C-106/80

composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,

Advocate General : Sir Gordon Slynn Registrar: J. A. Pompe, Deputy Registrar

gives the following

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JUDGMENT

Facts and Issues

The applicant, Bernard Fournier, entered By an application lodged on 21 April the service of the Commission on 1969 the applicant brought an action 1 September 1964. His administrative before the Court of Justice of the status has been governed by a number of European Communities seeking an­ successive contracts and may be nulment of the Commission's implied summarized as follows: decision rejecting his claim for establishment as an official in Grade A 4. (a) Period covered by a series of contracts That application was dismissed as as a member of the auxiliary staff inadmissible (judgment of 13 May 1970, (1 September 1964 to 31 December Case 18/69 Bernard Fournier ν 1968) Commission [1970] ECR 249). Mr Fournier was recruited under a contract dated 12 August 1964 as The contract of 20 January 1969 was a member of the auxiliary staff for extended on several occasions, the last a period of six months starting on extension being from 3 June 1971 to 1 September 1964. He was placed in 31 December 1971. Category A, Group I, Class 2, and given the duties of a research assistant in the Directorate-General for External Re­ (c) Period covered by a series of contracts lations. By decision of the Commission as a member of the auxiliary staff of 2 March 1966 he was assigned to the (1 January 1972 to 31 December Directorate-General for the Internal 1972) Market, in the Industry, Craft Trades and Commerce Directorate, with effect from 1 January 1966. His contract as a Since no further extension of the last- member of the auxiliary staff was mentioned contract was possible by extended on several occasions, the last virtue of the second paragraph of Article extension being from 10 July 1968 to 31 8 of the Conditions of Employment December 1968. of Other Servants of the European Communities, Bernard Fournier was (b) Period covered by a series of contracts engaged under a contract dated 11 as a temporary servant (1 January January 1972 as a member of the 1969 to 31 December 1971) auxiliary staff in Category A, Group I, Class 2, for a period of three months Subsequently the applicant was engaged starting on 1 January 1972, to carry out under a contract dated 20 January 1969 research work. He was assigned, in that

(e) Establishment Upon expiry of the period prescribed in Article 90 (2) in fine, Mr Fournier By decision of 19 July 1973, adopted instituted these proceedings before the pursuant to Articles 1, 29 (2), 31, 32 and Court on 29 March 1980. 34 of the Staff Regulations, he was appointed a probationary official in Grade A 6, Step 3, and assigned as an In his application he alleged that the administrator to the Directorate-General Commission had placed him in an for Development and Cooperation, EDF uncertain and precarious position, that it Programmes and Projects Directorate, had employed him and continued to Training and Symposia Division, with employ him for tasks of a trivial nature effect from 1 May 1973. At the end which did not even correspond to his

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JUDGMENT OF 19. 11. 1981 — CASE 106/80

6. Order the Commission to pay the determination of his administrative status costs. in a category, grade and step consonant with his aspirations. The applicant did not receive the response to that request The Commission contends that the Court for which he had hoped. should: The defendant objects to this action on — Dismiss the application as inadmis- the ground that the applicant may not sible and, in any case, unfounded; obtain, by means of an action for and damages, an effect equivalent to advantages which were denied him by — Order the applicant to pay the costs. a decision against which an application for annulment has been adjudged inadmissible or against which no Upon hearing the report of the Judge- application was lodged within the pre- Rapporteur and the views of the scribed period. Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory In his reply, the applicant asserts that the inquiry. instances of wrongful conduct alleged against the defendant constitute a single whole and that certain grounds for At this stage, the proceedings relate to complaint are still continuing. He the admissibility of the claim for emphasizes that the most serious damage compensation and the substance of the suffered, namely, that relating to his claim that the period from 1 September state of health, is not such that a 1964 to 31 December 1965 should be judgment annulling any particular taken into account for calculation of the decision could have been a substitute for applicant's years of pensionable service. compensation.

in particular Articles 2 (b), and 3, the Although as from 1 January 1966 he was second paragraph of Article 40 and assigned to the Directorate-General for Article 52 (b), breach of the principle the Internal Market, all the subsequent whereby the legal nature of a contract contract extensions stipulated that the must prevail over the description given to working conditions and the other it by the parties, and breach of the provisions contained in the initial principles of equity, equality of contract of 12 August 1964 were to treatment, distributive justice and good remain unchanged. Included among administration. those other provisions is that relating to his duties: research assistant. In the applicant's view, that proves that the duties performed before 1 January 1966 The applicant states that also during the are of the same nature as those period of so-called auxiliary service he performed after that date, which the carried out permanent, well-defined, Commission had recognized to be Community public service duties, which permanent, well-defined, Community implies that the contracts concluded with public service duties. him in that period are to be regarded as having been concluded with a temporary servant (cf. judgment of 1 February 1979, Case 17/78 Deshormes v Com­ mission [1979] ECR 189). Moreover, the duties performed during that period were included in 1972 among the duties of officials. The duties performed by the applicant during the The Commission states that it is precisely period in question were taken over by an by applying the Deshormes judgment that official and were still being performed in it concluded that the period from 1972 (annex 74 to the application). 1 September 1964 to 31 December 1965 should not be taken into account in calculating the years of service within the meaning of the first paragraph of Article In its rejoinder, the Commission states 77 of the Staff Regulations. The that it inferred from the Deshormes Commission maintains that during the judgment (cited above) that it is period concerned the applicant carried necessary to take into account, for the out, under his contract as a member of purpose of the Community pension the auxiliary staff, essentially temporary scheme, periods of employment under tasks as a research assistant assigned to contract as a member of the auxiliary the Directorate-General for External staff to the following extent: Relations, with responsibility for studies relating to the external trade of the Community (annexes 8 and 9 to the defence). 1. Regardless of their duration, all contracts engaging as members of the auxiliary staff officials who fulfil precisely the conditions indicated by In his reply, the applicant states that the Court in the Deshormes case, that during the period at issue he was is to say officials : assigned to the Directorate-General for External Relations, where he performed the duties of research assistant, that is to say he carried out studies relating to the (i) who carried out exactly the same external trade of the Community. duties during their period as

members of the auxiliary staff as service duties appearing in the organ- after their recruitment as officials ization plan of a Community institution, or their engagement as temporary- the posts of such staff being shown in a servants occupying permanent list of posts.” The Commission merely posts, and wanted to make use for a short time of an “outside helper” (in German “Aus- (ii) were in fact entrusted with the hilfskraft”) for the purpose of carrying performance of duties corre- out administrative duties of a short-term sponding to permanent posts character, in particular work relating to vacant in the department to which a major study which had to be carried they were assigned, out by the Directorate-General for External Relations. are to be regarded as temporary servants’ contracts. According to the Commission, it is clear from the documents produced by it that 2. As regards officials who do not fulfil from 1 September 1964 to 31 March the above-mentioned conditions, but 1966, or at least until 31 December 1965, who have served as members of the date of his new posting, the applicant the auxiliary staff for more than actually carried out administrative duties 12 months: which might have been performed by a member of the auxiliary staff. The Commission states that, in the absence of — The part of the period of auxiliary documents establishing with sufficient service in excess of 12 months, precision the exact nature of the duties immediately preceding recruitment carried out by the applicant in the Direc- as an official or engagement as a torate-General for the Internal Market temporary servant occupying a between that date and the termination of permanent post, during which the his employment as a member of the servant undertook duties identical auxiliary staff on 31 December 1968, it to those undertaken after re- has presumed that those duties cruitment as an official or corresponded to permanent Community engagement as a temporary public service duties and, applying in a servant, is regarded as having been broad sense the principles derived from completed by the person the Deshormes judgment, has extended concerned in the capacity of a that presumption to the whole period of temporary servant occupying a the applicant's employment with the permanent post. Directorate-General for the Internal Market. It is of the opinion that that is as far as it may reasonably go. An analysis of the various stages of the applicant's career shows that only the contract of employment concluded, and then extended, for the period between 1 September 1964 and 31 December 1965 IV — O r a l p r o c e d u r e during which he carried out the duties of research assistant in the Directorate- General for External Relations was At the sitting on 2 July 1981 the parties legally classifiable as a contract for presented oral argument. auxiliary service. The Advocate General delivered his In fact, the applicant's duties during that opinion at the sitting on 15 October period were not “well-defined … public- 1981.

2 The applicant, who entered the service of the Commission on 1 September 1964 as a member of the auxiliary staff, was established in 1974, with effect from 1 April of that year. Before his appointment as a probationary official, in Grade A 6, on 19 July 1973, his administrative status was governed by 25 successive contracts, some of which were extensions of previous contracts. Thus he worked: (i) as a member of the auxiliary staff in Category A in the Directorate-General for External Relations from 1 September 1964 to 31 December 1965, and in the Directorate-General for the Internal Market from 1 January 1966 to 31 December 1968; (ii) as a temporary servant in Category B in the Directorate-General for Economic and Financial Affairs from 1 January 1969 to 31 December 1971; (iii) as a member of the auxiliary staff in Category A in the Directorate-General for Development Aid from 1 January 1972 to 31 December 1972; and (iv) as temporary servant in Grade A 6 in the Directorate-General for Development and Cooperation from 1 January 1973 until his appointment as a probationary official.

3 It is that career, and the circumstances surrounding it, which have given rise to this action, the two parts of which raise different problems. It is ap­ propriate first to examine the question of the applicant's pension rights.

The applicant's pension rights

4 In the request which he submitted pursuant to Article 90 (1) of the Staff Regulations and in the complaint which he lodged against the rejection of

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that request, the applicant submitted that it was illegal for the Commission to leave him in a precarious position during the long period of his engagement as a member of the auxiliary staff. He maintained that his periods of employment as a member of the auxiliary staff should therefore be regarded as having been completed by him in the capacity of a temporary servant and should be taken into account in calculating his years of service for the purpose of his retirement pension within the meaning of the first paragraph of Article 77 of the Staff Regulations.

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those entrusted to him after 1 January 1966; both before and after that date he was working on studies and the only change was the subject-matter thereof.

9 In this respect it should be remembered that the judgment of 1 February 1979 cited above took the view that the distinction between auxiliary staff and temporary staff lies in the fact that the latter occupy permanent posts included in the list of posts, whereas the former, except in the case of the temporary replacement of an official, perform administrative work without being assigned to a post included in the list of posts and the outstanding feature of contracts for auxiliary staff is their precariousness since they may be used only to provide a temporary replacement or to ensure the per­ formance of administrative duties which are of a transitory nature or which fulfil an urgent need or which are not clearly defined.

10 In this case, the applicant has been unable to prove that the duties which he performed between 1 September 1964 and 31 December 1965 corresponded to a post included in the list of posts. The Commission, on the other hand, has produced a number of letters and notes addressed to the applicant by the Director-General for External Relations during that period which mentioned the essentially transitory nature of the work entrusted to the applicant.

11 It follows that this part of the application must be dismissed as unfounded.

Damages

16 The application sets out the following circumstances:

(a) The Commission kept the applicant as regards his administrative status in a position which amounted to a “record period of uncertainty and instability”.

(b) The applicant had to suffer “tribulations” regarding his grading and was demoted on several occasions.

(c) He was established “in a starting grade”, namely Grade A 6, lower than the one to which he was entitled.

(d) The Commission made “improper use of the rules permitting the engagement of auxiliary staff” for a long period.

(e) The applicant was the victim of “harassment” and “acts of intimidation” on the part of the Commission and, moreover, the Commission entrusted only minor duties to him.

18 The same arguments do not however apply with regard to the complaints set forth under (a) and (e). The harassment referred to in point (e) may consist of mere circumstances of fact unrelated to the decisions alleged to be unlawful. The resumption of the written procedure on the substance of the case will give the applicant an opportunity to clarify his allegations in that respect. Neither does the fact of the applicant's having been kept in a state of insecurity for more than 10 years, the complaint set forth under (a), necessarily merge with the complaints concerning the unlawfulness of the individual decisions taken with respect to the applicant. In fact, it is not possible to say at this stage that the improper use of contracts for the engagement of auxiliary staff has not given rise to damage otherwise than in relation to the pension rights on which this judgment has given a ruling. In this respect also, the applicant should have an opportunity to give more precise details of his complaints when the procedure is resumed on the substance of the case.

19 It may be seen from the foregoing considerations that the action for damages must be dismissed as inadmissible, in so far as it is based on the alleged unlawfulness of the Commission's decisions with respect to the applicant regarding his establishment, classification in a grade or step or the engagement of the applicant as a member of the auxiliary staff or as a temporary servant, but the application is otherwise admissible, subject to the conditions indicated above.

JUDGMENT OF 19. 11. 1981 — CASE 106/80

2. Dismisses the application as inadmissible in so far as it seeks compensation for damage caused by allegedly unlawful decisions taken by the Commission with respect to the applicant;

3. Declares the application otherwise admissible;

4. Reserves costs.

Bosco O'Keeffe Koopmans

Delivered in open court in Luxembourg on 19 November 1981.

J. A. Pompe G. Bosco Deputy Registrar President of the First Chamber