JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
25 October 2018 (*)
(Appeal — Civil service — Temporary staff — Transfer of CEPOL’s seat in Bramshill (United Kingdom) to Budapest (Hungary) — Reassignment of staff — Act not open to challenge — Inadmissibility of the action before the Civil Service Tribunal)
In Case T‑334/16 P,
APPEAL brought against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 11 April 2016, FN and Others v CEPOL (F‑41/15 DISS II, EU:F:2016:70), and seeking to have that judgment set aside,
FN, member of the temporary staff of the European Union Agency for Law Enforcement Training,
FB, member of the temporary staff of the European Union Agency for Law Enforcement Training,
FQ, member of the temporary staff of the European Union Agency for Law Enforcement Training,
represented by L. Levi and A. Blot, lawyers,
appellants,
the other party to the proceedings being
European Union Agency for Law Enforcement Training (CEPOL), represented initially by F. Bánfi and R. Woldhuis, and subsequently by R. Woldhuis and D. Schroeder, acting as Agents, and by B. Wägenbaur, lawyer,
defendant at first instance,
THE GENERAL COURT (Appeal Chamber),
composed of M. Jaeger, President, M. van der Woude (Rapporteur), S. Frimodt Nielsen, H. Kanninen and D. Gratsias, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written procedure and further to the hearing on 16 January 2018,
gives the following
Judgment
1 By their appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellants, FN, FP and FQ, ask the General Court to set aside the judgment of the European Union Civil Service Tribunal (Third Chamber) of 11 April 2016, FN and Others v CEPOL (F‑41/15 DISS II, ‘the judgment under appeal’, EU:F:2016:70), by which the Tribunal dismissed their action for, first, annulment of Decision No 17/2014/DIR of the Director of the European Police Training College (CEPOL) (now European Union Agency for Law Enforcement Training) of 23 May 2014 concerning the relocation of CEPOL to Budapest (Hungary) (‘the contested decision’) and, so far as necessary, the decisions of CEPOL of 28 November 2014 rejecting their complaints against the contested decision (‘the decisions rejecting the complaints’), as well as, second, compensation from CEPOL for the damage allegedly suffered.
Background to the dispute
2 The factual background to the dispute is set out in the submissions of the parties before the Tribunal and in paragraphs 7 to 38 of the judgment under appeal. They may, for the purposes of the present judgment, be summarised as follows.
3 On 22 December 2000, the Council of the European Union adopted Decision 2000/820/JHA of 22 December 2000 establishing CEPOL (OJ 2000 L 336, p. 1).
4 By decision 2004/97/EC, Euratom 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).
5 On 20 September 2005, the Council adopted Decision 2005/681/JHA establishing CEPOL and repealing Decision 2000/820 (OJ 2005 L 256, p. 63). Article 4 of Decision 2005/681 provides that ‘the seat of CEPOL shall be in Bramshill, United Kingdom’.
6 Between 2009 and 2012, CEPOL engaged the appellants as members of the temporary staff under Article 2 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’). Article 2(2) of their respective contracts of employment stipulated that ‘the place of employment [was] the official seat of CEPOL in Bramshill, United Kingdom’.
7 On 12 December 2012, the Home Secretary of the United Kingdom of Great Britain and Northern Ireland informed the Director of CEPOL of the Home Office’s decision to close the national police training site located at Bramshill, which also housed CEPOL’s premises. The Home Secretary indicated that that site would be sold between then and 2014 and 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 that agency with the European Police Office (Europol). She stated that the adoption of that new regulation 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.
8 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 CEPOL would continue to be a fully-fledged agency of the European Union and would be hosted in Budapest once it had left the Bramshill site.
9 On 15 May 2014, the European Parliament and the Council adopted Regulation (EU) No 543/2014 amending Decision 2005/681 (OJ 2014 L 163, p. 5). Pursuant to Article 1 of that regulation, Article 4 of Decision 2005/681 was amended as follows: ‘The seat of CEPOL shall be in Budapest, Hungary.’
10 On 23 May 2014, the Director of CEPOL, in his capacity as the authority empowered to conclude contracts of employment (‘the AECE’), adopted the contested decision. Article 1 of that decision, entitled ‘Date of relocation’, provides 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’.
11 Article 2 of the contested decision, entitled ‘Staff to inform CEPOL’, is worded as follows:
‘All staff are invited to indicate in writing to the Director their intention to join CEPOL at its new location by 30 June 2014.
In the event [that] a [given] staff member informs the Director, by the deadline, that s/he 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.
Staff members are reminded of the terms of the resignation notice stipulated in their contract. Deviation from the terms of notice can be agreed with the Director on an individual basis.’
12 On 30 June 2014, the appellants informed the Director of CEPOL that they wished to continue their respective contractual employment relationships at CEPOL’s new seat in Budapest, but that their reply did not bind them and did not affect the legality of the procedure.
13 On 13 August, 18 August and 19 August 2014, respectively, the appellants lodged a complaint against the contested decision, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). FP argued, in essence, that the contested decision breached, first, his contract of employment by unilaterally amending his place of employment and, second, his legitimate salary expectations, which depended on the application of the correction coefficient provided for the United Kingdom.
14 FQ and FN both maintained that the amendment of their place of employment constituted an abnormal and unforeseeable event and could not be imposed without their consent and suitable financial compensation. FQ also complained that the correction coefficient provided for Hungary would now be applied to her salary instead of the — much higher — coefficient applicable to the United Kingdom which she had expected to receive throughout her term of employment. In those conditions, FQ considered that she should be granted suitable financial compensation.
15 FN moreover claimed that there had been an infringement of the principle of the protection of legitimate expectations in the light of the clear and specific assurances he had been given that he would work at Bramshill for the entirety of the duration of his contract. In addition, he criticised, first, the brevity of the period he had been given to inform CEPOL whether or not he was joining the new seat in Budapest and, second, the fact that the contested decision offered him resignation without financial compensation as the sole alternative to relocating to Budapest.
16 On 1 October 2014, the appellants took up their duties at CEPOL’s new seat in Budapest.
17 On 28 November 2014, the Director of CEPOL, in his capacity as the AECE, rejected the appellants’ complaints. To that end, the Director of CEPOL inter alia highlighted (i) that the decision to transfer CEPOL’s seat had been adopted by the EU legislature, which has a broad discretion in such matters; (ii) that no specific assurance had been given to the appellants as regards benefiting from the correction coefficient applicable to the United Kingdom throughout the term of their employment; (iii) that, in accordance with the case-law, the AECE could decide, in the interests of the service, to reassign its members of staff to other places of employment; (iv) that it was not in the interests of the service of CEPOL to keep staff at Bramshill, when CEPOL’s activities and jobs were now located in Budapest; (v) in the decisions rejecting the complaints of FN and of FQ, that CEPOL’s staff 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 request of the Home Secretary of the United Kingdom that the Bramshill site be vacated by 30 September 2014, and (vi) regarding FQ’s request for financial compensation, that she was eligible, under the conditions laid down in the Staff Regulations, to have her relocation costs reimbursed and to receive daily allowances as well as the installation allowance.
Proceedings at first instance and judgment under appeal
18 By application lodged at the Registry of the Civil Service Tribunal on 9 March 2015, registered as Case F‑41/15, FK, FL, FM and FO together with the appellants sought, inter alia, the annulment of the contested decision and, so far as necessary, the decisions rejecting the complaints, as well as compensation from CEPOL for the damage allegedly suffered.
19 By order of 16 September 2015, FK and Others v CEPOL (F‑41/15, not published, EU:F:2015:104), the President of the Third Chamber of the Civil Service Tribunal, to which the action had been assigned, decided, pursuant to Article 44(2) of the Rules of Procedure of the Civil Service Tribunal, to separate the case of FK from the cases of, first, FL, FM and FO and, second, the appellants. Action F‑41/15, to the extent that it was brought by the appellants, was then registered under number F‑41/15 DISS II.
20 By letter of the Registry of the Tribunal of 27 October 2015, the appellants were informed that the Tribunal had decided, pursuant to Article 55(1) of its Rules of Procedure, that a second exchange of written pleadings was necessary. In that context, the appellants were requested, in their reply, essentially to take a position on the admissibility of their claims for annulment and for damages.
21 On 11 April 2016, the Tribunal delivered the judgment under appeal, by which it dismissed the appellants’ action and ordered them to pay the costs.
22 In the first place, in paragraphs 47 to 49 of the judgment under appeal, the Tribunal dismissed, for the following reasons, CEPOL’s objections of inadmissibility, based, respectively, on the confirmatory nature of the contested decision and the fact that that decision was merely the expression, under circumscribed powers, of the decision of the EU legislature to transfer the seat of CEPOL to Budapest, which the appellants had not challenged or claimed to be unlawful:
‘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, 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, 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.’
23 In the second place, in paragraphs 50 and 51 of the judgment under appeal, the Tribunal held that it was necessary for it to give a ruling on the legality of both the contested decision and the decisions rejecting the complaints, since the latter contained new positions adopted by the AECE of CEPOL in response to the questions and arguments raised by the appellants in their complaints.
24 In the third place, the Tribunal rejected the three pleas in law put forward by the appellants in support of their claims for annulment alleging, first, infringement of Article 47 of the CEOS, second, infringement of the contractual provisions binding the appellants to CEPOL and infringement of their acquired rights, and, third, infringement of the duty to have regard for the welfare of staff and infringement of the principles of the protection of legitimate expectations and sound administration.
25 First, in paragraphs 56 and 57 of the judgment under appeal, the Tribunal rejected as ineffective the first plea, by which the appellants essentially claimed that CEPOL had infringed Article 47 of the CEOS by providing, in Article 1 of the contested decision, that a refusal on their part to take up their duties at CEPOL’s new seat would be regarded as a resignation. To that end, the Tribunal found that the AECE of CEPOL had not applied that warning in the case of the appellants, who had agreed to continue their respective contractual relationships with CEPOL and take up their duties at its new seat on 1 October 2014.
26 In paragraphs 58 to 62 of the judgment under appeal, the Tribunal added that the first plea was not, in any event, well founded. After noting that the failure of a staff member to report to his place of work could, according to the case-law, be regarded as tantamount to resignation for the purposes of Article 47 of the CEOS, it pointed out that the AECE had no room for manoeuvre in the implementation of Article 4 of Decision 2005/681, as amended by Regulation No 543/2014, from which it was clear that the EU legislature had implicitly but necessarily decided to reassign the staff of CEPOL to Budapest.
27 According to the Tribunal, all EU officials and members of staff are under an obligation to accept any assignment which is consistent with the category and grade of their 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, and also 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, in accordance with Article 20 of the Staff Regulations, applicable by analogy to temporary and contractual agents by virtue of Articles 11 and 81 of the CEOS.
28 The Tribunal concluded that the AECE of CEPOL could not be criticised for having asked the staff of CEPOL to take up their duties at the CEPOL’s new seat in Budapest. Consequently, also taking into account CEPOL’s broad discretion in the organisation and structuring of its services, the Tribunal found that, in any event, in the particular circumstances of the case at hand, the AECE of CEPOL was entitled to decide, exercising that broad discretion, that the refusal by one of CEPOL’s staff members to take up duties at its new seat in Budapest was tantamount to resignation.
29 Second, in paragraphs 68 to 74 of the judgment under appeal, the Tribunal rejected the argument the appellants had put forward in support of their second plea according to which the AECE of CEPOL had breached their respective contracts of employment and their acquired rights by reassigning them without their consent.
30 Third, in paragraphs 81 to 99 of the judgment under appeal, the Tribunal rejected the third plea, by which the appellants alleged (i) infringement of the legitimate expectations they were entitled to hold as regards the immutability of their place of employment; (ii) infringement of the principle of sound administration on account of the overly short period of reflection given to them to decide whether or not to continue their respective employment relationships with CEPOL in Budapest, as well as failure on the part of CEPOL to establish a transitional regime, and (iii) infringement of the duty to have regard for the welfare of staff. In the context of examining that plea, the Tribunal also rejected the argument the appellants put forward in support of their second plea, by which the AECE of CEPOL, instead of changing their place of employment, could have decided to offer them the possibility of working remotely from their homes in the United Kingdom while maintaining the benefit of the correction coefficient applicable to that Member State or to offer them financial compensation with or without termination of service.
31 In the fourth place, the Tribunal considered the appellants’ claims for damages. In paragraphs 106 to 113 of the judgment under appeal, it dismissed them for the following reasons:
‘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 period prescribed, 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, Marcato v Commission, T‑64/91, EU:T:1992:22, paragraphs 32 and 33; judgment of 6 November 1997, Liao v Council, T‑15/96, EU:T:1997:169, paragraph 57; and order of 20 March 2014, 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, 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, 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.’
32 In paragraphs 117 and 118 of the judgment under appeal, the Tribunal found that since the appellants’ claims seeking compensation for non-material damage were closely linked to the claims for annulment, they also had to be dismissed as a result of the dismissal of the latter.
Procedure before the General Court and forms of order sought by the parties
33 By document lodged at the Registry of the General Court on 20 June 2016, the appellants brought the present appeal. By letter lodged at the Court Registry on the same day, the appellants submitted an application for anonymity, which the Court granted by decision of 15 July 2016.
34 On 21 September 2016, CEPOL lodged a response.
35 On 1 December 2016, following a reasoned application submitted by the appellants, the Court allowed a second exchange of pleadings in accordance with Article 201(1) of the Rules of Procedure of the General Court. The parties lodged those pleadings within the periods prescribed.
36 By letter lodged at the Court Registry on 11 April 2017, the appellants submitted a reasoned application under Article 207(1) of the Rules of Procedure to be heard in the oral part of the procedure. On a proposal from the Judge-Rapporteur, the Court (Appeal Chamber) granted that request and, accordingly, opened the oral part of the procedure.
37 By decision of 20 September 2017, the Court, pursuant to Article 28(1) to (3) of the Rules of Procedure and on a proposal from the Appeal Chamber, referred the present case to a Chamber sitting in extended composition.
38 By letters of the Court Registry of 9 November 2017, the Court requested the parties, by way of measures of organisation of procedure under Article 89 of the Rules of Procedure, to respond in writing to two questions relating to the admissibility of the claims for annulment made at first instance. In particular, by the first of those questions, the Court requested the parties to indicate to what extent Article 1 of the contested decision adversely affected the appellants in so far as it provided that (a) ‘all staff ... [we]re 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 (b) ‘non-compliance with this instruction [would] be considered as resignation with [effect from] 30 September 2014’. In that latter regard, the Court requested the parties to specify whether Article 1 of the contested decision was to be interpreted in the sense that a staff member who would not take up his or her duties on 1 October 2014 would automatically be considered as having resigned without any case-by-case examination.
39 The parties complied with that request within the periods prescribed.
40 Under the measures of organisation of procedure referred to in paragraph 38 above, the Court also requested the parties to reply orally during the hearing to three questions relating to the merits of the case and to a question relating to the examination, by the Tribunal, of the admissibility of their claims seeking compensation for the material damage allegedly suffered. In particular, by that latter question, the Court asked the parties whether the Tribunal had ruled on the existence of a direct link between those claims and those seeking annulment of the contested decision and the decisions rejecting the complaints and, if so, had given sufficient grounds for the conclusion reached on that issue.
41 The parties presented oral argument and replied to the Court’s written and oral questions at the hearing on 16 January 2018.
42 The appellants claim that the Court should:
– annul the contested judgment;
– consequently:
– annul the contested decision and, so far as necessary, the decisions rejecting the complaints;
– order CEPOL to pay compensation for the material and non-material damage suffered;
– order CEPOL to pay the costs of both sets of proceedings.
43 CEPOL contends that the Court should:
– dismiss the appeal;
– confirm the judgment under appeal;
– order the appellants to pay the costs of both sets of proceedings.
The appeal
44 In support of their appeal, the appellants put forward three grounds. By their first two grounds of appeal, the first alleging an error of law in the application of Article 47 of the CEOS, the second alleging errors of law in the interpretation of the appellants’ acquired rights and the contractual provisions binding them to CEPOL and in the application of the principle of sound administration and the duty to have regard for the welfare of staff, as well as infringements of the principles of equal treatment and the obligation to state reasons and distortion of the facts, the appellants criticise the dismissal of their claims for annulment. By their second ground of appeal, alleging, inter alia, infringement of Article 90 of the Staff Regulations, they criticise the dismissal of their claims seeking compensation for the material damage allegedly suffered.
45 However, the appellants do not expressly challenge the dismissal, by the Tribunal, of their claims seeking compensation for the non-material damage allegedly suffered. In their appeal, the appellants merely indicate that that damage is directly linked to their claims for annulment. As is apparent from paragraph 32 above, the Tribunal found, in paragraphs 117 and 118 of the judgment under appeal, that the claims seeking compensation for the non-material damage allegedly suffered and the claims for annulment were closely linked and thus had to be dismissed as a result of the dismissal of the latter.
46 In those circumstances, it is necessary to examine, in the first place, the dismissal, by the judgment under appeal, of the appellants’ claims for annulment and, in the second place, the dismissal, by the same judgment, of their claims seeking compensation for the material damage allegedly suffered.
The dismissal of the claims for annulment made at first instance
47 As a preliminary point, it should be recalled that, in paragraphs 53 to 99 of the judgment under appeal, the Tribunal dismissed the appellants’ claims for annulment as unfounded. Prior to that, in paragraphs 47 to 49 of the judgment under appeal, the Tribunal considered that the contested decision adversely affected the appellants. In paragraph 51 of that judgment, it found that the decisions rejecting the complaints, when compared with the contested decision, contained new positions adopted by the AECE of CEPOL in response to the questions and arguments raised by the appellants in their respective complaints and that, consequently, it was necessary to rule on the legality both of the contested decision and of the decisions rejecting the complaints.
48 CEPOL did not lodge a cross appeal under Article 202(1) of the Rules of Procedure seeking annulment of the decisions of the Tribunal relating to the admissibility of the appellants’ claims for annulment.
49 It is appropriate, however, to note that, seised of an appeal under Article 9 of Annex I to the Staff Regulations of the Court of Justice of the European Union, the General Court may, pursuant to Article 129 of the Rules of Procedure, at any time of its own motion consider whether there exists any bar to proceeding with a case. As the conditions of admissibility of an action under Articles 90 and 91 of the Staff Regulations are a matter of public policy, it is for the Court, where appropriate, to examine them of its own motion, provided that it has first invited the parties to submit their observations. The existence of an act adversely affecting the official or agent concerned within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations is an essential condition of admissibility for any action brought by officials and agents against the EU institution employing them (see, to that effect, judgment of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraphs 129 to 131 and the case-law cited).
50 In the case at hand, the Court considers it appropriate to examine of its own motion whether the Tribunal was justified in considering, in paragraphs 47 to 49 of the judgment under appeal, that the contested decision adversely affects the appellants. In that regard, it is important to underline that only measures which come from the competent authority and include a definitive position adopted by the administration which produces binding legal effects capable of directly and immediately affecting the applicant’s interests by bringing about a distinct change in his legal position constitute acts adversely affecting him (order of 13 December 2011, Marcuccio v Commission, T‑311/09 P, EU:T:2011:734, paragraph 74).
51 In response to the measures of organisation of procedure of the Court referred to in paragraph 38 above, CEPOL contended that the contested decision did not adversely affect the appellants in so far as it provided, in Article 1 thereof, that they were expected to take up duties at the new CEPOL headquarters in Budapest on 1 October 2014 or at a date agreed with the Director of CEPOL. According to CEPOL, Article 1 of the contested decision is in that regard a merely confirmative measure of the decision of the EU legislature to transfer CEPOL’s seat from Bramshill to Budapest. To the extent thatthat provision specifies the date on which CEPOL’s staff members would take up their functions in Budapest, it merely reminds them of their obligations under Article 20 of the Staff Regulations, which provides that an official is to reside in the place where he is employed or at no greater distance there from as is compatible with the proper performance of his duties.
52 CEPOL also argued that the indication contained in Article 1 of the contested decision, according to which ‘non-compliance with the instruction [that all staff were expected to take up duties at the new CEPOL headquarters in Budapest on 1 October 2014 or at a date agreed between the Director and the staff member concerned] ... [would] be considered as resignation with [effect from] 30 September 2014’, contains no decisional element.
53 First, that indication merely informs all of CEPOL’s staff as to the contractual consequences of a staff member’s refusal to take up his or her duties in Budapest. Such a refusal would not, by definition, be an action undertaken by the Director of CEPOL, but an omission on the part of the staff member concerned, the resignation of whom would be the legal consequence. The reference to the ‘instruction’ of the Director of CEPOL in no way alters that conclusion, that expression simply referring, in non-technical terms, to the first sentence of Article 1 of the contested decision.
54 Second, a CEPOL staff member who was not in compliance with that ‘instruction’ would not automatically be considered as having resigned without an individual examination of his or her particular case. The date for the taking-up of duties indicated in the first sentence of Article 1 of the contested decision is not an absolute date, as CEPOL staff members have the possibility of agreeing a later date for taking up duties with the Director of CEPOL. That follows not only from the wording of Article 1 of the contested decision, but is also inherent in the new situation applicable to all CEPOL staff members, which is bound to result in a multitude of individual cases. Thus, a CEPOL staff member was allowed to telework from her home in the United Kingdom from October 2014 until the end of her contract, namely, 31 December of the same year.
55 The appellants claim that the contested decision adversely affects them in so far as it decides on their reassignment from Bramshill to Budapest. In particular, the appellants maintain that that decision has financial effects on them, resulting in the huge decrease in remuneration to which they had to consent on account of the difference between the correction coefficients provided for the United Kingdom and Hungary, respectively. The appellants’ private lives have also been impacted. FN still has to support his wife and two stepchildren who remain in the United Kingdom, while FQ was forced to take unpaid leave for two months and one month of annual leave in order to sell as fast as possible a house she owned in France the monthly mortgage and maintenance costs of which she was moreover no longer able to pay. In support of their argument, the appellants cite the judgment of 11 July 1996, Aubineau v Commission (T‑102/95, EU:T:1996:104), which concerned the reassignment of a member of the temporary staff, but did not raise any questions of admissibility.
56 Moreover, the appellants claim, in relation to their interest in bringing proceedings, that the contested decision was the only one they could legally challenge to contest their reassignment to Budapest.
57 The appellants also argue that, unless he or she had agreed a different date with the Director of CEPOL, a CEPOL staff member who would not take up his or her duties in Budapest on 1 October 2014 would automatically be considered as having resigned. In that regard, first, the appellants state that there was no case-by-case examination. No individual decision was moreover adopted in respect of the CEPOL staff members who did not take up their duties in Budapest in a timely manner. Second, the appellants argue that the Tribunal committed a manifest error of assessment in holding, in paragraph 57 of the judgment under appeal, that the refusal of one of CEPOL’s agents to take up his or her duties in Budapest on 1 October 2014 ‘could be considered, in the circumstances, to be tantamount to resignation’. In so doing, the Tribunal implied that such a refusal might not be considered as resignation. According to the appellants, however, it is apparent from the wording of Article 1 of the contested decision that a refusal of that nature ‘will be considered as resignation’.
58 In that regard, it should be noted that the contested decision and the decisions rejecting the complaints contain, in essence, two strands. The first strand concerns the transfer of CEPOL’s seat from Bramshill to Budapest and the financial consequences the transfer was likely to have for all of CEPOL’s staff. The second concerns the situation of those staff members who did not wish to take up their duties at CEPOL’s new seat in Budapest in a timely manner.
The first strand
59 In paragraph 48 of the judgment under appeal, the Tribunal considered that, by the contested decision, the AECE of CEPOL decided both the place and the date of the reassignment of CEPOL’s staff. In paragraph 49 of the judgment under appeal, the Tribunal cited the judgment of 24 February 1981, Carbognani and Coda Zabetta v Commission (161/80 and 162/80, EU:C:1981:51), to conclude that the contested decision, although it implements an act of general application of the Council and of the Parliament, had to be regarded as a decision adversely affecting the appellants in that it amended their place of employment under allegedly unlawful conditions.
60 It must, however, be pointed out that the contested decision in no way amended the appellants’ place of employment. In that regard, it should be recalled that the transfer of CEPOL’s seat is the result of an agreement of the Member States and, as is apparent from the third recital of the contested decision and from the decisions rejecting the complaints, of an act of the EU legislature. Thus, first, on 8 October 2013, the Member States decided by common agreement that, once it left the Bramshill site, CEPOL would be hosted in Budapest. Second, the EU legislature, by Article 1 of Regulation No 543/2014, amended Article 4 of Decision 2005/681 to state that CEPOL’s seat was no longer in Bramshill, but in Budapest. In changing the location of CEPOL’s seat in that way, the Member States and, as the Tribunal noted in paragraph 59 of the judgment under appeal, the legislature necessarily decided that CEPOL’s staff had to be reassigned from Bramshill to Budapest. In so far as, first, Article 20 of the Staff Regulations requires staff to reside in or in close proximity to the place where they are employed or, second, CEPOL’s seat constitutes their place of employment, the staff of that agency are, in principle, assigned to its seat.
61 Consequently, in Article 1 of the contested decision, the AECE of CEPOL merely recalled the principle of the reassignment of its staff as was decided by common agreement of the Member States of 8 October 2013 and by Article 4 of Decision 2005/681, as amended by Regulation No 543/2014. In so doing, the AECE of CEPOL did not bring about a distinct change in the appellants’ legal situation, which actually resulted from the common agreement of the Member States of 8 October 2013 and from Article 4 of Decision 2005/681, as amended by Regulation No 543/2014. Article 1 of the contested decision therefore did not adversely affect the appellants in that regard.
62 Neither the judgment of 24 February 1981, Carbognani and Coda Zabetta v Commission (161/80 and 162/80, EU:C:1981:51), to which the Tribunal referred in paragraph 49 of the judgment under appeal, nor that of 11 July 1996, Aubineau v Commission (T‑102/95, EU:T:1996:104), on which the appellants rely, calls that conclusion into question. Both of those judgments involve a different scenario from that of the case at hand. Neither of those cases concerned, as in the present case, a reassignment decided by the Member States or the legislature which the institution concerned merely materially implemented in general terms by means of the contested act. On the contrary, the subject matter of those two cases was individual acts, the adoption of which assumed the exercise of the administration’s discretion. Thus, the case that gave rise to the judgment of 24 February 1981, Carbognani and Coda Zabetta v Commission (161/80 and 162/80, EU:C:1981:51), concerned individual acts that could objectively be regarded as involving the reassignment of two officials from an external post situated in Rome (Italy) to the seat of the Commission of the European Communities in Brussels (Belgium), pursuant to a decision of general application establishing a rotation system, which left the administration discretion and allowed it, inter alia, to take into account particular service problems or staff problems affecting the interested parties (judgment of 24 February 1981, Carbognani and Coda Zabetta v Commission, 161/80 and 162/80, EU:C:1981:51, paragraphs 4 to 9 and 12 to 15).
63 Similarly, in the case that gave rise to the judgment of 11 July 1996, Aubineau v Commission (T‑102/95, EU:T:1996:104), being challenged was an individual decision by which a member of the temporary staff had been reassigned from Brussels to Ispra (Italy) without his consent, not in consequence to an act of the legislature, but on the ground that there was no position corresponding to his qualifications within the Directorate-General of the Commission at which he had been employed (judgment of 11 July 1996, Aubineau v Commission, T‑102/95, EU:T:1996:104, paragraphs 1 to 4).
64 In addition, regarding the appellants’ emoluments under the Staff Regulations, it is necessary to recall the wording of the first paragraph of Article 64 of those regulations, applicable by analogy to members of the temporary staff and contract agents 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 these ... 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.’ It follows that the determination of the correction coefficient applicable to the staff of an agency such as CEPOL is not left to the discretion of its AECE, but is the consequence of the living conditions of the place of employment. As is apparent from paragraphs 60 and 61 above, however, the amendment of the appellants’ place of employment stemmed from the common agreement of the Member States of 8 October 2013 and from Article 1 of Regulation No 543/2014. It is therefore necessary to conclude that the application to the appellants of the correction coefficient provided for Hungary instead of the one provided for the United Kingdom is simply an automatic consequence of the common agreement of the Member States of 8 October 2013 and Article 1 of Regulation No 543/2014, first, and of the first paragraph of Article 64 of the Staff Regulations, second; the contested decision and the decisions rejecting the complaints neither added nor removed anything in that regard.
65 It follows that, since the first strand of the contested decision and the decisions rejecting the complaints did not bring about a change in the appellants’ legal situation, they did not adversely affect them.
The second strand
66 It must be recalled that, according to the indication contained in Article 1 of the contested decision, all CEPOL staff were expected to take up duties at the new CEPOL headquarters in Budapest on 1 October 2014 or at a date agreed between the Director of CEPOL and the staff member concerned and non-compliance with that instruction would be considered as resignation with effect from 30 September 2014. That indication left CEPOL staff members with two options. They could either take up their duties at the new seat of CEPOL in Budapest in a timely manner or not take up their duties there in a timely manner. In the case at hand, the appellants chose the first option. As the Tribunal found in paragraph 57 of the judgment under appeal, the AECE of CEPOL therefore did not apply the indication contained in Article 1 of the contested decision in their case.
67 In order to bring about a change in the legal situation of the appellants within the meaning of the case-law cited in paragraph 50 above, that indication was required not to reflect only the intention of the AECE of CEPOL to follow a general line of conduct along which it envisaged adopting individual decisions in the future, but to lay down, in what is henceforth a definitive form, rules of general application from which the AECE of CEPOL could not in principle deviate for the assessment of the individual situations of the CEPOL staff members who would not be present at the new CEPOL seat at a given date (see, to that effect, judgments of 20 November 2008, Italy v Commission, T‑185/05, EU:T:2008:519, paragraphs 41 and 47, and of 13 December 2016, IPSO v ECB, T‑713/14, EU:T:2016:727, paragraphs 19 to 22).
68 In the case at hand, it must be pointed out that the contested decision does not lay down any definitive rule of that nature. As CEPOL rightly notes, a member of staff of CEPOL who would not take up his or her duty at the new seat of CEPOL in Budapest on 1 October 2014 would not automatically be considered as having resigned from 30 September 2014 without any individual examination of his or her particular case. Given that various reasons might explain an absence from the place of employment, the mere circumstance that a CEPOL staff member is not present at CEPOL’s new seat in Budapest in a timely manner could not be interpreted as an act of resignation.
69 In that regard, in the first place, it should be pointed out that the contested decision confers a margin of negotiation on the Director of CEPOL and on staff members. First, as was noted in paragraph 29 of the judgment under appeal, the third paragraph of Article 2 of that decision provides for the possibility of individual negotiations on the resignation notice between the Director of CEPOL and those staff members not wishing to join the new CEPOL seat in Budapest.
70 Second, according to Article 1 of the contested decision, those CEPOL staff members wishing to join CEPOL’s new seat in Budapest could agree with the Director of CEPOL a starting date after 1 October 2014.
71 In the second place, it is apparent from the file in the case at first instance that CEPOL staff members who did not report for duty at CEPOL’s new seat in Budapest in a timely manner were issued a new individual decision by which the AECE of CEPOL ‘decided to accept [their] resignation’, after having verified that there was no medical reason justifying their absence.
72 It is apparent from the foregoing that, in adopting the contested decision, the AECE of CEPOL defined a general line of conduct along which it envisaged, pursuant to the relevant provisions, subsequently adopting individual decisions declaring, as the case may be, the resignation of CEPOL agents who have not taken up their duties in a timely manner at the new seat of CEPOL in Budapest, account being taken of each of their particular situations.
73 It is therefore appropriate to conclude that the second strand of the contested decision did not adversely affect the appellants, either.
74 Consequently, the parties having been heard, the Court must declare of its own motion that the Tribunal committed an error of law in not declaring inadmissible the claims for annulment made at first instance.
75 It follows that, without it being necessary to examine the first two grounds of appeal, by which the appellants criticise the dismissal on the merits of their claims for annulment made at first instance, the judgment under appeal must be set aside in so far as it did not declare inadmissible those claims.
The dismissal of the claims for compensation made at first instance
76 By their third ground of appeal, the appellants criticise the Tribunal for having committed an error of law in the assessment of their claims seeking compensation for the material damage they suffered. The appellants put forward two complaints in support of their argument.
77 By their first complaint, the appellants argue, in essence, that the Tribunal was wrong to dismiss, in paragraphs 106 to 110 of the judgment under appeal, their claims for compensation for the material damage suffered as inadmissible because they did not meet the requirements relating to the pre-litigation procedure referred to in Article 90(2) of the Staff Regulations. In support of that complaint, the appellants rely on a number of decisions of the EU Courts, which they argue demonstrate that an action for damages which is directly linked to an application for annulment is admissible as incidental to the latter, without necessarily having to be preceded by a request for compensation and, as the case may be, a complaint directed against the rejection of that request. First, in response to the written question of the Court described in paragraph 40 above, the appellants argued that the Tribunal had not genuinely examined the existence of a direct link between their claims for annulment and their claims for compensation. Second, the appellants contend that the application for damages they had submitted at first instance specifically sought compensation for damage directly linked to the contested decision. In those circumstances, they argue that that application did not, under any circumstances, have to be preceded by a complaint.
78 By their second complaint, the appellants argue, in essence, that since the dismissal of their claims for annulment submitted at first instance is vitiated by error, the Tribunal should also be found to be at fault for holding, in paragraph 111 of the judgment under appeal, that the claims for compensation in respect of their material damage — assuming that they were closely linked to the claims for annulment — had to be dismissed as a consequence of the rejection of the latter.
79 CEPOL disputes the appellants’ argument.
80 In the judgment under appeal, the Tribunal relied on two grounds to dismiss the claims seeking compensation for the appellants’ material damage.
81 First, in paragraph 110 of the judgment under appeal, the Tribunal dismissed as inadmissible the appellants’ claims for compensation for material damage, on the ground that the requirements of the pre-litigation procedure had not been met. To arrive at that conclusion, the Tribunal found, in paragraph 108 of the judgment under appeal, that the AECE of CEPOL had not, in the contested decision, taken a position on the financial consequences under the Staff Regulations for each individual appellant. In paragraph 109 of the judgment under appeal, the Tribunal found that it was only in their respective complaints that the appellants had 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. The Tribunal concluded that that claim for compensation constituted a request, within the meaning of Article 90(1) of the Staff Regulations, the rejection of which in the context of the decisions rejecting the complaints should have been the subject of a complaint. According to the Tribunal, however, the appellants did not lodge a complaint against that rejection prior to the bringing of the action at first instance.
82 Second, in paragraph 111 of the judgment under appeal, the Tribunal held that, in any event, even assuming that they could be regarded as closely linked to the claims for annulment, the claims for compensation in respect of their material damage had to be dismissed as a consequence of the rejection of the latter.
83 In so doing, the Tribunal did not err in law.
84 As is apparent from paragraphs 51 to 74 above, the Tribunal was required to dismiss the claims for annulment made at first instance as inadmissible in so far as they were directed against an act not adversely affecting the appellants. The Tribunal could therefore consider, in paragraph 111 of the judgment under appeal, that the appellants’ claims for compensation in respect of their material damage — assuming that they were closely linked to the claims for annulment — had to be dismissed as a consequence of the rejection of the latter. Accordingly, even assuming that the appellants were justified in arguing under their first complaint that the Tribunal committed an error in not finding the existence of a direct link between those claims and the claims for compensation in respect of the appellants’ material damage, the Tribunal cannot be criticised for having dismissed those latter claims.
85 Consequently, the third ground of appeal must be rejected.
Consideration of the action at first instance
86 Under Article 4 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), where the General Court sets aside a decision of the Tribunal and considers that the state of the proceedings does not permit a decision, the chamber that rules on the appeal is also to rule on the dispute. That is the case here.
87 As a preliminary point, it should be recalled that the judgment under appeal is set aside only to the extent that the Tribunal did not declare inadmissible the claims for annulment made at first instance. However, as has been held in paragraphs 76 to 85 above, the judgment under appeal remains well founded to the extent that it dismissed the appellants’ claims for compensation in respect of the material damage allegedly suffered. Regarding the dismissal, by the Tribunal, of the appellants’ claims for compensation in respect of the material damage allegedly suffered, it was not challenged in any way in the present appeal (see paragraph 45 above).
88 Thus, the Court must rule definitively only on the claims for annulment made at first instance. For the reasons set out in paragraphs 49 to 75 above, it is necessary to consider that those claims must be declared inadmissible.
Costs
89 Under Article 211(2) of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 134(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 211(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
90 However, according to Article 211(4) of the Rules of Procedure, the Court may, in appeals brought by officials or other servants of an institution, by way of derogation from Article 134(1) thereof, decide to apportion the costs between the parties where equity so requires.
91 In the case at hand, the appellants have been unsuccessful in their claims so far as concerns both the appeal proceedings and the proceedings at first instance and CEPOL has applied for costs. However, in equity, the Court considers that, in view of all the circumstances of the case, it would be a fair assessment of the case to order each party to bear its own costs relating to those two proceedings.
On those grounds,
THE GENERAL COURT (Appeal Chamber)
hereby:
Sets aside the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 11 April 2016, FN and Others v CEPOL (F41/15 DISS II) in so far as it did not declare inadmissible the claims for annulment made by FN, FP and FQ;Dismisses the claims for annulment made by FN, FP and FQ before the Civil Service Tribunal in Case F41/15 DISS II;Dismisses the appeal for the remainder;Orders FN, FP and FQ, on the one hand, and the European Union Agency for Law Enforcement Training (CEPOL), on the other hand, each to bear their own costs relating to the appeal proceedings and to the proceedings at first instance.Delivered in open court in Luxembourg on 25 October 2018.
Signatures