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Language of document : ECLI:EU:T:2015:877

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

24 November 2015

Case T‑670/13 P

European Commission

Luigi D’Agostino

(Appeal — Cross-appeal — Civil service — Member of the contract staff — Decision not to renew — Duty to have regard for the welfare of officials — Infringement of Article 12a(2) of the Staff Regulations — Obligation to state reasons — Distortion of the file)

Appeal: brought against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 23 October 2013 in D’Agostino v Commission (F‑93/12, ECR-SC, EU:F:2013:155), seeking to have that judgment set aside.

Held: The judgment of the European Union Civil Service Tribunal (Third Chamber) of 23 October 2013 in D’Agostino v Commission (F 93/12) is set aside inasmuch as the Civil Service Tribunal erred in its application of the duty to have regard for the welfare of officials. The main appeal is dismissed as to the remainder. The judgment in D’Agostino v Commission is set aside inasmuch as the Civil Service Tribunal did not rule on the first limb of the second plea in law, which it distorted. The cross-appeal is dismissed as to the remainder. The matter is remitted to the Civil Service Tribunal. The costs are reserved.

Summary

1. Officials — Members of the contract staff — Recruitment — Renewal of a fixed-term contract — Administration's discretion — Administration's duty to have regard for the interests of officials — Account to be taken of the interests of the member of staff concerned and of the service — Judicial review — Limits

(Conditions of Employment of Other Servants, Arts 2 and 3a)

2. Officials — Members of the contract staff — Recruitment — Renewal of a fixed-term contract — Grounds for non-renewal — Burden of proof

3. Officials — Psychological harassment — Non-renewal of a fixed term contract on a legitimate ground unconnected with any harassment — Infringement of Article 12a(2) of the Staff Regulations — None

(Staff Regulations, Art. 12a(2))

1. The reasoning developed by the General Court in relation to staff recruited pursuant to Article 2 of the Conditions of Employment of Other Servants, that is, members of the temporary staff, concerning the scope of the duty to have regard for welfare, can be applied a fortiori to staff recruited under Article 3a of those conditions, that is, members of the contract staff.

In this regard, it is apparent from the case-law that the possibility of renewing the contract of a member of the temporary staff is merely an option left to the discretion of the competent authority, since the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks, on condition that the staff are assigned in the interest of the service. In addition, the competent authority is required, when it takes a decision concerning the situation of a member of staff, to take into consideration all the factors which may affect its decision, that is, not only the interest of the service, but also, in particular, that of the member of staff concerned. That is a consequence of the administration’s duty to have regard for the welfare of its staff, which reflects the balance of the reciprocal rights and obligations established by the Staff Regulations and, by analogy, the Conditions of Employment of Other Servants, in the relationship between a public authority and its staff. In any event, in view of the broad discretion conferred on the institutions in that context, review by the Court is limited to ascertaining that there has been no manifest error or misuse of powers.

In this regard, the Conditions of Employment of Other Servants does not impose a prior obligation on the administration to examine the possibility of reassigning a member of the temporary staff, either where a contract of indefinite duration is terminated or where a contract of fixed duration is not renewed.

If the administration does not have a prior obligation to examine the possibility of reassigning members of the temporary staff employed with a view to occupying a post included in the list of posts, it cannot be otherwise in relation to members of the contract staff, who are not assigned to a post appearing in that list. On the other hand, even for this category of staff, despite the fact that they do not occupy a post appearing in the list, the administration is required, when it takes a decision concerning the situation of a member of staff, to take into consideration all the factors which may affect its decision, that is, not only the interest of the service, but also, in particular, that of the member of staff concerned.

(see paras 32-34)

See:

Judgment of 29 June 1994 in Klinke v Court of Justice, C‑298/93 P, ECR, EU:C:1994:273, paragraph 38

Judgments of 18 April 1996 in Kyrpitsis v ESC, T‑13/95, ECR-SC, EU:T:1996:50, paragraph 52; of 15 October 2008 in Potamianos v Commission, T‑160/04, ECR-SC, EU:T:2008:438, paragraph 30; 8 September 2009 in ETF v Landgren, T‑404/06 P, ECR, EU:T:2009:313, paragraph 162 and the case-law cited therein; 4 December 2013 in ETF v Schuerings, T‑107/11 P, ECR-SC, EU:T:2013:624, paragraph 98; 4 December 2013 in ETF v Michel, T‑108/11 P, ECR-SC, EU:T:2013:625, paragraph 99, and 21 May 2014 in Commission v Macchia, T‑368/12 P, ECR-SC, EU:T:2014:266, paragraph 57

2. It is for the party asserting that a decision not to renew a fixed-term contract is based on reasons other than those indicated by the administration in the contested decision to prove that that is the case.

(see para. 66)

See:

Order of 13 January 2014 in Lebedef v Commission, T‑116/13 P and T‑117/13 P, ECR-SC, EU:T:2014:21, paragraph 41

3. Article 12a(2) of the Staff Regulations, under which an official who has been the victim of psychological or sexual harassment is not to suffer any prejudicial effects on the part of the institution, and an official who has given evidence on psychological or sexual harassment is not to suffer any prejudicial effects on the part of the institution, provided that he has acted honestly, does not prevent the administration terminating a contractual relationship on a legitimate ground unconnected with any harassment.

(see paras 59, 60)