JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

26 May 2011





Case F-83/09

Andreas Kalmár

v

European Police Office (Europol)

(Civil service — Europol staff — Dismissal — Request for annulment — Payment of remuneration — Effect of judgment ordering annulment)

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 Mr Kalmár seeks annulment of the decision of the Director of Europol of 4 February 2009 terminating his fixed-term contract and of the decision of 24 February 2009 relieving him of the duty to serve his period of notice. The applicant also asks the Tribunal to order his reinstatement and to order that Europol pay him his salary since his dismissal, as well as EUR 25 000 in compensation for his non-material damage.

Held: The decision of 4 February 2009 whereby the Director of Europol terminated the applicant’s fixed-term contract, the decision of 24 February 2009 whereby the Director of Europol relieved him of the duty to serve his period of notice, and the decision of 18 July 2009 rejecting his complaint are annulled. Europol is ordered to pay the applicant a sum of EUR 5 000 in damages. The remainder of the action is dismissed. Europol is ordered to bear its own costs and to pay the applicant’s costs.

Summary

1. Officials — Actions — Act adversely affecting an official — Express decision rejecting a complaint — Decision taken after reconsideration of an earlier decision — Admissibility — Limits

(Staff Regulations, Arts 90 and 91)

2. Officials — Actions — Subject-matter — Direction to the administration — Inadmissibility

(Europol Staff Regulations, Art. 93)

3. Officials — Europol staff — Decision affecting the administrative situation of a staff member — Early termination of a fixed-term contract — Legality — Conditions

(Europol Staff Regulations, Art. 94(1)(b))

4. Officials — Actions — Actions for damages — Annulment of the contested measure not adequate compensation for non-material damage — Unlawful dismissal of a staff member in special circumstances

(Europol Staff Regulations, Arts 93 and 94)

5. Officials — Europol staff — Actions — Actions for damages — Conditions for admissibility

(Europol Staff Regulations, Art. 92(1))

6. Officials — Actions — Unlimited jurisdiction — Dispute of a financial character within the meaning of Article 93(1) of the Europol Staff Regulations — Concept

(Europol Staff Regulations, Art. 93(1))

7. Officials — Actions — Judgment annulling a measure — Effects — Obligation to implement — Annulment, on account of a procedural irregularity, of a decision to dismiss a staff member — Adoption of a decision correcting the error — Retroactivity of the new decision — Lawfulness — Conditions

(Art. 266 TFEU)

1. An express decision rejecting a complaint which merely sets out in detail the grounds for confirming the earlier decision, adding only further information on those grounds, does not constitute an act adversely affecting the person concerned, since the administration’s grounds should then be clearly identifiable from a reading of the initial decision in conjunction with the decision rejecting the complaint.

(see para. 33)

See:

10 June 2004, T-258/01 Eveillard v Commission, para. 31; 7 June 2005, T-375/02 Cavallaro v Commission, para. 65

2. In the context of an action brought under Article 93 of the Europol Staff Regulations, the court may not make declarations of principle or findings nor give directions to Europol without encroaching upon the powers of the executive.

(see para. 35)

See:

27 June 1991, T-156/89 Valverde Mordt v Court of Justice, para. 150

30 April 2009, F-65/07 Aayhan and Others v Parliament, para. 52

3. A measure may lawfully be taken against an official only in the light of facts which have previously been proven to be real. Furthermore, every authority is required to take its decision in full knowledge of the facts and following a detailed examination of all the relevant information, so that that examination must be conducted carefully and impartially. Those requirements also apply to the contracting authority where it exercises its power under Article 94(1)(b) of the Europol Staff Regulations to terminate early the contract of a staff member on a fixed-term contract.

Consequently, where the Tribunal accepts a plea based on errors committed in the establishment of facts which have, generally speaking, been used to justify a measure in respect of an official or other staff member, the decision imposing that measure must be annulled in its entirety in view of its single, indivisible nature.

(see paras 63, 64 and 76)

See:

30 November 1993, T-78/92 Perakis v Parliament, paras 15 and 16; 16 October 1998, T-40/95 V v Commission, para. 49; 8 May 2001, T-182/99 Caravelis v Parliament, para. 32; 30 June 2005, T-347/03 Branco v Commission, para. 108; 13 July 2006, T-413/03 Shandong Reipu Biochemicals v Council, para. 63

4. The annulment of an unlawful act may in itself constitute adequate and, in principle, sufficient reparation for any non-material damage which that act may have caused. In that respect, while any dismissal is, by nature, likely to generate in the person dismissed feelings of rejection, frustration and uncertainty as to the future, it is only where there are special circumstances that it may be declared that the unlawful conduct of an employer has had a psychological impact on the staff member beyond what a dismissed person normally feels, and that that person is entitled to payment of compensation for non-material damage.

(see para. 81)

See:

9 December 2010, F-87/08 Schuerings v ETF, para. 73, on appeal before the General Court of the European Union, Case T-107/11 P, and Case F-88/08 Vandeuren v ETF, para. 73, on appeal before the General Court of the European Union, Case T-108/11 P

5. In so far as a member of the Europol staff intends to base his claim for compensation on actions separate from the decisions he contests, he must, in such a case, lodge, prior to his complaint, a request for compensation on the basis of Article 92(1) of the Europol Staff Regulations.

(see para. 84)

6. A claim seeking payment by Europol to a staff member of a sum which he considers to be due to him under the Europol Staff Regulations is a ‘dispute of a financial character’ within the meaning of Article 93(1) of the Staff Regulations, but is to be distinguished from actions to establish liability brought by staff members seeking damages against Europol.

(see para. 87)

See:

18 December 2007, C-135/06 P Weißenfels v Parliament, paras 65, 67 and 68

2 July 2009, F-49/08 Giannini v Commission, paras 39 to 42

7. Following the annulment of a dismissal decision by the Union courts, the defendant institution is required to take steps to comply with the judgment by reinstating, where the annulment has retroactive effect, the situation on the date on which the decision to dismiss the applicant was taken.

Where the applicant was employed on a fixed-term contract, the reinstatement of his legal position should, in principle, lead the institution to pay him the difference between the amount of remuneration to which he would have been entitled had he remained in employment with that institution and the remuneration or unemployment benefit he actually received between the date of dismissal and the date when the contract should properly have ended.

However, where the dismissal decision was annulled because the institution did not carefully conduct a full and detailed examination of the facts, the institution may, in any event, consider that, following a full and detailed re-examination of the case, taking into account the grounds of the annulling judgment, it is able to adopt a fresh decision terminating the applicant’s contract. Moreover, in so far as the complaint upheld relates to a procedural irregularity, it is not even totally inconceivable that the institution will give its new decision retroactive effect, since that retroactivity would be necessary in order to achieve the aim pursued by the measure in question and would not infringe the legitimate expectations of the person concerned.

Consequently, the Union judicature, which may not substitute its assessment for that of the institution, cannot order the institution to pay the applicant’s salary from the date when his contract was unlawfully terminated, if it is not to prejudge the course of action which the institution will adopt.

(see paras 89-93)

See:

30 September 1982, 108/81 Amylum v Council, paras 4 to 17

17 October 1991, T-26/89 de Compte v Parliament, para. 66; 2 May 2006, T-328/03 O2 (Germany) v Commission, para. 48; 9 September 2008, T-75/06 Bayer CropScience and Others v Commission, para. 63; 23 October 2008, T-256/07 People’s Mojahedin Organization of Iran v Council, para. 65

5 May 2009, F-27/08 Simões Dos Santos v OHIM, paras 100 and 101