(Appeal – Officials – Secondment to a political group of the Parliament – Decision to terminate the secondment – Rights of the defence)

Summary of the Judgment

Officials – Secondment in the interests of the service – Secondment to a political group of the Parliament – Decision to terminate the secondment – Discretion of the political group and circumscribed power of the appointing authority – No overriding need to hear the party concerned before the decision adopted

(Staff Regulations, Art. 37, point (a), first para., second indent, and Art. 90)

Under the second indent of the first paragraph (a) of Article 37, an official may, in the interests of the service, be seconded temporarily to a post in one of the political groups in the Parliament. Although it is for the appointing authority to take the decision to second an official to a political group and to terminate that secondment, it is bound to respect the decision made by the political group which requests such a measure. The political group concerned has discretion to choose the staff it wishes to engage to serve temporarily in posts in that group as well as to terminate the latter’s engagement. That discretion is justified, in particular, by the specific nature of the functions carried out by a political group and by the need to maintain, in such a political environment, relations of mutual confidence between the officials on secondment and the group. By agreeing to carry out such temporary functions in a political group, the officials concerned must be aware of the fact that the group may wish to terminate their engagement before the end of the period initially envisaged for the secondment.

Where there is no longer any mutual confidence, for whatever reason, the official in question is no longer in a position to carry out his functions. In such circumstances sound administration therefore requires that the institution concerned take, with respect to that official, as soon as possible, a decision to terminate the secondment. Such a decision constitutes, from a procedural point of view, an act adversely affecting the official who, therefore, has a personal interest in seeking its annulment. It cannot be concluded automatically, however, without regard to the nature of the procedure brought against the official that the appointing authority was under an obligation to give the official concerned a proper hearing before adopting such a decision.

Where the appointing authority receives a formal request from a political group of the Parliament for the secondment of an official to that group to be terminated, it is generally obliged to take the appropriate steps as soon as possible after checking that the request has come from the person or department competent to submit it.

(see paras 48-52, 56-57, 59-60)

JUDGMENT OF THE COURT (Fifth Chamber) 29 April 2004*

(Appeal – Officials – Secondment to a political group of the Parliament – Decision to terminate the secondment – Rights of the defence)

In Case C-111/02 P,

European Parliament, represented by H. von Hertzen and D. Moore, acting as Agents, with an address for service in Luxembourg,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 23 January 2002 in Case T-237/00 Reynolds v Parliament [2002] ECR II-163, seeking to have that judgment set aside,

the other party to the proceedings being:

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,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of: P. Jann, acting for the President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas, A. La Pergola and S. von Bahr (Rapporteur), Judges,

Advocate General: L.A. Geelhoed, Registrar: R. Grass,

having regard to the Report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 18 September 2003,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

or

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

In that regard, the Court of First Instance held, in paragraph 52 of the contested judgment, that in this case, the appointing authority was correct to take the view that it could make use of that power to terminate Mr Reynolds’ secondment to the EDD Group, since it had been formally requested by the President of that group to terminate his secondment as quickly as possible. Such a request could of itself give rise to the conclusion that the secondment was no longer in the interests of the service. That conclusion was all the more necessary because the appointing authority was already aware, even before receiving the formal request of the President of the group, of the tension associated with Mr Reynolds’ secondment.

24Consequently, in paragraph 53 of the contested judgment, the Court of First Instance rejected the first plea as unfounded.

25The Court of First Instance then examined the plea alleging infringement of the principle of respect for the rights of the defence.

26In paragraph 77 of the contested judgment, the Court of First Instance held that it was necessary first to ascertain to what extent the case-law to the effect that an official has no legitimate interest in the annulment on the ground of a procedural defect of a decision where the administration has no discretion and is required to act as it did was applicable in this case.

27In that regard, the Court of First Instance held, in paragraph 80 of the contested judgment, that as a general principle, the fact that a request that the appointing authority uses its power to terminate the secondment before the end of the duration initially envisaged has been made by the service to which or the person to whom the official has been seconded constitutes a decisive factor for the exercise by the appointing authority of the power.

28In paragraph 81 of the contested judgment, the Court of First Instance held that the decisive nature of the request that the secondment of an official be terminated in the interests of the service does not mean that the appointing authority has no discretion in the matter and is required to comply with the request. The Court observed that when it receives such a request, the appointing authority is required at the very least to ascertain, neutrally and objectively, whether the request is beyond all doubt the valid expression of the service to which or the person to whom the official was seconded and also that it is not based on manifestly illegal grounds.

29In the light of the foregoing considerations, the Court of First Instance held, in paragraph 83 of the contested judgment, that the established judicial principle that the applicant has no legitimate interest in seeking annulment on the ground of a procedural defect where the administration has no discretion and is required to act as it does does not apply in this case.

30In paragraph 84 of the contested judgment, the Court of First Instance stated that it was in the light of that finding that the other arguments put forward by the parties in the context of the plea alleging an infringement of the principle of respect for the rights of the defence should be examined.

31The Court of First Instance recalled, in paragraph 86 of the contested judgment, that it has consistently been held that respect for the rights of the defence in any procedure initiated against a person which may culminate in an act adversely affecting him is a fundamental principle of Community law and must be observed even in the absence of an express provision to that effect in the rules governing the procedure in question (see, to that effect, Case T-169/95 Quijano v Commission [1997] ECR-SC I-A-91 and II-273, paragraph 44, and Case T-211/98 F v Commission [2000] ECR-SC I-A-107 and II-471, paragraph 28).

32The Court of First Instance observed, in paragraph 87 of the contested judgment that, as stated in paragraph 42 thereof, the decision at issue constitutes an act adversely affecting the applicant. Accordingly, it held that the appointing authority was under an obligation to give Mr Reynolds a proper hearing before adopting that decision.

33Moreover, the Court of First Instance held, in paragraph 94 of the contested judgment, that the fact that a preliminary complaint procedure is provided for in Article 90 of the Staff Regulations does not as such suffice to preclude the existence of an obligation on the appointing authority to hear the official concerned before adopting a decision adversely affecting him.

34The Court of First Instance went on to point out, in paragraph 98 of the contested judgment, that the principle of parallelism of forms requires that the obligation for the appointing authority to hear the official before deciding to second him in the interests of the service, provided for in Article 38(a) of the Staff Regulations, also applies when the appointing authority decides to determine or to amend the duration of secondment in the interests of the service on the basis of Article 38(b).

35The Court of First Instance held, in paragraph 109 of the contested judgment, that the appointing authority had not satisfied the obligation to give the applicant a proper hearing before adopting the decision at issue.

36The Court of First Instance pointed out, in paragraph 112 of the contested judgment, that the principle of respect for the rights of the defence is infringed where it is established that the person concerned was not given a proper hearing before the act adversely affecting him was adopted and where it cannot be reasonably precluded that that irregularity could have had a particular impact on the content of that act.

37In paragraph 113 of the contested judgment, the Court of First Instance observed that the possibility that a preliminary consultation might have a particular impact on the content of an act adversely affecting the person concerned could not be reasonably precluded unless it was established that the person adopting the act had no discretion and was required to act as he did.

38The Court of First Instance held, in paragraph 114 of the contested judgment, referring to paragraph 81, that it was clear that in this case the appointing authority had a margin of discretion, limited, admittedly, but not non-existent, as regards the exercise of the power to terminate the applicant’s secondment before expiry of the period initially envisaged. According to the Court, it could not therefore be entirely precluded that in this case a preliminary consultation of Mr Reynolds could have had a particular impact on the content of the decision at issue.

39The Court of First Instance added, in paragraph 115 of the contested judgment, that it was not for the Court to take the place of the administrative authority and ascertain whether there were in this case any factors capable of having a particular impact on the content of the decision at issue.

40In the light of the foregoing, the Court of First Instance held, in paragraph 117 of the contested judgment, that the plea alleging infringement of the principle of respect for the rights of the defence was well founded and, accordingly, that the decision at issue had to be annulled without there being any need to consider the other pleas in law put forward by Mr Reynolds.

41As far as concerns the claim for compensation, the Parliament was ordered, in paragraphs 149 and 150 of the contested judgment, to pay to Mr Reynolds a sum representing the difference between the remuneration which he should have received as an official on secondment to Grade A 2, Step 1, and that which he received after being reinstated in Grade LA 5, Step 3, for the period between 15 July 2000 and 30 November 2000, that sum being increased by default interest at a rate of 5.25% per annum from the date on which the amounts constituting that sum became payable until such date as payment was actually made.

42As regards the claim for non-pecuniary harm, the Court of First Instance held, in paragraph 153 of the contested judgment that, because Mr Reynolds did not observe the prescribed pre-litigation procedure, his claim for compensation for the non-pecuniary harm which he suffered as a result of the ‘conduct not entailing a decision’ of the EDD Group or of certain of its members was inadmissible. However, the Court observed, in paragraph 154 of the contested judgment, the adoption of the decision at issue aggravated the non-pecuniary harm which Mr Reynolds was already suffering. In order to make good that harm, the Court of First Instance held that the Parliament be ordered to pay him the nominal amount of EUR 1.

The appeal

43In its appeal the Parliament asks the Court of Justice to set aside the contested judgment and to give final judgment in the case, dismissing the action as unfounded, or to refer the case back to the Court of First Instance for a fresh decision. It also claims that the cross appeal brought by Mr Reynolds should be dismissed as clearly unfounded.

44In support of its appeal, the Parliament puts forward four pleas alleging infringement of Community law by the Court of First Instance, in particular with regard to the obligation to state the grounds of judgments and to the principle of respect for the rights of the defence.

45Mr Reynolds contends that the Parliament’s appeal should be dismissed. He asks the Court, by way of cross appeal, to set aside paragraph 4 of the operative part of the contested judgment and to give final judgment in the case by upholding his claim for compensation, as far as concerns reparation for the non-pecuniary harm that he suffered, or to refer the case back to the Court of First Instance for a fresh decision on that head of his claim for compensation.

The merits of the appeal

46By its third ground of appeal, which is appropriate to examine first, the Parliament claims that the Court of First Instance’s determination, that any official must be heard before a measure likely to adversely affect him is adopted, is contrary to the settled case-law of the Community courts relating to rights of the defence.

47Mr Reynolds disputes that the Court of First Instance misconstrued that case-law.

48As a preliminary point, it must be recalled that, under the second indent of the first paragraph (a) of Article 37, an official may, in the interests of the service, be seconded temporarily to a post in one of the political groups in the Parliament.

49It must be made clear that although it is for the appointing authority to take the decision to second an official to a political group and to terminate that secondment, it is bound to respect the decision made by the political group which requests such a measure.

50The political group concerned has discretion to choose the staff it wishes to engage to serve temporarily in posts in that group as well as to terminate the latter’s engagement.

51That discretion is justified, in particular, by the specific nature of the functions carried out by a political group and by the need to maintain, in such a political environment, relations of mutual confidence between the officials on secondment and the group.

52By agreeing to carry out such temporary functions in a political group, the officials concerned must be aware of the fact that the group may wish to terminate their engagement before the end of the period initially envisaged for the secondment.

53As regards an official like Mr Reynolds, who was seconded in order to act as Secretary-General in a political group of the Parliament, it is not disputed that he was engaged for a particular purpose of an essentially political nature (see Case 25/68 Schertzer v Parliament [1977] ECR 1729, paragraph 42).

54In order for him to be in a position to carry out that task, it is essential that the relationship of mutual confidence between him and the political group on his appointment be maintained throughout the period of the secondment.

55Where the political group concerned takes the view that the relationship of mutual confidence no longer exists, it may unilaterally terminate the seconded official’s engagement before the expiry of the period initially envisaged for the secondment.

56Where there is no longer any mutual confidence, for whatever reason, the official in question is no longer in a position to carry out his functions. In such circumstances sound administration therefore requires that the institution concerned take, with respect to that official, as soon as possible, a decision to terminate the secondment (see, by analogy, Case 124/78 List v Commission [1979] ECR 2499, paragraph 13, and Case C-294/95 P Ojha v Commission [1996] ECR I-5863, paragraphs 41 and 42).

Admittedly, as the Court of First Instance rightly held, in paragraph 42 of the contested judgment, where it ruled on the plea of inadmissibility, such a decision constitutes, from a procedural point of view, an act adversely affecting the official who, therefore, has a personal interest in seeking its annulment. It cannot be concluded automatically, however, without regard to the nature of the procedure brought against the official that, as the Court of First Instance wrongly held in paragraph 87 of that judgment, the appointing authority was consequently under an obligation to give Mr Reynolds a proper hearing before adopting the decision at issue.

58As has already been stated in paragraphs 50 to 52 of the present judgment, an official who accepts a post of a very particular character, such as Secretary-General in a political group of the Parliament, must be aware that the group has discretion to terminate his engagement at any time, in particular where the relationship of mutual confidence between the group and the official no longer exists.

59It follows that, where the appointing authority receives a formal request from a political group of the Parliament for the secondment of an official to that group to be terminated, it is generally obliged to take the appropriate steps as soon as possible after checking that the request has come from the person or department competent to submit it.

60In view of the foregoing considerations, it must be held that the adoption of the decision at issue by the appointing authority without previously giving Mr Reynolds a hearing appears to be justified.

61In those circumstances, it must be held that the Court of First Instance wrongly held, in paragraphs 99, 109 and 117 of the contested judgment, that the plea alleging an infringement of the principle of respect for the rights of the defence was founded in so far as the appointing authority had not given Mr Reynolds a proper hearing before adopting the decision at issue.

62Without its being necessary to examine the other grounds of appeal relied on by the Parliament, the contested judgment must be set aside in so far as it annuls the decision at issue. Consequently, that judgment must also be set aside in so far as it orders the Parliament to make good the pecuniary and non-pecuniary harm allegedly suffered by Mr Reynolds as a result of that decision.

63In those circumstances, Mr Reynolds’ cross appeal, which concerns the assessment of the amount of non-pecuniary harm that he suffered as a result of the decision has become devoid of purpose and there is therefore no need to examine it.

Referral of the case back to the Court of First Instance

64Under the first paragraph of Article 61 of the Statute of the Court of Justice, the latter may, where a decision of the Court of First Instance has been quashed, give final judgment in the matter itself, where the state of proceedings so permits, or refer the case back to the Court of First Instance for judgment.

65Given that the Court of First Instance examined only two of the seven pleas put forward by Mr Reynolds in support of his action, the Court considers that it is not in a position to give judgment and that the case must be referred back to the Court of First Instance for it to give judgment on the other pleas in the action.

On those grounds,

THE COURT (Fifth Chamber) hereby:

1.Sets aside paragraphs 1, 2, 4 and 5 of the operative part of the judgment of the Court of First Instance of the European Communities of 23 January 2002 in Case T-237/00 Reynolds v Parliament;

2.Refers the case back to the Court of First Instance;

3.Reserves the costs.

Delivered in open court in Luxembourg on 29 April 2004.

Registrar

President

ECLI:EU:C:2025:140

Language of the case: French.