Contents
Judgment of the General Court (Fourth Chamber, Extended Composition)5 July 2023note(Civil service — Members of the temporary staff — Recruitment — Contract of employment — Article 2(b) of the CEOS — Rejection of an application — Promotion — Reclassification — New contract — Expiry of the contract — Article 8, second paragraph, and Article 10(3) of the CEOS — Error of law — Equal treatment — Action for annulment — Admissibility)In Case T‑223/21,SE, represented by L. Levi, lawyer,vEuropean Commission, represented by T. Bohr, L. Vernier and I. Melo Sampaio, acting as Agents,THE GENERAL COURT (Fourth Chamber, Extended Composition),composed of R. da Silva Passos, President, S. Gervasoni, N. Półtorak (Rapporteur), I. Reine and T. Pynnä, Judges,Registrar: P. Cullen, Administrator,having regard to the written part of the procedure,further to the hearing on 19 January 2023,gives the following
Judgment
1By his action under Article 270 TFEU, the applicant, SE, seeks, first, the annulment of the decision of the European Commission of 4 August 2020 rejecting his application for the vacant post published under reference COM/2020/1474 (‘the decision rejecting the application’), and of the reply of 28 October 2020 to his request under Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), pertaining to his eligibility to be promoted, reclassified or assigned to another post and, secondly, compensation for the harm which he claims to have suffered as a consequence of those decisions.
Background to the dispute
2On 16 May 2018, the applicant took up his duties at the Commission as a member of the temporary staff in Grade AST 3 on the basis of Article 2(b) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) for a period of three years (‘the initial contract’). On 18 January 2021, the initial contract was extended, by way of a supplementary agreement, for a period of two years, expiring on 15 May 2023.
3From the date of his engagement until 30 June 2018, the applicant was assigned to the unit ‘[confidential]’note as ‘[confidential]’. On 1 July 2018, owing to a reorganisation of the Directorate-General (DG) ‘[confidential]’, he was reassigned within the same unit as ‘[confidential]’.
4On 1 April 2020, a permanent post in the administrator (AD) function group became available within the applicant’s unit. The applicant applied for that post, which was open for applications by vacancy notice COM/2020/816.
5On 15 May 2020, the applicant’s head of unit informed him that DG ‘Human Resources and Security’ had objected to his application on the ground that, under the second paragraph of Article 8 of the CEOS, a member of the temporary staff, such as the applicant, engaged on the basis of Article 2(b) of the CEOS, could have only one contract of that type in the course of his or her career.
6On 29 June 2020, the applicant submitted a request under Article 90(1) of the Staff Regulations (‘the request of 29 June 2020’) seeking to obtain a definitive decision of the administration on whether, in particular, he was eligible to be promoted, reclassified or assigned to a post in a higher grade and whether he could apply for and be assigned to other temporary staff posts within the Commission.
7On 10 July 2020, the applicant applied for another permanent post in the AD function group which had become vacant in his unit and was the subject of vacancy notice COM/2020/1474 (‘the post at issue’).
8On 24 July 2020, a note was drawn up by the applicant’s head of unit, proposing that, since no suitable internal or external candidate had applied, the applicant should be recruited to the post at issue.
9On 29 July 2020, the applicant’s head of unit informed him orally that DG ‘Human Resources and Security’ objected to his application for the post at issue owing to his status as a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS.
10On 4 August 2020, owing to an error in the coding of the applicant’s name, a notification rejecting his application for the post at issue was sent, via the Commission’s staff management IT system ‘Sysper 2’, to an incorrect electronic address. A copy of that decision was sent to the applicant by email of 4 March 2021.
11On 10 September 2020, after the applicant had requested information about the progress of his application, the deputy head of unit of DG ‘Human Resources and Security’ informed him, by return email, that ‘it [wa]s not possible for a temporary agent at the Commission to obtain a second contract as a temporary agent in the Commission during his/her career’, and invited the applicant to await the decision of the authority authorised to conclude contracts of employment (‘the AACC’) on the request of 29 June 2020.
12On 15 September 2020, the applicant learnt that another person had commenced service in the post at issue.
13On 16 September 2020, the applicant submitted a complaint under Article 90(2) of the Staff Regulations in order to challenge the decision rejecting the application (‘complaint R/440/20’).
14On 28 October 2020, the applicant received a reply from the administration to the request of 29 June 2020 (‘the reply of 28 October 2020’).
15On 2 November 2020, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the reply of 28 October 2020 (‘complaint R/507/20’).
16On 3 November 2020, the applicant submitted additional observations and pleas in connection with complaint R/440/20.
17By decision of 18 January 2021, the administration rejected complaint R/440/20 (‘the decision rejecting complaint R/440/20’).
18On 19 January 2021, after having learnt of the decision rejecting complaint R/440/20, the applicant contacted the Commission’s mediation service, requesting it to intervene in complaint R/507/20 and ensure that the Commission did indeed examine the main issues raised.
19On 3 March 2021, the Commission adopted a decision declaring complaint R/507/20 inadmissible, which decision nonetheless examines, in the alternative, some of the applicant’s arguments (‘the decision rejecting complaint R/507/20’).
Forms of order sought
20The applicant claims that the Court should:– annul the decision rejecting the application;– annul the reply of 28 October 2020;– annul, in so far as necessary, the decision rejecting complaint R/440/20 and the decision rejecting complaint R/507/20;– order the Commission to make compensation for the material damage which he allegedly suffered from the loss of an opportunity to be appointed or assigned to the post at issue as from 1 September 2020;– order the Commission to make compensation for the material damage, estimated at EUR 24245, which he allegedly suffered from the loss of an opportunity to be promoted as from 16 May 2020;– order the Commission to make compensation for the material damage which he allegedly suffered from the loss of an opportunity to become a permanent official by taking part in internal competitions restricted to temporary agents engaged on the basis of Article 2(b) of the CEOS, AD level;– order the Commission to pay the costs.
21The Commission contends that the Court should:– dismiss the action as manifestly inadmissible;– in any event, dismiss the action as unfounded;– order the applicant to pay the costs.
Law
Subject matter of the dispute
22The applicant claims that the Court, in addition to annulling both the decision rejecting the application and the reply of 28 October 2020, should also annul, in so far as necessary, the decisions rejecting complaints R/440/20 and R/507/20.
23In that regard, it should be borne in mind that, according to settled case-law, claims for annulment formally directed against a decision rejecting a complaint have the effect, where that decision lacks any independent content, of bringing before the Court the act against which the complaint was submitted (see judgment of 5 June 2019, Bernaldo de Quirós v Commission, T‑273/18, not published, EU:T:2019:371, paragraph 20 and the case-law cited).
24Any decision rejecting a complaint, whether express or implied, if it is straightforward, merely confirms the act or failure to act complained of and, when taken in isolation, does not constitute a challengeable act, so that the claims made against that decision which has no autonomous content in relation to the initial decision must be regarded as being directed against the initial act (judgment of 12 September 2019, XI v Commission, T‑528/18, not published, EU:T:2019:594, paragraph 20).
25However, 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 or will even regard it as an act adversely affecting the applicant replacing the contested measure (see, to that effect, judgment of 12 September 2019, XI v Commission, T‑528/18, not published, EU:T:2019:594, paragraph 21).
26In the first place, as regards the claim for annulment of the decision rejecting the application, it should be observed that the decision rejecting complaint R/440/20 confirms the Commission’s refusal to consider the applicant’s application for the post at issue to be eligible, while explaining the grounds for that refusal. Accordingly, the present action must be regarded as having the effect of bringing before the Court a claim for annulment of the decision rejecting the application, the legality of which must be examined by taking into consideration the statement of reasons in the decision rejecting complaint R/440/20.
27In the second place, as regards the claim for annulment of the reply of 28 October 2020, it should be noted that the AACC rejects as inadmissible complaint R/507/20, but it nevertheless examines, in the alternative, the arguments raised by the applicant against the reply of 28 October 2020. For those reasons, those grounds must be taken into consideration in assessing the legality of the reply of 28 October 2020 within the meaning of the case-law cited in paragraph 25 above.
Claim for annulment of the decision rejecting the application
Admissibility
28It should be borne in mind that the Commission has pleaded that the present claim is inadmissible under Article 130(1) of the Rules of Procedure of the General Court, arguing, in essence, that the applicant had no legal interest in bringing proceedings for annulment of the decision rejecting the application.
29However, it must be pointed out that, at the hearing, the Commission stated that it was withdrawing its plea alleging the inadmissibility of the claim for annulment of the decision rejecting the application, formal note of which was taken in the minutes of the hearing.
Substance
30In support of his claim for annulment of the decision rejecting the application, the applicant relies on four pleas in law, alleging, respectively, first, failure to notify the decision and failure to state reasons; secondly, irregular interpretation and infringement of the second paragraph of Article 8 and Article 10(3) of the CEOS; thirdly, failure to follow established administrative practices, unequal treatment and age discrimination; and, fourthly, lack of transparency, breach of the right to be heard and breach of the right to an effective remedy.
–The first plea, alleging failure to notify the decision rejecting the application and failure to state reasons
31The applicant maintains that he never received formal notification of the outcome of his application for the post at issue, contrary to the obligation laid down in the second paragraph of Article 25 of the Staff Regulations and to the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’). According to the applicant, it was only on 15 September 2020 that he learnt that his application had been rejected when another person commenced service in the post at issue as a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS. Thus, it cannot be considered that the decision rejecting complaint R/440/20 redressed the failure to state reasons in the decision rejecting the application.
32The Commission disputes the applicant’s arguments.
33As a preliminary point, it must be noted that the applicant submits, in essence, that the grounds for the decision rejecting the application were not communicated to him because of the incorrect notification of that decision. He therefore seeks to show that the Commission failed to fulfil its obligation to state reasons.
34According to settled case‑law, the obligation to state reasons laid down by the second paragraph of Article 25 of the Staff Regulations, which merely reiterates the general obligation laid down in the second paragraph of Article 296 TFEU, is intended, first, to provide the person concerned with details sufficient to allow him or her to ascertain whether the measure adversely affecting him or her is well founded and whether it is appropriate to bring proceedings before the Court and, secondly, to enable the Court to review the legality of the measure (judgment of 16 October 2019, ZV v Commission, T‑684/18, not published, EU:T:2019:748, paragraph 72 and the case-law cited).
35The adequacy of the statement of reasons must be assessed in relation to the specific circumstances of the case, in particular the content of the act, the nature of the reasons given and the interest which the addressee may have in receiving explanations (judgment of 9 July 2019, VY v Commission, T‑253/18, not published, EU:T:2019:488, paragraph 49). In particular, the reasons given for a decision are adequate if it was adopted in circumstances known to the official concerned which enable him or her to understand the scope of the measure concerning him or her (judgment of 29 September 2005, Napoli Buzzanca v Commission, T‑218/02, EU:T:2005:343, paragraph 64).
36It must be recalled that the AACC is not required to state reasons for decisions not to accept an application. It is required, by contrast, to state reasons for its decision rejecting a complaint lodged by a candidate pursuant to Article 90(2) of the Staff Regulations, and the reasons for that decision are deemed to coincide with the reasons forming the basis of the decision against which the complaint was aimed (see judgment of 9 July 2019, VY v Commission, T‑253/18, not published, EU:T:2019:488, paragraph 47 and the case-law cited).
37The applicant submits that he never received, via Sysper 2, notification from Unit 5 ‘Account management centre’ of DG ‘Human Resources and Security’ informing him that he was not eligible for the post at issue. Furthermore, even on the assumption that he did receive such notification, the content of the notification was insufficient to inform him properly.
38In that regard, it must be noted that it is apparent from the documents before the Court that the Commission admitted making an error in the coding in Sysper 2 of the addressee of the notification of the decision rejecting the application. Although that notification was sent on 4 August 2020, it did not reach the applicant on that date, since it was not communicated to him until 4 March 2021.
39In those circumstances, it is necessary to determine whether, given a late communication of the decision rejecting the application, the applicant was nevertheless put in a position to understand the grounds substantiating the Commission’s finding that his application for the post at issue was ineligible.
40First, it should be noted that the applicant’s head of unit informed him orally, on 29 July 2020, that DG ‘Human Resources and Security’ or the AACC had objections to his appointment to the post at issue, on account of his status as a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS.
41Secondly, on 10 September 2020, after the applicant had requested information about the progress of his application, he received a brief communication from DG ‘Human Resources and Security’ concerning his application for the post at issue (‘the email of 10 September 2020’). This informed him, inter alia, that ‘it [wa]s not possible for a temporary agent at the Commission to obtain a second contract as a temporary agent in the Commission during his/her career’.
42Thirdly, as the applicant acknowledges in the application, he became aware on 15 September 2020 that his application had been rejected, when he learnt that another person had commenced service in the post at issue.
43In the light of the foregoing, at the time when the applicant became aware of the existence of the decision rejecting the application, that is to say, by 15 September 2020 at the latest, the circumstances in which that decision was adopted were known to him, within the meaning of the case-law cited in paragraph 35 above.
44In that regard, in particular, the email of 10 September 2020 contains a statement of reasons which is nonetheless precise and detailed and explains the ground precluding the applicant from being eligible for the post at issue, namely that he cannot obtain a second contract as a member of the temporary staff on the basis of Article 2(b) of the CEOS within the Commission.
45The fact that the applicant was in a position to challenge, in complaint R/440/20, the Commission’s interpretation of the second paragraph of Article 8 of the CEOS shows that he had understood that the ground for rejecting his application was linked to his status as a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS.
46Lastly, given that the decision rejecting the application did not necessarily have to state reasons, in accordance with the case-law cited in paragraph 36 above, it is sufficient, in order to reject the applicant’s arguments alleging a failure to state reasons, to note that, on 18 January 2021, the Commission adopted an express decision rejecting complaint R/440/20 and that, in that decision, the AACC provided the applicant with sufficient details to assess whether the decision rejecting the application was well founded and to enable him to challenge its legality. Similarly, the statement of reasons in the decision rejecting complaint R/440/20 enables the Court to review the legality of the decision rejecting the application.
47As regards the applicant’s contention that the author of the email of 10 September 2020 was not competent to adopt the decision rejecting the application, it must be found that that email is not a decision rejecting the application, but confirms and explains the grounds of the decision rejecting the application. Account must also be taken of the circumstances known to the applicant, which enabled him, as established in paragraph 43 above, to understand the scope of the measure taken against him. Accordingly, it must be held that that argument is not relevant for the purposes of examining the adequacy of the statement of reasons.
48The first plea must therefore be rejected.
–The second plea, alleging irregular interpretation of the second paragraph of Article 8 and Article 10(3) of the CEOS
49The applicant submits that the Commission infringed the second paragraph of Article 8 of the CEOS in that it considered that he could not conclude, as a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS, a second contract as a temporary agent engaged on the basis of Article 2(b) of the CEOS at the Commission.
50In that regard, the applicant submits, in essence, that, contrary to the Commission’s claims, it does not follow from any provision of the CEOS that it is impossible for a member of the temporary staff of the Commission engaged on the basis of Article 2(b) of the CEOS to obtain a second contract in that same capacity during his or her career. In particular, it is not apparent from the second paragraph of Article 8 of the CEOS that a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS may conclude only one contract as a temporary agent on that basis.
51The applicant adds that, even on the assumption that the second paragraph of Article 8 of the CEOS somehow limits the number of contracts during the initial appointment, that article no longer applies because, under Article 10(3) of the CEOS, the applicant can be appointed to a new post, including at a higher grade, via an agreement supplementary to his contract, and therefore without being required to conclude a new contract.
52The Commission disputes the applicant’s arguments.
53The Commission contends that the post at issue was a permanent post which, so far as temporary staff were concerned, could therefore be opened only to temporary staff engaged on the basis of Article 2(b) of the CEOS, to the exclusion of the other categories of temporary staff. Since the applicant was already a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS, he could not obtain another contract as a member of the temporary staff engaged on that same basis at the Commission, in accordance with the second paragraph of Article 8 of the CEOS. Therefore, his engagement in the post at issue would only have been possible if it had not required the conclusion of a new contract.
54As a preliminary point, it should be noted that, at the time when the applicant applied for the post at issue, he performed his duties under a contract as a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS at grade AST 3 for an initial period of three years, before that period was subsequently extended for a period of two years, which was scheduled to expire in May 2023. It was, therefore, during the initial contract that the applicant applied for the post at issue, corresponding to a permanent post as an administrator vacant in the department in which he was working when he submitted his application.
55In the decision rejecting the application, the AACC considered that the applicant’s application for the post at issue was ineligible on the ground that his engagement in that post would have required the conclusion of a new contract as a member of the temporary staff on the basis of Article 2(b) of the CEOS, which, according to the Commission, would have been contrary to the second paragraph of Article 8 of the CEOS. Thus, the Commission bases its decision exclusively on its interpretation of the second paragraph of Article 8 of the CEOS.
56That interpretation is disputed by the applicant, who submits that the Commission erred in law in considering that the second paragraph of Article 8 of the CEOS had to be interpreted as precluding a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS – whose initial contract, like the applicant’s, was ongoing – from obtaining another contract as a member of the temporary staff on the basis of Article 2(b) of the CEOS.
57It must be recalled that 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, therefore, only by way of exception that such posts may be filled by other staff (see judgment of 13 July 2022, TL v Commission, T‑438/21, not published, EU:T:2022:455, paragraph 33 and the case-law cited).
58Thus, although Article 2(b) 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. Furthermore, under the second paragraph of Article 8 of the CEOS, in the version applicable to the present dispute, temporary staff to whom Article 2(b) or (d) of the CEOS applies may not be engaged for more than four years, but their engagement may be limited to any shorter duration, and their contracts may be renewed not more than once for a maximum period of two years, if the possibility of renewal has been provided for in the initial contract and within the limits provided for in that contract. At the end of that time, they must no longer be employed as temporary staff under those provisions. On the expiry of their contracts, such servants may be assigned to established posts in the institutions only if they are appointed as officials in accordance with the Staff Regulations.
59In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. The origins of a provision of EU law may also provide information relevant to its interpretation (see judgment of 7 September 2022, LR v EIB, T‑529/20, EU:T:2022:523, paragraph 19 and the case-law cited).
60In the first place, as regards the literal interpretation of the second paragraph of Article 8 of the CEOS, reproduced in paragraph 58 above, it should be noted, at the outset, that that article does not lay down any express limitation on the number of contracts as a member of the temporary staff, engaged on the basis of Article 2(b) of the CEOS, which a temporary agent might conclude during the cumulative total period for the provision of services as a temporary agent engaged on the basis of Article 2(b) of the CEOS, which Article 8 fixes at six years. Moreover, the English-language version of the second paragraph of Article 8 of the CEOS refers to several contracts of employment and not to a single contract as regards temporary staff engaged on the basis of Article 2(b) of the CEOS. Thus, that version expressly uses the plural regarding the expressions ‘their contracts may be renewed’ and ‘on the expiry of their contracts’.
61However, according to the Commission, it is apparent from the literal interpretation of the second paragraph of Article 8 of the CEOS and, in particular, from the use of the expressions ‘at the end of that time,’ and ‘on the expiry of their contracts’, that the EU legislature intended to prevent a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS from being able, where his or her contract as a temporary agent based on Article 2(b) of the CEOS ended, to enter into a new contract as a temporary agent on the basis of Article 2(b) of the CEOS. That unequivocally means that a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS cannot obtain another contract as a temporary agent on that same basis during the rest of his or her career. From that point of view, when a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS, who has not succeeded in a competition permitting appointment as an official in accordance with the Staff Regulations, applies for a permanent post, he or she is necessarily ineligible, unless it can be established that his or her reassignment does not require the conclusion of a new contract as a member of the temporary staff on the basis of Article 2(b) of the CEOS.
62In the applicant’s view, the expiry of the contract must be distinguished from premature ending or termination of the contract. In that regard, he submits that the term ‘expiry’ of the contract cannot be construed to include premature ending of the contract, or termination of the contract, irrespective of the method of interpretation used. That interpretation is supported by the wording of Article 47(b) of the CEOS.
63First, the Court notes, as regards the expression ‘that time’ referred to in the second paragraph of Article 8 of the CEOS, that it designates the duration of the initial contract as referred to in the second sentence of the second paragraph of Article 8 of the CEOS, which may not be for more than four years, possibly increased by the duration of a renewal for a maximum period of two years.
64Consequently, it must be understood that the phrase ‘at the end of that time’ designates the end of the engagement of the member of the temporary staff recruited on the basis of Article 2(b) of the CEOS, meaning either, where there is no renewal, the expiry of the initial contract, or, where a renewal is granted, the expiry of the extension granted.
65However, at the time when the decision rejecting the application was adopted, the applicant’s contract as a member of the temporary staff based on Article 2(b) of the CEOS, which had not yet been renewed, was still ongoing and the applicant was, therefore, not ‘at the end of that time’ within the meaning of the second paragraph of Article 8 of the CEOS.
66Secondly, as regards the expression ‘on the expiry of their contracts’ referred to in the second paragraph of Article 8 of the CEOS, in the absence of a definition, in the Staff Regulations, of the concept of ‘expiry’, that concept must be interpreted in accordance with its usual meaning in everyday language (see, to that effect, judgment of 7 September 2022, LR v EIB, T‑529/20, EU:T:2022:523, paragraph 23 and the case-law cited).
67It should be noted that, in its usual meaning, the word ‘expiry’ refers to the ‘end of a period’, that is, in the present case, the end of the period for which the contract of a member of the temporary staff was concluded.
68In the second place, the contextual interpretation of the fourth sentence of the second paragraph of Article 8 of the CEOS supports the literal interpretation of that provision.
69It should be noted, in that regard, that Article 47(b)(ii) of the CEOS provides that ‘if the institution terminates the contract, the servant shall be entitled to compensation equal to one-third of his basic salary for the period between the date when his duties end and the date when his contract expires’. It thus draws a distinction between the termination and the expiry of the contract of a member of the temporary staff.
70Since identical expressions within the same act must be interpreted in a uniform manner (see, to that effect and by analogy, judgment of 18 September 2019, Peters, C‑700/17, EU:C:2019:753, paragraph 18), there is no reason to call into question the establishment, by the legislature, of a differentiation between the termination and the expiry of the contract by the provisions of the Staff Regulations.
71Thus, contrary to what the Commission contends, the concept of ‘expiry of a contract’ referred to in the fourth sentence of the second paragraph of Article 8 of the CEOS is not equivalent to the concept of ‘termination of a contract’.
72Consequently, if, as the Commission maintains, the engagement of the applicant in the post at issue would necessarily have resulted in the termination of his contract as a member of the temporary staff concluded on the basis of Article 2(b) of the CEOS, the fourth sentence of the second paragraph of Article 8 of the CEOS would not be applicable to the applicant’s situation.
73In the light of the foregoing, it must be concluded that it is not apparent from the wording of the second paragraph of Article 8 of the CEOS that it would not be possible for a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS to conclude a new contract as a temporary agent on the basis of Article 2(b) of the CEOS during the period of his or her initial contract.
74In the third place, the teleological interpretation of the second paragraph of Article 8 of the CEOS confirms the literal and contextual interpretations of that provision.
75In accordance with the case-law cited in paragraph 59 above, the second paragraph of Article 8 of the CEOS must be interpreted in the light, in particular, of its purposes and those underlying the CEOS more generally (see, to that effect, judgment of 5 February 2014, Drakeford v EMA, F‑29/13, EU:F:2014:10, paragraph 45).
76First, it should be borne in mind that, in accordance with the case-law cited in paragraph 57 above, permanent posts in the institutions are, in principle, intended to be filled by officials and that it is, therefore, only by way of exception that such posts may be filled by other staff, such as temporary staff engaged on the basis of Article 2(b) of the CEOS.
77Following that logic, Article 3(1) of Commission Decision C(2013) 9049 of 16 December 2013 on policies for the engagement and use of temporary agents provides, in particular, that ‘as permanent posts are intended for the appointment of officials, the total of all temporary agents under Article 2(b) of the CEOS shall not exceed 3% of the total number of authorised permanent posts in the Commission’. In addition, Article 3(2) of that decision provides that ‘recourse to such engagements may only be approved after an unsuccessful publication of the post pursuant to Articles 4 and 29 of the Staff Regulations’.
78It follows that the main objective of the second paragraph of Article 8 of the CEOS is to limit the recourse to temporary agents engaged on the basis of Article 2(b) of the CEOS, who temporarily occupy permanent posts intended to be occupied by officials, and that the maximum total duration of six years for the employment relationship of a temporary agent engaged in that capacity on the basis of Article 2(b) of the CEOS is intended to serve that objective.
79Secondly, in the absence of any specific provision precluding such an approach, it is necessary to be guided, for the purposes of interpreting the second paragraph of Article 8 of the CEOS, by the Framework agreement on fixed-term work, concluded on 18 March 1999 (‘the framework agreement’), which is annexed to 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) (judgment of 5 February 2014, Drakeford v EMA, F‑29/13, EU:F:2014:10, paragraph 44).
80In that regard, it should be borne in mind that the fact that a directive is not, as such, binding on the institutions or agencies does not preclude those institutions or agencies from having to take it into account indirectly in their relations with their officials and other servants (judgment of 13 April 2011, Scheefer v Parliament, F‑105/09, EU:F:2011:41, paragraph 54).
81Furthermore, Directive 1999/70 and the framework agreement which it is intended to implement are, within the limits set by the case-law, capable of being relied on by individuals against the EU institutions for the purposes, as far as possible, of interpreting the rules of the Staff Regulations and of the CEOS in a manner consistent with the requirements laid down by the framework agreement (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 57).
82It follows that the legislature, in exercising its legislative power under Article 336 TFEU to adopt the CEOS, and the AACC, 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 Union and its staff, prevent any abuse of rights arising from the use of successive fixed-term employment contracts, in accordance with the objectives of improved living and working conditions and proper social protection for workers, referred to in Article 151 TFEU (judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 61).
83The framework agreement makes stable employment a major element in the protection of workers within the European Union (judgment of 8 March 2012, Huet, C‑251/11, EU:C:2012:133, paragraphs 35 and 44). More particularly, Clause 5(1) thereof seeks specifically to place limits on successive recourse to fixed-term employment contracts or relationships, which is regarded as a potential source of abuse to the detriment of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure. In particular, Clause 5(1)(c) of the framework agreement prescribes the setting of a maximum number of renewals of fixed-term employment contracts or relationships (see judgment of 5 February 2014, Drakeford v EMA, F‑29/13, EU:F:2014:10, paragraph 44 and the case-law cited).
84It should be noted that Article 8 of the CEOS has already been held to be consistent with the framework agreement, in that it did not undermine its purposes and minimum requirements (see, to that effect, judgment of 11 July 2012, AI v Court of Justice, F‑85/10, EU:F:2012:97, paragraph 140).
85It must be observed that the second paragraph of Article 8 of the CEOS provides, first, for a maximum period for which the member of the temporary staff referred to in Article 2(b) of the CEOS is engaged and, secondly, for a limit on the number of renewals which may be granted to that staff member, namely, in the present case, a single renewal.
86The objectives pursued by the establishment of those two limits must also be taken into account for the purposes of the teleological interpretation of the second paragraph of Article 8 of the CEOS.
87As regards the maximum duration of the engagement, according to the case-law, the second paragraph of Article 8 of the CEOS, in fixing the maximum total duration of the employment relationship of a member of the temporary staff engaged under Article 2(b) of the CEOS, contains one of the measures listed in Clause 5 of the framework agreement intended to prevent the abuse of successive fixed-term contracts, in this case the measure provided for in paragraph 1(b) of that clause (judgment of 11 July 2012, AI v Court of Justice, F‑85/10, EU:F:2012:97, paragraph 138).
88In that regard, the parties confirmed at the hearing that the total duration of the applicant’s engagement as a member of the temporary staff under Article 2(b) of the CEOS, whether or not he was recruited to the post at issue, could not exceed the maximum period of six years laid down in the second paragraph of Article 8 of the CEOS.
89As regards the limit on the number of possible renewals, as the Commission acknowledged at the hearing, the second paragraph of Article 8 of the CEOS, in limiting the number of renewals of the contract of a member of the temporary staff engaged under Article 2(b) of the CEOS, also contains one of the measures listed in Clause 5 of the framework agreement intended to prevent the abuse of successive fixed-term contracts, in this case the measure provided for in paragraph 1(c) of that clause; accordingly, the possibility of a single renewal of the contract of a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS seeks to ensure that the institution which engages him or her complies with the need to protect the temporary agent engaged on the basis of Article 2(b) of the CEOS against abuse which might arise from the use of numerous successive short fixed-term contracts (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 66).
90However, it must be found that the possibility for a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS to conclude a new contract as a temporary agent on the same basis for a duration not exceeding the maximum period of six years laid down in the second paragraph of Article 8 of the CEOS does not, in itself, infringe the objective of that provision, intended to limit in time the occupation of permanent posts by members of the temporary staff.
91Moreover, there is nothing to indicate that the conclusion of a new contract would have given rise to a risk of abuse of rights to the detriment of the applicant that may result from the use of successive fixed-term employment contracts.
92Accordingly, the second paragraph of Article 8 of the CEOS does not preclude a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS from concluding a new contract as a temporary agent on the basis of Article 2(b) of the CEOS, provided that the temporal limitation of six years laid down in that provision is complied with.
93That interpretation of the second paragraph of Article 8 of the CEOS is also consistent with the practice of other EU institutions and agencies. In response to a measure of organisation of procedure, the Commission provided the results of a consultation which it had initiated in June 2022 with other EU institutions and agencies concerning the possibility for a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS to conclude a new contract in that capacity within the maximum period laid down in the second paragraph of Article 8 of the CEOS. Those results show that the majority of the institutions and agencies questioned envisage or provide for such a possibility.
94In the light of all of the foregoing, it must be concluded that the decision rejecting the application, finding the applicant’s application to be ineligible, is based on an erroneous interpretation of the second paragraph of Article 8 of the CEOS.
95Accordingly, the present plea must be upheld and the decision rejecting the application annulled, and there is no need to examine the other arguments of the present plea and the other pleas put forward in support of the claim for annulment of the decision rejecting the application.
The claim for annulment of the reply of 28 October 2020
Admissibility
96The Commission has raised a plea of inadmissibility directed against the present head of claim, pursuant to Article 130(1) of the Rules of Procedure, on the ground that the reply of 28 October 2020 does not constitute an act adversely affecting the applicant.
97First, the Commission maintains that the reply of 28 October 2020 is merely a reply to the questions submitted by the applicant in the request of 29 June 2020 and is intended only to give an interpretation of the provisions of the Staff Regulations relied on. Thus, the answers given do not modify the applicant’s legal status.
98Secondly, the Commission maintains that it did not fail to act by not organising a promotion procedure for members of the temporary staff engaged on the basis of Article 2(b) of the CEOS and that, if the applicant wished to challenge the absence of promotion, he was required to challenge the promotion decision which did not contain his name.
99The applicant contends that his application is admissible.
100It should be noted that, in the reply of 28 October 2020, the AACC expresses its views, at the applicant’s request, on the application of legal provisions in respect of the applicant and on four questions, relating, principally, to the application of Article 45(1) of the Staff Regulations, Articles 10 and 15 of the CEOS and Clause 4(1) of the framework agreement to his individual situation.
101In that regard, first, the AACC states that Articles 10 and 15 of the CEOS do not confer on members of staff a ‘direct right’ to promotion, nor do they give rise to any obligation on the part of the administration to organise reclassification exercises in respect of temporary agents. Secondly, the AACC states that the conclusion of a second contract on the basis of Article 2(b) of the CEOS is not possible in the applicant’s case and that, in principle and save for exceptional circumstances, it is not possible to reassign the applicant to a permanent post other than that which he held. Thirdly, the AACC states that Article 45(1) of the Staff Regulations does not apply to his situation directly and, fourthly, that the framework agreement is not applicable in the applicant’s case since his factual situation, as a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS, is different from that of temporary agents recruited under other legal provisions.
102Thus, the reply of 28 October 2020 essentially addresses two subjects relating, first, to the possibility of ‘promoting’ or ‘reclassifying’ a temporary agent engaged on the basis of Article 2(b) of the CEOS and, secondly, to the possibility for a temporary agent recruited on the basis of Article 2(b) of the CEOS of obtaining a new contract even though his or her contract is ongoing.
103According to settled case-law, an act adversely affecting an applicant is one which produces binding legal effects capable of directly and immediately affecting an applicant’s interests by bringing about a distinct change in his or her legal position; such an act must emanate from the competent authority and include a definitive position adopted by the administration (see order of 10 September 2021, Kühne v Parliament, T‑691/20, not published, EU:T:2021:600, paragraph 26 and the case-law cited).
104As regards the claim for annulment of the reply of 28 October 2020, directed at the grounds explaining to the applicant that he cannot, under the second paragraph of Article 8 of the CEOS, benefit from another contract as a temporary agent on the basis of Article 2(b) of the CEOS, it should be noted that the AACC’s statement of reasons in that regard merely reiterates its position, set out in the decision rejecting the application. It follows that that part of the reply of 28 October 2020, already preceded by the adoption of the decision rejecting the application, does not bring about a distinct change in the applicant’s legal position within the meaning of the case-law cited in paragraph 103 above.
105The claim for annulment of the reply of 28 October 2020, directed at the grounds explaining to the applicant that he cannot, under the second paragraph of Article 8 of the CEOS, benefit from another contract as a temporary agent on the basis of Article 2(b) of the CEOS must, therefore, be dismissed as inadmissible.
106As regards the remainder of the claim for annulment of the reply of 28 October 2020, it should be recalled that the EU judicature may assess, in the circumstances of the case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on its inadmissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52).
107In view of the circumstances of the present case and the principle of the proper administration of justice, it is necessary to examine the claim for annulment of the reply of 28 October 2020 as regards that part relating to the possibility of promoting or reclassifying, within the Commission, a member of the temporary staff on the basis of Article 2(b) of the CEOS, without first ruling on the admissibility of that claim, inasmuch as it is, in any event and for the reasons set out below, unfounded.
Substance
108In support of his claim for annulment of the reply of 28 October 2020, the applicant relies, in essence, on two pleas in law, alleging, first, irregular interpretation and infringement of the second paragraph of Article 8 and Article 10(3) of the CEOS and, secondly, infringement of the principle of equal treatment.
–The first plea, alleging irregular interpretation and infringement of the second paragraph of Article 8 and Article 10(3) of the CEOS
109The applicant submits that the administration’s reply, which, in his view, must be interpreted as a refusal to promote, reclassify or appoint to another post, is manifestly erroneous and constitutes an infringement of Article 45 of the Staff Regulations, the second paragraph of Article 8 and Article 10(3) of the CEOS.
110The Commission disputes the applicant’s arguments.
111First, as regards the possibility for the applicant to benefit from a promotion within the meaning of Article 45 of the Staff Regulations, it must be held, as the Commission rightly points out, that the CEOS do not refer to promotion. Article 45 of the Staff Regulations provides that promotion ‘shall be exclusively by selection from among officials who have completed a minimum of two years in their grade’.
112The CEOS do not therefore provide for the possibility of promotion for temporary staff, but rather, pursuant to Articles 15 and 16 thereof, for them to be classified in a grade corresponding to the duties which they are required to perform during the term of their contract (see, to that effect, judgment of 14 December 2016, Todorova Androva v Council, T‑366/15 P, not published, EU:T:2016:729, paragraph 48).
113It must, therefore, be concluded that the Commission was right to consider, in the reply of 28 October 2020, that the promotion procedure under Article 45 of the Staff Regulations concerned only officials.
114Secondly, as regards the possibility of reclassification, for the purposes of Article 10(3) of the CEOS, it should be noted that, in the reply of 28 October 2020, the Commission does not maintain, contrary to the applicant’s claims, that the second paragraph of Article 8 of the CEOS prohibits the reclassification of temporary staff engaged on the basis of Article 2(b) of the CEOS. It merely asserts that, in view of the broad discretion which it enjoys in that regard, it is possible for it not to provide for the organisation of an exercise for reclassifying members of the temporary staff on fixed-term contracts, including temporary staff engaged on the basis of Article 2(b) of the CEOS.
115Furthermore, it should be noted that Article 10(3) of the CEOS, which pertains to the possibility of reclassification, does not in any way establish a right for any members of the temporary staff to benefit, at their request, from reclassification.
116It must be borne in mind that, although, under the principle of a single administration, all the officials of the European Union are subject to a single body of Staff Regulations, such a principle does not mean that the institutions are required to make identical use of the discretion afforded to them by the Staff Regulations given that, on the contrary, in the management of their staff, the ‘principle of the autonomy of the institutions’ applies (judgment of 9 June 2021, KZ v Commission, T‑453/20, not published, EU:T:2021:339, paragraph 52). Similar reasoning applies in respect of temporary staff subject to the CEOS.
117Consequently, it must be held that since the CEOS do not lay down any obligation on the part of the administration to carry out a reclassification exercise in respect of temporary staff, the Commission did not infringe the second paragraph of Article 8 and Article 10(3) of the CEOS, by not providing, in the context of its administrative autonomy, for the organisation of a reclassification exercise for temporary staff engaged on the basis of Article 2(b) of the CEOS.
118That finding cannot be called into question by the applicant’s argument that, in paragraphs 60 to 63 of the judgment of 28 April 2021, Correia v EESC (T‑843/19, EU:T:2021:221), the Court states, in essence, that the absence of written rules and the practice of ad hoc decisions without publication represents a lack of transparency which infringes the principle of legal certainty.
119The case-law cited in paragraph 118 above relates to the situation in which an institution provides for the possibility of reclassifying its members of the temporary staff, but does not lay down express criteria for such procedures. However, that is not the case here. Moreover, that argument is not such as to call into question the Commission’s autonomy as regards the decision not to provide for the possibility that temporary staff engaged on the basis of Article 2(b) of the CEOS may be reclassified.
120Furthermore, the applicant submits, with regard to a Sysper 2 screenshot, that the Commission launched, presumably until 2017, separate promotion exercises for officials, contract agents and temporary agents.
121In that regard, it should be noted that the very existence of a practice of such separate promotion exercises for temporary agents is denied by the Commission, which explains that the data presented by the applicant are the result of a technical error in Sysper 2, which was resolved. However, even if such a practice existed, the Commission could properly modify that practice, in accordance with the principle of administrative autonomy, referred to in paragraph 116 above.
122Consequently, the first plea in law must be rejected.
–The second plea, alleging infringement of the principle of non‑discrimination
123By his second plea, the applicant submits, in essence, that, by adopting the reply of 28 October 2020, the Commission infringed the principle of non-discrimination in several respects.
124The present plea is divided into three parts. The first part alleges unequal treatment and discrimination between the participants in the Junior Professionals Programme pilot scheme (‘the JPP’) and members of the temporary staff engaged on the basis of Article 2(b) of the CEOS within the Commission, the second part unequal treatment between temporary staff engaged on the basis of Article 2(b) of the CEOS and other temporary staff of the Commission, and the third part unequal treatment between temporary staff engaged on the basis of Article 2(b) of the CEOS of various EU institutions, bodies, offices or agencies.
125The Commission disputes that line of argument.
126First of all, it should be borne in mind that the principle of equal treatment is a general principle of EU law, enshrined in Article 20 of the Charter, of which the principle of non-discrimination provided for in Article 21(1) of the Charter is a particular expression. That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 27 November 2018, Hebberecht v EEAS, T‑315/17, EU:T:2018:842, paragraphs 58 and 59 and the case-law cited).
127As regards the requirement that situations must be comparable, that requirement must be assessed with regard to all the elements which characterise them. Those elements must, in particular, be determined and assessed in the light of the subject matter and purpose of the EU act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (see judgment of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 67 and the case-law cited).
128By the first part of the present plea, the applicant argues that the Commission’s practices constitute discrimination against him compared with the participants in the JPP who, like him, are temporary staff engaged on the basis of Article 2(b) of the CEOS. To the extent that the participants in the JPP are temporary agents who could be allowed to be reassigned to other posts around the Commission, which differ significantly in the nature of the tasks, without the need of a new contract, those candidates are treated in a more favourable way as compared to other temporary agents engaged on the basis of Article 2(b) of the CEOS, in respect of whom the administration takes the view that a new contract is necessary and therefore prohibited.
129First of all, as the Commission explained in the decision rejecting complaint R/507/20, if a member of the temporary staff recruited on the basis of Article 2(b) of the CEOS belonging to the AST function group were to be selected to participate in the JPP, he or she would be offered a contract as a member of the temporary staff on the basis of Article 2(a) of the CEOS, not a contract as a member of the temporary staff on the basis of Article 2(b) of the CEOS.
130Next, as regards the applicant’s claim that he is discriminated against because the routine reassignments of the JPP participants do not require the conclusion of new contracts, it is sufficient to recall that the applicant has already been reassigned, as noted in paragraph 3 above, by means of a supplementary agreement to his contract, and therefore without a new contract having been concluded. He is, therefore, not justified in maintaining that it was impossible for him to benefit from a reassignment without that necessarily entailing the conclusion of a new contract.
131Lastly, as regards the claim that the applicant is the victim of discrimination on grounds of age in so far as the candidates for the JPP are exclusively young professionals with a maximum of three years’ professional experience, that claim must be rejected, in view of the fact that, as is apparent from paragraphs 129 and 130 above, no difference in treatment between the participants in the JPP and the other temporary staff members recruited on the basis of Article 2(b) of the CEOS has been established as regards a reassignment without the need to conclude a new contract.
132Consequently, the applicant is not justified in maintaining that temporary staff engaged on the basis of Article 2(b) of the CEOS and recruited under the JPP enjoy more favourable treatment than that applied to him, by being able to be reassigned without concluding new contracts as members of the temporary staff on the basis of Article 2(b) of the CEOS.
133By the second part of the present plea, the applicant submits that the fact that the administration does not organise promotion exercises or allow individual promotions of temporary staff engaged on the basis of Article 2(b) of the CEOS results in unequal treatment between himself as a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS and other categories of temporary staff, in particular temporary staff engaged on the basis of Article 2(a) of the CEOS and Article 2(c) of the CEOS.
134The applicant submits that temporary staff engaged on the basis of Article 2(c) of the CEOS directly assist a person holding an office, while temporary agents engaged on the basis of Article 2(b) of the CEOS have no such targeted mission. However, Article 2 of the CEOS makes no significant difference between the nature of tasks and that distinction is rather irrelevant for equal treatment.
135On that point, the applicant submits that the Commission attempts to justify the unequal treatment by explaining that temporary agents who are engaged for an indefinite duration represent a very small number of staff. Furthermore, the applicant claims that the meaningful distinction between temporary staff engaged on the basis of Article 2(a) of the CEOS and those engaged on the basis of Article 2(b) of the CEOS is classification of the post for budgetary purposes. Those criteria are, however, irrelevant for the purposes of an analysis of unequal treatment.
136As recalled in paragraph 126 above, the principle of equal treatment and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.
137As regards the question of comparing the situations of the different types of temporary staff, first, it should be recalled that, as regards temporary staff engaged on the basis of Article 2(a) of the CEOS, their posts are included in the list of posts, and correspond to permanent tasks defined as public service, which do not, however, by virtue of the choice made by the budgetary authority, correspond to a ‘permanent post’ (judgment of 27 November 2012, Sipos v OHIM, F‑59/11, EU:F:2012:164, paragraph 39).
138Secondly, as regards temporary staff engaged on the basis of Article 2(c) of the CEOS, the latter concluded an employment contract intuitu personae, the essential part of which is mutual trust (see, to that effect, judgment of 17 October 2006, Bonnet v Court of Justice, T‑406/04, EU:T:2006:322, paragraphs 47 and 101).
139Thirdly, as regards temporary staff engaged on the basis of Article 2(b) of the CEOS, although the CEOS expressly provide that such temporary staff may be engaged to fill a permanent post, they also stipulate that that may occur only temporarily (see, to that effect, judgment of 21 September 2011, Adjemian and Others v Commission, T‑325/09 P, EU:T:2011:506, paragraph 79).
140In that regard, the Commission rightly contends that the legislature has created different categories of temporary agent, having different working conditions, which places them in situations that are not comparable, with the result that it is not possible to establish a difference in treatment between temporary agents which would constitute discrimination within the meaning of Article 21(1) of the Charter.
141Nonetheless, the applicant submits that that practice is contrary to Clause 4(1) of the framework agreement, which prohibits treatment of fixed-term workers in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relationship unless different treatment is justified on objective grounds.
142However, the Commission was right to conclude that temporary agents engaged on the basis of Article 2(b) of the CEOS were not in a situation comparable to that of the other categories of temporary agent. The fundamental difference between the various categories of temporary agent lies in the ‘type of post’ which each of the categories of temporary agent concerned occupy, and not directly in the duration of the contract. Indeed, those three categories of temporary agent are intended to meet different needs of the institutions, bodies, offices or agencies. Therefore, the duration of the contracts which the various categories of temporary agent may conclude stems directly from the different types of post which they may occupy and thus from their different nature.
143By the third part of the present plea, the applicant submits that other EU institutions and bodies have expressly recognised the possibility for temporary staff engaged on the basis of Article 2(b) of the CEOS to benefit from reclassification.
144The Commission contests the admissibility of the third part of the present plea on the ground that it is put forward for the first time in the application.
145In that regard, it should be recalled that the rule requiring consistency between the complaint and the subsequent application requires, on pain of inadmissibility, that a plea raised before the Courts of the European Union has already been raised in the context of the pre-litigation procedure, thus enabling the AACC to know the criticisms made by the person concerned of the contested decision (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 71 and the case-law cited).
146In the present case, in the request of 29 June 2020, the applicant referred to the practice of the other EU institutions in support of his arguments regarding his right to be reclassified. In addition, in the complaint he also alleges the failure to follow established administrative practices. Furthermore, it should be noted that the complaint contains arguments relating to the alleged discrimination, in particular on grounds of age in respect of the various temporary staff engaged on the basis of Article 2(b) of the CEOS, and to the unequal treatment between temporary agents engaged on the basis of Article 2(b) of the CEOS and other categories of temporary agent. In his application, the applicant raises, in addition to those contentions, the third part of the present plea, alleging discrimination based on different practices existing in other institutions, in the broader context of the plea alleging an infringement of the principle of non-discrimination.
147In those circumstances, it must be held that the fact that the applicant has, for the first time, expressly referred in his application to a difference in treatment between temporary staff engaged on the basis of Article 2(b) of the CEOS within the Commission and within other institutions, bodies, offices and agencies does not alter either the legal basis or the subject matter of the complaint.
148Consequently, the Commission’s claims concerning the admissibility of the third part of the present plea must be rejected.
149The applicant submits that, by failing to organise promotion exercises and by not providing for the same right to promotion to temporary agents engaged on the basis of Article 2(b) of the CEOS, the Commission treats such temporary agents in a less favourable manner than other institutions and bodies such as the European External Action Service (EEAS) or the European Union Agency for Criminal Justice Cooperation (Eurojust). In addition, while the different institutions and agencies of the European Union enjoy some degree of administrative autonomy in the manner in which to organise reclassification exercises, they cannot interpret the provisions of the CEOS differently so as to provide fewer rights to temporary agents.
150In that regard, it must be stated that the applicant cannot validly rely on the internal rules applicable to the staff of other institutions. It is settled case-law that the institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to assign the staff available to them in the light of such tasks (see judgment of 14 October 2004, Pflugradt v ECB, C‑409/02 P, EU:C:2004:625, paragraph 42 and the case-law cited).
151Consequently, as stated in paragraph 117 above, the Commission was entitled to decide, in the context of its administrative autonomy, not to organise a reclassification exercise for temporary staff engaged on the basis of Article 2(b) of the CEOS. Such a decision is not in any way contrary to the principle of non-discrimination, especially since it applies to the same categories of temporary agent within the same institution.
152It follows from all of the foregoing that the second plea in law must be rejected and, therefore, the claim for annulment of the reply of 28 October 2020 must be dismissed in its entirety.
The claim for compensation
153The applicant seeks an award of damages by way of compensation for the material damage which he considers to have sustained as a result of the alleged unlawfulness of the decision rejecting the application and of the reply of 28 October 2020. The applicant’s claim for compensation is divided, in essence, into two parts. In the first part of that claim, relating to the decision rejecting the application, the applicant submits that that decision caused him material damage consisting in the loss of an opportunity, first, to be recruited to the post at issue and, secondly, to become an established official by taking part in the internal competitions restricted to members of the temporary staff belonging to the AD function group. In the second part of that claim, relating to the reply of 28 October 2020, the applicant submits that that reply caused him material damage consisting in the loss of an opportunity to benefit from reclassification to grade AST 4 as from 16 May 2020.
154The Commission disputes the applicant’s arguments.
The material damage linked to the decision rejecting the application
155As a result of the decision rejecting the application, the applicant claims to have lost an opportunity to be recruited to the post at issue. He states in that regard that, since the selection committee had made a request on 24 July 2020 for his recruitment and appointment to the post at issue, the loss of opportunity to be recruited as a result of the decision rejecting the application must be assessed at 100%. On that basis, he seeks compensation in the amount of EUR 24245, which corresponds to the difference between his current salary and the salary to which he would have been entitled if he had been recruited to the post at issue, at grade AD 5, from 1 September 2020 until the expiry of his contract.
156In addition, the applicant claims to have lost an opportunity to become an established official by taking part in the internal competitions restricted to members of the temporary staff belonging to the AD function group. Had he been recruited to the post at issue and therefore reclassified in grade AD 5 as from 1 September 2020, the applicant maintains that he would have been able to take part in those internal competitions organised in 2021 and 2022. In the context of the competition held at the time when the present action was brought, the applicant maintains that, for 20 posts for officials within the law profile, approximately 90 candidates passed the computer-based tests, which makes it possible to assess that he had a 44% chance of becoming an official. In respect of the loss of opportunity to become an official, the applicant seeks compensation in the amount of EUR 600000, which corresponds to a loss of remuneration, including the amount of the salary and benefits related to dependants, which would have been paid to him each month for 20 years, to which a chance coefficient of 0.44 should be applied.
157As a preliminary point, it should be borne in mind that the European Union can be held liable for damages only if a number of conditions are satisfied: the unlawfulness of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered (judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 52). Since those conditions must be satisfied cumulatively, the fact that one of them has not been satisfied is a sufficient basis on which to dismiss an action for damages (judgment of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraph 14).
158As regards the two heads of damage referred to in paragraphs 155 and 156 above, it must be noted that they originate in the decision rejecting the application.
159It must be found that, as regards the claim for annulment of the decision rejecting the application, since the second plea directed at that decision has been upheld, the first condition for the Commission to incur liability, namely the unlawfulness of the allegedly wrongful act, is satisfied.
160It is, therefore, necessary to examine the other two conditions for the Commission to incur liability, namely the actual harm suffered and the causal link.
161As regards the actual material damage suffered, it is settled case-law that it must be actual and certain (see, to that effect, judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 54). In particular, where the damage alleged consists, as in the present case, in a loss of opportunity, first, the opportunity lost must have been real and, secondly, such loss must be definitive (see judgment of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 110 and the case-law cited).
162As regards the degree of certainty of the causal link, this is attained where the unlawful act committed by an EU institution has definitely deprived a person, not necessarily of recruitment, which the person concerned could never prove would have taken place, but of a genuine opportunity of being recruited as an official or other member of staff, resulting in material damage for the person concerned in the form of loss of income (see judgment of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 111 and the case-law cited).
163First, it is appropriate to examine the condition relating to whether the loss of opportunity alleged is real.
164According to the case-law, in order to assess whether the loss of opportunity is real, it is necessary to refer to the date on which the decision rejecting the application was taken (see, to that effect, judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 85 and the case-law cited).
165In the present case, it is apparent from the documents before the Court that, in the absence of the unlawfulness vitiating the decision rejecting the application, the applicant could have been recruited to the post at issue.
166First of all, as the applicant states, he had been fully performing the post that he held at the time of submitting his application, which was similar to the post at issue. Indeed, it is apparent from the applicant’s appraisal reports for 2019 and 2020 that he had performed his duties in a very satisfactory manner, his level of performance having been considered exceptional, with the result that, at the end of the initial period of three years for which he had been engaged, he was renewed in his duties. It is common ground that possession of proven professional experience is an important factor to be taken into account in order to decide on the choice of the candidate to be recruited (see judgment of 13 September 2011, AA v Commission, F‑101/09, EU:F:2011:133, paragraph 91 and the case-law cited).
167In addition, it should be noted that the applicant’s head of unit had, on 24 July 2020, issued a note stating that, since it had not been possible for the post at issue to be filled by an appropriate internal or external candidate, including from among the successful candidates in an open competition organised by the European Personnel Selection Office (EPSO), and on the basis of the applicant’s merits, he was requesting that the applicant be recruited to the post at issue.
168Those considerations constitute a series of sufficiently precise and plausible pieces of evidence to show that in 2020 the applicant had, in the context of the selection procedure for the post at issue, a genuine opportunity of being recruited to that post, notwithstanding the broad discretion of the administration with respect to recruitment (see, to that effect, judgment of 14 December 2022, TM v ECB, T‑440/21, not published, EU:T:2022:800, paragraph 113).
169Secondly, as regards the definitive nature of the alleged loss of opportunity, it must be borne in mind that this is assessed at the time when the Courts of the European Union rule, taking into account all the circumstances of the case, including factors subsequent to the adoption of the unlawful act giving rise to the damage (see judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 90 and the case-law cited).
170In order to assess that definitive nature, it is necessary to examine whether, on the date of delivery of the present judgment and in the light of the measures for implementation thereof, which it is for the Commission to adopt, the applicant definitively lost the opportunity he had to be recruited to the post at issue (see, to that effect, judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 91).
171In the present case, it should be recalled that, on 18 January 2021, the applicant’s initial contract, concluded on 16 May 2018 for a period of three years, was renewed for a period of two years, expiring on 15 May 2023. Since, in accordance with the second paragraph of Article 8 of the CEOS, on the expiry of his or her contract, a staff member engaged on the basis of Article 2(b) of the CEOS may be assigned to an established post in an institution only if he or she is appointed as an official in accordance with the Staff Regulations, it must be held that, on the date of delivery of the present judgment, the applicant can no longer be engaged for the posts in question on the basis of Article 2(b) of the CEOS.
172Furthermore, in disputes relating to decisions rejecting applications, such as the dispute which is the subject of the present action, the Court has held that the definitive nature of the loss of an opportunity to be recruited stemmed from the protection of the rights of third parties whose applications had been accepted for the posts in question (see, to that effect, judgments of 6 June 2006, Girardot v Commission, T‑10/02, EU:T:2006:148, paragraph 49, and of 24 October 2018, Fernández González v Commission, T‑162/17 RENV, not published, EU:T:2018:711, paragraph 91), and not from the fact that it is impossible for the administration legally to correct the unlawfulness committed (judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 95).
173Thus, in the light of the foregoing, the applicant is justified in maintaining that he has definitively lost the opportunity of being recruited to the post at issue.
174Consequently, on the basis of those factors, it must be held that the unlawfulness committed by the Commission deprived the applicant of a genuine opportunity of being recruited to the post at issue, with the result that there is a causal link between the unlawfulness of the decision rejecting the application and the alleged loss of opportunity.
175The second and third conditions for the Commission to incur liability are thus satisfied.
176According to the case-law, in order to determine the amount of compensation to be paid for the loss of such an opportunity, it is necessary, once the nature of the opportunity of which the official or member of staff has been deprived has been identified, to determine the date as from which he or she would have been given that opportunity and then quantify that opportunity and, lastly, establish the financial consequences for the official or member of staff arising from that loss of opportunity (see judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 102 and the case-law cited).
177As regards the method and extent of reparation for the loss of opportunity, where possible the opportunity of which an official or a member of the temporary staff has been deprived must be calculated objectively, in the form of a mathematical coefficient resulting from an accurate analysis (see judgment of 14 December 2022, SU v EIOPA, T‑296/21, EU:T:2022:808, paragraph 103 and the case-law cited), whilst bearing in mind that it is very difficult, if not impossible, to define a method to quantify precisely the opportunity of being recruited to a post within an institution and, consequently, to assess the damage resulting from the loss of that opportunity (see, to that effect, judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraphs 59 and 60).
178Moreover, it has been held that the criterion of loss of earnings cannot by itself determine the extent of the reparation for the damage caused following the loss of an opportunity to be recruited. In such a situation, the damage suffered cannot be equated with the earnings which would have been received if the opportunity had materialised, since, when account is taken of the discretion which the Commission has in this area, the party cannot claim any right to be recruited. Consequently, the damage for which such a person is entitled to obtain compensation cannot correspond to the loss of earnings resulting from the loss of a right (see, to that effect, judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 65).
179In the present case, the applicant provided a quantified assessment of the amount to be used as a basis for calculating the amount of compensation linked to the loss of opportunity. That assessment cannot, however, be accepted. Indeed, it is not possible to quantify that opportunity and establish the financial consequences of the loss of opportunity, because a correct calculation of the applicant’s material damage would be contingent upon a number of hypothetical factors, including the impact of the interest of the service on the likelihood of the applicant’s engagement and on the total duration of that engagement, given that the maximum total duration of the employment relationship of a member of the temporary staff engaged on the basis of Article 2(b) of the CEOS is six years, and, in the present case, the applicant’s initial contract, concluded for a period of three years, had been ongoing since 16 May 2018.
180Consequently, it is appropriate to assess, in the light of all the circumstances of the case, the damage suffered ex æquo et bono (see, to that effect, judgment of 16 December 2020, VP v Cedefop, T‑187/18, not published, EU:T:2020:613, paragraph 200 and the case-law cited).
181In that context, a fair assessment will be made of all the material damage suffered by the applicant as a result of his loss of opportunity to be recruited to the post at issue by ordering the Commission to pay him, ex aequo et bono, the lump sum of EUR 10000.
182As regards the head of damage consisting in the loss of the opportunity to become an official by taking part in the internal competitions organised by the Commission in 2021 and 2022, which were restricted to members of the temporary staff in the AD function group, it should be noted that the condition relating to proof of the existence of actual and certain damage, and to a causal link, in relation to the loss of the opportunity to succeed in those internal competitions organised by the Commission in 2021 and 2022 and, subsequently, to be recruited as an EU official, is not satisfied. The decision rejecting the application does not have the effect of preventing the applicant from becoming an administrator within the Commission. The decision rejecting the application did not preclude the applicant from submitting his application for other posts in the AD function group that were vacant at the Commission subsequent to the adoption of that decision, just as it does not preclude him from being recruited, in the future, to a post at AD level, for example, on the basis of Article 2(a) of the CEOS.
183Accordingly, the claim for compensation for material damage resulting from the alleged loss of opportunity to become an official by taking part in the internal competitions organised by the Commission in 2021 and 2022 and which were restricted to members of the temporary staff in the AD function group must be dismissed.
The material damage linked to the reply of 28 October 2020
184The applicant claims that he lost an opportunity to benefit from a promotion to grade AST 4 as from 16 May 2020. Since that opportunity to be promoted must be evaluated at 100%, given his outstanding level of performance, the amount of the compensation claimed is EUR 13152.
185According to settled case-law, claims for compensation for material or non-material damage must be dismissed where they are closely associated with claims for annulment which have themselves been dismissed as inadmissible or unfounded (see judgment of 12 January 2022, MW v Parliament, T‑630/20, not published, EU:T:2022:3, paragraph 137 and the case-law cited).
186In the present case, the head of damage alleging the loss of opportunity to benefit from a promotion to grade AST 4 as from 16 May 2020 and the claim for annulment of the reply of 28 October 2020 are closely associated.
187In those circumstances, since the examination of the pleas put forward in support of the claim for annulment of the reply of 28 October 2020 did not reveal any unlawfulness committed by the Commission, the head of damage alleging the loss of opportunity to benefit from a promotion to grade AST 4 as from 16 May 2020 must also be rejected.
188It follows that the claim for compensation for the material damage concerning the alleged loss of opportunity to benefit from a promotion to grade AST 4 as from 16 May 2020 must be dismissed.
Costs
189Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his or her own costs, pay a proportion of the costs of the other party. Under Article 135(1) of those rules, the Court may, if equity so requires, decide that an unsuccessful party is to pay only a proportion of the costs, or even that he or she is not to be ordered to pay any.
190In the present case, the Commission has been largely unsuccessful with respect to the applicant’s claims. Furthermore, the Commission lodged an objection of inadmissibility with regard to the claim against the decision rejecting the application, which it subsequently withdrew, which has had an effect on costs. In those circumstances, it is a fair assessment of the circumstances of the case to order the Commission to pay the costs in their entirety.
Operative part
On those grounds,THE GENERAL COURT (Fourth Chamber, Extended Composition)hereby:
1.Annuls the decision of the European Commission of 4 August 2020 rejecting the application of SE for the vacant post published under reference COM/2020/1474;
2.Orders the Commission to pay SE the sum of EUR 10000 as compensation for the material damage suffered;
3.Dismisses the action as to the remainder;
4.Orders the Commission to pay the costs.
Delivered in open court in Luxembourg on 5 July 2023.
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