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Language of document : ECLI:EU:F:2009:43

JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

30 April 2009

Case F-65/07

Laleh Aayhan and Others

European Parliament

(Civil service – Session auxiliairies of the European Parliament – Admissibility – Pre-litigation procedure – Article 283 EC – Article 78 of the Conditions of Employment – Plea of illegality – Equal treatment – Stable employment – Directive 1999/70 – Fixed-term contracts – Possibility of relying on certain provisions)

Application: brought under Articles 236 EC and 152 EA, in which Ms Aayhan and 79 other former session auxiliaries of the Parliament seek, inter alia, annulment of the decision of the authority empowered to conclude contracts of employment of 20 April 2007 rejecting their purported ‘complaint’ of 19 December 2006 requesting that the successive fixed-term contracts concluded by each of them with the Parliament should be regarded as a single part-time contract for an indefinite period, that they should be reinstated on that basis within the Parliament and that they should receive compensation ‘representing’ the entitlement to paid leave which they acquired in respect of all the periods worked.

Held: The action is dismissed. Each party is ordered to bear its own costs.

Summary

1. Officials – Conditions of Employment of Other Servants – Auxiliary staff – Session auxiliairies of the Parliament subject to Article 78 of the Conditions of Employment of Other Servants

(Art. 283 EC; Conditions of Employment of Other Servants, Arts 3a, 3b and 78)

2. Acts of the institutions – Directives – Direct imposition of obligations on the Community institutions in their relations with their staff – Not included – Possibility of relying on certain provisions – Scope

(Arts 10 EC and 249 EC)

3. Social policy – ETUC, UNICE and CEEP framework agreement on fixed-term work – Directive 1999/70 – Imposition of obligations on the Community institutions in their relations with their staff

(Arts 10 EC and 249 EC; Staff Regulations, Art. 1e(2); Conditions of Employment of Other Servants, Arts 10, first para., and 80(4); Council Regulation No 723/2004; Council Directive 1999/70)

4. Social policy – ETUC, UNICE and CEEP framework agreement on fixed-term work – Directive 1999/70 – Measures to prevent abuse of successive fixed-term employment contracts – Objective reasons justifying the renewal of such contracts

(Council Directive No 1999/70, Annex, clause 5(1)(a); Conditions of Employment of Other Servants, Art. 78)

1. Article 78 of the Conditions of Employment of Other Servants of the European Communities permits a derogation from the conditions applying to auxiliary staff, as laid down in Title III of those Conditions of Employment, in that it allows the Parliament, up until 31 December 2006, to limit the period of engagement of auxiliary staff needed for the organisation of its sessions to the duration of the work of such sessions. The conditions relating to auxiliary staff cannot in principle apply to engagements each of which is of short duration but which recur frequently from year to year. However, those session auxiliaries are covered by Title III of the Conditions of Employment, which is derogated from only as regards the conditions of recruitment and remuneration of such staff, as laid down in the agreement between the Parliament, the Council of Europe and the Assembly of Western European Union in respect of engagement of such staff. That means that the other provisions of Title III, concerning in particular working conditions and social security, continue to apply, regardless of the specific internal rules, adopted by the Bureau or the Secretary-General of the Parliament, designed to implement or supplement the rules contained in the Conditions of Employment.

Article 78 of the Conditions of Employment of Other Servants is therefore not contrary to Article 283 EC. The reference back, so far as the conditions of recruitment and remuneration of session auxiliaries are concerned, to the above agreement does not constitute an abdication by the legislature of the exercise of the power conferred on it by Article 283 EC to lay down the Staff Regulations and Conditions of Employment. On the contrary, it is in the exercise of precisely that power that the Council, taking into account the common interests and needs of three European organisations to ensure the proper functioning of sessions of their decision-making bodies, decided that it should align the conditions for the recruitment and remuneration of staff recruited for the duration of the work of the sessions of the Parliament with those agreed between the three institutions or organisations in question, subject to review by the budgetary authorities as provided in the second paragraph of Article 78 of the Conditions of Employment.

That provision also does not infringe the principle of equal treatment, since the situation of staff recruited in order to meet intermittent needs for large numbers of support staff, encountered by the Parliament only for the duration of its sessions, is not comparable to that of staff recruited to meet continuous everyday needs which require the presence of personnel comprising officials and, where appropriate, members of the temporary staff or the contract staff within the meaning of Articles 3a or 3b of the Conditions of Employment.

(see paras 85, 86, 97-100, 103)

See:

43/84 Maag v Commission [1985] ECR 2581, para. 19

2. Directives addressed to the Member States and not to the Community institutions cannot be treated as imposing any obligations on the institutions in their relations with their staff. However, that consideration does not in itself totally preclude a directive being relied upon in relations between institutions and their officials or servants. The provisions of a directive may, in the first place, be indirectly applicable to an institution if they constitute the expression of a general principle of Community law that it must then apply as such. Secondly, a directive may be binding on an institution where the latter, within the scope of its organisational autonomy and within the limits of the Staff Regulations, has sought to carry out a specific obligation laid down by a directive or in the specific instance where an internal measure of general application itself expressly refers to measures laid down by the Community legislature pursuant to the Treaties. Thirdly, the institutions, in accordance with their duty to cooperate in good faith under the second paragraph of Article 10 EC, must take into account, in their conduct as employers, legislative provisions adopted at Community level.

(see paras 111-113, 116, 118, 119)

See:

C-262/97 Engelbrecht [2000] ECR I‑7321, para. 38; C-25/02 Rinke [2003] ECR I‑8349, para. 24

T-495/04 Belfass v Council [2008] ECR II‑781, para. 43

3. The provisions of Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and the provisions of that framework agreement cannot be treated, as such, as imposing any obligations on the Community institutions in their relations with their staff. Those provisions are also not indirectly applicable to the institutions as an expression of a general principle of Community law, since it by no means follows from the directive or the framework agreement that stable employment has been made a binding rule of law. Finally, the provisions are also not covered, regarding appropriate health and safety standards to be met by the working conditions of officials, by the reference made in Article 1e(2) of the Staff Regulations to the minimum requirements applicable under measures adopted in the areas of health and safety pursuant to the Treaties, since the purpose of the directive is not to improve the working environment by increasing protection for the health and safety of the workforce properly speaking, but to approximate national law and practice in the field of working conditions in respect of the duration of employment relationships.

However, the institutions, in accordance with their duty to cooperate in good faith under the second paragraph of Article 10 EC, must take into account, in their conduct as employers, legislative provisions adopted at Community level laying down in particular minimum requirements designed to improve the living and working conditions of workers in the Member States through the approximation of national laws and practices and, in particular, the Community legislature’s intention to make stable employment a prime objective as regards labour relations within the European Union. That obligation is all the more significant since the administrative reform introduced by Regulation No 723/2004 reinforced the trend towards employment of staff under contract in the European civil service. As regards in particular the framework agreement, which seeks to approximate national laws and practices by laying down minimum requirements in respect of fixed-term working, it is therefore necessary for the institutions to interpret as far as possible the provisions of the Conditions of Employment in the light of the letter and purpose of the framework agreement in order to achieve the result the latter is intended to achieve.

It follows that Directive 1999/70 does not in itself provide the basis for a plea of illegality against a provision of the Council regulation laying down the Staff Regulations and the Conditions of Employment that conflicts with the framework agreement.

(see paras 111, 114, 116, 117, 119, 120, 122)

See:

Rinke, para. 24

Belfass v Council, para. 43

4. The European Parliament’s intermittent needs for large numbers of staff solely for the duration of its sessions constitute ‘objective reasons’ within the meaning of clause 5(1)(a) of the framework agreement on fixed-term work concluded on 18 March 1999, annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, such as to provide justification for using successive fixed-term contracts as a member of the auxiliary staff, renewed when each new parliamentary session is held, as provided for in Article 78 of the Conditions of Employment up until 1 January 2007. Such needs were foreseeable, but the additional activity was none the less sustained and permanent.

(see paras 134-135)

See:

C-212/04 Adeneler and Others [2006] ECR I‑6057, para. 69