JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

23 November 2010

Case F-8/10

Johan Gheysens

v

Council of the European Union

(Civil service — Member of the auxiliary contract staff — Non-renewal of contract — Obligation to state the reasons on which the decision is based)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, by which Mr Gheysens seeks, inter alia, annulment of the decision not to extend his fixed-term contract beyond 30 September 2009.

Held: The applicant’s action is dismissed. The applicant is ordered to bear all the costs.

Summary

1. Procedure — Application initiating proceedings — Formal requirements

(Statute of the Court of Justice, Art. 21, first para., and Annex I, Art. 7(3); Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e))

2. Officials — Actions — Acts adversely affecting an official — Definition — Decision not to renew the contract of an auxiliary contract agent

(Staff Regulations of Officials, Arts 25 and 90(1))

3. Officials — Members of the contract staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Judicial review — Limits

(Conditions of Employment of Other Servants, Art. 88)

1. Pursuant to Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal, the application must state the pleas in law and the arguments of fact and law relied on. Those particulars must be sufficiently clear and precise to enable the defendant to prepare his defence and to enable the Tribunal to give judgment in the action without having to seek further information, if appropriate. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly, in the text of the application itself. That is all the more true since, according to Article 7(3) of Annex I to the Statute of the Court of Justice of the European Union, the written stage of the procedure before the Tribunal is to comprise, in principle, a single exchange of written pleadings, unless the Tribunal decides otherwise. That particular feature of the procedure before the Tribunal explains why, in contrast to the provisions in respect of cases before the Court of Justice of the European Union or the General Court in the first paragraph of Article 21 of the Statute of the Court of Justice, the statement of the pleas in law in the application may not be brief.

(see para. 60)

See:

T-85/92 De Hoe v Commission [1993] ECR II-523, para. 20

F-1/08 Nijs v Court of Auditors [2008] ECR-SC I-A-1-229 and II-A-1-1231, para. 24; F-134/07 and F-8/08 Adjemian and Others v Commission [2009] ECR-SC I-A-1-149 and II-A-1-841, under appeal to the General Court of the European Union, Case T-325/09 P

2. A decision refusing to renew a fixed-term contract is an act adversely affecting the person concerned within the meaning of Article 25 of the Staff Regulations if it is distinct from the contract in question, which will be particularly the case if it is based on new factors or if it constitutes an expression of the position of the administration adopted following a request from the member of staff concerned and dealing with the possibility, provided for in the contract, of renewing that contract. Reasons must be given for such a refusal decision.

(see para. 64)

See:

C-150/03 P Hectors v Parliament [2004] ECR I-8691, para. 40; C-561/08 P and C-4/09 P Commission v Potamianos, not published in the ECR, paras 45, 46 and 48

T-160/04 Potamianos v Commission [2008] ECR-SC I-A-2-75 and II-A-2-469, paras 21 and 23; T-404/06 P ETF v Landgren [2009] ECR II-2841, paras 143 to 170

3. The non-renewal of a fixed-term contract falls within the broad discretion of the competent authority and review by the European Union judicature is therefore limited to ascertaining that there has been no manifest error or misuse of powers. The renewal of a fixed-term contract is an option left to the discretion of the authority empowered to conclude contracts of employment, subject to the condition that it is in accordance with the interest of the service.

When taking a decision concerning the situation of a member of temporary staff, the competent authority must take account of all the factors which may affect its decision and, in particular, the interests of the member of temporary staff concerned. That follows from the administration’s duty to have regard to the welfare of its staff, which reflects the balance of reciprocal rights and obligations established by the Staff Regulations and, by analogy, the Conditions of Employment, in the relationship between the official authority and its staff.

On the other hand, having regard to the rule that a permanent post appearing in the list of an institution’s budgetary posts must, in principle, by filled by the recruitment of an official and to the interest of the service in employing an official to perform tasks which are permanent in nature, the continuity of the service which the applicant invokes is not sufficient to establish a manifest error of assessment.

(see paras 75, 76 and 81)

See:

T-7/01 Pyres v Commission [2003] ECR-SC I-A-37 and II-239, paras 50, 51 and 64; T-258/03 Mausolf v Europol [2005] ECR-SC I-A-45 and II-189, para. 49

F-35/07 Klug v EMEA [2008] ECR-SC I-A-1-387 and II-A-1-2127, paras 65 to 67