JUDGMENT OF THE GENERAL COURT

(Appeal Chamber)

21 September 2011





Case T-325/09 P





Vahan Adjemian and Others

v

European Commission

(Appeal — Civil service — Agents — Contract of employment for a fixed period — Refusal to conclude a new contract of employment or to renew a contract of employment for an indefinite period — Framework Agreement on fixed-term work — Directive 1999/70/EC — Article 88 of the CEOS — Commission decision concerning the maximum duration of the recourse to non-permanent staff in the Commission’s services)

Appeal: against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 4 June 2009 in Joined Cases F-134/07 and F-8/08 Adjemian and Others v Commission [2009] ECR-SC I-A-1-149 and II-A-1-841, and seeking that that judgment be set aside.

Held: The judgment of the European Union Civil Service Tribunal (Second Chamber) of 4 June 2009 in Joined Cases F-134/07 and F-8/08 Adjemian and Others v Commission is set aside in so far as it holds that there is no need to adjudicate on the claims directed by the appplicants in Case F-134/07 whose names are set out in the annex against the decisions rejecting their complaints. The appeal is dismissed as to the remainder. The action brought by the applicants in Case F-134/07 whose names are set out in the annex is dismissed, in so far as that action seeks the setting-aside of the decisions rejecting their complaints. Mr Vahan Adjemian and the 175 members of the temporary staff and former members of the temporary staff of the European Commission whose names are set out in the annex are to bear their own costs and those incurred by the Commission and the Council in these proceedings.

Summary

1. Officials — Actions — Action against a decision rejecting a complaint — Admissibility — Obligation to rule on the claims directed against the decision rejecting the complaint — Claims with no independent content or decision purely confirmatory — None

(Staff Regulations, Art. 91(1); Conditions of employment of other servants, Art. 117)

2. Acts of the institutions — Directives — Directive 1999/70 implementing the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Direct imposition of obligations on the Community institutions in their relations with their staff — Not included — Possibility to rely on the above — Scope

(Art. 249 EC)

3. Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent abuse of successive fixed-term contracts — Scope — Relations between the European Communities and their staff

(Council Directive 1999/70, Annex, clause 5(1))

4. Officials — Conditions of employment of other servants — Measures to prevent abuse of successive fixed-term contracts — Prohibition of using a succession of fixed-term employment contracts the object of which is the performance of permanent tasks on a long-term basis — Reclassification of the employment contract to an employment contract of indefinite duration — Lawfulness

(Conditions of employment of other servants)

1. It follows from Articles 90 and 91 of the Staff Regulations that an action brought by a person to whom the Staff Regulations apply against a decision of the appointing authority or against the failure of that authority to take a measure prescribed by the Staff Regulations is admissible only if the person concerned has previously submitted a complaint to the appointing authority and if the complaint has been rejected, at least in part, by express or implied decision. Under Article 117 of the Conditions of employment of other servants, that is also applicable, by analogy, to an action brought by a staff member against a decision of the authority empowered to conclude contracts of employment or against the failure of that authority to take a measure prescribed by those Conditions. The administrative complaint and its rejection, whether express or implied, thus constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted, except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made. An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure, or will even regard it as an act adversely affecting the applicant and replacing the contested measure.

Since, under the system laid down in the Staff Regulations or the Conditions of employment of other servants, the person concerned must submit a complaint against the decision which he is contesting and then appeal against the decision rejecting his complaint, the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations. However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made. That may, in particular, be the case where it finds that the decision rejecting the complaint, in some cases because it is implied, is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second.

(see paras 31-33)

See:

33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 9; 293/87 Vainker v Parliament [1989] ECR 23, paras 7 and 8; 224/87 Koutchoumoff v Commission [1989] ECR 99, para. 7

T-338/00 and T-376/00 Morello v Commission [2002] ECR-SC I-A-301 and II-1457, para. 35; T-258/01 Eveillard v Commission [2004] ECR-SC I-A-167 and II-747, para. 31; T-389/02 Sandini v Court of Justice [2004] ECR-SC I-A-295 and II-1339, para. 49; T-375/02 Cavallaro v Commission [2005] ECR-SC I-A-151 and II-673, paras 63 to 66; T-281/04 Staboli v Commission [2006] ECR-SC I-A-2-251 and II-A-2-1303, para. 26; T-377/08 P Commission v Birkhoff [2009] ECR-SC I-B-1-133 and II-B-1-807, paras 50 to 59 and 64

2. Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP is addressed to the Member States and not to the institutions. Accordingly, the provisions of that directive cannot be treated, as such, as imposing obligations on the institutions in the exercise of their legislative or decision-making powers. It follows that the provisions of Directive 1999/70, which implement the framework agreement on fixed-term work, cannot, as such, be a source of obligations on the Council or the Commission in the exercise of their legislative or decision-making powers for the purposes of governing the relations between the European Communities and their staff. Nor can they, as such, justify a plea of illegality in respect of Article 88 of the Conditions of employment of other servants or of the Commission’s decision of 28 April 2004 concerning the maximum duration of the recourse to non-permanent staff in the Commission’s services.

Even if the provisions of Directive 1999/70, which give effect to the framework agreement, cannot, as such, be a source of obligations on the Council or the Commission in the exercise of their legislative or decision-making powers for the purposes of governing the relations between the European Communities and their staff and cannot further justify a plea of illegality of Article 88 of the Conditions of employment of other servants or of the Commission’s decision of 28 April 2004, the fact remains that the rules or principles laid down or established in that directive may be relied on against those institutions where those rules or principles themselves appear only as the specific expression of fundamental rules of the Treaty and of general principles imposed directly on those institutions. After all, in a community based on the rule of law, the uniform application of the law is a fundamental requirement and any person subject to the law is subject to the principle of due process of law. Thus the institutions must comply with the rules of the Treaty and the general principles of law applicable to them in the same way as any other person subject to the law. It follows that the Conditions of employment of other servants and the Commission’s decision of 28 April 2004 should be interpreted, as far as possible, in a way that uniformly applies the law and is in conformity with the objectives and requirements of the framework agreement, implemented by Directive 1999/70, only in so far as those objectives and requirements themselves appear as the specific expression of fundamental rules of the Treaty and general principles of law imposed directly on the institutions.

(see paras 51, 52, 56, 57)

See:

C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paras 18 to 21; C-25/02 Rinke [2003] ECR I-8349, paras 24 to 28; C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I-10423, para. 104

T-495/04 Belfass v Council [2008] ECR II-781, para 43; T-195/08 Antwerpse Bouwwerken v Commission [2009] ECR II-4439, para. 55

3. The principle prohibiting abuse of rights, under which no one may seek to misuse rules of law, is one of the general principles of law compliance with which is ensured by the courts. It should, moreover, be pointed out that the establishment of a legal framework to prevent abuse of rights arising from the use of successive fixed-term employment contracts or relationships is an objective which was recognised and encouraged by the legislature in Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. Taking action against abuse of rights in this field serves, moreover, to achieve the objectives which the Community and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter of 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, adopted in Article 136 EC, which include improved living and working conditions and proper social protection for workers. It follows that the legislature, in exercising its legislative power under Article 283 EC 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, must, when adopting or implementing rules which govern the relations between the European Communities and their staff, prevent any abuse of rights arising from the use of successive fixed-term employment contracts or relationships, in accordance with the objectives of improved living and working conditions and proper social protection for workers, referred to in Article 136 EC. Thus, in so far as the Civil Service Tribunal had held that the objectives and minimum requirements of the framework agreement, as implemented by Directive 1999/70, and, more specifically, of clause 5(1) thereof, were specific expressions of the principle prohibiting abuse of rights, which is a general principle of law, it was justified in investigating, when examining the substance of the pleas of illegality in respect of Article 88 of the Conditions of employment of other servants and the Commission’s decision of 28 April 2004 concerning the maximum duration of the recourse to non-permanent staff in the Commission’s services, the extent to which that article and that decision could be interpreted in accordance with the objectives and minimum requirements of the framework agreement and, ultimately, with the principle prohibiting abuse of rights.

(see paras 59-62)

See:

C-162/07 Ampliscientifica and Amplifin [2008] ECR I-4019, paras 27, 30 and 32 and the case-law cited

T-271/04 Citymo v Commission [2007] ECR II-1375, para. 107 and the case-law cited

4. The provisions of the Conditions of employment of other servants governing the conclusion and renewal of contracts of employment as temporary staff, auxiliary staff, contract staff or contract staff for auxiliary tasks prohibit the authority empowered to conclude contracts of employment from using a succession of fixed-term employment contracts the object of which is the performance of permanent tasks on a long-term basis. Moreover, in so far as that authority has used a succession of fixed-term employment contracts the object of which was the performance of permanent tasks on a long-term basis, that misuse could be rectified and the negative consequences for the person concerned could be nullified by reclassification of the employment contract in accordance with the provisions of the Conditions, which may in particular lead to the conversion of fixed-term employment contracts to contracts of indefinite duration.

(see para. 67)