JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
6 February 2019 (*)
(Civil service — Members of the contract staff — Classification — Article 90(2) of the Staff Regulations — Premature complaint — Failure to follow the pre-litigation procedure — Inadmissibility — Autonomy of remedies — Non-renewal of a contract as a member of the auxiliary contract staff covering maternity leave — Obligation to state reasons — Successive fixed-term contracts — Abuse of rights — Right to be heard — Liability)
In Case T‑580/17,
Kevin Karp, residing in Brussels (Belgium), represented by N. Lambers and R. Ben Ammar, lawyers,
applicant,
v
European Parliament, represented by Í. Ní Riagáin Düro and M. Windisch, acting as Agents,
defendant,
APPLICATION on the basis of Article 270 TFEU and seeking, first, annulment of the European Parliament’s decision classifying the applicant in function group II, at grade 4, step 1, under the contract as a member of the contract staff signed on 12 May 2016 and which expired on 11 November 2016 and, secondly, compensation in respect of the material and non-material harm which the applicant has allegedly suffered on account of his classification and the non-renewal of his contract,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis (Rapporteur), President, S. Papasavvas and O. Spineanu-Matei, Judges,
Registrar: E. Coulon,
gives the following
Judgment
Facts
1 The applicant, Mr Kevin Karp, was employed as an accredited parliamentary assistant (‘APA’) for a Member of the European Parliament, in accordance with Article 5a of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), annexed to the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), under an employment contract concluded on 25 February 2015 (‘the first contract’). The first contract which, according to its original terms, was due to expire on 26 August 2015, was extended until 28 February 2016. For all of that period the applicant was classified in grade 1 of the table laid down in Article 133 of the CEOS.
2 By email of 27 April 2016, the Parliament sent the applicant an offer of employment as a member of the contract staff, classified in function group II, at grade 4, step 1, of the table set out in Article 80 of the CEOS (‘the table’). After some hesitation concerning the classification in grade offered, communicated to the Parliament by email of 28 April 2016 (‘the email of 28 April 2016’), the applicant accepted that offer as it stood by email of 2 May 2016, while stating that he wished to clarify the issue of his classification with the persons responsible for human resources in his political group.
3 The contract corresponding to the offer of employment at issue (‘the second contract’) was signed by the Parliament on 9 May 2016 and by the applicant on 12 May 2016, taking effect on that latter date. According to that contract, the duration of the working relationship was from 12 May 2016 to 11 November 2016, with the proviso that the contract could be renewed.
4 On 9 September 2016, the applicant sent an email to the competent Authority Empowered to Conclude Contracts of Employment (‘AECE’) at the European Parliament, which reads as follows:
‘Dear …,
When convenient, I’m going to need to know about the possibility of extending my current contract, which ends in the second week of November.’
5 On 10 October 2016, the applicant sent the AECE a follow-up email, worded as follows:
‘Did you respond? Please respond. Thank you!’
6 On the same date, the applicant forwarded his emails to another member of the Parliament’s staff, stating that he ‘really need[ed] an answer’.
7 The second contract, which expired on 11 November 2016, was not renewed, without the applicant receiving an answer to the emails referred to in paragraphs 4 to 6 above (‘the applicant’s emails).
8 By application lodged at the Registry of the General Court on 28 November 2016, the applicant brought an action seeking annulment of the decisions concerning the classification allocated to him in the first and second contracts. That action was registered under number T‑833/16. By order of 23 October 2017, Karp v Parliament (T‑833/16, not published, EU:T:2017:766), the General Court dismissed that action as inadmissible. It essentially found, in this connection, that the pre-litigation procedure provided for in Article 90(2) and Article 91(2) of the Staff Regulations, applicable to members of the contract staff by virtue of the reference to Title VII of the Staff Regulations in Article 117 of the CEOS, had not been followed. The only document which was capable of being treated as a complaint was the email of 28 April 2016. This, however, concerned the offer of employment dated 27 April 2016, which could not be regarded as an act adversely affecting the applicant in so far as it was a preparatory act.
9 By document dated 10 February 2017, the applicant lodged a complaint (‘the complaint dated 10 February 2017’) with the Parliament, in which he submits, inter alia, that the AECE was in continuous breach of the CEOS for the duration of his contracts inasmuch as the duties which he performed required him to be classified at a higher grade in the table, and that the non-renewal of the second contract had been decided in breach of his right to be heard and the obligation to state reasons. On that occasion, he requested the AECE, inter alia, to rectify the classifications in grade allocated to him in the first and second contracts, to pay him the difference between the remuneration corresponding to the grades which he was allocated and that corresponding to the higher grade which he should have been allocated, to compensate him for the harm resulting from the loss of an opportunity of being recruited after the expiry of the second contract and to compensate him for other material and non-material harm.
10 The applicant sent his complaint by email and registered letter to the head of unit who had signed the second contract and, by registered letter, to the Parliament’s general address.
11 The Parliament replied to the complaint dated 10 February 2017 by letter of 24 May 2017, rejecting it as inadmissible on the ground that it was out of time. In that regard, the Parliament observed that the three-month time limit for submitting a complaint laid down in Article 90(2) of the Staff Regulations had begun to run, in respect of the classifications in grade, as of the date at which each contract took effect and, in respect of the non-renewal of the second contract, as of the date at which that contract expired. Therefore, in the Parliament’s view, the time limit for submitting a complaint had expired on 25 May 2015 so far as the applicant’s classification in grade in connection with the first contract was concerned, on 16 August 2016 so far as the classification in grade in connection with the second contract was concerned, and on 11 February 2017 so far as the non-renewal of the second contract was concerned. Thus, according to the Parliament, the complaint dated 10 February 2017, which it claims to have received only on 13 February 2017, reached it out of time.
12 By letter of 3 July 2017, sent to the Parliament, the applicant argued that his complaint had been submitted on 10 February 2017 and that, in any event, since 11 February 2017 fell on a Saturday, any time limit expiring on that date should be treated as expiring on the following Monday, namely 13 February 2017.
13 By letter of 12 July 2017, the Parliament confirmed having received the complaint dated 10 February 2017 on 13 February 2017 and argued that it had been lodged out of time. The Parliament nevertheless added, as to the substance, first, that the applicant’s right to be heard had not been breached, since the applicant had stated that he was not available when the signatory of that letter and a member of the Parliament had sought to meet him concerning the expiry of the second contract and, secondly, that the applicant had always known that his contract was linked to the replacement of a person on maternity leave so that it would not be possible to renew it.
Procedure and forms of order sought
14 By application lodged at the Registry of the General Court on 24 August 2017, the applicant lodged the present action.
15 By separate document lodged at the Court Registry on 20 December 2017, the Parliament raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court.
16 On 1 February 2018, the applicant lodged his observations on that plea with the Court Registry.
17 By order of 20 February 2018, the Court (Sixth Chamber) decided to reserve a decision on the plea of inadmissibility for the final judgment.
18 The written part of the procedure was closed on 20 August 2018.
19 Under Article 106(3) of the Rules of Procedure, if no request for a hearing has been submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, the General Court may decide to rule on the action without an oral part of the procedure. In the present case, since the Court considers that it has sufficient information available to it from the material in the file, it has decided, in the absence of such a request, to give a decision on the action without an oral part of the procedure.
20 The applicant claims that the Court should:
– declare the application admissible;
– annul the decision of the AECE classifying him in function group II, at grade 4, step 1, of the table, while entrusting him with advisory tasks consistent with a function group IV grade until the end of the second contract on 11 November 2016;
– order the payment of compensation in respect of the material and non-material harm suffered as a result of the manifest and persistent error of assessment made in classifying him in function group II;
– order the payment of compensation in respect of the harm suffered as a result of the manifest abuse of rights and misuse of powers by the AECE and as a result of the infringement of mandatory general principles;
– order the payment of compensation in respect of the harm resulting from the loss of an opportunity to be recruited following the expiry of the second contract, on 11 November 2016, and the decision of the AECE to ignore his request seeking the renewal of his contract;
– order the Parliament to reimburse him for the costs incurred for the purposes of the present proceedings, in particular the remuneration of his lawyers, in accordance with Article 140 of the Rules of Procedure, amounting to EUR 39 287.66.
21 The Parliament contends that the Court should:
– dismiss the action as inadmissible or, in the alternative, as unfounded;
– order the applicant to pay the costs.
Law
Admissibility
22 The Parliament challenges the admissibility of the action so far as concerns, first, the applicant’s claims for annulment, secondly, his claims for damages in respect of the harm stemming from the alleged error in his classification in grade and, thirdly, the claims for damages seeking compensation in respect of the other harm alleged by the applicant (‘the other claims for damages’).
The claims for annulment
23 The Parliament submits that the applicant’s claims for annulment are inadmissible, on the ground that the complaint dated 10 February 2017 was lodged out of time. According to the Parliament, which relies on the order of 23 October 2017, Karp v Parliament (T‑833/16, not published, EU:T:2017:766), confirmed by the order of 19 June 2018, Karp v Parliament (C‑714/17 P, not published, EU:C:2018:471), the second contract is the act adversely affecting the applicant in as much as, by that contract, his classification was fixed at a grade which he claims was too low having regard to the tasks which he was to carry out. Since that contract took effect on 12 May 2016, the Parliament contends that the time limit for lodging a complaint expired three months after that date. In this connection, the Parliament contests the argument, developed by the applicant in the reply, that the dies a quo with regard to the time limit for lodging a complaint was 11 November 2016, his last day of work under the second contract, on the ground that the fact that he was allocated, until that date, tasks exceeding those appropriate to the classification he had obtained gives rise to an act adversely affecting him. It submits that such an argument conflicts with the abovementioned orders and with the subject matter of the case, as defined by the applicant, which is the decision concerning his classification contained in the second contract. Furthermore, the Parliament observes that the email of 28 April 2016 cannot be characterised as a complaint given that it concerned a preparatory act (see paragraph 8 above).
24 The applicant argues in reply that he did indeed submit a complaint seeking annulment of his classification in grade, by email of 28 April 2016, and claims that the complaint in question was lodged in due time. In addition, he observes that the complaint dated 10 February 2017 concerned, inter alia, the fact that, until the expiry of the second contract, he continued to be entrusted with tasks corresponding to a grade higher than that allocated to him. Since that contract expired on 11 November 2016, that complaint was lodged within the three-month time limit laid down in the Staff Regulations.
25 It must be recalled that, according to the order of 23 October 2017, Karp v Parliament (T‑833/16, not published, EU:T:2017:766, paragraphs 30 to 33), the applicant’s classification in grade was fixed under the second contract and not by the offer of employment which preceded that contract, which was the subject of the email of 28 April 2016.
26 In this connection, according to the case-law, a contract deploys its effects and, consequently, its ability adversely to affect the staff member concerned from the time it is signed, so that it is, as a rule, from the date of signature that the time limit for lodging a complaint in good time should be calculated for the purposes of Article 90(2) of the Staff Regulations (judgment of 11 July 2002, Martínez Páramo and Others v Commission, T‑137/99 and T‑18/00, EU:T:2002:187, paragraph 56, and order of 10 September 2014, Carneiro v Europol, F‑122/13, EU:F:2014:209, paragraph 36).
27 In the present case, the principle which has just been mentioned is fully applicable, given that the applicant knew from the start of the second contract what tasks he would have to perform over the duration of that contract. In the application he stated that, ‘knowing pertinently that the nature of the tasks that would be asked of him within the scope of this second contract, being in the continuity of his first employment contract …, would be high-level work (function group IV), [he] raised his concerns to the appointing authority’. Thus, it is evident that the applicant could have submitted a complaint immediately after he took up his post under the second contract for the purpose of seeking classification at a higher grade.
28 It follows that the present plea of inadmissibility raised by the Parliament is well founded.
The claim for damages in respect of the harm stemming from the alleged error as to the applicant’s classification in grade
29 The Parliament contends that the applicant’s claim for damages in respect of the harm stemming from the alleged error concerning his classification in grade is inadmissible on account of the existence of a close connection between that claim for damages and the claims for annulment analysed in paragraphs 23 to 28 above. In this connection, the Parliament relies on the case-law according to which, where such a connection exists, the inadmissibility of the application for annulment entails as a result the inadmissibility of the claim for damages (judgment of 14 February 1989, Bossi v Commission, 346/87, EU:C:1989:59, paragraph 31), in order to prevent an applicant who has failed to contest, within the prescribed period, an act which has adversely affected him, from circumventing the consequences of his being out of time by bringing an action for damages based on the purported unlawfulness of that act (judgments of 15 December 1966, Schreckenberg v Commission, 59/65, EU:C:1966:60, p. 550, and of 7 October 1987, Schina v Commission, 401/85, EU:C:1987:425, paragraph 10).
30 The applicant replies that the case-law relied on by the Parliament is not relevant, since he requested the annulment of the decision fixing his classification in due time.
31 According to settled case-law, where a claim for damages is closely connected with a claim for annulment, which has itself been declared inadmissible, the former claim is also inadmissible (see, to that effect, judgment of 16 July 1981, Albini v Council and Commission, 33/80, EU:C:1981:186, paragraph 18, and order of 14 February 2005, Ravailhe v Committee of the Regions, T‑406/03, EU:T:2005:40, paragraph 62). In the present case, it must be stated that the harm claimed by the applicant is the direct result of his classification under the second contract and his claim for annulment concerning that classification must be dismissed as inadmissible, inasmuch as he did not submit a complaint in due time, as established in paragraphs 25 to 28 above.
32 Consequently, the present plea of inadmissibility raised by the Parliament is also well founded.
The other claims for damages
33 The Parliament submits that the other claims for damages are closely connected to the implied decision not to renew the second contract after 11 November 2017. However, since the applicant did not request the annulment of that decision, any action brought by him seeking compensation in respect of harm closely connected to it must be held inadmissible. That inadmissibility results a fortiori from the application of the principles developed in the case-law set out in paragraph 29 above. The Parliament further states that, although a claim for annulment and a claim for damages are two autonomous legal remedies, the latter may not, however, be used to circumvent the inadmissibility of a claim which concerns the same instance of illegality and which has the same financial end in view.
34 The applicant argues in reply that the action for annulment and the action for damages are two autonomous legal remedies and he decided to rely on the latter remedy exclusively, which he did within due time.
35 In this connection, it is consistent case-law that, since Articles 90 and 91 of the Staff Regulations make no distinction between the action for annulment and the action for damages as regards administrative and contentious procedure, the person concerned is at liberty, in view of the autonomy of the different types of action, to choose either one or the other, or both together, on condition that he brings his action within the period of three months after the rejection of his complaint (see judgment of 18 September 2018, Barroso Truta and Others v Court of Justice of the European Union, T‑702/16 P, EU:T:2018:557, paragraph 66 and the case-law cited).
36 Furthermore, admittedly, there is an exception to the principle of the autonomy of remedies where the action for damages is closely connected to the action for annulment. Although a party may take action by means of a claim for compensation without being obliged by any provision of law to seek the annulment of the illegal act which causes him harm, he may not by those means circumvent the inadmissibility of an application which concerns the same instance of illegality and which has the same financial end in view (see, to that effect, judgment of 12 May 2016, Holistic Innovation Institute v Commission, T‑468/14, EU:T:2016:296, paragraph 46 and the case-law cited). Thus, an action for damages must be declared inadmissible where it is actually aimed at securing withdrawal of an individual decision which has become definitive and would, if upheld, have the effect of nullifying the legal effects of that decision. That is the case if the person concerned seeks, by way of a claim for damages, to obtain a result which is identical to that he would have obtained from the success of an action for annulment which he failed to bring in good time (see, to that effect, judgment of 12 May 2016, Holistic Innovation Institute v Commission, T‑468/14, EU:T:2016:296, paragraph 47 and the case-law cited).
37 However, if the person concerned initiates the pre-litigation procedure seeking compensation in respect of the harm allegedly suffered on account of an act adversely affecting him within the three-month period as of notification of that act or of the date on which he learned of its existence, he cannot be accused of seeking to circumvent the time limit for submitting a complaint which he should have observed in order to obtain the annulment of that act (see, to that effect, judgment of 21 February 2008, Skoulidi v Commission, F‑4/07, EU:F:2008:22, paragraph 70; orders of 6 March 2008, Tiralongo v Commission, F‑55/07, EU:F:2008:27, paragraph 32, and of 28 September 2011, Hecq v Commission, F‑12/11, EU:F:2011:165, paragraph 51).
38 Moreover, the situation to which paragraph 36 above refers constitutes an exception to the principle of the autonomy of remedies and must therefore be interpreted strictly (see, to that effect and by analogy, judgments of 28 October 2010, Volvo Car Germany, C‑203/09, EU:C:2010:647, paragraph 42, and of 18 November 2015, Mecafer v Commission, T‑74/12, EU:T:2015:864, paragraph 88). By contrast, the consideration set out in paragraph 37 above is, essentially, an exception to the exception and thus a return to the principle of the autonomy of legal remedies, so it is not to be interpreted strictly (see, to that effect and by analogy, judgments of 15 January 2002, Libéros v Commission, C‑171/00 P, EU:C:2002:17, paragraph 27, and of 28 October 2010, Axa UK, C‑175/09, EU:C:2010:646, paragraph 30).
39 It follows that the other claims for damages cannot be treated as inadmissible on the sole ground that the applicant did not request the annulment of the decision not to renew the second contract.
40 The admissibility of the other claims for damages depends on whether the complaint dated 10 February 2017, received by the Parliament on 13 February 2017, was out of time.
41 In that regard, first, it must be observed that the dies a quo for the purpose of calculating the time limit for submitting a complaint applicable to the applicant is 11 November 2016, namely the date at which the second contract expired and was not renewed by the AECE.
42 Secondly, the Parliament was incorrect in asserting, in its letters of 24 May and 12 July 2017, that the time limit for submitting a complaint expired on 11 February 2017, that is three months after the dies a quo. In that assertion, the Parliament failed to take into account the fact that 11 February 2017 was a Saturday. In such a situation, it is necessary to refer to Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (OJ 1971 L 124, p. 1), which provides in Article 3(4) thereof that ‘where the last day of a period expressed otherwise than in hours is a public holiday, Sunday or Saturday, the period shall end with the expiry of the last hour of the following working day’ (see, to that effect, judgment of 30 May 2002, Onidi v Commission, T‑197/00, EU:T:2002:135, paragraphs 47 and 48, and order of 10 September 2007, Speiser v Parliament, F‑146/06, EU:F:2007:153, paragraph 25). The time limit for submitting a complaint applicable to the applicant in the present case therefore expired on 13 February 2017, so that the complaint cannot be classified as out of time and it is unnecessary to rule on whether the Parliament had already received it on 10 February 2017 as the applicant claims.
43 Consequently, the present plea of inadmissibility raised by the Parliament must be rejected.
44 In the light of the foregoing, it must be found that the present action is inadmissible so far as both the claim for annulment of the decision on the classification of the applicant in grade and the claim for damages in relation to the alleged harm stemming from that classification are concerned.
45 Therefore, solely the other claims for damages need be examined as to substance.
Substance
46 In the admissible part of his action, the applicant is seeking compensation in respect of the material and non-material harm allegedly caused to him by the Parliament on account of the non-renewal of the second contract. In particular, with regard to material harm, the applicant claims the loss of an opportunity of being recruited until the expiry of the mandate of the Member of the European Parliament for whom he had worked as an APA (see paragraph 1 above) under the first contract. That harm is alleged to amount to EUR 31 584.60, plus interest. As regards non-material harm, the applicant simply claims a total amount of EUR 120 000, plus interest, but does not specify what part of that amount is associated with the non-renewal of the second contract.
47 According to settled case-law regarding civil service matters, the European Union can be held liable for damages only if a number of conditions have been satisfied as regards the illegality of the allegedly wrongful conduct imputed to the institution, the actual harm suffered and the existence of a causal link between that conduct and the harm alleged to have been suffered (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 173 and the case-law cited). Those conditions must be cumulatively satisfied, so that failure to satisfy one of them is a sufficient ground upon which to dismiss the claim for damages (see, to that effect, judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraphs 174 and 175).
48 So far as the purported illegality of the Parliament’s conduct is concerned, the applicant essentially puts forward three complaints, alleging, first, infringement of the obligation to state reasons, secondly, abuse of rights resulting from the use of successive fixed-term contracts and, thirdly, infringement of the right to be heard.
Infringement of the obligation to state reasons
49 The applicant claims that the Parliament infringed the obligation to state reasons, laid down in the second paragraph of Article 25 of the Staff Regulations, by failing to explain the reasons for the non-renewal of the second contract.
50 The Parliament contests the applicant’s arguments.
51 In the first place, it must be observed that according to the case-law the administration is not required to state reasons for its decision not to renew a contract when it expires. As a rule, each of the contracting parties must expect, from the start of the contractual relationship, that the other party will make use of his right to rely on the terms of the contract as they were laid down, and in particular the date fixed for the expiry of the contract. Accordingly, unless the administration has developed a system under which contracts of employment are renewed conditionally, it appears that it should not be necessary, in the absence of any right to the renewal of a fixed-term contract, for the administration to state reasons for its adherence to the terms of the contract as regards the date initially fixed for its expiry. On the other hand, the decision by which the administration rejects a staff member’s request for renewal of his contract must state the grounds on which it is based, in accordance with the second paragraph of Article 25 of the Staff Regulations, applicable to members of the contract staff by virtue of the references in Articles 11 and 81 of the CEOS, and Article 90(1) of the Staff Regulations, since it constitutes an act adversely affecting that person (judgment of 27 November 2012, Sipos v OHIM, F‑59/11, EU:F:2012:164, paragraph 71; see also, to that effect, judgments of 1 March 2005, Smit v Europol, T‑143/03, EU:T:2005:71, paragraphs 26 and 27, and of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 27).
52 In the present case, the applicant’s emails (see paragraphs 4 to 6 above) cannot be regarded as a request for the renewal of the second contract, given that he merely indicated that he wished to receive information as to whether that contract would be extended. Consequently, pursuant to the case-law recalled in paragraph 51 above, the administration was not required to state reasons for its decision not to renew that contract.
53 In the second place, even if the applicant’s emails could be regarded as a request for renewal of the second contract, the obligation to state reasons laid down by the second paragraph of Article 25 of the Staff Regulations is merely a reiteration of the general obligation laid down in Article 296 TFEU, the objective of which is, first, the provide the person concerned with sufficient details to determine whether the act was well founded or whether it is vitiated by an error which will allow its legality to be contested before the European Union judicature and, secondly, to enable that judicature to review the legality of the act. The statement of reasons must therefore in principle be notified to the person concerned at the same time as the decision adversely affecting him, for failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the European Union judicature (see judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 17 and the case-law cited).
54 However, those principles must be implemented in the light of the evolving nature of the pre-litigation procedure, under which the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure, the drawing up of the act laying down the institution’s definitive position coming to an end on the adoption of the response from the AECE to the complaint made by the staff member concerned (see judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 18 and the case-law cited).
55 In that context, it has been held that the supplementary reasoning stated, at the time of the decision to reject the complaint, was in accordance with the purpose of Article 90(2) of the Staff Regulations, under the terms of which the decision on the complaint is itself to be reasoned. That provision necessarily implies, in effect, that the authority required to rule on the complaint is not bound solely by the reasons stated for the decision that is the subject of the complaint, which may be inadequate or non-existent in the case of an implied rejection decision (see judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 19 and the case-law cited).
56 Moreover, the statement of reasons for the decision rejecting a complaint is deemed to supplement the statement of reasons for the decision against which the complaint was directed (see judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 20 and the case-law cited).
57 In the present case, it is admittedly true that the applicant, despite the fact that he sent the emails concerned, had not been given the reasons by the AECE for the non-renewal of his second contract by the time that contract expired on 11 November 2016, which amounts to an implied decision rejecting any request for renewal contained in those emails.
58 Likewise, in the decision of 24 May 2017 replying to the complaint dated 10 February 2017, the AECE merely stated that that complaint was out of time and therefore inadmissible, without providing any explanation as to the reasons for the non-renewal.
59 However, in its letter of 12 July 2017, the AECE supplemented its reply, responding to the request to this effect contained in the applicant’s letter dated 3 July 2017. On that occasion, while confirming the position it had adopted on the rejection of the complaint dated 10 February 2017 on the grounds that it was out of time, the AECE stated that the applicant had always been aware that the second contract had been offered to him in order to replace a person on maternity leave and that, accordingly, it could not be renewed.
60 It must be noted that that statement of reasons was communicated to the applicant before he brought the present action, and thus meets the objective referred to in paragraph 51 above.
61 Accordingly, the applicant’s complaint alleging infringement of the obligation to state reasons must be rejected.
Abuse of rights arising from the use of successive fixed-term contracts
62 The applicant submits that, after recruiting him as an APA under the first contract and extending that contract, the Parliament employed him again as a member of the auxiliary contract staff by concluding the second contract with him, while entrusting him with the same type of permanent tasks. He thus alleges that the Parliament used successive fixed-term contracts for the purposes of carrying out permanent tasks in the long term. The fact that the first and the second contracts are based on distinct provisions of the CEOS does not preclude a finding that the same functions were carried out under both. Accordingly, he submits, it is incorrect to claim, as the Parliament does, that the purpose of the second contract was merely to replace a person on maternity leave. In any event, the applicant did not have that information, which moreover is insufficiently proven. Relying on the judgment of 21 September 2011, Adjemian and Others v Commission (T‑325/09 P, EU:T:2011:506), the applicant claims that the Parliament committed an abuse of rights following from the choice of contracts offered to him and, in particular, the decision not to renew the second contract or not to offer him a contract for an indefinite period.
63 The Parliament contests the applicant’s arguments.
64 First of all, according to the case-law, the expression ‘established post on the staff of one of the institutions’ within the meaning of Article 1a(1) of the Staff Regulations covers only those posts expressly prescribed as ‘permanent’, or described in a similar manner, in the budget. Any interpretation to the contrary would increase to a considerable extent the number of permanent posts authorised by the budgetary authority, thus stultifying both the powers and the intentions of the budgetary authority (see judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 77 and the case-law cited).
65 Next, it follows from a combined reading of Article 1a(1) of the Staff Regulations and Articles 2 to 5 of the CEOS that permanent posts in the institutions are, in principle, intended to be filled by officials and that it is only by way of exception that such posts may be filled by other staff (judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 78).
66 As regards posts included in the list of posts annexed to the section of the budget relating to each institution which the budgetary authorities have classified as temporary, they must, pursuant to Article 2(a) and Article 9 of the CEOS, be filled by temporary staff. In so far as such posts are included in the list of posts, they correspond to permanent tasks defined as public service, although, by virtue of the choice made by the budgetary authority, the latter do not correspond to a ‘permanent post’ as defined in paragraph 64 above, which is intended to be filled by an official (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 81).
67 Moreover, although the first subparagraph of Article 3b(b) of the CEOS provides that contract staff for auxiliary tasks may be engaged, after the possibilities of temporary posting of officials within the institution have been examined, to replace certain persons who are unable for the time being to perform their duties, Article 88 of the CEOS stipulates that their employment contracts are to be concluded for a fixed period and limits the possible effective duration of that employment. That makes such employment insecure, in line with the very purpose of the employment, namely to replace a person who is unable for the time being to perform his or her duties (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 80). Moreover, although that provision provides for a maximum period of employment in that employment category, it does not impose any minimum period of employment on the AECE with respect to a member of staff in that employment category (judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 107).
68 It follows from the above that the principal characteristic of contracts of employment as contract staff for auxiliary tasks is their insecurity over time, in line with the very purpose of such contracts, which is to arrange for occasional staff to perform duties which — in particular due to the absence of a holder of the post — are insecure, and that members of staff of the EU civil service employed on the basis of a fixed-term contract are necessarily aware of the temporary nature of their employment and of the fact that it does not carry any guarantees of continued employment (see, to that effect, judgments of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 86, and of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 109).
69 In the context of the considerations mentioned in paragraphs 64 to 68 above, the case-law has provided that the AECE commits an abuse of rights when it relies upon Article 3b of the CEOS to assign tasks corresponding to a ‘permanent post’, or tasks corresponding to a post included in the list of posts annexed to the section of the budget relating to each institution, which the budgetary authorities have defined as temporary, for long periods to staff recruited under that article, who would thus be used outside the proper framework at the cost of prolonged uncertainty (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 86 and the case-law cited). The AECE is thus prohibited from using a succession of fixed-term employment contracts the object of which is the performance of permanent tasks on a long-term basis. Moreover, in so far as the AECE has used a succession of fixed-term employment contracts the object of which was the performance of permanent tasks on a long-term basis, that abuse could be rectified and the negative consequences for the person concerned could be nullified by reclassification of the employment contract in accordance with the provisions of the CEOS, which may in particular lead to the conversion of successive fixed-term employment contracts to contracts of indefinite duration (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 67 and the case-law cited).
70 In the present case, as the Parliament is correct to observe, the conditions required for holding that there has been an abuse of rights, in accordance with the principles which have just been reiterated, have not been met.
71 First, it must be observed that, under the first contract, the applicant was recruited as an APA. Since, under Article 5a of the CEOS, APAs are employed to assist Members of the European Parliament who, by definition, are elected for a clearly limited duration, it is clear that their work does not involve the performance of permanent tasks on a long-term basis.
72 Secondly, the second contract, for its part, was a ‘contract staff for auxiliary tasks’ contract within the meaning of Article 3b of the CEOS, under which the applicant was recruited to work not for a specific Member of the European Parliament but for a political group, irrespective of the fact that the content of the tasks performed by the applicant under those contracts might have partially overlapped since the Member of the European Parliament who had chosen him as an APA belonged to the political group for which he subsequently worked as a member of the contract staff for auxiliary tasks.
73 As regards the duration of the second contract, it is apparent from the file that it was offered to the applicant in order for him to replace a person who would be absent on maternity leave. Although the applicant denies that fact, it has been established by a statement of the Member of the European Parliament for whom the applicant worked as an APA and, above all, by the form (‘the form at issue’) used by the political group in question for submitting the request for the recruitment of the applicant as a member of the contract staff for auxiliary tasks. That form clearly mentions that the post was to replace a person during her maternity leave.
74 The applicant disputes the reliability of the form at issue, on the ground that it is neither electronically dated nor contains an electronic line stamp.
75 However, it must be observed that the form at issue is dated 23 March 2016 and it covers the period from and including 13 April 2016 to 12 October 2016. While admittedly those dates do not correspond to the dates finally inserted in the second contract, they are nevertheless very close to them. In the light of the inherent uncertainty with regard to the start date of a period of maternity leave and the possibility of slight discrepancies between the dates of the arrival or departure of the replacement and the dates of the departure or return of the holder of the post concerned, it must be held that the form at issue, which is corroborated by the statement of the Member of the European Parliament for whom the applicant had worked, is sufficient to prove that the second contract concerned the replacement of a person on maternity leave. Accordingly, as was the case under the first contract, it was not possible for that second contract to cover the performance of permanent tasks on a long-term basis.
76 It follows that, while each covered the performance of tasks on a temporary basis, the first and the second contracts were founded on two distinct legal bases and met two distinct needs, namely, first, the need to provide assistance to a specific Member of the European Parliament and, secondly, the need to provide support to a political group during the absence of a person on maternity leave. It cannot thus be held that the Parliament used two separate contracts to entrust the applicant with the performance of the same permanent tasks, which would have constituted an abuse of rights under the case-law recalled in paragraph 69 above.
77 The applicant’s situation therefore does not correspond to those dealt with under the case-law on which he seeks to rely so that, as the Parliament correctly observes, that case-law does not support his case.
78 Furthermore, the fact that the second contract concerned the replacement of a person on maternity leave renders irrelevant the other arguments put forward by the applicant under the present complaint, namely that there was a vacant post available on the expiry of the second contract which was allocated to another person, that being tantamount to a misuse of powers, a breach of the duty to have regard for the welfare of staff and a reprisal following the applicant’s complaints as to his classification.
79 In this connection, according to settled case-law, an act adopted by an AECE benefits from a presumption of lawfulness and a misuse of powers affecting that act will be deemed to exist only if it is proven that, in adopting the disputed act, the AECE pursued an objective other than that covered by the rules in question or if it is apparent, on the basis of objective, relevant and consistent evidence, that the act concerned was adopted for purposes other than those stated (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 91 and the case-law cited).
80 In the present case, since under the second contract the applicant had been recruited solely to replace a person on maternity leave, the non-renewal of that contract was simply due to the fact that the person concerned had returned to their post and it cannot be regarded as either a misuse of powers or a reprisal.
81 So far as the duty to have regard to the welfare of staff is concerned, it is settled case-law that the renewal of a contract of a member of the contract staff is merely a possibility left to the discretion of the AECE. The institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service. Thus, the competent authority is required, when it takes a decision concerning the situation of a member of staff, to take into consideration all the factors which may affect its decision, that is, not only the interest of the service, but also, in particular, that of the member of staff concerned. That is a consequence of the administration’s duty to have regard for the welfare of its staff, which reflects the balance of the reciprocal rights and obligations established by the Staff Regulations and, by analogy, the CEOS, in the relationship between a public authority and its staff (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraphs 118 and 119 and the case-law cited).
82 That being so, the CEOS does not impose on the administration a prior obligation to examine the possibility of assigning a member of the contract staff, such as the applicant, who is not assigned to a post listed in the list of posts annexed to the section of the budget relating to each institution, either in the event of the termination of a contract of indefinite duration or in that of the non-renewal of a fixed-term contract (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 120 and the case-law cited).
83 In the light of the case-law referred to in paragraphs 81 and 82 above, in the present case the AECE’s duty to have regard for the welfare of staff did not include the obligation to examine the possibility of extending the applicant’s second contract beyond the period covered by the maternity leave upon which that contract was based by assigning the applicant to another post, since such a step would have amounted to giving the applicant a right of priority which only officials have and which would have undermined the interests of other members of staff who wished to see their own contracts of employment renewed or of candidates in selection procedures opened for vacant posts (see, by analogy, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 135 and the case-law cited).
84 In the light of all the foregoing, the present complaint must be rejected.
Infringement of the right to be heard
85 The applicant essentially submits that the AECE did not hear him before adopting its non-renewal decision, in breach of Article 41(2) of the Charter of Fundamental Rights of the European Union.
86 The Parliament contends in reply that the purpose of the second contract was solely to replace a person on maternity leave so it was not necessary to hear the applicant before its expiry. There might have been such an obligation had the applicant expressly addressed a request for the renewal of his contract to the AECE. In its view that is not the case, having regard to the content of the applicant’s emails. According to the Parliament, even were that to be the case, the applicant would have had the opportunity to be heard by the competent persons had he been in the office regularly. It is of the opinion that, in any event, the outcome would not have been different even if the applicant had been heard on the issue of the renewal of the second contract, since the purpose of that contract was solely to replace a person on maternity leave and it could therefore not be extended.
87 It should be borne in mind as a preliminary point that the rights of the defence, as henceforth enshrined in Article 41 of the Charter of Fundamental Rights, which is of general application, include the procedural right provided for in paragraph 2(a) of that article of every person to be heard before any individual measure which would affect him or her adversely is taken (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 149 and the case-law cited).
88 Thus, the right to be heard, which must be safeguarded even where there are no applicable rules, requires that the person concerned must have been afforded the opportunity effectively to make known his views on any information against him which might have been taken into account in the act to be adopted (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 150 and the case-law cited).
89 In that regard, it must be remembered that the decision by an administration not to avail itself of the possibility of renewing the fixed-term contract of employment of a member of staff when it has such an option under the CEOS is not, formally speaking, a decision adopted at the end of a procedure opened against the person concerned (judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 151).
90 However, when a member of staff submits a request for renewal of his contract of employment pursuant to Article 90(1) of the Staff Regulations before the expiry of that contract or when the institution provides in its internal rules for the use in due time before the expiry of the contract of a member of staff of a specific procedure for renewal of that contract, then, at the end of such a procedure or in response to such a request under the Staff Regulations, a decision on renewal of the contract of the person concerned must be deemed to have been adopted by the AECE and, inasmuch as the decision adversely affects the person concerned, that person must have been heard by the AECE before the adoption of that decision (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 152 and the case-law cited).
91 Where the AECE decides, in so far as such an option is provided for in the CEOS, not to avail itself of its option under the CEOS to extend the contract of employment of a member of staff, such a decision not to renew can be adopted only once the person concerned has been able duly to put forward their point of view effectively, which may be a simple announcement by the AECE of its intention and its reasons for not availing itself of that option, as part of a written or verbal exchange, which may even be brief. That exchange must be initiated by the AECE, who has the burden of proof (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 153 and the case-law cited).
92 In the present case, given that the applicant’s emails cannot be regarded as a request for renewal of the second contract (see paragraph 52 above), the AECE was not required to hear the applicant before simply allowing the second contract to expire at the date which had been fixed in that contract since its signature.
93 If the applicant’s emails were to be regarded as amounting to a request for renewal of the second contract, it must be observed that, in contrast to what the Parliament contends, it was for the AECE to take the initiative with regard to hearing the applicant and to create the appropriate conditions to do so, in accordance with the case-law recalled in paragraph 91 above. However, the Parliament concedes that no one summoned the applicant to a meeting and asserts that it is the applicant who could have taken the initiative. Consequently, were the hypothesis in this paragraph to be accepted, then the Parliament would have infringed the applicant’s right to be heard.
94 However, according to the case-law, even where there has been infringement of the rights of the defence, it is also necessary, for the plea to be successful, that, had it not been for that irregularity, the outcome could have been different (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 157 and the case-law cited).
95 It must be stated in that regard that, since the second contract had been signed in order for the applicant to replace a person on maternity leave, the applicant could not have put forward any argument before the AECE such as to persuade the latter to extend that contract. That is moreover confirmed by the fact that all the arguments raised by the applicant concerning that issue at the litigation stage have been rejected.
96 The present complaint must therefore be rejected.
97 It follows from the foregoing that, despite the possible irregularity mentioned in paragraph 93 above, the applicant has not been able to establish that the Parliament’s conduct was vitiated by any illegality such as to incur liability. Thus one of the cumulative requirements for liability to be established (see paragraph 47 above) has not been satisfied.
98 The applicant’s other claims for damages must therefore be rejected, without its being necessary to rule on the plea of inadmissibility raised by the Parliament in relation to whether, so far as the non-material harm claimed is concerned, the applicant set out his allegations clearly enough to comply with Article 76(d) of the Rules of Procedure.
99 In the light of all the foregoing considerations, the present action must be dismissed as in part inadmissible and in part unfounded.
Costs
100 As a preliminary point, the part of the applicant’s heads of claim in relation to the costs in which he requests that the Court fix the amount that the Parliament should pay him must be dismissed as inadmissible. It must be recalled that, in the decision ending the proceedings, the Court determines exclusively how the costs are to be allocated between the parties, without ruling on the amount of the costs. In the event of a dispute, the amount of the recoverable costs may be the subject of a separate action, governed under Article 170 of the Rules of Procedure, distinct from the decision on the allocation of the costs. Thus, taxation of costs may only take place following the judgment or the order ending the proceedings (see, to that effect, order of 20 January 1995, Werner v Commission, T‑124/93, EU:T:1995:8, paragraph 10 and the case-law cited; judgment of 2 April 2014, Ben Ali v Council, T‑133/12, not published, EU:T:2014:176, paragraph 104, and order of 6 September 2016, Vanbreda Risk & Benefits v Commission, T‑199/14, not published, EU:T:2016:532, paragraph 16).
101 In any event, under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since all of the forms of order sought by the applicant have been dismissed, whether on grounds of inadmissibility or on their merits, he must be ordered to pay the costs, in accordance with the form of order sought by the Parliament.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr Kevin Karp to pay the costs.
Berardis | Papasavvas | Spineanu-Matei |
Delivered in open court in Luxembourg on 6 February 2019.