YD v FRA (Civil service - Temporary staff - Staff of the FRA - Withdrawal of the United Kingdom from the European Union - Loss of nationality of a Member State - Judgment)

In the third place, as regards the applicant’s argument that Brexit was used as a pretext for dismissing him, it should be noted that the concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Staff Regulations for dealing with the circumstances of the case (see judgment of 7 July 2021, ID v EEAS, T‑28/20, not published, EU:T:2021:416 , paragraph 160 and the case-law cited).

First, it is common ground that the decision to terminate the applicant’s contract was taken on the basis of Article 47(c)(ii) of the CEOS, in the context of a procedure which concerned all staff members with UK nationality within the FRA, and was aimed at an assessment with a view to possibly granting an exception.

Second, it should be noted that the applicant’s claim that Brexit was used as a pretext to terminate his contract, on account of his membership of a visible ethnic minority, is not supported by any sufficiently concrete evidence.

Thus, there is no cogent evidence showing that the contested decision was adopted for a purpose other than the interests of the service.

In the fourth place, in the complaint, the applicant developed arguments concerning his personal interest. He claimed that he had worked for 20 years at the FRA, that his age would cause him to encounter major difficulties in finding another job, and that the length of the procedure had caused him stress.

Those elements, which constitute the applicant’s personal interest, cannot prevent the adoption of the contested decision in so far as the AECE considered it necessary having regard to the interests of the service, in accordance with the case-law cited in paragraph 98 above.

In the fifth place, as regards the alleged failure to state reasons for the contested decision, it is apparent from that decision that the FRA referred to the procedure put in place and indicated that it had taken into account the interests of the service, in particular the obligation to adopt a decision on the possible grant of an exception before 31 December 2020, the internal organisation of the agency, whether there were difficulties in finding a replacement given the technical knowledge of the staff member concerned and his performance. It added that, in the specific case of the applicant, two accounting officers replaced him for a year, which ensured operational continuity within the FRA. Therefore, in so far as operational continuity within the FRA was not affected by the applicant’s departure, the interests of the service did not require the grant of an exception to the nationality requirement. Thus, it must be noted that, in the statement of reasons for the contested decision, the FRA set out the reasons for which it decided not to grant an exception to the nationality requirement in favour of the applicant.

In the light of the foregoing, the fifth plea must be rejected as unfounded.

The applicant claims that his sick leave was used as a ground for terminating his contract and that he was therefore discriminated against on grounds of health. He explains that it is apparent from the statement of reasons for the contested decision that he was refused the exception because of the appointment of the two deputy accounting officers who had ensured operational continuity during his sick leave. Thus, if he had not been absent because of his state of health, that would not have been the case.

The FRA disputes those arguments.

Article 1d of the Staff Regulations, made applicable to temporary staff by Article 10 of the CEOS, prohibits any discrimination. Paragraph 1 of that provision lists examples of discrimination based on, inter alia, sex, race, colour, ethnic or social origin, genetic features, language, religion or beliefs, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation.

It follows from paragraph 5 of that article that an official who considers himself or herself wronged by a failure to apply the principle of equal treatment to him or her is to establish facts from which it may be presumed that there has been direct or indirect discrimination.

It is clear from the wording of Article 1d of the Staff Regulations that discrimination based on state of health is not excluded from its scope.

In the present case, it is apparent from the contested decision that, given that the appointment of two deputy accounting officers during the applicant’s sick leave ensured continuity of service, the interests of the service did not justify the grant of an exception.

Similarly, according to the opinion of the Director of 19 March 2019, as the applicant’s line manager, given in the context of the first procedure, continuity of service could be ensured in the applicant’s absence, both by appointing a new accounting officer and by outsourcing his duties. That opinion, which was drafted before the beginning of the applicant’s sick leave and the appointment of the deputy accounting officers, shows that, according to the assessment of the interests of the service carried out by the FRA, continuity of service did not justify the grant of an exception in so far as other options were available for carrying out the applicant’s duties.

Thus, the applicant has not established the existence of discrimination based on his state of health.

Accordingly, the sixth plea in law must be rejected in its entirety.

The applicant seeks compensation for the non-material damage which he claims to have suffered, which he assesses ex aequo et bono at EUR 50 000. That damage is alleged to have resulted, in essence, from the illegality of the contested decision and of the procedures that led to its adoption, namely from the lack of authority and negligence of the FRA, unfair procedures and the fact that his employment was terminated in an unfair and unfounded manner, without him having had the opportunity to be heard.

The FRA disputes the applicant’s arguments.

In accordance with settled case-law in civil service matters, where an application for compensation is closely related to an application for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the application for compensation (see, to that effect, judgments of 2 December 2020, Thunus and Others v EIB , T‑318/19, not published, EU:T:2020:578 , paragraph 119 and the case-law cited).

In the present case, there is a close link between the claim for damages and the claim for annulment, since the applicant seeks compensation for the damage which he claims to have suffered as a result of the illegality of the contested decision and of the procedures which led to its adoption. However, as the examination of the pleas in law submitted in support of the claims for annulment did not reveal any illegality, and therefore no fault such as to render the administration liable, the claims for compensation must also be dismissed.

Consequently, the claim for compensation for non-material damage must be rejected.

The applicant requested the production by the FRA of information concerning the professional experience of the newly appointed accounting officer.

Article 90 of the Rules of Procedure of the General Court provides that measures of organisation of procedure are to be prescribed by the General Court. Moreover, it is clear from Article 92(1) of the Rules of Procedure that the Court has exclusive jurisdiction to assess the usefulness of measures of inquiry for the purpose of resolving the dispute (see, to that effect, judgment of 13 October 2021, IB v EUIPO , T‑22/20, EU:T:2021:689 , paragraph 163 (not published)).

In the present case, it follows from all the foregoing that the applicant’s claims for annulment and for damages were rejected without relying on the professional experience of the accounting officer who replaced him. Consequently, as the measure of inquiry requested by the applicant is neither relevant nor useful for the resolution of the dispute, there is no need to order it

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Under Article 135(1) of the Rules of Procedure, the Court may, if equity so requires, decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing its own, or even that it is not to be ordered to pay any costs.

The Court considers that it is fair in the circumstances of the case, in the light of Article 135(1) of the Rules of Procedure, to order each party to bear its own costs.

Dismisses the action.

Orders YD and the European Union Agency for Fundamental Rights (FRA) to bear their own costs.