JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

7 July 2010

Joined Cases F‑116/07, F‑13/08 and F‑31/08

Stanislovas Tomas

v

European Parliament

(Civil service — Members of temporary staff — Article 2(c) of the Conditions of Employment of Other Servants of the European Communities — Termination of employment — Relationship of trust — Prior consultation of the Parliament’s Staff Committee — None)

Applications: brought under Articles 236 EC and 152 EA, in which Mr Tomas essentially seeks, principally, annulment of the decision of the Parliament’s authority authorised to conclude contracts of engagement of 26 March 2007 dismissing him with effect from 1 July 2007; alternatively, annulment of the same authority’s decision of 10 July 2007 dismissing him with effect from 16 October 2007; in any event, an order for the Parliament to pay him damages for the material and non-material losses he claims to have suffered as a result of his dismissal.

Held: Applications F‑116/07 and F‑13/08 are dismissed. The Parliament is ordered to pay the applicant the sum of EUR 1 000 for the non-material damage he has suffered. The remainder of the application in F‑31/08 is dismissed. Each party is ordered to bear its own costs relating to all of the actions F‑116/07, F‑13/08 and F‑31/08.

Summary

1.      Officials — Actions — Prior administrative complaint — Mandatory — Action brought prior to rejection of complaint — Inadmissibility

(Staff Regulations Art. 91(2))

2.      Acts of the institutions — General obligation to inform the addressees of measures of the judicial remedies available and of the time-limits — None

3.      Officials — Members of the temporary staff — Members of the temporary staff covered by Article 2(c) of the Conditions of Employment of Other Servants — Member of the temporary staff assigned to a political group in the Parliament — Decision to dismiss

(Conditions of Employment of Other Servants, Art. 47(c)(i))

4.      Officials — Members of the temporary staff — Members of the temporary staff covered by Article 2(c) of the Conditions of Employment of Other Servants — Member of the temporary staff assigned to a political group in the Parliament — Breakdown in relationship of trust — Decision to dismiss

(Conditions of Employment of Other Servants, Art. 2(c))

5.      Officials — Members of the temporary staff — Members of the temporary staff covered by Article 2(c) of the Conditions of Employment of Other Servants — Decision to dismiss — Obligation to inform the Staff Committee in advance

(Conditions of Employment of Other Servants, Art. 2(c))

6.      Officials — Members of the temporary staff — Members of the temporary staff covered by Article 2(c) of the Conditions of Employment of Other Servants — Decision to dismiss — Obligation to state the reasons on which the decision is based

(Conditions of Employment of Other Servants, Art. 2(c))

7.      Officials — Members of the temporary staff — Members of the temporary staff covered by Article 2(c) of the Conditions of Employment of Other Servants — Need for a relationship of mutual trust — Judicial review — Scope

(Conditions of Employment of Other Servants, Art. 2(c))

8.      Officials — Members of the temporary staff — Procedure for establishing professional incompetence of officials — Not applicable to other staff

(Staff Regulations Art. 51(1))

9.      Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Administration’s discretion

(Conditions of Employment of Other Servants, Arts 47(c) and 49(1))

10.    Officials — Members of the temporary staff — Administration’s duty to have regard for the interests of its staff — Principle of sound administration — Scope — Obligation to reassign a member of the temporary staff if he proves incompetent in the performance of his duties — None

(Conditions of Employment of Other Servants, Art. 2(c))

11.    Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Article 6 of the European Convention on Human Rights not applicable

12.    Officials — Members of the temporary staff — Administration’s duty to have regard for the interests of its staff — Obligation to address to an official or member of staff an individual decision worded in a language of which he has a thorough knowledge

13.    Officials — Non-contractual liability of the institutions — Conditions — Administrative fault

(Art. 236 EC)

1.      It is imperative that any action brought against an act of the appointing authority adversely affecting an official should, as a general rule, be preceded by a complaint prior to action which has been rejected by an express or implied decision. An action brought before that pre-litigation procedure is complete is, by its premature nature, inadmissible under Article 91(2) of the Staff Regulations.

(see para. 64)

See:

T‑90/07 P and T‑99/07 P Belgium and Commission v Genette [2008] ECR II‑3859, para. 105 and the case-law cited therein

2.      There is no express provision of EU law which imposes on the institutions any general obligation to inform the addressees of measures of the judicial remedies available or of the time-limits for availing themselves thereof.

(see para. 87)

See:

T‑146/04 Gorostiaga Atxalandabaso v Parliament [2005] ECR II‑5989, para. 131; T‑390/07 P Speiser v Parliament [2008] ECR‑SC I‑B‑1‑63 and II‑B‑1‑427, para. 31

3.      The procedure for evaluating a member of the temporary staff and the procedure leading to the decision to terminate his contract are two separate procedures.

It follows from Article 47(c)(i) of the Conditions of Employment of Other Servants that the contract of a member of the temporary staff engaged for an indefinite period terminates at the end of the period of notice stipulated in the contract. No reference is made in that provision to any obligation to base the termination of the contract on the staff reports of the staff member concerned, unlike the situation with an official, who, under Article 51 of the Staff Regulations, can be dismissed only on the basis of consecutive periodical reports showing professional incompetence.

(see paras 91-92)

4.      Observance of the rights of the defence in all proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person is a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the procedure in question.

In accordance with that principle, the person in question must have been given the opportunity, before the decision concerning him was adopted, to make known his views on the truth and relevance of the facts and circumstances on which that decision was based.

Because of the specific nature of the duties performed for a political group and the need to maintain, in such a political environment, a relationship of mutual trust between the group and the officials seconded to it, infringement of the rights of the defence cannot reasonably be pleaded in the case of a decision to dismiss a member of the temporary staff recruited to a political group in the Parliament on the basis of Article 2(c) of the Conditions of Employment of Other Servants.

That exception to the principle of observance of the rights of the defence must apply whenever the need to maintain a relationship of trust is at issue.

(see paras 98, 99, 101)

See:

44/69 Buchler v Commission [1970] ECR 733, para. 9; 234/84 Belgium v Commission [1986] ECR 2263, para. 27; C‑458/98 P Industrie des poudres sphériques v Council [2000] ECR I‑8147, para. 99; C-288/96 Germany v Commission [2000] ECR I‑8237, para. 99; C‑344/05 P Commission v De Bry [2006] ECR I‑10915, para. 37

T‑45/90 Speybrouck v Parliament [1992] ECR II‑33, para. 94

judgment of 24 February 2010 in F‑89/08 P v Parliament, para. 32

5.      Under Article 10(1) of the Parliament’s internal rules on the recruitment of officials and other members of staff, ‘prior to any procedure for the termination of the contract of a member of the temporary staff recruited to a political group the Staff Committee must be duly informed. It may hear the person concerned and make an approach to the authority empowered to conclude contracts of employment’.

Article 10(1) of the Parliament’s internal rules thus makes it a rule that the Staff Committee must be informed, while at the same time stating merely that it must be informed ‘prior’ to the ‘procedure for the termination of the contract of a member of the temporary staff’, without imposing any time-limit for the authority authorised to conclude contracts of engagement to comply with that obligation. Notification of the temporary staff member of the decision to dismiss him is a crucial stage in the ‘procedure for the termination of the contract of a member of the temporary staff’. Consequently, under the terms of that provision, the authority authorised to conclude contracts of engagement has to inform the Staff Committee before notifying the person concerned of the decision to dismiss him.

Failure to observe procedural rules relating to the adoption of a measure, laid down by the competent institution itself, constitutes a breach of essential procedural requirements within the meaning of the second paragraph of Article 230 EC, which may be considered by the Community judicature, even of its own motion. A breach of essential procedural requirements within the meaning of the second paragraph of Article 230 EC, which are essential for legal certainty, results in the annulment of the vitiated measure, without any need to prove harm. However, a mere procedural irregularity justifies the annulment of a measure only if it is shown that, in the absence of such irregularity, the measure might have been different. It must therefore be ascertained whether failure to comply with the obligation to inform the Staff Committee of a procedure to terminate the contract of a member of the temporary staff must be classified as a breach of essential procedural requirements or merely a procedural irregularity.

It does not follow from the terms of the internal rule in question that the Staff Committee must issue its opinion for decisions terminating the employment contracts of members of the temporary staff recruited on the basis of Article 2(c) of the Conditions of Employment of Other Servants to be valid. If that were the case, such a provision would have to fix the time-limit within which the Staff Committee is obliged to state its views. The Staff Committee cannot, by issuing a negative opinion or taking no action, prevent the termination of an employment contract which complies with Article 47(2)(a) of the Conditions of Employment of Other Servants.

Failure to comply with the procedural requirement of informing the Staff Committee in advance as required by the Parliament’s internal rules, even though it is a mandatory requirement for the institution, which adopted it voluntarily, cannot be classified as a breach of an essential procedural requirement since that failure, although constituting an administrative fault, could not have had a decisive effect on the conduct of the procedure resulting in the termination of the staff member’s employment contract.

Infringement of the obligation to inform the Staff Committee in advance is not capable of entailing the annulment of the dismissal decision. Such an infringement constitutes an administrative fault which may incur the institution’s non-contractual liability.

(see paras 106, 107, 112, 113, 118-120, 122, 124-126)

See:

68/86 United Kingdom v Council [1998] ECR 855, paras 48 and 49; C‑286/95 P Commission v ICI [2000] ECR I‑2341, para. 52

T‑465/93 Consorzio gruppo di azione locale ‘Murgia Messapica’ v Commission [1994] ECR II‑361, para. 56; T‑123/95 B v Parliament [1997] ECR‑SC I‑A‑245 and II‑697, paras 34 and 39; T‑228/99 and T‑233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II‑435, para. 143 and the case-law cited therein

F‑73/07 Doktor v Council [2008] ECR‑SC I‑A‑1‑91 and II‑A‑1‑479, para. 88

6.      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 authority authorised to conclude contracts of engagement was adopted shortly after those meetings. That authority may also, if necessary, supplement the statement of reasons in its reply to a complaint lodged by the person concerned.

(see para. 133)

See:

F‑1/05 Landgren v ETF [2006] ECR‑SC I‑A‑1‑123 and II‑A‑1‑459, para. 79

7.      The Parliament’s political group is solely responsible for deciding on the conditions it deems necessary for the continuation of the relationship of mutual trust which determined the engagement of a member of the temporary staff on the basis of Article 2(c) of the Conditions of Employment of Other Servants.

The existence of such a relationship of trust is not based on objective factors and by its very nature cannot be subject to judicial review. The impossibility of reviewing the existence or loss of a relationship of trust extends in part to review of grounds advanced to justify the non-existence or loss of that relationship.

(see paras 147-149)

See:

B v Parliament, para. 73; T‑406/04 Bonnet v Court of Justice [2006] ECR‑SC I‑A‑2‑213 and II‑A‑2‑1097, paras 50 and 51

8.      The provisions of the Staff Regulations which are applicable by analogy to other staff are expressly mentioned in the Conditions of Employment of Other Servants. The Conditions of Employment of Other Servants do not contain any provision stating that Article 51(1) of the Staff Regulations, relating to the treatment of officials’ incompetence, is applicable by analogy to members of the temporary staff.

(see paras 154-155)

9.      Even in the event of misconduct capable of justifying the dismissal of a member of the temporary staff on disciplinary grounds, the authority authorised to conclude contracts of engagement is under no obligation to initiate a disciplinary procedure against the staff member concerned rather than using the possibility of unilaterally terminating the contract provided for in Article 47(c) of the Conditions of Employment of Other Servants. It is only if the authority intends to dismiss a member of the temporary staff without notice, in a serious case of failure to comply with his obligations, that the disciplinary procedure provided for in Annex IX to the Staff Regulations of Officials, which applies by analogy to members of the temporary staff, should be initiated, as provided for in Article 49(1) of the Conditions of Employment of Other Servants.

(see para. 158)

See:

F‑74/06 Longinidis v Cedefop [2008] ECR‑SC I‑A‑1‑125 and II‑A‑1‑655, para. 116; F‑29/08 Y v Commission [2009] ECR‑SC I‑A‑1‑393 and II‑A‑1‑2099, para. 111

10.    The administration’s duty to have regard to the welfare of its employees reflects the balance of reciprocal rights and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants. That duty, together with the principle of proper administration, implies in particular that when the authority takes a decision concerning the situation of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned.

The administration is not obliged to offer to re-assign a member of the temporary staff whose professional performance is deemed unsatisfactory. If the administration’s duty to have regard for the interests of its employees had the effect of transforming into an obligation the option of assigning the staff member concerned to another post, it would alter the balance of rights and obligations established by the Staff Regulations in the relationship between the official authority and civil servants, whereas the purpose of the Staff Regulations is to reflect that balance.

That applies if a contract referred to in Article 2(c) of the Conditions of Employment of Other Servants is terminated for loss of trust, since mutual trust is, according to the case-law, an essential element of such a contract.

Furthermore, the administration has a wide discretion in deciding on the abilities which it deems necessary, in the interest of the service, for the performance of particular duties, and that discretion is even wider in the case of the contracts referred to in Article 2(c) of the Conditions of Employment of Other Servants.

(see paras 165, 166, 168)

See:

417/85 Maurissen v Court of Auditors [1987] ECR 551, para. 12

Doktor v Council, para. 41

11.    It is evident from the very wording of Article 6(1) of the European Convention on Human Rights that it lays down the principle of impartiality in judicial proceedings, without determining how that principle should be applied in an administrative procedure.

An EU institution cannot be regarded as a ‘tribunal’ within the meaning of Article 6(1) of the Convention. Consequently, Article 6(1) does not apply to a decision by which the authority authorised to conclude contracts of engagement terminates the contract of a member of the temporary staff.

(see paras 172-174)

See:

100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, para. 7

T‑348/94 Enso Española v Commission [1998] ECR II‑1875, para. 56

12.    Even though the Staff Regulations do not contain any rules on the use of languages by the institutions in decisions addressed to their staff, the institutions are under a duty to have regard for the welfare of their staff and therefore to address to an official or member of the temporary staff an individual decision worded in a language of which he has a thorough knowledge. That is particularly true where the decision taken by the institution may have repercussions on the employment of that official or temporary staff member.

(see para. 199)

See:

T‑197/98 Rudolph v Commission [2000] ECR‑SC I‑A‑55 and II‑241, para. 46

13.    For an action for compensation brought under Article 236 EC to be well founded, a series of conditions must be met, namely the conduct of which the institutions are accused must have been unlawful, the damage must be real and a causal connection must exist between that conduct and the damage in question.

The Parliament’s failure to comply with its obligation to inform the Staff Committee, prior to adopting a decision to dismiss a member of the temporary staff, that a procedure to terminate his contract was about to be initiated does not justify the annulment of the dismissal decision, but the procedural irregularity constitutes an administrative fault such as to render the institution liable.

That administrative fault necessarily caused the staff member to feel that he had lost the opportunity to benefit from the possible intervention of the Staff Committee on his behalf, thereby inflicting on him unquestionable non-material harm.

(see paras 213-215)

See:

C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, para. 42; C‑348/06 P Commission v Girardot [2008] ECR I‑833, para. 52

B v Parliament, para. 39