C-329/85

Mr President, to the status of a temporary employee as Members of the Court, opposed to that of an auxiliary staff member. 1. On 20 February 1984, the applicant, Marco Castagnoli, was recruited as a 4. The Commission treated Mr Castagnoli's member of the auxiliary staff and assigned note as a complaint within the meaning of to the Joint Research Centre at Ispra, a Article 90 (2) of the Staff Regulations and Commission establishment. The applicant rejected it. The applicant accordingly was engaged to perform the duties of an brought this action, in which, alleging an unskilled labourer in Category D, Group infringement of the relevant Italian legis- IX, Class 3. The contract was concluded for lation (Law No 230 of 18 April 1962) and a period of four months and was of Articles 3, 51 and 52 of the Conditions of subsequently renewed for two successive Employment, he maintains that the decision periods each of the same duration. terminating his employment is unlawful and he seeks a declaration that he is entitled to 2. Before the expiry of the second the status of a member of the temporary extension, the Head of the Administration staff 'with effect from 22 February 1984 or and Personnel Division at the Joint any other date (prior or subsequent) which Research Centre informed the applicant, the Court considers appropriate, and to by letter of 22 January 1985, that, in damages from the date from which his entit- accordance with Article 52 of the lement is recognized as taking effect to the Conditions of Employment of Other date of his actual appointment'. Servants of the European Communities ('the Conditions of Employment'), his contract 5. The Commission has raised the question could not be renewed beyond 21 February of the admissibility of the application as a 1985. preliminary issue. I propose to begin my analysis of the case with that issue and to 3. As a result of that letter, on 15 February confine myself, of course, to the allegation 1985 the applicant sent the Commission a that the complaint was submitted out of note, for the purposes of Article 90 of the time, the only allegation maintained by the Staff Regulations of Officials of the Commission throughout the proceedings. European Communities ('the Staff Regu- lations'), in which he challenged the Commission's description of his status as a I — Admissibility of the application member of the auxiliary staff. The applicant alleged that he had just become aware that 6. According to the Commission, the he had been recruited in order to replace a' applicant submitted his complaint after more certain Augusto Zappatini, a member of the than three months had elapsed since the temporary staff appointed for an indefinite conclusion of the contract of employment as period, who had been retired on grounds of subsequently extended, most recently on 17 invalidity on 1 January 1982 and that, October 1984. It follows, in its view, that consequently, he (the applicant) was entitled the application is automatically inadmissible.

7. In order to resolve that problem, it is 14. In his application, the applicant claims necessary to set out clearly the subject- that he is 'entitled to be made a member of matter of the application and of the the temporary staff with effect from 22 complaint which preceded it. February 1984 or any other date (prior or subsequent) which the Court considers appropriate'. 8. The applicant is clearly responsible for introducing in both of those documents a number of ambiguities concerning both the 15. What conclusions can we draw in the identification of the contested measure and midst of all that uncertainty? the claims put forward. 16. The applicant's key contention is that it is unacceptable for an auxiliary staff 9. I shall attempt to dispel the uncertainty member to be recruited in order to replace a and clarify matters. member of the temporary staff who is permanently unable to perform his duties. That being so, the allegedly unlawful 10. In his complaint of 15 February 1985, measure capable of adversely affecting the the applicant expressly challenged 'the applicant must from the very outset have appointment criterion adopted' in relation been the initial contract of employment to him 'by the appointing authority5, which dated 20 February 1984. had only just come to his attention through indirect channels. Since it is the appointment criterion which the applicant contests, that 17. In any event, the applicant cannot claim necessarily calls in question the original the status of a temporary employee from contract under which he was recruited as a the commencement of the contractual member of the auxiliary staff. relationship, with all the consequences which that entails, without contesting the very measure which conferred a different 11. In his reply the applicant explained, status upon him. however, that his complaint was ultimately directed against the measure adopted on 22 18. Moreover, according to Article 52 of January 1985 refusing any further extension the Conditions of Employment, a of his contract and thereby preventing him contractual relationship may be maintained, from continuing to occupy the post which on expiry of the second extension, only if he had filled for over a year. the contract conferred on the applicant the status of a member of the temporary staff for an indefinite period, as opposed to that 12. In his complaint, the applicant claimed that he was entitled to 'the status of a of a member of the auxiliary staff which member of the temporary staff for an cannot be extended for longer than one indefinite period', without specifying the year under the Staff Regulations. That must date from which that status should be perforce be apparent from the original accorded to him. contract since the two successive extensions maintained the initial terms of the contract and merely prolonged the validity of the 13. In his application, on the other hand, contract itself. the applicant challenges 'the criteria adopted by the appointing authority as a result of 19. In those circumstances, the three-month which the applicant was dismissed on 21 period laid down in Article 90 (2) of the February 1985 as a member of the auxiliary Staff Regulations should start to run from staff'. the date on which the initial contract of

employment was concluded, that is to say 25. I shall also disregard the fact that, if 20 February 1984, and the application is in the applicant had lodged a complaint principle manifestly out of time. immediately after the initial contract was concluded, a favourable decision would have entailed recognition of his status as a 20. The same conclusion would follow even member of the temporary staff för an if — assuming the measures renewing the indefinite period ab initio and it would have original contract are separable and each is been possible to dismiss him only in treated as a fresh contract — the applicant accordance with the Staff Regulations. were allowed to challenge only the last, most recent of those measures, which was notified to him on 17 October 1984. As the applicant gave his consent on 24 October 26. However, it is undoubtedly significant 1984, the three-month period for the that the applicant would not have suffered submission of complaints expired on 24 any particular damage if he had lodged a January 1985, and the complaint submitted complaint in due time after the final on 15 February 1985 is therefore out of renewal, but during the currency of the time. contract, since — unless the application proved to be well-founded — there were no circumstances in which the contract could 21. No doubt aware of that fact, the be renewed again, having regard to Article applicant pointed out in his reply that his 52 (b) of the Conditions of Employment. complaint was directed not 'against the measure adopted in October 1984 extending his temporary contract for four months, but 27. Moreover, in my view, the judgments against the measure adopted on 22 January given by the Court in similar cases, on the 1985 refusing any further extension'. question whether requests for reclassifi­ cation submitted by Community officials after their establishment were lodged in due 22. For the reasons which I mentioned time, are applicable here. In a recent earlier, however, it makes no sense, in my judgment, ' the Court held, confirming a view, to challenge any of those measures trend which it had been developing with without contesting the original contract and regard to specific cases in previous the status which it conferred on the judgments, 2 that, notwithstanding the applicant. precariousness of a probationary official's position, the measure adversely affecting 23. The applicant maintained, however, in him, in the case of a request for reclassifi­ his reply, that he could not have been cation, is the decision appointing him as a required to contest the status conferred by probationary official and not the decision his contract before the expiry thereof, since establishing him and it is from the date of that would have led to his instant dismissal. the former decision that time starts to run for the purposes of bringing proceedings.

notified of the expiry of his contract that he 33. I have already acknowledged, however, had been recruited in order to replace a that, in the version of his application in member of the temporary staff who had which he claims to be entitled to the status been permanently retired on grounds of of a member of the temporary staff as from invalidity. 22 February 1984, the applicant necessarily contests by implication the initial contract which placed him in the category of 29. That fact, according to the structure of auxiliary staff. Let us assume, therefore, the applicant's argument wherein the that, as the applicant subsequently became contested measure is the communication of aware of facts capable of substantiating his 22 January 1985, is wholly irrelevant. complaint, the latter was lodged in due time and the application is consequently 30. Moreover, that fact is difficult to admissible. reconcile with the importance which the applicant also attached to his fear of 34. Accordingly, I now turn to the dismissal had he reacted during the currency substance of the case. of his contracts for a limited period.

CASTAGNOLI v COMMISSION

40. This case is not concerned with staff and temporary staff lies in the fact that subparagraph (b). The Community servant a member of the temporary staff fills a whose duties the applicant may have been permanent post included in the list of posts, called upon to carry out was not tempo- whereas, except in the case of temporary rarily unable to perform them but had been replacement of an official, a member of the permanently retired. auxiliary staff performs administrative work without being assigned to a post included in the list of posts'.

available'. 43. The Commission argues that the retirement of Mr Zappatini made it possible 47. In my view, the applicant has failed to to release the post which he had occupied adduce in these proceedings any evidence and to include it in a common 'pool' of which is capable of invalidating the posts available for subsequent reallocation Commission's repeated assertion that he did by the Joint Research Centre at Ispra, irres- pective of the duties previously attaching to 5 — Judgment of 23 February 1983 in Joined Cases 225 and the post and solely in accordance with the 241/81 Toledano Laredo and Garilli v Commiiiion [1983] priorities and requirements of the service. ECR 347 at p. 360, paragraph 6 of the decision.

OPINION OF MR DA CRUZ VILAÇA — CASE 329/85

not occupy a post included in the list of are of a transitory nature, which fill an posts since the posts available had been urgent need or which are not clearly reserved in connection with the performance defined'. It is for applicants to 'prove that of other duties and filled in accordance with the duties which they performed as members the procedures laid down by the Staff Regu- of the auxiliary staff were not of a tran- lations. sitory nature, in other words that they were permanent Community public service duties'. 8 48. The Commission's order of priorities would have justified the allocation of a permanent post to another department and 52. In the Commission's view, that was not that is what the Joint Research Centre did the case here. The tasks which the applicant in the case of the post previously occupied had to perform were non-specific and the by Mr Zappatini, a temporary employee, in recruitment of auxiliary staff was, in its the exercise of the power conferred by the opinion, the best way of meeting the Staff Regulations to organize its own requirements of a department whose staff, departments. according to the information given at the hearing, was reduced from 15 or 16 persons in 1982 to 9 at present. 49. For that reason, once there were no further vacancies in its list of posts, the Joint Research Centre was unable to recruit a 53. However, it must be borne in mind that, temporary employee to carry out the duties as the Court has quite properly stated, 9 the previously performed by Mr Zappatini, even conditions applicable to auxiliary staff 'may if there had been any vacancies in other not be improperly used to entrust permanent departments or establishments of the duties for long periods to such personnel, Commission, which has not been shown to who would thus be used in an inappropriate be the case. manner and subjected to prolonged uncer- tainty'.

(d) in memoranda dated 3 October 1984 57. In my view, that is the crux of the and 21 January 1985, Mr Castagnoli's matter. superior stated that the applicant was working 'in place of Mr Zappatini' and that his post 'corresponds to that which was occupied by Mr Zappatini'. 58. In that regard, it must be borne in mind that: 59. Accordingly, the fact that the duties performed — over a period of at least five (a) the applicant has repeatedly stated that years — were permanent duties seems to me both he and the other auxiliary staff to have been established to a sufficient members who were recruited on the extent in these proceedings. same terms successively performed the same duties as Mr Zappatini, that is to say the duties of an assistant to a cold- 60. The urgent nature of the duties to be storage plant worker; carried out does not alter the fact that they are permanent duties and it can justify the engagement of auxiliary staff only if suitable (b) the Commission has confined itself, in posts provided for in the budget were not the proceedings, to the contention that, immediately available.10 owing to the classification of the applicant (as a member of the auxiliary staff in Category D IX 3, corre- 61. In practice, the applicant occupied, in sponding to Grade D 4, Step 1 or 2, in the third year following Mr Zappatini's the category of temporary staff) and his departure, the same post, that is to say he level of training (unskilled labourer with performed the same duties as Mr Zappatini, no experience relating to cold storage regardless of the fact that, in view of his for industrial purposes), it was lack of experience, he was unable to impossible for him fully to replace Mr perform them in the same way. The Zappatini, a highly experienced skilled appointing authority simply considered that worker in Grade C 2; the same duties could thenceforth be carried out by any worker who was still an apprentice, instead of a skilled worker. (c) the Commission has acknowledged, however, that the applicant was recruited in order to fill, temporarily 62. Accordingly, there are serious and in part, the vacancy created by the objections to the legality of the procedure departure of Mr Zappatini whose duties followed in that regard by the defendant. were, from the outset, performed 10 — Toledano Laredo, lupra, at p. 363, paragraph 17 of the by auxiliary staff members. The decision.

70. H I — In those circumstances, I suggest that the Court:

Order the Commission to pay the applicant compensation equal to the difference between his salary as a member of the auxiliary staff for a period of one year and the amount which he would have received if he had been recruited in respect of the same period as a member of the temporary staff in the equivalent category, increased by any further sums to which, in the latter (but not in the former) case, he would have been entitled either during the performance of the contract or by virtue of its termination;

Declare the application unfounded with regard to the other heads of claim;

Order the Commission to pay, in addition to its own costs, one-half of the applicant's costs, the rest to be borne by the applicant since he has failed in some of his submissions.