JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

6 March 2013

Case F‑41/12

Séverine Scheefer

v

European Parliament

(Civil service — Temporary staff — Termination of a temporary staff contract for an indefinite period — Legitimate reason)

Application: Brought by Ms Scheefer under Article 270 TFEU, applicable to the EAEC treaty pursuant to Article 106a thereof, seeking, in substance, annulment of the Parliament’s decision of 20 June 2011 to terminate the applicant’s temporary staff contract for an indefinite period, together with an order that the Parliament pay damages.

Held: The application is dismissed. Ms Scheefer is ordered to bear her own costs and to pay those of the European Parliament.

Summary

1. Officials — Decision adversely affecting an official — Obligation to state reasons — Scope

(Staff Regulations, Art. 25)

2. Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Administration’s discretion — Scope

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

3. Officials — Members of the temporary staff — Recruitment — Staff engaged under Article 2(a) of the Conditions of Employment of Other Servants — Internal regulation of the Parliament making the permanent recruitment of such staff subject to a selection test — Termination of the contract of a member of the temporary staff following her failure in the selection test — Lawfulness — Contract in question having previously been reclassified as a contract for an indefinite period pursuant to a judgment of the Tribunal — No effect

(Conditions of Employment of Other Servants, Art. 2(a); Internal Rules of the European Parliament on the Recruitment of Officials and Other Servants)

1. The grounds for a decision with adverse effect may be implicit, on condition that they enable the person concerned to know the reasons for which a the decision was made and provide the competent court with sufficient material for it to exercise its power of review.

A statement of reasons is sufficient provided that it sets out the facts and legal considerations having decisive importance in the context of the decision, with the result that the administration is not required to give the grounds of its decision.

In addition, the alleged inadequacy of the statement of reasons can be remedied by explanations given during the proceedings before the Tribunal.

Finally, the obligation to state the reasons for an act with adverse effect may be regarded as fulfilled if the person concerned was duly informed, in the course of meetings with his superiors, of those reasons. However, a prior meeting with superiors is not required in order to comply with the obligation to state reasons or the duty of transparency where the decision to dismiss states sufficient reasons.

(see paras 29-32)

See:

8 February 2007, C‑3/06 P Groupe Danone v Commission, para. 46

9 July 2008, T‑304/06 Reber v OHIM — Chocoladefabriken Lindt & Sprüngli (Mozart), para. 55

26 October 2006, F‑1/05 Landgren v ETF, para 79; 29 September 2011, F 80/10 AJ v Commission, para. 117

13 April 2011, T‑262/09 Safariland v OHIM — DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR), para. 92

2. Article 47(c) of the Conditions of Employment of Other Servants confers a broad discretion on the authority authorised to conclude contracts of employment to terminate a contract for an indefinite period of a member of the temporary staff.

That Article does not prohibit the use of contracts of indefinite duration, in so far as a temporary situation may continue for an indefinable period of time, and such a contract does not, in any event, offer the beneficiary the stability of appointment as an official, since it may be terminated for legitimate reasons and provided that a period of notice is given, in accordance with Article 47(c)(i) of the Conditions.

In that regard, a ground based on the absence of available posts in the establishment plan appended to the budget of the institution constitutes a legitimate ground in the light of which it was entitled to take the contested decision on the basis of Article 47(c)(i).

(see paras 36-37, 39)

See:

8 September 2009, T‑404/06 P ETF v Landgren, para. 162 and the case-law cited

13 April 2011, F‑105/09 Scheefer v Parliament, para. 56

7 July 2011, T‑283/08 P Longinidis v Cedefop, para. 84

3. It is apparent from Article 7(2) and (3) of the Internal Rules of the European Parliament on the Recruitment of Officials and Other Servants that, in the absence of candidates shortlisted following a competition, members of the temporary staff hired pursuant to Article 2(a) of the Conditions of Employment of Other Servants can be permanently recruited only following a selection test. However, a selection procedure based on qualifications and tests for the recruitment of a temporary administrator-doctor, although not laid down by the Conditions, must be considered to form an integral part of the formalities which the Parliament was under an obligation to observe as employer or future employer. The Parliament had to follow that procedure, particularly as it had to observe equality of treatment between the candidates of the selection procedure, in particular the shortlisted candidates who, as a result of their success, were eligible to take up the vacant posts.

In relation to a temporary administrator-doctor whose contract had been reclassified as a contract for an indefinite period pursuant to a judgment of the Tribunal, the fact of not having been included on the list of candidates shortlisted following the selection procedure and of not being able to seek to be employed pursuant to Article 7(2) or the first indent of Article 7(3) of the Internal Rules in one of the posts to be filled constitutes a decisive factor that the Parliament could not overlook, independently of its past mistake as to the classification of the applicant’s contract.

In addition, it is not disputed that an institution may terminate the contract for an indefinite period of a member of the temporary staff on the ground that they were not included on a list of candidates shortlisted following a competition or other selection test. In this regard, the fact that a candidate who is a member of the temporary staff carries out duties similar to those for which a competition has been organised does not prevent the institution from taking account of the failure of that candidate in that competition in order to put an end to the contract.

(see paras 46-48, 58, 61)

See:

28 January 1992, T‑45/90 Speybrouck v Parliament, para. 68; 5 December 2002, T‑70/00 Hoyer v Commission, paras 44 and 47