JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

29 January 2009

Case F-98/07

Nicole Petrilli

v

Commission of the European Communities

(Civil service – Auxiliary contract staff – Admissibility – Act causing adverse effect – Article 3b and Article 88 of the Conditions of employment of other servants – Duration of the contract – 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 – Legality)

Application: brought under Articles 236 EC and 152 EA, in which Ms Petrilli seeks annulment of the Commission’s decision of 20 July 2007 rejecting her request for an extension of her contract as an auxiliary member of contract staff, together with an order for the Commission to pay damages.

Held: The Commission’s decision of 20 July 2007 rejecting the applicant’s request for an extension of her contract as an auxiliary member of contract staff is annulled. The parties are ordered to transmit to the Tribunal, within three months of delivery of the present interim judgment, either the amount of the monetary compensation agreed between the parties in respect of the illegality of the decision of 20 July 2007 or their conclusions, with supporting figures, as to that amount. The costs are reserved.

Summary

1. Officials – Conditions of Employment of Other Servants – Auxiliary contract staff – Duration of employment

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

2. Officials – Conditions of Employment of Other Servants – Auxiliary contract staff – Duration of employment

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

1. The first paragraph of Article 88 of the Conditions of Employment of Other Servants allows the authority authorised to conclude contracts of engagement to conclude and renew contracts of auxiliary members of the contract staff for a fixed period, provided that ‘the actual period of employment within an institution, including any period under renewal, [does] not exceed three years’. The meaning of the term ‘actual period of employment within an institution’ must refer to the duration of a contract as a member of the contract staff, as provided for in Article 3b of the Conditions of Employment of Other Servants, rather than the duration of any employment within the institution.

(see paras 47-48)

2. An institution may not, without infringing the first paragraph of Article 88 of the Conditions of Employment of Other Servants, impose a general and impersonal restriction, in particular by means of general implementing provisions or an internal decision of general application, on the maximum possible duration of employment of contract staff under Article 3b of the Conditions of Employment, fixed by the legislature itself. The institutions are not competent to derogate from an express rule in the Staff Regulations or the Conditions of Employment by means of an implementing provision unless they are expressly authorised to do so.

It is clear from the third indent of Article 1(2)(a) of the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services that that decision, and therefore the six-year limit for the provision of services contained in Article 3(1), apply to auxiliary contract staff as a whole, with the single exception of the conference interpreters referred to in Article 90 of the Conditions of Employment of Other Servants.

It is true that the six-year rule is likely to limit the duration of a contract as an auxiliary member of the contract staff to a period of less than three years only in a situation where the person concerned has previously been recruited as a member of the temporary, auxiliary, contract, agency or other staff. Article 3(1) of the Decision of 28 April 2004 thus does not have the effect of systematically reducing the maximum period of three years provided for in the first paragraph of Article 88 of the Conditions of Employment of Other Servants.

However, the number of occasions when a derogation, worded in general and impersonal terms, from the maximum possible duration of employment of auxiliary members of the contract staff, as fixed in the first paragraph of Article 88 of the Conditions of Employment of Other Servants, is actually applied is not decisive for determining whether the Commission is competent to derogate from an express rule in the Conditions of Employment.

Article 3(1) of the Commission Decision of 28 April 2004 therefore unlawfully restricts the scope of the provision of the first paragraph of Article 88 of the Conditions of Employment of Other Servants.

(see paras 54-59)

See:

T-54/92 Schneider v Commission [1994] ECR-SC I‑A‑281 and II‑887, para. 19

F-54/07 Joseph v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, para. 69