CELEX: 62016TJ0233
Appeal
Civil service
Members of the temporary staff
Contract for a fixed period with a termination clause ending the contract in the event of the temporary staff member’s name not being included on the reserve list of the next open competition
Termination of the contract pursuant to the termination clause
Reclassification of a contract for a fixed period as a contract for an indefinite period
Res judicata
Clause 5(1) of the ETUC-UNICE-CEEP framework agreement on fixed-term work
Obligation to state reasons

)
By his appeal brought pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, José Luis Ruiz Molina, seeks to have the judgment of the European Union Civil Service Tribunal (Third Chamber) of 2 March 2016,
Ruiz Molina
v
OHIM
(F‑60/15, the‘judgment under appeal’,
EU:F:2016:28
) set aside. By that judgment, the Civil Service Tribunal dismissed his claim for annulment of the decision of the Executive Director of EUIPO of 4 June 2014 to terminate his temporary staff contract on the expiry of six months’ notice.
Background to the dispute
The background to the dispute is set out in the following terms in paragraphs 13 to 29 of the judgment under appeal:
‘13
The applicant took up a post at [EUIPO] on 16 July 2001 and, from 16 July 2002, held a contract as a member of the temporary staff, on the basis of Article 2(a) of the CEOS then in force, for an initial duration of four years, or in other words until 15 July 2006.
…
Following his participation in one of the open internal selection procedures in the field of “industrial property”, and having regard to his ranking, the applicant was offered, and accepted, with effect from 1 June 2005, a modifying addendum to his temporary staff contract. Thus, Articles 4 and 5 of that contract were amended and his contract then became a “contract … for an indefinite period with a termination clause” under the new Article 4.
Article 5 of the temporary staff contract, as thus amended, provided as follows:
“This contract will be terminated in accordance with Article 47 of the [CEOS] in the event that the [temporary staff member’s] name is not included on the reserve list of the next open competition to be organised by [the European Personnel Selection Office] for his function group with specialisation in industrial property. This contract will also be terminated in the event that the [temporary staff member] does not accept an offer of recruitment as an official in his function group which is made to him by [EUIPO] immediately following the publication of the reserve list for that competition.
Furthermore, [EUIPO] reserves the right to terminate this contract on any other ground provided for in Articles 47 to 50 of the [CEOS], in accordance with the conditions set out in those articles.
If the termination conditions are fulfilled, this contract shall terminate automatically upon expiry of the notice referred to in Article 47(c)(i) of the [CEOS].”
…
On 19 December 2007, the director of the Human Resources Department of [EUIPO] informed the applicant that open competitions OHIM/AD/02/07 and OHIM/AST/02/07 were among those contemplated by the termination clause in Article 5 of his temporary staff contract, as amended on 1 June 2005.
The applicant took part in open competition OHIM/AST/02/07 but [his name] was not included on the reserve list. His contract was terminated by a decision of 12 March 2009, with effect from the evening of 15 September 2009 (the “decision of 12 March 2009”).
The applicant filed a complaint against the decision of 12 March 2009. Following the rejection of that complaint, he challenged that decision by way of a group action, brought with 13 other members and former members of the temporary staff of [EUIPO], which was registered at the Tribunal Registry as Case F‑102/09.
The group action registered as Case F‑102/09 led to the judgment of 15 September 2011, Bennett and Others v OHIM (
F‑102/09
,
EU:F:2011:138
; “the
Bennett II
judgment”). In that judgment, the Tribunal held, first, that, notwithstanding the wording of Article 4, the applicant’s contract, as modified with effect from 1 June 2005, could not be classified as a contract for an indefinite period, which was characterised by the permanency of the post (the
Bennett II
judgment, paragraph 86), and secondly, that the amendment made to his temporary staff contract on 1 June 2005 by the insertion of a termination clause had to be construed as being a first renewal of his contract for a fixed period coming within Article 2(a) of the CEOS (the
Bennett II
judgment, paragraph 120). By the same judgment, the Tribunal dismissed the action in so far as it related to the applicant, and thus did not annul the decision of 12 March 2009.
Previously, in another group action registered at the Tribunal Registry as Case F‑19/08, in which the applicant was also a party, and which led to the judgment of 2 July 2009, Bennett and Others v OHIM (
F‑19/08
,
EU:F:2009:75
; “the
Bennett I
judgment”), the Tribunal, after observing that competitions OHIM/AD/02/07 and OHIM/AST/02/07 had been organised, respectively, with a view to the recruitment of only four assistants and one administrator, held in paragraph 116 of that judgment that:
“In offering to 31 members of staff who had passed the relevant internal selection procedures a temporary contract for an indefinite period containing a termination clause applicable solely if the staff concerned were not included on a reserve list drawn up following an open competition with specialisation in industrial property, it having been announced by the Executive Director of [EUIPO] himself that such a competition would be held in 2007 or 2008, [EUIPO] was clearly undertaking to retain the staff in question permanently within the institution on condition that they were included on such a reserve list. In those circumstances, by limiting the number of posts to be filled to a total of five, whereas there were [31] members of staff concerned, and by limiting the number of successful candidates entered on the list of suitable candidates drawn up following [competitions OHIM/AD/02/07 and OHIM/AST/02/07] — which, moreover, were open competitions — to the exact number of posts to be filled, [EUIPO] radically and objectively reduced the prospects for those staff, as a whole, to avoid the application of the termination clause and, therefore, rendered partly meaningless the scope of its contractual undertakings vis-à-vis its temporary staff.”
…
Following the
Bennett I
and
Bennett II
judgments, on 1 December 2011 [EUIPO] and the applicant signed a “reinstatement protocol” (the “reinstatement protocol”) providing for the applicant to be “reinstated” in his position under the temporary staff contract, as amended on 1 June 2005, with Article 5 of the contract remaining unchanged and Article 4 being deleted; by that protocol, [EUIPO] effectively reinstated the applicant in his post as from 1 December 2011.
…
On 28 November 2013, the Executive Director of [EUIPO] informed the applicant that, following the publication of the notice for the competition at issue, “the [termination clause in Article 5 of his temporary staff contract] would be considered [to be engaged] if [his] name [did] not appear … on the reserve list[s] of … [open competitions OHIM/AD/01/13 and OHIM/AST/02/13]”.
The applicant took part in open competition OHIM/AST/02/13 (“the competition at issue”), but [his name] was not included on the reserve list. His temporary staff contract was terminated by decision of 4 June 2014, taking effect on the expiry of six months’ notice running from that day, that is to say, on 3 December 2014 (the “contested decision”).
The applicant brought a complaint against the contested decision on 4 September 2014, which complaint was rejected on 12 January 2015.’
Proceedings at first instance and the judgment under appeal
By application lodged at the Registry of the Civil Service Tribunal on 22 April 2015, the appellant brought an action, registered under case reference F‑60/15, seeking the annulment of the decision of the Executive Director of EUIPO of 4 June 2014 to terminate his temporary staff contract upon the expiry of six months’ notice.
By the judgment under appeal, the Civil Service Tribunal dismissed the action and ordered the appellant to pay, in addition to his own costs, half of those incurred by EUIPO.
First of all, the Civil Service Tribunal observed that ‘the reinstatement protocol [which EUIPO and the applicant had signed on 1 December 2011] provided for the reinstatement of the applicant to his position under the temporary staff contract, as amended on 1 June 2005, in the grade and step which he had held on the date on which that contract was terminated, or in other words the evening of 15 September 2009’ and that, by that protocol, EUIPO ‘agreed to reconstitute the career of the applicant as from that same date, and to pay him the difference between what he would have received between 16 September 2009 and 30 November 2011, if his contract had not been terminated, and what he actually received during that period’. It held that ‘in those circumstances, as is apparent from the express terms of Article 1 [of the protocol], the decision of 12 March 2009 must be regarded as having been withdrawn by the protocol, with the applicant being retroactively restored to the performance of his temporary staff contract, as amended on 1 June 2005, as from the date on which the termination decision had taken effect, or in other words the evening of 15 September 2009’. The Tribunal therefore held that ‘since the applicant’s temporary staff contract, as amended on 1 June 2005, is properly construed … as being a first renewal of his temporary staff contract for a fixed period coming within Article 2(a) of the CEOS, the applicant cannot maintain that the contested decision infringed the first paragraph of Article 8 of the CEOS on the basis that [that protocol] constituted the second renewal of the contract between him and [EUIPO]’ (judgment under appeal, paragraph 39).
The Civil Service Tribunal went on to observe that ‘the framework agreement [on fixed-term work, concluded by ETUC, UNICE and CEEP on 18 March 1999 and implemented by Council Directive 1999/70/EC of 28 June 1999] does not concern the conditions for terminating fixed-term contracts or contracts of indefinite duration, but the conditions for the use of such contracts, in accordance with clause 1(b)’, and that ‘clause 5(1)(a) of the framework agreement cannot be directly relied on against the contested decision, which has neither the purpose nor the effect of renewing the applicant’s employment with [EUIPO] and which cannot therefore be, in itself, contrary to the provisions of the framework agreement’ (judgment under appeal, paragraph 45).
Furthermore, in relation to the contention that the reinstatement protocol signed by EUIPO and the appellant on 1 December 2011 (‘the reinstatement protocol of 1 December 2011’) was unlawful, in that it was contrary to the provisions of the ETUC-UNICE-CEEP framework agreement on fixed-term work, concluded on 18 March 1999 and implemented by Council Directive 1999/70/EC of 28 June 1999 (
OJ 1999 L 175, p. 43
) (the ‘framework agreement’), the Civil Service Tribunal pointed out that the protocol in question had restored the appellant to his position under the temporary staff contract, as amended on 1 June 2005, and that ‘that contract … is properly construed as being a first renewal of a temporary staff contract for a fixed period coming within Article 2(a) of the CEOS, effected pursuant to Article 8 of the CEOS, which is intended precisely to limit the use of successive temporary staff contracts and is among the measures, contemplated by clause 5(1) of the framework agreement, capable of preventing abuse arising from the use of successive fixed-term employment contracts or relationships’ (judgment under appeal, paragraph 46).
Lastly, the Civil Service Tribunal stated that ‘since the decision to terminate the applicant’s previous contract with [EUIPO] had not been annulled by the Tribunal, his reinstatement under the reinstatement protocol [of 1 December 2011] was effected on the sole initiative of the administration’, and that ‘reinstating the applicant to his position within [EUIPO] in that way, even though the employment relationship had been subject to an interruption of over two years, cannot be regarded as constituting an abuse within the meaning of clause 1(b) of the framework agreement’ (judgment under appeal, paragraph 46).
Procedure before the General Court and forms of order sought by the parties
By a statement of appeal lodged at the Court Registry on 12 May 2016, the appellant brought the present appeal.
…
The appellant claims that the Court should:
—
set aside the judgment under appeal;
—
consequently, grant the form of order which he sought at first instance by annulling the decision of the Executive Director of EUIPO of 4 June 2014 to terminate his temporary staff contract upon the expiry of six months’ notice;
—
order EUIPO to pay all of the costs of the proceedings at first instance and on appeal.
EUIPO contends that the Court should:
—
dismiss the appeal;
—
alternatively, grant the form of order which it sought at first instance;
—
order the appellant to pay the costs of the proceedings.
Law
…
The first and second grounds of appeal, respectively alleging infringement of Article 8 of the CEOS and infringement of the principle of res judicata attaching to the judgment of 15 September 2011, Bennett and Others v OHIM (
F‑102/09
,
EU:F:2011:138
)
The first two grounds of appeal raised by the appellant allege, respectively, infringement of Article 8 of the CEOS and infringement of the principle of
res judicata
attaching to the judgment of 15 September 2011, Bennett and Others v OHIM (
F‑102/09
,
EU:F:2011:138
).
…
The first two grounds call for consideration of whether the Civil Service Tribunal erred in holding that the termination decision of 12 March 2009 had been withdrawn, and whether the Tribunal was correct in its assessment of the legal consequences flowing from such withdrawal.
The first issue for consideration is whether it was legally possible to withdraw the termination decision of 12 March 2009.
As to this, first, it is apparent from the case-law that the retroactive withdrawal of an administrative legal measure which has conferred individual rights or similar benefits is contrary to the general principles of law (see, to that effect, judgments of 22 September 1983, Verli-Wallace v Commission,
159/82
,
EU:C:1983:242
, paragraph
, and of 5 December 2000, Gooch v Commission,
T‑197/99
,
EU:T:2000:282
, paragraph
).
Secondly, in relation to illegal administrative acts, it must be borne in mind that, according to settled case-law, it follows from the general principles of EU law that the administration is, as a rule, empowered to revoke, with retroactive effect, favourable administrative acts adopted unlawfully (see, to that effect, judgments of 20 November 2002, Lagardère and Canal+ v Commission,
T‑251/00
,
EU:T:2002:278
, paragraphs
to
, and of 15 April 2011, IPK International v Commission,
T‑297/05
,
EU:T:2011:185
, paragraph
), but that the retroactive withdrawal of an act which has created rights in favour of the person to whom it is addressed is generally subject to very strict conditions (see, to that effect, judgment of 9 March 1978, Herpels v Commission,
54/77
,
EU:C:1978:45
, paragraph
). While it must be acknowledged that any EU institution which finds that a measure which it has just adopted is tainted by illegality has the right to withdraw that measure within a reasonable period, with retroactive effect, that right may be restricted by the need to respect the legitimate expectations of a beneficiary of the measure, who has been led to rely on the lawfulness thereof (judgments of 26 February 1987, Consorzio Cooperative d’Abruzzo v Commission,
15/85
,
EU:C:1987:111
, paragraphs
to
; of 20 June 1991, Cargill v Commission,
C‑248/89
,
EU:C:1991:264
, paragraph
, and of 17 April 1997, de Compte v Parliament,
C‑90/95 P
,
EU:C:1997:198
, paragraph
). Such a decision is also subject to the condition that it does not infringe the principle of legal certainty (see, to that effect, judgment of 5 March 2003, Ineichen v Commission,
T‑293/01
,
EU:T:2003:55
, paragraph
).
Thirdly, it essentially follows from the judgment of 16 December 2010, Athinaïki Techniki v Commission (
C‑362/09 P
,
EU:C:2010:783
, paragraph
), that the strict conditions which, under the judgments of 9 March 1978, Herpels v Commission (
54/77
,
EU:C:1978:45
), of 26 February 1987, Consorzio Cooperative d’Abruzzo v Commission (
15/85
,
EU:C:1987:111
), and of 17 April 1997, de Compte v Parliament (
C‑90/95 P
,
EU:C:1997:198
), attach to the retroactive withdrawal of an illegal administrative act creating individual rights are not relevant where the act in question does not, vis-à-vis the person to whom it is addressed, constitute an act giving rise to rights, but an act adversely affecting him.
In the light of that case-law, the General Court considers that there is nothing to prevent the withdrawal of an illegal or legal administrative act which, vis-à-vis the person to whom it is addressed, is principally an act adversely affecting him and incidentally creates rights in his favour, provided that the legitimate expectations of that person are not interfered with and the principle of legal security is not infringed.
In the present case, it must be held that the termination decision of 12 March 2009 was principally an administrative act adversely affecting the appellant and that it incidentally created rights in his favour.
Furthermore, by signing the reinstatement protocol of 1 December 2011, the appellant signalled his acceptance of the withdrawal of the termination decision of 12 March 2009 and, consequently, the withdrawal in question operated in conformity with the principles, referred to in paragraph 27 above, of the legitimate expectations of the appellant and of legal certainty. In this regard, Article 1 of that protocol indicates unambiguously that that decision had been withdrawn.
The Civil Service Tribunal was accordingly correct to hold, in paragraph 39 of the judgment under appeal, that the termination decision of 12 March 2009 had been withdrawn by the reinstatement protocol of 1 December 2011.
The second issue for consideration, given that the withdrawal of the termination decision of 12 March 2009 was legally possible, is whether the Civil Service Tribunal erred in its assessment of the legal consequences of that withdrawal.
As to this, first, it must be observed that, once withdrawn, the termination decision of 12 March 2009 was deemed never to have existed. The Civil Service Tribunal was thus correct in law to hold, in paragraph 39 of the judgment under appeal, that the appellant had been retroactively restored to the performance of his temporary staff contract, as amended on 1 June 2005, with effect from 15 September 2009. In this regard, the provisions of the reinstatement protocol of 1 December 2011 merely effect the reinstatement of the appellant to the position which he had been in prior to 15 September 2009.
Secondly, the Civil Service Tribunal held, in paragraph 39 of the judgment under appeal, that the appellant’s temporary staff contract, as amended by the modifying addendum of 1 June 2005, had to be construed as being a first renewal of a temporary staff contract for a fixed period coming within Article 2(a) of the CEOS, and rejected the argument that the reinstatement protocol of 1 December 2011 had constituted the second renewal of that contract.
The Civil Service Tribunal’s reasoning on those points does not involve any error of law. As stated in paragraph 33 above, the withdrawal of the termination decision of 12 March 2009, effected by the reinstatement protocol of 1 December 2011, operated to restore the appellant to the position which he had been in prior to 15 September 2009, and not to place him in a position which he had not been in before that date, nor, therefore, to effect a second renewal of his fixed-term contract.
…

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

1.
Dismisses the appeal;

2.
Orders Mr José Luis Ruiz Molina to bear his own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) in relation to the present proceedings.

Jaeger
Prek
Dittrich
Delivered in open court in Luxembourg on 27 June 2017.
[Signatures]
(
*1
)	Language of the case: French.
(
)	Only the paragraphs of the present judgment which the General Court considers it appropriate to publish are reproduced here.