62017TJ0571(01)_RES
Case T‑571/17 RENV
UG
v
European Commission
Judgment of the General Court (Seventh Chamber, Extended Composition), 21 June 2023
(Civil service – Contract staff – Contract of indefinite duration – Termination of contract – Article 47(c)(i) of the CEOS – Incompetence – Conduct in the service and attitude at work incompatible with the interests of the service – Obligation to state reasons – Right to be heard – Entitlement to parental leave – Article 42a of the Staff Regulations – Application of the minimum requirements in Directives 2010/18/EU and 2002/14/EC to officials and other servants of the European Union – Articles 27, 30 and 33 of the Charter of Fundamental Rights – Workers’ right to information and consultation – Article 24b of the Staff Regulations – Manifest error of assessment – Protection in the event of unjustified dismissal – Indirect challenge to definitive acts – Inadmissibility – Principle of proportionality – Misuse of powers – Liability)
Officials – Members of the contract staff – Termination of a contract of indefinite duration – Obligation to state reasons and respect for the rights of the defence – Scope
(Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(a) and (c); Staff Regulations of Officials, Art. 25; Conditions of Employment of Other Servants, Art. 47(c)(i))
(see paragraphs 35, 36, 50, 51, 62, 63, 69, 70)
Officials – Members of the contract staff – Termination of a contract of indefinite duration – Justification based on incompetence – Obligation to follow in advance the procedure relating to incompetence applicable to officials – None – Need for misconduct or negligence in the exercise of duties – None
(Staff Regulations of Officials, Art. 51; Conditions of Employment of Other Servants, Art. 47(c)(i))
(see paragraphs 58, 376, 379)
Officials – Members of the contract staff – Leave – Parental leave – Revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC – Directive 2010/18 – Protection against less favourable treatment or dismissal on the ground of an application for, or the taking of, parental leave – Taken into account by the Courts of the European Union when interpreting the provisions of the Staff Regulations
(Art. 288, third para., TFEU; Charter of Fundamental Rights of the European Union, Art. 33(2); Staff Regulations of Officials, Arts 1e(2) and 42a; Conditions of Employment of Other Servants, Arts 16 and 80(4); Council Directive 2010/18, Annex, Clause 5(4))
(see paragraphs 77-88, 118-121)
Officials – Members of the contract staff – Termination of a contract of indefinite duration –Justification based on incompetence or serious misconduct of the staff member – Staff member on parental leave – Termination without awaiting return to work – Whether permissible – Limits – Prohibition of dismissal on the ground of an application for, or the taking of, parental leave
(Staff Regulations of Officials, Art. 42a; Conditions of Employment of Other Servants, Arts 3a, 16 and 47(b)(ii) and (c)(i); Council Regulation No 723/2004, recital 2; Council Directives 96/34, Annex, Clause 2(4), and 2010/18, Annex, Clause 5(4))
(see paragraphs 93-113, 117, 122-126, 142)
Officials – Members of the contract staff – Termination of a contract of indefinite duration – General finding of incompetence based on several grounds – Illegalities vitiating certain grounds of the contested decision – Annulment – Limits – Existence of other legal or uncontested grounds sufficiently important to justify the contested decision
(see paragraphs 145, 352, 360)
Acts of the institutions – Directives – Directive 2002/14 establishing a general framework for informing and consulting employees – Requirement for the administration to respect the minimum requirements of the directive
(Art. 288 TFEU; Charter of Fundamental Rights of the European Union, Art. 27; Staff Regulations of Officials, Art. 9(3); European Parliament and Council Directive 2002/14, Arts 1(1), 2(f) and (g) and 4)
(see paragraphs 150-156)
Officials – Representation – Protection of staff representatives – Scope
(Staff Regulations of Officials, Art. 24b; European Parliament and Council Directive 2002/14, Art. 7)
(see paragraphs 158-162)
Officials – Representation – Protection of staff representatives – Termination of the contract of a member of the contract staff – 50% secondment of the staff member for trade union purposes – Justification in the light of the staff member’s failure to comply with the obligation to inform his or her superiors in good time of his or her participation in the trade union meetings – Whether permissible
(Staff Regulations of Officials, Art. 60 and Annex II, Art. 1, sixth para.; European Parliament and Council Directive 2002/14, Art. 7)
(see paragraphs 171-175, 313, 314)
Officials – Acts of the administration – Presumption of validity – Challenge – Burden of proof
(see paragraphs 190, 191)
Actions brought by officials – Pleas in law – Plea alleging excessive length of the proceedings before the Courts of the European Union – Setting aside by the Court of Justice of a decision of the General Court with referral of the case back to that Court – Lack of jurisdiction of the composition of the General Court seised of the referral
(Art. 256(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 47, second para.; Statute of the Court of Justice, Art. 61)
(see paragraphs 200-202)
Officials – Working conditions – Part-time work – Authorisation – Possibility for the person concerned to request withdrawal of the authorisation before the expiry of the agreed period
(Staff Regulations of Officials, Art. 55a and Annex IVa, Art. 2, first para.; Conditions of Employment of Other Servants, Arts 16 and 91)
(see paragraphs 210-212)
Officials – Members of the contract staff – Termination of a contract of indefinite duration – Justification based on incompetence – Finding by the administration – Possibility of relying on facts established over the three preceding years – Obligation to rely exclusively on repeated incidents of misconduct recorded in the staff member’s appraisal reports – None
(Staff Regulations of Officials, Art. 51(1)(a); Conditions of Employment of Other Servants, Art. 47(c)(i))
(see paragraphs 222-228, 364, 372)
Actions brought by officials – Time limits – Mandatory – Indirect challenge of an earlier decision not challenged within the prescribed period – Time-barred – Re-opening – Condition – New fact
(Staff Regulations of Officials, Art. 90(2))
(see paragraphs 234, 235)
Actions brought by officials – Time limits – Indirect challenge of an earlier decision not challenged within the prescribed period – Plea alleging manifest error of assessment seeking to challenge the inferences drawn by the administration from the earlier act not challenged within the prescribed period – Whether admissible
(Staff Regulations of Officials, Arts 90 and 91)
(see paragraphs 236, 260)
Officials – Members of the contract staff – Termination of a contract of indefinite duration – Justification based on repeated and unjustified failure to comply with the time limit for submitting documents justifying absence from the service – Whether permissible
(Staff Regulations of Officials, Arts 57, second para., and 60 and Annex V, Art. 6; Conditions of Employment of Other Servants, Arts 16, 47(c)(i) and 91)
(see paragraphs 251-255)
Officials – Members of the contract staff – Termination of a contract of indefinite duration – Justification based on failure to comply with the obligation to carry out the order of a superior – Whether permissible – Limits – Order manifestly illegal or contrary to the relevant safety standards
(Staff Regulations of Officials, Arts 21, first para., and 21a; Conditions of Employment of Other Servants, Arts 11 and 81)
(see paragraphs 292-295)
Officials – Members of the contract staff – Termination of a contract of indefinite duration – Justification based on misconduct committed intentionally or negligently – Wide discretion of the administration – Unilateral termination – Whether permissible – Obligation to hold a disciplinary procedure – None – Exception – Dismissal without notice in the event of serious misconduct
(Staff Regulations of Officials, Annex IX; Conditions of Employment of Other Servants, Arts 47(b) and (c) and 49 to 50a)
(see paragraphs 388-390)
Résumé
The applicant, UG, is a former member of the contract staff of the Commission. Her contract for an indefinite duration was terminated because of the unsatisfactory nature of her performance and her conduct in the service over several years.
On the date of adoption of the Commission decision terminating her contract (‘the contested decision’), the applicant was on parental leave. On that date and for several years she had exercised a union mandate and enjoyed 50% exemption from her duties.
In her action before the General Court, the applicant sought annulment of the contested decision and compensation for the material and non-material damage which she claimed to have sustained. The Court upheld her action (
1
) and annulled that decision.
The Court of Justice allowed the Commission’s appeal (
2
) and set aside the judgment of the General Court, in so far as, first, it annulled the contested decision; second, it found the existence of an illegality capable of giving rise to the Commission’s liability; and, third, it rejected as inadmissible the applicant’s head of claim seeking compensation for her non-material damage. In addition, the Court of Justice referred the case back to the General Court.
The General Court, sitting in an extended composition, dismisses the action against the contested decision and provides clarification of the obligation of the competent authority, when adopting such a decision, to take into account the minimum requirements contained in Clause 5(4) of the revised Framework Agreement on parental leave, (
3
) as put into effect by Directive 2010/18, (
4
) and the minimum requirements contained in Article 7 of Directive 2002/14, (
5
) in application of, respectively, Articles 33 and 27 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which guarantee, respectively, the fundamental right to parental leave and workers’ right to information and consultation.
Findings of the Court
As a preliminary point, the Court recalls that it should favour an interpretation of the provisions of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) which ensures the consistency of those rules with the principles of the social law of the European Union affirmed by the Charter and allows the inclusion in the Staff Regulations and the CEOS of the substance of the provisions of secondary EU law which constitute rules of minimum protection in order to supplement, as necessary, the other provisions of the Staff Regulations.
The minimum requirements contained in Clause 5(4) of the Framework Agreement
The minimum requirements contained in Clause 5(4) of the Framework Agreement, which reflect and clarify the fundamental right to parental leave enshrined in Article 33(2) of the Charter, in so far as they guarantee protection for every worker against less favourable treatment or dismissal on the ground of an application for, or the taking of, parental leave, must be considered to form an integral part of the Staff Regulations and must, without prejudice to the more favourable provisions contained in those regulations, be applied to officials and other servants of the EU institutions.
In that regard, the provisions of the Staff Regulations and of the CEOS, read in the light of those minimum requirements, do not prohibit the competent authority from adopting a decision dismissing an official or terminating the contract of a member of the contract or temporary staff, in particular on the ground of incompetence, even though that servant is on parental leave on the date of that decision and was, in principle, entitled to resume that post or those duties at the end of that leave.
Clause 5(4) of the Framework Agreement has neither the object nor the effect of prohibiting an employer from deciding to dismiss a worker, even though, on the date of that decision, the worker is on parental leave, provided that the reason for that dismissal is not that the worker applied for or has taken parental leave, in particular on grounds relating to the starting and finishing dates of that leave period or the duration of that leave requested in that application, and that it complies with the other conditions laid down by law or the applicable provisions.
The minimum requirements contained in Article 7 of Directive 2002/14
The establishment in Directive 2002/14 of a general framework for information and consultation of workers constitutes an expression of general principles of EU law laid down in Article 27 of the Charter which are binding on the institutions. More specifically, the provisions of that directive lay down minimum requirements for employee information and consultation, without prejudice to more favourable provisions for employees and, furthermore, employee information and consultation are to be organised through staff representatives as provided for by the applicable legislation, regulations or practices.
Thus, first, the EU institutions must allow the trade union or professional organisations to carry out their representative and consultative tasks on all matters affecting staff and, second, they cannot impose any penalty whatsoever on officials or servants by reason of their trade union activities.
Nevertheless, an official or servant who is on 50% secondment for trade union purposes must, in accordance with Article 60 of the Staff Regulations, obtain prior permission from his or her immediate superior in order to be absent from the service and to take part in the meetings to which he or she is invited on the basis of his or her union mandate or mandate as a staff representative. The immediate superior may, where appropriate, refuse to allow the person concerned to take part in those meetings, by a reasoned decision in writing. The requirement to obtain prior permission laid down in Article 60 of the Staff Regulations is subject to derogation only in the event of sickness or accident and not in the event of participation in staff union representation or in meetings of a representative body.
Consequently, the contested decision could, without failing to comply with the minimum requirements of Article 7 of Directive 2002/14, be based on the ground alleging breach by the applicant of the obligation to inform her immediate superior in good time, before the meetings of the staff committees of which she was a member, that she would be taking part in those meetings, since such a reason is not based on the exercise of her duties as staff representative, but on the applicant’s failure to comply with the conditions of the organisation of the service necessary for the exercise of her mandate.
The extent of review by the Courts of the European Union
As regards the termination of a contract for an indefinite duration of a member of the temporary or contract staff, the administration has, in accordance with Article 47(c)(i) of the CEOS and subject to observance of the notice period stipulated in the contract, a wide discretion and review by the Courts of the European Union must therefore be confined to ascertaining that there has been no manifest error or misuse of powers.
In addition, it follows from the principle of presumption of legality of acts of the EU institutions that it is for the member of the temporary or contract staff who is the subject of a dismissal decision and who brings an action before the Courts of the European Union to demonstrate the illegality of such a decision.
In that regard, it cannot be inferred from Article 30 of the Charter, which states that every worker has the right to protection against unjustified dismissal, that the Court is required to carry out a more specific review than that of manifest error of assessment, or to place the burden of proof of the legality of such a decision on the institution concerned.
Furthermore, when it examines claims for annulment accompanied, where relevant, by claims for compensation, after a case has been referred back to it by the Court of Justice in accordance with Article 61 of the Statute of the Court of Justice of the European Union, the composition of the General Court responsible for adjudicating on those claims does not have jurisdiction to assess whether the duration of the judicial proceedings is excessive and cannot therefore seek to provide a remedy, notably by altering the scope of its review of the legality of the grounds of the decision annulment of which is sought.
Incompetence as justification for the dismissal
The decision to dismiss a member of the temporary or contract staff based on Article 47(c)(i) of the CEOS, which is, in essence, the consequence of the incompetence of the person concerned, may be justified by the reference to a number of precise and consistent material facts, supported where relevant by several annual appraisal reports which reveal unsatisfactory performance, although, taken in isolation, those facts would not appear to be sufficiently serious to justify such a measure.
The incompetence of an official or member of the temporary or contract staff must be assessed, in particular, in the light of his or her ability, efficiency and conduct in the service.
In that regard, failure, in particular repeated failure, to comply with the time limit given to an official or a temporary or contract staff member to communicate documents justifying absence from the service is capable of characterising inappropriate conduct on the part of the official or servant concerned.
In addition, as Article 51 of the Staff Regulations does not apply, even by analogy, to contract staff, no provision of the CEOS requires the administration, when adopting a decision to terminate the contract of a member of the contract staff for incompetence, to rely exclusively on repeated incidents of misconduct which would have to be recorded in the appraisal reports of the staff member concerned.
Lastly, although misconduct or negligence in the exercise of the principal duties entrusted to a member of the temporary or contract staff may, where appropriate, give rise to a disciplinary measure, the fact nevertheless remains that, in the absence of such misconduct or negligence, it is permissible for the administration to terminate the contract of a member of the temporary or contract staff on the ground of incompetence where the general conduct of the staff member concerned, as a result of its inappropriate nature and the fact that it continued over several consecutive years, has negative repercussions on the smooth running of the employing institution.
The neutralisation of the illegal grounds of a decision to dismiss for incompetence containing a number of grounds
Where a number of grounds are stated, even if one or more of the grounds of the contested measure are unfounded, that defect cannot lead to the annulment of that measure if one or more other grounds suffice to constitute lawful justification for that measure, irrespective of the grounds vitiated by illegality.
Thus, where the Court is required to assess the legality of a decision to dismiss based on a finding of incompetence which is based on several grounds, it must ascertain whether the illegalities identified in the examination of certain pleas entail the annulment of the contested decision or whether the grounds which have not been disputed or the illegality of which is not established are sufficiently substantial to support the overall finding of incompetence and to constitute lawful justification for that decision, irrespective of the grounds which the Court found to be vitiated by illegality.
(
1
)	Judgment of 2 April 2020, UG v Commission (T‑571/17, not published, EU:T:2020:141).
(
2
)	Judgment of 25 November 2021, Commission v UG (C‑249/20 P, not published, EU:C:2021:964).
(
3
)	Revised Framework Agreement on parental leave concluded on 18 June 2009 by the European cross-industry social partners organisations (BUSINESSEUROPE, UEAPME, CEEP and ETUC) (‘the Framework Agreement).
(
4
)	Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC (OJ 2010 L 68, p. 13).
(
5
)	Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community – Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29).