Case T‑790/21

PL

v

European Commission

Judgment of the General Court (Ninth Chamber) of 15 November 2023

(Civil service – Officials – Reassignment in the interests of the service – Decision with retroactive effect adopted to comply with judgments of the European Union judicature – Article 266 TFEU – Articles 22a and 22c of the Staff Regulations – Failure to follow the pre-litigation procedure – Principle of good administration – Right to be heard – Principle of impartiality – Reasonable time – Duty to have regard for the welfare of officials – Liability – Non-material damage)

1. Officials – Organisation of departments – Assignment of staff – Reassignment – Administration’s discretion – Limits – Interests of the service – Reassignment of an official in the interests of the service because of relationship difficulties – Whether permissible

   (Staff Regulations of Officials, Art. 7(1))

   (see paragraphs 51-53)

2. Officials – Rights and obligations – Allegation of facts giving rise to a presumption of the existence of illegal activity or a serious failure to comply – Protection of the official having communicated such facts in his capacity as a whistle-blower – Obligation of the institutions to lay down internal rules on the handling of complaints made by whistleblowing officials – Scope

   (Staff Regulations of Officials, Art. 22a(3), Art. 22b and Art. 22c)

   (see paragraphs 55, 56, 58, 164-175)

3. Officials – Rights and obligations – Allegation of facts giving rise to a presumption of the existence of illegal activity or a serious failure to comply – Reassignment of the official having communicated such facts – Whether permissible – Condition – No link between the reassignment and the allegation made by the official concerned – Burden of proof

   (Staff Regulations of Officials, Art. 22a)

   (see paragraphs 57, 182-190)

4. Actions brought by officials – Judgment annulling a measure – Effects – Obligation to implement – Scope – Both the operative part and the grounds of the judgment to be taken into account – Annulment of a reassignment decision – Adoption of a new reassignment decision with retroactive effect – Whether permissible – Conditions

   (Art. 266 TFEU)

   (see paragraphs 80, 128-131, 133-139)

5. Fundamental rights – Charter of Fundamental Rights – Right to good administration – Requirement of impartiality – Concept

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

   (see paragraphs 100, 145)

6. EU law – Principles – Obligation to act within a reasonable time – Infringement in an administrative procedure – Effects

   (Charter of Fundamental Rights of the European Union, Art. 41(1))

   (see paragraphs 104, 105, 114, 235)

Résumé

The applicant, PL, was assigned as section head to a European Commission delegation in a third country, with effect from 16 February 2012. That section was the subject of investigations by the European Anti-Fraud Office (OLAF) opened in 2011 and 2013.

On 3 October 2012, the applicant informed his superiors of his concerns regarding alleged irregularities in the management and implementation of certain projects.

Following a number of complaints alleging inappropriate conduct on the part of the applicant and communication problems caused by him and his section, the applicant was reassigned, by decision of 19 December 2012, to the Commission’s headquarters in Brussels with effect from 1 January 2013 (‘the first reassignment decision’).

By judgment of 15 April 2015, the Civil Service Tribunal annulled the first reassignment decision on the ground of infringement of the applicant’s rights of defence. ( 1 ) A second reassignment decision, with the same scope and with retroactive effect, was annulled by the General Court on the ground that it had been adopted by an authority lacking competence, having regard to the protection conferred on the applicant by Article 22a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) in his capacity as a whistle-blower. ( 2 ) A third reassignment decision with retroactive effect was withdrawn by the Commission, although new proceedings were underway, to ensure that the General Court’s previous judgment would be properly complied with. ( 3 )

By decision of 16 February 2021 (‘the contested decision’), the Commission reassigned the applicant again with retroactive effect, with effect from 1 January 2013.

In his capacity as whistle-blower for the purposes of Article 22a of the Staff Regulations, the applicant lodged a complaint on the basis of Article 22c of the Staff Regulations, which sets out the framework for dealing with complaints submitted by whistle-blowers in the pre-litigation procedure. His complaint having been rejected in part, the applicant brought an action for annulment and damages before the General Court.

In dismissing the application for annulment, the Court interprets for the first time Article 22c of the Staff Regulations and examines compliance with the rules governing the burden of proof in the event of the reassignment of a whistle-blower.

The Court upholds in part the claim for damages and orders the Commission to pay the applicant the sum of EUR 3000 in respect of the non-material damage suffered as a result of the failure to fulfil the obligation to act within a reasonable time in administrative proceedings.

Findings of the Court

In the first place, as regards Article 22c of the Staff Regulations, the Court notes that that provision was introduced with the aim of imposing on each institution the obligation to lay down internal rules intended to provide guarantees to whistle-blowers, including a procedure for the handling of complaints concerning the way in which they were treated after or in consequence of the fulfilment by them of their obligations under Article 22a and 22b of the Staff Regulations. However, Article 22c does not require that all the rules applicable to whistle-blowers, including where they make complaints, be laid down in a single act.

In the present case, the Court finds that, contrary to what the applicant claims, the Commission has adopted specific rules on the handling of complaints made by whistle-blowers, in accordance with Article 22c of the Staff Regulations.

Under those rules, first of all, the Commission is committed to keeping the identity of the whistle-blower confidential and not to reveal his or her name to any person potentially implicated in the alleged wrongdoings or to any other person without a strict need to know, unless the whistle-blower personally authorises the disclosure of his or her identity, or this is a requirement in any subsequent criminal proceedings. ( 4 ) Next, those rules designate, in particular, the authority competent to adopt decisions to reassign an official who has reported irregularities, and the authority competent to decide on complaints made against those decisions. ( 5 ) In that regard, neither Article 22c of the Staff Regulations nor any other internal rule of the Commission requires the competent authority to act without the assistance of their departments when handling those complaints.

Furthermore, under those rules and if justified by the circumstances, complaints lodged on the basis of Article 22c of the Staff Regulations must be given a reasoned response within a time limit shorter than the time limits laid down in Article 90 of the Staff Regulations. ( 6 ) Moreover, access to the personal data contained in complaints may be granted only to authorised personnel with a strict need to know. It is also provided that complaints relating to sensitive issues should not be discussed during interdepartmental consultations. ( 7 )

Lastly, those rules provide that complaints made by whistle-blowers may be submitted using a covering form which refers to Article 22c of the Staff Regulations, so that the competent authority is able to identify immediately that the complaint in question is of a sensitive nature, and ensure that measures for the protection of whistle-blowers are applied. Thus, although the persons concerned must make themselves known to the institution as whistle-blowers, they are not obliged to describe the details of the irregularities reported in their complaints.

In the second place, as regards the rules on the burden of proof in the event of the reassignment of a whistle-blower, the Court points out that, under the Commission’s Guidelines on whistleblowing, it is up to the person taking any adverse measure against a whistle-blower to establish that the measure was motivated by reasons other than the reporting of irregularities.

In the present case, the Commission discharged its burden of proof by establishing that the reason for the applicant’s reassignment was not the whistleblowing report made by the applicant but the interpersonal problems with his colleagues and superiors which existed prior to that report.

In the third place, as regards the failure to comply with the reasonable time requirement, the Court finds that the particularly long duration of the administrative procedure which led to the adoption of the contested decision is due to a series of errors on the part of the administration. Although the failure to comply with the reasonable time requirement did not affect the actual content of that decision, it may have caused uncertainty and anxiety on the part of the applicant with regard to his situation, particularly since he relied on his status as a whistle-blower. In those circumstances, the Court upholds in part the applicant’s claim for compensation.

( 1 ) Judgment of 15 April 2015, PL v Commission (F‑96/13, EU:F:2015:29).

( 2 ) Judgment of 13 December 2018, PL v Commission (T‑689/16, not published, EU:T:2018:925).

( 3 ) By order of 25 November 2020, PL v Commission (T‑308/20, not published, EU:T:2020:571), the General Court held that the action brought by the applicant against the third reassignment decision had become devoid of purpose following its withdrawal.

( 4 ) Communication SEC (2012) 679 final of Vice-President Šefčovič to the Commission of 6 December 2012 on the Commission guidelines on whistleblowing (‘the Commission guidelines on whistleblowing’).

( 5 ) Commission Decision C(2013) 3288 of 4 June 2013 on the exercise of powers conferred by the Staff Regulations on the appointing authority (AIPN) and on the authority empowered to conclude contracts of employment (AHCC), as amended by Commission Decision C(2014) 9864 of 16 December 2014.

( 6 ) Under Article 90(2) of the Staff Regulations, the authority is to notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged.

( 7 ) Administrative Notice No 79-2013 of 19 December 2013 concerning the submission of requests under Article 90(1) of the Staff Regulations, complaints pursuant to Article 90(2) of the Staff Regulations and requests for assistance under Article 24 of the Staff Regulations.