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Language of document : ECLI:EU:T:2003:27

JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

6 February 2003 (1)

(Member of the temporary staff - Extension of contract - Term)

In Case T-7/01,

Norman Pyres, former member of the temporary staff of the Commission of the European Communities, residing in Brussels (Belgium), represented by G. Vandersanden and L. Levi, lawyers, with an address for service in Luxembourg,

applicant,

Commission of the European Communities, represented by J. Curral, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Single Judge),

Judge: P. Mengozzi,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 5 December 2002,

gives the following

Judgment

Legal context

1.

Article 2 of the Conditions of Employment of other servants of the European Communities ('the Conditions of Employment') provides:

'For the purposes of these conditions of employment, temporary staff means:

(a) staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;

...'.

2.

The first and fifth paragraphs of Article 8 of the Conditions of Employment state:

'Temporary staff to whom Article 2(a) applies may be engaged for a fixed or indefinite period.

...

The contracts of temporary staff to whom Article 2(a) ... applies who are engaged for a fixed period may be renewed not more than once for a fixed period. Any further renewal shall be for an indefinite period.'

3.

The first and second paragraphs of Article 26 of the Staff Regulations of officials of the European Communities ('the Staff Regulations') provide:

'The personal file of an official shall contain:

(a) all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct;

(b) any comments by the official on such documents.

Documents shall be registered, numbered and filed in serial order; the documents referred to in subparagraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed.'

Background to the dispute

4.

Norman Pyres ('the applicant') entered the Commission's service as a member of the temporary staff on 1 February 1997 and was assigned to Directorate-General 'Education, Training and Youth' (now, and hereinafter, 'DG Education and Culture') as a Grade A 4 Principal Administrator.

5.

The applicant's contract of employment, governed by Article 2(a) of the Conditions of Employment, was concluded for a term of three years. A note of 20 November 1996, attached to that contract, stated that the contract could be extended for a maximum period of one year and that such an extension could be granted only at the request of the Directorate-General to which the applicant was assigned and in so far as it was justified by the interest of the service.

6.

Upon learning in December 1999 that his contract was not going to be renewed, by letters of 3 and 15 January 2000 the applicant wrote to Mr Kinnock seeking information on that matter. Mr Kinnock replied by letter of 17 January 2000, informing the applicant that his contract would be renewed for a period of six months.

7.

By letter of 22 January 2000, the applicant was informed that the authority empowered to conclude contracts of employment ('the AECCE') had decided to renew his contract for a further period of six months, that is to say, until 31 July 2000 ('the contested decision').

8.

On 27 April 2000 the applicant lodged a complaint against that decision.

9.

By decision of 6 October 2000, the AECCE rejected the applicant's complaint. In that decision, the AECCE noted that on 13 September, 16 September and 12 November 1999 respectively, the applicant had received three written rebukes from his immediate superior, Mr S., concerning observance of procedures and respectfor the chain of command, which were considered sufficiently serious by DG Education and Culture for it not to request the renewal of his contract. The decision also makes it clear that the applicant's contract was renewed for a term of six months in order to comply with an internal note of 3 December 1996 which states that members of the temporary staff whose contracts are not to be renewed on the expiry of the original term of three years must be informed of that fact at least six months before the end of the contract.

Procedure and forms of order sought by the parties

10.

By application lodged at the Registry of the Court of First Instance on 12 January 2001, the applicant brought the present action.

11.

By decision of 21 November 2002, the Court of First Instance (Fourth Chamber) considered, in accordance with Article 47(1) of the Rules of Procedure of the Court of First Instance, as amended on 6 December 2000 (OJ 2000 L 322, p. 4) that a second exchange of pleadings was unnecessary because the documents before it were sufficiently comprehensive to enable the parties to elaborate their pleas and arguments in the course of the oral procedure.

12.

Pursuant to Articles 14(2) and 51(2) of the Rules of Procedure of the Court of First Instance, the Fourth Chamber of the Court assigned the case to P. Mengozzi, sitting as a single Judge. When heard, in accordance with Article 51(2) of the Rules of Procedure, the parties declared that they had no objections in that respect.

13.

The parties were heard in oral argument and answered questions put to them by the Court at the public hearing on 5 December 2002.

14.

The applicant claims that the Court should:

- annul the contested decision and, if necessary, the decision of 6 October 2000 by which the Commission rejected the applicant's complaint;

- order the Commission to pay the applicant damages, provisionally assessed at EUR 1, for the loss suffered;

- order the Commission to pay the costs.

15.

The Commission contends that the Court should:

- reject the application;

- make an appropriate order as to costs.

Admissibility

Arguments of the parties

16.

While not raising an objection within the meaning of Article 114 of the Rules of Procedure of the Court of First Instance, the defendant does express some reservations as to the admissibility of the action. In particular, it doubts whether the contested decision is an act which may be the subject of an action for annulment. That decision is in fact no more than the consequence of the original contract's expiring. The defendant argues that the applicant knew, as far back as 1996, that is to say when the contract was concluded, that that contract had a fixed term of only three years and that there was no guarantee that it would be extended for a fixed term, but that he did not contest those conditions at the time.

17.

According to the defendant, it is clear from the order of the Court in Case T-97/00 Vakalopoulou v Commission [2001] ECR-SC I-A-23 and II-91, paragraph 14, that an application of the kind at issue in these proceedings is admissible only if the official has formally requested the extension of his contract under Article 90 of the Staff Regulations and that request has been rejected. In the case in point, the Commission is not aware of any such request's having been made by the applicant. Since he failed to challenge the conditions of his employment contract at the material time or to make a request for its extension, it is not open to the applicant to challenge the decision to extend his contract for a term of six months.

18.

At the hearing, the applicant's adviser disputed the arguments put forward by the Commission in support of the inadmissibility of the action.

Findings of the Court

19.

In the judgment in Case 329/85 Castagnoli v Commission [1987] ECR 3281, paragraphs 10 to 12, and in the order in Case 95/87 Contini v Commission [1988] ECR 2537, paragraphs 8 to 10, the Court of Justice ruled that actions brought by two members of the auxiliary staff against acts of the Commission terminating their contracts of employment were inadmissible on the ground that the applicants had failed to challenge those contracts, which were the only acts adversely affecting them, in good time.

20.

Furthermore, in the order in Vakalopoulou v Commission, cited above, the Court of First Instance confirmed the inadmissibility of an action brought against a letter from the Commission informing the applicant that his contract would expire on the date set by the Commission, inter alia on the ground that since the applicant had not made a request under Article 90(1) of the Staff Regulations for an extension of his contract, and there was thus no negative response, or failure to reply to such a request by the Commission, it was only the contract of employment which had any legal effects for the applicant (paragraph 14).

21.

However, the case at issue here differs from the cases giving rise to the rulings of the Court of Justice cited in paragraph 19 and to the order of the Court of First Instance in Vakalopoulou v Commission.

22.

In Castagnoli v Commission and Contini v Commission, both cited above, the applicants essentially challenged their recruitment as members of the auxiliary staff, submitting that they should have been employed as members of the temporary staff. The Court of Justice held that their status as auxiliary staff had been expressly agreed in the original contract of employment and in the absence of any change to that status, in particular on the occasion of the extension of that contract, the original contract of employment was to be regarded as the only act adversely affecting the applicants (Contini v Commission, paragraph 8, and Castagnoli v Commission, paragraphs 10 and 11; see also the orders in Joined Cases T-137/99 and T-18/00 Martínez Páramo and Others and Angioli and Others v Commission [2002] ECR-SC I-A-0000 and II-0000, paragraphs 45 and 46, and in Case T-375/00 Dubigh and Zaur-Gora v Commission [2001] ECR-SC I-A-159 and II-733, paragraph 24).

23.

In the present case, the applicant is not challenging the initial terms of his contract, which stipulate that the contract was concluded for a fixed period. Instead, the applicant essentially alleges that the Commission renewed his contract for a period less than the maximum period provided for in the conditions agreed between the parties when the contract was concluded. In those circumstances, it is not the original contract which must be regarded as the act adversely affecting the applicant, but the act by which the AECCE decided to renew that contract for a period of only six months, even though, according to the conditions attached to the contract, it had the option to extend the contract for a maximum period of one year.

24.

As regards the order in Vakalopoulou v Commission, on which the defendant relies, it need only be pointed out that the applicant in the case giving rise to that order had challenged a purely informational letter from the Commission which merely reminded the applicant of the date of expiry of his employment contract. Moreover, the applicant's contract had already been renewed for a fixed term of one year without any objection from the applicant.

25.

In the light of the foregoing, the action must therefore be considered admissible.

Substance

Arguments of the parties

26.

The applicant puts forward five pleas in law in support of his application. The first plea alleges infringement of the duty to give reasons. The second alleges infringement of the principle of equal treatment, a manifest error of assessmentand failure to take account of the interests of the service. The third alleges infringement of the applicant's rights of defence. The fourth and fifth pleas allege misuse of power and infringement of the duty to have regard for the welfare of members of its staff and of the principle of sound administration respectively.

The first plea: infringement of the duty to state reasons

- Arguments of the parties

27.

The applicant observes that, according to settled case-law, the duty to state the grounds for decisions adversely affecting officials, laid down in Article 25 of the Staff Regulations, is infringed where the institution concerned initially supplies reasons which it subsequently alters.

28.

In that regard, the applicant states that Mr Kinnock, in his letter of 17 January 2000 informing the applicant that his contract would be renewed for a period of six months, explained that that renewal was intended to enable him to make the necessary plans for his family's future. In contrast, the contested decision did not state any reasons for limiting the extension of the applicant's contract to a period of six months. Finally, the decision of 6 October 2000 rejecting the applicant's complaint relies on his supposed incompetence as support for the decision to renew the contract for only six months. The applicant argues that, by altering the grounds of the decision to renew his contract for a term of six months only, the defendant failed to fulfil the obligation to state reasons imposed on it by Article 25 of the Staff Regulations.

29.

In addition, the applicant maintains that the considerations of incompetence referred to in the decision of 6 October 2000 are not valid. His competence and qualifications have received unanimous recognition and his work for DG Education and Culture was rated very highly by his superiors. In that connection, he has produced a series of documents showing the positive assessments made by his superiors as to his work and abilities, both within the Commission and externally.

30.

The applicant also states that while he was working in the 'Coordination and Planning' Unit of DG Education and Culture he was called upon to manage files in collaboration with Mr S. The applicant received three negative notes from Mr S. which were not warranted either by the quality of his work or by his personal conduct. The applicant challenged those notes of Mr S.'s and asked for them to be withdrawn. He also informed Ms Leens, one of his superiors, of the matter, who disagreed with the content of those notes and the action taken by Mr S. In addition, the applicant claims to have been aware that Mr S. had recurrent problems in his relationships with his colleagues, who complained of his arbitrary and unduly authoritative attitude.

31.

The defendant states that, according to the case-law, the basis of the relationship between a member of the temporary staff and the institution concerned is thecontract of employment, and that the sole justification for unilateral termination of such a contract lies in that contract, and there is therefore no need for a statement of reasons. Nor were reasons required for a decision such as the contested decision, extending the applicant's contract for a term of six months rather than a year, since that solution was foreseeable and lawful as a result of the parties' original agreement. In the circumstances, the six-month extension granted to the applicant is equivalent to the notice period provided for in Article 5 of the contract of employment, which applies in cases of renewal. The purpose of the extension was to allow the applicant to make the necessary arrangements, taking account of his family circumstances.

32.

In the alternative, the defendant argues that the applicant was well aware of the reasons which prompted the administration to renew his contract for a term of six months only.

- Findings of the Court

33.

It is common ground that the contested decision, contained in the letter to the applicant of 22 January 2000, does not include any information as to the reasons for which the AECCE decided to extend the applicant's contract for a period of six months only.

34.

According to the Commission, in the present case the administration did not have any obligation to state reasons, because the duration of the employment relationship between it and the applicant was exclusively governed by the terms of the contract of employment.

35.

It should first be noted that the fifth paragraph of Article 8 of the Conditions of Employment provides that the contracts of temporary staff, engaged for a fixed period, to whom Article 2(a) of the Conditions of Employment applies, may be renewed not more than once for a fixed period. That article confers a broad discretion on the institution concerned as to the duration and renewability of the contracts of temporary staff (Joined Cases T-330/00 and T-114/01 Cocchi and Hainz v Commission [2002] ECR-SC I-A-0000 and II-0000, paragraph 82).

36.

It should also be noted that, as pointed out by the Commission, it is settled case-law that there is no need to state the reasons for a unilateral termination expressly provided for in a temporary staff contract of unlimited duration, whichever party terminates the contract. That exemption from the obligation to state reasons is justified by the discretion which Article 47(2) of the Conditions of Employment confers on the competent authority as regards the termination of such a contract. In that respect, despite the general reference in Article 11 of the Conditions of Employment to Articles 11 to 26 of the Staff Regulations concerning the rights and obligations of officials, the situation of a member of the temporary staff differs from that of an official so as to exclude the application by analogy of Article 25 of the Staff Regulations relating to the obligation to state the grounds for any decisionadversely affecting an official (Case 25/68 Schertzer v Parliament [1977] ECR 1729, paragraphs 38 to 40; Case T-51/91 Hoyer v Commission [1994] ECR-SC I-A-103, II-341, paragraph 27).

37.

The case-law referred to above also applies where, as in the case in point, the temporary staff contract has been concluded for a fixed period and the legal action does not concern the unilateral termination of that contract by the administration but the act by which the administration extended the contract for a shorter period than the maximum period provided for in the original agreement between the parties.

38.

Unlike officials, whose security of tenure is guaranteed by the Staff Regulations, temporary staff are subject to specific conditions based on the contract of employment entered into with the institution concerned (Case T-45/90 Speybrouck v Parliament [1992] ECR II-33, paragraph 90). Accordingly, it follows from Article 47(1)(a) and (b) of the Conditions of Employment, which provide that the employment of a member of the temporary staff ceases on the date stated in the contract or at the end of the period of notice specified in the contract, that the duration of the employment relationship between an institution and a member of the temporary staff employed for a fixed period is governed, within the limits set by Article 8 of the Conditions of Employment, by the conditions laid down in the contract between the parties.

39.

In the present case, the applicant's contract of employment was concluded for a fixed period of three years. The note attached to the contract specified that the contract was renewable for a further year. That extension could be granted only at the request of the Directorate-General concerned and if it was justified by the interest of the service. It is clear from the contract and that attached note that, in accordance with the provisions of the fifth paragraph of Article 8 of the Conditions of Employment, the extension of the term of the contract was merely optional and that the administration was under no obligation to extend the contract, even where the necessary conditions for a renewal had been met (see Cocchi and Hainz v Commission, paragraph 83). Therefore, as the applicant himself acknowledges, the agreements entered into between the parties did not confer on him any right to the renewal of his contract.

40.

It follows that, just as there is no need to state the reasons for the termination of a contract of employment of a member of the temporary staff concluded for an indefinite period, the AECCE, given its very broad discretion in circumstances such as those in the present case, is not obliged to state the reasons for the act by which it decides, in compliance with the notice periods provided for in the contract and in Article 47(1)(b) of the Conditions of Employment and, where relevant, with the internal rules adopted by the institution concerned, not to renew such a contract of employment, concluded for a fixed period, on its expiry. That is all the more true where the AECCE decides to extend the contract of a member of the temporarystaff for a shorter period than the maximum period laid down in the agreements originally entered into by the parties.

41.

For the sake of completeness, it should be noted that the decision rejecting the applicant's complaint clearly and precisely states the reasons why the AECCE decided to extend the applicant's contract of employment for a period of six months only. Those reasons include the fact that there was no request for renewal of the applicant's contract from the Directorate-General to which he was assigned, and the consideration that an extension of more than six months was contrary to the interests of the service. As regards the length of the extension granted to the applicant, the decision refers to the necessity of observing the notice periods provided for in the internal rules applicable in the present case.

42.

In that regard, it must be observed that, contrary to the applicant's submissions, none of the reasons given by the AECCE refers to the alleged incompetence of the applicant, and that the reasons given in the decision rejecting the complaint are in no way inconsistent with those given in Mr Kinnock's letter to the applicant of 17 January 2000. In both that decision and Mr Kinnock's letter the need to give the applicant adequate notice to allow him to take the necessary measures in view of the expiry of his contract is cited as the reason for renewing the contract for a further six months.

43.

In those circumstances, and in the light of all the foregoing considerations, the first plea must be rejected as unfounded.

Second plea: infringement of the principle of equal treatment, manifest error of assessment and failure to take account of the interests of the service

- Arguments of the parties

44.

The applicant submits that the three-year contract of a member of the temporary staff is in principle renewed for a further year at the request of the Directorate-General to which the staff member is assigned if that is compatible with the interests of the service. Members of the temporary staff taking part in an establishment competition also have their contracts renewed until the final decision of the Selection Board.

45.

The applicant observes that in his case three units of the Directorate-General to which he was assigned had requested the benefit of his collaboration. In addition, he states that a notice was published concerning the post which he had occupied, which shows that his former Directorate-General still had a real need for the functions to which his abilities corresponded. That being so, the extension of his contract by six months only is contrary to the interests of the service and amounts to an error of assessment. Moreover, the refusal to extend the applicant's contract of employment for a year infringes the principle of equal treatment, since theCommission failed to apply to the applicant the internal practice and rules which were applicable to members of the temporary staff in the same situation as he was.

46.

The defendant counters that the AECCE was not obliged to extend the applicant's contract at all, and that it has in that regard discretion which cannot be called into question merely by pointing to the fact that other members of staff may have been afforded different treatment.

47.

In any event, the defendant maintains that the applicant had persistent difficulties in his relationships with his superior and that it was not, therefore, in the interests of the service to prolong his contract for more than the shortest possible period. His situation was thus not comparable to that of other members of the temporary staff.

- Findings of the Court

48.

By his second plea, the applicant essentially alleges that the Commission erred in its assessment of the interests of the service and failed to observe the principle of equal treatment, on the ground that his contract, in contrast to those of other temporary staff, was not renewed for a period of more than six months.

49.

The Court must first examine whether in the present case the Commission erred in assessing the requirements associated with the interests of the service.

50.

First, the Court of Justice and the Court of First instance have already held that the termination of a temporary staff contract concluded for an indefinite period, in accordance with Article 47(2) of the Conditions of Employment and in compliance with the notice period laid down in the contract, lies within the broad discretion of the competent authority, and that review by the Community courts must therefore be confined to ensuring that there has been no manifest error or misuse of powers (Case 25/80 De Briey v Commission [1981] ECR 637, paragraph 7; Case T-45/90 Speybrouck v Parliament [1992] ECR II-33, paragraphs 97 and 98; Case T-51/91 Hoyer v Commission [1994] ECR-SC I-A-103 and II-341, paragraph 27; Case T-52/91 Smets v Commission [1994] ECR-SC I-A-107 and II-353, paragraph 24, and Case T-123/95 B v Parliament [1997] ECR-SC I-A-245 and II-697, paragraph 70). Moreover, in Case T-223/99 Dejaiffe v OHIM [2000] ECR-SC I-A-277 and II-1267, the Court of First Instance held that since Article 47(1)(b) gives the institution concerned the option to terminate a temporary staff contract, concluded for a fixed period, prior to its expiry, where that contract expressly includes a termination clause, the case-law referred to above is applicable to that case by analogy (paragraph 51). That case-law must therefore, a fortiori, be considered to apply to cases concerning not the early termination but the renewal of a temporary staff contract concluded for a fixed period. Consequently, in those cases too, review by the Court must be confined to ensuring that there is no manifest error or misuse of powers.

51.

Second, it is not in dispute that the competent authority has a broad discretion as regards the assessment of the interests of the service and, accordingly, review by the Community courts must be confined to the question whether the authority concerned has kept within reasonable bounds and has not made use of its discretion in a manifestly incorrect way (Case T-79/98 Carrasco Benítez v Agency [1999] ECR-SC I-A-29 and II-127, paragraph 55, and Dejaiffe v OHIM, paragraph 53). As to the assessment of the interests of the service, it is also settled case-law that, when taking a decision concerning the situation of a member of staff, the competent authority is obliged to take into consideration all the factors which may affect its decision and, in particular, the interests of the member of staff concerned. That follows from the administration's duty to have regard to the welfare of its staff, which reflects the balance of reciprocal rights and obligations established by the Staff Regulations, and by analogy the Conditions of Employment, in the relationship between the official authority and its staff (see, to that effect, Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, paragraph 38; Case T-13/95 Kyrpitsis v ESC [1996] ECR-SC I-A-167 and II-503, paragraph 52, and Dejaiffe v OHIM, paragraph 53).

52.

It is against that background that the Court must examine, in the light of the evidence presented by the Commission, whether the Commission remained within the bounds of its broad discretion by deciding to renew the applicant's contract for six months only.

53.

In its decision rejecting the applicant's complaint, the AECCE pointed out that the applicant had received several 'rebukes' from his immediate superior, which the Directorate-General to which the applicant was assigned considered to be sufficiently serious for it not to request the renewal of his temporary staff contract.

54.

It is appropriate to briefly summarise the content of the three written rebukes referred to by the AECCE, and the applicant's replies to them.

55.

In the first of those notes, dated 13 September 1999, Mr S. drew the applicant's attention to the procedure to be followed in respect of the presentation of documents in the context of interservice cooperation. In particular, he pointed out that that procedure requires all draft documents which include comments from the Directorate-General to which the applicant is assigned to be approved by his superiors before being presented and discussed by the applicant in the other Directorates-General. Mr S. also requested that the applicant complete a number of tasks.

56.

On 13 September 1999, in reply to that note, the applicant sent a note for the attention of Mr S., in which he queried the feasibility of following the procedure referred to by Mr S., given the short deadlines to which he was required to work. He also expressed doubts as to the validity of such a procedure.

57.

After acknowledging receipt of the applicant's note, Mr S. sent a second note to the applicant, dated 16 September 1999, in which he described the applicant's comments as 'hard to digest'. He then went on to explain that the purpose of his note of 13 September was only to request the applicant to produce some concrete results. He also stated that he was no longer prepared to engage in such an exchange of notes, which was just a waste of time. After reminding the applicant of the procedure which must be followed when carrying out his tasks, Mr S. concluded with a negative assessment of the applicant's attitude, stating that the applicant frequently refused to carry out work assigned to him and that he had difficulty conforming to normal working procedures.

58.

The applicant replied to Mr S.'s note by a note of 20 September 1999 in which he made clear that he did not accept Mr S.'s appraisal of his attitude or his work. He stated that if he were to suffer any detriment whatsoever as a result of that appraisal he would be prepared to take the necessary steps to resolve the matter. He also asked Mr S. to retract his note of 16 September and the instructions given in it, explaining that if Mr S. did not do so, he would be obliged to commence formal dispute procedures. Finally, he requested a mandate to continue his work in accordance with his proposals. Since he did not receive any reply from Mr S., on 29 September 1999 the applicant sent a note to Ms Leens, in which he once again requested the retraction of Mr S.'s note of 16 September. He also complained that he was often denied secretarial assistance, that he was persistently required to perform functions beneath his grade, that his signature was frequently removed and that his proposals were frequently not followed up. He requested explanations regarding all those matters from his superior.

59.

On 12 November 1999, Mr S. sent the applicant another note, relating to working methods, in which he complained that the applicant had failed to observe the procedural rules and to respect the chain of command. The applicant did not reply to that note and submits that he has no recollection of having received such a note.

60.

The exchange of correspondence between the applicant and his immediate superior, set out above, shows that there was a serious conflict, which initially related to the applicant's working methods and later extended to all his activities. Moreover, far from being conciliatory, the applicant's attitude towards that conflict is characterised by a manifestly problematic relationship with his immediate superior and by an openly critical approach to his superior's working methods.

61.

As the Commission correctly submits, conflicts of that type impede the efficacy of work, such that it is in the interests of the service to put an end to them.

62.

In those circumstances, given the very broad discretion accorded to the competent authority in respect of the extension of temporary staff contracts, the AECCE did not make any manifest error of assessment by considering that it was not in the interests of the service to renew the applicant's contract for more than six monthswhich would risk unduly prolonging the conflict between the applicant and his immediate superior.

63.

Furthermore, the applicant's interests were adequately taken into consideration by the administration when it decided to renew his contract for six months only.

64.

In that regard, it should be noted that the applicant did not have any right to the renewal of his contract, which was a mere option, conditional upon a request to that effect from his Directorate-General and upon such a renewal being in the interests of the service. His contract was nevertheless renewed for a term of six months in order to allow him adequate notice in compliance with the internal rules of the defendant institution.

65.

It follows from all the foregoing considerations that the applicant's allegation that the AECCE erred in its assessment of the interests of the service is not well founded and must therefore be rejected.

66.

In those circumstances, the applicant's plea of failure to observe the principle of equal treatment must also be rejected inasmuch as an extension of the applicant's contract was, in any event, inconceivable, since the competent authority did not consider the condition concerning the interests of the service to be met.

67.

Therefore, in the light of all the foregoing considerations, the second plea must be rejected in full as unfounded.

Third plea: infringement of the rights of the defence

- Arguments of the parties

68.

The applicant submits that neither the notes sent to him by Mr S. nor his replies to Mr S. were placed in his personal file, which constitutes infringement of Article 26 of the Staff Regulations and of his rights of defence.

69.

The defendant replies that, in the present case, it is only relevant whether the applicant was aware of the criticisms made of him by his immediate superior. As the recipient of Mr S.'s written rebukes, he was not only aware of those criticisms, but had also responded to them.

- Findings of the Court

70.

Article 26 of the Staff Regulations, which applies in the present case by virtue of the reference to it in the first paragraph of Article 11 of the Conditions of Employment, provides that the personal file of an official is to contain all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct, as well as any comments by the official on such documents. It is settled case-law that the purpose of that article is to guarantee an official'sright of defence by ensuring that decisions taken by the appointing authority affecting his administrative status and his career are not based on matters concerning his conduct which are not included in his personal file. Consequently, a decision based on such matters is contrary to the guarantees contained in the Staff Regulations and must be annulled because it was adopted on the basis of a procedure vitiated by illegality (Case 21/70 Rittweger v Commission [1971] ECR 7, paragraphs 29 to 41; Case 233/85 Bonino v Commission [1987] ECR 739, paragraph 11: Case T-78/92 Perakis v Parliament [1993] ECR II-1299, paragraph 27, and Case T-109/92 Lacruz Bassols v Court of Justice [1994] ECR-SC I-A-31 and II-105, paragraph 68).

71.

However, according to well-established case-law, the fact that the personal file of the official concerned does not contain any of the factors on which a decision of the appointing authority is based, vitiates that decision only if those factors 'had a decisive influence on the choice made by the appointing authority' (see Case 88/71 Brasseur v Parliament [1972] ECR 499, paragraph 18, and Rittweger v Commission, paragraph 35).

72.

In the present case, it is common ground that the three notes sent to the applicant by Mr S. and the applicant's replies to those notes were not placed in his personal file. It is also clear from the decision rejecting the applicant's complaint that the assessment made of the interests of the service in renewing his contract took those notes into account.

73.

However, it is also clear from that decision that the interests of the service were not the only factor on which the AECCE relied, since it also took account of the fact that the Directorate-General to which the applicant was assigned had made no request concerning the renewal of his contract.

74.

Under the conditions attached to the applicant's contract of employment, that contract could only be extended at the request of the Directorate-General. Consequently, if there were no such request, the applicant's contract could not be renewed, even if that renewal were in the interests of the service.

75.

At the hearing, the parties confirmed that although certain units in the Directorate-General to which the applicant was assigned had expressed their interest in collaborating with the applicant, DG Education and Culture had not made any request for a renewal of his contract.

76.

It follows that even though the AECCE's assessment of the interests of the service in renewing the applicant's contract was based on documents which had not first been placed in his personal file, in breach of Article 26 of the Staff Regulations, it must be held that since there was no request from the Directorate-General to which the applicant was assigned, neither that assessment, nor the evidence on which it was based, was capable of having a decisive influence on the AECCE's decision.

77.

Against that background, in the light of the case-law referred to in paragraph 71, the fact that neither the three notes from Mr S. nor the applicant's replies to those notes were placed in the applicant's personal file cannot vitiate the contested decision.

78.

In the light of all the foregoing considerations, the third plea, alleging infringement of the rights of the defence, cannot be upheld.

Fourth plea: misuse of powers

- Arguments of the parties

79.

The applicant maintains that the contested decision can be explained only by Mr S.'s negative attitude towards him and is not in any way justified by his own conduct, professional or personal.

80.

He considers that he has been the subject of victimisation by Mr S. and DG Education and Culture's Human Resources Unit which acted so as to prevent the renewal of his contract and the continuation of his working relations with the Commission. Because of that negative attitude, his various attempts to find a new post within the Commission were blocked. He has also been unable to obtain further references from his former Directorate-General. In his submission, those facts constitute the corroborative signs of a misuse of powers affecting the contested decision. The defendant did not exercise its power in accordance with the general interest of the service but in such a way as improperly to prevent any continuation of the applicant's work with the Commission, notwithstanding his abilities and, therefore, the interests of the service.

81.

The defendant counters that the applicant has produced no evidence to show that the contested decision is vitiated by any misuse of power.

- Findings of the Court

82.

It is settled case-law that the concept of misuse of powers has a precisely defined scope and refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision amounts to a misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (see Case T-118/95 Anacoreta Correia v Commission [1996] ECR-SC I-A-283 and II-835, paragraph 25; Joined Cases T-112/96 and T-115/96 Séché v Commission [1999] ECR-SC I-A-115 and II-623, paragraph 139, and Joined Cases T-97/99 and T-99/99 Chamier and O'Hannrachain v Parliament [2001] ECR-SC I-A-1 and II-1, paragraph 104).

83.

In the present case, the applicant has not provided any evidence whatsoever to show that the AECCE used its powers for a purpose other than that for which theywere conferred on it or, in particular, that by adopting the contested decision, it acted with the intention of preventing any continued working relationship between the applicant and the Commission.

84.

In those circumstances, the fourth plea, alleging misuse of powers, cannot be upheld.

Fifth plea: infringement of the duty to have regard for the welfare of members of staff and of the principle of sound administration

- Arguments of the parties

85.

The applicant considers that, by refusing to extend his contract by a year, the defendant infringed the principle of sound administration which requires that a member of staff with the applicant's profile should be maintained in the Commission's service. The defendant also failed to have regard to its duty to have regard for the applicant's welfare, in that he was not informed of the non-renewal of his contract until December 1999, although it was to expire in January 2000. Furthermore, he was informed of the six months' extension of his contract only when he requested information from Directorate-General 'Personnel and Administration', even though the decision had already been taken by DG Education and Culture but not notified to him.

86.

The defendant replies that there was no infringement of the duty of care in the present case, since the applicant's contract was extended by six months specifically in order to take account of his personal situation.

- Findings of the Court

87.

It is settled case-law that although the administration's duty to have regard to the welfare of members of staff is not mentioned in the Staff Regulations, it reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants. A particular consequence of that duty and of the principle of sound administration is that when the authority takes a decision concerning the situation of an official, it should take into consideration all the factors which might influence its decision, and accordingly it should take into account not only the interests of the service but also those of the individual concerned (Case 321/85 Schwiering v Court of Auditors [1986] ECR 3199, paragraph 18; Case C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, paragraph 38; Joined Cases T-33/89 and T-74/89 Blackman v Parliament [1993] ECR II-249, paragraph 96: Case T-79/98 Carrasco Benítez v Agency [1999] ECR-SC I-A-29 and II-127, paragraph 55, and Case T-102/98 Papadeas v Committee of the Regions [1999] ECR-SC I-A-211 and II-1091, paragraph 56).

88.

In that regard, it has already been held, in paragraph 63 above, that due account was taken of the applicant's interests when adopting the contested decision. As theCommission correctly points out, it is clear from both Mr Kinnock's letter to the applicant of 17 January 2000 and from the decision rejecting the applicant's complaint that the six-month renewal of the applicant's contract was intended, in accordance with the Commission's internal practice, to provide him with adequate notice to enable him to take the necessary steps in view of the expiry of his contract.

89.

In those circumstances, the applicant cannot maintain that by granting him an extension of only six months, the defendant failed to observe its duty to have regard to his welfare.

90.

As regards the applicant's complaint alleging infringement of the principle of sound administration, it is sufficient to note that, as was held in paragraph 62 above, the AECCE did not make any manifest error of assessment by considering that it was not in the interests of the service to renew the applicant's contract for more than six months. In those circumstances, and given the fact that, as has been held above, the applicant's interests were duly taken into account by the administration, the applicant cannot maintain that the contested decision was adopted in breach of the principle of sound administration.

91.

The fifth plea must therefore be rejected as unfounded.

92.

In the light of all the foregoing considerations, the applicant's pleas for annulment must be rejected.

Claims for compensation

Arguments of the parties

93.

The applicant maintains that the instances of unlawfulness complained of in his application reflect a number of faults committed by the Commission, causing it to incur liability. He claims to have suffered both material and non-material loss which he evaluates provisionally at EUR 1.

94.

The defendant opposes the applicant's claim, arguing that it ought to be dismissed.

Findings of the Court

95.

According to settled case-law, claims for compensation for material and non-material damage must be rejected where they are closely linked to pleas for annulment which have themselves been rejected as unfounded (see, for example, Case T-207/95 Ibarra Gil v Commission [1997] ECR-SC I-A-13 and II-31, paragraph 88, and Case T-211/95 Petit-Laurent v Commission [1997] ECR-SC I-A-21 and II-57, paragraph 88).

96.

In the present case, there is a close link between the action for compensation and the action for annulment.

97.

In those circumstances, since the examination of the pleas raised in support of the claim for annulment has not brought to light any unlawful action by the Commission and, accordingly, any wrongful act capable of giving rise to liability on its part, the action for annulment must be dismissed on its merits.

98.

In the light of all the foregoing considerations, the action must be dismissed in its entirety.

Costs

99.

Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. However, Article 88 of those Rules provides that in proceedings between the Communities and their servants, the institutions are to bear their own costs. In the present case, each of the parties must therefore bear its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE

hereby:

1. Dismisses the action;

2. Orders each party to bear its own costs.

Delivered in open court in Luxembourg on 6 February 2003.

H. Jung

P. Mengozzi

Registrar

Judge

1: Language of the case: English.