EN Official Journal of the European Union C 82/11

Appeal brought on 8 January 2009 by Gerasimos Potamianos against the judgment delivered on 15 October 2008 in Case T-160/04 Potamianos v Commission

(Case C-4/09 P)

(2009/C 82/21)

Language of the case: French

Parties

Appellant: Gerasimos Potamianos (represented by: S. Orlandi, A. Coolen, J.-N.Louis and E. Marchal, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— Annul all the provisions of the judgment of the Court of First Instance (Seventh Chamber) of 15 October 2008 in Case T-160/04 Potamianos v Commission, by which the Court of First Instance dismissed in its entirety the appellant's action of 26 April 2004 against the decision of the authority empowered to conclude contracts of employment (AECE) not to extend his contract as a temporary agent;

— annul the decision of the AECE not to renew his contract as a temporary agent;

— order the defendant to pay the costs at both instances.

Pleas in law and main arguments

By his appeal, the appellant relies on four pleas in support of his appeal.

In accordance with the first plea, he alleges that the interpretation of the Court of First Instance that the fact that his contract as a temporary agent was not renewed is based on reasons related to the interests of the service is incorrect. The appellant's hierarchy made a number of requests for his contract to be extended. On the contrary, objective, relevant and concordant evidence shows that the sole basis of the decision not to renew his contract was the application of the rule prohibiting aggregation of service, which imposes a maximum limit of six years on the employment of a temporary agent.

By his second plea, the appellant submits that the Court of First Instance erred in law in that it considered that he had not submitted an application for the post in question, whereas, in good time, he had requested that his contract be extended and reiterated that request on several occasions, including after publication of the vacancy notice.

By his third plea, the appellant submits that the Court of First Instance erred in law in that it found that the AECE did not misuse its powers. The stated aim of employment of temporary agents was to reduce the number of posts vacant within the Commission and, in particular, to make up for the shortage of candidates who had been successful in competitions.

The latter aim was in no way met by the refusal to extend the appellant's contract following application of the rule prohibiting aggregation of service, since his post was advertised before any competition lists were published. Moreover, another temporary agent was given a long-term contract in that post, while the contracts of all the other temporary agents employed on a short-term basis in the same directorate were automatically extended, without prior advertisement of their posts.

Finally, the principle of equal treatment has been breached since all the other temporary agents who were in a comparable situation apart from their length of service, had their contracts extended without their posts being advertised, unlike the procedure adopted in the case of the appellant. In that context, the burden of proof was wrongly reversed in the proceedings before the Court of First Instance, since it is for the defendant — and not for the applicant — to prove that rules which it laid down itself have been followed.