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Corte di giustizia UEsentenza

Corte di giustizia UE n. 1080/2011

ECLI:EU:F:2011:68
Testo integrale del provvedimento

Testo integrale del provvedimento

62011FO0005(01)_EN

[OSCURATO:PERSONA] part [OSCURATO:PERSONA]5/11 R and F-15/11 R, APPLICATIONS under Articles 278 TFEU and 157 EA, and also under Article 279 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, [OSCURATO:PERSONA], a member of the contract staff of the [OSCURATO:PERSONA] residing in Kabul (Afghanistan), represented by B. Theeuwes and F. Pons, lawyers, applicant, v [OSCURATO:PERSONA], represented by G. Berscheid and B. Eggers, acting as Agents, defendant in [OSCURATO:PERSONA]5/11 R, and [OSCURATO:PERSONA] (EEAS), represented by H. Cameron and G.-J. van Hegelsom, acting as Agents, defendant in [OSCURATO:PERSONA]15/11 R,

[OSCURATO:PERSONA] TRIBUNAL

makes the following

[OSCURATO:PERSONA]

1. By application against the [OSCURATO:PERSONA], received at the Registry of the Tribunal by email on 21 [OSCURATO:PERSONA] 2011 (the original being lodged on 31 [OSCURATO:PERSONA] 2011) and registered as [OSCURATO:PERSONA]5/11 R (‘the first application for interim relief’), [OSCURATO:PERSONA] seeks, inter alia, suspension of the decision of 11 [OSCURATO:PERSONA] 2011 by which the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in Kabul (Afghanistan) (‘the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’) asked him to move from the hotel in which he was staying temporarily and into the secure residential compound recently built for [OSCURATO:PERSONA] staff (‘the [OSCURATO:PERSONA] compound’).

2. By application against the [OSCURATO:PERSONA] (EEAS), received at the Registry of the Tribunal by email on 18 February 2011 (the original being lodged on 24 February 2011) and registered as [OSCURATO:PERSONA]15/11 R (‘the second application for interim relief), [OSCURATO:PERSONA] submits the same claims as those submitted in the first application for interim relief.

Legal context

3. On 26 July 2010 the Council of the [OSCURATO:PERSONA] adopted Decision 2010/427/EU establishing the organisation and functioning of the [OSCURATO:PERSONA] (OJ 2010 L 201, p. 30).

4. Article 1b of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’), as amended by [OSCURATO:PERSONA] (EU, Euratom) No 1080/2010 of the [OSCURATO:PERSONA] and of the Council of 24 November 2010 (OJ 2010 L 311, p. 1), reads as follows: ‘Save as otherwise provided in these [OSCURATO:PERSONA], (a) the [EEAS], (b) the [OSCURATO:PERSONA] and [OSCURATO:PERSONA], (c) the [OSCURATO:PERSONA] of the Regions, (d) the [OSCURATO:PERSONA], and (e) the [OSCURATO:PERSONA] shall, for the purposes of these [OSCURATO:PERSONA], be treated as institutions of the [OSCURATO:PERSONA].’

5. Annex X to the [OSCURATO:PERSONA] lays down the special and exceptional provisions applicable to officials serving in a third country.

Article 5(1) of that annex provides that if the institution provides the official with accommodation which corresponds to the level of his duties and to the composition of his dependent family, he is required to reside in it.

By virtue of Article 118 of the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], as amended by [OSCURATO:PERSONA] 1080/2010, Annex X to the [OSCURATO:PERSONA] applies by analogy to contract staff serving in third countries.

6. On 22 December 2010 the [OSCURATO:PERSONA] adopted Decision SEC (2010) 1622 on the ‘[OSCURATO:PERSONA] of Appointing/[OSCURATO:PERSONA] powers for [OSCURATO:PERSONA] staff serving in Delegations and conditions for the acceptance by the [OSCURATO:PERSONA] of the delegation of such powers from the EEAS’, which was published in [OSCURATO:PERSONA] 02-2011 of 20 [OSCURATO:PERSONA] 2011.

Background to the dispute

7. [OSCURATO:PERSONA] 2010 the applicant was recruited as a contract agent in [OSCURATO:PERSONA] IV within the [OSCURATO:PERSONA] in Kabul.

8. Upon his arrival in Kabul in [OSCURATO:PERSONA] 2010, the applicant stayed temporarily in the [OSCURATO:PERSONA], which also accommodated a number of other members of staff from the [OSCURATO:PERSONA] pending completion of works on the construction and renovation of a secure compound designed to house offices and residential accommodation for the [OSCURATO:PERSONA].

9. [OSCURATO:PERSONA] 2010 some of the [OSCURATO:PERSONA] staff moved into the [OSCURATO:PERSONA] compound.

10. On 1 December 2010 the [OSCURATO:PERSONA]-General for [OSCURATO:PERSONA] and [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] sent the applicant an email concerning the impact of the creation of the EEAS on his function.

The email informed the applicant that he would remain attached to the [OSCURATO:PERSONA], since the function to which he was currently attached was not amongst those to be transferred to the EEAS.

11. On 11 [OSCURATO:PERSONA] 2011 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] staff by email that works to connect the [OSCURATO:PERSONA] compound to three phase city power had been completed and that this therefore fulfilled ‘the main recommendation set out by [the institution’s] HQ with regards to works required in the [[OSCURATO:PERSONA]] compound’.

In that email the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] also asked, first, members of staff who had moved temporarily out of the [OSCURATO:PERSONA] compound and into the [OSCURATO:PERSONA], because of power cuts that had recently occurred in the [OSCURATO:PERSONA] compound, to move back to their apartments the next day and, secondly, the applicant and one of his colleagues, who had not lived in the compound before, to move there before 14 [OSCURATO:PERSONA] 2011. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] stated that the only persons exempt from the obligation to move into the [OSCURATO:PERSONA] compound were those who were leaving the [OSCURATO:PERSONA] in the next few weeks.

It is the arrangements contained in that email concerning the applicant which are at the origin of the dispute.

12. On 14 [OSCURATO:PERSONA] 2011 the applicant moved into the accommodation that was allocated to him within the [OSCURATO:PERSONA] compound in order to comply with the instructions of his hierarchy.

13. On 15 [OSCURATO:PERSONA] 2011 the applicant sent an email to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] telling him in essence that he did not agree with the latter’s assessment of the situation as regards completion of the works on the [OSCURATO:PERSONA] compound and, in particular, compliance of the building with certain safety standards.

The applicant concluded by informing the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] that since the latter had rejected his suggestion that he approach the [OSCURATO:PERSONA]’s mediation service he felt obliged to seek legal redress.

14. In response to the applicant’s email of 15 [OSCURATO:PERSONA] 2011, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] had a one-to-one meeting with the applicant.

At that meeting the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] offered the applicant accommodation in the building which had housed his former residence, explaining that it was a new building and complied with all the security measures requested by the [OSCURATO:PERSONA]’s security cell.

The applicant turned down that offer, on the ground that the apartment which was being offered him was too close to the street.

15. On 18 [OSCURATO:PERSONA] 2011 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] sent a memorandum to the applicant in which he confirmed that, following the completion of the works, there was no longer any reason to justify the non-occupation of the apartments in the [OSCURATO:PERSONA] compound. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] none the less again offered the applicant the possibility, if he was uncomfortable about the apartment he had been allocated within the compound, of moving into the vacant apartment in the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s former residence.

16. On 21 [OSCURATO:PERSONA] 2011 the applicant lodged a complaint with the [OSCURATO:PERSONA] against the provisions of the email from the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] of 11 [OSCURATO:PERSONA] 2011 requesting him to move into the [OSCURATO:PERSONA] compound no later than 14 [OSCURATO:PERSONA] (‘the decision of 11 [OSCURATO:PERSONA] 2011’).

On the same day the applicant lodged the first application for interim relief.

17. By memorandum of 4 February 2011, the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] of the EEAS (‘the [OSCURATO:PERSONA]’) suggested to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] that, unless the landlord of the [OSCURATO:PERSONA] compound had corrected the problems in the meantime, he should go back on his decision of 11 [OSCURATO:PERSONA] 2011 and allow the applicant to move into the [OSCURATO:PERSONA] or into another hotel where his safety would be assured.

18. On 6 February 2011 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] replied to the [OSCURATO:PERSONA] by a memorandum in which, after explaining in detail the reasons which had led him to adopt the decision of 11 [OSCURATO:PERSONA] 2011, he informed him of the recent progress of work within the [OSCURATO:PERSONA] compound and of the measures he had taken and proposed to take in order to resolve the applicant’s case.

19. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] stated that one of his prime concerns as [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in Afghanistan was for the security of the staff and that the transfer of staff staying in the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] compound had been one of his priorities.

In fact, the [OSCURATO:PERSONA] was one of the locations in Kabul that was most under threat.

On 14 [OSCURATO:PERSONA] 2008 that hotel had been attacked by the Taliban, resulting in the death of several guests.

On other occasions one of the staff members of the [OSCURATO:PERSONA] had had a grenade fired through his bedroom window while he was in the office, and several other staff members had had rockets land close to them within the hotel grounds. [OSCURATO:PERSONA] had total bans on access by their staff to the hotel or only allowed their staff very restricted access to it.

20. As regards recent progress of works within the [OSCURATO:PERSONA] compound, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] stated that, on 18 [OSCURATO:PERSONA] 2011, experts from the [OSCURATO:PERSONA] in Afghanistan (‘EUPOL’) had inspected the electrical installations of the compound and their connection to the city grid and had reported that the work had been done to a good standard for Afghanistan with only some minor issues remaining to be resolved.

21. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] also informed the [OSCURATO:PERSONA] that he had offered the applicant accommodation in his former residence, an offer which the applicant had turned down.

He concluded that in such circumstances the only two possible options which seemed to exist in order to resolve the issue of the applicant’s accommodation were either to ask EUPOL whether the applicant could be housed in their residential compound or, in order to find a long-term solution, to recall the applicant on mission to Brussels (Belgium) until he could be transferred to another delegation.

22. On 7 February 2011 the contractor for the works within the [OSCURATO:PERSONA] compound informed the member of the [OSCURATO:PERSONA] staff responsible for the site that the works which had been requested with regard to electrical installations in the apartments had been carried out.

23. On 7 February 2011 also, in response to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], the [OSCURATO:PERSONA] suggested that since, first, there was no apartment vacant within the EUPOL compound, secondly, there were security concerns regarding hotels in Kabul and, lastly, works had recently been carried out within the [OSCURATO:PERSONA] compound, the applicant should be able to choose another apartment within the [OSCURATO:PERSONA] compound among those in which works, assessed by EUPOL as meeting the appropriate standards, had just been carried out. [OSCURATO:PERSONA] also suggested an alternative solution, that the applicant could move, as early as the following day, into the [OSCURATO:PERSONA] residential compound, where accommodation was available.

24. By memorandum of 8 February 2011, Mr V., on behalf of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], offered the applicant a choice of three vacant apartments located within the [OSCURATO:PERSONA] compound, and he was requested to contact the administration section to arrange visits, and also the option of moving immediately to the [OSCURATO:PERSONA] compound, which he could visit that very day.

25. By email sent the same day to Mr V., the applicant replied that he could agree to the proposals that had been made to him provided it was confirmed (i) that the accommodation offered him in either compound was a permanent solution and (ii) that the accommodation had been verified by a qualified expert and was considered safe and in line with the applicable standards, as shown by a certificate of an independent recognised agency in the case of the [OSCURATO:PERSONA] compound, and by a statement of compliance or a verification report drawn up before the compound was occupied in the case of the [OSCURATO:PERSONA] compound.

The applicant added that as soon as a suitable solution was found he would send a proposal for a written agreement, an agreement which would enable him to terminate his claim before the [OSCURATO:PERSONA] and his action before the [OSCURATO:PERSONA].

The applicant further added that an agreement would also need to be found as regards compensation for the costs he had incurred, including his legal costs.

26. By letter of 9 February 2011, the [OSCURATO:PERSONA] informed the applicant that his complaint should have been made against the EEAS, and that therefore it had registered his claim ‘on behalf of the EEAS’. [OSCURATO:PERSONA] also informed the applicant that he would receive a reasoned decision from the EEAS within four months of the date of submission of his complaint, and that the absence of a reply by the end of that period would be deemed to constitute implicit rejection of the complaint, against which he could appeal under Article 91 of the [OSCURATO:PERSONA].

27. By email sent on 24 February 2011 the applicant informed Mr

V. that, even if the [OSCURATO:PERSONA] compound appeared not to pose any problem in relation to the electricity and safety issues, moving there was not a feasible alternative since one of the two rooms proposed was affected by damp and the second was too small, being less than 18 square metres.

As regards the [OSCURATO:PERSONA] compound, the applicant reiterated his request to receive an independent expert report.

In that connection, he expressed the opinion, firstly, that the report by EUPOL could not be regarded either as being thorough or as having been drawn up on an independent basis and, secondly, that the declaration by the contractor responsible for the works within the [OSCURATO:PERSONA] compound as to the completion of the electrical works did not come from an independent source either.

Procedure and forms of order sought

28. By application against the [OSCURATO:PERSONA] received at the Registry of the Tribunal by email on 21 [OSCURATO:PERSONA] 2011 (the original being lodged on 31 [OSCURATO:PERSONA] 2011), the applicant seeks, inter alia, annulment of the contested decision.

That application was registered at the Registry of the Tribunal as [OSCURATO:PERSONA]5/11.

29. In the first application for interim relief, the applicant claims that the [OSCURATO:PERSONA] of the Tribunal should: – suspend the decision of 11 [OSCURATO:PERSONA] 2011; – allow him to maintain his residence in the [OSCURATO:PERSONA] until such time as the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] designates permanent accommodation for him located: – either in the [OSCURATO:PERSONA] compound, upon approval of the accommodation by a qualified independent expert, to be appointed by the [OSCURATO:PERSONA] to verify that the recommendations of the [OSCURATO:PERSONA] expert report have been implemented and that the accommodation is declared safe, in accordance with the [OSCURATO:PERSONA] norms as set out in the aforementioned report; – or in the vicinity of the [OSCURATO:PERSONA] compound and upon approval of the accommodation by a qualified independent expert, to be appointed by the [OSCURATO:PERSONA] to verify that the recommendations of the [OSCURATO:PERSONA] expert report have been implemented and that the accommodation is declared safe, in accordance with the [OSCURATO:PERSONA] norms as set out in the aforementioned report, and upon approval by the [OSCURATO:PERSONA] to ensure the safety of the location of the accommodation; – order the [OSCURATO:PERSONA] to bear the costs of the expert report and all the temporary accommodation costs; – grant the application for interim measures even before the [OSCURATO:PERSONA] has submitted its observations, pursuant to Article 104(3) of the Rules of Procedure of the Tribunal, in view of the immediate danger for the applicant’s safety and physical integrity.

30. [OSCURATO:PERSONA], which submitted its written observations on 8 February 2011, contends that the Tribunal should dismiss the first application for interim relief on the ground that the main action is manifestly inadmissible.

That action should have been brought not against the [OSCURATO:PERSONA] but against the EEAS, to which the powers of the [OSCURATO:PERSONA]’s appointing authority and its authority empowered to conclude contracts of employment have been delegated, in the case of the application of Article 5 of Annex X to the [OSCURATO:PERSONA].

31. On 17 February 2011 the applicant submitted a request that his name and those of his colleagues should be omitted from publications relating to the case.

That request was rejected so far as the applicant was concerned in the absence of ‘legitimate reasons’ within the meaning of Article 44(4) of the Rules of Procedure.

32. By application against the EEAS received at the Registry of the Tribunal by email on 18 February 2011 (the original being lodged on 24 February 2011) and registered as [OSCURATO:PERSONA]15/11, the applicant seeks, inter alia, annulment of the decision which is the subject of the second application for interim relief.

33. In the second application for interim relief, the applicant sets out the same claims as those submitted in the first application for interim relief but makes them against the EEAS.

34. On 8 April 2011 the EEAS submitted its observations on the second application for interim relief.

Whilst not disputing the admissibility of the main action registered on 18 February 2011, the EEAS contends that the second application for interim relief should be dismissed on the ground, inter alia, that the application for interim measures, and also the main action, had become devoid of purpose as a result of the various offers of accommodation that had been made to the applicant.

35. By order of 24 May 2011, the [OSCURATO:PERSONA] of the Tribunal, after hearing the parties, in view of the connection between the two applications for interim relief, ordered them to be joined for the purposes of the interim order, on the basis of Article 46(1) of the Rules of Procedure. [OSCURATO:PERSONA] claim seeking suspension of the decision of 11 [OSCURATO:PERSONA] 2011

36. In its applications for interim relief, the applicant seeks suspension of the decision of 11 [OSCURATO:PERSONA] 2011 instructing him to move into the apartment allocated to him within the secure compound built for [OSCURATO:PERSONA] staff.

37. It is apparent from the facts set out in paragraphs 14 and 15 of the present order that, at a meeting held between 15 and 18 [OSCURATO:PERSONA] 2011, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] offered the applicant accommodation in his former residence and that he repeated that offer of accommodation in a memorandum of 18 [OSCURATO:PERSONA] 2011.

Moreover, as stated in paragraph 24 of the present order, by memorandum of 8 February 2011, Mr V., on behalf of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], offered the applicant a choice of accommodation that was immediately available within the [OSCURATO:PERSONA] compound and within the compound of the [OSCURATO:PERSONA].

38. The memoranda of 18 [OSCURATO:PERSONA] and 8 February 2011 do not expressly state that their purpose is to revoke the decision of 11 [OSCURATO:PERSONA] 2011.

Nevertheless, they may be considered to implicitly revoke that decision since, first, by offering the applicant apartments other than the one which had initially been allocated to him they remove for the future the exclusive obligation that had been imposed on him to live in that apartment and, secondly, the exchange of letters between the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (see paragraphs 17 to 21 and 23 above) show that the latter intended to reverse the instruction given in the decision of 11 [OSCURATO:PERSONA] 2011.

39. Since the decision of 11 [OSCURATO:PERSONA] 2011 has exhausted its effects during the proceedings in the present case, the [OSCURATO:PERSONA] of the Tribunal finds that there is no longer any need to adjudicate on the claim for suspension of that decision.

40. That finding cannot be invalidated by the fact that the applicant turned down, or accepted only under certain conditions, the offers of alternative accommodation which were made to him.

It is clear from Article 5(1) of Annex X to the [OSCURATO:PERSONA] that the obligation incumbent on a staff member to reside in the accommodation which is provided for him is not conditional upon his agreement.

In particular, in circumstances where the obligation is formulated by the competent authority in terms of choosing between two or more specified places of accommodation, it is not open to the staff member to unilaterally attach to the options available conditions or variations desired by him.

41. Consequently, the offers of alternative accommodation made to the applicant by the abovementioned memoranda of 18 [OSCURATO:PERSONA] and 8 February 2011 removed the initial, exclusive obligation contained in the decision of 11 [OSCURATO:PERSONA] 2011 to reside in the apartment allocated within the [OSCURATO:PERSONA] compound, without his agreement being necessary in order for that obligation to be removed for the future.

Furthermore, while the applicant did finally remain in the accommodation which had been allocated to him at the beginning, despite the various offers subsequently made to him, this possibility was implicitly included in the limited choice offered to the applicant by the authority empowered to conclude contracts of employment in place of the original, more restricted obligation placed on him during the period from 11 [OSCURATO:PERSONA] 2011 until the first offer of alternative accommodation was made.

42. It follows that there is no longer any need to adjudicate on the claim for suspension of the decision of 11 [OSCURATO:PERSONA] 2011, without prejudice to the decision that will be taken by the Tribunal in the main action regarding the applicant’s interest in seeking annulment, with retrospective effect, of the contested decision in respect of the period during which it produced its effects.

The claims for the applicant to be allowed to maintain his residence at the [OSCURATO:PERSONA] until the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] provides him with permanent accommodation, and for an order that the [OSCURATO:PERSONA] or the EEAS must bear the costs relating to such temporary accommodation

43. Since the applicant was offered a choice of permanent accommodation, there is no longer any need to adjudicate on these claims. In any event, such claims, since they ask the Tribunal to issue a direction to the administrative authority, must be declared inadmissible.

44. It is clear from the foregoing that the applications for interim relief should be dismissed, without there being any need to examine, in the context of the present order, the plea of inadmissibility raised by the [OSCURATO:PERSONA] against the first application for interim relief.

Costs

45. It should be noted that Article 86 of the Rules of Procedure provides that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings, which is to be construed as being the decision closing the main proceedings (order of the [OSCURATO:PERSONA] of the Tribunal of 14 July 2010 in [OSCURATO:PERSONA]41/10 R [OSCURATO:PERSONA] v EESC , paragraph 91).

46. It is therefore appropriate to reserve the costs. [OSCURATO:PERSONA] part On those grounds,

[OSCURATO:PERSONA] TRIBUNAL

hereby orders:

1. There is no need to adjudicate on the claim for suspension of the decision of 11 [OSCURATO:PERSONA] 2011 by which the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in Kabul (Afghanistan) asked [OSCURATO:PERSONA] to move from the hotel in which he was staying temporarily and into the secure residential compound recently built for [OSCURATO:PERSONA] staff.

2. The remainder of the claims of the applications for interim relief in [OSCURATO:PERSONA]5/11 R and F-15/11 R are rejected.

3. The costs are reserved. Luxembourg, 27 May 2011.

Anonimizzato ex art. 52 D.Lgs. 196/2003
62011FO0005(01)_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA]5/11 R and F-15/11 R, APPLICATIONS under Articles 278 TFEU and 157 EA, and also under Article 279 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, [OSCURATO:PERSONA], a member of the contract staff of the [OSCURATO:PERSONA] residing in Kabul (Afghanistan), represented by B. Theeuwes and F. Pons, lawyers, applicant, v [OSCURATO:PERSONA], represented by G. Berscheid and B. Eggers, acting as Agents, defendant in [OSCURATO:PERSONA]5/11 R, and [OSCURATO:PERSONA] (EEAS), represented by H. Cameron and G.-J. van Hegelsom, acting as Agents, defendant in [OSCURATO:PERSONA]15/11 R, [OSCURATO:PERSONA] TRIBUNAL makes the following [OSCURATO:PERSONA] 1. By application against the [OSCURATO:PERSONA], received at the Registry of the Tribunal by email on 21 [OSCURATO:PERSONA] 2011 (the original being lodged on 31 [OSCURATO:PERSONA] 2011) and registered as [OSCURATO:PERSONA]5/11 R (‘the first application for interim relief’), [OSCURATO:PERSONA] seeks, inter alia, suspension of the decision of 11 [OSCURATO:PERSONA] 2011 by which the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in Kabul (Afghanistan) (‘the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’) asked him to move from the hotel in which he was staying temporarily and into the secure residential compound recently built for [OSCURATO:PERSONA] staff (‘the [OSCURATO:PERSONA] compound’). 2. By application against the [OSCURATO:PERSONA] (EEAS), received at the Registry of the Tribunal by email on 18 February 2011 (the original being lodged on 24 February 2011) and registered as [OSCURATO:PERSONA]15/11 R (‘the second application for interim relief), [OSCURATO:PERSONA] submits the same claims as those submitted in the first application for interim relief. Legal context 3. On 26 July 2010 the Council of the [OSCURATO:PERSONA] adopted Decision 2010/427/EU establishing the organisation and functioning of the [OSCURATO:PERSONA] (OJ 2010 L 201, p. 30). 4. Article 1b of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’), as amended by [OSCURATO:PERSONA] (EU, Euratom) No 1080/2010 of the [OSCURATO:PERSONA] and of the Council of 24 November 2010 (OJ 2010 L 311, p. 1), reads as follows: ‘Save as otherwise provided in these [OSCURATO:PERSONA], (a) the [EEAS], (b) the [OSCURATO:PERSONA] and [OSCURATO:PERSONA], (c) the [OSCURATO:PERSONA] of the Regions, (d) the [OSCURATO:PERSONA], and (e) the [OSCURATO:PERSONA] shall, for the purposes of these [OSCURATO:PERSONA], be treated as institutions of the [OSCURATO:PERSONA].’ 5. Annex X to the [OSCURATO:PERSONA] lays down the special and exceptional provisions applicable to officials serving in a third country. Article 5(1) of that annex provides that if the institution provides the official with accommodation which corresponds to the level of his duties and to the composition of his dependent family, he is required to reside in it. By virtue of Article 118 of the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], as amended by [OSCURATO:PERSONA] 1080/2010, Annex X to the [OSCURATO:PERSONA] applies by analogy to contract staff serving in third countries. 6. On 22 December 2010 the [OSCURATO:PERSONA] adopted Decision SEC (2010) 1622 on the ‘[OSCURATO:PERSONA] of Appointing/[OSCURATO:PERSONA] powers for [OSCURATO:PERSONA] staff serving in Delegations and conditions for the acceptance by the [OSCURATO:PERSONA] of the delegation of such powers from the EEAS’, which was published in [OSCURATO:PERSONA] 02-2011 of 20 [OSCURATO:PERSONA] 2011. Background to the dispute 7. [OSCURATO:PERSONA] 2010 the applicant was recruited as a contract agent in [OSCURATO:PERSONA] IV within the [OSCURATO:PERSONA] in Kabul. 8. Upon his arrival in Kabul in [OSCURATO:PERSONA] 2010, the applicant stayed temporarily in the [OSCURATO:PERSONA], which also accommodated a number of other members of staff from the [OSCURATO:PERSONA] pending completion of works on the construction and renovation of a secure compound designed to house offices and residential accommodation for the [OSCURATO:PERSONA]. 9. [OSCURATO:PERSONA] 2010 some of the [OSCURATO:PERSONA] staff moved into the [OSCURATO:PERSONA] compound. 10. On 1 December 2010 the [OSCURATO:PERSONA]-General for [OSCURATO:PERSONA] and [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] sent the applicant an email concerning the impact of the creation of the EEAS on his function. The email informed the applicant that he would remain attached to the [OSCURATO:PERSONA], since the function to which he was currently attached was not amongst those to be transferred to the EEAS. 11. On 11 [OSCURATO:PERSONA] 2011 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] staff by email that works to connect the [OSCURATO:PERSONA] compound to three phase city power had been completed and that this therefore fulfilled ‘the main recommendation set out by [the institution’s] HQ with regards to works required in the [[OSCURATO:PERSONA]] compound’. In that email the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] also asked, first, members of staff who had moved temporarily out of the [OSCURATO:PERSONA] compound and into the [OSCURATO:PERSONA], because of power cuts that had recently occurred in the [OSCURATO:PERSONA] compound, to move back to their apartments the next day and, secondly, the applicant and one of his colleagues, who had not lived in the compound before, to move there before 14 [OSCURATO:PERSONA] 2011. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] stated that the only persons exempt from the obligation to move into the [OSCURATO:PERSONA] compound were those who were leaving the [OSCURATO:PERSONA] in the next few weeks. It is the arrangements contained in that email concerning the applicant which are at the origin of the dispute. 12. On 14 [OSCURATO:PERSONA] 2011 the applicant moved into the accommodation that was allocated to him within the [OSCURATO:PERSONA] compound in order to comply with the instructions of his hierarchy. 13. On 15 [OSCURATO:PERSONA] 2011 the applicant sent an email to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] telling him in essence that he did not agree with the latter’s assessment of the situation as regards completion of the works on the [OSCURATO:PERSONA] compound and, in particular, compliance of the building with certain safety standards. The applicant concluded by informing the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] that since the latter had rejected his suggestion that he approach the [OSCURATO:PERSONA]’s mediation service he felt obliged to seek legal redress. 14. In response to the applicant’s email of 15 [OSCURATO:PERSONA] 2011, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] had a one-to-one meeting with the applicant. At that meeting the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] offered the applicant accommodation in the building which had housed his former residence, explaining that it was a new building and complied with all the security measures requested by the [OSCURATO:PERSONA]’s security cell. The applicant turned down that offer, on the ground that the apartment which was being offered him was too close to the street. 15. On 18 [OSCURATO:PERSONA] 2011 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] sent a memorandum to the applicant in which he confirmed that, following the completion of the works, there was no longer any reason to justify the non-occupation of the apartments in the [OSCURATO:PERSONA] compound. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] none the less again offered the applicant the possibility, if he was uncomfortable about the apartment he had been allocated within the compound, of moving into the vacant apartment in the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s former residence. 16. On 21 [OSCURATO:PERSONA] 2011 the applicant lodged a complaint with the [OSCURATO:PERSONA] against the provisions of the email from the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] of 11 [OSCURATO:PERSONA] 2011 requesting him to move into the [OSCURATO:PERSONA] compound no later than 14 [OSCURATO:PERSONA] (‘the decision of 11 [OSCURATO:PERSONA] 2011’). On the same day the applicant lodged the first application for interim relief. 17. By memorandum of 4 February 2011, the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] of the EEAS (‘the [OSCURATO:PERSONA]’) suggested to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] that, unless the landlord of the [OSCURATO:PERSONA] compound had corrected the problems in the meantime, he should go back on his decision of 11 [OSCURATO:PERSONA] 2011 and allow the applicant to move into the [OSCURATO:PERSONA] or into another hotel where his safety would be assured. 18. On 6 February 2011 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] replied to the [OSCURATO:PERSONA] by a memorandum in which, after explaining in detail the reasons which had led him to adopt the decision of 11 [OSCURATO:PERSONA] 2011, he informed him of the recent progress of work within the [OSCURATO:PERSONA] compound and of the measures he had taken and proposed to take in order to resolve the applicant’s case. 19. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] stated that one of his prime concerns as [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in Afghanistan was for the security of the staff and that the transfer of staff staying in the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] compound had been one of his priorities. In fact, the [OSCURATO:PERSONA] was one of the locations in Kabul that was most under threat. On 14 [OSCURATO:PERSONA] 2008 that hotel had been attacked by the Taliban, resulting in the death of several guests. On other occasions one of the staff members of the [OSCURATO:PERSONA] had had a grenade fired through his bedroom window while he was in the office, and several other staff members had had rockets land close to them within the hotel grounds. [OSCURATO:PERSONA] had total bans on access by their staff to the hotel or only allowed their staff very restricted access to it. 20. As regards recent progress of works within the [OSCURATO:PERSONA] compound, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] stated that, on 18 [OSCURATO:PERSONA] 2011, experts from the [OSCURATO:PERSONA] in Afghanistan (‘EUPOL’) had inspected the electrical installations of the compound and their connection to the city grid and had reported that the work had been done to a good standard for Afghanistan with only some minor issues remaining to be resolved. 21. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] also informed the [OSCURATO:PERSONA] that he had offered the applicant accommodation in his former residence, an offer which the applicant had turned down. He concluded that in such circumstances the only two possible options which seemed to exist in order to resolve the issue of the applicant’s accommodation were either to ask EUPOL whether the applicant could be housed in their residential compound or, in order to find a long-term solution, to recall the applicant on mission to Brussels (Belgium) until he could be transferred to another delegation. 22. On 7 February 2011 the contractor for the works within the [OSCURATO:PERSONA] compound informed the member of the [OSCURATO:PERSONA] staff responsible for the site that the works which had been requested with regard to electrical installations in the apartments had been carried out. 23. On 7 February 2011 also, in response to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], the [OSCURATO:PERSONA] suggested that since, first, there was no apartment vacant within the EUPOL compound, secondly, there were security concerns regarding hotels in Kabul and, lastly, works had recently been carried out within the [OSCURATO:PERSONA] compound, the applicant should be able to choose another apartment within the [OSCURATO:PERSONA] compound among those in which works, assessed by EUPOL as meeting the appropriate standards, had just been carried out. [OSCURATO:PERSONA] also suggested an alternative solution, that the applicant could move, as early as the following day, into the [OSCURATO:PERSONA] residential compound, where accommodation was available. 24. By memorandum of 8 February 2011, Mr V., on behalf of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], offered the applicant a choice of three vacant apartments located within the [OSCURATO:PERSONA] compound, and he was requested to contact the administration section to arrange visits, and also the option of moving immediately to the [OSCURATO:PERSONA] compound, which he could visit that very day. 25. By email sent the same day to Mr V., the applicant replied that he could agree to the proposals that had been made to him provided it was confirmed (i) that the accommodation offered him in either compound was a permanent solution and (ii) that the accommodation had been verified by a qualified expert and was considered safe and in line with the applicable standards, as shown by a certificate of an independent recognised agency in the case of the [OSCURATO:PERSONA] compound, and by a statement of compliance or a verification report drawn up before the compound was occupied in the case of the [OSCURATO:PERSONA] compound. The applicant added that as soon as a suitable solution was found he would send a proposal for a written agreement, an agreement which would enable him to terminate his claim before the [OSCURATO:PERSONA] and his action before the [OSCURATO:PERSONA]. The applicant further added that an agreement would also need to be found as regards compensation for the costs he had incurred, including his legal costs. 26. By letter of 9 February 2011, the [OSCURATO:PERSONA] informed the applicant that his complaint should have been made against the EEAS, and that therefore it had registered his claim ‘on behalf of the EEAS’. [OSCURATO:PERSONA] also informed the applicant that he would receive a reasoned decision from the EEAS within four months of the date of submission of his complaint, and that the absence of a reply by the end of that period would be deemed to constitute implicit rejection of the complaint, against which he could appeal under Article 91 of the [OSCURATO:PERSONA]. 27. By email sent on 24 February 2011 the applicant informed Mr V. that, even if the [OSCURATO:PERSONA] compound appeared not to pose any problem in relation to the electricity and safety issues, moving there was not a feasible alternative since one of the two rooms proposed was affected by damp and the second was too small, being less than 18 square metres. As regards the [OSCURATO:PERSONA] compound, the applicant reiterated his request to receive an independent expert report. In that connection, he expressed the opinion, firstly, that the report by EUPOL could not be regarded either as being thorough or as having been drawn up on an independent basis and, secondly, that the declaration by the contractor responsible for the works within the [OSCURATO:PERSONA] compound as to the completion of the electrical works did not come from an independent source either. Procedure and forms of order sought 28. By application against the [OSCURATO:PERSONA] received at the Registry of the Tribunal by email on 21 [OSCURATO:PERSONA] 2011 (the original being lodged on 31 [OSCURATO:PERSONA] 2011), the applicant seeks, inter alia, annulment of the contested decision. That application was registered at the Registry of the Tribunal as [OSCURATO:PERSONA]5/11. 29. In the first application for interim relief, the applicant claims that the [OSCURATO:PERSONA] of the Tribunal should: – suspend the decision of 11 [OSCURATO:PERSONA] 2011; – allow him to maintain his residence in the [OSCURATO:PERSONA] until such time as the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] designates permanent accommodation for him located: – either in the [OSCURATO:PERSONA] compound, upon approval of the accommodation by a qualified independent expert, to be appointed by the [OSCURATO:PERSONA] to verify that the recommendations of the [OSCURATO:PERSONA] expert report have been implemented and that the accommodation is declared safe, in accordance with the [OSCURATO:PERSONA] norms as set out in the aforementioned report; – or in the vicinity of the [OSCURATO:PERSONA] compound and upon approval of the accommodation by a qualified independent expert, to be appointed by the [OSCURATO:PERSONA] to verify that the recommendations of the [OSCURATO:PERSONA] expert report have been implemented and that the accommodation is declared safe, in accordance with the [OSCURATO:PERSONA] norms as set out in the aforementioned report, and upon approval by the [OSCURATO:PERSONA] to ensure the safety of the location of the accommodation; – order the [OSCURATO:PERSONA] to bear the costs of the expert report and all the temporary accommodation costs; – grant the application for interim measures even before the [OSCURATO:PERSONA] has submitted its observations, pursuant to Article 104(3) of the Rules of Procedure of the Tribunal, in view of the immediate danger for the applicant’s safety and physical integrity. 30. [OSCURATO:PERSONA], which submitted its written observations on 8 February 2011, contends that the Tribunal should dismiss the first application for interim relief on the ground that the main action is manifestly inadmissible. That action should have been brought not against the [OSCURATO:PERSONA] but against the EEAS, to which the powers of the [OSCURATO:PERSONA]’s appointing authority and its authority empowered to conclude contracts of employment have been delegated, in the case of the application of Article 5 of Annex X to the [OSCURATO:PERSONA]. 31. On 17 February 2011 the applicant submitted a request that his name and those of his colleagues should be omitted from publications relating to the case. That request was rejected so far as the applicant was concerned in the absence of ‘legitimate reasons’ within the meaning of Article 44(4) of the Rules of Procedure. 32. By application against the EEAS received at the Registry of the Tribunal by email on 18 February 2011 (the original being lodged on 24 February 2011) and registered as [OSCURATO:PERSONA]15/11, the applicant seeks, inter alia, annulment of the decision which is the subject of the second application for interim relief. 33. In the second application for interim relief, the applicant sets out the same claims as those submitted in the first application for interim relief but makes them against the EEAS. 34. On 8 April 2011 the EEAS submitted its observations on the second application for interim relief. Whilst not disputing the admissibility of the main action registered on 18 February 2011, the EEAS contends that the second application for interim relief should be dismissed on the ground, inter alia, that the application for interim measures, and also the main action, had become devoid of purpose as a result of the various offers of accommodation that had been made to the applicant. 35. By order of 24 May 2011, the [OSCURATO:PERSONA] of the Tribunal, after hearing the parties, in view of the connection between the two applications for interim relief, ordered them to be joined for the purposes of the interim order, on the basis of Article 46(1) of the Rules of Procedure. [OSCURATO:PERSONA] claim seeking suspension of the decision of 11 [OSCURATO:PERSONA] 2011 36. In its applications for interim relief, the applicant seeks suspension of the decision of 11 [OSCURATO:PERSONA] 2011 instructing him to move into the apartment allocated to him within the secure compound built for [OSCURATO:PERSONA] staff. 37. It is apparent from the facts set out in paragraphs 14 and 15 of the present order that, at a meeting held between 15 and 18 [OSCURATO:PERSONA] 2011, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] offered the applicant accommodation in his former residence and that he repeated that offer of accommodation in a memorandum of 18 [OSCURATO:PERSONA] 2011. Moreover, as stated in paragraph 24 of the present order, by memorandum of 8 February 2011, Mr V., on behalf of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], offered the applicant a choice of accommodation that was immediately available within the [OSCURATO:PERSONA] compound and within the compound of the [OSCURATO:PERSONA]. 38. The memoranda of 18 [OSCURATO:PERSONA] and 8 February 2011 do not expressly state that their purpose is to revoke the decision of 11 [OSCURATO:PERSONA] 2011. Nevertheless, they may be considered to implicitly revoke that decision since, first, by offering the applicant apartments other than the one which had initially been allocated to him they remove for the future the exclusive obligation that had been imposed on him to live in that apartment and, secondly, the exchange of letters between the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (see paragraphs 17 to 21 and 23 above) show that the latter intended to reverse the instruction given in the decision of 11 [OSCURATO:PERSONA] 2011. 39. Since the decision of 11 [OSCURATO:PERSONA] 2011 has exhausted its effects during the proceedings in the present case, the [OSCURATO:PERSONA] of the Tribunal finds that there is no longer any need to adjudicate on the claim for suspension of that decision. 40. That finding cannot be invalidated by the fact that the applicant turned down, or accepted only under certain conditions, the offers of alternative accommodation which were made to him. It is clear from Article 5(1) of Annex X to the [OSCURATO:PERSONA] that the obligation incumbent on a staff member to reside in the accommodation which is provided for him is not conditional upon his agreement. In particular, in circumstances where the obligation is formulated by the competent authority in terms of choosing between two or more specified places of accommodation, it is not open to the staff member to unilaterally attach to the options available conditions or variations desired by him. 41. Consequently, the offers of alternative accommodation made to the applicant by the abovementioned memoranda of 18 [OSCURATO:PERSONA] and 8 February 2011 removed the initial, exclusive obligation contained in the decision of 11 [OSCURATO:PERSONA] 2011 to reside in the apartment allocated within the [OSCURATO:PERSONA] compound, without his agreement being necessary in order for that obligation to be removed for the future. Furthermore, while the applicant did finally remain in the accommodation which had been allocated to him at the beginning, despite the various offers subsequently made to him, this possibility was implicitly included in the limited choice offered to the applicant by the authority empowered to conclude contracts of employment in place of the original, more restricted obligation placed on him during the period from 11 [OSCURATO:PERSONA] 2011 until the first offer of alternative accommodation was made. 42. It follows that there is no longer any need to adjudicate on the claim for suspension of the decision of 11 [OSCURATO:PERSONA] 2011, without prejudice to the decision that will be taken by the Tribunal in the main action regarding the applicant’s interest in seeking annulment, with retrospective effect, of the contested decision in respect of the period during which it produced its effects. The claims for the applicant to be allowed to maintain his residence at the [OSCURATO:PERSONA] until the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] provides him with permanent accommodation, and for an order that the [OSCURATO:PERSONA] or the EEAS must bear the costs relating to such temporary accommodation 43. Since the applicant was offered a choice of permanent accommodation, there is no longer any need to adjudicate on these claims. In any event, such claims, since they ask the Tribunal to issue a direction to the administrative authority, must be declared inadmissible. 44. It is clear from the foregoing that the applications for interim relief should be dismissed, without there being any need to examine, in the context of the present order, the plea of inadmissibility raised by the [OSCURATO:PERSONA] against the first application for interim relief. Costs 45. It should be noted that Article 86 of the Rules of Procedure provides that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings, which is to be construed as being the decision closing the main proceedings (order of the [OSCURATO:PERSONA] of the Tribunal of 14 July 2010 in [OSCURATO:PERSONA]41/10 R [OSCURATO:PERSONA] v EESC , paragraph 91). 46. It is therefore appropriate to reserve the costs. [OSCURATO:PERSONA] part On those grounds, [OSCURATO:PERSONA] TRIBUNAL hereby orders: 1. There is no need to adjudicate on the claim for suspension of the decision of 11 [OSCURATO:PERSONA] 2011 by which the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in Kabul (Afghanistan) asked [OSCURATO:PERSONA] to move from the hotel in which he was staying temporarily and into the secure residential compound recently built for [OSCURATO:PERSONA] staff. 2. The remainder of the claims of the applications for interim relief in [OSCURATO:PERSONA]5/11 R and F-15/11 R are rejected. 3. The costs are reserved. Luxembourg, 27 May 2011.