JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
19 June 2013
Case F‑40/12
CF
v
European Aviation Safety Agency (EASA)
(Civil service — Former member of the temporary staff — Fixed-term contract — Dismissal during sick leave — Article 16 of the CEOS — Article 48(b) of the CEOS — Psychological harassment)
Application: brought under Article 270 TFEU, in which CF seeks, in essence, first, annulment of the decision of 24 May 2011 by which the authority empowered to conclude contracts of employment ‘AECE’) of the European Aviation Safety Agency (EASA or ‘the Agency’) terminated her temporary staff contract (‘the contested decision’), secondly, an order declaring the EASA must compensate her for the damage she suffered as a result of that decision and, thirdly, compensation for the damage she suffered as a result of the psychological harassment to which she was subjected.
Held: The decision of 24 May 2011 by which the authority empowered to conclude contracts of employment of the European Aviation Safety Agency terminated CF’s contract as a member of the temporary staff is annulled. The European Aviation Safety Agency is to pay CF the sum of EUR 88 189.76 by way of compensation for the material damage she suffered. The action is dismissed as to the remainder. The European Aviation Safety Agency is to bear its own costs and to pay three quarters of the costs incurred by CF. CF is to bear one quarter of her own costs.
Summary
1. Officials — Members of the temporary staff — Termination of a fixed-term contract following sick leave — Calculation of the length of time worked by the member of staff — Taking into account the duties performed previously by the person concerned as a member of the contract staff
(Charter of Fundamental Rights of the European Union, Art. 34(1); Conditions of Employment of Other Servants, Arts 3a, 16 and 48(b))
2. Actions brought by officials — Claim for compensation for damage caused by conduct that does not constitute a decision — No pre-litigation procedure in accordance with the Staff Regulations — Inadmissibility
(Staff Regulations, Arts 90 and 91)
3. Actions brought by officials — Actions for damages — Action invoking the duty of the administration to make good damage caused to an official by a third party — Admissibility — Conditions — Exhaustion of remedies — Exception — Absence of effective remedies
(Staff Regulations, Art. 24, second para., and Art. 91)
4. Officials — Members of the temporary staff — Dismissal in the context of harassment — Unlawfulness of the dismissal decision — Need for a link between the harassment and the grounds of the dismissal decision
(Staff Regulations, Arts 12a, 90 and 91)
5. Officials — Members of the temporary staff — Organisation of departments — Measure consisting in obtaining a statement from one staff member concerning the nature of his relationship with another staff member — Lawfulness — Breach of the right to respect for private life — Justification — Measure taken to ensure the efficient functioning of the service
(Charter of Fundamental Rights of the European Union, Arts 7 and 52(3)
1. Duties which a temporary staff member has performed previously as a member of the contract staff under Article 3a of the Conditions of Employment of Other Servants must be taken into account in order to calculate the ‘length of time worked by the member of staff’ during which sick leave is paid under Article 16 of those Conditions and at the end of which the employment of that temporary staff member may be terminated without notice on the basis of Article 48(b) of those same Conditions.
In interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs, the objectives of the rules of which it is part and the provisions of EU law as a whole.
In that regard, the second paragraph of Article 16 of the Conditions of Employment of Other Servants must be read in the light of Article 34(1) of the Charter of Fundamental Rights of the European Union, which provides that the Union recognises and respects, as a fundamental right, the entitlement to social security benefits and social services providing protection in cases such as illness.
Lastly, the second paragraph of Article 16 of the Conditions of Employment of Other Servants seeks, in the event of illness, to protect temporary staff members against the social and economic risks stemming from that state and thus contributes towards an objective as compelling as the protection of health.
In a context in which staff may be recruited as temporary staff or contractual staff and where it is not unusual for institutions and agencies to have recourse in turn to both those regimes in order to secure the services of the same staff member, the objective of health protection would not be fully achieved if the services provided by that staff member in one or other of those capacities were not integrated.
(see paras 36, 37, 41-43)
See:
6 October 1982, 283/81 Cilfit and Others, para. 20
29 September 2009, F‑69/07 and F‑60/08 O v Commission, para. 114
2. Under Articles 90 and 91 of the Staff Regulations an action for compensation for damage caused by an act not in the nature of a decision, such as psychological harassment, must be preceded by an administrative procedure in two phases. First, the person concerned must submit to the relevant authority a request, within the meaning of Article 90(1) of the Staff Regulations, asking the administration to make good that damage. It is only the express or implied rejection of that request which constitutes a decision having an adverse effect against which a complaint may be directed, and it is only after a decision expressly or implicitly rejecting that complaint that an action for damages may be brought before the EU Court.
(see para. 57)
See:
1 February 2007, F‑42/05 Rossi Ferreras v Commission, paras 58 to 61
3. The purpose of the second paragraph of Article 24 of the Staff Regulations is to provide compensation for damage caused to an official or member of staff by the actions of a third party or another official referred to in the first paragraph of the same article, provided that he has been unable to obtain compensation from the person who caused that damage. The admissibility of an action for compensation brought by an official or member of staff in a case of harassment is thus subject to the exhaustion of domestic legal remedies in so far as these provide effective protection for the individuals concerned and can result in reparation of the damage alleged .
(see para. 59)
See:
5 October 2006, C‑365/05 P Schmidt-Brown v Commission, para. 78
9 March 2005, T‑254/02 L v Commission, para. 148
12 July 2011, T‑80/09 P Commission v Q, para. 67
4. Just because a member of staff has been proved to have suffered psychological harassment does not thereby render unlawful any decision adversely affecting that staff member and occurring in that context of harassment. Owing to its nature, the existence of psychological harassment may, in principle, be relied upon only in support of a claim for annulment directed against the rejection of a request for assistance. However, a plea alleging harassment may, by way of exception, be relied upon against a dismissal decision if it is apparent that there is a link between the harassment at issue and the grounds of that decision. That is so in the case of a dismissal decision based on the extension of sick leave resulting from a state of health which might be the result of psychological harassment.
(see paras 79-80)
See:
24 February 2010, F‑2/09 Menghi v ENISA, para. 69
5. In view of the requirements of effectiveness demanded of temporary staff, a measure whereby the administration obtains a statement from a member of the temporary staff to the effect that he is not in an intimate relationship with another staff member may be regarded as relating to the efficient functioning of the administration and be justified in that regard by the prevention of disorder within the meaning of Article 8 of the European Convention on Human Rights, where the issue of the nature of the relationship of that staff member creates a difficult environment within the service.
In that regard, although it is settled that such a request constitutes an intrusion into privacy, the right to respect for private life, guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union and enshrined in Article 8 of that Convention, does not however constitute an absolute prerogative and may be restricted under Article 52(3) of the Charter.
(see paras 85-86)