Provisional text
JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
12 May 2016
Case F‑102/15
FS
v
European Economic and Social Committee (EESC)
(Civil service — Temporary staff — Article 41 of the Charter of Fundamental Rights — Right of every person to have access to his or her file — Access to documents concerning an attempt at mediation — Attempt at mediation initiated by the current President of the EESC and conducted under the auspices of a former President of the EESC — Right of access to the report drawn up at the end of the mediation procedure — Administrative investigation opened after the mediation procedure — Article 3 of Annex IX to the Staff Regulations)
Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which FS essentially seeks, first, annulment of the decisions of the President of the European Economic and Social Committee (EESC) of 10 September and 19 November 2014 refusing her access, in essence, to documents exchanged between a member of the EESC and the current President of the EESC and to documents concerning an alleged investigation conducted by that member prior to the opening on 6 October 2014 of an administrative investigation under Article 86 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) concerning her. Secondly, the applicant seeks an order that the EESC compensate her for the non-material harm she claims to have suffered.
Held: The decision of 19 November 2014 of the President of the European Economic and Social Committee (EESC) is annulled in so far as it notifies the refusal to communicate to FS a report concerning her, drawn up by a former President of the EESC at the request of the current President of the EESC. The claims for annulment are redundant as to the remainder. The European Economic and Social Committee is ordered to pay FS a sum of EUR 1000 by way of compensation for the non-material harm she has suffered. The European Economic and Social Committee is to bear its own costs and is ordered to pay the costs incurred by FS.
Summary
1. Officials — Disciplinary measures — Disciplinary proceedings — Observance of the rights of the defence — Obligation to communicate to the official concerned a report drawn up at the end of a mediation procedure and before the opening of an administrative investigation
(Charter of Fundamental Rights of the European Union, Art. 41(2)(b))
2. Actions brought by officials — Actions for damages — Annulment of the contested act not providing appropriate compensation for non-material damage — Award of financial compensation
(Art. 340(2) TFEU)
1. Article 41(2)(b) of the Charter of Fundamental Rights of the European Union provides that every person has the right to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy.
Moreover, the adversarial nature of disciplinary proceedings and the rights of the defence in such proceedings require that the person in question and, as appropriate, his lawyer are able to familiarise themselves with all the facts on which the administration is likely to rely in the decision concluding those proceedings, in sufficient time to submit their observations. Observance of the rights of the defence requires not only that the person concerned be placed in a position in which he may effectively make known his views on the relevant circumstances, but also that he should at least be able to put his own case on the documents taken into account by the institution and which disclose facts important to the exercise of his rights of the defence.
In that regard, when he instructed a member of the institution to conduct a mediation procedure, the current president of the institution acted in his capacity as the authority empowered to conclude contracts of employment. Then, where it is evident from the content of that member’s report that he interviewed a number of the institution’s officials and other staff as well as members of the institution, and that he has included in his report the findings of fact resulting from his investigations, those elements indicate that his activity went beyond mediation and was instead more like an administrative investigation. Similarly, the report has the characteristics of a report on the basis of which the authority empowered to conclude contracts of employment subsequently decided to open an administrative investigation properly speaking.
That being so, it must be considered that the report should also, pursuant to Article 41(2)(b) of the Charter of Fundamental Rights, have been communicated to the applicant, since it comes under the concept of ‘his or her file’ within the meaning of that provision.
(see paras 47, 48, 50-52)
See:
Judgment of 17 March 2015 in AX v ECB, F‑73/13, EU:F:2015:9, para. 115 and the case-law cited therein
2. Although the annulment of an unlawful act may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused, that is not the case where the applicant shows that he has sustained non-material harm that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment.
It is common ground that the feeling of injustice and the anxiety caused by the fact that a person has to conduct a pre-litigation procedure and then a litigation procedure in order to have his rights recognised may, in certain circumstances, constitute harm which may be inferred from the fact alone that the administration committed an unlawful act.
(see paras 58, 59)
See:
Judgment of 7 February 1990 in Culin v Commission, C‑343/87, EU:C:1990:49, paras 27 and 28
Judgment of 6 June 2006 in Girardot v Commission, T‑10/02, EU:T:2006:148, para. 131
Judgments of 19 May 2015 in Brune v Commission, F‑59/14, EU:F:2015:50, para. 80, and 16 July 2015 in Murariu v EIOPA, F‑116/14, EU:F:2015:89, para. 152