(Case T‑170/17)

European Commission

Judgment of the General Court (Second Chamber), 8 May 2019

(Civil service — Officials — Article 42c of the Staff Regulations of Officials — Placement on leave in the interests of the service — Automatic retirement — Interest in bringing proceedings — Admissibility — Scope of the law — Literal, contextual and teleological interpretation)

Actions brought by officials — Interest in bringing proceedings — Action for annulment of a decision placing the applicant on leave in the interests of the service — Automatic retirement of the applicant during the proceedings — Interest in bringing proceedings retained

(Staff Regulations of Officials, Arts 24c, 90 and 91)

(see paragraphs 39-42)
Officials — Leave — Placement on leave in the interests of the service — Scope — Officials who have reached pensionable age — Precluded

(Staff Regulations of Officials, Art 42c; European Parliament and Council Regulation No 1023/2013, Recital 7)

(see paragraphs 59, 63, 64, 66-72)

Résumé

In its judgment in RW v Commission (T‑170/17), delivered on 8 May 2019, the General Court upheld the application of a former official seeking annulment of a decision of the Commission to place him on leave in the interests of the service pursuant to Article 42c of the Staff Regulations of Officials of the European Union and, at the same time, automatically retire him pursuant to the fifth paragraph of that provision. In that regard, the General Court has been called upon to rule on the scope ratione personae of Article 42c of the Staff Regulations of Officials in order to answer the question as to whether that provision may be applied to officials who have reached ‘pensionable age’ within the meaning of that provision, given that that application leads to those officials being placed on leave in the interests of the service and, at the same time, being automatically retired. To that end, the General Court carried out a literal, contextual and teleological interpretation of Article 42c of the Staff Regulations of Officials.

As regards, first of all, a literal interpretation of Article 42c of the Staff Regulations of Officials, the General Court held that it is clear from the wording of that article that leave in the interests of the service must have a certain duration, which precludes the possibility that the imposition of that leave may be concomitant with automatic retirement. Therefore, Article 42c of the Staff Regulations of Officials may not be applied to officials who have reached ‘pensionable age’.

Next, as regards the contextual interpretation of that provision, the General Court held that, by including Article 42c in Chapter 2 of Title III of the Staff Regulations of Officials, leave in the interests of the service was designed by the EU legislature to be an ‘administrative status’ which may be assigned to an official during his career in the EU institutions. It is therefore clear that the application of that article to an official who has reached ‘pensionable age’, thus entailing his being placed on leave in the interests of the service and automatically retired at the same time, as governed by Chapter 4 of Title III of the Staff Regulations of Officials, results in the transformation of the measure at issue from an ‘administrative status’ to circumstances of ‘termination of service’. According to the General Court, such an application appears to be an ‘automatic retirement in the interests of the service’ against the will of the interested party.

Lastly, as regards the teleological interpretation of Article 42c of the Staff Regulations of Officials, the General Court has held that its application in a situation such as that at issue in the main proceedings would deprive the official concerned of the benefit of the provisions laid down by the seventh and eighth paragraphs of that article, relating to the entitlements of officials to receive an allowance and to continue to contribute to the pension scheme during the period in which they are placed on leave in the interests of the service, since the duration of that leave would be zero. In those circumstances, the balance sought by the EU legislature, in adopting Article 42c of the Staff Regulations of Officials, between considerations relating to the optimal management of the human resources of the institutions and those relating to the adequate protection of the interests of the officials concerned, would be upset to the detriment of the latter considerations. In addition, automatic retirement at the same time as the imposition of leave in the interests of the service would automatically deprive the institutions, by removing all discretion from them, of the staff-management tool envisaged under the fourth paragraph of Article 42c of the Staff Regulations of Officials, that is the possibility of reinstating the official concerned in the service, while also depriving that official of the benefit of such reinstatement.