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

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

5 October 2016 (*)

(Appeal — Civil service — Member of the contract staff — Fixed-term contract — Termination — Breakdown in the relationship of trust — Right to be heard)

In Case T‑395/15 P,

APPEAL brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), seeking to have that judgment set aside in part,

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

appellant,

the other party to the proceedings being

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

defendant at first instance,

THE GENERAL COURT (Appeal Chamber),

composed of M. Jaeger, President, S. Papasavvas and S. Frimodt Nielsen (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

1        By its appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the European Centre for Disease Prevention and Control (ECDC) seeks to have set aside in part the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 April 2015 in CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38) (‘the judgment under appeal’), by which the Tribunal upheld in part the action in Case F‑159/12 by annulling the decision of 24 February 2012 adopted by the Director of the ECDC terminating CJ’s contract as a member of the contract staff (‘the contested decision’).

 Background to the dispute

2        The background to the dispute is set out in paragraphs 6 to 54 of the judgment under appeal, as follows:

‘6       The applicant was recruited on 1 January 2010 as a member of the contract staff in function group IV, at grade 14, within the Legal and Procurement section [“(the Legal Service)”] of the Resource Management and Coordination unit of the ECDC, as a “legal assistant”, for a period of five years.

7       Due to his heavy workload, in August 2011, the applicant came to an agreement with Ms A, Head of the Resource Management and Coordination unit who at that time was acting as Head of the Legal Service, that he should not work on more than 30 cases simultaneously.

8       On 1 November 2011, Ms B took up her post as Head of the Legal Service, thereby becoming the applicant’s line manager.

9       At the time when Ms B took up her duties, the applicant was on annual leave from which he was due to return on 8 November 2011. That leave was extended, at the applicant’s request, until 18 November 2011.

10      By e-mail of 8 November 2011, Ms B requested the applicant to provide her with a “brief written summary” of the cases he had been working on, specifying which issues he considered to be the most important. Ms B added that she was aware that the applicant was on annual leave, but that it was important for her to have a comprehensive overview of cases currently being handled by the section.

11       The applicant replied to that request by e-mail of 9 November 2011 at 10.29 by asking Ms B whether Ms A had not “formally handed over to you her affairs as acting Head of [the Legal] Section, including the written overviews [he] submitted to, and discussed with, her up until [he] left on holiday in mid-October. …”, stating that he was prepared to re-send those overviews if that were not the case.

12       After returning to the office for two days, the applicant was on sick leave from 23 November to 12 December 2011.

13       By e-mail of 14 December 2011, sent to the applicant at 12.07, Ms B, first, mentioned that she had received a list of cases allocated to the applicant, prepared by the latter in September 2011 for Ms A. Secondly, she stated that she understood that, at that time, the applicant did not feel able to accept further tasks due to his workload. Thirdly, she stated that it was a priority to examine in detail the status of the cases for which the applicant was responsible and asked him to “update [his] list of ongoing tasks, proposing one of the following designations to each task: dormant, urgent ‘quick wins’, urgent and important, … important but not urgent, ongoing …”

14       The applicant replied on the same day, at 14.40, by e-mail, that he assumed that Ms B had not received a formal and detailed “handover note” from Ms A, with whom he had agreed “in August [2011] that he was only to handle up to 30 open cases …”. Furthermore, he noted that he had almost 50 cases open: 10 of them only required a final discussion with Ms B in order to be closed. He considered that, in those circumstances, he could not take on additional cases. The applicant attached to that e-mail a list of current cases, showing open and suspended cases.

15       On 15 December 2011, by e-mail sent at 10.10, Ms B assured the applicant that the matter of his workload had indeed been discussed with Ms A. Furthermore, after observing that the list of cases pending had been drafted in “August/September [2011]”, she stated that this list should be reviewed and updated. She requested him to remove suspended cases from that list and to label the remaining cases in accordance with her previous instructions.

16      On the same day, at 10.46, the applicant replied by pointing out once again the terms of the agreement with Ms A and insisting on his request that he should not take on further cases, as the previously agreed maximum had been exceeded. Furthermore, he asked why Ms B wished him to remove the suspended cases from the list he had prepared, asserting that on any view those cases did not affect the maximum number of open cases which he could handle. In addition, he requested explanations on the format of the list required by Ms B, claiming that his previous line managers had always been satisfied with the current format.

17       Later on 15 December 2011, Ms B replied by e-mail sent at 15.06 that, in order to assess the applicant’s workload, she required a list of cases he was currently dealing with plus brief comments concerning the status of those cases. She added that, although the “30 case threshold” may have been valid in August 2011, that number needed to be reassessed and determined on the basis of available resources.

18       On 16 December 2011, the applicant sent several e-mails to Ms B seeking information from her regarding a temporary member of staff recruited by the ECDC. According to the applicant, that information would enable him to assess whether irregularities had been committed in the course of that recruitment.

19       The same day, Ms A sent Ms B an e-mail confirming that the threshold of 30 cases previously fixed was no longer valid and that, from now on, it was solely for Ms B to evaluate and determine the applicant’s workload.

20       By e-mail of 21 December 2011 sent at 12.39, Ms B criticised the applicant for refusing, during a brief meeting which had taken place earlier that day, to handle eight cases which had been assigned to him, conduct which she described as “a breach of the duties … both to [her], as [his] line manager, and to the [ECDC] as a whole”. In addition, by an e-mail sent at 12.46, she summoned the applicant to a meeting the same day at 15.00, in the presence of Ms C, Head of the Human Resources Section of the Resource Management and Coordination unit.

21       By e-mail sent at 14.19, the applicant replied to Ms B that he had “booked [his] calendar from 13.30 until 16.30 today” in order to draft a report for the purpose of Article 22a of the Staff Regulations to the Director of the ECDC (“the Director”), concerning the recruitment of a temporary member of staff, and that therefore he would not have time to attend a meeting before 16.45. He asked her in any event to postpone the meeting until the next day, since, having regard to his recent sickness, he preferred not to stay too late at the office. In addition, the applicant raised objections to Ms C’s attendance at that meeting.

22       Still on 21 December 2011, the applicant participated in a meeting at 17.00 with the Director, Ms A, Ms B and Ms C. The minutes of that meeting show that Ms A confirmed that the agreement of August 2011 with the applicant on the caseload threshold was no longer valid since the appointment of Ms B as Head of the Legal Service and that the latter alone was responsible for delegating and assigning tasks to the applicant. At that meeting the Director confirmed Ms A’s comments.

23       By e-mail of 22 December 2011, the applicant informed the Director that, in his opinion, irregularities had been committed in the recruitment of a temporary member of staff. As a result of that information, the Director referred the matter to the European Anti-Fraud Office (OLAF).

24       By e-mail of 3 January 2012 sent to Ms B, the applicant requested to be relieved permanently from having to handle data protection cases.

25       On 8 January 2012, the applicant sent an e-mail to Ms A asking her, pursuant to Article 21a(1) of the Staff Regulations, to confirm whether certain tasks which had been assigned to him by Ms B were “suitable for [his] position as Legal Officer”. The next day, Ms A replied that at the meeting held on 21 December 2011 she and the Director had clearly stated that it was for Ms B, as his line manager, to assign him tasks. In the present case, according to Ms A, there was no irregularity in the assignment of the tasks disputed by the applicant.

26       On 10 January 2012, the applicant and Ms B had another meeting in the presence of Ms D, Human Resources Policy and Support Officer, entrusted with drawing up the minutes of that meeting, and Mr E, a member of the Staff Committee acting as witness. It is apparent from the minutes of that meeting that Ms B criticised the applicant for having systematically refused to carry out the tasks she assigned to him, for not following her instructions and for concentrating on writing countless e-mails constantly criticising her rather than on resolving problems connected with his work. The applicant, for his part, replied that the instructions which had been given to him by Ms B were inappropriate or not suitable for a Legal Officer.

27       Still on 10 January 2012, the applicant sent the Director a request that he “recognise [the] psychological harassment” to which the applicant considered himself to be subject on the part of Ms B “and take measures so that this cease and be desisted from”.

28       On 11 January 2012, the Director opened an administrative inquiry under Article 2 of Annex IX to the Staff Regulations concerning the accusations of breach of the obligations arising under Articles 21 and 21a of the Staff Regulations made by Ms B against the applicant (“the inquiry into the accusations of insubordination”) and informed the applicant of this by e-mail of 12 January 2012.

29       The inquiry into the accusations of insubordination was entrusted to Mr F, Head of the Public Health Communication and Capacity unit. It was carried out from 12 to 24 January 2012. Mr F met the applicant, in the context of the inquiry, on 13 January 2012.

30       On 17 January 2012, the Director informed the applicant that an inquiry had been opened as a result of the applicant’s request that he “recognise [the] psychological harassment” to which the applicant considered himself to be subject on the part of Ms B “and take measures so that this cease and be desisted from” (“the inquiry into the allegations of harassment”).

31       By e-mail of 23 January 2012 at 23.39, Mr F forwarded the applicant an initial version of the draft report of the inquiry into the accusations of insubordination, asking him to state if he disputed the facts as set out in that draft. In addition, Mr F informed the applicant that he could submit observations at a later stage on the selection of the facts included in the report, namely after the report had been finalised.

32       On 24 January 2012, by e-mail sent at 17.39, Mr F forwarded to the applicant a revised version of the draft report of the inquiry into the accusations of insubordination, requesting him to submit his observations by midday on 26 January 2012. The applicant informed Mr F, by e-mail sent the same day, that he was able to submit his observations on the “Fact” part by midday on 30 January 2012 but that he needed more time to submit observations on the “Summary” and “Conclusion” parts of the draft report.

33       By e-mail of 25 January 2012, Mr F replied to the applicant that, since the time-limit for lodging his inquiry report expired the next day and the applicant was not able to send him “a more detailed response” by that date, he was going to send the inquiry report to the Director. Furthermore, Mr F suggested that the applicant submit his observations directly to the Director. The applicant replied to Mr F that he would in fact wait until the Director invited him to submit any observations he might have concerning the report of the inquiry into the accusations of insubordination.

34       Also on 25 January 2012, Ms B sent an e-mail to the applicant in which she criticised him in respect of a number of acts and omissions. Specifically, Ms B observed that she had requested him to print some documents in preparation for a meeting which had taken place that day, but that the applicant had failed to comply with her request and arrived at the meeting without the necessary documents and refusing to print them.

35       By e-mail of 26 January 2012 at 7.29, the applicant justified his conduct by explaining to Ms B that he had already sent her the documents by e-mail and he took the view that “printing … documents already available to [her was] … [a] task suitable not for a Legal Officer … but rather for [her], for [her] secretary or [her] assistant …” and that he therefore considered that order to be unlawful.

36       On 26 January 2012, Mr F submitted the definitive version of the report of the inquiry into the accusations of insubordination to the Director (“the final report on insubordination”). In his conclusion, the investigator stated that he was of the opinion that the applicant had infringed Articles 21 and 21a of the Staff Regulations and that there was sufficient evidence to initiate disciplinary proceedings on the basis of Article 3 of Annex IX to the Staff Regulations. Specifically, Mr F noted, first, that there was “a deep and mutual distrust between [the applicant] and [his line manager] that in practice [made] a normal day-to-day working relationship between them impossible [and that it was] remarkable how quickly [that] situation [had] developed”. Secondly, he concluded that “in breach [of] the Staff Regulation[s], Article 21, clear and repeated instructions from [Ms B] to [the applicant had] not been followed and given deadlines [had] not been respected”. Thirdly, he drew attention to the fact that “[Ms B had] been clear that refusal to carry out given tasks [might] have consequences [and that the applicant had] provided lengthy arguments as to why the given tasks [might not have been] proper, suitable or reasonable”. Fourthly, he concluded that “[t]here [were] diverging views between the two on what a reasonable workload [was] and what … tasks [were suitable] for a legal officer. In relation to this argument, [the applicant had] put in question the competence of [Ms B] in matters related to data protection and her managerial experience and ability to supervise him in a reasonable way”.

37       By e-mail of 27 January 2012, Ms B criticised a list prepared by the applicant concerning the tasks on which he was working, on the ground that some of the tasks no longer required any action on the applicant’s part and should not therefore have been included in that list. In the same e-mail, she requested the applicant to keep a worklog, stating in detail the time spent completing each of his assignments.

38      By e-mail of 31 January 2012, the applicant disputed Ms B’s observations on the tasks to be carried out by him and claimed that the request that he keep a worklog was “obviously unlawful” and followed “a series of similarly unlawful orders”. The same day, the applicant wrote to Ms A to ask her whether she confirmed that request, as well as the order to “print out documents already submitted … by e-mail”, stating that those two orders were unlawful and unsuitable for his position.

39            By e-mail sent to the applicant on 2 February 2012, Ms A confirmed Ms B’s orders in the following terms: “… I find nothing ‘unlawful’ or ‘obviously unsuitable’ for your position in her request[;] on the contrary it is a legitimate expectation for a line manager when having a meeting with one of his/her [subordinates] that he/she comes prepared, maintains a log of activities and brings material to the meetings. …”

40       On 2 February 2012, the applicant was heard in connection with the inquiry into the allegations of harassment by Mr G, the Deputy Scientific Director of the ECDC, who had been entrusted with carrying out that inquiry.

41       On 10 February 2012, Mr G handed in his report on the allegations of harassment (“the final report of the inquiry into the allegations of harassment”) to the Director. In that report, Mr G recommended that the case should not be considered to be one of psychological harassment, but “of a severe conflict between a subordinate and a line manager”.

42       By e-mail of 17 February at 8.38, the Director summoned the applicant to a meeting in his office the same day at 9.15 (“the meeting of 17 February 2012”).

43       It is apparent from the minutes of the meeting of 17 February 2012, sent to the applicant the same day at 12.37, that the Director, after taking formal note of the fact that the applicant had received the final report on insubordination, informed him, first, that the inquiry into the accusations of insubordination was closed and that the accusations against him were confirmed and, secondly, that the inquiry into the allegations of harassment had been closed without any follow-up recommended. Next, he requested the applicant to submit his observations by 22 February 2012 at 17.00. Attached to those minutes were the final report on insubordination and a summary of the final report of the inquiry into the allegations of harassment which included the conclusions and recommendations of the investigator.

44       By e-mail of 20 February 2012 sent to the Director and to Ms D, the applicant requested more time in order to examine the two documents attached to the minutes of the meeting of 17 February 2012. The same day, Ms D contacted the applicant to confirm the time-limit of 22 February 2012 set by the Director.

45      By e-mail of 21 February 2012, the applicant repeated his view that the period fixed by the Director was too short and that he therefore would not be able to submit his observations within the prescribed period.

46       On 24 February 2012, a meeting took place between the Director, the applicant and Ms D. At that meeting, the Director informed the applicant that a decision had been taken to terminate his contract on the basis of Article 47(b)(ii) of the CEOS (“the contested decision”), explaining to him the reasons for that decision.

47       The contested decision is worded as follows:

      “...

During our meeting on 17 February 2011 [sic], I confirmed the findings of both [the final report on insubordination regarding] your alleged non-compliance with the obligations detailed in Article 21 and 21a of the Staff Regulations … and [the final report of the inquiry into the allegations of harassment]. You were offered the opportunity to comment either orally, during the meeting, or subsequently, in writing, but no comments were received from you within the deadline set.

With regards to the first matter, I made it clear to you during our meeting on 10 December 2011 [sic] that I expected you to carry out the instructions of your line manager. It is clear to me from [the final report on insubordination] and also from subsequent behaviour which has been brought to my attention, that you have consistently failed in your obligations to the [ECDC] in this regard. Turning to the second matter, an investigation was carried out following your allegations of psychological harassment and no evidence of psychological harassment against you could be found. Having read both [inquiry] reports, it is clear to me that you have significant difficulty in accepting management decisions, [that you] have repeatedly refused to perform tasks and [that you] have behaved in an obstructive and provocative manner.

I can only conclude that this severe conflict has been initiated and sustained by you to the detriment of the [ECDC]. Your behaviour is not compatible with [its] values … and your sustained refusal to perform to the standards required negates the possibility of a normal working relationship. I have therefore come to the conclusion that the necessary relationship of trust between you and I, as Director …, and with other staff members has been irreparably damaged. I therefore regret to inform you that your employment with ECDC will be terminated according to Article 47 of the [CEOS]. Following the notice period of two months, your last day of employment will be 30 April 2012. In accordance with Article 47(b)(ii) of [the] CEOS you will receive compensation equal to one third of your basic salary for the period between the date when your duties end and the date when your contract expires.

Today will be your last day working in the office ... You will be assigned work to be performed from home by your line manager and this will include the preparation of a handover file.

      ...”

48            By e-mail of 5 March 2012, the applicant sent the Director and Ms D written observations concerning the final report on insubordination. By e-mail of the same day, Ms D reminded the applicant that the deadline for submitting observations had expired and that the Director had already taken his decision.

49       By e-mail of 16 April 2012, the applicant requested the Director for access to all the documents concerning the inquiry into the accusations of insubordination and the inquiry into the allegations of harassment which had not yet been forwarded to him. In the absence of a reply from the ECDC, by e-mail of 16 August 2012 with the subject heading “Complaint …”, the applicant asked the Director to reconsider his “implied rejection”. ...

      ...

51       On 18 May 2012, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations.

52       By letter of 29 June 2012, the Director informed the applicant of his decision to consider the case relating to the alleged illegalities in the recruitment of a member of the temporary staff closed, on account of the decision of the Director General of OLAF not to open an investigation following the applicant’s allegations, having regard to the weakness of the evidence of any irregularities.

      ...

54       By letter of 18 September 2012, the Director, acting as the authority empowered to conclude contracts of employment (“the AECE”), rejected the complaint of 18 May 2012 against the contested decision ...’

 Procedure before the Civil Service Tribunal

3        By application lodged at the Registry of the Civil Service Tribunal on 26 December 2012, CJ brought an action, which was registered as Case F‑159/12 (‘the action in Case F‑159/12’), seeking the annulment of the contested decision and compensation in respect of the material harm he considered himself to have suffered on account of that decision.

4        By application lodged at the Registry of the Civil Service Tribunal on 28 December 2012, CJ brought an action, which was registered as Case F‑161/12 (‘the action in Case F‑161/12’), seeking compensation in respect of the non-material harm allegedly suffered.

5        By order of the President of the Second Chamber of the Tribunal of 14 March 2013, Cases F‑159/12 and F‑161/12 were joined for the purposes of the written procedure, the oral procedure and the final judgment.

6        In its statement in defence in the proceedings before the Tribunal, the ECDC contended, inter alia, that the actions in Cases F‑159/12 and F‑161/12 should be dismissed.

7        By letter of 30 May 2013, CJ requested the Tribunal to authorise a second exchange of pleadings.

8        By letters from the Registry of 11 June 2013, the parties were informed that the Tribunal considered necessary a second exchange of pleadings, restricted to observations, if any, on certain annexes to the statement in defence which the appellant considered might have a significant impact on the result of the case, namely the minutes of three meetings between the appellant and his management, an e-mail addressed by Ms B to the Director of the ECDC concerning the possibility of instigating disciplinary proceedings on the basis of Article 86 of the Staff Regulations against CJ, the final report of the inquiry into the allegations of harassment and the decision of the Director of the ECDC of 18 September 2012 concerning the delegation of certain powers to one of the members of staff of the ECDC (‘the instructions of 11 June 2013’). In addition, the Tribunal informed CJ that his statement in reply was not to exceed 10 pages.

9        On 22 July 2013, CJ lodged a statement in reply at the Tribunal Registry of 75 pages accompanied by annexes comprising 317 pages. In that pleading, the appellant did not restrict his observations to the annexes indicated in the instructions of 11 June 2013, but submitted observations in reply regarding the entirety of the statement in defence.

10      By letter from the Registry of 12 September 2013, the parties were informed of the Tribunal’s decision not to accept the reply lodged on 22 July 2013 and to set a new time limit for lodging a reply which complied with the instructions of 11 June 2013.

11      On 19 September 2013, CJ lodged a new reply of 18 pages at the Tribunal Registry. That reply was accompanied by 22 annexes, comprising 144 pages, which included the reply of 22 July 2013. Since that new reply did not comply with the instructions of 11 June 2013, the Tribunal decided not to include it in the file and set a new time limit of 24 October 2013 for lodging a reply which complied with those instructions, which it notified to the appellant by letter from the Registry of 16 October 2013. In the same letter, the Tribunal drew the appellant’s attention to Articles 32 and 94 of the version of the Rules of Procedure then in force and to the inferences which the General Court of the European Union had drawn from the infringement of the equivalent provisions in its Rules of Procedure, inter alia in its judgment of 13 December 2012 in Strack v Commission (T‑199/11 P, EU:T:2012:691).

12      By letter of 23 October 2013, CJ asked the Tribunal to accept the reply of 22 July 2013 or that of 19 September 2013.

13      By letter of 12 November 2013, the Tribunal Registry informed the parties that, having regard to the fact that the appellant had not lodged a reply complying with the instructions of 11 June 2013 within the prescribed period, the Tribunal had decided to close the written part of the procedure.

14      By letter of 26 July 2014, CJ requested the Tribunal take certain measures of organisation of procedure, concerning events which took place more than a year after the adoption of the contested decision.

15      By letter of 14 August 2014, the Tribunal Registry informed the parties of the Tribunal’s decision to reject both those requests.

16      The hearing took place before the Civil Service Tribunal on 4 September 2014.

17      By letter of 28 September 2014, CJ requested the Tribunal to amend the minutes of the hearing. By letters from the Registry of 4 December 2014 however, the parties were informed of the Tribunal’s decision not to amend those minutes.

 Judgment under appeal

18      In the judgment under appeal, the Tribunal annulled the contested decision terminating CJ’s contract as a member of the contract staff, dismissed the action in Case F‑159/12 as to the remainder and dismissed the action in Case F‑161/12. Moreover, the Tribunal declared, in Case F‑159/12, that the parties were to bear their own costs and, in Case F‑161/12, that CJ was to bear his own costs and that he was to be ordered to pay the costs incurred by the ECDC. Lastly, in Case F‑159/12, the Tribunal ordered CJ to pay it a sum of EUR 2 000 in order to refund part of the avoidable expenditure which the Tribunal was forced to incur.

 Claim for annulment of the contested decision

19      Having raised, in the action brought before the Tribunal, two preliminary pleas in law alleging, as to the first, that the contested decision was essentially a disguised disciplinary measure (‘the first preliminary plea’) and, as to the second, misuse of powers (‘the second preliminary plea’), CJ put forward 15 pleas in law in support of his claim for annulment of the contested decision, alleging:

–        1. breach of the right to be heard;

–        2. breach of the obligation to state reasons;

–        3. breach of the principle of the presumption of innocence;

–        4. breach of the duty of due diligence;

–        5. breach of the applicant’s right to be granted access to the files of both inquiries;

–        6. that both investigators were unsuitable;

–        7. misuse of powers;

–        8. infringement of Article 2(3) of Annex IX to the Staff Regulations;

–        9. manifest error of assessment as to the facts;

–        10. error in law in the choice of legal basis for the contested decision;

–        11. factual error as regards the criticised ‘subsequent behaviour’;

–        12. manifest errors in the assessment of the insubordination;

–        13. breach of the principle of proportionality;

–        14. the lack of competence of the signatory of the decision rejecting the complaint;

–        15. the lack of competence of the ECDC and the Tribunal to adjudicate on the accusations concerning criminal conduct.

20      In the judgment under appeal, the Tribunal started by considering the first preliminary plea together with the tenth plea and then examined the second preliminary plea in conjunction with the seventh plea. Next, the Tribunal considered the other pleas in the order in which CJ submitted them, examining together the ninth, eleventh and twelfth pleas, which all allege manifest errors of assessment.

21      In the first place, the Tribunal rejected, in paragraphs 81 to 83 of the judgment under appeal, the first preliminary plea and the tenth plea, alleging that the contested decision was essentially a disguised disciplinary measure and that its legal basis is vitiated by an error in law:

‘81       The Tribunal points out 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 or contract staff, there is no obligation on that authority to initiate disciplinary proceedings against him rather than using the option of unilaterally terminating the contract provided for in Article 47(b) of the CEOS. It is only if the AECE intends to dismiss a member of the temporary staff or contract staff without notice, in a serious case of failure to comply with his obligations, that the disciplinary procedure provided for in Annex IX to the Staff Regulations of Officials, which applies by analogy to members of the temporary staff and contract staff, should be initiated, as provided for in Article 49(1) of the CEOS ...

82       It follows that, by deciding to terminate the applicant’s contract before its expiry, with notice, on the basis of Article 47(b)(ii) of the CEOS and without initiating disciplinary proceedings, the AECE did not act unlawfully.

83       The first preliminary plea and the tenth plea must therefore be rejected.’

22      In the second place, the Tribunal rejected, in paragraphs 89 to 92 of the judgment under appeal, the second preliminary plea and the seventh plea, alleging misuse of powers and based on the claim that the contested decision was taken as a reprisal for CJ having reported possible irregularities committed by the ECDC:

‘89            [T]he Tribunal points out that a decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the purpose of achieving ends other than those stated ...

90       In the present case, first, the Tribunal notes that the wording of the contested decision shows that it was clearly based on breaches by the applicant of his obligations to the ECDC and on the irreparable breakdown in the relationship of trust which ensued.

91       Secondly, the Tribunal is of the opinion that the applicant relies on mere conjecture without putting forward objective, relevant and consistent evidence of misuse of powers. In particular, the Tribunal notes that OLAF decided not to take any action on the applicant’s allegations on account of the weakness of the evidence of the irregularities he raised. The applicant therefore cannot rely on the fact that, in his view, those allegations were indeed “well founded” and that they were dismissed solely because they concerned the Director [of the ECDC] or his close associates. In the same way, the argument that the contested decision was linked to the alleged psychological harassment to which he was subject from Ms B must be rejected. The final report of the inquiry into the allegations of harassment excluded the possibility that the applicant had been the victim of such harassment and that inquiry was closed without follow-up by a decision of the Director [of the ECDC], a decision which the applicant has not challenged before the European Union judicature and which has therefore become definitive.

92       As a result, the second preliminary plea and the seventh plea, alleging misuse of powers, must be rejected as unfounded without its being necessary to adopt the measures of organisation of procedure requested by the applicant.’

23      In the third place, in paragraphs 107 to 131 of the judgment under appeal, the Tribunal decided to uphold the third complaint submitted in the first plea alleging breach of the right to be heard, to reject the other three complaints and, consequently, to annul the contested decision on the ground that, prior to adopting that decision, the AECE did not hear CJ on the action which it intended to take as a result of his behaviour:

‘107             It must be recalled at the outset that, as the Tribunal found in paragraphs 81 and 82 [of the judgment under appeal], the contested decision was adopted on the basis of Article 47(b)(ii) of the CEOS, so any reference to the provisions governing disciplinary proceedings made by the applicant is irrelevant to the analysis of the present plea.

108             Secondly, pursuant to Article 41(2)(a) of the Charter, every person has the right to be heard before any individual measure which would affect him or her adversely is taken. Furthermore, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (judgment in Kamino International Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 39).

109             According to the case-law, 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 (see the judgment in Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, paragraph 83).

110      It is not disputed that, in the present case, the decision to terminate the applicant’s contract on the basis of Article 47(b)(ii) of the CEOS constitutes an individual measure which affects the applicant adversely (see, as regards the early termination of the contract of an accredited parliamentary assistant, judgment in CH v Parliament, F‑129/12, EU:F:2013:203, paragraph 34; see also, as regards the non-renewal of the fixed term contract of a member of the temporary staff, judgment in Tzikas v AFE, F‑120/13, EU:F:2014:197, paragraph 46). The applicant therefore had the right to be heard before the adoption of the contested decision, even though Article 47(b)(ii) of the CEOS does not specifically provide for such a right.

111       So far as concerns the first, second and fourth complaints, the wording of the contested decision shows that it was taken on the ground that the applicant had breached his obligations to the ECDC by not complying with the instructions of his line manager and behaving in an obstructive and provocative manner. That finding is based on the final report on insubordination and on “subsequent behaviour” by the applicant which was brought to the Director [of the ECDC’s] knowledge.

112       As regards that “subsequent behaviour”, the AECE referred, in the decision rejecting the complaint, to a number of e-mails in which Ms B criticised various acts and omissions by the applicant. In particular, Ms B reproached the applicant for not attending meetings to which he had been convened (e-mails of 3 and 7 February 2012), for not preparing documents for which he had been requested (e-mails of 25 January and 6 February 2012), for behaving inappropriately at a meeting (e-mail of 31 January 2012) and lastly for questioning her competence, despite the fact that she had already indicated to him that she found that conduct “rude and harassing” (e-mail of 23 January 2012). Moreover, in the e-mails of 25 January, 6 February and 7 February 2012, Ms B informed the applicant that his behaviour would be brought to the Director [of the ECDC’s] attention, so the applicant was fully aware that the Director [of the ECDC] would be informed of the acts and omissions which Ms B had criticised.

113            It must therefore be stated that the acts and omissions described in the e-mails mentioned in the preceding paragraph are nothing other than examples of the conduct for which the applicant had already been criticised in the conclusion of the final report on insubordination, namely not complying with the clear and repeated instructions of his immediate superior in breach of Article 21 of the Staff Regulations.

114       It is apparent from the file that, first, the applicant was in fact invited to submit his observations, initially, on the draft report of the inquiry into the accusations of insubordination then, at the meeting of 17 February 2012, on the final report of that inquiry (see paragraph 43 above) and that he did not submit any observations within the time-limits he was set. Secondly, the applicant could have submitted observations on the acts and omissions criticised in the e-mails referred to in paragraph 112 [of the judgment under appeal] either at the meeting of 17 February 2012 or within the time-limit set during that meeting for him to submit observations on the final report on insubordination. However, it appears that, by not communicating observations to the ECDC until 5 March 2012, thus almost two weeks after the expiry of the last time-limit he was set, the applicant in effect declined to exercise his right to be heard in that regard.

115             Since the applicant was thereby given the opportunity to respond and to submit observations on the acts and omissions of which he was accused, the complaint alleging that he was not heard on the criticised “subsequent behaviour” therefore cannot be upheld.

116            It is sufficient to note, as regards the complaint concerning the alleged uncertainty with respect to the responsibility for the conflict between the applicant and Ms B, that, in the final report on insubordination, the investigator states that, in breach of Article 21 of the Staff Regulations, the applicant did not comply with the clear instructions of his superior, notwithstanding the confirmation of those instructions by the hierarchical authority immediately above in accordance with Article 21a(1) of the Staff Regulations. The investigator thus issued the opinion that the applicant had breached his obligations to the ECDC, thereby warranting the initiation of disciplinary proceedings.

117            In the light of the wording of that report, the applicant certainly cannot argue that he discovered for the first time on reading the contested decision that he was to be blamed for the conflict with his line manager. In those circumstances, it must be held that the applicant was given an opportunity to submit his observations on the responsibility for the conflict with his line manager which, according to the final report on insubordination, was clearly imputed to him. Consequently, the present complaint cannot be upheld.

118       Lastly, so far as concerns the various time-limits set for the applicant to submit his observations, the Tribunal notes that the investigator gave the applicant a period of one and a half working days to submit his observations on the final report on insubordination and that, at the meeting of 17 February 2012, the Director [of the ECDC] left the applicant a further five days to submit his observations on the final report on insubordination and on the findings and the recommendations in that report.

119       The Tribunal takes the view that those time-limits were justified, first, by the fact that the factual context in which the two inquiries took place was well known to the applicant and, secondly, by the brevity of the documents communicated to him. The final report on insubordination consists of seven pages, six of which deal with the description of the facts and only one of which deals with the investigator’s findings. Moreover, the final report is identical to the draft communicated to the applicant for the first time on 23 January 2012 at 23.39 and the second time the next day at 17.39. Consequently, when the Director, at the meeting of 17 February 2012, granted the applicant a period of five days to submit his observations on the final report on insubordination, the applicant had already known the contents of that report for more than three weeks. The findings of the final report of the inquiry into the allegations of harassment are contained in seven lines of text. Accordingly, the Tribunal considers that the time-limit set for the applicant was more than sufficient for him to submit observations.

120       So far as concerns, lastly, the meeting of 17 February 2012, the Tribunal notes that the applicant had been aware, since 24 January 2012, that the Director [of the ECDC] had received the final report on insubordination. Indeed, the applicant himself, in an e-mail of 25 January 2012 sent to Mr F, wrote that he was waiting for “a signal from the Director” [of the ECDC] to find out whether he could still submit observations on that report. Accordingly, the fact that the applicant was convened to attend the meeting of 17 February 2012 at short notice and by an e-mail which did not state the purpose of the meeting cannot have had an impact on the applicant’s option to submit his observations on the final report on insubordination directly to the Director [of the ECDC], as Mr F had suggested on 24 January 2012 when he communicated a copy of that report to him. In any event, in the light of the factual context and the subject-matter of the meeting of 21 December 2011 between, inter alia, the Director and the applicant, and having regard also to their hierarchical relationship, the applicant was able to grasp what the subject-matter of the meeting of 17 February 2012 would be and to make the necessary inquiries, if he had any doubts in this respect, before attending.

121       Consequently, the complaint alleging that the time-limits set for the applicant to submit his observations do not comply with Article 41(2)(a) of the Charter must be rejected.

122       So far as concerns the third complaint, alleging that the applicant was neither informed of the action which the AECE intended to take as a result of the findings in the final report on insubordination, nor heard on the severity of that action, nor informed of or heard regarding the legal basis on which the AECE intended to rely in its adoption of the contested decision, it is apparent from the file that the AECE never mentioned, prior to the adoption of the contested decision, the possibility that a decision might be taken to terminate the applicant’s contract on the basis of Article 47(b)(ii) of the CEOS. It must be held in particular that Ms B’s various statements that the applicant’s behaviour might have consequences for his staff report, or even “more serious consequences”, did not enable him to comprehend without doubt that the AECE was planning to terminate his contract before its expiry. The applicant was not therefore given the opportunity to submit observations on the action which the AECE was planning to take as a result of his behaviour and, in particular, on the fact that it intended to terminate his contract under the aforementioned provision.

123       It must therefore be held that, so far as concerns that aspect of the contested decision, the applicant’s right to be heard was not respected by the ECDC, in breach of Article 41(2)(a) of the Charter.

124       However, in order for the infringement of the right to be heard to justify the annulment of the contested decision in the present case, it is also necessary to examine whether, in the absence of that irregularity, the procedure might have led to a different result (judgments in Kamino International Logistics, EU:C:2014:2041, paragraph 79; CH v Parliament, EU:F:2013:203, paragraph 38; and Wahlström v Frontex, F‑117/13, EU:F:2014:215, paragraph 28).

125       The purpose of the rule that the addressee of a decision affecting him 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 object of that rule is, in particular, 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 (judgment in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 65 and the case-law cited therein).

126      In that regard, the applicant submits that, if he had been heard on the action which the AECE intended to take as a result of his behaviour, he could have requested that disciplinary proceedings be initiated. In addition, when questioned at the hearing, the applicant stated that he could have suggested to the AECE that it adopt alternative solutions, such as, for example, his transfer to another department or his temporary suspension from duties in order to “give him some time to think”.

127       The Tribunal finds that the contested decision is based on an irreparable breakdown in the relationship of trust with the applicant due to a long series of inappropriate actions on his part and that the applicant had the opportunity to state his views, several times, on the behaviour of which he was accused.

128       However, it is apparent from the file, and in particular from the facts as established in the final report on insubordination, that the behaviour of which the applicant is accused did not begin until Ms B was appointed Head of the Legal Service and, consequently, became his line manager. The ECDC does not claim that the applicant’s behaviour gave rise to problems of a disciplinary or other nature before the period to which that report relates or that, for example, the applicant had already breached his obligations under Articles 21 and 21a of the Staff Regulations prior to that period. Although the ECDC stated, at the hearing, that it was impossible to transfer the applicant to another post in the present case, that contention was not supported by any evidence of that alleged state of affairs which, moreover, is in no way apparent from the file. It is therefore evident that the AECE did not consider any solution to the insubordination found to have been committed by the applicant other than the termination of his contract.

129       The decision to end the contract of a member of the contract staff before its expiry, however warranted, constitutes an act of extreme seriousness both for the institution or agency concerned, which selected and recruited him, normally following a highly competitive selection procedure, and even more so for the member of staff, who suddenly finds himself to be unemployed and whose career might be negatively affected for many years. Besides the fact that this is a fundamental right of the member of staff concerned, the exercise by the latter of the right to state his views effectively on the dismissal decision envisaged falls within the AECE’s responsibility, a responsibility which it must scrupulously comply with. It is not for the Tribunal to adopt a position, in the context of the present complaint, on whether other solutions which might have been envisaged in the case were feasible. In any event, to hold that the AECE would necessarily have adopted the same decision, even after hearing the applicant, would render meaningless the fundamental right to be heard enshrined in Article 41(2)(a) of the Charter, since the very content of that right implies that the person concerned have the possibility of influencing the decision-making process at issue (judgment in Wahlström v Frontex, EU:F:2014:215, paragraph 33 and the case-law cited therein).

130       In the circumstances of the present case, the Tribunal is not able to rule out the possibility that, had the applicant been heard before the AECE decided to terminate his employment contract under Article 47(b)(ii) of the CEOS, the applicant might have persuaded the AECE to adopt a different decision.

131       Having regard to the foregoing, the third complaint in the first plea must be upheld and the contested decision must be annulled on the ground that, before adopting the contested decision, the AECE did not hear the applicant on the action which it intended to take as a result of his behaviour.’

24      In the fourth place, in the interests of the proper administration of justice, the Tribunal examined and rejected the other pleas raised by CJ. 

25      So far as concerns the second plea, alleging breach of the obligation to state reasons, the Tribunal held as follows, in paragraphs 143 to 151 of the judgment under appeal:

‘143       In the present case, the Tribunal observes, first, that the AECE was not under any obligation to instigate disciplinary proceedings and was therefore not required to explain, in the contested decision, why it was basing that decision on Article 47(b)(ii) of the CEOS and not on the provisions governing the disciplinary procedure.

144       Next, as is apparent from the text of the contested decision (see paragraph 47 above), first, the Director [of the ECDC] points out that, at a meeting held in December 2011 with the applicant, he informed the latter that he expected him to carry out Ms B’s instructions. Secondly, the Director [of the ECDC] states that it is clear to him that the applicant has consistently failed in his obligations to the ECDC and that this is apparent both from the final report on insubordination and from his “subsequent behaviour”. Thirdly, he maintains that, having read both inquiry reports, he is of the opinion that the applicant has significant difficulty in accepting management decisions, has repeatedly refused to perform tasks and has behaved in an obstructive and provocative manner. Fourthly, he declares that the applicant initiated and sustained a severe conflict with management to the detriment of the ECDC, that his behaviour is not compatible with the values of the ECDC and that his sustained refusal to perform to the standards required negates the possibility of a normal working relationship. Lastly, he concludes that the applicant has irreparably damaged the relationship of trust that must exist between them.

145       It must therefore be held that the reasons given for the contested decision enable the applicant to assess, with full knowledge of the facts, whether it is well founded and whether an action may be brought against it and enable the Tribunal to review the lawfulness of that measure.

146       Furthermore, it is not disputed that the applicant was very well acquainted with the context in which the contested decision was taken.

147       First, he had received the final report on insubordination on 17 February 2012, from which it was apparent that the investigator took the view that he had repeatedly breached his obligations with regard to the ECDC. 

148       Next, Ms B had on several occasions criticised the applicant for not following her instructions and for challenging her authority. As an example, besides the e-mails mentioned in paragraph 112 [of the judgment under appeal], which, although sent after the final report on insubordination was adopted, are relevant for the purposes of assessing the lawfulness of the contested decision, Ms B had warned the applicant, in an e-mail of 20 December 2011 at 11.51, that “[i]f [he was] unwilling to follow the request[s] of [his] line manager … this [would] reflect upon any evaluation of [his] ability, efficiency and conduct”, indicating that “a consistent inability or refusal to follow the instructions of [his] line manager [might] have more serious consequences”.

149       In addition, in an e-mail of 5 January 2012 at 9.43, Ms B wrote to the applicant stating that “[t]he crux of the problem appear[ed] to be [his] refusal to accept [her] authority as line manager to assign work to [him] … Since the Director [of the ECDC had] already adjudicated on this matter, [she] consider[ed] protracted correspondence to be a waste of precious resources and lacking in respect to both [her] and the [ECDC] as a whole ...”. Lastly, the same day, Ms B sent the applicant another e-mail worded as follows: “…As you are aware you are contractually obliged to perform tasks assigned to you and your refusal to do so will be viewed in light of this obligation. …”

150       Lastly, the finding that there was no breach of the obligation to state reasons cannot be called into question by the chronological inaccuracies in the contested decision, which gives the dates of the meetings between the Director [of the ECDC] and the applicant as “10 December 2011” and “17 February 2011”, even though the meetings in question took place on 21 December 2011 and 17 February 2012. Those factual errors were noticed by the applicant, who, in the application, himself acknowledges that by “‘10 December 2011’ the [appointing authority] presumably meant [‘21 December 2011’]” and that “by ‘17 February 2011’, the [appointing authority] presumably meant [‘17 February 2012’]”. Moreover, in the event of doubt there was nothing to prevent the applicant, having noticed an anomaly in the wording of the contested decision, from seeking clarification from the AECE.

151       It follows that the second plea must be rejected.’

26      So far as concerns the third plea, alleging breach of the principle of the presumption of innocence, the Tribunal held as follows, in paragraphs 154 to 156 of the judgment under appeal:

‘154       The Tribunal points out that the principle of the presumption of innocence is a fundamental right which the European Union Courts must ensure is observed by the institutions. That right is identified in case-law as a general principle applicable to administrative proceedings having regard to the nature of the infringements in question and the nature and degree of severity of the ensuing penalties. It follows that the right to a presumption of innocence applies, even in the absence of a criminal prosecution, for an official accused of a breach of his obligations under the Staff Regulations which is sufficiently serious to warrant an investigation by OLAF, in the light of which the administration may adopt any measure it deems necessary, however severe ...

155       In the present case, that right might have been violated had the ECDC decided to terminate the applicant’s contract solely on the basis of the accusations made with regard to him by his line manager, without ever having given the applicant the opportunity to explain himself or ascertaining whether the criticism of him was justified ... However, here, the contested decision was adopted after an inquiry had been conducted during the course of which the applicant had been given the opportunity to state his views. In such circumstances, there is no issue of a breach of the principle of the presumption of innocence.

156       The present plea must therefore be dismissed as unfounded.’

27      So far as concerns the fourth plea, alleging breach of the duty of due diligence, the Tribunal held as follows, in paragraphs 159 to 162 of the judgment under appeal:

‘159             The Tribunal observes that, first, so far as the inquiry into the allegations of harassment is concerned, the member of staff personally involved was not the applicant but his line manager, whom the applicant had accused of psychological harassment. It follows that the applicant cannot claim to be entitled to the rights associated with the status of a member of staff who is personally involved and cannot legitimately criticise the ECDC for failing to inform him of those rights.

160             Secondly, so far as the inquiry into the accusations of insubordination is concerned, the Tribunal recalls that, pursuant to Article 2(1) of Annex IX to the Staff Regulations, the member of staff in question has the right to be heard before the adoption of the final conclusions of the administrative investigation, to be informed when the investigation ends and to receive the investigation report.

161             In the present case, the investigator forwarded the draft report of the inquiry into the accusations of insubordination to the applicant by e-mail of 24 January 2012, requesting him to comment. In addition, the investigator notified the applicant by e-mail of 25 January 2012 that he was going to send that document to the Director, thereby informing him of the closure of the inquiry.

162             It follows that, since the applicant has not proved any infringement of his rights of the defence in either inquiry procedure, the present plea must be rejected as unfounded.’

28      So far as concerns the fifth plea, alleging a failure to grant access to the inquiry files, the Tribunal held as follows in paragraphs 165 to 171 of the judgment under appeal:

‘165             First, even if it were to be established that Article 2(2) of Annex IX to the Staff Regulations had been infringed, that would be of no consequence for the assessment of the contested decision, since that decision was taken on the basis of Article 47(b)(ii) of the CEOS and not on the basis of the provisions relating to the disciplinary procedure.

166             Next, as regards the applicant’s allegation that Article 13 of Regulation No 45/2001 was infringed, he claims in the application that he requested access to the final report of the inquiry into the allegations of harassment by e-mail of 5 March 2012 and to “all documents not already communicated to [him]” relating to the inquiry into the accusations of insubordination and the inquiry into the allegations of harassment by e-mail of 16 April 2012.

167             Those requests were both made after the adoption of the contested decision on 24 February 2012. Consequently, the ECDC’s refusal to grant them cannot affect the validity of the contested decision.

168             In any event, it appears that the applicant makes no reference in either of the abovementioned e-mails to his personal data, be that to request confirmation that data related to him was being processed by the ECDC, to request information as to the purposes of the processing operation, to obtain communication of the data undergoing processing or to obtain knowledge of the logic involved in any automated decision process. Accordingly, in that context the reference to Article 13 of Regulation No 45/2001 is irrelevant.

169             Lastly, the complaint alleging infringement of Article 26 of the Staff Regulations, for its part, must be rejected, since the applicant has not proved that he requested access to his personal file.

170             Furthermore, as regards the ECDC’s refusal to send the final report of the inquiry into the allegations of harassment to the applicant, it must be recalled that, as regards a decision closing without further action an investigation initiated in response to a request for assistance submitted under Article 24 of the Staff Regulations, the Staff Regulations do not impose any express obligation to send to the complainant either the final report of the administrative investigation or the records of the interviews conducted during that investigation (judgment in Tzirani v Commission, EU:F:2013:115, paragraph 132).

171       The fifth plea, alleging breach of the applicant’s right of access to the files of both inquiries, must therefore be rejected as unfounded.’

29      So far as concerns the sixth plea, alleging that both investigators were unsuitable, in paragraphs 174 to 178 of the judgment under appeal the Tribunal held as follows:

‘174             It is appropriate to point out that the institutions have wide discretion in the choice of person to whom they entrust an administrative inquiry into accusations of insubordination, including an inquiry into alleged harassment (judgment in Tzirani v Commission EU:F:2013:115, paragraph 121). In that context, the institutions are required to choose a person suitable for the delicate task entrusted to him or her, without however the experience of that person as an investigator being a decisive factor in that choice.

175       In the light of that wide discretion, the applicant cannot legitimately challenge the ECDC’s choice on the sole basis of the alleged inexperience of the investigators and without even having attempted to prove that the AECE used its discretion in a way that is manifestly incorrect.

176       Furthermore, the applicant merely observed that, prior to the initiation of both inquiries, he had drawn attention to facts suggesting that an unlawful act had been committed in connection with the use of the ECDC’s funds, in which the Director and the Scientific Director of the ECDC were allegedly implicated, and that the two investigators were the Head of the Public Health Communication and Capacity unit, who was a direct subordinate of the Director, and the Deputy Scientific Director of the ECDC.

177       However, the applicant has not furnished the Tribunal with any evidence or indicia of a possible lack of independence on the part of the two investigators.

178       The sixth plea in law must therefore be rejected.’

30      As regards the eighth plea, alleging infringement of Article 2(3) of Annex IX to the Staff Regulations, the Civil Service Tribunal stated in paragraph 180 of the judgment under appeal that ‘[it was] sufficient, in order to reject this plea as inoperative, to observe, as the Tribunal [did] in paragraphs 81 and 82 [of that judgment], that the contested decision [had] not [been] adopted on the basis of the disciplinary procedure governed by Annex IX to the Staff Regulations but on the basis of Article 47(b)(ii) of the CEOS’.

31      As regards the ninth, eleventh and twelfth pleas, alleging manifest errors of assessment as to the facts, in paragraphs 188 to 204 of the judgment under appeal the Tribunal held as follows:

‘188            First, the early termination of a contract of a member of the contract staff under Article 47(b)(ii) of the CEOS may be based on conduct of the staff member concerned leading to a breakdown in the relationship of trust between that person and the AECE. Secondly, as the competent authority has wide discretion, review by the Courts of the European Union must be limited to ensuring that there has been no manifest error or misuse of powers ...

189            In that context, in order to establish that the administration committed a manifest error in assessing the facts which would justify the annulment of a decision taken on the basis of that assessment, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent ...

190       In the present case, the reason for the contested decision is essentially the irreparable breakdown in the relationship of trust between the applicant and his management, a breakdown which is attributable not to a specific isolated episode but to a series of actions and omissions by the applicant between November 2011 and February 2012. In the contested decision, the Director [of the ECDC] states, inter alia, that the applicant has “significant difficulty in accepting management decisions, … repeatedly refused to perform tasks and … behaved in an obstructive and provocative manner”.

191            It is sufficient, first, to observe that the applicant is attempting, including in his application, to call into question the competence of his line manager on the basis of allegations unsupported by evidence, in order to dispute the criticism levelled at himself. In the eleventh plea, he submits that, because the members of the selection board responsible for recruiting Ms B “were merely medical professionals”, there “was an increased likelihood that [Ms B] was more-or-less unsuitable for her position [as Head of the Legal Service], and would therefore commit errors of judgment when assessing the appropriateness [or lack thereof] of her subordinates’ conduct”.

192       Secondly, it is very clear from the file that the applicant, as the Director observed, did in fact have difficulty in accepting management decisions.

193       As an example, the Tribunal points out that, following a straightforward request from Ms B on 8 November 2011 to send her a brief summary of the cases he was working on, the applicant responded by asking if she had not received the written overviews he had sent her predecessor prior to going on holiday in mid-October 2011 (see paragraphs 10 and 11 [of the judgment under appeal]).

194       In addition, on 14 December 2011, Ms B requested the applicant to update the list of ongoing tasks he had prepared in September by classifying them according to their urgency. The applicant replied the same day by sending a list which did not comply with the instructions given. Subsequently, on 19 December 2011, after several e-mail exchanges with Ms B. and after complaining about his workload, the applicant finally sent her a new list of the ongoing cases which had been assigned to him, once again without complying with Ms B’s instructions.

195       When challenged about his failure to draw up the list in accordance with his instructions, the applicant merely referred, in an e-mail of 20 December 2011 at 10.32, to Ms B’s “possible lack of (significant) managerial experience/expertise”, stating that the instructions given by Ms B were not the same as those given by her predecessor and that preparing two lists of cases — those “active” and those “suspended” — would “cause [him] significant practical difficulty”, while requesting his line manager to adopt “a relaxed approach”.

196       Furthermore, the applicant sought in his application to justify his attitude by asserting that “[that] list [was] a document serving in principle [the] personal use [of a Legal Officer in the Legal Service]; … a Head of [the Legal Service] does, or at least should, maintain and update… [his] own list of cases [he] assigns to subordinates, especially where the [Legal Service he] heads consists of only three subordinates; … the particular wishes of [the Head of the Legal Service] as to the formatting and categorisation of the content of that list were not constructive, and in any case were neither substantial [n]or crucial”.

197       As the ECDC rightly maintains, preparing a straightforward list of open files is a task which any official or member of staff must be able to perform at short notice at the request of his line manager, without that task entailing numerous e-mail exchanges and the questioning, by the member of staff concerned, of his line manager’s managerial ability. Moreover, such a list is not a “document serving … [the] personal use [of a Legal Officer in the Legal Service]” as claimed by the applicant. It is a basic tool allowing any official or member of staff with managerial duties to have an overview of all the information regarding the progress of the tasks assigned to the members of his team. It is therefore open to any official or member of staff with managerial duties to request his subordinates to prepare such a list in the form which he considers to be most appropriate, without being bound by the format established by his predecessor.

198             Furthermore, the file shows, as the ECDC contends, that the applicant called into question, repeatedly and in an “obstructive and provocative” manner, his line manager’s competence both as Head of Unit and as a lawyer.

199       As an example, it is sufficient to refer, first, to an e-mail of 16 December 2011 at 14.35 in which the applicant wrote to Ms B in the following terms: “… With time, you will probably become more familiar with how data protection works and will be able to set your deadlines more suitably (in this sense: you have never before worked as a Data Protection Officer or have had experience or formal training in this field, have you?) …”

200       Secondly, still on 16 December 2011, at 16.17, the applicant sent Ms B an e-mail containing the following comments: “…may I again ask whether you have worked as Data Protection Officer in the past, or have any other significant pertinent experience or formal training? As mentioned, [your] lack of experience may be a reason why the deadline in question may have been unfeasible to observe. …”

201            Thirdly, in an e-mail of 20 December 2011 at 11.51, the applicant addressed Ms B as follows: “… your view on ‘active case management’ may be erroneous also due to your possible lack of (significant) managerial experience and expertise. If you could let me know what said experience and expertise consists in (I assume that as your subordinate I am entitled to know, aren’t I?), or even a managerial reference source, such as an industry standard or respected scholar, …. then I will be in a better position to ascertain whether your view rests on solid managerial knowledge or not — in the latter case, I will try to be more proactive in pointing out any of your instructions which I see may cause serious practical difficulties in the work of our Section and in our relations with other departments (although, of course, I will remain at your disposal for carrying out your instructions, should you confirm them) …”

202       Fourthly, also on 20 December 2011, the applicant sent another e-mail to Ms B, at 11.58, in which the following passage appears: “I am just wondering whether you have (significant) experience or formal training as manager and as data protection expert and still wonder why you refuse to tell me.”

203       Such e-mails sent by the applicant to his line manager in themselves prove that the Director [of the ECDC] did not commit any manifest error of assessment in finding, in the contested decision, that the applicant had “significant difficulty in accepting management decisions” and “behaved in [a] provocative manner”, thereby leading to an irreparable breakdown in the relationship of trust.

204       The ninth, eleventh and twelfth pleas must therefore be rejected, without it being necessary to examine all the e-mail exchanges between the applicant and Ms B one by one or to order the measures of organisation of procedure requested by the applicant in the application.’

32      So far as concerns the thirteenth plea, alleging breach of the principle of proportionality, the Tribunal held as follows, in paragraphs 207 to 209 of the judgment under appeal:

‘207       The Tribunal notes that, in this plea, the applicant confines himself to mentioning measures which the ECDC could have adopted instead of the termination of his contract, namely the alteration of working conditions within the ECDC, an attempt at mediation, his transfer to another department, the transfer of Ms B to another department or an extension of her probation or, lastly, the imposition of a disciplinary measure of a lesser severity.

208       However, for the applicant to prove breach of the principle of proportionality, it would have been necessary for him to put forward evidence or arguments proving that it would have been genuinely possible for the ECDC to implement the proposed measures, taking account of the fact that the contested decision is based on an irreparable breakdown in the relationship of trust with the ECDC. He has not done so. The various measures suggested by the applicant all presuppose, as the ECDC has observed, if not a relationship of trust between the ECDC and the applicant then, at the very least, the possibility of re-establishing a relationship of trust that has broken down.

209       In those circumstances, the thirteenth plea must be rejected.’

33      So far as concerns the fourteenth plea, alleging the lack of competence of the signatory of the decision rejecting the complaint, the Tribunal held as follows, in paragraphs 211 to 213 of the judgment under appeal:

‘211       In the present case, the Tribunal has already held that the decision rejecting the complaint lack[ed] any independent content ... Therefore, the annulment ... of the decision rejecting the complaint would not affect the legality of the contested decision ...

212       It should be added that, even if the Tribunal were to find that the decision rejecting the complaint is vitiated by a lack of competence and must consequently be annulled, such an annulment would leave in place the contested decision and would be of no benefit to the applicant ...

213       It follows that the fourteenth plea is inoperative and must be rejected.’

34      So far as concerns the fifteenth plea, alleging the lack of competence of the ECDC and the Tribunal to adjudicate on the accusations concerning criminal conduct, the Tribunal held as follows in paragraphs 215 to 217 of the judgment under appeal:

‘215             In actions brought by officials, claims before the EU judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the EU judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it ... The present plea is neither included in the complaint nor closely linked to any plea set out in the complaint, so must be declared inadmissible.

216       In any event, the Tribunal considers that, in order to reject that plea on the merits, it is sufficient to point out that the reason stated for the contested decision was the breakdown in the relationship of trust between the applicant and his management, caused by a series of actions and omissions by the applicant. First, the ECDC, in assessing whether there was a relationship of trust with the applicant, did not make a decision on any issue of criminal law. Secondly, the applicant has brought before the Tribunal an action concerning the legality of the contested decision and the responsibility of the Tribunal is solely to verify whether that decision is vitiated by one of the illegalities raised by the applicant. The Tribunal is therefore not required to resolve any issue of criminal law by ruling on an accusation of criminal conduct.

217       Accordingly, the fifteenth plea must be rejected.’

35      As a result, the Tribunal held in paragraph 218 of the judgment under appeal that it followed from ‘all the foregoing that the plea alleging that, before adopting the contested decision, the AECE did not hear the applicant on the action which it intended to take as a result of his behaviour [had to] be upheld and the contested decision annulled on that ground. The other pleas raised in support of the claim for annulment must be rejected’.

 The claims seeking reinstatement, compensation in respect of material harm and compensation in respect of non-material harm

36      In addition, the Tribunal rejected as inadmissible, in paragraphs 220 and 221 of the judgment under appeal, the claims seeking reinstatement and compensation in respect of the material harm alleged.

37      The Tribunal also rejected in their entirety, in paragraphs 233 to 248 of the judgment under appeal, the claims seeking compensation in respect of non-material harm.

 The order for CJ to refund part of the avoidable expenditure that the Tribunal was forced to incur

38      In the last place, in Case F‑159/12, in paragraphs 252 to 256 of the judgment under appeal, the Tribunal ordered CJ to pay it a sum of EUR 2 000 in order to refund part of the avoidable expenditure which the Tribunal was forced to incur:

‘252             [U]nder Article 108(a) of the Rules of Procedure, where the Tribunal has incurred expenditure which might have been avoided, it may order the party that caused it to incur that expenditure to refund it.

253       In the present instance, in Case F‑159/12 the applicant twice lodged statements in reply which did not comply with the instructions of the Tribunal as regards the number of pages and the issues to be examined. The applicant also twice refused to put his reply in order, despite the Tribunal’s requests for him to do so.

254       Moreover, by letter of 16 October 2013, the Tribunal drew to the applicant’s attention the option for the Tribunal to order a party who has caused avoidable expenditure to refund it, pursuant to Article 94(a) of the Rules of Procedure then in force, the content of which does not substantially differ, in terms of the conditions under which a party may be ordered to refund that expenditure, from that of Article 108(a) of the currently applicable Rules of Procedure. In that letter the Tribunal reminded the applicant of the case-law of the General Court concerning the analogous provisions of its Rules of Procedure, in particular the judgment in Strack v Commission (EU:T:2012:691). Lastly, at the hearing the applicant stated his view on the possibility that the Tribunal might decide to order him, under Article 94(a) of [its] Rules of Procedure then in force, to refund to the Tribunal the expenditure which it was unnecessarily forced to incur as a result of his conduct.

255       There is no doubt that the administrative handling and analysis of the two replies which were not in conformity with the Tribunal’s instructions entailed expenditure which might have been avoided ...

256            It is therefore appropriate, having regard to the amount of the expenditure which the Tribunal was forced to incur and which might have been avoided, to order the applicant to refund to the Tribunal part of that expenditure, namely a sum of EUR 2 000 ...’

 Procedure before the General Court and forms of order sought

39      By pleading lodged at the General Court Registry on 14 July 2015, the ECDC brought the present appeal. After CJ had lodged a statement in defence, dated 29 October 2015, the ECDC was authorised to submit a reply, which it did on 15 January 2016. CJ lodged a rejoinder on 22 February 2016.

40      Under Article 207(2) of its Rules of Procedure, on a proposal from the Judge-Rapporteur, the General Court may, if it considers that it has sufficient information available to it from the material in the file, decide to rule on the appeal without an oral part of the procedure. In the present case, on a proposal from the Judge-Rapporteur, the General Court, notwithstanding the fact that the ECDC submitted a request for a hearing within three weeks after service of notification of the close of the written part of the procedure, and having regard in particular to CJ’s observations dated 1 April 2016 on that request, considers that it has sufficient information available to it from the material in the file and has decided to rule on the appeal without taking further steps in the proceedings.

41      The ECDC claims that the Court should:

–        set aside the judgment under appeal so far as the ground challenged in the present appeal is concerned;

–        order CJ to pay the costs.

42      CJ contends that the Court should:

–        dismiss the appeal;

–        order the ECDC to pay the costs.

 Law

43      The ECDC puts forward two grounds in support of its appeal. The first ground alleges that the Tribunal committed an error of law as regards the scope of the right to be heard. The second ground alleges that the Tribunal committed an error of law in the conclusion it reached further to the assessment of the issue whether, in the absence of the alleged irregularity, the procedure might have led to a different result.

 Preliminary observations

44      It must be recalled at the outset that in the judgment under appeal the Tribunal rejected all the pleas put forward by CJ except the first plea alleging breach of the right to be heard (see, specifically, the third complaint of the first plea in law, in paragraphs 122 to 131 of the judgment under appeal, reproduced in paragraph 23 above, and paragraphs 235 and 249 of the judgment under appeal).

45      The Tribunal, in finding that the contested decision should be annulled, first held, in paragraphs 122 and 123 of the judgment under appeal, that CJ was not given the opportunity to submit observations on the action which the AECE intended to take as a result of his conduct and, in particular, on the fact that it intended to terminate his contract on the basis of Article 47(b)(ii) of the CEOS. Secondly, in paragraphs 124 to 130 of the judgment under appeal, the Tribunal examined whether the procedure might have led to a different result were that infringement of the right to be heard not to have taken place. In the present case, the Tribunal concluded that it could not rule out the possibility that, had CJ been heard before the AECE decided to terminate his contract, he might have been able to persuade the AECE to adopt a different decision.

46      The abovementioned two steps in the Tribunal’s reasoning are the only steps challenged by the ECDC in the appeal, which does not concern any of the other findings reached by the Tribunal in the judgment under appeal.

 The first ground: error of law allegedly committed as regards the scope of the right to be heard

47      First, the ECDC submits that the right to be heard is restricted to the allegations made by the AECE against the person concerned and the information taken into account in order to substantiate those allegations. However, that right does not include the obligation to hear that person on the action which the AECE intends to take, after hearing him, as a result of the events. In the present case, the Tribunal conferred too wide a scope on the right to be heard, so that it encompassed not only the allegations made against CJ but also the action which might be taken as a result.

48      The ECDC also observes that the effect of the approach adopted by the Tribunal is to restrict the ECDC’s discretion by pre-empting its action. Where there has been wrongful conduct, apart from in the situation in which the AECE intends to dismiss a member of staff without notice, there is nothing which obliges it to initiate disciplinary proceedings rather than using the option of unilaterally terminating the contract provided for in Article 47(b)(ii) of the CEOS. The exercise of the right to be heard is not intended to protect the interests of the person concerned having regard to any particular measure which may be adopted.

49      Secondly, the ECDC claims that the approach adopted by the Tribunal regarding the scope of the right to be heard is contradicted by some of the findings made in the judgment under appeal, regarding the content of the final report on insubordination or the contested decision, from which it is apparent that CJ could not have been unaware that the ECDC might envisage terminating his contract when he was invited to express his observations on the acts of which he was accused. Thus, in the final report on insubordination, the investigator had ‘issued the opinion that the applicant had breached his obligations to the ECDC, thereby warranting the initiation of disciplinary proceedings’ (paragraph 116 of the judgment under appeal). That clearly indicates that the conduct with which the investigation in question was concerned presented a degree of gravity which could, in turn, lead to a decision to terminate the appellant’s contract. Having regard to the role of ‘Legal assistant’ filled by CJ within the ECDC, he was in a position to understand that the AECE might envisage terminating his contract on the basis of the relevant provisions of the Staff Regulations and the CEOS. The Tribunal erred in law in assuming that CJ was not able to understand that fact.

50      CJ disputes the ECDC’s line of argument.

51      First, he submits, the ECDC has failed to have regard to the contents of the judgments of 25 September 2012, Bermejo Garde v EESC (F‑41/10 EU:F:2012:135, paragraphs 114 to 118) and that of 15 April 2015, Pipiliagkas v Commission (F‑96/13, EU:F:2015:29, paragraph 57), where the person concerned was given the opportunity to be heard on the measure envisaged. (The measure concerned was reassignment, that is to say a much more lenient measure than that taken against CJ). The Tribunal’s findings also reflect common practice within the administration. Moreover, there is nothing to indicate how the approach followed by the Tribunal pre-empts the ECDC’s action where there has been wrongful conduct on the part of a member of staff. It is also difficult to understand how having the possibility to express one’s observations on the measure envisaged is of no consequence, as suggested by the ECDC.

52      Secondly, CJ observes, in essence, that at no point did the ECDC mention Article 47(b)(ii) of the CEOS. Furthermore, even if he had been aware that the ECDC might envisage the termination of his contract, that still would not have been sufficient to convey to him that that was the outcome envisaged in his case. Other measures could have been envisaged.

 Findings of the Court

53      It must be recalled, as it was by the Tribunal in the judgment under appeal, that observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard is inherent (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).

54      The right to be heard is now affirmed not only in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 of the Charter, which guarantees the right to good administration. Article 41(2) provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him adversely is taken (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 29 and the case-law cited).

55      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 as regards the information on which the administration intends to base its decision (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 30 and the case-law cited). The right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (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, paragraphs 31 and 39 and the case-law cited).

56      It is not disputed in the present case that the decision to terminate CJ’s contract before its expiry on the basis of Article 47(b)(ii) of the CEOS is an individual measure which would affect its addressee adversely. CJ therefore had the right to be heard before the adoption of the contested decision, even if that provision does not specifically provide for such a right.

57      Therefore such a decision can be taken only after the person concerned has been given the opportunity to effectively make known his views concerning the draft decision, in the context of an oral and/or written exchange of views initiated by the AECE, proof of which must be adduced by the latter (see, to that effect, judgments of 6 December 2007, Marcuccio v Commission, C‑59/06 P, EU:C:2007:756, paragraph 47, and of 3 June 2015, BP v FRA, T‑658/13 P, EU:T:2015:356, paragraphs 54 and 56).

58      The ECDC, in this connection, submits that the Tribunal erred in law in holding that the right to be heard encompassed the obligation to hear CJ on the action which the AECE intended to take as a result of his conduct, were it to be established. In essence, for the ECDC, the right to be heard should cover only the information relied on by the AECE against CJ for the purposes of establishing that he had breached his obligations, and not any action which might be taken by the AECE as a result of such a failure on CJ’s part.

59      Such a restriction of the right to be heard cannot be accepted. It is apparent from Article 41(2)(a) of the Charter of Fundamental Rights that every person has the right to be heard by the administration before any individual measure which would affect him or her adversely is taken.

60      The addressee of a decision which affects that person adversely must thus have been given the opportunity of effectively making his views known on the information on which the administration intends to base that decision. To comply with the right to be heard, the administration must therefore not only bring to the knowledge of the person concerned the various items of information in question, but also inform him in sufficient detail, at the stage when that person is called upon to submit his observations, what action may be taken on the basis of that information (see paragraphs 55 and 57 above and the case-law cited).

61      In the present case, it was just as important for the person concerned to know, in accordance with his right to be heard, that (i) due to the reasons of which he had been informed, the AECE took the view that he had breached his obligations to the ECDC as it was that (ii) having regard to that breach, the AECE intended to terminate his contract prior to its expiry, on completion of a period of notice and with compensation equal to one-third of his basic salary for the period between the date when his duties ended and the date when his contract expired. In such a way, the person concerned could submit his observations both on the accusations in his regard and on the consequences envisaged were the AECE to take the view that those accusations were well founded.

62      The right to be heard responds to a twofold concern. In the first place, it enables the person concerned to challenge and refute the allegations against him before the administration decides to adopt an act which may adversely affect him. In the second place, it is also intended 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 (Opinion of Advocate General Bot in M.M., C‑277/11, EU:C:2012:253, paragraphs 35 and 36, and judgment of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraph 49).

63      In observing in paragraph 122 of the judgment under appeal that it was apparent from the file that the AECE had never mentioned the possibility that a decision might be taken to terminate CJ’s contract on the basis of Article 47(b)(ii) of the CEOS, the Tribunal thereby concluded, without committing any error of law, that the ECDC had infringed CJ’s right to be heard, since he had not been given the opportunity to submit observations on the action which the AECE was planning to take as a result of his behaviour and, in particular, on the fact that it intended to terminate his contract under the aforementioned provision.

64      That conclusion is unaffected by the other arguments put forward by the ECDC in this ground of appeal.

65      The approach adopted by the Tribunal does not affect the discretion granted, under case-law, to the AECE to decide, in the event of wrongful conduct, to terminate the contract of a member of the contract staff without initiating disciplinary proceedings (see paragraphs 81 and 82 of the judgment under appeal, reproduced in paragraph 21 above, which cite that case-law in rejecting the first preliminary plea and the tenth plea raised in support of the claim for annulment of the contested decision). With regard to the right to be heard, it is important merely to give the person concerned the opportunity effectively to make known his views regarding the decision envisaged by the AECE in his respect.

66      Likewise, contrary to what the ECDC submits, it cannot be held that the approach adopted by the Tribunal was of no consequence for CJ, since the AECE cannot make any assumptions as regards the contents of the observations of the person concerned on the decision envisaged unless it has disclosed to him all the information enabling him to effectively make known his views in that regard. It is indeed in the light of his observations that it is possible to assess the proportionality of any measure decided upon by the AECE at the end of the procedure.

67      Furthermore, for the same reason, since it had not enabled CJ to effectively make known his views as to the decision envisaged by the AECE with regard to him, the ECDC cannot claim, to make good the breach of that fundamental principle of EU law, that it may be held that CJ himself was capable of determining what the measure to be adopted by the AECE at the end of the procedure would be. It is not disputed that, before the adoption of the contested decision, the AECE had not ever mentioned the possibility of adopting a decision terminating CJ’s contract on the basis of Article 47(b)(ii) of the CEOS. In that regard, it must be stated that the various statements mentioned by the ECDC in support of its arguments, besides the fact that they were not made by the AECE, did not refer to such a termination decision but rather suggested that disciplinary proceedings might have been initiated, which would have provided the person concerned with the safeguards of an adversarial procedure, or remained vague. Even if the person concerned can be assumed to have been capable of determining the various options available to the AECE, there was nothing allowing him to ascertain that the measure envisaged was that provided for under Article 47(b)(ii) of the CEOS. 

68      It follows from the foregoing that the first ground of appeal must be rejected as unfounded.

 The second ground, alleging that the Tribunal committed an error of law in the conclusion it reached further to the assessment of the issue whether, in the absence of the breach of the right to be heard, the procedure might have led to a different result.

 Arguments of the parties

69      The ECDC submits that the Tribunal’s assessment was contradictory when it examined whether, in the absence of any breach of the right to be heard, the procedure might have led to a different result. The ECDC submits that, since the Tribunal acknowledged that the relationship of trust was broken as a result of behaviour on which the person concerned was given the opportunity to comment, the outcome would not have been different even if that person had been heard on the action which the AECE intended to take as a result of that behaviour. It claims that the Tribunal erred in law in finding that, in the absence of the alleged irregularity, the procedure might have led to a different result.

70      CJ disputes the ECDC’s line of argument.

71      In essence, he submits that the breach by a member of staff of his obligations does not require the AECE to take measures against that member of staff, but enables it to do so. Thus, the AECE could have reassigned the person concerned or his line manager to another department. The ECDC could also have decided to adopt a more lenient measure than the termination of his contract, which would have induced CJ to re-consider his behaviour. It therefore cannot be ruled out that, at the time when the termination was envisaged, CJ could have persuaded the AECE to adopt another measure, could he have known of the action that the AECE intended to take as a result of his behaviour. Moreover, even if the AECE had taken the view that CJ could not, in any event, remain in the ECDC’s service, it could have allowed him to resign. Lastly, had CJ been informed of the possibility of the termination of his contract, he could have made a greater effort to comply with the very tight time limits he was given within which to submit observations.

 Findings of the Court

72      It must be observed, as it was by the Tribunal in the judgment under appeal, that for an infringement of the right to be heard to result in the annulment of the contested decision in the present case, it is necessary to examine whether, had it not been for such an irregularity, the outcome of the procedure might have been different (see, to that effect, 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 79 and the case-law cited).

73      As was also observed by the Tribunal in the judgment under appeal, 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 object of that rule is, in particular, 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 (see judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 65 and the case-law cited).

74      In the present case, the Tribunal took various factors into consideration in support of its finding in paragraph 130 of the judgment under appeal, according to which it was not able to rule out the possibility that, had the applicant been heard before the AECE decided to terminate his employment contract under Article 47(b)(ii) of the CEOS, he might have persuaded it to adopt a different decision.

75      First, the Tribunal held that the contested decision was based on the ‘irreparable breakdown in the relationship of trust with the applicant due to a long series of inappropriate actions on his part and that the applicant [had] had the opportunity to state his views, several times, on the behaviour of which he was accused’ (paragraph 127 of the judgment under appeal).

76      Secondly, the Tribunal observed that, ‘[h]owever, it is apparent from the file, and in particular from the facts as established in the final report on insubordination, that the behaviour of which the applicant is accused did not begin until Ms B was appointed Head of the Legal Service and, consequently, became his line manager’. Likewise, the Tribunal held that ‘[a]lthough the ECDC stated, at the hearing, that it was impossible to transfer the applicant to another post in the present case, that contention was not supported by any evidence of that alleged state of affairs which, moreover, is in no way apparent from the file. It is therefore evident that the AECE did not consider any solution to the insubordination found to have been committed by the applicant other than the termination of his contract’ (paragraph 128 of the judgment under appeal).

77      Third, the Tribunal moreover observed that ‘[t]he decision to end the contract of a member of the contract staff before its expiry, however warranted, constitute[d] an act of extreme seriousness’. In that context, the Tribunal stated that, ‘[b]esides the fact that this is a fundamental right of the member of staff concerned, the exercise by the latter of the right to state his views effectively on the dismissal decision envisaged [fell] within the AECE’s responsibility, a responsibility which it [had] scrupulously [to] comply with (paragraph 129 of the judgment under appeal).

78      It is apparent from the foregoing that, contrary to what is maintained by the ECDC, the Tribunal’s reasoning is not contradictory. It correctly takes into account the relevant information in examining whether, had CJ’s right to be heard as to the action which the AECE intended to take as a result of his behaviour not been infringed, the procedure could have led to a different result.

79      That reasoning has regard both to the information specific to CJ’s situation, in particular the behaviour of which he was accused, which is characterised by the fact that, since the appointment of the new Head of Service, he had behaved inappropriately on several occasions and that he had been given the opportunity to comment on that behaviour and to the information relating to the measure envisaged, from which it is apparent that CJ was not informed of that measure and was therefore unable to put forward observations which could have influenced its nature or effects.

80      As the Tribunal correctly noted in paragraph 129 of the judgment under appeal, to hold that the AECE would necessarily have adopted an identical decision even after hearing CJ would render meaningless the fundamental right to be heard enshrined in Article 41(2)(a) of the Charter of Fundamental Rights, since the very content of that right implies that the person concerned has the possibility of influencing the decision-making process at issue (see, to that effect, judgment of 14 September 2011 in Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 115).

81      It follows from the foregoing that the second ground must be rejected as unfounded, since the Tribunal made a correct legal classification of the facts in the present case and therefore did not err in law.

82      Since all the grounds of appeal raised by the ECDC have been rejected, the appeal in its entirety must be dismissed.

 Costs

83      In accordance with Article 211(2) of the Rules of Procedure of the General Court, where an appeal is unfounded, the Court is to make a decision as to costs.

84      Under Article 134(1) those Rules, which apply to the procedure on appeal by virtue of Article 211(1) of those Rules, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

85      Since the ECDC has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by CJ. 

On those grounds,

THE GENERAL COURT (Appeal Chamber)

hereby:

1.      Dismisses the action;

2.      Orders the European Centre for Disease Prevention and Control (ECDC) to pay the costs.

Delivered in open court in Luxembourg on 5 October 2016.

[Signatures]

Table of contents

Background to the dispute

Procedure before the Civil Service Tribunal

Judgment under appeal

Claim for annulment of the contested decision

The claims seeking reinstatement, compensation in respect of material harm and compensation in respect of non-material harm

The order for CJ to refund part of the avoidable expenditure that the Tribunal was forced to incur

Procedure before the General Court and forms of order sought

Law

Preliminary observations

The first ground: error of law allegedly committed as regards the scope of the right to be heard

Findings of the Court

The second ground, alleging that the Tribunal committed an error of law in the conclusion it reached further to the assessment of the issue whether, in the absence of the breach of the right to be heard, the procedure might have led to a different result.

Arguments of the parties

Findings of the Court

Costs

* Language of the case: English

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