JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

17 September 2014

Kari Wahlström

v

European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)

‛Civil service — Frontex staff — Temporary staff — Non-renewal of a fixed-term contract — Renewal procedure — Article 41(2)(a) of the Charter of Fundamental Rights of the European Union — Right to be heard — Infringement — Influence on the content of the decision’

Application:

under Article 270 TFEU, in which Mr Wahlström seeks annulment of the decision of the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), of 19 February 2013, not to renew his contract as a member of the temporary staff.

Held:

The decision of the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, of 19 February 2013 not to renew Mr Wahlström’s contract as a member of the temporary staff is annulled. The remainder of the action is dismissed. The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union is to bear its own costs and is ordered to pay the costs incurred by Mr Wahlström.

Summary

Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed-term contract — Adoption of the decision without first giving the person concerned the opportunity to submit his observations — Infringement of the right to be heard

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Conditions of Employment of Other Servants, Article 47)

Since a decision not to renew the fixed-term contract of a member of the temporary staff adversely affects the situation of the staff member concerned, in so far as it deprives him of the possibility of continuing his employment relationship, it is for his institution, pursuant to Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, to allow him to submit his observations to useful effect before adopting the decision. The rights of the defence, as now enshrined in Article 41 of the Charter, include, while being more extensive, the procedural right, provided for in paragraph 2(a) of that article, of every person to be heard before any individual measure concerning him or her is taken.

However, for an infringement of the right to be heard to result in the annulment of the contested decision, it is also necessary to examine whether, in the absence of that irregularity, the procedure might have led to a different result.

In that regard, where a temporary staff contract is renewed solely on the basis of an assessment of the abilities and qualifications of the staff member concerned, it cannot be excluded that the conclusion that the contract should not be renewed might have been different if he had been given a proper opportunity to make his point of view known regarding the level of his professional performance, taken together with the prospect of continuing his working relationship, and that, accordingly, compliance with the right to a hearing could therefore have had an influence on the content of the decision not to renew the contract.

(see paras 27, 28, 32)

See:

judgments in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, para. 65; M., C‑277/11, EU:C.2012:744, paras 81 to 83; Commission v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paras 98 and 99; and G. and R., C‑383/13 PPU, EU:C:2013:533, para. 38 and the case-law cited therein

judgment in L v Parliament, T‑317/10 P, EU:T:2013:413, para. 81

judgment in CH v Parliament, F‑129/12, EU:F:2013:203, para. 38