C-61/74

V

COMMISSION OF THE EUROPEAN COMMUNITIES­ , represented by its Legal Adviser, Thomas F. Cusack, acting as Agent, with an address for service in Luxem­ bourg at the offices ofits Legal Adviser, P. Lamoureux, 4 boulevard Royal,

defendant,

Application for a declaration that the applicant had a contract as a member

of the temporary staff expiring on 31 July 1974 and that the Commission was not entitled to terminate that contract otherwise than in accordance with the conditions laid down by Article 47 et seq. of the Conditions of Employment of Other Servants of the European Communities and, consequently, for an

order for the Commission to pay to the applicant her salary from 1 November 1973 to 31 July 1974,

JUDGMENT

Facts

The facts and the arguments put forward 'I regret to have to inform you that your by the parties during the written conduct at work is judged not to have procedure may be summarized as appreciably improved. In fact, my follows: departments have been informed that

you are continually absent and that you

do not carry out your duties satisfactorily.

I — Facts and procedure Enclosed herewith you will find an extension*

position. card documents until mid-September 1973, Commission's depart­ by her'

prepared the when husband informed that was ments on the basis of the data in the there was post for his wife at her office personal file and contains personal and went to collect it. information on each official and servant. The applicant states in addition that she The applicant's card was headed Contract' never received the extension of the 'Expiration of on 31 July contract, referred to in the two letters. 1974. According to the way in which it The Commission states that it was sent 1 .

was worded, the card took effect on 1 On 12 ■

October 1973, the competent August 1973. It was dated 24 August authority at the Commission sent the 1973, that being the date on which it came out of the computer in Luxembourg. The Commission states 1 —

According to the copy in the applicant's personal that the card was not sent to the file, this document was worded follows: as

4 September 1973. 'I would ask you to take note that the appointing applicant until authorithy has decided to extend your contract

following: costs.

'You have a contract of employment as a The Commission that contends the member of the temporary staff expiring Court should: on 31 October 1973. — declare the applicant's application to I regret to have to inform you that it is be unfounded and consequently not possible to renew your contract dismiss it; date.' beyond that order the applicant to pay the costs. —

2. After asking by letter of 26 October 1973 for an explanation from the

Directorate of Personnel of the III — Submissions and argu­

Commission and, on 27 November 1973, ments of the parties meeting some officials of that

Directorate, the applicant submitted a In her application, the applicant complaint within the meaning of Article maintains to the that, according 90 of the Staff Regulations of Officials between the computer card, the position

order the Commission Commission's letter of 24 August 1973. consequently —

to pay to the applicant her salary The applicant claims that the decision to together with all appropriate terminate her employment on 31 October allowances from 1 November 1973 1973 was taken after the extension of her to 31 July 1974; contract to 31 July 1974.

JUDGMENT OF 15.4.1975 — CASE 61/74

She maintains that the administration, tion, this was because the administration

wishing to terminate her contract but had previously envisaged an extension

lacking the necessary conditions for for a year. At that stage of handling of dismissal, fabricated the story of the the applicant's file, the data on the

in Articles 47 50 this contradiction between two accordance with to of

the Conditions of Employment of Other documents, the applicant wishes the

Servants. In that case, it would have had Court to accept that a computer card

to for the decision, but the must prevail over a letter signed by the give reasons

letter 12 October 1973 Director of Personnel, clearly showing of gives no

except a reference to a contract his intention to renew the contract for a reasons period of three months. which never existed. In addition, the

1973, which states: '... I shall be of 24 and 28 August 1973, it is difficult obliged to terminate your contract'. If to be certain on this point. There was

there had been a contract for three perhaps an implied extension of

duration waiting for the months mentioned in that letter, the uncertain while

administration would have indicated that position to be regularized definitively. In the contract would not be renewed. But any event, before the end of August the

it was well aware that in order to get rid Commission did what it could to

of the a person under contract regularize the applicant's position. applicant, who was it would have to Although she did not receive the unwell, terminate that contract. extension of her contract duly signed by the competent authority she was at least In its statement of defence, the adequately informed of the decision Commission emphasizes that the concept taken with regard to her by the said of a contract is that of agreement letters of 24 and 28 August 1973. between at least two parties. In the

authority competent to decide upon the error in its departments, the Commission engagement of other servants of the did not send it to the applicant. Communities. In hypothesis A the applicant received a

In the applicant's case, this implied document which, if she had signed it extension took place as far as the herself and returned it, would have administration is concerned when it fed constituted employment legally perfect

the data from the file into the computer. both as to substance and to form. It took place as far as the applicant is Although she did not carry out that

concerned when she returned to work formality, she did nevertheless comply on 1 August 1973. The applicant does with the obligations laid down in that

not claim that the card constitutes a document, either by presenting herself at contract but evidence of the intention of work or by supplying medical

the administration to offer an extension, certificates indicating her willingness to

dismissal disguised for the needs of the If it were considered possible to envisage case as an administrative measure in the the conclusion of contracts otherwise form of a simple statement. This letter than in writing — which is not the case therefore amounts to a misuse of as these contracts contain terms which

necessity be powers. in writing must of specified

Finally, the applicant calls upon the — it would nevertheless be true that an

Commission to give reasons for the oral contract should, in respect of the

discrimination exercised against her as institution concerned, be concluded by compared with the case of another the competent authority.

member of the temporary staff. In that The defendant therefore strongly case, which is identical to that of the disputes that the mere 'intention of the applicant, the person concerned administration', whether express or remained in the end of the be service until implied, may accepted. Only the tacitly extended contract. person who has the power to conclude a In its rejoinder, the Commission looks contract also has the power legally to

letter of 12 October 1973 is one of The applicant refers to a document, disguised dismissal. Either the applicant entitled 'Extension of annexed contract', was granted an extension of her contract to the Commission's rejoinder. According to 31 October 1973, in the which case to her, a note made on that document to administration did not have to terminate the effect that 'this extension of contract the contract with effect from that date as rescinds and replaces that of 10 July 1973 it was in any event to expire on the said 5328 31 1974' — ref. — to July settles

date; or the applicant was granted an the dispute since it constitutes proof that extension to 31 July 1974, in which case the Commission had drawn up a contract the letter of 12 October 1973 must be of a year's extension before the expiration considered as having no effect, as it was of the prior contract. The applicant

written from a point of view which points out that this note appears on a

subsequently appeared as incorrect. document which bears the signature of

With regard to the alleged discrimination the appointing authority.

against the applicant as compared with The Commission replies in particular the case of another servant, the that the document in question is an Commission maintains that the raising internal measure and that the note does of a fresh issue in the course of not prove the existence of an actual proceedings is prohibited by Article 42 contract of a year's extension. In any (2) of the Rules of Procedure of the event, the competent authority sent only Court and that the issue is therefore one contract of extension to the inadmissible. The Commission shows, in applicant, namely the contract of three addition, that the two cases are not month's extension. identical. In the case of the other

Commission be ordered to pay to her her slary for the period from 1 November 1973 to 31 July 1974.

SANTOPIETRO v COMMISSION

It is appropriate, first of all, to establish whether the competent authority of

the Commission offered the applicant a renewal of her contract of emplyoment

for a period of one year.

4 Although the Commission's departments have had the intention of to'

personal information on the applicant could be interpreted as containing an

offer for the extension of her contract for a period of one year, that offer

would in any event have been revoked by the express offer of an extension of three months contained in the two letters of 24 and 28 August 1973.

7 Moreover it is established that the applicant received the computer card and

the two letters at the same time.

8 She therefore never had an offer of the extension of her contract for a period of one year, which she could have accepted.

JUDGMENT OF 15.4.1975 — CASE 61/74

commenced by servants of the Communities against institutions, institutions shall bear their own costs.

12 However, under the terms of Article 69 (3) the Court may in exceptional

circumstances order that the parties bear their own costs in whole or in part.

13 Because of the lack of clarity in the conduct of the Commission, both by reason of the delay with which it indicated its intentions with regard to the

applicant's administrative position and by reason of the contradictory parti­

2. Orders the Commission of the European Communities to pay th costs.

Mackenzie Stuart Kutscher Sørensen

Delivered in open court in Luxembourg on 15 April 1975.

A. Van Houtte Mackenzie Stuart

Registrar President of the Second Chamber