1

By application lodged at the Registry of the Tribunal on 24 January 2016, Mr John Stanley seeks, inter alia, annulment of the decision of the European Commission of 9 April 2015 rejecting his request for reclassification of his contract staff member’s contract as a temporary staff member’s contract and, if necessary, the annulment of the decision of the authority authorised to conclude employment contracts (‘the AACC’) of 13 October 2015 rejecting his complaint. In addition, the applicant seeks, as an alternative to the reclassification of his contract of employment, the payment of damages amounting to the difference between the income he actually received and the remuneration which he should have received if he had been employed as a member of the temporary staff from 1 December 2010.

2

Article 3a of the Conditions of Employment of Other Servants of the European Union (the ‘CEOS’) provides as follows:

‘For the purposes of these Conditions of Employment, “contract staff” means staff not assigned to a post included in the list of posts appended to the section of the budget relating to the institution concerned and engaged for the performance of full-time or part-time duties:

…

3

Under Article 80(1) of the CEOS: ‘Contract staff shall be subdivided into four function groups corresponding to the duties to be performed. Each function group shall be subdivided into grades and steps.’

4

The table in Article 80(2) of the CEOS describes the duties covered by the various function groups. Thus, function group IV, which covers grades 13 to 18, encompasses the duties described as ‘administrative, advisory, linguistic and equivalent technical tasks, performed under the supervision of officials or temporary staff’.

5

Article 2 of the CEOS reads as follows:

‘For the purposes of these Conditions of Employment, “temporary staff” means:

…’

6

On 1 June 2006 the applicant was engaged by the Commission as a member of the contract staff in the External Relations Directorate-General for a fixed period until 31 May 2009. He was initially posted to Accra (Ghana) and classified in function group IV, grade 14, step 1.

7

By an amendment dated 19 March 2009, the applicant’s contract was extended until 31 May 2010, the Commission reserving the right to reassign the applicant to another place of employment during the course of that contract.

8

By a second amendment of 5 February 2010, the applicant’s employment contract was extended for an indefinite period. The terms of the contract remained unchanged, apart from those relating to termination of employment. The applicant was classified in the same function group IV, at grade 15, with retroactive effect from 1 January 2010.

9

By a third amendment of 5 November 2010, with effect from 1 December 2010 (‘the amendment of 1 December 2010’), the applicant was assigned to the European Union Office in Apia (Samoa), a sub-office of the European Union Delegation for the Pacific in Suva (Fiji), to take up a post as ‘International Aid/Cooperation Officer — Chargé de mission, Opérations’.

10

In the appraisal report for 2011 of 20 April 2012 (‘the appraisal report of 20 April 2012’), the reporting officer stated that ‘[the applicant] has a number of important responsibilities in his role as Head of the Technical Office in Samoa, ... which he fulfils to a very high standard. ... He also, as the EU representative in the country, performs EU representation ... actions ... These responsibilities go above and beyond those usually attributed to a contract agent and deserve to be recognised’.

11

On 29 June 2012, the initial job description was partially revised but the applicant’s classification remained unchanged.

12

On 21 November 2014, the applicant was classified in grade 16 with retroactive effect from 1 January 2014.

13

By email of 10 December 2014, the applicant submitted a request (‘the request of 10 December 2014’) under Article 90(1) of the Staff Regulations of the European Union (‘the Staff Regulations’) asking the AACC to confirm that, since his assignment as a member of the contract staff to Apia, he had in fact performed permanent public service duties appropriate to a contract as a member of the temporary staff concluded for an indefinite period. The applicant therefore asked the AACC to reclassify his contract staff member’s contract as a temporary staff member’s contract and to make good any damage which may have resulted from that erroneous classification.

14

By decision of 9 April 2015, the Commission, in justification of its rejection of the request of 10 December 2014, pointed out, first, that only the Head of Delegation based in Suva was accredited as EU ambassador to the independent State of Samoa and that staff posted in the sub-offices of the delegation acted under the authority of the Head of Delegation and the supervision of the Head of Sector based in Suva. Second, the Commission explained that the tasks set out in the description of the job held by the applicant, under ‘International Aid/Cooperation Officer — Chargé de mission, Opérations’, fully corresponded to the responsibilities of a member of the contract staff in function group IV as defined in the CEOS and the Staff Regulations. Moreover, the Commission took the view that the applicant’s job was not ‘Head of Technical Office’ as it was informally and inappropriately referred to in a number of written documents, as there is no such post in the organisation chart of the EU Delegation to Fiji of which the Apia office is merely a sub-office.

15

By email of 6 July 2015, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the decision of 9 April 2015.

16

By decision of 13 October 2015, the AACC rejected the complaint as inadmissible and, in the alternative, as unfounded.

17

The applicant claims that the Tribunal should:

18

The Commission contends that the Tribunal should:

19

Under Article 81 of the Rules of Procedure, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may, by reasoned order, give a decision on the action without taking further steps in the proceedings.

20

In particular, pursuant to settled case-law, the dismissal of an action by reasoned order made on the basis of Article 81 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing, if, upon reading the case file, the Tribunal, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the manifest inadmissibility of the application or that it is manifestly lacking any foundation in law and further considers that the holding of a hearing would be unlikely to provide new evidence capable of affecting that belief (orders of 10 July 2014 in Mészáros v Commission, F‑22/13, EU:F:2014:189, paragraph 39, and 23 April 2015 in Bensai v Commission, F‑131/14, EU:F:2015:34, paragraph 28).

21

In this case, the Tribunal considers that it has sufficient information from the documents before it and has therefore decided, pursuant to Article 81 of the Rules of Procedure, to give a decision on the action by reasoned order without taking further steps in the proceedings.

22

Before setting out its defence of this action on the merits, the Commission argued that the action was inadmissible for the following two reasons. First, the applicant did not lodge, within the time limit of three months laid down by the Staff Regulations, a complaint against his contract of employment as varied by the amendment of 1 December 2010. Thus, when the applicant submitted the request of 10 December 2014, four years after the conclusion of that amendment, his contract of employment had, in the meantime, become definitive.

23

Secondly and in the alternative, the Commission argues that the action is inadmissible because the request of 10 December 2014 was not submitted within a reasonable period.

24

In that regard, the Commission submits, first, that the five-year period provided for by Article 46 of the Statute of the Court of Justice of the European Union as a limitation period for actions in non-contractual liability against the European Union and its institutions cannot apply in the present case. The Tribunal has, moreover, ruled unequivocally on the difference, as regards respect for time limits laid down by Articles 90 and 91 of the Staff Regulations, between a claim for compensation and a request to reclassify an earlier contract, the latter, in particular, being subject to observance of a reasonable time limit (judgment of 26 June 2013 in BU v EMA, F‑135/11, F‑51/12 and F‑110/12, EU:F:2013:93, paragraph 31, ‘the judgment in BU v EMA’).

25

Moreover, in the judgment in BU v EMA, the Tribunal held that a period of four years and four months before the submission of a request for reclassification of a contract was not a reasonable period. The Commission also observes that, in the present case, the time limit for the applicant to submit any request for reclassification of his contract began to run from the conclusion of the amendment of 1 December 2010. As the applicant did not submit the request for reclassification of his contract until 10 December 2014, that is to say four years after the conclusion of the amendment of 1 December 2010, it was clearly out of time and the action was therefore inadmissible.

26

The Commission went on to point out that the difference in the wording of the applicant’s two job descriptions, the second dating from 29 June 2012, as stated in paragraph 11 of the present order, essentially had no material effect as regards the duties carried out by the applicant. The fact that the second job description did not expressly reproduce the list of tasks set out in Article 80(2) of the CEOS for function group IV cannot mean that the tasks of the applicant correspond to those of a member of the temporary staff. In any event, the description of the job held by the applicant which is at issue clearly indicates that the applicant is still classified in function group IV. It was therefore not necessary for the AACC to specify those tasks as described by that article of the CEOS again expressly.

27

Consequently, given that a period of two years and six months elapsed between 29 June 2012, the date of the amendment of the applicant’s job description, and the date of the submission of the request of 10 December 2014, such a delay in approaching the AACC is manifestly unreasonable.

28

Finally, as regards the comment in the appraisal report of 20 April 2012, mentioned in paragraph 10 of the present order, the Commission takes the view that it represents only the personal opinion of the applicant’s reporting officer and points out that the applicant waited more than two and a half years after being notified of that report before submitting his request of 10 December 2014. Against that background, such a delay, assuming it should be counted from the date of receipt of the report, would, here too, appear to be unreasonable in the circumstances of the case.

29

The applicant, for his part, observes that the reasonableness of a period is to be appraised in the light of all the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties.

30

In that regard, in order to demonstrate the admissibility of his action, the applicant asserts that he became aware of circumstances which could have given rise to the reclassification of his contract ‘in the course of time’ and that ‘he became the de facto representative of the EU in Samoa with all the representational responsibilities related’. He alleges that his reporting officer, moreover, clearly recognised this in his comments in the appraisal report of 20 April 2012, in which he reported that the subject of the report had the role of ‘Head of Technical Office’ in Apia and that his responsibilities went ‘above and beyond those usually attributed to a contract agent’.

31

In addition, the applicant considers that, given the amendment of the job description on 29 June 2012 and in the light of the duties he was required to carry out, the request of 10 December 2014 was submitted within a reasonable period and the action was therefore admissible.

32

It should, first of all, be borne in mind that, according to settled case-law, a member of the auxiliary staff, contract staff or contract staff for auxiliary tasks may bring before the administration, after the time limit for bringing proceedings against his contract has expired, an application requesting that, in the light of the tasks which he has actually carried out since being taken on and which correspond to those of a member of the temporary staff, the period of service completed in performance of such tasks be recognised as a period of service completed as a temporary staff member. Subsequently, the staff member concerned may, if necessary, bring an action before the Courts of the European Union against the rejection of his request in accordance with the conditions laid down in Articles 90 and 91 of the Staff Regulations (see, to that effect, the judgment in BU v EMA, paragraph 22 and the case-law cited).

33

Thus, in the light of that case-law, there is cause, first of all, to reject the Commission’s argument that the action is inadmissible on the ground that the applicant failed to challenge the amendment of 1 December 2010 within the period of three months laid down in Article 90(2) of the Staff Regulations. However, it is still necessary for the request of 10 December 2014, by which the applicant sought to demonstrate that the actual performance of his duties justified a possible reclassification of his contract as a member of the contract staff, to have been submitted to the competent authority within a reasonable period.

34

Second, it must be borne in mind that, even though Article 90(1) of the Staff Regulations does not lay down any time limit for the submission of a claim, there is an obligation to act within a reasonable time in all cases other than those in which the legislature has laid down or expressly excluded a time limit (see, to that effect, judgment of 11 May 2010 in Nanopoulos v Commission, F‑30/08, EU:F:2010:43, paragraphs 116 and 117).

35

In fact, the rationale for setting a reasonable time limit, in the absence of any statutory rule, is the need to respect the principle of legal certainty, which precludes the acts of EU institutions, bodies, offices and agencies which have legal effects from being challenged without any time limits, thereby threatening to undermine the stability of legal positions already acquired. Therefore, the absence of any time limit in Article 90(1) of the Staff Regulations cannot be taken to imply, in itself, that it is possible, on the basis of that article, to address a request to the competent administrative authority without the principle of legal certainty being duly respected (see, to that effect, judgments of 14 December 2011 in Allen and Others v Commission, T‑433/10 P, EU:T:2011:744, paragraphs 26 and 31; 11 May 2010 in Nanopoulos v Commission, F‑30/08, EU:F:2010:43, paragraph 117; and BU v EMA, paragraph 24).

36

In addition, again, according to settled case-law of the Courts of the European Union, the reasonableness of a period of time is to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties (judgment of 28 February 2013 in Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paragraph 28; order of 26 June 2009 in Marcuccio v Commission, T‑114/08 P, EU:T:2009:221, paragraph 25; judgments of 1 February 2007 in Tsarnavas v Commission, F‑125/05, EU:F:2007:18, paragraph 50, and 11 May 2010 in Nanopoulos v Commission, F‑30/08, EU:F:2010:43, paragraph 117).

37

With those criteria in mind, as regards the question whether, in the present case, the request of 10 December 2014 was submitted within a reasonable period, it should first be observed that the request in fact comprised two distinct, but closely linked, claims: by his first claim, the applicant called on the AACC ‘to confirm that the duties [he] perform[ed] as contract staff in [his] capacity as Head of the Technical Office in Samoa [we]re not of a transitory nature but correspond[ed] to permanent public services duties and, by way of consequence, to recognise that the period of service [he had] formally completed in performance of a contract of employment as contract staff was [since 1st December 2010] and is actually completed in performance of a contract of employment as temporary staff concluded for an indefinite period’ (‘the claim for reclassification of the contract’). By the second claim, on the other hand, the applicant asked the AACC ‘to compensate any damage which may have resulted and could still result from the erroneous classification of [his] contract’ (‘the claim for damages’).

38

As regards, first, the claim for reclassification of the contract, it is apparent from the wording of the request of 10 December 2014 that the applicant pointed out to the AACC that, as he had taken part in a number of events since taking up his duties in Apia on 1 December 2010, such as, for example, official receptions or bilateral discussions with representatives of the Government of Samoa, ‘[he was] actually considered by the Diplomatic, Donor Community and Government of Samoa as Head of the European Union Office in Samoa, and act[ed] accordingly’.

39

In that connection, the applicant drew the particular attention of the AACC to the fact that, as stated in paragraph 10 of the present order, in the appraisal report of 20 April 2012, his reporting officer had also asserted that his responsibilities ‘[went] above and beyond those usually attributed to a contract agent and deserve[d] to be recognised’.

40

However, as regards, first, the duties performed by the applicant, regardless of the opinions which third parties may have held as to his role in the Apia office, which is undeniably a sub-office of the EU Delegation to Fiji, the main office of which is in Suva, it is clear from the case file that the contract which he had as a member of the contract staff falls expressly within function group IV and assigns him the duties, in particular, of ‘International Aid/Cooperation Officer — Chargé de mission, Opérations’, under the supervision of the Head of Sector, who, for his part, is based in Suva. However, nowhere in that job description are the duties of ‘Head of the EU Office in Samoa’ mentioned, and nor are such duties mentioned in the organisation chart for the EU Delegation to Fiji, as was already pointed out to the applicant in the decision of 9 April 2015 (see paragraph 14 of the present order).

41

As regards, second, the comment appearing in the appraisal report of 20 April 2012, mentioned in paragraph 10 of the present order, it is clear from the request of 10 December 2014 that that report is the only administrative measure emanating from the applicant’s immediate superior concerning his professional performance and was the basis for the applicant’s request for reclassification of his contract.

42

Regardless of the question of the possible legal scope of a comment by a reporting officer as regards the prerogatives of the AACC in respect of the power to alter, where appropriate, the classification of the duties assigned to a member of the contract staff under a contract held by him, it must be found that the request for reclassification of the contract was submitted to the AACC more than two and a half years after the applicant’s becoming aware, by means of the appraisal report of 20 April 2012, of the opinion of his immediate superior to the effect that his responsibilities went well beyond the duties under his contract.

43

Moreover, nowhere in the request of 10 December 2014 did the applicant indicate the reasons why he waited almost two and a half years after the establishment of the appraisal report of 20 April 2012 to submit his request for reclassification of his contract, although, by his own account, during that period he continued to perform duties which, according to him, were properly those of a Head of EU Office and which, according to his reporting officer, were of a much higher level than those usually assigned to a member of the contract staff.

44

In those circumstances, the period of two and a half years which elapsed between the establishment of the appraisal report of 20 April 2012 and the submission of the claim for reclassification of a contract seems manifestly unreasonable. Indeed, given the factual background to that claim, on the one hand, and the comment appearing in the appraisal report of 20 April 2012, on the other, the applicant was, from the moment he received that report, in a position to refer to the AACC a request for reclassification of his contract immediately.

45

Finally, it should, moreover, be pointed out that the circumstances of the case called for a less dilatory response from the applicant, particularly as the issue of reclassification was, in fact, not insignificant since it concerned the very nature of the employment relationship between the applicant and the Commission with all the consequences, both in terms of administrative status and in terms of pay, stemming from the difference between the conditions applying to contract staff and to temporary staff (see, to that effect, the judgment in BU v EMA, paragraph 32).

46

It follows that, according to the criteria established by the case-law set out in paragraph 36 of the present order, the claim for reclassification of the contract appearing in the request of 10 December 2014 was manifestly not submitted within a period which was reasonable.

47

In his application the applicant, however, argues that, compared with the limitation period of five years laid down by Article 46 of the Statute of the Court of Justice of the European Union, the four years which elapsed between the conclusion of the amendment of 1 December 2010 and the date the request of 10 December 2014 was submitted and, a fortiori, the two and a half years between the date that request was submitted and the date of the establishment of the appraisal report of 20 April 2012 must be considered to be a reasonable period. In any event, according to the applicant, the reasonable period, in the present case ‘can only start when he is aware of the circumstances that provide the factual basis and once this situation is fixed’.

48

It must, however, be found that, as, in the present case, an assessment is required as to the reasonableness of the period within which the claim for reclassification of the contract was submitted and not of the period within which the claim for damages was submitted, the reference to the limitation period of five years laid down by Article 46 of the Statute of the Court of Justice of the European Union for actions in non-contractual liability of the European Union is not, in this case, relevant (judgment in BU v EMA, paragraph 31). In that context the judgment of 1 February 1979 in Deshormes v Commission (17/78, EU:C:1979:24), cited by the applicant in his application, is not relevant either, as that judgment concerns observance of the three-month time limit for the lodging of a complaint under Article 90(2) of the Staff Regulations.

49

Moreover, as regards the time when the applicant became aware of the situation he complains of in the request of 10 December 2014, it is common ground that, as has already been pointed out in paragraph 41 of this order, it was following receipt of the appraisal report of 20 April 2012 that the applicant learned, through the comment appearing in that report and thus by an administrative measure emanating from a superior, that his responsibilities, at least those relating to duties he had performed during the period covered by the report, that is to say, the year 2011, could be considered to ‘go above and beyond those usually attributed to a contract agent’.

50

Thus, having regard to the considerations set out in paragraphs 42 to 46 of the present order, it must be held that the claim for reclassification of the contract was not submitted by the applicant within a reasonable period as it clearly undermined the stability of his legal position as determined, in the meantime, by the contract of employment of the applicant and by the amendment of 1 December 2010.

51

To sum up, where the Staff Regulations do not lay down any specific time limit, respect for the principle of legal certainty requires that the stability of the contractual legal relationship between a member of the contract staff and his employer should not be undermined by a request for reclassification of a contract submitted well after the time limit of three months, which is the time limit imposed by law in the case of a challenge to an act adversely affecting a staff member, since it is possible to establish with a sufficient degree of certainty the exact moment when the staff member concerned actually became aware of the situation which he considers to have an adverse administrative effect on him and which thus justifies the submission of such a request (see, to that effect, judgments of 14 December 2011 in Allen and Others v Commission, T‑433/10 P, EU:T:2011:744, paragraphs 26 and 31; 11 May 2010 in Nanopoulos v Commission, F‑30/08, EU:F:2010:43, paragraph 117; and BU v EMA, paragraph 24).

52

In addition, as the applicant has not demonstrated that there were objective causes preventing him from submitting within a reasonable period his claim for reclassification of his contract, it must be held that the period of two and a half years which elapsed between the time when he became aware of the situation which is the subject of his request of 10 December 2014 and the submission of that request manifestly exceeds the time necessary to prepare and submit such a request to the administration concerned (see, to that effect, and by analogy, order of 25 March 1998 in Koopman v Commission, T‑202/97, EU:T:1998:67; judgment of 13 April 2011 in Sukup v Commission, F‑73/09, EU:F:2011:40, paragraph 83). Finally, nothing in the Commission’s conduct can be considered to have caused a delay such as that found in the present case.

53

As regards, second, the claim for damages, it must be observed at the outset that, as already indicated in paragraph 37 of the present order, that claim is not independent either of the claim for reclassification of the contract or of the decision of 9 April 2015.

54

It is settled case-law that, where a claim for damages is closely related to a claim for annulment which has itself been rejected as inadmissible, the claim for damages is also inadmissible (judgment of 6 February 2007 in Wunenburger v Commission, T‑246/04 and T‑71/05, EU:T:2007:34, paragraph 47; order of 5 June 2008 in Timmer v Court of Auditors, F‑123/06, EU:F:2008:71, paragraph 49).

55

In the present case, it must be held that the premiss on which the applicant bases his claim for damages, that is to say the erroneous classification of his actual duties by the administration concerned, is the same as that on which he bases his claim for reclassification of his contract and, thereby, his action for annulment, which in fact concerns the decision of 9 April 2015, rejecting his request of 10 December 2014 by which, as explained in paragraph 37 of this order, the applicant submitted the claims for damages and for reclassification of his contract.

56

Thus, the fact that the claim for reclassification of the contract was manifestly not submitted within a reasonable period, as stated in paragraph 46 of the present order, makes the contractual legal position at issue definitive and it cannot therefore be called into question by a claim for damages on the same facts, which would undermine the principle of legal certainty.

57

It follows that the manifest inadmissibility of the claim for reclassification of the contract which was not brought within a reasonable period, also entails, in accordance with the case-law set out in paragraph 54 of the present order, the inadmissibility of the claim for damages based on the same facts and closely linked to that claim.

58

It follows from all the foregoing arguments that as the pre-litigation procedure established by Article 90(1) of the Staff Regulations was not complied with because of the manifestly unreasonable length of the period within which the request of 10 December 2014 was submitted to the AACC, the present action, which seeks the annulment of the decision of the Commission of 13 October 2015 rejecting the applicant’s complaint against the decision of 9 April 2015 and the action in the alternative for damages relating to it must be rejected in its entirety as manifestly inadmissible.

59

Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.

60

It is apparent from the reasons set out in the present order that the applicant has been unsuccessful. Furthermore, in its submissions the Commission has expressly claimed that the applicant should be ordered to pay the costs. Since the circumstances of the present case do not warrant application of Article 102(1) of the Rules of Procedure, the applicant must bear his own costs and be ordered to pay the costs incurred by the Commission.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (Third Chamber)

hereby orders:

Luxembourg, 21 July 2016.