Corte di giustizia UE/2014

62013FO0115(01) [OSCURATO:PERSONA] [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 10 December 2014 ( *1 ) ‛[OSCURATO:PERSONA] service — Member of the contract staff — Non-renewal of a fixed term contract — Action manifestly inadmissible and manifestly lacking any foundation in law’ [OSCURATO:PERSONA] F‑115/13, ACTION brought pursuant to [OSCURATO:PERSONA] 270 [OSCURATO:PERSONA], [OSCURATO:PERSONA], former member of the contract staff at the [OSCURATO:PERSONA], residing in Konz (Germany), represented by A. Bertolini, lawyer, applicant, v [OSCURATO:PERSONA] (EEA), represented by S. Nielsen, acting as Agent, and B. Wägenbaur, lawyer, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) composed of K. [OSCURATO:PERSONA], [OSCURATO:PERSONA], H. Kreppel (Rapporteur) and M.I. Rofes i Pujol, Judges, [OSCURATO:PERSONA]: W. [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By application received at the [OSCURATO:PERSONA] on 29 November 2013, [OSCURATO:PERSONA] challenges the decision by which the [OSCURATO:PERSONA] (EEA) refused to renew her contract as a member of the contract staff and seeks compensation for the harm which she has suffered as a result of that decision. Factual background to the dispute 2 The applicant was recruited by the EEA on the basis of a contract as a member of the contract staff within the meaning of [OSCURATO:PERSONA] 3a of the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] to carry out the duties of a ‘legal advisor [for the [OSCURATO:PERSONA] for [OSCURATO:PERSONA] and Security programme]’ (‘GMES programme’). According to [OSCURATO:PERSONA] 5 of the contract, it was concluded for a three-year term. 3 After her recruitment, the applicant was assigned to a support group (‘[OSCURATO:PERSONA] 1’) responsible for the management of the GMES in situ coordination project (‘the GISC project’). 4 During a meeting held on 7 February 2013, the [OSCURATO:PERSONA] of the EEA, in response to a question from the applicant, informed her that her contract might not be renewed. 5 By letter from the [OSCURATO:PERSONA] of the EEA of 26 February 2013, the applicant was informed that her employment within the EEA would terminate on the expiry of her contract, that is, on 31 August 2013 (‘the contested decision’). It is not disputed by the parties that no offer was made to renew the applicant’s contract. 6 By note of 1 May 2013, the applicant brought a complaint against the contested decision and requested that a new contract be concluded employing her as a member of the contract staff. 7 By decision of 29 August 2013, the [OSCURATO:PERSONA] of the EEA, in his capacity as the authority authorised to conclude contracts of employment, rejected the complaint (‘the decision rejecting the complaint’). Forms of order sought and procedure 8 The applicant claims that the [OSCURATO:PERSONA] should: ‘[—] annul the decision [rejecting the complaint]; and consequently, [—] reinstate [her] in the post which she held or in another post [suited] to her competencies within the EEA by way of extension of her contract in accordance with the requirements of the regulations; [—] alternatively, and in the event that the claim for reinstatement … is not upheld, order the [EEA] to compensate [her] for the material harm suffered, provisionally estimated, ex aequo et bono , as [the amount of] the remuneration which she would have received as a member of the contract … staff within EEA at the very least for a length of time [equivalent] to that of her initial contract (three years); [—] in any event, order the [EEA] to pay a provisional e x aequo et bono sum of EUR 5 000 in compensation for the non-material damage, together with [default] interest at the statutory rate as from the date of the judgment [to be delivered]; [—] order the [EEA] to pay the costs’. 9 The EEA contends that the [OSCURATO:PERSONA] should: ‘[— dismiss] the application; [— o]rder the applicant to pay all the costs, including those of the [EEA]’. 10 The case, initially assigned to the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], was reassigned to the [OSCURATO:PERSONA] by decision of the full court of 1 October 2014. Law 11 [OSCURATO:PERSONA] 81 of the Rules of Procedure, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the [OSCURATO:PERSONA] may, without taking further steps in the proceedings, give a decision on the action by reasoned order. 12 In the present case, the [OSCURATO:PERSONA] considers that it has enough information from the file and from case-law and has decided, pursuant to [OSCURATO:PERSONA] 81 of the Rules of Procedure, to give a decision without taking further steps in the proceedings. The claim seeking the applicant’s reinstatement within the EEA 13 It is settled case-law that, in proceedings for judicial review under [OSCURATO:PERSONA] 91 of the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA], it is not for the Courts of the [OSCURATO:PERSONA] to issue injunctions to the administration (see judgment in [OSCURATO:PERSONA] v Commission , T‑14/03, EU:T:2004:59 , paragraph 63). Consequently, the applicant’s claim seeking that the [OSCURATO:PERSONA] order the EEA to ‘reinstate [her] in the post which she held or in another post [suited] to her competencies’ must be rejected as manifestly inadmissible. The claim seeking annulment of the decision rejecting the complaint Preliminary remarks 14 It is settled case-law that claims for annulment formally directed against the decision rejecting a complaint have, where that decision has no independent content, the effect of bringing before the [OSCURATO:PERSONA] the act against which the complaint was submitted (see, to that effect, judgment in Vainker v Parliament , 293/87, EU:C:1989:8 , paragraph 8). Accordingly, since the decision rejecting the complaint has no independent content in the present case, the claim for its annulment must be regarded as in fact directed against the contested decision. 15 Although the applicant formally raises three pleas in law against the contested decision, the arguments which she puts forward in support of those three pleas can be grouped together into two pleas in law, one alleging a manifest error of assessment and infringement of the duty of care and the other, infringement of the principle of equality. The plea alleging manifest error of assessment and infringement of the duty of care – Arguments of the parties 16 The applicant claims that, by recruiting another member of the contract staff to deal with the tasks which she had carried out up to that point rather than renewing her contract as a member of the contract staff, the EEA committed a manifest error of assessment and infringed its duty of care. She adds that, at the very least, the EEA should have offered to employ her in one or other of the two posts declared vacant in October 2012 and January 2013 within the EEA’s administrative departments and in respect of which she fulfilled the selection criteria. Lastly, the applicant argues that the contested decision forced her to leave Denmark with a child of school age and adds that, since she has not found alternative employment since her contract expired, she has suffered a significant loss of income. 17 The EEA contends that the plea should be rejected. – Findings of the [OSCURATO:PERSONA] 18 According to consistent case-law, the prospect of renewal of a fixed term contract as a member of the contract staff is merely a possibility left to the discretion of the competent authority, the institutions having a wide discretion in this connection to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks on condition, however, that the staff are assigned in the interest of the service (see, by analogy, regarding the non-renewal of a temporary staff contract, the judgment in Potamianos v Commission , T‑160/04, EU:T:2008:438 , paragraph 30). 19 In addition, the appointing authority is required, when it takes a decision concerning the situation of a member of staff, to take into consideration all the factors which may affect its decision, that is to say, not only the interest of the service, but also, in particular, that of the member of staff concerned. That follows from the administration’s duty of care, which reflects the balance of reciprocal rights and obligations which the [OSCURATO:PERSONA] of Officials of the [OSCURATO:PERSONA] and, by analogy, the Conditions of Employment of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], have created in relations between the public authority and its staff (see, by analogy, concerning an application for transfer following a vacancy notice, the judgment in Kyrpitsis v ESC , T‑13/95, EU:T:1996:50 , paragraph 52). 20 In any event, having regard to the broad discretion conferred on the institutions in that context, judicial review is limited to ascertaining that there has been no manifest error or misuse of powers (see, as regards the termination of a temporary agent contract for an indefinite term, judgment in ETF v Landgren , T‑404/06 P, EU:T:2009:313 , paragraph 162). 21 It must first be observed in the present case that the EEA relied, in adopting the contested decision, on the fact that the post of ‘legal adviser for the GMES programme’, which the applicant had held up that that point, was going to be abolished after the expiry of her three-year contract, owing to the termination of the GISC project. There is no evidence in the file to show that such a ground is vitiated by an error of fact. Although the applicant submits that a member of the contract staff was recruited from 1 February 2013 in order to take on the tasks that she had previously carried out, the documents in the file, in particular the job-description of that member of staff, show that, on the contrary, that member of staff was employed in order to carry out other tasks, namely those of a ‘project manager for GMES in situ and Arctic cooperation’, replacing another member of the contract staff who had resigned on 16 January 2013. Moreover, the fact that the member of the contract staff recruited on 1 February 2013 carried out part of the tasks for which the applicant had responsibility during the latter’s long period of sick leave is not in itself sufficient to prove that that member of the contract staff was recruited to replace her. 22 Secondly, the applicant claims that, in any event, the duty of care required the EEA to reassign her to the post left vacant by the resignation, on 16 January 2013, of the member of the contract staff referred to in the paragraph above or, at least, to the post of [OSCURATO:PERSONA] or to that of [OSCURATO:PERSONA], declared vacant within the EEA in October 2012 and January 2013 respectively. However, besides the fact that the duty of care cannot be interpreted as entailing the obligation for the administration to verify, before deciding not to renew the fixed-term contract of a member of the contract staff, whether that member of staff can be redeployed to another post (see, by analogy, as regards the non-renewal of a temporary staff contract, the judgment in Commission v Macchia , T‑368/12 P, EU:T:2014:266 , paragraph 59), it is not proven that, taking account of the applicant’s university degree and professional experience, the EEA manifestly failed to have regard to the interest of the service by taking the view that she did not have the profile required in order to be reassigned to one of the abovementioned posts. 23 Thirdly, the applicant maintains that the contested decision forced her to leave Denmark with a child of school age and adds that, not having found alternative employment since the expiry of her contract, she has suffered a significant loss of income. However, those circumstances alone do not prove that the EEA failed to take into consideration the applicant’s interest and, consequently, that it infringed its duty of care, since the EEA could have taken the view, without committing a manifest error of assessment, that the interest of the service, which could not be trumped by that of the applicant, did not warrant the renewal of her fixed-term contract. 24 In those circumstances, the plea alleging a manifest error of assessment and infringement of the duty of care must be rejected as manifestly unfounded. The plea alleging infringement of the principle of equality – Arguments of the parties 25 The applicant claims that the EEA, by refusing to renew her fixed-term contract while offering such a renewal to six other members of the contract staff in [OSCURATO:PERSONA] 1, infringed the principle of equal treatment. 26 The EEA contends that the plea should be rejected. – Findings of the [OSCURATO:PERSONA] 27 It is settled case-law that the principle of equal treatment requires, in particular, that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such different or identical treatment, as the case may be, is objectively justified (see, by way of example, judgment in Balieu-Steinmetz and Noworyta v Parliament , F‑115/07, EU:F:2009:41 , paragraph 26). 28 It is not disputed in the present case that, unlike the applicant, six other members of the contract staff in [OSCURATO:PERSONA] 1 were offered, on the expiry of their fixed-term contract, the renewal of their contract as a member of the contract staff and their reassignment to another post within the EEA. However, it has not been established, taking account of the duties which she previously carried out, the quality of her performance up to that point and the profile of the posts which could be offered to the various members of staff of [OSCURATO:PERSONA] 1, that the applicant was, with regard to a possible renewal of her contract, in a comparable situation to that of the six other members of the contract staff. In that regard, the documents in the file show that, out of the seven members of the contract staff in [OSCURATO:PERSONA] 1 employed in connection with the GISC project, none but the applicant had been recruited to perform tasks of a legal nature. 29 Consequently, the plea alleging infringement of the principle of equal treatment cannot reasonably be relied upon. 30 Lastly, in so far as the applicant seeks to allege an infringement of the principle of protection of legitimate expectations by submitting that, during a meeting held on 23 October 2012, the head of the [OSCURATO:PERSONA] programme, of which [OSCURATO:PERSONA] 1 formed part, stated that the EEA would ‘treat all concerned [[OSCURATO:PERSONA] 1] staff equally with respect to the handling of their contract situation’, such a complaint cannot be upheld, since the statement in question cannot be regarded as a guarantee made to the applicant that her contract would be renewed. 31 It follows from the foregoing that all the pleas raised in support of the claim for annulment of the contested decision are clearly unfounded. Therefore that claim must be rejected as manifestly lacking any foundation in law. The claim for damages 32 The claim for damages, since it is closely connected with the claim for annulment, must, as a result, be rejected as manifestly lacking any foundation in law. 33 It follows from all the foregoing that the action must be dismissed as manifestly inadmissible and manifestly lacking any foundation in law. Costs 34 [OSCURATO:PERSONA] 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to bear his own costs and is ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Pursuant to [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. 35 It follows from the grounds of the present order that the applicant is the unsuccessful party. Furthermore, in its pleadings the EEA has expressly claimed that the applicant should be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of [OSCURATO:PERSONA] 102(1) of the Rules of Procedure, the applicant must bear her own costs and be ordered to pay the costs incurred by the EEA. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed as manifestly inadmissible and manifestly lacking any foundation in law. 2. [OSCURATO:PERSONA] shall bear her own costs and is ordered to pay the costs incurred by the [OSCURATO:PERSONA]. Luxembourg, 10 December 2014. W. [OSCURATO:PERSONA] K. [OSCURATO:PERSONA] ( *1 ) Language of the case: English.