Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

The applicant in the case on which I shall give my views today entered the service of the Commission as a temporary servant in Grade A 3 on a two-year contract which was concluded on 14 July 1975 and took effect on 15 August 1975. Initially he was employed as Head of the Administration and Personnel Division at the Joint Nuclear Research Centre in Ispra. From 16 March 1977 he worked at the Joint Nuclear Research Centre in Petten as Head of the Administration and Infrastructure Division. His original contract of employment was replaced on 26 May 1977 by a contract for an indefinite period concluded pursuant to the combined provisions of Articles 2 (d) and 8 of the Conditions of Employment of Other Servants. Clause 5 of that contract, which took effect on 1 November 1976, allowed employment to be terminated in accordance with Articles 47 to 50 of the Conditions of Employment of Other Servants; under those provisions the period of notice required depended on the length of service (one month for each year of service subject to a minimum of three months and a maximum of ten months). As the applicant's 12-year-old son, who was seriously ill with heart disease, needed to undergo an operation in the USA which in fact led to his death a few months later, the applicant was assigned to the Commission's delegation in Washington with effect from 15 February 1978 in order to enable him to stay near his son. During that period (in April 1978) he was the victim of a street assault and received severe gunshot wounds. This resulted in a partial permanent invalidity for which compensation calculated initially at 20% and later at 27% was paid to him in pursuance of Article 73 of the Staff Regulations.

At the beginning of September 1978 the applicant resumed work in Petten. Several memoranda were sent to him during the course of that year criticizing the manner in which he was performing his duties, and he was subsequently notified by a letter dated 1 February 1979 from the Director-General of the Joint Research Centre that his employment was to be terminated with effect from 15 May 1979. His dismissal did not in fact take effect until 15 August 1979 because the applicant was sick and therefore his period of notice commenced running later in accordance with Article 47 (2) (a) of the Conditions of Employment of Other Servants.

The applicant submitted a complaint against his dismissal on 27 April 1979. This was rejected by a decision of 17 October 1979 notified to the applicant on 25 October 1979.

Thereupon the applicant appealed to the Court of Justice on 16 January 1980. His conclusions, as amended by his reply, request the Court to :

1. Annul the decision dismissing him notified by the letter of 1 February 1979 from the Director-General of the Joint Research Centre; 2. In the alternative, Order that the dismissal decision shall not take effect until the Council of Ministers has taken a decision on a proposal from the Commission to amend the Conditions of Employment of Other Servants (as regards the protection of dismissed temporary staff against the risks of unemployment, sickness and invalidity), or at least until the defendant has arranged for the applicant to be covered against such risks, and order that his contract shall meanwhile continue in force with retroactive effect from 15 August 1979; 3. In the further alternative, Order the defendant to adopt such measures as are necessary to enable the applicant to enjoy from the date on which his contract expires social protection in accordance with that laid down for temporary servants in the defendant's proposal for a regulation amending the Conditions of Employment of Other Servants or, at least, order the defendant to adopt the measures necessary to enable the applicant to enjoy from the above-mentioned date social protection in the form in which it will be provided by a Council regulation to be adopted as a result of the defendant's proposal; 4. In the still further alternative, Declare that the applicant should have been granted a period of notice of 10 months; Consequently, order the defendant to pay the applicant by way of compensation a sum equal to six and a half months' remuneration with interest thereon at the rate of 8% per annum from 15 August 1979; 5. In any event, Annul the decision rejecting the complaint submitted by the applicant on 27 April 1979.

The Commission contends that the Court should dismiss the application.

My views on the submissions of the parties are as follows:

1. It is common ground that the applicant's contract of employment was terminated because his employer came to the conclusion that the applicant was not sufficiently competent to perform the duties entrusted to him.

2. The applicant's next claim — although not repeated in his reply — is to the effect that, because his employment was terminated for imcompetence, it was necessary to observe Article 51 of the Staff Regulations, which provides that the reasons on which the dismissal is based are to be communicated and an opportunity given to make any comments thereon. Furthermore, the decision to dismiss him should have been taken in accordance with the disciplinary procedure laid down by Annex IX to the Staff Regulations, involving in particular the intervention of the Disciplinary Board. That procedure should at least have been considered, according to the applicant, because the system established by Article 2 (d) of the Conditions of Employment of Other Servants replaced the conditions laid down by the Staff Regulations and because to a large extent such staff — in any event this is so in the applicant's case — performed for an indefinite period the same duties as Community officials.

3. In his third and final submission the applicant relies on a number of general principles such as the duty of assistance and the principles of equity and social security, and alleges a wrongful omission on the part of the Commission and a misuse of its power of dismissal.

4. I therefore conclude by proposing that the Court should decide that none of the claims pleaded by the applicant is well founded; however, it should also declare as a matter of principle that there has been a wrongful omission on the part of the institutions because a scheme for protection against the risk of unemployment on termination of employment on a contractual basis was not introduced into Community law in good time. However, liability to pay compensation amounting to 80% of the applicant's final annual basic salary can only arise if it is proved beyond doubt that following the termination of his employment the applicant was unemployed for at least one year and endeavoured without success to find appropriate employment. A period should be specified within which the applicant is to furnish such proof. The parties would then have to inform the Court of the state of their dispute and of any settlement which may be reached on the question of compensation. Accordingly, costs may be reserved for the time being.

1 Translated from the German.