C-225/81

JUDGMENT OF 23. 2. 1983 — JOINED CASES 225 AND 241/81

In Joined Cases 225 and 241/81

ARMANDO TOLEDANO LAREDO (Case 225/81)

and

MARIO GARILLI (Case 241/81)

assisted and represented by Edmond Lebrun of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever, 83 Boulevard Grande-Duchesse-Charlotte,

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

Advocate General: S. Rozès Registrar: P. Heim

gives the following

TOLEDANO LAREDO AND GARILLI v COMMISSION

JUDGMENT

Facts and Issues

Mario Garilli, the applicant in Case On 11 August 1981 the Commission 241/81, was engaged by the Commission expressly rejected the applicant's com­ as a member of the auxiliary staff under plaints. a six-month contract dated 13 August 1964, which took effect on 1 September 1964 and was extended twice, once until On 7 September 1981 Mr Garilli brought 31 August 1965 and then indefinitely. an action. That contract terminated on 31 March 1967, the applicant being appointed as a probationary official with effect from 2. By order of 4 February 1982 the 1 April 1967. Court (First Chamber), having de­ termined that Case 225/81 (Toledano Laredo), 241/81 (Garilli) and 308/81 The applicants asked the Commission, by (Klein) related to the same matter and means of requests under Article 90 (1) of were connected, decided to join the the Staff Regulations, to recognize their three cases for the purposes of the oral procedure and judgment. periods of service as members of the auxiliary staff for the purposes of the Community pension scheme, that is to The Commission subsequently accepted say to regard those periods as periods of that the action brought by Mrs Klein was service performed by temporary staff. well founded, except in respect of one matter of detail, and the Court therefore decided, by order of 12 May 1982, to Mario Garilli's request was rejected by separate Case 308/81 from Cases 225/81 the Commission by a decision notified to and 241/81 which remained joined.

JUDGMENT OF 23. 2. 1983 — JOINED CASES 225 AND 241/81

Its present practice is to take the view 2.1 Declare that the contract concluded that duties may only be described as by the Commission with the "permanent Community public service applicant on 28 July 1964, which duties" only where the former members took effect on 6 October 1964 and of the auxiliary staff have performed expired, following extensions, on after their recruitment or appointment as 30 September 1966, is to be members of the temporary staff regarded, with respect also to the "identical duties" to those performed by period from 6 October 1964 to them during their employment as 5 October 1965, as having been members of the auxiliary staff. concluded with a member of the temporary staff and that the Commission must acknowledge any It regards as "identical duties" those legal consequences arising therefrom duties which are of equivalent levels of concerning the calculation of the responsibility, correspond to the same applicant's years of service and years description and, in the case of of pensionable service within the intellectual activities of an advanced meaning of the first paragraph of level, relate to the same types of Article 77 of the Staff Regulations; problems.

Its practice is to consider that the 2.2 Annul the decision of 11 August conditions which must be satisfied if an 1981, adopted in response to the official is to benefit from the presump­ applicant's complaint of 11 February tion referred to in its memorandum of 12 1981, in so far as it refuses to August 1980 is the same as the condition recognize for the purposes of the relating to the performance of "identical Community pension scheme, the duties". period of service from 6 October 1964 to 5 October 1965 performed by the applicant in the purported capacity as a member of the auxiliary II — Conclusions of the parties staff;

3. Reserve the costs. Ill — Submissions and argu­ ments of the parties Mr Garilli claims that the Court should : The arguments put forward by Mr 1. Declare the application admissible Toledano Laredo and Mr Garilli in their and well founded; respective applications are substantially the same. 2. Consequently, The applicants state that according to the 2.1 Declare that the contract concluded Court's judgment of 1 February 1979 by the Commission with the in Case 17/78 Fausta Deshormes v applicant on 13 August 1964, which Commission of the European Communities took effect on 1 September 1964 and [1979] ECR 189 the sole criterion for expired, following extensions, on distinguishing between a contract for 31 March 1967, is to be regarded as temporary staff and a contract for having been concluded with a auxiliary staff is the nature of the duties temporary employee, and that the performed and if such duties are Commission must acknowledge any "permanent, definite, Community public legal consequences arising therefrom service duties" the contract must be concerning the calculation of the legally classified as a contract for applicant's years of service for the temporary staff. purposes of a retirement pension and the calculation of his years of service Both Mr Toledano Laredo and Mr under the first paragraph of Article Garilli claim that the duties which they 77 of the Staff Regulations; performed were permanent Community public service duties. 2.2 Annul the decision notified by memorandum of 17 November 1980 According to Mr Toledano Laredo that refusing to recognize for the fact is proved in his case by the very purposes of the Community pension nature of the duties (those of Principal scheme the period of service Administrator in the Administrative and performed by the applicant in the Legal Department of the Finance capacity of a member of the Division of the European Development auxiliary staff; Fund), was confirmed by the competent

authorities (he alleges that he was given dition. It follows from the judgment in a certificate to that effect by Mr Auclert, Deshormes that the fact that the duties Director of Finance and of Ad­ are identical is simply one form of proof ministration, Directorate-General for that the duties performed are Com­ Development) and is supported, if need munity public service duties and does not be, by the following circumstances : exclude other means of proof. It is necessary and logical to regard the fact (a) The fact that after the applicant left that the duties of a former so-called Division FED / 3 ( DGVIII ), the member of the auxiliary staff — now an duties which he had performed as a established official — have been taken member of the auxiliary staff were over by an official as further proof that taken over by officials; those duties are of a Community public service nature. (b) The fact that his contract of employment as a member of the auxiliary staff was extended Apart from that fact that it has no basis indefinitely at an early stage; in law and stems from an erroneous view of the judgment in Deshormes, the view (c) The continuity of the duties that recognition for the purposes of the performed throughout his period of Community pension scheme of a period employment as a so-called member of service completed as a member of the of the auxiliary staff. auxiliary staff depends on whether the same duties are performed both before and after establishment entails conse­ Similarly Mr Garilli claims that the quences which are unjustifiable, unjust duties he performed as a member of the and manifestly contrary to the principle auxiliary staff were Community public of equality. The criterion for recognition service duties, as is proved by the fact adopted in this case is based solely on that after his appointment as an official the duties assigned to the official at the he continued to perform the same type time of his establishment, a matter over of duties; his view is supported, fur­ which he has no control whatsoever and thermore, by circumstances similar in which is unconnected with the nature of essence to those mentioned by Mr the duties he performed during his Toledano Laredo. period of employment as a member of the auxiliary staff. According to the applicants the fact that they performed duties both during their period of service as members of the auxiliary staff and after they were The applicants also challenge a second established which were in their opinion requirement referred to in the disputed of the same type is sufficient for them to decisions which, according to the succeed in their actions, on the basis of Commission derives from the judgment the judgment in Deshormes. in Deshormes, that is to say the requirement that the employment as a Contrary to what is stated in the member of the auxiliary staff must decisions which they challenge it is not correspond to a permanent post necessary for them to have performed appearing in the list of posts appended to the same duties both before and after the budget. establishment. The Commission has failed to perceive the distinction between a condition to be satisfied and the proof Although the disputed decisions did not provided by satisfaction of that con­ purport to be based on that second

It must be added that the Commission itself took no account of this alleged As regards Mr Toledano Laredo's period second requirement as regards the part of service from 6 October 1964 to of the period of service as a member of 5 October 1965, the Commission the auxiliary staff after the first 12 considers that during that time he months and immediately preceding re­ performed duties which could legally be cruitment as an official or as a member regarded as those of a member of the of the temporaiy staff, even though the auxiliary staff. duration of a contract has no effect on the legal classification of it. Furthermore the Commission recognized that it would It is clear from a number of documents be neither fair nor realistic to require the that Mr Toledano Laredo was recruited persons concerned to show that the in 1964 "for the performance of second requirement has been complied administrative duties in order to meet an with. urgent need" and in particular to perform supplementary and urgent duties made necessary by the entry into force of The aforementioned considerations lead the Yaoundé Convention, and that at the applicants to conclude that the that time Directorate-General VIII did second requirement is non-existent. not have any post available for the re­ cruitment of an official or a temporaiy employee to perform such tasks. The fact The applicants also state that in any case that the duties performed after the posts provided for in the budget which period in dispute remained the same is corresponded to the duties they irrelevant. In fact it was only after 5 performed were available both in the October 1965, the date on which the institution as a whole and in the direc­ applicant's contract was renewed for an

indefinite period, that it became clear Community public service duties that Mr Toledano Laredo was corresponding to a post in the list of continuing to perform duties, without posts appended to the budget. limitation as to time, which had orig­ inally been of a transitory nature but proved in the event to be permanent. In fact the presumption only applies where the duties are identical. It is clear that Mr Garilli did not perform the same The same considerations apply in respect duties both before and after he was of Mr Garilli's period of service from established because he was employed in 1 September 1964 to 31 March 1967. Division I-D3 when he was a member of the auxiliary staff and subsequently, when he was an official, in Directorate- The documents produced by the General II. Commission in support of its statements show that Mr Garilli's initial recruitment as a member of the auxiliary staff and the two extensions of his contract were The applicants' replies differ because of the result of an express request from the different attitude adopted by the Directorate-General I "for the perform­ Commission to their individual cases. ance of administrative duties in order to meet an urgent need." The same documents also indicate that in the Mr Toledano Laredo, whose period of department dealing with Raw Materials service of 12 months from 6 October (Minerals and Metals), Chemical 1965 to 30 September 1966 was Industry, Construction of Machines and recognized by the Commission by Electronics Industry, Transport of decision of 11 August 1981 as being a Materials, Precision Engineering and period of employment as a member of Optics in Division I-D3 to which he was the temporary staff, endeavours first to assigned, there was at that time no show that logically that decision should permanent post in the list of posts to have related to his whole period as a which he could have been appointed as member of the auxiliary staff. He also an official. maintains that the duties he performed between 6 October 1964 and 5 October 1965 were permanent Community public Furthermore Mr Garilli did not qualify service duties and adds, finally, that the for the benefit of the presumption, second requirement relating to the introduced by the Commission in a existence of a post included in the list of memorandum of 12 August 1980 from posts appended to the budget either does the Director-General of Personnel and not exist, or ought not to be imposed by Administration, relating to the period of the authorities or else is satisfied in his service as a member of the auxiliary staff case. after the first 12 months and immediately prior to appointment as an official or as a member of the temporary staff, whereby a member of the auxiliary staff Mr Toledano Laredo states that, as is who has, during that period, performed immediately apparent from the wording duties identical to those performed by of the decision of 11 August, if the said him after being appointed as an official second period of auxiliary service is or a member of the temporary staff, is regarded as having been a period of presumed to have performed permanent employment as a member of the

temporary staff that is because during If it is accepted that the nature of the that period the applicant performed duties performed by him from 6 October duties which were identical to or, more 1964 to 5 October 1965 was not at that precisely, were "of the same type" as stage determined by virtue of the nature those he performed after he was of the duties performed from 6 October established. But the fact that a person 1965 to 30 September 1966, which performs duties after he has been remained exactly the same, Mr Toledano appointed as an official which are of the Laredo reiterates his view, on the basis same type as the duties he had previously of the arguments expounded in his performed as a member of the auxiliary application, that those duties were staff necessarily implies that the duties without doubt permanent Community performed in that capacity are permanent public service duties. Community public service duties and it is not permissible to place any time-limit upon the recognition of that fact. He points out that the fact that the duties were, as the Commission emphasized, to be performed as a matter The Commission is in error in including of urgency does not in any way imply a limitation in its decision of 11 August that they were not of a permanent

temporary staff. That conclusion is erroneous. In fact it is clear that the legal Mr Toledano Laredo also rejects the classification of a contract is to be ascer Commission's reference to the legal tained not by reference to its duration — provisions applicable to relations between whether or not it is in conformity with the parties, who freely agreed in the the legal limit •— but by reference to the contract that the first year of service duties performed and the facts of the would not be counted for retirement case. purposes.

The the auxiliary staff. requirement should therefore be

Mr Garilli states that even if it were Although the Commission refers to a necessary to admit, as seems to follow rebuttable presumption (praesumptio from the Court's judgment of 19 juris) it is in fact an irrebuttable November 1981 in Case 106/80 Bernard presumption (praesumptio juris et de jure) Fournier v Commission of the European inasmuch, as there,is no indication in its Communities [1981] ECR 2759, that memorandum of 12 August 1980 that the there is also a requirement as to the presumption is applicable subject to existence of a post provided for in the contrary evidence. That is confirmed by budget, there are no grounds, in any its administrative practice according to case, for applying the second which all former members of the requirement, for two reasons, each of auxiliary staff who satisfied the required which is by itself sufficient justification. conditions automatically benefited from the presumption. In the first place the Commission itself has shown that it does not take account The presumption should be extensively of the alleged requirement inasmuch as it applied for two reasons: as a matter of decided that the part of the period of logic, in so far as the situations of those employment as a member of the auxiliary involved are identical, and by virtue of staff after the first 12 months and the principles of equality and distributive immediately preceding appointment as justice. an official or as a temporary employee in a permanent post was to be deemed to Logically there is no difference, as have been completed by the person regards appraisal of the duties performed concerned as a member of the temporary by a former member of the auxiliary staff. staff, between the circumstances described by the Commission: Secondly the Comission itself has recognized that it is neither fair nor Performance of the same duties both realistic to require an employee to prove before and after establishment;

As regards the nature of the duties The imposition of a time-limit on the performed, the existence of a post effects of the presumption is not the provided for in the budget and breach of result of an error. the principle of equality, Mr Garilli puts forward the same arguments in his reply as those expounded by Mr Toledano As regards Mr Toledano Laredo, there Laredo. are good reasons for believing that the duties which he performed during his first 12 months of service as a member of The Commission in its rejoinder contends the auxiliary staff were of a kind which that there are two criteria applicable to might be assigned to auxiliary staff for the decision whether a contract is legally no more than one year. classifiable as a contract for auxiliary staff or a contract for temporary staff. It supports this view by detailed references In fact, at the relevant time, Directorate- to the Court's judgment of 19 November General VIII had no post available and 1981 in Case 106/80 Bernard Fournier was therefore unable to engage, as a

JUDGMENT OF 23. 2. 1983 — JOINED CASES 225 AND 241/81

At the sitting on 30 September 1982 oral The presumption is certainly a straight­ argument was presented for Mr forward one but to rebut it the applicant Toledano Laredo and Mr Garilli by must prove that he satisfied the two Edmond Lebrun of the Brussels Bar and requirements laid down in the judgment for the Commission of the European in Deshormes during the relevant period. Communities by its Legal Adviser,

TOLEDANO LAREDO AND GARILLI v COMMISSION

Joseph Griesmar, acting as Agent, The Advocate General delivered her assisted by Robert Andersen, of the opinion at the sitting on 11 November Brussels Bar. 1982.

Decision

1 By applications lodged at the Court Registry on 29 July 1981 and 7 September 1981 respectively, Armando Toledano Laredo and Mario Garilli, officials of the Commission of the European Communities, brought actions for a declaration that periods of service with the Commission completed by them as members of the auxiliary staff before appointment as probationary officials must be regarded as periods of service completed by them as temporary employees and therefore for annulment of the Commission's decisions whereby it refused to recognize such periods for the purposes of the Community pension scheme.

2 Mr Toledano Laredo was engaged by the Commission as a member of the auxiliary staff in Categoiy A, Group I, Class 2, under a six-month contract dated 28 July 1964 which took effect on 6 October 1964 and was extended first until 5 October 1965 and subsequently for an indefinite period. He was appointed as a probationary official in Grade A 4 on 1 October 1966 after successfully taking part in Open Competition No EEC / 829 / A which took place on 23 June 1966.

5 In support of their claims the applicants maintain that they satisfy the requirements laid down in the Conditions of Employment of Other Servants of the European Communities for recognition of the status of temporary employees, as defined by the Court in its judgment of ; 1 February 1979, cited.. above, and in its judgment of 19 November 1981 in Case 106/80 (Bernard Fournierv Commission of the European Communities [1981] ECR 2759).

6 In those judgments the Court stated that "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" and that an important characteristic of a contract for the employment of auxiliary staff "is its precariousness in time, since it can be used only to effect a temporary replacement or to allow the performance of administrative duties which are of a transitory nature, which fill an urgent need or which are not clearly defined."

7 A person who claims that a period of employment classified as having been completed in the capacity of a member of the auxiliary staff should be recognized as having been completed in the capacity of a temporary employee must therefore first prove that posts corresponding to the duties performed by him appeared at that time in the list of posts for the institution and were available.

13 In the absence of any provision in the Conditions of Employment of Other Servants of the European Communities determining means of proof it must be stressed that the applicants are entitled to demonstrate by any conclusive means that they performed permanent Community public service duties. In

JUDGMENT OF 23. 2. 1983 — JOINED CASES 225 AND 241/81

particular, whilst the fact that the duties performed by a person during the period when he was classified as a member of the auxiliary staff were identical to those performed after his appointment as a probationary official or as a temporary employee, which relate to a post contained in the list of posts, is without doubt sufficient proof, it may not be regarded as the only permissible means of proof.

u Mr Toledano Laredo stated, inter alia, that:

After his departure from Division EED / 3 (Directorate-General VIII), to which he had been assigned as a member of the auxiliary staff, the same duties which he had performed were carried out by officials;

His contract as a member of the auxiliary staff, which took effect on 6 October 1964, was extended indefinitely from 6 October 1965;

TOLEDANO LAREDO AND GARILLI v COMMISSION

i7 The urgent nature of those duties referred to by the Commission does not alter the fact that they are permanent duties; it may justify the engagement of an employee under a contract for auxiliary staff only if it is proved that suitable posts provided for in the budget were not immediately available and the Commission has not provided such proof in the present case.

is It must therefore be concluded that the applicants have been able to prove that during their periods of service as members of the auxiliary staff they performed well-defined, permanent Community public service duties for which posts were available in the list of posts appended to the section of the budget relating to the institution employing them.

19 In view of the foregoing considerations the Commission's decision of 1 December 1980 must be annulled, in so far as it does not recognize for the purposes of the Community pension scheme Mr Toledano Laredo's period of service as a member of the auxiliary staff from 6 October 1964 to 5 October 1965 and the Commission's decision of 17 November 1980 refusing to recognize for the purposes of the Community pension scheme Mr Garilli's period of service as a member of the auxiliary staff from 1 September 1964 to 31 March 1967 must also be annulled.

Costs

20 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. As the Commission has failed in its submissions it must be ordered to pay the costs.

2. Orders the Commission to pay the costs.

O'Keeffe Bosco Koopmans

Delivered in open court in Luxembourg on 23 February 1983.

P . Heim A. O'Keeffe

Registrar President of the First Chamber

OPINION OF MRS ADVOCATE GENERAL ROZÈS Ł DELIVERED ON 11 NOVEMBER 1982