JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

16 July 1998

Case T-93/96

Catherine Prėsle

v

European Centre for the Development of Vocational Training

‛Officials — Change of posting — Obligation to state reasons — Principle of protection of legitimate expectations — Duty of care’

Full text in German II-1111

Application for:

annulment of the decision of the European Centre for the Development of Vocational Training of 22 May 1996 transferring the applicant to Thessaloniki (Greece) as from 1 July 1996.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant was engaged in December 1985 by the European Centre for the Development of Vocational Training (Cedefop) (the Centre) under a contract for an indefinite period and posted to Berlin, where the Centre then had its seat.

On 16 May 1994 the Council determined that the Centre's seat was to be in Thessaloniki.

On 23 January 1995 the Director of the Centre concluded a ‘framework agreement’ with the staff committee on ‘social measures relating to the relocation of the Centre to Thessaloniki’ (framework agreement).

Paragraph 4 of the framework agreement deals with the implementation of procedures aimed at granting the Centre's employees the status of officials of the Communities before the date of transfer to Thessaloniki (4.1) and provides for the eventuality of the persons concerned being unable to leave Berlin (4.3). In the latter case an offer of temporary secondment is proposed; this secondment may be extended where necessary. The provisions of the framework agreement were brought to the applicant's attention, first in a memorandum of 7 February 1995 from the director of the Centre to all the staff, second in a schedule for the application of the framework agreement annexed to the memorandum, third, in a letter of guarantee of 27 February 1995, sent to the applicant pursuant to paragraph 4.1 of the framework agreement, and, fourth, in a number of ‘decisions’ arising from a conciliation meeting between the director and the staff committee on 17 May 1995.

With effect from 1 March 1995 the Centre's staff were made subject to the Conditions of employment of other servants of the European Communities (RAA).

By memorandum of 20 February 1995 the applicant informed the director of the Centre that she did not intend to relocate to Thessaloniki.

By letter of 27 February 1995 (letter of guarantee) the director of the Centre offered the applicant a contract for a fixed period on the basis of Article 2(b) of the RAA.

By memorandum of 25 April 1995 the director of the Centre acknowledged the substance of the personal and/or social reasons given by the applicant for not leaving Berlin. On 31 July 1995 he posted the applicant to the Berlin branch of the Information Office for Germany of the European Parliament from 1 September 1995 to 30 June 1996.

On 1 January 1996 the applicant was appointed an established official.

On 8 May 1996 the applicant requested an extension of her posting in Berlin. She claimed that the personal reasons which prevented her from relocating to Thessaloniki persisted. She further stated that, in spite of applying for various posts, she had not yet been able to ‘transfer to another Community institution’.

By memorandum of 22 May 1996 (contested decision), which the applicant received on 29 May 1996, the director of the Centre rejected that request and stated that he was unable to reconsider the decision of 31 July 1995. He considered that although the family reasons justified the adoption of temporary social measures they did not provide grounds for extending those measures.

On 11 June 1996 the applicant lodged a complaint with the director of the Centre against that decision. In the absence of a reply, that complaint must be regarded as implicitly rejected.

The applicant lodged the application initiating the present proceedings on 14 June 1996, pursuant to Article 91(4) of the Staff Regulations of Officials of the European Communities (Staff Regulations), and at the same time an application for interim measures seeking suspension of the operation of the contested decision; that application was rejected by order of 12 July 1996 in Case T-93/96 R Prėsle v Cedefop [1996] ECRSC II-1093.

Substance

First plea, alleging a breach of the obligation to state reasons

The obligation to give reasons laid down in the second paragraph of Article 25 of the Staff Regulations is intended, on the one hand, to provide the person concerned with sufficient information to determine whether the act adversely affecting him is well founded and whether it is appropriate to bring legal proceedings before the Court and, on the other, to enable the Court to review the legality of that act (paragraph 38).

See: T-237/95 Carbajo Ferrerò v Parliament [1997] ECRSC II-429, para. 82; T-20/96 Pascall v Commission [1997] ECRSC II-977, para. 44; T-142/95 Delvaia v Commission [1997] ECRSC II-1247, para. 84

In order to assess whether the reasons stated for a measure are sufficient it is necessary to place the measure in the context in which it was adopted.

See: C-350/88 Delacre and Others v Commission [1990] ECR I-395, para. 16; T-Ì3/95 Kyrpitsis v ECS [1996] ECRSC II-503, para. 71

As regards the context in which the contested decision was taken, it should be pointed out that when the applicant was established as an official of the Centre she was informed of the content of the framework agreement and of the provisions of the Staff Regulations (paragraph 40).

As regards the reasons on which the contested decision is based, the appointing authority considered the question of the term of the applicant's posting in Berlin. It evaluated the impact of the persistence of the family reasons which justified posting the applicant to Berlin. Finally, the appointing authority determined the question of mobility between institutions (paragraphs 45 to 47).

Having regard to the context, and to the applicant's knowledge thereof, those reasons were sufficiently precise for her to be able to determine whether the decision was well founded and for the Court to review the legality of the decision (paragraph 48).

Second plea, alleging a breach of subjective rights of a contractual nature

Having regard to the broad discretion which the institutions have in organising their departments and in assigning their staff accordingly, a reassignment decision, even if it involves inconvenience for the officials concerned, does not constitute an abnormal and unforeseeable event in their careers (paragraph 60).

See: T-102/95 R Aubineau v Commission [1995] ECRSC II-365, para. 23; T-24/96 R U v Cedefop [1996] ECRSC II-479, paras 61 and 62; T-85/96 R Clarke v Cedefop [1996] ECRSC II-1003, para. 67; Prėsle v Cedefop, cited above

The défendant exercised its discretion when it refused to extend the applicant's posting in Berlin, in particular because the persistence of the personal reasons which had induced it to make the applicant available to a department of the Parliament in Berlin did not provide grounds for extending her secondment (paragraph 62).

Third plea, alleging a breach of the principle of protection of legitimate expectations

The right to claim protection of legitimate expectations extends to any individual who is in a situation in which it appears that the Community administration, by giving him precise assurances, has led him to entertain reasonable expectations. However, an official may not plead a breach of the principle of protection of legitimate expectations unless the administration has given him precise assurances (paragraph 70).

See: T-3/92 Latham v Commission [1994] ECRSC II-83, para. 58; T-534/93 Grynberg and Hall v Commission [1994] ECRSC II-595, para. 51; T-211/95 Petit-Laurent v Commission [1997] ECRSC II-57, para. 72; T-123/89 Cliomel v Commission [1990] ECR II-131, para. 26

In the present case the framework agreement, the letter of guarantee and the decision of 17 May 1995 do not confer a subjective right on the applicant and do not give her precise assurances that her temporary posting in Berlin will be extended (paragraphs 71 and 72).

Since, moreover, the decisions of 7 and 31 July 1995 give no indication that the applicant's posting may be extended they cannot constitute precise assurances (paragraph 74).

The possibility that the applicant may be transferred pursuant to Article 29(l)(c) of the Staff Regulations does not confer on her a subjective right to be so transferred (paragraph 75).

Last, it should again be pointed out that it follows from the cases in which the orders in U v Cedefop and Clarke v Cedefop, cited above, were made that there is no administrative practice whereby the temporary measures available for officials are extended until they find another post (paragraph 77).

Fourth plea, alleging a breach of the principle of the duty of care

The duty of the administration to have regard for its servants' welfare reflects the balance of the reciprocal rights and obligations established by the Staff Regulations in the relationship between a public authority and civil servants. That duty implies, in particular, that where such an authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned (paragraph 83).

See: 321/85 Schwiering v Court of Auditors [1986] ECR 3199, para. 18; T-33/89 and T-74/89 Blackmann v Parliament [1993] ECR II-249, para. 96; Kyrpitsis v ESC, cited above, para. 52; Petit-Laurent v Commission, cited above, para. 75

The defendant's duty to have regard for its officials' welfare did not require it to grant the applicant a lengthy period to seek another post within the Community institutions, especially since, in the meantime, the post allocated to her was borne by the defendant's budget but did not allow the defendant to benefit accordingly (paragraph 84).

In the present case the defendant took sufficient account of the difficulties of the applicant's family situation (paragraph 85).

Operative part:

The application is dismissed.