Judgment — ECLI:EU:F:2016:157
Date: 2016-07-19
Language of the case: French
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - successful

Summary 1. Officials — Members of the temporary staff — Reports procedure — Staff report — Drawing up — Dialogue between the reporting officer and the staff member under appraisal — Scope — Difference compared with the discussion preceding a decision to terminate or not to renew a contract (Staff Regulations, Art. 43) 2. Officials — Members of the temporary staff — Dismissal — Adoption of the decision on the basis, inter alia, of relationship problems encountered by the official concerned — Lack of opportunity for the official concerned to submit prior observations on that ground for dismissal — Infringement of the right to be heard (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Conditions of Employment, Art. 47) 1. The dialogue between the reporting officer and the staff member under appraisal, which must take place annually as part of the appraisal procedure and which relates specifically to the efficiency, ability and conduct of the staff member concerned over a particular appraisal period, cannot be likened to the discussion between the authority authorised to conclude contracts of employment and the staff member concerned prior to a decision to terminate or not to renew a contract, a discussion that should be based on an assessment of overall performance over the periods of activity completed by that staff member. (see para. 29) See: Judgment of 18 September 2015 in Wahlström v Frontex, T‑653/13 P, EU:T:2015:652, para. 26 2. From the time the authority authorised to conclude contracts of employment gives as a ground for its decision to dismiss a staff member, inter alia, alleged relationship problems encountered by the person concerned in his working environment, Article 41(2)(a) of the Charter of Fundamental Rights of the European Union requires that authority to hear the person concerned with regard to that ground also. Compliance with that obligation enables that authority to examine with the person concerned whether the problems associated with his conduct in the service can actually be attributed to him or whether they are also linked to other circumstances, possibly to the conduct of other colleagues of the person concerned. By giving the person concerned a prior hearing with regard to that additional ground for dismissal, the authority authorised to conclude contracts of employment may, if appropriate, tackle with him the matter of whether he would be interested in reassignment. Hence, it cannot be excluded that, if the person concerned is heard with regard to that ground, he will in fact have the possibility of influencing the decision-making process at issue. Furthermore, the fact that, even if that authority had given the person concerned a prior hearing with regard to that additional ground for dismissal, it would have adopted a decision that was the same as the dismissal decision is irrelevant since that would amount to rendering nugatory the fundamental right to be heard affirmed in Article 41(2)(a) of the Charter, since that right implies that the person concerned should have the possibility of influencing the decision-making process at issue, particularly where his personal conduct or professional performance is expressly called into question in a dismissal decision. (see paras 30- 31) See: Judgment of 1 July 2010 in Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, para. 23 and the case law cited Judgment of 14 September 2011 in Marcuccio v Commission, T‑236/02, EU:T:2011:465, para. 115 Judgments of 14 May 2014 in Delcroix v EEAS, F‑11/13, EU:F:2014:91, para. 44, and of 5 February 2016, GV v EEAS, F‑137/14, EU:F:2016:14, para. 79