1.

This case follows on from the proceedings in which the Court gave judgment on 16 October 1984 in Case 257/83 Williams v Court of Auditors [1984] ECR 3547 in which the Court, upon the application of Mr Williams, annulled the decision of 24 March 1983 appointing Hartmut Schwiering a probationary official in Grade A 5 following an internal competition. Mr Schwiering, who did not intervene in those proceedings, is now the applicant in this case.From 1 December 1977 Mr Schwiering was attached to the Cabinet of Mr Leicht, the German Member of the Court of Auditors. In 1982 he applied to take part in the internal competition. He was placed first on the list of suitable candidates drawn up by the Selection Board and on 1 April 1983 he was appointed a probationary official in Grade A 5 and assigned to a post of principal administrator. He was established with effect from 1 January 1984. In its judgment in Case 257/83 the Court held that the decision making that appointment should ‘be treated as if it had never been taken’ (paragraph 24 of the decision). In order to comply with that decision the Court of Auditors adopted the following two measures: (i) on 18 October 1984 it appointed Mr Williams, who was second on the list of suitable candidates, as a principal administrator, a post which Mr Schwiering could no longer occupy; (ii) on 24 October 1984 it notified Mr Schwiering of the annulment with effect from 16 October 1984 of the decision appointing him an official and offered to him, with effect from that date, a contract as a member of the temporary staff in Grade A 7, Step 3. It was also decided that ‘the negative financial effects resulting from Mr Schwiering's particular administrative position would take effect on the first day of the month following notification, namely 1 November 1984’. In a letter of 25 October 1984 addressed to the defendant, Mr Schwiering maintained that he was not responsible for the situation created by the judgment in Case 257/83 and that he accepted the temporary contract offered to him ‘only subject to the express condition that it could if necessary be renewed before the question of (his) position (in particular with regard to the resultant loss of income) was finally resolved’. It may be noted that the temporary contract has been renewed without interruption. On 19 December 1984 the applicant's lawyer proposed a settlement to the Court of Auditors. The proposal was based on the proposition that the ‘retroactive annulment of Mr Schwiering's appointment automatically entailed the nullity of the implied termination of his previous position as a member of the temporary staff’ and that therefore he was still entitled to hold that position. It was proposed that with effect from 1 April 1983 until a ‘date to be agreed’ he should receive the remuneration payable under his former contract as a member of the temporary staff ‘which was still in force on 1 April 1983’. At the date agreed upon the former temporary contract would be replaced by another contract for a permanent post in Grade A 5 or Grade A 7/A 6, with, in the latter case, the payment of a compensatory allowance, which would be in accordance with the case-law of the Court concerning Community servants. In addition, ‘the Court of Auditors would give Mr Schwiering the opportunity to take part in an internal competition organized with a view to filling definitively the post to which he had been appointed’, corresponding to his qualifications. In the event of an agreement, Mr Schwiering would waive any right to legal action. In that letter, in addition, it was stated that Mr Schwiering reserved the right to request compensation ‘with respect to the legal consequences of the contract of employment of 15 December 1977 together with its amendment of 1979 and to the annulment of the decision establishing him’. On 16 January 1985, Mr Schwiering requested that appointing authority to consider the letter from his lawyer as a complaint within the meaning of Article 90 (2) of the Staff Regulations. By a letter of 15 February 1985, the President of the Court of Auditors acknowledged that request but, at the same time, rejected the complaint. It was stated in that letter, in the first place, that all persons attached to the cabinet of a Member of the Court of Auditors whose contracts, like Mr Schwiering's, did not contain a clause linking the termination of the contract- to the expiry of the Member's term of office had received a letter informing them that their contracts ‘would be terminated automatically at the end of the term of office of the Member concerned if his term of office were not renewed’, and, secondly, that the duty to provide for his welfare had been entirely respected since he had been placed in the most favourable situation possible having regard to the provisions of the Staff Regulations.