CELEX: 62012FJ0159
Civil service
Contract staff
Fixed term contract
Termination
Breakdown in the relationship of trust
Right to be heard
Infringement

By applications lodged at the Registry of the Tribunal on 26 and 28 December 2012, registered under case numbers F‑159/12 and F‑161/12 respectively, CJ brought two actions seeking, as to the first, annulment of the decision of 24 February 2012 of the Director of the European Centre for Disease Prevention and Control (ECDC) to terminate his contract as a member of the contract staff, and compensation in respect of the material harm which he considers himself to have suffered on account of that decision and, as to the second, compensation for the non-material harm allegedly suffered.
Legal context
Pursuant to the first paragraph of Article 21 of the Staff Regulations of Officials of the European Union, as applicable to the dispute (‘the Staff Regulations’):
‘An official, whatever his rank, shall assist and tender advice to his superiors; he shall be responsible for the performance of the duties assigned to him.’
Article 21a of the Staff Regulations is worded as follows:
‘1.   An official who receives orders which he considers to be irregular or likely to give rise to serious difficulties shall inform his immediate superior, who shall, if the information is given in writing, reply in writing. Subject to paragraph 2, if the immediate superior confirms the orders and the official believes that such confirmation does not constitute a reasonable response to the grounds of his concern, the official shall refer the question in writing to the hierarchical authority immediately above. If the latter confirms the orders in writing, the official shall carry them out unless they are manifestly illegal or constitute a breach of the relevant safety standards.
2.   If the immediate superior considers that the orders must be executed promptly, the official shall carry them out unless they are manifestly illegal or constitute a breach of the relevant safety standards. At the request of the official, the immediate superior shall be obliged to give such orders in writing.’
Under Articles 11 and 81 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), Articles 21 and 21a of the Staff Regulations are applicable by analogy to members of the contract staff.
Article 47 of the CEOS, applicable by analogy to members of the contract staff by virtue of Article 119 of the CEOS, provides as follows:
‘Apart from cessation on death, the employment of temporary staff shall cease:
...
(b)
where the contract is for a fixed period:
...
(ii)
at the end of the period of notice specified in the contract giving the servant or the institution the option to terminate earlier. The period of notice shall not be less than one month per year of service, subject to a minimum of one month and a maximum of three months. For temporary staff whose contracts have been renewed the maximum shall be six months. The period of notice shall not, however, commence to run during pregnancy if confirmed by a medical certificate, maternity leave or sick leave, provided such sick leave does not exceed three months. It shall, moreover, be suspended during pregnancy if confirmed by a medical certificate, maternity or sick leave subject to the limits aforesaid. If the institution terminates the contract, the servant shall be entitled to compensation equal to one-third of his basic salary for the period between the date when his duties end and the date when his contract expires;
…’
Background to the dispute
The applicant was recruited on 1 January 2010 as a member of the contract staff in function group IV, at grade 14, within the Legal and Procurement section of the Resource Management and Coordination unit of the ECDC, as a ‘legal assistant’, for a period of five years.
Due to his heavy workload, in August 2011, the applicant came to an agreement with Ms A, Head of the Resource Management and Coordination unit who at that time was acting as Head of the Legal Service, that he should not work on more than 30 cases simultaneously.
On 1 November 2011, Ms B took up her post as Head of the Legal Service, thereby becoming the applicant’s line manager.
At the time when Ms B took up her duties, the applicant was on annual leave from which he was due to return on 8 November 2011. That leave was extended, at the applicant’s request, until 18 November 2011.
By e-mail of 8 November 2011, Ms B requested the applicant to provide her with a ‘brief written summary’ of the cases he had been working on, specifying which issues he considered to be the most important. Ms B added that she was aware that the applicant was on annual leave, but that it was important for her to have a comprehensive overview of cases currently being handled by the section.
The applicant replied to that request by e-mail of 9 November 2011 at 10.29 by asking Ms B whether Ms A had not ‘formally handed over to you her affairs as acting Head of [the Legal] Section, including the written overviews [he] submitted to, and discussed with, her up until [he] left on holiday in mid-October. …’, stating that he was prepared to re-send those overviews if that were not the case.
After returning to the office for two days, the applicant was on sick leave from 23 November to 12 December 2011.
By e-mail of 14 December 2011, sent to the applicant at 12.07, Ms B, first, mentioned that she had received a list of cases allocated to the applicant, prepared by the latter in September 2011 for Ms A. Secondly, she stated that she understood that, at that time, the applicant did not feel able to accept further tasks due to his workload. Thirdly, she stated that it was a priority to examine in detail the status of the cases for which the applicant was responsible and asked him to ‘update [his] list of ongoing tasks, proposing one of the following designations to each task: dormant, urgent “quick wins”, urgent and important, … important but not urgent, ongoing …’
The applicant replied on the same day, at 14.40, by e-mail, that he assumed that Ms B had not received a formal and detailed ‘handover note’ from Ms A, with whom he had agreed ‘in August [2011] that he was only to handle up to 30 open cases …’. Furthermore, he noted that he had almost 50 cases open: 10 of them only required a final discussion with Ms B in order to be closed. He considered that, in those circumstances, he could not take on additional cases. The applicant attached to that e-mail a list of current cases, showing open and suspended cases.
On 15 December 2011, by e-mail sent at 10.10, Ms B assured the applicant that the matter of his workload had indeed been discussed with Ms A. Furthermore, after observing that the list of cases pending had been drafted in ‘August/September [2011]’, she stated that this list should be reviewed and updated. She requested him to remove suspended cases from that list and to label the remaining cases in accordance with her previous instructions.
On the same day, at 10.46, the applicant replied by pointing out once again the terms of the agreement with Ms A and insisting on his request that he should not take on further cases, as the previously agreed maximum had been exceeded. Furthermore, he asked why Ms B wished him to remove the suspended cases from the list he had prepared, asserting that on any view those cases did not affect the maximum number of open cases which he could handle. In addition, he requested explanations on the format of the list required by Ms B, claiming that his previous line managers had always been satisfied with the current format.
Later on 15 December 2011, Ms B replied by e-mail sent at 15.06 that, in order to assess the applicant’s workload, she required a list of cases he was currently dealing with plus brief comments concerning the status of those cases. She added that, although the ‘30 case threshold’ may have been valid in August 2011, that number needed to be reassessed and determined on the basis of available resources.
On 16 December 2011, the applicant sent several e-mails to Ms B seeking information from her regarding a temporary member of staff recruited by the ECDC. According to the applicant, that information would enable him to assess whether irregularities had been committed in the course of that recruitment.
The same day, Ms A sent Ms B an e-mail confirming that the threshold of 30 cases previously fixed was no longer valid and that, from now on, it was solely for Ms B to evaluate and determine the applicant’s workload.
By e-mail of 21 December 2011 sent at 12.39, Ms B criticised the applicant for refusing, during a brief meeting which had taken place earlier that day, to handle eight cases which had been assigned to him, conduct which she described as ‘a breach of the duties … both to [her], as [his] line manager, and to the [ECDC] as a whole’. In addition, by an e-mail sent at 12.46, she summoned the applicant to a meeting the same day at 15.00, in the presence of Ms C, Head of the Human Resources Section of the Resource Management and Coordination unit.
By e-mail sent at 14.19, the applicant replied to Ms B that he had ‘booked [his] calendar from 13.30 until 16.30 today’ in order to draft a report for the purpose of Article 22a of the Staff Regulations to the Director of the ECDC (‘the Director’), concerning the recruitment of a temporary member of staff, and that therefore he would not have time to attend a meeting before 16.45. He asked her in any event to postpone the meeting until the next day, since, having regard to his recent sickness, he preferred not to stay too late at the office. In addition, the applicant raised objections to Ms C’s attendance at that meeting.
Still on 21 December 2011, the applicant participated in a meeting at 17.00 with the Director, Ms A, Ms B and Ms C. The minutes of that meeting show that Ms A confirmed that the agreement of August 2011 with the applicant on the caseload threshold was no longer valid since the appointment of Ms B as Head of the Legal Service and that the latter alone was responsible for delegating and assigning tasks to the applicant. At that meeting the Director confirmed Ms A’s comments.
By e-mail of 22 December 2011, the applicant informed the Director that, in his opinion, irregularities had been committed in the recruitment of a temporary member of staff. As a result of that information, the Director referred the matter to the European Anti-Fraud Office (OLAF).
By e-mail of 3 January 2012 sent to Ms B, the applicant requested to be relieved permanently from having to handle data protection cases.
On 8 January 2012, the applicant sent an e-mail to Ms A asking her, pursuant to Article 21a(1) of the Staff Regulations, to confirm whether certain tasks which had been assigned to him by Ms B were ‘suitable for [his] position as Legal Officer’. The next day, Ms A replied that at the meeting held on 21 December 2011 she and the Director had clearly stated that it was for Ms B, as his line manager, to assign him tasks. In the present case, according to Ms A, there was no irregularity in the assignment of the tasks disputed by the applicant.
On 10 January 2012, the applicant and Ms B had another meeting in the presence of Ms D, Human Resources Policy and Support Officer, entrusted with drawing up the minutes of that meeting, and Mr E, a member of the Staff Committee acting as witness. It is apparent from the minutes of that meeting that Ms B criticised the applicant for having systematically refused to carry out the tasks she assigned to him, for not following her instructions and for concentrating on writing countless e-mails constantly criticising her rather than on resolving problems connected with his work. The applicant, for his part, replied that the instructions which had been given to him by Ms B were inappropriate or not suitable for a Legal Officer.
Still on 10 January 2012, the applicant sent the Director a request that he ‘recognise [the] psychological harassment’ to which the applicant considered himself to be subject on the part of Ms B ‘and take measures so that this cease and be desisted from’.
On 11 January 2012, the Director opened an administrative inquiry under Article 2 of Annex IX to the Staff Regulations concerning the accusations of breach of the obligations arising under Articles 21 and 21a of the Staff Regulations made by Ms B against the applicant (‘the inquiry into the accusations of insubordination’) and informed the applicant of this by e-mail of 12 January 2012.
The inquiry into the accusations of insubordination was entrusted to Mr F, Head of the Public Health Communication and Capacity unit. It was carried out from 12 to 24 January 2012. Mr F met the applicant, in the context of the inquiry, on 13 January 2012.
On 17 January 2012, the Director informed the applicant that an inquiry had been opened as a result of the applicant’s request that he ‘recognise [the] psychological harassment’ to which the applicant considered himself to be subject on the part of Ms B ‘and take measures so that this cease and be desisted from’ (‘the inquiry into the allegations of harassment’).
By e-mail of 23 January 2012 at 23.39, Mr F forwarded the applicant an initial version of the draft report of the inquiry into the accusations of insubordination, asking him to state if he disputed the facts as set out in that draft. In addition, Mr F informed the applicant that he could submit observations at a later stage on the selection of the facts included in the report, namely after the report had been finalised.
On 24 January 2012, by e-mail sent at 17.39, Mr F forwarded to the applicant a revised version of the draft report of the inquiry into the accusations of insubordination, requesting him to submit his observations by midday on 26 January 2012. The applicant informed Mr F, by e-mail sent the same day, that he was able to submit his observations on the ‘Fact’ part by midday on 30 January 2012 but that he needed more time to submit observations on the ‘Summary’ and ‘Conclusion’ parts of the draft report.
By e-mail of 25 January 2012, Mr F replied to the applicant that, since the time-limit for lodging his inquiry report expired the next day and the applicant was not able to send him ‘a more detailed response’ by that date, he was going to send the inquiry report to the Director. Furthermore, Mr F suggested that the applicant submit his observations directly to the Director. The applicant replied to Mr F that he would in fact wait until the Director invited him to submit any observations he might have concerning the report of the inquiry into the accusations of insubordination.
Also on 25 January 2012, Ms B sent an e-mail to the applicant in which she criticised him in respect of a number of acts and omissions. Specifically, Ms B observed that she had requested him to print some documents in preparation for a meeting which had taken place that day, but that the applicant had failed to comply with her request and arrived at the meeting without the necessary documents and refusing to print them.
By e-mail of 26 January 2012 at 7.29, the applicant justified his conduct by explaining to Ms B that he had already sent her the documents by e-mail and he took the view that ‘printing … documents already available to [her was] … [a] task suitable not for a Legal Officer … but rather for [her], for [her] secretary or [her] assistant …’ and that he therefore considered that order to be unlawful.
On 26 January 2012, Mr F submitted the definitive version of the report of the inquiry into the accusations of insubordination to the Director (‘the final report on insubordination’). In his conclusion, the investigator stated that he was of the opinion that the applicant had infringed Articles 21 and 21a of the Staff Regulations and that there was sufficient evidence to initiate disciplinary proceedings on the basis of Article 3 of Annex IX to the Staff Regulations. Specifically, Mr F noted, first, that there was ‘a deep and mutual distrust between [the applicant] and [his line manager] that in practice [made] a normal day-to-day working relationship between them impossible [and that it was] remarkable how quickly [that] situation [had] developed’. Secondly, he concluded that ‘in breach [of] the Staff Regulation[s], Article 21, clear and repeated instructions from [Ms B] to [the applicant had] not been followed and given deadlines [had] not been respected’. Thirdly, he drew attention to the fact that ‘[Ms B had] been clear that refusal to carry out given tasks [might] have consequences [and that the applicant had] provided lengthy arguments as to why the given tasks [might not have been] proper, suitable or reasonable’. Fourthly, he concluded that ‘[t]here [were] diverging views between the two on what a reasonable workload [was] and what … tasks are [suitable] for a legal officer. In relation to this argument, [the applicant had] put in question the competence of [Ms B] in matters related to data protection and her managerial experience and ability to supervise him in a reasonable way’.
By e-mail of 27 January 2012, Ms B criticised a list prepared by the applicant concerning the tasks on which he was working, on the ground that some of the tasks no longer required any action on the applicant’s part and should not therefore have been included in that list. In the same e-mail, she requested the applicant to keep a worklog, stating in detail the time spent completing each of his assignments.
By e-mail of 31 January 2012, the applicant disputed Ms B’s observations on the tasks to be carried out by him and claimed that the request that he keep a worklog was ‘obviously unlawful’ and followed ‘a series of similarly unlawful orders’. The same day, the applicant wrote to Ms A to ask her whether she confirmed that request, as well as the order to ‘print out documents already submitted … by e-mail’, stating that those two orders were unlawful and unsuitable for his position.
By e-mail sent to the applicant on 2 February 2012, Ms A confirmed Ms B’s orders in the following terms: ‘… I find nothing “unlawful” or “obviously unsuitable” for your position in her request[;] on the contrary it is a legitimate expectation for a line manager when having a meeting with one of his/her [subordinates] that he/she comes prepared, maintains a log of activities and brings material to the meetings. …’
On 2 February 2012, the applicant was heard in connection with the inquiry into the allegations of harassment by Mr G, the Deputy Scientific Director of the ECDC, who had been entrusted with carrying out that inquiry.
On 10 February 2012, Mr G handed in his report on the allegations of harassment (‘the final report of the inquiry into the allegations of harassment’) to the Director. In that report, Mr G recommended that the case should not be considered to be one of psychological harassment, but ‘of a severe conflict between a subordinate and a line manager’.
By e-mail of 17 February at 8.38, the Director summoned the applicant to a meeting in his office the same day at 9.15 (‘the meeting of 17 February 2012’).
It is apparent from the minutes of the meeting of 17 February 2012, sent to the applicant the same day at 12.37, that the Director, after taking formal note of the fact that the applicant had received the final report on insubordination, informed him, first, that the inquiry into the accusations of insubordination was closed and that the accusations against him were confirmed and, secondly, that the inquiry into the allegations of harassment had been closed without any follow-up recommended. Next, he requested the applicant to submit his observations by 22 February 2012 at 17.00. Attached to those minutes were the final report on insubordination and a summary of the final report of the inquiry into the allegations of harassment which included the conclusions and recommendations of the investigator.
By e-mail of 20 February 2012 sent to the Director and to Ms D, the applicant requested more time in order to examine the two documents attached to the minutes of the meeting of 17 February 2012. The same day, Ms D contacted the applicant to confirm the time-limit of 22 February 2012 set by the Director.
By e-mail of 21 February 2012, the applicant repeated his view that the period fixed by the Director was too short and that he therefore would not be able to submit his observations within the prescribed period.
On 24 February 2012, a meeting took place between the Director, the applicant and Ms D. At that meeting, the Director informed the applicant that a decision had been taken to terminate his contract on the basis of Article 47(b)(ii) of the CEOS (‘the contested decision’), explaining to him the reasons for that decision.
The contested decision is worded as follows:
‘…
During our meeting on 17 February 2011 [sic], I confirmed the findings of both [the final report on insubordination regarding] your alleged non-compliance with the obligations detailed in Article 21 and 21a of the Staff Regulations … and [the final report of the inquiry into the allegations of harassment]. You were offered the opportunity to comment either orally, during the meeting, or subsequently, in writing, but no comments were received from you within the deadline set.
With regards to the first matter, I made it clear to you during our meeting on 10 December 2011 [sic] that I expected you to carry out the instructions of your line manager. It is clear to me from [the final report on insubordination] and also from subsequent behaviour which has been brought to my attention, that you have consistently failed in your obligations to the [ECDC] in this regard. Turning to the second matter, an investigation was carried out following your allegations of psychological harassment and no evidence of psychological harassment against you could be found. Having read both [inquiry] reports, it is clear to me that you have significant difficulty in accepting management decisions, [that you] have repeatedly refused to perform tasks and [that you] have behaved in an obstructive and provocative manner.
I can only conclude that this severe conflict has been initiated and sustained by you to the detriment of the [ECDC]. Your behaviour is not compatible with [its] values … and your sustained refusal to perform to the standards required negates the possibility of a normal working relationship. I have therefore come to the conclusion that the necessary relationship of trust between you and I, as Director …, and with other staff members has been irreparably damaged. I therefore regret to inform you that your employment with ECDC will be terminated according to Article 47 of the [CEOS]. Following the notice period of two months, your last day of employment will be 30 April 2012. In accordance with Article 47(b)(ii) of [the] CEOS you will receive compensation equal to one third of your basic salary for the period between the date when your duties end and the date when your contract expires.
Today will be your last day working in the office ... . You will be assigned work to be performed from home by your line manager and this will include the preparation of a handover file.
...’
By e-mail of 5 March 2012, the applicant sent the Director and Ms D written observations concerning the final report on insubordination. By e-mail of the same day, Ms D reminded the applicant that the deadline for submitting observations had expired and that the Director had already taken his decision.
By e-mail of 16 April 2012, the applicant requested the Director for access to all the documents concerning the inquiry into the accusations of insubordination and the inquiry into the allegations of harassment which had not yet been forwarded to him. In the absence of a reply from the ECDC, by e-mail of 16 August 2012 with the subject heading ‘Complaint …’, the applicant asked the Director to reconsider his ‘implied rejection’. At the hearing, the applicant informed the Tribunal that this ‘complaint’ had been rejected by decision of 18 December 2012, communicated to the applicant on 31 December 2012.
It is apparent from the ECDC’s statement in defence that, on 16 May 2012, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the decision to close without further action the inquiry into the allegations of harassment and that this complaint was rejected by decision of 16 September 2012.
On 18 May 2012, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations.
By letter of 29 June 2012, the Director informed the applicant of his decision to consider the case relating to the alleged illegalities in the recruitment of a member of the temporary staff closed, on account of the decision of the Director General of OLAF not to open an investigation following the applicant’s allegations, having regard to the weakness of the evidence of any irregularities.
On 28 August 2012, the applicant brought a complaint under Article 90(2) of the Staff Regulations, criticising the ECDC for failing to take action on his request of 6 February 2012 to ‘recognise, cease, and desist from’ psychological harassment. On 20 September 2012, he submitted an addendum to that complaint.
By letter of 18 September 2012, the Director, acting as the authority empowered to conclude contracts of employment (‘the AECE’), rejected the complaint of 18 May 2012 against the contested decision (‘the decision rejecting the complaint’).
Procedure and forms of order sought
By letter of 26 December 2012, the applicant asked the Tribunal to accept the application in Case F‑159/12 despite its exceeding the maximum limit of 30 pages laid down in point 12 of the Practice directions to parties on judicial proceedings before the European Union Civil Service Tribunal of 11 July 2012 (
OJ 2012 L 260, p. 6
), applicable at the time the action was brought, since the application was 52 pages long and had 175 annexes comprising 1237 pages in total. By letter of 15 January 2013, the Registry of the Tribunal informed the applicant of the Tribunal’s decision to grant that request.
By letters from the Registry of 31 January 2013, the Tribunal informed the parties that it envisaged joining Cases F‑159/12 and F‑161/12 for the purposes of the written and oral parts of the procedure and the decision closing the proceedings and invited them to submit observations on that joinder. As the parties did not submit any observations in that regard, by order of the President of the Second Chamber of the Tribunal of 14 March 2013, Cases F‑159/12 and F‑161/12 were joined for the purposes of the written and oral parts of the procedure and the decision closing the proceedings.
By letter of 30 May 2013, the applicant requested the Tribunal to authorise a second exchange of pleadings.
By letters from the Registry of 11 June 2013, the parties were informed that the Tribunal considered necessary a second exchange of pleadings, restricted to observations, if any, on certain annexes to the statement in defence which the applicant considered might have a significant impact on the result of the case, namely the minutes of three meetings between the applicant and his management (Annexes B.42, B.44 and B.48), an e-mail addressed by Ms B to the Director concerning the possibility of instigating disciplinary proceedings on the basis of Article 86 of the Staff Regulations against the applicant (Annex B.45), the final report of the inquiry into the allegations of harassment (Annex B.63) and the Director’s decision of 18 September 2012 concerning the delegation of certain powers to one of the members of staff of the ECDC (Annex B.66) (‘the instructions of 11 June 2013’). In addition, the Tribunal informed the applicant that his statement in reply was not to exceed 10 pages.
On 22 July 2013, the applicant lodged a statement in reply at the Tribunal Registry of 75 pages accompanied by annexes comprising 317 pages. In that pleading, the applicant did not restrict his observations to the annexes indicated in the instructions of 11 June 2013, but submitted observations in reply regarding the entirety of the statement in defence.
By letter from the Registry of 12 September 2013, the parties were informed of the Tribunal’s decision not to accept the reply lodged on 22 July 2013 and to set a new time-limit for lodging a reply which complied with the instructions of 11 June 2013.
On 19 September 2013, the applicant lodged a new reply of 18 pages at the Tribunal Registry. That reply was accompanied by 22 annexes, comprising 144 pages, which included the reply of 22 July 2013. Since that new reply did not comply with the instructions of 11 June 2013, the Tribunal decided not to include it in the file and set a new time-limit of 24 October 2013 for lodging a reply which complied with those instructions, which it notified to the applicant by letter from the Registry of 16 October 2013. In the same letter, the Tribunal drew the applicant’s attention to Articles 32 and 94 of the version of the Rules of Procedure then in force and to the inferences which the General Court of the European Union had drawn from the infringement of the equivalent provisions in its Rules of Procedure, inter alia in its judgment in
Strack
v
Commission
(T‑199/11 P,
EU:T:2012:691
).
By letter of 23 October 2013, the applicant asked the Tribunal to accept the reply of 22 July 2013 or that of 19 September 2013.
By letter of 12 November 2013, the Tribunal Registry informed the parties that, having regard to the fact that the applicant had not lodged a reply complying with the instructions of 11 June 2013 within the prescribed period, the Tribunal had decided to close the written part of the procedure.
By letter of 26 July 2014, the applicant’s representative requested authorisation from the Tribunal to make oral submissions in Greek at the hearing instead of in the language of the proceedings and to organise simultaneous interpretation of the legal argument into Greek. The reason given for that request was the difficulty he was afraid he might have in making oral submissions in English. Furthermore, by another letter of the same date, the applicant requested the Tribunal take certain measures of organisation of procedure, concerning events which took place more than a year after the adoption of the contested decision.
By letter of 14 August 2014, the Tribunal Registry informed the parties of the Tribunal’s decision to reject both those requests.
By letter of 28 September 2014, the applicant requested the Tribunal to amend the minutes of the hearing. By letters from the Registry of 4 December 2014, the parties were informed of the Tribunal’s decision not to amend those minutes.
In Case F‑159/12, the applicant claims that the Tribunal should:
—
annul the contested decision so that, in order to comply with the judgment, the ECDC is required, under Article 266 TFEU, to reinstate him in a post and to pay him all the emoluments he would have received from the date of entry into force of the contested decision together with default interest at the rate applied by the European Central Bank to its main refinancing operations during the period concerned, increased by two percentage points and minus the pecuniary compensation which he has received and the unemployment allowance he will from now until his reinstatement have received;
—
annul the decision rejecting the complaint, in so far as it may produce autonomous legal effects;
—
order the ECDC to pay the costs.
In Case F‑161/12, the applicant claims that the Tribunal should:
—
order the ECDC to pay him at least EUR 118 500 in respect of compensation for non-material harm;
—
order the ECDC to pay the costs.
In the defence, the ECDC contends that the Tribunal should:
—
dismiss the applications;
—
order the applicant to pay the costs.
Law
The claim for annulment of the decision rejecting the complaint
According to case-law, a claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Tribunal the act against which the complaint was submitted, where that claim, as such, lacks any independent content (judgment in
Balionyte-Merle
v
Commission
, F‑113/12,
EU:F:2013:191
, paragraph 24 and the case-law cited therein).
In the present case, the decision rejecting the complaint confirms the contested decision in only providing some further details regarding the grounds on which it was based, without the administration’s having reconsidered the applicant’s situation on the basis of new law or facts. In such circumstances, it is indeed the legality of the initial act adversely affecting the member of staff which must be examined, taking into account the grounds given for the decision rejecting the complaint, those grounds being deemed to coincide with those of the initial act (judgment in
Buxton
v
Parliament
, F‑50/11,
EU:F:2012:51
, paragraph 21).
Consequently, the claim for annulment directed against the decision rejecting the complaint has no independent content and the action must be regarded as being directed against the contested decision, whose statement of reasons is supplemented by the decision rejecting the complaint (see, to that effect, judgment in
Eveillard
v
Commission
, T‑258/01,
EU:T:2004:177
, paragraphs 31 and 32).
The claim for annulment of the contested decision
The applicant puts forward 15 pleas in law in support of his claim for annulment of the contested decision, alleging, respectively:
1.
breach of the right to be heard;
2.
breach of the obligation to state reasons;
3.
breach of the principle of the presumption of innocence;
4.
breach of the duty of due diligence;
5.
breach of the applicant’s right to be granted access to the files of both inquiries;
6.
that both investigators were unsuitable;
7.
misuse of powers;
8.
infringement of Article 2(3) of Annex IX to the Staff Regulations;
9.
manifest error of assessment as to the facts;
10.
error in law in the choice of legal basis for the contested decision;
11.
factual error as regards the criticised ‘subsequent behaviour’;
12.
manifest errors in the assessment of the insubordination;
13.
breach of the principle of proportionality;
14.
the lack of competence of the signatory of the decision rejecting the complaint;
15.
the lack of competence of the ECDC and the Tribunal to adjudicate on the accusations concerning criminal conduct.
Furthermore, in Case F‑159/12, in the part of the application entitled ‘Preliminary considerations’, the applicant raises two preliminary pleas in law alleging, as to the first, that the contested decision is essentially a disguised disciplinary measure (‘the first preliminary plea’) and, as to the second, misuse of powers (‘the second preliminary plea’).
Moreover, the Tribunal finds that in the annexes to the application in Case F‑159/12, labelled A.0a, A.0b, A.0c and A.0d, the applicant develops several additional complaints, justifying this presentation by the concern to make the arguments or complaints submitted in the application ‘as concise as possible’.
However, the Tribunal has already held that, even though an application may be supported and supplemented, in regard to specific points, by references to extracts of documents appended thereto, the annexes have a purely evidential and instrumental function and cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward complaints or arguments which are not contained in that application. It is apparent from Article 35(1)(e) of the Rules of Procedure applicable at the time the action was brought, now, with amendments, Article 50(1)(e) of the Rules of Procedure, that the applicant must indicate in his application the specific complaints on which the Tribunal is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based (judgment in
Giannini
v
Commission
, F‑49/08,
EU:F:2009:76
, paragraph 86).
It follows that the complaints which are only set out in the annexes to the application labelled A.0a, A.0b, A.0c and A.0d are inadmissible.
The Tribunal will start by considering the first preliminary plea, together with the tenth plea, and will then examine the second preliminary plea, in conjunction with the seventh plea. Next, the Tribunal will consider the other pleas in the order in which the applicant submitted them, examining together the ninth, eleventh and twelfth pleas, which all allege manifest errors of assessment.
The first preliminary plea and the tenth plea, alleging that the contested decision is essentially a disguised disciplinary measure and that its legal basis is vitiated by an error in law
The applicant takes the view that the contested decision is essentially a disciplinary measure which should have been adopted, if necessary, under Article 86 of the Staff Regulations and Annex IX thereto.
The disciplinary nature of the contested decision is apparent, first, from the fact that the reason given for it was the applicant’s behaviour and the serious conflict between him and his line manager and, secondly, the fact that the contested decision took effect ‘immediately’, since, in practical terms, he was forbidden access to his office from the date of the contested decision. According to the applicant, by adopting the contested decision on the basis of Article 47(b)(ii) of the CEOS, the ECDC deprived him of the procedural safeguards provided for by disciplinary proceedings.
The Tribunal points out that, according to settled case-law, relating to members of the temporary staff but applicable by analogy to members of the contract staff, on account of the broad discretion enjoyed by the AECE, where there is wrongful conduct capable of justifying the dismissal of a member of the temporary staff or contract staff, there is no obligation on that authority to initiate disciplinary proceedings against him rather than using the option of unilaterally terminating the contract provided for in Article 47(b) of the CEOS. It is only if the AECE intends to dismiss a member of the temporary staff or contract staff without notice, in a serious case of failure to comply with his obligations, that the disciplinary procedure provided for in Annex IX to the Staff Regulations of Officials, which applies by analogy to members of the temporary staff and contract staff, should be initiated, as provided for in Article 49(1) of the CEOS (judgments in
Longinidis
v
Cedefop
, T‑283/08 P,
EU:T:2011:338
, paragraph 100;
Gomes Moreira
v
ECDC
, F‑80/11,
EU:F:2013:159
, paragraph 49; and
CT
v
EACEA
, F‑36/13,
EU:F:2013:190
, point 54).
It follows that, by deciding to terminate the applicant’s contract before its expiry, with notice, on the basis of Article 47(b)(ii) of the CEOS and without initiating disciplinary proceedings, the AECE did not act unlawfully.
The first preliminary plea and the tenth plea must therefore be rejected.
The second preliminary plea and the seventh plea, alleging misuse of powers
In the applicant’s opinion, the contested decision was taken as a reprisal for his having reported possible irregularities in the recruitment of a temporary staff member. He therefore alleges that the ECDC misused its powers and infringed Article 22a(3) of the Staff Regulations and Article 24(3)(c) of the Annex to the European Social Charter, signed in Turin on 18 October 1961.
In particular, the applicant submits that the contested decision was adopted only two months after he had drawn attention to the irregularities in question. He also points out that his allegations concerned, inter alia, ‘the [AECE]’ and ‘certain close associates thereof’ and that, on one hand, they had been very badly received by Ms B and, on the other hand, they were dismissed by the Director ‘despite being well-founded’. Secondly, the applicant asserts that he was subject to ‘intense psychological harassment by [Ms B]’ shortly after he reported the abovementioned irregularities. He concludes that the ECDC attempted to prevent him from accomplishing his duty to report to the ECDC’s management board serious irregularity ‘concerning his dismissal’. Furthermore, he submits that ‘an anonymous survey conducted shortly before [he] raised the abovementioned allegations revealed that ECDC staff were reluctant to express criticism at work for fear of reprisals from their managers, in the practices of whom [staff] moreover essentially saw misuse of powers’. Lastly, he observes that the ECDC lacks internal rules protecting members of staff who report possible illegality known to them.
The applicant requests the Tribunal to ask the ECDC, by way of measures of organisation of procedure, to produce all the correspondence between the Director, Ms A, Ms B, Ms C and Ms D in the period from 15 December 2011 to 24 February 2012.
The ECDC contends that the Tribunal should reject the second preliminary plea and the seventh plea as unfounded.
The Tribunal finds, first, that the complaint alleging infringement of Article 22a(3) of the Staff Regulations and Article 24(3)(c) of the Annex to the European Social Charter is not supported by any arguments, in breach of the rule provided for in Article 35(1)(e) of the Rules of Procedure applicable at the time the action was brought, now, with amendments, Article 50(1)(e) of the Rules of Procedure, so that this complaint must be declared inadmissible.
Secondly, the Tribunal points out that, according to case-law, a decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated (judgments in
Lux
v
Court of Auditors
, 69/83,
EU:C:1984:225
, paragraph 30;
Pitrone
v
Commission
, T‑46/89,
EU:T:1990:62
, paragraph 70; and
Angelidis
v
Parliament
, F‑104/08,
EU:F:2010:23
, paragraph 89).
In the present case, first, the Tribunal notes that the wording of the contested decision shows that it was clearly based on breaches by the applicant of his obligations to the ECDC and on the irreparable breakdown in the relationship of trust which ensued.
Secondly, the Tribunal is of the opinion that the applicant relies on mere conjecture without putting forward objective, relevant and consistent evidence of misuse of powers. In particular, the Tribunal notes that OLAF decided not to take any action on the applicant’s allegations on account of the weakness of the evidence of the irregularities he raised. The applicant therefore cannot rely on the fact that, in his view, those allegations were indeed ‘well founded’ and that they were dismissed solely because they concerned the Director or his close associates. In the same way, the argument that the contested decision was linked to the alleged psychological harassment to which he was subject from Ms B must be rejected. The final report of the inquiry into the allegations of harassment excluded the possibility that the applicant had been the victim of such harassment and that inquiry was closed without follow-up by a decision of the Director, a decision which the applicant has not challenged before the European Union judicature and which has therefore become definitive.
As a result, the second preliminary plea and the seventh plea, alleging misuse of powers, must be rejected as unfounded without its being necessary to adopt the measures of organisation of procedure requested by the applicant.
The first plea, alleging breach of the right to be heard
– Arguments of the parties
The applicant submits that he was not heard before the contested decision was adopted. By adopting the decision in those circumstances, the ECDC infringed Article 1(1) of Annex IX to the Staff Regulations and Article 41(2)(a) of the Charter of Fundamental Rights of the European Union.
That plea is broken down into four complaints.
By his first complaint, the applicant points out that, in the contested decision, the Director claims that it is clear to him, from the final report on insubordination and from ‘subsequent behaviour which ha[d] been brought to [his] attention’, that the applicant had consistently failed in his obligations to the ECDC. In the decision rejecting the complaint, the AECE cites as examples of that ‘subsequent behaviour’ by the applicant several breaches by the latter of his obligations to the ECDC, and many instances of insubordination. Those acts are described in the e-mails sent to the applicant by Ms B between 23 January and 7 February 2012, thus after the closure of the inquiry into the allegations of harassment. The applicant asserts that he has never been heard concerning that subsequent behaviour.
By his second complaint, the applicant submits that he was informed of the fact that the AECE imputed to him the responsibility for the ‘severe conflict’ with his line manager for the first time in the contested decision. He claims that, previously, the sole relevant document which had been communicated to him, namely the final report of the inquiry into the allegations of harassment, referred to the existence of that conflict but did not indicate who was to blame for it.
According to the applicant, had he been allowed to express his views on that issue, he would have been able to prove that the AECE had committed a manifest error of assessment in designating him as the party responsible for that conflict and that it had infringed Article 1(1) of Annex IX to the Staff Regulations in not informing him of his ‘personal involvement’.
The third complaint alleges that the applicant was never informed of or heard on either the severity of the action which the AECE intended to take as a result of the findings in the final report on insubordination or the legal basis on which the AECE intended to rely in adopting the contested decision.
The applicant considers that, had he been allowed to adopt a position on those questions, he could have claimed that ‘he had expected to be given the opportunity of … [stating] his view [in detail] before a disciplinary board and that it would [have been] unlawful for [the] ECDC to abandon [those] disciplinary proceeding[s]’. According to the applicant, in breach of Article 41(2)(a) of the Charter, the ECDC did not give him the opportunity to state his view such as to prevent his dismissal under Article 47(b)(ii) of the CEOS.
By his fourth complaint, the applicant observes that he was convened to attend the meeting of 17 February 2012 the same day, by a notice which did not state either the subject-matter or the agenda of that meeting. At that meeting, he was given a period of three working days within which to submit his observations on both inquiry reports and the AECE rejected his request to be granted a longer period. That period is, in his opinion, too short for it to be found that he was properly heard within the meaning of Article 41(2)(a) of the Charter.
The same is true, according to the applicant, as regards the inquiry into the accusations of insubordination. On 26 January 2012, the investigator granted him two and half working days within which to submit, on the basis of Article 1(1) or Article 2(1) of Annex IX to the Staff Regulations, written observations on the facts on which the inquiry was based. He considers that this period is likewise insufficient and infringes Article 1(1) of Annex IX to the Staff Regulations.
The ECDC disputes the applicant’s arguments.
First of all, the ECDC observes that, before the contested decision was adopted, Ms B had informed the applicant on several occasions of her complaints regarding his consistent refusal to perform the tasks she assigned to him and his continuous questioning of her authority as his line manager. Moreover, inasmuch as those complaints did not relate only to isolated incidents but rather to the applicant’s general and consistent attitude, the fact he was not heard on such or such a specific episode is of no importance.
In any event, the ECDC submits that the applicant was heard twice during the administrative inquiry procedure on the accusations of insubordination, namely on 13 January 2012 by the investigator and on 17 February 2012 by the Director. In addition, he was given the opportunity several times to provide observations on the final report of that inquiry, namely on 23 and 24 January 2012 and on 17 February 2012. However, at the end of the inquiry into the accusations of insubordination, the applicant still refused to communicate his observations within the prescribed periods, thereby choosing not to exercise his right to be heard.
Next, the ECDC submits that the fact that the applicant was not informed ‘of the legal basis and [the penalty] which the AECE envisaged taking [thereon] …was caused by [his] ignorance of the Staff Regulations and of the applicable case-law’. In any event, the applicant conceded in his originating application that he was warned several times by his line manager of the potentially serious consequences which his behaviour might have.
Lastly, the ECDC takes the view that the time-limits set for the applicant to submit his observations on the final report on insubordination and on the final report of the inquiry into the allegations of harassment were commensurate to the scope of those inquiries and the length of those reports.
– Findings of the Tribunal
It must be recalled at the outset that, as the Tribunal found in paragraphs 81 and 82 above, the contested decision was adopted on the basis of Article 47(b)(ii) of the CEOS, so any reference to the provisions governing disciplinary proceedings made by the applicant is irrelevant to the analysis of the present plea.
Secondly, pursuant to Article 41(2)(a) of the Charter, every person has the right to be heard before any individual measure which would affect him or her adversely is taken. Furthermore, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (judgment in
Kamino International Logistics
, C‑129/13 and C‑130/13,
EU:C:2014:2041
, paragraph 39).
According to the case-law, 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 the judgment in
Foshan Shunde Yongjian Housewares & Hardware
v
Council
, C‑141/08 P,
EU:C:2009:598
, paragraph 83).
It is not disputed that, in the present case, the decision to terminate the applicant’s contract on the basis of Article 47(b)(ii) of the CEOS constitutes an individual measure which affects the applicant adversely (see, as regards the early termination of the contract of an accredited parliamentary assistant, judgment in
CH
v
Parliament
, F‑129/12,
EU:F:2013:203
, paragraph 34; see also, as regards the non-renewal of the fixed term contract of a member of the temporary staff, judgment in
Tzikas
v
AFE
, F‑120/13,
EU:F:2014:197
, paragraph 46). The applicant therefore had the right to be heard before the adoption of the contested decision, even though Article 47(b)(ii) of the CEOS does not specifically provide for such a right.
So far as concerns the first, second and fourth complaints, the wording of the contested decision shows that it was taken on the ground that the applicant had breached his obligations to the ECDC by not complying with the instructions of his line manager and behaving in an obstructive and provocative manner. That finding is based on the final report on insubordination and on ‘subsequent behaviour’ by the applicant which was brought to the Director’s knowledge.
As regards that ‘subsequent behaviour’, the AECE referred, in the decision rejecting the complaint, to a number of e-mails in which Ms B criticised various acts and omissions by the applicant. In particular, Ms B reproached the applicant for not attending meetings to which he had been convened (e-mails of 3 and 7 February 2012), for not preparing documents for which he had been requested (e-mails of 25 January and 6 February 2012), for behaving inappropriately at a meeting (e-mail of 31 January 2012) and lastly for questioning her competence, despite the fact that she had already indicated to him that she found that conduct ‘rude and harassing’ (e-mail of 23 January 2012). Moreover, in the e-mails of 25 January, 6 February and 7 February 2012, Ms B informed the applicant that his behaviour would be brought to the Director’s attention, so the applicant was fully aware that the Director would be informed of the acts and omissions which Ms B had criticised.
It must therefore be stated that the acts and omissions described in the e-mails mentioned in the preceding paragraph are nothing other than examples of the conduct for which the applicant had already been criticised in the conclusion of the final report on insubordination, namely not complying with the clear and repeated instructions of his immediate superior in breach of Article 21 of the Staff Regulations.
It is apparent from the file that, first, the applicant was in fact invited to submit his observations, initially, on the draft report of the inquiry into the accusations of insubordination then, at the meeting of 17 February 2012, on the final report of that inquiry (see paragraph 43 above) and that he did not submit any observations within the time-limits he was set. Secondly, the applicant could have submitted observations on the acts and omissions criticised in the e-mails referred to in paragraph 112 above either at the meeting of 17 February 2012 or within the time-limit set during that meeting for him to submit observations on the final report on insubordination. However, it appears that, by not communicating observations to the ECDC until 5 March 2012, thus almost two weeks after the expiry of the last time-limit he was set, the applicant in effect declined to exercise his right to be heard in that regard.
Since the applicant was thereby given the opportunity to respond and to submit observations on the acts and omissions of which he was accused, the complaint alleging that he was not heard on the criticised ‘subsequent behaviour’ therefore cannot be upheld.
It is sufficient to note, as regards the complaint concerning the alleged uncertainty with respect to the responsibility for the conflict between the applicant and Ms B, that, in the final report on insubordination, the investigator states that, in breach of Article 21 of the Staff Regulations, the applicant did not comply with the clear instructions of his superior, notwithstanding the confirmation of those instructions by the hierarchical authority immediately above in accordance with Article 21a(1) of the Staff Regulations. The investigator thus issued the opinion that the applicant had breached his obligations to the ECDC, thereby warranting the initiation of disciplinary proceedings.
In the light of the wording of that report, the applicant certainly cannot argue that he discovered for the first time on reading the contested decision that he was to be blamed for the conflict with his line manager. In those circumstances, it must be held that the applicant was given an opportunity to submit his observations on the responsibility for the conflict with his line manager which, according to the final report on insubordination, was clearly imputed to him. Consequently, the present complaint cannot be upheld.
Lastly, so far as concerns the various time-limits set for the applicant to submit his observations, the Tribunal notes that the investigator gave the applicant a period of one and a half working days to submit his observations on the final report on insubordination and that, at the meeting of 17 February 2012, the Director left the applicant a further five days to submit his observations on the final report on insubordination and on the findings and the recommendations in that report.
The Tribunal takes the view that those time-limits were justified, first, by the fact that the factual context in which the two inquiries took place was well known to the applicant and, secondly, by the brevity of the documents communicated to him. The final report on insubordination consists of seven pages, six of which deal with the description of the facts and only one of which deals with the investigator’s findings. Moreover, the final report is identical to the draft communicated to the applicant for the first time on 23 January 2012 at 23.39 and the second time the next day at 17.39. Consequently, when the Director, at the meeting of 17 February 2012, granted the applicant a period of five days to submit his observations on the final report on insubordination, the applicant had already known the contents of that report for more than three weeks. The findings of the final report of the inquiry into the allegations of harassment are contained in seven lines of text. Accordingly, the Tribunal considers that the time-limit set for the applicant was more than sufficient for him to submit observations.
So far as concerns, lastly, the meeting of 17 February 2012, the Tribunal notes that the applicant had been aware, since 24 January 2012, that the Director had received the final report on insubordination. Indeed, the applicant himself, in an e-mail of 25 January 2012 sent to Mr F, wrote that he was waiting for ‘a signal from the Director’ to find out whether he could still submit observations on that report. Accordingly, the fact that the applicant was convened to attend the meeting of 17 February 2012 at short notice and by an e-mail which did not state the purpose of the meeting cannot have had an impact on the applicant’s option to submit his observations on the final report on insubordination directly to the Director, as Mr F had suggested on 24 January 2012 when he communicated a copy of that report to him. In any event, in the light of the factual context and the subject-matter of the meeting of 21 December 2011 between, inter alia, the Director and the applicant, and having regard also to their hierarchical relationship, the applicant was able to grasp what the subject-matter of the meeting of 17 February 2012 would be and to make the necessary inquiries, if he had any doubts in this respect, before attending.
Consequently, the complaint alleging that the time-limits set for the applicant to submit his observations do not comply with Article 41(2)(a) of the Charter must be rejected.
So far as concerns the third complaint, alleging that the applicant was neither informed of the action which the AECE intended to take as a result of the findings in the final report on insubordination, nor heard on the severity of that action, nor informed of or heard regarding the legal basis on which the AECE intended to rely in its adoption of the contested decision, it is apparent from the file that the AECE never mentioned, prior to the adoption of the contested decision, the possibility that a decision might be taken to terminate the applicant’s contract on the basis of Article 47(b)(ii) of the CEOS. It must be held in particular that Ms B’s various statements that the applicant’s behaviour might have consequences for his staff report, or even ‘more serious consequences’, did not enable him to comprehend without doubt that the AECE was planning to terminate his contract before its expiry. The applicant was not therefore given the opportunity to submit observations on the action which the AECE was planning to take as a result of his behaviour and, in particular, on the fact that it intended to terminate his contract under the aforementioned provision.
It must therefore be held that, so far as concerns that aspect of the contested decision, the applicant’s right to be heard was not respected by the ECDC, in breach of Article 41(2)(a) of the Charter.
However, in order for the infringement of the right to be heard to justify the annulment of the contested decision in the present case, it is also necessary to examine whether, in the absence of that irregularity, the procedure might have led to a different result (judgments in
Kamino International Logistics
,
EU:C:2014:2041
, paragraph 79;
CH
v
Parliament
,
EU:F:2013:203
, paragraph 38; and
Wahlström
v
Frontex
, F‑117/13,
EU:F:2014:215
, paragraph 28).
The purpose of the rule that the addressee of a decision affecting him adversely must be placed in a position to submit his observations before that decision is adopted is to enable the authority concerned effectively to take into account all relevant information. In order to ensure that the addressee is in fact protected, the object of that rule is, in particular, to enable him to correct an error or produce such information relating to his personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having this content or that (judgment in
France
v
People’s Mojahedin Organization of Iran
, C‑27/09 P,
EU:C:2011:853
, paragraph 65 and the case-law cited therein).
In that regard, the applicant submits that, if he had been heard on the action which the AECE intended to take as a result of his behaviour, he could have requested that disciplinary proceedings be initiated. In addition, when questioned at the hearing, the applicant stated that he could have suggested to the AECE that it adopt alternative solutions, such as, for example, his transfer to another department or his temporary suspension from duties in order to ‘give him some time to think’.
The Tribunal finds that the contested decision is based on an irreparable breakdown in the relationship of trust with the applicant due to a long series of inappropriate actions on his part and that the applicant had the opportunity to state his views, several times, on the behaviour of which he was accused.
However, it is apparent from the file, and in particular from the facts as established in the final report on insubordination, that the behaviour of which the applicant is accused did not begin until Ms B was appointed Head of the Legal Service and, consequently, became his line manager. The ECDC does not claim that the applicant’s behaviour gave rise to problems of a disciplinary or other nature before the period to which that report relates or that, for example, the applicant had already breached his obligations under Articles 21 and 21a of the Staff Regulations prior to that period. Although the ECDC stated, at the hearing, that it was impossible to transfer the applicant to another post in the present case, that contention was not supported by any evidence of that alleged state of affairs which, moreover, is in no way apparent from the file. It is therefore evident that the AECE did not consider any solution to the insubordination found to have been committed by the applicant other than the termination of his contract.
The decision to end the contract of a member of the contract staff before its expiry, however warranted, constitutes an act of extreme seriousness both for the institution or agency concerned, which selected and recruited him, normally following a highly competitive selection procedure, and even more so for the member of staff, who suddenly finds himself to be unemployed and whose career might be negatively affected for many years. Besides the fact that this is a fundamental right of the member of staff concerned, the exercise by the latter of the right to state his views effectively on the dismissal decision envisaged falls within the AECE’s responsibility, a responsibility which it must scrupulously comply with. It is not for the Tribunal to adopt a position, in the context of the present complaint, on whether other solutions which might have been envisaged in the case were feasible. In any event, to hold that the AECE would necessarily have adopted the same decision, even after hearing the applicant, would render 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 have the possibility of influencing the decision-making process at issue (judgment in
Wahlström
v
Frontex
,
EU:F:2014:215
, paragraph 33 and the case-law cited therein).
In the circumstances of the present case, the Tribunal is not able to rule out the possibility that, had the applicant been heard before the AECE decided to terminate his employment contract under Article 47(b)(ii) of the CEOS, the applicant might have persuaded the AECE to adopt a different decision.
Having regard to the foregoing, the third complaint in the first plea must be upheld and the contested decision must be annulled on the ground that, before adopting the contested decision, the AECE did not hear the applicant on the action which it intended to take as a result of his behaviour.
Although the contested decision must be annulled, the Tribunal will examine, in the interests of the proper administration of justice, the other pleas raised by the applicant.
The second plea, alleging breach of the obligation to state reasons
– Arguments of the parties
The applicant submits that the statement of reasons for the contested decision is inadequate in a number of respects, in breach of Article 25 of the Staff Regulations and of Article 41(2)(c) of the Charter.
First, the applicant claims that in the contested decision he is criticised for ‘subsequent behaviour’ contrary to Article 21 of the Staff Regulations but that ‘the points in time to which such behaviour was allegedly “subsequent”’ are not specified. That temporal vagueness, and the lack of any factual details or evidence of that behaviour, prevented him from understanding of what that ‘subsequent behaviour’ consisted. In addition, the applicant takes the view that, in the light of the essentially disciplinary nature of the contested decision and its severity, the inadequacy of the statement of reasons cannot be properly remedied by the decision rejecting the complaint without infringing Article 25 of the Staff Regulations.
Secondly, the applicant observes that the contested decision refers to an irreparable breakdown of the relationship of trust with the Director and ‘with other staff members’ but fails to state who those ‘other staff members’ were. The applicant admits that he may ‘easily assume’ that Ms B is one of those staff members but submits that it is impossible for him to know who the others were.
Thirdly, the applicant takes the view that the statement of reasons for the contested decision is inadequate so far as concerns the responsibility imputed to him for the ‘severe conflict’ with his line manager.
Fourthly, the applicant criticises the AECE for failing to explain the reasons which led it not to initiate disciplinary proceedings but to adopt the contested decision on the basis of Article 47(b)(ii) of the CEOS.
Fifthly, the applicant submits that the statement of reasons for the findings of the final report on insubordination on which the contested decision is based is inadequate.
The ECDC contends that the statement of reasons for the contested decision is adequate and requests the Tribunal to reject the present plea as manifestly unfounded.
– Findings of the Tribunal
The Tribunal observes at the outset that the principle of good administration, laid down in Article 41 of the Charter, which includes, in particular, ‘the obligation of the administration to give reasons for its decisions’, is one of the guarantees conferred by EU law in administrative proceedings.
Furthermore, the obligation to state the grounds for a decision adversely affecting an official is an essential principle of EU law which may be derogated from only for compelling reasons. The purpose of that obligation, as laid down in the second paragraph of Article 25 of the Staff Regulations, is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error which may permit its validity to be contested before the Courts of the European Union and, second, to enable those Courts to review the lawfulness of the act. The statement of reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him (judgments in
Tzirani
v
Commission
, F‑46/11,
EU:F:2013:115
, paragraphs 137, 139 and 140, and
Arguelles Arias
v
Council
, F‑122/12,
EU:F:2013:185
, paragraphs 78 to 81 and the case-law cited therein).
In order to determine whether the requirement to state reasons has been satisfied, it is necessary to take into consideration not only the documents giving notice of the decision but also the circumstances in which that decision was taken and brought to the knowledge of the member of staff concerned. It is thus possible to regard the reasons given for a decision as sufficient if it was adopted in a context known to the official concerned which enables him to understand its scope (judgment in
Guinet
v
EIB
, F‑107/12,
EU:F:2014:1
, paragraph 44 and the case-law cited therein).
In the present case, the Tribunal observes, first, that the AECE was not under any obligation to instigate disciplinary proceedings and was therefore not required to explain, in the contested decision, why it was basing that decision on Article 47(b)(ii) of the CEOS and not on the provisions governing the disciplinary procedure.
Next, as is apparent from the text of the contested decision (see paragraph 47 above), first, the Director points out that, at a meeting held in December 2011 with the applicant, he informed the latter that he expected him to carry out Ms B’s instructions. Secondly, the Director states that it is clear to him that the applicant has consistently failed in his obligations to the ECDC and that this is apparent both from the final report on insubordination and from his ‘subsequent behaviour’. Thirdly, he maintains that, having read both inquiry reports, he is of the opinion that the applicant has significant difficulty in accepting management decisions, has repeatedly refused to perform tasks and has behaved in an obstructive and provocative manner. Fourthly, he declares that the applicant initiated and sustained a severe conflict with management to the detriment of the ECDC, that his behaviour is not compatible with the values of the ECDC and that his sustained refusal to perform to the standards required negates the possibility of a normal working relationship. Lastly, he concludes that the applicant has irreparably damaged the relationship of trust that must exist between them.
It must therefore be held that the reasons given for the contested decision enable the applicant to assess, with full knowledge of the facts, whether it is well founded and whether an action may be brought against it and enable the Tribunal to review the lawfulness of that measure.
Furthermore, it is not disputed that the applicant was very well acquainted with the context in which the contested decision was taken.
First, he had received the final report on insubordination on 17 February 2012, from which it was apparent that the investigator took the view that he had repeatedly breached his obligations with regard to the ECDC.
Next, Ms B had on several occasions criticised the applicant for not following her instructions and for challenging her authority. As an example, besides the e-mails mentioned in paragraph 112 above, which, although sent after the final report on insubordination was adopted, are relevant for the purposes of assessing the lawfulness of the contested decision, Ms B had warned the applicant, in an e-mail of 20 December 2011 at 11.51, that ‘[i]f [he was] unwilling to follow the request[s] of [his] line manager … this [would] reflect upon any evaluation of [his] ability, efficiency and conduct’, indicating that ‘a consistent inability or refusal to follow the instructions of [his] line manager [might] have more serious consequences’.
In addition, in an e-mail of 5 January 2012 at 9.43, Ms B wrote to the applicant stating that ‘[t]he crux of the problem appear[ed] to be [his] refusal to accept [her] authority as line manager to assign work to [him]. … Since the Director [had] already adjudicated on this matter, [she] consider[ed] protracted correspondence to be a waste of precious resources and lacking in respect to both [her] and the [ECDC] as a whole’. Lastly, the same day, Ms B sent the applicant another e-mail worded as follows: ‘…As you are aware you are contractually obliged to perform tasks assigned to you and your refusal to do so will be viewed in light of this obligation. …’
Lastly, the finding that there was no breach of the obligation to state reasons cannot be called into question by the chronological inaccuracies in the contested decision, which gives the dates of the meetings between the Director and the applicant as ‘10 December 2011’ and ‘17 February 2011’, even though the meetings in question took place on 21 December 2011 and 17 February 2012. Those factual errors were noticed by the applicant, who, in the application, himself acknowledges that ‘by “10 December 2011” the [appointing authority] presumably meant [“21 December 2011”]’ and that ‘by “17 February 2011”, the [appointing authority] presumably meant [“17 February 2012”]’. Moreover, in the event of doubt there was nothing to prevent the applicant, having noticed an anomaly in the wording of the contested decision, from seeking clarification from the AECE.
It follows that the second plea must be rejected.
The third plea, alleging breach of the principle of the presumption of innocence
– Arguments of the parties
The applicant observes that, in the decision rejecting the complaint, the AECE alleges that he threatened and carried out a minor physical attack on his line manager at meetings which took place on 25 and 31 January 2012 respectively. Since those acts constitute criminal conduct, the AECE, inasmuch as it accepted those accusations before his guilt was proved before a criminal court, breached the principle of the presumption of innocence laid down by Article 48(1) of the Charter.
The ECDC contends that the Tribunal should reject that plea, arguing that Article 48(1) of the Charter concerns criminal proceedings and not internal administrative proceedings such as those in the present case. Furthermore, according to the ECDC, Ms D and Mr E witnessed the applicant’s actions, which are therefore established. In any event, the contested decision is based on a body of evidence proving the applicant’s insubordination, over and above the incidents when he behaved aggressively towards Ms B.
– Findings of the Tribunal
The Tribunal points out that the principle of the presumption of innocence is a fundamental right which the European Union Courts must ensure is observed by the institutions. That right is identified in case-law as a general principle applicable to administrative proceedings having regard to the nature of the infringements in question and the nature and degree of severity of the ensuing penalties. It follows that the right to a presumption of innocence applies, even in the absence of a criminal prosecution, for an official accused of a breach of his obligations under the Staff Regulations which is sufficiently serious to warrant an investigation by OLAF, in the light of which the administration may adopt any measure it deems necessary, however severe (judgment in
BD
v
Commission
, F‑36/11,
EU:F:2012:49
, paragraph 51 and the case-law cited therein).
In the present case, that right might have been violated had the ECDC decided to terminate the applicant’s contract solely on the basis of the accusations made with regard to him by his line manager, without ever having given the applicant the opportunity to explain himself or ascertaining whether the criticism of him was justified (see, to that effect, judgment in
Apostolidis
v
Court of Justice
, T‑86/97,
EU:T:1998:71
, paragraph 47). However, here, the contested decision was adopted after an inquiry had been conducted during the course of which the applicant had been given the opportunity to state his views. In such circumstances, there is no issue of a breach of the principle of the presumption of innocence.
The present plea must therefore be dismissed as unfounded.
The fourth plea, alleging breach of the duty of due diligence
– Arguments of the parties
The applicant submits that, if the findings of the inquiry into the allegations of harassment and those of the inquiry into the accusations of insubordination warranted the termination of his contract, he should have been granted the status of a member of staff who was personally involved for the purposes of Article 1(1), first sentence, and Article 2(1) of Annex IX to the Staff Regulations. However, the ECDC failed to inform him of the rights of the defence to which he was entitled by virtue of those provisions of the Staff Regulations and, in so doing, breached its duty of due diligence.
The ECDC contends that this plea should be rejected as unfounded.
– Findings of the Tribunal
The Tribunal observes that, first, so far as the inquiry into the allegations of harassment is concerned, the member of staff personally involved was not the applicant but his line manager, whom the applicant had accused of psychological harassment. It follows that the applicant cannot claim to be entitled to the rights associated with the status of a member of staff who is personally involved and cannot legitimately criticise the ECDC for failing to inform him of those rights.
Secondly, so far as the inquiry into the accusations of insubordination is concerned, the Tribunal recalls that, pursuant to Article 2(1) of Annex IX to the Staff Regulations, the member of staff in question has the right to be heard before the adoption of the final conclusions of the administrative investigation, to be informed when the investigation ends and to receive the investigation report.
In the present case, the investigator forwarded the draft report of the inquiry into the accusations of insubordination to the applicant by e-mail of 24 January 2012, requesting him to comment. In addition, the investigator notified the applicant by e-mail of 25 January 2012 that he was going to send that document to the Director, thereby informing him of the closure of the inquiry.
It follows that, since the applicant has not proved any infringement of his rights of the defence in either inquiry procedure, the present plea must be rejected as unfounded.
The fifth plea, alleging a failure to grant access to the inquiry files
– Arguments of the parties
The applicant alleges that he received neither the final report of the inquiry into the allegations of harassment nor the documents on which the final report on insubordination is based, in breach of Article 2(2) of Annex IX to the Staff Regulations, of Article 26 of the Staff Regulations, ‘in particular the second paragraph thereof [regarding] the use of documents against [officials], and the paragraph before last [regarding] access to one’s personal file’ and of Article 13 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (
OJ 2001 L 8, p. 1
).
The ECDC contends that the Tribunal should reject that plea as unfounded.
– Findings of the Tribunal
First, even if it were to be established that Article 2(2) of Annex IX to the Staff Regulations had been infringed, that would be of no consequence for the assessment of the contested decision, since that decision was taken on the basis of Article 47(b)(ii) of the CEOS and not on the basis of the provisions relating to the disciplinary procedure.
Next, as regards the applicant’s allegation that Article 13 of Regulation No 45/2001 was infringed, he claims in the application that he requested access to the final report of the inquiry into the allegations of harassment by e-mail of 5 March 2012 and to ‘all documents not already communicated to [him]’ relating to the inquiry into the accusations of insubordination and the inquiry into the allegations of harassment by e-mail of 16 April 2012.
Those requests were both made after the adoption of the contested decision on 24 February 2012. Consequently, the ECDC’s refusal to grant them cannot affect the validity of the contested decision.
In any event, it appears that the applicant makes no reference in either of the abovementioned e-mails to his personal data, be that to request confirmation that data related to him was being processed by the ECDC, to request information as to the purposes of the processing operation, to obtain communication of the data undergoing processing or to obtain knowledge of the logic involved in any automated decision process. Accordingly, in that context the reference to Article 13 of Regulation No 45/2001 is irrelevant.
Lastly, the complaint alleging infringement of Article 26 of the Staff Regulations, for its part, must be rejected, since the applicant has not proved that he requested access to his personal file.
Furthermore, as regards the ECDC’s refusal to send the final report of the inquiry into the allegations of harassment to the applicant, it must be recalled that, as regards a decision closing without further action an investigation initiated in response to a request for assistance submitted under Article 24 of the Staff Regulations, the Staff Regulations do not impose any express obligation to send to the complainant either the final report of the administrative investigation or the records of the interviews conducted during that investigation (judgment in
Tzirani
v
Commission
,
EU:F:2013:115
, paragraph 132).
The fifth plea, alleging breach of the applicant’s right of access to the files of both inquiries, must therefore be rejected as unfounded.
The sixth plea, alleging that both investigators were unsuitable
– Arguments of the parties
The applicant submits that the two members of staff of the ECDC who led the inquiry into the allegations of harassment and the inquiry into the accusations of insubordination respectively were inexperienced and he calls into question their independence.
The ECDC contends that the Tribunal should reject that plea as unfounded.
– Findings of the Tribunal
It is appropriate to point out that the institutions have wide discretion in the choice of person to whom they entrust an administrative inquiry into accusations of insubordination, including an inquiry into alleged harassment (judgment in
Tzirani
v
Commission
EU:F:2013:115
, paragraph 121). In that context, the institutions are required to choose a person suitable for the delicate task entrusted to him or her, without however the experience of that person as an investigator being a decisive factor in that choice.
In the light of that wide discretion, the applicant cannot legitimately challenge the ECDC’s choice on the sole basis of the alleged inexperience of the investigators and without even having attempted to prove that the AECE used its discretion in a way that is manifestly incorrect.
Furthermore, the applicant merely observed that, prior to the initiation of both inquiries, he had drawn attention to facts suggesting that an unlawful act had been committed in connection with the use of the ECDC’s funds, in which the Director and the Scientific Director of the ECDC were allegedly implicated, and that the two investigators were the Head of the Public Health Communication and Capacity unit, who was a direct subordinate of the Director, and the Deputy Scientific Director of the ECDC.
However, the applicant has not furnished the Tribunal with any evidence or indicia of a possible lack of independence on the part of the two investigators.
The sixth plea must therefore be rejected.
The eighth plea, alleging infringement of Article 2(3) of Annex IX to the Staff Regulations
The applicant submits that the ECDC, in breach of Article 2(3) of Annex IX to the Staff Regulations, has failed to adopt any general implementing provisions for that article.
It is, however, sufficient, in order to reject this plea as inoperative, to observe, as the Tribunal has done in paragraphs 81 and 82 above, that the contested decision was not adopted on the basis of the disciplinary procedure governed by Annex IX to the Staff Regulations but on the basis of Article 47(b)(ii) of the CEOS.
The ninth, eleventh and twelfth pleas, alleging manifest errors of assessment as to the facts
– Arguments of the parties
The ninth, eleventh and twelfth pleas all allege manifest errors of assessment as to the facts and must therefore be examined together.
In the ninth plea, the applicant observes that the contested decision referred to him as being responsible for the ‘severe conflict’ with Ms B. However, he submits that the final report on insubordination did not impute the responsibility for that conflict to him and that the ECDC has not submitted enough evidence to prove that he was to blame.
The eleventh plea concerns the fact that the contested decision refers to ‘subsequent behaviour’ brought to the Director’s attention consisting of insubordinate conduct which took place between 10 January and 24 February 2012.
In that regard, the applicant states, in the first place, that the alleged insubordinate conduct in question was reported by Ms B, who is not credible. Ms B had reasons to be ill-disposed towards him because he had reported to his management acts of psychological harassment to which he considered himself to have been subject on her part. In addition, in his view, when Ms B reported that conduct, she was still under probation and therefore might have felt pressure from her management; moreover, she was unsuitable for her role and made, or at least accepted, the decision to employ unlawfully a member of staff, the applicant having brought that unlawful act to the Director’s notice. Lastly, Ms B refused, on several occasions, to allow the dialogues of her meetings with the applicant to be recorded. The applicant requests the Tribunal to order several measures of organisation of procedure in order to confirm his allegations.
In the second place, the applicant disputes that all the behaviour of which he was accused in the decision rejecting the complaint actually took place.
The twelfth plea alleges a number of manifest errors of assessment which, according to the applicant, vitiate the inquiry into the accusations of insubordination. In particular, the investigator systematically refused to take into consideration documents which might have exonerated the applicant or at least constituted extenuating circumstances.
The ECDC contends that those three pleas should be rejected.
– Findings of the Tribunal
First, the early termination of a contract of a member of the contract staff under Article 47(b)(ii) of the CEOS may be based on conduct of the staff member concerned leading to a breakdown in the relationship of trust between that person and the AECE. Secondly, as the competent authority has wide discretion, review by the Courts of the European Union must be limited to ensuring that there has been no manifest error or misuse of powers (see, by analogy, as regards members of the temporary staff, judgments in
ETF
v
Michel
, T‑108/11 P,
EU:T:2013:625
, paragraph 77, and
CT
v
EACEA
,
EU:F:2013:190
, paragraph 43 and the case-law cited therein).
In that context, in order to establish that the administration committed a manifest error in assessing the facts which would justify the annulment of a decision taken on the basis of that assessment, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent (see, to that effect, judgment in
Mocová
v
Commission
, F‑41/11,
EU:F:2012:82
, paragraph 44 and the case-law cited therein).
In the present case, the reason for the contested decision is essentially the irreparable breakdown in the relationship of trust between the applicant and his management, a breakdown which is attributable not to a specific isolated episode but to a series of actions and omissions by the applicant between November 2011 and February 2012. In the contested decision, the Director states, inter alia, that the applicant has ‘significant difficulty in accepting management decisions, … repeatedly refused to perform tasks and … behaved in an obstructive and provocative manner’.
It is sufficient, first, to observe that the applicant is attempting, including in his application, to call into question the competence of his line manager on the basis of allegations unsupported by evidence, in order to dispute the criticism levelled at himself. In the eleventh plea, he submits that, because the members of the selection board responsible for recruiting Ms B ‘were merely medical professionals’, there was ‘an increased likelihood that [Ms B] was more-or-less unsuitable for her position [as Head of the Legal Service], and would therefore commit errors of judgment when assessing the appropriateness [or lack thereof] of her subordinates’ conduct’.
Secondly, it is very clear from the file that the applicant, as the Director observed, did in fact have difficulty in accepting management decisions.
As an example, the Tribunal points out that, following a straightforward request from Ms B on 8 November 2011 to send her a brief summary of the cases he was working on, the applicant responded by asking if she had not received the written overviews he had sent her predecessor prior to going on holiday in mid-October 2011 (see paragraphs 10 and 11 above).
In addition, on 14 December 2011, Ms B requested the applicant to update the list of ongoing tasks he had prepared in September by classifying them according to their urgency. The applicant replied the same day by sending a list which did not comply with the instructions given. Subsequently, on 19 December 2011, after several e-mail exchanges with Ms B. and after complaining about his workload, the applicant finally sent her a new list of the ongoing cases which had been assigned to him, once again without complying with Ms B’s instructions.
When challenged about his failure to draw up the list in accordance with his instructions, the applicant merely referred, in an e-mail of 20 December 2011 at 10.32, to Ms B’s ‘possible lack of (significant) managerial experience/expertise’, stating that the instructions given by Ms B were not the same as those given by her predecessor and that preparing two lists of cases — those ‘active’ and those ‘suspended’ — would ‘cause [him] significant practical difficulty’, while requesting his line manager to adopt ‘a relaxed approach’.
Furthermore, the applicant sought in his application to justify his attitude by asserting that ‘[that] list is a document serving in principle [the] personal use [of a Legal Officer in the Legal Service]; … a Head of [the Legal Service] does, or at least should, maintain and update… [his] own list of cases [he] assigns to subordinates, especially where the [Legal Service he] heads consists of only three subordinates; … the particular wishes of [the Head of the Legal Service] as to the formatting and categorisation of the content of that list were not constructive, and in any case were neither substantial [n]or crucial’.
As the ECDC rightly maintains, preparing a straightforward list of open files is a task which any official or member of staff must be able to perform at short notice at the request of his line manager, without that task entailing numerous e-mail exchanges and the questioning, by the member of staff concerned, of his line manager’s managerial ability. Moreover, such a list is not a ‘document serving … [the] personal use [of a Legal Officer in the Legal Service]’ as claimed by the applicant. It is a basic tool allowing any official or member of staff with managerial duties to have an overview of all the information regarding the progress of the tasks assigned to the members of his team. It is therefore open to any official or member of staff with managerial duties to request his subordinates to prepare such a list in the form which he considers to be most appropriate, without being bound by the format established by his predecessor.
Furthermore, the file shows, as the ECDC contends, that the applicant called into question, repeatedly and in an ‘obstructive and provocative’ manner, his line manager’s competence both as Head of Unit and as a lawyer.
As an example, it is sufficient to refer, first, to an e-mail of 16 December 2011 at 14.35 in which the applicant wrote to Ms B in the following terms: ‘… With time, you will probably become more familiar with how data protection works and will be able to set your deadlines more suitably (in this sense: you have never before worked as a Data Protection Officer or have had experience or formal training in this field, have you?) …’.
Secondly, still on 16 December 2011, at 16.17, the applicant sent Ms B an e-mail containing the following comments: ‘…may I again ask whether you have worked as Data Protection Officer in the past, or have any other significant pertinent experience or formal training? As mentioned, [your] lack of experience may be a reason why the deadline in question may have been unfeasible to observe. …’
Thirdly, in an e-mail of 20 December 2011 at 11.51, the applicant addressed Ms B as follows: ‘… your view on “active case management” may be erroneous also due to your possible lack of (significant) managerial experience and expertise. If you could let me know what said experience and expertise consists in (I assume that as your subordinate I am entitled to know, aren’t I?), or even a managerial reference source, such as an industry standard or respected scholar, …. then I will be in a better position to ascertain whether your view rests on solid managerial knowledge or not — in the latter case, I will try to be more proactive in pointing out any of your instructions which I see may cause serious practical difficulties in the work of our Section and in our relations with other departments (although, of course, I will remain at your disposal for carrying out your instructions, should you confirm them). …’
Fourthly, also on 20 December 2011, the applicant sent another e-mail to Ms B, at 11.58, in which the following passage appears: ‘I am just wondering whether you have (significant) experience or formal training as manager and as data protection expert and still wonder why you refuse to tell me.’
Such e-mails sent by the applicant to his line manager in themselves prove that the Director did not commit any manifest error of assessment in finding, in the contested decision, 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.
The ninth, eleventh and twelfth pleas must therefore be rejected, without it being necessary to examine all the e-mail exchanges between the applicant and Ms B one by one or to order the measures of organisation of procedure requested by the applicant in the application.
The thirteenth plea, alleging infringement of the principle of proportionality
– Arguments of the parties
By his thirteenth plea, the applicant claims that, even on the assumption the facts alleged against him are established, the ECDC, in adopting the contested decision, breached the principle of proportionality inasmuch as it could have taken a measure other than dismissal and, in any event, one that was less severe.
The ECDC contends that the Tribunal should dismiss that plea as unfounded.
– Findings of the Tribunal
The Tribunal notes that, in this plea, the applicant confines himself to mentioning measures which the ECDC could have adopted instead of the termination of his contract, namely the alteration of working conditions within the ECDC, an attempt at mediation, his transfer to another department, the transfer of Ms B to another department or an extension of her probation or, lastly, the imposition of a disciplinary measure of a lesser severity.
However, for the applicant to prove breach of the principle of proportionality, it would have been necessary for him to put forward evidence or arguments proving that it would have been genuinely possible for the ECDC to implement the proposed measures, taking account of the fact that the contested decision is based on an irreparable breakdown in the relationship of trust with the ECDC. He has not done so. The various measures suggested by the applicant all presuppose, as the ECDC has observed, if not a relationship of trust between the ECDC and the applicant then, at the very least, the possibility of re-establishing a relationship of trust that has broken down.
In those circumstances, the thirteenth plea must be rejected.
The fourteenth plea, alleging the lack of competence of the signatory of the decision rejecting the complaint
The applicant points out that the decision rejecting the complaint was signed by the Deputy Scientific Director, by delegation of power of signature, on behalf of the Director. It is the applicant’s view that the Deputy Scientific Director did not have the power to adopt a decision on the basis of Article 90(2) of the Staff Regulations.
In the present case, the Tribunal has already held that the decision rejecting the complaint lacks any independent content (see paragraphs 70 to 72 above). Therefore, the annulment, should it be deemed necessary, of the decision rejecting the complaint would not affect the legality of the contested decision (see judgment in
Z
v
Court of Justice
, F‑88/09 and F‑48/10,
EU:F:2012:171
, paragraphs 226 and 227, which is the object of an appeal pending before the General Court, T‑88/13 P).
It should be added that, even if the Tribunal were to find that the decision rejecting the complaint is vitiated by a lack of competence and must consequently be annulled, such an annulment would leave in place the contested decision and would be of no benefit to the applicant (judgment in
van Heuckelom
v
Europol
, F‑43/09,
EU:F:2010:121
, paragraph 88).
It follows that the fourteenth plea is inoperative and must be rejected.
The fifteenth plea, alleging the lack of competence of the ECDC and the Tribunal to adjudicate on the accusations concerning criminal conduct
The applicant observes that the ECDC, in the decision rejecting the complaint, accuses him of criminal conduct, namely threats and a ‘[minor] physical attack’, carried out against the Head of the Legal Service at their meetings of 25 and 31 January 2012 respectively. He submits that neither the ECDC nor the Tribunal have jurisdiction to examine such conduct and the ECDC cannot legitimately rely on those accusations to justify the contested decision.
In actions brought by officials, claims before the EU judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the EU judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it (judgment in
Commission
v
Moschonaki
, T‑476/11 P,
EU:T:2013:557
, paragraph 73 and the case-law cited therein). The present plea is neither included in the complaint nor closely linked to any plea set out in the complaint, so must be declared inadmissible.
In any event, the Tribunal considers that, in order to reject that plea on the merits, it is sufficient to point out that the reason stated for the contested decision was the breakdown in the relationship of trust between the applicant and his management, caused by a series of actions and omissions by the applicant. First, the ECDC, in assessing whether there was a relationship of trust with the applicant, did not make a decision on any issue of criminal law. Secondly, the applicant has brought before the Tribunal an action concerning the legality of the contested decision and the responsibility of the Tribunal is solely to verify whether that decision is vitiated by one of the illegalities raised by the applicant. The Tribunal is therefore not required to resolve any issue of criminal law by ruling on an accusation of criminal conduct.
Accordingly, the fifteenth plea must be rejected.
It follows from all the foregoing that the plea alleging that, before adopting the contested decision, the AECE did not hear the applicant on the action which it intended to take as a result of his behaviour must be upheld and the contested decision annulled on that ground. The other pleas raised in support of the claim for annulment must be rejected.
The claims seeking reinstatement and compensation in respect of material harm
The applicant requests that, as a consequence of the annulment of the contested decision, the ECDC should be required, under Article 266 TFEU, to reinstate him in a post and to pay him all the emoluments he would have received from the date of entry into force of the contested decision together with default interest and minus the pecuniary compensation received under Article 47(b)(ii) of the CEOS and the unemployment allowance.
In the first place, it is settled case-law that it is not for the Tribunal, in an action brought under Article 91 of the Staff Regulations, to issue injunctions to the EU institutions (judgment in
De Bruin
v
Parliament
, F‑15/14,
EU:F:2014:236
, paragraph 37 and the case-law cited therein). The applicant’s claims must, on any view, be dismissed as inadmissible in so far as they seek his reinstatement within the ECDC.
In the second place, so far as concerns the claim for compensation in respect of the material harm suffered, under Article 266 TFEU it is incumbent on the institution whose act has been declared void to ‘take the necessary measures to comply with the judgment’ addressed to it. It follows that, at this stage, that claim for compensation is premature and therefore inadmissible (judgment in
CU
v
EESC
, F‑42/13,
EU:F:2014:106
, paragraph 56).
The claim seeking compensation in respect of non-material harm
Arguments of the parties
The applicant seeks compensation in respect of non-material harm stemming from the psychological impact and prejudice to his reputation caused by his dismissal. In support of that claim for compensation, he formally raises seven heads of claim. Since the sixth head of claim contains three separate heads of claim, the applicant’s pleadings must be interpreted as raising in total nine heads of claim in this respect.
In the first head of claim, the applicant seeks the award of ‘at least’ EUR 80 000 as compensation for the harm suffered in connection with the allegedly injurious nature of the reasons put forward by the ECDC to justify the contested decision together with the summary character of the termination of his contract, and the fact that a number of people were informed of both those circumstances.
In the second head of claim, the applicant seeks the award of ‘at least’ EUR 10 000 as compensation for the feeling of injustice stemming from his perception that he was ‘punished for having conscientiously observed his duty of reporting irregularit[ies]’.
In the third head of claim, the applicant seeks the award of ‘at least’ EUR 2 000 as compensation for the non-material harm caused by the fact that, between 20 December 2011 and 24 February 2012, he was ‘more-or-less informed’ that his behaviour might have ‘serious consequences’ but the ECDC failed to give him any information on those consequences, which left him in a state of anxiety.
In the fourth head of claim, the applicant seeks the award of ‘at least’ EUR 5 000 as compensation for the non-material harm flowing from the breach of his right to be heard, in particular as regards his alleged ‘subsequent behaviour’ and his responsibility for the ‘severe conflict’ with his management.
In the fifth head of claim, the applicant seeks the award of ‘at least’ EUR 3 000 as compensation for the non-material harm flowing from the fact that the inquiry into the accusations of insubordination and the inquiry into the allegations of harassment were conducted even though the ECDC had not adopted general implementing provisions pursuant to Article 2(3) of Annex IX to the Staff Regulations.
In the sixth head of claim, the applicant seeks the award of ‘at least’ EUR 7 000 as compensation for the non-material harm caused by the ECDC’s refusal to grant him full access to the file of the inquiry into the accusations of insubordination or to send him the file of the inquiry into the allegations of harassment.
In the seventh head of claim, the applicant submits that, from 30 April 2012, when his period of notice came to an end, he ceased to have access to the e-mails saved on an ECDC server and that the ECDC refused to grant access to that server, impliedly rejecting his request submitted on 24 April 2012 and rejecting, again impliedly, his complaint of 30 July 2012. He therefore seeks the award of ‘at least’ EUR 5 000 as compensation of the non-material harm caused by that refusal to grant access to his e-mails.
In the eighth head of claim, the applicant seeks the award of ‘at least’ EUR 2 500 in connection with the non-material harm he claims to have suffered on account of the ECDC’s decision not to send him certain information which he had requested on 18 November 2012 with a view to bringing judicial proceedings against his dismissal.
In the ninth head of claim, the applicant seeks the award of ‘at least’ EUR 2 000 as compensation for the non-material harm caused by the ECDC’s failure to provide an express reply to his complaint, or by the fact that the reply provided in the ‘letter of 18 September 2012’ is ‘so obviously ill-founded’ that it cannot be held to constitute a decision in response to his complaint.
The ECDC contends that the claim for compensation in respect of non-material harm should be rejected.
Findings of the Tribunal
It must be observed at the outset that, according to the case-law, the pre-litigation procedure differs according to whether the damage for which compensation is sought results from a decision having adverse effects within the meaning of Article 90(2) of the Staff Regulations or from conduct on the part of the administration which contains nothing in the nature of a decision. In the first case it is for the person concerned to submit to the appointing authority or the AECE, within the prescribed period, a complaint directed against the decision in question, and to make claims for compensation either in that complaint or, for the first time, in the application. In the second case, the administrative procedure must commence with the submission of a request, within the meaning of Article 90(1) of the Staff Regulations, for compensation and continue, where appropriate, with a complaint against the decision rejecting that request (judgment in
Skoulidi
v
Commission
, F‑4/07,
EU:F:2008:22
, paragraph 56 and the case-law cited therein).
Furthermore, the annulment of an illegal act in itself constitutes appropriate and, in principle, sufficient compensation for any non-material damage which that act may have caused, unless the applicant demonstrates that he suffered non-material damage separable from the illegality justifying the annulment and incapable of being entirely remedied by that annulment (judgment in
CP
v
Parliament
, F‑8/13,
EU:F:2014:44
, paragraph 105).
Lastly, the Tribunal points out that the contested decision was annulled solely because the applicant was not heard on the fact that the AECE intended to apply Article 47(b)(ii) of the CEOS, all the other pleas having been rejected.
In the present case, the Tribunal notes that the first, second, fourth, fifth and sixth heads of claim are closely linked to pleas which have been rejected.
In particular, the first head of claim is closely linked to the ninth, eleventh and twelfth pleas in the claim for annulment, in which, essentially, the applicant alleged that the ECDC committed several manifest errors of assessment. Those pleas were rejected as legally unfounded.
The second head of claim is closely linked to the second preliminary plea in the claim for annulment, which was rejected as unfounded.
The fourth head of claim is closely linked to the first, second and fourth complaints of the first plea in the claim for annulment, which were rejected as unfounded.
The fifth head of claim is closely linked to the eighth plea in the claim for annulment, which was rejected as inoperative.
Lastly, the sixth head of claim is closely linked to the fifth plea in the claim for annulment, which was rejected as unfounded.
Since the Tribunal has not found any of the illegalities on which the applicant bases his first, second, fourth, fifth and sixth heads of claim to be established, those heads of claim must be rejected.
So far as concerns the third head of claim, in paragraphs 122 to 131 above the Tribunal found that the ECDC had infringed the applicant’s right to be heard as regards the action which it intended to take as a result of his alleged behaviour, namely its intention to apply Article 47(b)(ii) of the CEOS. It must, however, be stated that there is nothing whatsoever in the application in Case F‑161/12 to show that the damage would not be entirely remedied by the annulment of the contested decision which is claimed to have caused it (judgment in
Gomes Moreira
v
ECDC
,
EU:F:2013:159
, paragraphs 130 and 131, and
Hall
v
Commission and CEPOL
, F‑22/12,
EU:F:2013:202
, paragraph 53).
In addition, at the hearing, the applicant claimed that he was in a similar situation to the applicant in the case which gave rise to the judgment in
CH
v
Parliament
(
EU:F:2013:203
), who was awarded EUR 50 000 as compensation for the non-material harm suffered following the termination of her contract as an accredited parliamentary assistant without her having been heard prior to that decision. However, even if the situation of the applicant in that case, whose dismissal was found by the Tribunal to have taken place in ‘questionable circumstances’ (judgment in
CH
v
Parliament
,
EU:F:2013:203
, paragraph 65), were to be deemed similar to the applicant’s situation, the fact remains that the applicant has not in his application expounded any argument in order to prove that, in the present case, the non-material harm suffered is incapable of being entirely remedied by the annulment of the contested decision. Accordingly, the third head of claim must be rejected.
The seventh and eighth heads of claim are not linked to the contested decision, but to other decisions of the ECDC.
In the seventh head of claim, the applicant disputes the implied decision rejecting a request he had submitted on 24 April 2012 for access to the server where the e-mail exchanges with Ms B were saved. However, it is apparent from the file that the applicant submitted a complaint on 30 July 2012, without waiting for the expiry of the four-month period provided for in Article 90(1) of the Staff Regulations. In the eighth head of claim, the applicant challenges the rejection of a request for information which he submitted on 18 November 2012 with a view to bringing judicial proceedings against his dismissal. Nevertheless, the file does not show that the ECDC replied to that request for information in the negative, or that the applicant submitted a complaint against a negative decision, if there was one, prior to the present claim for compensation. Both those heads of claim must therefore be rejected as inadmissible since the applicant did not correctly follow the procedure set out in Article 90(1) and (2) of the Staff Regulations.
So far as the ninth head of claim is concerned, it must be stated, first, that the ECDC, on 18 September 2012, replied to the applicant’s complaint by the decision rejecting the complaint and, secondly, that this decision provides a very comprehensive answer to the complaint in question. The mere fact that the applicant does not agree with the decision rejecting the complaint does not constitute a sufficient ground for alleging that the ECDC did not reply to the complaint. Accordingly, this head of claim must be rejected.
It follows from all the foregoing that the claim seeking compensation in respect of non-material harm must be rejected in its entirety.
It is apparent from all the foregoing that the claim for annulment must be upheld and the contested decision annulled on the ground that the applicant was not heard regarding the action which the AECE intended to take as a result of his behaviour. All the other claims in the two actions must be rejected.
Costs
Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 102(1) of the Rules of Procedure, the Tribunal may decide, if equity so requires, that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs. In addition, under Article 103(1) of the Rules of Procedure, where there is more than one unsuccessful party the Tribunal will decide how the costs are to be shared. Lastly, Article 103(2) of the Rules of Procedure provides that where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
It follows from the grounds set out above that the ECDC has been unsuccessful in Case F‑159/12, whereas the applicant has been unsuccessful in Case F‑161/12. Furthermore, both parties, in the form of order they sought, expressly requested that the other party be ordered to pay the costs of the two cases. However, in Case C‑159/12, although the Tribunal upheld the applicant’s claim for annulment it none the less rejected his claims for compensation. Therefore, the applicant has been in part unsuccessful in Case F‑159/12. The Tribunal has accordingly decided that, in Case F‑159/12, pursuant to Article 103(2) of the Rules of Procedure, the parties are to bear their own costs and that, in Case F‑161/12, pursuant to Article 101 of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the ECDC.
Moreover, under Article 108(a) of the Rules of Procedure, where the Tribunal has incurred expenditure which might have been avoided, it may order the party that caused it to incur that expenditure to refund it.
In the present instance, in Case F‑159/12 the applicant twice lodged statements in reply which did not comply with the instructions of the Tribunal as regards the number of pages and the issues to be examined. The applicant also twice refused to put his reply in order, despite the Tribunal’s requests for him to do so.
Moreover, by letter of 16 October 2013, the Tribunal drew to the applicant’s attention the option for the Tribunal to order a party who has caused avoidable expenditure to refund it, pursuant to Article 94(a) of the Rules of Procedure then in force, the content of which does not substantially differ, in terms of the conditions under which a party may be ordered to refund that expenditure, from that of Article 108(a) of the currently applicable Rules of Procedure. In that letter the Tribunal reminded the applicant of the case-law of the General Court concerning the analogous provisions of its Rules of Procedure, in particular the judgment in
Strack
v
Commission
(
EU:T:2012:691
). Lastly, at the hearing the applicant stated his view on the possibility that the Tribunal might decide to order him, under Article 94(a) of the Rules of Procedure then in force, to refund to the Tribunal the expenditure which it was unnecessarily forced to incur as a result of his conduct.
There is no doubt that the administrative handling and analysis of the two replies which were not in conformity with the Tribunal’s instructions entailed expenditure which might have been avoided (judgment in
Strack
v
Commission
,
EU:T:2012:691
, paragraphs 230 to 232).
It is therefore appropriate, having regard to the amount of the expenditure which the Tribunal was forced to incur and which might have been avoided, to order the applicant to refund to the Tribunal part of that expenditure, namely a sum of EUR 2 000.

On those grounds,
THE CIVIL SERVICE TRIBUNAL
(Second Chamber)
hereby:

1.
Annuls the decision of 24 February 2012 of the Director of the European Centre for Disease Prevention and Control terminating CJ’s contract as a member of the contract staff;

2.
Dismisses the action in Case F‑159/12 as to the remainder;

3.
Dismisses the action in Case F‑161/12;

4.
Declares that, in Case F‑159/12, the parties shall bear their own costs;

5.
Declares that, in Case F‑161/12, CJ shall bear his own costs and orders him to pay the costs incurred by the European Centre for Disease Prevention and Control in that case;

6.
Orders CJ, in Case F‑159/12, to pay the Tribunal a sum of EUR 2 000 in order to refund part of the avoidable expenditure which the Tribunal was forced to incur.

Rofes i Pujol
Bradley
Svenningsen
Delivered in open court in Luxembourg on 29 April 2015.
W. Hakenberg
Registrar
K. Bradley
President
(
*1
)	Language of the case: English.