JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

2 March 2016

Case F‑60/15

José Luis Ruiz Molina

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Civil service — Temporary staff — OHIM staff — Fixed-term contract with a termination clause — Clause terminating the contract in the event that the member of staff is not included on a reserve list of a competition — Termination of the contract pursuant to the termination clause — Date on which the termination clause takes effect — Open Competitions OHIM/AD/01/13 and OHIM/AST/02/13)

Application:      under Article 270 TFEU, in which Mr Ruiz Molina essentially seeks annulment of the decision of 4 June 2014 by which the President of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) terminated his contract as a member of the temporary staff at the end of a six-month notice period.

Held:      The action is dismissed. Mr Ruiz Molina is to bear his own costs and is ordered to pay half of the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs). The Office for Harmonisation in the Internal Market (Trade Marks and Designs) is to bear half of its own costs.

Summary

1.      Actions brought by officials — Act adversely affecting an official — Definition — Clause in the contract of a member of the temporary staff making the continuation of the employment relationship conditional on the staff member’s inclusion on the reserve list of an open competition — Included

(Staff Regulations, Art. 90(2))

2.      Officials — Protection of health and safety — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70 — Obligation for the Member States to introduce measures to prevent the misuse of successive fixed-term employment contracts — Termination of a fixed-term contract — No infringement

(Council Directive 1999/70, Annex, Clauses 1(b) and 5(1)(a))

3.      EU law — Principles — Equal treatment — Limits — Difference in treatment where favourable treatment is unlawfully granted to another person — No infringement

1.      A staff member bound by a precarious contract containing a termination clause making the continuation of the employment relationship conditional on the staff member’s inclusion on the reserve list of an open competition cannot be required to challenge that clause as soon as the contract is signed. As the inclusion of the clause forms part of a complex operation, the staff member concerned must be able to challenge indirectly the legality of that clause, contained in his re-employment protocol, even if it is of individual scope, when the administration adopts the decision implementing it at the final stage of the operation.

(see para. 38)

See:

Judgment of 15 September 2011 in Bennett and Others v OHIM, F‑102/09, EU:F:2011:138, paras 65 and 80

2.      The framework agreement on fixed-term work, which is set out in the annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, does not concern the conditions for terminating fixed-term contracts or contracts of indefinite duration, but the conditions for the use of such contracts, in accordance with clause 1(b). In particular, clause 5(1)(a) of the framework agreement, according to which, to prevent abuse arising from the use of successive fixed-term employment contracts or relationships, the Member States must introduce, in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more measures, including objective reasons justifying the renewal of such contracts or relationships, may not be directly relied on against a decision to terminate a fixed-term contract, which has neither the purpose nor the effect of renewing the employment of the staff member concerned and which cannot therefore be, in itself, contrary to the provisions of the framework agreement.

(see para. 45)

3.      There is no equality in illegality, since the principle of non-discrimination does not found an entitlement to the non-discriminatory application of unlawful treatment.

(see para. 67)

See:

Judgment of 11 September 2002 in Pfizer Animal Health v Council, T‑13/99, EU:T:2002:209, paras 478 and 479