JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

21 May 2014

European Commission

v

Luigi Macchia

‛Appeal — Civil service — Temporary staff — Fixed-term contract — Decision not to renew — Jurisdiction of the Civil Service Tribunal — First paragraph of Article 8 of the CEOS — Duty to have regard for the welfare of staff — Concept of ‘interests of the service’ — Prohibition on ruling ultra petita — Principle of the right to be heard’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 June 2012 in Case F‑63/11 Macchia v Commission [2012] ECR-SC, seeking to have that judgment set aside.

Held:

The judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 June 2012 in Case F‑63/11 Macchia v Commission is set aside in so far as it annulled the decision of the Director General of the European Anti-Fraud Office (OLAF) of 12 August 2010 rejecting the request for an extension of Luigi Macchia’s contract as a member of the temporary staff and, consequently, rejected as premature the request for Mr Macchia to be reintegrated within OLAF and the application for compensation in respect of the material harm suffered. The remainder of the appeal is dismissed. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed-term contract — Obligation laid down by the Civil Service Tribunal to consider the possibility of reassigning the staff member concerned — Obligation not provided for in the Conditions of Employment of Other Servants (Conditions of Employment of Other Servants, Arts 2(a), 8, first para., and 47(b)(i)) Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the welfare of staff — Taking into consideration of the interests of the staff member concerned and those of the service (Conditions of Employment of Other Servants, Arts 2(a), 8, first para., and 47(b)(i))

The possibility of renewing the contract of a member of the temporary staff is merely an option left to the discretion of the competent authority, since the institutions have a broad discretion to organise their departments in keeping with the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service. In that regard, the first paragraph of Article 8 of the Conditions of Employment of Other Servants of the European Union provides that temporary staff to whom Article 2(a) of the Conditions of Employment applies may be engaged for a fixed or indefinite period, and Article 2(a) provides that ‘temporary staff’ means staff engaged to fill a post which has been classified as temporary. Consequently, it cannot be denied that EU civil service staff employed on the basis of a fixed-term 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. On the other hand, the Staff Regulations give officials a greater security of tenure since the cases in which they may be definitively dismissed against their will are strictly limited. The expression ‘established post on the staff of one of the institutions’ within the meaning of Article 1a(1) of the Staff Regulations covers only those posts expressly prescribed as ‘permanent’, or described in a similar manner in the budget, given that any interpretation to the contrary would increase to a considerable extent the number of permanent posts authorised by the budgetary authority, thus stultifying both the powers and the intentions of the budgetary authority. It follows that by making it an obligation first to consider redeploying the staff member concerned, the Civil Service Tribunal altered the nature of employment as a member of the temporary staff under a fixed-term contract as defined by the Conditions of Employment of Other Servants of the European Union. (see paras 49, 51, 52, 54) See: C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, para. 38 T-13/95 Kyrpitsis v ESC [1996] ECR-SC I-A-167 and II-503, para. 52; T-160/04 Potamianos v Commission [2008] ECR-SC I-A-2-75 and II-A-2-469, para. 30; T-404/06 P ETF v Landgren [2009] ECR II-2841, para. 162 and the case-law cited therein; T-325/09 P Adjemian and Others v Commission [2011] ECR II-6515, para. 77 When the competent authority takes a decision concerning the situation of a staff member, it must take into consideration all the factors which may affect its decision, that is to say, not just the interests of the service, but also, in particular, those of the staff member concerned. That follows from the administration’s duty to have regard for the welfare of its staff, which reflects the balance of the reciprocal rights and obligations established by the Staff Regulations and, by analogy, the Conditions of Employment of Other Servants, in the relationship between the official authority and its staff. In any event, in view of the broad discretion conferred on the institutions in that context, review by the courts is limited to determining that there has been no manifest error or misuse of power. However, in an action for annulment of a decision not to renew the fixed-term 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 redeployed, the Civil Service Tribunal failed to take account of the interests of the service when it laid down the principle that references to budgetary scope and to the applicant’s merits and abilities did not constitute valid reasons for deciding not to renew the fixed-term contract. (see paras 49, 56) See: Klinke v Court of Justice, para. 38 Kyrpitsis v ESC, para. 52; Potamianos v Commission, para. 30; ETF v Landgren, para. 162 and the case-law cited therein

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

21 May 2014

European Commission

v

Luigi Macchia

‛Appeal — Civil service — Temporary staff — Fixed-term contract — Decision not to renew — Jurisdiction of the Civil Service Tribunal — First paragraph of Article 8 of the CEOS — Duty to have regard for the welfare of staff — Concept of ‘interests of the service’ — Prohibition on ruling ultra petita — Principle of the right to be heard’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 June 2012 in Case F‑63/11 Macchia v Commission [2012] ECR-SC, seeking to have that judgment set aside.

Held:

The judgment of the European Union Civil Service Tribunal (Third Chamber) of 13 June 2012 in Case F‑63/11 Macchia v Commission is set aside in so far as it annulled the decision of the Director General of the European Anti-Fraud Office (OLAF) of 12 August 2010 rejecting the request for an extension of Luigi Macchia’s contract as a member of the temporary staff and, consequently, rejected as premature the request for Mr Macchia to be reintegrated within OLAF and the application for compensation in respect of the material harm suffered. The remainder of the appeal is dismissed. The case is referred back to the Civil Service Tribunal. The costs are reserved.

Summary

Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed-term contract — Obligation laid down by the Civil Service Tribunal to consider the possibility of reassigning the staff member concerned — Obligation not provided for in the Conditions of Employment of Other Servants (Conditions of Employment of Other Servants, Arts 2(a), 8, first para., and 47(b)(i)) Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the welfare of staff — Taking into consideration of the interests of the staff member concerned and those of the service (Conditions of Employment of Other Servants, Arts 2(a), 8, first para., and 47(b)(i))