JUDGMENT OF 13. 5. 1970 — CASE 39/69 FOURNIER v COMMISSION

In Case 39/69

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 and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. The legal basis of the decision challenged

2. The fraudulent nature of the decision challenged

3. Rights created by the decision of 28 March 1969

Grounds of judgment

Admissibility

Substance

Costs

I —. Facts and procedure

II —. Conclusions of the parties

(1). Annul the decision of 13 May 1969;

(2). Having done so, order the Commission of the European Communities to pay Mr Fournier the sum of seventy-seven thousand and ninety-three Belgian francs with the interest fixed by law, as compensation for 47 days' leave not taken owing to the requirements of the service during the period of his employment as an auxiliary servant ;

(3). Order the Commission of the European Communities to pay all costs.

III —. Submissions and arguments of the parties

1. The legal basis of the decision challenged

2. The fraudulent nature of the decision challenged

3. Rights created by the decision of 28 March 1969

1. The first claim in the application is for the annulment of the decision of 13 May 1969 whereby the Director General for Personnel and Administration refused the applicant compensation for 47 days' leave which he had been unable to take owing the requirements of the service during the period of his employment as a member of the auxiliary staff; the second claim is that the Commission should be ordered to pay the applicant the sum of Bfrs. 77093 representing compensation for those days of leave together with interest as fixed by law.

2. The compensation in question was refused on the ground that the applicant, having been appointed to the temporary staff in Grade B 1 with effect from 1 January 1969, thereby remained continuously in the service of the Commission even though in a different capacity.

3. The decision challenged allowed the applicant to carry forward only 29 days of the leave he had not taken, applying the provisions of a notice which appeared in Staff Courier No 41 of 7 November 1968.

4. The question of compensation for the leave which the applicant had been unable to take was referred, in accordance with Article 31 of the Financial Regulation of the Communities of 30 July 1968 to the Director General for Personnel and Administration, as the authorizing officer in connexion with the expenditure; but he refused the compensation.

5. That decision amounts to an act capable of adversely affecting the applicant.

6. The application is therefore admissible.

7. Under Article 58 of the Conditions of Employment of Other Servants, where it has not been possible, owing to the requirements of the service, for a member of the auxiliary staff to be given leave during his employment, any days of leave not taken shall be paid for as extra days worked.

8. The question to be decided is whether this provision applies when the servant remains, subsequently, in the employment of the institution to which he is attached in a capacity other than that of auxiliary servant.

9. The defendant claims that the carrying forward of leave not taken is to be regarded as the rule.

10. The Commission states that, as far as auxiliary servants are concerned, financial compensation under Article 58 is only justified by the fact that for such servants it is frequently impossible to carry forward leave bearing in mind the brevity of the term of their employment and the lack of certainty that their contract will be renewed.

11. However, where a member of the auxiliary staff is appointed to the temporary staff for a fixed period, the limitation on the duration of his contract and the uncertainty whether or not it will be extended make it impracticable to contemplate carrying forward his leave.

12. In the present case the applicant was engaged as a temporary servant for a period of three months from 1 January 1969; his contract was then extended for successive periods of four, five or six months until 30 June 1970.

13. In the circumstances a reasonable expectancy that leave could be carried forward would be, at the least, subject to chance, so that the underlying purpose of Article 58 of the Conditions of Employment of Other Servants retain their force in the present case.

14. Accordingly there is no need to examine the legality of the communication of 7 November 1968 limiting the amount of unused leave which could be carried forward to 29 days, as it is inapplicable in this case.

15. The application for annulment is well founded.

16. It is not denied that the applicant had, on 31 December 1968, a total of 47 days' leave which he had not been able to take owing to the requirements of the service.

17. According to the applicant, the compensation amounts to a total of Bfrs. 77093, which has not been contested by the defendant.

18. In the circumstances he is entitled to that sum and in addition as requested in the application to interest thereon assessed in this case at 4.5 % from the date on which the application was lodged.

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

20. The defendant has failed in its submissions.

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 Staff Regulations of Officials and the Conditions of Employment of Other Servants; Having regard to the Protocol on the Statute of the Court of Justice of the European Community ; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby :

1 Annuls the decision of 13 May 1969 of the Director General for Personnel and Administration;

2 Orders the Commission of the European Communities to pay the applicant the sum of seventy-seven thousand and ninety-three Belgian francs, with interest thereon at 4.5 % from the date on which the application was lodged;

3 Orders the defendant to pay the costs.