JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

14 November 2013

European Police Office (Europol)

v

Andreas Kalmár

‛Appeal — Civil service — Europol staff — Fixed-term contract — Dismissal — Obligation to state reasons — Rights of the defence — Financial compensation’

Appeal:

against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 26 May 2011 in Case F‑83/09 Kalmár v Europol [2011] ECR-SC, seeking to have that judgment set aside in part.

Held:

The appeal is dismissed. The European Police Office (Europol) is to bear its own costs and is ordered to pay those incurred by Mr Andreas Kalmár in the present proceedings.

Summary

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1); Rules of Procedure of the General Court, Art. 138(1), first para, (c))

Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissibility — Review by the General Court of the assessment of the facts — Possible only where the clear sense of the evidence has been distorted

Appeals — Pleas in law — Infringement of the prohibition on ruling ultra petita — Reclassification by the Civil Service Tribunal of the pleas relied on by the appellant — Infringement of the rights of the defence — Pleas unfounded

See the text of the decision. (see paras 26-29)

Although the administration possesses a wide discretion in deciding on the early termination of a fixed-term contract, it is of fundamental importance to monitor the observance of the guarantees conferred by the European Union legal order in administrative procedures. Those guarantees include, in particular, the duty of the competent administration to examine carefully and impartially all the relevant aspects of the individual case. (see para. 33) See: T-404/06 P ETF v Landgren [2009] ECR II-2841, para. 163 and the case-law cited therein

Claims directed against the rejection of a complaint have the effect of bringing before the court the act against which the complaint was submitted and as such lack any independent content. In so far as a decision rejecting a complaint set out further details of the allegations of acts which an official was ultimately found to have committed, the specific allegations made against that official must be identified from a reading of the original decisions in combination with the decision rejecting the complaint. The question whether the decision rejecting the complaint constitutes an act adversely affecting the official is relevant only where the action against the original decisions is dismissed as out of time. In such a case, the classification of the decision rejecting the complaint as such an act may result in the re-opening of the time-limits for bringing legal proceedings. (see paras 41-42) See: T-338/00 and T-376/00 Morello v Commission [2002] ECR-SC I-A-301 and II-1457, paras 34 and 35; T-258/01 Eveillard v Commission [2004] ECR-SC I-A-167 and II-747, para. 31; T-389/02 Sandini v Court of Justice [2004] ECR-SC I-A-295 and II-1339, para. 49; T-309/03 Camós Grau v Commission [2006] ECR II-1173, para. 43 and the case-law cited therein

The court of first instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. The appraisal of the facts by the first instance court therefore does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the General Court. Such distortion must be obvious — without any need for a new assessment of the facts and the evidence — from the documents on the Court’s file. The Civil Service Tribunal may, without distorting the facts, find that an institution has not carried out a full and detailed examination of the relevant and significant facts in the context of a decision to dismiss an official where the institution referred, in detail, to a negative aspect of the official’s conduct in the past without doing the same for the positive aspects shown in his personal file. (see paras 64, 66) See: T-222/07 P Kerstens v Commission [2008] ECR-SC I-B-1-37 and II-B-1-267, paras 60 to 62 and the case-law cited therein

See the text of the decision. (see para. 75) See: ETF v Landgren, para. 140