JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

19 March 2013

Case F‑13/12

BR

v

European Commission

(Civil service — Temporary staff — Non-renewal of contract)

Application: Brought by BR under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, seeking annulment of the European Commission’s decision not to renew her contract as a member of the temporary staff, and an order for the Commission to pay damages.

Held: The application is dismissed. BR is to bear her own costs and is ordered to pay those of the Commission.

Summary

Officials — Members of the temporary staff — Duration of the contract — Institution’s discretion — Restriction under an internal decision of general application — Lawfulness — Limits

(Charter of Fundamental Rights of the European Union, Art. 41; Conditions of Employment of Other Servants, Arts 2(b) and (d), and 8, first and second paras)

The second paragraph of Article 8 of the Conditions of Employment of Other Servants does not create a right for a member of staff to be employed for the maximum period of six years, having regard to the institution’s power to conclude or renew such contracts for a period shorter than the permitted maximum. This is by virtue of the wide discretion which the institution has to organise its departments to suit the tasks entrusted to it, and to assign the staff available to it in the light of such tasks, on condition, however, that the staff are assigned in the interest of the service.

Moreover, the institution enjoys that wide discretion not just in individual cases, but also within the framework of a general policy established, where appropriate, by an internal decision of general application, such as general implementing provisions, by which it imposes limits on the exercise of its discretion. Nevertheless, such an internal decision may not result in the complete waiver by the institution of the power, given to it by the first paragraph of Article 8 of the Conditions of Employment of Other Servants, to conclude or renew, according to the circumstances, a temporary staff contract within the meaning of Article 2(b) or (d) of those conditions for a period up to the maximum of six years. Furthermore, the institution is always required to observe the general principles of law, such as the principles of equal treatment and legitimate expectations.

Under general principles of law, an authority empowered to conclude contracts of employment may not waive the discretion which is given to it by the second paragraph of Article 8 of the Conditions of Employment of Other Servants by mechanically applying the six-year rule — or in other words without considering the employee’s application or the benefit to the institution in accepting it — so as to justify limiting the period of employment to a shorter period than that authorised by the second paragraph of Article 8 of the Conditions. In thus waiving its discretion, the authority in question would infringe the right to good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, which requires it to consider each application carefully, fully and impartially in the light of the merits and abilities of the candidate concerned and the requirements of the post to be filled. Such a waiver would also give rise to an infringement of the duty to have regard for the welfare of officials and the principle of equal treatment.

(see paras 33-35)

See:

8 September 2009, T‑404/06 P ETF v Landgren, para. 215

16 December 2010, T‑143/09 P Commission v Petrilli, paras 34 and 35