CJEU - F-135/14 / Judgment

Arguments of the parties

51. The applicant submits that, in breach of Article 41 of the Charter, the EMA adopted the contested decision without having given him the opportunity to put forward his arguments and without providing him with the documents on the basis of which it was making that decision.
     
52. In particular, according to the applicant, if he had been heard, he could have explained to the Agency that the data concerning the photocopying and printing of documents on which the AECE had based the contested decision were completely wrong. In addition, at the hearing, the applicant maintained that he could have pointed out to the Agency that he was exercising a fundamental right — that of access to the courts — and that he could not be penalised for that fact.
     
53. The EMA contends that, as the contested decision is not an act adversely affecting the applicant, it was not possible to infringe his right to be heard prior to the adoption of that decision.

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Findings of the Tribunal

54. The Tribunal recalls at the outset that observance of the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, forms part of the observance of the rights of the defence (see, to that effect, judgments of 19 June 2014 in BN v Parliament, F‑157/12, EU:F:2014:164, paragraph 84, and 15 April 2015 in Pipiliagkas v Commission, F‑96/13, EU:F:2015:29, paragraph 54).
     
55. That right has been set out in Article 41(2)(a) of the Charter, which acknowledges ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken’, a provision which is of general application (judgment of 11 September 2013 in L v Parliament, T‑317/10 P, EU:T:2013:413, paragraph 81). In order to ensure that the addressee of such a measure 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 (judgments of 21 December 2011 in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 65 and the case-law cited, and 9 September 2015 in De Loecker v EEAS, F‑28/14, EU:F:2015:101, paragraph 128).
     
56. Next, it should be explained that observance of the right to be heard involves the person concerned being put in a position, prior to the adoption of the decision adversely affecting him, effectively to make known his views on the truth and relevance of the facts and circumstances on the basis of which that decision was adopted (see, to that effect, judgments of 14 May 2014 in Delcroix v EEAS, F‑11/13, EU:F:2014:91, paragraph 35 and the case-law cited, and 13 November 2014 in De Loecker v EEAS, F‑78/13, EU:F:2014:246, paragraph 33).
     
57. As regards, in particular, a suspension decision adopted on the basis of Article 23 of Annex IX to the Staff Regulations, which is taken where there is an accusation of serious misconduct, it has been held that, while taking into account the urgency which normally obtains when such a decision is taken, that decision must be adopted in accordance with the rights of the defence, of which the right to be heard is one expression. Consequently, unless special circumstances are duly established, a decision to suspend a person from duty as a disciplinary measure may be adopted only after the official or staff member concerned has been put in a position effectively to make known his views on the evidence relied on against him and on which the competent authority proposes to base that decision (judgments of 15 June 2000 in F v Commission, T‑211/98, EU:T:2001:153, paragraphs 26 et seq., and 16 December 2004 in De Nicola v EIB, T‑120/01 and T‑300/01, EU:T:2004:367, paragraph 123).
     
58. In the present case, as has been stated in paragraph 39 above, the contested decision had the effect of depriving the applicant of the opportunity to perform his duties and was taken as a result of the fact that he had photocopied and printed an extremely large number of documents in connection — according to the EMA — with the dispute then pending before the Tribunal between the applicant and the Agency. As was concluded in paragraph 40 above, the contested decision must be regarded as equivalent, in terms of its effects, to a decision to suspend a person from duty as a disciplinary measure and is thus liable adversely to affect the applicant’s interests. In that regard, the contested decision could, in the circumstances, have had particularly serious implications for the applicant’s career, damaging his image both within and outside the Agency, since he occupied a position there which involved, inter alia, extensive contact with persons from outside the Agency.
     
59. Furthermore, the EMA did not rely, either in its written pleadings or at the hearing when responding to a question put by the Tribunal in that regard, on any special circumstance establishing that the AECE had been unable in practice to hear the applicant prior to the adoption of the contested decision or establishing that a prior hearing would have been incompatible with the interests of the service.
     
60. In those circumstances, the adoption of the contested decision should not have taken place without the applicant being heard beforehand.
     
61. However, it is common ground that the applicant was not heard prior to the adoption of the contested decision. That fact is not disputed by the EMA, which confines itself to contending, in essence, that the contested decision is not an act adversely affecting the applicant.
     
62. It must therefore be held that the applicant’s right to be heard before the adoption of any decision adversely affecting him was not observed by the EMA, in breach of Article 41(2)(a) of the Charter.