27 February 2018 (*)

(Civil service — Members of the temporary staff — Fixed-term contracts — Decision not to renew — Request for renewal having the same purpose as a complaint within the meaning of Article 90(2) of the Staff Regulations — Inadmissibility)

In Case T‑263/17,

SD,

applicant,

European Institute for Gender Equality (EIGE),

defendant,

ACTION under Article 270 TFEU for, first, annulment of the implied decision of EIGE dated 26 August 2016, rejecting the Applicant’s request dated 26 April 2016 for a second renewal of his contract of employment and, where necessary, annulment of the decision of EIGE of20 January 2017 rejecting the applicant’s complaint of 3 October 2016 against the implied decision of 26 August 2016 and, secondly, compensation for the damage allegedly suffered by the applicant as a result of those decisions,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni, President, L. Madise and R. da Silva Passos (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

On 16 April 2011, the applicant, SD, was taken on by the European Institute for Gender Equality (EIGE) as a member of the temporary staff within the meaning of Article 2(a) of the Conditions of Employment of Other Servants of the European Union for a renewable period of five years in order to provide assistance in the programming, monitoring and evaluation of the implementation of EIGE’s work programme. On 1 January 2014, his contract of employment became a contract under Article 2(f) of the Conditions of Employment of Other Servants of the European Union.

On 12 October 2015, the head of operations of EIGE submitted a proposal to the Director of EIGE, in his capacity as the authority empowered to conclude contracts of employment (‘the AECCE’), not to renew the applicant’s contract. The wording of the proposal was sent to the applicant in December 2015 following a request on his part.

At a meeting on 26 October 2015 between the AECCE and other officers of EIGE, on the one hand, and the applicant, on the other, the applicant was informed, first, that his contract would not be extended when it expires in April 2016, because his post would be abolished in order to respond as quickly as possible to the pressing operational needs of EIGE and, secondly, that his contract would nonetheless be extended for a period of six months in order to give him additional time to find a new job, subject to verification of the legal validity of that option consisting of an extension for a shorter period.

By decision of the AECCE of 30 November 2015, the applicant’s contract was extended for a period of six months, that is to say from 16 April to 15 October 2016 (‘the decision of 30 November 2015’). The AECCE justified the decision by indicating that the post occupied by the applicant was going to be abolished.

On 15 February 2016, the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the decision of 30 November 2015 (‘the complaint of 15 February 2016’), disputing the decision to abolish his post and requesting that the decision to renew his contract for six months be replaced by another decision to renew the contract for a period of three years.

By email of 26 April 2016, the applicant asked the AECCE to renew his ‘current contract of employment with EIGE’. In that email, he stated that the request was ‘without prejudice to [his complaint] of 15/2/2016’.

By email of 11 May 2016, the AECCE replied to the email of the applicant referred to in paragraph 6 above. It stated, first of all, that it was in the process of analysing the complaint of 15 February 2016. Next, it stated that, without prejudice to its reply to that complaint, in the decision of 30 November 2015, it had not followed the proposal of EIGE’s head of operations not to renew the applicant’s contract. Finally, it asked the applicant to explain how the fact that the AECCE had not followed the recommendation not to renew his contract had adversely affected him.

By email of 22 May 2016, the applicant replied to the email of the AECCE of 11 May 2016. He pointed out in particular that, in his complaint of 15 February 2016, he had already stated the reasons why the decision to abolish his post should be annulled and the decision to renew his contract for a period of only six months should be replaced by a decision to renew the contract for a period of three years.

By decision of 10 June 2016, the AECCE rejected the complaint of 15 February 2016 as unfounded. It follows in particular from that decision, which was not the subject of an appeal, that the renewal of the applicant’s contract for a period of six months was a compromise between EIGE’s internal recommendation of 12 October 2015 not to renew the contract and the safeguarding of the interests of the applicant, who wished to obtain a renewal for a longer period.

On 3 October 2016, the applicant lodged a complaint under Article 90(2) of the Staff Regulations (‘the complaint of 3 October 2016’) against the alleged implied decision of the AECCE of 26 August 2016 rejecting his request for the renewal of his contract set out in the email of 26 April 2016.

On 20 January 2017, the AECCE rejected as manifestly inadmissible the complaint of 3 October 2016 and the applicant’s request for renewal of the contract of 26 April 2016 (the alleged implied decision of the AECCE of 26 August 2016 and the decision of the AECCE of 20 January 2017 being hereinafter referred to together as ‘the contested decisions’) on the ground that the applicant could not, by that request and that complaint, re-open the time limit for bringing proceedings to challenge the decision of 10 June 2016, which had become final and had already decided on his complaint of 15 February 2016.

Procedure and forms of order sought

By application lodged at the Court Registry on 3 May 2017, the applicant brought the present action.

By separate document lodged at the Registry of the Court on 17 July 2017, EIGE raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the Court. The applicant lodged its observations on that objection on 14 September 2017.

The applicant claims that the Court should:

–annul the contested decisions;

–order EIGE to pay him compensation for the material and non-material damage allegedly suffered, and

–order EIGE to pay the costs.

EIGE contends that the Court should:

–declare the action manifestly inadmissible, and

–order the applicant to pay the costs.

Law

Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility or lack of competence without considering the merits of the case. In the present case, as EIGE has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

In its objection of inadmissibility, first of all, EIGE submits that the applicant’s email of 26 April 2016 does not constitute a request within the meaning of Article 90(1) of the Staff Regulations, but merely a reminder by which the applicant was seeking only to impress upon the AECCE the importance of his complaint of 15 February 2016, and that, consequently, the present action, based on the alleged implied decision rejecting the request of 26 April 2016 and the decision rejecting the complaint of 3 October 2016, is inadmissible. On the one hand, EIGE argues that the applicant requested, in his complaint of 15 February 2016, that the decision to renew his contract by six months be reconsidered and replaced with a decision to renew his contract of employment for a period of three years, and that its decision of 10 June 2016 rejecting that complaint, within the meaning of Article 90(2) of the Staff Regulations, was not followed by an action brought before the Court. On the other hand, EIGE submits that the request for renewal of the current contract of 26 April 2016 is not a request within the meaning of Article 90(1) of the Staff Regulations, for two reasons. First, the request was sent during the four month period initiated by the complaint of 15 February 2016, and is therefore an integral part of the proceedings relating to that complaint, the reason why such a request cannot be a separate pre-litigation procedure. Second, the claim of 26 April 2016 was only a reminder to EIGE, sent as a follow-up to the complaint of 15 February 2016.

Secondly, EIGE submits that, even if the email of 26 April 2016 was regarded as a request within the meaning of Article 90(1) of the Staff Regulations, quod non, it would be manifestly inadmissible since that request and the complaint of 15 February 2016 had the same subject matter. As part of that argument, EIGE submits, in the alternative, that the complaint of 3 October 2016 was submitted out of time and that it is, therefore, in any event inadmissible: on the one hand, by its reply of 11 May 2016, the AECCE implicitly refuted that a request, within the meaning of Article 90(1) of the Staff Regulations, had been made in the email of 26 April 2016, and the applicant did not lodge a complaint within the meaning of Article 90(2) of the Staff Regulations within three months of the receipt of the email of 11 May 2016, as a result of which the complaint of 3 October 2016 was submitted out of time; on the other hand, since, in its decision of 10 June 2016, rejecting the complaint of 15 February 2016, the AECCE explicitly rejected the applicant's request for renewal of the contract for a period longer than the six-month period provided for in the decision of 30 November 2015, as the applicant had not lodged a complaint within the meaning of Article 90(2) of the Staff Regulations within three months of the decision of 10 June 2016, the complaint of 3 October 2016 was submitted out of time.

The applicant disputes the arguments of EIGE. First of all, he submits that the request made by the email of 26 April 2016 was made in parallel with his complaint of 15 February 2016, which he indicated in that email while stating that it was without prejudice to that objection. Secondly, he argues that he had an interest in trying to obtain a second renewal of his contract after the first renewal, since the request of 26 April 2016 was a request to the AECCE to renew the contract in force at that date which had already been renewed once. Thirdly, he submits that there is nothing to prevent the two proceedings (relating, on the one hand, to the complaint of 15 February 2016 and, on the other, to the request of 26 April 2016) from taking place in parallel and that, accordingly, the email of 26 April 2016 must be regarded as a request within the meaning of Article 90(1) of the Staff Regulations. The applicant claims that, since he had not received any communication from the AECCE during the four months following that request, seeking a second renewal of his contract, on 3 October 2016, he submitted a complaint against the implied decision of 26 August 2016 which had rejected that request on 26 April 2016.

The applicant also submits that the subject matter of his complaint of 15 February 2016 was different from that of his request of 26 April 2016. According to the applicant, the purpose of the former was to challenge the duration of the first renewal of his contract of employment with EIGE, while the purpose of his request of 26 April 2016 was to secure a second renewal of his new contract of employment with EIGE, namely after the first renewal of six months. The applicant states that, on 26 April 2016, he could not know whether the AECCE’s reply to his complaint of 15 February 2016 would be favourable or not and if the time limit for bringing an action would start to run. He concludes that, on 26 April 2016, he would not have been able to seek to re-open a time limit for bringing an action before the EU Courts in this case, given that such a time limit did not exist at that time.

Moreover, the applicant challenges the claim that the complaint of 3 October 2016 was submitted out of time and is, therefore, in any event, inadmissible: he takes the view, first, that the AECCE’s email of 11 May 2016 did not provide any substantive response to its request of 26 April 2016 and that therefore, it cannot be considered to be a decision of explicit or implicit rejection of his request; moreover, in its decision of 10 June 2016, the AECCE only rejected the complaint of 15 February 2016 (concerning the duration of the first renewal of the applicant’s contract of employment with EIGE), as a result of which that decision does not refer to the option of a second renewal of that contract and of the applicant’s request of 26 April 2016.

The Court considers it appropriate to examine the two arguments raised by EIGE.

Article 90 of the Staff Regulations provides:

‘1. Any person to whom these Staff Regulations apply may submit to the appointing authority a request that it take a decision relating to him. ... The authority shall notify the person concerned of its reasoned decision within four months from the date on which the request was made. If at the end of that period no reply to the request has been received, this shall be deemed to constitute an implied decision rejecting it, against which a complaint may be lodged in accordance with the following paragraph.

–on the date of publication of the act if it is a measure of a general nature;

–on the date of notification of the decision to the person concerned, but in no case later than the date on which the latter received such notification, if the measure affects a specified person; if, however, an act affecting a specified person also contains a complaint against another person, the period shall start to run in respect of that other person on the date on which he receives notification thereof but in no case later than the date of publication;

–on the date of expiry of the period prescribed for reply where the complaint concerns an implied decision rejecting a request as provided for in paragraph 1.

The authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged. If, at the end of that period, no reply to the complaint has been received, this shall be deemed to constitute an implied decision rejecting it, against which an appeal may be lodged under Article 91.’

Article 91 of the Staff Regulations provides as follows:

‘1. The Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and any person to whom these Staff Regulations apply regarding the legality of an act affecting such person adversely within the meaning of Article 90(2). ...

–the appointing authority has previously had a complaint submitted to it pursuant to Article 90(2) within the period prescribed therein, and

–the complaint has been rejected by express decision or by implied decision.

–on the date of notification of the decision taken in response to the complaint;

–on the date of expiry of the period prescribed for reply where the appeal is against an implied decision rejecting a complaint submitted pursuant to Article 90(2); nevertheless, where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired, the period for lodging the appeal shall start to run afresh.

In the present case, on the one hand, in his complaint of 15 February 2016 against the decision of 30 November 2015, the applicant asked the AECCE, first, to annul the decision concerning the abolition of the position assisting in the programming of EIGE activities and, secondly, to reconsider the decision to renew his contract for a period of six months and substitute it with a decision to renew his contract for a period of three years. In that respect, it should be noted that the decision of 30 November 2015 was taken following the meeting of 26 October 2015 (see paragraph 3 above), in which the applicant was informed that his contract, which was not in principle to be extended upon its expiry in April 2016, was, however, going to be extended for a duration of six months to allow for time to find a new job.

On the other hand, in its email of 26 April 2016, the applicant requested the renewal of his contract of employment with EIGE. He further stated that the request was ‘without prejudice to [his complaint] of 15/2/2016’.

28The question which arises in the present case is whether and to what extent the applicant, by his email of 26 April 2016, lodged a request, within the meaning of Article 90(1) of the Staff Regulations, independently of his complaint of 15 February 2016, which, on that date, had not yet resulted in a decision by the AECCE.

29It should be recalled that, according to settled case-law, the precise legal classification of documents sent by the applicant to the AECCE prior to an action being brought falls within the sole discretion of the judge. In that respect, the content of the measure takes precedence over its form (see, to that effect, judgment of 8 July 2015, DP v ACER, F‑34/14, EU:F:2015:82, paragraphs 28 and 29 and the case-law cited).

30In that context, the applicant’s email of 26 April 2016 must be read together with the response from the AECCE of 11 May 2016 and the reply to it by the applicant of 22 May 2016. It is only by taking into account all of the correspondence and its factual context that the General Court may assign a legal classification to the applicant’s email of 26 April 2016.

31First of all, in his email of 26 April 2016, the subject of which is ‘renewal’, the applicant requested the renewal of his ‘current contract of employment with EIGE’ and added that the request was ‘without prejudice to [his complaint] of 15/2/2016’.

32The AECCE then replied to that message in its email of 13 May 2016 by stating that it had understood the message as reiterating the complaint of 15 February 2016, lodged by the applicant against the decision of 30 November 2015. The AECCE made express reference to that complaint, arguing that ‘it [was] understandable that the time having passed since the lodging of [his] Article 90(2) complaint of 15 February 2016 may seem long [to him]’ and that it was ‘carefully assessing [his] complaint’. Moreover, in the same email of 13 May 2016, the AECCE stated that, without prejudice to its reply to the complaint, it had not, in its decision of 30 November 2015, followed the recommendation not to renew the applicant’s contract and asked him to explain why he took the view that he had been affected by the fact that that recommendation had not been followed.

33Finally, in his email of 22 May 2016, the applicant claimed that he was ‘not sure [he] fully [understood] the reasons underlying the [AECCE’s] request, and its implications’. On the other hand, he answered the question raised by the AECCE in the email of 13 May 2016 by adding the following: ‘In any event, I trust that my [complaint] of 15 February 2016 ... provides comprehensive reasons why the decision to phase out [my post] should be annulled and the decision to renew my contract of employment at EIGE for six months only should be replaced with a decision to renew my contract of employment ... for the period of three years’.

34It follows that the applicant’s email of 26 April 2016, sent at a time when the competent authority had not yet responded to the complaint of 15 February 2016, the subject of which was ‘renewal’, and which made particular reference to the fact that it was without prejudice to the complaint, was liable to be understood by the AECCE, as was the case, as being intended to emphasise the claims made in the complaint of 15 February 2016 and therefore as having the same purpose as the latter.

35This is confirmed not only by the reply of the AECCE of 11 May 2016 demonstrating that it had clearly understood the email of the applicant of 26 April 2016 as reiterating the complaint of 15 February 2016, but also and especially by the applicant’s reply thereto on 22 May 2016.

36In his email of 22 May 2016, the applicant replied to the AECCE by referring to his complaint of 15 February 2016 and without attempting to explain that, by its email of 26 April 2016, its intention was to introduce a new request under Article 90(1) of the Staff Regulations. The applicant did not therefore state, in the email of 22 May 2016, the ‘renewal’ to which he was referring, in particular in the subject line of the email of 26 April 2016, and did not therefore explain that the purpose of his email of 26 April 2016 was not, contrary to what the AECCE had understood in its email of 11 May 2016, the renewal of the contract under discussion and called into question by his complaint of 15 February 2016.

37On the contrary, as is apparent from paragraphs 25 and 32 above, in his email of 22 May 2016, the applicant explicitly restated the findings it had made in the complaint of 15 February 2016, in which he had requested the AECCE to reconsider the decision relating to the renewal of his contract for a period of six months by substituting it with the decision to renew his contract for a period of three years.

38As noted correctly by EIGE, the applicant did not react to the email of 11 May 2016 by claiming that his email of 26 April 2016 constituted a request within the meaning of Article 90(1) of the Staff Regulations. Not only did he not react in that way in his reply of 22 May 2016, but he did not do so at a later stage, up until his complaint of 3 October 2016.

39In so doing, the Applicant therefore referred, with the email of 26 April 2016, to the same measure adversely affecting him that he had challenged in his complaint of 15 February 2016, namely, the decision of 30 November 2015. Consequently, it must be held that his complaint of 15 February 2016 and his email of 26 April 2016 had the same purpose.

40It follows that the applicant’s email of 26 April 2016, read together with EIGE’s reply of 11 May 2016 and the response thereto of 22 May 2016, cannot constitute a new request under Article 90(1) of the Staff Regulations, but must be regarded as purely reiterative of the complaint of 15 February 2016 and cannot therefore prolong the pre-litigation procedure (see, to that effect, judgment of 11 December 2007, Sack v Commission, T‑66/05, EU:T:2007:370, paragraph 37 and the case-law cited, and order of 8 June 2016, Massoulié v Parliament, F‑146/15, EU:F:2016:126, paragraph 31 and the case-law cited).

41According to settled case-law, the admissibility of an action brought before the Court under Article 270 TFEU and Article 91 of the Staff Regulations depends upon the pre-litigation procedure being conducted in the proper manner and upon the prescribed time limits for that procedure being complied with (see judgments of 6 July 2004, Huygens v Commission, T‑281/01, EU:T:2004:207, paragraph 125 and the case-law cited, and of 24 April 2014, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 64 and the case-law cited).

42In that regard, it should specifically be borne in mind that the time limits for lodging complaints and bringing actions referred to in Articles 90 and 91 of the Staff Regulations are a matter of public policy and cannot be left to either the discretion of the parties or the discretion of the court, whose responsibility it is to ascertain, of its own motion, if they have been complied with. Those time limits meet both the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (judgment of 7 July 1971, Müllers v ESC, 79/70, EU:C:1971:79, paragraph 18, and of 24 April 2014, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 65 and the case-law cited).

43It follows from the foregoing considerations that the applicant did not bring an action before the General Court within the period of three months laid down in Article 91(3) of the Staff Regulations against the decision of the AECCE of 10 June 2016, rejecting the complaint of 15 February 2016, from which it was apparent, as is set out in paragraph 9 above, that the renewal of the contract for a period of six months, which had been the subject of the decision of 30 November 2015, was a compromise between EIGE’s internal recommendation of 12 October 2015 not to renew the contract and the safeguarding of the interests of the applicant, who wanted it renewed for a longer period. It follows that the AECCE had already decided, with the rejection of the complaint of 15 February 2016, not to propose a further renewal of the applicant’s contract beyond the renewal which had already taken place.

44The present action must therefore be dismissed as inadmissible in so far as it is directed against the contested decisions.

45As regards the claim for compensation for the harm allegedly suffered by the applicant, the latter claims that he has suffered, on the one hand, material damage linked to the termination of his contract of employment and the loss of remuneration which follows therefrom and, on the other, non-material damage resulting from harm to his reputation.

46In that regard, it should be stated that the inadmissibility of an action for annulment of a measure results in the inadmissibility of the application for damages where, as is evidently the case here, the two requests are closely linked (judgment of 14 September 2006, Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 51).

47Accordingly, the claims for compensation, in that they seek compensation for material and non-material damage resulting from the illegality of the contested decisions, must be rejected.

48In the light of the foregoing, the action must be dismissed as inadmissible in its entirety.

Costs

49Under Article 134 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.

50It is apparent from the grounds set out in the present order that the applicant has been unsuccessful. Furthermore, in its heads of claim, EIGE has expressly requested that the applicant be ordered to pay the costs. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by EIGE.

On those grounds,

hereby orders:

1.The action is dismissed as being inadmissible.

2.SD is ordered to bear his own costs and to pay those incurred by the European Institute for Gender Equality (EIGE).

Luxembourg, 27 February 2018.

Registrar

President

Language of the case: English.