Contents
Judgment of the General Court (Appeal Chamber)21 September 2011noteIn Case T-325/09 P,APPEAL against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 4 June 2009 in Joined Cases F-134/07 and F-8/08 Adjemian and Others v Commission [2009] ECR-SC I-A-1-149 and II-A-1-841, asking for that judgment to be set aside,Vahan Adjemian, residing in Angera (Italy), and the 175 staff and former staff of the European Commission whose names appear in the annex, represented by: S. Orlandi, A. Coolen, J-N. Louis and É. Marchal, lawyers,the other parties to the proceedings beingEuropean Commission, represented by J. Currall and D. Martin, acting as Agents,Council of the European Union, represented by M. Bauer and K. Zieleśkiewicz, acting as Agents,THE GENERAL COURT (Appeal Chamber),composed of M. Jaeger, President, I. Pelikánová (Rapporteur) and L. Truchot, Judges,Registrar: C. Kristensen, Administrator,having regard to the written procedure and further to the hearing on 18 February 2011,gives the following
Judgment
1By their appeal lodged pursuant to Article 9 of Annex I to the Statute of the Court of Justice, the appellants ask the Court to set aside the judgment of the European Union Civil Service Tribunal (Second Chamber) of 4 June 2009 in Joined Cases F-134/07 and F-8/08 Adjemian and Others v Commission [2009] ECR-SC I-A-1-149 and II-A-1-841 (‘the judgment under appeal’), by which the Tribunal dismissed the applications by which the appellants had sought, first, the annulment of the decisions of the Commission of the European Communities refusing to conclude new contracts of employment or to renew, for an indefinite period, the appellants’ previous contracts of employment as contract staff for auxiliary tasks within the meaning of Article 3b of the Conditions of employment of other servants (CEOS) (‘the individual contested decisions’) and, secondly, a declaration that Commission Decision C(2004) 1597 of 28 April 2004 on the maximum duration of the recourse to non-permanent staff in the Commission’s services, published in Administrative Notices No 75-2004 of 24 June 2004, (‘the decision of 28 April 2004’) and, in so far as is necessary, Article 88 of the CEOS are unlawful.
Background to the dispute
2The factual background to the dispute is set out as follows in paragraphs 11 to 21 of the judgment under appeal.
Proceedings at first instance and judgment under appeal
3By an application lodged before the Civil Service Tribunal on 3 December 2007, the applicants in Case F-134/07, whose names appear in Annexes I, II and III to the judgment under appeal, sought, in the first place, a declaration that the Commission decisions, including that of 28 April 2004, on the maximum duration of the recourse to non-permanent staff in the Commission’s services and, in so far as is necessary, Article 88 of the CEOS, in that it limits the duration of the contracts of employment of contract staff for auxiliary tasks, are unlawful, in the second place, the annulment of the Commission decisions of 22 August, 5 September, 30 October and 28 November 2007 refusing to conclude new employment contracts or to renew their previous employment contracts for an indefinite period and, in the third place and in so far as is necessary, the annulment of the Commission decisions laying down their respective conditions of employment, in that their new employment contracts or the renewal of their previous employment contracts were limited to a fixed period.
4By an application lodged before the Civil Service Tribunal on 22 January 2008, Ms Renier sought, in Case F-8/08, the annulment of the Commission decision of 11 April 2007 in that it limited the duration of her new contract of employment as a member of the contract staff for auxiliary tasks to the period between 16 April 2007 and 15 December 2008.
5By separate document, lodged at the Registry of the Civil Service Tribunal on 18 January 2008, in Case F-134/07, the Commission raised an objection of inadmissibility. On 15 February 2008, the applicants presented their observations on that objection of inadmissibility. By order of 8 May 2008, the Civil Service Tribunal decided to reserve the decision on the objection for the final judgment.
6By letter received at the Registry of the Civil Service Tribunal on 14 February 2008, the Council of the European Union requested leave to intervene in Case F-8/08 in support of the form of order sought by the Commission. The President of the Second Chamber of the Civil Service Tribunal granted that leave by order of 14 April 2008.
7By a statement in intervention on the merits of the case, received at the Registry of the Civil Service Tribunal on 26 May 2008, the Council submitted, in Case F-8/08, that the plea of illegality in respect of Article 88 of the CEOS, raised in the application, should be rejected as unfounded. The applicant’s observations on the statement in intervention were received by the Registry of the Civil Service Tribunal on 8 September 2008. The Commission did not lodge observations on the statement in intervention.
8By letter received at the Registry of the Civil Service Tribunal on 4 April 2008, the Council requested leave to intervene in Case F-134/07, in support of the form of order sought by the Commission. The President of the Second Chamber of the Civil Service Tribunal granted that leave by order of 7 May 2008.
9By a statement in intervention, received at the Registry of the Civil Service Tribunal on 23 July 2008, the Council submitted, in Case F-134/07, that the plea of illegality raised in the application with respect to Article 88 of the CEOS should be rejected as inadmissible as regards four of the applicants and, in any event or as regards the other applicants, as unfounded. In its observations on the statement in intervention, lodged at the Registry of the Civil Service Tribunal on 5 September 2008, the Commission submitted that the action should be dismissed as inadmissible or, in the alternative, as unfounded. The applicants’ observations on that statement were lodged at the Registry of the Civil Service Tribunal on 8 September 2008.
10By order of 18 November 2008, the President of the Second Chamber of the Civil Service Tribunal, having heard the parties, joined Cases F-134/07 and F-8/08 for the sole purpose of the oral procedure.
11In the judgment under appeal, the Civil Service Tribunal joined Cases F-134/07 and F-8/08, dismissed the actions brought before it and ordered the applicants to bear all their own costs, and those of the Commission, in their respective cases.
The appeal
Procedure
12By document lodged at the Registry of the Court on 17 August 2009, the appellants brought the present appeal.
13On 7 September and 7 October 2009, the application initiating proceedings was the subject, respectively, of a corrigendum and then of regularisation.
14On 30 October 2009, following the withdrawal of three appellants, an order for partial removal from the register was signed by the President of the Appeal Chamber.
15On 15 January 2010, the Commission lodged its response.
16On 10 February 2010, the Council lodged its response pursuant to Article 141 of the Rules of Procedure of the General Court.
17The written stage of the procedure was closed on 15 February 2010 and the appellants were notified thereof on 23 February 2010. The appellants did not seek leave to submit a reply pursuant to Article 143 of the Rules of Procedure.
18By letter of 25 February 2010, the appellants made a reasoned application, under Article 146 of the Rules of Procedure, to be heard during the oral stage of the procedure.
19On a report from the Judge-Rapporteur, the Court (Appeal Chamber) decided to open the oral procedure and, by way of a measure of organisation of procedure pursuant to Article 64 of the Rules of Procedure, to put a written question to the parties. The parties replied to that question within the prescribed period.
20The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 18 February 2011.
Forms of order sought
21The appellants claim that the Court should:— set aside the judgment under appeal;— uphold their claim for annulment raised before the Civil Service Tribunal;— order the Commission to pay the costs of the present proceedings and those incurred before the Civil Service Tribunal.
22The Commission contends that the Court should:— dismiss the appeal as unfounded;— order the appellants to pay the costs.
23The Council contends that the Court should:— dismiss the appeal as unfounded;— order the appellants to pay the costs.
Law
24The appeal seeks to have all provisions of the judgment under appeal set aside. In support, the appellants raise five grounds of appeal.
25The first ground of appeal alleges an error in law and an infringement of Articles 90 and 91 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) and of the right to an effective remedy vitiating the ground of the judgment under appeal by which the Civil Service Tribunal decided that the action in Case F-134/07 was deemed to be directed only against those decisions against which the complaints had been made and not against the decisions rejecting those complaints.
26The second ground of appeal alleges an error in law vitiating the grounds of the judgment under appeal by which the Civil Service Tribunal decided that 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) (‘the framework agreement’) could not, as such, impose obligations on the Commission or support pleas of illegality in respect of Article 88 of the CEOS and the decision of 28 April 2004.
27The third ground of appeal alleges an error in law vitiating the grounds of the judgment under appeal on which the Civil Service Tribunal rejected the pleas of illegality in respect of Article 88 of the CEOS and the decision of 28 April 2004 alleging failure to observe the objectives and the minimum requirements arising from the framework agreement on fixed-term work, as implemented by Directive 1999/70, in accordance with Article 139(2) EC.
28The fourth ground of appeal alleges an error in law vitiating the grounds of the judgment under appeal on which the Civil Service Tribunal rejected the plea of illegality in respect of Article 88 of the CEOS alleging failure to observe the obligation to state reasons.
29The fifth ground of appeal alleges errors in law vitiating the grounds of the judgment under appeal on which the Civil Service Tribunal rejected the complaints calling directly into question the legality of the individual contested decisions.
The first ground of appeal
30By the first ground of appeal, the appellants allege that the Civil Service Tribunal committed an error in law and infringed Articles 90 and 91 of the Staff Regulations and their right to an effective remedy in deciding, in paragraph 40 of the judgment under appeal, that the decisions rejecting the complaints were not acts adversely affecting them, within the meaning of Articles 90 and 91 of the Staff Regulations, in so far as they merely confirmed the individual contested decisions and that, consequently, they had no independent content.
31Under settled case-law, it follows from Articles 90 and 91 of the Staff Regulations that an action brought by a person to whom the Staff Regulations apply against a decision of the appointing authority (‘the AIPN’) or against the failure of that authority to take a measure prescribed by the Staff Regulations is admissible only if the person concerned has previously submitted a complaint to the AIPN and if the complaint has been rejected, at least in part, by express or implied decision. Under Article 117 of the CEOS, that case-law is also applicable, by analogy, to an action brought by a staff member against a decision of the authority empowered to conclude contracts of employment (‘the AECE’) or against the failure of that authority to take a measure prescribed by the CEOS.
32The administrative complaint and its rejection, whether express or implied, thus constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Consequently, the action before the judicature, even if formally directed against the rejection of the complaint, has the effect of bringing before the judicature the act adversely affecting the applicant against which the complaint was submitted (Case 293/87 Vainker v Parliament [1989] ECR 23, paragraphs 7 and 8), except where the scope of the rejection of the complaint differs from that of the measure against which that complaint was made (Case T-281/04 Staboli v Commission [2006] ECR-SC I-A-2-251 and II-A-2-1303, paragraph 26). It has been held on several occasions that an express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such circumstances, the rejection of the complaint constitutes a measure subject to review by the judicature, which will take it into consideration when assessing the legality of the contested measure (Case T-258/01 Eveillard v Commission [2004] ECR-SC I-A-167 and II-747, paragraph 31; Case T-375/02 Cavallaro v Commission [2005] ECR-SC I-A-151 and II-673, paragraphs 63 to 66; and Case T-377/08 P Commission v Birkhoff [2009] ECR-SC I-B-133 and II-B-1-807, paragraphs 50 to 59 and 64) or will even regard it as an act adversely affecting the applicant replacing the contested measure (see, to that effect, Joined Cases 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, paragraph 9; Joined Cases T-338/00 and T-376/00 Morello v Commission, [2002] ECR-SC I-A-301 and II-1457, paragraph 35; and Case T-389/02 Sandini v Court of Justice [2004] ECR-SC I-A-295 and II-1339, paragraph 49).
33Since, under the system laid down in the Staff Regulations or the CEOS, the person concerned must submit a complaint against the decision which he is contesting and then appeal against the decision rejecting his complaint, the Court of Justice has held that the action is admissible whether it is directed against the initial decision alone, the decision rejecting the complaint or both, provided, however, that the complaint and the appeal were lodged within the periods prescribed by Articles 90 and 91 of the Staff Regulations (Case 224/87 Koutchoumoff v Commission [1989] ECR 99, paragraph 7). However, in accordance with the principle of economy of procedure, the judicature may decide that it is not appropriate to rule specifically on the claims directed against the decision rejecting the complaint where it finds that those claims have no independent content and are, in reality, the same as those directed against the decision against which the complaint has been made (see, to that effect, Vainker v Parliament, paragraph 32 above, paragraphs 7 and 8). That may, in particular, be the case where it finds that the decision rejecting the complaint, in some cases because it is implied, is purely confirmatory of the decision which is the subject of the complaint and that, therefore, the annulment of the first decision would have no effect on the legal position of the person concerned distinct from that which follows from the annulment of the second.
34In the present case, it follows from paragraph 40 of the judgment under appeal that the Civil Service Tribunal considered essentially, in the light of the case-law arising from Vainker v Parliament, paragraph 32 above, that it was not appropriate to rule on the claims directed by the applicants in Case F-134/07 against the decisions rejecting their complaints, in so far as those claims had no independent content.
35By the first ground of appeal, the applicants in Case F-134/07 whose names appear in the annex complain precisely that the Civil Service Tribunal did not rule on the claims directed against the decisions rejecting their complaints. They submit that those decisions were new decisions in that they were taken by the AECE following an in-depth examination of their administrative, legal and personal situations.
36As the Commission rightly points out, the appellants concerned do not produce any argument or evidence in support of the first ground of appeal to support the finding that, as regards their content, the express decisions rejecting their complaints were not confirmatory of the individual contested decisions. That is, however, without prejudice to the obligation on the Civil Service Tribunal to state the reasons for its judgments in accordance with Article 36 of the Statute of the Court, which applies to the Tribunal pursuant to Article 7(1) of Annex I to that Statute and in accordance with Article 79 of its Rules of Procedure. Moreover, it follows from the case-law that the reasons for the judgments of the Civil Service Tribunal must be adequately stated so as to enable the persons concerned to know why their arguments have not been upheld and so that the Court is in a position to exercise its power of judicial review (see, by analogy, Case C-397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I-4429, paragraph 60, and the judgment of 4 October 2007 in Case C-311/05 P Naipes Heraclio Fournier v OHIM, not published in the ECR, paragraphs 51 to 53).
37It is true that the appellants concerned did not raise, in support of the appeal, a plea based on an absence of or inadequate statement of reasons in the judgment under appeal on the point at issue. However, pursuant to Article 113 of the Rules of Procedure, the Court may at any time examine of its own motion whether there exists any absolute bar to proceeding with an action. It has consistently been held that an absence of or inadequate statement of reasons constitutes an infringement of essential procedural requirements and is a plea involving a matter of public policy which may, and even must, be raised by the judicature of its own motion (see Case C-89/08 P Commission v Ireland and Others [2009] ECR I-11245, paragraph 34 and the case-law cited), first having invited the parties to submit their observations (see Case C-197/09 RX-II M v EMEA [2009] ECR I-12033, paragraph 57 and the case-law cited).
38In reply to the written question from the Court (paragraph 19 above), the appellants concerned submitted that the Civil Service Tribunal had infringed the obligation to state reasons under Article 7(1) of Annex I to the Statute of the Court by failing, in the judgment under appeal, to state the factors which it had taken into account in deciding, first, that they were able to demonstrate an interest in seeking the annulment of the decisions rejecting their complaints and, secondly, that the action was deemed to be directed only against those decisions against which those complaints had been made, namely the individual contested decisions.
39The Commission argued that the Civil Service Tribunal did not need to give specific reasons, in terms of elements of fact or law, for its conclusion that the decisions rejecting the complaints had no independent content. Those decisions did not stem from a re-examination of the situation of the interested parties based on new elements of fact or law. Moreover, the additional statement of reasons contained in those decisions had no purpose other than to confirm the individual contested decisions, while responding to the submissions raised by the interested parties in their complaints.
40The Council replied that the Civil Service Tribunal was not required to set out the reasons why it considered that the decisions rejecting the complaints had no independent content, in the absence of any elements of fact or law indicating, in the present case, that there might be some doubt in this regard. In any event, the alleged failure to state reasons should not result in the judgment under appeal being set aside since it had no effect on the actual substance of that judgment.
41Contrary to the arguments of the Commission and the Council in the present case, the Civil Service Tribunal was required to set out, in the judgment under appeal, the elements of fact and law on which it was relying in order, in essence, to rule that there is no need to adjudicate on the claims in the action brought before it. In paragraph 40 of the judgment under appeal, the Civil Service Tribunal did not set out the reasons which led it to rule that ‘the claims for annulment formally brought’ by the applicants in Case F-134/07 against the decisions rejecting their complaints ‘had no independent content’ in relation to the claims brought, by the same applicants, against the individual contested decisions.
42Moreover, by stating, in paragraph 40 of the judgment under appeal, that ‘it cannot be denied that the abovementioned applicants have an interest in seeking the annulment of the decisions rejecting their complaints at the same time as that of the acts adversely affecting them [that is to say the individual contested decisions]’, the Civil Service Tribunal let it be known that, in the circumstances of the case, only the annulment of those initial decisions would be capable of procuring them an advantage (see, to that effect, Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P GlaxoSmithKline Services and Others v Commission and Others [2009] ECR I-9291, paragraph 23), distinct, by definition, from that which would be afforded them by the annulment of the second set of decisions.
43In the light of the inadequate, or even contradictory, statement of reasons contained in the judgment under appeal, the Court is not in a position to verify whether the Civil Service Tribunal was fully entitled to rule that there is no need to adjudicate on the claims directed by the applicants concerned against the decisions rejecting their complaints and, therefore, to deal with the first ground of appeal.
44It follows that the judgment under appeal must be set aside on the ground of infringement of the obligation to state reasons, in so far as it states that there is no need to adjudicate on the claims directed by the applicants in Case F-134/07 whose names appear in the annex to this judgment against the decisions rejecting their complaints.
The second ground of appeal
45By the second ground of appeal, the appellants claim that the Civil Service Tribunal committed an error in law in so far as, in paragraphs 85 to 87 of the judgment under appeal, it bases the rejection of their pleas of the illegality of Article 88 of the CEOS and the decision of 28 April 2004, in that they authorise the institutions to conclude successive fixed-term employment contracts, in particular, on the finding that a directive, in general, and Directive 1999/70, in particular, could not, as such, impose obligations on the institutions and, in the present case, on the Commission.
46It is appropriate, in the first place, to deal with the pleas of inadmissibility raised by the Commission and the Council against this ground of appeal, alleging, first, that this ground of appeal raises a complaint, alleging infringement of Article 10 EC, which is expressly directed against the administrative reform proposed by the Commission and adopted by the Council in Regulation (EC) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1) and not against the judgment under appeal and, secondly, that it raises a complaint, alleging an error in law committed by the Civil Service Tribunal, which is not supported by any legal argument.
47As explained in paragraph 45 above, it is none the less clear from the appeal that the second ground of appeal is directed against the judgment under appeal and is based on legal arguments which meet the requirements of Article 138(1)(c) of the Rules of Procedure.
48It follows that the plea of inadmissibility raised by the Commission and the Council must be rejected as unfounded.
49As regards, in the second place, the merits of this ground of appeal, it should be pointed out that, in accordance with Article 283 EC, the Council adopted the CEOS by means of Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968 (I), p. 30), which has been amended on several occasions. The aim of that regulation, as may be seen from Article 1 thereof, is to regulate the legal relations between the European Communities and their staff. Under the provisions of the second subparagraph of Article 249 EC, the provisions of that regulation, in particular Article 88 of the CEOS, are to have general application and are binding in their entirety and directly applicable in all Member States.
50Similarly, the decision of 28 April 2004, as may be seen from its first recital, was adopted for the purpose of giving effect to the rules on the Commission’s relations with its non-permanent contract staff. It aims to lay down rules for exercising the broad margin of discretion which the Commission holds in its capacity as the AECE, within the framework established by the provisions of the CEOS and, in doing so, it constitutes an internal directive, even though it cannot be regarded as a general implementing measure within the meaning of Article 126 of the CEOS. Therefore, the decision of 28 April 2004 must be regarded as a rule of practice which the Commission has imposed on itself and from which it may not depart without specifying the reasons which have led it to do so, since otherwise the principle of equal of treatment would be infringed (see, by analogy, Case T-2/90 Ferreira de Freitas v Commission [1991] ECR II-103, paragraphs 56 and 61 and the case-law cited).
51By contrast, as the Civil Service Tribunal rightly points out, in paragraph 86 of the judgment under appeal, Directive 1999/70 is addressed to the Member States and not to the institutions. Accordingly, the provisions of that directive cannot be treated, as such, as imposing obligations on the institutions in the exercise of their legislative or decision-making powers (see, to that effect and by analogy, Case C-25/02 Rinke [2003] ECR I-8349, paragraph 24, and Case T-495/04 Belfass v Council [2008] ECR II-781, paragraph 43).
52It follows that the provisions of Directive 1999/70, which implement the framework agreement, cannot, as such, be a source of obligations on the Council or the Commission in the exercise of their legislative or decision-making powers for the purposes of governing the relations between the European Communities and their staff. Nor can they, as such, justify a plea of illegality in respect of Article 88 of the CEOS or of the decision of 28 April 2004.
53The second ground of appeal should therefore be rejected as unfounded.
The third ground of appeal
54By their third ground of appeal, the appellants argue that the Civil Service Tribunal committed an error of law in rejecting, in paragraph 118 of the judgment under appeal, the pleas of illegality in respect of Article 88 of the CEOS and the decision of 28 April 2004, on the ground that they did not disregard the objectives and the minimum requirements on fixed-term employment under the framework agreement, as implemented by Directive 1999/70.
55This ground of appeal, in essence, raises the question whether and on what conditions Directive 1999/70, which gives effect to the framework agreement, may be relied on for the purposes of establishing the existence or determining the scope of an obligation on the institutions which is itself capable of justifying a plea of illegality in respect of Article 88 of the CEOS and the decision of 28 April 2004, taken as a basis for the individual contested decisions, in that they impede the possibility the AECE has of converting into a contract of indefinite duration a succession of fixed-term employment contracts the purpose of which is the performance of permanent tasks on a long-term basis.
56In that regard, it should be specified that, even if the provisions of Directive 1999/70, which give effect to the framework agreement, cannot, as such, be a source of obligations on the Council or the Commission in the exercise of their legislative or decision-making powers for the purposes of governing the relations between the European Communities and their staff and cannot further justify a plea of illegality of Article 88 of the CEOS or of the decision of 28 April 2004 (see paragraph 52 above), the fact remains that the rules or principles laid down or established in that directive may be relied on against those institutions where those rules or principles themselves appear only as the specific expression of fundamental rules of the EC Treaty and of general principles imposed directly on those institutions (see, to that effect, Rinke, paragraph 51 above, paragraphs 24 to 28). After all, in a community based on the rule of law, the uniform application of the law is a fundamental requirement (Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I-10423, paragraph 104) and any person subject to the law is subject to the principle of due process of law. Thus the institutions must comply with the rules of the EC Treaty and the general principles of law applicable to them in the same way as any other person subject to the law (see, to that effect, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraphs 18 to 21, and Case T-195/08 Antwerpse Bouwwerken v Commission [2009] ECR II-4439, paragraph 55).
57It follows from the above case-law that the CEOS and the decision of 28 April 2004 should be interpreted, as far as possible, in a way that uniformly applies the law and is in conformity with the objectives and requirements of the framework agreement, implemented by Directive 1999/70, as the Civil Service Tribunal ruled in paragraphs 117 and 118 of the judgment under appeal, only in so far as those objectives and requirements themselves appear as the specific expression of fundamental rules of the EC Treaty and general principles of law imposed directly on the institutions.
58In the present case, in paragraphs 122 and 123 of the judgment under appeal, the Civil Service Tribunal found that ‘the framework agreement aim[ed] to define the successive use of [the] category of [fixed-term] employment relationships considered to be a potential source of abuse to the detriment of workers, by laying down a certain number of minimum protective provisions intended to prevent the employees’ position from becoming insecure’ and that ‘clause 5(1) of the framework agreement aim[ed] specifically to “prevent abuse arising from the use of successive fixed-term contracts or relationships”’.
59The principle prohibiting abuse of rights, under which no one may seek to misuse rules of law, is one of the general principles of law compliance with which is ensured by the courts (see, to that effect, Case C-162/07 Ampliscientifica and Amplifin [2008] ECR I-4019, paragraphs 27, 30 and 32 and the case-law cited, and Case T-271/04 Citymo v Commission [2007] ECR II-1375, paragraph 107 and the case-law cited).
60It should, moreover, be pointed out that the establishment of a legal framework to prevent abuse of rights arising from the use of successive fixed-term employment contracts or relationships is an objective which was recognised and encouraged by the legislature in Directive 1999/70. Taking action against abuse of rights in this field serves, moreover, to achieve the objectives which the Community and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, adopted in Article 136 EC, which include improved living and working conditions and proper social protection for workers.
61It follows that the legislature, in exercising its legislative power under Article 283 EC to adopt the CEOS, and the AECE, in exercising its broad margin of discretion within the framework laid down by the provisions of the CEOS, must, when adopting or implementing rules which govern the relations between the European Communities and their staff, prevent any abuse of rights arising from the use of successive fixed-term employment contracts or relationships, in accordance with the objectives of improved living and working conditions and proper social protection for workers, referred to in Article 136 EC.
62Thus, in so far as the Civil Service Tribunal had held, in the judgment under appeal, that the objectives and minimum requirements of the framework agreement, as implemented by Directive 1999/70, and, more specifically, of clause 5(1) thereof, were specific expressions of the principle prohibiting abuse of rights, which is a general principle of law, it was justified in investigating, when examining the substance of the pleas of illegality in respect of Article 88 of the CEOS and the decision of 28 April 2004, the extent to which that article and that decision could be interpreted in accordance with the objectives and minimum requirements of the framework agreement and, ultimately, with the principle prohibiting abuse of rights.
63It follows that the arguments to the contrary submitted by the Commission and the Council must be rejected as unfounded.
64The question which, therefore, remains to be examined is whether, as the appellants submit, the Civil Service Tribunal committed an error of law in rejecting, in paragraph 118 of the judgment under appeal, the pleas of illegality in respect of Article 88 of the CEOS and the decision of 28 April 2004, when that article and that decision are not or, in any event, cannot be interpreted as being consistent with the objectives and minimum requirements concerning fixed-term work under the framework agreement, as implemented by Directive 1999/70, since they do not fulfil the obligation incumbent on the institutions, in the exercise of their legislative or decision-making powers, to prevent the misuse of successive fixed-term employment contracts in the public service.
65However, account should be taken of the fact that the appellants disputed the legality of Article 88 of the CEOS and the decision of 28 April 2004 by raising a plea of illegality under Article 241 EC in the context of a dispute concerning the legality of the individual contested decisions by which the AECE refused to conclude new contracts of employment or to renew the previous contracts of employment as contract staff for auxiliary tasks for an indefinite period, rather than for a fixed term. The possibility afforded by Article 241 EC of pleading the inapplicability of a rule or measure of general application forming the legal basis of the contested implementing measure does not constitute an independent right of action and recourse may be had to it only as an incidental plea. Article 241 EC may not be invoked in the absence of an independent right of action (Case 33/80 Albini v Council and Commission [1981] ECR 2141, paragraph 17; Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 36; and Case T-154/94 CSF and CSME v Commission [1996] ECR II-1377, paragraph 16). It follows that the present ground of appeal may relate only to the question whether the Civil Service Tribunal vitiated the judgment under appeal by an error of law in ruling that Article 88 of the CEOS and the decision of 28 April 2004 did not infringe the obligation on the Council and the Commission, in the exercise of their legislative or decision-making powers, to prevent the abuse of rights arising from the use of successive fixed-term employment contracts in that they did not require the AECE to convert into a contract of indefinite duration a succession of fixed-term employment contracts the object of which was the performance of permanent tasks on a long-term basis.
66In that regard, it should be pointed out that, although the legislature must effectively prevent the misuse by the AECE of successive fixed-term employment contracts, the fact remains that, by virtue of the second subparagraph of Article 249 EC, it has total freedom to choose the most appropriate form and methods in that respect. It thus follows from the provisions of Directive 1999/70, as interpreted by the case-law, that the obligation to prevent abuse of rights arising from the use of successive fixed-term employment contracts and relationships may be fulfilled in different ways and, in particular, by adopting measures which either provide that the renewal of such employment contracts or relationships must be justified by objective reasons or limit the maximum total duration of the successive fixed-term employment contracts or relationships, or limit the number of renewals of such employment contracts or relationships. By contrast, it has been established that the fulfilment of that particular obligation did not require provision to be made for the conversion of fixed-term employment contracts into contracts of indefinite duration, at least where the rules in question contain measures intended effectively to prevent the abuse of successive fixed-term contracts and measures duly to punish that abuse and nullify the adverse consequences for the person concerned (see, to that effect and by analogy, Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraphs 91 and 102, and Case C-53/04 Marrosu and Sardino [2006] ECR I-7213, paragraphs 47 and 53).
67It follows, however, from paragraphs 77 to 86 below that the provisions of the CEOS governing the conclusion and renewal of contracts of employment as temporary staff, auxiliary staff, contract staff or contract staff for auxiliary tasks prohibit the AECE from using a succession of fixed-term employment contracts the object of which is the performance of permanent tasks on a long-term basis. Moreover, it follows from paragraph 87 below that, in so far as the AECE has used a succession of fixed-term employment contracts the object of which was the performance of permanent tasks on a long-term basis, that misuse could be rectified and the negative consequences for the person concerned could be nullified by reclassification of the employment contract in accordance with the provisions of the CEOS, which may in particular lead to the conversion of fixed-term employment contracts to contracts of indefinite duration.
68Thus, the Civil Service Tribunal did not vitiate the judgment under appeal by the error of law alleged by the appellants in ruling that Article 88 of the CEOS and the decision of 28 April 2004 did not infringe the obligation on the Council and the Commission to prevent and duly punish the abuse of rights arising from the use, by the AECE, of successive fixed-term employment contracts for the purposes of the performance of permanent tasks on a long-term basis.
69Accordingly, the third ground of appeal must be rejected as unfounded.
The fourth ground of appeal
70By their fourth ground of appeal, the appellants claim that the Civil Service Tribunal committed an error of law in rejecting the plea of illegality in respect of Article 88 of the CEOS alleging failure to observe the obligation to state reasons, because the statement of reasons contained in recital 36 in the preamble to Regulation No 723/2004 was sufficient to justify the objective pursued by the creation of the new category of contract staff for auxiliary tasks and, moreover, a specific statement of reasons was not required in so far as Article 88 of the CEOS, read in conjunction with Article 3b of the CEOS, itself read in the light of clause 5 of the framework agreement, did not adversely affect the objectives and minimum requirements concerning fixed-term work under the framework agreement.
71Bearing in mind that the appellants dispute the AECE’s refusal to conclude new employment contracts or to renew their previous employment contracts for an indefinite period, it must be stated that, by their plea of illegality alleging the absence of a statement of reasons in Article 88 of the CEOS, they were complaining that the legislature had not set out the reasons why it had not imposed on the AECE a general obligation to convert into contracts of indefinite duration a succession of fixed-term employment contracts the object of which was the performance of permanent tasks on a long-term basis.
72For the purposes of rejecting that plea of illegality, the Civil Service Tribunal held, in paragraph 141 of the judgment under appeal, that a specific statement of reasons was not required in the case at issue, particularly since, as was held in paragraph 134 of the judgment under appeal, Article 88 of the CEOS does not adversely affect the objectives and minimum requirements concerning fixed-term work under the framework agreement.
73In so far as the fourth ground of appeal may be interpreted as raising, in essence, an error of law committed by the Civil Service Tribunal in failing to find, in the judgment under appeal, that, by virtue of the obligation to state reasons laid down in Article 253 EC, the legislature was required to set out the reasons why it had not imposed on the AECE a general obligation to convert into contracts of indefinite duration a succession of fixed-term employment contracts the object of which was the performance of permanent tasks on a long-term basis, it should be pointed out that, as follows from paragraph 67 above, the Civil Service Tribunal was right to rule, in essence, in paragraph 134 of the judgment under appeal, that the legislature was not required to lay down that obligation since the provisions of the CEOS permit the prevention and due penalties for the abuse of rights which may arise from the use, by the AECE, of successive fixed-term employment contracts the object of which is the performance of permanent tasks on a long-term basis, and that those provisions may even, if appropriate, lead to the conversion of such employment contracts to contracts of indefinite duration. The Civil Service Tribunal was therefore also right to decide, in paragraphs 141 and 142 of the judgment under appeal, that the legislature was not required to set out the reasons why it had not laid down the general obligation in question.
74Accordingly, the fourth ground of appeal must be rejected as unfounded.
The fifth ground of appeal
75Under the fifth ground of appeal, the appellants claim that the Civil Service Tribunal vitiated by several errors in law the grounds of the judgment under appeal by which it rejected the complaints calling directly into question the legality of the individual contested decisions by which the AECE refused to conclude new employment contracts or to renew the appellants’ previous employment contracts for an indefinite period.
76In order to respond to the complaints raised by the appellants under the fifth ground of appeal, it is appropriate to reiterate or to specify the respective terms and characteristics of the different types of employment contract in the public service, as provided for by the Staff Regulations or the CEOS.
77First of all, it should be pointed out that the expression ‘established post on the staff of one of the institutions’ within the meaning of Article 1a(1) of the Staff Regulations covers only those posts expressly prescribed as ‘permanent’, or described in a similar manner, in the budget (Case 18/63 Schmitz v EEC [1964] ECR 163, 192, and Joined Cases T-137/99 and T-18/00 Martinez Paramo and Others v Commission [2002] ECR-SC I-A-119 and II-639, paragraph 96). Any interpretation to the contrary would increase to a considerable extent the number of permanent posts authorised by the budgetary authority, thus stultifying both the powers and the intentions of the budgetary authority (Schmitz v EEC, p. 192).
78Next, it follows from a combined reading of Article 1a(1) of the Staff Regulations and Articles 2 to 5 of the CEOS that permanent posts in the institutions are, in principle, intended to be filled by officials and that it is only by way of exception that such posts may be filled by other staff.
79Thus, although Article 2(b) and (d) of the CEOS expressly provides that temporary staff may be engaged to fill a permanent post, it also stipulates that that may occur only temporarily. Moreover, the second paragraph of Article 8 of the CEOS provides that temporary staff are not to be engaged for more than four years, but their contracts may be renewed not more than once for a maximum period of two years. At the end of that time, they must cease to be employed as temporary staff, either by termination of their employment or by their appointment as officials in accordance with the Staff Regulations. That exception to the principle that permanent posts are to be filled by appointing officials may apply only in order to meet the needs of the service in a given case (see, to that effect, Joined Cases 341/85, 251/86, 258/86, 259/86, 262/86, 266/86, 222/87 and 232/87 van der Stijl and Cullington v Commission [1989] ECR 511, paragraphs 28 and 33). Furthermore, it may apply only if the institution has a vacant permanent post previously prescribed by the budget (Martínez Páramo and Others v Commission, paragraph 77 above, paragraph 97).
80Moreover, although Article 3(b) and the first subparagraph of Article 3b(b) of the CEOS provide respectively that auxiliary staff and contract staff for auxiliary tasks may be engaged, after the possibility of filling the posts in question with officials from the institution has been examined, to replace certain officials or temporary staff in a permanent post, Articles 51 and 53 of the CEOS, on the one hand, and Article 88 of the CEOS, on the other hand, stipulate that their employment contracts are to be concluded for a fixed period and limit both the possibilities of renewing the employment contract and the possible effective duration of that employment. That makes such employment insecure, in line with the very purpose of the employment, namely to replace an official or a member of the temporary staff who is unable for the time being to perform his duties (see, to that effect, Case 17/78 Deshormes v Commission [1979] ECR 189, paragraph 37).
81As regards posts included in the list of posts annexed to the section of the budget relating to each institution which the budgetary authorities have classified as temporary, they must, pursuant to Article 2(a) and Article 9 of the CEOS, be filled by temporary staff. In so far as such posts are included in the list of posts, they correspond to permanent tasks defined as public service, although, by virtue of the choice made by the budgetary authority, the latter do not correspond to a ‘permanent post’ as defined in paragraph 77 above, which is intended to be filled by an official, in accordance with the principle set out in paragraph 78 above. It is therefore possible to provide that employment contracts in respect of such posts may, in accordance with the provisions of the first subparagraph of Article 8 of the CEOS, be concluded for an indefinite period. Where it is concluded for a fixed period, the employment contract may be renewed no more than once for a fixed period, and in the event of subsequent renewal it becomes indefinite.
82Finally, as regards those posts not included in the list of posts annexed to the section of the budget relating to each institution, which are, therefore, paid from the total appropriations opened for that purpose under the section of the budget relating to the institution, in accordance with Article 3 and Article 79(1) of the CEOS, they do not correspond to permanent tasks defined as public service or, consequently, to a ‘permanent post’ as defined in paragraph 77 above, or to a temporary post as defined in paragraph 81 above. Prior to the application of the new provisions of the CEOS adopted under Regulation No 723/2004, those posts had to be filled by auxiliary staff in accordance with Article 3 of the CEOS. Since 31 December 2006, pursuant to Article 52 of the CEOS, no new auxiliary staff may be engaged and the non-permanent and non-temporary posts previously filled by auxiliary staff must, under the provisions of Article 3a(1) and the first subparagraph (a) of Article 3b of the CEOS, be filled either by contract staff or by contract staff for auxiliary tasks.
83As regards the non-permanent and non-temporary posts located in the European Union within one of the institutions, a distinction should now be made between those which involve the performance of manual or administrative support service duties or tasks and those which involve the performance of other duties or tasks. The former must be carried out by contract staff in accordance with Article 3a(a) of the CEOS, while the latter must be carried out by contract staff for auxiliary tasks in accordance with the first paragraph, subparagraph (a), of Article 3b of the CEOS. The latter types of post, which are to be filled by contract staff for auxiliary tasks, are in principle inherently insecure since they relate to tasks for the institution concerned which are of a transitory nature or which fulfil an urgent need, where a suitable budgetary post is not immediately available, or which are not clearly defined (see, to that effect and by analogy, Deshormes v Commission, paragraph 80 above, paragraph 37; Case 106/80 Fournier v Commission [1981] ECR 2759, paragraph 9; and Joined Cases 225/81 and 241/81 Toledano Laredo and Garilli v Commission [1983] ECR 347, paragraph 6).
84In accordance with their very nature, it is stipulated that contracts of employment as contract staff for auxiliary tasks be concluded for a fixed period. Moreover, the possibilities for the renewal of such contracts and the possible effective duration of employment under them are limited.
85By contrast, non-permanent and non-temporary posts which are to be filled by contract staff in accordance with Article 3a(a) of the CEOS are posts which are not inherently insecure in that they involve manual or administrative support service tasks for the institution concerned which may be permanent in nature and clearly defined, as follows from Article 80(3) of the CEOS. Consequently, although Article 85(1) and (2) of the CEOS provides that contracts of employment as contract staff are to be concluded for a fixed period, it also provides that the total duration of engagement for a fixed period may not exceed 10 years and that, after one or more renewals, as appropriate, the contract may be renewed only for an indefinite period.
86It follows from the above that the principal characteristic of contracts of employment as contract staff for auxiliary tasks is their insecurity over time, in line with the very purpose of such contracts, which is to arrange for occasional staff to perform duties which — by their nature or by virtue of the absence of a holder of the post — are insecure. That regime may not therefore be used by the AECE to assign tasks corresponding to a ‘permanent post’, as defined in paragraph 77 above, tasks corresponding to a post included in the list of posts annexed to the section of the budget relating to each institution, which the budgetary authorities have defined as temporary (see paragraph 81 above), or manual or administrative support service tasks, within the meaning of Article 3a(a) of the CEOS, for long periods to such staff, who would thus be used outside the proper framework at the cost of prolonged uncertainty (see, to that effect and by analogy, Deshormes v Commission, paragraph 80 above, paragraphs 37 and 38, and Case 43/84 Maag v Commission [1985] ECR 2581, paragraphs 18 and 19). After all, such a use would infringe the principle prohibiting abuse of rights as applied to the use by the AECE of successive fixed-term employment contracts in the public service (paragraphs 71 et seq. above). It would also be contrary to the principle of equal treatment in the public service (Case C-227/04 P Lindorfer v Council [2007] ECR I-6767, paragraph 63, and Case C-71/07 P Campoli v Commission [2008] ECR I-5887, paragraph 50), according to which staff who are objectively placed in identical conditions or situations must be subject to the same rules.
87Although it would be contrary to the Staff Regulations and the CEOS for staff to be classified as officials within the meaning of Article 1a(1) of the Staff Regulations solely because they had been assigned for long periods to tasks corresponding to a ‘permanent post’ as defined in paragraph 77 above, there is on the other hand no reason why, in the light of the tasks carried out by a staff member and the factual circumstances, the judicature, when called upon to rule on an action brought under Article 117 of the CEOS and Article 91 of the Staff Regulations, should not legally classify as a contract of employment as temporary staff a contract, formally presented as a contract of employment as auxiliary staff, contract staff or contract staff for auxiliary tasks, under which the staff member has in fact taken on tasks corresponding to a permanent post (see, to that effect, Deshormes v Commission, paragraph 80 above, paragraphs 44 to 53) or to a post, included in the list of posts annexed to the section of the budget relating to the institution, which the budgetary authorities have defined as temporary (see paragraph 81 above). Similarly, there is no reason why, in the light of the tasks carried out by a staff member and the factual circumstances, the judicature should not legally classify as a contract of employment as contract staff, within the meaning of Article 3a of the CEOS, a contract, formally presented as a contract of employment as contract staff for auxiliary tasks, within the meaning of Article 3b of the CEOS, under which the staff member has, in reality, taken on manual or administrative support service tasks, within the meaning of Article 3a(a) of the CEOS. In the latter situations, there might also be a case for reclassifying successive fixed-term employment contracts as contracts of indefinite duration in the effective capacity of temporary staff, within the meaning of Article 2(a) or (c) of the CEOS, or of contract staff, within the meaning of Article 3a of the CEOS, pursuant to the provisions of the first subparagraph of Article 8 or Article 85 of the CEOS.
88That presupposes, however, that the staff member concerned has submitted to the AECE an application requesting, first, that the period of service formally completed in performance of a contract of employment as auxiliary staff, contract staff or contract staff for auxiliary tasks be recognised as a period of service completed as temporary staff or that the period of service formally completed in performance of a contract of employment as temporary staff, auxiliary staff or contract staff for auxiliary tasks be recognised as a period of service completed as contract staff and, secondly, that his successive fixed-term employment contracts be reclassified as a contract of indefinite duration in the effective capacity of temporary staff, within the meaning of Article 2(a) or (c) of the CEOS, or of contract staff, within the meaning of Article 3a of the CEOS, pursuant to the first subparagraph of Article 8 or Article 85 of the CEOS. Moreover, it is for the staff member concerned to prove, first, that posts corresponding to the duties effectively performed by him appeared, at that time, in the list of posts annexed to the section of the budget relating to the institution concerned and that those posts were available and, secondly, that the duties which he performed as auxiliary staff, contract staff or contract staff for auxiliary tasks corresponded to permanent tasks defined as public service (see, to that effect, Toledano Laredo and Garilli v Commission, paragraph 83 above, paragraphs 7 and 12) or to manual or administrative support service tasks, within the meaning of Article 3a(a) of the CEOS. In the absence of any provision of the CEOS determining specific means of proof, the staff member concerned is entitled to demonstrate by any conclusive means that he performed permanent public service duties (Toledano Laredo and Garilli v Commission, paragraph 83 above, paragraph 13) or manual or administrative support service tasks, within the meaning of Article 3a(a) of the CEOS. Similarly, it is for the staff member concerned to prove, by any means, that the conditions imposed by the first subparagraph of Article 8 or Article 85 of the CEOS for the conversion of a fixed-term employment contract into an employment contract of indefinite duration are fulfilled with respect to him.
89The complaints raised by the appellants under the fifth ground of appeal should be answered in the light of the legal context set out above.
90In the first place, it is important to deal with the complaints under the fifth ground of appeal which are directed against the rejection by the Civil Service Tribunal, in the judgment under appeal, of the complaints directed by the applicant in Case F-8/08 against one of the individual contested decisions, namely the decision by which the duration of her new contract of employment as contract staff for auxiliary tasks was limited to 15 December 2008.
91In so far as the appellants complain, in essence, that, when examining the lawfulness of the contested decision, the Civil Service Tribunal did not disapply the six-year rule arising from the decision of 28 April 2004, in that it unlawfully restricted the possibility for the AECE of concluding the new contract of employment as contract staff for auxiliary tasks for the entire period laid down in Article 88 of the CEOS, it should be pointed out that the applicant in Case F-8/08 complained, as is clear from paragraph 54 of the judgment under appeal, that the Commission deprived her of the benefit of an indefinite contract and of a genuine career prospect by offering, in the contested decision, only a new fixed-term contract of employment as contract staff for auxiliary tasks ending on 15 December 2008. Moreover, it is not apparent from paragraphs 41 to 57 of the judgment under appeal that the applicant in Case F-8/08 raised a plea of illegality against the six-year rule arising from the decision of 28 April 2004, alleging that the application of that rule restricted the possibility for the AECE of concluding the new contract of employment as contract staff for auxiliary tasks for the entire duration laid down in Article 88 of the CEOS. It follows that it is not open to the appellants to accuse the Civil Service Tribunal, under cover of the fifth ground of appeal, of having committed an error of law in failing to rule on the legality of the six-year rule arising from the decision of 28 April 2004, in the light of Article 88 of the CEOS.
92Moreover, in so far as the appellants complain that the Civil Service Tribunal did not find that the contested decision was vitiated by a failure to state reasons in the light of Article 88 of the CEOS, it should be pointed out that, as the appellants themselves admit in their written submissions, the duration of the new contract of employment as contract staff for auxiliary tasks offered to the applicant in Case F-8/08 was limited to 15 December 2008 under the six-year rule arising from the decision of 28 April 2004. It was not for the Civil Service Tribunal to examine whether that rule should not, in the case before it, be disapplied on the ground that it restricted the possibility for the AECE of concluding the new contract of employment as contract staff for auxiliary tasks for the entire duration laid down in Article 88 of the CEOS.
93Finally, as regards the complaint that the Civil Service Tribunal failed to examine, in all the employment contracts and addenda produced before it, whether the applicant in Case F-8/08 was performing permanent duties related to the Commission’s normal activity, it should be pointed out that, in accordance with the principles set out in paragraph 88 above, it was for that applicant to submit an application requesting that the period of service formally completed in performance of a contract of employment as auxiliary staff or as contract staff for auxiliary tasks be recognised as a period of service completed as temporary staff or as contract staff and to demonstrate, by any means, that all the conditions for the conversion of her successive fixed-term employment contracts into an indefinite contract were fulfilled in her case. It follows from the findings of fact made by the Civil Service Tribunal in paragraph 144 of the judgment under appeal that that did not occur in the case in question. Moreover, as the Civil Service Tribunal rightly pointed out in paragraphs 77 and 144 of the judgment under appeal, it was not for it to seek and identify, in the annexes to the application made at that instance, whether there were factors capable of filling the gaps therein, since the annexes have a purely evidential and instrumental function (Case T-333/99 X v ECB [2001] ECR II-3021, paragraph 190; Case T-31/99 ABB Asea Brown Boveri v Commission [2002] ECR II-1881, paragraph 113; and Case T-345/05 Mote v Parliament [2008] ECR II-2849, paragraph 75). It follows that the appellants’ complaint is unfounded.
94In the second place, it is appropriate to deal simultaneously with the complaints under the fifth ground of appeal which are directed against the rejection by the Civil Service Tribunal, in the judgment under appeal, of the complaints raised by the applicants in Case F-134/07 whose names appear in the annex against the individual decisions which determined their conditions of employment, in that they limited the duration of their employment contracts pursuant to Article 88 of the CEOS and the six-year rule arising from the decision of 28 April 2004 and/or rejected their applications to extend their employment contracts for an indefinite period.
95In so far as the appellants complain, in essence, that the Civil Service Tribunal infringed Article 253 EC by failing, in paragraph 148 of the judgment under appeal, to find, in the light of the general principles or minimum requirements concerning fixed-term work under the framework agreement, that there was no statement or an insufficient statement of reasons for the decisions by which the AECE refused to conclude new employment contracts or to renew their previous contracts of employment as contract staff for auxiliary tasks for an indefinite period, bearing in mind the limits laid down by Article 88 of the CEOS and the six-year rule arising from the decision of 28 April 2004, it should be noted that the CEOS and the decision of 28 April 2004 serve to meet the requirements arising from the principle prohibiting the abuse of rights as applied to the use of successive fixed-term employment contracts in the public service (paragraph 67 above), in that they provide an effective means of preventing the misuse of successive fixed-term employment contracts for the performance of permanent duties in the long term, affording due penalties for such abuse and nullifying the adverse consequences suffered by the person concerned. Therefore, in the case of successive fixed-term employment contracts, the AECE is not bound to state the reasons for any refusal to conclude a new employment contract or to renew the previous employment contract for an indefinite period other than by reference to the relevant provisions of the CEOS and, if appropriate, to the decision of 28 April 2004. It follows that the appellants are not justified in accusing the Civil Service Tribunal of having failed to find that there was no statement or an insufficient statement of reasons for the decisions by which the AECE refused to conclude new employment contracts or to renew for an indefinite period the previous employment contracts of the applicants in Case F-134/07 whose names appear in the annex, bearing in mind the limits laid down in that regard by Article 88 of the CEOS and the decision of 28 April 2004, in the light of the principle prohibiting abuse of rights as applied to the use of successive fixed-term employment contracts in the public service.
96In so far as the present complaints should, moreover, be interpreted as meaning that the Civil Service Tribunal unlawfully failed to take account of the fact that the applicants in Case F-134/07 whose names appear in the annex carried out permanent public service duties in the capacity of auxiliary staff, contract staff or contract staff for auxiliary tasks, or manual or administrative support service tasks, within the meaning of Article 3a(1)(a) of the CEOS, in the capacity of contract staff for auxiliary tasks, it follows from the above arguments that, in the context of the CEOS, the penalty for the abuse of rights alleged by the appellants should entail the reclassification of their successive fixed-term employment contracts on the basis of the tasks they actually carried out during their periods of service and the duration of those periods. That presupposes that the appellants can demonstrate that all the preconditions for such reclassification are met in their case (see paragraph 88 above). In this instance, it does not appear, either from the judgment under appeal or from the fifth ground of appeal, that the appellants submitted applications requesting that the periods of service formally completed in performance of a contract of employment as auxiliary staff, contract staff or contract staff for auxiliary tasks be recognised as periods of service completed as temporary staff or that the periods of service formally completed in performance of a contract of employment as contract staff for auxiliary tasks be recognised as periods of service completed as contract staff, that they sought the benefit of the provisions of the first subparagraph of Article 8 or Article 85 of the CEOS so as to enable their successive fixed-term employment contracts to be converted into contracts of indefinite duration or that, in support of those applications, they put forward all the evidence required for that purpose.
97It follows that the fifth ground of appeal must be rejected.
98It follows from all the above arguments that the judgment under appeal must be set aside in so far as it states that there is no need to adjudicate on the claims directed by the applicants in Case F-134/07 whose names appear in the annex against the decisions rejecting their complaints.
99The remainder of the appeal must be dismissed.
The consequences of setting aside part of the judgment under appeal
100Under Article 13(1) of Annex I to the Statute of the Court, if the appeal is well founded, the General Court may, where the decision of the Civil Service Tribunal is set aside, itself give judgment on the matter where the state of the proceedings permits a decision by the General Court. That is true, in the present case, of the claims directed by the applicants in Case F-134/07 whose names appear in the annex against the decisions rejecting their complaints (see paragraphs 44 and 98 above).
101It is apparent from the documents before the Court that the explicit decisions to reject the complaints of the applicants in Case F-134/07 whose names appear in the annex expressly adopt a position on the questions of law or of fact which had not been examined in the individual contested decisions. For it is in those decisions that, for the purposes of responding to the pleas of illegality raised in the complaints, the administration, for the first time, adopted a position on the legality of the individual contested decisions in the light of the CEOS and the decision of 28 April 2004 and on the inapplicability to the employment relationships between the Commission and the applicants concerned of the provisions of the framework agreement implemented by Directive 1999/70. In order to be able to call into question the merits of those assessments, the applicants concerned therefore had an interest in seeking the annulment of the decisions rejecting their complaints.
102It should, however, be observed that, in the judgment under appeal, the Civil Service Tribunal ruled on all the pleas and objections relied on at first instance by the applicants concerned in support both of their claim for annulment of the decisions rejecting their complaints and of their claim for annulment of the individual contested decisions. Moreover, in so far as the grounds of appeal were intended to contest the rejection of those pleas and objections by the Civil Service Tribunal in the judgment under appeal, they have been rejected by the present judgment.
103The reasons which, in the judgment under appeal, justified the rejection of the pleas and objections relied on by the applicants in Case F-134/07 whose names appear in the annex or which, in the present judgment, justify the confirmation of the rejection of the same pleas and objections by the Civil Service Tribunal, in so far as they were directed against the individual contested decisions, justify the rejection of those pleas and objections, in so far as they are directed against the decisions rejecting their complaints.
104The appeal brought by the applicants in Case F-134/07 whose names appear in the annex should therefore be dismissed in so far as that appeal seeks the annulment of the decisions rejecting their complaints.
Costs
105Pursuant to the first paragraph of Article 148 of the Rules of Procedure, where the appeal is well founded and the Court itself gives judgment in the case, the Court is to make a decision as to costs.
106Under the first subparagraph of Article 87(2) of the same Rules, which apply to the appeal procedure pursuant to Article 144 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
107Since the appellants have been unsuccessful in their claims and the Commission and the Council have applied for costs, the appellants are to bear their own costs and those incurred by the Commission and the Council in the present proceedings.
Operative part
On those grounds,THE GENERAL COURT (Appeal Chamber)hereby rules:
1.The judgment of the European Union Civil Service Tribunal (Second Chamber) of 4 June 2009 in Joined Cases F-134/07 and F-8/08 Adjemian and Others v Commission is set aside in so far as it states that there is no need to adjudicate on the claims directed by the applicants in Case F-134/07 whose names appear in the annex against the decisions rejecting their complaints.
2.The remainder of the appeal is dismissed.
3.The appeal brought by the applicants in Case F-134/07 whose names appear in the annex is dismissed in so far as that appeal seeks the annulment of the decisions rejecting their complaints.
4.Mr Vahan Adjemian and the 175 staff and former staff of the European Commission whose names appear in the annex are to bear their own costs and those incurred by the Commission and the Council of the European Union in the present proceedings.
Delivered in open court in Luxembourg on 21 September 2011.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.