Temp’s claim upheld by ECJ

The European Commission failed last week to convince the European Court of Justice (ECJ) to overturn a lower court decision ordering it to pay compensation of Û92,785 to a former temporary worker who had been denied the opportunity of a permanent job.

The Commission, in its appeal, argued that the European Court of First Instance (ECFI) had "misinterpreted the concept of loss of opportunity as loss of the certainty of obtaining a post", and in so doing, failed to recognise the Commission's margin of discretion and freedom to make choices in recruitment.

The temporary staffer, Marie-Claude Girardot, had applied for several permanent jobs only to have the Commission reject her applications without giving them any consideration.

Girardot was seconded to the Commission in 1996 as a national expert from a member state. In 1999, she became a temporary staffer on a two-year contract, renewed for one year, working first at the Commission's directorate-general (DG) for industry and then at DG information society.

In 2001, Girardot applied for eight administrator positions that the Commission said it posted "with the intention of enabling temporary staff members to become permanent officials". Shortly afterwards, the Commission informed Girardot that her applications "could not be taken into consideration", since they were "open only to staff...who had been successful candidates in an open competition".

The Commission had accepted applications from other temporary staff members. These staffers were on a list created after an "internal reserve competition" in 2000 where they had scored sufficient points in a board interview. Girardot considered this grossly unfair, as her applications fulfilled the criteria in the job postings.

After unsuccessful internal complaints, Girardot's case went before the ECFI, which annulled, in a 2004 interim decision, the Commission's refusal to consider her applications, since the "Commission had not demonstrated that it had properly examined the merits of Girardot's application in relation to each of the posts in question before rejecting it".

In 2006, the ECFI followed up with a final decision setting the amount of compensation. In order to determine appropriate compensation for the loss of opportunity, the ECFI compared what Girardot might have earned if she had been hired for one of the permanent jobs and what she did earn. The court then halved the difference, reflecting that she was a strong candidate, but that she had no certainty of being hired.

The ECFI rejected Girardot's claims that the rejection had distressed her and caused a depressive syndrome. However, it did consider relevant that Girardot's loss of opportunity was irreversible, since, her contract having ended, she could no longer apply for similar positions.

The Commission appealed against these rulings to the ECJ, arguing that the lower court had committed a legal error in compensating Girardot using a formula that took account of hypothetical earnings from a job for which the employee had only applied. The Commission proposed a different compensation formula that would reduce Girardot's compensation to Û23,917. Girardot cross-appealed against the ECFI decision, arguing that the court had wrongfully ignored many of her arguments, and sought as much as Û2,687,994.

The ECJ found that while loss of opportunity is not directly linked to loss of earnings, the ECFI had properly exercised its discretionary power permitting it to determine how best to compensate the loss of opportunity. It pointed out that the Commission's own proposed method of compensating Girardot was "manifestly less suitable for determining extent [of damage]...than that adopted in the judgement under appeal".

The ECJ also rejected Girardot's cross-appeal, ruling that her repetition of arguments she had made before the ECFI, and "supposed new evidence" were inadmissible under ECJ rules and case law.

• Mike Gordon is a freelance journalist based in Luxembourg

The European Commission failed last week to convince the European Court of Justice (ECJ) to overturn a lower court decision ordering it to pay compensation of Û92,785 to a former temporary worker who had been denied the opportunity of a permanent job.

• Primary Source