JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
14 July 2021 (*)
(Civil service – Members of the temporary staff – Sick leave – Termination of the contract without notice – Article 16 of the CEOS – Article 48(b) of the CEOS – Duty of care – Article 34 of the Charter of Fundamental Rights – Liability – Material harm – Non-material harm – Causal link)
In Case T‑164/19,
AQ, represented by L. Levi and N. Flandin, lawyers,
applicant,
v
European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), represented by M. Chiodi, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
supported by
Council of the European Union, represented by R. Meyer and M. Alver, acting as Agents,
intervener,
ACTION under Article 270 TFEU seeking, first, annulment of the decision of eu-LISA of 8 May 2018 to terminate the applicant’s contract as a member of the temporary staff and, secondly, compensation for the loss which the applicant claims to have suffered as a result of that decision,
THE GENERAL COURT (Seventh Chamber),
composed of R. da Silva Passos, President, L. Truchot (Rapporteur) and M. Sampol Pucurull, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 1 February 2021,
gives the following
Judgment
Background to the dispute
1        On 16 September 2013, the applicant, AQ, was recruited by the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), headquartered in Tallinn (Estonia), as a member of the temporary staff, for a renewable period of five years, under a contract concluded on the basis of Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), annexed to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’). Following her recruitment, she occupied the post of [confidential]. (1)
2        On 27 July 2015, pursuant to Decision No 58/2015 of the Agency’s Executive Director, acting as the authority empowered to conclude contracts of employment (‘the AECE’), the applicant was transferred to [confidential]. Her contract was amended accordingly.
3        By AECE decision No 123/2016 of 11 November 2016, the applicant was transferred to [confidential]. On 11 February 2017, she lodged a complaint against that decision, which was rejected on 31 May 2017.
4        During 2016, the applicant was absent from work for long periods on health grounds. For the same reason, she was allowed to work remotely from 1 September to 31 October 2016. On 3 November, and again on 1 December 2016, she informed the Agency’s human resources department that she was extending her sick leave.
5        Whilst the applicant was declared fit to work part time by the European Commission’s medical service with effect from 9 January 2017, the applicant did not return to work on that date. Although she was subject to that scheme for part-time work on medical grounds for several months, she was regularly absent during that period for full days. Some of her days of absence were deducted from her annual leave.
6        By letter of 22 March 2017, the AECE informed the applicant that, as of 31 March 2017, she would have no remaining annual leave and that, in accordance with Article 59(3) of the Staff Regulations, which applied to members of the temporary staff by analogy under the first paragraph of Article 16 of the CEOS, unjustified absence days would start to be deducted from her pay. In addition, that letter stated that, if the applicant did not resume work by 10 April 2017, a procedure for early termination of her contract would be initiated.
7        On 10 April 2017, the applicant resumed part-time work under a scheme for part-time work on medical grounds.
8        On 27 June 2017, the applicant was asked to attend a meeting with her head of sector. Following an incident involving the applicant and the head of sector at that meeting, the applicant was placed on sick leave. By letter of 10 July 2017, the AECE informed the applicant that her attitude during that meeting constituted a failure to honour her professional obligations and that he was contemplating suspending her from her duties. The applicant was invited to submit written comments to the AECE in that regard. She submitted her comments by letter of 20 July 2017. By decision of 21 July 2017, the AECE suspended the applicant from her duties from 1 August to 30 September 2017, pursuant to Article 23 of Annex IX to the Staff Regulations. The applicant then proposed new working arrangements and made a request for an internal investigation to be opened under Annex IX to the Staff Regulations, before lodging a complaint against the suspension decision on 23 October 2017. The complaint was rejected by the AECE’s decision of 30 November 2017.
9        On 15 December 2017, the Executive Director of eu-LISA adopted a measure for the reorganisation of services and Decision No 129/2017, by which he cut the post of [confidential].
10      By e-mails of 15 February and 13 March 2018, the applicant was informed that eu-LISA’s Executive Director, in his capacity as the AECE, recommended the non-renewal of her contract. By letter of 9 April 2018, the AECE informed the applicant that her contract would not be renewed. The AECE informed her that her last day of work would be 15 September 2018. On 16 April 2018, the applicant lodged a complaint against the decision of 15 December 2017. That complaint was rejected by decision of the AECE of 6 July 2018. On 9 July 2018, the applicant lodged a complaint challenging the decision contained in the letter of 9 April 2018. That complaint was rejected by decision of the AECE of 23 October 2018.
11      By letter of 23 April 2018, eu-LISA’s Executive Director, in his capacity as the AECE, informed the applicant that, on 1 February 2018, the number of days of paid sick leave which she had taken since her recruitment was greater than the number of days worked and that, consequently, he intended ‘to terminate [her] contract of employment on the basis of Articles 16 and 91 of the CEOS’. The applicant was invited to exercise her right to be heard before 29 April 2018.
12      By letter of 25 April 2018, the applicant asked for the time allowed for submission of her comments to be extended by at least two weeks. By letter of the same date, she requested that the evidence relating to the calculation of her days of absence and any opinions of the internal services be provided to her.
13      On 27 April 2018, the deadline referred to above was extended to 2 May 2018, on which date the applicant lodged her comments. By email of 4 May 2018, the AECE sent the applicant the tables recording her days worked and her leave days over the period of her employment.
14      By decision of 8 May 2018 (‘the contested decision’), the AECE, having established that, over the period of her employment, the applicant had spent more days on paid sick leave than she had worked, terminated her contract, without notice and with immediate effect, referring to Articles 16 and 91 of the CEOS.
15      On 7 August 2018, the applicant lodged a complaint against the contested decision pursuant to Article 90(2) of the Staff Regulations, which was rejected by decision of the AECE of 4 December 2018 (‘the decision rejecting the complaint’).
Procedure and forms of order sought
16      By application lodged at the Court Registry on 14 March 2019, the applicant brought the present action. On the same day, she submitted an application for anonymity and an application for the omission of certain information vis-à-vis the public pursuant to Article 66 of the Rules of Procedure of the General Court. On 26 April 2019, she was granted anonymity.
17      On 27 June 2019, the Council of the European Union applied for leave to intervene in the present case in support of the form of order sought by eu-LISA. On 25 July 2019, the applicant lodged a request for confidential treatment vis-à-vis the Council, on the basis of Article 144(2) of the Rules of Procedure (‘the request for confidential treatment’).
18      By order of the President of the Eighth Chamber of the General Court of 16 September 2019, the Council was granted leave to intervene in support of the form of order sought by eu-LISA. That order provisionally restricted the communication of the procedural documents to the Council to their non-confidential versions, pending any objections by that institution to the request for confidential treatment.
19      By document lodged at the Court Registry on 2 October 2019, the Council challenged the request for confidential treatment.
20      Following changes to the composition of the General Court, the President of the General Court, pursuant to Article 27(3) of the Rules of Procedure, by decision of 21 October 2019, reallocated the case to a new Judge-Rapporteur, assigned to the Seventh Chamber.
21      By order of the President of the Seventh Chamber of the General Court of 27 November 2019, the request for confidential treatment was allowed as regards paragraph 43 of the application and, in part, Annex A.11 to the application, namely pages 44 and 45 of the consecutively numbered annexes.
22      On 17 December 2019, the applicant lodged the non-confidential version of the application and the annexes thereto at the Court Registry, in accordance with the order referred to in paragraph 21 above. That version was notified to the Council and a time limit was set for it to submit a statement in intervention.
23      On 19 December 2019, by way of measures of organisation of procedure under Articles 88 and 90 of the Rules of Procedure, the Court invited the main parties to express their views on the appropriate conclusions to be drawn in the present case from paragraphs 81 to 97 of the judgment of 11 June 2019, TO v EEA (T‑462/17, not published, EU:T:2019:397), having regard to the arguments raised by the applicant in the second and third pleas in law. The Council was requested to comment on that matter in the statement in intervention.
24      The main parties complied with that measure within the prescribed period, whereas the Council, in the statement in intervention lodged at the Court Registry on 31 January 2020, stated that it had no particular observations to make on the judgment of 11 June 2019, TO v EEA (T‑462/17, not published, EU:T:2019:397).
25      The written part of the procedure was closed on 25 February 2020.
26      By document lodged at the Court Registry on 26 March 2020, the applicant requested a hearing, on the basis of Article 106(2) of the Rules of Procedure.
27      On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure and, by way of measures of organisation of procedure, requested the main parties to answer certain questions. The replies of those parties were lodged at the Court Registry on 10 August 2020.
28      Subsequently, the Court invited eu-LISA to comment in writing, no later than 14 October 2020, on the applicant’s reply to one of the abovementioned questions. Eu-LISA submitted its observations in that regard by document lodged on that date.
29      As the hearing, initially scheduled for 12 November 2020, was deferred at the request of eu-LISA, the parties presented oral argument and replied to the Court’s oral questions at the hearing on 1 February 2021.
30      The applicant claims that the court should:
–        annul the contested decision and, in so far as necessary, the decision rejecting the complaint;
–        order eu-LISA to pay her her full salary until 15 September 2018, less unemployment benefit, together with default interest, in respect of the material damage suffered;
–        order eu-LISA to pay her damages in respect of non-material damage suffered, assessed ex aequo et bono at EUR 10 000;
–        order her state of health to be assessed under Article 33 of the CEOS;
–        order eu-LISA to pay the costs.
31      eu-LISA contends that the Court should:
–        dismiss the action as unfounded;
–        reject all the arguments and claims submitted;
–        order the applicant to pay the costs.
32      The Council contends that the Court should dismiss the action.
Law
33      The applicant has submitted a claim for annulment and for damages.
The claim for annulment
34      The applicant seeks annulment of the contested decision and, in so far as is necessary, of the decision rejecting the complaint.
35      As a preliminary point, as regards the applicant’s request for the annulment, in so far as is necessary, of the decision rejecting the complaint, it should be noted that, according to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect of bringing before the Court the act against which the complaint was submitted, where that claim, as such, lacks any independent content (judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 12 July 2018, PA v Parliament, T‑608/16, not published, EU:T:2018:440, paragraph 22).
36      In the present case, since the decision rejecting the complaint merely confirms the contested decision, by which the applicant’s contract was terminated with immediate effect, the claim for annulment of the decision rejecting the complaint lacks any independent content. It is therefore not appropriate to rule specifically on that claim even though, when examining the legality of the contested decision, the statement of reasons for the decision rejecting the complaint should be taken into account, as it is deemed to cover the statement of reasons in the contested decision (see, to that effect, judgments of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 57, and of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 43).
37      In support of her claim for annulment, the applicant puts forward six pleas in law.
38      The first plea alleges infringement of the applicant’s rights of defence and, in particular, of her right to be heard. The second plea alleges infringement of Articles 16 and 48 of the CEOS and manifest errors of assessment of the facts. The third plea alleges infringement of the obligation to state reasons. The fourth plea in law alleges infringement of the duty of care. The fifth plea alleges infringement of Articles 31 and 34 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The sixth plea alleges misuse of powers.
39      It is appropriate to begin by examining the second, fourth and fifth pleas together.
40      By her second plea, the applicant claims that the AECE, in adopting the contested decision, did not exercise its discretion under Articles 16 and 48 of the CEOS. By her fourth plea, the applicant states that eu-LISA did not take into account her fragile state of health, in circumstances where she had been on sick leave for a long period in 2016 and then continuously since July 2017. By her fifth plea, the applicant claims that she was left without social security and health cover on account of the termination of her contract without notice, which deprived her of pay and prevented her from making a request for invalidity protection.
41      It is necessary to recall the main provisions applicable in the present case, namely the second and third paragraphs of Article 16 and Article 48(b) of the CEOS.
42      Under the second and third paragraphs of Article 16 of the CEOS:
‘… the paid sick leave provided for in Article 59 of the Staff Regulations shall not, however, exceed three months or the length of time worked by the member of the temporary staff, where the latter is longer. The leave shall not extend beyond the term of his contract.
On expiry of those time limits, a servant whose contract is not terminated, notwithstanding that he is unable to resume his duties, shall be placed on unpaid leave.’
43      Article 48 of the CEOS states as follows:
‘Employment, whether for a fixed or for an indefinite period, may be terminated by the institution without notice:
…
(b)      if the servant is unable to resume his duties at the end of a period of paid sick leave as provided for in Article 16. In such case, the servant shall receive an allowance equal to his basic salary, plus family allowances at the rate of two days per month of service completed.’
44      It should be noted that, although, in the contested decision, the AECE cites the second paragraph of Article 16 of the CEOS, he does not refer to Article 48(b) of the CEOS, but to Article 91 thereof, under which Article 16 applies by analogy to contract staff.
45      First, since it is common ground that the applicant was a member of the temporary staff, and not a member of the contract staff, the reference to Article 91 of the CEOS is irrelevant.
46      Secondly, as follows from the applicant’s complaint and the decision rejecting it, it must be found that, in order to terminate the applicant’s employment without notice and with immediate effect, the AECE intended to rely on the second paragraph of Article 16 and Article 48(b) of the CEOS and the applicant understood the legal basis for the termination of her contract. It should also be noted that, at the hearing, the parties confirmed those findings.
47      In her application, the applicant calls into question the fact that the AECE automatically applied the relevant provisions of the CEOS to her, even though those provisions confer a discretion on the administration.
48      According to the applicant, it is incorrect to take the view, as did the AECE in the decision rejecting the complaint, that Articles 16 and 48 of the CEOS contain a rule under which, where the number of days not worked by a member of staff exceeds the number of days worked, his or her contract must be terminated without notice. Termination is envisaged as a possibility and unpaid leave is not an exception to the alleged rule whose existence was asserted by the AECE.
49      eu-LISA disputes the applicant’s arguments. It submits that the AECE has no discretion when ascertaining whether the period of paid sick leave exceeds the period of service worked. It is only where a staff member’s contract is not terminated that he or she is entitled to unpaid leave.
50      It should be noted that the contested decision is based on the finding that the threshold laid down in the second paragraph of Article 16 of the CEOS (‘the threshold in question’) had been reached. As the parties acknowledge, the AECE relied on an interpretation of the second and third paragraphs of Article 16 and of Article 48(b) of the CEOS, according to which, where the threshold in question is reached, termination of the contract is the rule and placing on unpaid leave is the exception.
51      In the contested decision, the AECE found that, at the end of the sick leave covered by the applicant’s medical certificate, the threshold in question was exceeded by 86 days, that is to say, the difference between the 525 days of paid sick leave granted to the applicant and her 439 days worked.
52      Before determining whether the AECE could terminate the applicant’s contract on the sole basis of the finding that the threshold in question had been exceeded, it is necessary to examine the arguments by which she disputes AECE’s calculations of her days of leave and her days of service. The applicant criticises the AECE for having taken into account the period subsequent to the contested decision, for having applied an incorrect method for calculating the aggregation of the various categories of days and for several manifest errors of assessment.
The taking into account of the period subsequent to the contested decision
53      The applicant claims that, as her contract was terminated with effect from 8 May 2018, by virtue of the contested decision, the period after that date is irrelevant.
54      It should be noted that the AECE established the breakdown of the number of days of sick leave on 31 May 2018, the date on which the applicant’s sick leave covered by a medical certificate ended.
55      However, the AECE cannot take account of days of sick leave subsequent to the date of that decision, which provided for termination without notice with immediate effect, that is, on 8 May 2018. The breakdown cannot therefore include the period from 9 to 31 May 2018. Therefore, as eu-LISA acknowledged before the Court, the information available to it should have led it to take the view that, at the date of the contested decision, the threshold in question had been exceeded, not by 86 days (see paragraph 51 above), but by 73 days, that is, the difference between 512 days of paid sick leave taken by the applicant and her 439 days worked.
The calculation method applied by the AECE
56      At the hearing, the applicant claimed that the lawfulness of the contested decision was affected by the application, by the AECE, of an incorrect calculation method.
57      eu-LISA disputes the admissibility of that complaint.
58      It should be recalled that Article 84(1) of the Rules of Procedure provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure.
59      According to the case-law, that provision is also applicable to complaints or arguments (see, to that effect, order of 18 December 2008, Thierry v Commission, T‑223/07 P, EU:T:2008:606, paragraph 27; judgments of 3 May 2018, Gall Pharma v EUIPO – Pfizer (Styriagra), T‑662/16, not published, EU:T:2018:242, paragraph 40 and the case-law cited, and of 14 December 2018, TP v Commission, T‑464/17, not published, EU:T:2018:1006, paragraph 52). Furthermore, the general nature of the heading of a plea put forward in the application at first instance cannot cover the development, at a later stage in the proceedings, of specific arguments which are not sufficiently closely related to the arguments raised in the application (see, by analogy, judgment of 22 May 2014, ASPLA v Commission, C‑35/12 P, EU:C:2014:348, paragraph 33).
60      However, a plea or complaint which constitutes an amplification of a plea or complaint previously set out, explicitly or implicitly, in the application and which has a close link with it must be declared admissible (see judgment of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 74 and the case-law cited). In order to be regarded as an amplification of a plea or a head of claim previously advanced, a new line of argument must, in relation to the pleas or heads of claim initially set out in the application, present a sufficiently close connection with the pleas or heads of claim initially put forward in order to be regarded as forming part of the normal evolution of debate in proceedings before the Court (see, to that effect, judgment of 20 November 2017, Petrov and Others v Parliament, T‑452/15, EU:T:2017:822, paragraph 46 and the case-law cited).
61      In the present case, at the hearing, the applicant submitted that several language versions of the second paragraph of Article 16 of the CEOS other than the English version, used by the AECE, refer to the concept of ‘period of service completed’ and not, like the English version, to that of ‘time worked’. According to the applicant, it follows that the threshold in question must be calculated not only on the basis of the number of days during which she worked, but also on the basis of the number of days covered by annual leave, other days of leave which the applicant took and the two-month period covered by the suspension decided upon following the incident of 27 June 2017 (see paragraph 8 above). She alleges that the AECE was therefore wrong to include only days worked in its calculation of days of service.
62      It should be noted that, at the hearing, the applicant claimed, in essence, that eu-LISA erred in law in the interpretation of the second paragraph of Article 16 of the CEOS. In the application, the applicant had submitted, in the context of the first plea, which relates to infringement of the rights of the defence, that the tables which she had received showed inconsistencies and that it was difficult to determine whether the non-working days, such as Saturdays, Sundays and public holidays, had been taken into account in the calculation. In the context of the second plea, which concerns the infringement of Articles 16 and 48 of the CEOS, in so far as the AECE did not exercise its discretion, and the existence of manifest errors of assessment by the AECE, the applicant referred to the relevant paragraphs of the first plea where she alleged that there had been a manifest error of assessment of the facts. The argument alleging an error of law raised by the applicant at the hearing regarding the interpretation of the legal concept of ‘period of service completed’ cannot, in the present case, be regarded as constituting the further refinement of its argument alleging a manifest error of assessment of the facts. Indeed, the presentation of that argument in the application does not contain any information that could relate to an error in the interpretation of that concept.
63      Furthermore, it should be noted that the calculation method used by the AECE in order to determine the threshold in question is one of the essential elements of the contested decision. According to the case-law, any challenge to an element of the calculation method used in the measure whose annulment is sought must be specifically stated at the stage of the application (see, to that effect, judgments of 12 November 2009, SGL Carbon v Commission, C‑564/08 P, not published, EU:C:2009:703, paragraphs 31 and 32, and of 22 May 2014, ASPLA v Commission, C‑35/12 P, EU:C:2014:348, paragraph 34). Such an argument cannot, therefore, be regarded as the mere development of a plea relating to other elements of that calculation method.
64      In the light of the foregoing, it appears that the complaint put forward at the hearing does not amplify a complaint set out in the application.
65      In those circumstances and since it is not based on matters of law or of fact which came to light in the course of the procedure, the complaint summarised in paragraph 56 above is out of time and must be rejected as inadmissible.
The alleged manifest errors of assessment
66      The applicant alleges several manifest errors of assessment of the facts as regards the breakdown made by the AECE in the contested decision.
67      In the application, the applicant disputes, first, the total number of days of sick leave in so far as that total includes half-days completed under the scheme for part-time work on medical grounds (see paragraph 5 above).
68      Secondly, she claims that there are inconsistencies concerning the 34 days of unjustified absence deducted, on eu-LISA’s initiative, from her annual leave for 2017. She points out that 34 days of unjustified absences, which appear in the table showing, for 2017, details of the days worked, public holidays and days of absence covered by annual leave or sick leave, do not appear in the 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.