DE v EMA (Judgment) [2016] EUECJ F-58/14 (17 February 2016)

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(Civil service — Temporary staff member — Non-renewal of a fixed-term contract — First paragraph of Article 8 of the CEOS — Material change in the nature of the duties performed by the staff member — Interruption of the career path — Reclassification of a fixed-term contract as a contract of indefinite duration — Excluded)

DE, a former member of the temporary staff of the European Medicines Agency, residing in Buckhurst Hill (United Kingdom), represented by S. Rodrigues and A. Blot, lawyers,

European Medicines Agency (EMA), represented initially by S. Marino, T. Jabłoński and N. Rampal Olmedo, acting as Agents, assisted by D. Waelbroeck and A. Duron, lawyers, and subsequently by S. Marino, T. Jabłoński, F. Cooney and N. Rampal Olmedo, acting as Agents, assisted by D. Waelbroeck and A. Duron, lawyers,

composed of K. Bradley (Rapporteur), President, H. Kreppel and I. Rofes i Pujol, Judges,

having regard to the written procedure and further to the hearing on 10 December 2015,

1 By application received at the Registry of the Civil Service Tribunal on 23 June 2014, DE brought the present action seeking, in essence, the annulment of the decision of the Executive Director of the European Medicines Agency (EMA) (‘the Agency’), in his capacity as the Agency’s authority empowered to conclude contracts of employment (‘the AECE’), of 12 September 2013 not to renew his temporary staff contract, and compensation for the material and non-material damage which he claims to have suffered.

2 The first paragraph of Article 8 of the Conditions of Employment of other servants of the European Union (‘the CEOS’), in the version in force at the time of the events in question, provides:

‘Temporary staff to whom Article 2(a) [of the CEOS] 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.’

3 The applicant entered into the service of the Agency as a Scientific Administrator on 1 January 1999 under a temporary staff contract concluded on the basis of Article 2(a) of the CEOS — in the version then in force — for a renewable term of five years. By virtue of that contract, the applicant was placed in category A, grade 7, step 3.

4 That contract was renewed on 30 June 2003 for a further period of five years with effect from 1 January 2004.

5 Having passed external selection procedure EMEA/A/171 concerning the recruitment of a Principal Scientific Administrator in category A, grade 5, published in the Official Journal of the European Union of 17 May 2003 (OJ 2003 C 117 A, p. 1), on 11 February 2004 the applicant signed an employment contract with the EMA, again as a temporary staff member under Article 2(a) of the CEOS, in category A, grade 5, step 2. That contract entered into force on 16 March 2004 for a renewable term of five years (‘the contract of 16 March 2004’). Article 7 of that contract was worded as follows: ‘This contract shall replace and supersede the existing contract under the [CEOS].’

6 On 1 May 2004, the applicant’s grade was renamed, changing from the former grade A 5, step 2, to the transitional grade A*11, step 2.

7 By letter of 13 March 2007, the EMA informed the applicant that, further to Administrative Notice No 16-2007 concerning the ability to work in a third language before a first promotion after recruitment (as defined in Article 45(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’)), published by the European Commission on 15 February 2007, the previous developments in his career were ‘[considered] as a promotion’ and that, consequently, Article 45(2) of the Staff Regulations was no longer applicable to his situation.

8 On 16 March 2009, the contract of 16 March 2004 was renewed for a period of five years ending on 15 March 2014.

9 On 16 January 2013, the applicant’s performance evaluation report for the period from 15 September 2010 to 15 September 2012 (‘the 2010-2012 performance evaluation report’) was drawn up.

10 On 6 March 2013, the applicant lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against his 2010-2012 performance evaluation report, a complaint which was rejected by decision of the AECE of 2 July 2013.

11 On 4 September 2013, Mr A, the applicant’s former head of unit, who was also his reporting officer until 1 August 2013, sent the Executive Director of the EMA a memorandum with the applicant in copy (‘the memorandum of 4 September 2013’), in which he recommended not renewing the applicant’s contract, stating that, in his opinion, the applicant had not performed his duties at the level which could reasonably be expected of a staff member with his length of service and responsibilities, and that the performance evaluation report for the period from 15 September 2008 to 15 September 2010 (‘the 2008-2010 performance evaluation report’) and the 2010-2012 performance evaluation report showed ‘weaknesses’ in his performance.

12 On 8 September 2013, the applicant sent a memorandum to the Executive Director of the Agency, stating that, in his opinion, his current contract had to be regarded as having been concluded for an indefinite period under the first paragraph of Article 8 of the CEOS, and that his performance did not justify the decision not to renew his contract.

13 By letter of 12 September 2013, the Executive Director of the Agency informed the applicant of his decision not to renew the applicant’s contract (‘the contested decision’), which thus came to an end upon its expiry on 15 March 2014.

14 On 14 October 2013, the applicant brought an action before the Tribunal against his 2010-2012 performance evaluation report, which was registered as Case F‑103/13 and dismissed by judgment of 11 December 2014 in DE v EMA (F‑103/13, EU:F:2014:265). No appeal was brought against that judgment.

15 In the meantime, on 19 November 2013 the applicant lodged a complaint, pursuant to Article 90(2) of the Staff Regulations, against the contested decision. That complaint was rejected by decision of the Executive Director of the Agency, in his capacity as AECE, of 13 March 2014 (‘the decision rejecting the complaint’).

– order the EMA to compensate him for the non-material damage suffered, estimated at EUR 20 000;

– order the EMA to pay the entirety of the costs incurred by him for the purposes of the present action.

18 By letters of 7 and 27 October 2014 respectively, the applicant applied to the Tribunal for leave to lodge a reply and to file further evidence.

19 By letters from the Registry of the Tribunal of 18 November 2014, the parties were informed of the Tribunal’s decision to authorise a second exchange of written pleadings. In addition, the applicant was invited to submit, with his reply, the evidence offered in his letter of 27 October 2014.

20 After the filing of the rejoinder, the applicant applied, by letter of 10 March 2015, for leave to file further evidence. The Tribunal having allowed that application, on 30 March 2015 the applicant filed two documents emanating from the Agency, namely the 2001/2002 programme of work and a ‘standardised operating procedure’, together with a press release relating to the Agency.

21 By letter from the Registry of 11 May 2015, the Tribunal invited the parties to consider the possibility of settling the dispute amicably. The parties not having come to any such agreement, the Tribunal noted that the attempt at an amicable settlement had failed.

22 By letter from the Registry of the Tribunal of 7 October 2015, the parties were requested to submit their comments on the possible implications for the resolution of the present case of the judgment of 16 September 2015 in EMA v Drakeford (T‑231/14 P, EU:T:2015:639) (‘the judgment of the General Court in EMA v Drakeford’). The parties complied with that request within the prescribed period.

23 The applicant seeks the annulment, so far as necessary, of the decision rejecting the complaint.

24 The Tribunal recalls that, according to established case-law, claims for annulment formally brought against a decision to reject a complaint have, where that decision lacks any independent content, the effect of bringing before the Tribunal the act against which the complaint was submitted (judgment of 11 December 2014 in DE v EMA, F‑103/13, EU:F:2014:265, paragraph 29 and the case-law cited).

25 In the present case, the decision rejecting the complaint confirms the contested decision, by providing explanations regarding the reasons used to support that earlier decision. In such circumstances, it is rather the legality of the initial act adversely affecting the official or staff member — in the present case, the contested decision — which must be examined, taking into account the reasons set out in the decision rejecting the complaint, those reasons being expected to be the same as those for that act (judgment of 18 April 2012 in Buxton v Parliament, F‑50/11, EU:F:2012:51, paragraph 21 and the case-law cited).

26 It follows that the claim for annulment brought against the decision rejecting the complaint lacks any independent content and, consequently, must be regarded as being formally directed against the contested decision, as supplemented, as regards the reasons for it, by the decision rejecting the complaint (judgment of 11 December 2014 in DE v EMA, F‑103/13, EU:F:2014:265, paragraph 30 and the case-law cited).

27 In support of his claim for the annulment of the contested decision, in his application the applicant primarily raises a plea alleging infringement of the first paragraph of Article 8 of the CEOS, the principle of sound administration and the duty of care. In the alternative, he raises three other pleas in law, alleging, respectively, manifest errors of assessment, infringement of the right to be reassigned and a misuse of powers, and several breaches of procedure.

28 At the hearing, the applicant withdrew the plea alleging infringement of the right to be reassigned and a misuse of powers, which will therefore not be examined by the Tribunal.

Principal plea in law, alleging infringement of the first paragraph of Article 8 of the CEOS, the principle of sound administration and the duty to take account of the welfare of the staff member

29 The applicant observes that, in order to classify his last contract as one of limited duration, the contested decision relies on the fact that his career with the Agency consisted of ‘two separate and unrelated contractual cycles’ given that he had ‘changed contract on 16 March 2004 to take up a new post of greater responsibility that involved a higher salary and a new probationary period ...’.

30 According to the applicant, the EMA’s approach is not in line with the first paragraph of Article 8 of the CEOS, as interpreted by the judgment of 5 February 2014 in Drakeford v EMA (F‑29/13, EU:F:2014:10) (‘the judgment of the Tribunal in Drakeford v EMA’). In paragraph 48 of that judgment, the Tribunal held that the words ‘[a]ny further renewal’ in the third sentence of that provision had to be interpreted as ‘referring to any process that leads to a temporary staff member under Article 2(a) of the [CEOS], at the end of his engagement for a fixed period, continuing, in that capacity, his employment relationship with his employer, even if such renewal is accompanied by grade progression or a change in the duties performed[; t]he situation could be otherwise only if the new contract were to be covered by a different legal regime or if it were to mark an interruption of the career path, as shown, for instance, by a material change in the nature of the duties performed by the staff member concerned’.

31 In the present case, the applicant claims that: (i) he was continuously employed by the EMA for fifteen years as a temporary staff member under Article 2(a) of the CEOS; (ii) his initial contract was renewed for the first time in 2004; (iii) following his passing an external selection procedure, he signed another contract which entered into force on 16 March 2004; and (iv) that contract was renewed in 2009. From this the applicant concludes that his contract was renewed for the first time in 2004 and for a second time in 2009.

32 In addition, he maintains that, throughout that period, he continuously performed scientific duties corresponding to his professional qualifications as a pharmacist and that he always dealt, in essence, with the same clinical safety and efficacy procedures for medicines, without his duties undergoing any material change.

33 Furthermore, the applicant claims that the supervisory duties connected with his new position from March 2004 were in fact performed only on a very occasional basis.

34 The lack of any interruption of his career path is confirmed, in the applicant’s view, by the letter of 13 March 2007, in which the EMA had informed him that it considered his ‘past career moves as a promotion’.

35 Lastly, the applicant considers that the contested decision also infringes the principle of sound administration and the duty to take account of the welfare of the staff member. However, at the hearing, he stated that this was not a free-standing complaint in relation to the complaint alleging infringement of the first paragraph of Article 8 of the CEOS.

36 In his comments on the judgment of the General Court in EMA v Drakeford, submitted in response to the measures of organisation of procedure adopted by the Tribunal, the applicant asserted that that judgment confirms paragraphs 46 to 48 of the judgment of the Tribunal in Drakeford v EMA on which his arguments are based.

37 In its statement in defence, the EMA contested the interpretation of the first paragraph of Article 8 of the CEOS given in the judgment of the Tribunal in Drakeford v EMA relied on by the applicant, and requested the Tribunal to stay the present proceedings pending a decision closing the proceedings in that case, as the appeal against the judgment in that case was pending before the General Court at the time. At the hearing, the EMA clarified its arguments, stating that — in the light of the judgment of the General Court in EMA v Drakeford — it was not contesting the interpretation of the first paragraph of Article 8 of the CEOS adopted by the Courts of the European Union, but that it did not consider the factual background to the present dispute to be the same as the factual background to the case which had given rise to the judgment of the Tribunal in Drakeford v EMA and the judgment of the General Court in EMA v Drakeford.

38 In that regard, both in its written pleadings and at the hearing, the EMA contended that, when the conclusion of a new contract marks an interruption of the career path of the staff member concerned, there can be no question of ‘further renewal’ as referred to in the first paragraph of Article 8 of the CEOS.

39 According to the EMA, the conditions for applying the exception relating to an interruption of the career path are met in the present case. First, the contract of 16 March 2004 was a new contract for a new position entailing an immediate difference of two salary steps, impossible to achieve as part of a promotion exercise. Second, the external selection procedure EMEA/A/171 concerned a new position involving a considerably higher level of responsibility than that associated with the applicant’s previous position. Third, the nature of the position and the duties assigned to the applicant changed at that time from those of a Scientific Administrator to those of a Principal Scientific Administrator, a qualitative change of duties clearly apparent from the job description signed by the applicant on 23 March 2004.

40 Lastly, in its rejoinder, the EMA contends that the present plea in law should have been regarded as inadmissible by reason of the fact that the applicant did not lodge a complaint against either the contract of 16 March 2004 or the renewal of 16 March 2009.

41 Regarding the objection of inadmissibility raised by the EMA in respect of the present plea in law, it should be borne in mind that, according to settled case-law, the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies rejecting a plea in law on the merits without first ruling on its admissibility (judgment of 13 September 2011 in Nastvogel v Council, F‑4/10, EU:F:2011:134, paragraph 31). In the circumstances of the present case, the Tribunal considers that there is no need to examine the admissibility of the present plea in law, as it must be rejected on the merits in any event for the reasons set out below.

42 The Tribunal recalls that, in order to prevent abuse of fixed-term contracts (judgment of the General Court in EMA v Drakeford, paragraph 23 and the case-law cited), the first paragraph of Article 8 of the CEOS provides that temporary staff to whom Article 2(a) of the CEOS applies ‘may be engaged for a fixed or indefinite period’, that ‘[t]he contracts of such staff who are engaged for a fixed period may be renewed not more than once for a fixed period’ and that ‘[a]ny further renewal shall be for an indefinite period’.

43 According to paragraphs 40 and 41 of the judgment of the General Court in EMA v Drakeford, the words ‘any further renewal’ in the third sentence of the first paragraph of Article 8 of the CEOS must be interpreted as referring to any process that leads to a temporary staff member under Article 2(a) of the CEOS, at the end of his engagement for a fixed period, continuing, in that capacity, his employment relationship with his employer, even if such renewal is accompanied by grade progression or a change in the duties performed. The situation could be otherwise only if the new contract were to mark an interruption of the career path, as shown, for instance, by a material change in the nature of the duties performed by the staff member concerned.

44 It is therefore necessary to ascertain whether, in the present case, the contract of 16 March 2004 forms part of his career progression, as the applicant claims, or marks an interruption of the applicant’s career path accompanied by a material change in the nature of his duties, as asserted by the EMA.

45 It is apparent from the case-file that, since his recruitment by the EMA on 1 January 1999, the applicant has always performed his duties in the field of pharmacovigilance, initially as a Scientific Administrator at grade A 7, and subsequently — from 16 March 2004 — as a Principal Scientific Administrator at grade A 5 (later AD 11).

46 However, it appears from reading the description of the position of Scientific Administrator held by the applicant until the contract of 16 March 2004 came into effect and the description of the position of Principal Scientific Administrator held by him after that contract came into effect that the nature of the applicant’s duties underwent material changes as regards the responsibilities which were assigned to him, his managerial and supervisory duties, and his position within the Agency as indicated by its organisation chart.

47 First, as regards the responsibilities and duties which were assigned to the applicant, as a Scientific Administrator he was required to participate in the tasks of various working groups, whereas, as a Principal Scientific Administrator, one of his specific objectives was to provide ‘high level support’ in several of the EMA’s areas of activity. As the EMA explained at the hearing without being contradicted by the applicant on that point, providing ‘high level support’ involves activity connected with the development of general policies within the EMA. Activity involving such a level of responsibility cannot be regarded as a mere progression in the applicant’s career.

48 Second, as regards his managerial and supervisory duties, it must be pointed out that, prior to 16 March 2004, the applicant’s role was limited to the supervision of assistants. By contrast, from 16 March 2004 onwards, he was supervising Members of the ‘Co-ordination EU Pharmacovigilance’ Section who, as the EMA stated at the hearing without being contradicted by the applicant, were also scientists. In addition, from 16 March 2004 onwards, one of the duties assigned to the applicant was that of replacing the Deputy Head of Sector in certain activities.

49 Third, it is apparent from the organisation charts of the Agency appended by the applicant to his application that the applicant’s position within the Agency changed in a manner which indicates a lack of continuity in his career. According to the organisation chart appended to the description of the position which he occupied in 2002, the applicant was a Member of one of the Specialised Groups in the EMA’s ‘Safety and Efficacy of Medicines’ Sector. By contrast, according to the organisation chart appended to the description of the position which he occupied from 16 March 2004 onwards, the applicant was assigned to the ‘Co-ordination EU Pharmacovigilance’ Section, a section which coordinated the various Specialised Groups in the ‘Pharmacovigilance and Post-Authorisation Safety and Efficacy of Medicines’ Sector.

50 In those circumstances, the applicant’s assertion that, in view of the responsibilities and duties which were assigned to him, his appointment as a Principal Scientific Administrator forms part of the continuation of his existing employment relationship with the EMA has no basis in fact.

51 Accordingly, the plea alleging infringement of Article 8 of the CEOS, the principle of sound administration and the duty to take account of the welfare of the staff member must be rejected.

52 The applicant submits that the contested decision should be annulled in any event, as the AECE makes incorrect inferences from his 2008-2010 and 2010-2012 performance evaluation reports.

53 In essence, according to the applicant, in the contested decision the AECE focused only on certain negative comments appearing in the 2008-2010 and 2010-2012 performance evaluation reports, while failing to take due account of the analytical assessments or the numerous positive comments also included in those reports.

54 In particular, the applicant argues that it is apparent from the two performance evaluation reports in question that he had met all his professional objectives and that he had received ‘excellent’, ‘very good’ or ‘satisfactory’ scores in all areas. According to the Guide to Performance Evaluation Reports drawn up by the Agency on 8 June 2010, a ‘satisfactory’ score means the staff member concerned meets the ‘expected standards’ and, according to the template for the performance evaluation report itself, such a score indicates ‘[the level of competence] which can reasonably be expected from an [EMA] staff member’. The applicant infers from this that, according to those performance evaluation reports, his performance reached the level of competence which could reasonably be expected of him, and even exceeded it in certain areas.

55 Furthermore, according to the applicant, the contested decision is wrong to refer to ‘weaknesses’ in his performance, as his hierarchical superiors did not identify any ‘weakness’, that being a word that does not appear in either of the two performance evaluation reports in question. In that regard, according to the applicant, the comments relating to areas for improvement must be regarded as suggestions indicating areas in which he could improve still further on his performance as reviewed, and not as criticisms.

56 In addition, the applicant observes that, after the drawing up of the 2010-2012 performance evaluation report, there was no further formal assessment of his performance by his hierarchical superiors and that, consequently, the contested decision is based on an assessment of his performance which covers a period that came to an end more than a year prior to the adoption of that decision. In particular, the contested decision errs when it states that the applicant did not accept the judgement of his hierarchical superiors and that he did not alter his behaviour, because it does not take account of the efforts which the applicant had made to take his hierarchical superiors’ comments into account.

57 Lastly, the applicant claims that, in December 2013, his last reporting officer — Mr B — sent him a greetings card congratulating him on the publication of two articles and thanking him for having continued with his ‘core work during times of change’, which shows that Mr B was satisfied with the applicant’s work. In addition, the applicant maintains that, until Mr B became his reporting officer, he had always had extremely positive performance evaluation reports and that he received less positive reviews only from Mr B. The applicant also claims that both Mr B and his other reporting officers were at lower grades than him, contrary to what is stipulated in the Agency’s Guide to Performance Evaluation Reports of 8 June 2010.

58 As a result, the applicant asserts that it was not possible for the AECE to conclude from reading his 2008-2010 and 2010-2012 performance evaluation reports that his performance was not commensurate with the level of responsibility associated with his position. In any event, the applicant maintains that the AECE failed to comply with the duty to provide a statement of reasons because, in the decision rejecting the complaint, it does not respond to any of his allegations that there has been a manifest error of assessment, with the result that it is impossible for him to understand the contested decision.

59 In its statement in defence, the EMA recalls at the outset that the 2010-2012 performance evaluation report was contested in the case giving rise to the judgment of 11 December 2014 in DE v EMA (F‑103/13, EU:F:2014:265) and therefore contends that the arguments of the applicant seeking to contest that report are inadmissible.

60 As regards the merits, the EMA contends, in essence, that, although positive remarks did indeed appear in the applicant’s last two performance evaluation reports, the criticisms made of him justified the contested decision.

61 As regards the objection of inadmissibility arguing that the present plea in law concerns the legality of the 2010-2012 performance evaluation report, which was the subject of the case decided on by the judgment of 11 December 2014 in DE v EMA (F‑103/13, EU:F:2014:265), it must be held that, in reality, by the present plea in law, the applicant does not contest that report in itself, but contests the inferences drawn therefrom by the EMA and complains that the AECE exercised its discretion in a way that was manifestly incorrect by basing the contested decision on certain negative remarks appearing in that report. The objection of inadmissibility raised by the EMA should therefore be dismissed and the present plea in law declared admissible, since the applicant is not contesting the legality of the 2010-2012 performance evaluation report.

62 As regards the merits, it should be noted that, although Article 8 of the CEOS provides for the possibility of renewing a temporary staff member’s contract, this is not a right of the person concerned, but merely a possibility which is left to the discretion of the competent authority. According to settled case-law, the institutions of the European Union enjoy a broad discretion in the organisation of their departments on the basis of the tasks entrusted to them and in assigning the staff available to them having regard to such tasks, on condition, however, that staff are assigned in the interests of the service (judgments of 10 October 2014 in EMA v BU, T‑444/13 P, EU:T:2014:865, paragraph 28, and 10 September 2014 in Tzikas v ERA, F‑120/13, EU:F:2014:197, paragraph 91).

63 According to equally settled case-law, in view of the broad discretion which the institutions have with regard to the renewal of a contract, the Tribunal must, when it has before it an action for annulment directed against an act adopted in the exercise of that discretion, restrict itself to ascertaining whether, regard being had to the factors and reasons which led the administration to its assessment, the administration remained within unimpeachable limits and did not manifestly misuse its power (judgments of 27 November 2008 in Klug v EMEA, F‑35/07, EU:F:2008:150, paragraphs 65 and 66, and 8 October 2015 in FT v ESMA, F‑39/14, EU:F:2015:117, paragraph 73 and the case-law cited).

64 However, an error may be classified as manifest only where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended the administration’s exercise of its discretion to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken as a result, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent (judgment of 8 October 2015 in FT v ESMA, F‑39/14, EU:F:2015:117, paragraph 74 and the case-law cited).

65 In the present case, the Tribunal considers that the applicant has not adduced sufficient evidence to establish that the AECE made a manifest error in deciding not to renew his contract in view of the assessments of his skills and performance as set out in his last two performance evaluation reports.

66 First, as the EMA rightly recalls in its statement in defence, the 2010-2012 performance evaluation report states that the applicant failed to meet one of his objectives, namely, to produce a ‘concept paper and [a] high level outline on pharmacovigilance intelligence ... to be [delivered] to [his hierarchical superiors] by October 2011’.

67 Second, under the heading ‘Areas for improvement’ contained in the chapter ‘General assessment of performance [and] achievement’, the 2010-2012 performance evaluation report states that the applicant needs to improve his performance in several respects in connection with the organisation of his work, compliance with the Agency’s internal procedures, and his relationships with his hierarchical superiors.

68 Third, it is apparent from the wording of the contested decision that the AECE not only took into consideration the applicant’s performance as reviewed in the 2010-2012 performance evaluation report, but also examined his performance after that report was drawn up. Indeed, the contested decision expressly states that, since his last performance evaluation report, the applicant has lost the confidence of his hierarchical superiors.

69 In the light of the negative remarks referred to in the foregoing paragraphs, and in view of the AECE’s broad discretion with regard to the renewal of fixed-term contracts, the Tribunal considers that, even though the applicant’s 2008-2010 and 2010-2012 performance evaluation reports also contain positive comments regarding his performance, and even if account is taken of the positive comments from his hierarchical superiors and colleagues or from the co-authors of the studies which were conducted by him, the applicant has not shown that the AECE manifestly misused its power by considering, after having weighed the positive comments regarding his professional skills against the weaknesses which it had observed in his regard, that his performance did not justify the renewal of his contract.

70 Furthermore, the contested decision clearly states that it is based on the recommendation made by Mr A in the memorandum of 4 September 2013, specific criticisms levelled against the applicant in his last two performance evaluation reports, and the loss of the confidence of his hierarchical superiors. In addition, the contested decision mentions that the AECE took into account the positive comments appearing in the 2010-2012 performance evaluation report but that those positive comments could not outweigh, in the context of the decision to be taken regarding the renewal of his contract, the criticisms which had been levelled against him by his hierarchical superiors. That reasoning was repeated in the decision rejecting the complaint. Accordingly, it must be found that the contested decision was accompanied by a statement of reasons which was sufficient to enable the applicant to assess whether that decision was legal and well-founded.

71 Lastly, as regards the applicant’s observation that his reporting officers were all at lower grades than him, it must be pointed out that, assuming that, by making that observation, the applicant had raised an objection in respect of the contested decision, such an objection would in reality concern the legality of his 2008-2010 and 2010-2012 performance evaluation reports. As those reports have become final, such an objection would be inadmissible in any event.

72 Accordingly, the plea alleging manifest errors of assessment must be rejected as unfounded.

73 The applicant complains that the AECE did not consult the Joint Committee provided for by the decision of the Executive Director of the EMA of 19 June 2012, thereby depriving him of the ‘right to be heard’.

74 The EMA contends that the Joint Committee is an advisory body which may be consulted by the Executive Director regarding any issue of general interest. In the present case, there was no obligation to refer the issue of whether or not to renew the applicant’s contract to the Joint Committee.

75 As regards the right to be heard, the EMA states that, by his memorandum of 4 September 2013, Mr A had made a recommendation to the Executive Director of the Agency that the applicant’s contract not be renewed and, by memorandum of 8 September 2013, the applicant submitted his comments to the Executive Director.

76 It should first of all be observed that Article 3 of the decision of the Executive Director of the EMA of 19 June 2012 regarding the Joint Committee establishes that the Executive Director of the Agency may consult the Joint Committee when he feels it is appropriate. Thus, that decision does not establish any obligation for the AECE to consult the Joint Committee on the subject of the renewal of the contract of an EMA staff member, as in the present case. It follows that the applicant cannot validly complain that the AECE failed to consult the Joint Committee before adopting the contested decision.

77 For the sake of completeness, the Tribunal points out that the complaint based on an alleged infringement of the right to be heard has no basis in fact. In that regard, it is sufficient to note that, by the memorandum of 4 September 2013, Mr A had made a recommendation to the Executive Director of the Agency that the applicant’s contract not be renewed, stating that his performance was not of the standard expected of a staff member with his length of service and responsibilities. By memorandum of 8 September 2013, the applicant submitted his comments to the Executive Director of the Agency regarding the memorandum of 4 September 2013 and the various criticisms which had been made of him by Mr A.

78 It therefore appears that, prior to the adoption of the contested decision, the applicant was able effectively to make known his views on the truth and relevance of the facts and circumstances on the basis of which that decision was adopted (see, to that effect, judgment of 13 November 2014 in De Loecker v EEAS, F‑78/13, EU:F:2014:246, paragraph 33).

79 Accordingly, the plea alleging several breaches of procedure must be rejected and the claim for annulment of the contested decision must be dismissed in its entirety.

80 The applicant submits that he has suffered material damage consisting in the loss of remuneration entailed by the termination of his contract, and that the annulment of the contested decision should lead to his being reinstated at the EMA and being paid the difference between the salary which he would have received if he had remained in his post had his contract not expired and the salary received elsewhere until the date of his reinstatement.

81 In addition, the applicant claims to have suffered non-material damage owing to the fact that the contested decision was based on an alleged lack of productivity and professionalism. According to the applicant, the annulment of that decision cannot in itself constitute sufficient compensation for that damage, which he estimates at EUR 20 000.

82 According to the EMA, the claim for compensation of the material damage should be dismissed, because the applicant was the holder of a fixed-term contract and, consequently, had no right to have his contract renewed. In addition, even if the Tribunal were to conclude that the applicant was the holder of a contract of indefinite duration, the EMA observes that it would still have been able to terminate that contract so long as it complied with the notice period provided for in Article 47(c)(i) of the CEOS.

83 As regards the non-material damage, the EMA contends that the comments appearing in the 2010-2012 performance evaluation report were all objectively justified and that, as a result, the claim for compensation of that damage lacks any basis in law.

84 According to settled case-law, where the damage on which an applicant relies arises from the adoption of a decision which is the subject of a claim for annulment, the dismissal of the claim for annulment entails, as a matter of principle, the dismissal of the claim for damages, as those claims are closely linked (judgment of 23 October 2012 in Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 106).

85 In the present case, it must be held that both the material damage and the non-material damage on which the applicant relies arise from the contested decision and that the claim for the annulment of that decision has been dismissed.

87 It follows from all of the foregoing that the action in its entirety must be dismissed as unfounded.

88 Under Article 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 to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Pursuant to Article 102(1) of those Rules, the Tribunal may decide, if equity so requires, 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.

89 It is apparent from the grounds set out in the present judgment that the applicant has been unsuccessful. In addition, the EMA has expressly requested in its pleadings that the applicant be ordered to pay the costs. As the circumstances of the present case do not justify applying Article 102(1) of the Rules of Procedure, the applicant must be ordered to bear his own costs and to pay the costs incurred by the EMA.

2. Orders DE to bear his own costs and to pay the costs incurred by the European Medicines Agency.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> DE v EMA (Judgment) [2016] EUECJ F-58/14 (17 February 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/F5814.html Cite as: EU:F:2016:16, ECLI:EU:F:2016:16, [2016] EUECJ F-58/14

Court of Justice of the European Communities (including Court of First Instance Decisions)