Keywords
Summary

Keywords

1. Officials - Secondment in the interests of the service - Power of the appointing authority to terminate prematurely - Existence - Conditions

(Staff Regulations, Arts 37, first para. (a), and 38(b))

2. Officials - Secondment in the interests of the service - Request to terminate prematurely by the service to which seconded - Discretion of the appointing authority - Scope

(Staff Regulations, Art. 38)

3. Officials - Secondment in the interests of the service - Decision terminating prematurely - Respect for the rights of the defence - Obligation to hear person concerned before adopting decision which must be observed even in the absence of an express provision - Limits

(Staff Regulations, Art. 38)

4. Officials - Decision having an adverse effect - Obligation to hear person concerned before adopting decision - Failure to observe - Irregularity having a particular impact on the content of the decision - Infringement of the rights of the defence - Judicial review - Scope

5. Officials - Actions - Actions for compensation brought without a pre-litigation procedure consistent with the Staff Regulations - Inadmissible

(Staff Regulations, Arts 90 and 91)

Summary

1. Articles 37 and 38 of the Staff Regulations do not expressly provide that the appointing authority may terminate a secondment in the interests of the service before expiry of the period initially envisaged. However, Article 38(b) of the Staff Regulations, which provides that the duration of secondment in the interests of the service is to be determined by the appointing authority, must be interpreted in the light of the fact that the interests of the service form part of the very essence of secondment provided for in subparagraph (a) of the first paragraph of Article 37 of the Staff Regulations and, accordingly, constitute an essential condition of its continuation. Consequently, where it proves necessary in order to ensure that secondment continues to be in the interests of the service, the appointing authority has at all times the power to alter the duration initially envisaged and, accordingly, to terminate the secondment before the end of that period.

That interpretation is necessary in order to ensure that Article 38(b) of the Staff Regulations does not lose all practical effect. Where secondment becomes incompatible with the interests of the service, in particular because the relations of mutual confidence between the official on secondment and the service to which or the person to whom he has been seconded no longer exist, the appointing authority's inability to terminate the secondment before the expiry of the period initially envisaged would be likely to harm the efficiency of that service or person and, more generally, the Community administration.

( see paras 48-51 )

2. The request by the service to which or the person to whom an official has been seconded that his secondment be terminated before the agreed time, although decisive in nature, does not mean that the appointing authority has no discretion in the matter and is required to comply with the request. When it receives such a request, the appointing authority is required at the very least to ascertain, neutrally and objectively, whether the minimum requirements for the adoption of such a decision are satisfied, that is to say, whether the request is beyond all doubt the valid expression of the service to which or the person to whom the official was seconded and also that it is not based on manifestly illegal grounds.

That conclusion is not altered by the fact that the request originates in a political group of the European Parliament and because it seeks to terminate the secondment of an official to the post of Secretary-General of that group.

( see paras 81-82 )

3. The fact that the Staff Regulations do not expressly provide that an official who has been seconded in the interests of the service must be consulted before a decision terminating his secondment before the expiry of the period initially envisaged is adopted does not mean that the appointing authority was under no such obligation.

The principle of respect for the rights of the defence in any procedure initiated against a person which may culminate in an act adversely affecting him is a fundamental principle of Community law which must be observed even in the absence of an express provision to that effect in the rules governing the procedure in question.

The fact that a complaint procedure is provided for in Article 90 of the Staff Regulations does not as such suffice to preclude the existence of an obligation on the appointing authority to hear the official concerned before adopting a decision adversely affecting him. It is an absolute requirement of the principle of respect for the rights of the defence that the person concerned be heard before the decision adversely affecting him is adopted. It is only in special circumstances where it is impossible in practice or incompatible with the interests of the service to consult the official concerned before adopting the contested decision that the requirements of the principle of respect for the rights of the defence may be satisfied by a hearing shortly after the adoption of the contested decision.

( see paras 86, 90, 94-95 )

4. The principle of respect for the rights of the defence is infringed where it is established that the person concerned was not given a proper hearing before the act adversely affecting him was adopted and where it cannot be reasonably precluded that that irregularity could have had a particular impact on the content of that act. The possibility that a preliminary consultation might have a particular impact on the content of an act adversely affecting the person concerned cannot be reasonably precluded unless it is established that the person adopting the act has no discretion and is required to act as he did.

It is not for the Community judicature to ascertain whether there were any factors capable of having a particular impact on the content of the act having an adverse effect since such an examination necessarily means that it would take the place of the administrative authority and anticipate the result the latter would reach if it heard the person concerned before possibly adopting that act, which is not permissible.

( see paras 112-113, 115 )

5. In the system of remedies established by Articles 90 and 91 of the Staff Regulations, an action for compensation, which is an independent remedy by comparison with the action for annulment, is admissible only if it has been preceded by a pre-litigation procedure consistent with the provisions of the Staff Regulations. 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 conduct on the part of the administration which is not in the nature of a decision. In the former case, the person concerned must submit a complaint against the act in question to the appointing authority within the prescribed period. In the latter case, on the other hand, the administrative procedure must commence with the introduction of a request within the meaning of Article 90(1) of the Staff Regulations for reparation and, where appropriate, be followed by a complaint against the decision rejecting the request.

( see para. 131 )