62012FJ0122_EN
Parties
Grounds
Operative part
Parties
In Case F‑122/12,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Bruno Arguelles Arias, former member of the contract staff of the Council of the European Union, residing at Awans (Belgium), represented by J. Lecuyer, lawyer,
applicant,
v
Council of the European Union,
represented by M. Bauer and A. Bisch, acting as Agents,
defendant,
CIVIL SERVICE TRIBUNAL (Second Chamber)
composed of M.I. Rofes i Pujol (Rapporteur), President, R. Barents and K. Bradley, Judges,
Registrar: W. Hakenberg,
having regard to the written procedure and further to the hearing on 5 September 2013,
gives the following
Judgment
Grounds
1. By application lodged at the Tribunal Registry on 22 October 2012, Mr Arguelles Arias seeks in essence annulment of the decision of the authority empowered to conclude contracts of employment (‘the AECE’) of the Council of the European Union of 12 January 2012, communicated on 16 January 2012, terminating his contract as a member of the contract staff with effect from 31 May 2012, and compensation for the material and non-material damage allegedly suffered, estimated provisionally to be EUR 160 181.85 and EUR 25 000, respectively.
Legal context
2. Article 3a of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) provides:
‘1. For the purposes of these Conditions of Employment, “contract staff” means staff not assigned to a post included in the list of posts appended to the section of the budget relating to the institution concerned and engaged for the performance of full-time or part-time duties:
(a) in an institution to carry out manual or administrative support service tasks,
…’
3. Under Article 119 of the CEOS, Articles 47 to 50a thereof, concerning the detailed rules for termination of the employment of temporary staff, apply by analogy to contract staff.
4. Article 47 of the CEOS provides as follows:
‘Apart from cessation on death, the employment of temporary staff shall cease:
…
(c) where the contract is for an indefinite period:
(i) at the end of the period of notice stipulated in the contract; the length of the period of notice shall not be less than one month for each completed year of service, subject to a minimum of three months and a maximum of 10 months. ...
…’
5. By decision of 16 June 2011, the Council, on the basis of Article 110 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and of Article 79(2) and Article 85(2) of the CEOS, adopted general implementing provisions on the procedures governing the engagement and the use of contract staff at the General Secretariat of the Council (‘the GIP’), which apply to contract staff engaged on the basis of Article 3a of the CEOS.
6. Article 5 of the GIP, concerning security clearance, provides:
‘1. Where the [General Secretariat of the Council] considers that the nature of the duties assigned to a member of the contract staff requires special security precautions, security clearance shall be required in accordance with the Decision adopting the Council’s security regulations ...
2. The AECE may terminate the contract:
(a) if the member of the contract staff refuses to undergo security screening;
(b) if, following screening, security clearance is not granted to the member of the contract staff;
(c) if security clearance is withdrawn from the member of the contract staff.
3. In the cases provided for in points (b) and (c) of paragraph 2, the AECE shall first verify whether it is possible to transfer the member of the contract staff to another post for which security clearance is not required, while taking account of the reason for the refusal to grant such clearance.
…’
7. Article 8 of the GIP, concerning function groups, provides:
‘[C]ontract staff [referred to in Article 3a of the CEOS] shall be engaged by the [General Secretariat of the Council] to perform duties in a post not included in the list of posts to perform manual or administrative support service tasks in function group I.’
8. On 31 March 2011, the Council adopted Decision 2011/292/EU on the security rules for protecting EU classified information (OJ 2011 L 141, p. 17), which established a comprehensive security system for protecting classified information covering the Council, its General Secretariat (‘the General Secretariat’) and the Member States.
9. Article 2(1) of Decision 2011/292 reads as follows:
‘“EU classified information” … means any information or material designated by an EU security classification, the unauthorised disclosure of which could cause varying degrees of prejudice to the interests of the European Union or of one or more of the Member States.’
10. Under Article 2(2) of Decision 2011/292, EU classified information is to be classified at one of the following levels: ‘EU [Top Secret]’, ‘EU [Secret]’, ‘EU [Confidential]’, ‘EU [Restricted]’.
11. Article 7 of Decision 2011/292, concerning personnel security, provides:
‘1. Personnel security is the application of measures to ensure that access to [EU classified information] is granted only to individuals who have:
— …
— been security cleared to the relevant level, where appropriate, and
— …
2. Personnel security clearance procedures shall be designed to determine whether an individual, taking into account his loyalty, trustworthiness and reliability, may be authorised to access [EU classified information].
…’
12. Article 15 of Decision 2011/292, concerning the organisation of security in the Council, provides as follows:
‘…
2. The Secretary-General shall be the [General Secretariat’s] Security Authority. In that capacity, the Secretary-General shall:
…
(c) grant [EU personnel security clearance] to officials and other servants [of the General Secretariat] in accordance with Article 7(3) before they may be granted access to information classified [EU Confidential] or above;
…’
13. Annex I to Decision 2011/292 sets out provisions for implementing Article 7 of that decision.
14. Section II of Annex I to Decision 2011/292, entitled ‘Authorising access to [EU classified information]’, provides:
‘3. An individual shall only be authorised to access information classified EU [Confidential] or above after:
…
(b) he has been granted [personnel security clearance] to the relevant level or is otherwise duly authorised by virtue of his functions in accordance with national laws and regulations; …
…
4. Each Member State and the [General Secretariat] shall identify the positions in their structures which require access to information classified EU [Confidential] or above and therefore require [personnel security clearance] to the relevant level.’
15. Section III of Annex I to Decision 2011/292, entitled ‘P[ersonnel security clearance requirements]’, provides as follows:
‘5. After having received a duly authorised request, [national security authorities] or other competent national authorities shall be responsible for ensuring that security investigations are carried out on their nationals who require access to information classified EU [Confidential] or above. Standards of investigation shall be in accordance with national laws and regulations.
…
[Personnel security clearance] procedures in the [General Secretariat]
17. For officials and other servants in the [General Secretariat], the [Security Authority of the General Secretariat] shall forward the completed personnel security questionnaire to the [national security authority] of the Member State of which the individual is a national requesting that a security investigation be undertaken for the level of [EU classified information] to which the individual will require access.
18. Where information relevant for a security investigation becomes known to the [General Secretariat of the Council] concerning an individual who has applied for [EU personnel security clearance], the [Secretary-General of the Council], acting in accordance with the relevant rules and regulations, shall notify the relevant [national security authority] thereof.
19. Following completion of the security investigation, the relevant [national security authority] shall notify the [Security Authority of the General Secretariat] of the outcome of such an investigation, using the standard format for the correspondence prescribed by the Security Committee.
(a) Where the security investigation results in an assurance that nothing adverse is known which would call into question the loyalty, trustworthiness and reliability of the individual, the [Appointing Authority of the General Secretariat of the Council] may grant [EU personnel security clearance] to the individual concerned and authorise access to [EU classified information] up to the relevant level until a specified date.
(b) Where the security investigation does not result in such an assurance, the [Appointing Authority of the General Secretariat] shall notify the individual concerned, who may ask to be heard by the Appointing Authority. The Appointing Authority may ask the competent [national security authority] for any further clarification it can provide according to its national laws and regulations. If the outcome is confirmed, [EU personnel security clearance] shall not be granted.
20. The security investigation together with the results obtained shall be subject to the relevant laws and regulations in force in the Member State concerned, including those concerning appeals. Decisions by the [Appointing Authority] of the [General Secretariat] shall be subject to appeals in accordance with the Staff Regulations … and the [CEOS] …
…’
16. The Belgian Law on security classification, security clearance, security certificates and security advisory notices of 11 December 1998 ( Moniteur belge
of 7 May 1999, p. 15752), as amended by the Law of 3 May 2005 ( Moniteur Belge
of 27 May 2005, p. 24993; ‘the Law on security clearance’), provides:
‘…
Article 12.	The present law shall apply where the possession of security clearance is required in the interests of: the protection of Belgian territorial integrity or military defence plans; the completion of missions by the armed forces; the internal security of the State, including in the field of nuclear energy, the continuity of the democratic and constitutional order; the external security of the State and international relations; the scientific or economic potential of the country or any other fundamental interest of the State; the safety of Belgian nationals abroad; or the functioning of the decision-making bodies of the State; or under treaties that are binding on Belgium, on the authority having the power to regulate access to a post, function or grade; to information, documents or data; to classified hardware, materials or substances; to premises, buildings or sites; or having power to arrange for the award and performance of private or public contracts.
…
Article 22.	On completion of security screening, the national security authority shall, by reasoned decision, within the time-limit set by the King, decide whether to grant security clearance as requested, on the basis of the screening report submitted to it by the intelligence and security service which carried it out.
If it considers it appropriate to examine the screening report, the security authority shall request that service to send it a complete copy of the file on the screening. It may also request that service to send any further information it considers appropriate for examination of the screening report.
The decision shall be notified through the security officer to the natural or legal person for whom the clearance is requested, within the time-limit set by the King.
…’
17. The Law of 11 December 1998 setting up a review body for security clearance, security certificates and security advisory notices ( Moniteur belge of 7 May 1999, p. 15758), as amended by the Law of 3 May 2005 ( Moniteur belge
of 27 May 2005, p. 24989; ‘the Law establishing a review body’), provides:
‘…
Article 4.
[1] Where, in accordance with Article 22 of the Law [on security clearance], the security clearance requested is denied, … the person for whom clearance has been requested may, within 30 days of … notification of the decision …, lodge an appeal with the review body.
…
Article 6.	…
The applicant shall be heard by the review body, at the request of either the review body or the applicant. The applicant may be assisted by a lawyer.
…
Article 9.	…
Decisions of the review body must state the reasons on which they are based. They shall be notified, as appropriate, by registered letter, to the applicant, the security authority and the intelligence and security service which either carried out the security screening or prepared the file on the security check. They shall be enforceable immediately upon their notification.
…
Decisions of the review body are not subject to any further appeal.
…
Article 11.	Where the review follows a decision refusing to grant … a security certificate, the review body may, if it considers, after hearing the applicant or his lawyer, that the grounds relied on in support of the contested decision are unfounded and inadequate, require the authority to grant the security certificate.
…
Article 12.	…
[6] Decisions of the review body are enforceable by operation of law immediately upon their adoption and are not subject to anyfurther appeal.
[7] The procedure before the review body shall not have suspensory effect.
…’
Background to the dispute
18. The applicant was employed by the Council as a member of the contract staff, within the meaning of Article 3a of the CEOS, in function group I, grade 1, step 1, for the period between 1 October 2007 and 30 September 2010. He was assigned to the Directorate-General (DG) for Personnel and Administration of the General Secretariat, in the Messengers Service of the Conferences Unit of the Directorate for Conferences, organisation and infrastructure, to perform manual and/or administrative support service tasks within the meaning of Article 80(2) of the CEOS.
19. Article 7 of the applicant’s contract of employment provided that ‘[a] staff member who is called upon to work in a sector of activity requiring a high degree of confidentiality will be required to undergo security screening in accordance with Council Decision [2001/264/EC] of 19 March 2001 [adopting the Council’s security regulations (OJ 2001 L 101, p. 1)]’.
20. It is clear inter alia from the General Secretariat’s Staff Note No 58/09 of 11 March 2009, which annulled and replaced Staff Notes Nos 14/09 and 91/05, that all Council clerical officers assigned to the Conferences, Organisation and Infrastructure Directorate of DG Personnel and Administration may need to have access to EU classified information and that the minimum level of security clearance which they must have is either EU Secret for some of the meeting-room clerks or EU Confidential for all of the others.
21. The Council and the applicant entered into an agreement to extend the applicant’s contract of employment for a further period of three years, from 1 October 2010 to 30 September 2013. The procedure requesting security clearance was initiated. The applicant returned the relevant form on 8 December 2010 and the request was validated the following day.
22. With effect from 16 May 2011, the applicant was assigned to the Meeting Room Attendants Service of the Operations/Technical Unit of the Protocol and Conferences Directorate of DG Personnel and Administration. After the Council adopted the GIP on 16 June 2011, the applicant’s contract of employment as a member of the contract staff was renewed, on 1 October 2011, for an indefinite period, by Supplementary Agreement No 1 to the agreement extending that contract.
23. In a letter dated 17 November 2011, the President of the Belgian national security authority (‘the NSA’) informed the Council Security Officer that, following examination of the applicant’s file, the request for security clearance to Secret level had been refused.
24. On 5 December 2011, the Council Security Officer invited the applicant to attend a meeting, and officially informed him of the decision refusing him security clearance. It is clear from the documents attached by the Council to its response to the measures of organisation of procedure that on that same day the applicant signed a copy of the letter dated 17 November 2011 from the President of the NSA to show that he had noted its content.
25. On 5 December 2011 also, the applicant’s Head of Unit, having been informed of the NSA’s decision, had a meeting with him. At the request of the Tribunal, that Head of Unit stated at the hearing that the main purpose of the meeting had been to inform the applicant that he was going to be transferred from the Meeting Room Attendants Service to the Justus Lipsius Building Floor Messengers Service, a service for which a lower level of security clearance was required. The applicant’s Head of Unit added that that measure had been adopted with immediate effect in accordance with the duty of diligence incumbent on the General Secretariat.
26. On 8 December 2011, the applicant lodged an appeal with the Belgian body for the review of security clearance, security certificates and security advisory notices (‘the review body’).
27. In pursuance of Article 5(3) of the GIP, which requires the AECE to verify, before terminating a contract, whether it is possible to transfer the individual concerned to another post for which security clearance is not required, while taking account of the reason for the refusal to grant such clearance, the Directorate Advisers Unit of DG Personnel and Administration drafted a note on 11 January 2012 (‘the note of 11 January 2012’). The conclusion was drawn in that note that it was not possible to transfer the individual concerned to any other post in view of his profile, the selection procedure under which he had been employed, namely a procedure for the selection of contract staff to the post of messenger, the acts alleged by the NSA, and the Council’s duty to take special precautions with regard to security.
28. The Head of Individual Entitlements Unit invited the applicant to a meeting on 16 January 2012 and handed him a note dated 12 January 2012, informing him of the AECE’s decision to terminate his contract with effect from 31 May 2012 and giving him four months’ notice from 1 February 2012 (‘the contested decision’). It is clear from the reasoning of the contested decision that it was taken on the basis of Article 5(2)(b) of the GIP, which provides that the AECE may terminate the contract of a staff member where, following screening, he is not granted security clearance. In that decision the applicant was asked to take leave before the start of the notice period and was relieved of his duties with effect from 16 January 2012.
29. The applicant’s request of 17 January 2012, first, for his situation to be maintained until the outcome of the review procedure which he had initiated was known and, secondly, for his dismissal not to be put into effect until the review body had issued its decision, was rejected by the Council in a letter of 26 January 2012. That rejection was based, inter alia, on the following matters: (i) the fact that the applicant could not remain in his post without security clearance; (ii) the fact that the procedure before the review body did not have suspensory effect; (iii) the acts providing the grounds for the NSA’s decision and (iv) the obligation incumbent on the Secretary-General of the Council to satisfy himself as to the loyalty, trustworthiness and reliability of all persons authorised to have access to EU classified information.
30. On 8 March 2012, the review body overturned the NSA’s decision and directed the NSA to grant the applicant security clearance to Secret level. The review body’s decision read as follows:
‘… In his appeal and at the hearing …, [the applicant] disputes the evidence on which the decision was based, with the exception of the convictions by the local criminal court for speeding. He declares that he has not been convicted of the acts stated in the file and that he has a clean criminal record apart from the speeding offences. He has lodged in that connection copies of the police reports in the various court cases referred to in the decision. In the case concerning the more serious acts … the Federal Police itself concluded in the summary report that the allegations made against [the applicant] have not been proven and that the applicant played only a marginal role. As regards the other police reports cited, he declares that he has never been prosecuted for a criminal offence, pointing to his clean criminal record.
…
[The applicant] does not deny that he has some debts, but only for small amounts. …
The review body finds only that the individual concerned is known to the police services in connection with previous acts, that he has never been prosecuted for those acts, and that there are no significant debts likely to constitute a risk of the individual concerned being compromised.
…’
31. On 30 March 2012, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations.
32. A meeting was arranged at the Council on 24 May 2012 to examine the applicant’s complaint and the action to be taken on it, a meeting at which the applicant and his lawyer were present. It is clear from the Council’s letter dated 11 June 2012 and addressed to the applicant’s lawyer that it had been agreed at that meeting that the latter would send the Council a copy of the documents submitted to the review body, which would show that the applicant had played no part, not even indirectly, in the acts referred to in the NSA’s decision refusing to grant him security clearance and in the review body’s decision annulling that refusal.
33. On 12 June 2012, the applicant’s lawyer replied to the Council’s letter of 11 June 2012, inter alia, as follows:
‘Contrary to what I thought, I am no longer in a position to send you a copy of the documents lodged with the review body concerning security clearance. Those documents are confidential and cannot be submitted for examination by the Council. They concern my client’s private life and the Council … is not entitled to examine them.’
34. The Council dismissed the applicant’s complaint in a decision of 20 July 2012. The dismissal was based primarily on the fact, inter alia, that the post occupied by the applicant necessitates access to EU classified information, and for that reason he cannot perform his duties without having security clearance; the duty of diligence incumbent on the Secretary-General of the Council, who must satisfy himself as to the loyalty, trustworthiness and reliability of all persons authorised to have access to EU classified information; and the acts providing the grounds for the NSA’s decision of 17 November 2011. As a subsidiary point, the Council’s decision notes that the wording of the review body’s decision is not such as to restore the specific trust which was lost between the applicant and his institution, since even a marginal role in such serious matters and the existence of debts is sufficient to call into question the loyalty, trustworthiness and lack of vulnerability required on the part of the applicant in the performance of his duties, and the standards of good character required in order for him to perform them within the General Secretariat.
Forms of order sought
35. The applicant claims that the Tribunal should:
– annul the contested decision and, in so far as necessary, annul the decision dismissing his complaint against that decision;
– order the Council to compensate for the material damage caused to him, provisionally assessed at EUR 160 181.85;
– order the Council to compensate for the non-material damage caused to him, provisionally assessed at EUR 25 000;
– order the Council to pay the costs.
36. The Council contends that the Tribunal should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
First head of claim: annulment of the contested decision and, in so far as necessary, annulment of the decision dismissing the complaint
37. Under settled case-law, it follows from Articles 90 and 91 of the Staff Regulations that an action brought by a person to whom the Staff Regulations apply against a decision of the appointing authority or against the failure of that authority to take a measure prescribed by the Staff Regulations is admissible only if the person concerned has previously submitted a complaint to the appointing authority and if the complaint has been dismissed, at least in part, by express or implied decision. Under Article 117 of the CEOS, that case-law is also applicable, by analogy, to an action brought by a staff member against a decision of the AECE or against the failure of that authority to take a measure prescribed by the CEOS.
38. The administrative complaint and its rejection, whether express or implied, thus constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made. It has been held on several occasions that an express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (judgment of 21 September 2011 in Case T‑325/09 P Adjemian and Others
v Commission, paragraph 32).
39. Since, under the system laid down in the Staff Regulations or the CEOS, the person concerned must submit a complaint against the decision which he is contesting and then appeal against the decision rejecting his complaint, the Court of Justice has held that the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided, however, that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations. However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see, to that effect, judgment of 17 January 1989 in Case 293/87 Vainker
v Parliament, paragraphs 7 and 8). That may, in particular, be the case where it finds that the decision rejecting the complaint, in some cases because it is implied, is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second ( Adjemian and Others
v Commission, paragraph 33).
40. In the present case, the applicant’s contract of indefinite duration was terminated in January 2012, with effect from 31 May 2012, in the light of the findings of the investigation conducted by the NSA, the results of which were made known in November 2011. The decision of the review body which overturned the NSA’s decision is dated 8 March 2012 and the applicant’s complaint, in which he challenges the contested decision, is dated 30 March 2012. It is apparent from paragraph 32 above that in May 2012 the Council arranged a meeting at which the applicant was present and that on 11 June 2012 the Council requested the applicant’s lawyer to send it additional documents, but he refused to do so.
41. In those circumstances, the decision of 20 July 2012 rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law and of fact, in this case the review body’s decision of 8 March 2012 and the applicant’s refusal to provide the documents requested by the Council. It follows that the decision rejecting the complaint constitutes a measure subject to review by the Tribunal, which will take it into consideration when assessing the legality of the contested decision.
42. The applicant puts forward five pleas in support of his claim for annulment of the contested decision. The first plea alleges infringement of Decision 2011/292 and the GIP, and also of the Law on security clearance, the Law establishing a review body and the royal decrees implementing those laws. The second plea is based on the failure to state grounds for the act adversely affecting the applicant. The third plea alleges infringement of the rights of the defence, failure to observe the audi alteram partem
rule and infringement of the right to a prior hearing. The fourth plea concerns manifest error of assessment. The fifth plea is based on the disproportionate nature of the dismissal and of the AECE’s failure to comply with the obligation to examine the possibility of re-assigning the applicant or retaining him in his original post. The Tribunal will examine the pleas in that order.
First plea: infringement of Article 7 of Decision 2011/292 and of Annex I thereto, inter alia point 20 of that annex, the GIP, and also of the Law on security clearance, the Law establishing a review body and the royal decrees implementing those laws
43. The applicant divides this plea into two parts: the first part concerns the absence of a legal basis for the dismissal, which is unlawful. The second part concerns the fact that the Council acted ultra vires
in seeking to substitute its own assessment for that of the NSA and the review body.
– Arguments of the parties regarding the first part of the first plea
44. The applicant claims that his dismissal is contrary to Article 7 of Decision 2011/292 and Annex I thereto, inter alia point 20 of that annex, the Law on security clearance, the Law establishing a review body and the royal decrees implementing those laws, and also the GIP.
45. He contends that as the legislature made provision for an appeal in the context of the procedure for granting security clearance it is irrelevant whether the lodging of an appeal has suspensory effect. In the present case, since the NSA’s decision could be overturned on appeal, the Council was not entitled to implement the contested decision without waiting for the outcome of the procedure to be known. In the present case, as the applicant did obtain his security clearance, the termination of his contract is devoid of legal basis and hence unlawful.
46. The applicant adds that Article 5(2)(b) of the GIP allows the institution to terminate the contract of a staff member who has been refused security clearance but does not contain an obligation to that effect, contrary to what the Council seeks to imply.
47. The Council contends that the first part of the first plea should be rejected.
– Findings of the Tribunal
48. The Tribunal notes, by way of a preliminary observation, that under Article 35(1)(e) of the Rules of Procedure an application must state the pleas in law and the arguments of fact and law relied on.
49. In order to guarantee legal certainty and the sound administration of justice, it is necessary, in order for a plea or claim to be admissible, that the basic legal and factual particulars relied on by an applicant be indicated coherently and intelligibly in the text of the application itself so as to enable the defendant to prepare his defence and the Tribunal to give judgment in the action without having to seek further information, if appropriate (judgment of 10 November 2011 in Case F‑18/09 Merhzaoui
v Council, paragraphs 42 and 43).
50. Although in the first part of the first plea the applicant complains that the Council, in adopting the contested decision, infringed Article 7 of Decision 2011/292, the Law on security clearance, the Law establishing a review body and the royal decrees implementing those laws, it should be noted that those claims are merely stated and are not supported by any arguments, in breach of the rule laid down in Article 35(1)(e) of the Rules of Procedure. They must therefore be dismissed as inadmissible.
51. Since the applicant does not explain in what way the provisions of point 20 of Annex I to Decision 2011/292 were infringed in the present case, the claim concerning the alleged infringement of those provisions must also be dismissed as inadmissible. Moreover, it should be noted that the sole purpose of those provisions is to identify the legislation applicable, on the one hand, to security investigations conducted by Member States, including actions brought against the outcomes, namely the legislation in force in the Member State concerned and, on the other hand, to actions brought against decisions of the appointing authority, or of the AECE, of the General Secretariat, in this case the Staff Regulations.
52. In the context of the first part of the first plea it remains therefore to examine whether, as the applicant contends, the contested decision was adopted in breach of Article 5(2)(b) of the GIP, which provides that the AECE may terminate the contract of a staff member if, following screening, security clearance is not granted to him but does not impose an obligation on the AECE to do so, and also whether it is devoid of legal basis, since the review body directed the NSA to grant the applicant security clearance to Secret level.
53. First of all, Article 7(1) of Decision 2011/292 states that personnel security is the application of measures to ensure that access to EU classified information is granted only to individuals who have a need-to-know, have undergone EU personnel security clearance to the relevant level, where appropriate, and have been briefed on their responsibilities.
54. Secondly, Article 15(2)(c) of Decision 2011/292 provides that the Secretary-General of the Council is the General Secretariat’s security authority and, in that capacity, grants EU personnel security clearance to officials and other servants in accordance with Article 7(3) of that decision before they may be granted access to information classified EU Confidential or above.
55. Lastly, EU personnel security clearance for access to EU classified information is defined in Appendix A to Decision 2011/292 as ‘an authorisation by the [appointing authority] of the [General Secretariat] which is taken in accordance with this Decision following completion of a security investigation conducted by the competent authorities of a Member State and which certifies that an individual may, provided his “need-to-know” has been determined, be granted access to [EU classified information] up to a specified level … until a specified date; the individual thus described is said to be “security cleared”’.
56. It is clear therefore from the above provisions that it is the Secretary-General of the Council who alone is empowered to decide whether to grant or refuse EU personnel security clearance to members of staff of the General Secretariat.
57. Under Annex I, Section III, point 5 of Decision 2011/292, it is the national security authorities or other competent national authorities which are responsible for ensuring that security investigations are carried out on their nationals, since those authorities are better placed than the Secretary-General of the Council to access information in the various Member States.
58. The fact remains however that under Annex I, Section III, point 19(a), of Decision 2011/292, where the security investigation results in an assurance that nothing adverse is known which would call into question the loyalty, trustworthiness and reliability of the individual the appointing authority, or the AECE in the case of other staff, of the General Secretariat may grant EU personnel security clearance to the individual concerned and authorise his access to EU classified information to the relevant level until a specified date.
59. It is clear from the wording of the provision referred to in the preceding paragraph that the appointing authority, or the AECE in the case of other staff, of the General Secretariat is not bound by the findings of the security investigation carried out by the national authorities, or even by the findings of a review body, and that even where the result is favourable to the individual concerned there is no obligation on the appointing authority or the AECE to grant him EU personnel security clearance and they retain the power to refuse him such clearance.
60. Given the purpose of the security clearance procedure, which, as laid down in Article 7(2) of Decision 2011/292, is designed to determine whether an individual, taking into account his loyalty, trustworthiness and reliability, may be authorised to access EU classified information, the AECE was entitled, in the light of the adverse information concerning the applicant which emerged following the investigation carried out by the NSA and was communicated to the Council in a letter of 17 November 2011, to have doubts, in particular as to whether the applicant presented a risk of vulnerability, and to decide that it was not appropriate to grant him the security clearance he needed.
61. In the present case, it is not disputed that the applicant occupied a post for which security clearance was required. Having verified, under Article 5(3) of the GIP, whether it was possible to transfer the applicant to another post for which he would not have needed security clearance, and having concluded from the note of 11 January 2012, the content of which is set out in paragraph 27 above, that such a transfer was impossible, the AECE was entitled, without infringing Article 5(2)(b) of the GIP, to take a decision terminating the applicant’s contract at the end of the four months’ notice period, in accordance with Article 47(c)(i) of the CEOS.
62. That finding is not altered by the applicant’s argument that the review body directed the NSA to grant the applicant security clearance to Secret level, a fact which might deprive the decision to terminate his contract staff contract of a legal basis.
63. It is clear from the wording of Annex I, Section III, point 20, of Decision 2011/292 that the security investigation and its results comply with the laws and regulations in force in the Member State concerned, including those concerning appeals. Under Belgian law, the first paragraph of Article 11 of the Law establishing a review body provides that that body may, if it considers after hearing the applicant or his lawyer, that the grounds relied on in support of the decision refusing to grant security clearance are unfounded and inadequate, require the national security authority to grant a security certificate.
64. In the present case, the NSA’s decision to grant the applicant security clearance to Secret level, following the decision of the review body, was taken under the Law on security clearance and it is valid for access to information falling within the scope of that law and also for access to EU classified information in the case of personnel of the Member States as referred to in Article 14(3) of Decision 2011/292.
65. However, as is clear from paragraphs 56 and 59 above, in the case of access to EU classified information by staff of the General Secretariat, it is the appointing authority, or the AECE in the case of other staff, which, on completion of a security investigation conducted by the national authorities, is alone empowered to decide whether to grant or refuse EU personnel security clearance, without being bound by the findings of that investigation, in the present case by the findings of the review body.
66. Accordingly, the first part of the first plea must be rejected.
– Applicant’s arguments concerning the second part of the first plea
67. The applicant claims that the Council is seeking to substitute its own assessment for that of the NSA and the review body in using the concept of ‘relationship of trust’. In doing so it acted ultra vires . The review body was aware of the NSA’s errors, in so far as the applicant did not owe any money and, by producing his clean criminal record, he demonstrated that the NSA’s findings were incorrect. Once security clearance had been granted to the applicant, it was for the Council to respect that decision.
– Findings of the Tribunal
68. In that regard, it should be noted, first, that the security clearance procedure is designed to determine whether an individual, in view of his loyalty, trustworthiness and reliability, may be authorised to have access to EU classified information; secondly, that the list of security investigation criteria, which appears in Annex I, Section III, point 8, of Decision 2011/292, is not exhaustive. Moreover, in addition to the criteria listed in point 8(a) to (k), points 9 and 10 respectively state that an individual’s financial and medical background and a spouse’s, cohabitant’s or close family member’s character, conduct and circumstances may also be considered relevant.
69. The Tribunal notes that at the time the contested decision was adopted the Council was in possession of only the NSA’s findings and, in view of the adverse information concerning the applicant disclosed by the security investigation, it had not been established, in particular, that the applicant did not present a risk of vulnerability. Hence, as is clear from paragraph 61 above, the AECE was entitled, in January 2012, to refuse the applicant EU personnel security clearance and decide to terminate his contract.
70. In the light of the review body’s decision of 8 March 2012, the Council re-examined, in the context of the applicant’s complaint, the possibility of granting him EU personnel security clearance and, to that end, it arranged, inter alia, the meeting of 24 May 2012, at which the applicant, assisted by his lawyer, was present, and requested the latter to send a copy of the documents lodged with the review body, documents which the lawyer initially agreed to provide but subsequently refused to send because they were confidential and related to his client’s private life.
71. Although the review body overturned the NSA’s decision in favour of the applicant, the final finding reached by the review body, namely that ‘the individual concerned is known to the police services in connection with some previous acts, that he has never been prosecuted for those acts, and that there are no significant debts likely to constitute a risk of the individual concerned being compromised’ must be offset against other less positive findings appearing in the same decision, namely, ‘[the applicant] does not deny that he has some debts’ or ‘[i]n the case concerning the more serious acts … the Federal Police itself concluded in the summary report that the allegations made against [the applicant] have not been proven and that the applicant played only a marginal role’.
72. At the hearing, it emerged that the finding that the applicant played ‘a marginal role’ with regard to the more serious acts referred to in the NSA’s decision was interpreted by the Council as meaning that the applicant was associated with those more serious acts, albeit marginally, and indeed that he had moved in some dubious circles, circumstances which would in themselves justify, in view of the duty of diligence incumbent on the Council, a refusal to grant him security clearance. The applicant, however, declared that that finding indicates that he was merely examined as a witness by the Federal Police in a case against third parties and that the records of those examinations do not show that he was involved in any way in the acts to which the prosecution relates.
73. In view of that information provided by the applicant, which does not appear in the file before it, the Tribunal, first, asked the Council if it would be prepared to review the contested decision in the light of the records of the abovementioned witness examinations submitted to the review body, which the applicant would need to send to the Council since the latter would not otherwise have access to them. Secondly, the Tribunal asked the applicant if he was now ready to provide the Council with those records, which he had not been prepared to do in May 2012. The Council replied in the affirmative, whilst the applicant again refused and stated that he was not interested in the possibility of being reinstated in his former post at the Council, the purpose of his action now being solely to obtain compensation for the material and non-material damage he had suffered.
74. In those circumstances, it must be held that, in the light of the documents at its disposal and of the approach taken by the applicant, the only entity in a position to be able to provide the Council with the documents lodged with the review body, namely the AECE of the General Secretariat, acted within its powers and did not take the place of the review body by refusing to reverse the contested decision in the decision rejecting the complaint.
75. It follows that the second part of the first plea and, as a result, the plea in its entirety, must be rejected.
Second plea: failure to state grounds for the decision adversely affecting the applicant
– Arguments of the parties
76. The applicant claims that the contested decision does not state the grounds on which it is based and makes no reference to any document which would explain the reason for his dismissal. The Council thereby failed to comply with the obligation to give reasons for its decisions, imposed on it by Article 41 of the Charter of Fundamental Rights of the European Union.
77. The Council contends that that plea should be rejected.
– Findings of the Tribunal
78. With regard to the obligation to state the grounds for a decision adversely affecting an official, the Tribunal notes that the guarantees afforded by EU law in administrative proceedings include, in particular, the principle of sound administration, enshrined in Article 41 of the Charter, which entails inter alia ‘the obligation of the administration to give reasons for its decisions’ (judgment of 11 July 2013 in Case F‑46/11 Tzirani
v Commission, paragraph 136 and the case-law cited).
79. Moreover, 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 ( Tzirani
v Commission, paragraph 137 and the case-law cited).
80. It is moreover settled case-law that the statement of reasons required under Article 296 TFEU must set out clearly and unequivocally the reasoning of the body which adopted the act in question ( Tzirani
v Commission, paragraph 138 and the case-law cited).
81. The purpose of the obligation to state the reasons for a decision adversely affecting an official, 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 and a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the Courts of the European Union (see, to that effect, judgment of 7 December 2011 in Case T‑562/10 HTTS
v Council, paragraph 32).
82. It should be noted that there is no overriding reason to exclude members of the contract staff from protection against unjustified dismissal, particularly when their contract is for an indefinite period or, if it is a fixed-term contract, when they are dismissed before the expiry of the term. In order to ensure a sufficient degree of protection to that effect, the persons concerned must be able to determine whether their legitimate interests have been respected or damaged and to assess whether it would be appropriate to initiate judicial proceedings, and the courts must be able to exercise their powers of review, which amounts to recognising an obligation on the part of the competent authority to state the reasons for its decisions (see, to that effect, judgment of 24 April 2008 in Case F‑74/06 Longinidis
v Cedefop, paragraph 49).
83. It also follows from the case-law that the extent of the obligation to state reasons depends on the specific circumstances, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressee of the measure may have in obtaining explanations. In order to assess whether the statement of reasons is adequate, that statement must be placed in the context in which the contested measure was adopted ( Longinidis
v Cedefop, paragraph 50 and the case-law cited).
84. In respect of a decision to dismiss a member of staff employed under a contract for an indefinite period, it is particularly important that the reasons on which the decision is based should, as a general rule, be set out in writing, preferably in the text of the decision itself. It is that measure alone, the legality of which must be assessed as at the date on which it was adopted, which gives tangible form to the institution’s decision. However, the obligation to state the reasons for the dismissal may also be regarded as fulfilled if the person concerned was duly informed, in the course of meetings with his superiors, of those reasons and if the decision of the AECE was adopted shortly after those meetings. The AECE may also, if necessary, supplement the statement of reasons in its reply to a complaint lodged by the person concerned ( Longinidis
v Cedefop, paragraph 51).
85. In the present case, it should be noted, first, that the contested decision is based on Article 5(2)(b) of the GIP, which provides that the AECE may terminate the contract of a staff member if, following screening, security clearance is not granted to him; secondly, that the applicant was aware of the adverse outcome of the security investigation concerning him carried out by the NSA, because on 8 December 2011 he challenged the findings of that investigation before the review body; and, thirdly, on 5 December 2011 the applicant had meetings first with the Council Security Officer and then with his Head of Unit, who informed him that he was going to be assigned to a post for which the level of security clearance required was lower and, in addition, on 16 January 2012 he had a meeting with the Head of Individual Entitlements Unit, at which the latter gave him the decision terminating his contract. The applicant could not therefore have been in any doubt as to the reasons which led the AECE of the General Secretariat to adopt the contested decision.
86. That finding is supported by the content of the letter which the applicant sent to the Council on 17 January 2012, in which he complains that that institution had terminated his contract without waiting for the outcome of the procedure before the review body to be known. The Council replied to that letter in its letter of 26 January 2012, in which it contested the applicant’s arguments.
87. Lastly, the reply to the complaint, in which the contested decision was reviewed not only in the light of the NSA’s findings but also taking into account the review body’s decision, enabled the applicant to assess the merits of that decision and whether it was appropriate to bring an action before the Tribunal.
88. It follows from the foregoing that the second plea is unfounded.
Third plea: infringement of the rights of the defence, failure to observe the audi alteram partem
rule and infringement of the right to a prior hearing
– Arguments of the parties
89. The applicant maintains that his right to be heard, within the meaning of Article 41(2) of the Charter, was infringed because his testimony was not heard before 12 January 2012, the date of the contested decision.
90. The Council contends that the plea should be rejected. It argues that the applicant was heard on a number of occasions by his superiors before he was notified of the decision terminating his contract. The Council cites the applicant’s meetings on 5 December 2011 with the Council Security Officer and with his Head of Unit and on 16 January 2012 with the Head of the Individual Entitlements Unit.
– Findings of the Tribunal
91. According to settled case-law, observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. That principle, which reflects the requirements of good administration, demands that the person concerned should have been afforded the opportunity to effectively make known his views on any matters which might be taken into account to his detriment in the measure to be taken (judgment of 8 March 2005 in Case T‑277/03 Vlachaki
v Commission, paragraph 64).
92. In the present case, the Council has not proved, for example by means of a letter from the applicant’s superiors inviting him to attend a meeting, that the applicant was given a hearing before the contested decision was adopted.
93. However, the applicant placed on the file the NSA’s letter of 17 November 2011 addressed to the Council’s Security Officer, which provides evidence that he was informed in good time of the NSA’s decision and that he was therefore in a position to effectively make known his views before the contested decision was adopted.
94. In that letter the addressee is requested to inform the individual concerned, first, of the NSA’s decision, secondly, of the option for the latter to bring an action to challenge it and, thirdly, to send the NSA a copy of the letter, countersigned and dated. It is common ground that that communication took place because the Council placed on the file, in response to measures of organisation of procedure ordered by the Tribunal, a copy of the abovementioned letter, signed by the applicant on 5 December 2011 with the handwritten words ‘pour prise de connaissance’ (‘content noted’) and that the applicant lodged his appeal with the review body on 8 December 2011.
95. Also, under point 19(b) of Annex I, Section III, to Decision 2011/292, the applicant could have asked to be heard by the AECE. The Council states in its pleadings that that information was given to the applicant by the Security Officer on 5 December 2011 when he notified him of the findings of the NSA’s investigation, and this was confirmed by that officer himself at the hearing in response to questions from the Tribunal. In its written response to measures of organisation of procedure decided upon by the Tribunal, the applicant stated that he had not had time to do that before his contract was terminated and, at the hearing, he stated that, in view of the findings of the NSA’s investigation, he had wanted to concentrate on the appeal before the review body, believing that if the NSA’s decision were overturned the Council would be obliged to reverse its decision to terminate his contract.
96. Next, it is necessary to ascertain whether, since the contested decision was re-examined by the AECE in the light of the review body’s decision, the applicant’s rights of defence were observed before the decision dismissing the complaint was adopted.
97. In that regard, as is clear from paragraph 32 above, a meeting was arranged at the Council at which the applicant was present, assisted by his lawyer, in order to examine the complaint and the action to be taken on it, and, in a letter of 11 June 2012, the applicant was given the opportunity to provide the Council with the records of the various cases referred to in the NSA’s decision and the Federal Police’s summary record which he had lodged before the review body, that would show, as he contended at the hearing, that he had not been examined as a witness and therefore had not been personally involved in the more serious acts mentioned in the findings of the NSA’s investigation. It is common ground that the applicant, having initially agreed to send those documents to the Council, subsequently refused to do so.
98. Such conduct on the part of the applicant at the time of the examination by the Council of his complaint of 30 March 2012, in which he sought annulment of the contested decision in the light of the review body’s overturning, on 8 March 2012, of the NSA’s decision, appears to be incompatible with observance of the fundamental duty of loyalty and cooperation in respect of the institution which employs him, a duty that is incumbent on any official under Article 11 of the Staff Regulations, applying, by analogy, to contract staff under Article 81 of the CEOS. Observance of that duty of loyalty and cooperation is required not only in the performance of specific tasks entrusted to a staff member but extends to the whole relationship between the official and the institution to which he belongs (see, to that effect, judgment of 26 November 1991 in Case T‑146/89 Williams
v Court of Auditors, paragraph 72).
99. Accordingly, the Tribunal finds that, even though the Council did not arrange a meeting between the AECE and the applicant entirely devoted to obtaining the latter’s observations with regard to the proposed termination of his contract and before the adoption of the contested decision, the circumstances which surrounded the adoption and communication of that decision and the procedure followed by the Council in order to respond to the complaint, during the examination of which the contested decision was reviewed by the AECE in the light of new elements of law and of fact, afforded the applicant the opportunity effectively to make known his views on any matters taken into account to his detriment.
100. Consequently, the third plea must be rejected.
Fourth plea: manifest error of assessment
– Arguments of the parties
101. In support of this plea, the applicant submits that the Council committed a manifest error of assessment in dismissing him without taking into account the possibility of the NSA’s decision being overturned. The Council should have retained the applicant in his position until the outcome of the review procedure was known. Furthermore, the Council committed a serious, manifest error of assessment in considering that dismissal was compulsory whereas, under Article 5(2)(b) of the GIP, that was only one option available to it.
102. The Council contends that the plea should be rejected.
– Findings of the Tribunal
103. It is clear from Article 47(2) of the CEOS, applicable by analogy to contract staff under Article 119 of the CEOS, that the termination of a contract of indefinite duration is, provided that notice is given as laid down in the contract and in conformity with that article, a matter within the discretion of the competent authority. The Tribunal cannot review the exercise of that discretion unless a manifest error or misuse of powers can be established (see, to that effect, judgment of 14 July 1997 in Case T‑123/95 B
v European Parliament, paragraph 70).
104. It is for the Tribunal, in the context of the pleas in law put forward by the applicant, to establish whether the Council committed a manifest error in assessing the facts which it used in order to adopt the contested decision. However, in the context of a broad discretionary power which the administration is recognised as having, as in the present case, establishing that the latter made a manifest error in assessing the facts, such as to justify the annulment of the decision adopted on the basis of that assessment, presupposes that the evidence, which the applicant must produce, is sufficient to make the factual assessments used by the administration implausible (judgment of 19 February 2013 in Case F‑17/11 BB
v Commission, paragraph 60).
105. As regards the definition of ‘manifest error of assessment’, where the AECE has broad discretionary power, the Tribunal has observed that an error is manifest where it is easily recognisable and can be readily detected (judgment of 24 March 2011 in Case F‑104/09 Canga Fano
v Council, paragraph 35). It is in the light of that definition that it is appropriate to examine whether the contested decision contains a manifest error.
106. In that regard, the Tribunal finds, first, that, in the light of the findings of the NSA’s investigation, the applicant could not continue to occupy his post. Secondly, it is clear from the note of 11 January 2012, the content of which is set out in paragraph 27 above, that it was impossible to transfer the applicant to another post. Thirdly, it is clear from the wording of Article 12(7) of the Law establishing a review body that the review procedure does not have suspensory effect. Fourthly, since the Secretary-General of the Council was not going to be bound by the findings of the NSA’s investigation, it was not going to be bound by the review body’s decision either, as the latter’s decisions are binding only within the scope of the Law on security clearance and cannot call into question the legality of the contested decision. In those circumstances, the Council did not commit a manifest error of assessment in deciding to implement the contested decision before the outcome of the review procedure was known.
107. It should be added that the applicant’s contention that the Council committed a serious, manifest error of assessment in considering that dismissal was compulsory, under Article 5(2)(b) of the GIP, is based on a misreading of the documents in the file. First, before deciding to terminate the applicant’s contract, the AECE examined whether the applicant could be transferred to another post for which EU personnel security clearance was not required. Secondly, in the light of the findings of the review body, the AECE invited the applicant to a meeting in May 2012, which he did attend with his lawyer, and gave him the opportunity to establish that the adverse information concerning him which was adduced during the NSA’s investigation had no basis.
108. It follows that the fourth plea must also be rejected.
Fifth plea: disproportionate nature of the dismissal and failure to observe the AECE’s obligation to examine the possibility of reassigning the applicant or retaining him in his original post
– Arguments of the parties
109. The applicant contends that his last staff report shows a remarkable profile, since he is one of the best meeting-room clerks, all thirteen assessment criteria having been marked ‘good’ or ‘very good’, as was his knowledge of languages.
110. In the light of the review body’s decision, which directed the NSA to grant the applicant security clearance, the Council should have reconsidered the contested decision because the applicant offers all the guarantees needed to retain his post or, at the very least, to be reinstated in his former position as floor messenger, since the latter post did not require clearance nor did it require a security procedure to be carried out.
111. The Council contends that this plea should be rejected.
– Findings of the Tribunal
112. It should be noted that, according to settled case-law, the duty of the administration to have regard for the welfare of its staff and the principle of good administration imply in particular that when the competent authority takes a decision concerning the situation of an official or other staff member, even in the exercise of a broad discretion, it should take into consideration all the factors which may affect its decision; when doing so, it must take into account not only the interests of the service but also those of the official or staff member concerned. Having regard specifically to the extent of the institutions’ discretion in evaluating the interests of the service, the review undertaken by the Courts of the Union must be confined to the question whether the competent authority remained within reasonable limits and did not use its discretion incorrectly (judgment of 13 June 2012 in Case F‑63/11 Macchia
v Commission, paragraph 50 and the case-law cited, which is the subject of an appeal before the General Court, Case T‑368/12 P).
113. As regards the decision whether or not it was necessary to dismiss the applicant, the AECE was required to examine not only the applicant’s obvious interest in continuing the employment relationship linking him to the institution, but also the interest of the service, in terms of the need of the Council, which is responsible for managing EU classified information, to satisfy itself as to the loyalty, trustworthiness and reliability of the staff it employs.
114. As regards the reconciliation of the interests at stake in the present case, it is clear from the note of 11 January 2012, the content of which is set out in paragraph 27 above, that, in pursuance of Article 5(3) of the GIP, the Secretary-General of the Council did examine the possibility of transferring the applicant to another post. The applicant was not transferred, however, in view of his profile, the selection procedure under which he had been employed, the adverse information concerning him that emerged in the outcome to the NSA’s security investigation, and the duty of the Secretary-General of the Council to take special precautions with regard to security.
115. In that regard, the applicant’s reading of the note of 11 January 2012, according to which, in the light of his last staff report his profile was appropriate for his being retained in his post as meeting-room clerk, or at least in his former position as floor messenger, cannot be accepted.
116. As regards the possibility of being retained in his post or being reassigned to his former position, it is clear from Article 7(3) of Decision 2011/292, in conjunction with Staff Note No 58/09, the content of which for the purposes of the case is set out in paragraph 20 above, that, by reason of their duties, all meeting-room clerks of the General Secretariat may need to have access to EU classified information to EU [Confidential] or EU [Secret] level and must, accordingly, undergo security clearance. Without security clearance the applicant could not perform the duties for which he had been engaged in 2007, which were of the same nature as those which he was performing before the termination of his contract, to the satisfaction of his superiors, as is clear from his last staff report.
117. As regards the possibility of the applicant being transferred to another post, before adopting the contested decision the AECE had to take into account the requirements of the potential post in the light of the applicant’s qualifications and potential. Having been engaged, under a procedure for the selection of contract staff, as a messenger to carry out manual and/or administrative support service tasks, a post which corresponds to function group I, the applicant could only have been transferred to a post with the same characteristics, which, under Article 8 of the GIP, would have to be a post not included in the list of posts. It is clear from Staff Note No 58/09 that, in order to carry out the tasks specific to posts having those characteristics, staff must undergo security clearance to at least EU Confidential level.
118. The applicant’s argument that, irrespective of the fact that he does not have EU personnel security clearance, he, like other colleagues, could have occupied a post as messenger cannot be accepted either. Although it is true that, at the hearing, the Council stated that, of the 120 persons who were members of the messenger service, 88 of whom were floor clerks, 3 did not have security clearance, according to the data supplied at the hearing by the applicant’s Head of Unit, those 3 persons, who are covered by a derogation granted by the Secretary-General of the Council, have always behaved with integrity, are nearing retirement age, are assigned to non-sensitive areas and are excluded from mobility. The Council added that, in any event, in the service in question there is no contract staff member without security clearance.
119. As regards the account taken of the reasons which led the AECE to refuse the applicant EU personnel security clearance, suffice it to say that the acts providing the grounds for the NSA’s decision could legitimately, in the light of the duty of diligence incumbent on the Council, justify the AECE’s fears regarding the likelihood of a risk of vulnerability in the applicant’s case.
120. It is not possible to accept the interpretation put forward by the applicant that the adverse information concerning him that emerged in the outcome of the NSA’s investigation was invalidated by the review body.
121. Suffice it to say in that regard that, since the Council had been unable to have a copy of the record of the witness examinations lodged before the review body, the reasoning of the review body’s decision of 8 March 2012 was not sufficient to dispel the uncertainty to which the findings of the NSA’s decision had given rise for the Council regarding the applicant’s possible vulnerability.
122. In those circumstances, although the review body had directed the NSA to grant the applicant security clearance to Secret level, the AECE was entitled, without failing in its obligations towards the applicant as his employer, to decide, first, that the applicant should not be authorised to have access to EU classified information and, secondly, since there was no post available to which he could be transferred, to terminate his contract and, lastly, in the light of the review body’s decision, to reject the comp laint made against the contested decision.
123. The fifth plea must therefore also be rejected and, consequently, the first head of claim, seeking annulment of the contested decision and, in so far as necessary, annulment of the decision rejecting the complaint, must be rejected in its entirety.
Second and third heads of claim: compensation for material and non-material damage
– Arguments of the parties
124. The applicant considers that the material damage which the contested decision caused him should be repaired through payment by the Council of the sum of EUR 160 181.85, plus interest, subject to increase or reduction during the proceedings.
125. So far as non-material damage is concerned, he contends that annulment of the contested decision alone would not be sufficient to repair it and claims that the Council should be ordered to pay a sum of EUR 25 000 determined ex aequo et bono, subject to increase or reduction during the proceedings.
126. The Council contends that the claim for damages should be dismissed.
– Findings of the Tribunal
127. According to settled case-law, where the damage on which an applicant relies arises from the adoption of a decision whose annulment is sought, the rejection of the claim for annulment entails, as a matter of principle, the rejection of the claim for damages, as those claims are closely linked (judgment of 29 September 2011 in Case F‑121/10 Heath
v ECB, paragraph 129).
128. By contrast, where the damage does not arise from the adoption of a decision or where the claim for annulment is not dismissed, the administration can be held liable in damages only if the applicant establishes that there is an irregularity, actual damage and a causal link between the act and the damage alleged to have been suffered. As those conditions must be satisfied cumulatively, the fact that one of them has not been satisfied is a sufficient basis on which to dismiss an action for damages ( BB
v Commission, paragraph 82 and the case-law cited).
129. In the present case, it must be noted that the material and non-material damage to which the applicant refers arises from the decision-making behaviour of the Council, which terminated his contract of indefinite duration. However, since the claim seeking annulment of the contested decision was dismissed without the Tribunal finding irregularity in the decision-making behaviour of the AECE, the applicant’s claim for compensation must be rejected.
130. It follows from all the foregoing that the action must be dismissed in its entirety.
Costs
131. Under Article 87(1) 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 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.
132. It is apparent from the reasons set out in the present judgment that the applicant has been unsuccessful. Furthermore, in its pleadings the Council has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant should bear his own costs and pay those incurred by the Council.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr Arguelles Arias to bear his own costs and pay those incurred by the Council of the European Union.