SB v EUIPO (Civil service - Temporary staff - Judgment) [2018] EUECJ T-200/17 (03 May 2018)

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(Civil service — Temporary staff — Fixed-term contract — Decision not to renew — Plea of illegality — Duty to state reasons — Duty to have regard for the welfare of staff — Discrimination on grounds of age)

SB, a former member of the temporary staff of the European Union Intellectual Property Office, represented by S. Pappas, lawyer,

European Union Intellectual Property Office (EUIPO), represented by K. Tóth and A. Lukošiūtė, acting as Agents,

APPLICATION under Article 270 TFEU for annulment of the decision of the Executive Director of EUIPO dated 2 June 2016 refusing a second renewal of the applicant’s contract and that director’s decision dated 19 December 2016 rejecting the complaint brought by the applicant,

composed of G. Berardis, President, S. Papasavvas (Rapporteur) and O. Spineanu-Matei, Judges,

1 On 16 July 2008, the applicant, SB, was recruited by the European Union Intellectual Property Office (EUIPO) as a member of the temporary staff for a three-year period, ending on 15 July 2011.

2 On 16 July 2011, the applicant’s contract was renewed for a five-year period, ending on 15 July 2016.

3 On 15 October 2015, the applicant, in a letter addressed to the President of EUIPO, expressed her interest, pursuant to Article 90(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), in being granted a second renewal for an indefinite period of her temporary staff contract.

4 On 10 February 2016, the applicant received a communication from the President of EUIPO regarding the launch of a new procedure determining the conditions under which temporary staff contracts concluded under Article 2(f) of the Conditions of Employment of Other Servants (‘the CEOS’) could be renewed a second time for an indefinite period.

5 On 7 March 2016, the applicant was requested to supplement her letter of interest by the addition of other information to be taken into consideration by the authority empowered to conclude contracts of employment (‘the AECE’) in connection with the second renewal of her contract in accordance with the new Guidelines for the renewal of temporary agent contracts at [EUIPO] (‘the new Guidelines’) and on the basis of the Framework for the workforce management in [EUIPO] (‘the Management Framework’).

6 On 17 March 2016, the applicant again expressed her interest in the renewal of her contract.

7 On 2 May 2016, the AECE informed the applicant that, as a result of a preliminary analysis, a second renewal of her contract was not envisaged and invited her to submit her comments on the envisaged decision within 10 working days.

8 The applicant submitted her comments on the envisaged decision on 13 May 2016.

9 On 3 June 2016, the applicant was notified of the decision of 2 June 2016 refusing the renewal of her temporary staff contract for an indefinite period (‘the original decision’).

10 On 1 September 2016, the applicant filed a complaint against the original decision in accordance with Article 90(2) of the Staff Regulations (‘the complaint’).

11 By decision of 19 December 2016, EUIPO rejected the applicant’s complaint (‘the decision rejecting the complaint’).

12 The applicant brought the present action by application lodged at the Registry of the General Court on 29 March 2017.

13 The General Court (Sixth Chamber) decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule without an oral part of the procedure.

– annul the original decision and the decision rejecting the complaint (together ‘the contested decisions’).

17 It must be recalled in this connection that the administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. Accordingly, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the court the act adversely affecting the applicant against which the complaint was lodged, except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged. 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 particulars 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 judgment of 21 May 2014, Mocová v Commission, T‑347/12 P, EU:T:2014:268, paragraph 34 and the case-law cited).

18 In the present case, the applicant in the complaint claimed infringement of the duty to have regard for the welfare of staff and submitted therein new information in relation to her personal and family situation. In this regard she referred to her age, the two years left to run until she acquired pension rights and her two sons, both of whom are students, the younger of whom suffers from a serious illness and whose studies in the United Kingdom are financed exclusively by the applicant. In the decision rejecting the complaint, EUIPO observed that the application seeking that the applicant’s personal interest in renewal be taken into account was new and in the statement of defence it stated that its services had been aware only of the information relating to the age of the applicant and that of her sons.

19 In the decision rejecting the complaint, EUIPO pointed out, after criticising the applicant for the late submission of information relating to her personal and family situation, that in any event it was settled case-law that taking into consideration the personal interests of the staff member concerned did not extend so far as to prevent the AECE from deciding not to renew a fixed-term contract despite the opposition of that staff member if it was not in the interests of the service to proceed with the renewal. EUIPO added that regard had to be had to the particular context in which European Union agencies operated generally and, in particular, to the fact that they had a limited number of staff available and were subject to specific operational constraints. EUIPO thereby adopted a position on the new information put forward by the applicant and in this respect the decision rejecting the complaint adds to the original decision within the meaning of the case-law quoted in paragraph 17 above.

20 It must accordingly be concluded that the effect of the present action is to bring before the General Court an application for annulment of the original decision as added to by the decision rejecting the complaint.

21 In support of her action, the applicant puts forward four pleas in law, alleging (i) the illegality of the Management Framework and the new Guidelines, (ii) a lack of a statement of reasons or an illegal, contradictory and inadequate statement of reasons, (iii) breach of the duty to have regard for the welfare of staff and (iv) discrimination on grounds of age.

The first plea, alleging illegality of the Management Framework and the new Guidelines

22 The applicant raises a plea of illegality of the Management Framework and the new Guidelines.

23 EUIPO submits in response that the plea of illegality raised by the applicant is inadmissible in part and, in the alternative, that it must be dismissed as unfounded.

24 EUIPO contends that the plea of illegality raised by the applicant was not, in so far as it concerns the alleged assimilation of temporary staff with indefinite contracts to officials, put forward at the administrative complaint stage. It therefore argues that such a plea is inadmissible.

25 The applicant claims in reply that in the complaint she raised the issue of the distinction between temporary staff with fixed-term contracts and temporary staff with indefinite contracts in the light of the internal rules of EUIPO, which provide that the former bring flexibility in the functioning of EUIPO whereas the latter contribute to stability of the workforce. She adds that she therefore argued that the internal rules of EUIPO infringed the principle of equal treatment.

26 Case-law provides that the scheme of the plea of illegality, which is an incidental legal remedy, linked to the introduction of an independent action before the court, warrants a plea of illegality being declared admissible where it is raised for the first time before the EU judicature, by derogation from the rule of correspondence between the application and the complaint (judgment of 27 October 2016, ECB v Cerafogli, T‑787/14 P, EU:T:2016:633, paragraph 47).

27 Accordingly, without it even being necessary to rule as to whether the plea of illegality was raised at the complaint stage, EUIPO’s plea of inadmissibility must be rejected.

28 In support of the plea of illegality, the applicant claims, first, that by assimilating temporary staff with indefinite contracts to officials the Management Framework, specifically point 3.2 thereof, is contrary to the Staff Regulations. Secondly, she claims that that framework and the new Guidelines infringe the principle of equal treatment in so far as they differentiate between temporary staff, by providing for two separate procedures according to whether their contract is being renewed for the first or second time, on the ground that the second renewal may give rise to an indefinite contract. She thus concludes that EUIPO in doing so creates an artificial distinction based on the future consequences of the second renewal of a fixed-term contract.

29 As regards, in the first place, the alleged assimilation of temporary staff with indefinite contracts to officials, it is apparent from point 3.2 of the Management Framework, which describes the situation at EUIPO on 16 November 2015, that at that date EUIPO had 783 staff members of whom 514 were officials or temporary or contract staff on an indefinite contract. It was added in that point that those permanent staff members thus represented about 66% of the workforce.

30 Accordingly, point 3.2 of the Management Framework does not assimilate temporary staff with indefinite contracts to officials but regards both the former and the latter as falling within the category of permanent staff.

31 Furthermore, it must be stated that point 3.2, which merely describes a situation at a given moment, is a straightforward factual statement and does not constitute the basis of the contested decisions. In any event, as EUIPO observes, the applicant does not state how the alleged assimilation of temporary staff with indefinite contracts to officials is supposed to have had any effect on the legality of the contested decisions, which refused a second renewal of her fixed-term contract on the ground that it was not in the interests of the service that she be awarded an indefinite contract. The present claim must therefore be dismissed.

32 As regards, in the second place, the alleged infringement of the principle of equal treatment by the new Guidelines and the Management Framework, in so far as those documents differentiate between temporary staff by providing for two separate procedures according to whether the staff are awaiting a first or second contract renewal, it is settled case-law that the principle of equal treatment requires, in particular, that similar situations are not to be treated differently unless differentiation is objectively justified (see judgment of 26 February 2003, Drouvis v Commission T‑184/00, EU:T:2003:39, paragraph 39 and the case-law cited).

33 That principle requires that staff in identical situations are to be governed by the same rules, but it does not prohibit the EU legislature from taking into account objective differences in the conditions or situations in which those concerned are placed (see judgment of 26 February 2003, Drouvis v Commission, T‑184/00, EU:T:2003:39, paragraph 39 and the case-law cited).

34 Furthermore, in the case of matters falling within the exercise of a discretion, the principle of equal treatment is infringed only where the institution concerned treats a person differently in a manner which is arbitrary or manifestly inappropriate having regard to the objective of the rules at issue (see judgments of 26 February 2003, Drouvis v Commission, T‑184/00, EU:T:2003:39, paragraph 41 and the case-law cited, and of 29 November 2006, Campoli v Commission, T‑135/05, EU:T:2006:366, paragraph 97 and the case-law cited).

35 It must be observed in this connection that under the new Guidelines the first renewal of a temporary staff contract is conducted by means of a simplified procedure. By contrast, the Management Framework and those guidelines provide that EUIPO will contact the temporary staff members whose second contract will expire during the next calendar year in the second quarter in order to ask them whether they are interested in the renewal of their contract for an indefinite period. Such expressions of interest are to be analysed in the light of the interests of the service and the duty to have regard for the welfare of staff, the stated objective of that procedure being to identify staff interested in a renewal of their contract for an indefinite period in order to deal with them particularly attentively.

36 It must therefore be stated that EUIPO put in place two separate procedures depending on whether the temporary staff contracts were subject to a first or second renewal.

37 Article 8 of the CEOS provides that temporary staff to whom Article 2(f) of the CEOS applies may be engaged for a fixed or indefinite period. It adds that the contracts of such staff who are engaged for a fixed period may be renewed not more than once for a fixed period and that any further renewal will result in the contract being re-designated as a contract for an indefinite period.

38 It follows from the above that staff members whose second contract is about to expire may be granted an indefinite contract whereas staff members whose first contract is about to expire may be granted a new fixed-term contract. Those two types of staff are thus in objectively different situations. As a result, EUIPO was not required to treat them identically. It accordingly cannot be found to have committed any infringement of the principle of equal treatment in this connection.

The second plea, alleging a lack of a statement of reasons or an illegal, contradictory and inadequate statement of reasons

40 The applicant claims that the original decision is vitiated by a lack of a statement of reasons or an illegal, contradictory and inadequate statement of reasons.

41 It is settled case-law, in this connection, that 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 Article 296 TFEU, is intended, on one hand to provide the person concerned with sufficient details to determine whether the measure adversely affecting him is well founded and whether it is appropriate to bring proceedings before the General Court and on the other to enable the General Court to review the legality of the measure (see, to that effect, judgments of 20 March 1991, Pérez-Mínguez Casariego v Commission, T‑1/90, EU:T:1991:17, paragraph 73, and of 6 July 2004, Huygens v Commission, T‑281/01, EU:T:2004:207, paragraph 105).

42 The extent of that obligation to state reasons must be determined on the basis of the specific circumstances of each case, in particular the content of the act, the nature of the grounds put forward and the interest which the addressee may have in receiving explanations (see judgment of 12 December 2002, Morello v Commission, T‑135/00, EU:T:2002:310, paragraph 28 and the case-law cited). In particular, the reasons given for a decision are adequate if it was adopted in circumstances known to the official concerned which enable him to understand the scope of the measure concerning him (see, by analogy, judgment of 1 April 2004, N v Commission, T‑198/02, EU:T:2004:101, paragraph 70 and the case-law cited).

43 In the first place, it must be observed that it is apparent at the outset from the terms of the original decision that the AECE stated to the applicant that it had examined thoroughly the possibility of renewing her contract, in so doing taking into account the interests of the service and assessing her skills, merits and potential and her own interests as a staff member. It also pointed out that the main component of the workforce of EUIPO was constituted by officials and the competitions organised by the European Personnel Selection Office (EPSO) were the standard way of recruiting permanent staff within EUIPO. It then observed that the applicant had taken part in an EPSO competition but had not been placed on a reserve list. The AECE also stressed that EUIPO’s policy consisted in promoting employment stability through permanent positions which could be filled by officials and that the flexibility the institution required was provided by temporary staff. It stated that it was only where there were exceptional facts that justified derogating from the necessary turnover of staff that the AECE decided to renew a temporary staff contract for an indefinite period. It added that the assessment of the applicant’s case and her performance, skills and expertise in intellectual property did not justify her retention within EUIPO in the long term. It confirmed that the matters the applicant had put forward, such as her ability to adapt and her language skills, had been taken into consideration, but did not provide sufficient grounds to find that it was in the interest of the service to renew her contract for a long period. Finally, it encouraged the applicant to participate in the competitions organised by EPSO in the intellectual property field.

44 Secondly, it is apparent from the decision rejecting the complaint that the AECE replied to all the arguments raised by the applicant in the complaint. Thus, it dismissed the applicant’s claims as to the illegality of the Management Framework and the new Guidelines by stating that EUIPO ensured both that temporary staff whose contract was nearing expiry were informed before the expiry date of whether or not their contract would be renewed and that all the staff participating in the procedure for a second contract renewal in 2016 were in the same situation and had been treated in the same way. The AECE added that there were differences between the members of staff according to whether they held a fixed-term contract or indefinite contract. It also stressed that, among the factors to be taken into account in connection with the interest of the service, while performance was admittedly a key criterion, workforce stability and budgetary availability were also important factors. Lastly, it stated that age played no role in the decision of whether or not to renew the contract of a member of the temporary staff and it replied to the applicant’s claim alleging breach of the duty to have regard for the welfare of staff, as described in paragraph 19 above.

45 It follows from the reiteration of the grounds given for the contested decisions that the applicant was, inter alia, informed both of the fact that within EUIPO most of the staff had the status of officials and of the fact that for a member of the temporary staff to be awarded an indefinite contract on the second renewal of that staff member’s fixed-term contract there had to be exceptional facts justifying a derogation from the necessary turnover of staff, which was not the case in the circumstances in question.

46 That statement of reasons, from which the EUIPO’s reasoning is clear and unambiguous, was such as to acquaint the applicant with the grounds for the measures taken and enables the General Court to exercise its power of review.

47 Consequently, the statements of reasons for the contested decisions were adequate.

48 The applicant’s other arguments are not capable of casting doubt on that finding.

49 First, the applicant claims that in the original decision not only was an arbitrary reference number established of how many second renewals of temporary staff contracts were possible but furthermore no reasons were given for the Executive Director of EUIPO’s failure to adhere to that number.

50 It must be noted at the outset that it is stated in point 3 of the new Guidelines that EUIPO sets an indicative reference ratio of 70% officials to 30% non-permanent staff in order to ensure sufficient flexibility in the workforce, allowing it to adapt to changes in demands from industry. Point 3.1 of the new Guidelines stipulates that EUIPO defines on a yearly basis the reference number of possible second renewals of temporary staff contracts available for the following year. Furthermore, the parties do not dispute that, for 2016, a reference number of three available posts had been set in connection with second renewals of temporary staff contracts.

51 In contrast to what is claimed by the applicant in the reply, it must thus be found that it is not the contested decisions but the new Guidelines which provide that a reference number must be set. In addition, the reference number of three available posts was not set in the contested decisions but follows, in the present case, from a decision of EUIPO of which the applicant was informed in an email dated 7 March 2016.

52 Therefore, the fact that the applicant is not in a position either to understand EUIPO’s calculation or to check the objectivity of such a calculation is of no consequence for the reasoning of the contested decisions.

53 Such a reference number in any event was merely indicative, so EUIPO was not obliged to state why ultimately it granted only two second renewals of temporary staff contracts.

54 As regards, moreover, the argument alleging that the reference number is arbitrary, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. Claims and arguments intended to deny that a measure is well founded are thus of no effect in the context of a plea alleging the lack or inadequacy of a statement of reasons (see order of 16 September 2013, Bouillez v Council, T‑31/13 P, EU:T:2013:521, paragraph 20 and the case-law cited).

55 It must be held that the argument that the reference number is arbitrary concerns whether or not the statement of reasons is well founded. Since, as stated in paragraph 53 above, that number was indicative, the present argument is in any event ineffective and must be rejected.

56 Secondly, the applicant claims that the original decision implies that her performance was not of the highest standard, albeit without clarifying that fact. She adds that the original decision thus contradicts itself.

57 In this respect, as mentioned in paragraph 45 above, EUIPO stated in the contested decisions that there had to be exceptional facts justifying a derogation from the necessary turnover of staff for the AECE to decide to renew a temporary staff contract for an indefinite period. EUIPO found that an assessment of the applicant’s case, her performance, skills and expertise in intellectual property did not justify her retention within EUIPO in the long term. In doing so, it explained adequately to the applicant the reasons for its decision not to renew her contract and did not contradict itself in that decision.

58 In the second place, the applicant argues (a) that the statement of reasons for the contested decisions is illegal, (b) that the ground given in the contested decisions stating that priority should be given to permanent positions filled through competitions organised by EPSO contradicts EUIPO’s policy and, (c) that EUIPO departed from its policy in not taking its decisions on the basis of the criteria of performance and stability.

59 However, those arguments are intended to deny that the contested decisions are well founded and are therefore of no effect in the context of a plea alleging the lack or inadequacy of a statement of reasons (see, to that effect, order of 16 September 2013, Bouillez v Council, T‑31/13 P, EU:T:2013:521, paragraph 20 and the case-law cited). Accordingly, the arguments set out in the previous paragraph will be examined in the analysis of the third plea.

The third plea, alleging breach of the duty to have regard for the welfare of staff

61 The applicant invokes a breach of the duty to have regard for the welfare of staff.

62 As a preliminary point, it must be observed that the applicant in the reply claims that the arguments put forward by EUIPO to deny that such a plea is well founded were raised for the first time before the General Court and must therefore be rejected as inadmissible in accordance with the rule of correspondence between the complaint and the action.

63 It is sufficient to point out in this connection that the rule concerned applies only to the admissibility of pleas raised in the application and does not apply to the replies made to those pleas in the defence. In accordance with the right to a fair hearing, the defendant may adopt a position on all the pleas raised by the applicant. Consequently, the arguments developed by EUIPO in response to the applicant’s plea alleging a breach of the duty to have regard for the welfare of staff are admissible.

64 As regards substance, although Article 8 of the CEOS makes it possible to renew a temporary staff contract, it is not an entitlement, but merely a possibility left to the discretion of the competent authority. It is settled case-law that the EU institutions have a wide 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 on condition, however, that the staff are assigned in the interest of the service (see judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 59 and the case-law cited).

65 That discretion must nevertheless be exercised in line with the duty to have regard for the welfare of staff. That duty reflects the balance of the reciprocal rights and obligations established by the Staff Regulations, and by analogy the CEOS, in the relationship between a public authority and its civil servants. That duty implies in particular that when the AECE takes a decision concerning the position of a member of staff, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the staff member concerned (see judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 60 and the case-law cited).

66 Applied to a decision on the possible renewal of a contract of a member of the temporary staff, the duty to have regard to the welfare of staff therefore requires the competent authority, when it takes its decision, to balance the interests of the service and the interests of the staff member (see judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 61 and the case-law cited).

67 The duty to have regard for the welfare of staff also involves the obligation for the competent authority to explain, as part of the statement of grounds for the decision not to renew the contract, the reasons why it had allowed the interests of the service to prevail (see judgment of 17 January 2017, LP v Europol, T‑719/15 P, not published, EU:T:2017:7, paragraph 63 and the case-law cited).

68 In the first place, the applicant takes the view that the decision rejecting the complaint was incorrect inasmuch as it disregarded her arguments as to the duty to have regard for the welfare of staff on the ground that those arguments were developed for the first time in the complaint. She adds that, had EUIPO considered those arguments admissible, it could have examined them more thoroughly.

69 In the circumstances at issue, the applicant asserted in the complaint that no account was taken of the duty to have regard for the welfare of staff and she advanced, in this connection, several matters in relation to her personal situation, as set out in paragraph 18 above.

70 However, it must be stated that in the letter of 2 May 2016 in which EUIPO invited the applicant to comment on the planned decision not to renew her contract, EUIPO informed her that the analysis of her expression of interest had been conducted in the light of the requirements of the service and in accordance with the duty to have regard to the welfare of staff. In the defence, EUIPO confirms in this respect that factors such as the applicant’s age and that of her children were taken into consideration in the examination of her personal file.

71 In addition, in the original decision EUIPO stated that it had examined the possibility of renewing the applicant’s contract, inter alia, in the light of her interest as a staff member.

72 Lastly, in the decision rejecting the complaint, although EUIPO criticised the applicant for the late submission of information relating to her personal and family situation, it replied, as mentioned in paragraph 19 above, to her claim of a breach of the duty to have regard for the welfare of staff.

73 It follows from the foregoing that when EUIPO examined the possibility of renewing the applicant’s contract, although it stressed her late submission of the information on her personal and family situation, it balanced the interests of the service and the applicant’s interests in accordance with the case-law mentioned in paragraph 66 above.

74 In the second place, the applicant claims that pursuant to the new Guidelines the duty to have regard for the welfare of staff should have been balanced with the interests of the service. She states in this regard that, although the original decision refers expressly to her good performance, it does not draw any relevant legal conclusions from that information.

75 It was stated in paragraph 73 above that EUIPO balanced the interests of the service and the applicant’s interests as provided for in the case-law cited in paragraphs 64 to 67 above.

76 Moreover, it must be recalled that a member of the temporary staff with a fixed-term contract in principle does not have any right to the renewal of his contract, which is a mere option, conditional upon such a renewal being in the interests of the service (see, to that effect, judgment of 6 February 2003, Pyres v Commission, T‑7/01, EU:T:2003:27, paragraph 64).

77 In the present case, it follows from what was stated in paragraph 43 above that EUIPO decided not to renew the applicant’s contract on the ground, in particular, that the main component of the workforce of EUIPO was constituted by officials and it was only where there were exceptional facts that justified derogating from the necessary turnover of staff that the AECE decided to renew a temporary staff contract for an indefinite period and that an assessment of the applicant’s case, her performance, skills and expertise in intellectual property did not justify her retention within EUIPO in the long term. It then pointed out that the matters mentioned by the applicant, such as her ability to adapt and her language skills, had been taken into consideration, but did not provide sufficient grounds to find that it was in the interest of the service to renew her contract for a long period.

78 The applicant has put forward nothing such as to establish that in finding that the interests of the service prevailed over the applicant’s personal interests, EUIPO committed a manifest error of assessment. She merely claims, although without giving further details, that the original decision refers expressly to her good performance but does not draw from that information the relevant legal conclusions.

79 Furthermore, the argument that EUIPO departed from its policy by not taking those decisions on the basis of the criteria of performance and stability must be rejected. First, it follows from paragraph 77 above that EUIPO took into account the performance of the applicant in the adoption of the contested decisions. Secondly, the need for workforce stability cannot in itself warrant a renewal of the applicant’s contract.

80 The applicant also claims that the ground given in the contested decisions that priority had to be given to permanent positions filled through competitions organised by EPSO contradicts EUIPO’s policy that both officials and temporary staff with indefinite contracts serve the objective of stability. In any event, since the applicant has not established the illegality of the other grounds on which the contested decisions were based, namely the grounds set out in particular in paragraphs 45 and 77 above, such an argument is irrelevant and must be rejected.

81 Lastly, it must be held that the applicant does not state how the grounds of the contested decisions are illegal per se.

82 Accordingly, the applicant has not established that EUIPO infringed the duty to have regard for the welfare of staff.

84 The applicant claims that the words ‘younger qualified colleagues’ used by EUIPO in the letter of 2 May 2016 cannot be understood to mean ‘new and qualified staff members’, despite the attempts in the original decision to interpret them as doing so, but clearly refer to age. She observes in this connection that it is apparent from point 5.5 of the Multi-Annual Staff Policy Plan 2016-2020 and point 3.2 of the Management Framework that the main concern of EUIPO was to reverse the continued ageing of its staff, who were on average 45.5 years old. She adds that such a policy must not constitute a criterion in the renewal of temporary staff contracts inasmuch as it is not only illegal but also unethical. She refers in this connection to Article 21(1) of the Charter of Fundamental Rights of the European Union and to Article 2 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

85 It must be observed in this connection that case-law has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law to which Directive 2000/78 has given specific expression in the employment and occupation field (see, to that effect, judgment of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 21). The prohibition of any discrimination on grounds, inter alia, of age is incorporated in Article 21 of the Charter of Fundamental Rights which, from 1 December 2009, has the same legal status as the treaties (judgment of 13 September 2011, Prigge and Others, C‑447/09, EU:C:2011:573, paragraph 38).

86 In the present case it is apparent from the documents in the file that, in the letter of 2 May 2016, EUIPO states inter alia that its new policy recognises the need for a reasonable turnover of staff, allowing for younger qualified colleagues to join the workforce. The applicant bases her claims as to discrimination on grounds of age in the present case on that wording.

87 However, in the contested decisions, EUIPO specified what it meant by ‘younger qualified colleagues’. Thus, in the original decision EUIPO drew attention to the fact that it faced a need for staff turnover and such a requirement was met by new and qualified staff members joining its workforce. It added that the reference to ‘new and qualified staff’ in the letter of 2 May 2016 had to be understood in that context and that age was not a criterion for renewal. Likewise, in the decision rejecting the complaint, EUIPO asserted that it was clear that age was not a criterion in the renewal procedure and that it played no role in the decision-making process as to whether or not to renew the contract of a member of the temporary staff. It also reiterated the content of the original decision in this connection.

88 It follows from the foregoing that, despite the clumsy wording in the letter of 2 May 2016, EUIPO’s intention, reiterated in each of its items of correspondence with the applicant, was to promote workforce stability by recruiting officials while ensuring flexibility through temporary staff contracts.

89 In addition, it is apparent from the decision rejecting the complaint that one of the two colleagues granted a contract renewal in the 2016 renewal procedure was older than the applicant. The applicant moreover does not dispute that fact, but merely claims that even if the criterion of age did not exclude the other candidates, it had a restrictive effect on the evaluation of her application and that, had that criterion not been taken into account, her contract would have been renewed for an indefinite period.

90 It follows from the foregoing that the present plea must be rejected and the action dismissed in its entirety.

91 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> SB v EUIPO (Civil service - Temporary staff - Judgment) [2018] EUECJ T-200/17 (03 May 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T20017.html Cite as: [2018] EUECJ T-200/17, ECLI:EU:T:2018:244, EU:T:2018:244

Court of Justice of the European Communities (including Court of First Instance Decisions)