JUDGMENT OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

(Second Chamber)

19 July 2016

Luisa Opreana

v

European Commission

‛Civil service — Temporary staff — Temporary staff occupying a permanent post — Non-renewal of a fixed-term contract — Pregnancy — Act adversely affecting a member of staff — Lack of competence of the author of an act adversely affecting a member of staff — Right to be heard — Duty to have regard for the welfare of staff’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Luisa Opreana seeks annulment of the decision of the European Commission not to renew her temporary staff contract, which came to an end on 31 August 2014.

Held:

The decision of the European Commission not to renew Ms Luisa Opreana’s temporary staff contract, which came to an end on 31 August 2014, is annulled. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Ms Opreana.

Summary

1. Actions brought by officials — Act adversely affecting a member of staff — Definition — Letter addressed to a temporary staff member reminding her of the expiry date of her contract — Not included — Decision not to renew a contract — Included

   (Staff Regulations, Art. 90(2))

2. Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed-term contract — Decision adopted without first giving the interested party the opportunity to comment — Infringement of the right to be heard — Consequences

   (Charter of Fundamental Rights of the European Union, Art. 41(2)(a))

3. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the welfare of staff — Taking into consideration the interests of the staff member concerned — Judicial review — Limits

   (Conditions of Employment, Art. 2)

1.  Only measures the legal effects of which are binding on and capable of directly and immediately affecting the interests of the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment. However, a measure which contains no new factor as compared with a previous measure constitutes a purely confirmatory measure and cannot therefore have the effect of setting a fresh time-limit for the purposes of bringing an action.

   In particular, a letter which merely reminds a member of staff about the provisions of his contract relating to the date of its expiry and containing no new factor by reference to those provisions is not an act adversely affecting that staff member.

   However, where the contract is renewable, the decision taken by the administration not to renew it constitutes an act adversely affecting the person concerned, distinct from the contract in question and capable of forming the subject-matter of a complaint, or even an action, within the periods prescribed in the Staff Regulations. Such a decision, which is adopted following a reconsideration of the interests of the service and of the situation of the staff member concerned, contains a new factor by reference to the initial contract and cannot be regarded as merely confirming that contract.

   (see paras 23-25)

   See:

   Judgments of 14 April 1970 in Nebe v Commission, 24/69, EU:C:1970:22, para. 8; of 10 December 1980 in Grasselli v Commission, 23/80, EU:C:1980:284, para. 18; and of 14 September 2006 in Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, para. 46

   Judgments of 19 October 1995 in Obst v Commission, T‑562/93, EU:T:1995:181, para. 23, and of 15 October 2008 in Potamianos v Commission, T‑160/04, EU:T:2008:438, para. 21

   Judgments of 15 September 2011 in Bennett and Others v OHIM, F‑102/09, EU:F:2011:138, paras 57 and 59 and the case law cited; of 23 October 2013 in Solberg v EMCDDA, F‑124/12, EU:F:2013:157, paras 17 and 18; and of 5 February 2014 in Drakeford v EMA, F‑29/13, EU:F:2014:10, para. 23

2.  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. Although the procedure for renewing temporary staff contracts is not a procedure carried out against that staff member, the fact remains that the decision not to renew his contract adversely affects the situation of the latter, in so far as it deprives him of the possibility of continuing his employment with his institution. The rights of the defence, as now enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, which is of general application, 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. Consequently, it is for the institution to allow the staff member concerned to submit his observations to useful effect before adopting the decision not to renew his contract.

   However, for an infringement of the right to be heard to result in the annulment of the decision not to renew the contract, it is also necessary to examine whether, in the absence of that irregularity, the staff member concerned would have had an opportunity to influence the decision-making process at issue.

   (see paras 66, 74)

   See:

   Judgment of 1 July 2010 in Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, para. 23 and the case law cited

   Judgments of 17 September 2014 in Wahlström v Frontex, F‑117/13, EU:F:2014:215, paras 25 to 27 and the case law cited, and of 5 February 2016 in GV v EEAS, F‑137/14, EU:F:2016:14, para. 79 and the case law cited

3.  The possibility of renewing the contract of a member of the temporary staff is merely an option left to the discretion of the competent authority, since the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service. Moreover, when the competent authority takes a decision concerning the situation of a staff member, it must take into consideration all the factors which may affect its decision, that is to say, not just the interests of the service, but also, in particular, those of the staff member concerned. That is a consequence of the administration’s duty to have regard for the welfare of its staff, which reflects the balance of the reciprocal rights and obligations established by the Staff Regulations and, by analogy, the Conditions of Employment of Other Servants, in the relationship between the official authority and its staff. In view of the broad discretion conferred on the institutions in that context, review by the courts is limited to ascertaining that there has been no manifest error or misuse of powers.

   (see para. 89)

   See:

   Judgment of 29 June 1994 in Klinke v Court of Justice, C‑298/93 P, EU:C:1994:273, para. 38

   Judgments of 18 April 1996 in Kyrpitsis v ESC, T‑13/95, EU:T:1996:50, para. 52, and of 8 September 2009, ETF v Landgren, T‑404/06 P, EU:T:2009:313, para. 162 and the case law cited

   Judgments of 21 May 2014 in Commission v Macchia, T‑368/12 P, EU:T:2014:266, para. 49; of 10 October 2014 in EMA v BU, T‑444/13 P, EU:T:2014:865, para. 28; and of 24 November 2015 in Commission v D’Agostino, T‑670/13 P, EU:T:2015:877, para. 32 and the case law cited