ORDER OF THE PRESIDENT OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

27 May 2011 ( )

(Civil Service — Interim proceedings — Application for interim measures — No need to adjudicate on the application for suspension of a decision)

In Joined Cases F-5/11 R and F-15/11 R,

APPLICATIONS under Articles 278 TFEU and 157 EA, and also under Article 279 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof,

Peter Mariën, a member of the contract staff of the European Commission residing in Kabul (Afghanistan), represented by B. Theeuwes and F. Pons, lawyers,

applicant,

v

European Commission, represented by G. Berscheid and B. Eggers, acting as Agents,

defendant in Case F-5/11 R,

and

European External Action Service (EEAS), represented by H. Cameron and G.-J. van Hegelsom, acting as Agents,

defendant in Case F-15/11 R,

THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

makes the following

Order

1 By application against the European Commission, received at the Registry of the Tribunal by email on 21 January 2011 (the original being lodged on 31 January 2011) and registered as Case F-5/11 R (‘the first application for interim relief’), Mr Mariën seeks, inter alia, suspension of the decision of 11 January 2011 by which the Head of the European Union Delegation in Kabul (Afghanistan) (‘the Head of Delegation’) asked him to move from the hotel in which he was staying temporarily and into the secure residential compound recently built for Delegation staff (‘the Delegation compound’).

2 By application against the European External Action Service (EEAS), received at the Registry of the Tribunal by email on 18 February 2011 (the original being lodged on 24 February 2011) and registered as Case F-15/11 R (‘the second application for interim relief), Mr Mariën submits the same claims as those submitted in the first application for interim relief.

Legal context

3 On 26 July 2010 the Council of the European Union adopted Decision 2010/427/EU establishing the organisation and functioning of the European External Action Service (OJ 2010 L 201, p. 30).

4 Article 1b of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), as amended by Regulation (EU, Euratom) No 1080/2010 of the European Parliament and of the Council of 24 November 2010 (OJ 2010 L 311, p. 1), reads as follows:

‘Save as otherwise provided in these Staff Regulations,

(a) the [EEAS],

(b) the European Economic and Social Committee,

(c) the Committee of the Regions,

(d) the European Ombudsman, and

(e) the European Data Protection Supervisor

shall, for the purposes of these Staff Regulations, be treated as institutions of the European Union.’

5 Annex X to the Staff Regulations lays down the special and exceptional provisions applicable to officials serving in a third country. Article 5(1) of that annex provides that if the institution provides the official with accommodation which corresponds to the level of his duties and to the composition of his dependent family, he is required to reside in it. By virtue of Article 118 of the Conditions of Employment of Other Servants of the European Union, as amended by Regulation No 1080/2010, Annex X to the Staff Regulations applies by analogy to contract staff serving in third countries.

6 On 22 December 2010 the Commission adopted Decision SEC (2010) 1622 on the ‘Delegation of Appointing/Contracting Authority powers for Commission staff serving in Delegations and conditions for the acceptance by the Commission of the delegation of such powers from the EEAS’, which was published in Administrative Notice No 02-2011 of 20 January 2011.

Background to the dispute

7 In January 2010 the applicant was recruited as a contract agent in Function Group IV within the Commission Delegation in Kabul.

8 Upon his arrival in Kabul in January 2010, the applicant stayed temporarily in the Hotel Serena, which also accommodated a number of other members of staff from the Commission Delegation pending completion of works on the construction and renovation of a secure compound designed to house offices and residential accommodation for the Delegation.

9 In May 2010 some of the Delegation staff moved into the Delegation compound.

10 On 1 December 2010 the Director-General for Human Resources and Administration of the Commission sent the applicant an email concerning the impact of the creation of the EEAS on his function. The email informed the applicant that he would remain attached to the Commission, since the function to which he was currently attached was not amongst those to be transferred to the EEAS.

11 On 11 January 2011 the Head of Delegation informed the Delegation staff by email that works to connect the Delegation compound to three phase city power had been completed and that this therefore fulfilled ‘the main recommendation set out by [the institution’s] HQ with regards to works required in the [Delegation] compound’. In that email the Head of Delegation also asked, first, members of staff who had moved temporarily out of the Delegation compound and into the Serena Hotel, because of power cuts that had recently occurred in the Delegation compound, to move back to their apartments the next day and, secondly, the applicant and one of his colleagues, who had not lived in the compound before, to move there before 14 January 2011. The Head of Delegation stated that the only persons exempt from the obligation to move into the Delegation compound were those who were leaving the Delegation in the next few weeks. It is the arrangements contained in that email concerning the applicant which are at the origin of the dispute.

12 On 14 January 2011 the applicant moved into the accommodation that was allocated to him within the Delegation compound in order to comply with the instructions of his hierarchy.

13 On 15 January 2011 the applicant sent an email to the Head of Delegation telling him in essence that he did not agree with the latter’s assessment of the situation as regards completion of the works on the Delegation compound and, in particular, compliance of the building with certain safety standards. The applicant concluded by informing the Head of Delegation that since the latter had rejected his suggestion that he approach the Commission’s mediation service he felt obliged to seek legal redress.

14 In response to the applicant’s email of 15 January 2011, the Head of Delegation had a one-to-one meeting with the applicant. At that meeting the Head of Delegation offered the applicant accommodation in the building which had housed his former residence, explaining that it was a new building and complied with all the security measures requested by the Delegation’s security cell. The applicant turned down that offer, on the ground that the apartment which was being offered him was too close to the street.

15 On 18 January 2011 the Head of Delegation sent a memorandum to the applicant in which he confirmed that, following the completion of the works, there was no longer any reason to justify the non-occupation of the apartments in the Delegation compound. The Head of Delegation none the less again offered the applicant the possibility, if he was uncomfortable about the apartment he had been allocated within the compound, of moving into the vacant apartment in the Head of Delegation’s former residence.

16 On 21 January 2011 the applicant lodged a complaint with the Commission against the provisions of the email from the Head of Delegation of 11 January 2011 requesting him to move into the Delegation compound no later than 14 January (‘the decision of 11 January 2011’). On the same day the applicant lodged the first application for interim relief.

17 By memorandum of 4 February 2011, the Human Resources and Administration Director of the EEAS (‘the Human Resources Director’) suggested to the Head of Delegation that, unless the landlord of the Delegation compound had corrected the problems in the meantime, he should go back on his decision of 11 January 2011 and allow the applicant to move into the Serena Hotel or into another hotel where his safety would be assured.

18 On 6 February 2011 the Head of Delegation replied to the Human Resources Director by a memorandum in which, after explaining in detail the reasons which had led him to adopt the decision of 11 January 2011, he informed him of the recent progress of work within the Delegation compound and of the measures he had taken and proposed to take in order to resolve the applicant’s case.

19 The Head of Delegation stated that one of his prime concerns as Head of the Commission Delegation in Afghanistan was for the security of the staff and that the transfer of staff staying in the Serena Hotel to the Delegation compound had been one of his priorities. In fact, the Serena Hotel was one of the locations in Kabul that was most under threat. On 14 January 2008 that hotel had been attacked by the Taliban, resulting in the death of several guests. On other occasions one of the staff members of the Delegation had had a grenade fired through his bedroom window while he was in the office, and several other staff members had had rockets land close to them within the hotel grounds. Many Member States had total bans on access by their staff to the hotel or only allowed their staff very restricted access to it.

20 As regards recent progress of works within the Delegation compound, the Head of Delegation stated that, on 18 January 2011, experts from the European Union Police Mission in Afghanistan (‘EUPOL’) had inspected the electrical installations of the compound and their connection to the city grid and had reported that the work had been done to a good standard for Afghanistan with only some minor issues remaining to be resolved.

21 The Head of Delegation also informed the Human Resources Director that he had offered the applicant accommodation in his former residence, an offer which the applicant had turned down. He concluded that in such circumstances the only two possible options which seemed to exist in order to resolve the issue of the applicant’s accommodation were either to ask EUPOL whether the applicant could be housed in their residential compound or, in order to find a long-term solution, to recall the applicant on mission to Brussels (Belgium) until he could be transferred to another delegation.

22 On 7 February 2011 the contractor for the works within the Delegation compound informed the member of the Delegation staff responsible for the site that the works which had been requested with regard to electrical installations in the apartments had been carried out.

23 On 7 February 2011 also, in response to the Head of Delegation, the Human Resources Director suggested that since, first, there was no apartment vacant within the EUPOL compound, secondly, there were security concerns regarding hotels in Kabul and, lastly, works had recently been carried out within the Delegation compound, the applicant should be able to choose another apartment within the Delegation compound among those in which works, assessed by EUPOL as meeting the appropriate standards, had just been carried out. The Human Resources Director also suggested an alternative solution, that the applicant could move, as early as the following day, into the Netherlands residential compound, where accommodation was available.

24 By memorandum of 8 February 2011, Mr V., on behalf of the Head of Delegation, offered the applicant a choice of three vacant apartments located within the Delegation compound, and he was requested to contact the administration section to arrange visits, and also the option of moving immediately to the Netherlands Embassy compound, which he could visit that very day.

25 By email sent the same day to Mr V., the applicant replied that he could agree to the proposals that had been made to him provided it was confirmed (i) that the accommodation offered him in either compound was a permanent solution and (ii) that the accommodation had been verified by a qualified expert and was considered safe and in line with the applicable standards, as shown by a certificate of an independent recognised agency in the case of the Delegation compound, and by a statement of compliance or a verification report drawn up before the compound was occupied in the case of the Netherlands Embassy compound. The applicant added that as soon as a suitable solution was found he would send a proposal for a written agreement, an agreement which would enable him to terminate his claim before the Commission and his action before the European Court. The applicant further added that an agreement would also need to be found as regards compensation for the costs he had incurred, including his legal costs.

26 By letter of 9 February 2011, the Commission informed the applicant that his complaint should have been made against the EEAS, and that therefore it had registered his claim ‘on behalf of the EEAS’. The Commission also informed the applicant that he would receive a reasoned decision from the EEAS within four months of the date of submission of his complaint, and that the absence of a reply by the end of that period would be deemed to constitute implicit rejection of the complaint, against which he could appeal under Article 91 of the Staff Regulations.

27 By email sent on 24 February 2011 the applicant informed Mr V. that, even if the Netherlands Embassy compound appeared not to pose any problem in relation to the electricity and safety issues, moving there was not a feasible alternative since one of the two rooms proposed was affected by damp and the second was too small, being less than 18 square metres. As regards the Delegation compound, the applicant reiterated his request to receive an independent expert report. In that connection, he expressed the opinion, firstly, that the report by EUPOL could not be regarded either as being thorough or as having been drawn up on an independent basis and, secondly, that the declaration by the contractor responsible for the works within the Delegation compound as to the completion of the electrical works did not come from an independent source either.

Procedure and forms of order sought

28 By application against the European Commission received at the Registry of the Tribunal by email on 21 January 2011 (the original being lodged on 31 January 2011), the applicant seeks, inter alia, annulment of the contested decision. That application was registered at the Registry of the Tribunal as Case F-5/11.

29 In the first application for interim relief, the applicant claims that the President of the Tribunal should:

– suspend the decision of 11 January 2011;

– allow him to maintain his residence in the Serena Hotel until such time as the Head of Delegation designates permanent accommodation for him located:

– either in the Delegation compound, upon approval of the accommodation by a qualified independent expert, to be appointed by the Commission to verify that the recommendations of the Commission expert report have been implemented and that the accommodation is declared safe, in accordance with the European norms as set out in the aforementioned report;

– or in the vicinity of the Delegation compound and upon approval of the accommodation by a qualified independent expert, to be appointed by the Commission to verify that the recommendations of the Commission expert report have been implemented and that the accommodation is declared safe, in accordance with the European norms as set out in the aforementioned report, and upon approval by the Regional Security Officer to ensure the safety of the location of the accommodation;

– order the Commission to bear the costs of the expert report and all the temporary accommodation costs;

– grant the application for interim measures even before the Commission has submitted its observations, pursuant to Article 104(3) of the Rules of Procedure of the Tribunal, in view of the immediate danger for the applicant’s safety and physical integrity.

30 The Commission, which submitted its written observations on 8 February 2011, contends that the Tribunal should dismiss the first application for interim relief on the ground that the main action is manifestly inadmissible. That action should have been brought not against the Commission but against the EEAS, to which the powers of the Commission’s appointing authority and its authority empowered to conclude contracts of employment have been delegated, in the case of the application of Article 5 of Annex X to the Staff Regulations.

31 On 17 February 2011 the applicant submitted a request that his name and those of his colleagues should be omitted from publications relating to the case. That request was rejected so far as the applicant was concerned in the absence of ‘legitimate reasons’ within the meaning of Article 44(4) of the Rules of Procedure.

32 By application against the EEAS received at the Registry of the Tribunal by email on 18 February 2011 (the original being lodged on 24 February 2011) and registered as Case F-15/11, the applicant seeks, inter alia, annulment of the decision which is the subject of the second application for interim relief.

33 In the second application for interim relief, the applicant sets out the same claims as those submitted in the first application for interim relief but makes them against the EEAS.

34 On 8 April 2011 the EEAS submitted its observations on the second application for interim relief. Whilst not disputing the admissibility of the main action registered on 18 February 2011, the EEAS contends that the second application for interim relief should be dismissed on the ground, inter alia, that the application for interim measures, and also the main action, had become devoid of purpose as a result of the various offers of accommodation that had been made to the applicant.

35 By order of 24 May 2011, the President of the Tribunal, after hearing the parties, in view of the connection between the two applications for interim relief, ordered them to be joined for the purposes of the interim order, on the basis of Article 46(1) of the Rules of Procedure.

Law

The claim seeking suspension of the decision of 11 January 2011

36 In its applications for interim relief, the applicant seeks suspension of the decision of 11 January 2011 instructing him to move into the apartment allocated to him within the secure compound built for Delegation staff.

37 It is apparent from the facts set out in paragraphs 14 and 15 of the present order that, at a meeting held between 15 and 18 January 2011, the Head of Delegation offered the applicant accommodation in his former residence and that he repeated that offer of accommodation in a memorandum of 18 January 2011. Moreover, as stated in paragraph 24 of the present order, by memorandum of 8 February 2011, Mr V., on behalf of the Head of Delegation, offered the applicant a choice of accommodation that was immediately available within the Delegation compound and within the compound of the Netherlands Embassy.

38 The memoranda of 18 January and 8 February 2011 do not expressly state that their purpose is to revoke the decision of 11 January 2011. Nevertheless, they may be considered to implicitly revoke that decision since, first, by offering the applicant apartments other than the one which had initially been allocated to him they remove for the future the exclusive obligation that had been imposed on him to live in that apartment and, secondly, the exchange of letters between the Human Resources Director and the Head of Delegation (see paragraphs 17 to 21 and 23 above) show that the latter intended to reverse the instruction given in the decision of 11 January 2011.

39 Since the decision of 11 January 2011 has exhausted its effects during the proceedings in the present case, the President of the Tribunal finds that there is no longer any need to adjudicate on the claim for suspension of that decision.

40 That finding cannot be invalidated by the fact that the applicant turned down, or accepted only under certain conditions, the offers of alternative accommodation which were made to him. It is clear from Article 5(1) of Annex X to the Staff Regulations that the obligation incumbent on a staff member to reside in the accommodation which is provided for him is not conditional upon his agreement. In particular, in circumstances where the obligation is formulated by the competent authority in terms of choosing between two or more specified places of accommodation, it is not open to the staff member to unilaterally attach to the options available conditions or variations desired by him.

41 Consequently, the offers of alternative accommodation made to the applicant by the abovementioned memoranda of 18 January and 8 February 2011 removed the initial, exclusive obligation contained in the decision of 11 January 2011 to reside in the apartment allocated within the Delegation compound, without his agreement being necessary in order for that obligation to be removed for the future. Furthermore, while the applicant did finally remain in the accommodation which had been allocated to him at the beginning, despite the various offers subsequently made to him, this possibility was implicitly included in the limited choice offered to the applicant by the authority empowered to conclude contracts of employment in place of the original, more restricted obligation placed on him during the period from 11 January 2011 until the first offer of alternative accommodation was made.

42 It follows that there is no longer any need to adjudicate on the claim for suspension of the decision of 11 January 2011, without prejudice to the decision that will be taken by the Tribunal in the main action regarding the applicant’s interest in seeking annulment, with retrospective effect, of the contested decision in respect of the period during which it produced its effects.

The claims for the applicant to be allowed to maintain his residence at the Serena Hotel until the Head of Delegation provides him with permanent accommodation, and for an order that the Commission or the EEAS must bear the costs relating to such temporary accommodation

43 Since the applicant was offered a choice of permanent accommodation, there is no longer any need to adjudicate on these claims. In any event, such claims, since they ask the Tribunal to issue a direction to the administrative authority, must be declared inadmissible.

44 It is clear from the foregoing that the applications for interim relief should be dismissed, without there being any need to examine, in the context of the present order, the plea of inadmissibility raised by the Commission against the first application for interim relief.

Costs

45 It should be noted that Article 86 of the Rules of Procedure provides that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings, which is to be construed as being the decision closing the main proceedings (order of the President of the Tribunal of 14 July 2010 in Case F-41/10 R Bermejo Garde v EESC, paragraph 91).

46 It is therefore appropriate to reserve the costs.

On those grounds,

THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

hereby orders:

1. There is no need to adjudicate on the claim for suspension of the decision of 11 January 2011 by which the Head of the European Union Delegation in Kabul (Afghanistan) asked Mr Mariën to move from the hotel in which he was staying temporarily and into the secure residential compound recently built for Delegation staff.

2. The remainder of the claims of the applications for interim relief in Joined Cases F-5/11 R and F-15/11 R are rejected.

3. The costs are reserved.

Luxembourg, 27 May 2011.

W. Hakenberg P. Mahoney