van de Water v Parliament (Judgment) [2014] EUECJ F-86/13 (15 October 2014)

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(Civil service - Rights and obligations of officials - Declaration of intention to engage in an occupational activity after leaving the service - Article 16 of the Staff Regulations - Compatibility with the legitimate interests of the institution - Prohibition)

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Robert van de Water, a former member of the temporary staff of the European Parliament, residing in Grimbergen (Belgium), represented by P. Bentley QC, barrister, and R. Bäuerle, lawyer,

European Parliament, represented by N. Chemaï and M. Dean, acting as Agents,

composed of E. Perillo, acting President, M.I. Rofes i Pujol and R. Barents (Rapporteur), Judges,

having regard to the written procedure and further to the hearing on 8 April 2014,

1 By application received at the Civil Service Tribunal Registry on 13 September 2013, Mr Van de Water, retired member of the temporary staff of the European Parliament, seeks, in essence, annulment of the Parliament’s decision of 3 January 2013, prohibiting him from taking up an appointment as adviser to the Ukrainian Prime Minister for two years after leaving the service.

2 The legal background consists of Article 16 of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), and Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time-limits (OJ, English Special Edition, 1971(II), p. 354).

‘For the purposes of this regulation, “working days” means all days other than public holidays, Sundays and Saturdays.’

‘Where a period expressed in hours is to be calculated from the moment at which an event occurs or an action takes place, the hour during which that event occurs or that action takes place shall not be considered as falling within the period in question.

Where a period expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be counted as falling within the period in question.’

(c) a period expressed in weeks, months or years shall start at the beginning of the first hour of the first day of the period, and shall end with the expiry of the last hour of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day from which the period runs. If, in a period expressed in months or in years, the day on which it should expire does not occur in the last month, the period shall end with the expiry of the last hour of the last day of that month;

6 The applicant, a former member of the temporary staff in grade AD 14, worked for 35 years for the political group of the Progressive Alliance of Socialists and Democrats in the European Parliament (‘the Socialists and Democrats Group’). He retired with effect from 1 October 2012.

7 On 5 November 2012, the applicant delivered to the Secretary-General of the Socialists and Democrats Group in person the form of declaration of intention to engage in an occupational activity after leaving the service (‘declaration of intended activity’) dated 3 November 2012, informing the latter of his intention to work on a voluntary basis, for an expected duration of four years, as adviser to Mr Azarov, the Ukrainian Prime Minister.

8 By letter of 8 November 2012, the Socialists and Democrats Group informed the Staff Management and Careers Unit of the Secretariat-General’s Directorate-General for Personnel (‘the Staff Management Unit’) that the applicant had submitted the declaration of intended activity and that the Socialists and Democrats Group had no objection to his exercising the proposed activity.

9 The Staff Management Unit acknowledged receipt of the declaration of intended activity by email on 20 November 2012 and, on the same day, requested further information regarding the applicant’s duties performed during the last three years of his employment.

10 On 23 November 2012, the Socialists and Democrats Group informed the Staff Management Unit of the nature of the work carried out by the applicant during those last three years.

11 By email of 30 November 2012, the Head of the Human Resources Unit of the Socialists and Democrats Group informed the applicant that his declaration of intended activity would be assessed by the Joint Committee of the Parliament.

12 By note of 7 December 2012, as the Directorate-General for Personnel took the view that the activity described in the declaration of intended activity was related to the activities that the applicant had performed during his last three years in the service of the Socialists and Democrats Group and placed him ‘in a situation of conflict of interests which is incompatible with the legitimate interests of the institution’, the Director of Human Resources Development, acting in his capacity as appointing authority, requested the opinion of the Joint Committee on the proposal to prohibit the applicant from engaging in the activity of advisor to the Ukrainian Prime Minister until 30 September 2014.

13 On 12 December 2012, the Joint Committee issued a unanimous opinion in support of the appointing authority’s proposal not to allow the applicant to engage in the occupational activity referred to in the declaration of intended activity.

14 On 7 January 2013, the applicant received notification of the decision of 3 January 2013 prohibiting him from engaging in the activity of political advisor to the Ukrainian Prime Minister for two years after leaving the service (‘the contested decision’). In that decision, the appointing authority noted that the applicant was proposing to advise the Ukrainian Prime Minister with regard to the adoption of policies to reform and modernise the country and to strengthen the strategy for Ukraine’s accession to the European Union. The appointing authority also noted that the declaration of intended activity indicated that, in the context of his activities at the Parliament, the applicant had represented the Socialists and Democrats Group before the Ukrainian authorities and that his staff reports showed that he had been in charge of tasks related to European Union enlargement, neighbourhood policies and foreign affairs, including accompanying, assisting and representing the President of the Parliament at delegations, meetings and special assignments, particularly in Central and Eastern Europe. According to the appointing authority, the proposed activity was directly related to the work carried out by the applicant during his last three years of service at the Socialists and Democrats Group. The appointing authority concluded that the proposed activity would run counter to the official position of the Parliament on the political situation in Ukraine and that the intended activity proposed by the applicant was therefore incompatible with the legitimate interests of the institution.

15 On 27 February 2013, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations against the contested decision. In that complaint, the applicant claimed that the contested decision was communicated to him after expiry of the period of 30 working days prescribed by Article 16 of the Staff Regulations. In the alternative, he claimed that the appointing authority had made a manifest error of assessment

16 By letter of 24 June 2013, notified to the applicant on 27 June 2013, the Secretary-General of the Parliament rejected the applicant’s complaint (‘the decision rejecting the complaint’).

19 According to settled case-law, claims for annulment formally directed against the decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (judgment in Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8). Since the decision rejecting the complaint lacks any independent content in the present case, the action must be regarded as being directed against the contested decision.

20 In support of his action, the applicant puts forward two pleas in law alleging, first, that the period of 30 working days laid down in Article 16 of the Staff Regulations was exceeded and, secondly, a manifest error of assessment and failure to state reasons.

21 When questioned during the hearing about his interest in pursuing the proceedings, given the political situation in Ukraine and the fact that Mr Azarov was no longer, on the date of the hearing, the Prime Minister of Ukraine, the applicant indicated that, if the contested decision was not annulled, he risked disciplinary action since he had admitted to working for Prime Minister Azarov after the expiry of the of 30-day period prescribed by Article 16 of the Staff Regulations. Moreover, even if Mr Azarov was no longer Prime Minister, the applicant nevertheless considered that he could continue to be his adviser.

22 Under this plea, the applicant argues that, after he had forwarded the declaration of intended activity, the Parliament did not communicate its reply within the period of 30 working days, thereby infringing Article 16 of the Staff Regulations.

23 In that regard, the applicant claims, first, that the Socialists and Democrats Group had been in possession of the declaration of intended activity since 8 November 2012. That group, the applicant claimed, had its own human resources department with which he had always dealt regarding all matters relating to his employment as a member of the temporary staff. The Socialists and Democrats Group, moreover, did not simply forward the declaration of intended activity to the Staff Management Unit, but also carried out its own assessment of the case. The Parliament cannot, therefore, argue that the notification of the applicant’s declaration of intended activity to the Socialists and Democrats Group was not an effective declaration to the Parliament as an institution. Again according to the applicant, as the Parliament received notification of the declaration of intended activity no later than 8 November 2012, the contested decision is therefore out of time.

24 Secondly, the applicant claims that the notification of the declaration of intended activity to the Socialists and Democrats Group, in its capacity as agent of the Parliament, is equivalent, in law, to effective notification of the Parliament, as the Socialists and Democrats Group forms part of the Parliament.

25 Thirdly, again according to the applicant, the declaration of intended activity was sent, in any event, to the Parliament’s services, in its offices in Luxembourg (Luxembourg). The email of 20 November 2012 could not, however, be considered to be a formal acknowledgment of receipt, as that formal requirement does not exist for internal communications at the Parliament. As that email referred to the letter of the Socialists and Democrats Group of 8 November 2012, and as that letter could not have reached the Parliament after 12 November 2012 according to the calculations of the applicant, the Parliament’s reply was not, according to the applicant, notified within the period of 30 working days.

27 As regards, first, the applicant’s argument claiming that, as a member of the temporary staff of the Socialists and Democrats Group, the notification of the declaration of intended activity to the general secretary of that group was equivalent, in law, to a notification in due form to the appointing authority of the Parliament, it suffices to note that the form for declaring an intended activity, used for this purpose by the applicant, itself expressly indicates that that declaration is ‘[to] be forwarded to the [Staff Management Unit], PRE 03B006, L-2929 Luxembourg, for further action and inclusion in the individual’s personal file’, thus confirming that an application under Article 16 of the Staff Regulations should be sent to the appointing authority that is competent for that purpose. Furthermore, in his email of 7 November 2012, the Head of the Human Resources Unit of the Socialists and Democrats Group invited the applicant to submit an application to the competent appointing authority ‘in order to fulfil the correct procedure and to receive the final permission for this activity’.

28 It is therefore necessary to examine on what date the competent appointing authority actually received the applicant’s request.

29 In that regard, the applicant claims that the appointing authority received the request on 8 November 2012, the date on which the Socialists and Democrats Group sent the declaration of intended activity to the Staff Management Unit. However, the Parliament states that the appointing authority received the declaration of intended activity on 20 November 2012, the date on which the Staff Management Unit acknowledged receipt of it. The Parliament contends, without being contradicted on this point by the applicant, that the Socialists and Democrats Group do not use the Parliament’s internal mail recording system, which would have made it possible to establish on what date the letter of 8 November had been received by the Staff Management Unit.

30 Although the date of registration or of acknowledgment of receipt of a document by the administration concerned does not make it possible to give a definite date for the lodging of that document, those registration or acknowledgment formalities nevertheless constitute, as an example of sound administrative management, at least a means of raising a presumption, until the contrary is proved, that the document reached it on the date indicated (order in Schmit v Commission, F-3/05, EU:F:2006:31, paragraph 29).

31 However, it should be noted that the applicant has produced no evidence to show that the declaration of intended activity arrived before the date on which the Parliament claims to have received it. Moreover, it is not for the recipient of an unregistered letter to establish the reasons for any delay in the delivery thereof (judgment in Michel v Parliament, 195/80, EU:C:1981:284, paragraph 11).

32 Consequently, the applicant’s argument, that the appointing authority received the declaration of intended activity before 20 November 2012, must be rejected.

33 Secondly, according to the second paragraph of Article 16 of the Staff Regulations, after consulting the Joint Committee, the institution is to notify its decision within 30 working days of receiving the declaration.

34 In the present case, it is therefore necessary to establish on what date the 30 working days expired.

35 In that regard, it is apparent from Article 2 of Regulation No 1182/71 that the working days to be taken into account are all days other than public holidays, Sundays and Saturdays and that, according to Article 3 of that regulation, the day on which the period starts to run is not included in the calculation of time-limits.

36 It is apparent from the communication regarding public holidays in 2012 for the institutions of the European Union, as published in the Official Journal of the European Union of 25 November 2010 (OJ C 320, p. 3), that the period from 24 December 2012 to 2 January 2013 inclusive was a period of public holidays.

37 Accordingly, the period of 30 working days referred to in the second paragraph of Article 16 of the Staff Regulations began to run, in the present case, on 21 November 2012. As the month of November 2012 contained 8 working days as of 21 November inclusive, and the month of December 2012 contained 15 working days, it follows that the month of January 2013, as of 3 January, contained 7 working days within the period set in the present case, the last working day to be taken into account being 11 January 2013.

38 As the applicant received notification of the contested decision on 7 January 2013, it is therefore clear that the appointing authority has complied with the time-limit set out in the second paragraph of Article 16 of the Staff Regulations.

The second plea in law, alleging a manifest error of assessment and a failure to state reasons

40 The applicant claims, first, that he did not formally represent the Socialists and Democrats Group before the Ukrainian authorities. The Parliament has, he claims, a delegation that represents it in its relations with Ukraine. That delegation is composed of members from each of the different parliamentary groups. Each group designates one of its members to coordinate with the delegation’s secretariat and the other groups. The person carrying out this function in the Socialists and Democrats Group during the last three years of the applicant’s employment was a Mr A. and not the applicant. The applicant also contests the Parliament’s contention that he attended the Congress of the Party of the Regions in Ukraine without the authorisation of the Socialists and Democrats Group.

41 Secondly, the applicant states that his activities during the last three years of service with the Socialists and Democrats Group are not directly related to the proposed activity. Again according to the applicant, the assessment of whether the proposed activity is ‘related’ to the work carried out by the official during his last three years of service depends on the assessment as to whether the proposed activity could lead to a conflict with the legitimate interests of the institution.

42 The applicant also argued that the proposed activity manifestly would not lead to a conflict with the legitimate interests of the Parliament, given that it is not an institution that conducts formal investigations having direct economic consequences for individuals and does not adopt executive or administrative measures which might possibly involve the handling of secret or sensitive information. By their very nature, the activities of the Parliament are in the public domain. According to the applicant, the contested decision is manifestly inconsistent with the Parliament’s resolution of 13 December 2012, expressing its continued support for the European aspirations of the Ukrainian people and confirming the European Union’s commitment to further advancing relations with Ukraine through the signing of an association agreement. The applicant also observes that the Socialists and Democrats Group had no objections to the activities that he proposed to carry out.

43 Furthermore, the applicant claims that the Joint Committee gave no explanation for its opinion.

44 As regards the failure to state reasons, the applicant claims that the decision to reject the complaint does not explain why his alleged contacts in Ukraine, or why his attendance at the Congress of the Party of Regions, could lead to a conflict with the legitimate interests of the Parliament. The fact that the Joint Committee gave an opinion does not discharge the Parliament from the obligation to state reasons for the contested decision and for the decision to reject the complaint.

46 It should be noted that, with regard to the exercise of an occupational activity, whether gainful or not, within two years of an official leaving the service, the power of the appointing authority to prevent him from performing that activity or to impose conditions on such activity is subject to two separate conditions. First, that the proposed activity is related to the activity of the official during his last three years of service and, secondly, that the proposed activity could lead to a conflict with the legitimate interests of the institution.

47 It follows that the applicant’s argument that the answer to the question whether the proposed activity is ‘related’ to the work carried out by the official during his last three years of service depends on the answer to the question whether the proposed activity could lead to a conflict with the legitimate interests of the institution, must be rejected.

48 As regards the first condition, it is apparent from the wording of Article 16 of the Staff Regulations that, contrary to what the applicant claims, it is sufficient for the proposed activity to be related in any way to the activity carried out during the three years prior to leaving the service.

49 It must be pointed out that the staff reports of the applicant show that he had been in charge of tasks related to European Union enlargement, neighbourhood policies and foreign affairs, including accompanying, assisting and/or representing the General Secretary of the political group and the vice-presidents concerned at delegations, meetings and special assignments, particularly in central and eastern Europe, carried out by that political group. It is also undisputed that the applicant established relationships with the Ukrainian authorities in the context of his duties in the Socialists and Democrats Group.

50 It follows that the Parliament did not commit a manifest error of assessment in finding that the first condition laid down by Article 16 of the Staff Regulations was met in the present case.

51 As regards the second condition laid down by Article 16 of the Staff regulations, it must be observed that it is evident from the very wording of that provision that, although the proposed activity could lead to a conflict with the legitimate interests of the institution, that institution has wide discretion.

52 The applicant’s argument, that the Parliament does not conduct formal investigations having direct economic consequences for individuals and does not adopt measures which might possibly involve the handling of secret or sensitive information, must be rejected. That argument amounts to denying the power of the Parliament to determine whether the proposed activity could lead to a conflict with the activity carried out during the last three years of service.

53 In that regard, it does not matter that the Parliament, in its resolution of 13 December 2012, expressed support for closer relations between Ukraine and the European Union. The applicant cannot claim that by adopting that resolution the Parliament intended to limit its broad discretion under Article 16 of the Staff Regulations.

54 As regards the applicant’s argument that the opinion of the Joint Committee does not state reasons, it suffices to note that, according to Article 16 of the Staff Regulations, the appointing authority is not bound by that opinion.

55 It follows that, in taking the view that the two conditions required by Article 16 of the Staff Regulations were met in the present case, the Parliament did not commit a manifest error of assessment.

56 As regards the duty to state reasons, it should be noted that although this is intended to enable the addressee of the measure to ascertain whether it is well founded and, accordingly, whether it is appropriate to bring proceedings before the Tribunal, and to enable the Tribunal to review the legality of that measure (judgment in Behmer v Parliament, F-124/07, EU:F:2009:104, paragraph 58 and the case-law cited), a statement of reasons for a decision is adequate if the decision was taken in a context which is known to the official concerned and which enables him to understand the scope of the measure which has been adopted in regard to him (see, inter alia, judgment in Gheysens v Council, F-8/10, EU:F:2010:151, paragraph 63). It is clear from the foregoing, and in particular from the absence of a manifest error of assessment, that the plea alleging a failure to state reasons is unfounded.

59 Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to bear his own costs and be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, the Tribunal may, if equity so requires, decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.

60 It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the Parliament has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 102(1) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the Parliament.

2. Declares that Mr van de Water is to bear his own costs and orders him to pay the costs incurred by the Parliament.

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