Language of document : ECLI:EU:F:2013:137

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

30 September 2013

Case F‑124/11

Daniele Possanzini

v

European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)

(Civil service — Frontex staff — Temporary staff — Career development report containing negative assessments of the reporting officer not communicated to the person concerned — Non-renewal of a fixed-term contract — Decision based on the opinion of the reporting officer — Rights of defence — Infringement — Dispute of a financial character — Unlimited jurisdiction)

Application:      brought by Mr Possanzini under Article 270 TFEU, essentially seeking annulment of the decision of the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), of 28 March 2011, not to renew his contract as a member of the temporary staff.

Held:      The decision not to renew Mr Possanzini’s contract as a member of the temporary staff, adopted by the Executive Director of Frontex on 28 March 2011, is annulled. Frontex is ordered to pay the sum of EUR 5 000 by way of damages. Frontex will bear its own costs and is ordered to pay those incurred by Mr Possanzini.

Summary

1.      Officials — Members of the temporary staff — Recruitment –Internal directive of a Union agency relating to the renewal of fixed-term contracts — Legal effects — Infringement — Service-related fault

(Conditions of Employment of Other Servants, Art. 8)

2.      Officials — Members of the temporary staff — Decision affecting the administrative status of a temporary member of staff — Matters taken into account which did not appear on the personal file, but which had been brought to the official’s attention before the decision was made — Legality — Conditions

(Staff Regulations, Art. 26)

3.      Actions brought by officials — Unlimited jurisdiction — Disputes of a financial character within the meaning of Article 91(1) of the Regulations — Meaning — Action concerning the lawfulness of a decision not to renew a contract– Included

(Staff Regulations, Art. 91(1))

4.      Officials — Remuneration — Weightings — Purpose — Equivalent purchasing power — Relevance for the purposes of comparing the level of remuneration received by staff and officials in different places — None

(Staff Regulations, Art. 64; Conditions of Employment of Other Servants, Art. 20)

1.       A decision of an EU institution or body which is communicated to all staff and seeks to ensure that the officials and members of the staff concerned are treated identically, in an area in which that institution or body has a broad discretion conferred by the Staff Regulations, is an internal directive and must, as such, be regarded as an indicative rule of conduct which the administration imposes upon itself and from which it may not depart without stating the reasons which have led it to do so, since otherwise the principle of equal treatment would be infringed.

Consequently, in relation to an internal directive adopted by a Union agency with regard to the renewal of temporary staff contracts, a breach of the duty to notify a decision not to renew within the period laid down by the directive constitutes an administrative fault capable of giving rise to compensation. However, a procedural irregularity such as this may lead to the annulment of the contested decision only if it is shown that it could have had an influence on the content of the decision.

(see paras 43-44, 46-47, 78)

See:

9 July 1997, T‑92/96 Monaco v Parliament, para. 46

30 January 2013, F 87/11 Wahlström v Frontex, paras 56 and 58

2.      An institution infringes Article 26 of the Staff Regulations and an official’s right to a fair hearing where it adopts a decision not to renew his contract without having previously communicated to him the assessments of his ability which justify the adoption of that decision. In that regard, the mere fact that the official concerned knew of these assessments, even if established, cannot be regarded as sufficient evidence that he had had the opportunity effectively to defend his interests prior to the adoption of the decision adversely affecting him. In order for the observance of his right to a fair hearing to be ensured, the institution must still demonstrate, by any means, that it had previously enabled the official concerned to understand that the assessments in question, which were not communicated to him before being placed on his personal file, were such as to justify the decision adversely affecting him. Failing that, the communication required by Article 26 of the Staff Regulations cannot be deemed to have taken place.

(see para. 60)

See:

5 October 2009, T‑40/07 P and T‑62/07 P de Brito Sequeira Carvalho v Commission and Commission v de Brito Sequeira Carvalho, para. 94

3.      Under the second sentence of Article 91(1) of the Staff Regulations, the Tribunal has, in disputes of a financial character, unlimited jurisdiction, pursuant to which it has the power, if need be, of its own motion to order the defendant to pay compensation for the damage caused by the defendant’s wrongful act and, in such a case, taking account of all of the circumstances of the case, to assess the damage suffered ex aequo et bono.

An action by which an official seeks annulment of a decision affecting his position under the Staff Regulations may give rise to a dispute of a financial character within the meaning of Article 91(1) of the Staff Regulations.

In particular, where a former member of the temporary staff seeks judicial review by the Courts of the European Union of the legality of the decision not to renew his contract, it must be construed, a fortiori, that his action gives rise to a dispute of a financial character. The decision not to renew the contract has a direct effect on the continuity of the person concerned in his position as a member of the temporary staff within the institution concerned, and therefore on his remuneration and his pecuniary rights.

(see paras 70-71, 73)

See:

20 May 2010, C‑58/08 P Gogos v Commission, paras 44 and 46

4.      In accordance with Article 64 of the Staff Regulations and Article 20 of the Conditions of Employment of other Servants, a weighting is applied to the remuneration of officials and members of the temporary staff, determined by reference to living conditions at their place of employment, to ensure that they have equal purchasing power irrespective of that place of employment. The application of a weighting cannot, therefore, be taken into account for the purposes of comparing the level of remuneration received by those members of staff and officials.

(see para. 79)

See:

10 July 1997, T‑81/96 Apostolidis and Others v Commission, para. 3