JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Second Chamber)

29 April 2015

Case F‑78/12

Viara Todorova Androva

v

Council of the European Union

(Civil service — Promotion — 2011 promotion year — Non-inclusion in the list of officials eligible for promotion — Article 45 of the Staff Regulations — Two years’ seniority in the grade — Failure to take account of the period of work carried out as a member of the temporary staff — Difference in treatment due to the legal nature of the employment of the workers concerned — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Reliance — Exclusion)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Todorova Androva essentially seeks, first, annulment of the decision of the Council of the European Union not to include her in the list of officials eligible for promotion in the 2011 promotion year, and, second, compensation for the material and non-material harm which she claims to have suffered as a result of the illegality of that decision.

Held:      The action is dismissed. Ms Todorova Androva is to bear her own costs and is ordered to pay the costs incurred by the Council of the European Union. The European Commission and the European Court of Auditors are to bear their own costs.

Summary

1.      Officials — Promotion — Minimum seniority required in the grade — Calculation — Taking account of periods of work carried out as a member of the temporary staff — Not included

(Staff Regulations, Art. 45)

2.      Officials — Promotion — Minimum seniority required in the grade — Calculation — Exclusion of periods carried out as a member of the temporary staff — Infringement of Directive 1999/70 concerning the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — None

(Staff Regulations, Art. 45; Council Directive 1999/70, Annex, clause 4(1))

1.      In the promotion procedure, only seniority in the grade acquired as an official may be taken into account, particularly as the Conditions of Employment of Other Servants do not, in any event, provide for Article 45 of the Staff Regulations to apply in some way to the situation of temporary staff. According to the legislature, there is no legal continuity in the career of a member of the temporary staff who becomes an official.

(see paras 51, 54)

See:

Judgments in Bellantone v Court of Auditors, F‑85/06, EU:F:2007:171, para. 51; Toronjo Benitez v Commission, F‑33/07, EU:F:2008:25, para. 87, and order in Prieto v Parliament, F‑42/07, EU:F:2011:159, para. 61

2.      The principles of non-discrimination and equal treatment, of which clause 4(1) of the Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP is one application, constitute fundamental principles of the EU legal order in the light of which the lawfulness of Article 45 of the Staff Regulations must be assessed.

However, in the context of disputes between officials and the administrations of the Member States, any differences in treatment between staff covered by the Staff Regulations and contract staff do not come under the principle of non-discrimination enshrined in the Framework agreement, since such differences in treatment are based not on the fixed-term or permanent nature of the employment relationship, but rather on whether the employment relationship is governed by the Staff Regulations or is contractual in nature.

In that connection, with regard to the promotion procedure for officials, Article 45 of the Staff Regulations makes no difference in treatment between fixed-term workers and permanent workers. The only factor taken into consideration by Article 45 is the legal nature of the employment of the staff concerned, establishing a de facto difference in treatment between the seniority acquired by officials and the seniority acquired by other staff. That difference in treatment does not come under the principle of non-discrimination enshrined by the Framework agreement.

(see paras 61-63)

See:

Order in Rivas Montes, C‑178/12, EU:C:2013:150, paras 44, 45 and 47

Judgment in Aayhan and Others v Parliament, F‑65/07, EU:F:2009:43, para. 101