JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

5 February 2016

GV

v

European External Action Service (EEAS)

‛Civil service — EEAS staff — Member of the contract staff — Contract for an indefinite period — Article 47(c) of the Conditions of Employment of Other Servants — Grounds for dismissal — Breakdown in the relationship of trust — Right to be heard — Article 41 of the Charter of Fundamental Rights of the European Union — Principle of sound administration — Material harm — Non-material harm’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which GV seeks, essentially, annulment of the decision of 29 January 2014 by which the director of the Human Resources directorate of the European External Action Service (EEAS), acting as the authority empowered to conclude contracts of employment, decided to terminate the applicant’s contract of employment with effect from 31 August 2014.

Held:

The decision of 29 January 2014, by which the director of the Human Resources directorate of the European External Action Service, acting as the authority empowered to conclude contracts of employment, decided to terminate GV’s contract of employment with effect from 31 August 2014, is annulled. The European External Action Service is ordered to pay GV, as compensation for the non-material harm suffered by him, the sum of EUR 5000. The action is dismissed as to the remainder. The European External Action Service shall bear its own costs and is ordered to pay the costs incurred by GV.

Summary

Actions brought by officials — Actions for damages — Annulment of the illegal act in dispute — Non-material harm capable of being separated from the illegality and incapable of being fully compensated for by the annulment

Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Scope — Both the operative part and the grounds of the judgment to be taken into account — Judgment annulling a decision to dismiss a member of the contract staff — Claim by the applicant for compensation in respect of the material harm suffered — Premature nature of the claim

Officials — Members of the contract staff — Dismissal — Decision adopted without giving the person concerned a prior opportunity to make observations — Infringement of the right to be heard

Actions brought by officials — Pleas in law — Plea based on infringement of the right to be heard not raised in the application — Breach of an essential procedural requirement capable of being raised by the Tribunal of its own motion

The observation of the rights of the defence in staff cases and, more specifically, the right of a member of the contract staff to be heard in relation to matters which might be relied on to his detriment as the basis of a decision adversely affecting him, constitutes an essential procedural requirement breach of which may be raised by the court of its own motion. In this regard, even if the applicant has put forward a new plea, by comparison with those initially set out in his application, based on breach of the right to be heard provided for by Article 41 of the Charter of Fundamental Rights of the European Union, that plea is admissible, even if it was ultimately prompted by the tenor of the questions to which the Civil Service Tribunal required written responses by way of measures of organisation of procedure. (see para. 67) See: Judgments of 12 December 2012 in Cerafogli v ECB, F‑43/10, EU:F:2012:184, para. 89, not set aside on this point by the judgment of 23 September 2015 in Cerafogli v ECB, T‑114/13 P, EU:T:2015:678, and 25 June 2015 in EE v Commission, F‑55/14, EU:F:2015:66, para. 35

The rights of the defence, as now enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, which is of general application, include, while being more extensive, the procedural right provided for in paragraph 2(a) of that article, of every person to be heard, before any individual measure which would affect him adversely is taken. A decision to dismiss, which is one of the administrative measures liable to affect a member of staff most severely, can only be taken after the applicant has been given an effective opportunity to put forward his view regarding the proposed decision to dismiss in the context of an oral and/or written exchange of views initiated by the authority empowered to conclude contracts of employment, proof of which must be adduced by the latter. Since the authority empowered to conclude contracts of employment has no difficulty in notifying a decision to dismiss to the person concerned, it is relatively easy for it to perform its obligations deriving from the principle of sound administration by informing that person, in writing, of the grounds on which it intends to dismiss him and by giving him the opportunity to adopt a position in this regard, within a reasonable time, in writing and/or orally. (see paras 71, 72, 74) See: Judgments of 11 September 2013 in L v Parliament, T‑317/10 P, EU:T:2013:413, para. 81, and 3 June 2015 in BP v FRA, T‑658/13 P, EU:T:2015:356, para. 56 Judgments of 10 September 2014 in Tzikas v ERA,F‑120/13, EU:F:2014:197, para. 61, and the case-law cited therein, and 25 June 2015 in EE v Commission, F‑55/14, EU:F:2015:66, para. 37 and the case-law cited therein

Under Article 51(1) of the Charter of Fundamental Rights of the European Union, the provisions of the Charter are addressed directly to the institutions, bodies, offices or agencies of the Union, such that none of those entities can rely on internal circumstances specific to their administration, such as difficulties in their decision-making process, including difficulties connected with resistance on the part of certain departments, to justify a failure to observe obligations arising from norms of primary EU law, particularly as the requirements arising from Article 41(2)(a) of the Charter of Fundamental Rights do not present any particular difficulty, in terms of implementation, for a diligent administration, and, furthermore, as hearing the person concerned is a minimal safeguard where the administration is acting in an area where it has a broad discretion. In this regard, it is not inconceivable that the decision of the authority empowered to conclude contracts of employment to dismiss a member of the contract staff might be different if that person is given an effective opportunity to put forward his view. Thus, while it is admittedly possible that the authority empowered to conclude contracts of employment might ultimately, after hearing the person concerned, adopt a decision identical to the contested decision, to accept such an argument on the part of an institution, consisting of speculation as to its future administrative conduct, would be to render meaningless the fundamental right to be heard enshrined in Article 41(2) of the Charter, since the very content of that right entails that the person concerned has had an opportunity to influence the decision-making process at issue, here at the time of adoption of the initial decision (that is, the contested decision) and not only when a complaint is made under Article 90(2) of the Staff Regulations. (see paras 77-79) See: Judgment of 4 March 2010 in Commission v Italy, C‑297/08, EU:C:2010:115, para. 83 and the case-law cited therein Judgment of 14 September 2011 in Marcuccio v Commission, T‑236/02, EU:T:2011:465, para. 115 Judgments of 14 May 2014 in Delcroix v EEAS, F‑11/13, EU:F:2014:91, para. 44; 25 June 2015 in EE v Commission, F‑55/14, EU:F:2015:66, para. 40, and 8 October 2015 in DD v FRA, F‑106/13 and F‑25/14, EU:F:2015:118, paras 97 and 98, subject to an appeal before the General Court in Case T‑742/15 P

It is for the institution whose act has been annulled by the Courts of the Union to determine, pursuant to Article 266 TFEU, what measures are necessary to comply with the annulling judgment, in the exercise of the discretion which it enjoys in that regard, complying with both the operative part and grounds of the judgment it is required to give effect to as well as the applicable provisions of EU law. Furthermore, the annulment of a measure by the Courts of the Union has the effect of retroactively eliminating that measure from the legal system, and where the measure annulled has already been carried out, the abolition of its effects means that the applicant must be restored to the legal position he was in before it was adopted. It is not for the Civil Service Tribunal to anticipate what action the parties will take in response to a judgment annulling a decision to dismiss, or in particular how the institution will satisfy its obligation under Article 266 TFEU to take the necessary measures to comply with the judgment. In any event, the Civil Service Tribunal cannot exercise its unlimited jurisdiction in matters of a financial character where the interest of the service or of third parties does not present any obstacle to the annulment of the contested decision and the applicant has not stated that he cannot benefit from the performance of the obligations arising from that annulment. Nor is it, moreover, inconceivable that, following the annulment of the contested decision, the authority empowered to conclude contracts of employment will decide to enter into a dialogue with the applicant with a view to reaching an overall agreement terminating his employment and simultaneously providing fair compensation for the unlawful conduct which he has suffered, possibly drawing on the negotiations and concessions already made during an attempt to reach an amicable settlement on the initiative of the Civil Service Tribunal. Having regard to the foregoing considerations, the Civil Service Tribunal cannot, at the present stage and in the context of an action for annulment, order the institution to compensate the applicant for loss of remuneration consequent on the unlawful and allegedly premature termination of his contract as a member of the contract staff. (see paras 89, 90, 92-94) See: Judgment of 9 August 1994 in Parliament v Meskens, C‑412/92 P, EU:C:1994:308, paras 28 and 30 Judgment of 8 October 1992 in Meskens v Parliament, T‑84/91, EU:T:1992:103, para. 80 Judgment of 16 September 2015 in EMA v Drakeford, T‑231/14 P, EU:T:2015:639, para. 52 Judgments of 26 June 2013, BU v EMA, F‑135/11, F‑51/12 and F‑110/12, EU:F:2013:93, para. 66, and 6 October 2015 in CH v Parliament, F‑132/14, EU:F:2015:115, paras 60, 61 and 82 and the case-law cited therein