RW v European Commission (T-170/17)

Contents

Judgment of the General Court (Second Chamber)8 May 2019^note(Civil service — Officials — Article 42c of the Staff Regulations — Leave in the interests of the service — Automatic retirement — Interest in bringing proceedings — Admissibility — Scope of the law — Literal, contextual and teleological interpretation)In Case T‑170/17,RW, former official of the European Commission, represented by S. Orlandi and T. Martin, lawyers,vEuropean Commission, represented initially by G. Berscheid and A.-C. Simon, and subsequently by G. Berscheid and B. Mongin, acting as Agents,THE GENERAL COURT (Second Chamber),composed of M. Prek, President, E. Buttigieg (Rapporteur) and B. Berke, Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure and further to the hearing on 11 December 2018,gives the following

Judgment

Legal framework

1The Staff Regulations of Officials of the European Union (‘the Staff Regulations’) are established by Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ 1968 L 56, p. 1), as amended, in particular, by Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15).

2Article 35 of the Staff Regulations, which is part of Chapter 2 of Title III of the Staff Regulations, headed ‘Administrative status’, provides that an official may be assigned one of the following administrative statuses: active employment, secondment, leave on personal grounds, non-active status, leave for military service, parental leave or family leave and leave in the interests of the service.

3Article 42c of the Staff Regulations, which is part of the same chapter, provides as follows:‘At the earliest five years before the official’s pensionable age, an official with at least ten years of service may be placed by decision of the appointing authority on leave in the interests of the service for organisational needs linked to the acquisition of new competences within the institutions.The total number of officials placed on leave in the interests of the service each year shall not be higher than 5% of the officials in all institutions who retired the previous year. The total number thus calculated shall be allocated to each institution according to their respective numbers of officials [as] at 31 December of the preceding year. The result of such allocation shall be rounded up to the nearest whole number in each institution.Such leave shall not constitute a disciplinary measure.The duration of the leave shall correspond in principle to the period until the official reaches pensionable age. However, in exceptional situations, the appointing authority may decide to put an end to the leave and reinstate the official.When the official placed on leave in the interests of the service reaches pensionable age, he shall automatically be retired.Leave in the interests of the service shall be governed by the following rules:(a) another official may be appointed to the post occupied by the official;(b) an official on leave in the interests of the service shall not be entitled to advancement to a higher step or promotion in grade.An official thus placed on leave shall receive an allowance calculated in accordance with Annex IV.At the official’s request, the allowance shall be subject to contributions to the pension scheme, calculated on the basis of that allowance. In such a case, the period of service as an official on leave in the interests of the service shall be taken into account for the purpose of calculating years of pensionable service within the meaning of Article 2 of Annex VIII.The allowance shall not be subject to a correction coefficient.’

4Article 47 of the Staff Regulations is part of Chapter 4 of Title III of the Staff Regulations, headed ‘Termination of service’. That article provides that services may be terminated by resignation, compulsory resignation, retirement in the interests of the service, dismissal for incompetence, removal from post, retirement or death.

5Points (a) and (b) of the first paragraph of Article 52 of the Staff Regulations, which is also part of Chapter 4, provide, inter alia, that, without prejudice to Article 50 of the Staff Regulations (which concerns retirement in the interests of the service for senior officials), an official shall be retired either automatically on the last day of the month in which he reaches the age of 66, or at his own request on the last day of the month in respect of which the request was submitted where he has reached pensionable age.

6Annex XIII of the Staff Regulations contains transitional measures applicable to officials.

7Article 22(1) of Annex XIII of the Staff Regulations provides as follows:1. Officials with 20 or more years’ service on 1 May 2004 shall become entitled to a retirement pension when they reach the age of 60.Officials aged 35 years or more on 1 May 2014 and who entered the service before 1 January 2014 shall become entitled to a retirement pension at the age shown in the table below:Age on 1 May 2014 | Pensionable age60 years and above | 60 years59 years | 60 years 2 months58 years | 60 years 4 months… | …35 years | 64 years 8 monthsOfficials aged less than 35 years on 1 May 2014 shall become entitled to a retirement pension at the age of 65 years.However, for officials aged 45 years or more on 1 May 2014 who entered the service between 1 May 2004 and 31 December 2013, the pensionable age shall remain 63 years.For officials in service before 1 January 2014[,] pensionable age to be taken into consideration for all references to the pensionable age in these Staff Regulations shall be determined in accordance with the above provisions, save as otherwise provided in these Staff Regulations.’

8Article 23(1) of Annex XIII of the Staff Regulations provides, inter alia, that 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

9The applicant, RW, is a former official of the European Commission. He entered the service of the Commission on 1 October 1982 and was assigned from 12 December 1999 to the Directorate-General (DG) for ‘Education and Culture’. He was promoted to grade AD 12 on 1 January 2010.

10By letter of 1 December 2016, the Directorate-General (DG) for ‘Human Resources and Security’ (‘DG HR’) informed the applicant that the appointing authority intended to place him on leave in the interests of the service pursuant to Article 42c of the Staff Regulations with effect from 1 April 2017.

11On 14 December 2016, the applicant submitted observations on the letter of 1 December 2016 and asked to be heard.

12On 13 January 2017, a meeting took place between the applicant and the Head of the ‘Career Management and Mobility’ Unit of DG HR, in the presence of a staff representative, a member of the abovementioned unit and a representative of the DG for ‘Education and Culture’.

13Following that meeting, the ‘Career Management and Mobility’ Unit of DG HR sent the appointing authority a favourable opinion regarding the application of Article 42c of the Staff Regulations in respect of the applicant.

14By decision of 2 March 2017 (‘the contested decision’), the appointing authority decided, on one hand, to place the applicant on leave in the interests of the service, under Article 42c of the Staff Regulations, from 1 June 2017, and, on the other, given that he had already reached pensionable age in accordance with Article 22(1) of Annex XIII of the Staff Regulations, to automatically retire him under the fifth paragraph of Article 42c of the Staff Regulations, on the same date.

15On 20 March 2017, the applicant submitted a complaint against the contested decision under Article 90(2) of the Staff Regulations, which was rejected by express decision of the appointing authority of 26 July 2017.

Procedure and forms of order sought

16By application lodged at the Registry of the Court on 20 March 2017, the applicant brought the present action. By separate document lodged at the Registry of the Court on the same day, the applicant also applied for interim measures, pursuant to Articles 278 and 279 TFEU, seeking that application of the contested decision be suspended. Pursuant to Article 91(4) of the Staff Regulations, the proceedings in the principal action were suspended.

17By separate document lodged at the Registry of the Court on 20 March 2017, the applicant requested that he be granted anonymity pursuant to Article 66 of the Rules of Procedure of the General Court. By decision of 17 May 2017, the Court granted that request.

18By order of 18 May 2017, RW v Commission (T‑170/17 R, not published, EU:T:2017:351), the President of the Court ordered that application of the contested decision be suspended.

19In accordance with Article 91(4) of the Staff Regulations, the proceedings in the principal action were resumed following the adoption, on 26 July 2017, of the express decision rejecting the applicant’s complaint.

20By order of 10 January 2018, Commission v RW (C‑442/17 P(R), not published, EU:C:2018:6), the Vice-President of the Court of Justice dismissed the appeal brought by the Commission against the order of 18 May 2017, RW v Commission (T‑170/17 R, not published, EU:T:2017:351).

21The written part of the procedure in the principal action was closed on 9 January 2018 with the lodging of the rejoinder.

22By document lodged at the Registry of the Court on 2 February 2018, the applicant submitted a reasoned application under Article 106 of the Rules of Procedure to be heard during the oral part of the procedure.

23The parties presented oral argument and answered the questions put by the Court at the hearing on 11 December 2018.

24At the end of the hearing, the Court asked the parties to enter into discussions in order to reach, to the extent possible, an amicable settlement of the dispute, including with regard to the costs of the proceedings. The President of the Second Chamber of the Court set a period ending on 31 January 2019 for the parties to inform the Court of the outcome of those discussions and decided to keep the oral part of the procedure open.

25The oral part of the procedure was closed by decision of the President of the Second Chamber of the Court of 4 February 2019, further to the information communicated to the Court by the parties, by letters of 29 January 2019, according to which the discussions with a view to an amicable settlement of the dispute had not been successful.

26The applicant claims that the Court should:– annul the contested decision ‘whereby [he] is automatically retired with effect from 1 June 2017’;– order the Commission to pay the costs.

27The Commission contends that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

Admissibility of the action

28The Commission points out that the application for annulment, as set out in the application initiating proceedings, does not cover both of the objects of the contested decision, namely to place on leave in the interests of the service and to automatically retire the applicant, but only the second one. However, those two objects cannot be severed from one another, so that the partial annulment of the contested decision would lead to the alteration of its substance. In those circumstances, and in view of the case-law according to which the partial annulment of an EU act is possible only if the elements whose annulment is sought may be severed from the remainder of the act, the Commission concludes that the application for annulment made in the present case by the applicant or, at least, the first two pleas in law put forward in support of it is or are inadmissible.

29The applicant challenges the plea of inadmissibility raised by the Commission.

30By way of a preliminary point, the Commission’s analysis that the two objects of the contested decision, namely to place the applicant on leave in the interests of the service and, at the same time, to automatically retire him, cannot be severed from one another must be upheld. It is absolutely clear from the fifth paragraph of Article 42c of the Staff Regulations that the leave in the interests of the service of the officials concerned may not extend beyond ‘pensionable age’, that age being determined, for officials who entered the service before 1 January 2014, by the fifth subparagraph of Article 22(1) of Annex XIII of the Staff Regulations, so that, if the official placed on leave in the interests of the service has already reached the abovementioned ‘pensionable age’, that official must, at the same time, be automatically retired. That analysis was applied in the contested decision, pursuant to which the applicant was placed on leave in the interests of the service and, at the same time, automatically retired (see paragraph 14 above). The applicant was 63 years of age on the effective date of the contested decision and had, therefore, passed ‘pensionable age’, which, in his case, was set at 60 years of age under the fifth subparagraph of Article 22(1) of Annex XIII of the Staff Regulations, read together with the first subparagraph of that provision. Since, on the date on which he was placed on leave in the interests of the service, the applicant had passed ‘pensionable age’, he was, at the same time, automatically retired under the fifth paragraph of Article 42c of the Staff Regulations.

31The Commission’s analysis in relation to the non-severability of the two objects of the contested decision having been upheld, it should be pointed out that the plea of inadmissibility which it raises is based on the premiss that the application for annulment set out in the application initiating proceedings constitutes an application for partial annulment in that it covers only the second object of the contested decision, that of automatically retiring the applicant.

32However, that premiss of the Commission’s argument is incorrect.

33The form of order sought by the applicant does indeed contain the phrase ‘whereby the applicant is automatically retired with effect from 1 June 2017’. Nevertheless, that phrase cannot be understood as limiting the subject of the application for annulment to the retirement of the applicant alone.

34It is apparent from the content of the application initiating proceedings that the application for annulment covers both of the objects of the contested decision, the applicant having clearly identified the link which existed, according to the reasoning followed in the contested decision, between placing him on leave in the interests of the service and automatically retiring him. In that regard, reference should be made, in particular, to paragraph 34 of the application, in the context of the first plea for annulment, in terms of which ‘In the present case, the appointing authority adopted a decision to place the applicant on leave in the interests of the service which amounts to automatically retiring him.’

35Reference should also be made to the second plea for annulment, alleging breach of the scope of the law, pursuant to which the applicant argues, in essence, that Article 42c of the Staff Regulations is not applicable to him given that he had passed ‘[his] pensionable age’ within the meaning of the first paragraph of that provision. It is clear that, if that plea were upheld by the Court, that would lead to the annulment of the contested decision in its entirety on the grounds that it would have no legal basis and not to its partial annulment only in so far as it automatically retires the applicant.

36It is apparent from the foregoing considerations that, despite the phrase ‘whereby the applicant is automatically retired with effect from 1 June 2017’ which appears in the form of order sought by the applicant, the application for annulment set out in the application initiating proceedings clearly covers both of the objects of the contested decision, which cannot be severed from one another, relating to placing the applicant on leave in the interests of the service and, at the same time, automatically retiring him. It was not, therefore, an application for partial annulment, as the Commission claims. It follows that the plea of inadmissibility raised by the Commission must be rejected.

The applicant’s continued interest in bringing proceedings

37At the hearing, the Commission argued that the judgment of the Court in the present case will not have any effect on the applicant’s situation. The Commission explained that, as a result of the suspension of the application of the contested decision, ordered by the judge hearing the application for interim measures, the applicant was kept on as a serving official at the institution ‘for the maximum period of time allowed by the Staff Regulations’, namely until 1 November 2018, the date on which he had reached 65 years of age and was retired automatically under Article 23(1) of Annex XIII of the Staff Regulations. Due to that suspension, the applicant was able to avoid the imposition of leave in the interests of the service to which he objected and to continue to receive his normal remuneration, and he was, ultimately, retired automatically under the same conditions as those which would have applied if no decision had been adopted in respect of him under Article 42c of the Staff Regulations. On the basis of that argument, the Commission concluded that the applicant’s interest in bringing proceedings no longer existed.

38The applicant challenged the Commission’s conclusion relating to the cessation, in the course of the proceedings, of his interest in bringing proceedings.

39According to settled case-law, for a person falling within the scope of the Staff Regulations to be able, within the framework of an action brought under Articles 90 and 91 of those regulations, to seek the annulment of an act which adversely affects him, within the meaning of Article 90(2) of those regulations, he must have, at the time he brings the action, a vested and present interest, which is sufficiently established, to have that act annulled, such an interest assuming that the claim is likely, if successful, to benefit him. As a condition for admissibility, the applicant’s interest in bringing proceedings must be assessed at the time the action is brought. However, for an official to be able to bring an action for annulment against a decision of the appointing authority, he must retain a personal interest in the annulment of the contested decision. In that regard, in the absence of a present interest in bringing proceedings, there is no further need to adjudicate on the action (see judgment of 8 November 2018, Cocchi and Falcione v Commission, T‑724/16 P, not published, EU:T:2018:759, paragraph 50 and the case-law cited).

40In the present case, the Commission’s claims set out in paragraph 37 above, which are not challenged by the applicant, may indeed raise the issue of whether the applicant’s interest in bringing proceedings has ceased to exist in the course of the proceedings.

41Nevertheless, as the Commission itself pointed out at the hearing, if the contested decision were to remain valid and were not to be annulled by the EU courts, it could, potentially, serve as a basis for the Commission to claim from the applicant the difference between the sums paid by way of salary in the period between 1 June 2017, the effective date of the contested decision, and 1 November 2018, the date on which the applicant was retired automatically, and the sums which the applicant could have claimed by way of his pension if the contested decision had been applied immediately and its application had not been suspended.

42It follows that the applicant, as he furthermore argued at the hearing, still retains an interest in applying to have the contested decision annulled and removed from the EU legal order, in order to be certain that the Commission does not in the future claim from him the difference of the sums described in paragraph 41 above.

43That conclusion is not called into question either by the Commission’s assertion at the hearing that the option of recovering the difference of the abovementioned sums would be complicated to put into effect since the applicant had continued to work as a serving official until he was retired automatically, on 1 November 2018, or by its assurance, given at the hearing, that, in any event, it will not ask the applicant for the difference of the abovementioned sums. These are simply assertions and assurances on the part of the Commission which, moreover, do not call into question the fact that maintaining the contested decision in the EU legal order constitutes a source of legal uncertainty for the applicant, which gives rise to his interest, still current, in seeing that decision annulled.

44In view of the foregoing considerations, it must be concluded that the applicant still retains an interest in bringing proceedings.

Substance

45In support of his action, the applicant relies on three pleas in law, the first alleging infringement of Articles 47 and 52 of the Staff Regulations, the second alleging breach of the scope of the law, in this case of Article 42c of the Staff Regulations, and the third alleging breach of the obligation to state reasons and of the rights of the defence. In the reply, the applicant indicated that he was withdrawing the third plea in law.

46Since, in the context of the second plea in law, the Court is asked to define the scope of Article 42c of the Staff Regulations, which constitutes the legal basis of the contested decision, it is appropriate to examine that plea in law first.

Preliminary observations

47The applicant, by carrying out a notably literal and contextual interpretation of Article 42c of the Staff Regulations, maintains that that provision is not applicable to officials who, like him, have reached ‘pensionable age’ within the meaning of that provision read together with the fifth subparagraph of Article 22(1) of Annex XIII of the Staff Regulations. The applicant argues, in particular, that leave in the interests of the service, an administrative status assigned to the officials concerned under Article 42c of the Staff Regulations, must have a certain duration. However, the application of that provision to officials who, on the date of that application, have reached ‘pensionable age’ results, under the fifth paragraph of Article 42c of the Staff Regulations, in those officials’ being placed on leave in the interests of the service and, at the same time, automatically retired, so that the aim of that provision is distorted and the conditions, laid down by the Staff Regulations, under which an official’s service may be terminated, are circumvented. The applicant concludes that the appointing authority in the present case failed to respect the scope of Article 42c of the Staff Regulations and that, on that basis, the contested decision should be annulled.

48The Commission, relying on arguments based, in particular, on the wording of Article 42c of the Staff Regulations and its ratio legis, challenges the applicant’s argument and maintains that that provision may be applied to an official who has reached ‘pensionable age’, as in the case of the applicant.

49By way of a preliminary point, it should be noted that, as the applicant rightly argues, the application of Article 42c of the Staff Regulations to an official who has reached ‘pensionable age’ within the meaning of that provision leads to his being placed on leave in the interests of the service and, at the same time, his being automatically retired under the fifth paragraph of the abovementioned provision. That analysis was applied in the contested decision in respect of the applicant, as has already been observed in paragraph 30 above.

50It follows that the question which arises is whether Article 42c of the Staff Regulations may be applied to officials who, like the applicant, 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. With that in mind, it is therefore necessary to determine the scope ratione personae of Article 42c of the Staff Regulations, which requires it to be interpreted.

Literal interpretation

51The first paragraph of Article 42c of the Staff Regulations provides that the imposition of leave in the interests of the service on the official concerned shall apply ‘at the earliest five years before the official’s pensionable age’. As the Commission rightly argued at the hearing, the expression ‘official’s pensionable age’, found in the first paragraph of Article 42c of the Staff Regulations, corresponds to the expression ‘pensionable age’ found in the fourth and fifth paragraphs of that provision. Consequently, to determine the ‘official’s pensionable age’ with regard to officials who entered the service before 1 January 2014, it is necessary, as for the determination of ‘pensionable age’, to refer to the fifth subparagraph of Article 22(1) of Annex XIII of the Staff Regulations, which states the following:‘For officials in service before 1 January 2014[,] pensionable age to be taken into consideration for all references to the pensionable age in these Staff Regulations shall be determined in accordance with the above provisions, save as otherwise provided in these Staff Regulations.’

52The words ‘above provisions’ in the fifth subparagraph of Article 22(1) of Annex XIII of the Staff Regulations refer to the first four subparagraphs of that provision, which specify the age from which officials who entered the service before 1 January 2014 may seek to retire and receive a retirement pension.

53With regard to officials who entered the service after 1 January 2014, the words ‘official’s pensionable age’ in the first paragraph of Article 42c of the Staff Regulations refer to the age of automatic retirement provided for in point (a) of the first paragraph of Article 52 of the Staff Regulations, which is 66, as the parties confirmed at the hearing.

54It is therefore apparent from the wording of the first paragraph of Article 42c of the Staff Regulations that that provision provides information on the date from which that provision may be applied to an official, namely ‘at the earliest five years before the official’s pensionable age’. In addition, as the Commission rightly argues, with regard to officials who entered the service before 1 January 2014, the wording of that provision does not preclude the possibility that it may be applied to an official who has reached and, a fortiori, passed ‘the official’s pensionable age’.

55However, it should be recalled that the fourth paragraph of Article 42c of the Staff Regulations provides that the duration of the leave in the interests of the service shall correspond ‘in principle’ to the period until the official reaches ‘pensionable age’, but that, ‘in exceptional situations’, the appointing authority may decide to put an end to the leave and reinstate the official.

56The words ‘duration of the leave’ and ‘period until the official reaches pensionable age’ found in the first sentence of the fourth paragraph of Article 42c of the Staff Regulations support the applicant’s argument that leave in the interests of the service must have a certain duration. Contrary to what the Commission argues, the words ‘in principle’ found in that sentence do not call into question the abovementioned conclusion. Those words must be understood in the light of the second sentence of the fourth paragraph of Article 42c of the Staff Regulations, in terms of which:‘However, in exceptional situations, the appointing authority may decide to put an end to the leave and reinstate the official.’

57It is thus clear that the words ‘in principle’ do not demonstrate the existence of a possible exception to the principle that leave in the interests of the service must have a certain duration, but demonstrate that it is possible to derogate from the principle that leave in the interests of the service ends on the date on which the official concerned reaches ‘pensionable age’, that possible derogation being linked to the fact that the appointing authority may, ‘in exceptional situations’, decide to reinstate that official, thereby putting an end to the leave in the interests of the service.

58The applicant’s argument that leave in the interests of the service must have a certain duration is supported by the wording of the fifth paragraph of Article 42c of the Staff Regulations, which provides that ‘when the official placed on leave in the interests of the service reaches pensionable age, he shall automatically be retired’. It follows from that wording, and more specifically from the use of the verb ‘to reach’, that automatic retirement assumes that the official concerned is on leave in the interests of the service on the date on which he reaches ‘pensionable age’ and that that leave has a certain duration.

59In view of the foregoing considerations, it must be found that the wording of Article 42c of the Staff Regulations supports the applicant’s argument 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. The preclusion of the possibility that the imposition of leave in the interests of the service may be concomitant with the automatic retirement of the official concerned means, in view of the considerations set out in paragraphs 30 and 50 above, that the abovementioned provision may not be applied to officials who, like the applicant, have reached ‘pensionable age’.

60It is necessary to examine whether that conclusion is invalidated by the contextual and teleological interpretation of Article 42c of the Staff Regulations.

Contextual interpretation

61It should be recalled that Article 42c of the Staff Regulations is part of Chapter 2 of Title III of the Staff Regulations, headed ‘Administrative status’. In accordance with Article 35 of the Staff Regulations, which appears in the same chapter, an official may be assigned one of the following administrative statuses: active employment, secondment, leave on personal grounds, non-active status, leave for military service, parental leave or family leave and leave in the interests of the service.

62In contrast, ‘termination of service’ is governed by Chapter 4 of Title III of the Staff Regulations. Article 47 of the Staff Regulations, which appears in that chapter, defines the circumstances whereby services shall be terminated as being resignation, compulsory resignation, retirement in the interests of the service, dismissal for incompetence, removal from post, retirement and death.

63It is therefore clear that, whilst 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, the Commission’s argument relating to the possibility of applying Article 42c of the Staff Regulations to an official who has reached ‘pensionable age’ and, thus, to the possibility of his being placed on leave in the interests of the service and automatically retired at the same time, results in the transformation of the measure at issue from an ‘administrative status’ to circumstances of ‘termination of service’. As the judge hearing the application for interim measures pointed out, the application by the Commission, in the contested decision, of Article 42c of the Staff Regulations appears to be an ‘automatic retirement in the interests of the service’ against the will of the interested party (order of 18 May 2017, RW v Commission, T‑170/17 R, not published, EU:T:2017:351, paragraph 61).

64It follows from the foregoing considerations that the location of Article 42c of the Staff Regulations in Chapter 2 of Title III of those regulations is difficult to reconcile with the Commission’s abovementioned argument and, in any event, does not invalidate the conclusion set out in paragraph 59 above.

Teleological interpretation

65The Commission maintains that the ratio legis of Article 42c of the Staff Regulations is to optimise the management of the human resources of the institutions. That provision allows a certain flexibility in the management of staff close to retirement or about to retire, whilst offering reasonable compensation to the persons concerned. According to the Commission, the EU legislature did not intend to limit the scope of the provision to officials who are not about to retire. The optimisation sought calls for a very wide discretion, especially since, on one hand, it is carried out with due regard to the interests of the official concerned and, on the other, the measure is primarily aimed at officials close to retirement. It would be paradoxical if the measure were not applicable to officials who have already reached their pensionable age. The Commission thus maintains that the restrictive interpretation advocated by the applicant deprives the measure laid down by Article 42c of the Staff Regulations of some of its effectiveness and purpose.

66As the Commission rightly argues, citing recital 7 of Regulation No 1023/2013, the aim of Article 42c of the Staff Regulations is indeed, ultimately, to optimise the management of the human resources of the institutions. However, as the Commission itself furthermore points out, the EU legislature ensured that the imposition of leave in the interests of the service is, according to the words used by the Commission, ‘sufficiently protective of the rights of the officials concerned’.

67In that regard, it should be recalled that the seventh paragraph of Article 42c of the Staff Regulations provides that an official placed on leave in the interests of the service shall receive an allowance calculated in accordance with Annex IV of the Staff Regulations. According to the first paragraph of the sole article of that annex, read in the light of Article 42c of the Staff Regulations, that monthly allowance is, for the first three months of the application of the measure, equal to the basic salary of the official concerned. From the fourth to the sixth month, it amounts to 85% of the basic salary and, thereafter and until automatic retirement, to 70% of the basic salary.

68As a provision, laid down by the EU legislature, which mitigates the negative impact on the officials concerned of being placed on leave in the interests of the service, reference should also be made to the eighth paragraph of Article 42c of the Staff Regulations, which, in essence, allows the official concerned to continue to contribute to the pension scheme during the period whilst he is on leave in the interests of the service, in order to increase the amount of the pension which he will receive when he retires.

69It must be observed that, if it were permissible to apply Article 42c of the Staff Regulations to an official who has reached ‘pensionable age’ and, consequently, for his automatic retirement to be concomitant with his being placed on leave in the interests of the service, that official would not derive any benefit from the provisions laid down by the seventh and eighth paragraphs of Article 42c of the Staff Regulations, since the duration of the leave in the interests of the service would be zero. In those circumstances, the balance sought by the EU legislature, in adopting Article 42c of the Staff Regulations, between considerations relating to the optimal management of the human resources of the institutions and considerations relating to the adequate protection of the interests of the officials concerned, would be upset to the detriment of the latter considerations.

70In addition, it must also be observed that, in the event of automatic retirement at the same time as the imposition of leave in the interests of the service, the appointing authority would not have the option provided by the fourth paragraph of Article 42c of the Staff Regulations, even if only ‘in exceptional situations’, to put an end to the leave in the interests of the service and reinstate the official. It follows that the abovementioned scenario is difficult to reconcile with that provision inasmuch as, on one hand, the result of that scenario is that, by removing all discretion from the institutions, it automatically deprives them of a staff-management tool constituted by the possibility of reinstating the official concerned in the service and, on the other, it deprives that official of the possibility of such reinstatement.

71In view of the foregoing considerations, it must be found that the teleological interpretation of Article 42c of the Staff Regulations does not support the Commission’s argument, but, on the contrary, supports the conclusion set out in paragraph 59 above.

72Consequently, following the interpretation of Article 42c of the Staff Regulations, it must be concluded that that provision may not be applied to officials who, like the applicant, have reached ‘pensionable age’ within the meaning of that provision. It follows that the Commission, by adopting the contested decision on the basis of that provision, breached the scope of that provision and that the contested decision must, therefore, be annulled, without its being necessary to examine the plea in law alleging infringement of Articles 47 and 52 of the Staff Regulations.

Costs

73Under Article 134(1) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

74Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant, including the costs relating to the interlocutory proceedings.

Operative part

On those grounds,THE GENERAL COURT (Second Chamber)hereby:

1.Annuls the European Commission’s decision of 2 March 2017 by which RW was placed on leave in the interests of the service and, at the same time, automatically retired;

2.Orders the Commission to bear its own costs and to pay those incurred by RW, including those relating to the interlocutory proceedings.

Delivered in open court in Luxembourg on 8 May 2019.