JUDGMENT OF THE CIVIL SERVICE TRIBUNAL
(Second Chamber)

15 September 2011


Case F‑7/10


Marc Galan Girodit

v

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

(Civil service – Members of the temporary staff – Article 8 of the Conditions of Employment – Clause terminating the contract if the member of staff is not included on a competition reserve list – Open competition OHIM/AST/02/07 – Act adversely affecting a person)

Application:      brought under Article 279 TFEU, applicable to the EAEC Treaty pursuant of Article 106a thereof, whereby Mr Galan Girodit seeks annulment of OHIM’s decision to terminate his employment as a member of the temporary staff.

Held:      OHIM’s decision of 12 March 2009 to terminate the applicant’s temporary staff contract is annulled. OHIM is ordered to bear its own costs and to pay the applicant’s costs.

Summary

1.      Officials – Actions – Act adversely affecting an official – Concept – Letter addressed to a member of the temporary staff reminding him of the date of expiry of his contract – Not included – Amendment of a contract – Decision not to renew a contract – Included

(Staff Regulations, Art. 90(2))

2.      Officials – Actions – Act adversely affecting an official – Concept – 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 – Decision of the administration establishing that the staff member has not been included on that list and implementing the termination clause – Included

(Staff Regulations, Art. 90(2))

3.      Officials – Members of the temporary staff – Recruitment – Amendment of a contract of fixed duration and insertion of a termination clause in the event that the staff member is not included on the reserve list of an open competition – Amendment to be analysed as the renewal of a fixed-term contract

(Conditions of Employment of Other Servants, Arts 2(a), (b) and (d) and 8, first and second paras; Council Directive 1999/70, Annex, Clauses 1(b), 3 point 1 and 5(1)(b) and (c))

1.      An act which contains no new factor by reference to a previous act merely confirms the previous act and for that reason cannot have the effect of causing time to run anew for the purpose of bringing an action. In particular, a measure which merely reminds a member of staff about the provisions of his contract relating to the date of expiry of the contract and containing no new factor by reference to those provisions is not an act adversely affecting that staff member.

Conversely, any amendment of a contract constitutes an act adversely affecting the person concerned, but only with respect to the provisions which have been amended, unless those amendments completely change the general structure of the contract. Likewise, where the contract is renewable, the decision taken by the administration not to renew it constitutes an act adversely affecting the person concerned, distinct from the contract in question and capable of forming the subject-matter of a complaint and an action within the periods prescribed in the Staff Regulations. Such a decision, which is adopted following a reconsideration of the interests of the service and of the situation of the staff member concerned, contains a new factor by reference to the initial contract and cannot be regarded as merely confirming that contract.

(see paras 32-35)

See:

10 December 1980, 23/80 Grasselli v Commission, para. 18; 9 July 1987, 329/85 Castagnoli v Commission, paras 10 and 11; 14 September 2006, C‑417/05 P Commission v Fernández Gómez, paras 45 to 47

2 February 2001, T‑97/00 Vakalopoulou v Commission, para. 14; 1 April 2003, T‑11/01 Mascetti v Commission, para. 41; 15 October 2008, T‑160/04 Potamianos v Commission, para. 21

15 April 2011, F‑72/09 and F‑17/10 Daake v OHIM, para. 36

2.      A letter by which the administration establishes the existence of an event or of a new situation and implements the consequences provided for in a rule or a contractual provision with regard to the persons concerned constitutes an act adversely affecting those persons, since it alters the legal position of those to whom it is addressed.

That is the case of a decision of the administration finding that the name of a member of the temporary staff has not been included on the reserve list of a specific open competition and implementing the termination clause in his contract, which entails the termination of the contract if a given event should occur, namely the drawing-up of the reserve list of the competition referred to in that clause, the date of which was necessarily uncertain at the time when the contract was made. That decision altering the legal position of the member of staff constitutes an act adversely affecting him, capable of forming the basis of a complaint and, where necessary, an action.

Thus, the temporary staff member is not required to challenge that clause as soon as the contract is signed, when it is uncertain that the conditions in which the clause should be applied will be satisfied. As the inclusion of the cancellation clause forms part of a complex operation, the staff member concerned must be able to challenge indirectly the legality of that clause, even if it is of individual scope, when the administration adopts the decision implementing it at a subsequent stage of the operation.

(see paras 40, 41, 59)

See:

Daake v OHIM, paragraph 34 et seq.

3.      The purpose of clause 1(b) of the framework agreement on fixed-term work annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP is to establish a framework to prevent abuse resulting from successive employment contracts or relationships and, from that aspect, it seeks to circumscribe the repeated use of fixed-term contracts of employment, which is regarded as a potential source of abuse to the disadvantage of workers, by laying down a number of provisions ensuring minimum protection with the intention of avoiding placing employees in a precarious position. The first and second paragraphs of Article 8 of the Conditions of Employment of Other Servants are specifically intended to limit the use of successive temporary staff contracts. First, a temporary staff contract, within the meaning of Article 2(a) of those Conditions of Employment, can be renewed only once for a fixed period, any further renewal of that contract being for an indefinite period. Second, a temporary staff contract within the meaning of Article 2(b) or (d) of the Conditions of Employment, the duration of which cannot exceed four years, can be renewed only once, for a maximum period of two years, provided that the possibility of renewal has been provided for in the initial contract, and upon expiry of his contract the staff member concerned can continue to be employed only if he has been appointed as an official. Such provisions correspond to the measures referred to in Clause 5(1)(b) and (c) of the framework agreement, which are designed to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

The fact that the temporary staff contract contained a termination clause, allowing the administration to terminate the contract where the staff member concerned has not been successful in a competition the organisation of which had been announced within a certain period, does not, notwithstanding the wording of the contract, enable it to be described as a contract for an indefinite period, which is characterised by the permanency of the post. The duration of a contract, as is apparent from point 1 of clause 3 of the framework agreement, may be determined not only by ‘reaching a specific date’, but also by ‘completing a specific task or the occurrence of a specific event’, such as the drawing-up of a reserve list for a specific competition, to which a number of possible consequences are attached, according to the wording of the staff member’s contract. Thus, where his name is not included on the reserve list, it follows from the wording of the contract that the contract will be terminated; the same would normally apply where the staff member was successful, since he would then be offered a post as an official, on the understanding that, should the offer be refused, the contract would also be terminated, in accordance with the wording thereof.

It follows that a decision of the administration implementing the termination clause in the staff member’s contract of employment in breach of the first paragraph of Article 8 of the Conditions of Employment must be annulled. After renewal, the temporary staff contract, within the meaning of Article 2(a) of the Conditions of Employment, between the administration and the staff member was again renewed for a fixed period, notwithstanding the wording of the first paragraph of Article 8 of the Conditions of Employment.

(see paras 62-64, 68-70)

See:

4 July 2006, C‑212/04 Adeneler and Others, para. 63

26 October 2006, F‑1/05 Landgren v ETF, para. 66