Decision of the European Ombudsman on complaint 2073/2003/GG against the European Commission

Strasbourg, 30 September 2004

Dear Mr V.,

On 27 October 2003, you made a complaint to the European Ombudsman concerning your work for the European Commission.

On 17 November 2003, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 6 February 2004. I forwarded it to you on 16 February 2004 with an invitation to make observations, which you sent on 3 March 2004.

On 7 April 2004, I asked the Commission to provide further information in relation to your case. The Commission sent its reply on 1 June 2004. I forwarded it to you on 10 June 2004 with an invitation to make observations, which you sent on 7 July 2004.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

Background

The Conditions of employment of other servants of the European Communities (“the Conditions”) apply inter alia to the temporary staff of the EU.

Article 2 of the Conditions defines the term “temporary staff” as follows:

“(a) staff engaged to fill a post which is included in the list of posts appended to the section of the budget relating to each institution and which the budgetary authorities have classified as temporary;

(b) staff engaged to fill temporarily a permanent post included in the list of posts appended to the section of the budget relating to each institution;

(c) (…);

(d) staff engaged to fill temporarily a permanent post paid from research and investment appropriations and included in the list of posts appended to the budget relating to the institution concerned."

According to Article 8 of the Conditions, temporary staff to whom Article 2 (a) applies may be engaged for a fixed or indefinite period. In the version applicable at the time of the facts that gave rise to the present case, the last (fifth) paragraph of Article 8 further provided as follows:

“The contracts of temporary staff to whom Article 2(a) or Article 2(d) applies who are engaged for a fixed period may be renewed not more than once for a fixed period. Any further renewal shall be for an indefinite period.”(1)

On 13 November 1996(2), the Commission adopted a decision aiming at establishing a new policy with regard to temporary staff to whom Article 2 (a) of the Conditions applies. This decision limits the contracts that can be granted to temporary staff recruited under Article 2 (a) of the Conditions to three years, with the possibility of a single extension for a limited period of time(3).

The complainant’s case

On 16 December 1999, the complainant was recruited as a temporary agent under Article 2 (a) of the Conditions for a period of three years and was employed in the Commission’s Directorate-General (“DG”) Trade. In its letter of 29 November 1999 forwarding the contract to the complainant, the Commission’s DG Personnel and Administration pointed out that the contract could "only be extended [by] a maximum period of 3 months, according to the decision of the Commission of 13 November 1996 imposing a maximum term on the various types of contract". The complainant was initially classified in grade A5 step 1. This was subsequently (and with retroactive effect) changed to grade A4 step 1.

On 15 October 2002, DG Trade wrote to DG Personnel and Administration in order to request an extension of the complainant’s contract by three months. On 19 November 2002, DG Personnel and Administration informed the complainant that this extension had been granted.

In a note to DG Personnel and Administration dated 24 February 2003, DG Trade pointed out that the complainant’s contract under Article 2 (a) of the Conditions was about to expire and could not be extended anymore ("ne peut plus être prolongé"). However, DG Trade expressed the desire and the need to retain the complainant’s services beyond the date on which his (extended) contract expired (15 March 2003). DG Trade noted that the complainant combined two extremely rare talents, being an informatics expert of a very high level and possessing a thorough knowledge of international trade, and that it wished to use the complainant’s services in relation to the forthcoming WTO conference in Cancún which would be held in September 2003. It expressed its intention to offer the complainant a contract as a temporary agent under Article 2 (b) of the Conditions to be limited until the end of September 2003(4). DG Trade noted that such contracts could normally only be offered for grades up to A6. In view of the special circumstances of the case, however, DG Trade asked for a derogation from this rule so that it would be possible to maintain the complainant in his present grade.

In its note, DG Trade pointed out that the complainant’s post had been published internally with a deadline for applications on 26 February 2003. However, no candidates had emerged yet and DG Trade expressed the view that it would not be possible to find a candidate having the same qualifications and the same experience inside the Commission. DG Trade also noted that it had started looking for a temporary agent under Article 2 (a) of the Conditions in order to replace the complainant but that it would be unlikely to find a candidate having the experience that was necessary for the conference in Cancún within a short period of time.

On 12 March 2003, DG Personnel and Administration informed DG Trade that its request had been accepted. By letter of 14 March 2003, DG Personnel and Administration informed the complainant that a new contract of employment for temporary staff under Article 2 (b) of the Conditions had been granted to him with a duration of 6.5 months (until 30 September 2003) which could not be extended.

On 12 June 2003, the complainant lodged a complaint pursuant to Article 90 (2) of the Staff Regulations(5). He argued that once the Commission had decided to retain his services in the same position, at the same grade and without an interruption of service, it should have offered him a contract as temporary staff of indefinite duration under Article 2 (a) of the Conditions, as provided by the last sentence of Article 8 of the Conditions. In the complainant’s view, there could be no reason for granting him a contract under Article 2 (b) of the Conditions, except to allow the Commission to circumvent Article 8, last sentence of the Conditions. The complainant also relied on what he considered to be a general principle of social and labour law, according to which it was obligatory to grant a contract of indefinite duration in circumstances such as the present ones. In the complainant’s view, the Commission’s Decision of 13 November 1996 was also in contradiction with the last sentence of Article 8 of the Conditions.

The complainant also submitted that granting him a new contract under Article 2 (b) of the Conditions had created a legitimate expectation that his contract should be renewed for an indefinite period.

On 28 August 2003, the Commission rejected the complaint that had been lodged by the complainant. In the Commission’s view, its decision in the present case had been correct, as confirmed by the judgement of the Court of First Instance of 11 July 2002 in Joined Cases T-137/99 and T-18/00 Martínez Páramo v Commission which concerned a similar situation. The Commission further took the view that its powers had been exercised for a reasonable and proper purpose and that there had thus been no abuse of power. It also submitted that the Commission’s Decision of 13 November 1996 had not been applied to the present case and that its validity was therefore not in question.

In his complaint to the Ombudsman, the complainant reiterated the views expressed in his Article 90 (2) complaint. He submitted that the circumstances of his case were fundamentally different from those present in the case decided by the Court in the case quoted by the Commission. The complainant stressed in particular that in that case, the contracts under Article 2 (b) of the Conditions had been granted for the benefit of the staff concerned whereas in his case this had been done for the sole benefit of the Commission.

In the complainant’s view, the Commission also failed to take into account 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 no. L 175, p. 43).

The complainant thus substantially made the following allegations:

(1) The Commission’s decision to grant him a contract under Article 2 (b) of the Conditions of employment of other servants of the European Communities rather than a contract with indefinite duration under Article 2 (a) of the Conditions was unlawful.

(2) The relevant decision constituted an abuse of power on the part of the Commission.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission referred to its decision of 28 August 2003 rejecting the complainant's Article 90 (2) complaint. The Commission expressed the view that it could only reiterate this decision.

The complainant's observations

In his observations, the complainant maintained his complaint. He stressed that the note of DG Trade of 24 February 2003 made it abundantly clear that there had been an impediment to his being offered an extension of his contract under Article 2 (a) of the Conditions. The complainant submitted that the Commission had failed to address his concerns about the Commission’s Decision of 13 November 1996. He further referred to the judgement of the Court of First Instance of 27 November 2003 in Joined Cases T-331/00 and T-115/01 Bories and others v Commission in which the Court had, according to the complainant, found an internal Commission policy, similar in nature to the 1996 policy decision, to be inconsistent with Article 8 of the Conditions.

The complainant stressed that the granting of the contract under Article 2 (b) of the Conditions had been in the Commission's own interest. He added that upon leaving the service of the Commission, he had been informed that he had lost the ability to transfer the pension rights he had acquired while employed under Article 2 (a) since he had left under an Article 2 (b) contract. The complainant submitted that it was therefore difficult to imagine how this contract could be interpreted as having been in his personal interest.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary.

The request for further information

On 7 April 2004, the Ombudsman therefore addressed a request for further information to the Commission, asking the latter (1) to explain why the possibility to grant the complainant a new contract under Article 2 (a) of the Conditions had not been considered, (2) to comment on the complainant’s observations on its opinion and (3) to express its views regarding the conclusions to be drawn for the present case from the Court’s judgement in the Bories case, particularly paragraph 62 thereof. The Commission was also asked to provide a copy of the provisions of the “nouvelle politique des agents temporaires relevant de l’article 2a du RAA” which it had adopted in November 1996.

The Commission's reply

In its reply, the Commission made the following comments:

The complainant had voluntarily signed his contract without disputing its legality before submitting his Article 90 (2) complaint to the Commission. The Cancún conference, i.e. a very specific and temporary situation, had been the sole reason why the complainant had been offered a new contract under Article 2 (b) of the Conditions.

In the context of the organisation of its services, the Commission had wide powers of discretion as regards the duration and extension of temporary staff contracts. The extension of the contractual relationship under Article 2 (b) of the Conditions had been in the interest of the service, but also in line with existing rules.

The Decision of 1996 was perfectly compatible with Article 8 of the Conditions. The general rule laid down in this decision was that the duration of temporary contracts was limited to three years, with the possibility of an extension for a maximum of one year. However, in cases where, for reasons left to the Commission's discretion, a further extension might be proposed under Article 2 (a) of the Conditions, such a contract would be of indefinite duration, as foreseen by Article 8 of the Conditions.

The Commission observed the principles of care and legitimate expectation with regard to the complainant. In actual fact, the complainant had benefited from an extension of his contract which had made it easier for him to manage the consequences of the end of his contractual relationship with the Commission.

As regards the possibility to transfer the actuarial equivalent of the pension rights acquired by a temporary agent, it was true that this only applied to contracts under Article 2 (a), 2 (c) and 2 (d) of the Conditions. However, although temporary agents(6) could not make use of this possibility to transfer pension rights, they were entitled to the severance grant provided for in Article 12 of Annex VIII of the Staff Regulations.

The judgement in the Bories case confirmed that an internal decision limiting the duration of a contract to a duration of less than that allowed by Article 8 of the Conditions could not justify a subsequent decision to refuse to extend a contract. However, the judgement did not create an obligation to extend a temporary agent's contract but merely meant that such an extension could not be totally ruled out.

The Commission submitted a copy of a document dated 12 November 1996 and bearing the title “Politique des agents temporaires relevant de l’article 2 a) du régime applicable aux autres agents des Communautés européennes (RAA)” that was to be submitted to the Commission on 13 November 1996.

The complainant's observations

In his observations, the complainant took the view that the Commission's Decision of 1996 imposed fixed limits for contracts under Article 2 (a) of the Conditions and did not allow for any flexibility, as the Commission's reply implied. The complainant also stressed that signing the Article 2 (b) contract did not mean that he had waived his right to dispute the type of contract that was offered to him.

As regards the issue of transferable pension rights, the complainant noted that he would have expected the Commission to document its contention that he did not suffer any damage to his interests.

The complainant pointed out that he would appreciate it if the Ombudsman were to proceed to a decision on his case.

THE DECISION

1 Failure to grant extension of contract under Article 2 (a) of the Conditions

1.1 The complainant was engaged as a temporary agent under Article 2 (a) of the Conditions of employment of other servants of the European Communities (“the Conditions”) in December 1999 for a period of three years and employed in the Commission’s Directorate-General (“DG”) Trade. Article 2 (a) of the Conditions concerns staff engaged to fill a post that is considered to be temporary. In its letter of 29 November 1999 forwarding the contract to the complainant, the Commission’s DG Personnel and Administration pointed out that the contract could "only be extended [by] a maximum period of 3 months, according to the decision of the Commission of 13 November 1996 imposing a maximum term on the various types of contract". In 2002, the contract was extended by another three months until 15 March 2003. In a note to the Commission's DG Personnel and Administration dated 24 February 2003, DG Trade pointed out that the complainant’s contract under Article 2 (a) of the Conditions was about to expire and could not be extended anymore ("ne peut plus être prolongé"). DG Trade noted that it wished to use the complainant’s services in relation to the forthcoming WTO conference in Cancún which would be held in September 2003. It therefore expressed its intention to offer the complainant a contract as a temporary agent under Article 2 (b) of the Conditions to be limited until the end of September 2003. Article 2 (b) of the Conditions concerns staff temporarily engaged to fill a permanent post. By letter of 14 March 2003, DG Personnel and Administration informed the complainant that a new contract of employment for temporary staff under Article 2 (b) of the Conditions had been granted to him with a duration of 6.5 months (until 30 September 2003) which could not be extended.

1.2 In his complaint to the Ombudsman lodged in October 2003, the complainant argued that once the Commission had decided to retain his services in the same position, at the same grade and without an interruption of service, it should have offered him a contract as temporary staff of indefinite duration under Article 2 (a) of the Conditions, as provided by the last sentence of Article 8 of the Conditions. The complainant therefore alleged that the Commission's decision to grant him a contract under Article 2 (b) of the Conditions was unlawful.

1.3 The Commission submitted that in the context of the organisation of its services, it had wide powers of discretion as regards the duration and extension of temporary staff contracts. According to the Commission, the extension of the contractual relationship under Article 2 (b) of the Conditions had been in the interest of the service, but also in line with existing rules. The Commission also pointed out that the complainant had voluntarily signed his contract without disputing its legality before submitting a complaint.

1.4 The Ombudsman notes that the Commission does not suggest that any conclusions should be drawn from the fact that the complainant signed the last contract without disputing its legality. However, and for the avoidance of any doubt, the Ombudsman considers it useful to stress that the mere fact of signing the Article 2 (b) contract did not mean that the complainant wished to waive his right to dispute the type of contract that was offered to him.

1.5 The Ombudsman notes that Article 8 of the Conditions provides that contracts of temporary staff to whom Article 2(a) applies who are engaged for a fixed period may be renewed not more than once for a fixed period and that any further renewal "shall be for an indefinite period". Article 8 thus clearly envisages the possibility that contracts for a fixed period of time under Article 2 (a) that have already been extended for another fixed period can be extended again, this time for an indefinite period. This interpretation is confirmed by the judgement of the Court of First Instance of 27 November 2003 in Joined Cases T-331/00 and T-115/01 Bories and others v Commission(7) which concerned contracts under Article 2 (d) of the Conditions. It should be noted that in the version applicable at the time of the facts that gave rise to the present case (and of the facts giving rise to the judgement in the Bories case), the above-mentioned provisions of Article 8 applied to contracts under Article 2 (a) as well as to contracts under Article 2 (d) of the Conditions.

1.6 The complainant had a contract for a fixed period under Article 2 (a) that had been extended once for a further fixed period. It follows from the above that in February/March 2003, the Commission thus had the possibility to extend the complainant's contract under Article 2 (a), provided that such an extension was in the interest of the service. The Ombudsman notes that the granting of the contract under Article 2 (b) of the Conditions was due to the fact that the Commission wished to use the complainant's services at the WTO conference in Cancún in September 2003. There was thus clearly an interest of the service in extending the duration of the complainant's employment with the Commission. It is true that this reason only appears to have covered an extension for a limited period of time, and not for an indefinite period. However, regard should be had in this context to the judgement of the Court of First Instance of 11 July 2002 in Joined Cases T-137/99 and T-18/00 Martínez Páramo v Commission(8). This case concerned temporary agents whose contracts under Article 2 (a) of the Conditions had expired and to whom the Commission had granted a new contract under Article 2 (b) for a limited period of time in order to enable these persons to take part in internal competitions. The Court considered that the Commission had acted in the interest of the plaintiff and that Articles 2 and 8 of the Conditions had not been infringed(9). It added that instead of granting a contract under Article 2 (b), the Commission could also have extended the contract under Article 2 (a) of the Conditions for an indefinite period, given that such a contract could be terminated by simply giving three months' notice, without any need to give reasons(10). The Ombudsman considers that if an extension of an Article 2 (a) contract was considered possible by the Court in the Martínez Páramo case where the Commission had acted in the interest of the plaintiff, the same should apply a fortiori in the present case where the prolongation of the complainant's employment was clearly in the interest of the service.

1.7 In the light of the above, the Ombudsman considers that the Commission had two possibilities in the present case, i.e. to extend the contract under Article 2 (a) of the Conditions or to grant a new contract under Article 2 (b). It clearly emerges from the evidence available to the Ombudsman that the Commission never considered the possibility to grant the complainant an extension of his contract under Article 2 (a). The Ombudsman also notes that the Commission has not submitted, despite being expressly asked to address the issue by the Ombudsman, any explanations as to why it did not consider this possibility. It is true that the Commission has wide powers of discretion as regards the duration and extension of temporary staff contracts. The Ombudsman considers, however, that the exercise of this discretion presupposes that the Commission considers all the possibilities that are at its disposal before opting for one of them. This has clearly not happened in the present case.

1.8 In these circumstances, the Ombudsman considers that the Commission's failure to consider the possibility of extending the complainant's contract under Article 2 (a) of the Conditions rather than give him a new contract under Article 2 (b) constitutes maladministration. A critical remark will be made in this regard.

1.9 In order to avoid any possible misunderstanding, the Ombudsman does not exclude the possibility that, had the Commission properly addressed itself to the issue, it might have been entitled to conclude that there were good reasons to offer the complainant a contract under Article 2 (b) rather than 2 (a) of the Conditions. The maladministration identified by the Ombudsman is that the Commission never addressed itself to the question of what would be a proper choice between these two possibilities.

2 Abuse of power

2.1 The complainant alleged that by acting as it did, the Commission committed an abuse of power. In the complainant’s view, there could be no reason for granting him a contract under Article 2 (b) of the Conditions, except to allow the Commission to circumvent Article 8, last sentence of the Conditions.

2.2 The Commission took the view that it had acted in conformity with the applicable rules.

2.3 According to settled case-law, a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive, or at least the main, purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (Case C-285/94 Italy v Commission [1997] ECR I-3519, paragraph 52, and Case T-143/89 Ferriere Nord v Commission [1995] ECR II-917, paragraph 68).

2.4 In the present case, the complainant argued that once the Commission had decided to retain his services in the same position, at the same grade and without an interruption of service, it should have offered him a contract as temporary staff of indefinite duration under Article 2 (a) of the Conditions, as provided by the last sentence of Article 8 of the Conditions.

2.5 The Ombudsman considers that the complainant's view appears to be reasonable at first sight, given that such an extension would appear to have presented the easiest solution to the Commission's needs. It should be noted that the granting of a contract under Article 2 (b) of the Conditions also made it necessary for the Commission to grant a derogation from its internal rules so as to make it possible to maintain the complainant in his previous grade. However, opting for one of two possibilities does not constitute evidence of a misuse of power, even if the possibility chosen may not be the more obvious one.

2.6 The Ombudsman notes that the complainant also argued that the Commission's Decision of 1996 concerning a new policy towards temporary staff had imposed fixed limits for contracts under Article 2 (a) of the Conditions and that this was the reason why no extension of his contract under Article 2 (a) had been granted.

2.7 The Commission accepted that the judgement in the Bories case (to which the complainant had referred) confirmed that an internal decision limiting the duration of a contract to a duration of less than that allowed by Article 8 of the Conditions could not justify a subsequent decision to refuse to extend a contract. However, the Commission argued that its Decision of 1996 was perfectly compatible with Article 8 of the Conditions. According to the Commission, the general rule laid down in this decision was that the duration of temporary contracts was limited to three years, with the possibility of an extension for a maximum of one year. However, in cases where, for reasons left to the Commission's discretion, a further extension might be proposed under Article 2 (a) of the Conditions, such a contract would be of indefinite duration, as foreseen by Article 8 of the Conditions.

2.8 Further to the Ombudsman's request to produce a copy of this decision, the Commission submitted a copy of a document dated 12 November 1996 and bearing the title “Politique des agents temporaires relevant de l’article 2 a) du régime applicable aux autres agents des Communautés européennes (RAA)” that was to be submitted to the Commission on 13 November 1996.

2.9 The Ombudsman does not consider it necessary to decide whether the Commission's interpretation of this text is correct. It should nevertheless be noted that according to point 6 (b) of this text, contracts under Article 2 (a) can be renewed once, bringing the contractual period to a maximum of four years. The Ombudsman considers that it is abundantly clear that the Commission's services at least were of the firm opinion that this Decision prevented them from granting a further extension of a contract under Article 2 (a) in circumstances like the present ones. It should be recalled that in its letter of 29 November 1999 forwarding the contract to the complainant, the Commission’s DG Personnel and Administration pointed out that the contract could "only be extended [by] a maximum period of 3 months, according to the decision of the Commission of 13 November 1996 imposing a maximum term on the various types of contract"(11). In its note to DG Personnel and Administration dated 24 February 2003, DG Trade pointed out that the complainant’s contract under Article 2 (a) of the Conditions was about to expire and could not be extended anymore ("ne peut plus être prolongé").

2.10 In these circumstances, the Ombudsman considers that the Commission's approach in the present case was clearly misguided. However, and as mentioned above (see point 2.3), in order to constitute a misuse of powers a measure must have been taken with the exclusive, or at least the main, purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. In the present case, it appears that the Commission was not conscious of the possibility to extend the complainant's contract under Article 2 (a) of the Conditions. In these circumstances, there would appear to be insufficient evidence to show that the Commission acted with the purpose of evading a procedure specifically foreseen by Community law for dealing with the circumstances of the case. No maladministration can thus be found as regards this aspect of the complaint.

3 Conclusion

3.1 On the basis of the Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark:

The Commission has wide powers of discretion as regards the duration and extension of temporary staff contracts. The Ombudsman considers, however, that the exercise of this discretion presupposes that the Commission considers all the possibilities that are at its disposal before opting for one of them. In the present case, the Commission granted the complainant a new contract under Article 2 (b) of the Conditions of employment of other servants of the European Communities (“the Conditions”) without at all considering the possibility to extend his contract under Article 2 (a) of the Conditions, a possibility expressly foreseen in Article 8 of the Conditions. This is an instance of maladministration.

3.2 Given that this aspect of the case concerns procedures relating to specific events in the past, that the complainant has not submitted an express claim for damages and that he has asked the Ombudsman to decide on his complaint, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The new version of Article 8 (1) in force since 1 May 2004 reads as follows: "Temporary staff to whom Article 2 (a) applies may be engaged for a fixed and indefinite period. The contracts of such staff who are engaged for a fixed period may be renewed not more than once for a fixed period. Any further renewal shall be for an indefinite period."

(2) This appears to be the likeliest date for the adoption of this decision. It should however be noted that the complainant and some of the Commission documents submitted by the complainant refer to "14 November".

(3) The complainant refers to one year, whereas the Commission, in its letter of 29 November 1999 forwarding the contract to the complainant (see below) mentions a maximum period of three months.

(4) It appears that the relevant post was held by a civil servant who was on secondment until 30 September 2003.

(5) Applicable by analogy to temporary staff by virtue of Article 46 of the Conditions.

(6) It is not clear whether the reference here is only to temporary agents employed on the basis of Article 2 (b) of the Conditions.

(7) See paragraph 59 of the judgment.

(8) [2002] ECR SC I-A-119, II-639.

(9) Loc. cit., paragraphs 92 sequ., 107.

(10) Loc. cit., paragraph 105.

(11) On the basis of the text of the 1996 Decision provided by the Commission, this view would also have been mistaken in so far as the maximum period of the first extension was concerned, given that the said Decision allows for a maximum of four years.