62021TJ0164_RES
Case T‑164/21
QM
v
European Union Agency for Law Enforcement Cooperation (Europol)
Judgment of the General Court (Seventh Chamber), 9 November 2022
Civil service – Members of temporary staff – Non-renewal of a fixed-term contract for an indefinite period – Interest of the service – Error in law – Manifest error of assessment – Right to a hearing – Principle of sound administration – Duty of care
Officials – Members of temporary staff – Recruitment – Renewal of a fixed-term contract – Administration’s discretion – Europol staff – Adoption of an internal directive establishing the principle of renewal under certain conditions – Voluntary curb on the administration’s discretion in that regard
(Conditions of Employment of Other Servants, Art. 47(1)(b); Europol Staff Regulations, Art. 4(3))
(see paragraphs 82 to 89)
Officials – Members of temporary staff – Recruitment – Renewal of a fixed-term contract – Administration’s discretion – Judicial review – Limits – Manifest error of assessment – Notion – Burden of proof
(Conditions of Employment of Other Servants, Arts 2(a), 8(1) and 47(b))
(see paragraphs 114, 115, and 121 to 123)
Résumé
In January 2020, the European Union Agency for Law Enforcement Cooperation (Europol) commenced the procedure for the renewal of the contract of the applicant, QM, a member of the temporary staff and the head of a department at that agency, by a contract for an indefinite period, in accordance with the rules applicable at Europol.
In May 2020, the Executive Director of Europol, in her capacity as the authority authorised to conclude contracts of employment (‘AACC’), informed the applicant of her intention not to renew his contract by a contract for an indefinite period, stating that, in order to reflect Europol’s future strategy, the future head of the department in question would have to have additional skills and competencies which the applicant did not possess.
In the same month, the AACC decided not to renew the applicant’s contract by a contract for an indefinite period on the ground that an operational need for a head of department with additional expertise, in comparison with the applicant’s post, had however been identified (‘the contested decision’).
The General Court, hearing an action for annulment of the contested decision brought by the applicant, interprets Europol’s internal directive, which makes the renewal of a contract for an indefinite period subject to fulfilment of various criteria. In this context, the Court rules that an agency, such as Europol, which has a wide discretion when it comes to replacing a fixed-term contract by a contract of indefinite duration, may decide not to renew a contract of employment where the staff member’s skills and competencies no longer satisfy the reasonably foreseeable future requirements of the post held, even if that post will not be abolished in the future.
Findings of the Court
As a preliminary point, the Court observes that the possibility of renewing a temporary staff contract is a mere possibility left to the discretion of the competent authority, since the institutions have a wide discretion in the organisation of their departments according to the tasks conferred on them and in the assignment, in view of those tasks, of staff who are made available to them, on condition that that assignment is carried out in the interests of the service. This is all the more relevant when it comes to replacing a fixed-term contract by a contract for an indefinite period, which creates a more stable link with no time limits between the institution and the staff member concerned.
However, where an administration has adopted, by internal directive, specific arrangements, intended in particular to guarantee the transparency of the contract renewal process and the correct application of certain procedural conditions, those arrangements can be regarded as a voluntary curb on the institution’s discretion, from which the administration may not depart without setting out clearly the reasons which may justify that change, since otherwise the principle of equal treatment would be infringed. This is so in the case of Europol, which has laid down specific arrangements making the renewal of contracts for an indefinite period subject to three cumulative criteria, that is to say, first, the continuing need for the post or task, including in the light of foreseeable future developments, secondly, the skills and competencies of the staff member and their relevance to the post held or duty performed, and thirdly, the consistently high performance of the staff member concerned.
In the first place, the Court examines whether Europol’s application of the first two criteria and its finding of a mismatch between the applicant’s skills and competencies and foreseeable future developments were justified and coherent.
In that regard, first, the Court considers that, in the interests of the service, Europol was required to assess, in a responsible manner, future changes and foreseeable developments before taking the decision on the renewal of the contract. To that end, the Court points out that, on the one hand, Europol, having regard to the numerous strategic planning documents relating to its activity, considered that the department concerned should carry out operational activities and no longer merely activities in support of the operational activities of the other departments, and therefore the head of the department concerned had to possess additional competencies. On the other hand, the Court notes that, having assessed the applicant’s skills and competencies with regard to his personal file and the comments which he submitted in the contract renewal procedure, Europol considered that they did not match the developments envisaged for the future.
Secondly, a completely autonomous application of the renewal criteria could lead to a situation where Europol had to renew a staff member’s contract even though his or her skills did not meet the reasonably foreseeable future requirements of the post held, which would clearly be contrary to the interests of the service and the purpose of the procedure laid down.
In those circumstances, and having regard to the broad discretion of the AACC as regards the renewal of fixed-term contracts by contracts for an indefinite period, the Court concludes that Europol did not err in law in applying the candidate assessment criteria to the renewal of the contract.
Furthermore, the Court notes that the contested decision is not based on a future reorganisation of the agency. Thus, the post of head of department has been maintained in Europol’s organisational chart but, since the needs of the post matching new competencies had been redefined, with additional competency requirements.
In the second place, the Court considers that Europol did not commit a manifest error of assessment in considering that the applicant did not have the skills and competencies to match its new needs. It also notes that Europol does not dispute either the applicant’s high performance or his ability to adapt. The reason justifying the non-renewal of the applicant’s contract was that his profile did not match Europol’s future needs, namely as regards the additional expertise now required. It is therefore apparent that the new needs and areas of additional expertise have been identified and that, in the view of Europol, the applicant’s competencies are not sufficient to meet them. Furthermore, the applicant was well aware of those new needs of the organisation since they were clearly identified in numerous strategic documents in whose drafting the applicant was involved and in which he had opportunity to describe those of his skills which were not included in his personal file.
In the light of those considerations, the Court dismisses the action in its entirety.