Language of document : ECLI:EU:F:2013:155


(Third Chamber)

23 October 2013

Case F‑93/12

Luigi D’Agostino


European Commission

(Civil service — Member of the contract staff — Article 3a of the CEOS — Non-renewal of a contract — Duty to have regard for the interests of officials — Interests of the service — Full and detailed examination within all departments of the possibility of employment corresponding to the tasks envisaged in the contract)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr D’Agostino seeks, in essence, first, annulment of the decision of the European Commission of 1 December 2011 not to renew his contract as a member of the contract staff and compensation for the damage to his career, for the non-material damage and for the damage to his health resulting therefrom and, secondly, compensation for the non-material damage caused him by the unlawful nature of his staff report for 2010.

Held:      The European Commission’s decision of 1 December 2011 not to renew Mr D’Agostino’s contract is annulled. The action is dismissed as to the remainder. The European Commission is to bear its own costs and to pay one third of the costs incurred by Mr D’Agostino. Mr D’Agostino is to bear two thirds of his own costs.


1.      Actions brought by officials — Actions — Time-limits — Successive complaints

(Staff Regulations, Arts 90(2) and 91(3))

2.      Officials — Obligation of administration to provide assistance — Scope — Perpetuation of a staff member’s contractual situation — Not included

(Staff Regulations, Arts 12a and 24; Conditions of Employment of Other Servants, Art. 87)

3.      Officials — Contract staff — Non-renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the interests of officials — Taking into consideration the interests of the staff member concerned — Judicial review — Limits

(Staff Regulations, Art. 24; Conditions of Employment of Other Servants, Art. 11)

4.      Actions brought by officials — Judgment annulling a measure — Effects — Annulment of a decision not to renew a temporary contract — Possibility for the administration to adopt a new decision in accordance with the judgment — Rejection of the claim for compensation for material damage resulting from the annulled decision

(Staff Regulations, Arts 90 and 91)

1.      Two successive complaints lodged against the same decision within the time-limit laid down in the Staff Regulations are both admissible and capable of causing the time for lodging an appeal referred to by Articles 90 and 91 of those regulations to start to run. In that situation, the date to be used for calculating the time-limit for appeal is the date of receipt of the decision by which the administration has adopted its position on all of the arguments presented by the applicant within the time-limit for lodging a complaint. If the applicant has lodged, within the prescribed time-limit, a second complaint with the same scope as the first, in particular in that it does not contain any new request, new claim or new evidence, the decision rejecting that second complaint must be regarded as a purely confirmatory measure confirming the rejection of the first complaint, so that it is from the latter rejection that the time-limit for appeal starts to run. However, where the second complaint contains new factors compared with the first complaint, the decision rejecting the second complaint must be regarded as a new decision adopted, following reconsideration of the decision rejecting the first complaint, in the light of the second complaint.

(see paras 29-30)


8 November 2000, T‑44/97 Ghignone and Others v Council, paras 39 and 41; 11 December 2007, T‑66/05 Sack v Commission, para. 41

11 December 2008, F‑58/07 Collotte v Commission, para. 32

2.      The provisions of Article 12a of the Staff Regulations prohibiting any form of psychological harassment, applicable to contract staff under Article 87 of the Conditions of Employment of Other Servants, do not have the effect of preventing an institution from terminating a contractual relationship, for a legitimate reason related to the interests of the service and unrelated to any harassment, solely on the ground that such a decision not to continue the employment relationship is liable to harm the interests of the staff member, in particular financially or from a psychological point of view. Similarly, although contract staff may rely on the provisions of Article 24 in order to seek protection by the institution for which they work from harassment to which they are subject, they cannot usefully rely on it when seeking, by way of assistance, the perpetuation of their contractual situation, since, in any event, that article was not designed for such a purpose.

(see para. 52)


5 June 2012, F‑71/10 Cantisani v Commission, para. 78 and the case-law cited

3.       The duty to have regard to the interests of officials means, in particular, that when the competent authority takes a decision concerning the situation of an official or other staff member, even in the exercise of a broad discretion, it should take into consideration all the factors which may affect its decision; in so doing it must take into account not only the interests of the service but also those of the official or staff member concerned.

In that assessment of the interests of the service, although it is not for the European Union judicature to review the choice of the staff policy which an institution seeks to pursue in order to carry out successfully the tasks assigned to it, it may legitimately, when it has before it a claim for annulment of a decision not to renew a contract staff contract, seek to satisfy itself that the reasons given by the administration are not such as to call into question the basic criteria and conditions laid down by the legislature in the Staff Regulations and the Conditions of Employment of Other Servants aimed, in particular, at ensuring that contract staff have the opportunity to benefit, where appropriate and in due course, from a measure of continuity of employment.

(see para. 56)


28 May 1980, 33/79 and 75/79 Kuhner v Commission, para. 22; 29 October 1981, 125/80 Arning v Commission, para. 19

6 July 1999, T‑112/96 and T‑115/96 Séché v Commission, paras 147 to 149; 2 March 2004, T‑14/03 Di Marzio v Commission, paras 99 and 100

13 June 2012, F‑63/11 Macchia v Commission, para. 60, on appeal before the General Court, Case T‑368/12 P

4.      The Civil Service Tribunal cannot order the defendant institution to pay compensation for the material damage which the applicant suffered because of the non-renewal of his contract where the contested decision is annulled on the ground that the authority empowered to conclude contracts of employment did not undertake, in the light of its duty to have regard for the interests of officials, a full and detailed examination of the facts in the light of the interests of the service. In that context, it is, in any event, still possible that that authority might consider that it is able once again to adopt a decision not to renew the applicant’s contract after conducting a full and detailed review of the applicant’s employment situation in the light of the interests of the service and of the applicant’s professional abilities.

(see paras 77-79)