on personal grounds in the first vacant post corresponding to his category and grade and the requirements of which he satisfied, contrary to Article 40(4)(d) of the Staff Regulations of Officials of the European Communities.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, a German-language translator in the Commission's translation service in Luxembourg, was granted leave on personal grounds from 16 February 1991; the Commission initially granted leave until 15 February 1992 and then extended it until 15 February 1993 and then until 15 February 1994.

On 16 November 1993 the Head of Unit 1 ‘Personnel Luxembourg’ in the Directorate-General for Personnel and Administration (DGIX) of the Commission, responsible for the reinstatement of officials following leave on personal grounds! asked the applicant whether he sought to be reinstated on 15 February 1994, without specifying the place where he might be reinstated. By fax dated 15 December 1993 the applicant replied in the affirmative without stating the place where he wished to be reinstated.

During 1994 the Commission published three notices of competitions (on 20 January, 20 June and 22 November) relating to posts as German-language translator in Grade LA 8/LA 4 in Brussels. The position within the service was such that it was not possible to offer the applicant immediate reinstatement in Luxembourg. At the end of 1994 a suitable post became available in the translation service in Luxembourg. According to the letter from the Head of Unit 1 of DG IX that post was to be regarded as the ‘first offer’ for the purposes of Article 40(4)(d) of the Staff Regulations. The applicant accepted that post.

In November 1995 the applicant submitted a request under Article 90(1) of the Staff Regulations of Officials of the European Communities (Staff Regulations) for compensation for the damage caused by the service-related fault consisting in the Commission's failure, contrary to Article 40(4)(d) of the Staff Regulations, to reinstate him in the first post as German-language translator to become vacant after 15 December 1993. The Commission did not respond to that request within the time prescribed by the Staff Regulations and the applicant submitted a complaint under Article 90(2) of the Staff Regulations against that implied decision rejecting his request. The Director-General of DG IX, in his capacity as appointing authority, sent the applicant an express decision rejecting his request. On 29 October 1996 Mr Erkki Liikanen, a Member of the Commission, sent an express reply rejecting the applicant's complaint.

Substance

The question arises whether the Commission was under an obligation to offer the applicant the first suitable vacant post irrespective of the place of employment, including, that is, any such post in a place of employment other than that in which the applicant had been employed before taking leave on personal grounds, namely Luxembourg (paragraph 50).

An official whose leave on personal grounds expires is not recognized as having the right to be reinstated in a specific place of employment. Where the Commission offers to reinstate him in a post, however, it is required, by virtue of its duty to have regard to the welfare of officials and the principle of sound administration, to have regard to the official's personal interests, in particular those of a family nature (paragraph 51).

See: 321/85 Schwiering v Court of Auditors [1986] ECR 3199, para. 18; 12/87 Heyl v Commission [1988] ECR 2943, para. 12; T-100/92 La Pietra v Commission [1994] ECRSC II-275, para. 58

As a general rule, it is desirable that the Commission should offer the official the first appropriate vacant post in the same place of employment as that in which he was employed before taking leave on personal grounds. For personal reasons it is generally in the interests of the official concerned to be reinstated in that place (paragraph 52).

The situation would be different, however, if the official were to show clearly and unequivocally, in good time, either that he wished to be reinstated in a specific place other than the one in which he had previously been employed or that he was willing to be reinstated in one or more places other than that in which he had previously been employed. In such a situation it would be for the Commission to take account of the desire thus expressed by the official, so that it might be induced to offer him the first appropriate vacant post in a place of employment other than that in which he had previously been employed (paragraph 53).

In all circumstances, however, the Commission is entitled to offer the official concerned the first suitable vacant post — and therefore even, where appropriate, a post in a place of employment other than that desired by the official — where reinstatement in a specific place of employment is necessary for important reasons associated with the interest of the service (paragraph 54).

See: 161/80 and 162/80 Carbognaniand Coda Zabetta v Commission [1981] ECR 543, paras 21 and 23; Heyl v Commission, cited above, para. 12

In the present case the applicant accepts that he did not, at any appropriate time in the reinstatement procedure, disclose a desire to be reinstated in a specific place other than Luxembourg or that he was willing to be reinstated in one or more places other than Luxembourg. Consequently, by offering the applicant the first suitable vacant post in Luxembourg, the Commission did not commit any unlawful act (paragraphs 55 and 57).

Operative part:

The application is dismissed.