JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

28 March 2012

BD

v

European Commission

‛Civil service — Contract staff — Non-extension of employment contract — Article 11a of the Staff Regulations — Conflict of interests — Relationship of trust — Article 12b of the Staff Regulations — Outside activity — Presumption of innocence’

Application:

brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which BD seeks, in particular, annulment of the decision contained in a note of 30 August 2010 from the authority empowered to conclude contracts of employment at the Commission informing him that his contract would not be extended. In the same application BD also seeks an order that the Commission pay him compensation for the non-material harm suffered.

Held:

The action is dismissed. The applicant is to bear his own costs and the Commission’s costs.

Summary

Officials — Principles — Right to a presumption of innocence — Scope — Whether permitted to deduce from evidence assembled in an investigation by the European Anti-Fraud Office (OLAF) that the relationship of trust has been broken, preventing the renewal of the contract of a member of the contract staff — Not prohibited

A member of the contract staff who is the holder of a fixed-term contract does not, in principle, have any right to the renewal of his contract, which is a mere option, subject to the condition that such renewal is consistent with the interest of the service. By contrast with officials, whose security of tenure is guaranteed by the Staff Regulations, it is clear from Article 47(b) of the Conditions of Employment of Other Servants, applicable to contract staff pursuant to the first paragraph of Article 119 of those Conditions of Employment, that the duration of the employment relationship between an institution and a member of the contract staff engaged for a fixed period is governed, within the limits fixed by Article 85 of the Conditions of Employment, by the conditions laid down in the contract concluded between the parties. Furthermore, the administration enjoys a wide discretion with regard to the renewal of fixed-term contracts of members of the contract staff. However, when the administration introduced, by an internal directive, a special system designed to ensure transparency in the procedures for renewing contracts, the adoption of that system was tantamount to a voluntary curb on the institution’s discretion. The provisions of a contract of a member of the contract staff which make renewal subject to passing a selection test and to the management’s agreement do not constitute such a system. (see paras 31-33, 35-36) See: 17 October 2002, T-330/00 and T-114/01 Cocchi and Hainz v Commission, para. 82; 6 February 2003, T-7/01 Pyres v Commission, para. 64 7 July 2009, F-54/08 Bernard v Europol, paras 44 and 47; 23 November 2010, F-8/10 Gheysens v Council, para. 75

It follows from the fact that a member of the contract staff does not have security of tenure, from the wide discretion enjoyed by the authority empowered to conclude contracts of employment to decide whether or not to renew his fixed-term contract, and from the terms of Article 47(b)(i) of the Conditions of Employment of Other Servants that the competent authority is under no obligation to institute a disciplinary procedure against a member of the contract staff whose conduct is capable of justifying his dismissal on disciplinary grounds, and that it may, in such a case, fall back on the possibilities offered by the contractual nature of the relationship between them. Article 49(1) of the Conditions of Employment, applicable to contract staff pursuant to the first paragraph of Article 119 of those Conditions of Employment, envisages using a disciplinary procedure only in order to terminate a contract of employment ‘without notice’. Thus the decision to await the expiry of the fixed-term contract of the member of the contract staff concerned and not to renew it does not, as such, constitute a misuse of powers. (see para. 45) See: 12 December 2000, T-223/99 Dejaiffe v OHIM, para. 38 24 April 2008, F-74/06 Longinidis v Cedefop, para. 116; 7 July 2010, F-116/07, F-13/08 and F-3l/08 Tomas v Parliament, para. 158

Given its very purpose, which is to enable the administration to review its decision, the pre-litigation procedure is of an evolving nature, so that, in the scheme of legal remedies provided for in Articles 90 and 91 of the Staff Regulations, the administration may decide, when it rejects a complaint, to vary the grounds on which it had adopted the contested measure. Consequently, evidence of a misuse of powers and abuse of process by the administration may not be found in the fact that, in its decision rejecting the complaint, it stated different grounds from those in the contested decision. (see para. 47) See: 9 December 2009, T-377/08 P Commission v Birkhoff, paras 55 to 60 1 July 2010, F-45/07 Mandt v Parliament, para. 110; 15 December 2010, F-67/09 Angulo Sánchez v Council, para. 70; 28 September 2011, F-26/10 AZ v Commission, para. 38

The interests of the service and the maintenance of the relationship of trust which the authority empowered to conclude contracts of employment must take into account when deciding whether or not to renew a contract of employment must be assessed not just in terms of the department to which the person concerned is assigned, the interests of which cannot be ignored, but also in terms of the directorate-general to which that department is attached, or even in terms of the institution as a whole. Moreover, it is particularly necessary for the competent authority to assess the interests of the service as a whole where the conduct of a staff member with financial responsibilities is at issue. In that regard, the fact that a member of the contract staff completed an allegedly exemplary probation period does not invalidate the assessment of the authority empowered to conclude contracts of employment as to whether it is appropriate not to renew his contract in the light of facts brought to light after the report concluding that probation period. (see paras 48, 80)

The right to a presumption of innocence applies, even in the absence of a criminal prosecution, for an official accused of a breach of his obligations under the Staff Regulations which is sufficiently serious to warrant an investigation by the European Anti-Fraud Office (OLAF), in the light of which the administration may adopt any measure it deems necessary, however severe. However, that right has neither the object nor the effect of preventing the authority empowered to conclude contracts of employment from deducing from evidence assembled in the course of OLAF’s investigation that the relationship of trust has been broken, precluding renewal of the contract of a member of the contract staff. (see paras 51, 54) See: 8 July 1999, C-235/92 P Montecatini v Commission, para. 175 6 July 2000, T-62/98 Volkswagen v Commission, para. 281; 8 July 2004, T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering v Commission, para. 178; 4 October 2006, T-193/04 Tillack v Commission, para. 121; 27 September 2006, T-44/02 OP, T-54/02 OP, T-56/02 OP, T-60/02 OP and T-61/02 OP Dresdner Bank and Others v Commission, para. 61; 8 July 2008, T-48/05 Franchet and Byk v Commission, para. 214 7 December 2010, T-49/07 Fahas v Council, para. 63; 5 October 2011, T-11/06 Romana Tabacchi v Commission, para. 129 23 November 2010, F-75/09 Wenig v Commission, para. 58

Article 11a of the Staff Regulations, applicable to members of the contract staff under Article 3a of the Conditions of Employment of Other Servants pursuant to Articles 11 and 81 of those Conditions of Employment, is intended to guarantee the independence, integrity and impartiality of officials and other staff, and consequently those of the institutions they serve, by imposing on the official or other staff member concerned a duty to provide the appointing authority or the authority empowered to conclude contracts of employment with information as a precaution, so that it can take the appropriate steps, if necessary. Given the fundamental nature of the objectives of independence and integrity pursued by that provision, and the general nature of the duty imposed on officials and other staff, Article 11a of the Staff Regulations must be given a wide scope, covering any circumstance which, in the light of the position held by him and of the specific circumstances of the matter, must reasonably be understood by the person concerned as being likely to be seen by third parties as a possible source of impairment of his independence. In that respect, the independence of officials and other staff in relation to third parties must not be assessed solely from a subjective point of view. It also requires them to avoid, particularly in the management of public funding, any conduct likely to impair the image of the institutions, on an objective view, and to undermine the confidence which the institutions should inspire in the public. Moreover, it is of little relevance that the institution concerned did not, by definition, suffer any financial loss as a result of the breaches in question, since the obligations imposed on officials and other staff under Articles 11a and 12b of the Staff Regulations are also designed to preserve the independence and image of the institutions. (see paras 68, 70, 80) See: 11 September 2002, T-89/01 Willeme v Commission, para. 47; 3 February 2005, T-137/03 Mancini v Commission, para. 31

Article 12b of the Staff Regulations, applicable to members of the contract staff under Article 3a of the Conditions of Employment of Other Servants pursuant to Articles 11 and 81 of those Conditions of Employment, requires officials and other staff to obtain permission if they wish to engage in an outside activity, whether paid or unpaid. That obligation applies across the board, without any need to make a distinction based on the nature or scale of the activity. Furthermore, the obligation to obtain permission to engage in an outside activity applies not just to officials and other staff wishing, in the course of their career, to engage in such an activity, but also to recruits wishing to continue an activity which they were engaged in prior to being recruited and which becomes ‘outside’ from the point when they take up their post. (see para. 72) See: 19 March 1998, T-74/96 Tzoanos v Commission, para. 66; 16 January 2003, T-75/00 Fichtner v Commission, para. 31