1

By his appeal brought pursuant to Article 9 of Annex I to the Statute of the Court of Justice of the European Union, the appellant, José Luis Ruiz Molina, seeks to have the judgment of the European Union Civil Service Tribunal (Third Chamber) of 2 March 2016, Ruiz Molina v OHIM (F‑60/15, the‘judgment under appeal’, EU:F:2016:28) set aside. By that judgment, the Civil Service Tribunal dismissed his claim for annulment of the decision of the Executive Director of EUIPO of 4 June 2014 to terminate his temporary staff contract on the expiry of six months’ notice.

2

The background to the dispute is set out in the following terms in paragraphs 13 to 29 of the judgment under appeal:

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3

By application lodged at the Registry of the Civil Service Tribunal on 22 April 2015, the appellant brought an action, registered under case reference F‑60/15, seeking the annulment of the decision of the Executive Director of EUIPO of 4 June 2014 to terminate his temporary staff contract upon the expiry of six months’ notice.

4

By the judgment under appeal, the Civil Service Tribunal dismissed the action and ordered the appellant to pay, in addition to his own costs, half of those incurred by EUIPO.

5

First of all, the Civil Service Tribunal observed that ‘the reinstatement protocol [which EUIPO and the applicant had signed on 1 December 2011] provided for the reinstatement of the applicant to his position under the temporary staff contract, as amended on 1 June 2005, in the grade and step which he had held on the date on which that contract was terminated, or in other words the evening of 15 September 2009’ and that, by that protocol, EUIPO ‘agreed to reconstitute the career of the applicant as from that same date, and to pay him the difference between what he would have received between 16 September 2009 and 30 November 2011, if his contract had not been terminated, and what he actually received during that period’. It held that ‘in those circumstances, as is apparent from the express terms of Article 1 [of the protocol], the decision of 12 March 2009 must be regarded as having been withdrawn by the protocol, with the applicant being retroactively restored to the performance of his temporary staff contract, as amended on 1 June 2005, as from the date on which the termination decision had taken effect, or in other words the evening of 15 September 2009’. The Tribunal therefore held that ‘since the applicant’s temporary staff contract, as amended on 1 June 2005, is properly construed … as being a first renewal of his temporary staff contract for a fixed period coming within Article 2(a) of the CEOS, the applicant cannot maintain that the contested decision infringed the first paragraph of Article 8 of the CEOS on the basis that [that protocol] constituted the second renewal of the contract between him and [EUIPO]’ (judgment under appeal, paragraph 39).

6

The Civil Service Tribunal went on to observe that ‘the framework agreement [on fixed-term work, concluded by ETUC, UNICE and CEEP on 18 March 1999 and implemented by Council Directive 1999/70/EC of 28 June 1999] does not concern the conditions for terminating fixed-term contracts or contracts of indefinite duration, but the conditions for the use of such contracts, in accordance with clause 1(b)’, and that ‘clause 5(1)(a) of the framework agreement cannot be directly relied on against the contested decision, which has neither the purpose nor the effect of renewing the applicant’s employment with [EUIPO] and which cannot therefore be, in itself, contrary to the provisions of the framework agreement’ (judgment under appeal, paragraph 45).

7

Furthermore, in relation to the contention that the reinstatement protocol signed by EUIPO and the appellant on 1 December 2011 (‘the reinstatement protocol of 1 December 2011’) was unlawful, in that it was contrary to the provisions of the ETUC-UNICE-CEEP framework agreement on fixed-term work, concluded on 18 March 1999 and implemented by Council Directive 1999/70/EC of 28 June 1999 (OJ 1999 L 175, p. 43) (the ‘framework agreement’), the Civil Service Tribunal pointed out that the protocol in question had restored the appellant to his position under the temporary staff contract, as amended on 1 June 2005, and that ‘that contract … is properly construed as being a first renewal of a temporary staff contract for a fixed period coming within Article 2(a) of the CEOS, effected pursuant to Article 8 of the CEOS, which is intended precisely to limit the use of successive temporary staff contracts and is among the measures, contemplated by clause 5(1) of the framework agreement, capable of preventing abuse arising from the use of successive fixed-term employment contracts or relationships’ (judgment under appeal, paragraph 46).

8

Lastly, the Civil Service Tribunal stated that ‘since the decision to terminate the applicant’s previous contract with [EUIPO] had not been annulled by the Tribunal, his reinstatement under the reinstatement protocol [of 1 December 2011] was effected on the sole initiative of the administration’, and that ‘reinstating the applicant to his position within [EUIPO] in that way, even though the employment relationship had been subject to an interruption of over two years, cannot be regarded as constituting an abuse within the meaning of clause 1(b) of the framework agreement’ (judgment under appeal, paragraph 46).

9

By a statement of appeal lodged at the Court Registry on 12 May 2016, the appellant brought the present appeal.

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17

The appellant claims that the Court should:

18

EUIPO contends that the Court should:

21

The first two grounds of appeal raised by the appellant allege, respectively, infringement of Article 8 of the CEOS and infringement of the principle of res judicata attaching to the judgment of 15 September 2011, Bennett and Others v OHIM (F‑102/09, EU:F:2011:138).

24

The first two grounds call for consideration of whether the Civil Service Tribunal erred in holding that the termination decision of 12 March 2009 had been withdrawn, and whether the Tribunal was correct in its assessment of the legal consequences flowing from such withdrawal.

25

The first issue for consideration is whether it was legally possible to withdraw the termination decision of 12 March 2009.

26

As to this, first, it is apparent from the case-law that the retroactive withdrawal of an administrative legal measure which has conferred individual rights or similar benefits is contrary to the general principles of law (see, to that effect, judgments of 22 September 1983, Verli-Wallace v Commission, 159/82, EU:C:1983:242, paragraph 8, and of 5 December 2000, Gooch v Commission, T‑197/99, EU:T:2000:282, paragraph 52).

27

Secondly, in relation to illegal administrative acts, it must be borne in mind that, according to settled case-law, it follows from the general principles of EU law that the administration is, as a rule, empowered to revoke, with retroactive effect, favourable administrative acts adopted unlawfully (see, to that effect, judgments of 20 November 2002, Lagardère and Canal+ v Commission, T‑251/00, EU:T:2002:278, paragraphs 138 to 140, and of 15 April 2011, IPK International v Commission, T‑297/05, EU:T:2011:185, paragraph 118), but that the retroactive withdrawal of an act which has created rights in favour of the person to whom it is addressed is generally subject to very strict conditions (see, to that effect, judgment of 9 March 1978, Herpels v Commission, 54/77, EU:C:1978:45, paragraph 38). While it must be acknowledged that any EU institution which finds that a measure which it has just adopted is tainted by illegality has the right to withdraw that measure within a reasonable period, with retroactive effect, that right may be restricted by the need to respect the legitimate expectations of a beneficiary of the measure, who has been led to rely on the lawfulness thereof (judgments of 26 February 1987, Consorzio Cooperative d’Abruzzo v Commission, 15/85, EU:C:1987:111, paragraphs 12 to 17; of 20 June 1991, Cargill v Commission, C‑248/89, EU:C:1991:264, paragraph 20, and of 17 April 1997, de Compte v Parliament, C‑90/95 P, EU:C:1997:198, paragraph 35). Such a decision is also subject to the condition that it does not infringe the principle of legal certainty (see, to that effect, judgment of 5 March 2003, Ineichen v Commission, T‑293/01, EU:T:2003:55, paragraph 91).

28

Thirdly, it essentially follows from the judgment of 16 December 2010, Athinaïki Techniki v Commission (C‑362/09 P, EU:C:2010:783, paragraph 59), that the strict conditions which, under the judgments of 9 March 1978, Herpels v Commission (54/77, EU:C:1978:45), of 26 February 1987, Consorzio Cooperative d’Abruzzo v Commission (15/85, EU:C:1987:111), and of 17 April 1997, de Compte v Parliament (C‑90/95 P, EU:C:1997:198), attach to the retroactive withdrawal of an illegal administrative act creating individual rights are not relevant where the act in question does not, vis-à-vis the person to whom it is addressed, constitute an act giving rise to rights, but an act adversely affecting him.

29

In the light of that case-law, the General Court considers that there is nothing to prevent the withdrawal of an illegal or legal administrative act which, vis-à-vis the person to whom it is addressed, is principally an act adversely affecting him and incidentally creates rights in his favour, provided that the legitimate expectations of that person are not interfered with and the principle of legal security is not infringed.

30

In the present case, it must be held that the termination decision of 12 March 2009 was principally an administrative act adversely affecting the appellant and that it incidentally created rights in his favour.

31

Furthermore, by signing the reinstatement protocol of 1 December 2011, the appellant signalled his acceptance of the withdrawal of the termination decision of 12 March 2009 and, consequently, the withdrawal in question operated in conformity with the principles, referred to in paragraph 27 above, of the legitimate expectations of the appellant and of legal certainty. In this regard, Article 1 of that protocol indicates unambiguously that that decision had been withdrawn.

32

The Civil Service Tribunal was accordingly correct to hold, in paragraph 39 of the judgment under appeal, that the termination decision of 12 March 2009 had been withdrawn by the reinstatement protocol of 1 December 2011.

33

The second issue for consideration, given that the withdrawal of the termination decision of 12 March 2009 was legally possible, is whether the Civil Service Tribunal erred in its assessment of the legal consequences of that withdrawal.

34

As to this, first, it must be observed that, once withdrawn, the termination decision of 12 March 2009 was deemed never to have existed. The Civil Service Tribunal was thus correct in law to hold, in paragraph 39 of the judgment under appeal, that the appellant had been retroactively restored to the performance of his temporary staff contract, as amended on 1 June 2005, with effect from 15 September 2009. In this regard, the provisions of the reinstatement protocol of 1 December 2011 merely effect the reinstatement of the appellant to the position which he had been in prior to 15 September 2009.

35

Secondly, the Civil Service Tribunal held, in paragraph 39 of the judgment under appeal, that the appellant’s temporary staff contract, as amended by the modifying addendum of 1 June 2005, had to be construed as being a first renewal of a temporary staff contract for a fixed period coming within Article 2(a) of the CEOS, and rejected the argument that the reinstatement protocol of 1 December 2011 had constituted the second renewal of that contract.

36

The Civil Service Tribunal’s reasoning on those points does not involve any error of law. As stated in paragraph 33 above, the withdrawal of the termination decision of 12 March 2009, effected by the reinstatement protocol of 1 December 2011, operated to restore the appellant to the position which he had been in prior to 15 September 2009, and not to place him in a position which he had not been in before that date, nor, therefore, to effect a second renewal of his fixed-term contract.

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On those grounds,

THE GENERAL COURT (Appeal Chamber)

hereby: