JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

29 June 2010

Case F-42/09

Anne Esneau-Kappé

v

European Police Office (Europol)

(Civil service — Europol employees — Non-renewal of a contract — Contract of indefinite duration — Article 6 of the Staff Regulations applicable to Europol employees — Principle of respect for the right to a fair hearing)

Application: brought under Article 40(3) of the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention), and Article 93(1) of the Staff Regulations applicable to Europol employees, in which Ms Esneau-Kappé seeks annulment of Europol’s decision of 12 June 2008 refusing to offer her a contract of indefinite duration, and of Europol’s decision of 7 January 2009 rejecting her complaint against the decision of 12 June 2008.

Held: The decision of 12 June 2008 by which Europol refused to offer the applicant a contract of indefinite duration is annulled. Europol is ordered to pay the costs.

Summary

1. European Union law — Principles — Right to a fair hearing

2. Officials — Europol staff — Decision affecting the administrative status of a staff member — Taking into account of factors not in his personal file — Unlawfulness

(Europol Staff Regulations, Arts 6 and 23)

3. Officials — Europol staff — Decision affecting the administrative status of a staff member — Taking into account of factors not in his personal file — Decisive influence — Annulment — Conditions

(Europol Staff Regulations, Art. 23)

1. Observance of the rights of the defence is an essential procedural requirement, breach of which may be raised by the Court of its own motion. It is also, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Union law which must be guaranteed even in the absence of any rules governing the procedure in question. The principle requires that any person who may be adversely affected by a decision must be placed in a position in which he may effectively make his views known on any matters which might be taken into account to his detriment in the measure to be taken. A corollary of the principle of respect for the rights of the defence, the right of access means that the administration must disclose to the staff member concerned all documents on which it may base its decision.

(see paras 53-54)

See:

C-291/89 Interhotel v Commission [1991] ECR I-2257, para. 14; C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paras 68 and 71; C-344/05 P Commission v De Bry [2006] ECR I-10915, paras 37 and 38; judgment of 6 December 2007 in C-59/06 P Marcuccio v Commission, not published in the ECR, para. 46

T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, para. 487

F-51/07 Bui Van v Commission [2008] ECR-SC I-A-1-289 and II-A-1-1533, para. 77, on appeal before the General Court of the European Union, Case T-491/08 P

2. For Europol staff, the purpose of Article 23 of the Europol Staff Regulations is to guarantee a staff member’s right to a fair hearing by ensuring that decisions taken by the administration affecting his administrative status and his career are not based on matters concerning his ability, efficiency or conduct which are not included in his personal file. A decision based on such factual matters is therefore contrary to the guarantees contained in those Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality.

A decision adopted at the end of a special procedure for the award of contracts of indefinite duration, laid down by the provisions of Article 6 of the Europol Staff Regulations and Article 7 of the Decision of 8 December 2006 on the implementation of Article 6 of the Staff Regulations applicable to Europol employees, may affect the administrative status of a member of Europol’s staff and therefore constitutes a decision adversely affecting him. It follows that such a decision must be adopted in accordance with the principle of observance of the right to a fair hearing.

(see paras 55-57)

See:

88/71 Brasseur v Parliament [1972] ECR 499, para. 11; 233/85 Bonino v Commission [1987] ECR 739, para. 11

T-7/01 Pyres v Commission [2003] ECR-SC I-A-37 and II-239, paras 70 and 72; T-155/03, T-157/03 and T-331/03 Cwik v Commission [2005] ECR-SC I-A-411 and II-1865, para. 50

F-38/06 Bianchi v ETF [2007] ECR-SC I-A-1-183 and II-A-1-1009, para. 48

3. Infringement of Article 23 of the Europol Staff Regulations and of the principle of the right to a fair hearing entails the annulment of a measure only if it is established that documents which were not disclosed to a staff member could have had a decisive influence on the administration’s decision relating to him.

In that respect, an appraisal form which does not merely reproduce information contained in the staff report of the person concerned, but which contains sections on his ability, efficiency and conduct as well as an assessment of the impact of the non-renewal of his contract on the proper working of Europol, is capable of having a decisive influence on that decision.

(see paras 61-65)

See:

C-294/95 P Ojha v Commission [1996] ECR I-5863, para. 67

T-246/04 and T-71/05 Wunenburger v Commission [2007] ECR-SC I-A-2-21 and II-A-2-131, para. 149