JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

21 November 2013

Case F‑122/12

Bruno Arguelles Arias

v

Council of the European Union

(Civil Service — Member of the contract staff — Contract of indefinite duration — Termination — Post requiring security clearance — Clearance denied by national security authority — Decision overturned by the review body — Findings of the national security authority and the review body not binding on the AECE)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Arguelles Arias seeks, in essence, annulment of the decision of the authority empowered to conclude contracts of employment (‘the AECE’) of the Council of the European Union of 12 January 2012, communicated on 16 January 2012, terminating his contract as a member of the contract staff with effect from 31 May 2012, and compensation for the material and non-material damage allegedly suffered, estimated provisionally to be EUR 160 181.85 and EUR 25 000, respectively.

Held:      The action is dismissed. Mr Arguelles Arias is to bear his own costs and is ordered to pay those incurred by the Council of the European Union.

Summary

1.      Actions brought by officials — Action against a decision rejecting a complaint — Admissibility

(Staff Regulations, Arts 90 and 91)

2.      Officials — Post requiring EU personnel security clearance — EU personnel security clearance procedure — Security investigation carried out by the national authorities — Whether the findings of the national security authority and the review body are binding — Not binding

(Council Decision 2011/292, Art. 15(2), Annex I, Appendix A)

3.      Officials — Post requiring EU personnel security clearance — EU personnel security clearance procedure — Criteria for access to EU classified information

(Council Decision 2011/292, Annexe I)

4.      EU law — Principles — Rights of defence — Observance thereof in the context of administrative proceedings — Scope

1.      Where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure.

(see para. 38)

See:

21 September 2011, T‑325/09 P Adjemian and Others v Commission, para. 32

2.      The Secretary-General of the Council is the General Secretariat’s security authority and alone is empowered to decide whether to grant or refuse EU personnel security clearance to members of staff of the General Secretariat.

In that regard, the national security authorities or other competent national authorities are responsible for ensuring that security investigations are carried out on their nationals, since those authorities are better placed than the Secretary-General of the Council to access information in the various Member States.

However, the appointing authority, or the authority empowered to conclude contracts of employment in the case of other staff, of the General Secretariat is not bound by the findings of the security investigation carried out by the national authorities, or even by the findings of a review body, and even where the result is favourable to the individual concerned there is no obligation on the appointing authority or the AECE to grant him EU personnel security clearance and they retain the power to refuse him such clearance.

(see paras 53-59)

3.      The security clearance procedure is designed to determine whether an individual, in view of his loyalty, trustworthiness and reliability, may be authorised to have access to EU classified information. The list of security investigation criteria, which appears in Annex I, Section III, point 8, of Council Decision 2011/292 on the security rules for protecting EU classified information, is not exhaustive. Moreover, in addition to the criteria listed in point 8(a) to (k), points 9 and 10 respectively state that an individual’s financial and medical background and a spouse’s, cohabitant’s or close family member’s character, conduct and circumstances may also be considered relevant.

(see para. 68)

4.      Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle, which reflects the requirements of good administration, demands that the person concerned should have been afforded the opportunity to effectively make known his views on any matters which might be taken into account to his detriment in the measure to be taken.

As regards a decision terminating a contract of indefinite duration of a contract staff member, even if the administration does not arrange a meeting between the authority empowered to conclude contracts of employment and the staff member concerned entirely devoted to obtaining the latter’s observations with regard to the proposed termination of his contract and before the adoption of such a decision, the circumstances which surround the adoption and communication of that decision and the procedure followed by the administration in order to respond to the complaint, during the examination of which that decision is reviewed by the authority empowered to conclude contracts of employment in the light of new elements of law and of fact, may afford the staff member concerned the opportunity effectively to make known his views on any matters taken into account to his detriment.

(see paras 91, 99)

See:

8 March 2005, T‑277/03 Vlachaki v Commission, para. 64