Key facts of the case:
- By applications lodged on 25 October 2013 and 24 March 2014 respectively, and registered as Cases F‑106/13 and F‑25/14, DD has challenged the reprimand imposed on him by the Director of the European Union Agency for Fundamental Rights (FRA) and the decision adopted by that director to terminate his contract of indefinite duration as a member of the temporary staff, and has sought an order that the FRA compensate him for the harm he claims to have incurred as a result of those acts.
Results (sanctions) and key consequences of the case:
- Annuls the decision of 20 February 2013 by which the Director of the European Union Agency for Fundamental Rights imposed a reprimand on DD;
- Annuls the decision of 13 June 2013 by which the Director of the European Union Agency for Fundamental Rights terminated DD’s contract of indefinite duration as a member of the temporary staff;
- Dismisses the actions in Joined Cases F‑106/13 and F‑25/14 as to the remainder;
- Declares that the European Union Agency for Fundamental Rights is to bear its own costs and orders it to bear the costs incurred by DD.
65. Admittedly, case-law provides that, in order for the infringement of the right to be heard to justify the annulment of the decision at issue, it is also necessary to examine whether, had it not been for such an irregularity, the outcome of the procedure might have been different (judgment of 3 July 2014 in Kamino International Logistics, C-129/13 and C-130/13, EU:C:2014:2041, paragraph 79). In this regard, it must be ascertained whether the FRA has adduced adequate evidence for the Tribunal to find that the reprimand decision would have been adopted in any event even if the applicant had been heard. Having regard to the fundamental nature of the right to be heard, as enshrined in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, it is for the FRA, which adopted the reprimand decision and which is therefore best informed as to the factors underlying the adoption of that decision, to prove that, even if the applicant had been properly heard, it could not have adopted a different decision.
89. It follows from the general principle of EU law of respect for the rights of the defence, and in particular for the right to be heard enshrined in Article 41(2)(a) of the Charter, that the person concerned must be given the opportunity, before the drawing up of a decision adversely affecting him, to make known his views effectively as to the truth and relevance of the facts and circumstances on which that decision was based. Furthermore, respect for the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (judgment of 3 July 2014 in Kamino International Logistics, C‑129/13 and C-130/13, EU:C:2014:2041, paragraph 39).
96. On any view, as stated in paragraph 67 above, to hold that the Director would necessarily have adopted the same decision as that taken, even after hearing the applicant, would render meaningless the fundamental right to be heard, as enshrined in Article 41(2)(a) of the Charter, since the very content of that right implies that the person concerned must have the possibility of influencing the decision-making process at issue.