ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

12 December 2014

Case F‑63/11 RENV

Luigi Macchia

v

European Commission

(Civil service — Temporary staff — Referral back to the Tribunal after setting aside — Non-renewal of a fixed-term contract — Administration’s discretion — Manifest error of assessment — Action manifestly inadmissible and manifestly unfounded)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Macchia sought, in particular, annulment of the implied decision not to renew his temporary staff contract and, in so far as necessary, annulment of the decision of 22 February 2011 rejecting the complaint lodged against the implied decision and, consequently, his reinstatement in the post he occupied in the European Anti-Fraud Office (OLAF). In the alternative, he sought an order that the European Commission make good the material damage suffered and, in any event, an order that the Commission pay compensation for the non-material damage sustained, evaluated ex æquo et bono at EUR 5 000, as well as the costs.

Held:      The action is dismissed as in part manifestly inadmissible and in part manifestly unfounded. Mr Macchia is to bear his own costs incurred in Cases F‑63/11, T‑368/12 P and F‑63/11 RENV respectively and is ordered to pay the costs incurred by the European Commission in Cases F‑63/11 and F‑63/11 RENV. The European Commission is to bear its own costs incurred in Case T‑368/12 P.

Summary

Officials — Temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the interests of staff — Taking into consideration the interests of the staff member concerned and of the service

(Conditions of Employment of Other Servants, Arts 2(a), 8, first para., and 47(b)(i))

The possibility of renewing the contract of a member of the temporary staff is merely an option left to the discretion of the competent authority, since the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service.

When the competent authority takes a decision concerning the situation of a staff member, it must take into consideration all the factors which may affect its decision, that is to say, not just the interests of the service, but also, in particular, those of the staff member concerned. That is a consequence of the administration’s duty to have regard for the welfare of its staff, which reflects the balance of reciprocal rights and obligations established by the Staff Regulations and, by analogy, the Conditions of Employment of Other Servants, in the relationship between a public authority and its staff.

That being the case, in view of the broad discretion conferred on the institutions in that context, review by the courts is limited to determining that there has been no manifest error or misuse of power.

In that regard, an error may only be said to be manifest where it may easily be detected in the light of the criteria to which the legislature intended the exercise of decision-making powers to be subject.

Temporary staff with a fixed-term contract may not rely on a right to stability of employment that would require an institution to ascertain, before deciding not to renew a temporary staff contract in that category, whether the staff member might not be redeployed to another post.

Consequently, observance of the duty to have regard to the interests of staff and the concept of the interests of the service do not require the authority authorised to conclude contracts of employment first to consider the possibility of redeploying the staff member concerned to another post before deciding not to renew his temporary staff contract.

(see paras 40-44, 46)

See:

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

Judgments in Kyrpitsis v ESC, T‑13/95, EU:T:1996:50, para. 52; Potamianos v Commission, T‑160/04, EU:T:2008:438, para. 30; ETF v Landgren, T‑404/06 P, EU:T:2009:313, para. 162, and EMA v BU, T‑444/13 P, EU:T:2014:865, para. 28 and the case-law cited therein

Judgment in Canga Fano v Council, F‑104/09, EU:F:2011:29, para. 35