61959J0044

++++

1 . PROCEDURE - PROCEEDINGS IN WHICH THE COURT HAS UNLIMITED JURISDICTION - IRREGULAR CONCLUSIONS - JUDGMENT OF ITS OWN MOTION AGAINST DEFENDANT

2 . OFFICIALS - ON CONTRACT - PERIOD PRIOR TO PROMULGATION OF STAFF REGULATIONS - CONDITIONS APPLICABLE - DISPUTES - JURISDICTION OF THE COURT

( EEC TREATY, ARTICLES 173, 179 )

3 . OFFICIALS - ON CONTRACT - PERIOD PRIOR TO PROMULGATION OF STAFF REGULATIONS - SERVANTS WITHIN THE MEANING OF ARTICLE 179 OF EEC TREATY - CONCEPT

4 . OFFICIALS - ON CONTRACT - PERIOD BEFORE ADOPTION OF THE STAFF REGULATIONS - CONTRACT OF EMPLOYMENT - PUBLIC LAW CONTRACT

5 . OFFICIALS - ON CONTRACT - PERIOD PRIOR TO PROMULGATION OF STAFF REGULATIONS - CONTRACT OF EMPLOYMENT - TEMPORARY ENGAGEMENT UNDER ARTICLE 246 OF EEC TREATY

( EEC TREATY, ARTICLE 246 ( 3 ))

6 . OFFICIALS - ON CONTRACT - PERIOD PRIOR TO PROMULGATION OF STAFF REGULATIONS - CONTRACT OF EMPLOYMENT OF UNLIMITED DURATION - CONTRACT PENDING CONTRACT OF LIMITED DURATION

( EEC TREATY, ARTICLE 246 ( 3 ))

7 . OFFICIALS - ON CONTRACT - PERIOD PRIOR TO PROMULGATION OF STAFF REGULATIONS - DISMISSAL - INFRINGEMENT OF THE PRINCIPLE OF GOOD FAITH - LIABILITY OF THE ADMINISTRATION - COMPENSATION FOR DAMAGE

8 . OFFICIALS - ADMINISTRATIVE MEASURE - NECESSITY FOR ADEQUATE STATEMENT OF REASONS

1 . IN PROCEEDINGS IN WHICH THE COURT HAS UNLIMITED JURISDICTION IT HAS, EVEN IN A CASE WHERE THE CONCLUSIONS WANT DUE FORM, THE POWER NOT ONLY TO ANNUL BUT ALSO OF ITS OWN MOTION TO ORDER THE DEFENDANT TO PAY COMPENSATION .

2 . CF . SUMMARY OF JUDGMENT IN JOINED CASES 43, 45 AND 48/59, NO 1

WHERE THE CONDITIONS OF EMPLOYMENT APPLICABLE TO SERVANTS HAVE NOT BEEN EXPRESSLY DETERMINED AND DEFINED BY THE COMPETENT AUTHORITIES, THE CONDITIONS APPLICABLE FOR THE PURPOSES OF ARTICLE 179 OF THE EEC TREATY ARE TO BE DEEMED TO CONSIST OF THE EXPRESS OR IMPLIED TERMS WHICH NECESSARILY GOVERNED THE CONTRACTS OF EMPLOYMENT OF THOSE SERVANTS . ACCORDINGLY THE COURT HAS JURISDICTION UNDER ARTICLE 179 OF THE EEC TREATY, AND THIS IS CONFIRMED BY THE GENERAL PRINCIPLE SET OUT IN ARTICLE 173 OF THE SAID TREATY .

*/ 659J0043 /*.

3 . CF . SUMMARY OF JUDGMENT IN JOINED CASES 43, 45 AND 48/59, NO 2

FOR THE PURPOSES OF ARTICLE 179 OF THE EEC TREATY, ANY PERSON EMPLOYED IN THE SERVICES OF THE COMMUNITY PRIOR TO THE PROMULGATION OF THE STAFF REGULATION IS A SERVANT .

*/ 659J0043 /*.

4 . CF . SUMMARY OF JUDGMENT IN JOINED CASES 43, 45 AND 48/59, NO 3

CONTRACTS OF EMPLOYMENT OF SERVANTS CONCLUDED BY THE COMMISSION ACTING UNDER ITS POWERS TO PROVIDE A PUBLIC SERVICE COME UNDER PUBLIC LAW AND ARE SUBJECT TO THE GENERAL RULES OF ADMINISTRATIVE LAW .

*/ 659J0043 /*.

5 . CF . SUMMARY OF JUDGMENT IN JOINED CASES 43, 45 AND 48/59, NO 4

THE EXPRESS OR IMPLIED CREATION, PRIOR TO THE PROMULGATION OF THE STAFF REGULATIONS, OF A RELATIONSHIP WHICH ENVISAGES PERMANENT EMPLOYMENT AND CARRIES ENTITLEMENT TO THE FUTURE BENEFITS OF THE STAFF REGULATIONS IS PROHIBITED BY VIRTUE OF ARTICLE 246 ( 3 ) OF THE EEC TREATY . THE CASE-LAW OF THE ECSC COURT OF JUSTICE, WHICH HAS ACCEPTED THAT SERVANTS OF THE ECSC EMPLOYED PRIOR TO THE PROMULGATION OF THE STAFF REGULATIONS HAVE AN ENTITLEMENT TO FUTURE EMPLOYMENT THEREUNDER, IS OF NO AVAIL ON THIS POINT BECAUSE THE LAST PARAGRAPH OF ARTICLE 7 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS DOES NOT REQUIRE THAT ALL CONTRACTS OF EMPLOYMENT SHALL BE OF LIMITED DURATION .

*/ 659J0043 /*.

6 . CF . SUMMARY OF JUDGMENT IN JOINED CASES 43, 45 AND 48/59, NO 5

ALTHOUGH THE CONTRACTS AT ISSUE WERE NEVERTHELESS CONCLUDED FOR A PERIOD OF UNLIMITED DURATION, THAT IS TO BE EXPLAINED BY THE FACT THAT AT THE TIME WHEN THEY WERE CONCLUDED IT WAS IMPOSSIBLE TO ENTER INTO CONTRACTS OF LIMITED DURATION PROVIDED FOR BY ARTICLE 246 ( 3 ) OF THE TREATY, BECAUSE AT THAT TIME THE PERMANENT NEEDS OF EACH SERVICE OF THE COMMISSION WERE NOT SUFFICIENTLY FORESEEABLE . THE CONTRACTS AT ISSUE, WHICH THUS CONSTITUTED A PHASE PENDING THE CONCLUSION OF CONTRACTS PROVIDED FOR BY ARTICLE 246 ( 3 ) OF THE TREATY, CAN ON NO ACCOUNT IMPLY THAT THERE WAS A COMMON INTENTION BETWEEN THE PARTIES TO ENTER INTO THE LEGAL RELATIONSHIP OF A CONTRACT OF PERMANENT EMPLOYMENT, FOR SUCH AN INTENTION IS MANIFESTLY CONTRARY TO THE PRINCIPLE SET OUT IN THE SAID ARTICLE 246 ( 3 ).

*/ 659J0043 /*.

7 . CF . SUMMARY OF JUDGMENT IN JOINED CASES 43, 45 AND 48/59, NO 6

OBSERVANCE OF THE PRINCIPLE OF GOOD FAITH REQUIRES THAT DECISIONS OF DISMISSAL TERMINATING A CONTRACT OF EMPLOYMENT MUST BE JUSTIFIED ON GROUNDS RELEVANT TO THE INTERESTS OF THE SERVICE AND THERE MUST BE NOTHING ARBITRARY ABOUT THEM . FAILURE TO STATE SUCH GROUNDS CONSTITUTES A BREACH OF CONTRACT FOR WHICH THE ADMINISTRATION IS LIABLE . THE FACT THAT THE OFFICIALS WRONGFULLY DISMISSED HAVE RETURNED TO POSTS FORMERLY HELD BY THEM OR FOUND NEW POSTS IS NO BAR TO THEIR BEING AWARDED COMPENSATION FOR NON-MATERIAL DAMAGE CAUSED BY THE WRONGFUL ACT ON THE PART OF THE ADMINISTRATION .

*/ 659J0043 /*.

8 . CF . SUMMARY OF JUDGMENT IN JOINED CASES 43, 45 AND 48/59, NO 7

THE REASONS APPERTAINING TO THE PUBLIC INTEREST IN JUSTIFICATION FOR AN ADMINISTRATIVE MEASURE MUST BE STATED WITH CLARITY AND IN SUCH A WAY THAT THEY MAY BE DISPUTED FOR OTHERWISE THE OFFICIAL CONCERNED WOULD HAVE NO MEANS OF KNOWING WHETHER HIS LEGAL RIGHTS HAD BEEN RESPECTED OR INFRINGED AND FURTHERMORE ANY REVIEW OF THE LEGALITY OF THE DECISION WOULD BE HAMPERED .

*/ 659J0043 /*.

IN CASE 44/59

RUDOLF PIETER MARIE FIDDELAAR, REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG, AT THE CHAMBERS OF EMILE POOS, 9 RUE DE NASSAU, APPLICANT,

V

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY PAUL LELEUX, LEGAL ADVISER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . MANZANARES, SECRETARY OF THE LEGAL SERVICE OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR

ANNULMENT OF THE DECISIONS CONTAINED IN THE LETTERS ADDRESSED TO THE APPLICANT BY THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY DATED 24 JULY AND 14 AUGUST 1959;

APPOINTMENT OF THE APPLICANT ON A PROVISIONAL BASIS IN THE LANGUAGE DEPARTMENT IN GRADE L/C, STEP 1;

DAMAGES;

JURISDICTION OF THE COURT

IT IS NECESSARY TO EXAMINE WHETHER THE COURT HAS JURISDICTION TO RULE ON THE PRESENT APPLICATIONS . THIS ISSUE WAS RAISED BY THE DEFENDANT DURING THE PROCEEDINGS FOR INTERIM MEASURES, BUT IT WAS NOT PUT FORWARD AGAIN IN THE MAIN PROCEEDINGS .

UNDER ARTICLE 179 OF THE TREATY " THE COURT OF JUSTICE SHALL HAVE JURISDICTION IN ANY DISPUTE BETWEEN THE COMMUNITY AND ITS SERVANTS WITHIN THE LIMITS AND UNDER THE CONDITIONS LAID DOWN IN THE STAFF REGULATIONS OR THE CONDITIONS OF EMPLOYMENT ".

AT THE PRESENT TIME, IN THE ABSENCE OF STAFF REGULATIONS AND PENDING THEIR ADOPTION, THE COMMUNITY 'S SERVANTS, IN THE BROADEST SENSE OF THE TERM, ARE SUBJECT TO A SPECIAL AND PROVISIONAL SET OF RULES . THIS SET OF RULES APPLICABLE TO THE SAID SERVANTS IS, SINCE IT HAS NOT BEEN EXPRESSLY DETERMINED OR DEFINED BY THE COMPETENT AUTHORITIES, THE SET OF RULES RESULTING FROM THE EXPRESS OR IMPLIED CONDITIONS WHICH WERE A BASIC ELEMENT IN THE CONTRACTS OF EMPLOYMENT OF THOSE SERVANTS, AS BETWEEN THEM AND THE COMMUNITY .

IN CONSEQUENCE, THE COURT HAS JURISDICTION TO PASS JUDGMENT ON DISPUTES BETWEEN THE COMMUNITY AND ITS SERVANTS BECAUSE THERE EXISTS AS BETWEEN THEM A SET OF RULES WHICH NECESSARILY, ALBEIT STILL PROVISIONALLY, GOVERNS THEIR RELATIONSHIP .

FURTHERMORE, ARTICLE 173 OF THE TREATY LAYS DOWN THE GENERAL PRINCIPLE THAT " THE COURT OF JUSTICE SHALL REVIEW THE LEGALITY OF ACTS OF THE ... COMMISSION OTHER THAN RECOMMENDATIONS OR OPINIONS ". FAR FROM CONFLICTING WITH OR STANDING IN OPPOSITION TO THE APPLICATION OF ARTICLE 179 IN THE PRESENT CASE, THIS PRINCIPLE REINFORCES, IF IT WERE NECESSARY, THE SOUNDNESS OF SUCH APPLICATION .

P . 542

THEREFORE THE PROPER COURSE IS TO REJECT AS UNFOUNDED THE OBJECTION THAT ARTICLE 179 CANNOT BE APPLIED TO THE PRESENT CASE BECAUSE THE COMMUNITY HAS NOT PROMULGATED THE STAFF REGULATIONS FOR ITS SERVANTS AND HAS NOT IN THE ABSENCE THEREOF EXPRESSLY DEFINED THE SET OF RULES PROVISIONALLY APPLICABLE PENDING THEIR BEING DRAWN UP . THE OBJECTION MUST BE REJECTED ALSO BECAUSE, AS STATED ABOVE, THERE NECESSARILY EXISTS A SET OF RULES APPLICABLE TO THE LEGAL RELATIONSHIP BETWEEN THE COMMUNITY AND ITS SERVANTS .

AGAIN, THE OBJECTION BASED ON THE DIFFERENT TERMINOLOGY ( SERVANTS, OFFICIALS, ETC .) MUST ALSO BE REJECTED FOR IT IS OBVIOUS THAT IN PRESENT CIRCUMSTANCES AND PENDING PROMULGATION OF THE STAFF REGULATIONS OF OFFICIALS THE WORD " SERVANT " INCLUDES ANY PERSON EMPLOYED IN THE SERVICES OF THE COMMUNITY .

ADMISSIBILITY

1 . IN HIS SECOND MAIN CONCLUSION, THE APPLICANT SEEKS A DECLARATION FROM THE COURT THAT HE MUST BE TREATED AS ENGAGED ON A PROVISIONAL BASIS AS AN OFFICIAL OR SERVANT IN THE LANGUAGE DEPARTMENT AT A GIVEN STEP IN A GIVEN GRADE .

THE POWER OF APPOINTMENT BELONGS EXCLUSIVELY TO THE ADMINISTRATION AND THE LATTER IS ALONE COMPETENT TO DECIDE IN WHAT GRADE AND AT WHAT STEP A SERVANT MAY BE ENGAGED . SINCE THE COURT OF JUSTICE CANNOT EXERCISE THIS POWER IN PLACE OF THE COMMISSION THE SECOND MAIN CONCLUSION SUBMITTED BY THE APPLICANT IS INADMISSIBLE .

2 . THE APPLICANT CLAIMS, IN THE ALTERNATIVE, THAT THE DEFENDANT SHOULD BE ORDERED TO PAY COMPENSATION FOR NON-MATERIAL DAMAGE .

UNDER ARTICLE 38 ( 1 ) ( D ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, THE APPLICATION MUST CONTAIN THE CONCLUSIONS OF THE APPLICANT .

THE ABOVE-QUOTED CONCLUSION WAS SUBMITTED FOR THE FIRST TIME IN THE WRITTEN OBSERVATIONS OF THE APPLICANT RELATING TO THE MEASURES OF INQUIRY ORDERED BY THE COURT ON 20 JUNE 1960 AND IT IS NOT INCLUDED BY IMPLICATION IN THE CONCLUSIONS SET OUT IN THE APPLICATION . IN CONSEQUENCE, THIS CONCLUSION MUST BE REGARDED AS OUT OF TIME AND, ACCORDINGLY, INADMISSIBLE .

NEVERTHELESS, SINCE THIS CASE INVOLVES PROCEEDINGS IN WHICH THE COURT HAS UNLIMITED JURISDICTION IT HAS, EVEN WHERE THE CONCLUSIONS WANT DUE FORM, THE POWER NOT ONLY TO ANNUL BUT ALSO, IF NEED BE, OF ITS OWN MOTION TO ORDER THE DEFENDANT TO PAY COMPENSATION FOR THE NON-MATERIAL DAMAGE CAUSED BY A WRONGFUL ACT OR OMISSION ON ITS PART .

P . 543

SUBSTANCE

LEGAL NATURE OF THE CONTRACT OF EMPLOYMENT

UNDER THE CONDITIONS AND CIRCUMSTANCES IN WHICH THE APPLICANT WAS ENGAGED BY THE COMMISSION, THE CONTRACT OF EMPLOYMENT CONCLUDED BETWEEN THE PARTIES ARISES FROM THE IMPLIED AGREEMENT BETWEEN THEM .

THE QUESTION ARISES WHETHER THAT CONTRACT FALLS WITHIN PUBLIC OR PRIVATE LAW .

IN THE PESENT CASE, ONE OF THE CONTRACTING PARTIES, THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, ACTING WITHIN THE LIMITS OF THE POWERS CONFERRED ON IT BY THE TREATY, HAS LEGAL PERSONALITY AS LAID DOWN BY ARTICLE 210 OF THE TREATY . THAT PERSONALITY IS ONE OF PUBLIC LAW BY VIRTUE OF THE POWERS AND DUTIES APPROPRIATE TO IT . CONSEQUENTLY, THE CONTRACT AT ISSUE WAS CONCLUDED BY A PERSON AT PUBLIC LAW .

MOREOVER THAT CONTRACT WAS CONCLUDED TO ENABLE THE LANGUAGE SERVICE OF THE COMMISSION TO FUNCTION PROPERLY . THIS SERVICE, WHICH IS RESPONSIBLE FOR ENSURING THAT THE CONTENTS OF THE ACTS OF THE COMMISSION SHALL BE IDENTICAL IN THE FOUR OFFICIAL LANGUAGES OF THE COMMUNITY, CONSTITUTES AN IMPORTANT ELEMENT IN THE PROCEDURE WHICH HAS AS ITS PURPOSE THE FORMULATION IN EACH LANGUAGE OF THOSE ACTS; THUS THAT SERVICE IS OF THE SAME PUBLIC NATURE AS THE COMMISSION ITSELF .

THEREFORE, THE CONTRACT AT ISSUE COMES UNDER PUBLIC LAW AND IS SUBJECT TO THE GENERAL RULES OF ADMINISTRATIVE LAW .

EXISTENCE OF A RIGHT TO SECURITY OF TENURE

THE APPLICANT ARGUES THAT, AS THE LEGAL RELATIONSHIP CREATED BY THE CONTRACT AT ISSUE COMES UNDER PUBLIC LAW, IT CONFERS ON HIM ENTITLEMENT TO CONDITIONS OF EMPLOYMENT BEFORE THEIR ADOPTION, THE ADVANTAGE OF A SET OF RULES PENDING PROMULGATION OF THE STAFF REGULATIONS AND GIVES HIM A REASONABLE EXPECTION OF PERMANENT EMPLOYMENT .

THEREFORE THE CONTESTED DECISION TO DISMISS THE APPLICANT, IN TERMINATING THAT RELATIONSHIP INFRINGED THE RULES OF LAW APPLICABLE TO THE CONDITIONS OF HIS ENGAGEMENT AND WAS ACCORDINGLY IRREGULAR .

THIS ARGUMENT IS UNFOUNDED .

ARTICLE 246 ( 3 ) OF THE TREATY PROVIDES THAT, UNTIL THE STAFF REGULATIONS OF OFFICIALS AND THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITY PROVIDED FOR IN ARTICLE 212 HAVE BEEN LAID DOWN, EACH INSTITUTION SHALL RECRUIT THE STAFF IT NEEDS AND TO THIS END CONCLUDE CONTRACTS OF LIMITED DURATION .

P . 544

IT FOLLOWS FROM THAT PROVISION THAT NO RELATIONSHIP OF EMPLOYMENT EXISTING BETWEEN THE COMMUNITY AND ITS SERVANTS BEFORE THE STAFF REGULATIONS AND THE CONDITIONS OF EMPLOYMENT MENTIONED IN ARTICLE 212 OF THE TREATY HAVE BEEN LAID DOWN, CAN CREATE ANY PERMANENT, LEGAL RELATIONSHIP BETWEEN THE PARTIES .

IN CONSEQUENCE, STAFF RECRUITED BEFORE THAT DATE CANNOT, ON THE BASIS OF THE CONDITIONS ON WHICH THEY WERE ENGAGED, LAY CLAIM TO APPOINTMENT TO PERMANENT POSTS OR THE BENEFITS OF THE FUTURE STAFF REGULATIONS SINCE SUCH APPOINTMENTS AND SUCH BENEFITS ARE IN THEMSELVES INCONSISTENT WITH THE LIMITED CHARACTER OF ANY EMPLOYMENT RELATIONSHIP CREATED BEFORE THE ENTRY INTO FORCE OF THE SAID STAFF REGULATIONS OR CONDITIONS OF EMPLOYMENT .

ALTHOUGH THE CONTRACT AT ISSUE WAS NEVERTHELESS CONCLUDED FOR AN INDEFINITE PERIOD, THIS IS EXPLAINED BY THE IMPOSSIBILITY, AT THE TIME WHEN IT WAS CONCLUDED, OF ENTERING IN CONTRACTS OF LIMITED DURATION PROVIDED FOR BY ARTICLE 246 ( 3 ) OF THE TREATY BECAUSE THE PERMANENT REQUIREMENTS OF EACH SERVICE COULD NOT AT THAT TIME BE ADEQUATELY FORESEEN . SINCE, THEREFORE, THAT CONTRACT AT ISSUE BELONGED TO A STAGE PRECEDING THE CONCLUSION OF THE CONTRACTS PROVIDED FOR BY ARTICLE 246 ( 3 ) OF THE TREATY, IT CAN ON NO ACCOUNT IMPLY A COMMON INTENTION BETWEEN THE PARTIES TO ENTER INTO THE LEGAL RELATIONSHIP OF A CONTRACT OF PERMANENT EMPLOYMENT FOR SUCH AN INTENTION IS CLEARLY CONTRARY TO THE PRINCIPLE LAID DOWN IN THE SAID ARTICLE 246 ( 3 ).

NOR CAN SUCH AN INTENTION BE DEDUCED FROM THE FACT THAT THE APPLICANT TOOK PART IN A COMPETITION BEFORE ENTERING THE SERVICE OF THE COMMISSION, FOR THE OBJECT OF THE COMPETITION WAS TO MAKE AVAILABLE TO THE INSTITUTIONS OF THE EUROPEAN COMMUNITIES A LIST OF CANDIDATES SUITABLE FOR SUBSEQUENT ENGAGEMENT AND NOT TO EMBARK FORTHWITH ON THE RECRUITMENT OF STAFF . MOREOVER, THE RESULTS OF THE COMPETITION WERE NOT KNOWN UNTIL SOME MONTHS AFTER THE DATE WHEN THE APPLICANT WAS ENGAGED, WHICH RULES OUT ANY CAUSAL LINK BETWEEN, ON ONE HAND, THE HOLDING OF THE COMPETITION AND HIS TAKING PART IN IT AND, ON THE OTHER, HIS ENGAGEMENT .

THEREFORE, SINCE THE APPLICANT HAS NO CLAIM WHATSOEVER TO SECURITY OF TENURE, THERE IS NO POINT IN CONSIDERING WHETHER THE DESCRIPTIONS " EXPERT " OR " AUXILIARY " ACCURATELY REFLECT THE NATURE OF THE LEGAL RELATIONSHIP WHICH EXISTED BETWEEN THE PARTIES .

IN THESE CIRCUMSTANCES, CERTAIN MEASURES ADOPTED BY THE COMMISSION CONCERNING THE APPLICANT AND CERTAIN PRIVILEGES WHICH IT GRANTED TO HIM CANNOT BE USED TO LEND PERMANENCE TO THE CONTRACT OF EMPLOYMENT AT ISSUE SINCE THOSE MEASURES AND PRIVILEGES CANNOT CONFER ON THE SAID CONTRACT A TENOR AND MEANING WHICH ARE EXPRESSLY PROHIBITED BY ARTICLE 246 ( 3 ) OF THE TREATY .

P . 545

THERE IS, CONSEQUENTLY, NO BASIS FOR THE APPLICANT'S ARGUMENT THAT THE COMMISSION, BY ITS CONDUCT, ENCOURAGED HIM TO EXPECT SECURITY OF TENURE AND THEREBY COMMITTED A WRONGFUL ACT .

FINALLY, IT IS NOT POSSIBLE, IN THE PRESENT CASE, TO REPLY ON THE CASE-LAW OF THE COURT OF JUSTICE OF THE ECSC, WHICH HAS ACCEPTED THAT SERVANTS OF THE ECSC EMPLOYED PRIOR TO THE ENTRY IN FORCE OF THE STAFF REGULATIONS COULD EXPECT PERMANENT EMPLOYMENT, BECAUSE, UNLIKE ARTICLE 246 ( 3 ) OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, THE LAST PARAGRAPH OF THE ARTICLE 7 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS DOES NOT REQUIRE EVERY CONTRACT OF EMPLOYMENT CONCLUDED BEFORE ENTRY INTO FORCE OF THE STAFF REGULATIONS TO BE OF LIMITED DURATION AND DOES NOT THEREBY PRECLUDE THE RELATIONSHIP WHEREBY THE EMPLOYEE HAS SOME SECURITY AND ENJOYS THE EXPECTION OF THE BENEFIT OF THE STAFF REGULATIONS .

SUBMISSION CONCERNING MISUSE OF POWERS

THE APPLICANT CONTENDS THAT, FAR FROM HAVING BEEN TAKEN IN THE INTERESTS OF THE SERVICE, OR AT LEAST SUBSTANTIALLY ON THOSE GROUNDS, THE DECISION OF DISMISSAL WAS THE CONSEQUENCE OF AN ARTICLE WHICH HE HAD PUBLISHED IN THE AMSTERDAM ALGEMEEN HANDELSBLAD OF 14 FEBRUARY 1959 AND IN WHICH EMPHASIS WAS LAID ON THE UNCERTAIN FUTURE OF TRANSLATORS IN THE LANGUAGE SERVICE OF THE COMMISSION, AND THAT, AS THE DECISION AT ISSUE WAS, BY VIRTUE OF THIS, A DISGUISED DISCIPLINARY MEASURE, IT IS VITIATED BY MISUSE OF POWERS IN REGARD TO HIM .

AS EVIDENCE THAT THIS COMPLAINT IS JUSTIFIED, THE APPLICANT ASKED THE COURT TO CALL WITNESSES TO PROVE :

( A ) " THAT MR GUMMERER, HEAD OF THE LANGUAGE SERVICE, ASSURED THE APPLICANT THAT HE FOUND NOTHING TO CRITICIZE IN HIS WORK AND THAT NOTHING WOULD HAVE HAPPENED TO HIM IF IT HAD NOT BEEN FOR PUBLICATION OF THE AFOREMENTIONED ARTICLE ";

( B ) " THAT, IN REPLY TO MR STEMPELS, ATTACHE IN MR HALLSTEIN 'S CABINET, MR VAN RIEMSDIJK, REVISER IN THE DUTCH SECTION, DECLARED THAT THE APPLICANT'S WORK WAS IN EVERY WAY SATISFACTORY AND THAT, IN HIS OPINION, THERE WAS NO REASON WHY HE SHOULD BE DISMISSED APART, OF COURSE, FROM THE ARTICLE ALREADY MENTIONED ".

ON 20 JUNE 1960 THE COURT ORDERED THAT THE FACTS HEREINBEFORE MENTIONED BE PROVED BY WITNESSES, AND THE WITNESSES SUMMONED BY THE COURT GAVE EVIDENCE AT THE HEARING ON 1 OCTOBER 1960 .

P . 546

IN HIS EVIDENCE, MR GUMMERER STATED THAT HE HAD NEVER GIVEN THE APPLICANT THE ASSURANCE WHICH IS THE SUBJECT OF THE FIRST FACT TO BE PROVED; THAT AS HE DOES NOT KNOW DUTCH HE WAS NOT HIMSELF IN A POSITION TO ASSESS THE QUALITY OF THE WORK PERFORMED BY THE APPLICANT; THAT, IN ORDER TO DO SO, HE HAD TO RELY ON THE ASSESSMENT MADE BY THE DUTCH REVISERS; AND THAT ALTHOUGH IN HIS CAPACITY AS HEAD OF THE TRANSLATION SERVICE AND THE PERSON RESPONSIBLE FOR ITS EFFICIENT WORKING, HE HAD FELT OBLIGED TO MAKE SOME COMMENT TO THE APPLICANT CONCERNING THE PUBLICATION OF THE ARTICLE REFERRED TO, HE NEVERTHELESS CONSIDERED ITS PUBLICATION AS A " SUPEROGATORY " AND NOT A " FURTHER " REASON TO THOSE WHICH LED HIM TO RECOMMEND THE APPOINTING AUTHORITY TO DISPENSE WITH THE SERVICES OF THE APPLICANT IN THE LANGUAGE SERVICE .

IN HIS EVIDENCE, MR VAN RIEMSDIJK STATED THAT HE HAD NEVER DECLARED THAT THE APPLICANT'S WORK WAS " SATISFACTORY IN EVERY RESPECT "; THAT, ON THE CONTRARY, HE HAD EXPRESSED THE VIEW THAT, WHILST THE APPLICANT WAS NOT SO UNSATISFACTORY AS TO JUSTIFY DISPENSING WITH HIS SERVICES, HE WAS NEVERTHELESS NOT A GOOD TRANSLATOR; AND THAT, IN HIS CONVERSATION WITH MR STEMPELS, HE HAD REFERRED TO PUBLICATION OF THE PRESS ARTICLE ATTRIBUTED TO THE APPLICANT AS A VERY MINOR CONSIDERATION .

MR STEMPELS CONFIRMED THE EVIDENCE GIVEN MR VAN RIEMSDIJK .

QUESTIONED BY THE COURT IN HIS CAPACITY AS DIRECTOR-GENERAL FOR ADMINISTRATION IN THE COMMISSION OF THE EEC, MR VAN KARNEBEEK TESTIFIED THAT HE HAD INTERVIEWED THE APPLICANT CONCERNING PUBLICATION OF THE PRESS ARTICLE AS SOON AS IT APPEARED AND THAT, AFTER THE INTERVIEW, HE HAD CONSIDERED THE INCIDENT TO BE CLOSED .

IN ACCORDANCE WITH ARTICLE 47 ( 6 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, THE ABOVE-NAMED WITNESSES SIGNED THE MINUTES OF THEIR EVIDENCE AND, AFTER GIVING THEIR EVIDENCE, MESSRS GUMMERER AND VAN RIEMSDIJK TOOK THE OATH IN ACCORDANCE WITH ARTICLE 47 ( 5 ) OF THE SAID RULES .

THE TESTIMONY HEREINBEFORE DESCRIBED DID NOT CONFIRM THE ALLEGATIONS MADE BY THE APPLICANT IN SUPPORT OF HIS COMPLAINT OF MISUSE OF POWERS .

THE APPLICANT FURTHER CONTENDS THAT THE LACK OF ANY CONSIDERATION OF THE INTERESTS OF THE SERVICE IN THE CONTESTED DECISION TO DISMISS HIM IS PROVED BY THE FACT THAT ANOTHER TRANSLATOR IN THE DUTCH SECTION, MR VAN ALPHEN, CONTINUED TO BE EMPLOYED DESPITE THE FACT THAT, IN THE CLASSIFICATION OF SUITABLE CANDIDATES DRAWN UP BY MR GUMMERER ON 16 JANUARY 1959, HE WAS PLACED BELOW THE APPLICANT .

EVEN ON THE ASSUMPTION THAT MR VAN ALPHEN HAD BEEN ILLEGALLY RETAINED IN EMPLOYMENT, THIS IS NOT, ON THE OTHER HAND, SUFFICIENT TO JUSTIFY THE RETENTION OF THE APPLICANT IF, ON THE FACTS, IT IS CLEAR THAT THE APPOINTING AUTHORITY DECIDED TO DISMISS HIM IN THE INTERESTS OF THE SERVICE .

P . 547

THE AFOREMENTIONED CONTENTION IS IN CONSEQUENCE IRRELEVANT TO THE ISSUE IN DISPUTE AND IN THE CIRCUMSTANCES OF THE CASE THE COURT CANNOT GIVE IT CONSIDERATION .

ALL THESE CONSIDERATIONS JUSTIFY THE CONCLUSION THAT THE APPLICANT HAS NOT SUPPLIED PROOF THAT THE REASON FOR THE CONTESTED DECISION TO DISMISS HIM WAS PUBLICATION IN THE ALGEMEEN HANDELSBLAD OF 14 FEBRUARY 1959 OF THE PRESS ARTICLE ATTRIBUTED TO HIM AND THAT THE DECISION THEREFORE CONSTITUTED A DISGUISED DISCIPLINARY MEASURE .

THE COMPLAINT OF MISUSE OF POWERS MUST BE DISMISSED .

STATEMENT OF REASONS FOR THE DECISION OF DISMISSAL .

THE CONDUCT OF AN AUTHORITY, IN ADMINISTRATIVE AS IN CONTRACTUAL MATTERS, IS AT ALL TIMES SUBJECT TO OBSERVANCE OF THE PRINCIPLE OF GOOD FAITH .

THE CONTRACT AT ISSUE, WHICH COMES UNDER ADMINISTRATIVE LAW, IS SUBJECT TO OBSERVANCE OF THIS PRINCIPLE AND THE FACT THAT IT WAS PROVISIONAL OR TEMPORARY DOES NOT EXEMPT IT FROM THIS REQUIREMENT .

CONSEQUENTLY, THE CONTESTED DECISION OF DISMISSAL, MUST, IN ORDER TO TERMINATE THAT CONTRACT, BE JUSTIFIED ON GROUNDS RELEVANT TO THE INTERESTS OF THE SERVICE AND THERE MUST BE NOTHING ARBITRARY ABOUT IT; SUCH, FOR EXAMPLE, AS THE NEED TO DISPENSE WITH THE SERVICES OF AN UNQUALIFIED SERVANT OR A SERVANT OCCUPYING A POST WHICH HAS BEEN ABOLISHED IN THE INTERESTS OF THE SERVICE .

THE STATEMENT OF THE GROUNDS ON WHICH AN ADMINISTRATIVE MEASURE IS DICTATED BY THE PUBLIC INTEREST MUST BE MADE IN TERMS WHICH ARE SPECIFIC AND CAPABLE OF BEING CHALLENGED, FOR OTHERWISE THE OFFICIAL CONCERNED WOULD HAVE NO MEANS OF KNOWING WHETHER HIS LEGITIMATE INTERESTS HAVE BEEN RESPECTED OR INFRINGED AND FURTHERMORE ANY REVIEW OF THE LEGALITY OF THE DECISION WOULD BE HAMPERED .

IN THE PRESENT CASE, THE LETTERS OF DISMISSAL DID NOT MORE THAN NOTIFY THE APPLICANT, WITHOUT GIVING ANY REASONS, OF THE ADMINISTRATION'S INTENTION TO TERMINATE THE CONTRACT .

IT IS TRUE THAT IN DECEMBER 1958 MR LANKES NOTIFIED ALL AUXILIARIES AND EXPERTS EMPLOYED IN THE LANGUAGE SERVICE, INCLUDING THE APPLICANT, THAT IT WAS NECESSARY TO REDUCE THE STAFF OF THAT SERVICE AND THAT IN CONSEQUENCE NOT ALL THOSE SERVANTS COULD BE FOUND A PLACE IN THE FINAL ESTABLISHMENT .

THE APPLICANT HAS ACCEPTED THAT THE TERMINATION OF HIS CONTRACT WAS UNDOUBTEDLY CONNECTED IN ESSENCE WITH THAT NOTIFICATION, BUT HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE AND, ABOVE ALL, THE CONSIDERABLE TIME WHICH ELAPSED BETWEEN THE NOTIFICATION, WHICH WAS IN VERY GENERAL TERMS, AND THE LETTER TERMINATING THE CONTRACT, THERE WAS A DUTY TO GIVE A SPECIFIC STATEMENT OF REASONS .

P . 548

IN CONSEQUENCE, THE LETTER TERMINATING THE CONTRACT MUST BE HELD TO BE INSUFFICIENT .

THIS DEFICIENCY CONSTITUTES A CONTRACTUAL WRONG ON THE PART OF THE COMMISSION FOR WHICH IT IS LIABLE .

ITS LIABILITY MUST, IN THE PRESENT CASE, BE ASSESSED IN THE LIGHT OF THE FACT THAT THE TERMINATION OF THE CONTRACT OF EMPLOYMENT HAS TAKEN EFFECT AND THAT THE COMMISSION MUST DISCHARGE ITS OBLIGATION BY WAY OF DAMAGES .

IN ORDER TO ASSESS THE AMOUNT OF DAMAGE, ACCOUNT MUST BE TAKEN OF THE NON-MATERIAL DAMAGE SUFFERED BY THE APPLICANT BY REASON OF THE ANXIETIES WHICH THE PRECARIOUS POSITION ARISING FROM THE DEFAULT OF THE COMMISSION CAUSED HIM AND ALSO BY REASON OF HIS AGE AND THE SITUATION OF HIS FAMILY .

THE COURT HAS EXTRACTED FROM THE CIRCUMSTANCES OF THE CASE FACTORS ENABLING IT, IN EQUITY, TO ASSESS DAMAGES AT FB 100 000 .

CONSEQUENTLY THE OFFER MADE BY THE DEFENDANT TO PAY THE APPLICANT THE SUM OF FB 100 000 MUST BE CONSIDERED ADEQUATE .

BY ORDER OF THE PRESIDENT OF THE COURT DATED 1 OCTOBER 1960, THE COMMISSION OF THE EEC WAS ORDERED TO MAKE AN INTERIM PAYMENT TO THE APPLICANT OF FB 60 000; CONSEQUENTLY, THE AMOUNT OF FB 100 000 TO BE PAID TO THE APPLICANT AS COMPENSATION FOR NON-MATERIAL DAMAGE MUST BE REDUCED BY THE AMOUNT OF THE INTERIM PAYMENT MADE TO HIM . PERIOD OF NOTICE GRANTED BY THE COMMISSION

IT IS ALSO APPROPRIATE TO CONSIDER WHETHER THE PERIOD OF NOTICE GRANTED BY THE COMMISSION IN TERMINATING THE CONTRACT AT ISSUE CONFORMED TO NORMAL PRACTICE .

IN THE ABSENCE OF ANY RELEVANT REQUIREMENTS IN THE CONTRACT OF EMPLOYMENT IT IS OF NO AVAIL TO REFER TO THE CONDITIONS APPLICABLE TO THE TEMPORARY SERVANTS OF THE ECSC, BECAUSE THOSE CONDITIONS MAKE NO PROVISION FOR CONTRACTS OF INDEFINITE DURATION IN THE ENGAGEMENT OF TEMPORARY OFFICIALS; IT IS CONSEQUENTLY NECESSARY TO RELY ON THE GENERAL PRINCIPLES OF LAW AND THE " CONDITIONS OF ENGAGEMENT OF AUXILIARY STAFF ", TO WHICH THE DEFENDANT REFERS .

ARTICLE 2 OF THE SAID CONDITIONS PROVIDES THAT, FOR THE TERMINATION OF CONTRACTS FOR AN INDEFINITE DURATION, THE PERIOD OF NOTICE SHALL BE CALCULATED ON THE BASIS OF ONE DAY'S NOTICE FOR EVERY SEVEN WORKING DAYS .

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THE CONTESTED DECISION OF DISMISSAL PROVIDED FOR A PERIOD OF NOTICE OF ONLY ABOUT ONE MONTH WHEREAS UNDER THE TERMS OF THE AFOREMENTIONED ARTICLE 2 THE PERIOD OF NOTICE OUGHT TO HAVE BEEN LONGER .

HOWEVER, THE PERIOD WAS TWICE EXTENDED BY A MONTH .

IN VIEW OF THIS, AND SINCE THE APPLICANT CONTINUED TO RECEIVE HIS EMOLUMENTS UNTIL THE EXPIRY OF THIS PERIOD, HAVING AT THE SAME TIME HAD THE OPPORTUNITY OF USING IT TO SEEK FRESH EMPLOYMENT, IT FOLLOWS THAT THE PERIOD OF NOTICE ACTUALLY GIVEN BY THE COMMISSION TO THE APPLICANT WAS IN THE REGION OF THREE MONTHS .

BEARING IN MIND THE POSSIBILITIES OPEN TO THE APPLICANT OF FINDING FRESH EMPLOYMENT, THE COURT CONSIDERS THIS PERIOD OF NOTICE TO BE REASONABLE . ACCORDINGLY, NO BLAME ATTACHES TO THE COMMISSION UNDER THIS HEAD .

UNDER ARTICLE 70 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, WITHOUT PREJUDICE TO THE PROVISIONS OF THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THOSE RULES, IN PROCEEDINGS COMMENCED BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 39 ) OF THE AFORESAID RULES, WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

THE APPLICANT HAS FAILED ON THE HEADS OF HIS APPLICATION FOR A RULING THAT HE IS ENTITLED TO SECURITY OF TENURE AND THAT THE PERIOD OF NOTICE GIVEN BY THE DEFENDANT FOR TERMINATION OF THE CONTRACT IN QUESTION WAS ILLEGAL; THE APPLICANT HAS ALSO FAILED ON THE HEAD OF HIS APPLICATION FOR A DECLARATION THAT THE CONTESTED DECISION OF DISMISSAL WAS A MISUSE OF POWERS .

IN CONSEQUENCE THE COSTS MUST BE SHARED .

THE COURT

HEREBY :

1 . ORDERS THE COMMISSION OF THE EEC TO PAY TO MR R.P.M . FIDDELAAR THE SUM OF FB 100 000, FROM WHICH SHALL BE DEDUCTED THE SUM OF FB 60 000 BEING THE INTERIM PAYMENT MADE UNDER THE ORDER OF THE PRESIENT OF THE COURT OF 1 OCTOBER 1960;

2 . AWARDS MR FIDDELAAR TWO-THIRDS OF HIS COSTS AGAINST THE COMMISSION OF THE EEC, AND ORDERS THE LATTER TO BEAR ITS OWN COSTS;

3 . ORDERS MR R.P.M . FIDDELAAR TO BEAR THE COSTS WHICH HE INCURRED IN THE PROCEEDINGS FOR THE PURPOSE OF OBTAINING A STAY OF EXECUTION OF THE CONTESTED DECISION AND DURING THE MEASURE OF INQUIRY ORDERED BY THE COURT;

4 . ORDERS THE COMMISSION OF THE EEC TO PAY THE COSTS OF THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES .