FT v AEMF (Judgment) [2015] EUECJ F-39/14 (08 October 2015)

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(Civil service — Member of the temporary staff — Accounting Officer — Non-renewal of a fixed term contract — Competent authority — Manifest error of assessment — Burden of proof — Rule of correspondence between the application and the complaint)

FT, former member of the temporary staff of the European Securities and Markets Authority, residing in Paris (France), represented by S. Pappas, lawyer,

European Securities and Markets Authority (ESMA), initially represented by R. Vasileva Hoff, acting as Agent, assisted by D. Waelbroeck and A. Duron, lawyers, and subsequently by R. Vasileva Hoff and A. Lorenzet, acting as Agents, assisted by D. Waelbroeck and A. Duron, lawyers,

composed of K. Bradley (Rapporteur), President, H. Kreppel and M.I. Rofes i Pujol, Judges,

having regard to the written procedure and further to the hearing on 6 May 2015,

1 By application received at the Tribunal Registry on 25 April 2014, FT brought the present action essentially seeking annulment of the decision of 28 June 2013 of the Executive Director of the European Securities and Markets Authority (ESMA) not to renew her fixed-term temporary contract, which expired on 31 December 2013.

2 Article 53(8) of Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ 2010 L 331, p. 84) (‘the ESMA regulation’) provides as follows:

‘The Executive Director shall exercise in respect to [ESMA’s] staff the powers laid down in Article 68 and manage staff matters.’

‘1. The Staff Regulations of Officials [of the European Union], the Conditions of Employment of Other Servants [of the European Union] and the rules adopted jointly by the Union institutions for the purpose of applying them shall apply to the staff of [ESMA], including its Executive Director and its Chairperson.

3. In respect of its staff, [ESMA] shall exercise the powers conferred on the appointing authority by the Staff Regulations of Officials [of the European Union] and on the authority entitled to conclude contracts by the Conditions of Employment of Other Servants [of the European Union].

4 On 11 January 2011, the ESMA Management Board (‘the Management Board’) adopted a decision on the financial regulation of ESMA (‘the ESMA financial regulation’).

5 On 22 December 2011, ESMA adopted a performance appraisal policy setting out its staff performance appraisal procedure. That performance appraisal policy was replaced by a new performance appraisal policy, which was adopted on 8 January 2013 and applied to the 2012 appraisal exercise.

6 On 7 June 2013, the Executive Director of ESMA (‘the Executive Director’) adopted guidelines on the contract renewals procedure (‘the guidelines’), Article 4 of which, entitled ‘Decision on contract renewal’ reads as follows:

‘The decision to renew contracts of employment is taken by the Executive Director (Authority habilitated to conclude contracts) in accordance with the needs of the service …’

‘In order to have a harmonised approach for all decisions on renewal of contracts, such decisions should be taken and notified to the staff member concerned within the time limits for the notice period stated above …

The [HR department] will send a specific “Renewal of Contract” form to the Head of Division/Unit, around one month prior to the date of the notice period.

The Head of Division/Unit will formulate in the form his/her recommendation about the renewal of the contract. The recommendation shall take into account the previously established performance appraisal reports of the jobholder, and the suitability of the [his or her] competences with the function as it can be expected to evolve in the following years. The [HR department] will ensure that the Head of Division/Unit will have access to all appraisal reports of the jobholder.

The [HR department] will hand over a copy of the document for the jobholder’s information and optional comments. The jobholder will be given the opportunity to add his/her comments, by the deadline specified, which should give reasonable time for the jobholder to respond. …

8 The applicant, an official of the Court of Auditors of the European Union on leave on personal grounds, was recruited by ESMA, with effect from 1 January 2011, 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 in the version then in force (‘the CEOS’) to a post in the administrators’ function group (AD), at grade AD 11, for a renewable period of three years.

9 In accordance with Article 5 of her contract of employment, the applicant was required to serve a six-month probationary period.

10 On 11 January 2011, ESMA concluded a service agreement with the Community Fisheries Control Agency which provided that the applicant would be at the disposal of this agency on the basis of between one-third and a maximum of half of her working time to provide services as an accounting officer.

11 By decision of 14 March 2011, the Management Board appointed the applicant to the post of accounting officer at ESMA, pursuant to Article 43 of the ESMA financial regulation. That decision took effect retroactively from 11 January 2011.

12 At the end of the probationary period, the Executive Director, acting in her capacity as the applicant’s assessor, recommended that she be retained in post as a member of the temporary staff.

13 It is apparent from the file that in 2012 the applicant was on sick leave for several months.

14 On 22 May 2012, ESMA launched a recruitment procedure for an accounting assistant. However, this procedure was not completed as the three candidates on the reserve list refused the post.

15 On 1 October 2012, ESMA assigned a staff member initially recruited as a financial initiating agent to the accounting department. Since that staff member left before the end of her probationary period, ESMA recruited a temporary worker on 15 March 2013 for the period between 24 June 2013 and the end of December 2013 as an interim accounting assistant. ESMA then recruited a deputy accounting officer who took up her duties on 1 August 2013. However, she resigned on 31 October 2013.

16 During that period, on 20 February 2013, the Executive Director sent the draft appraisal report (‘the 2011 appraisal report’) for the 2011 exercise to the applicant. Since the Executive Director had not received a copy of the draft report signed by the applicant, she signed and sent a copy of the same draft report to the applicant on 15 April 2013 asking her to sign and return it. On 4 April 2013, the Executive Director also sent the draft appraisal report (‘the 2012 appraisal report’) for the 2012 exercise to the applicant.

17 In spring 2013, the applicant was on sick leave once again until 10 June 2013.

18 On 18 June 2013, the applicant had a meeting with the Executive Director in order to discuss the expiry of her contract, which was due to take effect on 31 December 2013. It is apparent from an e-mail sent by the Executive Director to the head of the HR department, first, that, during that meeting, the Executive Director noted that she had mixed views on the applicant’s performance and raised the question of what level of accounting officer ESMA would need in the future. Secondly, the applicant stated that she wished to stay at ESMA and, at the same time, indicated that she was not willing to accept a post at a lower level.

19 On 20 June 2013, ESMA sent the applicant the contract renewal form provided for in the second paragraph of Article 5 of the ESMA guidelines (‘the contract renewal form’). The contract renewal form was accompanied by a comment from the Executive Director informing the applicant that she was considering all the options concerning the potential renewal of the applicant’s contract, including, inter alia, non-renewal or renewal for a period shorter than the initial contract period. The applicant was invited to submit her comments by 18:00 on 26 June 2013.

20 By e-mail of 24 June 2013 sent to the Executive Director, the applicant first pointed out that the contract renewal form did not contain any suggestion regarding the renewal of her contract. Then, after confirming that she wished to continue working with ESMA, she noted that, from the point of view of long-term employment, her health problems were resolved and that only renewal of her contract for the planned three-year period would be acceptable to her.

21 On 26 June 2013, the applicant had a second meeting with the Executive Director in order to discuss the renewal of her contract.

22 By letter of 28 June 2013, the Executive Director informed the applicant of her decision, taken in her capacity as the authority empowered to conclude contracts of employment (‘the AECCE’), not to renew her contract (‘the contested decision’).

23 The file shows that, on 8 July 2013, during a telephone conversation, the applicant asked the Executive Director to reconsider the contested decision and proposed a ‘75% working arrangement’ which would allow her to work full time during the ‘busy’ season and more flexibly during the rest of the year by alternating two weeks of work with two weeks off.

24 At another meeting on 10 July 2013, the Executive Director told the applicant that her proposal of 8 July 2013 would not ‘add any value for ESMA’.

25 The issue of renewal of the applicant’s contract was addressed at two further meetings between the applicant and the Executive Director on 19 July and 1 August 2013.

26 On 7 August 2013, the applicant sent an email to the Chair and Vice-Chair of ESMA (‘the Chair’ and ‘the Vice-Chair’) in which she claimed that the contested decision was ‘directly linked to [the] control function [she] fulfill[ed] as Accounting Officer’.

27 On 10 September 2013, the applicant, the Chair, the Vice-Chair and the Executive Director met to discuss whether there was a link between the contested decision and any irregularity or error in the accounts. The applicant maintained, in particular, at that meeting that senior management was preventing her from exchanging information with the Management Board and that she had been ‘threatened with a non-renewal of contract’. When the Chair and Vice Chair asked the applicant at that meeting whether she knew of any accounting issues of which they should be aware and which might have influenced the contested decision, ESMA states, and the applicant does not dispute, that she did not raise any issue but merely stressed the importance of the accounting function for ESMA and expressed her concern with regard to the contested decision.

28 By letter of 20 September 2013, the applicant submitted a complaint against the contested decision, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).

29 By e-mail of 18 December 2013, the applicant asked the Executive Director to find a solution acceptable to all parties regarding the renewal of her contract, indicating in particular that she was willing to accept ‘a different capacity such as directly supervisory tasks, audits, on-the-spot controls, risk management, institutional relations or similar [tasks]’.

30 By decision of 27 January 2014, the Executive Director rejected the complaint (‘the decision rejecting the complaint’) and the applicant’s request of 18 December 2013.

– order ESMA to pay her the sum of EUR 20 000 in compensation for non-material damage suffered;

33 By letter of 23 April 2015, the applicant made an application requesting that her name be omitted from the Tribunal’s publications. By letter of 4 May 2015, the Registry of the Tribunal informed the parties of the Tribunal’s decision to grant that application.

34 At the end of the hearing, before closing the oral procedure, the President of the formation of the Tribunal hearing the case invited the parties to take part in an informal meeting for the purpose of seeking an amicable settlement of the dispute. Since the parties did not reach an agreement, the Tribunal noted that the attempt to reach an amicable settlement had failed and the oral procedure was closed, the parties being so informed by a letter from the Tribunal Registry of 21 May 2015.

35 The applicant puts forward five pleas in law in support of the claim for annulment of the contested decision, alleging (i) that the authority which adopted the contested decision was not competent to do so; (ii) that procedural requirements and the rights of the defence were infringed; (iii) that there was a manifest error of assessment; (iv) that the duty to have regard to the interests of staff was breached and (iv) misuse of power.

36 In its defence, ESMA disputes the admissibility of the five pleas in law on the ground of infringement of the rule of correspondence between the administrative complaint and the action.

37 However, at the hearing, the applicant withdrew the first and fourth pleas in law and ESMA withdrew the objection of inadmissibility directed against the second and third pleas.

38 The Tribunal points out in that regard, first, that a plea alleging that the author of a measure adversely affecting the applicant was not competent to adopt that measure is a plea raising a matter of public policy which the Tribunal must in any event examine of its own motion (judgments of 8 July 2010 in Commission v Putterie-De-Beukelaer, T‑160/08 P, EU:T:2010:294, paragraph 61, and 30 November 2009, Wenig v Commission, F‑80/08, EU:F:2009:160, paragraph 83 and the case-law cited). Secondly, according to settled case-law, the question of correspondence between the complaint and the application is a matter of public policy (judgment of 31 May 2005 in Dionyssopoulou v Council, T‑284/02, EU:T:2005:188, paragraph 61) and must therefore be examined by the Tribunal even if it was not raised by the defendant or if, as in the present case, the defendant withdrew the objection of inadmissibility raised in the defence at the hearing.

39 It follows that the Tribunal will first examine whether the contested decision was adopted by the competent authority, then the second, third and fifth pleas, without examining the fourth plea which the applicant withdrew and which does not involve a matter of public policy.

40 The Tribunal considers it necessary to verify whether, given the functional independence of the accounting officer and the fact that the latter is appointed by the Management Board, the authority empowered to adopt the contested decision was the Executive Director or, as indicated in the applicant’s first plea in law, the Management Board.

41 In that respect, first, Article 43 of the ESMA Financial Regulation states that ‘the Management Board shall appoint an accounting officer, covered by the Staff Regulations, who shall be functionally independent in the performance of his duties’. Secondly, it is clear from Article 53(8) read in conjunction with Article 68(3) of the ESMA Regulation that the Executive Director of ESMA is to exercise the powers of the AECCE and that no exception has been laid down in respect of the accounting officer.

42 It must therefore be held that the provisions referred to in the above paragraphs establish a clear separation between the powers of the Executive Director, who concludes contracts of employment and exercises the powers of the AECCE in respect of ESMA staff, and the powers of the Management Board which appoints an accounting officer from among the staff. As ESMA observed in its defence, that interpretation is borne out by the fact that the applicant was initially recruited as a member of the temporary staff, with effect from 1 January 2011, before being appointed accounting officer with effect from 11 January 2011.

43 It follows that the contested decision is not vitiated by any illegality in so far as it was adopted by the Executive Director.

Second plea in law, alleging infringement of procedural requirements and the rights of the defence

45 In the first complaint, the applicant notes that, in the contract renewal form, the Executive Director, acting as the reporting officer, did not indicate whether or not she recommended that the contract be renewed, which, the applicant claims, is a breach of Article 5 of the guidelines. In that respect, the applicant claims that, in her email of 24 June 2013, she had indicated that she was not able to provide comments because no formal recommendation had been made.

46 The applicant therefore considers that she was deprived of the opportunity to formulate, in writing, objections to non-renewal of the contract, given the lack of any recommendation in that regard as well as the fact that, as a consequence, no reasonable time-limit for replying was set.

47 In the second complaint, the applicant submits that the contested decision is based on the appraisal reports of 2011 and 2012 which were not drawn up in accordance with the relevant guidelines.

48 In particular, as regards the 2011 appraisal report, the applicant notes that the Countersigning Officer only signed it on 10 April 2014, almost 10 months after the contested decision was adopted. As regards the 2012 appraisal report, the applicant notes that the Appeal Assessor was never consulted and at the time the action was brought had not even signed that report.

49 The applicant concludes that the contested decision was adopted on the basis of incomplete assessments, which were vitiated by procedural errors. The applicant concedes that she was given access to several draft versions of the 2011 and 2012 appraisal reports but maintains that she was not informed of their final content before the contested decision was adopted.

50 In its defence, ESMA asks, primarily, that the second plea in law be declared inadmissible since it was not raised in the complaint. In any event, ESMA considers the present plea in law to lack any foundation in law.

51 In the alternative, ESMA considers that the contested decision must be regarded as separate from the appraisal reports, since that decision was taken not only in view of the applicant’s performance but also the of needs and continuity of the service, the applicant’s skills and the compatibility of her profile with the role of accounting officer, which was expected to change over subsequent years.

52 As regards the first complaint in the present plea in law, alleging infringement of Article 5 of the guidelines, it is clear from the contract renewal form that even though the Executive Director did not tick either the ‘Renewal suggested’ box or the ‘Renewal not suggested’ box, she did indicate in the ‘Optional comments’ section that she was ‘considering all the options … including in particular non-renewal or potentially shorter term fixed contract renewal’ and invited the applicant to add her comments in that respect.

53 That comment, in itself, meets the requirement set out in Article 5 of the guidelines and also offers the applicant the option to give her view not only on the option ‘Renewal not suggested’ but also on other options not included in the contract renewal form such as a renewal for a shorter period or to make other suggestions of her own.

54 Furthermore, it should be noted that by e-mail of 24 June 2013 addressed to the Executive Director, the applicant clearly expressed her wish that her contract be renewed, and at the same time ruled out the possibility of accepting a contract for a period under three years. That expression of willingness shows that she clearly understood that the Executive Director was considering the option of not renewing her contract or of offering her a contract for a period of less than three years.

55 In addition, as the applicant acknowledged at the hearing in reply to a question from the Tribunal, her interpretation of the guidelines would have required the Executive Director to tick either the ‘Renewal suggested’ box or the ‘Renewal not suggested’ box of the contract renewal form, with no possibility of suggesting any other solution. It is moreover apparent from that form that the Executive Director was under no obligation to add comments, as they were optional. In the circumstances of the present case, since the Executive Director did not suggest renewal of the contract, the solution that she finally adopted, which left other options open, was manifestly more in the interests of the applicant than the proposal that the applicant’s contract, purely and simply, not be renewed.

56 As regards the allegedly unreasonable time-limit for the submission of comments, the applicant received the contract renewal form by e-mail on 20 June 2013 at 14:55 with a deadline for the submission of comments of 26 June 2013 at 18:00.

57 The Tribunal considers that, in the circumstances of the present case, the applicant was given sufficient time to submit comments on the various options concerning the renewal of her contract.

58 First, it is clear from section 4 of the guidelines that ESMA was required to take a decision on whether or not to renew the applicant’s contract six months before it expired, namely 30 June 2013 at the latest. Since 30 June 2013 was a Sunday, the Executive Director was required to take the decision by Friday 28 June 2013 at the latest. Secondly, it is not disputed by the parties that the applicant met the Executive Director on 18 June 2013, one week after her return from sick leave and that the two were in contact on several other occasions before the reply period expired, as is clear from paragraphs 19 to 21 of this judgment, which should have given both parties the opportunity to discuss the potential renewal of the applicant’s contract. It follows that, by filling in the contract renewal form on the second working day after the meeting of 18 June 2013 and setting a deadline for reply of 26 June 2013, the Executive Director did not disregard the guidelines.

59 Accordingly, the deadline given to the applicant to add her comments to the contract renewal form was not unreasonable. It follows that the first complaint in the present plea in law may not be upheld.

60 As regards the second complaint in the present plea in law, alleging that the contested decision relies on the 2011 and 2012 appraisal reports, which are vitiated by several procedural deficiencies, the Tribunal notes, first, that that argument was not raised in the applicant’s complaint. However, since ESMA referred to the relevance of those appraisal reports to the contested decision for the first time in the decision rejecting the complaint, it must be held that that argument is admissible in the light of the rule of correspondence between the action and the earlier complaint (judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 86).

61 With regard to the merits, the Tribunal considers that ESMA did not act unlawfully by using the 2011 and 2012 appraisal reports, even though they appear not to have been finalised before the contested decision was adopted.

62 It should be noted that, in accordance with Article 4(b) of the guidelines, when the administration is required to assess the competence and performance of a member of staff in order to decide on the renewal of his contract, it may take into consideration, in addition to the job description of the party concerned, his appraisal reports, and, where no appraisal report has been established ‘any other relevant documents’.

63 The Tribunal considers that the concept of ‘relevant documents’ is sufficiently broad to include, as in the case of the 2011 appraisal report, an appraisal report which was submitted to the member of staff in question and signed by the Executive Director acting as the reporting officer or, as is the case for the 2012 appraisal report, a draft report not signed by the reporting officer but not challenged by the member of staff concerned. Moreover, it should be noted that, in her application, the applicant herself relies on several comments which appear in the 2011 and 2012 appraisal reports by stressing that those reports contained a number of very positive comments about her skills and gave an account of the difficult conditions under which she worked.

64 It follows that the present complaint in the plea should be rejected and the second plea in law must be rejected in its entirety.

65 By her third plea in law, the applicant submits that the contested decision is vitiated by a manifest error in so far as it is based on an incorrect assessment of her skills and performance.

66 In the first place, the applicant challenges the assertion in the decision rejecting the complaint that her attendance at meetings of the Management Board was not sufficient or that she did not participate in those meetings in a sufficiently active manner. In that respect, she submits that she expressed on several occasions her willingness to participate in those meetings and their internal preparation but that she had been prevented from doing so by the Executive Director. In any event, she maintains that she participated in several of those meetings.

67 In the second place, the applicant submits that it would be factually inaccurate to claim that, as ESMA maintains in the decision rejecting the complaint, she was neither capable nor ready to ‘expand her performance beyond the scope of the purely technical aspects of her employment’. In that respect, the applicant complains that ESMA failed to take several factors into account.

68 First, the applicant notes that since ESMA had only recently been established, she had been faced with a large variety of tasks which she was obliged to manage alone, owing to a lack of assistance and resources and that, in the first seven months of her employment she performed ‘two jobs at the same time’ pursuant to the agreement with the Community Fisheries Control Agency. Next, she submits that she fulfilled all her objectives while delivering high quality work despite suffering serious health problems in 2012 and April 2013. In that respect, she complains that ESMA did not provide a replacement during her sick leave, which required her to work well outside her normal working hours, including during annual leave and hospital stays. Finally, she claims that she participated in tasks beyond the scope of her job description, such as, inter alia, the recruitment of several heads of unit or department, and assistance and training for finance and logistics departments. In the applicant’s view, those circumstances contradict the Executive Director’s assertion that she ‘did not appear to have the knowledge to exceed beyond the confinement of the technical skills of her position’ (sic).

69 In the third place, the applicant considers that the AECCE manifestly erred in considering her ability to work in a team to be insufficient. That conclusion is inconsistent with the comments in her 2011 and 2012 appraisal reports, which acknowledged that she had ‘shown a positive spirit and attitude, working closely and well with colleagues’ and indicated that she ‘generally work[ed] well with her colleagues’. The applicant maintains, in addition, that she only experienced conflict with one colleague, which, moreover, was ultimately resolved.

70 In the fourth place, the applicant claims that ESMA erred in considering that she was not open to any solution other than renewal of her initial contract for a period of three years.

71 ESMA claims that the Tribunal should reject the third plea in law as unfounded.

72 As a preliminary point, it should be noted that, according to settled case-law, a member of the contract staff with a contract of fixed duration does not in principle have any right to have his contract renewed, such renewal being a mere possibility, subject to the condition that renewal is in keeping with the interest of the service (judgment of 19 February 2013 in BB v Commission, F‑17/11, EU:F:2013:14, paragraph 57 and the case-law cited).

73 Furthermore, it is equally settled case-law that the administration has a broad discretion with regard to the renewal of a contract. When the Tribunal has before it an action for annulment directed against an act adopted in the exercise of that discretion, it must restrict itself to ascertaining whether, regard being had to the factors and reasons that led the administration to its assessment, the administration remained within unimpeachable limits and did not manifestly misuse its power (judgment of 11 July 2012 in AI v Court of Justice, F‑85/10, EU:F:2012:97, paragraph 152 and the case-law cited).

74 However, 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. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such 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, the plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the disputed assessment may still be accepted as justified and consistent (judgment of 11 July 2012 in AI v Court of Justice, F‑85/10, EU:F:2012:97, paragraph 153 and the case-law cited).

75 In the present case, the Tribunal considers that the applicant did not provide sufficient evidence to establish that ESMA committed a manifest error in assessing her skills and performance.

76 In the first place, as regards her participation in Management Board meetings, the applicant merely claims that she ‘indicated on various occasions her desire to partake in both the Management Board meetings as well as the internal preparation meetings’, but that the Executive Director ‘never agreed that she should partake in the internal preparation meetings’.

77 However, it must be observed that the only documents submitted by the applicant in support of her claim are three short e-mail exchanges, which took place in April 2012, February 2013 and April 2013 respectively, concerning three Management Board meetings. First, it appears that the contested comment concerning the applicant’s participation in Management Board meetings is included in the 2012 appraisal report, meaning that the e-mail exchanges of 2013, which show simply that the applicant was not invited to two meetings at which, according to ESMA, her presence was not required, are irrelevant. Next, the e-mail exchange from April 2012 concerns an invitation from the Executive Director to the applicant to participate in one part only of a meeting, from which it is impossible to conclude that the Executive Director sought to exclude the applicant from Management Board meetings.

78 It must therefore be held that the applicant has not demonstrated that ESMA committed a manifest error of assessment in considering that she should have participated more actively in Management Board meetings.

79 In the second place, the applicant maintains, in essence, that several comments in the 2011 and 2012 appraisal reports and the decision rejecting the complaint do not correspond to the facts, since the AECCE did not take into account her workload and the conditions under which she worked.

81 Contrary to the applicant’s assertion, it is apparent from the 2011 and 2012 appraisal reports that ESMA did take into account her heavy workload and the difficult conditions under which she worked, both from the point of view of the organisation of her work and her health issues.

82 In that regard, it is sufficient to note that in the 2011 appraisal report, the Executive Director observed that the applicant had done ‘an incredible job’ with few resources and ‘inexperienced colleagues against impossible timelines’. Furthermore, in the 2012 appraisal report, the Executive Director noted that the applicant had been able to achieve her objectives ‘despite serious health problems and general resource shortages’, thanked her and acknowledged her ‘personal commitment throughout the year’, stressing that she ‘appreciate[d] particularly that she volunteered to arrange her operation in such a way as not to endanger delivery of the final accounts and that she dealt with some urgent and exceptional tasks remotely during her recovery’.

83 In the third place, as regards the applicant’s ability to work in a team, the claim that she makes is based on an incorrect reading of the decision rejecting the complaint. That decision simply states that the 2011 and 2012 appraisal reports indicated that the applicant could improve, in particular, with regard to her ability to work in a team. However, that decision makes no reference to any ‘deficiency’ on the part of the applicant in that respect. Furthermore, the decision rejecting the complaint makes it clear that the tension between the applicant and one of her colleagues had been resolved.

84 Fourthly and finally, as regards the argument that the AECCE erred in considering that the applicant was not open to any solution other than renewal of her initial contract for a period of three years, it is sufficient to state that, before the contested decision was adopted, the applicant firmly rejected any possibility of her being given a contract for a period of less than three years, and as she herself acknowledges in her action, it was only after the contested decision was adopted that the applicant suggested that ESMA find a solution other than non-renewal of her contract.

86 The fifth plea in law alleges that the Executive Director decided not to renew the applicant’s contract because she had discovered weaknesses in ESMA’s financial and accounting systems.

87 The Tribunal observes at the outset that in actions brought by officials, claims before the EU Courts may contain only heads of claim based on the same matters as those raised in the complaint, although those heads of claim may be developed before the EU Courts by the presentation of pleas in law and arguments which, whilst not necessarily appearing in the complaint, are closely linked to it (judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 73 and the case-law cited).

88 In that respect, first, it is important to note that, since the pre-litigation procedure is informal in character and those concerned act, in general, without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but must, on the contrary, examine them with an open mind and, secondly, it is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the action changes neither the legal basis nor the subject-matter of the complaint. However, the fact remains that, in order for the pre-litigation procedure provided for under Article 91(2) of the Staff Regulations to achieve its objective, it is necessary that the AECCE be in a position to know with sufficient precision the criticisms formulated by the persons concerned against the contested decision (judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraphs 76 and 77 and the case-law cited).

89 In the present case, it must be noted that the applicant did not raise the plea in law alleging misuse of power in the complaint. Furthermore, in the complaint, the applicant challenges the contested decision on the ground of the alleged infringement of the obligation to give reasons, infringement of Articles 4 and 5 of the guidelines and the manifest error in the assessment of her merits, with the result that the plea in law alleging misuse of power is not closely linked to any assertion appearing in the complaint.

91 It follows that the claim for annulment of the contested decision must be rejected in its entirety.

92 The applicant claims that the Tribunal should award compensation to her in respect of the non-material harm she suffered, assessed by her on equitable principles in the amount of EUR 20 000.

93 In particular, the applicant claims that the non-material harm results, first, from the ‘extremely harmful’ nature of ESMA’s assertions concerning her failure to attend Management Board meetings, her lack of team-working abilities, and the alleged ‘stagnation of her professional capacities’ and her conduct. Those allegations are particularly offensive since she demonstrated continuous professionalism and commitment despite her serious health problems. Secondly, the non-material harm is associated with the particularly serious nature of the procedural irregularities which prevented her from exercising her rights of defence effectively.

94 ESMA claims that the Tribunal should reject the claim for compensation on the grounds that, first, all the Executive Director’s negative comments were objectively justified and those comments were not unpleasant or harmful and, secondly, the applicant was not prevented from exercising her rights of defence.

95 It must be observed at the outset that, according to the case-law, where a claim for compensation is closely connected with a claim for annulment, the rejection of the latter, either as inadmissible or as unfounded, also results in the rejection of the claim for compensation (judgment of 26 June 2013 in BM v ECB, F‑106/11, EU:F:2013:91, paragraph 69).

96 In the present case, the claim for compensation is closely connected with the claim for annulment, which was rejected as unfounded and must, consequently, be rejected.

97 Under Article 101 of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to bear his own costs and is to be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings. Under Article 102(1) of those Rules, if equity so requires, the Tribunal may decide that an unsuccessful party is to bear his own costs, but is to pay only part of the costs incurred by the other party, or even that he is not to be ordered to pay any costs.

98 It is apparent from the grounds set out in the present judgment that the applicant’s action has been unsuccessful. In addition, in its pleadings, ESMA has expressly asked the Tribunal to order the applicant to pay the costs. As the circumstances of the present case do not warrant the application of Article 102(1) of the Rules of Procedure, the applicant must bear her own costs and be ordered to pay the costs incurred by ESMA.

2. Declares that FT shall bear her own costs and orders her to pay the costs incurred by the European Securities and Markets Authority.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> FT v AEMF (Judgment) [2015] EUECJ F-39/14 (08 October 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/F3914.html Cite as: [2015] EUECJ F-39/14, EU:F:2015:117, ECLI:EU:F:2015:117

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