CJ v ECDC (Civil service - Members of the contract staff - Fixed-term contract - Early termination : Judgment) [2017] EUECJ T-703/16 (13 December 2017)

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(Civil service — Members of the contract staff — Fixed-term contract — Early termination — Article 47(b)(ii) of the CEOS — Terms of notice — Liability — Non-material damage)

European Centre for Disease Prevention and Control (ECDC), represented by J. Mannheim and A. Daume, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers,

APPLICATION based on Article 270 TFEU and seeking compensation for the harm suffered by the applicant arising from the decision of the director of the ECDC, communicated to him on 24 February 2012, to terminate early his contract as a member of the contract staff,

composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,

1 The applicant, CJ, was recruited by the European Centre for Disease Prevention and Control (ECDC) on 1 January 2010 as a member of the contract staff in function group IV, at grade 14, for a period of five years, as a ‘legal assistant’ within the ‘Legal and Procurement’ section of the ‘Resource Management and Coordination’ unit of the ECDC.

2 By decision of the director of the ECDC communicated to the applicant on 24 February 2012 (‘the termination decision’), the applicant’s contract as a member of the contract staff was terminated under Article 47(b)(ii) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), with a two-month notice period expiring on 30 April 2012 and payment of financial compensation equivalent to one third of the basic salary for the remaining period of that contract, that is, from 1 May 2012 to 31 December 2014.

3 The termination decision was motivated, in essence, by irreparable damage to the relationship of trust between the applicant, on one hand, and the director and the other ECDC staff members on the other, which allegedly resulted from the persistent insubordination of the applicant, characterised by serious difficulties in accepting management decisions, repeated refusals to perform tasks entrusted to him as well as obstructive and provocative behaviour.

‘Today will be your last day working in the office and an automated response for your email account will be prepared confirming that all future enquiries should be addressed to your line manager. You may choose to remove personal belongings today or make an appointment to visit the office during your notice period to retrieve items when the office in which you work is unoccupied. Arrangements should be made via Human Resources to hand in your ECDC security card today. You will be assigned work to be performed from home by your line manager and this will include the preparation of a handover file.

Contact with ECDC will be restricted to [the director], A.A. and R.T. and you are instructed neither to seek, nor maintain, contact with any other staff members or third parties in relation to ECDC matters. Any approach made by such parties to you relating to your role as an ECDC staff member should be referred to your line manager. Additional contact may be made with R.R. or A.D. in Human Resources to arrange any practical matters.’

5 After lodging an unsuccessful complaint against the initial termination decision, the applicant brought an action before the European Union Civil Service Tribunal.

Original proceedings before the Civil Service Tribunal in the case giving rise to the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12)

6 By an initial action, registered under number F‑159/12, the applicant sought the annulment of the termination decision and compensation for the material harm allegedly resulting from that decision. A second action, registered under number F‑161/12, sought compensation for various heads of non-material damage allegedly resulting from that decision.

7 The Civil Service Tribunal ruled on those two actions by judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, ‘the original judgment’, EU:F:2015:38).

8 As regards the action in Case F‑159/12, the Civil Service Tribunal annulled the decision to terminate on the basis of the applicant’s first plea, alleging breach of the right to be heard, in so far as he had not been heard regarding the consequences that the ECDC intended to draw from the facts alleged against him. All the other pleas put forward by the applicant in support of his action, in particular those challenging the lawfulness of that decision in the light of its grounds, were examined and rejected.

9 With regard to the appeal in Case F‑161/12, the Civil Service Tribunal dismissed all the heads of claim in the claim for damages, in particular the first of these (‘the first head of claim’).

10 By the first head of claim, the applicant sought compensation for the non-material damage he suffered as a result (i) of the allegedly inaccurate and injurious nature of the reasons put forward to justify the termination decision, (ii) of the summary effect of the termination of his contract and, (iii) of the fact that several persons were informed of those reasons and of what was in practice, according to him, the summary termination of his contract.

11 Specifically, the applicant argued in that regard, in the application to the Civil Service Tribunal, first, that the reasons given in support of the termination decision were erroneous, that they infringed the presumption of innocence with regard to those allegations which would correspond to criminal offences and that, therefore, they were invalid and insulting, which resulted in damage to his honour and reputation.

12 Secondly, the termination of his contract with two months’ notice amounted, in fact, to dismissal without notice, taking into account the specific terms implementing that notice, namely the order to return his access card and to leave his office definitively, the activation of an automated response in his email account requesting that all enquiries be addressed to his line manager, the prohibition on contact with ECDC staff members other than his superiors, the instruction to provide a document detailing the status of any cases he had been handling and a work log. Thus, while circumventing the provisions of the Staff Regulations of the European Union (‘the Staff Regulations’) and of the CEOS applicable in the event of dismissal without notice, the ECDC decided, in practice, to carry out such a dismissal, which harmed the applicant’s professional honour and reputation, since such dismissal occurs only in the case of a serious breach of duty.

13 Thirdly, the applicant claimed that, out of a sense of loyalty to his family and acquaintances, as well as potential employers who he had contacted, he had to inform them of that termination decision, of the reasons for it and of its summary effect. Furthermore, ECDC staff members other than his acquaintances and anyone who attempted to email him had also been informed of that decision or of its consequences without his intervention.

14 By the first head of claim, the applicant claimed an amount of ‘at least EUR 80 000’. That amount was broken down into ‘at least EUR 60 000’ for the non-material damage resulting, in essence, from the allegations of criminal offences and ‘at least EUR 20 000’ for the non-material damage resulting from other facts.

15 In the statement in defence before the Civil Service Tribunal, the ECDC challenged the merits of the first head of claim.

16 In paragraph 237 of the original judgment, the Civil Service Tribunal found that the 1st head of claim was closely linked to the 9th, 11th and 12th grounds of the application for annulment, by which the applicant claimed that the ECDC had made several manifest errors of assessment by adopting the termination decision, and that those pleas had been rejected as unfounded, as no illegality had been established. Consequently, it dismissed that head of claim and the action in Case F‑161/12 in its entirety and ordered the applicant to bear his own costs and those of the ECDC in that case. Those two decisions were dealt with in paragraphs 3 and 5 of the operative part of the original judgment.

Appeal before the General Court in the case giving rise to the judgment of 5 October 2016, CJ v ECDC (T‑370/15 P)

17 The original judgment was the subject of two appeals before the General Court.

18 The ECDC’s appeal, relating to the original judgment in so far as it annulled the termination decision, was rejected by the judgment of 5 October 2016, ECDC v CJ (T‑395/15 P, not published, EU:T:2016:598).

19 The applicant’s appeal was dismissed by the judgment of 5 October 2016, CJ v ECDC (T‑370/15 P, not published, ‘the judgment on appeal’, EU:T:2016:599), with the sole exception of the fourth complaint in the fourth ground of appeal, relating to the original judgment insofar as it dealt with the claim for compensation for non-material damage relating to the terms of notice set out in the termination decision. That claim was included in the first head of claim. That complaint was examined in paragraphs 143 to 156 of the judgment on appeal and gave rise to the annulment of paragraphs 3 and 5 of the operative part of the original judgment, by which, in Case F‑161/12, the action had been dismissed and the applicant had been ordered to pay, in addition to his own costs, those incurred by the ECDC.

20 In that regard, the General Court noted, in paragraphs 148 to 151 of the judgment on appeal, that ‘there were adjustments made to that notice period which were not envisaged in [Article 47(b)(ii) of the CEOS]’, the provision on which the termination decision was based. It then found, in paragraphs 153 and 154 of that judgment, that the three pleas submitted in the context of the application for annulment of the termination decision, dismissal of which had been held, by the Civil Service Tribunal, as implying the rejection of the first head of claim, on the ground that it was closely related to those pleas, were unrelated to the legality of the adjustments to the notice period provided for in that decision, so that the Civil Service Tribunal had failed to rule on that head of claim.

21 Moreover, in paragraph 155 of the judgment on appeal, the General Court held that it could not be excluded that the applicant could establish that the adoption of the termination decision, in so far as it determined the terms of the notice period provided therein, was flawed and that that decision had caused him non-material damage such as to give rise to a possibility of obtaining compensation.

22 Consequently, the General Court annulled paragraphs 3 and 5 of the operative part of the original judgment, referred the case back to a Chamber other than the Chamber which ruled on the appeal, namely the First Chamber, and reserved the costs of the appeal proceedings in so far as they related to Case F‑161/12.

23 The parties submitted their observations under Article 217(1) of the Rules of Procedure of the General Court, applicable by analogy to the present proceedings on referral, as regards the conclusions to be drawn from the judgment on appeal.

24 Following the filing by the applicant and the ECDC of their comments on 17 October and 15 December 2016, respectively, the written part of the proceedings on referral was closed. Given that no request for a hearing was submitted by the parties within the specified time, the General Court decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure.

25 In his observations of 17 October 2016, the applicant refers to the relevant part, having regard to the operative part of the judgment on appeal, of the forms of order sought in the application in Case F‑161/12. By those forms of order he asks, in essence, that the ECDC be ordered to pay him at least EUR 20 000, in addition to the costs.

26 In its observations of 15 December 2016, the ECDC contends that the Court should:

27 By decision of 2 May 2017, the General Court (First Chamber) instructed the Judge-Rapporteur to explore the possibilities of settling the dispute by means of an amicable settlement, in accordance with Article 125a of the Rules of Procedure.

28 The Court noted the failure of the attempted settlement, of which the parties were informed by letter from the Registry of 9 August 2017.

29 At the outset, it must be recalled that in order for the ECDC to incur liability, a number of conditions must be satisfied, namely, the conduct of which it is accused must be unlawful, actual damage must have been suffered and there must be a causal link between the alleged conduct and the damage pleaded, those three conditions being cumulative (see, to that effect, order of 4 April 2011, Marcuccio v Commission, T‑239/09 P, EU:T:2011:138, paragraph 60 and the case-law cited, and judgment of 19 May 2015, Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 71 and the case-law cited).

30 Furthermore, disputes involving the civil service under Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, including those seeking compensation for damage caused to an official or other member of staff, are governed by particular and special rules that differ from those arising from the general principles on the non-contractual liability of the European Union under Article 268 TFEU and the second paragraph of Article 340 TFEU. It is clear from the Staff Regulations in particular that, unlike any other individual, an official or other member of European Union staff is connected to the institution or body to which he belongs by a legal relationship of employment involving a balance of specific reciprocal rights and obligations, which is reflected in the institution’s duty to have regard for the welfare of the person concerned (see judgment of 16 December 2010, Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paragraph 46 and the case-law cited). It follows that the mere finding of unlawfulness is sufficient to satisfy the first of the three conditions necessary to incur the liability of the European Union for damage caused to its officials and servants due to the infringement of the law of the European Union civil service (judgment of 12 July 2011, Commission v Q, T‑80/09 P, EU:T:2011:347, paragraph 45).

31 Finally, as regards the condition relating to the existence of an unlawful act, the discretion available to the administration must be taken into account. Where it has wide discretion, in particular where the applicable legal framework does not require it to act in a predetermined manner, only manifest error of assessment constitutes an unlawful act. However, if the administration must adopt a particular form of conduct pursuant to legislation in force, general principles or fundamental rights, or by the rules that it has imposed on itself, the simple failure to fulfil such an obligation is such as to give rise to liability on the part of the institution concerned (see, to that effect, judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission, F‑50/09, EU:F:2011:55, under appeal, paragraphs 118 to 120).

32 In the context of the claim for compensation included in the first head of claim which remains to be adjudicated, relating to the non-material damage sustained by the applicant as a result of the terms of notice set out in the termination decision (‘the claim for compensation’), the latter claims, in the application initiating proceedings, that, having regard to those terms, the termination of his contract was equivalent to dismissal without notice. He refers, in that regard, to the following terms:

– the fact that he was obliged, from the day after the decision was notified to him, to definitively cease all activity in the premises of the ECDC, free access to those premises being henceforth forbidden to him, as was the use of his professional email and any contact, whether active or passive, as an ECDC staff member except with his superiors and two members of the human resources department;

– the fact that, from that day, he was not assigned any further substantive tasks, other than the request to provide a handover document detailing the status of any current cases as well as a log of his activities.

33 According to the applicant, the ECDC thus sought to circumvent the provisions which allow an institution, body or organisation to immediately terminate the appointment of a staff member, namely the disciplinary penalty of removal from post provided for in Article 9(1)(h) of Annex IX to the Staff Regulations or the termination of employment without notice on disciplinary grounds in serious cases of failure of that staff member to comply with their obligations, as provided for in Article 49(1) of the CEOS.

34 In his observations under Article 217(1) of the Rules of Procedure, the applicant also refers to the judgment of 23 October 2013, Gomes Moreira v ECDC (F‑80/11, EU:F:2013:159), which, it is claimed, confirms that the administration may not suspend in law, as in the case decided by that judgment, or in fact, as in the present case, a staff member from his duties during a notice period other than in disciplinary proceedings.

35 The claim for compensation is addressed in paragraphs 324 to 330 of the ECDC’s defence before the Civil Service Tribunal and, on referral, in paragraphs 129 to 136, 180 to 209 and 281 to 285 of that pleading. The ECDC disputes, in particular, the merits of the claim for compensation.

36 In that regard, the ECDC disputes, first of all, the allegation that the termination decision amounted to a disguised disciplinary sanction. It points out that, according to the case-law, in the event of wrongful conduct justifying the dismissal of a member of the temporary staff, the authority empowered to conclude contracts of employment (‘the AECE’) has the option of unilaterally terminating the contract for an indefinite period of the staff member concerned, pursuant to Article 47(c) of the CEOS, rather than deciding to initiate disciplinary proceedings, which would only be required in the event of dismissal without notice pursuant to Article 49(1) of the CEOS. It follows from the ECDC’s submissions that that case-law is applicable by analogy to the termination of a fixed-term contract, pursuant to Article 47(b)(ii) of the CEOS.

37 Secondly, the existence of two months’ notice, it is contended, in itself contradicts the applicant’s allegation that he was subject to summary dismissal. That notice was, moreover, effective, because certain tasks were assigned to him, namely to prepare a handover file for the 10 files in progress and to produce a work log, tasks which he refused to carry out and which made it impossible to assign other tasks to him.

38 In its observations under Article 217(1) of the Rules of Procedure, the ECDC also refers to the judgment of 23 October 2013, Gomes Moreira v ECDC (F‑80/11, EU:F:2013:159), also relied on by the applicant. It follows from that judgment that, having regard to its power to determine the administrative functions of an agent, an administration which has decided to terminate with notice the contract of a staff member as a result of wrongdoing justifying dismissal may, in the termination decision, make specific adjustments to the working arrangements during the notice period in a reasoned manner, such as, in the present case, the request that the agent perform from his home the tasks assigned to him by his line manager. In that regard, the ECDC states that the applicant refused to do so, on the grounds that he did not have the ergonomic facilities or social contact at home and that that request was unlawful.

39 That notice implementation measure as well as the others, namely the deactivation of the applicant’s email account and the prohibition of contact, active or passive, with other members of staff and third parties with regard to matters relating to the ECDC, was, it is contended, particularly justified in the present case. The ECDC points out, in that regard, that the termination decision was motivated by the irreparable breakdown in the relationship of trust between the ECDC and the applicant as a result of the latter’s behaviour and maintains that the merits of that ground were recognised by the Civil Service Tribunal, whose decision in that regard was not criticised by the judgment on appeal. The disputed terms of notice were intended to avoid prolonging the disruption linked to that behaviour.

40 The General Court notes that it follows from the original judgment, in particular the responses given by the Civil Service Tribunal to the 1st, 9th, 11th, 12th and 13th pleas submitted by the applicant in Case F‑159/12 in support of its claims for annulment of the termination decision, and from the judgment on appeal, in so far as it rejected the applicant’s grounds of appeal with regard to those responses, that the Civil Service Tribunal held that the ECDC’s decision to terminate the applicant’s contract as a member of the staff in accordance with Article 47(b)(ii) of the CEOS, and therefore with prior notice was, in principle, lawful, but that the termination decision was unlawful because, before adopting it, the AECE of the ECDC, although it had heard the applicant regarding the materiality and the imputability to the latter of the facts, had not heard him about the consequences that it intended to draw from the behaviour of which he was accused.

41 However, the consequences that the AECE of the ECDC intended to draw from the applicant’s behaviour and from the breakdown in the relationship of trust that had resulted therefrom consisted, it is true, mainly of the termination of the applicant’s contract as a member of the contract staff on the basis of Article 47(b)(ii) of the CEOS, but also, subsidiarily, of the notice adjustments envisaged in so far as they potentially involved an unfavourable change in the working conditions of the person concerned.

42 In that regard, it must first be pointed out that, although Article 47(b)(ii) 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 (see, to that effect, judgment of 10 July 2014, CG v EIB, F‑95/11 and F‑36/12, EU:F:2014:188, paragraph 90 and the case-law cited), including for staff members who are serving in a notice period.

43 Accordingly, where, in a case of misconduct such as to justify the dismissal of a member of staff, the AECE decides to terminate that person’s contract with notice instead of initiating disciplinary proceedings against him, the onus is on the AECE, under its power to determine the administrative duties which the member of staff concerned must perform during that notice period, to inform him, giving reasons, in the text of the decision terminating the contract, if he is to abstain from performing certain specific duties (see, to that effect, judgment of 23 October 2013, Gomes Moreira v ECDC, F‑80/11, EU:F:2013:159, paragraph 53).

44 In the second place, the right to be heard, which forms an integral part of respect for the rights of the defence (see judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 28 and the case-law cited), is enshrined, inter alia, in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, according to which the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken. In accordance with that principle, which applies where the administration is minded to adopt a measure which will adversely affect an individual, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views, even where the applicable legislation does not expressly provide for such a procedural requirement (see judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 29, 31 and 39 and the case-law cited, and of 5 October 2016, ECDC v CJ, T‑395/15 P, not published, EU:T:2016:598, paragraph 55).

45 In the third place, it has already been held that the AECE cannot change the place of employment of a member of the temporary staff in the interests of the service without that staff member being heard in that regard (see, to that effect, judgment of 11 April 2016, FN and Others v CEPOL, under appeal, F‑41/15 DISS II, EU:F:2016:70, paragraph 72). Such a change is likely to adversely affect the private life of the official or staff member concerned. The same is true in a situation where, as in the present case, the administration considers requiring a member of the contract staff to perform his work at home. Such a situation may involve inconvenience for the staff member concerned, or even be impossible to implement having regard to his housing conditions.

46 Furthermore, it must be noted that it is apparent from the Staff Regulations in particular that an official or other member of the European Union’s staff is connected to the institution to which he belongs by a legal relationship of employment involving a balance of specific reciprocal rights and obligations (see, to that effect, judgment of 12 July 2012, Commission v Nanopoulos, T‑308/10 P, EU:T:2012:370, paragraph 103 and the case-law cited). Among the fundamental obligations of the administration as an employer is that of providing the officials and other staff it employs with the means necessary to perform their work, the first and foremost of which consists of the work infrastructure.

47 While, admittedly, teleworking is an advantage for the officials and other staff who request it, it cannot be assumed that that is the case when it is imposed outside of the contractual terms. In that regard, it should be noted that the ECDC did not contend that the applicant’s contract provided for the possibility that he could be required to work from home. Consequently, in the circumstances of the present case, while the ECDC was authorised to change the applicant’s administrative functions during the notice period, it could not, in principle, require the applicant to carry out his work during that period from his home.

48 In any event, such a measure could not be adopted without having first heard the applicant, in the first place in order to ensure that that adjustment to the notice period was accepted by the applicant and was feasible. In that regard, it should be noted 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 personal circumstances, as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see judgment of 5 October 2016, ECDC v CJ, T‑395/15 P, not published, EU:T:2016:598, paragraph 62 and the case-law cited).

49 Furthermore, while an infringement of the right to be heard results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79 and the case-law cited, and of 5 October 2016, ECDC v CJ, T‑395/15 P, not published, EU:T:2016:598, paragraph 72), it must be held, in the present case, that the possibility that the applicant did not agree to work under conditions not provided for in his contract or did not have, at home, the necessary facilities to carry out his work under good conditions could have led the ECDC to consider alternative working arrangements during the notice period.

50 In that regard, the ECDC cannot justify the decision to impose the disputed terms of notice by arguing that, having regard to the facts which led to the termination decision, requiring the applicant to work at home was necessarily the only way of arranging the notice period in the interest of the service.

51 Without infringing the AECE’s power, where there is wrongful conduct capable of justifying the dismissal of a staff member, to unilaterally terminate the contract provided for in Article 47(b)(ii) or (c)(i) of the CEOS rather than initiate disciplinary proceedings against that staff member (see, to that effect, judgments of 7 July 2011, Longinidis v Cedefop, T‑283/08 P, EU:T:2011:338, paragraphs 101 and 102, and of 23 October 2013, Gomes Moreira v ECDC, F‑80/11, EU:F:2013:159, paragraph 49), it must be considered, nevertheless, that the decision, in such circumstances, to terminate the contract makes it necessary to comply with a notice requirement that constitutes a central element of those provisions. Therefore, if the AECE considers that the deficiencies which it alleges against a staff member preclude the continued performance, under normal conditions, of his contract during a notice period, it must draw the appropriate conclusions from this and, therefore, initiate disciplinary proceedings while adopting a suspension measure, in accordance with Article 49(1) of the CEOS, unless the person concerned has been duly exempted from the performance of his duties.

52 Finally, it should be pointed out that the third complaint in the first plea submitted by the applicant in Case F‑159/12, in support of his claim for annulment of the termination decision, was based on infringement of the right to be heard with regard to the consequences that the AECE of the ECDC intended to draw from the facts alleged against him, namely the termination of his contract pursuant to Article 47(b)(ii) of the CEOS, which includes the terms of notice. In any event, it follows from the case-law that observance of the rights of the defence, in which the right to be heard is inherent, is an essential procedural requirement, breach of which may be raised by the Court of its own motion (see judgment of 5 February 2016, GV v EEAS, F‑137/14, EU:F:2016:14, paragraph 67 and the case-law cited).

53 Consequently, it must be held that the ECDC’s decision to require the applicant to work at home during the notice period provided for in the termination decision was unlawful, without it being necessary to consider the question whether the tasks assigned to him during that period, namely the preparation of a handover file and the keeping of a work log, corresponded to actual work.

54 The applicant alleges that the ECDC’s decision regarding the adjustments to the notice period provided for in the termination decision harmed his professional honour and reputation in that it gave the termination of his contract with notice, pursuant to Article 47(b)(ii) of the CEOS, the appearance of summary dismissal without notice on grounds of serious misconduct, as provided for in Article 49 of the CEOS. His family members, most of his ECDC colleagues and everyone who received the email generated by his email account had, it is claimed, been informed of this, as well as potential employers he contacted and to whom a pre-contractual duty of loyalty required him to give full information regarding the termination of his contract with the ECDC. He quantifies ex æquo et bono the damage incurred in this regard in the amount of ‘at least’ EUR 20 000, requesting the Court to ensure that the compensation granted to him has a dissuasive effect on the ECDC, in view of the habitual manner in which the latter terminates staff contracts under Article 47(b)(ii) of the CEOS while circumventing the obligation to observe the genuine notice period required under that provision.

55 As regards the existence of damage, the ECDC contends, first, that the adjustments decided for the notice period were directly related to the facts alleged against the applicant, the reality and relevance of which as a ground for termination of his contract as a member of the contract staff were noted by the Civil Service Tribunal, so that, if it resulted in harm to the applicant, he himself was the author of that harm. Secondly, the applicant could not attribute to the ECDC the fact that third parties, whether family members or potential employers, had become aware of the termination decision, since that information had been communicated to those third parties by the applicant himself.

56 In that regard, it should be pointed out, in the first place, that the ECDC cannot validly attribute the harm to the applicant, resulting from the terms of notice which were imposed on him, to the conduct of the latter which led to the termination of his contract, since it is clear from the findings in paragraphs 48 to 53 above that the ECDC decision establishing those terms was unlawful. The contention that that behaviour could have given rise to the initiation of disciplinary proceedings is not relevant, since the ECDC specifically chose not to initiate such a procedure.

57 In the second place, the termination decision, in so far as it included a ban on working in ECDC premises from the day following its notification until the end of the notice period and the deactivation, in practice, of the applicant’s email, had immediate negative effects on him. Furthermore, as the applicant contends, that measure was obvious to the applicant’s colleagues and to anyone who sent an email to the applicant’s email account. Finally, he cannot be criticised for having informed his family of this.

58 By contrast, the information given by the applicant to potential employers regarding the terms of notice was disclosed at his own initiative, without being bound by any duty to inform them in that regard. Therefore, he cannot attribute that fact to the ECDC.

59 It follows from all those factors that the ECDC’s unlawful decision concerning the adjustments to the notice period relating to the termination of the applicant’s contract as a member of the contract staff caused him, as he claims, non-material damage due to unjustified damage to his honour and reputation with his former work colleagues and family members, in the light of the legal remedy chosen by the ECDC.

60 That said, although the annulment of an unlawful act, such as the termination decision, may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material damage which that measure may have caused, that is not the case where the applicant shows that he has sustained non-material damage that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 131, and of 19 May 2015, Brune v Commission, F‑59/14, EU:F:2015:50, paragraph 80).

61 In the present case, the annulment of the termination decision handed down in the original judgment in 2015 was not, as such, likely to compensate in full the non-monetary harm resulting, for the applicant, from the unlawful terms of notice imposed on him, since that decision had, in that regard, specific, immediate and manifest negative effects on the applicant’s situation, since, inter alia, he was forbidden to have free access to the ECDC premises from the day after he was notified of that decision.

62 In the circumstances of the present case, the Court considers that a fair assessment of the non-material damage suffered by the applicant is to set compensation, ex aequo et bono, at EUR 2 000.

63 The ECDC must therefore be ordered to pay the applicant EUR 2 000 in respect of non-material damage suffered as a result of the unlawful adjustments made to the notice period provided for in the termination decision.

64 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under paragraph 3 of that article, where each party succeeds on some and fails on other heads, the parties are to bear their own costs, unless it appears justified in the circumstances of the case that one party, in addition to bearing its own costs, should pay a proportion of the costs of the other party.

65 In the present case, it must be held that, since the parties have succeeded on some and failed on other heads, each party must bear its own costs.

1. Orders the European Centre for Disease Prevention and Control (ECDC) to pay CJ, in respect of non-material damage, the sum of EUR 2 000;

3. Orders CJ and the ECDC to bear their own costs in the original proceedings before the European Union Civil Service Tribunal in Case F‑161/12, the appeal proceedings in Case T‑370/15 P and the present proceedings on referral.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CJ v ECDC (Civil service - Members of the contract staff - Fixed-term contract - Early termination : Judgment) [2017] EUECJ T-703/16 (13 December 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T70316.html Cite as: [2017] EUECJ T-703/16, ECLI:EU:T:2017:892, EU:T:2017:892

Court of Justice of the European Communities (including Court of First Instance Decisions)