JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

4 May 2010

Case F-47/09

Éric Mathias Fries Guggenheim

v

European Centre for the Development of Vocational Training

(Civil service — Members of the temporary staff — Non-renewal of contract — Article 11a of the Staff Regulations — Sixth subparagraph of Article 1 of Annex II to the Staff Regulations — Function of staff representation — Duty of impartiality and of independence)

Application: brought under Articles 236 EC and 152 EA, in which Mr Fries Guggenheim seeks annulment of the decision of the Director of the European Centre for the Development of Vocational Training (Cedefop) of 7 July 2008 not to renew his contract as a member of the temporary staff and, in so far as is necessary, of the decision of 18 July 2008 confirming the abovementioned decision, as well as an order that Cedefop pay him damages should he not be reinstated.

Held: The application is dismissed. The applicant is ordered to pay the costs.

Summary

1. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion

(Conditions of Employment of Other Servants, Art. 47(c))

2. Acts of the institutions — Directives — Direct imposition of obligations on the Union institutions in their relations with their staff — Not included — Possibility of relying on certain provisions — Scope

(Art. 10 EC)

3. Officials — Rights and obligations — Obligation of independence and integrity

(Staff Regulations, Art. 11a)

4. Officials — Organisation of departments — Assignment of staff — Administration’s discretion — Limits — Interests of the service

(Staff Regulations, Arts 4, 7(1), 29 and 45)

5. Officials — Actions — Claim for compensation related to a claim for annulment — Rejection of claim for annulment leading to rejection of claim for compensation

(Staff Regulations, Art. 91)

1. The termination of a fixed-term temporary staff contract pursuant to Article 47(c) of the Conditions of Employment of Other Servants, provided that it complies with the period of notice provided for in the contract, and the early termination of a fixed-term temporary staff contract fall within the broad discretion of the competent authority, and review by the Union judicature must therefore be confined, irrespective of its review of compliance with the obligation to state reasons, to ascertaining that there has been no manifest error or misuse of powers.

The same applies a fortiori in the case, not of an early termination, but of the non-renewal of a fixed-term temporary staff contract. Consequently, in that context, review by the judicature must be confined to ascertaining that there was no manifest error in the assessment of the interests of the service and no misuse of powers.

The competent authority should, when taking a decision concerning the situation of a member of staff, take into consideration all the factors which may affect its decision and, in particular, the interests of the staff member 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 Conditions of Employment of Other Servants, in the relationship between a public authority and civil servants.

The above considerations of general application also apply in a case where the staff member has performed duties as a staff representative, since the Conditions of Employment of Other Servants do not lay down any special or exceptional rules governing the termination of the contract of a member of the temporary staff who has performed such duties. However, in so far as the staff member concerned, in the performance of those duties, may be led to oppose or openly criticise certain positions adopted by the administration, the competent authority must take particular care to ensure that its assessment of whether to renew the staff member’s contract is not negatively influenced by his conduct in the performance of his staff representation duties, provided, however, that that conduct did not go beyond the normal confines of social dialogue. Such care is particularly necessary in that collective industrial relations sometimes take place in a particularly tense conflictual context.

(see paras 64-67)

See:

25/80 De Briey v Commission [1981] ECR 637, para. 7

T-45/90 Speybrouck v Parliament [1992] ECR II-33, paras 97 and 98; T-51/91 Hoyer v Commission [1994] ECR-SC I-A-103 and II-341, para. 36; T-123/95 B v Parliament [1997] ECR-SC I-A-245 and II-697, para. 70; T-223/99 Dejaiffe v OHIM [2000] ECR-SC I-A-277 and II-1267, para. 51; T-7/01 Pyres v Commission [2003] ECR-SC I-A-37 and II-239, para. 50

F-38/06 Bianchi v ETF [2007] ECR-SC I-A-1-183 and II-A-1-1009, paras 92 and 93 and para. 94 and the case-law cited therein

2. It is true that directives are addressed to the Member States and not to the Union institutions or bodies. The provisions of Directive 2002/14 establishing a general framework for informing and consulting employees in the European Union cannot therefore be treated as imposing, as such, any obligations on the institutions in their relations with their staff.

However, the fact that a directive is not binding as such on the institutions does not preclude it from being applicable to them indirectly in their relations with their officials and other staff. In particular, the institutions, in accordance with their duty to cooperate in good faith under the second paragraph of Article 10 EC, must take into account, in their conduct as employers, legislative provisions adopted at Union level laying down in particular minimum requirements designed to improve the living and working conditions of workers in the Member States through the approximation of national laws and practices. Such an obligation also applies to the bodies set up by the Union legislature to help the institutions to implement or manage the policies provided for in the Treaties.

(see paras 70-71)

See:

C-25/02 Rinke [2003] ECR I-8349, para. 24

T-495/04 Belfass v Council [2008] ECR II-781, para. 43

F-65/07 Aayhan and Others v Parliament [2009] ECR-SC I-A-1-105 and II-A-1-567; F-134/07 and F-8/08 Adjemian and Others v Commission [2009] ECR-SC I-A-1-149 and II-A-1-841, para. 93, on appeal before the General Court of the European Union, Case T-325/09 P

3. Deep differences of opinion between the management of a European agency and the agency’s staff representatives concerning questions covered in their social dialogue do not, in themselves, form a sufficient basis for a legitimate and objectively justified fear that the director of an agency might, outside that social dialogue, have been unfavourably prejudiced against a staff member performing staff representation duties or have had a personal interest in the non-renewal of that staff member’s contract, to the extent of losing his impartiality in the performance of his duties.

First of all, such differences of opinion, which are, after all, unconnected with the staff member’s personal situation, are not, in themselves, so serious that any assessment by the director is likely to be vitiated by a lack of impartiality towards the staff member in question. Secondly, a purely abstract risk of a personal conflict in which the director was supposedly placed solely because of those differences of opinion would not form a sufficient basis for alleging infringement of Article 11a of the Staff Regulations.

(see paras 78-79)

See:

T-157/04 De Bry v Commission [2005] ECR-SC I-A-199 and II-901, paras 38 and 39

4. 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, however, that that assignment is carried out in the interest of the service and with respect for the principle of assignment to an equivalent post.

Given the extent of the discretion which the institutions have in evaluating the interest of the service, the Union judicature must restrict itself to determining whether the administration has remained within limits which are not open to criticism and has not exercised its discretion in a manner which is manifestly incorrect.

The interests of the service may limit the scope of the discretion which the appointing authority enjoys by requiring that persons assigned to certain duties are not only competent, but are also the most competent to discharge them, meaning that the latter should consider the comparative merits of the interested persons in order to choose the most appropriate.

(see paras 104-106)

See:

C-116/88 and C-149/88 Hecq v Commission [1990] ECR I-599, para. 11

T-98/96 Costacurta v Commission [1998] ECR-SC I-A-21 and II-49, para. 36; T-103/01 Cwik v Commission [2002] ECR-SC I-A-229 and II-1137, para. 30; T-373/04 Fries Guggenheim v Cedefop [2006] ECR-SC I-A-2-169 and II-A-2-819, para. 68, para. 69 and the case-law cited therein, and para. 71

5. In actions brought by officials, a claim for compensation for damage must be rejected where it is closely related to a claim for annulment which has itself been rejected as unfounded.

(see para. 119)

See:

T-330/03 Liakoura v Council [2004] ECR-SC I-A-191 and II-859, para. 69; T-5/04 Scano v Commission [2005] ECR-SC I-A-205 and II-931, para. 77

Bianchi v ETF, para. 104