Orders nº T-696/16 REV and T-697/16 REV of The General Court, April 27, 2017

• Resolution Date: April 27, 2017
• Issuing Organization: The General Court
• Decision Number: T-696/16 REV and T-697/16 REV

(Procedure - Application for revision - Civil service)

In Joined Cases T-696/16 REV and T-697/16 REV,

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

applicant,

v

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

defendant,

APPLICATION for revision of the judgment of the European Union Civil Service Tribunal of 29 April 2015, CJ v ECDC (F-159/12 and F-161/12, EU:F:2015:38),

THE GENERAL COURT (First Chamber),

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

Registrar: E. Coulon,

makes the following

Order

Factual background to the application

Initial facts and proceedings before the Civil Service Tribunal

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

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

3 By decision of the Director of the ECDC, notified to the applicant for revision on 24 February 2012 (‘the termination decision’), the applicant for revision’s contract as a contractual agent was terminated under Article 47(b)(ii) of the Conditions of Employment of Other Servants of the European Union (‘CEOS’), subject to two months’ notice expiring on 30 April 2012 and payment of financial compensation equivalent to one third of the base salary for the remaining part of the duration of the contract.

4 The reason for the decision to terminate the contract was, in essence, an irreparable breakdown in the relationship of trust between, on the one hand, the applicant for revision and, on the other, the Director and other staff of the ECDC, which resulted from the applicant for revision’s persistent insubordination, characterised by serious difficulties in accepting management decisions, repeated refusals to perform the tasks entrusted to him, and obstructionist and provocative behaviour. That decision referred in particular to the conclusions of the final report of an administrative investigation into allegations of failure to comply with the obligations arising from Articles 21 and 21a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) brought by Ms B with regard to the applicant for revision.

5 After having lodged an unsuccessful complaint against the decision to terminate the contract, CJ brought an action before the European Union Civil Service Tribunal seeking annulment of that decision and compensation in respect of the harm that allegedly arose from that decision. The action was registered as Case F-159/12.

6 The Civil Service Tribunal ruled on that action and on another action, registered as Case F-161/12, seeking compensation for alleged non-material harm, brought by CJ against the ECDC, by judgment of 29 April 2015, CJ v ECDC (F-159/12 and F-161/12, EU:F:2015:38, ‘the original judgment’).

7 By the original judgment, the Civil Service Tribunal annulled the termination decision on the basis of CJ’s first plea in law, alleging infringement of the right to be heard. All the other pleas submitted by him in support of his action were examined and rejected.

8 Having regard to a fact claimed in the context of the application for revision, it should be pointed out that this was the same as that used, in particular, in the 9th, 11th and 12th pleas in law, which, as stated in paragraph 7 above, were rejected by the Civil Service Tribunal, alleging manifest errors of assessment of the facts. In the context of those pleas, CJ, first, disputed being responsible for the serious conflict that he had had with Ms B, which was referred to in the termination decision and responsibility for which was attributed to him without proof. Second, he called into question whether all the behaviour of which he was accused in the termination decision actually took place, in particular a series of acts of insubordination reported by Ms B, which allegedly took place between 10 January and 24 February 2012, whereas Ms B was not credible since, inter alia, she was unsuited to her post. Third, he denied, in essence, the impartiality of the administrative inquiry that had been conducted concerning the accusations of insubordination, on the basis that exculpatory evidence was systematically omitted by the investigator.

9 In paragraphs 188 to 190 of the original judgment, the Civil Service Tribunal stated that, first, the termination decision, adopted pursuant to Article 47(b)(ii) of the CEOS was based on CJ’s behaviour which led to an irreparable breakdown in the relationship of trust between him and the ECDC and that, in that context, the authority empowered to conclude contracts of employment has broad discretion, the EU Court’s review being limited to determining that there has been no manifest error or misuse of powers. Second, the Civil Service Tribunal noted that in the present case an irreparable breakdown in the relationship of trust between CJ and his management was due to CJ’s sequence of behaviour between November 2011 and February 2012, including, in particular, significant difficulty in accepting management decisions as well as the fact that he repeatedly refused to perform tasks and behaved in an obstructive and provocative manner.

10 In that regard, the Civil Service Tribunal found, in the first place, in paragraphs 192 to 197 of the original judgment, a series of facts establishing that CJ had repeatedly refused to comply with simple requests or legitimate instructions, normally not likely to call into question the managerial capacities of the line manager who gave those instructions. In the second place, the Civil Service Tribunal found, in paragraphs 191, 196 and 198 to 202 of that judgment, a series of facts which show that the applicant had on several occasions obstructively and provocatively challenged the competence as head of department and as a lawyer of his direct line manager, Ms B.

11 On that basis, the Civil Service Tribunal held, in paragraph 203 of the original judgment, that the author of the contested decision had not committed a manifest error of assessment of the facts by finding that CJ had significant difficulty in accepting management decisions and had behaved in a provocative manner, with the consequence of an irreparable breakdown in the relationship of trust.

12 In addition, the Civil Service Tribunal dismissed all of CJ’s claims for damages.

Appeal proceedings before the General Court

13 The original judgment was the subject of an appeal before the General Court.

14 By its judgment of 5 October 2016, CJ v ECDC (T-370/15 P...