Provisional text

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

5 October 2022 ( )

(Civil service – Members of the temporary staff – Sick leave – Unjustified absences – Termination of the contract without notice – Article 16 of the CEOS – Article 48(b) of the CEOS – Liability)

In Case T‑618/21,

WV, represented by L. Levi and A. Champetier, lawyers,

applicant,

v

Translation Centre for the Bodies of the European Union (CdT), represented by M. Garnier, acting as Agent, and B. Wägenbaur, lawyer,

defendant,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, L. Truchot (Rapporteur) and M. Sampol Pucurull, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written procedure,

further to the hearing on 7 July 2022,

gives the following

Judgment

1 By his action under Article 270 TFEU, the applicant, WV, seeks, first, the annulment of the decision of the Director of the Translation Centre for the Bodies of the European Union (CdT) of 26 November 2020 terminating his employment of indefinite duration (‘the contested decision’) and, in so far as is necessary, the decision of 17 June 2021 rejecting his complaint (‘the decision rejecting the complaint’) and, secondly, compensation for the harm which he has suffered as a result of those decisions.

Background to the dispute

2 The applicant was recruited by the CdT on 1 November 1997. On 16 December 2004, he signed a contract of indefinite duration. From 23 July to 15 November 2019, the applicant was put on paid sick leave. His absence from 18 November 2019 to 7 February 2020 was regarded by the CdT as unjustified. His absences from 8 February to 10 April 2020 and from 29 April to 4 May 2020 were, however, accepted by the CdT as justified. From 5 May 2020 onwards, his absences were regarded as unjustified.

3 After a telephone consultation, on 4 May 2020, between the applicant and the medical service of the European Commission, acting on behalf of the CdT, the medical service concluded that the applicant was fit to resume his duties, part time, for one month commencing on 5 May 2020. The medical service informed the applicant that he could make a request for arbitration. The following day, the applicant made such a request, pursuant to the fifth subparagraph of Article 59(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

4 Noting that the applicant had failed to attend the various meetings organised for the purposes of the arbitration, the independent doctor confirmed the decision of the Commission’s medical service. The CdT consequently took the view that the applicant’s absence during the period beginning on 5 May 2020 was unjustified. The applicant was informed of that by letter of the Director of the CdT of 31 July 2020.

5 By letter of 10 August 2020, the applicant’s lawyer requested that he be admitted to the invalidity scheme. She stated that, given the applicant’s state of health, a return to normal was not expected in the near future.

6 By letter of 14 September 2020, the Director of the CdT refused the request for the applicant to be admitted to the invalidity scheme. The applicant was also informed that, in view, in particular, of his unjustified absence since 5 May 2020, his statement that he was not well enough to resume his duties, his failure to answer the three letters which the CdT had sent between 7 May and 7 August 2020, and the interests of the service, the CdT was proposing to apply Article 48(b) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) in order to terminate his employment. The CdT invited him to submit any observations he might have.

7 By letter of 14 October 2020, the applicant’s lawyer, referring to the CdT Director’s letter of 14 September 2020, conveyed to the CdT the applicant’s observations regarding the possible application of Article 48(b) of the CEOS.

8 On 26 November 2020, on the basis of Article 48(b) of the CEOS, the contested decision was adopted, terminating the applicant’s employment without notice, with effect from 31 December 2020.

9 On 26 February 2021, the applicant brought a complaint against the contested decision.

10 On 17 June 2021, the Director of the CdT rejected that complaint.

Forms of order sought

11 The applicant claims that the General Court should:

– annul the contested decision;

– annul, in so far as is necessary, the decision rejecting the complaint;

– order the CdT to compensate the material loss sustained and to pay the sum of EUR 15 000 in damages for the non-material harm sustained;

– order the CdT to pay the costs.

12 The CdT contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

13 The applicant has submitted claims for annulment and for compensation.

The claim for annulment

14 The applicant seeks the annulment of the contested decision and, in so far as is necessary, of the decision rejecting the complaint.

15 As a preliminary point, with respect to the applicant’s request for the annulment, in so far as is necessary, of the decision rejecting the complaint, it must be observed that, according to settled case-law, a claim for annulment formally directed against a 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 (see judgment of 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 35 and the case-law cited).

16 In the present case, since the decision rejecting the complaint merely confirms the contested decision, by which the applicant’s employment was terminated without notice, the claim for annulment of the decision rejecting the complaint lacks any independent content. It is therefore not necessary 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 supposed to coincide with the statement of reasons in the contested decision (see, to that effect, the judgment of 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 36 and the case-law cited).

17 In support of his claim for annulment, the applicant puts forward three pleas in law. The first alleges that the legal basis taken for the decision terminating his employment was incorrect. The second is based on the CdT’s failure to refer the matter to the Invalidity Committee, its termination of the applicant’s employment without weighing up all the relevant factors and circumstances and the applicant’s own interests, and contradictory reasoning. The third alleges infringement of the right to be heard.

18 In the context of his first plea, the applicant argues that Article 48(b) of the CEOS cannot serve as the basis for the decision terminating his employment because, on the date on which the contested decision was adopted, he was not on paid sick leave, but, according to the CdT, absent without justification, such that, on the date of termination of his employment, he was not at the end of a period of paid sick leave as provided for in Article 16 of the CEOS, to which Article 48(b) of the CEOS refers.

19 Moreover, even supposing that, on the date of termination of his employment, the applicant had been on paid sick leave as provided for by Article 16 of the CEOS, the conditions laid down in that provision and in Article 48(b) of the CEOS were not fulfilled. Indeed, since the applicant had worked at the CdT for 22 years, the length of his paid sick leave should have corresponded to his length of service, without it being possible for his employment to be terminated, pursuant to Article 48(b) of the CEOS, before the end of that period.

20 Lastly, the applicant adds that, if the CdT had wished to penalise him, it should have commenced disciplinary proceedings against him, rather than apply Article 16 and Article 48(b) of the CEOS.

21 The CdT states that it considered the applicant’s absence to be unjustified from 5 May 2020 onwards and that the applicant has continually maintained that his state of health did not permit him to resume his duties.

22 According to the CdT, the applicant had exhausted his entitlement to sick leave as a result of the fact that, as is clear from Article 59 of the Staff Regulations, to which Article 16 of the CEOS refers, only periods of justified absence confer entitlement to such leave. Accordingly, the applicant was at the end of the period for paid sick leave.

23 Notwithstanding the expiry of the period of entitlement to sick leave provided for in Article 16 of the CEOS, the applicant had himself exhausted, as a result of his own conduct, his entitlement under that provision, since his absence was no longer justified. Consequently, the applicant cannot claim that his entitlement should have expired at the end of a period of 22 years, equating to his length of service, even though his absence no longer conferred entitlement to sick leave.

24 The CdT also argues that, in so far as the applicant was at the end of a period of paid sick leave, which reflects a condition of expiry of entitlement, the application of Article 48(b) of the CEOS could not be ruled out on account of the fact that, at the time when the contested decision was adopted, he was not on paid sick leave. Furthermore, the long lapse of time between the beginning of the applicant’s unjustified absence on 5 May 2020 and the adoption of the contested decision was justified, according to the CdT, by the various stages of the arbitration procedure and by the CdT’s wish to allow the applicant more time in which to submit his observations.

25 Lastly, the CdT notes that, in accordance with its duty to have regard for the welfare of staff members, it informed the applicant on a number of occasions of its wish to put in place measures compatible with both his well-being and the interests of the service. The CdT’s efforts, however, elicited no response from the applicant, who thus failed in his duty to cooperate with the CdT.

26 With regard to this plea, it is necessary to determine whether, in the particular circumstances of the case, the CdT was entitled to base the contested decision on Article 48(b) of the CEOS and so terminate the applicant’s employment.

27 According to the wording of Article 48(b) of the CEOS, ‘employment, whether for a fixed or for an indefinite period, may be terminated by the institution without notice: … 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 [of the CEOS]’.

28 The second paragraph of Article 16 of the CEOS provides that ‘ … 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[; t]he leave shall not extend beyond the term of his contract’.

29 Thus, it is clear from the second paragraph of Article 16 and from Article 48(b) of the CEOS that the employment of a servant may be terminated when two conditions are present, namely expiry of the period for paid sick leave and the inability of the servant to resume his or her duties at the end of that period (judgment of 11 June 2019, TO v EEA, T‑462/17, not published, EU:T:2019:397, paragraph 56).

30 As regards the first condition, expiry of the period for paid sick leave, it must be recalled that the paid sick leave mentioned in Article 48(b) of the CEOS, at the end of which is to be assessed the servant’s ability to resume his or her duties, absent which his or her employment may be terminated without notice, is that provided for in the second paragraph of Article 16 of the CEOS.

31 It is clear from a combined reading of Article 48(b) of the CEOS and the second paragraph of Article 16 of the CEOS that a servant’s employment may be terminated without notice at the end of his or her paid sick leave if that leave is either longer than three months or longer than the length of time worked by the member of staff in question, where the latter is longer.

32 Therefore, in order to terminate the applicant’s employment on the basis of Article 48(b) of the CEOS, the CdT was required to verify that that condition was met.

33 However, in the contested decision, as supplemented by the decision rejecting the complaint, the CdT, after noting that the applicant had not been able to resume his duties at the end of his paid sick leave, found that the applicant had exhausted his entitlement to paid sick leave arising under Article 16 of the CEOS, by reason of the fact that only periods of justified absence conferred entitlement to such leave, as is clear from Article 59 of the Staff Regulations, to which Article 16 of the CEOS referred, whereas the applicant’s absence was no longer justified. The CdT inferred therefrom that the applicant’s conduct had brought about an ‘a fortiori expiry of entitlement’. The CdT added that, in the circumstances, the applicant could not claim that entitlement should have expired at the end of a period equating to his length of service, which is to say 22 years, when in fact his absence no longer conferred entitlement to sick leave.

34 It is apparent from the contested decision, read in the light of the additional details provided in the decision rejecting the complaint, that the CdT took the view that the lack of justification for the applicant’s absences at the time of the decision to terminate his employment enabled it to proceed with that termination on the ground that those unjustified absences, by having exhausted the applicant’s entitlement to paid sick leave, had brought about the expiry of that entitlement. It therefore appears that the CdT considered that the applicant’s unjustified absences, by terminating his entitlement to paid sick leave, relieved it of the obligation to verify the fulfilment of the condition relating to the expiry of the period for paid sick leave to which the applicant was entitled.

35 However, it must be observed that Article 48(b) of the CEOS, on which the contested decision is based, refers to the second paragraph of Article 16 of the CEOS, which lays down the latter condition, and it must be held that neither of those provisions states that a decision to terminate employment without notice may be adopted without first verifying the expiry of the period for paid sick leave to which the staff member concerned is entitled in accordance with the rules in the second paragraph of Article 16 of the CEOS. Moreover, neither of those provisions, nor Article 59 of the Staff Regulations, which sets out the legal regime applicable to sick leave and unjustified absences, suggests that verification of the condition relating to the expiry of the period for paid sick leave provided for by the second paragraph of Article 16 of the CEOS might be replaced, in cases of unjustified absence on the date of the contested termination or prior to that date, by the formal taking of note of such absences. Consequently, in the contested decision, the CdT applied a condition relating to unjustified absence which is not contemplated by Article 48(b) and the second paragraph of Article 16 of the CEOS.

36 It follows that the CdT terminated the applicant’s employment for an indefinite duration without having verified that the first condition laid down by those provisions was fulfilled.

37 As regards the second condition, relating to the servant’s inability to resume his duties at the end of the period for paid sick leave, it must be observed that the letter of 10 August 2020 sent by the applicant’s lawyer to the CdT stated that ‘the practitioners consulted [by the applicant] – both his general practitioner and his psychiatrist – [did] not expect a return to normal in the near future’. In the same letter, the applicant’s lawyer asked that he be admitted to the invalidity scheme.

38 It may be added that the letter which the applicant’s lawyer sent to the CdT on 14 October 2020 stated that the specialist whom the applicant had consulted had ‘also confirmed in various certificates that [the applicant’s] state of health did not permit him to resume his duties’.

39 It is apparent from those letters that the applicant acknowledged that he was not able to resume his duties, which indeed the CdT took into account in the contested decision, referring to the content of those letters in that decision.

40 However, since the date on which that inability to resume duties ought to have been established is, according to Article 48(b) of the CEOS, after the expiry of the period for paid sick leave, which, as was noted in paragraph 36 above, the CdT had not evaluated, the second condition cannot be regarded as fulfilled.

41 Therefore, it must be held that, by adopting the contested decision, the CdT infringed Article 48(b) and the second paragraph of Article 16 of the CEOS.

42 It follows from the foregoing that the first plea in law must be upheld. Consequently, the contested decision must be annulled, without it being necessary to examine the second and third pleas in law.

The claim for compensation

43 The application claims compensation for the material loss and non-material harm he alleges he has sustained.

44 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 this field, 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 alleged 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 judgment of 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 97 and the case-law cited).

45 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 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 98 and the case-law cited).

46 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 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 99 and the case-law cited).

47 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 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 100 and the case-law cited).

48 It is in the light of those considerations that the Court must examine the applicant’s complaints in support of his claim for compensation.

The material loss

49 By his claim for compensation, the applicant requests that he be paid his salary from the date on which the termination of his employment took effect, 31 December 2020, to the date of annulment of the contested decision.

50 He adds that he does not seek to resume his duties, given his state of health, but requests that an invalidity procedure be initiated.

51 The CdT argues, first, that the conditions governing the establishment of the European Union’s liability are not met and, secondly, that the request for the initiation of an invalidity procedure amounts to asking the Court to issue an instruction to it, which the Court cannot do.

52 As regards the requirement that there must be actual damage, it is necessary to determine whether, by unlawfully terminating the applicant’s employment, the CdT caused the applicant a loss of earnings corresponding to the amount of salary he alleges he has been deprived of since 31 December 2020, the date on which the termination of his employment took effect.

53 On this point, it must be noted that the applicant was, from 5 May 2020 onwards, absent without justification. That he does not dispute. Since that date, he has therefore not been receiving any remuneration. It follows that the reality of the loss which the applicant alleges is not established.

54 Consequently, since his unjustified absence caused him to lose the benefit of his salary from 5 May 2020 onwards, the claim for compensation for the material loss which the applicant alleges he has sustained since 31 December 2020, the date on which the termination of his employment took effect, must be dismissed.

55 As regards the request that an invalidity procedure be commenced, it must be observed that the applicant’s request amounts to asking the Court to issue directions to the CdT. However, it is settled case-law that, regarding judicial review, the Court does not have jurisdiction to issue directions to the administration (see judgment of 2 February 2022, LU v EIB, T‑536/20, not published, EU:T:2022:40, paragraph 30 and the case-law cited).

56 That request must therefore be rejected.

The non-material harm

57 The applicant claims compensation for the non-material harm which resulted from the fact that his employment was terminated by the contested decision, without an invalidity procedure being initiated. He assesses that harm at EUR 15 000. He maintains that, by adopting the contested decision, the CdT, which was aware of his state of health, aggravated his depression and anxiety.

58 The CdT disputes those arguments.

59 It should be borne in mind in that regard 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 cannot be compensated in full by that annulment (see judgment of 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 130 and the case-law cited).

60 In this case, the applicant has not shown that the alleged non-material harm cannot be compensated in full by the annulment of the contested decision from which it arose. Therefore, it must be held that the non-material harm caused by the contested decision is compensated appropriately by the annulment of that decision.

61 The claim for compensation for the non-material harm alleged must therefore be dismissed, without it being necessary to consider the causal nexus between the illegality and the harm.

62 In light of all the foregoing considerations, the contested decision must be annulled and the remainder of the action dismissed.

Costs

63 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings.

64 Since the CdT has been 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 (Seventh Chamber)

hereby:

1. Annuls the decision of 26 November 2020 by which the Director of the Translation Centre for the Bodies of the European Union (CdT) terminated WV’s employment as a member of the temporary staff;

2. Dismisses the action as to the remainder;

3. Orders the CdT to pay the costs.

da Silva Passos Truchot Sampol Pucurull

Delivered in open court in Luxembourg on 5 October 2022.

[Signatures]