JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

13 November 2014

Stéphane De Loecker

v

European External Action Service (EEAS)

‛Civil service — EEAS staff — Temporary staff — Head of delegation in a third country — Early cessation of the functions of head of delegation — Transfer to EEAS headquarters — Rights of the defence — Interests of the service — Statement of reasons’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr De Loecker essentially seeks annulment of the decision of 15 July 2013 by which the authority authorised to conclude contracts of employment of the European External Action Service (EEAS) transferred him, in the interests of the service, from his post in Bujumbura (Burundi) to a post in Brussels (Belgium).

Held:

The action is dismissed. Mr De Loecker is to bear his own costs and is ordered to pay those incurred by the European External Action Service.

Summary

1. Officials — Members of the temporary staff — Principles — Rights of the defence — Scope — Burden of proof

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

2. Officials — Members of the temporary staff — Decision affecting the administrative situation of a member of the temporary staff — Administrative investigation report — Obligation for the administration to place the report in the personal file of the staff member concerned — None — Obligation to forward the entire administrative investigation report to the staff member concerned — None

   (Staff Regulations, Art. 26 and Annex IX; Conditions of Employment of Other Servants, Arts 11 and 50a)

3. Officials — Members of the temporary staff — Organisation of departments — Assignment of staff — Reassignment in the interests of the service — Administration’s discretion — Limits — Interests of the service — Compliance with the principle of the equivalence of posts — Judicial review — Limits

   (Staff Regulations, Art. 7(1); Conditions of Employment of Other Servants, Arts 2(e) and 10(1))

4. Officials — Organisation of departments — Assignment to a post of head of an EU delegation — Reassignment in the interests of the service — Notification of final departure of a head of an EU delegation — Conditions

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

1.  Observance of the rights of the defence is a fundamental principle of EU law. The requirement that, for those rights to be observed, the person concerned must be given the opportunity to make his views known before a decision is adopted may be regarded as satisfied only if the official has been expressly informed of a proposed decision and invited to submit his observations. In that regard, the right of that person to be heard does not amount to the mere possibility of voicing his opposition, as such, to the proposed decision in the narrow sense, but entails the possibility of making observations capable of influencing the content of the proposed decision.

   Consequently, where a decision to reassign a member of the temporary staff of the European External Action Service (EEAS) to headquarters constitutes a measure adversely affecting him, it is for the EEAS, under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, to give that person a due hearing before adopting that decision. In that regard, it is for the EEAS to adduce evidence that the staff member has been given an opportunity properly to make his views known both on the possible decision to reassign him to headquarters immediately and on the reasons underlying that decision.

   (see paras 33, 34, 37)

   See:

   judgment in Marcuccio v Commission, C-59/06 P, EU:C:2007:756, paras 57, 58 and 70;

   judgment in Marcuccio v Commission, T-236/02, EU:T:2011:465, para. 116

   judgment in Delcroix v EEAS, F-11/13, EU:F:2014:91, para. 35 and the case-law cited therein

2.  It is not evident from Article 26 of the Staff Regulations, applicable to temporary staff by virtue of Article 11 of the Conditions of Employment of Other Servants, that once the report of an administrative investigation into an official has been communicated to him, the administration is required to insert it in his personal file. Furthermore, the provisions governing administrative investigations laid down in Annex IX to the Staff Regulations, entitled ‘Disciplinary proceedings’, which is applicable to temporary staff under Article 50a of the Conditions of Employment, also do not make it an obligation to communicate the whole of the investigation report to the person concerned. Firstly, under Article 1(3) and Article 2(1) of Annex IX, it is the decision to close an administrative investigation with no further action taken which may be inserted in the staff member’s personal file, provided that he expressly requests this. Secondly, Article 2(2) of Annex IX provides that the administration must inform the person concerned when the investigation ends and communicate to him only the conclusions of the investigation report. That provision also requires the administration to communicate to him, on request and subject to the protection of the legitimate interests of third parties, all documents directly related to the allegations made against him.

   (see paras 50, 51)

3.  The Union institutions have a wide discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks on condition, however, that the staff are assigned in the interest of the service and in conformity with the principle of the equivalence of posts. Having regard to the extent of the institutions’ discretion in evaluating the interests of the service, the review undertaken by the Civil Service Tribunal of whether the condition regarding the interests of the service has been respected must be confined to the question whether the authority authorised to conclude contracts of employment remained within reasonable limits and did not use its discretion in a manifestly incorrect fashion. In that regard, difficult internal relations, where they cause tension prejudicial to the proper functioning of the service, may justify, in the interests of the service, the transfer of an official in order to put an end to an administrative situation which has become intolerable. Moreover, such a reassignment, decided upon in the interests of the service, does not require the consent of the official in question.

   Furthermore, the role of diplomatic functions is to prevent tensions from arising and to smooth out any which do. In addition, such functions require the absolute confidence of those involved. Consequently, where that confidence is broken, for whatever reason, the official involved is no longer able to carry out those functions and, in order to prevent the criticisms of him from being extended to the whole of the service concerned, it is sound administrative management for the institution to remove him as quickly as possible. Those measures must also be taken where failings are identified in the management of the service by a head of a service with diplomatic tasks, as head of the delegation. It cannot be denied that such failings, where established, are detrimental to the proper functioning of the delegation.

   Moreover, where a staff member’s employment contract specifies the duties allocated to him and his place of employment, that does not affect the fact that his employment is subject to the Conditions of Employment of Other Servants. Consequently, in so far as the staff of the national diplomatic services employed as temporary staff under Article 2(e) of the Conditions of Employment are subject to those Conditions, the possibility for them to be reassigned is contained by implication in the employment contract they have signed with the institution and, provided that the two conditions described above (reassignment in the interest of the service and observance of the equivalence of posts) are satisfied, such a reassignment cannot constitute a breach of that contract.

   (see paras 59, 61-64, 96, 97)

   See:

   judgments in Hecq v Commission, C-116/88 and C-149/88, EU:C:1990:98, para. 22; and Ojha v Commission, C-294/95 P, EU:C:1996:434, paras 41 and 42

   judgment in Dejaiffe v OHIM, T-223/99, EU:T:2000:292, para. 53

   judgments in de Albuquerque v Commission, F-55/06, EU:F:2007:15, para. 55 and the case-law cited therein; and Plasa v Commission, F-52/08, EU:F:2009:54, para. 77

4.  It is clear from Article 221 TFEU and from Article 5 of Council Decision 2010/427 establishing the organisation and functioning of the European External Action Service (EEAS) that the delegations provide the Union’s diplomatic representation in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961.

   Article 10(2) of that Convention provides that prior notification of the final departure of members of a diplomatic mission must be given only where possible. In any event, Article 10(1) and Article 19(1) of the Convention provide only that any change in the diplomatic staff must be notified to the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed, but they do not require notification of the Head of State of the receiving State in person, or an audience with that Head of State.

   (see paras 103, 104)

   See:

   judgment in Delcroix v EEAS, EU:F:2014:91, para. 25