JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
7 September 2022 (*)
(Civil service – Officials – Teleworking – Claim for reimbursement of telephone and internet connection expenses – Claim rejected – Plea of illegality – Partial admissibility – Article 71 of and Annex VII to the Staff Regulations – Duty to have regard for the welfare of officials – Principle of equality and non-discrimination – Right to respect for private life)
In Case T‑486/21,
OE, represented by G. Hervet, lawyer,
applicant,
v
European Commission, represented by I. Melo Sampaio and L. Vernier, acting as Agents,
defendant,
supported by
European Parliament, represented by M. Windisch, S. Bukšek Tomac and J. Van Pottelberge, acting as Agents,
and by
Council of the European Union, represented by M. Bauer, acting as Agent,
interveners,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, L. Madise and R. Frendo (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the written procedure, inter alia:
– the application lodged at the Court Registry on 3 August 2021,
– the applications to intervene of the Council of the European Union and of the European Parliament of 27 September and 17 November 2021 which were granted by the President of the Fourth Chamber of the General Court on 12 November and 15 December 2021, respectively,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By her action based on Article 270 TFEU, the applicant, OE, seeks, in essence, first, annulment of the decision of the Office for Infrastructure and Logistics in Brussels (OIB) of the European Commission of 18 December 2020 rejecting her claim for reimbursement of professional expenses resulting from the teleworking arrangements imposed on her and for a 4G USB dongle, and, secondly, an order that the Commission, first of all, reimburse her for those expenses, next, provide her with that internet access and, lastly, pay her compensation of EUR 10 000 for the damage she has allegedly suffered.
I. Background to the dispute
2 At the material time, the applicant was an official of the Commission.
3 On 17 March 2020, people living in Belgium were placed under lockdown owing to the COVID-19 pandemic. The applicant was therefore required, like nearly all the Commission’s staff, to perform her duties via teleworking from that date.
4 For the supply of her telephone and internet access services, the applicant has a subscription contract with the company VOO covering inter alia a monthly volume of internet data of 100 gigabytes (GB) for a monthly flat rate of EUR 37.46. Above that ceiling, an additional rate is applicable to her.
5 VOO invoiced the applicant for EUR 1.89 for telephone calls in September 2020 to the helpdesk and to the Commission’s Directorate-General (DG) for Informatics. In November 2020, VOO also invoiced her for an additional EUR 50 because she had used 137.434 GB in excess of her internet flat rate during the previous month of October.
6 As she considered that the expenses referred to in paragraph 5 above were due to the teleworking arrangements decided by the Commission, the applicant submitted, on 2 December 2020, a claim for reimbursement of EUR 51.89 pursuant to Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
7 On 7 December 2020, the applicant supplemented her claim by suggesting that the Commission should provide her, and any other officials in a similar teleworking situation, with a 4G USB dongle which would enable her to use the internet for professional purposes outside the Commission premises.
8 By decision of 18 December 2020, the Commission’s OIB rejected the applicant’s claim for reimbursement of her expenses ‘with regard to the costs she had incurred and/or the equipment she had bought’. It told the applicant inter alia that she might qualify, under certain conditions, for reimbursement of the costs of acquiring an office chair and computer screen for her home (‘office equipment’). It also told her that, since the rules for reimbursing costs incurred for home office equipment had been fixed and did not include internet and telephone call expenses, no further action would be taken on the claim.
9 On 8 January 2021, the applicant lodged a complaint seeking reimbursement of the expenses referred to in paragraph 6 above and internet access for professional purposes.
10 On 5 May 2021, the Appointing Authority rejected the applicant’s complaint on the basis mainly that no legal basis, either in Article 71 of the Staff Regulations, or in the Commission Decision of 17 December 2015 on the implementation of telework in Commission Departments, or in the Commission’s Guidelines on teleworking during the COVID-19 pandemic (‘the Guidelines on teleworking’), in the version applicable on 18 December 2020, the date of the decision referred to in paragraph 8 above, allowed her claims to be upheld (‘the decision rejecting the complaint’).
11 The Appointing Authority pointed out that, in particular under Article 9(3) of the Commission Decision of 17 December 2015 on the implementation of telework in Commission Departments, teleworkers bear the cost of their internet subscription and of the communication charges incurred while teleworking and that the right to reimbursement of professional expenses provided for in Article 71 of the Staff Regulations is exercised under the conditions set by Annex VII to the Staff Regulations, which does not mention those expenses. It also pointed out that some officials of EU institutions received financial support for the expenses at issue by means of the tax abatement provided for in Article 3(4) of Regulation (EEC, Euratom, ECSC) No 260/68 of the Council of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities (OJ, English Special Edition, Series I 1968(I), p. 37), which led to a 10% reduction of the tax base for professional expenses, and that the applicant qualified for that abatement. The Appointing Authority considered that the refusal to reimburse the sum claimed did not result in any discrimination between officials, either according to their rank or to the internet access conditions, and that it did not mean for the applicant any infringement of a supposed contractual obligation to use her internet subscription for private purposes only.
12 Meanwhile, on 21 April 2021, the applicant had submitted another claim under Article 90(1) of the Staff Regulations, seeking provision of a ‘home internet plan for professional purposes’. The Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) rejected it by a decision of 14 July 2021 on the ground that it had the same subject matter as the applicant’s complaint of 8 January 2021, which had already been rejected by the decision rejecting the complaint.
13 Moreover, on 3 May 2021, the applicant informed her head of unit by email that, ‘without internet’, she could not access the server and the computer tools, but that she was available at home to respond to any instructions and could be contacted by telephone. In the light of that email, the Directorate-General for Human Resources and Security informed the applicant, on the following 19 May, that she was considered to have been absent without leave since 3 May 2021 and that one day was deducted from her annual leave. On 16 July 2021, the applicant lodged a complaint against that decision.
II. Forms of order sought by the parties
14 The applicant claims that the Court should:
– principally, declare that Article 71 of the Staff Regulations, on which the decision rejecting the complaint is based, is unlawful;
– in the alternative, annul the decision rejecting the complaint;
– and consequently, order the Commission:
– to pay her the sum of EUR 51.89 by way of reimbursement of professional expenses;
– to provide her, for teleworking, with internet access for professional use by whatever means;
– to pay her the sum of EUR 10 000 to compensate for the damage suffered;
– order the Commission to pay the costs.
15 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
16 The European Parliament and the Council of the European Union claim that the Court should dismiss the action.
III. Law
A. The first head of claim
17 By her first head of claim, put forward as the principal issue, the applicant asks the Court to declare that Article 71 of the Staff Regulations is unlawful. To that end, she raises a plea of illegality against that article, which provides that an official shall be entitled to reimbursement of expenses occurred by him or her inter alia in the course of the performance of his or her duties, as provided in Annex VII to those regulations.
18 However, as a claim which is separate from the other heads of claim, this head of claim must be rejected for lack of jurisdiction, since Article 270 TFEU and Articles 90 and 91 of the Staff Regulations do not confer on the EU Courts jurisdiction to make legal statements (see, to that effect, judgment of 16 January 2018, SE v Council, T‑231/17, not published, EU:T:2018:3, paragraph 63 and the case-law cited).
B. The second head of claim
1. The subject matter and admissibility of the second head of claim
19 By her second head of claim, the applicant asks the Court to annul the decision rejecting the complaint.
20 However, as the Commission points out, according to settled case-law, claims for annulment formally brought against a decision to reject a complaint have the effect, where that decision lacks any independent content, of bringing before the Court the act against which the complaint was submitted (see judgment of 13 January 2021, ZR v EUIPO, T‑610/18, not published, EU:T:2021:5, paragraph 24 and the case-law cited).
21 In the present case, it should be noted that the decision rejecting the complaint does indeed lack independent content and that there is therefore no need to adjudicate specifically on that question. It is true that the Appointing Authority adjudicated, in that decision, on the claim for reimbursement of the cost exceeding the applicant’s flat rate and of provision of a means for her to access the internet. However, the OIB, in its decision of 18 December 2020, had itself already adopted a position on the reimbursement in question and on the granting of equipment consisting of a 4G USB dongle, which the applicant had raised in her email of 7 December 2020 (see paragraph 8 above).
22 Moreover, it should be borne in mind that, by her second head of claim, the applicant seeks annulment of the decision of the OIB of 18 December 2020 rejecting her claim for, first, reimbursement of the sum of EUR 51.89 presented as professional expenses resulting from the teleworking arrangements which had been imposed on her, and, secondly, provision of a 4G USB dongle (‘the contested decision’).
23 Furthermore, the Commission maintains that the second head of claim is inadmissible in that it seeks annulment of the PMO decision of 14 July 2021 refusing to allow the applicant’s claim of 21 April 2021for an internet access plan for professional use, since it was not preceded by a complaint.
24 However, as is apparent from paragraph 21 above, the applicant had already made, in essence, that claim for access and the OIB, in the contested decision, and subsequently the Appointing Authority, in the decision rejecting the complaint, adjudicated on it. The PMO decision of 14 July 2021 (see paragraph 12 above) is, moreover, based on the redundant nature of the claim of 21 April 2021.
25 In those circumstances, the second head of claim should be interpreted as seeking the annulment of the contested decision, including its refusal to grant the applicant internet access for professional use. Therefore, this head of claim is admissible.
2. The pleas relied on in support of the second head of claim
26 In support of her claim for annulment of the contested decision, the applicant raises five pleas in law, relating to (1) a plea of illegality against Article 71 of and Annex VII to the Staff Regulations, (2) in the alternative, infringement of that article, (3) failure to have regard for the welfare of officials and for the right to good administration, (4) infringement of the principle of non-discrimination and (5) infringement of Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
(a) The first plea, relating to a plea of illegality against Article 71 of and Annex VII to the Staff Regulations
(1) The admissibility of the first plea
27 The Parliament raises two objections of inadmissibility against the plea of illegality against Article 71 of and Annex VII to the Staff Regulations. The first relates to the imprecision of the first plea and the second to disregard for the incidental nature of pleas of illegality.
28 It should be pointed out, in that regard, that, under Article 142(1) of the Rules of Procedure of the General Court, the intervention shall be limited to supporting, in whole or in part, the form of order sought by one the main parties. Moreover, under Article 142(3) of those rules, the intervener must accept the case as he finds it the time of his intervention.
29 It is apparent from those provisions that the party granted leave to intervene in a dispute in support of the defendant has no standing to raise an objection of inadmissibility not set out in the form of order sought by the defendant (see judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 67 and the case-law cited).
30 It follows that the Parliament has no standing to raise the two objections of inadmissibility referred to in paragraph 27 above, so that the Court is not required to respond to them specifically as to the substance.
31 However, since, under Article 129 of the Rules of Procedure, the Court may at any time of its own motion, after hearing the main parties, consider whether there exists any absolute bar to proceeding with a case, it is necessary, in the present case, in the interests of sound administration of justice, to examine those objections of inadmissibility involving public policy considerations (see, to that effect, judgments of 24 March 1993, CIRFS and Others v Commission, C‑313/90, EU:C:1993:111, paragraph 23, and of 19 September 2018, HH Ferries and Others v Commission, T‑68/15, EU:T:2018:563, paragraph 41 (not published)).
(i) The first objection of inadmissibility, relating to the imprecision of the first plea
32 In its statement in intervention, the Parliament claims that the plea of illegality raised by the applicant is imprecise, in so far as it alleges only that, by not laying down detailed rules for fulfilling duties under the teleworking arrangements, for the purposes of the possible reimbursement of expenses, Article 71 of the Staff Regulations, read in conjunction with Annex VII thereto, is ‘particularly problematic’. The Parliament finds it difficult to ascertain of what that problem consists and of what illegality the applicant is complaining.
33 In that regard, it should be pointed out that, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, every application must state the subject matter of the proceedings and a summary of the pleas in law relied on.
34 In order to guarantee legal certainty and the sound administration of justice, the summary of the pleas in law of the applicant must be sufficiently clear and precise to enable the defendant to prepare its defence and the competent court to rule on the action (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 41).
35 In the present case, in her plea of illegality, the applicant criticises Article 71 of and Annex VII to the Staff Regulations in that those provisions do not provide for reimbursement of the professional expenses which Commission officials are forced to incur in connection with teleworking. The applicant infers, first, that those provisions are inappropriate for the economic and health situation resulting from the COVID-19 pandemic and, secondly, that that shortcoming gives a financial advantage to a certain category of officials.
36 In that context, it should be pointed out that the statement of pleas in the application need not conform with the terminology and layout of the Rules of Procedure, in particular of Article 76(d) thereof. It follows that it may be expressed in terms of the substance of those pleas rather than of their legal classification, provided that those pleas are set out with sufficient clarity (see judgment of 29 September 2021, Enosi Mastichoparagogon Chiou v EUIPO (MASTIHACARE), T‑60/20, not published, EU:T:2021:629, paragraph 50 and the case-law cited).
37 In the light of that case-law, it must be held that the first plea, alleging the illegality of Article 71 of and Annex VII to the Staff Regulations, is sufficiently precise in that its substance consists of the complaint, by means of the first argument, that those provisions are inappropriate for the circumstances connected with the COVID-19 pandemic crisis. Furthermore, the Commission, the Council, and even the Parliament were able to respond to the plea of illegality at issue as to the merits.
38 On the other hand, the first plea lacks precision in so far as concerns the applicant’s second argument, alleging that officials were not accorded equal treatment.
39 The application must specify the nature of the grounds on which it is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v Council, T‑444/11, EU:T:2014:773, paragraph 93 and the case-law cited).
40 Also, in the case of a plea alleging infringement of the principle of equal treatment, it is apparent from settled case-law law that that principle requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such different treatment is objectively justified (see judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect), C‑205/20, EU:C:2022:168, paragraphs 54 and 55 and the case-law cited).
41 Furthermore, when provisions of the Staff Regulations such as those at issue are involved and in the light of the broad discretion which the EU legislature enjoys, as in the present case, there is an infringement of the principle of equal treatment only where the legislature makes a distinction which is arbitrary or manifestly inappropriate in relation to the objective pursued by the legislation in question (see order of 29 November 2021, Bergallou v Council, T‑521/16, not published, EU:T:2021:854, paragraph 80 and the case-law cited).
42 Therefore, in the context of a plea alleging an infringement of the principle of equal treatment, in accordance with the general rules governing the burden of proof and the presumption of the legality of the acts of the European Union, it is, in principle, for the applicant to produce evidence to show that she has been treated differently from other persons in a comparable situation (see, to that effect, judgments of 30 May 2013, Morte Navarro v Parliament, T‑280/09, not published, EU:T:2013:279, paragraph 48, and of 10 June 2020, Spliethoff’s Bevrachtingskantoor v Commission, T‑564/15 RENV, not published, EU:T:2020:252, paragraph 97) and, since the legislature enjoys a broad discretion, that that distinction is arbitrary or manifestly inappropriate.
43 However, in the present case, the applicant failed to identify, in the first plea contained in the application, either the financial advantages she seeks, or the categories of official who ought to be compared, or, much less, the evidence which shows that the alleged distinction is arbitrary or manifestly inappropriate, in order to satisfy the requirements of Article 76(d) of the Rules of Procedure in the context of a plea alleging infringement of the principle of equal treatment by Article 71 of and Annex VII to the Staff Regulations.
44 It is true that the applicant invokes Article 1d(5) of the Staff Regulations, which provides for the burden of proof to be shifted, in that the onus is on the institution to prove that there has been no breach of the principle of equal treatment where officials, who consider themselves wronged because that principle has not been applied to them, establish facts from which it may be presumed that there has been direct or indirect discrimination.
45 However, the Council rightly points out that that provision is not intended to apply when what is at issue is an alleged infringement of the principle of equal treatment by the Staff Regulations themselves, since it is apparent from paragraph 1 of Article 1d, to which paragraph 5 refers, that the failure to observe the principle of equal treatment referred to is that which stems from ‘the application’ of the Staff Regulations.
46 It is indeed the case that, in her application, the applicant raises another plea, the fourth, also alleging infringement of the principle of non-discrimination, and that, in it, she criticises the difference in treatment resulting from the fact that officials who cannot meet in advance the costs of purchasing office equipment, which are reimbursable under the Guidelines on teleworking, are at a disadvantage compared to the others, even though the latter also incur professional expenses.
47 However, the Court cannot be obliged, due to a lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary to the principle of the sound administration of justice, to the principle that the subject matter of an action is delimited by the parties and to the defendant’s rights of defence (judgment of 2 April 2019, Fleig v EEAS, T‑492/17, EU:T:2019:211, paragraph 44 (not published)).
48 Lastly, in her reply and in her observations on the Parliament’s statement in intervention, the applicant referred to the measures adopted by that institution and by European Economic and Social Committee (EESC) for their respective officials, and to the advantages enjoyed by Commission officials who have a service telephone.
49 However, in reviewing the compliance of the application with the requirements of Article 76 of the Rules of Procedure, the contents of the reply or other subsequent pleadings are irrelevant. In particular, the admissibility, permitted by case-law, of pleas and arguments put forward in the reply as amplifications of pleas in the application cannot be raised with the aim of compensating for a failure, arising during the initiation of the action, to comply with the requirements for that article, without rendering that provision devoid of purpose (judgment of 12 December 2018, Deutsche Umwelthilfe v Commission, T‑498/14, not published, EU:T:2018:913, paragraph 49). It follows that the arguments raised in that context are out of time and, if, as in the present case, without justification, are inadmissible.
50 It must therefore be held that the first plea in the application enabled the Commission and the interveners supporting it to defend themselves and the Court to rule on that plea, but only in so far as the applicant complains therein of the inappropriateness of Article 71 of and Annex VII to the Staff Regulations for the circumstances arising from the COVID-19 pandemic.
(ii) Concerning the second objection of inadmissibility, alleging disregard for the incidental nature of pleas of illegality
51 The Parliament points out that the pleas which are not based on the plea of illegality involving Article 71 of and Annex VII to the Staff Regulations are only presented in the alternative and that that approach infringes the incidental nature of a plea of illegality.
52 Nevertheless, it should be borne in mind that the incidental nature of pleas of illegality means that the possibility of invoking the inapplicability of a measure of general application pursuant to Article 277 TFEU does not constitute an independent right of action and may not be sought where there is no right to bring the main action (see order of 16 May 2019, ITSA v Commission, T‑396/18, not published, EU:T:2019:342, paragraph 39 and the case-law cited). On the other hand, there is nothing, in that article, which prevents the plea of illegality being raised as the main argument in an action, the other pleas being raised only in the alternative.
(iii) Conclusion regarding the admissibility of the first plea
53 In the light of all the above, the first plea is inadmissible in that the applicant invokes therein the allegedly discriminatory nature of Article 71 of and Annex VII to the Staff Regulations. It is, on the other hand, admissible in so far as she alleges that those provisions are inappropriate having regard to the circumstances arising from the COVID-19 pandemic.
(2) The merits of the first plea
54 As has been stated in paragraph 35 above, the applicant alleges that Article 71 of and Annex VII to the Staff Regulations are inappropriate for the global economic and health situation arising from the COVID-19 pandemic, in that those provisions do not provide for the reimbursement of professional expenses which officials are required to pay in advance while teleworking.
55 It should be noted, however, that the legislature could not foresee the COVID-19 pandemic and the necessity, in order to deal with it, of introducing teleworking arrangements when it last amended the substance of the Staff Regulations by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15). Moreover, the applicant admits this in her reply.
56 Nevertheless, on page 5 of its Communication COM(2010) 543 final of 8 October 2010 to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, entitled ‘Smart Regulation in the European Union’, the Commission had inter alia emphasised the advantages of ex post evaluations of legislation as an integral part of ‘smart regulation’. Thus, it considered that ‘fitness checks’ would make it possible to assess whether the regulatory framework for a policy area is fit for purpose, and, if not, what should be changed, the aim being, inter alia, to identify excessive burdens, inconsistencies and obsolete or ineffective measures.
57 Similarly, on pages 9 and 11 of its Communication COM(2019) 178 final of 15 April 2019 to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, entitled ‘Better regulation: taking stock and sustaining our commitment’, the Commission pointed out that ex post evaluation is one of the key pillars of better regulation, in that it makes it possible to check whether legislation remains relevant, fit for purpose and able to deliver the results that the legislature intended and the public expected.
58 Above all, according to the case-law, it is the duty of every legislature, first, to check, if not constantly at least periodically, that the rules which it has imposed still meet the needs for which they were conceived and, secondly, to amend or even repeal the rules which have ceased to have any justification and are thus no longer appropriate in the new context in which they must produce their effects (see judgment of 5 December 2012, Lebedef and Others v Commission, F‑110/11, EU:F:2012:174, paragraph 40 and the Opinions cited; see also, to that effect, judgment of 6 October 2015, Schrems, C‑362/14, EU:C:2015:650, paragraph 76).
59 The legislature nevertheless has a wide margin of discretion when verifying whether the rules are appropriate to meet those needs and when amending, if necessary, the Staff Regulations and modifying the rights and obligations of officials (see, to that effect, judgment of 11 July 2007, Wils v Parliament, F‑105/05, EU:F:2007:128, paragraph 126).
60 However, the applicant fails to provide arguments, much less sufficient evidence, which, in the light of that wide margin of discretion of the legislature, clearly show that Article 71 of and Annex VII to the Staff Regulations are inappropriate, as she claims, and that the legislature has any obligation to amend those provisions.
61 Moreover, even if reimbursement for professional expenses arising from teleworking arrangements is required, it must be borne in mind that, under Article 336 TFEU, the amendment of the Staff Regulations involves the adoption of a regulation by the Parliament and the Council, ruling in accordance with the ordinary legislative procedure described in Article 294 of that treaty, after consulting the other institutions concerned. Moreover, Article 294(2) TFEU provides that the legislative procedure begins by submission of a Commission proposal. The preparation of such a proposal itself requires several stages, independently of the abovementioned consultations.
62 In the light of the complexity of that process, the subsequent long periods needed for implementing the improvements to the legislation and the context of the urgent restrictions needed to deal with the COVID-19 pandemic at the time the contested decision was adopted, which must be taken into consideration in assessing its legality, the EU institutions cannot be criticised for not having amended the Staff Regulations during that pandemic.
63 That criticism cannot be levelled at the legislature particularly because account should be taken of the emergency measures adopted by the EU institutions and other bodies. Accordingly, the Commission adopted without delay the Guidelines on teleworking, which provided for the reimbursement, for its staff, of the cost of purchasing office equipment.
64 It is true that the applicant maintains, in her fourth plea, that the guidelines are discriminatory. However, that plea must be rejected as is apparent from paragraphs 99 to 108 below.
65 In those circumstances, the first plea, relating to a plea of illegality brought against Article 71 of and Annex VII to the Staff Regulations, must be rejected.
(b) The second plea alleging, in the alternative, infringement of Article 71 of the Staff Regulations
66 The applicant maintains that, by justifying the decision rejecting the complaint on the ground that Article 71 of and Annex VII to the Staff Regulations do not provide for reimbursement of internet and telephone expenses, the Appointing Authority disregarded the aim of those provisions, which is to prevent officials bearing, on their own, professional expenses and ignored the fact that those provisions are not restrictive, as is proved by the decision of the Secretary General of the EESC of 9 June 2021 granting the staff of that Committee a monthly allowance to cover the costs generated by teleworking (‘the EESC decision of 9 June 2021’).
67 However, although Article 71 of the Staff Regulations is indeed designed to prevent officials bearing, on their own, the expenses connected with the performance of their duties (judgment of 18 November 2015, FH v Parliament, F‑26/15, EU:F:2015:137, paragraph 32), it is, according to its wording, under the conditions set out in Annex VII to the Staff Regulations that reimbursement of expenses is due. That annex exhaustively lists the reimbursable financial activities. Therefore, the decision rejecting the complaint could validly be based on the fact, inter alia, that Article 71 of the Staff Regulations did not permit the applicant’s claims to be upheld.
68 Moreover, Article 71 of and Annex VII to the Staff Regulations, like any provision of EU law upholding financial claims, must be interpreted strictly (see judgment of 18 July 2017, Commission v RN, T‑695/16 P, not published, EU:T:2017:520, paragraph 54 and the case-law cited).
69 In particular, the alleged ‘teleological interpretation’, to which, according to the applicant, Article 71 should be subject, is contrary to what the legislature intended. By its Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1), the legislature in fact sought to rationalise the various grants and allowances existing at the time, as pointed out in recital 26 of that regulation and as noted by the Council.
70 Moreover, contrary to what the applicant maintains, neither the EESC decision of 9 June 2021 nor, furthermore, the Guidelines on teleworking adopted by the Commission contradict the restrictive nature of Article 71 of and Annex VII to the Staff Regulations.
71 It is true that the principle of unicity of the civil service, as stated in Article 9(3) of the Treaty of Amsterdam, means that all the officials of all the European Union institutions are subject to a single set of Staff Regulations. Nevertheless, that principle does not mean that the institutions have to make identical use of the discretion accorded to them under the Staff Regulations. On the contrary, in the management of their staff, the institutions enjoy, as employers, a principle of autonomy (judgments of 18 September 2013, Scheidemann v Commission, F‑76/12, EU:F:2013:132, paragraph 26, and of 21 January 2014, Van Asbroeck v Parliament, F‑102/12, EU:F:2014:4, paragraph 29).
72 It follows that, although the officials and agents of the European Union must have Article 71 of and Annex VII to the Staff Regulations applied to them in the same way, the principle of autonomy may reasonably justify the differences between the limited measures adopted by the institutions, bodies, offices and agencies of the European Union in order to avoid the members of their staff bearing, on their own, the expenses occurred in the performance of their duties while teleworking. That consideration is all the more relevant since those measures had to be adopted urgently in the exceptional circumstances connected with the comprehensive mandatory teleworking arrangements imposed by Member States in order to address the COVID-19 pandemic.
73 It follows that the second plea, alleging infringement of Article 71 of the Staff Regulations, must be rejected.
(c) The third plea, alleging failure to have regard for the welfare of officials and for the right to sound administration
74 The applicant claims that, by adopting the decision rejecting the complaint, the Appointing Authority failed to have regard for the welfare of officials and for the right to sound administration inasmuch as the increase in her internet data usage is attributable to the installation of various professional programs and to online training and in that the Commission denied the economic impact of teleworking on her personal situation, so that it thus altered the balance of her relationship with the European Union.
75 A particular consequence of the duty to have regard for the welfare of officials is that when the authority takes a decision concerning the situation of a member of staff, it should take into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service but also those of the official concerned (judgments of 28 May 1980, Kuhner v Commission, 33/79 and 75/79, EU:C:1980:139, paragraph 22, and of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 105). It is therefore a specific expression of the principle of sound administration and especially of the obligation of the authority to undertake a comprehensive and detailed examination of the situation before taking a decision (see, to that effect, judgment of 25 May 2016, GW v Commission, F‑111/15, EU:F:2016:122, paragraph 40).
76 As the applicant suggests, the duty to have regard for the welfare of officials reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the public authority and employees in the public sector (judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 60). However, as an expression of that balance, the duty to have regard for the welfare of officials cannot, under any circumstances, compel the administration to act against the applicable provisions and, in particular, cannot lead it to give a European Union provision an effect which would go against the clear and precise terms of that provision (see, to that effect, judgments of 2 March 2004, Di Marzio v Commission, T‑14/03, EU:T:2004:59, paragraph 100, and of 29 April 2020, CV and Others v Commission, T‑496/19, not published, EU:T:2020:163, paragraph 50).
77 Therefore, since the obligation to reimburse internet data usage expenses which are attributable to teleworking would be contrary to the restrictive nature of Article 71 of and Annex VII to the Staff Regulations (see paragraph 67 above), the applicant cannot invoke the duty to have regard for the welfare of officials in order to obtain that allowance.
78 Moreover, the EU legislature has already taken into account the situation of certain officials, including the applicant, by granting them a tax abatement of 10% to cover professional expenses, which is provided for in Article 3(4) of Regulation No 260/68.
79 Furthermore, the Commission has itself demonstrated a regard for the welfare of officials by providing, in the Guidelines on teleworking, for the reimbursement, under certain conditions, of the costs of acquiring office equipment.
80 Subject to the question of respect for the principle of equal treatment which will be examined in connection with the fourth plea, the fact that that form of intervention does not suit the applicant is insufficient for a finding that there has been an infringement of the duty to have regard for the welfare of officials.
81 In view of the broad discretion enjoyed by the administration in the management of its staff, the EU Courts may examine, in respect of the duty to have regard for the welfare of officials, only the question of whether the authority remained within reasonable limits and did not use its power of assessment in a manifestly erroneous way (see, by analogy, judgment of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraphs 102 and 103).
82 It should be noted that it is apparent from the Guidelines on teleworking that the Commission opted to reimburse office equipment in order that its officials and agents should have working conditions in accordance with the appropriate health and safety rules equivalent to those of an office, which is clearly the expression of regard for the welfare of officials.
83 For the sake of completeness, it should be pointed out that, as regards the reimbursement of alleged expenses, it has been held that, under the rules governing the burden of proof, in the absence of a provision from which it is apparent that expenses are presumed to have been incurred, it is for the official to adduce evidence that he or she has actually borne costs directly linked to his or her duties (see, by analogy, judgment of 11 July 2000, Skrzypek v Commission, T‑134/99, EU:T:2000:184, paragraph 81).
84 However, the applicant merely states that the increase in her internet data usage during the month of October 2020 and the exceeding of the 100 GB limit by 137.434 GB which culminated in extra billing are the result of the installation and use for professional purposes of programs such as Skype for business, Webex or Teams, and of online training programs.
85 However, the fact that most of the applicant’s internet data usage during the month of October 2020 was concentrated over four working days is not enough, in itself, to prove that the amount exceeding the monthly flat rate is due to professional use. Evidence of the professional nature of the expenses in question is particularly lacking since it is apparent from the documents provided by the applicant herself that at no other time while teleworking was the rule, did she have internet data usage exceeding the limit of 100 GB corresponding to her flat rate.
86 Therefore, the information provided by the applicant does not even establish that exceeding her internet usage flat rate is due to teleworking, and even less that, by refusing to take it into account, the Commission infringed its duty to have regard for the welfare of officials and the principle of sound administration.
87 Lastly, although it is not disputed that the applicant’s telephone provider invoiced her an amount of EUR 1.89 for two telephone calls in September 2020 to the help-desk and to the Commission’s Directorate-General for Informatics, the refusal to reimburse that sum cannot be regarded as an infringement of the duty to have regard for the welfare of officials either, in the light of the modest sum claimed and of the measures described in paragraphs 78 and 79 above.
88 The third plea must therefore be rejected.
(d) The fourth plea, alleging infringement of the principle of non-discrimination
89 The applicant claims that the Appointing Authority justified the decision rejecting the complaint by the Guidelines on teleworking. Those guidelines give rise to a first discrimination between Commission officials who have sufficient financial resources to pay in advance the cost of office equipment and those who do not have those resources and who cannot obtain the reimbursement of other professional expenses. They even generate a second discrimination in view of the advantage gained by the EESC officials and agents from the EESC decision of 9 June 2021.
(1) The admissibility of the fourth plea
90 The Commission maintains that the fourth plea is inadmissible because it was not raised in the complaint.
91 It should be pointed out, in that regard, that Articles 90 and 91 of the Staff Regulations make the admissibility of an action brought by an official against the institution to which he or she belongs subject to the condition that the prior administrative procedure has been properly conducted.
92 In that connection, the rule of harmony between a complaint and the application which follows, to which the Commission refers, requires that, for a plea raised before the EU Courts to be admissible, it must already have been raised in the pre-litigation procedure, enabling the Appointing Authority to know the criticisms made by the person concerned of the contested decision (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 71 and the case-law cited).
93 In the present case, in her complaint, the applicant alleged an infringement of the principle of equal treatment. She compared, with regard to telephone communications, the ‘upper hierarchy’, who have service telephones, with the other officials, who have to pay for their professional communications and, with regard to internet data, those who, according to their contracts with their access providers, have a large amount of data and a high processing speed with those who do not have such advantages.
94 Thus, the infringement of the principle of equal treatment was indeed raised in the complaint, but from a different perspective from that forming the basis of the fourth plea in the application.
95 However, it should be pointed out that it is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject matter of the complaint. Therefore, heads of claim may be developed before the European Union Courts by the presentation of pleas in law and arguments which do not necessarily appear in the complaint, provided that they are closely linked to it (see, to that effect, judgments of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraphs 73 and 76, and of 2 March 2017, DI v EASO, T‑730/15 P, EU:T:2017:138, paragraphs 65 and 66).
96 In those circumstances, it must be held that the fact that the applicant expressly referred, for the first time, in her application to a difference of treatment between those who have and those who do not have the financial means to pay in advance for office equipment changes neither the legal basis nor the subject matter of the complaint.
97 Moreover, the applicant cannot be criticised for not having invoked in her complaint the discrimination between herself, as a Commission official, and the agents of the EESC, since the EESC decision of 9 June 2021 was taken after the end of the pre-litigation stage.
98 It follows that the fourth plea is admissible.
(2) The merits of the fourth plea
99 As stated in paragraph 40 above, the principle of equal treatment requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such different treatment is objectively justified.
100 In the present case, first, the applicant criticises the Commission for not having treated differently officials who do not have the means of purchasing office equipment by offering them the possibility of obtaining reimbursement of their telephone expenses and their internet data usage.
101 However, the applicant, who cannot plead on behalf of other officials, who is in grade AST 4 and who was entitled to the tax abatement referred to in paragraph 78 above, produces no evidence to show that she did not have the resources to pay the office equipment costs in advance and that she was therefore in the unfavourable situation of which she complains. Therefore, she fails to prove that she was treated like the officials who are able to make that advance payment, although she was in a different financial situation.
102 Furthermore, even if such difference in treatment were established, the applicant does not in any event show that the difference in question is arbitrary or manifestly inappropriate, within the meaning of the case-law cited in paragraph 41 above.
103 On the contrary, as stated in the Guidelines on teleworking, the measure allowing for reimbursement of the expenses linked to the purchase of office equipment was justified by the need, in line with Article 1e(2) of the Staff Regulations, to help teleworkers perform their tasks in working conditions complying with appropriate health and safety standards. Moreover, and as the Commission suggests, it was also explained by the desire to reimburse only expenses that were objectively linked with the performance of duties.
104 In the second place, the applicant claims to have suffered discrimination on the grounds that the officials and staff of the EESC are treated more favourably.
105 Nevertheless, it should be pointed out (see paragraph 71 above) that the fact that all officials are subject to a single set of Staff Regulations does not mean that the institutions have to make identical use of the discretion accorded to them under the Staff Regulations. On the contrary, the institutions enjoy a principle of autonomy as employers (see, to that effect, judgments of 16 September 1997, Gimenez v Committee of the Regions, T‑220/95, EU:T:1997:130, paragraph 72, and of 21 January 2014, Van Asbroeck v Parliament, F‑102/12, EU:F:2014:4, paragraph 29).
106 In the present case, the Guidelines on teleworking adopted by the Commission and the EESC decision of 9 June 2021 reflect the principle of autonomy with regard to how their officials are treated in the exceptional situation connected with the COVID-19 pandemic (see paragraph 72 above).
107 Consequently and in any event, those differences between the measures adopted by the institutions, bodies, offices and agencies of the European Union cannot be invoked in support of a plea alleging infringement of the principle of equal treatment (see, to that effect, judgment of 14 February 2017, Schönberger v Court of Auditors, T‑688/15 P, not published, EU:T:2017:76, paragraph 187).
108 It follows from all the foregoing that the fourth plea must be rejected.
(e) The fifth plea, alleging infringement of Article 7 of the Charter
109 The applicant claims that she was forced to ask the Commission to grant internet access to offset the costs incurred by the introduction of mandatory teleworking and that the PMO decision of 14 July 2021 rejecting her request for internet access constitutes an interference in her right to respect for her private life and her home.
110 Under Article 7 of the Charter, everyone has the right to respect for his or her private and family life, home and communications. However, the right enshrined in that article is not an absolute right. It may be subject to limitations in accordance with Article 52(1) of the Charter (see, to that effect, judgment of 16 July 2020, Facebook Ireland and Schrems, C‑311/18, EU:C:2020:559, paragraphs 172 and 174 and the case-law cited).
111 It should be noted, in that regard, that, where an individual measure is at issue, as in the present case, whether or not there is a limitation within the meaning of Article 52(1) of the Charter must be assessed in the light of the actual impact on the person concerned (see, to that effect, judgment of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraphs 52 to 54). Moreover, there can be no interference in the exercise of a right when the relationship between that right and the measure at issue is too indirect or random to be taken into consideration (see, to that effect, judgment of 4 December 2018, Janoha and Others v Commission, T‑517/16, not published, EU:T:2018:874, paragraphs 72 and 73).
112 In the present case, the applicant claims only that, in order to perform her duties via teleworking with her own internet connection, she has had to infringe the contract which she signed in her private capacity with VOO and under which her internet access was limited to private and personal use.
113 However, the applicant produces no evidence from which it may be inferred that VOO interprets her contract in such a way that it would have prohibited her from personally using her connection to perform her duties and that that prohibition inevitably has repercussions on her right to respect for her private life and her home. The Commission points out in that regard that it was unaware of any complaint from access providers for the use, by their clients, of an internet connection in the context of teleworking and the applicant produces no evidence to contradict that statement.
114 It is true that the applicant claims that another access provider has implemented a program enabling employers to intervene financially in the internet costs of their employees in order to cover their teleworking periods.
115 However, the Commission rightly points out that that program is not presented as a ‘gift’ which employers offer to their employees. It is therefore merely an option and not an arrangement which, according to that provider, is essential for its clients to fulfil their contractual obligations.
116 In those circumstances, the contested decision cannot be regarded as constituting a limitation on the applicant’s right to respect for her private life and her home.
117 The fifth plea must therefore be rejected, and, consequently, the second head of claim in its entirety.
C. The third head of claim
118 By her third head of claim, the applicant asks the Court to order the Commission to pay her the sum of EUR 51.89 by way of reimbursement of her professional expenses, to grant her, in connection with teleworking, internet access for professional use and to pay her the sum of EUR 10 000 in compensation for the damage suffered.
119 As the applicant makes those requests ‘as a consequence’ of the annulment of the contested decision, it need only be stated that, as the second head of claim is rejected, the third must also be rejected.
120 Also to be rejected is the request for compensation for the damage which the applicant allegedly suffered owing to the repeated refusals to grant her internet access, the fear of having again to bear professional expenses on her own and the fact that she had to leave the Commission in order not to be penalised with regard to her grading and promotion.
121 It is important to point out, in that regard, that, according to the case-law, any damage must be actual and certain and that purely hypothetical and indeterminate damage does not give the right to compensation (judgment of 3 December 2015, CN v Parliament, T‑343/13, EU:T:2015:926, paragraph 118). It is for the party seeking to establish the European Union’s liability to produce proof as to the existence or extent of such damage. That obligation is imposed even in the case of non-material damage. A mere claim which is unsupported by any evidence is insufficient (see, to that effect, judgment of 3 December 2015, CN v Parliament, T‑343/13, EU:T:2015:926, paragraphs 119 and 121).
122 In the present case, in order to establish that she suffered non-material damage, the applicant produced a medical certificate declaring her to be unfit for work from 14.30 on 22 December 2020 until 24 December 2020.
123 However, that medical certificate is a one-off, brief and, in particular, contains no case history. Moreover, it is not corroborated by any other document which would make it possible to attribute the applicant’s short cessation of work to the alleged ‘psychological and physical impact of the Commission’s refusal to provide the internet plan necessary for carrying out her work’.
124 Nor does the applicant adduce evidence in support of her statement that she was forced to leave the Commission in order not to be penalised with regard to her grading and promotion. In that regard, the mere fact that the Commission considered that her absence on 3 May 2021 was unjustified and accordingly deducted one day from her annual leave (see paragraph 13 above) does not constitute, in that regard, even prima facie evidence.
125 Lastly, it is futile for the applicant to seek compensation for the non-material damage suffered owing to the loss of that day’s leave for being absent without leave when she refused to use her private internet access for professional purposes.
126 As the Commission points out, that claim is inadmissible. It was made for the first time in the application and was not the subject matter of a comprehensive pre-litigation procedure in accordance with Articles 90 and 91 of the Staff Regulations, in a context in which the direct cause of the alleged damage is the result not of the contested decision, but of the decision of the Directorate-General for Human Resources and Security of 19 May 2021.
127 Therefore, the third head of claim must be rejected.
128 In the light of all the foregoing, the action itself must be dismissed in its entirety.
IV. Costs
129 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
130 In the present case, since the applicant has been unsuccessful, she must be ordered to bear her own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
131 Pursuant to Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings shall bear their own costs. The Parliament and the Council shall therefore bear their own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders OE to pay her own costs and to pay those incurred by the European Commission;
3. Orders the European Parliament and the Council of the European Union to bear their own costs.
Delivered in open court in Luxembourg on 7 September 2022.
[Signatures]