Information;Judgment — ECLI:EU:T:2021:456
Date: 2021-07-14
Language of the case: English
Court formation: Seventh Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible;Action for damages - unfounded;Staff cases - successful

summary table, for 2013 to 2018, of all the days of sick leave that she took during her employment. 69 Furthermore, in her reply to the measures of organisation of procedure sent to the parties after the opening of the oral part of the proceedings (see paragraph 27 above), the applicant submits that the AECE made a manifest error of assessment in considering that, during the period from 16 September 2013 to 8 May 2018, the number of days of paid sick leave was greater than the number of days worked. In that regard, she alleges that there were several errors in the calculation of the number of days of paid sick leave and of days worked. 70 eu-LISA replies that the applicant’s arguments summarised in paragraph 69 above are inadmissible. It underlines that they were put forward for the first time in the course of the present proceedings, even though the applicant was already aware of all the relevant details, so that she could have disputed those details before. According to eu-LISA, the right to challenge that information is therefore time-barred. 71 As was noted in paragraphs 58 and 59 above, new pleas in law, complaints or arguments may not be introduced in the course of proceedings unless they are based on matters of law or fact which have come to light in the course of the procedure. 72 It should be noted that the arguments summarised in paragraph 69 above, first, were presented for the first time in the applicant’s reply of 10 August 2020 to a written question of the Court (see paragraph 27 above) and, secondly, do not relate to the errors that she relied on in the application (see paragraph 68 above), in respect of which, by that question, the Court asked her to provide details. Furthermore, the applicant does not rely on matters of law or of fact that came to light in the course of the procedure. As follows from the observations of eu-LISA of 14 October 2020 (see paragraph 28 above), at the beginning of each year, it sent the applicant a summary table listing, for the previous year, her days present and days absent, specifying the status of every day or half-day of absence, in particular in respect of annual leave or sick leave with or without a certificate. Those arguments are therefore out of time and must, accordingly, be rejected as inadmissible. 73 As regards the applicant's argument that part-time work on medical grounds was incorrectly counted as falling in part within sick leave, which was put forward, inter alia, in the application (see paragraph 67 above), the applicant submits that the scheme for part-time work on medical grounds does not come within the definition of ‘absence as a result of sickness’ within the meaning of Commission Decision C(2004) 1597 of 28 April 2004, introducing implementing provisions on absences as a result of sickness or accident. In her view, that scheme is an arrangement with a view to reinstatement, as is confirmed by the fact that, according to the abovementioned decision, an application for that scheme must be submitted in good time in order to enable the medical service to reach a decision, in particular where part-time work on medical grounds follows a period of sick leave. 74 It must be noted that the decision referred to in paragraph 73 above does not preclude the AECE’s interpretation. It is common ground that, under the scheme for part-time work on medical grounds provided for in that decision, the applicant was authorised not to work half of the day because her health did not permit her to be in full-time employment, but retained her right to remuneration. Since it is because of her state of health that the applicant was authorised not to work for half-days while retaining her pay, those days can only fall within sick leave. That argument must therefore be rejected on the merits. 75 As regards the applicant’s argument set out in the application, summarised in paragraph 68 above, that there are inconsistencies concerning 34 days of unjustified absences, it must be borne in mind that Article 59(2) and (3) of the Staff Regulations, applicable by analogy to members of the temporary staff under the first paragraph of Article 16 of the CEOS, is worded as follows: ‘2. If, over a period of 12 months, an official is absent for up to three days because of sickness for a total of more than 12 days, he shall produce a medical certificate for any further absence because of sickness. His absence shall be considered to be unjustified as from the thirteenth day of absence on account of sickness without a medical certificate. 3. … any absence considered to be unjustified under [paragraph 2] shall be deducted from the annual leave of the official concerned. In the event that the official has no outstanding leave entitlement, he shall lose the benefit of his remuneration for the corresponding period.’ 76 Thus, eu-LISA was entitled to deduct, from the number of days of annual leave to which the applicant was still entitled, her days of absence, which, it is not disputed, were not covered by a medical certificate and which exceeded the 12 days referred to in Article 59(2) of the Staff Regulations. 77 As is apparent from one of the tables relied on by the applicant, relating to 2017, 34 days of unjustified absence were covered by the annual leave available to her. That table contains details, for each month of that year, of the days worked, public holidays, annual leave and unjustified absences covered by annual leave. By contrast, the other table relied on by the applicant summarises, for each year between 2013 and 2018, the number of days worked and the number of days of sick leave, with and without a medical certificate. Since the latter table is intended to summarise the days of leave for those two categories alone and does not therefore include a box devoted to unjustified absences covered by annual leave in accordance with the provisions set out in paragraph 75 above, the 34 days referred to above could not be included in that table. However, the two tables are consistent with each other, in that they show that, in 2017, the applicant worked for 13.5 days and was on paid sick leave for 150.5 days. 78 Therefore, the applicant’s argument referred to in paragraph 68 above must be rejected. 79 In the light of the foregoing considerations, it must be concluded that the applicant’s arguments do not call into question the finding, made by the AECE in the contested decision that, on the date of that decision, the applicant had attained the threshold in question. However, as a result of the error found in paragraph 55 above, that threshold had been exceeded by 73 days, and not by 86 days. 80 Since the condition relating to the fact that the threshold in question was attained is satisfied, it is necessary to examine the applicant’s arguments relating to the AECE’s discretion. The AECE’s discretion 81 The applicant claims that, once the threshold in question is exceeded, the AECE is not required to terminate the contract of the member of staff concerned under Article 48(b) of the CEOS, but has a discretion. According to the applicant, the AECE was therefore wrong, in the contested decision, to rely exclusively on the fact that her number of days of sick leave was greater than her number of days worked. 82 First, it should be recalled that, according to the case-law, the use of the verb ‘may’ in Article 48 of the CEOS indicates that termination of the employment is an option the use of which is subject to a certain discretion on the part of the administration, unlike the cessation of remuneration which, under the third paragraph of Article 16 of the CEOS, automatically occurs on expiry of the period laid down in the second paragraph of Article 16 of the CEOS (see, to that effect, judgment of 11 June 2019, TO v EEA, T‑462/17, not published, EU:T:2019:397, paragraph 87). 83 Secondly, the second paragraph of Article 16 of the CEOS must be read in the light of Article 34(1) of the Charter, which provides that the Union recognises and respects, as a fundamental right, the entitlement to social security benefits and social services providing protection in cases such as illness and seeks, in the event of illness, to protect temporary staff members against the social and economic risks stemming from that state and thus contributes towards an objective as compelling as the protection of health (judgment of 11 June 2019, TO v EEA,T‑462/17, EU:T:2013:397, paragraph 91). 84 Thirdly, where an institution has a discretion, it must exercise that discretion fully. Thus, the institution which has adopted the measure must be able to show before the Courts of the European Union that in adopting that measure it actually exercised its discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the measure was intended to regulate (see judgment of 10 October 2019, Société des Produits Nestlé v EUIPO – European Food (FITNESS), T‑536/18, not published, EU:T:2019:737, paragraph 38 and the case-law cited). 85 Fourthly, according to the case-law, where the administration uses its discretion to adopt a dismissal decision, it must take into consideration all the factors which may affect its decision and take all necessary steps to ensure that those factors are present before terminating the employment of a member of staff. In particular, the competent authority must take into account the interests of the service, but also, in order to fulfil its duty of care, the interests of the staff member concerned (judgment of 11 June 2019, TO v EEA, T‑462/17, not published, EU:T:2019:397, paragraph 88; see also, to that effect, judgment of 23 October 1986, Schwiering v Court of Auditors, 321/85, EU:C:1986:408, paragraph 18). Furthermore, the obligations arising for the administration from the duty of care are substantially enhanced where the situation of a member of staff whose physical or mental health is shown to be affected is involved (see, to that effect, judgment of 7 November 2019, WN v Parliament, T‑431/18, not published, EU:T:2019:781, paragraph 106). 86 In accordance with those principles, in the present case, since the threshold in question was exceeded, the AECE was required to take note of this and to place the applicant on unpaid leave, pursuant to the third paragraph of Article 16 of the CEOS. 87 By contrast, the AECE could terminate the applicant’s contract, pursuant to Article 48(b) of the CEOS, only if such a decision, which entailed more serious consequences for the applicant, was in the interest of the service, which had to be assessed by the AECE in the light of all the relevant factors and circumstances, in the exercise of the AECE’s discretion in that regard and which should be demonstrated in the contested decision. 88 By merely finding, in the contested decision, in order to justify the termination of the applicant’s contract, that the threshold in question was exceeded, the AECE failed to carry out an overall assessment of all the relevant factors and circumstances, such as the applicant’s ability and willingness to resume her duties, the state in which her prolonged absence had placed the service of which she was part and the interests of that service which had to be weighed against the applicant’s interests. Nor does such an assessment appear in the decision rejecting the complaint, in which the AECE took the view that, once the threshold in question was exceeded, the rule was to terminate the contract without notice. 89 Moreover, the contested decision is based on an interpretation of the second and third paragraphs of Article 16 and Article 48(b) of the CEOS which does not take account of Article 34 of the Charter, whereas the AECE was required to take that provision into consideration. Although Article 34 of the Charter cannot provide a member of staff with complete protection against dismissal, a reading of the relevant provisions of the CEOS in the light of that article precludes the interpretation adopted by the AECE in the contested decision, that termination of the contract is the rule which automatically applies and the exception is to be placed on unpaid leave. 90 Therefore, it must be held that eu-LISA did not exercise its discretion, in breach of both the second and third paragraphs of Article 16 and Article 48(b) of the CEOS, read in the light of Article 34 of the Charter, and of its duty of care. 91 That conclusion is not called into question by the argument of eu-LISA that the approach taken by the Court in the case which gave rise to the judgment of 11 June 2019, TO v EEA (T‑462/17, not published, EU:T:2019:397), is irrelevant in so far as, in the present case, the applicant’s employment was terminated at a later stage, several months after the threshold in question was exceeded, whereas, in that case, termination took place only a few days after that threshold was exceeded. 92 Those factual differences relating to the date of termination of the contract at issue have no effect on eu-LISA’s obligation to exercise its discretion before terminating the applicant’s contract and, consequently, to examine all the information available to it. 93 Accordingly, it must be found that, by adopting the contested decision, eu-LISA infringed the second and third paragraphs of Article 16 and Article 48(b) of the CEOS, read in the light of Article 34 of the Charter, and the duty of care. 94 It must therefore be held that the contested decision must be annulled, without it being necessary to examine, at this stage, the other pleas put forward by the applicant. The claim for damages 95 The applicant submits that the conditions for establishing liability on the part of the European Union are met, with the result that she is entitled to payment in full of her remuneration until 15 September 2018, less unemployment benefit, together with default interest on the amount of that remuneration. She also seeks an examination of her state of health under Article 33 of the CEOS and compensation for the non-material damage which she assesses ex aequo et bono at EUR 10 000. 96 According to the applicant, the unlawfulness of eu-LISA’s conduct is evidenced by the unlawful acts referred to in the first to fourth and sixth pleas in law relied on in support of the claim for annulment (see paragraph 38 above). She alleges that those infringements are sufficiently serious to incur the liability of the European Union in that they result in an application of Articles 16 and 48 of the CEOS, which is contrary, inter alia, to Articles 31, 34 and 35 of the Charter. In her opinion, that seriousness stems from the fact that the applicant, who is ill, lost the benefit of social security and health protection in the context of her employment and that that employment relationship ended without notice, depriving her of her pay and potential protection against invalidity. 97 It should be recalled that, as regards the civil service, the European Union is required to make good any damage caused by its institutions, bodies, offices and agencies or by their servants in the performance of their duties. According to settled case-law, in civil service matters, in order for the European Union to incur liability, a number of conditions must be satisfied: the conduct alleged against the institution, body, office or agency must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage complained of. Those three conditions are cumulative, so that, if one of them is not satisfied, the European Union cannot be held liable (see, to that effect, judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 97 and the case-law cited). 98 As regards the condition concerning the unlawfulness of the conduct alleged against the administration it should be recalled that it follows from the case-law that where it acts in its capacity as employer, the European Union has a greater degree of responsibility, in the form of the duty to make good damage caused to its staff by any unlawful act committed in its capacity as employer (see judgment of 11 June 2019, TO v EEA, T‑462/17, not published, EU:T:2019:397, paragraph 100 and the case-law cited). 99 As regards the requirement that there must be actual damage, the European Union can incur liability only if the applicant has in fact suffered actual and certain loss. It is for the applicant to adduce evidence before the EU judicature to establish the existence and the extent of such loss (see judgment of 11 June 2019, TO v EEA, T‑462/17, not published, EU:T:2019:397, paragraph 101 and the case-law cited). 100 As regards the condition relating to the causal link required to render the European Union liable, it is necessary for a direct and certain causal nexus to be established between the unlawful act committed by the EU institution and the damage pleaded. The alleged conduct must therefore be the determining cause of the alleged damage (see judgment of 11 June 2019, TO v EEA, T‑462/17, not published, EU:T:2019:397, paragraph 102 and the case-law cited). 101 It is in the light of those considerations that the applicant’s complaints in support of her claim for damages must be examined. The unlawfulness of the alleged conduct 102 Since it has been held that the second, fourth and fifth pleas relied on by the applicant are well founded, to the extent specified in paragraphs 90 to 93 above, it must be held that the contested decision is unlawful on account of the infringement of the second and third paragraphs of Article 16 and Article 48(b) of the CEOS, read in the light of Article 34 of the Charter, and of the duty of care. 103 Since the applicant, in her claim for damages, asks the Court to order eu-LISA to examine her state of health, it is appropriate to rule on the arguments which she puts forward relating to the AECE’s breach of its duty of care on account of that failure to examine her state of health. 104 The applicant submits that, under Article 16 of the CEOS, the administration was also obliged to determine whether she was suffering from an occupational disease or whether she had suffered an accident at work. Furthermore, before terminating the contract, the AECE was required to ascertain whether she satisfied the conditions entitling her to receive an invalidity pension. The applicant states that she intended to request the initiation of the procedure laid down for that purpose, but that she was prevented from doing so by the adoption of the contested decision. 105 eu-LISA disputes the applicant’s arguments. 106 It should be recalled that, on 13 December 2005, the EU institutions adopted common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease, which entered into force on 1 January 2006 (‘the common rules’). 107 It is apparent from Article 1 of the common rules that they apply to temporary and contract staff. 108 Articles 15 and 16 of the common rules provide that, in order to obtain recognition of the occupational nature of an accident or disease, the staff member concerned must submit a statement initiating a procedure at the end of which the competent authority decides on such recognition. 109 First of all, it is not disputed that the applicant has not submitted an application for recognition of an accident within 10 working days following the incident which occurred on 27 June 2017 (see paragraph 8 above), as is required under Article 15 of the common rules. Furthermore, the applicant has not put forward any other incident capable of justifying such an application. 110 Next, it is apparent from the documents before the Court that the applicant did not submit any declaration for recognition of the occupational origin of her disease with eu-LISA’s administration. 111 It must therefore be held that the applicant, although entitled to do so, did not take the necessary steps to obtain recognition of the occupational nature of an accident or of her disease. Consequently, the AECE cannot be criticised for not initiating a recognition procedure, which it was for the applicant alone to initiate. 112 Finally, it should be borne in mind that the procedure for recognising a member of staff’s invalidity involves, under Article 33(2) of the CEOS, referral to the Invalidity Committee provided for in Article 9(1) of the Staff Regulations. 113 Under Article 59(4) of the Staff Regulations, applicable by analogy to members of the temporary staff, pursuant to the first paragraph of Article 16 of the CEOS, the AECE may refer to that committee on its own initiative the case of a staff member whose sick leave totals more than 12 months in any three-year period. However, it should be recalled that, irrespective of whether the length of the sick leave is sufficient to enable that provision to be applied, it confers a discretion and not an obligation on the AECE to refer a case to that committee (see, to that effect, judgment of 16 June 2000, C v Council, T‑84/98, EU:T:2000:156, paragraph 68). 114 It is common ground, moreover, that the applicant did not request the initiation of such a procedure or express an intention to do so before the adoption of the contested decision. Since the applicant’s sick leave began in 2016, that is to say, on a date considerably before the termination of her contract, it cannot be found that she was prevented from taking such an initiative. 115 It is true that the duty of care imposes on the administration the obligations referred to in paragraph 85 above. However, it does not follow that it is required itself to carry out a check which the staff member could herself request under the procedures laid down in the CEOS. If the administration’s duty of care had the effect of transforming an option into an obligation for the administration, it would alter the balance of rights and obligations established by the Staff Regulations in the relationship between the public authority and civil servants, whereas its purpose is to reflect that balance (judgments of 16 April 2008, Doktor v Council, F‑73/07, EU:F:2008:42, paragraph 42, and of 6 November 2014, DH v Parliament, F‑4/14, EU:F:2014:241, paragraph 76). 116 Therefore, it must be concluded that the fact that the AECE, before terminating the applicant’s employment, did not check whether she had suffered an accident, was suffering from an occupational disease or satisfied the conditions entitling her to receive an invalidity pension does not constitute unlawfulness for which the European Union can be held liable. 117 The applicant’s head of claim seeking an order that eu-LISA examine her state of health must therefore, in any event, be dismissed, without it being necessary to examine its admissibility, which is disputed by eu-LISA, on the ground that it is not for the Court, in an action brought under Article 91 of the Staff Regulations, to issue directions to the EU institutions. The material damage 118 The applicant claims to have suffered material damage characterised by the loss of her remuneration. 119 Since the contested decision is unlawful, in that it led to the termination of the applicant’s contract without notice and with immediate effect from 8 May 2018, it is necessary to assess what the applicant’s situation would have been in the absence of that unlawfulness. 120 As follows from paragraph 10 above, the applicant’s contract was not renewed and her employment therefore did not continue beyond 15 September 2018, the date on which that contract expired. 121 Therefore, the material damage claimed by the applicant is the difference between the amount corresponding to the remuneration which she could have received for the period from 8 May 2018 to 15 September 2018 and the compensation which she received under the last sentence of Article 48(b) of the CEOS, as referred to in paragraph 43 above. 122 In the first place, as follows from paragraph 86 above, the applicant should, having regard to the third paragraph of Article 16 of the CEOS, have been placed on unpaid leave automatically from the date on which the number of days of paid sick leave which she had taken exceeded the number of days worked. 123 It is apparent from paragraph 79 above that the AECE established that the balance of the applicant’s days worked was exceeded by the number of her days of sick leave, which is the condition for the application of the third paragraph of Article 16 of the CEOS. Moreover, the threshold in question was exceeded before the date on which the contested decision was adopted, so that, under that provision, which does not confer a discretion on the AECE, the applicant should have been placed on unpaid leave before that date. 124 In the second place, it has not been established, in the light of the documents before the court, that the applicant was in a position to resume her duties on the date of the contested decision. She had submitted a medical certificate placing her on sick leave until 31 May 2018 and did not produce any evidence to call into question the fact that she was not in a position to return to work before that date. Nor did she express the intention to resume her duties at the end of that period. Furthermore, it should be noted that the applicant’s argument is contradictory in that she claims, on the one hand, that, on the date of termination of her employment, she was willing and able to be employed and, on the other hand, that she intended to request the initiation of an invalidity procedure. 125 In addition, she states that she could have resumed such activity only under flexible arrangements such as teleworking or transfer to another agency site. Yet, according to settled case-law concerning Article 7 of the Staff Regulations, the institutions have wide discretion to organise their departments to suit the tasks entrusted to them and to assign staff available to them in the light of such tasks, on condition, however, that the staff are assigned in the interests of the service and in conformity with the principle of assignment to an equivalent post (judgments of 7 March 1990, Hecq v Commission, C‑116/88 and C‑149/88, EU:C:1990:98, paragraph 11, and of 16 December 2004, De Nicola v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, paragraph 84). 126 It is clear from a letter of 23 January 2018 that eu-LISA took the view that the applicant could not be granted teleworking, since the tasks required for the post to which she had been transferred in the meantime (see paragraph 3 above), [confidential], could not be carried out remotely, which the applicant did not dispute. 127 Thus, it has not been established that the applicant could have resumed her duties on a date close to that of the contested decision and could therefore have again received her remuneration. Consequently, the applicant has not shown that, if the AECE had not terminated her contract by adopting the contested decision, she would have continued to receive her remuneration beyond 8 May 2018. 128 Since the applicant would, in any event, have been placed on unpaid leave if her contract of employment had not been terminated and as that situation would have been less favourable to her, from a financial point of view, than that resulting from the grant of the compensation provided for in Article 48(b), which she received, it must be held that the applicant has not demonstrated either the existence of the material damage alleged or that there was a causal link between the unlawfulness of the contested decision and that damage. The non-material damage 129 The applicant seeks compensation for the non-material damage which she claims to have suffered as a result of the unlawful act committed by the AECE when adopting the contested decision. 130 It should be borne in mind that, according to settled case-law, the annulment of an unlawful act may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material damage which that act may have caused, unless the applicant shows that he or she has suffered non-material damage which is separable from the unlawfulness which is the basis for the annulment and which cannot be compensated in full by that annulment (see judgment of 11 June 2019, TO v EEA, T‑462/17, not published, EU:T:2019:397, paragraph 130 and the case-law cited). 131 In the present case, the applicant has not shown that the non-material damage alleged cannot be compensated in full by the annulment of the contested decision, from which it stems. Therefore, it must be held that any non-material damage that the contested decision might have caused to the applicant is adequately compensated by the annulment of that decision. 132 The claim for damages in respect of the non-material harm alleged must therefore be dismissed, without there being any need to examine the causal link between the unlawfulness and that harm. 133 Accordingly, the claim for damages must be dismissed in its entirety. 134 In the light of all the foregoing considerations, the contested decision must be annulled and the action dismissed as to the remainder. Costs 135 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. Since the applicant’s claim for annulment is well founded, whereas its claim for damages must be dismissed, it must be held that the applicant and eu-LISA are each to bear their own costs. 136 Furthermore, in accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Council must therefore be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Annuls the decision of 8 May 2018 by which the Executive Director of the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) terminated the employment of AQ as a temporary agent; 2. Dismisses the action as to the remainder; 3. Orders AQ and eu-LISA to bear their own costs; 4. Orders the Council of the European Union to bear its own costs. da Silva Passos Truchot Sampol Pucurull Delivered in open court in Luxembourg on 14 July 2021. [Signatures] Table of contents Background to the dispute Procedure and forms of order sought Law The claim for annulment The taking into account of the period subsequent to the contested decision The calculation method applied by the AECE The alleged manifest errors of assessment The AECE’s discretion The claim for damages The unlawfulness of the alleged conduct The material damage The non-material damage Costs * Language of the case: English. 1 Confidential data redacted.