CELEX: 62013FJ0117
Language: en
Date: 2014-09-17
Title: Judgment of the Civil Service Tribunal (Third Chamber) of 17 September 2014. # Kari Wahlström v European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex). # Civil service - Frontex staff - Temporary staff - Non-renewal of a fixed term contract - Renewal procedure - Article 41(2)(a) of the Charter of Fundamental Rights of the European Union - Right to be heard - Infringement - Influence on the content of the decision. # Case F-117/13.

Parties
               Grounds
               Operative part
               
            
            Parties
            In Case F‑117/13,
            ACTION under Article 270 TFEU, 
            Kari Wahlström, former member of the temporary staff of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, residing in Espoo (Finland), represented by S. Pappas, lawyer,
            applicant,
            v
            European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex),  represented by S. Vuorensola and H. Caniard, acting as Agents, assisted by D. Waelbroeck and A. Duron, lawyers,
            defendant,
            THE CIVIL SERVICE TRIBUNAL (Third Chamber),
            composed of S. Van Raepenbusch (Rapporteur), President, R. Barents and K. Bradley, Judges,
            Registrar: P. Cullen, Administrator,
            having regard to the written procedure and further to the hearing on 18 June 2014,
            gives the following
            Judgment 
            
            Grounds
            1. By application received at the Registry of the Tribunal on 30 November 2013, Mr Wahlström requests the annulment of the decision of the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), of 19 February 2013, not to renew his contract as a member of the temporary staff. 
            Legal context 
            2. Under Article 17 of Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349, p. 1), the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) are to apply to Frontex’s staff. 
            The CEOS 
            3. Under Article 2 of the CEOS, in the version in force at the material time:
            ‘For the purposes of these conditions of employment, “temporary staff” means: 
            (a) staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;
            …’
            4. As regards the termination of the contract, Article 47 of the CEOS, in the version in force at the material time, provides:
            ‘Apart from cessation on death, the employment of temporary staff shall cease:
            …
            (b) where the contract is for a fixed period:
            (i) on the date stated in the contract;
            (ii) at the end of the period of notice specified in the contract giving the servant or the institution the option to terminate earlier. …’ 
            The procedure for renewal of contracts of members of the temporary staff within Frontex 
            5. At the material time, the contract renewal procedure for temporary staff within Frontex was organised by means of policy guidelines, which were communicated on 26 July 2010 to Frontex’s staff by Administrative Notice No 40, the objective of which was, inter alia, to ensure that the process is consistent, transparent and fair (‘the guidelines’). According to point 2 of the guidelines, the renewal procedure consists of four stages: 
            – after the member of staff has shown his interest in the renewal of his contract, the reporting officer writes his comments and his proposal regarding renewal on a form for that purpose; 
            – the countersigning officer assesses the proposal from the reporting officer and indicates his agreement or his disagreement and the reasons for it on the same form; if the reporting officer and the countersigning officer disagree, the latter must state the reasons for his disagreement in writing;
            – the Director of the Division concerned makes a recommendation on the form;
            – the Executive Director takes the final decision.
            6. Pursuant to point 3(a) of the guidelines: 
            ‘When [the] Executive Director decides to renew the contract for [five] years, [the Human Resources department] will prepare a letter offering the staff member a renewal of the contract for this period … 
            After receiving [a] positive answer from the staff member, [the Human Resources department] will prepare a reviewed contract which will be ready [two] months before the expiry of the current contract waiting for the staff member acceptance and signature …’ 
            7. Point 3(c) of the guidelines states: 
            ‘[Where the] Executive Director’s decision is not to renew the contract, [the Human Resources Department] will prepare a letter reflecting the arguments given by the Reporting Officer (business reasons, performance related reasons, or both). The letter will be signed by the Executive Director and given to the staff member 12 months in advance of the [expiry] date of the current contract.’ 
            Facts 
            8. The applicant entered the service of Frontex on 1 August 2006 as a member of the temporary staff within the meaning of Article 2(a) of the CEOS for a renewable period of five years. He was initially appointed Head of the Administrative Services Unit of Frontex and classified at grade A*12, step 2. 
            9. At the beginning of 2008, a new tier of management made up of ‘Divisions’, headed by ‘Directors of Divisions’, was created between the units and the Executive Director. In Spring 2008, a selection procedure for the middle management posts of Directors of Divisions was launched. The applicant, encouraged at that point by the Executive Director to take part in that procedure, applied for the post of Director of the Administrative Division; his application was, however, not successful and Mr C. was selected to occupy that post. 
            10. Following an internal selection procedure and in accordance with an amendment to his contract, signed on 22 June 2010, the applicant was appointed Head of Frontex’s Operational Office in Piraeus (Greece) with effect from 1 August 2010. His duties as Head of Unit of Administrative Services had been transferred in June 2010 to the Director of the Administrative Division, Mr C., who, in that capacity, was also his immediate superior.
            11. As regards the appraisal of the applicant’s professional performance, an appraisal report was finalised in November 2009 in respect of the year 2008. In that report, the Director of the Administrative Division, Mr C., the applicant’s direct immediate superior and, as such, his reporting officer, and the Deputy Executive Director, acting as countersigning officer, assessed the applicant’s performance at level III, since, in their view, he had ‘partly met expectations with regard to efficiency, ability and conduct in the service’. By contrast, in the following appraisal report, which was finalised on 23 June 2010 in respect of the year 2009, the same reporting officer and countersigning officer rated the applicant’s performance at level II, as he had, in their view, ‘fully met expectations with regard to efficiency, ability and conduct in the service’. Lastly, on 23 February 2011, a draft appraisal report covering the year 2010 was sent to the applicant, in which the reporting officer and the countersigning officer, who had changed and who were, respectively, the Deputy Executive Director and the Executive Director, assessed the applicant’s performance at level III.
            12. On 28 April 2011, the applicant appealed against the draft appraisal report covering the year 2010 to the Joint Appraisal Committee established by Article 13 of the Decision of the Executive Director of Frontex of 27 August 2009 establishing a Staff Appraisal Procedure. On 13 June 2012, that committee issued its opinion, in which it concluded that ‘[w]ith regard to the lack of objectives set in the [report] as well as insufficient documentation to sustain some of the conclusions’, there was a need for ‘improvement regarding the [impartiality] and [objectivity]’ of the report and that ‘[d]ue to the [applicant’s] long period of sick leave in 2011 and the resulting difficulty [in carrying out] all steps of the appraisal … procedure, … on the one hand … the appropriate procedure [was not] followed, however on the other hand [the Joint Appraisal Committee could not] assign clear responsibility for this to [the reporting officer] and/or [the countersigning officer]’.
            13. By email of 11 July 2012, the applicant was informed that the countersigning officer had decided to confirm the appraisal report in respect of 2010 and not to make any amendment to it. The applicant challenged that report before the Tribunal which, by the judgment in Case F‑116/12 Wahlström  v Frontex  (EU:F:2013:143, under appeal in Case T‑653/13 P), dismissed the action.
            14. Furthermore, as regards the renewal of the applicant’s contract as a member of the temporary staff, which was due to expire on 31 July 2011, the Human Resources Department asked the applicant, by email of 22 July 2010, whether he was interested in the renewal of his contract, in order to ascertain whether it was necessary to ‘start the renewal process 12 months in advance’, as provided by the guidelines. By email of the same date, the applicant responded in the affirmative, stating that his ‘interest [was] even stronger … in the present duties, circumstances and future perspectives [of the post], where [he could] serve Frontex supported by [his] education as a coast guard officer and [his] 20 years long career in the field of Border Management’. The Human Resources Sector replied to the applicant immediately, by return of email, that it was going to ‘start’ the contract renewal process and that a decision could be expected in that regard by the end of September or beginning of October 2010. 
            15. During a meeting on 9 December 2010, the Executive Director, in his capacity as the authority empowered to conclude contracts of employment of Frontex (‘the AECE’), informed the applicant of his intention not to renew the applicant’s contract. The following day, in accordance with the recommendation of the Deputy Executive Director who, as the applicant’s reporting officer, had stated, in the contract renewal form, that his professional performance over the last four years had not met expectations, the Executive Director formally adopted the decision not to renew the applicant’s contract. That decision was notified to the applicant on 16 December 2010. 
            16. The decision of 10 December 2010 of the Executive Director of Frontex not to renew the applicant’s contract was subject to a pre-litigation administrative procedure, then challenged by the applicant before the Tribunal which, by the judgment in Case F‑87/11 Wahlström  v Frontex  (EU:F:2013:10), annulled that decision on the ground of infringement of essential procedural requirements, the Tribunal having found that the procedure for the renewal of the applicant’s contract had been vitiated by a lack of competence on the part of the reporting officer who was consulted. Following that annulment, the Executive Director of Frontex, in his capacity as the AECE, confirmed, on 19 February 2013, the decision not to renew the applicant’s contract (‘the contested decision’), which was notified to the applicant on 22 February 2013, with the new contract renewal form completed by the reporting officer and the countersigning officer.
            17. On 23 April 2013 the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations. That complaint was rejected by a decision of the AECE of 21 August 2013. 
            Forms of order sought 
            18. The applicant claims that the Tribunal should: 
            – annul the contested decision; 
            – exercise its ‘full jurisdiction to ensure the effectiveness of its decision’;
            – order Frontex to pay the costs. 
            19. Frontex contends that the Tribunal should: 
            – dismiss the action; 
            – order the applicant to pay the costs. 
            Law 
            The claim for annulment 
            20. In support of his claims for annulment, the applicant puts forward five pleas in law, alleging (i) infringement of the rights of the defence, (ii) infringement of point 3(a) of the guidelines, (iii) infringement of the principle of the protection of legitimate expectations, (iv) failure to comply with the duty to have regard for the welfare of officials and, (vi) manifest error of assessment.
            21. In his first plea, the applicant alleges that Frontex did not give him a hearing before adopting the contested decision, which constituted an act adversely affecting him with possible serious consequences for his professional situation, since, as it was based on an appraisal of his attributes and qualifications, it deprived him of his employment. Such a decision must therefore be interpreted as a decision taken following proceedings instituted against the applicant. 
            22. The applicant also observes that the right to be heard is a fundamental principle of EU law, which prevails over the guidelines, so tha t even if those guidelines do not provide for consultation with the staff concerned, that fact cannot stand in the way of the application of the abovementioned principle. It is only in very special cases, when it is, in practice, impossible or incompatible with the interests of the service to carry out prior consultation of the person concerned, that the requirements of that principle could be met by a hearing as soon as possible after the adoption of the adverse decision. In the present case, Frontex did not consult the applicant either before or at the first opportunity after the adoption of the contested decision.
            23. Frontex does not dispute that the contested decision adversely affects the applicant, nor that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question. However, Frontex argues that the mere fact that a decision is, from a procedural point of view, a measure adversely affecting a person is not sufficient to require the administration to give the staff member concerned a proper hearing before adopting that decision. The administrative procedure resulting in the adoption of the adverse decision must also have been brought against the person concerned. However, it is argued, that is not the case in relation to the procedure to renew temporary staff contracts, which applies, in accordance with the same rules and assessment criteria, to all temporary staff whose contracts expire in the near future and who, in fact, want to renew them. It would, in those circumstances, be contradictory to say that such proceedings are brought against the staff member concerned.
            24. At the hearing, Frontex also took the view that Article 41(2)(a) of the Charter of Fundamental Rights of the European Union did not require it to hear the applicant on the renewal of his contract since such a renewal could not adversely affect him.
            25. In that regard, it must be pointed out that, according to settled case-law, the rights of the defence constitute a general principle of EU law in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, which must be guaranteed even in the absence of any rules governing the procedure in question ( Belgium  v Commission , 234/84, EU:C:1986:302, paragraph 27; Germany  v Commission , C‑288/96, EU:C:2000:537, paragraph 99; and Commission  v De Bry , C‑344/05 P, EU:C:2006:710, paragraph 37).
            26. In the present case, the applicant submits that the contested decision was taken following a procedure initiated against him in so far as it sanctions him by depriving him of his employment on the basis of an appraisal of his attributes and qualifications. However, as Frontex rightly observes, the procedure for renewing the contracts of temporary members of staff, as organised by the guidelines, is specifically intended to allow the AECE to examine, upon request by the staff members concerned, whether it is appropriate to renew their contracts due to expire soon, according to rules guaranteeing equal treatment, in an area where the AECE has a wide discretion. In those circumstances it cannot be considered that the procedure that led to the contested decision had been initiated against the applicant, who may not, therefore, rely in that regard on rights of defence.
            27. Although it is thus not established, in the present case, that the contested decision was taken following a procedure carried out against the applicant, the fact remains that that decision adversely affects the situation of the latter, in so far as it deprives him of the possibility of continuing his employment with Frontex. The rights of the defence, as now enshrined in Article 41 of the Charter, which, according to the Courts of the European Union, is of general application ( L  v Parliament , T‑317/10 P, EU:T:2013:413, paragraph 81), include, while being more extensive, the procedural right provided for in paragraph 2(a) of that article, of every person to be heard, before any individual measure which would affect him or her adversely is taken (see, to that effect, France  v People’s Mojahedin Organisation of Iran , C‑27/09 P, EU:C:2011:853, paragraph 65; M. , C‑277/11, EU:C:2012:744, paragraphs 81 to 83; and Commission  v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraphs 98 and 99). Consequently, it was for Frontex, under Article 41(2)(a) of the Charter, to allow the applicant to submit his observations to useful effect before adopting the contested decision. Frontex does not dispute the fact that it did not allow the applicant to be heard before the adoption of that decision.
            28. However, for an infringement of the right to be heard to result in the annulment of the contested decision, it is also necessary, according to settled case-law, to examine whether, in the absence of that irregularity, the procedure might have led to a different result ( G. and R ., C‑383/13 PPU, EU:C:2013:533, paragraph 38 and the case-law cited, and CH  v Parliament , F‑129/12, EU:F:2013:203, paragraph 38).
            29. In the present case, it is apparent from the new contract renewal form that the recommendation of the reporting officer not to renew the applicant’s contract is based on the level of his professional performance for 2009, as assessed in the appraisal report that was finalised on 23 June 2010. Those appraisals were included, in essence, and even word for word to a large extent, in the contested decision, the reporting officer having emphasised ‘the insufficient level of performance (skills [and] behaviour) in the areas considered as basic, key and priorities for the Jobholder’s position’, highlighting specifically the two objectives not achieved and listed in Section B (entitled ‘Performance of objectives over the review period’) of the abovementioned appraisal report. Likewise, relationship difficulties with some units and persistence in taking inappropriate decisions, highlighted in Section D ‘Abilities (competencies and skills) over the review period’ of that report, were reiterated word for word in the contested decision under the comments of the reporting officer. It is not disputed that the applicant was heard in the context of the appraisal exercise covering the year 2009.
            30. However, the dialogue that took place between the applicant and the reporting officer in the context of that exercise cannot, by itself, establish that, even in the absence of the procedural irregularity referred to in paragraph 27 above, that is to say, even if the applicant had been heard before the adoption of the contested decision and had thus been able to defend himself against the risk of losing his employment, the contract renewal procedure could not have led to a different result, as the two procedures in question, one concerning the drawing up of an appraisal report, the other the renewal or otherwise of a contract, although having related objectives, were nevertheless different and could be based on different appraisal criteria. In particular, the level of performance and skills of the staff member under consideration is only one factor that may be considered by the AECE called upon to decide on the renewal of a contract.
            31. That is particularly true with regard to the comments of the countersigning officer, namely the Deputy Executive Director, who was also consulted in the context of the new contract renewal procedure carried out after the Tribunal’s annulment judgment. Those comments concerned the professional performance of the applicant during the year 2010, which had already been assessed by the countersigning officer, on that occasion in his capacity as the applicant’s reporting officer, in the context of the 2011 appraisal exercise. In its judgment in Wahlström  v Frontex  (EU:F:2013:143, paragraph 38) deliberating on the appeal against the appraisal report drawn up in the context of the 2011 appraisal exercise, the Tribunal specifically found that there had been no dialogue between the reporting officer and the applicant in the context of that exercise. 
            32. In the light of the above, it cannot be excluded that the conclusion of the AECE that the applicant’s contract should not be renewed could have been different if the applicant had been given a proper opportunity to make his point of view known regarding the level of his professional performance in both 2009 in 2010, taken together with the prospect of continuing his working relationship with Frontex, and that, accordingly, compliance with the right to a hearing could therefore have had an influence on the content of the contested decision.
            33. To hold, in such circumstances, that Frontex would have adopted the same decision, even after hearing the applicant, would render meaningless the fundamental right to be heard enshrined in Article 41(2)(a) of the Charter, since the very content of that right implies that the person concerned has the possibility of influencing the decision-making process at issue ( Marcuccio  v Commission , T‑236/02, EU:T:2005:417, paragraph 115). 
            34. It follows from the foregoing that the first plea is founded and that, consequently, the contested decision must be annulled without its being necessary to examine the other pleas in law.
            The claim that the Tribunal should exercise its unlimited jurisdiction 
            35. The applicant, taking the view that his action, in so far as it seeks the annulment of a decision not to renew the contract of a temporary member of staff, has financial consequences, requests the Tribunal to exercise its unlimited jurisdiction, conferred upon it by Article 91(1) of the Staff Regulations, to order Frontex to pay the amount that it considers necessary, on a fair and equitable basis, to ensure the effectiveness of its decision.
            36. Frontex considers that it is not appropriate for the Tribunal to exercise its unlimited jurisdiction and to order it to pay damages.
            37. In that regard, it must be recalled that the annulment of a measure by the Courts of the European Union has the effect of retroactively eliminating that measure from the legal system, and that where the measure annulled has already been carried out, the abolition of its effects means that the applicant must be restored to the legal position he was in before it was adopted ( Landgren  v ETF , F‑1/05, EU:F:2006:112, paragraph 92, and Kalmár  v Europol , F‑83/09, EU:F:2011:66, paragraph 88). Furthermore, in accordance with Article 266 TFEU, the institution whose act has been annulled must ‘take the necessary measures to comply with the judgment of the Court of Justice of the European Union’.
            38. It is also important to point out that the contested decision was annulled because the applicant was not given a proper hearing by the AECE before it was adopted.
            39. Against that background, it is, in any event, still possible that the AECE could consider that it is able once again to adopt a decision not to renew the applicant’s temporary staff contract after a review of the file, taking into account the grounds of this judgment. 
            40. Furthermore, although the present claims must be understood as seeking compensation for the non-material harm that the applicant allegedly suffered as a result of the illegal acts attributed to the AECE in the context of his claim for annulment, it must, however, be noted that the application does not contain the slightest proof as to whether the non-material damage pleaded was incapable of being wholly compensated for by the annulment of the contested decision giving rise to it.
            41. Consequently, there is no need for the Tribunal, in the exercise of the unlimited jurisdiction conferred on it under Article 91(1) of the Staff Regulations, to ensure the effectiveness of the present annulment judgment.
            Costs 
            42. Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any. 
            43. It is apparent from the reasons set out in the present judgment that Frontex has been unsuccessful. Furthermore, in his pleadings the applicant expressly requested that Frontex be ordered to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, Frontex must bear its own costs and be ordered to pay the costs incurred by the applicant. 
            
            Operative part
            On those grounds,
            THE CIVIL SERVICE TRIBUNAL 
            (Third Chamber)
            hereby:
            1. Annuls the decision of the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, of 19 February 2013, not to renew Mr Wahlström’s contract as a member of the temporary staff; 
            2. Dismisses the action as to the remainder; 
            3. Declares that the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union is to bear its own costs and orders it to pay Mr Wahlström’s costs.