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

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

13 December 2018 (*)

(Civil service — Members of the temporary staff — Frontex — Non-renewal of a fixed-term contract — Article 8 of the CEOS — Duty of care — Use of an annulled appraisal report — Manifest error of assessment — Liability — Costs — Equity — Article 135(1) of the Rules of Procedure)

In Case T‑591/16,

Kari Wahlström, former member of the temporary staff of the European Border and Coast Guard Agency, residing in Espoo (Finland), represented by S. Pappas, lawyer,

applicant,

v

European Border and Coast Guard Agency (Frontex), represented by H. Caniard and S. Drew, acting as Agents, and by B. Wägenbaur, lawyer

defendant,

ACTION under Article 270 TFEU and seeking, first, annulment of the decision of 26 June 2015 not to renew the applicant’s contract as a member of the temporary staff of Frontex and, secondly, compensation for the harm allegedly suffered by the applicant due to the loss of salary consequent thereon and the loss of corresponding pension rights,

THE GENERAL COURT (Ninth Chamber),

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

Registrar: E. Coulon,

gives the following

Judgment

 Legal framework

1        Following the adoption of Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ 2016 L 251, p. 1), the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), with which the applicant had been employed on a temporary contract for a duration of five years, has become the European Border and Coast Guard Agency (Frontex).

2        Under Article 17 of Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349, p. 1) (now Article 58 of Regulation 2016/1624), the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) are to apply to Frontex’s staff.

3        Article 2 of the CEOS provides:

‘For the purposes of these Conditions of Employment, “temporary staff” means:

(a)       staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;

...’

4        As regards the duration of the contract, the first paragraph of Article 8 of the CEOS provides:

‘Temporary staff to whom Article 2(a) applies may be engaged for a fixed or indefinite period. The contracts of such staff who are engaged for a fixed period may be renewed not more than once for a fixed period. Any further renewal shall be for an indefinite period.’

5        With regard to the probationary period that the member of the temporary staff is required to serve, Article 14(3) of the CEOS provides that ‘one month at the latest before the expiry of the probationary period, a report shall be made on the ability of the staff member to perform the duties pertaining to his post and also on his efficiency and conduct in the service’ and that ‘this report shall be communicated to the member of the temporary staff, who may submit written comments within eight working days’.

6        In accordance with Article 15 of the CEOS, Article 43 of the Staff Regulations, concerning reports, shall apply by analogy.

7        Article 43 of the Staff Regulations provides:

‘The ability, efficiency and conduct in the service of each official shall be the subject of an annual report as provided for by the appointing authority of each institution in accordance with Article 110. That report shall state whether or not the performance level of the official has been satisfactory. The appointing authority of each institution shall lay down provisions conferring the right to lodge an appeal within the reporting procedure, which has to be exercised before the lodging of a complaint as referred to in Article 90(2).

...

The report shall be communicated to the official. He shall be entitled to make any comments thereon which he considers relevant.’

8        As regards the termination of the contract, Article 47 of the CEOS provides:

‘Apart from cessation on death, the employment of temporary staff shall cease:

...

(b)      where the contract is for a fixed period:

(i)       on the date stated in the contract;

(ii)       at the end of the period of notice specified in the contract giving the servant or the institution the option to terminate earlier ...’

9        As regards the internal provisions concerning the staff appraisal procedure of Frontex, Article 3 of the decision of the Executive Director of Frontex of 27 August 2009 establishing a Staff Appraisal Procedure (‘the decision of 27 August 2009’), provides:

‘1. By default the reporting officer shall be the jobholder’s direct line manager at the launch of the exercise. The Director of the division shall act as the reporting officer for the heads of the units, the Deputy Executive Director shall act as reporting officer for Directors of Divisions.

2. By default the countersigning officer is the direct hierarchical superior of the reporting officer at the launch of the exercise.

If the Executive Director is the reporting officer of the jobholder, he/she shall in addition carry out also the role of countersigning officer.

In their role, countersigning officers shall guarantee the consistent application of the appraisal standards ...’

10      Article 11(3) to (6) of the decision of 27 August 2009 provides as follows:

‘3. If the countersigning officer agrees with the report he/she shall countersign the [appraisal] report and sen[d] it to the reporting officer, who shall forward it to the jobholder.

4. If he/she does not agree with the report, the countersigning officer shall summon the reporting officer and, if necessary, the jobholder for a consultation meeting to try and reach an agreement.

5. Once an agreement is reached, the countersigning officer shall countersign the report, amended in accordance with the outcome of the meeting, and sen[d] it to the reporting officer, who shall forward it in turn to the jobholder.

6. If the consultation meeting fails to result in an agreement, the final decision shall rest with the countersigning officer, who shall forward it to the reporting officer and jobholder.’

11      The contract renewal procedure for temporary staff within Frontex is organised by means of guidelines, which were communicated on 26 July 2010 to Frontex’s staff by Administrative Notice No 40 (‘the Guidelines’), the objective of which is, inter alia, to ensure that the process is consistent, transparent and fair. It is apparent from point 2 of the Guidelines that the renewal procedure consists of four stages:

–        after the member of staff concerned has shown his interest in the renewal of his contract (points 2(a) and 2(b)), the reporting officer writes his comments and his proposal regarding renewal on an ad hoc form (point 2(c));

–        the countersigning officer assesses the proposal from the reporting officer and expresses his agreement or his disagreement and the reasons for it on the same form; if the reporting officer and the countersigning officer disagree, the latter must state the reasons for his disagreement in writing (point 2(d));

–        the Director of the Division expresses a recommendation on the form (point 2(d));

–        the Executive Director takes the final decision (point 2(e)).

12      Point 3(a) of the Guidelines provides:

‘When [the] Executive Director decides to renew the contract for [five] years, [the Human Resources Department] will prepare a letter offering the staff member a renewal of the contract for this period. …

After receiving [a] positive answer from the staff member, [the Human Resources department] will prepare a reviewed contract which will be ready two months before the expiry of the current contract waiting for the staff member acceptance and signature …’

13      Point 3(c) of the Guidelines states:

‘[Where the] Executive Director’s decision is not to renew the contract, [the Human Resources Department] will prepare a letter reflecting the arguments given by the Reporting Officer (business reasons, performance-related reasons, or both). The letter will be signed by the Executive Director and given to the staff member 12 months before the expiration date of the current contract.’

 Background to the dispute

14      On 1 August 2006, the applicant, Mr Kari Wahlström, was recruited by Frontex as a temporary agent within the meaning of Article 2(a) of the CEOS, for a renewable period of five years. He was initially appointed Head of Unit of Administrative Services of Frontex and classified at grade A 12, step 2. In 2007, the reclassification of the applicant as grade A 13 was considered but did not take place.

15      In early 2008, an additional level of supervision, consisting of divisions, headed by directors of divisions, was created between the units and the Executive Director. In spring 2008, a selection procedure for the middle management posts of directors of divisions was launched. The applicant, encouraged by the Executive Director to take part in that procedure, applied for the post of Director of the Administrative Division. That application was unsuccessful, as Mr C. was selected to occupy that post.

16      Following an internal selection procedure, and in accordance with an addendum to his contract, signed on 22 June 2010, the applicant was appointed Head of Frontex’s Operational Office (‘the FOO’) in Piraeus (Greece) with effect from 1 August 2010. His duties as Head of Unit of Administrative Services had in the meantime been transferred, as of June 2010, to the Director of the Administrative Division, Mr C., who, in that capacity, was also his immediate superior.

17      As regards the appraisal of the applicant’s professional performance, an appraisal report was finalised in November 2009 in respect of 2008, namely when the applicant was Head of Unit of Administrative Services. In that report, the Director of the Administrative Division, Mr C., the applicant’s immediate superior and, in that capacity, his reporting officer, and the Deputy Executive Director, acting as countersigning officer, assessed the applicant’s performance at level III in respect of the five levels provided for in the appraisal reports used by Frontex, since, in their view, he had ‘partly met expectations with regard to efficiency, ability and conduct in the service’. By contrast, in the following appraisal report, which was finalised on 23 June 2010 in respect of the year 2009, the same reporting officer and the same countersigning officer rated the applicant’s performance at level II, as he had, in their view, ‘fully met expectations with regard to efficiency, ability and conduct in the service’. Lastly, on 23 February 2011, a draft appraisal report covering the year 2010 was sent to the applicant, in which the reporting officer and the countersigning officer, who had changed and who were, respectively, the Deputy Executive Director and the Executive Director, assessed the applicant’s performance at level III. 

18      On 28 April 2011, the applicant appealed against the draft appraisal report for 2010 to the Joint Appraisal Committee established by Article 13 of the decision of 27 August 2009 (see paragraph 9 above). On 13 June 2012, that committee issued its opinion, in which it concluded that ‘with regard to the lack of objectives set in the [report] as well as insufficient documentation to sustain some of the conclusions’, there was a need for ‘improvement regarding the [impartiality] and [objectivity]’ of the report and that ‘due to the [applicant’s] long period of sick leave in 2011 and the resulting difficulty [in carrying out] all steps of the appraisal … procedure, … on the one hand … the appropriate procedure [was not] followed, however on the other hand [the Joint Appraisal Committee could not] assign clear responsibility for this to [the reporting officer] and/or [the countersigning officer]’. That report was forwarded to the applicant on 25 June 2012.

19      By email of 11 July 2012, the applicant was informed that the countersigning officer had decided to confirm the appraisal report in respect of 2010 and not to make any amendment to it. The applicant brought proceedings to challenge that report before the Civil Service Tribunal of the European Union, which, by judgment of 9 October 2013, Wahlström v Frontex (F‑116/12, EU:F:2013:143), dismissed the action. That judgment was the subject of an appeal before the General Court, which, by judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), set aside the judgment of the Civil Service Tribunal and the appraisal report in question, on the ground that the report was vitiated by illegality owing, first, to the absence of annual dialogue between the reporting officer and the applicant, and, secondly, of the absence of objectives for the first half of 2010 and formal dialogue on setting objectives for the second half of the 2010. Moreover, the Court granted the applicant compensation of EUR 2 000 by way of compensation for non-material damage, holding that the irregularity of the appraisal report could not easily be rectified and that there would still be a doubt as to the performance that the applicant could have demonstrated if objectives had been set for him. According to the General Court, it was no longer possible to set objectives retroactively for the applicant who, moreover, was no longer an employee of Frontex.

20      Furthermore, as regards the renewal of the applicant’s contract as a member of the temporary staff, which was due to expire on 31 July 2011, the Human Resources Department asked the applicant, by email of 22 July 2010, whether he was interested in the renewal of his contract, in order to ascertain whether it was necessary to ‘start the renewal process 12 months in advance’, as provided by the Guidelines. By email of the same date, the applicant responded in the affirmative, stating that he was ‘more than ever interested ... by the current missions, the circumstances and future prospects [of the position], which would [allow him] to serve Frontex taking advantage of [his] training as coast guard and of [his] 20 years of experience in the field of borders’ management’. The Human Resources Department replied to the applicant immediately, by return of email, that it was going to ‘launch’ the contract renewal process and that a decision could be expected in that regard by the end of September or beginning of October 2010.

21      During a meeting on 9 December 2010, the Executive Director, in his capacity as the authority empowered to conclude contracts of employment of Frontex (‘the AECE’), informed the applicant of his intention not to renew the applicant’s contract. The following day, in accordance with the recommendation of the Deputy Executive Director, who, in his capacity as the applicant’s reporting officer, had stated, in the form for the renewal of the 2010 contract, that his professional performance over the last four years had not met expectations, the Executive Director formally adopted the decision not to renew the applicant’s contract (‘the first decision not to renew’). That decision was notified to the applicant on 16 December 2010. As his contract was not renewed, the applicant left Frontex.

22      The first decision not to renew was subject to a pre-litigation administrative procedure, then challenged by the applicant before the Civil Service Tribunal which, by judgment of 30 January 2013, Wahlström v Frontex (F‑87/11, EU:F:2013:10), annulled that decision on the ground of infringement of essential procedural requirements, having found that the procedure for the renewal of the applicant’s contract had been vitiated by a lack of competence on the part of the reporting officer who was consulted. Following that annulment, the Executive Director of Frontex, in his capacity as AECE, adopted, on 19 February 2013, a decision not to renew the applicant’s contract (‘the second decision not to renew’), which was notified to the applicant on 22 February 2013, with the new contract renewal form completed by the reporting officer and the countersigning officer (‘the 2013 form’).

23      The second decision not to renew was subject to a pre-litigation administrative procedure, then challenged by the applicant before the Civil Service Tribunal which, by judgment of 17 September 2014, Wahlström v Frontex (F‑117/13, EU:F:2014:215), annulled that decision on the ground that the applicant’s rights of defence had been infringed, as he was not heard before the adoption of the decision not to renew his contract.

24      Following that annulment, Frontex reopened the renewal procedure for the third time. The applicant was sent the recommendation regarding his renewal on the 25 May 2015, and met in person with the Executive Director on 8 June 2015 in order to express his views on the renewal of his contract. On 9 June 2015, the Executive Director adopted, on the basis of a new form of renewal of the temporary contract (‘the 2015 form’), the decision not to renew the applicant’s contract, which decision was notified to the applicant by letter of 26 June 2015 (‘the contested decision’), that is, before the delivery of the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), having annulled the applicant’s appraisal report for the year 2010 (see paragraph 19 above).

25      On 25 September 2015, the applicant submitted a complaint against the contested decision, which was rejected on 22 January 2016.

 Procedure

26      By application lodged at the Registry of the Civil Service Tribunal on 28 April 2016, the applicant brought an action which was registered as Case F‑21/16.

27      The defence was lodged by Frontex at the Registry of the Civil Service Tribunal on 9 August 2016.

28      Pursuant to Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), Case F‑21/16 was transferred to the General Court in the state in which it was found as at 31 August 2016. That case was registered as Case T‑591/16 and assigned, on 8 November 2016, to the Sixth Chamber of the Court.

29      On 9 January 2017, the applicant lodged a reply at the Court Registry.

30      On 13 February 2017, pursuant to Article 27(3) of the Rules of Procedure of the General Court, the case was reassigned to the Ninth Chamber.

31      On 27 February 2017, Frontex lodged a rejoinder at the Court Registry.

32      The written procedure was closed on 8 March 2017.

33      Since the parties had not requested a hearing under Article 106(1) of the Rules of Procedure, the General Court (Ninth Chamber), considering that it had sufficient information available to it from the material in the file, decided to rule on the action without an oral part of the procedure, in accordance with Article 106(3) of the Rules of Procedure.

 Forms of order sought

34      The applicant claims that the Court should:

–        annul the contested decision;

–        order Frontex to pay him damages to compensate for the loss of income due to the failure to renew his contract for a period of five years, as well as the corresponding lost pension rights;

–        order Frontex to pay the costs.

35      Frontex contends that the Tribunal should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

36      In support of his main head of claim seeking the annulment of the contested decision, the applicant put forward three pleas in law. The first plea alleges breach of the duty of care and of the provisions contained in the 2015 form. The second plea alleges the unlawful use, as a basis for the contested decision, of the staff report for 2010, which was annulled by the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652). The third plea alleges a manifest error of assessment relating to the existence of a contradiction in the reasons stated in the appraisal report for 2009 and in the 2015 form. Furthermore, as regards the second head of claim, the applicant seeks compensation for loss of earnings for the period during which his contract would have been renewed, including the corresponding pension rights which he has lost.

 The claim for annulment

 Admissibility

37      First, the defendant contends that, in view of the unlikelihood of the applicant’s reinstatement at Frontex, the action should regarded as ‘having an essentially pecuniary purpose’. Secondly, as regards the second and third pleas, it alleges there is a doubt about the admissibility of those pleas in so far as the applicant attempts, by those pleas, to challenge the assessments of his performance in the appraisal reports for 2009 and 2010 which are, at this stage, definitively fixed. The 2009 report was not challenged by the applicant within the time limits and the annulment of the appraisal report for 2010, by the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), was ordered for reasons of procedure which did not affect its content, and which therefore remained definitively fixed and validly formed the basis of the contested decision.

38      First, the applicant counters that Frontex’s assertion that the action should be considered as ‘having an essentially pecuniary purpose’ is unfounded. He submits that the claim for compensation for the damage arising from the loss of income has no bearing on the admissibility of his action for annulment of the contested decision. Secondly, he submits, in essence, that his action is not intended to challenge the content of the appraisal reports in question. As regards the 2010 appraisal report, he disputes that Frontex can use it to justify the contested decision on the ground that that report, annulled with retroactive effect by the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), has disappeared from the legal order as if it had never existed. As regards the 2009 appraisal report, the applicant states that he does not dispute its content, but the incorrect interpretation of that content which appears in the contested decision, which constitutes a manifest error of assessment.

39      In the first place, it should be noted that, although Frontex stressed the essentially pecuniary nature of the action, it does not draw any conclusion from this with regard to the admissibility of the latter.

40      In the second place, on the one hand, it should be noted that the applicant, as he correctly states in his second plea, does not seek to contest the content of the appraisal report for 2010, but rather the use of that report as the basis for the contested decision. In other words, in so far as the applicant considers that the report in question has disappeared from the legal order as a result of its annulment by the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), he argues that the contested decision is unlawful in so far as it is based on that report. Accordingly, the second plea is admissible in that it seeks to challenge the legality of the contested decision and not the content of the appraisal report for 2010.

41      On the other hand, it should be noted that, contrary to what Frontex asserts, the applicant does not seek to contest, out of time, the content of the appraisal report for 2009. The applicant seeks to demonstrate that the contested decision has misinterpreted that report and is therefore vitiated by a manifest error of assessment. Accordingly, the third plea is admissible in so far as it challenges the legality of the contested decision and not the content of the appraisal report for 2009.

42      In the light of the foregoing, it is necessary to reject the plea of inadmissibility raised by Frontex against the second and third pleas, which are based on a misreading of those pleas, and to declare the action admissible.

 Substance

43      By its first plea, the applicant maintains that Frontex, when adopting the contested decision, failed to observe its duty of care in so far as it failed to take into account all the information available concerning his file. By his second plea, he claims that the contested decision is unlawful on the ground that it is based on an appraisal report for 2010 which was annulled by the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652). Finally, by his third plea, he claims that the contested decision is vitiated by a manifest error of assessment, in that it is based on a misinterpretation of the appraisal report for 2009.

44      Frontex disputes the pleas and arguments raised by the applicant.

45      As a preliminary point, it should be recalled that, according to the settled case-law, a member of the temporary staff with a fixed-term contract has, in principle, no right to the renewal of his contract, which is merely a possibility and subject to the condition that it is in the interests of the service (see judgment of 13 June 2012, Davids v Commission, F‑105/11, EU:F:2012:84, paragraph 36 and the case-law cited).

46      By contrast with officials, whose security of tenure is guaranteed by the Staff Regulations, members of the temporary staff are subject to different conditions based on the contract of employment entered into with the institution concerned. It is apparent from Article 47(1)(b) of the CEOS that the duration of the employment relationship between an institution and a member of the temporary staff engaged for fixed period is, necessarily, governed by the conditions laid down in the contract concluded between the parties (judgment of 13 June 2012, Davids v Commission, F‑105/11, EU:F:2012:84, paragraph 37). Furthermore, it is equally settled case-law that the administration has a broad discretion with regard to the renewal of a contract (see judgment of 13 June 2012, Davids v Commission, F‑105/11, EU:F:2012:84, paragraph 38 and the case-law cited; see also, by analogy, judgment of 19 February 2013, BB v Commission, F‑17/11, EU:F:2013:14, paragraph 58 and the case-law cited).

47      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 an 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 Courts of the European Union must be limited to ascertaining that there has been no 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 and that there has been no breach of the duty to have regard for the interests of staff which is incumbent on an administration when it is called upon to decide on the renewal of a contract between itself and one of its staff (see order of 15 April 2011, Daake v OHIM, F‑72/09 and F‑17/10, EU:F:2011:47, paragraph 41 and the case-law cited). Furthermore, the Court reviews whether the administration committed material inaccuracies (see, to that effect, judgment of 16 May 2018, Barnett v EESC, T‑23/17, not published, EU:T:2018:271, under appeal, paragraph 38 and the case-law cited).

48      It is therefore the task of the Court, in the context of the pleas in law put forward by the applicant, to ascertain whether the administration made a manifest error in assessing the factors on which it relied when adopting the contested decision. In the context of a broad discretionary power which the administration is recognised as having, as in the present case, establishing that the administration made a manifest error in assessing the facts, such as to justify the annulment of the decision adopted on the basis of that assessment, presupposes that the evidence, which the applicant must produce, is sufficient to render the factual assessments used by the administration implausible (see judgment of 19 February 2013, BB v Commission, F‑17/11, EU:F:2013:14, paragraph 60 and the case-law cited).

49      In that regard, an error may be said to be manifest only where it may easily be detected in the light of the criteria to which the legislature intended the exercise by the administration of its broad discretion to be subject. Consequently, in order to establish that a manifest error was made in the assessment of the facts such as to justify the annulment of a decision, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings upheld by the administration in its decision implausible. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the contested assessment may still be accepted as true or valid (see, to that effect, judgment of 16 May 2018, Barnett v EESC, T‑23/17, not published, EU:T:2018:271, under appeal, paragraph 38 and the case-law cited).

50      It should be added that, according to settled case-law, the duty of care and the principle of good administration imply, in particular, that when the competent authority takes a decision concerning the situation of an official or other staff member, even in the exercise of a broad discretion, it should take into consideration all the factors which may affect its decision. When doing so, it must take into account not only the interests of the service but also those of the official or staff member concerned. Precisely because of the extent of the discretion which the institutions have in evaluating the interest of the service, review by the Courts of the European Union must however be limited to the question whether the competent authority remained within reasonable bounds and did not use its discretion in a manifestly incorrect way (see, to that effect, judgment of 19 February 2013, BB v Commission, F‑17/11, EU:F:2013:14, paragraph 61 and the case-law cited).

51      It is in the light of the foregoing considerations that it is necessary to examine the arguments put forward by the applicant in support of the pleas he raises.

–       The first plea in law

52      In the context of his first plea, the applicant alleges that Frontex failed to fulfil its duty of care on the ground that it did not respect the provisions contained in the 2015 form and did not take into account the period between 2006 and January 2009, when the contested decision was adopted. Therefore, the appraisal of the applicant only partly reflects his performance. The applicant does not dispute the failure to take into account the staff report for 2008. However, he claims that, in so far as no appraisal exercise had been carried out during 2006 and 2007, the administration was required to supplement the information available to it by consulting the personal file concerning him. In that regard, the applicant submits that the probationary report concerning his performance in the service during the first six months of 2006 should have been given ‘particular value to assess his performance’. However, neither that report nor any other element which could be relevant for the purposes of establishing his performance within Frontex was reviewed at the time of adoption of the contested decision.

53      Frontex contends, first, that it is simply a fact that the period of 2006 to 2007 was not assessed and that, while the applicant claims that other elements could have been taken into account by the administration, he does not provide any evidence of his performance for the period from 2006 to 2007. Next, Frontex adds that it was the applicant’s responsibility to request an appraisal report for the years 2006 and 2007 and that, having failed to do so, he was now ‘out of time’. Furthermore, the probationary report would be of limited value for the assessment of the applicant’s performance, as that report would only establish whether the staff member should be kept in service at the end of the probationary period of six months. Furthermore, Frontex emphasises that the failure to take into account the appraisal report for 2008 was in the applicant’s interest. First, Frontex had undertaken not to take into account the assessment exercise for 2008 in respect of all Frontex staff and, secondly, as regards the applicant, the appraisal report for 2008 was not favourable to him. Finally, Frontex points out that the contested decision is based on the reports drawn up for 2009 and 2010.

54      As a preliminary point, it is important to recall that the duty of care imposes on the administration, which is required to take a decision affecting a staff member, an obligation to take into account both the interests of the service and those of the staff member, by gathering all relevant information (see paragraph 50 above).

55      In this regard, it follows from the first paragraph of Article 43 of the Staff Regulations, applicable to members of the temporary staff pursuant to Article 15(2) of the CEOS, that the administration must ensure that reports are drawn up periodically on the ability, efficiency and conduct in the service of each official, both for reasons of sound administration and to safeguard the interests of officials (see, to that effect, judgment of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 49).

56      The appraisal reports constitute written and formal evidence of the quality of the work performed by the staff member during the period under review (see, to that effect, judgment of 13 March 2013, AK v Commission, F‑91/10, EU:F:2013:34, paragraph 60).

57      It is apparent from the wording of Article 14(3) of the CEOS that the purpose of the probationary report is to assess the ability of the staff member to perform the duties pertaining to his post, his efficiency and conduct in the service (see paragraph 5 above).

58      That said, in order to assess whether Frontex, in order to comply with the duty of care, should have compensated for the failure to take account of the years 2006, 2007 and 2008 and supplemented the information at its disposal by consulting the personal file concerning the applicant, by giving the probationary report concerning his performance in the service during the first six months of 2006 ‘particular value to assess his performance’, the following observations should be made.

59      In the first place, it should be noted that the applicant was recruited by Frontex as a member of the temporary staff under Article 2(a) of the CEOS, for a renewable period of five years from 1 August 2006. He was initially appointed Head of Unit of Administrative Services of Frontex and classified at grade A 12, step 2 (see paragraph 14 above). Then, following an internal selection procedure and in accordance with an addendum to his contract, signed on 22 June 2010, the applicant was appointed Head of the FOO (see paragraph 16 above). On his appointment on 1 August 2006, he completed a six-month probationary period in accordance with Article 14 of the CEOS. 

60      In the second place, the contested decision was adopted on the basis of the 2015 form which, as the applicant points out, states, in Section 3, that the performance of the member of temporary staff concerned must be assessed on the basis of the period during which he was employed by the agency. In that regard, as Frontex rightly points out, the contested decision is the first non-renewal decision adopted in December 2010, so that the period to be taken into account to assess the applicant’s performance was the first four years of his employment by Frontex, namely from 2006 to 2010. However, Frontex itself states that the contested decision only takes into account the appraisal reports drawn up for 2009 and 2010 (see paragraph 53 above). The contested decision is based on the proposal not to renew the applicant’s contract contained in the 2015 form which, in Section 3, refers only to the applicant’s performance appraisal reports for 2009 and 2010.

61      In the third place, as is apparent from the reply to the complaint, in the absence of appraisal reports for 2006 and 2007, the applicant’s performance in those years was not taken into account. Furthermore, as regards 2008, the decision rejecting the complaint states that, notwithstanding the fact that an appraisal report has been drawn up, attributing to the applicant a performance level of III in respect of the five levels provided for, that report was not taken into account in the contested decision, on the ground that Frontex itself, by an email of 29 April 2009, stated that there would be no negative consequences for staff members as a result of the appraisal for 2008. Furthermore, the appraisal report for 2008 was part of a pilot exercise, which, as regards the applicant, took into account only the period from September to December 2008.

62      Thus, first of all, it must be noted that the contested decision took into account the last two years, 2009 and 2010, which were the only ones for which appraisal reports of the applicant’s performance had been validly established. More specifically, the contested decision was adopted on the basis of the 2015 form, which, due to the reiteration of the comments in the 2013 form, reflected the knowledge that the previous reporting officer had of the applicant until the first half of 2010.

63      Next, it should be pointed out that the fact that Frontex had a limited number of elements to take into account when adopting the contested decision, having regard to its wide discretion, cannot give rise to an obligation on the part of Frontex to take into account the applicant’s probationary report for that purpose.

64      In so far as Frontex, first, took into account, in particular, the applicant’s appraisal report for 2009 and, secondly, did not rely on the 2008 report, which contained an assessment and comments which were not favourable to the applicant, he cannot claim that it failed to take into account his interests in accordance with the duty of care as specified by the case-law cited in paragraphs 50 and 54 above.

65      In so far as it is relevant, it should be noted, first, that the applicant’s probationary report concerned, in the present case, a trial period of six months of the four relevant years. Secondly, that probationary period fell mainly in 2006 and then the applicant worked for several years before the start of his contract renewal procedure. Thirdly, in so far as that probationary period took place at the beginning of his employment relationship, its relevance to the assessments contained in the appraisal reports, concerning the years which are closer to the start date of the renewal procedure, is necessarily very limited. Fourthly, the appraisal of the efficiency, abilities and conduct of the applicant in the first six months of his temporary staff contract, contained in the probation report, cannot be equated, substitute or compensate the appraisal carried out in the framework of an annual appraisal report intended to assess whether, in the light of the objectives set in agreement with the applicant, the latter met expectations, and to thus establish the level of his performance.

66      Finally, in any event, the applicant did not produce the probation report in question before the Court and therefore fails to establish that the content of that report could have led to a different decision regarding the renewal of his contract.

67      In the light of the foregoing, the fact that Frontex did not take into account the probation report when adopting the contested decision is not, in the present case, a breach of the duty of care which could lead to the annulment of that decision.

68      The complaint that Frontex breached its duty of care by reason of the failure to take into account the probation report must therefore be rejected.

69      As regards the complaint that Frontex breached its duty of care by not supplementing the information concerning the applicant on the basis of his personal file, that complaint does not specify, in the context of the first plea, which elements Frontex, in his view, should have taken into account. Consequently, that complaint must be rejected as unsubstantiated.

70      In any event, assuming that the elements, other than the probationary report, which could have been taken into account for the purposes of the decision on the renewal of the contract are those mentioned in the third plea, namely the fact that he was encouraged by the Executive Director to apply for the post of Administrative Director and the fact that he was recruited to the post of Head of the FOO with effect from 1 August 2010 (see paragraph 16 above), the following observations should be made.

71      First, as regards the encouragement of the Executive Director to apply for the post of Administrative Director, even if it were established, it cannot be argued that compliance with the duty of care implies taking into account mere encouragement, even when it is from an Executive Director. Such encouragement is not sufficient to demonstrate the professional skills and abilities that should be taken into account when adopting a decision on the renewal of a contract.

72      Secondly, with regard to the failure to take into account the applicant’s recruitment to the post of Head of the FOO (see paragraph 16 above), it should be noted, clearly, that that recruitment indicates that the applicant was the candidate who was considered to best meet the conditions required by the post to be filled. However, that recruitment is not sufficient, in itself, to demonstrate the level of the applicant’s performance as Head of the FOO. Accordingly, the failure to take into account that recruitment does not entail a breach of the duty of care.

73      In the light of all the foregoing observations, the first plea must be dismissed.

–       The second plea in law

74      By his second plea, the applicant submits that the use of the appraisal report for 2010 as the basis for the contested decision is unlawful on the ground that that report was annulled by the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), and accordingly has never had any legal existence. He states that the report in question was cancelled due to errors affecting its content and not due to a ‘mere procedural mistake’. The unlawfulness of that report, he claims, arises from the failure to set objectives for 2010, which, according to the Court, would render it currently impossible to adequately assess the applicant’s performance during that year.

75      Frontex contends that the content of the 2010 report is definitively established notwithstanding its annulment by the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652). According to Frontex, the annulment of the appraisal report for 2010, which occurred after the adoption of the contested decision, has no effect on the legality of that decision since that annulment was ordered on procedural grounds, namely, first, the lack of evidence of sufficient dialogue with the reporting officer and, secondly, the failure to set objectives for the first half of 2010 in the appraisal file itself and the absence of formal dialogue with the reporting officer on the objectives set for the second half of 2010. Frontex points out that the General Court, ruling in an appeal, did not rule on the ground of appeal which sought to challenge the validity of the reasoning of the appraisal report for 2010 and which had been rejected by the judgment of 9 October 2013, Wahlström v Frontex (F‑116/12, EU:F:2013:143). Thus, the content of the appraisal report for 2010 became definitive and was validly used as a basis for the contested decision.

76      At the outset, it should be recalled, first, that the annulment of an act by the Courts has the effect of retroactively eliminating that act from the legal order (see judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84 and the case-law cited).

77      Moreover, pursuant to Article 266 TFEU, the institution whose act has been declared void is required to take the necessary measures to comply with the annulment judgment.

78      Frontex is therefore required, under that provision, to take the necessary measures to cancel the effect of the irregularities noted in the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652) (see, to that effect, order of 29 June 2005, Pappas v Committee of the Regions, T‑254/04, EU:T:2005:260, paragraph 37 and the case-law cited, and judgment of 12 April 2016, CP v Parliament, F‑98/15, EU:F:2016:76, paragraph 59 and the case-law cited).

79      Where the annulled act has already been implemented, the cancellation of its effects requires, in principle, that the legal situation in which the applicant found himself before the adoption of that act be reinstated (see judgment of 31 March 2004, Girardot v Commission, T‑10/02, EU:T:2004:94, paragraph 84 and the case-law cited).

80      In order to comply with a judgment annulling an act and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what was stated in the operative part. It is those grounds which, on the one hand, identify the exact provision held to be illegal and, on the other, indicate the exact reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled act (judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 27; of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 29; and of 13 September 2005, Recalde Langarica v Commission, T‑283/03, EU:T:2005:315, paragraph 50).

81      Article 266 TFEU requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (see judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 43 and the case-law cited).

82      It must be pointed out, finally, that Article 266 TFEU requires the institution whose act has been declared void only to take the necessary measures to comply with the judgment annulling that act. The procedure for replacing such an act may thus be resumed at the very point at which the illegality occurred (see judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 44).

83      Admittedly, according to the case-law, following the annulment of an administrative act, its author must adopt a new replacement act by reference to the date on which it had been adopted, on the basis of the provisions in force and the relevant facts at that time. That author may, however, rely, in its new decision, on grounds other than those on which it based its first decision (see judgment of 17 May 2017, PG v Frontex, T‑583/16, not published, EU:T:2017:344, paragraph 45 and the case-law cited). However, as regards the appraisal report for 2010, annulled by the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), the Court expressly stated that, having regard to the circumstances of the present case, it was impossible to remedy the unlawfulness found by adopting a new appraisal report for that year (see paragraph 19 above).

84      In the light of the above principles and considerations, it is appropriate to examine whether, as the applicant claims, in accordance with the retroactive and binding effect of the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), the contested decision is unlawful in that it could not take into account the appraisal report for 2010.

85      In the first place, as regards the scope of the annulment handed down by the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), it is clear from paragraph 78 of that judgment that the appraisal report for 2010 was unlawful due, first, to the absence of annual dialogue between the reporting officer and the applicant and, secondly, due to the failure to set objectives for the first half of 2010 and the absence of formal dialogue on setting objectives for the second half of 2010.

86      First, as regards the ground of annulment alleging lack of annual dialogue between the reporting officer and the applicant, in paragraphs 21 to 34 of the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), the Court first recalled that, for a procedural irregularity to result in the annulment of an act, it must be established that, had it not been for that irregularity, the outcome of the procedure might have been different. Next, it cited the case-law according to which, without a direct exchange between the reporting officer and the staff member under appraisal, the assessment cannot entirely fulfil its function as a human resources management tool and as an instrument to monitor the professional development of the official concerned (judgment of 18 September 2015, Wahlström v Frontex, T‑653/13 P, EU:T:2015:652, paragraph 25). In addition, it noted that, since an appraisal report is based on subjective value-judgments which are therefore, by their very nature, liable to be changed, if the applicant had been heard before the report had been drawn up, as part of a dialogue, he would have been able to make his views known, and thus perhaps alter the assessments set out in that report (judgment of 18 September 2015, Wahlström v Frontex, T‑653/13 P, EU:T:2015:652, paragraph 27).

87      Secondly, as regards the grounds of annulment alleging the failure to set objectives for the first half of 2010 and the lack of formal dialogue on setting objectives for the second half of 2010, the Court, in paragraphs 44 to 51 and 54 to 72 of the judgment of 18 September 2015, Wahlström v Frontex (T‑653/13 P, EU:T:2015:652), recalled, first, that according to the case-law, the infringement of the rules requiring the setting of objectives for an official at the beginning of each appraisal period is substantial and warrants a declaration that the contested appraisal report is unlawful. Next, it noted that, in so far as the purpose of the appraisal report for 2010 was to evaluate the efficiency, abilities and conduct in the service of the applicant not only as Head of the FOO, from 1 August 2010, but also as Head of Unit of Administrative Services for the period from 1 January 2010 until 1 August 2010, the lack of objectives for that part of 2010 had, in fact, deprived the applicant of the opportunity to obtain a better overall appraisal for the whole of 2010. It therefore held that the failure to set objectives for the first half of 2010, concerning the duties of Head of Unit of Administrative Services, constituted a substantial procedural error. Finally, the Court held that the applicant’s objectives for the second half of the year 2010 should have been set, when changing his duties, in the context of a formal dialogue with his reporting officer. Consequently, the absence of a formal dialogue between the reporting officer and the applicant on the objectives set for the second half of 2010 constituted a procedural irregularity.

88      The grounds for annulment, set out above, make it possible to understand that the appraisal report for 2010 was vitiated, in particular, by substantial procedural irregularities and that those irregularities corresponded to breaches of essential procedural requirements that could affect the content of the report. Frontex cannot therefore argue that the content of the appraisal report for 2010 became definitive, since the Court expressly recognised that, in the absence of irregularities, the report might have been different. In that regard, it should be added that the compensation of EUR 2 000, granted by the General Court to the applicant to compensate for the non-material damage relating to the doubt which remained as to the performance that he could have demonstrated if objectives had been set for him initially (judgment of 9 October 2013, Wahlström v Frontex, F‑116/12, EU:F:2013:143, paragraph 84), cannot allow Frontex to argue that the content of the appraisal report for 2010 became definitive, or that it was used validly for the purposes of adopting the contested decision. The compensation for damages was granted precisely because the content of the report did not enable assessment of the applicant’s performance for 2010 and because it was impossible, as the applicant had ceased his activity within Frontex, to remedy the situation by retrospectively setting objectives for him or organising a formal dialogue concerning such objectives.

89      In the second place, it should be noted that, according to case-law, a judgment ordering annulment has retroactive effect, which implies that the finding of unlawfulness takes effect from the date on which the annulled act entered into force, so that, in the present case, the annulment of the appraisal report for 2010 is retroactive to the date of its adoption (see, to that effect, judgment of 18 September 2015, Wahlström v Frontex, T‑653/13 P, EU:T:2015:652, paragraph 31 and the case-law cited). Consequently, at the date of adoption of the contested decision, namely 26 June 2015, the appraisal report for 2010 had disappeared from the legal order of the European Union.

90      In the light of the foregoing, it must be held that the second plea is well founded and the contested decision is vitiated by an error in so far as it takes account of the appraisal report for 2010.

91      However, in so far as, in the present case, the appraisal report is only a document containing the factors taken into account for the purpose of adopting the contested decision and does not directly constitute a ground for that decision, it is appropriate, in order to assess the consequences of that error, to ascertain to what extent the impossibility of taking that report into account is likely to affect the grounds of the contested decision, which could continue to be validly based on the factual elements contained in the appraisal report for 2009.

92      It follows that, in order to establish whether the error resulting from taking into account the appraisal report for 2010 could lead to the annulment of the contested decision, it is necessary to examine the third plea and thus to assess, in the context of that plea, first, whether the grounds of that decision contradict the elements contained in the appraisal report for 2009 and, secondly, whether it is apparent from the grounds of the contested decision that, despite its reference to the appraisal report for 2010, it remains validly based solely on the appraisal report for 2009, so that the impossibility of taking into account the appraisal report for 2010 cannot lead Frontex to adopt a different decision, as that impossibility does not render implausible the assessments that it made in the contested decision. In other words, the error found in paragraph 90 above would be ineffective and accordingly would not be sufficient to warrant annulment of the contested decision if, in the particular circumstances of the case, it could not have had a decisive effect on the outcome of the contested decision (see, to that effect and by analogy, judgment of 14 May 2002, Graphischer Maschinenbau v Commission, T‑126/99, EU:T:2002:116, paragraph 49 and the case-law cited).

–       The third plea in law

93      In his third plea, the applicant claims that the contested decision contains a manifest error of assessment. That error, it is claimed, stems from a contradiction in the reasons stated in the appraisal report for 2009 and in the 2015 form that served as the basis for the contested decision. The appraisal report for the year 2009, it is claimed, indicated that the applicant ‘fully met expectations with regard to efficiency, ability and conduct in the service’, while the 2015 form, based on that report, indicated that the applicant did not possess the necessary basic, key and priority competences for the post occupied by him. According to the applicant, the documents in question, while based on the same elements of assessment, namely the criticisms levelled against the applicant in the 2009 appraisal report, lead to opposite results. Despite those criticisms, the reporting officer, as part of the appraisal report for 2009, concluded that the applicant’s performance was satisfactory, whereas those same criticisms led the reporting officer to conclude, in the 2015 form, that the applicant’s performance was unsatisfactory. Likewise, in the appraisal report for 2009, the reporting officer stated that the applicant understood all the aspects related to his job and that he was familiar with the Frontex rules, procedures and tools, while in the 2015 form, the reporting officer stated that the applicant did not possess the necessary basic, key and priority competences for the post occupied by him.

94      Frontex counters that the contested decision can be validly based solely on the appraisal report for 2009. The fact that the reporting officer, in the appraisal report for 2009, had been able to rate the applicant’s performance at level II does not, it contends, in any way preclude the administration from deciding not to renew his contract, in so far as each of the negative comments contained in the report in question raises serious doubts about the renewal of the applicant’s contract. Finally, according to Frontex, there is no contradiction between the assessment contained in the appraisal report for 2009 and the 2015 form that served as the basis for the contested decision.

95      In that regard, it is apparent from the case-law that the administration has a broad discretion with regard to the renewal of a contract and that review by the Courts must be limited to ascertaining whether, regard being had to the factors and reasons that led the administration to its assessment, it remained within unimpeachable limits and did not manifestly misuse its power (see paragraph 47 above).

96      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 broad 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, it is contended that 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 judgment of 11 July 2012, AI v Court of Justice, F‑85/10, EU:F:2012:97, paragraph 153 and the case-law cited).

97      Furthermore, while the reporting officers have a wide discretion when judging the work of people whom they are responsible for assessing, it is important to note, however, that respect for the rights guaranteed by the European Union legal order is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case and the right of the person concerned to make his views known and to have an adequately reasoned decision. Only in that way are the Courts of the European Union able to ascertain whether the elements of fact and of law on which the exercise of the discretion depends were present. It follows that the purpose of the optional comments accompanying the assessments set out the analytical grid is to justify those assessments, in order to enable the applicant to assess their merits in full knowledge of the facts and, where appropriate, to enable the Court to carry out its review. Such a review, although limited, implying that assessments which are less favourable than those in the previous appraisal report must be justified by the reporting officer, also requires consistency between those assessments and the comments intended to justify them (see, to that effect, judgment of 21 October 1992, Maurissen v Court of Auditors, T‑23/91, EU:T:1992:106, paragraph 41). That case-law is applicable, by analogy, to the situation where, as in the present case, the General Court is called upon to examine whether there is a manifest error of assessment resulting from the contradiction between two separate acts, one of which was adopted on the basis of the information included in the other.

98      In the present case, at the outset, it is important to note that the Executive Director, who adopted the contested decision, decided not to renew the applicant’s contract, stating that he had taken into account all the available information, including the applicant’s personal file. The reporting officer expressly stated, in the 2015 form, that his assessment of the applicant’s performance was based on the comments of the previous reporting officer, contained in the 2013 form, which could still be used despite the fact that it had formed the basis for the second non-renewal decision annulled by the judgment of 17 September 2014, Wahlström v Frontex (F‑117/13, EU:F:2014:215), on the ground of infringement of the applicant’s rights of defence (see paragraph 23 above).

99      Next, it should be noted that Section 3 of the 2015 form refers to appraisal reports for 2009 and 2010.

100    The appraisal report for 2009 consists of six sections. The first section contains administrative information concerning the applicant, the four following sections assess the latter regarding, respectively, the capacity to achieve the objectives set, productivity and efficiency in the service, skills and abilities and conduct in the service. The sixth and last section contains the overall assessment of the applicant’s performance. Each section provides the opportunity for the reporting officer to add a comment justifying the answers in the table corresponding to each section. In that regard, in the appraisal report for 2009, the reporting officer marked, in all the tables intended to assess efficiency (Section C), competencies and skills (Section D) and conduct (Section E) of the applicant, that he had ‘met expectations’.

101    However, as regards the capacity to achieve the objectives set (Section B), the reporting officer stated that the applicant’s performance was satisfactory in three of five categories and unsatisfactory in the remaining two categories. More specifically, the applicant’s performance was unsatisfactory as regards the aim of ensuring that the specific activities and outputs of the sectors concerned were achieved in a timely manner, on the ground that the outputs and results in the ‘Information and communication technology’ (‘ICT’) sector and in some areas related to the ‘Human Resources’ (‘HR’) sector had not been achieved (objective 4). In addition, according to the reporting officer, the applicant’s performance was unsatisfactory as regards the objective of ensuring that the specific activities and outputs of the sector of activity concerned were achieved in a timely manner, on the ground that weaknesses, such as long absences and the quality of some inputs, had been noted (objective 5). As regards the other three objectives, the applicant’s performance was considered satisfactory. However, as regards the first two objectives, the reporting officer also stated that all the sectors had been managed satisfactorily with the exception of the ICT sector (objective 1) and that the staff had been managed satisfactorily, but that difficulties had been observed in relations with certain staff members (objective 2).

102    Furthermore, in the appraisal report for 2009, the reporting officer had added two comments, one linked to productivity and efficiency in the service (Section C) and the other related to the abilities and competencies of the applicant (Section D). In his first comment, the reporting officer first indicated that the applicant’s weaknesses consisted of difficulty in identifying the services expected by Frontex in certain critical areas, prioritising and organising delivery of those services and ensuring that results are achieved, particularly in the ICT and HR sectors. Secondly, the reporting officer stressed, as strengths of the applicant, the good quality in planning documents and timely reporting. By his second comment, the reporting officer stated that the applicant was organised, educated and polite, and stated, at the same time, that difficulties had been observed in relations with other units or sectors that were important users of the services of the administrative unit. He finally pointed out persistence in taking inappropriate decisions in crucial areas such as ICT and HR, adding that the results in those areas had been affected.

103    Finally, the assessor concluded that the applicant’s performance corresponded to level II, since he had fully met expectations with regard to efficiency, ability and conduct in the service (Section F).

104    The 2015 form consists of seven sections. Sections 3 and 4 are those which are relevant in assessing whether or not there is a contradiction between that form and the appraisal report for 2009.

105    First, as indicated in paragraph 99 above, it is apparent from Section 3 of the 2015 form that reference is made to the appraisal report for 2009, according to which the applicant’s level of performance corresponded to level II, since the latter had fully met expectations with regard to efficiency, ability and conduct in the service, as well as to the appraisal report for 2010, according to which the applicant’s level of performance corresponded to level III, since he had partially met expectations as regards efficiency, ability and conduct in the service.

106    Secondly, it should be noted that Section 4 of the 2015 form contains six questions, to assess the possibility of renewing the applicant’s contract, to which the reporting officer can reply in the affirmative or in the negative, adding a comment to justify his answers. In the present case, the reporting officer gave a negative answer to all the questions and stated in the comments on the replies that he relied on the answers provided by the previous reporting officer in the 2013 form.

107    More specifically, in his comments accompanying the negative answer to the first question of Section 4 of the 2015 form, as to whether the applicant’s knowledge or skills are of particular value to Frontex which could not be easily replaced by recruiting a new person, the reporting officer stated, first, that he took account of the annulment of the second decision not to renew the applicant’s contract by the judgment of 17 September 2014, Wahlström v Frontex (F‑117/13, EU:F:2014:215), but that that annulment did not affect the merits of that decision. Next, he stated that as the applicant’s previous reporting officer had not been an employee of Frontex since 1 March 2013, he could not substitute his own discretionary opinion for the appraisal that had been made by the previous reporting officer. Thus, his assessment was based on the 2013 form only. In that regard, the reporting officer stated that, according to previous reporting officer, the skills of the applicant deriving from his experience as a coast guard in a national context were of limited usefulness for the post of Administrative Director of Frontex. Those skills could have helped the applicant to understand the needs of Frontex’s operational units. However, the internal users of the administrative unit had not been fully satisfied. As regards the applicant’s core duties, the latter had shown a limited enthusiasm to learn the basic rules of administrative management of a European Union body. Accordingly, the applicant’s level of knowledge was not up to the standards that a head of unit with four years of seniority should have. Finally, as regards his managerial skills, the applicant showed shortcomings such as lack of diplomacy and inadequate handling of conflict situations.

108    In his comments accompanying the negative answer to the second question of Section 4 of the 2015 form, as to whether the applicant was able to adapt to any developments or changes in Frontex’s future, the reporting officer first reiterated the comments made by the former reporting officer in the 2013 form, according to which the applicant had demonstrated a limited degree of adaptability. Secondly, he added that the Administrative Services Unit of Frontex no longer existed and that the FOO (now the Frontex Liaison Office, FLO) had been significantly reorganised in September 2013, that its staff had been reduced to five employees and that the head of unit post was occupied until 30 November 2018.

109    In his comments accompanying the reply to the third question in Section 4 of the 2015 form, as to what impact the loss of the applicant’s skills and experience would have had on the activities of the unit where the latter was employed, the reporting officer refers to the assessment of the previous reporting officer contained in the 2013 form. According to the previous reporting officer, within the administrative division in Warsaw (Poland), the tasks of the applicant had been handed over to the competent managers at the time, long before the applicant was posted to Greece. That reporting officer had considered that the applicant could have been more involved in the day-to-day work in Warsaw and that this showed that, even when he was head of unit in Warsaw, the consequences of the loss of his skills was limited.

110    As regards the fourth, the fifth and the sixth question in Section 4 of the 2015 form, the reporting officer merely replied in the negative and indicated that his answers were those provided by the previous reporting officer in the 2013 form. The fourth question sought to ascertain whether there were any particular projects planned by Frontex for the future which could require the specific skills and knowledge of the applicant. The fifth question sought to understand whether, having regard to the conduct criteria laid down by Frontex, there was evidence that the applicant had fallen below the highest level of integrity. The sixth question sought to ascertain whether a decision not to renew the applicant’s contract could lead to any exceptional negative personal or social consequences, such as unemployment close to retirement, that is, consequences other than those normally associated with such a decision, such as moving house, returning to the country of origin or changing school for children.

111    The 2015 form ends with the reporting officer’s proposal not to renew the applicant’s contract followed by commentary which refers to what the previous reporting officer had considered in the 2013 form. It is apparent from that commentary that the previous reporting officer had stated that his assessments reflected his knowledge of the applicant’s performance until the first half of 2010. After that period, the applicant had been assigned to the FOO in Greece. As is apparent from the 2015 form, the previous reporting officer had stated, in the 2013 form, that the reason for the proposal not to renew the applicant’s contract was the insufficient level of the applicant’s performance in terms of skills and behaviour in areas considered as basic, key and priorities for the post occupied by applicant. He further stated that the assessment prepared in 2010, concerning 2009, had shown that the applicant had not performed properly, to ensure that the specific activities and outputs expected in his sector were achieved in a timely and effective manner. He noted that the applicant had not sufficiently supported the Director of the Division as appropriate. He expressed concerns about the difficulties encountered by the applicant in building and maintaining good working relations with other units and sectors that were important users of the services of the administrative unit, and about his persistence in taking inappropriate decisions in crucial areas such as the ICT and HR sectors. According to that reporting officer, the results in those areas had been affected to some extent. He concluded his assessment by stressing that he had done his utmost to help the applicant, either by providing him with regular guidance or by carrying out some of his duties, when both he and the applicant realised that he was struggling with certain tasks under his remit as Head of Unit of Administrative Services. He mentioned, by way of example, the adoption of the Decision of the Director of the Administration Division on the New Structure and Reporting Lines in the ICT Sector of the Administrative Services Unit of 10 December 2009.

112    It follows from the above that the negative comments contained in the appraisal report for 2009 were incorporated in the 2015 form, in which they were combined with other considerations relating, first, to the interest of the service (covered by the first five questions) and, secondly, the interests of the applicant (the sixth question).

113    More specifically, first, the reasons given by the reporting officer in the first question in Section 4 of the 2015 form, that, in essence, the internal users of the administrative unit managed by the applicant as head of unit were not satisfied with the services provided by that unit (see paragraph 107 above) are based on the elements of the appraisal report for 2009 set out in the commentary accompanying the grid of answers relating to competencies and skills (Section D), which indicated that difficulties had been identified in relations with other units or sectors, which were important users of the services of the administrative unit (see paragraph 102 above).

114    Secondly, the reason given by the reporting officer in respect of the second question of Section 4 of the 2015 form, that the applicant had shown a limited level of adaptability (see paragraph 108 above), is based on the elements of the appraisal report for 2009 set out in the commentary accompanying the grid of answers relating to competencies and skills (Section D), from which it is apparent that the applicant persisted in taking inappropriate decisions in crucial areas such as the ICT and HR sectors (see paragraph 102 above). The other reasons given by the reporting officer in respect of the second question of the 2015 form, that the Frontex administrative unit no longer exists and that the FOO (FLO) was significantly reorganised in September 2013, that its staff had been reduced to five employees and that the head of unit post was occupied until 30 November 2018, are the result of considerations linked to the date on which the decision on the renewal of the applicant’s contract was to be adopted (see paragraph 108 above).

115    Thirdly, the reason given by the reporting officer in respect of the third question in Section 4 of the 2015 form, namely that, within the administrative management of Warsaw, the tasks of the applicant, long before his assignment to Greece, had been handed over to the competent directors at the time, while not directly related to the situation existing in 2009, essentially reiterates the comments made by the reporting officer in the appraisal report for 2009 (Section B of that report). In that report, the reporting officer had indicated that the applicant’s performance was unsatisfactory as regards the objective of ensuring that specific work activities and outputs of the sector of activity concerned had been achieved in a timely manner (objective 5), since weaknesses been noted, such as long absences and the quality of some inputs (see paragraph 101 above).

116    Fourthly, it should be noted that all the elements presented by the reporting officer in the general comments to justify his proposal not to renew the applicant’s contract in the 2015 form and recalled in paragraph 111 above, reiterate, in essence, the elements contained in the appraisal report for 2009.

117    Accordingly, it is appropriate to consider that, in so far as the grounds of the 2015 form, recalled in paragraphs 107 to 111 above, reiterate the elements contained in the appraisal report for 2009, there is no contradiction between those two documents. The reporting officer, in exercising his discretion, could therefore consider that the level of the applicant’s performance was insufficient, in key areas, for his contract to be renewed for an additional five years. The difference observed as regards the conclusion expressed in the 2015 form and that set out in the appraisal report for 2009 is not, contrary to what the applicant alleges, the result of an incorrect interpretation of the appraisal report in question. The reporting officer’s proposal in the 2015 form, contrary to what the applicant claims, does not exceed the limits of his discretion. Having regard to the years that have passed since the adoption of the first two decisions not to renew and given that the applicant has not been an employee of Frontex since 2011, that assessment does not appear, on the basis of the elements available to the Court, to be vitiated by a manifest error of assessment that could lead to annulment of the contested decision.

118    In so far as the 2015 form and the appraisal report for 2009 meet different requirements and given that the administration enjoys a wide margin of discretion for the purpose of adopting the two acts in question, the fact that the appraisal report for 2009 considered that the applicant had achieved a level II performance could not automatically result in the renewal of his contract.

119    When relying on the appraisal report for 2009 in the exercise of its discretion, Frontex may, without committing a manifest error of assessment, decide that the shortcomings of the applicant, identified in that report and relating to 2009, did not allow it to conclude that the applicant’s contract should be renewed, notwithstanding the fact that the appraisal report for 2009 was positive with regard to its conclusion. The fact that, in that report, the reporting officer concluded that the applicant was familiar with the rules, procedures and tools of his job does not in any way exclude that, in the context of an assessment concerning the decision whether to renew the applicant’s contract, it may be considered that, in the light of comments made to the applicant regarding his efficiency during the year 2009, the latter did not possess the necessary basic, key and priority competences to be offered renewal of his contract for a further five years.

120    It follows from all the foregoing considerations that the third plea, alleging that the contested decision is vitiated by a manifest error in that it is based on the 2015 form containing an erroneous interpretation of the 2009 appraisal report, must be rejected.

121    Furthermore, it is apparent from the 2015 form that the assessments contained therein are based mainly on the comments contained in the appraisal report for 2009, with the exception of certain considerations relating to the date on which the renewal decision was to be adopted, namely the fact that the applicant had not been an employee of Frontex for several years and that the organisation of Frontex had changed (see paragraphs 108 and 114 above). More specifically, as stated in paragraphs 113 to 116 above, the reasons given by the reporting officer in his replies to the questions set out in Section 4 of the 2015 form, and in the final comments accompanying the proposal, contained in that form, not to renew the applicant’s contract, essentially reiterate the elements contained in the appraisal report for 2009. On the other hand, the content of the appraisal report for 2010 appears to be missing from the answers to the questions on the appropriateness of proposing the renewal of the applicant’s contract, set out in Section 4 of the 2015 form, and from the reporting officer’s final comments accompanying the proposal, contained in that form, not to renew the applicant’s contract.

122    Thus, taking into account the fact that the administration has a wide margin of discretion when adopting a decision on the renewal of a contract and that the applicant does not provide sufficient evidence to render implausible the assessments made by the administration in the contested decision, it must be held that the applicant has not demonstrated that a different decision would have been adopted if the appraisal report for 2010 had not been taken into account. The reasons given for the contested decision are based on the 2015 form and reiterate the elements contained in the appraisal report for 2009.

123    It must therefore be concluded that the error stemming from the reference to the appraisal report for 2010, in so far as it relates to an element of fact and not the grounds of the contested decision, did not, in view of the circumstances of the case, vitiate the contested decision with illegality that could lead to annulment. The second plea must therefore be rejected in accordance with the case-law mentioned in paragraph 92 above.

124    Since no plea has finally succeeded, the action in so far as it seeks the annulment of the contested decision must be rejected.

 The claim for damages

125    The applicant, having considered that his action, in so far as it seeks the annulment of the contested decision, has financial consequences, requests the General Court to exercise the unlimited jurisdiction conferred on it by Article 91(1) of the Staff Regulations to order Frontex to pay him a sum corresponding to the loss of income for the duration of the renewal of his contract, including pension rights lost.

126    Frontex considers that it is not appropriate for the Court to exercise its unlimited jurisdiction and to order it to pay damages.

127    According to the case-law, in a claim for damages brought by an official or other staff member, for an institution to incur non-contractual liability for unlawful conduct, a series of conditions must be met, namely, the alleged conduct must have been unlawful, the damage must be real and a causal connection must exist between that conduct and the damage in question. If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability (judgment of 16 May 2018, Barnett v EESC, T‑23/17, not published, EU:T:2018:271, under appeal, paragraph 64).

128    In the present case, it should be noted that the claim for compensation for material damage is based on the unlawfulness of the contested decision. However, the examination of the submissions put forward in support of the claims for annulment against that decision revealed, first, that the error stemming from the appraisal report for 2010 being taken into account did not render it unlawful and did not affect the outcome of the renewal procedure and, secondly, that none of the applicant’s other complaints were well founded.

129    The applicant did not therefore satisfy at least one of the conditions required in order for Frontex to incur liability. Consequently, the claim for damages, like the claim for annulment, must also be rejected.

130    There is therefore no need for the Court to exercise its unlimited jurisdiction, without it being necessary to determine whether this dispute is of a financial character within the meaning of Article 91(1) of the Staff Regulations, as the applicant claims.

131    It follows from all the foregoing that the action must be dismissed in its entirety.

 Costs

132    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 135(1) of those rules, the General Court may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any costs.

133    It follows from the grounds set out above that the applicant is the unsuccessful party. Furthermore, Frontex expressly claimed in its pleadings that the applicant should be ordered to pay the costs. As the circumstances of the present case, however, justify the application of Article 135(1) of the Rules of Procedure, it is appropriate to order each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders each party to bear its own costs.

Delivered in open court in Luxembourg on 13 December 2018.

Table of contents

Legal framework

Background to the dispute

Procedure

Forms of order sought

Law

The claim for annulment

Admissibility

Substance

– The first plea in law

– The second plea in law

– The third plea in law

The claim for damages

Costs

*      Language of the case: English.

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