Case T‑843/19

Paula Correia

v

European Economic and Social Committee

Judgment of the General Court (Fourth Chamber), 28 April 2021

(Civil service – EESC staff – Members of the temporary staff – Refusal to regrade – Action for annulment – Time limit for complaints – Burden of proving expiry of the time limit – Act adversely affecting an official – Admissibility – Equal treatment – Legal certainty – Action for damages – Non-material damage)

1. Actions brought by officials – Time limits – Complaint lodged out of time – Burden of proof – Non-publication of the contested decision

   (Staff Regulations, Art. 91(3); Conditions of Employment of Other Servants, Art. 46)

   (see paragraphs 23, 40)

2. Actions brought by officials – Prior administrative complaint – Time limits – Point from which time starts to run – Knowledge of the content of a decision on the part of the addressee – Burden of proof – Proof obtained from an email drawn up by the person concerned

   (Staff Regulations, Art. 90(2); Conditions of Employment of Other Servants, Art. 46)

   (see paragraphs 24, 30-33)

3. Actions brought by officials – Act adversely affecting an official – Meaning – Proposal for regrading of a member of the temporary staff – Preparatory act – Not included

   (Staff Regulations, Arts 25 and 90(2); Conditions of Employment of Other Servants, Arts 11 and 46)

   (see paragraphs 38, 39)

4. Officials – Members of the temporary staff – Regrading – Administration’s discretion – Limits – Compliance with the principles of equal treatment and legal certainty – Failure to put evaluation material in place to enable a comparison of merits – Breach of the principle of equal treatment – Justification on the basis of budgetary and political considerations – None

   (Conditions of Employment of Other Servants, Arts 10(3), and 16, first para.)

   (see paragraphs 54-60, 73, 74, 80)

5. Officials – Members of the temporary staff – Regrading – Non-publication of regrading decisions – Breach of the obligation of transparency

   (Staff Regulations, Art. 25, third para.; Conditions of Employment of Other Servants, Art. 11)

   (see paragraphs 61-63)

6. Actions brought by officials – Pleas in law – Plea based on an infringement of the principle of equal treatment – Defendant relying on a practice compliant with that principle – Burden of proof where there are numerous indications to the contrary

   (Conditions of Employment of Other Servants, Art. 10(3))

   (see paragraphs 68, 69)

7. Actions brought by officials – Actions for damages – Annulment of the unlawful act not capable of ensuring adequate compensation for the non-material damage sustained – Non-material damage caused by refusal to regrade a member of the temporary staff

   (Art. 340 TFEU)

   (see paragraphs 86-88)

Résumé

In September 2000, the applicant was recruited by the European Economic and Social Committee (EESC) – a consultative body representing European organisations of employers, employees and other participants in civil society – as a member of the temporary staff, under a contract for an indefinite period. In the course of her career at the EESC, the applicant was regraded on only two occasions, most recently in 2016.

On 10 July 2019, the applicant brought a complaint against the decision not to regrade her in a higher grade in the 2019 regrading process (the ‘contested decision’).

After that complaint was rejected, the applicant brought an action before the General Court, seeking annulment of the contested decision and an award of damages in the sum of EUR 2000 by way of compensation for the non-material damage suffered.

The Court annulled the contested decision, which had been adopted on a date unknown to the applicant, and ruled for the first time on the issue of regrading of members of the temporary staff, in the absence of clear, objective and transparent criteria or evaluation material. It held, in that regard, that the absence of such criteria or material is liable to undermine the principles of equal treatment and legal certainty, and consequently the rights of members of the temporary staff assigned to the institutions, bodies, offices and agencies of the European Union who are eligible for regrading. The Court also ordered the EESC to pay the applicant the claimed sum of EUR 2000 in respect of the non-material damage she suffered.

Findings of the Court

The Court observed, first of all that, in respect of a decision relating to a specific individual, evidence of the point at which the person concerned had knowledge of such a decision, which marks the beginning of the periods for submitting a complaint and bringing an action, as laid down in Articles 90 and 91 of the Staff Regulations of Officials of the European Union (the ‘Staff Regulations’), may be obtained from circumstances other than formal notification of that decision. In that regard, while mere circumstantial evidence suggesting that the decision was received is not sufficient, such evidence may be obtained from an email from the person concerned from which it is undoubtedly clear that he or she had had effective knowledge of the decision before the date alleged.

The Court also observed that the acts or decisions in respect of which an action for annulment may be brought are limited to those measures which produce binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in his or her legal position. Where the acts or decisions in question are formulated in several stages, for example in the course of an internal procedure such as that relating to the procedure for regrading of members of the temporary staff, the only acts which can be challenged are the measures definitively determining the position of the institution at the conclusion of that procedure. By contrast, the intermediary measures whose purpose is to prepare the final decision are not acts adversely affecting an official for the purposes of Article 90(2) of the Staff Regulations and can be challenged only incidentally in an action against the acts capable of being annulled. In that regard, it is only when the duly published list of regraded members of the temporary staff is established that the legal position of members of the temporary staff eligible for regrading can be affected.

Next, as regards the lack of any decision adopting rules for the regrading of members of the temporary staff within the EESC, the Court noted that, while the EU institutions are not obliged to adopt one particular appraisal and regrading system rather than another, any regrading procedure must be carried out in accordance with general principles of law such as the principles of equal treatment and legal certainty. Compliance with the principle of equal treatment requires the institution, body, office or agency of the European Union to ensure that it has a set of evaluation material, for example staff reports, available to provide the basis for its assessment of merits, so as to avoid arbitrariness and ensure equal treatment of candidates eligible for promotion. The Court added that considerations of a budgetary nature or relating to the ‘eminently political’ nature of the body in question cannot release it from that obligation.

Furthermore, the Court indicated that the failure of the EESC to publish regrading decisions, in accordance with the third paragraph of Article 25 of the Staff Regulations, infringes the principle of legal certainty and the obligation of transparency, which is a corollary of the principle of equal treatment, intended to enable the impartiality and non-arbitrariness of the administration to be reviewed. Consequently, the EESC’s non-publication of regrading decisions is not only contrary to the Staff Regulations, but also infringes the rights of members of the temporary staff assigned to the secretariats of the various EESC groups, in that it prevents review of the impartiality of the administration in relation to a regrading procedure.

Lastly, in relation to the claim for damages, the Court found that, in the present case, the annulment of the contested decision cannot, in itself, constitute full compensation for the non-material damage suffered by the applicant, and particularly her feelings of uncertainty as regards her career development. It is impossible to predict the nature of the evaluation material which could be adopted by the EESC, and difficult to determine how the applicant’s performance could be assessed in the light of that material. Thus, whatever system the EESC may adopt by way of implementation of the judgment, doubt will remain as to the applicant’s prospects of retroactive regrading and, as the case may be, as to how she might have performed if the evaluation material to be used for the purposes of regrading had been defined from the outset.