JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

8 October 2015

DD

v

European Union Agency for Fundamental Rights (FRA)

‛Civil service — FRA staff — Member of the temporary staff — Career development report — Internal appeal — Accusations of discrimination — Accusations of victimisation within the meaning of Directive 2000/43 — Administrative enquiry — Disciplinary proceedings — Disciplinary penalty — Reprimand — Articles 2, 3 and 11 of Annex IX to the Staff Regulations — Termination of a contract of indefinite duration — Article 47(c)(i) of the CEOS — Right to be heard — Article 41(2)(a) of the Charter of Fundamental Rights of the European Union’

Application:

under Article 270 TFEU, by which DD challenges the reprimand imposed on him by the Director of the European Union Agency for Fundamental Rights (FRA) and the director’s decision to terminate his contract of indefinite duration as a member of the temporary staff, and seeks an order that the FRA compensate him for the harm he claims to have incurred as a result of those acts.

Held:

The decision of 20 February 2013 by which the Director of the European Union Agency for Fundamental Rights imposed a reprimand on DD is annulled. The decision of 13 June 2013 by which the Director of the European Union Agency for Fundamental Rights terminated DD’s contract of indefinite duration as a member of the temporary staff is annulled. The actions in joined cases F‑106/13 and F‑25/14 are dismissed as to the remainder. The European Union Agency for Fundamental Rights is to bear its own costs and is ordered to pay the costs incurred by DD.

Summary

Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Decision adopted without first giving the interested party the opportunity to comment — Infringement of the right to be heard — Possibility of being remedied on an ex post basis within the framework of the complaints procedure — None

Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Decision adopted without first giving the interested party the opportunity to comment — Infringement of the right to be heard — Consequences

Officials — Disciplinary measures — Disciplinary proceedings — Observance of the rights of the defence — Initiation of disciplinary proceedings and adoption of a decision imposing a penalty at a single specific hearing — No communication beforehand of the conclusions of the preceding enquiry report which formed the basis for the decision to initiate the disciplinary proceedings and the imposition of the penalty — Infringement of the rights of the defence

Article 2(2) and Article 3 of Annex IX to the Staff Regulations oblige the Appointing Authority, where it is envisaging the initiation of disciplinary proceedings on the basis of a report drawn up following an administrative enquiry, to communicate the conclusions of the enquiry report and all the evidence in the files to the official concerned beforehand to enable him, by having a reasonable period within which to prepare his defence, to make any relevant comments. In this regard, where the appointing authority relies upon the administrative enquiry report to initiate the disciplinary proceedings and immediately adopts the reprimand decision, in the course of a single specific hearing, the fact that the conclusions of that report were verbally communicated to the official concerned during the hearing is not sufficient to comply with the provisions of the Staff Regulations, since such communication is not such as to guarantee that the official was adequately informed and enable him to exercise his right to be heard in an effective manner. Furthermore, in order to give practical effect to the right to be heard guaranteed by Article 11 of Annex IX to the Staff Regulations, the administration is required, where it envisages imposing the penalty of a written warning or reprimand, to place the official or staff member concerned in a position enabling him to prepare his defence, which means that the person concerned must be given access, in a timely manner, to all the information concerning him included in the files within the meaning of Article 3(1) of Annex IX to the Staff Regulations. Consequently, where the administration decides to initiate disciplinary proceedings and then to impose a penalty at the end of a single specific hearing, the failure to comply with the requirements laid down in Articles 2 and 3 of Annex IX to the Staff Regulations constitutes a breach of the right to be heard, as guaranteed by Article 11 of Annex IX to the Staff Regulations. Accordingly, in omitting to communicate the conclusions of an administrative enquiry to an official before his hearing, a hearing intended in fact to allow him to comment on those conclusions and at which a reprimand decision is adopted without enabling him to prepare his defence, the administration fails to comply with its obligations under Articles 2, 3 and 11 of Annex IX to the Staff Regulations. (see paras 57-60, 62, 63)

In order for the infringement of the right to be heard to justify the annulment of a decision to impose a disciplinary penalty, it is also necessary to examine whether, had it not been for such an irregularity, the outcome of the procedure might have been different. In this regard, having regard to the fundamental nature of the right to be heard, as enshrined in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, it is for the appointing authority, which adopted the decision to impose a penalty and which is therefore best informed as to the factors underlying the adoption of that decision, to prove that, even if the applicant had been properly heard, it could not have adopted a different decision. However, in circumstances where the administration has decided to initiate disciplinary proceedings and to impose a penalty at the end of a single specific hearing, without communicating the conclusions of the administrative enquiry to the official concerned, to hold that the administration would necessarily have adopted the same decision as that taken, even after hearing the person concerned on the conclusions of the administrative enquiry report and on the envisaged penalty, would render meaningless the fundamental right to be heard, since the very content of that right implies that the person concerned have the possibility of influencing the decision-making process at issue. (see paras 65, 67) See: Judgment of 3 July 2014 in Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79 Judgment of 14 May 2014 in Delcroix v EEAS, F‑11/13, EU:F:2014:91, paragraph 44

In disciplinary matters, the fact that an administrative enquiry has been conducted by an EU agency without that agency having first adopted implementing arrangements for Article 2 of Annex IX to the Staff Regulations and thereby defined the procedural framework of the enquiry is not such as to vitiate that enquiry on grounds of irregularity. Admittedly, Article 2(3) of Annex IX to the Staff Regulations requires the appointing authority of every institution to adopt implementing arrangements for that article, in accordance with Article 110 of the Staff Regulations. However, the fact that such arrangements have not been adopted does not in itself preclude the initiation and conduct of an administrative enquiry, since that enquiry must in any event be carried out in accordance with the provisions of Annex IX to the Staff Regulations and general principles of law such as respect for the rights of the defence. (see para. 75)

In relation to a decision to terminate the contract of a member of the temporary staff which is taken without the administration, beforehand, having expressly informed the interested party that it was envisaging that possibility and invited him to express any comments he might have on that matter, it cannot validly be argued that the interested party was properly heard because he was already aware of the facts of which he was accused and had been given the opportunity to make known his views effectively as to the incidents resulting in the adoption of the termination decision. The right to be heard must in fact allow the interested party not only to provide explanations as to his conduct and the reasons for it, but also to put forward arguments in relation to the measure envisaged with regard to him. In those circumstances, the onus is on the administration to prove that, even if the right to be heard had been respected, the termination decision would still have been adopted. An argument simply alleging a breakdown in the relationship of trust with the interested party in no way rules out the possibility that, had the interested party’s right to be heard not been infringed by the administration, the explanations which he might have provided could have persuaded that authority to refrain from terminating his contract. Moreover, the termination decision constitutes an act of extreme seriousness for the member of staff concerned, who suddenly finds himself to be unemployed and whose career might be negatively affected for many years. Besides the fact that it is a fundamental right of the member of staff to be heard before the adoption of an individual measure which would affect him adversely, the exercise by the latter of the right to state his views effectively on the termination decision envisaged falls within the responsibility of the authority authorised to conclude contracts of appointment, a responsibility which it must scrupulously comply with. (see paras 90, 91, 93, 95)

It cannot validly be argued the rights of defence of a member of staff which were infringed before the adoption of a decision to terminate his contract were nevertheless observed on an ex post basis on the ground that the interested party was able to submit his arguments against the termination decision in the framework of the complaints procedure under Article 90(2) of the Staff Regulations. A complaint brought under Article 90(2) of the Staff Regulations does not have the effect of suspending the execution of the contested decision so that, despite the complaint brought by the interested party against the termination decision, that decision had an immediate negative impact on the situation of the interested party, who was not in a position to influence it. Thus, it is apparent that adopting the termination decision without hearing the interested party beforehand clearly might have affected the essence of the latter’s rights of the defence. (see paras 97, 98) See: Order of 22 November 2006 in Milbert and Others v Commission, T‑434/04, EU:T:2006:359, paragraph 42