JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

27 November 2008

Case F-35/07

Bettina Klug

v

European Medicines Agency (EMEA)

(Civil service – Temporary staff – Non‑renewal of a fixed-term contract – Unfavourable appraisal report – Psychological harassment)

Application: brought under Articles 236 EC and 152 EA, in which Ms Klug seeks an order for the European Medicines Agency to extend the employment contract concluded on 7 February 2002, which took effect on 1 July 2002 for a period of five years, to pay her compensation of EUR 200 000 for the non-material damage suffered, and to withdraw her appraisal report for the period from 31 December 2004 to 31 December 2006 and to draw up a new report in the light of the findings of the Tribunal.

Held: The action is dismissed. The parties are to bear their own costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Definition – Decision referring to the expiry date of a temporary staff contract to be interpreted as a decision not to renew the contract

(Staff Regulations, Art. 90(2))

2.      Officials – Temporary staff – Recruitment – Renewal of a fixed-term contract – Administration's discretion

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

3.      Officials – Obligation of administration to provide assistance – Scope – Administration’s duty to examine complaints of psychological harassment and to inform the complainant of the action taken

(Staff Regulations, Arts 24 and 90(1); Conditions of Employment of Other Servants, Art. 11)

1.      A decision of the administration which, in drawing the attention of a temporary staff member to the expiry date of his renewable contract of employment, cannot but be understood by the person concerned as a refusal to extend that contract constitutes an act adversely affecting the person within the meaning of Article 90(2) of the Staff Regulations. Such a decision, which has the effect of depriving a temporary staff member of a continued employment relationship within a Community institution is, by its very nature, an act which directly and immediately affects the interests of that staff member by bringing about a distinct change in his legal situation.

(see para. 43)

See:

T-160/04 Potamianos v Commission [2008] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 23

F-38/06 Bianchi v ETF [2007] ECR-SC I-A-1-0000 and II‑A‑1‑0000, paras 92 to 94

2.      The termination of a fixed-term temporary staff contract pursuant to Article 47 of the Conditions of Employment of Other Servants, provided that it complies with the period of notice provided for in the contract, and the early termination of a fixed-term temporary staff contract fall within the broad discretion of the competent authority, and review by the Community judicature must therefore be confined, irrespective of its review of compliance with the obligation to state reasons, to ascertaining that there has been no manifest error or misuse of powers. The same applies a fortiori in the case, not of an early termination, but of the non-renewal of a fixed-term temporary staff contract, since the renewal of the contract is merely a possibility which is subject to the requirement that it must be in the interests of the service.

In that respect, the competent authority should, when taking a decision concerning the situation of a member of staff, take into consideration all the factors which may affect its decision and, in particular, the interests 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 the 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 civil servants. However, the taking into consideration of the personal interests of the staff member concerned should not extend so far as to prevent the competent authority from not renewing a fixed-term contract despite the opposition of that staff member, if the interests of the service demand it.

Consequently, review by the Community judicature must be confined to ascertaining that there was no manifest error in the assessment of the interests of the service which may have provided grounds for not renewing the temporary staff contract, or misuse of powers, or prejudice to the duty of care which is incumbent on a Community institution when it is called upon to decide on the renewal of a contract between itself and one of its staff .

(see paras 65-68, 79)

See:

25/80 De Briey v Commission [1981] ECR 637, para. 7; C-298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 38

T-45/90 Speybrouck v Parliament [1992] ECR II‑33, paras 97 and 98; T-51/91 Hoyer v Commission [1994] ECR-SC I‑A‑103 and II‑341, para. 36; T-13/95 Kyrpitsis v ESC [1996] ECR-SC I‑A‑167 and II‑503, para. 52; T-123/95 B v Parliament [1997] ECR-SC I‑A‑245 and II‑697, para. 70; T-223/99 Dejaiffe v OHIM [2000] ECR-SC I‑A‑277 and II‑1267, paras 51 and 53; T-7/01 Pyres v Commission [2003] ECR-SC I‑A‑37 and II‑239, paras 50, 51 and 64; T-258/03 Mausolf v Europol [2005] ECR-SC I‑A‑45 and II‑189, para. 49

3.      The obligation to provide assistance provided for in Article 24 of the Staff Regulations, applicable to members of the temporary staff pursuant to the reference contained in Article 11 of the Conditions of Employment of Other Servants, includes, in particular, the duty of the administration to examine seriously, expeditiously and in total confidentiality, a complaint of psychological harassment and to inform the complainant of the action taken in respect of the complaint.

To that end, it is sufficient that the official or staff member who is seeking the protection of his institution submit an application under Article 24 of the Staff Regulations, in accordance with Article 90(1) of the Staff Regulations, containing at least some evidence of the reality of attacks of which he claims he was the victim. When such evidence is provided, the institution concerned is under an obligation to take the necessary measures, in particular to undertake an inquiry, with the cooperation of the complainant, to determine the facts which gave rise to the complaint.

(see paras 73, 74, 76)

See:

18/78 V. v Commission [1979] ECR 2093, para. 15; 224/87 Koutchoumoff v Commission [1989] ECR 99, paras 15 and 16

T-5/92 Tallarico v Parliament [1993] ECR II‑477, paras 30 and 31