JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

11 July 2012

Case F‑85/10

AI

v

Court of Justice of the European Union

(Civil service — Members of the temporary staff — Internal competition — Elimination from the competition in consequence of the result obtained in the first written test — Re-examination — Equal treatment — Reclassification of a fixed-term employment contract as a contract for an indefinite period — Non-renewal of a fixed term contract as a member of the temporary staff — Action for annulment — Action for damages)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which AI seeks, first, annulment of the decision by which the selection board in internal competition on the basis of tests No CJ 12/09, held by the Court, did not award her the minimum 20 marks required for the first compulsory written test, and, second, annulment of the Court’s decision not to renew her temporary staff contract, as well as an order that the Court pay her damages for the material and non-material harm which she claims to have suffered.

Held: The action is dismissed. AI is to bear her own costs and is ordered to pay those incurred by the Court.

Summary

1. Officials — Competitions — Selection board — Composition — Sufficient stability to ensure consistent marking of candidates

(Staff Regulations, Annex III, Art. 3)

2. Officials — Competitions — Principle of impartiality of the selection board — Acquaintanceship between a member of the selection board and a candidate — Risk of conflict of interests where there are professional relations between a member of the selection board and a candidate — None

(Staff Regulations, Art. 11a)

3. Officials — Competitions — Selection board — Rejection of application — Obligation to state reasons — Scope — Observance of the secrecy of the selection board’s proceedings

(Staff Regulations, Annex III, Art. 6)

4. Officials — Competitions — Assessment of candidates’ abilities — Selection board’s discretion — Judicial review — Limits

(Staff Regulations, Annex III)

5. Officials — Members of the temporary staff — Members of the temporary staff coming under Article 2(b) of the Conditions of Employment of Other Servants — Renewal after the first extension of the contract for a fixed duration — Reclassification of the fixed-term contract as a contract of indefinite duration — Not included

(Conditions of Employment of Other Servants, Arts 2(b) and 8, second para.)

6. Officials — Conditions of Employment of Other Servants — Measures to prevent abuse of successive fixed-term contracts — Maximum total duration of successive fixed-term employment relationships or contracts — Penalising of abuse of such contracts — No undermining of the purpose and minimum requirements of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP

(Art. 288, second para., TFEU; Conditions of Employment of Other Servants, Arts 2(b) and 8, second para.; Council Directive 1999/70, Annex, clause 5(1))

7. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Judicial review — Limits — Manifest error of assessment — Definition

(Conditions of Employment of other Servants, Arts 8 and 47(1)(b))

8. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the interests of officials — Taking into account of the interests of the staff member concerned

(Conditions of Employment of Other Servants, Art. 47)

9. Social policy — Male and female workers — Access to employment and working conditions — Equal treatment — Directive 2006/54 — Protection against retaliatory measures — Scope

(European Parliament and Council Directive 2006/54, Arts 1 and 24)

1. The presence of an alternate member must not be taken into account for assessing the stability of the composition of a competition selection board if all the full members of the board attended every test. Stability in the composition of a selection board is ensured where the correction of the written tests and the conduct of the oral tests, as well as the deliberations relating to those tests, were carried out by all the full members of the board.

(see para. 59)

See:

7 February 2002, T‑193/00 Felix v Commission, para. 37

2. An acquaintanceship between a member of a selection board and a candidate is not in itself sufficient to prove that that member has a ‘personal interest … and, in particular, family and financial interests’ within the meaning of Article 11a of the Staff Regulations, capable as such of calling his impartiality into question. The fact that a member of the selection board is personally acquainted with one of the candidates does not necessarily mean that that member will be prejudiced in favour of that candidate’s performance.

In that respect, the involvement of a member of a competition selection board in assessing a candidate who works or has worked in the same unit or directorate as that member does not in itself mean that his independence and therefore his impartiality will be undermined.

(see paras 80, 81)

See:

12 March 2008, T‑100/04 Giannini v Commission, para. 223

30 April 2008, F‑16/07 Dragoman v Commission, para. 41

3. The requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review. As far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must, however, be reconciled with observance of the secrecy surrounding the proceedings of selection boards pursuant to Article 6 of Annex III to the Staff Regulations. Observance of this secrecy precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates. That being so, the obligation to state the reasons on which decisions of a selection board in a competition are based must take account of the nature of the proceedings concerned, which involve as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates. The second stage of the selection board’s proceedings is primarily comparative in character and is accordingly covered by the secrecy inherent in those proceedings. The criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates’ respective merits. Those criteria are therefore covered by the secrecy of the proceedings in the same way as the selection board’s assessments. The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. The marks are the expression of the value judgments made concerning each of them. Having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board’s decisions are based. Such a statement of reasons is not prejudicial to the rights of the candidates.

Furthermore, in view of the broad discretion enjoyed by a competition selection board in evaluating the results of the tests in a competition, the board cannot be required, in giving the reasons for a candidate’s failure of a test, to identify candidates’ answers which were considered unsatisfactory or to explain why they were considered unsatisfactory. Such detailed reasons are not necessary to enable the Union judicature to exercise its power of review and, consequently, to enable the candidate to determine whether or not it is appropriate to lodge a complaint or, if need be, to bring an action.

(see paras 91-93, 115)

See:

4 July 1996, C‑254/95 P Parliament v Innamorati, para. 29

14 July 1995, T‑291/94 Pimley-Smith v Commission, paras 63 and 64; 27 March 2003, T‑33/00 Martínez Páramo and Others v Commission, para. 48; 19 February 2004, T‑19/03 Konstantopoulou v Court of Justice, paras 33 and 34

Dragoman v Commission, para. 63 and the case-law cited therein

4. A selection board’s assessment of candidates’ knowledge and ability constitutes a value judgement on each candidate’s performance in the test and falls within the wide margin of discretion accorded to the board. The Courts have no jurisdiction to review it unless the rules which govern the proceedings of the selection board have clearly been infringed. It is not for the Tribunal to substitute its own assessment for that of the selection board.

(see para. 109)

See:

Giannini v Commission, para. 275

5. Even if the second and third extensions of a temporary staff contract, within the meaning of Article 2(b) of the Conditions of Employment of Other Servants, infringed the second paragraph of Article 8 of the Conditions of Employment, that infringement would not result in the fixed-term contract being converted into a contract for an indefinite period. It is clear from the wording of the second paragraph of Article 8 of the Conditions of Employment of Other Servants that a contract of employment as a member of the temporary staff, as provided for in Article 2(b) of the Conditions of Employment, has to be temporary and that no provision is made for the conversion of such a fixed-term contract into a contract for an indefinite period.

(see para. 130)

6. As regards the framework agreement on fixed-term work, set out in the Annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, and in particular point 1 of Clause 5 of that agreement, the Union legislature, in exercising its legislative power to adopt the Conditions of Employment of Other Servants, and the authority empowered to conclude contracts of employment, in exercising its broad margin of discretion within the framework laid down by the provisions of the Conditions of Employment of Other Servants, must, when adopting or implementing rules which govern the relations between the European Union and its staff, prevent any abuse of rights arising from the use of successive fixed-term employment contracts.

Although the legislature must effectively prevent the misuse by the authority empowered to conclude contracts of employment of successive fixed-term employment contracts, the fact remains that, by virtue of the second paragraph of Article 288 TFEU, it has total freedom to choose the most appropriate form and methods in that respect. Consequently, fulfilment of that obligation does not require provision to be made for the conversion of fixed-term employment contracts into contracts of indefinite duration, at least where the rules in question contain measures intended effectively to prevent the abuse of successive fixed-term contracts and measures duly to punish that abuse and nullify the adverse consequences for the person concerned.

In so far as it provides for one of the measures listed in Clause 5 of the framework agreement, and given that the absence of other measures does not prevent the punishment of any abuse, the second paragraph of Article 8 of the Conditions of Employment of Other Servants does not undermine the purposes and the minimum requirements of the framework agreement.

(see paras 136-140)

See:

21 September 2011, T‑325/09 P Adjemian and Others v Commission, paras 58, 61 and 66

7. The administration has a wide discretion to renew contracts and to organise its departments to suit the tasks entrusted to it and to assign the staff available to it in the light of such tasks on condition, however, that the staff are assigned in the interest of the service and in conformity with the principle of the equivalence of posts. Consequently, review by the Courts must be limited to ascertaining whether, regard being had to the factors and reasons that led the administration to its assessment, it remained within unimpeachable limits and did not manifestly misuse its power.

An error may be classified as manifest only where it is easily recognisable and can be readily detected, in the light of the criteria to which the legislature intended the administration’s exercise of its discretion to be subject. Consequently, in order to establish that the administration committed a manifest error in assessing the facts such as to justify the annulment of a decision taken on the basis of that assessment, the evidence, which it is for the applicant to adduce, must be sufficient to make the findings of the administration implausible.

(see paras 152, 153)

See:

12 December 1996, T‑380/94 AIUFFASS and AKT v Commission, para. 59; 12 February 2008, T‑289/03 BUPA and Others v Commission, para. 221

24 March 2011, F‑104/09 Canga Fano v Council, para. 35, on appeal before the General Court of the European Union, Case T‑281/11 P; 13 June 2012, F‑105/11 Davids v Commission, para. 38 and the case-law cited therein

8. The duty of the administration to have regard for the interests of its staff, together with the principle of proper administration, implies in particular that when the competent authority takes a decision concerning the situation of an official or other staff member, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned.

In that regard, the administration is not obliged to offer to re-assign a member of the temporary staff whose professional performance is deemed unsatisfactory. A fortiori, the administration is not obliged to renew the contract of a member of the temporary staff whose professional performance has been deemed unsatisfactory.

While the duty to have regard for the interests of staff implies that, when assessing the interests of the service, the competent authority must take into consideration all the factors which may affect its decision and, in particular, the interests of the staff member concerned, the taking into consideration of the personal interests of that staff member should not extend so far as to prevent the competent authority from not renewing a fixed-term contract despite the opposition of that staff member, if the interests of the service demand it.

(see paras 166-168)

See:

6 February 2003, T‑7/01 Pyres v Commission, paras 51 and 87

27 November 2008, F‑35/07 Klug v EMEA, paras 67 and 79 and the case‑law cited therein; 7 July 2010, F‑116/07, F‑13/08 and F‑31/08 Tomas v Parliament, para. 166; 4 February 2011, F‑54/10 Verheyden v Commission, para. 37

9. Article 24 of Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted in the light of the purpose of the directive, which, according to Article 1, is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. Consequently, its aim is to provide protection against retaliatory measures taken by employers in reaction to complaints or legal proceedings aimed at enforcing compliance with the principle of equal treatment of men and women in matters of employment and occupation.

(see para. 184)