Judgments nº T-591/16 of Tribunal General de la Unión Europea, December 13, 2018

• Resolution Date: December 13, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-591/16

(Civil service - Members of the temporary staff - Frontex - Non-renewal of a fixed-term contract - Article 8 of the CEOS - Duty of care - Use of an annulled appraisal report - Manifest error of assessment - Liability - Costs - Equity - Article 135(1) of the Rules of Procedure)

In Case T-591/16,

Kari Wahlström, former member of the temporary staff of the European Border and Coast Guard Agency, residing in Espoo (Finland), represented by S. Pappas, lawyer,

applicant,

v

European Border and Coast Guard Agency (Frontex), represented by H. Caniard and S. Drew, acting as Agents, and by B. Wägenbaur, lawyer

defendant,

ACTION under Article 270 TFEU and seeking, first, annulment of the decision of 26 June 2015 not to renew the applicant’s contract as a member of the temporary staff of Frontex and, secondly, compensation for the harm allegedly suffered by the applicant due to the loss of salary consequent thereon and the loss of corresponding pension rights,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni, President, L. Madise (Rapporteur) and R. da Silva Passos, Judges,

Registrar: E. Coulon,

gives the following

Judgment

Legal framework

1 Following the adoption of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ 2016 L 251, p. 1), the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), with which the applicant had been employed on a temporary contract for a duration of five years, has become the European Border and Coast Guard Agency (Frontex).

2 Under Article 17 of Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349, p. 1) (now Article 58 of Regulation 2016/1624), the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) are to apply to Frontex’s staff.

3 Article 2 of the CEOS provides:

‘For the purposes of these Conditions of Employment, “temporary staff” means:

(a) staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;

...’

4 As regards the duration of the contract, the first paragraph of Article 8 of the CEOS provides:

‘Temporary staff to whom Article 2(a) applies may be engaged for a fixed or indefinite period. The contracts of such staff who are engaged for a fixed period may be renewed not more than once for a fixed period. Any further renewal shall be for an indefinite period.’

5 With regard to the probationary period that the member of the temporary staff is required to serve, Article 14(3) of the CEOS provides that ‘one month at the latest before the expiry of the probationary period, a report shall be made on the ability of the staff member to perform the duties pertaining to his post and also on his efficiency and conduct in the service’ and that ‘this report shall be communicated to the member of the temporary staff, who may submit written comments within eight working days’.

6 In accordance with Article 15 of the CEOS, Article 43 of the Staff Regulations, concerning reports, shall apply by analogy.

7 Article 43 of the Staff Regulations provides:

‘The ability, efficiency and conduct in the service of each official shall be the subject of an annual report as provided for by the appointing authority of each institution in accordance with Article 110. That report shall state whether or not the performance level of the official has been satisfactory. The appointing authority of each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before the lodging of a complaint as referred to in Article 90(2).

...

The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant.’

8 As regards the termination of the contract, Article 47 of the CEOS provides:

‘Apart from cessation on death, the employment of temporary staff shall cease:

...

(b) where the contract is for a fixed period:

(i) on the date stated in the contract;

(ii) at the end of the period of notice specified in the contract giving the servant or the institution the option to terminate earlier ...’

9 As regards the internal provisions concerning the staff appraisal procedure of Frontex, Article 3 of the decision of the Executive Director of Frontex of 27 August 2009 establishing a Staff Appraisal Procedure (‘the decision of 27 August 2009’), provides:

‘1. By default the reporting officer shall be the jobholder’s direct line manager at the launch of the exercise. The Director of the division shall act as the reporting officer for the heads of the units, the Deputy Executive Director shall act as reporting officer for Directors of Divisions.

2. By default the countersigning officer is the direct hierarchical superior of the reporting officer at the launch of the exercise.

   If the Executive Director is the reporting officer of the jobholder, he/she shall in addition carry out also the role of countersigning officer.

   In their role, countersigning officers shall guarantee the consistent application of the appraisal standards ...’

   10 Article 11(3) to (6) of the decision of 27 August 2009 provides as follows:

   ‘3. If the countersigning officer agrees with the report he/she shall countersign the [appraisal] report and sen[d] it to the reporting officer, who shall forward it to the jobholder.

4. If he/she does not agree with the report, the countersigning officer shall summon the reporting officer and, if necessary, the jobholder for a consultation meeting to try and reach an agreement.

5. Once an agreement is reached, the countersigning officer shall countersign the report, amended in accordance with the outcome of the meeting, and sen[d] it to the reporting officer, who shall forward it in turn to the jobholder.

6. If the consultation meeting fails to result in an agreement, the final decision shall rest with the countersigning officer, who shall forward it to the reporting officer and jobholder.’

   11 The contract renewal procedure for temporary staff within Frontex is organised by means of guidelines, which were communicated on 26 July 2010 to Frontex’s staff by Administrative Notice No 40 (‘the Guidelines’), the objective of which is, inter alia, to ensure that the process is consistent, transparent and fair. It is apparent from point 2 of the Guidelines that the renewal procedure consists of four stages:

   - after the member of staff concerned has shown his interest in the renewal of his contract (points 2(a) and 2(b)), the reporting officer writes his comments and his proposal regarding renewal on an ad hoc form (point 2(c));

   - the countersigning officer assesses the proposal from the reporting officer and expresses his agreement or his disagreement and the reasons for it on the same form; if the reporting officer and the countersigning officer disagree, the latter must state the reasons for his disagreement in writing (point 2(d));

   - the Director of the Division expresses a recommendation on the form (point 2(d));

   - the Executive Director takes the final decision (point 2(e)).

   12 Point 3(a) of the Guidelines provides:

   ‘When [the] Executive Director decides to renew the contract for [five] years, [the Human Resources Department] will prepare a letter offering the staff member a renewal of the contract for this period. …

   After receiving [a] positive answer from the staff member, [the Human Resources department] will prepare a reviewed contract which will be ready two months before the expiry of the current contract waiting for the staff member acceptance and signature …’

   13 Point 3(c) of the Guidelines states:

   ‘[Where the] Executive Director’s decision is not to renew the contract, [the Human Resources Department] will prepare a letter reflecting the arguments given by the Reporting Officer (business reasons, performance-related reasons, or both). The letter will be signed by the Executive Director and given to the staff member 12 months before the expiration date of the current contract.’

   Background to the dispute

   14 On 1 August 2006, the applicant, Mr Kari Wahlström, was recruited by Frontex as a temporary agent within the meaning of Article 2(a) of the CEOS, for a renewable period of five years. He was initially appointed Head of Unit of Administrative Services of Frontex and classified at grade A 12, step 2. In 2007, the reclassification of the applicant as grade A 13 was considered but did not take place.

   15 In early 2008, an additional level of supervision, consisting of divisions, headed by directors of divisions, was created between the units and the Executive Director. In spring 2008, a selection procedure for the middle management posts of directors of divisions was launched. The applicant, encouraged by the Executive Director to take part in that procedure, applied for the post of Director of the Administrative Division. That application was unsuccessful, as Mr C. was selected to occupy that post.

   16 Following an internal selection procedure, and in accordance with an addendum to his contract, signed on 22 June 2010, the applicant was appointed Head of Frontex’s Operational Office (‘the FOO’) in Piraeus (Greece) with effect from 1 August 2010. His duties as Head of Unit of Administrative Services had in the meantime been transferred, as of June 2010, to the...