Case T‑486/21
OE
v
European Commission
Judgment of the General Court (Fourth Chamber), 7 September 2022
(Civil service – Officials – Teleworking – Claim for reimbursement of telephone and internet connection expenses – Claim rejected – Plea of illegality – Partial admissibility – Article 71 of and Annex VII to the Staff Regulations – Duty to have regard for the welfare of officials – Principle of equality and non-discrimination – Right to respect for private life)
1. Judicial proceedings – Intervention – Plea of inadmissibility not raised by the defendant – Inadmissibility – Absolute bar to proceeding with a case – Examination by the Court of its own motion
(Rules of Procedure of the General Court, Arts 129 and 142(1) and (3))
(see paragraphs 28-31)
2. Actions brought by officials – Plea alleging infringement of the principle of equal treatment – Burden of proof – Reversal of the burden of proof – Conditions
(Staff Regulations, Art. 1d(5))
(see paragraphs 40-45, 99)
3. Actions brought by officials – Plea of illegality – Incidental nature – Plea raised as the principal issue in the main proceedings – Admissibility
(Art. 277 TFEU)
(see paragraph 52)
4. Officials – Reimbursement of expenses – Scope – Professional expenses arising from teleworking arrangements imposed to deal with the COVID-19 pandemic – Exclusion – Obligation for the EU legislature to provide for reimbursement of those expenses – None – Autonomy of the institutions to adopt different reimbursement measures with regard to their officials
(Staff Regulations, Art. 71 and Annex VII)
(see paragraphs 55-63, 65, 67-72)
5. Officials – Duty of the administration to have regard for the welfare of officials – Scope – Judicial review – Limits
(see paragraphs 75-80)
6. Actions brought by officials – Pleas in law – Plea alleging infringement of the principle of equal treatment – Allegation of discrimination owing to the differences between the measures adopted by the institutions in connection with the teleworking arrangements imposed to deal with the COVID-19 pandemic – Rejected
(Staff Regulations, Arts 90 and 91)
(see paragraphs 105-107)
7. Officials – Reimbursement of expenses – Professional expenses arising from teleworking arrangements imposed to deal with the COVID-19 pandemic – Decision refusing a claim for internet access to offset those expenses – Infringement of the right to respect for private and family life – Assessment criteria
(Charter of Fundamental Rights of the European Union, Arts 7 and 52(1))
(see paragraphs 109-111)
8. Officials – Non-contractual liability of the institutions – Conditions – Damage – Burden of proof
(see paragraphs 121-124)
Résumé
On 17 March 2020, people living in Belgium were placed under lockdown owing to the COVID-19 pandemic.
The applicant, an official of the European Commission at the material time, was therefore required, like nearly all the staff of that institution, to perform her duties via teleworking from that date.
As she considered that the additional telephone and internet expenses incurred during the months of September and October 2020 were due to the teleworking arrangements decided by the Commission, she submitted a claim seeking, in essence, first, reimbursement of those expenses and, second, professional internet access.
By decision of 18 December 2020 (‘the contested decision’), the Commission’s Office for Infrastructure and Logistics in Brussels (OIB) rejected that claim, on the ground that the rules for reimbursing expenses incurred for home office equipment did not include internet and telephone call expenses.
Since the complaint submitted by the applicant against the contested decision had been rejected, she brought an action for annulment before the General Court.
By its judgment, the General Court dismisses the action and rules for the first time on the possible reimbursement of costs incurred by the officials and servants of the European Union in connection with the teleworking arrangements imposed in order to deal with the COVID-19 pandemic.
Findings of the Court
The Court begins by examining the plea of illegality raised by the applicant against Article 71 of and Annex VII to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’); that article provides for the right to reimbursement of professional expenses incurred by an official under the conditions set out in that annex.
When considering whether that plea is admissible, it focuses on a first plea of inadmissibility, relating to the lack of precision of that plea. Although it declares that the applicant’s first argument, alleging that those two provisions are inappropriate having regard to the circumstances arising from the COVID-19 pandemic, the same does not apply to the second argument, alleging that there was a difference in treatment between officials.
Accordingly, the General Court points out that the principle of equality requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. Moreover, when provisions of the Staff Regulations are involved and in the light of the broad discretion which the EU legislature enjoys in that regard, there is a breach of that principle only where the legislature makes a distinction which is arbitrary or manifestly inappropriate in relation to the objective pursued by the legislation at issue. Therefore, it is, in principle, for the applicant to prove that she has been treated differently from other persons in a comparable situation and that that differentiation is arbitrary or manifestly inappropriate. However, in the present case, the applicant has not identified either the financial benefits she seeks, or the categories of officials which should be compared, or adduced evidence to show that the alleged differentiation is arbitrary or manifestly inappropriate.
That conclusion is not called into question by invoking Article 1d(5) of the Staff Regulations, which provides for the burden of proof to be shifted, in that the onus is on the institution to prove that there has been no breach of the principle of equal treatment where officials, who consider themselves wronged because the principle of equal treatment has not been applied to them, establish facts from which it may be presumed that there has been discrimination. That provision applies to an infringement of the principle of equality resulting from the application of the Staff Regulations and is not intended to apply when the alleged infringement stems from the Staff Regulations themselves.
Rejecting a second plea of inadmissibility, alleging disregard for the incidental nature of pleas of illegality, the General Court states that the incidental nature of the plea of illegality does not prevent it being raised as the main argument in an action, the other pleas being raised only in the alternative.
However, the General Court rejects that plea of illegality on the merits. Accordingly, it points out that the EU legislature could not foresee the COVID-19 pandemic and the necessity, in order to deal with it, of introducing teleworking arrangements when it last amended the substance of the Staff Regulations in 2013. (1) Nevertheless, any legislature must verify that the rules it has set out still meet the needs for which they were conceived and amend those which are no longer appropriate to the new context in which they have to take effect. The legislature therefore has a wide margin of discretion when carrying out that verification, and when amending, if necessary, the Staff Regulations.
However, in this case, the applicant fails to provide arguments or sufficient evidence which, in the light of that wide margin of discretion, clearly show that Article 71 of and Annex VII to the Staff Regulations are inappropriate or that the legislature has any obligation to amend them. Moreover, even if reimbursement of professional expenses arising from teleworking arrangements is required, it is necessary to take into consideration the complexity of the process of amending the Staff Regulations, the subsequent long periods needed for implementing the improvements to the legislation and the context of the urgent restrictions needed to deal with the COVID-19 pandemic at the time the contested decision was adopted. In the light of those considerations, the EU institutions cannot be criticised for not having amended the Staff Regulations during that pandemic particularly since those institutions adopted emergency measures.
As regards the plea alleging, in the alternative, infringement of Article 71 of the Staff Regulations, in that the decision rejecting the claim concluded that that provision does not provide for the reimbursement of internet and telephone expenses, the General Court points out that, although that article is indeed designed to prevent officials bearing, on their own, the expenses connected with the performance of their duties, it is under the conditions set out in Annex VII to the Staff Regulations, exhaustively listing the reimbursable financial activities, that reimbursement of expenses is due. Moreover, contrary to what the applicant maintains, neither the decision of the European Economic and Social Committee (EESC) of 9 June 2021 granting its staff a monthly allowance to cover the costs generated by teleworking, nor the Commission’s Guidelines on teleworking during the COVID-19 pandemic, which provide for the reimbursement, subject to conditions, of expenses linked to the purchase of home office equipment, contradict the restrictive nature of those provisions. Indeed, although the principle of unicity of the civil service means that all officials and servants of the European Union are subject to a single set of Staff Regulations and must therefore have Article 71 of and Annex VIII to those regulations applied to them in the same way, that principle does not mean that the institutions have to make identical use of the discretion accorded to them under those Staff Regulations. On the contrary, the principle of autonomy enjoyed by the institutions, as employers, in the management of their staff, may reasonably justify the differences between the limited measures which they adopted in order to avoid the members of their staff bearing, on their own, the expenses incurred in the performance of their duties while teleworking. That consideration is all the more relevant since those measures had to be adopted urgently in the exceptional circumstances connected with the comprehensive mandatory teleworking arrangements imposed by Member States in order to address the COVID-19 pandemic.
Regarding the plea alleging infringement of the principle of non-discrimination on the ground that the officials and servants of the EESC are treated more favourably, the General Court considers that the Commission’s Guidelines on teleworking and the EESC decision of 9 June 2021 reflect the principle of autonomy with regard to how their officials are treated in the exceptional situation connected with the COVID-19 pandemic, so that the differences between the measures taken by the institutions, bodies, offices or agencies of the European Union cannot be invoked in support of the plea alleging infringement of the principle of equal treatment.
As for the plea alleging infringement of the right to respect for private life enshrined in Article 7 of the Charter of Fundamental Rights of the European Union, the General Court points out that whether or not that right is limited must be assessed in the light of its actual impact on the person concerned and that there can be no interference in the exercise of a right when the relationship between that right and the measure at issue is, as in the present case, too indirect or random to be taken into consideration. In that connection, the applicant merely states, without producing any evidence, that the contract which she signed with her access provider limited internet access to private and personal use and that that prohibition inevitably has repercussions on her right to respect for her private life and her home.
To conclude, the General Court dismisses the claim for compensation for the non-material damage allegedly suffered by the applicant, in the absence of sufficient evidence as to the existence or the extent of the damage alleged.