JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

24 February 2010

Case F-89/08

P

v

European Parliament

(Civil service — Temporary staff — European Parliament — Dismissal — Loss of confidence)

Application: brought under Articles 236 EC and 152 EA, in which the applicant seeks, first, annulment of the Parliament’s decision of 15 April 2008 terminating her contract as a member of the temporary staff, second, her reinstatement with retroactive effect, third, payment of her salary from 15 July 2008, fourth, payment of compensation for the non-material damage and harm to her career which she considers she has suffered as a result of the decision to dismiss her, and fifth, an order that the Parliament pay the costs.

Held: The action is dismissed. Each party is to bear its own costs.

Summary

1. Officials — Members of the temporary staff — Temporary staff under Article 2(c) of the Conditions of Employment of Other Servants — Member of the temporary staff seconded to a political group in the Parliament

(Conditions of Employment of Other Servants, Art. 2(c))

2. Officials — Members of the temporary staff — Temporary staff under Article 2(c) of the Conditions of Employment of Other Servants — Member of the temporary staff seconded to a political group in the Parliament

(Conditions of Employment of Other Servants, Art. 2(c))

3. Officials — Members of the temporary staff — Decision to dismiss — Obligation to state the reasons on which the decision is based — Scope

(Staff Regulations, Arts 25, second para., and 90(2); Conditions of Employment of Other Servants, Art. 2(c))

4. Actions for annulment — Pleas in law — Misuse of powers — Definition

5. Officials — Administration's duty to have regard for the interests of officials — Scope — Limits

(Conditions of Employment of Other Servants, Art. 2(c))

6. Officials — Actions — Subject-matter — Direction to the administration — Inadmissibility

(Art. 233 EC; Staff Regulations, Art. 91)

1. Observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question. In accordance with that principle, the person concerned must have been afforded the opportunity, prior to the adoption of the decision concerning him, properly to make known his views on the truth and relevance of the facts and circumstances on which that decision was based.

However, a plea in law alleging infringement of the rights of the defence cannot reasonably be relied on in respect of a decision ending the secondment of an official to a political group in the Parliament. In the light of the specific nature of the duties carried out within a political group and the need to maintain, in such a political environment, relations of mutual confidence between the officials on secondment and the group, the obligation to hear the views of the person concerned before adopting the decision terminating those duties is not mandatory in such a case.

That exception applies whenever the need to maintain a ‘relationship of trust’ is at issue, that is to say, for all temporary staff recruited under Article 2(c) of the Conditions of Employment of Other Servants — mutual confidence being a fundamental element of the contracts of the temporary staff referred to in that provision — where their contracts are terminated because of a breakdown in the relationship of trust. The adoption of a decision terminating, on the ground of a breakdown in the relationship of trust, a contract concluded on the basis of Article 2(c) of the Conditions of Employment of Other Servants does not therefore require that views of the person concerned be heard first.

(see paras 29-33)









See:

44/69 Buchler v Commission [1970] ECR 733, para. 9; 234/84 Belgium v Commission [1986] ECR 2263, para. 27; C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, para. 99; C-288/96 Germany v Commission [2000] ECR I-8237, para. 99; C-111/02 P Parliament v Reynolds [2004] ECR I-5475, paras 50 to 60; C-344/05 P Commission v De Bry [2006] ECR I-10915, para. 37

T-45/90 Speybrouck v Parliament [1992] ECR II-33, para. 94; T-406/04 Bonnet v Court of Justice [2006] ECR-SC I-A-2-213 and II-A-2-1097, para. 79

2. Under the terms of the provisions of Article 4 of the decision of the Parliament Bureau of 3 May 2004 concerning the devolution of the powers of the appointing authority and the authority empowered to conclude contracts of employment, as amended by the Bureau’s decision of 26 October 2004, in the case of non-attached Members the Secretary-General of the Parliament performs the duties of the authority empowered to conclude contracts of employment for temporary staff referred to in Article 2(c) of the Conditions of Employment of Other Servants who are recruited to work for those Members. Consequently, it is the Secretary-General of the Parliament who is competent to adopt a decision to dismiss a member of the temporary staff working for non-attached Members. However, the political groups have discretion to choose the staff they wish to engage to serve temporarily in posts in those groups as well as to terminate the latter’s engagement.

For non-attached Members, that is to say, Members who have not been able to form a political group, there is an administrator, the ‘non-attached Members’ coordinator’, whose job it is to liaise between the non-attached Members as well as between them and the other political groups or the Parliament’s administrative departments. The coordinator also manages the shared resources available to non-attached Members and must therefore ensure that the Conditions of Employment of Other Servants are applied to temporary staff assigned to those Members.

The temporary staff concerned mainly work for a single Member, who is their line-manager. In particular, he is the one who signs their travel orders. Consequently, although, in practice, the day-to-day administrative operation of the non-attached Members’ ‘group’ requires a member of the temporary staff to perform tasks which concern non-attached Members other than his line-manager alone, it is the latter with whom he must have a relationship of trust. Where a breakdown occurs in the relationship of trust between a staff member and his line-manager, the non-attached Members’ coordinator submits a dismissal request to the Secretary-General of the Parliament and, on the basis of that request, the Secretary-General of the Parliament adopts a dismissal decision. In so far as it is based on a loss of confidence on the part of the staff member’s line-manager, that decision cannot be annulled solely on the ground that the loss of confidence concerns only one non-attached Member.

(see paras 39-43, 45-46)

See:

Parliament v Reynolds, para. 50

3. There is no overriding reason to exclude members of the temporary staff from protection against unjustified dismissal, particularly when their contract is for an indefinite period or, if it is a fixed-term contract, they are dismissed before the expiry of the term. In order to ensure a sufficient degree of protection to that effect, the persons concerned must be able to determine whether their legitimate interests have been respected or damaged and to assess whether it would be appropriate to initiate judicial proceedings, and the courts must be able to exercise their powers of review, which amounts to recognising an obligation on the part of the competent authority to state the reasons for its decisions.

Where a decision to dismiss is taken on the ground of a loss of confidence, the person concerned has no procedural safeguards, such as the right to be heard during the administrative procedure. Consequently, the obligation to state the reasons for the decision and the administration’s compliance with that obligation constitute the sole safeguard enabling him, at the very least after the decision adversely affecting him is adopted, to make effective use of the remedies available to challenge the legality of the decision.

However, a breakdown in the relationship of trust, in other words in a relationship of a personal nature, is not necessarily based on objective factors. The simple finding that there has been a breakdown in the relationship of trust may therefore be enough to justify the adoption of a dismissal decision. Consequently, where a dismissal decision is based only on such a finding, the requirement that the grounds for the decision must describe in detail the factual circumstances demonstrating or justifying the breakdown in the relationship of trust cannot be too far-reaching.

Nevertheless, particularly as regards temporary staff seconded to non-attached Members in the Parliament, the statement of reasons for a dismissal decision based on a loss of confidence must necessarily provide adequate details of the person with whom the relationship of trust has been broken. The staff member in question will then be able to satisfy himself that the decision concerns his line-manager, that is to say, the non-attached Member with whom he should have a relationship of trust.

Where a decision does not contain an adequate statement of reasons, it is not the temporary staff member’s responsibility to find out for himself what the grounds for the decision were. Where the statement of reasons for a decision is inadequate, therefore, the administration cannot rely on the fact that the grounds for that decision were accessible in the personal file of the staff member in question in order to persuade the court, at the stage of the judicial proceedings, to dismiss a plea based on the inadequacy of that statement of reasons. However, where it is clear from the very wording of the complaint lodged by the staff member under Article 90(2) of the Staff Regulations that he was apprised of the grounds for a decision by consulting his personal file, it would be unreasonable to annul that decision because of the, admittedly improper, fact that the institution did not state them explicitly when it rejected that complaint.

(see paras 69-74, 77, 81-83)

See:

T-237/00 Reynolds v Parliament [2005] ECR-SC I-A-385 and II-1731, para. 95; T-404/06 P ETF v Landgren [2009] ECR II-2841

F-1/05 Landgren v ETF [2006] ECR-SC I-A-1-123 and II-A-1-459, paras 73 and 74

4. A measure may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty.

(see para. 87)

See:

8/57 Groupement des hauts fourneaux et aciéries belges v High Authority [1958] ECR 245, 256; C-342/03 Spain v Council [2005] ECR I-1975, para. 64; C-310/04 Spain v Council [2006] ECR I-7285, para. 69

5. The concept of the administration’s duty to have regard for the welfare of its servants reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants. That balance implies, in particular, that when the relevant authority takes a decision concerning the position of an official, it should take into consideration all the factors capable of affecting its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned. However, mutual confidence is a fundamental element of the contracts of temporary staff referred to in Article 2(c) of the Conditions of Employment of Other Servants. Consequently, save in exceptional circumstances, any limits on the action taken by the administration resulting from the duty to have regard for the welfare of its staff cannot, where there has been a breakdown in the relationship of trust, prevent the adoption of a dismissal decision based on that breakdown.

(see paras 112-113)

See:

33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 22; C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, para. 38

Speybrouck v Parliament, para. 94; Bonnet v Court of Justice, para. 47

6. In an action brought under Article 91 of the Staff Regulations, the Community judicature is not entitled to issue directions to the Union institutions. First of all, it manifestly has no jurisdiction to issue directions to those institutions, and second, where an act is annulled, the institution concerned is required to take the measures necessary to comply with the judgment.

(see para. 120)

See:

T-373/00, T-27/01, T-56/01 and T-69/01 Tralli v ECB [2002] ECR-SC I-A-97 and II-453, para. 42 and the case-law cited therein