JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

13 June 2012

Case F‑63/11

Macchia Luigi

v

European Commission

(Civil service — Members of the temporary staff — Non-renewal of a fixed-term contract — Administration’s discretion — Duty to have regard for the interests of officials — Article 8 of the CEOS — Article 4 of the Decision of the Director-General of OLAF of 30 June 2005 on a new policy for the engagement and use of OLAF’s temporary agents — Maximum duration of temporary staff contracts)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Macchia seeks, inter alia, annulment of the implied decision of the acting Director-General of the European Anti-Fraud Office (OLAF) of 12 August 2010 rejecting his request for extension of his temporary staff contract.

Held: The decision of the acting Director-General of the European Anti-Fraud Office (OLAF) of 12 August 2010 rejecting the request for extension of the applicant’s temporary staff contract is annulled. The remainder of the action is dismissed. The Commission is to bear its own costs and is ordered to pay the applicant’s costs.

Summary

1. Officials — Action against an implied decision rejecting a request — Plea in law based on lack of a statement of reasons — Taking into account of the statement of reasons contained in the decision rejecting the complaint

(Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 46)

2. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Judicial review — Scope

(Conditions of Employment of Other Servants, Arts 8 and 47(1)(b))

3. Officials — Members of the temporary staff — Administration’s duty to have regard for the interests of staff — Principle of sound administration — Scope — Judicial review — Limits

(Staff Regulations, Art. 24; Conditions of Employment of Other Servants, Art. 11)

4. Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed-term contract — Judicial review — Scope — Decision not preceded by an examination of the situation of the staff member in the light of the interests of the service — Unlawfulness

(Conditions of Employment of Other Servants, Arts 2(a) and 8, first para.)

5. Officials — Actions — Judgment annulling a measure — Effects — Obligation to implement — Scope — Annulment of a decision not to renew a temporary staff contract — No compensation given the possibility of retroactive replacement of the annulled measure

(Art. 266 TFEU)

1. In view of the evolving nature of the pre-litigation procedure, where the administration’s decision rejecting a complaint contains a statement of reasons which was obviously lacking in the implied decision rejecting a request, against which the complaint was directed, it is the statement of reasons contained in the decision rejecting the complaint which must be taken into account in the review of legality of the original act adversely affecting an official, since that statement of reasons is deemed to supplement that act. None the less, it is certainly the legality of the original act adversely affecting an official that is being examined, in the light of the reasons contained in the decision rejecting the complaint.

(see paras 18, 41)

See:

9 December 2009, T‑377/08 P Commission v Birkhoff, paras 58 and 59 and the case-law cited therein

2. Even if a member of the temporary staff who is the holder of a fixed-term contract does not have any right to the renewal of his contract, and even though the administration has a broad discretion with regard to such renewal, when the Union judicature has before it an action for annulment directed against an act adopted in the exercise of that discretion, it none the less carries out a review of legality, which manifests itself in several respects regardless of the existence or otherwise of a formal obligation to state reasons.

Thus, the Union judicature may be required to verify that the administration did not base its decision on incorrect or incomplete material facts. For that purpose, it must satisfy itself that the administration exercised its powers effectively in order to establish the facts which served as the basis for its decision, so as to take into account all the relevant evidence. The judicature may also find it necessary to examine whether the administration undertook a detailed, or specific, examination of the relevant aspects of the individual case, in such a way that that examination is undertaken with care and impartiality.

It is therefore the task of the judicature to establish whether the administration committed a manifest error in assessing the facts which it used in order to adopt the contested decision. However, in the context of a broad discretionary power which the administration is recognised as having, establishing that the administration made a manifest error in assessing the facts, such as to justify the annulment of the decision adopted on the basis of that assessment, presupposes that the evidence, which the applicant must produce, is sufficient to make the factual assessments used by the administration implausible.

(see paras 43, 45, 47-49)

See:

15 February 2005, C‑12/03 P Commission v Tetra Laval, para. 39; 10 July 2008, C‑413/06 P Bertelsmann and Sony Corporation of America v Impala, para. 145

30 November 1993, T‑78/92 Perakis v Parliament, para. 16; 12 December 1996, T‑380/94 AIUFFASS and AKT v Commission, para. 59; 8 May 2001, T‑182/99 Caravelis v Parliament, para. 32; 17 October 2002, T‑330/00 and T‑114/01 Cocchi and Hainz, para. 82; 6 February 2003, T‑7/01 Pyres v Commission, para. 64; 26 October 2004, T‑55/03 Brendel v Commission, para. 60; 13 July 2006, T‑413/03 Shandong Reipu Biochemicals v Council, para. 63; 27 September 2006, T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank v Commission, para. 67; 12 February 2008, T‑289/03 BUPA and Others v Commission, para. 221

7 July 2009, F‑54/08 Bernard v Europol, para. 44; 23 November 2010, F‑8/10 Gheysens v Council, para. 75

3. The duty of the administration to have regard to the interests of its officials and the principle of good administration imply 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, it must take into account not only the interests of the service but also those of the official or staff member concerned. However, having regard specifically to the extent of the institutions’ discretion in evaluating the interests of the service, the review undertaken by the Courts of the Union must be confined to the question whether the competent authority remained within reasonable limits and did not use its discretion incorrectly.

(see para. 50)

See:

28 May 1980, 33/79 and 75/79 Kuhner v Commission, para. 22; 29 October 1981, 125/80 Arning v Commission, para. 19

6 July 1999, T‑112/96 and T‑115/96 Séché v Commission, paras 147 to 149; 2 March 2004, T‑14/03 Di Marzio v Commission, paras 99 and 100

4. However, although it is not for the Union judicature 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 the Conditions of Employment 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, which requires that, when considering a request for renewal of contract, the competent authority must examine, in particular, whether there is another temporary staff post as referred to in Article 2(a) in respect of which the contract of the person concerned could, in the interest of the service and in the light of the priority requirements of the individual case, be legitimately renewed.

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 of Employment, it refers, in an abstract way, to the budgetary possibilities and to the merits and abilities of the person concerned, while omitting to establish, by means of an individualised examination of the 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 was pursuing could be reconciled with the assignment of new tasks and duties to the person concerned and therefore with the possibility of renewing his contract or awarding him a new temporary staff contract.

(see paras 54, 60-61)

See:

8 March 2012, C‑251/11 Huet, para. 37

9 December 2010, F‑87/08 Schuerings v ETF, paras 58 and 60; 9 December 2010, F‑88/08 Vandeuren v ETF, paras 59 and 60

5. The annulment of a measure by the Courts of the Union has the effect of retroactively eliminating that measure from the legal system, and where the measure annulled has already been carried out, the abolition of its effects means that the applicant must be restored to the legal position he was in before it was adopted. Furthermore, in accordance with Article 266 TFEU, the institution whose act has been annulled must take the necessary measures to comply with the judgment.

However, with regard to the annulment of a decision not to renew a temporary staff contract, it is, in any event, still possible that the institution could consider that it is able once again to adopt a decision not to renew the applicant’s temporary staff contract after a full and detailed review of the file, taking into account the grounds of the annulling judgment.

Consequently, the Courts of the Union cannot order the institution to pay the salary of the staff member concerned as from the date of the unlawful decision.

(see paras 64, 66-67)

See:

26 October 2006, F‑1/05 Landgren v ETF, para. 92; 26 May 2011, F‑83/09 Kalmár v Europol, para. 88, on appeal before the General Court of the European Union, Case T‑455/11 P