CJ v ECDC (Staff Regulations of officials and Conditions of Employment of other servants - European Centre for Disease Prevention and Control - Judgment) [2019] EUECJ C-170/18P (15 May 2019)

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(Appeal — Civil service — Contract staff — European Centre for Disease Prevention and Control — Fixed-term contract — Termination of the contract — Compliance with a judgment of the European Union Civil Service Tribunal — Res judicata by means of a judgment annulling a decision — Limits)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 March 2018,

CJ, residing in Agios Stefanos (Greece), represented by V. Kolias, dikigoros,

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, avocats,

composed of J.-C. Bonichot (Rapporteur), President of the Chamber, C. Toader, A. Rosas, L. Bay Larsen and M. Safjan, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By his appeal, CJ requests the Court to set aside the judgment of the General Court of the European Union of 13 December 2017, CJ v ECDC (T–692/16, not published, ‘the judgment under appeal’, EU:T:2017:894), by which the General Court: (i) dismissed his action for annulment of the decision of 2 December 2015 of the European Centre for Disease Prevention and Control (ECDC) to terminate his contract as a member of the contract staff (‘the decision at issue’), and for compensation for the harm suffered and; (ii) ordered CJ to pay the costs.

2 CJ was recruited by the ECDC on 1 January 2010 as a member of the contract staff, for a period of five years, as a ‘legal assistant’ within the ‘Legal and Procurement Section’ of the ‘Resource Management and Coordination Unit’ of that centre.

3 At the end of 2011, he drew the attention of the director of the ECDC to what, in his view, were irregularities in the recruitment of an interim legal adviser by his line manager. The director forwarded that information to the European Anti-Fraud Office (OLAF), which decided not to open an investigation in view of the weakness of the evidence of irregularities.

4 By decision of the director of the ECDC, which was communicated to him on 24 February 2012, CJ’s contract as a member of the contract staff was terminated with effect from 1 May 2012 under Article 47(b)(ii) of the Conditions of Employment of Other Servants of the European Union (‘the initial termination decision’). That decision comprised 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 period of the contract that was not completed.

5 As the General Court stated in paragraph 5 of the judgment under appeal, the initial termination decision was based, first, on the irreparable breakdown in the relationship of trust between the appellant and the director and other ECDC staff members, and secondly, on the ‘persistent insubordination of the [appellant], characterised by serious difficulties in accepting management decisions, repeated refusals to perform tasks entrusted to him as well as obstructive and provocative behaviour’.

6 CJ brought two actions before the European Union Civil Service Tribunal seeking, respectively, annulment of the initial termination decision and an order requiring the ECDC to compensate him for the damage suffered. By judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), that court annulled the initial termination decision having upheld the plea alleging infringement of the right of the person concerned to be heard with regard to the action that the competent authority intended to take as a result of his behaviour. The Civil Service Tribunal rejected the other pleas in the action for annulment and dismissed the action for damages.

7 The appeal brought by the ECDC against that judgment was dismissed by judgment of the General Court of 5 October 2016, ECDC v CJ (T‑395/15 P, not published, EU:T:2016:598). CJ also brought an appeal against that judgment of the Civil Service Tribunal, which the General Court did, however, by judgment of 5 October 2016, CJ v ECDC (T‑370/15 P, not published, EU:T:2016:599), set aside, in so far as that judgment rejected the claim for compensation for non-material damage, having found that the Civil Service Tribunal had failed to rule on the damage which the appellant claimed to have suffered on account of the circumstances in which the period of notice took place and, in particular, because he had been denied access to the ECDC’s premises and the possibility of contacting his colleagues during that period. Consequently, the General Court referred the examination of CJ’s claim for compensation to another Chamber of that court. By judgment of 13 December 2017, CJ v ECDC (T‑703/16 RENV, not published, EU:T:2017:892), the General Court ordered the ECDC to pay CJ EUR 2 000 in compensation for his non-material damage.

8 Following the annulment of the initial termination decision, the ECDC informed CJ, by letter of 19 May 2015, of its intention to adopt a new decision with regard to early termination of his contract as a member of the contract staff, with retroactive effect as of 30 April 2012, on account of the irreparable breakdown in the relationship of trust, and requested that he submit his observations. After CJ submitted his observations in that regard by email of 31 May 2015, the director of the ECDC terminated that contract by the decision at issue.

9 On 27 September 2016, CJ lodged an application with the General Court for revision of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), in so far as, by that judgment, the Civil Service Tribunal held that CJ had acted in an insubordinate and provocative manner which justified the termination of his contract. He claimed that the revelation of a new fact was such as to cast doubt on the assessment which had been made of his behaviour. The line manager, whose competence he had questioned and whose instructions he was accused of not having followed, had provided incorrect information to the ECDC in respect of her experience and her professional skills at the time of her own recruitment. The General Court rejected the application for revision as inadmissible by order of 27 April 2017, CJ v ECDC (T‑696/16 REV and T‑697/16 REV, not published, EU:T:2017:318).

10 By application lodged at the Court Registry on 27 September 2016, CJ sought the annulment of the decision at issue and an order that the ECDC pay compensation for his material and non-material damage.

12 By his appeal, CJ claims that the Court should: (i) set aside the judgment under appeal; (ii) annul the decision at issue; (iii) award him the remuneration and financial compensation claimed before the General Court and; (iv) order the ECDC to pay the costs of the proceedings at first instance and on appeal.

13 The ECDC contends that the appeal should be dismissed and that CJ be ordered to pay the costs.

14 The ECDC requests the Court to reject as inadmissible the ‘preliminary observations’ set out in the appeal, by which CJ: (i) claims that certain appointments of staff members within the ECDC were unlawful and, more generally, that the system of recruitment for members of staff through service contracts used by that centre is unlawful and; (ii) reiterates his willingness, expressed before the General Court, to find an amicable solution to all the disputes between the parties.

15 It is apparent from reading the appeal that, the considerations set out under the heading ‘Preliminary observations’ include neither heads of claim, nor grounds of appeal, and seek only to explain the general context of the dispute from CJ’s point of view. In those circumstances, the Court cannot find those observations inadmissible, a finding which, moreover, would have no practical effect.

16 The pleas of partial inadmissibility raised by ECDC must therefore be rejected.

18 CJ criticises the answer given by the General Court to the first part of the first plea in the application at first instance. The appellant reiterates that he had submitted that, as a result of two new developments which occurred between the initial termination decision and the decision at issue, the latter cannot have had a retroactive effect on the former. The first new development concerns the financial stake relating to the remuneration due for the period from 1 May 2012 to 31 December 2014, namely from the effective date of the initial termination decision to the scheduled end-date of his contract, and the second new development concerns the fact that the persons who were responsible for the initial termination decision, namely the director of the ECDC and the appellant’s line manager Ms B, were no longer members of staff of the ECDC on the date the decision at issue was made.

19 As regards the first development, CJ criticises the General Court, in the first place, for misinterpreting his arguments. Although he had argued before the General Court that the financial stake necessarily influenced the assessment of the ECDC in 2015, the General Court stated, in paragraph 71 of the judgment under appeal, that, according to the appellant’s line of argument, that motive precluded the existence of any other motive. In the second place, the General Court erred: (i) in considering, in paragraph 74 of the judgment under appeal, that the financial stake did not constitute a motive for the decision at issue, but was a consequence of that decision and; (ii) in finding, in paragraph 96 of the judgment under appeal, that that decision was based on other considerations. In the third place, the General Court allegedly erred in the legal characterisation of the facts by accepting that the ECDC had been able to place itself in the situation which prevailed on the date of the initial termination decision in order to adopt the decision at issue, whereas the reasoning for the latter was inevitably different.

20 As regards the second development, resulting from the fact that the two persons responsible for the initial termination decision had left the ECDC in 2015, the General Court held that that development could not justify the reinstatement of the appellant, in so far as the adoption of the initial termination decision was the consequence of CJ’s relationship ‘with all the staff members of the ECDC’. In that regard, it is submitted that the General Court distorted the evidence in the case-file or, at the very least, characterised the facts incorrectly, in so far as he submits that it was not established that CJ was ‘insubordinate to all the staff members of ECDC’. In particular, on the assumption that the appraisal report of 12 August 2014 will be annulled by the Court in the pending case C‑139/18 P (CJ v ECDC), the appellant claims that it must be held that the General Court cannot rely on that report.

22 In the first place, it should be noted that the General Court did not rule, in paragraph 71 of the judgment under appeal to which the appellant refers, on the merits of the reasons on which the decision at issue is based, contrary to what the appellant claims. The General Court merely stated in that paragraph that the fact that an institution may gain a financial advantage from a decision to terminate a contract is not sufficient to support the presumption that that decision was adopted for the purpose of obtaining that advantage. The first complaint must therefore be rejected.

23 In the second place, the General Court held, in paragraph 74 of the judgment under appeal to which the appellant refers, that the fact that there may or may not be a remuneration debt depends on the decision adopted to replace the initial termination decision and that, as the case may be, that debt must merely be regarded as a consequence of that new decision. CJ criticises that assessment in so far as it fails to find that, in the present case, the financial stake constituted a motive for the decision at issue. It should be borne in mind, however, that it is not for the Court of Justice to review the assessment of the facts made by the General Court in the context of an appeal, except where the facts have been distorted, which was not raised in support of that complaint (see, to that effect, order of 16 September 2010, Dominio de la Vega v OHIM, C‑459/09 P, not published, EU:C:2010:533, paragraph 44). The second complaint must therefore be rejected as inadmissible.

24 In the third place, although the appellant criticises the General Court –– without, however, specifying the paragraph of the judgment under appeal to which he refers –– for finding that the change in factual circumstances since the initial termination decision, which was annulled by the Civil Service Tribunal, did not prevent the ECDC from placing itself in the situation that prevailed on the date of that decision in order to adopt the decision at issue, he does not indicate in what way that legal characterisation of the facts is incorrect.

25 In the fourth place, CJ criticises the General Court for distorting the evidence in the case-file or, at the very least, for characterising facts incorrectly, by taking the view, in paragraph 58 of the judgment under appeal, that CJ had been ‘insubordinate to all the staff members of ECDC’.

26 It should be noted, however, that that complaint is based on a misreading of the judgment under appeal, in so far as the General Court did not rule, in paragraph 58 thereof, on the precise details of the insubordination alleged against CJ, but on the consequences of that behaviour, by holding, in essence, that the ‘breakdown in the relationship of trust’ with the appellant did not exclusively concern two persons who had ceased to hold office within the ECDC before the adoption of the decision at issue.

27 Lastly, although CJ submits that it should be held that the General Court could not rely on his appraisal report of 12 August 2014 if that report –– which is the subject matter of another case pending before the Court (C‑139/18 P, CJ v ECDC) –– is annulled, he does not, in any event, state in which paragraph of the judgment under appeal the General Court relied on that report and, therefore, does not enable the Court of Justice to assess the merits of his argument. That complaint must therefore be rejected as inadmissible.

28 It follows from the foregoing that the first ground of appeal must be rejected.

29 CJ criticises the answer given by the General Court to the second part of the first plea in the application at first instance, by which he alleged that the termination of the contract by the decision at issue was disproportionate. CJ states that the initial termination decision had achieved its purpose, which was to restore, until the end of his contract, scheduled for 31 December 2014, the proper functioning of the service which had allegedly been undermined by his insubordination.

30 In the first place, CJ submits that the General Court distorted his pleadings, in paragraphs 76 and 95 of the judgment under appeal, by finding that he had submitted that the object of the decision at issue was to restore the proper functioning of the service and to relieve the ECDC of a remuneration debt, whereas he had merely noted in his application that the initial termination decision was intended to restore the proper functioning of the service which had allegedly been compromised by his behaviour. Furthermore, the General Court confused the objective of the decision at issue with its substance by holding, in paragraph 88 of the judgment under appeal, that the objective of that decision was to ‘draw the appropriate contractual consequences from the irreparable breakdown of the trust between the ECDC and the [appellant]’. Finally, the General Court erred in its interpretation of Article 266 TFEU by accepting that the ECDC was able to give the decision at issue an objective which was different from that of the initial termination decision. According to CJ, that provision requires the decision at issue to pursue the same objective as the initial termination decision.

31 In the second place, CJ submits that the ECDC could have adopted a measure which was less stringent and less punitive for him and his dependants. The appellant claims that, in assessing the necessity of terminating the contract afresh, the ECDC should have taken into account: (i) its obligation to protect whistle-blowers; (ii) the financial and professional consequences of such a termination for CJ, in particular the difficulty of finding a new job in Greece, his country of origin, in the light of the significant deterioration in the economic situation in that country; and, lastly, (iii) the fact that CJ has dependent family members. According to CJ, it is apparent from paragraph 91 of the judgment under appeal that the General Court did not take CJ’s circumstances into account adequately but distorted the evidence and, in any event, erred in the legal characterisation of the facts.

32 In the third place, the appellant submits that the General Court erred in law, in paragraph 92 of the judgment under appeal, in finding that, given that the appellant failed to propose solutions other than the termination of his contract, the ECDC was not required to consider those solutions. The appellant claims that the principle of proportionality required the ECDC to consider, on its own initiative, whether less stringent measures could have been taken. The General Court thus misinterpreted that principle and, in the alternative, erred in the legal characterisation of the facts. The General Court added to that error of law by also erring in its account of the facts, because CJ had in fact proposed a solution other than his contract being terminated afresh.

33 In the fourth place, the appellant maintains that the General Court also distorted the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), in finding that the Civil Service Tribunal had held that the solution proposed by CJ to the termination of his contract was unacceptable, when that court merely held that the ECDC had not considered any other response to the appellant’s insubordination other than the termination of his contract.

34 In the fifth place, it is submitted that the General Court, in paragraph 93 of the judgment under appeal, failed in its legal characterisation of the facts, in holding that the ‘irreparable breakdown in the relationship of trust’ required the appellant’s contract to be terminated, whereas, in view of the scheduled end date of that contract being 31 December 2014, contractual relations would not, in fact, have been resumed, even in the absence of a fresh termination of his contract. A less stringent measure in respect of CJ could therefore have been considered.

36 In the first place, the complaint alleging that, in paragraphs 76 and 95 of the judgment under appeal, the General Court misread the written submissions before it is has no factual basis. Contrary to what is alleged, in essence, by CJ, the General Court, in paragraph 76 of the judgment under appeal, did not add to the arguments of the second part of the first plea, but reproduced, in conjunction with that argument, the wording of the second and third parts of the first plea which were previously set out separately in paragraphs 63 and 64 of the judgment under appeal. Furthermore, in paragraphs 95 and 96 of the judgment under appeal, the General Court rejected the second and third parts of the first plea, respectively, holding that the objective of the decision at issue was neither to restore the proper functioning of the service nor to deprive CJ of the remuneration which he would have received if his contract had continued until the scheduled end date.

37 By contrast, the General Court held, in paragraph 88 of the judgment under appeal, that the main objective of the decision at issue was to draw the appropriate contractual consequences from the irreparable breakdown in the relationship of trust between the ECDC and the appellant. Consequently, the complaint that the General Court confused, in that respect, the substance and the objective of the decision at issue –– which, moreover, are not mentioned in that paragraph –– is entirely irrelevant and must therefore be rejected.

38 Lastly, Article 266 TFEU, which provides that the institution whose act has been declared void is to take the necessary measures to comply with the judgment annulling that act, in no way requires, in any event, that the decision taken, as the case may be, to replace a decision annulled has the same objective as the previous decision. Consequently, the argument based on that interpretation of Article 266 TFEU must be rejected.

39 In the second place, the assessment of the facts and evidence does not, save where the facts or evidence are distorted, constitute a point of law, which is subject, as such, to review by the Court of Justice on appeal (judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49). Such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence (judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 50).

40 It is apparent from the case-law referred to in the preceding paragraph that CJ’s criticism of the assessment of the facts made by the General Court, in paragraph 91 of the judgment under appeal, of the consequences of the decision at issue for his personal situation is inadmissible in the context of an appeal. Although CJ also alleges that the evidence was distorted, he does not substantiate that complaint with any details concerning, in particular, that evidence. Similarly, the allegation of an error in the legal characterisation of the facts vitiating the judgment under appeal must be rejected where there is no indication enabling the merits of that argument to be assessed.

41 Furthermore, the General Court cannot validly be criticised for having erred in finding, in paragraph 91 of the judgment under appeal, that the deterioration in the economic situation in Greece was a development which came about after the date of the initial termination decision. The determination of the date from which the evidence relied on by the appellant could be considered as proven, constitutes, in any event, an assessment of fact by the General Court, which is not for the Court to review in the context of an appeal, save where the facts have been distorted, which has not been invoked in support of that complaint (see, to that effect, order of 16 September 2010, Dominio de la Vega v OHIM, C‑459/09, not published, EU:C:2010:533, paragraph 44).

42 In the third place, the argument alleging an error of law and, in the alternative, an error in the legal characterisation of the facts, which the General Court is alleged to have committed, in paragraph 92 of the judgment under appeal, has no factual basis. The appellant is mistaken in his reading of that paragraph in maintaining that the General Court found that ECDC was not required to consider measures other than the termination of his contract. In the first sentence of that paragraph, the General Court recalled the content of the email sent by CJ on 21 May 2015, pointing out that the email had merely stated that solutions other than the termination of his contract should be considered, without giving further details in that regard. Although the appellant submits that that presentation of the facts is incorrect, given that he allegedly proposed an alternative measure, it is apparent from the application at first instance itself that that proposal was included in the appellant’s complaint of 29 February 2016, which was made against the decision at issue, and not in the email of 31 May 2015. Thus, the appellant has no grounds for maintaining that paragraph 92 of the judgment under appeal is vitiated by an error of law, an error in the legal characterisation or even a distortion of the facts.

43 In the fourth place, although the appellant also alleges that, in paragraph 92 of the judgment under appeal, the General Court distorted the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), he attributes to the General Court what was, in fact, held by the European Union Civil Service Tribunal in paragraph 128 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), namely that the ECDC ‘[had] not consider[ed] any solution to the insubordination found to have been committed by the [appellant] other than the termination of his contract’. On account of its inconsistency, such a ground of appeal must be rejected.

44 In the fifth place, it should be stated that, in paragraph 93 of the judgment under appeal, the General Court did not hold that the termination of CJ’s contract was the only appropriate measure, as the appellant wrongly claims, but only that the decision at issue was not vitiated by a manifest error of assessment or disproportionate. The complaint raised by the appellant in respect of that paragraph is thus based on a misreading of that judgment and therefore cannot succeed.

45 It follows from the foregoing that the second ground of appeal must be rejected in its entirety.

46 CJ criticises the answer given by the General Court in the judgment under appeal to the fourth part of the first plea in the application at first instance, by which he alleged that the termination of his contract for insubordination was not justified, as allegedly evidenced by the 2014 revelations concerning the conduct of his line manager. He criticises the General Court for having, in essence, held, in the judgment under appeal, that the finding of insubordination had acquired the force of res judicata.

47 On the contrary, CJ submits that compliance with the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), required the ECDC, if it was considering a fresh termination of the appellant’s contract, to hear him in respect of that measure and to give him the opportunity to put forward arguments which he had not submitted before the adoption of the initial termination decision. Consequently, the ECDC should have fully reviewed the facts in order to strike a balance between the advantages and disadvantages relating to a fresh termination of his contract, for both the service and the ECDC itself. Given that the Civil Service Tribunal merely found that the ECDC had not committed a manifest error of assessment, the ECDC could have made a different assessment of the facts. The appellant claims that the General Court erred in law and was mistaken as to the scope of the force of res judicata by stating, in paragraphs 47, 53 and 55 of the judgment under appeal, that the finding that CJ had been insubordinate had the force of res judicata following the: (i) judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38); (ii) the judgment of the General Court of 5 October 2016, CJ v ECDC (T‑370/15 P, not published, EU:T:2016:599); and (iii) the order of the General Court of 27 April 2017, CJ v ECDC (T‑696/16 REV and T‑697/16 REV, not published, EU:T:2017:318). The appellant submits, in the alternative, that the General Court characterised the facts incorrectly.

49 As a preliminary point, it should be borne in mind that the force of res judicata extends only to the grounds of a judgment which constitute the necessary support of its operative part and are, therefore, inseparable from it (see, to that effect, judgments of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 54, and of 15 November 2012, Gothaer Allgemeine Versicherung and Others, C‑456/11, EU:C:2012:719, paragraph 40).

50 Therefore, where a European Union Court annuls a decision, the grounds on which that court has rejected certain arguments put forward by the parties do not have the force of res judicata (see, to that effect, judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 49, and of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C‑84/17 P, C‑85/17 P and C‑95/17 P, EU:C:2018:596, paragraphs 52 and 53).

51 In the present case, in its judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38) –– which became final following the judgments of 5 October 2016, ECDC v CJ (T‑395/15 P, not published, EU:T:2016:598), and of 5 October 2016, CJ v ECDC (T‑370/15 P, not published, EU:T:2016:599) –– the Civil Service Tribunal, in so far as it ruled on the application for annulment of the initial termination decision, annulled that decision on the ground that CJ’s right to be heard on the consequences which the competent authority intended to draw from his conduct had been infringed. On the other hand, it rejected the other pleas in law, in particular, the appellant’s challenge of the merits of that decision.

52 Nevertheless, the General Court stated, in paragraph 53 of the judgment under appeal, that ‘it [had been] definitively held [by the Civil Service Tribunal] that the [appellant] had serious difficulty in accepting the management decisions and had behaved provocatively, resulting in the abovementioned irreparable breakdown in the relationship of trust’, before concluding, in paragraph 55 of the judgment under appeal, that ‘the appellant cannot call into question the reality of that breakdown or the reasons for it, as such a challenge would contradict the binding effect of res judicata attached to the annulment judgment’.

53 The General Court thus held, disregarding the case-law referred to in paragraph 50 of the present judgment, that the grounds, on the basis of which the Civil Service Tribunal had rejected certain pleas raised in the application at first instance, had the force of res judicata. The General Court was therefore mistaken as to the scope of the force of res judicata, as the appellant claims.

54 Furthermore, the General Court held, in paragraphs 53 to 55 of the judgment under appeal, that, due to the ground for the annulment of the initial termination decision, the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38) only affected the second part of that decision, namely the termination of CJ’s contract. By contrast, the General Court found that the first part of that decision, namely the finding that there has been an irreparable breakdown in the relationship of trust between CJ and the director and other staff members of the ECDC, must, according to the judgment under appeal, ‘be definitively regarded as lawful’ and could no longer be called into question by the appellant when challenging the decision at issue, which was confirmatory in that regard.

55 However, it is apparent from the operative part of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), that the Civil Service Tribunal annulled the initial termination decision in its entirety and did not uphold any part of that decision. Consequently, since the ECDC, which is the competent authority, was considering terminating CJ’s contract again, it was for the ECDC to carry out a new full review of the facts and to assess afresh the consequences to be drawn from that judgment after hearing the person concerned. By holding that the ECDC was not required to carry out such a review or assessment for the purposes of terminating CJ’s contract, the General Court therefore committed a second error of law, as the appellant rightly claims.

56 However, it should be recalled that, in accordance with the case-law of the Court, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of its judgment, any defects that vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (judgment of 29 April 2004, Commission v CAS Succhi di Frutta, C–496/99 P, EU:C:2004:236, paragraph 68, and order of 30 June 2016, Slovenská pošta v Commission, C‑293/15 P, not published, EU:C:2016:511, paragraph 46).

57 In the present case, it is true that the two errors of law, referred to in paragraphs 53 and 55 of the present judgment, led the General Court to consider that CJ could not challenge –– by reason of the force of res judicata of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38) –– the merits of the decision at issue.

58 Nevertheless, it must be noted that, in paragraph 59 of the judgment under appeal, the General Court also examined the substance of the evidence relied on by the appellant in support of the fourth part of the first plea in the application at first instance. The General Court held that the disclosure of allegedly false information –– provided by CJ’s line manager at the ECDC in respect of her experience and professional skills at the time of her own recruitment –– did not call into question either the relevance of the instructions given to CJ by that line manager or, therefore, the existence of the insubordination alleged against him. As it is, CJ’s criticism of that legal characterisation of the facts is not accompanied by any details. It must therefore be rejected.

59 In those circumstances, one of the grounds relied on by the General Court was sufficient in order to reject the fourth part of the first plea in the application at first instance. Consequently, the errors of law concerning the force of res judicata of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), committed by the General Court in the examination of that part of the plea, have no bearing on the operative part of the judgment under appeal. The ground of appeal based on those errors of law is therefore ineffective and must be rejected.

60 The appellant criticises the General Court for not finding that the decision at issue was actually motivated by the desire of the management of the ECDC to retaliate against him because, in denouncing the poor management of the ECDC, he had questioned the director of the ECDC and some of his colleagues.

61 In the first place, the appellant submits that the General Court incorrectly found, in paragraph 106 of the judgment under appeal, that the Civil Service Tribunal had, in its judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), rejected that argument as unjustified, whereas that court had rejected it as inadmissible in paragraph 88 of that judgment. The appellant claims that the General Court therefore could not lawfully refuse to examine the merits of that plea by relying on the force of res judicata.

62 In the second place, CJ criticises the General Court for misinterpreting Article 22a(3) of the Staff Regulations of Officials of the European Union and, in the alternative, for erring in the legal characterisation of the facts by holding, in paragraphs 109 to 112 of the judgment under appeal, that, even if he had acted in good faith as a whistle-blower, he could not rely on the protection provided for in that provision, since the insubordination which he had demonstrated was sufficient to justify the termination of his contract.

63 In the third place, the appellant claims that, by holding, in paragraph 111 of the judgment under appeal, that he had not demonstrated that the adoption of the decision at issue was connected to the fact that he had reported management irregularities within the ECDC, the General Court failed to have regard to the simultaneity of those two circumstances and, as a result, erred in the legal characterisation of the facts.

65 In the first place, although the appellant claims that, in paragraph 106 of the judgment under appeal, the General Court misinterpreted paragraph 88 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), it must be noted that, in paragraph 106 of the judgment under appeal, the General Court expressly referred to paragraph 91 of the judgment of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), and not to paragraph 88 thereof. Moreover, contrary to what the appellant maintains, the General Court, in paragraph 107 of the judgment under appeal, examined and rejected the substance of the plea alleging misuse of powers vitiating the initial termination decision as being insufficiently substantiated. The first complaint therefore has no factual basis.

66 In the second place, it must be stated that, in paragraphs 109 to 112 of the judgment under appeal, the General Court did not hold, contrary to what is submitted by CJ, that he was not entitled to the protection provided for in Article 22a(3) of the Staff Regulations of Officials of the European Union on account of his insubordination. The General Court –– after referring, in paragraph 109 of the judgment under appeal, to the wording of that provision –– held, in paragraph 110 of that judgment, that that provision does not offer an official of the European Union protection against every decision capable of adversely affecting him, but only against decisions closely connected with the accusations made by him and, in paragraph 111, that the appellant had not shown that the decision at issue was related to the reporting, by the person concerned, of management irregularities by CJ. The second complaint therefore also has no factual basis.

67 In the third place, the question of there being a link between CJ reporting irregularities within the ECDC and the decision at issue is one involving the assessment of evidence, which it is not for the Court of Justice to review in an appeal, except where the evidence has been distorted, which has not been alleged in the present case (see, to that effect, order of 30 June 2016, Slovenská pošta v Commission, C‑293/15 P, not published, EU:C:2016:511, paragraph 39).

68 It follows from the foregoing that the fourth ground of appeal must be rejected.

69 CJ submits that, in dismissing his claim for damages based on the harm done to his reputation by the ECDC, having regard to the terms used in the reply to his complaint of 29 February 2016, the General Court was wrong to find that he had not suffered any damage. However, by interpreting his request that the ECDC facilitate his recruitment by other EU institutions or agencies as being intended to ‘interfere in the recruitment procedures of other agencies’ and to ‘promote nepotism’, the ECDC has indisputably insulted him. The General Court therefore erred in the legal characterisation of the facts.

71 It is apparent from the case-file that, in his complaint of 29 February 2016 against the decision at issue, CJ proposed waiving the back pay ––which he considered to be due to him for the period between the date of the initial termination decision and the date corresponding to the scheduled end-date of his contract –– in return for the ECDC promising to facilitate his recruitment by another EU organisation. In its reply to that complaint, the ECDC declined that proposal by stating that it was not possible to ‘facilitate’ his recruitment by another EU agency for several reasons, in particular because ‘it is contrary to the rules of recruitment of agencies to interfere in the recruitment procedures of other agencies and to promote nepotism (which you appear to propose)’.

72 By holding, in paragraphs 123 to 129 of the judgment under appeal, that that reply, which did not contain any error of law, which was carefully drafted and which appeared in a document that was not published, did not amount to unlawful conduct on the part of the ECDC and could not adversely affect CJ’s reputation, the General Court did not err in the legal characterisation of the facts.

74 CJ submits that the General Court distorted the evidence by finding, in paragraph 2 of the judgment under appeal, that he was a ‘legal assistant’ whereas he was, in fact, a ‘legal adviser’.

75 The ECDC submits that CJ fails to explain how that remark could call into question the reasoning adopted by the General Court.

76 Since the exact classification of the post held by the appellant, as set out in paragraph 2 of the judgment under appeal, plays no part in the reasoning adopted by the General Court, the sixth ground of appeal must, in any event, be rejected as ineffective.

77 It follows from all the foregoing considerations that the appeal must be dismissed.

78 Under Article 138(1) of the Rules of Procedure of the Court, which applies to appeal proceedings by virtue of Article 84(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the ECDC has applied for costs to be awarded against CJ and the latter has been unsuccessful, CJ must be ordered to pay the costs.

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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 (Staff Regulations of officials and Conditions of Employment of other servants - European Centre for Disease Prevention and Control - Judgment) [2019] EUECJ C-170/18P (15 May 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C17018P.html Cite as: [2019] EUECJ C-170/18P, ECLI:EU:C:2019:410, EU:C:2019:410

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