JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

25 June 2015

Case F‑55/14

EE

v

European Commission

(Civil Service — Contract staff — Non-renewal of a fixed-term contract — Claims for annulment — Renewal procedure — Article 41(2)(a) of the Charter of Fundamental Rights of the European Union — Right to be heard — Infringement — Claim for compensation — Non-material harm)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which EE seeks annulment of the decision of the European Commission not to renew his contract as a member of the contract staff and of the decision rejecting his complaint, as well as an order that the Commission pay him the sum of EUR 20 000 by way of damages.

Held:      The decision of the European Commission not to renew the contract of EE as a member of the contract staff, communicated orally on 14 October 2013, confirmed by the note of 31 October 2013 and explained in the note of 13 December 2013, is annulled. The European Commission is ordered to pay EE the sum of EUR 10 000. The European Commission is to bear its own costs and is ordered to pay the costs incurred by EE.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Concept — Decision not to renew a contract — Decision distinct from the contract — Included

(Staff Regulations, Arts 25 and 90(1))

2.      Officials — Contract staff — Recruitment — Non-renewal of a fixed-term contract — Adoption of the decision without first giving the person concerned the opportunity to submit his observations — Breach of the right to be heard

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Conditions of Employment of Other Servants, Art. 47)

1.      A decision refusing to renew a fixed-term contract is an act adversely affecting the person concerned within the meaning of Article 25 of the Staff Regulations if it is distinct from the contract in question, which will be particularly the case if it is based on new factors or if it constitutes an expression of the position of the administration adopted following a request from the member of staff concerned and dealing with the possibility, provided for in the contract, of renewing that contract.

(see para. 25)

See:

Judgment of 23 November 2010 in Gheysens v Council, F‑8/10, EU:F:2010:151, para. 64

2.      Observance of the rights of the defence, and more specifically the right of the official to make known his views on any matters which might be relied on to his detriment as the basis of a decision adversely affecting him, is an essential procedural requirement, breach of which may be raised by the Court of its own motion.

In that regard, a decision not to renew the contract of a member of the contract staff adversely affects the situation of the staff member concerned, in so far as it deprives him of the possibility of continuing his employment. The rights of the defence, as now 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.

Moreover, as regards in particular the conditions under which a fundamental right may be restricted, it is sufficient to observe that, if the person concerned had been properly heard, the authority empowered to conclude contracts of employment would have been able to obtain more information to examine whether or not the decision not to renew the contract was linked to the situation of the staff member at his place of employment, and to better understand the conditions in which he was working. It cannot therefore be excluded that the authority’s decision not to renew the staff member’s contract could have been different if he had been given a proper opportunity to make his point of view known.

(see paras 35, 37, 40)

See:

Judgments of 21 December 2011 in France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, para. 65; 22 November 2012 in M., C‑277/11, EU:C:2012:744, paras 81 to 83, and 18 July 2013 in Commission v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paras 98 and 99

Judgment of 11 September 2013 in L v Parliament, T‑317/10 P, EU:T:2013:413, para. 81

Judgments of 11 September 2008 in Bui Van v Commission, F‑51/07, EU:F:2008:112, para. 77, and 17 September 2014 in Wahlström v Frontex, F‑117/13, EU:F:2014:215, para. 27