JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
7 February 2024 (*)
(Civil service – Members of the temporary staff – Fixed-term contract – Non-renewal of a contract for an indefinite period – Article 266 TFEU – Decision adopted in compliance with a judgment of the General Court – Measures necessary to comply with a judgment delivered in an action for annulment)
In Case T‑563/22,
VP, represented by L. Levi, lawyer,
applicant,
v
European Centre for the Development of Vocational Training (Cedefop), represented by A. Guillerme, T. Bontinck and L. Burguin, lawyers,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia, President, M. Jaeger and L. Madise (Rapporteur), Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure,
further to the hearing on 12 September 2023,
gives the following
Judgment
1 By her action under Article 270 TFEU, the applicant, VP, seeks, first, the annulment of the decision of the Executive Director of the European Centre for the Development of Vocational Training (Cedefop) of 17 December 2021 (‘the contested decision’) and the decision of Cedefop’s Appeals Committee of 17 June 2022 (‘the decision rejecting the complaint’) and, second, compensation of EUR 100 000 for the non-material damage she claims to have suffered.
Background to the dispute
2 The applicant was recruited by Cedefop on 16 November 2007 as a member of the temporary staff to perform the duties of Legal Advisor. Her contract was renewed until 15 November 2017.
3 On 10 March 2017, the applicant submitted to the Director of Cedefop a request for the renewal of her contract under Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable to members of the temporary staff under Article 46 of the Conditions of Employment of Other Servants of the European Union.
4 By decision of 12 May 2017, the Director of Cedefop, in his capacity as the authority empowered to conclude contracts of employment (‘AECCE’), refused that request and informed the applicant that her contract would not be renewed (‘the decision of 12 May 2017’).
5 By decision of 1 December 2017, Cedefop’s Appeals Committee rejected the applicant’s complaint against the decision of 12 May 2017.
6 By judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), the Court annulled the decision of 12 May 2017 (point 1 of the operative part) and the decision of 1 December 2017 rejecting the applicant’s complaint (point 2 of the operative part). In addition, the Court ordered Cedefop to pay EUR 30 000 as compensation for the material damage caused to the applicant (point 3 of the operative part) and EUR 10 000 as compensation for the non-material damage caused to her (point 4 of the operative part). The Court dismissed the action as to the remainder (point 5 of the operative part) and ordered Cedefop to pay the costs (point 6 of the operative part).
7 It is clear from the grounds of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), that the Court found that the decision of 12 May 2017 was vitiated by a manifest error of assessment in so far as the reason given by that decision for that measure was the proposed abolition of Cedefop’s Legal Service. In addition, the Court found that it could not be ruled out that the decision of 12 May 2017 may have been based on a distinct ground relating to the loss of trust in the applicant on the part of the Director of Cedefop. It held that that decision, in so far as it was based on that loss of trust, had been adopted in breach of the right to be heard, the rights of the defence and Article 26 of the Staff Regulations.
8 On 8 January 2021, the applicant invited Cedefop to implement the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), in accordance with Article 266 TFEU. In particular, she asked Cedefop to renew her contract for an indefinite period from 16 November 2017.
9 By letter of 2 March 2021, the Executive Director of Cedefop replied to the applicant, stating that the implementation of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), required only the payment of EUR 40 000 as compensation for the material and non-material damage suffered by the applicant, increased by costs, since the effects of the unlawfulness found by the Court would be reversed by the payment of the compensation ordered.
10 On 28 April 2021, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the decision of 2 March 2021. She again claimed that Cedefop had not complied with points 1 and 2 of the operative part of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613).
11 On 29 July 2021, the Chairman of Cedefop’s Appeals Committee sent the applicant a letter in which he stated that that committee had decided, at its meeting of 16 July 2021, to uphold the applicant's complaint of 28 April 2021 and to ‘annul’ the decision of the Executive Director of Cedefop of 2 March 2021, since the applicant had not had the opportunity to provide comments on that decision.
12 On 7 September 2021, the Executive Director of Cedefop sent the applicant a letter in which he informed her, having reached a fresh decision, further to the decision of the Appeals Committee, that he would not adopt the additional measures requested by the applicant, inter alia in her request of 8 January 2021, since, according to him, the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), had already been implemented in full. In order to observe the applicant’s right to be heard, he invited the applicant to submit her observations on the proposed decision.
13 In response to that letter, the applicant submitted her observations on 15 October 2021.
14 By the contested decision, the Executive Director informed the applicant that, since Cedefop had paid all of the amounts ordered by the Court in its judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), no additional action was necessary to implement that judgment.
15 On 3 March 2022, the applicant submitted a complaint against the contested decision. By the decision rejecting the complaint, Cedefop’s Appeals Committee rejected that complaint.
Forms of order sought
16 The applicant claims that the Court should:
– annul the contested decision, including the ‘connected and inseparable’ decision not to renew her contract for an indefinite period with effect from 16 November 2017;
– annul the decision rejecting the complaint;
– order Cedefop to pay her EUR 100 000 as compensation for the non-material damage that she has suffered;
– order Cedefop to pay the costs.
17 Cedefop contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
The claims for annulment
The subject matter of the claims for annulment
18 First, the applicant is seeking not only the annulment of the contested decision, but also the annulment of a decision, which she describes as ‘connected and inseparable’, not to renew her employment contract for an indefinite period with effect from 16 November 2017. It should nevertheless be pointed out that, in considering, in the contested decision, that the payment of compensation for the damage suffered by the applicant had fully implemented the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), and in finding, therefore, that no further action was required as regards the implementation of that judgment, the Executive Director of Cedefop essentially decided, by that decision, that the applicant’s employment contract should not be renewed. As a result, the alleged ‘connected and inseparable’ decision which the applicant seeks to have annulled is in fact the same as the contested decision.
19 Second, as regards the claim directed against the decision rejecting the complaint, it should be borne in mind that the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the Court the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see, to that effect, judgment of 6 July 2022, MZ v Commission, T‑631/20, EU:T:2022:426, paragraph 20 and the case-law cited).
20 The mere fact that the authority authorised to decide on a complaint has been led, in response to the complaint, to supplement or amend the grounds of the contested decision cannot justify the rejection of that complaint being regarded as an autonomous act adversely affecting the applicant. The statement of grounds for that rejection is deemed to be incorporated in the decision against which that complaint was directed (see, to that effect, judgment of 6 July 2022, VI v Commission, T‑20/21, not published, EU:T:2022:427, paragraph 17 and the case-law cited).
21 In the present case, the decision rejecting the complaint does not, as the applicant acknowledges in her application, contain new elements of law or of fact, but merely confirms the contested decision, in so far as it concludes that the applicant’s employment contract should not be renewed. The scope of the decision rejecting the complaint cannot, therefore, be regarded as different from that of the contested decision.
22 However, it should be pointed out that the decision rejecting the complaint, in response to the arguments advanced by the applicant in her complaint, supplements the reasons for the contested decision in that the refusal to renew the applicant’s contract is also based on considerations relating to the internal operation of Cedefop.
23 It follows from the foregoing that it is necessary to examine the claim for annulment directed against the contested decision, the lawfulness of which is to be reviewed also taking into account the statement of reasons contained in the decision rejecting the complaint (see, to that effect, judgments of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraph 59, and of 15 September 2017, Skareby v EEAS, T‑585/16, EU:T:2017:613, paragraph 23).
The merits of the claim for annulment
24 In her written pleadings, the applicant raised five pleas in law in support of her claim for annulment. The first plea related to the complaint procedure. In response to a question from the Court, the applicant stated, during the hearing, that she was withdrawing that plea. The remaining pleas, which it is appropriate to examine in turn, allege (i) infringement of Article 266 TFEU and a manifest error of assessment; (ii) breach of the duty of care; (iii) failure to observe the principles of the protection of legitimate expectations, equal treatment and non-discrimination; and (iv) misuse of power.
25 As a preliminary point, it should be borne in mind that, in accordance with settled case-law, the possibility of renewing the contract of a member of the temporary staff is merely an option left to the discretion of the competent authority, since the institutions have a wide discretion in the organisation of their departments according to the tasks conferred on them and in the assignment, in view of those tasks, of staff who are made available to them, on condition that that assignment is carried out in the interests of the service (see judgments of 21 May 2014, Commission v Macchia, T‑368/12 P, EU:T:2014:266, paragraph 49 and the case-law cited, and of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 59 and the case-law cited).
26 Those considerations appear to be all the more relevant where a fixed-term contract is replaced by a contract for an indefinite period, which creates a more stable relationship without any time limit between the institution and the staff member concerned (judgment of 26 January 2022, MN v Europol, T‑586/20, not published, EU:T:2022:24, paragraph 34).
27 As regards an application for the annulment of a decision not to renew the contract of a member of the temporary staff, the review by the Courts of the European Union must be limited to ascertaining that there has been no error of law, manifest error in the assessment of the interests of the service which may have provided grounds for that decision or misuse of powers and that there has been no breach of the duty to have regard for the welfare of its staff that is incumbent on an administration when it is called upon to decide on the renewal of a contract between it and one of its members of staff. Furthermore, the Court reviews whether the administration committed material inaccuracies (see, to that effect, judgments of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraph 47, and of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 50).
28 The pleas raised by the applicant are to be examined in the light of those principles.
– The plea alleging that Cedefop infringed Article 266 TFEU and made a manifest error of assessment
29 The applicant submits that Cedefop ought, following the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), to have re-examined her request for the renewal of her contract as a member of the temporary staff and to adopt a new decision replacing the annulled decisions. According to the applicant, at the end of that re-examination, the only measure that Cedefop could lawfully adopt was the renewal of her contract. The applicant deduces that, by not adopting a decision to renew her contract, Cedefop infringed Article 266 TFEU and made a manifest error of assessment.
30 Cedefop contends that that plea is unfounded.
31 Under Article 266 TFEU, the institution whose measure has been declared void is required to take the necessary steps to comply with the judgment annulling that measure. Those rules provide for the sharing of powers between the judicial authority and the administrative authority, according to which it is for the institution that issued the act annulled to determine what measures are required to comply with a judgment annulling a decision (see, to that effect, judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 55 and the case-law cited).
32 In order to comply with a judgment annulling a measure and to implement it fully, the institution concerned is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis. However, Article 266 TFEU requires the institution which adopted the annulled measure only to take the necessary steps to comply with the judgment annulling its measure. That article requires the institution concerned to ensure that any measure intended to replace the annulled measure is not affected by the same irregularities as those identified in that judgment (see, to that effect, judgment of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraphs 29 and 30 and the case-law cited).
33 Where the annulled measure has already been implemented, the cancellation of its effects requires, in principle, that the legal situation in which the applicant found himself or herself before the adoption of that measure be reinstated (see judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84 and the case-law cited). The institution which adopted the measure may, however, rely, in its new decision, on grounds other than those on which it based its first decision (see, to that effect, judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 45 and the case-law cited).
34 It follows from the case-law referred to in paragraphs 31 to 33 above that Cedefop was required, in implementing the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), to re-examine the applicant’s request for the renewal of her employment contract and to take a new decision replacing the annulled decisions in compliance with the operative part of that judgment and the grounds which constituted its essential basis.
35 In the present case, it is apparent from the contested decision that the Executive Director of Cedefop considered that, by paying the compensation awarded to the applicant by the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), Cedefop had duly and fully implemented that judgment. The Executive Director therefore considered that he was not required to take any additional implementing measures.
36 While Cedefop’s Appeals Committee relied on considerations of the same nature as those on which the reason given to the applicant in the contested decision was based, it nevertheless, as stated in paragraph 22 above, supplemented the reasons for that decision by also basing the refusal to renew the applicant’s contract on considerations relating to the internal operation of Cedefop.
37 In that regard, in response to the arguments put forward by the applicant in her complaint, the decision rejecting the complaint states that the grounds of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), relating to the abolition of the Legal Service, did not require Cedefop to reinstate the applicant and that, in that judgment, the Court had not taken a position on the issue of Cedefop’s internal organisation or the recreation of the Legal Service. The decision rejecting the complaint also states that, although the applicant had referred, in her complaint, to the minutes of a meeting of Cedefop’s Executive Board of 3 March 2021, the re-establishment of the post of internal Legal Advisor, referred to at that meeting, was disconnected from the specific case of the applicant and that, consequently, it was not contradictory to consider the re-establishment of that post without reinstating the applicant. In addition, the decision rejecting the complaint states that it is clear from those minutes that the selection procedure for an internal Legal Advisor was directly connected to the outcome of the selection procedure for a new Head of Human Resources. Lastly, the decision rejecting the complaint states that Cedefop intended to reorganise the way in which the legal function was working within the agency to mitigate risks without intending to reinstate persons or past working organisations.
38 In the first place, the applicant submits that it was for Cedefop, in implementing the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), to resume the procedure for examining her request for the renewal of her contract and to adopt a new decision replacing the decision of 12 May 2017. However, it should be noted that, in the present case, Cedefop complied with that obligation. It is apparent from the statement of reasons for the decision rejecting the complaint, referred to in paragraph 37 above, that it is necessary to take into account in assessing the lawfulness of the contested decision that Cedefop, when examining the applicant’s complaint, assessed whether her request for the renewal of her contract should be granted and considered, following that examination, that she should not be reinstated, relying on considerations relating to Cedefop’s internal organisation.
39 In the second place, the applicant submits that the renewal of her contract was the only possible measure to remedy the illegalities established in the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613).
40 First, she submits that, by adopting the contested decision, Cedefop perpetuated the illegalities found in the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613).
41 However, it should be borne in mind that a member of the temporary staff has no right to the renewal of his or her contract, since such renewal is merely a possibility, as stated in paragraphs 25 and 26 above. Similarly, in the context of Cedefop’s discretion in implementing the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), it was open to it to decide not to renew the applicant’s contract, provided that the operative part of the judgment and the grounds constituting its essential basis did not preclude it from doing so. In that regard, it should be noted that it is not apparent from either the operative part or the grounds of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), that the Court, which confined itself to finding that the grounds on which the decision of 12 May 2017 was based were unlawful, held that the applicant’s contract necessarily had to be renewed. It should also be noted that the grounds which formed the basis of the new refusal to grant the contract renewal request, set out in paragraphs 35 to 37 above, are distinct from those which formed the basis of the decision of 12 May 2017, referred to in paragraph 7 above.
42 Secondly, the applicant maintains that reinstating her in the post was in line with the interests of the service, given that Cedefop had, correctly, considered it necessary to re-establish the function of internal Legal Advisor and that, in the light of her experience and skills, as evidenced by her appraisal reports, she was the person best qualified to perform that function. The applicant adds that, although the decision which the AECCE was required to adopt in implementing the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613) – which, according to the applicant, stated that the abolition of the Legal Service was contrary to the interests of the service – had to be adopted taking into consideration the circumstances existing on the date of the decision of 12 May 2017, the decision to re-establish the post of internal Legal Advisor, referred to at the meeting of Cedefop’s Executive Board of 3 March 2021, while subsequent to the decision of 12 May 2017, is relevant since it confirms that there was no practical difficulty in reinstating her.
43 However, by those arguments, which relate to the appropriateness of re-establishing the post of internal Legal Advisor, the suitability of her profile to the requirements of the post and the fact that there was no practical difficulty in reinstating her, the applicant does not specifically dispute the merits of the reason set out in paragraph 37 above, relating to developments in Cedefop’s internal organisation. In that regard, it should be noted that the applicant does not adduce any evidence to show that that reason, in so far as it is based, in particular, on the fact that Cedefop intended to develop its internal organisation and reorganise the way in which the legal function was carried out within the agency, is based on materially incorrect facts or is vitiated by a manifest error in the assessment of the interests of the service.
44 Lastly, it should be noted that that reason, put forward in the decision rejecting the complaint, was sufficient in itself to justify the decision not to renew the applicant’s contract.
45 It is clear from case-law that where some of the grounds in a decision on their own provide a sufficient legal basis for the decision, any errors in the other grounds of the decision have no effect on its operative part (judgments of 15 January 2015, France v Commission, T‑1/12, EU:T:2015:17, paragraph 73, and of 5 March 2019, Pethke v EUIPO, T‑169/17, not published, EU:T:2019:135, paragraph 93).
46 Consequently, if Cedefop, in order to refuse to grant the request to renew the applicant’s contract, relied, as stated in paragraphs 35 and 36 above, on the ground that no measures had to be taken following the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), since the payment of the compensation provided for in that judgment was sufficient to ensure that it was properly implemented, any errors in that ground have no effect on the lawfulness of the contested decision, which is to be assessed in the light of the statement of reasons contained in the decision rejecting the complaint. It follows that the arguments by which the applicant disputes the merits of that ground must be rejected as ineffective.
47 It follows from the foregoing that the applicant is not justified in claiming that Cedefop infringed Article 266 TFEU and made a manifest error of assessment in deciding not to renew her employment contract.
– Third plea, alleging breach of the duty of care
48 The applicant submits that the decision not to renew her contract was taken without the AECCE reflecting on any of the factors capable of affecting its decision, whereas both her personal interest and the interests of the service justified the renewal of her contract. The applicant deduces that the AECCE breached the duty of care.
49 Cedefop contends that that plea is unfounded.
50 In accordance with settled case-law, the competent authority is required, when it takes a decision concerning the situation of a member of staff, to take into consideration all the factors which may affect its decision, that is, not only the interest of the service, but also, in particular, that of the member of staff concerned. That is a consequence of the administration’s duty to have regard for the welfare of its staff, which reflects the balance of the reciprocal rights and obligations established by the Staff Regulations and, by analogy, the Conditions of Employment of Other Servants, in the relationship between a public authority and its staff (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 119 and the case-law cited).
51 Applied to a decision on the possible renewal of a contract of a member of the temporary staff, the duty to have regard for the welfare of staff therefore requires the competent authority, when it takes its decision, to balance the interests of the service and the interests of the staff member (see, to that effect, order of 22 October 2015, Macchia v Commission, T‑80/15 P, EU:T:2015:845, paragraph 29, and judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 73).
52 In the present case, it is apparent from the statement of reasons for the contested decision, supplemented by the decision rejecting the complaint, that Cedefop took the applicant’s situation into account, stating, inter alia, that she had requested and obtained, in compliance with the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), the payment of compensation for the non-renewal of her contract and that the payment of that compensation had made good the damage she had suffered. It also follows from the statement of reasons for the decision rejecting the complaint, referred to in paragraph 37 above, that it is necessary to take into account in order to assess the lawfulness of the contested decision, that Cedefop considered that, in the interests of the service, there were grounds for not renewing the applicant’s contract. It follows from the foregoing that, in re-examining the request for the renewal of the applicant’s contract, Cedefop took into account both the applicant’s interests and those of the service. The applicant is therefore not justified in claiming that Cedefop refused her request for the renewal of her contract without referring to any factor capable of affecting its decision.
53 The applicant also submits that, in re-examining her request for the renewal of her contract, the AECCE disregarded her personal interest and the interests of the service, both of which required her to be reinstated in her post.
54 However, first, it should be noted that it follows from paragraph 43 above that the evidence put forward by the applicant does not support the conclusion that the decision not to renew her contract was not in the interests of the service. Secondly, the applicant’s personal interest in obtaining the renewal of her contract cannot, in itself, justify the AECCE adopting a decision to that effect (see, to that effect, judgment of 14 July 2021, IN v Eismea, T‑119/20, not published, EU:T:2021:427, paragraph 88 and the case-law cited).
55 It follows from the foregoing that the plea alleging breach of the duty of care must be rejected.
– The plea alleging failure to observe the principle of the protection of legitimate expectations and the principles of equal treatment and non-discrimination
56 The applicant submits that, by refusing to renew her contract, Cedefop, first, failed to observe the principle of the protection of legitimate expectations and, second, failed to observe the principles of equal treatment and non-discrimination.
57 Cedefop contends that that plea is unfounded.
58 In the first place, it should be borne in mind that, in accordance with settled case-law, three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the European Union authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgments of 27 January 2016, Montagut Viladot v Commission, T‑696/14 P, EU:T:2016:30, paragraph 43 and the case-law cited, and of 12 September 2018, PH v Commission, T‑613/16, not published, EU:T:2018:529, paragraph 65 and the case-law cited).
59 In the present case, the applicant relies on the staff policy in force within Cedefop, which, according to the applicant, was last confirmed by a communication from the Director dated 31 March 2017, cited in paragraph 33 of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613). However, it should be noted that that communication, by which the Director informed the agency’s staff of the launch of a review of Cedefop’s administration, stated, as regards the aspects relating to staff careers, that ‘it [was] not the purpose of the review to reduce staff in Cedefop’ and that, in the event of a transfer of staff from administrative services to operations, ‘any moves [would] be carried out in the context of career planning and professional development’. Thus, contrary to the applicant’s claim, that communication does not contain any guarantee relating to the renewal of contracts of members of the temporary staff. Therefore, it cannot be held, in the light of the content of that communication, that the applicant received precise, unconditional and consistent assurances that her contract would be renewed. In the absence of such assurances, the applicant is not justified in claiming that there was a failure to observe the principle of the protection of legitimate expectations.
60 In the second place, according to settled case-law, the principle of equal treatment and the principle of non-discrimination are two labels for a single general principle of law, which prohibits both treating similar situations differently and treating different situations in the same way unless there are objective reasons for such treatment (see, to that effect, judgment of 13 July 2022, JF v EUCAP Somalia, T‑194/20, EU:T:2022:454, paragraph 107 and the case-law cited).
61 In the present case, while the applicant maintains that, within Cedefop, contracts of members of the temporary staff were systematically renewed where there was a positive recommendation from their immediate superior and that her situation resulted in different treatment, that claim, even if established, does not demonstrate that members of staff whose contracts were renewed were in a similar situation to that of the applicant, in the light, in particular, of the duties which those members of staff had previously carried out, the nature of the posts which they were to occupy and, more generally, all of the factors which it is for the competent authority to take into consideration when deciding whether to renew the contract of a member of the temporary staff. It follows that the applicant’s claim is not sufficient to establish that there was a failure to observe the principles of equal treatment and non-discrimination in the present case.
– The plea alleging misuse of powers
62 The applicant submits that the decision not to renew her contract is vitiated by a misuse of powers, since it was taken for a purpose other than that which the competent authority should have pursued as a matter of course in making use of its powers under Article 266 TFEU.
63 Cedefop contends that that plea is unfounded.
64 In accordance with settled case-law, the concept of misuse of powers has a very precise meaning and encompasses the use by an administrative authority of its powers for a purpose other than that for which they were conferred upon it. A decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive or main purpose of achieving ends other than those stated. In that regard, it is not sufficient to refer to certain facts in support of claims; evidence of a sufficiently specific, objective and consistent nature must also be adduced to support their truth or, at the very least, their probability, failing which the material accuracy of the statements of the institution concerned cannot be challenged (see judgment of 18 November 2020, H v Council, T‑271/10 RENV II, EU:T:2020:548, paragraph 48 and the case-law cited).
65 In the present case, the arguments put forward by the applicant are not such as to demonstrate that the decision not to renew her contract was taken for a purpose other than that which the competent authority was required to pursue in the exercise of the powers conferred upon it.
66 First, the applicant submits that account should be taken of the context of the present dispute and submits, in that regard, that there is evidence that the former Director of Cedefop had decided not to renew her contract in 2017 on account of her work ethics and the fact that she diligently handled the follow-up of investigations carried out following serious irregularities in the management of Cedefop. However, it should be noted that the Executive Director of Cedefop, who adopted the contested decision, was not involved in the alleged facts, which, assuming they are established, occurred before he took up his duties. It should also be noted that the applicant adduces no evidence to show that the context of the non-renewal of her contract in 2017 might have influenced the assessment made by the Executive Director when adopting the contested decision.
67 Second, the fact, relied on by the applicant, that the Executive Director of Cedefop, notwithstanding the re-establishment of the post of internal Legal Advisor, decided not to renew the applicant’s contract, despite the fact that the applicant’s performance within that agency had been the subject of very positive appraisals, cannot suffice, in the absence, in particular, of any evidence capable of demonstrating the existence of any hostility or unfavourable bias on the part of the Executive Director towards the applicant, to establish the existence of a misuse of powers. Similarly, the statements made by the Executive Director of Cedefop during the meeting of the Executive Board of 3 March 2021, to which the applicant refers in her pleadings, are not such as to reveal an intention to harm her or to take a decision adverse to her for reasons unrelated to the interests of the service. While the Executive Director stated during that meeting that, as regards the function of internal Legal Advisor, the use of the verb ‘re-establish’ should be preferred over the use of the verb ‘reinstate’, by that statement the Executive Director merely intended to clarify that the discussion concerned the function of Legal Advisor and not the identity of the person who would occupy it.
68 It follows from the foregoing that the applicant is not justified in claiming that the decision not to renew her contract is vitiated by a misuse of powers.
69 Consequently, since none of the pleas in law is well founded, the claim for annulment must be dismissed.
The claim for compensation
70 The applicant submits that, by failing to ensure proper compliance with the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), and by not renewing her contract, Cedefop caused her non-material damage which, according to the applicant, should be assessed at EUR 100 000 ex aequo et bono.
71 Cedefop contends that that claim should be dismissed.
72 It should be borne in mind that, in civil service issues, a claim for compensation for material and non-material damage must be rejected in so far as it is closely linked to the claim for annulment, which itself has been dismissed as unfounded (see judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 93 and the case-law cited).
73 In the present case, the claim for compensation is closely linked to the claim for annulment, since, according to the applicant, the decisions which she seeks to have annulled are the cause of the non-material damage she claims to have suffered.
74 Consequently, since the claim for annulment has been dismissed, the claim for compensation must also be dismissed.
Costs
75 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
76 Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by Cedefop.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1. Dismisses the action;
2. Orders VP to bear her own costs and to pay those incurred by the European Centre for the Development of Vocational Training (Cedefop).
Delivered in open court in Luxembourg on 7 February 2024.
V. Di Bucci | | M. van der Woude |
Table of contents
Background to the dispute
Forms of order sought
Law
The claims for annulment
The subject matter of the claims for annulment
The merits of the claim for annulment
– The plea alleging that Cedefop infringed Article 266 TFEU and made a manifest error of assessment
– Third plea, alleging breach of the duty of care
– The plea alleging failure to observe the principle of the protection of legitimate expectations and the principles of equal treatment and non-discrimination
– The plea alleging misuse of powers
The claim for compensation
Costs