JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

19 June 2013

Case F‑8/12

BY

v

European Aviation Safety Agency (EASA)

(EASA staff — Temporary staff — Dismissal for incompetence — Duty to have regard for the welfare of officials — Reason unconnected with professional difficulties — Psychological harassment — Illness — Damages)

Application:      brought under Article 270 TFEU, in which BY seeks compensation for damage allegedly suffered as a result of the decision of the Executive Director of the European Aviation Safety Agency (EASA or ‘the Agency’) of 10 June 2011 to dismiss him with effect from 15 December 2011, and of the psychological harassment suffered by him in the context of his employment relationship within the Agency.

Held:      The European Aviation Safety Agency is to pay to BY the sum corresponding to nine months of the net remuneration which he received prior to his dismissal. The action is dismissed as to the remainder. The European Aviation Safety Agency is to bear its own costs and to pay the costs incurred by BY.

Summary

1.      Officials — Dismissal for incompetence — Duty to have regard for the welfare of officials — Obligation to take into account the medical origin of the difficulties encountered by an official — Scope

(Staff Regulations, Art. 24)

2.      Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Calculation of the notice period — Taking into account the staff member’s sick leave

(Conditions of Employment of Other Servants, Art. 47(c)(i))

3.      Officials — Non-contractual liability of the institutions — Conditions — Damage — Evaluation criteria

(Art. 340 TFEU)

4.      Actions brought by officials — Action for damages — Annulment of the illegal act in dispute — Non-material damage separable from the illegality incapable of being entirely remedied by annulment

(Staff Regulations, Art. 91)

1.      The duty to have regard for the welfare of officials requires the administration, where there is doubt as to the medical origin of the difficulties encountered by an official in performing the tasks falling to him, to take all necessary steps to dispel that doubt before a decision as serious as a decision to dismiss that official is adopted.

Likewise, the obligations imposed on the administration by the duty to have regard for the welfare of officials are substantially reinforced when what is at issue is the particular situation of an official in respect of whom there are doubts regarding his mental health and, consequently, his ability to defend his own interests.

In that regard, where the administration has at its disposal sufficient information to give grounds for believing that the conduct alleged against the official might, at least in part, be due to reasons of a different nature, in particular alleged psychological harassment or medical reasons, the onus is on it, before adopting the dismissal decision, to take all necessary steps to satisfy itself that that is not the case. That means that at least the administration should be aware of the results of the administrative inquiry concerning the request for assistance in respect of psychological harassment.

(see paras 34, 35, 38)

See:

26 February 2003, T‑145/01 Latino v Commission, para. 93

28 October 2010, F‑92/09 U v Parliament, paras 65 and 67; 17 February 2011, F‑119/07 Strack v Commission, para. 85

2.      As regards calculation of the period of notice in the event of termination of a temporary staff contract, under Article 47(c)(i) of the Conditions of Employment of Other Servants, the administration must take into account the staff member’s sick leave, so that any notice period does not start to run until after such leave has ended, although it must not be delayed for more than three months.

(see paras 40, 49)

3.      As regards the material damage suffered by an official because the decision dismissing him is unlawful, it is appropriate, in assessing that damage, to take into account all the circumstances of the case, namely, inter alia, the nature of the irregularity committed and any act, even if subsequent to the unlawful decision, the consequence of which is to increase or reduce the damage eligible for compensation.

(see para. 46)

See:

26 October 2006, F‑1/05 Landgren v ETF, para. 95

4.      The annulment of an unlawful act, effective ab initio, may in itself constitute appropriate and, in principle, sufficient reparation for any non-material damage that act may have caused, unless the applicant demonstrates that he has suffered non-material damage separable from the illegality of the act justifying its annulment and not capable of being entirely remedied by that annulment. The same must apply with regard to the finding by the EU Court that an administrative measure is unlawful where the applicant has not formally sought the annulment of that measure and has merely sought compensation.

(see para. 52)

See:

9 July 1987, 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes v Commission, para. 22; 7 February 1990, C‑343/87 Culin v Commission, paras 27 and 28

9 November 2004, T‑116/03 Montalto v Council, para. 127; 6 June 2006, T‑10/02 Girardot v Commission, para. 131

8 May 2008, F‑6/07 Suvikas v Council, para. 151; U v Parliament, para. 95