JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
20 September 2023 (*)
(Civil service – Temporary staff – Staff of the FRA – Withdrawal of the United Kingdom from the European Union – Loss of nationality of a Member State – Contract for an indefinite period – Termination of the contract – Article 47(c)(ii) of the CEOS – Application for an exception to the condition of engagement laid down in Article 12(2)(a) of the CEOS – Refusal to grant an exception – Right to be heard – Principle of impartiality – Legal certainty – Principle of non-discrimination – Interests of the service – Duty of care – Manifest error of assessment)
In Case T‑648/21,
YD, represented by L. Levi, lawyer,
applicant,
v
European Union Agency for Fundamental Rights (FRA), represented by M. O’Flaherty, acting as Agent, and by B. Wägenbaur, lawyer,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, N. Półtorak (Rapporteur) and T. Pynnä, Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure,
further to the hearing on 9 March 2023,
gives the following
Judgment
1 By his action under Article 270 TFEU, the applicant, YD, seeks the annulment, first, of the decision of the European Union Agency for Fundamental Rights (FRA) of 28 December 2020 refusing to grant him an exception under Article 12(2)(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) and, consequently, terminating his contract under Article 47(c)(ii) of the CEOS (‘the contested decision’) and, second, compensation for the non-material damage that he claims to have suffered due to negligence and the adoption of that decision.
I. Background to the dispute
2 On 29 March 2017, the United Kingdom of Great Britain and Northern Ireland notified the European Council of its intention to withdraw from the European Union pursuant to Article 50 TEU. On 31 January 2020, the United Kingdom’s withdrawal from the European Union (or Brexit) became effective and the transition period began on the same date, ending on 31 December 2020. The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7) entered into force on 1 February 2020.
3 The applicant, a national of the United Kingdom, had been a member of the temporary staff of the FRA since 16 November 2002, initially under a fixed-term contract and then under a contract for an indefinite period. By decision of 6 October 2006, he was appointed to the position of accounting officer with the FRA with effect from 1 January 2006.
4 In the context of the United Kingdom’s withdrawal from the European Union, by note of 1 February 2019, the FRA informed staff who were nationals of the United Kingdom, including the applicant, of the launch of a procedure to decide whether an exception to the nationality requirement should be granted (‘the first procedure’). Annex II to that note set out the criteria for assessing the interests of the service justifying an exception, namely operational continuity, the skills and knowledge, as well as the performance of the staff member concerned and any other factor that should be taken into account in that assessment (‘the assessment criteria’). That note was accompanied by a form giving those to whom it was addressed the opportunity to state, within 10 working days, the reasons why they should be granted that exception. It also contained a timetable setting 25 February 2019 as the deadline for forwarding the recommendation of the line manager and 27 March 2019 as the deadline for adopting the final decision on whether to grant an exception.
5 On 15 February 2019, the applicant submitted an application for an exception to the nationality requirement. According to the form accompanying that application, the applicant was invited to submit the list of his qualifications as well as any other argument pertinent to the purposes of the assessment, such as his specific skills and competencies and the impact of his possible departure on operational continuity. He was also invited to mention any other pertinent information reflecting both the interests of the service and his individual interest.
6 On 28 February 2019, the Director of the FRA (‘the Director’) decided to suspend the first procedure on account of developments in Brexit, which was then resumed on 19 March 2019. By email of the same date, the applicant received a recommendation from the Director, as his line manager, stating that an exception should not be granted to him, as well as a memo on the procedure from the Head of Corporate Services. By that note, staff of United Kingdom nationality were invited to submit comments to the Director by 29 March 2019.
7 On 4 April 2019, the applicant informed the Director that he had nothing further to add to his application of 15 February 2019.
8 By email of 11 April 2019, the Director informed all the staff members concerned that, given the extensions of the period provided in Article 50(3) TEU, he would review the situation of each of them after 22 May 2019 and, after an individual meeting with each staff member concerned, he would make his decision on the de facto date of the United Kingdom’s withdrawal from the European Union.
9 On 12 April 2019, the applicant received an invitation to a meeting with the Director. At that meeting, the Head of Corporate Services was also present.
10 On 7 October 2019, the applicant was placed on sick leave.
11 By note of 30 November 2020, the applicant was informed that a new procedure would be launched, due to the considerable period of time that had elapsed since the initial expressions of interest by the UK staff concerned (‘the new procedure’). In the context of that procedure, the Head of Corporate Services, as the applicant’s former line manager, was responsible for making a recommendation to the Director.
12 Under the new procedure, the staff member concerned and his or her line manager were to complete a new form which accompanied the application for an exception to the nationality requirement, and the staff member was given the opportunity to submit written comments on the recommendation of his or her line manager and to be heard by videoconference with the Director before the latter took a decision. The applicant was invited to present his views to the Director, orally or in writing, on 18 December 2020.
13 On 3 December 2020, the applicant sent the FRA medical officer a medical certificate issued by his doctor, stating that, in order not to risk the stability of his health, he was recommended to have no contact with his place of work, including via videoconference or by email.
14 By email of 4 December 2020, the applicant, first, confirmed his interest in presenting his views and, second, referring to the medical certificate mentioned in paragraph 13 above, stated that he would be on sick leave until 15 January 2021, and therefore could not have any contact with his place of work or, therefore, attend a meeting with the Director before that date. He also requested information on the appointment of two deputy accounting officers. By email of 6 December 2020, the applicant updated his response of 4 December 2020 concerning the meeting scheduled for 18 December 2020 and informed the FRA that he wished to exercise the option provided to express his views in writing. On 8 December 2020, he requested information regarding his inability, for medical reasons, to be heard.
15 On 10 December 2020, the applicant received the recommendation of the Head of Corporate Services, in which it was stated that other FRA employees had the skills and experience required for the post occupied by the applicant, including, inter alia, two deputy accounting officers who had been appointed, in 2020, during the applicant’s sick leave, so that granting an exception to the nationality requirement would not be justified. In addition, the applicant was invited to submit written comments by 16 December 2020 at the latest.
16 On 14 December 2020, the applicant was invited to a videoconference scheduled for 18 December 2020.
17 On 15 December 2020, the applicant indicated that, in the absence of any response to his questions and further to the advice of his medical advisers, he would not be able to participate in the remainder of the procedure in question, but that he nevertheless wished to exercise his right to be heard at a later date when his health allowed.
18 By emails of 15 and 16 December 2020, the FRA informed the applicant that he could exercise his right to be heard in writing or through a third party, by 18 December 2020 at the latest.
19 On 18 December 2020, the FRA proposed that the applicant attend a meeting on 22 December 2020 or submit his written comments, by email or through a third party, by 22 December 2020 at the latest, stating that the Director’s decision would be taken on 23 December 2020. The applicant replied, reiterating that he was not in a position to submit comments, but that he wished to exercise his right to be heard at a later date.
20 On 23 December 2020, the applicant was informed that the Director’s decision would be taken on 24 December 2020 and, on that date, he was informed that the decision would finally be taken on 28 December 2020.
21 On 28 December 2020, the contested decision was adopted.
22 On 26 February 2021, the applicant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), made applicable to members of the temporary staff by virtue of Article 46 of the CEOS, which was rejected by decision of 25 June 2021 (‘the decision rejecting the complaint’).
II. Forms of order sought
23 The applicant claims that the Court should:
– annul the contested decision and, so far as necessary, the decision rejecting the complaint;
– order the FRA to pay him the amount of EUR 50 000 in compensation for the non-material damage which he claims to have suffered;
– order, by way of a measure of inquiry, the production by the FRA of the information concerning the professional experience of the newly appointed accounting officer;
– order the FRA to pay the costs.
24 The FRA claims that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
III. Law
A. The claim for annulment
1. The subject matter of the claim for annulment
25 As a preliminary point, it should be noted that the applicant seeks annulment of the contested decision and, so far as necessary, annulment of the decision rejecting the complaint. In that regard, it should be borne in mind that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint have, where that decision lacks any independent content, the effect of bringing before the Court the act against which the complaint was submitted (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 8 September 2021, QB v ECB, T‑555/20, not published, EU:T:2021:552, paragraph 29). Since the decision rejecting the complaint lacks any independent content, the claim for annulment must be regarded as being directed only against the contested decision.
2. Substance
26 In support of his claim for annulment, the applicant puts forward six pleas in law alleging (i) infringement of the right to be heard; (ii) lack of authority to launch the procedure for the adoption of a decision on whether to grant an exception and to adopt the criteria defining the interests of the service and breach of the principle of legal certainty; (iii) lack of authority to make a recommendation, breach of the administrative note of 30 November 2020 and breach of the principle of impartiality; (iv) manifest error of assessment of the interests of the service, breach of the principle of good administration, arbitrariness of the procedure and misuse of powers; (v) failure to state reasons, breach of the principle of good administration, of the duty of care and of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’); and (vi) infringement of the principle of non-discrimination on grounds of health.
27 With regard to the second plea, it should be noted that it is divided into two parts, the first concerning the lack of competence of the Head of Corporate Services and the second alleging breach of the principle of legal certainty. Therefore, when examining this plea it will be necessary to examine, first of all, the first part of the second plea in law together with the third plea, in so far as they both refer, in essence, to the lack of authority of the Head of Corporate Services in the context of the procedure regarding whether to grant an exception to the nationality requirement. The second part of the second plea will then be examined separately.
(a) The first plea in law, alleging breach of the right to be heard
28 The applicant claims that the contested decision was taken without him having been heard by the Director following the recommendation of the Head of Corporation Services not to grant him an exception. On 30 November 2020 the FRA relaunched the procedure on whether to grant an exception, without the applicant being able to be heard because of his sick leave, given that, as is apparent from the medical certificate, which was sent on 3 December 2020 to the FRA’s medical officer, he had been advised, for medical reasons, not to have any contact with his place of work, including by email or by videoconference.
29 The applicant also disputes the FRA’s argument that he could have been heard through a third person, such as a lawyer or adviser, on the ground that, first, he was under no obligation to do so and, second, the medical certificate concerning him also covered the situation of representation by a third party. Moreover, the applicant had stated that he wished to exercise his right to be heard at a time when his health allowed.
30 The fact that the applicant corresponded with the FRA, including the complaint brought, pursuant to Article 90(2) of the Staff Regulations, during his sick leave, proves only that he made an effort to answer administrative questions and cannot be construed to mean that he was able to discuss matters with the FRA.
31 The applicant also submits that it cannot be ruled out that the outcome of the procedure might have been different if he had been heard and that he should have been heard by the Management Board of the FRA rather than by the Director, since it is the former that appoints accounting officers.
32 The FRA disputes the applicant’s arguments.
33 Under Article 41(2)(a) of the Charter, 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 (see, to that effect, judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 39).
34 The right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of a decision liable to affect his or her interests adversely (see judgment of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 53 and the case-law cited).
35 In the present case, it is common ground that the contested decision constitutes an individual measure, taken against the applicant and adversely affecting him, within the meaning of Article 41(2)(a) of the Charter (see, by analogy, judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 29).
36 The applicant therefore had the right to be heard before the adoption of the contested decision.
37 In that regard, it should be borne in mind that, where a decision can be adopted only if the right to be heard has been respected, the person concerned must be given the opportunity to make known his or her views on the proposed measure effectively, in the context of an oral or written exchange initiated by the administration, proof of which must be adduced by the latter (judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 45).
38 In the present case, it is common ground that the applicant was heard in the context of the first procedure, in particular on 15 February 2019, when he completed the exception application form, on 4 April 2019, indicating, following the first negative assessment on the grant of an exception, that he had nothing to add to his application and, on 12 April 2019, in a meeting with the Director.
39 First, it should be noted that the first procedure and the new procedure had the same subject matter, namely whether to grant an exception to the nationality requirement, the new procedure having been put in place due to delays in the negotiations on the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, and the considerable period of time which had elapsed, and not because of any changes in the procedure for granting an exception to the nationality requirement itself. Furthermore, it should be noted that, in both procedures, the form concerning the application for an exception to the nationality requirement was the same, both as regards the part to be completed by the UK staff member and the part to be completed by his line manager. Second, in the context of the first procedure, the applicant had already been notified of an initial unfavourable opinion regarding the grant of an exception to the nationality requirement. Although the reasoning of the two opinions in question, one being sent under the first procedure and the other under the new procedure, was partly different, in that the second opinion referred to the recruitment of the two accounting officers replacing the applicant during his sick leave, it should be noted that, in the first opinion, the possibility of recruiting a new accounting officer was already envisaged in order to justify the lack of interest of the service in retaining the applicant in his post. Third, the applicant expressly stated, on 4 December 2020, in the course of the new procedure, that he confirmed his ‘expression of interest’ in obtaining an exception, which consisted of the application for an exception that he had submitted during the first procedure.
40 It follows that, in the first procedure, the applicant was able properly to express his views, before the adoption of the contested decision, on the administration’s intention not to grant him an exception to the nationality requirement, on the ground that such an exception was not considered to be justified having regard to the interests of the service.
41 As regards the applicant’s argument that he had not been heard because of his sick leave in the context of the new procedure, it must be noted that, on 3 December 2020, the applicant sent a medical certificate to the FRA’s medical officer, in which it was written that the applicant was on sick leave until 15 January 2021 and that his doctor recommended avoiding any contact with his place of work, including by videoconference or email.
42 In that regard, it is apparent from the case-law that, in the context of an administrative procedure initiated against a staff member, it is for that member of staff to establish his or her inability to defend himself or herself (judgment of 21 December 2021, KS v Frontex, T‑409/20, not published, EU:T:2021:914, paragraph 85; see also, to that effect, judgment of 5 December 2002, Stevens v Commission, T‑277/01, EU:T:2002:302, paragraph 42). Furthermore, the General Court held that it cannot be inferred from the mere fact that the applicant was on sick leave, which at most permitted the inference that he or she was unable to work, that this was indicative of an inability to defend himself or herself and to exercise his or her right to be heard (see, to that effect, judgment of 27 October 2016, Commission v CX, T‑493/15 P, not published, EU:T:2016:636, paragraph 49).
43 It is therefore necessary to ascertain whether the medical certificate submitted by the applicant indicates, as the applicant claims, that he was unable to exercise the right to be heard.
44 In the first place, the medical certificate submitted by the applicant, referred to in paragraph 13 above, contains a recommendation for the latter to avoid any contact with his place of work, including by videoconference and by email. However, that certificate does not mention the applicant’s inability to defend himself.
45 Thus, on 4 December 2020, that is, after the date of the medical certificate referred to in paragraph 13 above, the applicant confirmed his initial ‘expression of interest’ and requested information on the appointment of two deputy accounting officers. On 6 December 2020, he stated that he wished to update his response concerning the meeting scheduled for 18 December 2020 and informed the FRA that he wished to make use of the option provided to express his views in writing. On 8 December 2020, he raised detailed questions concerning his inability, for medical reasons, to be heard. On 11 December 2020, he confirmed the arguments that he had set out in the exception application form of 15 February 2019. Thus, the applicant cannot claim that he was unable to defend himself.
46 In the second place, the FRA communicated to the applicant, on 10 December 2020, the second negative opinion, giving him the opportunity to submit comments until 16 December 2020. It then gave him the opportunity to exercise his right to be heard by extending that period until 22 December 2020 and also stated that he could submit his comments in writing or be represented by a third party. It follows that the FRA gave the applicant the opportunity to submit his comments.
47 In the third place, it should also be noted that, if the applicant wished to avoid any direct contact with his place of work in accordance with the recommendation set out in the medical certificate, as the FRA rightly stated, he could have been represented by a third party, such as a trusted person or a lawyer. In that regard, that medical certificate makes no mention of any impossibility of having contact with the place of work through a third party. Thus, it cannot be considered that the recommendation to avoid any contact with the place of work also includes the possibility of contact through a third party.
48 In the light of the foregoing, it must be held that the applicant’s right to be heard was not infringed. Accordingly, the first plea in law must be rejected in its entirety.
(b) The first part of the second plea and the third plea, alleging lack of authority and lack of impartiality on the part of the Head of Corporate Services
49 By the first part of the second plea and the third plea, the applicant claims, in the first place, that the Head of Corporate Services had no authority to launch the procedure relating to the granting of an exception to the nationality requirement or to adopt the criteria defining the interests of the service.
50 In the second place, the applicant disputes the authority of the Head of Corporate Services to issue a recommendation as to whether an exception should be granted. Such a power infringes both the administrative note of 30 November 2020 and, in the light of the applicant’s duties as accounting officer, Article 50 of the FRA Financial Rules.
51 In the third place, the applicant considers that he did not benefit from a fair process in that it was the Head of Corporate Services, as his former line manager, who made a recommendation in the context of the new procedure, even though, on the one hand, the post of accounting officer was no longer attached to the corporate services department in order to preserve its independence and, on the other, the Director had already delivered a negative opinion concerning the applicant, after consulting with the Head of Corporate Services in the first procedure, and it was likely that the latter, being subordinate to the Director, would confirm his opinion. However, that would go against the note of 30 November 2020 relaunching the procedure and the Head of Corporate Services was not able to assess the criteria defining the interests of the service with regard to the applicant.
52 In the fourth place, in the applicant’s view, the Head of Corporate Services was not impartial to him because the applicant was one of the members of staff who had testified in the context of an inquiry into harassment concerning him that was the subject of the judgment of 18 September 2012, Allgeier v FRA (F‑58/10, EU:F:2012:130). Moreover, his promotion rate, namely two promotions over 19 years of service, is allegedly lower than the average rate for staff in the same grade as the applicant. Therefore, the applicant requests that the FRA provide statistics on promotion rates.
53 The applicant also adds that his career development report, which was to be signed by the Head of Corporate Services as his Head of Unit at the time, was signed by the Director because the Head of Corporate Services refused to do so.
54 The FRA disputes the applicant’s arguments.
(1) The alleged lack of authority of the Head of Corporate Services
55 First, as regards the applicant’s claims that the Head of Corporate Services launched the procedure and laid down the criteria for assessing the interests of the service although he did not have the authority to do so, it is apparent from the notes of 1 February 2019 and 30 November 2020 that these were signed by the Head of Corporate Services. However, it is apparent from the note of 1 February 2019 relating to the progress of the procedure that the Head of Corporate Services acted under the approval of the Director. That was also the case for the new procedure, as is apparent from the letter of 30 November 2020, in which the Head of Corporate Services expressly mentioned that the documents concerning the new procedure had been approved by the Director.
56 Second, as regards the applicant’s argument that the Head of Corporate Services was not competent to make a recommendation regarding him, it should be noted that the Head of Corporate Services was the applicant’s line manager from 2004 to 2018.
57 In accordance with the note of 30 November 2020, the Director, as the applicant’s current line manager and who, in his capacity as Authority Empowered to Conclude Contracts of Employment (‘the AECE’), is to take the decision regarding the exception, could delegate the authority to draft a recommendation on the granting of an exception to the Head of Corporate Services, as the applicant’s former line manager, only if the latter was in a position to assess the applicant’s expression of interest in the light of the relevant assessment criteria. According to the applicant, the Head of Corporate Services was not in a position to provide such an assessment, which should have been made by the Management Board of the FRA, which is responsible for appointing the accounting officer.
58 In that regard, it should be noted that the reorganisation within the FRA did not mean that the applicant’s former line manager was not in a position to assess whether the applicant met the assessment criteria. Moreover, the Head of Corporate Services was required to make a recommendation that was not binding on the Director.
59 Furthermore, as regards the applicant’s argument relating to the authority of the Management Board of the FRA to make an assessment, it should be noted that, although it is responsible for appointing the accounting officer, that authority does not in itself imply either authority to issue a recommendation on whether to grant an exception to the nationality requirement or involvement in monitoring the organisation of the department in which the applicant worked or in assessing the his performance, such that it can express an opinion on whether the assessment criteria have been met. It is for the Director to assess the interests of the service.
60 The argument alleging lack of authority on the part of the Head of Corporate Services must therefore be rejected.
(2) The alleged lack of impartiality of the Head of Corporate Services
61 The applicant disputes the impartiality of the Head of Corporate Services in so far as, first, as he was hierarchically subordinate to the Director, he was not free to make a recommendation different from that issued by the Director in the context of the first procedure and, second, the applicant allegedly gave evidence against him in proceedings concerning him which gave rise to the judgment of 18 September 2012, Allgeier v FRA (F‑58/10, EU:F:2012:130).
62 As regards the applicant’s first argument, as the FRA stated, the mere fact that there is a relationship of subordination does not prove the existence of any bias as regards the content of that recommendation. That argument cannot therefore succeed.
63 In particular, in accordance with the case-law, it is incumbent on those institutions, bodies, offices and agencies of the European Union to comply with the requirement of impartiality, in its two components, which are, on the one hand, subjective impartiality, whereby no member of the institution concerned may show personal bias or prejudice and, on the other hand, objective impartiality, according to which that institution must offer sufficient guarantees to exclude any legitimate doubt as to possible bias (see judgment of 25 February 2021, Dalli v Commission, C‑615/19 P, EU:C:2021:133, paragraph 112 and the case-law cited). In that regard, the Court of Justice has made it clear that, in order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled (see, to that effect, judgment of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 37).
64 In the present case, more than 10 years elapsed between the events giving rise to the applicant’s testimony and the recommendation of the Head of Corporate Services. During that period, the applicant continued to work for several years as subordinate to the Head of Corporate Services and has not adduced any evidence capable of giving rise to a legitimate doubt as to his impartiality.
65 It follows that the argument alleging a lack of impartiality on the part of the Head of Corporate Services is unfounded and, accordingly, that the first part of the second plea and the third plea must be rejected in their entirety.
(c) Second part of the second plea, alleging breach of the principle of legal certainty
66 The applicant complains that the FRA defined, contrary to the criteria defined by the Commission, broad and vague criteria for the purposes of assessing the interests of the service, in breach of the principle of legal certainty.
67 In the first place, it should be noted that, according to settled case-law, it follows from the principle of legal certainty that every act of the administration which produces legal effects must be clear and precise, so that those concerned may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly. That requirement applies, in particular, where the act in question may have unfavourable consequences for those concerned (see judgment of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 47 and the case-law cited).
68 In the second place, it should be recalled that the concept of the interests of the service relates to the smooth running of the institution in general and, in particular, to the specific requirements of the post to be filled (judgment of 18 April 1996, Kyrpitsis v ESC, T‑13/95, EU:T:1996:50, paragraph 51). In that regard, it is common ground that the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks (judgments of 12 November 1996, Ojha v Commission, C‑294/95 P, EU:C:1996:434, paragraph 40, and of 25 July 2006, Fries Guggenheim v Cedefop, T‑373/04, EU:T:2006:224, paragraph 67).
69 In the third place, having regard to the extent of the institutions’ discretion in assessing the interests of the service, the review undertaken by the Court of whether that condition has been respected must be confined to the question whether the AECE remained within reasonable limits and did not use its discretion in a manifestly wrong way (see judgment of 7 February 2007, Clotuche v Commission, T‑339/03, EU:T:2007:36, paragraph 62 and the case-law cited).
70 In the present case, the FRA established as assessment criteria operational continuity, skills, knowledge and performance of the member of staff concerned. Those criteria were communicated to the members of staff concerned in an annex to the notes relating to the procedure on whether to grant an exception to the nationality requirement.
71 In that regard, first, it should be noted that in the absence of the adoption of binding rules common to the institutions, bodies, offices and agencies of the European Union, the FRA could adopt the assessment criteria most appropriate to its remit in order to assess the interests of the service. Thus, it was not bound by the approach followed by the Commission and could, therefore, choose the criteria and procedures for assessing the interests of the service best suited to its specific remit (see, to that effect, judgment of 23 November 2022, Bowden and Young v Europol, T‑72/21, not published, EU:T:2022:720, paragraph 117).
72 Second, it should be noted that the applicant was able to comment on the assessment criteria, which had been agreed in advance and communicated in due time, without raising any difficulty of interpretation or understanding, which shows that the criteria were sufficiently clear, in accordance with the requirements arising from the principle of legal certainty (see, by analogy, judgment of 23 November 2022, Bowden and Young v Europol, T‑72/21, not published, EU:T:2022:720, paragraph 69).
73 Thus, it must be held that those assessment criteria are sufficiently clear, within the meaning of the case-law cited in paragraph 68 above, with the result that the adoption of those criteria does not constitute a breach of the principle of legal certainty.
74 Moreover, the applicant has not adduced evidence capable of demonstrating that the FRA committed a manifest error of assessment in the adoption of the criteria that were communicated.
75 It follows that the second part of the second plea must be rejected.
(d) The fourth plea, alleging a manifest error of assessment of the interests of the service, breach of the principle of good administration, arbitrariness of the procedure and misuse of powers
76 The applicant claims that the assessment of the facts made by the FRA in the contested decision is implausible, given that the two deputy accounting officers appointed did not have the necessary skills and experience to replace him.
77 In particular, first, the Director made a manifest error of assessment in considering that the appointment of the two deputy accounting officers was sufficient to ensure operational continuity.
78 Second, a comparative assessment between the applicant and the two deputy accounting officers was necessary but was not carried out.
79 Third, the fact that the FRA outsourced the preparation of the accounts for 2019 and 2020, despite the appointment of deputy accounting officers, implies that the latter did not have the necessary qualifications, knowledge and skills. The applicant states that the latter were either grade AST or contract staff, whereas the FRA, in the context of the first procedure, had indicated that it would replace the applicant with a grade AD 6 member of staff. In addition, the two deputy accounting officers were, it is alleged, part of the corporate services and therefore did not meet the requirements of independence within the meaning of Article 50(1) of the FRA Financial Rules. Thus, the applicant, whose request to be informed of his successor’s experience was refused, asks the Court to order the FRA to produce that information.
80 Fourth, the applicant submits that the FRA failed to take into account the fact that he had the independence, skills and knowledge required, that he was one of the three senior staff members within the FRA from a visible ethnic minority and that English is the FRA’s main working language, while the Commission had required this to be one of the criteria.
81 Fifth, the applicant points out that the fact that the two negative recommendations, namely those of 19 March 2019 and 30 November 2020, were based on different justifications suggests that the decision was arbitrary.
82 Sixth, during the two years preceding the bringing of the present action, the Director had allegedly granted contract extensions to at least two FRA staff members who had reached retirement age, at a gross cost to the FRA higher than that of the applicant.
83 Those circumstances might suggest that the contested decision was taken as a retaliatory measure following the applicant’s testimony and that the decision is therefore vitiated by a misuse of powers.
84 The FRA disputes those arguments.
85 In that regard, an error may only be classified as manifest where it can be readily detected, in the light of the criteria that the legislature intended to apply to the exercise by the administration of its broad discretion. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings upheld by the administration in its decision implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the challenged assessment may be accepted as being still true or valid (see judgment of 20 October 2021, ZU v Commission, T‑671/18 and T‑140/19, not published, EU:T:2021:715, paragraph 199 and the case-law cited).
86 In the present case, it should be recalled at the outset that the contested decision was adopted on the basis of Article 47(c)(ii) of the CEOS, which provides that the termination of employment must, in principle, occur where the staff member is no longer a national of a Member State. However, an exception may be granted by the AECE under Article 12(2)(a) of the CEOS.
87 In the first place, it must be observed that the applicant has not adduced evidence capable of demonstrating that the Director made a manifest error of assessment in finding that the end of his employment had no impact on operational continuity within the FRA. On the other hand, the FRA stated that it had considered several options, such as the appointment of a new accounting officer and the outsourcing of the functions of the accounting officer, taking into account a cost assessment and the possibility of transmitting and developing the required knowledge. Pending the appointment of an accounting officer to replace the applicant, it appointed two deputy accounting officers and outsourced the preparation of the accounts.
88 In that regard, it should be added that the Director had a wide discretion in assessing the interests of the service, so that neither the appointment of two deputy accounting officers nor the absence of a comparative assessment between them and the applicant constitute a manifest error of assessment.
89 In the second place, as regards the applicant’s arguments disputing the FRA’s failure to take into account certain factors, such as the applicant’s knowledge and experience, command of the English language and membership of an ethnic minority, it should be noted that the Director could adopt assessment criteria more suited to the FRA’s remit in order to assess the interests of the service in the context of Brexit and the procedure for the adoption of a decision on whether to grant an exception. The concept of interests of the service relates to the proper functioning of the institution in general and, in particular, to the specific requirements of the post to be filled, so that each institution, body, office and agency of the European Union may establish its own criteria and procedures for determining the interests of the service (see, to that effect, judgment of 23 November 2022, Bowden and Young v Europol, T‑72/21, not published, EU:T:2022:720, paragraph 119 and the case-law cited).
90 In the third place, as regards the allegedly different reasoning of the two negative recommendations on whether to grant an exception, that partial difference can be explained by the different factual context in which they were made. However, the essential content of the statement of reasons remains, in substance, the same, in so far as, in both cases, the reason is that the duties performed by the applicant may be performed by a third party, so that operational continuity, and therefore the interests of the service, did not require the grant of an exception to the nationality requirement.
91 In the fourth place, as regards the applicant’s claims that the contested decision was taken as retaliation for his testimony against the Head of Corporate Services, it must be stated that the applicant did not adduce sufficient evidence to substantiate his assertions, either to show an error of fact or to render implausible the assessment made by the Director in the contested decision, or to demonstrate a misuse of power.
92 In the light of the foregoing, the fourth plea must be rejected as unfounded.
(e) The fifth plea, alleging failure to state reasons, breach of the principle of good administration, of the duty of care and of Article 41 of the Charter
93 The applicant notes that, under Article 41 of the Charter, which concerns the right to good administration, every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time. He claims that, for two and a half years, he lived in a situation of uncertainty, which had harmful consequences for his health. In addition, the FRA was unable to comply with its own internal deadlines and, irrespective of the changes in the timetable for Brexit, initially dragged out the process for months and, at a later stage, relaunched a procedure which closed after one month, without respecting the applicant’s right to be heard. It did not treat the consequences of Brexit objectively, effectively or fairly, using that event as a pretext for dismissing the applicant as a member of a visible ethnic minority. The applicant points out that all senior staff members from a visible ethnic minority have recently been dismissed, two of whom were dismissed on the occasion of Brexit.
94 In addition, the FRA failed to state reasons for the contested decision and the Director’s assessment is not based on a comparative assessment of skills or on objective factors.
95 There was also an infringement of the duty of care in that the FRA failed to take into account the applicant’s personal interest, in particular the stress which that situation caused him; his age, namely 55, from which it is apparent, first, that there remained eight years of employment before reaching retirement age and, second, that he could not find employment with another institution since, according to a study by the FRA, being over 55 years old constitutes a disadvantage when looking for work. According to the applicant, the FRA could also have offered, for example, to extend his contract for a limited period in order to allow him to take early retirement.
96 The FRA disputes those arguments.
97 According to settled case-law, the duty of the administration to have regard for the interests of its officials reflects the balance of reciprocal rights and obligations established by the Staff Regulations and the CEOS in the relationship between a public authority and officials. A particular consequence of that duty and of the principle of good administration is that when the authority takes a decision concerning the situation of a staff member, it should take into consideration all the factors which may affect its decision and that, in so doing, it should take into account not only the interests of the service, but also those of the staff member concerned (see judgment of 23 November 2022, Bowden and Young v Europol, T‑72/21, not published, EU:T:2022:720, paragraph 138 and the case-law cited).
98 It is also apparent from the case-law that the requirements of the administration’s duty to have regard for the welfare of officials cannot prevent the adoption of measures which the AECE considers necessary in the interests of the service. While the authority deciding on the situation of an official or other staff member must have regard not only to the interests of the service but also to those of the official or other staff member concerned, this consideration cannot prevent the authority from rationalising services if it considers it necessary to do so (see judgment of 23 November 2022, Bowden and Young v Europol, T‑72/21, not published, EU:T:2022:720, paragraph 141 and the case-law cited).
99 In the present case, it should be noted that, although the applicant’s interest in being retained in office is not capable, in itself, of preventing the adoption of a decision terminating his contract after weighing up the interests involved, the fact remains that the FRA was required to take into account the applicant’s personal interest, within the meaning of the case-law cited in paragraph 97 above. Thus, it is necessary to determine whether that was the case.
100 In the first place, it should be noted that, in the presentation of the stages of the procedure, the FRA referred to the requirement also to take into account the perspective of the member of staff concerned in order to assess the interests of the service. Similarly, in the form accompanying the decision of 30 November 2020, the first section invited any person applying for an exception to the nationality requirement to submit the ‘list of [his] qualifications as well as any other argument pertinent to the [present] assessment’, together with ‘any other pertinent information reflecting both interest of the service and [his] individual interest’.
101 Thus, the applicant had the opportunity to express his personal interest in being granted an exception to the nationality requirement, which he did on 4 December 2020, confirming the elements set out in his application of 15 February 2019.
102 It follows that the FRA took account of the applicant’s interests and, therefore, complied with the duty of care in that it gave him the opportunity to put forward any relevant argument concerning his personal interest in the context of the procedure for granting an exception.
103 In the second place, in the decision rejecting the complaint, the FRA explained that it had supported the members of its staff concerned in their efforts to obtain the nationality of a Member State of the European Union, in particular by widening the possibilities of learning languages. The applicant freely decided not to make use of such an opportunity.
104 In that regard, it should be noted that the FRA took account of the personal interest of the staff members concerned in continuing to work at the FRA, by expanding the language learning opportunities so that they could acquire, as appropriate, the nationality of a Member State of the European Union. Thus, the FRA provided assistance to its staff holding UK nationality and also provided all the relevant information.
105 In the third place, as regards the applicant’s argument that Brexit was used as a pretext for dismissing him, it should be noted that the concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Staff Regulations for dealing with the circumstances of the case (see judgment of 7 July 2021, ID v EEAS, T‑28/20, not published, EU:T:2021:416, paragraph 160 and the case-law cited).
106 First, it is common ground that the decision to terminate the applicant’s contract was taken on the basis of Article 47(c)(ii) of the CEOS, in the context of a procedure which concerned all staff members with UK nationality within the FRA, and was aimed at an assessment with a view to possibly granting an exception.
107 Second, it should be noted that the applicant’s claim that Brexit was used as a pretext to terminate his contract, on account of his membership of a visible ethnic minority, is not supported by any sufficiently concrete evidence.
108 Thus, there is no cogent evidence showing that the contested decision was adopted for a purpose other than the interests of the service.
109 In the fourth place, in the complaint, the applicant developed arguments concerning his personal interest. He claimed that he had worked for 20 years at the FRA, that his age would cause him to encounter major difficulties in finding another job, and that the length of the procedure had caused him stress.
110 Those elements, which constitute the applicant’s personal interest, cannot prevent the adoption of the contested decision in so far as the AECE considered it necessary having regard to the interests of the service, in accordance with the case-law cited in paragraph 98 above.
111 In the fifth place, as regards the alleged failure to state reasons for the contested decision, it is apparent from that decision that the FRA referred to the procedure put in place and indicated that it had taken into account the interests of the service, in particular the obligation to adopt a decision on the possible grant of an exception before 31 December 2020, the internal organisation of the agency, whether there were difficulties in finding a replacement given the technical knowledge of the staff member concerned and his performance. It added that, in the specific case of the applicant, two accounting officers replaced him for a year, which ensured operational continuity within the FRA. Therefore, in so far as operational continuity within the FRA was not affected by the applicant’s departure, the interests of the service did not require the grant of an exception to the nationality requirement. Thus, it must be noted that, in the statement of reasons for the contested decision, the FRA set out the reasons for which it decided not to grant an exception to the nationality requirement in favour of the applicant.
112 In the light of the foregoing, the fifth plea must be rejected as unfounded.
(f) The sixth plea, alleging infringement of the principle of non-discrimination on grounds of health
113 The applicant claims that his sick leave was used as a ground for terminating his contract and that he was therefore discriminated against on grounds of health. He explains that it is apparent from the statement of reasons for the contested decision that he was refused the exception because of the appointment of the two deputy accounting officers who had ensured operational continuity during his sick leave. Thus, if he had not been absent because of his state of health, that would not have been the case.
114 The FRA disputes those arguments.
115 Article 1d of the Staff Regulations, made applicable to temporary staff by Article 10 of the CEOS, prohibits any discrimination. Paragraph 1 of that provision lists examples of discrimination based on, inter alia, sex, race, colour, ethnic or social origin, genetic features, language, religion or beliefs, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation.
116 It follows from paragraph 5 of that article that an official who considers himself or herself wronged by a failure to apply the principle of equal treatment to him or her is to establish facts from which it may be presumed that there has been direct or indirect discrimination.
117 It is clear from the wording of Article 1d of the Staff Regulations that discrimination based on state of health is not excluded from its scope.
118 In the present case, it is apparent from the contested decision that, given that the appointment of two deputy accounting officers during the applicant’s sick leave ensured continuity of service, the interests of the service did not justify the grant of an exception.
119 Similarly, according to the opinion of the Director of 19 March 2019, as the applicant’s line manager, given in the context of the first procedure, continuity of service could be ensured in the applicant’s absence, both by appointing a new accounting officer and by outsourcing his duties. That opinion, which was drafted before the beginning of the applicant’s sick leave and the appointment of the deputy accounting officers, shows that, according to the assessment of the interests of the service carried out by the FRA, continuity of service did not justify the grant of an exception in so far as other options were available for carrying out the applicant’s duties.
120 Thus, the applicant has not established the existence of discrimination based on his state of health.
121 Accordingly, the sixth plea in law must be rejected in its entirety.
B. Claim for damages
122 The applicant seeks compensation for the non-material damage which he claims to have suffered, which he assesses ex aequo et bono at EUR 50 000. That damage is alleged to have resulted, in essence, from the illegality of the contested decision and of the procedures that led to its adoption, namely from the lack of authority and negligence of the FRA, unfair procedures and the fact that his employment was terminated in an unfair and unfounded manner, without him having had the opportunity to be heard.
123 The FRA disputes the applicant’s arguments.
124 In accordance with settled case-law in civil service matters, where an application for compensation is closely related to an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for compensation (see, to that effect, judgments of 2 December 2020, Thunus and Others v EIB, T‑318/19, not published, EU:T:2020:578, paragraph 119 and the case-law cited).
125 In the present case, there is a close link between the claim for damages and the claim for annulment, since the applicant seeks compensation for the damage which he claims to have suffered as a result of the illegality of the contested decision and of the procedures which led to its adoption. However, as the examination of the pleas in law submitted in support of the claims for annulment did not reveal any illegality, and therefore no fault such as to render the administration liable, the claims for compensation must also be dismissed.
126 Consequently, the claim for compensation for non-material damage must be rejected.
C. The request for production of documents
127 The applicant requested the production by the FRA of information concerning the professional experience of the newly appointed accounting officer.
128 Article 90 of the Rules of Procedure of the General Court provides that measures of organisation of procedure are to be prescribed by the General Court. Moreover, it is clear from Article 92(1) of the Rules of Procedure that the Court has exclusive jurisdiction to assess the usefulness of measures of inquiry for the purpose of resolving the dispute (see, to that effect, judgment of 13 October 2021, IB v EUIPO, T‑22/20, EU:T:2021:689, paragraph 163 (not published)).
129 In the present case, it follows from all the foregoing that the applicant’s claims for annulment and for damages were rejected without relying on the professional experience of the accounting officer who replaced him. Consequently, as the measure of inquiry requested by the applicant is neither relevant nor useful for the resolution of the dispute, there is no need to order it
IV. Costs
130 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
131 Under Article 135(1) of the Rules of Procedure, the Court may, if equity so requires, decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own, or even that it is not to be ordered to pay any costs.
132 The Court considers that it is fair in the circumstances of the case, in the light of Article 135(1) of the Rules of Procedure, to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action.
2. Orders YD and the European Union Agency for Fundamental Rights (FRA) to bear their own costs.
da Silva Passos | Półtorak | Pynnä |
Delivered in open court in Luxembourg on 20 September 2023.
V. Di Bucci | | M. van der Woude |