JUDGMENT OF THE GENERAL COURT (First Chamber)
13 December 2017 (*)
(Civil service — Members of the contract staff — Fixed-term contract — Article 47(b) of the CEOS — Annulment of early termination decision — Article 266 TFEU — Compliance with a judgment of the Civil Service Tribunal — Adoption of new early termination decision — Retroactive effect)
In Case T‑692/16,
CJ, former member of the contract staff, represented by V. Kolias, lawyer,
applicant,
v
European Centre for Disease Prevention and Control (ECDC), represented by J. Mannheim and A. Daume, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
ACTION brought under Article 270 TFEU seeking, on the one hand, the annulment, first, of the ECDC decision of 2 December 2015 terminating, with retroactive effect as from 30 April 2012, the applicant’s contract as a member of the contract staff and, secondly, of the ECDC decision of 27 June 2016 rejecting the complaint lodged by the applicant against that termination decision and, on the other hand, compensation for the loss allegedly suffered by the applicant,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
I. Background to the dispute
A. Initial facts and proceedings before the Civil Service Tribunal
1 The applicant, CJ, was recruited by the European Centre for Disease Prevention and Control (ECDC) on 1 January 2010 as a member of the contract staff in function group IV, at grade 14, for a period of five years, expiring on 31 December 2014.
2 The applicant was employed as a legal assistant within the Legal and Procurement section of the Resource Management and Coordination unit of the ECDC.
3 On 1 November 2011, Ms B took up her post as head of that section, thereby becoming the applicant’s line manager.
4 By decision of the director of the ECDC communicated to the applicant on 24 February 2012 (‘the initial termination decision’), the applicant’s contract as a member of the contract staff was terminated early with effect from 1 May 2012, under Article 47(b)(ii) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), with a two-month notice period expiring on 30 April 2012 and payment of financial compensation equivalent to one third of the basic salary for the period of the contract that was not completed.
5 The initial termination decision was based, in essence, on the irreparable breakdown in the relationship of trust between the applicant, on the one hand, and the director and other ECDC staff members on the other, which allegedly resulted from the persistent insubordination of the applicant, characterised by serious difficulties in accepting management decisions, repeated refusals to perform tasks entrusted to him as well as obstructive and provocative behaviour. That decision referred, in particular, to the findings of the final report of an administrative inquiry concerning allegations of breach of the obligations arising under Articles 21 and 21a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) by Ms B with regard to the applicant.
6 Furthermore, by email of 22 December 2011, the applicant had informed the director of the ECDC that, in his opinion, irregularities had been committed in the recruitment of a temporary member of staff. The European Anti-Fraud Office (OLAF), upon a referral by that director, decided not to open an inquiry in view of the weakness of the evidence of any irregularities, of which the applicant was informed by letter of 29 June 2012.
7 After lodging an unsuccessful complaint against the initial termination decision, the applicant brought an action before the European Union Civil Service Tribunal seeking annulment of that decision and compensation for the material damage allegedly resulting from that decision. That action was registered as Case F‑159/12.
8 The Civil Service Tribunal ruled on that action and on another action, seeking compensation for alleged non-material damage, brought by the applicant against the ECDC and registered under case number F‑161/12, by the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, ‘the annulment judgment’, EU:F:2015:38).
9 By the annulment judgment, the Civil Service Tribunal annulled the initial termination decision on the basis of the third complaint of the first plea submitted by the applicant in Case F‑159/12, in support of his claim seeking annulment of the initial termination decision, alleging breach of the right to be heard as to the action which the authority empowered to conclude contracts of employment (‘the AECE’) intended to take as a result of the breakdown in the relationship of trust. All the other pleas and arguments put forward by the applicant in support of his actions were examined and rejected.
10 Having regard to the facts alleged in the present action, it should be noted that this was the case, in particular, with regard to the 9th, 11th and 12th pleas in Case F‑159/12, alleging manifest errors in the assessment of the facts, in which the applicant denied (i) that he was responsible for the serious dispute which he had had with Ms B, referred to in the initial termination decision and regarding which he claimed that responsibility had been attributed to him without evidence, (ii) that all the behaviour of which he was accused in the initial termination decision actually took place, in particular a series of acts of insubordination complained of by Ms B, which allegedly took place between 10 January and 24 February 2012, on the basis that Ms B was not credible because, inter alia, she was unsuitable for her role, and (iii) that, in essence, the administrative inquiry concerning allegations of non-compliance with Articles 21 and 21a of the Staff Regulations was impartial, on the ground that exculpatory evidence was systematically omitted by the investigator.
11 In paragraphs 188 to 190 of the annulment judgment, the Civil Service Tribunal first pointed out that the initial termination decision, adopted under Article 47(b)(ii) of the CEOS, was based on the applicant’s conduct which led to the irreparable breakdown in the relationship of trust between the applicant and the ECDC, and that, in that context, the latter’s AECE had wide discretion, the review by the Courts of the European Union being limited to ensuring that there had been no manifest error or misuse of powers. On the other hand, it pointed out that, in the present case, the irreparable breakdown in the relationship of trust between the applicant and his management was due to a series of actions and omissions by the applicant between November 2011 and February 2012, consisting, in particular, of significant difficulty in accepting management decisions, refusing to perform tasks and behaving in an obstructive and provocative manner.
12 In that regard, the Civil Service Tribunal noted, in the first place, in paragraphs 192 to 197 of the annulment judgment, a series of facts establishing that the applicant had repeatedly refused to comply with simple requests or legitimate instructions of the kind which normally cannot call into question the managerial capabilities of the supervisor who has issued those requests or instructions. In the second place, the Civil Service Tribunal noted, in paragraphs 191, 196 and 198 to 202 of that judgment, a series of facts from which it is apparent that the applicant had called into question, repeatedly and in an obstructive and provocative manner, the competence of his immediate superior, Ms B, both as head of unit and as a lawyer.
13 On that basis, the Civil Service Tribunal held, in paragraph 203 of the annulment judgment, that the author of the initial termination decision had not committed a manifest error of assessment of the facts in finding that the applicant had significant difficulty in accepting management decisions and behaved in a provocative manner, thereby leading to an irreparable breakdown in the relationship of trust.
B. Appeal proceedings before the General Court
14 The annulment judgment was appealed by each of the parties.
15 The appeal brought by the ECDC was dismissed by the judgment of 5 October 2016, ECDC v CJ (T‑395/15 P, not published, EU: T: 2016: 598).
16 The appeal brought by the applicant was dismissed by the judgment of 5 October 2016, CJ v ECDC (T‑370/15 P, not published, EU: T: 2016: 599), with the sole exception of the fourth complaint in the fourth ground of appeal, which concerned the annulment judgment insofar as it dealt with the claim for compensation for non-material damage made in the context of the action in Case F‑161/12. That head of claim is currently the subject of Case T‑703/16 RENV.
17 However, the General Court rejected all the appellant’s other grounds of appeal.
C. Measures taken by the ECDC following the annulment judgment
18 Independently of the abovementioned appeals, the ECDC responded to the annulment judgment by letter of 19 May 2015 informing the applicant of its intention to adopt a new decision terminating early the latter’s contract as a member of the contract staff, with retroactive effect from 30 April 2012, because of the irreparable breakdown in the relationship of trust between the applicant and his management, for the reasons set out in the letter of 24 February 2012 containing the initial termination decision, to which he was referred. The applicant made his submissions concerning the proposed decision by email of 31 May 2015. That email contained, in paragraph 2(c), the following passage relating to the duties previously performed by Ms B in the European Union Agency for Law Enforcement Cooperation (Europol):
‘In any event, the verity of the ... allegation of insubordination should be re-examined on the following grounds: Ms [B] was herself summarily dismissed in spring 2014, presumably for grave misconduct ... That puts in doubt her overall credibility. That is all the more so considering, as I assume you are aware, that she had been recruited at ECDC ... on the claim of having worked at Europol for six years as “Senior Legal Counsel” dealing with most fields of competence which her position at ECDC regarded and having managed Europol’s procurement department. In fact, however, she had been a low-ranking member of staff within said department, and had left Europol due to her employer’s dissatisfaction.’
19 Moreover, by an email of 4 September 2015, the applicant informed the ECDC that, by way of a settlement, he could accept as an amicable solution either ECDC’s intervention to facilitate his engagement by another EU organisation, or the payment of compensation in respect of the remaining period of his contract as a member of the contract staff.
20 A new termination decision was notified to the applicant on 2 December 2015 (‘the new termination decision’). He lodged a complaint against that decision by an email of 29 February 2016 (‘the complaint of 29 February 2016’). That complaint was rejected by a decision of the ECDC of 27 June 2016 (‘the decision rejecting the complaint’).
D. The application for revision proceedings
21 By an action of 27 September 2016, the applicant lodged an application for revision of the annulment judgment insofar as it had been held in that judgment that the applicant had acted insubordinately (‘the application for revision’). The applicant argued that, on 27 June 2016, a decisive fact had been discovered in relation to that judgment, namely that Ms B, who shortly after taking up her duties at the ECDC had accused him of questioning her competence and acting insubordinately, and had thus induced the ECDC to dismiss him, had been recruited fraudulently at the ECDC, namely by grossly exaggerating her professional background.
22 The application for revision was declared inadmissible by the order of 27 April 2017, CJ v ECDC (T‑696/16 REV and T‑697/16 REV, not published, EU:T:2017:318). In that order, the General Court found both that the application was out of time and that the alleged fact in support of it could not be considered as being likely, had it been known to the Civil Service Tribunal, to have led it to adopt a different decision to the one adopted in the annulment judgment.
23 In that regard, the General Court found, in paragraphs 45 and 46 of the order dismissing the application for revision, that that application was based on the assumption that Ms B’s lack of professional managerial experience, as alleged by the applicant, would have been such as to change the judgment of the Civil Service Tribunal regarding the ECDC director’s assessment of the applicant’s alleged insubordination and the resulting breakdown in the relationship of trust between him and the ECDC, which was the reason for the initial termination decision.
24 It follows from paragraphs 47, 48 and 53 of that order that the General Court considered, in essence, that the fact alleged by the applicant in support of the application for revision, had it been taken into account by the Civil Service Tribunal, would not have led the latter to find that it undermined the plausibility of the ECDC director’s assessment concerning the breakdown in the relationship of trust connected, in particular, to the insubordination of the applicant and, consequently, to find that that assessment was vitiated by a manifest error, so that the initial termination decision would have been annulled on that ground.
25 The General Court noted, in paragraphs 49 to 52 of the order dismissing the application for revision, that, in accordance with the findings made in the annulment judgment, the applicant’s insubordination had concerned his management, and not only Ms B, that that insubordination had manifested itself with regard to instructions whose relevance had been recognised and that the central question, as regards the assessment of the conduct alleged against the applicant, concerned the fact that the latter had difficulty accepting requests addressed to him, and not the managerial experience or the competence of Ms B.
II. Procedure and forms of order sought
26 By application lodged at the Registry of the General Court on 27 September 2016, the applicant brought the present action.
27 The applicant claims that the Court should:
– annul the new termination decision and, if necessary, annul the decision rejecting the complaint;
– consequently, order the ECDC to pay him an amount corresponding to the contractually agreed remuneration for the period from 1 May 2012 to 31 December 2014, provisionally estimated at EUR 140 000, plus interest at the statutory rate;
– order the ECDC to pay him the sum of EUR 13 000 in compensation for non-material damage;
– order the ECDC to pay the costs.
28 The ECDC contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
29 By decision of 30 May 2017, the General Court (First Chamber) instructed the Judge-Rapporteur to explore the possibilities of settling the dispute by means of an amicable settlement, in accordance with Article 125a(1) and (2) of Rules of Procedure of the General Court.
30 The Court noted the failure of the attempted settlement, of which the parties were informed by letter from the Registry of 9 August 2017.
III. Law
A. The application for annulment
1. The claim for annulment of the decision rejecting the complaint
31 According to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the General Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8; of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43; and of 26 March 2015, CW v Parliament, F‑41/14, EU:F:2015:24, paragraph 40).
32 In the present case, given that the decision to reject the complaint merely confirms the new termination decision, it must be held that the claim for annulment of the decision rejecting the complaint lacks any independent content and that there is therefore no need to rule specifically on it, even if, in examining the lawfulness of the contested decision, the statement of reasons in the decision rejecting the complaint must be taken into account, since that statement of reasons is deemed to be identical with that of the contested decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59 and the case-law cited).
2. The claim for annulment of the new termination decision
33 Having regard to the terms of his application for annulment, it may be considered that the applicant submits, in essence, two pleas, the first of which alleges infringement of Article 266 TFEU and the second a misuse of powers, infringement of Article 22a(3) of the Staff Regulations and failure to state reasons.
34 In addition, the applicant considers that if the new termination decision is annulled, on the ground of its irregularity, the ECDC should be ordered to pay him the remuneration he should have received between 1 May 2012, the day following the effective date of termination of his contract as a member of the contract staff, and 31 December 2014, the date on which the contract should have expired in the absence of early termination, after deduction of the early termination indemnity that he received, that is, an amount provisionally estimated at EUR 140 000.
35 At the outset, it should be noted that the applicant also asserts that, should the new termination decision be annulled in the judgment to be delivered, the correct application of Article 266 TFEU would require the ECDC to renew his contract as a member of the contract staff from 1 January 2015. However, as that assertion is not the subject of a head of claim, the General Court will not rule on it.
(a) The first plea, alleging infringement of Article 266 TFEU
36 By his first plea, the applicant submits that the correct implementation of the annulment judgment required the ECDC to refrain from taking any decision following the annulment of the initial termination decision.
37 That is the case for the reasons given in the four parts of that plea, namely:
– when the annulment judgment was given, in 2015, the factual context was entirely different from that which led to the adoption, in 2012, of the initial termination decision, because, on the one hand, the decision to be adopted now included a financial issue relating to the remuneration due for the period from 1 May 2012 to 31 December 2014 and, on the other hand, the two persons who, it is claimed, were involved in the initial termination decision, namely the director at the time and Ms B, were no longer ECDC staff members (first part);
– the purpose of the applicant’s dismissal, which was to put an end to the disruption of the effective functioning of the ECDC allegedly caused by the applicant’s insubordination, had been achieved in practice, since the applicant had not performed his contract from 1 May 2012 until it expired (second part);
– the objective of avoiding the need to pay additional remuneration for the period from 1 May 2012 to 31 December 2014, assuming such an objective is lawful, could be achieved without a new retroactive dismissal, since the applicant had made a settlement proposal by which all claims in that regard would be waived, so that the new termination decision was, it is claimed, unnecessary and, in any event, disproportionate in view of the disadvantages it implies for the applicant (third part);
– Ms B’s allegations regarding the applicant’s insubordination, it is claimed, lost all credibility in 2015 in the light of certain facts which were then known, namely Ms B’s summary dismissal and the possibility that she had been recruited on the basis of inaccurate information as to her professional experience, so that, by dismissing the applicant solely on the basis of those allegations, the ECDC had committed a manifest error of assessment (fourth part).
38 At the outset, it should be pointed out, first, that the annulment of a measure by the court has the effect of retroactively eliminating that measure from the legal system (see judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84 and the case-law cited).
39 Moreover, under Article 266 TFEU, the institution, body, office or agency whose act has been declared void is required to take the necessary measures to comply with the annulment judgment.
40 The defendant institution is therefore required, pursuant to that provision, to take the necessary measures to reverse the effects of the illegalities found to exist (see order of 29 June 2005, Pappas v Committee of the Regions, T‑254/04, EU:T:2005:260, paragraph 37 and the case-law cited, and judgment of 12 April 2016, CP v Parliament, F‑98/15, EU:F:2016:76, paragraph 59 and the case-law cited).
41 Where the annulled measure has already been implemented, the cancellation of its effects requires, in principle, that the legal situation in which the applicant found himself before the adoption of that measure be reinstated (see judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84 and the case-law cited).
42 Finally, in order to comply with a judgment annulling a measure and to implement it fully, the authority whose measure has been annulled is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact scope of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure. The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred (see order of 20 September 2013, Van Neyghem v Council, T‑113/13 P, EU:T:2013:568, paragraph 21 and the case-law cited).
43 The present plea in law must be examined in the light of those considerations in particular.
(1) The second complaint of the first part and the fourth part in the first plea
44 By the second complaint in the first part of the first plea, the applicant submits that the proper implementation of the annulment judgment required ECDC to refrain from adopting a new decision to dismiss him following the annulment of the initial termination decision, because of the fundamental change in the factual context in 2015 as compared to that in 2012, due to the fact that the only two persons allegedly involved in the initial termination decision, namely, the director of the ECDC, who signed that decision and who stated that he had lost confidence in the applicant, and Ms B, who was the applicant’s line manager and who was, it is claimed, the only person concerned in the context of the investigation into charges of insubordination against the applicant, had left the service.
45 By the fourth part of the first plea, the applicant claims that the very reason for the initial termination decision, namely his insubordination to Ms B, had lost all substance at the time of the adoption of the new termination decision, since the accusations of that person, on which that ground was based, had lost all credibility at that time. It was then known that Ms B had been fraudulently engaged in 2011 by the ECDC on the basis of inaccurate information as to her skills and professional experience and that she was the subject of a summary dismissal in 2014. However, by not taking those factors into account when it examined again the acts of insubordination alleged against the applicant, in 2015, the AECE of the ECDC committed a manifest error of assessment, since it gave credence to accusations, regarding which facts revealed subsequently had shown were not credible, whereas those facts, on the contrary, established, a posteriori, that the doubts expressed by the applicant as to the professional qualities of Ms B were well founded.
46 The ECDC disputes the merits of that complaint and of that part as well as the arguments put forward by the applicant in support of them.
47 In accordance with the case-law referred to in paragraph 42 above, the exact scope of a judgment annulling an act must be determined taking into account the reasons which constitute the necessary support of the operative part of that judgment, in so far as they allow identification of the exact provision considered illegal and show the exact reasons for the illegality found, which the authority concerned must take into consideration when replacing the annulled act.
48 In that regard, it should be noted that the initial termination decision, as referred to in paragraph 47 of the annulment judgment and analysed in the light of its reasons, was in two parts.
49 The first consisted, in essence, of the reasoned finding that the applicant had serious difficulties in accepting management decisions, that he had repeatedly refused to perform the tasks entrusted to him and that he behaved in an obstructive and provocative manner, that this behaviour had been to the detriment of the ECDC and that it opposed the possibility of a normal employment relationship, as a result of which it had appeared to the director of the ECDC that the necessary relationship of trust between the applicant and that director and the other ECDC members of staff had been irreparably damaged.
50 The second part of the initial termination decision was the consequence of that finding, namely the termination of the applicant’s contract as a member of the contract staff pursuant to Article 47 of the CEOS, with effect from 1 May 2012.
51 In that regard, it is important to note that it follows from the annulment judgment, in particular from the response of the Civil Service Tribunal to the 1st, 2nd and 4th complaints in the 1st plea (paragraphs 111 to 121 of the annulment judgment) and the 2nd to 6th, 8th, 9th, 11th and 12th pleas put forward by the applicant in the action brought before that court in Case F‑159/12, in support of his claim seeking the annulment of the initial termination decision (paragraphs 133 to 204 of the annulment judgment), that the first part of the initial termination decision was held to be lawful, including with regard to the right to be heard.
52 In particular, the Civil Service Tribunal held, in paragraph 203 of the annulment judgment, that the director of the ECDC had not committed a manifest error of assessment of the facts in finding, in the initial termination decision, that the applicant had significant difficulty in accepting management decisions and had behaved in a provocative manner, thereby leading to an irreparable breakdown in the relationship of trust. It also appears from the documents referred to in paragraphs 90 and 116 of the annulment judgment that the applicant’s behaviour concerned not only his line manager, Ms B, but also his line manager’s hierarchical superior and, more generally, the ECDC as a whole.
53 Having regard to all of the abovementioned grounds of the annulment judgment, taking into account, on the one hand, the judgment of 5 October 2016, CJ v ECDC (T‑370/15 P, not published, EU:T:2016:599), to the extent that it dismissed the appeal brought by the applicant against the annulment judgment in so far as the appeal concerned the assessments set out in those grounds, and, secondly, the order of 27 April 2017, CJ v ECDC (T‑696/16 REV and T‑697/16 REV, not published, EU:T:2017:318), having rejected the application for revision of the annulment judgment lodged by the applicant, it must be held that the Civil Service Tribunal did not intend to call into question all the stages of the adoption of the initial termination decision, but only criticised that decision insofar as the applicant had not been heard with regard to the consequences that the AECE of the ECDC intended to draw from the finding that the necessary relationship of trust between him and the ECDC had been irreparably damaged (see, by analogy, judgment of 17 April 2007, C and F v Commission, F‑44/06 and F‑94/06, EU:F:2007:66, paragraphs 42 and 43), and therefore that it was definitively held that the applicant had serious difficulty in accepting the management decisions and had behaved provocatively, resulting in the abovementioned irreparable breakdown in the relationship of trust. Therefore, the first part of the initial termination decision must be definitively regarded as lawful. However, in so far as the new termination decision merely sets out, in that regard, a reminder and confirmation of the facts and assessments already stated in the initial termination decision, expressly referred to in the letter from the ECDC of 19 May 2015 inviting the applicant to submit his observations on the new dismissal decision which it envisaged adopting, the applicant cannot call into question those facts and assessments in the context of the present action.
54 On the other hand, it follows from the annulment judgment, and more specifically from the response of the Civil Service Tribunal to the third complaint submitted by the applicant in its first plea in Case F‑159/12, in support of its claim for annulment of the initial termination decision (paragraphs 122 to 131 of the annulment judgment), unsuccessfully criticised by the ECDC in its appeal dismissed by the judgment of 5 October 2016, ECDC v CJ (T‑395/15 P, not published, EU:T:2016:598), that only the second part of the initial termination decision was unlawful on the ground that the applicant had not been heard regarding the consequences that the AECE of the ECDC intended to draw from the applicant’s behaviour, whereas the early termination of the contract as a member of the staff constitutes an act of extreme seriousness.
55 Consequently, since it appears that the new termination decision is based on the irreparable breakdown of the relationship of trust between the applicant and the ECDC linked to the applicant’s behaviour described in the initial termination decision, as that breakdown was noted on the date of that decision, that is, on 24 February 2012, the applicant cannot call into question the reality of that breakdown or the reasons for it, as such a challenge would contradict the binding effect of res judicata attached to the annulment judgment and the confirmatory nature, in that respect, of the new termination decision.
56 In addition, it should be recalled that the annulment of a decision has a retroactive effect which requires the authority to adopt a new decision placing itself at the date of issue of the annulled decision (see, to that effect, judgment of 26 May 2011, Kalmár v Europol, F‑83/09, EU:F:2011:66, paragraph 89 and the case-law cited).
57 Finally, for the sake of completeness, it must be pointed out that the evidence relied on by the applicant is not such as to affect the finding of the breakdown of trust noted in the initial termination decision.
58 As regards, first, the second complaint in the first part of the first plea, by which the applicant relies on the consequences that should be drawn, concerning that breakdown of trust, from the fact that Ms B and the director of ECDC, who signed the initial termination decision, had meanwhile ceased to hold office in the ECDC, it must be pointed out that the part of the initial termination decision not annulled by the annulment judgment found a breakdown in the relationship of trust, not only between the applicant and Ms B and the director of the ECDC, but in relation to all the staff members of the ECDC, so that, in any event, the fact that the two aforementioned persons had left the service was not such as to fundamentally alter the observation made in 2012. Moreover, that finding leads to the conclusion that the applicant’s argument that the ECDC could not refer to his appraisal report for 2011, in order to establish that the behaviour for which he was criticised also concerned individuals other that Ms B, is ineffective.
59 Secondly, the fourth part of the first plea in law, in which the applicant postulates the consequences that might be drawn from the fact that Ms B’s charges of insubordination had lost all credibility having regard to evidence concerning her and which it is claimed had been revealed or occurred subsequently, it should be noted that that evidence, namely of the alleged inexperience and professional incompetence of Ms B, are irrelevant as to her capacity as the applicant’s line manager in the ECDC and as to the merits of the instructions which she had given him in that capacity and which the applicant had called into question, and thus as to the reality of the insubordination of which he was accused. It is clear from the annulment judgment that several of those instructions were incidentally held to be well founded, both by the Civil Service Tribunal, in relation to the instructions referred to in paragraph 197 of the annulment judgment, and by Ms B’s line manager, who the applicant had requested to confirm certain instructions pursuant to Article 21a of the Staff Regulations.
60 Accordingly, the second complaint of the first part and the fourth part of the present plea must be rejected as unfounded.
(2) The first complaint of the first part and the second and third parts of the first plea
61 By the first complaint in the first part of the first plea, the applicant submits that the proper implementation of the annulment judgment required the ECDC to refrain from making a new decision to dismiss him following the annulment of the initial termination decision, as it was impossible for the ECDC to place itself in the situation which prevailed at the moment of its adoption.
62 As a result of the passage of time, the ECDC no longer had free will as regards the appropriateness of the early termination of the applicant’s contract, since the adoption, in 2015, of a decision with another scope would have required payment to the applicant of remuneration for the period between 1 May 2012, the date when the initial termination decision, which had been annulled, took effect, and 31 December 2014, the normal expiry date of his contract as a member of the contract staff.
63 By the second part of the first plea, the applicant asserts that the only objective that could justify the initial termination decision, namely to cease the disruption of the proper functioning of the ECDC which was linked to the applicant’s presence within it, had been achieved, in fact, since his contract, the normal date of expiry of which was 31 December 2014, had ceased to be performed from 1 May 2012, so that a new dismissal decision with retroactive effect would not have been necessary to achieve that objective.
64 By the third part of the first plea, the applicant submits that, since he had proposed, in September 2015, to waive any remuneration provided that the ECDC facilitated his engagement in another EU institution, body, office or agency, for example by refraining from taking a new decision terminating his contract, the ECDC could not justify the adoption of such a decision with the objective of avoiding having to pay the applicant a backlog of remuneration, even assuming that such an objective is lawful. In any event, in that context, the new termination decision is, it is claimed, a disproportionate measure, having regard to the implications for the applicant’s possibilities of finding a job with an EU institution, body, office or agency.
65 The ECDC disputes the merits of those parts or complaint and the arguments put forward by the applicant in support of them.
66 It should be noted that, in accordance with the case-law referred to in paragraph 38 above and in the light of the considerations set out in paragraph 54 above, the annulment judgment had the effect of removing retroactively, on the date of the initial termination decision, that is on 24 February 2012, the second part of that decision, by which the AECE of the ECDC had decided that the finding of an irreparable breakdown in the relationship of trust between the applicant and the members of staff of the ECDC relating to the applicant’s behaviour described in that decision had to result in the termination of the applicant’s contract as a member of the contract staff on 30 April 2012 in accordance with Article 47(b)(ii) of the CEOS.
67 Therefore, following the annulment judgment, that contract was deemed not to have ended, subject to the measures incumbent upon the ECDC to implement that judgment, in order to reverse the effects of the illegality found to exist, namely the infringement of the applicant’s right to be heard as to the consequences of the finding of an irreparable breakdown of the relationship of trust between the applicant and the ECDC staff members connected with the applicant’s behaviour.
68 In that regard, it is common ground that, on 19 May 2015, the ECDC informed the applicant of its intention to adopt a new decision terminating his contract as a member of the contract staff, with retroactive effect from 1 May 2012, inviting him to submit observations on that intention, which the applicant did on 30 May 2015, after which the new termination decision was adopted.
69 By the first complaint in the first part and the second and third parts of the first plea, which do not contradict the res judicata of the annulment judgment, the applicant thus submits that the new termination decision is unlawful, as compliance with Article 266 TFEU would have required the ECDC to refrain from adopting a new decision following that judgment.
70 It is necessary, therefore, to consider whether the new termination decision is vitiated by the irregularities relied on by the applicant in so far as, on the basis of the regular factual statement set out in the initial termination decision and confirmed in the new termination decision, it rules that the applicant’s contract as a member of the contract staff should be terminated retroactively, with effect from 1 May 2012.
71 As regards the first complaint in the first part of the first plea, it must be noted that it amounts to claiming that an authority which has adopted, pursuant to Article 47 of the CEOS, a dismissal decision subsequently annulled on any ground whatsoever could not adopt a new dismissal decision with retroactive effect, on the ground that there is an irrefutable presumption that such a decision is motivated not by the implications of the behaviour of the staff member concerned, but by a desire on the part of the institution, body, office or agency that employed him not to be liable to remunerate that agent for all or part of the period elapsed since the entry into force of the annulled dismissal decision.
72 However, such a presumption does not exist.
73 On the contrary, in such a situation, the authority concerned is required to take the necessary measures to comply with the judgment annulling the dismissal decision placing itself on the date on which it was adopted and it is not precluded that the authority shall again adopt a decision terminating the contract of the staff member concerned or confer on such a decision retroactive effect, at least where the annulment of the initial decision was based on a procedural flaw (see, to that effect, judgment of 26 May 2011, Kalmár v Europol, F‑83/09, EU:F:2011:66, paragraphs 89 to 92 and the case-law cited).
74 It should be added that, depending on the nature and scope of the new decision adopted to replace a termination decision that has been annulled, the fact that there may or may not be a remuneration debt is merely a consequence of that new decision.
75 It follows that the first complaint in the first part of the first plea must be rejected as unfounded.
76 By the second and third parts of the first plea, the applicant submits, in essence, that the adoption of the new termination decision, with the retroactive effect which it entails, cannot be justified by the objectives pursued by that decision. It was not necessary either to put an end to the disruption related to the insubordination with which he was accused, which had in practice ceased as soon as the initial termination decision took effect, or to prevent the ECDC from having to pay him the remuneration due to him as a result of the annulment of the initial termination decision, since the applicant had proposed to waive it in the context of the settlement proposed in his email of 4 September 2015.
77 In that regard, it should be noted that, in accordance with the case-law referred to in paragraphs 40 and 42 above, following the annulment judgment, the ECDC was required to take the measures necessary to remedy the illegality found in that judgment by referring not only to its operative part, but also to the grounds necessarily given in support of it, in order to identify the exact reasons for that unlawfulness, so that the procedure for replacing the annulled measure could be resumed at the very point at which the illegality occurred.
78 As has been pointed out in paragraphs 51 to 54 above, the annulment judgment invalidated the second part of the initial termination decision, relating to the consequences that the AECE of the ECDC had drawn from the finding of an irreparable breakdown in the relationship of trust related to the applicant’s behaviour, which finding constituted the first part of that decision and which had also been disputed by the applicant, but concerning which the Civil Service Tribunal had not found any unlawfulness.
79 By contrast, in paragraphs 128 to 130 of the annulment judgment, the Civil Service Tribunal found that the AECE of the ECDC had not considered any solution to the insubordination found to have been committed by the applicant other than the termination of his contract, while it could not be ruled out that, if the applicant had been heard, he could have persuaded that authority to adopt a different decision, without that court ruling, however, on whether any other solutions were feasible.
80 In that regard, it is appropriate to recall that the content of the fundamental right to be heard requires that the person concerned has the opportunity to influence the decision-making process in question, which is likely to ensure, inter alia, that the decision is the outcome of an appropriate balancing of the interests of the service and the personal interests of the individual concerned (see, to that effect, judgment of 2 July 2014, Psarras v ENISA, F‑63/13, EU:F:2014:177, paragraph 41 and the case-law cited), which must be considered in the context of the AECE’s duty of care when considering the possibility of adopting a dismissal decision (see, to that effect, judgment of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 91).
81 In the present case, following the annulment judgment, the applicant was invited to submit his observations on the ECDC’s intention to adopt a new dismissal decision as a result of the irreparable breakdown in the relationship of trust between the applicant and his management and to confer retroactive effect on that decision. The applicant replied by email of 31 May 2015. In that email, in addition to expressing various doubts as to the legality of such a decision and denials as to the reality of the behaviour with which he was accused, he referred, on the specific question of the consequences to be drawn by the AECE of the ECDC in respect of that irreparable breakdown in trust, in particular, to the fact that he had married in 2014, that he had a child, that finding new employment was problematic and that his wife was unemployed, so that his dismissal would be an excessive and inappropriate measure, and that other unspecified measures should be considered.
82 In that regard, it should be recalled that the AECE has a wide margin of discretion in the application of Article 47 of the CEOS. Admittedly, when determining whether a particular circumstance or fact justifies terminating the employment of a member of staff, the AECE must take account of the interests of the service, but also, in order to fulfil its duty of care, of the interest of the staff member concerned. Nevertheless, the AECE enjoys a broad discretion in assessing the interests of the service, so that the EU judicature must restrict itself to determining whether it has remained within reasonable limits and did not use its discretion in a manifestly erroneous manner (see, to that effect, judgments of 8 September 2009, ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 215 and the case-law cited, and of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 91).
83 By the second and third parts of the first plea, the applicant seeks the annulment of the new termination decision, not on the ground that it is based on a manifest error of assessment relating to the personal reasons which he had set out in his email of 31 May 2015 but, in essence, because it cannot be considered to be in the interest of the ECDC since, first, his contract as a member of the contract staff had ended on its agreed expiry date, that is on 31 December 2014, and, secondly, he had offered to waive any backlog of remuneration, so that, after that date, it was not necessary to adopt a new dismissal decision to replace the initial termination decision in order to achieve the objectives that the ECDC might have.
84 It must be held that the argument thus put forward amounts again to calling into question the case-law referred to in paragraph 73 above, under which it cannot be excluded that a new dismissal decision may be adopted. In fact, in the logic of the applicant’s argument, the adoption of a new dismissal decision to replace an annulled dismissal decision would be permissible only if the normal term of the contract concerned had not expired in the meantime and only for the part of that contract subsequent to the new dismissal decision. However, in accordance with the abovementioned case-law, it cannot be ruled out that a new dismissal decision, intended to replace a previous dismissal decision which was the subject of an annulment judgment, has retroactive effect from the date of the annulled decision.
85 In that regard, it must be borne in mind that an authority required to take the necessary measures to comply with an annulment judgment can confer retroactive effect on the measure which it adopts in order to replace the annulled decision only if such retroactive effect is necessary to achieve the objective pursued by the measure in question and respects the legitimate expectations of the person or persons concerned by that measure (see, to that effect, judgment of 10 November 2010, OHIM v Simões Dos Santos, T‑260/09 P, EU:T:2010:461, paragraph 48 and the case-law cited).
86 In the present case, the applicant, who does not claim that the retroactive nature of the new termination decision infringed the principle of the protection of legitimate expectations, therefore argues that such retroactivity would not be indispensable in order to achieve the objectives of that decision, namely to put an end to the disruption related to his behaviour and, alternatively, to avoid having to pay him the remuneration related to his contract as a member of the contract staff for the period after 30 April 2012.
87 It should be noted, however, that the applicant is mistaken as to the purposes of the new termination decision.
88 Indeed, the essential objective of that decision was to draw the appropriate contractual consequences from the irreparable breakdown of the trust between the ECDC and the applicant, related to the insubordination of the applicant, for the reasons which had been regularly recorded in the first part of the initial termination decision, after having remedied the unlawfulness found in the annulment judgment by inviting the applicant to submit his observations on the measure envisaged, in such a way that his personal interest is also weighed up, to the extent that this may be regarded as legitimate.
89 In the context of the present case, as regards the appropriate contractual consequences of the irreparable breakdown of trust between the ECDC and the applicant, it must be borne in mind that the initial termination decision, which the ECDC expressly referred to in the letter sent to the applicant on 19 May 2015, stated that the applicant’s behaviour was not compatible with ECDC values and constituted a negation of the possibility of a working relationship, leading to the conclusion that the necessary relationship of trust between the applicant and the ECDC as a whole had been irreparably damaged.
90 It must be emphasised that mutual trust is a necessary element for the performance of contracts of members of the contract staff, so that, except in the event of manifest error of assessment or misuse of powers, the administration, which has a wide discretion in that respect, is in principle justified in adopting a dismissal decision where there is a breakdown in the relationship of trust (see, to that effect, judgments of 12 December 2000, Dejaiffe v OHIM, T‑223/99, EU:T:2000:292, paragraphs 63 and 64, and of 7 July 2011, Longinidis v Cedefop, T‑283/08 P, EU:T:2011:338, paragraphs 83 and 84). Consequently, where that relationship has irreparably broken down, unless there are exceptional circumstances, the possible limits to the action of the administration stemming from the duty of care cannot prevent the adoption of a dismissal decision based on that ground.
91 In that regard, it must be pointed out, first, that the personal circumstances referred to by the applicant in his email of 31 May 2015, when he was invited to submit his observations on the ECDC’s intention to adopt a new dismissal decision, the effects of which would go back to the effective date of the initial termination decision, namely that he was a lawyer and that his income was the only income of the household that he formed part of with his wife and their child, are not exceptional circumstances, but correspond to a relatively common economic situation, the assessment of which is not likely to fundamentally change due the fact that he resides with his family in Greece, as the difficult economic context of that Member State concerns its entire population. Furthermore, those personal circumstances are subsequent to the date at which the AECE of the ECDC had to place itself in order to adopt a new decision, in accordance with the case-law referred to in paragraph 56 above.
92 Secondly, in the email of 31 May 2015, the applicant merely stated that alternatives to dismissal should be considered, but without giving details. In that regard, it may be recalled that, in his appeal in Case F‑159/12, he had mentioned other measures which, in his view, would have been possible, but regarding which the Civil Service Tribunal had found, in paragraph 208 of the annulment judgment, that they all presupposed, at the very least, the possibility of restoring a relationship of trust which had been broken, so that the decision to terminate the applicant’s contract could not be considered a disproportionate measure.
93 In view of that finding, which the General Court agrees with, as well as the necessary nature of the relationship of trust in the context of the performance of a contract of members of the contract staff, it must be held that, having regard to the other measures referred to by the applicant, the AECE of the ECDC neither made a manifest error of assessment in considering that the termination of the applicant’s contract was the only appropriate contractual consequence that could be drawn from the irreparable breakdown in the relationship of the trust noted in this case, nor, in so doing, did it adopt a disproportionate measure.
94 Such a measure in itself required, in the circumstances of the case, that it be adopted retroactively, first, so as not to be rendered meaningless and, secondly, to ensure a logical coincidence with the moment at which the factual situation, on which that measure was based, had been regularly recorded. That was possible, in accordance with the case-law referred to in paragraph 85 above, since, in the circumstances of the case, the retroactive effect of the replacement measure was not such as to frustrate the legitimate expectations of the applicant. On the other hand, the applicant’s argument, that the ECDC could not have adopted a new dismissal measure with retroactive effect, amounts to denying the very existence of a duly recorded irreparable breakdown in the relationship of trust resulting from his behaviour (see, by analogy, judgment of 17 April 2007, C and F v Commission, F‑44/06 and F‑94/06, EU:F:2007:66, paragraph 46).
95 It follows from all of the foregoing considerations that, contrary to the applicant’s contention in the second part of the first plea, it cannot be considered that the sole purpose of the new termination decision was to put an end to the disruption in the functioning of the ECDC service caused by the applicant’s behaviour and that that decision is incompatible with that objective.
96 Likewise, it cannot be considered that the non-payment of the remuneration provided for in the applicant’s contract as a member of the contract staff between 1 May 2012, the date on which the initial termination decision took effect, and 31 December 2014, the normal termination date of that contract, was an objective of the new termination decision, that non-payment being merely an effect of a decision based on other considerations.
97 Consequently, the fact that the applicant had submitted a settlement proposal in which he suggested waiving such remuneration cannot be regarded as capable of depriving the new termination decision of its intended effect.
98 In the light of all the foregoing considerations, the first complaint of the first part and the second and third parts of the present plea and, therefore, that plea in its entirety, must be rejected as unfounded.
(b) Second plea, alleging misuse of powers, infringement of Article 22a(3) of the Staff Regulations and failure to state reasons
99 By the first part of his second plea, the applicant submits that the termination of his contract was motivated not by his insubordination and the irreparable breakdown in the relationship of trust resulting from that, but by the desire to retaliate against him because he had reported facts likely to call into question the financial management of the ECDC, relating to work services which, it is claimed, had been unlawfully provided to the ECDC under a contract concluded with an interim agency.
100 By the second part of that plea he argues that, in any event, in that context, the termination of his contract is unlawful under Article 22a(3) of the Staff Regulations.
101 In that regard, the applicant states that he reiterates his seventh plea in support of his claim for annulment of the initial termination decision, in Case F‑159/12, which, he claims, had been declared inadmissible, at paragraph 88 of the annulment judgment, on the ground that it had been formulated in part in the annexes to the application instituting proceedings, the relevant passages of which are now reproduced in the application by which he brought the present action.
102 Finally, by the third part of the second plea, the applicant alleges that, since he raised that objection in the context of the complaint of 29 February 2016, the ECDC, by failing to respond to it in the decision rejecting the complaint, infringed its obligation to state the reasons for that decision.
103 The ECDC disputes the merits of that plea and the arguments put forward by the applicant in support of it.
104 As regards the first part of the present plea, it must be held that it follows both from the ECDC letter of 19 May 2015, inviting the applicant to submit his observations on the decision that it intended to adopt to replace the initial termination decision and on the terms of the new termination decision, that it is expressly based on the irreparable breakdown of the relationship of trust between the applicant and the ECDC, which is linked to the applicant’s behaviour, as recorded in the initial termination decision. In that regard, it should be noted that the abovementioned letter of 19 May 2015 expressly referred to the statement of facts contained in the initial termination decision, the main terms of which, in that respect, were recalled and reproduced in the new termination decision.
105 It must also be borne in mind that the reality of the conduct alleged against the applicant and the regularity of the ECDC’s assessment that it resulted from an irreparable breakdown of the relationship of trust between it and the applicant were noted in the annulment judgment.
106 It should be noted that, in paragraph 91 of the annulment judgment, the Civil Service Tribunal has already found that the allegation of misuse of powers in relation to the initial termination decision was based on mere conjecture.
107 In the light of such elements, the applicant’s allegations that the new termination decision was based on the desire to retaliate against him are implausible and, in any event, devoid of evidential value. In that regard, it should be borne in mind that a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (see judgment of 5 December 2006, Angelidis v Parliament, T‑424/04, EU:T:2006:376, paragraph 72 and the case-law cited). In the present case, there is nothing to indicate that the ECDC relied on considerations other than those relating to the applicant’s insubordination.
108 Accordingly, the first part of the second plea must be rejected as unfounded.
109 As regards the second part of that plea, Article 22a(3) of the Staff Regulations lays down the rule that, in so far as he has acted in good faith, an official who has informed his superiors of facts of which he has become aware in the course of, or in connection with, the performance of his duties which give rise to a presumption of the existence of possible illegal activity, or of conduct relating to the discharge of professional duties which may constitute a serious failure to comply with the obligations of officials of the Union, shall not suffer any prejudicial effects on the part of the institution.
110 Nevertheless, it must be borne in mind that that provision does not offer the official protection against any decision capable of adversely affecting him but only against decisions connected with the accusations made by him (see judgment of 11 July 2013, AN v Commission, F‑111/10, EU:F:2013:114, paragraph 90 and the case-law cited).
111 Accordingly, since it follows from the answer to the first part of the present plea that the applicant has not shown that the new termination decision was related to the reporting of irregularities which, in his view, had been committed in the recruitment of a temporary member of staff, it must be held that Article 22a(3) of the Staff Regulations is not applicable.
112 Therefore, the second part of the second plea must be rejected as unfounded.
113 As regards the third part of the second plea, it must be held that, at paragraph 33 of his application, the applicant refers to paragraphs 25 and 27 of his complaint of 29 February 2016. These last two points appear, together with paragraph 24 of that complaint, under the heading ‘Insufficient reasoning’. In paragraph 24, it is alleged that the ECDC left unanswered most of the factual arguments which the applicant had presented in his complaint following the initial termination decision. Paragraph 25 of the complaint of 29 February 2016 concerns numerous arguments which the applicant claimed to have made in Cases F‑159/12 and F‑161/12, identified by references to certain passages of the annulment judgment or of the appeal which he brought against that judgment, alleging that the Civil Service Tribunal had failed to examine them. Paragraph 26 of the complaint of 29 February 2016 criticised the AECE of the ECDC for failing to reply to the allegations and arguments concerning the employment history of Ms B which the applicant had mentioned in point 2(c) of his email of 31 May 2015. Finally, in paragraph 27 of the complaint of 29 February 2016, the applicant stated that, ‘[b]y failing to consider, in the [new termination] decision, the abovementioned arguments which show[ed] that [he had not acted] insubordinately, ECDC breached its duty to state sufficient reasons, subsidiarily its duty of care, subsidiarily committed a manifest error of assessment. In any case [he] again [referred] to the above arguments and ask[ed] that they be properly examined and accepted’.
114 However, such an overall reference to multiple arguments or complaints, the content of which, for the most part, is not set out, even in summary terms, cannot be regarded as sufficient, considering its lack of precision and generality, to create a specific obligation on the part of the authority concerned to state reasons. This is the case, in particular, with regard to the complaint to which the applicant refers in this part, which is alluded to only by reference to paragraph 88 of the annulment judgment, in which that complaint is only mentioned by indicating the provisions allegedly infringed, the Civil Service Tribunal having merely stated that it was not supported by any argument.
115 For the sake of completeness, it should be noted that, although the statement of reasons must indicate clearly and unequivocally the reasoning of the institution, it must be assessed on the basis of the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not, moreover, necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (see judgment of 11 July 2007, Sison v Council, T‑47/03, not published, EU:T:2007:207, paragraph 188 and the case-law cited)
116 It follows that a statement of reasons does not need to be exhaustive, but, on the contrary, must be considered sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169, and of 3 March 2010, Freistaat Sachsen v Commission, T‑102/07 and T‑120/07, EU:T:2010:62, paragraph 180).
117 On the one hand, as is clear from the reply to the first two parts of the present plea, the reasons for the applicant’s dismissal had been clearly stated on several occasions and both the reality and legality of those reasons had been the subject of prior judicial recognition. Accordingly, the circumstances of the case and the express reasoning of the measure in question did not give rise to any reasonable doubt as to the fact that the termination of the applicant’s contract had a single cause, namely the irreparable breakdown in the relationship of trust between the ECDC and the applicant resulting from the behaviour of the latter, thus excluding any other cause whatsoever, including alleged retaliation for the reporting of alleged irregularities, as was already apparent from paragraph 90 of the annulment judgment concerning the initial termination decision.
118 On the other hand, as regards the legal context to be taken into consideration, which includes the rules recalled above in connection with the examination of the first two parts of this plea, the AECE of the ECDC was all the more justified in considering that the applicant was perfectly aware of this since he is a lawyer by profession. In addition, this context had been the subject of a judicial overview, which had revealed, in particular, that the argument that the applicant’s initial dismissal was motivated by a desire for retaliation was based solely on pure and implausible speculation, as is apparent from paragraph 91 of the annulment judgment, and nothing had subsequently occurred in connection with the reporting in question, so that nothing suggested that the analysis should be modified in that regard.
119 Consequently, the third part of the second plea and, therefore, the second plea in its entirety, must be rejected as unfounded.
120 Having regard to all of the foregoing considerations, the claim for annulment and, consequently, the claim that the ECDC be ordered to pay the applicant the sum, provisionally estimated at EUR 140 000, corresponding to the contractually agreed remuneration for the period from 1 May 2012 to 31 December 2014, must be dismissed.
B. The claim for damages
121 In his claim for damages, the applicant is seeking an order requiring the ECDC to pay him a total sum of EUR 13 000, made up as follows:
– a sum of EUR 10 000 in compensation for the non-material damage resulting from the failure to comply with the annulment judgment;
– a sum of EUR 3 000 in compensation for the non-material damage resulting from the statements made in the decision rejecting the complaint that the applicant sought to promote nepotism.
122 As regards the first head of claim for damages, it must be held that this is based on the premiss that the applicant’s claim for annulment is well founded. Since that claim must be dismissed, that head of claim must also, as a consequence, be dismissed as unfounded (see, to that effect, judgment of 30 April 2014, López Cejudo v Commission, F‑28/13, EU:F:2014:55, paragraph 105 and the case-law cited).
123 As regards the second head of claim for damages, the applicant alleges, as a fault incurring the liability of the ECDC, the use of the term ‘nepotism’ in the decision rejecting the complaint in the following passage: ‘Furthermore, as you were informed in the [new termination decision], it is clear that it is not possible for the Centre to “facilitate” your recruitment by another EU Agency for several reasons. On the one hand, it is contrary to the Agencies’ recruitment rules to interfere in other Agencies’ recruitment processes and promote nepotism (which you seem to suggest) ...’
124 In that regard, it should be pointed out that, in a claim for damages brought by an official or other member of staff, the European Union can be held liable for damages only if a number of conditions are satisfied: the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered (see, to that effect, judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 52 and the case-law cited).
125 In the first place, the word ‘nepotism’ does have a negative connotation of the misuse that a person holding a position makes of his authority or influence in order, for example, to provide employment for people who are related to him.
126 However, on the one hand, it can be assumed that that word was used in the present case solely to describe the proposal made by the applicant in paragraph 2 of his email of 4 September 2015 and reiterated in paragraph 20 of his complaint of 29 February 2016, that the ECDC could facilitate his engagement by another EU institution, body, office or agency. Indeed, the use of a negative word is consistent with the statement at the beginning of the same sentence, that such behaviour is contrary to the rules of conduct of the agencies of the Union. This is particularly so since, in paragraph 20 of his complaint of 29 February 2016, the applicant had explained how the ECDC could, in his view, facilitate his engagement by other EU institutions, bodies, offices or agencies without interfering in their recruitment procedures by stating that he could refrain from acting on the contractual consequences of the irreparable breakdown in the relationship of trust between the parties, so that the applicant would appear to have performed his contract as a member of the contract staff until the normal expiry of that contract, the applicant, for his part, waiving his claim for remuneration for that period, and possibly renewing that contract on 1 January 2015, while a period of leave or secondment would enable the applicant to avoid actually performing services for the ECDC. It is clear that the processes thus envisaged could be understood as seeking to create certain appearances that are not entirely in accordance with the facts.
127 On the other hand, as the ECDC points out, the remarks for which it is criticised were formulated with caution, since it was specified, by the words ‘which you seem to suggest’, that it was a question of comprehension considered as probable, but not certain, of the applicant’s proposal. It should be pointed out that, in the context of this head of claim for compensation, the applicant asserts that the ECDC had alleged that, by his proposal, the applicant was seeking to promote nepotism, but not that the ECDC had thought it possible that, by his proposal, the applicant had sought to promote nepotism. In those circumstances, it cannot be considered that the use of that term constituted wrongful conduct.
128 In the second place, and for the sake of completeness, it must be stated that the applicant has not established the reality of the damage he alleges. First, there can be no question of damage to his reputation, since the passage in question appeared in a letter which was not intended to be published. On the other hand, no relevant link can be established between the content of that passage, its possible impact on the applicant and his reporting of irregularities alleged to have occurred in the recruitment of a temporary member of staff, as the approach made by the applicant in that regard seems to be artificial.
129 Accordingly, the claim for damages as a whole must be dismissed as unfounded and, consequently, the action in its entirety.
IV. Costs
130 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
131 Since the applicant has been unsuccessful, he must, having regard to the form of order sought by the ECDC, be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (First Chamber),
hereby:
1. Dismisses the action;
2. Orders CJ to pay the costs.
Pelikánová | Nihoul | Svenningsen |
Delivered in open court in Luxembourg on 13 December 2017.