C-111/02

1 — Original language: Durch. (a) has been directed in the interests of the 2 — ECR II-163. service: I - 5477

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— to serve temporarily in a post outside (c) at the end of every six months, the his institution; or official concerned may request that this secondment be terminated;

— to assist temporarily a person holding an office provided for in the Treaties establishing the Communities or the (d) an official on secondment pursuant to Treaty establishing a Single Council the first indent of Article 37(a) is and a Single Commission of the Com- entitled to receive a differential pay- munities, or with an elected President ment where the total remuneration of one of the institutions or organs of carried by the post to which he is the Communities or the elected Chair- seconded is less than that carried by his man of one of the political groups in grade and step in his parent institution; the European Parliament; he shall likewise be entitled to reim- bursement of all additional expenses entailed by his secondment;

(e) an official on secondment pursuant to 4. Under Article 38 of the Staff Regula- the first indent of Article 37(a) shall tions: continue to pay pension contributions based on the salary for active employ- ment carried by his grade and step in his parent institution;

'[s]econdment in the interests of the service shall be governed by the following rules:

III— Facts and procedure at first instance drew attention to various practices within the EDD Group which had impeded the performance of his duties, and requested that an end be put to those practices. He also requested the President of the Court of 5. I shall confine myself to giving a brief Auditors to examine the accounts of the summary of the most important facts EDD Group. In addition, in a memoran- underlying the judgment of the Court of dum of 1 July 2000, he set out a detailed First Instance. For a detailed account of account of his experiences while on second- those facts and of the procedure followed ment to the EDD Group. Following that, on before the Court of First Instance, I would 4 July 2000, the chairman of the EDD refer to paragraphs 3 to 30 of the contested Group requested the Secretary-General of judgment. the Parliament to terminate the applicant's secondment as soon as possible. Then, by decision of 18 July 2000, the latter, in his capacity as appointing authority (herein- after 'the appointing authority') terminated Mr Reynolds' secondment in the interests of 6. At the request of the EDD Group, the the service with effect from 14 July and Secretary-General of the Parliament agreed, reinstated him in a post as principal by decision of 11 January 2000, to the translator in the Parliament's Directorate- secondment of Mr Reynolds, an official in General for Information and Public Rela- that institution's Directorate-General for- tions at his original grade and step. Information and Public Relations, in order to give him the opportunity to serve for the period from 22 November 1999 to 30 November 2000 in the post of secretary- general of the EDD Group. After Mi- Reynolds had served in that post for six months, he was informed by the chairman 8. By application of 8 September 2000, Mr of the EDD Group that, at a meeting of the Reynolds brought an action before the bureau of the group, a number of sub- Court of First Instance for annulment of groups had indicated that they no longer the decision of the Secretary-General of the had confidence in him. Consequently, it had Parliament of 18 July 2000. He also sought been decided that his secondment would compensation for the pecuniary and non- not be extended beyond 30 November pecuniary harm which he had sustained as a 2000. That decision was confirmed on 24 consequence of the contested decision and May 2000 in a second interview between the practices of the EDD Group and its Mr Reynolds and the chairman of the EDD members. Group. Mr Reynolds then reported sick and has not attended work since.

11. The Parliament claims that the Court — order Mr Reynolds to pay all the costs should: of the proceedings on his cross-appeal;

— set aside the contested judgment, and in particular paragraphs 1, 2, 4 and 5 — remove from the file the documents in of the operative part; Annexes 1 and 2 to the response. I - 5480

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12. Mr Reynolds contends that the Court — not remove from the file the documents should: in Annexes 1 and 2 to the response.

— confirm paragraphs 1,2,5 and 6 of the operative part of the contested judg- ment; V — Appeal and Pleas in law

13. The Parliament puts forward the fol- — set aside paragraph 4 of the operative lowing pleas in law in support of its claim part of the contested judgment; that the judgment of the Court of First Instance should be set aside. The judgment:

— contains insufficient and contradictory an official has been seconded that his grounds with regard to the significance secondment be terminated in the interests of the effects of reinstatement on the of the service does not mean that the material situation of the seconded appointing authority has no discretion in official. the matter and is required to comply with the request. When it receives such a request, the appointing authority is required at the very least to ascertain, neutrally and objec- tively, whether the request is beyond all 14. I shall confine myself below to giving doubt the valid expression of the service to an account of the most important argu- which or the person to whom the official ments put forward in support of those pleas was seconded and also that it is not based in law by the Parliament and against them on manifestly illegal grounds. The appoint- by Mr Reynolds. ing authority cannot terminate a second- ment if those minimum conditions are not satisfied.'

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18. With regard to the first minimum unable to satisfy the minimum conditions condition: that the appointing authority without infringing the prerogatives of the must ascertain that the request is beyond political group to which the official was all doubt the valid expression of the service seconded. to which or the person to whom the official is seconded, the Parliament observes that it is unclear why that should be necessary in a case where the appointing authority had no reason to doubt the genuineness of the 20. Moreover, the appointing authority request concerned. Moreover, the Parlia- would inevitably be forced to deliver a ment raises the question of how it could subjective political judgment on the service carry out such an ascertainment objectively in question. That would be incompatible and neutrally. with the office of the Secretary-General of the Parliament who, pursuant to Rule 182 of the Rules of Procedure of the Parliament, is obliged to perform his duties conscien- tiously and with absolute impartiality.

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is likewise no mention in the decision at 24. With regard to this part of the con- issue. Mr Reynolds is, moreover, of the tested judgment, the Parliament objects opinion that both the case-law on the basis primarily to the fact that the Court of First of which a political group is allowed to Instance accepted, without reference to the terminate a contract unilaterally without existing case-law and without further sub- giving reasons for the termination (Schert- stantiation, that the appointing authority zer and Speybrouck) and the judgment in B had what it described in paragraph 114 of v Parliament are contrary to fundamental the contested judgment as 'a margin of rights. He requests that the Court review discretion, limited, admittedly, but not non- them in the light of the principles of the rule existent, as regards the exercise of the of law on which the European Union is power to terminate the applicant's second- founded, the European Convention for the ment before expiry of the period initially Protection of Human Rights and Funda- envisaged'. Paragraph 81 of the contested mental Freedoms and the Charter of judgment describes in further detail the fundamental rights of the European Union. content of that margin of discretion. According to the Court of First Instance, in a case such as the present one, the appointing authority must, when con- fronted with a request to terminate a secondment, ascertain, 'neutrally and objec- tively', whether the request 'is beyond all doubt the valid expression of the service to Assessment of the first two pleas in law which or the person to whom the official was seconded' and that it 'is not based on manifestly illegal grounds'. If those two minimum conditions are not satisfied, the appointing authority cannot terminate the secondment.

26. There is no dispute that, as the Court the appointing authority gather sufficient of First Instance held in paragraph 49 of the information, from whatever source, to contested judgment (and confirmed in enable it properly to weigh the interests paragraph 78 of that judgment), the power involved. It must therefore at least satisfy of the appointing authority, provided for in itself as to the reasons which prompted the Article 38(b) of the Staff Regulations, to service to which or the person to whom the determine the duration of the secondment official concerned is seconded to terminate also implies the possibility of altering that prematurely or otherwise alter the duration. The question of shortening the secondment. That includes the information duration of a secondment arises where the described as minimum conditions by the secondment is manifestly no longer serving Court of First Instance, such as ascertaining its purpose. that the request is beyond all doubt the valid expression of the service to which or the person to whom the official is seconded and also that it is not based on manifestly illegal grounds. 27. Whether that is the case is a matter for the appointing authority to assess and can in no circumstance be regarded as a matter of routine. The appointing authority must form an opinion as to the usefulness of 29. The appointing authority's obligation continuing the secondment in the interests described above, which arises from its of the service. The point of view of the responsibility for its staff on the one hand service to which or the person to whom the and from the duty of care on the other, official concerned is seconded is of course applies in general and regardless of whether of decisive significance in that regard. it has been complied with in the present However, that does not take away the fact case. The important point is that, even that the appointing authority has a respon- where one particular solution to a given sibility of its own when adopting measures conflict situation involving an official on which affect the legal situation of the secondment is inevitable, the appointing officials under its jurisdiction. Moreover, authority must form its own opinion on the the appointing authority must also make matter and to that extent necessarily also sure that such measures are adopted in the has a margin of discretion of its own. interests of the service. As the Court of First Instance held in paragraph 50 of the contested judgment, the interests of the service form part of the very essence of secondment provided for in subparagraph (a) of the first paragraph of Article 37 of the 30. As proof that it has no discretion in a Staff Regulations. case such as this, the Parliament refers to the case-law of the Court of First Instance and the Court of Justice concerning situa- tions in which a political grouping termi- nated an employment relationship with a 28. That responsibility of the appointing temporary official. 6It is clear from that authority implies that a decision to termi- nate a secondment must be taken with due care. That due care requires in general that 6 — See point 19 of this Opinion.

33. In the light of the foregoing, the pleas 31. In my opinion, however, that case-law in law put forward by the Parliament is not relevant for the purpose of settling the alleging insufficient grounds and failure to point of law at issue here. The contested have regard to the existing case-law on the judgment relates to the appointing author- extent of the competence of the appointing ity's decision to terminate Mr Reynolds' authority cannot be accepted. The Court of secondment and not to the EDD Group's First Instance was entitled, on the basis of decision. Although the appointing author- the considerations set forth in paragraphs ity's decision is consequent upon the EDD 50 to 52 and 78 to 82 of its judgment, to Group's decision to sever the working conclude that, in a case such as this, the relationship with Mr Reynolds, it must be appointing authority has a margin of distinguished from the latter decision in a discretion of its own and that it is required legal sense. The fact that, according to the to use that discretion in order to ascertain case-law cited, the EDD Group was entitled whether the minimum conditions men- to decide unilaterally to discontinue the tioned in the judgment have been satisfied. working relationship with Mr Reynolds and then to request the appointing author- ity to terminate his secondment does not mean, as stated above, that the appointing authority was released from the obligation to form its own opinion on the matter. In short, that case-law does not affect the B — Contradictory grounds with regard to discretion of the appointing authority. the alleged discretion of the appointing authority

Instance states, in reference to paragraph Instance in regard to the discretion of the 81, that in the present case the appointing appointing authority in paragraph 81 of the authority had a 'margin of discretion, contested judgment on the one hand and limited, admittedly, but not non-existent', paragraphs 106, 109 and 114 of the as regards the power to terminate Mr contested judgment on the other refer to Reynolds' secondment. However, para- different obligations of the appointing graph 114 is not referring to the margin authority. Whereas the subject-matter of of discretion referred to in paragraph 81, paragraph 81 is ascertainment of the but to the appointing authority's obligation genuineness of the request, paragraphs to consult Mr Reynolds beforehand in 106, 109 and 114 concern the obligation order to be able to take his point of view to hear the official concerned before a into account. Paragraphs 106 and 109 of decision is taken. The Parliament infers the judgment, which are confirmed in from this that the grounds of the judgment paragraph 114, refer to that obligation. In are inherently contradictory. the Parliament's view, it is clear that consulting Mr Reynolds before taking the decision to terminate his secondment, as required by the Court of First Instance in 37. I do not share that view of the paragraphs 106, 109 and 114 of the Parliament.

35. Mr Reynolds disputes the claim that information which serves as the basis for the grounds of the contested judgment are the decision to be taken by it is correct and contradictory. He points out that a pre- as complete as possible. Thus the Court of liminary consultation with him would have First Instance was entitled, without coming enabled the appointing authority to have into conflict with any rule of law, to take his version of the facts at its disposal and the view that the appointing authority must thus to avoid basing its assessment solely on ascertain, neutrally and objectively, the letter from the chairman of the EDD whether the request is beyond all doubt

As Mr Reynolds observes, hearing his point of view as well specifically 36. The Parliament argues that the con- enables the appointing authority to form an siderations set forth by the Court of First objective opinion.

38. Since there is no contradiction between 40. The Parliament observes that, generally what the Court of First Instance stated by speaking, the case-law of the Court of First way of grounds in paragraph 81 of the Instance and the Court of Justice makes contested judgment on the one hand and in clear that the question whether there has paragraphs 106, 109 and 114 on the other, been a breach of the rights of the defence the third plea in law put forward by the must be assessed in the light of the specific Parliament must also be rejected. circumstances of each case and that the answer depends essentially on the evidence which the institution concerned takes as the basis for its decision. According to settled case-law, 'observance of the right to be heard requires that any person on whom a penalty may be imposed must be placed in a C — Failure to have regard to the case-law position in which he can effectively make on the rights of the defence known his view of the matters on the basis of which the Commission imposes the penalty'. 11 However, in the contested judgment the Court of First Instance 39. The Parliament points out that the assumes that there is an obligation to hear grounds of the judgment of the Court of the person concerned solely on the basis of First Instance in Gaspari v Parliament 7 the fact that the intended decision adversely bear great resemblance to those of the affects him, without examining the evidence judgments in Quijano v Commission8 and which the appointing authority took as the F v Commission, 9 on which the Court basis for its decision. partly bases its view in the contested judgment concerning observance of the rights of the defence. In the two first- mentioned cases, the Court of First Instance held that an official must be given the 41. In the present case the central question opportunity to make known his views with is whether the appointing authority was regard to the report of a medical officer required to hear Mr Reynolds' view of the before a decision adversely affecting him is evidence on which the decision was based, adopted. However, the judgment in Gas- namely, the disappearance of the mutual pari was set aside by the Court of Justice to confidence between the EDD Group and the extent that the contested decision had Mr Reynolds. If that was the case, the been annulled by that judgment on the Parliament argues that it had to adopt a grounds of breach of the obligation to state position on the purely subjective decision of reasons and breach of the rights of the the EDD 12 Group. According to settled case- defence. 10 In the Parliament's view, in so law, however, the appointing authority is doing the Court of First Instance failed to in no circumstances entitled to substitute its have regard to the case-law of the Court of own opinion for that of a political grouping Justice. such as the EDD Group and was therefore not obliged to hear Mr Reynolds on the matter.

42. The Parliament further takes the view a margin of discretion — limited, admit- that it follows from the case-law that, in the tedly, but not non-existent — is in principle absence of any express provision in the sufficient as a basis for considering that it Staff Regulations for an inter partes proce- cannot be entirely precluded that a pre- dure in which any official must be heard by liminary consultation could have had a the appointing authority before a measure particular impact on the content of the concerning him is adopted, in principle no contested decision. However, the Court of such o b l i g a t i o n e x i s t s for the First Instance did not examine, as is administration. The complaint procedure required by settled case-law, the evidence provided for in Article 90 of the Staff which it had available to it in order to Regulations must be deemed to afford consider whether such a consultation of Mr sufficient protection for the official's lawful Reynolds would actually have had a interests. In paragraph 94 of the contested particular, and not merely a hypothetical, judgment, however, the Court of First impact in the specific circumstances of the Instance considers that the fact that Article case. The Parliament is of the opinion that, 90 of the Staff Regulations provides for a in view of the tensions surrounding the preliminary complaint procedure does not secondment of Mr Reynolds, the failure of as such suffice to preclude the existence of the EDD Group's attempts to reach an an obligation for the appointing authority amicable settlement and Mr Reynolds' to hear the official concerned before adopt- reaction to that in his memorandum of ing a decision adversely affecting 1 July 2000, it is obvious that a preliminary him. Although the Court of First Instance consultation could not have had a particu- recognises that it is true that that procedure lar impact on the contested decision. allows the official concerned to rely on his interests before the administration, he is given that opportunity only after the con- tested decision has been adopted. The Court of First Instance goes on to state 44. In his response, Mr Reynolds observes that it is an absolute requirement of the that, even though the Court of Justice set principle of respect for the rights of the aside the judgment of the Court of First defence that the person concerned be heard Instance in Gaspari, that is irrelevant here before the decision adversely affecting him since the facts and the point of law in that is adopted. In the Parliament's view, that case were in no way comparable with those inflexible approach goes beyond what is in the present case. Thus, in contrast to the required by the existing case-law. It is present situation, there was no question of therefore of the opinion that the Court of lack of preliminary consultation of an First Instance failed to have regard to the official who was the addressee of a decision case-law concerning the legal significance of adversely affecting him. the pre-litigation procedure provided for in Article 90 of the Staff Regulations.

(which Mr Reynolds also brought to the Opinion, since those letters were drafted attention of the President of the Parliament after the contested judgment was delivered. in two letters of 23 January 2002 and 5 They can therefore have no relevance to the February 2002 respectively) and to errors in consideration of this appeal. Moreover, the citation or interpretation of the con- they could also be damaging to third parties tested judgment. Mr Reynolds also disputes who are not involved in this dispute and not the Parliament's assertion that the Court of in a position to defend themselves. First Instance did not cite any case-law to support its view that the person concerned must be consulted beforehand. He refers in this connection to paragraph 91 of the contested judgment. 49. In his rejoinder, Mr Reynolds explains that he produced the letters in the proceed- ings in order better to enable the Court of Justice to understand on what basis the 46. Mr Reynolds likewise disputes the Court of First Instance came to its conclu- Parliament's assertion that the Court of sion in its analysis of the context and First Instance concluded that in principle it origins of the dispute. could not be entirely precluded that a preliminary consultation could have had a particular impact on the content of the contested decision. It is clear from para- graph 114 of the contested judgment that the Court of First Instance assessed that Assessment of the fourth plea in law impact in concrete terms and not merely in principle. Mr Reynolds further disputes that there was an attempt on the part of the EDD Group to reach an amicable settlement, as claimed by the Parliament. 50. The fourth plea in law relates to failure by the Court of First Instance to have regard to the case-law on the rights of the defence in so far as it held that the appointing authority was obliged to hear 47. Finally, to substantiate his argument Mr Reynolds before deciding to terminate further, Mr Reynolds relies on the first his secondment. indent of Article 41(2) of the Charter of fundamental rights of the European Union, under which every person has the right to be heard before any individual measure which would affect him or her adversely is taken. 51. The Parliament points out, first, that the Court of First Instance based that part of the contested judgment on its judgments in Quijano v Commission and F v Commis- sion 13 without taking into account the fact 48. In its reply, the Parliament requests the removal from the file of the two letters from Mr Reynolds to the President of the Parliament, mentioned in point 45 of this 13 — Cited above in footnotes 8 and 9 respectively.

that the Court of Justice, in its judgment in 53. The Parliament's next objection is that Gaspari, 1 4set aside the judgment of the the Court of First Instance based its view Court of First Instance in that case 15 in concerning disregard by the appointing which a line of reasoning comparable to authority of the rights of the defence solely that used in the two first-mentioned judg- on the fact that the decision to terminate ments of the Court of First Instance had Mr Reynolds' secondment must be been followed. regarded as a decision adversely affecting him, without investigating further the fac- tors which the appointing authority took into account as the basis for its decision.

suspension. Those situations cannot be appointing authority followed as a conse- compared with the situation of an official quence of the decision of the EDD Group to whose secondment to a political group in terminate Mr Reynolds' secondment to that the Parliament is terminated and who group. The appointing authority could only wishes to be heard before the consequent take note of that decision. As the Court of measures to be taken by the appointing First Instance also held in paragraph 80 of authority are adopted. Moreover, the Court the contested judgment, that decision was a of First Instance cited its own case-law decisive factor for the exercise of the purely in order to substantiate the principle appointing authority's competence in this that respect for the rights of the defence in case, even though, as has already been any procedure against a person which could discussed, in the light of its own responsi- lead to a decision adversely affecting him is bility towards Mr Reynolds the appointing to be regarded as a fundamental principle authority was certainly obliged, for the of Community law, which must be purpose of forming its own opinion, to observed even in the absence of any express ascertain that the request by the chairman provision to that effect in the rules govern- of the EDD Group did actually reflect the ing the procedure in question. It follows intention of that group. that it cannot be maintained that the case- law of the Court of Justice was disregarded merely because a judgment in a comparable case was set aside for reasons which were

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17 — Case C-294/95 P Ojha [1996] ECR I-5863, paragraphs 41 18 — Case T-50/92 Fiorani v Parliament [1993] ECR II-555, to 43. paragraph 36.

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68. I have already drawn attention in point 22 — Schertzer, paragraph 45, and Speybrouck, paragraph 94, 56 of this Opinion to the exceptional nature both cited above in footnote 4.

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that is a consequence which should have Assessment been foreseeable by him and it would appear artificial to characterise the con- tested decision otherwise solely on the basis of that fact. Moreover, as the Parliament correctly argues, that could also lead to differential treatment of seconded officials, 73. As a consequence of the fact that the depending on whether their grade during appointing authority did not act unlawfully secondment was the same as their original by adopting the contested decision without grade or not. hearing Mr Reynolds, there is no basis for the finding in the contested judgment that the Parliament is liable for the pecuniary and non-pecuniary harm sustained by him.

71. In the light of the foregoing, I am therefore of the opinion that the Parlia- 74. The contested judgment must therefore ment's plea in law alleging insufficient and be set aside in so far as the Parliament is contradictory grounds in paragraph 96 of ordered, in paragraphs 2 and 4 of the the contested judgment with regard to the operative part, to pay damages for the significance of the effects of reinstatement pecuniary and non-pecuniary harm sus- on the material situation of the seconded tained by Mr Reynolds. official is well founded. The contested judgment should therefore be set aside in that respect also.

VI — Cross-appeal — grounds

the criteria used to determine the amount of 77. The Parliament points out that under the compensation are set out sufficiently Article 69(2) of the Rules of Procedure the clearly. However, those criteria are not unsuccessful party is to be ordered to pay clear from the contested judgment, which the costs if they have been applied for in the in paragraph 154 merely states that it was successful party's pleadings. As regards 'inevitable that the adoption of the con- Article 122 of the Rules of Procedure, tested decision aggravated the non-pecuni- which provides that, by way of derogation ary harm which the applicant was already from Article 69(2), the Court may, in suffering' and '[t]he fact of being reinstated appeals brought by officials or other in his former post, with retroactive effect servants of an institution, order the parties and without even having been given a to share the costs where equity so requires, preliminary hearing by the appointing the Parliament claims that the Court should authority, cannot have failed to affect the find that there is no reason to apply that applicant's dignity and self-respect'. Mr provision in this case. According to the Reynolds therefore claims that the Court Parliament, the case-law cited by Mr should, firstly, set aside the judgment of the Reynolds himself in support of his cross- Court of First Instance in so far as it failed appeal shows that the pleas in law put to award him- at first instance sufficient forward by him are clearly unfounded. For compensation for the non-pecuniary harm that reason, the Parliament submits that Mr sustained by him and, secondly, on the Reynolds should be ordered to pay the costs basis of the application brought by him at of the cross-appeal. 24 first instance, determine fair compensation for that harm.

80. In points 64 and 71 above, I concluded that the fourth and fifth pleas in law put forward by the Parliament are well founded. I further concluded, in point 73, that the Court of First Instance was wrong 82. With regard to the cross-appeal to hold that the appointing authority acted brought by Mr Reynolds, the Parliament unlawfully in not hearing Mr Reynolds has drawn attention to the possibility under before adopting the decision to terminate Article 122 of the Rules of Procedure, in the his secondment to the EDD Group and that case of an appeal brought by a member of he was therefore entitled to compensation. staff of an institution, by way of derogation The contested judgment must be set aside from Article 69(2) of the Rules of Proce- for those reasons. It follows that the cross- dure, of ordering the parties to share the appeal brought by Mr Reynolds — which costs where equity so requires. However, seeks to have the assessment by the Court the Parliament has claimed that the Court of First Instance of his claim for compensa- should refrain from applying that provision tion for the non-pecuniary harm sustained and order Mr Reynolds to pay the costs of by him set aside — must be dismissed since his cross-appeal in their entirety since the it has become devoid of purpose. pleas in law put forward by him were manifestly unfounded. Since I have con- cluded that, as a consequence of the well- founded nature of the appeal brought by the Parliament, the cross-appeal brought by Mr Reynolds has become devoid of purpose and there is no need to examine its merits, I see no reason to derogate from the basic VII— Costs rule that an institution should in principle bear its own costs incurred by it in a dispute with a member of its staff. The parties must 81. Under Article 122 in conjunction with therefore also bear their own costs in Article 70 of the Rules of Procedure, the connection with the cross-appeal.

— in so far as the Court of First Instance ordered the Parliament to pay compensation for the pecuniary and non-pecuniary harm sustained by Mr Reynolds;

(b) declare that Mr Reynolds is not entitled to compensation for the pecuniary and non-pecuniary harm sustained by him;

(c) dismiss the cross-appeal brought by Mr Reynolds;

(d) declare that each of the parties must bear its own costs with regard both to the appeal and to the cross-appeal.

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