Provisional text

13 July 2022 (*)

( Arbitration clause – International contract staff of EUCAP Somalia – Common Foreign and Security Policy mission – Termination of fixed-term employment contract during the probationary period – Notification of the termination of the contract by registered letter with acknowledgement of receipt – Sent to an incomplete address – Starting point of the time period for lodging an internal appeal before seeking a judicial remedy – Determination of the applicable law – Mandatory provisions of national employment law – Invalidity of the probationary period clause – Improper delivery of notice – Compensation in lieu of notice – Retroactive payment of salary – Counterclaim)

In Case T‑165/20,

JC, represented by A. Van Himst, lawyer,

applicant,

EUCAP Somalia, represented by E. Raoult, lawyer,

defendant,

THE GENERAL COURT (Seventh Chamber),

Composed of R. da Silva Passos (Rapporteur), President, L. Truchot and M. Sampol Pucurull, Judges,

Registrar: H. Eriksson, Administrator,

having regard to the written procedure,

further to the hearing on 19 January 2022,

gives the following

Judgment (*)

1 By his action, which is based on Article 272 TFEU, the applicant, JC, seeks a declaration of invalidity of the letter of 4 November 2019 (‘the letter of 4 November 2019’) and the letter of 3 December 2019 (‘the letter of 3 December 2019’) (together, ‘the notifications of the notice period’) by which EUCAP Somalia notified him of its decision to terminate his employment contract and, if necessary, of the decision of 24 January 2020 by which it dismissed his non-disciplinary internal appeal (‘the decision of 24 January 2020’) against the decision to terminate his employment contract as notified by the letter of 3 December 2019 and, an order for EUCAP Somalia to pay him retroactively his remuneration up to the definitive, regular and lawful end of their contractual relationship.

2 EUCAP Somalia, formerly EUCAP NESTOR, is a Common Foreign and Security Policy (CFSP) mission of the European Union established by Council Decision 2012/389/CFSP of 16 July 2012 on the European Union Capacity Building Mission [in Somalia (EUCAP Somalia)] (OJ 2012 L 187, p. 40), adopted pursuant to Chapter 2 of Title V of the EU Treaty, on the CFSP. According to Article 2 of Decision 2012/389, as amended by Council Decision (CFSP) 2020/663 of 18 May 2020 (OJ 2020 L 157, p. 1), the objective of EUCAP Somalia is to assist Somalia in strengthening its maritime security capacities in order to enhance its ability to enforce maritime law.

3 Following an offer of employment from the human resources department of EUCAP Somalia sent to the applicant on 25 July 2019, he was recruited as an administrative and financial manager by a fixed-term employment contract signed on 20 August 2019 by EUCAP Somalia’s Head of Mission (‘the Head of Mission’) and on the following 21 August by the applicant (‘the contract’).

4 Article 17.1 of the contract fixed 8 September 2019 as the starting date of the applicant’s employment and stipulated that the duration of the contract was 12 months with the possibility of renewal by tacit agreement. Furthermore, Article 17.2 of the contract contained a probationary period clause worded as follows:

‘The probationary period shall be three (3) months. During or after the probationary period[,] the employee shall be dismissed if his work has not proved adequate. If the employee occupied the same post at the time the contract was signed, no probationary period will apply.’

5 Article 18.1 of the contract provided that ‘the contract [could] be terminated by the [e]mployer or by the [e]mployee by giving one month’s advance notice of intent in writing, including the reason for termination. The [e]mployee [was to] be heard by the Deputy Head of Mission before such decision [was] taken, with the Head of Mission being informed at all times.’

6 Article 21.1 of the contract stated that ‘the [e]mployee [could] submit an internal appeal against a measure adversely affecting his or her interests to the [e]mployer within [one] month of the date of the measure … The [e]mployee [was to] be heard by the Deputy Head of Mission before any decision [was] taken, with the Head of Mission being informed at all times’.

7 Article 22.1 of the contract provided that ‘disputes arising out of or relating to this contract [would] be referred to the jurisdiction of the Court of Justice of the European Union pursuant to Article 272 [TFEU]’. In addition, Article 22.2 of the contract stipulated that ‘the internal non-disciplinary appeal procedure provided for in Article [21] of the contract [was to] be exhausted before an action was brought before the Court of Justice of the European Union’.

8 During the phase prior to his deployment, the applicant, on 9 August 2019, provided EUCAP Somalia with a medical certificate from his own doctor, dated 31 July 2019, stating that he was ‘in good health’ and fit ‘to work anywhere in the world’. In addition, he provided EUCAP Somalia, on 10 August 2019, with various administrative forms completed by hand, two of which related to his personal contact details and to his medical situation.

9 In particular, as regards the form relating to his medical situation, the applicant mentioned, in the medical questionnaire attached to that form, that, in 2016, he had had a kidney transplant and had regular three-monthly check-ups. Furthermore, he stated that his medical report was very good and that he was taking five medications. He also stated that he had not suffered and did not suffer from kidney disease and that he has medically managed type 2 diabetes. The applicant confirmed that he had replied completely, truthfully and to the best of his knowledge to the questions on the medical questionnaire. He undertook to inform the medical unit immediately of any possible change in the medical data provided.

10 On 6 September 2019, the Head of the ‘Mission Support’ department sent an email to the applicant, to inform him of the suspension, owing to unforeseen circumstances, of the date of his effective deployment. It was stated therein that the salary for the service agreed under the contract would be paid.

11 On 7 September 2019, the applicant replied to her by email, pointing out that medical reasons did not justify that suspension. The applicant noted that on the same day, he had received a message from the medical adviser of EUCAP Somalia, asking him to complete the mandatory information required for the medical preparation of his deployment, and had answered it. He pointed out that he had already submitted, on 10 August 2019, the medical questionnaire attached to the form relating to his medical situation, duly completed. He stated that he had provided, during the recruitment procedure, which had commenced in March 2019, all the information requested by EUCAP Somalia.

12 By email of 15 September 2019, the Head of the ‘Mission Support’ department informed the applicant that she was unable to give him detailed explanations, although she also stated that the Head of Mission planned to reconsider his deployment in order to fulfil his duty of care towards the staff of EUCAP Somalia.

13 On 17 September 2019, the applicant’s lawyer sent an email to EUCAP Somalia seeking confirmation that it would pay the applicant’s salary and the corresponding daily subsistence allowances until a final decision on his deployment was taken.

14 On 24 September 2019, a medical expert delivered an opinion to the medical adviser of EUCAP Somalia on the sanitation conditions and limited access to medical resources in Somalia, including a medical objection to sending to Somalian territory, and in particular to Garowe (Somalia), any person on lifelong heavy medication, including immunosuppressants, daily insulin injections for diabetes or any other chronic disease requiring regular medical consultations.

15 On 25 September 2019, the Deputy Head of Mission sent a letter to the applicant, by email, in which he stated, in essence, that the Head of Mission had significant concerns, in view of the information provided on the general medical situation in Somalia and his duty of care towards the staff of EUCAP Somalia, with regard to the applicant’s physical condition described in the medical questionnaire he had completed and the very limited medical assistance available in northern Somalia. He invited the applicant to a meeting to discuss the conditions of the planned deployment, which might represent a real and significant risk to his health.

16 On the same day, the applicant sent to the human resources department of EUCAP Somalia a form relating to his bank details, in order to facilitate payment of his salary, which contained his address with the civic number.

17 On 14 October 2019, a meeting was arranged between the applicant, the applicant’s lawyer, the Deputy Head of Mission, the medical adviser of the Civilian Planning and Conduct Capability (‘the CPCC’), the legal department of the CPCC and the legal adviser of EUCAP Somalia, in order to present the applicant with the medical infrastructure situation in Somalia and the Mission’s duty of care and to set out any reasons for a possible termination of the contract. At the end of the meeting, the applicant was informed that EUCAP Somalia would contact him within a week.

18 By the letter of 4 November 2019, sent on the following 8 November by registered post with acknowledgement of receipt, the Head of Mission notified the applicant of the decision to terminate the contract, by giving one week’s notice, starting to run from Monday 18 November 2019. That letter was sent to the applicant at the address which he had mentioned, on 10 August 2019, in the form relating to his personal contact details. That address did not include a civic number.

19 On 19 November 2019, the applicant wrote by email to the Deputy Head of Mission, to the Head of the ‘Mission Support’ department and to the human resources department of EUCAP Somalia, requesting that he be sent a certificate of employment and the pay slips for the two preceding months.

20 On 26 November 2019, the applicant, through his lawyer, told the legal adviser of EUCAP Somalia that he had already provided EUCAP Somalia with his full address in the form relating to his bank details, sent on 25 September 2019.

21 By the letter of 3 December 2019, sent on the same day by registered post with acknowledgement of receipt, and received by the applicant on the following 5 December, the Head of Mission notified the applicant of the decision of EUCAP Somalia to terminate the contract, worded as follows:

‘In order to safeguard the rights and interests of [EUCAP Somalia] and in the event that you wish to raise the lack of validity of the [termination] letter dated 8 [N]ovember 2019, we hereby notify you – subject to all necessary reservations and without any admission of liability – of our decision to end the employment relationship between EUCAP Somalia and yourself by giving one week’s notice which will begin on 9 [D]ecember 2019.’

22 On 10 December 2019, the legal adviser of EUCAP Somalia replied to the email from the applicant’s lawyer of 26 November 2019. That reply stated that, for the purposes of correspondence between the Mission and its employees, only the information given in the form relating to the personal contact details counted. Accordingly, it was pointed out to the applicant that EUCAP Somalia was entitled to send, on 8 November 2019, the letter of the preceding 4 November on the basis of that information alone, without the subsequent bank form being taken into account for that purpose. In that email, the legal adviser of EUCAP Somalia added that, if the applicant had wished to supplement the information in the form relating to his personal contact details he should have sent that amended form to the Mission. Consequently, according to that same email, the incompleteness of that information was regarded as the consequence of an error attributable to the applicant.

23 On 16 December 2019, the human resources department of EUCAP Somalia sent the applicant a certificate of employment stating that there was a contractual employment relationship from 8 September to 25 November 2019 and that the contract had not been performed.

24 On 23 December 2019, the applicant, through his lawyer, disputed the period of employment referred to in that certificate, pointing out that he had received only one letter dated 3 December 2019 establishing a notice period of one week starting to run from the following 9 December. He stressed the importance of that information for the purpose of declaring an exact period of employment for Belgian unemployment benefit. He also requested to be sent a copy of the letter of 4 November 2019, which he did not receive.

25 On 2 January 2020, the applicant, through his lawyer, in an email sent, inter alia, to the Chief of Staff acting as Deputy Head of Mission of EUCAP Somalia, lodged an application, pursuant to Article 21 of the contract, relating to the non-disciplinary internal appeal procedure (‘the internal appeal’) against the decision of EUCAP Somalia to terminate the contract as notified by the letter of 3 December 2019.

26 By letter of 24 January 2020, received by the applicant on the following 31 January, the Chief of Staff of EUCAP Somalia dismissed the applicant‘s application of 2 January 2020, refusing in particular to classify it as an internal appeal, since it was not lodged within the period, laid down in Article 21.1 of the contract, of one month from the date of the contested measure. Nevertheless, demonstrating ‘good governance’, he stated that he agreed to reply to the applicant’s claim. He therefore explained that his duty of care required the termination of the contract in view of the applicant’s physical unsuitability for the post owing to his medical situation and to the state of medical infrastructures in Somalia.

II. Forms of order sought by the parties

27 The applicant claims that the Court should:

– annul the letter of 4 November 2019;

– annul the letter of 3 December 2019;

– annul, if necessary, the decision of 24 January 2020;

– order EUCAP Somalia to pay his salary retrospectively until the definitive, proper and lawful end date of the contractual relationship;

– pay interest on the amounts due at the interest rate applied by the European Central Bank (ECB) for its main refinancing operations, increased by three and a half percentage points;

– order EUCAP Somalia to pay the costs.

28 EUCAP Somalia contends that the Court should:

– primarily, dismiss the action in its entirety as inadmissible or, in any event, as manifestly lacking any foundation in law;

– in the alternative and as a counterclaim, declare that the contract is void owing to an absence of consent;

– in the further alternative and as a further counterclaim, declare that the contract is terminated owing to force majeure for medical reasons;

– order the applicant to pay the costs.

III. Law

29 Before analysing the application and the counterclaim brought by EUCAP Somalia, it is necessary to examine the Court’s jurisdiction to rule on the present dispute and to determine the applicable law.

…

33 In his pleadings and in reply to a written question from the Court on this matter, the applicant points out that, when an action is brought pursuant to an arbitration clause, the law applicable to it is the national law designated by the contract or by the parties. Moreover, he argues that his claim, in that it refers to a decision to terminate an employment contract, must be subject to the applicable substantive employment law. In that regard, he points out that EUCAP Somalia referred, in the decision of 24 January 2020, to Belgian law. He added that he does not object to the application of that law to the contractual relationship at issue, in accordance with Article 3(1) and Article 8(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6, ‘the Rome I Regulation’) and, at the very least, with Article 3(2) and Article 8(4) of that regulation. Accordingly, the applicant invokes the application, primarily, of the contractual clauses and of EU law and, subsidiarily, of Belgian law and, in particular, of the Law of 3 July 1978 on employment contracts (Moniteur belge of 22 August 1978, p. 9277) (‘the Law on employment contracts’). In addition, the applicant states that the mandatory provisions of Belgian law must take precedence over incompatible contractual clauses.

34 EUCAP Somalia, for its part, maintains that it is necessary to apply, primarily, the autonomous law of the EU civilian CFSP missions, namely the contract, the code of conduct and discipline, and the standard operating procedures, in accordance with Article 1.1 of the contract. It also calls for the application of EU law and, in addition, of the national substantive law applicable to the contract, namely, in this case, Belgian law, which is the law of the applicant’s permanent residence, in accordance with the Rome I Regulation and, in particular, with Article 8(4) of that regulation. Moreover, EUCAP Somalia stated, in essence, that application of the contract in a situation for which it has provided must take precedence over everything else, so that the Court is not entitled, when its jurisdiction is based on Article 272 TFEU, to refrain from applying a clause in the contract even if that clause is contrary to the overriding provisions of the national law applicable to the contract.

35 The parties confirmed that the national substantive law applicable to the contract was Belgian law and that, in order to examine the possible contractual liability of EUCAP Somalia, it was necessary to apply, primarily, the clauses in the contract and its annexes and, subsidiarily, Belgian law with regard to matters not dealt with by the contract. The parties nevertheless reiterated their disagreement as regards the primacy of the application of the mandatory provisions of national law applicable to the contract over incompatible clauses.

36 First of all, it should be pointed out that, under Article 340(1) TFEU, the contractual liability of the Union is governed by the law applicable to the contract in question.

37 Disputes arising from the performance of a contract must be resolved, in general, on the basis of the contractual provisions (see judgment of 18 November 2015, Synergy Hellas v Commission, T‑106/13, EU:T:2015:860, paragraph 37 and the case-law cited). Interpreting the contract in the light of provisions of national law applicable to it is justified only where there is doubt on the content of the contract or on the meaning of some of its provisions, or where the contract alone does not enable all aspects of the dispute to be resolved. Therefore, the assessment of the substance of the application must be carried out in the light of the contractual provisions alone and recourse must be had to the applicable national law only if those provisions do not enable the dispute to be resolved (see, to that effect, judgment of 13 July 2017, Talanton v Commission, T‑65/15, not published, EU:T:2017:491, paragraph 43 and the case-law cited).

38 Nevertheless, that principle cannot lead to the application of the clauses in the contract allowing the parties to evade the mandatory provisions of the applicable national substantive law, which cannot be derogated from and in accordance with which the obligations under the contract have to be or have been performed.

39 Moreover, when the institutions, bodies, offices and agencies of the Union perform a contract, they remain subject to their obligations under the Charter of Fundamental Rights of the European Union (‘the Charter’) and the general principles of EU law (see, to that effect, judgment of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraph 86). Thus, if the parties decide, in their contract, to confer on the EU judicature, by means of an arbitration clause, jurisdiction over disputes relating to that contract, that judicature will have jurisdiction, independently of the applicable law stipulated in that contract, to examine any infringement of the Charter or of the general principles of EU law (judgment of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraph 81).

40 In the event that the contract is silent, the EU Courts must, where appropriate, determine which law is applicable, using the rules laid down in the Rome I Regulation (see, to that effect, judgment of 18 February 2016, Calberson GE v Commission, T‑164/14, EU:T:2016:85, paragraph 25).

41 In that regard, Article 3(1) and (2) of the Rome I Regulation provides as follows:

‘1. A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract.

42 Article 8 of the Rome I Regulation, applicable to individual employment contracts, is worded as follows:

‘1. An individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article.

4. Where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that indicated in paragraphs 2 or 3, the law of that other country shall apply.’

43 In the present case, the contract does not specify which law is applicable. Nevertheless, the parties agree on the designation of Belgian law as the national law applicable to the contract. Therefore, in accordance with the principles resulting from Article 3 of the Rome I Regulation, to which Article 8(1) of the same regulation refers, Belgian law is the national law applicable to the contract.

44 In any event, as EUCAP Somalia rightly points out, and the applicant does not dispute, it is apparent from all the circumstances that the contract is more closely connected with Belgium. It is true that the place of performance laid down in Article 5.1 of the contract was the town of Garowe. However, it is established that the contract was not performed on the place of effective deployment in Somalia, that the applicant remained in Belgium during the period of employment, that he has Belgian nationality and is permanently resident in Belgium, that the recruitment procedure and signing the contract took place in Belgium and, lastly, that the criterion of permanent residence for determining the law applicable to the social security obligations under Article 13 of the contract implies the designation of Belgium. Therefore, even if it were appropriate to apply Article 8(4) of the Rome I Regulation instead of the provisions thereof referred to in paragraph 43 above, Belgian law would still be the national law applicable to the contract.

45 In those circumstances, according to the case-law cited in paragraph 37 above, this dispute must be examined, primarily, on the basis of the contract and, subsidiarily, on the basis of Belgian national law, where there is doubt on the content of the contract or on the meaning of some of its provisions, or where the contract alone does not enable all aspects of the dispute to be resolved. Furthermore, the application of the clauses of the contract cannot allow the parties to evade the mandatory provisions of Belgian law, which cannot be derogated from and in accordance with which the obligations under the contract have to be or have been performed.

46 The forms of order sought by the applicant comprise an application for a declaration that the notifications of the notice period and, if necessary, the decision of 24 January 2020 are void, and an application for damages.

47 EUCAP Somalia raises two pleas of inadmissibility, the first alleging the lack of clarity and precision of the action, the second alleging failure to exhaust the internal appeal procedure provided for in the contract.

(b) The plea of inadmissibility alleging failure to exhaust the internal appeal procedure

58 EUCAP Somalia raises the inadmissibility of this action on the ground that the applicant did not previously lodge an internal appeal within the one-month period laid down in Article 21.1 of the contract, from the dispatch, on 8 November 2019, of the letter of 4 November 2019. Consequently, the applicant failed to have exhausted the contractual internal appeal procedure provided for in Article 22.2 of the contract.

59 It should be pointed out that Article 22.2 of the contract makes a referral to the EU Courts conditional on the exhaustion of the internal appeal procedure laid down in Article 21.1 of the contract, which must be initiated within a period of one month from the date of the measure adversely affecting the applicant’s interests.

60 Consequently, the admissibility of this action must be assessed in the light of a combined reading of Articles 21.1 and 22 of the contract. It is for the Court to verify, in accordance with those clauses, that the applicant has exhausted the contractual internal appeal procedure. In particular, it is necessary to determine whether the applicant lodged that appeal within one month of the date of the decision adversely affecting his interests.

61 As has been stated in paragraph 39 above, the administration of the Union remains subject to its obligations under the Charter when it performs a contract.

62 In that regard, it is necessary to ensure that all the questions of fact and law that are relevant to a dispute are examined in order to ensure effective judicial protection under Article 47 of the Charter (see, to that effect, judgment of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraph 79), which provides that ‘everyone is entitled to a … hearing … by an independent and impartial tribunal … established by law’.

63 It follows that, when a contract including an arbitration clause in favour of the EU Courts pursuant to Article 272 TFEU contains a stipulation according to which a party, before bringing an action before the Court, must exhaust a domestic remedy, that procedure must be conducted under conditions which do not deprive the person concerned of his or her right to effective judicial protection.

98/78, EU:C:1979:14, paragraph 15).

65Therefore, the reference to the date of the measure concerned, laid down in Article 21.1 of the contract and constituting the start of the one-month period for lawfully introducing, under the contract, an internal appeal, must be interpreted as referring to the date on which the applicant was able to have actual knowledge of the content of that measure.

66For the purpose of determining the date on which the applicant had actual knowledge of the decision to terminate the contract, it should be noted that it is the responsibility of the party alleging that an action is out of time to prove on what date the contested decision was notified and, in all cases, on what date the person concerned had actual knowledge of it, if it is an individual measure (see, by analogy, judgment of 29 November 2018, WL v ERCEA, T‑493/17, not published, EU:T:2018:852, paragraph 59). In the present case, that is for EUCAP Somalia to demonstrate.

67By letter of 2 January 2020, the applicant lodged, on the basis of Article 21.1 of the contract, an internal appeal against the letter of 3 December 2019 notifying the decision to terminate the contract, which actually came to his attention on the following 5 December.

68However, EUCAP Somalia maintains that the applicant had already been aware of the decision to terminate the contract since its notification given by sending, on 8 November 2019, the letter of 4 November 2019 to his address by registered post with acknowledgement of receipt. Thus, in accordance with Articles 21.1 and 22.2 of the contract, the applicant should have brought an internal appeal against that decision by 8 December 2019 at the latest and his letter of 2 January 2020 cannot be regarded as an act having lawfully brought an internal appeal.

69In that regard, EUCAP Somalia states that several inconsistent factors emerge from the file relating to the application for legal aid made by the applicant before bringing this appeal and dismissed by the President of the General Court by order of 9 September 2020. Those factors show that he had been aware of the decision to terminate the contract since November and December 2019. In particular, the applicant had received unemployment benefit since 1 December 2019, following a request he had made to EUCAP Somalia on 19 November 2019 in order to obtain a certificate of employment. According to EUCAP Somalia, registration with the competent Belgian unemployment authorities must take place within eight days following the first day of unemployment and it is necessary to submit to those authorities proof of the decision to terminate the contract, which implies knowledge of that decision.

70Furthermore, EUCAP Somalia disputes whether the applicant may rely on the fact that he did not receive the letter of 4 November 2019 on the ground that it was sent to an incomplete address. In fact, that letter was sent to the address indicated by the applicant in the form relating to his personal contact details, the only form which had to be taken into account for postal exchanges between the parties. Therefore, the fact that it might have been sent to an incomplete address is the consequence of an inexcusable error made by the applicant, which cannot be attributable to EUCAP Somalia.

71In the first place, as regards the alleged knowledge by the applicant, in November 2019, of the content of the letter of 4 November 2019, it should be pointed out that, although EUCAP Somalia opted to notify the letter of 4 November 2019 by registered post on the following 8 November, it does not produce evidence of that notification, in particular by producing the acknowledgement of receipt of the registered letter duly signed by the applicant or by leaving an attempted delivery note at the last address indicated by the applicant. Thus, it cannot be established that the letter of 4 November 2019 reached the applicant in November 2019 and, therefore, that he could have had actual knowledge on that date of the decision to terminate the contract.

72Moreover, the fact that the applicant disputed, on 23 December 2019, the period of employment referred to in the certificate of employment of 16 December 2019 (see paragraph 24 above) in that the date of the end of the contract indicated therein, namely 25 November 2019, did not correspond to the date of the end of the notice indicated in the letter of 3 December 2019, and requested on that occasion that he be sent a copy of the letter of 4 November 2019 to which reference was made in the letter of 3 December 2019, corroborates the fact that he was not aware of the content of that first letter in December 2019.

73Admittedly, EUCAP Somalia sent that letter to the address mentioned by the applicant in the form relating to his personal contact details and the parties agree that that address was incomplete, because the applicant failed to mention the civic number.

74However, it is apparent from the file that the applicant, before the dispatch at issue, had sent EUCAP Somalia a complete address, including the civic number, in two other forms, one relating to the details of a beneficiary in the event of death, submitted at the same time as the form relating to his personal contact details, and the other relating to his bank details, submitted by email on 25 September 2019.

75Accordingly, EUCAP Somalia, acting with due diligence, could have enabled the applicant to have actual knowledge of the content of the letter of 4 November 2019 by looking for his complete address, which was contained in the information he had provided. Consequently, in the specific circumstances of the case, EUCAP Somalia cannot rely on the fact that the applicant sent it, in the form relating to his personal contact details, an address which did not mention the civic number.

76Moreover, as regards the arguments of EUCAP Somalia relating to the applicant’s legal aid, it is true that it is apparent from that file that the applicant received unemployment benefit paid by the competent Belgian authorities for the whole of the month of December. Nevertheless, the document proving that payment is dated 16 January 2020. Furthermore, it appears, from reading the internal appeal brought by the applicant on 2 January 2020 that, on that date, he stated that he was not in receipt of those benefits owing to the incompleteness of his administrative file. Consequently, it cannot be ruled out that the unemployment benefit was paid retroactively from a date after 2 January 2020, and on the basis of the certificate of employment sent by EUCAP Somalia to the applicant on 16 December 2019, mentioning a date of the end of the period of employment identical to that of the end of the notice mentioned in the letter of 4 November 2019. It therefore cannot be inferred with sufficient certainty from that retroactive payment that the applicant, before 16 or 23 December 2019 or even before 2 January 2020, could have informed the Belgian authorities of the decision to terminate the contract as notified by the letter of 4 November 2019.

77Similarly, the communication by the applicant to EUCAP Somalia of his full details, on 26 November 2019, does not permit the conclusion that, on that date, he had knowledge of the letter of 4 November 2019. The applicant’s reminder to EUCAP Somalia, in order to make sure that any notification had been or would be sent to the right address, may be explained by the content of the information he had received at the meeting on 14 October 2019, which meant waiting for subsequent notification to his address of a decision of EUCAP Somalia. In fact, at that meeting, EUCAP Somalia informed the applicant that the purpose of that stage was not for it immediately to take a decision concerning the contract, but rather to give him the opportunity to receive explanations regarding the working conditions in the workplace, to hear his comments and questions and to inform him that EUCAP Somalia would contact him again within a week regarding the action it intended to take. Therefore, that communication cannot in itself show that the applicant had knowledge of the letter of 4 November 2019 on the following 26 November.

78In the light of all the foregoing, it must be concluded that EUCAP Somalia does not produce evidence that the applicant had actual knowledge, in November 2019, of the content of the letter of 4 November 2019. Moreover, it is apparent from the file that the applicant was able to have actual knowledge thereof on 31 January 2020, the date on which that letter was actually communicated to him by EUCAP Somalia as an annex to the decision of 24 January 2020.

79In the second place, as regards the date on which the applicant had actual knowledge of the content of the letter of 3 December 2019, the parties agree that the decision to terminate the contract was notified to the applicant by sending that letter to his complete address, where it was duly received and brought to his notice on the following 5 December.

80Consequently, since the decision to terminate the contract, as notified by the letter of 3 December 2019, was an individual measure adversely affecting the applicant, he was entitled to rely on Article 21.1 of the contract and to lodge an appeal by letter of 2 January 2020, and that appeal must be classified as an internal appeal against that decision.

81Since that internal appeal was lodged by the applicant within one month of having knowledge of the letter of 3 December 2019 adversely affecting him, in accordance with Article 21.1 of the contract, the present action, brought pursuant to Article 22.2 of the contract, is admissible. Consequently, the plea of inadmissibility raised by EUCAP Somalia in that regard must be rejected.

The infringements affecting the notifications of the notice period and the decision of 24 January 2020

82In his action, the applicant does not challenge the decision to terminate the contract as such or, in other words, EUCAP Somalia’s right to end the employment relationship.

83The applicant requests, however, that the notifications of the notice period and, if necessary, the decision of 24 January 2020 be declared void in that they infringe several stipulations of the contract and EU law and, where relevant, the applicable national law.

The notifications of the notice period

84In support of his application for notifications of the notice period to be declared void, the applicant alleges, in essence, first, infringement of the obligation to state reasons, secondly, as regards in particular the letter of 4 November 2019, the ‘lack of effect and validity’ of that letter and infringement of Article 21 of the contract and of the right to be heard during the internal appeal procedure, thirdly, infringement of Article 18.1 and Article 17.2 of the contract and, fourthly, infringement of the Law on employment contracts in the event that Belgian law is applicable.

85The Court will examine in turn the applicant’s first three complaints. With regard to the fourth complaint, it has been invoked, in essence, in support of the second and third complaints and will be examined in that connection.

The validity and effect of the notification of the decision to terminate the contract by letter of 4 November 2019 and infringement of the right to be heard pursuant to Article 21 of the contract

99The applicant seeks a declaration that the letter of 4 November 2019 is void in that it was only communicated to him through the decision dismissing his internal appeal. In support of that argument, he argues that that letter was not properly notified to him and does not comply with the conditions for formal validity stipulated in that regard in Belgian law. He also alleges infringement by EUCAP Somalia of Article 21 of the contract and of the right to be heard during the internal appeal procedure.

100As regards the regularity of the notification of the letter of 4 November 2019, the applicant maintains that the dispatch of that letter is irregular in that it was carried out on the following 8 November by registered post to an incomplete address. He adds that the mere evidence of payment of registered mail is not sufficient to establish proof of dispatch, but that it is proof of receipt of the mail which constitutes good evidence in Belgian law. Moreover, the subsequent communication by EUCAP Somalia, in January 2020, of the letter of 4 November 2019 cannot be deemed to regularise the initial dispatch of that letter to an incorrect address and therefore cannot justify a retroactive application of the notice period it sets.

101Consequently, the letter of 4 November 2019 must be considered null and void and the notice period of one week it sets incurably void, and therefore incapable of producing effects on the date specified, in accordance with the fourth subparagraph of Article 37(1) of the Law on employment contracts. The applicant also states that that nullity applies only to notification of termination with prior notice, without however affecting the existence of the termination, so that the letter of 4 November 2019 cannot be raised against him in order to contest his application for compensation in lieu of notice.

102EUCAP Somalia considers, for its part, that the applicant was formally informed of the termination of the contract because he probably received the letter of 4 November 2019 following its dispatch on the following 8 November. Moreover, it states that that letter was communicated to the applicant by registered post with acknowledgement of receipt to the address which he had himself indicated in the form relating to his personal contact details, completed on 10 August 2019. Therefore, in accordance with Belgian employment law, and particularly Article 37(1) of the Law on employment contracts, the notification of that letter is valid since the incompleteness of the address put on it is attributable to an inexcusable error made by the applicant. In any event, EUCAP Somalia maintains that by sending the letter of 3 December 2019, it regularised notification of the notice period in accordance with Belgian law.

103In the present case, the contract contains no provisions on governing the part of the dispute relating to observance of the rules on formal validity applicable to notification by EUCAP Somalia to the applicant of the decision to terminate the contract. Consequently, in accordance with the case-law cited in paragraph 37 above, it is necessary to apply the rules of Belgian law in order to examine the substance of the arguments put forward by the applicant in connection with this complaint.

104The second subparagraph of Article 40(2) of the Law on employment contracts, read in conjunction with Article 37(1) of that law, provides, inter alia, that, when notice of termination is given by the employer, it can be notified, if it is not to be invalid, only by registered letter, taking effect on the third working day following the date on which it was sent, or by process server.

105In that regard, first of all, it is for the employer to prove that the registered letter reached its addressee. When notification is made by registered post, the letter must be sent to the correct address. If it is sent to an incorrect address, the registered letter cannot have any effect. The ineffectiveness of the notification cannot be remedied by sending a copy of the letter to the employee. Therefore, notification by registered letter is invalid if the address on the deposit slip is incorrect (cour du travail de Bruxelles (Higher Labour Court, Brussels), judgment of 7 November 2016, No 2015/AB/742). Moreover, the mere production by the employer of proof of payment for registering a letter is not sufficient (cour du travail de Bruxelles (Higher Labour Court, Brussels), judgment of 22 April 2016, No 2014/AB/765).

106Also, the notice must, if it is not to be invalid, be notified to the last address known to the employer (arbeidshof Brussel (Higher Labour Court, Brussels), judgment of 19 October 2012, No 2011/AB/1014). In other words, if notification was made to an incorrect address when the employer knew or should have known the new address, that notification is irregular and the employer is liable for compensation in lieu of notice (cour du travail de Gand (Higher Labour Court, Ghent), judgment of 14 November 2011, J.T.T. 2012, 1124, 1589). An employer cannot therefore be criticised for not having complied with the obligation to send the notification to the correct address if it was sent to an incorrect address owing to error or negligence on the part of the employee (cour du travail de Liège (Higher Labour Court, Liège), judgment of 2 March 2005, J.T.T. 2005, 926, 383). In that regard, the employee is required to inform his employer in good time of a change of address. Accordingly, it has been held that, in a case in which the employee had not adduced evidence that he had informed his employer of his change of address, the notification to the employee’s previous address had been effected properly, so that the notice period had been able to run from the date set by the employer (Liège Labour Court, judgment of 14 January, 2004, No 27.452-98). However, it may be that the employer can take into account other details or addresses provided by employee in another context (see, to that effect, cour du travail de Liège (Higher Labour Court, Liège), judgment of 2 March 2005, J.T.T. 2005, 926, 383).

107Moreover, the consequence, in Belgian law, of an error committed by the employer when writing the employee’s address when sending a letter terminating an employment contract is the absolute invalidity of the notice period stated in the letter, which cannot be remedied by the employee. Termination is in that case immediate, unless the court considers after a reasonable period that the parties have waived their right to invoke immediate termination (Cour de cassation (Court of Cassation), judgment of 28 January 2008, R.G. No S.07.0056.N; see, also, cour du travail de Bruxelles (Higher Labour Court, Brussels), judgment of 7 November 2016, No 2015/AB/742). In other words, the invalidity of the notice period does not affect the existence of the termination (Cour de cassation (Court of Cassation), judgment of 6 January 1997, J.T.T. 1997, 119). The employee in possession of an invalid notice may, as soon as he is aware of the invalidity of the notice, invoke the termination and demand immediate payment of compensation in lieu of notice, or continue to perform the contract until the end of the irregularly notified notice period and, when it expires, invoke the right to compensation in lieu of notice (cour du travail de Liège (Higher Labour Court, Liège), judgment of 15 January 2008, J.T.T. 2008, 1004, 160).

108Lastly, as long as the employee has not invoked the invalidity of the notice period in order to avail himself of immediate termination, the employer may notify him of the new notice period in accordance with legal requirements (cour du travail de Liège (Higher Labour Court, Liège), judgments of 15 January 2008, R.G. No 8356/2007, and 17 October 2013, No 2012/AL/332). In such circumstances, in accordance with Article 37/1 of the Law on employment contracts, the notice period starts to run from the Monday following the week in which the new notice period has been notified.

109In the present case, first, it has been noted in paragraphs 67 to 78 above, that EUCAP Somalia did not adduce evidence of the actual consequences of notification of the letter of 4 November 2019, in particular by producing an acknowledgement of receipt duly signed by the applicant or by leaving an attempted delivery note at the last address indicated by the applicant and that it cannot be established that that letter enabled the applicant to have actual knowledge on the following 8 November of the decision to terminate the contract and of the notice period set for that purpose.

110In those circumstances, in accordance with the case-law cited in paragraph 105 above, the notification of the letter of 4 November 2019, sent to an incorrect address, as confirmed by the deposit slip showing an incomplete address, is irregular and results in the absolute invalidity of the notice period indicated in that letter, which cannot be remedied by the subsequent communication of that letter by EUCAP Somalia to the applicant on 24 January 2020.

111Secondly, it is also apparent from paragraph 73 above that EUCAP Somalia sent the letter of 4 November 2019 to an incomplete address, owing to the wrongful omission, by the applicant, of the civic number in the form relating to his personal contact details.

112It is true that, according to the Belgian law referred to in paragraph 106 above, that wrongful omission by the applicant could exempt EUCAP Somalia from its responsibility for having failed to fulfil the obligation to notify the notice period to the applicant’s correct address. Nevertheless, as has been stated in paragraph 74 above, the applicant, before the dispatch at issue, had informed EUCAP Somalia of his full address in the form relating to the identity of a beneficiary in the event of death, provided at the same time as the form relating to his personal contact details, and in a form relating to his bank details. In those circumstances, EUCAP Somalia, which had access to that information, could have looked for the applicant’s more complete address among the other information he provided. Therefore, the applicant’s negligence, in those circumstances, is not such as to exempt EUCAP Somalia from its responsibility for the irregularity of the notification of the letter of 4 November 2019 and, consequently, to prevent the invalidity of the notice period set by that letter.

113Thirdly, it should be pointed out that EUCAP Somalia sent the applicant a second notification letter, on 3 December 2019, which informed him of the decision to terminate the contract ‘by giving one week’s notice which [would] start to run on Monday 9 December 2019’. The applicant does not deny that he received, and knew the content of, that letter, sent by registered post to his complete address. Therefore, in accordance with the case-law cited in paragraph 108 above, it must be considered that the letter of 3 December 2019 constitutes, on the date it was received by the applicant, the following 5 December, rectification by EUCAP Somalia of the error committed when notifying the notice period by letter of 4 November 2019.

114As for the applicant’s argument, raised at the stage of his written replies to the questions put by the Court, by which he contests the regularity of the second notice period owing to its conditional nature, it should be pointed out that, according to Article 84(1) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. According to the case-law, that provision is also applicable to complaints or arguments (see judgment of 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 59 and the case-law cited). However, a plea or an argument which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application and which is closely connected therewith, must be declared admissible (see judgment of 15 December 2021, Oltchim v Commission, T‑565/19, EU:T:2021:904, paragraph 87 and the case-law cited).

115In the present case, it should be pointed out, first, that the aforementioned argument was not based on matters which came to light in the course of the procedure and, secondly, it is not closely connected with an argument stated in the application. Moreover, if that argument was formulated in connection with the applicant’s reply to a question put by the Court, it must be stated that it exceeds the scope of that question (see, to that effect and by analogy, judgment of 7 February 2019, RK v Council, T‑11/17, EU:T:2019:65, paragraph 54). Therefore, that argument must be rejected as inadmissible.

116It is apparent from all those factors that the letter of 4 November 2019 was improperly notified by EUCAP Somalia to the applicant in that it did not comply with the conditions for formal validity established in that regard by Belgian law, which results in the absolute invalidity of the notice period set. On the other hand, it is also apparent that EUCAP Somalia rectified that error by the regular notification of the letter of 3 December 2019, which therefore has full effect with regard to the applicant.

Infringement of Articles 17.2 and 18.1 of the contract

118First, the applicant considers that since he was not given the opportunity to actually work, the quality of his work cannot be considered as inadequate and it cannot be concluded that his work has not proved adequate within the meaning of Article 17.2 of the contract. Accordingly, EUCAP Somalia should have applied not Article 17.2 of the contract, but Article 18.1 thereof, which provides that either party has the right to terminate the contract at any time, subject to one month’s notice. By deciding to apply a notice period of one week, EUCAP Somalia infringed the terms of both Article 17.2 of the contract, which does not provide for mandatory notice, and Article 18.1 thereof, which provides for a notice period of one month.

119Secondly, the applicant points out that, since 1 January 2014, Belgian law has prohibited, on pain of nullity, any derogation from the abolition of probationary period clauses in employment contracts. Applied to the present case, the rule entails the nullity of Article 17.2 of the contract, which EUCAP Somalia uses as the basis for terminating the contract. Consequently, the probationary period clause in Article 17.2 of the contract should be deprived of effect and only Article 18.1 of the contract, providing for a notice period of one month, should have been applied. Moreover, the applicant points out that the consequence of the alleged irregularity of the notification of the letter of 4 November 2019, under Belgian law, is the nullity of the notice period of one week which it sets. The applicant maintains that, in such a case, that law implies the immediate termination of the contract by payment of compensation in lieu of notice.

120Therefore, the decision to terminate the contract as notified by letters of 4 November and 3 December 2019 is null and void owing to infringement of both the contractual clauses and the provisions of Belgian law.

121For its part, EUCAP Somalia points out that, at the time of the decision to terminate the contract, the applicant was in a probationary period of three months, from 8 September to 8 December 2019. Consequently, Article 17.2 of the contract constitutes the only contractual basis of the decision to terminate the contract.

122In that regard, first of all, although EUCAP Somalia acknowledges that Belgian employment law no longer includes provisions relating to the probationary period, it nevertheless considers that the Court is not entitled, when its jurisdiction is based on Article 272 TFEU, to refrain from applying a contractual clause, even if that clause were shown to be contrary to the national law applicable to the contract, since the application of clauses freely concluded between EUCAP Somalia and the applicant must take precedence. Therefore, it is appropriate to apply Article 17.2 of the contract despite the designation of Belgian law as the law applicable to the contract.

123Next, EUCAP Somalia considers that it did not commit any error when it considered that, on the basis of that article, on medical grounds, the applicant did not have the physical fitness necessary for the proper performance of the contract.

124Lastly, it points out that it nevertheless also applied Belgian law and, in that connection, set a notice period of one week, in accordance with Article 37(2) and Article 40(2) of the Law on employment contracts, even though Article 17.2 of the contract did not require it to do so. EUCAP Somalia also stated that the mechanism put in place in Article 17.2 of the contract, in that it provides for the possibility of unilaterally terminating the contract within the first three months of the contractual relationship, is in line with Belgian law which allows the unilateral termination of a fixed-term employment contract during the first half of the agreed duration of the contract, within the first six months.

125In the present case, as regards Belgian law, applicable to the contract (see paragraph 45 above), first, the Law of 26 December 2013 regarding the implementation of a unified status for blue-collar and white-collar workers regarding the notice period, the first day of unpaid sick leave and accompanying measures (Moniteur belge of 31 December 2013, p. 104147) abolished the right to lay down a probationary period clause in employment contracts as from 1 January 2014. That abolition applies on pain of nullity to any contrary clause on the basis of Article 6 of the Law on employment contracts, which provides that a stipulation contrary to the provisions of the law and its implementing measures is null and void in so far as it seeks to restrict the rights of workers or to increase their obligations. Secondly, it introduced the possibility for both the employer and the worker, during the first half of the planned duration of a fixed-term employment contract and within six months, to terminate the contract by complying with new notice periods, laid down in Article 37/2(1) of the Law on employment contracts.

126Those Belgian legal provisions, which organise and ensure the protection of workers, are therefore mandatory.

127Thirdly, it is true that the parties freely agreed on the existence of a probationary period of three months, from 8 September to 8 December 2019, and on the terms of Article 17.2 of the contract laying down, for that purpose, a probationary period clause.

128Nevertheless, it should be pointed out that that probationary period clause, freely agreed between the parties, does not provide for a notice period in the event of termination of the contract during the probationary period considered, thus restricting the rights of the applicant and extending his obligations in infringement of Articles 6 and 37/2 of the Law on employment contracts.

As is apparent from paragraph 45 above, that probationary period clause cannot, on pain of nullity, evade the mandatory provisions of the Belgian substantive employment law applicable to the contract.

130Consequently, as the applicant requests, in essence, it is necessary to declare the probationary period clause provided for between the parties in Article 17.2 of the contract null and void and to rule out its application for the purposes of settling the present dispute.

131Thus, it is true that the application to the present case of Article 40(2) of the Law on employment contracts, read in conjunction with Article 37(1) and Articles 37/1 and 37/2 of that law, required EUCAP Somalia to respect a notice period of one week, since the applicant belonged to the category of workers with less than three months’ seniority.

132However, it is apparent from a combined reading of Articles 6, 37/2 and 40 of the Law on employment contracts that the parties to a fixed-term employment contract may provide for a clause according to which termination of the contract is subject to a derogating notice period which is longer than that provided for under Article 37/2 of that law, since such a clause would increase the rights and reduce the obligations of the worker.

133That is the situation in the present case. It should be pointed out that Article 18.1 of the contract, the terms of which are reproduced in paragraph 5 above, provided that it was possible to terminate the contract unilaterally provided that formal notice of one month was given.

134Therefore, it must be concluded that EUCAP Somalia should have applied the notice period stipulated in Article 18.1 of the contract, since that notice period affords more protection to the applicant than the notice period of one week provided for under the provisions of the Law on employment contracts.

135Therefore, it is necessary to uphold the applicant’s complaint alleging infringement of Articles 17.2 and 18.1 of the contract, and it is not necessary to rule on the additional arguments put forward by the applicant in that regard.

136In so far as concerns the consequences of that infringement for the letter of 3 December 2019, it should be pointed out that EUCAP Somalia properly notified the decision to terminate the contract by sending the letter of 3 December 2019 which was received by the applicant on the following 5 December (see paragraph 113 above). Thus, the decision to terminate the contract became regular, valid and enforceable against the applicant on 5 December 2019, and that decision became definitively effective on the expiry of the applicable notice period. Moreover, it is apparent, in essence, from Article 40(2) of the Law on employment contracts that, in Belgian law, when a termination with formal notice is validly notified in writing, stating a notice period, but that period is insufficient, the notice period is not invalid. Therefore, failure to comply with the contractual notice period results in the application of the notice period of one month contractually laid down in Article 18.1 of the contract, instead of the legal period of notice of one week set in that letter.

…

170In the light of all the foregoing conclusions, first, it is necessary to uphold the applicant’s complaints alleging lack of validity and effect of the notification by letter of 4 November 2019 of the decision to terminate the contract and infringement of Articles 17.2 and 18.1 of the contract. It is therefore concluded that the applicant is entitled to his salary for the period between 26 November and 8 December 2019 and to compensation in lieu of notice on that basis. Consequently, the action is upheld in so far as concerns the first and fourth heads of claim and dismissed as to the remainder. Secondly, the counterclaim presented by EUCAP Somalia, in the alternative, is dismissed.

171Under 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. As EUCAP Somalia has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

Hereby:

4. Dismisses the remainder of the application;

Da Silva Passos

Truchot

Sampol Pucurull

Delivered in open court in Luxembourg on 13 July 2022.

*

Language of the case. French.

1 Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.