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

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

7 May 2019 (*)

(Civil service — Temporary staff — Fixed-term contracts — Decision not to renew — Manifest error of assessment — Duty to have regard for the welfare of staff — Equal treatment — Rule of correspondence between the application and the complaint)

In Case T‑407/18,

WP, a former member of the temporary staff of the European Union Intellectual Property Office, represented by H. Tettenborn, lawyer,

applicant,

v

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

defendant,

APPLICATION under Article 270 TFEU seeking annulment of the decision of EUIPO of 6 October 2017 refusing a second renewal of the applicant’s temporary staff contract,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, M. Kancheva and G. De Baere (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

 Background to the dispute

1        On 1 July 2010, the applicant, WP, was recruited by the European Union Intellectual Property Office (EUIPO) as a member of the temporary staff for a three-year period until 30 June 2013, under Article 2(a) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’).

2        On 1 July 2013, the applicant’s contract was renewed for a five-year period, ending on 30 June 2018.

3        As a result of the reform of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), which entered into force on 1 January 2014, the applicant’s contract was converted into a contract under Article 2(f) of the CEOS as of that date.

4        By email of 11 May 2017, EUIPO invited the applicant, in accordance with the Guidelines for the renewal of temporary [staff] contracts at [EUIPO] (‘the Guidelines’) and on the basis of the Framework for the workforce management in [EUIPO] (‘the Management Framework’), to express, in writing within ten working days, her interest in a second renewal of her contract for an indefinite period.

5        By email of 25 May 2017, the applicant expressed her interest in the renewal of her contract.

6        By email of 28 July 2017, the authority authorised to conclude contracts of employment (‘the AACC’) informed the applicant that, as a result of its preliminary analysis, a second renewal of her contract was not envisaged and invited her to submit her comments in writing by 15 September 2017. The applicant did not file any observations following that email.

7        By decision of 6 October 2017 (‘the contested decision’), notified to the applicant on 11 October 2017, the AACC decided not to renew the applicant’s contract for an indefinite period.

8        By letter dated 1 December 2017, the applicant brought a complaint against the contested decision pursuant to Article 90(2) of the Staff Regulations.

9        By decision of 19 March 2018, notified to the applicant on 20 March 2018, EUIPO rejected the applicant’s complaint.

 Procedure and forms of order sought

10      By application lodged at the Court Registry on 2 July 2018, the applicant brought the present action.

11      Since the parties had not requested a hearing under Article 106(1) of the Rules of Procedure of the General Court, the General Court (Eighth Chamber), considering that it had sufficient information available to it from the material in the file, decided to rule on the action without an oral part of the procedure in accordance with Article 106(3) of the Rules of Procedure.

12      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

13      EUIPO contends that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

 Law

14      In support of her action, the applicant raises four pleas in law, alleging (i) infringement of Article 56 of the CEOS and Article 110 of the Staff Regulations and the lack of a legal basis for the contested decision, (ii) infringement of the principle of legality, a manifest error of assessment and infringement of the duty to have regard for the welfare of staff, (iii) infringement of Article 27(1) and (2)(b) of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1), and (iv) breach of the principle of equal treatment.

 The first plea, alleging infringement of Article 56 of the CEOS and Article 110 of the Staff Regulations and the lack of a legal basis

15      As a preliminary point, it should be noted that Article 8(1) of the CEOS provides:

‘Temporary staff to whom Article 2(a) or Article 2(f) applies may be engaged for a fixed or 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.’

16      Article 56 of the CEOS provides that, in accordance with Article 110(2) of the Staff Regulations, each agency is to adopt general provisions on the procedures governing the engagement and use of temporary staff referred to in Article 2(f) of the CEOS.

17      Article 110(2) of the Staff Regulations lays down the arrangements for adopting general implementing provisions applicable to agencies.

18      In the first place, the applicant submits that the contested decision is unlawful in so far as it is based on a selection procedure which infringes Article 56 of the CEOS and Article 110(2) of the Staff Regulations and has no other legal basis. In particular, the procedure laid down in the Guidelines and the Management Framework was not adopted in accordance with the rules laid down in Article 110 of the Staff Regulations.

19      In that regard, it should be noted, first, that the appropriate legal basis for adopting a decision concerning the renewal of a contract as a member of the temporary staff referred to in Article 2(f) of the CEOS, such as the contested decision, is Article 8 of the CEOS. Secondly, it must be held that the contested decision was adopted on the basis of Article 8 of the CEOS and that that legal basis is expressly stated in the decision rejecting the applicant’s complaint.

20      It should also be noted that on 31 May 2016, the Management Board of EUIPO adopted, on the basis of Article 56 of the CEOS and Article 110(2) of the Staff Regulations, Decision MB-16-16 laying down general implementing provisions on the procedure governing the engagement and use of temporary staff under Article 2(f) of the [CEOS]. That decision is available on EUIPO’s website.

21      Chapter V of Decision MB-16-16, on the common provisions for the application of Article 8(1) of the CEOS, provides, in Article 16 thereof, that it is the Director of EUIPO who establishes EUIPO’s policy on the duration of contracts and that that policy is to be communicated to staff.

22      It follows that the general implementing provisions of EUIPO, adopted in accordance with Article 110 of the Staff Regulations, leave a margin of discretion to EUIPO to determine its policy on the renewal of contracts of temporary staff.

23      In that regard, it is sufficient to note that this policy is defined in the Management Framework and that the procedure is determined in the Guidelines, which have both been communicated to the personnel.

24      Accordingly, the applicant cannot argue that the procedure provided for in the Guidelines and the Management Framework was adopted in breach of Article 56 CEOS and of Article 110 of the Staff Regulations. It is also wrong, therefore, to claim that the contested decision, adopted at the end of that procedure, is unlawful.

25      In the second place, the applicant claims that the Guidelines and the Management Framework clearly define a selection procedure for the second renewal of contracts for temporary staff. The procedure on which the contested decision is based resulted, it is claimed, in a decision as to which candidates would be invited by EUIPO to sign a temporary staff contract for an indefinite period and not in an individual decision.

26      The applicant relies on three elements to claim that EUIPO has put in place a procedure to compare the merits of temporary staff and not to decide on the basis of the merits of each individual case.

27      First, she argues that section 3.1 of the Guidelines and section 3.4 of the Management Framework provide that EUIPO is to define the reference number of second renewals of contracts of temporary staff available for the following year.

28      In that regard, it should be noted that the Guidelines establish the procedure for the second renewal of contracts for temporary staff under Article 2(f) of the CEOS. The Management Framework recalls the principles guiding the workforce management of EUIPO.

29      Section 3.1 of the Guidelines and section 3.4 of the Management Framework provide:

‘On a yearly basis, [EUIPO] will define, in accordance with section 3.2 [of the Management Framework], the reference number of possible second renewals of contracts of temporary [staff] available for the following year.’

30      It should be recalled that the reference number of posts available mentioned in section 3.1. of the Guidelines is merely indicative (judgment of 3 May 2018, SB v EUIPO, T‑200/17, not published, EU:T:2018:244, paragraph 53).

31      In that regard, EUIPO states, first, that in 2016 the reference number of possible second renewals was three contracts and that only two temporary staff contracts were renewed and, secondly, that, in 2017, the reference number was four contracts, while five contracts were in fact renewed.

32      Therefore, the existence of a reference number does not call into question the individual character of renewal or non-renewal of a temporary staff contract.

33      Furthermore, the applicant maintains that the reference number of possible second renewals was significantly lower than the number of temporary staff whose contracts ended in 2018.

34      It should be noted that the fact that the reference number is lower than the number of temporary staff whose contracts ended in 2018 is justified by the fact that, according to section 3 of the Guidelines, taking into account the principles described in section 3.2 of the Management Framework, EUIPO sets an indicative reference ratio of 70% — 30% between permanent and non-permanent staff, in order to ensure sufficient flexibility in the workforce, allowing to adapt to changes in demands from industry, while keeping the budget under control.

35      The applicant has not established that the fact that the renewal for an indefinite period only concerns a limited number of members of the temporary staff whose contracts were to end in 2018 meant that the procedure for determining whether a member of the temporary staff will benefit from such renewal is a selection procedure, especially since this number is purely indicative.

36      Secondly, the applicant states that section 3.1 of the Guidelines also indicates that the members of the temporary staff concerned are required to express their interest in writing within ten working days. EUIPO invited all members of the temporary staff whose contract ended in 2018 to express their interest in a second renewal of their contract before 25 May 2017. It would not have been necessary to set a common deadline for all the temporary staff if the procedure defined by the Guidelines and the Management Framework had been an individual procedure.

37      In that regard, section 3.1 of the Guidelines and section 3.4 of the Management Framework provide:

‘[EUIPO] will then contact during the second quarter the [members of the temporary staff] whose second contract will expire during the next calendar year to inquire if they are interested in the renewal of their contract for an indefinite period.’

38      Section 3.4 of the Management Framework adds:

‘The interests declared by staff will be analysed in light of the interests of the service and following the principle of duty of care. The objective of this procedure is to identify staff interested by a renewal of their contract for an indefinite period and provide a specific attention to them.’

39      Section 3.1 of the Guidelines states that the members of the temporary staff concerned there are required to express their interest in writing within ten working days.

40      As EUIPO observes, in so far as the CEOS does not provide for any specific procedure for contract renewal, the setting of a time limit for the expression of interest falls within the wide discretion of the AACC.

41      Furthermore, section 3.2 of the Management Framework states that EUIPO needs temporary staff that provides flexibility in the workforce, in order to adapt the workforce to market fluctuations, generating variations in terms of an increase or decrease in the activities of EUIPO. In order to ensure that flexibility, a 70% — 30% ratio between permanent and non-permanent staff will serve as an indicative reference point for the workforce composition. That section of the Management Framework provides that ‘[i]n order to implement this principle, the second renewal of temporary [staff] 2(f) contracts, which in accordance with Article 8 CEOS is for an indefinite period, must be carefully managed’ and that ‘[f]or this purpose, as part of the budget preparation of the year N and N+1, [EUIPO] calculates for the year N+1 an indicative reference number of possibilities for indefinite staff and/or for permanent staff”.

42      It follows that setting an identical deadline for the members of the temporary staff to express their interest in the second renewal of their contract, in the year before its expiry, is justified on grounds of workforce flexibility and budgetary predictability.

43      The applicant does not demonstrate why the setting of this deadline would be inconsistent with the fact that each case will then be examined individually by the AACC.

44      Thirdly, the applicant states that, according to section 3.3 of the Guidelines, the human resources department (‘the HRD’) establishes a list of members of the temporary staff proposed for renewal or non-renewal. The procedure relies on comparative elements proposed by the HRD to the AACC. According to the applicant, the AACC has never departed from the proposal of the HRD.

45      Section 3.3 of the Guidelines provides:

‘The analysis of the expressions of interest is prepared by the HRD, following an individual assessment of each particular case. As a result, [the] HRD establishes a list of [members of the temporary staff] proposed for renewal or non-renewal.

The proposal of [the] HRD including the expressions of interest and any supporting documents sent by the temporary [staff] are presented to the AACC. 

The AACC proceeds with a preliminary analysis. The temporary [staff] whose renewal is not envisaged will be invited to submit their written comments within 10 working days on the intended decision as well as on the supporting documents at the disposal of the AACC. 

The AACC will then proceed with the final assessment and adopts the individual decision for renewal of contracts for an indefinite period or non-renewal, taking into consideration all the supporting documents and the written comments submitted by the temporary [staff] concerned.’

46      Accordingly, section 3.3 of the Guidelines states that the analysis of the expressions of interest is prepared by the HRD following an individual assessment of each particular case and that, as a result, the HRD establishes a list of members of the temporary staff proposed for the renewal or non-renewal.

47      Contrary to what the applicant claims, it is not apparent from the file that the preliminary analysis of the expressions of interest carried out by the HRD and the resulting list are based on comparative elements.

48      Furthermore, the fact, as the applicant claims, that the AACC did not depart from the proposal of the HRD does not establish that the procedure is a selection procedure.

49      It follows from all the foregoing that the applicant cannot argue that the procedure for the second renewal of temporary staff contracts established by the Guidelines constitutes a selection procedure.

50      In that regard, it should be noted, on the one hand, that it is not apparent from the procedure provided for by the Guidelines that decisions to renew or not to renew temporary staff contracts for an indefinite period are based on comparative criteria.

51      On the contrary, according to section 3.2 of the Guidelines, decisions on the renewal of a contract for an indefinite period are taken in light of the needs and of the interest of the service, while following the principle of duty of care towards staff members. In its assessment of the needs and interest of the service, the AACC is to take into account, inter alia, the performance of the jobholder, as a key criterion, workforce stability, particularly in the department or service to which the member of the temporary staff is assigned, and budgetary availability. In accordance with its duty of care, EUIPO must consider the specific situation and interests of the member of the temporary staff concerned.

52      On the other hand, it should be noted that the contested decision does not contain any element of comparison of the applicant’s situation with that of other members of the temporary staff who have also expressed an interest in the second renewal of their contract, a claim which is not, moreover, made by the applicant.

53      In the contested decision, the AACC stated that it had examined various elements representing the applicant’s performance and concluded that those factors did not constitute an intellectual property profile with exceptional elements which could justify derogating from the staff turnover necessary to ensure the needed reasonable level of staff renewal of EUIPO. The AACC then examined various aspects of the applicant’s personal situation, mentioned by the applicant in her letter of 25 May 2017. Finally, the AACC considered that it was not in the interest of the service to renew the applicant’s contract for an indefinite period.

54      The applicant cannot therefore claim that the contested decision is not an individual decision.

55      It follows from the foregoing that the first plea in law must be rejected.

 The second plea, alleging breach of the principle of legality, a manifest error of assessment and breach of the duty to have regard for the welfare of staff

56      The applicant submits that, since EUIPO has not put forward any valid and legal interest to justify the non-renewal of her contract, the contested decision is vitiated by a manifest error of assessment and is in breach of EUIPO’s duty to have regard for the welfare of staff.

57      It is clear from the case-law that, 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; judgment of 3 May 2018, SB v EUIPO, T‑200/17, not published, EU:T:2018:244, paragraph 64).

58      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 AACC 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; judgment of 3 May 2018, SB v EUIPO, T‑200/17, not published, EU:T:2018:244, paragraph 65).

59      Applied to a decision on the possible renewal of a contract of a member of the temporary staff, the duty to have regard for 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; judgment of 3 May 2018, SB v EUIPO, T‑200/17, not published, EU:T:2018:244, paragraph 66).

60      The duty to have regard for the welfare of staff also involves the obligation of 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; judgment of 3 May 2018, SB v EUIPO, T‑200/17, not published, EU:T:2018:244, paragraph 67).

61      In the first place, the applicant submits that the contested decision is unlawful on the ground that it was adopted following a selection procedure and not on the basis of the merits of the individual case.

62      It should be noted that it is apparent from the analysis of the first plea that the applicant is wrong to claim that the procedure put in place by the Guidelines and which led to the adoption of the contested decision was a selection procedure.

63      Therefore, the arguments raised by the applicant in the context of this plea alleging that the contested decision is unlawful on the ground that it was adopted following a selection procedure must be rejected.

64      In the second place, the applicant claims that EUIPO unlawfully restricted its discretion, first, by limiting the reference number of second renewals to five contracts, whereas 20 members of the temporary staff were concerned, and secondly, by undertaking, in accordance with the EUIPO Strategic Plan 2020 of 20 January 2016, to respect a fixed proportion between staff with a permanent position and staff with a fixed period contract. In setting that fixed proportion, EUIPO could not have taken into account the merits of each case, which constitutes a manifest error of assessment.

65      The applicant refers to the extract from the EUIPO Strategic Plan 2020 according to which:

‘In order to maintain the necessary flexibility to deal with fluctuations in workload and any new responsibilities, the [EUIPO] will continue to hire [t]emporary [a]gents and [c]ontract [a]gents, engaged for a fixed period. To ensure this flexibility, the [EUIPO] is committed to respect a certain proportion in the workforce composition which historically corresponds to a proportion of 70% staff with a permanent position and 30% of staff with a fixed period contract, always bearing in mind the need to retain talent and taking advantage of all the possibilities allowed for under the Staff Regulations.’

66      It should be recalled that it is apparent from the analysis of the first plea that the reference number of second renewals is purely indicative.

67      Furthermore, it should be noted that section 3.2 of the Management Framework provides, in accordance with the Strategic Plan 2020, that, in order to ensure the necessary flexibility, a ratio of 70% — 30% between permanent and non-permanent staff will serve as an indicative reference for the composition of the workforce for a period of five years. That section of the Management Framework indicates that, in November 2015, members of the permanent staff of EUIPO represented 66% of the workforce.

68      The applicant cannot therefore claim that this ratio constitutes a fixed proportion.

69      It follows that this ratio and the reference number of second renewals are purely indicative and leave a sufficient margin of appreciation to the AACC to determine on a case-by-case basis which members of the temporary staff are eligible for a second renewal of their contract in the interest of the service.

70      The applicant has therefore not established the existence of a manifest error of assessment.

71      In the third place, the applicant claims that, contrary to what is allegedly provided for in the EUIPO Strategic Plan 2020, she did not get potential access to EU pension rights, as she lacked 2 years to complete the required 10 years. EUIPO has invested in the training of the applicant, with the result that by refusing to renew her contract, EUIPO would not benefit from its investment. In the contested decision, EUIPO did not take into account that, from that point of view, the renewal of the applicant’s contract would be in the interest of the service.

72      In that regard, it should be noted that the extract of the Strategic Plan 2020 referred to by the applicant provides:

‘As one of the first acts under the new staff policy, the length of temporary [staff] contracts was potentially doubled, moving from the previous system of 3-year contracts with a possible 2-year extension to 5-year contracts with a possible extension for another 5 years, subject to the needs of [EUIPO] and the performance of the [member of the temporary staff]. This provides improved contractual stability for the staff members affected and potentially grants them access to an EU pension. The reduced turnover among temporary [staff] also means that [EUIPO] is able to benefit more fully from the investment it makes in training new staff members’.

73      It follows that the Strategic Plan 2020 merely stated that the increase in the duration of the temporary staff contracts had, on the one hand, enabled some of them to obtain an EU pension and, on the other, resulted in EUIPO benefitting more from its investment in the training of those members of staff.

74      The applicant cannot claim that it follows from this Strategic Plan 2020 that members of the temporary staff were entitled to a ten-year contract period and an EU pension, nor that the investment made in her training would justify the renewal of her contract.

75      In the fourth place, the applicant claims that the budgetary post she occupied did not end with the end of her contract and that there was therefore no budgetary necessity not to renew it.

76      The applicant does not explain how such a consideration would be relevant with regard to the legality of the contested decision, which concerns the non-renewal of her contract as a member of the temporary staff and not the discontinuation of a budgetary post.

77      The fact that the budgetary post which the applicant occupied remains does not automatically mean that EUIPO had to renew her temporary staff contract for an indefinite period where the AACC considered that this was not in the interest of the service.

78      In the fifth place, the applicant considers that the references, in section 3.5 of the Management Framework, to a ‘need for a reasonable level of staff renewal’ and, in section 3 of the Guidelines, to the ‘indicative reference ratio of 70% — 30% between permanent and non-permanent staff, in order to ensure sufficient flexibility in the workforce’ do not represent a concrete analysis of the interest of the service having regard to the renewal of her contract. EUIPO’s argument that it would only proceed to a second renewal of a temporary staff contract if there were exceptional elements justifying a derogation from the ‘staff turnover necessary’ is, it is claimed, unlawful. The justification of the ‘staff turnover necessary’ by a ‘sufficient flexibility’, set out in section 3.2 of the Management Framework, is incorrect in so far as any temporary staff contract for an indefinite period could be terminated on the ground of a real reduction in the workload.

79      It should be noted that, by those arguments, the applicant essentially seeks to call into question EUIPO’s workforce management policy as defined in the Management Framework.

80      However, it suffices to note that it is apparent from the case-law cited in paragraph 57 above that EUIPO has wide discretion in organising its services according to the tasks entrusted to it.

81      Under this wide discretion, EUIPO could therefore define the principles governing the workforce management. Among those principles is that referred to in section 2.2 of the Management Framework, according to which ‘there is a need for temporary staff, providing flexibility in order to adapt the workforce to the fluctuations of the market, generating variations in terms of increase or decrease in the activities of EUIPO’. That principle is implemented in section 3.2 of the Management Framework, which provides for the establishment of an indicative ratio to ensure the required flexibility, which is referred to again in section 3 of the Guidelines. Another principle referred to in section 2.5 of the Management Framework states that ‘there is a need for a reasonable level of turnover’.

82      Furthermore, it should be noted that the applicant does not specify which provision renders unlawful the choice of EUIPO to derogate from the principles it has laid down in the Management Framework, in particular the principle relating to the necessary staff turnover, only in the event that the profile of the member of the temporary staff concerned presents exceptional elements.

83      Moreover, the fact that, in the contested decision, the AACC recalled the principle of necessary staff turnover does not exclude that it also carried out a specific analysis of the interest of the service in relation to the applicant, in particular in the light of the criteria laid down in the Guidelines, such as the applicant’s performance.

84      As for the argument that flexibility could be ensured by other means, namely the dismissal of a member of the temporary staff with a contract for an indefinite period, it suffices to note that it cannot be accepted. As EUIPO observes, it is not for the applicant to substitute her assessment for that of EUIPO as to whether the renewal of her contract was in the interest of the service, nor to define the workforce management policy of EUIPO.

85      In the sixth place, the applicant claims that EUIPO’s argument in the decision rejecting the complaint, according to which exceptional elements would be required to justify the renewal of a temporary staff contract, cannot be accepted in the light of the Annex 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) and Article 30 of the Charter of Fundamental Rights of the European Union, according to which an employment contract for an indefinite period should be the rule.

86      The applicant contests the assessment in the decision rejecting the complaint, according to which, after an assessment of all the elements, the AACC did not consider that the applicant’s profile constituted a profile in the field of intellectual property with special elements justifying an exception to the principles of EUIPO’s workforce management policy, as defined in the Management Framework. In the contested decision, it is stated that the applicant’s profile did not present exceptional elements justifying derogation from the necessary turnover to ensure the required reasonable level of staff renewal of EUIPO.

87      However, it should be noted, first, that Article 30 of the Charter of Fundamental Rights of the European Union provides that ‘[e]very worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices’.

88      That article therefore does not concern the use of successive fixed-term contracts, but the unfair dismissal of a worker. However, the termination of a fixed-term contract simply because it has reached its expiry date does not constitute unfair dismissal (judgment of 27 November 2012, Sipos v OHIM, F‑59/11, EU:F:2012:164, paragraph 98).

89      It therefore suffices to note that this article is not relevant in the present case since the applicant has not been the subject of a dismissal.

90      Secondly, even if Directive 1999/70 were applicable in the present case, the paragraph in the preamble to the framework agreement on fixed-term work annexed to the Directive, cited by the applicant, states that the parties to that agreement ‘recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers’.

91      In that regard, it is apparent from the case-law that the framework agreement starts from the premiss that indefinite employment contracts are the general form of employment relationship, while acknowledging that fixed-term employment contracts are a characteristic of employment in certain sectors or for certain occupations and activities (see paragraphs 6 and 8 of the general considerations in the framework agreement) (judgments of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 61, and of 28 February 2018, John, C‑46/17, EU:C:2018:131, paragraph 39).

92      The Court also held that, since clause 5 of the framework agreement neither lays down a general obligation on the Member States to provide for the conversion of fixed-term employment contracts into contracts for an indefinite duration nor prescribes the precise conditions under which fixed-term employment contracts may be used, it gives Member States a margin of discretion in the matter (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 32; see, to that effect, judgment of 4 July 2006, Adeneler and Others, C‑212/04, EU:C:2006:443, paragraph 91).

93      Therefore, even if the framework agreement were applicable to EUIPO, the applicant could not claim that the assessment of the AACC in the decision rejecting the complaint constituted an infringement of the latter.

94      Furthermore, it should be recalled that, in section 3.2 of the Management Framework, EUIPO sets an indicative reference ratio of 70% permanent staff to 30% non-permanent staff and that, in November 2015, members of the permanent staff of EUIPO represented 66% of the workforce. Accordingly, it can be considered that contracts for an indefinite period are also the general rule at EUIPO.

95      In the seventh place, the applicant submits that EUIPO failed in its duty to have regard for the welfare of staff.

96      First, the applicant claims that it follows from her previous arguments that the elements put forward by EUIPO in the contested decision to establish the interest of the service were not valid. In accordance with the duty to have regard for the welfare of staff, her interest must therefore prevail over the absence of a valid interest of the service and the contested decision is thus vitiated by a manifest error of assessment.

97      It suffices to note that it follows from the foregoing that the applicant’s arguments were rejected and that the applicant cannot therefore claim that she has demonstrated the absence of a valid interest of the service.

98      Secondly, the applicant claims that EUIPO did not express any criticism of her performance or skills and merely found that they were not sufficiently ‘exceptional’, which was not a valid argument. She claims that it is not apparent from the contested decision that EUIPO weighed her personal situation against the alleged interest of the service not to renew her contract. In the contested decision, it is claimed, the AACC did nothing but repeat her submissions and give assurances that they were taken into account. EUIPO thus failed to fulfil its duty to have regard for the welfare of staff.

99      It should be recalled that it follows from the case-law cited in paragraphs 59 and 60 above that the duty to have regard for the welfare of staff requires the AACC to balance the interests of the service and the interests of the staff member and that this is reflected in the obligation of that authority to state the reasons which led it to ensure that the interests of the service prevail in the grounds for the decision not to proceed with the renewal.

100    It must also 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 judgment of 3 May 2018, SB v EUIPO, T‑200/17, not published, EU:T:2018:244, paragraph 76 and the case-law cited).

101    Furthermore, if, by virtue of its duty to have regard for the welfare of its employees, the competent authority is required, when assessing the interest of the service, to take into consideration all the factors which may affect its decision, in particular the interests of the staff member concerned, that taking into consideration of the personal interests of that staff member does not extend so far as to prevent that authority from not renewing a fixed-term contract despite the opposition of that staff member, if the interests of the service demand it (judgments of 27 November 2008, Klug v EMEA, F‑35/07, EU:F:2008:150, paragraph 79, and of 10 September 2014, Tzikas v ERA, F‑120/13, EU:F:2014:197, paragraph 93).

102    It should be noted that, in the contested decision, the AACC stated that it had taken into account all the elements put forward by the applicant in her expression of interest of 25 May 2017, namely her professional experience in various departments of EUIPO, her organisational and linguistic skills, in particular with respect to German, and her motivation to develop her professional and personal skills at EUIPO. The AACC stated that all those elements had been taken into account in the assessment of the applicant’s performance in the appraisal exercise.

103    The AACC considered, however, that those elements did not constitute a profile in the field of intellectual property with exceptional elements which could justify derogating from the turnover necessary to ensure the needed reasonable level of staff renewal of EUIPO.

104    The AACC added that the personal aspects mentioned by the applicant in her expression of interest relating to her daughter and her professional future had also been taken into account.

105    Furthermore, in the decision rejecting the complaint, the AACC pointed out that, pursuant to section 3.2 of the Guidelines, the decision on the renewal of the contracts for an indefinite period had to be adopted in view of the interests of the service, while respecting the duty of care towards staff members. The AACC also recalled that, with regard to the needs and interests of the service, among other elements to be taken into account, the key criterion for the interest of the service was the performance of the member of the temporary staff, assessed having regard to her efficiency, conduct in the service and her skills and abilities over the duration of her contract, as well as her profile, compared with the job requirements of the needs identified in the service.

106    Contrary to what the applicant claims, it is apparent from the contested decision that the AACC did in fact take into account the elements establishing the professional performance and personal situation which she had referred to in her expression of interest. That is confirmed, moreover, by the details of the applicant’s professional experience and personal situation contained in the decision rejecting the complaint. The applicant does not mention in the application any specific elements that were ignored by the AACC when assessing her performance or personal situation.

107    Accordingly, it is clear from the contested decision and the decision rejecting the complaint that the AACC took into account, on the one hand, the needs of the service and, on the other hand, the applicant’s personal situation. The AACC therefore balanced the interests of the service and the applicant’s interests, in accordance with the case-law cited in paragraphs 58 and 59 above.

108    Furthermore, it should be noted that the applicant does not claim that the AACC committed an error in the assessment of her professional skills or personal situation.

109    She merely claims that the fact that the AACC considered them not to be exceptional is not a valid argument.

110    In that regard, it suffices to recall that it is apparent, inter alia, from paragraphs 79 to 82 above that EUIPO may decide, under its wide discretion, to derogate from the principles it has laid down in the Management Framework, in particular the principle relating to the necessary staff turnover, only in the event that the profile of the member of the temporary staff concerned presents exceptional elements.

111    The AACC thus justified on what ground it considered that the renewal of the applicant’s contract for an indefinite period was not in the interest of the service.

112    It is apparent from the above that the applicant has not established that EUIPO infringed the duty to have regard for the welfare of staff.

113    The second plea in law must therefore be rejected.

 The third plea, alleging infringement of Articles 27(1) and (2)(b) of Regulation (EC) No 45/2001

114    The applicant claims that she was the subject of a selection procedure to assess her performance. Since that procedure was not subject to prior checking by the European Data Protection Supervisor (EDPS) in accordance with Article 27(1) and (2)(b) of Regulation No 45/2001, it is therefore unlawful, as is the contested decision.

115    EUIPO contends that since that plea was not raised at the administrative complaint stage, it is inadmissible under the rule of correspondence between the application and the complaint.

116    In that regard, it should be recalled that, in accordance with established case-law, the rule requiring consistency between the complaint, within the meaning of Article 91(2) of the Staff Regulations, and the subsequent application requires, on a pain if inadmissibility, that a plea raised before the Courts of the European Union has already been raised in the context of the pre-litigation procedure, so that the AACC has been in a position to know the criticisms which the person concerned formulates against 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; judgment of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 45).

117    That rule is justified by the very objective of the pre-litigation procedure, which is to permit an amicable settlement of the differences which have arisen between officials and the administration (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 72 and the case-law cited; judgment of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 46).

118    It follows that, as has consistently been held, in civil service actions, the form of order sought before the Courts of the European Union can contain only heads of claim based on the same matters as those forming the basis of the heads of claim put forward in the complaint, although those heads of claim may be developed before the Courts of the European Union by pleas and arguments which do not necessarily appear in the complaint but must be closely linked to it (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 73 and the case-law cited; judgment of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 47).

119    Furthermore, it should be pointed out, first, that since the pre-litigation procedure is informal in character and those concerned are acting without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but must, on the contrary, examine them with an open mind and, secondly, it is not the purpose of Article 91 of the Staff Regulations to bind strictly and absolutely the contentious stage of the proceedings, if any, provided that the action changes neither the legal basis nor the subject matter of the complaint (see judgment of 25 October 2013, Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 76 and the case-law cited; judgment of 27 October 2016, ECB v Cerafogli, T‑787/14 P, EU:T:2016:633, paragraph 36).

120    However, the fact remains that, according to established case-law, in order for such a pre-litigation procedure, provided for in Article 91(2) of the Staff Regulations, to be capable of achieving its objective, it is necessary for the AACC to be in a position to know in sufficient detail the criticisms which those concerned make of the contested decision (see judgment of 25 October 2013 in Commission v Moschonaki, T‑476/11 P, EU:T:2013:557, paragraph 77 and the case-law cited; judgment of 27 October 2016, ECB v Cerafogli, T‑787/14 P, EU:T:2016:633, paragraph 37).

121    It should be noted that, in her complaint, the applicant claimed that the contested decision was based on a selection procedure without legal basis, that her professional experience, knowledge in the field of intellectual property, linguistic skills and personal situation had not been sufficiently taken into account and that the contested decision was contrary to the policies formulated in EUIPO’s 2015 and 2020 strategic plans.

122    It must be noted that, in her complaint, the applicant did not raise any argument concerning an infringement of the provisions of Regulation No 45/2001 or relating to the processing of her personal data that could have vitiated the procedure which led to the adoption of the contested decision.

123    Accordingly, the arguments raised in the third plea were not included in the complaint and are not closely related to any of the heads of claim raised in the complaint, in breach of the rule of correspondence.

124    It should be added, in that regard, that the complaint does not contain any clear and precise element allowing it to be interpreted, even in a spirit of generous interpretation, as referring to a complaint alleging infringement of Regulation No 45/2001.

125    Consequently, since the arguments raised in the third plea have not been invoked, even implicitly, in the pre-litigation procedure, they cannot be raised for the first time before the Courts of the European Union.

126    Therefore, it must be held that the third plea is inadmissible.

127    In any event, as EUIPO contends, that plea is unfounded.

128    It should be borne in mind that, according to the case-law, a procedural irregularity may lead to the annulment of the contested decision only if it is shown that that procedural irregularity could have had an influence on the content of the decision (see judgment of 22 March 2018, HJ v EMA, T‑579/16, not published, EU:T:2018:168, paragraph 55 and the case-law cited).

129    Furthermore, according to the case-law, it does not follow from any provision of Regulation No 45/2001 that infringement of the rights that it guarantees automatically has a bearing on the legality of acts adopted by the institutions and bodies of the European Union (judgment of 22 November 2017, HD v Parliament, T‑652/16 P, not published, EU:T:2017:828, paragraph 34).

130    Therefore, even assuming that prior checking by the EDPS is provided for in the procedure leading to the adoption of the contested decision, the applicant does not explain how the absence of such a check affects the content of the contested decision.

131    The third plea in law must, therefore, be rejected.

 The fourth plea, alleging breach of the principle of equal treatment

132    The applicant claims that EUIPO breached the principle of equal treatment by treating her in the same way as other members of the temporary staff whose contracts ended several months before or after hers in 2018. She submits that, under the principle of equal treatment, a decision should have been adopted within the same period of time, namely three months before the end of each contract.

133    According to the case-law, there is a breach of the principle of equal treatment, applicable to the law of the European Union civil service, where two categories of persons whose factual and legal situations are not essentially different are treated differently or where different situations are treated in an identical manner, unless such treatment is objectively justified (judgment of 6 September 2018, Piessevaux v Council, C‑454/17 P, not published, EU:C:2018:680, paragraph 78; see also judgment of 7 June 2018, Winkler v Commission, T‑369/17, not published, EU:T:2018:334, paragraph 59 and the case-law cited).

134    It must also be pointed out that, on the one hand, it is not required that the situations be identical, but only that they be comparable and that, on the other hand, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner, in the light of the subject matter and purpose of the regulation at issue (see, to that effect, judgments of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraph 57 and the case-law cited, and of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 43).

135    First, although the applicant does not explain precisely what she means by the allegation that she was treated in the same way as other members of the temporary staff whose contracts ended several months before or after her own in 2018, the Court understands this argument as challenging the fact that EUIPO invited all temporary staff whose contracts ended in 2018 to express their interest in a second renewal of their contracts on the same date.

136    In that regard, it should be recalled that it follows from section 3.1 of the Guidelines and section 3.4 of the Management Framework, cited in paragraphs 37 and 38 above, that EUIPO is to contact members of the temporary staff, whose second contract is due to expire, during the second quarter of the year preceding the expiry of their contract, in order to identify staff interested in a renewal of their contract for an indefinite period.

137    It is apparent from paragraphs 41 and 42 above that the setting of a deadline for the expression of interest, identical for all members of the temporary staff whose second contract expires in the same year, regardless of the month, in the second quarter of the previous year, is justified in the light of the objectives of flexibility and budgetary predictability.

138    It must therefore be considered that, contrary to what the applicant claims, all members of the temporary staff whose second contract expires in the same year are in an objectively comparable situation with regard to the objectives pursued by the Management Framework and that the fact that EUIPO asks them to express their interest in renewing their contract in the second quarter of the previous year does not constitute a breach of the principle of equal treatment.

139    Furthermore, it should be noted that the launch of the procedure for renewing the second contracts of temporary staff during the same quarter of the year preceding the expiry of those contracts does not mean that all decisions concerning the renewal or non-renewal of the contracts of temporary staff who have expressed their interest will be adopted on the same date, which the applicant does not claim.

140    Moreover, the applicant does not explain what impact on the examination of her individual situation would result from the fact that all members of the temporary staff whose second contract expired in 2018 were contacted by EUIPO in the second quarter of 2017 to express their interest in the renewal of their contract, or how she was penalised compared to other temporary staff whose contracts expired several months before or after her own.

141    Secondly, it should be recalled that, in the present case, the applicant’s contract expired on 30 June 2018, she was invited to express her interest in the renewal of her contract on 11 May 2017 and the decision not to renew her contract was adopted on 6 October 2017.

142    The procedure was thus in line with section 3.4. of the Guidelines which provides that the HRD shall notify the decision of the AACC on the renewal or non-renewal of the contract for an indefinite period at least three months before expiry of the second contract.

143    The applicant does not explain why the application of the principle of equal treatment would imply that the decision not to renew her contract should have been taken three months before the expiry of her contract and not, as in the present case, more than six months before.

144    As regards the applicant’s argument that, if the decision on the renewal of her contract had been taken three months before its expiry, she would have had a greater chance of obtaining a contract for an indefinite period, for example after the recruitment of members of the temporary staff as officials, it is sufficient to note that this is a mere assertion not supported by any evidence.

145    In that regard, EUIPO notes that recruiting a greater number of officials does not automatically mean that posts are vacant for contracts for an indefinite period, but, on the contrary, may limit the possibility for members of the temporary staff to benefit from contract renewal for an indefinite period, as these are included in the indicative reference ratio of 70% for permanent staff, set out in the EUIPO Strategic Plan 2020.

146    It follows that the applicant has not established that there has been a breach of the principle of equal treatment and that, accordingly, the fourth plea must be rejected.

147    It follows from all the foregoing that the action must be dismissed.

 Costs

148    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.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders WP to pay the costs.

Delivered in open court in Luxembourg on 7 May 2019.

*      Language of the case: English.

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