Case C-409/02 P: Appeal by Jan Pflugradt against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 22 October 2002 in Joined Cases T-178/00 and T-341/00, Jan Pflugradt v European Central Bank, lodged on 18 November 2002
Date: 2003-01-25
Institutions: Court of Justice
Subjects: European Central Bank, General Court (EU), action for annulment (EU), contract terms, labour law, servant (EU), work contract

25.1.2003

EN

Official Journal of the European Communities

C 19/15

According to the Commission, the contract ‘Renewal of the
town of Serres: framework of investigative study models and
is a public service contract
pilot realisation programme’
falling within the directive given its subject-matter and value.
Nevertheless, the contract was not put out to tender but was
awarded directly by the municipality of Serres to the Aristotle
University of Thessaloniki.

2.

annul the decision of the respondent (ECB) in its letter of
28 June 2000 altering the responsibilities assigned to the
appellant;

3.

order the ECB to pay the costs.

The Commission further maintains that in the present case
neither the exception in Article 6 of the directive (contract
with an entity which is itself a contracting authority within the
meaning of the directive) nor the exception in Article 1(a)(ix)
is applicable.

( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (OJ L 209, 24.7.1992, p. 1).

Appeal by Jan Pflugradt against the judgment of the Court
of First Instance of the European Communities (Fifth
Chamber) of 22 October 2002 in Joined Cases T-178/00
and T-341/00, Jan Pflugradt v European Central Bank,
lodged on 18 November 2002

(Case C-409/02 P)

(2003/C 19/26)

An appeal against the judgment delivered on 22 October 2002
by the Fifth Chamber of the Court of First Instance of the
European Communities in Joined Cases T-178/00 and T-341/
99, Jan Pflugradt v the European Central Bank, was brought
before the Court of First Instance of the European Communities
on 18 November 2002 by Jan Pflugradt, represented by Dr
Norbert Pflüger, 44 Kaiserstraße, D-60329 Frankfurt am Main,
with an address for service in Luxembourg.

The appellant claims that the Court should, on setting aside
the judgment appealed against (1)

1.

annul the appellant’s performance appraisal report for
1999 dated 23 November 1999;

Pleas in law and main arguments

— The judgment appealed against mistakes the scope and
structure of the EBC’s functional autonomy under the
contractual system established by Article 36.1 of the
ESCB Statute and the first sentence of Article 9(a) of the
Conditions of Employment. Owing to that error of law
that judgment was based on the supposition that under
the contractual system the ECB had the same wide
discretion as is available to employers in the use of
staff under the law governing officials of the European
Communities. That discretion relating to the use of staff
is, however, to be distinguished from discretion in terms
of operational organisation. The Court of First Instance
was wrong to consider the ECB entitled to disregard the
applicant’s job description which had become a part
of the contract and to withdraw contractually agreed
responsibilities from him. In accordance with principles
governing the law concerning officials, the Court of First
Instance should not have had regard to whether the
tasks withdrawn constituted ‘essential elements’ of the
contractually agreed area of activity.
It should have
inquired into whether those tasks were contractually laid
down.

In the event that the contractually agreed employment
cannot be continued because of cessation of employment,
Article 11(a)(ii) provides for the possibility of dismissal for
organisational reasons. That provision therefore makes it
clear that it is not permissible unilaterally to alter the
terms of the contract in order to enable employment
relations to be ‘developed further’ in disregard of contrac-
tual agreements. It is not permissible to leave to the ECB
as the employer from the point of view of employment
law the decision on the application of two different
arrangements which in the end are contradictory. If that
were the case, the ECB could — in certain cases even
arbitrarily — choose between termination of contract
under Article 11(a)(ii) of the Conditions of Employment
and continuation of the contract in disregard of contrac-
tual agreements.

The Court of First Instance described the appellant’s
responsibility for appraisal of the members of the UNIX
team as not an essential element of the contract of
employment, although in the job description it is termed
a ‘key responsibility’. The Court of First Instance also
misconstrued the job description by assuming it
to
constitute merely a provisional assignment of responsi-
bilities.

— Infringement of the rules concerning evidence.

(1) Not yet published in the Official

Journal of

the European

Communities.