Case T‑11/17
RK
v
Council of the European Union
Judgment of the General Court (Second Chamber, Extended Composition), 7 February 2019
(Civil service — Officials — Article 42c of the Staff Regulations — Placing official on leave in the interests of the service — Equal treatment — Prohibition of discrimination on grounds of age — Manifest error of assessment — Right to be heard — Duty to have regard for the welfare of officials — Responsibility)
1. Acts of the institutions — Directives — Directive 2000/78 establishing a general framework for equal treatment in employment and occupation — Direct imposition of obligations on EU institutions in relations with their staff — Not included — Invocability — Scope
(Art. 288, third para., TFEU; Staff Regulations of Officials, Art. 42c; Council Directive 2000/78, Art. 21)
(see paragraphs 67-70)
2. Officials — Leave — Placing official on leave in the interests of the service — Differential treatment of officials approaching the age of retirement — Discrimination based on age — Appropriateness and proportionality of the treatment — No infringement of the equal treatment principle
(Charter of Fundamental Rights of the European Union, Arts 21(1) and 52(1); Staff Regulations of Officials, Arts 36 and 42c; European Parliament and Council Regulation No 1023/2013)
(see paragraphs 86-91, 93, 94, 103, 105, 111, 123)
3. Officials — Leave — Placing official on leave in the interests of the service — Concept of interests of the service — Taking into account characteristics specific to the officials concerned — Ability to acquire new competences and to adapt to the changing work environment — Lawfulness
(Staff Regulations of Officials, Art. 42c)
(see paragraphs 133-137)
4. Officials — Leave — Placing official on leave in the interests of the service — Administration’s discretion — Judicial review — Limits — Manifest error of assessment
(Staff Regulations of Officials, Art. 42c)
(see paragraphs 140, 141)
5. Officials — Leave — Placing official on leave in the interests of the service — Observance of the rights of the defence — Obligation to hear the person concerned before adopting a decision — Scope
(Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations, Art. 42c)
(see paragraphs 175-181)
6. Officials — Administration’s duty to have regard for the interests of officials — Taking into consideration of official’s interests — Limits — Rationalisation of departments
(Staff Regulations, Art. 24)
(see paragraphs 189, 190)
7. Judicial proceedings — Costs — Burden thereof — Taking into account of the requirements of equity — Order for the successful party to pay some of the costs
(Rules of Procedure of the General Court, Arts 134(1) and (135)
(see paragraphs 203, 206, 207)
Résumé
In the judgment in RK v Council (T‑11/17), delivered on 7 February 2019, the General Court dismissed an official’s action for the annulment of a Council decision placing her on leave in the interests of the service on the basis of Article 42c of the Staff Regulations of Officials of the European Union. The applicant invoked, inter alia, a plea of illegality against that Article 42c, based on infringement of the principle of equality before the law and non-discrimination on grounds of age. In addition, she contested the Council’s assessment of ‘organisational needs’ within the meaning of the abovementioned provision of the Staff Regulations.
First of all, the Court concluded that the legality of Article 42c of the Staff Regulations must be assessed in the light of Article 21(1) of the Charter of Fundamental Rights of the European Union, while taking into account Directive 2000/78, (1) the provisions of which may serve as a source of inspiration for determining the obligations of the Union legislature as regards the European Union civil service.
Next, the Court concluded that the difference in treatment on grounds of age, introduced by Article 42c of the Staff Regulations, is proportional and does not infringe Article 21(1) of the Charter in that it meets the criteria set out in Article 52(1) thereof. In that regard, the Court considered that, in order to achieve the legitimate objective of optimising investment in vocational training, it does not appear unreasonable for the Union legislature to consider it necessary to provide for leave in the interests of the service only for officials falling within the age bracket of 55 to 66 years and who, as a result of the application of Article 42c of the Staff Regulations to them, suffer career and financial disadvantages compared to younger officials who do not fall within the abovementioned age range.
Next, with regard to the application of Article 42c of the Staff Regulations, the Court recalled that that article explicitly refers to the ‘interests of the service’. Accordingly, the ‘organisational needs linked to the acquisition of new competences’, also referred to in that article, constitute a specific aspect of the interests of the service. To the extent that ‘organisational needs’ are linked to the ‘acquisition of new competences’ and constitute only one specific aspect of the interests of the service in the context of Article 42c of the Staff Regulations, the assessment by an institution of the ability of the officials concerned to acquire new competences and to adapt to the changing work environment is compatible with that article.
The Court stated that it is also not contrary to the ratio legis of Article 42c of the Staff Regulations to take into account in that way a characteristic specific to the officials concerned. In so far as it has been established that that provision pursues the objective of optimising the institutions’ investments linked to vocational training in terms of cost-efficiency, it appears compatible with that objective for the institution to take into account, for the purpose of determining the costs of investments relating to vocational training, the ability of the officials concerned to acquire new competences and to adapt to the changing work environment. Taking into account in that way a characteristic specific to the officials concerned is also justified by the fact that the application of Article 42c of the Staff Regulations has unfavourable consequences for those officials and may be imposed on them against their will.
Moreover, in so far as the purpose of that assessment is the pursuit of the interests of the service, it must necessarily relate to the future ability of the officials concerned to acquire new competences and to adapt to the changing work environment and must therefore include an element of prognosis. If that were not the case, the assessment would not pursue the interests of the service.
Finally, the Court recognised that the institutions have a wide discretion to assess the organisational needs linked to the acquisition of new skills, the use of which can only be called into question in the event of a manifest error of assessment, material inaccuracy or misuse of powers.