Case T‑271/10 RENV II
H
v
Council of the European Union
Judgment of the General Court (Third Chamber), 18 November 2020
(Common foreign and security policy – National staff member on secondment to the EUPM in Bosnia and Herzegovina – Redeployment decision – Misuse of powers – Interests of the service – Psychological harassment – Punitive nature of the redeployment – Liability – Non-material damage)
1. Common foreign and security policy – Civilian missions of the European Union – Personnel – Assignment – Competent authorities’ discretion – Judicial review – Limits
(see paragraphs 43, 44, 49)
2. Common foreign and security policy – Civilian missions of the European Union – Personnel – Action before the EU judicature – Action brought by a national staff member on secondment against a redeployment decision – Redeployment against a background of psychological harassment – Pleas in law – Misuse of powers – Definition – Redeployment decision taken because of the denunciation by the staff member concerned of irregularities in the management of the mission – Punitive nature of the redeployment – Included
(see paragraphs 44, 45, 48, 50, 55, 77)
3. Officials – Rights and obligations – Freedom of expression – Disclosure of facts giving rise to a presumption of the existence of illegal activity or serious failure to comply with obligations – Scope of the obligation – Protection of the official who communicated such facts – Scope – Applicability to a member of a European Union police mission
(Staff Regulations, Art. 22a)
(see paragraph 76)
4. Procedure before the Court – Subject matter of the dispute – Alteration once proceedings have been started – Extension of the claim for compensation at the stage of the reply – Claim based on elements raised before the first instance court – Admissibility
(Rules of Procedure of the General Court, Art. 76(e), and Art. 84(1))
(see paragraphs 84, 88)
5. Judicial proceedings – Production of evidence – Time limit – Evidence lodged out of time – Conditions – Applicability to proceedings referred back to the General Court
(Rules of Procedure of the General Court, Art. 85(3))
(see paragraph 90)
6. Non-contractual liability – Conditions – Real and certain damage caused by an illegal measure – Annulment of the illegal act in dispute – Whether appropriate reparation for non-material damage – Limits
(Art. 340, second para., TFEU)
(see paragraphs 97, 98)
7. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Condition not necessary in members of staff of European Union police missions
(Arts 268, 270 and 340, second para., TFEU; Staff Regulations, Arts 90 and 91)
(see paragraph 105)
8. Non-contractual liability – Conditions – Damage – Damage for which compensation is available – Non-material damage caused by the redeployment of a staff member of a European Union police mission from a ‘senior’ post to another ‘non-senior’ post in the context that staff member denouncing irregularities – Included
(Art. 340, second para., TFEU)
(see paragraph 108)
Résumé
The applicant, H, an Italian judge, was seconded to the European Union Police Mission (EUPM) (1) in Sarajevo (Bosnia and Herzegovina), in order to perform the duties of Criminal Justice Unit Adviser, with effect from 14 November 2008. Her secondment to occupy the post of Chief of Legal Office, which was later renamed Senior Legal Advisor/Legal Counsel, was twice extended.
By letter of 17 March 2010, the applicant and one of her colleagues informed their supervisor of alleged irregularities in the management of the EUPM. Afterwards, by two decisions of the Head of the EUPM, (2) the applicant was redeployed, due to operational reasons based on the need to have prosecutorial advice available in a regional office, to the post of Criminal Justice Adviser – Prosecutor at the regional office in Banja Luka (Bosnia and Herzegovina).
The applicant lodged an action seeking, first, the annulment of the redeployment decisions, and, second, compensation for the non-material damage and material damage she alleged she had suffered. In support of the application for annulment, the applicant alleged, in particular, that there was psychological harassment and a misuse of power. The General Court annulled the contested decisions and upheld the application for compensation to the extent that it sought compensation for non-material damage caused by those decisions.
Findings of the Court
At the outset, the Court notes, first, that decisions adopted by the EUPM relating to human resources have an operational aspect falling within the Common Foreign and Security Policy (CFSP), and, second that they constitute, by their very essence, acts of staff management, similar to all decisions adopted by the EU institutions in the exercise of their competences.
Next, the Court notes that a redeployment decision would be vitiated by a misuse of power if it had been adopted in a context of psychological harassment and in order to undermine the personality, dignity or physical or psychological integrity of the staff member who is the subject of such a decision. The Court observes that that is also the case where the redeployment amounts, in fact, to a punishment of the applicant for her criticisms of the management of the EUPM. Such circumstances would, according to the Court, constitute a misuse of power, since the Head of the EUPM would have used his powers for a purpose other than that for which they had been conferred on him and, furthermore, the redeployment could not be regarded as being in the interest of the service. In the present case, the Court upheld the plea alleging a misuse of power.
Furthermore, the Court considered that an award of EUR 30 000, assessed ex aequo et bono, was appropriate compensation for the non-material damage suffered by the applicant as a result of her redeployment by the contested decisions
As regards the application for compensation for material loss, the Court observed that the applicant had not made that application in the application instituting proceedings. However, it considered that the material loss allegedly suffered by the applicant falls within the factual context that arose after the application was lodged, while being connected, according to the applicant, with the acts of psychological harassment she had allegedly suffered in the EUPM and had set out in the application. In those circumstances, the Court considers that it would be contrary to the proper administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application to claim the damages in question. As to the merits, that application is rejected by the Court.
The EUPM commenced on 1 January 2003, was extended on several occasions and ended during 2012.