JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)
23 January 2002 (1) (Officials - Secondment in the interests of the service - Article 38 of the Staff Regulations - Political group - Early termination of secondment - Rights of the defence - Non-contractual liability of the Community)
In Case T-237/00,
Patrick Reynolds, an official of the European Parliament, residing in Brussels (Belgium), represented by P. Legros and S. Rodrigues, avocats, with an address for service in Luxembourg,
applicant,
v
European Parliament, represented by H. von Hertzen and D. Moore, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for, first, annulment of the decision of 18 July 2000 of the Secretary-General of the Parliament terminating the applicant's secondment in the interests of the service to the political group Europe of Democracies and Diversities and reinstating him in the Directorate-General for Information and Public relations and, second, compensation for the harm sustained by the applicant owing to the adoption of that decision by the defendant and to the actions of the political group and of certain of its members,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of: M. Jaeger, President, K. Lenaerts and J. Azizi, Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 14 November 2001,
gives the following
Judgment
Legal framework
1.
Article 37 of the Staff Regulations of Officials of the European Communities (the Staff Regulations) provides:
An official on secondment is an established official who, by decision of the appointing authority:
(a) has been directed in the interests of the service:
- to serve temporarily in a post outside his institution; or
- to assist temporarily a person holding an office provided for in the Treaties establishing the Communities or the Treaty establishing a Single Council and a Single Commission of the Communities, or with an elected President of one of the institutions or organs of the Communities or the elected Chairman of one of the political groups in the European Parliament;
....
2.
Article 38 of the Staff Regulations provides:
Secondment in the interests of the service shall be governed by the following rules:
(a) the decision on secondment shall be taken by the appointing authority after hearing the official concerned;
(b) the duration of secondment shall be determined by the appointing authority;
(c) at the end of every six months, the official concerned may request that this secondment be terminated;
(d) an official on secondment pursuant to the first indent of Article 37(a) is entitled to receive a differential payment where the total remuneration carried by the post to which he is seconded is less than that carried by his grade and step in his parent institution; he shall likewise be entitled to reimbursement of all additional expenses entailed by his secondment;
(e) an official on secondment pursuant to the first indent of Article 37(a) shall continue to pay pension contributions based on the salary for active employment carried by his grade and step in his parent institution;
(f) an official on secondment shall retain his post, his right to advancement to a higher step and his eligibility for promotion;
(g) when his secondment ends an official shall at once be reinstated in the post formerly occupied by him.
Facts of the case and procedure
3.
At the end of September 1999, the Parliament published in its internal bulletin No 25/99 a vacancy notice concerning the post as secretary-general of the political group Europe of Democracies and Diversities (the EDD Group). That notice was worded as follows:
1 Secretary-General (M/F) (Grade A2) (temporary agent)
Thorough knowledge of written and spoken French and English essential.
Place of employment: BRUSSELS
Closing date for applications: 18 October 1999
Starting date: from Monday, 1 November 1999.
4.
Following publication of that notice, the applicant, who was an official in the Directorate-General for Information and Public Relations of the Parliament, in Grade LA 5, Step 3, applied for the post and was invited to attend for interview with the EDD Group; the interview took place on 3 November 1999.
5.
By letter of 12 November 1999, the President of the EDD Group informed the Secretary-General of the Parliament that the bureau of the group had decided to appoint the applicant to the post of Secretary-General and requested him to authorise the applicant's secondment to the EDD Group.
6.
On 22 November 1999, the applicant began to work for the EDD Group.
7.
By decision of 11 January 2000, the Secretary-General of the Parliament confirmed that, on the basis of subparagraph (a) of the first paragraph of Article 37 of the Staff Regulations, the applicant was seconded in the interests of the service to the EDD Group, in Grade A 2, Step 1, for the period 22 November 1999 to 30 November 2000. A certified true copy of the original of that decision was sent to the applicant on 17 January 2000.
8.
On 18 May 2000, the President of the EDD Group informed the applicant, for the first time, that at a meeting of the members of the bureau of the group which had taken place a few hours earlier, a number of sub-groups had indicated that they had lost confidence in the applicant and that, consequently, it had been decided that his secondment to the EDD Group would not be extended after 30 November 2000.
9.
On 24 May 2000, at a second interview with the applicant, the President of the EDD Group confirmed that the political group wished to part company with the applicant. On the same day, the applicant informed the President that he proposed to take four weeks' leave of absence in order to consider certain matters; the President of the group agreed. The applicant also consulted his own doctor, who concluded that he was unfit for work owing to his poor state of health.
10.
After 24 May 2000 the applicant did not attend work owing to his poor state of health.
11.
On 23 June 2000, the applicant submitted a complaint pursuant to Article 90 of the Staff Regulations to the Secretary-General of the Parliament in respect of the acts adversely affecting him in the course of his duties with the EDD Group. According to the applicant, those acts included the fact that his access to the accounts of the EDD Group had been impeded, although such access was inherent in the very nature of the office of Secretary-General of a political group, and the fact that contradictory instructions had been given to him in a climate of mental harassment. The applicant requested that a decision be adopted in order to put an end to those acts and that their negative effects be remedied. However, he stated that he had no intention of resigning from his post as Secretary-General of the EDD Group.
12.
On the same day, the applicant sent a formal request to the President of the Court of Auditors for an examination of the accounts of the EDD Group, stating, first, that such an examination was in the interests of the group and in the public interest, and, second, that his access to those accounts had been impeded.
13.
After learning from, in particular, the press that such a request had been sent to the Court of Auditors, the President of the EDD Group wrote to the President of the Court of Auditors on 30 June 2000 stating that the Court of Auditors could have free access to the accounts of his group and that the probable explanation for the applicant's request was that the applicant had been informed on 18 May 2000 that his secondment to the EDD Group would not be extended.
14.
On 1 July 2000, the applicant drew up a memorandum (the memorandum of 1 July 2000) setting out in detail his experience while on secondment to the EDD Group. The applicant supplemented that memorandum by an addendum of 2 February 2001.
15.
On 4 July 2000, following a decision of the bureau of the EDD Group (the decision of 4 July 2000), the President of the group requested the Secretary-General of the Parliament to terminate the applicant's secondment as soon as possible.
16.
On 18 July 2000, the Secretary-General of the Parliament, in his capacity as appointing authority, decided to terminate the applicant's secondment in the interests of the service to the EDD Group with effect from the evening of 14 July (Article 1 of the decision) and to reinstate him in a post as principal translator in the Directorate-General for Information and Public Relations of the Parliament in Grade LA 5, Step 3, with effect from 15 July 2000, with seniority in step fixed at 1 January 2000 and with Brussels as his place of employment (Article 2 of the decision) (the decision being hereinafter referred to as the contested decision).
17.
That decision was notified to the applicant by letter of 25 July 2000.
18.
On 8 August 2000, the applicant's legal representatives requested the Secretary-General of the Parliament to send them the documents on which the contested decision was based, in particular the letter from the President of the EDD Group of 4 July 2000 and the proposal of the Director-General for Personnel of the Parliament referred to in the contested decision.
19.
On the basis of Article 90(2) of the Staff Regulations, the applicant submitted a second complaint to the Secretary-General of the Parliament, dated 28 August 2000, in which he requested that the contested decision be withdrawn and requested reparation of the harm which it caused him.
20.
By application lodged at the Registry of the Court of First Instance on 8 September 2000, the applicant brought the present action.
21.
By separate document lodged at the Registry of the Court of First Instance on the same date, the applicant sought a stay of...
