JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

30 November 1994

Case T-558/93

Diethelm F. Diichs

v

Commission of the European Communities

‛Member of the temporary staff of the Commission assigned to the JET Joint Undertaking — Termination of contract — Competent authority’

Full text in French   II-837

Application for:

annulment of the termination of the applicant's contract of employment as a member of the temporary staff and damages.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, an employee of one of the members of the JET Joint Undertaking, the Max-Planck-Institut für Plasmaphysik in Munich (‘IPP’), was recruited by the Commission as a Grade A 3 temporary servant to head the Theory Division of the JET Project from 1 September 1982. His contract provided for termination of his employment on the grounds and under the conditions set out in Articles 47 to 50 of the Conditions of Employment of Other Servants, the maximum period of notice being three months in any event.

By letter of 29 June 1988 from the Director of the JET Project, the applicant was informed that his contract would be extended until 31 December 1992, subject to the approval of pluriannual programme covering the project. By letter of 11 December 1991, the same director informed the applicant that his contract would expire at the end of 1992 and that he would notify IPP accordingly.

By letter of 16 December 1991, the applicant wrote to the Director-General of the Directorate-General for Science, Research and Development of the Commission, requesting him, first, to ensure that the Director of the JET Project withdrew his letter of 11 December 1991 and, secondly, to state his opinion as to the termination of the applicant's contract at the end of 1992. The Director-General did not take any position on those points.

By letter of 21 April 1992, the Director of the JET Project informed the applicant that the purpose of his letter of 11 December 1991 had been to give him 12 months' notice, instead of the three months normally required, and that there was no proposal to appoint him to a post in the new structure of the project.

The decisions concerning the new structure of the JET Project, and in particular the closure of the Theory Division and the appointments of senior staff, were published in an information notice to the project's staff of 22 October 1992. On 28 January 1993 the applicant lodged a complaint against the decision contained in that notice, inasmuch as it did not include him in the new organizational structure of the JET Project for the extension of the programme beyond 1992.

By letter of 23 July 1993, the Commission informed the applicant that his complaint had been rejected.

Admissibility of the claims for annulment

The claims for annulment, directed primarily against the JET Council's decision, published in October 1992, to exclude the applicant from the list of senior staff appointed as from 1 January 1993, can be held admissible only if the contested decision constitutes an act adversely affecting the applicant for die purposes of Article 91(1) of the Staff Regulations and Article 46 of the Conditions of Employment of Other Servants, and is not merely an act of the JET Council related to the termination of the contract by a previous measure of the competent authority. An act adversely affecting an official is one which produces binding legal consequences such as to affect, directly and immediately, the applicant's interests by significantly changing his legal situation. Moreover, as is clear from Articles 90(2) and 91(1) of the Staff Regulations and Articles 46 and 6 of the Conditions of Employment of Other Servants, a Community staff action may be brought only against the appointing authority or the authority empowered to conclude contracts of employment, and the act adversely affecting the official must emanate from that authority (paragraphs 35 and 36).

See: 783 and 786/79 Venus and Oben v Commission and Council [1981] ECR 2445, para. 22; T-6/93 Pérez Jiménez v Commission [1994] ECR H-497, para. 34

The applicant claims that the contract at issue was really in the nature of a fixed-term contract, linked to the duration of the JET Project, and was thus incapable of premature termination by a unilateral declaration of the employer. On Ulis point it should be noted, however, that Article 4 of the contract expressly provides that it is ‘concluded for an indefinite period, linked to progress on the JET Joint Undertaking’. There is nothing in the contract or the context in which it was concluded to permit an interpretation contrary to its wording. In principle, therefore, the contract could be terminated unilaterally (paragraphs 37 and 38).

As regards the question whether the competent authority effectively adopted a decision terminating the contract, it is important to note that the contract was concluded between the applicant and the Commission, that the applicant was recruited as a ‘member of the temporary staff’, and that, as is clear from the Statutes of the JET Project, the Supplementary Rules, and the decisions of 20 November and 9 December 1985 on the exercise of the powers of the appointing authority and the authority empowered to conclude contracts of employment, it is for the Director of JET Project to decide upon the termination of the contract of a Grade A 3 temporary servant recruited under Article 2(a) of the Conditions of Employment of Other Servants, as in the applicant's case. It is therefore for the Director of the JET Project alone, in his capacity as executive organ of the joint undertaking, to adopt decisions capable of constituting, for staff up to Grade A 3, acts adversely affecting officials (paragraph 39).

The Court finds that the letter from the Director of the JET Project of 11 December 1991 effectively terminated the temporary-staff contract between the applicant and the Commission and thus constitutes an act adversely affecting the applicant (paragraph 46).

For an action against an act adversely affecting an official to be admissible, the pre-litigation procedure must first be complied with, but that requirement has not been satisfied in relation to the decision of the Director of the JET Project, contained in the letter of 11 December 1991 (paragraphs 47 to 49).

The claims for annulment must therefore be dismissed as inadmissible in their entirety (paragraph 53).

Admissibility of the claims for compensation

As for the claim, in default of reinstatement, for payment of the remuneration that would have been paid to the applicant until 31 December 1996, and the claim for compensation for the material and nonmaterial damage caused by the breach of his contract, the Court finds that such claims are the direct consequence of the termination of the contract. To the extent that the claims for annulment of that termination have been held inadmissible, the corresponding claims for compensation are, in accordance with settled case-law, also inadmissible (paragraphs 54 and 55).

See: T-50/92 Fioroni v Parliament [1993] ECR II-555, para. 45

As for the claims not based on the alleged illegality of the termination of the contract, and seeking compensation in lieu of notice and payment of remuneration for the period from 1 to 13 January 1993 during which the applicant claims to have worked for the JET Project, the Court notes that, in his complaint lodged on 28 January 1993, the applicant merely reserved the right to claim compensation for the material and/or nonmaterial damage he considered to have been caused to him by a situation he regarded as unlawful. Since that reservation, concerning possible future claims, does not constitute a request within the meaning of Article 90 of the Staff Regulations for the reparation of specific damage, the Court can only conclude that there has been no pre-litigation procedure whatever as regards the two claims in question, which were formulated for the first time only in the application to the Court. Those claims, therefore, must also be dismissed as inadmissible (paragraphs 54 and 56).

Operative part:

The application is dismissed as inadmissible.