C-39/69

In Case 39/69

Bernard Fournier, a member of the temporary staff of the Commission of the European Communities, represented by Philippe Waquet, Advocate, residing at 36, avenue Georges-Mandel, Paris, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Avocat-Avoué, 34 bis, rue Philippe-II,

applicant,

ν

Commission of the European Communities, represented by its Legal Adviser, Louis de la Fontaine, with an address for service in Luxembourg at the offices of Émile Reuter, Legal Adviser to the Commission, 4, boulevard Royal,

defendant,

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure (Schedule II to the statement of defence), and accordingly an order for payment The applicant was taken into the service of was issued in favour of the applicant on 28 the Commission with effect from 1 Septem­ March 1969 (Schedule III to the statement ber 1964 as a member of the auxiliary staff of defence) and sent to the official respon­ in Group A I, Step 2, and was appointed a sible for financial control for prior approval. member of the temporary staff in Grade 1, This approval was refused in a memoran­ Step 3, on 31 December 1968. dum of 8 April 1969 (Schedule VI to the When he finished his employment as an statement of defence), the reason given auxiliary servant he had due to him 47 days' being that the requirements of the service leave not taken owing to the requirements of which prevented the applicant from taking the service and for these he requested finan­ all his leave in 1968 should be explained in cial compensation as provided for by more detail and that the days of leave not Article 58 of the Conditions of Employ­ taken should be carried forward to 1969 ment of Other Servants, which provides instead of being paid for, because the appli­ that 'Where it has not been possible, owing cant had remained in the service of the to the requirements of the service, for a Commission even though he was now in a member of the auxiliary staff to be given different capacity from that of auxiliary leave... during his employment, any days of servant.

the number of days' leave not taken should 1. The legal basis of the decision challenged be carried forward to 1969 under the con ditions applicable to all the officials in the The applicant claims that since, when his service. These provisions entitled the appli employment as an auxiliary servant came to cant, according to the Commission, to carry an end he had still 47 days' leave to take and forward a total of 29 days' leave into 1969. they had not been taken owing to the require The applicant lodged the present applica ments of the service, he is entitled to finan tion on 11 August 1969. cial compensation as provided for by The written procedure followed the normal Article 58 of the Conditions of Employment course. of Other Servants. The Court (First Chamber) decided after The defendant does not deny that it was the hearing the views of the Advocate-General requirements of the service which prevented and the report of the Judge-Rapporteur to the applicant from taking his leave before open the oral proceedings without any 31 December 1968.

This interpreta (1) Annul the decision of 13 May 1969; tion is based on the social purpose of leave, for the person who remains in the service of (2) Having done so, order the Commission the institution continues to be in a legal of the European Communities to pay position which allows him the benefit of Mr Fournier the sum of seventy-seven leave not taken during the preceding year. thousand and ninety-three Belgian It follows that a member of the auxiliary francs with the interest fixed by law, as staff appointed to the temporary staff or compensation for 47 days' leave not appointed as an official can no longer claim taken owing to the requirements of the payment for leave not taken but must have service during the period of his employ the leave carried forward to the following ment as an auxiliary servant ; year. Since there is no provision in the Staff (3) Order the Commission of the European Regulations for such carrying forward in Communities to pay all costs. the case of auxiliary servants who, at the end The defendant contends that the Court of their employment, continue to work for should: an institution, the first paragraph of Article 4 of Annex V to the Staff Regulations was — dismiss the application as unfounded, applied by analogy, in accordance with the provisions of the internal administrative — order the applicant to pay the costs. measures which appeared in Staff Courier No 41 of 7 November 1968, to all servants of

JUDGMENT OF 13. 5. 1970 — CASE 39/69

categorical and precise. General for Industrial Affairs told him that The soundness of his own interpretation approval was refused him as a result of his was in any case, he says, confirmed by the making an application to the Court of Director General for Personnel who, in his Justice (Case 18/69). memorandum of 28 March 1969, acknowl The alleged absence of justification for this edged that Article 58 expressly uses the was, he says, originally, the main reason for words 'during his employment', whilst in the refusal of approval on 8 April 1969. the case of officials and temporary staff the The fraudulent nature of this conduct is words used are 'leaving the service'. obvious since the defendant has been forced In the absence of any provision for co to acknowledge expressly in its defence that ordinating the two sets of regulations, leave on 31 December 1968 the applicant still had to which a servant is entitled should be com 47 days' leave not used up owing to the pensated for in accordance with Article 58 requirements of the service. and the Commission cannot thwart this This fraudulent conduct can be the only ex express provision by invoking the internal planation for a refusal otherwise incompre administrative measures which appeared in hensible, since the refusal runs contrary to Staff Courier No 41 of 7 November 1968. favourable decisions taken by three divi In any event the analogy with the author sions within the Commission (Personal itative provision on which the defendant Rights, Staff Regulations and Disputes out relies is a myth since the first paragraph of of Court, Remuneration Allowances). Article 4 of Annex V to the Staff Regula The defendant''s reply is that the arguments tions relates to leave not used up for reasons relied on by the applicant are of a personal 'other than the requirements of the service' nature and should be rejected because no and does not therefore apply. shred of proof is given for them and, es Besides that there is nothing in the condi pecially, because they played no rôle what tions of employment of auxiliary staff soever in the decision of the Director which prevents them from accumulating General for Personnel and Administration leave entitlement for days not taken owing of 13 May 1969. to the requirements of the service.

FOURNIER ν COMMISSION

Even without production of the certificate challenged here. required the decision challenged would have The defendant replies that the applicant's been sufficiently founded on the ground of claim is based on his inadequate acquaint­ the continuance of the employment rela­ ance with the provisions of Financial Regu­ tionship. lation No 68/313. The provisions of this regulation show 3. Rights created by the decision of 28 clearly that : March 1969 — the memorandum of 27 January 1969 is It is further claimed by the applicant that the merely a request for compensation for denial by the Commission of the European days of leave not used; Communities that the applicant's leave — the memorandum of 28 March 1960, No entitlement should be granted in the form 4091-9, amounts in substance to a of compensation is neither admissible nor proposal to the Head of the Remunera­ well founded since it has expressly accepted tion and Allowance Division for the and ratified such a course of action. issuing of a payment order subject to the In fact the Administration accepted his conditions contained in Article 39 of request of 27 January 1969 when it sent the Financial Regulation No 68/313. memorandum of 28 March 1968 to the Head of the Remuneration and Allowances Since it is a proposal it can in no way be said Division. This note amounts to an individual to have the character of a decision, being decision which created rights for the appli­ merely a measure preparatory to payment cant and cannot be annulled by the decision of compensation.

JUDGMENT OF 13. 5. 1970 — CASE 39/69

to take was referred, in accordance with Article 31 of the Financial Regulation of the Communities of 30 July 1968 to the Director General for Personnel and Ad­ ministration, as the authorizing officer in connexion with the expenditure ; but he refused the compensation.

5 That decision amounts to an act capable of adversely affecting the applicant.

6 The application is therefore admissible.

Substance

7 Under Article 58 of the Conditions of Employment of Other Servants, where it has not been possible, owing to the requirements of the service, for a member of the auxiliary staff to be given leave during his employment, any days of leave not taken shall be paid for as extra days worked.

13 In the circumstances a reasonable expectancy that leave could be carried forward would be, at the least, subject to chance, so that the underlying purpose of Article 58 of the Conditions of Employment of Other Servants retain their force in the present case.

14 Accordingly there is no need to examine the legality of the communication of 7 November 1968 limiting the amount of unused leave which could be carried for­ ward to 29 days, as it is inapplicable in this case.

15 The application for annulment is well founded.

16 It is not denied that the applicant had, on 31 December 1968, a total of 47 days' leave which he had not been able to take owing to the requirements of the service.

17 According to the applicant, the compensation amounts to a total of Bfrs. 77 093, which has not been contested by the defendant.

18 In the circumstances he is entitled to that sum and in addition as requested in the application to interest thereon assessed in this case at 4.5 % from the date on which the application was lodged.

Having regard to the Staff Regulations of Officials and the Conditions of Employ­ ment of Other Servants; Having regard to the Protocol on the Statute of the Court of Justice of the European Community ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT (First Chamber)

hereby :

1. Annuls the decision of 13 May 1969 of the Director General for Personnel and Administration;

2. Orders the Commission of the European Communities to pay the applicant the sum of seventy-seven thousand and ninety-three Belgian francs, with interest thereon at 4.5% from the date on which the application was lodged;

3. Orders the defendant to pay the costs.