ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)

23 October 2012

Case F‑61/11

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 — Temporary staff — Procedure relating to the renewal of a temporary staff contract — Communication to the staff member of the negative opinion of the reporting officer as regards renewal — Act adversely affecting an official — None — Application for annulment of unfavourable comments on performance in annual appraisal reports — Action manifestly inadmissible)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which the applicant seeks, essentially, annulment, first, of the ‘decision’ of 24 January 2011, of which the applicant was informed during an oral interview with his reporting officer, an interview in the course of which that reporting officer indicated to him that he did not intend to propose the renewal of his contract, second, of part of his appraisal report for the period from 1 August 2006 to 31 December 2008, drawn up in 2009, and, third, of part of his appraisal report for the period from 1 January to 31 December 2009, drawn up in 2010.

Held: The action is dismissed as manifestly inadmissible. The applicant is to bear his own costs and the costs incurred by Frontex.

Summary

1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Clear and precise presentation of the pleas in law relied on — Lack of clarity and precision — Inadmissibility

(Statute of the Court of Justice, Arts 19, third para., 21, first para., and Annex I, Art. 7(1) and (3); Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e))

2.      Actions brought by officials — Act adversely affecting an official — Definition — Preparatory act — Letter informing staff member of the negative opinion of the reporting officer as regards renewal of his contract — Not included

(Staff Regulations, Arts 90 and 91)

1.      Pursuant to Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal, the application must state the pleas in law and the arguments of fact and law relied on. Those particulars must be sufficiently clear and precise to enable the defendant to prepare his defence and to enable the Tribunal to give judgment in the action without having to seek further information, if appropriate. In order to guarantee legal certainty and sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself.

That is all the more true since, according to Article 7(3) of Annex I to the Statute of the Court of Justice, the written stage of the procedure before the Civil Service Tribunal is to comprise, in principle, a single exchange of written pleadings, unless the Tribunal decides otherwise. That particular feature of the procedure before the Civil Service Tribunal explains why, contrary to what is provided for in proceedings before the Court of Justice or the General Court, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice, the pleas in law and the arguments in the application may not be in summary form. Such flexibility would have the practical effect of rendering largely ineffective the special, and later, rule set out in Annex I to the Statute of the Court of Justice.

The third paragraph of Article 19 of the Statute of the Court of Justice, applicable to proceedings before the Civil Service Tribunal by virtue of Article 7(1) of Annex I to the Statute, provides that the parties, other than the Member States, the institutions of the European Union, the States which are parties to the Agreement on the European Economic Area and the EFTA Surveillance Authority, which is covered by that Agreement, must be represented by a lawyer. The main role of that lawyer, as a legal representative, is to ensure that the heads of claim of the application are based on sufficiently intelligible and coherent arguments, in view of the fact that the written procedure before the Civil Service Tribunal comprises, in principle, only one exchange of written pleadings.

Since the heads of claim in the application are only stated generally and are not supported in any way by arguments, contrary to the rule laid down in Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal, they must be dismissed as manifestly inadmissible.

(see paras 30-34)

See:

15 February 2011, F‑76/09 AH v Commission, paras 29 and 31

2.      The admissibility of an application for annulment, which has its origin in the employment relationship which links the staff member with his institution, must be examined in the light of the requirements in Articles 90 and 91 of the Staff Regulations. In this regard, for any action for annulment brought by an official against the institution by which he is employed to be admissible, it is a necessary condition that there be an act adversely affecting him within the meaning of Article 90(2) and Article 91(1) of the Staff Regulations. For the purposes of Article 90(2) of the Staff Regulations, only those acts or measures which have binding legal effects such as to affect an official’s interests by bringing about a distinct change in his legal position are acts adversely affecting officials. Such acts must have as their source the authority empowered to conclude contracts of employment and be in the nature of a decision. In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is generally open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision. As regards staff cases, acts preparatory to a final decision do not adversely affect the applicant and therefore can only be contested incidentally in an action against acts capable of being annulled. Although certain purely preparatory measures may adversely affect an official in so far as they can influence the content of a subsequent act open to review, those measures cannot be the subject of an independent action and must be challenged in support of an action directed against that act.

Accordingly, neither a negative opinion of the reporting officer as regards renewal of a contract of a Frontex staff member nor a letter from the Executive Director of Frontex rejecting the staff member’s complaint against that negative opinion constitute acts adversely affecting the applicant.

(see paras 40-43, 50, 60, 62-63)

See:

3 April 1990, T‑135/89 Pfloeschner v Commission, para 11; 25 October 1996, T‑26/96 Lopes v Court of Justice, para.19 and the case-law cited; 18 December 2003, T‑215/02 Gómez-Reino v Commission, para. 47; 29 June 2004, T‑188/03 Hivonnet v Council, para 16; 16 March 2009, T‑156/08 P R v Commission, para. 49