JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
10 September 2014
Case F‑120/13
KE
v
European Railway Agency (ERA)
(Civil service — Temporary staff — Non-renewal of a fixed-term contract — Agency staff — Reduction of staff — ERA multiannual financial framework — Abolition of two posts from the establishment plan — Compliance with the essential formalities — Right to a fair hearing — Internal directives — Interests of the service)
Application: under Article 270 TFEU, in which KE seeks annulment of the decision of the Executive Director of the European Railway Agency (‘ERA’) of 22 March 2013, by which he confirmed that the applicant’s contract as a member of the temporary staff would expire on the date scheduled in that contract, i.e. on 30 September 2013.
Held: The action is dismissed. The European Railway Agency is to bear its own costs and to pay half of the costs incurred by KE. KE is to bear half of her own costs.
Summary
1. Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed-term contract — Adoption of internal directives giving the staff member an opportunity to submit comments before the adoption of the decision — Legal effects
(Conditions of Employment of Other Servants, Art. 47)
2. Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed-term contract — Adoption of internal directives giving the staff member an opportunity to submit comments before the adoption of the decision — Procedure for interviewing the staff member
(Conditions of Employment of Other Servants, Art. 47)
3. Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed-term contract — Adoption of internal directives establishing a procedure for decisions on renewal — Administration’s failure to comply with the indicative time-limits laid down in those directives — Consequences
(Conditions of Employment of Other Servants, Art. 47)
4. Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed-term contract — Administration’s discretion — Scope — Abolition of posts for budgetary reasons
(Conditions of Employment of Other Servants, Art. 47)
5. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the welfare of staff — Taking into account of the interests of the staff member concerned — Limits
(Conditions of Employment of Other Servants, Arts 8 and 47)
1. While it is true that the Conditions of Employment of Other Servants, and particularly Article 47, do not lay down any specific procedure designed to enable a member of the temporary staff employed for a fixed period to be duly heard before a decision not to renew his contract is adopted, the fact remains that, in the absence of any written rule in the Staff Regulations, an institution or agency may lay down internal procedures and rules allowing the temporary staff member to be heard before a decision is taken on his future employment, particularly through the adoption of internal directives, provided that the use of that option does not result in a derogation from an express rule in the Staff Regulations or Conditions of Employment.
In that regard, such internal directives may, in an area in which the institution or agency has a broad discretion conferred by the Staff Regulations, take the form of a decision which is communicated to all staff and which seeks to ensure that the officials and members of the staff concerned are treated identically. Where an institution or agency adopts such a decision, it must, as such, be regarded as an indicative rule of conduct which the administration imposes on itself and from which it may not depart without stating the reasons which have led it to do so, since otherwise the principle of equal treatment would be infringed.
(see paras 46-48)
See:
judgments in Louwage v Commission, 148/73, EU:C:1974:7, para. 12; and Lux v Court of Auditors, 129/82 and 274/82, EU:C:1984:391, para. 20
judgments in Schneider v Commission, T‑54/92, EU:T:1994:283, para. 19; and Monaco v Parliament, T‑92/96, EU:T:1997:105, para. 46
judgments in Petrilli v Commission, F‑98/07, EU:F:2009:7, para. 55 and the case-law cited therein; and Bernard v Europol, F‑99/07 and F‑45/08, EU:F:2009:84, para. 79 and the case-law cited therein
2. When it comes to the implementation of guidelines of a Union agency concerning the procedure for the renewal of fixed-term temporary contracts, particularly the dialogue to be conducted between the agency and the staff member concerned about the possibilities for renewing his contract, the agency must ensure that the staff member is clearly informed of the purpose of the interview with his superiors, so that he is able to make his views known properly before a decision adversely affecting him is adopted concerning the expiry of his employment contract. Accordingly, even if the guidelines do not require the dialogue between the staff member and his superior to be in written form, and even if, therefore, information on the purpose of the interview may be verbal and arise from the context in which the interview takes place, it may be more appropriate to issue a written invitation to the staff member concerned to attend.
(see para. 55)
3. Where the indicative time-limits laid down in the internal directives of a Union agency concerning the procedure for the renewal of fixed-term temporary contracts have not been met, it is also necessary that that irregularity might have affected the content of a decision not to renew a contract.
In that regard, in a situation where the post in question is to be abolished, the budgetary impact, seen in terms of expenditure under the body’s operating budget, of a proposal not to renew the temporary contract of the staff member occupying that post is effectively neutral, since such a decision merely confirms that appropriations which have been cancelled for the next financial year will not be used. Consequently, as regards a requirement in the internal directives that a decision not to renew a contract must be referred to the agency’s human resources department before it is adopted, given that that department might make no comment on a proposed decision which, precisely, was not capable of having any budgetary impact, the referral of the non-renewal decision, even if within the prescribed time-limits, would not be liable to have any effect on the content and, therefore, the legality of that decision.
(see paras 67, 69, 70)
See:
judgment in Wunenburger v Commission, T‑246/04 and T‑71/05, EU:T:2007:34, para. 149 and the case-law cited therein
4. An institution alone has the power to organise and operate a department, and the hierarchical authority has sole responsibility for how departments are organised. It is for that authority alone to assess the needs of the service and to assign the staff available to it accordingly.
The Union institutions and agencies also have the freedom to structure their administrative units taking account of a series of factors such as the nature and scale of the tasks 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 interests 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.
Consequently, by deciding, for compelling budgetary reasons, to abolish assistants’ posts rather than administrators’ posts, and by identifying and retaining, of the assistants’ posts occupied by temporary staff whose contracts will expire in the course of the year, one post whose abolition would have the least operational impact, the institution remains within the limits of its discretion in that area.
(see paras 81-83)
See:
judgments in Labeyrie v Commission; 16/67, EU:C:1968:37, page 302; Geist v Commission, 61/76, EU:C:1977:127, para. 38; and Bellardi-Ricci and Others v Commission, 178/80, EU:C:1981:310, para. 19
judgments in Scheuer v Commission, T‑108/89, EU:T:1990:45, para. 41; Pitrone v Commission, T‑46/89, EU:T:1990:62, para. 60; Sebastiani v Parliament, T‑163/89, EU:T:1991:49, para. 33; Lacruz Bassols v Court of Justice, T‑109/92, EU:T:1994:16, point 88; Cesaratto v Parliament, T‑108/96, EU:T:1997:115, paras 48 to 51; and Karatzoglou v EAR, T‑471/04, EU:T:2008:540, para. 59
5. Although Article 8 of the Conditions of Employment of Other Servants makes it possible to renew a temporary staff contract, it is not an entitlement, but merely a possibility left to the discretion of the competent authority. Furthermore, unlike the provisions for officials, a member of the temporary staff employed for a fixed period and whose contract is expiring has no priority entitlement that would enable him, at the end of his employment, to be reinstated in any other post in the same function group which becomes vacant or is created in the institution or body which employed him.
Consequently, particularly in a context of general political demands on the Union institutions and agencies to reduce their staff gradually and year on year, it cannot be complained that the authority authorised to conclude contracts of employment infringed its duty to have regard for the welfare of staff by not renewing the employment of a staff member for an indefinite period because of the abolition of posts in its budget.
That is particularly true where, in any event, the service record of the staff member concerned does not show any particular merit in the performance of his most recently allocated tasks. The taking into consideration of the personal interests of a staff member whose professional performance has been regarded as unsatisfactory should not extend so far as to prevent the competent authority from not renewing his fixed-term contract despite the opposition of that staff member, if the interests of the service demand it.
(see paras 91, 92, 95, 96)
See:
judgments in Nebe v Commission, 176/82, EU:C:1983:214, para. 18; Lux v Court of Auditors, 69/83, EU:C:1984:225, para. 17
judgments in Potamianos v Commission, T‑160/04, EU:T:2008:438, para. 30; and P ETF v Michel, T‑108/11 P, EU:T:2013:625, para. 88
judgments in Klug v EMEA, F‑35/07, EU:F:2008:150, para. 79; AI v Court of Justice, F‑85/10, EU:F:2012:97, paras 167 and 168; and Solberg v EMCDDA, F‑124/12, EU:F:2013:157, para. 45