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Corte di giustizia UEsentenza

Corte di giustizia UE n. 2667/2006

ECLI:EU:T:2006:66
Testo integrale del provvedimento

Testo integrale del provvedimento

62004TJ0471_EN

[OSCURATO:PERSONA] part

[OSCURATO:PERSONA] T‑471/04,

[OSCURATO:PERSONA], formerly a member of the temporary staff of the [OSCURATO:PERSONA] for Reconstruction, residing in Ioannina (Greece), represented by S. Pappas, lawyer, applicant, v [OSCURATO:PERSONA] for Reconstruction (EAR), represented by J.-N.

Louis, S. Orlandi,

X. Martin and C. Manolopoulos, lawyers, with an address for service in Luxembourg, defendant, APPLICATION for annulment of the decision of the EAR of 26 February 2004 to terminate the applicant’s contract of employment,

[OSCURATO:PERSONA] [OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of H. [OSCURATO:PERSONA], [OSCURATO:PERSONA], P. Mengozzi and

I. Wiszniewska‑Białecka, Judges, Registrar:

I. Natsinas, Administrator, having regard to the written procedure and further to the hearing on 17 November 2005, gives the following [OSCURATO:PERSONA] context and the facts at the origin of the dispute

1. [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] (EC) No 2667/2000 of 5 December 2000 on the [OSCURATO:PERSONA] for Reconstruction (OJ 2000 L 306, p. 7) provides: ‘[OSCURATO:PERSONA] staff shall be subject to the rules and regulations applicable to officials and other servants of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA], in agreement with the Commission, shall adopt the necessary implementing rules. [OSCURATO:PERSONA] staff shall consist of a strictly limited number of officials assigned or seconded by the Commission or [OSCURATO:PERSONA] to carry out management duties.

The remaining staff shall consist of other employees recruited by the [OSCURATO:PERSONA] for a period strictly limited to its requirements.’

2. [OSCURATO:PERSONA] 47 of the Conditions of employment of other servants of the [OSCURATO:PERSONA], in the version in force until 30 April 2004 and applicable to the facts of the present case, (‘the CEOS’) states: ‘Apart from cessation on death, the employment of temporary staff shall cease: …

2. Where the contract is for an indefinite period: (a) at the end of the period of notice stipulated in the contract; the length of the period of notice shall not be less than two days for each completed month of service, subject to a minimum of 15 days and a maximum of three months.

In the case of a servant within the meaning of [OSCURATO:PERSONA] 2(d) 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; …’

3. The applicant, [OSCURATO:PERSONA], was recruited by the [OSCURATO:PERSONA] for Reconstruction (EAR) as a member of the temporary staff within the meaning of [OSCURATO:PERSONA] 2(a) of the CEOS, starting on 7 November 2001, for a fixed period of 18 months, in accordance with [OSCURATO:PERSONA] 4 of his contract of employment (‘the contract’).

4. [OSCURATO:PERSONA] 2 of the contract stipulates that the applicant is to be employed as an administrative assistant and that the place of employment is to be Podgorica (Montenegro).

5. [OSCURATO:PERSONA] 5(b) of the contract provides: ‘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 [CEOS], subject to the conditions laid down in those articles.

For the purposes of [OSCURATO:PERSONA] 47(1)(b) of the [CEOS], the period of notice shall be [three] months.

Where the contract has been renewed, the period of notice shall be one month for each year of service, up to a maximum of six months.’

6. On 1 March 2002, the contracting parties amended, by [OSCURATO:PERSONA] 2 to the contract, [OSCURATO:PERSONA] 2 of the contract as follows: ‘The staff member shall be employed as Head of the [OSCURATO:PERSONA]. The place of employment shall be [OSCURATO:PERSONA].’

7. On 7 May 2003, the parties agreed, in the form of an [OSCURATO:PERSONA] 4 to the contract, to continue their contractual relationship. [OSCURATO:PERSONA] 4 of the contract, as amended, provides: ‘The contract shall run for an indefinite period.

However, the duration shall not exceed the expiry date of the [EAR].

The [EAR] reserves the right to terminate the contract following a significant reduction or winding-up of its operations before the expiry date of the [EAR].’

8. According to that addendum, all other articles initially agreed upon in the contract of employment were to remain unaltered.

9. On 26 February 2004, the director of the EAR decided to terminate the applicant’s contract in the following terms: ‘I regret to inform you that the decision has been taken to terminate your contract of employment with the [EAR].

The notice period will be of three months, starting on 27th February 2004, in accordance with [OSCURATO:PERSONA] 47(2) of the [CEOS] and the second paragraph of [OSCURATO:PERSONA] 5(b) of your contract.’

10. On 26 March 2004, the applicant was summoned by the Head of the [OSCURATO:PERSONA], and, in the presence of a member of the EAR staff, was handed the decision to terminate his contract.

11. On 27 May 2004, the applicant lodged a complaint against the decision to terminate his contract, pursuant to [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’), which is applicable to him by virtue of [OSCURATO:PERSONA] 46 of the CEOS.

12. That complaint was rejected by implication as the EAR failed to reply before 27 September 2004, which was the date of expiry of the four-month period laid down in [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA]. Procedure and forms of order sought

13. By application lodged at the Registry of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] on 6 December 2004, the applicant brought the present proceedings.

14. On 3 March 2005, the Commission lodged its defence at the Registry of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA].

15. Pursuant to [OSCURATO:PERSONA] 47(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) decided that a second exchange of pleadings was not necessary in this case.

Upon hearing the report of the Judge-Rapporteur, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] decided to open the oral procedure.

16. The parties presented oral argument and replied to the [OSCURATO:PERSONA]’s oral questions at the hearing on 17 November 2005.

17. The applicant claims that the [OSCURATO:PERSONA] should: – annul the implied rejection of his complaint and, consequently, the termination of his contract; – order the EAR to pay the costs.

18. The EAR contends that the [OSCURATO:PERSONA] should: – dismiss the application; – order the applicant to pay the costs. Law

19. [OSCURATO:PERSONA] 91(1) of the [OSCURATO:PERSONA] and according to settled case-law, an application for annulment of a decision rejecting a complaint has the effect of bringing before the Community judicature the act adversely affecting the applicant against which the complaint was submitted ([OSCURATO:PERSONA] 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8; [OSCURATO:PERSONA]80/04 Castets v Commission [2005] ECR-SC I-A-0000 and II-0000, paragraph 15, and the case-law cited).

Consequently, the forms of order sought by the applicant must be understood as seeking annulment of the decision of 26 February 2004 terminating the contract (‘the contested decision’).

20. In support of his action the applicant submits five pleas in law alleging respectively breach of the duty to state reasons, breach of the principle of protection of legitimate expectations, infringement of [OSCURATO:PERSONA] 47 of the CEOS concerning notice, misuse of powers and infringement of the principle of sound administration.

21. In the circumstances of the present case it is necessary to examine, first, the second plea submitted by the applicant, alleging breach of the principle of protection of legitimate expectations. Arguments of the parties

22. The applicant submits that, according to settled case-law, the right to rely on the principle of protection of legitimate expectations is open to any individual who is in a situation in which it is clear that the Community administration has, by giving him precise assurances, led him to entertain reasonable expectations.

Only promises which run counter to the provisions of the [OSCURATO:PERSONA] cannot give rise to a legitimate expectation on the part of the person concerned.

23. [OSCURATO:PERSONA]175/03 Schmitt v EAR [2004] ECR-SC I-A-0000 and II-0000, which concerned the same type of contract as that between the applicant and the EAR, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] held that that type of contract was ambiguous.

On the one hand, the contract refers to [OSCURATO:PERSONA] 47(2) of the CEOS, which allows the EAR to terminate temporary contracts without any reason being given, on the sole condition that the period of notice is complied with.

On the other hand, the contract itself provides that it is concluded for an indefinite period, unless there is a significant reduction or winding-up of the operations of the EAR.

24. Resolving that inconsistency, the [OSCURATO:PERSONA] stated that, in those circumstances, [OSCURATO:PERSONA] 47(2) of the CEOS is applicable only inasmuch as it provides for a period of notice.

It cannot exempt the EAR from abiding by the other clauses of the contract and, in particular, from the obligation to justify the termination of the contract by citing a significant reduction or winding-up of its operations (Schmitt v EAR , paragraph 54).

Accordingly, any member of temporary staff who has signed such a contract can reasonably expect that his contract will not be terminated unless those two conditions are satisfied.

25. Moreover, it follows from a principle of employment law, according to which imprecise provisions in a contract of employment must be interpreted in favour of the weaker party (Schmitt v EAR , paragraph 55), that the notion of reduction of the operations of the EAR justifying termination of a contract is not to be interpreted broadly and cannot mean reduction of the staff in some sections of the EAR.

26. In the present case, the EAR did not prove that the reason for terminating the contract was related to any reduction of its operations.

27. Consequently, the termination of the contract and the implied rejection of the applicant’s complaint disregard the applicant’s legitimate expectations.

Furthermore, his legitimate expectations were reinforced by the attitude adopted by the EAR administration towards him, until a second administrative assistant was recruited.

On 7 November 2001 the applicant was initially recruited by the EAR as an administrative assistant.

On 1 March 2002 he was promoted to Head of the [OSCURATO:PERSONA].

On 7 May 2003 his contract was renewed but, this time, for an indefinite period.

According to the applicant, this progressive recognition by his service is obviously the result of his performance and dedication to the EAR.

It is the reason why he entertained the legitimate expectation that he would be able to continue working until the expiry date of the EAR, no sign to the contrary having ever been given to him.

The contested decision unlawfully disregarded the expectation which had arisen between the applicant and his service.

For those reasons, that decision should be annulled.

28. For its part, the EAR submits that, were the [OSCURATO:PERSONA] to find that the contract contained an internal inconsistency, no legitimate expectations could arise from such an unclear text.

29. It adds that it is evident from [OSCURATO:PERSONA]199/01 G v Commission [2002] ECR-SC I-A-207 and II-1085, paragraph 38, that, in order to establish a breach of the principle of the protection of legitimate expectations, three conditions must be satisfied: first, specific, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community administration; second, those assurances must be such as to lead the person to whom they are addressed to entertain a legitimate expectation; third, the assurances given must comply with the relevant rules.

30. The first condition is not satisfied in this case, as the assurances given to the applicant were not specific, unconditional or consistent, since the wording of the contract and [OSCURATO:PERSONA] 4 discloses an inconsistency between the second paragraph of [OSCURATO:PERSONA] 4 and [OSCURATO:PERSONA] 5(b) thereof.

31. Nor is the second condition satisfied because, if there is an inconsistency in the text, the applicant’s expectations are unfounded.

32. The third condition is not satisfied either, since the advantage arising from the legitimate expectations must comply with the law in force.

It is evident from [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] 2667/2000 that the EAR has a strictly limited number of officials and, as regards other members of staff, they are recruited by the EAR for a period strictly limited to its requirements.

Findings of the [OSCURATO:PERSONA]

33. It must be pointed out that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations, which is one of the fundamental principles of the Community, extends to any individual in a situation where it is clear that the Community administration has, by giving him precise assurances, led him to entertain reasonable expectations (Schmitt v EAR , paragraph 46, and the case-law cited).

34. In addition, such assurances must in any event comply with the provisions of the [OSCURATO:PERSONA] (see Schmitt v EAR , paragraph 47, and the case-law cited).

35. Thus, in the present case, it is necessary to examine whether [OSCURATO:PERSONA] 4 of the contract, as amended by [OSCURATO:PERSONA] 4, gave the applicant the legitimate assurance that his contract would not be terminated, except under the conditions laid down in [OSCURATO:PERSONA] 47(2)(b) and Articles 48 to 50 of the CEOS, unless there was a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission.

36. The amendment of [OSCURATO:PERSONA] 4 of the initial contract by [OSCURATO:PERSONA] 4 brought about an ambiguous situation as regards the content of the contract, in so far as the first subparagraph of [OSCURATO:PERSONA] 5(b) of the contract, which was not amended and remained in force, contained a reference to the EAR’s right to terminate the contract for any of the reasons specified in Articles 47 to 50 of the CEOS.

37. Thus, had the second paragraph of [OSCURATO:PERSONA] 4 not been added, the EAR would indisputably have had the right to terminate the applicant’s contract for one of the reasons specified in Articles 47 to 50 of the CEOS, subject to compliance with the conditions laid down in those articles, as provided for in [OSCURATO:PERSONA] 5(b) of the initial contract.

However, the addition of the second paragraph of [OSCURATO:PERSONA] 4 could have given the applicant the impression that the EAR had restricted its power to terminate the contract to circumstances in which there was a reduction or winding-up of the operations of the EAR before the expiry date of its mission.

38. It is therefore necessary to find that the applicant could have believed that the purpose of that contractual provision was to indicate, in advance, the ground for possible subsequent termination – namely a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission – so that, under the contractual arrangements as amended by [OSCURATO:PERSONA] 4, [OSCURATO:PERSONA] 5(b) of the contract could be applied only partially.

Thus, from the point at which [OSCURATO:PERSONA] 4 came into effect, [OSCURATO:PERSONA] 5(b) of the contract could be interpreted as meaning that the first subparagraph of that provision referred to [OSCURATO:PERSONA] 47(2)(a) of the CEOS, but that termination of the contract had to be justified by one of the reasons laid down in the second paragraph of [OSCURATO:PERSONA] 4 of the contract, as amended by [OSCURATO:PERSONA] 4, and that, since [OSCURATO:PERSONA] 4 of the new contract did not provide for a period of notice, notice continued to be governed by the last sentence of the second subparagraph of [OSCURATO:PERSONA] 5(b) of the initial contract.

39. In addition, the applicant could have entertained a legitimate expectation that imprecise provisions of a contract of employment would be interpreted in favour of the weaker contracting party (see, to that effect, Schmitt v EAR , paragraph 55).

40. Consequently, the applicant could have believed that, in the light of the wording of [OSCURATO:PERSONA] 4 of the contract, as amended by [OSCURATO:PERSONA] 4, his contract would not be terminated, except under the conditions laid down in [OSCURATO:PERSONA] 47(2)(b) and Articles 48 to 50 of the CEOS, unless there was a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission.

41. Moreover, the belief thus generated in the mind of the applicant can be regarded as legitimate.

42. [OSCURATO:PERSONA] of all, the interpretation in question may be regarded as also following from reasoning ‘a majore ad minus ’.

Since the termination of contracts for an indefinite period, with the period of notice stipulated in the contract and in accordance with [OSCURATO:PERSONA] 47(2) of the CEOS, falls within the discretion of the competent authority, no provision of the CEOS prohibits that authority from restricting its power to terminate contracts, in the interests of the staff, by means of contractual provisions (see Schmitt v EAR , paragraph 56, and the case-law cited).

43. Next, according to settled case-law, since the basis of the relationship between a member of the temporary staff and the institution concerned is the contract of employment, justification for the unilateral termination of such a contract, which is expressly provided for in [OSCURATO:PERSONA] 47 of the CEOS, lies in the contract and there is no need, therefore, for a statement of reasons.

It may accordingly be considered, similarly, that a restriction of the right to terminate may also derive from such a contract (see, to that effect, Schmitt v EAR , paragraph 57, and the case-law cited).

44. Moreover, that view is supported by the case-law according to which no statement of reasons has to be given for the dismissal of a member of the temporary staff which is decided upon the basis of [OSCURATO:PERSONA] 47(2) of the CEOS, unless such an obligation is expressly provided for in the contract of employment (see Schmitt v EAR , paragraph 58, and the case-law cited).

45. Consequently, the expectation that the applicant could entertain that [OSCURATO:PERSONA] 4 of the contract, as amended by [OSCURATO:PERSONA] 4, had restricted the EAR’s power to terminate his contract, pursuant to [OSCURATO:PERSONA] 47(2)(a) of the CEOS, solely to circumstances in which there was a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission, must be regarded as legitimate.

46. The argument, raised by the EAR at the hearing, that a note dated 28 February 2004 from the applicant to the EAR shows that there was no such legitimate expectation, since it raises the possibility of termination of the contract by the EAR, is irrelevant in that regard.

The note in question solely sets out remarks allegedly made by the Head of Administration of the EAR and does not therefore contain any evidence of the possible existence of a legitimate expectation on the part of the applicant based on [OSCURATO:PERSONA] 4 of the contract.

In addition, that note is not, in any case, such as to cast doubt on the [OSCURATO:PERSONA]’s assessment, founded in this case on the applicant’s legitimate expectations derived from contractual provisions.

47. Therefore, since the applicant could entertain a legitimate expectation that his contract would not be terminated, except under the conditions laid down in [OSCURATO:PERSONA] 47(2)(b) and Articles 48 to 50 of the CEOS, unless there was a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission, and the EAR terminated that contract without even citing such a reduction or winding-up, it must be found that his legitimate expectations were disregarded.

48. Consequently, the second plea, alleging breach of the principle of protection of legitimate expectations, must be upheld.

49. Therefore, without its being necessary to examine the other pleas and arguments on which the applicant relies, the contested decision must be annulled. Costs

50. [OSCURATO:PERSONA] 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the defendant has been unsuccessful it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. [OSCURATO:PERSONA] part On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby:

1. Annuls the decision of the [OSCURATO:PERSONA] for Reconstruction (EAR) of 26 February 2004 terminating the applicant’s contract of employment;

2. Orders the EAR to pay the costs.

Anonimizzato ex art. 52 D.Lgs. 196/2003
62004TJ0471_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] T‑471/04, [OSCURATO:PERSONA], formerly a member of the temporary staff of the [OSCURATO:PERSONA] for Reconstruction, residing in Ioannina (Greece), represented by S. Pappas, lawyer, applicant, v [OSCURATO:PERSONA] for Reconstruction (EAR), represented by J.-N. Louis, S. Orlandi, X. Martin and C. Manolopoulos, lawyers, with an address for service in Luxembourg, defendant, APPLICATION for annulment of the decision of the EAR of 26 February 2004 to terminate the applicant’s contract of employment, [OSCURATO:PERSONA] [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of H. [OSCURATO:PERSONA], [OSCURATO:PERSONA], P. Mengozzi and  I. Wiszniewska‑Białecka, Judges, Registrar: I. Natsinas, Administrator, having regard to the written procedure and further to the hearing on 17 November 2005, gives the following [OSCURATO:PERSONA] context and the facts at the origin of the dispute 1. [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] (EC) No 2667/2000 of 5 December 2000 on the [OSCURATO:PERSONA] for Reconstruction (OJ 2000 L 306, p. 7) provides: ‘[OSCURATO:PERSONA] staff shall be subject to the rules and regulations applicable to officials and other servants of the [OSCURATO:PERSONA]. [OSCURATO:PERSONA], in agreement with the Commission, shall adopt the necessary implementing rules. [OSCURATO:PERSONA] staff shall consist of a strictly limited number of officials assigned or seconded by the Commission or [OSCURATO:PERSONA] to carry out management duties. The remaining staff shall consist of other employees recruited by the [OSCURATO:PERSONA] for a period strictly limited to its requirements.’ 2. [OSCURATO:PERSONA] 47 of the Conditions of employment of other servants of the [OSCURATO:PERSONA], in the version in force until 30 April 2004 and applicable to the facts of the present case, (‘the CEOS’) states: ‘Apart from cessation on death, the employment of temporary staff shall cease: … 2. Where the contract is for an indefinite period: (a) at the end of the period of notice stipulated in the contract; the length of the period of notice shall not be less than two days for each completed month of service, subject to a minimum of 15 days and a maximum of three months. In the case of a servant within the meaning of [OSCURATO:PERSONA] 2(d) 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; …’ 3. The applicant, [OSCURATO:PERSONA], was recruited by the [OSCURATO:PERSONA] for Reconstruction (EAR) as a member of the temporary staff within the meaning of [OSCURATO:PERSONA] 2(a) of the CEOS, starting on 7 November 2001, for a fixed period of 18 months, in accordance with [OSCURATO:PERSONA] 4 of his contract of employment (‘the contract’). 4. [OSCURATO:PERSONA] 2 of the contract stipulates that the applicant is to be employed as an administrative assistant and that the place of employment is to be Podgorica (Montenegro). 5. [OSCURATO:PERSONA] 5(b) of the contract provides: ‘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 [CEOS], subject to the conditions laid down in those articles. For the purposes of [OSCURATO:PERSONA] 47(1)(b) of the [CEOS], the period of notice shall be [three] months. Where the contract has been renewed, the period of notice shall be one month for each year of service, up to a maximum of six months.’ 6. On 1 March 2002, the contracting parties amended, by [OSCURATO:PERSONA] 2 to the contract, [OSCURATO:PERSONA] 2 of the contract as follows: ‘The staff member shall be employed as Head of the [OSCURATO:PERSONA]. The place of employment shall be [OSCURATO:PERSONA].’ 7. On 7 May 2003, the parties agreed, in the form of an [OSCURATO:PERSONA] 4 to the contract, to continue their contractual relationship. [OSCURATO:PERSONA] 4 of the contract, as amended, provides: ‘The contract shall run for an indefinite period. However, the duration shall not exceed the expiry date of the [EAR]. The [EAR] reserves the right to terminate the contract following a significant reduction or winding-up of its operations before the expiry date of the [EAR].’ 8. According to that addendum, all other articles initially agreed upon in the contract of employment were to remain unaltered. 9. On 26 February 2004, the director of the EAR decided to terminate the applicant’s contract in the following terms: ‘I regret to inform you that the decision has been taken to terminate your contract of employment with the [EAR]. The notice period will be of three months, starting on 27th February 2004, in accordance with [OSCURATO:PERSONA] 47(2) of the [CEOS] and the second paragraph of [OSCURATO:PERSONA] 5(b) of your contract.’ 10. On 26 March 2004, the applicant was summoned by the Head of the [OSCURATO:PERSONA], and, in the presence of a member of the EAR staff, was handed the decision to terminate his contract. 11. On 27 May 2004, the applicant lodged a complaint against the decision to terminate his contract, pursuant to [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’), which is applicable to him by virtue of [OSCURATO:PERSONA] 46 of the CEOS. 12. That complaint was rejected by implication as the EAR failed to reply before 27 September 2004, which was the date of expiry of the four-month period laid down in [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA]. Procedure and forms of order sought 13. By application lodged at the Registry of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] on 6 December 2004, the applicant brought the present proceedings. 14. On 3 March 2005, the Commission lodged its defence at the Registry of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]. 15. Pursuant to [OSCURATO:PERSONA] 47(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) decided that a second exchange of pleadings was not necessary in this case. Upon hearing the report of the Judge-Rapporteur, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] decided to open the oral procedure. 16. The parties presented oral argument and replied to the [OSCURATO:PERSONA]’s oral questions at the hearing on 17 November 2005. 17. The applicant claims that the [OSCURATO:PERSONA] should: – annul the implied rejection of his complaint and, consequently, the termination of his contract; – order the EAR to pay the costs. 18. The EAR contends that the [OSCURATO:PERSONA] should: – dismiss the application; – order the applicant to pay the costs. Law 19. [OSCURATO:PERSONA] 91(1) of the [OSCURATO:PERSONA] and according to settled case-law, an application for annulment of a decision rejecting a complaint has the effect of bringing before the Community judicature the act adversely affecting the applicant against which the complaint was submitted ([OSCURATO:PERSONA] 293/87 Vainker v Parliament [1989] ECR 23, paragraph 8; [OSCURATO:PERSONA]80/04 Castets v Commission [2005] ECR-SC I-A-0000 and II-0000, paragraph 15, and the case-law cited). Consequently, the forms of order sought by the applicant must be understood as seeking annulment of the decision of 26 February 2004 terminating the contract (‘the contested decision’). 20. In support of his action the applicant submits five pleas in law alleging respectively breach of the duty to state reasons, breach of the principle of protection of legitimate expectations, infringement of [OSCURATO:PERSONA] 47 of the CEOS concerning notice, misuse of powers and infringement of the principle of sound administration. 21. In the circumstances of the present case it is necessary to examine, first, the second plea submitted by the applicant, alleging breach of the principle of protection of legitimate expectations. Arguments of the parties 22. The applicant submits that, according to settled case-law, the right to rely on the principle of protection of legitimate expectations is open to any individual who is in a situation in which it is clear that the Community administration has, by giving him precise assurances, led him to entertain reasonable expectations. Only promises which run counter to the provisions of the [OSCURATO:PERSONA] cannot give rise to a legitimate expectation on the part of the person concerned. 23. [OSCURATO:PERSONA]175/03 Schmitt v EAR [2004] ECR-SC I-A-0000 and II-0000, which concerned the same type of contract as that between the applicant and the EAR, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] held that that type of contract was ambiguous. On the one hand, the contract refers to [OSCURATO:PERSONA] 47(2) of the CEOS, which allows the EAR to terminate temporary contracts without any reason being given, on the sole condition that the period of notice is complied with. On the other hand, the contract itself provides that it is concluded for an indefinite period, unless there is a significant reduction or winding-up of the operations of the EAR. 24. Resolving that inconsistency, the [OSCURATO:PERSONA] stated that, in those circumstances, [OSCURATO:PERSONA] 47(2) of the CEOS is applicable only inasmuch as it provides for a period of notice. It cannot exempt the EAR from abiding by the other clauses of the contract and, in particular, from the obligation to justify the termination of the contract by citing a significant reduction or winding-up of its operations (Schmitt v EAR , paragraph 54). Accordingly, any member of temporary staff who has signed such a contract can reasonably expect that his contract will not be terminated unless those two conditions are satisfied. 25. Moreover, it follows from a principle of employment law, according to which imprecise provisions in a contract of employment must be interpreted in favour of the weaker party (Schmitt v EAR , paragraph 55), that the notion of reduction of the operations of the EAR justifying termination of a contract is not to be interpreted broadly and cannot mean reduction of the staff in some sections of the EAR. 26. In the present case, the EAR did not prove that the reason for terminating the contract was related to any reduction of its operations. 27. Consequently, the termination of the contract and the implied rejection of the applicant’s complaint disregard the applicant’s legitimate expectations. Furthermore, his legitimate expectations were reinforced by the attitude adopted by the EAR administration towards him, until a second administrative assistant was recruited. On 7 November 2001 the applicant was initially recruited by the EAR as an administrative assistant. On 1 March 2002 he was promoted to Head of the [OSCURATO:PERSONA]. On 7 May 2003 his contract was renewed but, this time, for an indefinite period. According to the applicant, this progressive recognition by his service is obviously the result of his performance and dedication to the EAR. It is the reason why he entertained the legitimate expectation that he would be able to continue working until the expiry date of the EAR, no sign to the contrary having ever been given to him. The contested decision unlawfully disregarded the expectation which had arisen between the applicant and his service. For those reasons, that decision should be annulled. 28. For its part, the EAR submits that, were the [OSCURATO:PERSONA] to find that the contract contained an internal inconsistency, no legitimate expectations could arise from such an unclear text. 29. It adds that it is evident from [OSCURATO:PERSONA]199/01 G v Commission [2002] ECR-SC I-A-207 and II-1085, paragraph 38, that, in order to establish a breach of the principle of the protection of legitimate expectations, three conditions must be satisfied: first, specific, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community administration; second, those assurances must be such as to lead the person to whom they are addressed to entertain a legitimate expectation; third, the assurances given must comply with the relevant rules. 30. The first condition is not satisfied in this case, as the assurances given to the applicant were not specific, unconditional or consistent, since the wording of the contract and [OSCURATO:PERSONA] 4 discloses an inconsistency between the second paragraph of [OSCURATO:PERSONA] 4 and [OSCURATO:PERSONA] 5(b) thereof. 31. Nor is the second condition satisfied because, if there is an inconsistency in the text, the applicant’s expectations are unfounded. 32. The third condition is not satisfied either, since the advantage arising from the legitimate expectations must comply with the law in force. It is evident from [OSCURATO:PERSONA] 10 of [OSCURATO:PERSONA] 2667/2000 that the EAR has a strictly limited number of officials and, as regards other members of staff, they are recruited by the EAR for a period strictly limited to its requirements. Findings of the [OSCURATO:PERSONA] 33. It must be pointed out that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations, which is one of the fundamental principles of the Community, extends to any individual in a situation where it is clear that the Community administration has, by giving him precise assurances, led him to entertain reasonable expectations (Schmitt v EAR , paragraph 46, and the case-law cited). 34. In addition, such assurances must in any event comply with the provisions of the [OSCURATO:PERSONA] (see Schmitt v EAR , paragraph 47, and the case-law cited). 35. Thus, in the present case, it is necessary to examine whether [OSCURATO:PERSONA] 4 of the contract, as amended by [OSCURATO:PERSONA] 4, gave the applicant the legitimate assurance that his contract would not be terminated, except under the conditions laid down in [OSCURATO:PERSONA] 47(2)(b) and Articles 48 to 50 of the CEOS, unless there was a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission. 36. The amendment of [OSCURATO:PERSONA] 4 of the initial contract by [OSCURATO:PERSONA] 4 brought about an ambiguous situation as regards the content of the contract, in so far as the first subparagraph of [OSCURATO:PERSONA] 5(b) of the contract, which was not amended and remained in force, contained a reference to the EAR’s right to terminate the contract for any of the reasons specified in Articles 47 to 50 of the CEOS. 37. Thus, had the second paragraph of [OSCURATO:PERSONA] 4 not been added, the EAR would indisputably have had the right to terminate the applicant’s contract for one of the reasons specified in Articles 47 to 50 of the CEOS, subject to compliance with the conditions laid down in those articles, as provided for in [OSCURATO:PERSONA] 5(b) of the initial contract. However, the addition of the second paragraph of [OSCURATO:PERSONA] 4 could have given the applicant the impression that the EAR had restricted its power to terminate the contract to circumstances in which there was a reduction or winding-up of the operations of the EAR before the expiry date of its mission. 38. It is therefore necessary to find that the applicant could have believed that the purpose of that contractual provision was to indicate, in advance, the ground for possible subsequent termination – namely a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission – so that, under the contractual arrangements as amended by [OSCURATO:PERSONA] 4, [OSCURATO:PERSONA] 5(b) of the contract could be applied only partially. Thus, from the point at which [OSCURATO:PERSONA] 4 came into effect, [OSCURATO:PERSONA] 5(b) of the contract could be interpreted as meaning that the first subparagraph of that provision referred to [OSCURATO:PERSONA] 47(2)(a) of the CEOS, but that termination of the contract had to be justified by one of the reasons laid down in the second paragraph of [OSCURATO:PERSONA] 4 of the contract, as amended by [OSCURATO:PERSONA] 4, and that, since [OSCURATO:PERSONA] 4 of the new contract did not provide for a period of notice, notice continued to be governed by the last sentence of the second subparagraph of [OSCURATO:PERSONA] 5(b) of the initial contract. 39. In addition, the applicant could have entertained a legitimate expectation that imprecise provisions of a contract of employment would be interpreted in favour of the weaker contracting party (see, to that effect, Schmitt v EAR , paragraph 55). 40. Consequently, the applicant could have believed that, in the light of the wording of [OSCURATO:PERSONA] 4 of the contract, as amended by [OSCURATO:PERSONA] 4, his contract would not be terminated, except under the conditions laid down in [OSCURATO:PERSONA] 47(2)(b) and Articles 48 to 50 of the CEOS, unless there was a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission. 41. Moreover, the belief thus generated in the mind of the applicant can be regarded as legitimate. 42. [OSCURATO:PERSONA] of all, the interpretation in question may be regarded as also following from reasoning ‘a majore ad minus ’. Since the termination of contracts for an indefinite period, with the period of notice stipulated in the contract and in accordance with [OSCURATO:PERSONA] 47(2) of the CEOS, falls within the discretion of the competent authority, no provision of the CEOS prohibits that authority from restricting its power to terminate contracts, in the interests of the staff, by means of contractual provisions (see Schmitt v EAR , paragraph 56, and the case-law cited). 43. Next, according to settled case-law, since the basis of the relationship between a member of the temporary staff and the institution concerned is the contract of employment, justification for the unilateral termination of such a contract, which is expressly provided for in [OSCURATO:PERSONA] 47 of the CEOS, lies in the contract and there is no need, therefore, for a statement of reasons. It may accordingly be considered, similarly, that a restriction of the right to terminate may also derive from such a contract (see, to that effect, Schmitt v EAR , paragraph 57, and the case-law cited). 44. Moreover, that view is supported by the case-law according to which no statement of reasons has to be given for the dismissal of a member of the temporary staff which is decided upon the basis of [OSCURATO:PERSONA] 47(2) of the CEOS, unless such an obligation is expressly provided for in the contract of employment (see Schmitt v EAR , paragraph 58, and the case-law cited). 45. Consequently, the expectation that the applicant could entertain that [OSCURATO:PERSONA] 4 of the contract, as amended by [OSCURATO:PERSONA] 4, had restricted the EAR’s power to terminate his contract, pursuant to [OSCURATO:PERSONA] 47(2)(a) of the CEOS, solely to circumstances in which there was a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission, must be regarded as legitimate. 46. The argument, raised by the EAR at the hearing, that a note dated 28 February 2004 from the applicant to the EAR shows that there was no such legitimate expectation, since it raises the possibility of termination of the contract by the EAR, is irrelevant in that regard. The note in question solely sets out remarks allegedly made by the Head of Administration of the EAR and does not therefore contain any evidence of the possible existence of a legitimate expectation on the part of the applicant based on [OSCURATO:PERSONA] 4 of the contract. In addition, that note is not, in any case, such as to cast doubt on the [OSCURATO:PERSONA]’s assessment, founded in this case on the applicant’s legitimate expectations derived from contractual provisions. 47. Therefore, since the applicant could entertain a legitimate expectation that his contract would not be terminated, except under the conditions laid down in [OSCURATO:PERSONA] 47(2)(b) and Articles 48 to 50 of the CEOS, unless there was a significant reduction or winding-up of the operations of the EAR before the expiry date of its mission, and the EAR terminated that contract without even citing such a reduction or winding-up, it must be found that his legitimate expectations were disregarded. 48. Consequently, the second plea, alleging breach of the principle of protection of legitimate expectations, must be upheld. 49. Therefore, without its being necessary to examine the other pleas and arguments on which the applicant relies, the contested decision must be annulled. Costs 50. [OSCURATO:PERSONA] 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the defendant has been unsuccessful it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. [OSCURATO:PERSONA] part On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Annuls the decision of the [OSCURATO:PERSONA] for Reconstruction (EAR) of 26 February 2004 terminating the applicant’s contract of employment; 2. Orders the EAR to pay the costs.
Sentenza Corte di giustizia UE n. 2667/2006 — Fons Iuris — Fons Iuris