QM v European Union Agency for Law Enforcement Cooperation (T-164/21)

Contents

Judgment of the General Court (Seventh Chamber)9 November 2022^note(Civil service — Members of the temporary staff — Non-renewal of a fixed-term contract for an indefinite period — Interest of the service — Error in law — Manifest error of assessment — Right to a hearing — Principle of sound administration — Duty to have regard for the interests of officials)In Case T‑164/21,QM, represented by N. de Montigny, lawyer,vEuropean Union Agency for Law Enforcement Cooperation (Europol), represented by A. Nunzi, O. Sajin and C. Falmagne, acting as Agents, and by A. Duron and D. Waelbroeck, lawyers,THE GENERAL COURT (Seventh Chamber),composed, at the time of the deliberations, of R. da Silva Passos, President, V. Valančius (Rapporteur) and M. Sampol Pucurull, Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure,further to the hearing on 22 June 2022,gives the following

JudgmentOnly the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.

1By his action based on Article 270 TFEU, the applicant, QM, seeks the annulment of the decision of the European Union Agency for Law Enforcement Cooperation (Europol) of 27 May 2020 not to renew his contract for an indefinite period (‘the contested decision’) and, to the extent necessary, annulment of the decision of 18 December 2020 rejecting his complaint (‘the decision rejecting the complaint’).

Background to the dispute…

10On 7 January 2020, the procedure for renewing the applicant’s contract by a contract for an indefinite period was commenced, in accordance with the rules applicable at Europol.…

18On 5 May 2020, the Executive Director, in her capacity as the authority authorised to conclude contracts of employment (‘the AACC’), informed the applicant of her intention not to renew his contract by a contract for an indefinite period, stating that, in order to reflect Europol’s strategy entitled ‘Europol Strategy 2020+’ and the responsibilities assigned to Europol in the context of the ‘EU Interoperability Agenda’, the future head of [confidential] department would have to have additional skills and competencies which he did not possess (‘the information letter of 5 May 2020’).

19On 12 May 2020, the applicant inserted, in Section 6 of the contract renewal form, his comments on the Executive Director’s intention not to renew his contract.

20On 27 May 2020, the AACC adopted the contested decision. By email of 2 June 2020, that decision was notified to the applicant.

21In the contested decision, the AACC stated that ‘reflecting on the Europol Strategy 2020+ and the Europol “programming documentation”, including the responsibilities assigned to Europol in the context of the EU Interoperability Agenda, which are implemented in gradual steps, the business need for a head of [confidential] department with additional expertise, by comparison to the profile of your current position, has however been identified’.…

Forms of order sought

25The applicant claims that the Court should:– annul the contested decision and, to the extent necessary, the decision rejecting the complaint;– order Europol to pay the costs.

26Europol contends that the Court should:– dismiss the action as unfounded;– order the applicant to pay the costs.

Law…

The heads of claim for annulment of the contested decision

41In support of his action for annulment, the applicant relies on five pleas in law, alleging: (i) errors committed by the AACC in the application of the criteria for assessing the candidate for renewal of the contract for an indefinite duration and a failure to take a decision on the reorganisation and definition of the new requirements of the post; (ii) an infringement of the right to be heard; (iii) prejudice as regards his ability to meet the future needs of the post, failure to examine his skills and infringement of the duty of sound administration and his legitimate right to be assessed; (iv) a manifest error of assessment as regards his profile and skills; and (v) misuse of rights and infringement of the duty to have regard for the interests of officials.…

First plea alleging errors committed by the AACC in the application of the criteria for assessing the candidate for renewal of a contract for an indefinite duration and a failure to take a decision on the reorganisation and definition of the new requirements of the post

72In the view of the applicant, under Article 4(3) of the decision of 28 March 2019, the words ‘foreseeable future developments’ referred to in that article relate to the continuing need for the post or duty and, therefore, exclusively to the first criterion. It is clear from the statement of reasons for the contested decision that it is based solely on the second criterion laid down in that provision, namely the staff member’s skills and competencies, which do not relate to foreseeable future developments.

73Thus, the applicant submits that, by requiring him to demonstrate new skills in the light of foreseeable future developments, the contested decision is in fact based on a reshaping of the post which he held, which had not been the subject of any decision on reorganisation, while the new needs of that post had not been defined at the time of the decision not to renew his contract.

74In that regard, first, relying on the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), the applicant claims that Europol could refer to future reorganisations in order to assess its interest in renewing or not renewing the contract of one of its staff members only if those reorganisations were foreseeable. Therefore, the Executive Director erred in deciding not to renew the applicant’s contract for an indefinite period on the ground that other skills were required to perform the tasks of the future head of [confidential] department, when the description of the duties attached to that job had not yet been amended.

75Secondly, the applicant claims that the contested decision does not specify the skills which will be necessary to fill the post of head of [confidential] department in the future. Furthermore, in his view, no document to which Europol refers defines the new competencies which the next head of [confidential] department is to possess.

76Thus, he considers that his skills and competencies should have been examined to establish whether he matched the profile of the post as it was now envisaged. Europol should have assessed the applicant’s competencies and skills on the basis of a process or test and not on the basis of the performance of the current profile of the post.

77The applicant maintains, moreover, that he had demonstrated that he had the skills and competencies now sought or, at the very least, that he had been able to demonstrate throughout his career that he was perfectly capable of adapting his profile to his competencies and vice versa.

78The applicant also submits that the vacancy notice published on [confidential] contained the description of a post similar to the one which he held. In this respect, he maintains that, when he was in post, his job description had never changed despite the adaptation of his duties.

79Thirdly, the applicant complains that the post of head of [confidential] department has been classified as a ‘restricted’ post. He submits that this change cannot reasonably be relied on against him since a change in the type of post during the performance of duties cannot be detrimental to the staff member holding the post in question. That change, which entailed an obligation to rotate members of the temporary staff, had the effect of preventing the applicant from applying for the post because of the three-year waiting period.

80Fourthly, the applicant alleges inequality of treatment and an infringement of Article 27 of the Staff Regulations. He submits that the person engaged in [confidential] as head of [confidential] department had no additional skills by comparison with his and that that person’s profile is similar to his. The only difference between that person and the applicant is that of nationality. The applicant adds that the selection of a [confidential] member of staff for the post of head of [confidential] department in which two heads of unit are also [confidential] undermines the balance of nationalities among officials and staff members and the principle laid down in Article 27 of the Staff Regulations.

81Europol disputes the applicant’s arguments.

82In that regard, it should be noted, as a preliminary point, that, according to settled case-law, the possibility of renewing the contract of a member of the temporary staff is merely an option left to the discretion of the competent authority since 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 interest of the service (see judgment of 10 October 2014, EMA v BU, T‑444/13 P, EU:T:2014:865, paragraph 28 and the case-law cited).

83This case-law is all the more relevant when it comes to replacing a fixed-term contract by a contract for an indefinite period, which creates a more stable link with no time limits between the institution and the staff member concerned (judgment of 26 January 2022, MN v Europol, T‑586/20, not published, EU:T:2022:24, paragraph 34).

84The organisation and operation of a service are matters for the institution alone, and the hierarchical authority is solely responsible for the organisation of the service. It is for that authority alone to assess the needs of the service, and to assign the personnel available to it in accordance with that assessment (see judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 104 and the case-law cited).

85Thus, the EU institutions and agencies also have the freedom to structure their administrative units taking account of a series of factors such as the nature and scale of the tasks assigned to them and the budgetary possibilities. That freedom involves both the freedom to abolish posts and to change the allocation of tasks in the interests of more efficient work organisation or in response to budgetary requirements to abolish posts imposed by the EU’s political authorities, and the power to reassign tasks previously carried out by the holder of the post abolished, without the abolition of that post necessarily being subject to the condition that all the tasks imposed must be performed by fewer people than before the reorganisation (see judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 105 and the case-law cited).

86Furthermore, by contrast with officials, whose security of tenure is guaranteed by the Staff Regulations, members of the temporary staff are subject to different conditions based on the contract of employment entered into with the institution concerned. It is clear from Article 47(1)(b) of the CEOS that the duration of the employment relationship between an institution and a member of the temporary staff engaged for a fixed period is, necessarily, governed by the conditions laid down in the contract concluded between the parties (judgment of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraph 46).

87However, it should be noted that when the administration has adopted, by an internal directive, a special system designed in particular to ensure transparency in the procedures for renewing contracts and the correct application of certain procedural conditions, the adoption of that system is tantamount to a voluntary curb on the institution’s discretion, from which the administration may not depart without setting out clearly the reasons which may justify that change, since otherwise the principle of equal treatment would be infringed (judgment of 26 September 2017, Hanschmann v Europol, T‑562/16, not published, EU:T:2017:664, paragraph 67).

88In the present case, in the first place, it should be noted that the decision of 28 March 2019, which sets out Europol’s general policy on the renewal of contracts, constitutes an internal directive within the meaning of the case-law cited in paragraph 87 above. The effect of that decision is to establish a special system which makes the renewal of contracts for an indefinite period subject to three cumulative conditions.

89In this respect, it should be recalled that, under Article 4(3) of the decision of 28 March 2019, the renewal of the contract for an indefinite period of time is subject to three criteria, namely, first, the continuing need for the post or duty, including in the light of foreseeable future developments, secondly, the skills and competencies of the staff member and their relevance to the post held or duty performed, and, thirdly, the consistently high performance of the staff member concerned.

90In the present case, it is clear, in essence, from the contested decision that whilst the continuing need for the post and the applicant’s consistently high performance are not contested, his skills and competencies and their relevance to the post held are at issue in the light of foreseeable future developments.

91Thus, in the present case, Europol applied the first two criteria, that is to say, on the one hand, the continuing need for the post and duty in the light of foreseeable future developments, and, on the other hand, the skills and competencies of the staff member and their relevance to the duty performed, and found a mismatch between the applicant’s skills and competencies and foreseeable future developments concerning [confidential].

92It is necessary to examine whether such an application, as contested by the applicant, is, as he essentially argues, unjustified and inconsistent.

93First, it should be considered that, in the interest of the service, Europol had to assess, in a responsible manner, future changes and foreseeable developments before taking the decision on the renewal of the contract.

94In the present case, on the one hand, having regard to the numerous strategic programming documents relating to its activity, Europol considered that the [confidential] department should carry out operational activities and no longer merely activities in support of the operational activities of the other departments, and therefore the head of [confidential] department had to possess additional competencies.

95On the other hand, having assessed the applicant’s skills and competencies with regard to his personal file and the comments which he submitted in the contract renewal procedure, Europol considered that they did not match future developments concerning [confidential].

96Secondly, if, as the applicant maintains, the criteria laid down in Article 4(3) of the decision of 28 March 2019 were to be applied in a completely autonomous manner, such application could lead to a situation where Europol had to renew the contract of a staff member even though his or her skills did not meet to the reasonably foreseeable future requirements of the post held, which would be manifestly contrary to the interests of the service and the purpose of the procedure laid down in that article.

97Thus, in the light of those remarks, and taking into account the broad discretion which the AACC has with regard to the renewal of fixed-term contracts by contracts of indefinite duration, it does not appear that Europol can be accused of having erred in law in applying the criteria for assessing the candidate for renewal of the contract.

98In the second place, as is clear from the contested decision, it is not based on a future reorganisation of the agency, but on the fact that the applicant’s skills and competencies did not meet the profile of the post in the light of the future and foreseeable developments thereof.

99The post of head of [confidential] department has been maintained in the Europol organisation chart, but the needs of the post matching new competencies have been redefined so that the post requires additional competencies, without however being subject to abolition or reorganisation.

100Consequently, the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), by which the decision not to renew a staff member’s contract was annulled on the grounds that the decision was based on a future reorganisation, when no concrete decision had been taken in this respect, cannot apply in the present case.

101In the third place, as regards the argument that the contested decision does not specify the skills necessary to hold the post of head of [confidential] department in the future, it should be recalled that, in the contested decision, the AACC specified that [confidential] are critical skills and that the ‘ability to drive [confidential] will be paramount for the Head of [confidential] Department’.

102Furthermore, it is apparent from various documents in the file, both of a strategic nature, such as the Europol Strategy 2020+, and of a programming nature, specifically Europol’s programming documentation and, in particular, that for the period 2020-2022, including the responsibilities assigned to Europol under the EU Interoperability Agenda, to which the applicant, in his capacity as head of [confidential] department, contributed and of which he could not have been unaware, that discussions on those future needs concerning [confidential] were opened in 2019.

103In that context, the contested decision, and the clarifications provided in the information letter of 5 May 2020 and the documents available to the applicant, such as the Europol Strategy 2020+, the Europol Interoperability Roadmap, the Europol Programming Document 2020-2022, the draft Programming Document 2021-2023, Europol’s report to external stakeholders, Europol’s EU Interoperability Plan and Europol’s reports on the implementation of the Europol Strategy 2020+, necessarily allowed him to understand the skills and competencies required for the post of head of [confidential] department.

104As to the claim that Europol should have assessed the applicant’s competencies and skills on the basis of a process or a test, it should be noted that no such test is provided for in the decision of 28 March 2018 which sets out the procedure for the renewal of contracts. A staff member’s competencies and skills are examined by the executive director having regard to the results attained by the staff member, his or her personal file, including his or her curriculum vitae and the comments submitted in the renewal procedure, which the AACC followed in this case. The conduct of an additional procedure, in the form of a test or an interview, as requested by the applicant, would have run counter to the terms of the decision of 28 March 2018 and possibly entailed an infringement of the principle of equal treatment.

105In the fourth place, as regards the classification of the post of head of [confidential] department as a ‘restricted’ post, it is sufficient to note that that change, in the present case, took place after the adoption of the contested decision and cannot, therefore, have any bearing on its lawfulness. Consequently, whether or not that change could be relied on against the applicant is irrelevant.

106In the fifth place, as regards the complaint that the person newly recruited as head of [confidential] department did not have additional skills by comparison with those of the applicant, it should be noted that those claims are based on his personal perception of publicly available information. However, as Europol maintains, such information cannot replace an application in a selection procedure.

107As regards the applicant’s claim that the appointment of a [confidential] member of staff to the post of head of [confidential] department in which two other heads of unit are also [confidential] infringes Article 27 of the Staff Regulations, it must be stated that the successful candidate for the post of head of [confidential] department is of [confidential] nationality, whilst two other heads of unit are of [confidential] nationality.

108Thus, in the absence of other evidence, it does not appear that, by appointing as head of [confidential] department a [confidential] staff member of [confidential] nationality, whereas two heads of unit in that department are of [confidential] nationality, Europol infringed Article 27 of the Staff Regulations, which requires, inter alia, that the EU agencies recruit their staff on the broadest possible geographical basis from among the nationals of the Member States of the European Union and prohibits them from reserving posts for the nationals of any specific Member State.

109It follows from all of the foregoing that the first plea must be rejected.

Fourth plea alleging a manifest error of assessment

110In the fourth plea, the applicant submits that his professional experience, skills and capability to adapt as required demonstrate that he possesses the qualities required to hold the post of head of [confidential] department and that the Executive Director therefore committed a manifest error of assessment as to his ability to perform his tasks in the light of future and foreseeable developments in the post of head of [confidential] department.

111In addition, the applicant points out that he was not aware of the organisation’s new needs as the competencies required were not part of the requirements or descriptions of the available post.

112In any event, the applicant was not treated in the same way as the other candidates for the post of head of [confidential] department as regards the manner in which his skills were assessed.

113Europol contests the applicant’s arguments.

114As a preliminary point, it should be noted that, even though the administration has a broad discretion in renewing a fixed-term contract as a contract of indefinite duration, as is apparent from paragraphs 82 and 83 above, the Court, when it has before it an action for annulment directed against an act adopted in the exercise of such that discretion, nonetheless carries out a review of legality, which manifests itself in a number of respects. As regards a request for annulment of a decision not to renew the contract of a member of the temporary staff, which constitutes an act adversely affecting the person concerned, the review undertaken by the Courts of the European Union must be confined to ascertaining that there was no error in law, manifest error in the assessment of the interests of the service which may have provided grounds for that decision, or misuse of powers, or prejudice to the duty to have regard for the interests of officials which is incumbent on an administration when it is called upon to decide on the renewal of a contract between itself and one of its staff. In addition, the Court examines whether the administration has committed any procedural irregularities or substantive inaccuracies (see, to that effect, judgment of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraph 47).

115Furthermore, an error is manifest solely where it is easily recognisable and can be readily detected, in the light of the criteria to which the exercise of decision-making power is subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the challenged assessment may be accepted as being still true or valid (see judgment of 15 December 2021, HB v EIB, T‑689/20, not published, EU:T:2021:891, paragraph 37 and the case-law cited).

116It is in the light of the foregoing considerations that the Court must examine the arguments put forward by the applicant in support of the fourth plea.

117In the present case, the contested decision is based on the ground that the applicant’s skills and competencies did not meet Europol’s needs for the post of head of [confidential] department in the light of foreseeable future developments.

118In the first place, as regards the applicant’s argument that his results, experience and capability to adapt demonstrate that he had the skills and competencies required for the post of head of [confidential] department, it should be noted that Europol does not dispute the applicant’s high performance or his capability to adapt. The reason justifying the non-renewal of the applicant’s contract is that his profile does not match Europol’s future needs, namely with regard to a capacity now required [confidential]. It is therefore evident that new needs and areas of expertise have been identified and that, in Europol’s view, the applicant’s competencies are not sufficient to meet them.

119Although the applicant claims to have the newly identified competencies and skills, he still fails to specify those competencies and thus demonstrate that his experience at Europol or his previous experience could meet Europol’s need for a person with the capacity to [confidential] and also [confidential].

120Furthermore, although the applicant submits that the description of the post in the vacancy notice published on 7 January 2021 did not include any additional competency in relation to his duties, the Court notes that, following the non-renewal of the applicant’s contract, Europol published a vacancy notice for the post of head of [confidential] department, in which a number of tasks did not form part of the applicant’s duties, including those of [confidential].

121It follows that the tasks entrusted to the applicant at Europol did not match the future and foreseeable requirements of the post of head of [confidential] department, and that the applicant has failed to establish a manifest error of assessment on the part of Europol as to the fact that he did not have the competencies necessary to hold that post in the future, under a contract of indefinite duration.

122In the second place, as regards the applicant’s arguments that he was not aware of the organisation’s new needs, reference must be made to the assessment of the first and second pleas, noting that future developments concerning information and communication technologies were clearly identified in numerous strategic documents in the drafting of which the applicant was involved and on which he had an opportunity to submit his observations on two occasions in the renewal procedure and to describe those of his skills which had not been included in his personal file.

123In the light of the foregoing, the applicant fails to submit sufficient evidence to render implausible the assessments made by Europol as to the mismatch of his profile to the new needs of the service, in accordance with the case-law cited in paragraph 115 above.

124Consequently, it is not evident from the file that Europol committed a manifest error of assessment in considering that the applicant did not have the skills and competencies appropriate to match its new needs. Therefore, the applicant’s fourth plea must be rejected.…

Operative part

On those grounds,THE GENERAL COURT (Seventh Chamber)hereby:

1.Dismisses the action;

2.Orders QM to pay the costs.

Delivered in open court in Luxembourg on 9 November 2022.