JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

26 June 2013

BU

v

European Medicines Agency (EMA)

‛Civil service — Temporary staff — Non-renewal of a fixed-term contract — Act adversely affecting an official — Request under Article 90(1) of the Staff Regulations — Request for the reclassification of a contract — Reasonable period — Complaint against the rejection of a compliant — Article 8 of the CEOS — Duty to have regard for the welfare of officials’

Application:

brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, and registered as Case F‑135/11, in which BU seeks annulment of the decision of the European Medicines Agency (EMA or ‘the Agency’) of 30 May 2011, by which the authority empowered to conclude contracts of employment of the EMA (‘the AECE’) decided not to consider the possibility of renewing his temporary staff contract. By a second application, received at the Registry of the Tribunal on 7 May 2012 and registered as Case F‑51/12, BU seeks annulment of the decision of 1 September 2011, by which the AECE rejected his ‘request’ annexed to an e-mail of 23 August 2011 for renewal of his temporary staff contract. By a third application, received at the Registry of the Tribunal on 1 October 2012 and registered as Case F‑110/12, BU seeks annulment of the decision of 21 November 2011 by which the AECE rejected his request for the reclassification of his auxiliary staff contract of 16 September 2002.

Held:

The decision of the European Medicines Agency not to renew BU’s contract, notified by the letter of 30 May 2011, is annulled. The action in Case F‑135/11 is dismissed as to the remainder. The actions in Cases F‑51/12 and F‑110/12 are dismissed. The European Medicines Agency is to bear its own costs and to pay the costs incurred by BU in Cases F‑135/11 and F‑51/12. BU is to bear his own costs and to pay the costs incurred by the European Medicines Agency in Case F‑110/12.

Summary

Actions brought by officials — Judgment annulling a measure — Effects — Annulment of a decision not to renew a temporary staff contract — Possibility for the administration to adopt a new decision in accordance with the judgment — Rejection of the claim for compensation for the material damage resulting from the annulled decision

A member of the auxiliary staff, contract staff or contract staff for auxiliary tasks may bring before the administration, after the time limit for bringing proceedings against his contract has expired, an application requesting that, in the light of the tasks he has actually carried out, a period of service formally completed in performance of his contract be recognised as a period of service completed as a temporary staff member and, if his application is rejected, that person may lodge an appeal against the rejection of his application, under the conditions laid down in Articles 90 and 91 of the Staff Regulations. (see para. 22) See: 21 September 2011, T‑325/09 P Adjemian and Others v Commission, para. 88 13 June 2012, F‑105/11 Davids v Commission, para. 56

Although Article 90(1) of the Staff Regulations does not lay down a time- limit within which requests must be submitted under that provision, there is an obligation to act within a reasonable time in all cases other than those in which the legislature has laid down or expressly excluded a time-limit. The legal basis for setting a reasonable time-limit in the absence of any statutory rule is the principle of legal certainty, which precludes institutions and natural or legal persons from acting without any time-limits, thereby threatening to undermine the stability of legal positions already acquired. Accordingly, the absence of a time-limit laid down in the Staff Regulations cannot be regarded in itself as meaning that it is possible to submit a request without observing such a time-limit. The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties. As regards a request to reclassify an auxiliary staff contract as a temporary staff contract under Article 2(a) of the Conditions of Employment of Other Servants, although the possibility of requesting such reclassification may constitute a remedy for the abuse of successive fixed-term contracts, it cannot be inferred from this that a time-limit of several years may be regarded as a reasonable time-limit. In that regard, the five-year time-limit applied in respect of claims for compensation in staff cases by analogy with Article 46 of the Statute of the Court of Justice does not necessarily constitute a reasonable time-limit. There is a fundamental difference between a claim for compensation, which merely seeks the award of compensatory damages with default interest and a request to reclassify an earlier contract. Such a request involves the adoption of measures effecting retroactive reconstitution of the employment relationship between the member of staff and his employer, which are also likely to affect the administration’s employment structure and staff policy, especially in an agency with only a limited staff. The circumstances of a reclassification require a reaction that is all the more swift since the stake is not insignificant, as it concerns the very nature of the employment relationship between the person concerned and the administration, with all the consequences stemming from the difference between the conditions applying to auxiliary staff and to temporary staff, and between temporary staff on fixed-term contracts and on contracts of indefinite duration. (see paras 24-25, 31-32) See: 28 February 2013, C‑334/12 RX-II Arango Jaramillo and Others v EIB, para. 28 25 March 1998, T‑202/97 Koopman v Commission, para. 25; 26 June 2009, T‑114/08 P Marcuccio v Commission, para. 25 Adjemian and Others v Commission, paras 67 and 87; 14 December 2011, T‑433/10 P Allen and Others v Commission, paras 26 and 31 1 February 2007, F‑125/05 Tsarnavas v Commission, para. 50; 11 May 2010, F‑30/08 Nanopoulos v Commission, para 117; 13 April 2011, F‑73/09 Sukup v Commission, para. 83

A letter from the administration which merely reminds a member of staff about the provisions of his contract relating to the date of expiry of the contract and containing no new factor by reference to those provisions is not an act adversely affecting that staff member. However, where the contract is renewable, the decision taken by the administration, following reconsideration, not to renew the contract constitutes an act adversely affecting the person concerned, distinct from the contract in question and capable of forming the subject-matter of a complaint or even an action within the periods prescribed in the Staff Regulations. (see para. 36) See: 15 October 2008, T‑160/04 Potamianos v Commission, para. 21 15 September 2011, F‑102/09 Bennett and Others v OHIM, paras 57 and 59 and the case-law cited

In the light of the broad discretion with regard to the renewal of temporary staff contracts enjoyed by the administration, review by the EU Courts of such discretion 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. However, even though the administration has a broad discretion, when it has before it an action for annulment directed against an act adopted in the exercise of that discretion, the EU Court none the less carries out a review of legality, which manifests itself in other respects. Thus the EU Court ensures observance of the duty of the administration to have regard to the interests of its officials. That duty, like the principle of good administration, implies in particular that when the competent authority takes a decision concerning the situation of an official or other staff member, even in the exercise of a broad discretion, it should take into consideration all the factors which may affect its decision. When doing so, the authority must take into account not only the interests of the service but also those of the official or staff member concerned. In particular, the requirements of an effective, full and detailed review are incumbent on the administration a fortiori where it has established an internal procedure providing for the consultation of a staff member’s superiors with a view to the possible renewal of his contract. That consultation procedure would be redundant if the superiors who were consulted were not to exercise their power to deliver opinions in the above circumstances and if the authority responsible for taking the decision was not itself required actually to take their recommendations into consideration. (see paras 48-51) See: 28 May 1980, 33/79 and 75/79 Kuhner v Commission, para. 22; 29 October 1981, 125/80 Arning v Commission, para. 19 13 June 2012, F‑63/11 Macchia v Commission, paras 45, 47 and 50 and the case-law cited, on appeal before the General Court, Case T‑368/12 P

Although it is not for the EU Court to review the choice of the staff policy which an institution seeks to pursue in order to carry out successfully the tasks assigned to it, it may legitimately, when it has before it a claim for annulment of a rejection of renewal of a temporary staff contract, seek to satisfy itself that the reasons given by the administration are not such as to call into question the basic criteria and conditions laid down by the legislature in the Staff Regulations and aimed in particular at ensuring that contract staff have the opportunity to benefit, where appropriate, in due course, from a measure of continuity of employment. That is how the first paragraph of Article 8 of the Conditions of Employment of Other Servants must be construed, which provides that the contracts of temporary staff as referred to in Article 2(a) of those Conditions may be renewed not more than once for a fixed period and that any further renewal is to be for an indefinite period, provisions which can in fact be regarded as preventive measures designed to combat job insecurity. That interpretation is borne out by the duty to have regard for the interests of officials, from which it has in particular been inferred that the onus is on the competent authority to establish whether there is a post to which the temporary staff member could, in the interest of the service and in the light of the priority requirements of the individual case, be usefully appointed or reappointed. That interpretation obtains all the more where the employer establishes a procedure for assessing the appropriateness of extending the employment relationship between it and its staff. It follows that the authority empowered to conclude contracts of employment fails to comply with its duty to have regard for the interests of officials and with Article 8 of the Conditions of Employment of Other Servants if, in rejecting a request for renewal of a temporary staff contract concluded under Article 2(a) of those Conditions, it refers, in an abstract way, to the budgetary possibilities and the merits and abilities of the person concerned while omitting to establish, by means of an individualised examination of that person’s particular situation and of the services which he would be able to render to the institution, whether the interests of the service which it is pursuing can be reconciled with the assignment of new tasks and duties to him and therefore with the possibility of renewing his contract or awarding him a new temporary staff or contract staff contract. (see paras 57, 59-60) See: 8 March 2012, C‑251/11 Huet, para. 37 9 December 2010, F‑87/08 Schuerings v ETF, paras 58 and 60, on appeal before the General Court, Case T‑107/11 P; 9 December 2010, F‑88/08 Vandeuren v ETF, paras 59 and 60, on appeal before the General Court, Case T‑108/11 P; Macchia v Commission, paras 54, 60 and 61