61985J0329

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OFFICIALS - ACTIONS - ACT ADVERSELY AFFECTING THE OFFICIAL - MEMBER OF THE AUXILIARY STAFF CLAIMING TO BE RECOGNIZED AS A MEMBER OF THE TEMPORARY STAFF - CONTRACT OF EMPLOYMENT

( STAFF REGULATIONS OF OFFICIALS, ARTS 90 ( 2 ) AND 91 )

WHERE A MEMBER OF THE AUXILIARY STAFF CLAIMS THAT HE SHOULD BE RECOGNIZED AS A MEMBER OF THE TEMPORARY STAFF ON THE GROUND THAT HIS RECRUITMENT AS A MEMBER OF THE AUXILIARY STAFF WAS IN BREACH OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS, THE ACT ADVERSELY AFFECTING HIM IS HIS CONTRACT OF EMPLOYMENT, IF THAT WAS NOT ALTERED ON THE OCCASIONS WHEN IT WAS RENEWED .

IN CASE 329/85

MARCO CASTAGNOLI, RESIDING AT 12 VIA CREMONA, TAINO ( VARESE ), A FORMER MEMBER OF THE COMMISSION' S AUXILIARY STAFF EMPLOYED AT THE JOINT RESEARCH CENTRE AT ISPRA, REPRESENTED BY ANGELO ULGHERI, OF THE MILAN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MICHEL ROLAND, 7 COTE D' EICH,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY DIMITRIOS GOULOUSSIS, LEGAL ADVISER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALOYSE MAY, 31 GRAND-RUE,

DEFENDANT,

APPLICATION TO HAVE DECLARED UNLAWFUL THE MEASURE WHEREBY THE COMMISSION TERMINATED THE APPLICANT' S CONTRACT OF EMPLOYMENT AS A MEMBER OF THE AUXILIARY STAFF, TO HAVE HIM DECLARED A MEMBER OF THE TEMPORARY STAFF AND FOR AN ORDER THAT THE COMMISSION COMPENSATE THE APPLICANT FOR THE DAMAGE SUFFERED BY HIM,

THE COURT ( FIRST CHAMBER )

COMPOSED OF : F.*SCHOCKWEILER, PRESIDENT OF CHAMBER,

G . BOSCO AND R . JOLIET, JUDGES,

ADVOCATE GENERAL : J.*L . DA CRUZ VILACA

REGISTRAR : H.*A . RUEHL, PRINCIPAL ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 21 JANUARY 1987,

HAVING REGARD TO THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 12 MAY 1987,

DELIVERS THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 6 NOVEMBER 1985 MARCO CASTAGNOLI, A FORMER MEMBER OF THE COMMISSION' S AUXILIARY STAFF, SEEKS DECLARATIONS THAT THE MEASURE WHEREBY THE COMMISSION TERMINATED HIS CONTRACT OF EMPLOYMENT IS UNLAWFUL AND THAT HE SHOULD BE RECOGNIZED AS A MEMBER OF THE TEMPORARY STAFF . HE ALSO ASKS THE COURT TO ORDER THE COMMISSION TO COMPENSATE HIM FOR THE DAMAGE HE HAS SUFFERED .

2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR AN ACCOUNT OF THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

3 BY A CONTRACT SIGNED ON 20 FEBRUARY 1984, MR CASTAGNOLI WAS ENGAGED AS A MEMBER OF THE AUXILIARY STAFF TO OCCUPY A POST AS AN UNSKILLED WORKER AT THE JOINT RESEARCH CENTRE AT ISPRA . THE CONTRACT WAS FOR FOUR MONTHS AND IT WAS SUBSEQUENTLY EXTENDED TO 21 OCTOBER 1984 AND THEN TO 21 FEBRUARY 1985 .

4 BY LETTER OF 22 JANUARY 1985 MR HAMAERT, HEAD OF THE ADMINISTRATION AND PERSONNEL DIVISION OF THE COMMISSION, INFORMED MR CASTAGNOLI THAT IN ACCORDANCE WITH ARTICLE 52 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES, HIS CONTRACT OF EMPLOYMENT COULD NOT BE RENEWED AFTER 21 FEBRUARY 1985 .

5 ON RECEIVING THAT INFORMATION MR CASTAGNOLI SENT THE COMMISSION A LETTER DATED 15 FEBRUARY 1985 STATING THAT HE HAD BEEN RECENTLY INFORMED THAT HE HAD ORIGINALLY BEEN ENGAGED IN ORDER TO REPLACE A MEMBER OF THE TEMPORARY STAFF WHO HAD BEEN PLACED ON RETIREMENT ON GROUNDS OF INVALIDITY FROM 1 JANUARY 1982 AND WHO HAD PREVIOUSLY BEEN REPLACED BY TWO OTHER MEMBERS OF THE AUXILIARY STAFF, EACH ENGAGED FOR A PERIOD OF 12 MONTHS . HE MAINTAINED THAT RECRUITING AUXILIARY STAFF TO FILL A POST LEFT VACANT BY A MEMBER OF THE TEMPORARY STAFF WAS A BREACH NOT ONLY OF ITALIAN LEGISLATION GOVERNING FIXED-TERM EMPLOYMENT BUT ALSO OF ARTICLES 3, 51 AND 52 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES . HE THEREFORE CHALLENGED THE COMMISSION' S CLASSIFICATION OF HIM AND REQUESTED THAT HE BE RECOGNIZED AS A MEMBER OF THE TEMPORARY STAFF ENGAGED FOR AN UNLIMITED PERIOD .

6 BY A DECISION OF 29 JULY 1985 THE COMMISSION, AFTER DESCRIBING MR CASTAGNOLI' S LETTER AS A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS, REJECTED THE ALLEGATIONS CONTAINED IN THE LETTER . IT TOOK THE VIEW THAT MR CASTAGNOLI HAD BEEN ENGAGED AS A MEMBER OF THE AUXILIARY STAFF PURSUANT TO ARTICLE 52 ( B ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS AND THAT THEREFORE HIS TERM OF EMPLOYMENT COULD NOT EXCEED ONE YEAR .

7 MR CASTAGNOLI BROUGHT THIS APPLICATION IN ORDER TO CHALLENGE THE REJECTION OF HIS COMPLAINT .

ADMISSIBILITY

8 THE COMMISSION SUBMITS THAT THE APPLICATION IS INADMISSIBLE . IT CLAIMS THAT THE ACT ADVERSELY AFFECTING MR CASTAGNOLI WAS THE INITIAL CONTRACT OF EMPLOYMENT OR THE SUCCESSIVE EXTENSIONS THEREOF . THE LAST OF THOSE EXTENSIONS WAS NOTIFIED TO MR CASTAGNOLI ON 17 OCTOBER 1984 . CONSEQUENTLY, HIS COMPLAINT HAD NOT BEEN BROUGHT WITHIN THE THREE-MONTH PERIOD LAID DOWN IN ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS .

9 MR CASTAGNOLI CHALLENGES THE OBJECTION OF INADMISSIBILITY RAISED BY THE COMMISSION . HE MAINTAINS THAT THE ACT ADVERSELY AFFECTING HIM WAS THE COMMISSION' S LETTER OF 22 JANUARY 1985 INFORMING HIM THAT IT WAS NOT POSSIBLE TO RENEW HIS CONTRACT AGAIN . CONSEQUENTLY, HIS COMPLAINT HAD BEEN LODGED IN DUE TIME .

10 IT SHOULD BE NOTED THAT THE MAIN PURPOSE OF MR CASTAGNOLI' S COMPLAINT WAS TO CHALLENGE HIS RECRUITMENT AS A MEMBER OF THE AUXILIARY STAFF . HOWEVER, THAT DESCRIPTION OF HIS STATUS HAD BEEN EXPRESSLY AGREED UPON IN THE INITIAL CONTRACT OF EMPLOYMENT .

11 THAT DESCRIPTION WAS NEVER ALTERED, EITHER IN THE SUCCESSIVE RENEWALS OF HIS CONTRACT OF EMPLOYMENT OR IN THE LETTER OF 22 JANUARY 1985, IN WHICH THE COMMISSION MERELY COMMUNICATED TO HIM THE DATE ON WHICH HIS EMPLOYMENT WAS FINALLY TO CEASE . IT MUST THEREFORE BE CONCLUDED THAT THE ACT ADVERSELY AFFECTING MR CASTAGNOLI WAS THE CONTRACT OF EMPLOYMENT SIGNED ON 20 FEBRUARY 1984 .

12 SINCE MR CASTAGNOLI DID NOT LODGE HIS COMPLAINT WITH THE COMMISSION UNTIL 15 FEBRUARY 1985, THE THREE-MONTH PERIOD LAID DOWN BY ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS WAS NOT COMPLIED WITH .

13 THE APPLICATION IS THEREFORE INADMISSIBLE .

COSTS

14 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . HOWEVER, ARTICLE 70 OF THE SAME RULES PROVIDES THAT IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITY THE COSTS INCURRED BY THE INSTITUTIONS SHALL BE BORNE BY THE LATTER .

ON THOSE GROUNDS,

THE COURT ( FIRST CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION AS INADMISSIBLE .

( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .