CELEX: 62014TJ0231
Appeal
Civil service
Temporary staff
Fixed-term contract
Non-renewal decision
Article 8, first paragraph, of the CEOS
Reclassification of a fixed-term contract as a contract of indefinite duration
Unlimited jurisdiction

)
By its appeal, the European Medicines Agency (EMA) seeks the setting-aside of the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 5 February 2014 in
Drakeford
v
EMA
(F‑29/13, ECR-SC, ‘the judgment under appeal’,
EU:F:2014:10
) by which the Civil Service Tribunal annulled the decision not to renew Mr David Drakeford’s contract.
Background to the dispute, proceedings at first instance and judgment under appeal
The background to the dispute is set out in paragraphs 4 to 19 of the judgment under appeal, as follows:
‘4
On 30 October 1996, the applicant was recruited by the EMA as a member of the auxiliary staff, for the period of one year with effect from 16 November 1996, to act as information technology coordinator within the information technology sector (“the IT sector”) under the technical coordination unit.
Having successfully completed a selection procedure for temporary staff, he then entered into a contract with the EMA, under which he was appointed to the post of lead administrator for a period of five years, on a renewable basis, with effect from 1 February 1997 and as a Grade A 5 temporary agent under Article 2(a) of the CEOS. He continued to carry out his duties within the IT sector.
On 15 November 1998, the applicant was appointed deputy head of the IT sector. He also came to perform the role of interim head of the IT sector during the period 2001/2003.
On its expiry on 1 February 2002, the applicant’s temporary contract was renewed for a further period of five years.
By a supplemental agreement of 6 August 2002, the applicant was promoted to Grade A 4.
Having been successful in an external selection procedure for the post of head of the IT sector, the applicant entered into a temporary contract with the EMA on 15 April 2003 as Grade A 4 under Article 2(a) of the CEOS. This was a five-year renewable contract, effective from 1 May 2003.
On 1 May 2004, following reform of the regulations, the applicant’s grade was re-classified as A*12.
By a supplemental agreement signed by the authority empowered to conclude contracts of employment and by the applicant on the 14 and 15 August 2007 respectively, the applicant’s contract was renewed for five years with effect from 1 May 2008.
By a memorandum of 5 June 2009, the applicant was informed of his appointment as head of the information and communication technology sector within the information and communication technology unit (“the ICT unit”) under an internal restructuring of the Agency.
On 15 September 2011, the head of the Human Resources sector within the Administration unit informed the applicant that he had been placed on the list of successful candidates from the selection procedure for the post of head of the ICT unit, valid until 31 December 2012.
On 30 July 2012, that is, nine months after the expiry of the applicant’s contract, the EMA’s Human Resources sector sent to the head of the applicant’s unit a form relating to the potential renewal of the applicant’s contract. On 17 August 2012, the head of the applicant’s unit issued a notice stating that “no action needed to be taken in relation to renewing the contract”.
Following the issue of that notice, the executive director, in his capacity as the authority empowered to conclude contracts of employment, confirmed to the applicant by letter of 30 August 2012 that his contract would terminate on 30 April 2013 (“the decision of 30 August 2012”) and that “in the interests of the Agency [he would be] placed on ‘garden leave’ with effect from 1 September 2012 until expiry of the contract”.
By letter of 31 August 2012, the applicant objected to being placed on compulsory leave with immediate effect, claiming that, in accordance with the relevant legislation, after a working relationship with the EMA of almost 16 years, he should be regarded as a “permanent employee”. On the same day, the authority empowered to conclude contracts of employment responded to the applicant stating that his contract, which was entered into on 15 April 2003 for five years with effect from 1 May 2003, had been renewed on 1 May 2008 for a period of five years. By letter of 3 September 2012, the applicant was informed of the administrative arrangements for his departure from the EMA.
On 12 September 2012, the applicant sent a complaint to the EMA under Article 90(2) of the Staff Regulations of Officials of the European Union (“the Staff Regulations”) in relation to the decision of 30 August 2012, invoking the five temporary contracts or contract renewals which had existed without interruption since 1997 and which, he said, had therefore placed him in an employment relationship of indefinite duration. In support of this reclassification, the applicant emphasised the impeccable and significant work that he had carried out for the Agency. On 15 October 2012, he submitted a supplemental complaint consisting, first, of a claim for automatic reclassification of his last contract under Article 8 of the CEOS as a contract of indefinite duration commencing on the date when his second five-year temporary contract was replaced by the new contract entered into on 15 April 2003; secondly, of a claim for reclassification of the first auxiliary contract which took effect on 16 November 1996 as a temporary contract, meaning that the second renewal actually occurred on 9 May 2001; and, thirdly, of a claim for EUR 10000 by way of compensation for the damage suffered as a result of unlawfully being placed on compulsory leave.
On 19 December 2012, the authority empowered to conclude contracts of employment rejected the complaint of 12 September 2012, as supplemented by the letter of the following 15 October, on the grounds that the fixed-term contract which took effect on 1 May 2003 had been renewed only once and that, in the absence of a second renewal, under Article 8 of the CEOS, it could not be regarded as a contract of indefinite duration.
On 24 December 2012, the applicant submitted a new complaint under Article 90(2) of the Staff Regulations, this time in relation to the decision of 19 December 2012 which had rejected his claims for reclassification of his initial auxiliary contract as a temporary contract and of his ongoing temporary fixed-term contract as a temporary contract of indefinite duration, and invited the Agency to examine whether it was actually possible to renew that latter contract. That new complaint, together with the request for a renewal of the contract, was rejected by the authority empowered to conclude contracts of employment by letter of 26 February 2013 (“the decision of 26 February 2013”).’
By application lodged at the Registry of the Civil Service Tribunal on 28 March 2013, Mr Drakeford brought an appeal seeking the annulment of the decisions of 30 August 2012 and 26 February 2013 and an order for the EMA to pay him EUR 25000 as compensation for the non-material damage he had suffered. The EMA argued, primarily, that the appeal should be dismissed for being in part inadmissible and, in any event, unfounded; in the alternative, that the claims for costs and for the payment of EUR 25000 to Mr Drakeford and indeed any compensation claim for material damage alleged but not yet proven should be rejected, and that Mr Drakeford should be ordered to pay costs.
First of all, the Civil Service Tribunal held as inadmissible the arguments seeking annulment of the decision of 26 February 2013 in so far as the decision rejected Mr Drakeford’s claims for a renewal of his contract and for the reclassification of his auxiliary contract as a temporary contract and of his temporary fixed-term contract as a temporary contract of indefinite duration.
Next, at paragraph 47 of the judgment under appeal, the Civil Service Tribunal upheld Mr Drakeford’s claim for annulment of the decision of 30 August 2012, by interpreting the words ‘any further renewal’ in the third sentence of the first paragraph of Article 8 of the Conditions of Employment of Other Servants (‘the CEOS’) as referring to any process leading to temporary staff, within the meaning of Article 2(a) of the CEOS, at the end of their engagement for a fixed period, continuing their employment relationship with their employer in that capacity, even if such renewal was accompanied by grade progression or a change in the duties performed. The Civil Service Tribunal added that the situation could be otherwise only if the new contract came under a different legal system or if the career path was interrupted, as shown by a material change in the nature of the duties performed by the staff member concerned, for instance.
The Civil Service Tribunal based its reasoning on the objective of the first paragraph of Article 8 of the CEOS, that objective being to guarantee a certain stability of employment, and on the principle of equal treatment, holding that the decision of 30 August 2012, which was taken from the perspective of a fixed-term employment relationship, infringed the first paragraph of Article 8 of the CEOS.
Finally, in relation to material damage, for the period from the date of expiry of Mr Drakeford’s temporary fixed-term contract until the date of delivery of the judgment under appeal the Civil Service Tribunal ordered the EMA to pay to Mr Drakeford the difference between the amount of the remuneration which he would have been able to earn had he remained in post and the amount of the remuneration, fees, unemployment benefit and any other allowance in lieu or remuneration of the same kind which he had in fact received after 1 May 2013. In respect of the period following delivery of the judgment under appeal, the Civil Service Tribunal, exercising its unlimited jurisdiction, invited the EMA to either reinstate Mr Drakeford or seek to agree fair monetary compensation, and instructed the parties to forward to the Civil Service Tribunal the mutually agreed solution or, in the event of no agreement, to present their quantified claims.
The appeal
Proceedings before the Court and forms of order sought by the parties
By document lodged at the Court Registry on 15 April 2014, the EMA brought this appeal, on the basis of Article 9 of Annex I to the Statute of the Court of Justice of the European Union. On 25 July 2014, Mr Drakeford lodged his response.
By documents lodged at the Court Registry on 14, 25 and 28 July 2014, the European Commission, the European Food Safety Authority (EFSA), the European Chemicals Agency (ECHA), the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and the European Centre for Disease Prevention and Control (ECDC) sought leave to intervene in support of the form of order sought by the EMA. By orders of the President of the Appeal Chamber of 2 and 24 September 2014, those five applications to intervene in support of the form of order sought by the EMA were granted.
The Commission, the ECHA, Frontex, the EFSA and the ECDC lodged a statement in intervention within the time prescribed.
The EMA and Mr Drakeford were invited to comment on the statements in intervention, which they did within the time prescribed.
The EMA, supported by the Commission, by the ECHA, by Frontex, by the EFSA and by the ECDC, claims that the Court should:
—
set aside the judgment under appeal;
—
consequently, dismiss the action at first instance;
—
order Mr Drakeford to pay the costs of the proceedings at both instances.
Mr Drakeford claims that the Court should:
—
dismiss the appeal;
—
order the EMA to pay the costs.
By letter of 9 February 2015, the EMA submitted a reasoned application under Article 146 of the Rules of Procedure of the General Court of 2 May 1991 to be heard in the oral part of the procedure.
The Court granted the appellant’s application and opened the oral part of the procedure.
The parties presented oral argument and replied to the Court’s oral questions at the hearing on 14 April 2015.
Law
…
First ground of appeal, alleging an error of interpretation on the part of the Civil Service Tribunal of the words
‘any further renewal
’ in the first paragraph of Article 8 of the CEOS
…
First of all, it must be recalled that, according to a general principle of interpretation, where there is divergence between the various language versions, a provision of EU law must be placed in its context and interpreted in the light of all the provisions of that law, its objectives and the state of its development at the date that the provision in question is to be applied (see, to that effect, judgment of 2 September 2010 in
Kirin Amgen
, C‑66/09, ECR,
EU:C:2010:484
, paragraph 41).
It should also be recalled that the objective of the first paragraph of Article 8 of the CEOS is neither a certain stability of employment nor a certain continuity of the employment relationship of temporary staff on fixed-term contracts, but the prevention of the wrongful use of fixed-term contracts (judgment of 21 May 2014 in
Commission
v
Macchia
, T‑368/12 P, ECR-SC,
EU:T:2014:266
, paragraph 60). The lack of stability of the employment relationship is also confirmed by the fact that renewal of the fixed-term contract of a temporary member of staff is no more than a possibility, except in the situation set out in the last sentence of the first paragraph of Article 8 of the CEOS, the objective of which is precisely to avoid the wrongful use of fixed-term contracts by providing for an automatic reclassification of a fixed-term contract as a contract of indefinite duration. In any case, the employment relationship of a temporary member of staff who, through the automatic reclassification under the last sentence of the first paragraph of Article 8 of the CEOS, becomes the holder of a contract of indefinite duration, is not secure. In that situation, the administration may, at any time, terminate the contract for a lawful reason and in compliance with the conditions set out in Article 47 c) i) of the CEOS.
In the present case, first of all, the Civil Service Tribunal held that the different language versions of the first paragraph of Article 8 of the CEOS did not allow it to be interpreted in a unanimous way. In support of that conclusion, the Civil Service Tribunal referred, on the one hand, to the Dutch and Italian versions, which favoured the position taken by the EMA and, on the other hand, to the French, German, English and Spanish versions. In relation to these latter versions, at paragraph 42 of the judgment under appeal, the Civil Service Tribunal found that, unlike the Italian and Dutch versions, the wording of the French and German versions, which referred more generally to the renewal of the engagement and the employment relationship, and the wording of the English and Spanish versions, which referred to any further renewal, without being more specific, did not allow the conclusion to be drawn that the words ‘any further renewal’ denoted the same contract. The Civil Service Tribunal therefore found that there were two language versions of the first paragraph of Article 8 of the CEOS: one version in which it was clear that the words ‘any further renewal’ referred to the contract, and another version which did not allow for that conclusion. Given this difference between the texts, which did not unequivocally indicate what it was that must be renewed to result in the reclassification of a fixed-term contract as a contract of indefinite duration, the Civil Service Tribunal held that it was necessary to establish a uniform interpretation of the provision.
There is no error of law in that finding of the Civil Service Tribunal. Admittedly, it is true that, as noted by the EMA, the Civil Service Tribunal took no account of the fact that, in the English and Spanish versions, the words ‘any further renewal’ can only refer to the ‘contract’. However, that error has no bearing on the Civil Service Tribunal’s assessment, to the extent that the Tribunal rightly stated that, by contrast, the French and German versions did not allow a unanimous conclusion to be reached on the interpretation of the first paragraph of Article 8 of the CEOS. In those versions, the alternative use of the terms ‘engagement’, ‘contract’ and ‘any further renewal of that engagement’ render the provision ambiguous. In that respect, it should be pointed out that, while the term ‘engagement’ relates more generally to the employment relationship between a member of staff, on the one hand, and an institution or agency, on the other, the term ‘contract’ denotes the legal instrument embodying that relationship. Given that the wording of the French and German versions lends itself to the interpretation that the engagement of a member of staff can be achieved through the conclusion of different contracts within the same employment relationship, the Civil Service Tribunal was right to hold that those versions did not make it clear whether the words ‘any further renewal’ referred unanimously to the engagement or to the contract. Consequently, the EMA’s subsequent argument that the words ‘engagement’ and ‘contract’ are interchangeable cannot be accepted.
Moreover, even the literal interpretation suggested by the EMA, according to which it is necessary for the renewal to be of the same fixed-term contract in order for the last sentence of Article 8 of the CEOS to apply, is not free from ambiguity, since the language versions that exclusively use the term ‘contract’ could lend themselves to a literal interpretation different from the latter. It could transpire that a temporary member of staff with a fixed-term contract subsequently enters into a new fixed-term contract which, although technically distinct, retains a substantial continuity with the initial contract. Accordingly, regarding the object of the renewal that causes the transformation of a fixed-term contract into a contract of indefinite duration, there is nothing to prevent the last sentence of the first paragraph of Article 8 of the CEOS from being interpreted as referring to the same sort of contract, namely a fixed-term contract, rather than to a contract identical to the initial contract. That hypothesis demonstrates that, in principle, successive fixed-term contracts between a member of staff and the administration can, to the extent that they are continuous with the first fixed-term contract, be taken into account for the purposes of the applicability of the last sentence of the first paragraph of Article 8 of the CEOS.
In view of these considerations, having noted a difference between the texts capable of producing differences in meaning, the Civil Service Tribunal was able, without committing any error of law, first to declare that it could not limit itself to a literal approach and secondly, in order to ensure a uniform application of the first paragraph of Article 8 of the CEOS, to apply, at paragraph 45 of the judgment under appeal, the general principle that a provision must be interpreted in the light of all the provisions of the EU law, its objectives and the state of development of the said law.
The first part of the first ground of appeal must, therefore, be rejected as unfounded.
Next, the Civil Service Tribunal based its interpretation of the first paragraph of Article 8 of the CEOS partly on its objective and partly on its context. In relation to the objective of the provision, at paragraphs 43, 44 and 46 of the judgment under appeal, the Civil Service Tribunal held, in essence, that this was to guarantee a certain stability in the employment relationship. As for the context, at paragraph 47 of the judgment under appeal, the Civil Service Tribunal held that to interpret the first paragraph of Article 8 of the CEOS as excluding the reclassification of the fixed-term contract of a temporary member of staff as a contract of indefinite duration simply because the member of staff had progressed in his career and entered into different contracts with the administration would be contrary to the principle of equal treatment and the intention of the legislature, as explicitly expressed in Article 12(1) of the CEOS, to ensure that temporary staff secure for the institutions the services of persons of the highest standard of ability, efficiency and integrity.
As for the second part of the first ground of appeal, it must be stated that, in finding that the objective of the first paragraph of Article 8 of the CEOS was to guarantee a certain stability of employment, the Civil Service Tribunal committed an error of law. In fact, contrary to what the Tribunal held, and as noted in paragraph 23 above, the objective of the first paragraph of Article 8 of the CEOS is to prevent wrongful use by the administration of successive fixed-term contracts. In addition, as noted in paragraph 19 above, the limited objective of the article is confirmed by the recognised ability on the part of the administration to terminate at any time the employment relationship of a member of staff with a contract of indefinite duration, in compliance with the procedures set out in Article 47 of the CEOS.
However, it should be noted that the Courts of the European Union may dismiss a plea or complaint as ineffective where they find that that plea or complaint is not capable, in the event that it is well-founded, of leading to the annulment sought (see, to that effect, judgment of 19 November 2009 in
Michail
v
Commission
, T‑50/08 P, ECR-SC,
EU:T:2009:457
, paragraph 59 and the case-law cited).
First, even though the Civil Service Tribunal committed an error of law in finding that the objective of the first paragraph of Article 8 of the CEOS was to guarantee a certain stability of employment, the Tribunal was none the less correct to hold that the article precludes a finding that the reclassification of the fixed-term contract of a temporary member of staff as a contract of indefinite duration could occur automatically only when the successive renewals are of the same contract. The Civil Service Tribunal in fact held, at paragraph 47 of the judgment under appeal, that to deprive a temporary member of staff on a fixed-term contract who has progressed in his career through the achievement of good results at work, and who thus has entered into different contracts, of the protection provided for in the last sentence of the first paragraph of Article 8 of the CEOS, by comparison to a temporary member of staff on a fixed-term contract who has had the same contract renewed, without any career progression resulting from particular merits, would have the effect of penalising the former. The EMA’s argument must therefore be rejected as ineffective.
Finally, in relation to the third part of the first ground of appeal, it is sufficient to note that, despite the EMA’s argument to the contrary, the Civil Service Tribunal did not treat temporary staff in the same way as officials. Admittedly, as stated in paragraph 29 above, the Civil Service Tribunal misconstrued the objective of the first paragraph of Article 8 of the CEOS. However, it should be noted that, at paragraph 50 of the judgment under appeal, the Civil Service Tribunal held that the administration could at any time terminate a member of staff’s contract of indefinite duration, in compliance with the time-limit specified in Article 47 c) i) of the CEOS. That shows that the Civil Service Tribunal did not remotely call into question the difference between officials and other members of staff or the wide power of discretion that the administration has in its employment relations with the latter (judgment of 4 December 2013 in
ETF
v
Schuerings
, T‑107/11 P, ECR-SC,
EU:T:2013:624
, paragraph 76).
It follows from the above that the EMA’s first ground of appeal must be rejected as unfounded.
Second ground of appeal, alleging an error of law as regards the stating of an exception to the interpretation of the first paragraph of Article 8 of the CEOS
…
In relation to the argument that the reference to another legal regime is vague or even incongruous, it must be held that the Civil Service Tribunal made an error of law. As the EMA, supported by the Commission, the ECHA, Frontex, the EFSA and the ECDC, rightly submitted, the CEOS is the only legal regime applicable to all temporary staff. Therefore, the reference made by the Civil Service Tribunal to another legal regime is incorrect.
However, as noted in paragraph 31 above, the Courts of the European Union may dismiss a plea or complaint as ineffective where they find that that plea or complaint is not capable, in the event that it is well-founded, of leading to the annulment sought (see, to that effect, judgment in
Michail
v
Commission
, cited in paragraph 31 above,
EU:T:2009:457
, paragraph 59 and the case-law cited). In the present case, it must be held that, even though the reference to another applicable regime is incorrect, in the judgment under appeal, the Civil Service Tribunal based its reasoning on the hypothesis concerning an interruption to the career path. It follows that the argument alleging the vague, or even incongruous, nature of the reference to another legal regime must be rejected as ineffective.
As for the argument alleging that the new contract indicates an interruption to the career path of the temporary member of staff, it must first of all be noted that the exception established by the Civil Service Tribunal to reclassification applying under the first paragraph of Article 8 of the CEOS in the event that the career path has been interrupted is the logical consequence of the interpretation of that article. The objective of the first paragraph of Article 8 is to prevent the situation arising where a temporary member of staff on a fixed-term contract has progressed in his career or where the duties he performs have changed and the administration makes wrongful use of contracts that are technically different in order to avoid reclassification under that article.
However, the premiss of that reclassification is that the temporary member of staff, who is progressing in his career or whose duties are changing, maintains an employment relationship characterised by continuity with his employer. If a member of staff should enter into a contract containing a material, and not a technical, amendment to the nature of his duties, the premiss of the application of the first paragraph of Article 8 of the CEOS is no longer valid. Indeed, it would be contrary to the spirit of the first paragraph of Article 8 of the CEOS to allow every renewal to be taken into consideration for the purposes of the application of the rule contained in the article. Thus, despite what the EMA maintains to the contrary, the Civil Service Tribunal, at paragraphs 48 and 49 of the judgment under appeal, did clarify the concept of interruption of the career path sufficiently in law by holding that this involved a material change in the duties performed by the member of staff such as to affect the functional continuity of his employment relationship with the administration. Therefore, the EMA’s argument must be rejected.
That conclusion is not undermined either by the EMA’s argument that the Civil Service Tribunal, in applying a vague concept of interruption, wrongly concluded that there had been no interruption of Mr Drakeford’s career path, despite the increase in the level of his responsibilities and the technical amendment of his duties, or by the argument that Mr Drakeford’s appointment was made following an external procedure. Since interruption of the employment relationship is not a vague concept, as was established in paragraph 39 above, the argument that the Civil Service Tribunal committed an error in the present case by applying that concept must fail. In addition, it should be noted that, at paragraph 49 of the judgment under appeal, the Civil Service Tribunal correctly examined the very specific circumstances of the present case, in the light of the concept of interruption set out in paragraph 48 of the judgment under appeal. Admittedly, in the light of a prospective comparison of the tasks to be accomplished, the role of head of sector, which Mr Drakeford accessed following an external selection procedure, represents a material change from the role of deputy head of sector, giving rise to an interruption for the purposes of the concept as determined by the Civil Service Tribunal. Even though remaining within the same field of activity does not automatically lead to continuity in the duties carried out, that continuity must, in principle, be excluded in the situation where access to the role of head of sector is subject to an external selection procedure. However, in the present case it appears that, prior to his appointment as head of sector in 2003, Mr Drakeford carried out the duties of interim head of sector for the period 2001-2003. Therefore it cannot truly be said that, even though his appointment as head of sector was the result of an external procedure, it actually constituted an interruption in relation to the duties that he was carrying out beforehand. In addition, it is also clear from the file at first instance that, in April 2003, Mr Drakeford was classed as Grade A 4, level 3, with 10 months of seniority and that, with effect from 1 May 2003, being the date of commencement of his contract as head of sector within the IT unit, he was classed as Grade A 4, level 3, with 11 months of seniority. That fact confirms, again, the continuity in the employment relationship between Mr Drakeford and the EMA. Consequently, having found that Mr Drakeford had fulfilled his duties in a continuous manner in the field of IT and in particular, as deputy head of sector, interim head of sector and head of sector, the Civil Service Tribunal was correct in law to find that there was no interruption to the material continuity of the employment relationship between the EMA and Mr Drakeford.
…

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

1.
Sets aside the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 5 February 2014 in
Drakeford
v
EMA
(F‑29/13,
EU:F:2014:10
) in so far as the Civil Service Tribunal exercised its unlimited jurisdiction in relation to financial matters for the time after the order was made;

2.
Dismisses the appeal as to the remainder;

3.
Refers the case back to the Civil Service Tribunal;

4.
Reserves the costs for Mr David Drakeford and for the European Medicines Agency (EMA);

5.
Orders the European Commission, the European Chemicals Agency (ECHA), the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex), the European Food Safety Authority (EFSA) and the European Centre for Disease Prevention and Control (ECDC) to bear their own costs relating to the proceedings at this instance.

Jaeger
Papasavvas
Berardis
Delivered in open court in Luxembourg on 16 September 2015.
[Signatures]
(
*1
)	Language of the case: French.
(
)	Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.