Case T‑286/15

KF

v

The European Union Satellite Centre (SatCen)

(Actions for annulment and for compensation — SatCen staff — Members of the contract staff — Jurisdiction of the EU judicature — Common foreign and security policy — Article 24 TEU — Articles 263, 268, 270 and 275 TFEU — Article 47 of the Charter of Fundamental Rights — Equal treatment — Decisions 2014/401/CFSP and 2009/747/CFSP — SatCen’s Appeals Board — Plea of illegality — Request for assistance — Manner in which the administrative investigation was carried out — Suspension — Disciplinary proceedings — Removal — Principle of sound administration — Requirement of impartiality — Right to be heard — Access to the file — Non-contractual liability — Premature claim for damages — Non-material damage)

Summary — Judgment of the General Court (Ninth Chamber, Extended Composition), 25 October 2018

EU agencies — European Union Satellite Centre (SatCen) — Staff Regulations — Appeals procedure — Action before the EU judicature — Actions for damages — Annulment of the unlawful act not capable of ensuring adequate compensation for the non-material damage sustained — Suspension decision and removal decision of a staff member following an administrative investigation vitiated by irregularities

EU agencies — European Union Satellite Centre (SatCen) — Staff Regulations — Disciplinary measures — Suspension of a staff member — Obligation that the person concerned be heard beforehand — Scope — Adoption of the suspension decision without communicating to the staff member concerned the evidence forming the basis of the conclusions of an enquiry relating to his conduct — Not permissible

EU agencies — European Union Satellite Centre (SatCen) — Staff Regulations — Disciplinary measures — Enquiry preceding the initiation of disciplinary proceedings — Duty of confidentiality of the administration — Limits — Obligation to maintain that duty after the investigation is closed in order to prevent access to the file by the staff member who was the subject of the investigation — No such obligation

EU agencies — European Union Satellite Centre (SatCen) — Staff Regulations — Disciplinary measures — Enquiry preceding the initiation of disciplinary proceedings — Purpose — Investigation relating to alleged psychological harassment — Dispatch by the investigator of a questionnaire to the complainants requesting that they identify the categories of conduct observed engaged in relation to the staff member to which the investigation relates — Not permissible

Fundamental rights — Charter of Fundamental Rights of the European Union — Right to sound administration — Right to be heard and to have access to the case-file

Actions for annulment — Contested act — Assessment of legality in the light of the information available at the time of adoption of the measure — Action calling into question a decision adopted on the basis of a provision subsequently annulled by the EU judicature — Rejection — Infringement of the right to effective legal protection — No such infringement

Plea of illegality — Scope — Measures the illegality of which may be pleaded — General measure providing the basis of the contested decision — Need for a legal connection between the contested measure and the contested general measure — Effect of illegality of a measure of general scope

EU agencies — European Union Satellite Centre (SatCen) — Staff Regulations — Appeals procedure — Possibility for the Council to exclude the jurisdiction of the General Court to rule on disputes between SatCen and its staff members — No such possibility

Common foreign and security policy — Jurisdiction of the EU judicature — Acts adopted by the European Union Satellite Centre having the effect of terminating the contract of one of its staff members — Included

The EU judicature has jurisdiction to rule on a dispute between the European Union Satellite Centre (SatCen) and a former member of the contract staff in the context of which the latter seeks the annulment of several decisions taken against her, including in particular a suspension decision, a decision to initiate disciplinary proceedings and a removal decision, as well as compensation. That jurisdiction stems, respectively, as regards the review of the legality of the contested decisions, from Article 263 TFEU and, as regards claims for the non-contractual liability of the European Union to be incurred, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union. The fact that the contested decisions fall within the framework of the functioning of a body operating in the field of the common foreign and security policy (CFSP) cannot, in itself, mean that the EU judicature lacks jurisdiction to rule on the dispute. In that regard, the final sentence of the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU introduce a derogation from the rule of the general jurisdiction which Article 19 TEU confers on the Court of Justice of the European Union to ensure that in the interpretation of the Treaties the law is observed, and they must, therefore, be interpreted narrowly. Similarly, while Article 47 of the Charter cannot confer jurisdiction on the Court of Justice of the European Union, where the Treaties exclude it, the principle of effective judicial protection nonetheless implies that the exclusion of the EU judicature’s jurisdiction in the field of the CFSP should be interpreted narrowly. Moreover, the suspension decision, the decision to initiate disciplinary proceedings and the removal decision mentioned above constitute purely acts of staff management which, in the light of their grounds and objectives, and of the context in which they were adopted, were not intended to support the conduct, definition or implementation of the CFSP within the meaning of Article 24(2) TEU, or, more specifically, to fulfil the missions of SatCen falling within the CFSP. In that context, Decision 2009/747 concerning the SatCen Staff Regulations, provides, in Chapter VII thereof and in Annex IX thereto, for a disciplinary regime similar to that laid down in Title VI of, and in Annex IX to, the Staff Regulations. It must therefore be considered that the dispute is comparable to disputes between an institution, body, office or agency of the European Union which are not covered by the CFSP and one of its officials or other servants, which may be brought before the EU judicature under Article 270 TFEU. The exception to the jurisdiction of the Court of Justice of the European Union in the field of the CFSP cannot be considered to be so extensive as to exclude the jurisdiction of the EU judicature to review the legality of contested decisions which fall within the scope of an EU body, whereas the EU judicature has jurisdiction to review the legality of acts which are identical in terms of their content, of the objectives that they pursue, of the procedure leading to their adoption and of the context surrounding that adoption, where such acts concern an institution, body or agency of the European Union whose tasks are unrelated to the CFSP. Any other interpretation would amount to excluding the staff members of an EU body covered by the CFSP from the system of judicial protection offered to EU staff members, in breach of the principle of equal treatment. (see paras 83-85, 91, 93, 95-97, 99)

According to the fifth paragraph of Article 263 TFEU, acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them. As regards Decision 2009/747 concerning the Staff Regulations of the European Union Satellite Centre (SatCen), that provision cannot be interpreted as meaning that it grants the Council, in that decision, the right to shield from any judicial review by the EU judicature acts adopted by the Director of SatCen and which are intended to produce legal effects in the context of its internal operations, by conferring on the Appeals Board exclusive jurisdiction to give a decision from which no appeal lies on disputes between SatCen and its staff, as is stated in Article 28(6) of the SatCen Staff Regulations. To allow such an interpretation would undermine the jurisdiction of the EU judicature to ensure that in the interpretation and application of the Treaties the law is observed, as required by the second sentence of the first paragraph of Article 19(1) TEU. The ‘specific conditions and arrangements’ in the fifth paragraph of Article 263 TFEU must be interpreted as meaning that they refer to the drawing up, by a body, office or agency of the European Union, of purely internal terms and conditions which are prerequisites to legal proceedings, which govern, inter alia, the operation of a self-monitoring mechanism or the course of an out-of-court settlement with a view to avoiding litigation before the EU Courts. It follows that Article 28(6) of the SatCen Staff Regulations is incompatible with the Treaties and, in particular, with Article 19 TEU and Article 256 TFEU, inasmuch as it provides that the Appeals Board has authority, obligatorily and exclusively, to settle disputes between SatCen and its staff members, even though the General Court has jurisdiction at first instance over that type of action. (see paras 106, 107, 109)

See the text of the decision. (see para. 115)

Article 270 TFEU is not applicable to disputes between the European Union Satellite Centre (SatCen) and its staff members. In the words of that provision, the Court of Justice of the European Union has jurisdiction in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations and the Conditions of Employment of Other Servants of the European Union. In that regard, it is apparent from reading Article 1 and Article 1a(2) of the Staff Regulations, in conjunction with Article 3a(1)(b) of the Conditions of Employment of Other Servants, that those rules apply to the contract staff of an EU office, body or agency only if the act setting up that office, body or agency so provides. However, in the case of SatCen contract staff, neither Decision 2014/401 on SatCen nor Decision 2009/747 concerning the Staff Regulations of SatCen provides that the Staff Regulations and the Conditions of Employment of Other Servants are applicable. It follows that an action for annulment of a SatCen staff member falls within the scope of Article 263 TFEU, and a SatCen staff member’s claim that the Union’s non-contractual liability should be incurred falls within that of Article 268 TFEU. (see paras 122, 123)

See the text of the decision. (see para. 125)

See the text of the decision. (see paras 141, 143)

See the text of the decision. (see paras 155-157)

See the text of the decision. (see paras 164-166)

See the text of the decision. (see para. 173)

See the text of the decision. (see para. 175)

See the text of the decision. (see para. 176)

See the text of the decision. (see para. 177)

An administrative investigation following allegations of failure to comply with professional obligations as regards a staff member of the European Union Satellite Centre (SatCen) is intended to establish the accuracy of the facts alleged against that staff member and must, therefore, consist in a careful and impartial search of all the precise and relevant evidence relating to the case in point. In that regard, in the event that a complaint is referred to the Director of SatCen calling into question a staff member’s overall attitude, by classifying it as harassment, it is for the investigator to request the complainants to substantiate the facts alleged, and to assess the detailed and consistent nature thereof before, if necessary, classifying them legally. Accordingly, where the investigator sends the complainants a bullying questionnaire, containing multiple choice entries corresponding, in essence, to general categories of conduct liable to constitute psychological harassment, such an initiative is intended not to seek to establish the accuracy of precise facts alleged, but to ask the addressees of the questionnaire to convey their feelings, in a general and abstract manner, on categories of behaviour that they considered they had observed by the staff member to whom the investigation relates. It is true that SatCen has a broad discretion regarding even whether to initiate an investigation and concerning how to carry it out in practical terms. However, by sending to persons working on a daily basis with the staff member concerned a multiple-choice questionnaire, relating to that staff member and referring to the latter by name, SatCen fails to act with the prudence and care necessary in a dispute between an EU body and one of its staff members. (see paras 198-201)

The administration is required, in the context of an internal administrative investigation carried out following a complaint, to balance two rights which may be inconsistent, namely the right of the person who is the subject of the complaint to exercise his rights of defence and the right of the complainant to have his complaint examined properly, this right of the complainant being reflected in a duty of confidentiality imposed on the administration, pursuant to which it is required to refrain from taking any step likely to jeopardise the results of the investigation. However, such a balancing of inconsistent rights was not carried out where the results of the administrative investigation have already been obtained, so that the proper conduct of that investigation could not be jeopardised by disclosure of the witness statements to the person who is the subject of the complaint. (see paras 221, 222)

See the text of the decision. (see paras 225, 229, 230)

The decision suspending a staff member of the European Union Satellite Centre (SatCen), based on Article 18 of Annex IX to Decision 2009/747 concerning the SatCen Staff Regulations, which is taken when an allegation of serious misconduct has been made, constitutes an individual measure having an adverse effect which must, therefore, be adopted in compliance with the rights of the defence, in particular the right to be heard. Consequently, unless special circumstances are duly established, a decision to suspend may be adopted only after the staff member concerned has been put in a position effectively to make known his views on the evidence relied on against him and on which the competent authority proposes to base that decision. In that regard, it is apparent from the provisions of Article 41(2)(b) of the Charter of Fundamental Rights of the European Union that every person has a right to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy. It follows from this that a SatCen staff member has a right of access to information held by his employer that might enable him to understand the substance of the allegations justifying the suspension, so that he can demonstrate, inter alia, that the conduct referred to does not fall within the scope of his responsibility, that it is not sufficiently serious to justify a suspension decision, that it is not sufficiently probable or that the allegations are manifestly unfounded, so that the suspension of the member of staff in question is unlawful. Moreover, in order to ensure that the right to be heard, guaranteed by Article 41(2)(a) of the Charter, is observed, it is also necessary that the administration informs the staff member concerned, in sufficient detail, at the stage when that person is called upon to submit his observations, what action that administration may take on the basis of the information in question. In that context, the non-disclosure to the staff member concerned of the relevant information cannot be justified by the need to protect the effectiveness of the administrative investigation relating to the offences alleged against that staff member, in so far as, at the time of the adoption of the suspension decision, the investigations had been completed and the investigation report had been handed over to the Director of SatCen. (see paras 235-237)

Where the Union acts as an employer, it is subject to increased liability, manifested in the obligation to make good damage caused to its staff by any illegality committed in its capacity as employer. Unlike any other individual, an official or other member of EU staff is connected to the institution, body or agency to which he belongs by a legal relationship of employment involving a balance of specific reciprocal rights and obligations, essentially intended to preserve the relationship of trust which must exist between the administration and its officials and other members of staff in order to guarantee to the public that tasks in the public interest entrusted to the EU institutions, bodies and agencies are performed effectively. Although those principles have been developed in the context of actions brought on the basis of Article 270 TFEU and of Articles 90 and 91 of the Staff Regulations, it is appropriate to apply those principles, mutatis mutandis, in disputes between the European Satellite Centre and its staff. (see paras 245, 246)

See the text of the decision. (see paras 250-254)

See the text of the decision. (see paras 256, 258, 259, 261)