JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

14 April 2011

Case F-82/08

Nicole Clarke and Others

v

Office for Harmonisation in the Internal Market

(Trade Marks and Designs) (OHIM)

(Civil service — Members of the temporary staff — Article 8 of the Conditions of employment — Clause terminating the contract where the member of staff is not included on the reserve list of a competition — Open competitions OHIM/AD/02/07 and OHIM/AST/02/07 — Act adversely affecting an official — Principle of the performance in good faith of contracts — Duty to have regard for the welfare of officials — Principle of sound administration — Language requirements — Lack of powers of EPSO — Directive 1990/70/EC — Fixed-term employment)

Application: brought under Articles 236 EC and 152 EA, whereby Ms Clarke, Ms Papathanasiou and Ms Periañez-González, members of the temporary staff of OHIM, seek, in particular, first, annulment of OHIM’s decisions of 7 March 2008 rejecting their requests for the cancellation of the termination clause in their contracts of employment, containing the requirement that the member of staff concerned participate successfully in an open competition, and a declaration by OHIM that their contracts of employment of indefinite duration would be maintained; and, second, an order that OHIM pay damages.

Held: The decision of the Director of the Human Resources Department of OHIM of 19 December 2007 and the decisions of OHIM of 7 March 2008, in that the latter decisions rejected the applicants’ respective requests that the termination clause in their temporary staff contracts not be applied in respect of competitions OHIM/AD/02/07 and OHIM/AST/0107, are annulled. OHIM is ordered to pay each of the applicants the sum of EUR 2 000 by way of damages. The remainder of the application is dismissed. OHIM is ordered to bear its own costs and to pay the costs borne by the applicants.

Summary

1. Officials — Actions — Action brought against a decision not to admit the applicant to the tests in a competition — Possibility of relying on the unlawfulness of the competition notice

(Staff Regulations, Arts 90(2) and 91)

2. Officials — Actions — Conditions for admissibility — Examination by reference to the conditions laid down in the Staff Regulations

(Art. 230, fourth para., EC; Art. 263, fourth para., TFEU; Staff Regulations, Arts 90 and 91)

3. Officials — Actions — Acts adversely affecting an official — Concept — Clause in a temporary staff contract making the maintenance of the employment relationship subject to inclusion of the servant on the reserve list of an open competition — Included

(Staff Regulations Art. 90(2))

4. Officials — Organisation of departments — Assignment of the same duties to permanent posts and to temporary posts — Lawfulness

(Conditions of Employment of other servants, Art. 2(a) and (b))

5. Officials — Members of the temporary staff — Recruitment — Alteration of a fixed-term contract to a contract of indefinite duration and insertion of a termination clause applicable only where the servant is not included on the reserve list of an open competition — Alteration analysed as the renewal of a fixed-term contract

(Directive 1999/70, annex, clause 3(1); Conditions of Employment of other servants, Arts 2(a) and 8, first para.)

6. Officials — Members of the temporary staff — Contracts of indefinite duration with a termination clause applicable only where the servant is not included on a reserve list drawn up following an open competition — Competition notice providing for a much smaller number of posts to be filled than the number of such contracts — Inapplicability of the clause

7. Officials — Competitions — Conditions for admission — Equal treatment — Requirement for knowledge of specific languages — Lawfulness

8. Officials — Competitions — Organisation — Conditions for admission and procedures — Discretion of the appointing authority — Judicial review — Limits

(Staff Regulations, Art. 27, first para.)

9. European Personnel Selection Office (EPSO) — Conduct of competitions for the recruitment of officials — Role of EPSO — Assistance to the selection board — Subsidiary role by comparison with that of the selection board — Staff selection functions — None

1. Both the prior administrative complaint and the action before the Tribunal must, under Article 90(2) of the Staff Regulations, be directed against an act adversely affecting the applicant which produces legal effects which are binding on, and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position.

As regards competition notices, in the light of the special nature of the recruitment procedure, which is a complex administrative operation composed of a series of very closely-linked decisions, an applicant is entitled to rely on irregularities occurring in the course of a competition, even if the origin of those irregularities may be found in the wording of the competition notice itself, in an action against a subsequent individual decision, such as a decision not to admit him to the tests. A competition notice may also, exceptionally, be the subject of an action for annulment where, by imposing conditions excluding the applicant’s candidature, it constitutes a decision adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations.

(see paras 74, 79)

See:

8 March 1988, 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission, para. 15; 11 August 1995, C-448/93 P Commission v Noonan, paras 17 to 19

16 September 1993, T-60/92 Noonan v Commission, para. 21; 13 July 2000, T-87/99 Hendrickx v Cedefop, para. 37

2 July 2009, F-19/08 Bennett and Others v OHIM, para. 65 and case-law cited, and para. 66

2. In order to assess the admissibility of an action brought by an official, the Tribunal cannot apply or even be guided by the conditions set out in the fourth paragraph of Article 230 EC (now, after amendment, the fourth paragraph of Article 263 TFEU) and, in particular, the requirement that the contested measure be of individual concern to the official concerned, since those conditions define, essentially, the exercise of the right of natural and legal persons to bring an action against acts of general application, taking account of various circumstances of such a kind as to distinguish the applicant individually. It is appropriate, in accordance with the autonomy of disputes relating to the European Union civil service by reference to disputes governed by the general law on annulment and damages, to refer to the conditions of admissibility set out in the Staff Regulations.

(see para. 75)

See:

22 October 1975, 9/75 Meyer-Burckhardt v Commission, para. 7; 17 February 1977, 48/76 Reinarz v Commission and Council, para. 10; 7 October 1987, 401/85 Schina v Commission, para. 9

3. The inclusion in a temporary staff contract of a termination clause making the maintenance of the employment relationship depend on the name of the member of the temporary staff concerned being included on the reserve list of an open competition organised by the European Personnel Selection Office is of such a kind as to adversely affect that servant, in the light, at least, of the uncertainty as to whether he will appear on the reserve list drawn up following that competition. In those circumstances, the decision of the institution rejecting the request of the member of the temporary staff concerned that the termination clause in his contract be considered void or, in any case, that it not be applied to him with respect to a specific competition, so that he is not required to participate in that competition, is an act adversely affecting that person within the meaning of Article 90(2) of the Staff Regulations.

(see para. 76)

4. There is nothing, in principle, to prevent the administration from assigning the same duties to a permanent post or to a temporary post in the list of posts.

Thus, the administration cannot be criticised for having entered into a temporary staff contract on the basis of Article 2(b) of the Conditions of employment of other servants, having then terminated it by common agreement and replaced it by a contract within the meaning of Article 2(a) of those Conditions of employment in order to enable the staff member concerned to occupy a post included in the list of posts which the budgetary authorities have classified as temporary.

(see paras 113, 115)

5. An institution did not step beyond the bounds of the first paragraph of Article 8 of the Conditions of employment of other servants by amending a contract as a member of the temporary staff, within the meaning of Article 2(a) of those Conditions of employment, in order to cancel the fixed period of the contract and replace it by what is alleged to be an indefinite period and also to include a termination clause in the event that the member of staff is not included in the reserve list of a competition. Indeed, since the insertion of the clause does not enable the contract to be classified as a contract of indefinite duration, whatever the terms of the contract, such an amendment must be analysed as a first renewal for a fixed duration of a contract as a member of the temporary staff of fixed duration within the meaning of Article 2(a) of the Conditions of employment.

In addition, the duration of a contract, as is apparent from clause 3, paragraph 1, of the framework agreement annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, may be determined not only by reaching a specific date but also by completion of a specific task or the occurrence of a specific event, such as the establishment of a reserve list of a specific competition.

(see paras 113, 116, 117, 126)

6. In offering a number of members of staff who had successfully participated in internal selection procedures a temporary staff contract of indefinite duration, containing a termination clause applicable only where the members of staff concerned are not included on a reserve list drawn up following an open competition, thus giving a clear commitment to maintaining the persons concerned permanently within the institution provided that they appear on such a reserve list, and then limiting the number of successful candidates on the lists of suitable candidates drawn up following two competitions — open competitions, moreover — to the precise number of posts to be filled, the institution radically and objectively reduces the chances for the members of staff concerned, taken together, to avoid the application of the termination clause and, accordingly, renders the scope of its contractual commitments towards its temporary staff meaningless in part.

Consequently, the termination clause cannot be applied, following an open competition open to all nationals of the Member States, where the list of suitable candidates is so small that the prospects of the members of staff concerned avoiding its application were too slender, in the light of the commitment given by the institution to its temporary staff. In other words, unless the meaning of the contractual commitment given by the administration is distorted, such a list of suitable candidates does not fall within the terms of the termination clause.

(see paras 161, 162)

See:

Bennett and Others v OHIM, para. 116

7. The interest of the service may justify requiring a candidate in a competition to have specific knowledge of certain languages of the European Union, the level of linguistic knowledge that can be required in the recruitment procedure being that which is proportionate to the actual requirements of the service.

In that regard, in the context of the internal functioning of the institutions, a system of all-embracing linguistic pluralism would generate major management problems and would be financially unsustainable. The sound operation of the European Union’s institutions and bodies, particularly where the body concerned has limited resources, may thus objectively justify a limited selection of languages for internal communication.

(see paras 172, 173)

See:

19 June 1975, 79/74 Küster v Parliament, paras 16 and 20; 29 October 1975, 22/75 Küster v Parliament, paras 13 and 17; 15 March 2005, Opinion of Advocate General Poiares Maduro in C-160/03 Spain v Eurojust, point 47

5 April 2005, T-376/03, Hendricks v Council, para. 26

13 September 2010, T-156/07 and T-232/07 Spain v Commission, para. 75

Bennett and Others v OHIM, paragraph 137

8. The appointing authority has a broad discretion when determining the criteria of the abilities required for posts to be filled and when determining, according to those criteria and, more generally, in the interest of the service, the conditions and procedures for the organisation of a competition, in the light of the purpose of any competition organised within the European Union, which, as is clear from the first paragraph of Article 27 of the Staff Regulations, is to secure for the institution, as for any body, the services of officials of the highest standard of ability, efficiency and integrity. In those circumstances, review by the European Union judicature cannot go beyond ascertaining that the organisation of the tests was not manifestly inappropriate or disproportionate by reference to the aim pursued and that there has been no error of law or misuse of powers.

Likewise, the selection board for a competition or the selection committee in the context of an internal procedure has a broad discretion with respect to the procedure and the detailed content of the tests. It is not for the European Union judicature to criticise that content unless it is not confined within the limits laid down in the competition notice or is not consistent with the purposes of the test of the competition or the selection procedure.

(see paras 181, 182)

See:

5 February 1997, T-211/95 Petit-Laurent v Commission, para. 54; 12 June 1997, T-237/95 Carbajo Ferrero v Parliament, paras 47 and 48

15 April 2010, F-2/07 Matos Martins v Commission, para. 161 and case-law cited

9. Although the tasks assigned to the European Personnel Selection Office (EPSO) are such as to make that interinstitutional service an important actor in the determination and implementation of EU policy in the field of staff selection, its role as regards the conduct of recruitment competitions for officials, on the other hand, while significant to the extent that EPSO assists the selection board, necessarily remains subsidiary to the role played by the latter, which EPSO, moreover, may not replace.

A competition the first phase of which took place under the exclusive supervision of EPSO is therefore vitiated by illegality.

(see paras 199 and 204)

See:

15 June 2010, F-35/08 Pachitis v Commission, para. 58, on appeal before the General Court of the European Union, Case T-361/10 P