Since a European Union Court before which an action for annulment has been brought cannot rule ultra petita, it is not entitled either to redefine the principal subject-matter of the action or to raise a plea of its own motion except in particular cases where the public interest requires its intervention. Within the framework of the dispute as defined by the parties, the Union Court, whilst it must rule only on the application submitted by the parties, cannot confine itself to the arguments put forward by the parties in support of their claims or it may be forced to base its decision on erroneous legal considerations.

Even if indefinite contracts are different, in terms of security of tenure, from fixed-term contracts, it cannot be denied that EU civil service staff employed on the basis of an indefinite contract must be aware of the temporary nature of their engagement and the fact that it does not confer on them any guarantee of employment.

However, Article 2(a) of the Conditions of Employment provides that staff engaged to fill a post which has been classified as temporary are regarded as ‘temporary staff’, whereas the Staff Regulations give officials a greater security of tenure since the cases in which their employment may be terminated definitively against their will are strictly limited.

By stating that, before terminating the contract, under Article 47(c)(i) of the Conditions of Employment of Other Servants, of a staff member employed on the basis of a contract of indefinite duration, the competent authority must consider whether that staff member could be reassigned to another post or to a post to be created shortly, the Civil Service Tribunal imposed on that authority an obligation not provided for in the Conditions of Employment.

Even if the authority authorised to conclude contracts of employment enjoys a broad discretion, when applying Article 47(c)(i) of the Conditions of Employment of Other Servants, to determine whether a particular circumstance or fact justifies terminating the employment of a member of staff holding an indefinite contract, the competent authority must take account of the interests of the service, but also, in order to fulfil its duty of care, of the interest of the staff member concerned. In that regard, even if it is true that the competent authority enjoys a broad discretion in assessing the interests of the service and that, consequently, review by the Union Courts must be limited to the question whether the authority concerned remained within reasonable limits and did not use its power of assessment in a manifestly erroneous way, when it takes a decision concerning the situation of a staff member the administration’s duty of care, which reflects the balance of reciprocal rights and obligations between the official authority and its staff, requires it to take into consideration all the factors which may affect its decision and, in particular, the interests of the staff member concerned.

However, in an action for annulment of a decision terminating the indefinite contract of a member of the temporary staff, by having weighed up the interests of the service and those of the staff member concerned only after having established the competent authority’s obligation to consider first whether the staff member might be reassigned, and by having stated that it was in the course of that consideration that the interests of the service, which required the recruitment of the most suitable person for the existing post or the post to be created shortly, should be weighed against the interests of the staff member, the Civil Service Tribunal failed to take account of the interests of the service when it laid down the principle that the reduction of the scope of an agency’s activities constituted a valid reason for terminating the employment of the staff member only if the agency did not have a post to which the staff member could be reassigned.

Nevertheless, the existence of internal selection procedures specific to the agency in question, which are applied when posts became vacant or there are internal transfers, may be an element of staff management policy particularly suited to the specialised nature of the agency’s tasks, leading it, in the interests of the service, to encourage staff affected by a reduction in activity to take part in such procedures in order to find a new post within the agency. Furthermore, supporting the staff member in order to help him to find a new post within the agency by following those standard selection procedures may be regarded as taking account of his interests and, consequently, as fulfilling the duty of care.

Similarly, the fact that the competent authority considered the options for transferring the staff member threatened with termination of his employment to another agency or institution, or the special context in which the Union’s agencies operate generally, might constitute further relevant factors in the balancing of the staff member’s interests against those of the service.

(see paras 91, 93, 94, 96, 97)

See:

T‑404/06 P ETF v Landgren [2009] ECR II‑2841, paras 215 and 216