JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

26 June 2008

Case F-54/07

Anne Joseph

v

Commission of the European Communities

(Civil service – Contract staff – Action out of time – Unforeseeable circumstances – Recruitment – Articles 3a, 3b and 85 of the CEOS – Duration of the contract – Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services – Article 12 of the GIP on the procedures governing the engagement and the use of contract staff at the Commission – Equal treatment)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Joseph seeks, in particular and essentially, annulment of the decision of the authority responsible for concluding contracts fixing at 15 months rather than 3 years the duration of the contract employing her as a member of the contract staff, signed on 20 July 2006 and taking effect on 16 October 2006, and, to the extent that it is necessary, annulment of the express decision of 13 February 2007 rejecting her complaint.

Held: The application is dismissed. Each party is to bear its own costs.

Summary

1. Officials – Contract staff – Recruitment

(Conditions of Employment of Other Servants, Arts 3a and 85(1))

2. Officials – Contract staff – Recruitment

(Conditions of Employment of Other Servants, Arts 3a, 82(6) and 85(1))

3. Officials – Contract staff – Equal treatment

(Conditions of Employment of Other Servants, Arts 3a, 82(5) and (6) and 85(1))

4. Officials – Contract staff – Grading

(Conditions of Employment of Other Servants, Art. 3a)

1. When it imposed a maximum period of five years, under the terms of Article 85(1) of the Conditions of Employment of Other Servants, for both the conclusion and the renewal of contract staff contracts, the legislature none the less did not prohibit the institutions from concluding or renewing that type of contract for a shorter period, under Article 3a of the Conditions of Employment, provided that the minimum duration provided for in Article 85(1) of the Conditions of Employment is observed. However, an institution may not, without infringing Article 85(1) of the Conditions of Employment, impose a general and impersonal restriction, in this instance by means of general implementing provisions or an internal decision of general application, on the maximum possible duration of employment of contract staff fixed by the legislature itself.

(see paras 68-69, 91-92)

2. In laying down a maximum total duration of three years for the conclusion or renewal of a contract staff contract, as referred to in Article 3a of the Conditions of Employment of Other Servants, only in cases where the staff member in question has not undergone the selection tests provided for in Article 5 of the general implementing provisions on the procedures governing the engagement and the use of contract staff at the Commission, the Commission did not disregard the lower and upper thresholds fixed in Article 85(1) of those Conditions of Employment. Using the powers conferred on the institutions by Article 82(6) of the Conditions of Employment to adopt rules, in the form of general implementing provisions, governing the procedures for engagement of contract staff, the Commission provided for the possibility, in Articles 11 and 12 of those general implementing provisions, of engaging under Article 3a or 3b of the Conditions of Employment contract staff who had not undergone the selection procedures provided for in Articles 5 or 8 of the general implementing provisions, during a transitional period from 1 November 2004 to 1 May 2007. The Commission is entitled, without exceeding the limits of its powers under Article 82(6) of the Conditions of Employment, to take account of that short-term transitional arrangement when fixing the maximum possible duration of the contract staff contracts referred to in Article 3a of the Conditions of Employment, concluded under Article 12(1) of the general implementing provisions.

(see paras 74-75, 94)

3. Although, under the terms of Article 85(1) of the Conditions of Employment of Other Servants, the contracts of contract staff referred to in Article 3a of the Conditions of Employment may be concluded for a fixed period of at least three months and not more than five years, whereas Article 12(1) of the general implementing provisions on the procedures governing the engagement and the use of contract staff at the Commission limits the permitted duration of the contracts of contract staff who have not undergone the selection procedures provided for in Articles 5 or 8 of those general implementing provisions, that difference in treatment is justified by the institution’s desire to allow staff already engaged without initially having come up against the ‘six year rule’, and whose contracts are being renewed, to take part effectively in the selection procedures organised by the European Communities Personnel Selection Office (EPSO), it being understood that the total duration of the initial contract and of the renewed contract may not, in any event, exceed three years. Thus contract staff who are being offered a first contract and those whose contract is being renewed are not in comparable situations, and may therefore be treated differently with regard to the duration of their employment contracts.

Furthermore, the fact that Article 85(1) of the Conditions of Employment of Other Servants does not make any distinction, for determining the duration of the contracts in question, according to whether or not the person concerned has passed the selection tests to be recruited as a member of the contract staff, does not affect the validity of Article 12(1) of the general implementing provisions. Given that the Conditions of Employment of Other Servants themselves provide in Article 82(5) for the possibility of organising such selection procedures, persons who have passed the selection tests are not in a comparable situation to that of persons who have not taken part in those procedures. Moreover, the Commission enjoys a wide discretion in fixing general rules governing the procedures for engaging contract staff in accordance with Article 82(6) of the Conditions of Employment and, in particular, in applying Article 85(1) of the Conditions of Employment as regards fixing the duration of contract staff contracts within the stated limits.

(see paras 79-81)

4. Under the terms of Article 3a(1) of the Conditions of Employment of Other Servants, contract staff engaged ‘in an institution’ are there ‘to carry out manual or administrative support service tasks’ [subparagraph (a)], whereas the latter restriction does not apply for the engagement of staff ‘in Representations and Delegations of Community Institutions’ [subparagraph (d)]. Thus the allocation of essential tasks to contract staff engaged under Article 3a of the Conditions of Employment and required to perform their duties in a Delegation of an institution, particularly where the person concerned has been graded in the highest function group, should be more routine than in the case of contract staff engaged in an institution. However, the mere fact that the staff member concerned is graded in function group IV is not sufficient to conclude that the tasks he performs are essential. In the absence of any other evidence, that is a question that must be considered on the basis of the facts.

(see paras 87-88)