JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
7 June 2018 (*)
(Civil service — Members of the temporary staff — Assignment in the interest of the service — Transfer to a new post — Manifest error of assessment — Obligation to state reasons — Right to a fair hearing — Misuse of powers)
In Case T‑597/16,
OW, member of the temporary staff of the European Aviation Safety Agency, represented by S. Rodrigues and C. Bernard-Glanz, lawyers,
applicant,
v
European Aviation Safety Agency (EASA), represented initially by F. Manuhutu and A. Haug, and subsequently by A Haug, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
APPLICATION under Article 270 TFEU for annulment of Decision 2015/155/ED dated 20 July 2015, by which the Executive Director of EASA assigned the applicant to a new post,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, K. Kowalik-Bańczyk and C. Mac Eochaidh (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1 On 1 August 2004, under Article 2a of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), the applicant, OW, was recruited as a temporary agent at grade AD 6, to work on aviation regulation within the European Aviation Safety Agency (EASA).
2 On 16 November 2009, the applicant was recruited as a member of the temporary staff at grade AD 8 for the post of manager of the ‘Air Operations Regulations’ section in the Air Operations Section of the Flight and Standards Directorate (‘the FS Directorate’). That post consisted in managing a team composed of rulemaking experts.
3 From 2009 to 2015, the applicant thus had to manage a number of rulemaking projects in the field of Air Operations. The number of staff managed by the applicant increased progressively from 7 in 2009 to 16 in 2015. On 1 January 2012, the applicant was reclassified to the grade of AD 9.
4 During the year 2014, EASA undertook an internal reorganisation, also referred to as ‘the Convergence Project’. The Rulemaking Directorate ceased to exist and its activities were reallocated amongst several other directorates. The current five directorates are as follows: the Executive Directorate, the Strategy and Safety Management Directorate, the Certification Directorate, the Flight Standards Directorate and the Resources and Support Directorate.
5 By Decision 2014/164/E of the Executive Director of EASA, of 22 October 2014, a new department was created within the FS Directorate named ‘Policy and Planning’ (‘the FS.5 Department’). The FS.5 Department was entrusted with the safety management policy of EASA.
6 On 13 March 2015, the applicant participated in a meeting with Mr S, director of the FS Directorate, aimed at defining the tasks and priorities of the new FS.5 Department. During that meeting, the applicant was informed of the reasons for her contemplated reassignment to the FS.5 Department. On the same day, her new role was described to her and she was provided with a description of her tasks. The applicant summarised the content of that meeting in an email sent to Mr S on 13 May 2015. Mr S replied the next day and sent a modified version of that summary to the other participants in the meeting.
7 Based on the tasks and missions of the FS.5 Department defined during that meeting, a document entitled ‘Safety Management — EASA quo vadis?’ was provided by the applicant to Mr S on 15 June 2015, describing the safety management tasks and missions of the FS.5 Department.
8 On 14 July 2015, another meeting was held between the applicant and M. B, director of the FS.5 Department. The purpose of that meeting was to inform the applicant of her reassignment from the Air Operations Regulations Section to the FS.5 Department. She was also informed that the reassignment would take place on 1 August 2015.
9 On 16 July 2015, the applicant expressed her disagreement with that reassignment in two emails that she sent to Mr B and the Executive Director of EASA, Mr K. Mr B and Mr K replied on 17 July 2016.
10 Further to Decision No 2015/155/ED of the Executive Director of EASA, dated 20 July 2015 (‘the contested decision’), published on 21 July 2015 on the intranet of EASA, the applicant was appointed to the FS.5 Department as ‘Policy and Rulemaking Coordinator’.
11 On 21 July 2015, the day of the publication of the contested decision, Mr S set up a meeting with the applicant to discuss her new tasks.
12 Following this meeting and the publication of the contested decision, the applicant expressed her disagreement with the reassignment and claimed that her new tasks were not clearly defined.
13 On 31 July 2015, a description of tasks as coordinator was provided to the applicant. On 28 August 2015, the applicant received a detailed description of her tasks from Mr B. However, the applicant continued to insist that her list of tasks was not defined clearly enough.
14 On 19 October 2015, the applicant lodged a complaint against the decision with the authority empowered to conclude contracts of employment (‘the AECE’) of EASA under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). In her complaint, the applicant contested her reassignment from a managerial post to a coordination post and requested the AECE to withdraw the contested decision and to redeploy her in her former post or an equivalent managerial post.
15 By decision of 10 February 2016 (‘the decision rejecting the complaint’), notified to the applicant on the same day, the Executive Director of EASA, in his capacity as AECE, rejected the complaint on the ground, first, that the reassignment of the applicant was both in the interest of the service and was sufficiently reasoned and, secondly, that the applicant had not demonstrated that EASA had misused its power by adopting the contested decision.
Procedure and forms of order sought
16 By application lodged at the Registry of the Civil Service Tribunal on 25 May 2016, the applicant brought an action, registered under number F‑27/16, against the contested decision.
17 By letter lodged at the Registry of the Civil Service Tribunal on 25 May 2016, the applicant requested that her name not be disclosed in the context of the publication of the decision.
18 On 24 August 2016, EASA lodged its defence.
19 Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016. That case was registered under number T‑597/16.
20 By letter of 29 September 2016, the Registry of the General Court informed the parties that, since EASA had become aware of the service of the application on e-Curia on 13 June 2016, the deadline for lodging the defence was 23 August 2016. However, EASA lodged its defence on 24 August 2016, the day after the expiry of the time limit set by the Registry.
21 By letter of 18 October 2016, the applicant stated that she did not wish to apply for judgment by default, as provided for by Article 123(1) of the Rules of Procedure of the General Court, and requested the Court to accept the defence lodged on 24 August 2016.
22 On 20 October 2016, the case was assigned to the Sixth Chamber of the General Court.
23 On 1 March 2017 the applicant lodged her reply.
24 On 21 April 2017, EASA lodged its rejoinder.
25 As the composition of the Chambers of the General Court had been altered, the present case was assigned to a new Judge-Rapporteur sitting in the Ninth Chamber.
26 Since the parties had not requested a hearing under Article 106(1) of the Rules of Procedure, the General Court (Ninth Chamber), considering that it had sufficient information available to it from the material in the file, decided to rule on the action without an oral part of the procedure, in accordance with Article 106(3) of the Rules of Procedure.
27 The applicant claims that the Court should:
– declare the action admissible;
– annul the contested decision and, in so far as necessary, the decision rejecting the complaint;
– order EASA to pay the costs.
28 EASA contends that the Court should:
– dismiss the action in its entirety;
– order the applicant to pay all the costs incurred for the purposes of the proceedings.
Law
Preliminary observations
29 It should be recalled at the outset that, according to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has, where that claim, as such, lacks any independent content, the effect of bringing before the General Court the act against which the complaint was submitted (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43). As the decision rejecting the complaint only confirms, in essence, the contested decision, the claim for annulment of the decision rejecting the complaint lacks any independent content and the action must be regarded as being directed against the contested decision.
30 Moreover, although the Staff Regulations make no mention of the term ‘reassign’, it is apparent from the case-law that decisions to reassign are subject, like transfers, as regards the protection of the rights and legitimate interests of the officials concerned, to the rules of Article 7(1) of the Staff Regulations inasmuch as, inter alia, the reassignment of officials may take place only in the interests of the service and in conformity with the principle of equivalence of posts. Whatever the characterisation of the measures at issue, it is in the light of the principles referred to in Article 7(1) of the Staff Regulations that the pleas in law raised by the applicant must be examined (see judgment of 7 February 2007, Clotuche v Commission, T‑339/03, EU:T:2007:36, paragraph 35 and the case-law cited).
31 To substantiate the claim for annulment, the applicant alleges:
– Principally, a single plea in law, alleging manifest error of assessment of the interests of the service and breach of the principle of equivalence of posts;
– in the alternative, four other pleas, alleging, respectively:
– breach of the duty to have regard for the welfare of officials and the principle of good administration;
– misuse of powers;
– infringement of Article 25 of the Staff Regulations and failure to state reasons;
– infringement of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of her right to be heard.
The first plea in law, alleging manifest error of assessment of the interest of the service and breach of the principle of equivalence of posts
32 The applicant’s first plea is divided into two parts, relating to:
– a manifest error of assessment of the interests of the service by the AECE;
– breach of the principle of equivalence of posts.
First part of the first plea in law, alleging manifest error in the assessment of the interest of the service
33 According to the applicant, her reassignment to the FS.5 Department is manifestly contrary to the interests of the service.
34 In the first place, the applicant claims that the creation of the FS.5 Department and the award, to that department, of the implementation of the tasks related to safety management, were not provided for either by the final report on the restructuring of EASA, dated April 2014, or by the decision of 8 December 2014, the purpose of which was to confirm the conclusions of the final report of April 2014. According to the applicant, it was therefore not appropriate to create the FS.5 Department or to reassign her to that department.
35 In the second place, the applicant submits that none of the tasks that she should perform in her new duties relate to security management, that her annual objectives do not relate to safety management and that this duty is actually assigned to other staff members.
36 In the third place, the exact nature of her work is, it is claimed, unclear as there is no description of her job. Her job title does not, it is claimed, correspond to the tasks she actually carries out.
37 In the fourth place, the applicant states that her department of origin and the section that she managed in that department were not reorganised.
38 In the fifth place, the applicant claims that she gave entire satisfaction to her management.
39 In the light of the foregoing, the applicant claims that the contested decision is vitiated by a manifest error of assessment of the interests of the service.
40 EASA disputes those arguments and contends that the applicant’s reassignment to the FS.5 Department is in the interest of the service.
41 It should be noted that, according to settled case-law, the institutions have a wide discretion in the organisation of their departments according to the tasks conferred on them and in the assignment, in view of those tasks, of staff who are made available to them, on condition, however, first, that that assignment is carried out in the interests of the service and, second, that the principle of assignment to an equivalent post is respected (judgments of 23 March 1988, Hecq v Commission, 19/87, EU:C:1988:165, paragraph 6; of 7 February 2007, Clotuche v Commission, T‑339/03, EU:T:2007:36, paragraph 47; and of 7 February 2007, Caló v Commission, T‑118/04 and T‑134/04 EU:T:2007:37, paragraph 99).
42 Having regard to the wide discretion enjoyed by the institutions in the assessment of the interest of the service, review by the General Court of compliance with the conditions relating to the interests of the service must be limited to the question whether the AECE remained within reasonable limits and did not use its discretion in a manifestly incorrect fashion (judgment of 28 October 2004, Meister v OHIM, T‑76/03, EU:T:2004:319, paragraph 64).
43 It should also be noted that the concept of the interests of the service, within the meaning of Article 7(1) of the Staff Regulations, as set down in the case-law, relates to the smooth running of the institution in general and, in particular, to the specific requirements of the post to be filled (see judgment of 19 June 2014 in BN v Parliament, F‑157/12, EU:F:2014:164, paragraph 48 and the case-law cited).
44 Furthermore, while it cannot be denied that the administration has every interest in assigning its officials or other staff to posts in accordance with their aptitudes and their personal preferences, an official cannot for all that be recognised as having a right to perform or retain specific duties (judgments of 22 October 1981, Kruse v Commission, 218/80, EU:C:1981:240, paragraph 7, and of 7 February 2007, Clotuche v Commission, T‑339/03, EU:T:2007:36, paragraph 47).
45 In the present case, EASA sought to put in place a reorganisation of its services that it began in January 2014.
46 That restructuring of the agency led to the discontinuation of the Rulemaking Directorate, whose activities were redistributed to several other departments and in particular to the FS Directorate. The FS.5 Department has been created within that directorate to coordinate, horizontally within the EASA, issues related to safety management systems.
47 According to EASA, that restructuring was necessary, inter alia, to improve internal coordination on this matter among the different teams, to have a uniform message on safety management vis-à-vis the outside world and to ensure that the safety policy it advocates is in line with international standards, in particular the standards of the International Civil Aviation Organisation (ICAO).
48 The applicant’s argument alleging that the creation of the FS.5 Department appeared neither in the Convergence Report, nor in the decision of 8 December 2014 and that, therefore, that department should not have been created cannot succeed. EASA has significant discretion which allows it to make changes to its initial restructuring project. In particular, the creation of the FS.5 Department for the purpose, inter alia, of ensuring internal coordination of the safety management systems, does not appear to be manifestly unreasonable.
49 EASA considered, moreover, that it was appropriate to reassign staff skilled in safety management systems and who belong to other operational directorates to the new FS.5 Department.
50 The parties agree that the applicant had such skills when it was decided to transfer her to that department. It is apparent from several documents in the file that the applicant worked on those matters in the FS.5 Department. In particular, she participated in the drafting of a summary document concerning the implementation of safety management, organised a meeting on those matters and made a presentation on the subject. The decision to reassign her to the FS.5 Department is therefore not manifestly incorrect.
51 The applicant’s argument that, since 2016, she no longer works on safety management systems and which, in the context of the reorganisation, has been assigned to other staff members and that she has been assigned tasks that have little to do with those matters cannot succeed, since, in accordance with the case-law cited in paragraph 44 above, staff members cannot be recognised as having a right to perform or to retain specific duties. Accordingly, EASA could decide to change the content of the tasks assigned to the applicant and consider, without committing a manifest error of assessment, that her background and skills could be used to carry out other tasks, such as the preparation of the ICAO Assembly.
52 The fact that the applicant considers that her tasks are unclear does not suffice to establish a manifest error of assessment by EASA. Evidence in the case file show that she participated in follow-up meetings concerning her future tasks and a description of her objectives was provided to her on several occasions, for example during a meeting on 13 May 2015.
53 The argument that the applicant’s good performance did not justify her reassignment is also unfounded. The reassignment of the applicant is not the result of the quality of her work, but of the intention of EASA to reassign staff skilled in safety management systems to the FS.5 Department. In that regard, it follows from the case-law that the fact that a staff member has very high qualities does not mean that he cannot be reassigned. On the contrary, if the official concerned has performed well in one post, the administration may expect that he will do equally well in a different post that might be entrusted to him (see, by analogy, judgment of 16 April 2002, Fronia v Commission, T‑51/01, EU:T:2002:99, paragraph 56 and the case-law cited).
54 Finally, the applicant’s argument that the fact that her former department (FS.2) had not been restructured constituted proof that her reassignment was not necessary must be rejected. EASA has explained, without being contradicted, that the applicant was appointed in accordance with EASA’s best practice of promoting mobility according to which section managers and heads of department who stayed longer than five to seven years in the same position should be reassigned to a new positon to broaden their skills by being exposed to new challenges. In that regard, the Court does not find any manifest error of assessment.
55 It follows from the foregoing that, in adopting the contested decision, the AECE remained within reasonable bounds and did not assess the interest of the service in a manifestly incorrect way. Accordingly, the first part of the first plea in law must be rejected.
The second part of the first plea, alleging breach of the principle of the equivalence of posts
56 The applicant claims that the contested decision is unlawful in that it breaches the principle of equivalence of posts.
57 The admissibility and the merits of this part will be discussed in turn.
Admissibility of the second part of the first plea in law
58 The applicant acknowledges that the complaint alleging breach of the principle of equivalence of posts, relied upon in the present action, was not raised in her complaint. The applicant states that, at the time when she brought her complaint against the contested decision, on 19 October 2015, she had held her new post for two and a half months. By then her tasking was still under discussion and its precise content remained unclear. She was thus in no position to assess whether her responsibilities corresponded to grade AD 9.
59 According to the applicant, it is only in the context of the present action that she can take a stand on the issue of the equivalence of posts. She states that the complaint, alleging breach of the principle of equivalence of posts, should be deemed admissible.
60 For its part, EASA did not raise a plea of inadmissibility in that regard and replied to the arguments put forward by the applicant.
61 According to settled case-law, the rule of correspondence between a complaint under Article 91(2) of the Staff Regulations and the subsequent action requires that, for a plea before the Courts of the European Union to be admissible, it must have already been raised in the pre-litigation procedure, enabling the AECE to know the criticisms made by the person concerned in respect of the contested decision. That rule is justified by the very aim of the pre-litigation procedure, the purpose of which is to permit an amicable settlement of the differences which have arisen between the officials and other staff in question, on the one hand, and the administration on the other. It follows that, as has consistently been held, the claims submitted in the proceedings before the Courts of the European Union may include only heads of claim based on the same cause of action as that of the heads of claim in the complaint. Those heads of claim may be developed by means of pleas and arguments which did not necessarily appear in the complaint but are closely linked to it (see, to that effect, judgment of 15 July 2015, Rouffaud v EEAS, T‑457/14 P, EU:T:2015:495, paragraph 24 and case-law cited).
62 The question of admissibility concerning the correspondence between the prior administrative complaint and the action is a matter of public policy in so far as it relates to the lawfulness of the administrative procedure, which is an essential procedural requirement. The examination of this question by the court of its own motion is justified, in particular, having regard to the very purpose of the administrative procedure which is to enable the amicable settlements of disputes that arise between officials or other servants and the administration (see, to that effect, judgment of 29 March 1990, Alexandrakis v Commission, T‑57/89, EU:T:1990:25, paragraph 8).
63 Nevertheless, where, in a decision rejecting a complaint, the AECE takes a very detailed position on a matter which had not been raised in the complaint, the arguments put forward by the staff member concerned on that matter, in the action brought before the Courts of the European Union following the rejection of his complaint, must be declared admissible. The silence on the part of the complaint in this respect did not infringe the principles of legal certainty and of respect for the rights of the defence, which underpin the rule of correspondence between the administrative complaint and the action (see, to that effect, judgment of 21 November 2000 in Carrasco Benítez v Commission, T‑214/99, EU:T:2000:272, paragraphs 37 and 38).
64 In the present case the plea alleging a breach of the principle of equivalence of posts was not raised in the administrative procedure by the applicant.
65 However, it would appear that the AECE addressed the issue of the equivalence of posts in the decision rejecting the complaint, in paragraphs 21 and 22 thereof.
66 The second part of the first plea, alleging breach of the principle of equivalence of posts, is therefore admissible.
Admissibility of the second part of the first plea
67 The applicant claims that, of the 12 tasks entrusted to her, only two tasks correspond to grade AD 9 and that one of those two tasks is only temporary. The remaining 10 tasks clearly do not correspond to grade AD 9.
68 EASA confirms the accuracy of the list of tasks drawn up by the applicant. However, EASA argues that those functions correspond to a post at grade AD 9, contrary to what the applicant claims.
69 According to the case-law, in the event of a change in an official’s duties upon reassignment, the principle that the post to which an official is assigned should correspond to his grade, set out, in particular, in Article 7 of the Staff Regulations, calls for a comparison, not between his present and previous duties, but between his present duties and his grade. Accordingly, the rule that the post should correspond to the grade does not preclude a decision from entailing the assignment of new duties which, although they are different from those previously carried out and are perceived by the person concerned as bringing about a reduction of his responsibilities, are nonetheless consistent with a post corresponding to his grade. Thus, an effective diminution of an official’s responsibilities infringes the rule that the post to which an official is assigned should correspond to his grade only if, taken together, his new duties clearly fall short of those corresponding to his grade and post, taking account of their character, importance and scope. Finally, while the Staff Regulations aim to guarantee officials the grade obtained and also a post corresponding to that grade, they do not grant them any right to a specific post, but, on the contrary, leave to the appointing authority the power to assign officials, in the interest of the service, to the various posts corresponding to their grade. Furthermore, while it cannot be denied that the administration has every interest in assigning its officials to posts which accord with their particular aptitudes and their personal preferences, officials cannot be recognised as having a right to perform or to retain specific duties or to refuse any other duties relating to their basic post (see judgment of 19 June 2014, BN v Parliament, F‑157/12, EU:F:2014:164, paragraphs 55 to 57 and the case-law cited).
70 According to the table showing types of posts in Section A of Annex I to the Staff Regulations and referred to in Article 5 of the Staff Regulations, it is apparent that an official of grade AD 9 can occupy either an administrator post or a Head of Unit post (or equivalent).
71 Moreover, it is apparent from the list of tasks relating to the applicant’s new post, set out in Annex A.9 to the application, that, taken together, they do not clearly fall short of the tasks performed by an administrator of grade AD 9. As EASA rightly mentions, the content of the applicant’s new post involves special skills (in-depth technical knowledge, credibility within the institution, diplomatic skills) that are not required for junior administrators or assistants (AST) or secretaries (AST/SC).
72 As is apparent from the case-law recalled in paragraph 69 above, it is not appropriate to compare the functions currently occupied by the applicant with those which she held in her former section management post. The fact that the applicant had managerial responsibilities in her former post does not, therefore, preclude her being reassigned to a post in which she no longer has any managerial responsibility.
73 It follows from the foregoing that, in adopting the contested decision, EASA did not infringe the rule of correspondence between grade and post. The second part of the first plea in law must accordingly be rejected, together with that plea in its entirety.
The second plea in law, alleging breach of the duty to have regard to the welfare of officials and of the principle of sound administration
74 The second plea in law relied on by the applicant alleges breach of the duty to have regard for the welfare of officials and of the principle of good administration.
75 The applicant claims that she repeatedly informed her line managers that she was ready to change posts to take up a management position. However, it is claimed that her reassignment deprives her of the managerial functions that she performed in her previous section management position and restricts her to a purely technical role, which constitutes a ‘demotion’.
76 According to the applicant, her reassignment has serious consequences for her professional future, since that demotion is visible on her curriculum vitae.
77 EASA disputes the applicant’s arguments.
78 It should be noted that, according to settled case-law, the duty of the administration to have regard for the welfare of its staff and the principle of good administration imply, in particular, that when the competent authority takes a decision concerning the situation of an official or other staff member, even in the exercise of a broad discretion, it should take into consideration all the factors which may affect its decision; when doing so, it must take into account not only the interests of the service but also those of the official or staff member concerned (see, with regard to the organisation of the service, judgments of 28 May 1980, Kuhner v Commission, 33/79 and 75/79, EU:C:1980:139, paragraph 22, and of 29 October 1981, Arning v Commission, 125/80, EU:C:1981:248, paragraph 19). Precisely because of the extent of the discretion which the institutions have in evaluating the interest of the service, review by the Courts of the European Union must however be limited to the question whether the competent authority remained within reasonable bounds and did not use its discretion in a manifestly incorrect way (see, to that effect, judgment of 6 July 1999, Séché v Commission, T‑112/96 and T‑115/96, EU:T:1999:134, paragraphs 147 to 149).
79 Furthermore, it should be recalled that the reassignment of a staff member does not require the consent of the staff member. Otherwise, this would have the effect of imposing an unacceptable restriction on the institutions’ freedom to organise their departments and to adjust that organisation as their needs change (see judgment of 22 January 1998 in Costacurta v Commission, T‑98/96, EU:T:1998:6, paragraph 40 and the case-law cited).
80 Furthermore, according to the principles of the civil service of the European Union, an institution has the power, subject to compliance with the rule under the Staff Regulations concerning correspondence between grade and post, referred to in paragraph 69 above, to confer on a staff member duties beneath those which he exercised previously. In that regard, the personal interests of the official or staff member to see their careers develop cannot legitimately take precedence over the interest of the service as defined by the institution, particularly in the context of a reorganisation (see, to that effect, judgment of 16 April 2002, Fronia v Commission, T‑51/01, EU:T:2002:99, paragraph 57).
81 In the present case, it appears that EASA studied the possibility of establishing new sections within the FS.5 Department, one of which could have been managed by the applicant, who wanted to occupy a managerial post. Those sections could not be established because an opinion of the staff committee was opposed to them and EASA decided to take that opinion into account.
82 It is therefore in no way apparent from the case file that EASA failed to fulfil its duty of care towards the applicant. In particular, there is no evidence in the case file to substantiate the thesis that, whereas EASA had considered the creation of a section within the FS.5 Department, the applicant had been excluded from the management of that section.
83 Furthermore, as stated by EASA, the new position of the applicant enables her to carry out new tasks, such as the preparation of the ICAO Assembly, and to expand her network of contacts within the aviation community.
84 The complaint alleging breach of the duty to have regard for the welfare of officials must, therefore, be rejected as unfounded.
85 As regards the complaint alleging breach of the principle of sound administration, it is sufficient to note that the applicant does not put forward, in her pleadings, a legal argument concerning the alleged failures of EASA in respect of that principle.
86 In accordance with Article 76 of the Rules of Procedure, an application initiating proceedings must, inter alia, contain the pleas in law and arguments relied on and a summary of those pleas in law. It must, accordingly, specify the nature of the grounds on which the action is based, which means that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure.
87 Moreover, that summary — albeit concise — must be sufficiently clear and precise to enable EASA to prepare its defence and the General Court to rule on the action, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, it is necessary — if an action or, more specifically, a plea in law, is to be admissible — that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (judgment of 15 September 2016, TAO-AFI and SFIE-PE v Parliament and Council, T‑456/14, EU:T:2016:493, paragraph 149).
88 It follows from the foregoing that the complaint alleging breach of the principle of sound administration must be rejected as inadmissible.
89 The second plea in law must therefore be rejected.
Third plea in law, alleging misuse of powers
90 The applicant claims that EASA was guilty of a misuse of power in so far as the reasons put forward to justify her reassignment are unfounded.
91 The applicant submits that her reassignment took place as a matter of urgency during the summer break, since EASA wrongly considered that the decision could not be taken at a later date because it needed to provide certainty for the other staff members affected by the contested decision and because the Executive Director wanted to go on holiday.
92 According to the applicant, there were, moreover, reasons for the decision to reassign her to the FS.5 Department other than those referred to by EASA in its written pleadings.
93 In that regard, the applicant states that a consultant, Mr J, informed her of the fact that one of EASA’s private stakeholders, sitting on an advisory committee of EASA, informed him about the content of a telephone call between certain members of the EASA advisory committee on 5 August 2015. That person had mentioned to Mr J that the applicant had been dismissed by EASA. The applicant has produced a written statement of Mr X to that effect, in support of her action.
94 The applicant states that, following further investigation she discovered that this assertion stemmed from a meeting summary drafted by Mr E, Managing Director of the Aircraft Owners and Pilots Association (AOPA) of Germany. The summary, it is claimed, related to a meeting between Mr E and Mr K, the Executive Director of EASA, on 30 July 2015. Accordingly, it is claimed that the latter told Mr E that he had ‘made [the applicant] leave EASA due to lack of loyalty to the General Aviation Roadmap’. Those statements were made, it is claimed, in the context of a discussion on the Air Operations Regulation.
95 The applicant claims that this alleged lack of loyalty is wholly without foundation. According to the applicant, that accusation seems to indicate that the Executive Director held a grudge against her for reasons that she is entirely unaware of and that her reassignment was therefore used as a retaliatory measure.
96 EASA disputes those arguments.
97 At the outset, it should be noted that, by her arguments, the applicant is in fact claiming the existence of a misuse of powers committed by EASA.
98 The concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated. In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged. Thus, the overall assessment of evidence of misuse of powers cannot be based on mere assertions or on evidence that is insufficiently clear or is neither objective nor relevant (see order of 19 December 2013, da Silva Tenreiro v Commission, T‑32/13 P, EU:T:2013:721, paragraphs 31 to 33 and the case-law cited).
99 Furthermore, where a reassignment measure has not been deemed to be contrary to the interest of the service, there can be no question of a misuse of powers (see judgment of 19 June 2013, BY v EASA, F‑81/11, EU:F:2013:82, paragraph 70 and case-law cited).
100 In the present case, as was found in the context of the first plea in law, the applicant has not established that the contested decision was contrary to the interest of the service. Accordingly, there can be no question of a misuse of powers.
101 In any event, the applicant has not established, on the basis of objective, relevant and consistent factors, any malicious intent towards her by EASA and, specifically, by the Executive Director. In particular, the written statement of Mr J, produced by the applicant, is not sufficiently precise since it refers to successive oral discussions between several persons, and since the content of the initial remarks allegedly made by the Executive Director could therefore have been easily altered.
102 The third plea, alleging misuse of powers, must therefore be rejected.
The fourth plea, alleging infringement of Article 25 of the Staff Regulations and failure to state reason
103 The fourth plea in law relied on by the applicant alleges infringement of Article 25 of the Staff Regulations and failure to state reasons.
104 In the first place, the applicant claims that the contested decision was adopted in breach of Article 25 of the Staff Regulations, in so far as it was not communicated in writing.
105 Thus, according to the applicant, the contested decision was published on the intranet of EASA but was not the subject of a written notification. The applicant only learned about that publication through one of her colleagues.
106 In the second place, the applicant claims that the contested decision was adopted in breach of Article 25 of the Staff Regulations, in so far as it failed to state adequate reasons.
107 Thus, it is claimed, the applicant had indicated, by means of several emails and discussions with her line managers, that she did not wish to be reassigned to a non-managerial position. She also enquired about the reasons for her reassignment on several occasions, to no avail. The applicant states that she was given no valid reason for adopting the contested decision. Thus, according to the applicant, a formal declaration by EASA according to which the reassignment had been made in the interests of the service does not mean that it was actually made in the interests of the service. According to the applicant, EASA should have explained the reasons why it was in the interests of the service to reassign her to another post.
108 EASA disputes the applicant’s arguments.
109 As regards the claim alleging the lack of written communication of the contested decision, according to the case-law, it is for the AECE to ensure that a reassignment decision, like a transfer decision, actually reaches the addressee or, as the case may be, that the addressee is duly apprised of it (see, by analogy, order of 16 July 2015, FG v Commission, F‑20/15, EU:F:2015:93, paragraph 46 and the case-law cited).
110 In the present case, the contested decision was published on the intranet of EASA on 21 July 2015. In an email of the same day, the applicant’s hierarchical superior drew her attention to the fact that the contested decision had just been published and invited her to a meeting so that he could provide her with explanations for that decision.
111 It follows from the foregoing that the obligation of the AECE to ensure that the applicant is fully informed of the reassignment decision was complied with in the present case, in so far as the applicant’s hierarchical superior sent her an email informing her that the reassignment decision was published on the intranet of EASA.
112 As regards the alleged failure to state reasons in the contested decision, according to settled case-law, the purpose of the obligation to state the reasons for a decision adversely affecting an official, under Article 25 of the Staff Regulation, is to enable the General Court to exercise its power to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it is vitiated by a defect making it possible to challenge its lawfulness (see judgment of 30 November 2010, Taillard vParliament, F‑97/09, EU:F:2010:153, paragraph 33 and the case-law cited).
113 In order to determine whether the requirement to state grounds laid down in the Staff Regulations has been satisfied, it is desirable to take into consideration not only the documents giving notice of the decision but also the circumstances in which that decision was taken and brought to the knowledge of the official concerned. Thus, it may be sufficient that the official concerned was able to know, in particular by departmental memoranda and other communications, the essential factors that influenced the administration in its decision. The General Court stated in particular that conversations with the administration may also enable the official concerned to know the circumstances in which the decision adversely affecting him was taken (see judgment of 29 September 2005, Napoli Buzzanca v Commission, T‑218/02, EU:T:2005:343, paragraph 65 and the case-law cited).
114 In the present case, it must be stated that, as EASA rightly pointed out, the applicant had been informed of the reasons for her reassignment since May 2015, approximately two months before the adoption of the contested decision.
115 Accordingly, in her emails of 21 and 28 April 2015, the applicant informed Mr S, director if the FS Directorate, of an initial proposal of the tasks that she had to perform in her new post.
116 On 13 May 2015, the applicant attended a meeting with Mr S during which the new tasks and priorities of the FS.5 Department were discussed.
117 On 14 July 2015, another meeting was held between the applicant and Mr B, director of the FS.5 Department. The purpose of that meeting was to inform the applicant of her reassignment from the Air Operations Regulations Section to the FS.5 Department. She was also informed that the reassignment would take place on 1 August 2015.
118 On 16 July 2015, Mr B also informed the applicant of her future reassignment and of her new duties. The applicant expressed her disagreement with that reassignment in two emails that she sent to Mr B and the Executive Director of EASA, Mr K. Mr B and Mr K replied on 17 July 2016.
119 On 21 July 2015, the day of the publication of the contested decision, Mr S set up a meeting with the applicant to discuss her new position.
120 It follows from the foregoing that several discussions with the administration allowed the applicant to know the context in which the contested decision had been taken and the essential factors which influenced the administration in its decision.
121 In any event, it should be borne in mind that, in actions brought pursuant to Article 270 TFEU, although a complete lack of reasons cannot be remedied by explanations provided after the action has been lodged since, by that stage, such explanations no longer serve their purpose (see, to that effect, judgments of 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22; of 9 December 1993, Parliament v Volger, C‑115/92 P, EU:C:1993:922, paragraph 23; and of 23 February 1994, Coussios v Commission, T‑18/92 and T‑68/92, EU:T:1994:19, paragraphs 74 to 76), the same does not hold true where there has been an insufficient statement of reasons in the act being challenged that was adopted by the AECE of the defendant institution.
122 In the latter scenario, the defendant institution may, including once litigation is under way, provide additional clarification rendering nugatory a plea alleging a failure to state reasons (see, to that effect, judgments of 30 May 1984, Picciolo v Parliament, 111/83, EU:C:1984:200, paragraph 22; of 8 March 1988, Sergio and Others v Commission, 64/86, 71/86 to 73/86 and 78/86, EU:C:1988:119, paragraph 52; and of 30 November 1993, Perakis v Parliament, T‑78/92, EU:T:1993:107, paragraph 52). If it does so, however, the defendant institution may not substitute a completely new set of reasons for the initial, incorrect reasons set out in the act being challenged (see, to that effect, judgments of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraph 15, and of 6 November 1997, Berlingieri Vinzek v Commission, T‑71/96, EU:T:1997:170, paragraph 79).
123 It is clear that the written submissions of EASA specify the various grounds which led to the contested decision.
124 In particular, EASA explains, in paragraph 15 of its defence, that the creation of the FS.5 Department had the objective of improving internal coordination on safety management policies within EASA, to provide a coherent message on safety management issues externally, in order to ensure EASA compliance with international standards on security management. In paragraph 17 of its defence, EASA argues the need to provide the FS.5 Department with qualified staff. Finally, in paragraph 82 of its defence, EASA points out that the applicant had been assigned to the FS.5 Department on account of her specific skills and background.
125 It follows from the foregoing that the contested decision contains a sufficient statement of reasons.
126 The fourth plea must therefore be rejected.
Fifth plea in law, alleging infringement of Article 41 of the Charter and of the right to a fair hearing
127 The fifth plea in law relied on by the applicant alleges infringement of Article 41 of the Charter and of the right to a fair hearing.
128 The applicant claims to have repeatedly requested EASA to be heard in order to obtain an explanation of the reasons for her reassignment, to no avail.
129 According to the applicant, it was essential that EASA should provide such an explanation in so far as the reassignment adversely affected her, as she had been transferred from a ‘lead’ position to a ‘deliver’ position with unclear responsibilities and tasking, and no job description. Moreover, the applicant states that the transfer adversely affects her future career prospects.
130 EASA disputes those arguments.
131 According to Article 41 of the Charter, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies and agencies of the Union. That right includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken.
132 According to the case-law, when adopting a decision to reassign a staff member, the administration, in so far as such a decision is merely a measure of internal organisation which does not affect his position under the Staff Regulations or infringe the principle that the post to which he is assigned should correspond to his grade, is not, in principle, required to hear the staff member concerned (judgment of 7 March 1990, Hecq v Commission, C‑116/88 and C‑149/88, EU:C:1990:98, paragraph 14, and order of 14 December 2006, Meister v OHIM, C‑12/05 P, EU:C:2006:779, paragraph 104).
133 In any event, it must be noted that, as set out in paragraphs 118 and 119 above, the applicant had the opportunity to express to her line managers her opposition to the reassignment. By way of illustration, in an email of 17 July 2015, the applicant explicitly states that her line managers were aware of her disagreement with her reassignment.
134 It follows from this that the fifth plea must be rejected as unfounded.
135 It follows that the present action must be dismissed in its entirety.
Costs
136 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by EASA.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders OW to pay the costs.
Gervasoni | Kowalik-Bańczyk | Mac Eochaidh |
Delivered in open court in Luxembourg on 7 June 2018.