F-34/14: Agency's internal decisions of general scope versus Staff Regulations; justifications submitted for the first time during the proceedings cannot be taken into account.

“Findings of the Tribunal

49      The applicant has raised a plea of illegality of Article 6(2) of the GIP in the light of Article 85(1) of the CEOS in support of the claim for annulment of the non-renewal decision.

50      As provided for in Article 85(1) of the CEOS, ‘[t]he contracts of contract staff referred to in Article 3a [of the CEOS] may be concluded for a fixed period of at least three months and not more than five years. They may be renewed not more than once for a fixed period of not more than five years. The initial contract and the first renewal must be of a total duration of not less than six months for function group I and not less than nine months for the other function groups. Any further renewal shall be for an indefinite period. …’

51      As ACER has correctly submitted, although Article 85(1) of the CEOS provides for the possibility of a second renewal, this is neither a right conferred on the member of staff concerned nor a guarantee of any continuity of employment, but a possibility subject to the AECE’s discretion. According to the case-law, the institutions enjoy a wide discretion to organise their departments to suit the responsibilities entrusted to them and to assign their staff having regard to those responsibilities, provided, however, that that assignment is in the interests of the service (see, to that effect, judgments in CommissionvPetrilli, EU:T:2010:531, paragraph 34 and the case-law cited therein, and Commissionv Macchia, EU:T:2014:266, paragraphs 49 and 60).

52      Nevertheless, Article 6(2) of the GIP makes the possibility of granting a second renewal of the contract for an indefinite period subject to the prerequisite that the combined duration of the initial contract and its first renewal must be at least five years. Where that prerequisite is not satisfied, any possibility of renewal, on request or even at the institution’s own motion, is mandatorily excluded.

53      Where an institution or an agency is authorised to lay down general implementing provisions intended to supplement or implement hierarchically superior and binding provisions of the Staff Regulations or the CEOS, the competent authority may neither act contra legem, in particular by adopting provisions whose application would be contrary to the aims of the provisions of the Staff Regulations or would render them entirely ineffective,nor fail to comply with general legal principles such as the principle of sound administration, the principle of equal treatment and the principle of the protection of legitimate expectations (see, to that effect, judgment in Commissionv Petrilli, EU:T:2010:531, paragraph 35 and the case-law cited therein).

54      According to the case-law, the general implementing rules adopted under the first paragraph of Article 110 of the Staff Regulations may lay down criteria capable of guiding the administration in the exercise of its discretionary power or of explaining more fully the scope of provisions of the Staff Regulations which are not wholly clear. However, they cannot lawfully, by way of explaining more fully a clear term of the Staff Regulations, reduce the scope of those regulations or of the CEOS or lay down rules which derogate from hierarchically superior provisions, such as the provisions of the Staff Regulations or the CEOS or general principles of law(judgments in Bremsv Council, T‑75/89, EU:T:1990:88, paragraph 29 and the case-law cited therein, and Ianniellov Commission, T‑308/04, EU:T:2007:347, paragraph 38 and the case-law cited therein).

55      Thus, in the judgment in Bremsv Council(EU:T:1990:88, paragraph 30), the Court of First Instance of the European Communities declared unlawful Articles 3 and 7 of the Decision of the Council of 15 March 1976 adopting general implementing provisions for Article 2(4) of Annex VII to the Staff Regulations, on the ground that, by seeking to explain more fully the term ‘any person’ in Article 2(4) of Annex VII to the Staff Regulations, Articles 3 and 7 of the Decision had imposed minimum and maximum age-limits applicable to persons treated as if they were a dependent child and had thereby automatically excluded from the scope of Article 2(4) of Annex VII to the Staff Regulations all persons between those age-limits, thus depriving the appointing authority of the possibility of using its discretion in each particular case.

56      In the light of the foregoing considerations, it must be held that Article 6(2) of the GIP restricts the scope of Article 85(1) of the CEOS in so far as it introduces a supplementary condition for the renewal of a contract as a member of the contract staff within the meaning of Article 3a of the CEOS which is not provided for in the CEOS and which hinders the exercise of the discretion conferred on the administration, without such a restriction being objectively justifiable in the interests of the service.An internal decision of ACER which is general in scope, such as the GIP, cannot lawfully restrict the scope of an explicit rule laid down in the Staff Regulations or the CEOS, unless it has been stipulated that this is expressly authorised (see, to that effect, judgment in Commissionv Petrilli, EU:T:2010:531, paragraphs 31 and 36 and the case-law cited therein).

57      Moreover, the arguments put forward by ACER concerning the objectives pursued in the adoption of the GIP cannot be upheld.

58      First, neither the need to harmonise the practice of agencies and of the Commission in concluding contracts of employment with and employing members of the contract staff, nor the need to ensure ‘symmetry’ of treatment between members of the temporary staff and members of the contract staff as regards the duration of service required to be eligible for an indefinite contract, assuming those needs are demonstrated, are such as to warrant a breach of the principle of the hierarchy of norms.

59      Secondly, nor is the fact that the provisions of Article 6(2) of the GIP are identical to those of Article 6 of Commission Decision C(2004) 1313 of 7 April 2004 setting out general implementing provisions on the procedures governing the engagement and the use of contract staff at the Commission such as to warrant the AECE automatically waiving its discretion in connection with the renewal of a contract of a member of the temporary staff. Furthermore, it must be observed that Article 6 of Commission Decision C(2011) 1264 of 2 March 2011 on the general provisions for implementing Article 79(2) of the CEOS, governing the conditions of employment of contract staff employed by the Commission under the terms of Articles 3a and 3b of the CEOS, and which was adopted prior to the GIP, no longer makes a second renewal of the contract dependent on a minimum duration of the initial contract and its first renewal.

60      Lastly, in the defence, ACER also submits that ‘the Agency internally considered the possibility [of resorting] to a form of exceptional treatment’ but that, in the circumstances, ‘[the applicant’s] appraisals for the years 2011 and 2012 did not provide enough evidence of exceptional performance justifying a deviation from the applicable rules’.

61      Such an argument cannot be relied on profitably against the plea of illegality raised, inasmuch as Article 6(2) of the GIP does not provide for any exception to the condition requiring the cumulative duration of the initial contract and the first renewal to reach five years.

62      In any event, it is apparent from the documents in the file and, in particular, from the non-renewal decision that ACER refused to renew the applicant’s contract exclusively on the ground that, in her case, the condition laid down in Article 6(2) of the GIP requiring the person concerned to have been granted an initial contract and a first renewal with a cumulative duration of at least five years was not satisfied.

63      It is settled case-law that, although in the scheme of legal remedies provided for in Articles 90 and 91 of the Staff Regulations the administration may decide, when it expressly rejects a complaint, to vary the grounds on which it had adopted the contested measure, such variation may not take place after the proceedings against the contested measure have been brought before the Tribunal. Moreover, the administration is not entitled to substitute an entirely new statement of reasons for the initial, erroneous, statement in the course of the proceedings (judgment in Allenv Commission, F‑23/10, EU:F:2011:162, paragraph 98).

64      The justification of the non-renewal decision on the grounds of the applicant’s performance, submitted for the first time during the proceedings, cannot therefore be taken into consideration by the Tribunal in its review of the lawfulness of the non-renewal decision.

65      For the sake of completeness, it must be observed that that justification is clearly inconsistent with the documents in the file, from which it is apparent that, on several occasions, the Agency expressed its wish to maintain the employment relationship with the applicant.

66      Taking account of all the foregoing and in the light, in particular, of the case-law cited in paragraphs 53 to 56 above, the plea alleging the illegality of Article 6(2) of the GIP must be upheld and the non-renewal decision annulled, without it being necessary to rule on the two new complaints submitted at the hearing by counsel for the applicant”.