(Case T‑492/17)

(publication by extracts)

Stephan Fleig

v

European External Action Service

 Judgment of the General Court (First Chamber), 2 April 2019

(Civil service — Contract staff — Contract of indefinite duration — Article 47(c)(i) of the CEOS — Termination with notice — Grounds for termination — Breakdown in the relationship of trust — Interests of the service — Manifest error of assessment — Duty to have regard for the welfare of staff — Principle of sound administration — Articles 30 and 41 of the Charter of Fundamental Rights — Procedural issue — Publication on the internet of documents included in the file relating to the proceedings before the General Court — Article 17 of the Staff Regulations)

1.      Civil servants — Rights and obligations — Disclosure of information relating to the service — Authorisation — Time limit — Authorisation for disclosure in order to enable the person concerned to obtain medical assistance — Strict nature — Possibility of disclosing documents not strictly linked to the personal assistance of the person concerned — Not included

(Staff Regulations of Officials, Arts 17, 17a and 90(1))

(see paragraphs 145-147)

2.      Civil servants — Rights and obligations — Disclosure of information relating to the service — Authorisation for disclosure in order to enable the person concerned to obtain medical assistance — Forwarding of documents by the person concerned to a third party — Obligation to ensure compliance, by that third party, with the terms of authorisation — Non-compliance — Disclosure of documents subsequently produced in court proceedings — Consequences

(Staff Regulations of Officials, Arts 17 and 17a)

(see paragraphs 150-153)

Résumé

In the judgment in Fleig v EEAS (T‑492/17), handed down on 2 April 2019, the Court dismissed a former contractual agent’s application for the annulment of the decision of the European External Action Service (EEAS) to terminate his contract as a member of the contract staff. In this case the Court was called upon to rule, inter alia, on a procedural issue concerning the publication, on the applicant’s website, of certain documents already included in the file before the Court that could constitute a failure to observe the principle of the confidentiality of the legal proceedings pending. The applicant claimed that the documents in question had been published lawfully on the ground that they had been made public in the past. In that regard, the applicant relied on a request for authorisation to disclose those documents which he had submitted several years earlier and the implicit authorisation that he claimed had resulted from the failure of EEAS to object to that request within the time limit of thirty working days, as provided for in the second subparagraph of Article 17a(2) of the Staff Regulations of Officials of the European Union.

First of all, the Court noted that, despite referring to Article 17a of the Staff Regulations, the request for authorisation in question in fact concerned the disclosure of information governed by Article 17 of the Staff Regulations. Therefore, that request for authorisation was governed by Article 90(1) of the Staff Regulations, with the result that the EEAS had a time limit of four months to take a decision and failure to take a decision within that period was to be deemed an implied decision rejecting the request.

Next, the Court held that, having regard to the principle of confidentiality laid down in Article 17 of the Staff Regulations, the authorisation received must be interpreted strictly and, in the event of doubt, it is for the person concerned to check whether or not a proposed act of disclosure is indeed covered by that authorisation. In addition, even if an official or agent lawfully forwards a confidential document to a third party under an authorisation to disclose documents, it is his or her responsibility to ensure that that person also complies with the terms of that authorisation. In that regard, it is irrelevant that the publication took place without the participation of the applicant.

Lastly, reiterating the fact that the disclosure of procedural documents by a party to third persons other than for the purpose of pursuing that party’s case constitutes an abuse of procedure, the Court held that it was necessary to take that abuse into account in the costs. As a result, the applicant must be ordered to pay the costs associated with that abuse.