62016TJ0584
JUDGMENT OF THE GENERAL COURT (First Chamber)
24 April 2017 (
*1
)
‛Civil service — Contract staff for auxiliary tasks — Article 3b of the CEOS — Successive contracts of employment as a member of the contract staff — Fixed-term contracts — Decision not to renew — Misuse of powers — Request for assistance — Right to be heard — Non-contractual liability’
In Case T‑584/16,
HF, residing in Bousval (Belgium), represented by A. Tymen, lawyer,
applicant,
v
European Parliament, represented by L. Deneys and S. Alves, acting as Agents,
defendant,
ACTION under Article 270 TFEU for, first, annulment of the Parliament’s decision not to renew the applicant’s contract as a member of the contract staff for auxiliary tasks and, secondly, compensation for the harm allegedly suffered by the applicant arising essentially from that decision,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,
Registrar: E. Coulon,
gives the following
Judgment
Background to the dispute
1
The applicant, Ms HF, was employed by the European Parliament’s Authority empowered to conclude contracts of employment (‘the AECE’) through successive contracts from 6 January to 14 February 2003, 15 February to 31 March 2003, 1 April to 30 June 2003 and 1 to 31 July 2003, as a member of the staff for auxiliary tasks, an employment category provided for in the Conditions of Employment of Other Servants of the European Communities (‘the CEOS’), in the version thereof prior to 1 May 2004. The applicant was assigned to the Audiovisual Division, which has since become a unit (‘the Audiovisual Unit’) of the Media Directorate (‘the Media Directorate’) of the Directorate-General (DG) for Information and Public Relations, which has since become the Directorate-General (DG) for Communication (‘DG Communication’). In that role she performed the tasks of assistant in category B, group V, class 3.
2
From 1 August 2003 to 31 July 2004 she was employed by a company established in France and providing services to the Parliament as a production administrator in order to meet increased demand for services relating to production administration in the Audiovisual Unit. That contract was renewed by mutual agreement between the applicant and the service-providing company for the period from 1 August 2004 to 31 January 2005, then, under a contract of 31 January 2005, the applicant’s employment with that company was prolonged for an indeterminate period.
3
On 1 April 2005, however, the applicant ceased working for the Parliament on behalf of that company, as she was re-appointed directly by the AECE as a member of the contract staff, an employment category created by the CEOS in the version thereof in force as from 1 May 2004. She was then placed in class 9 of function group III in order to perform ‘executive tasks, drafting, accountancy and other equivalent technical tasks, performed under the supervision of officials or temporary staff’ in the Newsdesk Hotline part of the Audiovisual Unit (‘the Newsdesk Hotline’), for an initial duration of nine months, ending on 31 December 2005. That contract of employment, which was in the same class and the same functions, was extended from 1 January to 31 March 2006.
4
Under a contract of employment signed by the AECE and the applicant, on 24 and 25 January 2006 respectively, they agreed that the applicant would henceforth be employed, pursuant to Article 2(b) of the CEOS, from 1 February 2006 to 31 December 2007, as a member of the temporary staff subject to a six-month probationary period. By two successive supplemental agreements, that employment was extended from 1 January to 31 December 2008 and from 1 January 2009 to 31 January 2010 respectively, amounting to a total of three years. Under a contract signed by the AECE and the applicant on 26 and 27 January 2010 respectively, they agreed that the applicant’s contract would be renewed for a two-year period ending on 31 January 2012. That contract stipulated that, ‘under Article 8[(2)], of the CEOS, no subsequent renewal … [would be] authorised’.
5
By memorandum of 26 September 2011 from the Competitions and Selection Procedures Unit (‘the Competitions Unit’) of the Directorate-General (DG) for Personnel, the applicant was informed that she had not obtained a sufficiently high mark to be admitted to the following stage of the Parliament’s internal competition procedure for assistants’ posts (AST 5).
6
By a contract of 31 January 2012, the AECE and the applicant agreed that she would be employed from 1 February to 31 July 2012 as a member of the contract staff for auxiliary tasks pursuant to Article 3b of the CEOS, placed in step 1 of class 11 of function group III, to perform ‘executive tasks, drafting, accountancy and other equivalent technical tasks, … under the supervision of officials or temporary staff’. That employment was offered to the applicant following the unsuccessful publication of the notice of vacancy No 136691 for a post in the assistants’ function group (AST) ‘audiovisual producer’, for which priority was to be given to filling the post through the transfer of an official.
7
By successive supplemental agreements, that employment as a member of the contract staff for auxiliary tasks was extended from 1 August to 31 December 2012, from 1 January to 31 March 2013, from 1 April to 31 December 2013, from 1 January to 31 March 2014, from 1 April to 30 June 2014 and from 1 July to 31 December 2014. The reasons for those contract extensions were stated in identical terms, being the need for ‘necessary additional staff for the effective operation [of the] Newsdesk Hotline of the Audiovisual Unit’.
8
Beginning on 26 September 2014, the applicant was placed on sick leave and since that time has not resumed her employment activities at the Parliament.
9
By an email of 20 November 2014, the applicant asked one of her colleagues in the Audiovisual Unit if he had any news about the extension of her contract; that colleague replied on 27 November 2014, stating that he had just been informed that her contract would be extended until 31 December 2015.
10
In the meantime, by email of 26 November 2014, the Head of the Audiovisual Unit (‘the Head of Unit’) had been informed by a member of staff of DG Personnel that it had been confirmed by that DG that the contracts of three members of staff of his unit, including that of the applicant, would be extended until 31 December 2015, which information the Head of Unit passed on to the three members of staff concerned in an email dated the next day. In that email, he explained that ‘the three requests for extension of the members of the contract staff in 2015 [had] finally been accepted’, but that ‘[the Director-General of DG Personnel had], however, given a clear warning that for 2016 it [would] be much more complicated and that a drastic reduction in the numbers of contract staff [would] have to be expected’.
11
In that email of 27 November 2014, the Head of Unit stated that he considered it ‘very wise to renew [the] contracts [of the members of the contract staff] for the entire year [2015] and not to work any longer with periods of [three] or [six] months, which made things, from a professional and especially human standpoint, much more difficult’. In that same email, he further announced the imminent arrival in the unit of an official from the administrators’ function group (AD), following a competition in the audiovisual field, whose main task would consist in the coordination of part of the production and responsibility for managing the Promotion Strategy, including coordination of the Newsdesk Hotline and Accreditations. The three members of staff concerned, including the applicant, were further informed that their responsibilities would be adapted to bring them into line with that new organisation within the unit, the objective of which was to serve better the priorities of the Media Directorate and DG Communication and the changes in working methods requested by the Secretary-General of the Parliament (‘the Secretary-General’).
12
By supplemental agreement signed by the AECE on 9 December 2014, the applicant’s contract of employment as a member of the contract staff for auxiliary tasks was to be extended with effect from 1 January 2015 until 31 March 2015. In that regard, by email of 10 December 2014 the applicant was informed that ‘further to the extension of [her] contract which [had] just been notified to [her] ending on 31 [March] 2015, … the request that [had been] addressed to DG [Personnel] in fact concern[ed] a one-year extension [of her contract] until 31 [December] 2015’, that ‘DG [Personnel] [had] however examined [the applicant’s] file before considering the request for renewal’ and that ‘it [had] emerged in the course thereof that she [had not been] successful in a CAST [selection procedure] and that, when that condition [was] not fulfilled, a contract [could] be granted only where the Selection Board of members of the contract staff gave a favourable opinion’. It was explained in that email that DG Personnel had granted a three-month extension for the applicant’s contract in order to regularise the situation in line with that condition and the applicant was invited therein to complete an application form and provide a set of documents in due time so that her file could still be examined by the Selection Board of members of the contract staff (‘the Selection Board’) at its January 2015 meeting and, in the event of its giving a favourable opinion, her contract could be extended until 31 December 2015.
13
On 11 December 2014, the applicant countersigned the supplemental agreement dated 9 December 2014 and providing for the extension of her employment until 31 March 2015. By letter also dated 11 December 2014, addressed to the Secretary-General, with the Chairman of the Advisory Committee on Harassment and its Prevention at the Workplace (‘the Advisory Committee’), the President of the Parliament and the Director-General of DG Personnel in copy, the applicant, acting pursuant to Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), also submitted a request for assistance within the meaning of Article 24 of the Staff Regulations (‘the request for assistance’), those articles being applicable by analogy to members of the contract staff under Articles 92 and 117 respectively of the CEOS. In support of that request, she claimed that she had been the victim of psychological harassment by the head of the Audiovisual Unit, which harassment took the form of behavior and spoken and written language by the Head of Unit, in particular during unit meetings. She requested that urgent measures be adopted in order to protect her immediately from her alleged harasser and that an administrative inquiry be opened by the AECE in order to establish the reality of the facts.
14
By letter of 13 January 2015, the Head of the Human Resources Unit of the Resources Directorate of DG Personnel, who was also the Chairman of the Advisory Committee, acknowledged receipt of the applicant’s request for assistance and informed her that the request had been forwarded to the Director-General of DG Personnel, who would rule on it in his capacity as AECE within four months, upon the expiry of which, if applicable, an implied decision refusing that request for assistance could be deemed to have been taken and subsequently be the subject of a complaint pursuant to Article 90(2) of the Staff Regulations.
15
By letter of 23 January 2015, the applicant’s legal advisor informed the Director-General of DG Personnel inter alia that the Head of Unit had been informed of the submission of the request for assistance and of the opening of an administrative inquiry by the AECE. That information was contained in the minutes of a meeting of the Audiovisual Unit, contributing to the dissemination of certain information not only to the applicant’s colleagues, but also to certain persons external to the institution. During that meeting, the Head of Unit also announced that the applicant would not be returning to the Audiovisual Unit and that, consequently, a restructuring of the Newsdesk Hotline part of the Audiovisual Unit would have to be undertaken.
16
By email of 26 January 2015, an official of the Contract Staff and Accredited Parliamentary Assistants Recruitment Unit (‘the Contract Staff Recruitment Unit’) of the Directorate for Human Resources Development (‘the HR Directorate’) of DG Personnel of the Secretariat General of the Parliament, sent the applicant a ‘memorandum confirming [her] reassignment as from 21 [January] 2015’. That memorandum, also dated 26 January 2015, stated that the applicant would be assigned, with retroactive effect to 21 January 2015, to the European Union Visitors Programme (EUVP) Unit (‘the Visitors Programme Unit’) of the Directorate for Relations with the Citizens of DG Communication and that, apart from the change in assignment, her contract of employment was otherwise unaffected (‘the reassignment decision’).
17
By letter of 4 February 2015, the Director-General of DG Personnel replied to the letter from the applicant’s legal advisor of 23 January 2015 by stating that a measure keeping the applicant away from the Head of the Audiovisual Unit had been adopted, consisting in her being reassigned to the Visitors Programme Unit. The Director-General of DG Personnel further informed the applicant that, following an in-depth examination of her file and in response to her request that an administrative inquiry be opened, it had been decided to forward that file to the Advisory Committee, whose Chairman would keep her informed of any subsequent developments. The Director-General of DG Personnel considered that, in so doing, he had addressed the request for assistance which, within the scope of his duties, brought about the ‘closure of [the applicant’s] file’ (‘the decision of 4 February 2015’).
18
By letter of 12 February 2015, the applicant’s legal advisor requested the Director-General of DG Personnel to specify the scope of the measure announced by him in his decision of 4 February 2015 and, in particular, to state whether the distancing measure adopted respect of the applicant was temporary in nature.
19
In a form entitled ‘Request for member of contract staff — [Renewal]’, completed and signed by the Director-General of DG Communication on 2 March 2015, with a view to its being forwarded to DG Personnel at least three weeks before the expiry of the applicant’s contract, it was stated that the Director-General of DG Communication was seeking an extension of the applicant’s contract for a two-month period from 1 April to 31 May 2015, and that that extension was justified by the need for additional staff in the Visitors Programme Unit ‘in order to deal with the increased workload in connection with the celebration of the 40 years of existence of the [Visitors Programme Unit], for which a whole range of events [were] going to be organised by the end of May [2015]’. It was also stated in that context that that proposal was ‘further to the approval by the Selection Board [at its meeting] of 25 [February] 2015, before which the proposal had been put at the request of [the Contract Staff Recruitment Unit] of [the HR Directorate] of DG Personnel [following] an inspection of [the applicant’s] file as a [member of the contract staff for auxiliary tasks], whose contract [as a member of the contract staff had succeeded] a contract [as a member of the temporary staff ]’, but that ‘she [had] not been successful on the CAST list or the underlying Selection Board procedure’.
20
By memorandum also dated 2 March 2015, originating from the Head of the Competitions and Selection Procedures Unit of the HR Directorate, the applicant was informed that her name had been placed on the reserve list of candidates for employment as a member of the contract staff of function group III, which was valid until 29 February 2016.
21
By letter of 4 March 2015, the Director-General of DG Personnel reiterated his view that, by his decision to forward the request for assistance to the Advisory Committee, he had ‘closed the file as regard[ed] the scope of his duties’. He further stated that the distancing measure adopted in respect of the applicant removing her from the Audiovisual Unit and placing her with the Visitors Programme Unit had also been put in place both at her request, as put forward in the request for assistance, and ‘in the interest of the service in order to address increasing needs within the [Visitors Programme Unit]’ and that the reassignment would continue until the end of her contract.
22
By email of 9 March 2015, the applicant was summoned by the Advisory Committee to present her case on 25 March 2015.
23
By a supplemental agreement signed by the AECE and the applicant on 27 March 2015, it was agreed that, effective 1 April 2015, the ‘contract of employment as a member of the contract staff for auxiliary tasks effective 1 [February] 2012’ would be extended until 31 May 2015.
24
By letter dated 24 April 2015, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations against: first, the reassignment decision in so far as, by that decision, the AECE reassigned her permanently and not temporarily to the Visitors Programme Unit; secondly, the decision of 4 February 2015, by which the Director-General of DG Personnel ruled on the request for assistance by considering the case to be closed ‘within the scope of his duties’; and, thirdly, a decision allegedly taken on 11 April 2015, by which the AECE impliedly refused the request for assistance.
25
On 29 April 2015, the notice of vacancy bearing the reference AST/157554 was published concerning a vacant post for a ‘Public relations — audiovisual’ assistant in the Audiovisual Unit, the description for which corresponded in essence to the functions performed by the applicant as a member of the contract staff for auxiliary tasks within that unit. That post was to be filled in accordance with Article 29(1)(a) of the Staff Regulations, that is to say, through the transfer or promotion of an official in active service. On 12 May 2015, notice of vacancy No 11051 was published concerning another vacant assistant post, that of press officer in the Audiovisual Unit.
26
By application lodged at the Registry of the Civil Service Tribunal of the European Union on 17 November 2015 and registered under number F‑142/15, the applicant brought an action pursuant to Article 270 TFEU, seeking annulment of an implied decision of the AECE, which in her submission occurred on 11 April 2015, by which the AECE rejected her request for assistance of 11 December 2014 and asking to have the Parliament ordered to pay her EUR 50000 by way of compensation for non-material harm allegedly suffered by her. That case gave rise to the judgment of 24 April 2017, HF v Parliament (T‑570/16).
27
By email of 22 May 2015, with the Secretary-General in copy, the applicant requested renewal of her contract of employment (‘the contract renewal request’) pursuant to Article 90(1) of the Staff Regulations.
28
In that regard, she observed in the contract renewal request that whilst the Head of Unit had informed her by email of 26 November 2014 of the renewal of her contract of employment until 31 December 2015, the AECE had decided to extend her contract by only three months, then two months, from 1 January to 31 May 2015. Next, she explained that, under Article 88(b) of the CEOS, it was still possible for the AECE to renew her contract of employment until 31 January 2018, giving a total duration of two years and eight months. Lastly, the applicant emphasised that, although she was on sick leave, first of all, the needs of the Visitors Programme Unit were increasing, which justified ‘entirely the renewal of [her] contract’ and, secondly, that the Audiovisual Unit also needed additional staff because the Newsdesk Hotline at that point had only two active staff members left. More generally, the applicant took the view that the Media Directorate of DG Communication also needed fresh human resources.
29
By email dated 28 May 2015 sent by a member of staff of the Personnel Unit of the Resources Directorate of DG Communication on behalf of the Head of that unit, the applicant was informed that DG Communication did not intend to renew her employment as a member of the contract staff for auxiliary tasks (‘the decision of 28 May 2015’). That email continued:
‘As I explained to you during our discussion on 4 February 2015, this unit needed additional staff in order to prepare for a major event, the 40th anniversary of the EUVP, which [had] been scheduled for 26 May 2015. Given that, once that event had been held, there was no longer any justification for additional staff within the [Visitors Programme Unit], no request to extend your contract was made to the competent authority (AECE).’
30
On 31 May 2015, the applicant sent an email at 18.44 to the Parliament department responsible for administrative matters, in which she stated that she had been informed that her contract as a member of the contract staff would not be renewed and would end that same day, 31 May 2015, and asking that department which steps she would need to take in order to receive the unemployment benefit provided for under the CEOS. On the same day, the applicant’s access to her work email account was, according to her testimony, deactivated. However, she provided an email dated 1 June 2015 and sent at 10.26 by the Office for the Administration and Payment of Individual Entitlements (PMO) to her Parliament work email address.
31
By registered letter addressed to the applicant on 14 July 2015 by the Head of the Contract Staff Recruitment Unit of the HR Directorate of DG Personnel, the applicant was reminded that, further to her email of 22 May 2015, in which she sought renewal of her contract of employment as a member of the contract staff for auxiliary tasks, a ‘clear and reasoned response’ had been provided to her by the Head of the Personnel Unit of the Resources Directorate of DG Communication, in the email of 28 May 2015. That letter of 14 July 2015 explained that the Visitors Programme Unit, to which the applicant had been assigned since 21 January 2015, ‘needed additional staff in order to prepare for a major event, the 40th anniversary of the EUVP, which was scheduled for 26 May 2015, and that that was why [her] contract [had] been renewed within that unit for two months only, from 1 April to 31 May 2015’.
32
The letter of 14 July 2015 also stated that, at the end of that period, DG Communication no longer required additional staff for the Visitors Programme Unit, so that it could no longer justify a further extension of the applicant’s contract and that, therefore, it had not made such a request to DG Personnel. In that regard, speaking under delegated powers on behalf of the AECE, the Head of the Contract Staff Recruitment Unit informed the applicant that he could only confirm the reasons given by the Head of the Personnel Unit of the Resources Directorate of DG Communication, as he had ‘no objective reason to question the needs identified or not by the operational services [and that] the non-transmission to its department of a request to renew the contract [was] the usual method by which Directorates-General communicated [to it] their wish to terminate their contractual relationship with the member of staff at the end of their contract’. Lastly, he drew the applicant’s attention to the possibility available to her under Article 90(2) of the Staff Regulations, to lodge a complaint ‘against the non-renewal of her contract on 31 [May] 2015 within three months of the end of that contract’.
33
By letter dated 22 July 2015, the applicant lodged a complaint pursuant to Article 90(2) of the Staff Regulations against the decision of 28 May 2015, as confirmed by letter of 14 July 2015. In support of her complaint, she alleged misuse of powers, infringement of Article 88(b) of the CEOS, infringement of Article 12a(2) of the Staff Regulations and also infringement of the right to be heard, as laid down in Article 41(1) of the Charter of Fundamental Rights of the European Union, infringement of the duty to have regard for the welfare of officials, infringement of Article 30 of the Charter of Fundamental Rights, error in reasoning and manifest error of assessment.
34
In that regard, the applicant stated inter alia that the requirements of the Audiovisual Unit, to which she had been assigned before the distancing measure, were real and justified the renewal of her contract of employment. By way of proof she referred to the fact that a notice of vacancy for a post in the AST function group had been published on 29 April 2015. In her submission, the description of the functions of that post corresponded to what had been her duties for 12 years in that unit, which confirmed that her services were still needed within that unit.
35
The applicant also challenged the grounds put forward by a member of staff of the Resources Directorate of DG Communication in support of the decision of 28 May 2015, to the effect that the requirements of the Visitors Programme Unit, to which she had been assigned temporarily by way of distancing measure to keep her away from her alleged harasser, had been time-specific in nature and that, once the 40th anniversary celebrations were over, the unit no longer required her services. In that regard, the applicant stated that at no time had the AECE claimed to justify her reassignment to the Visitors Programme Unit with a need for additional staff for that event or for that event only. On the contrary, the AECE stated in the decision of 4 February 2015 that the unit’s requirements were on the rise. Then, suddenly, in the letter of 14 July 2015, the AECE changed its reasons for the applicant’s reassignment to that unit and, therefore, the grounds for its decision not to renew her contract. In any event, in the applicant’s submission, she had, contrary to Article 12a(2) of the Staff Regulations, suffered the consequences of having made her request for assistance, because if she had not been reassigned to a unit with only time-specific requirements but had instead stayed in the Audiovisual Unit, the AECE would have decided to renew her contract within the limits laid down in Article 88(b) of the CEOS, in this case until 31 January 2018.
36
By letter of 20 August 2015, the Secretary-General, in his capacity as AECE, decided to uphold in part the complaint lodged by the applicant on 24 April 2015. The Secretary-General observed that the applicant’s reassignment to the Visitors Programme Unit had necessarily been temporary in nature and had to be maintained throughout the period of the administrative inquiry, which was still ongoing, whilst essentially dismissing the arguments put forward by the applicant challenging the merits or details of the distancing measure (‘the decision of 20 August 2015’).
37
However, in the decision of 20 August 2015, the Secretary-General decided to amend the decision of 4 February 2015 in so far as, in that decision, the Director-General of DG Personnel had found, incorrectly, that the AECE had closed the procedure relating to the request for assistance. In that regard, he stated that that request for assistance would give rise subsequently to a definitive decision of the Director-General of DG Personnel and that, consequently, contrary to the applicant’s assertions, no implied decision rejecting the request for assistance had been taken on 11 April 2015, with the result that the complaint was inadmissible on this point.
38
By letter of 10 September 2015, the applicant supplemented her complaint in the light of the content of the letter of 20 August 2015, which she considered to be a new fact. Thus, in response to the decision not to renew her contract of employment, she alleged manifest error of assessment by the AECE as to the identification of the department to which she had to be deemed to have been assigned and, therefore, manifest error of assessment by the AECE as to the requirements to be analysed in order to assess, in the light of the interest of the service, whether or not it was worthwhile to renew her contract of employment. In the applicant’s submission, given the temporary nature of her reassignment by way of distancing measure to the Visitors Programme Unit, that unit’s requirements could not be taken into account by the AECE with a view to adopting the decision not to renew her contract of employment. The AECE ought to have taken account solely of the requirements of the unit to which she had been originally assigned, namely the Audiovisual Unit or, more generally, the Media Directorate.
39
By decision of 7 December 2015 (‘the decision ruling on the complaint’), the Secretary-General, in his capacity as AECE, ruled on the applicant’s complaint of 22 July 2015, as supplemented on 10 September 2015, considering inter alia that the act adversely affecting the applicant in the present case was an implied decision by the AECE not to renew the applicant’s contract.
40
Whilst upholding the well-foundedness of the decision not to renew the applicant’s contract, the Secretary-General, in the decision ruling on the complaint, acknowledged that the applicant had been informed by her superiors that her contract of employment would be renewed until 31 December 2015. In those circumstances, he decided, also in the light of the applicant’s career in the institution, to grant her an amount of EUR 22000 corresponding to the remuneration she would have received had she remained in active employment until that date.
41
That being the case, the Secretary-General informed the applicant that the AECE was not in a position to offer her another post beyond 31 December 2015. In that regard, he observed that the possibility of employing the applicant in the Audiovisual Unit was no longer an option, as the decision had been taken in the meantime to entrust an official with the tasks for which she had initially been hired and that, given the applicant’s specific profile and duties she had performed, it was not possible for DG Communication to offer her other employment corresponding to her qualifications beyond 31 December 2015.
42
By letter of 8 December 2015, the Director-General of DG Personnel informed the applicant of his intention to consider her request for assistance unfounded further to, inter alia, the Advisory Committee’s hearing the submissions of the Head of Unit and of 14 other officials and servants of the Audiovisual Unit.
43
In a letter of 18 February 2016, the applicant’s legal advisor requested clarification from the Secretary-General concerning the offer of ‘compensation in the amount of EUR 22000, corresponding to the salary [the applicant] would have received between 1 June 2015 and 31 December 2015’, inter alia on the question whether that amount affected her entitlement to receive her full unemployment benefit provided for in the CEOS.
44
On 16 April 2016, the amount of EUR 22000 was transferred by the AECE to the applicant’s bank account.
45
By decision of 3 June 2016, the AECE rejected the request for assistance, against which decision the applicant stated, in the reply, that she intended to lodge a complaint.
Procedure and forms of order sought
46
By application lodged at the Registry of the Civil Service Tribunal on 14 March 2016, the applicant brought the present action, initially registered under number F‑14/16.
47
Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), the present case was transferred to the General Court as it stood on 31 August 2016 and must henceforth be dealt with in accordance with the Rules of Procedure of the General Court. The case was accordingly registered under number T‑584/16 and assigned to the First Chamber.
48
Following the second exchange of pleadings that had been authorised by the Civil Service Tribunal under Article 55 of its Rules of Procedure, the written phase of the procedure was closed pursuant to the Rules of Procedure of the General Court.
49
As the parties did not request that a hearing be held pursuant to Article 106(1) of the Rules of Procedure, the General Court considered that it had sufficient material available to it from the case file and decided to give judgment in the case without holding an oral hearing.
50
The applicant claims that the Court should:
—
annul the decision of 28 May 2015;
—
in so far as is necessary, annul the implied decision of 31 May 2015 by which the AECE refused to renew her contract and, in so far as is necessary, annul the decision ruling on the complaint;
—
order the Parliament to pay damages, to be fixed ex aequo et bono at EUR 115000, by way of compensation for the non-material damage allegedly suffered;
—
order the Parliament to pay the costs.
51
The Parliament contends that the Court should:
—
dismiss the application as unfounded;
—
order the applicant to pay the costs.
Law
The subject matter of the action and the regular conduct of the pre-litigation procedure
52
By her first three heads of claim, the applicant refers in turn to: the decision of 28 May 2015; an implied decision by the AECE, which she states was taken on the date her contract ended, on 31 May 2015, by which it decided not to renew that contract; and the decision ruling on the complaint.
The identification of the initial contested decision
53
As a preliminary point, it should be borne in mind that, in a situation in which a contract for a member of the temporary staff may be renewed, a decision by the AECE not to renew that contract, adopted following a procedure specifically designed for that purpose (see, to that effect, judgment of 1 March 2005, Smit v Europol, T‑143/03, EU:T:2005:71, paragraphs 28 to 31) or a response at the request of the person concerned submitted pursuant to Article 90(1) of the Staff Regulations as a person covered by the Staff Regulations (see, to that effect, judgment of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 38) constitutes an act adversely affecting that person, distinct from the contract in question, which may be challenged through a complaint or an action pursuant to Article 270 TFEU, within the time limits under the Staff Regulations (judgment of 15 October 2008, Potamianos v Commission, T‑160/04, EU:T:2008:438, paragraph 21, upheld on appeal by order of 23 October 2009, Commission v Potamianos and Potamianos v Commission, C‑561/08 P and C‑4/09 P, EU:C:2009:656, paragraph 46).
54
In the present case, as stated by the applicant in the contract renewal request, that request must be considered to be a request addressed to the AECE pursuant to Article 90(1) of the Staff Regulations. In that request, the applicant set out the reasons why she considered the renewal of her contract beyond its term, that is to say, 31 May 2015, to be in her interest and that of the service.
55
In that regard, it is noteworthy that although the contract renewal request was sent with the Secretary-General in copy, it led to a response in the form of the decision of 28 May 2015 which, formally speaking, was not given by the party authorised to act in that particular sphere on behalf of the AECE. The response in fact came from the Head of the Personnel Unit of the Resources Directorate of DG Communication.
56
However, in the light of the content of the letter of 14 July 2015, originating from the Head of the Contract Staff Recruitment Unit of the HR Directorate of DG Personnel, acting ‘by delegation’ in his capacity as AECE, it would seem that, when he gave the response in his email of 28 May 2015, the Head of the Personnel Unit of the Resources Directorate of DG Communication acted with the agreement of the AECE and, in any event, given the position of the official in question, the applicant could reasonably consider that that response of 28 May 2015 to the contract renewal request originated from the AECE and, therefore, constituted a decision of the AECE (see, to that effect, judgments of 19 January 1984, Erdini v Council, 65/83, EU:C:1984:24, paragraph 7; of 30 June 1993, Devillez and Others v Parliament, T‑46/90, EU:T:1993:54, paragraph 13; and of 28 June 2006, Le Maire v Commission, F‑27/05, EU:F:2006:56, paragraph 40).
57
Therefore, the decision of 28 May 2015 constituted the AECE’s decision not to renew the applicant’s contract, an act adversely affecting her and against which she could lodge a complaint and put forward her first head of claim seeking annulment of that decision.
58
The second head of claim seeking annulment, however, is directed at an implied decision having the same scope which allegedly was taken on the date the applicant’s contract ended, namely 31 May 2015. That decision is the one referred to by the Secretary-General in the decision ruling on the complaint in finding that the question of the lawfulness of such an implied decision had been put before him at the pre-litigation stage.
59
In that regard, as the AECE is under no obligation under the Staff Regulations to avail itself of the option, provided for in the CEOS, to extend the contract of employment of a member of staff or to inform the relevant staff member within any fixed period of its intentions in that regard, no implied decision waiving that option can be attributed to the AECE on the date of expiry of the contract. This is, moreover, why the European Union Courts have held that a letter that merely reminds a staff member about the provisions of their contract relating to the date of its expiry and containing no new factor by reference to those provisions is not an act adversely affecting the staff member (see, to that effect, judgments of 9 July 1987, Castagnoli v Commission, 329/85, EU:C:1987:352, paragraphs 10 and 11; of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraphs 45 to 47; and order of 2 February 2001, Vakalopoulou v Commission, T‑97/00, EU:T:2001:38, paragraph 14).
60
Thus, in order for there to be a decision of the AECE on the renewal of a contract, it must have been the result of a review by the AECE of the interest of the service and that of the staff member concerned and the AECE must have made a fresh assessment by reference to the terms of the initial contract containing at the outset the date on which the contract is to end (see, to that effect, judgment of 23 October 2013, Solberg v EMCDDA, F‑124/12, EU:F:2013:157, paragraphs 18, 20 and 34).
61
Such a decision was taken expressly on 28 May 2015 in response to the contract renewal request. Thus, contrary to what the Secretary-General held in the decision ruling on the complaint, the AECE did not take any implied decision on the renewal of her contract beyond its term subsequently to the decision of 28 May 2015, although this does explain why the applicant has put forward heads of claim seeking annulment of that act.
62
Accordingly, the second head of claim seeking annulment is devoid of purpose and must therefore be dismissed as inadmissible.
63
It follows from the foregoing that the initial act of the AECE, annulment of which is sought by the applicant, is in the present case the decision of 28 May 2015 contained in the email of 28 May 2015, as confirmed by the decision of 14 July 2015 (together ‘the initial contested decision’).
The proper conduct of the pre-litigation procedure
64
According to settled case-law, the admissibility of an action brought before the Court under Article 270 TFEU and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner and upon the prescribed time limits for that procedure being complied with (judgments of 6 July 2004, Huygens v Commission, T‑281/01, EU:T:2004:207, paragraph 125; of 9 January 2007, Van Neyghem v Committee of the Regions, T‑288/04, EU:T:2007:1, paragraph 53; and order of 14 January 2014, Lebedef v Commission, F‑60/13, EU:F:2014:6, paragraph 37).
65
In that regard, it should be borne in mind that the time limits for lodging complaints and bringing actions referred to in Articles 90 and 91 of the Staff Regulations are a matter of public policy and cannot be left to either the discretion of the parties or the discretion of the court, whose responsibility it is to ascertain, of its own motion, if they have been complied with. Those time limits meet both the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (judgment of 7 July 1971, Müllers v ESC, 79/70, EU:C:1971:79, paragraph 18, and order of 22 April 2015, ED v ENISA, F‑105/14, EU:F:2015:33, paragraph 28).
66
Thus, the fact that, in its decision ruling on the administrative complaint, an institution or body, as in the present case, replied to the arguments put forward on their merits without examining the possibility that those arguments may have been put forward in a claim that was out of time and, therefore, inadmissible or the fact that it expressly stated to the person concerned that they had the option of challenging the decision through litigation have no bearing on the Court’s assessment of the admissibility of an action brought subsequently against that decision. Such circumstances cannot derogate from the system of mandatory time limits established by Articles 90 and 91 of the Staff Regulations and still less exempt the Court from its obligation to verify that the time limits laid down in the Staff Regulations have been complied with (see, to that effect, judgment of 18 March 1997, Rasmussen v Commission, T‑35/96, EU:T:1997:36, paragraph 30; orders of 15 January 2009, Braun-Neumann v Parliament, T‑306/08 P, EU:T:2009:6, paragraph 37; and of 20 March 2014, Michel v Commission, F‑44/13, EU:F:2014:40, paragraph 68).
67
In the present case, the Court finds that on 22 July 2015 the applicant lodged her complaint against the initial contested decision within the three-months required under the Staff Regulations. However, she purported to supplement that complaint by putting forward, in a letter of 10 September 2015 described as a supplementary complaint, new arguments reflecting the letter of 20 August 2015 by which the Secretary-General had in the meantime first, ruled on the other complaint lodged by her on 24 April 2015 against the reassignment decision and secondly, amended the decision of 4 February 2015 in so far as, in that latter decision, the Director-General had considered, incorrectly, that the procedure relating to the request for assistance to be closed.
68
In that regard, the letter of 14 July 2015, by which the AECE upheld the decision of 28 May 2015, did not have the effect of reopening the three-month time period for lodging the complaint against that latter decision, even though it did give the AECE the opportunity to provide additional reasons for that decision (see, to that effect, order of 22 April 2015, ED v ENISA, F‑105/14, EU:F:2015:33, paragraphs 38 to 42). However, as observed by the applicant, it must be borne in mind that the letter of 20 August 2015 constituted a new fact and that, in any event, in the decision ruling on the complaint, which was adopted after the expiry of the four-month time limit for reply under the Staff Regulations but within the time allowed for lodging an action under Article 270 TFEU, the AECE, in the scenario referred to in the second indent of Article 91(3) of the Staff Regulations, did take account of the supplementary arguments put forward by the applicant in the letter of 10 September 2015.
69
The conclusion is, therefore, that the pre-litigation procedure was conducted properly.
The claim seeking annulment of the decision ruling on the complaint
70
As regards the claim seeking annulment of the decision ruling on the complaint, it should be borne in mind that, according to settled case-law applicable to legal matters involving the EU civil service, the administrative complaint such as referred to in Article 90(2) of the Staff Regulations and its rejection, whether express or implied, thus constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted (judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 7 and 8), except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (judgment of 25 October 2006, Staboli v Commission, T‑281/04, EU:T:2006:334, paragraph 26).
71
An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure or will even regard it as an act adversely affecting the applicant replacing the contested measure (see judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 32 and the case-law cited).
72
Since, under the system laid down in the Staff Regulations or the CEOS, the person concerned must submit a complaint against the decision which he is contesting and then appeal against the decision rejecting his complaint, the Court of Justice has held that the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations (judgment of 26 January 1989, Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraph 7). However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraphs 8 and 9).
73
In the present case, it is apparent from the wording of the decision ruling on the complaint that the Secretary-General, in addition to confirming the well-foundedness of the initial contested decision, decided to award the applicant on an ex gratia basis the amount of EUR 22000 in recognition of her having acquired a legitimate expectation from the assurances given to her by her managers in December 2014 that her contract would soon be renewed until 31 December 2015. Moreover, the decision ruling on the complaint also states, with decision-making content autonomous from the initial contested decision, the reasons why the AECE was not in a position on 7 December 2015 to offer the applicant employment extending beyond 31 December 2015.
74
In those circumstances, it is appropriate to rule jointly on, first, the claim seeking annulment of the initial contested decision inasmuch as it refuses to renew the applicant’s contract after 31 May 2015, in the light of the reasons set out in the decision ruling on the complaint and, secondly, the claim seeking annulment of that latter decision inasmuch as the AECE decided therein not to extend the applicant’s contract beyond 31 December 2015.
The plea of inadmissibility put forward by the Parliament
75
In the statement in defence, the Parliament submits that the applicant has not demonstrated that she has locus standi to bring an action against the initial contested decision on the ground that the applicant had obtained satisfaction as regards her contract renewal request in the pre-litigation procedure, as she received from the AECE not only the unemployment benefit provided for under the CEOS but also the amount of EUR 22000 corresponding to the salary she would have received had her contract been extended from 1 April to 31 December 2015. The Parliament goes on to state that annulment by the Court of the initial contested decision would not in itself have the effect of reintegrating the applicant in her post in the Parliament.
76
In that regard, according to settled case-law, a claim for annulment is not admissible unless the applicant has an interest in seeing the contested measure annulled. In order for such an interest to be present, the annulment of the measure must of itself be capable of having legal consequences or, to put it differently, the action must be liable, if successful, to procure an advantage for the party who has brought it (see order of 22 April 2015, ED v ENISA, F‑105/14, EU:F:2015:33, paragraph 20 and the case-law cited).
77
As correctly observed by the applicant, in the contract renewal request she had sought an extension of her contract beyond 31 May 2015, without referring only to an extension running until 31 December 2015. In that regard, she had even stated more specifically that, in her view, her contract of employment could be extended until 31 January 2018.
78
Thus, irrespective of the fact that she received an amount of EUR 22000 by way of, inter alia but not solely, compensation for remuneration she would have received had she remained in her post until 31 December 2015, the applicant retains locus standi, if only because in the decision ruling on the complaint the AECE stated that it was not in a position to offer her a contract of employment beyond 31 December 2015.
79
The Parliament’s argument that, in the event of annulment of the initial contested decision, the applicant will still not be reintegrated into her post, does not establish that the applicant lacks locus standi to challenge the initial contested decision and the decision ruling on the complaint. According to settled case-law, in order to comply with the obligation laid down in Article 266 TFEU, it is for the institution which adopted the act annulled by the EU judicature to determine the measures required to implement the judgment annulling the act in the exercise of the discretion which it has for that purpose, complying with both the operative part and the grounds of the judgment which it is required to implement and with the provisions of EU law applicable (see, to that effect, judgments of 9 August 1994, Parliament v Meskens, C‑412/92 P, EU:C:1994:308, paragraphs 28 and 30; of 8 October 1992, Meskens v Parliament, T‑84/91, EU:T:1992:103, paragraph 80; and of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 82).
80
Contrary to the Parliament’s assertions, the applicant did not formally ask to be reintegrated into her previous post. Moreover and in any event, should the initial contested decision and the decision ruling on the complaint be annulled, the AECE will not necessarily be bound to reintegrate the applicant by way of measure implementing the Court’s judgment in this case.
81
In such a scenario, it is solely for the institution, acting pursuant to Article 266 TFEU, to identify the measures required, which could include the reintegration of the applicant in some department of the Parliament or the confirmation, on other grounds, of the decision not to renew her contract beyond 31 December 2015 or the grant of equitable financial compensation to the applicant under a possible out-of-court settlement (see, to that effect, judgment of 5 February 2016, GV v EEAS, F‑137/14, EU:F:2016:14, paragraphs 91 to 93 and the case-law cited).
82
Consequently, the plea of inadmissibility put forward by the Parliament must be rejected.
The claim seeking annulment of the initial contested decision and of the decision ruling on the complaint
83
The applicant puts forward in essence four pleas in law in support of her claim seeking annulment of the initial contested decision and of the decision ruling on the complaint:
—
first, misuse of powers and infringement of Article 88(b) of the CEOS, Article 12a(2) of the Staff Regulations and Article 41(1) of the Charter of Fundamental Rights;
—
secondly, infringement of Article 30 of the Charter of Fundamental Rights;
—
thirdly, manifest error of assessment and infringement of the duty to have regard for the welfare of officials;
—
fourthly, infringement of Article 41(2) of the Charter of Fundamental Rights, the obligation to state reasons, the rights of the defence and the right to be heard.
The first plea in law
84
In support of her first plea, the applicant submits that, given the contradictory reasons relied on by the AECE in the initial contested decision and in the decision ruling on the complaint in support of its decision not to renew her contract of employment, the AECE engaged in a misuse of powers. The real reasons for the decision no longer to make use of her services, after more than 13 years of direct or indirect collaboration on the Newsdesk Hotline of the Audiovisual Unit, was the fact that the applicant made the request for assistance. In her submission, the initial contested decision is a retaliatory measure against her.
85
By way of proof she points to the fact that, whilst the AECE had systematically renewed her contracts of employment since 2005 and she had been told in December 2014 that her contract would be renewed until 31 December 2015, the AECE decided, by way of distancing measure, to reassign her to the Visitors Programme Unit for a shortened period of three months, then for a two-month period. Yet even though she had been told on 4 March 2015 that that unit’s requirements were increasing, ultimately the AECE, in order to justify its final decision not to renew her contract, pretended that the unit in fact had only time-specific requirements for additional staff in order to organise its 40th anniversary and that, subsequently, it no longer had such requirements. The applicant claims, however, that she was not aware that that time-specific event had been the reason for the last renewal, for a two-month period only, of her contract of employment as a member of the contract staff for auxiliary tasks.
86
Moreover, for the purposes of the reassignment decision, the relevant Head of Unit did not consult the Director of the Media Directorate about the state of that directorate’s requirements in the light of the applicant’s skills.
87
The applicant also questions DG Communication’s decision to entrust an official with what had been her tasks, which could be explained by the AECE’s deliberate choice to ‘get rid of [her]’.
88
Ultimately, the initial contested decision and the decision ruling on the complaint were not adopted in the interest of the service and the applicant’s interests were not taken into account or not taken sufficiently into account in the run-up to their being adopted which, in her submission, infringed her right under Article 41(1) of the Charter of Fundamental Rights to have her case handled fairly and impartially. Moreover, since, in the applicant’s submission, those decisions were in reality retaliatory measures by the AECE in response to her making the request for assistance, they were taken contrary to Article 12a(2) of the Staff Regulations. Moreover, since under Article 88(b) of the CEOS AECE had the option of extending the applicant’s contract until 31 January 2018, the AECE’s decision not to avail itself of that option in her case also infringed that provision.
89
The Parliament contends that the first plea must be dismissed as unfounded, arguing that there is nothing to support the applicant’s claim that the decision not to renew her contract was intended to harm her or was motivated by a retaliatory intention in response to her making the request for assistance. The complaint relating to disregard of Article 88 of the CEOS which, in the applicant’s submission, allowed for her contract to be renewed until 31 January 2018, is ineffective in the light of the case-law following inter alia from the judgment of 21 May 2014, Commission v Macchia (T‑368/12 P, EU:T:2014:266, paragraph 51).
90
The Parliament submits that, although the proposal to renew her contract for a three-month period from 1 January to 31 March 2015 was put forward on the initiative of the Head of Unit, whom she accuses of psychological harassment, the proposal for the two-month extension until 31 May 2015 originated from the Head of the Visitors Programme Unit, as did his decision not to request DG Personnel to effect a subsequent renewal of the applicant’s contract in the light of his unit’s requirements. In any event, the Parliament disputes the contention that the AECE gave the applicant contradictory reasons in support of its decision not to renew her contract and takes the view that it observed the principle that it must have regard for the welfare of officials, inter alia because it renewed the applicant’s contract even after the request for assistance had been made and, moreover, in the decision ruling on the complaint, also decided to grant her compensation on an ex gratia basis, thereby recognising her legitimate expectation that her employment would be extended until 31 December 2015.
91
According to settled case-law, a disputed act adopted by an authority empowered to conclude contracts of employment benefits from a presumption of lawfulness and a misuse of powers affecting that act will be deemed to exist only if it is proven, on the basis of objective, relevant and consistent evidence, to have been adopted for purposes other than those stated (see, to that effect, judgment of 3 October 2006, Nijs v Court of Auditors, T‑171/05, EU:T:2006:288, paragraph 64; order of 22 October 2015, Macchia v Commission, T‑80/15 P, EU:T:2015:845, paragraph 67; and judgment of 26 March 2015, CW v Parliament, F‑41/14, EU:F:2015:24, paragraph 86 and the case-law cited).
92
In that regard, an applicant’s claim of psychological harassment at the hands of their superior does not suffice to establish that any act adopted by the AECE, inter alia during the currency of an administrative inquiry, is unlawful. The applicant must still prove the effect of the conduct amounting to psychological harassment on the content of the act being challenged (see, to that effect, judgments of 24 February 2010, Menghi v ENISA, F‑2/09, EU:F:2010:12, paragraph 69; of 26 March 2015, CW v Parliament, F‑41/14, EU:F:2015:24, paragraph 89; and of 12 May 2016, FS v EESC, F‑50/15, EU:F:2016:119, paragraph 109), since, in that case, that means that the AECE, through its officials and higher-level members of staff, used its power in the pursuit of an unlawful goal in the light of Article 12a of the Staff Regulations, which provides that ‘officials shall refrain from any form of psychological or sexual harassment’.
93
In the present case, it is apparent from the file that the reason why the applicant’s contract was only extended for three months from 1 January to 31 March 2015 and not for a year as the applicant had been told, inter alia by the Head of Unit, cannot, either reasonably or objectively, be linked to a sudden decision taken by that head of unit or, more generally, by the AECE, following the applicant’s making the request for assistance.
94
Although in his email of 26 November 2014, the Head of Unit told the applicant, who was then on sick leave, and two other members of the contract staff, that their contracts would be renewed for an entire year and that he was trying, within his sphere of responsibility, to obtain in so far as possible renewal of their employment contracts within his unit for longer than previously, he nevertheless emphasised the difficulties, including budgetary difficulties, surrounding the sustainability of their posts and duties in future.
95
Next was the email of 10 December 2014, of which it may be presumed that the applicant, who was then on sick leave, became aware inter alia because she was making use of her work email during her sick leave (see, to that effect, order of 14 January 2014, Lebedef v Commission, F‑60/13, EU:F:2014:6, paragraphs 45 and 46). In that email, which was sent the day before the applicant made her request for assistance, the objective reason why her contract of employment would be renewed, not for a year as the Head of Unit and one of her colleagues may have told her, but only for three months, was clearly explained to her. The reason was that she had been unsuccessful in a CAST selection procedure and that accordingly her file had to be examined by the Selection Board in January 2015, in order for an extension of her contract of employment beyond the three-month period to be considered. Consequently, the applicant cannot reasonably claim that the AECE’s decision to extend her contract only for three months is linked to the request for assistance, which in the event was made the day after the applicant was informed by the AECE of the shortened renewal of her contract and of the reasons for that decision.
96
Following the applicant’s reassignment by way of distancing measure to the Visitors Programme Unit, it is apparent from the form of 2 March 2015, completed by the Director of DG Communication, that the proposal to extend the applicant’s contract for two additional months from 1 April to 31 May 2015 had been drawn up following a favourable opinion expressed by the Selection Board at its meeting on 25 February 2015, when the applicant’s name had already been placed on the list referred to in the form of 2 March 2015, referred to in paragraph 19 of this judgment.
97
In that regard, the form of 2 March 2015 indicates that the extension sought was justified by the requirement for additional staff in the Visitors Programme Unit ‘in order to deal with the increased workload in connection with the celebration of the 40 years of existence of the [Visitors Programme Unit], for which a whole range of events [were] going to be organised by the end of May [2015]’. The applicant however denies that she was informed of the reason for the last extension of her contract.
98
Even so, the applicant does not deny a discussion that took place on 4 February 2015. In his email of 28 May 2015, the Head of the Personnel Unit of the Directorate for Resources of DG Communication stated — without being contradicted on the point by the applicant at the pre-litigation or litigation stage — that at the time of the discussion on 4 February 2015 he explained to her that, for the purposes of her reassignment by way of distancing measure, the AECE’s decision had focused on the Visitors Programme Unit within DG Communication due to the requirements for additional staff in that unit in view of the upcoming 40th anniversary celebrations scheduled for 26 May 2015.
99
In the light of the foregoing, nor can the applicant claim that, by its decision to extend her contract by only two additional months from 1 April to 31 May 2015, the AECE’s sole aim was to sanction her for having made the request for assistance.
100
In any event, in so far as, by the first plea, the applicant is challenging the lawfulness of the AECE’s decision to extend her contract only for the period from 1 April to 31 May 2015 or to extend it solely on the basis of the requirements of the Visitors Programme Unit and not those of the Audiovisual Unit to which she had been originally assigned, it must be observed that, irrespective of the fact that she countersigned the supplemental agreement in question on 27 March 2015, the applicant did not challenge that decision through a complaint lodged pursuant to Article 90(2) of the Staff Regulations. Consequently, she cannot call into question the lawfulness of that decision — which has become definitive — in the context of the present action.
101
In the light of the foregoing, the Court finds that the points relied on by the applicant relating to the failure by the Visitors Programme Unit to propose renewing her contract to DG Personnel cannot be deemed to be objective, relevant and consistent evidence indicating that the AECE’s decision not to renew her contract beyond 31 May 2015 was taken for purposes other than those stated by it, when it is apparent from the case file that the adoption of the decision can be attributed to there being no request for renewal of her contract by the Resources Directorate of DG Communication on the basis of a request from one of the units within that DG.
102
The fact that, subsequently to the applicant’s reassignment to the Visitors Programme Unit, the AECE decided to entrust officials with the tasks previously performed by her in the Audiovisual Unit, which had the effect of negating the justification for any subsequent request for renewal of her contract of employment for that unit, where the applicant had been employed since 2003, it should be borne in mind, first, that permanent posts in the institutions are, in principle, intended to be filled by officials and that it is only by way of exception that such posts may be filled by other staff (judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 78). Secondly, the administration has broad discretion in the organisation and structuring of its departments and may decide that tasks that were not clearly identified and have evolved over time and that were previously entrusted to members of the contract staff for auxiliary tasks, possibly as replacements for officials or members of the temporary staff, must henceforth be entrusted to people holding permanent posts.
103
The institutions and bodies of the EU are also free to organise their administrative units taking account of a whole range of factors, such as the nature and scope of the tasks which are assigned to them and the budgetary possibilities (judgments of 17 December 1981, Bellardi-Ricci and Others v Commission, 178/80, EU:C:1981:310, paragraph 19; of 25 September 1991, Sebastiani v Parliament, T‑163/89, EU:T:1991:49, paragraph 33; and of 9 February 1994, Lacruz Bassols v Court of Justice, T‑109/92, EU:T:1994:16, paragraph 88). That freedom involves both the freedom to abolish posts and to change the allocation of tasks in the interest of more efficient work organisation or in response to budgetary requirements to abolish posts imposed by the Union’s political authorities, and the power to reassign tasks previously carried out by the holder of the post abolished, without the abolition of that post necessarily being subject to the condition that all the tasks imposed must be performed by fewer people than before the reorganisation. Furthermore, the abolition of a post does not have to mean that the tasks it involved lapse (see judgments of 11 July 1997, Cesaratto v Parliament, T‑108/96, EU:T:1997:115, paragraphs 49 to 51, and of 10 September 2014, Tzikas v ERA, F‑120/13, EU:F:2014:197, paragraph 82 and the case-law cited).
104
Thus, in the present case, the AECE could freely decide henceforth to entrust officials with the tasks previously performed by the applicant as a member of the contract staff for auxiliary tasks and by another of her colleagues, also a member of the contract staff for auxiliary tasks. Since, in his email of 26 November 2014, thus before the request for assistance was lodged, the Head of Unit had already told the applicant and two of her colleagues, also members of the contract staff, of the upcoming reorganisation of the Newsdesk Hotline in connection with the arrival of an official from the administrators’ function group (AD), the applicant cannot reasonably claim that the AECE’s decision to recruit an official to perform tasks previously performed by her in the Audiovisual Unit was evidence or even merely an objective and relevant indication of an intention to sanction her for having lodged the request for assistance. In fact, that decision appears to have been directed at addressing a concern for streamlining in the organisation of its departments and implementing the AECE’s decision to give the Newsdesk Hotline greater priority by assigning officials to it.
105
In the light of all the foregoing considerations, the conclusion is that the applicant has failed to provide objective, relevant and consistent evidence in support of her claim of misuse of powers.
106
On the same grounds, nor can she argue, first, that by the initial contested decision and the decision ruling on the complaint, the AECE disregarded Article 12a(2) of the Staff Regulations, under which an official who is the victim of psychological or sexual harassment or who has provided evidence of psychological or sexual harassment is not to suffer any prejudice by the institution or, secondly, that, in the light of Article 41(1) of the Charter of Fundamental Rights, her case was not handled impartially, fairly and within a reasonable time by the AECE.
107
As regards the applicant’s claim of infringement of Article 88(b) of the CEOS, it should be observed that, in the version thereof applicable as from 1 May 2004, it provided that in the case of ‘contract staff [for auxiliary tasks] referred to in Article 3b’ that ‘the actual period of employment within an institution, including any period under renewal, [was not to] exceed three years’ and, in the version thereof resulting from the entry into force of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the [Staff Regulations] and the [CEOS] (OJ 2013 L 287, p. 15), that period was changed to six years. However, although that provision provides for a maximum period of employment in that employment category, it does not impose any minimum period of employment on the AECE with respect to a member of staff in that employment category.
108
Therefore, the fact that, by the initial contested decision and the decision ruling on the complaint, the AECE did not exhaust the applicant’s maximum period of employment as a member of the contract staff for auxiliary tasks does not amount to disregard of Article 88(b) of the CEOS.
109
Lastly, the applicant cannot claim that there was a misuse of powers based on the fact that, in her view, the AECE ‘suddenly’ changed its attitude towards her after she made the request for assistance, as it had always, ‘since 6 January 2003, systematically found a solution enabling [her] to be kept in her post’. The fact that the applicant, who did not manage to be successful either in general competitions organised by EPSO or internal competitions in the Parliament, did manage to remain employed by the AECE through different successive contracts in different employment categories in order to perform essentially identical tasks in no way obliged the AECE to continue its employment relationship with her, since the principal characteristic of contracts of employment as contract staff for auxiliary tasks is their insecurity over time, in line with the very purpose of such contracts, which is to arrange for occasional staff to perform duties which — by their nature or by virtue of the absence of a holder of the post — are insecure (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 86), and since members of staff of the EU civil service employed on the basis of a fixed-term contract are necessarily aware of the temporary nature of their employment and of the fact that it does not carry any guarantees of continued employment (see, to that effect, judgment of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 84).
110
In the light of all the foregoing considerations, the first plea must be rejected.
The second plea in law
111
The applicant takes the view that she was dismissed through a misuse of powers by the AECE and considers that it was a case of unjustified dismissal and therefore contrary to Article 30 of the Charter of Fundamental Rights, under which ‘every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices’. She also criticises the AECE for having failed to adopt a position on this argument in the decision ruling on the complaint, so that ‘the contested decisions should be annulled’.
112
The Parliament contends that the second plea is ineffective, since the applicant’s contract ended on the date laid down therein and was not terminated by the AECE.
113
In that regard, it is clear that the second plea replied on by the applicant postulates, in a clearly incorrect manner, that in the present case the AECE adopted a dismissal decision pursuant to Article 47(b)(ii) or Article 49 of the CEOS, whereas the applicant’s contract of employment ended ‘on the date stated in the contract’, as provided for in Article 47(b)(i) of the CEOS, applicable to members of the contract staff for auxiliary tasks under Article 119 of the CEOS.
114
Consequently, the second plea must, in any event, be rejected as manifestly unfounded.
The third plea in law
115
In support of her third plea, the applicant submits that the initial contested decision and the decision ruling on the complaint are vitiated by a manifest error of assessment. That the AECE provided contradictory reasons for its decision not to renew her contract, which shows the implausibility of the reasons relied on by the AECE, is sufficient proof in itself. She adds that the AECE disregarded its duty to have regard for the welfare of officials.
116
The Parliament contends that the third plea should be rejected, stating that the AECE had decided to restructure the Audiovisual Unit as early as 2009, as the unit, which had become completely operational and equipped with a sizeable budget, had a high number of members of the contract staff. A number of competitions and selection procedures were organised and enabled most of the members of staff in post in the unit to secure the status of official. The applicant was not successful in those selection procedures, however, with the result that she could not be recruited for a post as an official in the unit.
117
As regards the contract renewal request, the AECE examined it as carefully as possible but had no vacant post enabling an extension of the applicant’s contract of employment as a member of the contract staff for auxiliary tasks. By way of proof the Parliament points out that, subsequently to 31 May 2015, the date on which applicant’s contract ended, only one member of the contract staff for auxiliary tasks was employed in the Media Directorate, from 3 August 2015 to 2 February 2016, in order to replace a member of staff of the Europarl TV Unit of the Media Directorate. Moreover, on 15 April 2015, when the request for recruitment of that member of staff was drawn up, the applicant, despite being listed as that member of staff on a CAST selection list, was not available because she was still on sick leave, as she had been since the end of September 2014. The Parliament further points out that there is currently only one member of the contract staff for auxiliary tasks from the function group IV left in the Audiovisual Unit, following the reassignment during the course of the contract of another member of the contract staff from the same function group of that unit to the Europarl TV Unit. The Parliament adds that the coordination of the Newsdesk Hotline team in the Audiovisual Unit is henceforth assured by an official, that the day-to-day tasks performed by the applicant when she was there have been given to an official and that a third official has been recruited to complete the team. The Visitors Programme Unit has not hired any members of the contract staff for auxiliary tasks after 31 May 2015. These explanations show that there were no possibilities for renewing the applicant’s contract in those two units or, more generally, in the Media Directorate.
118
It should be borne in mind first of all in that regard that, according to settled case-law, the renewal of a contract of a member of the temporary staff is merely a possibility left to the discretion of the competent authority, in this case the AECE.
119
The institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service. Thus, the competent authority is required, when it takes a decision concerning the situation of a member of staff, to take into consideration all the factors which may affect its decision, that is, not only the interest of the service, but also, in particular, that of the member of staff concerned. That is a consequence of the administration’s duty to have regard for the welfare of its staff, which reflects the balance of the reciprocal rights and obligations established by the Staff Regulations and, by analogy, the CEOS, in the relationship between a public authority and its staff (see judgment of 24 November 2015, Commission v D’Agostino, T‑670/13 P, EU:T:2015:877, paragraph 32 and the case-law cited).
120
That being so, the CEOS does not impose on the administration a prior obligation to examine the possibility of assigning a member of the temporary staff to a department other than the one to which they were assigned, either in a situation involving termination of a contract of indefinite duration (see, to that effect, judgments of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 98, and of 4 December 2013, ETF v Michel, T‑108/11 P, EU:T:2013:625, paragraph 99) or in one involving non-renewal of a fixed-term contract (see, to that effect, judgment of 21 May 2014, Commission v Macchia, T‑368/12 P, EU:T:2014:266, paragraph 57). Similarly, no such obligation exists with respect to members of the contract staff, such as the applicant, who are not assigned to a post listed in the table of staff annexed to the section of the budget relating to each institution. However, even for this category of members of staff, even though they do not hold a post listed in that table, the administration is required, when ruling on a request for renewal of a contract submitted by a member of staff, to take into consideration all factors liable to be decisive for its decision, that is to say, not only the interest of the service but also inter alia that of the member of staff concerned (judgment of 24 November 2015, Commission v D’Agostino, T‑670/13 P, EU:T:2015:877, paragraph 34).
121
In the particular circumstances of the present case, in which the AECE, in order to comply with its obligation of assistance under Article 24 of the Staff Regulations, decided to reassign the applicant to a unit other than that for which she had been appointed, it was bound, as part of its examination of the contract renewal request and by virtue of its duty to have regard for the welfare of officials, to determine, whilst taking account of the applicant’s expressed wish to continue in her employment relationship and notwithstanding the fact that in reality she had been on sick leave since October 2014, whether the interest of the service, both in the original unit of assignment and in the unit of reassignment, called for the employment of a member of staff with a profile matching the applicant’s.
122
In that regard, in view of the broad discretion conferred on the institutions in that context, review by the courts is limited to determining that there has been no manifest error or misuse of power (see judgment of 24 November 2015, Commission v D’Agostino, T‑670/13 P, EU:T:2015:877, paragraph 32 and the case-law cited).
123
In the present case, it is clear from the case file that, at the stage of the initial contested decision, the AECE took account of the interest of both the service in connection with the Visitors Programme Unit and of the applicant, as evidenced in the contract renewal request. It concluded, however, that it was not in a position to offer the applicant an extension of her employment as a member of the contract staff for auxiliary tasks, irrespective of the fact that her name would be henceforth included in a selection list for members of the contract staff.
124
Moreover, the AECE’s finding that there were no requirements for additional administrative staff anymore in the Visitors Programme Unit once the festivities connected with the unit’s 40th anniversary were over is not vitiated by any manifest error of assessment in the light of arguments and documents provided by the Parliament. That finding is not called into question by the statements by the Director-General of DG Personnel in his email of 4 March 2015 referring to increasing requirements in that unit at that time. That reference to increasing requirements could be construed in connection with the requirements relating to the 40th anniversary. Moreover and in any event, it is common ground that no members of the contract staff for auxiliary tasks were appointed by the AECE to perform duties in the Visitors Programme Unit subsequently to the date on which the applicant’s contract ended, which corroborates the fact that the requirements, even if they were increasing, in fact were increasing for a specific time period only and, in any event, did not justify employing a member of staff beyond 31 May 2015.
125
Thus, in the light of inter alia Article 11(2) of the Decision of the Bureau of the Parliament of 3 May 2004 laying down Internal Rules on the Recruitment of Officials and Other Servants (‘the Internal Rules on Recruitment’), which provides that members of the contract staff for auxiliary tasks are to be recruited in accordance with Article 3b of the CEOS in order to ensure continuity of service, the AECE could legitimately consider that, once the 40th anniversary was over, it no longer had to recruit that type of members of staff for the Visitors Programme Unit nor, in particular, enlist the services of a member of staff having a professional profile like the applicant’s.
126
As for taking into account the interest of the service in connection with the Audiovisual Unit, although it is clear from the case file that, as maintained by the applicant, in view of the position adopted in the initial contested decision, the AECE had not examined that unit’s requirements since, on 28 May and 14 July 2015, there was some doubt that the applicant had attempted to raise in her complaint of 24 April 2015 as to which unit had to be considered the one in which she was actually employed. It was that unit that had to be the initiator of any request for renewal of the applicant’s contract, addressed to the Resources Directorate of DG Communication, which could then submit a request for renewal to DG Personnel in its capacity as AECE.
127
However, in the reply of 20 August 2015 to the applicant’s complaint of 24 April 2015, the Secretary-General raised the issue of that ambiguity by confirming the temporary nature of the applicant’s reassignment to the Visitors Programme Unit. In her supplementary complaint of 10 September 2015, the applicant then challenged the view that it was not in the interest of the service to renew her contract of employment in the light of the requirements of the Audiovisual Unit, to which she had to be deemed to have been assigned throughout the period of the administrative inquiry opened by the AECE in response to the request for assistance.
128
In view of the pending adoption of the decision ruling on the complaint, the AECE, in response to the arguments set out in the supplementary complaint of 10 September 2015, examined the issue of the interest of the service in the light of the Audiovisual Unit’s requirements. It concluded, however, that notwithstanding the applicant’s interest in seeing her employment extended, the unit had no requirements justifying the AECE’s extending her employment in the unit nor, more generally, in DG Communication. Therefore, the applicant’s complaint alleging a failure to take account of the interest of the service must be rejected as unfounded.
129
In that regard, it should also be clarified that, contrary to the applicant’s assertion, in a decision not to renew a contract, the AECE may change or substitute the reasons for the decision at the complaint stage, as it did in the present case (see, to that effect, judgments of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraphs 33 to 46, and of 10 September 2014, Tzikas v ERA, F‑120/13, EU:F:2014:197, paragraph 79). It is at the time of adoption of the response to the complaint that the institution’s definitive position is fixed and it is therefore at that stage that it must be ascertained whether the AECE complied with its duty to have regard for the welfare of officials, in the light of the reasons given in the initial decision and in the response to the complaint (see, to that effect, judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 54).
130
The applicant further states in the reply that, in the present case, in the statement in defence the Parliament had ‘consider[ed] the different units in turn — the Europarl TV Unit, the Audiovisual Unit, the Hotline Newsdesk team — [in respect of which the AECE] explored the possibility of renewing the applicant’s contract’, in order to provide in tempore suspecto new reasons for the initial contested decision and the decision ruling on the complaint. Such reasons are, in her submission, inadmissible.
131
In that regard, it should be borne in mind that, in actions brought pursuant to Article 270 TFEU, although a complete lack of reasons cannot be remedied by explanations provided after the action has been lodged since, by that stage, such explanations no longer serve their purpose (see, to that effect, judgments of 26 November 1981, Michel v Parliament, 195/80, EU:C:1981:284, paragraph 22; of 9 December 1993, Parliament v Volger, C‑115/92 P, EU:C:1993:922, paragraph 23; and of 23 February 1994, Coussios v Commission, T‑18/92 and T‑68/92, EU:T:1994:19, paragraphs 74 to 76), the same does not hold true where there has been an insufficient statement of reasons in the act being challenged that was adopted by the AECE or by the appointing authority of the defendant institution.
132
In the latter scenario, the defendant institution may, including once litigation is under way, provide additional clarification rendering nugatory a plea alleging a failure to state reasons (see, to that effect, judgments of 30 May 1984, Picciolo v Parliament, 111/83, EU:C:1984:200, paragraph 22; of 8 March 1988, Sergio and Others v Commission, 64/86, 71/86 to 73/86 and 78/86, EU:C:1988:119, paragraph 52; and of 30 November 1993, Perakis v Parliament, T‑78/92, EU:T:1993:107, paragraph 52). If it does so, however, the defendant institution may not substitute a completely new set of reasons for the initial, incorrect reasons set out in the act being challenged (see, to that effect, judgments of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraph 15, and of 6 November 1997, Berlingieri Vinzek v Commission, T‑71/96, EU:T:1997:170, paragraph 79).
133
In the present case, the Court observes that, in the decision ruling on the complaint, the AECE stated expressly that, first of all, ‘the possibility of re-employing [the applicant] in the Audiovisual Unit [was] no longer an option, as it [had been] decided in the meantime to entrust the tasks for which she had been employed to an official’, and, secondly, that ‘given the [the applicant’s] specific profile and the tasks she performed, it [was] not possible for DG Communication to offer her another post matching her qualifications beyond 31 December 2015’.
134
Thus, the explanations provided by the Parliament at the litigation stage about the different units of the Media Directorate and the Directorate for Relations with the Citizens of DG Communication, in respect of which the AECE had examined the possibility of renewing the applicant’s contract, were given merely by way of additional clarification as contemplated in the case-law referred to in paragraph 132 above; those explanations, in so far as they relate to factors that precede or are contemporaneous to the decision ruling on the complaint, comply with the principle of lawfulness (judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 27). It is common ground that in both the decision ruling on the complaint and at the litigation stage the reasons stated by the AECE and relied on by the Parliament for refusing to renew the applicant’s contract beyond 31 December 2015 were the lack of available posts within DG Communication allowing for renewal in the light of the applicant’s profile.
135
It should further be noted in that regard that, in the light of the case-law referred to in paragraphs 119 and 120 of this judgment, the AECE’s duty to have regard for the welfare of officials did not include the obligation to examine the possibility of extending the applicant’s contract in order to assign her to units other than the Audiovisual Unit and the Visitors Programme Unit, as such a step would have amounted to giving the applicant assurances of a right of priority which only officials have and would have undermined the interests of those members of staff of those other units who wished to see their own contracts of employment renewed in those units or of candidates in selection procedures opened for vacant posts in those units (see, to that effect, judgment of 4 December 2013, ETF v Schuerings, T‑107/11 P, EU:T:2013:624, paragraph 87). However, in the present case, the AECE, in the decision ruling on the complaint, went beyond what it had to do as part of its duty to have regard for the welfare of officials and considered which posts were vacant in DG Communication as a whole, but reached the conclusion that there was no suitable post allowing for renewal beyond 31 December 2015.
136
That finding is, in any event, not vitiated by any manifest error of assessment.
137
The applicant held a post as a member of the temporary staff for auxiliary tasks on the date of adoption of the decision not to renew her contract. In that regard, as stated by the Head of Unit in his email of 26 November 2014 and as evidenced by the information and material provided by the Parliament, the Audiovisual Unit was about to undergo a reorganisation so that the AECE would be able to entrust tasks previously performed by the applicant to officials which, as stated earlier, came within its broad discretion in the organisation of its departments. In so doing, it could give priority to filling the post advertised in the notice of vacancy No AST/157554 through the transfer of an official from the assistants’ function group, a status not held by the applicant. Moreover, the documents provided by the Parliament show that only one member of the contract staff for auxiliary tasks was employed in the Media Directorate in 2016 subsequently to the applicant’s departure. That was a member of staff recruited to replace, from 3 August 2015 to 2 February 2016, a person who had gone on maternity leave. That member of staff was recruited to perform tasks in the Europarl TV Unit, which is separate from the Audiovisual Unit and the Visitors Programme Unit and, on the date of that recruitment, not only was the applicant unavailable for such a replacement because she herself was also off work on medical grounds, but there is nothing indicating that her profile would have been a suitable match for the replacement.
138
The applicant further complains that, despite her requests, the internal competitions that had been organised in the Parliament concerned only profiles that were ‘very specific and technical … for archivists, assemblers, graphic designers or producers …’. It must be remembered, however, that under Article 27 of the Staff Regulations, ‘recruitment [of officials] shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity, recruited on the broadest possible geographical basis from among nationals of Member States of the Union’. Consequently, no member of staff can require the organisation of a competition corresponding to their profile since, notwithstanding Article 4(3) of the Internal Rules on Recruitment, an institution cannot facilitate access for its members of staff to the status of official in a manner infringing the principle of equal treatment.
139
Lastly, the applicant points to the fact that ultimately she performed the same duties for nearly 13 years holding different types of status and that, therefore, under its duty to have regard for the welfare of officials, the AECE was bound to extend her last contract.
140
In that regard, it should be remembered that, although she was working for a company providing services to the Parliament, the AECE offered her direct employment as a member of the contract staff as from 1 April 2005 and that, as from 1 February 2006, she was employed as a member of the temporary staff. Under Article 8(2) of the CEOS, that contract of employment as a member of the temporary staff ended necessarily at the end of the maximum period of six years of employment in that capacity and it must be concluded that the only reason the applicant was offered that employment, which was offered by way of exception to the principle by which priority is to be given to filling permanent posts with officials, was in order to meet the requirements of the Audiovisual Unit (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 79).
141
That being the case, at the end of her employment for a maximum period of six years as a member of the temporary staff, the AECE ensured that the applicant was able to continue to be employed by it at that point as a member of the contract staff for auxiliary tasks even though, in that regard, the applicant now relies on the fact that she inevitably was assigned the same tasks, both as a member of the temporary staff and as a member of the contract staff for auxiliary tasks, which ultimately casts doubt on the wisdom of the AECE’s approach in using either of those employment categories.
142
The AECE also agreed to grant the applicant an amount of EUR 22000 on an ex gratia basis.
143
All of those factors are indicative of the AECE’s having discharged its duty to have regard for the welfare of the applicant.
144
In the light of all the foregoing considerations, the AECE made no manifest error of assessment and did not disregard its duty to have regard for the welfare of officials in finding in the present case that it was not in a position to renew the applicant’s contract, at the very least not beyond 31 December 2015.
145
The third plea in law must therefore be rejected.
The fourth plea in law
146
In support of the fourth plea the applicant submits that the AECE failed to hear her before adopting the initial contested decision, contrary to Article 41(2) of the Charter of Fundamental Rights. Had she been heard, she could have argued that the requirements of the Visitors Programme Unit were increasing and necessitated the extension of her contract of employment. The AECE could have asked the Visitors Programme Unit about its actual requirements and obtained clarification about the obvious contradiction between its actual requirements and the initial contested decision, in which the existence of those requirements was denied. She could have also drawn the AECE’s attention to the fact that on 24 April 2015 she had lodged a complaint against the reassignment decision, challenging the permanence of that reassignment, and could have pointed out that other units of DG Communication had human resources requirements, in particular the Media Directorate and, within that directorate, the Audiovisual Unit. The publication of four notices of vacancy between 27 March and 29 May 2015 was also a factor on which she could have relied before the AECE in order to demonstrate the existence of those requirements. Lastly, she could have obtained testimony from the Director of the Media Directorate on the state of that directorate’s requirements, in support of the contract renewal request.
147
The applicant states that, apart from the fact that the initial contested decision could have been different if she had been heard beforehand by the AECE on the question of her contract renewal, the AECE’s substitution, at the stage of the decision ruling on the complaint, of the reasons for its initial decision with a completely new and contradictory set of reasons, amounts to infringement of the obligation to state reasons. The same holds true for the fact that the AECE failed to address a number of her complaints in the decision ruling on the complaint.
148
The Parliament contends that the fourth plea should be rejected, observing that, in the present case, the applicant had the opportunity in the contract renewal request to set out the reasons which, in her view, justified the renewal of her contract. The AECE did in fact take due account of the arguments put forward by the applicant on this point, inter alia when it decided, in the decision ruling on the complaint, to uphold her claim of legitimate expectation that her contract would be extended until 31 December 2015. In any event, even if the AECE did infringe the applicant’s right to be heard in the present case, the Parliament states that it would have adopted the same decision not to renew her contract if it had duly heard her. It takes the view that the arguments put forward in the application, which the applicant could have put forward before the initial contested decision, are identical to those set out in the contract renewal request and her complaint of 22 July 2015, which it addressed in both the initial contested decision and the decision ruling on the complaint.
149
It should be borne in mind as a preliminary point that the rights of the defence, as henceforth enshrined in Article 41 of the Charter of Fundamental Rights, and which, according to the Courts of the European Union, is of general application (judgment of 11 September 2013, L v Parliament, T‑317/10 P, EU:T:2013:413, paragraph 81), include, while being more extensive, the procedural right provided for in paragraph 2(a) of that article, of every person to be heard, before any individual measure which would affect him or her adversely is taken (judgment of 5 February 2016, GV v EEAS, F‑137/14, EU:F:2016:14, paragraph 71).
150
Thus, the right to be heard, which must be safeguarded even where there are no applicable rules, requires that the person concerned must have been afforded the opportunity effectively to make known his views on any information against him which might have been taken into account in the measure to be adopted (see, to that effect, judgments of 3 June 2015, BP v FRA, T‑658/13 P, EU:T:2015:356, paragraph 52 and the case-law cited, and of 12 May 2016, FS v EESC, F‑50/15, EU:F:2016:119, paragraph 115).
151
In that regard, it must be remembered that the decision by an administration not to avail itself of the possibility of renewing the fixed-term contract of employment of a member of staff when it has such an option under the CEOS is not, formally speaking, a decision adopted at the end of a procedure opened against the person concerned.
152
However, when a member of staff, in their capacity as a person covered by the Staff Regulations, submits a request for renewal of her contract of employment pursuant to Article 90(1) of the Staff Regulations before the expiry of that contract (see, to that effect, judgment of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 38) or when the institution provides in its internal rules for the use in due time before the expiry of the contract of a member of staff of a specific procedure for renewal of that contract, then, at the end of such a procedure or in response to such a request under the Staff Regulations, a decision on renewal of the contract of the person concerned must be deemed to have been adopted by the AECE and, inasmuch as the decision adversely affects the person concerned, that person must have been heard by the AECE before the adoption of that decision which, moreover, must contain a statement of reasons as required by Article 25 of the Staff Regulations, which is applicable by analogy to members of the contract staff for auxiliary tasks by virtue of Article 92 of the CEOS.
153
In that situation, in which the AECE decides, in so far as such an option is provided for in the CEOS, not to avail itself of its option under the CEOS to extend the contract of employment of a member of staff, such a decision not to renew can be adopted only once the person concerned has been able duly to put forward their point of view, which may be a simple announcement by the AECE of its intention and its reasons for not availing itself of that option, as part of a written or verbal exchange, which may even be brief (see, to that effect and by analogy, judgments of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraphs 49 to 52; of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 33; and of 10 September 2014, Tzikas v ERA, F‑120/13, EU:F:2014:197, paragraph 59). That exchange must be initiated by the AECE, who has the burden of proof (see, to that effect, judgments of 6 December 2007, Marcuccio v Commission, C‑59/06 P, EU:C:2007:756, paragraph 47; of 3 June 2015, BP v FRA, T‑658/13 P, EU:T:2015:356, paragraph 54; and of 12 May 2016, FS v EESC, F‑50/15, EU:F:2016:119, paragraph 116).
154
In that regard, it has also been held that the principle of observance of the rights of the defence is particularly important where, as in the present case, the decision not to renew the appellant’s contract of service was adopted against a background of poor personal relations (see, to that effect, judgments of 3 June 2015, BP v FRA, T‑658/13 P, EU:T:2015:356, paragraph 51, and of 12 May 2016, FS v EESC, F‑50/15, EU:F:2016:119, paragraph 114), whilst bearing in mind that the question whether there has been infringement of the right to be heard must be determined having regard to, inter alia, the legal rules governing the matter in question (judgment of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 34).
155
In the present case, following the submission of the contract renewal request six working days before the expiry of the contract on 31 May 2015 and irrespective of the fact that the administration had in that regard, pursuant to Article 90(1) of the Staff Regulations, a four-month time limit for reply (see, to that effect, judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 64) and that the applicant was then on sick leave, the AECE was able to provide a response to the contract renewal request in less than a week. However, it formally omitted to hear the applicant beforehand in that regard, although the requirements arising from Article 41(2)(a) of the Charter of Fundamental Rights do not present any particular difficulties of implementation for a diligent administration and a hearing of the person concerned is a minimal guarantee when, as in the present case, the administration is acting in an area where it holds broad discretion (see, to that effect, judgment of 5 February 2016, GV v EEAS, F‑137/14, EU:F:2016:14, paragraph 77). Nor did the AECE formally hear the applicant before the confirmatory decision of 14 July 2015.
156
It follows that, in the present case, the AECE infringed the applicant’s right to be heard and, therefore, Article 41(2)(a) of the Charter of Fundamental Rights.
157
However, according to the case-law, even where there has been infringement of the rights of the defence, it is also necessary, for the plea to be successful, that had it not been for that irregularity, the outcome would have been different (see order of 14 April 2016, Dalli v Commission, C‑394/15 P, not published, EU:C:2016:262, paragraph 41; judgment of 6 February 2007, Wunenburger v Commission, T‑246/04 and T‑71/05, EU:T:2007:34, paragraph 149; see also judgment of 18 September 2015, Wahlström v Frontex, T‑653/13 P, EU:T:2015:652, paragraph 21 and the case-law cited).
158
In that regard, the Court notes that the factors put forward by the applicant at the litigation stage are, in essence, identical to what she stated in the contract renewal request. The AECE has taken those factors into account, however, as it was in response to that request that it adopted the initial contested decision, being the decision of 28 May 2015, as confirmed by the decision of 14 July 2015.
159
It was also those same factors that were reiterated and elaborated upon in the complaint and the supplementary complaint. Yet the AECE had addressed those arguments in the decision ruling on the complaint, whilst maintaining its decision not to renew the applicant’s contract. Furthermore, as regards the four other vacancy notices on which the applicant could have relied had she been heard, suffice it to note that they related to posts in the administrators’ function group, in which priority was to be given to filling posts through the transfer or appointment of officials.
160
Therefore, even if the applicant had been formally heard before the adoption of the initial contested decision, the conclusion must be, in the light of the factors put forward by her at the litigation stage, that it still would not have led to a different outcome for the renewal of her contract.
161
In the light of the foregoing, the fourth plea seeking annulment must be rejected, as must all of the claims seeking annulment in their entirety.
The claims for damages
162
In support of her claims for damages, the applicant submits that she suffered non-material damage due to the unlawfulness of the initial contested decision and the decision ruling on the complaint, inter alia because those decisions amounted to a misuse of powers by the AECE and because they amounted to a dismissal decided upon in response to her making the request for assistance. The applicant has suffered psychologically and states that she has had to have therapy; she takes the view that her dignity has been adversely affected by the AECE’s decision-making. In those circumstances, she alleges non-material damage, for which she claims EUR 100000 in compensation.
163
The applicant also refers to other aspects relating to the AECE’s methods for communicating with its members of staff at the end of their contract, including the blocking of her email account on 31 May 2015 and the automated sending of emails explaining the administrative steps relating to the end of contract, which the persons concerned are asked to ignore if their contract is about to be renewed. The applicant considers them to be a separate fault on the part of the administration which caused her non-material damage that should be compensated for in the amount of EUR 15000.
164
The Parliament contends that the claims for damages should be dismissed as unfounded, submitting that its departments are not at fault, either in the adoption of the decision not to renew the applicant’s contract or, more generally, in the manner in which they dealt with her case.
165
In that regard, suffice it to recall that claims for compensation of material or non-material damage must be rejected where, as in the present case, they are closely linked with the claims seeking annulment, which themselves were rejected as inadmissible or unfounded (see, to that effect, judgments of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 129; of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 51; and of 30 April 2014, López Cejudo v Commission, F‑28/13, EU:F:2014:55, paragraph 105).
166
Therefore, the claims for damages, in so far as they are aimed at obtaining compensation for non-material damage arising from the unlawfulness of the initial contested decision and the decision ruling on the complaint, must be rejected.
167
Moreover, inasmuch as those claims are aimed at obtaining compensation for non-material damage in connection with a separate fault on the part of the administration, the factors put forward by the applicant do nothing to establish proof of that fault. As email accounts are reserved strictly for uses directly linked to the tasks exercised by members of staff, there was nothing unusual about the AECE’s having deactivated the applicant’s email account at the end of her employment (see, to that effect, judgment of 6 October 2015, CH v Parliament, F‑132/14, EU:F:2015:115, paragraph 74). Moreover, the AECE could, in the interest of the smooth running of the department, decide that certain emails would be sent automatically according to a given schedule to members of staff whose contracts were about to expire.
168
It follows that the claims for damages in connection with a separate alleged professional fault by the AECE must also be rejected.
169
As the claims seeking annulment and the claims for damages have been rejected, the case must be dismissed in its entirety.
Costs
170
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
171
Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Parliament.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Ms HF to pay the costs.
Pelikánová
Nihoul
Svenningsen
Delivered in open court in Luxembourg on 24 April 2017.
[Signatures]
(
*1
)	Language of the case: French.