Case T‑24/23

UF

v

European Commission

Judgment of the General Court (Fourth Chamber) of 8 May 2024

(Civil service – Members of the temporary staff – Contract of indefinite duration – Termination of the contract – Article 47(c)(i) of the CEOS – Breakdown in the relationship of trust – Failure to establish the facts)

1. Officials – Members of the temporary staff – Members of the temporary staff falling under Article 2(c) of the Conditions of Employment of Other Servants – Close protection officer of members of the Commission – Termination of a contract concluded for an indefinite period – Administration’s discretion – Termination with notice – Justification based on a breakdown in the relationship of trust – Obligation to hold a disciplinary procedure – None

   (Staff Regulations of Officials, Annex IX; Conditions of Employment of Other Servants, Arts 47(c)(i) and 49(1))

   (see paragraphs 53-57)

2. Officials – Members of the temporary staff – Members of the temporary staff falling under Article 2(c) of the Conditions of Employment of Other Servants – Close protection officer of members of the Commission – Termination of a contract concluded for an indefinite period – Justification based on a breakdown in the relationship of trust – Judicial review – Limits

   (Conditions of Employment of Other Servants, Arts 2(c) and 47(c)(i))

   (see paragraph 58)

3. Officials – Members of the temporary staff – Members of the temporary staff falling under Article 2(c) of the Conditions of Employment of Other Servants – Close protection officer of members of the Commission – Termination of a contract concluded for an indefinite period – Justification based on a breakdown in the relationship of trust – Dismissal decision – Obligation to establish the truth of the alleged facts – Scope – Non-compliance – Consequences

   (Conditions of Employment of Other Servants, Arts 2(c) and 47(c)(i))

   (see paragraphs 64-70)

Résumé

Hearing an action brought by UF, a close protection officer of members of the European Commission, the General Court annuls the decision of that institution terminating his employment contract of indefinite duration as a member of the temporary staff.

On that occasion, the Court provides clarification in respect of the obligations of the institutions, in particular as regards the establishment of the facts in the context of a decision to terminate, for breach of trust, a contract between the institution and a member of the temporary staff within the meaning of Article 2(c) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’).

In the present case, following complaints received from the medical service concerning the allegedly inappropriate behaviour of the applicant during two virological polymerase chain reaction (PCR) tests, which he was required to undergo as part of his duties, the authority empowered to conclude contracts of employment (‘the AECCE’) terminated his contract for breach of trust, with a notice period of five months. The applicant lodged a complaint against that decision which was, however, rejected by the AECCE. Consequently, the applicant brought an action before the Court seeking, first, annulment of the decision terminating his employment contract and, second, compensation for the non-material damage suffered.

Findings of the Court

To begin with, the Court observes that, in principle, the AECCE was entitled to terminate the applicant’s contract on the basis of Article 47(c)(i) of the CEOS, before its expiry and with one month’s notice for each completed year of service, with a minimum of 3 months and a maximum of 10 months, without having to initiate disciplinary proceedings.

On account of the broad discretion enjoyed by the AECCE where there is wrongful conduct capable of justifying the dismissal of a member of the temporary staff, there is no obligation on that authority to initiate disciplinary proceedings against that person rather than using the option of unilaterally terminating the contract provided for in Article 47(c) of the CEOS. It is only if the AECCE intends to dismiss a member of the temporary staff without notice, in a serious case of failure to comply with his or her obligations, that the disciplinary procedure provided for in Annex IX to the Staff Regulations of Officials of the European Union, which applies by analogy to members of the temporary staff, should be initiated, as provided for in Article 49(1) of the CEOS.

In the present case, the reason for terminating the applicant’s contract, the notice period of which was complied with, was the breakdown in the relationship of trust between the Commission and the applicant because of the behaviour attributed to him during those PCR tests; that termination was pursuant to Article 47(c)(i) of the CEOS and not pursuant to Article 49(1) of the CEOS. In that regard, while it is not for the AECCE to substitute its own assessment for that of the applicant’s hierarchical superior as regards the reality of the breakdown in the relationship of trust, the AECCE must nevertheless, first of all, check whether the absence or loss of a relationship of trust has indeed been invoked, next, check that the facts have been accurately stated and, lastly, ensure that, in view of the grounds given, the request for termination is not vitiated by a breach of fundamental rights or by a misuse of powers. In that context, the AECCE may, for example, take the view, in the light of the observations made by the party concerned, that special circumstances justify the consideration of measures other than dismissal, such as the assignment of the person concerned to another post in the Commission.

Furthermore, where an institution which decides to terminate a contract of a member of the temporary staff refers, in particular, to specific material facts giving rise to the decision to dismiss for loss of trust, the Court is required to check the veracity of those material facts. In particular, in so far as an institution explains the grounds that have resulted in the loss of trust by referring to specific material facts, the Court must check that the facts on which those grounds are based are substantively accurate. In doing so, the Court must not substitute its assessment for that of the competent authority, which considers that the loss of trust has been established, but must confine itself to checking whether the facts referred to by the institution on which its decision was based are substantively accurate.

In that regard, after having examined the facts in question, the Court concludes that the decision of the AECCE is unlawful, since the AECCE found that the testimonies of the nurses who had carried out the two PCR tests at issue and whose version of the facts was called into question by the applicant provided it with sufficient information, and refused to verify the facts giving rise to the contested decision in the light of other evidence which was nevertheless available, or by holding an administrative inquiry. Accordingly, the Court upholds the applicant’s argument that the facts justifying the decision have not been established. It rejects, however, the claim for damages, since the applicant has not succeeded in demonstrating, as he was required to do, that the non-material damage which he alleges is incapable of being entirely repaired by the annulment of the contested decision and, as such, reparable.