JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

9 October 2007

Case F-85/06

Gerardo Bellantone

v

Court of Auditors of the European Communities

(Civil service – Officials – Member of the temporary staff appointed as an official – Notice of termination of employment – Severance grant – Daily subsistence allowance – Material damage)

Application: brought under Articles 236 EC and 152 EA, in which Mr Bellantone, a former member of the temporary staff appointed as a probationary official on 1 April 2005, seeks annulment of the decision of the Secretary-General of the Court of Auditors of 30 March 2006 rejecting his complaint seeking payment of an allowance in lieu of, first, notice of termination of his employment as a member of the temporary staff, second, the severance grant, and third, the daily subsistence allowance, together with payment of the sums he considers due to him, plus interest.

Held: The action is dismissed. The applicant is to bear three quarters of his own costs. The Court of Auditors is to bear its own costs and to pay one quarter of the applicant’s costs.

Summary

1. Officials – Members of the temporary staff – Staff member appointed as probationary official – Appointment automatically ending employment relationship governed by the Conditions of Employment of Other Servants

2. Officials – Members of the temporary staff – Staff member appointed as probationary official – Temporary contract terminated by the institution without giving notice of termination of employment

(Conditions of Employment of Other Servants, Art. 47)

3. Officials – Members of the temporary staff – Severance grant – Conditions for granting

(Staff Regulations, Annex VIII, Art. 12; Conditions of Employment of Other Servants, Arts 39 and 40, first para.)

1. A member of the temporary staff who accepts an appointment as a probationary official becomes subject solely to the Staff Regulations, the application of which automatically terminates the relationships formerly governed by the Conditions of Employment of Other Servants, without its being necessary for the employment relationships thereunder to be terminated expressly by the administration.

However, if a Community institution elects formally to terminate the temporary contract before adopting the instrument appointing the member of staff concerned as a probationary official, that method of proceeding is lawful provided that the termination is effected in the prescribed manner and in accordance with the rules applicable.

(see paras 51-53)

See:

105/80 Desmedt [1981] ECR 1701, paras 14 and 15

2. A member of the temporary staff who is appointed as a probationary official is not entitled to compensation as a result of the appointing authority’s failure to give the notice of termination of employment provided for in Article 47(c)(i) of the Conditions of Employment of Other Servants.

Firstly, the Community institutions have a wide discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks. It is consistent with that organisational discretion for a member of the temporary staff who is appointed as a probationary official to have his legal status modified as part of a more general operation to eliminate a category of posts within an institution. In such a context, the institution is also obliged to appoint the officials on dates which are as close together as possible, for reasons of reconciling the interests of the service with respect for the principle of equal treatment. The appointing authority cannot be expected to offer the temporary staff member concerned the option of working for the maximum period of six years provided for in the Staff Regulations for fixed-period temporary contracts, when each post must be filled primarily on the basis of the interests of the service. Moreover, advancement from the status of temporary staff member to that of official fulfils the need for staff stability, and is thus also in the interests of the service. Nor can it be objected that the institution took into consideration the advantage that such advancement represented for the institution’s budget, since budgetary options are among the factors which the administration takes into account in its staff policy.

Secondly, the instrument by which the appointing authority has unilaterally appointed the temporary staff member as an official is not binding, since the person concerned may refuse the appointment, which is equivalent to an offer of employment.

Thirdly, compensating a person because he was not given notice, when that person was, during the period of notice, serving the same institution under the system of the Staff Regulations would be equivalent to unjust enrichment, prohibition of which is one of the general principles of Community law. By analogy with the rule prohibiting the concurrent payment of a pension and a salary, the need to protect the Communities’ resources prevents a probationary official from receiving a salary in combination with payment of an allowance in lieu of notice of termination of a temporary contract immediately prior to the appointment as a probationary official, in so far as that allowance is financed from the appropriations contained in the estimates of expenditure of one of the institutions mentioned in the general budget of the European Communities.

(see paras 60-64, 66-67)

See:

178/80 Bellardi-Ricci and Others v Commission [1981] ECR 3187, para. 19; C-259/87 Greece v Commission [1990] ECR I‑2845, para. 26

T-111/89 Scheiber v Council [1990] ECR II‑429, para. 28; T-171/99 Corus UK v Commission [2001] ECR II‑2967, para. 55; T-137/99 and T-18/00 Martínez Páramo v Commission [2002] ECR‑SC I‑A‑119 and II‑639, para. 95 and the case-law cited therein; T‑44/01, T‑119/01 and T‑126/01 Vieira and Others v Commission [2003] ECR II‑1209, para. 86; T-494/04 Neirinck v Commission [2006] ECR-SC I-A-2-259 and II-A-2-1345, paras 162 to 167, currently the subject of an appeal, C‑17/07 P

3. A member of the temporary staff is entitled to a severance grant only if his employment is definitely terminated, that is, where his temporary contract comes to an end, through termination or expiry, without being followed by an appointment as an official for a period of at least two months after the end of his temporary contract. Claiming entitlement to the severance grant while at the same time being appointed as an official would be tantamount to asking his institution, alone or together with another Community institution, to circumvent the rule laid down in the first paragraph of Article 40 of the Conditions of Employment of Other Servants.

(see para. 73)