ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)
23 October 2012 (*)
(Civil service – Temporary staff – Procedure relating to the renewal of a temporary staff contract – Communication to the staff member of the negative opinion of the reporting officer as regards renewal – Act adversely affecting an official – None – Application for annulment of unfavourable comments on performance in annual appraisal reports – Action manifestly inadmissible)
In Case F‑61/11,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Daniele Possanzini, member of the temporary staff at the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), residing in Warsaw (Poland), represented by S. Pappas, lawyer,
applicant,
v
European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), represented by S. Vuorensola and H. Caniard, acting as Agents, assisted by D. Waelbroeck and A. Duron, lawyers,
defendant,
THE CIVIL SERVICE TRIBUNAL
(Second Chamber)
composed of M. I. Rofes i Pujol (Rapporteur), President, I. Boruta and K. Bradley, Judges,
Registrar: W. Hakenberg,
makes the following
Order
1 By application received at the Registry of the Tribunal on 27 May 2011, the applicant brought the present action seeking, essentially, annulment, first, of the ‘decision’ of 24 January 2011, of which the applicant was informed during an oral interview with his reporting officer, an interview in the course of which that reporting officer indicated to him that he did not intend to propose the renewal of his contract, second, of part of his appraisal report in respect of the period from 1 August 2006 to 31 December 2008, drawn up in 2009, and third, of part of his appraisal report in respect of the period from 1 January 2009 to 31 December 2009, drawn up in 2010.
Legal context
2 The Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provide, in Article 91(4) thereof:
‘By way of derogation from paragraph 2, the person concerned may, after submitting a complaint to the appointing authority pursuant to Article 90(2), immediately file an appeal with the Court of Justice [of the European Union], provided that such appeal is accompanied by an application either for a stay of execution of the contested act or for the adoption of interim measures. The proceedings in the principal action before the Court of Justice shall then be suspended until such time as an express or implied decision rejecting the complaint is taken.’
3 Article 2 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, “temporary staff” means:
(a) staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;
…’
4 Article 8 of the CEOS stipulates:
‘Temporary staff to whom Article 2(a) applies may be engaged for a fixed or indefinite period. The contracts of such staff who are engaged for a fixed period may be renewed not more than once for a fixed period. Any further renewal shall be for an indefinite period.
...’
5 The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) compiled a document, entitled ‘Contract Renewal Policy for Temporary Agents’ (‘the contract renewal rules’). That document, distributed to Frontex staff by Administrative Notice No 40 of 26 July 2010, approved by the Director of the Administration Division (‘Administrative Notice No 40’), observes in its introduction that all ‘temporary agent posts (with the exception of the Executive Director and Deputy Executive Director) are identified as posts of long-term duration’ and that Frontex is willing to use the possibility of renewing contracts to that end.
6 Under point 2 of the contract renewal rules, concerning the contract renewal form and stages of the procedure:
‘(a) The first step before starting any paperwork preparation for contract renewals is to know if the [staff member concerned] is interested in the renewal of his/her contract. To find out, the Human Resources [Department] ... will send an e-mail to the staff member to find out about this, 14 months in advance of the final date of the contract.
(b) If the answer received from the staff member is positive (he/she is interested in renewing the contract) [the Human Resources Department] will prepare the [c]ontract [r]enewal [f]orm ... and will send an electronic copy of it to the Reporting Officer of the staff member for further [action].
(c) The Reporting Officer must fill in Section 4 of the form with all relevant information proposing or not the renewal of the contract for another fixed period ([where] it is the [first] renewal) or for an indefinite period ([where] it is the [second] renewal). Once Section 4 is completed, the Reporting Officer will print out the form, will sign it, and will pass it to the Countersigning Officer for consideration.
(d) The Countersigning Officer will then assess the proposal from the Reporting Officer and [, where he agrees with it,] will countersign Section 4 supporting the proposal. [Where] the Countersigning Officer disagrees with the proposal he/she will explain the reasons in the section for comments and ... will [also] sign Section 4. Once Section 4 is signed by the Countersigning Officer he/she will send the contract renewal form to the Director of Division for approval and comments stating his/her recommendation.
(e) Once the Director of Division has filled in Section 5, he will send back the form to [the Human Resources Department] who will then send it to Frontex Executive Director for final decision on the contract renewal of the staff member (Section 6). Once the Executive Director has signed the form, from his office the form will go back to [the Human Resources Department] for further action.’
7 Point 3 of the contract renewal rules, which sets out the procedure to be followed by the Human Resources Department once the renewal form has been signed by the Executive Director, provides:
‘Once the form [, signed by the Executive Director,] arrives [back at the Human Resources Department] ... it will be dealt with according to the outcome of the [Executive Director’s] decision ([three] possibilities):
(a) [r]enewal of contract for another [five] years
(b) [r]enewal of contract for an indefinite period
(c) [n]o renewal of contract
...
(c) No renewal of contract
[Where the] Executive Director’s decision is not to renew the contract, [the Human Resources Department] will prepare a letter reflecting the arguments given by the Reporting Officer (business reasons, performance related reasons, or both). The letter will be signed by the Executive Director and given to the staff member 12 months in advance of the [expiry] date of the current contract.’
8 Administrative Notice No 40 informs staff, inter alia, that temporary staff employed by Frontex will be informed of the decision on whether or not to renew their contract approximately 12 months before its expiry date.
9 The Frontex annual appraisal report form shows that the overall assessment of the jobholder’s performance, which includes the attainment of fixed objectives, efficiency, abilities and conduct, involves classification on a scale with five levels, namely from level IV, where the jobholder’s performance has not met expectations, to level IA, which is granted by the reporting officer where the jobholder’s performance during the course of the appraisal period has consistently exceeded expectations. Classification at performance level III is granted where the jobholder has only partly met expectations, whereas classification at level IB is granted where the jobholder has frequently exceeded expectations.
Factual background to the dispute
10 The applicant was recruited on 1 August 2006 by Frontex on the basis of Article 2(a) of the CEOS, as a member of the temporary staff (category AD, grade A*10, step 2) for a period of five years, expiring on 31 July 2011. After a probationary period of six months, his performance was deemed to be adequate.
11 As Frontex commenced its activities on 1 May 2005, the 2006/2008 appraisal procedure was also the first staff appraisal procedure. In that appraisal, the applicant’s performance was assessed positively by his line manager, Mr A., who, as reporting officer, proposed, on 6 May 2009, to award him the performance level IB. However, the countersigning officer, Mr B., who was also the director of the Administration Division, included negative comments in the report and recommended, on 30 October 2009, that he be awarded performance level III.
12 In the 2009 appraisal procedure, the applicant’s reporting officer, Mr A., again gave the applicant a positive evaluation and proposed, on 20 January 2010, the same performance level IB, while the countersigning officer, Mr B., again included negative comments and recommended performance level III, on 21 June 2010.
13 From December 2009, Mr B. became the applicant’s line manager and his direct reporting officer for the appraisal procedure in respect of the period commencing on 1 January 2010.
14 On 2 August 2010, one year before the expiry of the applicant’s contract, the coordinator of the Human Resources Department sent the applicant an email to inform him that, under Article 8 of the CEOS, his contract could be renewed once for a fixed duration. At the same time, the coordinator of the Human Resources Department asked him if he was interested in the renewal of his contract so that, if he was, the procedure for renewal of the contract could be commenced 12 months before its expiry. Lastly, in that email the applicant was asked to reply quickly to that request. By an email of the same day, the applicant replied that he was interested in the offer. Also on the 2 August 2010 the applicant received confirmation that the procedure for the renewal of his contract would be initiated immediately.
15 On 24 January 2011, the applicant had an interview with Mr B., his line manager and direct reporting officer, who informed him that he was opposed to the renewal of the contract. The applicant passed on that information, by email of the same day, to the coordinator of the Human Resources Department. In that email the applicant asked to be sent the formal decision of the Executive Director of Frontex as quickly as possible.
16 By email of 25 January 2011, sent inter alia to the applicant, Mr B. confirmed the discussion of the previous day and his intention to complete the form on the renewal procedure and to send it on in order to gather the necessary signatures.
17 On 25 January 2011, the applicant also received an email in which, in response to his request, the coordinator of the Human Resources Department informed him that, until the form for the renewal of that contract was sent back to him (the coordinator) with the signature of the Executive Director of Frontex, he could not inform the applicant officially of the result of the procedure for the renewal of his contract.
18 The applicant filed a complaint under Article 90(2) of the Staff Regulations, dated 7 February 2011 and notified the following day by email, to challenge the ‘decision’ of 24 January 2011 resulting from the interview which he had had that day with Mr B., a decision confirmed by an email from Mr B. on 25 January 2011.
19 On 28 March 2011, the Executive Director of Frontex adopted the decision not to renew the applicant’s contract, on the recommendation of the Deputy Executive Director, who was also the applicant’s countersigning officer for his performance appraisal. The applicant was informed of that decision on 13 April 2011.
20 By letter of 4 May 2011, the authority empowered to conclude contracts of employment, in this case the Executive Director of Frontex, dismissed the complaint dated 7 February 2011, which had been notified the next day by email, on the ground that it was premature, since the decision not to renew the applicant’s contract had not yet at that date been formally adopted.
Forms of order sought
21 In his application, the applicant claims that the Tribunal should:
– annul the ‘decision’ of 24 January 2011, as confirmed by the email of 25 January 2011, the decision of 28 March 2011 and the letter of 4 May 2011 of the Executive Director of Frontex (‘the contested decisions’);
– annul part of his appraisal report in respect of the period from 1 August 2006 to 31 December 2008, in so far as that part contains the diverging comments of the countersigning officer of 30 October 2009;
– annul part of the appraisal report in respect of the period from 1 January 2009 to 31 December 2009, in so far as that part contains the diverging comments of the countersigning officer of 21 June 2010;
– order Frontex to pay the costs.
22 Frontex contends that the Tribunal should:
– dismiss the application;
– order the applicant to pay the costs.
Procedure
23 After the application in the present case was submitted on 27 May 2011, the applicant, on 7 July 2011, lodged an application for suspension of operation of the decisions by which Frontex refused to renew his contract as a member of the temporary staff, an application which was rejected by order of the President of the Tribunal of 16 November 2011 in Case F-61/11 R Possanzini v Frontex.
24 Following an initial exchange of pleadings, in the light of the plea of inadmissibility raised by Frontex and of the interim order mentioned above, the Tribunal granted leave for a second exchange of pleadings, albeit restricted to issues of admissibility. The reply and the rejoinder were lodged on 2 January 2012 and 1 March 2012 respectively. The written procedure was concluded on 5 March 2012.
The Tribunal’s decision to rule by reasoned order
25 Under Article 76 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.
26 The situation at which that provision is directed covers any action which will clearly fail for reasons related to admissibility or the merits of the case.
27 It is settled case-law that, if, upon reading a case-file, the Chamber hearing the case, provided that it considers itself to be sufficiently informed by the documents before it, is entirely convinced of the inadmissibility of the application and further considers that the holding of a hearing would be unlikely to provide any new information whatsoever in that respect, the dismissal of the application by reasoned order on the basis of Article 76 of the Rules of Procedure not only benefits procedural economy, but also saves the parties the costs entailed by the holding of a hearing (see, for example, order of 25 April 2012 in Case F‑108/11 Oprea v Commission, paragraph 12).
28 In this case, the Tribunal considers that it has sufficient information from the documents before it and has decided, pursuant to Article 76 of the Rules of Procedure, to give a decision on the action by reasoned order without taking further steps in the proceedings.
Admissibility of the action
29 The application contains three distinct heads of claim: (i) the annulment of the contested decisions, (ii) the annulment of part of the applicant’s appraisal report drawn up in 2009, in respect of the period from 1 August 2006 to 31 December 2008, in so far as that part contains the negative comments of the countersigning officer which diverge from the positive assessments of the reporting officer and, (iii) the annulment of part of the applicant’s appraisal report drawn up in 2010, in respect of the period from 1 January 2009 to 31 December 2009, in so far as that part contains the negative comments of the countersigning officer, which diverge from the positive assessments of the reporting officer.
Admissibility of the second and third heads of claim
30 It must be recalled that, pursuant to Article 35(1)(e) of the Rules of Procedure, the application must state the pleas in law and the arguments of fact and law relied on. Those particulars must be sufficiently clear and precise to enable the defendant to prepare his defence and to enable the Tribunal to give judgment in the action without having to seek further information, if appropriate. In order to guarantee legal certainty and sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (judgment of 15 February 2011 in Case F-76/09 AH v Commission, paragraph 29).
31 That is all the more true since, according to Article 7(3) of Annex I to the Statute of the Court of Justice of the European Union, the written stage of the procedure before the Tribunal is to comprise, in principle, a single exchange of written pleadings, unless the Tribunal decides otherwise. That particular feature of the procedure before the Tribunal explains why, contrary to what is provided for in proceedings before the General Court of the European Union, or the Court of Justice, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice, the pleas in law and the arguments in the application may not be in summary form. Such flexibility would have the practical effect of rendering largely ineffective the special, and later, rule set out in Annex I to the Statute of the Court of Justice (AH v Commission, paragraph 30).
32 In addition, the third paragraph of Article 19 of the Statute of the Court of Justice, applicable to proceedings before the Tribunal by virtue of Article 7(1) of Annex I to the Statute, provides that the parties, other than the Member States, the institutions of the European Union, the States which are parties to the Agreement on the European Economic Area and the EFTA Surveillance Authority, which is covered by that Agreement, must be represented by a lawyer. The main role of that lawyer, as a legal representative, is to ensure that the heads of claim of the application are based on sufficiently intelligible and coherent arguments, in view of the fact that the written procedure before the Tribunal comprises, in principle, only one exchange of written pleadings (AH v Commission, paragraph 31).
33 The Tribunal notes that although, admittedly, in his application, the applicant states that part of his appraisal report drawn up in 2009, in respect of the period from 1 August 2006 to 31 December 2008, contains negative comments of the countersigning officer which diverge from the positive assessments of the reporting officer and that part of his appraisal report drawn up in 2010, in respect of the period from 1 January 2009 to 31 December 2009, also contains negative comments of the countersigning officer which diverge from the positive assessments of the reporting officer, the fact remains that the second and third heads of claim, as such, are only stated generally and are not supported in any way by arguments, contrary to the rule laid down in Article 35(1)(e) of the Rules of Procedure.
34 Consequently, the second and third heads of claim must be dismissed as manifestly inadmissible.
Admissibility of the first head of claim
Arguments of the parties
35 Frontex submits that the first head of claim, by which the applicant seeks annulment of the contested decisions, should be declared inadmissible since it is directed against acts which do not adversely affect the applicant in so far as they are not capable of directly affecting the latter’s position in a clear and unconditional manner.
36 The applicant claims that it follows from Administrative Notice No 40 that the member of staff concerned by the renewal is informed of the adoption of the decision to renew his contract approximately 12 months prior to its expiry. In the same way, point 3(c) of the contract renewal rules provides that, where the Executive Director decides not to renew a contract, the letter containing the arguments of the reporting officer is to be given to the member of staff 12 months before the expiry of the current contract. In the latter case, the member of staff is able to anticipate what the next steps will be and has a reasonable period within which to react to the situation.
37 The applicant submits that the email of 2 August 2010, which was sent to him by the coordinator of the Human Resources Department 12 months before his contract expired, constitutes a clear sign that Frontex had taken a decision to renew his contract. Were that not the case, he should have received, at that time, a decision of non-renewal of his contract. The applicant takes the view that the time-limits which Frontex fixed in the contract renewal rules, of which the staff were informed by Administrative Notice No 40, are binding on the administration and must be observed.
38 The applicant also submits that Mr B.’s oral communication to him of 24 January 2011, which was confirmed by Mr B.’s email of the next day, reflects the irrevocable position adopted by Frontex management. It must therefore be regarded as the revocation of the renewal decision communicated on 2 August 2010. The applicant takes the view that the comments of the Executive Director in the contract renewal form, signed on 28 March 2011, constitute the rejection of the complaint brought against the non-renewal ‘decision’ of 24 January 2011 and that, in any event, the Executive Director’s note of 4 May 2011 expressly rejected that complaint.
39 The applicant further claims that, even if, ex hypothesi, the Tribunal were moved to hold that the email of 2 August 2010 constitutes merely the beginning of the renewal procedure, the application should still be declared admissible. The oral communication of 24 January 2011, confirmed the next day by email, would not lose its nature of a refusal to renew the contract and the Executive Director’s comments, signed on 28 March 2011, would still constitute a rejection of the complaint, a rejection which was confirmed by the letter of 4 May 2011.
Findings of the Tribunal
40 It is settled case law that the admissibility of an application for annulment, which has its origin in the employment relationship which links the staff member with his institution, must be examined in the light of the requirements in Articles 90 and 91 of the Staff Regulations. In this regard, for any action for annulment brought by an official against the institution by which he is employed to be admissible, it is a necessary condition that there be an act adversely affecting him within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations (see, to that effect, judgments of 3 April 1990 in Case T‑135/89 Pfloeschner v Commission, paragraph 11, and of 29 June 2004 in Case T-188/03 Hivonnet v Council, paragraph 16).
41 It is also settled case-law that, for the purposes of Article 90(2) of the Staff Regulations, only those acts or measures which have binding legal effects such as to affect an official’s interests by bringing about a distinct change in his legal position are acts adversely affecting officials. Such acts must have as their source the authority empowered to conclude contracts of employment and be in the nature of a decision (order of 25 October 1996 in Case T-26/96 Lopes v Court of Justice, paragraph 19 and case-law cited).
42 The European Union judicature has consistently held that, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is generally open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (judgment of 16 March 2009 in Case T-156/08 P R v Commission, paragraph 49).
43 As regards staff cases, acts preparatory to a final decision do not adversely affect the applicant and therefore can only be contested incidentally in an action against acts capable of being annulled. Although certain purely preparatory measures may adversely affect an official in so far as they can influence the content of a subsequent act open to review, those measures cannot be the subject of an independent action and must be challenged in support of an action directed against that act (order of 18 December 2003 in Case T-215/02 Gómez-Reino v Commission, paragraph 47).
44 In the present case, it is apparent from the wording of the email of 2 August 2010, sent to the applicant by the coordinator of the Human Resources Department, that that email, in addition to indicating the legal basis of the CEOS which lays down the conditions under which some contracts can be renewed and Frontex’s intention to make use of that possibility, does no more than ask the applicant a very specific question relating to his wish to have his contract renewed, taking account of the fact that that contract terminates on 31 July 2011. Contrary to the applicant’s assertion, it follows from that wording that, since the renewal procedure had not yet started on 2 August 2010, the authority empowered to conclude contracts of employment could not yet have adopted a decision one way or the other.
45 It must be noted in this connection that, by the adoption of the contract renewal rules, Frontex has equipped itself with a complex procedure applicable where the contract of one of its members of staff approaches its expiry date. Pursuant to point 2(a) of those rules, that procedure must start with an email sent by the Human Resources Department to the member of staff concerned in order to ask him whether he is interested in his contract being renewed. That email must reach the staff member 14 months before the expiry of his contract.
46 Under point 2(b) of the contract renewal rules, where the staff member answers in the affirmative, the Human Resources Department prepares the contract renewal form and sends an electronic version of it to the reporting officer of the staff member concerned. Point 2(c) provides that the reporting officer must fill in section 4 of the form and make a proposal regarding renewal of the contract. He then transfers the form to the countersigning officer for examination. Point 2(d) stipulates that the countersigning officer must assess the proposal. If he agrees with that proposal, he must put a cross in the box provided for that purpose. If he does not agree with it, he must set out the reasons for this. In all cases, he must sign the form and send it to the Director of Division for approval and comments, stating his recommendation. According to point 2(e), when the Director of Division has filled in section 5 of the form, he sends it to the Human Resources Department, which sends it to the Executive Director of Frontex so that he can adopt a final decision. Next, the Executive Director sends that decision back to the Human Resources Department. Point 3 provides that, when the form comes back to the Human Resources Department, signed by the Executive Director, the next steps in the procedure vary according to whether the decision is in favour of renewal or non-renewal. Lastly, under point 3(c), where the contract is not renewed, the Human Resources Department prepares a letter which repeats the arguments put forward by the countersigning officer in support of his proposal. The letter is signed by the Executive Director of Frontex and notified to the staff member 12 months before his contract expires.
47 Consequently, it is for the Executive Director to adopt the decision either to renew a staff member’s contract or not to do so and the provisional proposals and opinions which are included on the form constitute only preparatory acts which, as they are not definitive, cannot be challenged independently of the final decision.
48 In the present case, the renewal form for the applicant’s contract as a member of the temporary staff was completed on 28 February 2011 by his reporting officer, who proposed that the applicant’s contract not be renewed. That proposal was then validated on 7 March 2011 by the Deputy Executive Director of Frontex, acting as countersigning officer, and the decision not to renew the applicant’s contract was finally adopted by the Executive Director of Frontex on 28 March 2011.
49 Therefore, in the light of the role given to a staff member’s reporting officer by the rules governing the procedure which may culminate in the renewal of a contract, namely that of making a reasoned proposal regarding the renewal or non-renewal of that staff member’s contract, when the applicant spoke on 24 January 2011 with Mr B., his reporting officer, the latter could only inform the applicant of the content of the proposal he was going to make.
50 It follows that, not only is the communication by Mr B. on 24 January 2011 not a decision of non-renewal of the applicant’s contract which adversely affects him, but also that, contrary to what the applicant maintains, neither does that communication constitute the withdrawal of a previous decision to renew his contract, of which he claims he was informed by the email of 2 August 2010. As is apparent from paragraph 44 above, at that date the renewal procedure had not yet begun and it was therefore impossible for the authority empowered to conclude contracts of employment to have already adopted a decision one way or the other.
51 That finding cannot be called into question by the applicant’s arguments relating to the emails of 25 January 2011 from Mr B. and the coordinator of the Human Resources Department.
52 So far as concerns Mr B.’s email, even though, at the date on which it was sent, the opinion of Mr B., the applicant’s reporting officer and Director of the Administration Division, might already have been settled, it is apparent from the wording of that email that Mr B. intended to complete the form that day and to ‘put it in circulation’ in order for the next steps in the procedure to be taken. In fact he only did that more than one month later. Consequently, it is not possible to conclude on the basis of that email that on 24 January 2011 the decision not to renew the contract had already been adopted and that it had been communicated to the applicant.
53 As for the email of the coordinator of the Human Resources Department, it is common ground that it contains the response to the request the applicant had made of the coordinator the previous day that the Executive Director’s decision be communicated to him quickly. In his reply, the coordinator merely informed the applicant that he could only communicate to him the decision relating to the renewal of his contract when he had received the form provided for this purpose, signed by the Executive Director.
54 In the light of the information available to him on 25 January 2011, the applicant therefore could not fail to be aware that the definitive decision relating to the future of his contract had not yet been adopted.
55 It follows from the foregoing that the claims for annulment concerning the alleged decision of 24 January 2011, and its confirmation the next day by email, must be rejected as manifestly inadmissible.
56 It is still necessary to examine the application for annulment of the decision of 28 March 2011, by which the Executive Director of Frontex decided not to renew the applicant’s contract, and the decision of 4 May 2011, by which the Executive Director rejected the applicant’s complaint (dated 7 February 2011 and notified the next day by email), decisions which the applicant challenges in so far as they confirm that of 24 January 2011.
57 The Tribunal finds that the decision of 28 March 2011 was indeed that by which the Executive Director concluded that the applicant’s contract should not be renewed. It is a decision adversely affecting the applicant, but its lawfulness cannot be examined in the context of the present action. The applicant challenged that decision in a complaint dated 16 May 2011 and the application in the present case was brought on 27 May 2011, before he had even an implied decision from the authority empowered to conclude contracts of employment rejecting the complaint.
58 It follows that the claims for annulment directed against the decision of 28 March 2011 are premature and must be rejected as manifestly inadmissible, without it being possible in this case to apply the provisions of Article 91(4) of the Staff Regulations, which allow the party concerned to file an appeal with the Tribunal immediately after submitting a complaint.
59 Indeed, the provisions of Article 91(4) of the Staff Regulations require the applicant to attach to his appeal an application for a stay of execution of the contested act. In the present case, the application for a stay of execution was submitted only on 7 July 2011, that is, more than one month after the introduction of the action in the main proceedings, in the context of which, moreover, there is no mention of an application for interim measures.
60 So far as concerns the letter of 4 May 2011, by which the Executive Director of Frontex communicated his rejection of the complaint dated 7 February 2011 and notified the next day by email, the Tribunal notes that it contains neither a re-examination of the applicant’s situation in the light of new factual or legal information nor amends or completes the alleged decision of 24 January 2011. Therefore, that rejection of the complaint of 7 February 2011 cannot adversely affect the applicant.
61 That finding is confirmed by an examination of the wording of the letter of 4 May 2011, in which its author, first, indicates to the applicant that, when he submitted his complaint, the decision on the renewal of his contract had not yet been adopted, second, explains the successive stages of the procedure which ensued following the interview on 24 January 2011 between the applicant and his reporting officer until the adoption of the decision of 28 March 2011 and, third, informs the applicant that he did not intend to reconsider his decision.
62 A letter such as that of 4 May 2011, which is purely informative, does not constitute a measure having binding legal effects such as to affect the applicant’s interests for the purpose of the case-law referred to in paragraph 41 above.
63 Consequently, since the decision of 4 May 2011 is not an act adversely affecting the applicant, the claims for annulment brought against it must be rejected as manifestly inadmissible.
64 It follows from the above that the action in its entirety must be dismissed as manifestly inadmissible.
Costs
65 Under Article 87(1) 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 be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
66 It follows from the reasoning set out above that the applicant has failed in his action. Furthermore, in its pleadings Frontex has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant must bear his own costs and is ordered to pay the costs incurred by Frontex.
On those grounds,
THE CIVIL SERVICE TRIBUNAL
(Second Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. Mr Possanzini shall bear his own costs and is ordered to pay the costs incurred by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union.
Luxembourg, 23 October 2012.
W. Hakenberg | | M.I. Rofes i Pujol |