JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

30 January 2013

Case F‑87/11

Kari Wahlström

v

European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)

(Civil service — Member of the temporary staff — Non-renewal of a fixed-term contract — Article 8 of the Conditions of Employment — Procedure — Breach of essential procedural requirements — Jurisdiction)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Wahlström seeks annulment of the decision of the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) of 10 December 2010, notified on 16 December 2010, not to extend the applicant’s contract as a member of the temporary staff.

Held: The decision is annulled. Frontex is to bear its own costs and is ordered to pay the costs incurred by the applicant.

Summary

1. Actions brought by officials — Time-limits — Point from which time starts to run — Notification — Concept — Decision sent by registered letter with acknowledgment of receipt — Presumption of notification

(Staff Regulations, Arts 90 and 91)

2. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Frontex internal directive on contract renewal — Legal effects

(Conditions of Employment of Other Servants, Art. 8)

3. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Procedure — Breach of essential procedural requirements — Irregularity capable of entailing annulment — Conditions

(Conditions of Employment of Other Servants, Art. 8)

1. Where a decision is notified by registered letter with acknowledgement of receipt, its addressee is deemed to have been notified of that decision on the basis of the signature which he places on the acknowledgement of receipt. However, it may happen that the acknowledgment of receipt of a registered letter cannot be signed by the recipient, where that person, who is not at his place of residence at the time when the postman calls, fails to take any action and, in particular, does not collect the letter within the period for which the postal service keeps letters.

In such a case, the decision must be regarded as having been duly notified to the person to whom it is addressed on expiry of the period for which the postal service keeps the letter. If it were accepted that, by failing to take any action and, in particular, by not collecting the registered letter within that period, the addressee could prevent the proper notification of a decision by registered letter, first, the safeguards offered by that method of notification would be considerably weakened, notwithstanding the fact that it constitutes a particularly reliable and objective method of notification of administrative measures. The administration would be required to use other methods of notification, which are either less reliable, such as notification by standard letter, or expensive, if not disproportionate, such as service by writ. Second, the addressee would have a certain discretion in establishing the starting point of the period for initiating proceedings, although such a period may not be left to the discretion of the parties and must meet the requirements of legal certainty and the sound administration of justice.

However, the presumption that the addressee has received notification of the decision on expiry of the period for which a registered letter is usually held by the postal service is not absolute. Its application is subject to the provision of evidence by the administration of proper notification by registered letter, in particular through the leaving of a notice of attempted delivery at the latest address supplied by the addressee. Furthermore, that presumption is not irrebuttable, as the addressee may seek to prove that he was prevented, in particular by illness or by a case of force majeure beyond his control, from being apprised in fact of the notice of attempted delivery.

(see paras 38-40)

See:

16 December 2010, F‑25/10 AG v Parliament, paras 41, 43 and 44

2. A decision of an EU institution or body which is communicated to all staff and seeks to ensure that the officials and members of the staff concerned are treated identically, in an area in which that institution or body has a broad discretion conferred by the Staff Regulations is an internal directive and must, as such, be regarded as an indicative rule of conduct which the administration imposes on itself and from which it may not depart without stating the reasons which have led it to do so, since otherwise the principle of equal treatment would be infringed.

Guidelines which set out a certain number of rules concerning the renewal of contracts of members of the temporary staff within the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, constitute such an internal directive.

(see paras 56, 57)

See:

9 July 1997, T‑92/96 Monaco v Parliament, para. 46

7 July 2009, F‑99/07 and F‑45/08 Bernard v Europol, para. 79 and the case-law cited

3. Where, in an action against a decision of the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union not to extend the contract of a member of the temporary staff, the lack of competence found concerns not the actual person who took the contested decision, namely the Executive Director, but the persons who had to be consulted, namely the reporting officer and the countersigning officer, in the procedure for the renewal of the contract of the member of the temporary staff in according with the Agency’s Guidelines, such a procedural irregularity could result in the annulment of the contested decision only if it is shown that that procedural irregularity was capable of affecting the content of the decision.

That is the case here, since it cannot be ruled out that, had the reporting officer and the countersigning officer been properly identified and called upon to express their views of the professional performance of the member of the temporary staff concerned, they might have made different or differently-reasoned proposals as regards the renewal of the latter’s contract.

(see paras 58, 59)

See:

29 October 1980, 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission, para. 47

9 March 1999, T‑212/97 Hubert v Commission, para. 53