JUDGMENT OF 23. 2. 1983 — JOINED CASES 225 AND 241/81 TOLEDANO LAREDO AND GARILLI v COMMISSION

In Joined Cases 225 and 241/81

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: S. Rozès Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

1. Armando Toledano Laredo, the applicant in Case 225/81, was engaged by the Commission of the European Communities as a member of the auxiliary staff under a six-month contract dated 28 July 1964, which took effect on 6 October 1964 and was extended twice, once until 5 October 1965 and then indefinitely. That contract terminated on 30 September 1966, the applicant being appointed as a probationary official with effect from 1 October 1966. Mario Garilli, the applicant in Case 241/81, was engaged by the Commission as a member of the auxiliary staff under a six-month contract dated 13 August 1964, which took effect on 1 September 1964 and was extended twice, once until 31 August 1965 and then indefinitely. That contract terminated on 31 March 1967, the applicant being appointed as a probationary official with effect from 1 April 1967. The applicants asked the Commission, by means of requests under Article 90 (1) of the Staff Regulations, to recognize their periods of service as members of the auxiliary staff for the purposes of the Community pension scheme, that is to say to regard those periods as periods of service performed by temporary staff. Mario Garilli's request was rejected by the Commission by a decision notified to him on 17 November 1980 and that of Armando Toledano Laredo was rejected by a decision notified to him on 1 December 1980. The applicants therefore lodged complaints under Article 90 (2) of the Staff Regulations: Mr Garilli on 9 February 1981 and Mr Toledano Laredo on 11 February 1981. Because the Commission did not reply to his complaint within the period laid down for that purpose Mr Toledano Laredo brought an action on 29 Tuly 1981. On 11 August 1981 the Commission expressly rejected the applicant's complaints. On 7 September 1981 Mr Garilli brought an action.

2. By order of 4 February 1982 the Court (First Chamber), having determined that Case 225/81 (Toledano Laredo), 241/81 (Garilli) and 308/81 (Klein) related to the same matter and were connected, decided to join the three cases for the purposes of the oral procedure and judgment. The Commission subsequently accepted that the action brought by Mrs Klein was well founded, except in respect of one matter of detail, and the Court therefore decided, by order of 12 May 1982, to separate Case 308/81 from Cases 225/81 and 241/81 which remained joined. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry. Nevertheless it requested the Commission to reply before 1 September 1982 to several questions relating to the criteria to be applied in order to ascertain whether the duties performed by a member of the auxiliary staff correspond to those by which a contract of employment of a member of the temporary staff is distinguished. By letter dated 12 August 1982 the Commission stated as follows: Its present practice is to take the view that duties may only be described as “permanent Community public service duties” only where the former members of the auxiliary staff have performed after their recruitment or appointment as members of the temporary staff “identical duties” to those performed by them during their employment as members of the auxiliary staff. It regards as “identical duties” those duties which are of equivalent levels of responsibility, correspond to the same description and, in the case of intellectual activities of an advanced level, relate to the same types of problems. Its practice is to consider that the conditions which must be satisfied if an official is to benefit from the presumption referred to in its memorandum of 12 August 1980 is the same as the condition relating to the performance of “identical duties”.

II — Conclusions of the parties

Taking into account the fact that the Commission recognized during the written procedure in Case 225/81 that he had been member of the temporary staff from 5 October 1965 to 30 September 1966, Mr Toledano Laredo amended his original conclusions accordingly and claims, in his reply, that the Court should:

A — Primarily,

1. Declare the application admissible and well-founded;

2. Consequently,

2.1. Declare that the contract concluded by the Commission with the applicant on 28 July 1964, which took effect on 6 October 1964 and expired, following extensions, on 30 September 1966, is to be regarded, with respect also to the period from 6 October 1964 to 5 October 1965, as having been concluded with a member of the temporary staff and that the Commission must acknowledge any legal consequences arising therefrom concerning the calculation of the applicant's years of service and years of pensionable service within the meaning of the first paragraph of Article 77 of the Staff Regulations;

2.2. Annul the decision of 11 August 1981, adopted in response to the applicant's complaint of 11 February 1981, in so far as it refuses to recognize for the purposes of the Community pension scheme, the period of service from 6 October 1964 to 5 October 1965 performed by the applicant in the purported capacity as a member of the auxiliary staff;

2.3. Order the defendant to pay the costs;

B — Merely in the alternative,

1. Declare the application admissible;

2. Before making a decision on the substance of the case, Order such preparatory inquiries as may be appropriate in order to determine, and establish the reasons for, the solution adopted regarding recognition for the purposes of the Community pension scheme of periods of service performed by officials, before their appointment as such, in the capacity of so-called members of the auxiliary staff;

3. Reserve the costs. Mr Garilli claims that the Court should : 1. Declare the application admissible and well founded; 2. Consequently, 2.1 Declare that the contract concluded by the Commission with the applicant on 13 August 1964, which took effect on 1 September 1964 and expired, following extensions, on 31 March 1967, is to be regarded as having been concluded with a temporary employee, and that the Commission must acknowledge any legal consequences arising therefrom concerning the calculation of the applicant's years of service for the purposes of a retirement pension and the calculation of his years of service under the first paragraph of Article 77 of the Staff Regulations; 2.2 Annul the decision notified by memorandum of 17 November 1980 refusing to recognize for the purposes of the Community pension scheme the period of service performed by the applicant in the capacity of a member of the auxiliary staff; 2.3 Annul the decision rejecting the complaint lodged on 9 February 1981 by the applicant against the abovementioned decision; 2.4 Order the defendant to pay the costs. The Commission claims that the Court should : Dismiss the applications as unfounded; Order the costs to be paid in accordance with the legal provisions.

Ill — Submissions and arguments of the parties

The arguments put forward by Mr Toledano Laredo and Mr Garilli in their respective applications are substantially the same.

The applicants state that according to the Court's judgment of 1 February 1979 in Case 17/78 Fausta Deshormes v Commission of the European Communities [1979] ECR 189 the sole criterion for distinguishing between a contract for temporary staff and a contract for auxiliary staff is the nature of the duties performed and if such duties are “permanent, definite, Community public service duties” the contract must be legally classified as a contract for temporary staff.

Both Mr Toledano Laredo and Mr Garilli claim that the duties which they performed were permanent Community public service duties.

According to Mr Toledano Laredo that fact is proved in his case by the very nature of the duties (those of Principal Administrator in the Administrative and Legal Department of the Finance Division of the European Development Fund), was confirmed by the competent authorities (he alleges that he was given a certificate to that effect by Mr Auclert, Director of Finance and of Administration, Directorate-General for Development) and is supported, if need be, by the following circumstances :

a) The fact that after the applicant left Division FED/3 (DGVIII), the duties which he had performed as a member of the auxiliary staff were taken over by officials;

b) The fact that his contract of employment as a member of the auxiliary staff was extended indefinitely at an early stage;

c) The continuity of the duties performed throughout his period of employment as a so-called member of the auxiliary staff.

Similarly Mr Garilli claims that the duties he performed as a member of the auxiliary staff were Community public service duties, as is proved by the fact that after his appointment as an official he continued to perform the same type of duties; his view is supported, furthermore, by circumstances similar in essence to those mentioned by Mr Toledano Laredo.

According to the applicants the fact that they performed duties both during their period of service as members of the auxiliary staff and after they were established which were in their opinion of the same type is sufficient for them to succeed in their actions, on the basis of the judgment in Deshormes.

Contrary to what is stated in the decisions which they challenge it is not necessary for them to have performed the same duties both before and after establishment. The Commission has failed to perceive the distinction between a condition to be satisfied and the proof provided by satisfaction of that condition. It follows from the judgment in Deshormes that the fact that the duties are identical is simply one form of proof that the duties performed are Community public service duties and does not exclude other means of proof. It is necessary and logical to regard the fact that the duties of a former so-called member of the auxiliary staff — now an established official — have been taken over by an official as further proof that those duties are of a Community public service nature.

Apart from that fact that it has no basis in law and stems from an erroneous view of the judgment in Deshormes, the view that recognition for the purposes of the Community pension scheme of a period of service completed as a member of the auxiliary staff depends on whether the same duties are performed both before and after establishment entails consequences which are unjustifiable, unjust and manifestly contrary to the principle of equality. The criterion for recognition adopted in this case is based solely on the duties assigned to the official at the time of his establishment, a matter over which he has no control whatsoever and which is unconnected with the nature of the duties he performed during his period of employment as a member of the auxiliary staff.

The applicants also challenge a second requirement referred to in the disputed decisions which, according to the Commission derives from the judgment in Deshormes, that is to say the requirement that the employment as a member of the auxiliary staff must correspond to a permanent post appearing in the list of posts appended to the budget.

Although the disputed decisions did not purport to be based on that second requirement, the applicants also make a number of observations in that regard, in so far as they may be relevant.

In their opinion there is no second requirement, since the sole criterion for distinguishing between a contract for temporary staff and a contract for auxiliary staff is the nature of the duties performed.

Once again there is confusion between the condition and the method of proof, since the fact that a person has performed duties associated with a permanent post appearing in the list of posts of a particular institution is, in fact, only one means of proving that he actually performed permanent duties which are to be regarded as Community public service duties.

It must be added that the Commission itself took no account of this alleged second requirement as regards the part of the period of service as a member of the auxiliary staff after the first 12 months and immediately preceding recruitment as an official or as a member of the temporaiy staff, even though the duration of a contract has no effect on the legal classification of it. Furthermore the Commission recognized that it would be neither fair nor realistic to require the persons concerned to show that the second requirement has been complied with.

The aforementioned considerations lead the applicants to conclude that the second requirement is nonexistent.

The applicants also state that in any case posts provided for in the budget which corresponded to the duties they performed were available both in the institution as a whole and in the directoratesgeneral in which the applicants were employed.

The Commission states in its defence that the applicants in fact performed during the periods which are still in dispute duties which it was lawful to assign to a member of the auxiliary staff.

According to the Commission the definitions of contracts for auxiliary staff and contracts for temporaiy staff given in Deshormes entail the result that a contract may legally be classified as one for auxiliary staff where the employee, except in the case of the temporary replacement of an official, performs administrative duties which are of a transitory nature, meet an urgent need or are not clearly defined, without being assigned to a post included in the list of posts.

As regards Mr Toledano Laredo's period of service from 6 October 1964 to 5 October 1965, the Commission considers that during that time he performed duties which could legally be regarded as those of a member of the auxiliary staff.

It is clear from a number of documents that Mr Toledano Laredo was recruited in 1964 “for the performance of administrative duties in order to meet an urgent need” and in particular to perform supplementary and urgent duties made necessary by the entry into force of the Yaoundé Convention, and that at that time Directorate-General VIII did not have any post available for the recruitment of an official or a temporaiy employee to perform such tasks. The fact that the duties performed after the period in dispute remained the same is irrelevant. In fact it was only after 5 October 1965, the date on which the applicant's contract was renewed for an indefinite period, that it became clear that Mr Toledano Laredo was continuing to perform duties, without limitation as to time, which had originally been of a transitory nature but proved in the event to be permanent.

The same considerations apply in respect of Mr Garilli's period of service from 1 September 1964 to 31 March 1967.

The documents produced by the Commission in support of its statements show that Mr Garilli's initial recruitment as a member of the auxiliary staff and the two extensions of his contract were the result of an express request from Directorate-General I “for the performance of administrative duties in order to meet an urgent need.” The same documents also indicate that in the department dealing with Raw Materials (Minerals and Metals), Chemical Industry, Construction of Machines and Electronics Industry, Transport of Materials, Precision Engineering and Optics in Division I-D3 to which he was assigned, there was at that time no permanent post in the list of posts to which he could have been appointed as an official.

Furthermore Mr Garilli did not qualify for the benefit of the presumption, introduced by the Commission in a memorandum of 12 August 1980 from the Director-General of Personnel and Administration, relating to the period of service as a member of the auxiliary staff after the first 12 months and immediately prior to appointment as an official or as a member of the temporary staff, whereby a member of the auxiliary staff who has, during that period, performed duties identical to those performed by him after being appointed as an official or a member of the temporary staff, is presumed to have performed permanent Community public service duties corresponding to a post in the list of posts appended to the budget.

In fact the presumption only applies where the duties are identical. It is clear that Mr Garilli did not perform the same duties both before and after he was established because he was employed in Division I-D3 when he was a member of the auxiliary staff and subsequently, when he was an official, in Directorate-General II.

The applicants' replies differ because of the different attitude adopted by the Commission to their individual cases.

Mr Toledano Laredo, whose period of service of 12 months from 6 October 1965 to 30 September 1966 was recognized by the Commission by decision of 11 August 1981 as being a period of employment as a member of the temporary staff, endeavours first to show that logically that decision should have related to his whole period as a member of the auxiliary staff. He also maintains that the duties he performed between 6 October 1964 and 5 October 1965 were permanent Community public service duties and adds, finally, that the second requirement relating to the existence of a post included in the list of posts appended to the budget either does not exist, or ought not to be imposed by the authorities or else is satisfied in his case.

Mr Toledano Laredo states that, as is immediately apparent from the wording of the decision of 11 August, if the said second period of auxiliary service is regarded as having been a period of employment as a member of the temporary staff that is because during that period the applicant performed duties which were identical to or, more precisely, were “of the same type” as those he performed after he was established. But the fact that a person performs duties after he has been appointed as an official which are of the same type as the duties he had previously performed as a member of the auxiliary staff necessarily implies that the duties performed in that capacity are permanent Community public service duties and it is not permissible to place any time-limit upon the recognition of that fact.

The Commission is in error in including a limitation in its decision of 11 August 1981. In view of the fact that the duration of a contract of employment of a member of the auxiliary staff may not legally exceed one year the Commission took the view that only periods of employment of members of the auxiliary staff exceeding 12 months might be deemed to be periods of employment of temporary staff. That conclusion is erroneous. In fact it is clear that the legal classification of a contract is to be ascertained not by reference to its duration — whether or not it is in conformity with the legal limit — but by reference to the duties performed and the facts of the case.

Furthermore the entirely artificial nature of the Commission's argument is shown by the fact that it treats his contract as one for the employment of temporary staff as from 6 October 1965, although his contract as a member of the auxiliary staff was extended indefinitely as from 3 August 1965 and although, as the Commission itself states, the extension of the contract for an indefinite period shows that from the date of the extension it ceased to fulfil its purpose, namely the employment of a member of the auxiliary staff.

If it is accepted that the nature of the duties performed by him from 6 October 1964 to 5 October 1965 was not at that stage determined by virtue of the nature of the duties performed from 6 October 1965 to 30 September 1966, which remained exactly the same, Mr Toledano Laredo reiterates his view, on the basis of the arguments expounded in his application, that those duties were without doubt permanent Community public service duties.

He points out that the fact that the duties were, as the Commission emphasized, to be performed as a matter of urgency does not in any way imply that they were not of a permanent nature. The duties assigned to the applicant were of a permanent nature from the outset and were known to be of such a nature since they arose as a result of the entry into force of the Yaoundé Convention.

Mr Toledano Laredo also rejects the Commission's reference to the legal provisions applicable to relations between the parties, who freely agreed in the contract that the first year of service would not be counted for retirement purposes. He states that according to the Court's case-law the legal classification of a contract should prevail over the designation given to it by the parties.

Finally, as regards the question of a post included in the list appended to the budget Mr Toledano Laredo, while denying both that a second requirement exists and that it is possible to require an official to prove that it has been satisfied, states that in any case posts corresponding to his duties and provided for in the budget were available, at least in the Commission as a whole. The requirement should therefore be regarded as having been complied with since it is not permissible to allow a former member of the auxiliary staff to be prejudiced in relation to his pension rights simply because directorates-general which have a surfeit of posts provided for in the budget have refused to transfer one of them to a directorate-general in which there is a shortage of such posts.

Lastly Mr Toledano Laredo states that the range of different solutions adopted by the Commission regarding the problem of former members of the auxiliary staff, in the absence of any apparent justification for this diversity based on objective and uniformly applicable criteria, is in breach of the principle of equality.

Mr Garilli states that even if it were necessary to admit, as seems to follow from the Court's judgment of 19 November 1981 in Case 106/80 Bernard Fournier v Commission of the European Communities [1981] ECR 2759, that there is also a requirement as to the existence of a post provided for in the budget, there are no grounds, in any case, for applying the second requirement, for two reasons, each of which is by itself sufficient justification.

In the first place the Commission itself has shown that it does not take account of the alleged requirement inasmuch as it decided that the part of the period of employment as a member of the auxiliary staff after the first 12 months and immediately preceding appointment as an official or as a temporary employee in a permanent post was to be deemed to have been completed by the person concerned as a member of the temporary staff.

Secondly the Comission itself has recognized that it is neither fair nor realistic to require an employee to prove that he is employed in a permanent post in the list of posts appended to the budget. Having made that admission, the Commission should at the very least act as if the second requirement did not exist. Any other solution would favour, without justification, any person for whom adequate documentation was still available, notwithstanding the lapse of time.

Mr Garilli therefore considers that it is contrary to the principles of equal and distributive justice to impose a requirement which does not apply in all cases.

He then examines in minute detail the presumption adopted by the Commission, upon which the latter considers he is not entitled to rely.

Although the Commission refers to a rebuttable presumption (praesumptio juris) it is in fact an irrebuttable presumption (praesumptio juris et de jure) in as much as there is no indication in its memorandum of 12 August 1980 that the presumption is applicable subject to contrary evidence. That is confirmed by its administrative practice according to which all former members of the auxiliary staff who satisfied the required conditions automatically benefited from the presumption.

The presumption should be extensively applied for two reasons: as a matter of logic, in so far as the situations of those involved are identical, and by virtue of the principles of equality and distributive justice.

Logically there is no difference, as regards appraisal of the duties performed by a former member of the auxiliary staff, between the circumstances described by the Commission:

Performance of the same duties both before and after establishment;

and the circumstances of the applicant:

After being appointed as an official, he was replaced by an official who performed the same duties as he had when he was a member of the auxiliary staff;

After his appointment he continued to perform duties of the same type as he had performed previously.

This twofold extension of the scope of the presumption is dictated not only by logic but also by the principles of equality and distributive justice. There are no grounds for the view that a former member of the auxiliary staff to whom different duties have been assigned upon establishment and whose previous duties have been taken over by an official is in a less favourable position than a person whose duties have remained unchanged. Even if that were the case — which is impossible — it would be necessaiy to inform the person concerned at the time of his appointment that his appointment as an official constituted a measure by which he might be adversely affected.

As regards the nature of the duties performed, the existence of a post provided for in the budget and breach of the principle of equality, Mr Garilli puts forward the same arguments in his reply as those expounded by Mr Toledano Laredo.

The Commission in its rejoinder contends that there are two criteria applicable to the decision whether a contract is legally classifiable as a contract for auxiliary staff or a contract for temporary staff. It supports this view by detailed references to the Court's judgment of 19 November 1981 in Case 106/80 Bernard Fournier v Commission of the European Communities, cited above, and to the Advocate General's opinion in that case.

In reply to the applicants' arguments that there were posts available, at least in the institution as a whole, the Commission states that it was clear that a post corresponding to the duties performed by the member of the auxiliary staff had to be vacant in the department in question. In its judgment in Desbonnes the Court was careful to point out that such a post was allocated to the division to which Mrs Deshormes was appointed even before her period of service as a member of the auxiliary staff began,

As regards the presumption relating to the period of service as a member of the auxiliary staff after the first 12 months, that is a liberal interpretation by the Commission of the judgment in Deshormes, which it was under no obligation to adopt. The presumption is not irrebuttable but, in the absence of clear rules on the matter, it should be considered to be applicable until the contrary is proved. A fortiori, and for the same reasons, its scope must be restricted.

The imposition of a time-limit on the effects of the presumption is not the result of an error.

As regards Mr Toledano Laredo, there are good reasons for believing that the duties which he performed during his first 12 months of service as a member of the auxiliary staff were of a kind which might be assigned to auxiliary staff for no more than one year.

In fact, at the relevant time, Directorate-General VIII had no post available and was therefore unable to engage, as a matter or urgency, officials or temporary employees to perform the administrative duties for which the applicant was engaged as a member of the auxiliary staff. The absence of such a vacant post is of itself decisive.

With regard to Mr Toledano Laredo's assertion that he was informed by a letter of 3 August 1965 — and not 5 October 1965 — that his contract was to be extended indefinitely, that does not in any way alter the fact that when that contract was first renewed — until 5 October 1965 — the Commission was fully entitled to regard the duties as being of a precarious nature throughout that additional period. In order to judge the good faith of the Commission's intentions it is necessary to go back to the first renewal of the contract.

Furthermore, it is apparent from the judgment in Deshormes and was confirmed in Fournier, that a contract for the employment of auxiliary staff may legitimately be used to ensure the performance of permanent Community public service duties, not only where an official is temporarily replaced but also in cases of urgency. That is precisely what was done in Mr Toledano Laredo's case.

Furthermore, it is normal to presume that at least for the first 12 months a contract for auxiliary staff has been used to effect a temporary replacement or for the performance of administrative duties of a transitory nature or duties which had to be performed as a matter of urgency or had not been clearly defined.

The presumption is certainly a straightforward one but to rebut it the applicant must prove that he satisfied the two requirements laid down in the judgment in Deshormes during the relevant period.

As regards the principle of equality the Commission considers that the variety of solutions adopted is clearly justified by the diversity of the individual situations (cases where members of the auxiliary staff satisfied the two requirements from the outset; where employees were entitled to the benefit of the presumption in question; where their period of service was interrupted; where there was a break in their period of service which could not properly be regarded as an interruption, such as absence on holiday or on a scholarship awarded by the Commission; and there are other cases).

With' regard to Mr Garilli, the Commission states that at no time during his auxiliary service did he satisfy the two requirements laid down in Deshormes. Furthermore, as he did not perform the same duties during the 12 months preceding his establishment as those he performed subsequently, he too was not entitled to the benefit of the presumption adopted by the Commission.

As regards the remainder of Mr Garilli's arguments, which are essentially the same as those put forward by Mr Toledano Laredo, the Commission rejects them on the basis of the same considerations as in Mr Toledano Laredo's case.

IV — Oral procedure

At the sitting on 30 September 1982 oral argument was presented for Mr Toledano Laredo and Mr Garilli by Edmond Lebrun of the Brussels Bar and for the Commission of the European Communities by its Legal Adviser, Joseph Griesmar, acting as Agent, assisted by Robert Andersen, of the Brussels Bar.

The Advocate General delivered her opinion at the sitting on 11 November 1982.

Decision

1. By applications lodged at the Court Registry on 29 July 1981 and 7 September 1981 respectively, Armando Toledano Laredo and Mario Garilli, officials of the Commission of the European Communities, brought actions for a declaration that periods of service with the Commission completed by them as members of the auxiliary staff before appointment as probationary officials must be regarded as periods of service completed by them as temporary employees and therefore for annulment of the Commission's decisions whereby it refused to recognize such periods for the purposes of the Community pension scheme.

2. Mr Toledano Laredo was engaged by the Commission as a member of the auxiliary staff in Categoiy A, Group I, Class 2, under a six-month contract dated 28 July 1964 which took effect on 6 October 1964 and was extended first until 5 October 1965 and subsequently for an indefinite period. He was appointed as a probationary official in Grade A 4 on 1 October 1966 after successfully taking part in Open Competition No EEC/829/A which took place on 23 June 1966.

3. Mr Garilli was engaged by the Commission as a member of the auxiliary staff (Categoiy B, Group IV, Class 1) under a six-month contract dated 13 August 1964 which took effect on 1 September 1964 and was extended first until 31 August 1965 and subsequently for an indefinite period. He was appointed as a probationary official in Grade A 7 on 1 April 1967 after successfully taking part in Open Competition No 5155 which took place on 21 September 1966.

4. During the written procedure the Commission acceded to Mr Toledano Laredo's claim solely for the period from 6 October 1965 to 30 September 1966 on the ground that during that period he had performed practically the same duties as he performed after he was established. By letter dated 11 August 1981 the Commission informed Mr Toledano Laredo that, in accordance with the procedure laid down by it on the basis of the Court's judgment of 1 February 1979 in Case 17/78 (Fausta Deshormesv Commission of the European Communities [1971] ECR 189), the fact that the duties which he performed both before and after he was established were identical enabled it to presume that for the part of his service as a member of the auxiliary staff after the first 12 months and immediately preceding his appointment as an official he was performing “permanent Community public service duties” and not duties which might lawfully be assigned to a member of the auxiliary staff. As regards Mr Garilli, who did not perform the same duties both before and after he was established, the Commission rejected his claim as wholly unfounded.

5. In support of their claims the applicants maintain that they satisfy the requirements laid down in the Conditions of Employment of Other Servants of the European Communities for recognition of the status of temporary employees, as defined by the Court in its judgment of ; 1 February 1979, cited.. above, and in its judgment of 19 November 1981 in Case 106/80 (Bernard Fournierv Commission of the European Communities [1981] ECR 2759).

6. In those judgments the Court stated that “The difference between auxiliary staff and temporary staff lies in the fact that a member of the temporary staff fills a permanent post included in the list of posts, whereas, except in the case of temporary replacement of an official, a member of the auxiliary staff performs administrative work without being assigned to a post included in the list of posts” and that an important characteristic of a contract for the employment of auxiliary staff “is its precariousness in time, since it can be used only to effect a temporary replacement or to allow the performance of administrative duties which are of a transitory nature, which fill an urgent need or which are not clearly defined.”

7. A person who claims that a period of employment classified as having been completed in the capacity of a member of the auxiliary staff should be recognized as having been completed in the capacity of a temporary employee must therefore first prove that posts corresponding to the duties performed by him appeared at that time in the list of posts for the institution and were available.

8. Mr Toledano Laredo claimed that such posts were included in the list of posts, at least for the Commission as a whole, when he was engaged as a member of the auxiliary staff and that they were available.

9. Mr Garilli also claimed that posts corresponding to the duties performed by him as a member of the auxiliary staff were available, at least in the Commission's list of posts as a whole. He stated that on 31 December 1964 that list contained 454 posts in Categoiy B, of which 137, or 34.5%, were available at that time.

10. The Commission has not challenged the correctness of the applicants' allegations. It has merely pointed out that there were no posts corresponding to the duties performed by the applicants available in the departments to which they had been assigned. It considers that the requirement of the existence of a post provided for in the budget is satisfied only if the post is available in the department concerned and not in the institution as a whole.

11. That view is not, however, supported by the wording of Article 2 (a) and (b) of the Conditions of Employment of Other Servants of the European Communities, which defines temporary staff as staff engaged to fill a post “included in the list of posts appended to the section of the budget relating to each institution.”

12. In order to obtain recognition that a period classified as having been completed by them as members of the auxiliary staff is to be regarded as a period completed as members of the temporary staff, the applicants must also prove that the duties which they performed as members of the auxiliary staff were not of a transitory nature, in other words that they were permanent Community public service duties.

13. In the absence of any provision in the Conditions of Employment of Other Servants of the European Communities determining means of proof it must be stressed that the applicants are entitled to demonstrate by any conclusive means that they performed permanent Community public service duties. In particular, whilst the fact that the duties performed by a person during the period when he was classified as a member of the auxiliary staff were identical to those performed after his appointment as a probationary official or as a temporary employee, which relate to a post contained in the list of posts, is without doubt sufficient proof, it may not be regarded as the only permissible means of proof.

14. Mr Toledano Laredo stated, inter alia, that: After his departure from Division EED/3 (Directorate-General VIII), to which he had been assigned as a member of the auxiliary staff, the same duties which he had performed were carried out by officials; His contract as a member of the auxiliary staff, which took effect on 6 October 1964, was extended indefinitely from 6 October 1965; He performed the same duties throughout the period during which he was classified as a member of the auxiliary staff.

15. Mr Garilli stated, inter alia, that: The department to which he was assigned as a member of the auxiliary staff (Directorate-General I/D/3) still exists and the duties performed there are, mutatis mutandis, the same as those which he performed there; His contract as a member of the auxiliary staff, which took effect on 1 September 1964, was extended indefinitely from 1 September 1965; He performed the same duties throughout the period during which he was classified as a member of the auxiliary staff.

16. The applicants' allegations, which have not been contested by the Commission, clearly show that the duties performed by Mr Toledano Laredo and Mr Garilli were not of a transitory nature and corresponded to duties performed by officials.

17. The urgent nature of those duties referred to by the Commission does not alter the fact that they are permanent duties; it may justify the engagement of an employee under a contract for auxiliary staff only if it is proved that suitable posts provided for in the budget were not immediately available and the Commission has not provided such proof in the present case.

18. It must therefore be concluded that the applicants have been able to prove that during their periods of service as members of the auxiliary staff they performed well-defined, permanent Community public service duties for which posts were available in the list of posts appended to the section of the budget relating to the institution employing them.

19. In view of the foregoing considerations the Commission's decision of 1 December 1980 must be annulled, in so far as it does not recognize for the purposes of the Community pension scheme Mr Toledano Laredo's period of service as a member of the auxiliary staff from 6 October 1964 to 5 October 1965 and the Commission's decision of 17 November 1980 refusing to recognize for the purposes of the Community pension scheme Mr Garilli's period of service as a member of the auxiliary staff from 1 September 1964 to 31 March 1967 must also be annulled.

Costs

20. Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. As the Commission has failed in its submissions it must be ordered to pay the costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Annuls the Commission's decision of 1 December 1980, in so far as it does not recognize for the purposes of the Community pension scheme Mr Toledano Laredo's period of service as a member of the auxiliary staff from 6 October 1964 to 5 October 1965, and the Commission's decision of 17 November 1980 refusing to recognize for the purposes of the Community pension scheme Mr Garilli's period of service as a member of the auxiliary staff from 1 September 1964 to 31 March 1967;

2 Orders the Commission to pay the costs.