ORDER OF THE GENERAL COURT (Seventh Chamber)
11 November 2021 (*)
(Action for annulment and for damages – Civil service – Officials – Commission staff serving in the EEAS – Request for reimbursement of mission expenses – Request for assistance – Rejection – Competence of the author of the act – Delegation of powers – Pre-litigation procedure – Designation of the defendant – Partial inadmissibility – Principle of sound financial management – Misuse of powers – Action in part manifestly lacking any foundation in law)
In Case T‑689/19,
ZU, represented by C. Bernard-Glanz, lawyer,
applicant,
v
European External Action Service (EEAS), represented by S. Marquardt and R. Spáč, acting as Agents,
defendant,
APPLICATION under Article 270 TFEU seeking, first, annulment of the decision of the EEAS of 30 November 2018 rejecting the applicant’s requests for the reimbursement of mission costs and for the assistance provided for in Article 24 of the Staff Regulations of Officials of the European Union and, in so far as necessary, annulment of the decision of the European Commission of 28 June 2019 rejecting the applicant’s complaint directed against the decision of the EEAS referred to above and, second, compensation for the harm allegedly suffered by him,
THE GENERAL COURT (Seventh Chamber),
composed of R. da Silva Passos, President, I. Reine and L. Truchot (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, ZU, is an official of the European Commission who, upon taking up his duties on 1 June 2007, was assigned to the European Anti-Fraud Office (OLAF). Pursuant to a decision of the appointing authority of the Commission of 2 February 2016, he was, as from 1 March 2016, assigned to the Directorate-General (DG) ‘Trade’, in which he occupied the post of Trade Affairs Manager in the Trade and Economic Section of the EU Delegation to Russia (‘the Delegation to Russia’), which has its headquarters in Moscow (Russia) and forms part of the European External Action Service (EEAS). As from 1 December 2018, the applicant was transferred to OLAF.
2 In the course of his duties within the Delegation to Russia, the applicant completed two missions during February 2018, the first to Sochi (Russia) and the second to Yerevan (Armenia) (‘the Sochi mission’ and ‘the Yerevan mission’ or, collectively, ‘the missions at issue’).
3 On 26 February 2018, the applicant submitted a request via the IT system of the Delegation to Russia for reimbursement of the expenses incurred in the context of the missions at issue.
4 Since the Delegation to Russia did not immediately accede to the request of 26 February 2018, a number of exchanges took place between the applicant and the administration.
5 On 27 July 2018, the applicant, who had not yet received reimbursement of the expenses incurred in the context of the missions at issue, submitted a note to the appointing authority of the Commission (‘the note of 27 July 2018’) containing the following:
– a request on the basis of Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) that the appointing authority take a decision allowing the competent services to reimburse the costs incurred in connection with the missions at issue (‘the request for reimbursement’);
– a complaint on the basis of Article 90(2) of the Staff Regulations ‘against [the] EU’s and its officials’ failure to comply with applicable provisions of [those] Staff Regulations [(Article 12a(3), Articles 56, 71, 86 …)], [of the] EU Charter of Fundamental Rights [(Article 31(1) and (2) and Article 41(1)], [and of the] principles of good administration and sound financial management’;
– a request on the basis of Article 24 and Article 90(1) of the Staff Regulations that the appointing authority take relevant action aimed at ‘ensuring that [his] fundamental and statutory rights are respected and the damage already caused is reversed’ (‘the request for assistance’).
6 By decision of 30 November 2018 (‘the decision of 30 November 2018’), the appointing authority of the EEAS:
– informed the applicant that it could not grant his request for reimbursement, given that he had not provided all of the required documents; it invited him to complete the file relating to that request;
– noted that the complaint set out in the note of 27 July 2018 concerned the same set of facts as those covered by the request in respect of which that appointing authority was giving its decision of 30 November 2018; noting that there was no final decision concerning the request for reimbursement of expenses incurred in the context of the missions at issue, the appointing authority of the EEAS took the view that the complaint was inadmissible;
– noted that the request for assistance was not substantiated by facts capable of demonstrating that the applicant had suffered threats, insults, defamatory acts or utterances, or any attack on his person or property, by reason of his position or duties, for the purposes of Article 24 of the Staff Regulations.
7 On 28 February 2019, the applicant lodged a complaint with the Commission against the decision of 30 November 2018.
8 On 11 March 2019, the applicant lodged at the Registry of the General Court an action designating the EEAS as the defendant and seeking annulment of the decision of 30 November 2018 in the part rejecting his complaint set out in the note of 27 July 2018, in so far as that decision implicitly rejected his request for the reimbursement of expenses incurred in the context of the missions at issue, submitted on 26 February 2018 (see paragraphs 3 and 4 above). That action was dismissed as inadmissible by order of 20 December 2019, ZU v EEAS (T‑154/19, not published, EU:T:2019:901), in which the Court found that the pre-litigation procedure provided for in the Staff Regulations had not been closed by the date on which that action was brought.
9 By decision of 28 June 2019 (‘the decision of 28 June 2019’), the appointing authority of the Commission rejected the applicant’s complaint of 28 February 2019.
Procedure and forms of order sought
10 By application lodged at the Registry of the General Court on 8 October 2019, the applicant brought the present action against the EEAS.
11 By separate document lodged at the Court Registry on 6 February 2020, in application of Article 66 of the Rules of Procedure of the General Court, the applicant requested anonymity. By decision of 25 February 2020, the Court (Seventh Chamber) granted that request.
12 The written part of the procedure was closed on 26 October 2020.
13 On 30 November 2020, the applicant requested a hearing, on the basis of Article 106(2) of the Rules of Procedure. He withdrew that request by letter lodged at the Court Registry on 28 October 2021.
14 By way of the measures of organisation of procedure referred to in Articles 88 to 90 of the Rules of Procedure, on 23 December 2020 the Court asked the Commission to provide it with certain information. A statement containing that information (‘the information provided by the Commission’) was lodged by the Commission at the Court Registry on 3 February 2021.
15 After the Court had invited the parties to comment on the information provided by the Commission, the applicant submitted his observations thereon on 19 March 2021, whereas the EEAS, by letter of 22 March 2021, stated that it had no observations to make.
16 On 24 February 2021, the applicant submitted new pleas in law and new evidence, on the basis of Articles 84 and 85 of the Rules of Procedure. The EEAS submitted its observations thereon on 8 April 2021, in which it contested the admissibility of those pleas and that evidence.
17 In the application, the applicant claims that the Court should:
– annul the decision of 30 November 2018 rejecting the request for reimbursement and the request for assistance and, in so far as necessary, the decision of 28 June 2019;
– order the EEAS to pay compensation for the non-material damage suffered;
– order the EEAS to pay the costs.
18 In the defence, the EEAS claims that the Court should:
– reject the application as inadmissible and, in any event, as unfounded as regards the request for assistance;
– order the applicant to pay the costs.
19 In the reply, the applicant also claims that the EEAS should be ordered to pay compensation for the damage incurred as a result of the ‘usurping powers’ which the EEAS allegedly exercised when it rejected the request for assistance without having the competence to do so.
20 In the rejoinder, the EEAS confirms the arguments put forward in the defence and adds that the applicant’s new claim for compensation must be rejected as inadmissible and, in any event, as unfounded.
Law
21 It follows from Article 129 of the Rules of Procedure that, on a proposal from the Judge-Rapporteur, the General Court may, at any time, even of its own motion, after hearing the main parties, decide to rule by way of reasoned order on whether there exists any absolute bar to proceeding with a case (see, to that effect, orders of 25 September 2008, Regione Siciliana v Commission, T‑363/03, not published, EU:T:2008:403, paragraph 12; of 1 October 2013, Evropaïki Dynamiki v Commission, T‑554/11, not published, EU:T:2013:548, paragraph 22; and of 27 March 2017, Frank v Commission, T‑603/15, not published, EU:T:2017:228, paragraphs 48 to 50).
22 Furthermore, under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, at any time, decide to give a decision by reasoned order without taking further steps in the proceedings.
23 In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.
24 In the defence, the EEAS submits that the action is inadmissible on the grounds that:
– the application and the presentation of the annexes to the application do not fulfil the requirements of the Rules of Procedure of the Court as regards clarity and precision;
– it is not the ‘correct defendant institution’, since the action should have been directed at the Commission;
– the appointing authority has not taken its final decision on the request for reimbursement.
25 In the reply, the applicant, in addition to disputing the merits of the pleas of inadmissibility set out in paragraph 24 above, raises a new plea, which he classifies as a plea based on public policy, alleging that the appointing authority of the EEAS was not competent to reject the request for assistance in the decision of 30 November 2018.
26 Before a decision can be taken on the pleas of inadmissibility raised by the EEAS, it is necessary to define the subject matter of the applicant’s claim for annulment.
The subject matter of the claim for annulment
27 The applicant seeks annulment of the decision of 30 November 2018, by which the EEAS rejected his requests contained in the note of 27 July 2018 and, in so far as necessary, annulment of the decision of 28 June 2019, by which the Commission rejected his complaint.
28 According to settled case-law, it follows from Articles 90 and 91 of the Staff Regulations that an action brought by a person to whom the Staff Regulations apply against a decision of the appointing authority or against the failure of that authority to take a measure prescribed by the Staff Regulations is admissible only if the person concerned has previously submitted a complaint to the appointing authority and that complaint has been rejected, at least in part, by an express or implied decision (judgments of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraph 25, and of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 31).
29 The administrative complaint and its rejection, whether express or implied, thus constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the EU Courts. That being so, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the EU Courts the act adversely affecting the applicant against which the complaint was lodged, except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged. An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the EU Courts, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34 and the case-law cited; order of 13 December 2018, Bowles v ECB, T‑447/17, not published, EU:T:2018:993, paragraph 19).
30 In the present case, it should be noted that the decision of 30 November 2018 and the decision of 28 June 2019 were taken by the appointing authority of two different administrations and that each decision has two facets, one dealing with the request for reimbursement and the other dealing with the request for assistance. Consequently, in order to apply the principles outlined in paragraph 29 above to the decision of 30 November 2018 and to the decision of 28 June 2019, it is necessary to determine, first, which appointing authority is competent to decide on the request for reimbursement and on the request for assistance, in order to identify, second, the subject matter of the applicant’s claim for annulment.
The appointing authority competent to decide on the request for reimbursement and the request for assistance
31 According to Article 2(1) of the Staff Regulations, ‘each institution shall determine who within it shall exercise the powers conferred … on the appointing authority’. Under Article 1b of the Staff Regulations, ‘save as otherwise provided in [the] Staff Regulations, the [EEAS] … shall, for the purposes of [the] Staff Regulations, be treated as [an institution] of the Union’. Accordingly, the EEAS has its own appointing authority. Article 6(5) of Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service (OJ 2010 L 201, p. 30) provides that the powers conferred on the appointing authority by the Staff Regulations are to be vested in the High Representative of the Union for Foreign Affairs and Security Policy.
32 However, as is apparent from the information supplied by the Commission (see paragraph 14 above), the applicant, who is a Commission official, retained that status even during the relevant period during which he was assigned to DG ‘Trade’ and was working for the Delegation to Russia.
33 Therefore, the appointing authority competent to take any decision in respect of the applicant was, in principle, the appointing authority of the Commission.
34 However, under Article 2(2) of the Staff Regulations, ‘one or more institutions may entrust to any one of them … the exercise of some or all of the powers conferred on the appointing authority’. That rule is subject to exceptions that are not relevant to the present case.
35 In the present case, Table XIV A of the Annex to Commission Decision C(2016) 1881 of 4 April 2016 amending Commission Decision C(2013) 3288 of 4 June 2013 on the exercise of powers conferred by the Staff Regulations on the appointing authority (AIPN) and by the Conditions of Employment of Other Servants on the authority empowered to conclude contracts of employment (AHCC), delegates certain powers to the appointing authority of the EEAS in respect of Commission officials who, like the applicant, are ‘working in Union Delegations in third countries’. In particular, it is apparent from Table XIV A 10 of that annex that the appointing authority of the EEAS has a delegated competence in respect of those officials for the ‘Determination of various entitlements (educational allowance, expatriation and foreign residence allowance, reimbursement of expenses etc.)[,] Ann VII (Art 3-13) + Ann X (Art 5, 15-23)’. Consequently, under that delegation of power, the appointing authority of the EEAS is competent to decide on the mission expenses referred to in Articles 11 to 13 of Annex VII to the Staff Regulations. It follows that, under the abovementioned provisions, the appointing authority of the EEAS was competent, by delegation, to decide on the request for reimbursement.
36 By contrast, as the Commission states, without being contradicted by the applicant, there is no provision in the decisions and annex mentioned in paragraph 35 above from which it can be inferred that the appointing authority of the EEAS has a delegated competence to decide on requests for assistance made by those officials under Article 24 of the Staff Regulations.
37 It should be recalled that, according to settled case-law, a delegation of powers cannot be presumed and that, even when empowered to delegate its powers, the delegating authority must take an express decision transferring them (judgment of 13 June 1958, Meroni v High Authority, 9/56, EU:C:1958:7, p. 151; see also, to that effect, judgments of 26 May 2005, Tralli v ECB, C‑301/02 P, EU:C:2005:306, paragraph 43, and of 22 November 2018, Janssen-Cases v Commission, T‑688/16, EU:T:2018:822, paragraph 31). No delegation of powers was made by the appointing authority of the Commission to the appointing authority of the EEAS enabling it to make a decision under Article 24 of the Staff Regulations.
38 Moreover, the applicable provisions do not contain any rule establishing that, when the EEAS receives two requests at the same time, one of which falls within an area in respect of which powers have been delegated to its appointing authority and the other of which is ancillary to that request and falls within an area in respect of which such delegation does not exist, that appointing authority is competent to decide on both requests.
39 Since any delegation of powers must be express (see paragraph 37 above), it cannot be concluded that the appointing authority of the EEAS could have had an implicit delegated competence to decide on the request for assistance, even if that request is ancillary to the request for reimbursement, which the appointing authority was indeed competent to process.
40 Therefore, it must be held that the appointing authority of the EEAS was not competent to decide on the request for assistance, which fell within the competence of the appointing authority of the Commission.
41 It should be noted that, contrary to what the EEAS claims, in the decision of 30 November 2018, its appointing authority did nevertheless decide on the request for assistance.
42 It is true that the part of the decision of 30 November 2018 bearing the title ‘Conclusion’ relates only to the request for reimbursement and remains silent on the request for assistance. However, that decision contains the following passage:
‘You also request the Appointing Authority to take relevant action under Article 24 [of the Staff Regulations], aimed at securing your fundamental and statutory rights and to reverse the damage allegedly caused. This request under Article 24 is unsubstantiated by facts which would demonstrate, prima facie, that you have suffered threats, insults or defamatory acts or utterances, or any attack [on] your person or property by reason of your position or duties’.
43 It follows that, in the decision of 30 November 2018, the appointing authority of the EEAS rejected the request for assistance, albeit succinctly, despite the fact that it was not competent to do so.
44 In the light of the foregoing, it must be concluded that the appointing authority of the EEAS was competent, by delegation, to decide on the request for reimbursement but that it was not competent to rule on the request for assistance, the processing of which was a matter for the appointing authority of the Commission.
45 By his complaint lodged with the Commission, the applicant challenged the decision of 30 November 2018 in so far as it rejected both the request for reimbursement and the request for assistance, without raising the issue of competence. In the decision of 28 June 2019, the appointing authority of the Commission rejected both facets of the complaint, again without addressing the issue of competence, even though that issue is a matter of public interest (see judgment of 20 November 2018, Barata v Parliament, T‑854/16, not published, EU:T:2018:809, paragraph 39 and the case-law cited).
46 It is in the light of all of those factors that it is necessary to determine, as regards both the rejection of the request for reimbursement and the rejection of the request for assistance, the subject matter of the claim for annulment, in accordance with the case-law referred to in paragraph 29 above.
Subject matter of the action
47 It is apparent from the case-law that a decision rejecting a complaint lacks any independent content, and that the action must therefore be regarded as being directed against the decision which is the subject of the complaint alone, in the case where, inter alia, the decision rejecting the complaint does not emanate from the same institution as the decision which is the subject of the complaint, provided that it is purely confirmatory of the latter and that, therefore, the annulment of the decision rejecting the complaint would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the decision which is the subject of the complaint (see, to that effect, judgment of 4 October 2018, Constantinescu v Parliament, T‑17/17, EU:T:2018:645, paragraph 20). In other words, it is possible that a decision rejecting a complaint does not have a different scope to that of the decision which is the subject of the complaint even if those decisions were taken by the appointing authorities of different institutions.
48 As regards the part of the complaint relating to the rejection of the request for reimbursement, it must be noted that, in the decision of 28 June 2019, the appointing authority of the Commission confirmed that rejection, on the basis, essentially, of the reasons relied on by the appointing authority of the EEAS in the decision of 30 November 2018, taken by that appointing authority in the exercise of its delegated powers. Accordingly, the decision of 28 June 2019 does not, in that regard, have a different scope, within the meaning of the case-law referred to in paragraph 29 above, to that of the decision of 30 November 2018. It should be added that, even if the appointing authority of the Commission had ruled on that part of the complaint without being competent to do so, the complaint would have been rejected, on 28 June 2019, by an implied decision by the appointing authority of the EEAS pursuant to the last sentence of Article 90(2) of the Staff Regulations. However, such a decision is also not capable of having a different scope to that of the decision of 30 November 2018.
49 Consequently, it must be concluded that, as regards the rejection of the request for reimbursement, the request for annulment must be regarded as being directed only against the decision of 30 November 2018, taken by the appointing authority of the EEAS.
50 By contrast, it must be held that the part of the complaint relating to the rejection of the request for assistance fell within the competence of the appointing authority of the Commission. In the absence of a delegation of powers, under which the appointing authority of the EEAS would have been competent to decide on the application of Article 24 of the Staff Regulations to a Commission official, the appointing authority of the EEAS is not competent to process a complaint relating to the rejection of a request based on that article. The appointing authority of the Commission was therefore competent to decide, in the decision of 28 June 2019, on the part of the complaint relating to the rejection of the request for assistance.
51 Furthermore, as is apparent from paragraph 40 above, the appointing authority of the EEAS was not competent to decide on the request for assistance, which fell within the competence of the appointing authority of the Commission.
52 It follows that, in the particular circumstances of the present case, as regards the rejection of the request for assistance, the decision of 28 June 2019, while rejecting the complaint against the decision of 30 November 2018, also constituted the competent appointing authority’s position. Accordingly, following his complaint, the applicant received a decision by the competent appointing authority on the request for assistance, which had as a result that it was irrelevant that that request had been processed by an appointing authority that lacked competence. To that extent, the decision of 28 June 2019 has a different scope to that of the decision of 30 November 2018 in so far as, in accordance with one of the situations covered by the case-law referred to in paragraph 29 above, it replaced the decision of 30 November 2018 as an act adversely affecting the official.
53 It follows from all of the foregoing considerations that the application for annulment must be regarded as being directed, first, against the decision of 30 November 2018, taken by the appointing authority of the EEAS, as regards the rejection of the request for reimbursement, and, second, against the decision of 28 June 2019, taken by the appointing authority of the Commission, as regards the rejection of the request for assistance.
The pleas of inadmissibility raised by the EEAS
54 As has been pointed out in paragraph 24 above, the EEAS has raised three pleas of inadmissibility.
The plea of inadmissibility relating to the designation of the main party against whom the action is brought
55 The EEAS contends that the act adversely affecting the applicant in the present case is the decision of 28 June 2019, taken by the appointing authority of the Commission. On that basis, it infers that the applicant ought to have designated that institution as the defendant. The applicant’s error in that regard, it submits, renders the action inadmissible.
56 The applicant replies that the action is directed against the decision of 30 November 2018, taken by the appointing authority of the EEAS. The applicant submits that the he was therefore fully entitled to designate the EEAS as the defendant.
57 It should be noted that, according to the case-law, actions for annulment must, in principle, be brought against the author of the contested measure (see order of 6 November 2018, Chioreanu v ERCEA, T‑717/17, EU:T:2018:765, paragraph 37 and the case-law cited). Since, in the light of paragraph 53 above, the action must be regarded as being directed, first, against the decision of 30 November 2018, taken by the appointing authority of the EEAS, as regards the rejection of the request for reimbursement, and, second, against the decision of 28 June 2019, taken by the appointing authority of the Commission, as regards the rejection of the request for assistance, the action in question had to be directed against the EEAS as regards the rejection of the request for reimbursement in the decision of 30 November 2018 and against the Commission in respect of the decision of 28 June 2019 rejecting the request for assistance.
58 According to the case-law, the mistaken designation in the application of a defendant, within the meaning of Article 76(c) of the Rules of Procedure, other than the body which took the contested measure does not render the application inadmissible if the application contains information which makes it possible to identify unambiguously the party against whom it is made, such as the designation of the contested measure and the body responsible for it. In such a case, the defendant must be considered to be the body responsible for the contested measure, even if not referred to in the introduction to the application. That situation must, however, be distinguished from the case in which the applicant persists in the designation of the defendant referred to in the introduction to the application, in full awareness of the fact that that defendant is not the author of the contested measure. In the latter case, the Court must treat as defendant the party designated in the application and, where appropriate, draw the necessary consequences of that designation in so far as the admissibility of the action is concerned (see judgment of 4 October 2018, Constantinescu v Parliament, T‑17/17, EU:T:2018:645, paragraph 33 and the case-law cited).
59 In the present case, in the application, the applicant designated the EEAS alone as the defendant. There is nothing in the arguments set out in the application to suggest that the applicant also intends to designate the Commission as a defendant, even though the Commission was the author of the decision of 28 June 2019, in respect of which the applicant has sought annulment ‘in so far as necessary’. Above all, in response to the plea of inadmissibility raised by the EEAS in the defence, alleging failure to comply with Article 76(c) of the Rules of Procedure, the applicant claimed, as to the substance, that the EEAS lacked competence to process his request for assistance. By contrast, he did not argue, in support of the admissibility of the action, that the action has to be understood as also designating the Commission.
60 As has been established in paragraph 53 above, the claim for annulment relates to the decision of 30 November 2018, taken by the appointing authority of the EEAS, as regards the rejection of the request for reimbursement, and to the decision of 28 June 2019, taken by the appointing authority of the Commission, as regards the rejection of the request for assistance.
61 Consequently, since the applicant has not designated the Commission as a defendant, the present plea of inadmissibility must be upheld in part, in so far as it is directed against the application for annulment of the decision of 28 June 2019 rejecting the request for assistance, and the action must be dismissed as inadmissible to that extent.
62 By contrast, the present plea of inadmissibility must be rejected in so far as it concerns the application for annulment of the decision of 30 November 2018 rejecting the request for reimbursement.
63 Consequently, it is still necessary to examine the other pleas of inadmissibility raised by the EEAS to the extent to which they relate to the application for annulment of the decision of 30 November 2018 rejecting the request for reimbursement.
The plea of inadmissibility alleging that the application and the submission of the annexes thereto do not fulfil the requirements of clarity and precision laid down in the Rules of Procedure
64 The EEAS contends that the application and the annexes thereto were not submitted in accordance with the Rules of Procedure.
65 The applicant disputes that plea of inadmissibility.
66 It should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 thereof, and under Article 76(d) of the Rules of Procedure, all applications must contain the subject matter of the dispute, the pleas in law and arguments relied on and a summary of the pleas relied on.
67 It is settled case-law that that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice it is necessary, if an action is to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself (see judgment of 25 January 2018, BSCA v Commission, T‑818/14, EU:T:2018:33, paragraph 95 and the case-law cited).
68 In the present case, as regards the request for reimbursement, it is possible to ascertain from the application, first, that it is directed against the decision of 30 November 2018, by which the appointing authority of the EEAS rejected that request, and, second, that the applicant relies on a single plea in law, alleging manifest errors of assessment, and infringement of the rules applicable to missions and of the principle of sound administration. In essence, the applicant claims that the EEAS was not entitled to refuse him reimbursement of the mission expenses requested on the sole ground that he had not complied with the itinerary as approved in the Mission Order in relation to the missions at issue. He claims that he could not be obliged to return to Moscow after 23.00, that the route which he followed was no more expensive than the one which had been authorised and that the presentation of boarding cards was not a necessary condition for obtaining reimbursement. It is, in fact, precisely those arguments that the EEAS responded to on the merits in its defence. In addition, the references to the annexes to the application indicate with sufficient precision the passages concerned.
69 The present plea of inadmissibility must therefore be rejected.
The plea of inadmissibility alleging that the appointing authority did not come to a final decision on the request for reimbursement
70 The EEAS contends that the action is inadmissible, in so far as it relates to the request for reimbursement, on the ground that no final decision has been taken to reject that request. According to the EEAS, the files of the missions at issue could still be reopened should the applicant provide the missing documents.
71 The applicant disputes that plea of inadmissibility.
72 It must be reiterated that, in the note of 27 July 2018, the applicant submitted to the appointing authority a request based on Article 90(1) of the Staff Regulations and concerning reimbursement of the expenses incurred in the context of the missions at issue. He claimed that he was entitled to that reimbursement on the basis of the documents which he had submitted, without having to add the boarding cards which the administration had asked him to provide. In the decision of 30 November 2018, the appointing authority of the EEAS rejected that request. While that decision left open the possibility for the applicant to produce the documents which the EEAS considered necessary for the purposes of reimbursement, it nonetheless rejected the request by which the applicant had sought to obtain reimbursement without having to produce any other documents. Accordingly, to that extent, the decision of 30 November 2018 is an act adversely affecting the applicant, which the applicant may seek to have annulled by the General Court.
73 In the light of the foregoing, the present plea of inadmissibility must be rejected.
74 Consequently, it is necessary to examine the substance of the application for annulment of the decision of 30 November 2018, in so far as the appointing authority of the EEAS rejected the request for reimbursement.
The substance of the action, in so far as it concerns the rejection of the request for reimbursement
Preliminary observations
75 First, it is common ground that the Mission Orders relating to the missions at issue provided that, in the context of the Sochi mission, the applicant was to leave Moscow on Wednesday 14 February 2018 to travel by plane to Sochi, where he was to take part in certain activities until the following Saturday 17 February. At his request, he had been authorised to remain in Sochi after completing that mission until Monday 19 February 2018, on which date he boarded a plane that landed in Yerevan at 14.05 in order to participate in certain activities scheduled in Yerevan until Wednesday 21 February 2018 at 18.00. He was due to return to Moscow on Wednesday 21 February 2018 on a flight landing at 23.40 (hereinafter ‘the contested flight’).
76 Next, it is also common ground that the applicant did not take the contested flight. He states that, given that he had taken leave on Thursday 22 February 2018 and that Friday 23 February 2018 was a non-working day, he remained in Yerevan until the morning of that second day, before taking a flight to Wrocław (Poland), which he himself had booked, and was at work again on Monday 26 February 2018 after taking a further flight back to Moscow.
77 Finally, in the decision of 30 November 2018, the appointing authority of the EEAS did not grant the request for reimbursement, on the ground that the applicant had not provided all the supporting documents required, including the boarding cards.
The plea relied on in the application
78 In the application, the applicant raises a single plea, alleging a manifest error of assessment, infringement of the principle of good administration, failure to comply with the principle of proportionality, breach of Article 71 of the Staff Regulations and of its derivative provisions such as those in Annex VII to those regulations and in Commission Decision C(2008) 6215 of 18 November 2008 on the general implementing provisions adopting the Guide to missions for officials and other servants of the European Commission (‘the Guide to Missions’), and irrelevance of the request for the provision of the boarding cards as a pre-condition for the reimbursement of mission costs.
79 In essence, first, the applicant argues that he was entitled not to follow the return itinerary which had been approved in the Mission Order, on the ground that that itinerary would have obliged him to return to Moscow at 23.40, even though Chapter 7 of the Guide to Missions provides that staff going on mission cannot be obliged to arrive at the place of employment after 23.00. He admits that he could have raised such an objection when the administration offered him the contested flight, but argues that he was afraid that, in that case, the Yerevan mission would not be authorised. He adds that he considered that he was allowed to extend his stay since, under Chapter 7, he could not be required to take the contested flight. Furthermore, the applicant states that the fact that he did not take the contested flight made it possible for him to take part, on the evening of 21 February 2018, in an event which was one of the activities connected with the Yerevan mission. In his view, that participation was justified by the interests of the service.
80 Second, the applicant states that he did not seek reimbursement of the costs relating to his private journey to Poland and the return to Moscow by a flight other than the contested flight. Furthermore, the total cost of accommodation for his stay in Yerevan was lower than the cost approved in the corresponding Mission Order. Accordingly, the principle that, under Article 11 of Annex VII to the Staff Regulations, the reimbursement of mission expenses is to be limited to the cost of ‘the most economical’ journey available was respected. According to the applicant, where, as in the present case, no additional cost is involved, there is no obligation to adhere strictly to the pre-approved itinerary. The applicable rules allow a degree of flexibility as regards the requirement to communicate the precise details of the mission before departure and it is possible to take into account the final itinerary ex post. Similarly, in the absence of additional costs, the applicant was not required to provide documents relating to his detours.
81 Third, the applicant points out that the amount of claimed daily allowance was no higher than the amount in the itinerary approved in the Mission Order.
82 Fourth, the applicant claims that he was not obliged to attach the boarding cards to his request for reimbursement. In his view, the boarding cards for his flights from Yerevan to Wrocław and from Wrocław to Moscow are not relevant, since he himself booked them and he does not seek reimbursement of the costs relating to those flights. He also claims that it was unnecessary to submit the boarding cards for the other flights, including the contested flight, because those flights had been booked through the approved travel agency of the Delegation to Russia. Under such circumstances, he argues, the boarding passes were not needed to verify the duration of the mission and to prove that the journey was made.
83 The EEAS disputes the applicant’s arguments.
84 It should be borne in mind that, according to Article 71 of the Staff Regulations, ‘an official shall be entitled, as provided in Annex VII, to reimbursement of expenses incurred by him … in the course of or in connection with the performance of his duties’.
85 According to Article 11 of Annex VII to the Staff Regulations:
‘1. An official travelling on mission and holding an appropriate travel order shall be entitled to reimbursement of travel expenses and to daily subsistence allowance in accordance with the following provisions.
2. The travel order shall state the probable duration of the mission …
3. … the reimbursement of mission expenses shall be limited to the cost of the most economical journey between the place of employment and the place of mission which does not require the official on mission to extend his stay significantly’.
86 Article 13(1) of Annex VII to the Staff Regulations provides that ‘the daily subsistence allowance for missions shall comprise a flat-rate sum to cover all expenses incurred by the person on mission’ and that ‘accommodation costs … shall be reimbursed up to a maximum …, on production of supporting documents’.
87 Article 13a of Annex VII to the Staff Regulations gives the appointing authorities of the various institutions the power to lay down detailed rules for the application of Articles 11 to 13 thereof. In accordance with that provision, the Commission adopted the Guide to Missions. By decision of the High Representative of the Union for Foreign Affairs and Security Policy of 17 December 2010, the Guide to Missions was made applicable to the EEAS.
88 In the first place, as regards the applicant’s argument that, if he had taken the contested flight, he would have returned to Moscow after 23.00, it should be noted that Chapter 7 of the Guide to Missions provides as follows:
‘…
Staff going on mission cannot be obliged, either at the place of employment or at the place of mission, (not including the extra time added for the purposes of calculating the allowances) to:
…
– arrive at the place of employment after 23.00 …
…’
89 It follows that Chapter 7 of the Guide to Missions does not preclude the possibility that the planned itinerary for a mission might include a return flight landing after 23.00, but provides that that possibility depends on the consent of the staff going on mission. In the present case, as the applicant has acknowledged, he gave his consent to the flight at issue when the Yerevan Mission Order was being prepared, stating that he wished to avoid any tension with his superiors which might lead to a refusal to authorise the mission. Already at that time, however, he had been considering not taking the flight in question and making a detour for private reasons, as the note of 27 July 2018 shows. Consequently, the applicant’s reliance on Chapter 7 of the Guide to Missions is manifestly unfounded in law.
90 In the second place, as regards the applicant’s other arguments, it should be recalled that Chapter 11 of the Guide to Missions provides as follows:
‘Immediately on your return from mission, you must draw up a statement of mission expenses …
…
Original supporting documents to be attached to the statement of expenses[:]
…
For missions by air, original boarding cards must be attached to statements of expenses. Passenger receipts will be required if a detour has been made for private reasons, if you have paid for the air ticket yourself and in the case of any dispute with an airline.
Failure to comply with these provisions will delay reimbursement of the expenses incurred. The actual routes and departure and arrival times of the transport used should be indicated.’
91 In the present case, the applicant, in his declaration of mission expenses relating to the reimbursement of, inter alia, the transport costs relating to the originally scheduled flights, including the contested flight, mentioned the times of the flights which he had taken, which excluded the contested flight and included the flight, booked by himself, between Yerevan and Wrocław. He did not attach to his statement the boarding cards for either the contested flight or the other flights.
92 Although the applicant did not request reimbursement of expenses in excess of those in the itinerary indicated in the Mission Order, the fact remains that he was required to submit to the administration all the supporting documents, including boarding cards, that would allow it to reconstruct his journeys with certainty. In accordance with the principle of sound financial management and the principle of good administration, the appointing authority is required to check whether the official going on mission carried out that mission in accordance with the itinerary indicated in the Mission Order and, if not, to ask that official to state the reasons why he or she did not follow that itinerary. The need for such a check is not mitigated by the fact that the official concerned ultimately followed another, less expensive route, and that he does not seek reimbursement of the costs relating to that other route. By changing the itinerary, that official caused the appointing authority to incur costs which could have been avoided if he had informed it in good time of his intention to change the scheduled itinerary.
93 It follows that the EEAS, when it refused, in the decision of 30 November 2018, to grant the contested request for reimbursement, on the ground that the applicant had not provided all the necessary documentation, correctly applied the relevant provisions, read in the light of the principles of sound financial management and of good administration. The EEAS also complied with the principle of proportionality, since the refusal to grant a request in a case where the conditions laid down by the applicable legislation are not met cannot be regarded as going beyond what is appropriate and necessary for achieving the aim pursued by those provisions.
94 Therefore, it must be held that the plea relied on in the application manifestly lacks any foundation in law.
The new pleas in law and new evidence
95 As is apparent from paragraph 16 above, on 24 February 2021, the applicant relied on new pleas in law and produced new evidence, the admissibility of which is disputed by the EEAS.
96 It should be noted that, in so far as those pleas and that evidence relate to the rejection of the request for assistance, there is no need to examine their admissibility or their merits, since the action is inadmissible in so far as it seeks the annulment of the decision leading to that rejection (see paragraph 61 above).
97 In so far as those pleas and evidence relate to the rejection of the request for reimbursement, it is appropriate, in the interests of procedural economy, to rule directly on the substance of the case, without first ruling on the objection raised by the EEAS (see, to that effect and by analogy, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52).
98 The applicant, relying on the new evidence at issue, raises two new pleas in law, alleging, first, a failure on the part of EU officials to maintain impartiality and objectivity resulting in an infringement of Articles 11 and 11a of the Staff Regulations, and, second, a misuse of powers. That evidence, he submits, also supports his plea alleging a manifest error of assessment, since it demonstrates that the decision-making process concerning the missions at issue was vitiated by psychological harassment on the part of the officials involved in that process and that, in any event, the specific obstructive behaviour of those officials was not accidental but was the result of prejudice towards the applicant and of bias on the part of his hierarchical superiors in treating him harshly.
99 In essence, the applicant claims that the evidence which he has produced proves that, when the decision of 30 November 2018 was taken, the EEAS was aware of the accusations of conjugal violence made against him by his wife and that that fact had led the EEAS administration to treat him particularly severely in an attempt to harm him.
100 It must be borne in mind that the concept of misuse of powers encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision will be vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated. In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged (see judgment of 18 November 2020, H v Council, T‑271/10 RENV II, EU:T:2020:548, paragraph 48 and the case-law cited).
101 It should be noted that, as is apparent from the considerations set out in paragraphs 84 to 93 above, the rejection of the request for reimbursement is the result of a correct application of the relevant provisions and general principles. Therefore, even if the evidence produced by the applicant were to show that the EEAS was aware of the accusations of conjugal violence made against him by his wife, it does not follow that that rejection is the consequence of a misuse of powers.
102 Similarly, the considerations set out above also rule out the possibility that the rejection of the request for reimbursement was the result of a lack of impartiality or objectivity contrary to Article 11 of the Staff Regulations, which should have led those officials to refrain from taking any decision concerning him, in accordance with Article 11a of the Staff Regulations.
103 Consequently, without it being necessary to rule on their admissibility, which is disputed by the EEAS, the pleas and arguments which the applicant, relying on new evidence, has put forward in support of his claim for annulment of the decision rejecting his request for reimbursement must be rejected as manifestly lacking any foundation in law.
104 In the light of all of the foregoing considerations, the applicant’s claim for annulment must be rejected as in part inadmissible and in part manifestly lacking any foundation in law.
The claim for damages
105 The claim for damages submitted in the application relates to compensation for the damage allegedly suffered by the applicant as a result of ‘his hierarchy’s misconduct to his detriment’ and the rejection by the appointing authority of the request for reimbursement and the request for assistance. In the reply, the applicant relied on a further form of damage, resulting from the ‘usurping powers’ exercised by the EEAS, in that it ruled on the request for assistance without being competent to do so.
106 In the first place, as regards the damage allegedly caused by the rejection of the application for reimbursement and the application for assistance, it should be recalled that, according to settled case-law, a claim for compensation for damage must be dismissed where there is a close connection between that claim and a claim for annulment, which has itself been dismissed as unfounded or inadmissible (see judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 112 and the case-law cited).
107 In the present case, in accordance with that case-law, the claim for compensation for damage caused by the rejection of the request for assistance and of the request for reimbursement must be rejected. As pointed out in paragraphs 61 and 103 above, the applicant’s claims for annulment of the decisions which led to those rejections are inadmissible or manifestly lacking any foundation in law.
108 In the second place, as regards the damage that the applicant claims to have suffered as a result of ‘his hierarchy’s misconduct to his detriment’, it must be borne in mind that, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for damages is admissible only if it has been preceded by a pre-litigation procedure in accordance with the provisions of the Staff Regulations (see judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 123 and the case-law cited).
109 That procedure differs according to whether the harm in respect of which reparation is sought results from an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which is not in the nature of a decision. In the first case, it is for the person concerned to submit to the appointing authority, within the prescribed time limits, a complaint directed against the act in question, it being open to that person to submit the claim for damages either in that complaint or for the first time in the application, whereas, in the second case, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation, and be continued, if necessary, by a complaint directed against the decision dismissing the request (see judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 124 and the case-law cited).
110 It should be noted that the damage referred to in paragraph 108 above is likely to originate not in a decision-making act but in conduct on the part of the administration, with the result that it is covered by the second case referred to in paragraph 109 above. However, in order to seek compensation for that damage, the applicant did not initiate the two-stage pre-litigation procedure which is required by the case-law in regard to such damage. The claim for compensation in respect of the damage at issue must therefore be rejected as being manifestly inadmissible.
111 In the third place, as regards the damage alleged in the reply, resulting from the ‘usurping powers’ exercised by the EEAS, in so far as it is claimed that it decided on the request for assistance without being competent to do so, it should be recalled that, according to settled case-law, in civil service matters, in order for the European Union to incur liability, a number of conditions must be satisfied: the conduct alleged against the institution, body, office or agency must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage complained of. These three conditions are cumulative, with the result that, if one of them is not met, the European Union cannot be held liable (see, to that effect, judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 97 and the case-law cited).
112 In the present case, first, it must be held that, even though the period for bringing proceedings under Article 91 of the Staff Regulations against another defendant has expired, the applicant has not in any way explained why he could not bring the present action against both the EEAS and the Commission, despite the fact that the appointing authority of the latter was the one that took the decision of 28 June 2019.
113 Second, the applicant does not put forward any argument to explain how the fact that the EEAS lacked competence to process his request for assistance would have entailed a new administrative burden in his defence, which affected the process of his recovery and, therefore, caused harm to his career. On the contrary, the applicant was able to challenge the rejection of his request for assistance by lodging a complaint, which led to the adoption of the decision of 28 June 2019 by the competent appointing authority. Consequently, since the applicant has not in any way substantiated the existence of damage or of a causal link between that damage and the alleged illegality, the claim for compensation in respect of that damage must be rejected as manifestly lacking any foundation in law, without it being necessary to rule on its admissibility, which is disputed by the EEAS (see paragraph 20 above).
Costs
114 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the EEAS.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed.
2. ZU shall pay the costs.
Luxembourg, 11 November 2021.
E. Coulon | | R. da Silva Passos |