Judgments nº T-286/15 of Tribunal General de la Unión Europea, October 25, 2018

• Resolution Date: October 25, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-286/15

(Actions for annulment and for compensation - SatCen staff - Members of the contract staff - Jurisdiction of the EU judicature - Common foreign and security policy - Article 24 TEU - Articles 263, 268, 270 and 275 TFEU - Article 47 of the Charter of Fundamental Rights - Equal treatment - Decisions 2014/401/CFSP and 2009/747/CFSP - SatCen’s Appeals Board - Plea of illegality - Request for assistance - Manner in which the administrative investigation was carried out - Suspension - Disciplinary proceedings - Removal - Principle of sound administration - Requirement of impartiality - Right to be heard - Access to the file - Non-contractual liability - Premature claim for damages - Non-material damage)

In Case T-286/15,

KF, represented by A. Kunst, lawyer, and N. Macaulay, Barrister,

applicant,

v

The European Union Satellite Centre (SatCen), represented by L. Defalque and A. Guillerme, lawyers,

defendant,

supported by

Council of the European Union, represented by F. Naert and M. Bauer, acting as Agents,

intervener,

ACTION, first, pursuant to Article 263 TFEU for annulment of the decisions of the Director of SatCen of 5 July 2013 to initiate disciplinary proceedings against the applicant, to suspend the applicant and to reject her request for assistance and of 28 February 2014 to remove the applicant, and the decision of SatCen’s Appeals Board of 26 January 2015 confirming those decisions and, second, pursuant to Article 268 TFEU seeking compensation for the harm allegedly suffered,

THE GENERAL COURT (Ninth Chamber, Extended Composition),

composed of S. Gervasoni, President, L. Madise, R. da Silva Passos (Rapporteur), K. Kowalik-Bańczyk and C. Mac Eochaidh, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 26 October 2017,

gives the following

Judgment

1. Background to the dispute

   A. European Union Satellite Centre

   1 The European Union Satellite Centre (SatCen) originates from the decision of the Council of Ministers of the Western European Union (‘the WEU’) of 27 June 1991 setting up a satellite data operating centre and adopted on the basis of the decision of the Council of 10 December 1990 on space cooperation within the WEU. As provided in the decision of the Council of Ministers of the WEU of 27 June 1991, the WEU Satellite Centre was set up as a subsidiary body of the WEU and did not have legal personality separate from the WEU.

   2 By its declaration made in Marseille (France) on 13 November 2000, the Council of Ministers of the WEU noted the agreement in principle of the Council of the European Union, dated 10 November 2000, regarding the creation, in the form of an agency within the European Union, of a satellite centre incorporating the relevant features of the centre set up within the WEU.

   3 Thus, by Council Joint Action 2001/555/CFSP of 20 July 2001 (OJ 2001 L 200, p. 5), SatCen was set up and became operational as of 1 January 2002. Recital 4 of that joint action states that the ‘European Union Satellite Centre should have legal personality, while maintaining close links with the Council and having due regard for the general political responsibilities of the European Union and its institutions’.

   4 On 30 March 2010, by joint declaration, the Member States of the WEU officially dissolved that organisation with effect from 30 June 2011, on account in particular of the fact that ‘with the entry into force of the Lisbon Treaty, a new phase in European security and defence [has begun] ’.

   5 Subsequently, the Council adopted Decision 2014/401/CFSP of 26 June 2014 on SatCen and repealing Joint Action 2001/555/CFSP on the establishment of a European Union Satellite Centre (OJ 2014 L 188, p. 73), which henceforth constitutes the legal framework applicable to SatCen.

   6 It is apparent from recital 2 and from Article 5 of that decision that SatCen functions as a ‘European autonomous capability’ and that it has the legal personality necessary to perform its functions and attain its objectives.

   7 According to Article 2(1) and (3) of that decision, SatCen’s core tasks are to support the decision making and actions of the Union in the field of the common foreign and security policy (CFSP) and in particular the common security and defence policy (CSDP), including European Union crisis management missions and operations, by providing, at the request of the Council or the High Representative of the Union for Foreign Affairs and Security Policy, products and services resulting from the exploitation of relevant space assets and collateral data, including satellite and aerial imagery, and related services.

   8 Article 3(1) and (2) of Decision 2014/401 specifies that the Political and Security Committee (PSC), under the responsibility of the Council, is to exercise political supervision over SatCen’s activities and issue political guidance on SatCen’s priorities, whilst the High Representative of the Union for Foreign Affairs and Security Policy is to give it operational direction.

   9 SatCen is composed of three operational divisions, namely an Operations Division, a Capability Development Division and an IT Division. Moreover, SatCen has an Administration Division and a Finance Unit.

   10 As provided in Article 7(3) of Decision 2014/401, the Director of SatCen is to be the legal representative of that body. Under Article 7(4) and the second paragraph of Article 7(6)(e) of Decision 2014/401, that director is (i) to be responsible for recruiting all other SatCen staff and (ii) to be competent for all personnel matters.

   11 As provided in Article 8(1) and (3) of Decision 2014/401, SatCen’s staff is composed of contract staff, appointed by the Director of SatCen, and of seconded experts. Article 8(5) of that decision confers on the Board the power to draw up, on a proposal from the Director, SatCen staff rules which are to be adopted by the Council. On the basis of an identical provision, the Council, within the framework of Joint Action 2001/555, adopted Decision 2009/747/CFSP of 14 September 2009 concerning the Staff Regulations of SatCen (OJ 2009 L 276, p. 1; ‘the SatCen Staff Regulations’).

   12 As regards disputes between SatCen and its staff members in respect of matters covered by the SatCen Staff Regulations, Article 28(5) of the SatCen Staff Regulations provides as follows:

   ‘Having exhausted the possibilities of the first resort (an internal administrative appeal), staff members shall be at liberty to seek a settlement before [SatCen’s] Appeals Board.

   The composition, operation and specific procedures of that body are given in Annex X.’

   13 Under Article 28(6) of the SatCen Staff Regulations, it is provided as follows:

   ‘Decisions of the Appeals Board shall be binding on both parties. There shall be no appeal from them. The Appeals Board may:

   (a) annul, or confirm, the decisions complained of;

   (b) order [SatCen] incidentally to compensate any material damage sustained by the staff member starting from the day the annulled decision began to have effect;

   (c) rule further that [SatCen] shall reimburse, within limits to be fixed by the Appeals Board, justified expenses incurred by the claimant ...’

   14 Annex X(1) to the SatCen Staff Regulations provides:

   ‘The Appeals Board shall have authority to settle disputes arising out of violations of these Staff Regulations or of the contracts provided for in Article 7 of the Staff Regulations. To that end it shall have jurisdiction with regard to appeals brought by serving or former staff members, or by their heirs and/or their representatives, against a decision of the Director.’

   15 Annex X(4)(b) to the SatCen Staff Regulations further provides that an appellant before SatCen’s Appeals Board (‘the Appeals Board’) ‘shall have a period of 20 days from notification of the decision complained of … in which to submit a written request that such decision be withdrawn or modified by the Appeals Board[; t]hat request shall be addressed to [SatCen’s] Head of Administration and Personnel, who shall acknowledge receipt of it and initiate the procedure for convening the Appeals Board’.

   16 As regards, lastly, the composition of the Appeals Board of SatCen, it is apparent from Annex X(2)(a)(b) and (e) to the SatCen Staff Regulations that the Board is to be composed of a Chairman and two members, appointed by the Board of SatCen, for a period of two years, from outside the staff of the SatCen, and that the emoluments of the Chairman and members are to be fixed by the Board of SatCen.

   B. The facts giving rise to the dispute and the contested decisions

   17 The applicant, KF, was recruited by SatCen as a member of contract staff from 1 August 2009 for a period of three years to occupy the position of Head of the Administration Division. At the end of her probationary period, on 31 January 2010, the applicant’s position was confirmed by the Director of SatCen, who noted in that regard that the applicant ‘work[ed] with tact and diplomacy, yet using firmness in communicating her decisions’.

   18 As part of the annual appraisal for 2010, the applicant was the subject of an appraisal report, dated 28 March 2011, by the Deputy Director of SatCen, in which her overall performance was deemed insufficient and she was awarded the lowest rating. The Deputy Director took the view, inter alia, that ‘considering the large spectrum of the administrative field, it [was] absolutely essential for [KF] ... to have confidence in her staff to lead the works of which they have the full competence’ and that it was ‘suitable to take particularly into account the human relationships mainly in a very sensitive multinational context and to avoid useless tensions between people’. The applicant challenged those conclusions and the manner in which the appraisal was conducted.

   19 On 27 March 2012, as part of the annual appraisal for 2011, the Deputy Director of SatCen noted the applicant’s positive development as compared to the previous year, and...