JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
30 September 2013 ( *1 )
‛Civil service — Frontex staff — Temporary staff — Career development report containing negative assessments of the reporting officer not communicated to the person concerned — Non-renewal of a fixed-term contract — Decision based on the opinion of the reporting officer — Rights of defence — Infringement — Dispute of a financial character — Unlimited jurisdiction’
In Case F‑124/11,
ACTION under Article 270 TFEU,
Daniele Possanzini, former member of the temporary staff of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, residing in Pisa (Italy), represented by S. Pappas, lawyer,
applicant,
v
European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), represented by S. Vuorensola and H. Caniard, acting as Agents, and D. Waelbroeck and A. Duron, lawyers,
defendant,
THE CIVIL SERVICE TRIBUNAL
(Second Chamber),
composed of M.I. Rofes i Pujol (Rapporteur), President, I. Boruta and K. Bradley, Judges,
Registrar: X. Lopez Bancalari, Administrator,
having regard to the written procedure and further to the hearing on 8 May 2013,
gives the following
Judgment
1
By application received at the Registry of the Tribunal on 24 November 2011, Mr Possanzini requests, in essence, annulment of the decision of the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), of 28 March 2011, not to renew his contract as a member of the temporary staff.
Legal context
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), 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.
Conditions of employment of other servants
3
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.’
4
Article 39(1) of the CEOS reads as follows:
‘On leaving the service, a servant within the meaning of Article 2 shall be entitled to a retirement pension, transfer of the actuarial equivalent or the payment of the severance grant in accordance with Chapter 3 of Title V of, and Annex VIII to, the Staff Regulations. …’
5
With regard to termination of employment, Article 47 of the CEOS provides:
‘Apart from cessation on death, the employment of temporary staff shall cease:
(a)
at the end of the month in which the servant reaches the age of 65 years …
(b)
where the contract is for a fixed period:
(i)
on the date stated in the contract;
…’.
The Staff Regulations
6
Chapter 3 of Title V of the Staff Regulations, to which the abovementioned Article 39(1) of the CEOS refers, provides in the first paragraph of Article 77:
‘An official who has completed at least 10 years’ service shall be entitled to a retirement pension. He shall, however, be entitled to such pension irrespective of length of service if he is over 63 years, if it has not been possible to reinstate him during a period of non-active status or in the event of retirement in the interests of the service.’
Internal provisions concerning the Frontex staff appraisal procedure
7
Article 2 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:
‘2. The reporting officer shall be responsible for conducting the appraisal, organising an interview (formal annual dialogue) with the jobholder and drafting the appraisal report.
…
The countersigning officer shall be responsible for ensuring the consistent application of the appraisal standards in all the appraisal reports which he/she countersigns.
…’
8
Article 3 of 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 …’
9
Article 11(3) to (6) of the decision of 27 August 2009 provides:
‘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.’
10
Article 12 of the decision of 27 August 2009 states:
‘1.
Upon receipt of the report, the jobholder shall complete the sections reserved for any comments he/she may have.
2.
If the jobholder agrees with the content of the report, he/she shall sign the report and send it back to his/her reporting officer. The reporting officer shall sign it immediately and forward it to the Human Resources Sector to be filed in the personal file of the jobholder.
3.
If the jobholder does not agree with the content of the report, he/she shall inform the reporting officer and the countersigning officer immediately about the reasons for his/her request and stat[e], in the section of the report reserved for comments, his/her wish to discuss the matter with the countersigning officer.
4.
Within 10 … working days, the countersigning officer shall organise a dialogue with the jobholder and reporting officer in order to reach an agreement. …
At the end of the dialogue, the report shall be either amended or confirmed. The countersigning officer shall forward the report once again to the jobholder.
5.
With effect from the 60th … working day after the starting date of the appraisal exercise, if the jobholder refrains either from signing the report, sending it to the reporting officer, or seeking a dialogue with the countersigning officer, he/she shall be deemed to have accepted the content thereof.
6.
If the countersigning officer does not comply with the deadlines at this stage, the jobholder is authorised to consider the failure to reply as a refusal …’
11
The model appraisal report annexed to the decision of 27 August 2009 shows that the overall assessment of the jobholder’s performance, which includes the attainment of fixed objectives, efficiency, abilities and conduct, involves classification on a scale with five levels, from level IV, the weakest, where the jobholder’s performance has not met expectations, to level IA, the highest, where the jobholder’s performance during the course of the appraisal period has consistently exceeded expectations. Classification at performance level III is granted where the jobholder has only partly met expectations, whereas classification at level IB is granted where the jobholder has frequently exceeded expectations.
Contract renewal policy for members of the temporary staff of Frontex
12
Frontex has drawn up a document entitled ‘Contract renewal policy for temporary agents’ (‘the contract renewal rules’). That document, distributed to Frontex staff by Administrative Notice No 40 of 26 July 2010, approved by the Director of the Administration Division (‘Administrative Notice No 40’), observes in its introduction that all ‘temporary agent posts (with the exception of the Executive Director and Deputy Executive Director) are identified as posts of long-term duration’ and that Frontex is willing to use the possibility of renewing contracts to that end.
13
Under point 2 of the contract renewal rules, concerning the contract renewal form and stages of the procedure:
‘a.
The first step before starting any paperwork preparation for contract renewals is to know if the [staff member concerned] is interested in the renewal of his/her contract. To find out, the Human Resources Sector ... will send an e-mail to the staff member to find out about this, 14 months in advance of the final date of the contract.
b.
If the answer received from the staff member is positive (he/she is interested in renewing the contract) [the Human Resources Sector] will prepare the [c]ontract [r]enewal [f]orm ... and will send an electronic copy of it to the Reporting Officer of the staff member for further [action].
c.
The Reporting Officer must fill in Section 4 of the form with all relevant information proposing or not the renewal of the contract for another fixed period ([where] it is the [first] renewal) or for an indefinite period ([where] it is the [second] renewal). Once Section 4 is completed, the Reporting Officer will print out the form, will sign it, and will pass it to the Countersigning Officer for consideration.
d.
The Countersigning Officer will then assess the proposal from the Reporting Officer and [, where he agrees with it,] will countersign Section 4 supporting the proposal. [Where] the Countersigning Officer disagrees with the proposal he/she will explain the reasons in the section for comments and ... will [also] sign Section 4. Once Section 4 is signed by the Countersigning Officer, he/she will send the contract renewal form to the Director of Division for approval and comments stating his/her recommendation.
e.
Once the Director of Division has filled in Section 5, he will send back the form to [the Human Resources Sector] who will then send it to [the] Frontex Executive Director for final decision on the contract renewal of the staff member (Section 6). Once the Executive Director has signed the form, from his office the form will go back to [the Human Resources Sector] for further action.’
14
Point 3 of the contract renewal rules, which sets out the procedure to be followed by the Human Resources Sector once the renewal form has been signed by the Executive Director, provides:
‘Once the form [, signed by the Executive Director,] arrives [back at the Human Resources Sector] ... it will be dealt with according to the outcome of the [Executive Director’s] decision ([three] possibilities):
a.
[r]enewal of contract for another [five] years
b.
[r]enewal of contract for an indefinite period
c.
[n]o renewal of contract
…
c.
No renewal of contract
[Where the] Executive Director’s decision is not to renew the contract, [the Human Resources Sector] 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 in advance of the expiration date of the current contract.’
15
Administrative Notice No 40 informs staff, inter alia, that temporary staff employed by Frontex will be informed of the decision on whether or not to renew their contract approximately 12 months before its expiry date.
Background to the dispute
16
The applicant was recruited by Frontex on 1 August 2006, on the basis of Article 2(a) of the CEOS, as administrator in the AD category at grade 10, step 2, for a period of five years, that is, until 31 July 2011, to occupy the post of Head of the Information and Communication Technologies Sector (‘the ICT Sector’), in the Administrative Services Unit of the Administration Division of Frontex.
17
As Frontex began its activities on 1 May 2005, the appraisal exercise for the period from 1 August 2006 to 31 December 2008, carried out in 2009, was the first staff appraisal exercise. In that appraisal, the applicant’s performance was assessed positively by his line-manager, Mr A, who, as the reporting officer, proposed, on 5 May 2009, to award him the performance level IB. By contrast, the countersigning officer, Mr B, Director of the Administrative Division, made negative comments in the appraisal report and recommended, on 30 October 2009, performance level III.
18
By email of 29 April 2009 sent to all members of staff, the Deputy Executive Director of Frontex stated that there would be no negative consequences for members of staff as a result of the first appraisal exercise for the period 2006/2008.
19
During the appraisal exercise relating to 2009, the applicant’s reporting officer, Mr A, again assessed the applicant positively and proposed, on 20 January 2010, the same level of performance IB, whereas the countersigning officer, Mr B, again made negative comments and recommended performance level III, on 20 June 2010.
20
Following a reorganisation of the administrative division decided on 10 December 2009 by the Director of the Administrative Division, Mr B, the latter became the applicant’s direct line-manager and his reporting officer for the purposes of the appraisal exercise relating to the period starting on 1 January 2010.
21
On 2 August 2010, one year before the expiry of the applicant’s contract, the coordinator of the Human Resources Sector sent the applicant an email to inform him that, under Article 8 of the CEOS, his contract could be renewed once for a fixed duration. At the same time, the coordinator of the Human Resources Sector asked him if he was interested in such a renewal so that, if he was, the procedure for renewal of the contract could be commenced 12 months before its expiry. Lastly, in that email the applicant was asked to reply quickly to that request. By an email of the same day, the applicant replied that he was interested in the offer. Also on 2 August 2010, the applicant received confirmation that the procedure for the renewal of his contract would be initiated immediately.
22
On 24 January 2011, the applicant had an interview with Mr B, his direct line manager and reporting officer, who informed him that he was opposed to the renewal of the contract. The applicant passed on that information, by email of the same day, to the coordinator of the Human Resources Sector. In that email, the applicant asked to be given, as soon as possible, the formal decision of the Executive Director of Frontex concerning the renewal of his contract.
23
By email of 25 January 2011, sent inter alia to the applicant, Mr B confirmed that a discussion had taken place the previous day and that he intended to complete the renewal form and to send it on in order to gather the necessary signatures.
24
On 28 February 2011, Mr B signed the applicant’s contract renewal form and proposed that the contract should not be renewed on the ground that the applicant’s professional performance in 2009 and 2010 had not been satisfactory.
25
On 7 March 2011, the Deputy Executive Director, who, following the reorganisation of the administrative division of December 2009, had become the applicant’s countersigning officer so far as concerns the appraisal of his performance, signed the applicant’s contract renewal form and supported Mr B’s non-renewal proposal.
26
On 28 March 2011, in accordance with the recommendation of the Deputy Executive Director, the Executive Director of Frontex formally adopted the decision not to renew the applicant’s contract. That decision was communicated to the applicant on 13 April 2011.
27
By letter of 16 May 2011, the applicant brought a complaint, in accordance with Article 90(2) of the Staff Regulations, against the decision of 28 March 2011 not to renew his contract. The complaint was supplemented by a letter dated 21 July 2011. The decision of 11 August 2011 of the Executive Director of Frontex, rejecting the supplemented complaint, was notified to the applicant on 16 August 2011 (‘the decision of 11 August 2011’).
28
In the appraisal exercise relating to 2010, the applicant’s reporting officer, Mr B, assessed the applicant negatively and proposed, on 19 July 2011, performance level III. This was confirmed by the Deputy Executive Director in his capacity as countersigning officer, on 21 July 2011.
Forms of order sought and procedure
29
The applicant claims that the Tribunal should:
—
annul the decision of 28 March 2011 of the Executive Director of Frontex not to renew his contract;
—
annul the decision of 11 August 2011;
—
order Frontex to pay the costs.
30
Frontex claims that the Tribunal should:
—
dismiss the action;
—
order the applicant to pay the costs.
31
Frontex was first required, by letter from the Registry of 17 January 2013, to respond to several measures of organisation of procedure. Frontex complied with that request by written submission of 11 February 2013.
32
Subsequently, the parties were requested, by letter from the Registry of 27 February 2013, to respond to supplementary measures of organisation of procedure. The applicant and Frontex complied with that request by written submissions, respectively, of 11 and 12 March 2013.
33
The parties were requested, in the preparatory report for the hearing that was sent to them by letter from the Registry of 27 March 2013, to reply in writing to additional measures of organisation of procedure. The parties complied with that request.
Law
Subject‑matter of the action
34
By his second head of claim, the applicant seeks the annulment of the decision of 11 August 2011.
35
It should be borne in mind that a claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Tribunal the measure against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgment of 17 January 1989 in Case 293/87 Vainker v Parliament, paragraph 8; judgment of 15 September 2011 in Case F‑6/10 Munch v OHIM, paragraph 25).
36
In the present case, the Tribunal notes that the decision of 11 August 2011 does no more than confirm the decision of 28 March 2011 in so far as it neither includes a re-examination of the applicant’s situation in the light of new elements of law or of fact nor amends or supplements the decision of 28 March 2011. Since the claim for annulment of the decision of 11 August 2011, as such, lacks any independent content, it is in reality indissociable from the claim for annulment of the decision of 28 March 2011. In those circumstances, the application must be regarded as being directed against the decision of 28 March 2011 only (‘the contested decision’).
Substance
37
In support of his action, the applicant raises four pleas in law alleging, respectively, (i) breach of the principle of the protection of legitimate expectations, (ii) infringement of essential procedural requirements, (iii) failure to provide an adequate and consistent statement of reasons and (iv) misuse of powers.
38
The second plea, alleging infringement of essential procedural requirements, is divided into two parts, based, first, on the fact that the contract renewal form had not been properly completed and, secondly, on the breach of the duty to notify the contested decision within the period prescribed.
39
The third plea, alleging failure to provide an adequate and consistent statement of reasons, consists of three parts, based (i) on the inappropriate nature of the reasoning of the contested decision, (ii) on the infringement of the rights of defence and (iii) on the inconsistency of the reasoning of the contested decision.
40
The Tribunal will examine first the second part of the second plea, then the first and second parts of the third plea in turn.
The second part of the second plea, alleging breach of the duty to notify the contested decision within the period prescribed
– Arguments of the parties
41
The applicant complains that Frontex did not notify him of the contested decision 12 months in advance of the expiry of his contract. Frontex should have observed that notice period since it is provided for in the contract renewal rules, which constitute an internal directive that Frontex has imposed on itself and which therefore reduces its margin of manoeuvre.
42
Frontex argues that the 12-month period, established in point 3c of the contract renewal rules, is ‘only meant as an indication’ and must be construed as an obligation to use its best efforts vis-à-vis staff members. In any event, any breach of a possible obligation to give notification within the prescribed period would not affect the lawfulness of the contested decision.
– Findings of the Tribunal
43
It is settled case-law that an internal directive is a decision of a European Union institution or body which is communicated to all staff and seeks to ensure that the officials and members of the staff concerned are treated identically, in an area in which that institution or body has a broad discretion conferred by the Staff Regulations, and must, as such, be regarded as an indicative rule of conduct which the administration imposes upon itself and from which it may not depart without stating the reasons which have led it to do so, since otherwise the principle of equal treatment would be infringed (judgment of 9 July 1997 in Case T‑92/96 Monaco v Parliament, paragraph 46; judgment of 30 January 2013 in Case F‑87/11 Wahlström v Frontex, paragraph 56).
44
In the present case, the contract renewal rules, which set out a certain number of rules concerning the renewal of contracts of members of the temporary staff within Frontex, constitute an internal directive for the purposes of the abovementioned case-law (Wahlstrom v Frontex, paragraph 57).
45
Specifically, paragraph 3c of the contract renewal rules provides that, in the event of non-renewal of the contract of a member of the temporary staff, a letter stating reasons, signed by the Executive Director of Frontex, is to be given to the staff member concerned 12 months in advance of the expiry of his contract. It follows from that provision that any decision not to renew the contract of a member of the temporary staff must be notified to the staff member concerned at least 12 months before expiry of the contract. Contrary to what Frontex claims, that paragraph cannot be interpreted, therefore, as containing an obligation to use best efforts or as a mere indication.
46
In the present case, it is established that the contested decision was notified to the applicant on 13 April 2011, that is, three and a half months in advance of the expiry of his contract, on 31 July 2011. Consequently, the applicant is right to maintain that Frontex was in breach of its duty to notify him of the contested decision within the period established in the contract renewal rules.
47
However, it should be borne in mind that, according to the case-law, a procedural irregularity may lead to the annulment of the contested decision only if it is shown that that procedural irregularity could have had an influence on the content of the decision (Wahlstrom v Frontex, paragraph 58). In the present case, the failure to comply with the notification period established in the contract renewal rules is not such as to call into question the lawfulness of the contested decision as that failure to comply could not have had an influence on the content of that decision.
48
It follows that the second part of the second plea, alleging breach of the duty to notify the contested decision within the period prescribed, must be rejected.
The first part of the third plea, alleging the inappropriate nature of the reasoning of the contested decision
– Arguments of the parties
49
The applicant criticises Mr B for having replied in the negative, in Section 4 of the renewal form, to the question whether there would be any exceptional personal or social consequences, for example unemployment close to retirement, when he made his non-renewal proposal. In fact, the applicant and his wife left their employment in Italy so that he could join Frontex in Poland. At the time of bringing the action the applicant was 57, an age at which it would be difficult to find new employment. The preparatory opinion for the non-renewal decision, submitted by Mr B, therefore contained inappropriate reasoning. As the Deputy Executive Director supported Mr B’s non-renewal proposal and the Executive Director followed the recommendation of the Deputy Executive Director, the contested decision did not contain an adequate statement of reasons.
50
Frontex states in reply that a possible return of the applicant to his country of origin and the possibility of non-renewal of his contract as a member of the temporary staff, at the age of 57, were entirely foreseeable and do not constitute exceptional consequences arising from the contested decision.
– Findings of the Tribunal
51
The Tribunal observes that the applicant reached the age of 57 about two months after the contested decision was adopted and that, under the first paragraph of Article 77 of the Staff Regulations, to which Article 39(1) of the CEOS refers, he would have been entitled to a retirement pension at the age of 63 if he had still been employed at that age. It is more difficult to find new employment, in conditions equivalent or similar to those of his employment at Frontex and in keeping with his professional experience, at the age of 57 than at an age that is further from retirement age. Furthermore, it is common ground that the applicant and his wife had left their employment in Italy to take up residence in Poland. Likewise, the renewal of the applicant’s contract for a second period of five years would have allowed him to complete 10 years of service and to acquire, before reaching the age of 63, the right to a retirement pension. In those circumstances, the applicant is justified in complaining about the fact that Mr B replied in the negative to the question as to whether the non-renewal of his contract would have exceptional personal or social consequences.
52
However, whereas it is true that the contract renewal form for members of the temporary staff provides that the reporting officer of the staff member concerned must examine whether the non-renewal of the contract would have exceptional personal or social consequences, such as unemployment close to retirement, the fact remains that the applicant does not cite any provision under which such consequences would oblige the authority authorised to conclude contracts to renew the contract in question.
53
Moreover, even if the preparatory opinion for the contested decision is incorrectly reasoned, that opinion, as a whole, is not manifestly erroneous, as the main criteria to be taken into account are, according to point 3 of the contract renewal rules, the applicant’s performance and the interest of the service.
54
It follows from the foregoing considerations that the first part of the third plea, alleging the inappropriate nature of the reasoning of the contested decision, must be rejected.
The second part of the third plea, alleging infringement of the rights of defence
– Arguments of the parties
55
The applicant claims that the contested decision is unlawful in so far as it is based on inappropriate considerations in the reporting officer’s proposal not to renew his contract, contained in Section 3 of the contract renewal form, relating to the summary of his performance during his employment at Frontex. Mr B included in that section the opinion that he had expressed, as countersigning officer, dissenting from that of the reporting officer on the performance of the applicant in the appraisal report relating to 2009. That appraisal report, he claims, was not drawn up in accordance with the decision of 27 August 2009, since the dissenting opinion had never been notified to the applicant, in breach of Article 11(6) of the decision of 27 August 2009 and his rights of defence. It was only in the context of the non-renewal of his contract that the applicant learned that Mr B had not confirmed the positive opinion of the reporting officer expressed in the appraisal report for 2009. As the abovementioned dissenting opinion had been expressed irregularly in that appraisal report, it should not have been taken into account in the context of the renewal of the applicant’s contract.
56
Frontex contends that the applicant had been aware of the dissenting comments made by Mr B in his appraisal report for 2009. As the applicant had not disputed those comments, Frontex could only conclude that he was satisfied with the result of the appraisal carried out and consider that he had accepted that report as being final.
57
At the hearing, Frontex maintained that Mr B’s decision of 10 December 2009, under which the ICT Sector had been restructured, had been taken because of the bad management of the applicant. That restructuring meant that the applicant no longer supervised 20 members of staff who had, until then, worked under his guidance, and that his duties were reduced to services connected to contracts awarded by Frontex. According to Frontex, the applicant should have realised that that restructuring had been decided by Mr B because he considered that the applicant’s performance did not meet expectations.
– Findings of the Tribunal
58
First, the Tribunal notes that, according to Article 11(4), (5) and (6) of the decision of 27 August 2009, where the countersigning officer does not agree with the opinion expressed by the reporting officer in an appraisal report, he must meet the latter in order to try to reach an agreement. At the end of that meeting, it is for the countersigning officer to countersign the report, amended where appropriate, and to forward it to the jobholder or to the reporting officer so that the latter can forward it in turn to the jobholder. Likewise, Article 12(5) of the decision of 27 August 2009 provides that, with effect from the 60th working day after the starting date of the appraisal exercise, if the jobholder refrains either from signing the report, sending it to the reporting officer or seeking a dialogue with the countersigning officer, he shall be deemed to have accepted the content of that report.
59
Secondly, it should be recalled that Article 26 of the Staff Regulations provides for the creation of a personal file for each official containing all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct, together with any comments by the official on such documents. Documents may not be used or cited by the institution against an official unless they were communicated to him before being placed in his file. According to the case-law, the purpose of those provisions is to guarantee the official’s right to defend himself (judgment of 13 January 2010 in Joined Cases F‑124/05 and F‑96/06 A and G v Commission, paragraph 275).
60
It follows that an institution commits an infringement of Article 26 of the Staff Regulations and of an official’s right to a fair hearing where it adopts a decision adversely affecting him without having previously communicated to him the assessments of his ability which justify the adoption of that decision. In that regard, it must be pointed out that the mere fact that the official concerned knew of these assessments, even if established, cannot be regarded as sufficient evidence that he had had the opportunity effectively to defend his interests prior to the adoption of the decision adversely affecting him. In order for the observance of his right to a fair hearing to be ensured, the institution must still demonstrate, by any means, that it had previously enabled the official concerned to understand that the assessments in question, which were not communicated to him before being placed on his personal file, were such as to justify the decision adversely affecting him. Failing that, the communication required by Article 26 of the Staff Regulations cannot be deemed to have taken place (see, to that effect, judgment of 5 October 2009 in Joined Cases T‑40/07 P and T‑62/07 P de Brito Sequeira Carvalho v Commission and Commission v de Brito Sequeira Carvalho, paragraph 94).
61
In the present case, it is apparent from the contested decision that the authority authorised to conclude contracts decided not to renew the applicant’s contract as a member of the temporary staff because of the insufficient quality of his work during 2009, thus following the opinion to that effect expressed by Mr B, the applicant’s countersigning officer, in the appraisal report relating to 2009, and because of the insufficient quality of the applicant’s work during 2010.
62
Frontex contends that the applicant had been aware that Mr B’s opinion diverged from that expressed by Mr A in the appraisal report for 2009. However, the Tribunal notes that, whereas it is true that that appraisal report was signed by Mr A, as the reporting officer, on 20 January 2010, that the appraisal made by the latter was signed and approved by the applicant on 21 January 2010 and that Mr B completed and signed the report as countersigning officer on 20 June 2010, the fact remains that the report was not signed by the applicant following the comments and signature by the countersigning officer. When questioned on this point in the context of measures of organisation of procedure, Frontex did not provide any document or other evidence from which it is apparent that the appraisal report for the year 2009 had been notified to the applicant after signature by Mr B as countersigning officer, in accordance with Article 11(4), (5) and (6) of the decision of 27 August 2009. Nor was Frontex able to explain how it had established in the applicant’s personal file that, with effect from the 60th working day after the start of the appraisal exercise relating to 2009, the applicant was deemed to have accepted the appraisal report drawn up in the context of that exercise, since he had not disputed it.
63
In response to the measures of organisation of procedure, Frontex did, however, adduce a sworn declaration by Mr B according to which, after he had signed, on 20 June 2010, the applicant’s appraisal report for the year 2009, Mr B gave that report to the applicant in person the following week. Moreover, Mr B states that he met the applicant on two occasions, on 28 May and 17 June 2010, to explain why his opinion diverged from that of Mr A. In support of that sworn statement of Mr B, Frontex submitted an exchange of emails from which it is apparent that the applicant agreed to meet Mr B on the two abovementioned dates. Furthermore, Frontex submitted an exchange of emails of 20 July 2010 between the coordinator of the Human Resources Sector and the applicant which shows that the applicant had been informed that the 2010 appraisal exercise had been finalised.
64
In that regard, the Tribunal notes, first, that the exchange of emails of 20 July 2010 does not show that the applicant was aware of Mr B’s dissent from the positive opinion that Mr A had expressed in the appraisal report for 2009. Furthermore, the emails produced by Frontex concerning the meetings held on 28 May and 17 June 2010 do not make it possible to determine the subjects covered during those meetings. In those circumstances, the Tribunal considers, without doubting the good faith of Frontex and in particular that of Mr B, that neither the sworn statement of the latter, together with the exchange of emails concerning the abovementioned meetings, nor the emails of 20 July 2010 have sufficient probative value within the meaning of the case-law cited in paragraph 60 of the present judgment. Therefore, since Frontex has not demonstrated to the requisite legal standard that Mr B’s dissent from the opinion of the reporting officer, concerning the appraisal of the applicant, was formally notified to the applicant in the context of drawing up the appraisal report relating to 2009, it must be concluded that the contested decision is vitiated by illegality in so far as it is based on that dissenting opinion.
65
It is, of course, very probable that the applicant became aware of that dissenting opinion at the latest during the meeting with Mr B on 24 January 2011, before the adoption of the contested decision. However, given its lateness, in breach of his rights of defence such notification did not allow him to put forward effectively his comments on the criticisms of Mr B, nor to challenge them in administrative or even legal proceedings, nor to take the measures necessary to improve the quality of his work thereafter in order to obtain a better appraisal for the year 2010.
66
Nor can Frontex succeed in its argument, submitted at the hearing, that the applicant should have realised, when the ICT Sector was restructured in December 2009, that Mr B considered that his work did not meet expectations. While it is true that the decision of Mr B of 10 December 2009 concerned a restructuring of the ICT Sector, the fact remains that nothing in that decision led to the conclusion that it was motivated by Mr B’s dissatisfaction with the applicant’s work.
67
It follows from the above that the second part of the third plea is well founded.
68
Consequently, there is no need to examine either the first plea, or the first part of the second plea, or the third part of the third plea, or the fourth plea.
69
In light of the foregoing considerations, the claim for annulment of the contested decision must be upheld.
Damages
70
According to settled case-law, under the second sentence of Article 91(1) of the Staff Regulations, the Tribunal has, in disputes of a financial character, unlimited jurisdiction, pursuant to which it has the power, if need be, of its own motion to order the defendant to pay compensation for the damage caused by the defendant’s wrongful act and, in such a case, taking account of all of the circumstances of the case, to assess the damage suffered ex aequo et bono (judgment of 20 May 2010 in Case C‑583/08 P Gogos v Commission, paragraph 44).
71
According to the case-law of the Court of Justice of the European Union, an action by which an official seeks annulment of a decision affecting his position under the Staff Regulations may give rise to a dispute of a financial character within the meaning of Article 91(1) of the Staff Regulations (Gogos v Commission, paragraph 46).
72
In particular, the Court has held that an action by which an official seeks judicial review by the Courts of the European Union of the legality of his classification gives rise to a dispute of a financial character. The logic behind this is that the decision of the appointing authority on the classification of an official not only has an impact on the career of the person concerned and his personal position within the hierarchy of the authority, but also has direct effects on his pecuniary rights, in particular the level of his remuneration under the Staff Regulations (Gogos v Commission, paragraph 47).
73
Consequently, where, as here, a former member of the temporary staff seeks judicial review by the Courts of the European Union of the legality of the decision not to renew his contract, it must be construed, a fortiori, that his action gives rise to a dispute of a financial character. The decision not to renew the contract has a direct effect on the continuity of the person concerned in his position as a member of the temporary staff within the institution concerned, and therefore on his remuneration and his pecuniary rights.
74
It follows that the action brought by the applicant is of a financial character within the meaning of Article 91(1) of the Staff Regulations. Accordingly, in the present case the Tribunal has unlimited jurisdiction, which entrusts it with the task of providing a complete solution (Gogos v Commission, paragraph 49).
75
That jurisdiction is primarily intended to enable the Courts of the European Union to guarantee the effectiveness of the judgments by which they annul decisions in staff cases, so that if the annulment of a decision of the appointing authority which contains errors of law is not sufficient to assist the official concerned in enforcing his rights or to protect his interests effectively, the Courts of the European Union may award compensation of their own motion (Gogos v Commission, paragraph 50).
76
The Tribunal requested the parties to address, at the hearing, the question whether, in the present case, it has unlimited jurisdiction under the second sentence of Article 91(1) of the Staff Regulations and whether, given that the applicant did not make any claim for compensation, the Tribunal may award him compensation of its own motion.
77
In reply, the applicant submitted that the Tribunal has such unlimited jurisdiction in the present case and that it should award him substantial compensation. In contrast, without denying that the Tribunal has such unlimited jurisdiction, Frontex contended that, in the light of the circumstances of the present case, the Tribunal should not exercise that jurisdiction for three main reasons, as follows: (i) the contested decision did not give rise to non-material damage in so far as the clause establishing 12 months’ notice only contained an obligation to use its best efforts; (ii) the applicant has no right to the renewal of his contract; and (iii) the applicant has found new employment in which he received nearly the same remuneration. In any event, should the Tribunal wish to award compensation, Frontex considers that such compensation should be symbolic.
78
In that regard, it must be recalled that it was held in paragraph 46 of the present judgment that Frontex was in breach of its duty to give 12 months’ notice of the contested decision, as established in the contract renewal rules. Frontex therefore committed an administrative fault capable of giving rise to compensation. Likewise, it is apparent from paragraph 51 that Mr B incorrectly replied in the negative to the question whether the non-renewal of the applicant’s contract would have exceptional personal or social consequences. Furthermore, Frontex’s argument cannot be accepted that, because of his new employment, the contested decision only gave rise to minimum financial loss to the applicant. It is apparent from the file that, in January 2012, the applicant was recruited by another agency of the European Union at grade AD 8 and that a weighting of more than 100 is applied to him, whereas a weighting of less than 100 was applied to the remuneration that he received as a grade AD 10 staff member of Frontex.
79
In accordance with Article 64 of the Staff Regulations and Article 20 of the CEOS, a weighting is applied to the remuneration of officials and members of the temporary staff, determined by reference to living conditions at their place of employment, to ensure that they have equal purchasing power irrespective of that place of employment (judgment of 10 July 1997 in Case T‑81/96 Apostolidis and Others v Commission, paragraph 3). The application of a weighting cannot, therefore, be taken into account for the purposes of comparing the level of remuneration received by those members of staff and officials. It follows that, even if it is established that the net remuneration currently received by the applicant, a grade AD 8 member of staff, is similar to that which he would receive as a grade AD 10 member of staff at Frontex, it must be concluded that as a grade AD 8 member of staff he receives lower remuneration than he received at Frontex.
80
In light of all the foregoing, the Tribunal considers that the annulment of the contested decision does not suffice to effectively protect the interests of the applicant. In the light of the circumstances of the case, the Tribunal, assessing the damage suffered ex aequo et bono, considers that an award of EUR 5 000 constitutes adequate compensation to the applicant.
Costs
81
Under Article 87(1) 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 be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.
82
It follows from the reasoning set out in the present judgment that Frontex is the unsuccessful party. Furthermore, in his pleadings the applicant expressly requested that Frontex be ordered to pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the Rules of Procedure, Frontex must bear its own costs and be ordered to pay the costs incurred by the applicant.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Second Chamber)
hereby:
1.
Annuls the decision of 28 March 2011 not to renew the contract of Mr Possanzini as a member of the temporary staff, adopted by the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union;
2.
Orders the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union to pay Mr Possanzini the sum of EUR 5 000 by way of damages;
3.
Declares that the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union shall bear its own costs and orders it to pay the costs incurred by Mr Possanzini.
Rofes i Pujol
Boruta
Bradley
Delivered in open court in Luxembourg on 30 September 2013.
W. Hakenberg
Registrar
M.I. Rofes i Pujol
President
( *1 ) Language of the case: English.
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