Case T‑355/19

CE

v

Committee of the Regions

Judgment of the General Court (Seventh Chamber), 16 June 2021

(Civil Service – Temporary staff – Article 2(c) of the CEOS – Contract for an indefinite period – Early termination with notice – Article 47(c)(i) of the CEOS – Breakdown in the relationship of trust – Terms of notice – Abuse of process – Right to be heard – Principle of sound administration – Rights of the defence – Manifest error of assessment)

1. Actions brought by officials – Interest in bringing proceedings – Action capable of securing a benefit for the applicant – Action brought against a measure which upheld the applicant’s application – Inadmissibility

   (Staff Regulations, Arts 90 and 91)

   (see paragraphs 49-53)

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 – Member of the temporary staff assigned to a political group of the Committee of the Regions – Termination of a contract concluded for an indefinite period – Administration’s discretion – Termination with notice – Decision not to assign any tasks during the notice period – Justification based on the breakdown in the relationship of trust – Obligation to initiate disciplinary proceedings – The person concerned is not accused of serious misconduct – Absence

   (Staff Regulations, Annex IX, Art. 23; Conditions of Employment of Other Servants, Arts 47(c)(i) and 49(1))

   (see paragraphs 60-76)

3. Officials – Members of the temporary staff – Termination of a contract concluded for an indefinite period – Obligation to state reasons and of respect for the rights of the defence – Scope

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

   (see paragraphs 82-91)

4. Officials – Members of the temporary staff – Termination of a contract for a fixed period – Termination with notice and simultaneous suspension from duties – Adoption of the decision without giving the person concerned the opportunity to submit observations on the terms implementing the notice – Infringement of the right to be heard – Consequences

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

   (see paragraphs 92-106, 139)

5. Officials – Non-contractual liability of the institutions – Damage – Damage for which compensation is available – Costs incurred in the pre-litigation and litigation procedure – Not included

   (Art. 340 TFEU)

   (see paragraph 144)

Résumé

The applicant, CE, was recruited as a member of the temporary staff under Article 2(c) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), as Secretary-General of one of the political groups (‘the group’) within the Committee of the Regions.

Following a number of complaints relating to problems with the way in which the applicant exercised her managerial responsibilities in respect of her subordinates, the authority empowered to conclude contracts of employment (‘the AECE’) of the Committee of the Regions terminated, with six months’ notice, the applicant’s contract as a member of the temporary staff on the basis of Article 47(c)(i) of the CEOS on the ground that the relationship of trust between the applicant and the group had broken down, on account of the inappropriate management of her colleagues resulting in colleagues suffering serious health issues (‘the contested decision’).

That decision was accompanied by measures organising its implementation. In that regard, it was stated that the applicant was subject to a dispensation from service during the notice period and that she would be replaced in her duties, that she could access her office to collect her personal belongings for a certain period, that she would receive a new access badge which would not enable her to attend meetings of the Bureau of the political group or plenary sessions and that she would have access to her email solely in ‘read-only mode’. That decision also stated that the contract would end on the expiry of the notice period. The applicant lodged a complaint with the AECE of the Committee of the Regions, which was rejected.

Hearing an action for annulment of the contested decision, the General Court clarifies the specific terms implementing the notice in connection with the termination of a contract on the basis of Article 47(c)(i) of the CEOS and concludes that the AECE of the Committee of the Regions was entitled to terminate the applicant’s contract on the basis of Article 47(c)(i) of the CEOS, before its expiry and with six months’ notice, while deciding that she should not work during the notice period and without having to initiate disciplinary proceedings. However, the General Court annuls the contested decision in so far as the applicant’s right to be heard before the contested decision was adopted was infringed in respect of the specific terms implementing the notice.

Assessment of the General Court

The General Court discloses, first of all, that, on account of the broad discretion enjoyed by the AECE 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 and it is only if the AECE 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 a disciplinary procedure should be initiated, as provided for in Article 49(1) of the CEOS.

Next, with regard to the terms of notice, the General Court states that, although Article 47(c)(i) of the CEOS does not expressly provide that the conditions of employment of the staff member whose contract is terminated can be the subject of adjustments during the notice period, so that that period is presumed to constitute a normal period of work, the fact remains that the institutions, bodies, offices and agencies of the European Union have a wide discretion in the organisation of their departments and in assigning the staff available to them, provided that this assignment is carried out in the interest of the service and in conformity with the equivalence of posts, including for staff members who are serving in a notice period. In that regard, it cannot be ruled out that, in certain specific circumstances, the interests of the service require that the person concerned is relieved of all duties during the notice period. That may be the case specifically in the event of a dismissal, on the ground of a breakdown in the relationship of trust, of a member of staff who was recruited on the basis of Article 2(c) of the CEOS and against whom no serious misconduct within the meaning of Article 23 of Annex IX to the Staff Regulations of the European Union (‘the Staff Regulations’) has been found or even alleged. All temporary staff recruited on the basis of Article 2(c) of the CEOS have an employment contract concluded intuitu personae, the essential part of which is mutual trust. Therefore, the breakdown in such a relationship of mutual trust may be such that it is impossible for the person or entity responsible for recruiting the member of the temporary staff to entrust him or her with any tasks during the notice period. In such a situation, the decision not to assign any tasks during the notice period constitutes a measure taken in the interest of the service and cannot necessarily be treated as a suspension decision taken under Articles 23 and 24 of Annex IX to the Staff Regulations. Similarly, where the situation which gave rise to the breakdown in the relationship of trust with a member of the temporary staff recruited on the basis of Article 2(c) of the CEOS makes it impossible for that staff member to be assigned tasks during the notice period, the AECE cannot be required to initiate disciplinary proceedings during that period.

The General Court concludes, in that regard, that the AECE of the Committee of the Regions could, without having to initiate disciplinary proceedings, terminate the applicant’s contract on the basis of Article 47(c)(i) of the CEOS, before its expiry and with six months’ notice, while deciding that she should not work during the notice period.

Finally, with regard to the right to be heard in the context of the adoption of the contested decision in so far as it lays down the specific terms implementing the notice period, the General Court finds that, before the contested decision was adopted, the applicant did not have the opportunity to submit her observations in that regard. Such measures may not be adopted without having first heard the person concerned in order to ensure that he or she has been able to express his or her views on them. In that regard, the General Court recalls that the right to be heard is intended, inter alia, to enable the person concerned to clarify certain information or to submit further information, for example relating to his or her personal circumstances, as may argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content. The General Court considers that it cannot reasonably be ruled out that the specific terms implementing the notice contained in the contested decision, in particular that exempting the applicant from performing the work under her contract during the notice period, might have had a different outcome if the applicant had been duly heard. Consequently, the General Court annuls the contested decision in so far as it determines specific terms for implementing the notice on account of the infringement of the applicant’s right to be heard. However, that unlawful act does not, in itself, call into question the legality of that decision in so far as it terminated the applicant’s contract.