JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

15 September 2011





Case F-102/09





Kelly-Marie Bennett and Others

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Civil service – Members of the temporary staff – Contract of indeterminate duration with a termination clause – Open competition – Admissibility – Act adversely affecting a member of staff – Articles 8 and 47 of the Conditions of Employment – Obligation to state reasons – Duty to have regard for the welfare of staff – Principle of sound administration – Legitimate expectations – Principle of performance of contracts in good faith – Misuse of powers)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Bennett and 13 other members or former members of the temporary staff of OHIM seek, in particular, annulment of OHIM’s decisions of 12 March 2009 terminating their contracts and also compensation for the non-pecuniary harm allegedly sustained.

Held: Ms Infante Seco Herrera is removed from the list of applicants. OHIM’s decision of 12 March 2009 to terminate the temporary staff contracts of Ms Bennett, Ms Galle, Ms Nuti, Ms Scardocchia, Ms Schmidt, Mr Chertier González, Mr Guarinos Viňals and Mr Ramirez Battistig is annulled. OHIM is ordered to pay Ms Bennett, Ms Galle, Ms Nuti, Ms Scardocchia, Ms Schmidt, Mr Chertier González, Mr Guarinos Viňals and Mr Ramirez Battistig the difference between the amount of the remuneration to which they would have been entitled if they remained in their posts at OHIM and the remuneration, unemployment benefit or any other substitute allowance which they may actually have received elsewhere since 15 October 2009. The remainder of the action is dismissed. OHIM is ordered to bear three quarters of its own costs and to pay the costs of Ms Bennett, Ms Galle, Ms Nuti, Ms Scardocchia, Ms Schmidt, Mr Chertier González, Mr Guarinos Viňals and Mr Ramirez Battistig. Ms Dickmanns, Ms Forzy, Mr Bianchi, Mr Ruiz Molina and Mr Zaragoza Gomez are order to bear their own costs and to pay one quarter of OHIM’s costs. Ms Infante Seco Herrera is ordered to bear her own costs.

Summary

1. 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))

2. 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))

3. 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, first and second paras; Council Directive 1999/70, Annex, Clauses 1(b), 3(1) and 5(1)(b) and (c))

4. Procedure – Application initiating proceedings – Formal requirements

(Rules of Procedure of the Civil Service Tribunal, Art. 35(1)(e))

5. 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. 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 56-59)

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, para. 46

2 February 2001, T-97/00 Vakalopoulou v Commission, para. 14; 1 April 2003, T-11/01 Mascetti v Commission, para. 41; 15 October 2008, T-160/04 Potamianos v Commission, para. 21

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

2. 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.

Therefore, the member of staff concerned cannot be required to challenge that clause immediately the contract is signed, when it is not certain that the conditions in which it would be applicable will be met. 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 63, 64, 80)

See:

Daake v OHIM, paragraph 34 et seq.

3. Clause 1(b) of the Framework Agreement on fixed-term work, which is annexed to Council Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, is intended to establish a framework in order to prevent abuse arising from the use of successive fixed-term employment contracts or relationships and, from that aspect, it is aimed at circumscribing the successive use of fixed-term contracts of employment, which are regarded as a potential source of abuse to the disadvantage of workers, by laying down a number of minimum protective requirements intended to prevent employees from being placed in an insecure position. 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. Such provisions correspond to the measures referred to in Clause 5(1)(b) and (c) of the framework agreement, which are designed to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

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, 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.

However, that cannot justify the non-application of the rule laid down in the first paragraph of Article 8 of the Conditions of Employment of Other Servants, which provides that ‘any further renewal’ following a first renewal for a fixed period of a temporary staff contract governed by Article 2(a) of the Conditions of Employment ‘shall be for an indefinite period’, that reclassification taking effect by operation of law. Such a rule is aimed at the situation of any member of the temporary staff covered by Article 2(a) who, after entering into two successive fixed-term contracts, continues his employment relationship without interruption with a given institution or agency. To accept that a period of work as a member of the auxiliary staff could interrupt that employment relationship and thus preclude the applicability of the first paragraph of Article 8 of the Conditions of Employment would make it possible to legitimise the use of a device that would deprive that provision, which is intended to protect workers against the abusive use of fixed-term contracts, of all substance.

(see paras 85, 86, 104, 106, 110, 112)

See:

4 July 2006, C-212/04 Adeneler and Others, para. 63

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

4. Under Article 35(1)(e) of the Rules of Procedure of the Civil Service Tribunal, the statement of the applicant’s pleas in law set out in the application must be sufficiently clear and precise to enable the defendant to prepare his defence and to enable the Tribunal to give judgment in the action without having to seek further information, if appropriate. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars on which the action is based be indicated, at least in summary form, but in a coherent and intelligible fashion, in the text of the application itself.

(see para. 115)

See:

14 December 2005, T-209/01 Honeywell v Commission, paras 55 and 56 and the case-law cited

6 May 2010, T-100/08 P Kerelov v Commission, para. 16

5. 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. 184)

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