JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

26 February 2013 ( )

(Civil service – Member of the contract staff – Contract of indefinite duration – Termination)

In Case F‑74/11,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Aleksandra Bojc Golob, member of the contract staff of the European Commission, residing in Domžale (Slovenia), represented by S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers,

applicant,

v

European Commission, represented by G. Berscheid and D. Martin, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL

(First Chamber)

composed of H. Kreppel, President, E. Perillo and R. Barents (Rapporteur), Judges,

Registrar: J. Tomac, Administrator,

having regard to the written procedure and further to the hearing on 26 June 2012,

gives the following

Judgment

1 By application lodged at the Registry of the Tribunal on 28 July 2011, Aleksandra Bojc Golob brought the present action for annulment of the decision of the Authority Authorised to Conclude Contracts of Employment of the European Commission (‘the AACC’) of 30 September 2010 terminating her employment contract of indefinite duration, and, as far as necessary, for annulment of the decision of the AACC of 13 April 2011 rejecting the complaint submitted on 20 December 2010 pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (‘Staff Regulations’).

Legal context

2 Article 47 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) provides as follows:

‘Apart from cessation on death, the employment of temporary staff shall cease:

...

(c) where the contract is for an indefinite period:

(i) at the end of the period of notice stipulated in the contract; the length of the period of notice shall not be less than one month for each completed year of service, subject to a minimum of three months and a maximum of 10 months. ...’

3 Article 119 of the CEOS provides:

‘Articles 47 to 50a shall apply by analogy to contract staff.

...’

4 The framework agreement on fixed-term work concluded on 18 March 1999 (‘the framework agreement’), which is attached as an annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43), provides in the second and third sentences in the preamble:

‘The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.

This agreement sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations. It illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination and for using fixed-term employment contracts on a basis acceptable to employers and workers.’

5 Paragraph 6 of the general considerations in the framework agreement states that ‘employment contracts of an indefinite duration are the general form of employment relationships and contribute to the quality of life of the workers concerned and improve performance’.

6 Clause 1 of the framework agreement states that the purpose of that agreement is to:

‘(a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

(b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.

Background to the dispute

7 On 16 March 2006, the applicant was recruited, for a fixed period ending on 31 December 2006, as a member of the contract staff, in accordance with Article 3a of the CEOS, to assist the Directorate General of Communications (‘DG Communication’) and assigned to the Commission Representation in Ljubljana (Slovenia). By decision of 6 December 2006, her contract was extended until 15 March 2009.

8 By a note of 15 December 2008, the Head of the Human Resources and Documentation Management Unit of DG Communication informed the applicant of the decision to offer her an extension of her contract for an indefinite period. However, in the same note, the applicant was also informed that her contract was directly related to the budget appropriation specific to the Commission’s Action Plan to improve communication in Europe between 2005 and 2010 (‘action plan’) and that, therefore, her contract would terminate on 31 December 2010. On 3 March 2009, the applicant was offered that extension. Pursuant to that offer, the working conditions and the other provisions of her contract remained unchanged, except for the termination clause, which was amended by a reference to Articles 47(c)(i) and 119 of the CEOS.

9 By a note of 10 February 2010, the Human Resources and Documentation Management Unit informed the applicant that her contract would terminate on 31 December 2010 and that, in accordance with the applicable provisions, she would receive a contract termination note.

10 By a note of 30 September 2010, the Commission notified the applicant of the decision to terminate her contract, in accordance with Article 47(c)(i) of the CEOS, the notice period commencing on 1 October 2010 (‘the contested decision’).

11 On 11 October 2010, the applicant requested that the Commission review the contested decision. By a note of 4 November 2010, the Commission confirmed its decision of 30 September 2010. On 12 November 2010, the applicant expressed her disagreement with the note of 4 November 2010.

12 By a note of 25 November 2010, the Commission informed the applicant that, under the applicable rules, her contract would terminate on 31 January 2011, and not on 31 December 2010.

13 The applicant was absent on sick leave at the end of December 2010, and informed the Commission that she was pregnant on 14 January 2011. The applicant was once again absent from 21 February to 11 March 2011, and on maternity leave from 12 March to 27 July 2011.

14 On 31 January 2011, on account of those circumstances and the fact that the notice period cannot be less than one month for each completed year of service, subject to a maximum of 10 months, and cannot begin to run and must be suspended during sick leave or maternity leave, the Commission extended the applicant’s notice period until 9 May 2011. On 6 May 2011, for similar reasons, the notice period was extended until 9 August 2011.

15 In the meantime, on 20 December 2010, the applicant filed a complaint against the contested decision. By decision of 13 April 2011, the Commission rejected that complaint.

Forms of order sought and procedure

16 The applicant claims that the Tribunal should:

– declare that the action is admissible;

– annul the contested decision and, as far as necessary, the decision rejecting her complaint;

– order the Commission to pay the costs.

17 The Commission contends that the Tribunal should:

– declare the application inadmissible and, in any event, unfounded;

– order the applicant to pay the costs.

18 As a result of the expiry of the term of office of the Judge-Rapporteur to whom the case was initially assigned and the change in the composition of the Chambers of the Tribunal, on 12 October 2011 the President of the Tribunal reassigned the case to the First Chamber of the Tribunal and appointed a new Judge-Rapporteur.

19 By letter of 25 May 2012, the Tribunal, as a measure of organisation of procedure, requested the parties to answer several questions. The applicant and the Commission complied with that request by letters of 8 June and 5 June 2012 respectively.

Law

The claim for annulment of the decision of 13 April 2011 rejecting the complaint

20 According to settled case-law, a claim for annulment formally directed against the decision rejecting a complaint has the effect, where that decision lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (see, to that effect, judgment of 17 January 1989 in Case 293/87 Vainker v Parliament, paragraph 8; judgment of 9 July 2009 in Case F‑104/07 Hoppenbrouwers v Commission, paragraph 31). In those circumstances, since the decision of 13 April 2011 rejecting the complaint is devoid of any independent content, the action for annulment must be regarded as directed only against the contested decision.

The claim for annulment of the contested decision

Admissibility

– Arguments of the parties

21 According to the Commission, the action is inadmissible. It maintains that the decision to terminate the applicant’s contract was taken by the note of 15 December 2008 informing the applicant that the Commission was under an obligation to terminate her contract of indefinite duration on 31 December 2010. In relation to that decision, the notes of 10 February 2010, 30 September 2010 and 4 November 2010 are merely confirmatory measures which do not contain any new information. As the decision of 15 December 2008 has not been contested, the action against the decision of 30 September 2010 is inadmissible.

22 The applicant contends that her action is admissible. She claims that only the decision of 30 September 2010, which formally terminated her employment, is a measure which adversely affected her thereby fulfilling all the conditions to constitute the subject-matter of an action.

23 The applicant adds that the note of 15 December 2008, even though it predicted that the contract would end in 2010, also indicated that the contract would end ‘with transmission of notice in accordance with the applicable rules on this matter’. The termination of the contract with transmission of notice was therefore carried out later by a separate measure.

24 The same is true of the note of 10 February 2010. That note also indicated that the Commission ‘would send … a contract termination note in due time’ and that ‘[the applicant] will be duly informed should there be any new development in the meantime regarding the availability of the budget’. That detail suggests that the information relating to the termination of the contract was only of a very provisional nature.

– Findings of the Tribunal

25 The Tribunal must first of all reject the Commission’s argument that the decision to terminate the applicant’s contract of indefinite duration on 31 December 2010 was taken by the note of 15 December 2008. The date of 31 December 2010, to which that note refers, is linked to both the end of the action plan and to the budget appropriation specific to that action plan. In contrast, the contract offered to the applicant by the Commission, whilst offered in the context of that action plan, is a contract of indefinite duration to which the relevant provisions of Articles 119 and 47 to 50a of the CEOS apply as regards the termination of the employment.

26 It is therefore by the contested decision, adopted pursuant to Article 47(c)(i) of the CEOS, as provided for in the contract of 3 March 2009, that the Commission decided to terminate the applicant’s contract of indefinite duration. The time-limit for bringing a complaint therefore runs from the date of that decision, which constitutes the act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations.

27 It follows that the plea of inadmissibility raised by the Commission, alleging that the complaint and therefore the present action were brought out of time, must be rejected.

Substance

28 In support of her claims, the applicant relies on two pleas in law, alleging (i) failure to state reasons, manifest error of assessment and breach of the duty to have regard for the welfare of staff; and (ii) disregard of the framework agreement and Directive 1999/70 and denial of stable employment.

The first plea in law, alleging failure to state reasons, manifest error of assessment and breach of the duty to have regard for the welfare of staff

– Arguments of the parties

29 The applicant claims that the contested decision is vitiated by a failure to state reasons, manifest error of assessment and breach of the duty to have regard for the welfare of staff on the ground that the Commission was wrong to terminate her contract because of insufficient budget appropriations. So far as concerns the first two submissions, the applicant refers to a PowerPoint presentation of October 2010 which mentions the creation of 20 additional posts under the 2011 budget for a certain number of representations including Ljubljana. In addition, the applicant claims that a colleague, whose fixed-term contract was also linked to the action plan, was offered a contract extension of two years. Therefore, according to the applicant, on 31 December 2010 the Commission had the necessary budget to finance her post. As regards the third submission, alleging breach of the duty to have regard for the welfare of staff, the applicant, relying on the considerations she put forward in support of the first two submissions, maintains that it is evident that the AACC, in adopting the contested decision, did not take account of her interests and therefore breached its duty to have regard for the welfare of staff.

30 The Commission contends that that plea in law should be dismissed. So far as concerns, first, the first two submissions, the Commission observes that, in its reply to the complaint, it had already informed the applicant that the action plan, to which her contract was linked, had been set up on the basis of a special budgetary allocation for external staff in the representations, which ended on 31 December 2010, and that in the framework of the 2011 budgetary year most of the contract staff posts were filled by the extension of existing fixed-term contracts in the representations. The Commission submits, second, that, in the applicant’s interests, it enquired about the possibility of offering her a new contract but that had not been possible given her qualifications. Moreover, the applicant did not apply to any of the 8 vacant contract staff posts in the representations which were the subject of a call for expressions of interest. For all of those reasons, the Commission is therefore of the opinion that the first plea in law is unfounded.

– Findings of the Tribunal

31 The Tribunal rejects from the outset the applicant’s argument alleging the lack of a proper statement of reasons in the contested decision. It must be held that, by her arguments, the applicant is in fact seeking to challenge the content of that decision. In that regard, it should be borne in mind that the examination of the existence and the scope of the reasons on which a Commission decision is based forms part of the review of essential procedural requirements and of the formal legality of that decision. It must therefore be distinguished from the examination of the merits of the grounds of the decision, which forms part of the review of its substantive legality (judgment of 2 April 1998 in Case C‑367/95 P Commission v Sytraval and Brink’s France, paragraph 67, and judgment of 18 January 2005 in Case T‑93/02 Confédération nationale du Crédit Mutuel v Commission, paragraph 67).

32 So far as concerns the submission that the contested decision is vitiated by a manifest error of assessment, it must be observed that the Commission has always maintained, without being challenged by the applicant, that the budget line for the financing of the action plan ran until 31 December 2010. It is clear from the notes of 15 December 2008 and 10 February 2010 that the applicant was expressly informed that her contract, which was directly linked to that action plan, would end for that reason on 31 December 2010.

33 As regards the availability of budgetary appropriations after 31 December 2010, the Commission correctly stated that the special funds of the action plan had been converted into jobs in the framework of the 2011 budgetary year and that, in particular, 20 ‘contract staff posts in the representations’ were awarded, with most of those posts being filled ‘by the extension of existing fixed-term contracts in the representations’. It follows that the appropriations available for the extension of fixed-term contracts of contract staff in the representations for the 2011 financial year were not the same as those intended for implementing the action plan, the expiry of which at the end of 2010 was the ground for terminating the applicant’s contract. Consequently, the first part of the plea in law relating to manifest error of assessment must be dismissed.

34 As to the alleged breach of the duty to have regard for the welfare of staff, the Tribunal finds first of all that that plea has not been substantiated. Consequently, in accordance with Article 35(1)(e) of the Rules of Procedure, that plea must be rejected as inadmissible. In any event, it must be considered, first, that the applicant recognised that, for the six contract agents recruited in the framework of the action plan whose contracts had ended, the Commission had organised a call for expressions of interest for the eight vacant posts for contract agents in the representations and, second, that the Commission correctly stated that the applicant applied only for three posts which all required knowledge of a foreign language which she did not know, whereas she did not apply for the two posts in the representation in Dublin (Ireland) which would have been more appropriate given her language skills. Accordingly, the Commission cannot be accused of having breached its duty to have regard for the welfare of staff in respect of the applicant.

The second plea in law, alleging disregard of the framework agreement and Directive 1999/70 and denial of stable employment

– Arguments of the parties

35 The applicant states that the contested decision is patently inconsistent with Directive 1999/70 and the framework agreement, and in particular with the second sentence of the preamble to the framework agreement and paragraph 6 of the general considerations thereof, according to which ‘employment contracts of an indefinite duration are the general form of employment relationships’. In that regard, the applicant claims that the Commission stated in its decision of 13 April 2011, rejecting the applicant’s complaint, that the 20 contract staff posts in the framework of the 2011 budgetary year were mainly filled by the extension of existing fixed-term contracts in the representations and that it had terminated the contracts of indefinite duration rather than let the fixed-term contracts reach their term.

36 The applicant maintains that the termination of her contract, although she was employed under a contract of indefinite duration, and the renewal of her colleague’s fixed-term contract, must be considered to be the result of the Commission’s preference for fixed-term contracts over contracts of indefinite duration, and that the Commission refused, in consequence, to grant her stable employment despite the fact that it was guaranteed by her contract of indefinite duration.

37 The Commission contends that that plea in law should be dismissed. It takes the view that that rule cannot be relied on against the institutions since the principle of stable employment does not constitute a general principle of law. Next, the Commission maintains that the applicant does not claim that the contested decision was made in breach of the interest of the service. The Commission also submits that the applicant’s interpretation of the directive is manifestly incorrect since that directive concerns the quality of fixed-term work and cannot therefore favour permanent workers over those employed under a fixed-term contract.

– Findings of the Tribunal

38 It should be borne in mind first of all that Clause 1 of the framework agreement states that the purpose of that agreement is, first, to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination and, second, to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

39 Accordingly, Directive 1999/70 and the framework agreement can apply to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies and seek to place limits on successive recourse to fixed-term employment contracts, a category regarded as a potential source of abuse to the disadvantage of workers (judgment of 4 July 2006 in Case C‑212/04 Adeneler and Others, paragraphs 54 and 63).

40 It follows that Directive 1999/70 and the framework agreement are not relevant in assessing the applicant’s situation since she was employed under a contract of indefinite duration from 3 March 2009.

41 Even if the applicant had been employed under a fixed-term contract, she has not established that the contested decision is inconsistent with Directive 1999/70 and the framework agreement, in particular with regard to Clause 4 of the framework agreement, which defines the principle of non-discrimination, according to which ‘fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract’, and Clause 6, according to which ‘[e]mployers shall inform fixed-term workers about vacancies which become available’.

42 So far as concerns the alleged denial, by the contested decision, of stable employment, it is settled case-law that while such stability is a major element in the protection of workers (judgment of 22 November 2005 in Case C‑144/04 Mangold, paragraph 64), it does not constitute a general principle of law in the light of which the legality of an act of an institution must be assessed.

43 Consequently, that principle cannot be interpreted as prohibiting the Commission from ending a contract of indefinite duration in accordance with Article 47(c)(i) of the CEOS.

44 In so far as the applicant seeks to challenge the criteria applied by the Commission in filling the 20 contract staff posts in the framework of the 2011 budgetary year, it must be noted that she has not established that the choice made by the Commission to recruit contract staff under fixed-term contracts was based on an interpretation of the CEOS which contradicts the terms and purpose of Directive 1999/70 and the framework agreement.

45 Lastly, the applicant claims that one of her colleagues was granted an extension and was offered a new fixed-term contract.

46 In that regard, it must be held that, in her application, the applicant merely referred to the renewal of her colleague’s fixed-term contract. When asked at the hearing to explain her argument in that regard, the applicant stated that she was unable to respond. In accordance with Article 35(1)(e) of the Rules of Procedure, that submission must therefore be dismissed as inadmissible.

47 It follows from all the foregoing that the action must be dismissed in its entirety.

Costs

48 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he or she is not to be ordered to pay any.

49 It is apparent from the reasons set out above that the applicant has been unsuccessful. Furthermore, in its pleadings the Commission has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant must bear her own costs and is ordered to pay the costs incurred by the Commission.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

hereby:

1. Dismisses the action;

2. Declares that Aleksandra Bojc Golob must bear her own costs and orders her to pay the costs incurred by the European Commission.

Kreppel Perillo Barents

Delivered in open court in Luxembourg on 26 February 2013.

W. Hakenberg H. Kreppel