JUDGMENT OF 13. 5. 1970 — CASE 18/69 FOURNIER v COMMISSION

In Case 18/69

THE COURT (First Chamber) composed of: R. Monaco, President of Chamber, A. M. Donner and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility

B — Substance

1. Infringement of Article 52 of the Conditions of Employment of Other Servants and infringement of the applicant's rights

2. Infringement of the applicant's vested rights

3. Misuse of powers and irregular competition procedure

IV — Procedure

Grounds of judgment

Admissibility

Costs

I —. Facts

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

A —. Admissibility

B —. Substance

1. Infringement of Article 52 of the Conditions of Employment of Other Servants and infringement of the applicant's rights

2. Infringement of the applicant's vested rights

3. Misuse of powers and irregular competition procedure

IV —. Procedure

1. The applicant was engaged on 12 August 1964 as an auxiliary servant of the EEC in Group I of Category A for a period of six months, and his contract was extended by successive periods until 31 December 1968.

2. On 19 December 1968 he submitted a request to the Commission under Article 90 of the Staff Regulations asking to be established in Grade A 4.

3. On 23 December 1968 he was appointed a temporary servant in Grade B 1, Step 3, for a period of three months which was later extended by successive periods until 30 June 1970.

4. The application is for the annulment of the implied decision refusing the request for establishment resulting from the failure of the Commission to reply within a period of two months to the applicant's complaint through the official channels and for a ruling that the applicant is to be established in Grade A 4.

5. The applicant bases his request for establishment on the fact that he remained an auxiliary servant in the service of the Commission for several years, whereas under Article 52 of the Conditions of Employment of Other Servants the period of employment of an auxiliary servant may not exceed one year unless he is a temporary replacement for another member of staff, and besides this on the fact that his superiors in the service have acknowledged his eligibility for a Grade A 4 post.

6. He adds that during the preceding years he applied on a number of occasions for vacant posts, in particular those in Grade A to be filled by way of competition, and he suggests that irregularities occurred in connexion with these competitions.

7. None of these competitions however has been made the subject of a complaint or an application for annulment by him.

8. Even if the illegality of the successive extensions of his contract alleged by the applicant were established, his complaint through official channels and his application to the Court have as their object something which the Commission has no power to do because the appointment and establishment of servants may only be effected in accordance with the requirements and procedures laid down by the Staff Regulations.

9. Furthermore he has failed to indicate the legal basis for any part of his application.

10. Accordingly the application must be dismissed as inadmissible.

11. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

12. The applicant has been unsuccessful in his claims.

13. However, under Article 70 of the Rules of Procedure in proceedings by servants of the Communities institutions shall bear their own costs.

On those grounds, 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 Treaty establishing the European Economic Community especially Article 179; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to the Staff Regulations of Officials of the European Communities, especially Article 91 ; Having regard to the Conditions of Employment of Other Servants of the European Communities, especially Article 52; THE COURT (First Chamber) hereby :

1 Dismisses the application as inadmissible;

2 Orders each party to bear its own costs.