Language of document : ECLI:EU:T:2017:282

Case T‑584/16

HF

v

European Parliament

(Civil service — Contract staff for auxiliary tasks — Article 3b of the CEOS — Successive contracts of employment as a member of the contract staff — Fixed-term contracts — Decision not to renew — Misuse of powers — Request for assistance — Right to be heard — Non-contractual liability)

Summary — Judgment of the General Court (First Chamber), 24 April 2017

1.      Officials — Members of the contract staff — Recruitment — Non-renewal of a fixed-term contract — Concept of adversely-affecting decision where a contract not renewed — Decision adopted without first giving the interested party the opportunity to comment — Infringement of the right to be heard

(Charter of Fundamental Rights of the European Union, Art. 41(2))

2.      Officials — Members of the contract staff — Recruitment — Non-renewal of a fixed-term contract — Allegation of psychological harassment — Illegality of the decision not to renew — Condition — Link between the actions constituting harassment and the decision not to renew

(Staff Regulations, Art. 12a)

3.      Officials — Organisation of departments — Assignment of staff — Administration’s discretion — Freedom to structure administrative units — Scope — Abolition of posts — Reassignment of tasks — Limits — Efficient work organisation

4.      Officials — Members of the contract staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the interests of officials — Account to be taken of the interests of the staff member concerned and of the service — Judicial review — Limits

(Conditions of Employment of Other Servants of the European Communities, Arts 2 and 3a)

1.      The rights of the defence, as henceforth enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, which is of general application, include, while being more extensive, the procedural right provided for in paragraph 2(a) of that article, of every person to be heard, before any individual measure which would affect him or her adversely is taken.

Thus, the right to be heard, which must be safeguarded even where there are no applicable rules, requires that the person concerned must have been afforded the opportunity effectively to make known his views on any information against him which might have been taken into account in the measure to be adopted.

In the matter of contract renewal, as the Authority empowered to conclude contracts of employment (AECE) is under no obligation under the Staff Regulations to avail itself of the option, provided for in the Conditions of Employment of Other Servants of the European Communities (CEOS), to extend the contract of employment of a member of staff or to inform the relevant staff member within any fixed period of its intentions in that regard, no implied decision waiving that option can be attributed to the AECE on the date of expiry of the contract.

In order for there to be a decision of the AECE on the renewal of a contract, it must have been the result of a review by the AECE of the interest of the service and that of the staff member concerned and the AECE must have made a fresh assessment by reference to the terms of the initial contract containing at the outset the date on which the contract is to end.

However, when a member of staff, in their capacity as a person covered by the Staff Regulations, submits a request for renewal of his contract of employment pursuant to Article 90(1) of the Staff Regulations before the expiry of that contract or when the institution provides in its internal rules for the use in due time before the expiry of the contract of a member of staff of a specific procedure for renewal of that contract, then, at the end of such a procedure or in response to such a request under the Staff Regulations, a decision on renewal of the contract of the person concerned must be deemed to have been adopted by the AECE and, inasmuch as the decision adversely affects the person concerned, that person must have been heard by the AECE before the adoption of that decision which, moreover, must contain a statement of reasons as required by Article 25 of the Staff Regulations, which is applicable by analogy to members of the contract staff for auxiliary tasks by virtue of Article 92 of the CEOS.

In the situation in which the AECE decides, in so far as such an option is provided for in the CEOS, not to avail itself of its option under the CEOS to extend the contract of employment of a member of staff, such a decision not to renew can be adopted only once the person concerned has been able duly to put forward their point of view, which may be a simple announcement by the AECE of its intention and its reasons for not availing itself of that option, as part of a written or verbal exchange, which may even be brief. That exchange must be initiated by the AECE, which bears the burden of proof.

In that regard, the principle of observance of the rights of the defence is particularly important where, as in the present case, the decision not to renew the appellant’s contract of service was adopted against a background of poor personal relations, whilst bearing in mind that the question whether there has been infringement of the right to be heard must be determined having regard to, inter alia, the legal rules governing the matter in question.

(see paras 59, 60, 149, 150, 152-154)

2.      In the context of non-renewal of a contract of a contractual agent who has made a request for assistance, an applicant’s claim of psychological harassment at the hands of their superior does not suffice to establish that any act adopted by the AECE, inter alia during the currency of an administrative inquiry, is unlawful. The applicant must still prove the effect of the conduct amounting to psychological harassment on the content of the act being challenged, since, in that case, that means that the AECE, through its officials and higher-level members of staff, used its power in the pursuit of an unlawful goal in the light of Article 12a of the Staff Regulations, which provides that officials shall refrain from any form of psychological or sexual harassment.

(see para. 92)

3.      Permanent posts in the institutions are, in principle, intended to be filled by officials and that it is only by way of exception that such posts may be filled by other staff. The administration has broad discretion in the organisation and structuring of its departments and may decide that tasks that were not clearly identified and have evolved over time and that were previously entrusted to members of the contract staff for auxiliary tasks, possibly as replacements for officials or members of the temporary staff, must henceforth be entrusted to people holding permanent posts.

The institutions and bodies of the EU are also free to organise their administrative units taking account of a whole range of factors, such as the nature and scope of the tasks which are assigned to them and the budgetary possibilities. That freedom involves both the freedom to abolish posts and to change the allocation of tasks in the interest of more efficient work organisation or in response to budgetary requirements to abolish posts imposed by the Union’s political authorities, and the power to reassign tasks previously carried out by the holder of the post abolished, without the abolition of that post necessarily being subject to the condition that all the tasks imposed must be performed by fewer people than before the reorganisation. Furthermore, the abolition of a post does not have to mean that the tasks it involved lapse.

(see paras 102, 103)

4.      The renewal of a contract of a member of the temporary staff is merely a possibility left to the discretion of the competent authority, in this case the AECE.

The institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service. Moreover, 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 CEOS, in the relationship between a public authority and its staff.

That being so, the CEOS does not impose on the administration a prior obligation to examine the possibility of assigning a member of the temporary staff to a department other than the one to which they were assigned, either in a situation involving termination of a contract of indefinite duration. Similarly, no such obligation exists with respect to members of the contract staff, such as the applicant, who are not assigned to a post listed in the table of staff annexed to the section of the budget relating to each institution. However, even for this category of members of staff, even though they do not hold a post listed in that table, the administration is required, when ruling on a request for renewal of a contract submitted by a member of staff, to take into consideration all factors liable to be decisive for its decision, that is to say, not only the interest of the service but also inter alia that of the member of staff concerned.

In that regard, in view of the broad discretion conferred on the institutions in that context, review by the courts is limited to determining that there has been no manifest error or misuse of power.

(see paras 118-120, 122)