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

The facts may be summarized as follows:

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: The applicant accepted these conditions.

‘1) You are engaged as a member of the auxiliary staff. Your contract will in principle expire at the end of the month of your entry into service. But, in the absence of a declaration by the Commision to the contrary or one expressed by you at least one week before the end of the said month and in the absence of such a declaration before the expiry of each month thereafter, you may assume that the contract will be extended to the end of the following month. …

5) In addition, you will be subject to the provisions adopted by the Commission regarding the employment of auxiliary staff. …’

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. By a letter of 13 April 1962, the Director-General of Administration of the Commission, Mr Smulders, sent the applicant a draft of a new contract of employment which provided in particular that: In spite of some reservations the applicant signed this draft in the second half of May.

‘Article 1

The Commission shall engage Mrs Wollast as a member of the auxiliary staff. Her duties shall commence on 1 January 1962.

By accepting this contract, the servant shall be subject to the Conditions of Employment of Other Servants of the Communities and to the provisions made in implementation thereof.

Article 2

The principal duties of the servant shall be those of a nurse.

…

Article 3

This contract shall be for the period from 1 January 1962 to 31 July 1962. However, the contract may be terminated under Articles 74, 75, 76 and 77 of the Conditions of Employment of Other Servants of the Community for the reasons set out therein.’

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). On 4 October 1962 the applicant presented her written application for the position announced in notice of vacancy No 87. By a letter of 30 October 1962, the administration informed the applicant that because she was engaged as a member of the auxiliary staff her application for promotion or transfer (Article 29 (1) (a) of the Staff Regulations) could not be considered but she could nevertheless resubmit her application as soon as an internal competition was arranged for the position in question (subparagraph (b) of the above-mentioned provision).

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. Following this examination the Commission set up a more detailed inquiry.

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. By a letter of 1 March 1963 Mr Smulders replied to her that it was impossible to apply Article 102 in her case ‘as it refers expressly and exclusively to servants occupying a permanent post and not to auxiliary staff who, like yourself, have been engaged on the basis of a contract of limited duration, which, moreover, as it was not extended, expired on 31 January 1963’.

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. The defendant has nothing to say on this point. Its written statements are drawn up exclusively in the name of the Commission.

2. In her application the applicant puts forward the following conclusions:

1) ‘Declare null and void the decision of 1 March 1963 by which Mr Smulders informed the applicant that she could not be integrated under the procedure provided for in Article 102 of Regulation No 31 relating to the Staff Regulations of officials of the Communities; Rule that the Commission is bound to apply this procedure to the applicant within a period of time to be fixed by the Court; Take note that the applicant retains the right to claim such damages as are owing to her by law if the Commission fails to apply the integration procedure within the time fixed by the Court:

2) Declare null and void the decision to terminate the contract, notified to the applicant with provisional effect by a letter of 21 December 1962 and confirmed as definitive by letter of 1 March 1963: Consequently declare that the applicant 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); Rule that the European Economic Community or alternatively the Commission owes the applicant arrears of her monthly salary from 1 February 1963 and that she has the right to other benefits arising under this contract, particularly with regard to social security benefits, sickness insurance, etc.: Rule that the European Economic Community or alternatively the Commission owes the applicant the sum of 100000 FB as arrears, subject to increase or decrease during the course of the proceedings; Take note that the applicant is ready at any time to resume her duties with the Commission.

3) Alternatively, in the event of the Court's considering the applicant's contract to be no longer in force: Rule that the dismissal notified to the applicant is irregular; Rule that the European Economic Community or alternatively the • Commission is bound to make good the material damage suffered by the applicant by the payment of 3000000 FB compensation, subject to increase or decrease during the course of the proceedings, and the non-material damage by the payment of 1000000 FB compensation subject to the same conditions;

4) In any case, annul the veiled and illegal penalty in the letter of 21 December 1962 addressed to the applicant which prohibits her from carrying out her duties during January 1963; Rule that the European Economic Community owes the applicant under this head the sum of 1 FB in damages;

5) Rule that the European Economic Community or alternatively the Commission shall bear all the costs of the action;

6) Take note that the applicant:

a) Reserves the right, if the Court should consider the decision of dismissal as valid, to invoke the fact that the dismissal was made without any prior warning and that the applicant is owed compensation commensurate with the amount of prior notice required for the dismissal of members of the auxiliary staff, the applicant estimating compensation to be 1000000 FB up to the present time, subject to increase or decrease during the course of the proceedings;

b) Reserves the right to raise during the course of the action such fresh issues of fact and of law to which she may subsequently have recourse after having seen the opposing party's submissions in defence and the possible production of documents by it;

c) Offers to prove by all legal means available, including witnesses, the facts which she alleges and for which up to the present time there has been no written evidence, if these facts are contested by the opposing party.’

In her reply the applicant puts forward the same conclusions except for the following amendments:

under head (3), ‘the sum of 5000000 FB is substituted for that of 3000000 FB’;

the following conclusions are now put forward under head (6): ‘as a minor additional point’ to order the opposing party to produce certain documents.

The defendant contends that:

‘the application should De dismissed as inadmissible and unfounded; the applicant should be ordered to pay the costs of the case’.

III — Submissions of the parties

1. As to the first head of the conclusions

A — First submission: lack of competence

The applicant asserts that the decision of 1 March 1963 was not taken by the competent authority. At that time the Commission had decided that ‘as regards Categories C and B, the decision to grant the benefits of the Staff Regulations in accordance with Article 102 of those Regulations shall be taken by the President’.

Consequently, only the President could have taken a decision with regard to the request of the applicant.

The defendant replies that Mr Smulders simply supplied the information which had been requested of him.

Although the applicant has described her letter both as a request and a complaint within the meaning of Article 90 of the Staff Regulations, she has failed to observe that this provision prescribes that requests of this nature must be made to the appointing authority.

The applicant replies that she addressed the letter to the Head of the Directorate-General of Administration and thus to the appointing authority.

The defendant maintains that the applicant is overlooking ‘the essential preliminary question’: having ceased to be part of the Commission's staff after 31 January 1963 she no longer had the right to take advantage of remedies reserved exclusively for that staff; for the same reason the administration could no longer adopt with regard to the applicant provisions based on the Staff Regulations of officials.

B — Second submission: disregard of the applicant's right under the procedure prescribed by Article 102 of the Staff Regulations of officials

The applicant points out that according to Article 102 any servant who on the entry into force of the Regulations occupied a permanent position can take advantage of the integration procedure. Notice of vacancy No 87 shows that the applicant occupied a permanent position. The duties prescribed for the position announced as vacant were identical to those which the applicant carried out.

The defendant replies that the applicant was never anything other than a member of the auxiliary staff and that throughout her employment her salary was attributed to the category of auxiliary staff. This group of persons is characterized by the temporary nature of their positions. The applicant has never occupied a ‘permanent position’. By the words ‘permanent position’ must be understood a position ‘set up within the framework of an administrative programme and a detailed list of posts in keeping with the budget and which must be occupied by a servant who carries out such duties on the basis of a service report corresponding to that position’. As, from 1 February 1963, the applicant was no longer in the service of the Commission, she could only have obtained a permanent position through a recruitment competition as prescribed by Article 29 of the Staff Regulations.

I he position occupied by the applicant and that announced as vacant were not identical; it would in fact have been nonsensical to offer for competition a position which was already taken.

According to the defendant, ‘the applicant is precluded from presenting her complaint in which she criticizes the decision which she claims denied her integration. The applicant herself sees such a decision in the mere creation of two positions for nurses and in the publication of the corresponding notices of vacancy on 19 September 1962’. The applicant has not attacked the said publication within the period prescribed by Article 91 of the Staff Regulations but on the contrary unreservedly presented her application for one of these positions.

The applicant replies that the concepts ‘member of the auxiliary staff’ and ‘permanent position’ must not be interpreted solely from a budgetary point of view. What counts is the real nature of the position. By Article 102 of the Staff Regulations of officials the right of the official to see the integration procedure applied in this case must be judged by reference to the legal position in which such employee finds himself at the time of the entry into force of the Staff Regulations. Before such time the differences between the various groups of officials were more or less arbitrary; thus the auxiliary staff who had been employed for more than seven months had the right to a longer period of notice of dismissal than that for holders (who were apparently privileged) of ‘so-called Brussels contracts’. The definition of auxiliary staff in Article 3 of the Conditions of Employment of Other Servants, which does not form part of the permanent staff, does not apply to the period before the entry into force of these provisions and does not moreover apply in the case of the applicant.

The defendant is begging the question by interpreting the concept of ‘permanent post’ as having a purely procedural significance. The socio-medical services of a large administration necessarily include nurses, and it is for that reason that the applicant was engaged in 1959. She and her colleague were the only nurses employed by the Commission.

Only the permanent nature of her duties explains why Mr Merpillat, Director of the Internal Affairs Division, had promised her before her entry into service that when the time came she would become integrated.

As for the submission that she is precluded from making any claim, the applicant points out that at that time she had no reason to criticize the notice of vacancy since there existed circumstances which made her consider that the vacant position would be offered to her whatever the procedure adopted.

The defendant replies that Article 3 of the Conditions of Employment of Other Servants contains a definition of the term auxiliary staff which is inconsistent with the argument of the applicant. It is incorrect to say that auxiliary staff, by the very definition of that expression, can only carry out temporary duties.

The expression ‘permanent position’ is an abstract concept and must not be confused with the concept of ‘post’.

The applicant s arguments relating to the permanent need for nurses are irrelevant since they do not show why every nurse should necessarily occupy a permanent position.

Formerly the applicant never claimed to occupy a permanent position. She signed without protest her contracts as a member of the auxiliary staff and put her name forward as a candidate for the position announced as vacant which was identical, in her own words, to that which she was already occupying.

The defendant denies ever having given any assurances whatsoever to the applicant.

2. As to the second head of the conclusions

The applicant considers the letter of 20 December 1962 (above under I, paragraph 7) as a provisional decision of termination whilst considering the letter of 1 March 1963 (above under I, paragraph 9) as a definitive ‘decision’.

A — First submission: Absence or inadequacy of reasoning

The applicant claims that it must be admitted that the contract was for an indefinite period. As she was told at that time by Mr Dolemans who was responsible for the recruitment of auxiliary and temporary staff, the transformation of the original contract into several contracts for a fixed period was justified by purely procedural reasons which were related to forthcoming integration and admission to the benefits of the Staff Regulations. By means of this argument Mr Dolemans induced her to sign the draft contract on 13 April 1962. At the time of the extension of the contract to 31 October 1962, Mr Dolemans told her that her integration had been postponed but would without doubt take place before 31 October.

Such a contract could only have been terminated for reasons of the interest of the service excluding any element of an arbitrary nature. That the Commission did not act for such reasons is shown both by the fact that it did not ‘proceed to engage anyone for the vacant position’ and that it did not take into account, according to the report of her superior, Dr de Ketelaere, the applicant s considerable professional aptitude. Moreover the decision of dismissal does not mention such reasons with the result that it is impossible to check whether the justifiable interests of the applicant were respected.

The defendant maintains first that the contract of 13 April 1962 constitutes a contract for a fixed period for a member of the auxiliary staff, made in accordance with Article 99 in conjunction with Article 51 of the Conditions of Employment of Other Servants. Such contracts could be extended, which is moreover what happened in this case. From the tenor of the various letters extending the contract one can conclude without any question that there was no transformation of such contract into one for an indefinite period.

According to Article 52 of the Conditions of Employment of Other Servants, the complete duration of employment of auxiliary staff including extensions (and without taking account of other cases which do not apply here) must not exceed one year. In this case this provision was observed. Even if one were to deny this and maintain instead (which is in turn debatable) that the contract began to run from 1 January 1962 the applicant would draw no advantage from this since the specified limitation is provided solely in the interests of the Administration.

It follows from this that the applicant's argument is misconceived. Her application is directed against something which is negative. No notice was given and the contract automatically came to an end through lapse of time. Thus there was in fact no necessity to take a decision, even less to give reasons for it.

The applicant replies that the legal designation of her contract depends primarily on the actual nature of the contractural relationship. Such contract was in fact one for an indefinite period.

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.

From the legal nature of the contract it is clear that the defendant was under the obligation to terminate the contract expressly and to give reasons for such termination.

Article 52 of the Conditions of Employment of Other Servants cannot be relied on as against the applicant since her ‘contract covered 13 months’ which, moreover, the defendant considered as capable of being extended.

In its rejoinder the defendant largely reaffirms the observations contained in its statement of defence.

The letter of 21 December 1962 cannot be considered as a notice of termination; the letter of 1 March 1963 could not have contained nor did it contain any ‘decision’. Moreover, the defendant did not have the power to employ auxiliary staff for more than one year and its refusal, as a matter of course, so to do cannot thus be considered as a ‘decision’. For all these reasons the second head of the submissions is unfounded.

Even if one were to admit that a decision exists, it was taken tacitly and thus by definition there was no need to give reasons. Apart from that, such an obligation only exists when the relevant provisions expressly so prescribe.

B — Second submission: Misuse of powers

The applicant asserts that the measure impugned is vitiated by misuse of powers in so far as it constitutes ‘a hidden penalty relating to the incident between the applicant and Mr Albrecht’. Contrary to Article 76 of the Conditions of Employment of Other Servants (which deals moreover only with ‘serious’ misconduct) the Commission did not give reasons for the measure nor did it give the applicant the opportunity to justify her conduct.

The defendant replies that the ground of complaint raised by the applicant has nothing to do with the concept of ‘misuse of powers’ and thus it is unfounded. It is true that the applicant was blamed for certain facts; however, the only thing which counts is her behaviour in relation to the traffic accident. The applicant had the opportunity to give explanations at a number of examinations and she also set out in writing the factors justifying her behaviour. In any case, there was no need for a reasoned decision since no disciplinary measures were adopted with regard to the applicant.

The Commission was free to form an opinion, on the basis of the professional aptitude and conduct of the applicant, whether it was appropriate to renew her contract.

The applicant replies that her conduct at the time of the traffic accident does not constitute professional misconduct. In any event, the consequences which the Commission drew from such conduct are in no way related to the trifling nature of the accident.

The defendant's admission that this accident led directly to the measure in dispute confirms that there is here a hidden disciplinary measure.

In its rejoinder the defendant repeats the main points of its arguments which have already been set out in its statement of defence.

C — Third submission: Misuse of rights

On this matter the applicant asserts that it was on the basis of the assurance that she would be integrated and entitled to the advantages of the Staff Regulations that she abandoned her position in Luxembourg. Because of her age she is no longer able at present to find in Luxembourg a job similar to the one which she previously held. Her husband has a post at the University of Brussels and pursues a career in science which is poorly paid. The couple have three children to support. The applicant's immediate superior, Dr de Ketelaere, has spoken very flatteringly about her and has written to ask the President of the Commission to continue to employ her.

The termination of the contract is ‘all the more inopportune’ as the applicant finds herself unable to take part in an internal competition organized for the purpose of recruitment for the position declared vacant, and this despite the fact that she is the only satisfactory candidate.

The defendant replies that it acted in the exercise of its powers and thus there can be no question of any misuse of rights. It never gave the applicant any assurances as to integration and in fact even if it had wished to it would not have been entitled to do so.

D — Continuation of the contract (second head of the conclusions, paragraph 2)

The applicant asserts that compensation must take the form which corresponds most closely to the nature of the damage. As she is willing to take up her former duties without delay she asks the Court to declare that the contract subsists. On this matter the defendant makes no specific observations.

3. Third head of the conclusions

The applicant sets out in detail the circumstances which must be taken into account in calculating damages.

The defendant draws attention to the fact that the present submission depends on the supposition (put forward in the alternative) that there is no right to integration. Consequently one cannot understand how the applicant can ask for compensation equivalent to the amount of the overall salary which she would obtain if she worked without interruption until the age of 65 in the service of the defendant.

4. Fourth head of the conclusions

The applicant declares that the damage caused to her by the infringement of the disciplinary provisions and of her right to defend herself is adequately compensated by the symbolic amount of 1 franc ‘unless the Court considers that the annulment which it pronounces constitutes of itself adequate compensation’.

The defendant replies that the temporary suspension of the applicant is not a disciplinary but an administrative measure.

The applicant replies that the characteristic of disciplinary measures is to ‘harm the person against whom such measures are directed or his goods or honour’; in this case the applicant's honour was affected.

An administrative measure is only conceivable and logical as the preliminary step in a disciplinary procedure when it is a question of removing from his position a servant whose presence has become undesirable.

The defendant replies that the right of the Administration to adopt measures of this type stems directly from disciplinary power and must consequently be recognized, even in the absence of an express provision. The suspension at issue had the exclusive aim of creating the most favourable conditions possible for the pursuit of the enquiry which had been set up because of the conduct of the applicant at the time of the traffic accident. The enquiry had no punitive aim and this stems from the fact that the Commission retained the applicant at her overall salary together with all the benefits attaching to her position.

5. Sixth (sic) head of the conclusions according to the application

In her reply the applicant withdraws this head of the conclusions and substitutes for it a new one (see below, point 6). She justifies such withdrawal as follows:

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

The applicant sets out the reasons why she considers it necessary that the documents in question should be produced. The defendant produces some of the documents requested and gives detailed reasons for its refusal to produce the rest.

IV — Procedure

The procedure followed the normal course.

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: The witnesses were heard on 10 December 1963.

A —) Mr Merpillat, a former Director at the Commission, was asked the following question:

‘n 1959, when the applicant took up her duties, did you let it be known to her that, when the time came, she could become integrated or did you make any similar statement?’

B —) Mr Dolemans, an official of the defendant, was asked the following questions:

a) 'Did you try to persuade the applicant at that time to sign the contract of 13 April 1962 declaring to her that the transformation of the old contract into one for a fixed period was necessary for purely procedural reasons and was related to the integration which the applicant expected, or did you make any similar statement? If your two answers are in the affirmative: on what did you base your opinion that integration of the applicant was possible and was the intention of the Administration?

b) ‘With regard to the extension of the applicant's contract to 31 October 1962, did you state to the applicant that her integration had been postponed but would occur before 31 October, or did you make any similar statement? If your answer is in the affirmative on what were you basing your statements?’

C —) Messrs Albrecht, Bernusset, Francescon, Mozzanica and Nardi, and Miss Weissgerber, all officials of the defendant were asked the following questions:

a) ‘When, by whom, in what circumstances and in what terms was the applicant informed of the accident and told to offer her assistance?

b) What did the applicant do then?’

D —) Dr de Ketelaere, a medical consultant of the defendant, was asked the questions under C above as well as the following questions:

a) ‘Did there exist any written or oral instructions or generally accepted professional practices which should have governed the applicant's conduct in such a situation taking account in particular of the possibility:

that at the time of receiving the message the applicant was on duty and attending to an official of the Community;

that she had not been informed of the nature and place of the victim's accident and of the nature of his injuries?

b) If your answer is in the affirmative, what are these instructions and practices?’

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. As far as possible the parties complied with this order.

4) The hearing took place in open court on 11 December 1963.

5) On 28 January 1964 the Advocate-General delivered his opinion.

Grounds of judgment

I — Admissibility

The applicant has directed her application ‘against the EEC or, alternatively against the Commission, both of whom she designates as opposing parties’

Article 91 of the Staff Regulations of officials of the EEC refers to disputes between ‘one of the Communities’ and one of its officials. Article 179 of the EEC Treaty provides that ‘The Court of Justice shall have jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations or the Conditions of Employment’.

The institution, as the supreme appointing authority, has the right to be a party to legal proceedings in actions brought by its staff.

Article 90 of the Staff Regulations governing the non-contentious procedure for dealing with requests or complaints by officials specifies that such a procedure, which logically precedes an appeal to the Court, must be initiated with the appointing authority of their institution. In the absence of provisions to the contrary, an appeal to the Court under Article 91 must be governed by similar rules. The Commission is authorized to appear on behalf of the Community.

The application must thus be considered as admissible and directed against the Commission.

II — As to the alleged grounds of complaint

It is appropriate to examine the second head of the application before the first. In fact, on the assumption that the ‘termination’ of which the applicant complains was legal, it would follow that she could no longer claim to be subject to the establishment procedure provided for by Article 102 of the Staff Regulations of officials of the EEC since she would no longer be in the service of the Community.

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. This objection must be dismissed. In this case it follows from all the events occurring before 31 January 1963 that the fact that the applicant's contract was not extended beyond that date, far from appearing a simple failure to act, occurring as it were accidentally, constitutes a definitive demonstration of intention with regard to a matter on which the defendant was bound to adopt a definite position. There was consequently a decision.

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. At the time when the applicant was told of the accident she was on duty and her instructions were that she should leave her post only in circumstances of extreme urgency. It is therefore at least comprehensible that the applicant should have sought to obtain more precise information on the accident, with which the first message had omitted to supply her. The message from Mr Albrecht reached the applicant by way of two messengers whose mother tongue was neither that of the witness nor of the applicant. It thus appears from what was said by the witnesses that the applicant consequently received rather fragmentary information which was given through a closed door when the injection which she was administering to another official required all her attention. Consequently the problem whether the applicant acted too slowly only arises from the time when Mr Albrecht spoke to her directly; seen from this angle there was no prejudicial delay. In respect of the applicant's hesitation in the presence of the crowd which had gathered around the injured person, this attitude, when one takes account of the circumstances in which this hesitation occurred as well as its brief duration, is not capable of an unequivocal interpretation and cannot be considered as constituting misconduct. In addition, the applicant's superior, the witness Dr de Ketelaere, stated that ‘the professional abilities and human qualities’ of the applicant ‘are excellent’. It follows from all these considerations that, in whatever way the applicant's conduct is to be appraised, the defendant's reaction was clearly exaggerated. As the disputed decision was based on grounds which in law are invalid it must be annulled without any necessity for an examination of the other grounds of complaint raised in respect of it.

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. As the decision impugned, having been annulled, must be considered as being null and void, the applicant is deemed to be still in the defendant's service. In this case there is no practical reason leading to the conclusion that compensation for the illegal nature of the decision impugned should take any form other than that of restitutio in integrum. The applicant's conclusions must therefore be accepted so that she is deemed to be still in the defendant's service under the material conditions which governed her contract of 31 January 1963, including the benefits arising from this contract in respect of social security and medical aid.

d) Finally, the applicant claims that the Court should declare that the defendant ‘owes the applicant her monthly salary from 1 February 1963’. For the reasons set out above this application is in principle well founded. Nevertheless, in order to avoid granting an unjustified gain, account must be taken of the fact that, because she did not carry out her duties from the above-mentioned date, the applicant was able to avoid certain expenses which she would have had to incur had she actually remained at work. In particular it seems clear that a household which includes three very young children must engage domestic help when both parents are gainfully occupied. The Court assesses the savings which the applicant was thus able to make at 15 %.

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. The defendant asserts as to this that the real decision sanctioning the refusal to apply the integration procedure to the applicant is contained in the creation of two posts for nurses and the publication of the relevant notices of vacancy and that the applicant, far from contesting these decisions within the time limits laid down by law, even offered herself as candidate for one of the posts in question. This objection must be dismissed. It is based on the assumption that the applicant recognized by implication that she could not claim to be integrated in the post she was holding. At that time the applicant could hope to become integrated in the way which the defendant itself seemed to offer. In these circumstances she had no reasonable grounds for initiating a discussion on any rights conferred on her by Article 102 of the Staff Regulations. Consequently it would be contrary to good faith to interpret the applicant's inaction as acquiescence in the defendant's interpretation of the said provision.

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’. These considerations are not altered by the fact that before the entry into force of the said Regulations and Conditions the position of certain of the Community's auxiliary staff presented in fact no real difference from that of servants employed on the basis of a so-called ‘Brussels’ contract. If one were in fact to recognize that these members of the auxiliary staff hold the rights laid down by Article 102 of the Staff Regulations, each institution would have been able to, or perhaps would even have had to, increase to a considerable extent the number of permanent posts authorized by the budgetary authority, thus stultifying both the powers and the intentions of the budgetary authority. It is common ground in this case that the applicant was engaged as a member of the auxiliary staff and her salary had been entered in the budget in the chapter ‘Auxiliary Staff.’ Thus, at the date of entry into force of the Regulations she did not occupy a ‘permanent post’. The applicant's conclusions must consequently be dismissed as unfounded. Nevertheless taking account of the considerations set out under 1 above, the Court must rule that the defendant is bound to allow the applicant to take part in the competition organized in accordance with Article 29 (1) (b) of the Staff Regulations for the post specified in Notice of Vacancy No 87. 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. As to the third head of the application

These conclusions have been drawn up only ‘in the event of the Court considering the applicant's contract to be no longer in force’. In this case the said conclusions have now lost their purpose.

4. As to the fourth head of the application

This judgment fully accepts the applicant's case with regard to the essential matters of her request, namely her reinstatement in the service of the defendant. These conclusions must consequently be dismissed for lack of legal interest.

5. As to the sixth head of the application

As the Court has already at its disposal the factors necessary to judge this dispute, the production of the documents which are the subject of this part of the conclusions has no further legal interest.

III — Costs

Under the terms of Article 70 of the Rules of Procedure the costs incurred by an institution in appeals referred to in Article 95 (1) of the said Rules shall be borne by it.

Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading.

In this case the applicant has presented conclusions in accordance with the above provisions and has succeeded in the essential points of her application. The defendant must therefore be ordered to pay the costs of the action.

Under the terms of Article 76 (5) of the Rules of Procedure in its decision as to costs the Court shall order sums equal to the amounts paid out as legal aid to be paid over to the Cashier of the Court and to be borne by the party who is ordered to pay the said 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.