62007FJ0069_EN
Parties
Grounds
Operative part
Parties
In Joined Cases F‑69/07 and F‑60/08,
APPLICATIONS under Articles 236 EC and 152 EA,
O,
a member of the contract staff of the Commission of the European Communities, residing in Brussels (Belgium), represented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers,
applicant,
v
Commission of the European Communities,
represented by D. Martin and L. Lozano Palacios, acting as Agents,
defendant,
supported by
Council of the European Union,
represented initially in Case F‑69/07 by I. Šulce and M. Simm, acting as Agents, and in Case F‑60/08 by I. Šulce and K. Zieleśkiewicz, acting as Agents, and subsequently, in both cases, by K. Zieleśkiewicz and M. Bauer, acting as Agents,
intervener,
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 10 February 2009,
gives the following
Judgment
Grounds
1. The applicant submitted two applications which were received at the Registry of the Tribunal by fax on 12 July 2007 and 25 June 2008 respectively (the originals having been lodged on 13 July 2007 and 1 July 2008 respectively). Those applications seek annulment:
– in Case F‑69/07, of the decisions of the Commission of the European Communities fixing the applicant’s conditions of employment as a member of the contract staff for auxiliary tasks, in that they defer medical cover, as provided for in the first paragraph of Article 100 of the Conditions of Employment of other servants of the European Communities (‘the Conditions of Employment’), and in that they limit the duration of her contract to 15 September 2009;
– in Case F‑60/08, of the decision of the Commission of 7 September 2007 to defer the applicant’s medical cover, as provided for in Article 100 of the Conditions of Employment.
Legal context
1. The duration of the contract
2. Under Article 3a(1) of the Conditions of Employment:
‘… “contract staff” means staff not assigned to a post included in the list of posts appended to the section of the budget relating to the institution concerned and engaged for the performance of full-time or part-time duties:
(a) in an institution to carry out manual or administrative support service tasks,
…’
3. According to Article 3b of the Conditions of Employment:
‘… “contract staff for auxiliary tasks” means staff engaged in an institution …:
(a) to perform full-time or part-time duties [other] than those referred to in Article 3a(1)(a), without being assigned to a post included in the list of posts appended to the section of the budget relating to the institution concerned,
(b) to replace, after the possibilities of temporary posting of officials within the institution have been examined, certain persons who are unable for the time being to perform their duties, namely:
(i) officials or temporary staff in the function group AST;
(ii) exceptionally, officials or temporary staff in the function group AD occupying a highly specialised post, except Heads of Unit, Directors, Directors-General and equivalent functions.
The use of contract staff for auxiliary tasks is excluded where Article 3a applies.’
4. Article 88 of the Conditions of Employment further provides:
‘In the case of contract staff referred to in Article 3b:
(a) contracts shall be concluded for a fixed period; they shall be renewable;
(b) the actual period of employment within an institution, including any period under renewal, shall not exceed three years.
Periods covered by a contract as a member of the contract staff referred to in Article 3a shall not be counted for the purposes of the conclusion or renewal of contracts under this Article.’
5. 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) implemented the framework agreement on fixed-term work concluded on 18 March 1999 between the general cross-industry organisations (‘the framework agreement’). According to clause 5 of the framework agreement:
‘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.’
2. Deferral of medical cover
6. Article 100 of the Conditions of Employment provides:
‘Where the medical examination made before a member of the contract staff is engaged shows that he is suffering from sickness or invalidity, the authority [authorised to conclude contracts] may, in so far as risks arising from such sickness or invalidity are concerned, decide to grant him guaranteed benefits in respect of invalidity or death only after a period of five years from the date of his entering the service of the institution.
The contract staff member may appeal against this decision to the Invalidity Committee provided for in paragraph 1(b) of Article 9 of the Staff Regulations [of Officials of the European Communities].’
Background to the dispute
7. The applicant was employed in the service of the Commission from 1 May 2001 to 15 September 2003 as a member of the local staff. On 16 September 2003, she was appointed a member of the auxiliary staff under a fixed-term contract which was renewed on 10 occasions until 15 September 2006.
8. With a view to a new appointment as a member of the contract staff, the applicant underwent a medical examination. On the basis of that examination, the medical service expressed a reservation on 12 September 2006.
9. On 14 September 2006, the applicant signed a contract as a member of the contract staff for auxiliary tasks within the meaning of Article 3b of the Conditions of Employment for a period ending on 15 September 2009.
10. In a letter of 14 September 2006, the Commission drew ‘[the applicant’s] attention to the fact that the offer [of employment] [was] subject to the deferral of medical cover referred to in Article 100 of the [Conditions of Employment]’.
11. The applicant lodged a complaint with the authority authorised to conclude contracts (‘the contracting authority’) by letter of 11 December 2006. In that letter, she disputed, in the first place, that her contract of 14 September 2006 could be a fixed-term contract. She took issue, in the second place, with the application to her of the first paragraph of Article 100 of the Conditions of Employment. In consequence, she requested the contracting authority to ‘find that her contract [had been] concluded for an indeterminate period and that it [had not been] appropriate to defer medical cover as provided for in Article [100 of the Conditions of Employment]’. In the same letter, and ‘in so far as necessary, she also appealed against the decision [to defer medical cover] to the Invalidity Committee provided for in Article 9(1)(b) of the Staff Regulations [of Officials of the European Communities], in accordance with [the second paragraph of] Article 100 of the Conditions of Employment’. On 14 December 2006, the applicant supplemented her complaint with further particulars (‘the complaint of 11 and 14 December 2006’).
12. On 30 March 2007, the contracting authority considered that it was unable to accept the applicant’s arguments against the duration of her contract and against the decision to defer medical cover. Consequently, the contracting authority decided not to uphold the complaint. Taking note of the fact that when lodging her complaint the applicant had also appealed to the Invalidity Committee against that decision, the contracting authority also forwarded that appeal to the medical service.
13. On 12 July 2007, the applicant lodged an action, which was registered as Case F‑69/07, before the Tribunal against the decisions to recruit her only on the basis of a fixed-term contract and to defer medical cover.
14. In the light of the findings of the Invalidity Committee, the contracting authority decided on 7 September 2007 to grant the applicant ‘guaranteed benefits in respect of invalidity or death only after a period of five years from the date of her entering the service of the Commission as a member of the contract staff, in so far as risks arising from the sickness or invalidity in respect of which medical cover was deferred following the medical fitness examination [were] concerned’.
15. The applicant lodged a complaint against that decision on 23 November 2007. The contracting authority rejected her complaint on 14 March 2008.
16. On 25 June 2008 (the original having been lodged on 1 July 2008), the applicant lodged an action, which was registered as Case F‑60/08, against the decision of 7 September 2007.
Forms of order sought by the parties and procedure
17. The applicant claims, in Case F‑69/07, that the Tribunal should:
– annul the Commission’s decisions fixing the conditions of her employment as a member of the contract staff for auxiliary tasks, first, in that they defer medical cover as provided for in Article 100 of the Conditions of Employment and, second, in that they limit the duration of her contract to the period from 16 September 2006 to 15 September 2009;
– order the Commission to pay the costs of the proceedings.
18. The Commission contends, in the same case, that the Tribunal should:
– dismiss the action as inadmissible in part and, in any event, as unfounded;
– make an appropriate order as to costs.
19. By letter received at the Registry of the Tribunal on 21 September 2007 by fax (the original having been lodged on 24 September 2007), the Council of the European Union sought leave to intervene in Case F‑69/07 in support of the form of order sought by the Commission.
20. By order of the President of the Second Chamber of the Tribunal of 22 October 2007, the Council was granted leave to intervene in Case F‑69/07 in support of the form of order sought by the Commission.
21. By its statement in intervention, which was filed at the Registry of the Tribunal on 29 November 2007 by fax (the original having been lodged on 3 December 2007), the Council submitted that the Tribunal should reject the plea of illegality raised in the application against Articles 88 and 100 of the Conditions of Employment as manifestly inadmissible and, in any event, as unfounded.
22. The applicant’s observations on the statement in intervention were filed at the Registry of the Tribunal on 15 January 2008 (the original having been lodged on 22 January 2008). The applicant submits that the Tribunal should make the form of order sought, as set out in her application, and order the Council to bear its own costs. The Commission did not lodge observations on the statement in intervention.
23. The applicant claims, in Case F‑60/08, that the Tribunal should:
– annul the Commission’s decision of 7 September 2007 fixing her conditions of employment as a member of the contract staff for auxiliary tasks, in that it defers medical cover as provided for in Article 100 of the Conditions of Employment;
– order the Commission to pay the costs of the proceedings.
24. The Commission contends, in Case F‑60/08, that the Tribunal should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
25. By letter received at the Registry of the Tribunal on 29 July 2008 by fax (the original having been lodged on 31 July 2008), the Council sought leave to intervene in Case F‑60/08 in support of the form of order sought by the Commission.
26. By order of the President of the Second Chamber of the Tribunal of 4 September 2008, the Council was granted leave to intervene in Case F‑60/08 in support of the form of order sought by the Commission.
27. By letter received at the Registry of the Tribunal on 25 June 2008 by fax (the original having been lodged on 1 July 2008), the applicant requested that Cases F‑69/07 and F‑60/08 be joined for the purposes of the written procedure, the oral procedure and the final decision. By letter of 14 July 2008, the Tribunal invited the Commission to comment on the joinder of the cases. The Commission raised no objection in that regard. By order of the President of the Second Chamber of the Tribunal of 4 September 2008, Cases F‑69/07 and F‑60/08 were joined for the purposes of the oral procedure and the final decision.
28. By its statement in intervention, which was filed at the Registry of the Tribunal on 14 November 2008 by fax (the original having been lodged on 19 November 2008), the Council submitted that the Tribunal should reject the plea of illegality raised in the application against Article 100 of the Conditions of Employment as manifestly inadmissible and, in any event, as unfounded.
29. The applicant and the Commission were, inter alia, invited to respond to that statement at the hearing and to submit their observations, on that occasion, on the consequence of the possible admissibility of the action in Case F‑69/07 on the admissibility of the action in Case F‑60/08.
30. At the hearing on 10 February 2009, the Tribunal requested the parties to examine the possibility of reaching an amicable settlement of the part of the dispute relating to the deferral of medical cover. It therefore stayed the closure of the oral procedure and the commencement of its deliberations. By letter lodged at the Registry of the Tribunal on 25 February 2009, the Commission stated that it was unable to comply with that request. On 11 March 2009, the President of the Second Chamber of the Tribunal closed the oral procedure and opened the deliberation on the cases.
Law
1. Admissibility of the action in Case F‑69/07
Arguments of the parties
31. The Commission claims, in the first place, that the applicant is out of time in so far as she challenges the legality of the duration of the contracts under which she previously worked as a member of the local staff or the auxiliary staff.
32. The Commission observes, in the second place, that the contracting authority stated in its decision of 30 March 2007 that it was forwarding to the medical service the applicant’s appeal against the deferral of medical cover which had been stipulated upon conclusion of her contract as a member of the contract staff for auxiliary tasks, so that the medical service could set up an Invalidity Committee to adjudicate on the matter. The Commission infers that it gave satisfaction to the applicant and that the action is inadmissible as regards the deferral of medical cover, if the applicant’s letter of 11 December 2006 is to be interpreted as a request based on Article 90(1) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) to refer her case to the Invalidity Committee.
33. The Commission claims, in the third place, that the action is premature if the applicant’s letter of 11 December 2006 is to be interpreted as a complaint against the decision to defer medical cover. The Commission takes the view that, on that hypothesis, the complaint was lodged before the exhaustion of the appeal procedure before the Invalidity Committee provided for in the Conditions of Employment. The Council shares that point of view.
34. The applicant contends, in her observations on the statement in intervention, that the contracting authority’s decision of 14 September 2006 to defer medical cover upon the signature of her contract as a member of the contract staff for auxiliary tasks is a final decision. Furthermore, the contracting authority’s purpose in referring the matter to the Invalidity Committee was not to have that committee examine, from a legal point of view, whether Article 100 of the Conditions of Employment could validly be applied to the applicant. The Invalidity Committee may deal only with medical issues. In addition, the contracting authority’s decision of 7 September 2007 maintaining the deferral of medical cover in the light of the findings of the Invalidity Committee is purely confirmatory.
Findings of the Tribunal
35. It is clear from the subject-matter and the form of order sought in Case F‑69/07 that the applicant does not criticise the duration of the contracts under which she previously worked as a member of the local staff or the auxiliary staff. Nor does she seek annulment of an alleged refusal to refer the matter to the Invalidity Committee. It follows that the Commission’s first two pleas of inadmissibility must be rejected.
36. It remains to be determined whether the head of claim in Case F‑69/07 whereby the applicant challenges the deferral of medical cover is premature because the complaint relating to that issue was submitted before the appeal procedure before the Invalidity Committee had been exhausted.
37. It must be borne in mind that, like any medical committee (see Case 76/84 Rienzi
v Commission
[1987] ECR 315, paragraphs 9 to 12, and Case T‑4/96 S
v Court of Justice
[1997] ECR II‑1125, paragraphs 41 and 59), the Invalidity Committee provided for in Article 9(1)(b) of the Staff Regulations is competent solely to issue an opinion on all the relevant elements covered by an assessment of a medical nature, to the exclusion of any assessment of a legal nature. Furthermore, the contracting authority is bound, from a medical point of view, by the findings of that committee (order of the Court of Justice in Case 25/86 Suss
v Commission
[1986] ECR 3929, paragraph 6, and judgment in Case C‑18/91 P V.
v Parliament
[1992] ECR I‑3997, paragraph 26).
38. The appeal to the Invalidity Committee provided for in the second paragraph of Article 100 of the Conditions of Employment can therefore have as its subject-matter only a dispute of a medical nature and a member of staff cannot be required to exhaust that procedure if his challenge is not of a medical nature.
39. However, it follows from her letter of 11 December 2006, cited at paragraph 11 above, that the applicant submitted to the contracting authority a complaint supported by legal considerations against the fixed duration of her contract and against the deferral of medical cover provided for in that contract and that she also ‘appeal[ed] to’ the Invalidity Committee, although only ‘in so far as necessary’.
40. In its decision of 30 March 2007, the contracting authority rejected the head of claim directed against the duration of the applicant’s contract. The contracting authority also took note of the applicant’s appeal to the Invalidity Committee and stated that it had done what was necessary to refer the matter to that committee. However, the contracting authority also ruled on the legal validity of the deferral of medical cover in that decision. Following legal reasoning which was final in nature, the contracting authority concluded that ‘[the applicant’s] arguments [could] not be upheld’.
41. Furthermore, the contracting authority’s decision of 7 September 2007, which draws the inferences from the findings of the Invalidity Committee, is based on Article 100 of the Conditions of Employment and not on Article 90 of the Staff Regulations, to which the Commission ought to have referred if it had considered that that decision followed on from the complaint of 11 and 14 December 2006.
42. It follows from the foregoing that the applicant pursued two distinct legal remedies having different objects and that the Commission treated them as such.
43. Consequently, the complaint of 11 and 14 December 2006 and the subsequent action before the Tribunal cannot be deemed premature on the ground that that complaint was submitted before the procedure provided for in Article 100 of the Conditions of Employment had been exhausted.
44. The Tribunal none the less considers it appropriate to examine of its own motion the consequences of the admissibility of the action in Case F‑69/07 on the admissibility of the action in Case F‑60/08.
2. Admissibility of the action in Case F‑60/08
45. It must be borne in mind that an act of the contracting authority adversely affecting a member of staff may form the subject-matter of only a single complaint, brought against the contracting authority by the member of staff concerned. Where two complaints have the same subject-matter, only one of them, namely the first to have been submitted, constitutes a complaint for the purposes of Article 90 of the Staff Regulations, while the other, introduced subsequently, is to be regarded as purely reiterative of the complaint and cannot have the effect of prolonging the procedure (see, to that effect, orders in Case T‑14/91 Weyrich
v Commission
[1991] ECR II-235, paragraph 41, and Case T‑67/91 Torre
v Commission
[1992] ECR II‑261, paragraph 32, and judgment in Case T‑66/05 Sack
v Commission
[2007] ECR-SC I-A-2-0000 and II‑A-2-0000, paragraphs 37 and 41).
46. In fact, in the purported complaint of 22 November 2007 against the contracting authority’s decision of 7 September 2007, which imposed the deferral of medical cover on the applicant again in the light of the findings of the Invalidity Committee, the applicant reiterated the legal arguments which she had formulated in her complaint of 11 and 14 December 2006.
47. It follows that the purported complaint of 22 November 2007 had the same subject-matter as the complaint of 11 and 14 December 2006 and that it was directed against a decision which, without reference to the legal issues settled on 30 March 2007, merely drew the inferences from the medical findings of the Invalidity Committee, which, according to the contracting authority, were in themselves of such a kind as to justify the deferral of the applicant’s medical cover.
48. It must therefore be held, first, that the purported complaint of 22 November 2007 was merely a reiterative memorandum and not a complaint for the purposes of Article 90(2) of the Staff Regulations and, second, that the decision rejecting that purported complaint is purely confirmatory and therefore not actionable.
49. That finding is not invalidated by the fact that the contracting authority rejected the purported second complaint on 14 March 2008 on the basis of more detailed arguments than those set out, with respect to the deferral of medical cover, in the decision of 30 March 2007 rejecting the complaint of 11 and 14 December 2006. Although the contracting authority’s decision of 14 March 2008 was adopted after the findings of the Invalidity Committee, which re-examined the applicant’s state of health, the reasoning which that decision contains in relation to the deferral of the applicant’s medical cover does not amount to a real examination of the validity of the deferral of cover. The reasoning in that decision merely expands on the grounds set out in the decision of 30 March 2007 rejecting the first complaint. The contracting authority states in its decision of 14 March 2008 that it adopts in that decision the arguments set out in its defence in Case F‑69/07, which was brought following the rejection of that first complaint. A decision which contains only further particulars merely reveals the grounds for confirming the earlier decision and does not constitute an act adversely affecting the person concerned (see, to that effect, Case T‑375/02 Cavallaro
v Commission
[2005] ECR‑SC I‑A‑151 and II‑673, paragraph 65).
50. Nor can the above conclusion be called in question by the case-law establishing that an action for annulment brought against a confirmatory decision is inadmissible only if the confirmed decision has become final vis-à-vis the person concerned without any action having been brought within the prescribed period, while, in the opposite case, the applicant is entitled to contest either the confirmed decision or the confirmatory decision, or both. That solution cannot be applied where, as in the present case, the confirmed decision and the confirmatory decision are contested in two separate actions and the applicant can defend his point of view and put his arguments in the first action (order in Case T‑354/00 Métropole télévision (M6)
v Commission
[2001] ECR II‑3177, paragraph 35).
51. The action in Case F‑60/08 must therefore be dismissed as inadmissible.
3. Merits of Case F‑69/07
52. The applicant disputes, first, the limitation of the duration of her contract to the period from 16 September 2006 to 15 December 2009 and, second, the deferral of medical cover provided for in Article 100 of the Conditions of Employment.
The action in so far as it is directed against the duration of the contract
Arguments of the parties
53. In support of her action, in so far as it is directed against the duration of her contract, the applicant puts forward, in substance, two pleas in law. She maintains, in the first, and principal, plea, that the decision limiting the duration of her contract disregards her right to stability of employment and that the rejection of her complaint is insufficiently reasoned. In so far as necessary, she raises, in the second plea, a plea of illegality against Article 88 of the Conditions of Employment.
54. In the first place, the applicant maintains, by reference to Case F‑1/05 Landgren
v ETF
[2006] ECR-SC I‑A‑1‑123 and II‑A‑1‑459, the subject of an appeal to the Court of First Instance (Case T-404/06 P), that, owing to the evolution of the protection of workers, contracts of indeterminate duration are the general form of employment relationships. Fixed-term contracts, on the other hand, are capable of meeting the needs of employers and workers only in certain circumstances.
55. The applicant infers from the fact that she has been in the service of the Commission since 1 May 2001, under 15 successive fixed-term contracts, that the Commission has abused that form of contract and has disregarded the right to stability of employment.
56. The applicant further submits that she based her complaint of 11 and 14 December 2006 on the right to stability of employment and also on the provisions of the European Social Charter, signed in Turin on 18 October 1961, and on the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1; ‘the Charter of Fundamental Rights’). She maintains that the Commission did not respond to her argument when rejecting her complaint. The Commission provided no explanation of the circumstances that justified the succession of 15 fixed-term contracts and did not state how that succession of contracts met the needs of both parties.
57. In the second place, the applicant asserts that the decision to fix the term of her employment at 15 September 2009 is based on Article 88 of the Conditions of Employment and that that article is itself unlawful in that it ‘disregards the principles of law relating to the protection of workers’.
58. In her observations on the Council’s statement in intervention, the applicant states that a general principle of stability of employment relationships follows from Directive 1999/70. That directive, and the framework agreement annexed thereto, are intended to apply to contracts of employment concluded with an entity governed by public international law. Furthermore, a Community national does not lose his status as a worker because he occupies a post in such an organisation.
59. The applicant claims that the Conditions of Employment and Directive 1999/70 are equivalent legal rules, neither of which can take precedence over the other. She further submits, however, that where such rules are capable of producing opposite effects, it is the one that satisfies the requirement to state reasons laid down in Article 253 EC that must be applied.
60. The Conditions of Employment do not explain why the engagement of the staff referred to in Article 3b is limited to three years. Nor do they justify the difference in treatment between those staff and staff recruited on the basis of Article 3a, who may have their contracts renewed for an indefinite term. Nor, again, do the Conditions of Employment justify the difference in treatment given to members of the contract staff who, like the applicant, are recruited on the basis of Article 3b after having been employed by the institution in question under a succession of fixed-term contracts to carry out what are said to be permanent tasks. Furthermore, neither the Conditions of Employment nor the decision limiting the duration of the applicant’s contract justifies the difference in treatment between the abovementioned staff and workers who carry out such tasks in a Member State. The applicant goes on to observe that the Conditions of Employment do not state the reasons why it is possible to derogate from clause 5 of the framework agreement and to recruit for a fixed term members of the contract staff for auxili ary tasks to carry out permanent tasks connected with the normal activity of the institution.
61. The Council disputes the admissibility of the plea of illegality against Article 88 of the Conditions of Employment, in that the application does not devote any reasoning to that plea. In particular, it submits that the plea of illegality is based on general principles of law without providing any further information in that regard.
62. In any event, the Commission and the Council contend that there is no general principle of stability of employment that applies to staff subject to the Conditions of Employment. Only officials benefit from that principle. The case-law recognises, on the contrary, that in certain circumstances fixed-term contracts are capable of meeting the needs of both employers and workers. Thus, recourse to officials governed by the Staff Regulations or to staff employed under various categories of contracts corresponds to legitimate needs of the Community administration and to the nature of the tasks, whether permanent or temporary, which it is required to carry out.
63. The Council emphasises, in that regard, that Article 3b of the Conditions of Employment states that contract staff for auxiliary tasks may be engaged only to perform duties other than the manual or administrative support service tasks referred to in Article 3a or to replace on a temporary basis certain persons who are unable for the time being to perform their duties.
64. Last, the Council observes that in limiting the duration of the employment of contract staff for auxiliary tasks to three years, Article 88 of the Conditions of Employment prevents the improper use of successive fixed-term contracts.
65. The Commission and the Council conclude that the plea of illegality raised against Article 88 of the Conditions of Employment should be rejected, since in the present case the principle of stability of employment relied on in opposition to that article is not applicable.
66. The Commission further asserts that the limitation of the applicant’s contract to three years is consistent with Article 88 of the Conditions of Employment.
Findings of the Tribunal
67. Although the plea of illegality raised against Article 88 of the Conditions of Employment is raised only in the alternative, it may appropriately be examined first.
– The plea of illegality directed against Article 88 of the Conditions of Employment
68. The applicant claims, in her application, that Article 88 of the Conditions of Employment disregards the principles of law concerning the protection of workers. She also maintains, in her observations on the Council’s statement in intervention, that that article does not state the reasons on which it is based, as required by Article 253 EC.
69. In the first place, it is necessary, on the one hand, to reject the Council’s argument that the plea of illegality directed against Article 88 of the Conditions of Employment, in that that article disregards ‘the principles of law concerning the protection of workers’, is inadmissible on the ground that the plea is not developed in the application.
70. By maintaining that Article 88 of the Conditions of Employment is illegal on that ground, the applicant refers to an alleged right to stability of employment, and infers directly from the breach of that right that the decision limiting the duration of her contract is illegal. She thus relies on the same argument in support of her plea of illegality. The Commission and the Council, moreover, interpreted it in that way and responded to it.
71. On the other hand, the plea of illegality directed against Article 88 of the Conditions of Employment, in that that article does not state the reasons on which it is based, is admissible, even though it was raised in the course of the proceedings by the applicant, in so far as it is based on a complaint raising a matter of public policy, which may be raised at any stage of the proceedings and in any event may be examined by the Community judicature of its own motion.
72. The Tribunal must therefore determine, in the second place, whether Article 88 of the Conditions of Employment constitutes a breach of a principle of stability of employment.
73. In the present case, the applicant does not claim that Article 88 of the Conditions of Employment is contrary to Directive 1999/70 and the framework agreement as such. She maintains that in adopting that directive the Council made the provisions of the framework agreement mandatory in all Member States and that those provisions constitute general principles of law which are binding on the institutions and the most important of which include the right to stability of employment.
74. However, although, according to point 10 of the general considerations of the framework agreement, that agreement contains ‘general principles, minimum requirements and provisions’, it follows from recital 14 in the preamble to Directive 1999/70, and likewise from the third paragraph of the preamble to the framework agreement, point 9 of the general considerations and clauses 1 and 4 that the principles in question are the principle of non-discrimination, including the principle of equal treatment for men and women, and the principle of the prohibition of abuse of right. As regards clause 5(1) of the framework agreement, on which the applicant relies, it sets out the minimum requirements designed to place limits on recourse to successive fixed-term employment contracts or relationships, and thus to avoid the improper use of such contracts, and also to prevent the status of the beneficiaries of such contracts from being insecure (see, to that effect, Case C‑212/04 Adeneler and Others
[2006] ECR I‑6057, paragraph 63; Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others
[2009] ECR I-0000, paragraph 73; and order of 24 April 2009 in Case C‑519/08 Koukou
[2009] ECR I-0000, paragraph 53). Such provisions affording minimum protection do indeed constitute rules of Community social law of particular importance (see, to that effect, Case C‑307/05 Del Cerro Alonso
[2007] ECR I‑7109, paragraph 27), but without establishing stability of employment as a general principle against which the legality of an act of an institution must be measured.
75. Although stability of employment is seen as a major element in the protection of workers (see Case C‑144/04 Mangold
[2005] ECR I‑9981, paragraph 64; Case C‑268/06 Impact
[2008] ECR I-2483, paragraph 87; and Angelidaki and Others, paragraph 74 above, paragraph 105), it does not follow from the framework agreement that it has been established as a binding rule of law. Furthermore, recitals 6 and 7 in the preamble to Directive 1999/70, and likewise the first paragraph of the preamble to, and point 5 of the general considerations of, the framework agreement, emphasise the need to achieve a better balance between ‘flexibility in working time and security for workers’. It must be further observed that, as the Court of Justice has already held, the framework agreement does not lay down a general obligation to provide that, after fixed-term contracts have been renewed a certain number of times or a certain period of work has been completed, those contracts are to be converted into an indefinite contract (see, to that effect, Adeneler and Others, paragraph 74 above, paragraph 91; Angelidaki and Others, paragraph 74 above, paragraph 183; Case C‑53/04 Marrosu and Sardino
[2006] ECR I‑7213, paragraph 47; and order in Koukou, paragraph 74 above, paragraph 85).
76. While stability of employment cannot therefore be considered to be a general principle, it does, on the other hand, constitute an aim pursued by the parties signatory to the framework agreement, clause 1(b) of which has as its purpose to ‘establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’ (Case F‑65/07 Aayhan and Others
v Parliament
[2009] ECR-SC I-A-1-0000 and II-A-1-0000, paragraphs 114 and 115).
77. In any event, it follows from Joined Cases F‑134/07 and F‑8/08 Adjemian and Others
v Commission [2009] ECR-SC I-A-1-0000 and II-A-1-0000, paragraphs 119 to 136, that, in view of the characteristics inherent in the activities referred to by Article 3b of the Conditions of Employment, Article 88 of those Conditions of Employment does not undermine the aims of the framework agreement and the minimum requirements of clause 5 of that agreement. Clause 5(1) of the framework agreement provides only that Member States are under an obligation to introduce into their legal orders one or more of the measures set out in points (a) to (c), which include, in point (a), ‘objective reasons justifying the renewal of such [fixed-term employment] contracts or relationships’. Each post as a member of the contract staff for auxiliary tasks must, pursuant to Article 3b of the Conditions of Employment, specifically meet temporary or intermittent needs. Furthermore, in an administration with a large workforce like that of the Commission, it is inevitable that such needs will recur, inter alia as a result of the unavailability of officials, increases in workload in particular circumstances or the need for each directorate-general to have recourse occasionally to persons with specific qualifications or knowledge; and all those circumstances constitute objective reasons justifying both the fixed-term nature of the contracts of members of the auxiliary staff and the renewal of such contracts as and when the needs in question arise.
78. It follows from the foregoing that no general principle of stability of employment can form the basis of a plea of illegality directed against Article 88 of the Conditions of Employment, which, moreover, gives no indication that it might undermine the purposes and the minimum requirements of the framework agreement annexed to Directive 1999/70.
79. It remains to examine, in the third place, the argument that Article 88 of the Conditions of Employment does not state the reasons on which it is based, as required by Article 253 EC.
80. In that regard, it is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the nature of the act in question. Where, as in the present case, the act in question is of general scope, the reasoning may merely indicate, first, the overall situation which led to its adoption and, second, the general objectives which it proposes to achieve. Furthermore, the Court of Justice has repeatedly held that, if an act of general scope discloses the essential part of the objective pursued by the institution, it would be excessive to require specific reasons for the various technical choices made (Case F‑43/05 Chassagne
v Commission
[2007] ECR-SC I-A-1-0000 and II-A-1-0000, paragraphs 105 and 106 and the case-law cited).
81. In this connection, the Tribunal has already held that recital 36 in the preamble to Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations and the Conditions of Employment (OJ 2004 L 124, p. 4) sufficiently justifies the objective pursued by the creation of the new categories of contract staff referred to in Articles 3a and 3b of the Conditions of Employment. The Tribunal has also taken the view that the Council could not be criticised for not having justified its choices by reference to clause 5 of the framework agreement, since it follows from the third paragraph of Article 249 EC that directives are addressed solely to Member States ( Adjemian and Others
v Commission, paragraph 77 above, paragraphs 139 to 142). Last, there was even less need to give specific reasons, because it follows from paragraph 77 above that Article 88 of the Conditions of Employment does not undermine the aims and the minimum requirements of the framework agreement.
82. In those circumstances, the Council is not to be criticised for not having justified its alleged decision to derogate from clause 5 of the framework agreement. It would also be excessive to censure the Council for not having explicitly stated specific reasons for its technical choices with respect to the various categories of staff and national workers identified by the applicant and listed at paragraph 60 above.
83. It follows from all the foregoing considerations that the plea of illegality raised by the applicant against Article 88 of the Conditions of Employment is to be rejected.
– The complaints raised directly against the decisions limiting the duration of the applicant’s contract
84. The applicant claims, in the first place, that the Commission has employed her since 1 May 2001 under 15 successive fixed-term contracts to carry out permanent tasks linked with the normal activity of the institution. She therefore takes issue with the Commission for not having engaged her for an indefinite period by the contract as a member of the contract staff for auxiliary tasks of 14 September 2006.
85. It must be observed, however, that the applicant has put forward, in her written pleadings, no specific and relevant factors in support of her assertion that she actually performs permanent tasks linked with the normal activity of the institution not falling within the situation referred to in Article 3b(b) of the Conditions of Employment. The Tribunal recalls, in that regard, that it is not required to seek and identify in the annexes to the application the material capable of filling such a lacuna, as those annexes serve purely to provide evidence and assistance (see Case T‑333/99 X
v ECB
[2001] ECR II‑3021, paragraph 190, and Case T‑345/05 Mote
v Parliament
[2008] ECR-SC I-A-2-0000 and II-A-2-0000, paragraph 75).
86. It must also be borne in mind that it follows from paragraphs 73 to 76 above that clause 5 of the framework agreement does not contain a general principle of law and that stability of employment is not a general principle of law either. Nor has the applicant established that the series of contracts does not meet specific needs of the Commission in regard to the considerations set out at paragraph 77 above and had the purpose of covering permanent and lasting needs of the institution.
87. It follows that the first complaint raised by the applicant against the contract as a member of the contract staff for auxiliary tasks of 14 September 2006, in so far as it relates to the duration of that contract, must be rejected.
88. The applicant claims, in the second place, that the contracting authority did not respond, in its decision of 30 March 2007, to the arguments which she had based, in her complaint of 11 and 14 December 2006, on the Charter of Fundamental Rights, the European Social Charter and a right to stability of employment. Nor, in the applicant’s submission, did the contracting authority explain how a succession of 15 fixed-term contracts met the needs of the contracting parties or what justified the difference in treatment of which she was a victim by comparison with workers employed in the public or private sector of a Member State.
89. It must be observed, however, that in her complaint of 11 December 2006 the applicant referred only to Articles 34 and 35 of the Charter of Fundamental Rights and Articles 12 and 13 of the European Social Charter in a description of the legal framework, without inferring any argument from them and without including those provisions in the list of texts and principles relied on ‘in support of her action’.
90. In fact, although the reasoning is not required to be exhaustive, it must allow the Community judicature to exercise its review of the legality of the contested decision and provide the person concerned with sufficient information to know whether the decision in question is well founded or whether it is vitiated by a defect which enables its legality to be challenged (Case T‑372/00 Campolargo
v Commission
[2002] ECR-SC I‑A‑49 and II‑223, paragraph 49, and Case T-406/04 Bonnet
v Court of Justice
[2006] ECR-SC I‑A‑2‑213 and II‑A‑2‑1097, paragraph 67). Thus, the institutions cannot be required to discuss all the points of fact or of law relied upon, particularly if relied upon superficially, during the administrative procedure. Consequently, the contracting authority did not fail to fulfil its duty to state its reasons for rejecting the head of the complaint relating to the fixed-term nature of the contract as a member of the contract staff offered to the applicant by not stating the reasons for its decision by reference to the abovementioned articles of the Charter of Fundamental Rights and the European Social Charter. The contracting authority was entitled to consider, moreover, that those provisions were cited only in relation to the second head of the complaint, directed at the deferral of the applicant’s medical cover.
91. Nor did the applicant expressly rely in her complaint of 11 and 14 December 2006 on a difference in treatment between herself and workers in the public or private sector of a Member State.
92. It also follows from the argument in the more detailed complaint of 14 December 2006 that that complaint supplemented the applicant’s initial arguments with respect to the deferral of medical cover and not the head of the complaint directed against the duration of the contract.
93. Last, the contracting authority responded to the applicant’s arguments based on a right to stability of employment by asserting, in particular, that while it is common ground that indefinite contracts offer greater stability, it does not follow that fixed-term contracts are unlawful. The contracting authority also referred to its discretion in that regard and emphasised that the fixed-term contracts of members of the auxiliary staff did in fact tend to meet temporary, urgent or strictly defined needs, thus responding to the head of complaint which the applicant derived from the successive nature of her contracts of employment.
94. It follows that the second complaint which the applicant has invoked against the contract as a member of the contract staff for auxiliary tasks of 14 September 2006, in so far as it relates to the duration of that contract, is unfounded.
95. In the light of all the foregoing, the action must be dismissed in so far as it is directed against the duration of the contract.
The action in so far as it is directed against the deferral of medical cover
Arguments of the parties
– Arguments of the applicant
96. In support of her action, in so far as it is directed against the deferral of medical cover, the applicant raises two pleas. The first, and principal, plea, alleges breach of Article 100 of the Conditions of Employment; the second, alternative, plea is a plea of illegality against that article.
97. As for the first plea, the applicant observes, first of all, that under Article 100 of the Conditions of Employment, the contracting authority may decide to exclude a member of the contract staff from the guaranteed benefits in respect of invalidity or death, in so far as risks arising from sickness revealed during the medical examination carried out before he is engaged are concerned, for a period of five years from the date of his entering the service of the institution.
98. The applicant maintains that the entry into service referred to in Article 100 of the Conditions of Employment is independent of the nature of the relationship, whether governed by contract or by the Staff Regulations, between the institution and the member of staff. Furthermore, a succession of fixed-term contracts constitutes, in reality, a single employment relationship. Consequently, in the present case the applicant’s medical cover ought to have been deferred only for the period between 1 May 2001, the date on which she first commenced her duties, and 30 April 2006.
99. The applicant claims, next, that the deferral of medical cover had the effect of depriving her of an adequate level of social protection, in breach of the general principles underlying, first, Articles 12 and 13 of the European Social Charter, concerning the right to social security and the right to social and medical assistance, and also, second, Articles 34 and 35 of the Charter of Fundamental Rights, concerning the right of access to social security benefits, notably in the case of illness, and healthcare, respectively.
100. Last, reasserting that the concept of entry into service used in Article 100 of the Conditions of Employment is independent of affiliation to a social security scheme, whether national or Community, the applicant claims that the decision to defer her medical cover reduced the level of protection against the risks of death and invalidity which she enjoyed under the Hungarian social security legislation, and then the Belgian legislation, when she worked for the Commission as a member of the local staff and then as a member of the auxiliary staff. She observes, in that regard, that she has been in the Commission’s service without interruption since 1 May 2001 and submits that the Community institutions, like any other employer, cannot subject their staff to a precarious social security scheme by constantly re-examining the medical state of the members of staff concerned.
101. As for the second plea, the applicant observes that, if the decision to defer her medical cover should be considered to be consistent with Article 100 of the Conditions of Employment, the Tribunal should declare that that provision is in breach of ‘the general principles of law on the protection of workers’.
102. In her observations on the Council’s statement in intervention, the applicant states that the application of Article 100 of the Conditions of Employment, in the circumstances of the present case, is based on a legal fiction, since a succession of fixed-term contracts is considered to be so many employment relationships, each independent of the others. However, the protection of workers requires that the reality of an uninterrupted employment relationship should prevail, in order to prevent the Community institutions from being able to subject their staff to a precarious social security scheme characterised by the constant re-examination of their medical situation.
– Arguments of the Commission and of the Council
103. As regards the first plea, the Commission contends that, as Article 100 of the Conditions of Employment appears under Title IV ‘Contract staff’, Chapter 8 ‘Social security benefits’, Section B ‘Insurance against risk of invalidity and death’, it can be applied to members of the contract staff only as from their engagement in that capacity. Furthermore, Article 100 of the Conditions of Employment refers to a medical examination preceding recruitment in that capacity, so that the five-year period of exclusion from the protection provided for in that article in relation to invalidity and death can only be post recruitment. It would make no sense to make that period retroactive to a time when the rights in question did not exist. The Commission states, in that regard, that the applicant first of all worked as a member of the local staff, affiliated to the social security scheme of her country, then as a member of the auxiliary staff covered by the Belgian social security scheme. She became affiliated to the Community social security scheme only when she became a member of the contract staff.
104. The Commission observes, moreover, that Article 100 of the Conditions of Employment is analogous to Article 1 of Annex VII to the Staff Regulations and Article 32 of the Conditions of Employment, which are applicable to officials and to members of the temporary staff, respectively. The Commission emphasises, on the other hand, that the provisions relating to local staff and auxiliary staff contain no comparable article. That difference is explained by the fact that the Community can defer medical cover only in the case of staff coming within the scope of the Community social security scheme.
105. As for the second plea, the Commission and the Council contend that the plea of illegality raised against Article 100 of the Conditions of Employment is inadmissible in so far as the application contains no argument in that regard. Even if the plea of illegality were to be understood as also relying on an alleged breach of the right of access to Community social security benefits, of Articles 12 and 13 of the European Social Charter, and also of Articles 34 and 35 of the Charter of Fundamental Rights, the plea should none the less be rejected as inadmissible on account of the purely abstract nature of the argument put forward, since it lacks sufficiently clear and precise information that would enable the other parties to respond to it and the Tribunal to exercise its review, in breach of Article 44 of the Rules of Procedure of the Court of First Instance of the European Communities.
106. The Commission further submits that the Charter of Fundamental Rights has no binding legal value and that the European Social Charter is not applicable to the Community because the Community is not among its signatories or those who have acceded to it.
107. In any event, the Commission claims that the right to a high level of health protection referred to in those two measures is observed. The applicant is covered by sickness insurance like any other official or member of staff and she also has cover in the event of sickness or death resulting from sickness other than that in respect of which medical cover was deferred.
108. The Council claims that, in any event, access to social security benefits depends, according to Article 34(1) of the Charter of Fundamental Rights, on the rules laid down by Community law and national laws or, under Article 12(4) of the European Social Charter, on the measures adopted by the Contracting Parties. The Staff Regulations and the Conditions of Employment can thus define the social security scheme applicable to the European civil service. Furthermore, Article 34 of the Charter of Fundamental Rights does not refer to protection in the event of invalidity or death. The same observation applies to Article 35 of that charter, which states solely that everyone has the right of access to preventive healthcare and the right to benefit from medical treatment under the conditions established by national laws. Article 100 of the Conditions of Employment does not deprive the applicant of those guarantees. Furthermore, Article 12 of the European Social Charter concerns the establishment of a system of social security by the Contracting Parties, the maintenance of that system at a satisfactory level and the adoption of measures to guarantee that those advantages are enjoyed by persons moving between the Contracting Parties. Article 13 of that charter guarantees the right to social and medical assistance. Article 100 of the Conditions of Employment thus falls outside the scope of those two articles.
Findings of the Tribunal
109. It must be borne in mind that, under Articles 70 and 121 of the Conditions of Employment, members of the local staff and members of the auxiliary staff are to be affiliated to the compulsory national social security scheme, preferably that of the country to whose scheme they were last affiliated or that of their country of origin, in the case of auxiliary staff, or of the country on whose territory the member of staff is required to perform his duties, in the case of local staff. In the present case, the applicant was thus affiliated, from 1 May 2001 until 15 September 2006, under the Hungarian and Belgian social security laws in turn, in her capacity as a member of the local staff and then as a member of the auxiliary staff.
110. Members of the contract staff, on the other hand, are covered against the various social risks under the provisions of Chapter 8 ‘Social security benefits’ of Title IV ‘Contract staff’ of the Conditions of Employment, and in particular Articles 99 to 108, against the risks of invalidity and death. That means that, from the time of her recruitment as a member of the contract staff on 16 September 2006, the applicant ceased to be subject to Belgian social security law and came within the social security scheme as organised by the Conditions of Employment.
111. With respect to invalidity and death, Article 100 of the Conditions of Employment provides that, ‘[w]here the medical examination made before a member of the contract staff is engaged shows that he is suffering from sickness or invalidity, the [contracting authority] may, in so far as risks arising from such sickness or invalidity are concerned, decide to grant him guaranteed benefits in respect of invalidity or death only after a period of five years from the date of his entering the service of the institution’. A similar provision is to be found in Article 1(1) of Annex VIII to the Staff Regulations, applicable to officials, and Article 32 of the Conditions of Employment, applicable to temporary staff.
112. It is clear from the wording of Article 100 of the Conditions of Employment that that article provides a mere option for the contracting authority to defer medical cover, when the member of staff becomes affiliated to the Community social security scheme, where the existence of sickness or invalidity affecting that member of staff is revealed during the pre-employment medical examination. Furthermore, the period of exclusion from sickness or death cover relating to that sickness or invalidity lasts five years ‘from the date of [the person concerned’s] entering the service of the institution’.
113. It is appropriate to define what must be understood by ‘entering the service of the institution’, as the parties disagree as to the meaning to be ascribed to those words. In the applicant’s submission, it is necessary to take into consideration the beginning of the period of activity of the person concerned within the institution, whatever the type of contract with that institution, which, in the present case, corresponds to the date of the applicant’s recruitment as a member of the local staff, namely 1 May 2001. The Commission contends, on the other hand, that it is necessary to take account of the date on which the member of the contract staff became affiliated to the Community social security scheme, namely, in the present case, 16 September 2006.
114. In that regard, it has consistently been held that, 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 and Sumika Fine Chemicals
v Commission
[2005] ECR II‑4065, paragraph 47).
115. To begin with, the normal meaning of the wording used in Article 100 of the Conditions of Employment should have the effect that entry into the service of an institution coincides with the date on which the member of staff concerned commenced his duties within the institution, whatever the nature of the contract between him and the institution, which, in the present case, would mean that the period of exclusion from the guarantees afforded in respect of invalidity and death commenced on 1 May 2001. However, as the Commission has emphasised, it would make no sense if such a period of exclusion were deemed to commence before the member of staff concerned became affiliated to the Community social security scheme.
116. Since a period of exclusion from cover for a social risk can, by nature, begin only when the scheme covering that risk is applicable, there can be no question of making the period of exclusion from the guarantees provided for in relation to invalidity and death retroactive to the date on which the applicant commenced her duties within the Commission, namely to 1 May 2001.
117. However, for the purposes of interpreting Article 100 of the Conditions of Employment, in the light of the circumstances of the present case, it is still necessary to take account of the context in which that article occurs, of the objects of the rules of which it is part and also of other provisions of Community law.
118. As regards, in the first place, the context of Article 100 of the Conditions of Employment and the objects of the rules of which it is part, it should be observed that the article in question is part of a set of provisions in the Conditions of Employment intended to ensure that contract staff benefit from a high level of protection against traditional social security risks, including the risk of invalidity. In its written pleadings, the Commission also relied on that characteristic of the Community rules in its argument that those rules meet the purposes of the Charter of Fundamental Rights and the European Social Charter, in the spheres of protection of health and social security. In addition, the Commission acknowledged at the hearing that Article 100 of the Conditions of Employment is not applied automatically, since it merely provides an option for the contracting authority to defer medical cover.
119. It is important to emphasise, too, that, in the case of contract staff, as also in the case of officials and temporary staff, social protection, and in particular cover against the risk of invalidity, is organised by the institution itself pursuant to the Conditions of Employment. In adopting Regulation No 723/2004, the Community legislature inserted into Article 52 of the Conditions of Employment a provision phasing out auxiliary staff contracts by 31 December 2007, with the intention, as shown in recital 36 in the preamble to that regulation, of replacing those contracts by contract staff contracts. It is common ground that that reform was not accompanied by measures coordinating the national invalidity insurance schemes, to which members of the auxiliary staff were affiliated, and the Community invalidity insurance scheme, to which members of the contract staff are affiliated, as is the case in the general context of freedom of movement for workers within the Community, on the basis of Article 42 EC, or, more specifically, as provided for in Article 11 of Annex VIII to the Staff Regulations, with respect to old-age insurance.
120. In those circumstances, the administration, applying Article 100 of the Conditions of Employment with respect to former members of the auxiliary staff called upon, at the Commission’s request, to enter into a new contract, as members of the contract staff, cannot, when fixing the duration of the exclusion period provided for in Article 100 of the Conditions of Employment, ignore the fact that the members of staff concerned were previously in the service of the institution and were obliged to become affiliated to a different social security scheme on account of the change in the contractual regime imposed on those members of staff as a result of the reform of the Staff Regulations.
121. For all those reasons, it is consistent both with the particular context of Article 100 of the Conditions of Employment and with the more general context of the reform of the Staff Regulations, and also with the purpose of the rules of which Article 100 is part, to interpret that article strictly, bearing in mind that the deferral of medical cover has the consequence of depriving the person concerned of any invalidity pension, even, in principle, under the previously applicable national law, as the Commission acknowledged in the present case at the hearing, if his incapacity for work has its origin, during the exclusion period, in a disease revealed during the pre-employment medical examination.
122. In the second place, it is necessary, for the interpretation of Article 100 of the Conditions of Employment, to have regard to the requirements flowing, in the sphere of social security in particular, from the principle of freedom of movement for workers guaranteed by Article 39 EC, which is part of the foundations of the Community (see, for example, Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri
[2004] ECR I‑5257, paragraph 64, and Case C‑215/03 Oulane
[2005] ECR I‑1215, paragraph 16), and which the Commission must take into account when interpreting the rules of the Staff Regulations or of the Conditions of Employment.
123. In that connection, it has consistently been held that a Community national working in a Member State other than his State of origin does not lose his status of worker within the meaning of Article 39(1) EC through occupying a post within the Communities (Case C‑411/98 Ferlini
[2000] ECR I‑8081, paragraph 42, and Case C‑293/03 My
[2004] ECR I‑12013, paragraph 37). On that basis, he may not be refused the rights and social advantages which that article affords him ( Ferlini, paragraph 43, and My, paragraph 38; see also, to that effect, Case F‑54/06 Davis and Others
v Council
[2007] ECR-SC I-A-1-0000 and II-A-1-0000, paragraph 96).
124. At the hearing, however, the Commission, relying in particular on My, paragraph 123 above, paragraphs 38 and 40, contended that Article 39 EC is not applicable to the circumstances of the present case, since those circumstances relate to access to a post at a time when the applicant had already been admitted on to Belgian territory and had already worked there. In the Commission’s submission, the applicant’s situation should be dealt with in the same way as a situation internal to a Member State.
125. Such an argument cannot be accepted. It must be borne in mind, first of all, that Article 39 EC entails, as a matter of principle, that nationals of Member States have in particular the right to leave their country of origin to enter the territory of another Member State and reside there in order to pursue an economic activity there (Case C‑415/93 Bosman
[1995] ECR I‑4921, paragraph 95; Case C‑190/98 Graf
[2000] ECR I‑493, paragraph 22; and Case C‑212/06 Government of the French Community and Walloon Government
[2008] ECR I‑1683, paragraph 44).
126. In the present case, the applicant, who is of Hungarian nationality, left her country of origin in September 2003, before the accession of the Republic of Hungary to the European Union, to take up a post as a member of the auxiliary staff at the Commission. At the material time, admittedly, her removal to Belgium could not be equated to the exercise of the right to freedom of movement for workers within the meaning of Article 39 EC.
127. However, since the accession of the Republic of Hungary to the European Union on 1 May 2004, Article 39 EC has, in principle, been fully applicable to Hungarian na tionals, pursuant to Article 24 of the Act concerning the conditions of accession annexed to the Treaty between the 15 former Member States and the 10 new States concerning the accession of the latter States to the European Union, signed on 16 April 2003 (OJ 2003 L 236, p. 33), and to paragraph 1.1 of Annex X thereto, subject only to the transitional provisions laid down at paragraphs 1.2 to 1.14 of that annex. It follows that, since the accession of the Republic of Hungary, those provisions can be relied on by a Hungarian national who, since a date before the accession of her country of origin, has been in paid employment in a Member State other than the Member State of origin (see, to that effect, Case 9/88 Lopes da Veiga
[1989] ECR 2989, paragraphs 9 and 10, and Case C‑171/91 Tsiotras
[1993] ECR I‑2925, paragraph 12).
128. The abovementioned transitional provisions of Annex X to the Act concerning the conditions of accession of the Republic of Hungary do not prevent a worker of Hungarian nationality, who on the date of accession was lawfully employed in a Member State other than her State of origin, in particular within a Community institution, from being able, when taking up a different post with the same employer, to claim, on the territory of the host State, the rights and advantages afforded to her by Article 39 EC, especially in the sphere of social security.
129. My, paragraph 123 above, cannot affect the applicability of Article 39 EC in the present case. As has just been emphasised, the applicant, who is of Hungarian nationality, completed part of her working career in her country of origin before settling in Belgium in order to work there as a member of the auxiliary staff of the Commission and, then, to accept a post as a member of the contract staff within the same institution. Those circumstances distinguish the present case from the circumstances in My, where the plaintiff in the main proceedings, of Italian nationality, who had arrived in Belgium at the age of nine years, had completed his entire working career in Belgium. In the present case, by accepting a new post, in September 2006, within the Commission, and doing so in circumstances other than those envisaged by the transitional provisions of the Act concerning the conditions of accession of the Republic of Hungary, which limited the full application of Article 39 EC, the applicant specifically made use of one of the rights afforded to her by that article, namely the right to accept a post actually offered on the territory of the host State, which is not her State of origin.
130. The applicability of Article 39 EC in the present case is thus established. This being so, it should be pointed out that the manner in which an activity is pursued is also liable to affect access to that activity and that legislation which relates to the conditions in which an economic activity is pursued may constitute an obstacle to freedom of movement for workers (Case C‑464/02 Commission
v Denmark
[2005] ECR I‑7929, paragraph 37). In particular, according to settled case-law, the objective of Articles 39 EC to 42 EC would not be attained if, as a result of exercising his right to freedom of movement, a worker were to lose social security advantages granted to him by the legislation of a Member State; that might dissuade Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (Case C‑12/93 Drake
[1994] ECR I‑4337, paragraph 22, and Case C‑443/93 Vougioukas
[1995] ECR I‑4033, paragraph 39).
131. In fact, the application of Article 100 of the Conditions of Employment, in the circumstances of the present case, penalises the applicant and is therefore such as to produce a deterrent effect of this kind, since, by agreeing to remain in the service of the defendant institution under a new contract as a member of the contract staff, she loses, for five years, owing to the deferral of medical cover, the advantage of the invalidity benefits guaranteed to her by the previously applicable Belgian legislation, without however acquiring a right to Community benefits for invalidity and death arising from the sickness revealed during her pre-employment medical examination.
132. It was precisely in order to ensure that the exercise of the right to freedom of movement, as conferred by the Treaty, does not have the effect of depriving a worker of social security advantages which he would have been entitled to claim if he had completed his working career in a single Member State, that the Community legislature implemented Article 42 EC, laying down, in particular, the rule on the aggregation of insurance, residence or employment periods in the sphere of social security, by adopting Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416), which has been amended on a number of occasions. The Court of Justice has thus held, with respect to national legislation which made the grant of invalidity benefits subject to the condition that at the time when the insurance cover became effective the claimant’s state of health must not have been such as to make it foreseeable that incapacity for work followed by invalidity would shortly occur, that Article 38(1) of Regulation No 1408/71, which contains an aggregation rule in relation to invalidity, prevents the national institution from treating the starting date of insurance cover under the legislation which it administers as the commencement date for the periods of insurance to be taken into account for the purposes of the payment of invalidity benefits (Case C‑481/93 Moscato
[1995] ECR I‑3525, paragraph 30; see also, to that effect, Case C‑482/93 Klaus
[1995] ECR I‑3560, paragraph 23).
133. Admittedly, Regulation No 1408/71, which is applicable to auxiliary staff, does not apply to contract staff or to officials and temporary staff of the European Communities (see Ferlini, paragraph 123 above, paragraph 41, and My, paragraph 123 above, paragraph 35). The fact none the less remains that those persons have the status of worker within the meaning of Article 39 EC and that the Court of Justice, in Moscato, paragraph 132 above, paragraph 28, emphasised the obstacle to freedom of movement that would exist if a national entity, in the context of the administration of a national provision comparable to that contained in Article 100 of the Conditions of Employment, took as the commencement date of cover only the time when insurance cover became effective under the national legislation which it administers and disregarded the periods of cover completed by the person concerned under the legislation of another Member State.
134. It should be further observed that, ‘[w]ith a view to ensuring the effective exercise of the right to social security’, Article 12(4)(b) of the European Social Charter ensures ‘the … maintenance … of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties’. Although the Community has not acceded to that charter, the charter is mentioned in the fourth recital in the preamble to the Treaty on European Union, and also in Article 136 EC, and forms part of the international instruments which should guide the institutions in the application and interpretation of the provisions of the Staff Regulations and of the Conditions of Employment, especially those which tend to deprive a worker of fundamental social protection by means of a simple option left to the discretion of the administration.
135. It is true, moreover, that the case-law referred to at paragraph 132 above concerns situations in which the loss of social security advantages arose on the very occasion of the exercise of the right to freedom of movement, following a change in the country of insurance, whereas in the present case the administration applied Article 100 of the Conditions of Employment on the occasion of the change in the type of contract of employment and the applicable social security scheme, which occurred three years after the applicant arrived on Belgian territory in order to carry out an economic activity there.
136. However, that circumstance does not invalidate the finding that, owing to the conversion of her contract as a member of the auxiliary staff into a contract as a member of the contract staff, which was made compulsory by the reform of the Staff Regulations, and to the subsequent change in the applicable social security scheme, the applicant, who had left her State of origin in 2003 in order to work within the Commission, was subsequently:
– either in the position of being forced to suffer the loss of the advantage of invalidity benefits which she was guaranteed under the previously applicable Belgian legislation, but without acquiring a right to Community benefits in respect of invalidity or death that might be the consequence of the sickness revealed during her pre-employment medical examination, which she would have been able to claim if the periods of insurance which she had previously completed under the Belgian legislation and with the same employer were taken into account; or
– obliged, upon expiry of her contract as a member of the auxiliary staff, to give up the pursuit in Belgium of her employment with the Commission, for which she had specifically left her country of origin.
137. It should be further observed, with respect to the latter point, that under Article 100 of the Conditions of Employment medical cover may be deferred for any member of the auxiliary contract staff ‘from the date of his entering the service of the institution’ following a ‘medical examination made before [he] is engaged’. Specifically, the applicant’s contract as a member of the auxiliary staff automatically lapsed upon expiry of its term on 15 September 2006 and the Commission, treating her as a new member of staff, deferred medical cover under the abovementioned conditions of Article 100 of the Conditions of Employment. Thus, in the present case, Article 100 of the Conditions of Employment imposed conditions on a worker’s access to the employment market.
138. It follows that the application of Article 100 of the Conditions of Employment penalises the applicant in the circumstances of the present case and is liable to impede the exercise of the rights conferred by Article 39 EC, which constitutes a fundamental provision for the Community.
139. Yet the Commission has not shown, or even sought to show, that such an obstacle to the exercise of the rights conferred by Article 39 EC was necessary to the pursuit of an objective in the public interest, that it was appropriate to ensuring the attainment of that objective and that it did not go beyond what is necessary to attain the objective pursued (see, to that effect, Government of the French Community and Walloon Government, paragraph 125 above, paragraphs 48, 52 and 55). It must also be borne in mind, in that regard, that purely economic objectives cannot justify a restriction of a fundamental freedom guaranteed by the Treaty (Case C‑398/95 SETTG
[1997] ECR I‑3091, paragraph 23, and Case C‑158/96 Kohll
[1998] ECR I‑1931, point 41).
140. Furthermore, the fact that the application of Article 100 of the Conditions of Employment might also entail the absence of cover against the risks of invalidity for Belgian nationals who also entered into a contract as a member of the contract staff with the Commission, after having worked in Belgium as a member of the auxiliary staff, but without ever having exercised their right of freedom of movement within the Community, is not capable of preventing a national of another Member State who has made use of his right to freedom of movement from benefiting, in a comparable situation, from the social rights and advantages conferred by Article 39 EC (see, to that effect, Government of the French Community and Walloon Government, paragraph 125 above, paragraphs 36 to 42).
141. In the light of all the foregoing considerations, it was for the contracting authority, in the particular circumstances of the case, not to exercise the option provided for in Article 100 of the Conditions of Employment, in order not to deprive the applicant of social security advantages which she would have been entitled to claim if she had continued to be covered under the laws of Hungary or Belgium.
142. Last, it is necessary to respond to the Commission’s argument that, in invoking, in particular, Article 39 EC, on which the applicant did not rely in her written pleadings, in relation to the deferral of her medical cover, the Tribunal was reviewing of its own motion the lawfulness of an administrative act of the contracting authority in relation to a plea alleging infringement of a provision of the Treaty.
143. It is important to point out, as a preliminary point and generally, that the limitation of the power of the Tribunal to raise a plea of its own motion is a consequence of its obligation to confine itself to the subject-matter of the dispute and to base its decision on the facts adduced before it. That limitation is justified by the principle that it is for the parties to take the initiative in the proceedings, such that the court may act of its own motion only in exceptional instances involving the public interest (see, to that effect, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others
[2007] ECR I‑4233, paragraphs 34 to 36).
144. Without there being any need to identify here the instances in which it would be open to the Tribunal to raise a plea of its own motion, it is sufficient to observe that, in defining the legal framework within which a provision of secondary law must be interpreted, the Community judicature does not rule on the lawfulness of that provision by reference to higher rules of law, including those of the Treaty, but seeks the interpretation of the provision at issue which makes its application as compatible as possible with primary law and as consistent as possible with the legal framework within which it falls. In the present case, by interpreting Article 100 of the Conditions of Employment, in particular, in the light of the requirements flowing from freedom of movement for workers, enshrined in Article 39 EC, the Tribunal did not stray beyond the limits of the dispute as circumscribed by the applicant and did not rely on facts and circumstances other than those on which she based her action. The argument put forward by the applicant before the Tribunal, without, it is true, any express reference to Article 39 EC, and that contained in the present judgment with respect to the interpretation of Article 100 of the Conditions of Employment by reference to Article 39 EC are, moreover, very much the same in substance.
145. Furthermore, the rights of the defence were respected, in so far as all the parties were invited, in the preliminary report, to express their views at the hearing on any consequences to be drawn, in the present case, from the judgments in Moscato, paragraph 132 above, Vougioukas, paragraph 130 above, and My, paragraph 123 above, with respect to protection against invalidity and the rule on aggregation of insurance periods, as laid down in Article 42(a) EC.
146. The Commission’s argument that, in examining the present dispute from the aspect of, in particular, Article 39 EC, the Tribunal departed from the passive role which it is required to play must be rejected.
147. It follows from all the foregoing, and without there being any need to examine the consequences of freedom of movement for workers within the Community for the interpretation of Article 100 of the Conditions of Employment in circumstances other than those of the present case, that it was for the contracting authority not to exercise, against the applicant, the option provided for in Article 100 of the Conditions of Employment.
148. Consequently, the Commission was not entitled to defer the applicants’ medical cover on the basis of Article 100 of the Conditions of Employment.
149. The first plea directed against the deferral of medical cover must therefore be upheld as well founded and, accordingly, the decision to defer the applicant’s medical cover must be annulled, without there being any need to examine the second plea having the same object, which plea could not lead to a more extensive annulment.
Costs
150. Under Article 122 of the Rules of Procedure, the provisions of Title 2, Chapter 8, on costs are to apply only to cases brought before the Tribunal from the date on which those Rules of Procedure entered into force, that is to say, 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance are to continue to apply mutatis mutandis
to cases pending before the Tribunal before that date.
151. Consequently, the provisions on costs of the Rules of Procedure of the Court of First Instance are applicable to Case F‑69/07.
152. Under Article 87(2) and (3), first subparagraph, 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. None the less, where each party succeeds on some and fails on other heads, the Tribunal may order that the costs be shared or that each party bear its own costs. Furthermore, Article 88 of those Rules of Procedure provides that in proceedings between the Communities and their servants the institutions are to bear their own costs.
153. In addition, Article 87(4) of the Rules of Procedure of the Court of First Instance provides that the institutions which intervened in the proceedings are to bear their own costs.
154. Moreover, under Article 87(1) of the Rules of Procedure, applicable to Case F‑60/08, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
155. Last, Article 89(4) of the Rules of Procedure provides that interveners are to bear their own costs.
156. It follows from the grounds set out above that the applicant has been successful in respect of one of the two objects of her application in Case F‑69/07. The Tribunal thus considers that, as regards the costs in that case, the Commission must be ordered to bear its own costs and to pay half the costs incurred by the applicant, who must bear the other half of her costs.
157. As the applicant has been unsuccessful in Case F‑60/68, she must be ordered to bear her own costs and to pay the Commission’s costs in that case.
158. Furthermore, the Council, as intervener, must bear its own costs in both Case F‑69/07 and Case F‑60/08.
Operative part
On those grounds,
THE TRIBUNAL (Second Chamber)
hereby:
1. Annuls the decision of the Commission of the European Communities of 14 September 2006, in that it defers the applicant’s medical cover;
2. Dismisses the application in Case F‑69/07 O
v Commission
for the remainder as unfounded;
3. Dismisses the application in Case F‑60/08 O
v Commission
as inadmissible;
4. In Case F‑69/07, orders the Commission of the European Communities to bear its own costs and to pay half of the applicant’s costs;
5. Orders the applicant to bear half of her costs in Case F‑69/07 and to bear her own costs and pay the costs of the Commission of the European Communities in Case F‑60/08;
6. Orders the Council of the European Union to bear its own costs in both cases.