JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)

16 December 2015

Case F‑135/14

DE

v

European Medicines Agency (EMA)

(Civil service — EMA staff — Placement on ‘non-active status’ — Act adversely affecting an official or staff member — Right to be heard — Infringement)

Application:      under Article 270 TFEU, in which DE seeks, in essence, annulment of the decision of 31 January 2014 by which the European Medicines Agency (EMA) placed him on ‘non-active status’ from 1 February 2014 until the expiry of his temporary staff contract on 15 March 2014, and an order that the EMA pay compensation for the harm suffered.

Held:      The decision of 31 January 2014 by which the European Medicines Agency placed DE on ‘non-active status’ is annulled. The European Medicines Agency is ordered to pay DE the sum of EUR 10 000. The European Medicines Agency is ordered to bear its own costs and to pay the costs incurred by DE.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Concept — Decision to place on ‘non-active status’ taken as a result of wrongful conduct — Included

(Staff Regulations, Art. 90(2), and Annex IX, Art. 23)

2.      Officials — Disciplinary measures — Decision to place on ‘non-active status’ taken as a result of wrongful conduct — Absence of prior hearing of the staff member concerned — Infringement of the rights of the defence

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Staff Regulations, Annex IX, Art. 23)

1.      For the purposes of Article 90(2) of the Staff Regulations, only those acts or measures having binding legal effects which are such as to affect a staff member’s interests by bringing about a distinct change in his legal position are acts adversely affecting a staff member.

Even if it does not affect the material interests and/or rank of the staff member concerned, a change of duties may, in so far as it alters the conditions for the performance of his duties and also the nature of those duties, impair his non-material interests and future prospects and thus adversely affect him.

Pursuant to Article 23 of Annex IX to the Staff Regulations, if the administration accuses a staff member of serious misconduct, it may suspend that staff member. Such a measure, although temporary, is, by its nature, an act adversely affecting the person concerned, as it is based on an accusation of serious misconduct and may have serious consequences for that person, both personally and professionally, by depriving him, on those grounds, of the opportunity to perform his duties. In addition, measures which, without withholding or reducing his salary, deprive the staff member concerned of the opportunity to perform his duties may be classed as acts adversely affecting him.

In the present case, although the agency concerned has described the contested decision as a measure of placement on ‘non-active status’, such a decision is, in terms of its effects, equivalent to a decision to suspend a person from duty pursuant to Article 23 of Annex IX to the Staff Regulations, taken as a result of an accusation of wrongful conduct made against the applicant whom it adversely affects both by its reasoning and its operative part.

(see paras 36-38, 40)

See:

Judgment of 5 May 1966 in Gutmann v Commission, 18/65 and 35/65, EU:C:1966:24, ECR. p. 149, 168

Judgments of 15 June 2000 in F v Commission, T‑211/98, EU:T:2000:153, paras 30 and 31, and 16 December 2004 in De Nicola v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, paras 108 and 113

Judgments of 8 May 2008 in Kerstens v Commission, F‑119/06, EU:F:2008:54, para. 45 and the case-law cited therein, and 23 October 2013 in Solberg v EMCDDA, F‑124/12, EU:F:2013:157, para. 16 and the case-law cited therein

2.      The right of every person to be heard before any individual measure which would affect him or her adversely is taken forms part of the observance of the rights of the defence.

That right has been set out in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, which acknowledges ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’, a provision which is of general application. In order to ensure that the addressee of such a measure is in fact protected, the object of that rule is, in particular, to enable him to correct an error or produce such information relating to his personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having this content or that.

Observance of the right to be heard involves the person concerned being put in a position, prior to the adoption of the decision adversely affecting him, effectively to make known his views on the truth and relevance of the facts and circumstances on the basis of which that decision was adopted.

As regards, in particular, a suspension decision adopted on the basis of Article 23 of Annex IX to the Staff Regulations, which is taken where there is an accusation of serious misconduct, while taking into account the urgency which normally obtains when such a decision is taken, that decision must be adopted in accordance with the rights of the defence, of which the right to be heard is one expression. Consequently, unless special circumstances are duly established, a decision to suspend a person from duty as a disciplinary measure may be adopted only after the official or staff member concerned has been put in a position effectively to make known his views on the evidence relied on against him and on which the competent authority proposes to base that decision.

In the present case, the decision to place the person concerned on ‘non-active status’, adopted by a Union agency as a result of wrongful conduct and depriving him of the exercise of his duties, must be regarded as equivalent, in terms of its effects, to a decision to suspend a person from duty as a disciplinary measure and is thus liable adversely to affect his interests.

(see paras 54-58)

See:

Judgment of 21 December 2011 in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, para. 65 and the case-law cited therein

Judgments of 15 June 2000 in F v Commission, T‑211/98, EU:T:2000:153, para. 26 et seq., and 16 December 2004 in De Nicola v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, para. 123

Judgment of 11 September 2013 in L v Parliament, T‑317/10 P, EU:T:2013:413, para. 81

Judgments of 14 May 2014 in Delcroix v EEAS, F‑11/13, EU:F:2014:91, para. 35 and the case-law cited therein; 19 June 2014 in BN v Parliament, F‑157/12, EU:F:2014:164, para. 84; 13 November 2014 in DeLoecker v EEAS, F‑78/13, EU:F:2014:246, para. 33; 15 April 2015 in Pipiliagkas v Commission, F‑96/13, EU:F:2015:29, para. 54, and 9 September 2015 in DeLoecker v EEAS, F‑28/14, EU:F:2015:101, para. 128