JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

5 February 2014

Case F‑29/13

David Drakeford

v

European Medicines Agency (EMA)

(Civil service — Temporary staff — Article 8, first paragraph, of the CEOS — Non-renewal of a contract — Reclassification of a fixed-term contract as a contract of indefinite duration)

Application: under Article 270 TFEU, in which Mr Drakeford seeks annulment, first, of the decision of 30 August 2012 of the Executive Director of the European Medicines Agency (‘EMA’), as the authority empowered to conclude contracts of employment for the EMA (the ‘AECE’), not to renew his contract as a member of the temporary staff and to require him to take leave, and, second, of the same authority’s decision of 26 February 2013 rejecting his request for the reclassification of his auxiliary contract as a temporary contract, and, in the alternative, to renew his last temporary contract.

Held: The decision of the European Medicines Agency of 30 August 2012 not to renew Mr Drakeford’s contract is annulled. The European Medicines Agency is ordered to pay Mr Drakeford, in compensation for the material damage suffered up to the date of this judgment, the difference between (i) the amount of the remuneration which he would have earned if he had continued to be employed there up to the date of this judgment and (ii) the amount of the remuneration, fees, unemployment benefit or any other allowance in lieu which he has in fact received between 1 May 2013 and the date of this judgment in place of the remuneration which he was receiving as a member of the temporary staff. The parties are to forward to the Tribunal, within three months of the date of this judgment, either their mutually agreed solution to provide appropriate protection for Mr Drakeford’s rights, or, if there is no agreement, their quantified claims concerning the fair monetary compensation to be awarded for the material harm which he has suffered since the date of this judgment. The remainder of the action is dismissed. The costs are reserved.

Summary

1. Actions brought by officials — Act adversely affecting an official — Definition — Letter addressed to a member of the temporary staff reminding him of the date on which his contract expires — Not included — Decision not to renew a contract — Included

(Staff Regulations, Art. 90(2))

2. Officials — Members of the temporary staff — Temporary staff coming under Article 2(a) of the Conditions of Employment of Other Servants — Renewal after the first extension of the contract for a fixed term — Reclassification as a contract of indefinite duration — Concept of renewal — Continuation of the employment relationship with or without career development

(Conditions of Employment of Other Servants, Arts 2(a) and 8, first para.)

1. A letter from the administration 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. However, where the contract is renewable, a decision taken following an internal procedure on the basis of Article 8 of the Conditions of Employment of Other Servants, which communicates the administration’s intention not to renew the contract, constitutes an act adversely affecting the person concerned.

(see paras 23-25)

See:

15 October 2008, T‑160/04 Potamianos v Commission, para. 21

15 September 2011, F‑102/09 Bennett and Others v OHIM, paras 57 and 59 and the case-law cited therein; 26 June 2013, F‑135/11, F‑51/12 and F‑110/12 BU v EMA, para. 36, on appeal before the General Court of the European Union, Case T‑444/13 P; 23 October 2013, F‑124/12 Solberg v EMCDDA, paras 17 and 18

2. In the case of the reclassification of a fixed-term contract as a contract of indefinite duration in accordance with Article 8, first paragraph, of the Conditions of Employment of Other Servants, and in particular how to interpret the purpose of the renewal in the absence of any unequivocal indication in the wording of that provision, account must be taken of the purpose of the article itself.

In that regard, even though it is true that the stability of employment inherent in contracts of indefinite duration cannot be compared to that guaranteed by the Staff Regulations, since members of the temporary staff cannot expect to be granted a permanent contract of employment, the specific nature of employment contracts for an indefinite period, from the point of view of job security, constitutes an essential distinction between that category and fixed-term employment contracts. Consequently, by automatically deeming the third fixed-term contract signed to be concluded for an indefinite period, and by thus restricting the use of successive fixed-term contracts as members of the temporary staff, Article 8, first paragraph, of the Conditions of Employment of Other Servants certainly aims to guarantee the stability and, therefore, a certain continuity in the employment relationship of the staff member concerned with the institution, body or agency which recruited him.

The words ‘[a]ny further renewal’ in the third sentence of Article 8, first paragraph, of the Conditions of Employment of Other Servants should be interpreted as referring to any process that leads to temporary staff, within the meaning of Article 2(a) of the Conditions of Employment of Other Servants, at the end of their engagement for a fixed period, continuing, in that capacity, their employment relationship with their employer, even if such renewal is accompanied by grade progression or a change in the duties performed. The situation could be otherwise only if the new contract came under a different legal system or if the career path was interrupted, as shown by a material change in the nature of the duties performed by the staff member concerned, for instance.

(see paras 43, 45, 48)

See:

6 October 1982, 283/81 Cilfit v Ministry of Health, para. 20

26 October 2006, F‑1/05 Landgren v ETF, para. 68; 13 April 2011, F‑105/09 Scheefer v Parliament, paras 55 and 60