JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
17 May 2018 (*)
(Civil service — Members of the temporary staff — Contract for an indefinite period — Dismissal — Article 47(c)(i) of the CEOS — Manifest error of assessment — Right to be heard — Principle of sound administration — Duty to have regard for the welfare of staff)
In Case T‑566/16,
Erik Josefsson, a former member of the temporary staff of the European Parliament, residing in Malmö (Sweden), represented by T. Bontinck, A. Guillerme and M. Forgeois, lawyers,
applicant,
v
European Parliament, represented initially by M. Dean and L. Deneys, then by M. Dean and Í. Ní Riagáin Düro, acting as Agents,
defendant,
APPLICATION pursuant to Article 270 TFEU seeking, first, annulment of the decision of the Parliament’s authority empowered to conclude contracts of employment of 19 December 2014 to terminate the applicant’s contract as a member of the temporary staff and, secondly, compensation in respect of the non-material damage allegedly suffered by the applicant,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, D. Spielmann and Z. Csehi (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 9 November 2017,
gives the following
Judgment
Background to the dispute
1        The applicant, Erik Josefsson, was recruited by the ‘Greens/European Free Alliance’ political group of the European Parliament (the ‘Greens/EFA Group’ or ‘the Group’) as a member of the auxiliary staff from 27 July 2009 until 26 May 2010. From 16 April 2010, the applicant was engaged, pursuant to the third paragraph of Article 8 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), as a member of the temporary staff at grade AST 3 within the meaning of Article 2(c) of the CEOS for an indefinite period, to carry out tasks in that Group.
2        The applicant worked as the Group’s policy advisor on internet policies and intellectual property rights for the Parliament’s Legal Affairs Committee (‘the JURI Committee’). On 1 July 2014, the description of his post was changed to ‘political expert’.
3        Following the elections held in Parliament in May 2014, the Secretariat of the Greens/EFA Group was reorganised. The Secretariat’s new organigram was the subject of meetings of the Greens/EFA Group’s Bureau that took place on 2 and 9 December 2014. On 11 December 2014, a proposal for an organigram was sent to the MEPs and staff of that group. The new organigram was adopted at a Group meeting on 17 December 2014. That meeting was preceded, on the same day, by a meeting of the Group’s Bureau, during which a vote was taken on the proposed organigram and questions linked to the Group’s approval of the organigram were addressed.
4        On 16 December 2014, Mr D., the Group’s Deputy Secretary General, invited the applicant to a meeting with Mr L., the Co-President of the Group, in his capacity as the authority empowered to conclude contracts of employment (‘the AECE’), to discuss the consequences of the new organigram of the Group’s Secretariat. That meeting took place on 18 December 2014 in the presence of Mrs T., the Secretary General of the Group, and Mr D. (‘the meeting of 18 December 2014’).
5        By letter of 19 December 2014 (‘the contested decision’), the AECE terminated the applicant’s contract as a member of the temporary staff, giving four months’ notice, in accordance with Article 47(c)(i) of the CEOS, claiming that the reorganisation of the Greens/EFA Group’s Secretariat was necessary as a result of the Parliamentary elections in May 2014.
6        On 3 March 2015, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union against the contested decision, referring, inter alia, to the arguments raised in the complaint made by an MEP, Mr A., in the Greens/EFA Group.
7        By letter dated 22 July 2015, the Bureau of the Greens/AFE Group rejected the applicant’s complaint. It is apparent from that decision, inter alia, that the structure of the department responsible for the JURI Committee had to be reviewed in the light of the new priorities established by the Group and that, in that context, it was necessary to review the division of tasks and to broaden the competences of the staff available. It was also stated that the department responsible for the JURI Committee required a person with a qualification in law and with experience in the fields of copyright, international trade and patents related to medicinal products. Furthermore, it was considered that the applicant’s career profile did not correspond to the current needs of the service or to other posts available.
Procedure and forms of order sought
8        By application lodged at the Registry of the Civil Service Tribunal on 2 November 2015, the appellant brought the present action, which was registered as Case F‑138/15.
9        During the proceedings before the Civil Service Tribunal, the applicant requested, both in the reply and by separate document lodged on 3 May 2016, the adoption of measures of organisation of procedure.
10      Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court in the state in which it was found as at 31 August 2016. It was registered under number T‑566/16 and assigned to the Sixth Chamber.
11      In its observations of 9 December 2016 on the request for measures of organisation of procedure of 3 May 2016, the Parliament produced certain documents requested by the applicant.
12      In the context of his comments on 22 February 2017 on the Parliament’s observations of 9 December 2016, the applicant submitted a request that certain witnesses be heard.
13      Following a measure of organisation of procedure by the General Court, the applicant submitted, on 25 April 2017, a request for a hearing.
14      On the proposal of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 89 of the Rules of Procedure of the General Court, requested the parties to answer certain written questions. The parties did so within the prescribed time limit.
15      The parties presented oral argument and gave replies to the Court's questions at the hearing on 9 November 2017.
16      The applicant contends that the Court should:
–        annul the contested decision;
–        order the Parliament to compensate the applicant for the non-material damage suffered, assessed provisionally on an ex aequo et bono basis at EUR 20 000;
–        order the Parliament to pay the costs.
17      The Parliament contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
Law
The head of claim seeking annulment of the contested decision
18      The applicant raises three pleas in law in support of his application for annulment of the contested decision. The first plea alleges manifest errors of assessment, the second alleges infringement of the right to be heard and infringement of Article 19 of the General implementing provisions governing competitions and selection procedures, recruitment and the grading of officials and other servants of the European Parliament, adopted by the Secretary-General of the Parliament on 17 October 2014 (‘the GIP’), and the third alleges infringement of the principle of sound administration and the duty to have regard for the welfare of staff.
19      It is appropriate to examine the second plea, alleging infringement of the right to be heard and of Article 19 of the GIP, before turning to the first and third pleas.
20      In the second plea, the applicant claims that his right to be heard before the adoption of the contested decision was infringed.
21      First, he observes that at the meetings on 2, 9 and 17 December 2014 the Bureau of the Greens/EFA Group made a decision as to the new organigram and the staff members who would be affected by the reorganisation process. He infers therefrom that the decision to dismiss him was taken in early December 2014, whereas the invitation to the meeting to discuss the consequences of the new organigram was sent on 16 December 2014. He also states that that invitation had been sent before the Group’s vote on the new organigram. Furthermore, he submits that he could not have been aware of that decision since the internal discussions on the new organigram on 2 and 9 December 2014 took place in closed session.
22      Secondly, the applicant states that on 18 December 2014 he was informed by the AECE of the Group’s decision to terminate his contract. As regards that meeting, he specifies that he did not know that his dismissal was being contemplated and that he was very upset by the way in which the information was presented. Furthermore, he did not have a chance to make any comments on that decision during the meeting of 18 December 2014.
23      Thirdly, the applicant maintains that had he been given the opportunity to present his observations on the termination of his contract, he would have submitted a considerable amount of relevant information, which might have led the AECE to withdraw the contested decision.
24      The Parliament contests those arguments.
25      First, the Parliament contends that the decision to dismiss the applicant was not taken by the Bureau of the Greens/AFE Group on 17 December 2014 but by the AECE on 19 December 2014, after hearing the applicant’s arguments on 18 December 2014. It states that the adoption of the organigram on 17 December 2014 cannot be regarded as an individual measure affecting the applicant and, therefore, the applicant had no right to be heard before its adoption.
26      Secondly, the Parliament observes that the applicant was invited, by email of 16 December 2014, to a meeting with the AECE to discuss the consequences of the new organigram of the Group Secretariat and that the invitation indicated that he could be accompanied. It adds that it was known that the total number of MEPs of the Greens/AFE Group had fallen following the Parliamentary elections in May 2014 and that the applicant should have been aware that his dismissal was a possibility. It concludes from this that the reasons given for the meeting were sufficient, bearing in mind the context, which was known to the applicant.
27      Thirdly, the Parliament states that at the time of the meeting on 18 December 2014 no decision had been taken about the applicant and that during that meeting he was given the opportunity to comment on the proposal to terminate his contract, which he did. It also states that the AECE took those comments into account before adopting the contested decision.
28      Fourthly, the Parliament maintains that the applicant does not provide any indication of how further information about the purpose of the meeting of 18 December 2014 could have had any influence on the content of the contested decision. Nor has he indicated any additional factors which he could have raised at the meeting had he been fully informed of its purpose. Moreover, if he had further matters he wished to bring to the AECE’s notice, he could have informed it of them after that meeting or in the complaint. Lastly, the Parliament contends that even if the General Court were to take the view that there had been an infringement of the applicant’s rights of defence, there is nothing to suggest that the outcome of the procedure might have been different.
29      As a preliminary point, it should be noted that the Parliament, in response to questions from the Court, withdrew its arguments concerning the inadmissibility of the second plea.
30      In addition, it must be observed that the rights of the defence constitute a fundamental principle of EU law. It follows from that principle that the person concerned must be given the opportunity, before the drawing up of a decision adversely affecting him, to make his views effectively known as to the truth and relevance of the facts and circumstances on which that decision was based (see judgment of 11 September 2013, L v Parliament, T‑317/10 P, EU:T:2013:413, paragraph 80 and the case-law cited). That principle has been repeated in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, which acknowledges ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’, a provision which has been found by the EU judicature to be of general application (see judgment of 11 September 2013, L v Parliament, T‑317/10 P, EU:T:2013:413, paragraph 81 and the case-law cited). That principle is therefore, in principle, also applicable in cases concerning the civil service.
31      It also follows from the case-law that the plea alleging infringement of the rights of the defence cannot be relied upon effectively to challenge a decision ending the secondment of an official to a Parliamentary political group, on account of the particular nature of the tasks exercised in such a group (see, to that effect, judgment of 29 April 2004, Parliament v Reynolds, C‑111/02 P, EU:C:2004:265, paragraphs 51 to 60). Furthermore, that exception cannot be confined exclusively to the case of a decision ending the secondment of an official filling the position of Secretary General of a Parliamentary political group, but must be applied every time the requirement to maintain relationships of trust is at issue (see judgment of 11 September 2013, L v Parliament, T‑317/10 P, EU:T:2013:413, paragraph 83 and the case-law cited).
32      Moreover, in cases where the plea alleging infringement of the rights of the defence may effectively be relied upon, even where those rights have been infringed, it is also necessary, for the plea to be successful, that had it not been for that irregularity, the outcome would have been different (see judgment of 19 July 2017, Parliament v Meyrl, T‑699/16 P, not published, EU:T:2017:524, paragraph 16 and the case-law cited).
33      Those are the principles to be borne in mind when examining the applicant’s arguments.
34      It must first be observed in this connection that it is indisputable that the contested decision adversely affects the applicant, especially given that it is a decision to dismiss, which is one of the administrative measures liable to affect a member of staff most severely (see judgment of 5 February 2016, GV v EEAS, F‑137/14, EU:F:2016:14, paragraph 72 and the case-law cited).
35      Furthermore, although the case-law cited in paragraph 31 establishes an exception to the possibility of members of staff with positions in a Parliamentary political group relying on infringement of the rights of the defence, it must be held that that exception is not applicable in the present case. The contested decision was not taken on the ground of a loss of trust, which is the reasoning on which that exception is based. The ground given for that decision was the reorganisation of the Secretariat of the Greens/EFA Group, in particular through the revision of the structure of its Department responsible for the JURI Committee, following the Parliamentary elections held in May 2014.
36      It follows that the contested decision could not be taken until after the applicant had been given the opportunity to put forward effectively his view concerning the draft dismissal decision, in the context of an oral and/or written exchange of views initiated by the AECE, proof of which must be adduced by the latter (see, to that effect, judgment of 3 June 2015, BP v FRA, T‑658/13 P, EU:T:2015:356, paragraph 56).
37      In that regard, it should be observed that, on 16 December 2014 at 19:51, the applicant was invited to attend a meeting ‘to discuss the consequences of the new organigram of the Group’, scheduled for 10.30 on 18 December 2014. As stated in paragraph 3 above, on 17 December 2014, the following day, the new organigram of the Greens/EFA Group was adopted by that group.
38      Furthermore, it is not disputed that the applicant attended a meeting with the AECE on 18 December 2014 in the presence of two other people. The minutes of the meeting of 18 December 2014 show that the applicant was informed during that meeting that in the context of the reorganisation of the Secretariat of the Group following the Parliamentary elections held in May 2014, the structure of the department responsible for the JURI Committee had had to be revised in the light of the new priorities identified by the Group. In addition, the minutes state that it had proved necessary to review the division of tasks, extend the competences of the staff concerned and in particular to require in-depth expertise in the fields of international trade, patents related to medicinal products and copyright. In respect of the applicant, the minutes state, inter alia, that his knowledge of languages and subject expertise were less useful for the purposes of monitoring the work in those subject-areas. They added that the applicant put forward his views during the interview on 18 December 2014.
39      It should also be noted that, in the contested decision, which was adopted on 19 December 2014, the AECE justified the dismissal of the applicant on the grounds of the reorganisation of the Secretariat of the Greens/EFA Group, which had become necessary following the Parliamentary elections held in May 2014.
40      As has already been pointed out in paragraph 7 above, that statement of reasons was supplemented in the decision rejecting the complaint, from which it is apparent, in essence, that the applicant’s profile did not correspond to the requirements of the Department responsible for the JURI Committee, as revised in the light of the new priorities identified by the Group as part of the reorganisation of its Secretariat following the Parliamentary elections held in May 2014. Specifically, it was stated that the department responsible for the JURI Committee required a person with a qualification in law and with experience in the fields of copyright, international trade and patents related to medicinal products.
41      It must be noted in that context that, during the hearing, the Parliament emphasised the Group’s requirement for the persons attached to the Department responsible for the JURI Committee, following the internal reorganisation, to possess a qualification in law.
42      In the light of the foregoing, it should be noted in the first place, from a procedural point of view, that the applicant was not in a position to understand, given the generic wording of the invitation to the meeting held on 18 December 2014 and the fact that in the draft of the new organigram of the Group sent to staff on 11 December 2014 the number of persons attached to the Department responsible for the JURI Committee remained unchanged, that his dismissal was possible.
43      Moreover, even assuming that the applicant could have guessed the precise subject matter of the meeting held on 18 December 2014, having regard to the context in which the contested decision was adopted, the period available to him to prepare for a pre-dismissal interview (namely one working day, during which the Group meeting on the adoption of the new organigram also took place) was insufficient to be able to conclude that conditions had been created enabling him to effectively make known his views during that meeting .
44      In the second place, from a substantive point of view, contrary to what was submitted by the Parliament at the hearing, it is not apparent from the minutes of the meeting held on 18 December 2014 that the requirement for a qualification in law was raised as such in the course of the meeting preceding the adoption of the contested decision. It follows that the applicant was not given an opportunity to effectively put forward his view on that aspect, which has been identified as one of the pre-requisites for occupying a position with the Department responsible for the JURI Committee following the reorganisation of the Group. Furthermore, that factor was decisive in the decision to dismiss the applicant, as the Parliament in essence acknowledge at the hearing.
45      In addition, despite the fact that, as the Parliament contends, the adoption of the Group’s organigram cannot be equated with an individual measure directly affecting the applicant, the identification in circumstances such as those of the present case of the needs of the Department responsible for the JURI Committee in connection with the reorganisation of the Group, and its ensuing consequences for the applicant, are inevitably linked to the adoption of the Group organigram and to the associated decisions concerning the description of the posts therein, about which the applicant was not heard.
46      In the light of the forgoing, to concede in the present case that the applicant’s right to be heard was observed would render meaningless that fundamental right, enshrined in Article 41(2)(a) of the Charter of Fundamental Rights, since the very content of that right implies that the person concerned must have the possibility of influencing the decision-making process at issue (see, to that effect judgment of 8 October 2015, DD v FRA, F‑106/13 and F‑25/14, EU:F:2015:118, paragraph 67 and the case-law cited).
47      It follows that the applicant was not in a position to make known effectively his views on his dismissal before the adoption of the contested decision. Therefore, his observations, as he might have presented them, could not be taken into account in the procedure for the adoption of that decision.
48      In addition, contrary to what the Parliament argues, it cannot be ruled out that if the applicant had been properly heard he would indeed have been able to influence the decision-making process in question, having regard to the circumstances of the case, in particular that referred to in paragraph 44 above concerning the absence of a qualification in law, in relation to which the applicant could have relied on his professional experience acquired so far.
49      Accordingly, it must be found that the applicant’s right to be heard was infringed and the second plea must be upheld in so far as it relates to that right. The contested decision must therefore be annulled, without it being necessary to rule on the question of whether the Parliament was required to communicate to the applicant the minutes of the meeting of 18 December 2014, or to examine the other pleas raised by the applicant or his applications for measures of organisation of procedure and measures of inquiry.
The head of claim seeking an order for the Parliament to pay compensation for the non-material damage suffered
50      The applicant claims that the various unlawful acts committed by the Parliament, particularly the infringement of the right to be heard and the infringement of the duty to have regard for the welfare of staff, are especially serious and warrant the award of compensation in respect of non-material damage assessed at EUR 20 000. He also states that he was extremely shocked by the termination of his contract, which was unexpected and moreover bluntly announced and therefore caused him a great deal of stress and concern regarding his professional career.
51      The Parliament takes issue with those arguments.
52      It contends that, in accordance with the case-law concerning actions brought by officials and staff of the European Union, claims for damages should be rejected where they are closely associated with actions for annulment which have themselves been dismissed as inadmissible or as unfounded. Furthermore, it argues that the applicant has demonstrated neither that the contested decision was unlawful, nor that there was a causal link between that decision and the damages claimed.
53      In this connection, according to settled case-law regarding civil service matters the European Union can be held liable for damages only if a number of conditions were satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, actual damage suffered and the existence of a causal link between the act and the damage alleged to have been suffered (see judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 102 and the case-law cited).
54      As regards the non-material damage, it is apparent from the case-law that the annulment of a measure of the administration may in itself constitute appropriate and, in principle, sufficient reparation for any non-material damage which the applicant may have suffered, except where the unlawful act of the administration contains an assessment of the staff member’s abilities or conduct likely to cause him harm (judgment of 12 December 2000, Dejaiffe v OHIM, T‑223/99, EU:T:2000:292, paragraph 91).
55      More specifically, any dismissal is by nature likely to generate in the person dismissed feelings of rejection, frustration and uncertainty as to the future. Thus it is only where there are special circumstances that it may be declared that the unlawful conduct of an employer has had a psychological impact on the staff member beyond what a dismissed person normally feels, and that that person is entitled to payment of compensation for non-material damage (judgment of 26 May 2011, Kalmár v Europol, F‑83/09, EU:F:2011:66, paragraph 81).
56      In the present case, the applicant merely asserts in general terms that he was particularly shocked by the termination of his contract and suffered from significant stress and concern regarding his professional career without claiming, still less proving, the existence of special circumstances justifying the payment of compensation for non-material damage.
57      It follows that the applicant’s claim for compensation in respect of non-material damage in addition to the compensation already arising from the delivery of the present judgment annulling the contested decision must be rejected.
Costs
58      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
59      In the present case, since the Parliament has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Annuls the decision of the Authority Empowered to Conclude Contracts of Employment of the European Parliament dated 19 December 2014 concerning the termination of Erik Josefsson’s contract as a member of the temporary staff;
2.       Dismisses the action as to the remainder;
3.      Orders the Parliament to pay the costs.
Berardis
Spielmann
Csehi
Delivered in open court in Luxembourg on 17 May 2018.
E. Coulon
G. Berardis
Registrar
President
*      Language of the case: English.