ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

17 December 2015

Antony Di Marzio

v

Council of the European Union

‛Civil service — Member of the contract staff — Function group I — Reclassification of a contract into a contract as a member of the temporary staff for an indefinite period at Grade AST 3, AST 4 or AST 5 or into a contract as a member of the contract staff for an indefinite period in function group III — Articles 2, 3a, 3b, 80 and 88 of the Conditions of Employment of Other Servants — Obligation to state reasons — Manifest error of assessment — Principle of sound administration — Duty to have regard for the welfare of officials — Action manifestly lacking any foundation in law — Article 81 of the Rules of Procedure’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which Mr Di Marzio seeks, essentially, annulment of the decision of the Council of the European Union dated 11 April 2014 by which it refused his request to reclassify his contract as a member of the contract staff in function group I into a contract as a member of the temporary staff for an indefinite period or a contract as a member of the contract staff for an indefinite period in function group III, together with compensation for the material and non-material damage he claims to have suffered.

Held:

The action is dismissed as manifestly unfounded. Mr Di Marzio shall bear his own costs and is ordered to pay the costs incurred by the Council of the European Union.

Summary

Officials — Members of the contract staff — Member of the contract staff in function group I — Reclassification of the contract into a contract as a member of the contract staff for an indefinite period in function group II, III or IV — Not permissible

Officials — Members of the contract staff — Member of the contract staff in function group I — Reclassification of the contract into a contract of a member of the temporary staff for an indefinite period at grade AST 3, AST 4 or AST 5 — Conditions

Under Article 81 of the Rules of Procedure of the Civil Service Tribunal, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may give a decision by reasoned order without taking further steps in the proceedings. In particular, the dismissal of an action by reasoned order made on the basis of Article 81 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing, if, upon reading the case-file, the Tribunal, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the manifest inadmissibility of the application or that it is manifestly lacking any foundation in law and further considers that the holding of a hearing would be unlikely to provide new evidence capable of affecting that belief. (see paras 23, 24) See: Orders of 10 July 2014 in Mészáros v Commission, F‑22/13, EU:F:2014:189, paragraph 39, and 23 April 2015 in Bensai v Commission, F‑131/14, EU:F:2015:34, paragraph 28

The obligation to state reasons is an essential procedural requirement which is distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. Claims and arguments intended to deny that a measure is well founded are thus of no effect in the context of a plea alleging the lack or inadequacy of a statement of reasons. (see para. 37) See: Order of 16 September 2013 in Bouillez v Council, T‑31/13 P, EU:T:2013:521, paragraph 20

Contracts of employment relating to the posts referred to in Article 2(a) of the Conditions of Employment of Other Servants may, in accordance with the first paragraph of Article 8 of those conditions, be concluded for an indefinite period. That however is not true of contracts relating to the posts referred to in Article 2(b) of the conditions, as the second paragraph of Article 8 of the conditions requires the duration of such contracts to be limited. Furthermore, there is no reason why, in the light of the tasks carried out by a member of staff and the factual circumstances, the judicature should not legally classify as a contract of employment as temporary staff a contract, formally presented as a contract of employment as contract staff, under which the member of staff has actually taken on duties corresponding to a post included in the list of posts appended to the section of the budget relating to the institution which the budgetary authorities have defined as temporary. In this regard, it is for the member of staff concerned to prove, first, that posts corresponding to the duties which he has actually performed appeared, at the relevant time, in the list of posts appended to the section of the budget relating to the institution concerned and that such posts were available, and secondly, that the duties which he performed as a member of the contract staff corresponded to defined permanent public service duties. In the absence of any specific provision in the Conditions of Employment of Other Servants as to the manner of proof, the member of staff concerned may rely on any conclusive evidence to demonstrate that he has performed defined permanent public service duties. (see paras 47-49) See: Judgment of 21 September 2011 in Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraphs 81, 87 and 88