JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

19 February 2013

Case F-17/11

BB

v

European Commission

(Civil service — Member of the contract staff — Non-renewal of a fixed-term contract — Action for annulment — Action for damages)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby BB seeks, first, annulment of the decision of the authority authorised to conclude contracts of employment of the European Commission not to renew his contract as a member of the contract staff, implicit in the note of 28 April and communicated orally on 7 May 2010, and also of the decision rejecting his complaint; and, second, damages for the material and non-material harm caused to him.

Held: The action is dismissed. The Commission is to bear its own costs and is ordered to pay one third of the costs incurred by the applicant. BB is ordered to bear two thirds of his costs.

Summary

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

(Conditions of Employment of Other Servants, Art. 85(1))

2. Officials — Member of the contract staff — Administration’s duty to have regard for the welfare of officials and other staff — Principle of sound administration — Scope — Judicial review — Limits

3. Judicial proceedings — Costs — Burden — Taking into account of the requirements of fairness — Order that the successful party pay some of the unsuccessful party’s costs

(Rules of Procedure of the Civil Service Tribunal, Arts 87(1) and 88)

1. A member of the contract staff with a contract of fixed duration does not in principle have any right to have his contract renewed, such renewal being a mere possibility, subject to the condition that renewal is in keeping with the interest of the service.

Unlike officials, whose stable employment is guaranteed by the Staff Regulations, members of the contract staff come under a different set of rules which form the basis of the contract of employment with the institution concerned. It follows from Article 85(1) of the Conditions of Employment of Other Servants that the duration of the employment relationship between an institution and a member of the contract staff referred to in Article 3a of those conditions of employment engaged for a fixed period is governed by the conditions laid down in the contract between the parties.

Although the administration has a wide discretion with respect to the renewal of a contract, the Tribunal, in an action for annulment of an act adopted in the exercise of such discretion, none the less undertakes a review of legality, which has a number of aspects. As regards an application for annulment of a decision not to renew the contract of a member of the contract staff, which constitutes an act adversely affecting the staff member concerned, review by the Courts of the European Union must be limited to ascertaining that there has been no manifest error of assessment in the evaluation of the interest of the service that may have formed the basis of that decision or misuse of powers and to ascertaining that there has been no breach of the duty imposed on the administration to have regard for the welfare of its staff when it must determine whether to renew a contract between it and one of its staff.

It is therefore the task of the Tribunal, in the context of the pleas in law put forward by the applicant, to ascertain whether the administration made a manifest error in assessing the factors on which it relied when adopting the contested decision. In the context of the wide discretion conferred on the administration, establishing that the administration made a manifest error in assessing the facts sufficient to justify annulling the decision taken on the basis of that assessment assumes that the evidence, which it is for the applicant to adduce, is sufficient to render the assessments made by the administration implausible.

(see paras 57-60)

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; 12 February 2008, T-289/03 BUPA and Others v Commission, para. 221

27 November 2008, F-35/07 Klug v EMEA, para. 68; 23 November 2010, F-8/10 Gheysens v Council, para. 75; 15 April 2011, F-72/09 and F-17/10 Daake v OHIM, para. 41; 13 June 2012, F-105/11 Davids v Commission, para. 36; 13 June 2012, F-63/11 Macchia v Commission, paras 47 and 49, under appeal before the General Court of the European Union, Case T-368/12 P

2. The duty to have regard for the welfare of officials other staff and the principle of sound administration mean, in particular, that when it determines the situation of an official or a member of staff, even in the context of the exercise of a wide discretion, the competent authority must take into consideration all the factors likely to determine its decision; in doing so, it must take account not only of the interest of the service but also the interest of the official or member of staff concerned. Precisely because of the extent of the discretion which the institutions have in evaluating the interest of the service, review by the Courts of the European Union must however be limited to the question whether the competent authority remained within reasonable bounds and did not use its discretion in a manifestly incorrect way.

(see para. 61)

See:

Macchia v Commission, para. 50 and the case-law cited

3. Under Article 87(1) of the Rules of Procedure of the Civil Service Tribunal, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 88 of the Rules of Procedure, however, a party, even if successful, may be ordered to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the other party incur costs which are held to be unreasonable or vexatious.

However, the application of Article 88 of the Rules of Procedure is not confined only to situations in which the administration has made an applicant incur unreasonable or vexatious costs. Thus, an institution which is successful must bear its own costs and will be ordered to pay some of the costs incurred by the applicant where its persistence in claiming that the action is inadmissible on the basis of case-law which has no longer been applicable for a number of years, without even attempting to explain its reasons for failing to have regard to the new case-law of the Court of Justice, led the Tribunal to decide, first, that a second exchange of pleadings was necessary and, second, that it was necessary to summon the parties to the hearing so that they might comment on that case-law, which necessarily caused the applicant to incur additional costs of representation that could have been avoided.

(see paras 85, 87-88)

See:

Daake v OHIM