Language of document : ECLI:EU:F:2009:128


(Second Chamber)

29 September 2009

Joined Cases F-69/07 and F-60/08



Commission of the European Communities

(Civil service – Contract staff – Article 88 of the Conditions of Employment – Stability of employment – Article 100 of the Conditions of Employment – Deferral of medical cover – Article 39 EC – Freedom of movement for workers)

Application: brought under Articles 236 EC and 152 EA, in which O seeks annulment, in Case F‑69/07, of the decisions of the Commission fixing her conditions of employment as a member of the contract staff for auxiliary tasks, in that they defer medical cover, as provided for in the first paragraph of Article 100 of the Conditions of Employment of Other Servants of the European Communities, and in that they limit the duration of her contract to 15 September 2009; in Case F‑60/08, of the decision of the Commission of 7 September 2007 to defer her medical cover, as provided for in Article 100 referred to above.

Held: The Commission’s decision of 14 September 2006 is annulled in that it defers the applicant’s medical cover. The application in Case F‑69/07 O v Commission is dismissed for the remainder as unfounded. The application in Case F‑60/08 O v Commission is dismissed as inadmissible. In Case F‑69/07, the Commission is ordered to bear its own costs and to pay half of the applicant’s costs. The applicant is ordered to bear half of her costs in Case F‑69/07 and to bear her own costs and pay the costs of the Commission in Case F‑60/08. The Council of the European Union, intervener for the Commission, is ordered to bear its own costs in both cases.


1.      Officials – Legal remedy – Prior administrative complaint – Premature complaint – Complaint lodged before exhaustion of the procedure laid down in Article 100 of the Conditions of Employment of Other Servants – Not included

(Staff Regulations, Art. 90(2); Conditions of Employment of Other Servants, Art. 100)

2.      Officials – Actions – Prior administrative complaint – Characterisation for the courts to assess

(Staff Regulations, Art. 90(2))

3.      Actions for annulment – Action against a decision purely confirming a previous decision – Applications brought against both a confirmed decision and a confirmatory decision in the same action – Admissibility in certain circumstances

(Art. 230, fourth para., EC)

4.      Social policy – ETUC, UNICE and CEEP framework agreement on fixed-term work – Directive 1999/70 – Stability of employment

(Council Directive 1999/70, Annex)

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

(Conditions of Employment of Other Servants, Arts 3b and 88; Council Directive 1999/70, Annex, Clause 5, para. 1)

6.      Officials – Decision adversely affecting an official – Obligation to state the reasons on which the decision is based – Scope

(Staff Regulations, Art. 25, second para.)

7.      Officials – Social security – Invalidity pension – Optional exclusion period provided for in Article 100 of the Conditions of Employment of Other Servants

(Art. 39 EC; Conditions of Employment of Other Servants, Art. 100)

8.      Actions for annulment – Pleas in law – Plea raised by the court of its own motion

(Conditions of Employment of Other Servants, Art. 100)

1.      A complaint as provided for in Article 90(2) of the Staff Regulations and a subsequent action before the Civil Service Tribunal cannot be deemed premature on the ground that that complaint was submitted before the procedure provided for in Article 100 of the Conditions of Employment of Other Servants had been exhausted. Like any medical committee, the Invalidity Committee provided for in Article 9(1)(b) of the Staff Regulations is competent solely to issue an opinion on all the relevant elements covered by an assessment of a medical nature, to the exclusion of any assessment of a legal nature. The appeal to the Invalidity Committee provided for in the second paragraph of Article 100 of the Conditions of Employment can therefore have as its subject-matter only a dispute of a medical nature and a member of staff cannot be required to exhaust that procedure if his challenge is not of a medical nature.

(see paras 37, 38, 43)


76/84 Rienzi v Commission [1987] ECR 315, paras 9 to 12

T-4/96 S v Court of Justice [1997] ECR II‑1125, paras 41 and 59

2.      An act adversely affecting a member of staff may form the subject-matter of only a single complaint, brought against it by the member of staff concerned. Where two complaints have the same subject-matter, only one of them, namely the first to have been submitted, constitutes a complaint for the purposes of Article 90 of the Staff Regulations, while the other, introduced subsequently, is to be regarded as purely reiterative of the complaint and cannot have the effect of prolonging the procedure. Consequently, the decision rejecting that purported second complaint is purely confirmatory and therefore not actionable.

(see paras 45, 48)


T-14/91 Weyrich v Commission [1991] ECR II‑235, para. 41; T‑67/91 Torre v Commission [1992] ECR II‑261, para. 2; T-66/05 Sack v Commission [2007] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, paras 37 and 41

3.      The case-law establishing that an action for annulment brought against a confirmatory decision is inadmissible only if the confirmed decision has become final vis-à-vis the person concerned without any action having been brought within the prescribed period, while, in the opposite case, the applicant is entitled to contest either the confirmed decision or the confirmatory decision, or both, cannot be applied where the confirmed decision and the confirmatory decision are contested in two separate actions and the applicant can defend his point of view and put his arguments in the first action.

(see para. 50)


T-354/00 Métropole télévision‑M6 v Commission [2001] ECR II‑3177, para. 35

4.      Although, according to point 10 of the general considerations of the framework agreement on fixed-term work, contained in the annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, that agreement contains ‘general principles, minimum requirements and provisions’, it follows from recital 14 of Directive 1999/70, and likewise from the third paragraph of the preamble to the framework agreement, point 9 of the general considerations and clauses 1 and 4, however, that the principles in question are the principle of non-discrimination, including the principle of equal treatment for men and women, and the principle of the prohibition of abuse of right. As regards clause 5(1) of the framework agreement, it sets out the minimum requirements designed to place limits on recourse to successive fixed-term employment contracts or relationships, and thus to avoid the improper use of such contracts, and also to prevent the status of the beneficiaries of such contracts from being insecure. Such provisions affording minimum protection do indeed constitute rules of Community social law of particular importance, but without establishing stability of employment as a general principle against which the legality of an act of an institution must be measured. Although stability of employment is seen as a major element in the protection of workers, it does not follow from the framework agreement that it has been established as a binding rule of law. Furthermore, the framework agreement does not lay down a general obligation to provide that, after fixed-term contracts have been renewed a certain number of times or a certain period of work has been completed, those contracts are to be converted into an indefinite contract. While stability of employment cannot therefore be considered to be a general principle, it does, on the other hand, constitute an aim pursued by the parties signatory to the framework agreement, clause 1(b) of which has as its purpose to ‘establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships’.

(see paras 74-76)


C-144/04 Mangold [2005] ECR I‑9981, para. 64; C-212/04 Adeneler and Others [2006] ECR I‑6057, paras 63 and 91; C-53/04 Marrosu and Sardino [2006] ECR I‑7213, para. 47; C-307/05 Del Cerro Alonso [2007] ECR I‑7109, para. 27; C-268/06 Impact [2008] ECR I‑2483, para. 87; C-378/07 to C-380/07 Angelidaki and Others [2009] ECR I‑3071, paras 73, 105 and 183; order of 24 April 2009 in C-519/08 Koukou, not published in the ECR, paras 53 and 85

F-65/07 Aayhan and Others v Parliament [2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 114 and 115

5.      In view of the characteristics inherent in the activities referred to by Article 3b of the Conditions of Employment, Article 88 of those Conditions of Employment does not undermine the aims of the framework agreement on fixed-term work, contained in the annex to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, and the minimum requirements of clause 5 of that agreement. Clause 5(1) of the framework agreement provides only that Member States are under an obligation to introduce into their legal orders one or more of the measures set out in points (a) to (c), which include, in point (a), ‘objective reasons justifying the renewal of such [fixed-term employment] contracts or relationships’. Each post as a member of the contract staff for auxiliary tasks must, pursuant to Article 3b of the Conditions of Employment, specifically meet temporary or intermittent needs. Furthermore, in an administration with a large workforce like that of the Commission, it is inevitable that such needs will recur, inter alia as a result of the unavailability of officials, increases in workload in particular circumstances or the need for each directorate-general to have recourse occasionally to persons with specific qualifications or knowledge; and all those circumstances constitute objective reasons justifying both the fixed-term nature of the contracts of members of the auxiliary staff and the renewal of such contracts as and when the needs in question arise.

(see para. 77)


F‑134/07 and F‑8/08 Adjemian and Others v Commission [2009] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, paras 119 to 136

6.      Although the statement of reasons on which a decision is based is not required to be exhaustive, it must allow the Community judicature to exercise its review of the legality of the contested decision and provide the person concerned with sufficient information to know whether the decision in question is well founded or whether it is vitiated by a defect which enables its legality to be challenged. Thus, the institutions cannot be required to discuss all the points of fact or of law relied upon, particularly if relied upon superficially, during the administrative procedure.

(see para. 90)


T-372/00 Campolargo v Commission [2002] ECR-SC I‑A‑49 and II‑223, para. 49; T-406/04 Bonnet v Court of Justice [2006] ECR-SC I‑A‑2‑213 and II‑A‑2‑1097, para. 67

7.      Article 100 of the Conditions of Employment provides an option for the contracting authority to defer medical cover, when a member of the contract staff becomes affiliated to the Community social security scheme, where the existence of sickness or invalidity affecting that member of staff is revealed during the pre-employment medical examination. The period of exclusion from sickness or death cover relating to that sickness or invalidity lasts five years.

That provision is such as to produce a deterrent effect on a person who, having left his State of origin where he had completed part of his professional career in order to work within a Community institution, was subsequently, owing to the conversion of his contract as a member of the auxiliary staff into a contract as a member of the contract staff, which was made compulsory by the reform of the Staff Regulations, and to the subsequent change in the applicable social security scheme, either in the position of being forced to suffer the loss of the advantage of invalidity benefits which he was guaranteed under the previously applicable legislation of his host Member State, but without acquiring a right to Community benefits which he would have been able to claim if the periods of insurance which he had previously completed under the legislation of the host Member State and with the same employer were taken into account; or obliged, upon expiry of his contract as a member of the auxiliary staff, to give up the pursuit of his employment with the Community institution concerned, for which he had specifically left his country of origin.

In such a case, the application of Article 100 of the Conditions of Employment constitutes an obstacle to the exercise of the rights conferred by Article 39 EC, without any evidence that that obstacle is necessary to the pursuit of an objective in the public interest, that it is appropriate to ensuring the attainment of that objective and that it does not go beyond what is necessary to attain the objective pursued.

It follows that it is for the contracting authority, when dealing with the situation of a person in such a case, not to exercise the option provided for in Article 100 of the Conditions of Employment, in order not to deprive that person of social security advantages which he would have been entitled to claim if he had continued to be covered under the laws of his State of origin or his host Member State.

(see paras 112, 131, 136, 138-140)


C-212/06 Gouvernement de la Communauté française and Gouvernement wallon [2008] ECR I‑1683, paras 36 to 42, 48, 52 and 55

8.      The limitation of the power of the Community judicature to raise a plea of its own motion is a consequence of its obligation to confine itself to the subject-matter of the dispute and to base its decision on the facts adduced before it. That limitation is justified by the principle that it is for the parties to take the initiative in the proceedings, such that the court may act of its own motion only in exceptional instances involving the public interest.

In defining the legal framework within which a provision of secondary law must be interpreted, the Community judicature does not rule on the lawfulness of that provision by reference to higher rules of law, including those of the Treaty, but seeks the interpretation of the provision at issue which makes its application as compatible as possible with primary law and as consistent as possible with the legal framework within which it falls.

It follows that, by interpreting Article 100 of the Conditions of Employment, in particular, in the light of the requirements flowing from freedom of movement for workers, enshrined in Article 39 EC, the Civil Service Tribunal does not stray beyond the limits of the dispute as circumscribed by the applicant and does not rely on facts and circumstances other than those on which he based his action.

(see paras 143-144)


C-222/05 to C-225/05 van der Weerd and Others [2007] ECR I‑4233, paras 34 to 36