C-257/85

OPINION OF MR DA CRUZ VILAÇA —CASE 257/85

OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 5 February 1987 *

Mr President, to receive a salary corresponding to Grade Members of the Court, B3, Step 4.

4. The applicant regularized her new status A — Background by signing a rider to the original contract, dated 7 April 1981, which took effect on 1 November 1980. As a result, she had to 1. The applicant, Christiane Dufay, was reimburse the difference in salary between recruited on 1 July 1973 by the Liberal and Grade B3, Step 4, and Grade C2, Step 5, Allies Group, now the Liberal, Democratic until June 1984, notwithstanding her and Reformist Group, in the European attempts to avoid repayment of the sum in Parliament as a member of the temporary question, pursuant to Article 85 of the staff in Grade B3, Step 1, in order to stand Conditions of Employment of Other in for another official and to carry out her Servants of the European Communities ('the duties at the secretariat of that group in Conditions of Employment'). Paris. On 31 January 1975 her contraa was converted into a contract of indefinite duration. 5. Finally, by letter of 15 October 1984, the President of the Liberal and Democratic Group, referring to the change in the political composition of the Parliament 2. On 15 July 1980 the applicant received a terminated the applicant's contract with letter from the Secretary-General of the effect from 1 December 1984 and gave her group, terminating her contract as from 1 three months' notice pursuant to Article August owing to the problems which had 47 (2) of the Conditions of Employment. arisen in connection with the reorganization of the secretariat in Paris.

(i) order the defendant to pay her, by way 10. Since that is the measure adversely of additional notice, the equivalent of affecting her, the applicant should have seven months' salary calculated on the lodged a complaint within the three-month basis of her last salary, pursuant to period prescribed by Article 90 (2) of the Article 47 of the Conditions of Staff Regulations. Employment; 11. The letter notifying her of her dismissal (ii) order the defendant to reinstate her in is dated 15 October 1984. Although the Category B as from 1 November 1980, applicant has not indicated the date on having regard to the normal devel- which she received the letter, there is no opment of her career, with all the doubt that the termination of the contract attendant consequences in law in took effect as from 1 December 1984, with particular as regards the acquisition of the result that she must have learnt of her pension points in respect of the periods dismissal before that date. before and after her dismissal; 12. As the complaint was dated 11 April 1985 it was out of time and the application (iii) order the defendant to make good must therefore be considered inadmissible the damage resulting from the loss of pursuant to Article 91 (2) of the Staff her salary, which, according to the Regulations. applicant, amounts to FF 200 000 as regards the period prior to her dismissal (1981 to 1984) and a sum at 13. In her reply, the applicant maintains least equal to that amount as a result of that the period prescribed by Article 90 (2) her 'sudden dismissal', the final amount of the Staff Regulations cannot be raised as to be calculated by an expert. a plea against her on the ground that persons working in France for any other employer are accorded by French law a C — Objection of inadmissibility longer period for lodging complaints. Hence to require her to comply with the period prescribed by the Staff Regulations is 8. In its defence, the Parliament raised the contrary to Article 6 of the European preliminary objection that the applicant's Convention on Human Rights. claims were inadmissible. I therefore propose to begin by considering that 14. It is quite clear that the European objection. Parliament's view is correct.

have been violated. In particular, the Regulations is inapplicable to her inasmuch requirements of Article 6, according to as it is contrary to the European which everyone is entitled to a fair and Convention on Human Rights or to French public hearing by an independent and law is no more tenable in relation to this impartial tribunal, are in no way called in claim that it was in relation to the previous question by Article 90 of the Conditions of claim. Employment and are fully satisfied in these proceedings. Nor is it at all clear in what (c) Third claim respect the Parliament has infringed the European Convention on Human Rights by l'i. With regard to the claim for compen- applying the Conditions of Employment. sation for the damage sustained by the applicant owing to the loss of her salary before and after her dismissal, it is based on 17. Moreover, that Convention does not the alleged illegality of certain measures form part of Community law but supplies taken by the Parliament to the detriment of 'guidelines which should be followed' in the applicant's interests. connection with the protection of funda- mental rights in the Community. * 24. In that regard, the case-law of the Court is unequivocal. Where the action for damages has its origin in the alleged 18. Accordingly, the first claim must be illegality of the institutions' decisions 'it considered inadmissible under Article 91 (2) cannot... be distinguished from an action of the Staff Regulations on the ground that for annulment'. As the basis for appeals lies the complaint was submitted out of time. in Article 179 of the EEC Treaty, they are subject to the time-limits laid down in Articles 90 and 91 of the Staff Regulations.2 (b) Second claim 25. Accordingly, the inadmissibility of the request for annulment must inevitably bring 19. The applicant challenges her 'reclassifi- with it the inadmissibility of the claim for cation' by the addition of a rider to the damages.3 contract on 7 April 1981. 26. That conclusion, in so far as it relates to 20. However, that 'reclassification' was not these proceedings, clearly applies to the the result of a unilateral act by the claim regarding the period prior to the Parliament. She agreed to it by signing the applicant's dismissal. new terms of the contract. 27. However, it is unclear whether the applicant's claim for annulment was also 21. In any event, the applicant did not directed against the measure terminating the complain until 11 April 1985, that is to say contract itself; she would appear to be chal- some years later. As her complaint is clearly lenging only the three-month period of out of time, the application is inadmissible notice that she was given and her 'sudden' by virtue of Article 91 (2) of the Staff dismissal 'for reasons which are neither Regulations. serious nor genuine'. She therefore seeks the

award of damages on account of 'her 33. .That argument is not borne out by a sudden dismissal' and of the fact that the careful reading of the provision in question. Conditions of Employment do not provide The 10-month period provided for therein for compensation in the case of a member applies only to staff covered by_Article 2 (d) of the temporary staff dismissed by one of of the Conditions of Employment, that is to the political groups in the Parliament. say staff engaged to fill a permanent post paid from research and investment appropri- ations. 28. Once again, this claim, like the others, must be declared inadmissible. The applicant had an opportunity to seek the annulment 34. That was not the position with regard of the measure terminating her contract to the applicant, whose contract was within the period prescribed by the Staff covered by Article 2 (c) of the Conditions Regulations and she may not obtain equi- of Employment, which applies to 'staff, valent benefits by means of a claim for other than officials of the Communities, damages based on the alleged illegality of engaged to assist either a person holding an that measure which may no longer be chal- office provided for in the Treaties estab- lenged as the aforesaid period has purely lishing the Communities, or the Treaty and simply been allowed to expire.4 establishing a Single Council and a Single Commission of the European Communities, or the elected president of one of the 29. It is clear, as we saw in connection with institutions or organs of the Communities or the first submission, that the time-limits laid the elected chairman of one of the political down apply to the applicant just as to any groups in the European Parliament'. other Community servant. 35. Clearly, it is not for the Parliament to 30. The claim for damages must therefore prove that that was not the case. Moreover, be regarded as inadmissible. as the defendant points out, it is clear from Article 87 of the Financial Regulation of 21 December 1977 applicable to the general D — Substance budget of the European Communities5 that the appropriations relating to research and investment are available only to the 31. In the light of the foregoing consider- Commission. ations, I propose to consider the substance of the applicant's claims briefly and only in the alternative. 36. As I said earlier, French law is inap- plicable to the present situation, which is governed exclusively by Community law (a) First claim (namely the Staff Regulations and Conditions of Employment). 32. The applicant argues that, as she was employed under a contraa for ah indefinite 37. Thus the maximum period of notice to period, she should have been given the which the applicant was entitled was three maximum period of notice (10 months) months, as provided for by Article provided for by Article 47 (2) (a) of the 47 (2) (a) of the Conditions of Em- Conditions of Employment. ployment. 4 — Sec the summary of the judgment in Vinck, cited above. 5 — OJ L 356, 31.12.1977, p. 1.

41. The fact remains that, once she was 45. Furthermore, it is also clear from informed that her contract would be Article 47 (2) of the Conditions of Em- terminated as from 1 August 1980 for ployment that, as the Court has already reasons connected with the service and in held,7 'it lies within the discretion of the the interests of the service, the applicant was competent authority to terminate a contract able to continue to perform her duties at the concluded for an indefinite period, provided group's secretariat in Paris — after pressure that the period of notice stipulated in the had apparently been exerted from various contract is granted and that that period is in quarters — on the basis of a fresh contract accordance with the said provision'. which she accepted by signing a rider to the original contract on 7 April 1981. 46. In this case, the termination of the contract was, moreover, expressly justified 42. Accordingly, as there is no evidence of by the change in the composition of the illegality in the fact that a new status was Parliament following the last election. In assigned to the applicant, the second claim addition, the applicant may qualify for a must also be regarded as wholly unfounded. temporary unemployment grant under the provisions approved on 4 July 1984 by the enlarged Bureau of the Parliament. (c) Third chim 47. Accordingly, the claims for damages are 43. The conclusion which I reached in unfounded. connection with the previous claim precludes recognition of any basis for the 6 — Judgment of 18 October 1977 in Case 25/68 Schemer v Parliament [1977] ECR 1729 at p. 1743. claim for damages in respect of the loss of 7 — Judgment of 26 February 1981 in Case 25/80 De Briey v income alleged by the applicant for the Commission [1981] ECR 637 at p. 645.