TL v Commission (Civil service - Members of the temporary staff - Judgment) [2022] EUECJ T-438/21 (13 July 2022)

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(Civil service – Members of the temporary staff – Fixed-term contract – Decision not to renew the contract – Vacancy notice – Manifest error of assessment – Duty of care – Psychological harassment – Liability)

European Commission, represented by B. Mongin and M. Brauhoff, acting as Agents,

composed of J. Svenningsen, President, R. Barents and J. Laitenberger (Rapporteur), Judges,

1 By her action based on Article 270 TFEU, the applicant, TL, seeks, first, annulment of the decision of the European Commission’s authority empowered to conclude contracts of employment (‘the AECE’) of 29 October 2020 not to renew her contract of employment (‘the contested decision’) and, so far as necessary, of the decision of 20 April 2021 rejecting her complaint brought under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against that decision (‘the decision rejecting the complaint’) and, secondly, compensation in respect of the damage which she claims to have suffered as a result of those acts.

2 On 16 November 2017, the applicant was engaged as a member of the temporary staff, pursuant to Article 2(b) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), at grade AD 7 in the Commission. Her contract was concluded for a period of three years and ended on 15 November 2020. She was assigned to the post of economic analyst within Unit C.3 of the Directorate-General for Economic and Financial Affairs.

3 The procedure for drawing up the applicant’s 2019 appraisal report was commenced at the beginning of 2020.

4 From 24 February 2020, the applicant was on medical leave until the end of her employment contract.

5 On 29 April 2020, in order to offer services sufficient flexibility to enable them to cover their staffing needs in the context of the COVID-19 pandemic, the Commission adopted a decision authorising its competent services, until 31 December 2020, to extend beyond three years, at the duly justified request of the services, contracts concluded under Article 2(b) of the CEOS, without requiring a selection procedure within the meaning of Article 3 of its decision of 16 December 2013 on policies for the engagement and use of temporary agents, if the initial contract of the person concerned was due to expire no later than 30 April 2021 (‘the Commission decision of 29 April 2020’).

6 On 10 September 2020, the applicant had a telephone conversation with her Head of Unit, during which the Head of Unit informed her that he did not intend to request an extension of her employment contract.

7 On 14 September 2020, the applicant and her Head of Unit exchanged emails summarising that telephone conversation.

8 On the same day, the applicant sent a letter to the Commission’s medical service to ascertain how it was possible that her Head of Unit had information on her medical situation. The medical service replied on 17 November 2020, stating that no information contained in her medical file had been disclosed to anyone.

9 On 2 October 2020, vacancy notice COM/2020/2132 was published for an economic analyst post in Unit C.3 of the Directorate-General for Economic and Financial Affairs, available from 16 November 2020.

10 On 8 October 2020, the Human Resources Business Correspondent of the Directorate-General for Economic and Financial Affairs (‘the HR BC’) had a telephone conversation with the applicant, during which he explained to her why the AECE did not intend to renew her contract. The applicant in turn informed the HR BC of what she regarded as a dysfunctionality of Unit C. 3, stemming from its management level.

11 On 15 October 2020, a member of the Account Management Centre 1, the body responsible for managing certain procedures in the field of human resources for the Directorate-General for Economic and Financial Affairs, formally informed the applicant of the AECE’s intention not to renew her contract, referring to the abovementioned explanations provided to her by the HR BC. He invited the applicant to submit her comments in that regard.

14 On 23 December 2020, the applicant lodged a complaint against the contested decision under Article 90(2) of the Staff Regulations.

15 On 13 January 2021, the applicant received her appraisal report in respect of 2019. The applicant has since brought an action against that report, which is the subject of Case T‑677/21, TL v Commission.

17 On 14 July 2021, the applicant submitted a request for assistance under Article 24 of the Staff Regulations on grounds of alleged harassment by her Head of Unit.

18 In the form of order she is seeking as it now stands, the applicant claims that the Court should:

– order the payment of compensation in respect of the damage resulting from the loss of a serious chance of having her contract renewed, in the amount of 90% of her gross salary, including contributions to the pension scheme, and order compensation in respect of the non-material harm which she claims to have suffered;

20 As a preliminary point it should be borne in mind that, according to settled case-law applicable to legal matters involving the EU civil service, the administrative complaint such as 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 judicature. Since, under the system laid down in the Staff Regulations or the CEOS, the person concerned must submit a complaint against the decision which he or she is contesting and then appeal against the decision rejecting his or her complaint, the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations (see judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraphs 41 and 43 and the case-law cited).

21 Moreover, according to settled case-law and in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 72 and the case-law cited).

22 In the present case, in so far as the decision rejecting the complaint merely confirms the contested decision, it has no independent content. Accordingly, the applicant’s action must be regarded as being directed against the contested decision alone. The legality of the contested decision must be examined taking into consideration the reasons set out in the decision rejecting the complaint, as that reasoning is deemed to coincide with that act (see, to that effect, judgment of 24 March 2021, BK v EASO, T‑277/19, not published, EU:T:2021:161, paragraph 43).

23 In support of her application for annulment, the applicant puts forward, in the application, two pleas in law. The first alleges a manifest error of assessment. The second alleges breach of the duty of care. At the hearing, the applicant put forward a third and new plea in law, alleging that the Commission, in its defence, amended the statement of reasons for the contested decision.

The third plea in law, alleging amendment of the statement of reasons for the contested decision

24 The applicant claimed at the hearing that the Commission had amended, in paragraph 67 of the defence, the statement of reasons for the contested decision. According to that paragraph, the contested decision states that ‘the [Directorate-General for Economic and Financial Affairs] believed that it could recruit an official to fill the permanent post and that that course of action was preferable in order to meet staffing needs than requesting the exceptional renewal of a TA2b contract’. The applicant considers that the Commission thus accepted, for the first time, the existence of staffing needs and, consequently, amended the reasoning of the contested decision during the litigation stage, which renders that statement of reasons inadequate and constitutes an infringement of the obligation to state reasons.

26 In that regard, it is sufficient to note that the extract from paragraph 67 of the defence cited by the applicant coincides with the statement of reasons for the contested decision and, therefore, that the applicant cannot successfully allege that the Commission, in the defence, substituted a new statement of reasons for the contested decision. The contested decision states as follows:

‘[The Directorate-General for Economic and Financial Affairs] believe they can now recruit an official to fill the permanent post [occupied by the applicant] and this is why [it] published a vacancy notice on 2 October 2020. As permanent posts are primarily intended for the appointment of officials, this course of action, if possible, is preferable, in order to meet [its] staffing needs, [to] requesting the exceptional renewal of [a] TA 2b contract.’

27 Consequently, that plea must be rejected on the ground that the applicant’s arguments are factually incorrect.

28 The applicant claims that the reasons relied upon in the contested decision and in the decision rejecting the complaint for the non-renewal of her contract are manifestly erroneous.

29 In the first place, the applicant submits that the needs of Unit C.3 in relation to her former post are in fact greater than those stated in the contested decision. That is confirmed by the fact that the post which is the subject of vacancy notice COM/2020/2132 is identical to that which was the subject of the vacancy notice of 22 June 2017 for the purposes of which the applicant was engaged (‘the 2017 vacancy notice’). The fact that an official of the European Union has priority over a member of the temporary staff as regards the filling of the post in question does not alter the fact that the publication of that vacancy notice demonstrates a need to recruit a member of staff to that position.

30 In the second place and more specifically, the applicant denies that she worked mainly, for the duration of her employment, on the file of the European Exchange Rate Mechanism II (‘ERM II’) as regards the Republic of Bulgaria’s entry into that mechanism and the Republic of Bulgaria’s Convergence Report.

31 In the third place, the applicant claims that the finding in the contested decision that the ERM II file had ‘lost its prominence since Bulgaria joined …’ is incorrect.

33 As a preliminary point, it must be observed that it follows from a combined reading of Article 1a(1) of the Staff Regulations and Articles 2 to 5 of the CEOS that permanent posts in the institutions are, in principle, intended to be filled by officials and that it is only by way of exception that such posts may be filled by other staff (see judgment of 6 February 2019, Karp v Parliament, T‑580/17, not published, EU:T:2019:62, paragraph 65 and the case-law cited).

34 Thus, although Article 2(b) of the CEOS expressly provides that temporary staff may be engaged to fill a permanent post, it also stipulates that that may occur only temporarily. Moreover, the second paragraph of Article 8 of the CEOS provides that temporary staff under Article 2(b) are not to be engaged for more than four years, and their contracts may be renewed not more than once for a maximum period of two years. At the end of that time, they must cease to be employed as temporary staff, either by termination of their employment or by appointment as officials in accordance with the Staff Regulations. That exception to the principle that permanent posts are to be filled by appointing officials may apply only in order to meet the needs of the service in a given case (judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 79).

35 Furthermore, according to the third subparagraph of Article 3(2)(a) of the Commission Decision of 16 December 2013 on policies for the engagement and use of temporary agents, where it is proposed to extend the contract of a member of the temporary staff covered by Article 2(b) of the CEOS beyond a period of three years, a selection procedure is to be organised.

36 Finally, point 7.2 of the Commission’s decision of 29 April 2020 exceptionally authorises, for reasons connected with the COVID-19 pandemic, and until 31 December 2020, the Directorate-General for Human Resources and Security to extend beyond three years, at the duly justified request of the services, the contracts of temporary staff recruited under Article 2(b) of the CEOS, without requiring a selection procedure, if the initial contract of the person concerned was due to expire no later than 30 April 2021.

37 The Court points out that, in view of the wide discretion conferred on the institutions with regard to the renewal of contracts, review by the courts is confined to ensuring 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).

38 In the present case, it should be noted that the AECE decided not to renew the applicant’s contract because it considered that the conditions capable of justifying such renewal, which in the instant case could only be granted on an exceptional basis, were not satisfied.

39 In the first place, the contested decision states that the ‘[applicant’s] main file – on which [she had] acquired experience – [had] lost its prominence since Bulgaria joined the ERM [II]’. In the decision rejecting the complaint, it is stated that ‘the ERM II file was by far the [applicant’s] main file during her time in [Unit C.3 of the Directorate-General for Economic and Financial Affairs]’. It is also stated in that decision that the applicant worked on the Convergence Report during the first months of her employment. Furthermore, according to that decision, she followed economic developments for certain countries, co-authored two analytical notes and attended a number of conferences.

40 In that regard, first, it must be held that the applicant’s arguments that she was not recruited for the ERM II and convergence files are ineffective. Contrary to what the applicant appears to suggest, the contested decision does not claim that she was recruited to work on those files and is not based on such a finding. That decision is based, inter alia, on the finding that those tasks actually constituted the applicant’s main tasks during the term of her contract.

41 Secondly, it is indeed apparent from the evidence put forward by the applicant, and in particular from the 2018 and 2019 appraisal reports and the planning of her tasks in the Sysper system as at 23 October 2020, that the applicant carried out or that she was supposed to carry out certain other tasks. However, the mere fact that the applicant carried out other tasks, in particular in 2018 and 2020 before her medical leave, does not show that the contested decision is vitiated by a manifest error of assessment. The AECE did not state that the applicant had studied only the ERM II file, but found, while acknowledging the existence of other tasks, that that file was the applicant’s main file. The evidence put forward by the applicant does not show that the other tasks were so important as to render that finding by the AECE manifestly incorrect.

42 Thirdly, the findings made in the contested decision and in the decision rejecting the complaint and referred to in paragraph 39 above are confirmed by other evidence in the file. The prominence of the ERM II file among the applicant’s tasks is apparent in particular from the extracts from the applicant’s 2018 and 2019 appraisal reports. The last of those reports states, specifically, that ‘her main assignment was the follow-up of Bulgaria’s process towards ERM II entry’.

43 In the second place, the parties disagree as to whether the ERM II file has lost prominence since the Republic of Bulgaria entered the ERM II and on the extent to which the applicant’s former unit is involved in the subsequent work concerning the transition of a Member State such as the Republic of Bulgaria to the euro. The applicant has not demonstrated, on the basis of factual evidence, that the finding in that respect in the contested decision and referred to in paragraph 39 above was manifestly erroneous.

44 First, the email of the Director-General of the Directorate-General for Economic and Financial Affairs, sent 5 October 2020 to all its staff, relied on by the applicant, does not contain any information from which it can be concluded that the ERM II file, on which the applicant worked, remains of particular significance following the entry of the Republic of Bulgaria in the ERM II. The Director-General mentioned in that email that the Directorate-General for Economic and Financial Affairs is responsible for overseeing the plan for transition to the euro and has a role to play in communication. He does not state, however, that the applicant’s former unit will be responsible for that work.

45 Secondly, the applicant does not provide any evidence in support of her claim that the preparation of the transition of a Member State to the euro falls within the specific responsibility of her former unit, such as to enable the Commission’s assertions to the contrary in that regard to be called into question.

46 Thirdly, it is necessary to reject the applicant’s argument that the consideration expressed by the AECE in the decision rejecting the complaint, relating to the improbability that other Member States would request to join the ERM II in 2021 and 2022, was very subjective, as demonstrated by the fact that, at the beginning of her contract, it had not been envisaged that the Republic of Bulgaria and the Republic of Croatia would make such a request. That argument does not show that that consideration expressed by the AECE is incorrect. Moreover, workload forecasts, which are dependent on external factors and outside the administration’s control, inherently involve a degree of uncertainty.

47 In the third place, as regards the staffing needs of the unit and the possibility of recruiting an official to meet those needs, it is stated in the contested decision that the exceptional renewal of the applicant’s contract could not be justified either by her specific expertise on the ERM II file or by business continuity in that regard. As stated in paragraph 26 above, that decision states that the Directorate-General for Economic and Financial Affairs took the view that it was possible to recruit an official to the post occupied by the applicant, and that it was preferable to do so in order to meet the staffing needs if that were possible, rather than requesting the exceptional renewal of a temporary staff contract under Article 2(b) of the CEOS, since permanent posts were principally intended to be filled by officials.

48 The decision rejecting the complaint indicates that there is no contradiction between the fact that little work is expected on the ERM II files in 2021 and 2022 and the publication of a vacancy notice similar to the 2017 vacancy notice, on the basis of which the applicant was recruited. According to that decision, vacancy notices often reflect the remit of the unit concerned. It is highly likely that an official recruited will work at a later time, in the context of his or her duties, on convergence aspects such as the ERM II or the Convergence Report. Nevertheless, according to that decision, in practice, those tasks would not become prominent in 2021 and 2022, with the exception of the Convergence Report. Thus, the official to be recruited would have enough time to acquire the necessary knowledge without giving rise to business continuity issues. Finally, the decision rejecting the complaint points out that vacancy notice COM/2020/2132 contains an additional sentence in relation to the 2017 vacancy notice, according to which the candidate should have ‘a track record in carrying out analytical work on macroeconomic issues and a good sense of the policy implications of economic analysis’ with a view to carrying out other types of duties than those connected with ERM II and the Convergence Report, in particular analytical work on macroeconomic issues.

49 In that regard, first, the Court finds that the fact that the Commission published vacancy notice COM/2020/2132, which is similar to the 2017 vacancy notice, does not demonstrate the existence of an urgent need for temporary staff or business continuity issues with regard to the unit in question, but only the possibility of filling a vacancy for a permanent post which, as mentioned in paragraphs 33 and 34 above, is intended to be filled by the appointment of an official. Moreover, the considerations expressed by the AECE to the effect that the relatively low workload envisaged on the ERM II files and on the Convergence Report will enable the official to be recruited to acquire the necessary knowledge without giving rise to business continuity issues are plausible and not called into question by the applicant.

50 The issues whether and, if so, to what extent, vacancy notice COM/2020/2132 is identical to the 2017 vacancy notice, under which sub-title of vacancy notice COM/2020/2132 amendments were inserted, and whether the applicant meets the profile sought are thus irrelevant for the purpose of determining whether the finding made by the AECE as to the absence of reasons justifying the exceptional renewal of her contract and the possibility of recruiting an official to fill a permanent post is vitiated by a manifest error of assessment. Consequently, the applicant’s arguments relating to those factors must be rejected.

51 Secondly, the AECE stated in the decision rejecting the complaint that the fact that the responsibilities of Unit C.3 were extended had not created staffing needs in that unit. Two members of staff of the unit that was originally responsible were transferred to Unit C.3 in order to discharge those new responsibilities. The applicant has not put forward any argument capable of casting doubt on that plausible statement.

52 Thirdly, the applicant’s argument that the staffing needs of the Directorate-General for Economic and Financial Affairs increased following three new streams of activity aimed at combating the negative effects of the COVID-19 crisis does not demonstrate either the existence of a specific need as regards the applicant’s former post or even the existence of such a need within the applicant’s former unit.

53 Fourthly, contrary to what the applicant claims, the fact that on 23 October 2020 certain tasks were entered in the Sysper system by way of planning in respect of the period from 1 January 2020 to 22 October 2022 for work covered by the post occupied by the applicant does not contradict the AECE’s findings relating to the lack of reasons justifying the exceptional renewal of her contract. Those entries do not indicate that those tasks are urgent or particularly important. The mere fact that tasks were envisaged in respect of the post occupied by the applicant does not demonstrate the existence of reasons justifying the exceptional renewal of her contract. The applicant does not put forward any argument to show that those tasks could not be performed by another person, in particular by the official to be recruited.

54 Consequently, the applicant has not shown that the contested decision was vitiated by a manifest error of assessment. Therefore, the first plea in law must be rejected.

55 In the second plea, the applicant claims, in the first place, that there is nothing in the contested decision or in the decision rejecting the complaint to indicate that the Commission balanced the interests of the service against the interests of the staff member, as nevertheless required by the case-law. As is apparent from the contested decision, only the staffing needs were taken into consideration. As is apparent from the decision rejecting the complaint, the applicant’s interest was merely taken into consideration and not balanced against the interests of the service.

56 Furthermore, the grounds relied on by the applicant’s Head of Unit and by the human resources managers concern solely the interests of the service, with the exception of a single ground, the taking into account of which was nevertheless unlawful. During the telephone conversation of 10 September 2020, the Head of Unit justified the decision not to renew the contract, inter alia, by the applicant’s state of health and by the fact that, based on discussions with psychologists, she was not recommended to return to the unit. According to the applicant, if the Commission took her state of health into consideration, the contested decision is unlawful because of a breach of personal medical data. The applicant also submits that, if the Commission did not take her state of health into consideration, there is no evidence that the Commission balanced her interests against the interests of the service.

57 In the second place, the applicant claims that she was the victim of psychological harassment, within the meaning of Article 12a(3) of the Staff Regulations, by her Head of Unit from 2018 onwards. In particular, the applicant was left out of email exchanges, ignored by her Head of Unit, requested to carry out long and unnecessary scientific research and was the subject of accusations and insinuations that she did not wish to carry out such research. She also received instructions in certain files that caused tension with other colleagues. Lastly, her Head of Unit accused her of leaving for holidays or leaving the office earlier than usual, and devalued her from a professional point of view. The applicant submits that the harassment led to her medical leave and, ultimately, to the non-renewal of her contract. One of the reasons relied on in order not to renew the contract was that the files on which the applicant had been working had been reassigned to other colleagues during her medical leave.

58 The applicant claims that the Commission made no attempt to find a solution, despite the fact that the applicant attempted to discuss the situation with her Head of Unit and even though she met a confidential counsellor and the Commission’s medical service on several occasions. Specifically, the confidential counsellor discouraged her from bringing proceedings for psychological harassment. The applicant did not receive any support from the Commission’s medical service.

60 In that regard, it should first of all be recalled that the renewal of a temporary staff contract is a mere possibility left to the discretion of the competent authority, in this case the AECE (judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 118).

61 The institutions have a broad 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 interests of the service. Thus, the competent authority is required, when it takes a decision concerning the situation of a member of staff, to take into consideration all the factors which may affect its decision, that is, not only the interests of the service, but also, in particular, that of the member of staff concerned. That is a consequence of the administration’s duty of care, which 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 staff (see judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 119 and the case-law cited).

62 However, the taking into consideration of the personal interests of the staff member concerned does not extend so far as to prevent the competent authority from not renewing a fixed-term contract despite the opposition of that staff member, if the interests of the service demand it (see judgment of 14 July 2021, IN v Eismea, T‑119/20, not published, EU:T:2021:427, paragraph 88 and the case-law cited). In that situation, the duty of care involves the obligation of the competent authority to explain, as part of the statement of grounds for the decision not to renew the contract, the reasons why it had allowed the interests of the service to prevail (see order of 22 October 2015, Macchia v Commission, T‑80/15 P, EU:T:2015:845, paragraph 31 and the case-law cited).

63 In the present case, it is clear from the file that, at the stage of the contested decision, the AECE took into consideration both the interests of the service and those of the applicant. It is apparent from the contested decision that the AECE took into consideration all the evidence put forward by the applicant in her observations of 21 October 2020, and in particular her specific expertise on the ERM II file. Moreover, that decision indicates that it was not possible to transfer the applicant to another post, given that her contract was linked to a specific post for which it had not been possible to recruit an official. Finally, the AECE gave its reasons for considering that the conditions which could exceptionally justify such a renewal were not satisfied, having taken due account of the applicant’s comments. In that regard, the AECE stated in the contested decision that the exceptional renewal of the applicant’s contract could not be justified either by her specific expertise on the ERM file or by business continuity, since the applicant’s main file had lost prominence and the other files had been redistributed. In addition, it is explained in that decision that the Directorate-General for Economic and Financial Affairs considered that it was able to recruit an official for the post occupied by the applicant.

64 The applicant’s argument that, although the dialogues between herself and her Head of Unit, on the one hand, and, on the other hand, the human resources managers may show that she had the opportunity to acquaint herself with the statement of reasons for the contested decision orally and in writing, they do not show that the Commission balanced the interests of the service against her interests, likewise does not call into question the conclusion that it is apparent from the contested decision that the AECE took into consideration both the interests of the service and those of the applicant.

65 Consequently, the applicant’s claim that no aspect relating to her personal interest was taken into account is unfounded.

66 As regards, specifically, the question whether the AECE took into account the applicant’s state of health in order to justify the decision not to extend the contract, it should be noted that the Commission denies that to have been the case.

67 In that regard, it must be held that the applicant’s state of health was not relied on as a ground justifying the decision not to renew her contract either in the contested decision or in the decision rejecting the complaint. It is true that, in her email of 14 September 2020 to her Head of Unit, the applicant stated that, during their telephone conversation of 10 September 2020, the Head of Unit, inter alia, referred to her state of health as a reason not to propose the renewal of her contract. Nevertheless, it is apparent from the file that the Head of Unit, by emails of 14 September 2020, directly provided clarifications in that regard, stating that he had no information concerning the applicant’s state of health and that he had not based his decision not to propose the renewal of her contract on information relating to her state of health. In addition, the medical service confirmed that no information in the applicant’s medical file had been disclosed outside the medical service.

68 Consequently, the applicant has not demonstrated that the AECE took her state of health into account in order to justify the decision not to renew her contract.

69 At the hearing, the applicant claimed that the Commission should have taken into account the fact that her state of health had been affected and examined the situation with an open mind.

70 In that regard, first, it should be noted that that argument contradicts the applicant’s argument referred to in paragraph 56 above that the Commission should not have taken into account her state of health. Secondly, in response to a question put by the Court at the hearing, the applicant stated that she was not arguing that the Commission should have decided to extend her contract because of her illness, but that the Commission should have taken it into account. Thirdly, in her observations of 21 October 2020, the applicant stated that her state of health had significantly improved and that she was ready to return to work in another position. Thus, the applicant has not explained in what way the Commission did not examine the situation with an open mind before adopting the contested decision.

72 In addition, it is necessary to reject the applicant’s arguments that, first, the duration of her service was not taken into account and, secondly, her 2019 appraisal was not completed before the end of her contract.

73 In particular, the applicant does not explain how the duration of her service and the fact that the procedure relating to the report was ongoing when the AECE adopted the contested decision could be relevant for the purpose of challenging that decision, which is based on entirely different considerations. The Court notes that the AECE’s reasons for not granting an exceptional renewal of the contract on the expiry of the initial period agreed between the applicant and the Commission, which was respected in full, were the loss of prominence of the applicant’s main file and the possibility of recruiting an official to the permanent post occupied by the applicant. The duration of the applicant’s service and her 2019 appraisal report have no connection with those reasons.

74 As regards the applicant’s argument alleging that she was the victim of psychological harassment, it should be noted that the case-law recognises the possibility of relying on the existence of psychological harassment not only in support of a claim for annulment directed against the rejection of a request for assistance made by a member of staff on the ground that he or she considers him or herself to be the victim of harassment, but also in support of a claim for annulment directed against other decisions taken by the administration (see, to that effect, judgment of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 147 and the case-law cited). However, an applicant’s allegation of psychological harassment by his or her line managers is not sufficient to establish that every act adopted by his or her line management is unlawful. The official concerned must also demonstrate the effect of the conduct allegedly constituting psychological harassment on the content of each contested act. Thus, it is only by way of exception that a plea alleging harassment may be relied on in the context of the review of the legality of an act adversely affecting a member of staff if it appears that there is a link between the alleged harassment and the grounds of the contested act (see, to that effect, judgments of 13 December 2017, HQ v CPVO, T‑592/16, not published, EU:T:2017:897, paragraph 96, and of 19 September 2019, FV v Council, T‑27/18 RENV, not published, EU:T:2019:621, paragraph 148 and the case-law cited).

75 In the present action, the applicant puts forward two arguments seeking to establish the existence of a link between the alleged psychological harassment and the grounds of the contested decision. First, she claims that the alleged psychological harassment resulted in her illness and in the non-renewal of her contract. Secondly, she claims that such a link exists because one of the grounds relied on in the contested decision was that some of the files on which the applicant worked had been reassigned to other colleagues during her medical leave.

77 First, it has already been held that the applicant has not demonstrated that her state of health was taken into account by the AECE in order to justify the adoption of the contested decision.

78 Secondly, the applicant also fails to demonstrate any other link between the alleged psychological harassment and the grounds of the contested decision. As regards, specifically, the reassignment of some of her files following her medical leave, it must be stated that the fact that it was possible to reallocate some of the applicant’s files to other colleagues during her medical leave corroborated the finding that there were no staffing needs resulting from those files such as to have justified the exceptional renewal of her contract. The existence of that possibility has no connection with the alleged psychological harassment.

79 In any event, the applicant has not in any way substantiated her allegations of psychological harassment prior to the adoption of the contested decision and, in particular, in her observations of 21 October 2020. Furthermore, as regards the link between those allegations and the intention not to renew her contract, she merely asserts, in her observations, that the non-renewal of her contract is a punishment for her illness, which is a result of her working conditions. In the absence of any detail or evidence provided by the applicant, the AECE was not in a position to take into account the alleged psychological harassment in the decision on the refusal to grant an exceptional renewal of her contract. Moreover, as has been stated in paragraph 68 above, the applicant has not demonstrated that her state of health had any influence whatsoever on the contested decision. In addition, it is apparent from the file that the AECE reacted entirely in line with the duty of care by encouraging the applicant to submit a request for assistance under Article 24 of the Staff Regulations if she considered herself to have been the victim of harassment. Lastly, although the applicant specified at the complaint stage, to a certain extent, her allegations of psychological harassment, she still failed to explain how the alleged psychological harassment could have had an effect on the contested decision.

80 It follows that the applicant’s arguments based on the existence of alleged psychological harassment must be rejected.

81 For the same reasons, it is necessary to reject the applicant’s arguments that, first, the Commission made no attempt to find a solution and, secondly, that the confidential counsellor discouraged her from initiating harassment proceedings. Even if it were established, such conduct, adopted in respect of allegations whose connection with the contested decision has not been established, does not itself have any connection with that decision. In any event, the Court observes that those arguments put forward by the applicant are not substantiated and notes that, in the contested decision, the AECE expressly encouraged the applicant to submit a request for assistance under Article 24 of the Staff Regulations if she considered herself a victim of psychological harassment.

82 As regards the applicant’s argument that the flexibility to meet the Commission’s staffing needs in the context of the COVID-19 pandemic, introduced by the Commission decision of 29 April 2020, cannot be interpreted as meaning that the Commission’s duty of care may be infringed, it is sufficient to note that no breach of the duty of care has been established in the present case. The argument is therefore rejected.

83 Consequently, the second plea in law must be rejected, as, therefore, must the claim for annulment of the contested decision.

84 The applicant considers that the illegalities affecting the contested decision and the decision rejecting the complaint constitute wrongful acts. As a result of those illegalities, she lost a very serious opportunity to secure the renewal of her contract. Consequently, the applicant seeks payment of compensation amounting to 90% of her gross salary, including contributions to the pension scheme.

85 The applicant also seeks compensation in respect of the non-material damage that she claims to have suffered as a result of those illegalities, which caused her significant stress and strong feelings of injustice. Those illegal acts also constitute a lack of respect, are defamatory and have damaged her health, dignity and professional reputation in an irrecoverable manner. She suffered a serious breakdown as of 2019, which resulted in medical leave for several months in 2020. She continues to undergo therapy and is still unemployed. The applicant estimates the non-material damage ex aequo et bono at the date on which the present action was brought at EUR 45 000, corresponding to six months’ gross salary, including contributions to the pension scheme.

87 According to settled case-law, a claim for compensation for damage must be rejected where it is closely associated with a claim for annulment, which has itself been dismissed either as inadmissible or as unfounded (see judgment of 1 April 2009, Valero Jordana v Commission, T‑385/04, EU:T:2009:97, paragraph 90 and the case-law cited).

88 Since the application for annulment of the contested decision must be rejected, the claim for damages must be rejected and, consequently, the action must be dismissed in its entirety.

89 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

90 Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> TL v Commission (Civil service - Members of the temporary staff - Judgment) [2022] EUECJ T-438/21 (13 July 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T43821.html Cite as: EU:T:2022:455, ECLI:EU:T:2022:455, [2022] EUECJ T-438/21

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