JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
4 June 2009 (*)
(Civil service – Europol staff – Recruitment – Selection procedure – Conditions of recruitment – Seconded national expert – Article 6 of the Staff Regulations applicable to Europol employees – Article 2(4) of the Decision of the Director of Europol of 8 December 2006)
In Case F‑11/08,
ACTION under Article 40(3) of the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention) and Article 93(1) of the Staff Regulations applicable to Europol employees,
Jörg Mölling, national expert seconded to the European Police Office, residing in The Hague (Netherlands), represented initially by P. de Casparis, lawyer, and subsequently by P. de Casparis, N.D. Dane and W.J. Dammingh, lawyers,
applicant,
v
European Police Office (Europol), represented by D. Neumann and D. El Khoury, acting as Agents, assisted by B. Wägenbaur and R. Van der Hout, lawyers,
defendant,
THE TRIBUNAL (Second Chamber),
composed of S. Van Raepenbusch, President, I. Boruta and H. Kanninen (Rapporteur), Judges,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 9 September 2008,
gives the following
Judgment
1 By application received at the Tribunal Registry by electronic means on 22 January 2008 (the original being lodged on 25 January 2008), Mr Mölling seeks annulment of Europol’s decision of 10 October 2007 refusing to admit him to the selection procedure organised for the purpose of filling, within Europol, a post of first officer with the Drugs Unit.
Legal context
2 Article 1(1) of the Staff Regulations applicable to Europol employees, in the version applicable to the present case (‘the Staff Regulations’), provides:
‘[The] Staff Regulations shall apply to all employees engaged under contract by Europol. Such employees shall be:
– Europol staff, consisting of staff engaged only from the competent authorities as mentioned in Article 2(4) of the … Convention [based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office], and staff who may be engaged either from these authorities or from outside these authorities;
– local staff, where they are explicitly mentioned in [the] Staff Regulations.’
3 Article 2(1) of the Staff Regulations provides:
‘For the purposes of [the] Staff Regulations, “Europol staff” means staff engaged to fill a post which is included in the list of posts in Appendix 1, with the exception of posts marked as local staff.
For each of these posts it shall be established which can be filled only by staff engaged from the competent authorities as mentioned in Article 2(4) of the … Convention [based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office], and which posts can be filled by other staff as well.
Staff recruited to a post which can be filled only by staff engaged from the competent authorities, may be offered a temporary contract for that post only, in accordance with Article 6.’
4 Appendix 1 to the Staff Regulations lists Europol posts in paragraph 1, which provides that, ‘[s]ubject to paragraph 3, the following posts shall in particular be Europol posts: ...’. The last subparagraph of paragraph 1 of Appendix 1 states that ‘[t]his list [of Europol posts] can be modified by unanimous decision of the Management Board’.
5 Under Article 6 of the Staff Regulations:
‘All Europol staff, whether recruited to a post which can be filled only by staff engaged from the competent authorities referred to in Article 2(4) of the … Convention [based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office] or whether recruited to a post which is not subject to that restriction, shall initially be engaged for a fixed period of between one and five years.
First contracts may be renewed. The total length of the fixed-term contracts, including any periods of renewal, shall not be more than nine years.
Only staff recruited to a post not restricted to staff engaged from the competent authorities referred to in Article 2(4) of the … Convention [based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office] may be engaged for an indefinite period after serving two contracts for a fixed period consistently to a highly satisfactory standard for a minimum period of service of six years.
…’
6 Article 2(4) of the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office of 26 July 1995 (OJ 1995 C 316, p. 2, ‘the Europol Convention’) defines the competent authorities to which, in particular, Article 6 of the Staff Regulations refers as follows:
‘For the purposes of this Convention, “competent authorities” means all public bodies existing in the Member States which are responsible under national law for preventing and combating criminal offences.’
7 Article 24, in Chapter 3 of Title II of the Staff Regulations, headed ‘Conditions of engagement’, is worded as follows:
‘1. Engagement of Europol staff shall be directed to securing for the institution the services of persons of the highest standard of ability, efficiency and integrity. In selecting Europol staff, in addition to having regard to personal suitability and professional qualifications, account shall be taken of the need to ensure the adequate representation of nationals of all Member States and of the official languages of the European Union. Europol is committed to a policy of equal opportunity.
2. A member of the Europol staff may be engaged only in accordance with Article 2(1), and on condition that:
(a) he is a national of one of the Member States of the European Union, and enjoys his full rights as a citizen;
(b) he has fulfilled any obligations imposed on him by the laws concerning military service;
(c) he produces the appropriate character references as to his suitability for the performance of his duties;
(d) he is physically fit to perform his duties, and
(e) he produces evidence of a thorough knowledge of one of the official languages of the European Union and of a satisfactory knowledge of another such language to the extent necessary for the performance of his duties.
…
4. The selection procedures to be followed in engaging Europol staff shall be as laid down in Appendix 2 to [the] Staff Regulations.’
8 Under the first paragraph of Article 5 of Appendix 2 to the Staff Regulations, ‘[o]n the basis of qualifications, experience, the profile sought, and any pre‑selection as provided for in Article 24 of the Staff Regulations, the Selection Board will make an initial selection from the applications received’.
9 Recital 6 in the preamble to the Decision of the Director of Europol of 8 December 2006 on the General Policy implementing Article 6 of the Staff Regulations (‘the Decision of 8 December 2006’) is worded as follows:
‘The reason for prescribing a maximum period of service for all Europol staff on bold posts [which can be filled only by staff engaged from the competent national authorities referred to in Article 2(4) of the Europol Convention] under two fixed‑term contracts is that the Member States want a rotation of such staff members who should subsequently be re-integrated into the service of their competent national authority (the rotation principle) …’
10 Recital 15 in the preamble to the Decision of 8 December 2006 states that, ‘[b]ased on a reasonable interpretation of Article 6 and Appendix 2 of the Staff Regulations, Europol is not prevented from considering a previous staff member as eligible to apply for a new post following a period of absence which ensures that all candidates for a particular post, internal or external, are in an equal position and that no candidate may have influenced a forthcoming recruitment campaign’.
11 Article 1 of the Decision of 8 December 2006 defines certain terms used in that decision as follows:
‘[point 1] “Europol Post”: Any post that is included or is intended to be included in the list of Europol posts set out in Appendix 1 of the Staff Regulations, with the exception of the Director, the Deputy Directors and local staff as provided for by Articles 98-100 of the Staff Regulations;
…
[point 6] “Competent [National] Authority”: In accordance with Article 2(4) of the Europol Convention, all public bodies existing in the Member States which are responsible under national law for preventing and combating criminal offences;
[point 7] “Bold Post”: Any Europol post which can be filled only by staff engaged from a Competent Authority;
[point 8] “Non-bold Post”: Any Europol post which can be filled by staff that do not need to be engaged from a Competent Authority.’
12 Article 2.3 of the Decision of 8 December 2006 provides that’[w]ithout prejudice to Article 2.4 below, only one First Contract shall be entered into with any individual’.
13 Under Article 2.4 of the Decision of 8 December 2006, ‘[a]fter a period of 18 months during which a former member of staff has been detached from any Europol post, and following a new selection procedure, any new Employment Contract shall be deemed to be a First Contract’.
14 Article 40(3) of the Europol Convention states that ‘[t]he provisions on appeals referred to in the rules relating to the conditions of employment applicable to temporary and auxiliary staff of the European Communities shall apply, mutatis mutandis, to Europol staff’. Consequently, the provisions of Articles 92 and 93 of the Staff Regulations correspond to those contained in Articles 90 and 91 of the Staff Regulations of Officials of the European Communities which, pursuant to Article 117 of the Conditions of Employment of Other Servants of the European Communities, are to apply by analogy to temporary staff and auxiliary staff of the European Communities.
Facts
15 The applicant, a German police officer, entered the service of Europol on 1 September 1999 as a first officer with the Drugs Unit. His contract, concluded under Article 6, first indent, of the Europol Staff Regulations in the version in force prior to the adoption of the Council Decision of 4 December 2006 amending Europol’s Staff Regulations (OJ 2006 C 311, p. 1), ended on 31 August 2005.
16 On that date, the applicant re‑entered the service of the German police, where he had already worked before 1 September 1999 and which seconded him to Europol as a seconded expert from 1 September 2005. That secondment, which was originally due to end on 28 February 2007, was extended until 28 February 2008 by an addendum to the applicant’s secondment contract. According to the applicant, Europol informed him from the start of the period of secondment that, when that secondment ended, he could ‘come back to Europol as an employee’.
17 On 13 July 2007, Europol published a vacancy notice for the post of first officer with the Drugs Unit (‘the post at issue’). Under point 3.1 of the vacancy notice, headed ‘General requirements (Article 24 of Staff Regulation)’, the holder of the post at issue should inter alia ‘be [a] member of the national competent authorities of one of the Member States of the European Union and enjoy full rights as [a] citizen (bold posts)’.
18 The applicant submitted his candidature for the post at issue.
19 The selection board provided for in Appendix 2 to the Staff Regulations made an initial selection of candidates, classifying the applicant in first position.
20 On 10 October 2007, the head of the Drugs Unit of Europol informed the applicant verbally that his candidature was not admissible on the ground that he did not satisfy the requirements of Article 2.4 of the Decision of 8 December 2006. According to the head of the Drugs Unit, at the end of his contract concluded with Europol for the period from 1 September 1999 to 31 August 2005, the applicant had not been detached from any Europol post for at least 18 months, as required by that provision.
21 On 11 October 2007, the applicant submitted a complaint against Europol’s decision of 10 October 2007, disputing Europol’s interpretation of Article 2.4. of the Decision of 8 December 2006.
22 By decision of 23 October 2007, Europol rejected the complaint.
Procedure and forms of order sought by the parties
23 By way of measures of organisation of procedure, the Tribunal asked the parties, pursuant to Article 55(2)(d) of the Rules of Procedure, to produce certain documents.
24 In response to the request for the production of documents, the applicant produced, inter alia, a copy of the contract of employment concluded with Europol for the period from 1 September 1999 to 31 August 2005. For its part, Europol produced copies of the vacancy notice concerning the post at issue, of the documents relating to two other candidates in the selection procedure for that post, who had been named by the applicant in the context of the plea in law alleging breach of the ‘principle of equality’, and of the Job Description for the Seconded Expert to the Drugs Unit, drafted by the applicant and approved by the head of the Drugs Unit of Europol.
25 The applicant claims that the Tribunal should:
– annul Europol’s decision of 10 October 2007 refusing to admit him to the selection procedure for the post at issue;
– annul the decision rejecting the complaint of 23 October 2007;
– order Europol to pay the costs, including lawyers’ fees.
26 Europol contends that the Tribunal should:
– dismiss the action;
– order the applicant to pay the costs of the proceedings.
Subject‑matter of the action
27 In addition to annulment of Europol’s decision of 10 October 2007 refusing to admit him to the selection procedure for the post at issue, the applicant seeks annulment of the decision of 23 October 2007 rejecting his complaint. In this regard, it should be pointed out that claims for annulment formally directed against the decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (see, to that effect, Case 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8; Case T‑309/03 Camós Grau v Commission [2006] ECR II‑1173, paragraph 43; and Case F‑103/07 Duta v Court of Justice [2008] ECR‑SC I-A-0000 and II‑0000, paragraph 23, which is the subject of an appeal before the Court of First Instance, Case T-475/08 P).
28 The applicant directed his complaint against Europol’s decision of 10 October 2007 not to admit him to the selection procedure for the post at issue. Consequently, the applicant’s action is to be taken as being directed against that decision.
Law
29 In support of his action, the applicant puts forward two pleas in law alleging, firstly, misapplication of Article 2.4 of the Decision of 8 December 2006 and breach of the principle of legal certainty and, secondly, breach of the principle of equal treatment.
30 It is necessary to examine, in the first place, the plea alleging misapplication of Article 2.4 of the Decision of 8 December 2006 and breach of the principle of legal certainty.
Arguments of the parties
31 The applicant first draws attention to the content of Article 2.4 of the Decision of 8 December 2006, under which, after a period of 18 months during which a former member of Europol’s staff has been detached from any Europol post, and following a new selection procedure, any employment contract will be deemed to be a first contract.
32 The applicant then points out that, following his contract with Europol, which ended on 31 August 2005, he worked for Europol as a ‘seconded expert’. However, that post is not included in Appendix 1 to the Staff Regulations. He should therefore not have been excluded from the selection procedure for the post at issue on the ground that he did not satisfy the conditions laid down in Article 2.4 of the Decision of 8 December 2006.
33 The applicant adds that the distinction drawn by Europol between the terms ‘Europol post’ and ‘Europol Post’, sometimes written with a lower‑case and sometimes with an upper‑case initial letter in the word ‘post’, does not find any support in the Decision of 8 December 2006. Assuming that a notional distinction exists, it should be made clear in that decision. The Staff Regulations, like the Decision of 8 December 2006, use those two terms without distinction.
34 Finally, the applicant states that he worked for Europol for six years, whereas the period at the end of which the ‘rotation’ of Europol staff takes place has in the meantime been fixed at nine years.
35 Europol refers, firstly, to the rationale underlying Article 2.4 of the Decision of 8 December 2006. In Europol’s view, Article 6 of the Staff Regulations governs the contracts of staff filling bold posts, that is to say, posts reserved for staff coming from national police and customs authorities and returning, at the end of their contract concluded with Europol, to their respective authorities. Under Article 6 of the Staff Regulations, those contracts are therefore limited in time, which explains why Article 2.4 of the Decision of 8 December 2006 provides that a person who has been a member of staff of Europol cannot conclude a further contract with Europol until a ‘period of absence’ of 18 months has expired.
36 Secondly, Europol contends that the plea in law put forward by the applicant is unfounded, in the light both of the wording of Article 2.4 of the Decision of 8 December 2006 and of its purpose.
37 First, Article 2.4 of the Decision of 8 December 2006 lays down two conditions which must both be satisfied. The applicant satisfies the first condition, namely, of having to have been a member of staff of Europol. On the other hand, the applicant was not ‘detached from any Europol post’ for 18 months. In this regard, Europol maintains that, in order to be ‘detached from any Europol post’ within the meaning of Article 2.4 of the Decision of 8 December 2006, no relationship in law or in fact must exist between Europol and the former member of its staff.
38 Next, Europol contends that, according to recital 6 in the preamble to the Decision of 8 December 2006, the Member States intend that members of the Europol staff filling bold posts should work for Europol for only a limited period, so as to allow their ‘rotation’ and therefore their re-integration into their original national authorities. In Europol’s view, the phrase ‘detached from any Europol post’, used in Article 2.4 of the Decision of 8 December 2006, must be interpreted accordingly.
39 Moreover, according to recital 15 in the preamble to the Decision of 8 December 2006, a previous staff member may apply for a new post only following a ‘period of absence’, which serves to ensure equality between all candidates.
40 In this case, on the day after the end of his six‑year contract with Europol, the applicant was seconded by his State to Europol as a ‘seconded expert’. In that capacity, he continued to work for and under the supervision of Europol.
41 Finally, Europol claims that it is for the applicant to prove that he satisfies all the requirements of Article 2.4 of the Decision of 8 December 2006. However, the applicant confines himself, in the main, to contesting the distinction between the terms ‘Europol post’ and ‘Europol Post’, sometimes written with a lower‑case ‘p’ and sometimes with an upper‑case ‘P’ in the word ‘post’.
Findings of the Tribunal
42 The first subparagraph of Article 2(1) of the Staff Regulations provides, first, that ‘[f]or the purposes of [the] Staff Regulations, “Europol staff” means staff engaged to fill a post which is included in the list of posts in Appendix 1, with the exception of posts marked as local staff’.
43 The second subparagraph of Article 2(1) of the Staff Regulations then draws a distinction between ‘[posts] which can be filled only by staff engaged from the competent authorities as mentioned in Article 2(4) of the Europol Convention, and [posts which] can be filled by other staff as well’.
44 Finally, under the third subparagraph of Article 2(1) of the Staff Regulations, staff recruited to a post which can be filled only by staff engaged from the competent authorities referred to in Article 2(4) of the Europol Convention may be offered a temporary contract for that post only. That provision refers to Article 6 of the Staff Regulations, which lays down a maximum length of employment per fixed‑term contract. That length, nine years, was six years before the amendment of Article 6 by the Council Decision of 4 December 2006 amending Europol’s Staff Regulations.
45 In this case, the post filled by the applicant from 1 September 1999 to 31 August 2005 was subject to the temporary restriction laid down in Article 2(1) of the Staff Regulations, which resulted in the applicant leaving his post on 31 August 2005.
46 However, it must be noted that the rule laying down a maximum length of employment contract for the persons referred to in Article 2(1) of the Staff Regulations does not deprive Europol of the possibility of concluding further employment contracts with those persons after they have been detached from any Europol post for 18 months. Article 2.4 of the Decision of 8 December 2006 provides that, ‘[a]fter a period of 18 months during which a former member of staff has been detached from any Europol post, and following a new selection procedure, any new Employment Contract shall be deemed to be a First Contract’.
47 In this case, the question at issue is whether the post filled by the applicant from 1 September 2005, originally intended to be for a period of 18 months then extended until 28 February 2008, was a post which, under Article 2.4 of the Decision of 8 December 2006, rendered the applicant ineligible for the post at issue.
48 Europol does not maintain that the applicant, as a seconded expert to Europol between 1 September 2005 and 28 February 2008, filled a post mentioned in Appendix 1 to the Staff Regulations. However, Europol does contend that, where it refers to ‘any Europol post’, Article 2.4 of the Decision of 8 December 2006 does not limit Europol posts to those specified in Appendix 1 to the Staff Regulations. To support that argument, Europol had pointed out, in the decision rejecting the complaint submitted by the applicant, that the wording of Article 2.4 of the Decision of 8 December 2006 did not refer to the definition of the term ‘Europol Post’ laid down in Article 1.1 of that decision. In Europol’s view, the fact that the word ‘post’ used in Article 2.4 of the Decision of 8 December 2006 is not written with an upper‑case ‘P’, as in Article 1.1 of that decision, means that the term ‘Europol post’ applies to any post within Europol and not only those referred to in Article 1.1 of the Decision of 8 December 2006.
49 In his application, the applicant disputed that argument adduced by Europol, which did not respond, in its statement of defence, to that objection raised by the applicant. However, in reply to a question put by the Judge‑Rapporteur at the hearing, Europol made it clear that it ultimately stood by its argument concerning the inferences to be drawn from the use of the word ‘post’ with a lower‑case ‘p’ in Article 2.4 of the Decision of 8 December 2006.
50 Europol further contends that the wording of Article 2.4 of the Decision of 8 December 2006 bears out its interpretation of the Article’s provisions, since the text refers to any Europol post (‘detached from any Europol post’), which demonstrates that Article 2.4 requires not only an absence of any relationship in law but also an absence of any relationship in fact between Europol and the former member of its staff.
51 Finally, Europol maintains that its literal interpretation of the provisions of Article 2.4 of the Decision of 8 December 2006 is borne out by the analysis of the purpose of those provisions.
52 It must first be examined whether a textual interpretation of Article 2.4 of the Decision of 8 December 2006 confirms the proper foundation of Europol’s position.
53 With regard, on the one hand, to the question whether, in the term ‘Europol post’, a separate meaning must be conferred on the word ‘post’ depending on whether it is written with an upper‑case ‘P’ or a lower‑case ‘p’, it is important to observe, firstly, that, in Article 1 of the Decision of 8 December 2006, all of the terms which are defined in that article start with an upper‑case letter.
54 Secondly, it is apparent from a reading of the Decision of 8 December 2006 that, in all of its provisions (Article 1.7, Article 1.8, Article 5.5, Article 5.5.1, Article 5.5.2), and not only in Article 2.4, the term ‘Europol post’ is written with a lower‑case ‘p’ in the word ‘post’, whereas, clearly, that term cannot have, in all those provisions, a different meaning from that defined in Article 1.1 of the Decision of 8 December 2006 if the definition of the term ‘Europol Post’, as it appears in that Article, is not to be rendered nugatory. Consequently, the Decision of 8 December 2006 itself does not draw a systematic distinction between the terms ‘Europol Post’ and ‘Europol post’, depending on whether the word ‘post’ is written with an upper‑case ‘P’ or a lower‑case ‘p’.
55 Thirdly, it must be observed that the English‑language version of Appendix 1 to the Staff Regulations uses the word ‘post’ with a lower‑case ‘p’ both in its heading and in the body of the text.
56 Finally, if the author of the Decision of 8 December 2006 had intended to draw a distinction between the terms ‘Europol post’ and ‘Europol Post’, it would have been good legislative drafting to make that clear in the decision, but this was not done.
57 As regards, on the other hand, the argument that the use of the word ‘any’ in the phrase ‘any Europol post’ used in Article 2.4 of the Decision of 8 December 2006 demonstrates that that phrase refers to any type of employment relationship, and not only to the posts referred to in Appendix 1 to the Staff Regulations, that argument cannot be regarded as convincing. The phrase in question could equally be construed as referring to any post within the meaning of the definition of the term ‘Europol Post’ laid down in Article 1.1 of the Decision of 8 December 2006. In this regard, it is important to note that the term ‘Europol Post’ is defined in Article 1.1 of the Decision of 8 December 2006 as ‘any post’ covered by the list in Appendix 1 to the Staff Regulations. Moreover, the provisions of Article 1.7 and 1.8 of the Decision of 8 December 2006 use the phrase ‘any Europol post’ when there is no doubt that those provisions refer only to the posts defined in Article 1.1 of that decision.
58 It follows from all those considerations that, on the basis of the textual interpretation of Article 2.4 of the Decision of 8 December 2006, the term ‘Europol post’ cannot be given a different meaning from that of the term ‘Europol Post’ defined in Article 1.1 of that decision and, therefore, Europol’s contention that the phrase ‘any Europol post’ also refers to posts other than those mentioned in Appendix 1 to the Staff Regulations cannot be upheld..
59 As to the present case, it must be held that, by filling, for the period from 1 September 2005 to 28 February 2008, a post of seconded expert to Europol, which is not included on the list in Appendix 1 to the Staff Regulations, the applicant was ‘detached from any Europol post’ within the meaning of Article 2.4 of the Decision of 8 December 2006.
60 It is common ground that no contract was concluded between the applicant and Europol for the period from 1 September 2005 to 28 February 2008. The secondment of the applicant as an expert to Europol results from an agreement, concluded between Europol and the ‘Polizeipräsident in Berlin’, which specifies the applicant’s status, duties, rights and obligations. In addition, it is important to point out that neither the Staff Regulations nor the texts of the decisions adopted by Europol and communicated by it to the Tribunal include any provisions on seconded experts. It is apparent from those findings that, as a seconded expert, the applicant was a German police officer placed at Europol’s disposal by the German police within the framework of and under the conditions stipulated in the agreement.
61 It still remains to be examined whether the factual circumstances relied on by Europol are capable of invalidating that conclusion.
62 In that connection, it is to be noted that one of the objectives in setting a maximum length of service as laid down in Article 6 of the Staff Regulations is, according to recital 6 in the preamble to the Decision of 8 December 2006, to ensure a ‘rotation’ of staff inasmuch as persons who have served the maximum length of employment at Europol are obliged to re‑enter the service of their national authority.
63 However, in the present case, Europol put before the Tribunal the document ‘Job Description for the Seconded Expert to the Drugs Unit’, dated 19 July 2006, drafted by the applicant and approved by the head of the Drugs Unit of Europol, from which it is apparent that the applicant was to participate actively in the regular work of that unit, that he was also, on certain occasions, to represent Europol and that he was required to deputise for the head of the Drugs Unit in his absence. It is also important to note that the document in question states that ‘[i]n his capacity as Seconded Expert and his special tasking, he supervises and co-ordinates the operational activities in the various Sections of the Drugs Unit, approves and authorises the distribution, to external partners, of operational documents, reports and other products, gives interviews to the media and advises the Head of the Drugs Unit on policy matters[; d]aily meetings between the Head of the Drugs Unit and the Seconded Expert take place’.
64 In addition, Europol maintained at the hearing that the applicant performed exactly the same tasks in his capacity as first officer with the Drugs Unit as in his capacity as seconded expert. No changes of tasks occurred and the applicant remained deputy head of that unit. Europol also pointed out that the applicant did not work in Berlin after the end of his contract on 31 August 2005.
65 Europol went on to explain at the hearing that, when the applicant’s contract ended on 31 August 2005, practical considerations led Europol to continue employing him with a different status.
66 The applicant does not dispute that the document ‘Job Description for the Seconded Expert to the Drugs Unit’ correctly reflects the tasks which were entrusted to him. Nevertheless, the applicant’s representative asserted at the hearing that he did not have ‘the feeling that these were identical activities or tasks [to those which the applicant had performed as first officer]; if that had been the case, [the applicant would] not have found it necessary to draft a new job description’. In addition, the applicant claimed that, as a seconded expert, he would not have been entitled to perform the duties of deputy head of the Drugs Unit, since those duties could be performed only by a member of the staff of Europol.
67 It follows from the examination of the applicant’s legal and factual situation in his post as seconded expert that, although he formally rejoined the German police on 1 December 2005, he in reality continued to perform essentially the same duties as before, with a different status. The applicant has not in fact shown in what respects his work had fundamentally changed as from 1 September 2005.
68 However, it is important to note that Europol itself, on the one hand, required the applicant to leave his post on 31 August 2005 in order to comply with the limit on the length of contracts and periods of renewals, imposed by Article 6 of the Staff Regulations. On the other hand, Europol allowed the applicant to continue to work for it as a seconded expert, which, in reality, served to ensure within Europol a continuity of the functions performed by the applicant, who was able to avoid actually returning to the service of his national authority.
69 In those circumstances, Europol cannot properly rely on the factual circumstances set out in paragraphs 63 to 65 of this judgment in order to defend an interpretation of the provisions of Article 2.4 of the Decision of 8 December 2006 which would go against their clear and unequivocal wording. It is settled case‑law that, in the absence of working documents clearly expressing the intention of the draftsmen of a provision, the Court can base itself only on the scope of the wording as it is and give it a meaning based on a literal and logical interpretation (see, to that effect, Case 15/60 Simon v Court of Justice [1961] ECR 115, at 125, and Case F‑10/06 André v Commission [2006] ECR‑SC I‑A‑1‑183 and II‑A‑1‑755, paragraph 44). Consequently, the interpretation resulting from the actual wording of a provision cannot be replaced by an interpretation based on factual considerations drawn from a particular case.
70 It follows from the foregoing that the plea in law alleging misapplication of Article 2.4 of the Decision of 8 December 2006 must be upheld. Accordingly, without there being any need to examine the other pleas in law put forward by the applicant, Europol’s decision of 10 October 2007 must be annulled.
Costs
71 Under Article 87(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
72 Since Europol has been unsuccessful in its submissions and the applicant has applied for the defendant to be ordered to pay the costs, Europol must be ordered to pay all the costs of the proceedings.
On those grounds,
THE TRIBUNAL (Second Chamber)
hereby:
1. Annuls the decision of the European Police Office (Europol) of 10 October 2007 refusing to admit Mr Mölling to the selection procedure organised for the purpose of filling a post of first officer with the Drugs Unit of Europol;
2. Orders Europol to pay all the costs.
Van Raepenbusch | Boruta | Kanninen |
Delivered in open court in Luxembourg on 4 June 2009.
The text of the present decision and the texts of the decisions of the Courts of the European Union cited in it are available on the internet site www.curia.europa.eu