JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

24 April 2008

Case F-74/06

Pavlos Longinidis

v

European Centre for the Development of Vocational Training (Cedefop)

(Civil service – Members of the temporary staff – Reassignment – Appeals Committee – Composition and internal rules of procedure – Unfair behaviour – Dismissal – Statement of reasons – Manifest error of assessment – Misuse of powers)

Application: brought under Articles 236 EC and 152 EA, in which Mr Longinidis seeks annulment of the decision of the Directorate of Cedefop of 30 November 2005 terminating his indefinite term temporary contract, of the decision of the Directorate of Cedefop of 10 March 2006 refusing his request to suspend enforcement of that decision, of the decision of the Directorate of Cedefop of 9 December 2005 reassigning him to the post of advisor to the Directorate, of the decision of Cedefop’s Appeals Committee of 24 May 2006 rejecting the applicant’s complaint seeking annulment of the decisions to dismiss and reassign him referred to above, of the decision of the Directorate of Cedefop of 11 November 2005 amending the composition of the Appeals Committee, of the decision of Cedefop’s Appeals Committee of 14 November 2005 amending its rules of procedure, of the decision of Cedefop’s Appeals Committee of 10 March 2006 refusing the applicant’s complaint against the two last decisions, of the decision of the Directorate of Cedefop of 28 April 2006 rejecting the applicant’s request that the deputy director of Cedefop should be excluded from leading the administrative investigation concerning him, and of the decision of Cedefop’s Appeals Committee of 9 March 2006 relating to the complaint lodged by Mrs C., a member of Cedefop’s temporary staff.

Held: The action is dismissed as partly inadmissible and partly unfounded. Each party is to bear its own costs.

Summary

1. Officials – Members of the temporary staff – Termination of a contract concluded for an indefinite period – Obligation to state reasons – Scope

(Staff Regulations, Art. 25, second para.; Conditions of Employment of Other Servants, Arts 11 and 47(c))

2. Officials – Members of the temporary staff – Termination of a contract concluded for an indefinite period – Administration's discretion

(Conditions of Employment of Other Servants, Arts 47(c) and 49(1))

3. Officials – Organisation of departments – Assignment of staff

(Staff Regulations, Art. 7)

1. There is no overriding reason to exclude members of the temporary staff from protection against unjustified dismissal, particularly when their contract is for an indefinite period or, if it is a fixed-term contract, they are dismissed before the expiry of the term. In order to ensure a sufficient degree of protection to that effect, the persons concerned must be able to determine whether their legitimate interests have been respected or damaged and to assess whether it would be appropriate to initiate judicial proceedings, and the courts must be able to exercise their powers of review, which amounts to recognising an obligation on the part of the competent authority to state the reasons for its decisions.

In respect of a decision to dismiss a member of the temporary staff employed under a contract for an indefinite period, it is particularly important that the reasons on which the decision is based should, as a general rule, be set out in writing, preferably in the text of the decision itself. It is that measure alone, the legality of which must be assessed as at the date on which it was adopted, which gives tangible form to the institution’s decision. However, the obligation to state the reasons for the dismissal may also be regarded as fulfilled if the person concerned was duly informed, in the course of meetings with his superiors, of those reasons and if the decision of the authority authorised to conclude contracts of engagement was adopted shortly after those meetings. That authority may also, if necessary, supplement the statement of reasons in its reply to a complaint lodged by the person concerned.

The authority authorised to conclude contracts of engagement has a wide discretion in respect of dismissal, and therefore the Community judicature’s power of review is restricted to verifying that there has been no manifest error of assessment or misuse of power.

(see paras 49, 51, 84)

See:

T-233/99 Dejaiffe v OHIM [2000] ECR-SC I‑A‑277 and II‑1267, para. 53; T-7/01 Pyres v Commission [2003] ECR-SC I‑A‑37 and II‑239, para. 50

F-1/05 Landgren v ETF [2006] ECR-SC I‑A‑1‑123 and II‑A‑1‑459, currently the subject of an appeal before the Court of First Instance, T‑404/06 P, paras 73 to 75 and 79

2. In the light of the broad discretion enjoyed by the authority authorised to conclude contracts of engagement, where there is wrongful conduct capable of justifying the dismissal of a member of the temporary staff, there is no obligation on that authority to initiate disciplinary proceedings against him rather than using the option of unilaterally terminating the contract provided for in Article 47(c) of the Conditions of Employment of Other Servants. It is only if the authority intends to dismiss a member of the temporary staff without notice, in a serious case of failure to comply with his obligations, that the disciplinary procedure provided for in Annex IX to the Staff Regulations of Officials, which applies by analogy to members of the temporary staff, should be initiated, as provided for in Article 49(1) of the Conditions of Employment of Other Servants. Moreover, there is nothing to stop the administration from initiating disciplinary proceedings even after terminating the contract of a member of the temporary staff, with due notice, if it subsequently becomes clear that the complaints against the person concerned are sufficiently serious to initiate such a procedure.

(see paras 115 and 116)

3. The principle that the post to which an official is assigned should correspond to his grade calls, in the event of a change in an official’s duties, for a comparison, not between his present and previous duties, but between his present duties and his grade.

Furthermore, for a reassignment to affect the rule that the post is to correspond to the grade, it is not sufficient that it should bring about a change and even any diminution of the official’s responsibilities, but it is necessary that, taken together, his new responsibilities should clearly fall short of those corresponding to his grade and post, taking account of their character, their importance and their scope.

(see paras 142 and 143)

See:

19/87 Hecq v Commission [1988] ECR 1681, para. 7

T‑59/91 and T‑79/91 Eppe v Commission [1992] ECR II‑2061, para. 49; T‑78/96 and T‑170/96 W v Commission [1998] ECR‑SC I‑A‑239 and II‑745, para. 104; T‑51/01 Fronia v Commission [2002] ECR-SC I‑A‑43 and II‑187, para. 53; T‑325/02 Soubies v Commission [2004] ECR-SC I‑A‑241 and II‑1067, para. 55