C-43/59

JUDGMENT OF 15.7.1960 — JOINED CASES 43, 45 AND 48/59

In Joined Cases 43/59 and 48/59 brought respectively by

MISS EVA VON LACHMÜLLER and MR ROGER EHRHARDT , represented and assisted by Marc-Antoine Pierson, Advocate at the Cour d'Appel, Brussels, with an ad­ dress for service in Luxembourg at the Chambers of Paul Beghin, 9 avenue de la Gare,

45/59 brought by

MR BERNARD PEUVRIER , represented and assisted by Jean Nadd, Advocate at the Paris Bar with an address for service in Luxembourg at the Chambers of Georges Margue, 6 rue Alphonse-Munchen,

applicants, v

Commission of the European Economic Community , represented by Paul

payment of damages,

as regards Case 45/59,

for payment of damages

THE COURT

composed of: A. M. Donner, President, L. Delvaux President of Chamber, R. Rossi (President of Chamber and Judge-Rapporteur), O. Riese and Ch. L. Hammes, Judges,

Advocate-General: K. Roemer

JUDGMENT OF 15.7.1960 — JOINED CASES 43, 45 AND 48/59

completed by decisions of 18 August and 29 should: 'rule that the applicant has the gra­ September; de and the category corresponding to his university education and professional expe­ rule that the applicant was engaged by the rience as a lawyer', claims that the Court defendant on 13 September 1958 as a trans­ should: lator; Declare the application admissible; rule that the engagement of the applicant created the legal relationship of a contract of Declare that it is well-founded; employment under public law as between herself and the defendant; Accordingly:

rule that the said engagement was for an In the first place unlimited period and could only be brought to an end by resignation, retirement in the annul the decision whereby the opposite interests of the service, dismissal for incom­ party dismissed the applicant, which deci­ petence, removal from post or retirement; sion was notified to him on 18 August 1959 and completed by the decision of 29 Sep­ Alternatively tember;

rule that the defendant has committed a rule that the applicant was engaged in Oc­ wrongful act not only in dismissing the ap­ tober 1958 by the defendant as a translator; plicant in the circumstances of the case but also in employing her in its service thereby rule that the engagement of the applicant giving her the reasonable expectation that created the legal relationship of a contract of she would be employed on a permanent employment under public law as between basis; himself and the defendant;

rule that, even if there be no wrongful act rule that the said engagement was for an on the part of the defendant, the applicant unlimited period and could only be brought had a reasonable expectation at law that in to an end by resignation, retirement in the the circumstances of the case her employ­ interests of the service, dismissal for incom­ ment would be continued; petence, removal from post or retirement;

As a further alternative Accordingly, reject the applicant's claim both as regards the compensation for mate­ should the Court decide that the engage­ rial and non-material damage and as re­ ment of the applicant created the legal rela­ gards the compensation for dismissal; tionship of a contract of service: order him to bear the costs. rule that he is entitled to compensation equal to three years' emoluments and order II — Facts the defendant to pay the same to him; The facts may be summarized as follows: order the defendant, in addition, to bear the costs. The applicants were recruited by the Com­ mission to the Translation Service at diffe­ The applicant in Case 45/59, having with­ rent times and in different circumstances: drawn, in his reply, his claim that the Court should annul the decision to dismiss him, Miss Eva von Lachmuller and Mr Roger claims that the Court should: Ehrhardt were recruited on 13 September and 8 October 1958 respectively on a basis Declare the application admissible; agreed orally. During the whole length of their service they were remunerated by a rule that the abovementioned decisions daily allowance of FB 950 which they re­ were adopted against him under irregular ceived, in the form of advances, as 'expert's conditions and, accordingly, rule that those allowance'. measures have had adverse effects for which he is entitled to compensation; Mr Bernard Peuvrier received a telegram from the Commission on 19 June 1958 ask­ Accordingly, award him, against the Euro­ ing him if he could commence his services pean Economic Community: as an 'auxiliary' on 23 June 1958, and took up his duties on that same date, without 1. compensation equal to two years' emo­ any written engagement. His remuneration luments; ' was fixed on the basis of an annual salary.

'I regret to inform you that your duties as an from the beginning, they were subject to auxiliary translator at the Commission of conditions of service in a way which would the European Economic Community will be inconceivable in the case of officials ap­ cease on 31 August 1959. pointed to non-permanent posts; Yours faithfully ...' they had to keep regular working hours; The period of notice was extended to 30 September 1959 by letter of 18 August 1959 they had to submit to a medical examina­ and to 31 October 1959 by letter of 29 Sep­ tion by the Commission's appointed medi­ tember 1959. cal officer;

LACHMÜLLER v COMMISSION

ned were in the service of the Community. the latter, by reason of the stable character of their employment, do not have the right Finally, as to. the argument that the appli to draw, as it were, 'danger money' against cant in Case 45/59, by reason of having re dismissals which are always possible and mained in the service for more than a year, legal. cannot be considered as an auxiliary for the purposes of the 'Conditions of Engagement The defendant argues that the conditions of of Auxiliary Staff in force in the EEC, the engagement and of employment of the ap defendant answers that the contract of en plicants do not display the features typical gagement of the applicant was not for a pe

it points out: for a period identical to the period specified on engagement, the defendant must give that no decision to make an appointment in him notice expiring at the earliest on 27 conformity with the procedure followed for June 1960. the engagement of servants appointed to a permanent post was taken as regards the On the basis of the foregoing considera applicants; tions, the defendant contends that the legal relationship which existed between the par that the appropriate letter of appointment ties in each of Cases 43/59,45/59 and 48/59 always addressed to the said servants was was that of a contract of service under pri not addressed to the applicants; vate law. The defendant adds that in any event, even if it be accepted that the con that the mode of remunerating the appli tract is one under public law, the applicants cants differed from that of the servants on could not on that account claim security of the strength of the establishment, since the tenure, because, until such time as the Staff necessary funds were always charged to the Regulations, provided for under Article 212 item in the budget expressly intended to of the EEC Treaty are promulgated, all staff cover expenditure arising from the remune must be engaged under contracts of limited ration of temporary staff, and the fees of duration (Article 246 (3) of the EEC Trea free-lance interpreters; ty).

Submission based on misuse of powers in gue in the alternative that the Commission's respect of the applicants wrongful act lies in their wrongful and un­ justified dismissal, and in the fact that the The applicants maintain that the Commis­ Commission had evoked and sustained in sion exercised its powers in an arbitrary them a reasonable expectation of security of manner. In support of this, the applicants in tenure and at the very least it created a se­ Cases 43/59 and 48/59 state that the defen­ rious misunderstanding for which it must dant ostensibly considered them as ser­ make reparation. vants engaged on the basis that they were liable to dismissal by giving them, purely For the purposes of evaluating the loss suf­ for its own ends, descriptions which did not fered, the applicant in Case 45/59 states: in fact reflect the true position. that he had to leave his home in Paris and The applicant in Case 45/59 states that set up home in Brussels; the manner of this even if the incompetence, which seems to move having regard to the post which had have been at the root of his dismissal, had been offered to him by the defendant, gave really existed, the administration could ne­ every indication that he was settling in per­ ver penalize him for it by putting an end to manently; a contract of employment under public law without complying with the prescribed pro­ that the speed with which the decision to cedure which was certainly not followed. dismiss him was taken, in the middle of the period when industry was on holiday, made The defendant's answer to the applicants is it extremely difficult for him to look for a that as this is a matter of temporary engage­ new post equivalent to the one that he had ment subject to termination, to which the with the EEC, especially since it was scar­ rules of private law apply, the decision to cely any use telling prospective employers dismiss them can in no way involve a mis­ about his period of service with the Com­ use of powers on the part of the administra­ mission. tion. The defendant replies that all that it has said Submission based on infringement of es­ concerning the legal nature of the contract sential procedural requirements because of of employment which subsisted between the absence of a statement of reasons. the parties is evidence enough that the ap­ plicants could not have been unaware of the On the basis of their argument that the legal temporary nature of their engagement, so relationship which has subsisted between much so that no wrongful act can possibly the parties constitutes a contract of employ­ be set up against it in respect of its treat­ ment under public law; the applicants main­ ment of them. tain that reasons should have been given for the contested decisions to dismiss them, It points out that the temporary character of and that in the absence of such reasons the the contract of employment cannot have decisions are vitiated by infringement of es­ been unknown to the applicants in Cases sential procedural requirements. 43/59 and 45/59 because:

liary Staff, where the temporary nature of ployment, it points out that at the time his employment was clearly indicated. when the applicant in Case 43/59 was dis­ missed by the Commission of the EEC she Submission based on infringement of the was on leave of absence from the High Auth­ rules of Belgian law concerning the terms of ority of the ECSC on personal grounds. contracts of service under private law The applicant in Case 45/59 states in his re­ As an additional point the applicants in Cases ply that the plain fact is that he only re­ 43/59 and 48/59 maintain that on the as­ ceived a month's notice. Admittedly, he sumption that the legal relationship which was twice given a month's extension, but subsisted between the parties arose from a those extensions, given on an exceptional contract of service under private law, the basis by administrative action have nothing three months' notice given by the defend­ in common, legally speaking, with the peri­ ant must be regarded as insufficient. od of notice of dismissal, and cannot be taken into consideration in calculating the For, they say, according to Belgian law, as­ latter. suming that it app lied to the contract, the minimum period of notice for putting an IV — Procedure end to contracts of employment carrying, as in their cases, emoluments above FB The procedure followed its normal course. 120000 per annum, must be calculated hav­ ing regard to the amount of the remunera­ By order of 12 February 1960, the Second tion, the nature of the duties, the length of Chamber decided to refer Cases 43/59, service, and the age of the person con­ 45/59 and 48/59 to the Court, pursuant to cerned. Article 95 (2) of the Rules of Procedure of the Court of Justice of the European Com­ The defendant objects that it was precisely munities. because it took those factors into account together with the applicants' need to find In the interests of the rational administra­ new employment, that it considered the tion of justice, it is considered expedient to granting of three months notice to be suffi­ cient. join the present cases as being interconnect­ ed, and to dispose of them in one and the As for the difficulty in finding other em­ same judgment.

a special and provisional set of rules. This set of rules applicable to the said ser­ vants is, since it has not been expressly determined and defined by the competent authorities, the set of rules resulting from the express or implied conditions which were a basic element in the contracts of employment of those servants as between them and the Community.

In consequence, the Court has jurisdiction to pass judgment on disputes between the Community and its servants in the present conditions and circumstances be­ cause there exists as between them a set of rules which necessarily, albeit still pro­ visionally, governs their relationship.

Furthermore, Article 173 of the Treaty lays down the general principle that 'The Court of Justice shall review the legality of acts of the ... Commission other than recommendations or opinions'. Far from conflicting with or standing in opposition to the application of Article 179 in the present cases, this principle reinforces, if it were necessary, the soundness of such application.

Therefore the proper course is to reject as unfounded the objection that Article 179 cannot be applied to the present cases because the Community has not pro­ mulgated the Staff Regulations of its servants and has not in their absence express­ ly defined the set of rules provisionally applicable pending those Regulations being drawn up. The objection must be rejected also because, as stated above, there necessarily exists a set of rules applicable to the legal relationship existing between the Community and its servants.

Again, the objection based on the different terminology (servants, officials, etc.) must also be rejected as unfounded, for it is obvious that in the present circum­ stances and pending promulgation of the Staff Regulations of Officials the word 'servant' includes all persons employed in the services of the Community.

Therefore the contracts at issue come under public law and are subject to the general rules of administrative law.

Existence of a right to security of tenure

The applicants argue that, as the legal relationship created by the contracts at issue comes under public law, it confers upon them the advantages of a set of rules pen­ ding the promulgation of Staff Regulations and gives them a reasonable expecta­ tion of permanent employment.

Therefore, the contested decisions to dismiss the applicants, in terminating that relationship, infringed the rules of law applicable to the conditions of their enga­ gement and were accordingly irregular.

This argument is unfounded.

Articel 246 (3) of the Treaty provides that, until the Staff Regulations of Officials and the Conditions of Employment of other servants of the Community provided for in Article 212 have been laid down, each institution shall recruit the staff it needs and to this end conclude contracts of limited duration.

Therefore, since the applicants have no claim whatsoever, to security of tenure, there is no point considering whether the descriptions 'expert' or 'auxiliary' accu­ rately reflect the nature of the legal relationship which existed between the parties.

In these circumstances, certain measures adopted by the Commission concerning the applicants and certain privileges which it granted to them cannot be used to lend permanence to the contracts of employment at issue since those measures and privileges cannot confer on the said contracts a tenor and meaning which are expressly prohibited by Article 246 (3) of the Treaty.

There is, consequently, no basis for the applicants' argument to the effect that the Commission, by its conduct, encouraged them to expect security of tenure and thereby committed a wrongful act.

Finally, it is not possible, in the present cases, to rely on the case-law of the Court of Justice of the ECSC, which has accepted that servants of the ECSC employed prior to the entry into force of the Staff Regulations could expect permanent em­ ployment, because, unlike Article 246 (3) of the Treaty establishing the European Economic Community, the last paragraph of Article 7 of the Convention on the Transitional Provisions does not require every contract of employment concluded before the entry into force of the Staff Regulations to be of limited duration, and does not thereby preclude the relationship whereby the employee has some secu­ rity and enjoys the expectation of the benefit of the Staff Regulations.

Statement of reasons for the decisions of dismissal

It is true that, in December 1958, Mr Lankes notified all the auxiliaries and experts employed in the Language Service, including the applicants, that it was necessary to reduce the staff of that service and that, in consequence, not all the servants could be found a place in the final establishment.

The applicants may well have understood that the termination of their contracts was undoubtedly connected in essence with that notification, but having regard to the circumstances of the case, and, above all, to the considerable time which elapsed between the notification, which was in very general terms, and the letters terminating the contracts, there was a duty to give a specific statement of reasons.

In consequence the letters terminating the contracts must be held to be insufficient.

This deficiency constitutes a contractual wrong on the part of the Commission for which it is liable.

Its liability must, in the present case, be assessed in the light of the fact that the termination of the contracts of employment has taken effect and that the Com­ mission must discharge its obligation by way of damages.

In order to assess the amount of the damage, account must be taken of the fact that although the applicants have either been reinstated in to their former posts, or have found new employment, nevertheless they have suffered direct non-

Article 2 of the said conditions provides that, for the termination of contracts for an indefinite period, the period of notice shall be calculated on the basis of one day's notice for every working day.

The contested decisions to dismiss Miss Eva von Lachmüller and Mr Bernard Peuvrier only gave them about one month's notice, when, according to the afore­ said Article 2, the period of notice ought to have been longer.

However, the period was twice extended by a month.

The decision to dismiss Mr Roger Ehrhardt gave him more than two months' notice. That period of notice of itself satisfies the requirements of the aforesaid Article 2.

Furthermore the period was extended by a month.

In view of this, and since the applicants continued to receive their emoluments until the expiry of this period, having at the same time had the opportunity of using it to seek fresh employment, the period of notice actually given by the Com­ mission to the applicants was in the region of three months.

Accordingly, it is thought fit to award costs as stated in the operative words below.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the first paragraph of Article 173, Articles 178,179,181,183,189, 190, 210, 212, 215, and 246 (3) of the Treaty establishing the EEC; Having regard to the Protocol on the Statute of the Court of Justice of the EEC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

hereby:

1. Orders the Commission of the EEC to pay the sum of FB 60000 to each. of the applicants;

2. Awards the applicants two thirds of their costs against the defendant, and orders the latter to bear its own costs;

Summary

I — Introduction 479

1. Facts 479

2. Conclusions 480

II— Admissibility of the applications 481 1. Jurisdiction of the Court 481

2. Jurisdiction to hear applications for damages 482 3. Observance of the time-limit 482

Mr President, Court will have to decide whether the dis­ Members of the Court, 2 missal of the four servants (the applicants) is open to criticism at law, and what are the This is the first time since the entry into consequences of that dismissal. The Court force of the Treaties of Rome on 1 January has joined these four applications for the 1958 that the Court of Justice has had to purposes of the report for the hearing and of consider applications brought against the the opinion. On many points, the facts and European Economic Community. These the legal relationships on which these appli­ applications concern questions related to cations are based and the purposes of the the administrative organization of the applications are identical. I shall point out Commission. In relation to this dispute, the the special features presented by each of

1 — Translated from the German. 2 — This opinion also covers Case 44/59