2.

In the second place the applicant claims that the Commission was guilty of a wrongful act or omission in determining the nature of her contract of employment. They wrongly treated the applicant as an expert; with regard to the contracts for appointment as a member of the auxiliary staff it must be objected that they applied for more than one year and that this arrangement was selected again after the applicant had already been employed for three years as a member of the temporary staff. She claims that this represents an infringement of Article 52 of the Conditions of Employment as well as of the duty to assist employees to which reference is made in Article 54 of the Conditions of Employment by reference to Article 24 of the Staff Regulations of Officials. The applicant in this way suffered damage because the relevant periods were not taken into account for the calculation of her pension. She claims that for this the most appropriate compensation would be as it were in kind, that is to say by the periods in question being treated in the same way as periods of employment of temporary staff. As regards this attempt to justify the applicant's claim it must be admitted without further ado that the Commission has behaved unlawfully at certain times and in certain respects — which is the first if not the only precondition for an action to establish liability on the part of the administration. This is true inasmuch as a contract was concluded with the applicant as an expert although in fact there arose a regular relationship of employment. It is true also inasmuch as the contracts for an appointment as a member of the auxiliary staff exceeded the permissible period of one year (Article 52 (b) of the Conditions of Employment). It must of course be borne in mind that the Conditions of Employment came into force only on 1 January 1962 so that it is only possible to speak of the illegality in question from 1 January 1963. On the other hand I should not like to assume that there was a similar illegality also for the period after the expiration of the employment as a member of the temporary staff. At that time the contract as a member of the auxiliary staff applied only for a period of eleven months; furthermore in my view it is not possible to deduce from Community law a prohibition on concluding a further contract as a member of the auxiliary staff after the expiration of employment as a member of the temporary staff. However, for this period at least, that is to say for the year 1972, it must be stated that there has been a breach of duty to assist an employee because the Commission was not sufficiently concerned to secure an alteration in the status of the applicant in a manner which would be satisfactory as regards her claims to pension. Over and above this it may in my view also be accepted that there was a breach of this duty for an essentially earlier period because the intention was formed at a very early date to employ the applicant permanently — I refer in this respect to Annexes 25 and 30 of the application — because her suitability for establishment as an official was already clear after her participation in the competition in 1965 and because the Commission obviously — as became fully clear in the oral procedure — undertook the filling of the post on the basis of the competition in question in a manner which is open to objection since the candidate who was appointed was not assigned to the duties mentioned in the competition, which are identical with those of the applicant, but a very short time later was assigned to other duties. However, as I have already stated, the fact that provisions of law have been infringed is not sufficient. It must further be established that the damage alleged has resulted directly therefrom, that is to say that there was a possibility to produce by other means, a situation according to which it would have been permissible to take the years of service into account for the calculation of pension; furthermore it must be possible to speak of negligence. According to the explanations already given the decisive question is whether there was in existence a permanent post which could be used for the applicant or whether such a post could and should have been created. If this was not the case then in any event the finding that the applicant was wrongly employed on the basis of a contract as expert, means that for that period she must be regarded as a member of the auxiliary staff; the other finding, that contracts as a member of the auxiliary staff were concluded for a period exceeding one year in contravention of Article 52 (b) of the Conditions of Employment, would then have the consequence that the relationship of employment ought to have been ended at the latest on 1 January 1963. With regard to this important question it must be noted first that before the beginning of 1964 there was in existence no permanent post with the duties of the applicant in the Information Office. Nor has any evidence been given for this period which would justify the assumption that the provision of such a post would have been possible and appropriate. However, it must not be forgotten that we are here dealing with the exercise of the right of an authority to set up its own organization, in which connexion a wide discretion is available. In my view there is not the slightest indication that, as regards the distribution of the posts which at the beginning were in short supply, this discretion was wrongfully exercised. However, a post was available from the beginning of 1964 until the decision as to how it was to be occupied, and, as has been shown, such a decision was adopted at the end of 1965 in a manner which was open to objection. At least for this period it would have been possible to avoid an illegality to the disadvantage of the applicant by her temporary assignment to this post. Moreover it is impossible to see any logical reason why this was not done such as would provide a justification for denying the existence of a wrongful act or omission, as the carrying out of the competition would certainly not have been impeded by an assignment of this post for an indefinite period, terminable at the proper time, to the applicant. For the subsequent period there was then no longer any post available apart from the years 1969 to 1971, for which it was possible for a post to be “borrowed” from the Directorate General for Agriculture and this was in fact used for the applicant. For this period however, that is to say for 1966, 1967 and 1968 and 1972, simply to adopt the same conclusion as for the period before 1964 does not seem to me to carry conviction. The problem of the satisfactory settlement of the applicant's administrative status had become especially urgent at the latest from the middle of the sixties. This and the fact that for the years 1969 to 1971 it was possible for a post to be provisionally provided, might rather justify the conclusion that a corresponding solution ought to have been sought for the years 1966 to 1968 and for 1972 and that in such a large organization this ought to have been possible for the Commission. However, if this conclusion is not regarded as justifiable in the present state of our knowledge, it would presumably be appropriate to obtain a further clarification of the question of the availability of posts in other departments of the Commission, unless an appropriate and equally valid solution is to be found by means of considerations which play a part in the framework of the third submission which still remains to be investigated. In so far as the preconditions for a claim to establish liability on the part of the administration are obviously present — that is to say for the period from the beginning of 1964 to the end of 1965 — it still remains to consider two objections of the Commission before it can be acknowledged that for the period in question in relation to the calculation of her pension the applicant has a claim to restitutio in integrum. These objections relate to the question of the applicant's contributory fault, and to the fact that we are not dealing with present and certain damage but at the most with future hypothetical damage, for proving which there are strict requirements according to the case-law of the Court. In my view these points need not detain us long. On the one hand I am convinced that we can hardly speak of any relevant contributory fault on the part of the applicant arising from the fact that she assented to an extension of her contracts as a member of the auxiliary staff in excess of one year and did not exert herself to secure a regularization of her position by applying for other posts for which the competitions were held. In this respect in is sufficient to refer to the fact that there was an unreserved desire to keep the applicant because of her services and because the duties which she performed were regarded as important; in this respect the constant attempts to regularize her position and the repeated promises to do so are also of significance. In this connexion I refer to the notes of her superiors which have been laid before the Court as Annexes 25, 30 and 33 to the application. On the other hand as regards the problem of future damage which will only be realized when she enters upon her retirement I would take the view that it is sufficently foreseeable within the meaning of the case-law referred to by the Commission. Furthermore it is not irrelevant in respect of the already existing and continually increasing right of future enjoyment to speak of existing and not merely hypothetical damage for which compensation may be awarded now even if this does not mean the acknowledgment of a present financial entitlement. Thus, in so far as the application is based on a breach of official duty it may be recorded that at least for part of the period in question, namely for the years 1964 and 1965, it is in any case well founded and that the Commission is therefore required to take at least that period into account for the calculation of pension.