Case T-538/18: Action brought on 14 September 2018 — Dickmanns v EUIPO
Date: 2018-09-14
Institutions: General Court
Subjects: discretionary power, equal treatment, servant (EU), temporary employment, termination of a contract, termination of employment, work contract








C_2018399EN.01004801.xml










5.11.2018   


EN


Official Journal of the European Union


C 399/48






Action brought on 14 September 2018 — Dickmanns v EUIPO
(Case T-538/18)
(2018/C 399/63)
Language of the case: German

Parties


Applicant: Sigrid Dickmanns (Gran Alacant, Spain) (represented by: H. Tettenborn, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Form of order sought

The applicant claims that the Court should:






—


annul EUIPO’s determination communicated by its letter of 14 December 2017 that the applicant’s contract for temporary employment would end on 30 June 2018 and, to the extent necessary for the annulment of the determination referred to above, also annul the determinations communicated in EUIPO’s letters of 23 November 2013 and 4 June 2014;










—


order EUIPO to pay to the applicant compensation of a reasonable amount, at the Court’s discretion, in respect of the non-pecuniary and immaterial loss caused to the applicant by EUIPO’s decision referred to in the first point; and










—


order EUIPO to pay the costs.





Pleas in law and main arguments

In support of the action, the applicant relies on the following pleas in law:






1.


Manifest error of assessment, failure to exercise the Office’s discretion, infringement of the principles of non-discrimination and equal treatment, infringement of the principle of non-arbitrariness
The applicant complains that EUIPO unlawfully failed to exercise its discretion to renew for a second time the applicant’s employment contract in accordance with Article 2(f) of the Conditions of Employment of Other Servants of the European Union (‘CEOS’), or, in the alternative, failed to act a reasonable period of time prior to the end of the employment contract.










2.


Infringement of the Guidelines for the renewal of temporary agent contracts (‘the Guidelines’), the principle of sound administration, the principles of non-discrimination and equal treatment and the principle that the ending of the contract of a temporary agent under Article 2(a) or 2(f) CEOS requires a justifying ground (a ‘iusta causa’) and infringement of Article 30 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Council Directive 1999/70/EC, (1) the Framework Agreement (in particular Articles 1(b) and 5.1 thereof) and Article 4 of ILO Convention 158
The applicant takes the view that it should no longer have been permissible to exercise the ‘Termination Clause’ in her contract following the adoption of the Guidelines, as, once they have been introduced, they represent the applicable procedural methods of EUIPO with regard to the renewal of temporary agent contracts, and therefore prohibit the exercise of the ‘Termination Clause’.
Further, the applicant claims that a justifying ground for the termination of the contract must correspond to the budgetary nature of the relevant position.










3.


Infringement of the Guidelines, which also constitutes a significant procedural defect, infringement of the principles of non-discrimination and equal treatment, of the principle of sound administration and sound financial management, of the right of every person to be heard, before any individual measure which would affect him or her adversely is taken (Article 41(2)(a) of the Charter), of the Office’s duty to have regard for the welfare of its staff and of the duty to take into account the legitimate interests of the applicant, manifest error of assessment in its balancing of the applicant’s interests with those of the service, infringement of the principle of non-arbitrariness










4.


Infringement of the second and third sentences of the first paragraph of Article 8 CEOS and of the prohibition on repeated fixed-term employment
In this regard the applicant claims that, in a flagrant effort to avoid the legal consequences of the third sentence of the first paragraph of Article 8 CEOS, EUIPO repeatedly entered into contracts for the applicant’s fixed-term employment pursuant to Article 2(b) and 2(a) CEOS, despite the fact that the applicant’s activities remained unchanged during that time. Consequently, the applicant’s first contract remains valid for an unlimited period of time without a termination clause.










5.


Unlawful retention of a termination clause in the context of the Reinstatement Protocol and infringement of legitimate expectations, the applicant’s legitimate interests and the duty to have regard for the welfare of its staff when exercising the clause
By its fifth plea in law, the applicant complains that EUIPO should no longer have been able to exercise the termination clause after the long period of time that had elapsed since the signing of the contract in 2005.










6.


Infringement of the applicant’s legitimate expectations, of the duty of the Office to have regard for the applicant’s welfare and failure to take into account her legitimate interests, manifest error of assessment in the assessment of the interests of the service
In the sixth plea in law, the applicant complains that EUIPO’s decision not to renew her employment contract infringes her legitimate expectations, the Office’s duty to have regard for the applicant’s welfare and the applicant’s legitimate interests. At the same time, taking account of the applicant’s very good performance, it also represents a manifest error of assessment with regard to the interests of the service.










7.


Infringement of the terms of the termination clause in Article 5 of the applicant’s employment contract
In the seventh plea in law, the applicant complains that, when EUIPO exercised the termination clause, it wrongly applied Article 47(b)(ii) CEOS, instead of Article 47(c)(i), as is laid down in the termination clause, and that the notice period should have been 10 months, instead of the 6 month period established by EUIPO.






(1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ L 175, 10.7.1999, p. 43).