C-18/63

2. Officials — Disputes with the Communities — Procedure preliminary to appeal to the Court — Use

(Staff Regulations of officials of the EEC and EAEC, Article 90; Conditions of Employ­ ment of Other Servants of those Communities, Article 73)

3. Officials — Integration under the Staff Regulations — Permanent post — Concept

(Staff Regulations of officials of the EEC and EAEC, Articles 1 and 102)

1. An appeal to the Court under Article Employment of Other Servants is a

91 of the Staff Regulations of officials preliminary to an appeal to the

In Case 18/63

Estelle SCHMITZ, the wife of Roland WOLLAST­ , residing at 20 Avenue van den Thooren, Brussels, represented by Marcel Slusny, Advocate of the Cour

1 — Language of the Case: French.

JUDGMENT OF 19.3.64 — CASE 18/63

d'Appel, Brussels, charge de cours at the Free University of Brussels, with an address for service in Luxembourg at the Chambers of Bernard Schmitz, 6 rue T.-B. Esch,

applicant,

THE COURT

composed of: A. Trabucchi, President of the Chamber, L. Delvaux and

W. StrauB (Rapporteur), Judges,

Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

of your entry into service. But, in the The applicant accepted these conditions.

WOLLAST v EEC

2. On 1 January 1962 Regulation the position announced in notice of

No 31 of the Councils of the EEC and vacancy No 87. By a letter of 30 October the EAEC, laying down the Staff 1962, the administration informed the

Regulations of officials and the Condi­ applicant that because she was engaged

tions of Employment of Other Servants as a member of the auxiliary staff her of the Communities (Official Journal of application for promotion or transfer

staff. Her duties shall commence on heard with regard to an incident which 1 January 1962. gave rise to a complaint by Mr Albrecht,

By accepting this contract, the servant another official of the Commission. On shall be subject to the Conditions of 29 October 1962 a motor accident had Employment of Other Servants of the occurred in the immediate vicinity of Communities and to the provisions made the Commission's offices. Mr Albrecht in implementation thereof. had ordered the applicant, who at that Article 2 time was on duty, to make her way to

The principal duties of the servant shall the scene of the accident with her first- be those of a nurse. aid kit. He complained that the appli­

cant did not follow his instructions with Article 5 the necessary diligence and, in the

This contract shall be for the period presence of the crowd surrounding the from 1 January 1962 to 31 July 1962. accident, refused to intervene. He also

However, the contract may be termin­ criticized her for not having brought her ated under Articles 74, 75, 76 and 77 of first-aid kit with her. Conditions of Employment of Other Com­ the Following this examination the

4. In No 14 of the 'Communications to the staff of the European Economic 7. By a letter of 20 December 1962, Community'

of 19 September 1962, the Mr Smulders informed the applicant

Commission announced two vacancies that her contract was extended to 31 for nurses (notices of vacancy Nos 87 January 1963 but that she was relieved and 88). from duty with effect from 1 January On 4 October 1962 the applicant 1963. In addition the applicant was told presented her written application for that this extension did not in any way

JUDGMENT OF 19.3.64 — CASE 18/63

Com­ prejudice the decision on the possibility, Court of Justice of the European if appropriate, of a further extension of munities jurisdiction 'in any dispute the contract. Following this, the appli­ between one of the Communities and a

cant sent a number of state­ person to whom the Regulations apply'. supporting her dif­ In addition, Article 211 ments justifying conduct to of the Treaty ferent members of the Commission. establishing the EEC provides that the Community shall be represented in 8. On 31 January 1963 the Commis­ legal proceedings by the Commission. sion informed the applicant that her The defendant has nothing to say on this contract would not be renewed. point. Its written statements are drawn

request and a within the to the of relating meaning of Article 90 of the Staff officials of the Com unites; Regulations and of Article 73 of the Rule that the Commission is bound Conditions of Employment of Other to apply this procedure to the appli­

Servants. cant within a period of time to be By a letter of 1 March 1963 Mr Smulders fixed by the Court; replied to her that it was impossible to Take note that the applicant retains

apply Article 102 in her case 'as it refers the right to claim such damages as

expressly and exclusively to servants are owing to her by law if the occupying a permanent post and not to Commission fails to apply the inte­

auxiliary staff who, like yourself, have gration procedure within the time

been engaged on the basis of a contract of fixed by the Court: limited duration, which, moreover, as it 2. Declare null and void the decision was not extended, expired on 31 January to terminate the contract, notified

in Com­ ant; conclusions of the being the service of the condi­ parties mission under the terms and

tions of the contract of employment

1. The applicant directs her applica­ of 13 April 1962, for an indefinite tion 'against the European Economic period (but without prejudice to the Community or, alternatively, against reservations made by the applicant

the Commission, both of whom she with regard to her clasifcaton); designates as the opposing parties'. In Rule that the European Economic

this respect she points out that Article 91 Community or alternatively the

of the Staff Regulations confers on the Commission owes the applicant

Commission owes the applicant the course of the proce dings; sum of 100000 FB as arrears, subject (b) Reserves the right to raise during to increase or decrease during the the course of the action such

course of the procedings; fresh issues of fact and of law to

Take note that the applicant is ready which she may subsequently have at any time to resume her duties with recourse after having seen the

the Commission. opposing party's submissions in 3. Alternatively, in the event of the defence and the possible produc­

Court's tion of documents by it; considering the applicant's contract to be no longer in force: (c) Offers to prove by all legal Rule that the dismissal notified to means available, including the applicant is irregular; witnesses, the facts which she

Rule that the European Economic alleges and for up to the which

to order the oppos­

applicant which prohibits her from ing party to produce certain docu­ carrying out her duties during Jan­ ments.

uary 1963; The defendant contends that: Rule that the European Economic —

the application should De dismissed

Community owes the applicant under as inadmissible and unfounde ; this head the sum of 1 FB in damages; —

the applicant should be ordered to

ing and that the applicant is 1 March 1963 was not taken by the

JUDGMENT OF 19.3.64 — CASE 18/63

competent authority. At that time the identical to those which the applicant

Commission had decided that 'as re­ carried out.

gards Categories C and B, the decision to The defendant replies that the applicant

grant the benefits of the Staff Regula­ was never anything other than a mem­

her letter both as a request and a com­ programme and a detailed list of posts in plaint within meaning of Article 90 the keeping with the budget and which must of the Staff Regulations, she has failed be occupied by a servant who carries out to observe that this provision prescribes such duties on the basis of a service

that requests of this nature must be report corresponding to that position'. made to the appointing authority. As, from 1 February 1963, the applicant The applicant replies that she addressed was no longer in the service of the Com­ the letter to the Head of the Directorate- mission, she could only have obtained a General of Administration and thus to permanent position through a recruit­

the appointing authority. ment competition as prescribed by The defendant maintains that the appli­ Article 29 of the Staff Regulations. cant is overlooking 'the essential pre­ I he position occupied by the applicant liminary question': having ceased to be and that announced as vacant were not

part of the Commission's staff after identical; it would in fact have been 31 January 1963 she no longer had the nonsensical to offer for competition a

right to take advantage of remedies position which was already taken. reserved exclusively for that staff; for According to the defendant, 'the appli­

the same reason the administration could cant is precluded from presenting her no longer adopt with regard to the complaint in which she criticizes the

entry into force of the Regulations positions.

occupied a permanent position can take The applicant replies that the concepts

integration procedure. 'member staff'

advantage of the of the and auxiliary Notice of vacancy No 87 shows that the 'permanent position' must not be inter­

solely from a budgetary point of posi­ applicant occupied a permanent preted

tion. The duties prescribed for the view. What counts is the real nature of position announced as vacant were the position. By Article 102 of the Staff

ment of Other Servants, which does not was identical, in her own words, to that form part of the permanent staff, does which she was already occupying.

not apply to the period before the entry The defendant denies ever having given into force of these provisions and does any assurances whatsoever to the appli­

not moreover apply in the case of the cant.

applicant.

The defendant is begging the question 2. As to the second head of the conclusions 'perm­ by interpreting the concept of

anent post' as having a purely procedural The applicant considers the letter of

cluded from making any claim, the responsible for the recruitment of auxi­

applicant points out that at that time liary and temporary staff, the trans­

she had no reason to criticize the notice formation of the original contract into of vacancy since there existed circum­ several contracts for a fixed period was

stances which made her consider that justified by purely procedural reasons

the vacant position would be offered to which were related to forthcoming her whatever the procedure adopted. integration and admission to the bene­

The defendant replies that Article 3 of fits of the Staff Regulations. By means the Conditions of Employment of Other of this argument Mr Dolemans induced Servants contains a definition of the her to sign the draft contract on 13 April term auxiliary staff which is inconsistent 1962. At the time of the extension of the with the argument of the applicant. It is contract to 31 October 1962, Mr Dole­ incorrect to say that auxiliary staff, by mans told her that her integration had

applicant s considerable professional ap­ disputably bound by a contract for titude. Moreover the decision of dis­ an indefinite period.

missal does not mention such reasons 2. The new contract continued as a

with the result that it is impossible to 'plurality of alleged contracts for a

check whether the justifiable interests fixed period'. Not even on the occa­

of the applicant were respected. sion of the final extension which

The defendant maintains first that the occurred on 21 December 1962 did contract of 13 April 1962 constitutes a the Commission exclude the possi­

the contract one can conclude without of the same amount.

any question that there was no trans­ From the legal nature of the contract it formation of such contract into one for is clear that the defendant was under the an indefinite period. obligation to terminate the contract

According to Article 52 of the Condi­ expressly and to give reasons for such

tions of Employment of Other Servants, termination.

the complete duration of employment Article 52 of the Conditions of Employ­ of auxiliary staff including extensions ment of Other Servants cannot be relied (and without taking account of other on as against the applicant since her cases which do not apply here) must not 'contract covered 13 months' which, exceed one year. In this case this pro­ moreover, the defendant considered as

vision was observed. Even if one were to capable of being extended.

definition there was no need to give hidden disciplinary measure. reasons. Apart from that, such an In its rejoinder the defendant repeats the obligation only exists when the relevant main points of its arguments which have provisions expressly so prescribe. already been set out in its statement of defence. B — Second submis on: Misuse of

powers C — Third submis on: Misuse of rights

On this matter the applicant asserts that The applicant asserts that the measure it was on the basis of the assurance that impugned is vitiated by misuse of she would be integrated and entitled to powers in so far as it constitutes 'a the advantages of the Staff Regulations hidden penalty relating to the incident that she abandoned her position in between the applicant and Mr Al­ Luxembourg. Because of her age she is brecht'. Contrary to Article 76 of the no longer able at present to find in Conditions of Employment of Other Servants (which deals moreover only Luxembourg a job similar to the one

with 'serious' the Com­ which she previously held. Her husband misconduct) mission did not give reasons for the has a post at the University of Brussels and pursues a career in science which is measure nor did it give the applicant the poorly paid. The couple have three opportunity to justify her conduct. children to support. The applicant's The defendant replies that the ground of immediate superior, Dr de Ketelaere, complaint raised by the applicant has has spoken very flatteringly about her nothing to do with the concept of and has written to ask the President of 'misuse of powers'

JUDGMENT OF 19.3.64 — CASE 18/63

must take the form which corresponds become undesirable. most closely to the nature of the damage. T he defendant replies that the right of the As she is willing to take Administration up her former to adopt measures of

duties without delay she asks the Court this type stems directly from disciplinary to declare that the contract subsists. power and must consequently be recog­

On this matter the defendant makes no nized, even in the absence of an express

specific observations. provision. The suspension at issue had the exclusive aim of creating the most

3. Third head of the conclusions favourable conditions possible for the

understand how the applicant can ask 5. Sixth (sic) head of the conclusions accord­

for compensation equivalent to the ing to the application amount of the overall salary which she In her reply the applicant withdraws this would obtain if she worked without head of the conclusions and substitutes interruption until the age of 65 in the for it a new one (see below, point 6). She service of the defendant. justifies such withdrawal as follows: (a) The applicant does not maintain 4. Fourth head of the conclusions her res rvations;

(b) There is now no point in this head T he applicant declares that the damage since, in the reply, the applicant caused to her by the infringement of the raised fresh issues necessary to refute disciplinary provisions and of her right those put forward in the statements to defend herself is adequately com­

of defence: pensated by the symbolic amount of The interprets the 1 franc 'unless the Court considers that (c) applicant argu­

ments in the statement of defence the annulment which it pronounces as meaning that the defendant does constitutes of itself adequate compensa­

not contest the facts which have tion'. been set out in the application. The The defendant replies that the temporary offer that witnesses should give suspension of the applicant is not a evidence is thus no longer necessary. disciplinary but an administrative mea­

considers it that the docu­ poned but would occur before 31 necessary ments in question should be produced. October, or did you make any The defendant produces some of the similar statement? If your answer

documents requested and gives detailed is in the affirmative on what were

reasons for its refusal to produce the rest. you basing your statements?' Fran­ C — Messrs Albrecht, Bernusset, IV Procedure cescon, Mozzanica and Nardi, and Miss —

Weissgerber, all officials of the defendant The procedure followed the normal were asked the following questions:

course. (a) 'When, by whom, in what circum­

stances and in what terms was the

A — Mr Merpillat, a former Director at have governed the applicant's con­

the Commission, was asked the following duct in such a situation taking question: account in particular of the possi­

In 1959, when the applicant took up bility: her duties, did you let it be known to — that at the time of receiving the her that, when the time came, she message the applicant was on

could become integrated or did you duty and attending to an official make any similar statement?' of the Community; B — Mr Dolemans, an official of the —

that she had not been informed

defendant, was asked the following of the nature and place of the

was the intention of the Administra­

tion? 4. The hearing took place in open

(b) 'With regard to the extension of the court on 11 December 1963. applicant's contract to 31 October 1962, did you state to the applicant 5. On 28 January 1964 the Advocate- that her integration had been post- General delivered his opinion.

JUDGMENT OF 19.3.64 — CASE 18/63

Grounds of judgment

I —

Article 90 of the Staff Regulations governing the non-contentious procedure for dealing with requests or complaints by officials specifies that such a procedure, which logically precedes an appeal to the Court, must be initiated with the appointing authority of their institution. In the absence of provisions to the contrary, an appeal to the Court under Article 91 must be

governed by similar rules. The Commission is authorized to appear on

behalf of the Community.

The application must thus be considered as admissible and directed against the Commission.

II — As to the alleged grounds of complaint

It is appropriate to examine the second head of the application before the 'termination' first. In fact, on the assumption that the of which the applicant

This objection must be dismissed. In this case it follows from all the events

occurring before 31 January 1963 that the fact that the applicant's contract was not extended beyond that date, far from appearing a simple failure to

act, occurring as it were accidentally, constitutes a definitive demonstration of intention with regard to a matter on which the defendant was bound to adopt a definite position. There was consequently a decision.

(b) The defendant has admitted that the reason for this decision was the applicant's conduct at the accident of 29 October 1962. As this is a matter of an appeal in which the Court has unlimited jurisdiction under Article 91 (1) of the Staff Regulations, the Court is empowered to examine the merits of the said reason. In so doing the Court relies in particular on the evidence of the witnesses heard with regard to the incident in question.

At the time when the applicant was told of the accident she was on duty and her instructions were that she should leave her post only in circumstances of

extreme urgency.

It thus appears from what was said by the witnesses that the applicant

consequently received rather fragmentary information which was given through a closed door when the injection which she was administering to another official required all her attention. Consequently the problem whe­

ther the applicant acted too slowly only arises from time when Mr the Albrecht spoke to her directly; seen from this angle there was no prejudicial delay. In respect of the applicant's hesitation in the presence of the crowd

which had gathered around the injured person, this attitude, when one takes account of the circumstances in which this hesitation occurred as well as its brief duration, is not capable of an unequivocal interpretation and cannot

be considered as constituting misconduct.

In addition, the applicant's superior, the witness Dr de Ketelaere, stated that 'the human 'are qualities'

grounds of complaint raised in respect of it.

(c) The applicant further submits that the Court should declare that she

'must still be regarded as being in the service of the Commission under the terms and conditions of the contract of employment of 13 April 1962, for an indefinite period, but without prejudice to the reservations made by the applicant with regard to her classification'. As has been stated, since this

appeal is one in which the Court has unlimited jurisdiction, these conclu­

sions are admissible.

As the decision impugned, having been annulled, must be considered as

Nevertheless, in order to avoid granting an unjustified gain, account must be taken of the fact that, because she did not carry out her duties from the above-mentioned date, the applicant was able to avoid certain expenses

which she would have had to incur had she actually remained at work.

In particular it seems clear that a household which includes three very young children must engage domestic help when both parents are gainfully occu­ pied.

The Court assesses the savings which the applicant was thus able to make

at 15%.

2. As to the first head of the application

The defendant asserts as to this that the real decision sanctioning the

refusal to apply the integration procedure to the applicant is contained in the

creation of two posts for nurses and the publication of the relevant notices

of vacancy and that the applicant, far from contesting these decisions within the time limits laid down by law, even offered herself as candidate for one of the posts in question.

This objection must be dismissed. It is based on the assumption that the

applicant recognized by implication that she could not claim to be integrated in the post she was holding. At that time the applicant could hope to become integrated in the way which the defendant itself seemed to offer.

manner, in the budget of the Community. This interpretation is con­ similar

firmed by Article 1 of the Staff Regulations according to which the position of an official is characterized by the fact of having been appointed to a permanent post; this is by contrast in particular with auxiliary staff who are governed by the 'Conditions of Employment of Other Servants'.

JUDGMENT OF 19.3.64 — CASE 18/63

These considerations are not altered by the fact that before the entry into force of the said Regulations and Conditions the position of certain of the Community's auxiliary staff presented in fact no real difference from that of 'Brussels'

servants employed on the basis of a so-called contract.

If one were in fact to recognize that these members of the auxiliary staff

must consequently be dismissed as unfounded.

Nevertheless taking account of the considerations set out under 1 above, the Court must rule that the defendant is bound to allow the applicant to take part in the competition organized in accordance with Article 29 (1) (b) of the Staff Regulations for the post specified in Notice of Vacancy No 87. For the purposes of the said competition the defendant shall not hold against the

applicant her conduct at the incident on 29 October 1962.

3. As to the third head of the application

These have been drawn up only 'in the event of the Court conclusions

considering the applicant's contract to be no longer in force'. In this case the said conclusions have now lost their purpose.

dispute, the production of the documents which are the subject of this part of the conclusions has no further legal interest.

WOLLAST v EEC

III — Costs

Under the terms of Article 70 of the Rules of Procedure the costs incurred by

an institution in appeals referred to in Article 95 (1) of the said Rules shall be borne by it.

Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Raporteu; Upon hearing the witnes ; Upon hearing the parties;

Upon hearing the opinion of the Advocate-General;

Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Staff Regulations of officials of the European Economic Community and the Conditions of Employment of Other Servants of that Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT (First Chamber)

her by:

2. (a) Dismisses the request for the annulment of the decision contained in the letter of 1 March 1963 addressed to the applicant by Mr Smulders, declaring that the establish­

ment procedure referred to in Article 102 of the Staff Regulations of officials of the EEC cannot be applied to her:

(b) Orders the defendant to allow the applicant to take part in the competition organized pursuant to Article 29 (1)

(b) of the Staff Regulations of officials of the EEC for the post specified in Notice of Vacancy No 87 of the Com­

mission;

(c) Orders that, for the purposes of the said competition, the defendant shall not hold against the applicant her con­ duct at the incident on 29 October 1962;

Trabucchi Delvaux Strauß

Delivered in open court in Luxembourg on 19 March 1964.

H. J. Eversen A. Trabucchi

Assistant Registrar President of the First Chamber For the Registrar