Contents
Judgment of the General Court (First Chamber)27 November 2018note(Civil Service — Officials — EEAS — Posting — Position of Head of European Union Delegation to Ethiopia — Decision refusing to extend the posting — Interests of the service — Obligation to state reasons — Equal treatment)In Case T‑315/17,Chantal Hebberecht, official of the European External Action Service, residing in Fourmies (France), represented by B. Maréchal, lawyer,vEuropean External Action Service (EEAS), represented by S. Marquardt and R. Spac, acting as Agents,THE GENERAL COURT (First Chamber),composed of I. Pelikánová, President, P. Nihoul (Rapporteur) and J. Svenningsen, Judges,Registrar: M. Marescaux, Administrator,having regard to the written part of the procedure and further to the hearing on 15 May 2018,gives the following
Judgment
Background to the dispute
1The applicant, Ms Chantal Hebberecht, is an official of the European External Action Service (EEAS). On 1 September 2013, she was appointed Head of the European Union delegation to Ethiopia for a four-year term.
2By memorandum from the EEAS of 22 March 2016, officials of the EEAS serving in delegations concerned by the rotation exercise to be held in 2017 or 2018 were informed of the possibility of applying for an early rotation or an extension of their posting. The note stated that agreement would be given in exceptional, duly substantiated cases only, with due regard to the interests of the service.
3On 15 April 2016, the applicant submitted such a request for an extension, arguing that she wanted to build on her experience in Ethiopia for a fifth year before retiring on 1 September 2018.
4By decision of 30 June 2016 (‘the contested decision’), the appointing authority of the EEAS rejected that request, stating that ‘in the interests of ensuring a regular rotation of heads of delegation, a clear policy of rotation after a maximum of four years in the post has generally been implemented’.
5By memorandum of 29 September 2016, the applicant, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), submitted a complaint, registered on 30 September 2016, against the contested decision. In support of that complaint, she argued that, legally, the contested decision was contrary to the interests of the service, the continuity of the service, transparency, equal treatment and respect for positive discrimination measures in favour of women. According to the applicant:– it would be in the interests of the service to maintain a well-managed delegation under the direction of an experienced head of delegation; she has the experience and relationships necessary to safeguard Ethiopia’s stability and to stem the flow of migration, in the interests of the EU;– her departure would create a degree of discontinuity within the service at the management level provided by the EEAS;– no explanation was given to her regarding the refusal to extend her posting;– her request had been submitted in the same spirit as others which were granted;– if a decision had been taken to grant her request and extend her posting as head of delegation, as a woman of grade AD 14, it would have constituted an exemplary measure of positive discrimination.
6By decision of 1 February 2017, communicated to the applicant on 3 February 2017 (‘the decision rejecting the complaint’), the EEAS Secretary-General, acting as the appointing authority, rejected the complaint. According to the appointing authority:– the administration has a wide discretion to assess requirements linked to the interests of the service; this requires regular rotation of staff in delegations, in particular heads of delegation; without predictability and automaticity, the effectiveness of the rotation exercise would be compromised; the situation in Ethiopia cannot be classified as ‘exceptional’; a derogation cannot be granted on the grounds of personal reasons;– the continuity of service would be guaranteed by the EEAS together with the deputy head of delegation;– the contested decision was clearly, even succinctly, reasoned by reference to the EEAS policy of ensuring regular staff rotation;– the applicant has not established the existence of a distinction which was arbitrary or manifestly inappropriate in relation to the objective pursued;– in the absence of any obligation to that effect, her gender cannot be taken into account when considering the request for extension which must be based solely on the interests of the service.
Procedure and forms of order sought
7By application lodged at the Court Registry on 15 May 2017, the applicant brought the present action.
8On a proposal from the Judge-Rapporteur, the Court (First Chamber) decided to open the oral part of the procedure.
9The parties presented oral argument at the hearing on 15 May 2018.
10The applicant claims that the Court should:– declare the action admissible and well founded;– annul the decision rejecting the complaint;– order the EEAS to pay to the applicant a lump sum of EUR 250000 as compensation for the non-material harm suffered or, in the alternative, EUR 200000 or, in the further alternative, EUR 150000, EUR 100000 or EUR 50000;– order the EEAS to pay the costs of the proceedings.The EEAS contends that the Court should:– dismiss the action as unfounded;– order the applicant to pay the costs.
Law
The contested measure
11In the document instituting proceedings, the applicant seeks the annulment of the ‘decision of the Appointing Authority of the [EEAS] (Ares(2017) 615970 – 03/02/2017) concerning the refusal of the one-year extension of [her] posting as Head of the EU delegation to the Federal Democratic Republic of Ethiopia’.
12In that regard, it must be noted that the document identified by the applicant by means of the number assigned to it in the Ares database corresponds to the decision rejecting the complaint.
13It should be borne in mind that, according to settled case-law applicable to European Union civil service law, the administrative complaint, as provided for under Article 90(2) of the Staff Regulations, and its rejection, express or implied, constitute an integral part of a complex procedure and constitute merely a prerequisite for initiating proceedings before the Court. Consequently, an action, even if formally directed against the rejection of the complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8), except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged (judgment of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraph 26).
14Any decision rejecting a complaint, whether express or implied, if it is straightforward, merely confirms the act or failure to act complained of and, when taken in isolation, does not constitute a challengeable act, so that the claims made against that decision which has no autonomous content in relation to the initial decision must be regarded as being directed against the initial act. An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgments of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 71 and the case-law cited, and of 15 September 2017, Skareby v EEAS, T‑585/16, EU:T:2017:613, paragraph 18 and the case-law cited).
15In the present case, the decision rejecting the complaint merely confirms the contested decision, in so far as it does not alter the operative part of that decision or contain a re-examination of the applicant’s situation in the light of new elements of law or of fact. The fact that the authority authorised to decide on the applicant’s complaint has been led, in response to arguments put forward by the applicant in the complaint, to clarify the reasoning for the contested decision, provides no justification for the rejection of the complaint to be considered an autonomous act adversely affecting the applicant (see, to that effect, judgments of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 55 and 56, and of 14 November 2013, Europol v Kalmár, T‑455/11 P, EU:T:2013:595, paragraph 41).
16In those circumstances, since the decision rejecting the complaint has no autonomous content, the claim for annulment must be regarded as being directed against the contested decision alone, the legality of which must however be examined by taking into account the reasoning set out in the decision rejecting the complaint (see, to that effect, judgment of 13 December 2017, HQ v CPVO, T‑592/16, not published, EU:T:2017:897, paragraph 21).
The claim for annulment
17In support of the claim for annulment, the applicant puts forward three pleas in law, alleging, first, infringement of the principles of the interests of the service and continuity of service, second, infringement of the requirements for transparency and, third, infringement of the principle of equal treatment.
The first plea in law, alleging infringement of the principles of the interests of the service and continuity of service
18The first plea is divided into two parts concerning, respectively, the interests of the service and continuity of service.
–The first part, concerning the interests of the service
19In the first part, the applicant claims that the contested decision is contrary to the interests of the service which, in her view, require the extension requested to be granted.
20In support of her view, the applicant puts forward four arguments.
21First of all, the applicant claims that a delegation which, under her direction, operates at a high degree of performance and motivation should not be disturbed.
22Next, she claims that a fully operational delegation should be maintained in Ethiopia because of EU aid granted to that country and the risks to the EU posed by the possibility of local or regional destabilisation that could cause a new migration crisis.
23Moreover, the applicant considers that, in theory, she meets the conditions necessary for the position: experience in the diplomatic field, in particular development aid; knowledge acquired about the country and region in question; relationships of trust and respect with local authorities; access to privileged data as a result of her integration into information networks.
24Lastly, she submits that not granting the requested extension could be regarded as constituting the mismanagement of public funds and that that argument could be used in several Member States by far-right parties opposed to European integration.
25Those arguments are contested by the EEAS.
26In that regard, it appears that, in the present case, the applicant challenges a decision concerning her taken in the context of the EEAS policy of staff mobility which involves, in principle, a rotation of each member of staff every four years – that policy being based on the following acts:– Article 2 of Annex X to the Staff Regulations, according to which officials serving in a third country are to be transferred periodically pursuant to a specific procedure referred to as the ‘mobility procedure’;– Article 6(10) of Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service (OJ 2010 L 201, p. 30) according to which ‘the High Representative shall lay down the rules on mobility so as to ensure that the members of the staff of the EEAS are subject to a high degree of mobility’;– the EU Delegations’ guide, which provides that a posting in a delegation normally lasts four years and that the official has the possibility of requesting an extension or an early rotation but that agreement would be given in exceptional, duly substantiated cases only, with due regard to the interests of the service.
27Under that policy of rotation, it should be noted that, according to the case-law, the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, provided such assignment is made in the interest of the service and conforms with the principle of assignment to an equivalent post (see, to that effect, judgments of 23 March 1988, Hecq v Commission, 19/87, EU:C:1998:165, paragraph 6, and of 19 October 2017, Bernaldo de Quiros v Commission, T‑649/16, not published, EU:T:2017:736, paragraph 22).
28In the context of its review of the decisions taken to organise its departments, the Court, where an action has been brought before it, must verify whether the appointing authority has remained within the bounds of its discretion and did not use it in a manifestly wrong way (see, to that effect, judgments of 12 December 2000, Dejaiffe v OHIM, T‑223/99, EU:T:2000:292, paragraph 53, and of 21 September 2004, Soubies v Commission, T‑325/02, EU:T:2004:271, paragraph 50).
29To establish the existence of a manifest error, the applicant must adduce evidence dispelling the plausibility of the assessments made by the administration (see, to that effect, judgment of 24 April 2013, Demeneix v Commission, F‑96/12, EU:F:2013:52, paragraph 45 and the case-law cited).
30In the present case, it appears that that requirement has not been met, as the applicant presented her view of what is in the interests of the service without convincingly challenging the assessments made by the EEAS, the credibility of which she has failed to call into question.
31Accordingly, so far as concerns the first argument, the EEAS was entitled to consider, without making a manifest error of assessment, that the delegation would continue to operate effectively under the direction of a new head of delegation appointed on the basis, inter alia, of his or her management skills.
32With regard to the second argument, the EEAS was entitled to consider, without making a manifest error of assessment, that the difficulties encountered in the country or region in question were no different, in their nature and intensity, from those encountered elsewhere, without this compromising the rotation exercise, since those difficulties could be dealt with in an equally efficient manner by another diplomat, appointed on the basis of the experience and knowledge necessary to occupy that type of position in that kind of delegation.
33Concerning the third argument, the EEAS was entitled to consider, without making a manifest error of assessment, that the qualities identified by the applicant were necessary for any head of delegation in office for a number of years and that to grant the requested extension on that basis would make it practically impossible to implement the rotation exercise at that level of responsibility.
34As for the last argument, the EEAS was able to consider, without making a manifest error of assessment, that a regular rotation of staff within the organisation, in particular the delegation in question, would contribute to the sound management of public funds and to strengthening the image of the EU, in so far as it would be in line with the practice followed in that field in the Member States.
35In that regard, it should be borne in mind that, as stated by the EEAS, mobility is a guiding principle in the organisation of diplomatic services the purpose of which is to avoid excessive proximity, which may result from a long-term presence, between the diplomats and the authorities, organisations and influential circles of the receiving State.
36In so far as those explanations are plausible, it must be found that, having regard to the arguments put forward by the applicant in the first part of the first plea in law, the assessment made by the EEAS does not appear to be vitiated by a manifest error and the first part must therefore be rejected.
–The second part, concerning the continuity of service
37According to the applicant, the continuity of service requires that the requested extension be granted, in so far as the number of staff departures announced in the delegation was such as to destabilise the delegation in the absence of a strong foundation tied to the head of delegation staying in her post.
38That position is disputed by the EEAS.
39In that regard, it should be borne in mind that the interest of the service requires that there be no break in the continuity of the service (see, to that effect, judgment of 23 November 2017, PF v Commission, T‑617/16, not published, EU:T:2017:829, paragraph 100 and the case-law cited) with the consequence that the review must also cover the existence of any manifest errors dispelling the plausibility of the assessments made by the appointing authority (see the case-law cited in paragraphs 28 and 29 above).
40In the present case, the applicant points out that, in addition to her departure, the departure of five other officials in important positions was provided for in the 2017 rotation exercise, namely, on the one hand, amongst EEAS staff members, her assistant, the Head of Administration and the Head of the Political Section and, on the other, amongst staff members from the Directorate-General for International Cooperation and Development, the Head of Cooperation and the Head of the ‘Rural Development and Food Safety Section’.
41In that regard, it should be observed that turnover of staff is inherent to the mobility procedure and does not, in itself, compromise the continuity of service, since that continuity is guaranteed through a dialogue between outgoing staff members, those remaining in their positions and incoming staff members who have been selected on the basis of the knowledge and experience necessary for the type of position in question.
42The argument put forward by the applicant does not undermine the credibility of the assessments made by the EEAS, which was entitled to consider, without making a manifest error of assessment, that, in the present case, the continuity of service was guaranteed, in the context of that dialogue, first, by the deputy head of delegation who had been in that position for two years already and was to remain in that position for another two years, second, by the arrival of a new head of the political section who has an appropriate level of knowledge and experience and, third, by including the post of head of delegation in the list of posts to be filled under the 2017 rotation exercise so that at no point is that post unoccupied.
43In the same way, the EEAS was entitled to consider, without making a manifest error of assessment, that, in order to ensure the continuity of service in the medium term, the new head of delegation should be appointed in 2017 to allow the team to analyse, under that new direction, the developments expected to occur in the country following the elections expected to be held there.
44In the light of the foregoing, it follows that, since no manifest error of assessment has been established, the part concerning the continuity of service must be rejected along with the first plea in law, considered as a whole, in so far as the two parts forming it have been rejected.
The second plea in law, alleging infringement of the requirements for transparency
45The applicant states that the rules of transparency have not been observed, without any real explanation being given besides the oral statement according to which there can be no exceptions to the mobility procedure and which, in any case, is incorrect in the light of other situations in which exceptions have been granted.
46In this respect, it is sufficient to note that, according to settled case-law, the duty to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see judgments of 1 March 2017, Silvan v Commission, T‑698/15 P, not published, EU:T:2017:131, paragraph 17 and the case-law cited, and of 19 July 2017, Parliament v Meyrl, T‑699/16 P, not published, EU:T:2017:524, paragraph 47 and the case-law cited).
47Reproducing the terms of Article 296 TFEU, the purpose of the obligation to state reasons required under the second subparagraph of Article 25 of the Staff Regulations is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error permitting its validity to be contested before the EU courts and, second, to enable the EU judicature to review the lawfulness of the act (see, to that effect, judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 17).
48In the present case, the EEAS stated, in the contested decision, that the refusal to grant the extension was based on the need to ensure the regular rotation of heads of delegation, following a clear policy of mobility after four years in the post.
49That reasoning was repeated in detail in the decision rejecting the complaint, the arguments raised by the applicant having been examined in detail, as is apparent from paragraph 6 above.
50As to the remainder, the argument based on the erroneous nature of the statement of reasons is indissociable from the plea in law alleging infringement of the principle of equal treatment, which will be examined below.
51It is clear from the above that the second plea in law must also be rejected as unfounded.
The third plea in law, alleging infringement of the principle of equal treatment
52The third plea in law is divided into three parts.
–The first part, concerning discrimination on the grounds of race against the applicant
53In the first part, the applicant claims that the rejection of her request was based on anti-Semitic discrimination.
54Regardless of the general nature of those claims, it should be borne in mind that Article 91(2) of the Staff Regulations requires that, for a plea before the EU judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the appointing authority to know the criticisms made by the person concerned of the contested decision (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraphs 71 and 73 and the case-law cited).
55In the present case, the applicant made no mention of suspected anti-Semitic considerations in her complaint. In addition, she did not claim that circumstances arising after her complaint was submitted could give rise to suspected discrimination against her.
56The first part of the third plea in law must therefore be rejected as inadmissible.
–The second part, concerning the extension granted to other heads of delegation
57In the second part, the applicant claims that the EEAS infringed the principle of equal treatment by refusing her extension request but granting those of other heads of delegation in a position comparable to that of the applicant.
58In that regard, it should be borne in mind that the obligation to ensure equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (see judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, EU:C:2010:512, paragraph 54 and the case-law cited).
59According to the case-law, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, EU:C:2010:512, paragraph 55 and the case-law cited).
60The principle is not infringed by differences justified on the basis of objective and reasonable criteria and where the differences are proportionate to the aim pursued by the differential treatment in question (see, to that effect, judgments of 16 March 2004, Afari v ECB, T‑11/03, EU:T:2004:77, paragraph 65, and of 23 January 2007, Chassagne v Commission, F‑43/05, EU:F:2007:14, paragraph 91).
61In its line of argument, the EEAS points out that extension decisions are based on the interests of the service with the principle of equal treatment being difficult to apply because comparisons are complicated by differences between countries.
62In that regard, it should be noted that the principle in question is of general application and applies to acts adopted by the appointing authority within the statutory framework each time a comparison is possible between situations (see, to that effect, judgment of 19 October 2006, Buendia Sierra v Commission, T‑311/04, EU:T:2006:329, paragraph 130).
63Its application is not, in itself, precluded by the fact that decisions concerning extension requests are based on the interests of the service, in so far as those interests constitute objective and reasonable criteria justifying a difference in treatment between officials (see, to that effect, judgment of 19 October 2006, De Smedt v Commission, F‑59/05, EU:F:2006:105, paragraph 76).
64On the basis of the written comments submitted by the parties and the discussions during the hearing, it is apparent that, even if it is not easy, a comparison may be drawn between the responses to extension requests, since such a comparison is performed by the EEAS itself in the decision rejecting the complaint in which it seeks to highlight why the situations of the heads of delegation referred to by the applicant are different to her situation.
65Consequently, the decision rejecting the complaint examines the arguments put forward by the applicant with regard to four requests that were granted even though the persons concerned were in situations comparable to hers in terms of retirement age and levels of political instability in the receiving State.
66That argument must be examined having regard to the case-law giving the administration a wide discretion to take measures in the interests of the service, with the EU courts therefore having to verify, in the context of its review, whether an arbitrary distinction or a manifest error of assessment has been committed (judgment of 25 February 2010, Pleijte v Commission, F‑91/08, EU:F:2010:13, paragraph 58).
67From the discussions between the parties, it is apparent that, of the files relied on by the applicant, two files relate to the rotation exercise during which the applicant’s extension request was submitted, that is to say, the 2017 rotation exercise.
68In one case, the extension was granted, according to the EEAS, to keep a diplomat in office for the usual duration of an overseas posting – four years – since the posting was initially limited to three years because it was a posting to a ‘difficult’ country. In that case, the EEAS sought to bring the duration of the posting for that person in line with the practice followed by the EEAS, that is, a posting for a maximum of four years. According to the EEAS, that situation is different to that of the applicant, since the applicant had been assigned a posting of four years as head of delegation from the outset.
69In the other case, the decision was motivated, according to the EEAS, by the need to leave the head of delegation in office so as to allow the team to monitor, under the direction of that diplomat, developments linked to the elections being held in the receiving State.
70The applicant submits that elections were also held in the country to which she was posted with the result that, for the same reasons, her request should have been granted.
71According to the EEAS, however, those two situations cannot be compared because the elections taken into account when making those decisions were not held at the same time relative to the possible departure of the head of delegation. In the country where the extension was granted, the elections were held before the rotation exercise, which made it desirable to retain the head of delegation in office so as to monitor the developments that followed. The situation was different in the applicant’s country, where the elections followed the departure of the head of delegation, which made it preferable to make an immediate change since the team could then follow the election process under the direction of the new head of delegation.
72In her written comments, the applicant examined two other cases in which she believes that an extension was granted in breach of the principle of equal treatment.
73In that regard, it should be noted that the cases in question concerned earlier rotation exercises with the result that, even if possible, the comparisons were less obvious because priorities and constraints vary over time.
74In one case, the extension was granted, according to the EEAS, in view of the fact that, contrary to the delegation under the direction of the applicant, the delegation in question did not have a deputy head of delegation. In the other, the extension was granted to prevent the departure of the head of delegation coinciding with the departure of the head of the political section, which seemed undesirable, since the delegation had a small team where the continuity of service could not be guaranteed by the remaining officials.
75In any event, in neither of those two cases, nor in the cases examined above, was the decision to grant the extension taken in order to allow the person in question to end his or her career in the position assigned, but, on the contrary, the decision was based on an assessment carried out having regard to the interests of the service and the benefit of keeping the person in question in office in the light of the possible advantage derived from the arrival of a new head of delegation.
76According to the Court, those considerations set out in the decision rejecting the complaint to explain the distinction drawn between the cases are plausible without the applicant having submitted evidence suggesting an arbitrary distinction or a manifest error of assessment could have been made.
77As regards the place that may be given to personal considerations such as the desire to end one’s career in a particular place, it should be borne in mind that decisions must be based on the interests of the service and that, even if the authority may take them into account, such considerations cannot take precedence over other elements considered to be more important in the light of those interests.
78In the light of the foregoing considerations, the second part of the third plea in law must be rejected.
–The third part, concerning measures to be taken with regard to women
79In the third part, the applicant considers that her request should have been granted on the basis of Article 1d(2) and (3) of the Staff Regulations, which, she believes, implies the adoption of measures to offset the under-representation of women in management positions within the EU Civil Service.
80That position is criticised by the EEAS.
81According to Article 1d(2) of the Staff Regulations, full equality in practice between men and women in working life is an essential element to be considered in the implementation of all aspects of the Staff Regulations.
82Under that provision, the principle of equal treatment is not to prevent the institutions of the European Union from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
83Pursuant to Article 1d(3) of the Staff Regulations, the appointing authorities of the institutions are to determine, by agreement, after consulting the Staff Regulations Committee, measures and actions to promote equal opportunities for men and women in the areas covered by the Staff Regulations, and are to adopt the appropriate provisions notably to redress such de facto inequalities that hamper opportunities for women in those areas.
84From those provisions, it is apparent, first, that equality between men and women is an ‘essential’ element to be considered in the implementation of the Staff Regulations, second, that that element must be considered in ‘all’ aspects of that implementation, third, that the institutions may adopt measures to offset the under-representation of women in certain positions and, fourth, the institutions must determine, by agreement, measures to redress de facto inequalities that hamper opportunities for women.
85According to the EEAS, gender cannot be taken into account when taking decisions on extending a head of delegation posting since such decisions must exclusively be based on the interests of the service.
86That position was confirmed in the decision rejecting the complaint in which the EEAS stated that ‘since the extension of the posting of staff in a delegation is based solely on the interests of the service, her gender cannot be taken into account when examining the possibility of extending her posting’.
87That position was also confirmed in the response provided by the EEAS to the written questions put to it by the Court before the hearing, in which it submitted, on the one hand, ‘that there [was] no link between an equal opportunities policy and a policy of mobility within the EEAS’ and, on the other, that ‘processing such a request [for an extension] falls within the framework of the policy of mobility and not the policy of equal opportunities for men and women’.
88At the hearing, the EEAS representative stated, to the same effect, that ‘the policy of mobility [was] a separate policy from the equal opportunities policy’. In response to questions posed as measures of organisation of procedure following the hearing, the EEAS also stated that ‘requests for extension [were] processed in accordance with the interests of the service in each individual case, irrespective of whether the applicant [was] male or female’.
89In that regard, it is important to note that, in adopting the provisions in question, the legislature indicated its willingness to give gender equality, in particular with regard to the representation of women in certain positions, an ‘essential’ place in the consideration of the implementation of ‘all’ aspects of the Staff Regulations.
90That willingness is not demonstrated in the position adopted by the EEAS which, through statements made during the administrative and legal proceedings, stated, by contrast, that, as far as it was concerned, it regarded considerations relating to gender to be beyond the interests of the service.
91The EEAS submits that, as it stands, it is not required by any provision to adopt measures to offset the under-representation of women in certain positions, in so far as such measures may only be adopted pursuant to Article 1d(2) and (3) of the Staff Regulations, which has not yet been implemented.
92Against that background, the question is whether, pending measures to be adopted by the institutions, the institutions may, as claimed by the EEAS, disregard considerations relating to gender, in particular the representation of women in certain positions, when taking decisions concerning the implementation of certain aspects of the Staff Regulations.
93In that regard, it should be observed that, in Article 1d(2) of the Staff Regulations, the legislature not only announces the adoption of measures by the institutions but also states, without the declaration being accompanied by any time limit or condition, and without it being subject to the adoption of certain measures, that gender equality is an ‘essential’ element to be considered in the implementation of ‘all’ aspects of the Staff Regulations.
94It follows that, by excluding gender equality from the considerations surrounding the adoption of the decision concerning the applicant’s extension request, despite that element being regarded as essential in the eyes of the legislature, the EEAS infringed the statutory provisions relied on by the applicant.
95That error is obvious in view of the contrast between, on the one hand, the exclusion of considerations relating to gender in the decision rejecting the complaint and, on the other, the fact that the legislature regarded those considerations as essential.
96However, according to the case-law, the annulment of an administrative decision due to an error is not justified where that error had no decisive influence on the content of that decision (see, to that effect, judgment of 9 June 2015, Navarro v Commission, T‑556/14 P, EU:T:2015:368, paragraph 26).
97In the present case, the operative part of the contested decision could have been different if considerations relating to gender equality had not, as a matter of principle, been excluded at the outset from the assessment undertaken by the EEAS, even though decisions concerning the organisation of its services must fall within the legal framework established by the Staff Regulations.
98For that reason, the third part of the third plea in law must be upheld and the contested decision annulled.
The claim for compensation
99The applicant requests that the EEAS be ordered to pay her a lump sum of EUR 250000 as compensation for the non-material harm suffered or, in the alternative, EUR 200000 or, in the further alternative, EUR 150000, EUR 100000 or EUR 50000.
100Under Article 76(d) of the Rules of Procedure, any application must state the subject matter of the proceedings and contain a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give judgment on the action without recourse to further information. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. More particularly, an application seeking compensation for damage allegedly caused by an EU institution must set out the evidence from which the conduct which the applicant alleges against the institution can be identified, the reasons for which the applicant considers that there is a causal link between the conduct and the damage it claims to have suffered and the nature and extent of that damage (see order of 16 January 2004, Arizona Chemical and Others v Commission, T‑369/03 R, EU:T:2004:9, paragraph 120 and the case-law cited).
101However, it should be found that, as regards the identification of the alleged damage and the causal link between the allegedly unlawful conduct and that damage, the application does not satisfy the requirements laid down by Article 76(d) of the Rules of Procedure.
102The applicant has not submitted any evidence to establish the existence of damage, to measure its extent or to demonstrate the existence of a causal link.
103The claim for compensation must therefore be rejected as inadmissible.
Costs
104Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
105In the present case, since the EEAS has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
Operative part
On those grounds,THE GENERAL COURT (First Chamber)hereby:
1.Annuls the decision of the European External Action Service (EEAS) of 30 June 2016 rejecting the request submitted by Ms Chantal Hebberecht to extend her posting as Head of the European Union delegation to Ethiopia by one year;
2.Dismisses the action as to the remainder;
3.Orders the EEAS to pay the costs.
Delivered in open court in Luxembourg on 27 November 2018.
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