ORDER OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

15 April 2011

Joined Cases F-72/09 and F-17/10

Simone Daake

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Civil service — Member of the contract staff — Recruitment — Former member of the temporary staff recruited as a member of the contract staff — Memo reminding of the date of the end of the contract — Acts adversely affecting an official — Manifestly inadmissible forms of order sought — Decision refusing to renew the contract — Manifest error of assessment — Damages — Forms of order sought manifestly without any basis in law)

Application: brought under, respectively, Articles 236 EC and 152 EA and Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Daake seeks, in substance, annulment of OHIM’s memo of 12 September 2008 informing her that her contract as a member of the contract staff would expire on 31 October 2008 and would not be renewed, and also an order that OHIM pay her damages.

Held: The applicant’s actions are dismissed as manifestly inadmissible in part and manifestly without any basis in law in part. The applicant is ordered to pay all the costs.

Summary

1. Officials — Actions — Acts adversely affecting an official — Concept — Letter addressed to a member of the contract staff reminding him of the date of expiry of his contract of employment — Not included

(Staff Regulations Art. 90(2))

2. Officials — Actions — Acts adversely affecting an official — Concept — Decision not to renew a contract — Included

(Staff Regulations Art. 90(2))

3. Officials — Member of the contract staff — Recruitment — Renewal of a contract of indefinite duration

(Conditions of Employment of Other Servants, Art. 88)

4. Officials — Actions — Complaint against the decision rejecting a claim for damages — Time-limit — Claim barred by lapse of time — Reopening — Condition — New elements of law or of fact

(Staff Regulations Art. 90(1))

1. Only measures producing binding legal consequences liable to affect the applicant’s interests directly and immediately by significantly changing his legal situation constitute acts or decisions which may be the subject of an action for annulment.

Consequently, a letter from an institution that merely reminds a member of the contract staff of the terms of his contract relating to the date of expiry of the contract and containing no new element by reference to those terms does not constitute an act adversely affecting that member of staff.

(see paras 34, 35)

See:

9 July 1987, 329/85 Castagnoli v Commission, para. 11; 14 September 2006, C-417/05 P Commission v Fernández Gómez, paras 45 to 47

19 October 1995, T-562/93 Obst v Commission, para. 23

2. Where a contract may be renewed, a decision by the administration not to renew the contract constitutes an act adversely affecting the person concerned within the meaning of Article 90(2) of the Staff Regulations, distinct from the contract in question and capable of forming the subject-matter of a complaint, and indeed of an action, within the time-limits laid down in the Staff Regulations. Such a decision, which is taken following a reconsideration of the interest of the service and of the situation of the person concerned, contains a new element by reference to the initial contract and cannot be regarded as merely confirming it.

(see para. 36)

See:

15 October 2008, T-160/04 Potomianos v Commission, para. 21

3. Review by the European Union judicature of a decision not to renew a contract of a member of the contract staff, which constitutes an act adversely affecting him, must be confined to ascertaining that there has been no manifest error of assessment in the evaluation of the interest of the service that justified that decision or misuse of powers and also that there has been no breach of the duty to have regard for the welfare of the member of staff concerned that is borne by an administration where it must rule on the renewal of a contract between it and one of its staff.

(see para. 41)

See:

27 November 2008, F-35/07 Klug v EMEA, para. 68

4. Provided that an express decision rejecting a claim for damages does not contain, by comparison with the earlier implied rejection decision, a reconsideration of the situation of the person concerned by reference to new elements of law or of fact, that decision constitutes an act that merely confirms the implied rejection decision and therefore does not cause time to begin to run anew for the purpose of lodging a complaint.

(see para. 52)

See:

20 March 1984, 75/82 and 117/82 Razzouk and Beydoun v Commission, para. 12