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

29 April 2015

Joined Cases F‑159/12 and F‑161/12

CJ

v

European Centre for Disease Prevention and Control (ECDC)

(Civil service — Contract staff — Fixed term contract — Termination — Breakdown in the relationship of trust — Right to be heard — Infringement)

Applications:      under Article 270 TFEU, in which CJ seeks, as to the first, annulment of the decision of 24 February 2012 of the Director of the European Centre for Disease Prevention and Control (ECDC) to terminate his contract as a member of the contract staff, and compensation in respect of the material harm which he considers himself to have suffered on account of that decision and, as to the second, compensation for the non-material harm allegedly suffered.

Held:      The decision of 24 February 2012 of the Director of the European Centre for Disease Prevention and Control terminating CJ’s contract as a member of the contract staff is annulled. The remainder of the action in Case F‑159/12 is dismissed. The action in Case F‑161/12 is dismissed. In Case F‑159/12 the parties are to bear their own costs. In Case F‑161/12, CJ is to bear his own costs and is ordered to pay the costs incurred by the European Centre for Disease Prevention and Control in that case. In Case F‑159/12, CJ is ordered to pay the Tribunal a sum of EUR 2 000 in order to refund part of the avoidable expenditure which the Tribunal was forced to incur.

Summary

1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Statement of the pleas in law relied on — Additional pleas set out only in the annexes — Inadmissibility

(Rules of Procedure of the Civil Service Tribunal, Art. 50(1)(e))

2.      Officials — Contract staff — Early termination of a fixed term contract with notice — Administration’s discretion — Obligation to initiate disciplinary proceedings — None

(Conditions of Employment of Other Servants, Arts 47(b) and 49(1))

3.      Officials — Contract staff — Early termination of a fixed term contract with notice — Right to be heard — Scope — Termination without warning the person concerned — Infringement — Consequences

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Conditions of Employment of other Servants, Art. 47(b)(ii))

4.      Officials — Principles — Right to a presumption of innocence — Scope

5.      Officials — Disciplinary regime — Inquiry prior to the initiation of disciplinary proceedings — Administration’s discretion — Scope

(Staff Regulations, Annex IX)

6.      Officials — Contract staff — Early termination of a fixed term contract with notice — Justification based on breakdown in the relationship of trust — Judicial review — Limits

(Conditions of Employment of other Servants, Art. 47(b)(ii))

7.      Actions brought by officials — Actions for damages — Annulment of the illegal act in dispute — Whether appropriate compensation for non-material damage — Limits

(Staff Regulations, Art. 91)

1.      It is apparent from Article 50(1)(e) of the Rules of Procedure of the Civil Service Tribunal that the applicant must indicate in his application the specific complaints on which the Tribunal is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based.

In that connection, even though an application may be supported and supplemented, in regard to specific points, by references to extracts of documents appended thereto, the annexes have a purely evidential and instrumental function and cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application.

It follows that complaints which are only set out in the annexes to the application are inadmissible.

(see paras 76, 77)

See:

Judgment in Giannini v Commission, F‑49/08, EU:F:2009:76, para. 86

2.      On account of the broad discretion enjoyed by the authority authorised to conclude contracts of employment, where there is wrongful conduct capable of justifying the dismissal of a member of the temporary staff or contract staff, there is no obligation on that authority to initiate disciplinary proceedings against him rather than using the option of unilaterally terminating the contract provided for in Article 47(b) of the Conditions of Employment of Other Servants.

It is only if the authority authorised to conclude contracts of employment intends to dismiss a member of the temporary staff or contract staff without notice, in a serious case of failure to comply with his obligations, that the disciplinary procedure provided for in Annex IX to the Staff Regulations of Officials, which applies by analogy to members of the temporary staff and contract staff, should be initiated, as provided for in Article 49(1) of the Conditions of Employment of Other Servants.

(see para. 81)

See:

Judgment in Longinidis v Cedefop, T‑283/08 P, EU:T:2011:338, para. 100

Judgments in Gomes Moreira v ECDC, F‑80/11, EU:F:2013:159, para. 49, and CT v EACEA, F‑36/13, EU:F:2013:190, para. 54

3.      Pursuant to Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, every person has the right to be heard before any individual measure which would affect him or her adversely is taken. Furthermore, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement.

Since a decision to terminate with notice the fixed term contract of a member of the contract staff on the basis of Article 47(b)(ii) of the Conditions of Employment of Other Servants constitutes an individual measure which affects the person concerned adversely, he therefore has the right to be heard before the adoption of such a decision, even though Article 47(b)(ii) does not specifically provide for such a right.

The right to be heard must be held to have been infringed where the person concerned has not been given the opportunity to submit observations on the action which the authority authorised to conclude contracts of employment is planning to take as a result of his behaviour and, in particular, on the fact that it intends to terminate his contract prematurely.

However, for an infringement of the right to be heard to result in the annulment of the decision to terminate the contract, it is also necessary that, in the absence of that irregularity, the procedure might have led to a different result.

In that regard, the decision to end the contract of a member of the contract staff before its expiry, however warranted, constitutes an act of extreme seriousness both for the institution or agency concerned, which selected and recruited him, normally following a highly competitive selection procedure, and even more so for the member of staff, who suddenly finds himself to be unemployed and whose career might be negatively affected for many years. Besides the fact that this is a fundamental right of the member of staff concerned, the exercise by the latter of the right to state his views effectively on the dismissal decision envisaged falls within the responsibility of the authority authorised to conclude contracts of employment, a responsibility which it must scrupulously comply with. It is not for the Union judicature to adopt a position on whether other solutions which might have been envisaged in the case were feasible. In any event, to hold that the authority authorised to conclude contracts of employment would have adopted the same decision, even after hearing the person concerned, would render meaningless the fundamental right to be heard affirmed in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, since the very content of that right implies that the person concerned have the possibility of influencing the decision-making process at issue.

(see paras 108-110, 122-124, 129)

See:

Judgments in Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, para. 83, and Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paras 39 and 79

Judgments in CH v Parliament, F‑129/12, EU:F:2013:203, paras 34 and 38; Tzikas v ERA, F‑120/13, EU:F:2014:197, para. 46, and Wahlström v Frontex, F‑117/13, EU:F:2014:215, paras 28 and 33 and the case-law cited therein

4.      The principle of the presumption of innocence is a fundamental right which the European Union Courts must ensure is observed by the institutions. That right is a general principle applicable to administrative proceedings having regard to the nature of the infringements in question and the nature and degree of severity of the ensuing penalties. It follows that the right to a presumption of innocence applies, even in the absence of a criminal prosecution, for an official accused of a breach of his obligations under the Staff Regulations which is sufficiently serious to warrant an investigation by the European Anti-Fraud Office, in the light of which the administration may adopt any measure it deems necessary, however severe.

In the case of a decision to terminate with notice the fixed term contract of a member of the contract staff on the ground of a breakdown in the relationship of trust, that right may be violated if the administration decides to terminate the staff member’s contract solely on the basis of the accusations made with regard to him by his line manager, without ever giving him the opportunity to explain himself or ascertaining whether the criticism of him was justified. However, where the decision is adopted after an inquiry has been conducted during the course of which the person concerned has been given the opportunity to state his views, there is no issue of a breach of the principle of the presumption of innocence.

(see paras 154, 155)

See:

Judgment in Apostolidis v Court of Justice, T‑86/97, EU:T:1998:71, para. 47

Judgment in BD v Commission, F‑36/11, EU:F:2012:49, para. 51 and the case-law cited therein

5.      The institutions have wide discretion in the choice of person to whom they entrust an administrative inquiry into accusations of insubordination. In that context, the institutions are required to choose a person suitable for the delicate task entrusted to him or her, without however the experience of that person as an investigator being a decisive factor in that choice.

In the light of that wide discretion, the person concerned cannot legitimately challenge the administration’s choice before the Union judicature on the sole basis of the alleged inexperience of the investigators and without even having attempted to prove that the authority authorised to conclude contracts of employment used its discretion in a way that was manifestly incorrect.

(see paras 174, 175)

See:

Judgment in Tzirani v Commission, F‑46/11, EU:F:2013:115, para. 121

6.      The early termination of a contract of a member of the contract staff under Article 47(b)(ii) of the Conditions of Employment of Other Servants may be based on conduct of the staff member concerned leading to a breakdown in the relationship of trust between that person and the authority authorised to conclude contracts of employment. In that regard, as the competent authority has wide discretion, review by the Courts of the European Union must be limited to ensuring that there has been no manifest error or misuse of powers.

In that context, in order to establish that the administration committed a manifest error in assessing the facts which would justify the annulment of a decision taken on the basis of that assessment, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent.

(see paras 188, 189)

See:

Judgment in ETF v Michel, T‑108/11 P, EU:T:2013:625, para. 77

Judgments in Mocová v Commission, F‑41/11, EU:F:2012:82, para. 44 and the case-law cited therein, and CT v EACEA, EU:F:2013:190, para. 43 and the case-law cited therein

7.      The annulment of an illegal act in itself constitutes appropriate and, in principle, sufficient compensation for any non-material damage which that act may have caused, unless the applicant demonstrates that he suffered non-material damage separable from the illegality justifying the annulment and incapable of being entirely remedied by that annulment.

(see para. 234)

See:

Judgment in CP v Parliament, F‑8/13, EU:F:2014:44, para. 105