1.

No particular formal provision and no special Community text are applicable here. Thus it is desirable first of all to examine what legal principles must be borne in mind in order to assess this case. The parties defend opposing views on this point. The applicant is of the opinion that the contractual relationship of employment which exists between the Community and its servants entitles the latter to expect without doubt that they shall later be made established officials, unless a servant shows himself to be incompetent or unless the abolition of a post results in its being no longer in the interests of the service to employ him. To this the defendant replies that the contracts of employment are concluded for a limited period and make express provision for compensation should they not be renewed, such that the decision to renew or not to renew is in the discretion of the authority which has engaged the servant. Article 7 of the Convention on the Transitional Provisions provides: ‘Until the Committee provided for in Article 78 of the Treaty has decided upon the size of the staff of the Community and has laid down staff regulations, the personnel required shall be engaged on a contractual basis’. On the basis of this provision, the whole of the staff of the Community was engaged under contracts of varying length, not usually exceeding two years and, in certain cases, under contracts which were considered as monthly contracts. Provisionally, those contracts were very explicit on certain points and referred, on other questions, to Internal Rules established by the relevant institution of the Community for its staff. In February 1953 the Committee of Presidents created a committee to prepare the definitive Staff Regulations. That committee first of all drew up provisional Staff Rules which rendered uniform the previous Internal Rules of the different institutions. Those provisional Staff Rules were put into force in very similar forms at the Court of Justice and at the Common Assembly in July 1953, at the Council of Ministers in November 1953 and at the High Authority in March 1954. They are based on the necessity ‘to establish provisional Staff Rules until such time as the Staff Regulations of the Institutions of the Community shall come into force’. Article 2 provides for a probationary period of a maximum length of three months, during which the institution can terminate the contract on one month's notice. Once that period is over, the Rules no longer provide that the institution may proceed to a dismissal. Admittedly, Article 46 provides for removal from post, but only as the most serious disciplinary sanction, after a normal disciplinary procedure. When, at the beginning of 1954, the expiry of a large number of contracts was imminent, whereas the implementation of definitive Staff Regulations did not seem immediately foreseeable, the Committee of Presidents adopted, at its sixth meeting on 19 March 1954, the following decision: ‘The Commission decides to extend to 31 December 1955 the contracts of all servants holding contracts of employment for a period of more than one year. Contracts for a lesser period shall be extended by one year only. Notwithstanding the above, the institutions shall retain the power not to grant the above-mentioned extension to any servants who may show themselves unsuited to their duties. The contracts of servants who are later brought within the ambit of the Staff Regulations shall cease to have effect upon the entry into force of the said Staff Regulations’. That decision was adopted because it was considered useful for the contracts to expire so far as possible on the same date in order to facilitate a rapid changeover to the Staff Regulations. Consideration was even given to extending the contracts until the as yet undetermined date of entry into force of the definitive Staff Regulations. It is common knowledge that the drafting of the definitive Staff Regulations has not yet been completed and that it is still the case that the whole staff are on contracts extended beyond their original expiry date. I think that the following conclusions may be drawn from this factual situation: Staff occupying permanent butgetary posts — which means other than auxiliary and temporary servants — whose contracts do not contain any provision to the contrary, cannot be dismissed by the institution once the probationary period has expired. The fact that the contract refers to a large extent to provisional Staff Rules of itself means that there is a similarity with the situation of an established official. The main purpose of the limitation of the contracts in time is to permit a rapid changeover from the contractual system to the anticipated Staff Regulations. So long as it is not possible to bring the definitive Staff Regulations into force, the interests of the continuity of the service require that such contracts be extended by a general measure. According to the wording of the decision of the Committee of Presidents, the institutions ‘shall retain’ the power not to grant an extension of contract in the case of a lack of professional competence on the part of the servant. It may be thought that this power is the already existing power to remove a servant from his post. However, I think that there is a distinction and that the expiry of the contract makes a difference. While the contract is in force, removal from post may only occur as a result of serious misconduct followed by a formal disciplinary procedure. But when the contract expires the administration has a wider freedom of action; it can also take into account a lack of professional competence which has become apparent without its being necessary to establish any particular instance of misconduct against the servant. Nevertheless if, on this ground, a contract is not renewed, certain conditions must be respected and the person concerned must be offered legal guarantees simular to those connected with the disciplinary procedure. Thus the requisite reports by the servant's immediate superiors must be included in his personal file concerning his ability, efficiency and conduct in the service. Those reports — as also the whole of the personal file — must be brought to the notice of the person concerned, and he must be given an opportunity to submit his observations. The institution, acting on its own responsibility, may then adopt a reasoned decision not to renew the contract. This is the only means of reaching a state of affairs whereby on the one hand the administration can part company with an unsuitable servant and on the other hand the servant enjoys adequate protection against an arbitrary decision not to renew his contract, together with the possibility of inviting the Court to review that decision. The fundamental principle of equality of treatment requires, moreover, that where there is a general renewal of identical contracts, any exception to that general measure must be justified by an appropriate procedure. Therefore while it is true that a contractual servant does not have a right to be established and to be given a permanent post, he may nevertheless claim, first, the benefit of the rights of the defence and of equality of treatment and, secondly, that any exception made as against him to the general measures of renewal of the contracts must be enshrined in a reasoned decision adopted by the competent authority in accordance with an adequate procedure and subject to review by the Court. Let me draw the attention of the Court to certain comparisons that may be made with the very recent decision of the Administrative Tribunal of the International Labour Organization, mentioned by the applicant. As you know, I have in mind the judgment delivered in Duberg v UNESCO. The Tribunal rejected UNESCO's argument to the effect that the said institution had the discretionary and sovereign power to refuse to extend certain contracts notwithstanding a general renewal to which it had proceeded. The Tribunal held that an engagement for a specified period could not be treated as a trial engagement and that reasons had to be stated for an exceptional decision not to renew so as to exclude arbitrary decisions and to enable the Tribunal to exercise its power to review the legality of the decision. More precisely, the Tribunal expressly stated in that judgment that it intended to proceed to a general review of the legality , which was its judicial function. In that case, it delivered judgment only on the question whether the reasons given could in general terms justify a decision not to renew a contract. I have no objection, either, to following the general principles of the case-law of the Conseil d'État. Nor would it appear to me that in the other judgments of international bodies, mentioned by the parties, it was the appropriateness of an administrative decision that was reviewed. The principles mentioned above, namely, the right to defend oneself before a court or tribunal, equality before the law and equality before the courts, are fundamental rights recognized by the constitutions of all modern States. The fact that in the case of a decision not to renew a contract of this kind there is a condition that certain payments shall be made, subject to no further conditions, does not dispense the administrative authority from the obligation to respect these fundamental rights. It should be observed that the draft definitive Staff Regulations of the Community provide that servants dismissed at the end of the probationary period shall be paid three months' salary, but that nevertheless a precise procedure is laid down: the report on the ability of the probationary official must be communicated to him, he has the right to submit his comments in writing and it is only thereafter that the relevant appointing authority adopts its decision in full knowledge of the facts. ( 3 ) Similarly in the case of dismissal for lack of professional competence ( 4 ) on the part of a servant engaged on a definitive basis, the Staff Regulations provide both for a payment and for a procedure, the form of which is fixed by reference to the disciplinary procedure. It is upon the conclusion of that procedure that the appointing authority adopts a reasoned decision. These principles are of use only in assessing whether, in the case of a general renewal of similar contracts, the decision not to renew one or several of those contracts has been taken regularly. But the question whether, in addition, there exists a possible wrongful act on the part of the administration involving the obligation to pay damages is still undecided. This question of the payment of damages still has to be examined.