JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

15 September 2011





Case F-6/10





Yannick Munch

v

Office for Harmonisation in the Internal Market

(Trade Marks and Designs) (OHIM)

(Civil service – Members of the temporary staff – Clause terminating the contract if the member of staff is not included on the reserve list of a competition – Open competitions OHIM/AD/02/07 and OHIM/AST/02/07 – Admissibility – Respective powers of EPSO and the selection board for the competition – Article 8 of the Conditions of employment – Renewal of fixed-term temporary staff contracts)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Munch seeks, in particular, annulment of OHIM’s decision of 12 March 2009 terminating his temporary staff contract with effect from 15 October 2009, and an order that OHIM pay him damages.

Held: The decision contained in OHIM’s letter of 12 March 2009 terminating the applicant’s contract of employment with effect from 15 October 2009 is annulled. OHIM is ordered to pay the applicant the difference between the amount of the remuneration to which he would have been entitled if had continued to be employed with OHIM and the remuneration, unemployment benefit and any other allowance in lieu thereof which he may actually have received elsewhere since 15 October 2009. OHIM is ordered to pay the applicant EUR 2 000 by way of damages. OHIM is ordered, in addition to bearing its own costs, to pay the applicant’s costs.

Summary

1. Officials – Actions – Act adversely affecting an official – Concept – Clause in the contract of a member of the temporary staff making the continuation of the employment relationship conditional on the staff member’s inclusion on the reserve list of an open competition – Included

(Staff Regulations, Art. 90(2))

2. Officials – Actions – Act adversely affecting an official – Concept – Letter sent to a member of the temporary staff reminding him of the date of expiry of his contract – Not included – Amendment of a contract – Decision not to renew a contract – Included

(Staff Regulations, Art. 90(2))

3. Officials – Actions – Act adversely affecting an official – Concept – Clause in the contract of a member of the temporary staff making the continuation of the employment relationship conditional on the staff member’s inclusion on the reserve list of an open competition – Decision of the administration establishing that the staff member has not been included on that list and implementing the termination clause – Included

(Staff Regulations, Art. 90(2))

4. Officials – Members of the temporary staff – Contracts of indeterminate duration with a termination clause applicable only where the staff member concerned is not included on a reserve list drawn up following an open competition

5. Procedure – Application initiating proceedings – Formal requirements

(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))

6. European Personnel Selection Office (EPSO) – Conduct of competitions for the recruitment of officials – Role of EPSO – Assistance to the selection board – Subsidiary role by comparison with that of the selection board

(Staff Regulations, Annex III, Arts 1, 4 and 5)

7. Officials – Members of the temporary staff – Recruitment – Amendment of a fixed-term contract to a contract of indeterminate duration and insertion of a termination clause in the event that the staff member is not included on the reserve list of an open competition – Amendment to be analysed as the renewal of a fixed-term contract

(Conditions of Employment of Other Servants, Arts 2(a), (b) and (d) and 8, paras 1 and 2; Council Directive 1999/70, Annex, Clause 5, para. 1)

8. Officials – Actions – Unlimited jurisdiction – Disputes of a financial character within the meaning of Article 91(1) of the Staff Regulations – Concept

(Staff Regulations, Art. 91(1))

1. Both the prior administrative complaint and the action before the Tribunal must, under Article 90(2) of the Staff Regulations, be directed against an act adversely affecting the applicant which produces legal effects which are binding on, and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position.

In that regard, the insertion in a contract as a member of the temporary staff of a termination clause under which the continuation of the employment relationship is conditional on the name of the staff member concerned being included on the reserve list of an open competition organised by the European Personnel Selection Office is, as such, capable of directly and immediately affecting the interests of that staff member by bringing about a distinct change in his legal position owing, at the very least, to the greater or lesser degree of uncertainty borne by the staff member in question as to whether he will appear on the reserve list drawn up following that competition.

(see paras 32, 33)

See:

13 July 2000, T-97/99 Hendrickx v Cedefop, para. 37

2 July 2009, F-19/08 Bennett and Others v OHIM, para. 65 and the case-law cited

2. An act which contains no new factor by reference to a previous act merely confirms the previous act and for that reason cannot have the effect of causing time to run anew for the purpose of bringing an action. In particular, a letter which merely reminds a member of staff about the provisions of his contract relating to the date of expiry of the contract and containing no new factor by reference to those provisions is not an act adversely affecting that staff member.

Conversely, any amendment of a contract constitutes an act adversely affecting the person concerned, but only with respect to the provisions which have been amended, unless those amendments completely alter the general structure of the contract. Likewise, where the contract is renewable, the decision taken by the administration not to renew it constitutes an act adversely affecting the person concerned, distinct from the contract in question and capable of forming the subject-matter of a complaint and an action within the periods prescribed in the Staff Regulations. Such a decision, which is adopted following a reconsideration of the interests of the service and of the situation of the staff member concerned, contains a new factor by reference to the initial contract and cannot be regarded as merely confirming that contract.

(see paras 50-53)

See:

10 December 1980, 23/80 Grasselli v Commission, para. 18; 9 July 1987, 329/85 Castagnoli v Commission, paras 10 and 11; 14 September 2006, C-417/05 P Commission v Fernández Gómez, paras 45 to 47

2 February 2001, T-97/00 Vakalopoulou v Commission, para. 14; 1 April 2003, T-11/01 Mascetti v Commission, para. 41

15 April 2011, F-72/09 and F-17/10 Daake v OHIM, para. 36

3. A letter by which the administration establishes the existence of an event or of a new situation and implements the consequences provided for in a rule or a contractual provision with regard to the persons concerned constitutes an act adversely affecting those persons, since it alters the legal position of those to whom it is addressed.

That is the case of a decision of the administration establishing that the name of a member of the temporary staff has not been included on the reserve list of a specific open competition and implementing the termination clause in his contract, which entails the termination of the contract if a given event should occur, namely the drawing-up of the reserve list of the competition referred to in that clause, the date of which was necessarily uncertain at the time when the contract was made. That decision altering the legal position of the member of staff constitutes an act adversely affecting him, capable of forming the basis of a complaint and, where necessary, an action.

As the inclusion of the termination clause forms part of a complex operation, the staff member concerned must be able to challenge indirectly the legality of that clause, even if it is of individual scope, when the administration adopts the decision implementing it at the final stage of the operation.

(see paras 58, 59, 95)

See:

Daake v OHIM, paragraph 34 et seq.

4. In offering a number of members of staff who had successfully participated in internal selection procedures a temporary staff contract of indefinite duration, containing a termination clause applicable only where the members of staff concerned are not included on a reserve list drawn up following an open competition, thus giving a clear commitment to maintaining the persons concerned permanently within the institution provided that they appear on such a reserve list, and then limiting the number of successful candidates on the lists of suitable candidates drawn up following two competitions – open competitions, moreover – to the precise number of posts to be filled, the institution radically and objectively reduces the opportunities for the members of staff concerned, taken together, to avoid the application of the termination clause and, accordingly, renders the scope of its contractual commitments towards its temporary staff meaningless in part.

Consequently, the termination clause cannot be applied, following an open competition open to all nationals of the Member States, where the list of suitable candidates is reduced to one name or a number so small that the possibility of the members of staff concerned avoiding its application was, unreasonably, too slight, in the light of the commitment given by the institution to its temporary staff. In other words, unless the meaning of the contractual commitment given by the administration is distorted, such a list of suitable candidates does not fall within the terms of the termination clause.

(see paras 78, 79)

5. Pursuant to Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal, the application must state the pleas in law and the arguments of fact and law relied on. Those particulars must be sufficiently clear and precise to enable the defendant to prepare a defence and for the Tribunal to rule on the action, if necessary without any further information. An application need not necessarily be long and detailed in order to be admissible. It is sufficient if the essential particulars of the ground of action are apparent, at least in a succinct, but consistent and comprehensible manner, from the wording of the application itself. That is all the more so since, according to Article 7(3) of Annex I to the Statute of the Court of Justice, the written stage of the procedure before the Tribunal is to comprise, in principle, only a single exchange of pleadings, unless the Tribunal decides otherwise, which explains why, unlike the situation which, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice, is applicable before the General Court of the European Union or the Court of Justice, the statement of the pleas in law and arguments in the application cannot be brief.

(see paras 91, 92)

See:

12 March 2009, F-4/08 Hambura v Parliament, paras 49 and 50 and the case-law cited

6. It is apparent from Annex III to the Staff Regulations that the rules on the competition procedure are based on the principle of the sharing of powers between the appointing authority and the competition selection board. That diarchy created by the Staff Regulations, while being a demonstration of the self-limitation of administrative power, reveals the intention of the legislature, in order to ensure the protection of the transparency of the selection procedure for staff of the European Union, not to reserve the sensitive task of selecting the staff in question exclusively to the administration, but also to involve, through the selection board (in which the administration is also represented), persons outside the administrative hierarchy and, in particular, staff representatives. Under this power-sharing arrangement, it is for the appointing authority, as may be seen, in particular, from the first subparagraph of Article 1 of Annex III to the Staff Regulations and Article 4 of that annex, first, to draw up the notice of competition, after consulting the Joint Committee and, second, to draw up the list of candidates who satisfy the first three conditions for appointment as an official set out in Article 28 of the Staff Regulations. Once that list is sent by the appointing authority to the chairman of the selection board, it is subsequently for the selection board itself, as indicated in Article 5 of Annex III to the Staff Regulations, first, to draw up the list of candidates who meet the requirements set out in the notice of competition; second, to proceed with the tests; and, third, to draw up a list of suitable candidates and send it to the appointing authority.

Furthermore, although the tasks assigned to the European Personnel Selection Office (EPSO) are such as to make that body an important actor in the determination and implementation of EU policy on staff selection, its role as regards the conduct of recruitment competitions for officials, on the other hand, while significant to the extent that EPSO assists the selection board, necessarily remains subsidiary to the role of the selection board, which EPSO, moreover, cannot replace. In fact, both the many different tasks (essentially advising and assisting the institutions) entrusted to EPSO and its composition (an Advisory Committee composed exclusively of members nominated by the institutions, the three staff representatives having only observer status) preclude any possible comparison of EPSO to a selection board, the composition of which must comply with a rule of parity, and which is set up specifically for each competition and has the precisely defined task of carrying out the competition in question.

Accordingly, a decision whereby EPSO, which has no competence to do so, excluded a candidate from the second stage of the operations in a general competition must be regarded as unlawful. It was on the basis of the candidate’s non-inclusion on the reserve list for that competition, and therefore necessarily on the basis of the decision excluding the candidate from the second stage of the competition, that the decision of the administration implementing the termination clause in his temporary staff contract was taken. Consequently, that decision must also be regarded as unlawful.

(see paras 99-104)

See:

15 June 2010, F-35/08 Pachitis v Commission, paras 50 to 52 and 58

7. The first and second paragraphs of Article 8 of the Conditions of Employment of Other Servants are specifically intended to limit the use of successive temporary staff contracts. First, a temporary staff contract, within the meaning of Article 2(a) of those Conditions of Employment, can be renewed only once for a fixed period, any further renewal of that contract being for an indefinite period. Second, a temporary staff contract within the meaning of Article 2(b) or (d) of the Conditions of Employment, the duration of which cannot exceed four years, can be renewed only once, for a maximum period of two years, provided that the possibility of renewal has been provided for in the initial contract, and upon expiry of his contract the staff member concerned can continue to be employed only if he has been appointed as an official.

The fact that the temporary staff contract contained a termination clause, allowing the administration to terminate the contract where the staff member concerned has not been successful in a competition the organisation of which had been announced within a certain period, does not, notwithstanding the wording of the contract, enable it to be described as a contract for an indefinite period, which is characterised by the permanency of the post. The duration of a contract, as is apparent from point 1 of clause 3 of the framework agreement on fixed-term work annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, may be determined not only by ‘reaching a specific date’, but also by ‘completing a specific task or the occurrence of a specific event’, such as the drawing-up of a reserve list for a specific competition, to which a number of possible consequences are attached, according to the wording of the staff member’s contract. Thus, where his name is not included on the reserve list, it follows from the wording of the contract that the contract will be terminated; the same would normally apply where the staff member was successful, since he would then be offered a post as an official, it being understood that, should the offer be refused, the contract would also be terminated, in accordance with the wording thereof.

Accordingly, a decision of the administration implementing the termination clause in the temporary staff members’ contract of employment in breach of the first paragraph of Article 8 of the Conditions of Employment must be annulled. After a first renewal, the temporary staff contract, within the meaning of Article 2(a) of the Conditions of Employment, between the administration and the staff member was again renewed for a fixed period, contrary to the first paragraph of Article 8 of the Conditions of Employment.

(see paras 110, 113-116)

See:

26 October 2006, F-1/05 Landgren v ETF, para. 66

8. A claim that the Office for Harmonisation in the Internal Market should be ordered to pay one of its staff a sum which he considers is payable to him under the Conditions of Employment comes within the concept of disputes of a financial character within the meaning of Article 91(1) of the Staff Regulations. Under that provision the EU Courts have unlimited jurisdiction in those disputes, which entrusts them with the task of providing a complete solution to the disputes brought before them, that is to say, ruling on all the rights and obligations of the staff member, save for leaving to the institution in question, subject to review by the Courts, the implementation of such part of the judgment and under such precise conditions as they shall determine.

(see para. 125)

See:

18 December 2007, C-135/06 P Weißenfels v Parliament, paras 65, 67 and 68

2 July 2009, F-49/08 Giannini v Commission, paras 39 to 42