Language of document : ECLI:EU:F:2015:151

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

15 December 2015

Joined Cases F‑101/14, F‑102/14 and F‑103/14

Nicole Clarke and Others

v

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

(Civil service — Members of the temporary staff — OHIM staff — Fixed-term contract including termination clause — Clause terminating the contract in the event of the member of staff not being included in a competition reserve list — Date on which the termination clause takes effect — Open competitions OHIM/AD/01/13 and OHIM/AST/02/13 )

Application:      under Article 270 TFEU, by which Ms Clarke, Ms Dickmanns and Ms Papathanasiou seek, essentially, annulment of the decisions of 28 November 2013 by which the President of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM or ‘the Office’) decided that, pursuant to the termination clause contained in their contracts as members of the temporary staff, their non-inclusion in the reserve lists of open competitions OHIM/AD/01/13 and OHIM/AST/02/13 would lead to termination of their employment relationships with the Office.

Held:      The actions are dismissed. Ms Clarke, Ms Papathanasiou and Ms Dickmanns shall bear their own costs and are ordered to bear 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) shall bear half of its own costs.

Summary

1.      Actions brought by officials — Acts adversely affecting an official — Concept — Decision putting into effect a termination clause in a temporary staff contract making the continuation of the employment relationship subject to the inclusion of the member of staff in the reserve list of an open competition — Included

(Staff Regulations, Art. 90(2))

2.      Officials — Members of the temporary staff — Termination of a contract for a fixed period — Contract containing a termination clause applicable in the event of non-inclusion on a reserve list drawn up on the conclusion of an open competition with the specialisation ‘industrial property’ — Competition notice requiring specialisation in the field of intellectual property — Applicability of the clause

3.      Officials — Recruitment — Assignment of grade and classification in step — Member of the temporary staff appointed as an official — Account to be taken of professional experience as a former member of the temporary staff — None — Not possible to rely on an infringement of the principle of equal treatment

(Staff Regulations, Art. 32 and Annex XIII, Art. 5(4); Conditions of Employment of Other Servants, Art. 8)

4.      Officials — Members of the temporary staff — Recruitment — Contract for a fixed period containing a clause providing for termination in the event of the member of staff not being included in the reserve list of an open competition — Reinstatement of a member of the temporary staff following annulment of the decision putting the termination clause into effect — Reinstatement of a member of staff effected under a new contract — Reinstatement not to be analysed as a further renewal of a contract for a fixed period

(Conditions of Employment of Other Servants, Art. 2(a) and (b), Art. 8, paras. 1 and 2; Council Directive 1999/70, Annex, clause 5(1))

1.      In accordance with Article 90(2) of the Staff Regulations, both the prior administrative complaint and the action before the courts must be directed against an act adversely affecting the applicant which produces legal effects which are binding on, and capable of affecting, directly and immediately, the interests of the applicant by bringing about a distinct change in his legal position.

Thus, the decision giving effect, as regards the person concerned, to the termination clause contained in his contract as a member of the temporary staff, on the basis of the publication of a competition notice, is such as to adversely affect him in so far as such a clause makes the continuation of his employment relationship dependent on his inclusion in the reserve list of the competition to which that notice relates. This is particularly so having regard to the fact that the person concerned would be in a position of uncertainty as to whether he would be included in the reserve list drawn up following the open competition held by the European Personnel Selection Office.

(see paras 44, 45)

See:

Judgment of 13 July 2000 in Hendrickx v Cedefop, T‑87/99, EU:T:2000:191, paragraph 37

Judgment of 20 May 2010 in Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, paragraph 46

Judgment of 14 April 2011 in Clarke and Others v OHIM, F‑82/08, EU:F:2011:45, paragraphs 54, 74, 76 and 81

2.      The wording of a termination clause contained in a contract as a member of the temporary staff, providing for the contract to be terminated in the event of non-inclusion of the member of the temporary staff in the reserve list for the next open competition for his function group with the specialisation ‘industrial property’ to be held by the European Personnel Selection Office, does not preclude a competition held in the field of intellectual property from being legitimately included in the provisions of the contract of the member of staff, as the specialisation ‘industrial property’ is an integral part of the field of intellectual property.

It follows that a competition notice relating to specialists in the field of intellectual property may be included within the provisions of the termination clause, having regard not only to the content of the notice, which establishes the theoretical framework for the tests, but also to the circumstances in which the tests were actually conducted, those circumstances being assessed in the light of the evidence before the court and the opposing submissions of the parties.

(see para. 57)

3.      A decision giving effect to a termination clause contained in the contract of a member of the temporary staff, making the continuation of the employment relationship subject to his inclusion on the reserve list of an open competition, does not directly or immediately operate to establish him in the function group and grade for which a competition has been initiated. Consequently, it does not assist the person concerned to argue that such a decision infringes the principle of equal treatment on the ground that it establishes him in the same grade as those without experience, notwithstanding the professional experience which he has.

In any event, the decision to join the civil service of the Union by means of a competition or by means of a contract of employment is a matter for which the person concerned is solely responsible. That decision is liable to have repercussions on the career path followed, as an official, by a person formerly employed under a contract; such repercussions cannot be imputed to the appointing authority. It cannot be accepted that the principle of equal treatment of candidates in a competition can be infringed by reason of the existence of differences which arise from the individual circumstances of each candidate.

(see para. 94)

See:

Judgment of 5 April 2005 in Hendrickx v Council, T‑376/03, EU:T:2005:116, paragraph 33

Judgment of 17 October 2013 in Vasilev v Commission, F‑77/12, EU:F:2013:150, paragraph 31

4.      A member of staff, bound by a contract without security of employment incorporating a termination clause permitting the administration to terminate the contract in the event that he fails in an open competition, cannot be restricted to challenging that clause at the time of signature of the contract. Since the inclusion of the termination clause forms part of a complex operation involving a number of decisions, individual or general in scope, the member of staff concerned must be able to challenge indirectly the legality of that clause, appearing in his reinstatement protocol, even if it is of individual scope, when the administration adopts a decision triggering the clause in relation to him.

In relation to a member of staff who is to be reinstated, on the basis of Article 266 TFEU, as a measure to comply with a judgment annulling the decision to put the termination clause into effect in relation to him, such reinstatement takes place under the previous contract as a member of the temporary staff and not under a new contract. The effect of reinstatement is to place the member of staff concerned back into the course of performance of that contract retrospectively, as of the date when the termination decision took effect. Where that contract is to be analysed as a first renewal within the meaning of the first paragraph of Article 8 of the Conditions of Employment of Other Servants, the reinstatement protocol cannot constitute a second renewal within the meaning of that provision.

In relation to a member of staff whose reinstatement has been effected under a new contract, the rule set out in the first paragraph of Article 8 of the Conditions of Employment of Other Servants relates to the situation of a member of the temporary staff who, after entering into two successive fixed-term contracts, continues, without interruption, his employment relationship with a given institution or agency. Accordingly, the reinstatement protocol of that member of staff cannot constitute a further renewal, within the meaning of the first paragraph of Article 8 of those conditions, of a first contract as a member of the temporary staff under Article 2(a) of those conditions, since the employment relationship of the member of staff has been interrupted by reason of the termination of the previous contract almost two years before signature of the protocol.

For the sake of completeness, in relation to the interpretation of the first paragraph of Article 8 of the Conditions of Employment of Other Servants, having regard to the objectives of Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, that provision is intended to limit the use of successive temporary staff contracts and is, in any event, among the measures referred to in clause 5(1) of that framework agreement, capable of preventing abuse arising from the use of successive fixed-term employment contracts or relationships.

(see paras 104, 106-110)

See:

Judgment of 15 September 2011 in Bennettand Others v OHIM, F‑102/09, EU:F:2011:138, paragraphs 65, 80, 105, 106 and 112