AD v ECHA (Civil service - Fixed-term contracts - Judgment) [2020] EUECJ T-25/19 (11 November 2020)

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(Civil service – Members of the temporary staff – Fixed-term contracts – Decision not to renew – Duty of care – Equal treatment – Manifest error of assessment – Misuse of powers – Right to be heard – Duty to state reasons – Liability)

European Chemicals Agency (ECHA), represented by C.-M. Bergerat and T. Zbihlej, acting as Agents, and by A. Duron, lawyer,

Application under Article 270 TFEU seeking (i) annulment, in substance, first, of ECHA’s decision of 28 March 2018 not to renew the applicant’s fixed-term contract and, second, of the vacancy notice for the establishment of a reserve list for the recruitment of contract staff for function group II published on 9 March 2018 and (ii) compensation for the material and non-material damage allegedly suffered by the applicant as a result of the decision of 28 March 2018 and the vacancy notice of 9 March 2018,

composed of H. Kanninen, President, M. Jaeger (Rapporteur) and O. Porchia, Judges,

having regard to the written part of the procedure and further to the hearing on 16 June 2020,

1 The applicant, AD, an official of [confidential], (1) was seconded in 2008 to the European Chemicals Agency (ECHA) as a member of the temporary staff for a five-year period ending on 30 September 2013, under Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), in the version in force at that time.

2 By decision of 1 October 2013, the applicant’s contract was renewed for a period of five years, that is to say from 1 October 2013 until 30 September 2018.

3 Within the framework of the work instructions adopted by ECHA setting out the six steps for the renewal or non-renewal of all temporary and fixed term employment contracts (‘the work instructions’), the applicant received, on 2 October 2017, an e-mail informing her that she could upload her curriculum vitae to ECHA’s internal electronic platform ‘SharePoint’, on which, inter alia, a document is prepared and uploaded for each staff member whose contract ends in the course of the following year (‘the workflow’).

4 On 7 December 2017, in the workflow, the applicant’s reporting officer recommended deferring any recommendation regarding the renewal or non-renewal of her contract.

5 On 8 December 2017, the applicant was informed orally by her reporting officer that the decision on her contract renewal would not be taken before Christmas. However, the parties disagree as to the information given to the applicant on that occasion.

6 On 12 December 2017, the applicant sent an email to her reporting officer in order to obtain more information on the renewal of her contract. On the same day, the reporting officer replied that no decision on the non-renewal of her contract had been taken and that it had been decided to postpone the recommendation on whether or not to renew her contract until no later than six months before the expiry of her current contract.

7 On 19 December 2017, the applicant asked for a meeting with the executive director of ECHA, that is to say the authority empowered to conclude contracts (‘the AECC’) which concern her, before his retirement, in order to obtain information on her situation. The content of the exchanges at that meeting, which took place on 21 December 2017, differs according to the parties.

9 On 1 February 2018, the applicant started to work on a part-time basis as senior assistant to ECHA’s [confidential].

10 On 9 March 2018, a vacancy notice for the establishment of a reserve list for the recruitment of contract staff for function group II (‘the contested vacancy notice’) was published.

11 On 19 March 2018, an informal interview between the applicant and her reporting officer took place. The parties disagree on the content of that exchange.

12 On 23 March 2018, the applicant took part in a meeting with the new executive director and a representative of ECHA’s human resources unit. Once again, the parties disagree on the content of what was said at that meeting.

13 On 28 March 2018, the AECC adopted the decision not to renew the applicant’s contract (‘the contested decision’). That decision is based on ECHA’s future needs, the applicant’s specific competencies and profile, and her previous varying performance levels.

14 On 12 April 2018, the applicant requested the minutes drawn up following the meeting of 23 March 2018 (‘the minutes of the meeting of 23 March 2018’), which were sent to her on 17 April 2018.

15 On 19 April 2018, the applicant requested clarification of the minutes of the meeting of 23 March 2018, which ECHA provided to her on 24 April 2018.

16 On 7 June 2018, the applicant lodged a complaint against the contested decision and the contested vacancy notice pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to members of the temporary staff under Article 46 of the CEOS.

17 On 23 September 2018, the applicant took part in a meeting with representatives of the human resources unit to seek clarification as to why she had never been offered alternative tasks within ECHA.

18 The applicant’s complaint was rejected by decision of ECHA of 1 October 2018 (‘the rejection of the complaint’). In the rejection of the complaint, ECHA stated that the contested decision was based on two main reasons, namely, first, ECHA’s future needs and the applicant’s specific competencies and profile and, second, her previous varying performance levels.

19 By application lodged at the Registry of the Court on 11 January 2019, the applicant brought the present action.

23 By letter of 16 August 2019, the applicant made a reasoned request pursuant to Article 106(2) of the Rules of Procedure of the General Court to be heard during the oral part of the procedure.

24 On a proposal of the Judge-Rapporteur, the Court allowed the applicant’s request and opened the oral part of the procedure.

25 On 30 March 2020, because of the COVID-19 health crisis, the hearing, originally scheduled for 6 May 2020, was postponed.

26 On 20 April 2020, because of the continuing health crisis linked to COVID-19, which made it impossible to fix the date on which the hearing could take place, the Court asked the parties whether, in spite of that crisis, they wished to be heard at a hearing.

28 On 28 April 2020, the applicant replied that she maintained her request to be heard.

29 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 16 June 2020.

32 According to settled case-law, an administrative complaint, such as that referred to in Article 90(2) of the Staff Regulations, and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the court. Consequently, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (see judgment of 27 October 2016, CW v Parliament, T‑309/15 P, not published, EU:T:2016:632, paragraph 27 and the case-law cited).

33 In the present case, it should be noted that the rejection of the complaint confirms the contested decision. The fact that the AECC was led, in response to the arguments raised by the applicant in the complaint, to clarify the reasoning for the contested decision cannot justify the rejection of the complaint being regarded as an autonomous act adversely affecting the applicant, since the reasoning for that rejection coincides, in substance, with the decision against which that complaint was directed.

34 Therefore, in accordance with the case-law cited in paragraph 32 above, the act adversely affecting the applicant must be considered to be the contested decision, the legality of which must be examined by also taking into consideration the reasoning in the rejection of the complaint.

35 The applicant seeks annulment of the contested decision and of the contested vacancy notice, and compensation for the harm which she allegedly suffered.

36 In support of her application, the applicant raises five pleas in law, alleging, first, infringement of the work instructions and of the principles of equal treatment and non-discrimination, second, breach of the duty to state reasons, third, infringement of the rights of the defence and, in particular, of the right to be heard, fourth, breach of the duty of care and, fifth, the manifestly erroneous nature of the reasons for the contested decision, demonstrating a misuse of powers.

37 It is appropriate, first of all, to examine the first and second pleas in law, next, the fifth plea and, finally, the third and fourth pleas.

– The first plea in law, alleging infringement of the work instructions and of the principles of equal treatment and non-discrimination

38 As a preliminary point, the applicant, referring to the work instructions, observes that, according to settled case-law, a decision of an EU institution or body which is communicated to all staff and which 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 wide discretion conferred by the Staff Regulations, is an internal directive 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.

39 Next, the applicant submits that ECHA failed to comply with steps 2 and 5 of the work instructions. That failure led to an infringement of the principles of equal treatment and non-discrimination.

40 As regards step 2, the applicant observes that, nine months before the expiry of the contract:

‘ … [the] workflow requires a recommendation from the Reporting Officer, the [head of the human resources unit], the Countersigning Officer and the Executive Director’s Decision. In cases where a non-renewal is indicated, or the contract is to be renewed for an indefinite period, a justification needs to be provided by the Reporting Officer.

If no decision to renew the contract in the staff member’s current Directorate is made nine (9) months before the contract end-date, suitable vacancies in the other Directorates will be considered. … For that purpose, the CV and the most recent finalised performance appraisal report of staff concerned will be circulated by HR, on a confidential basis, to Directors of other … Directorates no later than nine (9) months before the contract end-date.’

41 According to the applicant, ECHA erroneously maintains that no justification is required where a recommendation to renew a contract for a fixed period is made or where it is decided to postpone making a recommendation on whether or not to renew a contract. In this respect, the applicant states that step 2 provides that the workflow must contain a recommendation from the reporting officer, the head of the human resources unit and the countersigning officer, as well as the decision of the executive director.

42 Thus, the applicant claims that, whether the recommendations are for renewal, for a fixed or indefinite period, or for non-renewal of the contracts, they must be made nine months before the expiry of contracts, since the work instructions do not allow postponement of the timing for making those recommendations.

43 As regards her particular case, the applicant submits that, first, during the month of October 2017, no recommendation was made for the purpose of the renewal or non-renewal of her contract, second, ECHA itself acknowledges that the recommendation not to renew her contract was adopted on 19 March 2018 and, third, it was only on 12 December 2017 that ECHA informed her that the decision on the renewal or non-renewal of her contract had been postponed.

44 Furthermore, the applicant notes that the information she received from ECHA on 12 December 2017 caused her to be confused since, on 2 October 2017, the human resources unit had invited her to upload the most recent version of her curriculum vitae. According to the applicant, under step 2 of the work instructions, such an invitation is made only where a staff member’s contract will not be renewed in his or her current directorate. Accordingly, the applicant states that she believed that a recommendation not to renew her contract had been made. In this respect, she claims that the confusion caused by the different information resulted in her not actively seeking a new job.

45 Furthermore, the applicant submits that, should the fact that ECHA did not make a recommendation at the latest nine months before the expiry of her contract be equated with a recommendation of non-renewal, the implication would be that ECHA omitted to provide any justification for that non-renewal of the contract and thus infringed step 2 of the work instructions.

46 Finally, the applicant submits that, on 12 December 2017, ECHA merely informed her that the decision on the renewal or non-renewal of her contract had been postponed, without providing any justification, contrary to what ECHA stated in the rejection of the complaint. According to the applicant, that lack of justification constitutes an infringement of step 2 of the work instructions.

47 Thus, the applicant maintains, in substance, that ECHA infringed step 2 of the work instructions, in that, first, the reporting officer did not adopt a recommendation regarding the renewal or non-renewal of her contract nine months before its expiry, second, the recommendation not to renew her contract was only adopted on 19 March 2018 and, third, ECHA’s e-mail received on 2 October 2017, informing her of the possibility of uploading her curriculum vitae, caused her to be confused about her professional situation.

48 As regards step 5 of the work instructions, the applicant observes that, at the latest six months before the expiry date of her contract, ‘the staff member, whose contract will terminate, will be informed through a letter reminding him/her that his/her contract will expire and providing a justification for the non-renewal based on the information provided in the … workflow.’

49 The applicant contests that, on 19 March 2018, that is to say four days before the meeting she had with the executive director and the representative of the human resources unit, she was informed orally by her reporting officer of the content of the recommendation that he was going to include in the workflow. The applicant refutes the claim that her reporting officer explained to her that, first, the [confidential], whose secretariat she had been providing support to since February 2018, would not be replaced when he retired, second, ECHA no longer needed a senior secretary and, third, her performance was varied, of which she had already been informed in December 2017. She also contests the fact that, in the light of those considerations, the reporting officer informed her that his recommendation would be not to renew her contract.

50 In the first place, the applicant notes that there is no evidence to substantiate the content of the comments made at that informal meeting. In the second place, the applicant maintains that the meeting of 19 March 2018 cannot be considered to be a formal meeting during which she had the opportunity to be fully informed of the reasons justifying such a recommendation and, consequently, to present her views about the decision not to renew [her contract].

51 Consequently, the applicant submits that ECHA failed to comply with step 5 of the work instructions and that, by acting in that way, ECHA infringed the principle of equal treatment.

53 As a preliminary point, the Court takes note of the clarification, made at the hearing of 16 June 2020, that it is common ground between the parties that, in December 2017 at the latest, ECHA had informed the applicant that a decision on her contract could not be adopted, since the applicant’s reporting officer had included in the workflow the reasons making it necessary to defer any decision.

54 Next, without there being any need to rule on the question whether, first, her reporting officer had to adopt a recommendation no later than nine months before the expiry of her contract and, second, the information to defer the recommendation should be considered to be an unjustified recommendation not to renew, suffice it to note that the complaint alleging infringement of step 2 of the work instructions cannot succeed.

55 In the first place, it should be noted that step 2 of the work instructions provides that, in the event that no decision to renew the contract in the current directorate of the staff member concerned is taken, the curriculum vitae and the most recent finalised appraisal report of the staff member concerned are made available to the various directors no later than nine months before the expiry of his or her contract. Thus, one of the purposes of step 2 is to inform the other ECHA directorates of the availability of a staff member and to enable that staff member to try to find a job in one of those other directorates if it has not been decided to renew his or her contract in his or her own directorate.

56 In the present case, it is apparent from the file that the applicant’s curriculum vitae and her most recent finalised appraisal report were in fact made available to the various directors in the course of December 2017, that is to say more than nine months before the expiry of her contract. As early as 2 October 2017, the human resources unit contacted the applicant to ask her to upload an updated version of her curriculum vitae to the system. Since the applicant failed to upload an updated version of her curriculum vitae, ECHA made available to the directors the version that was in her personal file. Thus, the applicant was in a position, in accordance with one of the purposes of the work instructions, to find another job in another directorate. Therefore, the fact that the applicant’s reporting officer did not adopt a recommendation mentioning the non-renewal of her contract, but only a recommendation to defer that recommendation, as is apparent from the workflow, did not affect the actual availability of the applicant’s curriculum vitae and her most recent finalised appraisal report and the possibility of her finding employment in another directorate under the same conditions as a staff member whose reporting officer recommended that the contract should not be renewed. Thus, there was no infringement of the principles of equality and non-discrimination in the present case, since the applicant, in respect of whom ECHA was not able to take any decision whatsoever, was given the opportunity to circulate her curriculum vitae and her most recent finalised appraisal report, in accordance with one of the purposes of step 2 of the work instructions.

57 For the same reason, the applicant’s argument that ECHA infringed step 2 of the work instructions by only adopting the recommendation not to renew her contract in March 2018 must also be rejected. As is apparent from the examination set out above, the fact that that recommendation was adopted in March 2018 did not actually affect the applicant’s rights as regards the purpose of step 2 of the work instructions.

58 Furthermore, it should be noted that, while it is true that an EU agency which adopts work instructions cannot in principle depart from them, it is also true that the case-law cited by the applicant in paragraph 38 above, on which the parties also commented at the hearing, recognises that an agency may depart from them if it explains the reasons which led it to do so (judgment of 9 July 1997, Monaco v Parliament, T‑92/96, EU:T:1997:105, paragraph 46).

59 Therefore, even if it were accepted that, under step 2 of the work instructions, the reporting officer of a staff member whose contract is due to expire is required to adopt a recommendation nine months before the expiry of his or her contract, in the present case, the applicant having been informed in the course of December 2017, as is apparent from paragraph 53 above, of ECHA’s decision to defer the recommendation and, accordingly, to depart from the alleged duty to adopt one at the latest nine months before the expiry of her contract, the Court finds that ECHA’s approach is in line with the case-law cited in paragraph 38 above, since it has explained the reasons which led it to depart from the work instructions.

60 In the second place, the applicant’s argument that the e-mail received on 2 October 2017 and the information received in mid-December 2017 caused uncertainty for the applicant must also be rejected. As regards the applicant’s interpretation of the e-mail received on 2 October 2017, suffice it to state that it is based on an erroneous reading of step 2 of the work instructions. The work instructions state, with regard to that step, that all staff whose contract expires the following year receive, starting in the first week of April or October depending on the expiry date of their contract, an e-mail informing them of the possibility to upload their curriculum vitae.

61 In light of those considerations, the argument based on the alleged infringement of step 2 of the work instructions must be rejected.

62 As regards step 5 of the work instructions, the applicant first refers to the phase devoted to the arrangements whereby, following the interview with the executive director, a staff member is informed that his or her contract will not be renewed by a letter reminding him or her of the expiry of the contract and providing a justification for its non-renewal based on the information in the workflow.

63 Next, the applicant, in substance, merely challenges the arrangements for the conduct of the informal meeting which she had with her reporting officer on 19 March 2018, the content of which, moreover, she disputes. However, step 5 of the work instructions provides that, during a meeting with the executive director, the staff member concerned, first, is to be informed of the recommendation not to renew his or her contract and, second, may bring to the attention of the executive director any information he or she considers relevant before the final decision is taken. Thus, it follows that the manner in which the informal meeting of 19 March 2018 between the applicant and her reporting officer was conducted and the content of the comments made at that meeting are irrelevant for the purpose of assessing compliance with that step.

64 That argument must therefore be rejected and the first plea in law must be dismissed in its entirety.

65 The applicant submits that the contested decision, which is drafted in a concise way, is not sufficiently reasoned. ECHA merely explains that the contested decision was taken in the light of its future needs, the applicant’s specific competencies and profile, and her previous varying performance levels. Moreover, the rejection of the complaint makes no mention of the comments made by the applicant at the meeting of 23 March 2018.

66 As regards the contested decision, the applicant notes that, even though she did not expect ECHA to answer all the questions raised at the meeting of 23 March 2018, it had an obligation to explain to her why that decision had been taken despite, first, her excellent background, second, the discussion at her meeting of 21 December 2017 with the former executive director, during which she learned that her post would not be abolished, third, her availability to work overtime if necessary, fourth, her availability to replace a colleague who was often absent and, in general, her extensive availability to replace other colleagues, often at very short notice and also taking on new tasks, fifth, her willingness always to take on new challenges and, sixth, the diversity of the tasks she has performed over ten years in the various functions which she has held at ECHA.

67 The applicant adds that ECHA also had an obligation to explain why no solution could be found for her to be able to continue working there, even though there were posts that ECHA could have offered her at the end of 2017.

68 As regards the rejection of the complaint, the applicant submits, first, that that decision makes no mention of her comments. Second, ECHA merely stated, in paragraph 62 of the rejection of the complaint, that the reasoning for the non-renewal is based on the justification given to the applicant by her reporting officer at the meeting of 19 March 2018, that is to say that her specific competencies and profile were no longer necessary for the future and her performance varied too much. However, since the applicant contests the content of that discussion, she argues that that reasoning cannot be considered a sufficient basis for the rejection of the complaint and, consequently, of the contested decision.

70 In the first place, it should be recalled that, under the second paragraph of Article 25 of the Staff Regulations, applicable to members of the temporary staff pursuant to Article 11 of the CEOS, any decision adversely affecting an official must state the grounds on which it is based.

71 In that regard, it is clear from the case-law that, in a situation in which a contract for a member of the temporary staff may be renewed, a decision by the AECC not to renew that contract, adopted following a procedure specifically designed for that purpose, constitutes an act adversely affecting that person, distinct from the contract in question (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 53 and the case-law cited).

72 In the present case, the contested decision was taken at the end of the procedure laid down by ECHA in the work instructions, during which the AECC must, inter alia, balance the interests of the service against the interests of the staff member. It is therefore a decision adversely affecting an official subject to the duty to state reasons.

73 In the second place, it should be recalled that the duty to state reasons laid down in the second paragraph of Article 25 of the Staff Regulations, which merely reiterates the general obligation laid down by Article 296 TFEU is intended, first, to provide the person concerned with sufficient information to assess the merits of the act adversely affecting him or her and whether it is appropriate to bring an action before the EU judicature and, second, to enable the latter to review the legality of the act (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 60 and the case-law cited).

74 Furthermore, the question whether the statement of reasons is sufficient must be assessed in the light not just of its wording, but also of the factual and legal context in which the contested act was adopted (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 61 and the case-law cited).

75 It is also settled case-law that an EU institution may remedy a possible lack of a statement of reasons by appropriate reasoning provided at the stage of the response to the complaint, as the reasons for that decision are deemed to coincide with the reasons for the decision against which the complaint was made (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 62 and the case-law cited).

76 In the present case, the contested decision states that the applicant’s contract was not renewed in the light of ECHA’s future needs, the applicant’s specific competencies and profile, and her previous varying performance levels. Furthermore, contrary to what the applicant claims, the AECC does not merely reiterate those, in paragraph 62 of the rejection of the complaint, but devotes the subsequent paragraphs of that rejection to explaining why the applicant’s specific competencies and profile were no longer necessary and that there had been certain variations in her performance.

77 Thus, it must be held that the reasons given both in the contested decision and in the rejection of the complaint reveal ECHA’s reasoning and enable, first, the applicant to understand its scope and, second, the EU judicature to exercise its power to review the legality of the decision.

78 As regards, moreover, the fact that the applicant challenges the merits of the answer given by the AECC, it must be borne in mind that the duty to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the act at issue.

79 Thus, as regards the fact that the applicant challenges, in the second plea in law, the merits of certain reasons contained in the contested decision and in the rejection of the complaint, it must be noted that her arguments overlap with those relied on in support of the fifth plea, which it is appropriate to analyse next.

80 Consequently, the second plea in law, in so far as it alleges that the statement of reasons for the contested decision is insufficient, has no factual basis and must be rejected on that ground.

– The fifth plea in law, based on the manifestly erroneous nature of the reasons for the contested decision, demonstrating a misuse of powers

81 The applicant puts forward two complaints, the first relating to the merits of the reasoning for the contested decision and, the second, relating to an alleged misuse of powers.

82 As regards the first complaint, the applicant submits that the reasons contained in the contested decision, namely ECHA’s future needs, her specific competences and profile, and her previous varying performance levels, are manifestly erroneous.

83 As regards ECHA’s future needs, the applicant notes, first, that that reason was contradicted on 24 April 2018 by ECHA itself. The applicant claims that, on 19 April 2018, she sent questions to ECHA, including how, since the first directors’ meeting concerning the ‘reorganisation’ had taken place on 6 March 2018, the second on 13 March 2018, and the third on 10 April 2018, ECHA had been able to decide on 23 March 2018, at its first meeting with the new executive director, that there were no posts to which she could be redeployed taking into account her experience. On 24 April 2018, ECHA replied to the applicant that the non-renewal of her contract was not due to the reorganisation within ECHA, but to her specific competencies and profile, and to her varying performance levels.

84 In that regard, the applicant observes that ECHA wrongly states, in paragraph 70 of the rejection of the complaint, that the answer of 24 April 2018 to the question contained in her e-mail of 19 April 2018 must be analysed in the light of the question which it was supposed to answer. The applicant observes that, in the rejection of the complaint, ECHA argued that the question put by the applicant on 19 April 2018 referred to the directors’ meeting of 6 March 2018, the subject matter of which was ECHA’s reorganisation, and that, accordingly, the contested decision was not linked to the reorganisation discussed during that meeting.

85 The applicant contests that interpretation of the question of 19 April 2018, arguing that it did not relate specifically to ECHA’s reorganisation, but was rather aimed at understanding how a decision that no administrative assistant post corresponded to a profile as broad as hers could already have been taken on 23 March 2018, during her meeting with the new executive director who had just taken up his duties in January 2018, when the first directors’ meeting on ECHA’s reorganisation was held on 6 March 2018 and the second on 13 March 2018. Consequently, according to the applicant, there is a contradiction between the reasoning for the contested decision relating to organisational changes within ECHA and ECHA’s reply of 24 April 2018 which disputes such a reason.

86 In addition, the applicant states that, having regard to her long and broad experience within ECHA, the latter could not decide that there was no suitable job for her in ECHA when it was going through the biggest administrative turmoil that it had ever known since its creation because the prescribed deadline for the registration of chemicals was set for 31 May 2018. Furthermore, the applicant observes that, in paragraph 117 of the rejection of the complaint, ECHA states that ‘ECHA’s staff situation has changed since [her contract was] first renewed 5 years ago. From the start-up phase, ECHA has developed to a mature organisation and must now be prepared for new tasks. … The profile of an AST temporary agent was justified for the function of unit secretary/assistant five years ago, [however,] such a level is no longer justified. The tasks entrusted to this function no longer require the level of responsibility that was necessary during the start-up phase of ECHA’. However, the applicant submits that all other AST secretaries and secretaries to directors still work within ECHA.

87 As regards her competencies and profile, the applicant states that her competencies cannot be described as ‘specific’. Thus, she maintains that, first, she has performed a very wide range of administrative and secretarial tasks, second, she has worked for several directorates at the same time, in particular in comparison to other secretaries to directors and assistants to directors and, third, over time, her post has undergone regular changes and she has constantly been assigned new tasks. Therefore, owing to her willingness to take on the new tasks proposed by management, she was most likely the AST grade official within ECHA whose work is the most cross-unit.

88 As regards the argument alleging her previous varying performance levels, the applicant notes that there is no justification for that statement either in the 2017 appraisal report or in any other earlier appraisal report.

89 In that regard, the applicant states that all of her appraisal reports were marked ‘satisfactory’ and none of them mention ‘varying performance levels’. The applicant adds that ECHA merely refers to alleged recurring comments in some reports according to which her work organisation needed to be improved and her communication of information needed to be more structured and accurate. However, ECHA did not specify which reports contain those comments, nor did it quote them with precision.

90 In addition, the alleged ‘shortcomings’ mentioned in paragraph 76 of the rejection of the complaint, which refers back to Annex 6 attached by ECHA to that rejection, bear no relation with the above mentioned comments which refer to the need for improvement of her organisation and more structured and accurate communication of information. It is apparent from Annex 6 that the applicant merely communicates information, in a rather precise and detailed way, about how she kept emails concerning the dismissal of a colleague and the health problems of another.

91 As regards the claim alleging misuse of powers, the applicant observes that ECHA was building new offices in the Helsinki Bay area, to which it planned to move in January 2020. Thus, since the applicant is not the only person to have had her AST post replaced with a contract agent post, with a salary reduction of approximately 50%, a higher pensionable age and considerably lower monthly pension benefits, she claims that the reasons on the basis of which the contested decision was taken appear to stem from a wish to reduce staff costs. The applicant maintains that that amounts to a misuse of powers, since ECHA actually loses excellent and highly experienced staff who are a real asset, and thus acts against not only the interests of its staff but also of the service.

92 In that regard, the applicant submits that there is a contradiction between paragraph 115 of the rejection of the complaint, in which ECHA stated that her post was not being cut, but was reallocated to its operational functions, and paragraph 117 of that rejection, according to which her AST post had been replaced by a contract agent post. According to the applicant, there is no post reallocation but a post downgrading with a salary reduction of approximately 50%, a higher pensionable age and considerably lower monthly pension benefits in the next seven years approximately.

94 The Court observes that, in view of the wide discretion conferred on the institutions in respect of the renewal of contracts, review by the courts is limited to ascertaining that there has been no manifest error or misuse of powers (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 94 and the case-law cited). Moreover, 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 (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 95 and the case-law cited).

95 As a preliminary point, it should be noted that ECHA explained, in the rejection of the complaint, that two main reasons formed the basis for the contested decision, that is to say, first, its future needs and the applicant’s specific competencies and profile and, second, the applicant’s varying performance levels. As regards the first reason, the authority’s future needs refer to the fact that, first, the post of [confidential] was destined to disappear from ECHA’s administrative organisation as soon as the incumbent director retired and, therefore, the function of senior assistant to that director was no longer needed. Second, that reason also refers to the tasks which the applicant performed as back-up to the assistant to the [confidential], tasks which are no longer performed by a senior assistant. Thus, the applicant’s profile and competencies were no longer adequate. As regards the second reason, namely the varying nature of the applicant’s performance, it refers to the fact that, even though the applicant’s performance met the set requirements in some respects, problems had been highlighted.

96 As regards the argument based on the future needs of ECHA’s organisation, the applicant notes an alleged contradiction between the reasons contained in the e-mail of 24 April 2018, which was sent to her in response to questions she had raised on 19 April 2018, and the reasons contained in the contested decision.

97 In that regard, it should be stated that, as was noted in paragraph 83 above, on 19 April 2018, the applicant asked ECHA how, given that the first directors’ meeting on ‘reorganisation’ had taken place on 6 March 2018, the second on 13 March 2018 and the third on 10 April 2018, it had been able to decide, on 23 March 2018 at its first meeting with the new executive director, that there was no post to which she could be redeployed taking account of her experience.

98 It should also be noted that, as was observed in paragraph 95 above, ECHA explained to the applicant the reasons on which the contested decision was based as regards the future needs of the organisation and her specific competencies and profile. In addition, in paragraphs 70 and 71 of the rejection of the complaint, ECHA explained that the answer of 24 April 2018 to the question of 19 April 2018 must be considered in the light of the wording of that question. Thus, according to ECHA, since the applicant asked whether the contested decision was linked to ECHA’s ongoing reorganisation, by referring to the directors’ meeting of 6 March 2018, the human resources unit rightly answered that that decision was not linked to the reorganisation discussed during that meeting, but to the reduction in the number of directors and the reorganisation of the support given to the secretariats of [confidential], which had already been decided at the time the meeting of 6 March 2018 took place.

99 Contrary to what the applicant maintains, it is apparent from the wording of her question of 19 April 2018 that, although she had highlighted her long and extensive experience within ECHA, she explicitly referred to those three meetings of 6 March, 13 March and 10 April 2018. Thus, taking into account, first, that explicit reference and, second, the fact that ECHA explained that the expression ‘future needs’ referred to the reduction in the number of directors and the reorganisation of the support to the secretariats of the [confidential], which had already been decided at the time the meeting of 6 March 2018 took place, it cannot be alleged that ECHA made a manifest error of assessment in replying on 24 April 2018 that the contested decision was not linked to the reorganisation of ECHA discussed at those meetings but to the applicant’s competencies, profile and varying performance.

100 As regards the argument based on the applicant’s specific competencies and profile, suffice it to note that, in the rejection of the complaint, ECHA explained that it had used the word ‘specific’ to qualify the applicant’s competencies as a senior assistant assisting the functions of directors and potentially acting as back-up to the assistant of the [confidential], and not, as interpreted by the applicant, as the opposite of the word ‘general’. In the end, ECHA did not call into question the fact that the applicant had worked in several directorates carrying out diverse tasks, but explained to her that the word ‘specific’ referred to the tasks which she had carried out as a senior assistant and which ECHA no longer considered necessary. That argument may also be rejected.

101 Finally, as regards the argument based on the applicant’s varying performance, it must be noted that, even if the expression ‘varying performance’ was not used in the assessments of the applicant’s work, that does not mean that the use of that expression in the contested decision is manifestly erroneous. It is apparent from documents before the Court that, although the applicant’s overall performance was considered satisfactory, the content of various appraisal reports, in particular those for the years 2014, 2015 and 2016, regularly referred to the need for the applicant to improve the essential competencies of a senior secretary, namely organisation and discretion. Therefore, it cannot be alleged that ECHA made a manifest error of assessment in considering that the applicant’s performance had been varying and that, consequently, the applicant’s contract was not to be renewed.

102 In the light of those considerations, the claim alleging a manifest error of assessment must be rejected.

103 As regards the argument alleging misuse of powers, according to settled case-law, an act adopted by an AECC benefits from a presumption of legality and a misuse of powers affecting that act will be deemed to exist only if it is proven that, in adopting the disputed act, the AECC pursued an objective other than that covered by the rules in question or if it is apparent, on the basis of objective, relevant and consistent evidence, that the act concerned was adopted for purposes other than those stated (see judgment of 6 February 2019, Karp v Parliament, T‑580/17, not published, EU:T:2019:62, paragraph 79 and the case-law cited).

104 Furthermore, according to settled case-law, the EU institutions have a wide discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks on condition that the staff are assigned in the interest of the service (judgment of 10 October 2014, EMA v BU, T‑444/13 P, EU:T:2014:865, paragraph 28).

105 In the first place, the General Court notes that, in her application, the applicant merely claims that the ‘reasons on the basis of which the Decision has been taken appears to be making savings against the staff’. Thus, the applicant’s claim is a mere assumption that does not satisfy the condition required by the case-law cited in paragraph 103 above, according to which it is for the applicant to adduce objective, relevant and consistent evidence that the contested act was adopted for purposes other than those stated.

106 In the second place, it should be noted that the contested decision, the reasons for which are not vitiated by a manifest error of assessment, is based on the reduction in the number of directors, on the fact that there was no longer any need for a senior assistant, on the applicant’s specific competencies and profile, and on the variations in her performance.

107 In the third place, and in any event, it is sufficient to note that, in the exercise of its wide discretion to organise its departments, in accordance with the case-law cited in paragraph 104 above, ECHA was able to decide that, while reliance on AST temporary agent posts was justified for the normal secretariat at the time ECHA was being set up, such a level for the post was no longer adequate since the tasks entrusted to the function no longer required the same level of responsibility as was needed during its set-up phase. Thus, ECHA’s choice to change the recruitment policy for its administrative assistants is in the interest of the service and cannot be considered a misuse of powers.

108 In that regard, the argument relating to an alleged contradiction between paragraphs 115 and 117 of the rejection of the complaint should also be rejected. Contrary to what the applicant claims, there is no contradiction between paragraph 115 of the rejection of the complaint, in which it is stated that her post is not subject to reduction but to reallocation, and paragraph 117 of the rejection, in which it is explained that the reason for the reallocation is that, while at the time of ECHA’s creation, reliance on AST temporary agent posts was justified for the normal secretariat, such a level is no longer justified since the tasks entrusted to the function no longer require the level of responsibility that was necessary in its start-up phase. Thus, paragraph 117 of the rejection of the complaint does not refer to a reduction but to a reallocation of human resources in the interests of the service, as indicated in paragraph 115 of that rejection.

109 Accordingly, the complaint alleging misuse of powers must be rejected, together with the fifth plea in law as a whole.

– The third plea in law, alleging infringement of the rights of the defence and, in particular, the right to be heard

110 The applicant claims that, on 23 March 2018, that is to say six months before her contract’s expiry date, a meeting was organised at her request between herself, the executive director and the representative of the human resources unit. The applicant maintains that, prior to that meeting and even during it, none of the elements justifying a recommendation not to renew her contract, nor the recommendation itself, which definitely needs to be reasoned, were presented to her.

111 According to the applicant, during the meeting of 23 March 2018, the executive director merely asked a question about a comment in the 2017 appraisal report stating that the objectives had been achieved overall. Furthermore, the applicant observes that she went to that meeting with a two-page presentation of the work she had performed within ECHA but without having prepared any arguments or documentation to enable her to discuss her contract renewal.

112 In that regard, the applicant submits that in order to be able to make her own views known and therefore to exercise properly her right to be heard, she would have needed equivalent knowledge of the elements which ECHA took into consideration to decide not to renew her contract and, more specifically, equivalent knowledge of the justification put forward by the reporting officer in order to make a recommendation not to renew her contract. The applicant submits that none of those elements were ever given to her.

113 The applicant states that no information was given to her, or even discussed, with regard to, first, the latest multi-annual framework documents, second, the medium and long-term human resources needs and, third, the availability of posts. The applicant claims that that information must have been discussed among the reporting officer, the head of unit, the human resources unit, the countersigning officer and the executive director and that it must have formed the basis for the reporting officer’s recommendation.

114 Even though ECHA claims that the information relating to the framework documents had already been communicated to her, the applicant adds that she was never able to verify its accuracy. As regards the medium and long-term human resources needs and the availability of posts, the applicant observes that ECHA makes no mention of the fact that no other information was communicated to her.

115 Furthermore, the applicant submits that ECHA, once again, in the rejection of the complaint, merely refers to information allegedly given to her on 19 March 2018 and 8 December 2017, dates on which the applicant learnt that the recommendation on whether or not to renew her contract was postponed, in order to consider that the applicant had received sufficient information to be able to exercise her right to be heard. In that respect, as regards the information allegedly given to the applicant on 19 March 2018 – which the applicant contests – it was in any case too general to inform her sufficiently of all the reasons and elements on the basis of which the decision was adopted by ECHA. As regards the information given to the applicant on 8 December 2017, the applicant maintains that it is not relevant since she was merely informed of the fact that the recommendation on whether or not to renew her contract was postponed.

116 Consequently, the applicant submits that ECHA infringed her right to be heard and that infringement affects substantially the legality of the contested decision.

117 Furthermore, the applicant adds that, contrary to what ECHA submits in its defence, the minutes of the meeting of 23 March 2018 do not make it possible to establish that she had been informed of the reporting officer’s recommendation or that she had been able to express her views.

118 In that regard, in the first place, the applicant states that the minutes of that meeting essentially record the comments she made relating to her experience and, as regards ECHA, they contain only one paragraph at the end, according to which ‘the Executive Director together with the HR Team Leader – Performance and Career reflected on the solutions mentioned …, nevertheless no clear possibility could be found taking into account the future need of the organisation, [the applicant’s] profile, her function group and the profile required for the AST posts that may potentially be free in the near future.’ Thus, the applicant argues that, having regard to the minutes of the meeting of 23 March 2018, it cannot be claimed that ECHA provided her with all the information on the basis of which the recommendation not to renew her contract was adopted so that the applicant was fully aware of the reasons for that recommendation.

119 In the second place, as regards the information communicated to her concerning the recommendation not to renew her contract, the applicant states that discrepancies exist between the minutes of the meeting of 23 March 2018, the contested decision, the additional information sent on 24 April 2018 concerning the minutes of the meeting of 23 March 2018 and even paragraph 97 of ECHA’s defence.

120 First, the applicant argues that, in the last sentence of the minutes of the meeting of 23 March 2018, cited in paragraph 118 above, nothing is said about her alleged varying performance referred to in the contested decision.

121 Second, in the additional information sent by e-mail on 24 April 2018 concerning the minutes of the meeting of 23 March 2018, it is stated that ‘the justification … of non-renewal is not based on the reorganisation but on “the specific competencies and profile of the jobholder, as well as her previous varying performance levels”.’ Therefore, according to the applicant, it appears that, in that e-mail of 24 April 2018, the justification for the contested decision is not ECHA’s reorganisation and future needs, which is in total contradiction with what is stated in the minutes of the meeting of 23 March 2018 and in the contested decision.

122 Third, in paragraph 97 of ECHA’s defence, it is stated that it would not have been relevant to provide her with the framework documents ‘in so far as such documents do not provide any information specific to [her] case … Indeed, the non-renewal of [her] contract was not based on a reduction of posts but on the fact that her job profile no longer matched the needs of the agency.’ However, with regard to the statement of her reporting officer recounting the interview of 19 March 2018, provided in Annex B.8, the applicant observes that the reporting officer ‘explained the two reasons for [his] recommendation’, namely ‘in relation to the continued need for her profile, it was meanwhile confirmed that she would not continue to be the back-up of the [confidential] secretary, and it was already concluded that there would be one Director less, and thereby a need for one Director’s secretary less.’ Therefore, according to the applicant, contrary to what is stated in paragraph 97 of ECHA’s defence, a post has been abolished.

123 In substance, the applicant considers that the discrepancies between the documents mentioned above show the extent to which the information communicated to her before, during and after the meeting of 23 March 2018, was contradictory, imprecise and lacked any transparency. The applicant observes that those discrepancies reveal that the reasons for the reporting officer’s recommendation, based in particular on alleged under performance, were not used in the reasoning for the contested decision.

125 The Court observes that the right to be heard, which must be safeguarded even where there are no applicable rules, requires that the person concerned must have been afforded the opportunity effectively to make known his or her views on any information against him or her which might have been taken into account in the act to be adopted (see judgment of 6 February 2019, Karp v Parliament, T‑580/17, not published, EU:T:2019:62, paragraph 88 and the case-law cited).

126 Moreover, it follows from the case-law on decisions not to renew a contract of employment that the person concerned must have been able duly to put forward their point of view effectively, which may be a simple announcement by the AECC of its intention and its reasons for not availing itself of the option to renew the contract, as part of a written or verbal exchange, which may even be brief. That exchange must be initiated by the AECC, who has the burden of proof (see judgment of 6 February 2019, Karp v Parliament, T‑580/17, not published, EU:T:2019:62, paragraph 91 and the case-law cited).

127 In substance, the applicant submits that, before the contested decision was adopted, she was not able to take a position, first, on the multi-annual framework documents, on the medium and long-term human resources needs and on the availability of posts – elements which ECHA took into consideration – and, second, on the reasons underlying the contested decision, namely ECHA’s future needs, her competencies, profile and varying performance.

128 As regards the applicant’s assertion that she was not provided with any information relating to the multi-annual framework documents, the medium and long-term human resources needs and the availability of posts, even though, in her view, that information must be discussed among the reporting officer, the head of unit, the human resources unit, the countersigning officer and the executive director before a decision is adopted, suffice it to state that that argument is based on an erroneous interpretation of the work instructions.

129 In this respect, it should be noted that step 2 of the work instructions provides that the directors of ECHA’s different departments and the human resources unit must meet to discuss contracts expiring the following year and adopt decisions taking into account the multi-annual framework documents, the medium and long-term human resources needs and the availability of posts. In addition, that step provides that each workflow concerning each staff member whose contract is due to expire the following year must contain a recommendation from the reporting officer, the head of the human resources unit and the countersigning officer, as well as the decision of the executive director.

130 Contrary to what the applicant claims, the general decisions adopted by the directors of ECHA’s various departments and the human resources unit are not individual measures in relation to which step 2 of the work instructions provides that the workflow must contain a recommendation of the reporting officer, the head of the human resources unit and the countersigning officer, as well as the decision of the executive director. Therefore, the applicant cannot base an alleged infringement of the rights of the defence on the fact that she did not receive documents containing information of a general nature, the assessment of which is a matter for the directors of ECHA’s various departments and the human resources unit in the context of the assessment of the interests of the service, prior to the dialogue provided for in the workflow. It is during that dialogue that the staff member concerned may discuss, in the event of a decision not to renew his or her contract, the individual reasons justifying the AECC’s decision.

131 As regards the applicant’s argument that she was not informed in good time of the reasons contained in the contested decision, it is necessary to examine, first, whether her right to be heard on the non-renewal of her contract was respected.

132 As a preliminary point, it is appropriate to consider the applicant’s arguments challenging the fact that the meeting of 23 March 2018 between the applicant, her AECC and a representative of the human resources unit may be classified as a meeting within the meaning of step 5 of the work instructions. The applicant submits that that meeting was not organised on ECHA’s initiative but following her request to meet with the executive director to discuss her situation.

133 In that regard, it is undisputed that, following the informal meeting of 19 March 2018, the applicant requested a meeting with the executive director to discuss her situation.

134 However, it appears from Annex B.10 that, in parallel with the applicant’s request to meet with the executive director, human resources arranged a meeting, which the applicant agreed to. It is apparent from that annex that the invitation to that meeting stated that its purpose was for the executive director to inform the applicant of the recommendation of her reporting officer and also to enable the applicant to bring any information to his attention before he takes his final decision on the renewal of her contract. It is apparent from that document that the meeting was part of the contracts renewal procedure and was to inform the final decision, which was to be adopted six months before the expiry of the applicant’s contract.

135 Furthermore, it is apparent from the work instructions, of which the applicant was aware, that, during step 5 of the contracts renewal procedure, the meeting with the executive director takes place only if a staff member’s fixed-term contract is not proposed for renewal, in order for the executive director to be able, first, to inform the staff member of the recommendations relating to his or her contract and, second, to hear that staff member with regard to any information he or she would wish to provide before a final decision is adopted. By contrast, in the event of the renewal of a contract, as set out in steps 3, 4 and 6 of the work instructions, no mandatory meeting with the executive director takes place, since the staff member whose contract is renewed receives, first, a letter containing a proposal for renewal and, subsequently, a contract amendment which he or she must sign, a copy of which is placed on his or her personal file.

136 Thus, the invitation reproduced in Annex B.10, and in particular its wording, makes it clear that its purpose was to inform the applicant of her reporting officer’s recommendation and to enable her to submit the information she considered useful prior to the adoption of the final decision. Moreover, taking into account the renewal procedure as provided for by the work instructions, the fact that the applicant was the first to request a meeting with the executive director does not allow the conclusion that the meeting of 23 March 2018 was not a meeting within the meaning of step 5 of those instructions.

137 Next, the Court considers that, taking into account the relevant factual context in which the contested decision was adopted, the applicant cannot maintain that she did not have sufficient information to be able to take a position, during the meeting of 23 March 2018, on the reasons on which the contested decision was based.

138 In the first place, at the hearing, the parties were questioned on the content of the oral exchange of 8 December 2017 between the applicant and her reporting officer. In that regard, first, the applicant accepted that during that exchange, she was informed that a [confidential] would be arriving and would likely reorganise her administrative support. On that point, the applicant added that, in her view, that reorganisation would have a very small impact on her tasks and that, therefore, she could not envisage or have in mind the possibility that her entire contract, in relation to the [confidential], but also the other directors, would be affected. Second, the applicant also accepted that, during the exchange of 8 December 2017, it was mentioned to her that [confidential] was not very satisfied with the management of his move and certain medical issues. The applicant again stated that, despite those indications, she could not envisage that her contract would not be renewed after working for ten years at ECHA. Furthermore, in her pleadings, the applicant submits that the former executive director, at the meeting of 21 December 2017, reassured her that her post would not be abolished.

139 It should be noted that the content of the exchanges of 8 December 2017 shows that, since that day, the applicant was aware of factors likely to have an effect on the fate of her contract. The applicant’s argument, based on her perception of the consequences to be drawn from the information received, cannot call into question the fact that ECHA had informed her of a possible effect on her contract linked, first, to the entry into service of the [confidential] and, second, to her performance. The same applies to the applicant’s argument that the former executive director reassured her that her post would not be abolished. In that regard, without it being necessary to rule on the issue of the evidential value of Annex A.9, which contains an e-mail relating to the confirmation of the meeting of 21 December 2017 to which the applicant has added a handwritten sentence to the effect that, at that meeting, the former executive director had told her that her post would not be abolished, which ECHA contests, suffice it to note that, while the arrival of the [confidential] had not had any effect on the renewal of the applicant’s contract, as she claims, she had received a letter containing a proposal for renewal and, subsequently, a contract amendment, as noted in paragraph 135 above.

140 In the second place, it should be noted that even though, at the hearing, the applicant contested the first sentence of the minutes of the meeting of 23 March 2018, in which it is stated that the executive director clarified the process, his role in the process and the justification provided by her reporting lines, the fact remains that that sentence reproduces, in substance, the content of the invitation set out in Annex B.10. Accordingly, although that sentence is not evidence in itself, it represents at least an indication of the fact that the executive director informed the applicant of her reporting officer’s recommendations, since it is apparent from that invitation that it was one of the objectives of the meeting of 23 March 2018.

141 In the third place, the applicant herself states that, at the meeting of 23 March 2018, the new executive director asked her a question about her 2017 appraisal report, in particular regarding her reporting officer’s comment that she had achieved the objectives as a whole. In that regard, it is also apparent from the minutes of the meeting of 23 March 2018 that the applicant expressed her perspective on the 2017 appraisal report. In that context, the fact that the reporting officer’s comment in the 2017 appraisal report was criticised by the applicant in that report does not affect the fact that, at the meeting of 23 March 2018, the executive director posed a question concerning the variations in the applicant’s professional performance, examined in the context of the fifth plea in law in the present action, and the applicant was able effectively to put forward her point of view. Furthermore, as confirmed by the applicant at the hearing, she did not formally contest her 2017 appraisal report.

142 In the fourth place, it is common ground between the parties that the applicant had taken care to prepare a two-page text describing her work within ECHA and it appears from the minutes of the meeting of 23 March 2018 that she was given the opportunity to present her skills, experience and objectives. Almost all of the content of those minutes is devoted to describing what the applicant has done during her years working at ECHA and her opinion on the possible solutions to continue working at ECHA. As regards the latter point, the applicant was able to make known her interest in working in human resources, the fact that she had obtained a degree in communications, the existence of two available assistant posts and her interest in working in directorates B and D and, in general, her interest in all the new activities of ECHA. Thus, since the applicant cannot claim that she was not aware that the meeting of 23 March 2018 was part of the procedure for renewal of her contract and, in particular, step 5 of that procedure, all the information which she put forward at that meeting can be interpreted as constituting answers to her reporting officer’s recommendation not to renew her contract on account of ECHA’s future needs and her profile.

143 In the fifth place, as regards the informal meeting of 19 March 2018 between the applicant and her reporting officer, the content of which is not agreed between the parties, although the applicant submits that, at that informal meeting, she was not informed that her contract would not be renewed, inter alia because of her varying professional performance, it appears from the file that, since December 2017, the applicant was aware that the arrival of the [confidential] could have consequences for her contract. Thus, she was at least aware of other reasons that led her reporting officer not to keep her in her post, namely, inter alia, the reasons related to the arrival of the [confidential].

144 In the sixth place, moreover, it should be noted that the applicant, as back-up secretary to the assistant to the [confidential] and, as of 1 February 2018, as senior assistant to the [confidential], was in a professional position which could certainly allow her, during the period covered by the procedure for renewal of her contract, to be informed, first, of the changes taking place within ECHA and, second, of the nature of the meeting of 23 March 2018.

145 In the light of all those elements, it must be concluded that, having regard to the circumstances of the case, ECHA has demonstrated to the requisite legal standard that the meeting of 23 March 2018 was a meeting which fell within the scope of step 5 of the work instructions, in the course of which the applicant was able to take a position on the reasons on which the contested decision was based.

146 As regards the infringement of the rights of the defence at the informal meeting of 19 March 2018, that argument must be rejected as ineffective, since it is apparent from the above examination that, at the meeting of 23 March 2018, the applicant’s rights of defence were respected. Furthermore, first, it appears from the examination of the first plea that, under the procedure laid down by ECHA, the right to be heard relates only to the meeting between the staff member, the AECC and the representative of the human resources unit, during which the staff member is informed of the recommendation not to renew his or her contract and is given the opportunity to present his or her point of view, and not to the steps preceding that meeting. Second, according to settled case-law, the mere fact that the opinion of her hierarchical superior was not formally communicated to the applicant before the adoption of the contested decision is not such as to establish that her right to be heard was infringed, since she was able to express her views on the elements taken into consideration by the AECC and, in particular, on the observations contained in that opinion (see, to that effect, judgment of 3 June 2015, BP v FRA, T‑658/13 P, EU:T:2015:356, paragraph 57 and the case-law cited).

148 The applicant submits that ECHA did not take into account her interest either before the adoption of the contested decision, or in the contested decision, or in the rejection of the complaint. She concludes from that that ECHA breached its duty of care.

149 The applicant claims that neither the recommendation not to renew her contract, which was not notified to her before the adoption of the contested decision, nor the rejection of the complaint indicate that all her interests were taken into consideration.

150 According to the applicant, ECHA failed to take into account, first, her background and her excellent reputation within the agency, second, her availability to work overtime if necessary, third, her availability to replace a colleague who was often absent, fourth, her flexible approach to changing tasks regularly, often at very short notice and sometimes with as little as five minutes notice, and, fifth, her very extensive experience of working for several years in several ECHA directorates at a time of great administrative upheaval due to the deadline for the registration of chemicals being fixed at 31 May 2018, with the additional workload which that entailed.

151 Furthermore, the applicant contests ECHA’s interpretation of the duty of care, in paragraph 95 of the rejection of the complaint, according to which that duty merely requires that the reasoning for a decision contain the reasons which justify why the interest of the service prevails over the interest of the staff member whose contract is to be renewed.

152 In that regard, the applicant contests paragraph 97 of the rejection of the complaint, which states that the minutes of the meeting of 23 March 2018 show that her personal situation was taken into account. The applicant submits that those minutes are merely a copy of the handwritten notes which she had prepared for that meeting and do not prove in any way that she spoke with ECHA with a view to achieving a balance between their different interests. Furthermore, the applicant observes that the meeting of 23 March 2018 was organised at her request and was not convened at ECHA’s initiative, and the failure to fulfil that obligation highlights the fact that she had to find out by herself and at her own initiative the information concerning the renewal or non-renewal of her contract.

153 In addition, the applicant claims that ECHA did not consider any possibility of redeployment but merely suggested to her that she submit her application for a contract agent post covered by the contested vacancy notice. In that context, the applicant maintains that, prior to the adoption of the contested decision, she was never invited to a job interview for another post despite the fact that several posts corresponding to her grade were vacant in other ECHA directorates. Thus, the applicant claims that, had she learned earlier that she would not be able to continue working in her unit, she could have applied for those equivalent posts.

154 Furthermore, the applicant observes that, since her management informed her late that her contract would not be renewed within ECHA, she was no longer able to apply for those posts because the deadline for submission had already passed. In that regard, the applicant refers, by way of example, to a post of administrative assistant opened in December 2017 in the Biocidal Products Unit which, in her view, corresponded perfectly to her profile. The applicant states that she mentioned to her superiors that she would have applied for that post, had she known that her contract would not be renewed only a few weeks later. Furthermore, the applicant contests the answer given to that argument in paragraph 111 of the rejection of the complaint, which states that ECHA was not in a position to communicate the information concerning the biocides unit to the applicant at the time the vacancy notice was published because the recommendation not to renew her contract was only taken on 19 March 2018. The applicant submits that that assertion is inaccurate and demonstrates once again the extent to which ECHA failed to take into account her interests. According to the applicant, at the time the vacancy notice was published, ECHA had already made a recommendation not to renew her contract in the directorate in which she worked, although at the same time she was informed that no recommendation had been made in relation to her contract and that that recommendation was postponed.

155 Finally, the applicant submits that, more generally, ECHA provided her with contradictory information which caused her confusion and uncertainty. In that regard, in the first place, the applicant refers to the arguments raised in the first plea in law, namely that she was left in a situation of uncertainty by the e-mail of 2 October 2017 concerning the possibility of uploading her curriculum vitae and by the information received on 12 December 2017 regarding the fact that no recommendation concerning her contract had been made. In the second place, the applicant notes that ECHA replied to her request in the e-mail of 19 April 2018, relating to the lack of information on the renewal of her contract, that if she had not received any information or notification before the meeting of 23 March 2018 and at least nine months before the expiry date of her contract, she should have taken the initiative to contact the human resources unit about that issue.

156 The applicant adds that ECHA also explained to her that, in any case, it ‘had heard’ that she had discussed that issue several times with the human resources unit before the meeting of 23 March 2018. The applicant contests that claim and states that the lack of attention paid to her own interests throughout the renewal procedure is apparent, first, from the fact that ECHA left it to her to take the initiative of finding out for herself the status of her contract before the contested decision was notified to her, without providing her with any prior information, and second, from the fact that ECHA had relied on mere ‘rumours’ that she had been informed that her contract would not be renewed.

158 The Court observes that, although Article 8 of the CEOS makes it possible to renew a temporary staff contract, it is not an entitlement, but merely a possibility left to the discretion of the competent authority. It is settled case-law that the EU institutions have a wide discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks on condition, however, that the staff are assigned in the interest of the service (see judgment of 7 May 2019, WP v EUIPO, T‑407/18, not published, EU:T:2019:290, paragraph 57 and the case-law cited).

159 That discretion must nevertheless be exercised in line with the duty of care. That duty reflects the balance of the reciprocal rights and obligations established by the Staff Regulations and, by analogy, the CEOS in the relationship between a public authority and its civil servants. That duty implies in particular that when the AECC takes a decision concerning the position of a staff member, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the staff member concerned (see judgment of 7 May 2019, WP v EUIPO, T‑407/18, not published, EU:T:2019:290, paragraph 58 and the case-law cited).

160 Applied to a decision on the possible renewal of a contract of a member of the temporary staff, the duty to have regard for the welfare of staff therefore requires the competent authority, when it takes its decision, to balance the interests of the service and the interests of the staff member (see judgment of 7 May 2019, WP v EUIPO, T‑407/18, not published, EU:T:2019:290, paragraph 59 and the case-law cited).

161 The duty of care also involves the obligation of the competent authority to explain, as part of the statement of reasons for the decision not to renew the contract, the reasons why it had allowed the interests of the service to prevail (see judgment of 7 May 2019, WP v EUIPO, T‑407/18, not published, EU:T:2019:290, paragraph 60 and the case-law cited).

162 By contrast, the duty of care cannot go so far as to entail for the competent authority an obligation to examine, before making a decision, the possibility of reassigning the staff member to new tasks and functions before deciding not to renew his or her contract (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 89 and the case-law cited).

163 As a preliminary point, it should be noted that, contrary to what ECHA argues in the rejection of the complaint and reiterates in its defence, the duty of care does not merely require that the reasoning for a decision must contain the reasons which justify that the interests of the service prevail over the interests of the staff member whose contract is to be renewed. The case-law cited in paragraph 160 above provides that the duty of care requires the competent authority, when it takes its decision, to balance the interest of the service and the interest of the staff member.

164 Nevertheless, it is apparent from the rejection of the complaint that the AECC did indeed balance the interest of the service against the interest of the applicant.

165 First, in paragraph 49 of the rejection of the complaint, the AECC refers to the last sentence of the minutes of the meeting of 23 March 2018, in which it is stated that ‘the Executive Director together with the HR Team Leader – Performance and Career reflected on the solutions mentioned …, nevertheless, no clear possibility could be found taking into account the future need of the organisation, [the applicant’s] profile, her function group and the profile required for the AST posts that may potentially be free in the near future.’

166 Second, in paragraph 97 of the rejection of the complaint, the AECC explains that the fact that the applicant’s interest was taken into account is again apparent from the discussion which took place during the meeting of 23 March 2018. The AECC notes that the minutes of that meeting show that the applicant’s personal situation, her career in ECHA, a possible redeployment and her status of official of [confidential] on secondment pursuant to Article 39 of the Staff Regulations were discussed.

167 Those elements are sufficient to conclude that ECHA did not disregard the obligation imposed by the duty of care to balance the interest of the agency and that of the staff member.

168 The applicant’s argument relating to the administration’s obligation to balance interests must therefore be rejected.

169 The applicant’s argument that ECHA did not consider any possibility of redeployment must also be rejected, in accordance with the settled case-law according to which the duty of care cannot go so far as to entail for the competent authority an obligation to examine, prior to making a decision, the possibility of reassigning the staff member to new tasks and functions before deciding not to renew his or her contract (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 89 and the case-law cited). In any event, it should be noted that one of the purposes of making available to the other directorates the curriculum vitae and the most recent finalised appraisal report of a staff member whose contract is about to expire, expressly provided for in step 2 of the work instructions, is part of that duty of care. It is common ground that the applicant’s curriculum vitae and her most recent finalised appraisal report were made available to the other directorates with a view to exploring options for her internal redeployment.

170 As to the other arguments relied on by the applicant in support of that fourth plea in law, they overlap with some of the arguments considered in other pleas and cannot call into question the rejection of that plea.

171 As regards the argument that the contradictory information given by ECHA caused confusion and uncertainty in the mind of the applicant, it has already been examined and rejected in the context of the first plea in law.

172 With respect to the argument that the meeting of 23 March 2018 was not organised at ECHA’s initiative, it appears from the examination developed in the context of the third plea in law, in paragraph 136 above, that while it is true that the applicant requested a meeting with the new executive director, the latter, for his part, also contacted her in order to organise a meeting which came under step 5 of the work instructions.

173 As regards the argument that the applicant was not invited to interviews in other directorates with a view to a possible redeployment, suffice it to note that it is apparent from the examination of the first plea in law that her curriculum vitae and her most recent finalised appraisal report were circulated within the various directorates and that, therefore, she was given the same opportunities as the other staff members.

174 That plea can therefore be rejected in its entirety, as can the claim for annulment of the contested decision.

175 The applicant also requests the annulment of the contested vacancy notice since, in her opinion, it concerns a post the tasks of which are identical to the ones which the applicant was performing under her temporary agent contract. The applicant submits that since that vacancy notice is the result of the abolition of her post within ECHA and, consequently, of the contested decision, the annulment of that decision also entails the annulment of the vacancy notice.

176 Furthermore, the applicant submits that, contrary to what ECHA contends in paragraph 120 of the rejection of the complaint, the contested vacancy notice can be considered to be an act adversely affecting her.

178 The Court finds that, even if it were accepted, as the applicant submits, that the annulment of the contested decision should entail the annulment of the contested vacancy notice because of a direct link between the two, in the present case, since the application for annulment of that decision has been rejected, it would also entail the rejection of the application for annulment of that vacancy notice.

179 Accordingly, the claim for annulment directed against the contested vacancy notice must be dismissed.

180 The applicant claims that all the infringements of her rights, invoked in her application, have caused her non-material and material damage. She had to go to [confidential] to find a job, leaving her two minor children and her husband in Finland to which she had to return regularly. The applicant states that the monthly cost resulting from that new situation amounts to between [confidential] and [confidential]. The applicant states that those sums represent a difference in salary of [confidential], the monthly rent for her accommodation [confidential] and the monthly cost of her return air tickets to Finland, which varies between [confidential] and [confidential].

181 In that regard, the applicant submits that the mere annulment of the contested decision and of the contested vacancy notice do not constitute full and adequate compensation for the non-material and material damage she suffered. Therefore, the applicant seeks compensation for both types of damage.

182 As regards the material damage she allegedly suffered, the applicant estimates, on a provisional basis and without taking into account the financial consequences that her new situation [confidential] will have on her career and on her pension rights, that it amounts to a provisional sum of [confidential], which represents a monthly cost of [confidential] calculated for the seven years remaining until her retirement. As regards the non-material damage, the applicant assesses it at [confidential] ex aequo et bono.

184 Suffice it to note that, according to settled case-law, claims for compensation for material and/or non-material damage must be dismissed where they are closely linked to the claims for annulment, which have themselves been dismissed as unfounded (see judgment of 19 December 2019, ZQ v Commission, T‑647/18, not published, EU:T:2019:884, paragraph 202 and the case-law cited).

185 Since, in the present case, the alleged material and non-material damage suffered by the applicant is closely linked to the claims for annulment which have been dismissed, her claims for compensation must therefore also be dismissed, in accordance with the case-law referred to in paragraph 184 above.

186 In the light of those considerations, the action must be rejected in its entirety.

187 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by ECHA.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> AD v ECHA (Civil service - Fixed-term contracts - Judgment) [2020] EUECJ T-25/19 (11 November 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/T2519.html Cite as: [2020] EUECJ T-25/19, ECLI:EU:T:2020:536, EU:T:2020:536

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