61980J0106

1 . OFFICIALS - CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS - TEMPORARY SERVANT - MEMBER OF THE AUXILIARY STAFF - DISTINCTION BETWEEN THEM - PERMANENT OR TEMPORARY NATURE OF POST - PRECARIOUS NATURE OF TEMPORARY SERVANT ' S CONTRACT

( CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , ARTS 2 AND 3 )

2 . OFFICIALS - ACTION FOR DAMAGES - CONNECTION WITH ACTION FOR ANNULMENT - DECISION NOT CONTESTED WITHIN THE PRESCRIBED PERIOD - INADMISSIBILITY

1 . 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 TEMPORARY REPLACEMENT OF AN OFFICIAL , PERFORM ADMINISTRATIVE WORK WITHOUT BEING ASSIGNED TO A POST INCLUDED IN THE LIST OF POSTS .

THE OUTSTANDING FEATURE OF CONTRACTS OF MEMBERS OF THE AUXILIARY STAFF IS THEIR PRECARIOUSNESS SINCE THEY MAY BE USED ONLY FOR THE PROVISION OF A TEMPORARY REPLACEMENT OR TO ENSURE THE PERFORMANCE OF ADMINISTRATIVE DUTIES WHICH ARE OF A TRANSITORY NATURE , OR WHICH FULFIL AN URGENT NEED OR WHICH ARE NOT CLEARLY DEFINED .

2 . AN OFFICIAL WHO FAILS TO CONTEST IN DUE TIME A DECISION OF THE APPOINTING AUTHORITY AFFECTING HIM IS NOT PERMITTED TO RELY ON THE ALLEGED UNLAWFULNESS OF THAT DECISION IN AN ACTION FOR DAMAGES .

IN CASE 106/80

BERNARD FOURNIER , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS , REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , ADVOCATE , 34B RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DENISE SORASIO , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR AN ORDER REQUIRING THE DEFENDANT TO PAY THE APPLICANT COMPENSATION FOR DAMAGE SUFFERED AND TO TAKE INTO ACCOUNT CERTAIN PERIODS OF SERVICE AS A MEMBER OF THE AUXILIARY STAFF FOR THE PURPOSE OF CALCULATING THE APPLICANT ' S YEARS OF PENSIONABLE SERVICE ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 28 MARCH 1980 , BERNARD FOURNIER , AN OFFICIAL OF THE COMMISSION , BROUGHT AN ACTION CLAIMING THAT THE COMMISSION SHOULD BE ORDERED , FIRST , TO PAY HIM THE SUM OF BFR 18 560 000 AS COMPENSATION FOR DAMAGE CAUSED BY THE COMMISSION ' S WRONGFUL CONDUCT TOWARDS HIM AND , SECONDLY , TO TAKE INTO ACCOUNT , IN THE CALCULATION OF HIS YEARS OF PENSIONABLE SERVICE WITHIN THE MEANING OF ARTICLE 77 OF THE STAFF REGULATIONS OF OFFICIALS ( HEREINAFTER REFERRED TO AS ' ' THE STAFF REGULATIONS ' ' ) THE PERIODS OF SERVICE DURING WHICH THE APPLICANT HAD THE STATUS OF A MEMBER OF THE AUXILIARY STAFF , NAMELY FROM 1 SEPTEMBER 1964 TO 31 DECEMBER 1968 AND FROM 1 JANUARY 1972 TO 31 DECEMBER 1972 .

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 APPROPRIATE 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 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 .

5 IN THIS REGARD THE APPLICANT RELIED ON THE JUDGMENT OF THE COURT OF 1 FEBRUARY 1979 ( CASE 17/78 DESHORMES V COMMISSION ( 1979 ) ECR 189 ), WHERE IT WAS HELD THAT THE PURPOSE OF THE CONDITIONS APPLICABLE TO AUXILIARY STAFF IS TO ENSURE THAT DUTIES WHICH , EITHER INTRINSICALLY OR BECAUSE OF THE ABSENCE OF AN OFFICIAL , ARE OF A PRECARIOUS NATURE MAY BE CARRIED OUT BY OCCASIONAL STAFF , AND THAT THOSE CONDITIONS MAY NOT BE IMPROPERLY USED TO ENTRUST PERMANENT DUTIES FOR LONG PERIODS TO SUCH PERSONNEL , WHO WOULD THUS BE USED IN AN INAPPROPRIATE MANNER AND SUBJECTED TO PROLONGED UNCERTAINTY .

6 AFTER THE EXPIRY OF THE PERIOD PRESCRIBED IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AND AFTER THE COMMENCEMENT OF THIS ACTION , THE COMMISSION REPLIED TO THE APPLICANT ' S COMPLAINT , ADMITTING THAT THE DUTIES CARRIED OUT BY HIM DURING THE PERIODS FROM 1 JANUARY 1966 TO 31 DECEMBER 1968 AND FROM 1 JANUARY 1972 TO 31 DECEMBER 1972 WERE NOT TEMPORARY DUTIES AS DEFINED IN THE JUDGMENT CITED ABOVE . FOR THAT REASON , IT DECIDED TO TAKE THOSE PERIODS INTO ACCOUNT IN CALCULATING THE APPLICANT ' S YEARS OF PENSIONABLE SERVICE .

7 ACCORDINGLY , IN HIS REPLY THE APPLICANT CONFINED HIS CLAIM TO THE PERIOD FROM 1 SEPTEMBER 1964 TO 31 DECEMBER 1965 . IT IS THEREFORE NECESSARY TO EXAMINE THE NATURE OF THE DUTIES ENTRUSTED TO THE APPLICANT DURING THAT PERIOD .

8 ACCORDING TO THE COMMISSION , DURING THAT PERIOD THE APPLICANT CARRIED OUT ESSENTIALLY TEMPORARY DUTIES AS A RESEARCH ASSISTANT IN THE DIRECTORATE-GENERAL FOR EXTERNAL RELATIONS , WITH RESPONSIBILITY FOR STUDIES RELATING TO THE COMMUNITY ' S EXTERNAL TRADE . HOWEVER , THE APPLICANT MAINTAINS THAT THE DUTIES CARRIED OUT BY HIM DURING THAT PERIOD DID NOT DIFFER IN ANY WAY FROM 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 PERFORMANCE 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

12 THE APPLICANT ALLEGES THAT NUMEROUS INCIDENCES OF UNLAWFUL AND IMPROPER CONDUCT BY THE COMMISSION , EXTENDING OVER THE WHOLE PERIOD FROM HIS FIRST CONTRACT OF EMPLOYMENT UNTIL THE PRESENT TIME , HAVE CAUSED HIM CONSIDERABLE DAMAGE . THE HEADS OF DAMAGE ARE : ( I ) ILL HEALTH , ( II ) MENTAL SUFFERING RESULTING FROM THE ILL HEALTH OF HIS WIFE AND THREE CHILDREN , ( III ) MENTAL SUFFERING RESULTING FROM THE ABSENCE OF A NORMAL CAREER , ( IV ) LOSS OF EARNINGS RESULTING FROM LACK OF ADVANCEMENT , ( V ) HIS ESTABLISHMENT IN GRADE A 6 INSTEAD OF GRADE A 4 , AND ( VI ) MENTAL SUFFERING ARISING FROM THE TRIVIALITY OF THE DUTIES ASSIGNED TO HIM .

13 IN ITS DEFENCE THE COMMISSION CONTESTED THE ADMISSIBILITY OF THE APPLICATION . IT SUBMITTED THAT THE APPLICANT COULD NOT OBTAIN BY MEANS OF AN ACTION FOR DAMAGES ADVANTAGES EQUIVALENT TO THOSE WHICH HAD BEEN DENIED HIM BY A DECISION AGAINST WHICH AN ACTION FOR ANNULMENT HAD BEEN ADJUDGED INADMISSIBLE ( JUDGMENT OF 13 MAY 1970 , CASE 18/69 FOURNIER V COMMISSION ( 1970 ) ECR 249 ) OR BY DECISIONS AGAINST WHICH NO ACTION HAD BEEN BROUGHT WITHIN THE PRESCRIBED PERIOD .

14 SINCE THE ARGUMENT BETWEEN THE PARTIES WAS THEREAFTER CONFINED TO THE QUESTION OF THE ADMISSIBILITY OF THIS PART OF THE APPLICATION , THE COURT ( FIRST CHAMBER ) DECIDED TO EXAMINE THAT ISSUE FIRST WITHOUT GIVING JUDGMENT ON THE SUBSTANCE OF THE CLAIM .

15 FOR THAT PURPOSE , IT IS APPROPRIATE TO EXAMINE THE ACTS AND OMISSIONS OF THE COMMISSION WHICH ARE ALLEGED IN THE APPLICATION TO CONSTITUTE UNLAWFUL AND IMPROPER CONDUCT ON THE PART OF THAT INSTITUTION .

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 .

( F)THE COMMISSION DISREGARDED WARNINGS FROM SEVERAL DOCTORS ABOUT THE APPLICANT ' S HEALTH AND THAT OF HIS FAMILY .

17 IT IS CLEAR FROM AN EXAMINATION OF THE FOREGOING LIST THAT THE MATTERS INDICATED UNDER ( F ) DO NOT CONSTITUTE A SEPARATE HEAD OF CLAIM , BUT MAY ONLY BE TAKEN INTO CONSIDERATION IN RELATION TO THE OTHER HEADS OF CLAIM . AS REGARDS THE MATTERS SET FORTH UNDER ( B ), ( C ) AND ( D ), THEY ARE INTENDED TO ESTABLISH THE UNLAWFULNESS OF SEVERAL INDIVIDUAL DECISIONS TAKEN BY THE COMMISSION WITH RESPECT TO THE APPLICANT . THE APPLICATION IS BASED ON THE ALLEGED UNLAWFULNESS OF THOSE DECISIONS AND IS THEREFORE INDISTINGUISHABLE FROM AN ACTION FOR ANNULMENT . IT SHOULD BE BORNE IN MIND THAT AN OFFICIAL WHO FAILS TO CONTEST IN DUE TIME A DECISION OF THE APPOINTING AUTHORITY AFFECTING HIM IS NOT PERMITTED TO RELY ON THE ALLEGED UNLAWFULNESS OF THAT DECISION IN AN ACTION FOR DAMAGES .

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 .

20 THE COSTS MUST BE RESERVED PENDING A DECISION ON THE REST OF THE CASE .

FOR THOSE REASONS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED IN SO FAR AS IT CONCERNS THE TAKING INTO ACCOUNT OF THE APPLICANT ' S PERIOD OF SERVICE FROM 1 SEPTEMBER 1964 TO 31 DECEMBER 1965 FOR THE PURPOSE OF CALCULATING HIS YEARS OF PENSIONABLE SERVICE WITHIN THE MEANING OF ARTICLE 77 OF THE STAFF REGULATIONS OF OFFICIALS ;

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 .