3.

The positions of the parties are therefore as follows: the applicant argues that the “grade on establishment” to be taken into account for the purposes of Article 11 (2) of Annex VIII is Grade A 6 in which he was placed as from 27 October 1958, the date on which he began to work for the Commission. The Commission on the other hand maintains that the correct point of reference is Grade A 3, the applicant's grade on 1 January 1962 when he became established. If the applicant's argument were accepted, the period to be credited for the purposes of the Community pension would, as a result of the transfer of the rights acquired by him when he was in the employment of the national undertaking, be 17 months instead of 10 months and 20 days, the period calculated on the basis of the defendant's argument. To explain the difference, it must be borne in mind that under the third paragraph of Article 3 of the General Provisions adopted to give effect to the aforesaid Article 11 (2) of Annex VIII, the number of years of pensionable service to be taken into consideration is calculated by converting the sum transferred into notional years of service, which are then converted into years of pensionable service under the Staff Regulations on the basis of the annual basic salary corresponding to the grade on establishment. The applicant founds his case on the contention that his position before the entry into force of the Staff Regulations was equivalent to that of an established official. However that argument strikes me as untenable. Article 246 (3) of the EEC Treaty and Article 212 to which it refers (subsequently replaced by Article 24 (1) of the Merger Treaty) provides that the Council must lay down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the Communities, but Article 246 (3) provides that until then “each institution shall recruit the staff it needs and to this end conclude contracts of limited duration”. That distinction between the contractual system applied before the Staff Regulations entered into force and the system subsequently established by the Staff Regulations is therefore quite clear. It implies that before the entry into force of the Staff Regulations, the Communities could not have any established officials. Permanent establishment of the employees of a public administration is in fact conceivable only on the basis of a legislative measure adopted under public law and regulating the positions and careers of the staff. The applicant contends that he was engaged under a contract for an indefinite period. That cannot however raise a presumption that he was engaged on a permanent basis in view of the fact that such a situation would have been incompatible with Article 246 (3) of the EEC Treaty. This Court has already made that clear in its judgments of 15 July 1960 in Cases 43, 45 and 48/59, Lachmüller and Others [1960] ECR 463 and of 14 December 1961 in Case 12/61 Gorter [1961] ECR 271. After stating that the abovementioned provision precluded the creation, prior to the establishment of the Staff Regulations, either expressly or by implication, of permanent employment realtionships, the Court also held that servants of the Communities had in the period before the entry into force of the Staff Regulations no legitimate expectation that the Staff Regulations would be applied to them. If the Community institutions have none the less concluded contracts of employment for an unlimited duration, they have done so, according to the Lachmüller judgment, because at the time the needs of the various departments which were then being set up were unforeseeable and therefore it was difficult to determine in advance the duration of contracts of employment. The Court went on to say that on no account could such contracts raise a legal presumption that there was a common intention between the parties to create a permanent employment relationship, in view of the fact that such an intention would have been manifestly contrary to the rule laid down by Article 246 (3). It should however be observed that the members of staff engaged prior to the entry into force of the Staff Regulations under contracts for an unspecified period did not enjoy any guarantee of security. The institution could at any time terminate the employment relationship simply by giving one month's notice in accordance with the provisions generally included in contracts of employment. In the present case, by letter of 3 December 1958, the Commission expressly drew the applicant's attention to the fact that “at the present stage of the organization of the Community, this engagement can be only provisional in nature”. That should have been sufficient to dispel any ambiguity which may have resulted from the so-called “avis d'entrée en fonctions” (notice relating to the taking up of duties) of 19 November 1958 in which the applicant was described as “an official” (see Annex VII to the originating application). The use of that term may easily be explained if it is borne in mind that it was the practice of the Community's departments at the time to refer to the terminology of the ECSC Staff Regulations in which the concept of “temporary officials” was used (in Article 2 (3)). Nor could the applicant derive any assistance ex post from the de facto security which he ultimately enjoyed for the entire duration of his service prior to the entry into force of the Staff Regulations. That cannot be treated as equivalent, either in law or in fact, to the position of an established official. It is clear that under Article 102 of the Staff Regulations, servants engaged under contract became established by means of a procedure providing for the individual assessment of each servant which thus altogether precluded automatic establishment.