CJ v ECDC (Judgment) [2016] EUECJ T-370/15 (05 October 2016)

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

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,

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

1 By his appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice of the European Union, CJ, a former member of the contract staff at 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 ECDC’s decision of 24 February 2012 terminating CJ’s contract as a member of the contract staff (‘the contested decision’).

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.

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 ...’

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.

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.

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:

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

– 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.

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 [and Datema Hellman Worldwide 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 [and Datema Hellman Worldwide 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.

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.

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.

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.

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 ...

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.

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 Moreover, under 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...’

39 By pleading lodged at the General Court Registry on 9 July 2015, which was put in order on 31 August 2015, CJ brought the present appeal. After the ECDC had lodged a statement in defence, dated 30 November 2015, CJ was authorised to submit a reply, which he did on 17 December 2015. The ECDC submitted a rejoinder on 11 March 2016.

40 Acting on a report from the Judge-Rapporteur, the General Court (Appeal Chamber) noted that no application for a hearing to be arranged had been submitted by the parties within three weeks after service on the parties of notification of the close of the written part of the procedure and decided to give a ruling without an oral part of the procedure, pursuant to Article 207 of its Rules of Procedure.

– annul the judgment under appeal in so far as it dismissed in part the action in Case F‑159/12 and declared that he was to pay his own costs, dismissed the action in Case F‑161/12 in its entirety and ordered him to pay the costs and ordered him to pay the Tribunal the sum of EUR 2 000 in order to refund part of the avoidable expenditure which the Tribunal was forced in incur;

– as a result, annul the contested decision and order the ECDC to pay financial compensation assessed at EUR 80 000 in respect of the non-material harm he has suffered;

– order the ECDC to pay all costs of the proceedings at first instance and on appeal.

44 The first ground alleges a breach of the principle of audi alteram partem during the proceedings before the Civil Service Tribunal.

45 The second ground alleges a misinterpretation of the following legal norms: Article 47(b)(ii) of the CEOS, Article 86 of the Staff Regulations, Article 48 of the Charter of Fundamental Rights of the European Union and the duty of care.

46 The third ground alleges misinterpretation of certain pleas and claims in Case F‑159/12:

– the first plea in law, alleging that the investigation into the accusations of insubordination was closed before the applicant was heard;

– the fifth and eighth pleas in law, concerning the legal basis of the inquiry into the accusations of insubordination;

– the issue of whether the form of order sought contained a request for reinstatement in the service and an application for compensation in respect of the material harm allegedly incurred.

47 The fourth ground alleges erroneous legal classification so far as concerns the following issues:

– the disclosure of the file of the inquiry into the accusations of psychological harassment;

– the prejudice to CJ’s reputation as a result of false accusations of criminal conduct;

48 The fifth ground alleges distortion of the evidence in relation to the following issues:

– the calling into question of the competence of the appellant’s line manager;

– difficulty in accepting management decisions, for example, by refusing to provide a summary of the cases he was working on or a list of ongoing tasks;

49 It must be recalled in this connection at the outset that, under Article 11 of Annex I to the Statute of the Court of Justice, an appeal before the General Court is limited to points of law. Thus, the assessment of the facts by the court at first instance does not constitute, save where the clear sense of those facts has been distorted, a point of law which is subject, as such, to review by the General Court on appeal.

50 In the first ground, CJ submits that the Tribunal, in ruling that he had not, within the prescribed period, lodged a statement in reply which complied with the instructions of 11 June 2013 and in ordering him to pay EUR 2 000 in order to reimburse part of the avoidable costs which the Tribunal had been forced to incur, infringed the principle of audi alteram partem and, in the alternative, distorted the evidence which had been submitted before it. In that regard, CJ claims that the reply of 19 September 2013 produced before the Tribunal and certain annexes to that reply were relevant with regard to the annexes appended to the ECDC’s statement in defence in respect of CJ had been authorised to submit observations in reply, so that they should have been regarded as admissible. Such evidence, he submits, would also have been decisive for the purposes of the proceedings.

52 In the present case, it is not disputed that, following CJ’s request seeking that a second exchange of pleadings be authorised, the Registry of the Tribunal informed the parties, by letter of 11 June 2013, that such an exchange of pleadings was necessary but that it should be restricted to observations, if any, on certain annexes to the ECDC’s statement in defence which the appellant considered might have a significant impact on the result of the case. In addition, the Tribunal informed CJ that his statement in reply was not to exceed 10 pages (see paragraphs 57 and 58 of the judgment under appeal, reproduced in paragraphs 7 and 8 above).

53 It may be observed in this connection that the Tribunal had previously accepted, in Case F‑159/12, CJ’s application for authorisation to lodge an application containing 52 pages accompanied by 175 annexes, together comprising 1 237 pages (paragraph 55 of the judgment under appeal).

54 Likewise, it is not disputed that, in response to the instructions of 11 June 2013, CJ initially, on 22 July 2013, lodged a statement in reply of 75 pages accompanied by annexes totalling 317 pages, in which he did not restrict his observations to the annexes mentioned by the Tribunal but submitted observations in reply regarding the entirety of the statement in defence. That first statement in reply was not accepted by the Tribunal, which decided, by a decision communicated to the parties on 12 September 2013, to set a new time-limit for lodging a reply which complied with the instructions of 11 June 2013 (see paragraphs 59 and 60 of the judgment under appeal, reproduced in paragraphs 9 and 10 above).

55 As a result of that request, on 19 September 2013 CJ lodged a new statement in reply of 18 pages accompanied by 22 annexes, comprising 144 pages, which included the reply of 22 July 2013 which had not been accepted by the Tribunal. Since that new reply still 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 statement in reply which complied with those instructions, which it notified to the appellant by letter from the Registry of 16 October 2013 (see paragraph 61 of the judgment under appeal, reproduced in paragraph 11 above).

56 In the same letter, the Tribunal also drew CJ’s attention to Articles 32 and 94 of the version of its Rules of Procedure then in force and to the inferences which the General Court had drawn in its judgment of 13 December 2012 in Strack v Commission (T‑199/11 P, EU:T:2012:691) from the infringement of the equivalent provisions in its Rules of Procedure, when it held in a similar situation that it had incurred avoidable costs and ordered the party which had caused those costs to be incurred to refund part of them (see paragraph 61 of the judgment under appeal, reproduced in paragraph 11 above).

57 In response to the second request that the instructions of 11 June 2013 be followed, CJ asked the Tribunal, by letter of 23 October 2013, to accept the statement in reply of 22 July 2013 or that of 19 September 2013 (see paragraph 62 of the judgment under appeal, reproduced in paragraph 12 above).

58 Given the absence therefore of any statement in reply complying with the instructions of 11 June 2013, the Tribunal informed the parties, by letter of 12 November 2013, 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 (see paragraph 63 of the judgment under appeal, reproduced in paragraph 13 above).

59 Accordingly, since, in spite of repeated requests to that effect from the Tribunal and having been formally notified several times to do so, CJ did not lodge a statement in reply complying with the instructions of 11 June 2013, he may not allege that the Tribunal infringed the principle of audi alteram partem.

60 Nor may he, for the same reasons, allege that the Tribunal infringed the principle of audi alteram partem in ordering him, under the relevant provision of its Rules of Procedure and after hearing him on that matter, to pay it the sum of EUR 2 000 in order to refund it in part for the avoidable costs which it was forced to incur due to his refusal to comply with the instructions of 11 June 2013.

61 It may be pointed out in this connection, as it was by the Tribunal in paragraphs 252 to 256 of the judgment under appeal (reproduced in paragraph 38 above), that CJ’s lodging of two statements in reply, neither of which complied with the instructions of 11 June 2013, and his refusal twice to put that reply in order following requests to that effect by the Tribunal, caused administrative handling and analysis costs which could have been avoided.

62 It follows from the above considerations that it has not been established that the Tribunal overstepped the limits of the powers conferred upon it by the version of its Rules of Procedure then in force (see paragraph 11 above), or that the Tribunal committed a breach of procedure in implementing those Rules with regard to CJ which, were it to be established, would be deemed capable of resulting in a distortion of the evidence submitted to the Tribunal. Consequently, the first ground of appeal must be rejected as unfounded.

63 By the second ground, CJ submits that the Tribunal misinterpreted several legal norms. He submits three complaints in that connection.

Infringement of Article 47(b)(ii) of the CEOS and of Article 86 of the Staff Regulations

64 In the first place, CJ submits that the Tribunal misinterpreted Article 47(b)(ii) of the CEOS and that it should have applied Article 86 of the Staff Regulations when it rejected the tenth plea and the eighth plea of the action in Case F‑159/12. He submits that the Tribunal could not in the case under consideration hold that, where a member of staff infringed his obligations under the CEOS, the AECE was not obliged to apply Article 86 of the Staff Regulations and Annex IX thereto but could apply Article 47(b)(ii) of the CEOS. On any view, he claims, disciplinary proceedings should have been initiated. Allowing the ECDC to exercise its discretion in the assessment of the member of staff’s conduct and imposition on him of a penalty negates the effectiveness of the provisions protecting that member of staff when he reports an illegality. A fortiori, the AECE may not dismiss a member of staff without notice (a fact which the Tribunal failed to take into account) without initiating disciplinary proceedings. The enquiry into the allegations of insubordination opened under Article 2 of Annex IX to the Staff Regulations should have been followed by one of the three courses of action described in Article 3 of Annex IX to the Staff Regulations, relating to disciplinary measures, and not dismissal under Article 47 of the CEOS.

65 The ECDC disputes those arguments. Specifically, the ECDC observes that CJ’s contract was terminated and he was granted a notice period and compensation in accordance with Article 47 of the CEOS. There is no obligation on the AECE, in the event of wrongful conduct by a member of staff, to initiate disciplinary proceedings rather than using the option of unilaterally terminating the contract under the CEOS. Lastly, as regards the purported irregularities reported by CJ, the ECDC points out that OLAF decided not to open an investigation in that regard.

66 It must be recalled that the AECE, in the present case, decided to terminate CJ’s contract under Article 47(b)(ii) of the CEOS and not to apply Article 49 of the CEOS, which provides that after the disciplinary procedure provided for in Annex IX to the Staff Regulations has been followed, employment may be terminated without notice on disciplinary grounds in serious cases of failure of a staff member to comply with their obligations.

67 CJ essentially repeats in this complaint the arguments submitted before the Tribunal in the tenth plea in Case F‑159/12, relating to error of law in the choice of legal basis for the contested decision, and the eighth plea in that case, relating to infringement of Article 2(3) of Annex IX to the Staff Regulations.

68 The Tribunal correctly pointed out in paragraph 81 of the judgment under appeal (reproduced in paragraph 21 above) that, even where there was wrongful conduct capable of justifying the dismissal of a member of the temporary or contract staff on disciplinary grounds, there was 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 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, should be initiated, as provided for in Article 49(1) of the CEOS (judgment of 7 July 2011 in Longinidis v Cedefop, T‑283/08 P, EU:T:2011:338, paragraph 100).

69 Moreover, in contrast to what CJ submits in alleging that the procedure followed in the present case allowed the ECDC to negate the effectiveness of the provisions of the Staff Regulations protecting a member of staff when he reports any illegality, it must be recalled that the Tribunal rejected arguments of the same type in the judgment under appeal, which were based on the claim that the contested decision was adopted as a reprisal for CJ having reported potential irregularities committed by the ECDC.

70 As stated in paragraphs 90 and 91 of the judgment under appeal (reproduced in paragraph 22 above), first, the contested decision is clearly based on breaches by the appellant of his obligations to the ECDC and on the irreparable breakdown in the relationship of trust which ensued and, secondly, CJ’s statements are mere conjecture, in particular because in the present case OLAF decided not to take any action on his allegations on account of the weakness of the evidence he raised.

71 It follows that the Tribunal, in rejecting the tenth plea in Case F‑159/12, relating to error of law in the choice of legal basis for the contested decision, and the eighth plea thereof, relating to infringement of Article 2(3) of Annex IX to the Staff Regulations, by observing that the AECE did not act unlawfully in deciding to terminate CJ’s contract before its expiry, with notice, on the basis of Article 47(b)(ii) of the CEOS and without initiating disciplinary proceedings, neither misinterpreted the provisions relied upon by CJ in his first complaint nor applied those provisions as a whole incorrectly.

73 Secondly, CJ submits that the Tribunal misinterpreted Article 48(1) of the Charter of Fundamental Rights, according to which ‘[e]veryone who has been charged shall be presumed innocent until proved guilty according to law’ or, in the alternative, that it erred in its legal characterisation of the facts when it rejected the third plea in Case F‑159/12 and the first head of claim seeking compensation. He submits that the ECDC, in order to justify the contested decision, claimed in the decision rejecting the complaint against the contested decision that CJ had threatened and carried out a minor physical attack his line manager, even though CJ’s guilt in this connection had not been established before a criminal court.

75 Here again, CJ essentially repeats in this complaint the arguments put forward before the Tribunal in the third plea, alleging breach of the principle of the presumption of innocence (paragraph 152 of the judgment under appeal).

76 It must be stated in this connection that, first, the breach of the principle of the presumption of innocence alleged by CJ is based on a false premise, namely that the unlawful accusation that he had threatened and carried out a minor physical attack on his line manager had been relied on against him to justify the contested decision. That is clearly not the case, as can be seen from the actual wording of the contested decision (see paragraph 47 of the judgment under appeal, reproduced in paragraph 2 above). Secondly, the facts referred to by CJ are not mentioned in the ‘[b]ackground to the dispute’ given by the Tribunal in the judgment under appeal.

77 Consequently, the plea alleging breach of the principle of the presumption of innocence submitted before the Tribunal was ineffective. Therefore, the Tribunal was fully entitled to reject that plea (see paragraphs 155 and 156 of the judgment under appeal, reproduced in paragraph 26 above), so that the second ground of appeal must be rejected.

78 Thirdly, CJ submits that the Tribunal rejected the fourth plea in Case F‑159/12 on the ground, inter alia, that he had been granted all the procedural rights of defence in the inquiry into the accusations of insubordination. In doing so, he submits, the Tribunal misinterpreted the concept of the duty of care and, in the alternative, the principle of the rights of the defence and, in the further alternative, it erred in its legal characterisation of the facts in rejecting the argument that the duty of care included the duty to inform the appellant of his rights and grant him the right to be assisted by the person of his choice, the right to propose means of evidence and the right to be present at the hearing of witnesses and to ask questions.

79 The ECDC disputes those arguments. In this connection, the ECDC recalls, so far as the inquiry into the accusations of insubordination is concerned, 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. In its view it is common ground that in the present case that occurred and that CJ thus benefited from all the procedural rights necessary for his defence.

80 Here again, CJ essentially repeats in this complaint the arguments put forward before the Tribunal in the fourth plea in the action in Case F‑159/12, alleging breach of the principle of the duty of due diligence (paragraph 157 of the judgment under appeal).

81 The Tribunal correctly pointed out that, so far as concerns the inquiry into the accusations of insubordination, pursuant to Article 2(1) of Annex IX to the Staff Regulations the member of staff in question had the right to be heard before the adoption of the final conclusions of the administrative investigation, to be informed when the investigation ended and to receive the investigation report, and that this had indeed taken place in the case under consideration. It therefore rejected the fourth plea as unfounded (paragraphs 160 to 162 of the judgment under appeal, reproduced in paragraph 27 above).

82 It follows that, in rejecting the fourth plea relating to the infringement of the duty of due diligence, the Tribunal did not misinterpret the provisions referred to by CJ in his third complaint.

83 The third complaint must therefore be rejected as unfounded, as must, accordingly, the second ground of appeal.

84 In his third ground of appeal, CJ submits that the Tribunal misinterpreted several pleas submitted before it. He submits three complaints in that connection.

The misinterpretation of the first plea submitted in Case F‑159/12, relating to the closure of the inquiry before CJ had been heard

85 In the first place, CJ observes that in a complaint in his first plea in Case F‑159/12 he stated that the member of staff in charge of the inquiry into the allegations of insubordination had drawn inferences relating to him before giving him sufficient opportunity to be heard under Article 1(1) of Annex IX to the Staff Regulations, to which Article 2(1) of that annex refers. CJ submits in that regard that, by assessing in the judgment under appeal the breach of the right to be heard in the light of Article 41(2)(a) of the Charter of Fundamental Rights, the Tribunal did not respond specifically to the complaint made on the basis of Article 1(1) of Annex IX to the Staff Regulations, a more precise provision. The judgment under appeal should have examined whether there had been an infringement under the latter provision.

87 As is apparent from paragraph 93 of the judgment under appeal, in the first plea in Case F‑159/12, alleging breach of the right to be heard, CJ argued infringement of Article 41(2)(a) of the Charter of Fundamental Rights, under which the right to good administration includes, in particular ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’ and infringement of Article 1(1) of Annex IX to the Staff Regulations, under which ‘[i]n any event, conclusions referring by name to an official may not be drawn once the investigation has been completed without that official concerned having been given the opportunity to comment on facts concerning him’.

88 In so far as Article 1(1) of Annex IX to the Staff Regulations merely gives specific expression to the principle laid down in Article 41(2)(a) of the Charter of Fundamental Rights, the findings made by the Tribunal in response to the arguments put forward by CJ as to the infringement of the right to be heard, which furthermore have not been criticised, do not constitute a misinterpretation of the plea he submitted.

89 In any event, as the Tribunal correctly established in the judgment under appeal, that plea has no legal basis in so far as CJ was in fact invited to submit his observations on the facts concerning him during the inquiry into the accusations of insubordination (see paragraphs 108 to 121 of the judgment under appeal, reproduced in paragraph 23 above).

The misinterpretation of the fifth and the eighth pleas submitted in Case F‑159/12 as to the legal bases of the inquiry into the accusations of insubordination

91 In the second place, CJ submits that, as regards the inquiry into the accusations of insubordination, in paragraph 165 of the judgment under appeal the Tribunal rejected the fifth plea in Case F‑159/12, alleging a failure to grant access to the inquiry files, on the ground that CJ could not rely on Article 2(2) of Annex IX to the Staff Regulations to request access to those documents since the contested decision had not been adopted under the provisions relating to the disciplinary procedure but under Article 47(b)(ii) of the CEOS. Likewise, in paragraph 180 of the judgment under appeal, the Tribunal rejected as inoperative the eighth plea, alleging infringement of Article 2(3) of Annex IX to the Staff Regulations, essentially on the grounds that the failure by the ECDC to adopt general implementing provisions for that article was not capable of affecting the contested decision, which had not been adopted on the basis of the disciplinary procedure but on that of Article 47(b)(ii) of the CEOS. The fifth head of claim seeking compensation was closely linked to the eighth plea, so that the Tribunal also rejected that head of claim in paragraphs 240 and 242 of the judgment under appeal.

92 In that context, CJ claims that the fifth and eighth pleas were not directed against the contested decision as such, but against the report of the inquiry in question into the accusations of insubordination, as a preparatory act for the contested decision. He submits that, contrary to the Tribunal’s finding, that inquiry was conducted under Annex IX to the Staff Regulations. Inasmuch as the findings in the report of the inquiry into the accusations of insubordination are vitiated by infringement of Annex IX to the Staff Regulations, they cannot validly be relied upon in the contested decision. The contested decision should therefore be annulled because it is based on an unlawful preparatory act. The Tribunal, in this regard, misinterpreted the pleas put forward. Such an error constitutes an infringement of the obligation to state reasons, in particular because the Tribunal was required to examine all the infringements of rights which had been raised before it.

93 The ECDC disputes those arguments. In particular, the ECDC observes that it is apparent from the actual wording of the two pleas in question that they were only vaguely linked to the inquiry report as such and that they concerned matters which were more general. Had CJ wished to challenge the report of the inquiry into the accusations of insubordination as such, he could have used the procedures laid down in Article 90(1) and (2) of the Staff Regulations to do so. It is not, on the other hand, open to him to claim at the appeal stage that he wished to challenge that report despite not having done so within the time limits set.

94 It is apparent from paragraph 163 of the judgment under appeal that, in the fifth plea in Case F‑159/12, alleging a failure to grant access to the inquiry files, CJ objected, inter alia, that he did not receive the documents on which the final report on insubordination was based, in breach, in particular, of Article 2(2) of Annex IX to the Staff Regulations.

95 Under that provision, ‘[t]he Appointing Authority shall inform the person concerned when the investigation ends, and shall communicate to him the conclusions of the investigation report and, on request and subject to the protection of the legitimate interests of third parties, all documents directly related to the allegations made against him’.

96 In the case under consideration, the Tribunal, in rejecting that complaint, first held, in paragraph 165 of the judgment under appeal (reproduced in paragraph 28 above), that ‘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’.

97 It is apparent from Article 3 of Annex IX to the Staff Regulations that ‘[o]n the basis of the investigation report, after having notified the official concerned of all evidence in the files and after hearing the official concerned, the Appointing Authority may’, in particular under point (c) of that article, namely ‘in the case of failure to comply with obligations within the meaning of Article 86 of the Staff Regulations..., decide to initiate the disciplinary proceedings provided for in Section 4 of this Annex [on disciplinary proceedings without consultation of the Disciplinary Board in cases of a written warning or reprimand] or ... decide to initiate disciplinary proceedings before the Disciplinary Board’.

98 As already stated (see, inter alia, paragraphs 81 and 82 of the judgment under appeal, reproduced in paragraph 21 above), the Tribunal correctly held that the contested decision had been adopted on the basis of Article 47(b)(ii) of the CEOS and not, as a result of the inquiry report, under a provision governing the disciplinary procedure set out in Annex IX to the Staff Regulations.

99 Nonetheless, contrary to what is stated in paragraph 165 of the judgment under appeal, it was not open to the Tribunal to conclude that the complaint alleging infringement of Article 2(2) of Annex IX to the Staff Regulations was of no consequence for the assessment of the contested decision since that decision had been taken on the basis of Article 47(b)(ii) of the CEOS.

100 The meaning of the complaint put forward before the Tribunal by CJ was in fact that the contested decision would be vitiated were it to be found that CJ had not been given an opportunity to be heard concerning the inquiry into the accusations of insubordination for the purposes of, in particular, Article 2(2) of Annex IX to the Staff Regulations.

101 It must be recalled in this connection that, in paragraph 160 of the judgment under appeal, in the consideration of the fourth plea in the action in Case F‑159/12 relating to breach of the duty of due diligence, the Tribunal held concerning that inquiry that, pursuant to Article 2(1) of Annex IX to the Staff Regulations, ‘the member of staff in question [had] the right to be heard before the adoption of the final conclusions of the administrative investigation, to be informed when the investigation end[ed] and to receive the investigation report’.

102 In the case under consideration, it was therefore important for the Tribunal to ascertain whether, prior to adopting the contested decision, the AECE had communicated the conclusions of the report of the inquiry into the accusations of insubordination, which is not disputed in the present instance, and whether, on request by the person concerned and subject to the protection of the legitimate interests of third parties, it had communicated all the documents directly related to the allegations made with regard to him.

103 It must be recalled, on this point, as indeed it was by the Tribunal in paragraph 166 of the judgment under appeal, that CJ, in his application in Case F‑159/12, stated that he did not request ‘access to ... all documents not already communicated to [him] relating to the inquiry into the accusations of insubordination’ until an email of 16 April 2012, that is to say, after the communication to him on 17 February 2012 of the final report on insubordination (paragraph 43 of the judgment under appeal), following which he did not submit observations within the time limit set, and after he had been notified of the contested decision on 24 February 2012 (paragraph 47 of the judgment under appeal).

104 Consequently, since he failed to request within the prescribed period access to the file of the inquiry into the accusations of insubordination, as observed by the Tribunal in the judgment under appeal, CJ cannot claim that the Tribunal misinterpreted the various arguments referred to, in support of the present complaint, as a basis for both the application for annulment of the contested decision and the associated claim for damages.

106 In the third place, CJ observes that in his claims in the action in Case F‑159/12, he sought the annulment of the contested decision ‘so that, in order to comply with such judgment, [the] ECDC shall be required under Article 266 TFEU to re-instate him in the service and pay him all emoluments he would have received from the date of effect of the contested decision’. In the judgment under appeal, although the Tribunal upheld the appellant’s claims for annulment, it rejected as inadmissible what it considered to be an injunction and a claim for compensation in respect of the material harm suffered. For that reason, the Tribunal also decided that the parties were to bear their own costs in Case F‑159/12. In doing so, the Tribunal misinterpreted those claims, which did not contain a request for an injunction or for compensation in respect of material harm, but sought only the annulment of the contested decision. In those claims, CJ merely stated what the automatic consequences would be of such an annulment pursuant to Article 266 TFEU. He claims that the Tribunal ruled ultra petita and were this not the case it would have ordered the ECDC to pay all the costs.

107 The ECDC disputes those arguments. Contrary to what is claimed by CJ, the wording of his claims contains a request for an injunction and for compensation in respect of the material harm allegedly suffered. Moreover, reinstatement is not an automatic consequence of the implementation of a judgment annulling a dismissal decision. CJ has also failed to explain the link of causality between the request for an injunction made by him and the costs he was ordered to pay. In any event, inasmuch as the appellant was unsuccessful in his action in Case F‑159/12 on all legal grounds except for one, it is unlikely that the ECDC would have been ordered to pay the appellant’s costs.

108 As is apparent from paragraph 67 of the judgment under appeal, in Case F‑159/12 the appellant claimed that the Tribunal should ‘annul the contested decision so that, in order to comply with the judgment, the ECDC is required, under Article 266 TFEU, to reinstate him in a post and to pay him all the emoluments he would have received from the date of entry into force of the contested decision together with default interest at the rate applied by the European Central Bank to its main refinancing operations during the period concerned, increased by two percentage points and minus the pecuniary compensation which he has received and the unemployment allowance he will from now until his reinstatement have received’ (see also paragraph 219 of the judgment under appeal).

109 In that regard, as is apparent from paragraph 220 of the judgment under appeal, the Tribunal did not misinterpret the contents of those claims when it held that, pursuant to settled case-law, it was not for it, in an action brought under Article 91 of the Staff Regulations, to issue injunctions to the EU institutions (judgment of 9 June 2005 in Castets v Commission, T‑80/04, EU:T:2005:214, paragraph 17) and that, on any view, the appellant’s claims had to be dismissed as inadmissible in so far as they sought his reinstatement within the ECDC.

110 Likewise, as is apparent from paragraph 221 of the judgment under appeal, the Tribunal subsequently also correctly observed that, so far as the claim for compensation in respect of material harm was concerned, under Article 266 TFEU, it was incumbent on the institution whose act had been declared void to ‘take the necessary measures to comply with the judgment’ addressed to it. It follows that, at that stage, the claim for compensation was premature and therefore inadmissible.

111 In those circumstances, as is apparent from paragraph 251 of the judgment under appeal, the Tribunal was entitled to observe that, in Case F‑159/12, although it had upheld the appellant’s claim for annulment, it had nonetheless rejected his claims for compensation and that therefore, since the appellant had been in part unsuccessful in his action in that case, the Tribunal could decide that, pursuant to Article 103(2) of its Rules of Procedure, the parties were to bear their own costs in Case F‑159/12.

112 The third complaint must therefore be rejected as unfounded, as must, accordingly, the third ground of appeal.

113 By the fourth ground, CJ submits that the Tribunal made several errors in legal classification. He submits four complaints in that connection.

114 In the first place, CJ observes that, by the fifth plea in the action in Case F‑159/12, alleging failure to grant access to the inquiry files, he submitted that the ECDC had breached Article 2(2) of Annex IX to the Staff Regulations, Article 13 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, and Article 26 of the Staff Regulations by refusing to disclose to him the report of the inquiry into the allegations of harassment and the evidence on which it was based.

115 First, he submits that the Tribunal, when it held that Annex IX to the Staff Regulations was not applicable to the procedure under which the contested decision had been adopted, in fact misinterpreted the CEOS.

116 Secondly, he submits that the Tribunal also made an error of legal classification or, in the alternative, an error of interpretation of Article 13 of Regulation No 45/2001 in holding, essentially, that the appellant’s requests for access to that report and the associated evidence made on 5 March and 16 April 2012 made no reference to his personal data. In those requests, the appellant requested the abovementioned documents and such requests should have been regarded as requests for access to his personal file under Article 26 of the Staff Regulations. Furthermore, since the report of the inquiry into the allegations of harassment and the evidence on which it was based formed the basis of the reasoning for the contested decision, they should have been included in his personal file.

117 Thirdly, as regards the Tribunal’s comment in paragraph 167 of the judgment under appeal, according to which the ECDC’s refusal to grant those requests seeking access to documents, made after the contested decision, could not affect the validity of that decision, CJ submits that, on any view, the unlawful nature of that refusal would still allow him to obtain financial compensation under the sixth head of claim seeking compensation in the action in Case F‑161/12. The rejection of that head of claim seeking compensation on the ground that it was closely linked to the fifth plea in the action for annulment was therefore erroneous, as an error of legal classification of the facts in particular and, in the alternative, a distortion of the clear sense of the evidence given the absence of a sufficiently close link between that head of claim and that plea.

118 In the reply, CJ refers to the judgment of 23 September 2015 in Cerafogli v ECB (T‑114/13 P, EU:T:2015:678) to argue that he was never granted the opportunity to state his view on the content of the report of the inquiry into the allegations of harassment, no draft of that report having been disclosed to him and not having received the final report until after he had brought the action in Case F‑159/12. That constitutes, in his view, an infringement by the ECDC of the audi alteram partem principle with regard to a preparatory act for the contested decision. CJ also mentions the judgment of 29 September 2015 in De Loecker v EEAS (F‑28/14, EU:F:2015:101, paragraph 83), which refers to the rule that every document liable to weigh decisively on a decision which has an adverse effect, on that occasion premature termination of the contract of a member of the temporary staff, must, in principle, have been communicated to the person concerned, then placed in his personal file.

119 The ECDC disputes those arguments. Specifically, the ECDC contends that it is not erroneous to state that Annex IX to the Staff Regulations did not apply to the contested decision or that Article 13 of Regulation No 45/2001 and Article 26 of the Staff Regulations were not infringed.

120 It must be observed, as a preliminary point, that in the consideration of the fifth plea in the action in Case F‑159/12, the Tribunal stated, inter alia, in paragraph 166 of the judgment under appeal, that CJ, in his application in Case F‑159/12, stated that he had requested ‘access to the final report of the inquiry into the allegations of harassment’ only by e-mail of 5 March 2012 and that he had requested access ‘to “all documents not already communicated to [him]” relating to the ... inquiry into the allegations of harassment’ only by e-mail of 16 April 2012, that is, after the disclosure to the appellant on 17 February 2012 of a summary of the final report of the inquiry into the allegations of harassment including the conclusions and recommendations of the investigator (paragraph 43 of the judgment under appeal), following which the appellant failed to submit observations within the time limit prescribed, and after the appellant had been notified of the contested decision on 24 February 2012 (paragraph 47 of the contested decision).

121 Therefore, in the absence of a request within the prescribed period seeking access to any documents which might directly relate to any allegations made regarding the appellant in connection with the inquiry into the allegations of harassment, as observed by the Tribunal in the judgment under appeal, the Tribunal was fully entitled in any event to hold, in paragraph 167 of the judgment under appeal, that since both those requests were made after the contested decision, the action taken by the ECDC as a result of them could not affect the validity of that decision.

122 Furthermore, as observed by the Tribunal in paragraph 168 of the judgment under appeal, it is also apparent from the requests made by the appellant after he had been notified of the contested decision that those requests referred neither 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 — nor to a request for access to his personal file in accordance with Article 26 of the Staff Regulations.

123 Accordingly, CJ cannot claim that the Tribunal erred in the classification of his arguments derived from the infringement of Article 13 of Regulation No 45/2001 or Article 26 of the Staff Regulations.

124 Lastly, so far as concerns the sixth head of claim seeking compensation in the action in Case F‑161/12, it must be noted that CJ argued in that head of claim that the alleged non-material harm which he claimed to have suffered on account of the refusal to disclose to him the information in the file of the inquiry into the allegations of harassment constituted an infringement of Article 13 of Regulation No 45/2001, and an infringement of Article 41(2)(b) of the Charter of Fundamental Rights and of Article 2(2) of Annex IX to the Staff Regulations, which gives specific expression to that article, and which he assessed as valued at a minimum sum of EUR 7 000.

125 Therefore, the Tribunal was fully entitled to consider, in paragraph 241 of the judgment under appeal, that since that sixth head of claim was closely linked to the fifth plea in the claim for annulment, which had been rejected as unfounded, that head of claim should thus be rejected given that the Tribunal had not established the reality of any of the unlawful acts alleged by the appellant in this connection (see paragraphs 120 to 123 above).

127 In the second place, CJ submits that in paragraphs 101 and 107 of the judgment under appeal, the Tribunal rejected the fourth complaint in the first plea of the action in Case F‑159/12 essentially on the basis that the inquiry into the allegations of insubordination was not governed by Annex IX to the Staff Regulations and thus that that inquiry need not comply with the second sentence of Article 1(1) of that Annex IX, under which the member of staff concerned must have been given the opportunity to comment on facts concerning him before conclusions referring to him by name have been drawn. However, CJ submits that the abovementioned inquiry was, by ECDC’s own admission, conducted under Article 2 of Annex IX to the Staff Regulations. In holding otherwise, the Tribunal thus made an error of legal classification and, in the alternative, distorted the clear sense of the evidence.

129 It must be recalled in the present case that by the fourth complaint in the first plea of the action in Case F‑159/12, alleging breach of the right to be heard, CJ argued that the period he had been granted to submit his observations on the facts concerning him, in particular those mentioned in the final report on insubordination and in the summary of the final report of the inquiry into the allegations of harassment (which included the conclusions and recommendations of the investigator forwarded on 17 February 2012 after the meeting of the same day), was too short for it to be found that he had been properly heard within the meaning of Article 41(2)(a) of the Charter of Fundamental Rights (see paragraphs 100 and 43 of the judgment under appeal).

130 In this connection, in so far as Article 1(1) of Annex IX to the Staff Regulations merely gives specific expression to the principle laid down in Article 41(2)(a) of the Charter of Fundamental Rights, it follows that the findings made by the Tribunal in response to the arguments put forward by CJ as to the infringement of the right to be heard, which furthermore have not been criticised, do not constitute a misinterpretation of the plea he submitted (see paragraph 88 above).

131 Likewise, it must be pointed out that the Tribunal, in paragraph 107 of the judgment under appeal, stated that, as it had already found in paragraphs 81 and 82 of that judgment, the contested decision had been adopted on the basis of Article 47(b)(ii) of the CEOS, so any reference to the provisions governing disciplinary proceedings made by the appellant was irrelevant to the analysis of that plea, while also stating, in paragraph 110 of the judgment under appeal, that it was not disputed that the contested decision was an individual measure which affected the appellant adversely and so he therefore had the right to be heard before the adoption of that decision, even though Article 47(b)(ii) of the CEOS did not specifically provide for such a right.

132 In that context, the Tribunal held that the appellant had been given an opportunity to submit observations on the acts of which he was accused and that the time limits prescribed for that purpose were sufficient and thus compatible with the right to be heard (see paragraphs 107 to 121 of the judgment under appeal, reproduced in paragraph 23 above).

133 Moreover, CJ fails in his arguments to take into account the difference in Annex IX to the Staff Regulations, relating to disciplinary proceedings, between the general provisions set out in section 1 thereof, Article 2(1) of which states that the rules set out in Article 1 of Annex IX for OLAF investigations are to apply, with any necessary changes, to other administrative enquiries carried out by the Appointing Authority, and those set out on the assumption that, on the basis of the inquiry report and having disclosed to the official concerned all the items in the file and having heard that official, the Appointing Authority may decide, inter alia, to initiate disciplinary proceedings as defined in section 2 and section 4 of Annex IX to the Staff Regulations.

134 Consequently, CJ may not claim that it is apparent from the judgment under appeal that the Tribunal, in finding that the contested decision had been adopted on the basis of Article 47(b) of the CEOS, committed an error in legal classification or, in the alternative, distorted the clear sense of the evidence.

The prejudice to CJ’s reputation as a result of false accusations of criminal conduct

136 In the third place, CJ submits that by the ninth plea in the action in Case F‑159/12, he alleged that the ECDC had incorrectly, in the report of the inquiry into the allegations of harassment, held him responsible for the ‘severe conflict’ with his line manager. He also states that in the eleventh plea in that action he had maintained that the ECDC had falsely accused him of various acts, in particular pushing, shouting, threatening, acting partially and disloyally and being rude and harassing, and that in the twelfth plea in that action he had stated that all the findings of the report of the inquiry into the accusations of insubordination were unfounded. Those three pleas were collectively rejected. In particular, after examining and finding to be established some of the accusations which the appellant had disputed in his pleas, the Tribunal declared that there was no need to examine the remaining accusations in so far as, in its view, the accusations it had held to be well-founded sufficed to justify the contested decision. Furthermore, in the first head of claim seeking compensation in the action in Case F‑161/12, the appellant had claimed prejudice to his honour and reputation, in particular by reason of the abovementioned accusations. That head of claim for compensation was rejected by the Tribunal on the ground that it was closely linked to the ninth, eleventh and twelfth pleas for annulment which had already been rejected.

137 CJ claims that, even if the Tribunal were right to have rejected the pleas for annulment without examining the veracity of the accusations of criminal conduct, it could not validly do so with regard to the claims for compensation. The Tribunal should have examined the accusations in relation to the acts mentioned in the claims for compensation one by one, inasmuch as even one false accusation (and certainly the breach of the presumption of innocence) was sufficient to cause prejudice to the appellant’s honour and reputation, so that his claim for pecuniary compensation was legitimate. That claim was assessed ex aequo et bono as valued at a minimum of EUR 60 000, essentially with regard to the allegations of criminal conduct (threatening and pushing his line manager) and at a minimum of EUR 20 000 with regard to the remaining allegations (the latter sum of EUR 20 000 also including the non-material harm caused by the summary character of the appellant’s dismissal). There was no sufficiently close link between the first head of claim for compensation and the eleventh plea for annulment which could justify the Tribunal’s finding that the rejection of the latter had to result in the rejection of the former in its entirety. The Tribunal thus erred in its legal classification of the facts and, in the alternative, it distorted the clear sense of the evidence and, in the further alternative, it stated insufficient reasons. Consequently, the Tribunal incorrectly ordered CJ to pay the costs in the action in Case F‑161/12.

139 It must be stated that the present complaint is not directed at the contested decision, which does not refer to the accusations mentioned by CJ, but at the report of the inquiry into the allegations of harassment, which was not an object of the action in Case F‑159/12 or of the action in Case F‑161/12, in which the first head of claim seeking compensation was formulated as an application for compensation in respect of the harm allegedly suffered on account of the appellant’s ‘dismissal’.

140 Given the absence of any reference to those accusations in the contested decision, CJ therefore cannot allege that the decision concerned was such as to have caused him the non-material harm alleged in the present complaint.

141 In that context, the Tribunal was fully justified in rejecting, as it did in paragraphs 233 to 248 of the judgment under appeal, the claims made in the action in Case F‑161/12, concerning the alleged prejudice to the appellant’s reputation as a result of what he described as ‘false accusations of criminal conduct’ on the ground that those claims were closely linked to the pleas for annulment of the contested decision submitted in the action in Case F‑159/12.

143 In the fourth place, CJ observes that, by the first head of claim seeking compensation, he objected, in particular, that the two months’ ‘notice’ he had been given was not genuine in so far as he had been requested to actually leave the service on the date on which he was notified of the contested decision (see, to that effect, judgment of 23 October 2013 in Gomes Moreira v ECDC (F‑80/11, EU:F:2013:159, paragraphs 50 to 54), in which the ECDC was held to have acted unlawfully when it terminated a contract under Article 47(b)(ii) of the CEOS by ordering the person concerned to leave the service immediately). In the present case, the contested decision therefore had adverse effects on his professional honour and reputation. That first head of claim seeking compensation was nevertheless rejected by the Tribunal on the ground that it was closely linked to the ninth, eleventh and twelfth pleas in the action in Case F‑159/12 which had already been rejected. However, the appellant submits, those pleas did not contain any complaint relating to the summary character of his dismissal. Consequently, the link mentioned by the Tribunal does not exist and the Tribunal erred in its legal classification of the facts or, in the alternative, distorted the clear sense of the evidence. The Tribunal therefore incorrectly ordered CJ to pay the costs in the action in Case F‑161/12.

145 In this connection, the ECDC denies that CJ’s contract was terminated without a genuine notice period. It submits that CJ was granted a notice period of two months. The fact that he was allocated work to carry out at home for the remainder of his contract is irrelevant and does not equate to a failure to grant a notice period. Moreover, the reference to the judgment of 23 October 2013 in Gomes Moreira v ECDC (F‑80/11, EU:F:2013:159) is irrelevant since the measure taken against the person concerned was a measure of suspension which was subsequently annulled by the Tribunal, whereas no such measure was taken in the present case (see paragraphs 48 to 54). In any event, as the Tribunal stated in paragraph 53 of the judgment relied upon by CJ, where, in a case of misconduct such as to justify the dismissal of a member of staff, the AECE decides to terminate that person’s contract with notice instead of initiating disciplinary proceedings against him, the onus is on it, under its power to determine the administrative duties which the member of staff concerned must perform during that notice-period, to inform him, giving reasons, in the text of the decision terminating the contract, if he is to abstain from performing certain specific duties. The ECDC thus acted in accordance with that judgment in the present case and the Tribunal did not err in law in holding that the related claims seeking compensation were closely linked to the ninth, eleventh and twelfth pleas in the action in Case F‑159/12.

146 It should be observed that, as CJ states in this complaint, in the action in Case F‑161/12 he applied for compensation in respect of the non-material harm stemming from the psychological impact and the prejudice to his reputation caused by his dismissal (paragraph 222 of the judgment under appeal).

147 Specifically, in his first head of claim seeking compensation in Case F‑161/12, CJ requested the award of ‘at least’ EUR 80 000 as compensation for the harm suffered in connection with, inter alia, the ‘summary character of the termination of his contract’ (paragraph 223 of the judgment under appeal).

148 It is apparent in this respect from the contested decision, of which CJ was notified on 24 February 2012, that, although that decision indeed states that, following the two-month notice period provided for in Article 47(b)(ii) of the CEOS, his last day of work at the ECDC was to be 30 April 2012 (see paragraph 47 of the judgment under appeal), in practice there were adjustments made to that notice period which were not envisaged in the abovementioned provision.

149 First, the contested decision stated that the 24 February 2012 was to be [CJ’s] ‘last day working in the office’ and that he should ‘hand in [his] ECDC security card [that very day]’ (see paragraph 47 of the judgment under appeal).

150 Secondly, the contested decision also stated that, during the notice period ‘[CJ would] be assigned work to be performed from [his] home by [his] line manager and this [would] include the preparation of a handover file’ (see paragraph 47 of the judgment under appeal).

151 Thirdly, the contested decision also stipulated that ‘an automated response for [the appellant’s] email account [would] be prepared confirming that all future enquiries [would] be addressed to [his] line manager’. Likewise, the Director of the ECDC instructed the appellant ‘neither to seek, nor maintain, contact with any other staff members or third parties in relation to ECDC matters’ and that ‘[a]ny approach made by such parties to [him] relating to [his] role as an ECDC staff member should be referred to [his] line manager’.

152 CJ submits on this point that, as a result of the contested decision, he was deprived of access to ECDC premises for the duration of the notice-period, that he was also required to work from home and was given the person whose decisions he was accused of having significant difficulty in accepting as his main point of contact, with whom he could not have a normal working relationship, and that he was also deprived of the possibility of interacting with his work colleagues or with third parties in the context of his employment for the duration of the notice period, any person seeking to contact him at his professional email address receiving an automated response implying that he was no longer performing his duties. According to CJ, an autonomous claim for non-material harm may therefore be identified, linked to the ‘immediate effect of [his] dismissal’.

153 In the case under consideration, the Tribunal held, in paragraphs 237 and 242 of the judgment under appeal, that the first head of claim seeking compensation in Case F‑161/12 should be rejected because it was closely linked to the ninth, eleventh and twelfth pleas of the claim for annulment in Case F‑159/12, which had been rejected, and that none of the illegalities invoked in that regard had been found to be established. None of those pleas concerned the legality of the circumstances in which that notice period was adjusted in the contested decision.

154 It must therefore be stated that, by ruling thus, the Tribunal failed to adjudicate on the entirety of the first head of claim seeking compensation in Case F‑161/12. That constitutes an error of law which also affects the judgment under appeal with regard to the allocation of costs.

155 Having regard to what is reported of the contested decision in paragraphs 149 to 151 above, it is not inconceivable that CJ might, in that first head of claim seeking compensation, have been able to establish the existence of non-material harm which that act, were its adoption to be found to be flawed, might have caused him, such as to have given rise to a possibility of obtaining compensation.

156 Points 3 and 5 of the operative part of the judgment under appeal must therefore be set aside.

157 In the fifth ground, CJ submits that the Tribunal distorted the relevant evidence when it rejected the twelfth plea in the action in Case F‑159/12, alleging several manifest errors of assessment in relation to the issue of whether the appellant had behaved insubordinately. That reasoning is contested by CJ on several grounds.

158 First, CJ observes that, in paragraph 191 of the judgment under appeal, the Tribunal found that he had attempted, including in his application, to call into question the competence of his line manager on the basis of allegations unsupported by evidence. However, the Tribunal did not specify what the allegations in question were and so, he submits, the judgment under appeal states insufficient reasons in this regard.

159 Secondly, CJ observes that, to illustrate the difficulty he allegedly had in accepting management decisions, the Tribunal gave two examples of his behaviour.

160 In the first example, the Tribunal stated 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’ (paragraph 193 of the judgment under appeal). The evidence referred to in this paragraph consisted of two emails, one dated 8 November 2011 at 10h11 and the other dated 9 November 2011 at 10h29 (paragraphs 10 and 11 of the judgment under appeal). However, the Tribunal failed to take account of four other emails which showed that the appellant had, in any event, provided the information requested during his leave, one received by the appellant dated 29 November 2011 at 18h24 and three others sent by the appellant dated 9 November 2011 at 22h46, 22h47 and 22h47 (annexes A.74 and A.76 to the application in Case F‑159/12 in the case of the former two emails and annexes C.15 and C.16 to the reply proposal of 22 July 2013 in the case of the latter two emails, which contained the information requested). In his view, the Tribunal thus distorted the evidence or, in the alternative, committed an error of legal classification.

161 In the second example, the Tribunal stated that the appellant had been requested to provide his line manager with ‘a list of open files’ which the appellant had essentially failed to do even after an exchange of numerous emails (see paragraphs 194 to 197 of the judgment under appeal). In doing so, he submits, the Tribunal distorted the evidence or, in the alternative, committed an error of legal classification as to the facts. First, CJ claims that it is clear from the contents of the list he provided and the correspondence concerned that the list in question manifestly complied with at least the essence of the instructions. Consequently, his conduct in drafting that list can therefore manifestly not be considered insubordination, either in itself or in the light of other events. At worst it might be considered poor-quality work which would typically give rise to negative comments in his appraisal report but not to dismissal. Secondly, that list was provided without delay, namely by email of 14 December 2011 at 14h39 in response to the request made on 14 December 2011 at 12h07.

162 Moreover, CJ observes that in paragraphs 207 and 208 of the judgment under appeal, the Tribunal rejected the thirteenth plea in the action in Case F‑159/12, alleging breach of the principle of proportionality, on the ground essentially that the functioning of the service had been irreparably damaged by the appellant’s insubordination and could only be restored by his dismissal. However, such irreparable damage to the relationship of trust had manifestly not been proven. The ECDC had in no way established that it would have been impossible for the appellant to collaborate well with his colleagues and superiors ever again. At best, it had demonstrated it was impossible for him to collaborate with his line manager. In the alternative, CJ claims that it was the ECDC’s inaction that caused such an irreparable breakdown in the relationship of trust. In light of its duty of due diligence, the ECDC, as soon as it noticed the onset of problems in the functioning of the service, should have taken measures to prevent their escalation. Thus, he submits, the Tribunal distorted the clear sense of the evidence or, in the alternative, committed an error of legal classification or, in the further alternative, misapplied the principle of proportionality in finding otherwise.

163 The ECDC disputes those arguments. It refers in this connection to the reasoning set out by the Tribunal in the judgment under appeal, from which it is apparent, inter alia, that CJ did not submit sufficient evidence to render implausible the findings of the ECDC as to the irreparable breakdown in the relationship of trust between the appellant and his management.

164 It must be observed that, in that ground of appeal, CJ essentially repeats the arguments submitted before the Tribunal in the twelfth plea of the action in Case F‑159/12, alleging manifest errors in the assessment of his behaviour, and the thirteenth plea thereof, alleging breach of the principle of proportionality.

165 As a preliminary point, it must be recalled in this connection that the Tribunal, inter alia in the consideration of the twelfth plea in the action in Case F‑159/12, correctly pointed out in paragraph 188 of the judgment under appeal (reproduced in paragraph 31 above) that, first, the early termination of a contract of a member of the contract staff under Article 47(b)(ii) of the CEOS could be based on conduct of the staff member concerned leading to a breakdown in the relationship of trust between that person and the AECE and, secondly, the competent authority had wide discretion, review by the Courts of the European Union being limited to ensuring that there has been no manifest error or misuse of powers (see, by analogy, as regards members of the temporary staff, judgments of 8 September 2009 in ETF v Landgren, T‑404/06 P, EU:T:2009:313, paragraph 162, and of 4 December 2013 in ETF v Michel, T‑108/11 P, EU:T:2013:625, paragraph 77).

166 In that context, the Tribunal correctly held in paragraph 189 of the judgment under appeal (reproduced in paragraph 31 above) that, in order to establish that the administration had 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 was for the applicant to adduce, had to be sufficient to make the findings of the administration implausible. In other words, a 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.

167 In the present case, as the Tribunal observed at paragraph 190 of the judgment under appeal (reproduced in paragraph 31 above), without being challenged on this matter by CJ in the present ground of appeal, the reason for the contested decision was essentially the irreparable breakdown in the relationship of trust between the appellant and his management, a breakdown which was attributable not to a specific isolated episode but to a series of actions and omissions by the appellant between November 2011 and February 2012. In the contested decision, the Director stated, inter alia, that the appellant had ‘significant difficulty in accepting management decisions, … repeatedly refused to perform tasks and … behaved in an obstructive and provocative manner’.

168 The Tribunal was entitled to observe, in this connection, as it did in paragraph 191 of the judgment under appeal (reproduced in paragraph 31 above), that the appellant had attempted, 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. Contrary to what is submitted by CJ in paragraph 158 above, an illustration of such an allegation is provided in the arguments also repeated in paragraph 191 of the judgment under appeal, in which the Tribunal observes that CJ, in the eleventh plea of the action in Case F‑159/12, submitted 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’.

169 Another allegation of the same type is set out in paragraph 196 of the judgment under appeal (reproduced in paragraph 31 above) in which the Tribunal states that the appellant, in his application, sought to justify his attitude by asserting that ‘[the list of open files was] a document serving in principle [the] personal use [of a Legal Officer in the Legal Service]; … a Head of [the Legal Service maintained and updated], or at least should [have], ... [his] own list of cases [he] assign[ed] to subordinates, especially where the [Legal Service he] head[ed] consist[ed] 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’.

170 Consequently, CJ cannot claim that the Tribunal did not specify the allegations unsupported by evidence mentioned in paragraph 191 of the judgment under appeal.

172 Likewise, the Tribunal did not distort the evidence submitted to it in Case F‑159/12 when it held, in paragraphs 192 to 197 of the judgment under appeal (reproduced in paragraph 31 above), that, as observed in the contested decision, CJ did in fact have difficulty in accepting management decisions.

173 Contrary to what is submitted by CJ in paragraph 160 above, it is indeed clear from the evidence consisting of the emails of 8 and 9 November 2011, the content of which is set out in paragraphs 10 and 11 (reproduced in paragraph 2 above) and paragraph 193 of the judgment under appeal, 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’. There was no distortion at all in that recapitulation of the facts by the Tribunal.

174 On this issue, the Tribunal may furthermore not be accused of failing to have taken account of the fact that the information requested would be sent after a further exchange of emails, as shown in the reply proposal of 22 July 2013 to which the evidence in relation to the contents of the appellant’s replies to the request from his line manager was annexed, inasmuch as that reply proposal did not comply with the Tribunal’s instructions in that regard (see paragraphs 52 to 62 above).

175 As a result, CJ cannot claim that the Tribunal distorted the evidence so far as the example mentioned in paragraph 193 of the judgment under appeal was concerned.

177 In the same way, CJ has still to establish that the Tribunal distorted the evidence referred to when it held, in paragraphs 194 to 197 of the judgment under appeal (reproduced in paragraph 31 above), that CJ had had difficulties in accepting his line manager’s request to update the list of ongoing tasks and to classify them according to their urgency. The various items of information set out in this connection in the judgment under appeal are clearly shown in the evidence referred to in that regard.

178 Indeed, CJ, in his line of reasoning on this issue (see paragraph 161 above), has not put forward any argument such as to call into question the example cited by the Tribunal. First, contrary to what CJ asserts, the issue here is not whether the list requested was actually supplied, or whether the list supplied ‘manifestly [complied with] at least the essence of [the] instructions’. The example mentioned by the Tribunal was rather intended, as stated in the judgment under appeal, to illustrate the difficulties which the appellant had in accepting the requests made of him. Secondly, contrary again to what is alleged by CJ, it cannot be claimed that the list supplied on 14 December 2011, the same day as the request, was the list requested, while it is in fact clear from the evidence mentioned by the Tribunal and stated in the judgment under appeal that the list supplied did not comply with the instructions, like the list to be communicated on 19 December 2011.

179 Moreover, it is sufficient to observe regarding this point that, as late as 20 December or even in the application in Case F‑159/12, CJ still disputed the need to provide such a list (see paragraphs 195 and 196 of the judgment under appeal, reproduced in paragraph 31 above).

180 As a result, CJ cannot claim that the Tribunal distorted the evidence so far as the example mentioned in paragraphs 194 to 197 of the judgment under appeal was concerned.

182 In any event, it must also be observed that the Tribunal, in paragraphs 198 to 203 of the judgment under appeal (reproduced in paragraph 31 above), refers to the contents of various emails sent by the appellant to his line manager, which in themselves prove, as correctly observed in paragraph 203 of the judgment under appeal, that ‘the Director [of the ECDC] did not commit any manifest error of assessment in finding, in the contested decision, that the appellant had “significant difficulty in accepting management decisions’” and “behaved in [a] provocative manner”, thereby leading to an irreparable breakdown in the relationship of trust’.

183 Lastly, so far as concerns the criticisms made by CJ with regard to the assessment of the thirteenth plea in the action in Case F‑159/12, alleging breach of the principle of proportionality, they must be rejected in so far as those criticisms do not relate to reasoning set out by the Tribunal in paragraphs 207 and 208 of the judgment under appeal (reproduced in paragraph 32 above), in which the Tribunal correctly held that it was necessary in that case to take account of the fact that the contested decision was based on an irreparable breakdown in the relationship of trust, but are based on a different premise, which assumes that measures other than the termination of the contract could have theoretically been envisaged, but which fails to take account in this regard of the ground relied upon to terminate the appellant’s contract.

184 The complaint submitted on this point by CJ must therefore be rejected as must, consequently, the fifth ground of appeal in its entirety.

185 In accordance with Article 13(1) of Annex I to the Statute of the Court of Justice, if the appeal is well founded, the General Court is to quash the decision of the Civil Service Tribunal and itself give judgment in the matter. However, where the state of the proceedings does not permit a decision by the Court, it is to refer the case back to the Civil Service Tribunal for judgment.

186 In the present case, inasmuch as the appeal against the judgment under appeal has been dismissed so far as the pleas of that judgment and points of its operative part relating to Case F‑159/12 are concerned but has been upheld in part so far as Case F‑161/12 is concerned, it is necessary, in order, in particular, to characterise the fault which may be imputed to the ECDC and to determine the harm, if any, which CJ has suffered as a result, to refer the case back to the Tribunal so that it may rule on the head of claim seeking compensation and on the associated costs.

187 In the present case, one of the complaints submitted in the fourth ground of appeal has been upheld so far as it concerns Case F‑161/12. The other grounds of appeal and complaints, be they in relation to Case F‑159/12 or to Case F‑161/12, have been rejected.

188 Pursuant to Article 211(2) of the Rules of Procedure of the General Court, where the appeal is unfounded, that court is to make a decision as to costs.

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

190 Since CJ has been unsuccessful in relation to Case F‑159/12 and the ECDC has applied for costs, CJ must bear his own costs and be ordered to pay those incurred by the ECDC in the present proceedings so far as that case is concerned.

191 As regards Case F‑161/12 and so far as the present proceedings are concerned, since that case has been referred back to the Tribunal, it is appropriate to reserve the costs relating to that case in the present appeal proceedings.

1. Dismisses the appeal against 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) so far as that appeal concerns Case F‑159/12;

2. Declares that CJ shall bear his own costs and orders him to pay those incurred by the European Centre for Disease Prevention and Control (ECDC) in the present proceedings, in so far as those costs relate to Case F‑159/12;

3. Sets aside points 3 and 5 of the operative part of 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);

4. Refers the present case, in so far as it concerns Case F‑161/12, back to the Civil Service Tribunal;

5. Reserves the costs relating to the present proceedings in so far as they relate to Case F‑161/12.

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

Infringement of Article 47(b)(ii) of the CEOS and of Article 86 of the Staff Regulations

The misinterpretation of the first plea submitted in Case F‑159/12, relating to the closure of the inquiry before CJ had been heard

The misinterpretation of the fifth and the eighth pleas submitted in Case F‑159/12 as to the legal bases of the inquiry into the accusations of insubordination

The prejudice to CJ’s reputation as a result of false accusations of criminal conduct

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> CJ v ECDC (Judgment) [2016] EUECJ T-370/15 (05 October 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T37015.html Cite as: EU:T:2016:599, [2016] EUECJ T-370/15, ECLI:EU:T:2016:599

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