JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

13 June 2012

Case F‑41/11

Dana Mocová

v

European Commission

(Civil service — Members of the temporary staff — Non-renewal of a fixed-term contract — Discretion — Article 8 of the CEOS — Article 4 of the Decision of the Director-General of OLAF of 30 June 2005 on a new policy for the engagement and use of OLAF’s temporary agents — Maximum duration of temporary staff contracts)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Ms Mocová seeks annulment of the decision of the acting Director-General of the European Anti-Fraud Office (OLAF) of 11 February 2011 rejecting her request for extension of her temporary staff contract.

Held:      The action is dismissed. Each party is to bear its own costs.

Summary

1.      Officials — Action against an implied decision rejecting a request — Plea in law based on lack of a statement of reasons — Taking into account of the statement of reasons contained in the decision rejecting the complaint

(Staff Regulations, Arts 90 and 91; Conditions of Employment of Other Servants, Art. 46)

2.      Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Judicial review — Limits

(Conditions of Employment of Other Servants, Arts 8 and 47(1)(b))

3.      Officials — Members of the temporary staff — Recruitment — Conclusion of a contract to fill temporarily a permanent post — Conditions

(Staff Regulations, Art. 1a(1); Conditions of Employment of Other Servants, Arts 2(b), 3 to 5 and 8, second para.)

1.      In view of the evolving nature of the pre-litigation procedure, where the administration’s decision rejecting a complaint contains a statement of reasons which was obviously lacking in the implied decision rejecting a request, against which the complaint was directed, it is the statement of reasons contained in the decision rejecting the complaint which must be taken into account in the review of legality of the original act adversely affecting an official, since that statement of reasons is deemed to supplement that act. None the less, it is certainly the legality of the original act adversely affecting an official that is being examined, in the light of the reasons contained in the decision rejecting the complaint.

(see paras 21, 38)

See:

9 December 2009, T‑377/08 P Commission v Birkhoff, paras 58 and 59 and the case-law cited therein

2.      A member of the temporary staff who is the holder of a fixed-term contract does not, in principle, have any right to the renewal of his contract, which is a mere option, subject to the condition that such renewal is consistent with the interest of the service. By contrast with officials, whose security of tenure is guaranteed by the Staff Regulations, members of the temporary staff are subject to different conditions based on the contract of employment entered into with the institution concerned. It is clear from Article 47(1)(b) of the Conditions of Employment of Other Servants that the duration of the employment relationship between an institution and a member of the temporary staff engaged for a fixed period is, necessarily, governed by the conditions laid down in the contract concluded between the parties. Moreover, the administration has a broad discretion with regard to the renewal of a contract. Consequently, 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 context, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken on the basis of that assessment, the evidence, which it is for the staff member to adduce, must be sufficient to make the findings of the administration implausible. In other words, the existence of a manifest error is not established if, despite the evidence adduced by the staff member, the disputed assessment may still be accepted as justified and consistent.

(see paras 42-44)

See:

12 December 1996, T‑380/94 AIUFFASS and AKT v Commission, para. 59; 17 October 2002, T‑330/00 and T‑114/01 Cocchi and Hainz, para. 82; 6 February 2003, T‑7/01 Pyres v Commission, para. 64; 12 February 2008, T‑289/03 BUPA and Others v Commission, para. 221

7 July 2009, F‑54/08 Bernard v Europol, para. 44; 23 November 2010, F‑8/10 Gheysens v Council, para. 75

3.      It is clear from a combined reading of Article 1a(1) of the Staff Regulations and Articles 2 to 5 of the Conditions of Employment of Other Servants that permanent posts in the institutions are, in principle, intended to be filled by officials and that it is therefore only by way of exception that such posts may be filled by staff covered by the Conditions of Employment of Other Servants. Thus, although Article 2(b) of those Conditions of Employment expressly provides that temporary staff may be engaged to fill a permanent post, it also stipulates that that may occur only temporarily. Moreover, the second paragraph of Article 8 of the Conditions of Employment of Other Servants provides that temporary staff within the meaning of Article 2(b) are not to be engaged for more than four years and their contracts may be renewed not more than once for a maximum period of two years. At the end of that time, they must cease to be employed as temporary staff, either by termination of their employment or by their appointment as officials in accordance with the Staff Regulations. That exception to the principle that permanent posts are to be filled by appointing officials may apply only in order to meet the needs of the service in a given case.

(see para. 48)

See:

21 September 2011, T‑325/09 P Adjemian and Others v Commission, para. 79 and the case-law cited therein