ORDER OF THE COURT (First Chamber)

29 January 2010 ( )

(Appeals – Article 119 of the Rules of Procedure – Civil service – Temporary staff contract for an indefinite period – Termination)

In Case C‑68/09 P,

APPEAL pursuant to Article 56 of the Court of Justice, brought on 11 February 2009,

Georgios Karatzoglou, former member of the temporary staff of the European Agency for Reconstruction, residing in Preveza (Greece), represented by S.A. Pappas, dikigoros,

appellant,

the other parties to the proceedings being:

European Agency for Reconstruction (EAR),

defendant at first instance,

European Commission, successor in law to the EAR, represented by D. Martin and J. Currall, acting as Agents, with an address for service in Luxembourg,

THE COURT (First Chamber),

composed of A. Tizzano (Rapporteur), President of the Chamber, E. Levits, M. Ilešič, J.-J. Kasel and M. Safjan, Judges,

Advocate General: Y. Bot,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By his appeal, Mr Karatzoglou requests the Court to set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 2 December 2008 in Case T‑471/04 Karatzoglou v EAR [2008] ECR II‑0000 (‘the judgment under appeal’), by which that court rejected his action for annulment of the decision of the European Agency for Reconstruction of 26 February 2004 terminating his contract of employment (‘the contested decision’).

Legal context

2 The European Agency for Reconstruction (EAR) was established by Council Regulation (EC) No 2454/1999 of 15 November 1999 amending Regulation (EC) No 1628/96 relating to aid for Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the former Yugoslav Republic of Macedonia (OJ 1999 L 299, p. 1).

3 Recital 19 in the preamble to Regulation No 2454/1999 stated that the EAR was being set up for the purposes of reconstruction of those countries, and a proposal would be made to wind it up once that objective had been achieved.

4 Pursuant to Article 10 of Council Regulation (EC) No 2667/2000 of 5 December 2000 on the European Agency for Reconstruction (OJ 2000 L 306, p. 7):

‘The [EAR’s] staff shall be subject to the rules and regulations applicable to officials and other servants of the European Communities. ...

The [EAR’s] staff shall consist of a strictly limited number of officials assigned or seconded by the Commission or Member States to carry out management duties. The remaining staff shall consist of other employees recruited by the [EAR] for a period strictly limited to its requirements.’

5 Chapter 9, entitled ‘Termination of employment’, of the Conditions of Employment of Other Servants of the European Communities (‘the CEOS’), in the version in force at the time of the facts of the present case, consisted of Articles 47 to 50 and set out the conditions for the termination of contracts of members of the temporary staff.

6 Specifically, Article 47(2)(a) of the CEOS provided that the employment of a member of the temporary staff for an indefinite period is to cease ‘at the end of the period of notice stipulated in the contract’.

Factual background to the dispute

7 According to Article 4 of his employment contract, Mr Karatzoglou was recruited by the EAR as a member of the temporary staff from 7 November 2001 for a period of 18 months.

8 Article 5(b) of the employment contract provides:

‘This contract may be terminated by the institution or by the staff member for any of the reasons specified in Articles 47 to 50 of the [CEOS], subject to the conditions laid down in those articles …’

9 At the end of the initial contractual period of 18 months, the parties agreed to continue their contractual relationship under a contract for an indefinite period. They therefore amended the initial contract by an addendum of 7 May 2003 (‘the addendum’).

10 Article 4 of the original contract, as amended by the addendum, provides:

‘The contract shall run for an indefinite period. However, the duration shall not exceed the expiry date of the [EAR].

The [EAR] reserves the right to terminate the contract following a significant reduction or winding-up of its operations before the expiry date of the [EAR].’

11 Under the addendum, all the other articles of the initial contract, including Article 5 thereof, are to remain unaltered.

12 By letter of 26 February 2004, the director of the EAR communicated the contested decision to Mr Karatzoglou in the following terms:

‘I regret to inform you that the decision has been taken to terminate your contract of employment with the [EAR]. The notice period will be of three months, starting on 27 February 2004, in accordance with Article 47(2) of the [CEOS] and the second paragraph of Article 5(b) of your contract.’

13 On 27 May 2004, Mr Karatzoglou lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’).

14 That complaint being rejected by implication, Mr Karatzoglou brought an action for annulment of that decision before the General Court on 6 December 2004.

15 By its judgment of 23 February 2006 in Case T‑471/04 Karatzoglou v EAR [2006] ECR-SC I-A-2-35 and II-A-2-157, the General Court upheld the second of the five pleas in law of the action, alleging breach of the principle of protection of legitimate expectations. Being of the opinion that there was no need to examine the other four pleas of the action, the General Court annulled the contested decision.

16 On 8 May 2006, the EAR lodged an appeal against that judgment.

17 Considering that the General Court had erred in law, the Court of Justice, by decision in Case C‑213/06 P EAR v Karatzoglou [2007] ECR I‑6733, set aside the judgment of 23 February 2006 in Case T‑471/04 Karatzoglou v EAR and referred the case back to the General Court for that court to rule on the appellant’s claims for annulment of the contested decision.

The judgment under appeal

18 By the judgment under appeal, the General Court dismissed the action for annulment.

19 The General Court began by holding that the first plea, alleging a breach of the duty to state reasons for the contested decision, was unfounded. According to paragraphs 38 and 39 of the judgment under appeal, the EAR could legitimately consider that neither the CEOS, nor case-law, nor the contract itself imposed a duty to state reasons for the contested decision.

20 In any event, the General Court also observed, in paragraph 41 of the judgment under appeal, that even if the EAR should have stated reasons for the contested decision, in the light of the context in which it was adopted, the reasons stated for that decision should be regarded as sufficient.

21 According to paragraph 44 of the judgment under appeal, ‘in his complaint of 27 May 2004 to the appointing authority against the contested decision, the [appellant] admitted that he was informed on numerous occasions that his post would be abolished because of a reduction of the administrative staff of the EAR. Moreover, the [appellant] cannot claim that he was unaware of the reason for his dismissal, since, in his initial application, he challenges the contention that it was the need to reduce staff at the EAR which was the real reason for the termination of his contract.’

22 The General Court concluded in paragraph 45 of the judgment under appeal that ‘the [appellant] was informed that, if he refused to transfer to Thessaloniki, his contract would be terminated because of the need for the EAR to reduce its administrative staff’.

23 Mr Karatzoglou having withdrawn the third plea in the action, the General Court then rejected the fourth plea, alleging misuse of powers. In that regard it noted, in paragraph 51 of the judgment under appeal, that the appellant had not presented any objective and relevant facts in support of his claim that the real purpose of his dismissal was to replace him by a new assistant who was wrongly recruited.

24 Lastly, the General Court held that the fifth and final plea, alleging breach of the principle of sound administration, was unfounded. In paragraph 58 of the judgment under appeal it stated that, contrary to the appellant’s contentions, the EAR, by terminating that latter’s contract only after offering him the option of a transfer from Skopje (Macedonia) to Thessaloniki (Greece), had taken into account not only the interests of the service but also those of the appellant himself.

Procedure before the Court of Justice and forms of order sought

25 By application lodged at the Registry of the Court on 16 February 2009, the appellant brought the present appeal against the judgment under appeal.

26 The Commission is a party to these proceedings as the successor in law to the EAR, the agency having ceased to exist from 1 January 2009.

27 By his appeal, Mr Karatzoglou claims that the Court should:

– set aside the judgment under appeal;

– annul the contested decision, and

– order the defendant to pay the costs.

28 The Commission contends that the Court should:

– dismiss the appeal, and

– order the appellant to pay the costs of the present proceedings.

The appeal

29 Under Article 119 of its Rules of Procedure, where the appeal is clearly inadmissible or clearly unfounded, the Court of Justice may at any time dismiss it by reasoned order.

30 By his appeal, Mr Karatzoglou challenges the judgment under appeal in so far as it rejected the three pleas in law which he raised, alleging a breach of the duty to state reasons, misuse of powers and a breach of the principle of sound administration respectively.

The first ground of appeal

Arguments of the parties

31 This ground is subdivided into three branches. By the first of those branches, the appellant submits that the judgment under appeal, by holding that the decision dismissing members of the temporary staff did not require any statement of reasons, misinterprets the case-law, of the Court of Justice in particular, and infringes the international rules binding the Member States, the fundamental principles of the EC Treaty and the general obligation to state reasons laid down in Article 253 EC.

32 According to the second branch of this plea, the General Court did not, in paragraph 38 of the judgment under appeal, take into account the fact that the original contract, as amended by the addendum, required early termination to be justified by a reduction or winding up of the operations of the EAR before its expiry date.

33 By the third branch of the first ground of appeal, the appellant challenges the assessment made by the General Court in paragraphs 44 and 45 of the judgment under appeal, following which that court held that, in any event, the reasons given for the contested decision were sufficient.

34 In this connection, the appellant claims, first, that the judgment under appeal is inconsistent on this issue. While rejecting the plea alleging a breach of the duty to state reasons, in paragraph 44 of that judgment, on the ground that the appellant had been informed on numerous occasions that his post would be abolished because of a reduction of the administrative staff of the EAR, the General Court conceded, in paragraph 57 of that judgment, that ‘the [appellant] admitted that the EAR had offered him the option of a transfer to Thessaloniki rather than the termination of his contract’ and based its rejection of the plea alleging a breach of the principle of sound administration on that. The appellant submits that, if there really had been a need to reduce staff, it would not have been possible to offer him a transfer to another post.

35 Secondly, the judgment under appeal contradicts the factual assessment contained in paragraph 46 of the judgment of the General Court of 23 February 2006 in Case T‑471/04 Karatzoglou v EAR, according to which ‘[t]he note … [raising the possibility of termination of the contract by the EAR] solely sets out remarks allegedly made by the Head of Administration of the EAR and does not therefore contain any evidence’.

36 Thirdly, according to the appellant, it is apparent from the information in the file that neither the Head of Administration of the EAR, nor the Head of the Skopje Operational Centre, nor the Director of the EAR provided him with clear information on the reasons for his dismissal.

37 Fourthly, the EAR admits that there is confusion regarding the real reason for the dismissal. In its defence to the General Court it declared that ‘[o]n 27 January 2004, the [EAR] proposed to [the appellant], by reason of departments’ rehabilitation, his transfer from Skopje to Thessalonica’. However, in the same document, it also stated that, ‘[as] since a couple of months, the work done by [the appellant] was unsatisfying, the [EAR] tried then to find a fair solution and not to be obliged to dismiss [the appellant]’.

38 Lastly, the appellant disputes the contention in paragraph 45 of the judgment under appeal that it follows from his initial application that he was aware of the reason for his dismissal.

39 The Commission contends in reply that the General Court stated sufficient reasons for dismissing the action. It maintains first that the appellant, in the first branch of that ground of appeal, relies on a breach of the obligation to state reasons committed by the EAR and not by the General Court. That branch is therefore inadmissible in an appeal. In any event, the Commission points out that the contested decision was consistent with the case-law as it existed at the time when that decision was adopted, according to which no statement of reasons was required for decisions by which the administration terminates the contract of employment of a member of the temporary staff.

40 Next, as far as the second branch of the first ground of appeal is concerned, the Commission submits that Mr Karatzoglou has not proved that the General Court, merely by referring in paragraph 38 of the judgment under appeal to the content of the contract at issue and declaring that it ‘did not impose a duty to state reasons on the employer’, infringed its obligation to state reasons. In any event, the Commission considers that branch of the ground of appeal to be ineffective, having regard to the fact that the General Court did in fact state reasons for its judgment.

41 Lastly, the Commission is of the opinion that the third branch of that plea is manifestly unfounded, in so far as it seeks not to challenge a failure to state reasons in the judgment under appeal, but to obtain a re‑examination of the facts at the appeal stage. However, the appellant has not claimed a distortion of the facts or, at least, has not done so in accordance with the requirements of case-law on that issue.

Findings of the Court

42 It is appropriate to examine the third branch of this ground of appeal first.

43 As regards, first, the argument that the judgment under appeal contradicted itself in the account of the reasons for the termination of the appellant’s employment contract, it need only be stated that there is no contradiction between paragraphs 44 and 57 of the judgment under appeal. The transfer of a member of the EAR’s staff may certainly be explained by considerations relating to a reorganisation of that agency due to the requirement to reduce its staff.

44 Accordingly, that argument is manifestly unfounded.

45 Secondly, the argument that the judgment under appeal contradicts the assessment of the facts in paragraph 46 of the judgment of the General Court of 23 February 2006 in Case T‑471/04 Karatzoglou v EAR is also manifestly unfounded. In that judgment, the General Court held that the note raising the possibility that the contract would be terminated by the EAR did not contain any evidence which could establish a breach of the principle of protection of legitimate expectations. However, it cannot be inferred from that finding that the same note cannot, by contrast, be used as evidence showing that the appellant had been informed of the fact that his contract was terminated for reasons relating to the reduction in the staff of the EAR.

46 Lastly, as regards the arguments summarised in paragraphs 36 to 38 of this judgment, it must be stated that they essentially seek to call in question the General Court’s assessment of the evidence concerning the reasons for Mr Karatzoglou’s dismissal.

47 However, such an assessment is subject to review by the Court of Justice only where the facts and evidence produced before the General Court have been distorted, and no distortion has been substantiated or alleged by the appellant in the present case (see, inter alia, Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraph 54 and the case-law cited).

48 It is necessary, therefore, to reject as manifestly inadmissible those arguments, and, consequently, to dismiss the third branch of the first ground of appeal.

49 As regards the other branches of this ground of appeal, it is settled case‑law that complaints directed against grounds included in the judgment purely for the sake of completeness cannot lead to the judgment being set aside and are therefore nugatory (see, inter alia, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 148, and order of 23 February 2006 in Case C‑171/05 P Piau v Commission, paragraph 86).

50 Since the appellant has not succeeded, in the present case, in establishing that the General Court erred in law when it concluded that sufficient reasons were stated for the contested decision, the other branches of the first plea, according to which the General Court was wrong to conclude that the EAR was not required, under case-law or by the contract at issue, to state reasons for the contested decision, are ineffective.

51 Accordingly, the first ground of appeal must be rejected as in part manifestly unfounded and in part manifestly inadmissible.

The second ground of appeal

Arguments of the parties

52 By his second ground of appeal, the appellant challenges the rejection by the General Court, in paragraph 51 of the judgment under appeal, of the plea raised at first instance alleging misuse of powers by the EAR in recruiting a new assistant with the aim of creating overstaffing and terminating Mr Karatzoglou’s contract.

53 He submits that, in order to reject that plea, the General Court based its analysis on the date of that new assistant’s recruitment and on that of the appellant’s dismissal. However, the first of those two dates was incorrect, since the General Court stated, in paragraph 51 of the judgment under appeal, that that new assistant was recruited during March 2003, whereas he started work on 1 April 2003. In addition, the date of the appellant’s dismissal is irrelevant for the purposes of the arguments at issue.

54 The Commission is of the opinion that that ground of appeal is inadmissible and, in any event, manifestly unfounded. In his appeal, the appellant does not specify the error of law vitiating the judgment under appeal, but simply repeats the arguments put forward at first instance.

Findings of the Court

55 It follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal, if the appeal or the ground concerned are not to be held inadmissible (see, inter alia, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34, and Case C‑68/05 P Koninklijke Coöperatie Cosun v Commission [2006] ECR I‑10367, paragraph 54, and order of 3 February 2009 in Case C‑231/08 P Giannini v Commission, paragraph 44).

56 However, it must be stated that the second ground of appeal does not meet those requirements. In his appeal Mr Karatzoglou does not in any way explain how the General Court has erred in law by holding, in paragraph 51 of the judgment under appeal, that the appellant, contrary to the requirements set out by case-law for the purposes of establishing a misuse of powers, had not presented any objective and relevant facts in support of his claim that the real purpose of his dismissal was to replace him by a new assistant who was wrongly recruited.

57 Moreover, even if the appellant alleges a distortion of the facts in relation to the date at which the new assistant started his job it must be held that, as the Commission correctly maintains, the General Court cannot be said to have thus distorted the facts. That new assistant could indeed start his job on 1 April 2003 while having been recruited in March 2003, as the General Court asserted in paragraph 51 of the judgment under appeal.

58 It follows that the second ground of appeal must be rejected as manifestly inadmissible.

The third ground of appeal

Arguments of the parties

59 Mr Karatzoglou claims that the conclusion reached by the General Court in paragraph 60 of the judgment under appeal, according to which the contested decision did not infringe the principle of sound administration, is founded on incorrect information, inter alia on the appellant’s alleged refusal to be transferred from Skopje to Thessaloniki. As is apparent from the file, the appellant did not refuse the transfer offered to him as an alternative to dismissal. Moreover, he brought a subsequent complaint confirming his availability for that transfer, to which the EAR did not reply.

60 The Commission is of the opinion that this ground should also be declared inadmissible since by it the appellant is essentially requesting the Court of Justice to re-examine facts already examined by the General Court. It adds furthermore that the appellant himself contradicted that latter argument when he stated, in his application at first instance, that the ‘Head of Administration of [the EAR] … gave the [appellant] two days to decide whether he accepts to be transferred, which he did not’.

Findings of the Court

61 As the Commission correctly submits, by this ground of appeal the appellant merely calls into question the assessment of the evidence contained in the file which led the General Court to conclude that, since the appellant had refused his transfer to Thessaloniki, the EAR had not infringed the principle of sound administration.

62 Such an assessment, in accordance with the case-law referred to in paragraph 47 of this judgment, is subject to review by the Court of Justice only where the facts and evidence produced before the General Court have been distorted.

63 Even if the appellant had pleaded such distortion, the fact remains that, in the present case, as the Commission has rightly observed, the appellant himself in his application for annulment before the General Court expressly stated that he had refused a transfer to Thessaloniki.

64 Accordingly, the third plea must be held to be manifestly unfounded.

65 It follows that the appeal in its entirety must be dismissed as being in part manifestly unfounded and in part manifestly inadmissible.

Costs

66 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

67 Under Article 70 of those rules, in proceedings between the Communities and their servants the institutions shall bear their own costs. However, under the first indent of the second paragraph of Article 122 thereof, Article 70 is not applicable to an appeal brought by an official or any other servant of an institution against the institution.

68 Since the Commission has applied for Mr Karatzoglou to pay the costs and the latter has been unsuccessful, he must be ordered to pay the Commission’s costs in addition to his own.

On those grounds, the Court (First Chamber) hereby orders:

1. The appeal is dismissed.

2. Mr Karatzoglou shall pay the costs.

[Signatures]