62007FJ0065_EN
Parties
Grounds
Operative part
Parties
In Case F‑65/07,
ACTION under Articles 236 EC and 152 EA,
Laleh Aayhan,
residing in Strasbourg (France), and 79 other former session auxiliaries whose names appear in the annex, represented by R. Blindauer, lawyer,
applicants,
v
European Parliament,
initially represented by Mustapha-Pacha and R. Ignătescu, acting as Agents, and subsequently by R. Ignătescu and S. Seyr, acting as Agents,
defendant,
THE TRIBUNAL (Second Chamber),
composed of H. Kanninen, President, I. Boruta and S. Van Raepenbusch (Rapporteur), Judges,
Registrar: R. Schiano, Administrator,
having regard to the written procedure and further to the hearing on 13 November 2008,
gives the following
Judgment
Grounds
1. By application lodged at the Registry of the Civil Service Tribunal on 29 June 2007, Ms Aayhan and 79 other former session auxiliaries of the European Parliament seek, inter alia, annulment of the decision of the authority empowered to conclude contracts of employment (‘the AECCE’) of 20 April 2007 rejecting their purported ‘complaint’ of 19 December 2006 requesting that the successive fixed-term contracts concluded by each of them with the Parliament should be regarded as a single part-time contract for an indefinite period, that they should be reinstated on that basis within the Parliament and that they should receive compensation ‘representing’ the entitlement to paid leave which they acquired in respect of all the periods worked.
Legal context
1. The Conditions of Employment of Other Servants of the European Communities
2. The second sentence of Article 52 of the Conditions of Employment of Other Servants of the European Communities (‘the Conditions of Employment’) states that ‘[n]o new auxiliary staff may be engaged after 31 December 2006’.
3. The first paragraph of Article 58 of the Conditions of Employment provides:
‘Auxiliary staff shall be entitled to paid leave at the rate of two working days per month of service; any period of less than fifteen days’ or half a month’s service shall carry no leave entitlement.’
4. Article 78 of the Conditions of Employment, which comes under Title III ‘Auxiliary staff’, provides:
‘By way of derogation from the provisions of this Title, auxiliary staff engaged by the … Parliament for the duration of the work of its sessions shall be subject to the conditions of recruitment and remuneration laid down in the agreement between the Parliament, the Council of Europe and the Assembly of Western European Union in respect of engagement of such staff.
The provisions of that agreement and any subsequent amendment thereto shall be notified to the competent budgetary authorities one month before their entry into force.
The same conditions of recruitment and remuneration applied to conference interpreters engaged by the … Parliament shall apply to auxiliary staff engaged by the Commission [of the European Communities] as conference interpreters on behalf of the Community institutions and bodies.
The provisions of this Article shall apply until 31 December 2006, the date from which the staff concerned shall be subject to the conditions laid down according to the procedure referred to in Article 90.’
5. Article 90 of the Conditions of Employment, which comes under Title IV ‘Contract staff’, Chapter 5 ‘Special provisions for members of the contract staff referred to in Article 3b’, provides:
‘By way of derogation from the provision of this title, conference interpreters engaged by the … Parliament or engaged by the Commission on behalf of the Community institutions and bodies shall be subject to the conditions laid down in the Agreement of 28 July 1999 between the … Parliament, the Commission and the Court of Justice [of the European Communities], on behalf of the institutions, on the one hand, and the associations representing the profession, on the other.
Amendments to that Agreement required by the entry into force of Council Regulation (EC, Euratom) [No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities, OJ 2004 L 124, p. 1] shall be adopted before 31 December 2006 in accordance with the procedure laid down in Article 78. Amendments to that Agreement after 31 December 2006 shall be adopted by agreement between institutions.’
6. Article 91 of the Conditions of Employment, which also comes under Title IV ‘Contract staff’, Chapter 6 ‘Working conditions’, provides that ‘Articles 16 to 18 shall apply by analogy’. The first paragraph of Article 16 of the Conditions of Employment, in particular, refers, as regards inter alia hours of work, to ‘Articles 55 to 61 of the Staff Regulations [of Officials of the European Communities]’; Article 55a(4) of the Staff Regulations of Officials of the European Communities (‘Staff Regulations’) itself refers, with regard to the rules governing part-time work to Annex IVa of the Staff Regulations, Article 1, third paragraph, third sentence, of which provides:
‘Part-time work may not be less than half the normal working time.’
2. The framework agreement on fixed-term work
7. The second and third paragraphs of the preamble to, and paragraphs 6 to 8 of the general considerations in, the framework agreement on fixed-term work, concluded on 18 March 1999 (‘the Framework Agreement’), annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) state in essence that:
– the parties to the Framework Agreement recognise that contracts for an indefinite period are, and will continue to be, the general form of employment relationship, since they contribute to the quality of life of the workers concerned and improve their performance, but that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers;
– the Framework Agreement sets out the general principles and minimum requirements relating to fixed-term work, establishing in particular a general framework designed to ensure equal treatment for fixed-term workers by protecting them against discrimination and to prevent abuse arising from the use of successive fixed-term employment relationships, while referring back to the Member States and the social partners for the detailed arrangements for the application of those principles and requirements, in order to take account of the realities of specific national, sectoral and seasonal situations;
– the use of fixed-term employment contracts founded on objective reasons is, according to the signatory parties, a way to prevent abuse to the disadvantage of workers.
8. As provided in clause 1, the purpose of the Framework Agreement is to:
‘(a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;
(b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.’
9. Clause 5 of the Framework Agreement states:
‘1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
(a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or relationships;
(c) the number of renewals of such contracts or relationships.
2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:
(a) shall be regarded as “successive”;
(b) shall be deemed to be contracts or relationships of indefinite duration.’
Background to the case
10. The applicants are all former members of the auxiliary staff who were engaged on a number of occasions by the Parliament, each time under a fixed-term contract, for the duration of the work of its sessions, in accordance with Article 78 of the Conditions of Employment, to perform duties such as crèche worker, trained child care assistant, typist, technician, cook, language teacher, cloakroom attendant, removal man, messenger, duplicator operator or assistant.
11. Faced with the prospect that from 1 January 2007 the Parliament would be using short-term staff from employment agencies to meet its staffing needs during sessions, the applicants’ legal representative sent a letter to the Director-General of Directorate-General (DG) Personnel on 18 September 2006 setting out a number of complaints against the arrangements that had applied up until that time with regard to session auxiliaries, concerning in particular the length of their contracts and entitlement to paid leave, and against the Parliament’s intention, with effect from 1 January 2007, to convert the former contracts of session auxiliaries into contracts for short-term staff supplied by employment agencies. In conclusion, the applicants’ legal representative requested that their fixed-term contracts as session auxiliaries should be reclassified as part-time (more specifically, quarter-time) contracts as members of the contract staff for an indefinite period, under Articles 3a or 3b of the Conditions of Employment, that his clients should have retroactive entitlement to paid leave, and that all contractual relations with the short-term employment agency which the Parliament intended to use should end.
12. After a meeting with the applicants’ legal representative on 9 October 2006, the Director-General of DG Personnel replied by letter of 26 October 2006, in essence, that it was impossible to engage session auxiliaries as contract staff under Articles 3a or 3b of the Conditions of Employment, and that the use of short-term agency staff to ensure the proper functioning of sessions of the Parliament in Strasbourg (France) was lawful both under the Conditions of Employment and under French law.
13. By letter of 19 December 2006, the applicants lodged a purported complaint against the decision of 26 October 2006 rejecting the request dated 18 September 2006, asking the AECCE to set aside that decision and ‘in consequence, [regard] all the fixed-term contracts between the applicants and the Parliament as single contracts for an indefinite period, extending beyond 1 January 2007, [to reinstate] all [those] staff member[s] [under a] [c]ontract for an indefinite period … [and afford] each of the applicant staff members compensation representing the entitlement to paid leave which they acquired through working for all the work periods since their employment began’.
14. On 20 April 2007, the Director-General of DG Personnel replied, after reclassifying the letter of 19 December 2006 as a ‘request’, within the meaning of Article 90(1) of the Staff Regulations, that he could not accede to that request.
15. On 21 June 2007 the applicants lodged a complaint against the rejection decision of 20 April 2007.
16. By decision of 25 October 2007, the AECCE rejected that complaint.
Procedure and forms of order sought
17. By a separate document lodged at the Registry of the Civil Service Tribunal on 29 November 2007, the Parliament raised a plea of inadmissibility against the action in pursuance, as it asserted, of Article 114 of the Rules of Procedure of the Court of First Instance of the European Communities, applying mutatis mutandis to the Tribunal under Article 3(4) of Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7) until the entry into force of the Tribunal’s Rules of Procedure.
18. By letter received at the Registry of the Civil Service Tribunal on 21 January 2008 by fax (the original being received on 24 January 2008), the applicants submitted observations on the plea of inadmissibility.
19. By order of 13 March 2008, the Tribunal ordered the plea of inadmissibility raised by the Parliament to be reserved for the final judgment, under the third subparagraph of Article 78(3) of the Rules of Procedure, applying since 1 November 2007, that is to say since a date prior to the date on which that plea of inadmissibility was lodged.
20. The applicants claim that the Tribunal should:
– annul the Parliament’s decision of 20 April 2007 rejecting their complaint of 19 December 2006.
As a consequence:
– amend all the fixed-term contracts entered into between the applicants and the Parliament by reclassifying them as single contracts for an indefinite period;
– rule that the Parliament is required to reinstate them under contracts for an indefinite period;
– rule that members of the auxiliary staff of the Parliament called ‘session auxiliaries’ are entitled to compensation representing the entitlement to paid leave which they acquired in respect of all the periods worked since their employment began;
– order the Parliament to pay to each applicant the sum of EUR 2 000 for their irrecoverable costs of bringing proceedings;
– order the Parliament to bear the costs of these proceedings.
21. The Parliament contends that the Tribunal should:
– declare the alleged action for failure to act manifestly inadmissible;
– declare the action for annulment unfounded;
– dismiss as inadmissible the applicants’ claim that all the fixed-term contracts entered into between the applicants and the Parliament should be amended by reclassifying them as single contracts for an indefinite period;
– dismiss as inadmissible the claim that all those members of staff should be reinstated under contracts for an indefinite period;
– dismiss as unfounded the claim that the applicants should be granted compensation representing an entitlement to paid leave;
– declare inadmissible the claim that each applicant should be paid the sum of EUR 2 000 for their ‘irrecoverable costs of bringing proceedings’;
– make the appropriate order as to the costs.
22. By application received at the Registry of the Civil Service Tribunal on 21 January 2008 by fax (the original being received on 28 January 2008), the applicants seek in particular annulment of the decision of 25 October 2007 rejecting their complaint of 27 June 2007 (registered as Case F‑10/08).
23. At the hearing the applicants were requested by the Tribunal to produce their last contracts as session auxiliaries concluded with the Parliament before the introduction of their alleged complaint dated 19 December 2006. That request was complied with in a letter which was received at the Registry of the Tribunal on 26 November 2008 by fax (the original being received on 1 December 2008). The Parliament submitted observations on that letter on 12 December 2008, the date on which the oral procedure was closed and the case was reserved for judgment.
Admissibility of the action
1. Arguments of the parties
24. The Parliament considers that the action is manifestly inadmissible.
25. In the view of the Parliament, the first letter from the applicants’ legal representative, dated 18 September 2006, is no more than a collection of thoughts concerning, in particular, the lawfulness of Article 78 of the Conditions of Employment, the legal position of session auxiliaries and the Parliament’s decision to use short-term staff supplied by employment agencies from 1 January 2007 onwards.
26. That letter did not contain any specific, formal request to the AECCE to take a decision with regard to the applicants and ended with a suggestion for a meeting with the Director-General of DG Personnel to discuss the matter. That meeting took place, moreover, on 9 October 2006.
27. The reply from the Director-General of DG Personnel of 26 October 2006 in no way constituted a decision and its purpose was merely to summarise the Parliament’s position on the main points raised at that meeting.
28. However, the applicants’ letter of 19 December 2006 contained specific requests and should be described as a request within the meaning of Article 90(1) of the Staff Regulations and not as a complaint, given the absence, at that date, of any decision on the part of the Parliament adversely affecting the applicants.
29. The Parliament observes, therefore, that the applicants were duly entitled to lodge a complaint on 21 June 2007 against the decision of the AECCE of 20 April 2007 rejecting that request. That complaint was rejected by the decision of the AECCE of 25 October 2007.
30. In those circumstances, it is necessary to regard the action brought on 29 June 2007 as being premature since the pre-litigation procedure had not finished on that date, and thus as inadmissible.
31. The Parliament also disputes the admissibility of the applicant’s claims seeking, first, that all the fixed-term contracts concluded by the applicants with the Parliament should be amended by reclassifying them as single contracts for an indefinite period and, secondly, that the Tribunal should rule that the Parliament is required to reinstate all the members of staff concerned under contracts for an indefinite period.
32. According to the Parliament, only the AECCE is entitled to engage members of the temporary or the auxiliary staff. Moreover, in the context of the power conferred on them to annul measures under Article 230 EC, the Community courts are not authorised to issue directions to the institutions. The Parliament adds that Article 233 EC provides for a division of powers between the judiciary and the executive, in so far as it is for the institution that is the author of the measure annulled to determine what measures are required in order to enforce an annulling judgment, by exercising, subject to review by the Community courts, the discretion it has in that regard, and doing so in compliance with both the operative part and grounds of the judgment it is required to enforce and the provisions of Community law.
33. Lastly, the Parliament maintained at the hearing that the action was also inadmissible on the ground that no complaint had been lodged within the time-limits laid down in Articles 90 and 91 of the Staff Regulations against the fixed-term temporary contracts entered into between the applicants and the Parliament.
34. The applicants consider, on the contrary, that the letter of 18 September 2006 constitutes a request within the meaning of Article 90(1) of the Staff Regulations. They state, however, that they brought a new action against the decision of 25 October 2007 in the event that the letter of 18 September 2006 were to be classified as a request.
2. Findings of the Tribunal
35. It should be noted, first of all, that it is settled case-law that the categorisation of a letter or memorandum within the meaning of Article 90(1) of the Staff Regulations is a matter for the Tribunal alone and not for the parties (orders in Case T‑115/92 Hogan
v European Parliament [1993] ECR II‑895, paragraph 36, and Case T‑132/97 Collins
v Committee of the Regions
[1998] ECR-SC I‑A‑469 and II‑1379, paragraphs 12 to 16).
36. In the present case it is clear that the applicants requested, by letter of 18 September 2006, that for each of them all their fixed-term contracts as session auxiliaries should be amended by being reclassified as part-time contracts as members of the contract staff for an indefinite period under Articles 3a or 3b of the Conditions of Employment, that financial compensation should be paid in respect of paid leave for periods worked, and that all contractual relations with the short-term employment agency which the Parliament intended to use should end. A letter such as this should be treated as a request within the meaning of Article 90(1) of the Staff Regulations.
37. The fact that that request contained an invitation to ‘discuss’ the matter with the Parliament’s ‘Human Resources Director’ is not such as to call into question its legal classification.
38. In those circumstances, the letter of 19 December 2006 is to be treated as a complaint against the decision of 26 October 2006 rejecting the request of 18 September 2006, that complaint having been the subject of a rejection decision by the appointing authority on 20 April 2007.
39. Secondly, it must be determined whether, by thereby submitting a request within the meaning of Article 90(1) of the Staff Regulations, the applicants duly followed the preliminary administrative procedure laid down in Articles 90 and 91 of the Staff Regulations, to which Article 46 of the Conditions of Employment refers.
40. In that regard, it is settled case-law that where a decision has already been taken by the appointing authority which adversely affects an official, that person, when he seeks the annulment, reversal or withdrawal of that decision, must not submit a request, within the meaning of Article 90(1) of the Staff Regulations, but must use the complaint procedure provided for in Article 90(2) (see, to that effect, orders of the Court of First Instance of 7 June 1991 in Case T‑14/91 Weyrich
v Commission [1991] ECR II‑235, paragraphs 32 and 34; of 1 April 2003 in Case T‑11/01 Mascetti
v Commission [2003] ECR-SC I‑A‑117 and II‑579, paragraph 33; and judgment in Case F‑27/05 Le Maire
v Commission
[2006] ECR-SC I‑A‑1‑47 and II‑A‑1‑159, paragraph 36).
41. In the present case, as is apparent from paragraph 36 above, by their request of 18 September 2006 the applicants sought to obtain from the administration, first, the conversion of their successive contracts as session auxiliaries into single contracts as members of the contract staff for an indefinite period, under Articles 3a or 3b of the Conditions of Employment, and, secondly, payment of an allowance to compensate for loss suffered as a result of no paid leave being granted for periods worked in the past.
42. As regards the first part of the request, the Parliament maintained in essence at the hearing that the applicants should have followed, within the appropriate time-limits, the complaint procedure laid down in Article 90(2) of the Staff Regulations, at least as regards complaints against their last contracts as session auxiliaries since these had not been concluded for an indefinite period.
43. It is true that a contract normally deploys its effects from the time it is signed. It is therefore from the date of signature that the time–limit for lodging a complaint should be calculated for the purposes of Article 90(2) of the Staff Regulations (Joined Cases T‑137/99 and T‑18/00 Martínez Páramo and Others
v Commission
[2002] ECR-SC I‑A‑119 and II‑639, paragraph 56). In the present case the applicants could thus conceivably each have lodged a formal complaint against one of their last contracts as a session auxiliary in so far as it was not concluded for an indefinite period or based on Articles 3a or 3b of the Conditions of Employment.
44. However, in view of the nature of the pleas put forward by the applicants and the arguments relied upon in support of those pleas, and the total periods worked at the Parliament as session auxiliaries, it was equally consistent with the admissibility conditions for them, in the light of the system of appeals set out in Articles 90 and 91 of the Staff Regulations, initially to ask the Parliament by means of a request within the meaning of Article 90(1) of the Staff Regulations, to exercise its discretion in full knowledge of the pleas and arguments thus put forward and take a formal decision regarding the possibility of classifying all the disputed contracts as fixed-term contracts, a decision which could subsequently be challenged by a complaint and later, if appropriate, by an appeal.
45. In any event, if the Parliament’s view on that point is accepted, it must be concluded that the complaint lodged by the applicants on 19 December 2006 may, in the light of its purpose and content, readily be interpreted as being directed against the last contracts as session auxiliaries concluded between the Parliament and the applicants during the preceding three months, copies of those contracts having been produced by the applicants at the request of the Tribunal. The fact that those contracts were produced at the last stage of the oral procedure – what is more, without the defendant raising any objections in that regard – is not capable of entailing the formal inadmissibility of the application.
46. As regards the second part of the request of 18 September 2006, the applicants’ compensation claims originate in the allegedly wrongful conduct of the Parliament, in so far as the latter, over many years, deprived the applicants of any entitlement to paid leave, by reason of their contracts being very short-term session auxiliary contracts. The applicants were therefore obliged to submit a request to the AECCE under Article 90(1) of the Staff Regulations seeking compensation for the alleged loss and, if appropriate, to pursue the procedure with a complaint against the decision rejecting the request. That is precisely what happened in the present case, as is apparent from paragraphs 41 to 44 above.
47. The present action is therefore to be taken as being directed against the decision of 26 October 2006 rejecting the request dated 18 September 2006 (‘the contested decision’), both as regards the request to amend the successive fixed-term session auxiliary contracts of each of the applicants by reclassifying them as single contracts as a member of the contract staff for an indefinite period under Articles 3a or 3b of the Conditions of Employment and as regards the request for compensation.
48. Thirdly and lastly, it is necessary to give a ruling on the scope or admissibility of some of the claims made in this action.
49. The applicants claim in particular that the Tribunal should:
‘– [annul] the express decision of the … Parliament of 20 April 2007 rejecting [their] complaint of 19 December 2006,
As a consequence:
– [amend] all the fixed-term contracts entered into between [them] and the Parliament by reclassifying them as single contracts for an indefinite period;
– [rule] that the … Parliament is required to reinstate [them] under contracts for an indefinite period;
– [rule] that members of the auxiliary staff of the … Parliament called “session auxiliaries” are entitled to compensation representing the entitlement to paid leave which they acquired in respect of all the periods worked since their employment began.’
50. By the first claim set out above the applicants seek annulment of the Decision of 20 April 2007 rejecting their complaint. In that regard it should be noted that, according to case-law, an administrative complaint and its rejection, whether express or implied, by the administration constitute an integral part of a complex procedure. Consequently, the action before the Tribunal, even if formally directed against the rejection of the complaint, has the effect of bringing before the Tribunal the act adversely affecting the applicant, against which the complaint was submitted (Case 293/87 Vainker
v Parliament
[1989] ECR 23, paragraph 8; Case C‑343/87 Culin
v Commission
[1990] ECR I‑225, paragraph 7; Case T‑36/94 Capitanio
v Commission
[1996] ECR-SC I‑A‑449 and II‑1279, paragraph 33, and Case T‑375/02 Cavallaro
v Commission
[2005] ECR-SC I‑A‑151 and II‑673, paragraph 59). In this case, the action must be taken as being directed against the decision of 26 October 2006 rejecting the applicants’ request of 18 September 2006.
51. By the second and third claims outlined above, the applicants are in reality requesting the Tribunal to issue directions to the institution concerned or give rulings.
52. However, in the context of an action brought under Article 91 of the Staff Regulations, the Community court may not make declarations or findings of principle nor give directions to a Community institution without encroaching upon the powers of the executive (see, to that effect, Case T‑156/89 Valverde Mordt
v Court of Justice
[1991] ECR II‑407, paragraph 150; Case T‑583/93 P
v Commission
[1995] ECR-SC I‑A‑137 and II‑433, paragraphs 17 and 18; and Order of the Civil Service Tribunal of 16 May 2006 Voigt
v Commission
F‑55/05 ECR-SC I‑A‑1‑15 and II‑A‑1‑51, paragraph 25).
53. The foregoing second and third claims must therefore be rejected as inadmissible.
54. Lastly, the fourth claim can be seen merely to reiterate the content of the second part of the request of 18 September 2006, referred to in paragraphs 36 and 46 above, rejected by the decision of 26 October 2006 against which this action is brought. The fourth claim is thus indistinguishable from the first, as set out above.
The action for annulment
1. Arguments of the parties
55. The arguments put forward by the applicants in support of their action for annulment are to be understood as being based on a plea of illegality directed against Article 78 of the Conditions of Employment.
56. The applicants consider that by applying in respect of session auxiliaries the conditions of recruitment and remuneration provided for in an agreement between the Parliament, the Council of Europe and the Assembly of Western European Union (WEU) (‘the agreement’), Article 78 of the Conditions of Employment had the effect of excluding that category of staff from the scope of the Community regulations applying to officials and to contract staff and auxiliary staff, and even of causing them to be excluded from all sources of law, be it national or Community law.
57. It follows, according to the applicants, that for years session auxiliaries worked in a situation in which they were deprived of all rights.
58. It was incumbent on the Council of the European Union, under Article 283 EC, to make the staff concerned subject to staff rules, even if these were tailored to meet the specific circumstances of their duties, rather than exclude them from any staff rules, as Article 78 of the Conditions of Employment does.
59. The applicants add that making the fate of some 300 staff subject solely to the volition of three employers, even if they are in the public sector, is a legal aberration, since the agreement between the Parliament, the Council of Europe and the Assembly of WEU is not a source of law. That agreement constitutes a contractual source of law only in so far as relations between those three institutions inter se
are concerned, not in so far as their relations with their staff are concerned. The agreement is of no legal value, whether regulatory, contractual or for the purposes of staff rules.
60. It is therefore necessary to disregard the provisions of Article 78 of the Conditions of Employment and, in the absence of relevant national legislation, apply the founding principles of the European Union.
61. The applicants rely in that regard, first, on the European Social Charter, signed at Turin on 18 October 1961, which guarantees fair working conditions as regards pay and working hours and which prohibits all discrimination.
62. They contend in that regard that the only objective difference that might be found between session auxiliaries and other categories of staff employed under indefinite-term contracts is that resulting from the particular way in which the plenary sessions of the Parliament operate in Strasbourg. Thus, the Parliament has the right to employ session auxiliaries for only five days each month due to the specific nature of their duties. None the less, it cannot apply to them staff rules that are insecure and make them subject solely to the volition, albeit the combined volition, of three public employers.
63. The Parliament thus discriminated between staff performing the same type of duties, although there is no objective justification for such discrimination and Article 283 EC does not allow a category of staff to be excluded from entitlement to be covered by staff rules.
64. The applicants add that session auxiliaries are recruited to permanent employment organised according to a particular working cycle and not to insecure employment.
65. Secondly, the applicants rely on Convention C 111 of the International Labour Organisation (ILO) concerning discrimination in respect of employment and occupation, adopted on 25 June 1958, and ILO Convention C 158 concerning termination of employment at the initiative of the employer, adopted on 22 June 1982, in particular Article 4 of the latter Convention, which provides that ‘[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’.
66. In the present case, under the arrangements it has put in place for session auxiliaries, the Parliament is at least potentially in a position to release such staff members at the end of every five-day contract without the persons concerned having an effective remedy before a court. Moreover, outsourcing their work to a short-term employment agency, in so far as this involves terminating their contracts of employment with the Parliament, constitutes termination of employment on no express ground.
67. Thirdly, the applicants rely on the Framework Agreement, the second paragraph of the preamble to which states that contracts for an indefinite period are the general form of employment relationships between employers and workers. The applicants contend that only employment for an indefinite period puts workers in a position in which they genuinely have legal protection, stable employment and a guarantee of respect for their fundamental rights.
68. Lastly, the applicants take the view that Case T‑109/96 Gebhard
v Parliament
[1998] ECR II‑2785 predates Directive 1999/70 and does not concern the rules applying to session auxiliaries. Moreover, contrary to what is stated in paragraph 41 of that judgment, session auxiliaries are not employed to meet specific needs.
69. The Parliament observes that by their actions the applicants are claiming that the Community legislature failed to meet its obligation set out in Article 283 EC to lay down special staff rules for session auxiliaries. The action should therefore be regarded as an action for failure to act. According to the Parliament, such an action must be dismissed as inadmissible for the following reasons.
70. Firstly, at the very least, the action should have been directed against the Council, which, under Article 283 EC, is the legislature in the matter concerned.
71. Secondly, according to settled case-law it is possible to bring an action for failure to act only where the failure of the institution concerned to act continues after the invitation to act has been issued, and thus only if the institution remains silent or provides a holding response. An action for failure to act is therefore excluded where the institution adopts a position other than that demanded of it, in which case the person concerned has the remedy of an action for annulment.
72. In this case, since the Parliament, after the letter of 19 December 2006 had been sent and the complaint of 21 June 2007 submitted, neither kept silent nor made a holding response, the only action the applicants were entitled to bring was an action for annulment.
73. Thirdly, an action for failure to act is admissible, under the fourth paragraph of Article 230 EC, only if the applicant is the addressee of the act. According to settled case-law, an action for failure to act concerning a provision of a general regulatory character which is not an act of direct and individual concern to the applicant must be dismissed as inadmissible.
74. The action in the present case is seeking the adoption of new rules applicable to all session auxiliaries.
75. Fourthly, the Parliament questions the possibility of bringing an action for failure to act before the Tribunal. Under Article 3(1)(c) of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), the Court of First Instance is to exercise jurisdiction in actions for failure to act brought against an institution by natural or legal persons. That assignment of jurisdiction does not appear to have been altered when the Civil Service Tribunal was established.
76. In the alternative, if the action for failure to act is declared admissible by the Tribunal, the Parliament considers that there was no failure to act on the part of the legislature and that the action must therefore be dismissed as unfounded. In fact, Article 283 EC was implemented by the Council’s adoption of the Conditions of Employment, containing Article 78 specifically covering the situation of session auxiliaries.
77. The applicants’ assertion that session auxiliaries had been placed in a situation in which they were deprived of all rights is not borne out by the facts. According to the Parliament, such staff belong to the category of auxiliary staff covered by Title III of the Conditions of Employment and, save for the derogating provisions concerning their recruitment and remuneration, enjoyed all the rights and were subject to all the obligations of auxiliary staff: thus, they benefited from social security, paid taxes and, if they wished, could be registered for unemployment insurance like other auxiliary staff.
78. Moreover, as regards the plea of illegality raised by the applicants, which was based on the incompatibility of Article 78 of the Conditions of Employment with certain international instruments, the Parliament queries the admissibility of that plea in the absence of a legal link between the contested individual decisions and the general act whose unlawfulness is alleged. In fact, the individual decisions that are the subject of the action are constituted by the refusal, dated 20 April 2007, of the AECCE to convert the applicants’ contracts. At that time there was no longer any link between that decision by the administration and Article 78 of the Conditions of Employment, which no longer applied after 1 January 2007.
79. Moreover, the Conditions of Employment, being rules adopted by the Community legislature, are applicable to all persons, including the institutions. Hence, the Parliament was required to implement the provisions of the Conditions of Employment in connection with the recruitment of session auxiliaries, although it should be borne in mind that, according to case-law, measures of the Community institutions are in principle presumed to be lawful until such time as they are annulled or declared unlawful by a Community court.
80. In any event, the Parliament observes that compliance with the European Social Charter, signed at Turin on 18 October 1961, is subject to review by the European Committee of Social Rights of the Council of Europe, and that the ILO Conventions, which come under general international law, do not constitute a source of Community law since those Conventions were not concluded at Community level. As the Community is not bound by the Conventions, the applicants are not entitled to rely on the incompatibility of Article 78 of the Conditions of Employment with the provisions of those Conventions. Moreover, since the Conventions relied upon do not form part of the Community legal order, they do not confer rights on the applicants in their relations with the Parliament.
81. Lastly, the Parliament relies on the judgment in Gebhard
v Parliament, in which the Court of First Instance held that ‘the purpose of Article 78 of the Conditions of Employment is to enable the parliamentary institution of the European Communities to meet its specific needs for large numbers of additional staff to ensure that the meetings of its various decision-making bodies are conducted properly’ (paragraph 41). The Parliament submits that in that judgment the Court of First Instance found that the Parliament did not ‘appear to have exceeded the limits of the derogation granted to it by the Council in Article 78 of the Conditions of Employment, in adopting, pursuant to that provision, the internal rules applicable to session interpreters’ (paragraph 43).
82. Such a finding is also applicable to the regulations concerning session auxiliaries in general, in so far as the derogation contained in Article 78 of the Conditions of Employment covers all auxiliary staff engaged by the Parliament for the duration of its sessions.
83. The Parliament adds that the judgment in Gebhard
v Parliament
was confirmed by case-law postdating Directive 1999/70 (Case T‑275/01 Alvarez Moreno
v Parliament
[2004] ECR-SC I‑A‑171 and II‑765; Case T‑276/01 Garroni
v Parliament
[2004] ECR-SC I‑A‑177 and II‑795; Case F‑10/06 André
v Commission [2006] ECR-SC I‑A‑1‑183 and II‑A‑1‑755).
2. Findings of the Tribunal
84. In support of their action for annulment of the contested decision on the basis that the contested contracts were neither reclassified as part-time contracts for an indefinite period nor based on Articles 3a or 3b of the Conditions of Employment, the applicants raise a plea of illegality directed against Article 78 of the Conditions of Employment.
85. It should be noted first of all that Article 78 of the Conditions of Employment permits a derogation from the conditions applying to auxiliary staff, as laid down in Title III of the Conditions of Employment, in that it allows the Parliament to limit the period of engagement of auxiliary staff needed for the organisation of its sessions to the duration of the work of such sessions. As the Court observed in Case 43/84 Maag
v Commission
[1985] ECR 2581, paragraph 19, in connection with freelance interpreters recruited by the Commission, the conditions relating to auxiliary staff cannot in principle apply to engagements each of which is of short duration but which recur frequently from year to year. It would have been the same, in the absence of the derogation contained in Article 78 of the Conditions of Employment, with regard to the engagement of persons solely for the duration of sessions of the Parliament.
86. As the Court of First Instance also held in Gebhard
v Parliament
(paragraphs 40 and 41), the purpose of Article 78 of the Conditions of Employment is to enable the Parliament to meet its specific needs for large numbers of additional staff to ensure that the meetings of its various decision-making bodies are conducted properly. To that end, the provision in question refers to the conditions of recruitment of the additional staff necessary for parliamentary activities, agreed on previously between three European institutions or organisations with a specific interest in that respect. The second paragraph of Article 78 of the Conditions of Employment states that the provisions of the agreement and any subsequent amendment thereto are to be notified to the competent budgetary authorities one month before their entry into force.
Admissibility of the plea of illegality
87. In this connection, it should be noted that, according to case-law, in order for a plea of illegality to be admissible, there must be a sufficiently close connection between the contested individual measure at issue and the measure against which the plea is raised, so that the inapplicability of the one will necessarily have an effect on the lawfulness of the other (see, to that effect, Case 32/65 Italy
v Council and Commission
[1966] ECR 389, at page 409, and Joined Cases C‑432/98 P and C‑433/98 P Council
v Chvatal and Others
[2000] ECR I‑8535, paragraph 33).
88. In the present case, given that the action is directed against the rejection of the applicants’ request dated 18 September 2006 for their successive fixed-term contracts as session auxiliaries to be reclassified as single part-time contracts for an indefinite period, under Articles 3a or 3b of the Conditions of Employment, it is to be noted that the contested decision purports to have been adopted on the basis of Article 78 of the Conditions of Employment, so that the unlawfulness of that Article, assuming it were established for whatever reason, would necessarily have an incidence on the rejection of the applicants’ request.
89. However, in the event that Article 78 of the Conditions of Employment were unlawful and had to be declared inapplicable in the particular circumstances, the plea of illegality raised by the applicants would still not lead to annulment of the contested decision if it became apparent that the Conditions of Employment did not contain any specific provision that could constitute an adequate legal basis to meet the applicants’ request for a part-time contract for an indefinite period. In the present case, the applicants grounded their request to that effect on Articles 3a or 3b of the Conditions of Employment. Consequently, even if that question goes rather to the relevance and thus to the merits of the plea of illegality raised by the applicants than to its admissibility, it is useful at the stage of considering that plea to consider whether Articles 3a and 3b are capable prima facie of constituting the abovementioned adequate legal basis, in order to identify what is truly at stake in the present case.
90. According to the Conditions of Employment, only a contract as a member of the temporary staff, within the meaning of Article 2(a) or (c), or as a member of the contract staff, within the meaning of Article 3a, may be concluded for an indefinite period according to the conditions laid down in Articles 8 and 85 of the Conditions of Employment. The applicants could clearly not aspire to obtain a contract within the meaning of Article 2(c) of the Conditions of Employment, which provides for the engagement of a temporary staff member to assist a person holding an office provided for in the Treaties. Nor can they, in view of the nature of their services, designed to meet intermittent needs of very short duration recurring from month to month, aspire to the status of a member of the temporary staff within the meaning of Article 2(a) of the Conditions of Employment, who, in the service of the Community administration, fills a permanent post ‘which is included in the list of posts appended to the section of the budget relating to each institution’ and which, as the Court noted in Maag v Commission
(paragraph 17), is irreconcilable with the tasks carried out by support staff.
91. Article 3a of the Conditions of Employment, however, which also allows the conclusion of contracts for an indefinite period, covers the engagement of staff not assigned to a post ‘included in the list of posts appended to the section of the budget relating to the institution concerned’, in order, in particular, ‘to carry out manual or administrative support service tasks’. It cannot be excluded from the outset that, on the assumption that Article 78 of the Conditions of Employment is inapplicable because of its illegality, recourse to Article 3a of the Conditions of Employment might satisfy the applicants’ request to be given quarter-time contracts for an indefinite period.
92. The Parliament maintains, however, that under the third paragraph of Article 1 of Annex IVa to the Staff Regulations, to which reference is made in Article 55a(4) of the Staff Regulations, applicable by analogy to members of the contract staff (and also to members of the temporary staff), under Article 16 in conjunction with Article 91 of the Conditions of Employment, part-time work of a member of the contract staff may not be less t han half the normal full-time working time. That provision therefore excludes, in any event, the possibility of the Parliament concluding quarter-time contract staff contracts with staff assigned solely to the work of the sessions.
93. Such an interpretation of the third paragraph of Article 1 of Annex IVa to the Staff Regulations cannot be upheld. Article 55a of the Staff Regulations, the procedure for applying which is laid down in that annex, concerns merely the treatment of an official’s request for authorisation to work part-time. It does not regulate the circumstances in which an institution may take the initiative to conclude a part-time contract on the basis of the actual nature of the activity covered by such a contract.
94. It follows from all the foregoing that the plea of illegality raised by the applicants is not intended merely to challenge the lawfulness of Article 78 of the Conditions of Employment, but may also, as a result of the inapplicability of that Article, have the consequence of causing the Parliament, in order to meet its intermittent needs for large numbers of additional staff for the duration of its sessions, to resort to other contractual arrangements, and it cannot be excluded from the outset that these might include recourse to Article 3a of the Conditions of Employment.
95. Given the sufficiently close connection between the contested decision, on the one hand, and Article 78 of the Conditions of Employment, against which the plea of inadmissibility is raised, on the other, the applicants must therefore be regarded as being entitled to challenge indirectly the lawfulness of Article 78 of the Conditions of Employment.
The merits of the plea of illegality
96. In their plea of illegality directed against Article 78 of the Conditions of Employment, the applicants complain that the Community legislature failed to adopt specific rules in respect of session auxiliaries suited to the particular circumstances of their duties, and refrained from laying down staff rules, merely making reference to an agreement of a contractual nature between the Parliament, the Council of Europe and the Assembly of WEU. The applicants were thus kept in a situation in which they were deprived of all rights and in an insecure employment relationship, although they were recruited in order to meet needs that were permanent, albeit intermittent. In this respect, Article 78 of the Conditions of Employment is unlawful on various grounds:
– firstly, the Community legislature thus abdicated its responsibilities for enacting staff rules, in breach of Article 283 EC;
– secondly, it discriminated between staff covered by a full and stable system of rules, on the one hand, and session auxiliaries, on the other hand, in breach of the European Social Charter, signed at Turin on 18 October 1961, and ILO Convention C 111; and,
– thirdly, it amounted to a denial of stable employment, which the applicants were entitled to expect, in breach of ILO Convention C 158 and Directive 1999/70.
The alleged breach of Article 283 EC
97. In this connection, it should be noted that session auxiliaries are covered by Title III of the Conditions of Employment concerning auxiliary staff, which are derogated from only as regards the conditions of recruitment and remuneration of such staff, as laid down in the agreement. That means that the other provisions of Title III, concerning in particular working conditions and social security, continue to apply, regardless of the specific internal rules, adopted by the Bureau or the Secretary-General of the Parliament, designed to implement or supplement the rules contained in the Conditions of Employment.
98. It thus follows that until 31 December 2006 staff engaged by the Parliament to meets its needs for staff during sessions were undoubtedly covered by the rules of the Conditions of Employment. It is therefore incorrect to claim that the Community legislature failed to meet its legislative responsibilities with regard to staff rules.
99. The reference back, so far as the conditions of recruitment and remuneration of session auxiliaries are concerned, to the agreement does not constitute an abdication by the legislature of the exercise of the power conferred on it by Article 283 EC to lay down the Staff Regulations and Conditions of Employment. On the contrary, it is in the exercise of precisely that power that the Council, taking into account the common interests and needs of three European organisations to ensure the proper functioning of sessions of their decision-making bodies, decided that it should align the conditions for the recruitment and remuneration of staff recruited for the duration of the work of the sessions of the Parliament with those agreed between the three institutions or organisations in question, subject to review by the budgetary authorities as provided in the second paragraph of Article 78 of the Conditions of Employment. There remains the further requirement that the agreement itself, to which Article 78 of the Conditions of Employment refers back, should not be inconsistent with any higher-ranking rule of Community law, this being an issue which is considered below in connection with the other pleas put forward by the applicants.
100. The plea alleging breach of Article 283 EC has no factual basis and must therefore be rejected.
Alleged breach of the principle of non-discrimination
101. As regards the plea alleging breach of the principle of non-discrimination, as enshrined in the European Social Charter signed at Turin on 18 October 1961, and ILO Convention C 111, it should be noted, without there being any call to rule on the applicability and scope of the two international instruments relied upon in this connection by the applicants, that the principles of equal treatment and non-discrimination are fundamental principles of the Community legal order.
102. It has been consistently held that there is a breach of the principle of equal treatment in particular where two classes of persons whose factual and legal situations are not essentially different are treated differently and the discrimination is not objectively justified (Case C‑389/98 P Gevaert
v Commission
[2001] ECR I‑65, paragraph 54; Case T‑100/92 La Pietra
v Commission
[1994] ECR–SC I‑A‑83 and II‑275, paragraph 50; Case T‑66/95 Kuchlenz-Winter
v Commission
[1997] ECR II‑637, paragraph 55; Joined Cases T‑66/96 and T‑221/97 Mellett
v Court of Justice
[1998] ECR-SC I‑A‑449 and II‑1305, paragraph 129; and order of the Court of First Instance of 9 July 2007 in Case T‑415/06 P De Smedt
v Commission [2007] ECR II-0000, paragraph 52).
103. The situation of staff recruited in order to meet intermittent needs for large numbers of support staff, encountered by the Parliament only for the duration of its sessions, is not comparable to that of staff recruited to meet continuous everyday needs which require the presence of personnel comprising officials and, where appropriate, members of the temporary staff or the contract staff within the meaning of Articles 3a or 3b of the Conditions of Employment.
104. In addition, there can be no cause for calling in question the differences in status between the various categories of persons employed by the Communities in so far as some of those categories may enjoy advantages that are not granted to others. Each of those categories of staff is defined in accordance with the legitimate requirements of the Community administration and the nature of the tasks which it has to perform (Joined Cases 118/82 to 123/82 Celant and Others
v Commission
[1983] ECR 2995, paragraph 22, and order in De Smedt
v Commission, paragraph 55).
105. In particular, by introducing the special category of session auxiliaries, the Council made use of its freedom to regulate that category of staff in a particular way in relation to the specific needs of the Parliament and the nature of the tasks it is required to perform, in the same way as it used that freedom with regard to the special category of conference interpreters, who may also be called on to work for short periods and to meet intermittent, or even occasional, needs.
106. The plea alleging breach of the principle of non-discrimination must therefore be rejected.
Stable employment
107. It should be observed first of all that the plea alleging denial of stable employment, in that Article 78 of the Conditions of Employment enables the Parliament to release session auxiliaries at the end of each contract, depriving them of the general form of employment relationships between employers and workers provided by contracts for an indefinite period, in reality raises the question whether there is a rule or principle of higher-ranking law that requires the Parliament, when laying down the conditions of recruitment of session auxiliaries, to have recourse to employment relationships for an indefinite period but on a part-time basis.
108. In that regard, the applicants rely, in essence:
– first, on Article 4 of ILO Convention C 158, which provides that ‘[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’;
– second, on the Framework Agreement and, in particular, the second paragraph of the preamble and paragraph 6 of its general considerations, according to which contracts of an indefinite duration are ‘the general form of employment relationship between employers and workers’, providing stable employment, and it is only in certain circumstances that fixed-term contracts correspond to the needs of both employers and workers.
109. Article 4 of ILO Convention C 158, as such, has no relevance in the present context since it does not per se answer the question whether or not the Parliament is entitled to conclude an auxiliary staff contract solely for the duration of a parliamentary session. Should the answer to that question turn out to be in the affirmative, the expiry of each fixed-term contract could not without more be regarded as termination of employment, which needed to be justified by specific reasons connected with the capacity or conduct of the staff member or else be based on the operational requirements of the Parliament, since the contract would have ended because the date limit for its validity had been reached.
110. As regards the argument alleging breach of the Framework Agreement, consideration of this requires the preliminary question whether Directive 1999/70 may be relied on against a Community institution to be examined first.
– Whether Directive 1999/70 may be relied on by an official or servant against a Community institution
111. First of all, directives are addressed to the Member States and not to the Community institutions. The provisions of Directive 1999/70 and of the Framework Agreement annexed thereto cannot, therefore, be treated, as such, as imposing any obligations on the institutions in their relations with their staff (see, to that effect, Case C‑25/02 Rinke [2003] ECR I‑8349, paragraph 24, and Case T‑495/04 Belfass
v Council [2008] ECR II‑7817, paragraph 43).
112. However, that consideration does not in itself totally preclude a directive being relied upon in relations between institutions and their officials or servants.
113. The provisions of a directive may, in the first place, be indirectly applicable to an institution if they constitute the expression of a general principle of Community law that it must then apply as such (see, to that effect, Rinke, paragraphs 25 to 28, in respect of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ 1976 L 39, p. 40).
114. As regards the present case, although it is viewed as a major element in the protection of workers (see Case C‑144/04 Mangold
[2005] ECR I‑9981, paragraph 64, and Case C‑268/06 Impact
[2008] ECR I-2483, paragraph 87), stable employment does not constitute a general principle of law in the light of which the lawfulness of a measure adopted by an institution may be assessed. In particular, it by no means follows from Directive 1999/70 and the Framework Agreement that stable employment has been made a binding rule of law. Moreover, recitals 6 and 7 of the preamble to the directive, and the first paragraph of the preamble to, and paragraph 5 [of the general considerations] of the Framework Agreement itself highlight the need to achieve a balance between flexibility and security.
115. Stable employment does, however, constitute an objective pursued by the signatory parties to the Framework Agreement, clause 1(b) of which provides that the purpose of the agreement is to ‘establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.
116. Secondly, a directive may also be binding on an institution where the latter, within the scope of its organisational autonomy and within the limits of the Staff Regulations, has sought to carry out a specific obligation laid down by a directive or in the specific instance where an internal measure of general application itself expressly refers to measures laid down by the Community legislature pursuant to the Treaties. Thus, Article 1e(2) of the Staff Regulations provides that officials are to be ‘accorded working conditions complying with appropriate health and safety standards at least equivalent to the minimum requirements applicable under measures adopted in these areas pursuant to the Treaties’. That provision applies by analogy to members of the temporary staff and members of the contract staff under the first paragraph of Article 10 and Article 80(4) of the Conditions of Employment.
117. However, the purpose of Directive 1999/70 is not to improve the working environment by increasing protection for the health and safety of the workforce properly speaking, but to approximate national law and practice in the field of working conditions in respect of the duration of employment relationships.
118. Thirdly, and in any event, it should be noted that the duty to cooperate in good faith which follows from Article 10 EC not only requires Member States to take all the measures necessary to guarantee the application and effectiveness of Community law (Case C‑262/97 Engelbrecht [2000] ECR I‑7321, paragraph 38), it also imposes on the Community institutions mutual duties to cooperate in good faith with the Member States (Case 230/81 Luxembourg
v Parliament
[1983] ECR 255, paragraph 37; Case C‑383/00 Commission
v Germany
[2002] ECR I‑4219, paragraph 18; Case C‑275/00 First and Franex
[2002] ECR I‑10943, paragraph 49; Case C‑344/01 Germany
v Commission
[2004] ECR I‑2081, paragraph 79; and Case C‑511/03 Ten Kate Holding Musselkanaal and Others
[2005] ECR I‑8979, paragraph 28), and between the institutions themselves (see, to that effect, Case C‑65/93 Parliament
v Council
[1995] ECR I‑643, paragraph 23).
119. In this respect, it is incumbent on the institutions to ensure as far as possible consistency between their own internal policy and their legislative action at Community level, in particular as addressed to Member States. Thus, institutions must take into account, in their conduct as employers, legislative provisions laying down in particular minimum requirements designed to improve the living and working conditions of workers in the Member States through the approximation of national laws and practices and, in particular, the Community legislature’s intention to make stable employment a prime objective as regards labour relations within the European Union. That obligation is all the more significant since the administrative reform introduced by Regulation No 723/2004 reinforced the trend towards employment of staff under contract in the European civil service.
120. As regards in particular the Framework Agreement, which seeks to approximate national laws and practices by laying down minimum requirements in respect of fixed-term working, it is therefore necessary for the Parliament, in accordance with its duty to cooperate in good faith, to interpret as far as possible, the provisions of the Conditions of Employment in the light of the letter and purpose of the Framework Agreement in order to achieve the result the latter is intended to achieve.
121. Lastly, the abovementioned consequences of the obligation to cooperate in good faith stem also, in this case, from settled case-law, according to which, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs, the objects of the rules of which it is part, and the provisions of Community law as a whole (see, to that effect, Case 283/81 CILFIT and Others
[1982] ECR 3415, paragraph 20; Case 292/82 Merck
[1983] ECR 3781, paragraph 12; and Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical et Sumika Fine Chemicals
v Commission [2005] ECR II‑4065, paragraph 47). No institution may therefore, when applying or interpreting the provisions of the Conditions of Employment concerning the duration of contracts, disregard the minimum requirements on fixed-term work adopted at Community level.
122. In the light of the above, the plea of illegality raised by the applicants against Article 78 of the Conditions of Employment must be rejected, since Directive 1999/70 does not in itself provide the basis for a plea of illegality against a provision of the Council Regulation laying down the Staff Regulations and the Conditions of Employment that conflicts with the Framework Agreement.
123. None the less, in the circumstances of the present case and within the limits set out in paragraphs 118 to 121 above, the Directive, and the Framework Agreement it is designed to implement, may be relied on by the applicants against the Parliament for the purposes of interpreting the rules of the Staff Regulations and the Conditions of Employment in a manner that would, in so far as possible, meet the requirements laid down in the Framework Agreement.
124. That said, the analysis set out below of the provisions of the Framework Agreement relied on by the applicants does not in any event disclose any cause for concluding that the Parliament infringed Article 78 of the Conditions of Employment, interpreted in the light of the purposes and minimum requirements contained in those provisions.
– The content of the Framework Agreement
125. First, it should be noted that Directive 1999/70 and the Framework Agreement can apply to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies (Case C‑212/04 Adeneler and Others
[2006] ECR I‑6057, paragraph 54; Case C‑53/04 Marrosu and Sardino
[2006] ECR I‑7213, paragraph 39; and Case C‑180/04 Vassallo [2006] ECR I‑7251, paragraph 32).
126. The Framework Agreement is based on the premise that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see paragraphs 6 and 8 of the general considerations in the Framework Agreement) ( Adeneler and Others, paragraph 61).
127. Consequently, the benefit of stable employment is viewed as a major element in the protection of workers (see Mangold, paragraph 64), whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers (see the second paragraph of the preamble to the Framework Agreement and paragraph 8 of the general considerations) ( Adeneler and Others, paragraph 62).
128. From this angle, the Framework Agreement seeks to place limits on successive recourse to the latter category of employment relationship, a category regarded as a potential source of abuse to the disadvantage of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure ( Adeneler and Others, paragraph 63).
129. Thus, clause 5(1) of the Framework Agreement is intended specifically to ‘prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.
130. To this end, clause 5 imposes on Member States the obligation to introduce into domestic law one or more of the measures listed in clause 5(1)(a) to (c) where equivalent legal provisions intended to prevent effectively the misuse of successive fixed-term employment contracts do not already exist in the Member State concerned ( Adeneler and Others, paragraph 65). However, the Framework Agreement neither lays down a general obligation on the Member States, following a certain number of renewals of fixed-term contracts or completion of a certain period of work, to provide for the conversion of the employment relationship into contracts of indefinite duration, nor prescribes the precise conditions under which fixed-term employment contracts may be used (see, to that effect, Adeneler and Others, paragraph 91, and Marrosu and Sardino, paragraph 47).
131. The measures listed in clause 5(1)(a) include ‘objective reasons justifying the renewal of such contracts or relationships’.
132. The signatory parties to the Framework Agreement considered that the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse (see paragraph 7 of the general considerations in the Framework Agreement).
133. However, in the present case, it is apparent from the case-file as a whole that it is indeed ‘objective reasons’ which are essentially relied on by the Parliament in order to justify renewing the contracts of session auxiliaries when each new parliamentary session is held.
134. In that regard, the Cour of Justice held, in Adeneler and Others, paragraph 69, that the concept of ‘objective reasons’, within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State ( Adeneler and Others, paragraph 70).
135. In the present case, as the Parliament rightly argued, renewal of the contested fixed-term contracts responded to a genuine need, in that such renewal was necessary in order to enable it to discharge the responsibilities incumbent on it. Recourse to Article 78 of the Conditions of Employment, up until 1 January 2007, enabled it to meet its intermittent needs for large numbers of staff solely for the duration of its sessions. It is common ground that the considerable increase in the amount of the Parliament’s activity taking place in Strasbourg, for a period limited to four or five days per month, entailed a distinct alteration in its needs for staff to carry out specific and diverse duties, such as those of crèche worker, trained child care assistant, typist, technician, cook, language teacher, translator, messenger or removal man. Such needs were foreseeable, but the additional activity was none the less not sustained and permanent. Such circumstances provided valid justification, in the light of clause 5(1)(a) of the Framework Agreement, for using successive fixed-term contracts as a member of the auxiliary staff.
136. It is true that, as the applicants observed, under the first paragraph of Article 58 of the Conditions of Employment members of the auxiliary staff do not start to acquire entitlement to paid leave until they have completed a minimum of 15 days or half a month for each month’s service, so that session auxiliaries are deprived of all entitlement to such leave solely because they are engaged under contracts of very short duration falling below that minimum.
137. The applicants have not, however, raised a plea of illegality against the first paragraph of Article 58 of the Conditions of Employment. There is therefore no call for the Tribunal, on pain of trespassing beyond the ambit of the dispute as defined by the applicants, to consider that issue.
138. Having regard to all the foregoing, the plea of illegality raised by the applicants against Article 78 of the Conditions of Employment cannot be upheld, nor did the Parliament fail to comply with the requirements of that Article as read in the light of Directive 1999/70. The application for annulment must accordingly be dismissed.
The request for compensation
1. Arguments of the parties
139. The applicants claim that the Parliament should be ordered to pay financial compensation in respect of paid leave for periods worked and should pay each applicant the sum of EUR 2 000 for their ‘irrecoverable’ costs of bringing proceedings.
140. The Parliament counters that, under Article 58 of the Conditions of Employment, members of the auxiliary staff are entitled to two working days’ paid leave for each month of service, with any period of less than fifteen days or half a month giving no leave entitlement. In those circumstances, session auxiliaries, who work a maximum of five days each month, cannot claim paid leave. There is therefore no call to afford the applicants any financial compensation whatsoever.
141. Moreover, the Parliament points out that, under Article 94 of the Rules of Procedure [of the Tribunal], proceedings before the latter are free of charge. Those rules do not however contain the option for an unsuccessful party to be ordered to pay ‘irrecoverable’ costs of bringing proceedings. The application for payment of such costs should therefore be declared inadmissible.
2. Findings of the Tribunal
142. It is settled case-law that the Community can be held liable for damages only if a number of conditions are satisfied as regards the illegality of the allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered (Case 111/86 Delauche
v Commission [1987] ECR 5345, paragraph 30; Joined Cases T‑331/00 and T‑115/01 Bories and Others
v Commission [2003] ECR-SC I‑A‑309 and II‑1479, paragraph 192; and Case F‑107/06 Berrisford
v Commission [2007] ECR-SC I‑A‑0000 and II‑0000, paragraph 109). Where one of those conditions is not met, the claim for compensation is rejected in its entirety, without it being necessary to examine the other conditions.
143. With regard to the unlawfulness of the conduct of which the Parliament is accused, the applicants did not set out in their applications any arguments other than those put forward in support of their plea of illegality relied on against Article 78 of the Conditions of Employment in the context of the application for annulment. As is apparent from paragraph 96 above, that plea is based, in essence, on three claims, namely, breach of Article 283 EC, breach of the principle of non-discrimination, and denial of stable employment. The plea of illegality has been rejected, with none of the claims made in support of that plea being upheld.
144. The claim for compensation must accordingly be rejected since the applicants have not established to the requisite legal standard the unlawfulness of the conduct alleged against the Parliament.
Costs
145. Under Article 122 of the Rules of Procedure of the Civil Service Tribunal, the provisions of Title 2, Chapter 8, of those rules on costs apply only to cases brought before the Tribunal from the date on which those rules enter into force, namely, 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance continue to apply mutatis mutandis
to cases pending before the Tribunal before that date.
146. Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 88 of those rules, in proceedings between the Communities and their servants the institutions are to bear their own costs. Since the applicants have been unsuccessful, the parties must be ordered to bear their own costs.
Operative part
On those grounds,
THE TRIBUNAL (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders each party to bear its own costs.