JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

30 September 1998

Case T-43/97

Isabelle Adine-Blanc

v

Commission of the European Communities

‛Officials — Auxiliary staff — Duration of contract — Principle of the protection of legitimate expectations — Duty to have regard for the welfare and interests of officials — Principle of sound administration’

Full text in French II-1683

Application for:

first, annulment of the Commission's decision of 20 June 1996 reducing from 36 months to 3 months the duration of a contract offering the applicant a position as a member of the auxiliary staff and, second, compensation for the material and nonmaterial damage suffered by the applicant as a result of that decision.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, an employee of France Télécom, was seconded to the Commission from 1 February 1993 to 31 January 1996 as a national expert. She was assigned to Unit 4 (Quality, certification and conformity marking) of Directorate B (Legislation and standardisation of telematics networks) of the Directorate-General for Industry (DG III) (‘Unit III.B.4’).

On 10 July 1995 the head of that unit informed France Télécom that, when the applicant's contract came to an end, DG III would request that she be offered a one-year contract as a member of the auxiliary staff. France Télécom agreed that she should be given unpaid leave.

On 22 March 1996 the applicant submitted to the Directorate-General for Competition (DG IV) a ‘request for information’ concerning the action to be taken in response to her application for a post as a member of the temporary staff in Unit 1 (Post and telecommunications and information society coordination) of Directorate C (Information, communication and multimedia) of DG IV.

By letter of 17 April 1996 the Directorate-General for Personnel and Administration (DG IX) asked her to furnish a series of documents ‘with a view to your possible engagement within the Commission’.

On 30 April 1996 the Commission sent her an offer of engagement as a member of the auxiliary staff in Unit III.B.4, worded as follows:

‘You will be engaged for a term of 36 months and classified in category A, group II, step 3 ... I am pleased to note that, in consequence of the agreement reached between you and the service, you are willing to take up your duties in the Commission on 1 May 1996 ... P.S.: The validity of this offer is subject to your supplying, before you take up your duties, the documents requested in our letter of 17 April 1996.’

On 7 May 1996 the applicant was presented with a contract of three months' duration for a post as a member of the auxiliary staff in Unit III.B.4. She refused to sign that contract.

By letter of 20 June 1996 the applicant was informed that the letter of 30 April 1996 contained an error:

‘...a typing error unfortunately occurred in that offer letter of 30 April 1996, which clearly cannot have escaped your notice. That error was quickly spotted both by DG III and by ourselves, and we have ascertained by means of various telephone calls that the position was made quite clear in that regard — particularly since the matter involved a derogation granted by the “external personnel” group and the service to which you were assigned had already been informed that that derogation could not extend beyond 31 July 1996. Furthermore, we must draw to your attention (the fact) that that letter of 30 April 1996 stipulated that the validity of the offer was subject to your supplying, before taking up your duties, the documents required under the Conditions of employment of other servants of the European Communities and that, first, the extract from your police record has still not been furnished for inclusion on your file and, second, your birth certificate was supplied after the date on which you were to take up your duties...’

On 26 June 1996 the applicant sent back, duly signed, the contract of employment for three months as a member of the auxiliary staff, but stated that she was doing so ‘subject to the letter of 30 April 1996’.

On 12 July 1996 she lodged a complaint against the decision of 20 June 1996 altering the duration of her contract as a member of the auxiliary staff. That complaint was rejected on 13 November 1996 and the applicant brought the present action on 3 March 1997.

The claim for annulment

The right to claim protection of legitimate expectations extends to any individual who is in a situation in which it appears to him that the Community administration, by giving him precise assurances, has led him to entertain reasonable expectations (paragraph 31).

See: T-3/92 Latham v Commission [1994] ECRSC II-83, para. 58; T-534/93 Grynberg and Hall v Commission [1994] ECRSC II-595, para. 51; T-587/93 Ortega Urretavizcayav Commission [1996] ECRSC II-1027, para. 57; T-211/95 Petit-Laurentv Commission [1997] ECRSC II-57, para. 72

However, promises which do not take account of the provisions of the Staff Regulations cannot give rise to a legitimate expectation on the part of the person to whom they are made (paragraph 32).

See: 162/84 Vlachou v Court of Auditors [1986] ECR481, para. 6; T-123/89 Chomel v Commission [1990] ECR II-131, para. 30

The proposal of 30 April 1996 was not made with the intention of engaging the applicant in order to replace an official or a member of the temporary staff who was unable for the time being to perform his or her duties. It did not, therefore, fall within the scope of Article 52(a) of the Conditions of employment of other servants of the European Communities (‘the Conditions of employment’). The applicant cannot have thought that the offer of employment fell within the ambit of that provision, since the steps taken prior to the proposal of 30 April 1996 were intended to prolong her activities in the department to which she had been assigned, without there having ever been any question of replacing an official or a member of the temporary staff who was unable for the time being to perform his or her duties. In those circumstances, since Article 52(b) of the Conditions of employment limits the actual period of employment of auxiliary staff to one year ‘in all other cases’, the proposal contained in the contract at issue was manifestly illegal and could not give rise to any legitimate expectation on the part of the applicant.

By substituting on 7 May 1996, in place of the proposal of 30 April 1996, an offer which was in accordance with Article 52(b) of the Conditions of employment, the defendant restored the situation within a reasonable time to one which was in conformity with the rules in force; it thereby took into account the interests of the service and the interests of the applicant and complied with its duty to have regard for the welfare and interests of officials.

The first plea must therefore be rejected.

The second plea, alleging breach of the principle of sound administration and good management

The defendant's decision to offer the applicant employment for a period of three months is in accordance with Article 52(b) of the Conditions of employment.

The institutions enjoy a broad discretion to organise their departments to suit the tasks entrusted to them and to assign staff available to them in the light of such tasks, on condition, however, that the staff are assigned in the interests of the service and in conformity with the principle that assignment must be to an equivalent post (paragraph 42).

See:T-73/96 Forcat Icardo v Commission [1997] ECR-SC II-485, para. 26; T-98/96 Costacurta v Commission [1998] ECRSC II-49, para. 36

The applicant has adduced no evidence establishing a breach of the principle of sound administration and good management. The second plea must therefore be rejected.

The claim for compensation

Liability on the part of the Community presupposes that the applicant establishes the illegality of the conduct for which the institution concerned is criticised, actual damage and the existence of a causal link between that conduct and the harm which is alleged (paragraph 49).

See: T-36/93 Ojha v Commission [1995] ECRSC II-497, para. 130; T-35/96 Rasmussen v Commission [1997] ECRSC II-187, para. 82; T-142/95 Delvaax v Commission [1997] ECRSC II-1247, para. 109

However, the defendant cannot be criticised for having engaged in any illegal conduct. Consequently, the claim for compensation must be dismissed.

Operative part:

The application is dismissed.