JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

9 September 2015

Stéphane De Loecker

v

European External Action Service (EEAS)

‛Civil service — EEAS staff — Temporary staff — Head of delegation to a third country — Breakdown in the relationship of trust — Transfer to EEAS headquarters — Early termination of employment contract — Prior notice — Statement of reasons for a decision — Article 26 of the Staff Regulations — Rights of defence — Right to be heard’

Application

:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr De Loecker seeks annulment of the decision of the High Representative of the Union for Foreign Affairs and Security Policy (the ‘High Representative’), of 20 December 2013, to terminate his contract as a member of the temporary staff with effect from 31 March 2014, annulment of the decisions of the High Representative refusing to hear him following his complaint of harassment against the Chief Operating Officer of the European External Action Service (EEAS), refusing his request to appoint a very senior external investigator to examine that complaint, and causing it to be treated as a request for assistance by the competent services of the European Commission, as well as measures of inquiry.

Held

:

The action is dismissed. Mr De Loecker shall bear his own costs and is ordered to pay the entirety of the costs incurred by the European External Action Service.

Summary

1. Actions brought by officials — Members of the temporary staff — Acts adversely affecting an official — Meaning — Refusal to grant an interview to the party concerned in order to inform him of the exact reasons for his reassignment — Transfer decision already the subject of an action for annulment — Not included

   (Staff Regulations, Arts 90(2) and 91(1))

2. Officials — Decision affecting the administrative status of an official — Account taken of factual matters not appearing in the personal file of the party concerned, but previously brought to his knowledge — Legality — Conditions

   (Staff Regulations Arts 26 and 90(1); Conditions of Employment of Other Servants, Art. 11)

3. Officials — Personal file — Documents required to be placed in the file — Decision affecting the administrative status of an official — Meaning — Administrative investigation report — Not included — Evaluation report identifying serious failings on the part of an official — Included

   (Staff Regulations, Art. 26, first para., sub-para. a), and Annex IX, Art. 2(2))

4. Officials — Members of the temporary staff — Termination of a contract for a fixed period — Obligation to adopt a decision after giving the party concerned the opportunity to submit his observations — Scope — Infringement — Consequences

   (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Conditions of Employment of Other Servants, Art. 47(b)(ii))

1.  Only measures which produce binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in his legal position constitute acts having adverse effect which may therefore be the subject of an action for annulment.

   In this regard, a refusal on the part of the authority empowered to conclude contracts of employment to grant an interview to a member of the temporary staff who asks to be heard in order to be informed of the exact reasons for his transfer from the post for which he had been recruited to another post is not an act having adverse effect where the transfer decision is already the subject of an action for annulment before the Courts of the European Union.

   Such refusal follows on from the decision reassigning the party concerned and appears to be no more than a precautionary measure intended to preserve that decision against the background of the action for annulment — then pending — which had been brought against it.

   (see paras 46-48)

   See:

   Order of 13 July 2004 in Comunidad Autónoma de Andalucía v Commission, T‑29/03, EU:T:2004:235, para. 29, and judgment of 4 October 2006 in Tillack v Commission, T‑193/04, EU:T:2006:292, para. 67

   Judgment of 20 May 2010 in Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, para. 46

   Judgment of 26 February 2013 in Labiri v EESC, F‑124/10, EU:F:2013:21, para. 42

2.  The purpose of Article 26 of the Staff Regulations, which applies to members of the temporary staff by virtue of Article 11 of the Conditions of Employment of Other Servants, is to guarantee the right to a fair hearing of officials and other servants, by ensuring that decisions taken by the authority empowered to conclude contracts of employment and which affect their administrative status and their career are not based on matters concerning their ability, efficiency or conduct which are not included in their personal file. A decision based on such factual matters is therefore contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality.

   However, a breach of sub-paragraph (a) of the first paragraph of Article 26 of the Staff Regulations leads to the annulment of an act only if it is established that the documents in question could have had a decisive impact on the act at issue. The mere fact that such documents were not placed on an official’s personal file is not enough to justify annulment of a decision adversely affecting him if they were in fact brought to his knowledge. It is apparent from the second paragraph of Article 26 of the Staff Regulations that the prohibition on using against an official documents concerning his administrative status applies only to documents which were not previously communicated to him. It does not cover documents which, although brought to his knowledge, have not yet been placed on his personal file. In the event of the institution not placing such documents on the official’s personal file, it would always be open to the official to make a request to that effect under Article 90(1) of the Staff Regulations, and, in the event of rejection, to lodge an administrative complaint. But, in any case, the institution cannot be prevented from taking a decision in the interests of the service on the basis of documents that were previously communicated to the person concerned, simply on the ground that they were not put on his personal file.

   (see paras 74, 84)

   See:

   Judgment of 12 November 1996 in Ojha v Commission, C‑294/95 P, EU:C:1996:434, para. 68

   Judgment of 28 June 2007 in Bianchi v ETF, F‑38/06, EU:F:2007:117, para. 45

3.  Sub-paragraph (a) of the first paragraph of Article 26 of the Staff Regulations does not, in itself, require the administration to place all documents of any sort relating to an official on his personal file. It thus makes a distinction between, on the one hand, ‘documents’, which are only required to be placed on the file if they relate to the administrative status of the official concerned, and ‘reports’, which are only required to be placed on the file if they concern his ability, efficiency or conduct, and, on the other hand, any other document relating to the official concerned. In relation to such reports, the intended reference in sub-paragraph (a) of the first paragraph of Article 26 is to formal documents of an official character which have as their subject-matter the ability, efficiency or conduct of the official.

   However, Article 26 of the Staff Regulations does not in any way prohibit an institution from opening an investigation and creating a file for that purpose, the only documents relating to that investigation which are required to be placed on the official’s file being any disciplinary decisions which are taken on the basis of that file.

   In this regard, it is not apparent from Article 26 of the Staff Regulations that the administration is required to place the report of an administrative investigation concerning an official on his personal file, after bringing it to his attention. Under Article 2(2) of Annex IX to the Staff Regulations, the duty of the administration at the end of an investigation is to inform the person concerned of the conclusions of the investigation report, and it is only on request by that person and subject to the protection of the legitimate interests of third parties that it must also communicate to him all documents directly related to the allegations made against him.

   Any and all documents which could have a decisive impact on the decision having adverse effect must, in principle, have been communicated to the official concerned, then placed on his personal file. Notwithstanding the fact that it is not a report concerning the ability, efficiency or conduct of the official concerned within the meaning of Article 26 of the Staff Regulations, an evaluation report identifying serious failings on the part of the official concerned must be so communicated and placed on the personal file, since such a report could have a decisive impact on the decision as to whether or not to dismiss him.

   (see paras 75, 77, 78, 83)

   See:

   Judgment of 12 November 1996 in Ojha v Commission, EU:C:1996:434, para. 67

   Judgments of 2 April 1998 in Apostolidis v Court of Justice, T‑86/97, EU:T:1998:71, para. 36; 20 September 2001 in Recalde Langarica v Commission, T‑344/99, EU:T:2001:237, para. 66, and 5 October 2009 in de Brito Sequeira Carvalho v Commission and Commission v de Brito Sequeira Carvalho, T‑40/07 P and T‑62/07 P, EU:T:2009:382, para. 96

   Judgments of 13 November 2014, De Loecker v EEAS, F‑78/13, EU:F:2014:246, para. 50, and 15 April 2015, Pipiliagkas v Commission, F‑96/13, EU:F:2015:29, para. 48

4.  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 is taken. Moreover, that provision applies even where the applicable legislation does not expressly provide for such a procedural requirement. The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely.

   In this regard, a decision to terminate the contract of employment of a member of a temporary staff on the basis of Article 47(b)(ii) of the Conditions of Employment of Other Servants is an individual measure which adversely affects the member of the temporary staff concerned. The party concerned must therefore be heard before such a decision is adopted, even though that provision does not specifically provide for such a right.

   The purpose of the rule that the addressee of a decision affecting that person adversely must be placed in a position to submit his observations before that decision is adopted is to enable the authority concerned effectively to take into account all relevant information. In order to ensure that the addressee is in fact protected, the objective of that rule is, inter alia, to enable him to correct an error or produce such information relating to his personal circumstances as will tell in favour of the decision’s being adopted or not, or of its having this content or that.

   However, for an infringement of the right to be heard to result in the annulment of the contested decision, it is also necessary to examine whether, in the absence of that irregularity, the procedure might have led to a different result.

   Where a dismissal decision has been adopted without the party concerned being heard, and where it is clear from the particular circumstances that hearing the party concerned before adopting the decision would not have been liable to persuade the authority empowered to conclude contracts of employment not to dismiss the party concerned before the expiry of his contract, it is not appropriate to annul the dismissal decision. This is the case, in particular, where the party concerned, having been employed to perform management functions as head of a delegation of the European Union, has displayed serious failings in his management of that delegation, giving rise to a loss of trust on the part of the authority empowered to conclude contracts of employment in his ability to manage a delegation, and where the party concerned has been heard, prior to the adoption of the dismissal decision, in relation to his failings as head of delegation.

   In such circumstances, the duty of the authority empowered to conclude contracts of employment to have regard to the welfare of the party concerned does not extend so far as to require that authority to retain him in his post until expiry of his contract when, even supposing that the party concerned had been heard before the dismissal decision was adopted, that authority would in any event have decided to dismiss him before his contract had reached its term.

   (see paras 122-124, 127, 128, 133)

   See:

   Judgments of 18 December 2008 in Sopropé, C‑349/07, EU:C:2008:746, para. 49; 1 October 2009 in Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, para. 83, and 3 July 2014 in Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paras 39 and 79

   Judgments of 12 December 2013 in CH v Parliament, F‑129/12, EU:F:2013:203, paragraphs 34 and 38; 14 May 2014 in Delcroix v EEAS, F‑11/13, EU:F:2014:91, para. 42; 10 September 2014 in Tzikas v ERA, F‑120/13, EU:F:2014:197, para. 46, and 17 September 2014 in Wahlström v Frontex, F‑117/13, EU:F:2014:215, para. 28