CELEX: 62017TJ0160
Civil service
Temporary staff
Article 2(c) of the Conditions of Employment of Other Servants
Contract for an indefinite period
Dismissal
Breakdown in the relationship of trust
Right to be heard
Burden of proof

Background to the dispute
The applicant, RY, joined the European Commission on 1 November 2014, as a member of the temporary staff recruited under Article 2(c) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), with a contract for an indefinite period.
In accordance with Articles 2 and 3 of the contract of employment signed by the Director-General of the Commission’s Directorate-General for Human Resources and Security on 11 December 2014, the applicant was appointed Deputy Head of Cabinet of a Member of the Commission with effect from 1 November 2014, and was classified in grade AD 12, step 2.
Pursuant to an amendment to the contract of employment, signed on 2 October 2015 with effect from 1 October 2015, the applicant’s duties were amended; he was placed in the post of Expert in the Cabinet of the Member of the Commission, and was classified in grade AD 13, step 2.
By decision of the Director-General of the Directorate-General for Human Resources and Security of 27 April 2016 (‘the contested decision’), pursuant to Article 47(c)(i) of the CEOS, the Commission terminated the applicant’s contract as a member of the temporary staff with effect from 1 August 2016. That decision provided for a three-month notice period, from 1 May 2016 to 31 July 2016, during which the applicant was to be placed at the disposal of a directorate-general. Taking into account the applicant’s sick leave during the notice period, that period effectively ended on 30 October 2016.
On 27 July 2016, the applicant submitted a complaint against the contested decision to the authority empowered to conclude contracts of employment (‘the AECC’) of the Commission, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union. In support of his complaint, the applicant alleged, first, infringement of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, secondly, infringement of Article 2(c) of the CEOS.
As regards the alleged infringement of Article 41 of the Charter, the applicant submitted, in his complaint, that the contested decision was vitiated by a total failure to state reasons and a breach of the right to be heard. Under Section B of the complaint, entitled ‘Substance’, the applicant, in point 1, stated inter alia that he had not been informed of the reasons that led to the termination of his contract, with the result that he had not been given the opportunity to put forward information vitiating the contested decision before the AECC. In point 2 of the same section, he added that neither the Member of the Commission concerned nor any other person had informed him of a breakdown in the relationship of trust.
By decision of 28 November 2016 (‘the decision rejecting the complaint’), the Vice-President of the Commission, responsible for Budget and Human Resources, acting in her capacity as AECC, rejected the applicant’s complaint.
In that decision, the AECC considered that the obligation to hear the person concerned before dismissal did not apply where, as in the present case, concerning a member of the temporary staff recruited on the basis of Article 2(c) of the CEOS, the decision to terminate the contract was taken on the ground of a breakdown in the relationship of trust. In any event, the AECC considered that the argument alleging a breach of the rights of the defence had to be rejected, since the applicant had been given the opportunity to express his views on his departure from the Cabinet, in particular during meetings held in September and December 2015.
In addition, the AECC considered that the contested decision contained an adequate statement of reasons. In that respect, the AECC stated, inter alia, that the applicant had been informed on several occasions that his performance was not satisfactory and that the possibility of terminating his contract had been raised at least twice during interviews with the Head of Cabinet and with the Member of the Commission. The AECC added that the decision rejecting the complaint provided the applicant with additional reasons.
Procedure and forms of order sought
By application lodged at the Court Registry on 10 March 2017, the applicant brought the present action.
On a proposal from the Ninth Chamber, the Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the case to a Chamber sitting in extended composition.
On a proposal from the Judge-Rapporteur, the Court (Ninth Chamber, Extended Composition) decided to open the oral part of the procedure and, as a measure of organisation of procedure, to invite the parties to focus in their pleadings on the question of whether or not the plea alleging breach of the right to be heard, guaranteed by Article 41(2) of the Charter, is effective, and, assuming that it is effective, on the rules for implementing the right to be heard, in particular with regard to the respective roles of the Member of the Commission concerned and the AECC.
The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 12 September 2018.
The applicant claims that the Court should:
–
annul the contested decision;
–
order the Commission to pay the costs.
The Commission contends that the Court should:
–
dismiss the application;
–
order the applicant to pay the costs.
Law
The applicant raises two pleas in support of its action. The first plea alleges breach of the right to be heard, guaranteed by Article 41(2)(a) of the Charter. The second plea alleges that the administration failed to comply with the obligation to state reasons laid down in Article 41(2)(c) of the Charter.
It is appropriate to begin by examining the plea alleging breach of the right to be heard.
In support of this plea, the applicant submits inter alia that no one informed him of any so-called breakdown in the relationship of trust before the adoption of the contested decision and that the Commission has not adduced any evidence in support of its allegations relating to the interviews which allegedly took place with the Member of the Commission and the Head of Cabinet, in particular during the months of September and December 2015.
The Commission disputes the appellant’s arguments. In particular, it submits that the adoption of a decision terminating a contract concluded on the basis of Article 2(c) of the CEOS on the ground of a breakdown in the relationship of trust does not require a prior hearing of the person concerned and that, in any event, the Member of the Commission and the Head of Cabinet heard the applicant on several occasions before the adoption of the contested decision.
Whether the plea alleging breach of the right to be heard, guaranteed by Article 41(2)(a) of the Charter, is effective
Under Article 41 of the Charter, entitled ‘Right to good administration’:
‘1.   Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2.   This right includes:
(a)
the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; ...’
It must be noted that, as follows from its very wording, that provision is of general application (judgment of 22 November 2012, M.,
C‑277/11
,
EU:C:2012:744
, paragraph
).
Thus the Court has always affirmed the importance of the right to be heard and its very broad scope in the EU legal order, considering that that right must apply in all proceedings which are liable to culminate in a measure adversely affecting a person (see judgment of 22 November 2012, M.,
C‑277/11
,
EU:C:2012:744
, paragraph
and the case-law cited).
In accordance with the Court’s case‑law, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (see judgment of 22 November 2012, M.,
C‑277/11
,
EU:C:2012:744
, paragraph
and the case-law cited).
The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely (see judgment of 22 November 2012, M.,
C‑277/11
,
EU:C:2012:744
, paragraph
and the case-law cited).
The purpose of that right is, inter alia, to enable the person concerned to correct an error or submit such information relating to his personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content, in order to ensure that the person concerned is in fact protected (judgment of 11 December 2014, Boudjlida,
C‑249/13
,
EU:C:2014:2431
, paragraph
).
The right to be heard also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case (see judgment of 22 November 2012, M.,
C‑277/11
,
EU:C:2012:744
, paragraph
and the case-law cited).
That right must therefore allow the authorities to investigate the matter in such a way as to be able to adopt a decision in full knowledge of the facts and to state reasons for that decision adequately, so that, where appropriate, the person concerned can duly exercise his right to bring legal proceedings (see, by analogy, judgment of 11 December 2014, Boudjlida,
C‑249/13
,
EU:C:2014:2431
, paragraph
).
Lastly, the question whether there is an infringement of the right to be heard must be examined in relation, inter alia, to the legal rules governing the matter concerned (see judgment of 9 February 2017, M.,
C‑560/14
,
EU:C:2017:101
, paragraph
and the case-law cited).
In the present case, it is undisputed that the contested decision, which notifies the applicant of the termination of his contract as a member of the temporary staff, constitutes an individual measure taken against the applicant which affects him adversely, for the purpose of Article 41(2)(a) of the Charter.
However, the Commission underlines the particular role of persons performing their duties in the Cabinets of Members of the Commission. It submits that, since such persons must have the trust of the Member of the Commission to whom they are attached, the adoption of a decision terminating a contract concluded on the basis of Article 2(c) of the CEOS on the ground of a breakdown in the relationship of trust does not entail that the person concerned must be heard in advance.
In that respect, it indeed the case that a Member of the Commission has a Cabinet which comprises staff members who are his personal advisers. Those advisers are appointed
intuitu personae
, that is to say in a manner that is largely discretionary, with those concerned being selected both for their professional and personal qualities and for their ability to adapt to the methods of working specific to the Member of the Commission concerned and those of the whole of his Cabinet (judgment of 11 July 2006, Commission v Cresson,
C‑432/04
,
EU:C:2006:455
, paragraph
).
The broad discretion of the Member of the Commission to choose his staff is justified in particular by the specific nature of the duties carried out in the Cabinet of a Member of the Commission and by the need to maintain relations of mutual confidence between the Member of the Commission and his staff (see, to that effect and by analogy, judgment of 29 April 2004, Parliament v Reynolds,
C‑111/02 P
,
EU:C:2004:265
, paragraph
).
However, the specific nature of the duties carried out in the Cabinet of a Member of the Commission and the need to maintain relations of mutual confidence should not deprive the staff member concerned of the right to be heard before the adoption of a decision unilaterally terminating his contract on the grounds of a breakdown in the relationship of trust.
First, it must be borne in mind that the right of the person concerned to be heard before the adoption of any individual decision affecting him adversely is expressly enshrined in Article 41(2)(a) of the Charter, which has, since 1 December 2009, the date of entry into force of the Treaty of Lisbon, the same legal value as the Treaties. Therefore, in so far as the Commission seeks to rely on the case-law of the General Court and the European Union Civil Service Tribunal, according to which, where a dismissal decision is taken on grounds of loss of trust, the person concerned does not have a guaranteed right to be heard during the administrative procedure (judgments of 24 February 2010, P v Parliament,
F‑89/08
,
EU:F:2010:11
, paragraphs
to
; of 7 July 2010, Tomas v Parliament,
F‑116/07, F‑13/08 and F‑31/08
,
EU:F:2010:77
, paragraphs
and
, and of 24 October 2011, P v Parliament,
T‑213/10 P
,
EU:T:2011:617
, paragraph
), it should be noted that, as subsequently held by the Civil Service Tribunal, it is now necessary to take into account the provisions of the Charter, which have the same legal value as the Treaties (judgments of 12 December 2013, CH v Parliament,
F‑129/12
,
EU:F:2013:203
, paragraph
, and of 22 May 2014, CU v EESC,
F‑42/13
,
EU:F:2014:106
, paragraph
).
Secondly, it should be added that respect for the right to be heard is all the more necessary with regard to the termination of the contract for an indefinite period of a member of the temporary staff on the initiative of the administration, since such a measure, however justified it may be, constitutes an act with serious consequences for the person concerned, who loses his job and whose professional career might be negatively affected for many years (see, to that effect, judgment of 8 October 2015, DD v FRA,
F‑106/13 and F‑25/14
,
EU:F:2015:118
, paragraph
).
Thirdly, where the dismissal of a staff member carrying out his duties in the Cabinet of a Member of the Commission on the ground of a breakdown in the relationship of trust — which the Member of the Commission concerned has a largely discretionary power to assess — is proposed, it is a matter of good administration that the person concerned should be informed in advance of the proposed dismissal measure and should be able to submit his observations, in order, for example, to correct a possible error, to clarify a possible misunderstanding or to put forward information relating to his professional or personal situation.
Fourthly, in particular where the breakdown in the relationship of trust originates in value judgments of the Member of the Commission concerned as regards a member of his staff, that Member may consider, after that staff member has been given the opportunity to submit his observations, that the relationship of trust has ultimately not broken down.
In addition, while it is not for the AECC to substitute its own assessment for that of the Member of the Commission concerned as regards the reality of the breakdown in the relationship of trust, the AECC must nevertheless, first, check whether the absence or loss of a relationship of trust has indeed been invoked, then ensure that the facts have been accurately stated (see, to that effect, judgment of 22 May 2014, CU v EESC,
F‑42/13
,
EU:F:2014:106
, paragraph
) and, lastly, ensure that, in view of the ground given, the request for termination is not vitiated by a breach of fundamental rights (see, to that effect, judgment of 12 December 2013, CH v Parliament,
F‑129/12
,
EU:F:2013:203
, paragraph
) or by an abuse of powers. In that context, the AECC may, for example, take the view, in the light of the observations made by the person 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.
Fifthly, it should be emphasised that the Commission is not entitled to rely on the judgment of 29 April 2004, Parliament v Reynolds (
C‑111/02 P
,
EU:C:2004:265
) in support of the argument that it was not necessary to hear the applicant before adopting the contested decision. The circumstances of the present case differ from those of the case which gave rise to that judgment, which concerned events that occurred prior to the entry into force of the Charter. Moreover, the contested decision in that case was a decision terminating the secondment of an official of the European Parliament to the post of Secretary-General of a political group and reinstating that official in his original Directorate-General, and not a decision to dismiss a member of the temporary staff.
It follows from the above that, contrary to the Commission’s contention, a decision to terminate the contract for an indefinite period of a member of the temporary staff recruited under Article 2(c) of the CEOS on the ground of a breakdown in the relationship of trust cannot be adopted without first respecting that staff member’s right to be heard, guaranteed by Article 41(2)(a) of the Charter.
Consequently, the applicant can effectively rely on the breach of the right to be heard in the present action.
At this stage, it must be assessed whether the applicant’s right to be heard was breached.
Breach of the right to be heard
The applicant submits that he was not heard before the contested decision was adopted. He states that no one informed him of any ‘breakdown in the relationship of trust’ before the termination of his contract. He did not receive any document mentioning an inability to perform his duties or problems relating to his performance and conduct in the service. He submits that the Commission has not adduced any evidence that discussions, referred to in paragraphs 28 to 36 of the defence, took place with the Member of the Commission and the Head of Cabinet, in particular as regards the meetings of 3 September and 14 December 2015. He adds that he disputes the Commission’s assertions in that respect.
The Commission contends that the applicant was heard on several occasions before the contested decision was adopted. The applicant, initially recruited as Deputy Head of Cabinet, had difficulty adapting to the institutional context and performing his duties with regard to the security dossier, a priority dossier in the portfolio of the Member of the Commission, which the Head of Cabinet and the Member of the Commission discussed with the applicant on several occasions. On 3 September 2015, a meeting was held between the Head of Cabinet and the applicant, during which the latter’s departure from the Cabinet was discussed. That meeting was followed by an interview with the Member of the Commission on the same subject. The Commission submits that, in October 2015, the applicant was offered the post of Expert, in order to allow him to continue to work in the Cabinet. On 14 December 2015, the applicant was summoned by the Head of Cabinet and the issue of his departure was discussed in a more concrete manner. The applicant again had the opportunity to express his views and discuss them personally with the Member of the Commission in a subsequent interview. Despite the Cabinet’s initiatives, the applicant’s performance did not improve. For that reason, the Member of the Commission decided to take steps, in April 2016, to terminate the applicant’s contract on the ground that the relationship of trust had broken down.
It must be noted that, where a decision can be adopted only if the right to be heard has been respected, the person concerned must be given the opportunity to make known his views on the proposed measure effectively, in the context of an oral or written exchange initiated by the AECC, proof of which must be adduced by the latter (see, to that effect, judgments of 6 December 2007, Marcuccio v Commission,
C‑59/06 P
,
EU:C:2007:756
, paragraph
, and of 3 June 2015, BP v FRA,
T‑658/13 P
,
EU:T:2015:356
, paragraphs
and
). The Commission is therefore wrong to assert, in the rejoinder, that the applicant bears the burden of proof as regards the question of whether he was heard before the contested decision was adopted.
In the present case, it must be found that the Commission has not established that the applicant was given the opportunity to make known his views on the proposed measure effectively, in the context of a written or oral exchange.
Even if the interviews that the Commission alleges took place between the Member of the Commission and the Head of Cabinet, on the one hand, and the applicant, on the other, could be such as to enable the applicant to make known his views on the proposed measure effectively, within the meaning of paragraph 45 above, the Commission has not proved this, whereas the applicant disputes its allegations. The Commission has not produced any notes, emails or witness statements, for example. Moreover, it does not allege that, during the interviews in September and December 2015, the loss of trust and the termination of the contract on that ground were raised with the applicant.
While it is true, as the Commission submits, that the case-law referred to in paragraph 45 above does not require that a hearing be held and that a report or minutes be drawn up concerning that hearing in order to ensure that the right to be heard is respected, it is nevertheless the Commission’s responsibility, where a member of the temporary staff alleges, as in the present case, that his right to be heard was not respected, to prove that the person concerned was given the opportunity to submit his observations on the Commission’s intention to terminate his contract on the ground of a breakdown in the relationship of trust. Moreover, the fact that the Cabinets of Members of the Commission are small entities, as pointed out by the Commission, does not in itself support the conclusion that a staff member holding a position in one of those cabinets was validly heard before a decision was made to dismiss him. Lastly, although the applicant has not provided any explanation or justification as regards the meetings in September and December 2015 alleged by the Commission, it suffices to note that he disputes the Commission’s assertions that he was validly heard during those meetings, and mere assertions by the Commission cannot be given primacy over the denials of the other party (see, to that effect, judgment of 6 December 2007, Marcuccio v Commission,
C‑59/06 P
,
EU:C:2007:756
, paragraphs
and
).
In addition, as regards the question raised by the Commission as to whether the applicant’s argument criticising the failure to draw up an end-of-probation report is admissible and well founded, it suffices to note that that question does not affect the conclusion that the Commission has not proved that the applicant’s right to be heard was respected.
It follows from the foregoing that the applicant’s right to be heard before the contested decision was adopted was breached.
The consequences of the breach of the right to be heard
According to settled case-law, an infringement of the right to be heard results in the annulment of the decision adopted at the end of the administrative procedure at issue only if, had it not been for that irregularity, the outcome of the procedure might have been different (judgments of 10 September 2013, G. and R.,
C‑383/13 PPU
,
EU:C:2013:533
, paragraph
, and of 24 April 2017, HF v Parliament,
T‑584/16
,
EU:T:2017:282
, paragraph
; see also judgment of 9 September 2015, De Loecker v EEAS,
F‑28/14
,
EU:F:2015:101
, paragraph
and the case-law cited).
In the present case, the applicant submits that if he had been heard before the adoption of the contested decision, he could have been informed of the complaints against him, put forward his observations and produced the emails establishing that the reasons put forward by the Commission were unfounded. He argues that the objections raised by the Commission to justify the contested decision are subjective elements which, by their nature, could have been altered if he had been heard.
In that respect, it appears, in essence, from the decision rejecting the complaint that the breakdown in the relationship of trust between the applicant and the Member of the Commission concerned arose from the applicant’s ‘difficulties in adapting to the institutional context of the Commission and in performing his tasks in relation to the priority security dossier’. In addition, according to the decision rejecting the complaint, the applicant ‘was not able to advise the [Member of the Commission] on his dossiers and inter alia to develop a strategy on citizenship’.
Such statements, formulated in very general terms, are based on assessments of the applicant’s performance, based on both objective elements and value judgments. However, as the applicant rightly submits, value judgments in particular are, because of their subjectivity, liable by their very nature to be altered by an exchange with the person concerned (see, to that effect and by analogy, judgment of 18 September 2015, Wahlström v Frontex,
T‑653/13 P
,
EU:T:2015:652
, paragraph
). Moreover, whatever the degree of subjectivity of the assessments in question, the Commission, by failing to provide the applicant with any opportunity to express his views, deprived him of a chance to argue that another assessment of his performance was possible and, thus, to seek to restore the relationship of trust between the Member of the Commission and himself. If he had been heard, the applicant could have made observations relating to his performance or his personal or professional situation which could have shed a different light on the complaints against him.
This is all the more so since, as pointed out in paragraphs 32 and 36 above, the Member of the Commission concerned has a broad discretion in the choice of his staff recruited under Article 2(c) of the CEOS, which gives him considerable latitude both to propose the dismissal of those staff and to reconsider such a proposal.
Thus, to hold, in the circumstances of the present case, that the AECC would necessarily have adopted an identical decision if the applicant had been given the opportunity to make known his views effectively during the administrative procedure would amount to rendering meaningless the fundamental right to be heard, enshrined in Article 41(2)(a) of the Charter, since the very content of that right implies that the person concerned must have the possibility of influencing the decision-making process at issue (see, to that end, judgments of 14 September 2011, Marcuccio v Commission,
T‑236/02
,
EU:T:2011:465
, paragraph
, and of 5 October 2016, ECDC v CJ,
T‑395/15 P
, not published,
EU:T:2016:598
, paragraph
).
Lastly, as regards the argument put forward by the Commission in its defence, alleging that the emails referred to in the application were not admissible, at a later stage of the proceedings, assuming that they existed and that their content was as described by the applicant, it should be noted, first, that the applicant did not produce these emails before the Court and, secondly, that the potential inadmissibility of these emails before the Court does not change the fact that, if the applicant had been heard, he would have had the opportunity to produce these emails or, in any event, any other relevant information during the administrative procedure in order to try to prevent the proposed decision being adopted.
In these circumstances, it cannot be excluded that the dismissal procedure could have led to a different result if the applicant had been properly heard.
It follows from the foregoing that the plea alleging breach of the right to be heard, guaranteed by Article 41(2)(a) of the Charter, must be upheld.
Consequently, the contested decision must be annulled, without it being necessary to examine the second plea raised by the applicant, alleging breach of the obligation to state reasons.
Costs
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. In the present case, as the Commission has been 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 (Ninth Chamber, Extended Composition)
hereby:

1.
Annuls the decision of the European Commission of 27 April 2016 terminating the contract for an indefinite period of RY;

2.
Orders the Commission to pay the costs.

Gervasoni
Madise
da Silva Passos
Kowalik-Bańczyk
Mac Eochaidh
Delivered in open court in Luxembourg on 10 January 2019.
[Signatures]
(
*1
)	Language of the case: French.