3.

In his third and final submission the applicant relies on a number of general principles such as the duty of assistance and the principles of equity and social security, and alleges a wrongful omission on the part of the Commission and a misuse of its power of dismissal. The applicant takes the view — this point has already arisen in another context — that the termination of his employment on the ground of his alleged lack of management skills should be regarded as unlawful because the Commission, in breach of its duty of assistance, failed to enrol the applicant on a special management course. In any event, the period of notice given was too short because it was equal only to the minimum period provided for by Article 47 of the Conditions of Employment of Other Servants. Finally, he argues that his dismissal could not be ordered, or at least could not take effect, until rules had also been adopted for the Community ensuring cover on termination of employment against the risk of unemployment, sickness and invalidity. At the very least, the Commission is obliged in his particular case to take steps to cover him against such risks. (a) Bearing in mind what I have already stated elsewhere, it is clear that the applicant's views on the first point cannot be accepted. There is no need in that regard to examine in detail the scope of the duty of assistance on which the applicant relies. That duty applies by virtue of Article 24 of the Staff Regulations and, pursuant to Article 11 of the Conditions of Employment of Other Servants, must also be applied where a person's employment is governed by those conditions. Even if it were accepted that by virtue of that duty the employer is obliged to provide further training, it would be significant that in the applicant's case it was not merely a question of further training but of first providing him with the qualifications needed for the performance of certain duties for which a person of his rank had to accept responsibility. It cannot, however, be one of the employer's duties to ensure that the basic qualifications for the performance of the contract of employment are first obtained. Rather, the employer may assume that a person who applies for a particular post and after a preliminary examination is found to be suitable, essentially possesses the necessary capabilities and does not first need to acquire them by special training measures. Furthermore, the applicant was criticized not only for his lack of management skills but also for other inadequacies. Consequently, even his participation in management courses would probably not have guaranteed that he would have performed his duties in a satisfactory manner. There can therefore be no question of a misuse of the power of dismissal on the ground that there was a breach of the duty of assistance. (b) For the purpose of determining the period of notice, Article 47 of the Conditions of Employment of Other Servants provides that where the contract is for an indefinite period — as in this case — employment is to terminate at the end of the period of notice stipulated in the contract. In the case of servants referred to by Article 2 (d), this period may not be less than one month for each completed year of service, subject to a minimum of three months and a maximum of 10 months. Accordingly, the second paragraph of Clause 5 of the contract concluded with the applicant on 26 May 1977 reads as follows: “The period of notice required shall be one month for each year of service completed, provided that such notice shall not be less than three months or more than 10 months”. Thus it may be seen that the period of notice is of a precisely determined length. Whilst the above-mentioned clause of the contract — in pursuance of Article 47 of the Conditions of Employment of Other Servants — also refers to a minimum and maximum period, the intention is merely to define the limits of the period of notice where calculation of the length of service produces a period of notice of less than three months or more than 10 months; in no way is it, however, intended to confer discretion permitting the particular circumstances of the case to be taken into account. Since it is common ground in this case that the period of notice was correctly calculated on the basis of the above-mentioned clause of the contract and since the applicant was also unable to show, for instance by citing examples of national law, that a calculation on that basis may be challenged in principle — his reference to the judgment of 22 June 1967 in Case 12/66 Alfred Williams v Commission of the EAEC [1967] ECR 153, at p. 167, clearly does not assist the applicant in the present case — there are certainly no grounds to grant his alternative claim for a declaration that he should have been given a period of notice of 10 months. (c) However, greater problems are raised by the third point concerning social security (sickness and invalidity insurance and cover against unemployment) for the applicant — who is apparently still unemployed — after the termination of his employment with the Commission. The applicant takes the view that the compensation which he received pursuant to Article 73 of the Staff Regulations on account of the partial permanent invalidity caused by an assault in the USA and the severance grant paid to him pursuant to Article 39 (2) of the Conditions of Employment of Other Servants should in any event not be taken into account in this context. Those payments, to which the Commission referred in its defence, are clearly not intended to compensate for the absence of social security. On the other hand, the rule laid down by the third paragraph of Article 28 of the Conditions of Employment of Other Servants must be regarded as totally inadequate, for there provision is made merely for benefits under the sickness scheme to continue for not more than 60 days after the expiry of a contract. In any event, the applicant says that it is significant that in June 1979 the Commission submitted to the Council proposals for amendments to the Conditions of Employment of Other Servants with a view to improving social security (Official Journal 1979, C 191, p. 9). The following two articles were to be inserted into the Conditions: “Article 28a A former member of the temporary staff who after the expiry of his contract is eligible for unemployment benefit or who would be eligible if he were not suffering from incapacity for work shall be covered against sickness and maternity risks under the compulsory social security scheme of the country in which he establishes his residence as regards : — The allowances provided for by that scheme in the event of incapacity for work, — Payments other than those allowances, provided for by the scheme in the event of sickness or maternity. Where the former member of the temporary staff is entitled to the benefits referred to in the second indent of the foregoing paragraph, his dependants shall be entitled to the same benefits. The control, payment and reimbursement procedures shall be similar to those described in the second sentence of Article 28b. Article 28b A former member of the temporary staff shall be entitled to unemployment benefit under the compulsory unemployment insurance scheme in the Community country in which he establishes his residence. He shall be subject to the control and payment procedures laid down by the scheme; the institution shall reimburse the scheme for the sum paid in benefits.” In this regard it must first be observed that the applicant's arguments concerning the compensation paid under Article 73 of the Staff Regulations and the nature of the severance grant are valid. Moreover, the following observations must be made: (aa) If I am not mistaken, the applicant's main argument is to the effect that until adequate social security can be arranged for Community servants whose employment is to be terminated, a right of dismissal may not be exercised or, at least, the dismissal may temporarily not take effect. It seems to me, however, that that view is debatable for several reasons. In its generality the argument certainly goes too far. It would remove the possibility of terminating employment even where requirements of social security as envisaged by the applicant do not arise because the person concerned is able to find new employment immediately. It would in any event be intolerable that the valid exercise of a right provided for by law and contract should depend on when and whether the official concerned finds other employment with adequate social security. Furthermore, the applicant was not able to show that his argument was correct. For that purpose his references to the very general principles of equity, the duty of assistance and social security are indeed scarcely sufficient. It must also be significant that the argument was advanced in relation to conditions of employment which do not provide for such a connexion between the right of dismissal and social security. Any person entering employment on those terms did so with knowledge of that situation — regarded by the applicant as a deficiency — and, consequently, it scarcely seems justifiable to permit reliance upon that “deficiency” for the purpose of preventing the termination of a contractual relationship of that nature. (bb) Also out of the question, in my view, is the claim that the dismissal should be prevented from taking effect until the defendant has arranged cover in respect of the risks referred to by the applicant, or indeed that the defendant should be ordered to take measures similar to those envisaged in the proposal for a regulation. It must first be observed that it is not possible for the Commission to arrange such cover. For that purpose a legislative basis is required which so far has been wanting and which the Commission cannot provide itself because the adoption thereof falls within the competence of the Council. It is a separate issue whether the Commission may be criticized for a wrongful omission because it failed to make a proposal similar to the one which it has now submitted at an earlier date, for example when- Article 2 (d) of the Conditions of Employment of Other Servants was originally adopted. However, that could not have the result of deferring the coming into effect of a dismissal notified in 1979; at best, without affecting the validity of the dismissal, it might lead to the award of compensation. Moreover, in my view it is also clear that the defendant cannot be ordered to take measures similar to those envisaged in its proposal for a regulation. A draft, which is not certain to be adopted in its original form, does not constitute a legal provision and cannot therefore be the basis for benefits of any kind. If, however, the applicant is seeking to attain that legal consequence by means of compensation in specie in reliance upon a wrongful omission by the Commission, it must be said that he has not shown sufficiently clearly that the social protection which he considers necessary on the termination of employment governed by Community law could only assume the precise form which it takes in the Commission's proposal for a regulation. (cc) In his reply the applicant pleaded an alternative claim for an order requiring the Commission to take steps to ensure that as from the termination of his employment he enjoys the social protection to be granted by a future Council regulation. Quite apart from the question of the admissibility of such an amendment to the pleadings in the reply, that claim cannot be granted. It is indeed doubtful whether such a “contingent” order which takes account of provisions which may be adopted at a future date and would not permit immediate enforcement is at all conceivable. In any event, the claim discloses no interest capable of legal protection. If at some date rules such as those envisaged by the applicant are adopted and the applicant fulfils the requirements laid down therein for the conferment of benefits, it may naturally be assumed that he will receive those benefits without the Court's needing at this point to prompt the competent Community institutions to apply the rules. (dd) Consequently, there now only remains to be considered the question already mentioned of whether the Commission may be criticized for a wrongful omission because it did not endeavour to supplement at an earlier date the Conditions of Employment of Other Servants along the lines of its proposal of June 1979 and whether on that basis the applicant may be granted compensation which will by and large place him in the position in which he would have been if a social security scheme, which compelling reasons of principle require after the termination of a contract of employment, had been introduced in good time. In this regard it must be borne in mind that in principle such an order might be possible even though it was not expressly applied for. For one thing, it is possible to take the view that such claim is implied by the wording of the applicant's pleadings. Furthermore, it should be remembered that the Court of Justice has repeatedly proceeded on the basis of the principle that in disputes involving pecuniary claims, in which the Court has unlimited jurisdiction, it may award compensation of its own motion. In that connexion I refer to the judgment of 9 July 1980 in Case 23/69 {Fiehn v Commission [1970] ECR 547, at p. 559) or to the judgment of 5 June 1980 in Case 24/79 (Oberthiir v Commission [1980] ECR 1743). So far as concerns the main problem at issue here — that is to say, whether social protection of the kind envisaged by the applicant must be regarded as an essential requirement on the termination of insecure employment —, the line of argument put forward by the applicant does not appear to be particularly helpful or convincing. That is true of his reference to the very general principle of equity which was not shown to be relevant to the precise area with which the Court is concerned in this case. It is also true of the duty of assistance which, even going beyond the wording of Article 24 of the Staff Regulations, has never been regarded under Community law as having such far-reaching consequences in the field of social security and concerning which — in so far as national law is concerned — an interpretation to that effect was not proven. It is also true of the principle of social security, on which point the applicant confined himself to the claim that social security existed in all the Member States and that it was the aim of the Community to ensure social progress and social protection, in which case it might have been expected that — with the aid of a detailed study of comparative law — it would be shown that a certain level of social protection on the termination of insecure employment could be established as a common principle of the laws of the Member States or at least of the most progressive. However, if we ignore that fact and endeavour to clarify the position ourselves, it must first be observed that under the labour law of the Member States no principle may be discerned which requires the employer to arrange cover against the risk of sickness or invalidity even beyond the period of employment. This seems in general to be a matter for the employee himself, except in cases where unemployment insurance or social assistance intervenes. However, as regards insurance against the risk of unemployment the position seems to be rather different. Admittedly there is no general principle in the laws of the Member States which requires that all persons seeking employment should be insured in that way and receive assistance if they are unsuccessful in their efforts. None the less, the laws of all the Member States — pursuant to the European Code of Social Security of 16 April 1964 — provide that employed persons are to be insured in that way and are to enjoy on certain conditions protection guaranteeing a reasonable income for a certain period on termination of their employment. Moreover, that also applies to persons employed in the public service in so far as they do not enjoy security of employment. In the Member States of the Community, they are covered either by the general scheme of unemployment insurance (or a branch of it) or by a similarly organized scheme. Consequently, it would have been natural to lay down equivalent rules for Community servants in so far as their employment was not permanent, particularly since the national schemes do not as a rule — with the exception of pure social assistance, which is not equivalent and so does not concern us here — extend to unemployed former Community servants, owing to the particular conditions which they lay down (completion of a certain period of employment within the country concerned, payment of insurance contributions for social security or unemployment benefit). The fact that there is no protection of that kind for Community servants can in my view be regarded as nothing less than an intolerable lacuna. There would have been cause to close that lacuna, at least from 1976, when there was a considereable extension of employment on a contractual basis to areas such as administration where such a need is not immediately apparent. If this had been undertaken in good time, a satisfactory solution could no doubt have been found despite all the technical difficulties outlined in the oral procedure. The fact that no action was taken can, having regard to the standard which social security law has now attained in all the Member States, only be described as a serious deficiency and, consequently, as a wrongful omission on the part of the responsible Community institutions. In dealing with the specific cases which arise, the necessary consequences must now be attached to that omission by awarding appropriate compensation. As far as the assessment of compensation in the present case is concerned, we have heard that the applicant is apparently still unemployed and that under Belgian law he has not been able to take out voluntary insurance against the risk of unemployment. In this regard the Court has a certain degree of discretion in the exercise of which it may assume that Community rules would be modelled on the common principles of national law and may thus rely on certain criteria to be derived from those principles. One important criterion under national law is that the conferment of benefits is subject to completion of a certain period of employment or of affiliation to the unemployment insurance scheme. The periods in question — the minimum period of employment varies between 75 and 600 days and the period of affiliation to the social security scheme between 26 weeks and two years — warrant the immediate conclusion that the applicant, who was in the service of the Community for approximately three and a half years, cannot be allowed to remain without compensation even though he was previously self-employed. It is also significant that the laws of most Member States provide that the insured person is himself to make contributions and hence make payments in order to protect himself against the risk of unemployment. Any future Community scheme may also be expected to involve such payments; consequently, this must likewise be taken into account in assessing the amount of compensation. Finally, it is also important to mention that unemployment benefit is paid only for a limited period — varying between six and 18 months but generally about one year — and that it usually represents a certain percentage of the individual's previous salary — in the Federal Republic of Germany, for example, 68% of the previous remuneration, in Luxembourg 80% of the final gross salary subject to certain upper limits, in Denmark 90% of final income. Clearly, account must also be taken of such considerations. In view of the foregoing the view might be taken in the present case, which concerns a former servant in Grade A 3 commanding a relatively high salary, that compensation amounting to roughly 80% of his final annual basic salary is appropriate. However, I hesitate to propose at this point that judgment should be given to that effect. An essential requirement for such a judgment is that the applicant should actually have been unemployed following his dismissal from the service of the Community. A further requirement is that he should have endeavoured to find other employment without success, in which regard it must also be considered that before entering the service of the Community he was a self-employed business consultant. The present proceedings have not yet sufficiently clarified those points. Further clarification should be sought and then, following a declaration of principle that a wrongful omission on the part of the institutions has occurred, a settlement by mutual agreement may be achieved. Consequently, I propose that the Court should merely give a partial and interlocutory judgment.