Appeal brought on 12 June 2019 by Stephan Fleig against the judgment of the General Court (First Chamber) delivered on 2 April 2019 in Case T-492/17 Stephan Fleig v European External Action Service

(Case C-446/19 P)

(2019/C 337/03)

Language of the case: German

Parties

Appellant: Stephan Fleig (represented by: H. Tettenborn, Rechtsanwalt)

Other party to the proceedings: European External Action Service (EEAS)

Form of order sought

The appellant claims that the Court should:

— set aside in full the judgment of the General Court of the European Union (First Chamber) of 2 April 2019 in Case T-492/17;

— annul the decision of 19 September 2016 by which the Director of the ‘Human Resources’ Directorate of the European External Action Service (EEAS), acting in his capacity as the authority authorised to conclude contracts of employment, decided to terminate the appellant’s employment contract of indefinite duration with effect from 19 June 2017, and order the EEAS to pay compensation for the non-material damage caused by the unlawful termination;

— in the alternative, set aside the judgment and refer the case back to the General Court;

— order the EEAS to pay the costs in both sets of proceedings.

Grounds of appeal and main arguments

The appellant bases his appeal on the following six grounds of appeal.

First, the appellant complains of an infringement of his right to a fair hearing under the second paragraph of Article 47 of the Charter of Fundamental Rights and a breach of the principle of equality of arms. Contrary to his application, the General Court did not require the EEAS to submit relevant emails, which severely limited his capacity to defend himself.

Second, the appellant claims that the General Court erred in law in its application of the principle of the administration’s duty to have regard for the welfare of officials. The General Court failed to recognise that, prior to the termination of the appellant’s employment contract, the EEAS had already contributed to the deterioration of the appellant’s mental health through its conduct and, by doing so, to the reduction of his capacity to operate in a manner commensurate with his duties.

Third, the appellant alleges that the General Court erred in law when it assumed that it did not need to examine whether and to what extent the appellant was prevented by his state of health from complying with his duties under the Staff Regulations to disclose the place where he was staying. Further, the General Court erred in law in so far as it ignored the medical opinions submitted by the appellant, despite not having specialist knowledge itself or obtaining a medical expert’s report. In addition, the General Court erred in law in so far as it failed to find that the EEAS had taken into account the effects of the appellant’s mental illness to the detriment of the latter.

Fourth, the appellant argues that the General Court erred in law when it alleged that he had breached the duty under Article 7 of Annex II to the Staff Regulations and the fundamental duty of loyalty and cooperation in so far as he had ‘refused to nominate his doctor himself for the Invalidity Commission’. By doing so, the General Court erred in its substantiation of its judgment by making reference to a circumstance that the EEAS itself had not alleged in any way against the appellant in the statement of reasons in its decision.

Fifth, the appellant claims that the General Court was wrong to conclude from a series of unsuccessful extra-judicial applications and complaints made by the appellant that the appointing authority of the EEAS was entitled to impute to him a lack of cooperation and loyalty. From the General Court’s perspective, any application by a member of staff that is refused by the administration is ultimately to be viewed as an abuse of rights.

Sixth, the appellant alleges that the General Court committed a series of distortions of the facts on which its judgment is based, which relate, in particular, to his duty to inform the administration of the place where he was staying.