C-25/68
ECLI:EU:C:1977:158
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JUDGMENT OF THE COURT SECOND CHAMBER 18 OCTOBER 1
Andre Schertzer v European Parliament
Case 25/68
Officials — Other servants — Temporary staff Staff employed to fill posts with a —
political group in the European Parliamentary Assembly Contract for an —
indefinite period — Clause relating to notice — Termination of the contract — No statement of reasons required (Conditions of Employment of Other Servants, Articles 11 and 47)
The justification for the unilateral it. In this respect the position of
termination of a contract of employment temporary staff is fundamentally distinct for an indefinite period containing a from that of officials under the Staff clause stating the period of notice, such Regulations; in particular, there is no
termination being expressly provided for basis for the analogy which justifies and
by Article 47 of the Conditions of limits the reference contained in Article Employment of Other Servants, is to be 11 of the Conditions of Employment of
found in the contract of employment Other Servants to Article 25 of the Staff and reasons do not have to be stated for Regulations of Officials.
In Case 25/68
Andre Schertzer formerly a member of the temporary staff ot the European ,
Parliament, residing in Cap d'Agde (France), represented by Marcel Slusny, Advocate at the Cour d'Appel, Brussels, with an address for service in
Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny, 34 B/IV Rue Philippe-II,
applicant,
v
European Parliament , represented by its Secretary General, Hans-Robert Nord, acting as Agent, assisted by Alex Bonn, Advocate of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of Mr Bonn, 22 Cote d'Eich,
defendant,
1 - Language of the Case: French.
JUDGMENT OF 18. 10. 1977 - CASE 25/68
Application for the annulment of the measure of 19 September 1968 by which the European Parliament terminated with effect from 16 September 1968 the applicant's contract as a member of the temporary staff, alternatively of the implied decision rejecting the applicant's camplaint against the letter
of 12 March 1968 by which the European Democratic Union Group (now the European Progressive Democrats Group) terminated his employment as Administrative General Secretary, altenatively of the ruling contained in the letter from the President of the European Parliament dated 24 July 1968 that
the applicant's complaint was inadmissible,
THE COURT (Second Chamber)
composed of: P. Pescatore, Acting President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges,
Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
The facts of the case, the procedure and Pursuant to a contract of employment
the conclusions and arguments of the concluded on 29 January 1965 under the
parties may be summarized as follows: Conditions of Employment of Other Servants of the Communities and signed
on behalf of the European Parliament by I - Facts Jacques Vendroux, in his capacity as
Chairman of the European Democratic Andre Schertzer, an official of the Union Group, Mr Schertzer became a
Council of the European Communities member of the temporary staff in the
since 1 July 1963, was employed from 1 same post and in Grade A 3 with effect
June 1964 as Administrative General from 1 January 1965 for an indefinite 'Non-attached'
Secretary of the Group, period.
subsequently the European Democratic Union Group (now the European By letter dated 12 March 1968, signed by Progressive Democrats Group), in the Jean de Lipkowski, Chairman of the European Parliament European Democratic Union Group, and
SCHERTZER v PARLIAMENT
by Louis Terrenoire Vice-President of the European Democratic Union Group, that European Parliament, the European that prolongation definitely terminated
Mr Schertzer's Democratic Union Group informed Mr in any event employment
Schertzer that it had decided to terminate with the European Democratic Union his employment as General Secretary Group. from that date and that notification of
that decision represented the beginning By letter dated 24 July 1968 the
of three months notice. President of the European Parliament informed Mr Schertzer that his On May 1968 Edmond 20 Borocco, complaint of 10 June was wrongly Parliamentary Secretary of the European addressed: on 12 December 1962 the
Democratic Union Group, informed the Bureau of the European Parliament, Secretary-General of the European acting under Article 6 of the Conditions Parliament that since Mr Schertzer had of Employment of Other Servants, been unable because of his work to take delegated to each political group the task
the full annual holiday to which he was of designating the authority empowered
entitled during his assignment to the to conclude contracts of employment
European Democratic Union Group, the with its servants. Since the European termination of his contract of Democratic Union Group had designated employment had been definitely fixed its Chairman, he was the authority to
for 16 September 1968. whom complaints by servants of his
group should be addressed. The President By letter dated 10 June 1968 the of the European Parliament had no
Secretary-General of the European authority to deal with such a complaint.
Parliament informed Mr Borocco that he had noted the date on which Mr On 19 September 1968 the
Schertzer's contract of employment was Director-General of Administration of
to expire, although the grounds for its the European Parliament forwarded to
postponement did not appear to be in Mr Schertzer the severance grant 'due to
accordance with Article 4 of Annex V to you on the termination of your
the Staff Regulations. temporary contract on the evening of 16 September 1968'. On the same day, namely 10 June 1968, Mr Schertzer submitted a complaint
through official channels to 'the II — Procedure President of the European Parliament and the authority referred to in Article 6 On 9 October 1968 Mr Schertzer brought of the Conditions of Employment of the present action.
Other Servants of the European Parliament'
under Article 90 of the Staff The written procedure followed the Regulations (Article 46 of the Conditions normal course. The Court (Second of Employment of Other Servants) Chamber), after hearing the views of the against the decision of the European Advocate-General, decided to open the Democratic Union Group of 12 March oral procedure without any preparatory 1968. inquiry.
By letter dated 11 July 1968 Mr de On 26 September 1969 the applicant
Lipkowski, Chairman of the European lodged with the Court Registry certain
Democratic Union Group, informed the documents in support of his application, Secretary General of the European in particular, photocopies of minutes of
Parliament that the action constituted by business meetings of the European Mr Borocco's letter of 20 May was not in Democratic Union Group and a copy of accordance with the decision of the a letter of 17 May 1968 from Jean de
JUDGMENT OF 18. 10. 1977 - CASE 25/68
Lipkowski, Chairman of the European pending a further decision of the Court Democratic Union Group. and ordered that the parties should
produce the judgments on the respective
The European Parliament informed the claims.
Court that the validity of certain of these By a further order dated 3 December documents was by the contested 1969 the Court (Second Chamber) European Democratic Union Group and suspended its decision on the applicant's that Mr de Lipkowski denied the claim made on 1 October 1969 for legal authenticity of the letter of 17 May 1968; aid. accordingly, the President of the Second Chamber, by order dated 1 October Since on 30 August 1976 the applicant 1969, ordered the applicant to lodge the informed the Court of his wish that the original of the documents in question. case should be retained on the register, the Court (Second Chamber) decided to After the European Parliament had reopen the oral procedure. The hearing submitted written observations on those was adjourned on various occasions. documents, the parties were heard by the Court (Second Chamber) in the On 27 January 1977 the applicant
Deliberation Room on 29 October 1969. forwarded to the Court an order dated 6 November 1970 of the Juge d'Instruction
During that hearing the applicant at the Tribunal de Grande Instance, explained the cause of his delay in Strasbourg, quashing the indictment in
complying with the order of 1 October respect of the information laid against
1969 and the Court (Second Chamber), him for forgery and the uttering of a
by order dated 29 October 1969, forged document. authorized the documents in question to
be lodged and the European Parliament On the basis of further information and
submitted further observations on them documents supplied on 27 January and
on 18 November 1969. 12 April 1977 the Court (Second Chamber), by order dated 28 April 1977, The Court (Second Chamber) was granted the applicant legal aid.
informed by the parties, on the one
hand, that on 3 October 1969 the
applicant had lodged a complaint III — Conclusions of the parties
alleging breach of trust before the senior Juge d' Instruction at the Tribunal de The applicant in his originating Grande Instance, Paris, on the question application claims in essence that the
of authenticity of the letter of 17 May the Court schould: 1968 from Mr de Lipkowski and, on the (a) principally: rule that the decision of
other hand, that Edmond Borocco and 19 September 1968 confirming 16 Raymond Triboulet, member and September 1968 as the date of
Chairman respectively of the European termination of the contract as a
Democratic Union Group at the member of the temporary staff is European Parliament, had on 18 invalid; November 1969 each lodged a complaint (b) alternatively: alleging forgery and the uttering of a annul for lack of competence and —
forged document against Mr Schertzer misuse of powers the letter of 12 before the Procureur de la République at March 1968 terminating the
the Tribunal de Grande Instance, contract; Strasbourg. — declare that the contract of
employment as a member of the
As a result, by order dated 3 December temporary staff of 29 January 1969, the Court stayed the proceedings 1965 is still in force;
SCHERTZER v PARLIAMENT
(c) order the defendants to bear the costs; until later and by September (d) order the defendants to the 1968 at the latest: pay applicant the sum of FB 1 by way of 3. That pending such official
symbolic damages for the non- notification the contract of
material loss caused. employment was provisionally extended for a limited period
expiring on 16 September The European Parliament in its 1968; that this was the true statement of defence contends that the purport of the letter from Mr Court should: Borocco of 20 May 1968. (a) declare the application to be inadmissible; declare it be The European Parliament in its (b) alternatively: to rejoinder contends that the Court should: unfounded:
(c) make an appropriate order for costs. (a) reject the applicant's submissions, conclusions and offer of proof; the same without to the (b) prejudice The applicant in his reply claims that conclusions set out in the statement the Court should: defence. of
(a) principally: — take note that he relies on the
Court's discretion in maintaining IV — Submissions and arguments his action against the second and of the parties during the third defendants referred to in the oral procedure
originating application; declare that the submissions of A —
— Admissibility inadmissibility put forward by the defendant are unfounded and 1. The naming of the defendants reject them; — the same without prejudice to his The European Parliament is of the previous conclusions;
(b) alternatively and in so far as is opinion that the authority referred to in Article 6 of the Conditions of necessary: Employment of Other Servants, in the — take note that the applicant oners
in present case the Chairman of the to produce witnesses, particular European Democratic Union Group, the Parliamentary Secretary and
Treasurer European cannot be party to an action at law. The the of the
Union same is true of the political group of the Democratic Group, Mr European Democratic Union, which Borocco, to the following facts: moreover has no legal personality. The 1. That during unofficial contacts European Parliament is the only which the applicant had with appropriate defendant the group in May 1968 he was
formally assured that the
notice of termination of 12 The applicant leaves the matter to the
March 1968 was to be regarded Court's discretion and refers to the
as rescinded and that as a judgment of 9 June 1964 in Joined result his contract of Cases 79 and 82/63, Jean Reynier and employment was to be Piero Erba v Commission [1964] ECR continued for an indefinite 259, which states that the appointing period; authority, which exercises in fact the 2. That nevertheless the powers of an employer with regard to annulment and extension were officials, has the capacity to be a party to not to be brought to the legal proceedings in disputes between knowledge of the institution servants and the administration.
JUDGMENT OF 18. 10. 1977 — CASE 25/68
2. The subject-matter of the dispute other hand, the President of the Parliament was competent, his letter of
The European Parliament is of the 24 July 1968 cannot be regarded as an
opinion that its letter of 19 September answer going to the substance and
1968 is not a contestable decision. It therefore the silence continued beyond
merely forwarded to the applicant his that date. severance grant in pursuance of the
decision terminating his contract of 12 If the letter dated 24 July 1968 from the
March 1968, as supplemented by the President of the Parliament can be letter from Mr Borocco of 20 May 1968; regarded as going to the substance, it is the action is therefore inadmissible in so contested.
far as it is directed against the letter of 19 September 1968. The action is not directed against the
letter of termination of 12 March 1968 As for the alleged implied decision but against the implied decision rejecting
rejecting the applicant's complaint of 10 the complaint made against that letter.
June 1968, the explicit reply from the President of the Parliament dated 24 July 3. The time limit for bringing an action 1968 rules out the possibility of speaking of silence on the part of the The European Parliament considers the
administration. action, in so far as it is directed against
the letter dated 24 July 1968 from the
The fact that the applicant alleges lack of President of the Parliament, as being out competence against the letter of of time: the time limit of two months
termination from the European from the date of the decision rejecting Democratic Union Group dated 12 the complaint through official channels
March 1968 necessarily means that he expired on 24 or at the latest 26 regards the President of the Parliament as September 1968. the authority referred to in Article 6 of the Conditions of Employment of Other The applicant considers that the
Servants. The complaint through official administration did not answer the
channels was therefore wrongly directed. complaint of 10 June 1968 and that the
action against that failure to answer, The applicant is in fact complaining brought on 9 October 1968, was brought about the letter of termination dated 12 in good time. If, on the other hand, the March 1968. letter from the President of the Parliament were to be regarded as an
The applicant denies that the letter express answer on the substance the
dated 19 September 1968 from the action would be admissible since the
Parliament is merely in execution of a period of three months laid down for previous decision. bringing an action was kept open
because the complaint through official
If the President of the Parliament lacked channels was submitted and the period
the necessary competence, as alleged in thus did not expire until 24 October his letter of 24 July 1968, it follows that 1968. the authority referred to in Article 6 of the Conditions of Employment of Other 4. Conduct of the applicant Servants, to which the complaint of 10 June 1968 was also addressed, remained The European Parliament maintains
silent for more than two months; the that the action as a whole should be implied decision of refusal resulting from regarded as inadmissible because of the
that silence is therefore capable of being applicant's acquiescence: by letter dated the subject-matter of an action. If, on the 21 May 1968 he noted that the
SCHERTZER v PARLIAMENT
termination of his employment had been The European Parliament considers, on
postponed to September and he gave the the other hand, that the extension of the Parliament particulars of the bank applicant's contract in no way detracts account to which his severance grant from the decision of 12 March 1968 to should be paid. The only interpretation terminate his employment.
of the applicant's attitude is that he accepted the decisions taken with regard The sole purpose of the letter of 20 May to the termination of his employment. 1968 from Mr Borocco was to protect the
applicant's rights in respect of unused
The applicant considers that great care leave. The fact that the method of
should be exercised in deducing compensation suggested therein was not
acquiescence on the part of a public completely in accordance with the
servant from his conduct. He felt himself second paragraph of Article 4 of Annex bound to reply to the European V of the Staff Regulations is irrelevant Parliament's request for information both since the applicant has no interest in on simple grounds of courtesy and in citing an irregularity which is more
order not to render himself liable to advantageous to him than the strict
disciplinary proceedings. application of the staff regulations. In
any event, the applicant has not
B — Substance contested the letter of 20 May 1968.
Submissions relating to the measures of The offer of proof made by the applicant 19 September 1968 for the first time in the reply without any justification for the delay is inadmissible. 1. Infringement of provisions gov
erning the employment of staff Moreover, on the applicant's own
admission, the decision of 12 March The applicant maintains that the letter of 1968 to determine the contract could
19 September 1968 from the have been annulled only in writing. In Director-General of Administration addition, Mr Borocco contests the
fixing 16 September as the date of promises alleged by the applicant and in termination of his contract showed that any event he was not authorized to take a the Parliament regarded the letter of 12 decision on behalf of the Group; the
March 1968 from the European latter formally denies the applicant's
Democratic Union Group as being of no allegations. The offer of proof is therefore effect. The contract of employment had irrelevant. thus been determined without the
It is inconceivable months'
requisite three notice; this was that the
invalid since it was contrary to Article 47 administration of the Parliament, in
(2) (a) of the Conditions of Employment writing the letter of 19 September 1968 of Other Servants, in conjunction with to the applicant, should have intended the second paragraph of Article 4 of not to execute the decision of 12 March Annex V to the Staff Regulations. 1968 to terminate the applicant's
employment, of which decision it was
During informal meetings in May 1968 aware, but to give a new notice in place
with members of the European of the previous decision, which is alleged Democratic Union Group the applicant to have been annulled, although that
received promises which seemed to annulment had not even been brought to indicate that the decision of 12 March its attention.
1968 was rescinded by the Group. He offers to produce witnesses to prove this Finally, even assuming that the letter of
(supra: III — Conclusions of the parties, 19 September 1968 terminated the
3 (b)). applicant's employment, the dispute is
JUDGMENT OF 18. 10. 1977 - CASE 25 /68
concerned solely with the contractual Union Group expressly acted 'on behalf notice, since it remains common ground of the European Pariament'; the decision that the contract was terminated. The to terminate the employment, on the
action can therefore give rise at most other hand, was not taken on behalf of
only to the award of compensation. the Parliament.
2. Lack of a statement of reasons A decision by the institution is always
required to terminate the contract of
The applicant complains that no reasons employment of a member of the
were given in the letter of 19 September temporary staff, even if the authority 1968 contrary to the provisions of Article referred to in Article 6 of the Conditions 25 of the Staff Regulations, in of Employment of Other Servants has conjunction with Article 11 of the been duly designated. Conditions of Employment of Other Servants. The European Parliament points out
that the authority competent both to
The European Parliament considers that conclude the contract of employment
the observations made in respect of the and to terminate it was the Chairman of
first submission make this complaint the European Democratic Union Group. irrelevant. It follows by implication from the
Submissions relating to the decision of decision of the Bureau of the Parliament 12 March 1968. of 12 December 1962 delegating to each political group the power to designate Should months'
the three notice expiring the authority empowered to conclude on 12 June 1968 be regarded as having contracts of employment that the power been validly extended until 16 September of terminating those contracts was 1968, the applicant makes the following likewise delegated to the political group; complaints against the notice dated 12 legal the representatives of the March 1968: Parliament thus had authority in the no
matter. The European Democratic Union J. Lack of competence Group in fact decided that its Chairman should represent it 'generally in all acts The applicant maintains that to have whatsoever'; that decision was not legal effect the letter of termination recorded in writing by reason of the fact dated 12 March 1968 should have been that the European Democratic Union signed on behalf of the European Group has never kept minutes of its Parliament by the appointing authority meetings. and not by the Chairman of a political
group. The counter-signature of one of Even assuming that there was no formal the eight Vice-Presidents of the designation of the competent authorities, European Parliament, a member of the the European Democratic Union Group European Democratic Union Group, would have to exercise its powers in cannot bind the institution. relation to staff through the intermediary of the authorities which normally The European Democratic Union Group represent it. has never designated the appointing authoritiy; accordingly, the contract of The contested decision was adopted in employment could not be validly legal the name and on behalf of the European terminated save by the
representatives of the institution itself. Parliament; in law it is not possible to
disregard the decision confering on
In the contract of employment the political groups the power to appoint
Chairman of the European Democratic their temporary servants.
SCHERTZER v PARLIAMENT
2. Lack of a statement of reasons regard to the period of notice. The servants of the political groups are
The applicant complains that no reasons selected according to special criteria and were given in the written notice of are in fact in a different position from termination of 12 March 1968, contrary that of other members of the temporary to the provisions of Article 25 of the Staff staff; thus the applicant, who was an
Regulations and of Article 11 of the official in Grade B 2 with the Council, Conditions of Employment of Other was able suddenly to assume duties in Servants. Grade A3, step corollary is 4. The
necessarily a certain precariousness in the The European Parliament considers that post.
the statement of reasons in a notice As for the letter of 14 April 1967 from terminating a contract of indefinite Mr Terrenoire, it is proper to observe that duration of a member of the temporary it was not implemented, since almost a staff may be limited to stating the period year elapsed before the notice of of notice. termination of 12 March 1968 was sent
3. Misuse of powers The European Parliament does not have to inquire into and in fact did not The applicant complains that the
for inquire into the motives which may have reasons the decision of 12 March dictated the decision of the European 1968 did not have their origin in the Democratic Union Group to terminate interests of the service: it appears from a the applicant's contract. letter of 14 April 1967 from Mr Terrenoire that the post of General As for the minutes of the meeting of the Secretary of the European Democratic European Democratic Union Group of Union Group 'must be reserved for one 24 April 1967 referred to by the of our colleagues who has not been applicant, the European Democratic re-elected as a member of Parliament'. Union Group formally states that it never drafted or, as a result, approved minutes The Conditions of Employment of Other of its meetings at the time when the Servants do not distinguish between applicant was General Secretary. At a political and administrative officials; one
meeting of the group in Paris in April and the same set of conditions must be 1967 the only question at issue was that applied to all members of the temporary of not implementing the letter of 14 staff of the institution. The replacement April 1967 from Mr Terrenoire and of of the applicant is contrary in particular
provisionally retaining the applicant's to Article 12 (1) of the Conditions of services until he could be taken over by Employment of Other Servants. the General Secretariat of the European As regards the confidence in the Parliament as a result of an internal Secretary of the political group displayed competition.
by the group itself, the minutes of a meeting held in Paris on 24 April 1967 4. Disguised sanction reveal very positive assessment by the a
European Democratic Union Group of The applicant considers that since the the services rendered by the applicant. written notice of termination dated 12 March 1968 exempted him from working The European Parliament maintans that during the period of notice, it in fact the institution was entitled in accordance constituted a disguised sanction. with Article 47 (2) of the Conditions of Employment of Other Servants to The European Parliament, on the other terminate the applicant's contract of hand, takes the view that it was a benefit employment provided only that it had granted to the servant concerned, whose
JUDGMENT OF 18. 10. 1977 - CASE 25/68
search for another post was thus The European Parliament denies that it facilitated. In view of the special nature was competent in the present case. Its of the applicant's duties the political President was under no obligation to
group to which he was attached was at forward the applicant's complaint to the
liberty to dispense with his services competent authority. Following the reply immediately. of 24 July 1968 it was for the applicant
himself to forward his complaint to the
Submission relating to the letter of 24 authorities referred to in the President's July 1968. letter.
The applicant remains of the opinion
that the President of the European V — Oral procedure Parliament was competent to decide as to the substance of his complaint of 10 The parties submitted oral observations June 1968. Even if the President considered himself to be without at the hearing on 9 June 1977.
authority he ought to have forwarded the complaint to the competent authority. A The Advocate-General delivered his simple ruling of inadmissibility is a opinion at the hearing on 22 September misuse of powers. 1977.
Decision
1 By his application dated 9 October 1968 the applicant seeks the annulment ofthe measure by which the European Democratic Union Group established
within the European Parliament terminated his employment as
Administrative General Secretary.
State of the procedure
2 After the written procedure was completed the applicant produced on 26 September 1969 documents relating a number of new to his action against
the European Democratic Union Group.
3 By orders dated 1 and 29 October 1969 the Court authorized these
documents to be lodged, without prejudice to the rights of the defendant and subject to their admissibility, authenticity and relevance, in respect of which
certain were challenged.
4 At the same time the Court was informed that in relation to the same
documents the applicant had filed a complaint before the Tribunal de Grande
SCHERTZER v PARLIAMENT
Instance, Paris, against an unknown person for breach of confidence and that in their turn two Members of the European Parliament belonging to the
European Democratic Union Group had lodged a complaint against the
applicant before the Tribunal de Grande Instance, Strasbourg, for forgery and
the uttering of forged documents.
5 In view of the connexion between these actions and the present case the
Court, by order dated 3 December 1969, stayed the proceedings pending the decisions to be taken on the complaints referred to.
6 In the absence of any information on the outcome of those actions after the
lapse of a prolonged period the Court informed the applicant by letter dated 14 November 1975 that it intended to remove the case from the register, and set the parties a time-limit within which to submit any observations.
7 Following this notification the applicant gave notice of his intention to
continue the action and subsequently informed the Court that the complaint
lodged against him before the Tribunal de Grande Instance, Strasbourg, was
not being pursued.
8 On the other hand, he was not able to give any information as to the result of the complaint which he had himself made to the Tribunal de Grande
Instance, Paris.
9 Upon completion of the file the case was heard on 9 June 1977 and
deliberated after the Advocate-General had delivered his opinion.
The subject-matter and admissibility of the action
10 By letter dated 12 March 1968 signed by the Chairman and by a member of the European Democratic Union Group the applicant was informed that the
group had decided to terminate the employment which he had entered
pursuant to a contract of employment dated 29 January 1965.
That letter from decision, it months'
11 gave three notice notification of the
being understood that the remuneration relating to that period would be paid
but that the applicant would not be required to discharge his duties.
judgment of 18. 10. 1977 - case 25/68
12 On 10 June 1968 the applicant forwarded a complaint though official
channels under Article 46 of the Conditions of Employment of Other Servants of the Community and Article 90 of the Staff Regulations to the President of the European Parliament against the communication of 12
March 1968.
13 By letter dated 24 July 1968 the President informed the applicant that his Bureau of the European complaint wrongly addressed since the was
Parliament had by decision dated 12 December 1962 entrusted each political
with the task of the empowered to conclude group appointing authority contracts of employment with its servants, so that the complaint should have been made to the Chairman of the group.
14 At the same time the European Democratic Union Group asked the
Secretary-General of the European Parliament to postpone the expiry of the
notice terminating the applicant's contract of employment until 16 September 1968, in view of the fact that because of his work he had been unable to take all the leave to which he was entitled.
15 By letter dated 10 June 1968 sent to the Parliamentary Secretary of the
European Democratic Union Group, the Secretary-General of the European Parliament stated that he had noted the new date on which the contract of
employment was to expire and that he would have regard to it in spite of
certain reservations which he had as to whether the extension was in accordance with the applicable provisions of the Staff Regulations.
16 As a result the Director-General of Administration of the European Parliament forwarded to the applicant by letter dated 19 September 1968 the
account of the severance grant due upon termination of the contract of
employment on 16 September 1968.
17 The applicant has brought his action mainly against the letter from the
Director-General of Administration dated 19 September 1968, and
alternatively against the implied decision of rejection of the complaint lodged on 10 June 1968 with the President of the European Parliament in respect of
the letter of termination dated 12 March 1968.
SCHERTZER v PARLIAMENT
18 The European Parliament, taking the view that the decisive measure is the letter of termination dated 12 March 1968, has contested the admissibility of the action on grounds of delay.
19 Although it is true that the letter of termination dated 12 March 1968 from the European Democratic Union Group must be regarded as having alone
given rise to the claim in the action, the effect of the delay in instituting proceedings should not be strictly applied to the applicant in view of the
difficulty which he experienced in identifying the authority competent to receive his complaint and the uncertainty with regard to the period of notice
which resulted from the extension requested on his behalf by the European Democratic Union Group and granted by the Secretary-General of the
Parliament.
20 In these circumstances the wrongly addressed complaint of 10 June 1968
may be regarded as having preserved the applicant's right of action.
21 The action is therefore admissible.
Substance
22 The applicant puts forward four substantive submissions, based on the lack of competence of the authority which decided his dismissal, infringement of
provisions governing the employment of staff, lack of a statement of reasons for the decision taken with regard to him and misuse of powers.
23 In assessing those submissions it is proper to recall that the basis of the
applicant's relationship with the defendant institution and with his immediate employer, the European Democratic Union Group, was a 'contract of employment as a member of the temporary staff, signed on 29 January 1965, between the applicant and the Chairman of the European Democratic Union
Group acting in the name of the European Parliament.
24 Under that contract the applicant was engaged 'subject to the provisions of
the Conditions of Employment of Other Servants of the Communities as a
member of the temporary staff and classified in Grade 3 of Category A.
JUDGMENT OF 18. 10. 1977 - CASE 25/68
25 The contract was concluded 'for an indefinite period'
subject to termination
by the months'
three on notice employer and one month's notice by the person concerned — without prejudice to Articles 48, 49 and 50 of the
Conditions of Employment of Other Servants which provide for immediate dismissal.
The submission as to lack of competence
26 The applicant maintains that to have legal effect the letter of termination
dated 12 March 1968 should have been signed in the name of the European
Parliament by the appointing authority and not by the Chairman of a
political group, especially as his contract of employment was signed at the
time by the Chairman of the European Democratic Union Group acting 'on behalf of the European Parliament'.
27 It is not contested that by decision of the Bureau of the Parliament dated 12 December 1962 the power to conclude and terminate contracts of
employment was delegated to the political groups in respect of staff placed at
their disposal.
28 The applicant cannot therefore contest the power of the Chairman of the
European Democratic Union Group to terminate a contract concluded by his predecessor in the same capacity.
29 This submission must therefore be rejected.
The submission based on an infringement of the provisions governing the
employment of staff
30 The applicant claims that since his contract was extended following the letter of termination dated 12 March 1968 a new period of notice should have been
set, and that Article 47 of the Conditions of Employment of Other Servants was infringed since paragraph (2) thereof provides that where the contract is for an indefinite period the employment shall cease at the end of the only period of notice stipulated in the contract.
SCHERTZER v PARLIAMENT
31 The letter of termination dated 12 March 1968 clearly shows the intention of
the European Democratic Union Group to terminate the applicant's
employment.
32 This intention to terminate is confirmed by the fact that the applicant was not required to discharge his duties during the period of notice.
33 The steps taken by the European Democratic Union Group to obtain on
behalf of the applicant an extension following of this period of remuneration
his suspension from his post cannot be regarded as a revocation of a formally worded dismissal.
34 The submission must therefore be rejected.
Lack of a statement of reasons
35 The applicant claims that the letter of termination dated 12 March 1968 contains no mention of the reasons for the termination of his employment.
36 He states that that decision is accordingly contrary to the second sentence of the second paragraph of Article 25 of the Staff Regulations which provides
that: 'Any decision adversely affecting an official shall state the grounds on which it is based', since the applicant may rely on that provision in view of the first paragraph of Article 11 of the Conditions of Employment of Other Servants, which provides: 'Articles 11 to 26 of the Staff Regulations, concerning the rights and obligations of officials, shall apply by analogy ...'
37 In addition, the applicant refers in this respect to considerations relating to the characteristics of contracts of employment and the guarantees as to
security given to members of staff recruited under contract, which
considerations by the Court in its judgments of 15 July 1960 in were set out
Cases 43, 45 and 48/59, von Lachmüller and Others, and 16 December 1960 in Case 44/59, Fiddelaar, (Rec. 1960, pp. 933 and 1077 respectively).
38 Article 47 of the Conditions of Employment of Other Servants provides that
the employment of temporary staff shall cease, where the contract is for a
JUDGMENT OF 18. 10. 1977 - CASE 25/68
fixed period, on the date stated in the contract and, where the contract is for an indefinite period, at the end of the period of notice stipulated in the
contract.
39 The justification for the unilateral termination of a contract of employment,
expressly provided for in the aforementioned provision and, in addition, recognized by the applicant at the time of his recruitment, is to be found in the contract of employment and therefore reasons do not have to be stated for it.
40 In this respect the position of the applicant is fundamentally distinct from that of an official under the Staff Regulations, such that there is no basis for
the analogy which justifies and limits the reference contained in Article 11 of
the Conditions of Employment of Other Servants to certain provisions of the
Staff Regulations.
41 It is not possible to counter this legal assessment with considerations drawn from the period prior to the adoption of the Staff Regulations, when
contractual relations were the general rule and were intended as a whole to be consolidated subsequently within the framework of the Staff Regulations.
42 Considerations of this nature are therefore irrelevant since this case is concerned with the assessment of the position of a member of staff recruited
for a particular purpose of an essentially political nature, as defined in Article 2 (c) of the Conditions of Employment of Other Servants.
The submission of misuse of powers
43 Finally, the applicant refers to a number of factors alleged to show that his dismissal was ordered for reasons alien to the interests of the service and
'a disguised him. sanction'
constitutes against
44 In spite of the very favourable assessment of his work reported in the minutes
of the European Democratic Union Group and in documents said to have been sent to him, the decisive reason for his dismissal is alleged to have been to provide a post for a member of the group, a former Member of the
Parliament who had not been re-elected.
SCHERTZER v PARLIAMENT
45 In accepting a post with very special characteristics such as that of General
Secretary of a Parliamentary group the applicant must have been aware of the political factors and risks which were involved both in his recruitment and
his subsequent dismissal.
46 The complaints made by him against his former employer do not reveal any breach of contract on the part of the group to which he was posted.
47 Nor can his dismissal be described as a 'disguised sanction'
when it represents
merely the exercise of a contractual right which the parties reserved when the
contract of employment was concluded.
48 This submission must therefore be dismissed.
49 For all the abovementioned reasons both the application for a declaration that the dismissal, the subject-matter of the letter of 12 March 1968, is null and
void and the claim for damages in respect of non-material loss must be dismissed.
Costs
so Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
51 The applicant has failed in his submissions.
52 However, under Article 70 of the Rules of Procedure, the costs incurred by the institutions in actions brought by servants of the Communities are to be borne by the institutions.
53 By order of 28 April 1977 the Court (Second Chamber) granted the applicant legal aid.
54 In application of Article 76 (5) of the Rules of Procedure it is appropriate to
order the payment to the cashier of the Court of the amount advanced by way of legal aid.
OPINION OF MR MAYRAS - CASE 25/68
On those grounds,
THE COURT (Second Chamber)
hereby:
1. Dismisses the application;
2. Orders the parties to bear their own costs. The applicant is ordered to refund to the Court the amounts advanced by it as legal aid.
Pescatore Mackenzie Stuart Touffait
Delivered in open court in Luxembourg on 18 October 1977.
A. Van Houtte P. Pescatore
Registrar Acting President of the Second Chamber
OPINION OF MR ADVOCATE-GENERAL MAYRAS DELIVERED ON 22 SEPTEMBER 1977 1
Mr President, In the absence of a budgetary post he Members of the Court, was first of all given a contract as a
member of the auxiliary staff and then Mr Andre Schertzer entered the on 1 January 1965 he was made a employment of the Council of Ministers temporary servant under a contract
of the European Communities on 1 July signed by the Chairman of the group and 1963 in Grade B 2, third step. classified in Grade A 3, fourth step.
He was seconded by that institution to That is to say that he exchanged an
the European Parliament on 1 June 1964 established post, with the guarantees of
to be Administrative General Secretary of stability which that involves, for a
the Non-attached political group, which precarious post, since his contract as a
subsequently became the European temporary servant could, under the
Democratic Union Group. regulations applicable to other servants,
I — Translated from the French.