Natalia Martínez Páramo and Others v Commission of the European Communities

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1 JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber) 11 July 2002 Joined Cases T-137/99 and T-18/00 Natalia Martínez Páramo and Others v Commission of the European Communities (Temporary staff contract - Admissibility - Act adversely affecting an official - Compliance with time-limits set by Staff Regulations - Second renewal of a temporary staff contract - Articles 2(a) and (b), 3(a), 8, 9, 10(1), 12, 13, 14 and 15 of the Conditions of Employment of Other Servants - Termination of a fixed-term contract - Notice provided for in Articles 47(2) and 74 of the Conditions of Employment of Other Servants) Full text in French II Application for: first, annulment of the decisions of the Commission of 23 March, 18 May and 31 May 1999 confirming the termination of the applicants' contracts of engagement on 30 June 1999 and the expiry date for each of those contracts and, secondly, annulment of the legal characterisation of the applicants' contracts. Held: The application in Case T-137/99 is declared admissible in so far as it was made by Mr Marenne. The application in Case T-137/99 is inadmissible in so far as it was made by the other applicants. The application in Case T-137/99 is dismissed. The application in Case T-18/00 is inadmissible. The parties shall bear their own costs, including those incurred in the proceedings for interim relief. I-A- 119

2 SUMMARY - JOINED CASES T-137/99 AND T-18/00 Summary 1. Officials - Actions - Act adversely affecting an official Definition - Contract of employment of a member of the temporary staff - Initial contract where extended unaltered (Staff Regulations, Arts 90(2) and 91(1)) 2. Officials - Actions - Prior administrative complaint - Time-limits - Matter of public policy - Point from which time starts to run - Date of signature of the temporary staff contract (Staff Regulations, Arts 90(2) and 91) 3. Officials - Organisation of departments - Posting of staff - Administration's discretion - Limits - Interests of the service - Observance of the principle of equivalence of posts (Conditions of Employment of Other Servants, Art. 2) 4. Officials - Distinction between 'post' and 'job' - Permanent post - Concept 5. Officials - Members of the temporary staff - Engagement - Conclusion of a contract to fill temporarily a permanent post Condition (Conditions of Employment of Other Servants, Art. 2) 1. The administrative complaint and the legal action which follows it must both be directed against an 'act adversely affecting' the applicant within the meaning of Articles 90(2) and 91(1) of the Staff Regulations, the act in question being that which directly and immediately affects his or her legal situation. Where the nature of a temporary staff contract was expressly agreed upon in the initial contract of employment, in the absence of any alteration of that characterisation, in particular I-A - 120

3 MARTINEZ PARAMO AND OTHERS v COMMISSION when that contract was extended, the initial contract of employment must be regarded as the act adversely affecting the applicant. (see paras 45, 46) See: 204/85 Stroghili v Court of Auditors [19871 ECR 389. para. 6; 302/85 Pressler-Hoeft v Court of Auditors [1987] ECR 513; 329/85 Castagnoli v Commission [1987] ECR 3281: 289/87 Giubilini v Commission [1988] ECR 1735; 95/87 Contini v Commission [1988] ECR 2537; T-14/91 Weyrich v Commission [1991] ECR II-235. para. 35: T-173/95 Biedermann and Others v Court of Auditors [1998] ECR-SC I-A-273 and II-831. para The time-limits prescribed in Articles 90 and 91 of the Staff Regulations for lodging complaints and bringing proceedings are intended to ensure the clarity and certainty of legal situations and are a matter of public policy, so that they cannot be left to the discretion of the parties or the Court. For an action for annulment to be admissible, the complaint must have been lodged within the period of three months following the act adversely affecting the applicant, laid down by Article 90(2) of the Staff Regulations. With regard to the determination of the point in time at which the act adversely affecting the applicant arose, that is to say, the fixing of the date from which the time-limit must be calculated, the contract produces its effects and, therefore, is capable of adversely affecting the member of the temporary staff, from the date of its signature, provided that all the details of the contract are fixed, including its effective date and date of expiry. The period for lodging a complaint in due time in accordance with Article 90(2) of the Staff Regulations must therefore be calculated from the date of signature. (see paras 54-56) See: Castagnoli v Commission. cited above, para. 10; T-122/89 F. v Commission [1990] ECR II-517. para. 23 I-A- 121

4 SUMMARY - JOINED CASES T-137/99 AND T-18/00 3. Article 2 of the Conditions of Employment of Other Servants does not refer to the duties or tasks which the institution must or may assign either to staff engaged under Article 2(a) or to staff engaged under Article 2(b). In that regard, it must be borne in mind that the Community institutions have a broad discretion to organise their departments to suit the tasks entrusted to them and to post the staff available to them in the light of such tasks, on condition, however, that the staff are posted in the interests of the service and in conformity with the principle of equivalence of posts. Such discretion is indispensable in order to achieve effective organisation of work and to adapt that organisation to varying needs. (see paras 93-95) See: 124/78 List v Commission [1979] ECR 2499; 60/80 Kindermann v Commission [1981] ECR 1329; 176/82 Nebe v Commission [1983] ECR 2475; 69/83 Lux v Court of Auditors [1984] ECR 2447; 19/87 Hecq v Commission [1988] ECR 1681; T-108/89 Scheuer v Commission [1990] ECR II-411, para The question of the existence of a given 'job', as opposed to a 'post', falls within the competence of the institution with respect to its departmental organisation, whereas the question as to the existence of a vacant post depends upon whether there is, amongst the total number of permanent posts set out in the budget, a post that is not filled. The concept of a permanent post covers only the posts expressly prescribed as 'permanent', or described in a similar manner, in the budget of the Community. That concept is therefore a budgetary concept and not an operational concept relating to the nature of the duties performed in that post. (see para. 96) I-A - 122

5 MARTÍNEZ PÁRAMO AND OTHERS v COMMISSION See: 18/63 Schmitz v EEC [1964] ECR 85; C-398/93 P Rasmussen v Commission [1994] ECR I-4043, para It is clear from Article 2 of the Conditions of Employment of Other Servants that a contract to fill temporarily a permanent post such as those provided for in Article 2(b) of the Conditions of Employment of Other Servants may not be concluded if the institution does not have available a vacant permanent post provided for beforehand by the budget. (see para. 97) I-A - 123

ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber) 7 June 1991 *

ORDER OF 7. 6. 1991 CASE T-14/91 ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber) 7 June 1991 * In Case T-14/91, Georges Weyrich, former official of the Commission of the European Communities, residing