JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

7 July 2004

Case T-175/03

Norbert Schmitt

v

European Agency for Reconstruction (EAR)

(Member of the temporary staff – Termination of contract – Article 47(2)(a) of the Conditions of Employment of Other Servants – Observance of the provisions of the contract – Legitimate expectations)

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Application: for annulment of the decision of the EAR terminating the applicant’s contract and, in the alternative, an application for damages.

Held: The decision of the EAR of 25 February 2003 terminating the applicant’s contract is annulled and the EAR is ordered to pay the costs, including those incurred in the proceedings for interim relief.

Summary

1. Officials – Actions – Act adversely affecting an official – Definition – Letter terminating the contract of a member of the temporary staff – Whether included

(Staff Regulations, Arts 90 and 91)

2. Officials – Actions – Prior administrative complaint – Requirement that subject-matter and grounds be the same – Pleas in law and arguments not appearing in the complaint, but closely linked to it – Admissibility

(Staff Regulations, Arts 90 and 91)

3. Officials – Principles – Protection of legitimate expectations – Conditions

4. Officials – Temporary staff – Termination of the contract of indefinite duration of a member of the temporary staff – Discretion of the administration – Limitation by contractual provisions – Whether permissible

(Conditions of Employment of Other Servants, Art. 47(2))

1. A letter terminating the contract of a member of the temporary staff must be considered to be an act adversely affecting the member of staff, given that it is a measure taken by the competent authority which gives rise to binding legal effects capable of directly and immediately affecting the applicant’s interests by significantly altering his legal position.

(see para. 28)

See: T‑558/93 Düchs v Commission [1994] ECR-SC I‑A‑265 and II‑837, para. 36; T‑184/94 O’Casey v Commission [1998] ECR-SC I‑A‑183 and II‑565, para. 63, and the case-law cited therein

2. The rule of harmony between a complaint, within the meaning of Article 90(2) of the Staff Regulations, and the action which follows requires that, for a plea before the Community judicature to be admissible, it must have already been raised in the pre-litigation procedure, enabling the appointing authority to know in sufficient detail the criticisms made by the person concerned of the contested decision. Whilst claims for relief before the Community judicature may contain only the same heads of claim, based on similar matters, as those raised in the complaint, those heads of claim may nevertheless be developed before the Community judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it.

(see para. 42)

See: T‑174/02 Wieme v Commission [2003] ECR-SC I‑A‑241 and II‑1165, para. 18, and the case-law cited therein

3. The right to claim the protection of legitimate expectations, which is one of the fundamental principles of the Community, extends to any individual who is in a situation from which it is clear that, in giving him specific assurances, the Community administration has led him to entertain reasonable expectations. In the case of an employment relationship with an institution, these assurances must in any event comply with the provisions of the Staff Regulations or of the Conditions of Employment of Other Servants.

(see paras 46-47)

See: T‑66/96 and T‑221/97 Mellett v Court of Justice [1998] ECR-SC I‑A‑449 and II‑1305, para. 104; T‑319/00 Borremans and Others v Commission [2002] ECR-SC I‑A‑171 and II‑905, para. 63; T‑205/01 Ronsse v Commission [2002] ECR-SC I‑A‑211 and II‑1065, para. 54

4. The termination of temporary staff contracts of indefinite duration observing the notice period specified in the contract and, in accordance with Article 47(2) of the Conditions of Employment of Other Servants governing the competent authority’s discretion, no provision of those conditions prevents that authority from imposing contractual provisions limiting its power to terminate contracts, in the interest of the staff. Therefore, if the authority makes exercising the right that it enjoys by virtue of the abovementioned provision to terminate a temporary staff contract of indeterminate duration contingent on the occurrence of certain predetermined events, such contractual provisions can create a situation in which the interested party can claim the protection of legitimate expectations that they will be complied with.

(see paras 56, 59)

See: Düchs v Commission, cited above, para. 43