Opinion of Mr Advocate General Vilaça delivered on 5 February 1987. - C. Dufay v European Parliament. - Temporary staff - Regrading - Dismissal. - Case 257/85.



European Court reports 1987 Page 01561



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Background

1 . The applicant, Christiane Dufay, was recruited on 1 July 1973 by the Liberal and Allies Group, now the Liberal, Democratic and Reformist Group, in the European Parliament as a member of the temporary staff in Grade B3, Step 1, in order to stand in for another official and to carry out her duties at the secretariat of that group in Paris . On 31 January 1975 her contract was converted into a contract of indefinite duration .

2 . On 15 July 1980 the applicant received a letter from the Secretary-General of the group, terminating her contract as from 1 August owing to the problems which had arisen in connection with the reorganization of the secretariat in Paris .

3 . The applicant, however, continued to occupy her post, whilst carrying out new duties . That seems to have been the result, in particular, of the Staff Committee' s protests against her dismissal, which led to a solution whereby she was to continue to work for the Liberal and Democratic Group after being reclassified in Grade C2 Step 5 . For some months, however, and pending clarification of her position, she continued to receive a salary corresponding to Grade B3, Step 4 .

4 . The applicant regularized her new status by signing a rider to the original contract, dated 7 April 1981, which took effect on 1 November 1980 . As a result, she had to reimburse the difference in salary between Grade B3, Step 4 and Grade C2, Step 5, until June 1984, notwithstanding her attempts to avoid repayment of the sum in question, pursuant to Article 85 of the Conditions of Employment of Other Servants of the European Communities (" the Conditions of Employment ").

5 . Finally, by letter of 15 October 1984, the President of the Liberal and Democratic Group, referring to the change in the political composition of the Parliament terminated the applicant' s contract with effect from 1 December 1984 and gave her three months' notice pursuant to Article 47 ( 2 ) of the Conditions of Employment .

6 . On 11 April 1985 the applicant lodged a complaint against that decision with the Parliament : the complaint remained unanswered .

B - Subject-matter of the application

7 . In the application lodged on 18 August 1985, the applicant claims that the Court should :

( i ) order the defendant to pay her, by way of additional notice, the equivalent of seven months' salary calculated on the basis of her last salary, pursuant to Article 47 of the Conditions of Employment;

( ii ) order the defendant to reinstate her in Category B as from 1 November 1980, having regard to the normal development of her career, with all the attendant consequences in law in particular as regards the acquisition of pension points in respect of the periods before and after her dismissal;

( iii ) order the defendant to make good the damage resulting from the loss of her salary, which, according to the applicant, amounts to FF 200 000 as regards the period prior to her dismissal ( 1981 to 1984 ) and a sum at least equal to that amount as a result of her "sudden dismissal", the final amount to be calculated by an expert .

C - Objection of inadmissibility

8 . In its defence, the Parliament raised the preliminary objection that the applicant' s claims were inadmissible . I therefore propose to begin by considering that objection .

( a ) First claim

9 . According to the Parliament, in claiming the equivalent of seven months' salary by way of additional notice, the applicant is calling in question the legality of her dismissal under the Staff Regulations, which should in her view have complied with the 10-month period of notice referred to in Article 47 ( 2 ) ( a ) of the Conditions of Employment .

10 . Since that is the measure adversely affecting her, the applicant should have lodged a complaint within the three-month period prescribed by Article 90 ( 2 ) of the Staff Regulations .

11 . The letter notifying her of her dismissal is dated 15 October 1984 . Although the applicant has not indicated the date on which she received the letter, there is no doubt that the termination of the contract took effect as from 1 December 1984, with the result that she must have learnt of her dismissal before that date .

12 . As the complaint was dated 11 April 1985 it was out of time and the application must therefore be considered inadmissible pursuant to Article 91 ( 2 ) of the Staff Regulations .

13 . In her reply, the applicant maintains that the period prescribed by Article 90 ( 2 ) of the Staff Regulations cannot be raised as a plea against her on the ground that persons working in France for any other employer are accorded by French law a longer period for lodging complaints . Hence to require her to comply with the period prescribed by the Staff Regulations is contrary to Article 6 of the European Convention on Human Rights .

14 . It is quite clear that the European Parliament' s view is correct .

15 . In the first place, French law is not applicable to this case since the applicant is subject exclusively to the Conditions of Employment and the Staff Regulations, which do not present any lacunae as regards the point at issue .

16 . In the second place, there is no evidence, or even any indication, that the rights of the defence provided for by the European Convention on Human Rights have been violated . In particular, the requirements of Article 6, according to which everyone is entitled to a fair and public hearing by an independent and impartial tribunal, are in no way called in question by Article 90 of the Conditions of Employment and are fully satisfied in these proceedings . Nor is it at all clear in what respect the Parliament has infringed the European Convention on Human Rights by applying the Conditions of Employment .

17 . Moreover, that Convention does not form part of Community law but supplies "guidelines which should be followed" in connection with the protection of fundamental rights in the Community . ( 1 )

18 . Accordingly, the first claim must be considered inadmissible under Article 91 ( 2 ) of the Staff Regulations on the ground that the complaint was submitted out of time .

( b ) Second claim

19 . The applicant challenges her "reclassification" by the addition of a rider to the contract on 7 April 1981 .

20 . However, that "reclassification" was not the result of a unilateral act by the Parliament . She agreed to it by signing the new terms of the contract .

21 . In any event, the applicant did not complain until 11 April 1985, that is to say some years later . As her complaint is clearly out of time, the application is inadmissible by virtue of Article 91 ( 2 ) of the Staff Regulations .

22 . The applicant' s argument that the period prescribed by Article 90 of the Staff Regulations is inapplicable to her inasmuch as it is contrary to the European Convention on Human Rights or to French law is no more tenable in relation to this claim that it was in relation to the previous claim .

( c ) Third claim

23 . With regard to the claim for compensation for the damage sustained by the applicant owing to the loss of her salary before and after her dismissal, it is based on the alleged illegality of certain measures taken by the Parliament to the detriment of the applicant' s interests .

24 . In that regard, the case-law of the Court is unequivocal . Where the action for damages has its origin in the alleged illegality of the institutions' decisions "it cannot ... be distinguished from an action for annulment ". As the basis for appeals lies in Article 179 of the EEC Treaty, they are subject to the time-limits laid down in Articles 90 and 91 of the Staff Regulations . ( 2 )

25 . Accordingly, the inadmissibility of the request for annulment must inevitably bring with it the inadmissibility of the claim for damages . ( 3 )

26 . That conclusion, in so far as it relates to these proceedings, clearly applies to the claim regarding the period prior to the applicant' s dismissal .

27 . However, it is unclear whether the applicant' s claim for annulment was also directed against the measure terminating the contract itself; she would appear to be challenging only the three-month period of notice that she was given and her "sudden" dismissal "for reasons which are neither serious nor genuine ". She therefore seeks the award of damages on account of "her sudden dismissal" and of the fact that the Conditions of Employment do not provide for compensation in the case of a member of the temporary staff dismissed by one of the political groups in the Parliament .

28 . Once again, this claim, like the others, must be declared inadmissible . The applicant had an opportunity to seek the annulment of the measure terminating her contract within the period prescribed by the Staff Regulations and she may not obtain equivalent benefits by means of a claim for damages based on the alleged illegality of that measure which may no longer be challenged as the aforesaid period has purely and simply been allowed to expire . ( 4 )

29 . It is clear, as we saw in connection with the first submission, that the time-limits laid down apply to the applicant just as to any other Community servant .

30 . The claim for damages must therefore be regarded as inadmissible .

D - Substance

31 . In the light of the foregoing considerations, I propose to consider the substance of the applicant' s claims briefly and only in the alternative .

( a ) First claim

32 . The applicant argues that, as she was employed under a contract for an indefinite period, she should have been given the maximum period of notice ( 10 months ) provided for by Article 47 ( 2 ) ( a ) of the Conditions of Employment .

33 . That argument is not borne out by a careful reading of the provision in question . The 10-month period provided for therein applies only to staff covered by Article 2 ( d ) of the Conditions of Employment, that is to say staff engaged to fill a permanent post paid from research and investment appropriations .

34 . That was not the position with regard to the applicant, whose contract was covered by Article 2 ( c ) of the Conditions of Employment, which applies to "staff, other than officials of the Communities, engaged to assist either a person holding an office provided for in the Treaties establishing the Communities, or the Treaty establishing a Single Council and a Single Commission of the European Communities, or the elected president of one of the institutions or organs of the Communities or the elected chairman of one of the political groups in the European Parliament ".

35 . Clearly, it is not for the Parliament to prove that that was not the case . Moreover, as the defendant points out, it is clear from Article 87 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities ( 5 ) that the appropriations relating to research and investment are available only to the Commission .

36 . As I said earlier, French law is inapplicable to the present situation, which is governed exclusively by Community law ( namely the Staff Regulations and Conditions of Employment ).

37 . Thus the maximum period of notice to which the applicant was entitled was three months, as provided for by Article 47 ( 2 ) ( a ) of the Conditions of Employment .

38 . Accordingly, the first claim is manifestly unfounded .

( b ) Second claim

39 . The applicant claims that she should be reinstated in Grade B3 with retroactive effect from the time when she was "demoted" to Grade C2, Step 5, in view of the fact that she continued to perform the duties of an official in Category B .

40 . According to the Parliament, the claim must clearly be founded on proof that the applicant' s classification in Grade C2 was unlawful or open to challenge on some other ground, a possibility which has not even been suggested by the applicant .

41 . The fact remains that, once she was informed that her contract would be terminated as from 1 August 1980 for reasons connected with the service and in the interests of the service, the applicant was able to continue to perform her duties at the group' s secretariat in Paris - after pressure had apparently been exerted from various quarters - on the basis of a fresh contract which she accepted by signing a rider to the original contract on 7 April 1981 .

42 . Accordingly, as there is no evidence of illegality in the fact that a new status was assigned to the applicant, the second claim must also be regarded as wholly unfounded .

( c ) Third claim

43 . The conclusion which I reached in connection with the previous claim precludes recognition of any basis for the claim for damages in respect of the loss of income alleged by the applicant for the period between 1 November 1980 and the date on which her contract came to an end, since no illegality was involved .

44 . With regard to the claim for damages on account of her "sudden dismissal for reasons which are neither serious nor genuine", it is sufficient to recall that, according to the Court, ( 6 ) "Article 47 of the Conditions of Employment of Other Servants provides tht the employment of temporary staff shall cease, ... where the contract is for an indefinite period, at the end of the period of notice stipulated in the contract" and that "the justification for the unilateral termination of a contract of employment, expressly provided for in the aforementioned provision ... is to be found in the contract of employment and therefore reasons do not have to be stated for it ".

45 . Furthermore, it is also clear from Article 47 ( 2 ) of the Conditions of Employment that, as the Court has already held, ( 7 ) "it lies within the discretion of the competent authority to terminate a contract concluded for an indefinite period, provided that the period of notice stipulated in the contract is granted and that that period is in accordance with the said provision ".

46 . In this case, the termination of the contract was, moreover, expressly justified by the change in the composition of the Parliament following the last election . In addition, the applicant may qualify for a temporary unemployment grant under the provisions approved on 4 July 1984 by the enlarged Bureau of the Parliament .

47 . Accordingly, the claims for damages are unfounded .

E - Conclusion

48 . I therefore suggest that the Court should :

dismiss the application as inadmissible;

in the alternative, dismiss it as unfounded .

49 . Under Article 69 ( 2 ) in conjunction with Article 70 of the Rules of Procedure, the parties should be ordered in principle to bear their own costs .

(*) Translated from the Portuguese .

( 1 ) See the judgment of 14 May 1974 in Case 4/73 Nold v Commission (( 1974 )) ECR 491 at p . 507 .

( 2 ) Judgment of 21 February 1974 in Joined Cases 15 to 33, 52, 53, 57 to 109, 116, 117, 123, 132 and 135 to 137/73 Schots-Kortner v Council, Commission and Parliament (( 1974 )) ECR 177 at pp . 188 and 189 .

( 3 ) Judgment of 12 December 1967 in Case 46/67 Muller v Commission (( 1967 )) ECR 365 at p . 374; and judgment of 24 June 1971 in Case 53/70 Vinck v Commission (( 1971 )) ECR 601 at p . 609 .

( 4 ) See the summary of the judgment in Vinck, cited above .

( 5 ) OJ L 356, 31.12.1977, p . 1 .

( 6 ) Judgment of 18 October 1977 in Case 25/68 Schertzer v Parliament (( 1977 )) ECR 1729 at p . 1743 .

( 7 ) Judgment of 26 February 1981 in Case 25/80 De Briey v Commission (( 1981 )) ECR 637 at p . 645 .