JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

8 July 2015 ( *1 )

‛Civil service — ACER staff — Member of the contract staff — Non-renewal of a contract — Action for annulment — Admissibility of the action — Plea of illegality of Article 6(2) of ACER’s GIP having regard to Article 85(1) of the CEOS — Action for damages — Notice period — Non-material harm — Damages’

In Case F‑34/14,

ACTION under Article 270 TFEU,

DP, a former member of the contract staff of the Agency for the Cooperation of Energy Regulators, residing in Idrija (Slovenia), represented by S. Pappas, lawyer,

applicant,

v

Agency for the Cooperation of Energy Regulators (ACER), represented by P. Martinet and S. Vaona, acting as Agents, and D. Waelbroeck and A. Duron, lawyers,

defendant,

THE CIVIL SERVICE TRIBUNAL (Third Chamber)

composed of S. Van Raepenbusch, President, M.I. Rofes i Pujol and E. Perillo (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written procedure and further to the hearing on 4 March 2015,

gives the following

Judgment

1 By application received at the Tribunal Registry on 11 April 2014, DP seeks, first, the annulment of the decision of 20 December 2013 by which the Director of the Agency for the Cooperation of Energy Regulators (ACER or ‘the Agency’) refused to renew her contract and, secondly, that ACER be ordered to pay her damages of EUR 10000 in respect of the non-material harm she has allegedly suffered.

Legal context

2 The legal context consists, first, of Articles 3a and 85(1) of the version of the Conditions of Employment of Other Servants of the European Union applicable to the dispute (‘the CEOS’).

3 Secondly, Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing [ACER] (OJ 2009 L 211, p. 1) provides, in Article 28 thereof, entitled ‘Staff’, as follows: ‘1. The Staff Regulations [of Officials of the European Union], the [CEOS] and the rules adopted jointly by the European [Union] institutions for the purpose of applying [those] Staff Regulations and the [CEOS] shall apply to the staff of the Agency, including its Director. 2. The Administrative Board, in agreement with the [European] Commission, shall adopt appropriate implementing rules, in accordance with Article 110 of the Staff Regulations [of Officials of the European Union]. …’

4 In addition, Decision No 2011/11 of ACER’s Administrative Board of 1 June 2011 on the Adoption of General Implementing Provisions on the Procedures Governing the Engagement and the Use of Contract Staff at ACER (‘the GIP’) provides, in Article 6 thereof, entitled ‘Duration of contracts’, as follows: ‘1. [Members of the contract staff within the meaning of Article 3a of the CEOS] may be engaged under their first contract for a fixed period of at least three months and not more than five years. 2. The renewal of a contract in function groups II, III and IV shall be for [a] fixed period of at least three months and not more than five years. A second renewal without interruption leading to an indefinite-duration contract may only be granted if the first two contracts covered a total period of at least five years. …’

5 Lastly, paragraph 3 of Article 2 of Decision No 2013/11 of the Director of ACER of 28 May 2013 on renewal of contracts before the expiry date (‘Decision No 2013/11’) provides that, ‘[f]or a staff member having served in the Agency on contract(s) of definite duration for more than [one] year and up to [three] years, the decision on the renewal of the contract should be taken and communicated at the latest [three] months prior to the expiry date of the contract’.

Factual background to the dispute

6 The applicant was recruited by ACER on 1 January 2011 as a member of the contract staff under Article 3a of the CEOS, in function group II, at grade 5, step 1. The contract was concluded for one year, until 31 December 2011, then, following the addition of an amending clause, was renewed a first time for a two-year duration, until 31 December 2013.

7 By e-mail of 15 March 2013, the applicant informed ACER’s Human Resources Department (‘the Human Resources Department’) that she was interested in a second renewal of her contract. The Director of ACER (‘the Director’), acting as ACER’s authority empowered to conclude contracts of employment (‘the AECE’), was also informed.

8 The applicant, having received, on 1 October 2013, an e-mail from the Human Resources Department informing her that ‘the procedure for [her] contract renewal [was] ongoing’ and that ‘the file [would] be signed by [the Director the next day]’, was offered a contract on 2 October 2013 as a member of the contract staff under Article 3a of the CEOS on the same conditions as regards the function group, grade and step as the contract which would expire on 31 December 2013, for a fixed period of two years taking effect on 1 January 2014.

9 Being of the opinion that that new contract did not classify her at the correct grade and that it did not constitute a renewal of her initial contract, the applicant did not sign it and, on 9 October 2013, requested the Human Resources Department to ‘correct’ it. Following an exchange of e-mails between the applicant and ACER departments, the Director informed the applicant on 31 October 2013 that he was waiting to be informed of the position adopted by the Human Resources Department before taking a decision.

10 On 11 November 2013, the Director informed the applicant that, following a meeting with the Human Resources Department and ACER’s Legal Service, they were in the process of examining whether it was possible to modify the amending clause by which the initial contract had been renewed for a two-year period in order to increase that period to four years. The applicant replied, essentially, that she trusted that the Agency would find a solution which complied with the applicable rules and that she hoped soon to receive the ‘corrected version of the … renewal of [her] contract’.

11 By e-mail of 25 November 2013, the Agency’s Legal Service requested the European Commission’s Directorate-General for Human Resources and Security, essentially, whether, in the circumstances, the renewal of the applicant’s contract was possible having regard to Article 6 of the GIP.

12 By e-mail of 27 November 2013, the Commission’s DG Human Resources and Security forwarded an opinion from its ‘Relations with Public Administrations, Agencies and Administrative offices’ unit to the Human Resources Department. That legal opinion stated that the envisaged renewal did not comply with Article 6(2) of the GIP, but that that provision was itself contrary to Article 85(1) of the CEOS in so far as it did not provide for any possibility of derogation. It was added that, in those circumstances, it was appropriate to follow the reasoning set out in the judgment in Commission v Petrilli (T‑143/09 P, EU:T:2010:531), and to find that the AECE could renew the applicant’s contract provided that it stated why the interests of the service warranted, in that particular case, derogating from Article 6(2) of the GIP. The opinion also stated that Article 6 of the GIP could be amended subsequently in order to provide for the possibility of derogation, together with procedural safeguards if necessary.

13 On 12 December 2013, at a meeting of ACER’s Administrative Board, the Director drew the attention of its members to a possible inconsistency between Article 6(2) of the GIP and the CEOS. It is apparent from the minutes of that meeting that the Director also informed the Administrative Board that ACER was faced with the situation of a member of staff whose contract had already been renewed once but in respect of whom the cumulative duration of the initial contract and the first renewal was less than five years, therefore probably preventing a renewal of that contract for a second time.

14 By e-mail of 19 December 2013, the applicant, essentially, informed the Director that she was ready to sign the proposal for modification of the clause amending her initial contract, which would increase the duration of the first renewal from two years to four years. She stated that she did not agree with that solution but that she had no other option if she wished to continue working at the Agency.

15 By e-mail and registered letter of 20 December 2013, of which the applicant acknowledged receipt on 20 and 23 December 2013 respectively, the Director, acting as the AECE, informed her of his decision not to renew her contract (‘the non-renewal decision’). He stressed that he had taken that decision with regret but added that he had found no solution which would be satisfactory in legal terms, having regard to Article 85(1) of the CEOS and Article 6(2) of the GIP. The non-renewal decision did not refer to the opinion of the ‘Relations with Public Administrations, Agencies and Administrative offices’ unit which the Commission’s DG Human Resources and Security had forwarded to the Human Resources Department by e-mail of 27 November 2013.

16 By e-mail of 22 December 2013, the applicant wrote to the Director recalling, in list form, the various options successively envisaged by the Agency for the renewal of her contract and stating that she, for her part, simply wished to continue working for ACER (‘the e-mail of 22 December 2013’).

17 By e-mail of 23 December 2013, the Director informed the applicant, once more, of his regret at not having found a solution to the renewal of her contract and of the fact that none of the envisaged options had been considered to be ‘sufficiently robust to be viable’.

18 By e-mail of 30 December 2013, the applicant requested the Director to suspend the effects of the non-renewal decision and stated that she intended to bring a complaint setting out her lawyer’s arguments in support of the renewal of her contract. She also stressed the unexpected nature of the non-renewal decision and stated that she thought that she had a right to a notice period.

19 By e-mail of 31 December 2013, the Director reiterated to the applicant that there was no ‘legally viable’ option to renew her contract, assuring her that the Agency’s Human Resources Department and Legal Service would nevertheless review the situation and that she would be informed of any positive development.

20 By e-mail of 3 January 2014, the applicant informed the Director that, in the review of her situation, it would be necessary to take into account the principle of sound administration, the possibility afforded to the Agencies by the new Staff Regulations of Officials of the European Union, applicable as of 1 January 2014, to derogate from the general implementing provisions adopted by the Commission, the principle of the hierarchy of norms, the clarity of the wording of Article 85(1) of the CEOS and, lastly, the conflict between Article 6 of the GIP and Article 85 of the CEOS (‘the e-mail of 3 January 2014’). She also pointed out that, despite the fact that she had expressed her interest in the renewal of her contract nine months prior to its expiry, she had been given a notice period of only two working days following the communication of the non-renewal decision.

21 The same day, the Director informed the applicant that her e-mail of 3 January 2014 had been forwarded to the Agency’s Human Resources Department and Legal Service and that he would contact her again as soon as he had received their replies.

22 By e-mail of 13 January 2014, the Director informed the applicant that he had, with the assistance of the Agency’s Human Resources Department and Legal Service, reviewed her situation in the light of the arguments in the e-mail of 3 January 2014, but that those additional arguments did not provide any legal basis enabling him to renew the contract (‘the decision of 13 January 2014’). He added that Article 85 of the CEOS and Article 6 of the GIP were not incompatible, that the GIP had been submitted, prior to their adoption, to the Commission’s Legal Service, which had neither raised any objection nor made any comments in that regard, and that the combined application of Article 85 of the CEOS and Article 6 of the GIP left little margin for options in her particular case.

Forms of order sought

23 The applicant claims that the Tribunal should: — annul the non-renewal decision; — order ACER to pay her the sum of EUR 10000, by way of compensation for the non-material damage she considers herself to have suffered; — order ACER to pay the costs.

24 ACER contends that the Tribunal should: — declare the action inadmissible; — in the alternative, dismiss the action as unfounded; — order the applicant to pay the costs.

Law

Admissibility of the action

Arguments of the parties

25 ACER submits that the action was not brought within the time-limit laid down by Article 91(3) of the version of the Staff Regulations of Officials of the European Union applicable prior to the entry into force of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the [CEOS] (‘the Staff Regulations’). The e-mail of 22 December 2013, or even the applicant’s e-mail of 19 December 2013, should be deemed to be a complaint against the non-renewal decision within the meaning of Article 90(2) of the Staff Regulations. The Agency replied to that complaint by e-mail the next day, on 23 December 2013. The applicant’s subsequent e-mails, of 30 December 2013 and 3 January 2014, merely repeat the initial complaint. The two decisions responding to them are therefore purely confirmatory of the decision in the e-mail of 23 December 2013.

26 Since, according to ACER, the period for bringing an action began to run on 23 December 2013, the action brought on 11 April 2014 is out of time.

27 The applicant submits that the action is admissible. Counsel for the applicant requested, at the hearing, to be allowed to submit a further document in support of the action’s admissibility.

Findings of the Tribunal

28 The precise legal classification of documents sent by the applicant to the AECE before that applicant brings legal proceedings is a matter for the Tribunal alone and not for the parties (see, to that effect, judgment in Politi v ETF, C‑154/99 P, EU:C:2000:354, paragraph 16).

29 A letter from an official which does not expressly request the withdrawal of the decision in question but is clearly intended to challenge the decision adversely affecting him constitutes a complaint within the meaning of Article 90(2) of the Staff Regulations. In that respect, the content of the act takes precedence over its form (judgment in Mendes v Commission, F‑125/11, EU:F:2013:35, paragraph 34 and the case-law cited therein).

30 In the present case, it must first be observed that the applicant did not clearly express her wish to challenge the non-renewal decision until the e-mail of 3 January 2014, in which she asked the Director to ‘look into the issue again’, submitting several detailed pleas (see paragraph 20 above). The e-mail of 3 January 2014 must therefore be considered to be a complaint within the meaning of Article 90(2) of the Staff Regulations.

31 Next, it must also be noted that the applicant in the e-mail of 3 January 2014 raised complaints not mentioned in the e-mail of 19 December 2013 or the e-mail of 22 December 2013, in particular the conflict between Article 6(2) of the GIP and Article 85 of the CEOS and the infringement of the principle of the hierarchy of norms. The Director, in his capacity as the AECE, only replied to those complaints for the first time in his decision of 13 January 2014. Therefore, on any view, the period for bringing proceedings started to run on 13 January 2014, when that decision, taken in response to the e-mail of 3 January 2014 constituting the complaint, was communicated (see, as regards the admissibility of successive complaints, judgments in Ghignone and Others v Council, T‑44/97, EU:T:2000:258, paragraph 39; Collotte v Commission, F‑58/07, EU:F:2008:170, paragraph 32 and the case-law cited therein; and D’Agostino v Commission, F‑93/12, EU:F:2013:155, paragraph 30, against which an appeal has been brought before the General Court in Case T‑670/13 P). The action brought on 11 April 2014 was therefore not brought out of time.

32 It follows that the plea of inadmissibility raised by ACER and alleging that the action was brought out of time is unfounded and must be rejected, without it being necessary to rule on the applicant’s request to submit an offer of further evidence.

The claim for annulment of the non-renewal decision

33 In support of her claim for annulment, the applicant has raised in the application a main plea, alleging the illegality of Article 6(2) of the GIP in the light of Article 85(1) of the CEOS, and a subsidiary plea, alleging that the justification for the non-renewal decision was erroneous.

34 At the hearing, however, counsel for the applicant stated that he was withdrawing the subsidiary plea.

35 It is therefore necessary to rule on the single plea, alleging the illegality of Article 6(2) of the GIP in the light of Article 85(1) of the CEOS.

Arguments of the parties

36 The applicant claims that Article 6(2) of the GIP, on which the non-renewal decision is based, is contrary to Article 85(1) of the CEOS.

37 First, according to the applicant, Article 6(2) of the GIP, which does not allow the AECE to grant a second renewal unless the first two contracts cover a period of at least 5 years, inserts a derogation to the possibility of being granted a second renewal of a contract staff contract provided for in Article 85(1) of the CEOS. The effect of Article 6(2) of the GIP is to restrict the scope of Article 85(1) of the CEOS, by introducing a condition, for the grant of a second renewal, not provided for in the CEOS, namely that the person concerned must have worked at the Agency for at least five years.

38 Such a derogation is illegal, according to the applicant, having regard to the hierarchy of norms and the fact that the provisions of Article 85(1) of the CEOS are clear, exhaustive and precise and leave the administration no discretion to hold that certain contracts cannot be renewed a second time. The effect of Article 6(2) of the GIP is to enable the Agency to avoid renewing a contract for an indefinite period by offering the member of staff, arbitrarily, an initial contract and a first renewal for a combined period of less than the five-year duration required.

39 Secondly, the applicant submits, inasmuch as Article 6(2) of the GIP must be interpreted as inserting a derogation not to the possibility of having one’s contract renewed a second time, but to the rule that the second renewal must be granted for an indefinite period, it must also be held to be contrary to Article 85(1) of the CEOS.

40 In this connection, the applicant claims, relying on the judgment in Scheefer v Parliament (F‑105/09, EU:F:2011:41, paragraphs 51 and 53 to 55), that the rule concerning the indefinite duration of the second renewal was established in order to safeguard stable employment, which was a basic objective of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) and the framework agreement on fixed-term work concluded on 18 March 1999 which is annexed to it. Article 85(1) of the CEOS should therefore be interpreted in a manner which ensures that it has broad scope, since its purpose is to prevent the administration from abusing its power by using successive fixed-term contracts.

41 Lastly, at the hearing counsel for the applicant submitted that the GIP were adopted without consultation of the Agency’s Staff Committee and that they were inadequately publicised.

42 ACER, for its part, contends that the plea should be rejected, maintaining that Article 6(2) of the GIP is not inconsistent with Article 85(1) of the CEOS and that, therefore, there is no error of law vitiating the non-renewal decision.

43 First, ACER submits that, according to the judgment in Commission v Macchia (T‑368/12 P, EU:T:2014:266, paragraph 60), which is relevant by analogy in the present case, Article 85(1) of the CEOS cannot be interpreted as having the objective of guaranteeing continuity of employment for members of the contract staff.

44 Secondly, ACER submits that, according to the case-law, a member of the contract staff with a fixed-term contract has, in principle, no right to the renewal of his contract, which is merely a possibility and subject to the condition that it is in the interests of the service. The administration has wide discretion as regards whether to renew a contract. The duration of the employment relationship between an institution and a member of the contract staff is governed by the contract the parties have concluded.

45 Consequently, it infers, the renewal of contracts may be made subject to conditions provided this does not lead to the misuse of fixed-term contracts. ACER made that renewal subject to conditions by means of the GIP, which set out in a transparent way the criteria on the basis of which renewal decisions are taken. The GIP are ‘complementary [to] and consistent with’ Article 85(1) of the CEOS.

46 Thirdly, it contends that Article 6(2) of the GIP follows the model which the Commission suggested in 2011 in order to, first, harmonise the rules of the agencies and, secondly, ensure ‘symmetry of treatment between contract agents and temporary agents’ to avoid members of the contract staff obtaining an indefinite contract within a shorter period than members of the temporary staff within the same agency. Moreover, the Commission endorsed ACER’s implementing rules.

47 Furthermore, ACER states that it was unable to follow completely the procedure set out in Decision No 2013/11 since ‘[its basic] precondition (being eligible for renewal)’ was not satisfied in the present case.

48 Lastly, ACER submitted at the hearing that the complaints raised by counsel for the applicant during that hearing, alleging that the Agency’s Staff Committee was not consulted prior to the adoption of the GIP and that the GIP were not publicised, are new and therefore inadmissible.

Findings of the Tribunal

49 The applicant has raised a plea of illegality of Article 6(2) of the GIP in the light of Article 85(1) of the CEOS in support of the claim for annulment of the non-renewal decision.

50 As provided for in Article 85(1) of the CEOS, ‘[t]he contracts of contract staff referred to in Article 3a [of the CEOS] may be concluded for a fixed period of at least three months and not more than five years. They may be renewed not more than once for a fixed period of not more than five years. The initial contract and the first renewal must be of a total duration of not less than six months for function group I and not less than nine months for the other function groups. Any further renewal shall be for an indefinite period. ...’

51 As ACER has correctly submitted, although Article 85(1) of the CEOS provides for the possibility of a second renewal, this is neither a right conferred on the member of staff concerned nor a guarantee of any continuity of employment, but a possibility subject to the AECE’s discretion. According to the case-law, the institutions enjoy a wide discretion to organise their departments to suit the responsibilities entrusted to them and to assign their staff having regard to those responsibilities, provided, however, that that assignment is in the interests of the service (see, to that effect, judgments in Commission v Petrilli, EU:T:2010:531, paragraph 34 and the case-law cited therein, and Commission v Macchia, EU:T:2014:266, paragraphs 49 and 60).

52 Nevertheless, Article 6(2) of the GIP makes the possibility of granting a second renewal of the contract for an indefinite period subject to the prerequisite that the combined duration of the initial contract and its first renewal must be at least five years. Where that prerequisite is not satisfied, any possibility of renewal, on request or even at the institution’s own motion, is mandatorily excluded.

53 Where an institution or an agency is authorised to lay down general implementing provisions intended to supplement or implement hierarchically superior and binding provisions of the Staff Regulations or the CEOS, the competent authority may neither act contra legem, in particular by adopting provisions whose application would be contrary to the aims of the provisions of the Staff Regulations or would render them entirely ineffective, nor fail to comply with general legal principles such as the principle of sound administration, the principle of equal treatment and the principle of the protection of legitimate expectations (see, to that effect, judgment in Commission v Petrilli, EU:T:2010:531, paragraph 35 and the case-law cited therein).

54 According to the case-law, the general implementing rules adopted under the first paragraph of Article 110 of the Staff Regulations may lay down criteria capable of guiding the administration in the exercise of its discretionary power or of explaining more fully the scope of provisions of the Staff Regulations which are not wholly clear. However, they cannot lawfully, by way of explaining more fully a clear term of the Staff Regulations, reduce the scope of those regulations or of the CEOS or lay down rules which derogate from hierarchically superior provisions, such as the provisions of the Staff Regulations or the CEOS or general principles of law (judgments in Brems v Council, T‑75/89, EU:T:1990:88, paragraph 29 and the case-law cited therein, and Ianniello v Commission, T‑308/04, EU:T:2007:347, paragraph 38 and the case-law cited therein).

55 Thus, in the judgment in Brems v Council (EU:T:1990:88, paragraph 30), the Court of First Instance of the European Communities declared unlawful Articles 3 and 7 of the Decision of the Council of 15 March 1976 adopting general implementing provisions for Article 2(4) of Annex VII to the Staff Regulations, on the ground that, by seeking to explain more fully the term ‘any person’ in Article 2(4) of Annex VII to the Staff Regulations, Articles 3 and 7 of the Decision had imposed minimum and maximum age-limits applicable to persons treated as if they were a dependent child and had thereby automatically excluded from the scope of Article 2(4) of Annex VII to the Staff Regulations all persons between those age-limits, thus depriving the appointing authority of the possibility of using its discretion in each particular case.

56 In the light of the foregoing considerations, it must be held that Article 6(2) of the GIP restricts the scope of Article 85(1) of the CEOS in so far as it introduces a supplementary condition for the renewal of a contract as a member of the contract staff within the meaning of Article 3a of the CEOS which is not provided for in the CEOS and which hinders the exercise of the discretion conferred on the administration, without such a restriction being objectively justifiable in the interests of the service. An internal decision of ACER which is general in scope, such as the GIP, cannot lawfully restrict the scope of an explicit rule laid down in the Staff Regulations or the CEOS, unless it has been stipulated that this is expressly authorised (see, to that effect, judgment in Commission v Petrilli, EU:T:2010:531, paragraphs 31 and 36 and the case-law cited therein).

57 Moreover, the arguments put forward by ACER concerning the objectives pursued in the adoption of the GIP cannot be upheld.

58 First, neither the need to harmonise the practice of agencies and of the Commission in concluding contracts of employment with and employing members of the contract staff, nor the need to ensure ‘symmetry’ of treatment between members of the temporary staff and members of the contract staff as regards the duration of service required to be eligible for an indefinite contract, assuming those needs are demonstrated, are such as to warrant a breach of the principle of the hierarchy of norms.

59 Secondly, nor is the fact that the provisions of Article 6(2) of the GIP are identical to those of Article 6 of Commission Decision C(2004) 1313 of 7 April 2004 setting out general implementing provisions on the procedures governing the engagement and the use of contract staff at the Commission such as to warrant the AECE automatically waiving its discretion in connection with the renewal of a contract of a member of the temporary staff. Furthermore, it must be observed that Article 6 of Commission Decision C(2011) 1264 of 2 March 2011 on the general provisions for implementing Article 79(2) of the CEOS, governing the conditions of employment of contract staff employed by the Commission under the terms of Articles 3a and 3b of the CEOS, and which was adopted prior to the GIP, no longer makes a second renewal of the contract dependent on a minimum duration of the initial contract and its first renewal.

60 Lastly, in the defence, ACER also submits that ‘the Agency internally considered the possibility [of resorting] to a form of exceptional treatment’ but that, in the circumstances, ‘[the applicant’s] appraisals for the years 2011 and 2012 did not provide enough evidence of exceptional performance justifying a deviation from the applicable rules’.

61 Such an argument cannot be relied on profitably against the plea of illegality raised, inasmuch as Article 6(2) of the GIP does not provide for any exception to the condition requiring the cumulative duration of the initial contract and the first renewal to reach five years.

62 In any event, it is apparent from the documents in the file and, in particular, from the non-renewal decision that ACER refused to renew the applicant’s contract exclusively on the ground that, in her case, the condition laid down in Article 6(2) of the GIP requiring the person concerned to have been granted an initial contract and a first renewal with a cumulative duration of at least five years was not satisfied.

63 It is settled case-law that, although in the scheme of legal remedies provided for in Articles 90 and 91 of the Staff Regulations the administration may decide, when it expressly rejects a complaint, to vary the grounds on which it had adopted the contested measure, such variation may not take place after the proceedings against the contested measure have been brought before the Tribunal. Moreover, the administration is not entitled to substitute an entirely new statement of reasons for the initial, erroneous, statement in the course of the proceedings (judgment in Allen v Commission, F‑23/10, EU:F:2011:162, paragraph 98).

64 The justification of the non-renewal decision on the grounds of the applicant’s performance, submitted for the first time during the proceedings, cannot therefore be taken into consideration by the Tribunal in its review of the lawfulness of the non-renewal decision.

65 For the sake of completeness, it must be observed that that justification is clearly inconsistent with the documents in the file, from which it is apparent that, on several occasions, the Agency expressed its wish to maintain the employment relationship with the applicant.

66 Taking account of all the foregoing and in the light, in particular, of the case-law cited in paragraphs 53 to 56 above, the plea alleging the illegality of Article 6(2) of the GIP must be upheld and the non-renewal decision annulled, without it being necessary to rule on the two new complaints submitted at the hearing by counsel for the applicant.

The claim for damages

Arguments of the parties

67 The applicant submits that she has suffered significant non-material harm, which would not be compensated for by the annulment of the non-renewal decision, on account of ACER’s delay in adopting and notifying her of the non-renewal decision in breach of Article 2 of Decision No 2013/11. That article provides for a time-limit of three months prior to the expiry of the staff member’s current contract for this purpose.

68 The applicant submits that she was notified of the non-renewal decision on 20 December 2013, a few days before the expiry of her contract on 31 December 2013, even though, since October, she had been repeatedly reassured that a solution would be found and her contract renewed. The insecurity and the psychological pressure resulting from that delay became such that the applicant was prepared to accept the offer of 19 December 2013, which she nevertheless knew to be illegal and counter to her interests in the long term. The delay in renewing her contract thus aggravated the negative effects of the non-renewal decision. After she was notified of that decision, the applicant developed an acute stress reaction, diagnosed on 23 December 2013.

69 The applicant requests the Tribunal to determine, on equitable principles, the compensation payable in respect of the non-material harm she has suffered. In her view, a sum of EUR 10000 would be appropriate.

70 ACER admits that Decision No 2013/11 was not observed in the present case, but contends that the claim for damages should be rejected. First, it submits, the applicant has not adduced any evidence in support of the claim relating to her state of health and, in any event, the causal link between the delay in the adoption of the non-renewal decision and the deterioration in the applicant’s state of health has not been proved.

71 Secondly, ACER submits that there is no right to the renewal of one’s contract and that the applicant had known since the signature of the first amending clause in 2011 that her contract could not be renewed a second time since the condition laid down in Article 6(2) of the GIP would not be satisfied. The Agency submits that it drew her attention to the legal difficulties connected with the renewal of her contract.

72 Thirdly, ACER submits that, by seeking, in the period from October to December 2013, a legally viable solution in order to retain the applicant in her position, it complied with its duty of care, showing diligence and understanding vis-à-vis the applicant.

73 In the alternative, ACER takes the view that the amount of compensation should be reduced having regard to the fact that the applicant was unemployed for only three months before being re-employed by the Council of the European Union in a position which is at least equivalent to that which she held within ACER. In addition, since she received several offers from other EU institutions during her last months of activity at the Agency, the applicant had the opportunity to reduce, or even eliminate, the negative consequences of the termination of her contractual relationship with ACER.

Findings of the Tribunal

74 Pursuant to the third paragraph of Article 2 of Decision No 2013/11, in the case of a staff member having served in the Agency on a contract of definite duration for more than one year and up to three years, the decision on the renewal of the contract must be taken and communicated at the latest three months prior to the expiry date of the contract.

75 It is not disputed that, in the present case, the applicant was notified of the non-renewal decision on 20 December 2013, only eleven days before the date of expiry of her contract, on 31 December 2013, and therefore in flagrant breach of the third paragraph of Article 2 of Decision No 2013/11.

76 Furthermore, although Decision No 2013/11 was adopted on 28 May 2013, the fact remains that Article 6(2) of the GIP, on which the AECE relied in order to justify the non-renewal decision, had been in force since 1 June 2011. ACER, which the applicant had alerted more than nine months prior to the expiry of her contract, therefore had enough time to search for a solution enabling it to extend the applicant’s contract, without being obliged to exceed the time-limit set for that decision.

77 It must thus be held that ACER has committed a fault on the basis of which the applicant may be entitled to compensation.

78 Moreover, contrary to what ACER contends, the applicant has proved to the requisite legal standard that she has suffered non-material harm flowing from the uncertainty which characterised her professional life during the last months of her contract, due to the absence of a decision as regards whether her employment relationship with ACER was to be maintained, and that there is a causal link between the delay in the adoption of the non-renewal decision and that non-material harm.

79 The steps taken by the applicant to find another job and the fact that she received and declined several offers of employment during her last months of activity at the Agency moreover support the claim that her professional performance was of a high level and thus even serve to highlight the situation of uncertainty in which ACER had placed her.

80 Lastly, the applicant has demonstrated that the annulment of the non-renewal decision would not adequately compensate for the non-material harm suffered, having regard in particular to ACER’s failure to comply with the third paragraph of Article 2 of Decision No 2013/11.

81 Therefore, it is appropriate to uphold the claim for damages and to order ACER to pay the applicant damages, assessed on equitable principles, of EUR 7000, without prejudice to the measures which ACER will be required to take in consequence of the annulment of the non-renewal decision.

Costs

82 Pursuant to Article 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.

83 It follows from the reasoning set out in the present judgment that ACER is the unsuccessful party. Moreover, in her pleadings, the applicant has expressly applied for ACER to pay the costs. Since the circumstances of the present case do not warrant the application of Article 102(1) of the Rules of Procedure, ACER must bear its own costs and be ordered to pay the costs incurred by the applicant.

On those grounds, THE CIVIL SERVICE TRIBUNAL (Third Chamber) hereby:

1. Annuls the decision of 20 December 2013 by which the Director of the Agency for the Cooperation of Energy Regulators refused to renew DP’s contract;

2. Orders the Agency for the Cooperation of Energy Regulators to pay DP the sum of EUR 7000;

3. Declares that the Agency for the Cooperation of Energy Regulators is to bear its own costs and orders it to pay the costs incurred by DP.

Van Raepenbusch Rofes i Pujol Perillo Delivered in open court in Luxembourg on 8 July 2015. W. Hakenberg Registrar S. Van Raepenbusch President

( *1 ) Language of the case: English.