JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

23 October 2013

Case F‑124/12

Ulrik Solberg

v

European Monitoring Centre for Drugs and Drug Addiction (EMCDDA)

(Civil service — Former member of the temporary staff — Non-renewal of a fixed-term contract — Obligation to state reasons — Scope of discretion)

Application:      under Article 270 TFEU, in which Mr Solberg seeks annulment of the decision of 12 January 2012 of the authority empowered to conclude contracts of employment (‘AECE’) of the Monitoring Centre for Drugs and Drug Addiction (‘EMCDDA’ or ‘the Monitoring Centre’) not to renew his temporary contract.

Held:      Mr Solberg’s action is dismissed. Mr Solberg is to bear his own costs and to pay the costs incurred by the European Monitoring Centre for Drugs and Drug Addiction.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Concept — Letter sent to a member of the temporary staff reminding him of the date of expiry of his contract — Not included — Decision not to renew a contract — Included

(Staff Regulations, Art. 90(2))

2.      EU law — Principles — Principle of sound administration — Obligation to state the reasons for a decision adversely affecting an official

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

3.      Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the interests of officials — Taking into consideration the interests of the staff member concerned

(Conditions of Employment, Art. 47)

1.      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 the interests of an official or staff member by bringing about a distinct change in his legal position are acts adversely affecting officials. Moreover, an act which contains no new factor by reference to a previous act merely confirms the previous act and for that reason cannot have the effect of causing time to run anew for the purpose of bringing an action.

In particular, a letter which merely reminds a member of staff about the provisions of his contract relating to the date of its expiry and containing no new factor by reference to those provisions is not an act adversely affecting that staff member.

However, where the contract is renewable, the decision taken by the administration not to renew the contract constitutes an act adversely affecting the person concerned, distinct from the contract in question and capable of forming the subject-matter of a complaint, or even an action, within the periods prescribed in the Staff Regulations. Such a decision, which is adopted following a reconsideration of the interests of the service and of the situation of the staff member concerned, contains a new factor by reference to the initial contract and cannot be regarded as merely confirming that contract.

(see paras 16-18)

See:

14 September 2006, C‑417/05 P Commission v Fernández Gómez, para. 46

25 October 1996, T‑26/96 Lopes v Court of Justice, para. 19; 15 October 2008, T‑160/04 Potamianos v Commission, para. 21

15 September 2011, F‑102/09 Bennett and Others v OHIM, paras 56, 57 and 59 and the case-law cited; 23 October 2012, F‑61/11 Possanzini v Frontex, para. 41

2.      The guarantees afforded by the European Union legal order in administrative proceedings include, inter alia, the principle of sound administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, a component of which, as laid down in Article 41(2)(c), is ‘the obligation of the administration to give reasons for its decisions’.

Moreover, the obligation to state the reasons for a decision adversely affecting an official is an essential principle of EU law which may be derogated from only for compelling reasons.

(see paras 29-30)

See:

29 September 2005, T‑218/02 Napoli Buzzanca v Commission, para. 57 and the case-law cited; 8 September 2009, T‑404/06 P ETF v Landgren, para. 148 and the case-law cited

27 September 2012, T‑387/09 Applied Microengineering v Commission, para. 76

3.      The duty of the administration to have regard to the interests of its officials implies in particular that when the competent authority takes a decision concerning the situation of an official or other staff member, even in the exercise of a broad discretion, it should take into consideration all the factors which may affect its decision; when doing so, it must take into account not only the interests of the service but also those of the official or staff member concerned.

However, 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 43, 45)

See:

27 November 2008, F‑35/07 Klug v EMEA, para. 79; 13 June 2012, F‑63/11 Macchia v Commission, para. 50, on appeal before the General Court, Case T‑368/12 P; 11 July 2012, F‑85/10 AI v Court of Justice, paras 167 and 168