JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)

8 July 2015

Case F‑34/14

DP

v

Agency for the Cooperation of Energy Regulators (ACER)

(Civil service — ACER staff — Member of the contract staff — Non-renewal of a contract — Action for annulment — Admissibility of the action — Plea of illegality of Article 6(2) of ACER’s GIP having regard to Article 85(1) of the CEOS — Action for damages — Notice period — Non-material harm — Damages)

Application:      under Article 270 TFEU, in which DP seeks, first, the annulment of the decision of 20 December 2013 by which the Director of the Agency for the Cooperation of Energy Regulators (ACER) refused to renew her contract and, secondly, that ACER be ordered to pay her damages of EUR 10 000 in respect of the non-material harm she allegedly suffered.

Held:      The decision of 20 December 2013 by which the Director of the Agency for the Cooperation of Energy Regulators refused to renew DP’s contract is annulled. The Agency for the Cooperation of Energy Regulators is ordered to pay DP the sum of EUR 7 000. The Agency for the Cooperation of Energy Regulators is to bear its own costs and is ordered to pay the costs incurred by DP.

Summary

1.      Actions brought by officials — Prior administrative complaint — Concept — Classification a matter for the Tribunal

(Staff Regulations, Art. 90(2))

2.      Officials — Conditions of Employment of Other Servants — Auxiliary member of the contract staff — Duration of contract — Institution’s discretion — Restriction under an internal decision which is general in scope — Lawfulness — Limits

(Conditions of Employment of Other Servants, Art. 85(1))

3.      Officials — Staff Regulations — General implementing provisions — Powers of the institutions — Limits

(Staff Regulations, Art. 110)

1.      The precise legal classification of a letter or note is a matter for the Tribunal alone and not for the parties. A letter from an official which does not expressly request the withdrawal of the decision in question but is clearly intended to challenge a decision adversely affecting him constitutes a complaint within the meaning of Article 90(2) of the Staff Regulations. In that respect, the content of the act takes precedence over its form.

(see paras 28, 29)

See:

Judgment in Politi v European Training Foundation, C‑154/99 P, EU:C:2000:354, para. 16

Judgment in Mendes v Commission, F‑125/11, EU:F:2013:35, para. 34 and the case-law cited therein

2.      Although Article 85(1) of the Conditions of Employment of Other Servants provides for the possibility of a second renewal of contract, this is neither a right conferred on the member of staff concerned nor a guarantee of any continuity of employment, but a possibility subject to the discretion of the authority empowered to conclude contracts of employment. The institutions enjoy a wide discretion to organise their departments to suit the responsibilities entrusted to them and to assign their staff having regard to those responsibilities, provided, however, that that assignment is in the interests of the service.

However, Article 6(2) of the Decision of the Administrative Board of the Agency for the Cooperation of Energy Regulators on the Adoption of General Implementing Provisions on the Procedures Governing the Engagement and the Use of Contract Staff at ACER makes the possibility of granting a second renewal of a contract for an indefinite period subject to the prerequisite that the combined duration of the initial contract and its first renewal must be at least five years. Where that prerequisite is not satisfied, any possibility of renewal, on request or even at the institution’s own motion, is mandatorily excluded.

Where an institution or an agency is authorised to lay down general implementing provisions intended to supplement or implement hierarchically superior and binding provisions of the Staff Regulations or the Conditions of Employment of Other Servants, the competent authority may neither act contra legem, in particular by adopting provisions whose application would be contrary to the aims of the provisions of the Staff Regulations or would render them entirely ineffective, nor fail to comply with general legal principles such as the principle of sound administration, the principle of equal treatment and the principle of the protection of legitimate expectations.

Thus, Article 6(2) of the Decision restricts the scope of Article 85(1) of the Conditions of Employment of Other Servants in so far as it introduces a supplementary condition for the renewal of a contract as a member of the contract staff within the meaning of Article 3a of the Conditions of Employment which is not provided for in the Conditions of Employment and which hinders the exercise of the discretion conferred on the administration, without such a restriction being objectively justifiable in the interests of the service. An internal decision of an agency which is general in scope, such as a decision on general implementing provisions, cannot lawfully restrict the scope of an explicit rule laid down in the Staff Regulations or the Conditions of Employment of Other Servants, unless it has been stipulated that this is expressly authorised.

(see paras 51-53, 56)

See:

Judgments in Commission v Petrilli, T‑143/09 P, EU:T:2010:531, paras 31 and 34 to 36 and the case-law cited therein, and Commission v Macchia, T‑368/12 P, EU:T:2014:266, paras 49 and 60

3.      The general implementing rules adopted under the first paragraph of Article 110 of the Staff Regulations may lay down criteria capable of guiding the administration in the exercise of its discretionary power or of explaining more fully the scope of provisions of the Staff Regulations which are not wholly clear. However, they cannot lawfully, by way of explaining more fully a clear term of the Staff Regulations, reduce the scope of those regulations or of the Conditions of Employment of Other Servants or lay down rules which derogate from hierarchically superior provisions, such as the provisions of the Staff Regulations or the Conditions of Employment of Other Servants or general principles of law.

(see para. 54)

See:

Judgments in Brems v Council, T‑75/89, EU:T:1990:88, para. 29 and the case-law cited therein, and Ianniello v Commission, T‑308/04, EU:T:2007:347, para. 38 and the case-law cited therein