ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

21 February 2013

Case F-58/08

Chiara Avogadri

v

European Commission

(Civil service — Non-permanent staff — Articles 2, 3a and 3b of the Conditions of Employment — Members of the temporary staff — Members of the contract staff — Members of the contract staff for auxiliary tasks — Duration of the contract — Articles 8 and 88 of the Conditions of Employment — Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services — Directive 1999/70/EC — Applicability to the institutions)

Application: brought under Articles 236 EC and 152 EAEC, whereby Ms Avogadri and 12 other applicants seek annulment of the decisions of the European Commission fixing the conditions of their employment, in that their contracts or the extension thereof is limited to a fixed time.

Held: The action is dismissed as manifestly lacking any foundation in law. The applicants are to bear their own costs and are ordered to pay the costs incurred by the Commission. The Council of the European Union is ordered to bear its own costs.

Summary

1. Judicial proceedings — Decision taken by way of reasoned order — Conditions — Appeal manifestly inadmissible or manifestly lacking any foundation in law — Scope

(Rules of Procedure of the Civil Service Tribunal, Art. 76)

2. Acts of the institutions — Directives — Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Direct imposition of obligations on the institutions of the European Union in their relations with their staff — Whether applicable — Scope

(Art. 288 TFEU; Conditions of Employment of Other Servants, Arts. 8 and 88; Council Directive 1999/70)

3. Officials — Protection of health and safety — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent abuse of successive fixed-term contracts — Scope

(Council Directive 1999/70, Annex, Clause 5(1))

4. Officials — Members of the temporary staff — Protection of health and safety — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Stability of employment — Non-binding purpose — Termination of a contract concluded for an indefinite period — Whether permissible

(Art. 151 TFEU; Charter of Fundamental Rights of the European Union, Arts 30 and 31; Conditions of Employment of Other Servants, Arts 8 and 88; Council Directive 1999/70, recitals 6 and 7 and Annex, Clause 5(1)(b))

5. Officials — Protection of health and safety — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent abuse of successive fixed-term contracts — Objective reasons justifying the renewal of such contracts — Objective reasons — Concept — Application to members of the contract staff for auxiliary tasks

(Conditions of Employment of Other Servants, Arts 3a, 3b, 8 and 88; Council Directive 1999/70, Annex, Clause 5(1)(a))

6. Officials — Protection of health and safety — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Measures to prevent abuse of successive fixed-term contracts — Obligation to reclassify fixed-term contracts as a contract for an indefinite period — None

(Conditions of Employment of Other Servants, Arts 3a and 85(1) and (2); Council Directive 1999/70, Annex, Clause 5(2))

7. Officials — Members of the temporary staff — Decision to enter into or renew a contract of employment — Obligation to state reasons — Scope

(Art. 296 TFEU; Conditions of Employment of Other Servants)

1. Under Article 76 of the Rules of Procedure of the Civil Service Tribunal, where an action is, in whole or in part, manifestly inadmissible or manifestly lacking any foundation in law, the Tribunal may, by reasoned order, give a decision on the action without taking further steps in the proceedings.

The second situation referred to in that provision includes any action that is manifestly bound to fail for reasons relating to the substance of the case. The dismissal of such an action by reasoned order in application of Article 76 of the Rules of Procedure not only helps to reduce the duration of the proceedings, in particular where they have been unusually long, but also spares the parties the costs necessarily entailed if a hearing is held. Such a solution is all the more justified where the factual situation of the applicants, and also the pleas and legal arguments put forward, cannot be distinguished from those of another case in which the action has already been dismissed by the Courts of the European Union.

(see paras 30-31)

See:

27 September 2011, F-105/06 Lübking and Others v Commission, para. 41

2. As directives are addressed to Member States and not to the institutions of the Union, the provisions of Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, and the framework agreement annexed to that directive, cannot therefore be regarded as imposing as such obligations on the institutions in their relations with their staff. Consequently, the provisions of Directive 1999/70 which implement the framework agreement cannot as such found a plea of illegality against Articles 8 and 88 of the Conditions of Employment of Other Servants.

However, it cannot be precluded that the provisions of Directive 1999/70 may be relied on as against an institution in the relations with its officials and other staff where those provisions constitute the expression of a general principle of law.

(see paras 44, 46)

See:

21 September 2011, T-325/09 P Adjemian and Others v Commission (‘Adjemian II’), paras 51, 52 and 56

4 June 2009, F-134/07 Adjemian and Others v Commission (‘Adjemian I’), para. 87; 11 July 2012, F-85/10 AI v Court of Justice, para. 133

3. The framework agreement on fixed-term work annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP is designed to guarantee the principle of prevention of abuse of rights, in stating, in Clause 5(1), minimum requirements intended to prevent abuse arising from the use of fixed-term contracts. Those requirements do, indeed, constitute rules of European Union social law having particular importance, but they do not express general principles of law.

(see para. 49)

See:

Adjemian I, paras 96 and 97

4. While stable employment is regarded as a major element in the protection of workers, it does not constitute a general principle of law in the light of which the lawfulness of a measure adopted by an institution may be assessed. In particular, it by no means follows from Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP or from the framework agreement annexed thereto that stable employment has been made a general principle of law. Furthermore, recitals 6 and 7 to the directive, as well as the first paragraph of the preamble to and recital 5 to the framework agreement, highlight the need to achieve a balance between flexibility and security. Nor, moreover, does the framework agreement lay down a general obligation on the part of the employer, following a certain number of renewals of fixed-term contracts or completion of a certain period of work, to provide for the conversion of those contracts of employment into contracts of indefinite duration.

While stable employment cannot be considered to be a general principle of law, it does, on the other hand, constitute an aim pursued by the parties signatory to the framework agreement, Clause 1(b) of which provides that the purpose of the agreement is to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

That conclusion is not invalidated either by Articles 30 and 31 of the Charter of Fundamental Rights of the European Union or by the provisions of the European Social Charter, on the achievement and maintenance of as stable a level of employment as possible.

First, as regards the European Social Charter, while it follows from Article 151 TFEU that that Charter is to be a source of inspiration which the European Union must take into account when pursuing the objectives laid down in that article, it does not make the European Social Charter a rule against which the compatibility of EU legislation should be assessed.

Second, as regards the Charter of Fundamental Rights of the European Union, Article 30 thereof does not condemn the use of a series of fixed-term contracts. Moreover, the termination of a fixed-term contract simply because it has reached its expiry does not constitute dismissal in the proper sense for which particular reasons must be given as regards ability, conduct or the institution’s operational needs. Consequently, it cannot be inferred from Article 30 of the Charter that that article should preclude the application of Articles 8 and 88 of the Conditions of Employment of Other Servants and the Commission Decision of 20 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services or that it should be applied as a general principle of law or taken into consideration for the purpose of interpreting the content of Directive 1999/70.

(see paras 51-55)

See:

Adjemian I, paras 98 and 99 and the case-law cited

5. The concept of objective reasons, within the meaning of Clause 5(1)(a) of the framework agreement on fixed-term work annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be understood as referring to specific and actual circumstances characterising a given activity and, accordingly, of such a kind as to justify the use of successive fixed-term contracts in that particular context. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the characteristics inherent in those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State.

As regards the category of contract staff for auxiliary tasks within the meaning of Article 3b of the Conditions of Employment of Other Servants, the creation of which corresponds to specific needs, distinct from those covered by the category of contract staff referred to in Article 3a of those conditions of employment, each post as a member of the contract staff for auxiliary tasks must satisfy temporary or intermittent needs. The principal characteristic of contracts of employment as contract staff for auxiliary tasks is their insecurity over time, in keeping with the very purpose of such contracts, which is to arrange for occasional staff to perform duties which — by their nature or by virtue of the absence of a holder of the post — are insecure. In an administration with a large number of staff, such needs inevitably recur as a result, in particular, of officials’ unavailability, increased workloads because of circumstances or the need, for each directorate-general, occasionally to engage persons with specific qualifications or knowledge. Those circumstances constitute objective reasons justifying both the fixed term of the contracts of members of the auxiliary staff and the renewal of their contracts as and when those needs arise.

Likewise, in the light of the characteristics inherent in the activities of temporary staff for auxiliary tasks, the provisions of Articles 8 and 88 of the Conditions of Employment of Other Servants do not adversely affect the purposes of the framework agreement on fixed-term work or the minimum requirements of Clause 5(1)(a) thereof, since they must be interpreted with Article 3b of those conditions of employment, itself read in the light of that framework agreement.

(see paras 64, 65, 69-70)

See:

4 July 2006, C-212/04 Adeneler and Others, paras 69 and 70

Adjemian II, para. 86

Adjemian I, paras 128, 132 and 133

6. The framework agreement on fixed-term work annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP does not lay down a general obligation to provide, after a certain number of renewals of fixed-term contracts or the completion of a certain period of employment, for the conversion of those contracts into contracts for an indefinite period.

Admittedly, Article 85(1) and (2) of the Conditions of Employment of Other Servants fixes, as regards members of the contract staff referred to in Article 3a, the conditions in which successive contracts may lead to a contract for an indefinite period. That article is thus consistent with the objective pursued by Clause 5(2) of the framework agreement. However, the fact that the provisions applicable to members of the contract staff for auxiliary tasks does not provide for the conversion of successive fixed-term contracts into a contract for an indefinite period is still compatible with that clause in the absence of a general obligation in that sense.

(see paras 71-72)

See:

Adjemian I, para. 134

7. In the event of successive fixed-term contracts of employment, the authority authorised to conclude contracts of employment is not required to state reasons for every decision to enter into a new contract of employment or to renew the previous contract of employment for an indefinite period other than by reference to the relevant provisions of the Conditions of Employment of Other Servants and, where appropriate, to the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services.

(see para. 84)

See:

Adjemian II, para. 95