JUDGMENT OF 16.12.1960 — CASE 44/59 FIDDELAAR v COMMISSION

In Case 44/59

THE COURT composed of: A. M. Donner, President, Ch. L. Hammes, President of Chamber, O. Riese, L. Delvaux, Judges and R. Rossi (Judge-Rapporteur), Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Conclusions of the parties

II — Facts

III — Submissions and arguments of the parties

1. Admissibility

2. Substance

Submission based on infringement of the rules of law applicable to the conditions of employment of the applicant

Submissions based on misuse of powers in respect of the applicant

Submission based on infringement of essential procedural requirements because of the absence of a statement of reasons

Wrongful act committed by the defendant

Submission based on infringement of the rules of Belgian law concerning the terms of contracts of service under private law

IV — Procedure

Grounds of judgment

Jurisdiction of the Court

Admissibility

Substance

Legal nature of the contract of employment

Existence of a right to security of tenure

Submission concerning misuse of powers

Statement of reasons for the decision of dismissal

Period of notice granted by the Commission

Costs

I —. Conclusions of the parties

1. Declare null and void the decision of dismissal communicated to the applicant by letter of 24 July 1959 and confirmed by letter to him of 14 August 1959;

2. Rule that the applicant shall be deemed to be appointed on a provisional basis as an official or servant in the Language Department in Grade L/C, Step 1, and that he shall receive the remuneration, allowances and privileges appropriate to that grade under the same conditions as officials and servants in the same category engaged on a provisional basis;

II —. Facts

III —. Submissions and arguments of the parties

1. Admissibility

2. Substance

(a). no decision to make an appointment in conformity with the procedure followed for the engagement of servants appointed to a permanent post was taken as regards the applicant;

(b). the appropriate letter of appointment, always addressed to the said servants was not addressed to the applicant;

(c). the mode of remunerating the applicant differed from that of the servants on the strength of the establishment since the necessary funds were charged to the item in the budget expressly intended to cover expenditure arising from the remuneration of temporary staff and the fees of free-lance interpreters.

(d). the remuneration of the applicants was never subject to any deduction either for contributions to the sickness fund or for the establishment of an insurance fund. The decision to allocate a birth grant to the applicant cannot be regarded as amounting to access to the sickness fund because it consisted of ex gratia and exceptional assistance which was charged to the budgetary item special assistance.

IV —. Procedure

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.

2. The applicant claims, in the alternative, that the defendant should be ordered to pay compensation for non-material damage.

(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.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Order of the President of the Court of 20 October 1959; Having regard to the Order of the Court of 20 June 1960; Having regard to the Order of the President of the Court of 1 October 1960; Having regard to the first paragraph of Article 173 and Articles 178, 179,181, 183, 189, 190, 210, 212, 215 and 246 (3) of the Treaty establishing the EEC; Having regard to the Protocol on the Statute of the Court of Justice of the EEC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT hereby:

1 Orders the Commission of the EEC to pay to Mr R. P. M. Fiddelaar the sum of FB 100000, from which shall be deducted the sum of FB 60000 being the interim payment made under the Order of the President 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.

1 Judgment No II in In re Desgranges delivered on 12 August 1953.