1

By its appeal, brought under Article 9 of Annex I to the Statute of the Court of Justice, the applicant, the European Training Foundation (ETF) is seeking to have set aside the judgment of the European Union Civil Service Tribunal (Full Court) of 26 October 2006 in Case F-1/05 Landgren v ETF [2006] ECR-SC I-A-1-123 and II-A-1-459 (the ‘judgment under appeal’) in which the Tribunal annulled the decision of the ETF terminating Ms Pia Landgren’s contract for an indefinite period as a member of temporary staff and, as an interim measure, called upon the parties to seek an agreement on an equitable amount of monetary compensation for the applicant’s unlawful dismissal or, failing agreement, to put their submissions on the amount of such compensation before the Tribunal.

2

Under the first paragraph of Article 11 of the Conditions of Employment of other servants of the European Communities (‘the Conditions of Employment’), the provisions of Articles 11 to 26 of the Staff Regulations of officials of the European Communities (‘the Staff Regulations’), concerning the rights and obligations of officials, are to apply by analogy.

3

According to the second paragraph of Article 25 of the Staff Regulations:

‘Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.’

4

Article 47 of the Conditions of Employment provides as follows:

‘Apart from cessation on death, the employment of temporary staff shall cease:

…

…’

5

The facts and the procedure at first instance are set out in paragraphs 6 to 32 the judgment under appeal, which provide the following information.

6

Ms Landgren, born on 21 June 1947, was recruited by the ETF on 3 January 1995 as a member of the temporary staff in category C, initially for a fixed period and later, from 18 July 2000, for an indefinite period.

7

The probationary report drawn up on Ms Landgren on 10 May 1995 included the following assessments:

8

In her first performance evaluation report, which was drawn up on 13 May 1997 and covered 1995-1997, Ms Landgren obtained an overall mark of 3, which corresponds to ‘fair’ on a scale of 1 to 6, going from ‘excellent’ to ‘absolutely negative’. In particular, she was rated ‘good’ under the headings ‘Expertise’ and ‘Conduct in the service’ and ‘unsatisfactory’ under the heading ‘Efficiency’. Lack of attention and of speed in performing work were referred to in that regard. Although it was emphasised that the overall assessment was positive, she was asked to be more accurate and to improve her ‘political sense’.

9

The second performance evaluation report, drawn up on 17 June 1998 and covering 1997-1998, gave her a mark of 2, which corresponds to ‘good’. The reporting officer noted in his general comments that Ms Landgren’s performance had improved a lot, although pointing out, under the heading ‘Efficiency’, that there was still room for improvement.

10

The third performance evaluation report, drawn up on 17 January 2000 and covering 1999-2000, confirmed the overall mark of 2, all the headings also being assessed as ‘good’. Ms Landgren was, however, asked to improve her ‘time management’. On the other hand, her knowledge of the regulations and the functioning of the ETF was emphasised.

11

In the fourth performance evaluation report, drawn up on 29 March 2001 and covering 2000-2001, Ms Landgren received an overall mark of 3. While emphasising Ms Landgren’s communication skills, her tact, her politeness, her wide knowledge of the ETF, her flexibility and her loyalty towards the hierarchy, the report drew attention to weaknesses in regard to computer skills and, under the heading, ‘Analysis and reasoning’, she was asked not to draw too hasty conclusions, in particular when she was not fully aware of all the issues, although it was accepted that she came up with good proposals. Finally, it was suggested that she should undergo training in taking notes in meetings.

12

From January 2002 to January 2003 inclusive, Ms Landgren was employed in the Directorate of the ETF, where she performed the duties of a secretary and an administrative assistant, with particular responsibility for the missions and leave of the members of the Directorate.

13

On 9 July 2002, the Deputy Director of the ETF, Mr H., drew up an interim performance evaluation report which concluded that Ms Landgren did not sufficiently meet the requirements of her position. That conclusion was based on weaknesses identified in regard to the preparation of missions and agenda handling, attributed to a lack of organisation and follow-up, a limited capacity to use computer systems and unfamiliarity with the ETF’s organisational structure and tasks. The report none the less emphasised Ms Landgren’s positive attitude and her efforts to carry out her many duties.

14

At the end of 2002, the two Deputy Directors, Mr H. and Mr P., acting as reporting officers, prepared a draft appraisal of Ms Landgren’s performance in 2002, in accordance with a new system of performance appraisal which had come into effect in January of that year.

15

Mr H. confirmed his evaluation of 9 July 2002, finding unreliability and serious deficiencies in almost all aspects of the applicant’s performance of her duties, but he drew attention to her efforts in that regard. He stated that he had lost confidence in the quality of her services and concluded that she could no longer continue to occupy her post.

16

Mr P. considered that Ms Landgren’s performance of her specific tasks was generally fair, or even good in regard to certain tasks, but his overall appraisal drew attention to delays in execution and mistakes due to lack of attention, partly attributable, in his opinion, to job overload.

17

In her comments on this appraisal, Ms Landgren contested some of Mr H.’s specific criticisms or justified her conduct in regard to them, but she admitted that the job was too difficult for her. She also drew the Directorate’s attention to the fact that her difficulties might be explained by temporary memory failure due to her state of health, and to the extremely negative consequences which the loss of her job would have for her, having regard to her financial resources, her family situation and her age. She thus asked the Directorate to consider the possibility of assigning her to less demanding duties, either in the Directorate or in other departments.

18

That performance appraisal report was never finalised nor, therefore, was it ever placed on Ms Landgren’s personal file.

19

On 1 February 2003, the applicant was assigned, on a half-time basis and for an indefinite period, to the Eastern Europe and Central Asia Department of the ETF as secretary to the Head of Department, Ms S., the Deputy Head of Department, Ms T., and the ETF coordinator. As accepted by the Director, the half-time working request was for the period from 1 February 2003 to 31 December 2004 and was justified as preparation for retirement as a member of staff who had reached 55 years of age.

20

Ms Landgren’s performance appraisal report for 2003, drawn up on 18 March 2004, contained the following passage:

‘Pia has achieved her key objectives set for 2003. An assessment of the related key indicators shows that she has been able to perform her tasks effectively and efficiently with respect of deadlines.

Pia has shown capacity to concentrate on her work even while having to deal with several issues at the same time. She has made a substantial effort to improve her memory.

Pia has improved her IT skills.

Pia maintains good, friendly but respectful relations with her peers and fellow colleagues.’

21

The latter report was drafted by Ms T. in her capacity as acting Head of Department in the absence of Ms S., on sick leave from November 2003 to March 2004 inclusive, and was countersigned by Mr R. in his capacity as Director. Although Ms S. did not sign it, she was none the less mentioned in the report as reporting officer, alongside Ms T. It is not disputed that the Head of Department did not agree with Ms T.’s assessment and had a rather negative opinion of Ms Landgren’s performance.

22

Subsequently, Ms Landgren felt it necessary to raise, in the course of an interview with Ms S., the possibility of continuing to work half-time. During the abovementioned interview, which took place on 10 May 2004, the Head of Department informed Ms Landgren that she might discuss her application with the Director, Mr R.

23

On 17 May 2004, Ms Landgren had an interview with Mr R., who offered her a choice between ‘early retirement’ and dismissal. Mr R. also made it clear that if she was dismissed, the applicant would be eligible for an unemployment allowance under Article 28a of the Conditions of Employment until she reached the minimum age for retirement, namely 60 years of age.

24

On 15 June 2004, Ms Landgren had a further interview with Mr R., this time in the presence of a mediator appointed by the ETF. At that interview, Mr R. informed the applicant that she was ‘a nice person but an inefficient secretary’ and, for the latter reason, he was asking her to resign.

25

At a third meeting, on 25 June 2004, at which other ETF managers were present, Mr R. gave the applicant a letter terminating her contract as a member of the temporary staff with effect from 1 January 2005 (‘the decision to dismiss’).

26

That decision reads as follows:

‘Dear Pia,

In accordance with Article 47 of the Conditions of Employment of Other Servants and in accordance with the terms and conditions of your contract and its amending clauses, I am very sorry to inform you that your employment as temporary agent within the ETF will be terminated. The amending clause of your contract foresees a period of notice of six months, therefore your last working day will be 31 December 2004.

Thank you very much for your contribution to the ETF and let me wish you a lot of success in your future career.’

27

As a result of that decision, the applicant was assigned to the Administration and Central Services Unit with effect from 1 July 2004. At her request, she was allowed to return to full-time work from that date.

28

Ms Landgren, who underwent surgery in October 2004, was on sick leave for three months and therefore, her period of notice was suspended for that period.

29

On 27 September 2004, Ms Landgren submitted a complaint under Article 90(2) of the Staff Regulations against the decision to dismiss.

30

By decision of 19 January 2005, the authority empowered to conclude contracts of employment (‘the AECCE’) rejected that complaint on the ground that the dismissal was justified by the unsatisfactory and inadequate nature of Ms Landgren’s performance and that the AECCE had not exercised in a manifestly erroneous manner the wide discretionary powers which it has to assess the interest of the service. As part of its duty of care, it even took account of the applicant’s interests in fixing the date on which the dismissal took effect.

31

Under those circumstances, Ms Landgren brought an action on 28 April 2005 for annulment of the decision to dismiss and for compensation for the material and non-material damage caused by that decision.

32

The action at first instance was initially lodged at the Registry of the Court of First Instance and was entered as Case T-180/05. Pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7) the Court of First Instance made an order on 15 December 2005 referring the case to the Civil Service Tribunal. The action was lodged at the Tribunal Registry as Case F-1/05.

33

In the judgment under appeal, the Tribunal, in an interlocutory judgment, annulled the decision to dismiss and called upon the parties to seek an agreement on equitable monetary compensation for Ms Landgren’s unlawful dismissal or, failing agreement, to put their submissions on the amount of compensation before the Tribunal within three months of the delivery of the judgment

34

Since the parties informed the Tribunal that they had not reached agreement on the amount of monetary compensation and since the ETF had indicated that it was willing to pay Ms Landgren compensation in the amount of EUR 39262.10, the Tribunal, by order of 22 May 2007, fixed the amount of the monetary compensation, provisionally and until the case has been definitively settled, at EUR 39000.

35

By order of 22 May 2007, the President of the Tribunal, acting under Article 77(b) and Article 78 of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis to the Tribunal by virtue of Article 3(4) of Decision 2004/752, stayed proceedings in Case F-1/05 until the Court has given a decision terminating the appeal in the present case. The President of the Tribunal noted that the definitive resolution of the case could depend on whether Ms Landgren is suffering from a total and permanent incapacity to work. That question would require a measure of inquiry, such as the designation of medical experts, which, having regard to the cost of such a procedure, would not constitute a sound administration of justice as long as the appeal against the interim judgment has not been decided.

36

In the initial stage of its reasoning, in paragraphs 60 to 79 of the judgment under appeal, the Tribunal considered the argument put forward by the ETF that it has no legal obligation to give reasons for the decision to dismiss.

37

The Tribunal pointed out first of all that, according to settled case-law (Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22; Case T-1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II-143, paragraph 73; Joined Cases T-178/95 and T-179/95 Picciolo and Calò v Committee of the Regions [1997] ECR-SC I-A-51 and II-155, paragraph 33; Case T-351/99 Brumter v Commission [2001] ECR-SC I-A-165 and II-757, paragraph 28; Case T-11/03 Afari v ECB [2004] ECR-SC I-A-65 and II-267, paragraph 37; Case T-281/01 Huygens v Commission [2004] ECR-SC I-A-203 and II-903, paragraph 105; and Case T-171/05 Nijs v Court of Auditors [2006] ECR-SC I-A-2-195 and II-A-2-999, paragraph 36), the obligation to state reasons constitutes an essential principle of Community law which may be derogated from only for compelling reasons and that that principle, set out in Article 253 EC and reiterated in the second paragraph of Article 25 of the Staff Regulations, forms part of the rights and obligations of officials referred to in Article 11 of the Conditions of Employment.

38

However, the Tribunal noted that in Case 25/68 Schertzer v Parliament [1977] ECR 1729, paragraphs 38 to 40, the Court of Justice found that the employment of temporary staff is to cease, where the contract is for an indefinite period, at the end of the period of notice stipulated in the contract, in accordance with Article 47(2) of the Conditions of Employment. The Tribunal pointed out that the Court of Justice had thus concluded that the justification for the unilateral termination of the contract — a measure which is expressly provided for by the latter provision, falls within the wide discretion of the competent authority and is acknowledged by the staff member at the time of his recruitment — is to be found in the contract of employment and therefore reasons do not have to be stated for it. It pointed out that, in the view of the Court of Justice, it is in this respect that the position of temporary staff is fundamentally distinct from that of an official under the Staff Regulations, so as to exclude the application by analogy of Article 25 of the Staff Regulations, notwithstanding the general reference to Articles 11 to 26 of the Staff Regulations contained in Article 11 of the Conditions of Employment. The Tribunal added that that interpretation is confirmed by settled case-law (Case C-18/91 P V v Parliament [1992] ECR I-3997, paragraph 39; Case T-45/90 Speybrouck v Parliament [1992] ECR II-33, paragraph 90; Case T-51/91 Hoyer v Commission [1994] ECR-SC I-A-103 and II-341, paragraph 27; Case T-52/91 Smets v Commission [1994] ECR-SC I-A-107 and II-353, paragraph 24; Case T-70/00 Hoyer v Commission [2002] ECR-SC I-A-247 and II-1231, paragraph 55; Case T-175/03 Schmitt v EAR [2004] ECR-SC I-A-211 and II-939, paragraphs 57 and 58; Case T-471/04 Kazantzoglou v EAR [2006] ECR-SC I-A-2-35 and II-A-2-157, paragraphs 43 and 44; Case T-10/02 Girardot v Commission [2006] ECR-SC I-A-2-129 and II-A-2-609, paragraph 72).

39

Given the development of the law concerning the protection of workers against dismissal and the abusive recourse to successive fixed-term employment contracts or relationships and of the Community case-law itself as to the requirement of a formal statement of the reasons on which an act capable of creating adverse affects is based, the Tribunal considered that the question whether the contract for an indefinite period of a member of the temporary staff may be terminated unilaterally without a statement of reasons needed to be examined.

40

First of all, the Tribunal noted, inter alia, that under the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP and implemented by Council Directive 1999/70/EC of 28 June 1999 (OJ 1999 L 175, p. 43), contracts of an indefinite duration constitute ‘the general form of employment relationship between employers and workers’, characterised by stable employment, and that the Court of Justice has pointed out, in that regard, that the benefit of stable employment constitutes a major element in the protection of workers (Case C-144/04 Mangold [2005] ECR I-9981, paragraph 64; see also Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraph 62), and concluded that permitting the employer to terminate an employment relationship of an indefinite duration without stating the grounds for the decision, subject only to a period of notice, would fail to take account of the very nature of employment contracts of indefinite duration, in that they guarantee some job security, and would dilute the distinction between that category of contract and fixed-term contracts.

41

Secondly, the Tribunal refers to Article 4 of Convention 158 of the International Labour Organisation concerning Termination of Employment at the Initiative of the Employer, adopted on 22 June 1982, according to which ‘[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’, to Article 24(a) of the European Social Charter, adopted on 18 October 1961, as revised, which guarantees ‘the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service’ and to Article 30 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1), according to which ‘[e]very worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices’. The third indent of Article 41(2) of the Charter also provides generally, under the heading of the right to good administration, for ‘the obligation of the administration to give reasons for its decisions’.

42

The Tribunal notes that the principal aim of the Charter is to reaffirm ‘the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice … and of the European Court of Human Rights’ (see, to that effect, Case C-540/03 Parliament v Council [2006] ECR I-5769, paragraph 38).

43

The Tribunal considered, moreover, that by solemnly proclaiming the Charter of Fundamental Rights of the European Union, the Parliament, the Council and the Commission necessarily intended to give it particular significance, account of which must be taken in interpreting the provisions of the Staff Regulations and the Conditions of Employment.

44

The Tribunal observed that there is no overriding reason to exclude members of the temporary staff within the meaning of the Conditions of Employment from protection against unjustified dismissal, particularly when their contract is for an indefinite period or, if it is a fixed-term contract, they are dismissed before the expiry of the term and concluded that in order to ensure a sufficient degree of protection to that effect, the persons concerned must be able to determine whether their legitimate interests have been respected or damaged and to assess whether it would be appropriate to initiate judicial proceedings, and the courts must be able to exercise their powers of review, which amounts to recognising an obligation on the part of the competent authority to state the reasons for its decisions.

45

Finally, the Tribunal pointed out that recognition of an obligation on the part of the competent authority to state the reasons for its decisions does not prevent it enjoying broad discretion in regard to dismissal, and review by the Community Courts is therefore confined to ensuring that there has been no manifest error or misuse of powers (Case T-79/98 Carrasco Benítez v EMEA [1999] ECR-SC I-A-29 and II-127, paragraph 55; Case T-223/99 Dejaiffe v OHIM [2000] ECR-SC I-A-277 and II-1267, paragraph 53; and Case T-7/01 Pyres v Commission [2003] ECR-SC I-A-37 and II-239, paragraphs 50 and 51) and that Article 47 of the Conditions of Employment does not preclude the considerations set out above inasmuch as Article 47(c)(i) merely requires a period of notice and fixes its length, without addressing the question whether the dismissal is justified.

46

In the second stage of its reasoning, the Tribunal, in paragraphs 77 to 81 of the judgment under appeal, sought to determine whether that obligation to state reasons had been fulfilled in the present case. The Tribunal pointed out that although, in respect of a decision to dismiss a member of staff employed under a contract for an indefinite period, it is particularly important that the reasons on which the decision is based should, as a general rule, be set out in writing, preferably in the text of the decision itself, it also considered that the obligation to state the reasons for the dismissal may also be regarded as fulfilled if the person concerned was duly informed, in the course of meetings with his superiors, of those reasons and if the decision of the AECCE was adopted shortly after those meetings and added that the AECCE may also, if necessary, supplement the statement of reasons in its reply to a complaint lodged by the person concerned.

47

In the present case, the Tribunal noted that Ms Landgren was informed in the course of the meetings she had with Mr R on 15 and 25 June 2004 of the reasons for which it was planned to terminate her contract as a member of the temporary staff for incompetence and that further details were usefully provided by the AECCE in its reply to the applicant’s complaint. That permitted Ms Landgren to assess whether or not the decision to dismiss was well founded and gave her an opportunity to bring her action before the Tribunal and that, consequently, the plea based on an infringement of the obligation to state reasons had to be rejected.

48

In a third stage of its reasoning, the Tribunal, in paragraphs 82 to 95 of the judgment under appeal, considered whether or not the reasons justifying the decision to dismiss were well founded.

49

In that connection, the Tribunal noted, first, that the ETF relied solely on Ms Landgren’s ‘overall’ incompetence as justification for the dismissal, that incompetence being attested to by the accumulation of performance evaluation reports unfavourable to the applicant or critical of her performance.

50

The Tribunal then noted that although, throughout her career, the applicant was often criticised for shortcomings such as a lack of attention, of accuracy or of speed in carrying out her duties, it is apparent from the probationary report and the performance evaluation reports that, contrary to what the ETF alleges, the assessment made of the applicant’s abilities was generally satisfactory, or even good (for 1997 to 2000 and for 2003).

51

Moreover, it emphasised that highly negative assessments were made by two persons in particular, namely, Mr H., Deputy Director, whose secretary Ms Landgren was from January 2002 to January 2003, and Ms S., Head of Department, whose secretary Ms Landgren also was from 1 February 2003 to 30 June 2004.

52

On the one hand, however, the Tribunal considered that not only was the draft performance appraisal for 2002 never finalised but the assessment made by the other deputy director, Mr P., for whom Ms Landgren had also worked during the same period, was much less severe, considering Ms Landgren’s performance of her tasks to be fair, or even good, although he found that she had some shortcomings which he attributed, in part, to an excessive workload.

53

On the other hand, the Tribunal considered that the performance appraisal report for 2003, drawn up on 18 March 2004 by Ms T., for whom Ms Landgren had also worked, and signed by Mr R. on 31 March 2004, that is to say, about two months before the interviews in the course of which he informed the applicant of his intention to terminate her contract, was particularly favourable to her. The Tribunal pointed out, in particular, that according to that report, Ms Landgren ‘[had] achieved her key objectives set for 2003 … [had] been able to perform her tasks effectively and efficiently with respect of deadlines … [had] shown capacity to concentrate on her work even while having to deal with several issues at the same time … [had] made a substantial effort to improve her memory … [had] improved her IT skills … [maintained] good, friendly but respectful relations with her peers and fellow colleagues’.

54

The Tribunal also noted that, moreover, there is nothing in the file to indicate that Ms Landgren’s professional performance suddenly deteriorated between the time Ms T. drew up her last performance appraisal report in March 2004, praising her for performing her duties efficiently and in a timely manner, and the adoption of the decision to dismiss her less than three months later.

55

Consequently, the Tribunal considered that the decision to dismiss was vitiated by a manifest error of assessment and had to be annulled.

56

Fourthly and finally, the Tribunal noted that Ms Landgren had declared that her health had considerably deteriorated and that she would not be physically capable of returning to work at the ETF and found that, so as to give useful effect, in the interest of Ms Landgren, to the annulment of the decision to dismiss, it should exercise the unlimited jurisdiction conferred on it in disputes of a financial nature and called upon the ETF to seek an equitable solution which adequately protected Ms Landgren’s rights (see, to that effect, Case C-242/90 P Commission v Albani and Others [1993] ECR I-3839, paragraph 13, and Case T-10/02 Girardot v Commission [2004] ECR-SC I-A-109 and II-483, paragraph 89).

57

It therefore called upon the parties, first of all, to seek an agreement on equitable monetary compensation for Ms Landgren’s unlawful dismissal and then, within three months of the delivery of this judgment, to inform the Tribunal of the amount so agreed or, failing agreement, to put their submissions on the amount of compensation before it.

58

By application lodged at the Registry of the Court of First Instance on 22 December 2006, the ETF brought the present appeal.

59

On 26 March 2007, the Commission applied to intervene in the proceedings. By order of 19 April 2007, the President of the Appeal Chamber allowed that intervention in support of the ETF.

60

Ms Landgren lodged her response on 16 April 2007.

61

By letter of 4 June 2007, the ETF applied for leave, on the ground of force majeure, to lodge a response even though the time-limit for such an application had expired on 10 May 2007. By decision of 12 June 2007, the President of the Appeal Chamber rejected that application.

62

The Commission lodged its statement in intervention on 6 June 2007. The ETF and Ms Landgren lodged their observations on that statement on 19 July and 28 August 2007, respectively.

63

Acting on a report from the Judge-Rapporteur, the Court of First Instance (Appeal Chamber) held that no application for a hearing to be arranged had been submitted by the parties within the period of one month from notification of the closure of the written procedure and decided to give a ruling without an oral procedure, pursuant to Article 146 of the Rules of Procedure.

64

The ETF claims that the Court should:

65

Ms Landgren contends that the Court should:

66

The Commission claims that the Court should

67

Ms Landgren claims that the appeal is inadmissible in its entirety inasmuch as the ETF accepted the judgment under appeal. She refers in that regard to the judgment of the Court of Justice in Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 31, according to which acceptance of a judgment could be an obstacle to the admissibility of an appeal brought against that judgment.

68

Such an acceptance is clear in the present case from the letter sent on 10 November 2006 by the representative of the ETF, which constitutes a unilateral legal act accepting the judgment under appeal and a waiver of the legal remedies available against that judgment.

69

Ms Landgren considers that if the ETF had intended to appeal against the judgment under appeal, it should have refrained from making a proposal to give effect to the judgment before lodging its appeal and applying, on that basis, for a stay of the proceedings pending before the Tribunal.

70

However, the ETF, without reserving the right to lodge a possible appeal, called upon her to make a proposal with a view to reaching an agreement on compensation or, failing that, to make a submission to the Tribunal on the amount of compensation. Such an agreement or such submissions would have brought the dispute to a definitive end and excluded any further proceedings, since the obligation to compensate would no longer flow from the judgment under appeal but from that agreement or those submissions.

71

Thus, the ETF indicated in its letter of 10 November 2006 that it hoped to reach an agreement with her. Ms Landgren points out in that regard that, if the ETF intended to lodge an appeal, it would have mattered little that the parties had reached an agreement which would inevitably be called into question by that appeal.

72

That is confirmed by the statement made by ETF that it was desirable that Ms Landgren submit her proposal to it as rapidly as possible so that the compensation could be charged to the 2006 budget. According to Ms Landgren, it must be concluded from that that the ETF did indeed have the intention of definitively implementing the judgment under appeal since, in the contrary case, the fact that the compensation was charged to the 2006 budget or the 2007 budget would have been of little importance.

73

By first reserving the right, in its letter of 5 December 2006, to lodge an appeal against the judgment under appeal, and then by withdrawing, on 8 December 2006, its proposal for compensation made in the letter of 5 December 2006 and by lodging the present appeal, the ETF infringed the principle of legal certainty, all the more so as the proposal put forward on 10 November 2006 had been accepted.

74

Furthermore, Ms Landgren claims that even if the letter of 10 November 2006 is not to be regarded as acceptance of the judgment under appeal by the ETF, the precise, consistent and unconditional assurances given by the representative of the ETF gave rise to a legitimate expectation on her part that the judgment would be implemented rapidly and definitively. By reserving, in its letter of 5 December 2006, the right to bring an appeal against the judgment under appeal and then, by withdrawing, on 8 December 2006, the compensation proposal made in the letter of 5 December 2006 and bringing the present appeal, the ETF infringed the principle of the protection of legitimate expectations. In addition, such a change of position ‘casts doubt’ on the personal and actual interest of the ETF in resolving the dispute. That is confirmed by the Commission’s application to intervene, from which it can be seen that the interest pursued in reality has to do with the repercussions of the judgment under appeal on the practice, based on case-law, that reasons do not have to be given for the dismissal of temporary staff.

75

The ETF and the Commission consider that that argument is unfounded.

76

Leaving aside the consideration of the question whether the concept of acceptance applies in the case of an action for annulment of a decision adopted by a Community institution, it must be recalled that it is clear from Article 233 EC that the institution whose act has been declared void is required to take the necessary measures to comply with the judgment.

77

In the present case, the Tribunal called upon the ETF to seek an agreement which adequately protected Ms Landgren’s rights. According to point 2 of the operative part of the judgment under appeal, the Tribunal thus required the parties to forward to it, within three months of the delivery of the judgment, either the jointly agreed amount of monetary compensation resulting from the illegality of the decision to dismiss or, failing agreement, their submissions on that amount.

78

Finally, under Article 244 EC, the judgments of the Tribunal are to be enforceable under the conditions laid down in Article 256 EC.

79

It follows that, bearing in mind the operative part of the judgment under appeal, read in the light of the grounds therefor, in particular paragraph 93, the ETF was required to approach Ms Landgren so as to seek an agreement on the monetary compensation which the judgment had awarded her. Indeed, Ms Landgren herself states in her letter of 22 November 2006 that ‘it is for [the ETF] to make [to her] … a compensation proposal on which she will take a position, all the more so as it is obviously for the defendant institution to comply with the annulment judgment’.

80

Since, pursuant to Article 12 of Annex I to the Statute of the Court of Justice, an appeal before the Court of First Instance does not have suspensory effect, the mere fact that the ETF approached Ms Landgren in order to comply with the judgment of the Tribunal did not imply that it did not intend to appeal. In any event, waiver of a right of action, inasmuch as it leads to the loss of a right, can cause an action to be inadmissible only if the waiver is clear and unconditional.

81

That is manifestly not so in the present case. Not only does the letter of 10 November 2006 make no mention of any such waiver but the ETF states expressly in the letter of 5 December 2006, sent in reply to Ms Landgren’s letter of 22 November 2006, that it ‘reserved the right, independently of that proposal, to bring an appeal against the judgment of [the Tribunal] of 26 October 2006’.

82

It makes no difference in that regard that the ETF might have indicated that it hoped to find common ground with Ms Landgren since that would merely show a desire to comply in good faith with the judgment of the Tribunal. Similarly, bearing in mind that the appeal does not have suspensory effect, the desire of the ETF to charge Ms Landgren’s compensation to the 2006 budget does not necessarily mean that the ETF did not intend to bring an appeal, nor, a fortiori, that it had formally waived that right.

83

For the same reasons, Ms Landgren cannot claim that the ETF infringed the principle of the protection of legitimate expectations. It must be recalled that, according to settled case-law, any individual is entitled to rely on that principle in a situation where the Community authorities, by giving him precise assurances, have caused him to entertain legitimate expectations. The assurances given must, moreover, comply with the relevant rules (Case C-213/06 P EAR v Karatzoglou [2007] ECR I-6733, point 33 and the case-law cited). Even supposing that the requirements of the principle of the protection of legitimate expectations, which apply to administrative action, could be relied on against the ETF in its capacity as a party to the dispute, it is sufficient to note that it is clear from what has gone before that the ETF gave no precise assurance to Ms Landgren concerning a possible definitive resolution of the dispute.

84

It follows that this plea of inadmissibility must be rejected.

85

Ms Landgren argues that the ETF’s claims that the Court should hold that the decision to dismiss is lawful and that there is no legal basis for the obligation to pay compensation imposed by the Tribunal are inadmissible. Those claims do not meet the requirements of Article 139 of the Rules of Procedure inasmuch as they do not correspond to the forms of order sought before the Tribunal. Nor can they be interpreted as asking the Court to grant the forms of order sought at first instance. The ETF presented those claims as the consequence simply of setting aside the judgment under appeal and not as matters to be heard by the Court of First Instance..

86

Ms Landgren adds that the Court does have jurisdiction to rule in the present case. She concludes from the foregoing that the appeal must be regarded as merely seeking to have the judgment under appeal set aside and not as a re-examination of Ms Landgren’s situation. Therefore, the personal and specific interest of the ETF in bringing proceedings seems doubtful and the appeal should be dismissed in its entirety.

87

As Ms Landgren argues, the appeal court does not have jurisdiction to make general declarations going beyond the strict limit of the dispute, any more than the first instance court does. The claim put forward by the ETF that the Court should declare the decision to dismiss lawful and that there is no legal basis for the obligation to pay compensation imposed by the Tribunal must therefore be declared inadmissible, something which the ETF does not in fact challenge.

88

Even if the ETF had expressed in those claims its wish that the Court rule definitively on the dispute, the fact remains that, in any event, Article 13 of Annex I to the Statute of the Court of Justice provides that if the appeal is well founded, the Court of First Instance is to quash the decision of the Civil Service Tribunal and itself give judgment in the matter but is to refer the case back to the Civil Service Tribunal for judgment where the state of the proceedings does not permit a decision by the Court. The question whether the ETF asked the Court to itself rule on the dispute is thus irrelevant.

89

The Commission claims that Ms Landgren’s action at first instance should have been declared inadmissible by the Tribunal.

90

It considers that since the contract of employment between Ms Landgren and the ETF provided that the institution or the employee could terminate it under the conditions laid down in Articles 47 to 50 of the Conditions of Employment, the action against the decision to dismiss, adopted by the ETF on the basis of Article 47 of the Staff Regulations and in accordance with the terms of the contract, was out of time.

91

The Commission points out that, in its judgment in Case C-417/05 P Commission v Fernández Gómez [2006] ECR I-8481, the Court of Justice set aside the judgment of the Court of First Instance and dismissed as inadmissible the action brought by the member of temporary staff in question against the Commission’s refusal to renew her contract. The Court pointed out that the contract of employment provided that it could not be renewed. Having recalled to mind that it is only the contract of employment which produces legal effects in respect of persons covered by the Staff Regulations, the Court held that the member of temporary staff had not challenged the contract of employment within the time-limit laid down in the Staff Regulations and her challenge to a decision adopted in accordance with the express provisions of that contract was inadmissible. A similar line of reasoning should be followed in the present case.

92

The Commission accepts that, in accordance with Article 40 of the Statute of the Court of Justice and settled case-law, since the ETF did not raise an objection that the action was inadmissible either before the Tribunal or in the appeal, the Commission, as an intervener, cannot put forward an admissible plea to that effect.

93

However, since that is an absolute bar to proceeding, the Tribunal was required to raise it of its own motion (Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraphs 28 and 29, and Case T-193/02 Piau v Commission [2005] ECR II-209, paragraphs 36 and 37).

94

It is irrelevant in that regard that consideration of the objection of inadmissibility is carried out by the appeal court of its own motion. On the one hand, if the Court could not itself declare the action inadmissible, it would find itself ruling on a dispute which was in reality inadmissible. On the other hand, the admissibility of the action at first instance is a question of law which must therefore be considered by the Court at the appeal stage.

95

In its observations on the Commission’s statement in intervention, the ETF supports the Commission’s argument and considers that the action at first instance was inadmissible as being out of time. It adds that the Commission’s raising of such a plea, which involves a matter of public policy, at the appeal stage is admissible even though the ETF had not pleaded the inadmissibility of the action.

96

Ms Landgren contends that the Commission’s plea of inadmissibility in regard to the action at first instance is itself inadmissible inasmuch as it was not raised by the applicant and inasmuch as it was not raised at first instance.

97

In the alternative, Ms Landgren argues that the plea alleging that the action at first instance is inadmissible is unfounded.

98

The Commission claims that the Tribunal should have raised the inadmissibility of the action at first instance of its own motion. According to the Commission, the decision to dismiss did not produce legal effects independent of the contract of employment, which provided that the employment relationship could be terminated under the conditions laid down in Article 47 of the Conditions of Employment. The decision to dismiss terminated the contract under precisely those conditions. The action at first instance was therefore brought out of time.

99

Without there being any need to rule on the admissibility of this plea, which was not raised by the ETF and which was not discussed at first instance, it must be stated that it must, in any event, be rejected as unfounded (Case C-23/00 P Council v Boehringer [2002] ECR I-1873, paragraph 52).

100

The circumstances in the present case are significantly different from those in Commission v Fernández Gómez, paragraph 91 above.

101

In the latter judgment, the Court of Justice considered that the negative reply of the appointing authority to the request for renewal of the contract of a member of temporary staff who had been engaged for a fixed period did not constitute an act adversely affecting her since the terms of the contract, which were explained in an accompanying letter addressed to the applicant, provided that it could not be renewed. The Court considered that the appointing authority’s reply did not contain, in relation to those terms, any new information regarding the date of expiry of the contract and the issue of that contract’s renewal and could not therefore have the effect of setting a fresh time-limit.

102

In the present case, Ms Landgren was recruited on the basis of a temporary contract for an indefinite period which provided that the contract could be terminated by the institution or the member of staff under the conditions laid down in Articles 47 to 50 of the Conditions of Employment. Thus, in the absence of the decision to dismiss, the contract of employment would not have expired, with the result that Ms Landgren would have remained in an employment relationship with the ETF. It cannot therefore be argued reasonably that the decision to dismiss Ms Landgren did not adversely affect her since it was that decision which altered her legal situation significantly by terminating her contract.

103

By this plea, the ETF alleges that the Tribunal erred in law when it held that the obligation to state reasons applied to a decision, adopted under Article 47(c)(i) of the Conditions of Employment, to dismiss a member of temporary staff recruited under a contract for an indefinite period.

104

Ms Landgren claims that the plea alleging an infringement by the Tribunal of the scope of the obligation to state reasons is irrelevant inasmuch as it is directed against non-essential grounds for the judgment under appeal.

105

The grounds concerning the obligation to state reasons for decisions to dismiss members of temporary staff engaged under contracts for an indefinite period are not essential, on the one hand, because the Tribunal rejected the plea alleging an infringement of the obligation to state reasons put forward at first instance and, on the other, annulled the decision to dismiss by holding that it was vitiated by a manifest error of assessment. The considerations concerning the obligation to state reasons are thus ‘extraneous to the operative part of the judgment under appeal’.

106

The ETF and the Commission challenge that analysis and consider that the consideration of whether the decision to dismiss was well founded was based on the reasoning of the Tribunal in regard to the obligation to state reasons for the decision to dismiss.

107

The ETF and the Commission argue in substance that, in the absence of an obligation to state reasons for the decision to dismiss, the Tribunal neither could nor should have considered the substantive legality of that decision.

108

It must be remembered in that regard that, according to settled case-law, the requirement to state reasons is intended, on the one hand, to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested and, on the other, to enable the Court to review the legality of the decision (Michel v Parliament, paragraph 37 above, paragraph 22 and the case-law cited).

109

The substantive legality of a decision which contains no statement of the reasons on which it is based, either in the wording of the document itself or in the context in which it was adopted cannot be reviewed by the court, regardless of the extent of that review. In the absence of an obligation on the part of the author of the decision to state the reasons which led to its adoption, both the court’s capacity to perform its duty, if such has been given to it, to review the substantive legality of measures brought before it and to ensure judicial protection of individuals would be compromised and would be made subject to the discretion of the author of the decision. The requirement that an institution should state the reasons for its decisions is thus inseparable from the court’s power to review the validity of such decisions and that power must be guaranteed, in a community based on the rule of law, under equivalent conditions, to all persons subject to the law who exercise their right to judicial protection.

110

Consequently, if the Court were to conclude, as the ETF and the Commission argue, that there is absolutely no obligation on the part of the AECCE to give reasons for its decisions terminating the contracts of members of the temporary staff concluded for an indefinite period, in the sense that the AECCE is required to comply only with the conditions concerning notice laid down in Article 47(c)(i) of the Conditions of Employment, given that it is common ground that those conditions have been complied with, that fact may influence the determination of the scope of the court’s power of review in regard to those decisions and therefore, the legality of the review of manifest error of assessment carried out in the present case by the Tribunal which led to the annulment of the decision to dismiss.

111

It follows that the present plea cannot be rejected out of hand as being ineffective. It must therefore be considered whether the plea is well founded.

112

The present plea is divided into three parts alleging, first, an infringement of Article 47 of the Conditions of Employment, as interpreted in the case-law, secondly, an erroneous reference to agreements and conventions inapplicable to relations between the institutions and their staff and, thirdly, a contradiction between the formal requirement to state reasons and the statement that knowledge, by other means, of the reasons for the decision to dismiss is lawful.

113

The ETF points out that, under Article 47(c)(i) of the Conditions of Employment, the employment of temporary staff ceases, where the contract is for an indefinite period, at the end of the period of notice stipulated in the contract; and the length of the period of notice is not to be less than one month for each completed year of service, subject to a minimum of 3 months and a maximum of 10 months.

114

Consequently, the employer’s only obligation when a contract for an indefinite period is terminated is to observe the period of notice provided for under the contract, as long as that notice fulfils the conditions laid down in Article 47(c)(i) of the Conditions of Employment.

115

The ETF refers in that regard to the judgments in Schertzer v Parliament and Speybrouck v Parliament, paragraph 38 above, from which it is clear that there is no need to state reasons for decisions terminating the contracts of members of temporary staff. By contrast with officials, whose security of tenure is guaranteed by the Staff Regulations, members of the temporary staff are subject to specific conditions based on the contract of employment entered into with the institution concerned. Where the contract expressly provides that it may be terminated unilaterally but does not impose the obligation to state the reasons for termination by reference to the relevant provisions of the Conditions of Employment the application by analogy of Article 25 of the Staff Regulations provided for in general terms in Article 11 of the Conditions of Employment is excluded.

116

Ms Landgren’s contract of employment provides only that ‘[t]his contract may be terminated by the institution or by the staff member for any of the reasons specified in Articles 47 to 50 of the [Conditions of Employment], subject to the conditions laid down in those articles’. Since Articles 47 to 50 of the Conditions of Employment make no reference to Article 11 of those conditions and still less to the application by analogy of Article 25 of the Staff Regulations, the ETF was not required, in the present case, to state the reasons for the termination of that contract. The ETF bases its position on the judgments in Case T-51/91 Hoyer v Commission and Smets v Commission, both cited in paragraph 38 above, according to which reasons do not need to be given for the unilateral termination expressly provided for in the contract of employment for an indefinite period of a member of temporary staff, regardless of which party is terminating the contract. It argues that, according to those judgments, that exemption from the obligation to state reasons is justified by the discretion which Article 47(c)(i) of the Conditions of Employment confers on the competent authority in regard to termination of such a contract. On that point, the situation of a member of temporary staff may be distinguished from that of an official subject to the Staff Regulations so as to exclude the application by analogy of Article 25 of the Staff Regulations, which concerns the obligation to state the grounds on which a decision adversely affecting an official is based, notwithstanding the general reference in Article 11 of the Conditions of Employment to Articles 11 to 26 of the Staff Regulations concerning the rights and obligations of officials.

117

Similarly, the Court, in the judgment of 6 June 2006 in Girardot v Commission, cited in paragraph 38 above, paragraph 72, pointed out that a member of temporary staff whose employment is based on a contract which may be terminated unilaterally and without reasons being given in accordance with the applicable law can be distinguished, from that point of view, from an official. According to the same judgment, a member of temporary staff does not enjoy the security of tenure granted to an official since, by definition, he is to perform his duties only for a limited period.

118

The ETF concludes that the Tribunal erred in referring, in paragraph 62 of the judgment under appeal, to Article 11 of the Conditions of Employment since the legal rules to which a member of temporary staff is subject are those of the contract, which constitutes the law between the parties, which, in the provision cited above concerning unilateral termination by the institution or the staff member, refers only to Articles 47 to 50 of the Conditions of Employment.

119

Consequently, it must be considered that Ms Landgren’s contract was terminated in accordance with the period of notice provided for in Article 47(c)(i) of the Conditions of Employment and there was no requirement to provide a specific statement of reasons in that regard.

120

First of all, the Commission considers that, by declaring that the ETF was obliged to state reasons for the decision to dismiss, the Tribunal ruled ultra petita or at very least, ultra vires.

121

It claims that Ms Landgren did not ask at first instance that Article 47 of the Conditions of Employment be interpreted as imposing an obligation on the administration to state the reasons why it wished to terminate the contract of a member of temporary staff but argued that, notwithstanding the absence of an obligation to give reasons, the decision must be based on valid factual and legal grounds.

122

By ruling on the existence of such an obligation, the Tribunal changed the subject-matter of the dispute by replying to an argument raised by the ETF (paragraph 60 of the judgment under appeal) but which the applicant at first instance had not raised. The Tribunal thereby infringed the principle of equality of arms by preventing the ETF from presenting argument properly on that subject.

123

The Commission considers that that argument is admissible inasmuch as the fourth paragraph of Article 40 of the Statute of the Court of Justice and Article 116(3) of the Rules of Procedure do not preclude the intervener from advancing arguments which are new or which differ from those of the party he supports, as his intervention would otherwise be limited to restating the arguments advanced by an applicant. The Commission’s argument supports the ETF’s plea that the judgment under appeal should be set aside on the ground that the Tribunal misinterpreted the extent of the obligation to state reasons. Since that neither changes nor distorts the framework of the dispute as defined in the application, that argument must be regarded as admissible (Case C-245/92 P Chemie Linz v Commission [1999] ECR I-4643, paragraphs 32 and 33).

124

Secondly, the Commission claims that the Tribunal erred in law by holding that the unilateral termination of a contract for an indefinite period is subject to an obligation to state reasons.

125

First of all, the case-law of the Court of Justice and the Court of First Instance remained unchanged after the supposed development mentioned by the Tribunal in paragraph 65 of the judgment under appeal, the Court of First Instance having repeated inter alia in the judgment of 6 June 2006 in Girardot v Commission, paragraph 38 above, that there was no obligation to state reasons.

126

Secondly, the Staff Regulations constitute a lex specialis, according to case-law (Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-957), with the result that their provisions may derogate from the general rule. Moreover, the specific nature of the Conditions of Employment has been confirmed by the Court (Case T-102/95 Aubineau v Commission [1996] ECR-SC I-A-357 and II-1053, paragraphs 45 and 46).

127

Finally, contrary to the finding of the Tribunal in paragraph 76 of the judgment under appeal, the argument that reasons must be given for the dismissal runs counter to Article 47 of the Conditions of Employment, as interpreted by the Court of Justice and the Court of First Instance. The Commission refers in that regard to Speybrouck v Parliament, paragraph 38 above, in which the Court of First Instance held that the obligation to give reasons exists only where the termination is on the disciplinary grounds referred to in Article 49 of the Conditions of Employment.

128

The counterpart of that exemption from the obligation to state reasons is the obligation to give notice and to make a severance payment. In the judgment under appeal, the Tribunal thus imposed a double obligation on the institution, namely an obligation to give reasons for the dismissal and to make a severance payment, which amounts to making it subject to more stringent requirements than those applicable to a termination on disciplinary grounds.

129

Finally, since it does not appear that the reasoning of the Tribunal can be transposed to a case where a member of temporary staff has terminated his contract of employment unilaterally, the judgment under appeal infringes the principle of equality between the parties flowing from the Conditions of Employment and the case-law, which provides that the right to terminate a contract unilaterally belongs to both parties to the contract (Schertzer v Parliament, paragraph 38 above, paragraph 47).

130

Ms Landgren contends that the ETF has repeated, almost word for word, the arguments which it already put forward in its rejoinder at first instance. That argument is inadmissible in the appeal having regard, in particular, to Article 58 of the Statute of the Court of Justice.

131

Ms Landgren contends that the Commission’s argument that the Tribunal ruled ultra petita or, at very least, ultra vires, should be rejected as inadmissible on the ground that it is a plea which the ETF did not put forward either at first instance, when the Tribunal called on it to express its views on the question of the obligation to give reasons, or on appeal. It is thus a new plea which changes or distorts the subject-matter of the dispute, in accordance with the case-law (Case T-114/02 BaByliss v Commission [2003] ECR II-1279). In any event, that argument is manifestly unfounded.

132

Similarly, Ms Landgren considers that the arguments put forward by the ETF and the Commission concerning the lack of an obligation to give reasons for decisions to dismiss members of temporary staff employed for an indefinite period are unfounded.

133

Inasmuch as it is an independent ground of the application for annulment of the judgment under appeal, this claim must be regarded as a plea in law. Furthermore, as Ms Landgren points out, this plea was not raised by the ETF in its appeal and cannot be joined to the plea alleging an infringement of the scope of the obligation to give reasons.

134

The ETF never claimed, when setting out its arguments, that the Tribunal went beyond the forms of order sought by Ms Landgren or the limits of the dispute, as defined by her pleas. The ETF merely challenged, not the fact that the Tribunal ruled on the question of the obligation to state the reasons for decisions terminating the contracts for an indefinite period of members of temporary staff, but the scope which the Tribunal gave to that obligation.

135

This plea is therefore a new plea. In accordance with the solution adopted in BaByliss v Commission, paragraph 131 above, paragraph 417, it must therefore be rejected as inadmissible. According to that judgment, whilst the third paragraph of Article 40 of the Statute of the Court of Justice and Article 116(3) of the Rules of Procedure do not preclude the intervener from advancing arguments which are new or which differ from those of the party he supports, lest his intervention be limited to restating the arguments advanced in the application, it cannot be held that those provisions permit him to alter or distort the context of the dispute defined in the application by raising new pleas in law.

136

In any event, it is also unfounded. It is clear from the first and third pleas put forward in the application at first instance that Ms Landgren’s complaint is that the ETF has not shown that the decision to dismiss is based on a reason which is valid in law, on the one hand, and, on the other, has not given reasons for its decision to dismiss if that decision is based on overall incompetence. In addition, the ETF devoted an entire section of its rejoinder to the lack of an obligation to give reasons for the decision to dismiss and concluded that the statements as to the reasons for that decision, both in the defence and in the rejoinder, were put forward in the alternative.

137

It follows that the question of the obligation to give reasons was raised by the parties at first instance. The Tribunal did not therefore exceed its jurisdiction by replying to the argument put forward by the defendant at first instance alleging that no such obligation exists, all the more so as the plea alleging that the obligation to give reasons has been infringed is a matter of public interest which must be raised by the court of its own motion (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 24).

138

Finally, it can be seen from the procedural file, as Ms Landgren observes, that the preparatory report for the hearing expressly called on the ETF to specify ‘how the lack of an obligation to give reasons for the termination of the contract for an indefinite period of a member of temporary staff, alleged by [the ETF] in [the] rejoinder can be reconciled with judicial review of the decision to terminate such a contract’. The argument that the Tribunal was in breach of the audi alterem partem principle, in addition to its being an inadmissible plea inasmuch as it was not raised by the applicant, is thus manifestly unfounded.

139

Ms Landgren considers that this part of the plea must be rejected as inadmissible on the ground that the ETF is merely repeating an argument put forward at first instance.

140

It must be recalled that it is clear from Article 225 EC, Article 11(1) of Annex I to the Statute of the Court of Justice and Article 138(1)(c) of the Rules of Procedure of the Court of First Instance that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, confines itself to reproducing the pleas in law and arguments previously submitted to the Tribunal. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Tribunal, which the Court of First Instance does not have jurisdiction to undertake (see, by analogy, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraphs 34 and 35).

141

However, provided that the applicant challenges the interpretation or application of Community law by the Tribunal, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an applicant could not thus base his appeal on pleas in law and arguments already relied on before the Tribunal, an appeal would be deprived of part of its purpose (see, by analogy, the order in Case C-488/01 P Martinez v Parliament [2003] ECR I-13355, paragraph 39).

142

There is no doubt, however, that, in the present case, the ETF is complaining that the Tribunal erred in interpreting the Staff Regulations and the Conditions of Employment when it held that the decision to dismiss which was challenged at first instance was subject to an obligation to state reasons. Ms Landgren’s objection of inadmissibility must therefore be rejected.

143

As was stated in paragraphs 98 to 102 above, a decision to dismiss a member of temporary staff alters that person’s legal situation significantly and, for that reason, adversely affects him.

144

Pursuant to the second paragraph of Article 25 of the Staff Regulations, any decision adversely affecting an official is to state the grounds on which it is based.

145

With regard to the rules applicable to members of temporary staff, the first paragraph of Article 11 of the Conditions of Employment provides that ‘[t]he provisions of Articles 11 to 26 of the Staff Regulations, concerning the rights and obligations of officials, shall apply by analogy’. The same provision states, however, that ‘where a member of the temporary staff holds a contract for a fixed period, the duration of leave on personal grounds referred to in the second paragraph of Article 15 of the Staff Regulations shall be limited to the remainder of the term of the contract’.

146

Article 11 of the Conditions of Employment thus lays down the principle that Articles 11 to 26 of the Staff Regulations are applicable by analogy to members of temporary staff. There is only one express exception to that principle, which concerns the duration of leave on personal grounds, contained in the second paragraph of Article 15 of the Staff Regulations in regard to a member of the temporary staff who holds a contract for a fixed period.

147

Thus, nothing in a reading of the relevant provisions allows the conclusion to be drawn that Article 25 of the Staff Regulations is not applicable to the termination of contracts for an indefinite period held by members of the temporary staff.

148

Moreover, according to case-law, the obligation to state reasons laid down in that provision, which merely reiterates the general obligation laid down in Article 253 EC, constitutes an essential principle of Community law which may be derogated from only for compelling reasons (Huygens v Commission, paragraph 37 above, paragraph 105 and the case-law cited), as the Tribunal correctly pointed out in paragraph 61 of the judgment under appeal. As was pointed out in paragraph 108 above, the requirement to state reasons is intended, on the one hand, to provide the person concerned with details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by an error which will allow its legality to be contested and, on the other, to enable the court to review the legality of the decision (Michel v Parliament, paragraph 37 above, paragraph 22). That requirement also helps to guarantee the right to effective judicial protection, a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed in Rome on 4 November 1950 and which has been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union (Case C-432/05 Unibet [2007] ECR I-2271, paragraph 37 and the case-law cited). The importance of the requirement to state the reasons on which decisions adopted in the framework of employment relationships are based has also been highlighted by the Court of Justice, which held that effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general that the court to which the matter is referred may require the competent authority to notify its reasons. With regard, more particularly, to securing the effective protection of a fundamental right conferred by the Treaty on community workers, the latter must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in their applying to the courts (Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 15).

149

Thus, such a broad exception to the general and essential principle that the administration must give reasons for its decisions, in particular, those which create adverse effects, could only be the result of the express and unequivocal will of the Community legislature which is not evident in the general provisions of Article 25 of the Staff Regulations and Article 11 of the Conditions of Employment.

150

However, it must be stated that Article 47 of the Conditions of Employment also does not provide that decisions terminating contracts are not subject to the obligation to state reasons. Since Article 25 of the Staff Regulations constitutes an essential principle in regard to officials’ rights, and, pursuant to Article 11 of the Conditions of Employment, those of members of the temporary staff, it cannot be accepted that the mere fact that Article 47 of the Conditions of Employment does not expressly provide that reasons must be given for decisions adopted under that provision excludes the application of Article 25 of the Staff Regulations, since that provision is intended, in the absence of a derogation, to be of general application. The specific nature of the Conditions of Employment and the nature of the Staff Regulations as a lex specialis, as claimed by the Commission, are thus irrelevant, since neither of those instruments expressly derogates from Article 253 EC in regard to decisions terminating contracts for an indefinite period held by members of the temporary staff.

151

In addition, although it is true, as the ETF and the Commission point out, that the employment relationship between the institution and the member of temporary staff arises from the contract of employment, that contract cannot depart from the imperative legal conditions laid down in the Conditions of Employment, since the latter refer to the Staff Regulations in regard to the requirement to state reasons. Thus, the mere fact that the contract of employment provides for unilateral termination subject to a period of notice cannot be interpreted as permitting the AECCE to derogate from Article 11 of the Conditions of Employment and Article 25 of the Staff Regulations. Moreover, it must be pointed out that the unilateral nature of the termination thus provided for is distinct from the requirement to give the reasons for the decision, inasmuch as it deals with the mere lack of a requirement that the desire to terminate be reciprocal.

152

In addition, it is also true that Article 49 of the Conditions of Employment, concerning termination without notice on disciplinary grounds in serious cases of a member of temporary staff’s failure to comply with his obligations, provides that ‘[a] reasoned decision shall be taken by the authority referred to in the first paragraph of Article 6, after the servant concerned has been given an opportunity of submitting his defence’.

153

However, it cannot be deduced, a contrario, that the fact that Article 49 of the Conditions of Employment expressly repeats the requirements flowing from Article 25 of the Staff Regulations in the case of dismissals on disciplinary grounds, that those requirements are not applicable to dismissals on other grounds. Such reasoning could lead to the conclusion that there was no reason to require a statement of reasons for a decision giving rise to adverse effects unless such a requirement was expressly laid down by the provision which constituted the legal basis of that decision, an interpretation which finds no support either in the purpose of Article 25 of the Staff Regulations or in the case-law. In addition, by virtue of the principle of interpretation in conformity with Community law, since Articles 47 and 49 of the Conditions of Employment are rules of a lower rank to the Treaty, they must be interpreted, as far as possible, in the light of the Treaty and, in particular, in conformity with the requirements of Article 253 EC.

154

Moreover, the Commission’s statement that the AECCE’s obligation to give reasons in the case of a dismissal based on Article 47(c)(i) of the Conditions of Employment cannot be accepted on the ground that it would impose a double obligation on the AECCE, namely, an obligation to give reasons and an obligation to make a severance payment to the staff member, and thereby make it subject to more onerous requirements than those applicable in the case of a dismissal on disciplinary grounds, must be rejected.

155

On the one hand, the payment of a salary to a member of temporary staff during the period of notice does not, as such, constitute a severance payment, inasmuch as the staff member performs his duties during that period, which justifies payment of the financial reward for that work. On the other hand, by reason, in particular, of the fact that the staff member is not accused of having committed a serious failure to comply with his obligations, he is given a sufficient period to organise his future, unlike a staff member dismissed on disciplinary grounds, who is guilty of failings of such a nature that allowing him to remain at his post would be contrary to the interests of the service. Under those circumstances, the requirement to give a period of notice cannot be regarded as the counterpart of the lack of an obligation to state reasons, since the question of notice is linked only to the ground for the dismissal.

156

The Commission’s argument that the judgment under appeal infringes the principle of equal treatment by imposing a requirement to state reasons only on the institution notwithstanding the fact that both parties to the contract have the right to terminate it unilaterally also cannot succeed. The relationship between the institution and the member of temporary staff is not defined solely by the terms of the contract but is also subject to the requirements of the Staff Regulations. Although the Staff Regulations provide that decisions adopted by the administration which give rise to adverse effects must state the grounds on which they are based, it must be observed that they do not lay down such a requirement in regard to officials and staff members when they make decisions likely to harm the administration. Any possible inequality which flows from that situation is therefore the result of the application of the Staff Regulations, the validity of which the Commission does not challenge. Moreover, the Commission’s argument is based on the erroneous premiss that the administration’s obligation to state reasons deprives it of its right of unilateral termination. The obligation to state reasons does not prevent the administration from terminating, on its own initiative, the contract between it and a member of the temporary staff, it merely requires it to provide reasons justifying that decision so as to guarantee the staff member the minimum legal conditions for effective judicial protection.

157

It can be seen from paragraphs 143 to 153 above that there is no provision to the effect that Article 25 of the Staff Regulations, which repeats a fundamental requirement flowing from the Treaty itself, should not be applied to decisions to dismiss based on Article 47(c)(i) of the Conditions of Employment.

158

In addition, that interpretation accords with the objectives which Article 25 of the Staff Regulations seeks to achieve.

159

The objective of that provision, applicable to temporary staff by virtue of Article 11 of the Conditions of Employment, is, on the one hand, to provide the person to whom the decision adversely affecting his legal situation is addressed with sufficient details to enable him to assess whether the decision was well founded and whether it would be expedient to bring legal proceedings to contest its legality and, on the other hand, to enable the Court to review the decision. Since decisions terminating contracts for an indefinite period held by members of the temporary staff are not exempt from judicial review, it is consistent with the pursuit of that objective that, as in the case of all decisions addressed to the member of temporary staff which adversely affect him, even those of lesser importance, the reasons for a decision by which the institution terminates the employment of a member of temporary staff must be stated.

160

If that obligation to state reasons did not exist, the Community Courts would be unable to exercise their powers of judicial review, however limited, properly, whereas the administration would in fact be able to decide the fate of a member of the temporary staff in an arbitrary fashion, notwithstanding the fact that, according to case-law, when the competent authority takes a decision concerning the situation of an official it is required, when assessing the interests of the service, to take into consideration all the factors which may affect its decision and in particular, the interests of the staff member concerned. That flows from the administration’s duty to have regard for 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 (Dejaiffe v OHIM, paragraph 45 above, paragraph 53 and the case-law cited).

161

Although it is true that the Staff Regulations give officials a greater security of tenure since the cases in which they may be definitively dismissed against their will are strictly limited, it must, however, be emphasised that the less stable nature of the employment of a member of temporary staff is not altered by the obligation to state reasons imposed on the AECCE when terminating contracts for an indefinite period held by members of the temporary staff.

162

That nature is the result, in particular, of the broad discretion enjoyed by the AECCE in regard to termination, under Article 47(c)(i) of the Conditions of Employment and subject to the period of notice provided for in the contract, of a contract for an indefinite period held by a member of the temporary staff, and the judicial review exercised by the Community Courts must therefore be limited to whether there has been a manifest error or a misuse of powers (Case 25/80 de Briey v Commission [1981] ECR 637, paragraph 7; Speybrouck v Parliament, paragraph 38 above, paragraphs 97 and 98; Case T-51/91 Hoyer v Commission, paragraph 38 above, paragraph 27; and Smets v Commission, paragraph 38 above, paragraph 24).

163

Far from justifying an exemption in favour of the administration from the obligation to give reasons for its decisions, that broad discretion makes it all the more necessary to respect the essential procedural requirement of giving reasons. According to settled case-law, where a Community institution has a wide discretion, the review of observance of guarantees conferred by the Community legal order in administrative procedures is of fundamental importance. Those guarantees include, in particular for the competent institution, the obligations to examine carefully and impartially all the relevant elements of the individual case and to give an adequate statement of the reasons for its decision (Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14; Case C-525/04 P Spain v Lenzing [2007] ECR I-9947, paragraph 58; and Case C-405/07 P Netherlands v Commission [2008] ECR I-8301, paragraph 56).

164

In addition, it has been held that the consistent practice of relieving the competent institution of the obligation to give reasons for decisions which give rise to adverse effects, contrary to the requirements of sound administration, leads to an imbalance in the division of functions and powers between the administration and the Community Courts, inasmuch as the latter becomes the first and only instance before which the applicant is able to obtain a statement of reasons. That practice calls into question the separation of functions and the institutional balance between the administration and the courts, as laid down in the Treaty and, more particularly, the practical effectiveness of legal remedies, the requirements of a prompt dispensation of justice and economy of procedure, having regard to the fact that a statement in the proper form of the reasons for the measure causing adverse effects and notification of it to the person concerned at the pre-litigation stage permit that person to understand the scope of the decision adopted in regard to him and, in an appropriate case, to convince him that it is well founded, thereby avoiding the dispute going to court (Case T-237/00 Reynolds v Parliament [2005] ECR-SC I-A-385 and II-1731, paragraph 106).

165

Consequently, and contrary to what has been claimed by the ETF and the Commission, neither the objective which Article 47 of the Conditions of Employment seeks to achieve nor the stability of officials’ employment situation nor the broad discretion which the AECCE enjoys can obstruct the essential and general objective pursued by the obligation to give reasons for decisions giving rise to adverse effects, as laid down in Article 25 of the Staff Regulations.

166

Furthermore, that is consistent with the case-law of the Court of Justice concerning the requirement to give reasons for decisions rejecting candidates in the context of the recruitment of temporary staff. Thus, it has been held, on the basis that Article 11 of the Conditions of Employment provided that the second paragraph of Article 25 of the Staff Regulations applies to individual decisions concerning members of temporary staff, that, in the context of the recruitment of a member of temporary staff under Article 2(c) of the Conditions of Employment, the AECCE could not confine itself to stating that the statutory requirements governing the legality of the appointment procedure had been observed (Case C-150/03 P Hectors v Parliament [2004] ECR I-8691, paragraphs 38, 39 and 41).

167

Finally, although it is true, as the ETF and the Commission argue, that it has been held that reasons need not be given for decisions terminating contracts for an indefinite period held by members of temporary staff, the fact remains that both the Court of Justice and the Court of First Instance have held that in a case of dismissal for incompetence which respects the periods of notice provided for in Article 47 of the Conditions of Employment, the court may not review the basis on which that discretion was exercised, except where a patent error or a misuse of power can be proved (see, to that effect, de Briey v Commision, paragraph 162 above, paragraph 7, and Speybrouck v Parliament, paragraph 38 above, paragraphs 97 and 98). Moreover, in the exercise of that limited review, the Court of First Instance has held that, by deciding to dismiss a member of temporary staff on the ground that he had failed to obtain a place on a reserve list, which was itself vitiated by illegality, drawn up following a competition, the Commission had exceeded the limits of its discretion and consequently, the Court annulled the decision to dismiss being challenged (see, to the effect, Case T-51/91 Hoyer v Commission, paragraph 38 above, paragraphs 37 to 40, and Smets v Commission, paragraph 38 above, paragraphs 34 to 37).

168

Since, as has been set out above, in particular, in paragraphs 108 and 109 above, judicial review of the validity of a decision, even where limited, cannot be dissociated from the obligation on the part of the institution which adopted the decision to state the reasons for it, the case-law to which the ETF and the Commission refers must be interpreted as not requiring the institution to provide a formal statement, in the document itself, of the reasons for the decision to dismiss a member of temporary staff under Article 47(c)(i) of the Conditions of Employment, although the decision must be based on valid grounds and the staff member must be able to become aware of those grounds. It must be pointed out that that interpretation is consistent with the judgment in de Briey v Commission, paragraph 162 above, in which the Court of Justice held that the applicant had every opportunity during personal conversations and numerous exchanges of memoranda to put forward arguments in his defence and for the same reason, the applicant cannot complain that the decision itself failed to set out the reasons on which it was based (paragraph 9).

169

In addition, it must be noted that the Court has recently decided, in general terms, that the second paragraph of Article 25 of the Staff Regulations is applicable by analogy to temporary staff pursuant to Article 11 of the Conditions of Employment and that the obligation to give reasons was not limited in regard to a decision concerning employment in, or dismissal from, a post covered by Article 2(c) of the Conditions of Employment (Case T-406/04 Bonnet v Court of Justice [2006] ECR-SC I-A-2-213 and II-A-2-1097, paragraph 68), notwithstanding the fact that mutual confidence is an essential element in all the temporary contracts referred to in that provision (paragraph 47). That proposition applies all the more to a dismissal from a post covered by Article 2(a) of the Conditions of Employment, as in the present case.

170

In the light of all the foregoing considerations, it must be concluded the Tribunal did not err in law when it held that a decision, adopted under Article 47(c)(i) of the Conditions of Employment, dismissing a member of temporary staff who was employed for an indefinite period is subject to the requirements of Article 25 of the Staff Regulations in regard to the grounds on which it is based.

171

The first part of the first plea, alleging an infringement of the scope of the obligation to give reasons, must therefore be rejected as unfounded.

172

Under those circumstances, there is no need to consider the second part of that plea, alleging an erroneous reference to agreements and conventions which do not apply to relations between the institutions and their staff. Since, as has been stated above, the scope of the obligation to state reasons established by the Tribunal is in accordance with the Staff Regulations and the Conditions of Employment, any lack of relevance in the references made by the Tribunal, in paragraphs 66 to 72 of the judgment under appeal, to Directive 1999/70 and the Court of Justice’s case-law thereon, and to various international instruments and the Charter of Fundamental Rights of the European Union, is of no consequence in regard to the validity of the conclusions of the judgment under appeal on that point.

173

In addition, it is clear from the reasoning adopted by the Civil Service Tribunal that it did not consider itself bound in law by those references but mentioned them solely in order to justify the interpretation of the Conditions of Employment and the Staff Regulations set out in paragraphs 61, 73 and 74 of the judgment under appeal.

174

It follows that, even if the second part of the plea is well founded, that fact, in itself, is of no consequence in regard to the operative part of the judgment under appeal and cannot cause it to be set aside. This part must therefore be rejected as ineffective.

175

The ETF considers that the judgment under appeal is contradictory inasmuch as it states that the grounds for dismissal should, as a general rule, be clearly set out in writing, preferably in the text itself of the decision concerned, while pointing out that the obligation to state the grounds for dismissal may also be regarded as fulfilled if the staff member was duly informed, in the course of discussions with his superiors, of those grounds and if the AECCE’s decision was adopted shortly after those discussions took place.

176

According to the ETF, although the requirement to set out the grounds for a decision in the document itself is excessive and contrary to Community case-law, the Community Courts have accepted that the need for an adequate knowledge of the grounds, by other means, is justified in the case of officials. In reality, those ‘grounds’ are always considered in the case of contentious proceedings concerning the termination of a contract for an indefinite period through the examination of the facts which gave rise to the decision to terminate the contract and the staff member is perfectly aware of them. Judicial review takes place under those conditions through a review of manifest error in the assessment of the facts. In fact, it is unthinkable that a decision to dismiss would not be preceded by information which would cause the person concerned to suspect or be aware of some of the grounds for the termination of his contract, of which he could challenge the relevance and the validity. It is thus not necessary to require an express statement of reasons, nor, a fortiori, to require it to be set out in the decision to dismiss itself.

177

If a decision to dismiss was adopted not only without a formal statement of reasons but also without any prior contact with the staff member, the decision would be annulled because no fact could constitute the factual or legal basis of it. According to case-law, there is no obligation to give reasons for the termination of a contract for an indefinite period held by a member of temporary staff but the court, in its review of the legality of the decision to dismiss, can examine all the facts in order to relate them to a possible justification for that decision. There is thus no reason to require a statement of reasons, whether formally included in the measure itself or expressly given to the staff member. The staff member cannot be unaware of such a situation, the consequence of which is to make his situation ‘unstable’ or even cause him to be dismissed. In the latter case, the court’s review is carried out by way of a review of manifest error of assessment or misuse of powers.

178

Ms Landgren considers that that argument is unfounded.

179

In so far as the ETF, in the argument set out above, claims that there is a contradiction in requiring, in principle, that a decision to dismiss state in writing the grounds on which it is based while accepting that those grounds may none the less be communicated to the staff member in the course of discussions and at the stage of the reply to a complaint, it is sufficient to note, on the one hand, that there is no contradiction in laying down a principle while providing for some adjustments to it. On the other hand, the solution adopted by the Tribunal is in accordance with the case-law to the effect that knowledge by the staff member of the context in which the decision was adopted can constitute a statement of the grounds for the decision (Case T-123/95 B v Parliament [1997] ECR-SC I-A-245 and II-697, paragraph 51 and the case-law cited). Similarly, it is settled case-law that, with regard to decisions to promote and appoint, the appointing authority is not bound to give reasons for its decisions to promote officials to unsuccessful candidates who might be harmed by such statements (Case T-218/02 Napoli Buzzanca v Commission [2005] ECR-SC I-A-267 and II-1221, paragraph 58 and the case-law cited). On the other hand, the appointing authority is required to provide reasons for its decision not to accept a candidate at the stage of the decision to reject his complaint, the reasons for that decision being deemed to be identical to those for the decision against which the complaint was made (Case T-586/93 Kotzonis v ESC [1995] ECR II-665, paragraph 105, and Huygens v Commission, paragraph 37 above, paragraph 107).

180

Moreover, the ETF seems to be claiming that the obligation to give reasons for decisions dismissing temporary staff is not indispensable since the reasons are necessarily known to the staff member and since, in the course of the review of manifest error, the Community Courts could sanction a possible lack of reasons for the dismissal.

181

The first of those allegations is pure speculation, totally lacking in legal value, and cannot justify an exemption from the obligation on the AECCE’s part to give reasons. The second misunderstands the purpose of the obligation to give reasons, which is to permit the staff member to assess whether the decision which adversely affects him was well founded and to decide whether it would be appropriate to bring an action before the Court and, secondly, to enable the Court to review the legality of the decision, in particular the absence of a manifest error of assessment. Thus, it cannot be accepted that the absence of a statement of reasons can be sanctioned by a review of manifest error of assessment since such a review, by its very nature, can be carried out only if there is a statement of reasons permitting the court to assess whether the administration has or has not exceeded the limits of its discretion.

182

It follows that the present part of the plea must be rejected and with it, the first plea in law in its entirety.

183

The present plea is divided into two parts alleging, first, a distortion of the facts and, second, a failure to take account of the general interest.

184

The ETF claims that it is apparent from the judgment under appeal, that, of Ms Landgren’s seven reports, six mention deficiencies, which justifies the ETF relying on her overall incompetence.

185

The only positive report was the one drawn up by a substitute, Ms T., in the absence of Ms S., Ms Landgren’s superior, who was initially the reporting officer, and covered only 10 months.

186

There was therefore a ‘difference of assessment which was not merely mathematical but also substantive’ between the many warnings sent to Ms Landgren and the reference made to that report alone which, in addition, elicited a reaction from Ms S. when she became aware of it.

187

Furthermore, the ETF points out that, even if it had to be considered, as the Tribunal did in paragraph 89 of the judgment under appeal, that the same value cannot be accorded to the unilateral declarations, annexed to the rejoinder, which were drafted after the action at first instance was lodged, as that attributed to the reports themselves, that does not mean that account cannot be taken of them. Those declarations merely strengthen the negative assessments contained in the reports drawn up on Ms Landgren, except for that drawn up by Ms T. The ETF points out that such evidence may be relied on and produced subsequently in so far as it confirms the validity of the contested decision (Joined Cases T-124/01 and T-320/01 Del Vaglio v Commission [2003] ECR-SC I-A-157 and II-767, paragraph 77).

188

The ETF thus considers that the Tribunal erred in its assessment of the facts of the case, to such an extent that the imbalance in that assessment has led to a distortion of the facts.

189

Ms Landgren contends, principally, that the present part of the plea is inadmissible inasmuch as it is directed against the assessment of the facts and evidence carried out by the first instance court, which is not with the jurisdiction of the appeal court.

190

In the alternative, Ms Landgren considers that the present part of the plea should be rejected as unfounded.

191

It is clear from settled case-law of the Court of Justice in its capacity as an appeal court, that the first instance court has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is apparent from the documents submitted to it, and to appraise those facts (judgment of 8 September 2008 in Case T-222/07 P Kerstens v Commision not yet published in the ECR-SC, paragraph 60).

192

Thus, the appraisal of the facts by the first instance court does not, except in the case of distortion of the evidence submitted to that court, constitute a question of law which, as such, is subject to review by the Court (Kerstens v Commision, paragraph 191 above, paragraph 61).

193

Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (Kerstens v Commision, paragraph 191 above, paragraph 62).

194

In the present part of the plea, the ETF is not challenging the Tribunal’s analysis of Ms Landgren’s various performance evaluation reports and the criticisms made of her during her employment at the ETF, but considers, essentially, that the Tribunal could not conclude that the decision to dismiss Ms Landgren on the ground of overall incompetence was vitiated by a manifest error of assessment.

195

Under those circumstances, the ETF is in reality asking the Court to reconsider the facts and evidence already assessed by the first instance court as can be seen, in particular, from its claim that ‘an erroneous assessment was made by the [Civil Service Tribunal] of all the facts brought to its attention, … to such an extent that the imbalance in the assessment of the facts distorted those facts’.

196

In addition, in so far as the ETF claims that it is apparent from the judgment under appeal that six of Ms Landgren’s seven performance evaluations were ‘regarded as insufficient’, it is sufficient to point out that that statement is a manifest error of fact since, as Ms Landgren points out, paragraphs 10 to 13, 22 and 85 of the judgment under appeal, which the ETF does not claim are vitiated by distortion, mention two performance evaluation reports (1995-1997 and 2000-2001) attributing an overall mark of 3, which corresponds to ‘fair’, and two performance evaluation reports attributing an overall mark of 2, which corresponds to ‘good’.

197

Finally, with regard to the criticisms of paragraph 89 of the judgment under appeal concerning the statements made by Mr H. and Ms S. which were annexed to the rejoinder, it must be pointed out that it is clear from that paragraph that the Tribunal took account of them in its assessment, but considered that it could not accord to unilateral declarations, which were drafted after the action at first instance had been lodged, the same value as that attributed to the performance evaluation reports themselves, since the reports were drawn up following an inter partes procedure the purpose of which was, precisely, to permit an objective assessment of the abilities of the member of temporary staff concerned.

198

It must be recalled that the assessment by the first instance court of the probative value of a document may not be subjected to review by the Court of First Instance in appeal proceedings, since it is clear from Article 11 of Annex I to the Statute of the Court of Justice that an appeal lies on a point of law only (see, by analogy, Case C-182/99 P Salzgitter v Commission [2003] ECR I-10761, paragraph 43). It is for the Tribunal alone to assess the value which should be attached to the evidence produced to it. Save where the evidence adduced before the Tribunal has been distorted, that appraisal therefore does not constitute a point of law which is subject to appeal (see, by analogy, Joined Cases C-403/04 P and Case C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729, paragraphs 38 to 40).

199

The existence of such a distortion has neither been established nor alleged by the ETF.

200

It follows from the foregoing that the present part of the plea must be rejected as inadmissible.

201

The ETF points out that account is taken of all the factors likely to determine its decision, and in particular, the interest of the staff member concerned, as recognised in the case-law, through a broad discretion, which is subject to judicial review only where there has been a manifest error of assessment.

202

Periodical reports had been drawn up on Ms Landgren for 1995 to 2000 which showed significant professional weaknesses, an interim periodical report was drawn up in July 2002 which showed that, in spite of some effort, Ms Landgren continued to have serious difficulties in organising her work, and a periodical report for 2002 was particularly unfavourable. Furthermore, the ETF transferred Ms Landgren twice in order to find a solution to her professional position, which was considered unsatisfactory. Finally, Ms Landgren was informed during discussions with her superiors of the reasons why her work was considered unsatisfactory, she was authorised to return to working full time from 1 July 2004 in order to deal with financial difficulties and her contract was extended to 31 March 2005 on health grounds.

203

In the light of those factors, the ETF claims that the Tribunal did not take account, in the light of the general interest, of the grounds which it put forward and did not carry out a proper review of manifest error of assessment; which constitutes an error of law.

204

Ms Landgren contends, principally, that the present part of the plea is inadmissible inasmuch as it seeks to have the Court reconsider the pleas and arguments put forward before the first instance court.

205

The facts on which the ETF bases its argument to demonstrate that the Tribunal erred in law are not those on which the Tribunal based its argument but are drawn from the ETF’s pleadings at first instance.

206

Ms Landgren points out that, although, according to case-law, the question whether the first instance court misinterpreted the scope of the obligation to give reasons by finding that a decision did not contain an adequate statement of the reasons on which it was based is a question of law which can be reviewed on appeal by the Court, it is also clear from the case-law that the review carried out in that context must necessarily take account of the facts on which the Tribunal based its conclusion.

207

It follows that, by failing to identify precisely which paragraphs in the judgment under appeal were being criticised, and by merely repeating the arguments already put forward at first instance, the ETF was not submitting to the Court the question whether the Tribunal remained within the limits of judicial review by holding that the ETF had committed a manifest error of assessment, but is seeking to obtain a re-examination of the facts put forward at first instance, which is not within the jurisdiction of the appeal court.

208

In the alternative, Ms Landgren contends that the Tribunal correctly pointed, in paragraphs 84, 85, 87 and 88 of the judgment under appeal, to three manifest errors committed by the ETF and did so on the basis of facts which the ETF does not challenge in the present appeal.

209

It is therefore inaccurate to claim that the Tribunal misinterpreted the limits of its power of judicial review by finding a manifest error in the assessment of the interests of the service, which, in accordance with the duty to have regard to the welfare of staff, includes Ms Landgren’s interest.

210

It is apparent from the ETF’s argument that it complains that the Tribunal found a manifest error of assessment without taking account of the grounds relating to the general interest justifying the termination of Ms Landgren’s contract. As a result, the Tribunal did not make a correct assessment of the manifest error of assessment and that constitutes an error of law.

211

Without it being necessary to determine unequivocally the scope of that ambiguous argument, it must be pointed out that, inasmuch as that complaint seeks to have the Court re-examine the facts which, according to the ETF, show that the decision to dismiss was not vitiated by a manifest error of assessment, it must be rejected as inadmissible, in accordance with the case-law cited in paragraphs 191 to 193 above.

212

However, in so far as the ETF claims that the Tribunal exceeded the limits of judicial review of manifest errors of assessment, it must be pointed out that, in paragraph 82 of the judgment under appeal, the Tribunal expressly defined the scope of its review by stating that ‘with regard to whether or not the reasons justifying the decision to dismiss are well founded, the ETF’s assessment of the interests of the service must be examined, but only to the extent of making sure … that there has been no manifest error’.

213

It then recalled to mind, in paragraph 83 of the judgment under appeal, that 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.

214

That reasoning is in accordance with case-law, in particular with Dejaiffe v OHIM, paragraph 45 above, to which, in fact, the Tribunal refers.

215

Indeed, in paragraph 53 of that judgment, the Court stated, in regard to the termination, for reasons connected with the interests of the service, of a contract for an indefinite period held by a member of temporary staff, that the competent authority enjoys a broad discretion in assessing the interests of the service and that, consequently, review by the Community Courts must be limited to the question whether the authority concerned remained within reasonable limits and did not use its power of assessment in a manifestly erroneous way (Carrasco Benítez v EMEA, paragraph 45 above, paragraph 55). With regard to the assessment of the interests of the service, it is also clear from settled case-law that the competent authority is required, when it takes a decision concerning the situation of a staff member, to take into consideration all the factors which may affect its decision and, in particular, the interests of the staff member concerned. That is the result of the administration’s duty to have regard to the welfare of officials and 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 the civil servants (Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, paragraph 38, and Case T-13/95 Kyrpitsis v ESC [1996] ECR-SC I-A-167 and II-503, paragraph 52).

216

The generality of the terms and the ratio decidendi of that case-law make it impossible to envisage another solution in the present case solely on the ground that the termination in question was of a contract for an indefinite period, something which, in fact, neither the ETF nor the Commission claim.

217

The definition by the Tribunal of the extent of its power to review the decision to dismiss is thus not vitiated by an error of law.

218

With regard to the exercise of that review carried out in the present case, the Tribunal first of all set out the ground for the dismissal given by the ETF, namely, Ms Landgren’s overall incompetence (paragraph 84 of the judgment under appeal). The ETF has not challenged that description of the ground for dismissal in the present appeal.

219

Secondly, the Tribunal carried out an examination of Ms Landgren’s various reports and concluded therefrom that, contrary to what the ETF alleged, the assessment made of Ms Landgren’s abilities was generally satisfactory, or even good (paragraph 85 of the judgment under appeal), a conclusion which is not vitiated by distortion. Having remarked that highly negative assessments had been made by two of Ms Landgren’s superiors, the Tribunal qualified those criticisms by emphasising, on the one hand, that some of them were contained in a draft performance appraisal which was never finalised, which also contained much less severe assessments made by another reporting officer (paragraph 87 of the judgment under appeal), and, on the other hand, that unilateral declarations, drafted by those superiors after the action had been brought, cannot be accorded the same value as that attributed to the reports themselves. As was stated in paragraph 198 above, such assessments, not vitiated by distortion, are solely within the jurisdiction of the first instance court.

220

Pointing out, on the contrary, that Ms Landgren’s last performance evaluation report, covering 2003 and signed by the director of the ETF on 31 March 2004, that is to say, three months before the decision to dismiss was adopted by him, was particularly favourable and praised her for performing her duties efficiently and in a timely manner, on the one hand, and that there was nothing in the file to indicate that Ms Landgren’s professional performance had suddenly deteriorated between the time that report was drawn up and the adoption of the decision to dismiss, on the other, the Tribunal concluded that the decision to dismiss was vitiated by a manifest error of assessment (paragraph 91 of the judgment under appeal).

221

It follows that the Tribunal merely reviewed the ground for the dismissal put forward by the ETF, namely Ms Landgren’s overall incompetence and concluded that it was manifestly erroneous. It cannot therefore be complained that the Tribunal misinterpreted the extent of its powers of review since, in fact, the interests of the staff member were taken into account only implicitly, inasmuch as it was in her interest to keep her employment.

222

The present part of the plea, and consequently, the second plea in law in its entirety, must therefore be rejected.

223

The ETF claims that the criteria laid down by the Tribunal in paragraph 95 of the judgment under appeal are based on hypothetical and uncertain considerations, namely, the age at which, having regard to her state of health, Ms Landgren could normally have claimed a retirement pension. However, since she was employed under a contract for an indefinite period, there is no basis on which to claim that she would have continued to work at the ETF until retiring age. The ETF concluded that the fixing of those criteria is erroneous and cannot be the basis of just and equitable compensation.

224

The Commission considers that the Tribunal committed several errors of law in ruling on the monetary consequences of the annulment of the decision to dismiss.

225

First of all, the Commission claims that the dispute is not of a financial nature, with the result that the Tribunal did not have unlimited jurisdiction. By ruling on the monetary consequences of the annulment of the decision to dismiss, the Tribunal in fact acted ultra vires, by issuing directions to the ETF, contrary to Article 233 EC.

226

Secondly, the Commission considers, for the same reasons, that the Tribunal should have declared inadmissible the claim for compensation put forward by Ms Landgren at first instance and that justifies setting aside the judgment under appeal.

227

Thirdly and finally, the Commission claims, in the alternative, that the criteria laid down by the Tribunal for the purpose of assessing the monetary compensation to be paid to Ms Landgren are uncertain and hypothetical, contrary to the requirements of the case-law of the Court of Justice.

228

The Tribunal requires the ETF to compensate Ms Landgren as if she had continued to work until retirement even though the ETF could have complied with the judgment under appeal, pursuant to Article 233 EC, by adopting a fresh decision to dismiss with an appropriate statement of reasons.

229

Ms Landgren considers that those arguments are unfounded. She also considers that the Commission’s claim that the Court should set aside the decision under appeal on the ground that the claim for compensation at first instance was inadmissible must be rejected as inadmissible pursuant to Article 40 of the Statute of the Court of Justice since such a claim was not made by the ETF in its appeal.

230

The arguments raised by the ETF and the Commission can be analysed, essentially, as supporting two pleas, the first alleging that the Tribunal ruled ultra vires and the second alleging that the criteria for monetary compensation laid down by the Tribunal are hypothetical and uncertain.

231

With regard to the Commission’s complaint that the Tribunal ruled ultra vires and, accordingly, erred in law by not rejecting Ms Landgren’s claim for compensation, it must be pointed out that it is true that, according to settled case-law, it is not for the Tribunal, in the context of an action brought under Article 91 of the Staff Regulations, to issue directions to the Community institutions. If an act is annulled, the institution concerned is required, under Article 233 EC, to take the necessary measures to comply with the judgment (Case T-398/03 Castets v Commission [2005] ECR-SC I-A-109 and II-507, paragraph 19 and the case-law cited).

232

None the less, in disputes of a financial character, the Tribunal has unlimited jurisdiction pursuant to the second sentence of Article 91(1) of the Staff Regulations, applicable to temporary staff by virtue of Article 117 of the Conditions of Employment, which permits it to order the defendant institution to pay specific amounts plus interest when appropriate (Case T-15/93 Vienne v Parliament [1993] ECR II-1327, paragraphs 41 and 42; Case T-130/96 Aquilino v Council [1998] ECR-SC I-A-351 and II-1017, paragraph 39; and Case T-197/98 Rudolph v Commission [2000] ECR-SC-I-A-55 and II-241, paragraph 32).

233

In the present case, the dispute is, at least partly, of a financial character since the decision to dismiss has an indirect effect on Ms Landgren’s financial rights (see, by analogy, Case T-140/97 Hautem v EIB [1999] ECR-SC I-A-171 and II-897, paragraph 77, and Rudolph v Commission, paragraph 232 above, paragraphs 33 and 92).

234

It follows that the Tribunal has unlimited jurisdiction pursuant to the second sentence of Article 91(1) of the Staff Regulations to rule on the financial aspects of the dispute, as it correctly pointed out in paragraph 93 of the judgment under appeal.

235

In addition, it must be pointed out that, on the one hand, the Community Courts do not have jurisdiction to issue directions in the context of a review of legality under Article 91 of the Staff Regulations and cannot therefore order the institution concerned to re-instate the applicant in her post (Rudolph v Commission, paragraph 232 above, paragraph 92) and, on the other, that the Tribunal noted that Ms Landgren had declared that her health had considerably deteriorated and that she would not be physically capable of returning to work at the ETF, something which is not denied in the present proceedings.

236

Under those circumstances, it must be held that the Tribunal did not exceed the limits of its jurisdiction and did not err in law when it called on the ETF to seek an equitable solution which adequately protected Ms Landgren’s rights.

237

Therefore, the present plea must be rejected as unfounded without there being any need to rule on its admissibility.

238

The Commission and the ETF claim that the criteria mentioned by the Tribunal amount, in reality, to compensating for damage which is neither actual nor certain.

239

It must be pointed out in that regard that the Tribunal made an interim order in the judgment under appeal, leaving it to the parties to seek an agreement on equitable monetary compensation to be paid to the applicant. It was only failing agreement that the Tribunal was to rule, in a later judgment and on the basis of the parties’ detailed submissions, on the amount of compensation, taking account, where appropriate, of the relevant criteria for calculation, namely and according to paragraph 95 of the judgment under appeal, in particular, the unemployment allowance received by Ms Landgren after her dismissal and the age at which, having regard to her state of health, she could normally have claimed a retirement pension.

240

Clearly, the ETF and the Commission do not deny the existence of damage resulting from the decision to dismiss or the relevance of taking into account the unemployment allowance received by Ms Landgren after her dismissal. Thus, since, in the judgment under appeal, the Tribunal did not fix the amount of the monetary compensation or lay down the detailed rules for the calculation of that compensation, nor even definitively prescribe all the criteria to be taken into account (paragraph 95 of the judgment under appeal expressly states that the criteria mentioned therein are to be taken into account ‘in particular’), the Court can rule, in the present appeal, only on the validity of the taking into account, in a general fashion, of the age at which, having regard to her state of health, Ms Landgren could normally have claimed a retirement pension.

241

It must be borne in mind that, in accordance with settled case-law, when the Tribunal has found that there is damage, it is for the Tribunal alone to assess, within the confines of the claim, how and to what extent the reparation for the damage should be provided, subject to the qualification that in order for the Court to be able to review the judgments of the Tribunal, those judgments must be sufficiently reasoned and, and as regards the quantification of damage, they must state the criteria taken into account for the determination of the amount decided upon (see, by analogy, Case C-348/06 P Commission v Girardot [2008] ECR I-833, paragraph 45 and the case-law cited).

242

In the present case, Ms Landgren could not return to work at the ETF on health grounds, something on which all parties agree, with the result that it is not possible to restore Ms Landgren’s legal position as it was before the decision to dismiss was adopted. It follows that Ms Landgren suffered actual and certain damage as a result of the decision to dismiss which caused her to suffer monetary loss and, in particular, her salary as a member of the temporary staff of the ETF. If the decision to dismiss had not been adopted she could potentially have continued to earn her salary until retirement age. It follows that the Tribunal did not err when it considered that the age at which, having regard to her state of health, she could normally have claimed a retirement pension constituted a relevant criterion, among others, for the purpose of assessing the compensation to be granted to Ms Landgren.

243

However, the Commission complains that the ETF could have complied with the judgment annulling its decision by adopting a fresh decision to dismiss with an appropriate statement of reasons.

244

There is no reason to believe that the ETF could have complied with the judgment under appeal in that way. The decision to dismiss was annulled at first instance not for lack of a statement of reasons, or even because of an inadequate statement of reasons, but on the ground that the ETF committed a manifest error of assessment when it considered that Ms Landgren had demonstrated overall incompetence, having regard both to all of her performance evaluation reports and to the statements of some of her superiors produced at first instance.

245

Even if another ground might possibly justify a subsequent termination of Ms Landgren’s contract of employment, that would be a separate matter and would not therefore constitute compliance with the judgment under appeal. It is for the ETF, if appropriate, to argue, in the context of an assessment by the Tribunal of the monetary compensation due to Ms Landgren, that certain things suggest that it is probable that, even without the decision to dismiss annulled at first instance, Ms Landgren would not have remained in her position until the age at which she could have claimed a retirement pension. Evidence of that sort would justify applying a multiplying factor to the loss of earnings brought about by the decision to dismiss so as to reflect that uncertainty, in a similar manner to what was done in the judgment of 6 June 2006 in Girardot v Commission, paragraph 38 above. Moreover, the Tribunal did not exclude the possibility of such factors being taken into account since, in its interim judgment, it did not define in a definitive and exhaustive manner the criteria and detailed rules for the calculation of the monetary compensation.

246

It must be concluded from the foregoing that the Tribunal did not err in law by laying down the criterion of the age at which, having regard to her state of health, Ms Landgren could normally have claimed a retirement pension.

247

The present plea in law must therefore be rejected and, as a result, the appeal must be dismissed in its entirety.

248

In accordance with the first paragraph of Article 148 of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs.

249

Under the first subparagraph of Article 87(2) of the same rules, which apply to the procedure on appeal pursuant to Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

250

Since Ms Landgren has applied for an order for costs against the ETF and it has been unsuccessful, it must be ordered to pay the costs incurred by Ms Landgren in the present proceedings.

251

In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, which is also applicable to the procedure on appeal by virtue of Article 144 thereof, the institutions which have intervened in the proceedings are to bear their own costs. The Commission, the intervener in the present instance, must therefore be ordered to bear its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Appeal Chamber)

hereby:

Legal context

The facts and the procedure at first instance

The judgment under appeal

The appeal

I — Procedure

II — Forms of order sought

Law

I — Admissibility of the appeal

A — Arguments of the parties

B — Findings of the Court

II — Admissibility of certain heads of claim

A — Arguments of the parties

B — Findings of the Court

III — Admissibility of the action at first instance

A — Arguments of the parties

B — Findings of the Court

IV — The first plea in law alleging an infringement of the extent of the obligation to state reasons

A — The relevance of the first plea

1. Arguments of the parties

2. Findings of the Court

B — Whether the first plea is well founded

1. The first part of the plea, alleging an infringement of Article 47 of the Conditions of Employment, as interpreted in the case-law

(a) Arguments of the parties

(b) Findings of the Court

The Commission’s claim that the Civil Service Tribunal ruled ultra petita or, at very least, ultra vires

The obligation to give reasons for decisions terminating the contracts of members of temporary staff in the light of the Staff Regulations and of the Conditions of Employment

— Admissibility

— Merits

2. The third part of the plea, alleging a contradiction between the formal requirement to state reasons and the lawfulness of becoming aware by other means of the grounds for the decision to dismiss

(a) Arguments of the parties

(b) Findings of the Court

V — The second plea in law alleging an error of law in the assessment of the facts on which the decision to dismiss is based

A — The first part of the plea, alleging a distortion of the facts

1. Arguments of the parties

2. Findings of the Court

B — The second part of the plea alleging a failure to take account of the general interest

1. Arguments of the parties

2. Findings of the Court

VI — The consequences of the annulment of the decision to dismiss

A — Arguments of the parties

B — Findings of the Court

1. The plea alleging that the Civil Service Tribunal ruled ultra vires

2. The plea based on the hypothetical and uncertain nature of the criteria for monetary compensation laid down by the Civil Service Tribunal

Costs