JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

15 September 2011

Case F‑62/10

Jürgen Esders

v

European Commission

(Civil service – Officials – Assignment – 2010 rotation exercise – Article 1d(1) and (4) of the Staff Regulations – Decision C(2008) 3983 – Request for exemption from rotation on grounds of health – Duty to have regard for the welfare of officials – Decision C(2004) 1318 – Reasonable accommodation – Directive 2000/78/EC – Equal treatment – Disability)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Esders seeks annulment of the decision of 27 July 2010 of the Director-General of the Directorate-General ‘Communications’ of the Commission re-assigning him to Brussels.

Held:      The application is dismissed. The Commission is ordered to pay all the costs, with the exception of the applicant’s costs incurred in connection with the hearing on 16 July 2011. The applicant is ordered to bear his own costs in connection with the hearing on 16 June 2011.

Summary

1.      Officials – Organisation of the departments – Assignment of staff – System of rotation of officials assigned to the Commission’s representations

2.      Officials – Equal treatment – Discrimination – General implementing provisions adopted by the Commission – Disability – Obligation to provide reasonable accommodation in the field of employment – Scope

(Council Directive 2000/78, recital 20 and Art. 5; Staff Regulations, Art. 1d(4))

3.      Officials – Administration’s duty to have regard for the welfare of officials – Scope – Enhanced obligation where the health of the official is affected – Limits

(Staff Regulations, Art. 24)

4.      Officials – Organisation of the departments – Assignment of staff – Re-assignment in the context of a procedure for the mandatory rotation of staff

5.      Officials – Actions – Plea alleging the illegality of a decision adversely affecting the official concerned – Possibility of invoking administrative error – Condition

1.      Since the rule laid down in the Commission’s decision on the rotation of officials in representations, which provides that an offer of re-assignment is to be made eight months before the date of the rotation operation, is formulated in the conditional, it follows that it is not strictly binding but indicative, so that failure to comply with that rule cannot in itself entail annulment of a re-assignment decision.

Furthermore, although that rule provides that officials subject to mandatory rotation are to be offered a post corresponding to their profile, that particularly broad concept undoubtedly covers not only the skills already acquired by an official but also those that might be developed by him on the basis of his training or his previous occupational experience.

(see paras 60 and 61)

2.      It may be inferred from the Commission decision on the implementation of Article 1d(4) of the Staff Regulations, concerning the prohibition of discrimination, that the administration must provide reasonable accommodation in order that an official with a disability may be in a position to carry out the essential duties associated with his post. Consequently, although that decision provides, among the types of reasonable accommodation capable of being put in place, for the possibility of amending rules or practices, that provision must be understood as referring to the rules and practices relating to the working conditions and management of staff in relation to a specific post where the person with a disability would be able to carry out the essential duties associated with that post precisely because of the accommodation envisaged. Accordingly, to allow an official to be exempt from any obligation of rotation, without a specific examination of the needs of the post concerned and the appropriate measures, and to do so by reference to reasonable accommodation, would go beyond the requirements envisaged in the Commission decision.

That interpretation is confirmed, moreover, upon reading Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, which cannot be disregarded in the application and interpretation of the Commission’s decision, since that decision was adopted in order to implement Article 1d(4) of the Staff Regulations, which defines ‘reasonable accommodation’ in identical terms to those of Article 5 of that directive.

(see paras 68, 70 and 71)

See:

30 April 2009, F‑65/07 Aayhan and Others v Parliament, para. 121; 4 June 2009, F‑134/07 and F-8/08 Adjemian and Others v Commission, para. 115, under appeal before the General Court of the European Union, Case T‑325/09 P

3.      The obligations arising for the administration from the duty to have regard for the welfare of officials are substantially enhanced where the situation of an official whose physical or mental health is shown to be affected is involved. In such circumstances, the administration must consider that official’s requests with a particularly open mind. Likewise, it is generally incumbent on the medical service of an institution, especially where its attention is drawn, either by the official concerned himself or by the administration, to the allegedly harmful consequences that an administrative decision might have for the health of the person to whom it is addressed, to ascertain the reality and the extent of the risks referred to and to inform the appointing authority of the result of its examination.

Admittedly, the protection of the rights and interests of officials must always have its limit in compliance with the applicable rules, and reliance as against an institution on its duty to have regard for the welfare of its staff can thus never induce it to infringe a legislative rule. However, an institution cannot disregard any obligation arising from its duty to have regard for the welfare of its staff by means of an internal decision of general application, placing strict limits on the exercise of its discretion for the purposes of the application of the Staff Regulations.

(see paras 80-82)

See:

16 March 1993, T‑33/89 and T‑74/89 Blackman v Parliament, para. 96; 10 July 1997, T‑81/96 Apostolidis and Others v Commission, paras 90 and 91; 23 February 2001, T‑7/98, T‑208/98 and T‑109/99 De Nicola v EIB, paras 309 and 310

28 October 2010, F‑92/09 U v Parliament, para. 67; 17 February 2011, F‑119/07 Strack v Commission, para. 85

4.      As regards the alleged risk for the health of an official subject to mandatory re-assignment and receiving therapeutic treatment in the country to which he has been assigned, while a diagnosis issued in the form of a certificate by a doctor benefits from a presumption of accuracy, no such assumption arises in the case of an opinion issued by a doctor on the question whether it is possible to receive such treatment in another country of the European Union, unless that doctor is shown to have made some inquiries in that respect.

(see para. 87)

See:

9 December 2009, T‑377/08 P Commission v Birkhoff, para. 58

5.      While an argument based on positive conduct on the part of the institution or on inaction, such as maladministration of an official’s case and the provision of inaccurate administrative information, may constitute an argument in favour of the institution incurring non-contractual liability for an administrative error, it is not relevant in a dispute as to legality, since an administrative error is not of such a kind as in itself to render a decision illegal, unless that error had an impact on the legality of the decision.

(see para. 92)

See:

9 December 2010, F‑83/05 Ezerniece Liljeberg and Others v Commission, para. 105