ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

28 September 2015

Christiana Kriscak

v

European Police Office (Europol)

‛Civil service — Europol staff — Europol Convention — Europol Staff Regulations — Appendix 1 to the Europol Staff Regulations — List of the posts given in bold characters which may be filled only by personnel engaged from the competent authorities referred to in Article 2(4) of the Europol Convention — Restricted posts — Europol Decision — Posts which may be filled only by a person recruited from a competent authority within the meaning of Article 3 of the Europol Decision — Application of the CEOS to Europol staff — Non-renewal of a fixed-term temporary contract — Refusal to grant an indefinite temporary contract — Action for annulment — Action for compensation’

Application:

under Article 270 TFEU, in which Ms Kriscak seeks, in particular, annulment of the implied decision of the European Police Office (Europol) rejecting her request that her fixed-term temporary contract, which expired on 30 November 2013, be renewed for an indefinite period.

Held:

The action is dismissed as manifestly unfounded. The European Police Office is to bear its own costs and is ordered to pay one third of the costs incurred by Ms Kriscak. Ms Kriscak is to bear two thirds of her own costs.

Summary

Actions brought by officials — Europol staff — Interest in bringing proceedings — Decision not to award an indefinite temporary contract to a staff member who is not eligible for such a contract — Plea based on infringement of essential procedural requirements — Invalid plea in law

Actions brought by officials — Request under Article 90(1) of the Staff Regulations — No reply from the administration deemed to constitute an implied decision rejecting the request — Infringement of duty to have regard to the interests of officials — None

Although the administration is not required to state the reasons for its decision to renew a temporary contract on the date when it expires, it is, however, required to state the reasons for a decision by which it rejects a request from a staff member seeking the renewal of his contract, since that decision constitutes an act adversely affecting him. (see para. 46) See: Judgment of 27 November 2012 in Sipos v OHIM, F‑59/11, EU:F:2012:164, para. 71

A EU institution may remedy a possible lack of a statement of reasons by appropriate reasoning provided at the stage of the response to the complaint, as the reasons for that decision are deemed to coincide with the reasons for the decision against which the complaint was made. With regard to a decision adopted by implication, therefore, where there is necessarily no statement of reasons, the institution concerned may satisfy its obligation to state reasons arising from Article 25 of the Staff Regulations and Article 296 TFEU by setting out the grounds for the decision in question in the decision rejecting the complaint. (see paras 47, 48) See: Judgment of 18 September 2003 in Lebedef and Others v Commission, T‑221/02, EU:T:2003:239, para. 62 Order of 20 November 2012 in Marcuccio v Commission, T‑491/11 P, EU:T:2012:608, para. 24

It is clear from the rules on the award of indefinite contracts adopted by the Management Board of the European Police Office (Europol) that such contracts can only be awarded to staff occupying posts not included in the list of restricted posts. If a Europol staff member occupies a restricted post he may not be offered an indefinite contract, and Europol is therefore fully entitled not to set up a panel to consider the possibility of granting the person concerned such a contract. Even though Europol can, under Article 3 of the Decision of the Europol Management Board of 7 February 2013, make an exception to the rule that a restricted post must be occupied by a person recruited from the competent authorities of the Member States within the meaning of Article 3 of Decision 2009/371 establishing Europol, that does not allow it to derogate from the prohibition on concluding an indefinite contract with such a staff member. Where a restricted post is filled by a recruitment procedure with no restriction on candidates, Article 3(2) of the Decision of the Europol Management Board of 7 February 2013 provides that the successful candidate may only be offered a fixed-term contract, renewable once, likewise for a fixed term. (see paras 62-64)

The fact that the administration did not adopt an express decision on a request submitted under Article 90(1) of the Staff Regulations does not constitute a breach of the duty to have regard to the interests of staff. Under Article 90(1) it is possible for the administration not to give an express reply to such a request within the time-limit laid down in the Staff Regulations, in which case there is deemed to be an implied decision, against which a complaint may be lodged. Consequently, the mere fact that an institution does not give an express reply to a request within the time-limit laid down by the Staff Regulations does not, in itself, constitute a breach of the duty to have regard to the interests of the person concerned. (see para. 71)

The administration has a wide discretion with regard to the renewal of contracts and, in that context, review by the Courts must be limited to ascertaining whether, regard being had to the various considerations which have influenced the administration in making its assessment, it remained within unimpeachable limits and has not used its power in a manifestly incorrect way. Furthermore, the duty to have regard to the interests of staff implies in particular that when the competent authority takes a decision concerning the situation of a 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. Having regard specifically to the institutions’ wide discretion to assess the interests of the service, review by the Union judicature must be limited to the question whether the competent authority remained within reasonable limits and did not use its discretion in an incorrect way. In that regard, observance of the duty to have regard to the interests of staff and the concept of the interests of the service do not require the administration, before deciding not to renew a temporary staff contract, to consider first whether the staff member might not be redeployed to another post. The administration is therefore not under any obligation, before adopting a decision not to renew a temporary staff contract, to find out whether there is another post in which the person concerned might usefully be employed in the interests of the service. In that context, with regard to clause 5, point 1, of the framework agreement on fixed-term work, set out in the annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, and which aims to prevent abuse in the use of fixed-term contracts, contract staff are not entitled to a certain continuity of employment. (see paras 72-74, 77) See: Judgment of 21 May 2014 in Commission v Macchia, T‑368/12 P, EU:T:2014:266, para. 57 Judgment of 25 June 2014 in Molina Solano v Europol, F‑66/13, EU:F:2014:168, para. 54

The principle of equal treatment requires in particular that comparable situations are not treated differently and that different situations are not treated equally unless such treatment, whether different or equal as the case may be, is objectively justified. As regards a staff member of the European Police Office (Europol) occupying a restricted post, he is not, when it comes to the possible renewal of his contract, in a situation equal or comparable to that of a Europol staff member who is not in a restricted post and who, under Article 57(3) of Decision 2009/371 establishing Europol, may only have his contract renewed for an indefinite period. (see paras 79, 80) See: Judgments of 28 April 2009 in Balieu-Steinmetz and Noworyta v Parliament, F‑115/07, EU:F:2009:41, para. 26, and 25 June 2014 in Molina Solano v Europol, F‑66/13, EU:F:2014:168, para. 18

An official has no legitimate interest in the annulment of a decision for a formal defect, and in particular for a breach of the right to be heard before any decision adversely affecting him, where the administration has no scope for the exercise of discretion but is bound to act as it has done. In such a situation where the powers of the administration are circumscribed, the annulment of the contested decision will inevitably, once the defect has been rectified, result in the adoption of the same decision, in substance, as the annulled decision. That is true of a decision not to renew a fixed-term contract of a staff member of the European Police Office (Europol), since it is evident from a combined reading of Article 39(4) and Article 57(3) of Decision 2009/371 establishing Europol that Europol could not grant the staff member’s request for an indefinite contract. Consequently, although the contested decision was adopted without hearing the staff member concerned, which is a breach of essential procedural requirements, the fact remains that, even if Europol had observed the person’s rights of defence and had heard him before adopting that decision, in accordance with Article 41 of the Charter of Fundamental Rights of the European Union, it would have had to adopt the same decision, in substance, as the contested decision since its powers were circumscribed. (see paras 86-88) See: Judgment of 29 April 2004 in Parliament v Reynolds, C‑111/02 P, EU:C:2004:265, paras 59 to 61