JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

3 June 2015

Case T‑658/13 P

BP

v

European Union Agency for Fundamental Rights (FRA)

(Appeal — Civil service — Member of the contract staff — Staff of the European Union Agency for Fundamental Rights — Non-renewal of a fixed-term contract for an indefinite period — Right to be heard — Reassignment to another department until expiry of the contract –Assessment of the facts — Distortion of the clear sense of the evidence — Obligation to state reasons)

Appeal:      against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 30 September 2013 in BP v FRA (F‑38/12, ECR-SC, EU:F:2013:138), seeking to have that judgment set aside.

Held:      The judgment of the European Union Civil Service Tribunal (Second Chamber) of 30 September 2013 in BP v FRA (F‑38/12, ECR-SC, EU:F:2013:138) is set aside in so far as it dismissed the application brought against the decision of the European Union Agency for Fundamental Rights (FRA), contained in a letter of 27 February 2012, not to renew BP’s contract of service as a member of the contract staff. The decision of the FRA, contained in a letter of 27 February 2012, not to renew BP’s contract of service as a member of the contract staff is annulled. The remainder of the appeal is dismissed. BP and the FRA are to bear their own costs relating to the proceedings before the Civil Service Tribunal and on appeal.

Summary

Officials — Contract staff — Recruitment — Non-renewal of a fixed-term contract — Adoption of the decision without first giving the person concerned the opportunity to express his views on all the elements available to the administration — Infringement of the right to be heard

(Conditions of Employment of Other Servants, Art. 85(1); Council Regulation No 168/2007, Art. 24(1))

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 of observance of the rights of the defence is particularly important where a decision not to renew the contract of service of a member of the contract staff was adopted against a background of poor personal relations.

Since that principle requires that the person concerned must be afforded the opportunity effectively to make known his views on any information against him which might be taken into account in the measure to be adopted, a decision not to renew a contract of service can only be taken after that person has been given the opportunity effectively to put forward his view concerning the draft decision, in the context of an oral or written exchange of views initiated by the appointing authority, proof of which must be adduced by the latter. In that regard, the person concerned must be able to express his view in full knowledge of all the elements that are available to the appointing authority, and in particular on the content of an opinion of his line manager concerning the renewal, which was sent to that authority. Even if that opinion constitutes a preparatory measure, so that it would not have an adverse effect, that does not preclude the conclusion that, precisely because it is a preparatory measure, it forms part of the acts on the basis of which the appointing authority adopts its decision not to renew the contract of service, so that the person concerned must be heard by the appointing authority on the observations set out in the opinion before the appointing authority adopts its position.

(see paras 51, 52, 56, 57, 61)

See:

Judgments of 24 October 1996 in Commission v Lisrestal and Others, C‑32/95 P, ECR, EU:C:1996:402, para. 21; 9 November 2006 in Commission v De Bry, C‑344/05 P, ECR, EU:C:2006:710, paras 37 and 38 and the case-law cited therein, and 6 December 2007 in Marcuccio v Commission, C‑59/06 P, ECR-SC, EU:C:2007:756, paras 46 and 47

Judgment of 9 July 2002 in Aimone v Court of Justice, T‑70/01, ECR-SC, EU:T:2002:178, para. 36