Le changement d’établissement présuppose une présence dans l’établissement

Le parcours des fonctionnaires hospitaliers tend de moins en moins à être figé, contrairement à l’idée reçue. L’exemple de l’agent qui souhaite suivre son conjoint muté dans un établissement situé à très longue distance de son domicile en constitue une illustration topique.A ce titre, l’article 38 de la loi n°86-33 du 9 janvier 1986 portant dispositions statutaires relatives à la fonction publique hospitalière prévoit que « dans la mesure compatible avec les nécessités du service, l’autorité investie du pouvoir de nomination fait bénéficier par priorité du changement d’établissement » les fonctionnaires qui sont « séparés de leur conjoint pour des raisons professionnelles ».

La Cour administrative d’appel de Bordeaux a eu l‘occasion de juger de la situation d’une IDE (infirmière diplômée d’Etat), exerçant en qualité de titulaire au centre hospitalier Emile-Roux à Limeil-Brévannes (Val-de-Marne), qui a eu la mauvaise idée, non pas de suivre son mari muté à La Réunion, mais de demander sa mise en disponibilité, qui a été acceptée, pour ensuite former une demande de changement d’établissement à fin de suivre son conjoint. En l’espèce, cette dernière demande avait été formée auprès du centre hospitalier départemental Félix-Guyon à Saint-Denis de la Réunion, laquelle a été refusée par le directeur.

En effet, et si l’on en revient aux textes, la disponibilité se définit par l’article 62 de la même loi comme étant la « position du fonctionnaire qui, placé hors de son établissement, cesse de bénéficier, dans cette position, de ses droits à l’avancement et à la retraite ».

Or, la priorité organisée dans le cadre du changement d’établissement et visée à l’article 38 sus-évoqué suppose que le fonctionnaire ne soit pas déjà placé hors de l’établissement qu’il veut quitter pour être nommé dans un autre établissement : c’est là un raisonnement simple et juste (au sens de justesse et non de justice).

Faute de pouvoir remplir ces conditions, la requête de l’infirmière en question a été irrévocablement rejetée ((CAA Bordeaux, 5ème ch., 29 décembre 2006, Bodereau, n° 03BX02057.)).

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