JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Full Court)
26 October 2006 (*)
(Temporary staff – Contract for an indefinite period – Dismissal – Incompetence – Obligation to state reasons – Manifest error of assessment)
In Case F‑1/05,
ACTION under Articles 236 EC and 152 EA,
Pia Landgren, former member of the temporary staff of the European Training Foundation, residing in Turin (Italy), represented by M.-A. Lucas, lawyer,
applicant,
v
European Training Foundation (ETF), represented by its director, M. Dunbar, assisted by G. Vandersanden, lawyer,
defendant,
THE TRIBUNAL (Full Court),
composed of P. Mahoney, President, H. Kreppel and S. Van Raepenbusch (Rapporteur), Presidents of Chambers, I. Boruta, H. Kanninen, H. Tagaras and S. Gervasoni, Judges,
Registrar: S. Boni, Administrator,
having regard to the written procedure and further to the hearing on 12 July 2006,
gives the following
Judgment
1 By application received by fax at the Registry of the Court of First Instance of the European Communities on 28 April 2005 (the original being lodged on 2 May 2005), Ms Landgren applied, in particular, for the annulment of the decision of The European Training Foundation (‘the ETF’) of 25 June 2004 terminating her contract for an indefinite period as a member of temporary staff (‘the decision to dismiss’).
Legal framework
2 Under the first paragraph of Article 11 of the Conditions of Employment of other servants of the European Communities (‘the Conditions of Employment’), the provisions of Articles 11 to 26 of the Staff Regulations of officials of the European Communities (‘the Staff Regulations’), concerning the rights and obligations of officials, are to apply by analogy.
3 Under the second paragraph of Article 25 of the Staff Regulations:
‘Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.’
4 Furthermore, Article 47 of the Conditions of Employment provides as follows:
‘Apart from cessation on death, the employment of temporary staff shall cease:
…
(c) Where the contract is for an indefinite period:
(i) at the end of the period of notice stipulated in the contract; the length of the period of notice shall not be less than one month for each completed year of service, subject to a minimum of three months, and a maximum of 10 months. The period of notice shall not, however, commence to run during maternity leave or sick leave, provided such sick leave does not exceed three months. It shall, moreover, be suspended during maternity or sick leave subject to the limits aforesaid;
…’
5 According to Article 5(b) of the contract of temporary employment concluded between the applicant and the defendant on 3 January 1995, extended for an indefinite period by an amending clause dated 18 July 2000:
‘This contract may be terminated by the institution or by the staff member for any of the reasons specified in Articles 47 to 50 of the [Conditions of Employment], subject to the conditions laid down in those articles.
For the purposes of Article 47 § 2.a of the [Conditions of Employment], should the employee decide to resign, the employee shall give a minimum of three months’ notice. In derogation from … Article 47 § 2.a of the [Conditions of Employment], should the [ETF] decide to terminate the contract, the [ETF] shall give the employee a minimum of six months’ notice.’
Facts
6 Ms Landgren, born on 21 June 1947, was recruited by the ETF on 3 January 1995 as a member of the temporary staff in category C for a period of three years from 1 January 1995. She was provisionally classified in grade C 3, step 1, and later in grade C 1, step 2, by an amendment to her contract of employment dated 1 July 1996.
7 Her contract was extended for a further period of three years on 24 October 1997 and then for an indefinite period on 18 July 2000.
8 Generally speaking, from January 1995 to December 2001, Ms Landgren performed both the duties of an administrative assistant in charge of personnel files, in particular, recruitment procedures, missions and leave, and secretariat functions for one or more persons.
9 The probationary report drawn up on Ms Landgren on 10 May 1995 included the following assessments:
– in regard to ‘Ability to perform her duties’: ‘good’, although under the heading ‘Comprehension, adaptability, judgment’, the assessment was ‘insufficient’, justified by a lack of precision, attention to detail and care;
– in regard to ‘Output’: ‘good’, but once again ‘insufficient’ under the heading ‘Speed in performing work’, justified by a number of delays, particularly in regard to drawing up staff contracts;
– in regard to ‘Conduct in the service’: ‘very good’.
10 Ms Landgren’s first performance evaluation report, covering 1995-1997, was drawn up on 13 May 1997 and was generally positive. On a scale of 1 to 6, going from ‘excellent’ to ‘absolutely negative’, the applicant obtained an overall mark of 3, which corresponds to ‘fair’. In particular, she was rated ‘good’ under the headings ‘Expertise’ and ‘Conduct in the service’ and ‘unsatisfactory’ under the heading ‘Efficiency’. Once again, lack of attention and of speed in performing work were referred to in that regard. Although it was emphasised that the overall assessment was positive, she was asked to be more accurate and to improve her ‘political sense’.
11 The second performance evaluation report, drawn up on 17 June 1998 and covering 1997-1998, gave her a higher overall mark, namely 2, which corresponds to ‘good’. The reporting officer noted in his general comments that the applicant’s performance had improved a lot, although pointing out, under the heading ‘Efficiency’, that there was still room for improvement.
12 The third performance evaluation report, drawn up on 17 January 2000 and covering 1999-2000, again gave the applicant a mark of 2, and made no reference to any weakness, her performance under all the headings being assessed as ‘good’. She was, however, asked to improve her ‘time management’. On the other hand, her knowledge of the regulations and the functioning of the ETF was emphasised.
13 In the fourth performance evaluation report, drawn up on 29 March 2001 and covering 2000-2001, the applicant received a lower overall mark, namely 3. While emphasising the applicant’s communication skills, her tact, her politeness, her wide knowledge of the ETF, her flexibility and her loyalty towards the hierarchy, the report drew attention to weaknesses in regard to computer skills and, under the heading, ‘Analysis and reasoning’, she was asked not to draw too hasty conclusions, in particular when she was not fully aware of all the issues, although it was accepted that she came up with good proposals. Finally, it was suggested that she should undergo training in taking notes in meetings.
14 From January 2002 to January 2003 inclusive, the applicant was employed in the Directorate of the ETF, where she performed the duties of a secretary and an administrative assistant, with particular responsibility for the missions and leave of the members of the Directorate.
15 On 9 July 2002, the Deputy Director of the ETF, Mr Hillenkamp, drew up an interim performance evaluation report which concluded that Ms Landgren did not sufficiently meet the requirements of her position. That conclusion was based on weaknesses identified in regard to the preparation of missions and agenda handling, attributed to a lack of organisation and follow-up, a limited capacity to use computer systems and unfamiliarity with the ETF’s organisational structure and tasks. The report none the less emphasised Ms Landgren’s positive attitude and her efforts to carry out her many duties.
16 At the end of 2002, the two Deputy Directors, Mr Hillenkamp and Mr Pescia, acting as reporting officers, prepared a draft appraisal of Ms Landgren’s performance in 2002, in accordance with a new system of performance appraisal which had come into effect in January of that year.
17 Mr Hillenkamp confirmed his evaluation of 9 July 2002, finding unreliability and serious deficiencies in almost all aspects of the applicant’s performance of her duties, but he drew attention to her efforts in that regard. He stated that he had lost confidence in the quality of her services and concluded that she could no longer continue to occupy her post.
18 Mr Pescia’s evaluation was much less severe inasmuch as he considered that Ms Landgren’s performance of her specific tasks was generally fair, or even good in regard to certain tasks, but his overall appraisal drew attention to delays in execution and mistakes due to lack of attention, partly attributable, in his opinion, to job overload.
19 In her comments on this appraisal, Ms Landgren contested some of Mr Hillenkamp’s specific criticisms or justified her conduct, but she admitted that the job was too difficult for her. She also drew the Directorate’s attention to the fact that her difficulties might be explained by temporary memory failure due to her state of health, and to the extremely negative consequences which the loss of her job would have for her, having regard to her financial resources, her family situation and her age. She thus asked the Directorate to consider the possibility of assigning her to less demanding duties, either in the Directorate or in other departments.
20 That performance appraisal was never finalised nor, therefore, was it ever placed on the applicant’s personal file.
21 On 1 February 2003, the applicant was assigned, on a half-time basis and for an indefinite period, to the Eastern Europe and Central Asia Department (‘the EECA’) of the ETF as secretary to the Head of Department, Ms Stefani, the Deputy Head of Department, Ms Taurelli, and the ETF coordinator. As accepted by the Director, the half-time working request was for the period from 1 February 2003 to 31 December 2004 and was justified as ‘preparation for retirement (as of 55 years of age)’.
22 The applicant’s performance appraisal report for 2003, drawn up on 18 March 2004, was favourable. It contained the following passage:
‘Pia has achieved her key objectives set for 2003. An assessment of the related key indicators shows that she has been able to perform her tasks effectively and efficiently with respect of deadlines.
Pia has shown capacity to concentrate on her work even while having to deal with several issues at the same time. She has made a substantial effort to improve her memory.
Pia has improved her IT skills.
Pia maintains good, friendly but respectful relations with her peers and fellow colleagues.’
23 The latter report was drafted by Ms Taurelli in her capacity as acting Head of Department in the absence of Ms Stefani, on sick leave from November 2003 to March 2004 inclusive, and was countersigned by Mr de Rooij in his capacity as Director. Although Ms Stefani did not sign it, she was none the less mentioned in the report as reporting officer, alongside Ms Taurelli. It is not disputed that the Head of Department did not agree with Ms Taurelli’s assessment and had a rather negative opinion of the applicant’s performance.
24 Subsequently, the applicant felt it necessary to raise, in the course of an interview with Ms Stefani, the possibility of continuing to work half-time. According to the applicant, although the authorisation to work half-time had been granted for the period from 1 February 2003 to 31 December 2004, it ceased to have effect on 1 February 2004 since Article 1 of Annex IVa to the Staff Regulations, in the version in force prior to 1 May 2004, limited the validity of such an authorisation to one year. During the abovementioned interview, which took place on 10 May 2004, the Head of Department informed Ms Landgren that she might discuss her application with the Director, Mr de Rooij.
25 On 17 May 2004, the applicant had an interview with Mr de Rooij, who offered her a choice between ‘early retirement’ and dismissal. Mr de Rooij also made it clear that if she was dismissed, the applicant would be eligible for an unemployment allowance under Article 28a of the Conditions of Employment until she reached the minimum age for retirement, namely 60 years of age.
26 On 15 June 2004, the applicant had a further interview with Mr de Rooij, this time in the presence of a mediator appointed by the ETF. At that interview, Mr de Rooij informed the applicant that she was ‘a nice person but an inefficient secretary’ and, for the latter reason, he was asking her to resign.
27 At a third meeting, on 25 June 2004, at which other ETF managers were present, Mr de Rooij gave the applicant a letter terminating her contract as a member of the temporary staff with effect from 1 January 2005. It is apparent from the file that, in fixing the date on which the dismissal was to take effect, the Director of the ETF took into account the fact that, on that date, Ms Landgren would have completed the 10 years’ service necessary for entitlement to a retirement pension.
28 The decision dismissing the applicant reads as follows:
‘Dear Pia,
In accordance with Article 47 of the Conditions of Employment of Other Servants and in accordance with the terms and conditions of your contract and its amending clauses, I am very sorry to inform you that your employment as temporary agent within the ETF will be terminated. The amending clause of your contract foresees a period of notice of six months, therefore your last working day will be 31 December 2004.
Thank you very much for your contribution to the ETF and let me wish you a lot of success in your future career.’
29 As a result of that decision, the applicant was assigned to the Administration and Central Services Unit with effect from 1 July 2004. At her request, she was allowed to return to full-time work from that date.
30 The applicant, who underwent surgery in October 2004, was on sick leave for three months. Consequently, her period of notice was suspended for the same length of time.
31 On 27 September 2004, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the decision to dismiss.
32 By decision of 19 January 2005, received on 21 January 2005, the authority empowered to conclude contracts of employment (‘the AECCE’) rejected that complaint on the ground that the dismissal was justified by the unsatisfactory and inadequate nature of the applicant’s performance and that the AECCE had not exercised in a manifestly erroneous manner the wide discretionary powers which it has to assess the interest of the service. As part of its duty of care, it even took account of the applicant’s interests in fixing the date on which the dismissal took effect.
Procedure and forms of order sought
33 The present action was initially lodged at the Registry of the Court of First Instance and was entered as Case T‑180/05.
34 Pursuant to Article 3(3) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7) the Court of First Instance made an order on 15 December 2005 referring the case to the Civil Service Tribunal. The action was lodged at the Tribunal Registry as Case F‑1/05.
35 The applicant claims that the Tribunal should:
– annul the decision to dismiss;
– annul, if necessary, the decision of 19 January 2005 rejecting her complaint of 27 September 2004;
– order the ETF to pay her, in compensation for the material damage caused by the decision to dismiss, a sum equivalent to the remuneration and pension she would have received if she had been able to continue her career at the ETF until the age of 65, reduced by the amount of the allowances for dismissal and unemployment and the pension she has received or will receive because of her dismissal;
– order the ETF to pay her a sum at the Tribunal’s discretion to make good the non-material damage caused by the decision to dismiss;
– order the defendant to pay the costs.
36 The ETF contends that the Tribunal should:
– dismiss the claims for annulment as unfounded;
– dismiss the claim for compensation for the material and non-material damage allegedly suffered principally as inadmissible or in the alternative as unfounded;
– make an appropriate order as to costs.
Law
37 In support of her application, the applicant relies on four pleas in law alleging:
– failure on the part of the ETF to establish that the decision to dismiss is based on a reason which is valid in law;
– that the reason for the decision to dismiss is unlawful and contrary to the interests of the service inasmuch as that reason, namely Ms Stefani’s refusal to retain the applicant in her department after 31 December 2004, is based on a decision to that effect adopted without the applicant’s knowledge before she was assigned to the EECA department;
– that the reason for the decision to dismiss is unlawful and arbitrary to the extent that the refusal of Ms Stefani to retain the applicant in her department after 31 December 2004 is based on the adverse assessments made of the applicant in the past;
– failure to state reasons, breach of the rights of the defence and manifest errors of assessment, inasmuch as Ms Stefani’s refusal to retain the applicant in her department after 31 December 2004 or after the decision to dismiss is based on the applicant’s incompetence.
The first and fourth pleas
38 The first and fourth pleas fall to be examined together.
Arguments of the parties
39 In support of her first plea, the applicant contends that a decision to dismiss must be based on a reason which is valid in law, related to the interests of the service and excluding anything of an arbitrary nature (see to that effect Case 25/60 De Bruyn v European Parliamentary Assembly [1962] ECR 21, 29 to 31). It is incumbent on the administration to provide proof that that is so, in particular where the decision to dismiss is in open contradiction with documents on the file, such as, in this case, the most recent, favourable, performance appraisal report drawn up on the applicant in 2004.
40 According to the applicant, the real reason for her dismissal is to be found in the undertaking which Mr de Rooij gave to Ms Stefani not to retain the applicant in her department beyond 31 December 2004, the date on which she could have claimed a pension. Such an undertaking was manifestly arbitrary because it prejudged the way in which the applicant would perform her duties in the future.
41 The defendant’s argument in the reply rejecting the applicant’s complaint, to the effect that Ms Stefani did not agree with the positive nature of the applicant’s most recent performance appraisal report and wished to change it, is without any foundation, inasmuch as Ms Stefani had herself informed the applicant, during an interim appraisal meeting on 24 July 2003, that her performance was perfectly satisfactory in regard both to her conduct in the service and to the way in which she did her work, and also inasmuch as Ms Stefani was not in a position to make an objective assessment of the applicant’s performance by reason of the summer holidays and the fact that she was on sick leave between November 2003 and March 2004. In any event, if the decision to dismiss was based on Ms Stefani’s unfavourable opinion of the applicant, the latter was not informed of any such opinion before the decision was adopted, thereby in breach of the rights of the defence.
42 Although the decision rejecting the applicant’s complaint sought to establish that Ms Landgren’s overall performance had been unsatisfactory, which was the only reason for her dismissal, it based that conclusion only on the negative or qualified appraisal of the applicant’s performance made in the past by some of her hierarchical superiors and on the fact that her workload and the requirements of her superiors had been normal having regard to the fact that she was in Grade C 1 and to the small size of the ETF. The defendant has in no way shown that the applicant’s performance in Ms Stefani’s department was unsatisfactory or that it was insufficient to remove the doubts as to her professional capacity arising from her earlier appraisals.
43 Moreover, the appraisal reports for the period from 1995 to the end of 2002 are not sufficient to justify dismissal, inasmuch as those reports were generally satisfactory, if not favourable or very favourable, notwithstanding the fact that some of them made mention of a few deficiencies and that the report for 2002 was never finalised.
44 Faced with an open contradiction between the decision to dismiss and the appraisal report of 18 March 2004, the ETF has thus not shown, at least in its decision to reject the complaint, that that decision was based on a reason valid in law.
45 In support of her fourth plea, the applicant adds that if the decision to dismiss is based not on Ms Stefani’s refusal to retain the applicant in her department after 31 December 2004 but on the allegedly inadequate nature of the applicant’s general professional capacity, including in the EECA department, that decision was adopted in breach of the rights of the defence and on the basis of manifest errors of assessment.
46 That negative opinion was based on appraisals of which the applicant was unaware (such as the refusal of the head of the Tempus department to grant her an interview when she applied for a vacant post in that department) or which were never made definitive (such as the draft appraisal report for 2002).
47 In addition, the negative appraisals contained in the earlier reports were given more weight than the very favourable appraisal made by Ms Taurelli in the most recent report, without the Director having stated, whether in the decision to dismiss or during the meetings which preceded it, the reasons why he considered that the negative factors should take precedence over the positive ones. However, the negative assessments made in the past concerning the applicant may be explained, in particular, by the heavy workload she then had and by the requirements of her hierarchical superiors.
48 The applicant was not informed of the reasons why Ms Stefani did not agree with the appraisals contained in the 2004 report at the meetings held on 17 May, 15 June or 25 June 2004, nor were those reasons set out in the decision to dismiss or even in the reply rejecting the applicant’s complaint. If Ms Stefani’s unfavourable opinion determined the adoption of the decision to dismiss, the applicant’s rights of defence have been infringed and the statement of the reasons on which the aforementioned decision is based is inadequate to such a serious degree as to amount to a failure to state reasons.
49 Finally, the applicant alleges a breach of the duty of care inasmuch as the decision to dismiss took account only to a manifestly insufficient degree of her good qualities and legitimate interests. She was dismissed two years before she reached the minimum retiring age, and this caused her, in addition to material damage, serious non-material damage in the form of a sense of deep humiliation and ingratitude in spite of her efforts to deal with her heavy workload to the best of her ability. Although her performance was sometimes subject to criticism, that criticism may be explained by her double workload under the authority of two deputy directors and her health problems.
50 The defendant observes that, generally speaking, it has no legal obligation, whether under the Conditions of Employment or the applicant’s employment contract, to give reasons for the decision to dismiss (see, to that effect, Case 25/68 Schertzer v Parliament [1977] ECR 1729 and Case T‑45/90 Speybrouck v Parliament [1992] ECR II‑33). Articles 47 to 50 of the Conditions of Employment do not refer back to Article 11 thereof and certainly not, by analogy, to Article 25 of the Staff Regulations, which requires that any decision adversely affecting an official is to state the grounds on which it is based.
51 That being so, the applicant was dismissed, as is clear from the interviews with Mr de Rooij on 15 and 25 June 2004, because her performance was judged to be inadequate and unsatisfactory to the extent that confidence in her was lost. The defendant therefore denies the existence of any decision adopted at the end of 2002, before the applicant was assigned to the EECA department, by virtue of which it was agreed that the applicant’s employment would be terminated on 31 December 2004.
52 According to the defendant, the dismissal of a member of staff on the ground of her incompetence and the inadequate nature of her performance is in accordance with the general interest.
53 The existence of incompetence on the part of the applicant may be concluded objectively from the probationary report and the various appraisal reports covering the period from 1995 to 2002, upon which the applicant had an opportunity to comment at the time that they were drawn up. The defendant annexed to its rejoinder a number of affidavits, drawn up in February and March 2006 by Mr de Rooij, Mr Hillenkamp, Mr Panzica, the former head of personnel and administration, Ms Stefani and Ms Perrine, a secretary at the ETF.
54 The complaints, precisely formulated and repeated by the reporting officers, concerned both the type and the level of the duties assigned to the applicant. Those duties (in particular, organising the appointments and trips of the directorate, applications for missions, reservation of hotel rooms and copying of documents for meetings) were not only not very demanding, having regard to the capacities normally required of a secretary in Grade C 1, but also limited in quantity. Both the difficulty and the quantity of the duties were therefore below the average required for secretarial work at that level. There was therefore no manifest error of assessment in this case.
55 The appraisal report for 2003, namely, the only report favourable to the applicant, cannot change the overall negative assessment inasmuch as it expresses, in regard to a limited portion of 2003, merely the opinion of an acting head of department and not that of the head of department who, at that time, was on sick leave.
56 The defendant adds that, in departing from Ms Stefani’s negative opinion, Ms Taurelli was seeking to encourage the applicant notwithstanding the weaknesses in her performance and to avoid discouraging her for the future.
57 By the time Ms Stefani returned to work after her period of sick leave and annual leave, the appraisal report at issue had become definitive and could therefore not be modified.
58 Moreover, Mr de Rooij made the criticisms of her very clear to the applicant at the meetings on 15 and 25 June 2004. According to the defendant, the applicant could not have been unaware of the criticisms made of her since 1995. In those circumstances, since the applicant had an opportunity to make observations, it cannot be argued that the ETF was in breach of the applicant’s rights of defence.
59 Finally, although the applicant did indeed have health problems, those problems were never held against her nor were they used to justify her dismissal. In any event, the professional shortcomings referred to existed before the deterioration in her health.
Findings of the Tribunal
60 The defendant’s argument that it has no legal obligation, whether under the Conditions of Employment or the applicant’s employment contract, to give reasons for the decision to dismiss, should be dealt with first.
61 It should be borne in mind in that regard that, according to settled case-law (Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22; Case T‑1/90 Pérez-Mínguez Casariego v Commission [1991] ECR II‑143, paragraph 73; Joined Cases T‑178/95 and T‑179/95 Piccioloand Calò v Committee of the Regions [1997] ECR‑SC I‑A‑51 and II‑155, paragraph 33; Case T‑351/99 Brumter v Commission [2001] ECR‑SC I‑A‑165 and II‑757, paragraph 28; Case T‑11/03 Afari v ECB [2004] ECR‑SC I‑A‑65 and II‑267, paragraph 37; Case T‑281/01 Huygens v Commission [2004] ECR‑SC I‑A-203 and II‑903, paragraph 105; and Case T‑171/05 Nijs v Court of Auditors [2006] ECR‑SC I‑A‑0000 and II‑0000, paragraph 36), the obligation to state reasons constitutes an essential principle of Community law which may be derogated from only for compelling reasons. The purpose of the obligation is, first, to make it possible for the person concerned to ascertain whether the act adversely affecting him is well founded and to assess whether to bring an action and, second, to make judicial control possible.
62 That principle, set out in Article 253 EC and reiterated in the second paragraph of Article 25 of the Staff Regulations, forms part of the rights and obligations of officials referred to in Article 11 of the Conditions of Employment. The Court held, in that regard, in Joined Cases 43/59, 45/59 and 48/59 Von Lachmüller and Others v Commission [1960] ECR 463, 475, and Case 44/59 Fiddelaar v Commission [1960] ECR 535, 547, that the competent authority must state, in terms which are specific and capable of being challenged, the grounds which led it to terminate unilaterally the contract of employment concluded between the institution and a member of its staff.
63 It is true that in Schertzer v Parliament (paragraphs 38 to 40), the Court reached a different conclusion in regard to the termination of a contract of temporary employment on the basis of Article 47 of the Conditions of Employment in the version applicable to the facts in that case. The Court found that the employment of temporary staff is to cease, where the contract is for an indefinite period, at the end of the period of notice stipulated in the contract, in accordance with Article 47(2) of the Conditions of Employment. Thus, the justification for the unilateral termination of the contract – a measure which is expressly provided for by the latter provision, falls within the wide discretion of the competent authority and is acknowledged by the staff member at the time of his recruitment – is to be found in the contract of employment and therefore reasons do not have to be stated for it. In this respect the position of temporary staff is fundamentally distinct from that of an official under the Staff Regulations, so as to exclude the application by analogy of Article 25 of the Staff Regulations, notwithstanding the general reference to Articles 11 to 26 of the Staff Regulations contained in Article 11 of the Conditions of Employment.
64 That interpretation is confirmed by settled case-law (Case C‑18/91 P V v Parliament [1992] ECR I‑3997, paragraph 39; Speybrouck v Parliament, paragraph 90; 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; Case T‑70/00 Hoyer v Commission [2002] ECR‑SC I‑A‑247 and II‑1231, paragraph 55; Case T‑175/03 Schmitt v AER [2004] ECR‑SC I‑A‑211 and II‑939, paragraphs 57 and 58; Case T‑471/04 Kazantzoglou v AER [2006] ECR‑SC I‑A‑0000 and II‑0000, paragraphs 43 and 44; Case T‑10/02 Girardot v Commission [2006] ECR‑SC I‑A‑0000 and II‑0000, paragraph 72).
65 However, given the development of the law concerning the protection of workers against dismissal and the abusive recourse to successive fixed-term employment contracts or relationships and of the Community case-law itself as to the requirement of a formal statement of the reasons on which an act capable of creating adverse affects is based, which is viewed, as was pointed out in paragraph 61 above, as an essential principle of Community law, it must be considered whether the contract for an indefinite period of a member of the temporary staff may be terminated unilaterally without a statement of reasons.
66 Firstly, as can be seen from the second sentence in the preamble to and paragraph 6 of the general considerations of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP and implemented by Council Directive 1999/70/EC of 28 June 1999 (OJ 1999 L 175, p. 43), contracts of an indefinite duration constitute ‘the general form of employment relationship between employers and workers’, characterised by stable employment, whereas fixed-term employment contracts respond only in certain circumstances to the needs of both employers and workers. The Court has pointed out, in that regard, that the benefit of stable employment constitutes a major element in the protection of workers (Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 64; see also Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraph 62).
67 The fact that the contract at issue was concluded with a body governed by public international law is not such as to call into question the relevance of that finding in this case. In paragraph 54 of Adeneler and Others, the Court held that Directive 1999/70 and the abovementioned Framework Agreement can apply to fixed-term employment contracts and relationships concluded with public authorities and other public-sector bodies (see also Case C‑53/04 Marrosu and Sardino [2006] ECR I‑7213, paragraph 39, and Case C‑180/04 Vassallo [2006] ECR I‑7251, paragraph 32).
68 Permitting the employer to terminate an employment relationship of an indefinite duration without stating the reasons for the decision, subject only to a period of notice, would fail to take account of the very nature of employment contracts of indefinite duration, in that they guarantee some job security, and would dilute the distinction between that category of contract and fixed-term contracts. Although it is true that the stability of employment inherent in contracts of indefinite duration cannot be compared to that guaranteed by the Staff Regulations (see, to that effect, Speybrouck v Parliament, paragraph 90), since members of the temporary staff cannot expect to be granted a permanent contract of employment, the fact remains that the specific nature of employment contracts for an indefinite period, from the point of view of job security, constitutes an essential distinction between that category and fixed-term employment contracts.
69 Secondly, account must be taken of the existence of international standards fixing the minimum conditions necessary under the rule of law to prevent the unfair dismissal of workers. Thus, under the terms of Article 4 of Convention 158 of the International Labour Organisation (‘the ILO’) concerning Termination of Employment at the Initiative of the Employer, adopted on 22 June 1982, ‘[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’. Similarly, Article 24(a) of the Council of Europe’s revised European Social Charter (No. 163) adopted on 3 May 1996, which was, according to the explanatory report accompanying it, ‘inspired by ILO Convention No. 158’, guarantees ‘the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service’.
70 Article 24(a) itself inspired Article 30 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1). According to that article, ‘[e]very worker has the right to protection against unjustified dismissal, in accordance with Community law and national laws and practices’. The third indent of Article 41(2) of the Charter also provides generally, under the heading of the right to good administration, for ‘the obligation of the administration to give reasons for its decisions’.
71 The principal aim of the Charter, as is apparent from its preamble, is to reaffirm ‘the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the [ECHR], the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice … and of the European Court of Human Rights’ (see, to that effect, Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 38).
72 Moreover, by solemnly proclaiming the Charter of Fundamental Rights of the European Union, the Parliament, the Council and the Commission necessarily intended to give it particular significance, account of which must be taken in this case in interpreting the provisions of the Staff Regulations and the Conditions of Employment.
73 It should be observed in that regard that there is no overriding reason to exclude members of the temporary staff within the meaning of the Conditions of Employment from protection against unjustified dismissal, particularly when their contract is for an indefinite period or, if it is a fixed-term contract, they are dismissed before the expiry of the term.
74 In order to ensure a sufficient degree of protection to that effect, the persons concerned must be able to determine whether their legitimate interests have been respected or damaged and to assess whether it would be appropriate to initiate judicial proceedings, and the courts must be able to exercise their powers of review, which amounts to recognising an obligation on the part of the competent authority to state the reasons for its decisions.
75 It should also be added that recognition of an obligation on the part of the competent authority to state the reasons for its decisions does not prevent it enjoying broad discretion in regard to dismissal, and review by the Community Courts is therefore confined to ensuring that there has been no manifest error or misuse of powers (Case T‑79/98 Carrasco Benítez v EMEA [1999] ECR‑SC I‑A‑29 and II‑127, paragraph 55; Case T‑223/99 Dejaiffe v OHMI [2000] ECR‑SC I‑A‑277 and II‑1267, paragraph 53; and Case T‑7/01 Pyres v Commission [2003] ECR‑SC I‑A‑37 and II‑239, paragraphs 50 and 51).
76 Moreover, it should be noted that the terms of Article 47 of the Conditions of Employment do not preclude the considerations set out above inasmuch as Article 47(c)(i) merely requires a period of notice and fixes its length, without addressing the question whether the dismissal is justified.
77 In those circumstances, it is necessary to determine in this case, first, whether the decision to dismiss fulfils, as an essential procedural requirement, the obligation to state the reasons on which it is based and, second, with regard to whether those reasons are well founded, whether the ETF kept within reasonable bounds and did not exercise its discretion in a manifestly incorrect manner.
78 First, it follows from the case-law that the scope of the obligation to provide a formal statement of the reasons on which a measure is based must be assessed in the light of the specific circumstances, in particular the contents of the measure, the nature of the reasons relied on and the interest which the person to whom the measure is addressed may have in obtaining an explanation (Case T‑10/99 Vicente Nuñez v Commission [2000] ECR‑SC I‑A‑47 and II‑203, paragraph 41, and Joined Cases T‑338/00 and T‑376/00 Morello v Commission [2002] ECR‑SC I‑A‑301 and II‑1457, paragraph 46). In addition, in order to assess whether the statement of reasons is adequate, that statement must be placed in the context in which the contested measure was adopted (Case T‑283/97 Thinus v Commission [1999] ECR‑SC I‑A‑69 and II‑353, paragraph 77, and Morello v Commission, paragraph 47).
79 In respect of a decision to dismiss a member of the temporary staff employed under a contract for an indefinite period, it is particularly important that the reasons on which the decision is based should, as a general rule, be set out in writing, preferably in the text of the decision itself. It is that measure alone, the legality of which must be assessed as at the date on which it was adopted, which gives tangible form to the institution’s decision. However, the obligation to state the reasons for the dismissal may also be regarded as fulfilled if the person concerned was duly informed, in the course of meetings with his superiors, of those reasons and if the decision of the AECCE was adopted shortly after those meetings. The AECCE may also, if necessary, supplement the statement of reasons in its reply to a complaint lodged by the person concerned.
80 In this case, it is apparent from the file that the applicant was informed in the course of the meetings she had with Mr de Rooij on 15 and 25 June 2004 of the reasons, based on alleged incompetence, for which it was planned to terminate her contract as a member of the temporary staff. Further details were usefully provided by the AECCE in its reply to the applicant’s complaint, which permitted her to assess whether or not the decision to dismiss was well founded and giving her an opportunity to bring her action before the Tribunal.
81 Consequently, the plea based on an infringement of the obligation to state reasons must be rejected.
82 Second, with regard to whether or not the reasons justifying the decision to dismiss are well founded, the ETF’s assessment of the interests of the service must be examined, but only to the extent of making sure, as was pointed out in paragraph 75 of this judgment, that there has been no manifest error.
83 It is also apparent from settled case-law that when taking a decision concerning the situation of a member of temporary staff, the competent authority must take account of all the factors which may affect its decision and, in particular, the interests of the member of temporary 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 (Pyres v Commission, paragraph 51, and Case T‑258/03 Mausolf v Europol [2005] ECR‑SC I‑A‑45 and II‑189, paragraph 49; see also 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 EESC [1996] ECR‑SC I‑A‑167 and II‑503, paragraph 52; and Dejaiffe v OHMI, paragraph 53).
84 In this case, the ETF relied solely on the applicant’s ‘overall’ incompetence as justification for the dismissal, that incompetence being attested to by the accumulation of performance evaluations unfavourable to the applicant or critical of her performance. According to the defendant, the performance evaluation report for 2003, the only one favourable to the applicant, was not sufficient to overcome that general tendency.
85 Although, throughout her career, the applicant was often criticised for shortcomings such as a lack of attention, of accuracy or of speed in carrying out her duties, it is apparent from the probationary report and the performance evaluation reports that, contrary to what the defendant alleges, the assessment made of the applicant’s abilities was generally satisfactory, or even good (for 1997 to 2000 and for 2003).
86 It is true that highly negative assessments were made by two persons in particular, namely:
– Mr Hillenkamp, Deputy Director, whose secretary the applicant was from January 2002 to January 2003 and who, in the interim performance evaluation report of 9 July 2002, considered that she did not sufficiently meet the requirements of her position; equally, in a draft performance appraisal for 2002, he found a lack of reliability and serious deficiencies in almost every aspect of the duties she performed;
– Ms Stefani, Head of Department, whose secretary the applicant also was from 1 February 2003 to 30 June 2004.
87 First, however, not only was the draft performance appraisal for 2002 never finalised but the assessment made by the other deputy director, Mr Pescia, for whom the applicant also worked during the same period, was much less severe, considering the applicant’s performance of her tasks to be fair, or even good, although he found that she had some shortcomings which he attributed, in part, to an excessive workload.
88 Second, the performance appraisal report for 2003, drawn up on 18 March 2004 by Ms Taurelli, for whom the applicant had also worked, and signed by Mr de Rooij on 31 March 2004, that is to say, about two months before the interviews in the course of which he informed the applicant of his intention to terminate her contract, was particularly favourable to her. According to that appraisal, she ‘has achieved her key objectives set for 2003 … has been able to perform her tasks effectively and efficiently with respect of deadlines … has shown capacity to concentrate on her work even while having to deal with several issues at the same time … has made a substantial effort to improve her memory … has improved her IT skills … maintains good, friendly but respectful relations with her peers and fellow colleagues’.
89 The Tribunal cannot accord to unilateral declarations, annexed to the defendant’s rejoinder, which were drafted after the present action was lodged and which seek to supplement the applicant’s performance appraisal reports or even to show that they were wrong in their overall assessment, the same value as that attributed to the reports themselves, since the reports were drawn up following an inter partes procedure the purpose of which was, precisely, to permit an objective assessment of the abilities of the member of temporary staff concerned.
90 Moreover, there is nothing in the file to indicate that the applicant’s professional performance suddenly deteriorated between the time Ms Taurelli drew up her last appraisal report in March 2004, praising her for performing her duties efficiently and in a timely manner, and the adoption of the decision to dismiss less than three months later. The fact that that decision was adopted shortly after the appraisal report makes the decision all the more open to challenge.
91 Without it being necessary to examine the claims alleging breach of the rights of the defence and of the duty of care, or the other pleas put forward by the applicant, it follows that the decision to dismiss is vitiated by a manifest error of assessment and must therefore be annulled.
92 The annulment of a measure by the courts has the effect of retroactively eliminating that measure from the legal system (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 30, and Case T‑10/02 Girardot v Commission [2004] ECR‑SC I‑A‑109 and II‑483, paragraph 84). Where the measure annulled has already been carried out, the abolition of its effects means that the applicant must be restored to the legal position he was in before it was adopted (Case 22/70 Commission v Council [1971] ECR 263, paragraph 60, and Girardot v Commission, paragraph 84).
93 However, without there being any need in this case to consider the possibility of an entitlement on the part of the worker to be re-employed in the event of unlawful dismissal, it must be noted that the applicant declared at the hearing that her health had considerably deteriorated and that she would not be physically capable of returning to work at the ETF. In those circumstances, so as to give useful effect, in the interest of the applicant, to the annulment of the decision to dismiss, the Tribunal finds that it should exercise the unlimited jurisdiction conferred on it in disputes of a financial nature and call upon the defendant to seek an equitable solution which adequately protects Ms Landgren’s rights (see, to that effect, Case C‑242/90 P Commission v Albani and Others [1993] ECR I‑3839, paragraph 13, and Girardot v Commission, paragraph 89).
94 The parties are therefore called upon, first of all, to seek an agreement on equitable monetary compensation for the applicant’s unlawful dismissal and then, within three months of the delivery of this judgment, to inform the Tribunal of the amount so agreed or, failing agreement, to put their submissions on the amount of compensation before the Tribunal.
95 In assessing the amount of that compensation, account will have to be taken in particular of the fact that Ms Landgren received an unemployment allowance after her dismissal and of the age at which, having regard to her state of health, she could normally have claimed a retirement pension.
On those grounds,
THE TRIBUNAL (Full Court)
hereby:
1. Annuls the decision of the European Training Foundation of 25 June 2004 terminating Ms Landgren’s contract for an indefinite period as a member of temporary staff;
2. Orders the parties to forward to the Tribunal, within three months of the delivery of this judgment, either the jointly agreed amount of monetary compensation resulting from the illegality of the decision of 25 June 2004 or, failing agreement, their submissions on the amount of compensation;
3. Reserves the costs.
Mahoney | Kreppel | Van Raepenbusch |
Boruta | Kanninen Tagaras | Gervasoni |
Delivered in open court in Luxembourg on 26 October 2006.
The text of this decision and of the decisions of the Community Courts cited herein but not yet published in the European Court Reports are available on the Court of Justice’s website: www.curia.europa.eu