JUDGMENT OF 19.3.64 — CASE 18/63 WOLLAST v EEC
In Case 18/63
THE COURT composed of: A. Trabucchi, President of the Chamber, L. Delvaux and W. Strauß (Rapporteur), Judges, Advocate-General: M. Lagrange Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
II — Designation of the defendant; conclusions of the parties
III — Submissions of the parties
1. As to the first head of the conclusions
A — First submission: lack of competence
B — Second submission: disregard of the applicant's right under the procedure prescribed by Article 102 of the Staff Regulations of officials
2. As to the second head of the conclusions
A — First submission: Absence or inadequacy of reasoning
B — Second submission: Misuse of powers
C — Third submission: Misuse of rights
D — Continuation of the contract (second head of the conclusions, paragraph 2)
3. Third head of the conclusions
4. Fourth head of the conclusions
5. Sixth (sic) head of the conclusions according to the application
6. Sixth head of the conclusions according to the reply
IV — Procedure
Grounds of judgment
I — Admissibility
II — As to the alleged grounds of complaint
1. On the second head of the application
2. As to the first head of the application
3. As to the third head of the application
4. As to the fourth head of the application
5. As to the sixth head of the application
III — Costs
I —. Facts
1. The applicant is a qualified nurse. By a letter of 28 July 1959 the Commission of the European Economic Community informed her that it was willing to engage her as a nurse on the following conditions:
2. On 1 January 1962 Regulation No 31 of the Councils of the EEC and the EAEC, laying down the Staff Regulations of officials and the Conditions of Employment of Other Servants of the Communities (Official Journal of 14 June 1962, pp. 1385/62 et seq.) entered into force.
3. By a letter of 22 August 1962 the Commission extended the contract to 31 October 1962.
4. In No 14 of the Communications to the staff of the European Economic Community of 19 September 1962, the Commission announced two vacancies for nurses (notices of vacancy Nos 87 and 88).
5. On 30 October 1962, by order of the administration, the applicant was heard with regard to an incident which gave rise to a complaint by Mr Albrecht, another official of the Commission. On 29 October 1962 a motor accident had occurred in the immediate vicinity of the Commission's offices. Mr Albrecht had ordered the applicant, who at that time was on duty, to make her way to the scene of the accident with her first-aid kit. He complained that the applicant did not follow his instructions with the necessary diligence and, in the presence of the crowd surrounding the accident, refused to intervene. He also criticized her for not having brought her first-aid kit with her.
6. By a letter of 20 November 1962, Mr Smulders informed the applicant that her contract was extended to 31 December 1962 but that this extension did not in any way prejudice the decision which will be taken at the end of the inquiry (on the above-mentioned accident).
7. By a letter of 20 December 1962, Mr Smulders informed the applicant that her contract was extended to 31 January 1963 but that she was relieved from duty with effect from 1 January 1963. In addition the applicant was told that this extension did not in any way prejudice the decision on the possibility, if appropriate, of a further extension of the contract. Following this, the applicant sent a number of supporting statements justifying her conduct to different members of the Commission.
8. On 31 January 1963 the Commission informed the applicant that her contract would not be renewed.
9. By a letter of 20 February 1963 the applicant asked Mr Smulders whether the Commission envisaged in her case implementing the integration procedure provided for by Article 102 of the Staff Regulations. She also asked to be informed in any case of any measures which the Commission intended to take with regard to her. She pointed out that her letter was to be considered as a request and a complaint within the meaning of Article 90 of the Staff Regulations and of Article 73 of the Conditions of Employment of Other Servants.
10. On 20 March 1963 the applicant made the present application.
II —. Designation of the defendant; conclusions of the parties
1. The applicant directs her application against the European Economic Community or, alternatively, against the Commission, both of whom she designates as the opposing parties. In this respect she points out that Article 91 of the Staff Regulations confers on the Court of Justice of the European Communities jurisdiction in any dispute between one of the Communities and a person to whom the Regulations apply. In addition, Article 211 of the Treaty establishing the EEC provides that the Community shall be represented in legal proceedings by the Commission.
2. In her application the applicant puts forward the following conclusions:
III —. Submissions of the parties
1. As to the first head of the conclusions
A —. First submission: lack of competence
B —. Second submission: disregard of the applicant's right under the procedure prescribed by Article 102 of the Staff Regulations of officials
2. As to the second head of the conclusions
A —. First submission: Absence or inadequacy of reasoning
1. Up to the signing of the contract of 13 April 1962 the parties were indisputably bound by a contract for an indefinite period.
2. The new contract continued as a plurality of alleged contracts for a fixed period. Not even on the occasion of the final extension which occurred on 21 December 1962 did the Commission exclude the possibility of a further extension. One can speak here of a chain contract of the type which exists in the labour law of Member States.
3. The Commission took care that the applicant always received approximately the same overall salary even if the different elements were not always of the same amount.
B —. Second submission: Misuse of powers
C —. Third submission: Misuse of rights
D —. Continuation of the contract (second head of the conclusions, paragraph 2)
3. Third head of the conclusions
4. Fourth head of the conclusions
5. Sixth (sic) head of the conclusions according to the application
(a). The applicant does not maintain her reservations;
(b). There is now no point in this head since, in the reply, the applicant raised fresh issues necessary to refute those put forward in the statements of defence:
(c). The applicant interprets the arguments in the statement of defence as meaning that the defendant does not contest the facts which have been set out in the application. The offer that witnesses should give evidence is thus no longer necessary. With regard to point (c) the defendant replies that, even in its statement of defence, it contested in a very definite manner the applicant's assertions that the administration had given her assurances concerning her integration. The defendant maintains its denial.
6. Sixth head of the conclusions according to the reply
IV —. Procedure
1. By an order of 13 November 1963 the First Chamber of the Court of Justice granted the applicant legal aid up to a limit of 30000 BF.
2. By Orders of 14 and 28 November 1963, as well as of 3 December 1963, the First -Chamber of the Court of Justice ordered the examination of the following witnesses:
3. By Order of 14 November 1963, the First Chamber of the Court ordered the parties to produce certain document and to reply to certain questions.
4. The hearing took place in open court on 11 December 1963.
5. On 28 January 1964 the Advocate-General delivered his opinion.
I —. Admissibility
II —. As to the alleged grounds of complaint
1. On the second head of the application
(a). The defendant denies that there was a decision to terminate as the applicant's contract was for a fixed period and, in the absence of extension, it therefore came to an end ipso jure on 31 January 1963.
(b). The defendant has admitted that the reason for this decision was the applicant's conduct at the accident of 29 October 1962. As this is a matter of an appeal in which the Court has unlimited jurisdiction under Article 91 (1) of the Staff Regulations, the Court is empowered to examine the merits of the said reason. In so doing the Court relies in particular on the evidence of the witnesses heard with regard to the incident in question.
(c). The applicant further submits that the Court should declare that she must still be regarded as being in the service of the Commission under the terms and conditions of the contract of employment of 13 April 1962, for an indefinite period, but without prejudice to the reservations made by the applicant with regard to her classification. As has been stated, since this appeal is one in which the Court has unlimited jurisdiction, these conclusions are admissible.
(d). Finally, the applicant claims that the Court should declare that the defendant owes the applicant her monthly salary from 1 February 1963.
2. As to the first head of the application
(a). According to the defendant the letter impugned is not a decision again which an appeal can be lodged. This letter in fact followed a letter from the applicant described by her as a request or a complaint within the meaning of Article 73 of the Conditions of Employment of Other Servants and of Article 90 of the Staff Regulations of officials, whereas the applicant was unable to have recourse to the procedure prescribed in the above-mentioned provisions by reason of the fact that she was no longer in the service of the defendant. This objection must be dismissed. In fact as the above procedure is a preliminary to an appeal to the Court, it may be used in all cases which may give rise to an appeal to the Court, including cases in which the dispute is concerned specifically with the legality of the expulsion of a servant from the ranks of the staff.
(b). The defendant raises another objection of inadmissibility based on alleged estoppel.
(c). Any right on the part of the applicant to take advantage of the integration procedure depends essentially on the question whether, on the entry into force of the Staff Regulations, that is to say, 1 January 1962, she was occupying a permanent post with the Commission. This concept only covers the posts expressly prescribed as permanent, or described in a similar manner, in the budget of the Community. This interpretation is confirmed by Article 1 of the Staff Regulations according to which the position of an official is characterized by the fact of having been appointed to a permanent post; this is by contrast in particular with auxiliary staff who are governed by the Conditions of Employment of Other Servants.
3. As to the third head of the application
4. As to the fourth head of the application
5. As to the sixth head of the application
III —. Costs
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the witnesses; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Staff Regulations of officials of the European Economic Community and the Conditions of Employment of Other Servants of that Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (First Chamber) hereby:
1 (a) Annuls the defendant's decision not to extend the applicant's contract beyond 31 January 1963; (b) Orders that the applicant must be deemed to be still in the defendant's service under the material conditions which governed her contract on 31 January 1963; (c) Orders the defendant to pay the applicant in the circumstances set out under (b) above her monthly salary from 1 February 1963, reduced by 15 % for the period between 1 February 1963 and the date of delivery of this judgment; (d) Rules that the applicant is entitled to the other benefits arising from her contract, in particular with regard to social security and medical aid, under the conditions set out under (b) above;
(a) Annuls the defendant's decision not to extend the applicant's contract beyond 31 January 1963;
(b) Orders that the applicant must be deemed to be still in the defendant's service under the material conditions which governed her contract on 31 January 1963;
(c) Orders the defendant to pay the applicant in the circumstances set out under (b) above her monthly salary from 1 February 1963, reduced by 15 % for the period between 1 February 1963 and the date of delivery of this judgment;
(d) Rules that the applicant is entitled to the other benefits arising from her contract, in particular with regard to social security and medical aid, under the conditions set out under (b) above;
2 (a) Dismisses the request for the annulment of the decision contained in the letter of 1 March 1963 addressed to the applicant by Mr Smulders, declaring that the establishment procedure referred to in Article 102 of the Staff Regulations of officials of the EEC cannot be applied to her: (b) Orders the defendant to allow the applicant to take part in the competition organized pursuant to Article 29 (1) (b) of the Staff Regulations of officials of the EEC for the post specified in Notice of Vacancy No 87 of the Commission; (c) Orders that, for the purposes of the said competition, the defendant shall not hold against the applicant her conduct at the incident on 29 October 1962;
(a) Dismisses the request for the annulment of the decision contained in the letter of 1 March 1963 addressed to the applicant by Mr Smulders, declaring that the establishment procedure referred to in Article 102 of the Staff Regulations of officials of the EEC cannot be applied to her:
(b) Orders the defendant to allow the applicant to take part in the competition organized pursuant to Article 29 (1) (b) of the Staff Regulations of officials of the EEC for the post specified in Notice of Vacancy No 87 of the Commission;
(c) Orders that, for the purposes of the said competition, the defendant shall not hold against the applicant her conduct at the incident on 29 October 1962;
3 Dismisses the request for annulment of the suspension from duty of the applicant during the month of January 1963 and the conclusion that the defendant pay the applicant 1 FB by way of damages;
4 (a) Orders the defendant to pay the costs of the action; (b) Orders the defendant to reimburse the Court for the costs incurred by it in respect of legal aid.
(a) Orders the defendant to pay the costs of the action;
(b) Orders the defendant to reimburse the Court for the costs incurred by it in respect of legal aid.