C-17/78
ECLI:EU:C:1979:24
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JUDGMENT OF THE COURT (SECOND CHAMBER) OF 1 FEBRUARY 1979<appnote>1</appnote>
Fausta Deshormes, née la Valle v Commission of the European Communities
Case 17/78
1. Officials — Applications to the Court — Decisions on contingent pension rights — Interest in taking proceedings (Staff Regulations, Art. 91)
2. Temporary staff — Auxiliary staff— Difference — Whether post permanent or not (Conditions of Employment of Other Servants of the European Communities, Arts. 2 (b) and 3)
1. Although it is true that before 2. The difference between temporary retirement, an uncertain future event, staff (within the meaning of Article 2 pension rights are contingent rights (b) of the Conditions of Employment which are in process of creation from of Other Servants of the European day to day, it is none the less clear Communities) and auxiliary staff lies that an administrative act deciding in the fact that a member of the that a period of employment cannot temporary staff fills a permanent post be taken into account for the calcu- included in the list of posts of an lation of years of pensionable service institution, whereas, except in the case immediately and directly affects the of temporary replacement of an legal situation of the person concerned even if that act is to be official, a member of the auxiliary implemented only subsequently. staff performs administrative work Therefore the official has a legitimate, without being assigned to a post present and vested interest in taking included in the said list.
proceedings against such an act.
In Case 17/78
Mrs Fausta DESHORMES, née la VALLE, an official of the Commission of the European Communities, residing at 13 A Drève du Caporal, Brussels, represented by Marcel Grégoire and Edmond Lebrun, Advocates at the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, Advocate, 83 Boulevard Grande-Duchesse Charlotte,
applicant,
1 — Language of the Case: French.
JUDGMENT OF 1. 2. 1979 — CASE 17/78
v
Commission of the European COMMUNITIES, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg,
defendant,
APPLICATION for an order that, for the calculation of the applicant's years of pensionable service for the purpose of her retirement pension, the defendant institution must take into account her periods of employment under contract as an expert and as a member of the auxiliary staff before she was established, and for the annulment of the decision rejecting the related complaint,
THE COURT (Second Chamber)
composed of: Lord Mackenzie Stuart, President of Chamber, M. Sørensen and A. Touffait, Judges,
Advocate General: G. Reischl
Acting Registrar: J. A. Pompe
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the Division of the Press and Information
procedure and the conclusions, Service of the Communities. She was
submissions and arguments of the parties appointed a probationer on 7 February may be summarized as follows: 1973, and established on 1 September 1973; previously her official position had been governed by contracts (5 contracts I — Facts and written procedure — including renewals — as an expert from 1 January 1961 to 28 February Mrs Deshormes took up employment 1964; 11 contracts — including renewals with the Commission of the EEC on — as a member of the auxiliary staff 1 January 1961 in the University Infor- from 1 March 1964 to 31 December
mation, Youth and Popular Education 1968; 3 contracts — including renewals
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— as a member of the temporary staff retirement pension, the said periods from 1 January 1969 to 31 December of employment are to be assimilated 1971; and 2 contracts — including to periods of employment as an renewals — from 1 January 1972 to 30 official or at least as a member of
November 1972). the temporary staff; On 18 July 1977 Mrs Deshormes wrote 3. Order the defendant to take into to the President of the Commission to account for the calculation of the
submit a complaint under Article 90 (2) applicant's years of pensionable of the Staff Regulations against a note service for the purposes of her from the Director of Personnel rejecting retirement pension the periods of her request for her years of employment employment from 1 January 1961 to with the Commission as an expert and as 31 December 1968 and from
a member of the auxiliary staff to be 1 January 1972 to 30 November taken into account for the calculation of 1972;
her pension rights. The administration 4. Annul the implied decision rejecting registered this complaint on 20 July 1977 the applicant's complaint registered and rejected it by implied decision; on 20 July 1977; whereupon Mrs Deshormes brought this action, by an application lodged at the 5. Order the defendant to pay the costs." Court Registry on 17 February 1978. On 16 February the applicant received a In its defence the defendant contends that letter from the Commission explicitly the Court should: rejecting her complaint. The written procedure followed the "1. Dismiss the application as inadmissible; normal course. After hearing the report of the Judge-Rapporteur and the views 2. At all events dismiss it as of the Advocate General, the Court unfounded."
(Second Chamber) decided to open the oral procedure without any preparatory In her reply, the applicant made the inquiry. following claims:
"— The applicant asks the Court, primarily, to uphold the claims put II — Conclusions of the parties forward in the application, and to rule, so far as may be necessary, In her application, the applicant claims that the periods of employment that the Court should: from 1 January 1961 to "1. Declare the application to be 31 December 1968 and from 1 admissible and well founded; January 1972 to 30 November 1972 must be taken into account for the 2. Rule that the legal designation of the calculation of the applicant's years contracts entered into by the of service within the meaning of the defendant with the applicant for the first paragraph of Article 77 of the periods of employment from Staff Regulations, or must at least 1 January 1961 to 31 December be assimilated to such years of 1968 and from 1 January 1972 to 30 November 1972 is that of service;
contracts for the appointment of — in the alternative, before ruling on temporary staff or, alternatively, the substance of the case, to give the decide that, for the calculation of the applicant leave to produce evidence applicant's years of pensionable in any form permitted by the service for the purposes of her law, including witnesses, to the
JUDGMENT OF 1. 2. 1979 — CASE 17/78
effect that during the period from within the prescribed period against 1 January 1961 to 28 February 1964 the implied decision of rejection when she was purportedly employed which resulted from the
as an expert, she worked for the administration's silence over her defendant full time and in a claims made in August 1976. relationship of subordination, and in particular that she was subject to the The applicant replies that: same instructions for her work and — She does have an interest in taking to the same administrative rules as proceedings against an act which an official;" decides that a certain period of past and gave the names of four possible employment cannot be taken into witnesses. account for the calculation of her
years of pensionable service and In its rejoinder, the defendant maintained which immediately and directly its previous conclusions. affects her legal position, even if that act is only to be implemented sub- sequently, because pension rights are III — Summary of the sub- acquired in a state of active missions and arguments of employment. It is according to the the parties decision taken during his active employment that an official will be A — Admissibility prompted, before it is too late, to make or not to make supplementary The defendant submits that the personal arrangements for his application is inadmissible on three pension. grounds: — Of the acts capable of adversely — The applicant's interest is merely affecting the applicant, one is contingent and therefore is not undisputable, namely the implied present and vested, because she decision rejecting the applicant's cannot yet justify her potential status complaint. Consequently discussion as an official entitled to a retirement of the nature of Mr Pratley's and Mr pension; Baxter's letters is irrelevant. — The administrative acts cited and — As regards observance of the produced by the applicant (the letters limitation periods, it must be pointed from Mr Pratley and Mr Baxter) are out that the defendant seeks to use administrative information or this as a means of restricting the preparations for a possible decision applicant to a choice between coming and are no more than information before the Court either too soon — if relating to the administration's the letters are only information — or intentions or resolutions regarding a too late — if they are acts adversely possible decision; therefore it is affecting the applicant. A first note doubtful whether they are acts dated 13 August 1976 did not adversely affecting the applicant; constitute a formal request within the — In the alternative, if those acts are meaning of Article 90 (1) of the Staff found to be such, it is to be noted Regulations but was nothing more that the applicant allowed the than a note, and to that extent the limitation periods to expire, first in partial failure to reply to that note that her complaint against Mr Pratley's letter was not submitted until ten months after that letter, and secondly in that she failed to appeal
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within the four month period cannot staff. In fact, in pursuance of those constitute an implied decision contracts the applicant "occupied full rejecting an application. Finally, the time and in a relationship of subordi- two letters in question should be nation a permanent post included regarded as forming a single entity since 1963 in the list of posts inasmuch as the administration's appended to the section of the budget attitude regarding all the applicant's relating to the defendant", a legal claims can be ascertained only from definition which corresponds to that both of them together, and therefore of contracts for the employment of the official should be allowed to members of the temporar)' staff. carry out a single procedure after Consequently, the defendant disre- receipt of the second letter. garded the principle according to which the legal designation of The defendant rejoins that: contracts prevails over the — According to the case-law of the designation given by the parties. Court to the effect that an official in — First, if the Court does not designate one capacity does not have sufficient these contracts as contracts for the interest to bring proceedings before employment of a member of the the Court regarding the rights in temporary staff, the defendant was another capacity, this application not legally entitled to make use of would be admissible only if the the applicant's services by a contract applicant could now claim to have for the employment of an expert then the capacity of a former official. of a member of the auxiliary staff, Therefore the applicant has only subsequently renewed after a period contingent rights which are in of engagement as a member of the process of creation and are subject to temporary staff. Secondly, the the contingency of her becoming defendant was guilty of a wrongful entitled to a pension. act or omission by failing to regu- — The letters of 14 September 1976 and larize the applicant's situation when 30 June 1977 cannot form the subject- it had the opportunity to do so. matter of an appeal, as they are mere — This caused the applicant damage, declarations of intent. However, if for which she claims compensation. they did constitute enforceable — In the alternative, the periods of decisions, the appeal would have had work carried out for 12 years under to be directed against them and not the same conditions as those against the decision rejecting the applicable to an official should be complaint in order to be admissible. assimilated to periods of employment — The contents of the complaint do not as a member of the temporary staff. permit its nature to be disputed, and Consequently, the refusal to take it was out of time, which confirms these periods of employment into account for the calculation of the the defendant's first line of argument. years of pensionable service constitutes a breach of the principles B — Substance of the case of equity, equality of treatment, The applicant argues that: justice and good administration.
— The contracts concluded between the
applicant and the defendant were unlawfully designated as contracts for the employment of an expert, then of a member of the auxiliary
JUDGMENT OF 1. 2. 1979 — CASE 17/78
The defendant contends that: application of principles such as equality — The difference between a member of of treatment or equity for the purpose of the temporary staff and a member of bringing into account periods of service as a member of the auxiliary staff would the auxiliary staff does not lie in the existence or a relationship of subordi- give rise to reverse discrimination nation but in the fact that the former contrary to positive law in relation to fills a permanent post included in the persons currently in receipt of a pension. list of posts, whereas the latter The applicant replies that: performs his work without being — As regards the period from 1 January assigned to a post included in that list. 1961 to 28 February 1964, the defendant itself admitted the
existence of a relationship of subordi- Therefore, in her situation, the applicant cannot claim the status of a member of nation. Furthermore, since 1963 the applicant has carried out the duties the temporary staff either for the period corresponding to a permanent post from 1 January 1961 to 28 February included in the list of posts. It follows 1964 or for the periods covered by the from these two facts that the contracts of employment as a member of designation of the contract is as a the auxiliary staff. contract for the employment of a First, there is no necessary causal member of the temporary staff. connexion between the damage allegedly resulting through the period from — As regards the periods from 1 March 1964 to 31 December 1968 and from January 1961 to February 1964 not being counted for the purpose of retirement 1 January 1972 to 30 November pension and the alleged unlawful act or 1972, the objection based on the fact omission consisting in employing the that the post was no longer vacant applicant under an expert's contract. after the competition fails in fact, because even though a candidate was Secondly, the fact of having been appointed to the post, the applicant appointed a member of the auxiliary staff continued alone to carry out the after three years as a member of the duties corresponding to it. temporary staff is not contrary to the provisions of the second paragraph of — Therefore the applicant stands by the Article 8 of the Conditions of position she has taken up on the legal Employment of Other Servants of the designation of the contract at issue and of her contractual situation European Communities. Whilst it is admitted that a situation in which, for the two periods of which the status as a member of the employment as a member of the auxiliary staff, was that of a member auxiliary staff is extended beyond one of the temporary staff. year constitutes an illegality, this does not imply that there is a duty on the part — According to a line of argument of the Commission to make good, at identical to that in the first least to the extent claimed by the submission, the illegality constitutes a applicant, damage which is purely wrongful act because in relation to hypothetical. the applicant the defendant evaded Finally, the defendant cannot be accused the obligations incumbent upon any of having failed to fulfil its duty to assist employer, in particular as regards an employee or of any wrongful act or providing for a pension. A breach of omission. duty to assist an employee and a The fact that the applicant performed wrongful act or omission on the part her duties under the same conditions as of the Commission result from the
an official does not allow equation with very abnormality of the applicant's that status. Finally, too broad an precarious situation.
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— The causal connexion between these — There is inconsistency between the wrongful acts and the damage — wrongful act alleged — the fact of which is present and certain — is not having fulfilled the duties clear, since the applicant is incumbent upon every employer — demanding compensation for this and the compensation claimed — failure to regularize the situation, taking the period covered by the which gives rise to unjust enrichment experts' contracts into account in the on the part of the defendant. pension scheme under the Staff Regu- — The exceptional situation which the lations. The Commission does not applicant is in justifies the application deny the illegalities of which it is of the principle of equity guilty, namely entering into an acknowledged by the Court expert's contract involving a (judgment of 15 March 1973 in Case relationship of subordination and 37/72 Marcato [1973] 1 ECR 361). keeping the applicant employed for — The argument that to adopt such a many years as a member of the solution would lead to a breach of auxiliary staff, but submits that in the positive law and reverse discrimi- absence of evidence produced by the nation cannot be accepted. applicant these illegalities do not constitute wrongful acts or omissions On the three submissions made, the defendant rejoins that: on the part of the Commission.
— If the contracts as an expert are — The Commission is ready to arrange legally designated as contracts of retroactively for the applicant's employment, transposition to the membership of the Belgian social context of the Staff Regulations does security scheme. not necessarily mean that they are to be regarded as contracts for the — It would be too broad an application employment of temporary staff rather of the principles of justice and equity than as contracts for the employment to grant the applicant rights of auxiliary staff. pertaining to the status of an official — According to the case-law of the on the ground that she has carried Court (Case 18/63 [1964] ECR 85, out permanent duties in the same at p. 100) the facts cannot prevail way as an official. over the law and over the legal designation of a contract. Thus the fact that the applicant carried out IV — Oral procedure tasks corresponding to those of a permanent post does not allow her to The parties presented oral argument at be regarded as occupying such a the hearing on 9 November 1978, and post, and this situation is confirmed they answered questions put by the by the fact that during the period Court. under consideration her emoluments
were charged under the budgetary The Advocate General delivered his
chapter entitled "member of the opinion at the hearing on 14 December auxiliary staff". 1978.
JUDGMENT OF I. 2. 1979 — CASE 17/78
Decision
1 The applicant was recruited on 1 January 1961 to occupy a post in the University Information, Youth and Popular Education Division of the Press and Information Service of the ECSC corresponding to the grade of principal administrator.
2 Since then she has been and still is carrying out the same duties and assuming the same responsibilities in the same service, which has since been attached to the Commission.
3 From 1 January 1961 to 28 February 1964 she was bound to the Commission by a contract as an expert which was renewed five times; from 1 March 1964 to 31 December 1968 by a contract as a member of the auxiliary staff within the meaning of Article 3 of the Conditions of Employment of Other Servants of the European Communities (hereinafter referred to as the "Conditions of Employment") (Category A, Group 1, Step 1, then Step 2 as from 1 March 1966), renewed eleven times; from 1 January 1969 to 31 December 1971 by a contract as a member of the temporary staff within the meaning of Article 2 (Category A, Grade 5, Step 3), renewed three times; from 1 January 1972 to 30 November 1972 by a contract as a member of the auxiliary staff, renewed twice.
4 On 1 December 1972 the applicant was appointed a probationer and by a decision of 22 October 1973 she was established with effect from
1 September 1973.
5 On 18 July 1977 the applicant sent the President of the Commission of the European Communities, the appointing authority, a complaint under Article 90 (2) of the Staff Regulations requesting that her periods of employment as an expert and as a member of the auxiliary staff be assimilated to periods of employment as an official or a member of the temporary staff for the calcu- lation of her years of pensionable service for the purpose of her retirement pension.
6 In a letter of 15 February 1978 signed by a member of the Commission she was given the reply that the period in which she had served as an expert (1 January 1961 to 28 February 1964) still required comprehensive exami- nation, and with regard to the periods in which she had been employed as a
DESHORMES COMMISSION
member of the auxiliary staff (1 March 1964 to 31 December 1968 and 1 January 1972 to 30 November 1972) she was reminded that she had acquired pension rights in the Belgian pension scheme, to which the Commission had paid contributions.
7 In these circumstances the applicant applied to the Court on 17 February 1978 for the annulment of the decision rejecting her complaint and an order that, for the calculation of her years of pensionable service for the purpose of her retirement pension, the defendant must take into account the periods of employment from 1 January 1961 to 31 December 1968 and from 1 January 1972 to 30 November 1972, for the purposes of the first paragraph of Article 77 of the Staff Regulations.
Admissibility
8 The defendant makes three submissions as to inadmissibility:
9 It submits first of all that the applicant does not have any present, vested interest to assert or even any definite future interest because she is not entitled to challenge the principles governing the future payment of her pension in legal proceedings while she is in active employment, since only the actual payment of that pension, when it has occurred, can form the subject- matter of a court ruling.
10 Although it is true that before retirement, an uncertain future event, pension rights are contingent rights which are in process of creation from day to day, it is none the less clear that an administrative act which decides that a
particular period of employment cannot be taken into account for the calcu- lation of years of pensionable service immediately and directly affects the legal situation of the person concerned even if that act is to be implemented only subsequently.
11 The adoption of this first submission would mean that the applicant could ascertain her rights only at the time of her retirement, and would leave her until then in a state of uncertainty regarding her financial situation making her unable immediately to make tne necessary personal arrangements for her future as she sees it.
12 It follows that the applicant, whom the administration has placed in a complex situation as regards the course of her career, has a legitimate, present, vested and sufficiently clear interest in having an uncertain factor in her status decided forthwith by the Court.
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13 Therefore the first submission must be rejected.
14 The defendant makes a second submission, arguing that the applicant is merely concerned with acts not capable of immediately producing any legal effect because they come within the category of administrative information or preparations for a possible decision.
15 Therefore those acts do not adversely affect her, because they merely indicate intentions about a subsequent decisional act, and in these circum- stances the application is inadmissible.
16 Since the applicant has a legitimate, present, vested interest in her appeal being heard on the issue whether her periods of employment as an expert and as a member of the auxiliary staff are to be counted as years of pensionable service for the purpose of her retirement pension, there is no need to rule on the submission of inadmissibility based on the preparatory nature of the contested act, because it will be dealt with as part of the substance of the case along with all the factors in the case file.
17 It follows that the second submission is irrelevant and must be rejected.
is The Commission makes a third submission of inadmissibility on the grounds that the applicant failed to observe the limitation period laid down in Article 91 (2) of the Staff Regulations of Officials of the European Communities, which provides that an appeal to the Court of Justice is admissible only if a complaint has previously been submitted to the appointing authority within three months of the act adversely affecting the person concerned.
19 In the present case, that act consists according to the defendant, in the letter of 14 September 1976 from the Head of the Individual Rights and Privileges Division of the Directorate for Personnel stating in answer to the applicant's claims that it was impossible to count a period of employment as a member of the auxiliary staff for the purpose of retirement pension, and was not followed by a complaint from the applicant until 20 July 1977, that is to say ten months after the letter from the Directorate for Personnel and thus out
of time, which makes the application inadmissible on this point.
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20 The applicant also failed to observe the limitation period laid down in Article 90 (2) of the Staff Regulations, which is three months as from the date of expiry of the period prescribed for reply (namely four months from the date on which the request for a decision was made) where the complaint concerns an implied decision of rejection within the meaning of Article 90 (1).
21 By a letter of 13 August 1976, the applicant requested the Head of the Individual Rights and Privileges Division for her period of employment as an expert to be assimilated to periods of pensionable service as an official or a member of the temporary staff for the purpose of her retirement pension.
22 The complaint against the implied rejection of this request of 13 August 1976 was not lodged until 20 July 1977, therefore the subsequent appeal to the Court of Justice must be declared inadmissible pursuant to Article 91 (2) of the Staff Regulations.
23 It emerges from the document included in the case file that although in 1976 and 1977 letters passed between the administrative departments of the Direc- torate for Personnel and the applicant concerning her pension rights in relation to her periods of employment as an expert and as a member of the auxiliary staff, they were only acts coming within the category of administrative information, because they did not come from an appointing authority as required by the Conditions of Employment for establishing a decision.
24 The first act having the character of a decision within the meaning of Article 90 (1) of the Staff Regulations dates from 30 June 1977, comes from the Director of Personnel, and refuses to take the years of employment as an expert by the Commission into account for the calculation of pension rights acquired under the Community scheme.
25 The applicant brought a complaint against this act adversely affecting her before the President of the Commission of the European Communities on 20 July 1977 pursuant to and within the period prescribed by Article 90 (2).
26 The appeal lodged on 17 February 1978 on this issue was therefore not out of time, since it observed the period of four months prescribed by Article 90 (2) where a complaint receives no reply and is thus deemed to be rejected by
JUDGMENT OF 1. 2. 1979 — CASE 17/78
implied decision, added to the period of three months prescribed in Article 91 for the purpose of bringing the case before the Court.
27 The second act in the nature of a decision, signed by a member of the Commission and dated 15 February 1978, states that the applicant's periods of membership as a member of the auxiliary staff gave her pension rights under Belgian law and therefore could not give rise to Community pension rights.
28 This act, which moreover reserves the question of any rights acquired as an expert, constitutes a fresh decision, taken by an authority superior to the one which gave the first decision.
29 Since it does not merely confirm that decision, it replaces it.
30 Thus the appeal lodged on this issue on 17 February 1978 was brought within the period prescribed by the law.
31 It follows from all these considerations that the appeal is admissible.
Substance of the case
32 The applicant accuses the defendant of having unlawfully designated the agreement between them as contracts for the employment of a member of the auxiliary staff.
33 She maintains that since she was engaged to occupy full time and in a relationship of subordination a permanent post included in the list of posts appended to the section of the budget relating to the defendant when there was no question of replacing an official who was unable for the time being to perform his duties, those agreements should have been recognized as having the characteristics of a contract for the employment of a member of the temporary staff.
200-
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34 It is necessary to examine, on the one hand, the respective characteristics of contracts for the employment of auxiliary staff and contracts for the employment of temporary staff and, on the other, the duties performed by the applicant and the conditions under which she carried them out, and to draw the appropriate conclusions from this twofold examination as regards her administrative position.
35 Article 3 of the Conditions of Employment provides that "auxiliary staff" means staff engaged for the performance of duties in an institution but not assigned to a post included in the list of posts appended to the section of the budget relating to that institution, or staff engaged to replace an official who is unable for the time being to perform his duties and whose post could not be filled by temporary posting of another official.
36 Article 52 provides that the actual period of employment of auxiliary staff shall not exceed the period of temporary assignment for the purpose of replacing an official or a member of the temporary staff who is unable for the time being to perform his duties, or one year in all other cases.
37 Thus the characteristic of this contract is its precariousness in time, since it can be used only to effect a temporary replacement or to allow the per- formance of administrative duties which are of a transitory nature which fill an urgent need or which are not clearly defined.
38 Since the purpose of these conditions of employment is to arrange for occasional staff to perform duties which — by their nature or by virtue of the absence of a holder of the post — are precarious, it is clear that the said conditions of employment cannot be wrongfully used to assign such staff to permanent duties for long periods, and thus employ them abnormally at the cost of prolonged uncertainty.
39 Moreover, of the four kinds of temporary staff defined in Article 2 of the Conditions of Employment, the one found in the present case must be regarded as being that provided for in Article 2 (b), "staff engaged to fill temporarily a permanent post included in the list of posts appended to the section of the budget relating to each institution".
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40 This contract is characterized by the engagement of staff who are to perform well-defined, permanent, public service duties appearing in the organization plan of a Community institution, the posts of such staff being shown in a list of posts.
41 According to the second paragraph of Article 8 and for the same reasons as the contract for auxiliary staff, this contract is for a period of not more than two years and may be renewed not more than once for a maximum period of one year.
42 At the end of that time such staff shall no longer be employed as temporary staff: either their employment is terminated or they are appointed as officials.
43 The difference between auxiliary staff and temporary staff lies in the fact that a member of the temporary staff fills a permanent post included in the list of posts, whereas, except in the case of temporary replacement of an official, a member of the auxiliary staff performs administrative work without being assigned to a post included in the list of posts.
44 It therefore becomes necessary to look into the legal designation of the contracts between the applicant and the defendant, having regard to the duties performed by her and to the facts.
45 Her duties were defined as consisting in setting up European documentation centres in universities, organizing competitions for Community prizes, publishing theses, and arranging individual visits and group visits to the seat of the Community.
46 She took them up on 1 January 1961 and is still performing them at the present time, 18 years later; it can therefore be said that they are permanent, definite, Community public service duties.
47 Her contract designated as being with a member of the auxiliary staff began on 1 March 1964, but on 24 January 1963 the University and Cultural Affairs Division had been allocated a post of Principal Administrator
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A 5/A 4, the definition of which corresponded to the duties performed by the applicant and this post appeared in the list of posts appended to the section of the budget relating to that institution.
48 An open competition procedure to fill it was initiated by a notice published in the Journal Officiel of 18 January 1965.
49 Although the applicant was placed first on the list of suitable candidates drawn up by the selection board following the competition and was proposed for appointment by her Director General in particularly laudatory terms regarding the quality ofher work, her experience, her devotion to duty and the need to regularize her administrative situation, another candidate was chosen and was appointed to that post.
so This other candidate did not fill the post mentioned in the competition, and the duties corresponding to the post continued to be performed by the applicant.
51 Therefore it appears that at all events as from 1 March 1964, the date of her first contract as a member of the auxiliary staff, the agreement between the applicant and the Commission should have taken on the form of a contract for the employment of a member of the temporary staff, because the applicant had been assigned to a permanent post appearing in the list of posts appended to the budget.
52 The formal nature of the various contracts which the Commission then
offered the applicant in no way alters the fact that she performed the same duties until her establishment, which was merely a regularization of her over- long de facto situation as a temporary official.
53 Therefore the contracts entered into by the Commission with the applicant since 1 March 1964 must be regarded as having been entered into with a member of the temporary staff.
54 The defendant must act accordingly in calculating the applicant's years of pensionable service in relation to her periods of employment under the incorrect designation of member of the auxiliary staff.
JUDGMENT OF I. 2. 1979 — CASE 17/78
55 As regards the applicant's complaint concerning the pension rights for the period covered by the experts' contracts, since the defendant stayed the proceedings in order to carry out a comprehensive examination of the question on a general basis, as appears from the third paragraph of the letter of 15 February 1978 from Mr Tugendhat, the member of the Commission, it rests with the applicant to give the defendant notice for her complaint to be rejected by express decision or by implied decision according to Article 91 (2) and thereupon to take such steps as she considers appropriate.
Costs
56 Since the applicant has been successful in the major part of her submissions, the Commission must be ordered to bear all the costs.
On those grounds,
THE COURT (Second Chamber),
hereby rules :
1. All contracts entered into since 1 March 1964 by the Commission with Mrs F. Deshormes must be regarded as having been entered into with a member of the temporary staff.
2. The Commission must act accordingly in calculating the years of pensionable service of Mrs F. Deshormes.
3. The Commission is ordered to bear the costs of the action.
Mackenzie Stuart Sørensen Touffait
Delivered in open court in Luxembourg on 1 February 1979.
J. A. Pompe A. J. Mackenzie Stuart
Deputy Registrar President of the Second Chamber