JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

16 December 2010

Case T-143/09 P

European Commission

v

Nicole Petrilli

(Appeal — Civil service — Auxiliary contract staff — Fixed-term contract — Rules on the maximum duration for employing non-permanent staff in the Commission services — Decision to refuse renewal of the contract)

Appeal: brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 January 2009 in Case F-98/07 Petrilli v Commission [2009] ECR-SC I-A-1-13 and II-A-1-41, seeking to have that judgment set aside.

Held: The appeal is dismissed. The European Commission is ordered to bear its own costs and to pay those incurred by Mrs Nicole Petrilli in these proceedings.

Summary

1. Officials — Conditions of Employment of Other Servants — Member of the auxiliary contract staff — Period of employment — Interpretation

(Conditions of Employment of Other Servants, Art. 88, first para., (b))

2. Officials — Conditions of Employment of Other Servants — Member of the auxiliary contract staff — Period of employment — Institution’s discretion

(Conditions of Employment of Other Servants, Art. 88, first para., (b))

3. Officials — Non-contractual liability of the institutions — Conditions

1. The expression ‘actual period of employment within an institution’ used in Article 88, first para., (b), of the Conditions of Employment of Other Servants must be interpreted as meaning that, for the purposes of calculating the maximum permitted period of employment, account may be taken only of the aggregate period for which the person concerned has been employed as a member of the contract staff for auxiliary tasks within the meaning of Article 3b of those Conditions of Employment, excluding any other employment he may have had as a non-permanent member of staff.

(see para. 33)

2. Article 88, first para., (b), of the Conditions of Employment of Other Servants, under which the actual period of employment as a member of the contract staff for auxiliary tasks within the meaning of Article 3b of those Conditions of Employment may not exceed three years, does not create a right for the person concerned to be employed for that maximum period, taking account of the institution’s contractual freedom and power to conclude or renew such contracts for a shorter period than the maximum allowed, in accordance with the wide discretion which the institution enjoys to organise its departments to suit the responsibilities entrusted to it and to assign its staff having regard to those responsibilities, provided, however, that that assignment is in the interests of the service.

As a general rule, the institution enjoys that freedom not just in individual cases, but also within the framework of a general policy established by an internal decision of general application, such as general implementing provisions, by which it imposes limits on the exercise of its discretion. However, such an internal decision must not have the effect that the institution, first, entirely waives the power conferred on it by Article 88 of the Conditions of Employment of Other Servants to conclude or renew, depending on the circumstances, a contract of a member of the contract staff for auxiliary tasks within the meaning of Article 3b of those Conditions of Employment up to the maximum period of three years, or, second, fails to comply with general legal principles such as the principles of equal treatment and the protection of legitimate expectations.

In the light of those principles, the authority empowered to conclude contracts cannot waive the discretion conferred on it by Article 88 of the Conditions of Employment of Other Servants by automatically applying the ceiling of six years laid down in Article 3(1) of the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services — that is to say, without considering the application file of a person eligible to be employed as a member of the auxiliary contract staff and the interest of the service in employing that person — in order to justify limiting his employment to a shorter period than that allowed by Article 88 of the Conditions of Employment of Other Servants. In thus waiving its discretion, the authority empowered to conclude contracts would infringe its duty to have regard for the welfare of its staff and the principle of equal treatment, which require the institution to examine each application file carefully, impartially and in full in the light of the merits and abilities of the candidate concerned and the requirements of the post to be filled.

Where the person concerned has already accumulated periods of service as a non-permanent member of staff exceeding three years out of a twelve-year period, the automatic application of the six-year rule has the effect of restricting from the outset the exercise by the authority empowered to conclude contracts of its discretion under Article 88, first para., (b), of the Conditions of Employment of Other Servants to assess whether the maximum period of three years has been exhausted, given that such a correct application is clearly prohibited by Article 3(1) of the Commission Decision of 28 April 2004 read in conjunction with paragraph II of the Annex to that decision and recital 4, which states that there can be no derogation in that respect. Consequently, in so far as Article 3(1) of that decision infringes the higher rules of law referred to, the six-year rule is unlawful and must not be applied.

(see paras 34-36)

See: C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, para. 211; T-331/00 and T-115/01 Bories and Others v Commission [2003] ECR-SC I-A-309 and II-1479, para. 72; T-258/03 Mausolf v Europol [2005] ECR-SC I-A-45 and II-189, para. 25; judgment of 20 September 2007 in T-375/03 Fachvereinigung Mineralfaserindustrie v Commission, not published in the ECR, para. 141; T-160/04 Potamianos v Commission [2008] ECR I-A-2-75 and II-A-2-469, para. 30; T-473/07 P Commission v Berrisford [2009] ECR-SC I-B-1-17 and II-B-1-85, para. 54 and the case-law cited therein; T-404/06 P ETF v Landgren [2009] ECR II-2841, para. 215

3. Proceedings in civil service cases under Article 236 EC and Articles 90 and 91 of the Staff Regulations, including those seeking compensation for damage caused to an official or other member of staff, obey specific and special rules in comparison with those arising from the general principles governing the non-contractual liability of the Union under Article 235 EC and the second paragraph of Article 288 EC. It follows from the Staff Regulations in particular that, unlike any other individual, an official or other member of the Union’s staff is connected to the institution to which he belongs by a legal employment relationship involving a balance of specific reciprocal rights and obligations, which is reflected by the institution’s duty to have regard for the welfare of the person concerned. That balance is essentially intended to preserve the relationship of trust which must exist between the institutions and their officials in order to guarantee to the public that the general interest missions devolved upon the institutions are fulfilled. It follows that, where it acts as an employer, the Union is subject to greater liability, reflected in its obligation to compensate for damage caused to its staff by any unlawful act committed in its capacity as employer.

(see para. 46)

See: C-298/93 P Klinke v Court of Justice [1994] ECR I-3009, para. 38; C-274/99 P Connolly v Commission [2001] ECR I-1611, paras 44-47; T-187/01 Mellone v Commission [2002] ECR-SC I-A-81 and II-389, para. 74; judgment of 14 October 2004 in T-1/02 Polinsky v Court of Justice, not published in the ECR, para. 47; T-57/99 Nardone v Commission [2008] ECR-SC I-A-2-83 and II-A-2-505, para. 162