JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

30 September 2013

Case F‑38/12

BP

v

European Union Agency for Fundamental Rights (FRA)

(Civil service — Staff of the European Union Agency for Fundamental Rights –Member of the contract staff — Non-renewal of a fixed-term contract for an indefinite period — Reassignment to another department until expiry of the contract — Action for annulment — Action for damages)

Application:      under Article 270 TFEU, seeking annulment of the decisions of 27 February 2012 of the Director of the European Union Agency for Fundamental Rights (‘the FRA’ or ‘the Agency’) not to renew BP’s contract as a member of the contract staff for an indefinite period and to reassign her to another department for the last six months of her contract, and an order requiring the FRA to pay compensation for her material and non-material loss.

Held:      The application is dismissed. BP is to bear the entirety of her own costs and is ordered to pay the entirety of the costs incurred by the European Union Agency for Fundamental Rights.

Summary

1.      Actions brought by officials — Contract staff — Pleas in law — Plea based on misuse of power in support of an application challenging a decision not to renew a contract which was taken after the applicant communicated certain information

(Staff Regulations, Art. 22a)

2.      Actions brought by officials — Acts adversely affecting an official — Decision not to renew a contract for an indefinite period — Right of the person concerned to be heard

(Staff Regulations, Arts 90(2) and 91(1); European Union Agency for Fundamental Rights Decision 2009/2013)

3.      Officials — Decision adversely affecting an official — Obligation to state reasons — Scope

(Staff Regulations, Art. 25)

4.      Officials — Organisation of departments — Assignment of staff — Administration’s discretion — Limits — Interests of the service — Compliance with the principle of assignment to an equivalent post

(Staff Regulations, Art. 7(1))

5.      Officials — Organisation of departments — Assignment of staff — Reassignment of an official in the interests of the service on the ground of difficulties in relationships with colleagues — Misapprehension of the interests of the service — None

(Staff Regulations, Art. 7(1))

6.      Judicial proceedings — Application initiating proceedings — Formal requirements — Clear and precise summary of the plea in law relied on — Plea contained in one head of claim — Reliance in connection with another head of claim — Not permissible

(Rules of Procedure of the Civil Service Tribunal, Art. 35(1))

1.      Article 22a(3) of the Regulations provides that an official who has communicated, pursuant to paragraph 1 of that article, information concerning facts which give rise to a presumption of the existence of possible illegal activity or of conduct which may constitute a serious failure to comply with the obligations of officials of the European Union ‘shall not suffer any prejudicial effects on the part of the institution … provided that he acted reasonably and honestly’. Consequently, the fact that a decision that was unfavourable to an official chronologically followed the communication of information from that official made within the context of Article 22a of the Staff Regulations must lead the Tribunal, when hearing an action directed against the decision in question supported by a plea of misuse of powers, to consider that plea particularly carefully. None the less, those provisions do not offer an official who has communicated information concerning facts which give rise to a presumption of the existence of possible illegal activity, pursuant to Article 22a(1) of the Staff Regulations, protection against any decision likely adversely to affect him, but only against decisions adopted as a result of that communication.

(see paras 87-89)

See:

24 February 2010, F‑2/09 Menghi v ENISA, para. 138

2.      Where the contract of service of a member of staff is renewable, a decision not to renew the contract of a member of the temporary or contract staff constitutes a decision which adversely affects the person concerned.

FRA Decision 2009/13, concerning the procedure for the renewal of the employment contract of contract staff, provides for the hearing of the person concerned at two stages. First of all, during a meeting with the head of department and subsequently, by way of the letter of motivation that he sends to the Director of the Agency seven months before the expiry of his contract. In his letter of motivation, the person concerned can express himself and put forward all the reasons militating in favour of a decision that would have been positive for him.

An opinion of the head of department, a copy of which is received by the applicant and concerning which the person concerned wishes to express his point of view, constitutes a preparatory measure for the decision not to renew the contract. As it is not an act adversely affecting the person concerned, within the meaning of Article 90(2) and Article 91(1) of the Regulations, he cannot validly claim the right to make observations regarding its content.

(see paras 103, 106-108)

See:

14 September 2011, T‑236/02 Marcuccio v Commission, para. 133, on appeal to the Court of Justice in Case C‑617/11 P

3.      The obligation to state reasons laid down by the second paragraph of Article 25 of the Regulations, which reiterates the general obligation laid down in Article 296 TFEU, is intended, first, to provide the person concerned with details sufficient to allow him to ascertain whether the measure is well founded and whether it is appropriate to bring proceedings before the Tribunal and, secondly, to enable the Tribunal to review the legality of the measure. The extent of the duty to state reasons must, in each case, be determined not only by taking into consideration the contested decision but also the particular circumstances surrounding its adoption.

The reasons given for a decision are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him. That is the case where the decision was preceded by interviews with the hierarchy which related to the situation in question. Furthermore, a statement of reasons for a decision is sufficient if it refers to a document which is already in the possession of the person concerned and which contains the matters on which the institution based its decision.

(see paras 124-125)

See:

17 May 2006, T‑93/04 Kallianos v Commission, paras 100 and 101

2 July 2009, F‑49/08 Giannini v Commission, para. 117; 30 November 2010, F‑97/09 Taillard v Parliament, para. 33

4.      The institutions enjoy a broad discretion to organise their departments in keeping with the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition, however, that they are assigned in the interests of the service and in conformity with the principle that staff must be assigned to an equivalent post.

The reassignment of an official is not conditional upon consent of that official. If that were the case, it would result in a restriction on the institutions’ freedom to organise their departments and adapt them to changing needs.

(see paras 132-133)

See:

22 January 1998, T‑98/96 Costacurta v Commission, paras 36 and 40 and the case-law cited

5.      The concept of the interests of the service relates to the smooth running of the institution in general and, in particular, to the specific requirements of the post to be filled. The reassignment of an official in order to put an end to an administrative situation which has become intolerable must be regarded as having been taken in the interest of the service. Relationship difficulties, when they cause tensions which are prejudicial to the proper functioning of the service, may justify, precisely in the interest of the service, the reassignment of an official, without it being necessary to determine the identity of the person responsible for the incidents in question or the veracity of the complaints made on both sides.

(see paras 140-142)

See:

18 April 1996, T‑13/95 Kyrpitsis v CES, para. 51; Costacurta v Commission, para. 39 and the case-law cited

5 December 2012, F-88/09 and F-48/10 Z v Court of Justice, para. 123, on appeal to the General Court in Case T‑88/13 P

6.      A complaint which is raised under the wrong head of claim is inadmissible because, on the one hand, it is not for the Tribunal to join together as it sees fit the arguments, complaints and pleas of an application under one or other head of claim and, on the other hand, the way in which that complaint was presented could affect the rights of defence of the Agency.

(see paras 148-149)