Provisional text
JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
8 May 2024 (*)
(Civil service – Members of the temporary staff – Contract of indefinite duration – Termination of the contract – Article 47(c)(i) of the CEOS – Breakdown in the relationship of trust – Failure to establish the facts)
In Case T‑24/23,
UF, residing in Woluwe-Saint-Étienne (Belgium), represented by S. Orlandi, lawyer,
applicant,
v
European Commission, represented by I. Melo Sampaio, acting as Agent,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos (Rapporteur), President, S. Gervasoni and T. Pynnä, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure,
further to the hearing on 30 November 2023,
gives the following
Judgment
1 By his action based on Article 270 TFEU, the applicant, UF, seeks, first, the annulment of the decision of the European Commission of 8 April 2022 by which that institution terminated his contract of indefinite duration as a member of the temporary staff (‘the contested decision’) and, second, compensation for the damage that he claims to have suffered as a result.
Background to the dispute
2 On 16 July 2016, the applicant was recruited by the Commission as a member of the temporary staff within the meaning of Article 2(c) of the Conditions of Employment of Other Servants of the European Union (‘CEOS’), under a contract of indefinite duration.
3 The applicant was a Close Protection Officer of members of the Commission, including Vice-President A and, more recently, Vice-President B (‘the Vice-President’). The applicant’s duties required him to carry a firearm.
4 As part of his duties, the applicant was required to undergo regular virological polymerase chain reaction (PCR) tests to determine whether he was carrying the virus responsible for the COVID-19 pandemic.
5 On 22 October 2021, the applicant underwent a PCR test (‘the PCR test of 22 October 2021’) for a mission in Rwanda.
6 On 25 October 2021, the applicant’s hierarchical superior forwarded him a message received from a doctor from the Medical Service of the Commission (‘the medical service’), in which the doctor asked the applicant’s superiors for information on the facts that were alleged to have taken place during the PCR test of 22 October 2021. According to the nurse who carried out that test, the applicant behaved inappropriately, in particular by ‘shout[ing] “enough, enough”’ and ‘slapping [the nurse’s] hand’, and then leaving without an explanation and without completing that test.
7 On 26 October 2021, the applicant sent an email to his superiors stating that he was shocked by the complaint referred to in paragraph 6 above. He stated that the PCR test in question was longer and more invasive than usual but that he had not hit the nurse. Nevertheless, he apologised to the nurse if he had insulted him or had reacted in a way which might have given him a wrong impression. Furthermore, he added that the Vice-President was there during the PCR test of 22 October 2021 and could certainly attest to those facts.
8 On 28 October 2021, a meeting took place between the applicant, the nurse who had carried out the PCR test of 22 October 2021 and their respective superiors.
9 On 4 March 2022, the applicant underwent a PCR test (‘the PCR test of 4 March 2022’) for a mission in France.
10 On 5 March 2022, the applicant sent an email to the medical service in which he explained that, just like the PCR test of 22 October 2021, the PCR test of 4 March 2022 had been longer and more invasive than usual, that he had experienced pain and irritation all day after that test and that he had even gone to the hospital.
11 On 14 March 2022, the applicant’s firearm was seized by officials from the Security Directorate of the Directorate-General for Human Resources and Security of the Commission (‘the Security Directorate’) and deposited into the armoury of the Commission’s Berlaymont building on the same day.
12 On 23 March 2022, the internal investigations team of the Security Directorate collected written testimonies from the two nurses who had carried out the PCR tests of 22 October 2021 and 4 March 2022.
13 As regards the PCR test of 22 October 2021, the first nurse states in his testimony that, in essence, as he was about to insert the swab into the applicant’s nose, the applicant started to move and shake his head, which made it almost impossible to carry out the test. When the nurse had barely inserted the cotton part of the swab into the applicant’s nose, the applicant slapped his arm and said ‘enough, enough’. The applicant saw that the Vice-President had already completed his test and left with him. As regards the PCR test of 4 March 2022, the second nurse has stated, in essence, that she was with the nurse who had carried out the PCR test of 22 October 2021. He recognised the applicant and told the second nurse that he would test the Vice-President. The second nurse had to carry out two tests, a PCR test and an antigen test. When she tried to carry out the first test, according to her, the applicant did not stop moving his head. She was only able to insert the cotton part of the swab shallowly into the applicant’s nose. After that first test, she told him that she was going to carry out a second test. The applicant stood up and said firmly: ‘Don’t you see you are making my eyes teary?’ The nurse tried to carry out the second test, but that proved impossible because the applicant was moving his head. The applicant then stood up and went over to the Vice-President who had, in the meantime, completed his tests.
14 On 24 March 2022, the applicant received, through ARES, the Commission’s internal IT communication system, a notice of a decision regarding the withdrawal of his rights of access to the Commission’s buildings and his badge.
15 On 24 March 2022, the applicant was asked to attend a meeting with the Director of the Security Directorate, during which he was informed, first, that complaints had been received from the medical service about his behaviour during the PCR tests of 22 October 2021 and 4 March 2022 and, second, that the Security Directorate intended to request the authority empowered to conclude contracts of employment (‘the AECCE’) to terminate his contract for breach of trust.
16 On 30 March 2022, the Director of the Directorate for ‘Human Resources for Specific Sites and Services’ of the Directorate-General for Human Resources and Security of the Commission, in her capacity as the AECCE, sent a letter to the applicant, dated 25 March 2022, informing him of her intention to terminate his contract under Article 47(c)(i) of the CEOS, for breach of trust, as a result of the observations communicated to him at the meeting referred to in paragraph 15 above. She invited the applicant to submit to her any comments within five days.
17 Also on 30 March 2022, the applicant sent an email to the AECCE in which he, first, asked for an extension of the time limit referred to in paragraph 16 above in order to be able to submit his comments on the termination of his contract and, second, submitted his version of the facts concerning the PCR test of 4 March 2022.
18 On 1 April 2022, the applicant’s counsel sent a letter to the AECCE requesting that the applicant be sent the facts on which he was asked to comment so that he could be properly heard. He also disputed the allegations that were made against him in the letter of 30 March 2022.
19 By the contested decision, the AECCE terminated the applicant’s contract as a member of the temporary staff pursuant to Article 47(c)(i) of the CEOS, with a notice period of five months.
20 On 24 June 2022, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
21 By Decision R/303/22 of 20 October 2022, the AECCE rejected the applicant’s complaint.
Forms of order sought
22 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay him a sum set ex aequo et bono by way of compensation for the non-material damage suffered;
– order the Commission to pay the costs.
23 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
The claim for annulment
24 The applicant raises three pleas in law in support of his claim for annulment, the first plea alleging (i) material inaccuracy of the facts giving rise to the contested decision and (ii) manifest errors of assessment and a misuse of powers, the second plea alleging (i) inadequate reasoning, (ii) a breach of the duty to have regard for the welfare of officials, (iii) failure to observe the principle of proportionality and (iv) an infringement of the rights of the defence, and the third plea alleging (i) infringement of Article 2(c) of the CEOS and (ii) infringement of the rights of the defence.
25 In support of the first plea in law, the applicant maintains, in essence, that the contested decision is not based on correctly established facts, and that it is vitiated by several manifest errors of assessment and a misuse of powers.
26 First, as regards the correctness of the facts, the applicant disputes the claims of the AECCE and the version of the facts of the nurse who carried out the PCR test of 22 October 2021.
27 In the first place, the applicant disputes the fact that he left the medical service without having completed that test. He claims that if that had been the case, the nurse would not have been able to ask the laboratory to analyse the sample collected, the applicant would not have received the results of his PCR test and, consequently, he would not have been able to travel for the mission abroad which followed that PCR test.
28 In the second place, the applicant submits that if he had in fact shouted ‘enough, enough’, as the nurse claims he did (see paragraph 6 above), the Vice-President, who was present during the test, would necessarily have heard him. The applicant claims that the Vice-President made a written declaration on honour in which he states that, in his judgement, the applicant did not behave inappropriately.
29 In the third place, the applicant claims that the first nurse’s written statement, which was made five months after the facts, contradicts that of the nurse’s hierarchical superior. According to the applicant, the latter claims that the nurse stated that the applicant had ‘pushed away [his] hand’ and not ‘slapped [his] arm’. Furthermore, in that statement, the hierarchical superior maintains that the nurse was not ‘very upset’ following that incident, but thought it had to be reported due to the ‘physical aspect [of the incident]’. The applicant asserts that that statement is contradictory, since if the nurse had actually been verbally and physically assaulted as he claims, he would not have had that state of mind with regard to the incident. Thus, the applicant maintains that the facts put forward by the Commission are neither coherent nor plausible nor credible.
30 In the fourth place, the applicant claims that the AECCE’s argument that the nurses have the ‘trust’ of their superiors does not mean that the nurses’ versions of the facts are automatically established and that the version that he presented should be rejected. The applicant submits that, when faced with contradictions in the facts, as in the present case, the AECCE should have carried out further investigations to verify the claims at issue.
31 In the fifth place, as regards the evidence on the incidents in question, the applicant maintains that, contrary to the Commission’s argument, the facts could not be established objectively and independently in the light of the testimonies of the nurses from the medical service. As there was no other evidence that the AECCE could have taken into account, in addition to the testimonies of those nurses and the statement of their hierarchical superior, who was not present at the time of the facts at issue, the Commission could not establish the facts ‘objectively and independently’. According to the applicant, the AECCE established the facts relying solely on the nurses’ complaints, which, in his view, are materially inaccurate and on which the contested decision is based.
32 Second, the applicant claims that the AECCE committed several manifest errors of assessment and misused its powers.
33 In the first place, the applicant claims that, contrary to what the Commission alleges, he did not fail to cooperate during the PCR tests of 22 October 2021 and 4 March 2022. He underwent those tests and did not leave until they were completed.
34 In the applicant’s submission, the Commission found that the fact that the applicant had expressed pain and irritation (see paragraph 10 above) amounted to a lack of cooperation. The applicant claims that that statement is also a manifest error of assessment. The applicant maintains, in that regard, that the irritation he expressed was noted by a doctor during a consultation at a hospital’s accident and emergency department following the PCR test of 4 March 2022. He adds that, according to the informal information relayed to the Vice-President, the contested decision is due to the fact that he informed the medical service of the irritation felt after the PCR test of 4 March 2022. That information was taken as an intolerable allegation vis-à-vis the nurse and thus gave rise to the contested decision. According to the applicant, the failure to disclose the real reasons for that decision constitutes a misuse of powers on the part of the AECCE.
35 In the second place, the applicant submits that the fact that the Commission did not take account of the pain and irritation he suffered is a breach of the duty to have regard for the welfare of officials.
36 In the third place, the applicant disputes that he ‘lost his composure’ during the two PCR tests. He acknowledges that he complained about the way in which those tests had been carried out, but the mere fact that the tests were perceived by him as unreasonably invasive, in the light of the numerous other tests that he had previously undergone, cannot justify his dismissal, which is, in any event, wholly disproportionate. Furthermore, the applicant claims that if the AECCE was aiming to call into question his ability to work and his composure, it should have questioned Vice-President A and the Vice-President, for whom he handled stressful and dangerous situations during various missions.
37 In the fourth place, the applicant asserts that four people were present during the PCR test of 4 March 2022, namely himself, the Vice-President, the nurse who carried out the test and the nurse who had carried out the PCR test of 22 October 2021. Thus, given that he disputes the version of the facts of the two nurses in relation to the two incidents, the applicant maintains that the only relevant version of the facts is that of the Vice-President.
38 According to the applicant, the Vice-President could perfectly hear and see the interactions between him and the nurses during the PCR test in question. Given that tests were carried out in rooms separated by only a curtain divider and that the Vice-President had already completed his own test, he could see what was happening whilst the applicant underwent his test.
39 Thus, the applicant asserts that the AECCE’s refusal to take account of the Vice-President’s testimony constitutes, in addition to a manifest error of assessment, additional evidence of a misuse of powers. The applicant claims that, even if the Vice-President were not a direct witness, as the Commission maintains, the AECCE should still have allowed him to be heard in order to dispel any uncertainties in that regard, given that he had clearly stated that the applicant had not behaved inappropriately during the PCR tests at issue.
40 In the fifth place, the applicant claims that the AECCE’s allegation that his behaviour as a whole during the PCR tests of 22 October 2021 and 4 March 2022 undermines the reputation of the service is also a manifest error of assessment. According to the applicant, that allegation is arbitrary and gives rise to a breach of the duty to have regard for the welfare of officials.
41 Lastly, the applicant submits that, as regards the correctness of the facts, the AECCE does not have discretionary power and cannot claim that the details of his behaviour are not decisive factors for the contested decision. According to him, the AECCE relied exclusively on the minutes of the hearings of the applicant, the nurses and their hierarchical superior, and did not seek other evidence in order to establish the facts, in particular by hearing the Vice-President as a witness. Therefore, according to the applicant, it was only the facts concerning the two PCR tests of 22 October 2021 and 4 March 2022 which led to a breakdown in the relationship of trust and those facts are not duly established. Moreover, he adds that the Vice-President confirmed that he had not lost trust in him. Accordingly, the applicant asserts that the contested decision is unlawful, since the Commission could not merely rely on a breakdown in the relationship of trust without having first established the facts on which that decision was based.
42 The Commission disputes the arguments submitted by the applicant. First, as regards the manifest errors of assessment alleged by the applicant (see paragraphs 32 to 40 above), the Commission claims that the contract was terminated following the breakdown in the relationship of trust between it and the applicant. That breakdown resulted from the inappropriate behaviour which the applicant displayed on two occasions during the PCR tests of 22 October 2021 and 4 March 2022, in the course of which he was verbally or physically aggressive towards the nurses from the medical service who carried out those tests.
43 The Commission submits that the applicant’s inappropriate behaviour was established objectively and independently of the content of the nurses’ testimonies. According to the Commission, the details of the applicant’s behaviour are not the decisive factor for establishing a breakdown in the relationship of trust. What is most important is that, on two occasions, the applicant was aggressive towards the nurses from the medical service. The Commission claims that that is not a subjective perception of events, but follows from the duty of the Security Directorate to ensure the safety of its members and of the people present on the Commission’s premises. Accordingly, the AECCE did not commit any manifest error of assessment of the facts.
44 According to the Commission, as a Close Protection Officer, the applicant must demonstrate conduct beyond reproach and be able to maintain his composure at all times, particularly as he carried a firearm in the Commission’s buildings. It adds that, in order to perform those duties, the applicant must have the trust of both the member he protects and of the institution as a whole. It is not enough, as the applicant claims (see paragraph 41 above), to have the trust of the members for whom he performs his duties. Thus, the Security Directorate must be certain that the applicant does not pose the slightest risk to the safety of members and to the other people present on the Commission’s premises. Therefore, according to the Commission, the Security Directorate was right to request the termination of the applicant’s contract.
45 Second, as regards the factual inaccuracy alleged by the applicant, in the first place, the Commission maintains that the nurses had no reason to report inaccurate facts about the applicant and that they have the full trust of their unit. According to the Commission, the incidents in question represent the only incidents reported during the pandemic and were immediately conveyed to the nurses’ hierarchical superior (see paragraph 6 above), even though the formal statement regarding the first incident was not recorded until later.
46 In the second place, the Commission submits that the statements made by the nurses and their hierarchical superior are not contradictory, since the act of slapping an arm or pushing away a hand are not mutually exclusive. In addition, it states that the AECCE did not rely exclusively on the minutes of the hearings of the applicant, the nurses and their hierarchical superior, but took into account the breakdown in the relationship of trust between the Security Directorate and the applicant.
47 The Commission further claims that the fact that the nurse who carried out the test of 22 October 2021 was able to confirm that he was not ‘very upset’ is because he is a professional who knows how to perform his tasks, even under difficult conditions. That shows also that the nurse had nothing against the applicant personally and had no reason to report non-existent facts.
48 In the third place, as regards the applicant’s argument about the alleged real reasons given by the two nurses for their complaints (see paragraph 34 above), the Commission states that those nurses reported the incidents immediately after the facts. Furthermore, the Commission submits that the applicant only went to the hospital after the second PCR test and that, in any event, the documents provided show that he only complained of pain in his face, but did not specify the cause of that pain.
49 In the fourth place, the Commission submits that, since the administration could consider itself sufficiently well informed about the incidents in question, it was not necessary to hear the Vice-President’s testimony. It claims that the exact location of the Vice-President during the PCR tests of 22 October 2021 and 4 March 2022 was not established, in particular whether he was in a different booth to the applicant when the applicant underwent each of the tests at issue or in the area surrounding those booths. It claims, in any event, that those booths were separated and ensured the privacy of the process, with the result that the Vice-President could not be a direct witness to the facts at issue. Accordingly, the Commission claims that his testimony is not relevant.
50 In the fifth place, as regards the PCR test of 22 October 2021, the Commission submits that, although the applicant received the test results, that does not mean that the test was carried out correctly. The nurse was only able to insert the swab shallowly in order to carry out the test before the applicant left and, therefore, he was unable to complete the test. Nevertheless, he sent the sample collected for analysis.
51 In the sixth place, the Commission disputes the fact that four people were present during the PCR test of 4 March 2022, as the applicant alleges (see paragraph 37 above). It claims that the PCR tests were carried out in separate booths, which ensured the privacy of the procedure. Thus, only the applicant and the nurse who carried out the test were present, which is why the Vice-President’s testimony was not relevant.
52 Third, as regards the applicant’s arguments relating to a misuse of powers (see paragraphs 34 and 39 above), the Commission maintains that the applicant does not explain of what that misuse consists. According to the Commission, the applicant adduces no evidence constituting a misuse of powers, in particular as regards the purposes allegedly pursued by the contested decision, other than those stated in that decision. Thus, it claims that the allegations of a misuse of powers should be dismissed as unproven.
53 As a preliminary point, it should be borne in mind that, as regards the procedure for terminating the contract of indefinite duration of a member of the temporary staff, it is apparent from Article 47(c)(i) of the CEOS that the employment is to cease at the end of the period of notice stipulated in that contract. In addition, Article 49(1) of the CEOS provides that, after the disciplinary procedure provided for in Annex IX to the Staff Regulations, which is to apply by analogy, has been followed, employment may be terminated without notice on disciplinary grounds in serious cases of intentional or negligent failure of temporary staff to comply with their obligations.
54 According to settled case-law, on account of the broad discretion enjoyed by the AECCE where there is wrongful conduct capable of justifying the dismissal of a member of the temporary staff, there is no obligation on that authority to initiate disciplinary proceedings against that person rather than using the option of unilaterally terminating the contract provided for in Article 47(c) of the CEOS and it is only if the AECCE intends to dismiss a member of the temporary staff without notice, in a serious case of failure to comply with his or her obligations, that the disciplinary procedure provided for in Annex IX to the Staff Regulations of Officials, which applies by analogy to members of the temporary staff, should be initiated, as provided for in Article 49(1) of the CEOS (see judgment of 16 June 2021, CE v Committee of the Regions, T‑355/19, EU:T:2021:369, paragraph 61 and the case-law cited).
55 It follows that, in principle, the AECCE was entitled to terminate the applicant’s contract on the basis of Article 47(c)(i) of the CEOS, before its expiry and with one month’s notice for each completed year of service, with a minimum of 3 months and a maximum of 10 months, without having to initiate disciplinary proceedings.
56 In the present case, it must be stated that the reason for terminating the applicant’s contract, the notice period of which was complied with, was the breakdown in the relationship of trust between the Commission and the applicant because of the behaviour attributed to him during the PCR tests of 22 October 2021 and 4 March 2022. The AECCE chose to terminate the contract pursuant to Article 47(c)(i) of the CEOS and not pursuant to Article 49(1) of the CEOS.
57 In that regard, while it is not for the AECCE to substitute its own assessment for that of the applicant’s hierarchical superior as regards the reality of the breakdown in the relationship of trust, the AECCE must nevertheless, first of all, check whether the absence or loss of a relationship of trust has indeed been invoked, next, check that the facts have been accurately stated and, lastly, ensure that, in view of the grounds given, the request for termination is not vitiated by a breach of fundamental rights or by a misuse of powers. In that context, the AECCE may, for example, take the view, in the light of the observations made by the party concerned, that special circumstances justify the consideration of measures other than dismissal, such as the assignment of the person concerned to another post in the Commission (see, to that effect, judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 38 and the case-law cited).
58 Furthermore, it must be noted that, where an institution which decides to terminate a contract of a member of the temporary staff refers, in particular, to specific material facts giving rise to the decision to dismiss for loss of trust, the Court is required to check the veracity of those material facts. In particular, in so far as an institution explains the grounds that have resulted in the loss of trust by referring to specific material facts, the Court must check that the facts on which those grounds are based are substantively accurate. In doing so, the Court must not substitute its assessment for that of the competent authority, which considers that the loss of trust has been established, but must confine itself to checking whether the facts referred to by the institution on which its decision was based are substantively accurate (judgment of 11 September 2013, L v Parliament, T‑317/10 P, EU:T:2013:413, paragraph 70).
59 In the present case, the AECCE stated, in the contested decision, that the ground given for the termination of the applicant’s contract was the breach of trust between the applicant and the institution, due to ‘several serious incidents’ in the performance of his duties, of which he was informed, namely his behaviour during the PCR tests of 22 October 2021 and 4 March 2022.
60 In the light of the case-law referred to in paragraphs 57 and 58 above, it is therefore necessary to examine the evidence submitted by the parties in order to establish whether, taken individually and then as a whole, that evidence is such as to confirm or, on the contrary, render unfounded the ground for termination of the contract relied on by the Security Directorate and adopted by the AECCE.
61 In order to dispute the behaviour of which he is accused in the written testimonies of the nurses who carried out the two PCR tests at issue (see paragraph 13 above), the applicant provided, in addition to his version of the facts at issue, a written statement from the Vice-President, who was with him at the PCR tests of 22 October 2021 and 4 March 2022 and who was therefore present in the room in the medical service where the facts at issue occurred.
62 In that regard, first, it must be stated that, during the pre-litigation procedure and in the present action, the applicant called into question the version of the facts of the two nurses who had carried out the PCR tests of 22 October 2021 and 4 March 2022, a version which the AECCE reproduced in the contested decision. The applicant disputes that he was aggressive and that he behaved inappropriately towards those nurses. As regards the PCR test of 22 October 2021, he denies in particular the fact that he slapped the arm or the hand of one of the nurses and that he shouted ‘enough, enough’ (see paragraphs 7 and 29 above). As regards the test of 4 March 2022, he disputes that he behaved inappropriately. Thus, faced with the contradictions between the version of the facts presented, first, by the nurses and, second, by the applicant, the applicant requested, on several occasions, that the Vice-President be heard as a witness (see paragraphs 7 and 39 above).
63 Second, as is shown in paragraphs 49 and 51 above, the AECCE maintained that it had sufficient information about the facts and that it did not need to hear the Vice-President. The Commission submits, in essence, in the first place, that the details of the applicant’s behaviour are not decisive and, in the second place, that that behaviour was established objectively and independently of the specific content of the nurses’ testimonies (see paragraph 43 above). By contrast, as referred to in paragraph 49 above, the Commission claims that the exact location of the Vice-President was not established, that is to say, whether he was in a different booth to the applicant when he underwent each of the tests at issue or in the area surrounding those booths. The Commission contends that the Vice-President could not therefore be a direct witness to the facts.
64 In that regard, it must be stated that the Commission does not specify what other evidence, apart from the testimonies of the nurses in its medical service, it used to establish the facts at issue. Furthermore, it is apparent from the documents before the Court that the only evidence available to the AECCE that could justify the termination of the applicant’s contract was the written testimony of those nurses and their hierarchical superior referred to in paragraphs 12 and 13 above. In addition, it is apparent from the decision rejecting the complaint that those testimonies had decisive evidential value for the AECCE.
65 The Commission does not explain how the applicant’s behaviour could have been established ‘objectively and independently of the specific content’ of those testimonies, as it claims (see paragraph 43 above). It does not rely on any other evidence which could have supported such a claim, even though the only other available evidence, which the applicant annexed to his complaint against the contested decision, is the Vice-President’s written declaration on honour, in which he claims that, in his judgement, the applicant did not behave inappropriately during the tests at issue (see paragraph 28 above).
66 In that regard, in the first place, the Commission, notwithstanding the contradictions between the version of the facts presented by the nurses, on the one hand, and the one presented by the applicant, on the other hand, refused to take additional steps to establish the facts, in particular, as the applicant requested on several occasions, that the Vice-President be heard as a witness. In that regard, the Commission does not dispute that the Vice-President was present in the room in the medical service where the individual booths were in which the PCR tests of 22 October 2021 and 4 March 2022 were carried out. The Commission merely expresses uncertainty as regards the exact location of the Vice-President in the room at the time of the facts at issue.
67 In the second place, it must be stated that the Commission contradicts itself as regards the relevance of the Vice-President’s testimony.
68 First, the Commission claims that the Vice-President’s exact location during the PCR tests at issue has not been established (see paragraph 49 above) and that his testimony is therefore not necessary. Second, it asserts that PCR tests, such as those under discussion in the present case, are carried out in separate booths and that, consequently, the Vice-President could not be a direct witness to the facts (see paragraph 51 above). If the exact location of the Vice-President during the PCR tests at issue was not established, it is contradictory to assert, as the Commission does, that the Vice-President could not, in any event, be a direct witness to the facts that took place during those tests.
69 It follows that the steps taken by the AECCE did not make it possible to establish, in the light of the evidence brought to the Court’s attention, the existence of the behaviour alleged against the applicant, which gave rise to the contested decision on the basis of a breakdown in the relationship of trust between the Commission and the applicant.
70 In the light of those considerations, it must be concluded that the decision of the AECCE is unlawful, since the AECCE found that the nurses’ testimonies provided it with sufficient information and refused to verify the facts giving rise to the contested decision in the light of other evidence which was nevertheless available, or by holding an administrative inquiry.
71 Accordingly, the applicant’s arguments, submitted in support of the first plea in law, alleging that the facts justifying the contested decision have not been established, must be upheld.
72 The contested decision must therefore be annulled, without there being any need to examine the other pleas in law and arguments put forward by the applicant or the investigative measures he requested and the admissibility of the documents that he provided in the reply and on 10 November 2023.
Claim for damages
73 The applicant submits that, because of his unfair dismissal, he suffered significant non-material damage as a result of the breach of his fundamental rights, in particular the infringement of his rights of defence, manifest errors of assessment made by the administration and breach of the duty to have regard for the welfare of officials. The contested decision adversely affected his honour and caused him significant non-material damage, as the Commission refused, in particular, to give him access to the written complaints, to adopt measures to verify the facts and to hear the Vice-President as a witness.
74 The applicant requests, consequently, that the Court order the Commission, ex aequo et bono, to compensate him for that non-material damage.
75 The Commission disputes the applicant’s arguments. It submits that he has not provided any evidence of the non-material damage he alleges to have suffered and that he merely refers to a general attack on his honour.
76 In that respect, as regards the alleged non-material damage, it should be noted that, according to the case-law, the annulment of an unlawful measure may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, unless the applicant shows that he or she has suffered non-material damage which is incapable of being entirely repaired by that annulment (see, to that effect, order of 3 September 2019, FV v Council, C‑188/19 P, not published, EU:C:2019:690, paragraph 4 (position of Advocate General Kokott, point 26), and judgment of 28 April 2021, Correia v EESC, T‑843/19, EU:T:2021:221, paragraph 86).
77 The non-material nature of the damage allegedly suffered is not capable of reversing the burden of proof as regards the existence and the extent of the damage, which lies with the applicant. The European Union can only be held liable if the applicant has succeeded in demonstrating that he or she did in fact suffer damage (see judgment of 16 June 2021, CE v Committee of the Regions, T‑355/19, EU:T:2021:369, paragraph 148 (not published and the case-law cited)).
78 In the present case, the applicant has not explained in what respect there is non-material damage incapable of being entirely repaired by the annulment of that decision. In his written observations, he merely claimed that the contested decision had adversely affected his honour and had caused him non-material damage, without specifying either the content or the extent of that damage, and he did not claim that he had suffered non-material damage incapable of being entirely repaired by the annulment of that decision.
79 It follows that the applicant has not succeeded in demonstrating, as he was required to do in the light of the case-law cited in paragraphs 76 and 77 above, that the non-material damage which he alleges was incapable of being entirely repaired by the annulment of the contested decision, and, as such, reparable.
80 In those circumstances, the claim for damages must be dismissed as unfounded.
Costs
81 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
82 In the present case, as the Commission has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls the decision of the European Commission of 8 April 2022 terminating UF’s employment contract of indefinite duration as a member of the temporary staff;
2. Dismisses the action as to the remainder;
3. Orders the Commission to pay the costs.
da Silva Passos | Gervasoni | Pynnä |
Delivered in open court in Luxembourg on 8 May 2024.
[Signatures]