JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
11 April 2016 (*)
(Civil service — CEPOL staff — Temporary staff — Contract staff — Place of employment corresponding to the seat of CEPOL — Relocation of CEPOL to Budapest (Hungary) — Corresponding change in the place of employment of members of staff — Contractual consequences — Need for consent from members of staff — Correction coefficient applicable to the new place of employment — Legitimate expectations — Principle of sound administration)
In Case F‑41/15 DISS II,
ACTION brought under Article 270 TFEU,
FN, a member of the temporary staff of the European Police College, residing in Budapest (Hungary),
FP, a member of the temporary staff of the European Police College, residing in Bratislava (Slovakia),
FQ, a member of the temporary staff of the European Police College, residing in Les Fonts Benitachell (Spain),
represented by L. Levi and A. Blot, lawyers,
applicants,
v
European Police College (CEPOL), represented by F. Bánfi and R. Woldhuis, acting as Agents, and by B. Wägenbaur, lawyer,
defendant,
THE CIVIL SERVICE TRIBUNAL (Third Chamber),
composed of S. Van Raepenbusch, President, H. Kreppel and J. Svenningsen (Rapporteur), Judges,
Registrar: W. Hakenberg,
having regard to the written procedure,
having regard to the decision, with the agreement of the parties, to proceed to judgment without a hearing, pursuant to Article 59(2) of the Rules of Procedure,
gives the following
Judgment
1 By application received at the Registry of the Civil Service Tribunal on 9 March 2015, FN, FP, FQ and four other applicants, namely FK, FL, FM and FO, brought an action registered as Case F‑41/15 and seeking, inter alia:
– annulment of Decision No 17/2014/DIR of the Director of the European Police College (CEPOL) (‘the Agency’) of 23 May 2014 concerning the relocation of CEPOL to Budapest (Hungary) (‘the contested decision’);
– annulment of the various decisions of CEPOL of 28 November 2014 rejecting their complaints, lodged individually between 8 and 21 August 2014, against the contested decision;
– compensation from CEPOL for the material and non-material damage suffered.
Legal context
1. Employment of temporary and contract staff
2 Pursuant to Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), for the purposes of those conditions of employment, ‘temporary staff’ means ‘staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary’.
3 Under the chapter relating to ‘termination of employment’, Article 47 of the CEOS states:
‘Apart from cessation on death, the employment of temporary staff shall cease:
(a) at the end of the month in which the servant reaches the age of 66 years ...; or
(b) where the contract is for a fixed period:
(i) on the date stated in the contract;
(ii) at the end of the period of notice specified in the contract giving the servant or the institution the option to terminate earlier. The period of notice shall not be less than one month per year of service, subject to a minimum of one month and a maximum of three months. For temporary staff whose contracts have been renewed the maximum shall be six months. ... If the institution terminates the contract, the servant shall be entitled to compensation equal to one third of his basic salary for the period between the date when his duties end and the date when his contract expires;
(iii) ...
(c) where the contract is for an indefinite period:
(i) at the end of the period of notice stipulated in the contract; the length of the period of notice shall not be less than one month for each completed year of service, subject to a minimum of three months and a maximum of 10 months. ...;
...’
4 By virtue of Article 119 of the CEOS, Article 47 thereof is to apply by analogy to contract staff.
2. Correction coefficients
5 Under the first paragraph of Article 64 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to temporary staff and to contract staff by virtue of Article 20(1) and Article 92 of the CEOS, ‘an official’s remuneration expressed in euros shall, after the compulsory deductions set out in [the] Staff Regulations or in any implementing regulations have been made, be weighted at a rate above, below or equal to 100%, depending on living conditions in the various places of employment’.
6 According to the annual update of the correction coefficients applicable from 1 July 2014 to the remuneration and pensions of officials and other servants of the European Union (OJ 2014 C 444, p. 10), on 1 October 2014 the correction coefficient applicable to remuneration was 71.4% for Hungary and 150.7% for the United Kingdom.
Background to the dispute
1. Contractual situations of the applicants in the present case
7 FN was employed by CEPOL as a member of the temporary staff in order to fill a post in the assistants (AST) function group at grade AST 3 from 1 April 2009 for a period of four years, with the possibility of a single contract renewal that could lead to a maximum term of employment of six years. The employment contract stated that FN was employed under Article 2 of the CEOS. However, by an amendment of 1 March 2013, FN and CEPOL decided, notwithstanding the terms of the initial contract, that the term of the employment contract would be extended by a period of five years, running from 1 April 2013 to 31 March 2018, thereby bringing the total period of employment to nine years.
8 FP was employed by CEPOL, by means of a contract concluded pursuant to Article 2(a) of the CEOS, as a member of the temporary staff in order to fill a post in the administrators (AD) function group at grade AD 5 for a period of five years running from 1 December 2012 to 30 November 2017, with the possibility of renewal of the employment contract ‘in accordance with the relevant Implementing Rules applicable at CEPOL’.
9 FQ was employed by CEPOL, by means of a contract concluded pursuant to Article 2(a) of the CEOS, as a member of the temporary staff in order to fill a post at grade AST 3 for a period of four years running from 1 September 2010 to 31 August 2014, with the possibility of a single renewal that could lead to a maximum term of employment of six years, that is, until 31 August 2016. However, by amendment of 27 February 2014, FQ and CEPOL contractually decided to renew the contract for a period of five years, running from 1 September 2014 to 31 August 2019, thereby bringing the total period of employment to nine years.
2. Change of seat of CEPOL
10 By Council Decision 2000/820/JHA of 22 December 2000 establishing [CEPOL] (OJ 2000 L 336, p. 1), the Council of the European Union decided to create that agency.
11 Under Article 1(a) of the Decision taken by common agreement between the Representatives of the Member States, meeting at Head of State or Government level, of 13 December 2003 on the location of the seats of certain offices and agencies of the European Union (OJ 2004 L 29, p. 15), the seat of CEPOL was established at Bramshill (United Kingdom).
12 Article 4 of Council Decision 2005/681/JHA of 20 September 2005 establishing [CEPOL] and repealing Decision 2000/820/JHA (OJ 2005 L 256, p. 63) also stated that ‘the seat of CEPOL [was to] be in Bramshill, United Kingdom’.
Political decision adopted at Head of State or Government level of the Member States and within the Council
13 By letter of 12 December 2012 addressed to the Director of CEPOL, while sending, in essence, the same letter to the European Commissioner for Home Affairs, the Home Secretary of the United Kingdom (‘the Home Secretary’) informed the Director of CEPOL of the Home Office’s decision to close the British police training site located at Bramshill, a site which also hosted CEPOL’s premises. That letter stated that the site in question would be sold before 2014 and that, until that date, CEPOL would be granted a twelve-month lease running from 1 March 2013. The Home Secretary indicated that she was aware of the European Commission’s intention to propose, at the beginning of 2013, that a new regulation be adopted to govern the functioning of CEPOL or, potentially, to provide for the merging of CEPOL with the European Police Office (Europol). She stated that this would be an opportunity for the Member States to come to an agreement regarding a new seat for CEPOL, should it remain a fully-fledged agency of the European Union.
14 By email of 12 December 2012, FQ, on behalf of the Director of the Agency, communicated the letter from the Home Secretary mentioned above to all CEPOL staff. In that email, FQ stated, inter alia, that that communication was part of the follow-up to the staff meeting which had taken place on the same day on the subject of CEPOL’s relocation.
15 By letter of 8 February 2013 addressed to the Director of CEPOL, the Home Secretary insisted on reassuring the latter that the Agency would be able to continue to occupy the site at Bramshill at least until March 2014. By email of 12 February 2013, sent to all CEPOL staff on behalf of the Director of the Agency, FQ communicated the letter mentioned above.
16 On 10 June 2013, a second CEPOL staff meeting was held on the subject of the Agency’s change of seat. FN and FQ took part in that meeting, with FQ also being responsible for drafting the minutes thereof (FP was absent). At that meeting, the staff were informed that a large majority of the Member States were opposed to the idea of merging CEPOL and Europol and that several Member States had expressed an interest in hosting CEPOL on their territory.
17 On 23 September 2013, a third CEPOL staff meeting was held, a meeting in which FN and FQ took part, with the latter once again being responsible for drafting the minutes thereof. There is no record in those minutes of FP being present at that meeting, as her name does not appear in the list of attendees. On that occasion, the staff were informed of the fact that seven Member States, namely Ireland, Greece, Spain, Italy, Hungary, the Netherlands and Finland, had applied to host CEPOL on their territory.
18 On 8 October 2013, in the margins of a meeting of the ‘Justice and Home Affairs’ Council configuration, the Member States decided by common agreement that, once it had left the Bramshill site, CEPOL would be hosted in Budapest and that it would continue to be a fully-fledged agency of the European Union.
19 On 4 December 2013, an initiative, adopted on the basis of Article 76(b) and Article 87(2)(b) TFEU by 25 Member States during a meeting of the ‘Justice and Home Affairs’ Council configuration of 13 November 2013, was submitted with a view to amending Decision 2005/681/JHA. On 16 January 2014, the Commission issued its opinion on that initiative (COM(2014) 7 final), while the European Parliament adopted its position at first reading on 14 April 2014.
20 On 6 May 2014, a compromise was reached between the Council and the Parliament and was approved by the Committee of Permanent Representatives of the Member States enabling the adoption by the Council and the Parliament on 15 May 2014 of Regulation (EU) No 543/2014 of the European Parliament and of the Council amending [Decision 2005/681/JHA] (OJ 2014 L 163, p. 5).
21 Recitals 2, 3 and 9 of Regulation No 543/2014 are worded as follows:
‘(2) Notwithstanding Article 4 of Decision 2005/681/JHA, by letters dated 12 December 2012 and 8 February 2013, the United Kingdom informed CEPOL that it had unilaterally decided that it no longer wished to host the seat on its territory. In addition to hosting CEPOL, Bramshill also hosts a national police training site of the National Policing Improvement Agency, which the United Kingdom had decided to replace by a new College of Policing to be located elsewhere. The United Kingdom had therefore decided to close the national police training site at Bramshill and to sell the site, indicating that the related costs were high and that no alternative business model to run the site had emerged. In the light of the obligation of the [TEU] of sincere cooperation, and in particular the obligations deriving from Article 4 TEU, the Union and its Member States should mutually assist each other in maintaining CEPOL’s operational activities. To that end, the United Kingdom in particular is required to ensure a smooth transition of CEPOL to its new location, without jeopardising the regular budget of CEPOL.
(3) In view of the common accord reached on 8 October 2013 by the representatives of the Governments of the Member States, and of the need to maintain CEPOL’s status as a separate Union agency, arrangements should be made according to which CEPOL will be hosted in Budapest as soon as it leaves Bramshill. ...
(9) In the light of the urgent need to establish the new seat of CEPOL, this Regulation should enter into force on the date of its publication.’
22 Pursuant to Article 1 of Regulation No 543/2014, Article 4 of Decision 2005/681/JHA was replaced and now states that ‘the seat of CEPOL shall be in Budapest, Hungary’.
Implementation by CEPOL of Regulation No 543/2014
23 By letter of 25 April 2014, the Director of CEPOL asked the Commission’s Directorate-General for ‘Home Affairs’ for its opinion on certain issues relating to the transfer of staff inherent in the transfer of CEPOL’s seat to Budapest. Following a meeting held on 12 May 2014 in the presence of, inter alia, the Director of the Directorate for ‘Crisis Management and Internal Security’ in the Directorate-General for ‘Home Affairs’ (‘the supervising director’) and the Director of CEPOL, the supervising director, by letter of 16 May 2014, reminded the Director of CEPOL that Article 7 of the CEOS allowed the Agency to decide, providing sufficient reasons, to assign a member of staff to any other place of employment in the interests of the service, regardless of whether mention was made in that member of staff’s employment contract of a specific place of employment. In the circumstances, the supervising director considered that the transfer of CEPOL’s seat was clearly valid grounds for a unilateral decision by the authority empowered to conclude contracts of employment (‘the AECE’) to reassign a member of staff without it being necessary to amend the employment contract or to provide financial compensation for the early termination of that contract. According to the opinion of the Commission’s legal service, expressed at the meeting of 12 May 2014, a member of staff refusing to be reassigned to Budapest could choose to resign.
24 The supervising director stated, in his letter of 16 May 2014, that there was no provision of the CEOS governing the issue of the notice period within which CEPOL should warn its staff of the relocation of the Agency, but that it was necessary to adhere to the principle of sound administration. In that regard, in view of the information provided to, and the individual interviews conducted with, the members of staff of the Agency by the Director of CEPOL, as well as the information, disseminated in good time, concerning the developments in the discussions at Member State level with regard to determining CEPOL’s new seat, the supervising director considered that CEPOL’s staff had been aware for some time that the transfer of CEPOL’s seat to Budapest was imminent. Concerning the period of reflection that should be given to members of staff for the purpose of indicating their individual choice as regards continuing their contractual commitment at the new seat in Budapest, the supervising director stated that there was no specific provision in the CEOS regarding that issue either, but that it was necessary in any event to give staff as much time as possible, while bearing in mind the organisational needs of CEPOL, including the need to know by a given date which members of staff would be joining the new seat and which would not.
25 Again in his letter of 16 May 2014, the supervising director reminded the Director of CEPOL that the Staff Regulations, in particular the provisions of Annex VII thereto, which apply by analogy to members of the temporary staff by virtue of Article 20(2) of the CEOS, provided for a certain number of allowances in connection with the relocation of CEPOL staff to Budapest, including the installation allowance, daily allowances, the reimbursement of relocation costs, the reimbursement of travel costs and the right to continue to enjoy the installation allowance paid in connection with the taking up of duties at Bramshill.
26 As regards the Director of CEPOL’s proposal that all staff of the Agency be reclassified upon their transfer to Budapest in order to limit the reduction in net remuneration of staff as a result of the correction coefficient for Hungary being applied to their basic salary, the supervising director indicated that, under Article 54 of the CEOS, reclassification could take place only ‘in the next higher grade’ and ‘exclusively by selection from among staff members [who have completed a minimum of two years in their grade] after consideration of the comparative merits [of those staff members]’.
27 In that regard, the supervising director contested the Director of CEPOL’s premiss that CEPOL’s members of staff would be employed at a lower level than the staff of other agencies of the European Union, with differences of two or three grades, arguing that it was not substantiated. In addition, the supervising director argued that an amendment to the establishment plan, based on the difference between the correction coefficients of Hungary and the United Kingdom, was not acceptable because it would be contrary to the rules laid down in the Staff Regulations. Reminding the Director of CEPOL that ‘the adaptation of the salary is a universal mechanism and tracks closely the relative differences in the cost of living between Member States’, the supervising director indicated that ‘it [was] therefore incorrect to state that there [was] a “loss of income”, as the decrease in nominal salary [as a result of assignment to Hungary] matche[d] the increase in purchasing power’.
28 On 23 May 2014, the Director of CEPOL, in his capacity as AECE, adopted the contested decision, Article 1 of which states, concerning the date of relocation, that ‘all staff ... are expected to take up duties at the new CEPOL headquarters, located in ... Budapest on 1 October 2014, or at a date agreed between the Director and the staff member [concerned and that n]on-compliance with this instruction will be considered as resignation with [effect from] 30 September 2014’.
29 Article 2 of the contested decision states that ‘[each member of] staff [is] invited to indicate in writing to the Director [his] intention to join CEPOL at its new [seat] by 30 June 2014[; i]n the event [that] a [given] staff member informs the Director, by the deadline, that [he or she] does not wish to relocate to Budapest, the Director [may] use this information to start a procedure to establish a reserve list for the position of this staff member’. That article explains that the notice periods for resigning laid down in staff members’ respective employment contracts could be negotiated with the Director of CEPOL.
30 Concerning informing members of staff, it is apparent from Article 3 of the contested decision that the Director of CEPOL was required to provide in writing the information which was relevant to each member of staff by 10 June 2014 and that, in order to facilitate the implementation of the contested decision, each member of staff could request a personal consultation with his immediate hierarchical superior.
31 Article 4(2) of the contested decision explains that staff not relocating with the Agency to Budapest will be entitled to special leave under the conditions laid down by the applicable staff regulations.
32 By letters of 30 June 2014, FN, FP and FQ informed the Director of CEPOL that they wished to continue their respective contractual employment relationships at CEPOL’s new seat in Budapest, while emphasising that that reply regarding their intentions, submitted within the period prescribed by the contested decision, did not affect the legality of that decision amending, in their view, unilaterally their place of employment as defined in their contracts or the possibility of their contesting the legality of that decision.
Pre-litigation procedure
33 By letter of 13 August 2014, FP lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against the contested decision, claiming that, by that decision, the Director of CEPOL had unilaterally and, thus, illegally amended the contractual conditions of her employment. Because her employment contract stated that Bramshill was her place of employment, she had had legitimate expectations regarding her salary that were based on the application of the correction coefficient provided for the United Kingdom. Accordingly, the contested decision was a breach of her employment contract and infringed the principle of legitimate expectations.
34 By letter of 18 August 2014, FQ lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against the contested decision, claiming that the Director of CEPOL was not entitled to amend unilaterally, by means of the contested decision and without providing financial compensation, the terms of her contract which stated, inter alia, that Bramshill was her place of employment. FQ questioned the relevance, in the context of the present case, of the case-law resulting from the judgment of 11 July 1996 in Aubineau v Commission (T‑102/95, EU:T:1996:104) (‘the judgment in Aubineau’), and claimed that the unilateral amendment of her place of employment was an abnormal and unforeseeable event. Accordingly, FQ argued that she could not be compelled to move to Budapest without being granted suitable financial compensation and criticised the fact that the correction coefficient provided for Hungary would now be applied to her salary instead of the — much higher — coefficient applicable for the United Kingdom which she had expected to receive throughout her term of employment. FQ therefore asked the Director of CEPOL to adopt compensatory measures in respect of her forced reassignment, in this instance by granting her suitable financial compensation.
35 By letter of 19 August 2014, FN lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against the contested decision, claiming that his place of employment could not be unilaterally amended by CEPOL without financial compensation, given that that place of employment was listed in his employment contract as Bramshill and that it had to be regarded as an essential condition of that employment contract. FN considered, in particular, that the situation of an agency, such as CEPOL, having only one place of employment could not be compared with that of an institution, such as the Commission or the Parliament, having several places of employment to which officials and members of staff may be assigned. Accordingly, the case-law resulting from the judgment in Aubineau (EU:T:1996:104), cited by the supervising director in his letter of 16 May 2014, would not be applicable in the present case, with the result that the unilateral amendment of FN’s place of employment had to be regarded as an abnormal and unforeseeable event. FN also claimed that there had been an infringement of the principle of legitimate expectations in the light of the clear and specific assurances he had been given regarding the fact that he would work at Bramshill for the entirety of the duration of his contract. In addition, he criticised the brevity of the one-month period which he had been given to inform CEPOL whether he was joining the new seat in Budapest and the fact that the contested decision offered him resignation without financial compensation as the sole alternative to relocating to Budapest.
36 By letters of 28 November 2014, the Director of CEPOL, in his capacity as AECE, rejected the complaints of FN, FP and FQ along with the complaints of the other applicants referred to in paragraph 1 above, stating, first, that the decision to transfer CEPOL’s seat had been adopted by the EU legislature, which has a broad discretion in such matters; second, that no specific assurance had been given as regards benefiting from the correction coefficient applicable to the United Kingdom throughout the term of employment, since the reference, in the vacancy notices relating to the posts occupied by the applicants referred to in paragraph 1 above, to Bramshill as the place of employment and to the application of the correction coefficient applicable to the United Kingdom merely reflected the situation at that time, namely that the seat of the Agency was located in that town and that being assigned to the United Kingdom entailed entitlement to the application of that correction coefficient; third, that, in accordance with case-law, the AECE could decide, in the interests of the service, to reassign its members of staff to other places of employment, since such reassignment was, for those members of staff, inherent in the fact of working for an international organisation such as the European Union; and, fourth, that it was not in the interests of the service of CEPOL to keep staff at Bramshill, in view of the Council’s decision to transfer the Agency’s seat to Budapest.
37 Furthermore, in the decisions rejecting the complaints of FN and FQ, the Director of CEPOL stated that the staff of the Agency had long been informed of CEPOL’s change of seat, even if the precise timeline had not been announced until May 2014, and that the reason for the short response period which it had laid down in the contested decision was the need to organise the relocation quickly in the light of the Home Secretary’s request that the Bramshill site be vacated by 30 September 2014.
38 The decision rejecting FQ’s complaint also mentioned the fact that it was in full awareness of the Council’s decision to change CEPOL’s seat and of the existence of a political compromise regarding the choice of Budapest that FQ had, on 27 February 2014, signed an amendment stating that her employment contract was renewed for five years. Concerning FQ’s request, set out in her complaint, for suitable financial compensation, the Director of CEPOL reminded FQ that she was eligible, under the conditions laid down in the Staff Regulations, to have her relocation costs reimbursed and to receive daily allowances and the installation allowance.
Procedure and forms of order sought
39 By letter from the Registry of 14 July 2015, the Tribunal asked the seven applicants referred to in paragraph 1 above to take a position, pursuant to Article 44(1) and (2) of the Rules of Procedure, on the subject of a possible separation of their cases. Those parties having filed their observations in that regard on 2 September 2015, the President of the Third Chamber of the Tribunal, to whom the action was assigned, decided, by order of 16 September 2015 in FK and Others v CEPOL (F‑41/15, EU:F:2015:104, not published), in the interests of the proper administration of justice, to separate the case of FK from the cases of, first, FL, FM and FO and, second, FN, FP and FQ.
40 The respective situations of FK on the one hand and FL, FM, and FO on the other hand were resolved by amicable settlements initiated by the Tribunal (see orders of 8 October 2015 in FK v CEPOL, F‑41/15, EU:F:2015:119, and 12 November 2015 FL and Others v CEPOL, F‑41/15 DISS I, EU:F:2015:132). Furthermore, the action brought by FM and FO, registered as Case F‑105/15 and seeking annulment of the decision of 22 December 2014 by which the AECE of CEPOL had applied to them its announcement, made in the contested decision, that it would consider a refusal to take up duties in Budapest as tantamount to resignation, also gave rise to an amicable settlement initiated by the Tribunal (see order of 12 November 2015 in FM and FO v CEPOL, F‑105/15, EU:F:2015:133).
41 In connection with the present case, registered as Case F‑41/15 DISS II, the parties were informed, by letter from the Registry of 27 October 2015, that the Tribunal had decided, pursuant to Article 55 of the Rules of Procedure, that a second exchange of written pleadings was necessary. In that regard, the applicants in the present case (‘the applicants’) were requested, in their reply, to amend the forms of order sought having regard to the separation decided on 16 September 2015 and to take a position on both their interest in bringing proceedings against the contested decision and the admissibility of their claims for damages in the light of the arguments relating to the requirements of the pre-litigation procedure as put forward by CEPOL in its statement of defence.
42 In their reply, the applicants claim that the Tribunal should:
– declare the action admissible;
– annul the contested decision;
– annul, so far as necessary, the decisions rejecting the complaints which concern them;
– order that compensation be paid for the material and non-material damage which they have suffered;
– order CEPOL to pay the costs.
43 In its rejoinder, CEPOL contends that the Tribunal should:
– dismiss the action;
– order the applicants to pay the costs.
44 Following the second exchange of written pleadings, the parties were asked to inform the Tribunal whether they agreed that Article 59(2) of the Rules of Procedure might be applied in the present case. The applicants and CEPOL having informed the Tribunal, on 25 and 22 February 2016 respectively, that they had no objections in that regard, the Tribunal decided, pursuant to that provision, to proceed to judgment without a hearing.
Law
1. Claims for annulment
Whether the contested decision is an act adversely affecting the applicants
Arguments of the parties
45 CEPOL contends that the claims for annulment of the contested decision are inadmissible, arguing that the applicants do not have standing to bring proceedings against that decision. According to CEPOL, the contested decision is merely the expression by the Director of CEPOL, using circumscribed powers, of the decision of the EU legislature to transfer CEPOL’s seat to Budapest. The applicants, however, have neither brought an action against Regulation No 543/2014 nor argued, in the context of the present action, that that regulation is unlawful. In addition, the contested decision can be regarded as an act confirming the decision of the legislature as expressed in that regulation, with the result that, applying by analogy the case-law relating to the inadmissibility of claims for annulment brought against a confirmatory act emanating from the same administrative entity, the claims for annulment of the AECE of CEPOL’s decision would also, when viewed from that angle, be inadmissible.
46 According to the applicants, they have an interest in bringing proceedings against the contested decision, because the annulment of that decision would mean that they would no longer be expected to have taken up their duties in Budapest on 1 October 2014 and their non-compliance with the obligation to take up their duties in Hungary could no longer be regarded as a resignation. Consequently, the applicants’ situation would remain governed solely by the terms of their respective employment contracts, with the result that they would continue to enjoy rights corresponding to their duties being performed at Bramshill, including as regards the applicable correction coefficient.
Findings of the Tribunal
47 As a preliminary point, it should be borne in mind that, even if it is common ground that the applicants individually consented to taking up their duties in Budapest, that consent is not such as to cause the contested decision to cease to be an act adversely affecting them (judgment of 11 July 1996 in Ortega Urretavizcaya v Commission, T‑587/93, EU:T:1996:100, paragraph 28).
48 Next, the Tribunal considers that, in the present case, the AECE of CEPOL, by the contested decision, communicated to the entirety of the Agency’s staff the fact that, pursuant to Decision 2005/681/JHA, as amended by Regulation No 543/2014, it had decided on the place and date for the reassignment of the Agency’s staff. It is apparent from the contested decision that that decision establishes that the duties of the Agency’s staff would be taken up in Budapest on 1 October 2014.
49 Such a communication, although purportedly implementing an act of general application of the Council and of the Parliament, must be regarded as a decision adversely affecting the applicants in that it amends their place of employment under conditions which are, allegedly, unlawful. Therefore it must be acknowledged that the contested decision is a challengeable act (see, to that effect, judgment of 24 February 1981 in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraph 14), with the result that the objection of inadmissibility raised by CEPOL in that regard must be dismissed.
Subject matter of the action
50 It should be borne in mind that, in accordance with the principle of procedural economy, the Courts of the European Union may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where they find that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made. That may, in particular, be the case where they find that the decision rejecting the complaint is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second (judgments of 19 November 2014 in EH v Commission, F‑42/14, EU:F:2014:250, paragraph 85, and 16 July 2015 Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraph 49).
51 In the present case, the decisions rejecting the complaints, when compared to the content of the contested decision, contain new positions adopted by the AECE of CEPOL in response to the questions and arguments raised by the applicants in their respective complaints lodged against the contested decision. Consequently, it is necessary for the Tribunal to give a ruling on the legality both of the contested decision and of the decisions rejecting the complaints (see judgment of 26 March 2015 in CW v Parliament, F‑124/13, EU:F:2015:23, paragraph 33, on appeal before the General Court of the European Union, Case T‑309/15 P).
Pleas for annulment
52 In support of their claims for annulment of the contested decision and the decisions rejecting their complaints, the applicants raise three pleas in law alleging, first, infringement of Article 47 of the CEOS; second, infringement of the contractual provisions binding them to CEPOL and of their acquired rights; and, third, infringement of the principle of sound administration and of the duty to have regard for the welfare of staff.
First plea in law: infringement of Article 47 of the CEOS
– Arguments of the parties
53 In the initial application submitted by the seven applicants referred to in paragraph 1 above, the first plea in law was essentially developed in connection with the situation of three of those initial applicants who had refused to take up their duties in Budapest as from 1 October 2014. In that regard, what was disputed was the fact that the refusal of those three initial applicants to take up their duties at CEPOL’s new seat could, as the contested decision stated, be deemed a resignation on their part.
54 In their reply, the applicants essentially argued that the issue — still relevant in their case — raised by the first plea in law relates to whether, by the contested decision, the Director of CEPOL was entitled to consider, on principle, that the refusal to take up duties in Budapest on 1 October 2014 had to be regarded as a resignation by the members of staff who had expressed such a refusal. The applicants criticise such an approach in that it left them no room for manoeuvre in terms of their freedom to agree or refuse to take up their duties in the new place of employment and in that, consequently, the AECE of CEPOL thereby added a new case of resignation which is neither laid down in nor envisaged by Article 47 of the CEOS.
55 CEPOL contends that the plea should be rejected, arguing that, since each of the three applicants did in fact relocate to Budapest and take up their duties at the Agency’s new seat, the questions whether non-compliance with the Director of CEPOL’s instruction as set out in the contested decision to take up duties in Budapest may be classified as a resignation and whether a resignation under such conditions is contrary to Article 47 of the CEOS are hypothetical. In any event, CEPOL observes, in essence, that, pursuant to Article 47 of the CEOS, neither a dismissal by decision of the AECE nor a resignation by a member of staff requires the consent of the other party to the employment contract.
– Findings of the Tribunal
56 The Tribunal observes at the outset that, although they criticise the deadline which they were given in the contested decision for informing the Director of CEPOL of their intention to join — or not to join — CEPOL’s new seat and contest the consequences under the Staff Regulations, in particular the financial consequences, connected with their acceptance of their new assignment outside the United Kingdom, the applicants each, on 30 June 2014, agreed to continue their respective contractual relationships with CEPOL and to take up their duties at CEPOL’s new seat in Budapest on 1 October 2014.
57 In those circumstances, the warning in the contested decision that the refusal by a member of staff of CEPOL to take up his duties at the new seat in Budapest on 1 October 2014 would be regarded as a resignation on his part from that date has not been applied by the AECE of CEPOL in the applicants’ case. Accordingly, the applicants’ argument seeking to challenge the fact that, in the context of CEPOL’s relocation, the refusal of one of its members of staff to take up his duties in Budapest on 1 October 2014 could be considered, in the circumstances, to be tantamount to resignation is ineffective.
58 In any event, the General Court of the European Union has already held that the fact that a member of staff does not report to his place of work, defined in this instance by the AECE of CEPOL as being Budapest as from 1 October 2014, may be regarded as the expression by that member of staff of conduct of a person who has resigned which is, therefore, tantamount to resignation for the purposes of Article 47 of the CEOS (judgment of 9 April 2003 in Walton v Commission, T‑155/01, EU:T:2003:105, paragraphs 31 to 34).
59 In that regard, the Tribunal notes that, in the present case, the AECE of CEPOL had no room for manoeuvre in implementing Article 4 of Decision 2005/681/JHA, as amended by Regulation No 543/2014, since, in providing that, henceforth, ‘the seat of CEPOL shall be in Budapest, Hungary’, the EU legislature, namely the Council and the Parliament, acting in accordance with the ordinary legislative procedure, had implicitly but necessarily decided that the staff of the Agency had to be reassigned to the new seat.
60 The functioning of the administration of the European Union entails an obligation for any EU civil service official or member of staff to accept any assignment, provided that it is consistent with the category and grade of his post and in accordance with the requirements of the service, throughout the European Union in any place of employment within the institution or agency in which he took up his duties (judgment of 24 February 1981 in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraphs 23 and 37). Furthermore, pursuant to Article 20 of the Staff Regulations, applicable by analogy to temporary and contract staff by virtue of Articles 11 and 81 of the CEOS, EU officials and members of staff are to reside either in the place where they are employed or at no greater distance therefrom as is compatible with the proper performance of their duties.
61 In those circumstances, the AECE of CEPOL cannot be criticised for having, in implementation of the decision of the EU legislature to transfer CEPOL’s seat to Budapest, asked its staff to take up their duties in that new location (see, to that effect, judgment of 6 July 1983 in Geist v Commission, 285/81, EU:C:1983:192, paragraph 15).
62 Consequently, also taking into account the Agency’s broad discretion in the organisation and structuring of its services (see judgment of 10 September 2014 in Tzikas v ERA, F‑120/13, EU:F:2014:197, paragraph 82 and the case-law cited), the Tribunal considers that, in any event, in the particular circumstances of the present case, the AECE of CEPOL was entitled, in the face of possible refusal by one of CEPOL’s members of staff to take up duties at CEPOL’s new seat which the EU legislature had established would be in Budapest, to decide, exercising that broad discretion, that such a refusal was tantamount to resignation.
63 In the light of the foregoing considerations, the first plea in law must be rejected.
Second plea in law: infringement of the contractual provisions binding the applicants to CEPOL and infringement of their acquired rights
– Arguments of the parties
64 In support of their second plea in law, the applicants claim that, in demanding that they relocate from Bramshill to Budapest, the AECE of CEPOL, by the contested decision, unilaterally and thus unlawfully amended one of the essential conditions of their respective employment contracts: each of those contracts specified that the place of employment was Bramshill. According to the applicants, this constituted an essential condition of their respective contracts because, in FN’s case, before taking up his duties at CEPOL, he was already resident in Hampshire (United Kingdom), where CEPOL’s premises were located, while, for FP and FQ, their decisions to apply for a position with CEPOL had been made in view of the place of employment and salary offered. In addition, the applicants maintain that the contested decision was adopted without their having given their consent to the change of place of employment even though the concluding of amendments, signed by the applicants, would have been necessary for any such change.
65 Since their employment relationship is a contractual one, the applicants submit that the AECE of CEPOL could not rely on Article 7 of the Staff Regulations in support of the contested decision, especially since that article applies, pursuant to Article 10 of the CEOS, only to members of the temporary staff and not to contract staff. In addition, according to the applicants, ‘the fact that [the] Council decided to relocate CEPOL is a decision which does not even result from the contracts of employment, even by including the [CEOS]’.
66 CEPOL contends that the second plea in law should be rejected. It argues, inter alia, that the contested decision merely constitutes, on the part of the AECE, first, a measure, adopted using circumscribed powers, implementing the decision of the EU legislature to transfer CEPOL’s seat from Bramshill to Budapest, and, second, an operational response to the order from the United Kingdom authorities to leave the Bramshill site by 30 September 2014.
67 While acknowledging that the applicants’ employment contracts indicate that their place of employment is Bramshill, CEPOL considers that those clauses do not constitute essential elements of those contracts the amendment of which requires the approval of the staff members concerned. First, CEPOL did not and, moreover, could not guarantee, by way of those clauses, that the applicants’ place of employment, which was dependant on the location of the Agency’s seat as determined by the EU legislature alone, would remain unchanged in all circumstances. Second, according to CEPOL, in the event of transfer of an agency’s seat, the very basis of the interest of the service is transferred to the agency’s new seat with the result that, pursuant to Article 7 of the Staff Regulations, the AECE is entitled to reassign members of the temporary staff accordingly, or even is obliged to do so, as it cannot frustrate the decision of the EU legislature ordering such a transfer. The same is true with regard to contract staff, notwithstanding the fact that no provision is made in the CEOS for Article 7 of the Staff Regulations to be applied by analogy to such staff.
– Findings of the Tribunal
68 According to settled case-law, the basis of the employment relationship between a member of the temporary or contract staff and the institution or agency concerned is the employment contract (see judgments of 18 October 1977 in Schertzer v Parliament, 25/68, EU:C:1977:158, paragraph 40; 19 June 1992 V. v Parliament, C‑18/91 P, EU:C:1992:269, paragraph 39; and 16 July 2015 Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraph 101).
69 Therefore, the consensus between the contracting parties, as expressed, inter alia, by the signing of the employment contract, gives rise to obligations of a contractual nature which restrict the AECE’s power to act unilaterally outside the cases expressly provided for by the CEOS (judgment of 16 July 2015 in Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraph 103). However, the extent of that contractual freedom and the conditions for the exercise thereof are regulated and limited by the rights and obligations laid down in the CEOS or, as the case may be, resulting from the application by analogy of provisions of the Staff Regulations, with the result that the contracting partners cannot, via contractual means, evade obligations stemming from the specific mission of general interest entrusted to the institutions, bodies, offices and agencies of the Union (see, to that effect, judgment of 12 February 2014 in Bodson and Others v EIB, F‑73/12, EU:F:2014:16, paragraph 52 and the case-law cited).
70 Regarding the question whether the place of employment may be unilaterally amended by the AECE when it is mentioned in the employment contract of a member of the temporary or contract staff, it should be noted that, at any time, the EU legislature or, as the case may be, the Heads of State or governments of the Member States may change the seats of the various institutions and agencies of the Union. It should also be borne in mind that, according to settled case-law, the obligation for the institutions and agencies of the Union to assign their staff solely in the interests of the service applies even where it is likely to entail a change in the place of employment not desired by the staff member concerned (judgment of 24 February 1981 in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraph 28).
71 Even in a situation involving, as in the present case, an employment contract containing a clause explicitly stipulating a specific place of employment (see Opinion of Advocate General Slynn in Joined Cases Aldinger and Virgili v Parliament, 23/87 and 24/87, EU:C:1988:336, pp. 4403 and 4406), the Court of Justice has confirmed the guidance of the case-law set out in paragraph 70 above (judgment of 14 July 1988 in Aldinger and Virgili v Parliament, 23/87 and 24/87, EU:C:1988:406, paragraph 17).
72 Furthermore, it is equally settled case-law that, in the light of the freedom which must be available to the institutions when organising their services and adapting to changing requirements, the AECE may, in the interests of the service, change the place of employment of a member of the temporary staff without it being necessary to obtain the consent of the staff member concerned, though that staff member must still be heard (judgment of 24 February 1981 in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraph 28; judgment in Aubineau, EU:T:1996:104, paragraph 29; and judgment of 4 June 2009 in Plasa v Commission, F‑52/08, EU:F:2009:54, paragraph 77).
73 Regarding contract staff, irrespective of whether Article 7 of the Staff Regulations is applicable by analogy to such staff and it being made clear that the argument was raised in the initial application inasmuch as it was submitted by FM and FO, who are not parties to the present proceedings, the AECE may also decide to assign them and reassign them to another place, since, as the Court of Justice has held, only local staff, who are specifically recruited under contract in a particular place, are entitled to object to a change in their place of employment because for them the continuity of their place of work is part of their actual conditions of employment. In that regard, the Court has held that that continuity is balanced by the fact that local staff do not enjoy certain benefits conferred on officials and applicable by analogy to members of the temporary and contract staff (see, to that effect, judgment of 24 February 1981 in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraph 34), such as, inter alia, the expatriation allowance, the installation allowance, the daily allowance or the reimbursement of the costs of relocating to the new place of employment and the reimbursement of the costs of travel to the place of origin.
74 Consequently, even setting aside the fact that the applicants agreed to take up their duties in Budapest, the second plea in law relating to the AECE’s failure to respect the terms of their contracts and the rights allegedly acquired by the applicants to be assigned to Bramshill for the entire duration — including renewals — of their respective employment contracts must, in any event, be rejected.
Third plea in law: infringement of the principle of sound administration and of the duty to have regard for the welfare of staff
– Arguments of the parties
75 In support of their third plea in law, the applicants claim that they were able to draw clear and specific assurances from their respective employment contracts that their place of employment would continue to be Bramshill for the entirety of the duration of those contracts, in particular because, at the time those contracts were concluded, including in the case of FP who was employed from 1 December 2012, the Government of the United Kingdom had not yet announced its decision to sell the Bramshill site.
76 The applicants submit that, contrary to CEPOL’s assertions, they were not fully and effectively informed of the imminence of their change of assignment and the exact location to which they were being reassigned until around 15 May 2014. They therefore had a period of reflection of only a little over one month in which to decide whether or not to continue their respective employment relationships with CEPOL in Budapest. Such a period is short and infringes the principle of sound administration.
77 Furthermore, a transitional regime should have been introduced. In failing to introduce such a regime and in failing to take into account the personal needs of its members of staff, CEPOL infringed the principle of sound administration, as enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.
78 According to the applicants’ line of argument, taken from the arguments raised in connection with the second plea in law but rather falling to be addressed in connection with the present third plea in law, while they acknowledge that CEPOL’s members of staff could no longer remain at the Bramshill site, since that site was to be sold, the applicants nonetheless maintain that the AECE of CEPOL could have decided, instead of changing their place of employment, to offer them the opportunity to telework from their homes in the United Kingdom while retaining the benefit of the applicable correction coefficient for that Member State, or to offer them financial compensation, either accompanied or unaccompanied by a termination of their duties. They refer in this instance to the difference between the correction coefficients applicable to the United Kingdom and Hungary.
79 Furthermore, according to the applicants, contrary to CEPOL’s assertions, neither the Council’s decision nor the United Kingdom’s decision that it would no longer host CEPOL’s seat necessarily meant that the staff of that agency had to be reassigned, ipso facto, to the new seat in Budapest.
80 CEPOL contends that the third plea in law should be rejected. It argues, inter alia, that the applicants, who are merely relying on a unilateral interpretation of their respective employment contracts, implicitly admit that they received no explicit assurances as regards the immutability of their place of employment from any person entitled to commit the AECE of CEPOL. Moreover, as regards the issue of introducing a transitional regime, CEPOL notes that the applicants are not arguing that the decision of the EU legislature establishing CEPOL’s new seat in Budapest is unlawful, with the result that they cannot rely on the case-law stemming from, inter alia, the judgments of 30 September 1997 in Ryan v Court of Auditors (T‑121/97, EU:T:1998:232, paragraphs 98 and 104) and 29 November 2006 in Campoli v Commission (T‑135/05, EU:T:2006:366, paragraph 85), since that case-law concerns the obligations of the EU legislature and not those of the AECE, which alone is being challenged in the present case.
– Findings of the Tribunal
81 In the first place, the Tribunal recalls that the reassignment of an EU official or member of staff does not constitute an abnormal and unforeseeable event in his career although it may cause him family and financial difficulties, it being understood that the administration may be required to meet needs of the service which compel it to decide on such a reassignment (judgments of 14 July 1977 in Geist v Commission, 61/76, EU:C:1977:127, paragraph 34, and 14 July 1988 Aldinger and Virgili v Parliament, 23/87 and 24/87, EU:C:1988:406, paragraph 17; and order of 11 February 1999 in Costacurta v Commission, C‑75/98 P, EU:C:1999:73, not published, paragraph 49).
82 That is the case, inter alia, where the places of employment of the institution or agency to which the official or member of staff is assigned are spread over several Member States or located in third States (see, to that effect, judgments of 14 July 1977 in Geist v Commission, 61/76, EU:C:1977:127, paragraph 34, and 14 July 1988 Aldinger and Virgili v Parliament, 23/87 and 24/87, EU:C:1988:406, paragraph 17; order of 11 February 1999 in Costacurta v Commission, C‑75/98 P, EU:C:1999:73, not published, paragraph 49; and judgment of 14 September 2011 in Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 248).
83 Contrary to the applicants’ assertions, the same applies, a fortiori, when it is the EU legislature that has decided to transfer the seat of an agency of the Union from one Member State to another Member State. Indeed, the General Court of the European Union has previously held that the obligation for the institutions and agencies of the Union to assign their staff solely in the interests of the service and their corresponding right to impose of their own motion changes to the place of employment not desired by the staff member concerned apply not only with regard to officials but also with regard to members of the temporary staff (judgment in Aubineau, EU:T:1996:104, paragraph 30).
84 In the second place, regarding the argument relating to the alleged legitimate expectation on which officials or members of staff may rely as regards the immutability of their place of employment, the Court of Justice has held that the functioning of the administration of the European Union entails an obligation for any EU official or member of staff to accept any assignment, provided that it is consistent with the category and grade of his post and in accordance with the requirements of the service, throughout the European Union in any place of employment within the institution in which he took up his duties, it being understood that constraints of a personal and family nature to which those conditions may give rise in the operation of the service are compensated for by the advantages and privileges conferred by the European civil service (judgments of 24 February 1981 in Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraphs 23 and 37, and 23 January 1986 Rasmussen v Commission, 173/84, EU:C:1986:29, paragraph 25).
85 Furthermore, the principle of the protection of legitimate expectations, which is one of the fundamental principles of EU law, means that an official or member of staff has the right to rely on that principle only when he is in a situation where it is apparent that the administration of the European Union, by giving him specific assurances complying with the applicable standards, has led him to entertain well-founded expectations (judgment of 16 July 2015 in Murariu v EIOPA, F‑116/14, EU:F:2015:89, paragraph 97 and the case-law cited). In addition, the scope of that principle is defined by the circumstances to which it is applied and, in particular, by the relationship between the parties concerned (judgment in Aubineau, EU:T:1996:104, paragraph 44).
86 In that regard, first, the Tribunal observes that CEPOL’s members of staff were immediately informed by the AECE of CEPOL as and when the various decision-making stages relating to CEPOL’s change of seat were brought to its attention. In particular, three information meetings were held, thereby complying with the principle of sound administration.
87 Therefore, from 12 December 2012 — the date of the announcement by the Government of the United Kingdom that it wished to discontinue hosting the Agency — CEPOL’s members of staff could no longer be unaware that the Agency would cease to carry out its operational activities in Bramshill and, from 8 October 2013 — the date on which the Member States decided by common agreement on the city of Budapest as the host for CEPOL’s new seat — they could no longer be unaware that, in all likelihood, they would be required, in the interests of the service, to take up their duties at the new seat established by the EU legislature. In those circumstances, CEPOL’s members of staff were given, in accordance with the principle of sound administration, a period which can reasonably be said to be sufficient for reflecting on the appropriateness of continuing their professional activities in the service of CEPOL at that new seat (see, to that effect, judgment of 14 July 1988 in Aldinger and Virgili v Parliament, 23/87 and 24/87, EU:C:1988:406, paragraph 19).
88 In particular, the deadline — formally set as 30 June 2014 in the contested decision — which was given to CEPOL’s members of staff for expressing their respective decisions in that regard does not appear to be manifestly unreasonable in the light of the particular circumstances of the present case. The Tribunal notes that, following the definitive adoption by the EU legislature on 15 May 2014 of its decision to transfer CEPOL to Budapest, the AECE of CEPOL, in this instance, its Director, immediately initiated the necessary consultations with the Commission and adopted the contested decision before Regulation No 543/2014 had even been published in the Official Journal of the European Union on 29 May 2014. In so doing, the AECE of CEPOL acted with due diligence in order to respond simultaneously to the urgency expressed by the EU legislature in recital 9 of Regulation No 543/2014 and to the demands of the United Kingdom as regards the vacating of the Bramshill site by 30 September 2014.
89 Second, the Tribunal considers that the applicants could not reasonably believe that their employment relationship would continue to be based in the United Kingdom except in so far as CEPOL maintained its operational activities, for which they would be responsible, in that Member State (see, to that effect, judgment in Aubineau, EU:T:1996:104, paragraph 46) and, in that regard, it must be borne in mind that the AECE has a broad discretion in the organisation of its services in accordance with the tasks entrusted to it, in this instance by the EU legislature, that broad discretion being indispensable in order to enable the AECE to organise its work effectively and to adapt that organisation to varying needs (judgment of 23 October 1990 in Pitrone v Commission, T‑46/89, EU:T:1990:62, paragraph 32).
90 It is clear from the decision of the EU legislature and the position expressed, in particular, in the Home Secretary’s letters of 12 December 2012 and 8 February 2013, by the Government of the United Kingdom that CEPOL would no longer maintain operational activities in the territory of that Member State following the Agency’s change of seat. Consequently, and as has been stated above, the AECE had no room for manoeuvre in implementing Article 4 of Decision 2005/681/JHA, as amended by Regulation No 543/2014, because, in providing that, henceforth, ‘the seat of CEPOL shall be in Budapest, Hungary’, the Council and the Parliament, acting in accordance with the ordinary legislative procedure, had implicitly but necessarily decided that the staff of CEPOL had to be reassigned to the new seat of that agency.
91 In the third place, the applicants, who, moreover, did not — unlike FK — ask to benefit from the teleworking scheme, even in their respective complaints, have in no way demonstrated that it could have been in the interests of the service, having regard to their specific respective responsibilities, for them to continue their professional activities in the service of CEPOL from their homes in the United Kingdom.
92 In any event, the Tribunal observes that, owing to the nature of the applicants’ respective duties within CEPOL and in the light of the specific operational constraints of such an agency, which only has around thirty members of temporary or contract staff (see, to that effect, judgments of 4 December 2013 in ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraphs 97 and 100, and 10 September 2014 Tzikas v ERA, F‑120/13, EU:F:2014:197, paragraph 93), a scheme of teleworking from the United Kingdom seems difficult to reconcile with the interests of the service of an agency such as CEPOL whose seat is now in Hungary and in respect of which the AECE is the sole authority responsible for assessing the needs of the service and assigning the staff at its disposal accordingly (see, to that effect, judgment of 23 October 1990 in Pitrone v Commission, T‑46/89, EU:T:1990:62, paragraph 60 and the case-law cited). Therefore, the AECE of CEPOL cannot be criticised for not having suggested to the applicants, in the decisions rejecting the complaints, to apply to benefit from a scheme of teleworking from the United Kingdom.
93 In the fourth place, regarding the duty to have regard for the welfare of staff, the Tribunal finds that — as CEPOL has argued — the contested decision gave CEPOL’s members of staff the possibility of postponing the date of taking up their duties at the new place of employment. That initiative was such as to take into account the interests of the proper functioning of the service and the interest of each member of staff in seeing the specificities of his individual situation give rise to adjustments (see, to that effect, judgment of 17 December 1981 in Demont v Commission, 791/79, EU:C:1981:307, paragraphs 8 and 9).
94 Moreover, as regards the AECE’s taking into account the financial consequences inherent in relocation for each member of staff, the Tribunal notes that the Director of CEPOL took the initiative in seeking the Commission’s advice in order that he might be able to reclassify all members of staff upon the transferral of the Agency to Budapest and that the AECE of CEPOL allowed the applicants to receive all the financial benefits laid down in the Staff Regulations which they were entitled to claim in connection with their taking up duties in Budapest.
95 In the fifth and last place, regarding the fact that the AECE did not continue to apply to the applicants the applicable correction coefficient for the United Kingdom after they took up their duties in Budapest, it should be borne in mind that the application of a given correction coefficient does not form part, as such, of the remuneration of officials and members of staff and that it is liable to vary over time depending on the economic environment of the place of employment or residence (judgments of 5 February 2016 in Barnett and Mogensen v Commission, F‑56/15, EU:F:2016:11, paragraph 74; Clausen and Kristoffersen v Parliament, F‑62/15, EU:F:2016:12, paragraph 59; and Barnett and Others v EESC, F‑66/15, EU:F:2016:13, paragraph 60).
96 The principle of purchasing power equivalence, with which the application of a correction coefficient is consistent, is based on the finding of a significant difference between the economic situations of different Member States and third States as places of employment and means that the financial entitlements of EU officials and members of staff should secure, in equivalent professional and family situations, identical purchasing power irrespective of the place of employment or residence. That principle, which is based on the principle of equal treatment, is implemented by the application to the nominal amount of remuneration, or, in full or in part, to the nominal amount of certain pensions, of the correction coefficient expressing the ratio between the cost of living in reference cities Brussels (Belgium) and Luxembourg (Luxembourg) and the cost of living in the place of employment or residence (judgment of 5 February 2016 in Barnett and Mogensen v Commission, F‑56/15, EU:F:2016:11, paragraph 73 and the case-law cited).
97 In those circumstances, it would have been manifestly contrary to the provisions of the Staff Regulations to apply the correction coefficient applicable to the United Kingdom to the applicants’ salaries after they had taken up their duties in Budapest because, in such a situation, the applicants would have benefited from a purchasing power substantially greater not only than that of other EU officials and members of staff, but also than that from which they themselves benefited when they were employed at Bramshill.
98 In any event — as CEPOL contends — the applicants have not argued that the applicable correction coefficient for Hungary is unlawful in that it would not reflect the — in their view, high — cost of living to which they claim to be subject. Moreover, it is true that the unilateral withdrawal of a financial advantage granted on an ongoing basis may be subject, in certain cases, to consultation with members of staff where that advantage was freely granted them by their employer (judgment of 26 February 2016 in Bodson and Others v EIB, T‑241/14 P, EU:T:2016:103, paragraph 98). However, the application of correction coefficients to the salaries of members of the temporary and contract staff is not the result of a choice made by the AECE, but is an automatic application, based purely on the place of employment of the staff members concerned, of the provisions laid down in the Staff Regulations, that is, laid down in a regulation having direct effect as referred to in the second paragraph of Article 288 TFEU. Therefore, notwithstanding the fact that the applicants’ initial employment contracts mention Bramshill as the place of work, the AECE had no room for manoeuvre as regards the appropriateness of applying, from 1 October 2014, the correction coefficient provided for Hungary to the applicants’ salaries since their place of employment was in Budapest from that date.
99 Having regard to all of the foregoing, the third plea in law must be rejected and, accordingly, the claims for annulment must be dismissed in their entirety.
2. Claims for damages
Material damage
Arguments of the parties
100 According to the applicants, their request for financial compensation is the consequence of an act adversely affecting them, in this instance the contested decision. Had that decision not been made, their financial entitlements would have remained linked to the performance of their duties at Bramshill. Their claims for damages are therefore ancillary to their claims for annulment and, consequently, should be declared admissible, even though they have not lodged a complaint against the AECE’s decision, included in the decisions rejecting the complaints, not to grant them fair financial compensation, a request which they had made in their respective complaints.
101 The applicants claim material damage, chiefly represented by the costs relating to relocating to Budapest.
102 FN sets out his various items of expenditure, attributable, inter alia, to the structure of his household and the fact that his spouse continues to reside in the United Kingdom. His expenditure in this instance consists of expenditure on accommodation in Budapest, together with household expenses, such as insurance premiums, telephone subscriptions and supplies of gas and electricity. In respect of the period laid down in his employment contract, running from 1 October 2014 to 31 March 2018 (the date on which that contract expires), that is, for 42 months, he claims EUR 2 000 per month corresponding to the difference between the net salary he was receiving as a result of the application of the correction coefficient provided for the United Kingdom when he was employed at Bramshill and the net salary he now receives in Budapest as a result of the application of the correction coefficient provided for Hungary. He also claims, in respect of that same period, an amount of EUR 1 000 per month to compensate for the increase in various household expenses as a result of his taking up duties in Budapest. The minimum total amount sought by FN is thus EUR 126 000. However, in the alternative, he claims amounts of EUR 108 780 and EUR 67 941.72.
103 FP claims, by way of compensation for her material damage, payment of the difference between the net remuneration she received for performing her duties at Bramshill and that which she has received since being assigned to Budapest for the entirety of the remainder of the term of her employment contract, namely 36 months. The minimum total amount she is claiming is thus EUR 101 124.36, to which it is also necessary to add a sum which is such as to take account of the possibility that her employment contract, which expires on 30 November 2017, may be renewed.
104 FQ claims, by way of compensation for her material damage, payment of the difference between the net remuneration she received for performing her duties at Bramshill and that which she has received since being assigned to Budapest for the entirety of the remainder of the term of her employment contract, namely 60 months. The amount she is claiming is thus EUR 205 080.60, as that amount must also take into account the possibility that FQ may be able to take early retirement in five years’ time. To that amount an additional sum of EUR 52 000 should be added corresponding to the reduction to which FQ was compelled to agree as regards the sale price of a house which she owns in France, it being emphasised that she must also make repayments on a loan concerning a dwelling situated in Finland in relation to which she incurred substantial renovation costs in 2014 and 2015. FQ thus seeks a minimum total amount of EUR 257 080.60 by way of compensation for her material damage.
105 CEPOL argues that the claims for damages are inadmissible as they do not meet the requirements of the pre-litigation procedure. The application of the correction coefficient provided for Hungary is an automatic consequence of the applicants taking up duties in that Member State. Accordingly, contrary to their assertions, it was for them to submit a request to continue to benefit from the correction coefficient which was applied to their salaries when they were performing their duties in the United Kingdom, and then to lodge a complaint against the decision of the AECE of CEPOL regarding that request. As it is, in the present case, it was not until they were lodging their respective complaints that the applicants asked, for the first time, to be granted fair financial compensation in connection with their taking up duties in Hungary. In its responses to those complaints, the AECE of CEPOL rejected that request, but the applicants did not lodge any complaint against those rejections, with the result that the claims for damages are inadmissible.
Findings of the Tribunal
106 The pre-litigation procedure in an action for damages differs depending on whether the damage for which compensation is sought is the result of an act adversely affecting the person concerned within the meaning of Article 90(2) of the Staff Regulations or of conduct by the administration which contains nothing in the nature of a decision. In the first situation, it is for the person concerned to lodge a complaint with the appointing authority or the AECE, within the prescribed period, against the act in question. In the second situation, by contrast, the administrative procedure must begin with the submission of a request for compensation pursuant to Article 90(1) of the Staff Regulations and continue, where appropriate, with the lodging of a complaint against the decision rejecting that request (order of 25 February 1992 in Marcato v Commission, T‑64/91, EU:T:1992:22, paragraphs 32 and 33; judgment of 6 November 1997 in Liao v Council, T‑15/96, EU:T:1997:169, paragraph 57; and order of 20 March 2014 in Michel v Commission, F‑44/13, EU:F:2014:40, paragraph 43).
107 In that regard, according to settled case-law, the legal classification of something written by an official as a ‘request’ within the meaning of Article 90(1) of the Staff Regulations or as a ‘complaint’ within the meaning of Article 90(2) of those regulations is a matter for the Court alone and not for the parties (judgments of 30 April 1998 in Cordiale v Parliament, T‑205/95, EU:T:1998:76, paragraph 34, and 15 February 2011 AH v Commission, F‑76/09, EU:F:2011:12, paragraph 38; and order of 16 December 2015 in Bärwinkel v Council, F‑118/14, EU:F:2015:154, paragraph 61).
108 In the present case, it is common ground that, in the contested decision, the AECE of CEPOL did not take a position on the financial consequences under the Staff Regulations for each individual applicant. In particular, no mention is made in that decision of the application of the correction coefficient provided for Hungary instead of the correction coefficient provided for the United Kingdom.
109 Thus, it is apparent from the case file that — as CEPOL contends — it was only in their respective complaints that the applicants, who had at that time already agreed to take up their duties in Budapest, formally submitted a request to the AECE of CEPOL for the taking up of their duties to be accompanied by measures intended to provide fair compensation for the reduction in their net income resulting from, in particular, in this instance, the application of the correction coefficient provided for Hungary. Consequently, the Tribunal considers that the applicants’ claim seeking fair financial compensation in connection with their taking up their respective duties in Budapest constituted a request within the meaning of Article 90(1) of the Staff Regulations, a request which the AECE of CEPOL rejected in the decisions rejecting the complaints.
110 Therefore, given that, prior to bringing the present action, the applicants did not lodge a complaint, pursuant to Article 90(2) of the Staff Regulations, against the refusal by the AECE of CEPOL, as expressed in the decisions rejecting the complaints, to grant them fair financial compensation, the applicants’ claims for damages in connection with the material damage which they claim to have suffered must be dismissed as inadmissible for failing to meet the requirements of the pre-litigation procedure.
111 In any event, even assuming that the claims for damages relating to the material damage can be regarded as closely linked to the claims for annulment of the contested decision and the decisions rejecting the complaints, the fate of those claims for damages must mirror that of the claims for annulment and, accordingly, the claims for damages must be dismissed in any event (judgment of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, paragraph 105 and the case-law cited).
112 In the same vein, as was recalled in paragraph 84 above, in the context of the reassignment of officials and members of staff to another place of employment within the institution or agency in which they took up their duties, the constraints of a personal and family nature to which those conditions may give rise in the operation of the service are compensated for by the financial benefits laid down in the Staff Regulations, in particular the expatriation allowance, the installation allowance, the daily allowances and the reimbursement of the costs of relocating to the new place of employment and travel to the place of origin.
113 As regards the applicants’ claims that they should continue to benefit from the correction coefficient applicable to the United Kingdom after taking up their respective duties in Budapest, those claims must be dismissed, as was found in paragraphs 95 to 98 above.
114 In the light of the foregoing, the claims for damages seeking compensation for material damage must be dismissed as inadmissible and, in any event, unfounded.
Non-material damage
Arguments of the parties
115 The applicants claim to have suffered non-material damage which cannot be compensated for by the annulment of the contested decision and the decisions rejecting the complaints. Besides the particularly serious illegality vitiating those decisions, they rely on, first, the fact that they had — allegedly — only five weeks to reach a decision regarding their relocating to Budapest, and, second, the uncertainties and feelings of insecurity which CEPOL did nothing to remedy, including FN’s being obliged to live apart from his family who had remained in the United Kingdom. The applicants therefore claim non-material damage, estimated at EUR 15 000 per applicant.
116 CEPOL contends that the claims for damages relating to the non-material damage should be dismissed.
Findings of the Tribunal
117 The Tribunal considers that, as the claims for annulment have been dismissed, it is also necessary to dismiss the claims for damages seeking compensation for non-material damage (judgment of 15 December 2015 in Bonazzi v Commission, F‑88/15, EU:F:2015:150, paragraph 105 and the case-law cited), given that those claims are closely linked and that, in any event, CEPOL’s approach in the present case is not vitiated by any unlawfulness.
118 Having regard to all of the foregoing, the claims for damages must be dismissed, as must the action in its entirety.
Costs
119 Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Pursuant to Article 102(1) of those rules, the Tribunal may decide, if equity so requires, that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.
120 It is apparent from the grounds set out in the present judgment that the applicants have been unsuccessful. In addition, CEPOL has explicitly asked that the applicants be ordered to pay the costs. As the circumstances of the present case do not justify the application of Article 102(1) of the Rules of Procedure, the applicants must be ordered to bear their own costs and to pay the costs incurred by CEPOL.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders FN, FP and FQ to bear their own costs and to pay the costs incurred by the European Police College.
Van Raepenbusch | Kreppel | Svenningsen |
Delivered in open court in Luxembourg on 11 April 2016.
W. Hakenberg | | S. Van Raepenbusch |