JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

3 December 2014

DG

v

European Union Agency for Network and Information Security (ENISA)

‛Civil service — Temporary staff — Termination of contract — No statement of reasons — Failure to comply with the reports procedure — Manifest error of assessment’

Application:

under Article 270 TFEU, in which DG seeks, first, the annulment of the decision of the European Union Agency for Network and Information Security (ENISA) of 31 January 2013 terminating her employment contract and, secondly, her reinstatement, the payment of her financial benefits from the effective date of the termination of her contract until her reinstatement and compensation in respect of the non-material harm which she considers herself to have suffered.

Held:

The action is dismissed. DG is to bear her own costs and is ordered to pay the costs incurred by the European Union Agency for Network and Information Security.

Summary

Actions brought by officials — Pleas in law — Misuse of powers — Definition — Burden of proof and production of evidence Actions brought by officials — Pleas in law — Manifest error of assessment — Definition — Burden of proof Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Administration’s discretion — Administration’s duty to have regard for the interests of staff — Scope — Obligation to consider the possibility of redeploying the staff member concerned — None (Conditions of Employment of other Servants, Art. 47(c)(i))

There is no misuse of powers unless there is objective, relevant and consistent evidence which makes it possible to establish that the contested act pursued an aim other than that ascribed to it by the applicable provisions of the Staff Regulations. In this connection, it is not enough for the applicant to rely on certain facts in support of his claims; he must also adduce evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability, failing which the material accuracy of the other party’s claims cannot be called into question. (see paras 31, 32) See: Judgment in Skareby v Commission, F‑46/06, EU:F:2008:26, paras 156 and 157 An error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings upheld by the administration in its decision implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid. (see para. 44) See: Judgments in AJ v Commission, F‑80/10, EU:F:2011:172, paras 34 and 35; Eklund v Commission, F‑57/11, EU:F:2012:145, para. 51, and order in Mészáros v Commission, F‑22/13, EU:F:2014:189, para. 52 With regard to the termination of a contract for an indefinite period held by a member of the temporary staff, the competent authority has, pursuant to Article 47(c)(i) of the Conditions of Employment of Other Servants and subject to the period of notice contained in the contract, a broad discretion and the judicial review exercised by the European Union judicature must therefore be limited to whether there has been a manifest error or a misuse of powers. In that regard, the duty of care cannot warrant an interpretation of Article 47(c)(i) of the Conditions of Employment under which the competent authority must examine, prior to terminating the employment of a member of the temporary staff employed on the basis of a contract for an indefinite period, whether that member of staff could be redeployed to another existing post or a post about to be created. (see paras 56, 57) See: Judgment in ETF v Landgren, T‑404/06 P, EU:T:2009:313, para. 162 and the case-law cited therein Judgments in ETF v Schuerings, T‑107/11 P, EU:T:2013:624, para. 81, and Commission v Macchia, T‑368/12 P, EU:T:2014:266, para. 57

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

3 December 2014

DG

v

European Union Agency for Network and Information Security (ENISA)

‛Civil service — Temporary staff — Termination of contract — No statement of reasons — Failure to comply with the reports procedure — Manifest error of assessment’

Application:

under Article 270 TFEU, in which DG seeks, first, the annulment of the decision of the European Union Agency for Network and Information Security (ENISA) of 31 January 2013 terminating her employment contract and, secondly, her reinstatement, the payment of her financial benefits from the effective date of the termination of her contract until her reinstatement and compensation in respect of the non-material harm which she considers herself to have suffered.

Held:

The action is dismissed. DG is to bear her own costs and is ordered to pay the costs incurred by the European Union Agency for Network and Information Security.

Summary

Actions brought by officials — Pleas in law — Misuse of powers — Definition — Burden of proof and production of evidence Actions brought by officials — Pleas in law — Manifest error of assessment — Definition — Burden of proof Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Administration’s discretion — Administration’s duty to have regard for the interests of staff — Scope — Obligation to consider the possibility of redeploying the staff member concerned — None (Conditions of Employment of other Servants, Art. 47(c)(i))