JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)
4 June 2009
Cases F-134/07 and F-8/08
Vahan Adjemian and Others
v
Commission of the European Communities
(Civil service – Contract staff – Duration of contract – Article 88 of the CEOS – Commission’s decision of 28 April 2004 concerning the maximum duration of the recourse to non-permanent staff in the Commission’s
services – Directive 1999/70 – Applicability to the institutions)
Application: brought under Articles 236 EC and 152 EA, in which, in Case F‑134/07, Mr Adjemian and 180 other members of the Commission’s
contract staff seek: a declaration that the Commission’s decisions, including that of 28 April 2004, concerning the maximum
duration of the recourse to non-permanent staff in its services are unlawful, and, in so far as is necessary, a declaration
that Article 88 of the Conditions of Employment of Other Servants of the European Communities is also unlawful in that it
limits the duration of the contracts for contract staff; annulment of the Commission’s decisions of 22 August, 5 September,
30 October and 28 November 2007 essentially refusing to conclude contracts with or to renew the engagement of the applicants
for an indefinite period; annulment, in so far as is necessary, of the Commission’s decisions laying down the respective conditions
of employment of the applicants in so far as their engagement or the extension thereof is limited to a fixed period; in Case
F‑8/08, Ms Renier seeks annulment of the Commission’s decision of 11 April 2007 limiting the duration of her contract as a
member of the contract staff to the period between 16 April 2007 and 15 December 2008.
Held: Cases F‑134/07 Adjemian and Others v Commission and F‑8/08 Renier v Commission are joined for the purposes of the judgment. The applications are dismissed. Mr Adjemian, Ms Adorno, Ms Baranzini and the
178 other applicants whose names are given in Annexes I, II and III to this judgment are to pay all the costs relating to
Case F‑134/07, that is to say, their own costs and those of the Commission in that case. Ms Renier is to pay all the costs
relating to Case F‑8/08, that is to say, her own costs and those of the Commission in that case. The Council of the European
Union, which intervened in support of the Commission in both cases, is to bear its own costs.
Summary
1.      Procedure – Application initiating proceedings – Formal requirements – Identification of the subject-matter of the dispute
– Brief summary of the pleas in law on which the application is based
(Statute of the Court of Justice, Art. 21, first para., and Annex I, Art. 7(3); Rules of Procedure of the Civil Service Tribunal,
Art. 35(1)(e))
2.      Acts of the institutions – Directives – Direct imposition of obligations on the Community institutions in their relations
with their staff – Not included – Possibility of relying on certain provisions
(Arts 10 EC and 249 EC)
3.      Social policy – Framework agreement between ETUC, UNICE and CEEP on fixed-term work – Directive 1999/70 – Stability of employment
(Charter of Fundamental Rights, Art. 30; Council Directive 1999/70)
4.      Officials – Conditions of Employment of Other Servants – Auxiliary member of the contract staff
(Conditions of Employment of Other Servants, Art. 88)
5.      Acts of the institutions – Statement of reasons – Obligation – Scope – Creation of the new category of contract staff
(Art. 253 EC; Conditions of Employment of Other Servants, Arts 3a and 3b; Council Regulation No 723/2004)
1.      Pursuant to Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal, the application must contain a statement
of the grounds and factual and legal arguments on which it is based. That statement must be sufficiently clear and precise
to enable the defendant to prepare its defence and the Tribunal to rule on the action without any other information, if necessary.
In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible,
that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself.
That is particularly true since, according to Article 7(3) of Annex I to the Statute of the Court of Justice, the written
stage of the proceedings before the Civil Service Tribunal involves, in principle, only one exchange of written pleadings,
unless the Tribunal decides otherwise. That latter feature of the proceedings before the Civil Service Tribunal explains why,
unlike proceedings before the Court of First Instance or the Court of Justice under the first paragraph of Article 21 of the
Statute of the Court of Justice, the statement of pleas in law and arguments in the application may not be in summary form.
(see para. 76)
See:
T-85/92 De Hoe v Commission [1993] ECR II‑523, para. 20
F‑1/08 Nijs v Court of Auditors [2008] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 24 and 25, on appeal before the Court of First Instance, Case T‑376/08 P
2.      Directives addressed to the Member States and not to the Community institutions cannot be treated, as such, as imposing any
obligations on those institutions in their relations with their staff. However, that consideration does not in itself totally
preclude a directive being relied upon in relations between institutions and their officials or servants. The provisions of
a directive may, in the first place, be indirectly applicable to an institution if they constitute the expression of a general
principle of Community law that it must then apply as such. Secondly, a directive may also be binding on an institution where
the latter, within the scope of its organisational autonomy and within the limits of the Staff Regulations, has sought to
carry out a specific obligation laid down by a directive or in the specific instance where an internal measure of general
application itself expressly refers to measures laid down by the Community legislature pursuant to the Treaties. Thirdly,
the institutions are required, in accordance with their duty to cooperate in good faith under the second paragraph of Article
10 EC, to take account, in their actions as employers, of legislative provisions adopted at Community level.
(see paras 86, 90-93)
See:
C-25/02 Rinke [2003] ECR I‑8349, paras 24 and 25 to 28
T-495/04 Belfass v Council [2008] ECR II‑781, para. 43
F‑65/07 Aayhan and Others v Parliament [2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 116 and 118
3.      While stable employment is regarded as a major element in the protection of workers, it does not constitute a general principle
of law in the light of which the lawfulness of a measure adopted by an institution may be assessed. In particular, it by no
means follows from Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP
or from that framework agreement itself that stable employment has been made a binding rule of law. Moreover, recitals 6 and
7 of the directive, as well as the first paragraph of the preamble to and recital 5 of the framework agreement highlight the
need to achieve a balance between flexibility and security. Furthermore, the framework agreement does not lay down a general
obligation, following a certain number of renewals of fixed-term contracts or completion of a certain period of work, to provide
for the conversion of those contracts into indefinite contracts.
Stable employment is, however, an aim pursued by the signatories to the framework agreement, clause 1(b) of which states that
its purpose is to ‘establish a framework to prevent abuse arising from the use of successive fixed-term contracts or relationships’.
On the other hand, while Article 30 of the Charter of Fundamental Rights provides that ‘every worker has the right to protection
against unjustified dismissal’, that article does not censure the use of successive fixed-term contracts. Moreover, the end
of a fixed-term contract simply because it has reached its expiry does not constitute dismissal in the proper sense for which
particular reasons must be given as regards ability, conduct or the institution’s operational needs.
(see paras 99, 100, 104)
See:
C-144/04 Mangold [2005] ECR I‑9981, para. 64; C-212/04 Adeneler and Others [2006] ECR I‑6057, para. 91; C-53/04 Marrosu and Sardino [2006] ECR I‑7213, para. 47; C-268/06 Impact [2008] ECR I‑2483, para. 87
Aayhan and Others v Parliament, para. 115
4.      Every post as an auxiliary member of the contract staff must meet temporary or intermittent needs. In an administration with
a large number of staff, such needs inevitably recur as a result, in particular, of officials’ unavailability, increased workloads
at certain particular times, or the need, for each directorate-general, occasionally to engage persons with specific qualifications
or knowledge. Those circumstances constitute reasons justifying both the fixed term of the contracts of members of the auxiliary
staff and their renewal as and when those needs arise.
(see para. 132)
See:
C-150/03 P Hectors v Parliament [2004] ECR I‑8691, Opinion of Advocate General Ruiz-Jarabo Colomer, ECR I‑8694, point 25
5.      Given that, in the case of measures of general application, the statement of reasons may be confined to indicating the general
situation which led to the adoption of the measure, on the one hand, and the general objectives which it is intended to achieve,
on the other, and that if such a measure clearly discloses the essential objective pursued by the institution, it would be
excessive to require a specific statement of reasons for the various technical choices made, the statement of reasons for
Regulation No 733/2004 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants, albeit
succinct, is adequate as regards the objective pursued by the creation of the new category of contract staff within the meaning
of Articles 3a and 3b of the Conditions of Employment.
(see paras 139, 141)
See:
F‑43/05 Chassagne v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 105 and 106 and the case-law cited therein