31 March 2020 (* )

(Action for annulment — Civil service — Officials — Sick leave — Negative opinion by the medical service — Amendments made in the Human Resource Management information system — Acts not amenable to review — Acts not adversely affecting an official — Failure to follow the pre-litigation procedure — Premature challenge — Inadmissibility)

In Case T‑499/19,

ZU,

represented by C. Bernard-Glanz, lawyer,

applicant,

European External Action Service (EEAS),

represented by R. Spac and S. Marquardt, acting as Agents,

defendant,

APPLICATION based on Article 270 TFEU seeking annulment of the alleged decisions of the EEAS of 31 August 2018 and 10 January 2019, of the European Commission note of 30 August 2018 providing for a reduction of the applicant’s sick leave and, so far as necessary, of the Commission’s decision of 1 April 2019 rejecting his complaint of 30 November 2018 against that note and against any subsequent decision to deduct his absence from 28 to 31 August 2018 from his annual leave,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, I. Reine and L. Truchot (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

The applicant, ZU, is an official of the European Union who, at the time of the events giving rise to the present dispute, was assigned to the European External Action Service (EEAS) within the EU Delegation to Russia (‘the Delegation’), having its seat in Moscow (Russia).

On 5 August 2018, during a private trip to Poland, the applicant consulted a doctor who issued him with a sick leave certificate (‘the certificate of 5 August 2018’) for the period from 6 to 31 August 2018. The applicant forwarded the certificate of 5 August 2018 to the Commission Medical Service by email of 7 August 2018.

On 21 August 2018, when the applicant was on sick leave, the Commission Medical Service asked the applicant to attend a medical examination in Brussels (Belgium). By email of 24 August 2018, the applicant confirmed his availability to attend the medical examination in Brussels on 28 August. He did, however, state that the obligation to attend that medical examination would prevent him from using the flight tickets he had booked in order to attend a previously planned private medical appointment in Poland. He therefore asked the administration to take steps to allow him to reconcile his two medical appointments. By email of the same day, he informed the administration of an itinerary, alternative to a direct return journey from Moscow to Brussels, which included a stop-over in Warsaw (Poland) on the return leg. That alternative itinerary would allow him to be in Brussels on the date desired by the Commission Medical Service and to postpone his other medical appointment by only a few days.

On 27 August 2018, after several email exchanges, the Delegation informed the applicant that the mission order that had been prepared for his trip to Brussels provided for a return flight from Moscow to Brussels for the 28 and 29 August 2018, and invited him to sign that mission order. After the applicant again highlighted that there was an alternative itinerary that would allow him to reconcile his two medical appointments, the Delegation replied that such a change would entail additional costs that it did not intend to cover. Having stated that that alternative itinerary could be achieved at a lower price than that proposed by the Delegation and after receiving from the Delegation a message reminding him of his obligation to attend the medical examination in Brussels irrespective of his personal plans in Poland or elsewhere, the applicant amended the mission order in order to insert the alternative itinerary and signed that mission order.

On 30 August 2018, following the applicant’s failure to attend the medical examination on 28 August 2018, the Commission’s medical officer drafted a note (‘the note of 30 August 2018’), the contents of which are as follows:

‘…

Upon the request of the administration, [ZU] was summoned to the medical service on 28 [August] 2018. Since he did not attend, without justification, his absence is to be considered unjustified as from 28 [August] 2018.

[Signature]

It is for the [Appointing Authority] to take the decision as to the nature of the leave.

…’

By two emails sent to the medical officer on 30 August 2018, the applicant contested that note of the same date.

On 31 August 2018, amendments relating to the applicant’s leave (‘the amendments of 31 August 2018’) were made in the Human Resource Management information system, Sysper. According to the applicant, it appears from those amendments that the period of unjustified absence attributed to him amounts to eleven days.

By email of 6 September 2018, the medical officer informed the applicant that his absence had to be considered unjustified on the ground that she had not been able to examine him. She specified that the role of the medical officer was to give an opinion, while it was for the Appointing Authority to take a decision as to the nature of the leave.

By email of 12 November 2018 (‘the email of 12 November 2018’), the applicant told the Delegation that he could not submit his timesheets to Sysper, on account of the issue, which remained unresolved, as to the classification of his absence during the last week of August 2018. He asked for that issue to be resolved as soon as possible.

On 30 November 2018, the applicant lodged a complaint (‘the complaint of 30 November 2018’) on the basis of Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), against the note of 30 August 2018 and against any subsequent decision to deduct his absence from 28 to 31 August 2018 from his annual leave.

On 1 December 2018, the applicant was reassigned to the European Anti-fraud Office (OLAF).

On 10 January 2019, amendments relating to the applicant’s leave (‘the amendments of 10 January 2019’) were made in Sysper, stating that the certificate of 5 August 2018 justified his absence from 6 August until 27 August 2018. According to the applicant, it is as a result of those amendments that the duration of his leave was reduced.

By decision of 1 April 2019 (‘the decision rejecting the complaint’), the Director-General of OLAF, in his capacity as Appointing Authority, rejected the complaint of 30 November 2018. To that end, he stated, first, that the note of 30 August 2018 was not an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations and, second, that as at that date the Appointing Authority had not taken a definitive decision as to whether the applicant’s absence from 28 to 31 August 2018 should be categorised as sick leave or annual leave.

Procedure and forms of order sought

By application lodged at the Court Registry on 10 July 2019, the applicant brought the present action.

In his observations on the Court’s proposal to join Cases T‑671/18, ZU v Commission, and T‑140/19, ZU v Commission, submitted to the Court Registry on 18 July 2019, the applicant asked that those cases, the present case and Case T‑154/19, ZU v EEAS be joined. In its observations on that request, lodged at the Court Registry on 30 August 2019, the EEAS contended that the Court should refuse the request.

By separate document lodged at the Court Registry on 31 July 2019, the applicant requested anonymity under Article 66 of the Rules of Procedure of the General Court. By decision of 6 September 2019, the General Court (Third Chamber) granted that request.

Following a change in the composition of the General Court, by decision of 18 October 2019, the President of the General Court, pursuant to Article 27(3) of the Rules of Procedure, reallocated the case to a new Judge-Rapporteur, assigned to the Seventh Chamber.

By decision of 23 October 2019, the President of the Seventh Chamber of the Court refused the application for a joinder of proceedings referred to in paragraph 15 above.

By separate document lodged at the Court Registry on 4 November 2019, the EEAS raised a plea of inadmissibility under Article 130 of the Rules of Procedure. The applicant lodged his observations on that plea on 18 December 2019.

The applicant claims that the Court should:

–declare the application admissible;

–annul the note of 30 August 2018, the decision of 31 August 2018 and the decision of 10 January 2019;

–annul, so far as necessary, the decision rejecting the complaint;

–order the EEAS to pay the costs.

The EEAS contends that the Court should:

–dismiss the application as inadmissible;

–order the applicant to pay the costs.

Law

Pursuant to Article 130 of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of inadmissibility without going to the substance of the case. In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.

In its plea of inadmissibility, the EEAS raises the following five objections of inadmissibility:

–the acts identified in the application do not constitute final administrative decisions affecting the applicant’s legal position;

–the application, in so far as directed against the decision rejecting the complaint, is directed against the wrong defendant;

–the applicant did not observe the necessary pre-litigation phase;

–the complaint of 30 November 2018 was not directed against the acts covered by the application;

–the application does not meet the formal requirements arising under Article 76(d) of the Rules of Procedure.

It is necessary to examine the objections of inadmissibility alleging the absence of acts adversely affecting the official and a failure to observe the necessary pre-litigation phase provided for in Article 91(2) of the Staff Regulations, since they are prerequisites.

The claims for annulment of the note of 30 August 2018 and the decisions of 31 August 2018 and of 10 January 2019

In the first place, the EEAS claims that the note of 30 August 2018 does not constitute, in itself, an act adversely affecting the applicant.

In the second place, the EEAS claims that the amendments of 31 August 2018 and of 10 January 2019 are merely extracts from Sysper showing the amendments made by the ‘leave manager’, who is an official in the assistants function group. Those amendments are merely annotations of a technical nature, which cannot be considered administrative decisions of the Appointing Authority. Those annotations do not change the applicant’s legal position.

In the third place, the EEAS states that the amendments of 31 August 2018 and of 10 January 2019 were not the subject of a complaint, since the complaint of 30 November 2018 was directed against the note of 30 August 2018 and against any subsequent decision to deduct the applicant’s absence from 28 to 31 August 2018 from his annual leave.

The applicant submits, first, that the EEAS’s view that neither the note of 30 August 2018 nor the amendments of 31 August 2018 and 10 January 2019 constitute acts open to review leads to a situation where he cannot bring an admissible action even though those acts have reduced his annual leave.

Next, he claims that the amendments of 31 August 2018, which implemented the note of 30 August 2018, are not merely a technical and provisional annotation inserted in Sysper by an official with no decision-making power, but rather express a decision which produces legal effects. Indeed, first, that decision is the reason the Investigation and Disciplinary Office of the Commission (IDOC) opened an investigation regarding his absence from 28 to 31 August 2018 and, second, that decision prevented him from being able to submit his timesheets to Sysper.

Lastly, the applicant states that the complaint of 30 November 2018 and the present application, while being very slightly different in their formulations, are directed against the same acts.

In the first place, it should be borne in mind that an administrative complaint and the subsequent application must both be directed against an act adversely affecting the applicant within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations. An act adversely affecting an official is one which produces legal effects which are binding on, and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position (see order of 13 September 2013, Conticchio v Commission, T‑358/12 P, EU:T:2013:525, paragraph 21 and the case-law cited). In order to be considered to be an act adversely affecting the applicant, a measure must be taken by the competent authority and must contain a definitive position adopted by the administration as regards the applicant (see judgment of 9 April 2019, Aldridge and Others v Commission, T‑319/17, not published, EU:T:2019:231, paragraph 42 and the case-law cited).

In the second place, it is for the Court, irrespective of the views expressed by the parties, to ascertain whether the contested act is an act adversely affecting the official, which is therefore the starting point for the pre-litigation stage provided for by Article 90(2) of the Staff Regulations (see, to that effect, order of 15 December 1998, Compte v Parliament, T25/98, EU:T:1998:300, paragraph 38 and the case-law cited).

In the third place, when an act is adopted by a procedure involving several stages, and particularly where it is the culmination of an internal procedure, it is, in principle, only a measure which definitively determines the position of the institution upon the conclusion of that procedure that is open to challenge, and not intermediate measures the purpose of which are to prepare the final decision. Acts preparatory to a decision do not adversely affect officials and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure (see judgment of 16 March 2009, R v Commission, T‑156/08 P, EU:T:2009:69, paragraph 49 and the case-law cited).

In the present case, first, as regards the note of 30 August 2018, it must be noted that that note, as is apparent from its wording (see paragraph 5 above), consists of an opinion of a medical officer and therefore constitutes merely a preparatory act of the decision that the Appointing Authority must take on whether the applicant’s absence from 28 to 31 August 2018 should be categorised as sick leave or annual leave. Such a preparatory act cannot be the subject of an action, with the result that the application seeking its annulment must be dismissed as inadmissible (see, to that effect, order of 4 November 2008, Marcuccio v Commission, F‑18/07, EU:F:2008:134, paragraph 33, and judgment of 23 November 2010, Marcuccio v Commission, F‑65/09, EU:F:2010:149, paragraphs 44 and 45).

Second, as regards the amendments of 31 August, it must be noted that it is not apparent either from the extract from Sysper, which constitutes Annex A.1 of the application, or any other document from the file that, on 31 August 2018, the Appointing Authority had adopted a final decision as regards how to categorise the applicant’s absence during the last week of August 2018. Moreover, in the application, the applicant admits that, when he lodged his complaint of 30 November 2018, no decision to deduct the allegedly unauthorised absence from his annual leave had been taken.

In addition, as regards the fact, relied on by the applicant (see paragraph 29 above), that IDOC opened an investigation regarding that absence, it cannot be considered that the opening of such an investigation transformed those amendments, entered following a simple opinion such as the note of 30 August 2018, into an act which changed the applicant’s legal position. Rather, in the present case, the results from the IDOC investigation could actually allow the Appointing Authority to take a final decision on the classification of the applicant’s leave days. As regards the fact that the amendments of 31 August 2018 prevented the applicant from submitting his timesheets to Sysper, it should be noted that the applicant only claims that he finds himself in a situation which ‘de facto [prevents] him from complying with the time management (flexitime) rules, because otherwise he would have to sign a timesheet (statement), which prima facie did not reflect reality (the absences from 28 to 31 August would appear in the timesheet as “presence” or there would be missing data creating a negative balance of working time)’. Formulated in that way, those arguments do not demonstrate how the amendments of 31 August 2018 brought about a distinct change in his legal position.

It follows that the amendments of 31 August 2018 do not constitute an act adversely affecting the applicant within the meaning of the case-law referred to in paragraph 31 above. It follows from this that the present action is inadmissible in so far as it is directed against those amendments.

Third, as regards the amendments of 10 January 2019, it must be borne in mind that, as the Court has consistently held, any action challenging an act adversely affecting the applicant and originating from the appointing authority must, as a general rule, necessarily be preceded by a complaint which has been rejected by express or implied decision. By virtue of Article 91(2) of the Staff Regulations, an action brought before that preliminary procedure has been completed is premature and therefore inadmissible (see judgment of 18 December 2008, Belgium and Commission v Genette, T‑90/07 P and T‑99/07 P, EU:T:2008:605, paragraph 105 and the case-law cited).

In the present case, it is sufficient to state that the applicant did not lodge a complaint against the alleged decision resulting from the amendments of 10 January 2019, with the result that it is not necessary to establish whether it may be considered a negative response from the Appointing Authority to the request made in the email of 12 November 2018 (see paragraph 9 above) and whether it thus constitutes an act adversely affecting the applicant.

It follows that the amendments of 10 January 2019 were not subject to a properly conducted pre-litigation procedure.

Moreover, the applicant is wrong to consider that the inadmissibility of the action would deprive him of his right to effective judicial protection. Articles 90 and 91 of the Staff Regulations allow officials to submit a request to the administration, always to obtain a response, whether express or implied, and to contest that response by means of a complaint and, in the event that complaint is expressly or implicitly rejected, by judicial appeal. Yet, while, by email of 12 November 2018, the applicant submitted a request seeking a final decision on his absence during the last week of August 2018, he subsequently failed to comply with the procedure provided for in those articles.

In the light of the foregoing considerations, it is necessary to conclude that the present action is inadmissible in so far as it is directed against the note of 30 August 2018 and against the decisions which allegedly result from the amendments of 31 August 2018 and 10 January 2019.

The claim for annulment of the decision rejecting the complaint

The EEAS claims that the decision rejecting the complaint is not, by itself, a decision which is open to challenge. In addition, it states that, in any event, the complaint of 30 November 2018 was dismissed as inadmissible and did not concern the same acts as those challenged in the present case.

The applicant did not submit observations in that regard.

It should be borne in mind that, in accordance with the case-law, a claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Tribunal the act against which the complaint was submitted, where that claim, as such, lacks any independent content (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 56). However, where the scope of the decision to reject the complaint differs from that of the measure against which that complaint was made — inter alia where it changes the original decision or where it contains a re-examination of the applicant’s situation in the light of new elements of law or of fact which, had they arisen or become known by the competent authority before the adoption of the original decision, would have been taken into consideration — the General Court may be required to rule on the claims formally directed against the decision rejecting the complaint (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 36 and the case-law cited).

In the present case, in the decision rejecting the complaint, the Appointing Authority merely stated that the complaint was inadmissible. In essence, it found, first, that the note of 30 August 2018 was not an act adversely affecting the applicant and, second, that no final decision had been taken on whether the applicant’s absence from 28 to 31 August 2018 should be categorised as sick leave or annual leave.

In the first place, it must be held that the present action is not directed against any such subsequent decision and that, in any event, a future hypothetical act cannot be the subject of an admissible complaint or action (see, to that effect, order of 18 September 1996, Langdon v Commission, T‑22/96, EU:T:1996:121, paragraph 16, and judgment of 3 July 2014, Alchaar v Council, T‑203/12, not published, EU:T:2014:602, paragraph 72).

In the second place, given that the complaint of 30 November 2018, in so far as it was directed against the note of 30 August 2018, was rejected as inadmissible on the sole ground that it did not constitute an act adversely affecting the applicant, it cannot be considered that the Appointing Authority amended that note or re-examined the applicant’s situation. Therefore, in the absence of any other evidence indicating that the scope of the decision rejecting the complaint differs from that of that note, it must be found that the application for annulment of the decision rejecting the complaint lacks independent content.

In the light of all the foregoing considerations, the present action must be dismissed, in its entirety, as inadmissible, without it being necessary to examine the other objections of inadmissibility relied on by the EEAS in its plea of inadmissibility.

Costs

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs in accordance with the form of order sought by the EEAS.

On those grounds,

hereby orders:

1.The application is dismissed as inadmissible.

2.ZU shall pay the costs.

Luxembourg, 31 March 2020.

Registrar

President

Language of the case: English.