Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

11 April 2018 (*)

(Common foreign and security policy — National staff member seconded to EUPM in Bosnia and Herzegovina — Redeployment decision — Power of the Head of the EUPM to decide on the redeployment of a seconded national staff member — Obligation to state reasons — Misuse of powers — Manifest error of assessment — Psychological harassment)

In Case T‑271/10 RENV,

H, represented by M. Velardo, lawyer,

applicant,

v

Council of the European Union, represented by A. Vitro and F. Naert, acting as Agents,

defendant,

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

THE GENERAL COURT (Sixth Chamber),

composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,

Registrar: C. Heeren, Administrator,

having regard to the written part of the procedure and further to the hearing on 13 September 2017,

gives the following

Judgment

I.      Background to the dispute

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

2        The EUPM, which started on 1 January 2003, was extended a number of times, in particular by Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (OJ 2009 L 322, p. 22), and ended on 30 June 2012.

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

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

5        Following the restructuring of the EUPM, from 1 January 2010 the post of Chief Legal Officer occupied by the applicant was renamed Senior Legal Advisor/Legal Counsel.

6        By decision of 7 April 2010, signed by the Chief of Personnel of the EUPM, the appellant was redeployed for ‘operational reasons’ to the post of Criminal Justice Advisor — Prosecutor in the regional office in Banja Luka (Bosnia and Herzegovina) from 19 April 2010 (‘the decision of 7 April 2010’).

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

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

9        On 4 June 2010, the appellant brought an action before the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio, Italy) for annulment of the decision of 7 April 2010 and compensation for the harm allegedly suffered. She also applied to that court for suspension of the operation of the decision of 7 April 2010.

II.    Procedure before the General Court and the Court of Justice prior to referral

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

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

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

13      The applicant lodged an appeal against the initial order, claiming, in essence, that the General Court had erred in law when it declared that it lacked jurisdiction to hear and determine the claim.

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

15      The Court of Justice held, in essence, at paragraphs 58 and 59 of the appeal judgment that the contested decisions, in so far as they had redeployed the applicant within the EUPM in Bosnia and Herzegovina, constituted acts of staff management intended to redeploy members of the mission at theatre level. It considered that those decisions, although adopted in the context of the Common Foreign and Security Policy (CFSP), did not constitute acts referred to in the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU. It considered that, as a consequence, they came under the jurisdiction of the EU judicature and stated that that jurisdiction stemmed, respectively, as regards the review of the legality of those acts, from Article 263 TFEU and, as regards actions for non-contractual liability, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union.

III. Procedure following referral

16      By letters of 4 August 2016, the Registry of the General Court invited the parties to present their written observations, pursuant to Article 217(1) of the Rules of Procedure of the General Court, regarding the consequences of the appeal judgment in the present proceedings. The applicant and the Council lodged their observations at the Registry of the General Court within the time limit allowed.

17      By decision of the President of the General Court of 25 August 2016, the present case was allocated to another Judge-Rapporteur assigned to the Ninth Chamber.

18      On 29 September 2016, the applicant submitted new evidence.

19      By decision of 5 October 2016 of the President of the General Court, adopted as a result of the partial renewal of the General Court, the present case was reallocated to a new Judge Rapporteur who was assigned to the Sixth Chamber to which the present case was accordingly allocated.

20      By letters of 17 October 2016, the Registry of the General Court invited the parties to submit supplementary statements of written observations, pursuant to Article 217(3) of the Rules of Procedure. At the same time, the Council was invited to submit its observations on the new evidence submitted by the applicant.

21      The applicant and the Council lodged their statements at the Registry of the General Court within the time limit allowed, that is to say, 3 November 2016. The Council also submitted its observations on the new evidence submitted by the applicant.

22      On 29 November 2016, the applicant made a reasoned request for a hearing to be held.

23      On a proposal from the Judge-Rapporteur, the General Court (Sixth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure under Article 89 of the Rules of Procedure, put questions to the parties in writing, asking them to reply before the hearing.

24      The parties complied with that request within the time allowed. Annexed to their replies to the General Court’s questions, the parties produced additional evidence, pursuant to Article 85(3) of the Rules of Procedure.

25      The parties presented oral argument and replied to the Court’s oral questions at the hearing on 13 September 2017. The General Court asked the Council to reply in writing to certain questions and to produce additional documents. The Council complied with those requests within the prescribed period.

IV.    Forms of order sought

26      In her application, the applicant claimed that the Court should:

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

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

–        order the Council, the Commission and the EUPM to pay the costs, together with interest at 8%.

27      In the reply, the applicant amended the form of order sought by adding to the total amount of the damages claimed in the application the sum of EUR 8 000 and discontinued the action against the EUPM.

28      In her observations after the referral, the applicant amended the form of order sought following the appeal judgment in order to direct the action solely against the Council. At the same time, she amended the form of order sought so that, first, the action no longer seeks annulment of the contested decisions, but only that the General Court rules on their illegality, and, secondly, the damages also cover the harm suffered as a result of the fact that it is impossible to annul the contested decisions. Thus, she claims that the Court should:

–        declare the action admissible and well founded;

–        rule on the illegality of the decision of 7 April 2010 and, if necessary, the decision of 30 April 2010;

–        order the Council to pay damages for the harm suffered, assessed ex aequeo et bono in the sum of EUR 30 000, together with the sum of EUR 8 000 and, in so far as it is not possible to annul the decision 7 April 2010, award the consequent damages;

–        order the Council to pay the costs, together with interest at 8%.

29      In response to a measure of organisation of procedure (see paragraph 23 above), the applicant stated that she was retaining her head of claim for annulment of the decision of 7 April 2010 and, if necessary, the decision of 30 April 2010.

30      At the hearing, the applicant stated that the form of order which she was seeking was primarily the annulment of the decision of 7 April 2010, and if necessary the decision of 30 April 2010, and an award for damages as specified, and in the alternative, a declaration that those decisions are unlawful solely for the purposes of obtaining an award for damages.

31      The Council contends that the Court should:

–        dismiss the action as unfounded;

–        order the applicant to pay the costs.

V.      Law

A.      Preliminary observations

32      Given that the applicant amended the form of order which she was seeking a number of times, it must be stated that the purpose of this action is, in the first place, an application on the basis of Article 263 TFEU for annulment of the contested decisions and, in the second place, an application on the basis of Article 268 TFEU seeking damages for the harm which the applicant allegedly suffered as a result of her redeployment.

33      In their observations on the consequences to be drawn from the appeal judgment, the parties refer to the pleas and arguments which they made in the proceedings before the referral back to the General Court.

B.      The claim for annulment

1.      Admissibility of certain arguments raised in the reply

34      The Council argues that the applicant’s claims in the reply relating to the alleged procedural error committed by the Head of the EUPM and the immunity which she allegedly enjoys are new pleas in law which must be rejected as inadmissible.

35      The applicant has not responded to the Council’s submissions in that respect.

36      In that regard, it is appropriate to recall that, under Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which come to light in the course of the procedure.

37      However, a plea which constitutes an amplification of a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible. The same applies to a submission made in support of a plea in law (see judgment of 26 February 2016, Bodson and Others v EIB, T‑240/14 P, EU:T:2016:104, paragraph 30 and the case-law cited).

38      In the present case, it must be noted that both arguments, described as new pleas by the Council in the rejoinder, were presented in the reply in support of the first plea alleging infringement of the provisions of Decision 2009/906 and tied in with the argument that the Head of the EUPM is not authorised to adopt decisions relating to the redeployment of staff. Therefore, they are not new pleas, but at most additional arguments in support of that plea, which are, in principle, admissible (see, to that effect, judgment of 18 July 2006, Rossi v OHIM, C‑214/05 P, EU:C:2006:494, paragraph 30).

39      In addition, with regard, first, to the argument alleging that the Head of the EUPM committed a procedural error by failing to consult the Member State of origin before taking the redeployment decision, it must be pointed out that the applicant had already raised that in the application in which she had stated that a redeployment decision could be taken only after ‘having heard the Member State seconding the Applicant’. The fact that the applicant described that omission as a procedural error for the first time in the reply does not lead to the conclusion that that argument is a new plea or complaint.

40      Secondly, with regard to the argument that, in accordance with an express provision of the Italian Constitution, the applicant could not be redeployed, that argument is intended to justify the need to hear the Member State of origin before a redeployment decision is taken and is therefore tied in with the complaint set out in the application alleging that no such consultation took place.

41      It follows that those arguments were submitted in support of the line of argument already advanced in the application in support of the first plea in law and that therefore they must be regarded as admissible.

2.      Substance

42      In support of her application for annulment of the contested decisions, the applicant puts forward the five pleas in law relied on in support of the initial application for annulment and developed in the reply. Those pleas allege respectively (i) an infringement of the provisions of Decision 2009/906 relating to the authority of the Head of the EUPM to decide on her redeployment to Banja Luka, (ii) a failure to provide adequate reasons, (iii) a misuse of power, (iv) a manifest error of assessment and (v) psychological harassment, one of the results of which was the decision of 7 April 2010.

(a)    First plea in law: infringement of the provisions of Decision 2009/906

43      The applicant claims that the contested decisions were issued in breach of the provisions of Decision 2009/906. That plea contains, in essence, two parts alleging, respectively, (i) that the Head of the EUPM lacked the power to adopt decisions relating to the redeployment of staff, and (ii) that the Member State of Origin was not consulted before the redeployment decision was taken.

(1)    The first part, alleging that the Head of the EUPM lacked the power to adopt decisions relating to the redeployment of staff

44      The applicant claims that the decision of 7 April 2010 concerning her redeployment to Banja Luka, involving her ‘downgrading’, has no legal basis, given that the Head of the EUPM was not authorised to adopt decisions relating to the redeployment of staff. She adds that that decision should have been taken only by the Civilian Operation Commander. In the reply, the applicant argues that the interpretation given by the Operations Plan Council (OPLAN) concerning the power of the Head of the EUPM to redeploy members of staff contravenes Decision 2009/906, in that that decision assigns to the Head of the EUPM only those ‘tasks related to day-to-day management’ and that it is therefore unlawful.

45      The Council disputes the applicant’s arguments.

46      In the first place, it must be stated at the outset that Decision 2009/906 does not contain any specific provisions relating to the power to redeploy EUPM staff.

47      In the second place, it must be pointed out that Decision 2009/906 does not define either the expressions ‘operational control’, ‘strategic level’, or ‘theatre level’, or the terms ‘command’ or ‘control’, even though it uses them.

48      In that regard, the general scheme of Decision 2009/906 shows only that the Head of the EUPM exercised, as the person responsible for the EUPM ‘at theatre level’, ‘command’ and ‘control’ over that mission, in particular over personnel, teams and units ‘from contributing States’ which had been ‘assigned’ by the Civilian Operation Commander. Furthermore, the Head of the EUPM was entrusted with ensuring the coordination and day-to-day management of the EUPM in Bosnia and Herzegovina by giving all necessary instructions to ‘all’ staff for the effective conduct of the mission in that theatre of operations (see, to that effect, appeal judgment, paragraph 52).

49      In those circumstances, in order to determine who was authorised to redeploy the staff of the EUPM, it is necessary to consider not only the wording of Decision 2009/906, but also the context in which it occurs and the objectives pursued by the rules of which it is part.

50      With regard to the context, it is common ground that the EUPM, established by Joint Action 2002/210, was the EU’s first civil mission organised as part of its European Security and Defence Policy (ESDP), now the Common Security and Defence Policy (CSDP), as a non-executive mission, using the military operations as its model for planning and command.

51      It is clear from Joint Action 2002/210 that the activities of the EUPM were not due to start until 1 January 2003. The Council therefore made provision for a planning team to be deployed by 1 April 2002 at the latest and that the head of that team would become the Head of the EUPM as of 1 January 2003. In the meantime, the head was to help the General Secretariat of the Council to develop the Mission’s Concept of Operations (CONOPS). Next, the Planning Team was to draw up the Operation Plan (OPLAN) and develop all technical instruments necessary to deploy the EUPM. The Council then adopted the CONOPS and the OPLAN in order to enable the mission to start its activities on the planned date.

52      It is also clear from Joint Action 2002/210 that, for the period of its first mandate, that is to say, 2003 to 2005, the EUPM was composed of a main headquarters in Sarajevo (Bosnia and Herzegovina) where, in particular, the Head of the EUPM worked along with a variable number of liaison officers responsible for contacts with other international organisations on the ground. Moreover, monitoring units were also deployed within the Bosnia and Herzegovina Police ‘at medium-high level’. Apart from police officers seconded by the Member States, the EUPM could recruit, on a contractual basis, international civilian staff and local staff. Member States or the institutions of the European Union could also participate in the mission by seconding international civilian staff.

53      Thereafter, the EUPM pursued its mission with a regularly adjusted mandate and size.

54      The EUPM was redefined in 2009 on the basis of Article 28 and Article 43(2) TEU as an operational action of the European Union, decided and carried out under the CSDP, which is an integral part of CFSP, with the objective, in essence, of supporting the law enforcement agencies in Bosnia and Herzegovina in their fight against organised crime and corruption, as is apparent from the first paragraph of Article 2 of Decision 2009/906.

55      On the basis of the second sentence of Article 4(2) of Decision 2009/906, the Council approved the new OPLAN of the EUPM which was subsequently updated and amended by the Political and Security Committee (PSC) in accordance with the third paragraph of Article 38 TEU on the basis of the second sentence of Article 10(1) of that decision.

56      As part of its new mandate, the EUPM was to focus in particular on State level law enforcement agencies, on enhancement of the interaction between police and prosecutor and on regional and international cooperation. Furthermore, the structure of the mission had been modified so as to add, in Bosnia and Herzegovina, four regional offices in Sarajevo, Banja Luka, Mostar and Tuzla in addition to the headquarters and the units deployed within the police.

57      It is in that overall context, in which the decision of the Head of the EUPM was taken, that it is necessary to examine the power of the Head of the EUPM to redeploy the applicant from the headquarters in Sarajevo to the regional office in Banja Luka.

58      It should be stated at the outset that, in accordance with the second paragraph of Article 24(1) TEU ‘the [CFSP] is subject to specific rules and procedures [and it is] defined and implemented by the European Council and the Council acting unanimously’.

59      In that regard, in the first place, it is common ground that, at the time of the creation of the EUPM, neither the Civilian Planning and Conduct Capability (CPCC), as an entity in charge of the planning, deployment, conduct and review of civilian CSDP crisis-management missions, nor its Civilian Operation Commander existed in the institutional set-up of the EU.

60      On 18 June 2007, the Council approved the Guidelines for Command and Control Structure for EU Civilian Operations in Crisis Management (‘the Guidelines for Command and Control Structure’) which provided, inter alia, that the Civilian Operation Commander would exercise command and control at strategic level for the planning and conduct of all civilian crisis management operations under the political control and strategic direction of the PSC and the overall authority of the High Representative (HR), and that the Director of the CPCC established within the Council Secretariat would, for each civilian crisis management operation, be the Civilian Operation Commander.

61      Therefore, for all civilian operations, the Commander is the Director of the CPCC and is supported at theatre level by the Head of the EUPM who has all the standard powers of control and command over staff under his direction. The chain of command is connected to the PSC which provides the strategic direction and political control of the operation under the authority of the Council.

62      In that context, the Director of the CPCC was designated as the Civilian Operation Commander of the EUPM in Article 5 of Council Joint Action 2007/749/CFSP of 19 November 2007 on the EUPM in Bosnia and Herzegovina (OJ 2007 L 303, p. 40) by which the EUPM was continued as from 1 January 2008.

63      It is clear from a combined reading of Articles 5(1) and (4) of Joint Action 2007/749 and of Articles 5(1) and (4) of Decision 2009/906 that the national authorities transferred to the Civilian Operation Commander of the EUPM ‘Operational Control’ of their personnel, teams and units as their contribution.

64      Furthermore, it is clear from a combined reading of Articles 5 and 6 of Decision 2009/906 that the Civilian Operation Commander exercised command and control of the EUPM ‘at the strategic level’, while the Head of the EUPM did so ‘at theatre level’.

65      In the second place, it is also common ground that, in the case of standard CSDP missions and operations conducted under Article 43 TEU, planning and execution are carried out within the European External Action Service (EEAS), in accordance with the crisis management procedures. By virtue of those procedures, it falls, inter alia, to the EEAS to draw up the planning documents, such as the CONOPS and the OPLAN, and to define the conditions for the implementation and accountability of the force generation process. Thereafter, it falls to the Council to approve them.

66      That being so, it should be considered that, to the extent that Decision 2009/906 does not contain any express provisions relating to the person who is responsible for the redeployment of EUPM personnel within that mission, it is complemented by the OPLAN and the Guidelines for Command and Control Structure.

67      According to paragraph 5.3, second subparagraph, of the 2009 OPLAN, as produced by the Council following a measure of organisation of procedure, in the partially declassified version, ‘the [Head of Mission] retains the final authority to appoint personnel and the overall responsibility to deploy them’. The third subparagraph of paragraph 5.3 of the 2009 OPLAN sets out the criteria for filling posts in the EUPM, which include the needs of that mission. Similarly, the power of the Head of the EUPM to deploy his personnel is also apparent from a reading of Annex M to the OPLAN, entitled ‘Personnel Administration’, which details the conditions for engaging staff and the powers of the Head of Mission in that regard, by stating that ‘the [Head of Mission] retains the final authority to appoint personnel and the overall responsibility to deploy them, both [at] international and local [level]’. Finally, in Annex D to the OPLAN, entitled ‘Standard Operating Procedures’, it states in paragraph 2, third subparagraph, relating to deployments, that ‘deployment and/or redeployment decisions are the responsibility of the Head of Mission’.

68      In addition, under paragraph 6(1)(c) of the Guidelines for Command and Control Structure, operational control (OPCON) was defined as being ‘the authority assigned to an ESDP official to direct individuals, teams and units assigned so that he/she may accomplish specific missions or tasks which are usually limited by function, time, or location; to deploy them, and to retain or delegate operational control or tactical command or control as may be deemed necessary’.

69      It follows that the operational control exercised at ‘theatre level’ by the Head of Mission necessarily implies that it is possible for the Head to take decisions, including the redeployment of staff, as soon as possible, and to make staff seconded by the Member States subject to those decisions for the purposes of fulfilling the mission.

70      In view of the provisions referred to in paragraphs 64 and 67 to 69 above, it should be considered that the Civilian Operation Commander, who exercises, under the political control and strategic direction of the PSC and under the general authority of the High Representative (HR), command and control at strategic level for the planning and conduct of all the civilian CSDP missions and who is the General Commander of all the civilian Heads of Mission, has the power to deploy staff to each EU civilian mission, for the purposes of Article 6(2) of Decision 2009/906. On the other hand, within each mission, the power to deploy and redeploy staff comes within the remit of the Head of the EUPM alone.

71      Consequently, as was pointed out in paragraph 66 above, in so far as the provisions of the OPLAN merely complement Decision 2009/906 which does not contain any express provisions relating to the person responsible for the redeployment of EUPM staff within that mission, the applicant’s argument regarding the possible illegality of the provisions of the OPLAN, which allegedly contravene Decision 2009/906, cannot succeed.

72      It follows that the first part of the first ground of appeal must be rejected.

(2)    The second part, alleging that the Member State of Origin was not consulted before the redeployment decision was taken

73      The applicant claims that, in any event, the decision of 7 April 2010 on her redeployment to Banja Luka should have been taken only after the Member State which seconded her was heard. Therefore, by failing to consult the Member State of Origin before taking the redeployment decision, the Head of the EUPM committed a procedural error. Furthermore, she adds that, in accordance with an express constitutional provision contained in the Italian Constitution intended to ensure the impartiality of judges in the performance of their duties, she could not be redeployed.

74      The Council rejects the applicant’s arguments.

75      In the first place, with regard to the applicant’s argument that the Head of the EUPM committed a procedural error by taking the redeployment decision without consulting her Member State of Origin, it must be noted at the outset that the applicant does not identify any provision under which such a consultation was necessary.

76      Next, it must be stated that neither the terms nor the spirit of Decision 2009/906 or the OPLAN require the Head of the EUPM to conduct a prior consultation with the Member State of origin before taking a decision to redeploy staff seconded by Member States.

77      In that regard, it must be recalled that, in accordance with Article 7(2) and (3) of Decision 2009/906, the EUPM has staff which is either recruited on a contractual basis, or is seconded from an EU institution, or is seconded from a Member State. Specifically with regard to staff seconded by the Member States, it is clear from the second sentence of Article 5(4) of Decision 2009/906 and from paragraph 5.2 of the OPLAN that the national authorities transferred operational control of their personnel, teams and units to the Civilian Operation Commander, and from Article 6(2) of that decision that that operational control was exercised ‘at theatre level’ by the Head of Mission.

78      As was pointed out in paragraph 69 above, it is clear from paragraph 6(1)(c) of the Guidelines for Command and Control Structure that operational control means that the Head of the EUPM may take decisions, including the redeployment of staff, as soon as possible, and make staff seconded by the Member States subject to those decisions for the purposes of fulfilling the mission. That operational nature is therefore incompatible with a procedure for prior consultation with the authority of origin, such as the one referred to by the applicant.

79      Moreover, in accordance with the rules governing CSDP missions, the applicant was asked for her express consent to serve the mission in a post other than the one she applied for, and consequently, the application form which she completed and signed on 10 November 2008 for the post from which she was redeployed contained that consent. Contrary to what the applicant maintained at the hearing, it is not apparent from that application form that her consent was limited solely to other functions exercised within the main headquarters in Sarajevo and excluded the other structures of the EUPM.

80      It must be noted that it is apparent from the provisions of Decision 2009/906 that staff members seconded by the Member States and those seconded by the EU institutions were subject to the same rules so far as concerns the performance of their duties ‘at theatre level’ (see, to that effect, appeal judgment, paragraph 50).

81      Consequently, there is no reason to conclude that treating staff seconded by the Member States differently from staff seconded by the EU institutions in the redeployment procedure ‘at theatre level’ would be compatible with the crisis management operations conducted by the EUPM. 

82      In the second place, with regard to the argument that the applicant could not be redeployed by virtue of an express provision contained in the Italian Constitution intended to ensure the impartiality of judges in the performance of their duties, it must be made clear at the outset that the applicant did not identify the provision of the Italian Constitution on which she based that argument. If the applicant is referring to the guarantee of security of tenure of judges laid down in Article 107 of the Italian Constitution, under which a judge may not be redeployed without his/her agreement or without a special procedure being followed, it must be held that that guarantee cannot apply in the present case.

83      First, the applicant was not appointed to perform her role as a prosecutor within the EUPM, but a role as legal counsel for which her professional experience as a prosecutor had been considered relevant. Furthermore, the applicant retained the status of a judge under national law only with reference to national authorities. Once she was seconded to the EUPM, her status within that mission was not the status of a judge, but that of a seconded national staff member.

84      Secondly, when the applicant submitted her application for a position in an international body, whose organisation and operating rules are outside any control of her State of origin, she implicitly consented to being subject to the specific rules of that body.

85      It follows from all of the foregoing that the second part of the first plea in law must be rejected as must the first plea in law in its entirety.

(b)    Second plea in law: failure to state sufficient reasons

86      According to the applicant, the decision of 7 April 2010 fails to provide an adequate statement of reasons, in that the Head of the EUPM has not identified either the legal basis of that decision or the objective reasons for her ‘downgrading’ and her redeployment. She submits that the reference to ‘operational reasons’ is entirely insufficient to enable her to understand whether the service had any interest in downgrading and redeploying her. Furthermore, she adds that the Head of the EUPM did not explain for which events or reasons it was necessary to deploy a prosecutor to Banja Luka immediately when a selection procedure was ongoing. Furthermore, she states that the vacancy for the post of Criminal Justice Advisor in Banja Luka had been advertised either for a prosecutor or for a police officer and that that post has not been filled since, while the post which she had left vacant in Sarajevo was immediately filled by a police officer.

87      The Council disputes the applicant’s arguments.

88      It must be recalled at the outset that the obligation to state reasons, provided for in Article 296 TFEU, is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not its statement of reasons, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 143 and the case-law cited).

89      Furthermore, the Court has consistently held that the statement of reasons required by Article 296 TFEU must be appropriate to the contested measure and to the context in which it was adopted. It must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirement that reasons be given must be assessed according to the circumstances of the case (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 144 and the case-law cited).

90      It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. Accordingly, first, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables that person to understand the scope of the measure concerning him/her. Secondly, the degree of precision of the statement of reasons for a measure must be weighted against practical realities and the time and technical facilities available for taking the measure (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 145 and the case-law cited).

91      Therefore, it is sufficient that the statement of reasons in an act imposing a measure for the redeployment of staff within an EU civilian mission under the CFSP identifies the actual and specific reasons why the author of that act considers, in the exercise of his discretion, that that measure must be adopted in respect of the person concerned (see, to that effect and by analogy, judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 52).

92      In addition, compliance with the duty to state reasons must, in principle, be determined in accordance with the information available to the applicant, at the latest, when the action was brought (see, to that effect and by analogy, judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15, EU:T:2017:462, paragraph 74 and the case-law cited).

93      In the present case, it must, first of all, be stated that, in accordance with the case-law cited in paragraphs 88 and 90 above, the reasons justifying the applicant’s redeployment, as of 19 April 2010, to the post of Criminal Justice Advisor at the Banja Luka regional office, contrary to what the applicant appears to be suggesting, do not have to ‘demonstrate’ that that measure is well founded in order to satisfy the requirement to state reasons laid down in Article 296 TFEU. In that regard, it is sufficient that, having regard to all the particular circumstances of the case, the reasons why the Head of the EUPM had considered that the applicant had to be redeployed to that position, for the purposes of the contested decisions, are sufficiently clear and unequivocal.

94      Next, in accordance with the case-law cited in paragraphs 89 to 92 above and contrary to what the applicant maintains, the fact that the decision of 7 April 2010 referred only to ‘operational reasons’ for her redeployment to the post of Criminal Justice Advisor at the Banja Luka regional office does not, however, lead to the conclusion, as such, that there was a failure to provide a statement of reasons for the purposes of Article 296 TFEU.

95      In that regard, since the Head of the EUPM’s reasoning is clear from the decision of 30 April 2010 which confirms the redeployment required by the decision of 7 April 2010 and states that the operational reason for that redeployment was the need for prosecution advice in the Banja Luka regional office, it must be held that the reasons set out in the decision of 30 April 2010 satisfy the requirement to state reasons under the second paragraph of Article 296 TFEU.

96      The decision of 7 April 2010 is one of the decisions adopted by the competent authorities of the EUPM relating to the allocation of human resources assigned to it by the Member States for the purposes of performing activities undertaken at theatre level, which, despite being acts of staff management, have an operational aspect falling within the CFSP (see, to that effect, appeal judgment, paragraph 54). Furthermore, in paragraph 42 of the appeal judgment, the Court of Justice held that the contested decisions related to an operational action of the European Union decided upon and carried out under the CFSP, an action which, as was apparent from the first paragraph of Article 2 of Decision 2009/906, had, in essence, the objective of supporting the law enforcement agencies in Bosnia and Herzegovina in their fight against organised crime and corruption. Consequently, since it falls to the Head of the EUPM to take the necessary decisions ‘at theatre level’ in order to attain that objective and since he has a broad discretion in that respect, the operational reason, as set out in the decision of 30 April 2010, cannot be regarded as being an insufficient statement of reasons for the applicant’s redeployment within the EUPM.

97      That conclusion cannot be called into question by the applicant’s arguments relating to the failure to provide a statement of reasons for the urgency of the redeployment measure, the reality of the need relied upon or the failure to refer to a legal basis for her redeployment.

98      In that regard, it must be considered that, since an operational reason in itself implies a certain degree of urgency, an additional statement of reasons was not necessary, in accordance with the case-law referred to in paragraph 90 above.

99      With regard to the issue whether the need for prosecution advice at the Banja Luka regional office was a real need, that comes under the merits of the redeployment measure and will be dealt with under the third plea in law alleging a misuse of powers, in accordance with the case-law cited in paragraph 88 above.

100    As for the appellant’s argument relating to the alleged lack of a legal basis for the contested decisions, suffice it to recall that, as regards the individual decisions, in accordance with the case-law cited in paragraph 90 above, there is no requirement that such decisions specify all of the relevant factual and legal elements. In any event, it must be stated that, as was pointed out in paragraph 47 above, Decision 2009/906 does not contain any express provisions on the redeployment of EUPM staff which could have been mentioned.

101    It is indeed regrettable that the contested decisions do not contain more explanations regarding the reasons which led to the applicant’s redeployment. However, it must be pointed out that, by relying on the power of the Civilian Operation Commander to decide on her redeployment, the applicant acknowledges that she came under the chain of command of the EUPM on the basis of Decision 2009/906 and the OPLAN. In those circumstances, the mere fact that the redeployment decision was taken by the Head of the EUPM, and not by the Civil Operation Commander, could not have any effect on the applicant’s ability to understand the scope of the measure taken by the Head of the EUPM and to challenge it, in the absence of any reference to a legal basis in that decision.

102    It follows that, since the applicant was in a position to know of the reason for her redeployment to the post of Criminal Justice Advisor at the Banja Luka regional office, and the General Court can exercise its power of review in that regard, the second plea in law must be rejected.

(c)    Third and fifth pleas in law: respectively, a misuse of powers and psychological harassment

103    In support of the third plea in law, alleging a misuse of powers, the applicant submits, in essence, that, in factual terms, the decision to redeploy her and to ‘downgrade’ her had no objective other than to harass her psychologically and to offend her. She claims that the redeployment and downgrading procedure was thus followed in order to achieve ends other than those established by law. In that regard, she states that there was no genuine need to deploy a prosecutor urgently to Banja Luka, that a procedure had been launched immediately in order to recruit a new Chief Legal Officer in Sarajevo and that, at the time of her redeployment to Banja Luka, a call for applications for the post of Criminal Justice Advisor was still ongoing. According to the applicant, the decision of 7 April 2010 was adopted in order to harass her psychologically and professionally, because she was not only redeployed for no objective reason, but she was also ‘downgraded’. According to the applicant, while the duties of Senior Legal Advisor/Legal Counsel (previously known as Chief Legal Officer) were exercised at the most prestigious headquarters and involved the management of a team, those of Criminal Justice Advisor were carried out in a regional office and did not involve any coordination activity. In support of the fifth plea in law, alleging psychological harassment, the applicant claims that, in accordance with settled case-law, a decision or conduct may be regarded as psychological or professional harassment where two conditions are satisfied, namely, the conduct or the decision is part of a series of acts repeated over a certain period and those acts are intentional, that is to say, they are not the result of other circumstances. In the present case, her redeployment and her ‘downgrading’ were decided in the absence of any objective interest of the service and were therefore intentional. In addition, the redeployment and ‘downgrading’ were accompanied by a series of offensive acts, including restrictions on telephone access, a very aggressive email telling her to clear her office, unjustified difficulties in taking leave and her exclusion from the main activities of the EUPM during her secondment.

104    The Council disputes the merits of the applicant’s arguments.

105    As a preliminary point, it must be recalled that it has been recognised that it is possible to rely on psychological harassment to support a claim for annulment which is not directed against the decision to refuse to grant a request for assistance made by a member of staff on the ground that the latter considers him/herself to be the victim of harassment, but which is directed against other decisions taken by the administration (see, to that effect, judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraphs 67 and 70 to 72).

106    It is true that the case-law cited in paragraph 105 above was developed, inter alia, in connection with the EU civil service and that the applicant is not an official or other servant of the European Union. However, since the Court of Justice established in paragraph 50 of the appeal judgment that staff members seconded by the EU institutions whose status is governed by the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and those seconded by the Member States are subject to the same rules as regards the performance of their duties ‘at theatre level’, nothing precludes the transposition of that case-law to the claim directed against the decisions of the Head of the EUPM to redeploy a staff member seconded by a Member State.

107    In that regard, it is clear from the case-law that the existence of a context of psychological harassment may also be taken into account where the author of the harassment is also the signatory of the contested decision in order to establish that that decision was adopted with the aim of harming the staff member, and that it is therefore vitiated by a misuse of power. Thus, with regard to an allegation of psychological harassment made in support of a claim directed against a redeployment decision, that decision may be vitiated by a misuse of power if it was adopted in order to undermine the personality, dignity or physical or psychological integrity of the staff member (see, to that effect, judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraphs 71 and 72).

108    In the present case, it must be stated that what the applicant identifies as the fifth plea in law, alleging psychological harassment, in reality constitutes the factual basis of the third plea in law, alleging a misuse of powers, by which she claims that the Head of the EUPM misused his powers with the sole aim of harassing her. Thus, it is possible that the facts relied on to prove the existence of psychological harassment, even though they may not be characterised as such for the purposes of the case-law developed in relation to the provisions of Article 12a of the Staff Regulations, which might be transposable to the present case as was outlined in paragraph 106 above, nevertheless show that the redeployment decision is vitiated by a misuse of power and that it should, consequently, be annulled for that reason (see, to that effect, judgment of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 73).

109    In the light of all the foregoing, the General Court considers that it is appropriate to examine the third and fifth pleas in law together.

110    According to settled case-law, the concept of misuse of powers has a very precise meaning and encompasses the use made by an administrative authority of its powers for a purpose other than that for which they were conferred upon it (see order of 19 December 2013, da Silva Tenreiro v Commission, T‑32/13 P, EU:T:2013:721, paragraph 31 and the case-law cited).

111    In that regard, it must be recalled that the case-law has accorded to the EU institutions a broad discretion to organise their departments in keeping with the tasks entrusted to them and to assign the staff available to them with a view to carrying out those tasks, on condition, however, that they are assigned in the interests of the service and in conformity with the principle that staff must be assigned to an equivalent post (see judgment of 23 November 1999, Sabbioni v Commission, T‑129/98, EU:T:1999:295, paragraph 65 and the case-law cited).

112    In those circumstances, review by the General Court must be confined to the question whether the institution concerned remained within reasonable limits and did not use its power in a manifestly incorrect way (see judgment of 23 November 1999, Sabbioni v Commission, T‑129/98, EU:T:1999:295, paragraph 66 and the case-law cited).

113    In addition, it is clear from the case-law that there is no misuse of powers unless there is objective, relevant and consistent evidence which makes it possible to establish that the contested act pursued an aim other than that ascribed to it by the applicable provisions and that, provided that a decision has not been judged to be contrary to the interests of the service, there can be no question of any misuse of power (see judgment of 23 November 1999, Sabbioni v Commission, T‑129/98, EU:T:1999:295, paragraph 67 and the case-law cited).

114    In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged (see order of 19 December 2013, da Silva Tenreiro v Commission, T‑32/13 P, EU:T:2013:721, paragraph 32 and the case-law cited).

115    Thus, the overall assessment of evidence of misuse of powers cannot be based on mere assertions, evidence that is insufficiently clear or is neither objective nor relevant (order of 19 December 2013, da Silva Tenreiro v Commission, T‑32/13 P, EU:T:2013:721, paragraph 33).

116    It is in the light of the principles set out above that it is necessary to examine the arguments raised by the applicant concerning the contested decisions, alleging a misuse of power.

117    In the present case, it must be recalled that the decision of 7 April 2010, as confirmed by the decision of 30 April 2010, made provision for the applicant’s redeployment from the post of Senior Legal Advisor/Legal Counsel, which she occupied at the main headquarters of the EUPM in Sarajevo, to the post of Criminal Justice Advisor at the Banja Luka regional office of the EUPM.

118    In accordance with the conclusions reached in relation to the first plea in law, it is clear, first, that the objective pursued by the contested decisions, that is to say, meeting the need for prosecution advice to be made available at the Banja Luka regional office, corresponded to the objective set out in Article 2(1) of Decision 2002/201 and, secondly, that such an objective was intended to be achieved by means of the measure at issue.

119    Therefore, the applicant has not demonstrated that, by adopting the contested decisions, the Head of the EUPM was principally pursuing an aim other than that of helping the competent law enforcement agencies of Bosnia and Herzegovina in the fight against organised crime and corruption.

120    That conclusion is not called into question by the applicant’s arguments relating to the service allegedly not having any interest in filling the Banja Luka post, the claim that the contested decisions were adopted with the sole aim of harassing her, or the alleged punitive nature of the decision of 7 April 2010.

(1)    The existence of the interests of the service

121    In that regard, it must be noted that the applicant’s argument in support of her claim that there was a misuse of power allegedly committed by the Head of the EUPM at the time of her redeployment is that there was no real need to deploy a prosecutor urgently to Banja Luka.

122    The evidence which she provides in support of that argument relates, first, to the existence of a call for applications for the post of Criminal Justice Advisor in Banja Luka which was still ongoing on the date of her redeployment and, secondly, to the procedure launched immediately after her redeployment in order to recruit a new Senior Legal Advisor/Legal Counsel in Sarajevo.

123    In addition, in the presentation of the facts and in support of the second plea in law alleging a failure to state sufficient reasons, the applicant stresses that it was clear from her correspondence with the Deputy Head of the EUPM, with her supervisor and with the head of the Banja Luka regional office, first, that the Head of the EUPM took the decision to redeploy her in any other post available in the mission without there being any actual need and, secondly, that there was no need for a prosecutor in Banja Luka.

124    In the first place, the existence of an ongoing selection procedure for the post of Criminal Justice Advisor in Banja Luka only confirms the vacancy of that post and the need to fill it. Waiting until the end of that procedure might not be in the interests of the service and could meet an operational need, such as the one relied on in the decision of 7 April 2010.

125    Moreover, on the date of the decision of 7 April 2010, the selection procedure which had been launched on 2 March 2010 in order to fill the post of Criminal Justice Expert (Prosecutor or IPO) at the Banja Luka regional office had not yielded any results. It is clear from the documents disclosed by the Council after the hearing that both candidates for that post were chosen for other posts with the EUPM, in accordance with the priority indicated in their application forms.

126    In addition, it is clear from the Council’s written reply to the questions raised at the hearing and from the documents which they disclosed after the hearing that, at the material time, the EUPM was facing a staff shortage and that the Head of the EUPM, on a number of occasions, had to take appropriate measures in order to attain the objective laid down in Article 2(1) of Decision 2002/201 by launching a call for applications.

127    More particularly, it is clear from the final report of 21 April 2010, drafted by the Head of the EUPM for the attention of the Civilian Operation Commander, that the selection procedure which had been launched with the call for applications sent to the Member States on 2 March 2010 in order to fill 34 vacant posts within the EUPM, which also included the post of Criminal Justice Expert (Prosecutor or IPO) at the Banja Luka regional office, had resulted in the selection of only 26 candidates and that three other posts ‘were subject to extension or other operational decisions’. In that context, there is no reason to conclude that the decision to redeploy the applicant was taken due to circumstances other than those that can be deduced from that final report and the selection report for that post, that is to say, the lack of eligible candidates for the Banja Luka post.

128    It is true that the applicant submitted an exchange of emails with the Head of the Policy Unit of the EUPM, who was her supervisor, and with the head of the Banja Luka regional office. However, it is clear from the supervisor’s reply to the applicant’s email of 7 April 2010 only that it was the Head of the EUPM who had taken the redeployment decision and that the posts available at the EUPM in Bosnia and Herzegovina were in Banja Luka, Mostar and Tuzla. Similarly, it is clear from the reply from the head of the Banja Luka regional office to the applicant’s email of 8 April 2010 only that he had not asked for ‘another prosecutor’ and that he did not urgently need her presence in Banja Luka.

129    First, although the applicant claims that the Head of the EUPM had asked the Deputy Head about the situation relating to the available posts in the EUPM before redeploying her, she has not produced any evidence to that effect. Moreover, the fact that the Head of the EUPM, before taking the redeployment decision, asked about the situation relating to the posts available in the mission is not such as to invalidate his concern for the interests of the service. In any event, the Head of the Policy Unit of the EUPM did not indicate in his response to the applicant’s email of 7 April 2010 that the Head of the EUPM asked him to present that situation before he took his decision. He merely confirmed information which he had already communicated orally to the applicant with regard to the posts available in the mission.

130    Secondly, the opinion of the head of the Banja Luka regional office, expressed in his reply to the applicant’s email of 8 April 2010, regarding the lack of any urgent need for her presence, is not such as to invalidate the assessment of the Head of the EUPM regarding the need to fill the post at that regional office. In that regard, it is important to place that reply in its factual context, determined by certain logistical difficulties relating to the move which the applicant had raised in that email. Thirdly, contrary to what the applicant claims, it is not clear from that reply that there was no need to have a prosecutor available in Banja Luka. The statement of the head of the Banja Luka regional office that he had not asked for ‘another prosecutor’, corroborated by the existence of an ongoing procedure to fill such a post, leads to the inference that there was indeed need for a prosecutor.

131    In the second place, the launch, immediately after the applicant’s departure, of a procedure for the post which she had filled in Sarajevo merely demonstrates that it was necessary that that post be filled following her redeployment. That situation is not such as to invalidate the assessment of the Head of the EUPM regarding the need to give priority, at the time of the applicant’s redeployment, to filling the post of Criminal Justice Advisor in Banja Luka rather than that of Senior Legal Advisor/Legal Counsel in Sarajevo, in that that assessment came within his discretion.

132    It follows from all of the foregoing that the evidence presented by the applicant, although objective and consistent, is not sufficient to establish that there was a misuse of power on the part of the Head of the EUPM when the decision of 7 April 2010 was adopted.

(2)    The existence of evidence of a context of psychological harassment

133     According to the applicant, as stated in paragraph 103 above, the decision of 7 April 2010 had no objective other than to harass her psychologically and to offend her as part of a series of acts of harassment. Those acts included, in addition to the redeployment and ‘downgrading’ imposed by the contested decisions, other acts, either before or after those decisions, which corroborate the context of harassment. Thus, in support of the allegation of harassment, the applicant cites, as evidence before the contested decisions, her exclusion from the main activities of the EUPM during her secondment and, as evidence after those decisions, restrictions on telephone access, a very aggressive request to clear her office and unjustified difficulties in taking leave.

134    In that regard, in the first place, it must be pointed out, as the Council did, that the applicant’s claim relating to her alleged ‘downgrading’ is not based on either fact or law. Her redeployment in April 2010 from Sarajevo to Banja Luka did not in any way change her administrative status, or her remuneration, or her allowances. The applicant’s arguments concerning the less prestigious and less comfortable nature of the new duties which she had to fulfil in the Banja Luka regional office, compared with those which were the basis of her secondment to Sarajevo, cannot be taken into account in order to classify her redeployment as a ‘downgrading’, in the light of the CFSP objectives pursued by the EUPM, that is to say, helping the competent law enforcement agencies of Bosnia and Herzegovina in the fight against organised crime and corruption.

135    In the second place, with regard to the restrictions on telephone access and the request to clear the office, it must be stated at the outset that the Council acknowledges that this is accurate. However, it contends that it is a current practice in all the administrations, and in particular in a police mission, for officials leaving a post to have restricted access to a fixed telephone and to be requested to take their belongings with them before taking up their new position, without those measures giving rise to any element of harassment or offence.

136    It is clear from the email exchanges adduced by the applicant and annexed to the application that she was only asked to clear her office in Sarajevo on 28 May 2010. That request was made as a result of the additional information requested by the applicant on the same day, after she received the certification form, entitled ‘Certification of removal of private possessions’, which she had to sign. It is true that the email received on 28 May 2010 at 16:18 from Mr R., Head of Administration and Support Services, may be regarded as very urgent in that it required the applicant to clear her office that same day, at the latest by 16:30, without any possibility of an extension, and to drop off the keys. However, that email is the last of a series of other emails containing explanations, both with regard to that certification and with regard to the need to drop off the keys. In her reply to the request from Mr Z., the Chief of General Support Services, to drop off the keys, at the latest at the end of that day’s programme, the applicant claimed only that she did not know that there was deadline for clearing her office.

137    In addition, it is clear from the email of 23 April 2010 from the Deputy Head of the EUPM that on 26 April 2010 the applicant was due to present herself at the Banja Luka regional office, that on 27 and 28 April 2010 she was due to present herself at the office of the Deputy Head in Sarajevo to discuss a case, and that on 29 April to 11 May 2010 she was due to be on leave. However, it is clear from her email of 27 April 2010 sent to the head of the Banja Luka regional office and from the email from Mr S. of the EUPM Personnel Office of 11 May 2010 that she asked for sick leave for the period from 26 April 2010 to 15 May 2010, followed by annual leave from 17 May 2010 to 24 May 2010.

138    In those circumstances, there is no reason to consider that the request that she clear her office in Sarajevo, made on 28 May 2010, that is to say, 32 days after the date on which her redeployment was due to take effect and four days after her return from leave, was abusive or constituted harassment.

139    In the third place, with regard to the alleged difficulties which the applicant had to contend with in order to obtain authorisation for leave, it is clear from the documents annexed to the application that she had actually failed to provide in good time the leave requests or the relevant medical certificates in support of those requests. The applicant does not claim that her correspondents’ claims relating to the absences referred to in the email exchanges concerning her leave were incorrect.

140    In the fourth place, with regard to her exclusion from the main activities of the EUPM during her secondment, it must be stated that, although the applicant lists a number of situations relating to her exclusion from daily morning meetings or discussions connected with the refocused mandate, the restrictions imposed on travel to the headquarters in Brussels (Belgium) or on participation in training sessions, she does not provide any evidence in that respect.

141    In the light of the foregoing, it must be found that the applicant has failed to demonstrate that there was a context of harassment.

(3)    The punitive nature of the decision of 7 April 2010

142    In the statement of facts, the applicant claims that the decision of 7 April 2010 was taken after she, in collaboration with another colleague, Ms C., a member of the temporary staff of the EUPM, submitted, by letter of 17 March 2010, a list of the irregularities which they had detected relating to the management of the EUPM, and which was followed by an enquiry (‘the letter of 17 March 2010’). That argument seeks to establish that the Head of the EUPM used his powers to redeploy the applicant in order to ‘punish’ her for having reported irregularities within the mission.

143    Since that argument is not entirely irrelevant, it must be analysed from the point of view of a possible misuse of powers. Furthermore, it is connected with the applicant’s argument relating to the ‘downgrading’ imposed by the contested decisions.

144    In support of the causal link between the letter of 17 March 2010 and her redeployment, the applicant states that, after the head of the EUPM took the decision of 7 April 2010, he also dismissed her colleague, Ms C., by decision of 26 April 2010, without notice.

145    It must be stated that both the existence and the content of the letter of 17 March 2010, and the subsequent enquiry, are confirmed by the emails exchanged between 7 and 20 June 2010 between the applicant and the Chief Advisor to SIPA.

146    In addition, it is clear from the European Ombudsman’s decision of 4 June 2015 concerning the end of Ms C.’s contract of employment as legal advisor for the EUPM in Bosnia and Herzegovina (‘the Ombudsman’s decision’) that Ms C.’s contract ended as a result of the letter of 17 March 2010 being sent.

147    Nevertheless, despite their chronology and the fact that the Ombudsman’s decision made a finding of maladministration within the EUPM, those elements are not a sufficient basis for concluding that the letter of 17 March 2010 was the decisive reason for the applicant’s redeployment.

148    As with the Ombudsman’s finding in the case of Ms C., it is indeed important to state that the fact that the decision of 7 April 2010 was taken 21 days after the letter of 17 March 2010 was sent could be interpreted as a ‘punishment’ of the applicant for the criticisms made of the management of the EUPM.

149    However, the inference of a ‘punishment’, imposed on the applicant as a result of the criticisms which she had made of the management of the EUPM, is unlikely. First, as has already been stated in paragraphs 125 and 127 above, the vacancy for the post of Criminal Justice Expert (Prosecutor or IPO) at the Banja Luka regional office was certain at least on the date when the call for applications had been sent to the Member States on 2 March 2010, that is to say, 15 days before the letter of 17 March 2010 was sent. Secondly, it is only after it was realised that the selection procedure had not resulted in that post being filled that the decision of 7 April 2010 was taken. As a result, nothing leads to the conclusion that the decision to redeploy the applicant was taken due to circumstances other than the interests of the service.

150    In addition, it must be recalled that, as was stated in paragraph 134 above, the redeployment of the applicant in April 2010 from Sarajevo to Banja Luka did not in any way change either her administrative status, or her remuneration, or her allowances.

151    Having regard to the foregoing, the third and fifth pleas in law must be rejected.

(d)    The fourth plea in law: manifest error of assessment

152    The applicant states that the decision of 7 April 2010 is vitiated by a manifest error of assessment, in that, first, it was not necessary to deploy a prosecutor to Banja Luka urgently and, secondly, there was a continuing need to have a Chief of Legal Office in Sarajevo.

153    The Council disputes the applicant’s arguments.

154    It must be observed at the outset that, contrary to what the Council maintained at the hearing, by this plea the applicant does not only dispute the operational aspect of the decision of 7 April 2010 relating to the assessment of the Head of the EUPM of the need to prioritise filling the vacant post at the Banja Luka regional office by redeploying a staff member occupying another post within the EUPM, but also the factual circumstances which had determined her redeployment to that post.

155    In that regard, although, for the operational aspect of the decision of 7 April 2010, referred to in paragraph 154 above, the jurisdiction of the EU Courts is excluded under Article 275 TFEU, review by the General Court is nevertheless permitted with regard to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power at the time in connection with the redeployment measure. Since the EU Courts may not substitute their assessment of the facts and circumstances justifying the adoption of such measures with that of the head of a mission, the review carried out by the General Court is limited, and it applies, especially, to the assessment of the considerations of appropriateness on which such measures were based (see, to that effect and by analogy, judgment of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 36 and the case-law cited).

156    Thus, as was stated in paragraph 111 above, the Head of the EUPM had a broad discretion with regard to the factors to be taken into consideration for the purposes of adopting measures for the redeployment of staff at theatre level (see, to that effect, appeal judgment, paragraph 69). That broad discretion does not, however, preclude the EU Courts from determining, as part of the review of lawfulness, the accuracy of the evidence relied upon by the Head of the EUPM (see, to that effect and by analogy, judgment of 22 April 2015, Tomana and Others v Council and Commission, T‑190/12, EU:T:2015:222, paragraph 216).

157    The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires in particular that the EU Courts are to ensure that a decision affecting the person concerned individually is taken on a sufficiently solid factual basis. That entails a verification of the facts underlying that decision with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons are substantiated.

158    In the present case, the applicant claims, in support of her plea alleging a manifest error of assessment, in the first place, that on the date of her redeployment a recruitment procedure was ongoing for the vacant post at the Banja Luka regional office, that a number of applications had been submitted and that, after her departure, no staff member had been deployed to that post, which, she claims, demonstrates that it was neither necessary nor, a fortiori, urgent that that post be filled.

159    As has already been stated in paragraphs 125 and 127 above, on the date of the decision of 7 April 2010, the selection procedure which had been launched on 2 March 2010 in order to fill the post of Criminal Justice Expert (Prosecutor or IPO) at the Banja Luka regional office had not been successful, and it was in a context of a lack of eligible candidates for that post that the decision to redeploy the applicant was taken.

160    As for the situation regarding the Banja Luka post after the applicant’s departure, it is clear from the Council’s reply to the General Court’s questions at the hearing and the annexes to that reply that a number of calls for applications were sent to the Member States with a view to filling that post well in advance of the end date of the applicant’s secondment on 31 December 2010. Thus, a first call, which mentioned in the description that the date of availability of the post was 31 December 2010, was sent on 14 October 2010 with a deadline of 3 November 2010. It is also clear from those annexes that, since no application satisfied the selection criteria, the post was included in the call for applications launched on 3 February 2011, with a deadline for submitting applications set for 25 February 2011 and an indication that the post was to be filled ‘as soon as possible’, and then in the call for applications launched on 21 November 2011, with a deadline for submitting the applications set for 2 December 2011.

161    In those circumstances, the applicant’s claim relating to the lack of any real need to fill the Banja Luka post at the time of her redeployment is devoid of any factual basis.

162    The applicant claims, in the second place, that it was still necessary to have a Chief of Legal Office in Sarajevo, as was clear from the publication of a vacancy notice after her redeployment.

163    It is clear from the Council’s reply to the General Court’s questions at the hearing and from the annexes to that reply that the post which the applicant had occupied in Sarajevo was included in the joint call for applications launched on 31 May 2010, with a deadline set for 18 June 2010, relating to a total of 20 vacant posts within the EUPM. In those circumstances, nothing leads to the conclusion that the vacancy of that post is not in line with the EUPM’s current practice of filling posts as soon as they become vacant.

164    It follows that the fourth plea in law must be rejected.

165    In the light of all the foregoing considerations, the action for annulment must be dismissed in its entirety.

C.      The application for damages

166    The applicant claims that the EUPM’s unlawful conduct caused her to suffer harm. She claims, first, that she suffered harm to her health and to her integrity as a result of the redeployment and the ‘downgrading’ imposed by the contested decisions, as was indicated in the medical opinion provided by the applicant, annexed to the application and, secondly, that the psychological harassment still continues as a result of the permanent effects of the redeployment and ‘downgrading’. According to the applicant, the harm is linked to the actions and the unlawful conduct of the EUPM, which includes the psychological harassment referred to in paragraph 103 above. There is a causal link between the conduct and the harm suffered, in the absence of any other circumstances which could have caused harm to the applicant. Since it is very difficult to quantify the damages in the present case, the applicant claims that they must be assessed ex æquo et bono and that they amount to EUR 30 000.

167    With regard to the harm caused to her health, the applicant makes it clear that this is not being advanced as an immediate and direct consequence of her redeployment, but rather as harm caused by acts of harassment which she allegedly suffered within the EUPM, which had started before her redeployment and were followed by numerous other episodes.

168    In her observations on the consequences to be drawn from the appeal judgment, the applicant adds that an award of damages remains the only way to remedy the illegality of the decision of 7 April 2010. In those circumstances, she submits that the total amounts to EUR 38 000, including the mission allowance which she did not receive due to the leave she had taken as a result of the illness caused by the psychological harassment which she had suffered.

169    At the outset, it must be stated that the applicant’s claim for compensation is based on the rules on the non-contractual liability of the European Union as a result of the alleged wrongful behaviour of its bodies. More specifically, that claim is based both on the alleged illegality of the contested decisions and on alleged acts of harassment which the applicant suffered within the EUPM, in addition to those decisions.

170    In that regard, it must be recalled that, according to settled case-law, for an EU institution to incur non-contractual liability for unlawful conduct a number of conditions must be satisfied: the institutions’ conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (see judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 42 and the case-law cited).

171    If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for establishing non-contractual liability (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 14).

172    In the present case, since the claim for annulment directed against the contested decisions has been dismissed, the claim for compensation based on the illegality of those decisions must also be dismissed. With regard to the claim for compensation made by the applicant based on psychological harassment, it must be noted that, in paragraph 141 above, following the examination of the plea alleging a misuse of powers raised in support of the action for annulment, it was concluded that there was no context of harassment. Therefore, it must be held that, since the Council, or more particularly the Head of the EUPM, cannot be reproached for any unlawful conduct, the Council cannot be held to have incurred non contractual liability.

173    It follows from all of the foregoing that, without it being necessary to examine the plea of inadmissibility concerning the legality of the new claim for damages made in the reply, put forward by the Council in defence, the claim for damages must be dismissed and therefore the action as a whole must be dismissed.

 VI.      Costs

174    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, she must be ordered to pay the costs in accordance with the form of order sought by the Council.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders H to pay the costs.

Delivered in open court in Luxembourg on 11 April 2018.

Table of contents

I. Background to the dispute

II. Procedure before the General Court and the Court of Justice prior to referral

III. Procedure following referral

IV. Forms of order sought

V. Law

A. Preliminary observations

B. The claim for annulment

1. Admissibility of certain arguments raised in the reply

2. Substance

(a) First plea in law: infringement of the provisions of Decision 2009/906

(1) The first part, alleging that the Head of the EUPM lacked the power to adopt decisions relating to the redeployment of staff

(2) The second part, alleging that the Member State of Origin was not consulted before the redeployment decision was taken

(b) Second plea in law: failure to state sufficient reasons

(c) Third and fifth pleas in law: respectively, a misuse of powers and psychological harassment

(1) The existence of the interests of the service

(2) The existence of evidence of a context of psychological harassment

(3) The punitive nature of the decision of 7 April 2010

(d) The fourth plea in law: manifest error of assessment

C. The application for damages

VI. Costs

*      Language of the case: English.

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