JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

27 November 2012

Case F‑59/11

Peter Sipos

v

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

(Civil service — Temporary staff — Decision refusing to renew a temporary staff contract concluded under Article 2(a) of the CEOS — Conditions for the conclusion of a temporary staff contract for a fixed term under Article 2(b) of the CEOS — Manifest error of assessment)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Sipos seeks, first, annulment of the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 29 September 2010 rejecting the applicant’s request for a second renewal of his temporary staff contract signed on 16 July 2005 under Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) and the application to him of Article 8, first paragraph, of the CEOS, secondly, annulment of the decision of 1 August 2010 by which OHIM engaged the applicant for a fixed term as a member of the temporary staff under Article 2(b) of the CEOS, in so far as that engagement in fact constitutes a second renewal of the contract signed on 16 July 2005 and should therefore have been concluded under Article 2(a) of the CEOS, for an indefinite period, and thirdly, compensation for the loss suffered by the applicant through the conduct of OHIM.

Held: The action is dismissed. The applicant is to bear his own costs and those incurred by OHIM.

Summary

1. Officials — Members of the temporary staff — Recruitment — Conclusion of a contract to occupy a permanent post temporarily — Conditions

(Staff Regulations, Art. 1a(1); Conditions of Employment, Arts 2(b), 3, 4, 5 and 8, second para.)

2. Officials — Members of the temporary staff — Temporary staff covered by Article 2(a) of the Conditions of Employment — Renewal of a contract after the first extension for a fixed period — Reclassification of a fixed term contract as a contract for an indefinite period — Conditions

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

3. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed term contract — Administration’s discretion — Limits — Interests of the service

4. Officials — Members of the temporary staff — Recruitment — Non-renewal of a fixed term contract — Obligation to state reasons — None — Exception — Decision rejecting the request of staff member to obtain the renewal of his fixed term contract

(Staff Regulations, Arts 25, second para., and 90(1))

1. It follows from a combined reading of Article 1a(1) of the Staff Regulations and Articles 2 to 5 of the CEOS that permanent posts in the institutions are, in principle, intended to be filled by officials and that it is only by way of exception that such posts may be filled by other staff. Thus, although Article 2(b) of those Conditions of Employment expressly provides that temporary staff may be engaged to fill a permanent post, it also states that this may only be on a temporary basis. Moreover, the second paragraph of Article 8 of the CEOS provides that temporary staff are not to be engaged for more than four years, but their contracts may be renewed not more than once for a maximum period of two years. At the end of that time, they must cease to be employed as temporary staff, either by termination of their employment or by their appointment as officials in accordance with the Staff Regulations.

(see paras 37-38)

2. In order for a temporary staff contract covered by Article 2(a) of the Conditions of Employment of Other Servants to be regarded, in the event of a second renewal, as being of an indefinite duration in pursuance of the second paragraph of Article 8 of those Conditions, two conditions must be met namely, first, the contract concerned must be a temporary staff contract covered by Article 2(a) of the Conditions of Employment of Other Servants and, second, that contract must constitute the renewal of a contract that has already been renewed.

In that regard, the administration cannot conclude a contract of indefinite duration under Article 2(a) of the Conditions of Employment of Other Servants unless a post which the budgetary authorities have classified as temporary is included in the list of posts appended to the section of the budget relating to the institution concerned.

(see paras 40, 42)

3. Where the administration has not adopted a scheme based on a principle of conditional renewal of staff contracts, the authority empowered to concluded contracts of employment enjoys broad discretion in deciding whether to renew a fixed term contract, which is none the less conditional upon the interest of the service which demands that the best candidates be recruited for vacant posts. Hence, an applicant may establish that the administration has committed a manifest error of assessment by not renewing his contract if he demonstrates that it was clear that his performance and his professional experience were sufficiently exceptional to surpass those of any other potential candidate or, at least, that his performance and professional experience were superior to those of the person who was ultimately chosen to occupy the post at issue.

(see paras 56-57)

See:

6 February 2003, T‑7/01 Pyres v Commission, paras 50 and 64; 1 March 2005, T‑258/03 Mausolf v Europol, paras 47 to 49

27 November 2008, F‑35/07 Klug v EMEA, paras 65 and 66

4. The administration is not required to state reasons for its decision not to renew a fixed-term contract when it expires. As a rule, each of the contracting parties must expect, from the start of the contractual relationship, that the other party will make use of his right to rely on the terms of the contract as they were agreed, and in particular the date fixed for the expiry of the contract. Accordingly, unless the administration has developed a system under which contracts of employment are renewed conditionally, it appears that it should not be necessary, in the absence of any right to the renewal of a fixed-term contract, for the administration to state reasons for its adherence to the terms of the contract as regards the date initially fixed for its expiry.

On the other hand, the decision by which the administration rejects a staff member’s request for renewal of his contract must state the grounds on which it is based, in pursuance of the second paragraph of Article 25 and Article 90(1) of the Staff Regulations, since it constitutes a decision adversely affecting that person.

(see para. 71)

See:

29 September 2009, F‑114/07 Wenning v Europol, para. 142 and the case‑law cited; 23 November 2010, F‑8/10 Gheysens v Council, para. 64