JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)
18 May 2015
Case F‑36/14
Hartwig Bischoff
v
European Commission
(Civil service — Officials — Automatic retirement — Article 23(1) of Annex XIII to the Staff Regulations — Retirement age — Refusal to extend the period of activity — Second paragraph of Article 52 of the Staff Regulations — Interest of the service)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Bischoff seeks annulment of the decision of the appointing authority of the European Commission of 28 March 2014 rejecting his request to extend his service and therefore confirming his automatic retirement from 1 June 2014. Mr Bischoff also seeks compensation for the harm which has resulted or might result from that decision.
Held: The action is dismissed. Mr Bischoff is to bear all of his own costs and is ordered to pay all of the costs incurred by the European Commission.
Summary
1. Judicial proceedings — Originating application — Heads of claim — Amendment in the course of the proceedings — Condition
(Rules of Procedure of the Civil Service Tribunal, Art. 50)
2. Actions brought by officials — Act adversely affecting an official — Definition — Note merely informing a staff member of the date of payment of a retirement pension — Not included
(Staff Regulations, Arts 90(2) and 91(1))
3. Officials — Automatic retirement — Consideration of a request to remain in service — Criteria — Interest of the service — Administration’s discretion — Judicial review — Limits — Manifest error of assessment — Definition — Burden of proof
(Staff Regulations, Art. 52, second para.)
4. Officials — Administration’s duty to have regard for the interests of officials — Scope — Request to remain in service — Factors to be taken into consideration in adopting decision
(Staff Regulations, Art. 52, second para.)
1. Under Article 35 of the Rules of Procedure of the Civil Service Tribunal, which became, after amendment, Article 50 of the Rules of Procedure, only the form of order set out in the originating application may be taken into consideration. Consequently, unless the subject-matter of the dispute is to be changed, as a matter of principle, a party may not submit fresh claims or extend the subject-matter of existing claims in the course of the proceedings. Only where there is a new factor capable of affecting the subject-matter of the action, such as, in particular, the adoption during the proceedings of an act repealing and replacing the contested act, may an applicant amend his claims.
(see para. 22)
See:
Judgment in Glantenay and Others v Commission, F‑23/12 and F‑30/12, EU:F:2013:127, para. 34
2. A note merely informing a staff member of the date from which he will be paid a retirement pension, following expiry of the effects of a decision to retain him in service, does not produce binding legal effects such as to affect his interests directly and immediately by bringing about a distinct change in his legal position and cannot therefore constitute an act adversely affecting him.
(see para. 26)
See:
Judgment in Pimlott v Europol, F‑52/06, EU:F:2007:210, para. 48 and the case-law cited therein
3. Where the appointing authority takes the interest of the service into account for deciding on an official’s request to remain in service beyond the age limit for automatic retirement provided for in the first paragraph, under (a), of Article 52 of the Staff Regulations, it has a broad discretion and the Civil Service Tribunal may not declare the appointing authority’s assessment unlawful unless there has been a manifest error of assessment or misuse of powers.
In that regard, an error may only be classified as manifest where it can be readily detected, in the light of the criteria which the legislature intended to apply to the exercise by the administration of its broad discretion. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings upheld by the administration in its decision implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid.
(see paras 36, 37)
See:
Judgment in Commission v Macchia, T‑368/12 P, EU:T:2014:266, para. 49
Judgments in BB v Commission, F‑17/11, EU:F:2013:14, para. 60, and DG v ENISA, F‑109/13, EU:F:2014:259, para. 44 and the case-law cited therein
4. The administration’s duty to have regard for the interests of its staff reflects the balance of 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 when the authority takes a decision concerning the situation of an official or other staff member, it must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official concerned. The protection of the rights and interests of officials is, however, always subject to compliance with the rules in force.
The interests of the service and the interests of the official are thus two different concepts. In the particular case of the second paragraph of Article 52 of the Staff Regulations, the interests of the official concerned are already taken into account by the fact that he must make a request in order to carry on working beyond the age limit laid down in the Staff Regulations for automatic retirement. According to the very terms of that provision, the decision to be taken by the appointing authority, which is competent to deal with such requests, must be based solely on the interests of the service, and need not take account of the interests of the official making that request. There is thus no need for the official to demonstrate to the appointing authority that he has a personal interest in carrying on working, since that interest is irrelevant in the context of his request.
(see paras 53, 54)
See:
Judgment in Angelidis v Parliament, T‑416/03, EU:T:2006:375, para. 117 and the case-law cited therein