JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

14 May 2014

Case F‑11/13

Nicola Delcroix

v

European External Action Service (EEAS)

(Civil service — Official — EEAS — Head of delegation in a third country — Transfer to the headquarters of the EEAS — Early termination of functions as head of delegation)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Delcroix essentially seeks annulment of the decision to transfer him to the headquarters of the European External Action Service (EEAS) in Brussels (Belgium) and to thereby terminate early his posting as head of the European Union delegation in the Republic of Djibouti. In the same application, Mr Delcroix seeks an order that the EEAS pay him the difference between his previous salary and the salary he has received since returning to the headquarters of the EEAS.

Held:      The decision, communicated by letter of 8 March 2012, to transfer Mr Delcroix to the headquarters of the European External Action Service and to thereby terminate early his posting as head of the European Union delegation in the Republic of Djibouti is annulled. The European External Action Service is to bear its own costs and is ordered to pay the costs incurred by Mr Delcroix.

Summary

1.      Officials — Organisation of departments — Assignment to a post as head of an EU delegation — Reassignment of an official to headquarters in the interests of the service — Competent authority

(Art. 221 TFEU; Council Decision 2010/427, Art. 5)

2.      Officials — Principles — Rights of the defence — Scope

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a))

1.      It is clear from Article 221 TFEU and from Article 5 of Decision 2010/427 establishing the organisation and functioning of the European External Action Service (EEAS) that the delegations provide the Union’s diplomatic representation in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961 and are placed under the authority of the European Union’s High Representative for Foreign Affairs and Security Policy, so that a decision to recall a head of delegation to headquarters may not, as such, fall to the Executive Director of the European External Action Service and Director of Human Resources.

(see para. 25)

2.      Observance of the rights of the defence constitutes a fundamental principle of EU law from which it follows that the person concerned must be given the opportunity, before the drawing up of a decision adversely affecting him, to make his views effectively known as to the truth and relevance of the facts and circumstances on which that decision was based. In order for a breach of the right to be heard to lead to annulment of the contested decision, it is also necessary to examine whether, had it not been for that irregularity, the outcome of the procedure might have been different. To hold, in such circumstances, that the competent authority would have adopted the same decision, even after having heard the person concerned, would amount to rendering nugatory the fundamental right to be heard affirmed in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, since the very essence of that right implies that the person concerned should have the possibility of influencing the decision-making process at issue.

(see paras 35, 42, 44)

See:

10 July 1986, 234/84 Belgium v Commission, para. 27; 5 October 2000, C‑288/96 Germany v Commission, para. 99; 9 November 2006, C‑344/05 P Commission v De Bry, para. 37

12 December 2013, F‑129/12 CH v Parliament, para. 38

14 September 2011, T‑236/02 Marcuccio v Commission, para. 115