Hartwig Bischoff v European Commission (F-36/14)

Contents

Judgment of the European Union Civil Service Tribunal(Second Chamber)18 May 2015^note(Civil service — Officials — Automatic retirement — Article 23(1) of Annex XIII to the Staff Regulations — Retirement age — Refusal to extend the period of active service — Second paragraph of Article 52 of the Staff Regulations — Interests of the service)In Case F‑36/14,ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,Hartwig Bischoff, former official of the European Commission, residing in Brussels (Belgium), represented by C. Bernard-Glanz and A. Blot, lawyers,vEuropean Commission, represented by J. Currall and C. Ehrbar, acting as Agents,THE CIVIL SERVICE TRIBUNAL (Second Chamber)composed of K. Bradley (Rapporteur), President, H. Kreppel and M.I. Rofes i Pujol, Judges,Registrar: P. Cullen, Administrator,having regard to the written procedure and further to the hearing on 13 January 2015,gives the following

Judgment

1By application lodged at the Registry of the Tribunal on 18 April 2014, Mr Bischoff seeks annulment of the decision of the appointing authority of the European Commission (‘the appointing authority’) of 28 March 2014 rejecting his request for extension of his active service and hence confirming his automatic retirement with effect from 1 June 2014. Mr Bischoff also seeks compensation for the damage that has resulted or may result from that decision.

Legal context

2Article 52 of the Staff Regulations of Officials of the European Union, as last amended by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (‘the Staff Regulations’), provides:‘Without prejudice to the provisions of Article 50 [of the Staff Regulations], an official shall be retired:(a) either automatically on the last day of the month in which he reaches the age of 66,…However, an official may at his own request, and where the appointing authority considers it justified in the interests of the service, carry on working until the age of 67, or exceptionally, until the age of 70, in which case he shall be retired automatically on the last day of the month in which he reaches that age.…’

3However, Article 23(1) of Annex XIII to the Staff Regulations provides:‘When point (a) of [the first paragraph of] Article 52 of the Staff Regulations applies, and without prejudice to the provisions of Article 50 [of the Staff Regulations], an official in service before 1 January 2014 shall be retired automatically on the last day of the month in which he reaches the age of 65. …’

Background to the dispute

4The applicant joined the Commission Directorate-General (DG) for Enterprise and Industry on 1 June 1994. At the time he lodged his action he was an official in grade AD 12 and was working in the Space Policy and Space Research Unit of Directorate G, Aerospace, Maritime, Security and Defence Industries.

5As he was approaching the age of 65 in May 2014, the applicant requested authorisation, in a note sent to the Director-General of DG Enterprise and Industry on 8 January 2014, to continue working until May 2016 (‘the request to remain in active service’).

6By note of 6 February 2014 (‘the note of 6 February 2014’), the Director-General of DG Enterprise and Industry informed the applicant that he was of the view that the interests of the service did not warrant a favourable response to the applicant’s request and told him he was transmitting that request, together with his opinion, to DG Human Resources and Security (‘DG Human Resources’) the relevant appointing authority.

7By note of 10 February 2014 to the Director-General of DG Human Resources, the applicant challenged the opinion of the Director-General of DG Enterprise and Industry.

8By note of 28 March 2014, the Director-General of DG Human Resources informed the applicant that she considered that the Director-General of DG Enterprise and Industry had handled the applicant’s request to remain in active service according to the rules.

9By note of the same day, the Director-General of DG Human Resources informed the Director-General of DG Enterprise and Industry of her decision to give a negative response to the applicant’s request to remain in active service, thereby confirming his retirement on 1 June 2014 (‘the decision of 28 March 2014’ or ‘the contested decision’). The grounds for that decision were that programme management was increasingly being transferred to executive agencies and that staff numbers were being reduced, which had consequences for DG Enterprise and Industry, including in the area of space research.

10The applicant was informed of the decision of 28 March 2014 by a note of 7 April 2014 from the acting director of DG Enterprise and Industry (‘the note of 7 April 2014’).

11On 18 April 2014, the applicant lodged a complaint against ‘the decision … of 28 March 2014 …, together with the [note] of 7 April 2014 …’, and on the same day applied for suspension of operation of those two measures. That application was dismissed by order of the President of the Tribunal of 22 May 2014 in Bischoff v Commission (F‑36/14 R, EU:F:2014:112).

12By note of 21 May 2014, the applicant was informed of the decision of the Director-General of DG Human Resources to extend his active service until 30 June 2014. On 27 June 2014 the appointing authority decided to extend the applicant’s active service for a further month, until 31 July 2014. Lastly, by a third decision of 29 July 2014, annulled and replaced by a decision of 31 July 2014, his active service was extended until 30 September 2014. The ground for those decisions was that the applicant had applied for a post within the Support for Ukraine Group which the Commission was in the process of setting up.

13By decision of 25 July 2014, the appointing authority rejected the complaint (‘the decision rejecting the complaint’). The Tribunal was notified of that decision on 31 July 2014.

14By e-mail of 26 September 2014, the applicant was informed that his application for the post within the Support for Ukraine Group had been unsuccessful.

15By note of 30 September 2014, the applicant was informed that he would receive his retirement pension from 1 October 2014.

16By letter received at the Registry of the Tribunal on 31 October 2014, the applicant sought leave to amend his original claims so as to seek annulment of all the measures adopted by the Commission after his action had been lodged.

17By letter from the Registry of 14 November 2014, the parties were informed that the Tribunal reserved its decision on the applicant’s application of 31 October 2014. In the same letter, the Tribunal asked the applicant for some clarification of the claims contained in that application.

Forms of order sought and procedure

18In his application, the applicant claims that the Tribunal should:— annul the decision of 28 March 2014 together with the note of 7 April 2014;— award compensation for the damage that has resulted or may result from the decision of 28 March 2014 and the note of 7 April 2014;— order the Commission to pay the costs.

19In his letter of 31 October 2014, the applicant sets out claims for annulment of:— the decision rejecting the complaint;— the decision of 21 May 2014 authorising him to remain in active service until 30 June 2014;— the decision of 27 June 2014 authorising him to remain in active service until 31 July 2014;— the decision of 31 July 2014 authorising him to remain in active service until 30 September 2014;— the note of 30 September 2014 informing him that his pension would be paid from 1 October 2014.

20The Commission contends that the Court should:— dismiss the action;— order the applicant to pay the costs.

21At the hearing, the applicant withdrew his claims against the note of 7 April 2014.

Law

The claims contained in the letter of 31 October 2014

22Under Article 35 of the Rules of Procedure in force when the action was lodged, which, following amendment, became Article 50 of the Rules of Procedure, only the form of order set out in the originating application may be taken into consideration. Consequently, as a matter of principle, a party may not, without changing the subject-matter of the dispute, submit fresh claims or extend the subject-matter of existing claims in the course of the proceedings. Only where there is a new factor capable of affecting the subject-matter of the action, such as, in particular, the adoption during the proceedings of an act repealing and replacing the contested act, may an applicant amend his claims (judgment in Glantenay and Others v Commission, F‑23/12 and F‑30/12, EU:F:2013:127, paragraph 34).

23In the present case, so far as, first, the claim directed against the decision rejecting the complaint is concerned, that decision, adopted after the action was lodged, upholds the decision not to grant the request to remain in active service, whilst stating the reasons for that decision. In such a situation, it is indeed the legality of the initial act adversely affecting the applicant that must be examined, taking into consideration the reasons set out in the decision rejecting the complaint, which statement of reasons is expected to be the same as that of the initial act (see, to that effect, judgment in Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 57 to 59 and the case-law cited).

24In those circumstances, the claim directed against the decision rejecting the complaint lacks any independent content and the action must therefore be regarded as being directed against the contested decision, the reasons for which are clarified by the decision rejecting the complaint (see, to that effect, judgments in Eveillard v Commission, T‑258/01, EU:T:2004:177, paragraphs 31 and 32, and Buxton v Parliament, F‑50/11, EU:F:2012:51, paragraph 21).

25As regards, next, the claim directed against the decisions of 21 May, 27 June and 31 July 2014 authorising the applicant to remain in active service until 30 June, 31 July and 30 September 2014, respectively, clearly those decisions merely authorise the applicant to remain in active service for a total period of four months after the date on which, in the absence of those decisions, he would have been retired, namely, 1 June 2014, without affecting the decision rejecting the request to remain in active service. Those decisions, which do not adversely affect the applicant, have no effect on the subject-matter of the present case and the applicant’s request to amend his original claims must therefore be dismissed as far as they are concerned.

26Lastly, the same applies as regards the claim directed against the note of 30 September 2014. That note merely informs the applicant that, following the expiry of the effects of the decision extending his active service until 30 September 2014, his pension would be paid to him from 1 October 2014. Such a note does not have binding legal consequences liable to affect the applicant’s interests directly and immediately by significantly changing his legal situation and cannot therefore adversely affect him (see, to that effect, judgment in Pimlott v Europol, F‑52/06, EU:F:2007:210, paragraph 48 and the case-law cited). Consequently, the applicant’s application to amend his original claims must be rejected so far as the claim relating to the note of 30 September 2014 is concerned.

The claim for annulment of the contested decision

Arguments of the parties

27The applicant puts forward a single plea, divided into four parts: infringement of Article 52 of the Staff Regulations, manifest error of assessment, breach of the principle of sound administration and the duty to have regard for the welfare of staff, and infringement of Article 5 of the Staff Regulations.

28The applicant acknowledges that, in the context of a request made under the second paragraph of Article 52 of the Staff Regulations, the administration has broad discretion in determining what the interests of the service are; however, he contends that the interpretation of that concept should be compatible with ‘higher-ranking rules of law’, including, primarily, Article 52 of the Staff Regulations. In addition, the examination of the interests of the service should be carried out carefully and impartially and in accordance with the principle of equal treatment of officials. The administration should also take into account the interests of the official concerned and remain within reasonable limits.

29In the present case, according to the applicant, the appointing authority responsible for taking the decision on his request to remain in active service did not carry out such an examination of interests.

30In particular, so far as the interests of the service are concerned, the applicant challenges, first, the statement of reasons for the contested decision, which asserts that the policy of externalisation of the management of space research programmes is a ground for rejection of his request to remain in active service. In that regard, he points out that that policy has been in place since 2009. In addition, three new staff members were recruited to his former unit in February 2014. In the applicant’s view, the staff remaining in that unit after his retirement will find it difficult to manage by themselves all the work assigned to the unit, and the unit, in order to cope with its tasks under the 2014-15 work programme, will need staff like him who are highly qualified and experienced.

31Secondly, the applicant criticises the Commission for failing to take into account the fact that his request to remain in service had been supported by his Head of Unit and his Director, albeit that the latter’s support was subject to the proviso that his remaining in active service should be ‘neutral’ vis-à-vis the staffing plan.

32Thirdly, the applicant considers that the Commission failed to take into account the fact that his remaining in employment until 2016 would have no effect on the achievement of the objective of reducing staff by 5% in 2017.

33As for his personal interests, the applicant criticises the Commission for failing to take into account the fact that his remaining in active service would have enabled him to increase his pension rights significantly and bring them up from 40% of his final salary to approximately 50% of it, whilst enabling him to continue his working life, as he wanted to.

34Lastly, the applicant contends that the fact that the Director-General of DG Enterprise and Industry has never in the past granted a request to remain in active employment beyond the age limit, although such requests are approved much more readily in other directorates-general, raises the question of compliance with the principle of equal treatment of officials.

35The Commission contends that the plea should be rejected in its entirety.

Findings of the Tribunal

–Preliminary remarks

36Where the appointing authority takes into consideration the interests of the service when deciding on a request by an official to remain in active service beyond the compulsory retirement age laid down in subparagraph (a) of the first paragraph of Article 52 of the Staff Regulations, it has broad discretion and the Tribunal may declare unlawful the appointing authority’s assessment only if there has been a manifest error of assessment or misuse of powers (see, to that effect and by analogy, with regard to a decision to renew the contract of a member of the temporary staff, judgment in Commission v Macchia, T‑368/12 P, EU:T:2014:266, paragraph 49).

37In that regard, an error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings upheld by the administration in its decision implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid (judgments in BB v Commission, F‑17/11, EU:F:2013:14, paragraph 60, and DG v ENISA, F‑109/13, EU:F:2014:259, paragraph 44 and the case-law cited).

–Alleged failure to take into consideration the interests of the service

38In the present case, it is clear from the file that the Director-General of the directorate-general to which the applicant was assigned did examine the applicant’s request to remain in active service and informed him by note of 6 February 2014 of the reasons why he was of the view that the interests of the service did not warrant a favourable response to that request, as was stated in paragraph 6 above. Moreover, the Director-General of DG Human Resources did take the applicant’s request into account, endorsing the reasons stated by the Director-General of DG Enterprise and Industry. Lastly, the decision rejecting the complaint confirms and clarifies the analysis of the interests of the service carried out by the administration.

39Therefore, whilst the applicant claims that the appointing authority did not in this case carry out an ‘examination of the interests at issue’ according to the procedure laid down in the second paragraph of Article 52 of the Staff Regulations, his arguments have no basis in fact and must be rejected.

–Manifest error of assessment

40In order to demonstrate that the contested decision contains a manifest error of assessment, the applicant claims, first, that the policy of externalisation of the management of space research programmes is not a ground for rejection of his request to remain in active service.

41In the present case, it is clear from the note of 6 February 2014 that that policy meant that the role of the Commission services would be limited to oversight and space policy development, the day-to-day management of that policy being thenceforth entrusted to the Research Executive Agency and the European Space Agency. Furthermore, the note stated that it was necessary to carry out staff reduction and redeployment within DG Enterprise and Industry.

42The applicant merely states, first, that application of the externalisation policy had already begun in 2009. That fact, however, by no means indicates that that policy could not be a ground for a decision taken in 2014.

43The applicant states, secondly, that in February 2014 three new members of staff were recruited to his former unit. However, the fact that, as the applicant himself notes, those staff members had no experience in the field of space research and were recruited from the administrative, legal and political field is totally consistent with the statement by the Director-General of DG Enterprise and Industry that that directorate would be involved with oversight and development of space policy rather than the scientific aspects of that policy. Accordingly, this cannot be considered to prove the existence of a manifest error of assessment.

44Thirdly, the applicant points to his former unit’s high work load and argues that DG Enterprise and Industry needs his experience and professional qualities in order to meet the demands placed upon it.

45However, even if the applicant’s statements concerning the staffing of his former unit and its high work load were correct, assessment of the number of staff required for the proper operation of a unit is exclusively a matter for the appointing authority. The mere assertion by the applicant that ‘it will be nearly impossible for the existing staff to accomplish’ the duties entrusted to the unit by no means points to the existence of a manifest error of assessment of the interests of the service.

46The same applies as regards the applicant’s contentions regarding the breadth of his experience, which was not challenged by the Commission.

47Such statements are not in themselves sufficient to show that the appointing authority committed a manifest error of assessment in its examination of the interests of the service. As the Commission explained in its defence and at the hearing, taking into account the interests of the service in the context of the examination of a request to remain in active service beyond the automatic retirement age is not just a matter of deciding whether the skills of the person concerned are appropriate for the functions being performed, a point which is not questioned in the slightest in the present case. The appointing authority must take into consideration other factors, such as the implementation of a general staffing policy or the need to reduce staff numbers, or the possibility of replacing officials who reach compulsory retirement age by officials of a lower grade or even by temporary or contract staff.

48It must thus be held that the applicant has not shown that the appointing authority committed a manifest error of assessment of the interests of the service by taking into account the externalisation policy that was implemented from 2009.

49Secondly, the applicant states that the contested decision fails to take into account the level of support he received from his hierarchical superiors. However, it is clear from the documents in the case that the support of the Director-General of the directorate-general to which the applicant was assigned was contingent upon the staffing plan of that directorate, and that the opinion of the Director-General of DG Enterprise and Industry was negative. Furthermore, the appointing authority responsible for examining requests to remain in active service under the second paragraph of Article 52 of the Staff Regulations is not the Director-General of DG Enterprise and Industry but the Director-General of DG Human Resources. That support was therefore, in any event, irrelevant for the assessment of whether the contested decision was well founded, since the appointing authority responsible could well have made an assessment of the interests of the service that differed completely from that of DG Enterprise and Industry to which the applicant was assigned.

50Thirdly, the applicant criticises the appointing authority for failing to take into account the fact that acceptance of his request to remain in active service would not have prevented the Commission from attaining its objective of a 5% reduction in staff by 2017, since, even if his request had been accepted, he would in any event have retired by 2017. Such an argument does not by any means demonstrate the existence of a manifest error of assessment of the interests of the service. As the Commission noted in its defence, it is equally if not more compatible with the interests of the service to reduce the staff of an institution gradually rather than to wait for the end of the period in which such a reduction must be made.

51It is therefore necessary to reject the complaint alleging manifest error of assessment of the interests of the service, since the applicant has failed to demonstrate the existence of such an error.

–The alleged breach by the appointing authority of its duty to have regard to the welfare of staff

52The applicant states that, when applying the second paragraph of Article 52 of the Staff Regulations, the appointing authority is required, under its duty to have regard to the welfare of the official concerned, to take into account the interests of that official.

53According to the case-law cited by the applicant himself, the administration’s duty to have regard to the welfare of its staff reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and its staff. That duty implies in particular that when the authority takes a decision concerning the situation of an official or other staff member, it must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official concerned. The protection of the rights and interests of officials is, however, subject to compliance with the rules in force (judgment in Angelidis v Parliament, T‑416/03, EU:T:2006:375, point 117 and the case-law cited).

54The interests of the service and the interests of an official are thus two different concepts. In the specific case of the second paragraph of Article 52 of the Staff Regulations, the interests of the official concerned are already taken into account by the fact that he must make a request to remain in active service beyond the compulsory retirement age laid down in the Staff Regulations. Under the terms of that provision, the decision that the appointing authority responsible must take on such a request depends entirely on the interests of the service, without the appointing authority being required to take into account the interests of the official making the request. The official does not therefore need to demonstrate to the appointing authority that he has a personal interest in remaining in active service, as the applicant has done in the present action, since that interest is irrelevant in the context of his request.

55The applicant’s complaint alleging a possible failure by the appointing authority in its duty to have regard to the welfare of its staff cannot therefore be accepted.

–The alleged breach of the principles of equal treatment and sound administration and of Article 5 of the Staff Regulations

56The applicant asserts that in the past the Director-General of DG Enterprise and Industry has rejected all applications to remain in active service beyond the retirement age, contrary to the practice of the other directorates-general, and that that fact ‘raises questions regarding observance … of the principle of equality between officials, as laid down inter alia in Article 5 of the Staff Regulations’.

57The Tribunal finds that, besides his very general assertions, the applicant has not put forward any legal argument in support of his allegation that by adopting the contested decision the appointing authority failed to observe the principle of equal treatment. He has made no attempt, in particular, to demonstrate that he was treated less favourably than another official who was in a comparable legal situation. That complaint must be declared inadmissible under Article 35(1)(e) of the Rules of Procedure in force when the action was lodged, which, following amendment, became Article 50(1)(e) of the Rules of Procedure.

58The same applies with regard to the arguments concerning an alleged breach of the principle of sound administration, which the applicant puts forward in paragraph 21 of his application without putting forward any reasons or legal arguments that might support his position.

59The applicant’s single plea must therefore be rejected as lacking any foundation in law.

The claim for damages

60The Tribunal finds that, whilst the applicant seeks compensation for the ‘damage that has resulted or may result from the decision of 28 March 2014 and the note of 7 April 2014’, the application contains no argument relating to that claim and does not even specify whether the damage for which the applicant seeks compensation is material or non-material, so that the claim for damages must be rejected as inadmissible.

61In any event, since the claim for annulment of the decisions challenged by the applicant has been rejected it is necessary to reject also the claim for damages, which seeks compensation for the damage that allegedly resulted from those decisions (see judgment in CT v EACEA, F‑36/13, EU:F:2013:190, paragraphs 79 and 80 and the case-law cited).

62It follows that the action must be dismissed in its entirety.

Costs

63Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to bear his own costs and to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.

64For the reasons set out in this judgment, the applicant has been unsuccessful in his action. Furthermore, in its pleadings the Commission has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 102(1) of the Rules of Procedure, the applicant must bear his own costs and pay those incurred by the Commission, including those relating to the proceedings for interim measures in Case F‑36/14 R.

Operative part

On those grounds,THE CIVIL SERVICE TRIBUNAL(Second Chamber)hereby:

1.Dismisses the action;

2.Declares that Mr Bischoff is to bear all his own costs and orders him to pay all the costs incurred by the European Commission.

Delivered in open court in Luxembourg on 18 May 2015.