Opinion of mr advocate general Reischl

Mr President,

Members of the Court,

The applicant in this case has been employed by the European Communities in their Information Office since January 1961. The very unusual nature of the employer and employee relationship in her case has led to these proceedings.

At the beginning the applicant had a contract as an expert which was repeatedly extended, on the last occasion until 28 February 1964. From 1 March 1964 she was employed as a member of the auxiliary staff within the meaning of Article 3 of the Conditions of Employment of Other Servants; this contract too was repeatedly extended, on the last occasion until 31 December 1968. With effect from 1 January 1969 there ensued a period of employment as a member of the temporary staff within the meaning of Article 2 of the Conditions of Employment of Other Servants. This lasted first of all until 31 December 1969 and was subsequently extended until 31 December 1971. This was followed once again by a contract employing the applicant as a member of the auxiliary staff which then lasted, with an extension, until 30 November 1972. From 1 December 1972, the applicant, as provided in a decision of 7 February 1973, was a probationary official; with effect from 1 September 1973 she was finally established as a permanent official by a decision of 22 October 1973.

In the present proceedings the applicant, who has declared that essentially she has always carried out the same duties as a principal administrator, is concerned to ensure that the periods during which she was employed as an expert and as a member of the auxiliary staff and for which, as regards the time as an expert, no social insurance contributions were paid by the Community or, as concerns the employment as a member of the auxiliary staff, she was insured with the Belgian social insurance, are taken into account in assessing the retirement pension to which she will one day become entitled under the Staff Regulations.

For this purpose she applied on 21 June 1976 to the Head of the Individual Rights and Privileges Division. She asked that for the periods already mentioned (1 January 1961 to 28 February 1964; 1 March 1964 to 31 December 1968; 1 January 1972 to 30 November 1972) she should be permitted to buy in additional pension rights within the meaning of Article 11 of Annex VIII to the Staff Regulations. To that application she received a notification dated 2 July 1976 that the transfer to the Community of the rights acquired under the Belgian social insurance was not possible owing to the absence of an agreement for that prupose.

As a result the applicant made a further application on 13 August 1976 to the Head of the Individual Rights and Privileges Division. This time she did not mention buying in pension rights but expressed the view that the periods in question should be assimilated, for purposes of the rules relating to pension, to periods of employment as an official or a member of the temporary staff. This, she claimed, was at any rate so as regards the second period of employment as a member of the auxiliary staff since that followed immediately on the period during which the applicant had been a member of the temporary staff and for which it was beyond doubt that it must be taken into consideration in the context of the rules relating to pension. To this the applicant received a reply dated 14 September 1976 to the effect that the period during which she had been employed as a member of the temporary staff could indeed be taken into consideration in accordance with Article 3 (c) of Annex VIII to the Staff Regulations for the purpose of calculation of pension. However, as regards the second period of employment of the applicant as a member of the auxiliary staff an assimilation to periods of employment as an official was impossible; for this it would only be possible to buy in pension rights within the meaning of Article 11 (2) of Annex VIII to the Staff Regulations. As regards the period during which the applicant had been employed as an expert, her application to buy in pension rights was still being considered.

In a further approach to the Head of the Individual Rights and Privileges Division dated 17 March 1977 the applicant repeated her point of view that both her period of service as an expert and that as a member of the auxiliary staff should be assimilated to periods of service as an official for the purpose of her rights to pension as during those periods the applicant had worked under the same conditions as officials. Furthermore, as regards her employment as a member of the auxiliary staff, it should be borne in mind that it had been interrupted by a period during which the applicant had been a member of the temporary staff. To this the Director of Personnel replied in a note of 30 June 1977 that it was not possible to take into account in the calculation of her entitlement to pension the period during which she had been employed as an expert.

Thereupon the applicant on 20 July 1977 lodged with the appointing authority a formal complaint in pursuance of Article 90 of the Staff Regulations. In it she criticized the decision contained in the note to which reference has just been made and claimed afresh that the periods in which she had been employed as an expert and as a member of the auxiliary staff should be assimilated for the purpose of the rules relating to pension to periods served by officials or members of the temporary staff. This complaint received a reply in a letter of 15 February 1978 signed by a member of the Commission in which reference was made to the fact that for the periods in which she had been employed as a member of the auxiliary staff the applicant had pension rights as against the Belgian social insurance, to which the Commission had paid contributions In relation to her period as an expert it would be necessary to carry out a comprehensive examination of the question on a general basis; the applicant would be informed of the result as soon as it was known.

On 17 February 1978 the applicant brought an action before the Court claiming:

My view on these claims is as follows:

I — Admissibility

The admissibility of the application is contested by the Commission from several points of view.

1. Above all it expresses the view that the applicant has no present interest in obtaining a clarification -of questions concerning her future rights to retirement pension. It contends that such rights arise only with actual retirement and are therefore dependent on an uncertain future event; they also depend on the precondition that there has been a minimum period of service of 10 years (Article 77 of the Staff Regulations). Observations of the administration relating thereto have therefore no immediate legal consequences for the applicant's present situation. It should also be borne in mind that the point of view of the administration might change and that the Staff Regulations might be amended in this respect. The applicant has therefore at the most an abstract interest in the interpretation of the Staff Regulations. If this were to be regarded as sufficient it would more or less amount to enabling the public to undertake test actions on matters of general interest and in any case would create the risk of the bringing of all possible types of action with regard to the application of provisions of law to situations not yet existent and which might in fact never come to pass.

2. Next the Commission contends that the application is also inadmissible because the statements of its administration in connexion with the question of the taking into account of the applicant's earlier periods of employment as regards the calculation of her pension are merely information about intended future behaviour, that is to say at the most preparatory acts but not acts adversely affecting an official within the meaning of Article 91 of the Staff Regulations. In fact, it is claimed, these statements had no immediate results in the sense of a definitive adverse effect; this would only arise with the fixing of the pension, for which the statements referred to represent merely one factor of several to be taken into account.

3. We must also inquire whether the admissibility of the application may be contested on the ground that the applicant did not lodge her application in due time having regard to the prescribed periods for bringing an action before the Court.

4. Finally the Commission objects to the fact that the application contains a request for a declaration; it further complains that the application is defective inasmuch as it speaks only of annulment of the implied rejection of the complaint and that the acts adversely affecting the applicant which are really at issue, namely the notes of 14 September 1976 and 30 June 1977 have not been mentioned.

II — Substance

The substance of the action concerns the question whether the applicant's periods of employment as an expert or as a member of the auxiliary staff are to be taken into acount in calculating the amount of her pension. In the applicant's view this should be accepted on three grounds.

1. First of all there is her argument that the contracts to which she refers were in fact, despite the name given to them at that time by the parties, to be regarded, on the basis of objective data, as contracts for the employment of temporary staff within the meaning of Article 2 of the Conditions of Employment of Other Servants. Even during the time of her employment as an expert the applicant was in a relationship of subordination to the Commission and had acted exclusively for the Commission. Furthermore she always carried out the same duties, which previously had not been undertaken by anybody, and therefore in particular she did not replace an official or other employee who was for the time being unable to perform his duties. Finally, at least since 1963 the detailed list of posts applicable to her department showed a permanent post the duties of which corresponded to those of the applicant.

2. In the second place the applicant claims that the Commission was guilty of a wrongful act or omission in determining the nature of her contract of employment. They wrongly treated the applicant as an expert; with regard to the contracts for appointment as a member of the auxiliary staff it must be objected that they applied for more than one year and that this arrangement was selected again after the applicant had already been employed for three years as a member of the temporary staff. She claims that this represents an infringement of Article 52 of the Conditions of Employment as well as of the duty to assist employees to which reference is made in Article 54 of the Conditions of Employment by reference to Article 24 of the Staff Regulations of Officials. The applicant in this way suffered damage because the relevant periods were not taken into account for the calculation of her pension. She claims that for this the most appropriate compensation would be as it were in kind, that is to say by the periods in question being treated in the same way as periods of employment of temporary staff.

3. Finally the applicant bases her claim also upon the principles of equity, equality of treatment, justice and good administration, which are breached by the refusal of the Commission to equate the periods in which the applicant was employed as an expert or as a member of the auxiliary staff with periods of employment under Article 2 of the Conditions of Employment or in any event for the calculation of pension. The applicant claims that as she actually served without interruption from 1961 to 1972 in a similar capacity to an official and as there had been from the beginning an intention to employ her permanently it must appear in the highest degree unjust not to take this into account in the pension. In addition it is of interest that in the case of another employee the procedure adopted was in accordance with her argument and that after his appointment as an official the time which he had spent as an expert working for the Community was recognized as capable of being taken into account for pension purposes.

4. Thus it may be stated that the refusal of the Commission to recognize the periods of service performed by the applicant as an expert or as a member of the auxiliary staff for the calculation of her pension is unlawful in so far as it concerns the period from the beginning of 1964. On this understanding and taking into account the necessity to make back payments of contributions and to avoid the applicant's being entitled to claim for the period in question both payments from the Belgian social insurance and payments of pension under Community law, the statements made by the administration of the Commission referred to in the applicant's complaint should be annulled. As regards the costs of the action, as in my view the applicant has to a considerable extent won her case, I should regard it as appropriate to order the Commission to pay two thirds of her costs.

1 Translated from the German.