62010FJ0008_EN
Parties
Grounds
Operative part
Parties
In Case F-8/10,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Johan Gheysens, former member of the auxiliary contract staff of the Council of the European Union, residing in Malines (Belgium), represented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers,
applicant,
v
Council of the European Union,
represented by M. Balta and K. Zieleśkiewicz, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL (First Chamber),
composed of S. Gervasoni (Rapporteur), President, S. Van Raepenbusch and M.I. Rofes i Pujol, Judges,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 8 July 2010,
gives the following
Judgment
Grounds
1. By application received at the Tribunal Registry by fax on 25 January 2010 (the original being lodged on 27 January 2010), Mr Gheysens brought the present action for, inter alia, annulment of the decision not to extend his fixed-term contract beyond 30 September 2009.
Legal context
2. Article 29(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations)’ provides:
‘Before filling a vacant post in an institution, the Appointing Authority shall first consider:
(a) whether the post can be filled by:
(i) transfer, or
(ii) appointment in accordance with Article 45a, or
(iii)	promotion
within the institution;
(b) whether requests for transfer have been received from officials of the same grade in other institutions, and/or whether to hold a competition internal to the institution, which shall be open only to officials and temporary staff as defined in Article 2 of the Conditions of Employment of other servants of the European [Union];
and then follow the procedure for competitions on the basis either of qualifications or of tests, or of both qualifications and tests. …’
3. Under Article 3b of the Conditions of Employment of other servants of the European Union (‘the Conditions of Employment’)
‘For the purposes of these Conditions of Employment, “contract staff for auxiliary tasks” means staff engaged in an institution within the time limits set in Article 88 in one of the function groups referred to in Article 89:
(a) to perform full-time or part-time duties others than those referred to in Article 3a(1)(a), without being assigned to a post included in the list of posts appended to the section of the budget relating to the institution concerned,
(b) to replace, after the possibilities of temporary posting of officials within the institution have been examined, certain persons who are unable for the time being to perform their duties, namely:
(i) officials or temporary staff in the function group AST;
(ii) exceptionally, officials or temporary staff in the function group AD occupying a highly specialised post, except Heads of Unit, Directors, Directors General and equivalent functions.
The use of contract staff for auxiliary tasks is excluded where Article 3a applies.’
4. With regard to the duration of contracts for contract staff for auxiliary tasks within the meaning of Article 3b of the Conditions of Employment, Article 88 of the Conditions of Employment provides:
‘In the case of contract staff referred to in Article 3b:
(a) contracts shall be concluded for a fixed period; they shall be renewable;
(b) the actual period of employment within an institution, including any period under renewal, shall not exceed three years.
Periods covered by a contract as a member of the contract staff referred to in Article 3a shall not be counted for the purposes of the conclusion or renewal of contracts under this Article.’
Facts
5. The Council of the European Union entered into a contract with the GP-DHV-FBO association for assistance in regard to buildings for the period from 1993 to 1997. In the framework of that contract, the applicant, employed by that association and a qualified architect, was made available to the Council to provide services, principally, in regard to computer-aided design and facility management.
6. In 1998, the Council entered into a direct contract for part-time services with the applicant’s firm of architects, which was renewed several times until 30 September 2004.
7. Because of the increase in, and the permanent nature of, the abovementioned facility management tasks, the Council, in the context of the 2004 budget, decided to allocate a category B post to the Buildings Unit so as to permit the recruitment of an official qualified to perform those tasks. However, because of the technical nature of the post, no official or successful candidate in a competition could be appointed to it.
8. By contract of 1 October 2004, the Council employed the applicant as a member of the auxiliary staff in category B, group IV, class 2, for a period of one year in order to perform the duties of a facility management operator in the Unit in Directorate General (DG) A, Personnel and Administration, responsible, in particular, for buildings policy and projects. By an addendum signed on 3 October 2005, that contract was extended for a year until 30 September 2006.
9. By memorandum of 11 May 2006, the Director General of the Council’s DG A, Personnel and Administration, informed the applicant that he could have an extension of his contract as a member of the auxiliary staff for one year, until 30 September 2007, but that, by virtue of the provisions of the Staff Regulations, it was not possible for him to obtain a contract for an indefinite period.
10. By a further addendum, the applicant’s contract as a member of the auxiliary staff was extended to 30 September 2007.
11. By memorandum of 6 June 2007, the Director General of DG A, Personnel and Administration, replied to an email of 25 May 2007 from the Vice-President of the Union Syndical trade union concerning the legal situation of the applicant in the Council. In that memorandum, of which the applicant received a copy, it was stated that the Council was prepared to offer him, on an exceptional basis and in order to take account of his personal situation, a contract as a member of the contract staff. It was stated in that memorandum that, during the time that that contract was in effect, the applicant could take part in competitions held by the European Personnel Selection Office (EPSO), but unless he was successful in one of them, he could not be employed as an official by the Council. In an email of 22 June 2007, the Vice-President of the Union Syndical trade union agreed to the proposal to offer the applicant a contract as a member of the contract staff for auxiliary tasks. In a memorandum of 5 July 2007, the Director General of DG A, Personnel and Administration, took note of that agreement.
12. On 1 October 2007, the Council entered into a contract for a fixed term with the applicant as a member of the contract staff for auxiliary tasks in group III, grade 11, step 1, for a period of two years. Clause 4 of that contract provided that the contract was renewable and that the actual period of employment, including any renewal of the contract, could not exceed three years.
13. On 23 October 2007, EPSO published the notice of open competition EPSO/AD/99/07 for the purpose of constituting a reserve list of administrators in the buildings sector (OJ 2007 C 248 A, p. 1). The applicant took part in the tests for the competition but was not included in the reserve list. In Title I of the competition notice, it was stated that the competition was being held to recruit engineers (AD 5) in the buildings sector.
14. By memorandum of 21 December 2007, the applicant submitted a complaint within the meaning of Article 90(2) of the Staff Regulations against the decision by which the Council had employed him as a member of the contract staff for auxiliary tasks for a period of two years and classified him in function group III, grade 11, step 1 In that complaint, the applicant claimed that he should have been classified in function group IV and employed for an indefinite period.
15. That complaint was rejected by decision of the Council of 24 June 2008.
16. On 10 October 2008, the applicant brought an action against that decision, registered as Case F-83/08, in which proceedings were stayed by order of the President of the Second Chamber of 20 February 2009 until the dispute in Case F-134/07 Adjemian and Others
v Commission
was definitively resolved. The appeal against the judgment of the Tribunal of 4 June 2009 (in Joined Cases F-134/07 and F-8/08 Adjemian and Others
v Commission
[2009] ECR-SC I-A-1-149 and II-A-1-841) is still pending before the General Court of the European Union (Case T-325/09 P).
17. By memorandum of 29 April 2009, the Director General of DG A, Personnel and Administration, reminded the applicant that his contract expired on 30 September 2009 and that the duration of his contract should allow him to take part in a competition. The authority empowered to conclude contracts of employment stated that the reserve lists for competition EPSO/AD/99/07 had just been published and that the applicant’s name did not appear in them. The memorandum ended with the following sentence:
‘I must remind you that, as stated in the earlier memoranda, if you do not succeed in another EPSO competition, your contract as a member of the contract staff for auxiliary tasks cannot be renewed after its expiry next September.’
18. By memorandum of 12 May 2009, the applicant asked the Director General of DG A, Personnel and Administration, to renew his contract for a period of one year, stating that his head of service wished that to be done in the interest of the continuity of the service and that his contract provided that the total duration of his employment could be three years.
19. On 17 June 2009, EPSO published a notice of open competition for assistants (AST 3) in the building sector (EPSO/AST/94/09) (OJ 2009 C 137 A, p. 1). The applicant was admitted to the tests for that competition. At the date of the hearing, the reserve list had not yet been published.
20. By memorandum of 24 June 2009 concerning the ‘[e]xpiry of [the applicant’s] contract on 30 September 2009’, the Director General of DG A, Personnel and Administration, informed the applicant that he was unwilling to extend his contract beyond 30 September 2009 on the ground that, by virtue of the provisions of Article 29 of the Staff Regulations, he was required to fill the post by promotion, transfer of an official or by the appointment of a candidate who has been successful in a competition. Since the applicant had not been successful in a competition, he could not continue to occupy a post in the Council after 30 September 2009. The Director General reminded the applicant that the two-year contract as a member of the contract staff for auxiliary tasks had been accorded to him as an exceptional measure so as to take account of his personal situation and to give him an opportunity to take part in a competition.
21. By memorandum of 3 July 2009, the applicant asked the Director General of DG A, Personnel and Administration, to reconsider his decision of 24 June 2009, relying, on the one hand, on the wish of his head of service that his contract should be extended for one year and, on the other, on the permanent nature of the tasks he had performed at the Council for nearly sixteen years. In that memorandum, the applicant pointed out that, by reason of his profile as an architect and not as an engineer, he could not expect to be included in the reserve list for competition EPSO/AD/99/07.
22. By letter of 14 July 2009, the Director General of DG A, Personnel and Administration, confirmed his decision of 24 June 2009, stating that he wished to fill the post occupied by the applicant by appointing an official and that the arguments put forward in the letter of 3 July 2009 were not such as to call that decision into question.
23. By letter of 24 July 2009, the applicant submitted a complaint within the meaning of Article 90(2) of the Staff Regulations in which he sought the withdrawal of the decisions of 29 April and 24 June 2009. In the same letter, he also sought the adoption of all measures necessary to rectify his administrative situation (‘the application for rectification of the applicant’s administrative situation’).
24. By memorandum of 2 October 2009, notified on 13 October 2009, the authority empowered to conclude contracts of employment rejected the complaint (‘the decision rejecting the complaint’) and the application for rectification of the applicant’s administrative situation (‘the decision rejecting the application for rectification of the applicant’s administrative situation’).
Form of order sought
25. The applicant claims that the Court should:
¾ annul the decision not to extend his contract beyond 30 September 2009 and the decision rejecting his application for rectification of his administrative situation;
¾ order the Council to pay the costs.
26. The Council contends that the Court should:
¾ dismiss the action as manifestly inadmissible and, in any event, unfounded;
¾ order the applicant to pay the costs.
Law
Subject-matter of the action
27. The applicant asks the Tribunal, inter alia, to annul the decision not to extend his contract beyond 30 September 2009, without, however, specifying expressly which decision he is referring to. Given the many measures adopted by the Council concerning non-renewal of the applicant’s contract, it must be determined which of those measures is the contested decision.
28. Under the terms of the memorandum of 29 April 2009, the applicant’s contract ‘expires on 30 September 2009’. None the less, that memorandum does not represent the administration’s definitive position regarding the end of the applicant’s employment. The memorandum ends with a paragraph pointing out that the applicant’s contract cannot be renewed unless he is successful in a competition other than EPSO/AD/99/07. The Director General o f DG A, Personnel and Administration, thus informed the applicant that there was still a chance of his contract being renewed and that possibility was not purely hypothetical inasmuch as, on 17 June 2009, EPSO published a notice of open competition in the buildings sector in which the applicant took part.
29. In contrast, the memorandum of 24 June 2009 gives the applicant no hope of a renewal of his contract. First of all, the subject of the memorandum is the ‘[e]xpiry of [the applicant’s] contract on 30 September 2009’, whereas the memorandum of 29 April 2009 deals, more generally, with ‘[the applicant’s] contract’. Secondly, the memorandum of 24 June 2009 clearly states the legal grounds — the appointing authority’s obligation to appoint an official to fill a vacant post — as well as the grounds of fact — the applicant’s failure to be successful in a competition — which justified non-renewal of his contract. Finally, the author of that memorandum no longer envisages that anything other than the applicant’s possible success in a competition could justify an extension of his employment beyond 30 September 2009.
30. Two factors confirm that the memorandum of 24 June 2009 is indeed the decision in which the administration adopted a definitive position on the applicant’s contractual situation. On the one hand, that memorandum was drafted in reply to the applicant’s request of 12 May 2009, in which he referred, inter alia, to the wish of his hierarchical superior that his contract be renewed for one year. On the other hand, in the memorandum of 14 July 2009, the Director General of DG A, Personnel and Administration, replied to the applicant that he could do no more than ‘confirm the terms of [his] memorandum of 24 June 2009’.
31. Moreover, at the oral hearing the Council itself stated, in reply to a question from the Tribunal, that the memorandum of 24 June 2009 was the act adversely affecting the applicant in the present case.
32. In any event, even if it were to be considered that the decision not to renew the applicant’s contract was taken by the memorandum of 29 April 2009 and not by the memorandum of 24 June 2009, this would have no incidence either on admissibility, since the applicant’s complaint was submitted within three months of notification of the memorandum of 29 April 2009, or on the assessment of the pleas put forward in the action, since both memoranda are based, essentially, on the same ground, namely, that the applicant had not been successful in a competition and could therefore no longer occupy his post.
33. Thus, in relation to the applicant’s application to annul the decision not to extend his contract beyond 30 September 2009, the action must be regarded as being directed against the decision of 24 June 2009 (‘the contested decision’).
34. Furthermore, the action is also directed against the decision rejecting the applicant’s request for rectification of his administrative situation.
Admissibility
Arguments of the parties
35. The Council contends that the action is inadmissible in its entirety, on the one hand, by reason of its lack of clarity and precision and, on the other, by reason of the inadmissibility of the administrative complaint, which likewise lacked clarity and precision.
36. In addition, with regard, more specifically, to the pleas referring to the decision to reject the applicant’s application for rectification of his administrative situation, the Council contends that those pleas are inadmissible if they are interpreted as seeking an order requiring it to adopt a particular decision. The Tribunal has no jurisdiction to issue injunctions in the context of a review of legality under Article 91 of the Staff Regulations.
Findings of the Tribunal
37. With regard, first, to the pleas directed against the application for rectification of the applicant’s administrative situation, Articles 90 and 91 of the Staff Regulations make the admissibility of an action brought by a member of staff against the institution to which he belongs conditional on the proper observance of the preliminary administrative procedure laid down thereunder. Those rules are mandatory and the parties may not waive them (orders in Case T-34/91 Whitehead
v Commission
[1992] ECR II-1723, paragraphs 18 and 19, and in Case T-15/96 Liao
v Council
[1997] ECR-SC I-A-329 and II-897, paragraph 54). According to Article 77 of the Rules of Procedure, the Tribunal may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action.
38. It is imperative that a legal action brought against an act of the authority empowered to conclude contracts of employment adversely affecting a member of staff should be preceded by a pre-contentious administrative complaint which has been rejected by an express or implied decision. A legal action brought before the end of that pre-contentious procedure is inadmissible under Article 91(2) of the Staff Regulations by reason of being premature (see, to that effect, Joined Cases T-47/89 and T-82/89 Marcato
v Commission
[1990] ECR II-231, paragraph 32, and Case T-197/98 Rudolph
v Commission
[2000] ECR-SC I-A-55 and II-241, paragraph 53).
39. The complaint of 24 July 2009 is to be read as being divided into two parts: first, a complaint within the meaning of Article 90(2) directed against the contested decision; and, secondly, a request to have the applicant’s administrative situation rectified, the scope of which goes beyond a mere challenge to the refusal to renew the contract.
40. By the memorandum of 2 October 2009 in reply to the complaint, the authority empowered to conclude contracts of employment therefore adopted two distinct decisions: first of all, the decision rejecting the complaint and, secondly, the decision rejecting the request to rectify the applicant’s administrative situation (see, by analogy, Rudolph
v Commission, paragraphs 53 to 55).
41. However, it is common ground that the applicant did not submit a complaint pursuant to Article 90(2) of the Staff Regulations against the decision rejecting the request for rectification of his administrative situation.
42. Consequently, the pleas raised against the decision rejecting the request for rectification of the applicant’s administrative situation are inadmissible.
43. Secondly, with regard to the pleas of inadmissibility raised against the contested decision, the Tribunal points out that, according to settled case-law, the courts of the European Union are empowered to determine, according to the circumstances of each case, whether the sound administration of justice justifies rejection of the merits of pleas in law without first ruling on the plea of inadmissibility raised by the defendant in regard to those pleas (see, to that effect, in particular, Case C-23/00 P Council
v Boehringer
[2002] ECR I-1873, paragraphs 51 and 52; Case T-171/02 Regione autonoma della Sardegna
v Commission
[2005] ECR II-2123, paragraph 155; and Case F-134/06 Bordini
v Commission
[2008] ECR-SC I-A-1-87 and II-A-1-435, paragraph 56).
44. In the present case, the Tribunal considers that the sound administration of justice warrants examining the merits of the pleas raised against the contested decision and, where appropriate, rejecting such pleas on their merits, without there being any need to examine the pleas of inadmissibility raised against that decision.
The plea directed against the contested decision
Arguments of the parties
45. The applicant claims, first and in general terms, on the one hand, that, the contested decision infringes Article 25 of the Staff Regulations and the obligation to give reasons, the principles flowing from Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43), the rules laying down minimum conditions for avoiding unfair dismissals of workers, the duty to have regard for the welfare of staff and the principle of sound administration and, on the other hand, that the contested decision has no legal basis.
46. Secondly, the applicant states that the contested decision is vitiated by an inadequate statement of reasons and that he cannot therefore understand the reasons why his contract was not renewed. In addition, that inadequate statement of reasons has not been rectified by the decision rejecting the complaint. First of all, the fact that the applicant has not been successful in an open competition does not, in itself, justify the refusal to renew a contract within the three-year limit laid down in Article 3b of the Conditions of Employment. Secondly, he denies that the post which he occupied was a post provided for in the list of posts annexed to the part of the budget concerning the Council which had to be filled under the conditions laid down in Article 29 of the Staff Regulations, given that no vacancy notice for that post was published. Finally, the Council, contrary to its duty to have regard for the welfare of staff, did not take account of the interest of the applicant, who has worked for the institution for many years, in having his contract renewed. Similarly, the Council did not take account of the wish of the applicant’s head of service, who asked for an extension of the applicant’s contract in the interest of the continuity of the service.
47. Thirdly, the contested decision infringes Article 3b of the Conditions of Employment, interpreted in the light of the principles flowing from Directive 1999/70 and the judgment in Adjemian and Others
v Commission . According to the applicant, the Council could not lawfully employ him as a member of the contract staff for auxiliary tasks since the post which he occupied was not intended to cover temporary and occasional needs. The Council should have reclassified his contract in compliance with the obligations flowing from the Conditions of Employment.
48. Fourthly, the applicant argues that, by refusing to renew his contract as a member of the contract staff for auxiliary tasks on the ground that he did not appear in a reserve list for appointment as an official even though, in the lifetime of the contract, EPSO held only one single competition in the buildings sector, the Council infringed the principle that contracts should be performed in good faith.
49. The Council argues that several of the applicant’s pleas are inadmissible.
50. First of all, the pleas alleging infringement of the principles flowing from Directive 1999/70, infringement of the rules laying down minimum conditions for avoiding unfair dismissals of workers, the lack of legal basis, the breach of the duty to have regard for the welfare of staff and of the principle of sound administration were submitted in breach of Article 35(1)(d) and (e) of the Rules of Procedure. Those pleas are put forward without any relevant discussion which would permit the defendant to understand their scope and merits and to defend itself in consequence.
51. Secondly, the Council contends that the plea that the applicant could not be recruited under the provisions of Article 3b of the Conditions of Employment is inadmissible inasmuch as the applicant did not challenge the legal basis of his contract within three months of signing it. The contested decision is not a new fact which could set a new time-limit running in regard to the legal basis of the contract.
52. Thirdly, the Council contends that the plea alleging a breach of the principle that contracts should be performed in good faith was not raised in the complaint and is therefore inadmissible.
53. Fourthly, the plea alleging infringement of the rules laying down the conditions for avoiding unfair dismissals of workers is ineffective since the present dispute concerns the expiry of the applicant’s contract at the end of the period for which it was concluded and not a dismissal decision.
54. In the alternative, the Council argues that the action is unfounded.
55. In the first place, with regard to the plea alleging an inadequate statement of reasons, the Council considers that the decision not to renew the contract is not vitiated by such a defect. First, the applicant was indeed informed that his contract had been offered to him on an exceptional basis, for a period of 24 months, so as to permit him to take part in a possible subsequent competition held by EPSO. Secondly, the memorandum of 29 April 2009 did remind the applicant of that situation and that his employment would end on 30 September 2009. Finally, in the contested decision, it was stated that the authority empowered to conclude contracts of employment was required to fill the post which the applicant had occupied until then by appointing an official, since the post was on the list of the institution’s budgetary posts and was vacant. Since the applicant had not been successful in a competition, the Council could not continue its contractual relationship with him, bearing in mind, in addition, that the contract as a member of the contract staff for auxiliary tasks had been concluded on an exceptional basis in order to give him time to be successful in a competition.
56. Secondly, the Council considers that contested decision does not infringe the principles flowing from Directive 1999/70. That Directive is not addressed to the institutions but to the Member States and imposes no obligations on the institutions in their relations with their staff. In any event, the Directive does not prohibit the use of fixed-term contracts. In the present case, the first fixed-term contract concluded with the applicant was for the performance of specific tasks until the post could be filled by an official. The second contract was concluded on an exceptional basis in order to take account of the applicant’s personal situation.
57. Thirdly, the Council does not understand for what reasons a decision not to renew a contract for a fixed term of one year would infringe Article 3b of the Conditions of Employment. In addition, the applicant’s allegations that he has performed the same tasks and exercised the same responsibilities for 16 years under different statuses is incorrect inasmuch as the content and frequency of those tasks varied, as did the responsibilities that they entailed for the applicant.
58. Fourthly, the Council contends that the plea alleging a breach of the principle that contracts should be performed in good faith is factually inaccurate. The Council did not make extension of the applicant’s contract unlawfully subject to a condition that he be successful in a recruitment competition. On the contrary, the contract was offered to the applicant on an exceptional basis so that he might be recruited as an official. In addition, contrary to the applicant’s claim, two competitions corresponding to the applicant’s profile were held during the two-year life of his contract inasmuch as the selection board for those competitions treated his application as admissible.
Findings of the Tribunal
– The pleas formulated in general and abstract terms
59. The applicant claims, in general and abstract terms, on the one hand, that the contested decision infringes the principles flowing from Directive 1999/70, the rules laying down minimum conditions for avoiding unfair dismissals of workers, the duty to have regard for the welfare of staff and the principle of sound administration and, on the other hand, that the contested decision lacks a legal basis.
60. It must be recalled that, pursuant to Article 35(1)(e) of the Rules of Procedure, the application must state the pleas in law and the arguments of fact and law relied on. Those particulars must be sufficiently clear and precise to enable the defendant to prepare his defence and to enable the Tribunal to give judgment in the action without having to seek further information, if appropriate. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in 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.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (First Chamber)
hereby:
1. Dismisses Mr Gheysens’ action;
2. Orders Mr Gheysens to pay all the costs.