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Corte di giustizia UEsentenza

Corte di giustizia UE n. 1023/2014

ECLI:EU:F:2014:259
Testo integrale del provvedimento

Testo integrale del provvedimento

62013FJ0109_EN

[OSCURATO:PERSONA] part

[OSCURATO:PERSONA] F‑109/13,

ACTION brought under [OSCURATO:PERSONA] 270 TFEU, DG, a former member of the temporary staff of the [OSCURATO:PERSONA] for Network and [OSCURATO:PERSONA], residing in Heraklion (Greece), represented by L. Levi and A. Tymen, lawyers, applicant, v [OSCURATO:PERSONA] for Network and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), represented initially by P. Empadinhas, acting as Agent, and by C. Meidanis, lawyer, and subsequently by P. Empadinhas and S. Purser, acting as Agents, and by C. Meidanis, lawyer, defendant,

[OSCURATO:PERSONA]

([OSCURATO:PERSONA]),

composed of E. Perillo, acting as President, R. Barents (Rapporteur) and K. Bradley, Judges, Registrar: X. [OSCURATO:PERSONA], [OSCURATO:PERSONA], having regard to the written procedure and further to the hearing on 25 June 2014, gives the following

[OSCURATO:PERSONA]

1. By application received by the [OSCURATO:PERSONA] on 4 November 2013, DG seeks, first, the annulment of the decision of the [OSCURATO:PERSONA] for Network and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 31 January 2013 terminating her employment contract and, secondly, her reinstatement, the payment of her financial benefits from the effective date of the termination of her contract until her reinstatement and compensation in respect of the non-material harm which she considers herself to have suffered.

Legal context

2. The legal context of the present case is constituted by [OSCURATO:PERSONA] 30 of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], [OSCURATO:PERSONA] 9 TFEU and [OSCURATO:PERSONA] 47(c)(i) of the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in the version prior to the entry into force of [OSCURATO:PERSONA] (EU, Euratom) No 1023/2013 of the [OSCURATO:PERSONA] and of the Council of 22 October 2013 amending the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] and the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (‘the CEOS’).

3. [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 158 of the [OSCURATO:PERSONA] (‘the ILO [OSCURATO:PERSONA]’) concerning termination of employment at the initiative of the employer, adopted on 22 June 1982, states: ‘The 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.’

4. [OSCURATO:PERSONA] 24(a) of the [OSCURATO:PERSONA], signed at Turin on 18 October 1961 and revised at Strasbourg on 3 May 1996, 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.

Facts

5. On 1 September 2005, the applicant was recruited by [OSCURATO:PERSONA] as a member of the temporary staff at Grade AD 9, for a three-year period as an expert in the field of awareness-raising and promotion of best practices concerning network and information security. [OSCURATO:PERSONA] 2008, she was employed on a contract for an indefinite period.

6. [OSCURATO:PERSONA] 2005 to 2010 she led the ‘Awareness-raising’ section. [OSCURATO:PERSONA] 2011, she was in charge of the ‘[OSCURATO:PERSONA][OSCURATO:PERSONA]’ project (‘the ECSM project’).

7. On 27 November 2012, the Board of Directors of [OSCURATO:PERSONA] adopted the 2013 [OSCURATO:PERSONA]. [OSCURATO:PERSONA] that programme, following which the ‘Awareness-raising’ department was dismantled, raising public awareness concerning network and information security was to become a task performed ‘horizontally’.

8. [OSCURATO:PERSONA] 2013-2015, adopted at the end of 2012, states as follows: ‘It is … the view of [[OSCURATO:PERSONA]] that [OSCURATO:PERSONA] 3 of [OSCURATO:PERSONA] [No] 460/2004 listing the tasks of [[OSCURATO:PERSONA]], among which awareness-raising, provides for a general task of [[OSCURATO:PERSONA]] to which all the operational sections and organisational entities dealing with external communication should be contributing in their daily work and annual deliverables.

The central idea behind this development is that all [OSCURATO:PERSONA] staff will not only carry out awareness-raising activities, but will also have the knowledge and experience to enable them to describe how such activities increase the impact of [[OSCURATO:PERSONA]].’

9. On 5 December 2012, a meeting was held in the presence of the applicant, [OSCURATO:PERSONA]’s [OSCURATO:PERSONA] and the head of the ‘[OSCURATO:PERSONA]’ department during which the [OSCURATO:PERSONA] explained that the implementation of the [OSCURATO:PERSONA] 2013 and the [OSCURATO:PERSONA] 2013-2015 required [OSCURATO:PERSONA] to undertake new tasks in certain technical fields, but that no new posts were envisaged to support this additional workload on account of budgetary restrictions, that, consequently, new posts were to be created by the redeployment of staff in awareness-raising posts of lesser importance and that, rather than dismissing the persons currently in those posts, including the applicant herself, [OSCURATO:PERSONA] would try to redeploy them, provided they had the necessary qualifications.

10. On 7 December 2012, the [OSCURATO:PERSONA] sent a letter to the applicant, summarising and confirming what had been said at the meeting of 5 December 2012 and asking the applicant to inform [OSCURATO:PERSONA] as soon as possible and before 21 December 2012 of any acquired knowledge or professional experience which would make her suitable for appointment to one of the posts to be created.

11. By email of 12 December 2012 to the [OSCURATO:PERSONA], the applicant confirmed that she had received a copy of the letter of 7 December 2012 on 11 December 2012 in the afternoon.

Since she had an exceptional workload owing to a draft report which had to be finalised quickly, she asked in that email, on account of the importance of the subject-matter, to be granted an additional period of 1 day, and stated that she would submit her reply at the latest during the day on 21 December 2012.

12. On 19 December 2012, the [OSCURATO:PERSONA] issued a reprimand to the applicant, taking the view that she had deliberately lied in declaring, in her email of 12 December 2012, that she had received the letter of 7 December 2012 on 11 December 2012 in the afternoon, whereas she had received it on 7 December 2012, as evidenced by a cross-check on [OSCURATO:PERSONA]’s computer system.

13. By letter of 20 December 2012, the applicant replied to the letter of 7 December 2012.

14. By letter of 31 January 2013, the [OSCURATO:PERSONA] informed the applicant that she had not demonstrated a usable skill or experience for the posts to be created, that is to say, the posts of experts in network and information security, and that, consequently, he had decided to terminate her contract (‘the contested decision’).

15. By letter of 24 April 2013, the applicant lodged a complaint under [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’).

16. By letter of 22 August 2013, that complaint was rejected (‘the decision rejecting the complaint’). Forms of order sought and procedure

17. The applicant claims that the [OSCURATO:PERSONA] should: – annul the contested decision; – annul the decision rejecting the complaint; – order her reinstatement and pay the financial benefits due to her from the effective date of the termination of her contract until her reinstatement, with the deduction of any income earned by her over that period, plus interest for late payment calculated at the rate set by the [OSCURATO:PERSONA], increased by three points; – pay compensation to her in respect of the non-material harm suffered, assessed on equitable principles at EUR 10 000; – order [OSCURATO:PERSONA] to pay the costs.

18. [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the application for annulment; – dismiss the applicant’s application for reinstatement and the application for payment of financial benefits in respect of the period between the date of termination of her contract and the date of her reinstatement; – dismiss the application for compensation for non- material harm; – order the applicant to pay the costs.

19. By letter of 19 March 2014, the applicant lodged an offer of further evidence. [OSCURATO:PERSONA] offer of further evidence of 19 March 2014

20. By letter of 19 March 2014, the applicant made an offer of further evidence, which included a declaration of 3 March 2014 from the former head of [OSCURATO:PERSONA]’s [OSCURATO:PERSONA], a declaration of 14 March 2014 from the former deputy director of [OSCURATO:PERSONA]’s [OSCURATO:PERSONA], the 2005 vacancy notice for the applicant’s post and two emails of 29 October and 28 November 2013.

21. According to [OSCURATO:PERSONA] 57 of the Rules of Procedure, the parties may offer further evidence in support of their arguments up until the end of the hearing, on condition that the delay in offering to produce it is duly justified.

22. Since the applicant has not justified the delay in the production of those documents, the offer of further evidence of 19 March 2014 must be rejected. The claim for annulment of the decision rejecting the complaint

23. It is settled case-law that claims for annulment formally directed against the decision rejecting a complaint, where that decision has no independent content, have the effect of bringing before the [OSCURATO:PERSONA] the act against which the complaint was submitted (judgment in Vainker v [OSCURATO:PERSONA] , 293/87, EU:C:1989:8, paragraph 8).

Since, in this case, the decision rejecting the complaint has no independent content, the action must be regarded as directed against the constested decision.

The claim seeking the applicant’s reinstatement and payment of her financial benefits

24. It is settled case-law that the Courts of the [OSCURATO:PERSONA] have no jurisdiction to issue directions to the institutions (judgment in V v [OSCURATO:PERSONA] , F‑46/09, EU:F:2011:101, paragraph 63 and the case-law cited).

25. In an action brought under [OSCURATO:PERSONA] 91 of the [OSCURATO:PERSONA], heads of claim requesting the [OSCURATO:PERSONA] to address directions to the administration or to recognise the validity of certain pleas in law relied on in support of a claim for annulment are manifestly inadmissible, since it is not for the [OSCURATO:PERSONA] judicature to issue directions to the institutions of the [OSCURATO:PERSONA] or to make statements of law in the abstract. [OSCURATO:PERSONA] applies to claims requesting the [OSCURATO:PERSONA] to establish the existence of certain facts and to instruct the administration to adopt the measures required to reinstate the person concerned in their rights (see, to that effect, order in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , F‑11/10, EU:F:2010:69, paragraphs 29 to 31).

26. Consequently, the head of claim by which the applicant seeks her reinstatement and the payment of her financial benefits in respect of the period between the date of termination of her contract and the date of her reinstatement must be rejected as inadmissible.

The claim for annulment of the contested decision

27. In support of her action, the applicant puts forward three pleas in law, alleging, first, misuse of powers, secondly, a failure to state reasons and a manifest error of assessment and, thirdly, infringement of the duty of care or of the obligation to actively search for a redeployment solution.

28. Following questions put at the hearing on the relationship between the second and third pleas, the applicant stated that the plea alleging the infringement of the duty of care constitutes a plea lodged in the alternative to the second plea.

The first plea, alleging a misuse of powers – Arguments of the parties

29. The applicant claims that she was the victim of a ‘constructive dismissal’, which is vitiated by a misuse of powers. [OSCURATO:PERSONA], [OSCURATO:PERSONA] did not follow the applicable procedure for the career development report.

Had she been informed of the assessment of her performance, her objectives and recommended training, she could have trained in relevant fields for the future of [OSCURATO:PERSONA]. [OSCURATO:PERSONA], [OSCURATO:PERSONA] did not describe the actual and current changes in her duties in her job description.

Furthermore, without any prior consultation, she received a new job description in August 2012 referring to the field of awareness-raising, whereas this was the only field in which she no longer carried out duties.

Thirdly, she was not officially informed until December 2012 that the reorganisation of the policy on awareness-raising might affect her post, nor did [OSCURATO:PERSONA] explain why the management of the ECSM project required the presence of an engineer.

Fourthly, the disciplinary procedure took place within the critical period and was therefore probably carried out in order to undermine her position.

Lastly, the applicant points out that there were some rumours circulating within [OSCURATO:PERSONA] regarding the imminent termination of her employment.

According to the applicant, all those factors indicated that [OSCURATO:PERSONA], in a process beginning in 2011, succeeded in giving the impression in 2013 that there was no option other than to terminate her contract, whereas in fact that was not the case.

30. [OSCURATO:PERSONA] contends that the first plea should be rejected. – Findings of the [OSCURATO:PERSONA]

31. It is settled case-law that there is no misuse of powers unless there is objective, relevant and consistent evidence which makes it possible to establish that the contested act pursued an aim other than that ascribed to it by the applicable provisions of the [OSCURATO:PERSONA] (judgment in Skareby v [OSCURATO:PERSONA] , F‑46/06, EU:F:2008:26, paragraph 156).

32. In this connection, it is not enough for the applicant to rely on certain facts in support of her claims; she must also adduce evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability, failing which the material accuracy of [OSCURATO:PERSONA]’s claims cannot be called into question (see judgment in Skareby v [OSCURATO:PERSONA] , EU:F:2008:26, paragraph 157).

33. So far as concerns the argument relating to the lack of a career development report in respect of 2011, it must be observed that that argument fails to have regard to the fact that the 2013 [OSCURATO:PERSONA] was adopted by the Board of Directors only on 27 November 2012 and that it was only following the adoption of that programme that the awareness-raising activities were classified as a general task of [OSCURATO:PERSONA] to which all operational sections and all organisational entities responsible for external communication should henceforth contribute in their daily work and by means of their annual results.

Therefore the applicant cannot claim that if her career development report in respect of 2011 had been drawn up in conformity with the rules in force, she would have been able to anticipate the possible consequences with regard to her future duties within [OSCURATO:PERSONA].

34. Furthermore, there is nothing in the file to show that, in accordance with [OSCURATO:PERSONA] 5(12) of the Decision of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] of 10 September 2008 on general provisions for implementing [OSCURATO:PERSONA] 43 of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] 15 of the Conditions of Employment of [OSCURATO:PERSONA], the applicant referred the matter to the countersigning officer where the reporting officer failed to comply with the time-limits for drawing up the career development report.

In any event, in an email of 28 February 2012, the applicant stated that she had familiarised herself with the draft 2013 [OSCURATO:PERSONA] and expressed the wish to establish a training schedule in order to enhance her knowledge with a view to the forthcoming changes.

35. The argument relating to the actual and current changes concerning her duties in her job description must be rejected.

The contested decision was adopted notwithstanding the applicant’s activities in the field of awareness-raising and the ECSM project, and is based on the consideration that she did not have the academic training or experience necessary to be redeployed to other posts.

In any event, the applicant did not express any objections concerning the reference, in her new job description, to the field of awareness-raising.

36. The third argument has no factual basis.

It was only after the adoption of the 2013 [OSCURATO:PERSONA], on 27 November 2012, that [OSCURATO:PERSONA] had to address changes in its human resources policy resulting from that programme.

It is common ground that the applicant was informed, on 5 December 2012, by the [OSCURATO:PERSONA], of the consequences for her individual situation.

On any view, the applicant has not shown how prior notification of those consequences could have improved her chances of being redeployed within [OSCURATO:PERSONA].

37. So far as concerns the fourth argument, it is sufficient to note that this is a mere contention, and the applicant has not provided any evidence capable of proving that the disciplinary procedure and the alleged rumours influenced or could have influenced the final outcome or the content of the contested decision.

38. It follows that the first plea must be rejected. The second plea, alleging a manifest error of assessment and infringement of the obligation to state reasons – Arguments of the parties

39. The applicant submits that, in the absence of a genuine restriction on staff numbers and of the possibility of a new allocation of resources, as is apparent from the [OSCURATO:PERSONA] document entitled ‘Changes related to [OSCURATO:PERSONA] review – cutting staff by 5%’, [OSCURATO:PERSONA]’s ‘preventative’ approach of terminating the employment of members of staff is not legitimate.

She adds that, according to the document ‘[OSCURATO:PERSONA] – Agencies financial statement’, [OSCURATO:PERSONA] requested six new posts, one of which broadly fell under the ECSM project for which the applicant was responsible.

According to the applicant, the scope and the content of the ECSM project could not warrant the termination of her employment given that [OSCURATO:PERSONA] continued to carry out both awareness-raising activities and activities relating to the ECSM project.

In this connection, the applicant observes that she participated in a range of activities concerning the management of the ECSM project and that, from 2011, she did not perform any further activities in the awareness-raising field.

Moreover, that project had been entrusted to her for the previous two years and was supposed to last for a period covering at least the following two years, as is apparent from the 2013 and 2014 [OSCURATO:PERSONA].

40. The applicant also submits that one of the persons to whom the ECSM project was entrusted is a seconded national expert, which is contrary to [OSCURATO:PERSONA] 6 of the [OSCURATO:PERSONA] decision of 12 November 2008, laying down rules on the secondment to the [OSCURATO:PERSONA] of national experts and national experts in professional training.

41. Lastly, referring to [OSCURATO:PERSONA] 4 of the ILO [OSCURATO:PERSONA], [OSCURATO:PERSONA] 24(a) of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] 30 of the [OSCURATO:PERSONA], the applicant concludes that the termination of her employment is not based on legitimate grounds, in so far as those grounds were justified, on one hand, by budgetary constraints which are not accurate and, on the other hand, by the alleged removal of tasks for which in fact she was not responsible in the first place, whereas the ECSM project is still valid and is due to last for at least two more years.

42. [OSCURATO:PERSONA] contends that the second plea should be rejected. – Findings of the [OSCURATO:PERSONA]

43. [OSCURATO:PERSONA] notes that it is apparent from the contested decision that the termination of the applicant’s contract is based on the consideration that she does not have the training or the experience required to be redeployed to another existing or future post.

It is therefore necessary to examine whether, by basing the contested decision on such a consideration, [OSCURATO:PERSONA] committed a manifest error of assessment.

44. An error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject.

Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings upheld by the administration in its decision implausible.

In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid (judgments in AJ v [OSCURATO:PERSONA] , F‑80/10, EU:F:2011:172, paragraphs 34 and 35; Eklund v [OSCURATO:PERSONA] , F‑57/11, EU:F:2012:145, paragraph 51, and order in Mészáros v [OSCURATO:PERSONA] , F‑22/13, EU:F:2014:189, paragraph 52).

45. In that regard, the applicant’s argument that her activities within [OSCURATO:PERSONA] had not been linked to the awareness-raising field since 2011, given that she had been placed in charge of the ECSM project, must be rejected at the outset.

46. It is evident from her final job description, dated August 2012, that the applicant was primarily responsible for awareness-raising activities.

As it has already been noted in paragraph 35 above, the applicant did not dispute this description.

It is also apparent from the description of the ECSM project that, until 2013, the main objective of that project was awareness-raising.

47. [OSCURATO:PERSONA], it is common ground that, under [OSCURATO:PERSONA]’s new guidance and in particular its 2014 [OSCURATO:PERSONA], awareness-raising, which formerly was performed by a group of employees, became a task performed on a horizontal basis by all [OSCURATO:PERSONA] employees, and the role of those employees in the ECSM project developed into one of advising and providing technical assistance to the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] development led to all the new posts within [OSCURATO:PERSONA] becoming highly technical, so that their holders required specific university qualifications in computer science.

48. Lastly, it is not disputed that the applicant was very committed to the field of awareness-raising.

49. It follows that the decision to terminate the applicant’s contract on the ground that she had demonstrated neither qualifications nor professional experience which might be used in the performance of tasks requiring highly technical qualifications cannot be regarded as vitiated by a manifest error of assessment.

50. The applicant’s argument relating to the presence of a seconded national expert must be rejected, since she does not claim that the contested decision was adopted in order to permit the secondment of a national expert and to recruit that expert in her place.

51. As regards the references to [OSCURATO:PERSONA] 4 of the ILO [OSCURATO:PERSONA], to [OSCURATO:PERSONA] 24(a) of the [OSCURATO:PERSONA] and to [OSCURATO:PERSONA] 30 of the [OSCURATO:PERSONA], it must be observed that, in its judgment in ETF v Schuerings , T‑107/11 P, EU:T:2013:624, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] held: ‘100 [OSCURATO:PERSONA] 30 of the [C]harter … does not lay down any specific obligations.

It cannot be inferred from it that, in a case such as the present, the [agency] necessarily has a prior obligation to examine the possibility of redeploying the member of staff such as that identified by the [OSCURATO:PERSONA] ….

Nor does that provision preclude, having regard to all the facts of the case, the termination decision from being regarded as justified.

In this connection, the special operational constraints of agencies, the existence of measures to support the member of staff whose employment is at risk of termination or consideration of the possibility of his transfer to another agency or institution may, in particular, be regarded as relevant circumstances. 101 As regards, for the sake of completeness also, the legal instruments in the field of employment law relied on by [the applicant], it must be noted that [OSCURATO:PERSONA] 4 of the [ILO] [OSCURATO:PERSONA] states that [“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[”], and that [OSCURATO:PERSONA] 24(a) of the [OSCURATO:PERSONA] ... 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[”].

Without it being necessary to rule on the issue of whether those legal instruments apply to the employment relationship, governed by the CEOS, between a member of the temporary staff and a [OSCURATO:PERSONA] agency, it must be held that it cannot be inferred either from the wording of the abovementioned texts that there is an obligation such as that imposed on an entity faced with the transfer of one of its activities to another entity ....’

52. In the light of that case-law, it follows that the second plea must be rejected. The plea lodged in the alternative, alleging an infringement of the duty of care or of the obligation to actively search for a redeployment solution – Arguments of the parties

53. Referring to the case-law of the ILO’s [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] and to [OSCURATO:PERSONA] 9 TFEU, the applicant submits that, under the duty of care, [OSCURATO:PERSONA] should have searched effectively and on a case-by-case basis for a post such as to correspond to her profile, also taking account of her experience within [OSCURATO:PERSONA], her university references and the appraisal of her performance as excellent.

The applicant argues that [OSCURATO:PERSONA] did not comply with that obligation. [OSCURATO:PERSONA], [OSCURATO:PERSONA] did not explain why her various qualifications and acquired experience would not enable her to perform the tasks of an expert in the field of network and information security.

She adds that the other members of the ‘Awareness-raising’ team were redeployed despite having completed their university studies in a different area. [OSCURATO:PERSONA] [OSCURATO:PERSONA] failed to inform the applicant of the vacant posts and so assist in her redeployment to another post.

Thirdly, under the case-law of the ILO’s [OSCURATO:PERSONA], [OSCURATO:PERSONA] was required to offer the applicant a redeployment solution, even if it was at a lower grade than her previous post.

Fourthly, the applicant identified various other fields in which [OSCURATO:PERSONA] operated in which her experience could be used, without the [OSCURATO:PERSONA] following this up.

The applicant concludes that, under the case-law cited, it is for the employer to prove that the profile of a member of staff does not meet the requirements of any job description.

54. [OSCURATO:PERSONA] contends that the plea raised in the alternative should be rejected. – Findings of the [OSCURATO:PERSONA]

55. [OSCURATO:PERSONA] 47(c)(i) of the CEOS provides that, apart from cessation on death, the employment of temporary staff, where the contract is for an indefinite period, is to cease at the end of the period of notice stipulated in the contract; the length of the period of notice may 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.

56. It is consistent case-law that, with regard to the termination of a contract for an indefinite period held by a member of the temporary staff, the competent authority has, pursuant to [OSCURATO:PERSONA] 47(c)(i) of the CEOS and subject to the period of notice contained in the contract, a broad discretion and the judicial review exercised by the [OSCURATO:PERSONA] judicature must therefore be limited to whether there has been a manifest error or a misuse of powers (judgment in ETF v Landgren , T‑404/06 P, EU:T:2009:313, paragraph 162 and the case-law cited).

57. It must also be pointed out that, in its judgment in ETF v Schuerings (EU:T:2013:624, paragraph 81), the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] ruled that the duty of care cannot warrant an interpretation of [OSCURATO:PERSONA] 47(c)(i) of the CEOS under which the competent authority must examine, prior to terminating the employment of a member of the temporary staff employed on the basis of a contract for an indefinite period, whether that member of staff could be redeployed to another existing post or a post about to be created. [OSCURATO:PERSONA] confirmed the case-law at paragraph 57 of the judgment in [OSCURATO:PERSONA] v Macchia (T‑368/12 P, EU:T:2014:266).

58. It follows that in the light of that case-law, the applicant cannot claim that [OSCURATO:PERSONA] should have effectively searched for a post which would correspond to her profile.

59. As regards the case-law of the ILO [OSCURATO:PERSONA], it is sufficient to observe that that case-law does not warrant the [OSCURATO:PERSONA] departing from the [OSCURATO:PERSONA] judgment in ETF v Schuerings (EU:T:2013:624), in which the judgment at first instance was set aside on appeal.

60. So far as concerns [OSCURATO:PERSONA] 9 TFEU, that provision does not lay down any specific obligations.

It cannot be inferred from it that, in a case such as that presently before the [OSCURATO:PERSONA], there is necessarily a prior obligation on [OSCURATO:PERSONA] to examine the possibility of redeploying the member of staff.

61. It follows that the applicant cannot claim that the contested decision is unlawful on the ground that [OSCURATO:PERSONA], before the adoption of that decision, did not examine whether her profile corresponded to another existing or future post within [OSCURATO:PERSONA].

62. Consequently, the plea raised in the alternative must be rejected.

63. Since all the pleas have been rejected, the claim for annulment must be rejected. The claim for compensation Arguments of the parties

64. The applicant submits that the infringement of the rights described above has caused her non-material harm.

Not only was her employment terminated, but she was also required actively to search for a redeployment solution, to no avail, given the lack of any intention on [OSCURATO:PERSONA]’s part to give her a chance.

She evaluates her non-material harm, on equitable principles, at EUR 10 000.

65. [OSCURATO:PERSONA] contends that the claim for compensation should be rejected. Findings of the [OSCURATO:PERSONA]

66. According to consistent case-law in the civil service field, where a claim for compensation is closely connected with a claim for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the claim for compensation (judgments in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑214/02, EU:T:2003:254, paragraph 43; [OSCURATO:PERSONA] v Cedefop , F‑47/09, EU:F:2010:36, paragraph 119, and Časta v [OSCURATO:PERSONA] , F‑40/09, EU:F:2010:74, paragraph 94).

67. In the present case, the claim for annulment has been rejected.

68. Consequently, the claim for compensation must also be rejected.

69. It follows from all the foregoing that the action must be dismissed in its entirety. Costs

70. Pursuant to [OSCURATO:PERSONA] 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. [OSCURATO:PERSONA] 102(1) of those Rules, if equity so requires, the [OSCURATO:PERSONA] may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.

71. It follows from the grounds set out in the present judgment that the applicant has been unsuccessful in her action.

Furthermore, in its pleadings, [OSCURATO:PERSONA] has expressly requested that the applicant be ordered to pay the costs.

Since the circumstances of the case do not warrant the application of the provisions of [OSCURATO:PERSONA] 102(1) of the Rules of Procedure, the applicant must bear her own costs and is ordered to pay the costs incurred by [OSCURATO:PERSONA]. [OSCURATO:PERSONA] part On those grounds,

[OSCURATO:PERSONA]

([OSCURATO:PERSONA])

hereby:

1. Dismisses the action.

2. Declares that DG is to bear her own costs and orders her to pay the costs incurred by the [OSCURATO:PERSONA] for Network and [OSCURATO:PERSONA].

Anonimizzato ex art. 52 D.Lgs. 196/2003
62013FJ0109_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] F‑109/13, ACTION brought under [OSCURATO:PERSONA] 270 TFEU, DG, a former member of the temporary staff of the [OSCURATO:PERSONA] for Network and [OSCURATO:PERSONA], residing in Heraklion (Greece), represented by L. Levi and A. Tymen, lawyers, applicant, v [OSCURATO:PERSONA] for Network and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), represented initially by P. Empadinhas, acting as Agent, and by C. Meidanis, lawyer, and subsequently by P. Empadinhas and S. Purser, acting as Agents, and by C. Meidanis, lawyer, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of E. Perillo, acting as President, R. Barents (Rapporteur) and K. Bradley, Judges, Registrar: X. [OSCURATO:PERSONA], [OSCURATO:PERSONA], having regard to the written procedure and further to the hearing on 25 June 2014, gives the following [OSCURATO:PERSONA] 1. By application received by the [OSCURATO:PERSONA] on 4 November 2013, DG seeks, first, the annulment of the decision of the [OSCURATO:PERSONA] for Network and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) of 31 January 2013 terminating her employment contract and, secondly, her reinstatement, the payment of her financial benefits from the effective date of the termination of her contract until her reinstatement and compensation in respect of the non-material harm which she considers herself to have suffered. Legal context 2. The legal context of the present case is constituted by [OSCURATO:PERSONA] 30 of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], [OSCURATO:PERSONA] 9 TFEU and [OSCURATO:PERSONA] 47(c)(i) of the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in the version prior to the entry into force of [OSCURATO:PERSONA] (EU, Euratom) No 1023/2013 of the [OSCURATO:PERSONA] and of the Council of 22 October 2013 amending the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] and the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (‘the CEOS’). 3. [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 158 of the [OSCURATO:PERSONA] (‘the ILO [OSCURATO:PERSONA]’) concerning termination of employment at the initiative of the employer, adopted on 22 June 1982, states: ‘The 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.’ 4. [OSCURATO:PERSONA] 24(a) of the [OSCURATO:PERSONA], signed at Turin on 18 October 1961 and revised at Strasbourg on 3 May 1996, 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. Facts 5. On 1 September 2005, the applicant was recruited by [OSCURATO:PERSONA] as a member of the temporary staff at Grade AD 9, for a three-year period as an expert in the field of awareness-raising and promotion of best practices concerning network and information security. [OSCURATO:PERSONA] 2008, she was employed on a contract for an indefinite period. 6. [OSCURATO:PERSONA] 2005 to 2010 she led the ‘Awareness-raising’ section. [OSCURATO:PERSONA] 2011, she was in charge of the ‘[OSCURATO:PERSONA][OSCURATO:PERSONA]’ project (‘the ECSM project’). 7. On 27 November 2012, the Board of Directors of [OSCURATO:PERSONA] adopted the 2013 [OSCURATO:PERSONA]. [OSCURATO:PERSONA] that programme, following which the ‘Awareness-raising’ department was dismantled, raising public awareness concerning network and information security was to become a task performed ‘horizontally’. 8. [OSCURATO:PERSONA] 2013-2015, adopted at the end of 2012, states as follows: ‘It is … the view of [[OSCURATO:PERSONA]] that [OSCURATO:PERSONA] 3 of [OSCURATO:PERSONA] [No] 460/2004 listing the tasks of [[OSCURATO:PERSONA]], among which awareness-raising, provides for a general task of [[OSCURATO:PERSONA]] to which all the operational sections and organisational entities dealing with external communication should be contributing in their daily work and annual deliverables. The central idea behind this development is that all [OSCURATO:PERSONA] staff will not only carry out awareness-raising activities, but will also have the knowledge and experience to enable them to describe how such activities increase the impact of [[OSCURATO:PERSONA]].’ 9. On 5 December 2012, a meeting was held in the presence of the applicant, [OSCURATO:PERSONA]’s [OSCURATO:PERSONA] and the head of the ‘[OSCURATO:PERSONA]’ department during which the [OSCURATO:PERSONA] explained that the implementation of the [OSCURATO:PERSONA] 2013 and the [OSCURATO:PERSONA] 2013-2015 required [OSCURATO:PERSONA] to undertake new tasks in certain technical fields, but that no new posts were envisaged to support this additional workload on account of budgetary restrictions, that, consequently, new posts were to be created by the redeployment of staff in awareness-raising posts of lesser importance and that, rather than dismissing the persons currently in those posts, including the applicant herself, [OSCURATO:PERSONA] would try to redeploy them, provided they had the necessary qualifications. 10. On 7 December 2012, the [OSCURATO:PERSONA] sent a letter to the applicant, summarising and confirming what had been said at the meeting of 5 December 2012 and asking the applicant to inform [OSCURATO:PERSONA] as soon as possible and before 21 December 2012 of any acquired knowledge or professional experience which would make her suitable for appointment to one of the posts to be created. 11. By email of 12 December 2012 to the [OSCURATO:PERSONA], the applicant confirmed that she had received a copy of the letter of 7 December 2012 on 11 December 2012 in the afternoon. Since she had an exceptional workload owing to a draft report which had to be finalised quickly, she asked in that email, on account of the importance of the subject-matter, to be granted an additional period of 1 day, and stated that she would submit her reply at the latest during the day on 21 December 2012. 12. On 19 December 2012, the [OSCURATO:PERSONA] issued a reprimand to the applicant, taking the view that she had deliberately lied in declaring, in her email of 12 December 2012, that she had received the letter of 7 December 2012 on 11 December 2012 in the afternoon, whereas she had received it on 7 December 2012, as evidenced by a cross-check on [OSCURATO:PERSONA]’s computer system. 13. By letter of 20 December 2012, the applicant replied to the letter of 7 December 2012. 14. By letter of 31 January 2013, the [OSCURATO:PERSONA] informed the applicant that she had not demonstrated a usable skill or experience for the posts to be created, that is to say, the posts of experts in network and information security, and that, consequently, he had decided to terminate her contract (‘the contested decision’). 15. By letter of 24 April 2013, the applicant lodged a complaint under [OSCURATO:PERSONA] 90(2) of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] (‘the [OSCURATO:PERSONA]’). 16. By letter of 22 August 2013, that complaint was rejected (‘the decision rejecting the complaint’). Forms of order sought and procedure 17. The applicant claims that the [OSCURATO:PERSONA] should: – annul the contested decision; – annul the decision rejecting the complaint; – order her reinstatement and pay the financial benefits due to her from the effective date of the termination of her contract until her reinstatement, with the deduction of any income earned by her over that period, plus interest for late payment calculated at the rate set by the [OSCURATO:PERSONA], increased by three points; – pay compensation to her in respect of the non-material harm suffered, assessed on equitable principles at EUR 10 000; – order [OSCURATO:PERSONA] to pay the costs. 18. [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the application for annulment; – dismiss the applicant’s application for reinstatement and the application for payment of financial benefits in respect of the period between the date of termination of her contract and the date of her reinstatement; – dismiss the application for compensation for non- material harm; – order the applicant to pay the costs. 19. By letter of 19 March 2014, the applicant lodged an offer of further evidence. [OSCURATO:PERSONA] offer of further evidence of 19 March 2014 20. By letter of 19 March 2014, the applicant made an offer of further evidence, which included a declaration of 3 March 2014 from the former head of [OSCURATO:PERSONA]’s [OSCURATO:PERSONA], a declaration of 14 March 2014 from the former deputy director of [OSCURATO:PERSONA]’s [OSCURATO:PERSONA], the 2005 vacancy notice for the applicant’s post and two emails of 29 October and 28 November 2013. 21. According to [OSCURATO:PERSONA] 57 of the Rules of Procedure, the parties may offer further evidence in support of their arguments up until the end of the hearing, on condition that the delay in offering to produce it is duly justified. 22. Since the applicant has not justified the delay in the production of those documents, the offer of further evidence of 19 March 2014 must be rejected. The claim for annulment of the decision rejecting the complaint 23. It is settled case-law that claims for annulment formally directed against the decision rejecting a complaint, where that decision has no independent content, have the effect of bringing before the [OSCURATO:PERSONA] the act against which the complaint was submitted (judgment in Vainker v [OSCURATO:PERSONA] , 293/87, EU:C:1989:8, paragraph 8). Since, in this case, the decision rejecting the complaint has no independent content, the action must be regarded as directed against the constested decision. The claim seeking the applicant’s reinstatement and payment of her financial benefits 24. It is settled case-law that the Courts of the [OSCURATO:PERSONA] have no jurisdiction to issue directions to the institutions (judgment in V v [OSCURATO:PERSONA] , F‑46/09, EU:F:2011:101, paragraph 63 and the case-law cited). 25. In an action brought under [OSCURATO:PERSONA] 91 of the [OSCURATO:PERSONA], heads of claim requesting the [OSCURATO:PERSONA] to address directions to the administration or to recognise the validity of certain pleas in law relied on in support of a claim for annulment are manifestly inadmissible, since it is not for the [OSCURATO:PERSONA] judicature to issue directions to the institutions of the [OSCURATO:PERSONA] or to make statements of law in the abstract. [OSCURATO:PERSONA] applies to claims requesting the [OSCURATO:PERSONA] to establish the existence of certain facts and to instruct the administration to adopt the measures required to reinstate the person concerned in their rights (see, to that effect, order in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , F‑11/10, EU:F:2010:69, paragraphs 29 to 31). 26. Consequently, the head of claim by which the applicant seeks her reinstatement and the payment of her financial benefits in respect of the period between the date of termination of her contract and the date of her reinstatement must be rejected as inadmissible. The claim for annulment of the contested decision 27. In support of her action, the applicant puts forward three pleas in law, alleging, first, misuse of powers, secondly, a failure to state reasons and a manifest error of assessment and, thirdly, infringement of the duty of care or of the obligation to actively search for a redeployment solution. 28. Following questions put at the hearing on the relationship between the second and third pleas, the applicant stated that the plea alleging the infringement of the duty of care constitutes a plea lodged in the alternative to the second plea. The first plea, alleging a misuse of powers – Arguments of the parties 29. The applicant claims that she was the victim of a ‘constructive dismissal’, which is vitiated by a misuse of powers. [OSCURATO:PERSONA], [OSCURATO:PERSONA] did not follow the applicable procedure for the career development report. Had she been informed of the assessment of her performance, her objectives and recommended training, she could have trained in relevant fields for the future of [OSCURATO:PERSONA]. [OSCURATO:PERSONA], [OSCURATO:PERSONA] did not describe the actual and current changes in her duties in her job description. Furthermore, without any prior consultation, she received a new job description in August 2012 referring to the field of awareness-raising, whereas this was the only field in which she no longer carried out duties. Thirdly, she was not officially informed until December 2012 that the reorganisation of the policy on awareness-raising might affect her post, nor did [OSCURATO:PERSONA] explain why the management of the ECSM project required the presence of an engineer. Fourthly, the disciplinary procedure took place within the critical period and was therefore probably carried out in order to undermine her position. Lastly, the applicant points out that there were some rumours circulating within [OSCURATO:PERSONA] regarding the imminent termination of her employment. According to the applicant, all those factors indicated that [OSCURATO:PERSONA], in a process beginning in 2011, succeeded in giving the impression in 2013 that there was no option other than to terminate her contract, whereas in fact that was not the case. 30. [OSCURATO:PERSONA] contends that the first plea should be rejected. – Findings of the [OSCURATO:PERSONA] 31. It is settled case-law that there is no misuse of powers unless there is objective, relevant and consistent evidence which makes it possible to establish that the contested act pursued an aim other than that ascribed to it by the applicable provisions of the [OSCURATO:PERSONA] (judgment in Skareby v [OSCURATO:PERSONA] , F‑46/06, EU:F:2008:26, paragraph 156). 32. In this connection, it is not enough for the applicant to rely on certain facts in support of her claims; she must also adduce evidence of a sufficiently specific, objective and consistent nature to support their truth or, at the very least, their probability, failing which the material accuracy of [OSCURATO:PERSONA]’s claims cannot be called into question (see judgment in Skareby v [OSCURATO:PERSONA] , EU:F:2008:26, paragraph 157). 33. So far as concerns the argument relating to the lack of a career development report in respect of 2011, it must be observed that that argument fails to have regard to the fact that the 2013 [OSCURATO:PERSONA] was adopted by the Board of Directors only on 27 November 2012 and that it was only following the adoption of that programme that the awareness-raising activities were classified as a general task of [OSCURATO:PERSONA] to which all operational sections and all organisational entities responsible for external communication should henceforth contribute in their daily work and by means of their annual results. Therefore the applicant cannot claim that if her career development report in respect of 2011 had been drawn up in conformity with the rules in force, she would have been able to anticipate the possible consequences with regard to her future duties within [OSCURATO:PERSONA]. 34. Furthermore, there is nothing in the file to show that, in accordance with [OSCURATO:PERSONA] 5(12) of the Decision of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] of 10 September 2008 on general provisions for implementing [OSCURATO:PERSONA] 43 of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] 15 of the Conditions of Employment of [OSCURATO:PERSONA], the applicant referred the matter to the countersigning officer where the reporting officer failed to comply with the time-limits for drawing up the career development report. In any event, in an email of 28 February 2012, the applicant stated that she had familiarised herself with the draft 2013 [OSCURATO:PERSONA] and expressed the wish to establish a training schedule in order to enhance her knowledge with a view to the forthcoming changes. 35. The argument relating to the actual and current changes concerning her duties in her job description must be rejected. The contested decision was adopted notwithstanding the applicant’s activities in the field of awareness-raising and the ECSM project, and is based on the consideration that she did not have the academic training or experience necessary to be redeployed to other posts. In any event, the applicant did not express any objections concerning the reference, in her new job description, to the field of awareness-raising. 36. The third argument has no factual basis. It was only after the adoption of the 2013 [OSCURATO:PERSONA], on 27 November 2012, that [OSCURATO:PERSONA] had to address changes in its human resources policy resulting from that programme. It is common ground that the applicant was informed, on 5 December 2012, by the [OSCURATO:PERSONA], of the consequences for her individual situation. On any view, the applicant has not shown how prior notification of those consequences could have improved her chances of being redeployed within [OSCURATO:PERSONA]. 37. So far as concerns the fourth argument, it is sufficient to note that this is a mere contention, and the applicant has not provided any evidence capable of proving that the disciplinary procedure and the alleged rumours influenced or could have influenced the final outcome or the content of the contested decision. 38. It follows that the first plea must be rejected. The second plea, alleging a manifest error of assessment and infringement of the obligation to state reasons – Arguments of the parties 39. The applicant submits that, in the absence of a genuine restriction on staff numbers and of the possibility of a new allocation of resources, as is apparent from the [OSCURATO:PERSONA] document entitled ‘Changes related to [OSCURATO:PERSONA] review – cutting staff by 5%’, [OSCURATO:PERSONA]’s ‘preventative’ approach of terminating the employment of members of staff is not legitimate. She adds that, according to the document ‘[OSCURATO:PERSONA] – Agencies financial statement’, [OSCURATO:PERSONA] requested six new posts, one of which broadly fell under the ECSM project for which the applicant was responsible. According to the applicant, the scope and the content of the ECSM project could not warrant the termination of her employment given that [OSCURATO:PERSONA] continued to carry out both awareness-raising activities and activities relating to the ECSM project. In this connection, the applicant observes that she participated in a range of activities concerning the management of the ECSM project and that, from 2011, she did not perform any further activities in the awareness-raising field. Moreover, that project had been entrusted to her for the previous two years and was supposed to last for a period covering at least the following two years, as is apparent from the 2013 and 2014 [OSCURATO:PERSONA]. 40. The applicant also submits that one of the persons to whom the ECSM project was entrusted is a seconded national expert, which is contrary to [OSCURATO:PERSONA] 6 of the [OSCURATO:PERSONA] decision of 12 November 2008, laying down rules on the secondment to the [OSCURATO:PERSONA] of national experts and national experts in professional training. 41. Lastly, referring to [OSCURATO:PERSONA] 4 of the ILO [OSCURATO:PERSONA], [OSCURATO:PERSONA] 24(a) of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] 30 of the [OSCURATO:PERSONA], the applicant concludes that the termination of her employment is not based on legitimate grounds, in so far as those grounds were justified, on one hand, by budgetary constraints which are not accurate and, on the other hand, by the alleged removal of tasks for which in fact she was not responsible in the first place, whereas the ECSM project is still valid and is due to last for at least two more years. 42. [OSCURATO:PERSONA] contends that the second plea should be rejected. – Findings of the [OSCURATO:PERSONA] 43. [OSCURATO:PERSONA] notes that it is apparent from the contested decision that the termination of the applicant’s contract is based on the consideration that she does not have the training or the experience required to be redeployed to another existing or future post. It is therefore necessary to examine whether, by basing the contested decision on such a consideration, [OSCURATO:PERSONA] committed a manifest error of assessment. 44. An error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings upheld by the administration in its decision implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid (judgments in AJ v [OSCURATO:PERSONA] , F‑80/10, EU:F:2011:172, paragraphs 34 and 35; Eklund v [OSCURATO:PERSONA] , F‑57/11, EU:F:2012:145, paragraph 51, and order in Mészáros v [OSCURATO:PERSONA] , F‑22/13, EU:F:2014:189, paragraph 52). 45. In that regard, the applicant’s argument that her activities within [OSCURATO:PERSONA] had not been linked to the awareness-raising field since 2011, given that she had been placed in charge of the ECSM project, must be rejected at the outset. 46. It is evident from her final job description, dated August 2012, that the applicant was primarily responsible for awareness-raising activities. As it has already been noted in paragraph 35 above, the applicant did not dispute this description. It is also apparent from the description of the ECSM project that, until 2013, the main objective of that project was awareness-raising. 47. [OSCURATO:PERSONA], it is common ground that, under [OSCURATO:PERSONA]’s new guidance and in particular its 2014 [OSCURATO:PERSONA], awareness-raising, which formerly was performed by a group of employees, became a task performed on a horizontal basis by all [OSCURATO:PERSONA] employees, and the role of those employees in the ECSM project developed into one of advising and providing technical assistance to the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] development led to all the new posts within [OSCURATO:PERSONA] becoming highly technical, so that their holders required specific university qualifications in computer science. 48. Lastly, it is not disputed that the applicant was very committed to the field of awareness-raising. 49. It follows that the decision to terminate the applicant’s contract on the ground that she had demonstrated neither qualifications nor professional experience which might be used in the performance of tasks requiring highly technical qualifications cannot be regarded as vitiated by a manifest error of assessment. 50. The applicant’s argument relating to the presence of a seconded national expert must be rejected, since she does not claim that the contested decision was adopted in order to permit the secondment of a national expert and to recruit that expert in her place. 51. As regards the references to [OSCURATO:PERSONA] 4 of the ILO [OSCURATO:PERSONA], to [OSCURATO:PERSONA] 24(a) of the [OSCURATO:PERSONA] and to [OSCURATO:PERSONA] 30 of the [OSCURATO:PERSONA], it must be observed that, in its judgment in ETF v Schuerings , T‑107/11 P, EU:T:2013:624, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] held: ‘100 [OSCURATO:PERSONA] 30 of the [C]harter … does not lay down any specific obligations. It cannot be inferred from it that, in a case such as the present, the [agency] necessarily has a prior obligation to examine the possibility of redeploying the member of staff such as that identified by the [OSCURATO:PERSONA] …. Nor does that provision preclude, having regard to all the facts of the case, the termination decision from being regarded as justified. In this connection, the special operational constraints of agencies, the existence of measures to support the member of staff whose employment is at risk of termination or consideration of the possibility of his transfer to another agency or institution may, in particular, be regarded as relevant circumstances. 101 As regards, for the sake of completeness also, the legal instruments in the field of employment law relied on by [the applicant], it must be noted that [OSCURATO:PERSONA] 4 of the [ILO] [OSCURATO:PERSONA] states that [“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[”], and that [OSCURATO:PERSONA] 24(a) of the [OSCURATO:PERSONA] ... 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[”]. Without it being necessary to rule on the issue of whether those legal instruments apply to the employment relationship, governed by the CEOS, between a member of the temporary staff and a [OSCURATO:PERSONA] agency, it must be held that it cannot be inferred either from the wording of the abovementioned texts that there is an obligation such as that imposed on an entity faced with the transfer of one of its activities to another entity ....’ 52. In the light of that case-law, it follows that the second plea must be rejected. The plea lodged in the alternative, alleging an infringement of the duty of care or of the obligation to actively search for a redeployment solution – Arguments of the parties 53. Referring to the case-law of the ILO’s [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] and to [OSCURATO:PERSONA] 9 TFEU, the applicant submits that, under the duty of care, [OSCURATO:PERSONA] should have searched effectively and on a case-by-case basis for a post such as to correspond to her profile, also taking account of her experience within [OSCURATO:PERSONA], her university references and the appraisal of her performance as excellent. The applicant argues that [OSCURATO:PERSONA] did not comply with that obligation. [OSCURATO:PERSONA], [OSCURATO:PERSONA] did not explain why her various qualifications and acquired experience would not enable her to perform the tasks of an expert in the field of network and information security. She adds that the other members of the ‘Awareness-raising’ team were redeployed despite having completed their university studies in a different area. [OSCURATO:PERSONA] [OSCURATO:PERSONA] failed to inform the applicant of the vacant posts and so assist in her redeployment to another post. Thirdly, under the case-law of the ILO’s [OSCURATO:PERSONA], [OSCURATO:PERSONA] was required to offer the applicant a redeployment solution, even if it was at a lower grade than her previous post. Fourthly, the applicant identified various other fields in which [OSCURATO:PERSONA] operated in which her experience could be used, without the [OSCURATO:PERSONA] following this up. The applicant concludes that, under the case-law cited, it is for the employer to prove that the profile of a member of staff does not meet the requirements of any job description. 54. [OSCURATO:PERSONA] contends that the plea raised in the alternative should be rejected. – Findings of the [OSCURATO:PERSONA] 55. [OSCURATO:PERSONA] 47(c)(i) of the CEOS provides that, apart from cessation on death, the employment of temporary staff, where the contract is for an indefinite period, is to cease at the end of the period of notice stipulated in the contract; the length of the period of notice may 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. 56. It is consistent case-law that, with regard to the termination of a contract for an indefinite period held by a member of the temporary staff, the competent authority has, pursuant to [OSCURATO:PERSONA] 47(c)(i) of the CEOS and subject to the period of notice contained in the contract, a broad discretion and the judicial review exercised by the [OSCURATO:PERSONA] judicature must therefore be limited to whether there has been a manifest error or a misuse of powers (judgment in ETF v Landgren , T‑404/06 P, EU:T:2009:313, paragraph 162 and the case-law cited). 57. It must also be pointed out that, in its judgment in ETF v Schuerings (EU:T:2013:624, paragraph 81), the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] ruled that the duty of care cannot warrant an interpretation of [OSCURATO:PERSONA] 47(c)(i) of the CEOS under which the competent authority must examine, prior to terminating the employment of a member of the temporary staff employed on the basis of a contract for an indefinite period, whether that member of staff could be redeployed to another existing post or a post about to be created. [OSCURATO:PERSONA] confirmed the case-law at paragraph 57 of the judgment in [OSCURATO:PERSONA] v Macchia (T‑368/12 P, EU:T:2014:266). 58. It follows that in the light of that case-law, the applicant cannot claim that [OSCURATO:PERSONA] should have effectively searched for a post which would correspond to her profile. 59. As regards the case-law of the ILO [OSCURATO:PERSONA], it is sufficient to observe that that case-law does not warrant the [OSCURATO:PERSONA] departing from the [OSCURATO:PERSONA] judgment in ETF v Schuerings (EU:T:2013:624), in which the judgment at first instance was set aside on appeal. 60. So far as concerns [OSCURATO:PERSONA] 9 TFEU, that provision does not lay down any specific obligations. It cannot be inferred from it that, in a case such as that presently before the [OSCURATO:PERSONA], there is necessarily a prior obligation on [OSCURATO:PERSONA] to examine the possibility of redeploying the member of staff. 61. It follows that the applicant cannot claim that the contested decision is unlawful on the ground that [OSCURATO:PERSONA], before the adoption of that decision, did not examine whether her profile corresponded to another existing or future post within [OSCURATO:PERSONA]. 62. Consequently, the plea raised in the alternative must be rejected. 63. Since all the pleas have been rejected, the claim for annulment must be rejected. The claim for compensation Arguments of the parties 64. The applicant submits that the infringement of the rights described above has caused her non-material harm. Not only was her employment terminated, but she was also required actively to search for a redeployment solution, to no avail, given the lack of any intention on [OSCURATO:PERSONA]’s part to give her a chance. She evaluates her non-material harm, on equitable principles, at EUR 10 000. 65. [OSCURATO:PERSONA] contends that the claim for compensation should be rejected. Findings of the [OSCURATO:PERSONA] 66. According to consistent case-law in the civil service field, where a claim for compensation is closely connected with a claim for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the claim for compensation (judgments in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑214/02, EU:T:2003:254, paragraph 43; [OSCURATO:PERSONA] v Cedefop , F‑47/09, EU:F:2010:36, paragraph 119, and Časta v [OSCURATO:PERSONA] , F‑40/09, EU:F:2010:74, paragraph 94). 67. In the present case, the claim for annulment has been rejected. 68. Consequently, the claim for compensation must also be rejected. 69. It follows from all the foregoing that the action must be dismissed in its entirety. Costs 70. Pursuant to [OSCURATO:PERSONA] 101 of the Rules of Procedure, subject to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. [OSCURATO:PERSONA] 102(1) of those Rules, if equity so requires, the [OSCURATO:PERSONA] may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs. 71. It follows from the grounds set out in the present judgment that the applicant has been unsuccessful in her action. Furthermore, in its pleadings, [OSCURATO:PERSONA] has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the case do not warrant the application of the provisions of [OSCURATO:PERSONA] 102(1) of the Rules of Procedure, the applicant must bear her own costs and is ordered to pay the costs incurred by [OSCURATO:PERSONA]. [OSCURATO:PERSONA] part On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the action. 2. Declares that DG is to bear her own costs and orders her to pay the costs incurred by the [OSCURATO:PERSONA] for Network and [OSCURATO:PERSONA].
Sentenza Corte di giustizia UE n. 1023/2014 — Fons Iuris — Fons Iuris