JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
14 February 2019 (*)
(Civil service — Accredited parliamentary assistants — Sick leave — Sick leave spent elsewhere than at the place of employment — Unauthorised absence — Article 60 of the Staff Regulations — Duty of care — Principle of good administration)
In Case T‑91/17,
L, accredited parliamentary assistant at the European Parliament, represented by I. Coutant Peyre, lawyer,
applicant,
v
European Parliament, represented by M. Windisch and Í. Ní Riagáin Düro, acting as Agents,
defendant,
application based on Article 270 TFEU and seeking annulment of the decision of the European Parliament of 31 August 2016 concerning unauthorised absences of the applicant,
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 22 May 2014, the applicant, L, was recruited by the authority empowered to conclude contracts of employment (‘the AECE’) of the European Parliament as an accredited parliamentary assistant (‘APA’) to assist a member of that institution (‘the M.E.P.’), under a contract expiring at the end of the 2014/2019 parliamentary term, with Brussels (Belgium) as the place of employment.
2 On 1 August 2016, the applicant sent a medical certificate to the Medical Leave Service of the Parliament (‘the Medical Leave Service’) issued in Brussels, for the period from 30 July to 7 August 2016.
3 On 8 August 2016, in the late afternoon, the applicant sent a new medical certificate to the Medical Leave Service, issued on the same date in [confidential], (1) for the period from 8 to 12 August 2016.
4 On the same day, a few minutes after sending that certificate, the Medical Leave Service sent the applicant, by email, a standard acknowledgement of receipt requesting him to specify the address where he could be contacted during that period of sick leave. That standard reply was accompanied by a copy of the decision of the Secretary-General of 12 September 2014 laying down internal rules on medical examinations in connection with absence from work on medical grounds and periodic medical examinations of persons claiming the invalidity allowance (‘the internal rules on absences on medical grounds’).
5 On the same day, a few minutes after receiving the email referred to in paragraph 4 above, the applicant informed the Medical Leave Service, by email, of his address in [confidential], his telephone number as well as the date fixed for his next medical examination.
6 According to the Parliament, on 9 August 2016, the Medical Leave Service asked the applicant, by email, whether he had obtained prior authorisation from the AECE to leave his place of employment in order to spend his sick leave in [confidential]. The applicant denies having received such an email.
7 Two other medical certificates, issued in [confidential] and covering the period from 13 to 17 August 2016 and from 18 to 22 August 2016, were then sent by the applicant to the Medical Leave Service.
8 By decision of 26 August 2016 (‘the decision of 26 August 2016’) the Parliament considered, on the basis of Article 60 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), that the period of absence between 8 and 22 August 2016 was unjustified because the applicant had not obtained prior authorisation from the AECE to spend his sick leave elsewhere than at the place where he is employed. Consequently, under that decision, the period of absence between 8 and 22 August 2016 had to be deducted from the applicant’s annual leave or, where appropriate, deducted from his salary if there was no outstanding leave entitlement. That decision was sent to the applicant by email and by registered letter.
9 On the same day, the applicant challenged the decision of 26 August 2016 by means of two emails sent to the Medical Leave Service.
10 The applicant subsequently sent two new medical certificates drawn up in [confidential] to the Medical Leave Service, covering his absences from 23 to 27 August 2016 and from 28 August to 2 September 2016.
11 On 30 August 2016, the applicant sent a new medical certificate, issued in Brussels, with regard to the period from 28 August to 4 September 2016.
12 By decision of 31 August 2016, the Parliament considered that the applicant’s absence in respect of the period from 28 August to 4 September 2016, as certified by the medical certificate issued in Belgium, was justified. The Parliament, on the other hand, in that decision considered that the applicant’s absence in respect of the period from 23 to 27 August 2016 was unauthorised in the light of Article 60 of the Staff Regulations, in so far as the applicant had not obtained prior permission from the AECE to spend his sick leave other than at the place of his employment.
13 On 29 September 2016, the applicant lodged a complaint against the decision of 31 August 2016 and that of 26 August 2016, under Article 90(2) of the Staff Regulations.
14 By decision of 8 February 2017, the Secretary-General of the Parliament rejected that complaint as unfounded.
Procedure and forms of order sought
15 By application lodged at the Court Registry on 30 January 2017, the applicant applied for legal aid, which was granted by order of the President of the General Court of 19 October 2017.
16 By application lodged at the Court Registry on 29 November 2017, the applicant brought the present action.
17 The applicant brought an application under Article 66 of the Rules of Procedure of the General Court, seeking anonymity and the exclusion of certain personal data from public view, which was granted by the Court.
18 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 hearing, in accordance with Article 106(3) of the Rules of Procedure.
19 In the application, the applicant claims that the Court should annul the decision of 31 August 2016.
20 In the reply, the applicant claims that the Court should order the Parliament to pay him the sum of EUR 100 000 by way of compensation for the non-material damage he suffered as a result of the infringement of European Union law.
21 The Parliament contends that the Court should:
– declare the action inadmissible and, in any event, unfounded;
– order the applicant to pay the costs.
Law
The claim for annulment
The objection of inadmissibility raised by the Parliament
22 In its defence, the Parliament raises a plea of inadmissibility based on three grounds.
23 In the first place, the Parliament submits that the applicant has not stated sufficiently clearly in the application whether or not the decision of 26 August 2016 was the subject matter of the action.
24 In the second place, the Parliament states that the applicant probably made a typographical error by stating in paragraph 1 of the application that the sick leave related to the period from 23 June 2016 to 27 June 2016, whereas he presumably intended to refer to the period from 23 August 2016 to 27 August 2016. The Parliament states that that error was repeated in several paragraphs of the application and in the complaint. Accordingly, the Parliament argues that the application lacks clarity and completeness, in breach of Article 76(d) of the Rules of Procedure.
25 In the third place, the Parliament contends that the decision of 31 August 2016 does not adversely affect the applicant in that it reclassifies the period from 28 August 2016 to 4 September 2016 as justified sick leave in view of the medical certificate issued in Belgium and that, consequently, the action against the decision of 31 August 2016 is admissible only in so far as that decision classifies the period from 23 August 2016 to 27 August 2016 as an unauthorised absence of the applicant.
26 The applicant challenges the Parliament’s arguments.
27 As regards, in the first place, the Parliament’s argument relating to the lack of clarity of the subject matter of the action, it is true that according to paragraph 53 of the application, the applicant claims that the decisions of 26 August 2016 and 31 August 2016 should be set aside, which could mean that the applicant intends to challenge those two decisions. However, it is clear from the presentation of the subject matter of the action on the cover page of the application, in paragraph 1 of the application and the part thereof entitled ‘3. Conclusion’ that only the decision of 31 August 2016 is the subject matter of the action.
28 As regards, in the second place, the Parliament’s argument relating to typing errors in respect of the dates of a sick leave period, it appears that, although they were repeated several times in the application, those errors did not inhibit the Parliament’s understanding of the applicant’s arguments, as it is apparent from the facts set out in the application that each time the applicant mentioned the period from 23 June 2016 to 27 June 2016, he intended to refer to the period from 23 August 2016 to 27 August 2016. In that regard, the very fact that Parliament speaks of ‘typing errors’ indicates that it identified the errors as such.
29 As regards, in the third place, the Parliament’s argument regarding the fact that a part of the decision of 31 August 2016 does not adversely affect the applicant and that he is therefore not entitled to seek the annulment of that part of the decision, it should be recalled that, according to settled case-law, a claim for annulment is not admissible unless the applicant has an interest in having the contested measure annulled. In order for such an interest to be present, the annulment of the measure must of itself be capable of having legal consequences or, to put it differently, the action must be liable, if successful, to confer a benefit on the party who has brought it (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:F:2017:282, paragraph 76 and the case-law cited). Thus, it is true that the applicant has no interest in the annulment of the decision of 31 August 2016 in so far as it qualifies the period from 28 August 2016 to 4 September 2016 as justified sick leave.
30 It follows from the foregoing considerations that the action for annulment of the decision of 31 August 2016 is admissible only in so far as that decision qualifies the period from 23 August 2016 to 27 August 2016 as an unauthorised absence (‘the contested decision’).
Substance
31 In support of its claim for annulment, the applicant raises two pleas in law based, first, on the protection of whistle-blowers and, secondly, on infringement of the duty of care and of the principle of good administration.
– The first plea, based on the protection of whistle-blowers
32 In the context of his first plea, the applicant claims that the M.E.P. threatened to kill him, as the applicant was a witness in several criminal investigations undertaken by the [confidential] authorities and by the European Anti-Fraud Office (OLAF), with regard to corruption and misappropriation of EU funds in which that M.E.P. was allegedly involved.
33 In that regard, the applicant mentions that he fell ill because of psychological stress caused by his difficult relationship with the M.E.P. and that he had to leave Brussels, his place of employment, abruptly, to go to [confidential] on 7 August 2016, in order to avoid a threat to his life by that M.E.P., who did not want to return to [confidential] for fear of being arrested and jailed.
34 The applicant claims that the Parliament infringed EU law and [confidential] law on the protection of whistle-blowers and witnesses in criminal proceedings by declaring his absence from 23 August to 27 August 2016 to be unauthorised.
35 Moreover, the applicant maintains, in his reply, that his unauthorised absences are linked to the fact that Parliament did not reply to the request for assistance which he had lodged concerning acts of psychological harassment directed against him by the M.E.P.
36 The Parliament disputes that argument.
37 Under the first paragraph of Article 60 of the Staff Regulations, applicable by analogy to APAs by virtue of Article 131(5) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), except in case of sickness or accident, an official may not be absent without prior permission from his or her immediate superior. Moreover, under the second paragraph of Article 60 of the Staff Regulations, if an official wishes to spend sick leave elsewhere than at the place where he is employed, he is to obtain prior permission from his immediate superior. According to the first paragraph of Article 60 of the Staff Regulations, any unauthorised absence which is duly established is to be deducted from the annual leave of the official concerned. If he has used up his annual leave, the official is to forfeit his remuneration for an equivalent period.
38 Furthermore, according to the second paragraph of Article 2(9) of the internal rules on absences on medical grounds, applicable to APAs pursuant to Article 1 of those internal rules, officials who wish to leave their place of employment to spend their sick leave elsewhere are required to request prior permission from the appointing authority (‘the appointing authority’), pursuant to the second paragraph of Article 60 of the Staff Regulations.
39 Likewise, under Article 3 of the internal rules on absences on medical grounds, entitled ‘Unauthorised absence’, applicable to APAs pursuant to Article 1 of those internal rules, the absence is regarded as unauthorised within the meaning of the first paragraph of Article 60 of the Staff Regulations, inter alia where an official infringes the provisions of Article 2 of the internal rules on absences on medical grounds. Unauthorised absence is to be established by a decision of the appointing authority, notified to the official.
40 In the first place, as explained in paragraphs 2 to 11 above, it must be observed that the applicant was granted sick leave covering the period from 30 July 2016 to 4 September 2016 and that he spent that sick leave first in Brussels, his place of employment, from 30 July 2016 to 7 August 2016, then in [confidential], from 7 August 2016 to 28 August 2016, and then in Brussels from 28 August 2016 to 4 September 2016.
41 In the second place, it appears that the applicant did not receive permission from the appointing authority, pursuant to the second paragraph of Article 60 of the Staff Regulations and Article 2(9) of the internal rules on absences on medical grounds, to spend his sick leave elsewhere than at the place of his employment, namely Brussels, prior to his departure to [confidential]. That fact is not contested by the applicant.
42 In the third place, the applicant himself acknowledges in paragraph 39 of the application that, after returning to Brussels on 28 August 2016, he requested permission from the appointing authority to return to [confidential] to spend his sick leave there. It can be inferred from this that there was nothing to prevent the applicant from obtaining that prior permission before his first departure for [confidential].
43 The Parliament therefore rightly held, pursuant to the first paragraph of Article 60 of the Staff Regulations and Article 3 of the internal rules on absences on medical grounds, that the applicant’s absence on medical grounds, in respect of the period from 23 August 2016 until 27 August 2016 must be considered as unauthorised and that it must be deducted from the annual leave of the official concerned and, if he has used up that leave, that the applicant is to lose the benefit of his salary for the corresponding period.
44 Such a conclusion is not contradicted by the fact that the applicant may be regarded as a whistle-blower or witness in the investigations referred to in paragraph 32 above.
45 Admittedly, it is true that, under Article 22a(1) of the Staff Regulations, applicable by analogy to APAs pursuant to Article 127 of the CEOS, any official who, in the course of the performance of his duties, becomes aware of facts which give rise to a presumption of the existence of possible illegal activity, including fraud or corruption, detrimental to the interests of the Union, is to inform his immediate superior or his Director-General or, if he considers it useful, the Secretary-General, or the persons in equivalent positions, or OLAF directly, without delay, and that provision applies also in the event of serious failure to comply with a similar obligation on the part of a Member of an institution. It is also true that, under Article 22a(3), an official is not to suffer any prejudicial effects on the part of the institution as a result of having communicated that information, provided that he acted reasonably and honestly.
46 However, it must be stressed that those statutory provisions to protect officials who are witnesses of illegal activities detrimental to the interests of the Union do not confer any immunity authorising them to infringe their obligations under the regulations, such as the requirement to obtain permission from the appointing authority before spending sick leave elsewhere than at the place of employment.
47 The applicant’s argument alleging infringement of EU law on the protection of whistle-blowers and witnesses must therefore be rejected.
48 Similarly, with regard to the argument alleging infringement of [confidential] legislation, it should be recalled that, according to settled case-law, the Union judicature applies only EU civil service law and not national law when adjudicating on the civil service disputes for which it has jurisdiction, so that references made to national law are irrelevant (see order of 3 July 2017, De Nicola v EIB, T‑666/16 P, not published, EU:T:2017:476, paragraph 14 and the case-law cited).
49 The applicant’s argument alleging infringement of [confidential] law must therefore be rejected.
50 Finally, as regards the applicant’s argument, put forward at the reply stage, that his unauthorised absences were linked to the fact that Parliament did not reply to the request for assistance which he had lodged concerning his psychological harassment by the M.E.P., it must be held that, assuming the applicant did in fact, on 9 May 2016, under Article 90(1) and Article 24 of the Staff Regulations, make a request to the appointing authority for assistance, on the ground that the M.E.P. had subjected him to psychological harassment, within the meaning of Article 12a of the Staff Regulations, applicable by analogy to APAs pursuant to Article 127 of the CEOS, it is not for the Court to adjudicate on an alleged decision since any such implied rejection decision was not part of the subject matter of the present action, defined at the application stage and recalled in paragraph 27 above. In any event, neither the lodging of the request for assistance mentioned above, nor the decision rejecting that request, assuming that such a decision was adopted, exempted the applicant from his obligation to request prior permission from the appointing authority to spend his sick leave in [confidential], in accordance with the second paragraph of Article 60 of the Staff Regulations. That argument must therefore be rejected.
51 It follows from the foregoing considerations that the first plea in law must be rejected.
– The second plea in law, alleging breach of the duty of care and of the principle of good administration
52 The applicant alleges, in his second plea in law, breach of the duty of care and of the principle of good administration.
53 In the first place, the applicant asserts that he spent Sunday 7 August 2016 in [confidential] and that he would have been able to return to Brussels on that date if his state of health had improved and if the M.E.P. and other ‘criminals’ had been arrested or had not been in Brussels that evening.
54 In the second place, the applicant criticises the Parliament for not having warned him that authorisation was necessary in order to spend his sick leave in [confidential]. Thus, according to the applicant, the Parliament did not exercise due care with respect to him, whereas he had been willing to ‘cooperate’ with the Parliament.
55 The Parliament disputes that argument.
56 It is settled case-law that officials and other servants are deemed to know the Staff Regulations and the internal rules applicable to the staff of their institution, agency or body of the EU, with the result that their alleged ignorance of their obligations cannot constitute good faith (see, to that effect and by analogy, judgment of 19 May 1999, Connolly v Commission, T‑34/96 and T‑163/96, EU:T:1999:102, paragraph 168 and the case-law cited).
57 In that regard, it must be held that the obligation to obtain authorisation before spending sick leave elsewhere than in the place of employment is contained in Article 60 of the Staff Regulations and Article 2(9) of the internal rules on absences on medical grounds, as noted in paragraphs 37 to 38 above. The Parliament cannot, therefore, be criticised for failing to comply with its duty of care or with the principle of good administration, this finding being all the more relevant given that the applicant is a lawyer by training and is therefore trained to read and understand the regulatory texts.
58 In any event, it is clear that, on 8 August 2016, the Parliament sent the applicant a copy of the internal rules regarding absences on medical grounds in an email reply when it was sent the medical certificate issued in [confidential], as pointed out in paragraph 4 above. The applicant became aware of that email, moreover, on the same date, insofar as he replied to it by means of another email, as noted in paragraph 5 above.
59 The second argument put forward by the applicant in support of the plea alleging that the Parliament breached its duty of care and the principle of good administration must therefore be rejected as unfounded.
60 As regards the argument that the applicant would have returned to Brussels on 7 August 2016 if his state of health had improved or if the M.E.P. or the ‘criminals’ had been arrested or had not been in Brussels, it suffices to note that those elements, even if assumed to be established, do not fall within the scope of the Parliament’s conduct and it cannot therefore be criticised in that regard.
61 Lastly, with regard to the applicant’s argument that he was entitled to consult a doctor in [confidential], where he was already present, in order to obtain a medical certificate, in accordance with the first paragraph of Article 60 of the Staff Regulations, it should be recalled that, under Article 76(d) of the Rules of Procedure, the application must contain the subject matter of the dispute, the pleas in law and arguments put forward and a summary statement of those pleas. However, it is clear that that argument, alleging infringement of the first paragraph of Article 60 of the Staff Regulations, is not included in the application, but is put forward for the first time at the reply stage. In any event, as described in paragraphs 2, 33 and 37 above, it is not disputed that the applicant obtained a medical certificate, issued in Brussels, his place of employment, stating that the sick leave in question covered the period from 30 July to 7 August 2016 and that he left his place of employment on 7 August 2016, whereas, under the second paragraph of Article 60 of the Staff Regulations, he should have requested prior permission from the appointing authority to leave his place of employment to spend sick leave elsewhere than at his place of employment. In that regard, the argument that, as he was in [confidential] on 7 August 2016, he was authorised to visit a doctor in [confidential] on 8 August 2016 does not preclude that he should have requested the prior permission referred to above. Consequently, the argument must be dismissed, primarily, as inadmissible and, in the alternative, as ineffective.
62 The plea alleging breach of the duty of care and of the principle of good administration and, consequently, the claim for annulment in its entirety, must therefore be rejected.
The claim for damages
63 In the reply, the applicant requests the award of damages assessed ex aequo et bono in the sum of EUR 100 000 to compensate for the non-material damage caused by the Parliament’s wrongful conduct. In particular, the applicant stresses that the infringements of EU law committed by the Parliament gave rise to psychological suffering.
64 In addition, the applicant refers to his dismissal and claims that it damaged his reputation and that all his attempts to find new employment in the EU institutions were unsuccessful. In particular, the applicant argues that the note concerning his dismissal and all the relevant circumstances are included in his personal file, which makes him unemployable.
65 The Parliament disputes that argument.
66 Since all the pleas in law relied on in support of the claim for annulment have been rejected, the claim for damages should therefore be rejected, in so far as the alleged damage results from the contested decision (see judgment of 30 September 2003, Martínez Valls v Parliament, T‑214/02, EU:T:2003:254, paragraph 43 and the case-law cited).
67 It should be pointed out that the present case is not one in which the Court, while noting the existence of maladministration, does not annul the contested decision, but rather, on the basis of its unlimited jurisdiction in disputes of a financial character in civil service matters, nevertheless of its own motion orders the defendant to pay compensation for the damage caused by the defendant’s wrongful act (judgment of 5 June 1980 in Oberthür v Commission, 24/79, EU:C:1980:145, paragraphs 11 to 14; see, also, judgment of 20 May 2010, Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraphs 44 and 51 and the case-law cited).
68 As regards any harm that does not arise from the contested decision, but from faults and omissions allegedly committed by the administration, the applicant does not indicate that he has made a request in that regard under Article 90(1) of the Staff Regulations. His claim must therefore be rejected as inadmissible (judgment of 31 May 2005, Dionyssopoulou v Council, T‑284/02, EU:T:2005:188, paragraph 72).
69 Finally, as regards any harm that does not arise from the contested decision, but from other decisions in respect of which the applicant has not sought annulment in his application, including the decision to dismiss him, to which he refers in his reply, it should be noted that, under Article 76 of the Rules of Procedure, the applicant is required to state in the application the subject matter of the proceedings and the form of order sought. While Article 84(2) of those rules authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, that provision cannot in any circumstances be interpreted as authorising the applicant to bring new claims before the General Court and thereby to modify the subject matter of the proceedings (see judgment of 13 July 2018, PS v EIB, T‑612/16, not published, EU:T:2018:483, paragraph 38 and the case-law cited). Given that the claim for damages was introduced at the reply stage and not at the stage of the application and that it goes beyond the subject matter of the dispute, as defined therein, it must, in the absence of matters of law and fact which came to light in the course of the written procedure that justify an amendment of that subject matter, be rejected as inadmissible.
70 The action must therefore be dismissed in its entirety.
Costs
71 Under Article 134(1) of the Rules of Procedure, 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, he must be ordered to pay the costs, as applied for by the Parliament.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders L to pay the costs.
Gervasoni | Kowalik-Bańczyk | Mac Eochaidh |
Delivered in open court in Luxembourg on 14 February 2019.