JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

2 July 2014

Case F‑63/13

Aristidis Psarras

v

European Union Agency for Network and Information Security (ENISA)

(Civil service — Temporary staff — Termination of contract — Article 41(2)(a) of the Charter of Fundamental Rights of the European Union — Right to be heard — Non-material damage — Resulting unlawful decision — Excessive breach of the rights of a third party — Compensation order of the court’s own motion — Non-compliance with an annulling judgment)

Application: under Article 270 TFEU, in which Mr Psarras seeks, in particular, annulment of the decision of the European Union Agency for Network and Information Security (ENISA) of 4 September 2012 to terminate his temporary staff contract.

Held: The decision of 4 September 2012 of the Executive Director of the European Union Agency for Network and Information Security terminating Mr Psarras’s temporary staff contract is annulled. The European Union Agency for Network and Information Security is ordered to pay Mr Psarras the sum of EUR 40 000. The remainder of the action is dismissed. The European Union Agency for Network and Information Security is to bear its own costs and is ordered to pay the costs incurred by Mr Psarras.

Summary

1. Officials — Principles — Rights of defence — Obligation to hear the person concerned before adopting an act adversely affecting him — Scope

(Charter of Fundamental Rights of the European Union, Art. 41(2))

2. Actions brought by officials — Judgment annulling a measure — Effects — Consequential annulment of subsequent acts relating to third parties — Unlawfulness of a decision terminating an employment contract — Annulment constituting an excessive penalty prejudicing the rights of third parties — Reparation of damage through payment of compensation

(Art. 340(2) TFEU; Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 117)

3. Actions brought by officials — Actions for damages — Annulment of the contested measure not providing adequate compensation for non-material damage — Award of financial compensation

(Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 117)

4. Officials — Non-contractual liability of the institutions — Failure to fulfil the obligation to comply with a judgment annulling a measure — Wrongful act which itself entails non-material damage

(Arts 266 TFEU and 340(2) TFEU)

1. Under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, every person has the right to be heard before any individual measure which would affect him or her adversely, in particular a decision terminating his or her contract, is taken.

Since the purpose of the fundamental right to be heard is to give every person the opportunity to express their point of view on a measure adversely affecting them, the substance of that fundamental right implies that the person concerned should have the possibility of influencing the decision-making process in question, which is likely to ensure that the decision to be adopted is not vitiated by material errors and is the outcome of an appropriate balancing of the interests of the service and the personal interests of the individual concerned.

(see paras 34, 35, 41)

See:

judgment in Marcuccio v Commission, T‑236/02, EU:T:2011:465, para. 115

judgment in CH v Parliament, F‑129/12, EU:F:2013:203, paras 33 and 34

2. Where restoring the legal position which the applicant held prior to the annulment of an act involves the annulment of subsequent acts but which relate to third parties, that resulting annulment will be ordered only if it does not appear excessive, particularly in the light of the nature of the unlawful act committed and the interests of the service.

However, where a comparison of the interests involved shows that the interest of the service and the interest of third parties preclude the consequential annulment of decisions such as an appointment decision, the Union judicature may, in order to ensure that the annulling judgment has a practical effect in the applicant’s interests, use the unlimited jurisdiction conferred upon it in proceedings concerning pecuniary matters and order, even of its own motion, the defendant institution to pay compensation. Where the act adversely affecting an applicant is a decision terminating an employment contract the annulment of which would involve the annulment of a subsequent decision appointing a third party, the award of compensation for the non-material damage suffered by a person who has been dismissed is a form of reparation which best meets both the applicant’s interests and the needs of the service.

(see paras 46, 47)

See:

judgment in Oberthür v Commission, 24/79, EU:C:1980:145, paras 11, 13 and 14

judgments in Kotzonis v ESC, T‑586/93, EU:T:1995:54, para. 108; Wenk v Commission, T‑159/96, EU:T:1998:86, para. 122; and Girardot v Commission, T‑10/02, EU:T:2004:94, paras 85 and 89

3. The annulment of an unlawful act may in itself constitute appropriate and, in principle, sufficient reparation for any non-material damage that act may have caused, unless the applicant demonstrates that he has suffered non-material damage separable from the illegality of the act justifying its annulment and not capable of being entirely remedied by that annulment.

In cases where the seriousness of the decision, the nature of the illegality committed, that is, the infringement of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, and the circumstances in which the illegality was committed create serious uncertainty and anxiety, the annulment of the decision is not capable of constituting in itself adequate and sufficient compensation for the non-material damage caused.

(see paras 54, 55)

See:

judgment in CH v Parliament, EU:F:2013:203, para. 64

4. A body which adopted a decision that has been annulled infringes Article 266 TFEU and commits a breach of administrative duty giving rise to liability on its part where it fails to adopt any measure at all to implement the judgment annulling the decision, and it even omits to take any action to explore a possible settlement with the applicant. Failure to implement a judgment annulling a decision constitutes a breach of the confidence which every individual must have in the Union judicial system, based in particular on compliance with decisions handed down by the Union courts, and itself entails non-material damage for the successful party, irrespective of any material harm that may result from that failure

(see paras 60, 63)

See:

judgments in Hautem v EIB, T‑11/00, EU:T:2000:295, para. 51; and C v Commission, T‑166/04, EU:T:2007:24, paras 49 and 52

judgment in C and F v Commission, F‑44/06 and F‑94/06, EU:F:2007:66, para. 69