Judgment of the Court (Second Chamber) of 18 October 1977. - André Schertzer v European Parliament. - Case 25-68.



European Court reports 1977 Page 01729

Greek special edition Page 00529

Portuguese special edition Page 00615



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - OTHER SERVANTS - TEMPORARY STAFF - STAFF EMPLOYED TO FILL POSTS WITH A POLITICAL GROUP IN THE EUROPEAN PARLIAMENTARY ASSEMBLY - CONTRACT FOR AN INDEFINITE PERIOD - CLAUSE RELATING TO NOTICE - TERMINATION OF THE CONTRACT - NO STATEMENT OF REASONS REQUIRED

( CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , ARTICLES 11 AND 47 )

Summary

THE JUSTIFICATION FOR THE UNILATERAL TERMINATION OF A CONTRACT OF EMPLOYMENT FOR AN INDEFINITE PERIOD CONTAINING A CLAUSE STATING THE PERIOD OF NOTICE , SUCH TERMINATION BEING EXPRESSLY PROVIDED FOR BY ARTICLE 47 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , IS TO BE FOUND IN THE CONTRACT OF EMPLOYMENT AND REASONS DO NOT HAVE TO BE STATED FOR IT . IN THIS RESPECT THE POSITION OF TEMPORARY STAFF IS FUNDAMENTALLY DISTINCT FROM THAT OF OFFICIALS UNDER THE STAFF REGULATIONS ; IN PARTICULAR , THERE IS NO BASIS FOR THE ANALOGY WHICH JUSTIFIES AND LIMITS THE REFERENCE CONTAINED IN ARTICLE 11 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS TO ARTICLE 25 OF THE STAFF REGULATIONS OF OFFICIALS .

Parties

IN CASE 25/68

ANDRE SCHERTZER , FORMERLY A MEMBER OF THE TEMPORARY STAFF OT THE EUROPEAN PARLIAMENT , RESIDING IN CAP D ' AGDE ( FRANCE ), REPRESENTED BY MARCEL SLUSNY , ADVOCATE AT THE COUR D ' APPEL , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34 B/IV RUE PHILIPPE-II ,

APPLICANT ,

V EUROPEAN PARLIAMENT , REPRESENTED BY ITS SECRETARY GENERAL , HANS-ROBERT NORD , ACTING AS AGENT , ASSISTED BY ALEX BONN , ADVOCATE OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BONN , 22 COTE D ' EICH ,

Subject of the case

DEFENDANT , APPLICATION FOR THE ANNULMENT OF THE MEASURE OF 19 SEPTEMBER 1968 BY WHICH THE EUROPEAN PARLIAMENT TERMINATED WITH EFFECT FROM 16 SEPTEMBER 1968 THE APPLICANT ' S CONTRACT AS A MEMBER OF THE TEMPORARY STAFF , ALTERNATIVELY OF THE IMPLIED DECISION REJECTING THE APPLICANT ' S CAMPLAINT AGAINST THE LETTER OF 12 MARCH 1968 BY WHICH THE EUROPEAN DEMOCRATIC UNION GROUP ( NOW THE EUROPEAN PROGRESSIVE DEMOCRATS GROUP ) TERMINATED HIS EMPLOYMENT AS ADMINISTRATIVE GENERAL SECRETARY , ALTENATIVELY OF THE RULING CONTAINED IN THE LETTER FROM THE PRESIDENT OF THE EUROPEAN PARLIAMENT DATED 24 JULY 1968 THAT THE APPLICANT ' S COMPLAINT WAS INADMISSIBLE ,

Grounds

1 BY HIS APPLICATION DATED 9 OCTOBER 1968 THE APPLICANT SEEKS THE ANNULMENT OF THE MEASURE BY WHICH THE EUROPEAN DEMOCRATIC UNION GROUP ESTABLISHED WITHIN THE EUROPEAN PARLIAMENT TERMINATED HIS EMPLOYMENT AS ADMINISTRATIVE GENERAL SECRETARY .

STATE OF THE PROCEDURE

2 AFTER THE WRITTEN PROCEDURE WAS COMPLETED THE APPLICANT PRODUCED ON 26 SEPTEMBER 1969 A NUMBER OF NEW DOCUMENTS RELATING TO HIS ACTION AGAINST THE EUROPEAN DEMOCRATIC UNION GROUP .

3 BY ORDERS DATED 1 AND 29 OCTOBER 1969 THE COURT AUTHORIZED THESE DOCUMENTS TO BE LODGED , WITHOUT PREJUDICE TO THE RIGHTS OF THE DEFENDANT AND SUBJECT TO THEIR ADMISSIBILITY , AUTHENTICITY AND RELEVANCE , IN RESPECT OF WHICH CERTAIN WERE CHALLENGED .

4 AT THE SAME TIME THE COURT WAS INFORMED THAT IN RELATION TO THE SAME DOCUMENTS THE APPLICANT HAD FILED A COMPLAINT BEFORE THE TRIBUNAL DE GRANDE INSTANCE , PARIS , AGAINST AN UNKNOWN PERSON FOR BREACH OF CONFIDENCE AND THAT IN THEIR TURN TWO MEMBERS OF THE EUROPEAN PARLIAMENT BELONGING TO THE EUROPEAN DEMOCRATIC UNION GROUP HAD LODGED A COMPLAINT AGAINST THE APPLICANT BEFORE THE TRIBUNAL DE GRANDE INSTANCE , STRASBOURG , FOR FORGERY AND THE UTTERING OF FORGED DOCUMENTS .

5 IN VIEW OF THE CONNEXION BETWEEN THESE ACTIONS AND THE PRESENT CASE THE COURT , BY ORDER DATED 3 DECEMBER 1969 , STAYED THE PROCEEDINGS PENDING THE DECISIONS TO BE TAKEN ON THE COMPLAINTS REFERRED TO .

6 IN THE ABSENCE OF ANY INFORMATION ON THE OUTCOME OF THOSE ACTIONS AFTER THE LAPSE OF A PROLONGED PERIOD THE COURT INFORMED THE APPLICANT BY LETTER DATED 14 NOVEMBER 1975 THAT IT INTENDED TO REMOVE THE CASE FROM THE REGISTER , AND SET THE PARTIES A TIME-LIMIT WITHIN WHICH TO SUBMIT ANY OBSERVATIONS .

7 FOLLOWING THIS NOTIFICATION THE APPLICANT GAVE NOTICE OF HIS INTENTION TO CONTINUE THE ACTION AND SUBSEQUENTLY INFORMED THE COURT THAT THE COMPLAINT LODGED AGAINST HIM BEFORE THE TRIBUNAL DE GRANDE INSTANCE , STRASBOURG , WAS NOT BEING PURSUED .

8 ON THE OTHER HAND , HE WAS NOT ABLE TO GIVE ANY INFORMATION AS TO THE RESULT OF THE COMPLAINT WHICH HE HAD HIMSELF MADE TO THE TRIBUNAL DE GRANDE INSTANCE , PARIS .

9 UPON COMPLETION OF THE FILE THE CASE WAS HEARD ON 9 JUNE 1977 AND DELIBERATED AFTER THE ADVOCATE-GENERAL HAD DELIVERED HIS OPINION .

THE SUBJECT-MATTER AND ADMISSIBILITY OF THE ACTION

10 BY LETTER DATED 12 MARCH 1968 SIGNED BY THE CHAIRMAN AND BY A MEMBER OF THE EUROPEAN DEMOCRATIC UNION GROUP THE APPLICANT WAS INFORMED THAT THE GROUP HAD DECIDED TO TERMINATE THE EMPLOYMENT WHICH HE HAD ENTERED PURSUANT TO A CONTRACT OF EMPLOYMENT DATED 29 JANUARY 1965 .

11 THAT LETTER GAVE THREE MONTHS ' NOTICE FROM NOTIFICATION OF THE DECISION , IT BEING UNDERSTOOD THAT THE REMUNERATION RELATING TO THAT PERIOD WOULD BE PAID BUT THAT THE APPLICANT WOULD NOT BE REQUIRED TO DISCHARGE HIS DUTIES .

12 ON 10 JUNE 1968 THE APPLICANT FORWARDED A COMPLAINT THOUGH OFFICIAL CHANNELS UNDER ARTICLE 46 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITY AND ARTICLE 90 OF THE STAFF REGULATIONS TO THE PRESIDENT OF THE EUROPEAN PARLIAMENT AGAINST THE COMMUNICATION OF 12 MARCH 1968 .

13 BY LETTER DATED 24 JULY 1968 THE PRESIDENT INFORMED THE APPLICANT THAT HIS COMPLAINT WAS WRONGLY ADDRESSED SINCE THE BUREAU OF THE EUROPEAN PARLIAMENT HAD BY DECISION DATED 12 DECEMBER 1962 ENTRUSTED EACH POLITICAL GROUP WITH THE TASK OF APPOINTING THE AUTHORITY EMPOWERED TO CONCLUDE CONTRACTS OF EMPLOYMENT WITH ITS SERVANTS , SO THAT THE COMPLAINT SHOULD HAVE BEEN MADE TO THE CHAIRMAN OF THE GROUP .

14 AT THE SAME TIME THE EUROPEAN DEMOCRATIC UNION GROUP ASKED THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT TO POSTPONE THE EXPIRY OF THE NOTICE TERMINATING THE APPLICANT ' S CONTRACT OF EMPLOYMENT UNTIL 16 SEPTEMBER 1968 , IN VIEW OF THE FACT THAT BECAUSE OF HIS WORK HE HAD BEEN UNABLE TO TAKE ALL THE LEAVE TO WHICH HE WAS ENTITLED .

15 BY LETTER DATED 10 JUNE 1968 SENT TO THE PARLIAMENTARY SECRETARY OF THE EUROPEAN DEMOCRATIC UNION GROUP , THE SECRETARY-GENERAL OF THE EUROPEAN PARLIAMENT STATED THAT HE HAD NOTED THE NEW DATE ON WHICH THE CONTRACT OF EMPLOYMENT WAS TO EXPIRE AND THAT HE WOULD HAVE REGARD TO IT IN SPITE OF CERTAIN RESERVATIONS WHICH HE HAD AS TO WHETHER THE EXTENSION WAS IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE STAFF REGULATIONS .

16 AS A RESULT THE DIRECTOR-GENERAL OF ADMINISTRATION OF THE EUROPEAN PARLIAMENT FORWARDED TO THE APPLICANT BY LETTER DATED 19 SEPTEMBER 1968 THE ACCOUNT OF THE SEVERANCE GRANT DUE UPON TERMINATION OF THE CONTRACT OF EMPLOYMENT ON 16 SEPTEMBER 1968 .

17 THE APPLICANT HAS BROUGHT HIS ACTION MAINLY AGAINST THE LETTER FROM THE DIRECTOR-GENERAL OF ADMINISTRATION DATED 19 SEPTEMBER 1968 , AND ALTERNATIVELY AGAINST THE IMPLIED DECISION OF REJECTION OF THE COMPLAINT LODGED ON 10 JUNE 1968 WITH THE PRESIDENT OF THE EUROPEAN PARLIAMENT IN RESPECT OF THE LETTER OF TERMINATION DATED 12 MARCH 1968 .

18 THE EUROPEAN PARLIAMENT , TAKING THE VIEW THAT THE DECISIVE MEASURE IS THE LETTER OF TERMINATION DATED 12 MARCH 1968 , HAS CONTESTED THE ADMISSIBILITY OF THE ACTION ON GROUNDS OF DELAY .

19 ALTHOUGH IT IS TRUE THAT THE LETTER OF TERMINATION DATED 12 MARCH 1968 FROM THE EUROPEAN DEMOCRATIC UNION GROUP MUST BE REGARDED AS HAVING ALONE GIVEN RISE TO THE CLAIM IN THE ACTION , THE EFFECT OF THE DELAY IN INSTITUTING PROCEEDINGS SHOULD NOT BE STRICTLY APPLIED TO THE APPLICANT IN VIEW OF THE DIFFICULTY WHICH HE EXPERIENCED IN IDENTIFYING THE AUTHORITY COMPETENT TO RECEIVE HIS COMPLAINT AND THE UNCERTAINTY WITH REGARD TO THE PERIOD OF NOTICE WHICH RESULTED FROM THE EXTENSION REQUESTED ON HIS BEHALF BY THE EUROPEAN DEMOCRATIC UNION GROUP AND GRANTED BY THE SECRETARY-GENERAL OF THE PARLIAMENT .

20 IN THESE CIRCUMSTANCES THE WRONGLY ADDRESSED COMPLAINT OF 10 JUNE 1968 MAY BE REGARDED AS HAVING PRESERVED THE APPLICANT ' S RIGHT OF ACTION .

21 THE ACTION IS THEREFORE ADMISSIBLE .

SUBSTANCE

22 THE APPLICANT PUTS FORWARD FOUR SUBSTANTIVE SUBMISSIONS , BASED ON THE LACK OF COMPETENCE OF THE AUTHORITY WHICH DECIDED HIS DISMISSAL , INFRINGEMENT OF PROVISIONS GOVERNING THE EMPLOYMENT OF STAFF , LACK OF A STATEMENT OF REASONS FOR THE DECISION TAKEN WITH REGARD TO HIM AND MISUSE OF POWERS .

23 IN ASSESSING THOSE SUBMISSIONS IT IS PROPER TO RECALL THAT THE BASIS OF THE APPLICANT ' S RELATIONSHIP WITH THE DEFENDANT INSTITUTION AND WITH HIS IMMEDIATE EMPLOYER , THE EUROPEAN DEMOCRATIC UNION GROUP , WAS A ' CONTRACT OF EMPLOYMENT AS A MEMBER OF THE TEMPORARY STAFF ' , SIGNED ON 29 JANUARY 1965 , BETWEEN THE APPLICANT AND THE CHAIRMAN OF THE EUROPEAN DEMOCRATIC UNION GROUP ACTING IN THE NAME OF THE EUROPEAN PARLIAMENT .

24 UNDER THAT CONTRACT THE APPLICANT WAS ENGAGED ' SUBJECT TO THE PROVISIONS OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES AS A MEMBER OF THE TEMPORARY STAFF ' AND CLASSIFIED IN GRADE 3 OF CATEGORY A .

25 THE CONTRACT WAS CONCLUDED ' FOR AN INDEFINITE PERIOD ' SUBJECT TO TERMINATION ON THREE MONTHS ' NOTICE BY THE EMPLOYER AND ONE MONTH ' S NOTICE BY THE PERSON CONCERNED - WITHOUT PREJUDICE TO ARTICLES 48 , 49 AND 50 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS WHICH PROVIDE FOR IMMEDIATE DISMISSAL .

THE SUBMISSION AS TO LACK OF COMPETENCE

26 THE APPLICANT MAINTAINS THAT TO HAVE LEGAL EFFECT THE LETTER OF TERMINATION DATED 12 MARCH 1968 SHOULD HAVE BEEN SIGNED IN THE NAME OF THE EUROPEAN PARLIAMENT BY THE APPOINTING AUTHORITY AND NOT BY THE CHAIRMAN OF A POLITICAL GROUP , ESPECIALLY AS HIS CONTRACT OF EMPLOYMENT WAS SIGNED AT THE TIME BY THE CHAIRMAN OF THE EUROPEAN DEMOCRATIC UNION GROUP ACTING ' ON BEHALF OF THE EUROPEAN PARLIAMENT ' .

27 IT IS NOT CONTESTED THAT BY DECISION OF THE BUREAU OF THE PARLIAMENT DATED 12 DECEMBER 1962 THE POWER TO CONCLUDE AND TERMINATE CONTRACTS OF EMPLOYMENT WAS DELEGATED TO THE POLITICAL GROUPS IN RESPECT OF STAFF PLACED AT THEIR DISPOSAL .

28 THE APPLICANT CANNOT THEREFORE CONTEST THE POWER OF THE CHAIRMAN OF THE EUROPEAN DEMOCRATIC UNION GROUP TO TERMINATE A CONTRACT CONCLUDED BY HIS PREDECESSOR IN THE SAME CAPACITY .

29 THIS SUBMISSION MUST THEREFORE BE REJECTED .

THE SUBMISSION BASED ON AN INFRINGEMENT OF THE PROVISIONS GOVERNING THE EMPLOYMENT OF STAFF

30 THE APPLICANT CLAIMS THAT SINCE HIS CONTRACT WAS EXTENDED FOLLOWING THE LETTER OF TERMINATION DATED 12 MARCH 1968 A NEW PERIOD OF NOTICE SHOULD HAVE BEEN SET , AND THAT ARTICLE 47 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS WAS INFRINGED SINCE PARAGRAPH ( 2 ) THEREOF PROVIDES THAT WHERE THE CONTRACT IS FOR AN INDEFINITE PERIOD THE EMPLOYMENT SHALL CEASE ONLY AT THE END OF THE PERIOD OF NOTICE STIPULATED IN THE CONTRACT .

31 THE LETTER OF TERMINATION DATED 12 MARCH 1968 CLEARLY SHOWS THE INTENTION OF THE EUROPEAN DEMOCRATIC UNION GROUP TO TERMINATE THE APPLICANT ' S EMPLOYMENT .

32 THIS INTENTION TO TERMINATE IS CONFIRMED BY THE FACT THAT THE APPLICANT WAS NOT REQUIRED TO DISCHARGE HIS DUTIES DURING THE PERIOD OF NOTICE .

33 THE STEPS TAKEN BY THE EUROPEAN DEMOCRATIC UNION GROUP TO OBTAIN ON BEHALF OF THE APPLICANT AN EXTENSION OF THIS PERIOD OF REMUNERATION FOLLOWING HIS SUSPENSION FROM HIS POST CANNOT BE REGARDED AS A REVOCATION OF A FORMALLY WORDED DISMISSAL .

34 THE SUBMISSION MUST THEREFORE BE REJECTED .

LACK OF A STATEMENT OF REASONS

35 THE APPLICANT CLAIMS THAT THE LETTER OF TERMINATION DATED 12 MARCH 1968 CONTAINS NO MENTION OF THE REASONS FOR THE TERMINATION OF HIS EMPLOYMENT .

36 HE STATES THAT THAT DECISION IS ACCORDINGLY CONTRARY TO THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS WHICH PROVIDES THAT : ' ANY DECISION ADVERSELY AFFECTING AN OFFICIAL SHALL STATE THE GROUNDS ON WHICH IT IS BASED ' , SINCE THE APPLICANT MAY RELY ON THAT PROVISION IN VIEW OF THE FIRST PARAGRAPH OF ARTICLE 11 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS , WHICH PROVIDES : ' ARTICLES 11 TO 26 OF THE STAFF REGULATIONS , CONCERNING THE RIGHTS AND OBLIGATIONS OF OFFICIALS , SHALL APPLY BY ANALOGY . . . '

37 IN ADDITION , THE APPLICANT REFERS IN THIS RESPECT TO CONSIDERATIONS RELATING TO THE CHARACTERISTICS OF CONTRACTS OF EMPLOYMENT AND THE GUARANTEES AS TO SECURITY GIVEN TO MEMBERS OF STAFF RECRUITED UNDER CONTRACT , WHICH CONSIDERATIONS WERE SET OUT BY THE COURT IN ITS JUDGMENTS OF 15 JULY 1960 IN CASES 43 , 45 AND 48/59 , VON LACHMULLER AND OTHERS , AND 16 DECEMBER 1960 IN CASE 44/59 , FIDDELAAR , ( REC . 1960 , PP . 933 AND 1077 RESPECTIVELY ).

38 ARTICLE 47 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS PROVIDES THAT THE EMPLOYMENT OF TEMPORARY STAFF SHALL CEASE , WHERE THE CONTRACT IS FOR A FIXED PERIOD , ON THE DATE STATED IN THE CONTRACT AND , WHERE THE CONTRACT IS FOR AN INDEFINITE PERIOD , AT THE END OF THE PERIOD OF NOTICE STIPULATED IN THE CONTRACT .

39 THE JUSTIFICATION FOR THE UNILATERAL TERMINATION OF A CONTRACT OF EMPLOYMENT , EXPRESSLY PROVIDED FOR IN THE AFOREMENTIONED PROVISION AND , IN ADDITION , RECOGNIZED BY THE APPLICANT AT THE TIME OF HIS RECRUITMENT , IS TO BE FOUND IN THE CONTRACT OF EMPLOYMENT AND THEREFORE REASONS DO NOT HAVE TO BE STATED FOR IT .

40 IN THIS RESPECT THE POSITION OF THE APPLICANT IS FUNDAMENTALLY DISTINCT FROM THAT OF AN OFFICIAL UNDER THE STAFF REGULATIONS , SUCH THAT THERE IS NO BASIS FOR THE ANALOGY WHICH JUSTIFIES AND LIMITS THE REFERENCE CONTAINED IN ARTICLE 11 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS TO CERTAIN PROVISIONS OF THE STAFF REGULATIONS .

41 IT IS NOT POSSIBLE TO COUNTER THIS LEGAL ASSESSMENT WITH CONSIDERATIONS DRAWN FROM THE PERIOD PRIOR TO THE ADOPTION OF THE STAFF REGULATIONS , WHEN CONTRACTUAL RELATIONS WERE THE GENERAL RULE AND WERE INTENDED AS A WHOLE TO BE CONSOLIDATED SUBSEQUENTLY WITHIN THE FRAMEWORK OF THE STAFF REGULATIONS .

42 CONSIDERATIONS OF THIS NATURE ARE THEREFORE IRRELEVANT SINCE THIS CASE IS CONCERNED WITH THE ASSESSMENT OF THE POSITION OF A MEMBER OF STAFF RECRUITED FOR A PARTICULAR PURPOSE OF AN ESSENTIALLY POLITICAL NATURE , AS DEFINED IN ARTICLE 2 ( C ) OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS .

THE SUBMISSION OF MISUSE OF POWERS

43 FINALLY , THE APPLICANT REFERS TO A NUMBER OF FACTORS ALLEGED TO SHOW THAT HIS DISMISSAL WAS ORDERED FOR REASONS ALIEN TO THE INTERESTS OF THE SERVICE AND CONSTITUTES ' A DISGUISED SANCTION ' AGAINST HIM .

44 IN SPITE OF THE VERY FAVOURABLE ASSESSMENT OF HIS WORK REPORTED IN THE MINUTES OF THE EUROPEAN DEMOCRATIC UNION GROUP AND IN DOCUMENTS SAID TO HAVE BEEN SENT TO HIM , THE DECISIVE REASON FOR HIS DISMISSAL IS ALLEGED TO HAVE BEEN TO PROVIDE A POST FOR A MEMBER OF THE GROUP , A FORMER MEMBER OF THE PARLIAMENT WHO HAD NOT BEEN RE-ELECTED .

45 IN ACCEPTING A POST WITH VERY SPECIAL CHARACTERISTICS SUCH AS THAT OF GENERAL SECRETARY OF A PARLIAMENTARY GROUP THE APPLICANT MUST HAVE BEEN AWARE OF THE POLITICAL FACTORS AND RISKS WHICH WERE INVOLVED BOTH IN HIS RECRUITMENT AND HIS SUBSEQUENT DISMISSAL .

46 THE COMPLAINTS MADE BY HIM AGAINST HIS FORMER EMPLOYER DO NOT REVEAL ANY BREACH OF CONTRACT ON THE PART OF THE GROUP TO WHICH HE WAS POSTED .

47 NOR CAN HIS DISMISSAL BE DESCRIBED AS A ' DISGUISED SANCTION ' WHEN IT REPRESENTS MERELY THE EXERCISE OF A CONTRACTUAL RIGHT WHICH THE PARTIES RESERVED WHEN THE CONTRACT OF EMPLOYMENT WAS CONCLUDED .

48 THIS SUBMISSION MUST THEREFORE BE DISMISSED .

49 FOR ALL THE ABOVEMENTIONED REASONS BOTH THE APPLICATION FOR A DECLARATION THAT THE DISMISSAL , THE SUBJECT-MATTER OF THE LETTER OF 12 MARCH 1968 , IS NULL AND VOID AND THE CLAIM FOR DAMAGES IN RESPECT OF NON-MATERIAL LOSS MUST BE DISMISSED .

Decision on costs

COSTS

50 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

51 THE APPLICANT HAS FAILED IN HIS SUBMISSIONS .

52 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BROUGHT BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .

53 BY ORDER OF 28 APRIL 1977 THE COURT ( SECOND CHAMBER ) GRANTED THE APPLICANT LEGAL AID .

54 IN APPLICATION OF ARTICLE 76 ( 5 ) OF THE RULES OF PROCEDURE IT IS APPROPRIATE TO ORDER THE PAYMENT TO THE CASHIER OF THE COURT OF THE AMOUNT ADVANCED BY WAY OF LEGAL AID .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS . THE APPLICANT IS ORDERED TO REFUND TO THE COURT THE AMOUNTS ADVANCED BY IT AS LEGAL AID .