JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

28 June 2007

Case F-38/06

Irène Bianchi

v

European Training Foundation (ETF)

(Civil Service – Members of temporary staff – Fixed-term contract – Non‑renewal – Incompetence – Duty to state reasons – Manifest error of assessment)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Bianchi seeks annulment of the ETF’s decision of 24 October 2005 not to renew her fixed-term contract of employment as a member of the temporary staff, together with award of damages for the loss she suffered as a result of the contested decision.

Held: The action is dismissed. The parties are ordered to bear their own costs.

Summary

1. Officials – Decision affecting the administrative situation of an official

(Staff Regulations, Art. 26)

2. Officials – Internal instruction of an institution

3. Officials – Temporary staff – Recruitment – Renewal of a fixed-term contract

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

1. The purpose of first paragraph of Article 26 of the Staff Regulations is to guarantee an official’s right to a fair hearing by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his ability, efficiency or conduct which are not included in his personal file. A decision based on such factual matters is therefore contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality.

However, although it is regrettable that documents referred to in Article 26 of the Staff Regulations were not placed on an official’s personal file, that fact is not enough to justify annulling a decision where the person concerned has been given a proper opportunity, before the contested decision was taken, to submit his comments on the facts reported in those documents, and where he was actually aware of their content before the expiry of the time-limit for complaints, so that the conditions in which he was able to secure his right to a fair hearing would not have been substantially different if the disputed documents had been included in his personal file.

(see paras 45-46, 48)

See:

21/70 Rittweger v Commission [1971] ECR 7, paras 29 to 41

T-78/92 Perakis v Parliament [1993] ECR II‑1299, para. 27; T‑109/92 Lacruz Bassols v Court of Justice [1994] ECR-SC I‑A‑31 and II‑105, para. 68; T-7/01 Pyres v Commission [2003] ECR‑SC I‑A‑37 and II‑239, para. 70

2. A mere draft guide for the staff of an institution, which has not been finalised or formally adopted by the administration and whose content is simply for guidance, does not constitute a decision capable of creating rights and obligations for those to whom it is addressed. The fact that the draft was published on the administration’s intranet and that the period of notice it proposes in the event of dismissal or non-renewal of a temporary contract has been applied in practice by the administration does not prove that it constitutes a measure which is binding on the administration and which is capable of creating individual rights for the staff.

(see paras 80-81)

3. The competent authority enjoys a wide discretion with regard to the non-renewal of fixed-term contracts of members of the temporary staff, and review by the Community judicature must be confined to ascertaining that there was no manifest error in the assessment of the interests of the service, or misuse of powers.

As part of its duty to have regard for the welfare of its staff, the competent authority should, when taking a decision concerning the situation of a member of staff, take into consideration all the factors which may affect its decision and, in particular, the interests of the staff member concerned. That is true where he has the opportunity to assert his interests at an interview with the responsible authority before the non-renewal decision is taken, and where that decision is taken after consultation of the departments where he has worked and of the department to which he would have been posted if his contract had been renewed. A member of the temporary staff has no entitlement to have his contract renewed, renewal being merely a possibility which is subject to the condition that it is in the interests of the service.

(see paras 92-94, 96-98)

See:

C-298/93 P Klinke v Court of Justice [1993] ECR I‑3009, para. 38

T-13/95 Kyrpitsis v ESC [1996] ECR-SC I‑A‑167 and II‑503, para. 52; T-223/99 Dejaiffe v OHIM [2000] ECR-SC I‑A‑277 and II‑1267, paras 51 and 53; T-7/01 Pyres v Commission [2003] ECR‑SC I‑A‑37 and II‑239, paras 51 and 64; T-258/03 Mausolf v Europol [2005] ECR-SC I‑A‑45 and II‑189, para. 49