JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

17 March 1994

Case T-52/91

Carine Smets

v

Commission of the European Communities

‛Member of the temporary staff — Internal competition — Dismissal’

Full text in Dutch II-353

Application for:

Annulment of the termination of the applicant's contract as a member of the temporary staff.

Decision:

Annulment.

Abstract of the Judgment

The applicant's employment on the temporary staff as an interpreter in Grade LA 7 was extended by a contract. Article 5 of which contained a provision for termination on the grounds and under the conditions laid down in Articles 47 to 50 of the Conditions of Employment of Other Servants of the European Communities (‘the Conditions of Employment’). The Commission then extended the applicant's employment for an indefinite period, provided she took part in the next external competition for interpreters/assistant interpreters for which she was eligible, subject to termination of the contract in the event of her failing the competition.

After taking part in the tests of internal competition COM/LA/2/89 to constitute a reserve list of assistant interpreters, the applicant was informed that she had not obtained the minimum number of marks required, and had not been placed on the list of suitable candidates. By letter of 11 March 1991 the Commission informed the applicant that it had decided to terminate her contract in accordance with Article 5.

Substance

The plea in law based on failure to state reasons in the decision to dismiss the applicant

The Court rejects that plea because there is no need to give reasons for a unilateral termination expressly provided for in a contract of employment of a member of the temporary staff for an indefinite period, no matter which party terminates the contract. Such dispensation from the duty to give reasons is justified by the discretion which Article 47(2) of the Conditions of Employment confers on the competent authority regarding the termination of such a contract. In that respect, the position of a member of the temporary staff differs from that of an official under the Staff Regulations so as to exclude in the present case the application by analogy of the duty under Article 25 of the Staff Regulations to give reasons for decisions adversely affecting an official, despite the general reference by Article 11 of the Conditions of Employment to Articles 11 to 26 of the Staff Regulations, concerning the rights and obligations of officials (paragraph 24).

See: 25/68 Schemer v Parliament [1977] ECR 1729, para. 39; 25/80 De Briey v Commission [1981] ECR 637, para. 9; T-45/90 Speybrouck v Parliament [1992] ECR II-33, para. 93

The plea in law based on the absence of a valid ground for dismissal

Having examined the argument that the decision to dismiss the applicant was unlawful, in that it was not based on any of the grounds set out in Articles 47 to 50 of the Conditions of Employment, or on any other legitimate ground such as professional incompetence, or on any ground connected with the interests of the service, the Court considers it to be sufficiently legally established that the applicant's dismissal was based exclusively on her failure in the competition (paragraphs 26 and 32).

The Court points out that it has no jurisdiction to review a decision of dismissal and the underlying reasons for it, unless the competent authority has exceeded the limits of the discretion conferred upon it by Article 47(2) of the Conditions of Employment (paragraph 33).

See: De Briey v Commission, cited above, para. 7

In the Court's opinion, it cannot review the validity of the termination of a contract when such termination is based on the fact that the staff member in question has not been entered on the list of successful candidates in a competition, unless it can be established either that there has been a manifest error vitiating that person's exclusion from the list or the legality of the selection board's decision, or that there has been a misuse of powers (paragraph 34).

Since the Selection Board's decision not to enter the applicant's name on the list of suitable candidates in competition COM/LA/2/89 was annulled by the Court's judgment in Case T-44/91 Smets v Commission [1994] ECRSC II-319, the decision of dismissal in question is based on an unlawful decision. It follows that the Commission has acted in disregard of the limits placed on its discretion (paragraph 35).

Operative part:

The decision of the Commission, notified to the applicant by letter of 11 March 1991 and terminating her contract as a member of the temporary staff, is annulled.