Judgments nº T-271/10 RENV II of Tribunal General de la Unión Europea, November 18, 2020

• Resolution Date: November 18, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-271/10 RENV II

(Common foreign and security policy - National staff member on secondment to the EUPM in Bosnia and Herzegovina - Redeployment decision - Misuse of powers - Interests of the service - Psychological harassment - Punitive nature of the redeployment - Liability - Non-material damage)

In Case T-271/10 RENV II,

H, represented by L. Levi, lawyer,

applicant,

v

Council of the European Union, represented by A. Vitro and A. de Elera-San Miguel Hurtado, acting as Agents,

defendant,

ACTION, first, on the basis of Article 263 TFEU for annulment of (i) the decision of 7 April 2010, signed by the Chief of Personnel of the European Union Police Mission (EUPM) in Bosnia and Herzegovina, by which the applicant was redeployed to the post of Criminal Justice Advisor - Prosecutor at the regional office in Banja Luka (Bosnia and Herzegovina) and (ii) of the decision of 30 April 2010, signed by the Head of EUPM referred to in Article 6 of Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (OJ 2009 L 322, p. 22), indicating the operational reason for her redeployment and, second, an action on the basis of Article 268 TFEU seeking compensation for the harm allegedly suffered by the applicant.

THE GENERAL COURT (Third Chamber),

composed of A.M. Collins, President, V. Kreuschitz and Z. Csehi (Rapporteur), Judges,

Registrar: E. Artemiou, administrator,

having regard to the written part of the procedure and further to the hearing on 1 July 2020,

gives the following

Judgment

Background to the dispute

1 By Council Joint Action 2002/210/CFSP of 11 March 2002 on the European Union Police Mission (OJ 2002 L 70, p. 1), the European Union Police Mission (EUPM) was established to follow on from the United Nations International Police Task Force in Bosnia and Herzegovina.

2 The EUPM, which started on 1 January 2003, was extended a number of times, in particular by Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (OJ 2009 L 322, p. 22).

3 The applicant is an Italian judge who was seconded to the EUPM in Sarajevo (Bosnia and Herzegovina) by order of the Italian Minister for Justice of 16 October 2008, in order to perform the duties of ‘Criminal Justice Unit Adviser’ from 14 November 2008.

4 By orders of the Italian Minister of Justice of 7 April 2009 and 9 December 2009, the applicant had her secondment extended in order to perform the duties of Chief of Legal Office, respectively until 31 December 2009 and then until 31 December 2010.

5 Following the restructuring of the EUPM on 1 January 2010, the post of Chief of Legal Office held by the applicant was renamed ‘Senior Legal Advisor/Legal Counsel’.

6 By letter of 17 March 2010, the applicant and one of her colleagues, A, a Legal Officer at the EUPM, informed their supervisors of alleged irregularities in the management of the EUPM (‘the letter of 17 March 2010’). On 17 March 2010, that letter was given to the applicant’s supervisor, the Head of the Policy Unit of the EUPM. On 26 March 2010, a list of alleged irregularities referred to in the letter of 17 March 2010 was sent to the office of the Head of the EUPM with a view to a meeting with him.

7 By decision of 7 April 2010, signed by the Chief of Personnel of the EUPM, the applicant was redeployed, due to ‘operational reasons’, to the post of Criminal Justice Adviser - Prosecutor (ROBL-04) at the regional office in Banja Luka (Bosnia and Herzegovina), with effect from 19 April 2010 (‘the decision of 7 April 2010’).

8 By email of 15 April 2010, an official in the Permanent Representation of the Italian Republic to the European Union informed the applicant that the decision of 7 April 2010 had been suspended.

9 By decision of 30 April 2010 signed by the Head of the EUPM, referred to in Article 6 of Decision 2009/906, the Head of the EUPM confirmed the decision of 7 April 2010. In the decision, he stated that he himself had taken the decision of 7 April 2010 and that the operational reason for the applicant’s redeployment was based on the need for prosecutorial advice in the Banja Luka office (‘the decision of 30 April 2010’).

10 By letter of 26 May 2010, the Head of the EUPM terminated A’s contract for loss of trust and confidence.

11 On 4 June 2010, the applicant brought an action before the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio, Italy) for annulment of the decision of 7 April 2010 and compensation for the harm she had allegedly suffered. She also made an application before that court to suspend the decision of 7 April 2010.

12 The applicant was placed on sick leave from August 2010 until the end of her secondment to the EUPM.

13 The applicant’s secondment to the EUPM ended on 31 December 2010.

14 The EUPM ended during 2012.

15 Upon a complaint brought by A, the European Ombudsman concluded in her decision of 4 June 2015, that this was a case of maladministration. The Ombudsman criticised, inter alia, the lack of established procedures to deal with irregularities pointed out by whistle-blowers and ensure the latters’ protection

Procedure before the General Court and the Court of Justice

16 By application lodged at the Registry of the General Court on 16 June 2010, the applicant brought an action against the Council of the European Union, the European Commission and the EUPM seeking annulment of the decisions of 7 and 30 April 2010 (together, ‘the contested decisions’).

17 On 17 June 2010, the applicant also lodged an application for interim measures seeking, inter alia, the suspension of the contested decisions. By order of 22 July 2010, H v Council and Others (T-271/10 R, not published, EU:T:2010:315), the President of the General Court dismissed that application for interim measures on the ground of lack of urgency and reserved the costs.

18 By order of 10 July 2014, H v Council and Others (T-271/10 R, not published, ‘the initial order’, EU:T:2014:702), the General Court dismissed the action as inadmissible, taking the view that it did not have jurisdiction to determine the claim.

19 The applicant brought an appeal against the initial order, arguing, in essence, that the General Court had erred in law in declaring that it lacked jurisdiction to determine the action.

20 By judgment of 19 July 2016, H v Council and Others (C-455/14 P, EU:C:2016:569) (‘the first appeal judgment’), the Court of Justice set aside the initial order, dismissed the action as inadmissible in so far as it was directed against the Commission and the EUPM, referred the case back to the General Court to rule on the merits of the action in so far as it was directed against the Council and reserved the costs.

21 By judgment of 11 April 2018, H v Council (T-271/10 RENV, EU:T:2018:180) (‘the judgment after referral’) the General Court dismissed the action as unfounded.

22 The applicant brought an appeal against that judgment after referral. By judgment of 4 December 2019, H v Council (C-413/18 P, not published, EU:C:2019:1044) (‘the second judgment on appeal’) the Court set aside the judgment after referral, and referred the case back to the General Court for it to rule on the third to fifth pleas raised in the action for annulment and the claim for damages, and reserved the costs.

23 By letters of 9 December 2019, the Registry of the General Court invited the parties to submit their written observations in accordance with Article 217(1) of the Rules of Procedure of the General Court on the conclusions to be drawn from the second judgment on appeal in the present proceedings. The applicant and Council submitted their observations within the prescribed period.

24 By decision of the President of the Court of 27 February 2020, the present case was assigned to the Third Chamber.

25 On the proposal of the Judge Rapporteur and by decision of the President of the Chamber of 5 March 2020, priority treatment was granted to this case.

26 By letters of 9 March 2020, the Court Registry invited the parties to submit supplementary written observations, in accordance with Article 217(3) of the Rules of Procedure. The parties lodged their supplementary observations by the deadline prescribed, namely 25 March 2020.

27 Following the closure of the written part of the proceedings, on 8 April 2020, the applicant lodged, a request for a hearing.

28 Acting on a proposal from the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 89 of the Rules of Procedure, requested that the parties give written answers to some questions and that the Council lodge a document. The parties complied with those measures of organisation of procedure within the prescribed period.

29 At the hearing on 1 July 2020, the parties presented oral argument and replied to the oral questions put by the Court.

Forms of order sought

30 In the application, the applicant claimed that the Court should:

- annul the decision of 7 April 2010 and, if necessary, the decision of 30 April 2010;

- order the Council, the Commission and the EUPM to pay her damages to compensate for the harm suffered by her, assessed ex aequo et bono at EUR 30 000;

- order the Council, the Commission and the EUPM to pay the costs, increased by interest of 8%.

31 In the reply, the applicant amended her claim to add the sum of EUR 8 000 to the total amount of damages sought and to withdraw the action against the EUPM.

32 In her observations after the first referral, the applicant amended her claim so that the action is directed solely against the Council. At the same time, she amended her claim so that, first, the action no longer seeks the annulment of the contested decisions, but only that there is a ruling on their illegality and that, second, the damages also cover the loss suffered as a result of the impossibility of annulling the contested decisions. During the proceedings after the first referral...