62009FJ0105_EN
Parties
Grounds
Operative part
Parties
In Case F-105/09,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Séverine Scheefer, a member of the European Parliament’s temporary staff, residing in Luxembourg (Luxembourg), represented by R. Adam and P. Ketter, lawyers,
applicant,
v
European Parliament,
represented initially by R. Ignătescu and L. Chrétien, and subsequently by R. Ignătescu and S. Alves, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL (Third Chamber),
composed of P. Mahoney, President, H. Kreppel and S. Van Raepenbusch (Rapporteur), Judges,
Registrar: J. Tomac, Administrator,
having regard to the written procedure and further to the hearing on 17 November 2010,
gives the following
Judgment
Grounds
1. By an application lodged at the Registry of the Tribunal on 23 December 2009 Ms Scheefer essentially seeks annulment of the decision of the European Parliament of 12 February 2009 confirming that her contract as a member of the temporary staff would end on 31 March 2009 and annulment of the decision of 12 October 2009 rejecting her complaint, and compensation for the loss she claims to have suffered as a result of the Parliament’s conduct.
Legal context
The Conditions of Employment of Other Servants of the European Union
2. Article 2 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) provides as follows:
‘For the purposes of these conditions of employment, “temporary staff” means:
(a) staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;
…’.
3. The first paragraph of Article 8 of the CEOS provides that:
‘Temporary staff to whom Article 2(a) applies may be engaged for a fixed or indefinite period. The contracts of such staff who are engaged for a fixed period may be renewed not more than once for a fixed period. Any further renewal shall be for an indefinite period.’
4. Article 7(2) to (4) of the Internal Rules on the Recruitment of Officials and Other Servants, adopted by the Parliament’s Bureau on 3 May 2004 (‘the Internal Rules’) provides that:
‘2. Without prejudice to the rules applicable to officials, temporary staff shall be recruited in order of ranking from among the candidates short-listed following competitions or a recruitment procedure as provided for in Article 29(2) of the Staff Regulations [of officials of the European Union].
3. Where no such candidates are available, temporary staff shall be recruited:
– following selection by an ad hoc committee including a member appointed by the Staff Committee, in the case of the temporary staff referred to in Article 2(a) of the CEOS;
– after the Joint Committee has delivered its opinion, in the case of the temporary staff referred to in Article 2(b) of the CEOS.
4. Notwithstanding the above provisions, the temporary staff referred to in Article 2(a) of the CEOS may be recruited in accordance with the procedure laid down in paragraph 3, second indent, of this article if the sole purpose of the recruitment is to fill posts temporarily until such time as they are filled in accordance with the provisions of paragraph 3, first indent, of this article.’
The framework agreement on fixed-term work
5. Clause 5 of 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), states that:
‘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 dispute
6. By a contract signed on 29 March and 4 April 2006 respectively, the Parliament employed the applicant as a member of its temporary staff under Article 2(a) of the CEOS for the period from 1 April 2006 to 31 March 2007 (‘the original contract’) and assigned her as a doctor to the Luxembourg Medical Service (Luxembourg).
7. By an amendment signed by the Parliament on 23 February 2007 and by the applicant on 26 February 2007 (‘the amendment of 26 February 2007) the original contract was extended until 31 March 2008.
8. On 18 October 2007 the Parliament published notice PE/95/S announcing the organisation of a selection procedure based on qualifications and tests for the recruitment of a temporary administrator-doctor (OJ 2007 C 244 A, p. 5). The applicant submitted an application, but it was refused on the ground that she did not have the requisite experience.
9. By an amendment of 26 March 2008 replacing that of 26 February 2007 (‘the amendment of 26 March 2008’) the original contract was extended until 31 March 2009.
10. By a letter of 22 January 2009 the applicant asked the Secretary-General of the Parliament about the possibility of continuing to work in the institution’s medical service under a contract for an indefinite period.
11. On 12 February 2009 the Secretary-General of the Parliament replied to the applicant that after having examined her situation in detail it had not been possible to find a legally acceptable solution to enable her to continue working within the medical service, and he confirmed that her contract would end as scheduled on 31 March 2009.
12. On 2 April 2009 the applicant lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) asking the Parliament to grant her the right to a contract of indefinite duration pursuant to the first paragraph of Article 8 of the CEOS, and to extend her contract as a member of the temporary staff beyond 31 March 2009.
13. On 12 October 2009 the authority empowered to conclude contracts of employment rejected her complaint as inadmissible or, in the alternative, as unfounded
Forms of order sought and procedure
14. The applicant claims that the Tribunal should:
– ‘… annul the Parliament’s decision of 12 February 2009 …;
– ... annul the Parliament’s decision of 12 October 2009 …;
– ... annul the legal characterisation of the original contract and its date of expiry set at 31 March 2009;
– accordingly, convert the applicant’s contract of engagement into an engagement for an indefinite period;
– compensate the applicant for the loss she suffered as a result of the Parliament’s conduct;
– in the alternative and if, contrary to all probability, the Tribunal reaches the conclusion that, despite the forming of a contract of engagement for an indefinite period, the working relationship has ceased …, grant damages and interest for wrongful termination of the contractual relationship;
– in the further alternative and if, contrary to all probability, the Tribunal reaches the conclusion that no conversion of the contract is possible …, grant damages and interest for the loss suffered by the applicant by reason of the … Parliament’s wrongful conduct;
– reserve to the applicant all other rights, remedies, pleas and actions and, in particular, an order that the Parliament pay damages and interest in connection with the loss suffered;’
– order the Parliament to pay the costs.
15. By a separate document lodged at the Registry of the Tribunal on 18 February 2010, the Parliament raised a plea of inadmissibility against the action pursuant to the first paragraph of Article 78(1) of the Rules of Procedure.
16. The Parliament claims, in its plea of inadmissibility, that the Tribunal should:
– declare the application manifestly inadmissible in all its heads of claim;
– order the applicant to pay the costs.
17. By document lodged at the Tribunal Registry on 17 March 2010, the applicant submitted her observations on the Parliament’s plea of inadmissibility.
18. By order of the Tribunal (Third Chamber) of 8 July 2010, consideration of the plea of inadmissibility was reserved for the final judgment.
19. In its defence, lodged at the Registry of the Tribunal on 10 September 2010, the Parliament claims that the Tribunal should:
– declare the action for annulment unfounded;
– dismiss as inadmissible the applicant’s claim that her contract of engagement should be converted into an engagement for an indefinite period;
– dismiss as inadmissible the applicant’s claim for damages and interest for the loss suffered by reason of the Parliament’s wrongful conduct;
– dismiss as unfounded the applicant’s claim for damages and interest for wrongful termination of the contract;
– order the applicant to pay the costs.
Law
The second head of claim seeking annulment of the decision of 12 October 2009
20.
In her second head of claim the applicant seeks annulment of the Parliament’s decision of 12 October 2009 rejecting her complaint.
21. It should be pointed out, however, that a claim for annulment formally directed against the rejection of a complaint has the effect of bringing before the Tribunal the act against which the complaint was submitted, where that claim, as such, lacks any independent content (see, to that effect, judgment of 17 January 1989 in Case 293/87 Vainker
v Parliament, paragraph 8; judgment of 6 April 2006 in Case T-309/03 Camós Grau
v Commission, paragraph 43; and judgment of 11 December 2008 in Case F-136/06 Reali
v Commission, paragraph 37), and that they are in reality indissociable from the act against which the complaint was lodged.
22. Therefore, even if it cannot be denied that all applicants have an interest in seeking annulment of the decision rejecting their complaint at the same time as that of the act adversely affecting them, the action in the present case must be regarded as being directed against the decision which the applicant claims is contained in the letter of 12 February 2009 from the Parliament’s Secretary-General (‘the contested decision’).
The third and fourth heads of claim seeking reclassification of the applicant’s contract
23. In her third and fourth heads of claim the applicant seeks annulment of the legal characterisation of her original contract and the conversion of that contract into employment for an indefinite period.
24.
It must be observed that, while the legal characterisation of a measure is a matter for the Tribunal alone and not for the parties, the Tribunal can annul only acts adversely affecting a party and not, as such, the characterisation which their author mistakenly gave them. Furthermore, it is settled case-law that, in the context of an action brought under Article 91 of the Staff Regulations, the Courts of the European Union may not make declarations or findings of principle nor issue instructions to a European Union institution without encroaching upon the powers of the executive (see judgment of 13 July 1989 in Case 108/88 Jaenicke Cendoya
v Commission, paragraphs 8 and 9; order of 16 May 2006 in Case F-55/05 Voigt
v Commission, paragraph 25; judgment of 30 April 2009 in Case F-65/07 Aayhan and Others
v Parliament, paragraph 52).
25. The third and fourth heads of claim must therefore be rejected as inadmissible in so far as they ask the Tribunal in the operative part of this judgment to reclassify the applicant’s contract.
The first and third heads of claim seeking annulment of the contested decision and annulment of the fixing of the date of expiry of the contract at 31 March 2009
Arguments of the parties
– Admissibility of the claims
26. The Parliament contends that, in her letter of 22 January 2009, the applicant did not request a further renewal of her original contract, but asked the administration to recognise that the amendment of 26 March 2008 had resulted in the conversion of that contract into employment of indefinite duration, from which she inferred that the contested decision refusing to grant that request constituted an act adversely affecting her.
27. The Parliament points out, however, that a contract deploys its effects from the time it is signed and therefore considers that it is the amendment of 26 March 2008 extending the original contract until 31 March 2009 that must be deemed to constitute the act adversely affecting her. The applicant should therefore have lodged a complaint against that amendment within three months of its signature. In submitting a request on 22 January 2009 to have her employment recognised as being of indefinite duration, the applicant was attempting to circumvent the time-limits laid down in the Staff Regulations and compensate for the fact that she had not lodged a complaint in good time.
28. The Parliament adds that, in the contested decision, the Secretary-General merely ‘confirm[ed] that [the applicant’s] contract w[ould] end on the scheduled date of 31 March 2009’. It thus merely confirmed an earlier decision and is not, according to settled case-law, subject to review.
29. The Parliament infers from this that the applicant’s claim for annulment of the contested decision is inadmissible.
30. The applicant replies, by way of its principal argument, that the plea of illegality submitted on 18 February 2010 is out of time in the light of Article 78(1) of the Rules of Procedure, which provides that ‘[a] party applying to the Tribunal for a decision on admissibility … shall make the application … within a month of service of the application’, which she claims occurred on 8 January 2010.
31. In the alternative, the applicant disputes the substance of the plea of inadmissibility, arguing that in the contested decision the Secretary-General gave a ruling not on an application for a contract extension, but on the question whether or not the second renewal of the original contract had converted it into a contract for an indefinite period. After examining the situation, the Parliament had concluded that there was ‘no legally acceptable solution’ that enabled her to continue working, so that the original contract would end upon expiry of the amendment of 26 March 2008, that is, on 31 March 2009.
32. In the applicant’s view, the contested decision cannot therefore be regarded as a mere item of information or a purely confirmatory measure. It constitutes a decision resolving a specific legal question and directly affecting her interests. The Parliament’s assertion that it had not been possible to find any solution was an admission that such a solution had indeed been sought after the conclusion of the amendment of 26 March 2008.
33. The applicant observes that, in the Parliament’s view, she should herself have applied for a third renewal of her contract, even though it is apparent from the first paragraph of Article 8 of the CEOS that her contract should not even have been renewed for a second time and that, since that second renewal, it had in reality been converted automatically into a contract for an indefinite period.
34. In the alternative, the applicant argues that the amendment of 26 March 2008 cannot be characterised as an ‘act adversely affecting’ her in so far as it is clear from the wording of the first paragraph of Article 8 of the CEOS that its signature amounted to the conclusion of a contract for an indefinite period.
35. In the further alternative, the applicant points out that since the Parliament itself classified her letter of 2 April 2009 as a ‘complaint’ within the meaning of Article 90(2) of the Staff Regulations, she had continued with the procedure by bringing the present application.
– Substance
36. The applicant raises three pleas in law, the first alleging infringement of the first paragraph of Article 8 of the CEOS, an error of law and a manifest error of assessment, the second, breach of the duty to state reasons, and the third, abuse of power and breach of the duty to have regard for the welfare of staff, the principle of sound administration, the principle of legitimate expectations, the principle of equal treatment and the principle that contracts should be performed in good faith, and abuse of rights.
37. As regards the first plea, the applicant claims that, in accordance with the first paragraph of Article 8 of the CEOS, so far as concerns the second modification to her original contract, the amendment of 26 March 2008 resulted in the reclassification of her fixed-term contract as a contract for an indefinite period, and that in rejecting that reclassification the contested decision infringed that provision.
38. Admittedly, the applicant observes that the amendment of 26 March 2008 ‘cancels and replaces’ that of 23 February 2007. However, she considers that it cannot be inferred from that replacement that, in accordance with the first paragraph of Article 8 of the CEOS, the contract was renewed only once for a fixed period, as the Parliament maintains. Even taking account of the broad discretion which the Parliament enjoys, that approach was a contrivance that should not enable it to circumvent the above-mentioned provision.
39. The Parliament replies that the doctors it employs are members of the temporary staff under Article 2(a) of the CEOS and that pursuant to Article 7(2) of the Internal Rules they must be recruited from among the candidates short-listed following competitions or a recruitment procedure as provided for in Article 29(2) of the Staff Regulations. In the absence of a reserve list of doctors and having received no applications in response to notices of vacancy it had published in order to fill the post left vacant by the applicant’s predecessor, it had been obliged to recruit the applicant for a limited period and as a temporary measure, on the basis of Article 7(4) of the Internal Rules, until it was in a position to engage a doctor in accordance with the selection procedure required by Article 7(2) of the Internal Rules. That was the purpose of the applicant’s original contract.
40. The original contract had been extended once, by the amendment of 26 February 2007, until 31 March 2008. However, because it did not yet have a reserve list to fill the vacant doctor’s post, the Parliament had been obliged to extend the original contract a further time.
41. The Parliament argues in that respect that, although the conclusion of several successive fixed-term contracts is prohibited as a general rule, an exception should nevertheless be made in a situation where there are legitimate reasons justifying a succession of fixed-term contracts. That had been true in the present case, since the decisions to extend the original contract had been taken in order to guarantee continuity of the medical service, whereas the Parliament could not offer the applicant a contract for an indefinite period without infringing its internal rules.
42. Moreover, the first paragraph of Article 8 of the CEOS does not preclude the conclusion of a fixed-term employment contract with an indefinite time-limit, for example, as in the present case, until such time as a doctor is appointed. In that respect the expiry dates fixed in the two addenda to the original contract should be understood as only provisional dates.
43. Lastly, the Parliament points out that the amendment of 26 March 2008 extending the original contract until 31 March 2009 benefited the applicant in so far as it was open to it not to extend that contract and to engage another doctor, or to extend it only for the few months needed to recruit a doctor in accordance with the selection procedure.
Findings of the Tribunal
44. First of all, it is necessary to define the scope of the applicant’s third head of claim, which seeks annulment of the ‘date of expiry [of her original contract] set at 31 March 2009’.
45. That head of claim could be understood to refer to the date of 31 March 2009 which the Parliament’s Secretary-General ‘confirmed’ in the contested decision. If that were the case, however, it would be indissociable from the first head of claim, which specifically seeks annulment of that decision. Thus, in order to give this head of claim an independent scope, it must be understood as seeking annulment of the amendment of 26 March 2008 in so far as it sets the end of the applicant’s employment at 31 March 2009.
46. That point having been made, and with regard to the applicant’s allegation that the Parliament’s plea of inadmissibility was raised out of time, it should be noted that under the first paragraph of Article 78(1) of the Rules of Procedure of the Civil Service Tribunal, an application for a decision on admissibility not going to the substance of the case must be submitted within a month of service of the application, to which must be added the single period of ten days’ extension on account of distance provided for in Article 100(3) of the Rules of Procedure. In the present case the Parliament received service of the application on 8 January 2010. The plea of admissibility lodged on 18 February 2010 was therefore submitted on the last day of the period thus calculated, and is therefore admissible.
47. Concerning the merits of the plea of admissibility, it should be noted that an action for annulment is admissible only if the complaint that must precede it has been lodged within the period of three months provided for in Article 90(2) of the Staff Regulations following the act which adversely affected the applicant.
48. As for determining the point at which the act adversely affecting the applicant occurred, in other words, fixing the date from which the time-limit for lodging the complaint must be calculated, it should be noted that a contract deploys its effects and, consequently, its ability adversely to affect the staff member from the time it is signed, so that it is, as a rule, from the date of signature that the time-limit for lodging a complaint in good time should be calculated for the purposes of Article 90(2) of the Staff Regulations (judgment of 11 July 2002 in Joined Cases T-137/99 and T-18/00 Martínez Páramo and Others
v Commission, paragraph 56; judgment in Case F-65/07 Aayhan and Others
v Parliament, paragraph 24 above, paragraph 43).
49. In the light of the foregoing, the applicant could conceivably have formally lodged a complaint against the amendment of 26 March 2008 on the ground that it was not concluded for an indefinite period (see, to that effect, the judgment in Aayhan and Others
v Parliament, paragraph 24 above, paragraph 44). That was not the case, however. In the absence of a complaint within the three month period provided for in Article 90(2) of the Staff Regulations, therefore, the third head of claim seeking annulment of that amendment in so far as it sets the end of the applicant’s employment at 31 March 2009 is out of time and therefore inadmissible.
50. However, it does not follow that the first head of claim against the contested decision is also inadmissible.
51. Account must be taken of the particular circumstances of the case, that is to say, that the applicant was employed as a member of the temporary staff under Article 2(a) of the CEOS, that that employment was extended by the amendment of 26 February 2007, and that the second amendment of 26 March 2008 ‘cancel[led] and replace[d]’ the first in order to extend the applicant’s employment until 31 March 2009, whereas under the first paragraph of Article 8 of the CEOS, the employment of a member of the temporary staff under Article 2(a) of the CEOS may be renewed not more than once for a fixed period, ‘(a)ny further renewal […] be[ing] for an indefinite period’.
52. It must be noted that ‘cancel[ling] and replac[ing]’ a first amendment extending the applicant’s employment for a fixed period by a further amendment extending her employment for a further fixed period, so that it might be claimed that there has actually been only one extension for a fixed period, is a contrivance which negates the first paragraph of Article 8 of the CEOS.
53. By referring to ‘any further renewal’, the first paragraph of Article 8 of the CEOS applies to any procedure by which a member of the temporary staff under Article 2(a) of the CEOS is obliged, in that capacity, to continue his working relationship with his employer following a fixed-term contract which has been renewed once.
54. However, Directive 1999/70 and the Framework Agreement annexed to it must be taken into consideration here. The fact that a directive is not, as such, binding on the institutions does not preclude those institutions from having to take it into account indirectly in their relations with their officials and other servants. It should therefore be pointed out that it is necessary for the Parliament as an employer, in accordance with its duty to cooperate in good faith, to interpret and apply, as far as possible, the provisions of the CEOS in the light of the letter and purpose of the Framework Agreement. The Framework Agreement makes stable employment a prime objective as regards labour relations within the European Union ( Aayhan and Others
v Parliament, paragraph 24 above, paragraphs 119 and 120). More precisely, clause 5(1) of the Agreement is intended specifically to ‘prevent abuse arising from the use of successive fixed-term employment contracts or relationships’ by imposing on the Member States the obligation to introduce into their legal systems one or more of the measures listed in clause 5(1)(a) to (c). Clause 5(2)(b) provides that fixed-term contracts may, where appropriate, be ‘deemed to be contracts or relationships of indefinite duration’.
55. It must therefore be considered, as far as the institutions are concerned, that the first paragraph of Article 8 of the CEOS must be interpreted in a manner which ensures that it has a broad scope, and that it must be applied strictly, since its purpose is precisely to restrict the use of successive fixed-term contracts as members of the temporary staff by ‘deem[ing] to be contracts or relationships of indefinite duration’ any third fixed-term contract concluded.
56. The Parliament argues, to no avail, that Article 7(4) of its Internal Rules prevented it from concluding a contract for an indefinite period, even though it needed to guarantee continuity of the Luxembourg medical service. While Article 7(4) of the Internal Rules provides that posts may be filled temporarily until such time as they are filled in accordance with the procedure laid down in those rules, that provision does not require the conclusion of fixed-term contracts, as in the present case, for a specific period. It should be noted in that respect that, according to clause 3 of the Framework Agreement, a fixed-term contract is a contract the end of which is determined by objective conditions such as reaching a specific date, but also the occurrence of a specific event. Furthermore, Article 7(4) does not prohibit the use of fixed-term contracts in so far as a temporary situation may, as in the present case, continue for an indefinable period of time, and such a contract does not, in any event, offer the beneficiary the stability of appointment as an official, since it may be terminated for legitimate reasons and provided that a period of notice is given, in accordance with Article 47(c)(i) of the CEOS. In any event, the Internal Rules have less binding force than the CEOS and cannot prevent the first paragraph of Article 8 of the CEOS from producing its effects.
57. The Parliament argues, again to no avail, that the first paragraph of Article 8 of the CEOS does not prevent the conclusion of a fixed-term contract with an indefinite time-limit. That argument, which is theoretically correct if that time-limit coincides with the occurrence of a specific event (see paragraph 56 above), is irrelevant in the present case, since the original contract and its addenda mentioned specific expiry dates. The Parliament’s claim that it could have refused to extend the original contract by the amendment of 26 March 2008, or could have extended it only for a shorter period than the year granted to the applicant, is also irrelevant. These are merely possible scenarios which do not reflect the facts. Moreover, a second extension even for less than a year would, in any event, have constituted a renewal for the purposes of the first paragraph of Article 8 of the CEOS.
58. Finally, the Parliament cannot rely on the exceptional situation in which it claims to have found itself as a result of the fact that a doctor’s post in the Luxembourg medical service was vacant and that it was unable to fill it quickly. It has been explained above that Article 7(4) of the Internal Rules did not prevent the Parliament from concluding a contract for an indefinite period which it could have terminated at any time for legitimate reasons, provided that the period of notice laid down in Article 47(c)(i) of the CEOS was given.
59. It follows from all the foregoing that the applicant satisfied the conditions for the application of the first paragraph of Article 8 of the CEOS.
60. According to that provision, ‘any subsequent renewal’ following a first extension for a fixed period of a fixed-term contract as a member of the temporary staff under Article 2(a) ‘shall be for an indefinite period’, and it is apparent that that reclassification must be regarded as operating automatically.
61. The Tribunal must therefore find that the amendment of 26 March 2008 was automatically converted into an engagement for an indefinite period in accordance with the intention of the legislature, and that the expiry of the period set in that amendment could not lead to the end of the applicant’s employment.
62. Consequently, the contested decision by which the Parliament’s Secretary-General considered that no legally acceptable solution could be found to enable the applicant to continue working within the Luxembourg medical service and by which he ‘confirmed’ that her contract would end on 31 March 2009 necessarily brought about a distinct change in her legal position under Article 8 of the CEOS. That decision thus constitutes an act adversely affecting her, and not a decision merely confirming an earlier decision.
63. Since the applicant lodged a complaint against the contested decision within three months of its notification, and since she brought the present action within three months of notification of the rejection of that complaint, the claim for annulment of that decision is therefore admissible.
64. As for the merits, it is clear from paragraphs 51 to 62 of this judgment that, in allegedly confirming to the applicant that her contract was coming to an end, the contested decision was taken in relation to a fixed-term employment relationship and therefore infringed the first paragraph of Article 8 of the CEOS. At the hearing the Parliament conceded, moreover, that the solution of keeping the applicant in service by means of a number of fixed-term contracts was not ‘ideal’.
65. It follows that the action is well-founded and that the contested decision must be annulled on the basis of the plea alleging infringement of the first paragraph of Article 8 of the CEOS, without there being any need to consider the other pleas in the application, or whether that decision actually constituted a measure terminating a contract which had become a contract for an indefinite period, or whether the conditions for that cancellation were satisfied, as the applicant raised no plea to that effect.
The fifth head of claim seeking compensation for the loss suffered by the applicant
66. The applicant seeks compensation for the loss she claims to have suffered as a result of the Parliament’s conduct. The Parliament counters that the applicant does not specify the nature of its allegedly wrongful conduct. It adds that if the conduct in question does not arise from the contested decision, the applicant should have initiated the pre-litigation procedure with a request under Article 90(1) of the Staff Regulations.
67. It is clear from the application, however, that the applicant draws a distinction between her claim for compensation under her fifth head of claim and her claims for damages and interest under her sixth, seventh and eighth heads of claim. Furthermore, the applicant stated at the hearing that she does not seek, in her fifth head of claim, the award of damages and interest, but the award of the ‘financial component’ which is the ‘logical consequence’ of the annulment of the contested decision.
68. It should be noted in that respect that a claim seeking payment by an institution to a staff member of a sum which he considers to be due to him under the CEOS is a ‘dispute of a financial character’ within the meaning of Article 91(1) of the Staff Regulations, but is to be distinguished from actions to establish liability brought by staff members seeking damages against their institution. Under Article 91(1) of the Staff Regulations, the Tribunal has, in such disputes, unlimited jurisdiction which entrusts it with the task of providing a complete solution to those disputes and thus of ruling on all the rights and obligations of the staff member, save for leaving to the institution in question, under the control of the Tribunal, the implementation of such part of the judgment and under such precise conditions as the Tribunal shall determine (see, to that effect, judgment of 18 December 2007 in Case C-135/06 P Weißenfels
v Parliament, paragraphs 65, 67 and 68; judgment of the Civil Service Tribunal of the European Union of 2 July 2009 in Case F-49/08 Giannini
v Commission, paragraphs 39 to 42).
69. That having been explained, it should also be noted that the annulment of a measure by the courts has the effect of retroactively eliminating that measure from the legal system, and that where the measure annulled has already been carried out, the abolition of its effects means that the applicant must be restored to the legal position he was in before it was adopted (judgment of the Civil Service Tribunal of the European Union of 26 October 2006 in Case F-1/05 Landgren
v ETF, paragraph 92).
70. In the present case, it is clear that, following the amendment of 26 March 2008, the applicant was employed under a contract for an indefinite period by the effect of the first paragraph of Article 8 of the CEOS alone, and that in the absence of a period of notice as required by Article 47(c)(i) of the CEOS her employment did not end on 31 March 2009.
71. That being so, the Parliament must be ordered to pay the applicant the difference between (i) the amount of the remuneration which she would have earned if she had continued to be employed by the Parliament and (ii) the amount of the remuneration, fees, unemployment benefit or any other allowance in lieu which she has in fact received since 1 April 2009 in place of the remuneration which she was receiving at the Parliament.
The sixth, seventh and eighth heads of claim seeking the award of damages and interest
72. In her sixth, seventh and eighth heads of claim the applicant asks the Tribunal to order the Parliament to pay her damages and interest on account of the Parliament’s wrongful conduct, in particular the wrongful termination of her contract.
73. Since those claims were, however, brought as an alternative to the order for the Parliament to pay the remuneration due to the applicant since she left her post, and since the Tribunal grants that claim, there is no need to adjudicate on those heads of claim.
Costs
74. Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title II 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. Under Article 87(2), if equity so requires, the Tribunal may decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.
75.
It follows from the grounds of this judgment that the applicant is successful in her main pleadings, that is to say, she has obtained annulment of the contested decision and an order for the Parliament to pay her arrears of salary. In addition, in her pleadings, the applicant has expressly asked for the Parliament to be ordered to pay the costs. Since the circumstances of this case do not justify the application of the provisions of Article 87(2) of the Rules of Procedure, the Parliament must be ordered to pay, as well as its own costs, those incurred by the applicant in the present proceedings.
Operative part
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
hereby:
1.
Annuls the decision contained in the letter of 12 February 2009 by which the Secretary-General of the European Parliament informed Ms Scheefer, first, that it had not been possible to find any legally acceptable solution to enable her to continue working within the medical service at Luxembourg (Luxembourg) and, secondly, that her temporary staff contract would end on 31 March 2009.
2. Orders the European Parliament to pay to Ms Scheefer the difference between (i) the amount of the remuneration which she would have earned if she had continued to be employed by the Parliament and (ii) the amount of the remuneration, fees, unemployment benefit or any other allowance in lieu which she has in fact received since 1 April 2009 in place of the remuneration which she was receiving as a member of the temporary staff.
3. Dismisses the action as to the remainder.
4. Orders the European Parliament to bear its own costs and to pay those of Ms Scheefer.