JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

12 December 2000

Case T-223/99

Luc Dejaiffe

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHŒM)

‛Members of the temporary staff — Early termination of a fixed-term contract of employment of a member of the temporary staff — Interests of the service — Manifest error of assessment — Misuse of powers — Non-contractual liability of the Community’

Full text in French   II-1267

Application for:

annulment of the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 December 1998 terminating the applicant's contract as a member of the temporary staff, for compensation for the damage suffered and for an order requiring the Office to reestablish the applicant in his career.

Held:

The decision of the President of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 December 1998 terminating the applicant's contract as a member of the temporary staff is annulled. The Office for Harmonisation in the Internal Market (Trade Marks and Designs) is ordered to pay to the applicant a sum corresponding, in respect of the period from 16 February 1999 to 30 November 1999 inclusive, to the difference between the monthly salary which he would have received from the Office and that paid following his reinstatement in the Commission, less the termination compensation paid by the Office to the applicant pursuant to Article 47(1) of the Conditions of employment of other servants of the European Communities. The Office for Harmonisation in the Internal Market (Trade Marks and Designs) is ordered to pay to the applicant the token sum of EUR 1 by way of compensation for the nonmaterial damage suffered by him. The remainder of the application is dismissed. The Office for Harmonisation in the Internal Market (Trade Marks and Designs) is ordered to pay the costs.

Summary

1. Officials — Member of the temporary staff — Dismissal — Termination of a fixed-term contract before its expiry — Discretion of the administration as to the choice between disciplinary or contractual grounds for termination

   (Conditions of Employment of Other Servants, Arts 47(1) (b) and 49 to 50a)

2. Officials — Members of the temporary staff — Interests of the service — Discretion of the administration — Scope — Account to be taken of the interests of the employee concerned

   (Staff Regulations, Art. 7; Conditions of Employment of Other Servants, Art. 10)

3. Officials — Members of the temporary staff — Rights and obligations — Observance of obligations under the Staff Regulations — Obligation to act on a request to reiterate undertakings made at the time of recruitment — None

   (Conditions of Employment of Other Servants )

4. Officials — Members of the temporary staff — Dismissal — Termination of a fixed-term contract before its expiry — Legitimate interest of the employee in the implementation of the contract until its expiry — Obligation of the administration to take account of such interest

   (Conditions of Employment of Other Setyants, Art. 47(1 )(b))

5. Officials — Members of the temporary staff — Termination of a fixed-term contract before its expiry — Termination with a view to ruling out the employee from any internal competition — Misuse of powers

   (Conditions of Employment of Other Servants, Art. 47(1)(b))

1.  The decision to base termination of the contract of a member of the temporary staff on the contractual clause provided for that purpose by Article 47(1 )(b) of the Conditions of Employment of Other Servants rather than on Articles 49 to 50a of those conditions concerning disciplinary measures is within the scope of a wide discretion of the administration, so that review by the Community judicature must be confined to ascertaining that there was no manifest error or misuse of powers. Article 47(1) of the Conditions of Employment of Other Servants cannot be interpreted as meaning that the administration could not in any circumstances make use of the early-termination clause for a fixed-term contract by invoking grounds related to the conduct in the service of the employee concerned.

   (see para. 38)

2.  The institutions have wide discretion in evaluating the interests of the service, so that review by the Community judicature of a decision based on the interests of the service must be confined to the question whether the competent authority remained within reasonable limits and did not use its discretion in a manifestly wrong way. As regards evaluation of the interests of the service, the competent authority should, when taking a decision concerning the situation of an official, take into consideration all the factors which may affect its decision and, in particular, the interests of the official concerned. That is a consequence of the duty of the administration to have regard for the interests of its officials which reflects the balance of rights and obligations established by the Staff Regulations and, by analogy, the Conditions of Employment of Other Servants, in the relationship between the public authority and its civil servants.

   (see para. 53)

   See: C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, para. 38; T-13/95 Kyrpitsis v ESC[1996] ECRSCI-A-167 and II-503, para. 52; T-79/98 Carrasco Benítez v EMEA [1999] ECRSC I-A-29 and SC II-127, para. 55

3.  A member of the temporary staff is, by virtue of having signed his contract, subject to the provisions of the Conditions of Employment of Other Servants. That means that, when he takes up his duties, he formally undertakes to observe the obligations under the Staff Regulations stemming from those provisions subject to disciplinary measures. However, no provision of the Conditions of Employment of Other Servants requires an employee to act on a request formally to reiterate that undertaking made at the time of recruitment.

   Accordingly, refusal by a member of the temporary staff to act on such a request cannot constitute a valid reason for the early termination of his contract. Nor is the institution justified in invoking such refusal as an element which undermines the trust which must exist between itself and the applicant.

   (see paras 74, 76)

4.  So far as concerns the principle of good faith, Article 47(1 )(b) of the Conditions of Employment of Other Servants must be interpreted as meaning that any member of the temporary staff who has agreed to sign a fixed-term contract is entitled to specific protection, such that, where the competent authority sees fit to terminate such a contract prematurely, it must take into account the legitimate interest which the employee concerned may claim to have in that contract being implemented, in the usual way, until its expiry and must, therefore, be circumspect in its use of the power to terminate the contract conferred by the abovementioned provision.

   (see para. 79)

5.  The authority empowered to conclude contracts misuses its powers where it terminates the contract of a member of the temporary staff before it expires for the purpose of ruling out the employee from any internal competition. By taking such a decision, that authority makes use of the discretion it enjoys under Article 47(1 )(b) of the Conditions of Employment of Other Servants in order to attain an objective other than that for which that power was conferred on it.

   (see para. 83)

   See: T-589/93 Ryan-Sheridan v EFIL WC [1996] ECRSC I-A-27 and II-77, para. 117