JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

2 December 2008

Case T-471/04

Georgios Karatzoglou

v

European Agency for Reconstruction (EAR)

(Civil service – Temporary staff – Referral back to the Court of First Instance after setting aside – Termination of contract – Obligation to state the reasons on which the decision is based – Misuse of powers – Principle of sound administration)

Application: for annulment of the decision of the EAR of 26 February 2004 to terminate the applicant’s contract of employment.

Held: The action is dismissed. Mr Georgios Karatzoglou and the European Agency for Reconstruction (EAR) are to bear their own costs incurred before the Court of Justice and the Court of First Instance.

Summary

1.      Officials – Members of the temporary staff – Separate rules – Termination of the indefinite contract of a member of the temporary staff – Obligation to state reasons – None

(Staff Regulations, Art. 25, second para.; Conditions of Employment of Other Servants, Arts 11 and 47(2)(a))

2.      Officials – Actions – Pleas in law – Misuse of powers – Definition

3.      Officials – Members of the temporary staff – Termination of the indefinite contract of a member of the temporary staff – Proposal to transfer to another country – Refusal

1.      The unilateral termination of a contract of employment for an indefinite period of a member of the temporary staff, expressly provided for in Article 47(2)(a) of the Conditions of Employment of Other Servants, arises from a broad discretion of the competent authority and is recognised by the member of staff at the time of his recruitment. Justification for it is to be found in the contract of employment and therefore reasons do not have to be stated for it. A member of the temporary staff whose recruitment is based on a contract liable to be terminated unilaterally and without the need to give reasons, in accordance with the applicable law, differs fundamentally, in that respect, from that of an official. He does not benefit from the security of tenure guaranteed to the latter, since his activities are, by definition, intended to be carried out only for a limited period. The situation of a member of the temporary staff is therefore different from that of an official under the Staff Regulations, thus precluding the application by analogy of the second paragraph of Article 25 of the Staff Regulations, relating to the obligation to state the reasons for decisions having an adverse effect, as provided for under the general terms of Article 11 of the Conditions of Employment.

(see paras 35-36)

See: 25/68 Schertzer v Parliament [1977] ECR 1729, paras 39 and 40; C‑18/91 P V. v Parliament [1992] ECR I‑3997, para. 39; T‑45/90 Speybrouck v Parliament [1992] ECR II‑33, para. 93; T‑51/91 Hoyer v Commission [1994] ECR-SC I‑A‑103 and II‑341, para. 27; T‑256/01 Pyres v Commission [2005] ECR-SC I‑A‑23 and II‑99, para. 43; T‑10/02 Girardot v Commission [2006] ECR-SC I‑A‑2‑129 and II‑A‑2‑609, para. 72

2.      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 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 a party’s statements cannot be challenged.

(see paras 49-50)

See: T‑111/99 Samper v Parliament [2000] ECR-SC I‑A‑135 and II‑611, para. 64; T‑152/00 E v Commission [2001] ECR-SC I‑A‑179 and II‑813, para. 69; T‑155/03, T‑157/03 and T‑331/03 Cwik v Commission [2005] ECR-SC I‑A‑411 and II‑1865, paras 179 and 180

3.      In accordance with the principle of sound administration, when the administration takes a decision concerning the situation of a member of staff, it must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the member of staff concerned. If the administration has given a member of the temporary staff the option of a transfer to another country instead of terminating his contract, in terminating the staff member’s contract only after he has refused that transfer it takes into account not only the interests of the service but also those of the member of staff concerned.

(see paras 56-58)

See: T‑11/03 Afari v ECB [2004] ECR-SC I‑A‑65 and II‑267, para. 42; F-28/06 Sequeira Wandschneider v Commission [2007] ECR-SC I-A-0000 and II-A-0000, para. 150