C-44/59

annulment of the decisions contained in the letters addressed to the applicant by the Commission of the European Economic Community dated 24 July and 14 August 1959;

appointment of the applicant on a provisional basis in the Language Department in Grade L/C, Step 1;

damages;

THE COURT

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

Advocate-General: K. Roemer Registrar: A. Van Houtte

to be appointed on a provisional basis as to the Court if the parties fail to agree on an official or servant in the Language the amounts; Department in Grade L/C, Step 1, and that he shall receive the remuneration, order the defendant to pay FB 500 000 or allowances and privileges appropriate to 10 000 EMA units as compensation for that grade under the same conditions as non-material damage; officials and servants in the same cate­ gory engaged on a provisional basis; in the alternative, rule and require that the European Economic Commission order the Commission to pay to the appli­ shall pay to the applicant his arrears of cant: salary on the basis of FB 950 per day with effect from 1 October 1959 until he is (a) compensation equivalent to one year's actually reinstated; remuneration appropriate to Grade L/C, Step 1, in the Language Depart­ rule and require that, in accordance with ment, namely FB 400 000 Article 9 of the conditions of Engage­ ment of Auxiliary Staff, the Community (b) compensation equivalent to a year's shall retroactively insure the applicant head of household allowance appropri­ with effect from his entry into service ate to Grade L/C, Step 1, in the Lan­ either with the Caisse Régionale de guage Department, namely FB 20 000; Maladie du Luxembourg or with such other fund as may be advised against (c) compensation equivalent to a year's de­ sickness accident and surgical opera­ pendent children's allowance and edu­ tions; cation allowance appropriate to Grade L/C, Step 1, in the Language Depart­ order the amounts to be paid to the ment, estimated at FB 125 000; applicant to be reduced by those which he has already received as the result of (d) compensation equivalent to the instal­ Order No 44/59/6558 of 1 October 1960; lation allowance at present paid to offi­ cials and servants of the same category, order the European Economic Commis­ namely FB 60 000; sion to pay the whole of the costs of the case, including those for the two interim (e) reimbursement of travel expenses in­ measures and those for the examination curred by his family at the time of his of the witnesses. entry into service, namely FB 5 000; The defendant contends that the Court (0 removal expenses incurred by the appli­ should: cant at the time of his entry into service on the conditions on which they are Declare the application for annulment of paid to officials and servants in the the decision removing him from his post same category, estimated at FB 50 000; and the concomitant application for reinstatement to be unfounded; 3. Order that, on his reinstallation, the ap­ plicant shall be paid the reinstallation al­ dismiss the applicant's applications lowances on the conditions and in accor­ accordingly; dance with the rules laid down for offi­ cials and servants in the same category approve the defendant's offer to pay the and that he shall be reimbursed for his sum of FB 100 000 to the applicant; travel expenses and those of his family and his removal expenses on the condi­ dismiss the remainder of the applicant's tions and in accordance with the rules claims; laid down for officials and servants in the same category, subject to reference award costs in accordance with the law.

'I regret to have to inform you that after 31 In support of this he claims that: August 1959 the Commission of the Euro­ pean Economic Community will dispense from the beginning he was subject to con­ with your services as an expert in its Lan­ ditions of service which would be incon­ guage Service'. ceivable in the case of officials appointed to non-permanent posts; The time-limit laid down above was later extended until 30 September 1959 by letter he had to keep regular working hours; of 14 August 1959 and until 31 October 1959 by letter of 29 September 1959. he had submit to a medical examination by the Commission's appointed medical The decisions contained in the letters of 24 officer; July and 14 August are the subject of the present application, which was submitted from the beginning, he has been called on 24 September 1959. upon to discharge duties of indefinite dura­ tion and not to cope with urgent or tempor­ III — Submissions and arguments ary translation work; of the parties the Commission issued him with a certifi­ The submissions and arguments of the par­ cate enabling him to import his furniture ties may be summarized as follows: and personal effects into Belgium duty-free;

1. Admissibility he held a staff identity card.

The defendant contests the admissibility of According to the applicant, the combined the second of the main conclusions in effect of these facts is to demonstrate that which the applicant seeks an order from the the relationship between him and the Com­ Court that he should be engaged on a pro­ mission contained the essential features visional basis in the Language Department which, according to the Administrative in a specified grade. In this connexion it Tribunal of the ILO, 1 distinguish the em­ contends that the power to make appoint­ ployment relationship subsisting between

an 'international official' and his employer, necessary funds were charged to the namely, (a) the continuous devotion of his item in the budget expressly intended activities to the agency which employs him, to cover expenditure arising from the (b) the fact that his conditions of service are remuneration of temporary staff and determined by way of regulation, unilater the fees of free-lance interpreters. ally and not contractually (c) the fact that he has access ('accessibilité') to the sickness (d) the remuneration of the applicants was insurance and pension funds etc. never subject to any deduction either for contributions to the sickness fund As regards this last feature, the applicant or for the establishment of an insurance points out that, although he did not actually fund.

cial assistance'. tor's fees and expenses of confinement on the birth of his fourth child. Again, in respect of the issue of the special identity card and customs concession, the The defendant contends, first, that being defendant points out that: subject to departmental orders and to hours of work does not imply the existence in the as to the first point this was merely a doc present that 'conditions of service are deter ument for internal use which gave access to mined by way of regulation, unilaterally Community premises; and not contractually' as claimed by the ap plicant, because those conditions are also as regards the second, it must be borne in found in the employment relationship gov

In this tionship in question may be recognized as connexion it points out that: one under public law, the applicant could not on that account claim security of tenure (a) no decision to make an appointment in because, until such time as the Staff Regu conformity with the procedure followed lations provided for under Article 212 of the for the engagement of servants appoint EEC Treaty are promulgated, all staff must ed to a permanent post was taken as re be engaged under contracts of limited dura gards the applicant; tion (Article 146 (3) of the EEC Treaty).

disguise disciplinary action because it was which would provide adequate redress for no secret that his dismissal resulted from an the damage which was inflicted on him. article which he had had published in the According to the applicant, the best avail­ Amsterdam Algemeen Handetsblad of 14 able guide on this subject is Article 42 of the February 1959 and in which emphasis was Staff Regulations of the ECSC. laid on the lack of security which was the lot of the Commission's translators. The defendant replies that all that it has said concerning the legal nature of the contract The defendant emphasizes that the reason of employment which subsisted between for the applicant's dismissal was an unfav­ the parties is evidence enough that the ap­ ourable report on his vocational aptitude by plicant could not have been unaware of the the Head of the Language Service which temporary nature of his engagement, which was made well before the appearance of the means that the complaint raised by him is article, namely on 16 January 1959, and without foundation. contends that, since what was involved was temporary and casual employment subject Submission based on infringement of the to the rules of private law, the decision to rules of Belgian law concerning the terms of dismiss him can in no way involve a misuse contracts of service under private law of powers on the part of the administration.

Submission based on infringement of ess­ In the alternative, the applicant repeats ential procedural requirements because of that, on the assumption that the legal rela­ the absence of a statement of reasons tionship which subsisted between the par­ ties arose from a contract of service under

FIDDELAAR v COMMISSION

after considering the written observations evidence to the Court at the hearing on 1 of the defendant and hearing the oral obser­ October 1960. vations of the parties at the hearing on 19 October 1959. In a statement received at the Registry on 1 October 1960, the applicant claimed that By Order of 12 February 1960 the Second the Court should, as provided for under Chamber decided to refer the case to the Article 186 of the Treaty establishing the Court pursuant to Article 95 (2) of the Rules EEC, 'order the Commission of the EEC to of Procedure of the Court of Justice of the pay to the applicant as an advance on ar­ European Communities. rears of allowances or salary the sum of FB 100 000 or 2 000 u.a. or such other sum as By Order of 20 June 1960 the Court decided in equity may be determined. to call witnesses to prove the facts alleged by the applicant in support of his com­ By Order of 1 October 1960, the President of plaints of misuse of powers. the Court decided to grant, in part, the ap­ plication of the applicant and ordered the The witnesses designated by the parties for Commission of the EEC to make an inter­ this purpose were summoned by Order of im payment to the applicant of the sum of the Court of 31 August 1960 and gave their FB 60 000, costs reserved.

Grounds of judgment

Jurisdiction of the Court

it is necessary to examine whether the Court has jurisdiction to rule on the present applications. This issue was raised by the defendant during the proceedings for in­ terim measures, but it was not put forward again in the main proceedings.

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

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

Admissibility

1. In his second main conclusion, the applicant seeks a declaration from the Court that he must be treated as engaged on a provisional basis as an official or servant in the Language Department at a given step in a given grade.

The power of appointment belongs exclusively to the administration and the latter is alone competent to decide in what grade and at what step a servant may be en­ gaged. Since the Court of Justice cannot exercise this power in place of the Com­ mission the second main conclusion submitted by the applicant is inadmissible.

2. The applicant claims, in the alternative, that the defendant should be ordered to pay compensation for non-material damage.

Legal nature of the contract of employment

Under the conditions and circumstances in which the applicant was engaged by the Commission, the contract of employment concluded between the parties arises from the implied agreement between them.

The question arises whether that contract falls within public or private law.

In the present case, one of the contracting parties, the Commission of the European Economic Community, acting within the limits of the powers conferred on it by the Treaty, has legal personality as laid down by Article 210 of the Treaty. That personality is one of public law by virtue of the powers and duties appropriate to it. Consequently, the contract at issue was concluded by a person at public law.

Moreover that contract was concluded to enable the Language Service of the Commission to function properly. This service, which is responsible for ensuring that the contents of the acts of the Commission shall be identical in the four official languages of the Community, constitutes an important element in the procedure which has as its purpose the formulation in each language of those acts; thus that service is of the same public nature as the Commission itself.

Therefore, the contract at issue comes under public law and is subject to the general rules of administrative law.

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.

It follows from that provision that no relationship of employment existing between the Community and its servants before the Staff Regulations and the Conditions of Employment mentioned in Article 212 of the Treaty have been laid down, can create any permanent, legal relationship between the parties.

In consequence, staff recruited before that date cannot, on the basis of the con­ ditions on which they were engaged, lay claim to appointment to permanent posts or the benefits of the future Staff Regulations since such appointments and such benefits are in themselves inconsistent with the limited character of any employ­ ment relationship created before the entry into force of the said Staff Regulations or Conditions of Employment.

Although the contract at issue was nevertheless concluded for an indefinite period, this is explained by the impossibility, at the time when it was concluded, of entering in contracts of limited duration provided for by Article 246 (3) of the Treaty because the permanent requirements of each service could not at that time be adequately foreseen.

Since, therefore, that contract at issue belonged to a stage preceding the conclu­ sion of the contracts provided for by Article 246 (3) of the Treaty, it can on no ac­ count imply a common intention between the parties to enter into the legal rela­ tionship of a contract of permanent employment for such an intention is clearly contrary to the principle laid down in the said Article 246 (3).

Finally, it is not possible, in the present case, to reply 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 in 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 the Article 7 of the Convention on the Transitional Provisions does not require every contract of employment con­ cluded before entry into force of the Staff Regulations to be of limited duration and does not thereby preclude the relationship whereby the employee has some security and enjoys the expection of the benefit of the Staff Regulations.

Submission concerning misuse of powers

The applicant contends that, far from having been taken in the interests of the ser­ vice, or at least substantially on those grounds, the decision of dismissal was the consequence of an article which he had published in the Amsterdam Algemeen Handelsblad of 14 February 1959 and in which emphasis was laid on the uncertain future of translators in the Language Service of the Commission, and that, as the decision at issue was, by virtue of this, a disguised disciplinary measure, it is vitiated by misuse of powers in regard to him.

As evidence that this complaint is justified, the applicant asked the Court to call witnesses to prove:

(a) 'that Mr Gummerer, head of the Language Service, assured the applicant that he found nothing to criticize in his work and that nothing would have happened to him if it had not been for publication of the aforementioned article';

Mr Stempels confirmed the evidence given Mr van Riemsdijk.

Questioned by the Court in his capacity as Director-General for Administration in the Commission of the EEC, Mr van Karnebeek testified that he had inter­ viewed the applicant concerning publication of the press article as soon as it ap­ peared and that, after the interview, he had considered the incident to be closed.

In accordance with Article 47 (6) of the Rules of Procedure of the Court of Justice of the European Communities, the above-named witnesses signed the minutes of their evidence and, after giving their evidence, Messrs Gummerer and van Riemsdijk took the oath in accordance with Article 47 (5) of the said Rules.

The testimony hereinbefore described did not confirm the allegations made by the applicant in support of his complaint of misuse of powers.

The applicant further contends that the lack of any consideration of the interests of the service in the contested decision to dismiss him is proved by the fact that another translator in the Dutch section, Mr van Alphen continued to be employed despite the fact that, in the classification of suitable candidates drawn up by Mr Gummerer on 16 January 1959, he was placed below the applicant.

Even on the assumption that Mr van Alphen had been illegally retained in em­ ployment, this is not, on the other hand, sufficient to justify the retention of the applicant if, on the facts, it is clear that the appointing authority decided to dismiss him in the interests of the service.

The contract at issue, which comes under administrative law, is subject to obser­ vance of this principle and the fact that it was provisional or temporary does not exempt it from this requirement.

Consequently, the contested decision of dismissal, must, in order to terminate that contract, be justified on grounds relevant to the interests of the service and there must be nothing arbitrary about it; such, for example, as the need to dispense with the services of an unqualified servant or a servant occupying a post which has been abolished in the interests of the service.

The statement of the grounds on which an administrative measure is dictated by the public interest must be made in terms which are specific and capable of being challenged, for otherwise the official concerned would have no means of knowing whether his legitimate interests have been respected or infringed and furthermore any review of the legality of the decision would be hampered.

In the present case, the letters of dismissal did not more than notify the applicant, without giving any reasons, of the administration's intention to terminate the con­ tract.

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

The applicant has accepted that the termination of his contract was undoubtedly connected in essence with that notification, but having regard to the circum­ stances of the case and, above all, the considerable time which elapsed between

The Court has extracted from the circumstances of the case factors enabling it, in equity, to assess damages at FB 100000.

Consequently the offer made by the defendant to pay the applicant the sum of FB 100000 must be considered adequate.

By order of the President of the Court dated 1 October 1960, the Commission of the EEC was ordered to make an interim payment to the applicant of FB 60000; consequently, the amount of FB 100000 to be paid to the applicant as compen­ sation for non-material damage must be reduced by the amount of the interim payment made to him.

Period of notice granted by the Commission

It is also appropriate to consider whether the period of notice granted by the Com­ mission in terminating the contract at issue conformed to normal practice.

In the absence of any relevant requirements in the contract of employment it is of no avail to refer to the conditions applicable to the temporary servants of the ECSC, because those conditions make no provision for contracts of indefinite du­ ration in the engagement of temporary officials; it is consequently necessary to rely on the general principles of law and the 'Conditions of Engagement of Aux­ iliary Staff, to which the defendant refers.

Costs

Under Article 70 of the Rules of Procedure of the Court of Justice of the European Communities, without prejudice to the provisions of the second subparagraph of Article 69 (3) of those rules, in proceedings commenced by servants of the Com­ munities, institutions shall bear their own costs.

Under the first subparagraph of Article 69 (39) of the aforesaid rules, where each party succeeds on some and fails on other heads, the Court may order that the parties bear their own costs in whole or in part.

The applicant has failed on the heads of his application for a ruling that he is en­ titled to security of tenure and that the period of notice given by the defendant for termination of the contract in question was illegal; the applicant has also failed on the head of his application for a declaration that the contested decision of dis­ missal was a misuse of powers.

In consequence the costs must be shared.

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 Order of the President of the Court of 20 October 1959; Having regard to the Order of the Court of 20 June 1960; Having regard to the Order of the President of the Court of 1 October 1960; Having regard to the first paragraph of Article 173 and 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;

3. Orders Mr R. P. M. Fiddelaar to bear the costs which he incurred in the

proceedings for the purpose of obtaining a stay of execution of the con­ tested decision and during the measure of inquiry ordered by the Court;

4. Orders the Commission of the EEC to pay the costs of the proceedings for the adoption of interim measures. Donner Hammes Riese Delvaux Rossi

Delivered in open court in Luxembourg on 16 December 1960.

A. Van Houtte A. M. Donner

Registrar President