JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

2 July 2009

Case F-19/08

Kelly-Marie Bennett and Others

v

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

(Civil service – Members of the temporary staff – Indefinite contract with a termination clause – Open competitions – Admissibility – Act adversely affecting a staff member – Articles 8 and 47 of the CEOS – Obligation to state reasons – Duty to have regard for the welfare of staff – Principle of sound administration – Legitimate expectation – Principle of non-discrimination – Language requirements – Misuse of powers – Principle that contracts should be performed in good faith)

Application: brought under Articles 236 EC and 152 EA, in which Ms Bennett and 11 other members of the temporary staff of OHIM seek annulment of notice of competition OHIM/AD/02/07 for the drawing up of a reserve list from which to fill one administrator’s post (AD 6) in the field of industrial property, as regards three applicants, and of notice of competition OHIM/AST/02/07 for the drawing up of a reserve list from which to fill four assistants’ posts (AST 3) in the same field, as regards the other applicants (OJ C 300 A, p. 17 and 50, and, for the corrigenda to the competition notices, OJ 2008 C 67 A, pp. 2 and 4), as well as damages for the non-material loss allegedly suffered, assessed at EUR 25 000 per applicant.

Held: OHIM is ordered to pay each of the applicants the sum of EUR 2 000 by way of damages. The remainder of the application is dismissed. OHIM is to bear its own costs and to pay one quarter of the applicants’ costs. The applicants are to bear three quarters of their own costs.

Summary

1.      Officials – Actions – Action brought against a decision not to admit a candidate to the tests in a competition – Whether unlawfulness of the competition notice may be relied upon

(Staff Regulations, Arts 90(2) and 91(1))

2.      Officials – Actions – Act adversely affecting an official – Definition – Contract as a member of the temporary staff

(Staff Regulations, Art. 90(2))

3.      Officials – Competitions – Competition based on qualifications and tests – Conditions for admission

(Staff Regulations, Art. 27, first para.)

4.      Officials – Recruitment – Procedures – Choice – Discretion of the appointing authority

(Staff Regulations, Arts 27 and 29(1))

5.      Officials – Members of the temporary staff – Indefinite contracts with a termination clause applicable only if person is not included on reserve list drawn up following an open competition – Competition notice laying down a number of posts to be filled which is considerably fewer than the number of contracts

6.      Officials – Competitions – Conditions for admission – Equal treatment

7.      Officials – Members of the temporary staff – Principle that contracts should be performed in good faith

8.      Officials – Actions – Procedural context – Administration’s liability for breach of administrative duty

(Staff Regulations, Art. 90(1))

1.       In accordance with Article 90(2) and Article 91(1) 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.

As regards competition notices, in the light of the special nature of the recruitment procedure, which is a complex administrative operation composed of a series of closely-linked decisions, an applicant is entitled to rely on irregularities occurring in the course of the competition, even if the origin of those irregularities may be found in the wording of the competition notice itself, in an action against a subsequent individual decision, such as a decision not to admit him to the tests. A competition may also, exceptionally, be the subject of an action for annulment where, by imposing conditions excluding the applicant’s candidature, it constitutes a decision adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations.

(see paras 65-66)

See:

79/74 Küster v Parliament [1975] ECR 725, paras 5-8; 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission [1988] ECR 1399, para. 15; C-448/93 P Commission v Noonan [1995] ECR I‑2321, paras 17-19

T-60/92 Noonan v Commission [1993] ECR II‑911, para. 21; T‑358/03 Krahl v Commission [2005] ECR-SC I‑A‑215 and II‑993, para. 38

F-101/05 Grünheid v Commission [2006] ECR-SC I‑A‑1‑55 and II‑A‑1‑199, para. 33; F‑27/06 and F‑75/06 Lofaro v Commission [2007] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 57

2.      The contract of a member of the temporary staff, even once it has been signed, may be the subject of a complaint in the light of its capacity adversely to affect the staff member.

(see para. 96)

See:

T-137/99 and T-18/00 Martínez Páramo and Others v Commission [2002] ECR-SC I‑A‑119 and II‑639, para. 56; T-160/04 Potamianos v Commission [2008] ECR-SC I‑A‑2‑0000 and II‑A‑2‑0000, para. 21, on appeal before the Court of Justice, Case C‑561/08 P

3.      Given that the purpose of any competition organised within the European Communities is, as is apparent from the first paragraph of Article 27 of the Staff Regulations, to secure for the institution, as for any agency, the services of officials of the highest standard of ability, efficiency and integrity, it does not appear to be at all excessive to require candidates, in a competition notice, to hold a diploma attesting to at least three years’ university studies and to have at least three years’ professional experience relevant to the duties concerned.

(see para. 104)

4.      The appointing authority enjoys a wide discretion for the purpose of finding candidates with the highest standard of ability, integrity and efficiency when a vacant post is to be filled. In that respect, the use of the formulation term ‘whether … can’ in Article 29(1)(b) of the Staff Regulations clearly indicates that the appointing authority is not bound absolutely to hold a competition internal to the institution, but merely to consider, in each case, whether that measure is capable of resulting in the appointment of a person satisfying the requirements of Article 27 of the Staff Regulations. The administration is therefore not bound to follow, in the order indicated, the various stages of procedure set out in Article 29(1) of the Staff Regulations, and may decide to move on to the next phase even where it has received valid applications in the first stage.

(see para. 110)

See:

C-121/01 P O’Hannrachain v Parliament [2003] ECR I‑5539, para. 14

T-97/99 and T-99/99 Chamier and O’Hannrachain v Parliament [2001] ECR-SC I‑A‑1 and II‑1, para. 33; T-248/02 Faita v ESC [2003] ECR-SC I‑A‑281 and II‑1365, para. 45

5.      In offering to a number of staff who had passed internal selection procedures a temporary contract for an indefinite period containing a termination clause applicable solely if the staff concerned were not included on a reserve list drawn up following an open competition, thereby clearly undertaking to keep the staff in question permanently within the institution on condition that they were included on such a reserve list, and then in limiting to a few the number of posts to be filled, and in limiting the number of successful candidates entered on the list of suitable candidates following two – moreover open – competitions to the exact number of posts to be filled, the institution radically and objectively reduced the chances of those staff, as a whole, of avoiding the application of the termination clause and, therefore, rendered partly meaningless the scope of its contractual undertakings to its temporary staff.

However, that finding cannot lead to the annulment of those competition notices. In providing that the list of suitable candidates must, wherever possible, contain at least twice as many names as the number of posts to be filled, the fifth paragraph of Article 5 of Annex III to the Staff Regulations merely gives a recommendation to the selection board intended to facilitate the appointing authority’s decisions. Moreover, the lawfulness of a competition notice, which is a measure of general application, cannot depend on the content of contractual clauses linking candidates in the competitions to the administration, or on the way in which the administration implemented those clauses.

(see paras 116, 117, 119-120)

See:

122/77 Agneessens and Others v Commission [1978] ECR 2085, para. 22

T-159/95 Dricot and Others v Commission [1997] ECR-SC I‑A‑385 and II‑1035, para. 67; T-225/95 Chiou v Commission [1997] ECR-SC I‑A‑423 and II‑1135, para. 82; T-53/00 Angioli v Commission [2003] ECR-SC I‑A‑13 and II‑73, para. 103

6.       The interests of the service may justify requiring a candidate in a competition to have specific knowledge of certain languages of the Communities, the level of linguistic knowledge able to be required in the recruitment procedure being one appropriate to the actual requirements of the service. Furthermore, in the context of the internal functioning of the institutions, a system of all-embracing linguistic pluralism would generate major management problems and would be financially costly. The sound operation of the Union’s institutions and bodies, particularly where the body concerned has limited resources, may thus objectively justify a limited selection of languages for internal communication.

Consequently, the fact that preference is given, in a competition notice, to one or more languages of the Communities, thus giving an advantage to candidates with at least a satisfactory knowledge of one of them, cannot constitute an infringement of the principle of equal treatment where that difference is the result of circumstances specific to each candidate, and where no specific argument has been raised such as to cast doubt on the relevance of the linguistic knowledge required for performing the duties proposed in the competition notice.

(see paras 137, 138, 142-143)

See:

Küster v Parliament, paras 16 and 20; 22/75 Küster v Parliament [1975] ECR 1267, paras 13 and 17; C-160/03 Spain v Eurojust [2005] ECR I‑2077, point 47 of the opinion of Advocate General Poiares Maduro

T-376/03 Hendrickx v Council [2005] ECR-SC I‑A‑83 and II‑379, para. 26

7.      The employment relationship between the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and its temporary staff, even if it arises from a contract, is governed by the Conditions of Employment of Other Servants in conjunction with the Staff Regulations and thus comes under public law. However, the fact that temporary staff are subject to rules of Community administrative law does not preclude the Office, in the context of the implementation of certain clauses of the temporary staff contract supplementing those rules, from having to respect the principle that contracts should be performed in good faith, a principle which is common to the laws of the overwhelming majority of the Member States.

Consequently, in having, through its conduct, caused a number of temporary staff to entertain a sufficiently tangible hope of a stable professional situation, by offering them an indefinite contract containing a termination clause applicable solely if the staff concerned were not included on a reserve list drawn up following an open competition, and then limiting to a few the number of posts to be filled, the Office commits a breach of administrative duty capable of incurring its contractual liability.

Even though they have passed internal selection tests enabling them to be given an indefinite contract until such time as they take part in an open competition, such staff suffer non-material harm as a result of the feeling of having been deceived about their actual career prospects.

(see paras 163-165)

See:

43/59, 45/59 and 48/89 Von Lachmüller and Others v Commission [1960] ECR 463, 475

8.      In order to attribute liability to the administration for breach of administrative duty, in the context of the implementation of a contractual undertaking given under his temporary contract, the staff member concerned must duly follow the prelitigation procedure, which must begin with an application for compensation under Article 90(1) of the Staff Regulations.

Failing that his claims for damages are inadmissible.

However, since the subject-matter and particular circumstances of a dispute in which it is necessary to clarify the relationship between the clauses of a contract, measures of individual application and a disputed competition notice make the question of admissibility particularly difficult, an applicant cannot be criticised for having lodged a complaint against that competition notice, together with a claim for compensation for the non‑material damage which he considers that he has suffered. The error committed in that respect is excusable and it would not constitute a sound administration of justice if the applicant had to undertake a fresh administrative and, where necessary, judicial procedure in order to obtain compensation for his non-material harm.

(see paras 167-169)