Judgments nº T-742/15 P of Tribunal General de la Unión Europea, July 19, 2017

Resolution DateJuly 19, 2017
Issuing OrganizationTribunal General de la Unión Europea
Decision NumberT-742/15 P

In Case T-742/15 P,

APPEAL brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 8 October 2015, DD v FRA (F-106/13 and F-25/14, EU:F:2015:118), seeking to have that judgment set aside in part,

DD, residing in Vienna (Austria), represented initially by L. Levi and M. Vandenbussche, and subsequently by L. Levi, lawyers,

appellant,

the other party to the proceedings being

European Union Agency for Fundamental Rights (FRA), represented by M. O’Flaherty, acting as Agent, assisted by B. Wägenbaur, lawyer,

defendant at first instance,

THE GENERAL COURT (Appeal Chamber),

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

Registrar: E. Coulon,

gives the following

Judgment

1 By his appeal, lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, DD, a former member of the temporary staff of the European Union Agency for Fundamental Rights (FRA), seeks to have set aside in part the judgment of the European Union Civil Service Tribunal (Second Chamber) of 8 October 2015, DD v FRA (F-106/13 and F-25/14, ‘the judgment under appeal’, EU:F:2015:118), by which the Tribunal upheld the actions brought by the appellant in part, annulling the decision of 20 February 2013 of the Director of the FRA imposing a reprimand on him and annulling the decision of 13 June 2013 of the Director of the FRA concerning the termination of his temporary staff contract.

Background to the dispute

2 The facts giving rise to the dispute are set out as follows in paragraphs 9 to 35 of the judgment under appeal:

‘9 The applicant was recruited as a Legal Affairs Officer by the European Monitoring Centre on Racism and Xenophobia (EUMC), under a contract as a member of the temporary staff within the meaning of Article 2(a) of the Conditions of Employment of Other Servants of the European Communities and for a renewable four-year term beginning on 1 August 2000.

10 The applicant’s contract was renewed for another four-year term from 1 August 2004, and then converted into a contract of indefinite duration from 16 December 2006.

11 The FRA was established by Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (OJ 2007 L 53, p. 1), replacing the EUMC.

12 On 1 June 2008, Mr A was appointed Director of the FRA (“the Director”).

13 By an e-mail of 18 May 2009, the applicant complained to the Director that he was the victim of “ethnic discrimination”, arguing that, in the context of the reorganisation of the FRA, he had been passed over for the position of Acting Head, and then Head, of the Freedoms and Justice Department as a result of his ethnicity.

14 On 4 and 8 May 2012, in the context of the appraisal exercise relating to 2011 and the compilation of the career development report (CDR) for that year (“the 2011 CDR”), the applicant carried out his self-assessment and forwarded this to his line manager and reporting officer, Ms B, Head of the Freedoms and Justice Department. In the “Conduct in the service” part of his self-assessment, the applicant remarked that Ms B’s management approach with regard to him “[was] not very motivating and quite discriminatory because [his colleagues] enjoy[ed] career perspectives and expectations of promotion which [he had] no access to”.

15 On 25 May 2012, Ms B drew up a first draft of the 2011 CDR, followed by a second draft of the 2011 CDR dated 7 June 2012.

16 On 13 June 2012, the applicant brought an internal appeal in accordance with the rules then in force at the FRA against the second draft of the 2011 CDR (“the internal appeal”). The internal appeal was reasoned as follows:

“I cannot agree to [the 2011 CDR]. [The 2011 CDR] is biased, affected by a conflict of interests, discriminatory, factually inaccurate. It does not fully reflect the [appraisal interview] and the procedure applied does not correspond to the [rules in the] Staff Regulations and valid implementing rules of the FRA. The assessment of my [Head of Department] is punitive as a reaction to complaints of discrimination reflected in [the 2011 CDR] and earlier CDRs and constitutes [an] abuse of power[s]. For all these reasons I appeal.”

17 On 18 July 2012, the Director invited the applicant to “substantiate [his] claims that the [2011] CDR [was] biased, discriminatory, and that it [did] not fully reflect the [appraisal interview]” and to explain in what way the 2011 CDR constituted an “abuse of power[s]”.

18 By note of 14 September 2012, the applicant provided the requested explanations. So far as concerns, in particular, the complaint alleging that the 2011 CDR was discriminatory, that note contained the following passage:

“B. The [2011] CDR is discriminatory

The reporting officer makes statements which are discriminatory. [His] key message during the CDR talk was discriminatory: [he] said that the jobholder should not expect any promotion for the foreseeable future [and that] if [he wanted] a promotion, he should apply for a job elsewhere …

Examples …:

  1. … The workload of the jobholder is not equivalent to others; rather the reporting officer pays attention, for no objective reason, only to the workload of some staff members, but not to the workload of the jobholder. … This difference in the level of attention and care by the reporting officer is discriminatory. …

  2. The negative assessment of the reporting officer is also a reprisal for complaints of discrimination by the jobholder and amounts to victimisation under [Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22)]. The jobholder complained about discrimination in his self-assessment and as a consequence negative statements were made by the reporting officer as a response and also to ex post justify [his] discriminatory treatment of the jobholder (the jobholder was passed over as team coordinator during a restructuring of the [FRA] and also [was] not allowed to participate in team coordinator meetings where important discussions take place and important decisions are taken and where the jobholder is forbidden to contribute). The reporting officer should explain why there were no similar negative statements made during the course of the year by the reporting officer, only after receiving the complaints contained in the self-assessment of the jobholder.”

    19 By letter of 9 November 2012, the Director informed the applicant that, “in the light of the words used and their tone in [his internal] appeal”, he had decided to launch an administrative enquiry pursuant to Articles 50a of the CEOS and 86(2) of the Staff Regulations [of Officials of the European Union (“the Staff Regulations”)] and Articles 1 and 2 of Annex IX to those Staff Regulations (“the administrative enquiry”). According to the Director, the way in which the applicant’s internal appeal was phrased “could amount to a breach of [his] obligation … to act with due respect, dignity and loyalty, as provided in [A]rticle 11 of the [CEOS] and [A]rticles 11, 12 and 21 of the [Staff Regulations]”.

    20 On 12 November 2012, the Director dismissed the internal appeal. In respect of, in particular, the complaint alleging that the 2011 CDR was discriminatory, the Director gave the following answer:

    “Here again the accusation is very grave, all the more since, after some examples of alleged ‘discrimination’, you qualify the negative assessments of your [Head of Department] as … ‘victimisation under [D]irective [2000/43]’. [That] directive [is aimed] concretely at prohibiting discrimination based on … race and/or ethnic origin, in other words [at fighting] racism.

    This is one of the more serious accusations, if not the most serious, that one can make.

    However, I found no evidence supporting this claim in your [internal] appeal.

    …”

    21 By decision of 13 November 2012, the Director transferred the applicant, with effect from 1 January 2013, to the Equality and Citizen’s Rights department, directed by Mr C.

    22 On 27 November 2012, the applicant was informed that the Director had appointed Mr D to conduct the administrative enquiry (“the enquirer”) and was invited to an interview with that enquirer on 5 December 2012.

    23 By note of 30 November 2012 to the Director, the applicant requested the “annulment” of the administrative enquiry on the ground that it was vitiated by irregularities. In particular, according to the applicant, the decision opening the administrative enquiry, by simply referring to the words and tone used in the internal appeal, “could indeed appear vague considering the several pages of [the internal] appeal and not enable [him] to properly prepare [his] defence”.

    24 By note of 3 December 2012, the Director informed the applicant of his refusal to annul the administrative enquiry. While explaining that it was exclusively for the enquirer to identify the passages of the internal appeal which constituted misconduct, the Director added the following remarks:

    “However, if you are interested in my own personal opinion, since it is on the basis of such [an] opinion that I decided to launch the [administrative] enquiry, I invite you to re-read my reply to your [internal] appeal. While I consider racism one of the major flaws of our society, I am also very sensitive to unfounded and unsubstantiated accusations of racism. And my position, apparently contrary to yours, is that Article 9 of Directive 2000/43 may not be interpreted as [requiring] Member States to grant immunity for such accusations. But, here again, the issue will be addressed by the [e]nquirer.”

    25 On 5 December 2012, the applicant’s interview with the enquirer took place.

    26 On 12 February 2013, the enquirer delivered the report he had drawn up of the administrative enquiry to the Director.

    27 At a hearing on 20 February 2013 whose purpose was to hear...

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