Van Walle v ECDC (Civil service - Decision not to renew a contract - Judgment) [2022] EUECJ T-83/21 (12 October 2022)

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(Civil service – Members of the temporary staff – ECDC staff members – Decision not to renew a contract – Manifest error of assessment – Misuse of powers – Duty to have regard for the welfare of officials – Right to be heard – Action for annulment and for damages)

Ivo Van Walle, residing in Järfälla (Sweden), represented by L. Levi and A. Champetier, lawyers,

European Centre for Disease Prevention and Control (ECDC), represented by J. Mannheim, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,

composed, at the time of the deliberations, of S. Gervasoni (Rapporteur), President, P. Nihoul and J. Martín y Pérez de Nanclares, Judges,

1 By his action based on Article 270 TFEU, the applicant, Mr Ivo Van Walle, seeks, in the first place, annulment of the decision of the European Centre for Disease Prevention and Control (ECDC) of 30 March 2020 not to renew his contract as a member of the temporary staff; in the second place, principally, an order that ECDC pay him retroactively the net salary of which he was deprived between the non-renewal of his contract and the date of his reinstatement and, in the alternative, an order that ECDC compensate him for the material damage that he allegedly suffered; and, in the third place, compensation for the non-material damage that he allegedly suffered following the decision not to renew his contract.

2 The applicant was recruited on 1 November 2010 by ECDC as a member of the temporary staff to a position of Expert Public Health Bioinformatics. On 23 March 2015, his contract was extended until 31 October 2020. At the end of that period, any further renewal was to lead to the signing of a contract of indefinite duration.

3 By letter of 4 December 2019, the applicant was informed that, in the context of the new organisation of ECDC to be implemented with effect from 1 January 2020, his position was to be retained within its structure.

4 On 11 February 2020, the matter of the renewal of the applicant’s contract was considered at a meeting of the Director Consultation Group which took place in the presence of the applicant’s head of section and head of unit. The Director Consultation Group came to the conclusion that the applicant’s profile no longer met the needs of ECDC and that his performance was unsatisfactory, with the result that it gave a negative opinion on the renewal of his contract.

5 On 20 February 2020, the applicant’s head of section and head of unit informed him of the negative opinion given by the Director Consultation Group regarding the renewal of his contract. By email of 25 February 2020, the head of unit informed the applicant of the grounds on which that negative opinion was based.

6 On 9 March 2020, the Director of ECDC had a meeting with the applicant to discuss the issue of the renewal of his contract. On 12 March 2020, the applicant sent an email to the Director of ECDC in which he set out his arguments in favour of the renewal of his contract. On 30 March 2020, the Director of ECDC sent an email to the applicant informing him of the decision not to renew his contract (‘the contested decision’) because, first, his profile did not meet the new needs of ECDC and, secondly, his performance was unsatisfactory.

7 On 24 June 2020, the applicant lodged a complaint against that decision. By decision of 26 October 2020, the complaint was rejected by ECDC (‘the decision rejecting the complaint’).

8 On 17 July 2020, ECDC published a vacancy notice for a position of Expert Microbiology (‘the vacancy notice’) for which the applicant applied on 28 August 2020.

9 By email of 16 September 2020, the applicant was informed that his application had been unsuccessful. The applicant therefore sent an email to the selection committee requesting more information to which ECDC replied by email of 28 September 2020. The vacancy notice for the position of Expert Microbiology and the decision rejecting his application were the subject of a complaint by the applicant.

– order ECDC to pay him his net salary retroactively for the period between 31 October 2020 and the date of his reinstatement and, in the alternative, to pay him the sum of EUR 30 000 in respect of the material damage which he claims to have suffered;

– order ECDC to pay him the sum of EUR 20 000 in respect of his non-material damage;

12 The applicant seeks, inter alia, annulment of the contested decision not to renew his contract as a member of the temporary staff and annulment of the decision rejecting the complaint.

13 In that regard, it should be borne in mind that, according to settled case-law, a claim for annulment formally directed against a decision rejecting a complaint has the effect, where that decision lacks any independent content, of bringing before the Court the act against which the complaint was submitted (see, to that effect, judgments of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8, and of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 43).

14 In the present case, the decision rejecting the complaint lacks any independent content, since it merely confirms the contested decision and sets out its reasoning by responding to the applicant’s criticisms of that decision.

15 The claims for annulment must therefore be regarded as being directed solely against the contested decision, the legality of which must, however, be examined taking into account the statement of reasons contained in the decision rejecting the complaint, which is deemed to be the same as that of the contested decision (see, to that effect, judgments of 9 December 2009, Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paragraphs 58 and 59, and of 13 December 2018, CH v Parliament, T‑83/18, EU:T:2018:935, paragraph 57).

16 In support of his claims, the applicant relies on four pleas, alleging, first, manifest errors of assessment, secondly, misuse of powers, thirdly, breach of the duty of care, and, fourthly, breach of the right to be heard.

17 It is appropriate to examine, in the first place, the fourth plea, alleging breach of the right to be heard, which relates to the formal legality of the contested decision, before examining, in the second place, the other pleas raised by the applicant.

18 First, the applicant complains that ECDC failed to give him access to the substance of the complaints raised against him by his colleagues. The decisive nature of those informal complaints is proved by the fact that they were mentioned during the meeting on 11 February 2020 and that the email of 25 February 2020 referred to the effects of the applicant’s alleged behaviour on the rest of his team.

19 Secondly, the applicant complains that ECDC failed to provide him with the minutes of the Director Consultation Group meeting, at the end of which the proposal not to renew his contract was forwarded to the Director. The applicant argues that the part of those minutes that was provided by ECDC is limited to the final proposal not to renew his contract, and does not mention the matters discussed at the meeting or the reasons justifying such a proposal. However, those matters were decisive for the proposal put forward by the Director Consultation Group and for the decision not to renew his contract, so that, by refusing to give him access to such grounds, ECDC infringed his rights of defence and his right to be heard.

20 Thirdly, the applicant notes that the title of the newly created position, which justified part of the contested decision, was changed without him having the opportunity to comment on that change.

21 Therefore, the applicant argues that, although he submitted his comments to ECDC on several occasions, he did not possess all the relevant information to ensure that his right to be heard was effective.

23 The right to be heard, enshrined in Article 41(2) of the Charter of Fundamental Rights of the European Union under the heading of the right to good administration, must apply in all proceedings which are liable to culminate in a measure adversely affecting a person even where the applicable legislation does not expressly provide for such a procedural requirement (see judgment of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraphs 22 and 23 and the case-law cited). The right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (see judgments of 4 April 2019, OZ v EIB, C‑558/17 P, EU:C:2019:289, paragraph 53 and the case-law cited, and of 10 January 2019, RY v Commission, T‑160/17, EU:T:2019:1, paragraph 24 and the case-law cited).

24 Such a decision not to renew a contract of service which indisputably affects the administrative situation of the person concerned can be taken only after the person concerned has been given the opportunity to put forward his or her view concerning the draft decision, in the context of an oral and/or written exchange of views initiated by the competent authority, proof of which must be adduced by the latter (see, to that effect, judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 154 and the case-law cited).

25 In the present case, first, as regards the applicant’s argument relating to the complaints that his colleagues allegedly raised informally, although the email of 25 February 2020 states that ‘this situation has put enormous pressure not only on [the applicant] but also on the other team members’, but that, ‘however, [the applicant did] not seem to realise the effect this [had] on the team’, that email does not refer to complaints raised by the applicant’s colleagues. Furthermore, the applicant has adduced no evidence that such complaints were actually mentioned at the meeting on 20 February 2020. Therefore, there is nothing in the file to show that such complaints formed the basis of the decision not to renew his contract.

26 Secondly, as regards the lack of access to the minutes of the Director Consultation Group meeting, although the document produced by ECDC as an annex to its pleadings is limited to a checked checkbox indicating the choice of the Director Consultation Group to propose that the contract not be renewed, the applicant was also an addressee of the email of 25 February 2020. That email expressly states that it ‘[informs the applicant] of the outcome of the discussions in the [Director Consultation Group] regarding the renewal of [his] contract’ and that ‘the proposal [of one of his managers] and the other [members of the Director Consultation Group] is not to renew the current contract’. In addition to informing the applicant of the outcome of the proposal put forward by the Director Consultation Group, the email goes on to set out at length the reasons justifying that proposal, namely the unsuitability of the applicant’s profile for the organisational needs and strategic priorities and the inadequate level of the applicant’s performance.

27 The applicant was therefore notified of the outcome of the discussions of the Director Consultation Group and of the information mentioned in this regard in the email of 25 February 2020. In addition, it must be borne in mind that the applicant had a meeting on 9 March 2020 with the Director of ECDC regarding the renewal of his contract. He thus had the information to enable him to ascertain why ECDC intended not to renew his contract and was therefore given the opportunity to exercise, on the same basis, his right to be heard before the adoption of the contested decision.

28 Thirdly, as regards the change in the title of the newly created position, although it is true that that position was initially presented as a position of ‘Expert Public Health Microbiology’ and that the vacancy notice distributed by ECDC relates more broadly to a position of ‘Expert Microbiology’, that change did not affect the applicant’s right to be heard.

29 The vacancy notice accurately reflects ECDC’s new needs, as set out to the applicant in the email of 25 February 2020 and in the contested decision. Furthermore, the selection criteria laid down in the vacancy notice correspond to those on which the applicant had the opportunity to be heard, namely the academic background and professional experience related to the position concerned.

30 It follows from the foregoing that the present complaint must be rejected, as must, therefore, the fourth plea.

31 The first plea, alleging manifest errors of assessment, consists, in essence, of two parts. The first concerns the suitability of the applicant’s profile for the new needs of ECDC and the second concerns the applicant’s inadequate performance.

32 As a preliminary point, it should be borne in mind that, according to settled case-law, the renewal of a contract of a member of the temporary staff is merely a possibility left to the discretion of the competent authority, the institutions having a wide discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks on condition that the staff are assigned in the interest of the service (judgments of 21 May 2014, Commission v Macchia, T‑368/12 P, EU:T:2014:266, paragraph 49, and of 10 October 2014, EMA v BU, T‑444/13 P, EU:T:2014:865, paragraph 28). That case-law appears to be all the more relevant where a fixed-term contract is replaced by a contract of indefinite duration, which creates a more stable relationship without any time limit 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).

33 In that regard, it should be noted that, although the administration has a wide discretion, the Court, in an action for annulment of an act adopted in the exercise of such discretion, nevertheless undertakes a review of legality, which has a number of aspects. As regards the application for annulment of a decision not to renew the contract of a member of the temporary staff, which constitutes an act adversely affecting the staff member concerned, review by the EU Courts must be limited to ascertaining that there has been no error of law, manifest error of assessment in the evaluation of the interest of the service that may have formed the basis of that decision or misuse of powers (see, to that effect, judgment of 19 February 2013, BB v Commission, F‑17/11, EU:F:2013:14, paragraph 59 and the case-law cited). Furthermore, the Court reviews whether the administration committed procedural irregularities or material inaccuracies (see, to that effect, judgment of 13 December 2018, Wahlström v Frontex, T‑591/16, not published, EU:T:2018:938, paragraph 47).

34 Furthermore, 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. In order to establish that the administration has made a manifest error in assessing the facts, of such a kind as to justify the annulment of a decision taken on the basis of that assessment, 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 based on manifest error must be rejected if, despite the evidence produced by the applicant, the assessment in question can still be regarded as justified and coherent (see, to that effect judgments of 21 December 2021, KS v Frontex, T‑409/20, not published, EU:T:2021:914, paragraph 102 and the case-law cited, and of 28 June 2016, Lorenzet v EASA, F‑144/15, EU:F:2016:139, paragraph 91 and the case-law cited).

35 It is in the light of the foregoing considerations that it is appropriate to examine the arguments put forward by the applicant in support of his first plea.

36 It is apparent from the contested decision and from the decision rejecting the complaint that they are based on two grounds, the first relating to the unsuitability of the applicant’s profile for the new needs of ECDC and the second relating to the applicant’s unsatisfactory performance.

(a) The first part, concerning the suitability of the applicant’s profile for the new needs of ECDC

37 In support of the first part of the first plea, the applicant submits that ECDC made a manifest error of assessment in concluding that his profile did not meet the new needs of the service. He raises two complaints, alleging manifest errors of assessment on the part of ECDC as regards, first, his professional experience and, secondly, his academic profile.

38 It follows from the contested decision and from the decision rejecting the complaint that the change in ECDC’s strategic priorities has resulted in the need to create the position Expert Microbiology in order to have ‘more operational microbiology and molecular surveillance expertise to support the disease programmes and drive the implementation of the strategic framework for the integration of molecular and genomic typing into EU surveillance and multi-country outbreak investigations’. Those new needs of ECDC also mean that the jobholder must have ‘a deep understanding of how microbiology works at [Member-State] level and have the ability to translate different signals and triggers into public health recommendations that lead to action in the Member States’ and ‘equal understanding of the pathogen, the disease, the laboratories, the integration of this data with routine epidemiological data collected, as well as the epidemiological situation or nature of a specific outbreak’.

39 Part of the arguments raised by the applicant in the present action concern the selection criteria laid down in the vacancy notice relating to the newly created position. However, in so far as they seek to challenge the legality of those selection criteria, those arguments are ineffective, since they concern a procedure different from that of the renewal of his contract, the decision rejecting the applicant’s application being subsequent to the adoption of the contested decision and not constituting the basis of that decision. At the hearing, the applicant admitted that his arguments relating to the selection criteria laid down in the vacancy notice were, to that extent, ineffective, a point which was noted in the minutes of the hearing.

40 However, in so far as those arguments may be regarded as seeking to establish that the applicant’s profile met the new needs of ECDC, as reflected in the vacancy notice relating to the newly created position, and that, consequently, the first ground of the contested decision is, as the applicant argues, manifestly incorrect, those arguments are admissible and effective and it is therefore appropriate to examine them in the context of the present action.

41 Regarding professional experience corresponding to the new needs of the service and required for the newly created position, in the first place, the applicant states that he has experience within an undertaking specialising in hepatitis C, tuberculosis and HIV which operated a certified clinical microbiology laboratory that performed tests.

42 However, although the applicant states that he worked for an undertaking operating a clinical microbiology laboratory, he fails to specify the position that he held within that undertaking and, therefore, to demonstrate that he held a position related to microbiology in order to meet the need of ECDC to have a person with ‘experience working at a national reference laboratory or similar’ or ‘experience of a clinical and public health microbiologist working in the public health sector of a Member State’.

43 Furthermore, it is apparent from the applicant’s curriculum vitae that, within the specialised undertaking referred to above, the applicant used ‘various bioinformatics tools to perform analysis, visualisation, and interpretation of [Whole Genome Sequencing] data’ and that he was ‘responsible for [the] surveillance database’ of patients with HIV.

44 It follows from the foregoing that the tasks performed by the applicant within that specialised undertaking related more to bioinformatics than to experience of a clinical and public health microbiologist. Therefore, ECDC did not make a manifest error of assessment in taking the view that the applicant did not have the professional experience required for the position newly created for the purpose of meeting the new needs of ECDC.

45 In the second place, the applicant submits that he has the experience required for the new needs of the service as a result of the work that he performed for the Disease Programme Unit before ECDC requested that he focus on other strategic activities. The applicant adds that, in order to ground the decision not to renew his contract, it cannot be alleged that he lacked experience in that field when it is ECDC itself which had him focus on other tasks.

46 In that regard, ECDC contends in its defence that, although the applicant did in fact support the Disease Programme Unit in setting up protocols, that assistance was limited to technical assistance on data processes and IT systems. It must be stated that the applicant has not disputed that claim.

47 Therefore, the applicant’s argument based on the work carried out for the Disease Programme Unit does not make it possible to call into question his lack of experience and knowledge of microbiology which ECDC considers necessary for the new needs of the service. Furthermore, since the tasks performed by the applicant within that unit were limited to tasks related to bioinformatics, the applicant’s focus on other units cannot have had an impact on his level of experience for the position created for the new needs of ECDC.

48 In the third place, the applicant states that he has knowledge of surveillance protocols, since he played a major role in harmonising ECDC’s surveillance outputs, including through analysis plans. He submits that he also participated in an expert panel providing guidance to Member States on the usefulness of certain microbiological techniques that make it possible to improve surveillance. In addition, the applicant argues that, although he was attached to the Surveillance Section of the Surveillance and Response Support Unit, it is the tasks that he carried out which must prevail. In that regard, the applicant requested, at a meeting on 13 November 2019, that his job title be changed to Expert Applied Molecular Epidemiology, a request which he claims was not opposed by his line manager, as attested to, as he claims, by a member of the staff committee. Thus, the tasks that the applicant performed for ECDC no longer matched, in his view, his job title, rather they corresponded more to the new needs of ECDC.

49 As regards the taking into account of the applicant’s knowledge, in the decision rejecting the complaint, ECDC took the view that ‘[the applicant had] expertise and work experience in data management and bioinformatics’ and that ‘bioinformatics [would] be a tool used in delivering the objectives of the new role, but only one of many’. The decision rejecting the complaint continues: ‘It is not denied that [the applicant] would have knowledge of some elements related to the tasks to be performed by the new role[;] however, … this knowledge will not be sufficient to independently carry out the tasks assigned to the new role.’ Thus, it follows from that decision that it is precisely as a result of taking into account the applicant’s knowledge that ECDC came to the conclusion that that knowledge, while it did exist, was not sufficient for the new needs of ECDC.

50 As regards the mismatch between the tasks performed by the applicant and the new needs of ECDC, the applicant’s job title is irrelevant in that regard. It is apparent from the contested decision and from the decision rejecting the complaint that, in order to come to the decision not to renew the applicant’s contract, ECDC did not, contrary to what is argued by the person concerned, take into consideration his job title, but the tasks that he performed. In the decision rejecting the complaint, ECDC noted that ‘one of the envisaged tasks of the new role [would] be to define protocols and disease specific integrated surveillance’ and that, ‘in his current role, [the applicant had] indeed been involved from a technical perspective in setting up protocols’, but that, ‘however, for the new role, ECDC [was] looking for experience in setting up surveillance protocols and analysis plans including microbiology and epidemiological components’. It is therefore indeed in the light of the tasks that the applicant performed, and not on the basis of his job title, that ECDC came to the conclusion that his contract should not be renewed.

51 In the fourth place, the applicant refers to numerous tasks carried out – such as presentations or participation in science watches – which, as he argues, prove his competence in microbiology and his level of expertise, in particular on COVID-19. In addition, the applicant lists the many publications to which he has contributed. In the applicant’s view, all of those tasks, which were carried out at the request of ECDC, are such as to prove that he is an expert in microbiology. The applicant opposes ECDC’s argument that the work in question was performed only after he had become aware of the non-renewal of his contract and with the sole intention of demonstrating his expertise in microbiology.

52 As regards the work carried out by the applicant within ECDC, it should be noted that, although the applicant submits lengthy annexes listing his contributions in 2020 to several projects such as publications and presentations, the evidence adduced by him does not prove that ECDC was, as he argues, mistaken in its assessment of his level of expertise in microbiology.

53 Although those annexes prove that the applicant actually worked on projects focused on microbiology, they do not prove that his contribution went beyond his expertise in bioinformatics.

54 In that regard, first, it is apparent from the annexes that the applicant’s contribution to the various projects was always accompanied and supplemented by the contribution of other colleagues, including line managers, from various departments. Secondly, the annexes are not such as to prove that the applicant’s contributions were of a level required for an expert in microbiology, so that it would follow that ECDC made a manifest error in taking the view that the applicant did not have the necessary expertise for the position of Expert Microbiology that was created in order to meet its new needs.

55 In the light of the foregoing, the applicant does not adduce sufficient evidence to render implausible the assessments made by ECDC as regards the unsuitability of his profile for the new needs of the service, in accordance with the case-law cited in paragraph 34 above.

56 In the fifth place, the applicant submits that in 2017 he was placed on the reserve list for an AD 8 position, the qualifications required for which and the tasks associated with which corresponded exactly to the position created for the new needs of ECDC. Therefore, having taken the view in 2017 that the applicant met the profile sought, ECDC made a manifest error in its assessment of the applicant’s profile for the newly created position.

57 It is apparent from reading the vacancy notice for the grade AD 8 position for which the applicant was placed on the reserve list that a more central place is given to bioinformatics. This follows from the definition of the tasks, the first described being to ‘lead the implementation of the ECDC … operational model by driving the application of translational bioinformatics tools’, but also from the qualification required, namely a ‘university degree within the field of bioinformatics, microbiology, epidemiology, biosciences or another related area’.

58 Thus, while the position for which the applicant was placed on the reserve list was more focused on bioinformatics, the contested decision states, on the contrary, that although bioinformatics will be one of the tools used in carrying out the tasks related to the new needs of ECDC, in-depth knowledge of microbiology will be required.

59 Therefore, the applicant’s argument based on his placement on the reserve list referred to above is not capable of proving that his profile corresponded to the new needs of ECDC and thus of rendering the assessment made by the latter implausible, in accordance with the case-law cited in paragraph 34 above.

60 In the last place, the applicant submits that the selection criteria defined using the word ‘preferably’ in the vacancy notice for the newly created position were applied to him as ‘essential requisites’ when the renewal of his contract was considered. Furthermore, the applicant disputes the relevance of the selection criteria drawn up to meet the new needs of ECDC, in particular the criterion of experience within a national public health laboratory, since ECDC does not itself have a microbiology laboratory and it follows from that criterion that greater importance is attached to professional experience than to actual competence.

61 As regards the relevance of the criteria drawn up to meet the new needs of ECDC, in accordance with the case-law cited in paragraph 32 above, the renewal of the contract of a member of the temporary staff is merely a possibility left to the discretion of the competent authority, the institutions having a wide discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks on condition that the staff are assigned in the interest of the service. Therefore, as noted in paragraph 33 above, as far as concerns the non-renewal of the contract of a member of the temporary staff, review by the EU Courts must be limited, inter alia, to ascertaining that there has been no manifest error of assessment in the evaluation of the interests of the service.

62 In the present case, although the applicant disputes the relevance of all the criteria mentioned by ECDC in the contested decision, which are laid down in the vacancy notice, he criticises, more particularly, the criterion of experience within a national public health laboratory.

63 In the contested decision and in the decision rejecting the complaint, ECDC stated that its priorities had changed and henceforth required, as noted in paragraph 38 above, more operational microbiology and molecular surveillance expertise to support its disease programmes and drive the implementation of its strategic framework for the integration of molecular and genomic typing into EU surveillance and multi-country outbreak investigations.

64 In those decisions, ECDC added that, in order to meet those new priorities, the potential jobholder should have in-depth knowledge of how microbiology works at Member-State level and have the ability to translate different signals and triggers into public health recommendations that lead to action in the Member States.

65 Thus, the criteria mentioned in the contested decision, in particular the criterion of experience within a national public health laboratory – the choice of such criteria being subject to the wide discretion of ECDC – are commensurate with the new priorities of ECDC. The applicant has not adduced sufficient evidence to render implausible the choice to apply such criteria, in accordance with the case-law cited in paragraph 34 above.

66 As regards the importance attached to the criterion of experience within a national public health laboratory in the matter of the renewal of the applicant’s contract, it should be noted that, in the contested decision, it is stated that ‘[ECDC’s new needs] require a microbiology background and experience working at a national reference laboratory or similar’. Therefore, the level of importance which ECDC intended to attach to that criterion is not apparent from that wording.

67 As regards the decision rejecting the complaint, it does in fact state that ‘having a microbiology background and work experience in a national public health setting in a Member State (including laboratory experience) are essential requisites for the new position’. Nevertheless, it should be noted that that statement, first, is made in the detailed description of the new objectives of ECDC and of the requirements sought for the purpose of meeting those objectives and, secondly, constitutes additional reasoning provided by ECDC in response to the applicant’s criticisms of the contested decision. Furthermore, no contradiction is identified between ECDC’s new needs set out in the contested decision and the vacancy notice.

68 The criterion of professional experience within a national public health laboratory therefore, admittedly, occupies an important place in the assessment of the suitability of the applicant’s profile for the new needs of ECDC. However, that criterion is only one of those taken into consideration in the contested decision. It follows from paragraph 44 above that, in any event, the applicant did not have the professional experience required for the newly created position, since he did not succeed in demonstrating that he had held a post related to microbiology, irrespective of where that experience was acquired.

69 Consequently, it follows from the foregoing that ECDC did not make a manifest error of assessment in taking the view that the applicant’s professional experience was not commensurate with its new needs. Therefore, the applicant’s complaint relating to the alignment between his professional experience and the new needs of ECDC must be rejected.

70 Regarding the academic background required for the new needs of ECDC, the applicant submits that he has a microbiology background and holds, inter alia, a ‘Master of Science in Bio-engineering. Specialisation: cell- and gene biotechnology’, which he claims covers various fields of microbiology and biosciences.

71 In his complaint of 16 October 2020 and in his pleadings, the applicant lists the subjects taught in his master’s degree in order to demonstrate that he does in fact have the background required for the newly created position.

72 However, it must be stated that that list is not supported by any document demonstrating the actual study of those subjects. Since the title of the applicant’s degree is ‘Master of Science in Bio-engineering. Specialisation: cell- and gene biotechnology’, a specialisation in microbiology has not been sufficiently proved and the applicant has failed to adduce sufficient evidence to render the assessment of ECDC implausible.

73 Furthermore, it should be noted that, following his master’s degree, the applicant chose to specialise in bioinformatics by preparing a PhD in bioinformatics, so that his profile moved away from that of a microbiology specialist.

74 Thus, it follows from the foregoing that ECDC did not make a manifest error in assessing the applicant’s profile in the light of its new needs, so that the complaints put forward in support of the first part of the first plea must be rejected, as must the first part in its entirety.

75 In support of the second part of the first plea, the applicant raises two complaints.

76 In the applicant’s view, the contested decision is vitiated by a manifestly erroneous assessment of his conduct over the last five years, and ECDC was wrong to take the view that the improvements noted in the last year were to be qualified by the fact that it was the year of his contract renewal.

77 In the first place, as regards the manifestly erroneous assessment of his conduct over the last five years, the applicant submits that the appraisal of his performance in the context of the renewal of his contract is based, in part, on his 2015 appraisal report, which relates to his performance for the year 2014, and that that is not consistent with the Director’s statements that ‘for a contract renewal, the performance of the previous [five] years is taken into account’. ECDC wrongly claims that it used the reference to that report only ‘by way of example’, when it was explicitly taken into account in the assessment of his performance.

78 In addition, the applicant states that his 2015 and 2018 appraisal reports for his performance for the years 2014 and 2017 led to a ‘satisfactory’ assessment, so that the reference to those reports cannot justify the non-renewal of his contract. Furthermore, he disputes the reference to the 2018 and 2019 reports for his performance for the years 2017 and 2018, each of which were challenged by him. Moreover, the applicant submits that, despite a request to that effect, ECDC has not provided any document demonstrating the issues of his conduct that are alleged against him.

80 First, it must be stated that, in the contested decision, the Director of ECDC expressly referred to the 2015 appraisal report, which relates to the applicant’s performance for the year 2014, that is to say, beyond the five reference years on which she relies.

81 Nevertheless, such a reference cannot in itself demonstrate that the appraisal of the applicant’s performance in the context of the renewal of his contract is, as the applicant argues, based entirely on evidence prior to the reference period (see, to that effect, judgment of 19 September 2007, Talvela v Commission, F‑43/06, EU:F:2007:162, paragraph 74).

82 It is apparent from the contested decision that the difficulties encountered by the applicant as regards his conduct in the service were identified before the reference period and continued during that period. Thus, such references constitute, in the context of an on-going situation, a simple reminder of what the member of staff concerned is criticised for, which was already a problem before that period. Such a reference does not show that the applicant’s conduct was, as the applicant argues, assessed in relation to another reference period (see, to that effect, judgment of 19 September 2007, Talvela v Commission, F‑43/06, EU:F:2007:162, paragraph 75).

83 Furthermore, it does not appear inappropriate for the contested decision to refer to the conduct of the applicant during the year preceding the reference period if that is useful for assessing any changes in his conduct during that reference period (see, to that effect, judgment of 19 September 2007, Talvela v Commission, F‑43/06, EU:F:2007:162, paragraph 76).

84 The Court notes that, in the contested decision, the Director of ECDC referred to the period of the previous five years and, in particular, to the year 2019. As regards the decision rejecting the complaint, reference is made to the 2018 and 2019 appraisal reports for the applicant’s performance in 2017 and 2018, which refer to issues of the applicant’s conduct. Therefore, the view cannot be taken, contrary to what is argued by the applicant, that his appraisal was drawn up on the basis of reports relating to an irrelevant period.

85 Secondly, as regards the applicant’s 2015 and 2018 appraisal reports for the applicant’s performance in 2014 and 2017, it is true that those reports led to a ‘satisfactory’ assessment. Nevertheless, it should be noted that a conclusion of ‘satisfactory’ in an appraisal report is not incompatible with the fact that difficulties are noted in that report. In the present case, despite a conclusion of ‘satisfactory’, the 2018 appraisal report, relating to the performance for the year 2017, mentions difficulties with regard to the applicant’s conduct in the service. It is stated, inter alia, that ‘[the applicant’s qualities] are not sufficient for a satisfactory performance, unless coupled with a more positive attitude towards the contribution of others’ and that ‘this behavioural change is expected to be visible in 2018 as explained [to the applicant] in order to maintain a satisfactory performance’. A comparable situation is, moreover, noted in the 2015 appraisal report relating to the performance for the year 2014, which, despite a conclusion of ‘satisfactory’, mentions difficulties with regard to the applicant’s conduct in the service. It is in fact stated, inter alia, that ‘it is expected that [the applicant] solves or escalates problems as they come and does not [call into question in a generalised manner] judgments of colleagues’ and that ‘remaining challenges for [the applicant] are improvements in effective communication and collaborative working’.

86 Thus, although the 2018 appraisal report for the applicant’s performance in 2017 led to a ‘satisfactory’ assessment, the issues of the applicant’s conduct had already been commented upon by his reporting officers, so that, contrary to what the applicant claims, that appraisal report would, among other items, justify the non-renewal of his contract.

87 Thirdly, as regards the 2018 and 2019 appraisal reports relating to the applicant’s performance for the years 2017 and 2018, although the applicant states that he challenged them, it must be noted that those challenges were rejected. Therefore, those appraisal reports are final and could provide a valid basis for assessing the applicant’s performance with a view to renewing his contract.

88 Fourthly, as regards the applicant’s argument that there is no document demonstrating the issues of his conduct, it should be noted that, although ECDC is required to comply with an obligation to state reasons when exercising its powers, it is not required to adduce material evidence in support of its assessments. On the contrary, as noted in paragraph 34 above, the burden of proof lies with the applicant, who is required to adduce evidence capable of rendering the assessments made by the administration implausible. He has not done that here.

89 It follows from the foregoing that ECDC did not make a manifest error in taking into consideration all of the applicant’s appraisal reports in order to assess his performance with a view to renewing his contract.

90 In the second place, the applicant submits that his conduct in the service was incorrectly assessed, since the improvements in his conduct noted in his 2020 appraisal report, relating to his performance for the year 2019, were qualified by the fact that that year was the year of his contract renewal. In the applicant’s view, such an interpretation means that less value or even no value at all is given to the assessments made in the appraisal reports for the years preceding the year of renewal.

92 In the contested decision, the Director of ECDC stated that, ‘in this respect, [it was appropriate] to point out that it [was] not unusual that staff members make an extra effort during the year in which their contract [came] up for renewal’. That assessment was reiterated in the defence, in which it is stated that the applicant’s conduct improved at the time ‘he became aware of the seriousness of his behaviour and its potential impact on his contract renewal’, that ‘it is not unusual for staff members to make an extra effort during the year in which their contract comes up for renewal’ and that, ‘thus, there is no guarantee that the applicant would have maintained the desired behaviour once his contract would have been renewed for an indefinite period’.

93 However, although the administration has a wide discretion in the renewal of the contract of a member of the temporary staff, as noted in paragraph 32 above, and in the assessment of its staff (see, to that effect, judgments of 1 June 1983, Seton v Commission, 36/81, 37/81 and 218/81, EU:C:1983:152, paragraph 23, and of 3 December 2019, Pethke v EUIPO, T‑808/17, EU:T:2019:832, paragraph 39), that cannot permit that administration to make assumptions on the reasons for the efforts made by a member of staff as regards his or her conduct in the service, so that those efforts would not be taken into consideration for the purpose of assessing his or her conduct in the context of the renewal of his or her contract. Nonetheless, it is permissible for the administration, when assessing its staff, to take account of objective factors which make it possible to qualify assessments, both positive and negative, which may be made on the behaviour of one of its members of staff.

94 In the present case, it is true that ECDC relied, as it acknowledges in its defence, on the assumption that the applicant improved his conduct during 2019 because he feared that his contract would not be renewed upon its expiry in 2020. Such clumsy expression is not, however, capable, in the circumstances of the present case, of invalidating the assessment of the applicant’s performance for that year and of rendering implausible the assessment contained in the contested decision. First, the assumption thus expressed had the effect of qualifying, and not of calling into question, the conclusion of ‘satisfactory’ contained in the 2020 appraisal report, since ECDC did not deny that the efforts and improvements made by the applicant in 2019 were genuine. Secondly, it was permissible for the administration to rely on the objective factor of the improvement in the conduct of the applicant during the last year preceding the renewal of his contract and to find, in the exercise of its wide discretion, that, in the light of the difficulties noted in that regard during previous years, the applicant had not demonstrated a sufficient level of consistency to ensure that the same behaviour would continue over the long term and, consequently, to benefit from such a renewal.

96 It follows that the second part of the first plea must be rejected, as must, therefore, the first plea in its entirety.

97 The applicant states that by justifying the decision not to renew his contract by changing the position that he held, ECDC vitiated that decision with a misuse of powers.

98 First, the applicant submits that the project in which a restructuring of ECDC, including the need to create new roles or positions, was examined had not been completed when the decision not to renew his contract was taken, so that the argument concerning the need to change the position could not stem from a recommendation made in the context of that project. The applicant adds that, despite a request on his part, no evidence was provided by ECDC to justify the need to change that position.

99 Secondly, the applicant argues that the absence of provisions governing recourse to the creation of a new position does not enable the legitimacy of such a decision to be ensured or to distinguish a legitimate need from a hidden sanction. When questioned on that point at the hearing, the applicant stated, however, that he was not challenging the legality of the vacancy notice, but ECDC’s assessment that he did not have the necessary expertise for the future needs of ECDC.

100 Thirdly, the applicant states that the negative opinion concerning the renewal of his contract was provided less than two weeks after ECDC had been notified of the action that he had brought before the Court on 19 January 2020 against his 2019 appraisal report drawn up for the year 2018. That negative opinion – which was justified in part by the need to change the position to meet the new needs of ECDC – was given even though that need had never been mentioned previously. The statement made by the applicant’s head of unit that it is not possible to work for ECDC and at the same time to sue it is a further indication that the non-renewal of his contract was in fact a hidden sanction.

101 Fourthly, the applicant observes that there is a clear contrast between the letter of 4 December 2019, in which ECDC informed him that, in the context of the new organisation to be implemented with effect from 1 January 2020, his position within that structure was confirmed, and the email of 25 February 2020 informing him of the reasons for the non-renewal of his contract, including the new needs of ECDC.

102 In the applicant’s view, those elements, taken as a whole, are such as to establish that there was a misuse of powers by ECDC and are capable of justifying the annulment of the contested decision.

104 According to settled case-law, misuse of powers is deemed to exist and affect the presumption of legality enjoyed by the act of an appointing authority only if it is proven that that appointing authority, in adopting the contested act, was pursuing an objective other than that pursued by the rules in question or if it is apparent, on the basis of objective, relevant and consistent evidence, that the act in question was adopted for purposes other than those stated (see judgment of 3 October 2006, Nijs v Court of Auditors, T‑171/05, EU:T:2006:288, paragraph 64 and the case-law cited).

105 As noted in paragraph 33 above, the non-renewal of a fixed-term contract comes within the wide discretion of the competent authority, and review by the EU Courts must therefore be limited to ascertaining that there has been no error of law, manifest error of assessment or misuse of powers.

106 In the present case, the decision not to renew the applicant’s contract is based on two grounds, namely, first, that the applicant’s profile no longer met the needs of ECDC and, secondly, that the applicant’s performance was not of an adequate standard.

107 First, as regards the applicant’s argument that the decision not to renew his contract was taken before the project for the restructuring of ECDC was finalised, so that the need to change his position could not stem from a recommendation of that project, the Court takes the view that it is not necessary for that project to be completed in order for ECDC, first, to be aware of the future needs of its departments and, secondly, to be able to assess the performance of the applicant with a view to renewing his contract.

108 Secondly, as regards the applicant’s argument concerning the absence of provisions governing recourse to the creation of a new position, it should be borne in mind that an institution alone has the power to organise and operate a department, and that the hierarchical authority has sole responsibility for how departments are organised. It is for that authority alone to assess the needs of the service and to assign the staff available to it accordingly. That freedom includes the power to abolish posts and to change the tasks allocated to surviving posts, in the interests of better organisation of work, and the power to reassign tasks previously carried out by the holder of an abolished post (see, to that effect, judgments of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 103, and of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 104). In the present case, among the two grounds for the non-renewal of the applicant’s contract is that relating to the unsuitability of the applicant’s profile for the future needs of ECDC, namely an in-depth knowledge of microbiology at Member-State level and an ability to translate different signals and triggers into public health recommendations that lead to action in the Member States. The Court notes that, following the non-renewal of the applicant’s contract relating to the position Expert Public Health Bioinformatics, ECDC issued a vacancy notice for the position Expert Microbiology and, as it stated at the hearing in response to a question from the Court, has actually recruited a person for that position, which is such as to corroborate the change in the needs of ECDC that was relied on in the contested decision.

109 Thirdly, as regards the date on which the negative opinion was given, it should be noted, as ECDC states without being contradicted, that the question of the renewal of contracts is usually examined by the Director Consultation Group eight to nine months before the expiry thereof. Moreover, at the meeting on 11 February 2020, the renewal of a number of contracts, including not only that of the applicant, was examined, so that the fact that that opinion was given two weeks after ECDC had been informed of the action brought by the applicant before the Court cannot demonstrate a ploy on the part of ECDC and thus constitute an indication that there has been a misuse of powers.

110 Furthermore, the claims that the applicant’s head of unit stated that it was not possible to work for ECDC and at the same time to sue it are not supported by any evidence.

111 Fourthly and lastly, the argument alleging a manifest contradiction between the letter of 4 December 2019 maintaining the applicant’s position in the structure within ECDC and the email of 25 February 2020 informing him of the reasons for the non-renewal of his contract also cannot be accepted. It is apparent from the letter of 4 December 2019 that, on the date on which it was drawn up, the applicant’s profile did not justify his being moved to another department. However, it cannot be inferred from that letter that, at the time of the renewal of the applicant’s contract, his profile corresponded to the new needs of ECDC.

112 Thus, the applicant has not adduced objective, relevant and consistent evidence capable of demonstrating, in accordance with the case-law cited in paragraph 104 above, that the contested act was adopted for purposes other than those stated. Consequently, the plea alleging misuse of powers must be rejected.

113 The applicant argues that ECDC failed to comply with its duty of care and puts forward two complaints in that regard.

114 In the first place, the applicant submits that, under the duty of care, ECDC should have given him the opportunity to improve and to adapt to the needs of the organisation, especially given that his last appraisal report no longer mentioned any issues of his conduct in the service.

115 In that regard, the applicant argues that the reference to his 2012 appraisal report, relating to his performance for the year 2011, manifestly misrepresents his appraisal reports, since it merely mentions the part relating to the improvements expected of him without referring to the positive nature of the rest of the paragraph. Similarly, the applicant submits that the renewal of his contract in 2015 was not, contrary to what is claimed by ECDC, the subject of discussion on account of the issues of his conduct and that ECDC does not provide any evidence in support of that claim.

116 In the second place, the applicant argues that, according to the document entitled ‘Next Gen Structure Restructure guiding principles’, it was for ECDC to train and develop the staff of ECDC in the event of a change in job description and to rely on recruitment only when such training and such development were not possible.

117 The applicant adds that, in 2015, he received microbiology training from ECDC, which included laboratory work on a state-of-the-art next generation DNA sequencing device. Therefore, ECDC cannot merely claim that the applicant did not meet the required experience criterion in order to refuse to allow him to receive training for the newly created position.

119 According to the settled case-law, the administration’s duty to have regard for the welfare of its staff reflects the balance of reciprocal rights and obligations that the Staff Regulations have created in relations between the public authority and public service employees. That duty implies in particular that when the authority takes a decision concerning the situation of an official or other staff member, it must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official or the staff member concerned (see, to that effect, judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 119 and the case-law cited).

120 In the first place, as regards the first complaint that ECDC should have given him the opportunity to improve his conduct in the service, it is apparent from the file that the issues of the applicant’s conduct in the service continued over the years. The applicant’s appraisal reports show that ECDC displayed a regard for his welfare by repeatedly drawing his attention to the issues of his conduct and by inviting him to address them.

121 In that regard, the applicant’s last appraisal report, relating to the performance for the year 2019, noted the improvements made with regard to his conduct in the service, which were also taken into consideration in the contested decision. It is on that basis that ECDC came to the conclusion that, ‘although there were improvements in the last year’, that factor alone was not sufficient to come to the overall conclusion that the applicant’s performance was satisfactory with a view to renewing his contract.

122 In addition, the duty to have regard for the welfare of officials calls on the administration to balance the interests of the applicant against those of the service. As was held in paragraph 74 above, ECDC did not make a manifest error in basing its decision not to renew the contract of the applicant in part on his conduct in the service, but also on the new needs of the service.

124 In the second place, as regards the second complaint that ECDC infringed its duty of care in that it did not suggest that the applicant undertake training for the purpose of meeting the requirements of the new needs of the service, in accordance with the ‘Next Gen Structure Restructure guiding principles’, it should be borne in mind that, even if that document were binding, the decision not to renew the applicant’s contract is justified, inter alia, by an academic background which is unsuitable for the profile of an expert in microbiology and by a lack of professional experience in that field. Professional training in microbiology, as sought by the applicant, cannot be sufficient to compensate for those inadequacies and to meet the requirements arising from the new needs of ECDC.

125 Accordingly, the second complaint cannot succeed, so that the plea alleging breach of the duty of care must be rejected. Consequently, the claims for annulment must be rejected in their entirety.

126 The applicant claims that ECDC should be ordered to pay him the net salary of which he was deprived between the non-renewal of his contract and the date of his reinstatement.

127 In addition, he puts forward claims for damages seeking compensation for the non-material and material damage allegedly caused to him by the contested decision and the decision rejecting the complaint.

128 When questioned on that point at the hearing, the applicant stated that his claim for compensation for material damage was put forward in the alternative, should his claim that ECDC should be ordered to pay him the net salary of which he was deprived between the non-renewal of his contract and the date of his reinstatement not be upheld.

129 The non-material damage suffered by the applicant as a result of the conduct of ECDC in the non-renewal of his contract is assessed ex aequo et bono at the sum of EUR 20 000.

131 It should be borne in mind that, in civil service issues, a claim for compensation for material and non-material damage must be rejected in so far as it is closely linked to the claim for annulment, which itself was dismissed as unfounded (judgment of 21 May 2008, Belfass v Council, T‑495/04, EU:T:2008:160, paragraph 122; see also, to that effect, judgment of 16 July 1981, Albini v Council and Commission, 33/80, EU:C:1981:186, paragraph 18).

132 As has been stated in paragraph 125 above, the claims for annulment must be rejected. In support of his claims for compensation for the damage which he claims to have suffered, the applicant does not rely on illegalities other than those in support of his claims for annulment. Those claims for compensation must therefore also be rejected.

134 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. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by ECDC.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Van Walle v ECDC (Civil service - Decision not to renew a contract - Judgment) [2022] EUECJ T-83/21 (12 October 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/T8321.html Cite as: EU:T:2022:626, ECLI:EU:T:2022:626, [2022] EUECJ T-83/21

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