Judgments nº T-334/16 P of Tribunal General de la Unión Europea, October 25, 2018

• Resolution Date: October 25, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-334/16 P

(Appeal - Civil service - Temporary staff - Transfer of CEPOL’s seat in Bramshill (United Kingdom) to Budapest (Hungary) - Reassignment of staff - Act not open to challenge - Inadmissibility of the action before the Civil Service Tribunal)

In Case T-334/16 P,

APPEAL brought against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 11 April 2016, FN and Others v CEPOL (F-41/15 DISS II, EU:F:2016:70), and seeking to have that judgment set aside,

FN, member of the temporary staff of the European Union Agency for Law Enforcement Training,

FB, member of the temporary staff of the European Union Agency for Law Enforcement Training,

FQ, member of the temporary staff of the European Union Agency for Law Enforcement Training,

represented by L. Levi and A. Blot, lawyers,

appellants,

the other party to the proceedings being

European Union Agency for Law Enforcement Training (CEPOL), represented initially by F. Bánfi and R. Woldhuis, and subsequently by R. Woldhuis and D. Schroeder, acting as Agents, and by B. Wägenbaur, lawyer,

defendant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed of M. Jaeger, President, M. van der Woude (Rapporteur), S. Frimodt Nielsen, H. Kanninen and D. Gratsias, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written procedure and further to the hearing on 16 January 2018,

gives the following

Judgment

1 By their appeal lodged under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellants, FN, FP and FQ, ask the General Court to set aside the judgment of the European Union Civil Service Tribunal (Third Chamber) of 11 April 2016, FN and Others v CEPOL (F-41/15 DISS II, ‘the judgment under appeal’, EU:F:2016:70), by which the Tribunal dismissed their action for, first, annulment of Decision No 17/2014/DIR of the Director of the European Police Training College (CEPOL) (now European Union Agency for Law Enforcement Training) of 23 May 2014 concerning the relocation of CEPOL to Budapest (Hungary) (‘the contested decision’) and, so far as necessary, the decisions of CEPOL of 28 November 2014 rejecting their complaints against the contested decision (‘the decisions rejecting the complaints’), as well as, second, compensation from CEPOL for the damage allegedly suffered.

Background to the dispute

2 The factual background to the dispute is set out in the submissions of the parties before the Tribunal and in paragraphs 7 to 38 of the judgment under appeal. They may, for the purposes of the present judgment, be summarised as follows.

3 On 22 December 2000, the Council of the European Union adopted Decision 2000/820/JHA of 22 December 2000 establishing CEPOL (OJ 2000 L 336, p. 1).

4 By decision 2004/97/EC, Euratom taken by common agreement between the Representatives of the Member States, meeting at Head of State or Government level, of 13 December 2003 on the location of the seats of certain offices and agencies of the European Union (OJ 2004 L 29, p. 15), the seat of CEPOL was established at Bramshill (United Kingdom).

5 On 20 September 2005, the Council adopted Decision 2005/681/JHA establishing CEPOL and repealing Decision 2000/820 (OJ 2005 L 256, p. 63). Article 4 of Decision 2005/681 provides that ‘the seat of CEPOL shall be in Bramshill, United Kingdom’.

6 Between 2009 and 2012, CEPOL engaged the appellants as members of the temporary staff under Article 2 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’). Article 2(2) of their respective contracts of employment stipulated that ‘the place of employment [was] the official seat of CEPOL in Bramshill, United Kingdom’.

7 On 12 December 2012, the Home Secretary of the United Kingdom of Great Britain and Northern Ireland informed the Director of CEPOL of the Home Office’s decision to close the national police training site located at Bramshill, which also housed CEPOL’s premises. The Home Secretary indicated that that site would be sold between then and 2014 and that she was aware of the European Commission’s intention to propose, at the beginning of 2013, that a new regulation be adopted to govern the functioning of CEPOL or, potentially, to provide for the merging of that agency with the European Police Office (Europol). She stated that the adoption of that new regulation would be an opportunity for the Member States to come to an agreement regarding a new seat for CEPOL, should it remain a fully-fledged agency of the European Union.

8 On 8 October 2013, in the margins of a meeting of the ‘Justice and Home Affairs’ Council configuration, the Member States decided by common agreement that CEPOL would continue to be a fully-fledged agency of the European Union and would be hosted in Budapest once it had left the Bramshill site.

9 On 15 May 2014, the European Parliament and the Council adopted Regulation (EU) No 543/2014 amending Decision 2005/681 (OJ 2014 L 163, p. 5). Pursuant to Article 1 of that regulation, Article 4 of Decision 2005/681 was amended as follows: ‘The seat of CEPOL shall be in Budapest, Hungary.’

10 On 23 May 2014, the Director of CEPOL, in his capacity as the authority empowered to conclude contracts of employment (‘the AECE’), adopted the contested decision. Article 1 of that decision, entitled ‘Date of relocation’, provides that ‘all staff ... are expected to take up duties at the new CEPOL headquarters, located in ... Budapest on 1 October 2014, or at a date agreed between the Director and the staff member [concerned and that n]on-compliance with this instruction will be considered as resignation with [effect from] 30 September 2014’.

11 Article 2 of the contested decision, entitled ‘Staff to inform CEPOL’, is worded as follows:

‘All staff are invited to indicate in writing to the Director their intention to join CEPOL at its new location by 30 June 2014.

In the event [that] a [given] staff member informs the Director, by the deadline, that s/he does not wish to relocate to Budapest, the Director [may] use this information to start a procedure to establish a reserve list for the position of this staff member.

Staff members are reminded of the terms of the resignation notice stipulated in their contract. Deviation from the terms of notice can be agreed with the Director on an individual basis.’

12 On 30 June 2014, the appellants informed the Director of CEPOL that they wished to continue their respective contractual employment relationships at CEPOL’s new seat in Budapest, but that their reply did not bind them and did not affect the legality of the procedure.

13 On 13 August, 18 August and 19 August 2014, respectively, the appellants lodged a complaint against the contested decision, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). FP argued, in essence, that the contested decision breached, first, his contract of employment by unilaterally amending his place of employment and, second, his legitimate salary expectations, which depended on the application of the correction coefficient provided for the United Kingdom.

14 FQ and FN both maintained that the amendment of their place of employment constituted an abnormal and unforeseeable event and could not be imposed without their consent and suitable financial compensation. FQ also complained that the correction coefficient provided for Hungary would now be applied to her salary instead of the - much higher - coefficient applicable to the United Kingdom which she had expected to receive throughout her term of employment. In those conditions, FQ considered that she should be granted suitable financial compensation.

15 FN moreover claimed that there had been an infringement of the principle of the protection of legitimate expectations in the light of the clear and specific assurances he had been given that he would work at Bramshill for the entirety of the duration of his contract. In addition, he criticised, first, the brevity of the period he had been given to inform CEPOL whether or not he was joining the new seat in Budapest and, second, the fact that the contested decision offered him resignation without financial compensation as the sole alternative to relocating to Budapest.

16 On 1 October 2014, the appellants took up their duties at CEPOL’s new seat in Budapest.

17 On 28 November 2014, the Director of CEPOL, in his capacity as the AECE, rejected the appellants’ complaints. To that end, the Director of CEPOL inter alia highlighted (i) that the decision to transfer CEPOL’s seat had been adopted by the EU legislature, which has a broad discretion in such matters; (ii) that no specific assurance had been given to the appellants as regards benefiting from the correction coefficient applicable to the United Kingdom throughout the term of their employment; (iii) that, in accordance with the case-law, the AECE could decide, in the interests of the service, to reassign its members of staff to other places of employment; (iv) that it was not in the interests of the service of CEPOL to keep staff at Bramshill, when CEPOL’s activities and jobs were now located in Budapest; (v) in the decisions rejecting the complaints of FN and of FQ, that CEPOL’s staff had long been informed of CEPOL’s change of seat, even if the precise timeline had not been announced until May 2014, and that the reason for the short response period which it had laid down in the contested decision was the need to organise the relocation quickly in the light of the request of the Home Secretary of the United Kingdom that the Bramshill site be vacated by 30 September 2014, and (vi) regarding FQ’s request for financial compensation, that she was eligible, under the conditions laid down in the Staff Regulations, to have her relocation costs reimbursed and to receive daily allowances as well as the installation allowance.

Proceedings at first instance and judgment under appeal

18 By application lodged at the...