JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Third Chamber)
6 March 2013 (*)
(Civil service — Temporary staff — Termination of temporary staff contract for an indefinite period — Legitimate reason)
In Case F‑41/12,
ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,
Séverine Scheefer, former member of the temporary staff of the European Parliament, residing in Luxembourg (Luxembourg), represented by R. Adam and P. Ketter, lawyers,
applicant,
v
European Parliament, represented by V. Montebello-Demogeot and M. Ecker, acting as Agents,
defendant,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
composed of S. Van Raepenbusch (Rapporteur), President, I. Boruta and R. Barents, Judges,
Registrar: J. Tomac, Administrator,
having regard to the written procedure and further to the hearing on 10 October 2012,
gives the following
Judgment
1 By application received at the Tribunal Registry on 21 March 2012, Ms Scheefer in essence requests, first, the annulment of the decision of the European Parliament of 20 June 2011 terminating her temporary staff contract for an indefinite period and, secondly, an order that the European Parliament pay her damages.
Legal context
2 Article 29(2) of the Staff Regulations of Officials of the European Union (the ‘Staff Regulations’) provides:
‘A procedure other than the competition procedure may be adopted by the Appointing Authority for the recruitment of senior officials (Directors-General or their equivalent in grade AD 16 or AD 15 and Directors or their equivalent in grade AD 15 or AD 14) and, in exceptional cases, also for recruitment to posts which require special qualifications.’
3 Article 2 of the Conditions of Employment of Other Servants of the European Union (the ‘CEOS’) provides as follows:
‘For the purposes of these conditions of employment, “temporary staff” means:
(a) staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;
…’
4 Article 47 of the Conditions of Employment provides as follows:
‘Apart from cessation on death, the employment of temporary staff shall cease:
…
(c) where the contract is for an indefinite period:
(i) at the end of the period of notice stipulated in the contract; the length of the period of notice shall not be less than one month for each completed year of service, subject to a minimum of 3 months and a maximum of 10 months. The period of notice shall not, however, commence to run during maternity leave or sick leave, provided such sick leave does not exceed three months. It shall, moreover, be suspended during maternity or sick leave subject to the limits aforesaid;
…’
5 Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) implemented the framework agreement on fixed-term work concluded on 18 March 1999 between the general cross-industry organisations (‘the framework agreement’).
6 According to Clause 3 of the framework agreement:
‘1. For the purpose of this agreement the term “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.
…’
7 Article 7(2) to (4) of the Internal Rules on the Recruitment of Officials and Other Servants, adopted by the Parliament’s Bureau on 3 May 2004 (‘the Internal Rules’) provides that:
‘2. Without prejudice to the rules applicable to officials, temporary staff shall be recruited in order of ranking from among the candidates shortlisted following competitions or a recruitment procedure as provided for in Article 29(2) of the Staff Regulations …
3. Where no such candidates are available, temporary staff shall be recruited:
– following selection by an ad hoc committee including a member appointed by the Staff Committee, in the case of the temporary staff referred to in Article 2(a) of the CEOS;
– after the Joint Committee has delivered its opinion, in the case of the temporary staff referred to in Article 2(b) of the CEOS.
4. Notwithstanding the above provisions, the temporary staff referred to in Article 2(a) of the CEOS may be recruited in accordance with the procedure laid down in paragraph 3, second indent, of this article if the sole purpose of the recruitment is to fill posts temporarily until such time as they are filled in accordance with the provisions of paragraph 3, first indent, of this article.’
Facts
8 By a contract signed on 29 March and 4 April 2006 by the Parliament and the applicant respectively, the Parliament employed the applicant as a member of its temporary staff under Article 2(a) of the CEOS for the period from 1 April 2006 to 31 March 2007 and assigned her to a post as a doctor within the Luxembourg Medical Service (Luxembourg).
9 By amendments dated 23 February 2007 and 26 March 2008, the applicant’s contract was extended until 31 March 2009.
10 Having been asked by the applicant whether it would be possible to continue to work in the Parliament’s medical service under a contract for an indefinite period, the Secretary-General of the Parliament replied on 12 February 2009 that this was not possible and confirmed that her contract would end on 31 March 2009.
11 By its judgment of 13 April 2011 in Case F‑105/09 Scheefer v Parliament (the ‘Scheefer judgment’), the Tribunal annulled the decision contained in the letter of 12 February 2009. In that judgment, the Tribunal held that, in the light of the first paragraph of Article 8 of the CEOS, the applicant’s contract was to be regarded as having been renewed twice, with the result that the second amendment, made on 26 March 2008, had to be reclassified automatically as a contract for an indefinite period in accordance with the intention of the legislature, as a consequence of which the expiry of the period set out in that amendment could not lead to the end of the applicant’s employment.
12 Meanwhile, on 18 October 2007, the Parliament had published recruitment notice PE/95/S announcing the organisation of a selection procedure based on qualifications and tests for the recruitment of a temporary administrator-doctor and the constitution of a list of suitable candidates comprising the four best candidates (OJ 2007 C 244 A, p. 5) (‘selection procedure PE/95/S’). The applicant submitted an application, which was rejected on 28 January 2008 on the ground that she did not have the requisite experience. The list of suitable candidates drawn up following that procedure was adopted on 16 May 2008 and two doctors were recruited, one on 1 May 2009, the other on 1 June 2009.
13 On 24 May 2011, the Parliament informed the applicant that, following the Scheefer judgment, her temporary staff contract had been reclassified as a contract for an indefinite period, with the result that the termination of her employment on 31 March 2009 was void, so that she was entitled to payment of her salary from 1 April 2009, after deduction of the replacement income referred to in that judgment of which she had been in receipt since that date.
14 By letter of 14 June 2011, the applicant informed the Parliament inter alia that she was available to resume working as soon as possible.
15 By letter of 20 June 2011, the Secretary-General of the Parliament notified the applicant that the Parliament was terminating her temporary staff contract for an indefinite period on the ground that ‘[her] employment [could] no longer be justified given that [the Parliament] now ha[d] a list of shortlisted candidates … who met the criteria of Article 7(2) of the Internal Rules … and that it [had] filled all the vacant medical officer posts assigned to Luxembourg on the basis of that list’.
16 Under Article 90(2) of the Staff Regulations, which was applicable to members of the temporary staff pursuant to Article 46 of the CEOS, the applicant, on 5 August 2011, lodged a complaint against the decision to dismiss her set out in the letter referred to in the previous paragraph. The authority empowered to conclude contracts of employment (the ‘AECC’) dismissed that complaint by its decision of 21 December 2011.
Forms of order sought by the parties
17 The applicant claims that the Tribunal should:
– declare her appeal admissible and well founded and, accordingly:
– primarily, annul the decision to dismiss her set out in the letter of the Secretary General of the Parliament of 20 June 2011, ‘with all the consequences including the financial consequences which flow therefrom’;
– if necessary, annul the decision of 21 December 2011 rejecting her complaint;
– ‘accordingly order [her] reinstatement within the Parliament’;
– in the alternative, order the Parliament to pay her, firstly by way of compensation for the financial losses she has suffered, the amount of EUR 288 000 ‘corresponding to 36 months of salary payments … without prejudice to the exact amount to be calculated by taking into account the necessary adaptations …, or any other amount to be determined by the Tribunal on a fair and equitable basis or on the basis of experts’ reports’ and, secondly by way of compensation for the non-material damage she has suffered, the amount of EUR 15 000;
– order the Parliament to pay the costs.
18 The Parliament claims that the Tribunal should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
The claim for annulment of the dismissal of the complaint and the claim seeking the issue of directions
19 The applicant is making a separate claim for the annulment of the decision of the Parliament of 21 December 2011 dismissing her complaint.
20 It should be noted that according to established case-law, claims for annulment formally brought against a decision to reject a complaint have, where that decision lacks any independent content, the effect of bringing before the Tribunal the act against which the complaint was submitted (judgment of 17 January 1989 in Case 293/87 Vainker v Parliament, paragraph 8, and Scheefer, paragraph 21). In the present case, the dismissal of the complaint of 21 December 2011 confirms the initial decision contained in the letter of 20 June 2011 to terminate the applicant’s contract for an indefinite period, whilst giving additional information in the light of that complaint. In such a situation, it is the lawfulness of the initial decision adversely affecting the applicant which is examined by taking into consideration the grounds which emerge from a reading of those grounds in conjunction with the dismissal of the complaint. Consequently, the claim seeking the annulment of the dismissal of the complaint lacks any independent content and the action must be regarded as being formally directed against the decision set out in the letter of 20 June 2011 (the ‘contested decision’), as stated in the decision of 21 December 2011 dismissing the complaint (see, to that effect, judgment of 10 June 2004 in Case T‑258/01 Eveillard v Commission, paragraphs 31 and 32).
21 The applicant further asks the Tribunal to ‘order her reassignment … within the Parliament’.
22 The above head of claim must be regarded as asking the Tribunal to order the administration to reinstate the applicant in its service in order to comply with the judgment in the event that it annuls the contested decision. However, it is not for the Tribunal, in the context of an application made pursuant to Article 46 of the CEOS and Article 91 of the Staff Regulations, to give directions to the institutions of the European Union. If an act is annulled, the institution concerned is required, under Article 266 TFEU, to take the necessary measures itself to comply with the judgment (judgment of 4 May 2005 in Case T‑398/03 Castets v Commission, paragraph 19).
23 It follows that the claim seeking the issue of directions is inadmissible.
The claim seeking the annulment of the contested decision
24 The applicant raises three pleas in law, alleging:
– first, breach of the obligation to state reasons and of the duty of transparency;
– secondly, absence of legal basis, manifest error of assessment and failure to have regard to ‘Articles 2, 3, 8, 29 and 47 of the CEOS’, and misuse of powers;
– thirdly, breach of the duty to have regard for the welfare of staff, abuse of rights, and infringement of the principles of sound administration and of the performance of contracts in good faith.
The first plea, alleging breach of the obligation to state reasons and of the duty of transparency
25 The applicant submits that reasons must be stated for any decision unilaterally to terminate a contract for an indefinite period of a member of the temporary staff. She notes, in addition, that the contested decision was made following the Scheefer judgment, shortly after the letter of the Parliament of 24 May 2011 confirming that the termination of her employment on 31 March 2009 was void and after having received verbal assurance that she would very soon regain her post. She notes finally that, despite the specific circumstances of the case, her superiors did not organise a meeting to explain her dismissal.
26 In that context, the grounds of the contested decision, according to which her employment for an indefinite duration was no longer justified since all vacant doctors’ posts in Luxembourg had been filled by candidates shortlisted following selection procedure PE/95/S who met the requirements of Article 7(2) of the Internal Rules, should have been the subject of further discussion. In the contested decision, the Parliament ‘remain[s] … absolutely silent … in relation to the details’ of those recruitments, in particular in relation to their dates and the manner in which they were carried out. In addition, the Parliament did not take into account the fact that the applicant had ‘held a contract for an indefinite period (since 31 March 2008)’ and had sufficient experience to be employed in one of the posts at issue.
27 In that regard, it should be noted that the contested decision is worded as follows:
‘… Pursuant to Article 7(2) of the Internal Rules …, temporary staff referred to in Article 2(a) of the [CEOS] are recruited from among the candidates shortlisted following a competition or recruitment procedure provided for under Article 29(2) of the Staff Regulations. It should be noted that you were employed, from 1 April 2006, as a member of the temporary staff referred to in Article 2(a) of the CEOS, in accordance with the exceptional procedure referred to in [Article 7(4) of the Internal Rules] to remedy the lack of candidates shortlisted following a competition or other recruitment procedure.
However, the Parliament has since organised selection procedure … PE/95/S …. It must be stated that you were not shortlisted following that procedure, as your application was not admissible because at the time you did not have the amount of professional experience required by the vacancy notice.
At the end of paragraph 58 of [the Scheefer judgment], the Tribunal … noted that a contract for an indefinite period could be terminated at any time for legitimate reasons, provided that the period of notice laid down in Article 47(c)(i) of the CEOS was given.
In those circumstances, the Parliament [hereby] terminates your temporary staff contract for an indefinite period on the ground that your employment is no longer warranted since the Parliament now has a list of shortlisted candidates who meet the requirements of Article 7(2) of the Internal Rules … and that it has filled all vacant medical officer posts in … Luxembourg from that list.
…’
28 That statement of reasons appears sufficient, even taking account of the specific situation in which the applicant claims she found herself, because it expresses clearly and precisely the reason for the termination of the applicant’s temporary staff contract.
29 In particular, the applicant complains to no avail that the Parliament did not take into account the fact that she had a contract for an indefinite period and had the necessary professional experience to be able to take up one of the vacant doctors’ posts. The Parliament noted both in the contested decision and in the dismissal of the complaint that the applicant had been hired by way of exception to remedy a situation in which there were vacant doctors’ posts and no candidates capable of being recruited in accordance with the Internal Rules. It also mentioned that it had organised selection procedure PE/95/S to fill that vacancy and that the applicant was not shortlisted following that procedure, as her application had been deemed inadmissible. It should be borne in mind that the reasoning may be implicit on condition that it enables the person concerned to know why the contested decision was taken and provides the competent court with sufficient material for it to exercise its power of review (see judgment of 8 February 2007 in Case C‑3/06 P Groupe Danone v Commission, paragraph 46; see, by analogy, judgment of 9 July 2008 in Case T‑304/06 Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart), paragraph 55; and judgment of 13 April 2011 in Case T‑262/09 Safariland v OHIM – DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR), paragraph 92). Consequently, as the Parliament cannot disregard the selection procedure referred to in paragraph 27 of the present judgment, the considerations set out in the contested decision are sufficient in themselves in that they indirectly, but none the less certainly, preclude the possibility of making the applicant’s employment permanent in one of the posts in question, whatever type of contract and professional experience she has.
30 The contested decision cannot, in addition, be deemed to be deficient on the ground that ‘[t]he Parliament remain[ed] … absolutely silent … in relation to the details [of the] employment’ of the doctors in relation to the vacant posts, in particular in relation to the exact dates of the appointments and the manner in which they were made. As the applicant herself notes, those matters are mere details. Accordingly, the Parliament was not required to mention them in the contested decision. A statement of reasons is sufficient provided that it sets out the facts and legal considerations having decisive importance in the context of the decision, with the result that the administration is not required to give the grounds for the grounds of its decision (see judgment of 29 September 2011 in Case F‑80/10 AJ v Commission, paragraph 117). In addition, the Parliament noted in the dismissal of the complaint that ‘all medical officer posts have been filled since 1 June 2009’.
31 In addition, it should be observed that the alleged inadequacy of the statement of reasons can be remedied by explanations given during the proceedings before the Tribunal. In the present case, the Parliament stated in its defence that one doctor had been recruited on 1 May 2009 and a second on 1 June 2009 under temporary staff contracts for an indefinite period. Furthermore, the applicant herself noted during the hearing that all the allegedly missing grounds were set out in that defence.
32 Finally, the applicant also alleges to no avail that the Parliament did not hold a meeting with her before reaching the contested decision. It is true that, according to case-law, the obligation to state the reasons for an act with adverse effect may be regarded as fulfilled if the person concerned was duly informed, in the course of meetings with his superiors, of those reasons (see judgment of 26 October 2006 in Case F‑1/05 Landgren v ETF, paragraph 79). However, the sole purpose of that case-law is to identify a circumstance capable of remedying the lack of a statement of reasons, but does not require, as the applicant appears to suggest, a prior meeting with superiors in order to comply with the obligation to state reasons or the duty of transparency where, as in the present case, the decision to dismiss states sufficient reasons.
33 The first plea in law must therefore be dismissed.
The second plea, alleging absence of legal basis, manifest error of assessment and failure to have regard to Articles 2, 3, 8, 29 and 47 of the CEOS, and misuse of powers
34 It is apparent from the wording and arguments of the second plea that it can be divided into three parts which it is appropriate to examine in turn. In addition, it is apparent from those same arguments that the reference to Article 29 of the CEOS is clearly inadvertent, since that article is completely unrelated to the dispute in that it relates to birth grants and that the applicant does not raise any specific arguments in that regard. It should therefore be considered that the applicant is instead relying on Article 29 of the Staff Regulations since Article 7 of the Internal Rules refers to that article.
– The first part of the second plea, alleging absence of legal basis
35 The applicant submits that the Parliament was not entitled to rely on ‘“financial” reasons’ arising from the fact that all doctors’ posts had been filled, as such reasons cannot constitute a legitimate reason for termination of a contract for an indefinite period either under the CEOS or under her contract.
36 In that regard, it should be noted that Article 47(c) of the CEOS confers a broad discretion on the AECC to terminate a contract for an indefinite period of a member of the temporary staff (see, to that effect, judgment of 8 September 2009 in Case T‑404/06 P ETF v Landgren, paragraph 162 and the case-law cited, and judgment of 7 July 2011 in Case T‑283/08 P Longinidis v Cedefop, paragraph 84).
37 From that point of view, and in response to the Parliament’s argument that Article 7(4) of its Internal Rules prevented it from concluding a contract for an indefinite period, even though it was appropriate to secure the continuity of the services provided by the Luxembourg medical service, the Tribunal held in the Scheefer judgment that ‘Article 7 d[id] not prohibit the use of fixed-term contracts in so far as a temporary situation may, as in the present case, continue for an indefinable period of time, and such a contract does not, in any event, offer the beneficiary the stability of appointment as an official, since it may be terminated for legitimate reasons provided that a period of notice is given, in accordance with Article 47(c)(i) of the CEOS’ (Scheefer, paragraph 56).
38 In relation to whether, in the present case, the fact that all vacant doctors’ posts in the Parliament’s medical service in Luxembourg were filled could constitute a legitimate reason for dismissal, it is important to note that staff employed on the basis of Article 2(a) of the CEOS, such as the applicant, are there to ‘fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary’.
39 Consequently, the ground alleging ‘“financial” reasons’, in the words of the applicant, that is to say, the absence of available posts in the establishment plan appended to the budget of the institution, constitutes a legitimate ground in the light of which the Parliament was entitled to take the contested decision on the basis of Article 47(c)(i) of the CEOS.
40 The first part of the second plea must therefore be rejected.
– The second part of the second plea, alleging manifest error of assessment and an error in law stemming from a misapplication of Articles 2, 3, 8 and 47 of the CEOS and of Article 29 of the Staff Regulations
41 The applicant submits that the contested decision is marred by a manifest error of assessment and an error in law in that it disregards Articles 2, 3, 8 and 47 of the CEOS, and Article 29 of the Staff Regulations. According to her, the Parliament tried to circumvent the CEOS by unlawfully making her subject to several fixed-term temporary staff contracts and, in accordance with the maxim nemo auditur turpitudinem suam allegans (no one can be heard to invoke his own unlawful acts), it cannot rely on that strategy in support of the contested decision. Specifically, the ground alleging the lack of available doctors’ posts to justify her dismissal cannot be assessed without taking into account the circumstances of the case and in particular the fact that the Tribunal found in the Scheefer judgment that her fixed-term temporary staff contract had been reclassified as a contract for an indefinite period, with effect from ‘31 March 2008’. If the Parliament had complied with the CEOS, it would, according to the applicant, have concluded from that date onwards a contract for an indefinite period and would have assigned her to a vacant doctor’s post. That appointment would, in addition, have been in the interests of the service in the light of the experience gained by the applicant within the institution. Finally, the argument appearing in the dismissal of the complaint that the applicant had not been shortlisted following selection procedure PE/95/S, as a result of which it was impossible to make her recruitment permanent, is inadmissible, because it was made for the first time after the contested decision was made. That argument is also misconceived, because in the present case, it is not the fact that she had not been shortlisted following selection procedure PE/95/S which is the issue but the fact that the Parliament relies on the unavailability of all doctors’ posts in the medical service in Luxembourg whilst failing to mention that that unavailability was caused by its own unlawful acts.
42 The Tribunal notes however that in finding in the contested decision that ‘[the applicant’s] employment [was] no longer justified given that [it] now ha[d] a list of shortlisted candidates … who met the criteria of Article 7(2) of the Internal Rules … and that it [had] filled all the vacant medical officer posts … in Luxembourg on the basis of that list’, the Parliament had not relied on its ‘own illegal acts’ but on an objective fact, which was independent of the unlawful act constituted by the Parliament’s use of the amendment of 26 March 2008 to renew the applicant’s contract for a fixed term only.
43 In addition, the ground according to which the Parliament was unable to retain the applicant in her post because she had not been successful in selection procedure PE/95/S, as her application had been rejected for lack of professional experience, is neither inadmissible nor incorrect.
44 That ground is not inadmissible, because, under the system of remedies established by Articles 90 and 91 of the Staff Regulations, to which Article 46 of the CEOS refers, and taking account of the evolving nature of the pre-litigation procedure established by those articles, the administration may decide, when it rejects a complaint, to supplement or vary the grounds on which it had adopted the contested measure (see, to that effect, judgment of 9 December 2009 in Case T‑377/08 P Commission v Birkhoff, paragraphs 55 to 60, and judgment of 13 April 2011 in Case F‑30/09 Chaouch v Commission, paragraph 35).
45 In the contested decision, the Parliament had already pointed out to the applicant that she had been employed ‘under the exceptional procedure’ in Article 7 of the Internal Rules, ‘to remedy the lack of candidates shortlisted following a competition or other recruitment procedure’, and that she had not been shortlisted following selection procedure PE/95/S which had been organised to fill the vacant doctors’ posts. In that context, the AECC, in dismissing the complaint, only clarified this further by noting that, ‘in those circumstances, it was impossible for the Parliament to recruit her, except by breaching the principle of equality of treatment between the candidates’.
46 That ground is not incorrect, as it is indeed apparent from Article 7(2) and (3) of the Internal Rules that, in the absence of candidates shortlisted following a competition, members of the temporary staff hired pursuant to Article 2(a) of the CEOS can be permanently recruited only following a selection test. The recruitment procedure at issue, although not laid down by the CEOS, must be considered to form an integral part of the formalities which the Parliament was under an obligation to observe as employer or future employer (see, to that effect, judgment of 28 January 1992 in Case T‑45/90 Speybrouck v Parliament, paragraph 68). The Parliament had to follow that procedure, particularly as it had to observe equality of treatment between the candidates of selection procedure PE/95/S, in particular the shortlisted candidates of that procedure who, as a result of their success, were eligible to take up the vacant doctors’ posts in the Luxembourg medical service. Thus, despite the applicant’s contract being reclassified as a contract for an indefinite period from 26 March 2008 onwards under the first paragraph of Article 8 of the CEOS, the Parliament, which had initiated selection procedure PE/95/S on 18 October 2007, was, as a matter of principle, obliged to recruit from among the candidates shortlisted following selection procedure PE/95/S not only the doctor employed on 1 May 2009 to fill the first vacant post, but also the doctor employed on 1 June 2009 to fill the second vacancy. While the above selection procedure had been organised ‘to recruit a member of the temporary staff as an administrator … doctor’, the notice announcing that procedure also provided for the establishment of a list of suitable candidates made up of the four best candidates.
47 It follows that, contrary to the applicant’s submissions, the fact of not having been included on the list of candidates shortlisted following selection procedure PE/95/S and of not being able to seek to be employed pursuant to Article 7(2) or the first indent of Article 7(3) of the Internal Rules in one of the posts to be filled constitutes a decisive factor that the Parliament could not overlook, independently of its past mistake as to the classification of the applicant’s contract from 26 March 2008.
48 In addition, it is not disputed that an institution may terminate the contract for an indefinite period of a member of the temporary staff on the ground that, as in the present case, they were not included on a list of candidates shortlisted following a competition or other selection test (see judgment of 5 December 2002 in Case T‑70/00 Hoyer v Commission, paragraph 44).
49 The submissions made at the hearing by the applicant do not constitute a valid challenge to the above findings.
50 Whilst it is true that the Staff Regulations and the CEOS prevail over the Internal Rules, Article 7 of the Internal Rules does not contradict any of their provisions in requiring members of the temporary staff to be recruited from among candidates shortlisted following competitions or selection procedures and in precluding members of the temporary staff who do not meet those requirements from being hired other than by way of derogation and on a provisional basis.
51 The applicant none the less notes that she was employed under a contract for an indefinite period as a result of the first paragraph of Article 8 of the CEOS following the amendment of 26 March 2008, at a time when it had already been established since 28 January 2008 that she could not participate in selection procedure PE/95/S. Asserting, in that context, that contracts for an indefinite period secure for their beneficiaries some stability of employment and that, under Clause 3 of the framework agreement, the purpose of fixed-term contracts in contrast is to fill posts inter alia subject to the occurrence of a specific event, the applicant submits that the purpose of the contract for an indefinite period which she had at the time could not be to temporarily fill a post as a doctor and that it was no longer possible to raise the defence of the terms of recruitment provided for under Article 7 of the Internal Rules.
52 It is true that, according to Clause 3(1) of the framework agreement, the duration of a contract may be determined not only by ‘reaching a specific date’ but also by ‘the occurrence of a specific event’ (see judgment of 15 September 2011 in Case F‑102/09 Bennett and Others v OHIM, paragraph 85). It is also true that the recruitment of candidates shortlisted following selection procedure PE/95/S constituted a ‘specific event’, such that, in the expectation of that event, the conclusion of one fixed-term contract, ending at the time of that recruitment, instead of several fixed-term contracts each containing a specific date of termination, would have been justified. The Tribunal, as has already been noted at paragraph 37 above, had, in addition, already mentioned that possibility at paragraph 56 of Scheefer.
53 The fact remains that the reclassification of the amendment of 26 March 2008 into a contract for an indefinite period, in accordance with the first paragraph of Article 8 of the CEOS, in recognition of the fact that the Parliament had concluded successive fixed-term contracts which contained a specific date of termination with the applicant, has none the less not deprived the Parliament of the possibility of terminating that contract under the terms of Article 47(c)(i) of the CEOS. It is important to note that the use of contracts for an indefinite period does not provide their signatories with the stability of an appointment as an official.
54 The fact that the applicant had entered into a contract for an indefinite period from 26 March 2008 was an even less effective safeguard against dismissal as a result of the recruitment of candidates shortlisted following selection procedure PE/95/S, in that there was at that time a good deal of uncertainty owing to the fact that the list of suitable candidates had not yet been determined and to the fact, mentioned at the hearing by the Parliament, that it was not certain that doctors shortlisted following that selection procedure would in the end accept a post requiring them to give up their self-employed status.
55 The second part of the second plea must therefore be dismissed.
– The third part of the second plea, alleging misuse of powers
56 The applicant submits that the Parliament made use of the discretion conferred upon it by Article 47(c)(i) of the CEOS in order to circumvent the difficulties resulting from the strategy it had implemented in order not to grant her, in 2008, a contract for an indefinite period.
57 That third part of the plea cannot be upheld, as the applicant does not submit any objective, precise and consistent evidence to the effect that the Parliament disregarded Article 47 of the CEOS.
58 In addition, as has been established at paragraphs 46 and 47 of the present judgment, regardless of its past mistake, the Parliament could not overlook Article 7 of its Internal Rules and the fact that the applicant had not been included on the list of suitable candidates following selection procedure PE/95/S.
59 In the light of all the above, the second plea must be rejected in its entirety.
The third plea, alleging breach of the duty to have regard for the welfare of staff, abuse of rights, and infringement of the principles of sound administration and of the performance of contracts in good faith
60 The applicant submits that the Parliament has taken into account neither her interests nor those of the service. Thus, the Parliament did not attempt to find a solution in consultation with her. Without even having heard her, it relied on, in the contested decision, the strategy for which the Tribunal had already condemned it in Scheefer. However, in accordance with the principle of sound administration, the authority was under an obligation to take into consideration all of the elements liable to influence its decision. In addition, if the Parliament had complied with the CEOS and concluded a contract for an indefinite period with the applicant, it would have been in its own interest to maintain her in employment, because she had not been found wanting and, on the contrary, had acquired some experience within the Parliament’s medical service in Luxembourg. By relying on a ground which is itself reliant on the Parliament’s own mistake without trying to find a legally permissible solution both for itself and for the applicant, the Parliament, in addition, disregarded the principle of performance of contracts in good faith and committed an abuse of rights.
61 It has however been held that the fact that a candidate who is a member of the temporary staff carries out duties similar to those for which a competition has been organised does not prevent the institution from taking account of the failure of that candidate in that competition in order to put an end to his contract (see Hoyer v Commission, cited in paragraph 48 above, paragraph 47). From that point of view, it must be conceded that the fact that the applicant worked as a doctor under a temporary staff contract for an indefinite period, but provisionally, whilst awaiting the results of selection procedure PE/95/S did not prevent the Parliament from taking into consideration the fact that she did not appear on the list of suitable candidates of the selection procedure in order to terminate her contract on the ground that all vacant doctors’ posts were now filled by the candidates shortlisted following that selection procedure.
62 It should be noted, in addition, that the purpose of Article 7 of the Internal Rules is to organise in the interests of sound administration the recruitment of members of the temporary staff for the Parliament’s services by making the permanent recruitment of that staff subject to a selection procedure and that, as has been said above, the Parliament was, as a matter of principle, bound by that provision, as well as by the fact that the applicant had not been included on the list of suitable candidates of selection procedure PE/95/S. Consequently, even if the Parliament had granted the applicant a temporary staff contract for an indefinite period from 26 March 2008, it could not have assigned her to a vacant post as a doctor without disregarding the equality of treatment owed to candidates of the selection procedure, to the detriment, in particular, of the candidates shortlisted at the outcome of that procedure.
63 In addition, the Parliament notes that before dismissing the applicant, it reviewed, in accordance with the duty to have regard for the welfare of staff, whether the applicant could be reassigned to another doctor’s post within the medical service, but that reassignment had proved to be impossible by reason of her specific qualifications. In that regard, it must be noted that the applicant in fact only seeks the maintenance of her employment as a doctor within the Luxembourg medical service.
64 The applicant also submits that the Parliament did not attempt to find a solution jointly with her and that it dismissed her without even giving her the opportunity to be heard, which is indeed the case.
65 That last criticism appears to tie in with the head of claim alleging infringement of the duty to have regard for the welfare of staff to which a response has been given above.
66 Even supposing that the applicant had, however, wanted to raise a plea alleging breach of the right to a fair hearing or of the principle of sound administration on the basis that the Parliament failed to allow her to put forward her point of view, it should be noted that the right to be heard may result in the annulment of the decision taken only where the procedure might have led to a different outcome had it not been for a breach of that right (see judgment of 12 November 1996 in Case C‑294/95 P Ohja v Commission, paragraph 67; judgment of 18 January 2000 in Case T‑290/97 Mehibas Dordtselaan v Commission, paragraph 47; judgment of 23 April 2002 in Case T‑372/00 Campolargo v Commission, paragraph 39; judgment of 8 March 2011 in Case F‑59/09 De Nicola v EIB, paragraph 182, on appeal before the General Court of the European Union in Case T‑264/11 P). In the present case, having regard to Article 7 of the Internal Rules and the obligation to have regard for the equality between the candidates in selection procedure PE/95/S, having regard to the fact that the applicant did not appear on the list of suitable candidates prepared at the outcome of that procedure and considering that the AECC was bound by the number of posts to be filled, it does not appear that a decision different from the contested decision could have been reached if the applicant had been placed in a position to make her observations.
67 It therefore has to be concluded that the third plea is unfounded, and in the absence of any other founded plea, that the claim for annulment should consequently be dismissed.
The claim that the Tribunal should rule on all the consequences, including financial, flowing from the annulment of the contested decision and the claim seeking damages
68 By virtue of the Tribunal’s unlimited jurisdiction, the applicant requests that it place her in the situation in which she should have been in the event of the annulment of the contested decision, namely a situation in which she is still employed by the Parliament medical service in Luxembourg.
69 On the assumption that it is impossible to order her reinstatement, the applicant asks the Tribunal to order the Parliament to pay her damages in the amount of EUR 288 000, amounting to 36 months’ wages. In addition, the applicant requests that the Parliament be ordered to pay her the amount of EUR 15 000 by way of compensation for non-material damage suffered. That damage arises from the lack of respect shown for her social rights, from the feeling of having been misled in relation to her career prospects and from the fact that she had to bring proceedings twice in order to assert her rights.
70 Those heads of claim are an extension of the claim for annulment and must consequently be dismissed as a result of the dismissal of that claim.
71 Even supposing that, in order to justify compensation for non-material damage, the applicant relies on conduct unrelated to decision making of the Parliament, namely that it allegedly misled her in relation to her career prospects and showed a lack of respect for her social rights, it must be stated that the claim for compensation would be inadmissible as it was not based on a claim made under Article 46 of the CEOS and Article 90 of the Staff Regulations.
Costs
72 Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.
73 It is apparent from the reasons set out above that the applicant has been unsuccessful. Furthermore, in its pleadings the Parliament has expressly requested that the applicant be ordered to pay the costs. Since the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the applicant must bear her own costs and be ordered to pay the costs incurred by the Parliament.
On those grounds,
THE CIVIL SERVICE TRIBUNAL (Third Chamber)
hereby:
1. Dismisses the action.
2. Declares that Ms Scheefer is to bear her own costs and orders her to pay the costs incurred by the European Parliament.
Van Raepenbusch | Boruta | Barents |
Delivered in open court in Luxembourg on 6 March 2013.
W. Hakenberg | | S. Van Raepenbusch |