ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)

10 September 2014

Case F‑122/13

Maria José Carneiro

v

European Police Office (Europol)

(Civil service — Europol staff — Non-renewal of a fixed-term contract — Reclassification of a fixed-term contract as a contract of indefinite duration — Action in part manifestly inadmissible and in part manifestly lacking any legal basis)

Application:      under Article 270 TFEU, in which Ms Carneiro seeks annulment of the decisions by which the European Police Office (Europol) refused to recognise that her temporary staff contract was concluded for an indefinite duration and to renew that contract, which expired on 31 October 2013, for an indefinite duration.

Held:      The action is dismissed as being in part manifestly inadmissible and in part manifestly lacking any legal basis. Ms Carneiro is to bear her own costs and is ordered to pay the costs incurred by the European Police Office.

Summary

1.      Actions brought by officials — Prior administrative complaint — Time-limits — Point from which time stArts to run — Date of signature of the temporary staff contract

(Staff Regulations, Art. 90(2))

2.      Actions brought by officials — Prior administrative complaint — Correspondence between the complaint and the action — Same subject-matter and legal basis — Submissions and arguments not made in the complaint but closely related to it — Admissibility

(Staff Regulations, Arts 90 and 91)

3.      Officials — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the administration

4.      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 account of the interests of the staff member concerned — Judicial review — Limits

(Europol Staff Regulations, Arts 6 and 57(3); Conditions of Employment of Other Servants, Art. 88)

1.      As regards determining the point at which an act adversely affecting a staff member occurred, in other words, fixing the date from which the time-limit for lodging a complaint must be calculated, it should be noted that a contract deploys its effects and, consequently, its ability adversely to affect the temporary staff member concerned from the time it is signed, so that it is, as a rule, from the date of signature that the time-limit for lodging a complaint in good time should be calculated for the purposes of Article 90(2) of the Staff Regulations.

(see para. 36)

See:

judgments in Scheefer v Parliament, F‑105/09, EU:F:2011:41, para. 48 and the case-law cited therein; and Davids v Commission, F‑105/11, EU:F:2012:84, para. 54

2.      In actions brought by officials, claims before the Union judicature may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the Union judicature by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it. In that regard it should be noted that, first, since the pre-litigation procedure is an informal procedure and those involved at that stage are generally acting without the assistance of a lawyer, the administration must not interpret complaints restrictively but should, on the contrary, examine them with an open mind, and, secondly, it is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the claims submitted at that stage change neither the legal basis nor the subject-matter of the complaint. However, the fact remains that, if the pre-litigation procedure laid down in Article 91(2) of the Staff Regulations is to achieve its purpose, the appointing authority or the authority authorised to conclude contracts of employment must be able to know with sufficient precision the criticisms which those concerned are making against the contested decision.

(see paras 41, 42)

See:

judgment in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paras 73, 76 and 77 and the case-law cited therein

3.      The right to rely on the protection of legitimate expectations extends to any individual who is in a situation in which it is apparent that the administration has led him to entertain justified expectations by giving him precise assurances in the form of precise, unconditional and consistent information coming from authorised and reliable sources.

Consequently, a staff member may not reasonably criticise the administration for having taken budgetary constraints into consideration, since they are among the factors which the administration must take into account in its staff policy.

(see paras 48, 56)

See:

judgments in Bellantone v Court of Auditors, F‑85/06, EU:F:2007:171, para. 64; and Mendes v Commission, F‑125/11, EU:F:2013:35, para. 62

4.      The administration has a broad discretion with regard to the renewal of contracts and, in that context, review by the Courts must be limited to ascertaining whether, regard being had to the factors and reasons that led the administration to its assessment, it remained within unimpeachable limits and did not manifestly misuse its power.

In that regard, the Civil Service Tribunal may be required to verify that the administration did not base its decision on incorrect or incomplete material facts. For that purpose, it must satisfy itself that the administration exercised its powers effectively in order to establish the facts which served as the basis for its decision, so as to take into account all the relevant evidence. The Tribunal may also find it necessary to examine whether the administration undertook a detailed, or specific, examination of the relevant aspects of the individual case, in such a way that that examination was undertaken with care and impartiality.

Furthermore, the duty of the administration to have regard to the interests of its staff implies that when the competent authority takes a decision concerning the situation of a 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. Having regard specifically to the extent of the institutions’ discretion in evaluating the interests of the service, the review undertaken by the Courts of the Union must be confined to the question whether the competent authority remained within reasonable limits and did not use its discretion incorrectly.

(see paras 50, 51, 60)

See:

judgment in Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, para. 39

judgments in Caravelis v Parliament, T‑182/99, EU:T:2001:131, para. 32; Brendel v Commission, T‑55/03, EU:T:2004:316, para. 60; and BUPA and Others v Commission, T‑289/03, EU:T:2008:29, para. 221

judgment in Gheysens v Council, F‑8/10, EU:F:2010:151, para. 75