Judgment — ECLI:EU:F:2010:151
Date: 2010-11-23
Language of the case: French
Court formation: First Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - inadmissible

summary form, coherently and intelligibly, in the text of the application itself. (Orders in Case T‑85/92 De Hoe v Commission [1993] ECR II‑523, paragraph 20 and in Case F‑1/08 Nijs v Court of Auditors [2008] ECR‑SC I‑A‑1-229 and II‑A‑1-1231, paragraph 24). That is all the more true since, according to Article 7(3) of Annex I to the Statute of the Court of Justice of the European Union, the written stage of the procedure before the Tribunal is to comprise, in principle, a single exchange of written pleadings, unless the Tribunal decides otherwise. That particular feature of the procedure before the Tribunal explains why, in contrast to the provisions in respect of cases before the Court of Justice of the European Union or the General Court in the first paragraph of Article 21 of the Statute of the Court of Justice, the statement of the pleas in law in the application may not be brief (Adjemian and Others v Commission). 61 Thus, the abovementioned pleas in law, as they are presented, do not comply with the provisions of Article 35(1(e) of the Rules of Procedure and are, consequently, inadmissible. – The plea alleging infringement of Article 25 of the Staff Regulations and the obligation to state reasons 62 It must be pointed out that, according to settled case‑law, the obligation to state reasons laid down by the second paragraph of Article 25 of the Staff Regulations, applicable by analogy to contract staff for auxiliary tasks by virtue of Articles 11 and 81 of the Conditions of Employment, which merely reiterates the general obligation laid down in Article 253 EC, is intended, first, to provide the person concerned with details sufficient to allow him to ascertain whether the measure is well founded and whether it is appropriate to bring proceedings before the Tribunal and, secondly, to enable the Tribunal to review the legality of the measure. It follows that the obligation to state reasons, as thus given expression, constitutes an essential principle of European Union law which may be derogated from only for compelling reasons (Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22; Case C‑150/03 P Hectors v Parliament [2004] ECR I‑8691, paragraph 39; Case T‑1/90 Pérez-Ménguez Casariego v Commission [1991] ECR II‑143, paragraph 73; and Case T‑281/01 Huygens v Commission [2004] ECR‑SC I‑A‑203 and II‑903, paragraph 105). 63 According to settled case-law, the authority empowered to conclude contracts of employment is required to give reasons for its decisions, at very least not later than at the time when the complaint is rejected (Case T‑25/92 Vela Palacios v ESC [1993] ECR II‑201, paragraph 22, and Case T‑219/97 Brems v Council [1998] ECR‑SC I‑A‑381 and II-1085, point 83) and the scope of the obligation to give reasons must, in each case, be determined in the light of the specific circumstances (Case 61/76 Geist v Commission [1977] ECR 1419, paragraph 28; Case C‑169/88 Prelle v Commission [1989] ECR 4335, paragraph 9; and Case T‑36/93 Ojha v Commission [1995] ECR‑SC I‑A‑161 and II‑497, paragraph 60). In particular, the statement of reasons for a decision is adequate if the decision was taken in a context which is known to the official concerned and which enables him to understand the scope of the measure which has been adopted in regard to him (Case 125/80 Arning v Commission [1981] ECR 2539, paragraph 13; Case C‑294/95 P Ojha v Commission [1996] ECR I‑5863, paragraph 35; Case T‑36/93 Ojha v Commission, paragraph 60; and Case T‑198/02 N v Commission [2004] ECR‑SC I‑A‑115 and II‑507, paragraph 70). 64 It must also be pointed out that a decision refusing to renew a fixed-term contract is an act adversely affecting the person concerned within the meaning of Article 25 of the Staff Regulations if it is distinct from the contract in question, which will be particularly the case if it is based on new factors or if it constitutes an expression of the position of the administration adopted following a request from the member of staff concerned and dealing with the possibility, provided for in the contract, of renewing that contract (see, to that effect, order of 23 October 2009 in Joined Cases C‑561/08 P and C‑4/09 P Commission v Potamianos, not published in the ECR, paragraphs 45, 46 and 48, and Case T‑160/04 Potamianos v Commission [2008] ECR‑SC I‑A‑2‑75 and II‑A‑2‑469, paragraphs 21 and 23). Reasons must always be given for such a refusal decision (see, by analogy, in regard to a decision refusing to recruit a member of the temporary staff to a political group in the Parliament, Hectors v Parliament, paragraph 40, and in regard to decisions dismissing a member of the temporary staff recruited for a fixed period, Case T‑404/06 P ETF v Landgren [2009] ECR II‑2841, paragraphs 143 to 170). 65 In the present case, the contested decision is distinct from the contract concluded on 1 October 2007 between the Council and the applicant. 66 First of all, that decision contains a new factor compared with the contract concluded on 1 October 2007 since it states that the contract could not be renewed at the end of its initial duration of two years. However, clause 4 of the contract expressly provided for the possibility of a renewal for a period of one year. In addition, the Director General of DG A, Personnel and Administration, in his memoranda of 6 June and 5 July 2007, did not expressly inform the applicant that the contract being offered to him was not capable of being renewed within the three-year limit laid down in Article 88 of the Conditions of Employment. 67 Secondly, the applicant, by memorandum of 12 May 2009, submitted a request for renewal of his contract, with the support of his hierarchical superior, and the contested decision constitutes the Council’s position on that request. 68 Consequently, reasons needed to be given for the contested decision, which constitutes an act adversely affecting the applicant within the meaning of Article 25 of the Staff Regulations. 69 In the contested decision, the Council stated that, by virtue of the provisions of Article 29 of the Staff Regulations, it was required to fill the post by promotion, transfer of an official within the institution or by the appointment of a candidate who has been successful in a recruitment competition and that, since the applicant did not appear on a reserve list for a competition, he could not continue to occupy a post at the Council beyond 30 September 2009. By referring to those factors, the Council provided an adequate statement of the reasons for the contested decision. 70 In any event, by letter of 14 July 2009, the Council provided further reasons by stating that it wished to allocate the post occupied by the applicant to an official and that the arguments put forward by the applicant in his letter of 3 July 2009 did not call that decision into question. 71 Finally, the contested decision was adopted in a context known to the applicant. In particular, in the memorandum of 29 April 2009, the Director General of DG A, Personnel and Administration, had already informed the applicant that he could not renew his contract if the applicant was not successful in a recruitment competition. 72 It follows that the plea alleging infringement of the obligation to state reasons and infringement of Article 25 of the Staff Regulations must be rejected. – The plea alleging a manifest error of assessment 73 The applicant does not expressly raise the plea alleging a manifest error of assessment in his written pleadings. However, in the remarks he made regarding infringement of the obligation to state reasons, he argues that the fact that he has not been successful in an open competition does not, in itself, justify the refusal to renew his contract within the three-year limit laid down in Article 3b of the Conditions of Employment. Secondly, he disputes the claim that the post which he occupied is a post appearing in the list of posts annexed to the section of the budget dealing with the Council and which must be filled under the conditions laid down in Article 29 of the Staff Regulations, given that no vacancy notice in respect of that post was published. Finally, the Council, in breach of its duty to have regard for the welfare of staff, did not take account of the legitimate interest of the applicant, who had worked for the institution for many years, in having his contract renewed. Similarly, the Council did not take account of the interest of the service, from the point of view of the continuity of the service, in the extension of the applicant’s contract. 74 Thus, in the light of those factors, the applicant must be regarded as challenging, not merely the formal statement of reasons for the contested decision, but also the reasons which the Council relied on. 75 It has been held that the non-renewal of a fixed-term contract falls within the broad discretion of the competent authority and review by the European Union judicature is therefore limited to ascertaining that there has been no manifest error or misuse of powers. The renewal of a fixed-term contract is an option left to the discretion of the authority empowered to conclude contracts of employment, subject to the condition that it is in accordance with the interest of the service (Case T‑7/01 Pyres v Commission [2003] ECR‑SC I‑A‑37 and II‑239, paragraphs 50 and 64, and Case F‑35/07 Klug v EMEA [2008] ECR‑SC I‑A‑1-387 and II‑A‑1-2127, paragraphs 65 and 66). 76 It is also settled case-law that when taking a decision concerning the situation of a member of temporary staff, the competent authority must take account of all the factors which may affect its decision and, in particular, the interests of the member of temporary staff concerned. That follows from the administration’s duty to have regard to the welfare of its staff, which reflects the balance of reciprocal rights and obligations established by the Staff Regulations and, by analogy, the Conditions of Employment, in the relationship between the official authority and its staff (Pyres v Commission, paragraph 51; Case T‑258/03 Mausolf v Europol [2005] ECR‑SC I‑A‑45 and II‑189, paragraph 49; and Klug v EMEA, paragraph 67). 77 In the present case, the factors put forward by the applicant do not establish that the Council committed a manifest error of assessment when it adopted the contested decision. 78 It follows from what has previously been said that, as was stated in the memorandum of 14 July 2009 and the decision rejecting the complaint, the contested decision was adopted on the ground that, since the post occupied by the applicant was one of those appearing in the Council’s list of budgetary posts, the Council wished to appoint to it, from 1 October 2009, an official or a person who had been successful in a competition on the expiry of the two-year contract offered to the applicant. 79 First of all, the documents on the case-file disclose that the post occupied by the applicant has indeed been one of those appearing in the Council’s list of budgetary posts since 2004. 80 Secondly, the administration has a wide discretion in its choice of the most appropriate means for meeting its personnel requirements (Joined Cases 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 van der Stijl and Cullington v Commission [1989] ECR 511, paragraph 11). In addition, the principle that all officials should have reasonable career prospects within their institution means that, when the administration plans to fill a vacant post, it must first, according to Article 29 of the Staff Regulations, consider the possibilities of promotion or transfer within the institution and subsequently, after that consideration, examine the other possibilities which are open to it (Case T‑3/97 Campogrande v Commission [1998] ECR‑SC I‑A‑89 and II‑215, paragraph 65). 81 Under those circumstances and having regard to those principles, in particular to the freedom of choice which the administration enjoys in regard to methods of recruitment, the Council was fully entitled to refuse to renew the applicant’s contract on the ground that the applicant’s post should be occupied by an official. In addition, having regard to the rule that a permanent post appearing in the list of an institution’s budgetary posts must, in principle, by filled by the recruitment of an official and to the interest of the service in employing an official to perform tasks which are permanent in nature, the continuity of the service which the applicant invokes is not sufficient to establish a manifest error of assessment. 82 Thirdly, taking account of the applicant’s personal interests as part of the duty to have regard for the welfare of staff cannot require the administration to renew his contract as a member of the contract staff for auxiliary tasks where there is no sufficient interest of the service. In the present case, however, it emerged during the hearing that the Council had recruited an official shortly after the applicant’s departure, and it is not established that the new organisation of work adopted by the Council after that recruitment prevented the proper carrying out of the tasks previously assigned to the applicant. 83 It follows from the foregoing that the plea alleging a manifest error of assessment cannot be accepted. – The plea alleging infringement of Article 3b of the Conditions of Employment interpreted in the light of the principles flowing from Directive 1999/70 84 The applicant claims that the Council infringed the provisions of Article 3b of the Conditions of Employment, interpreted in the light of the principles flowing from Directive 1999/70, by recruiting him as a member of the contract staff for auxiliary tasks. The applicant argues that, having regard to the permanent nature of the tasks to be performed, he should have been appointed as a member of the temporary staff and not as a member of the contract staff for auxiliary tasks. 85 However, this plea is of no relevance to the lawfulness of the contested decision. Even supposing that the Council had recruited the applicant as a member of the temporary staff, the Council was, in any event, required to reject the application for renewal of the contract as a member of the contract staff for auxiliary tasks so as not to prolong the alleged illegality. – The plea alleging infringement of the principle that contracts should be performed in good faith 86 The applicant claims that the Council showed bad faith in performing the contract for employment as a member of the contract staff for auxiliary purposes concluded between them. In his submission, the institution required him to be successful in a recruitment competition before the expiry of the above contract but abstained, at the same time, from holding a competition which corresponded to his profile. 87 It must be recalled, first of all, that infringement of the principle that contracts should be performed in good faith can usefully be invoked, in an action for damages, so as to obtain compensation, where appropriate, for the damage suffered as a result of such wrongful conduct (see, to that effect, Joined Cases 43/59, 45/59 and 48/59 Von Lachmüller and Others v Commission [1960] ECR 463 at 475, and Case F‑19/08 Bennett and Others v OHIM [2009] ECR‑SC I‑A‑1‑207 and II‑A‑1-1137, paragraph 163). On the other hand, such a plea, which does not go to legality, is, as such, lacking in relevance in regard to the legality of the contested decision. 88 In any event, even supposing that this plea were effective, the applicant cannot legitimately argue that by virtue of the principle that contracts should be performed in good faith, the Council was obliged to have EPSO hold a competition corresponding exactly to his profile before the expiry of his contract. 89 First of all, a competition is held solely to meet the needs of the service and not to fulfil a contractual undertaking on the part of the administration. However, it has not been shown that the interest of the service required the holding of a competition open exclusively to architects before the expiry of the applicant’s contract. Secondly, and in any event, it does not appear from the documents on the case-file, in particular, the letters of 6 June and 5 July 2007, that the Council actually gave such an undertaking. In those letters, the administration merely indicated that the applicant would be given a contract so as to permit him, if possible, to take part in a competition held by EPSO. The letter of 6 June 2007, which refers to the ‘“architects” competition which would be published during the second half of that year’, cannot, having regard to the use of quotation marks, be understood as meaning that a competition reserved exclusively for architects would be held before the expiry of his contract. Finally, for the sake of completeness, it must be noted that although competition EPSO/AD/99/07 was not exclusively reserved for architects, it corresponded to the applicant’s profile inasmuch as Field 2 of the competition was entitled ‘Civil engineering, specialised technologies or architecture’ and that the duties which could be assigned to an official admitted to that competition in Field 2 corresponded to those which would normally be assigned to an architect. 90 Secondly, if, by this plea, the applicant is to be taken as claiming that the Council misused its powers, an interpretation which was expressly refuted at the hearing, such a plea could not, in any event, be upheld. 91 The applicant has adduced no evidence establishing a misuse of powers. In addition, during the life of the contract as a member of the contract staff for auxiliary purposes, EPSO held two competitions in the buildings sector to which the applicant was admitted. 92 It follows that the abovementioned plea must be rejected. 93 Therefore, and without there being any need rule on the pleas of inadmissibility raised, the pleas in support of the annulment of the contested decision must be rejected. 94 It follows from the foregoing that the application must be dismissed in its entirety. Costs 95 Under the terms of Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Title 2, Chapter 8 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. By virtue of Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any. 96 It follows from the reasons set out above that the applicant is the unsuccessful party. Furthermore, in its pleadings the Commission has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, the applicant must be ordered to pay the costs. On those grounds, THE CIVIL SERVICE TRIBUNAL (First Chamber) hereby: 1. Dismisses Mr Gheysens’ action; 2. Orders Mr Gheysens to pay all the costs. Gervasoni Van Raepenbusch Rofes i Pujol Delivered in open court in Luxembourg on 23 November 2010. W. Hakenberg S. Gervasoni Registrar President * Language of the case: French.