JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

13 June 2012

Case F‑105/11

Hans Davids

v

European Commission

(Civil service — Members of the temporary staff — Temporary staff occupying a permanent post — Non-renewal of a fixed-term contract — Administration’s discretion — Article 8 of the CEOS — Article 4 of the Decision of the Director-General of OLAF of 30 June 2005 on a new policy for the engagement and use of OLAF’s temporary agents — Maximum duration of temporary staff contracts — Abuse of rights)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Davids seeks annulment of the decision of the Director-General of the European Anti-Fraud Office (OLAF) of 25 March 2011 rejecting his request for extension of his temporary staff contract.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Judicial review — Limits

(Conditions of Employment of Other Servants, Arts 8 and 47(1)(b))

2. Officials — Organisation of departments — Assignment of staff — Administration’s discretion — Limits — Interests of the service — Compliance with the principle of assignment to an equivalent post — Judicial review — Limits

(Staff Regulations, Art. 7)

3. Officials — Members of the temporary staff — Engagement — Conclusion of a contract to fill temporarily a permanent post — Conditions

(Staff Regulations, Art. 1a(1); Conditions of Employment of Other Servants, Arts 2(b), 3, 4, 5 and 8, second para.)

4. Officials — Actions — Dispute concerning the contract of a member of the contract staff for auxiliary tasks — Request for that contract to be reclassified as a temporary staff contract — Remedies

(Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants)

5. Officials — Members of the temporary staff — Members of the temporary staff coming under Article 2(a) of the Conditions of Employment of Other Servants — Renewal after the first extension of the contract for a fixed duration — Reclassification of the fixed-term contract as a contract of indefinite duration — Contract staff for auxiliary tasks — Reclassification of the fixed-term contract as a contract of indefinite duration after several renewals — None

(Conditions of Employment of Other Servants, Arts 2(a), 8, first para., and 88)

1. A member of the temporary staff who is the holder of a fixed-term contract does not, in principle, have any right to the renewal of his contract, which is a mere option, subject to the condition that such renewal is consistent with the interest of the service. By contrast with officials, whose security of tenure is guaranteed by the Staff Regulations, members of the temporary staff are subject to different conditions based on the contract of employment entered into with the institution concerned. It is clear from Article 47(1)(b) of the Conditions of Employment of Other Servants that the duration of the employment relationship between an institution and a member of the temporary staff engaged for a fixed period is, necessarily, governed by the conditions laid down in the contract concluded between the parties. Moreover, the administration has a broad discretion with regard to the renewal of a contract. Consequently, review by the Courts must be limited to ascertaining whether, regard being had to the factors and reasons that led the administration to its assessment, it remained within unimpeachable limits and did not manifestly misuse its power. In that context, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken on the basis of that assessment, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the existence of a manifest error is not established if, despite the evidence adduced by the staff member, the disputed assessment may still be accepted as justified and consistent.

(see paras 36-39)

See:

12 December 1996, T‑380/94 AIUFFASS and AKT v Commission, para. 59; 17 October 2002, T‑330/00 and T‑114/01 Cocchi and Hainz v Commission, para. 82; 6 February 2003, T‑7/01 Pyres v Commission, para. 64; 21 September 2004, T‑325/02 Soubies v Commission, para. 50; 12 February 2008, T‑289/03 BUPA and Others v Commission, para. 221

8 May 2008, F‑119/06 Kerstens v Commission, para. 82 and the case-law cited therein; 23 November 2010, F‑8/10 Gheysens v Council, para. 75

2. The administration has a wide discretion to organise its departments to suit the tasks entrusted to it and to assign the staff available to it in the light of such tasks on condition, however, that the staff are assigned in the interest of the service and in conformity with the principle of the equivalence of posts. Consequently, review by the Courts must be limited to ascertaining whether, regard being had to the factors and reasons that led the administration to its assessment, it remained within unimpeachable limits and did not manifestly misuse its power.

(see para. 38)

See:

17 October 2002, T‑330/00 and T‑114/01 Cocchi and Hainz v Commission, para. 82; 21 September 2004, T‑325/02 Soubies v Commission, para. 50

Kerstens v Commission, para. 82 and the case-law cited therein; Gheysens v Council, para. 75

3. It is clear from a combined reading of Article 1a(1) of the Staff Regulations and Articles 2 to 5 of the Conditions of Employment of Other Servants that permanent posts in the institutions are, in principle, intended to be filled by officials and that it is therefore only by way of exception that such posts may be filled by staff covered by the Conditions of Employment of Other Servants. Thus, although Article 2(b) of those Conditions of Employment expressly provides that temporary staff may be engaged to fill a permanent post, it also stipulates that that may occur only temporarily. Moreover, the second paragraph of Article 8 of the Conditions of Employment of Other Servants provides that temporary staff within the meaning of Article 2(b) are not to be engaged for more than four years and their contracts may be renewed not more than once for a maximum period of two years. At the end of that time, they must cease to be employed as temporary staff, either by termination of their employment or by their appointment as officials in accordance with the Staff Regulations. That exception to the principle that permanent posts are to be filled by appointing officials may apply only in order to meet the needs of the service in a given case.

(see para. 41)

See:

21 September 2011, T‑325/09 P Adjemian and Others v Commission, para. 79 and the case-law cited therein

4. A member of the contract staff for auxiliary tasks who considers that, in the light of the tasks allocated to him under his contract, it has wrongly been classified as an auxiliary staff contract and should have been classified as a temporary staff contract, may challenge that contract before the Courts within the prescribed time-limits and at the end of the prior complaint procedure. It is also possible that a member of the contract staff for auxiliary tasks might submit to the administration, after expiry of the time-limits for appealing against his contract, a request that, in the light of the tasks he has actually performed, a period of service formally completed in performance of a contract of employment as auxiliary staff should be recognised as a period of service completed as temporary staff, and that, if his request is rejected, that staff member might bring an action before the Courts against the rejection of his request, as provided for in Articles 90 and 91 of the Staff Regulations.

(see para. 56)

See:

Adjemian and Others v Commission, para. 88

5. The Courts of the Union have the power to reclassify a contract only where the legislature so provides. That is why, since the first paragraph of Article 8 of the Conditions of Employment of Other Servants provides that the contracts of temporary staff to whom Article 2(a) of the Conditions of Employment applies may be renewed not more than once for a fixed period, any further renewal being for an indefinite period, that reclassification should apply automatically. As regards the contracts of contract staff for auxiliary tasks, Article 88 of the Conditions of Employment of Other Servants, which governs their duration, does not contain any provision requiring, as the first paragraph of Article 8 of the Conditions of Employment does for temporary staff contracts, that a fixed-term contract must be transformed into a contract of indefinite duration if it is renewed more than once.

(see para. 57)

See:

13 April 2011, F‑105/09 Scheefer v Parliament, para. 60